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UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-K

(Mark One)

 

[X]

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2016

or

 

[   ]

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

Commission file number 1-15226

 

 

LOGO

ENCANA CORPORATION

(Exact name of registrant as specified in its charter)

 

Canada    Not Applicable
(State or other jurisdiction of incorporation or organization)    (I.R.S. Employer Identification No.)

Suite 4400, 500 Centre Street S.E., P.O. Box 2850, Calgary, Alberta, Canada, T2P 2S5

(Address of principal executive offices)

Registrant’s telephone number, including area code (403)  645-2000

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each

class

  

Name of each exchange

on which registered

Common Shares    New York Stock Exchange

Securities registered pursuant to Section  12(g) of the Act: None

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes [X] No [    ]

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes [    ] No [X]

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No [    ]

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes [X] No [    ]

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [X]

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. Large accelerated filer [X] Accelerated filer [    ] Non-accelerated filer [    ] Smaller reporting company [    ]

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act):

Yes [    ] No [X]

 

Aggregate market value of the voting and non-voting common equity held by non-affiliates of registrant as of June 30, 2016    $       6,621,347,962      

Number of registrant’s common shares outstanding as of February 17, 2017

     973,064,884      

Documents Incorporated by Reference

Portions of registrant’s definitive proxy statement (“Proxy Statement”) for the registrant’s 2017 annual meeting of shareholders to be held May 2, 2017 (to be filed with the Securities and Exchange Commission prior to April 30, 2017) are incorporated by reference in Part III of this Annual Report on Form 10-K.


Table of Contents

ENCANA CORPORATION

FORM 10-K

TABLE OF CONTENTS

 

PART I   

Items 1 and 2. Business and Properties

     6  

Item 1A.

 

Risk Factors

     27  

Item 1B.

 

Unresolved Staff Comments

     36  

Item 3.

 

Legal Proceedings

     36  

Item 4.

 

Mine Safety Disclosures

     36  
PART II   

Item 5.

  Market for Registrant’s Common Equity, Related Shareholder Matters and Issuer Purchases of Equity Securities      37  

Item 6.

 

Selected Financial Data

     40  

Item 7.

 

Management’s Discussion and Analysis of Financial Condition and Results of Operations

     42  

Item 7A. 

 

Quantitative and Qualitative Disclosures about Market Risk

     73  

Item 8.

 

Financial Statements and Supplementary Data

     75  

Item 9.

 

Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

     132  

Item 9A.

 

Controls and Procedures

     132  

Item 9B.

 

Other Information

     132  
PART III   

Item 10.

 

Directors, Executive Officers and Corporate Governance

     133  

Item 11.

 

Executive Compensation

     133  

Item 12.

  Security Ownership of Certain Beneficial Owners and Management and Related Shareholder Matters      133  

Item 13.

 

Certain Relationships and Related Transactions, and Director Independence

     133  

Item 14.

 

Principal Accountant Fees and Services

     133  
PART IV   

Item 15.

 

Exhibits and Financial Statement Schedules

     134  

Signatures

     137  

 

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DEFINITIONS

Unless the context otherwise indicates, references to “us,” “we,” “our,” “ours,” “Encana” and the “Company” refer to Encana Corporation and its consolidated subsidiaries. In addition, the following are other abbreviations and definitions of certain terms used within this Annual Report on Form 10-K:

“AECO” means Alberta Energy Company and is the Canadian benchmark price for natural gas.

“ASC” means Accounting Standards Codification.

“ASU” means Accounting Standards Update.

“bbl” or “bbls” means barrel or barrels.

“bbls/d” means barrels per day.

“Bcf” means billion cubic feet.

“Bcf/d” means billion cubic feet per day.

“BOE” means barrels of oil equivalent.

“BOE/d” means barrels of oil equivalent per day.

“Btu” means British thermal units, a measure of heating value.

“DD&A” means depreciation, depletion and amortization expenses.

“FASB” means Financial Accounting Standards Board.

“LIBOR” means London Interbank Offered Rate.

“Mbbls” means thousand barrels.

“Mbbls/d” means thousand barrels per day.

“MBOE” means thousand barrels of oil equivalent.

“MBOE/d” means thousand barrels of oil equivalent per day.

“Mcf” means thousand cubic feet.

“Mcf/d” means thousand cubic feet per day.

“MD&A” means Management’s Discussion and Analysis of Financial Condition and Results of Operations.

“MMbbls” means million barrels.

“MMbbls/d” means million barrels per day.

“MMBOE” means million barrels of oil equivalent.

“MMBOE/d” means million barrels of oil equivalent per day.

“MMBtu” means million Btu.

“MMcf” means million cubic feet.

“MMcf/d” means million cubic feet per day.

“NGL” or “NGLs” means natural gas liquids.

“NYMEX” means New York Mercantile Exchange.

“NYSE” means New York Stock Exchange.

“OPEC” means Organization of the Petroleum Exporting Countries.

“SEC” means United States Securities and Exchange Commission.

“Standardized measure” means the present value of after-tax future net revenues discounted at 10% per annum.

“S&P 500” means Standard and Poor’s 500 index.

“S&P/TSX Composite Index” means Standard and Poor’s index for Canadian equity markets.

 

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“TSX” means Toronto Stock Exchange.

“U.S.”, “United States” or “USA” means United States of America.

“U.S. GAAP” means U.S. Generally Accepted Accounting Principles.

“WTI” means West Texas Intermediate.

CONVERSIONS

In this Annual Report on Form 10-K, a conversion of natural gas volumes to BOE is on the basis of six Mcf to one bbl. BOE is based on a generic energy equivalency conversion method primarily applicable at the burner tip and does not represent economic value equivalency at the wellhead. Given that the value ratio based on the current price of oil as compared to natural gas is significantly different from the energy equivalency of 6:1, utilizing a conversion on a 6:1 basis may be misleading as an indication of value, particularly if used in isolation.

CONVENTIONS

Unless otherwise specified, all dollar amounts are expressed in U.S. dollars, all references to “dollars”, “$” or “US$” are to U.S. dollars and all references to “C$” are to Canadian dollars. All amounts are provided on a before tax basis, unless otherwise stated. In addition, all information provided herein is presented on an after royalties basis.

The term “liquids” is used to represent oil, NGLs and condensate. The term “liquids rich” is used to represent natural gas streams with associated liquids volumes. The term “play” is used to describe an area in which hydrocarbon accumulations or prospects of a given type occur. Encana’s focus of development is on hydrocarbon accumulations known to exist over a large areal expanse and/or thick vertical section and are developed using hydraulic fracturing. This type of development typically has a lower geological and/or commercial development risk and lower average decline rate, when compared to conventional development.

The term “core asset” refers to plays that are the focus of the Company’s current capital investment and development plan. The Company continually reviews funding for development of its plays based on strategic fit, profitability and portfolio diversity and, as such, the composition of plays identified as a core asset may change over time.

References to information contained on the Company’s website at www.encana.com are not incorporated by reference into, and does not constitute a part of, this Annual Report on Form 10-K.

FORWARD-LOOKING STATEMENTS AND RISK

This Annual Report on Form 10-K and documents incorporated herein by reference contain certain forward-looking statements or information (collectively, “forward-looking statements”) within the meaning of applicable securities legislation. Forward-looking statements include: composition of the Company’s core assets, including the allocation of capital and focus of development plans; growth in long-term shareholder value; statements with respect to the Company’s strategic objectives including capital allocation strategy, focus of investment, growth of high margin liquids volumes, operating efficiencies, ability to reduce costs and ability to preserve balance sheet strength; the continued evolution of the Company to drive greater productivity and cost efficiencies while reducing its environmental footprint; efficiencies resulting from the Company’s multi-basin portfolio; balancing commodity portfolio; anticipated commodity prices; ability to accelerate activity levels; ability to optimize well and completion designs, including changes to lateral lengths drilled, stage and well spacing; anticipated drilling, number of drilling rigs and the success thereof; anticipated drilling costs and cycle times; anticipated proceeds and future benefits from various joint venture, partnership and other agreements; expected construction of compression and processing capacity; expansion of future midstream services; estimates of reserves and resources; expected production and product types; ability to replicate successful test wells to future production; statements regarding anticipated cash flow and leverage ratios; anticipated cash and cash equivalents; anticipated hedging and outcomes of risk management program; managing risk, including the impact of changes in laws and

 

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regulations; level of expenditures and impact of environmental legislation; adequacy of provisions for abandonment and site reclamation costs; financial flexibility and discipline; access to cash and cash equivalents and other methods of funding; the ability to meet financial obligations, manage debt and financial ratios, finance growth and compliance with financial covenants; impact to the Company as a result of a downgrade to its credit rating; access to the Company’s credit facilities; planned annualized dividend and the declaration and payment of future dividends, if any; the adequacy of the Company’s provision for taxes and legal claims; the projections and expectation of meeting the targets contained in the Company’s corporate guidance; ability to manage cost inflation and expected cost structures, including expected operating, transportation and processing and administrative expenses; competitiveness and pace of growth of the Company’s assets within North America and against its peers; outlook of oil and gas industry generally and impact of geopolitical environment; returns from the Company’s core assets; flexibility and source of funding of capital spending plans; anticipated staffing levels; expected future interest expense; the Company’s commitments and obligations; potential future discounts, if any, in connection with the Company’s dividend reinvestment program; statements with respect to future ceiling test impairments; and the possible impact and timing of accounting pronouncements, rule changes and standards.

Readers are cautioned against unduly relying on forward-looking statements which, by their nature, involve numerous assumptions, risks and uncertainties that may cause such statements not to occur, or results to differ materially from those expressed or implied. These assumptions include: future commodity prices and differentials; foreign exchange rates; the Company’s ability to access its revolving credit facilities and shelf prospectuses; assumptions contained in the Company’s corporate guidance and as specified herein; data contained in key modeling statistics; availability of attractive hedges and enforceability of risk management program; effectiveness of the Company’s drive to productivity and efficiencies; results from innovations; the expectation that counterparties will fulfill their obligations under the gathering, midstream and marketing agreements; access to transportation and processing facilities where Encana operates; assumed tax, royalty and regulatory regimes; enforceability of transaction agreements; and expectations and projections made in light of, and generally consistent with, Encana’s historical experience and its perception of historical trends, including with respect to the pace of technological development, the benefits achieved and general industry expectations.

Risks and uncertainties that may affect these business outcomes include: the ability to generate sufficient cash flow to meet the Company’s obligations; risks inherent to completing transactions on a timely basis or at all and adjustments that may impact the expected value to Encana; commodity price volatility; ability to secure adequate product transportation and potential pipeline curtailments; variability and discretion of Encana’s board of directors (the “Board of Directors”) to declare and pay dividends, if any; the timing and costs of well, facilities and pipeline construction; business interruption and casualty losses or unexpected technical difficulties; counterparty and credit risk; risk and effect of a downgrade in credit rating, including below an investment-grade credit rating, and its impact on access to capital markets and other sources of liquidity; fluctuations in currency and interest rates; risks inherent in the Company’s corporate guidance; failure to achieve anticipated results from cost and efficiency initiatives; risks inherent in marketing operations; risks associated with technology; changes in or interpretation of royalty, tax, environmental, greenhouse gas, carbon, accounting and other laws or regulations; risks associated with existing and potential future lawsuits and regulatory actions made against the Company; impact to the Company as a result of disputes arising with its partners, including the suspension by its partners of certain of their obligations and the inability to dispose of assets or interests in certain arrangements; the Company’s ability to acquire or find additional reserves; imprecision of reserves estimates and estimates of recoverable quantities of natural gas and liquids from plays and other sources not currently classified as proved, probable or possible reserves or economic contingent resources, including future net revenue estimates; risks associated with past and future acquisitions or divestitures of certain assets or other transactions or receipt of amounts contemplated under the transaction agreements (such transactions may include third-party capital investments, farm-outs or partnerships, which Encana may refer to from time to time as “partnerships” or “joint ventures” and the funds received in respect thereof which Encana may refer to from time to time as “proceeds”, “deferred purchase price” and/or “carry capital”, regardless of the legal form) as a result of various conditions not being met; and other risks described in Item 1A. Risk Factors of this Annual Report on Form 10-K and risks and uncertainties impacting Encana’s business as described from time to time in the Company’s other periodic filings with the SEC incorporated by reference in this Annual Report on Form 10-K.

 

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Although the Company believes the expectations represented by such forward-looking statements are reasonable, there can be no assurance that such expectations will prove to be correct. Readers are cautioned that the assumptions, risks and uncertainties referenced above and in the documents incorporated by reference herein are not exhaustive. Forward-looking statements are made as of the date of this document (or, in the case of a document incorporated by reference, the date of such document incorporated by reference) and, except as required by law, the Company undertakes no obligation to update publicly or revise any forward-looking statements. The forward-looking statements contained or incorporated by reference in this Annual Report on Form 10-K are expressly qualified by these cautionary statements.

The reader should read carefully the risk factors described in the documents incorporated by reference in this Annual Report on Form 10-K for a description of certain risks that could, among other things, cause actual results to differ from these forward-looking statements.

 

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PART I

Items 1 and 2. Business and Properties

GENERAL

Encana is a leading North American energy producer that is focused on developing its multi-basin portfolio of natural gas, oil and NGL producing plays. Encana’s operations also include the marketing of natural gas, oil and NGLs. All of Encana’s reserves and production are located in North America.

Encana’s registered and principal office is located at 4400, 500 Centre Street S.E., Calgary, Alberta T2P 2S5, Canada. Encana’s common shares are listed and posted for trading on the TSX and on the NYSE under the symbol “ECA”. Encana is incorporated under the Canada Business Corporations Act (the “CBCA”) and was formed in 2002 through the business combination of two predecessor companies.

Available Information

Encana is subject to the informational requirements of the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”) and, in accordance with the Exchange Act, it also files reports with and furnishes other information to the SEC. Effective January 1, 2017, Encana was required to comply with the reporting requirements applicable to U.S. domestic issuers. Previously, under the multijurisdictional disclosure system adopted by Canada and the United States, reports and other information (including financial information) were prepared, in part, in accordance with the disclosure requirements of Canada, which differ from those in the United States. The public may read any document Encana files with or furnishes to the SEC at the SEC’s public reference room at Room 1580, 100 F Street, N.E., Washington, D.C. 20549. Readers may also obtain copies of the same documents from the public reference room of the SEC at 100 F Street, N.E., Washington D.C. 20549 by paying a fee. Please call the SEC at 1-800-SEC-0330 or contact them at www.sec.gov for further information on the public reference room. Encana’s filings are also electronically available from the SEC’s Electronic Document Gathering, Analysis, and Retrieval system (“EDGAR”), which can be accessed at www.sec.gov, or via the System for Electronic Document Analysis and Retrieval (“SEDAR”), which can be accessed at www.sedar.com , as well as from commercial document retrieval services.

Copies of this Annual Report on Form 10-K and the documents incorporated herein by reference may be obtained on request without charge from Encana’s Corporate Secretary, 4400, 500 Centre Street S.E., P.O. Box 2850, Calgary, Alberta T2P 2S5, Canada, telephone: (403) 645-2000. Encana also provides access without charge to all of the Company’s SEC filings, including copies of this Annual Report on Form 10-K and the documents incorporated herein by reference, current reports on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act, as soon as reasonably practicable after filing or furnishing, on Encana’s website located at www.encana.com .

Enforceability of Civil Liabilities

Encana is a corporation incorporated under and governed by the CBCA. Some of Encana’s officers and directors, and some of the experts named in this Annual Report on Form 10-K, are Canadian residents, and many of Encana’s assets or the assets of its officers and directors and the experts are located outside the United States. Encana has appointed an agent for service of process in the United States, but it may be difficult for holders of common shares who reside in the United States to effect service within the United States upon those directors, officers and experts who are not residents of the United States. It may also be difficult for holders of common shares who reside in the United States to realize in the United States upon judgments of courts of the United States predicated upon our civil liability and the civil liability of our officers and directors and experts under the United States federal securities laws.

 

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STRATEGY

The Company is committed to growing long-term shareholder value through a disciplined focus on generating profitable growth. The Company’s key objectives include:

 

   

Exercising a disciplined capital allocation strategy that focuses investment on a limited number of core assets

   

Growing high margin liquids volumes

   

Maximizing profitability through operational efficiencies and reducing costs

   

Preserving balance sheet strength

The Company has a history of identifying and entering into strategic plays that can be developed with industry leading horizontal drilling and completions methods and leveraging technology to profitably develop the oil and gas resources within the plays. Encana continually strives to improve operating efficiencies, foster technological innovation and lower its cost structures while reducing its environmental footprint through play optimization. Capital and operating efficiencies are achieved across Encana’s multi-basin portfolio through the rapid deployment of successful operating practices that are repeated across the Company’s operations, optimizing equipment and processes and by applying continuous improvement techniques.

Encana’s capital investment strategy is focused on quality growth from a limited number of core, high margin and scalable projects, while balancing the commodity portfolio and optimizing performance from the remainder of the Company’s resource base.

During 2016, the oil and natural gas industry continued to experience low commodity prices driven by supply and demand imbalances. In spite of this trend, Encana has continued to execute on its strategy focusing on lowering operational and capital cost structures, enhancing operating efficiencies, and reducing debt to maintain appropriate liquidity and financial flexibility. Encana also emphasized financial discipline by further focusing capital investment to a limited number of core assets with high growth and return potential, reducing activity levels in non-strategic assets and bringing costs into alignment with the current commodity price environment. The Company believes that continued execution of its strategy will ensure Encana is well positioned for the current price environment and ready to accelerate activity levels if commodity prices improve in the future. For additional discussion on the Company’s results, see Item 7 of this Annual Report on Form 10-K.

REPORTING SEGMENTS

Encana’s predominant operations are focused on the finding and development of natural gas and oil reserves. The Company is also focused on creating and capturing additional value through its market optimization segment. The Company conducts substantially all of its business through subsidiaries. Encana’s operating and reportable segments are: (i) Canadian Operations; (ii) USA Operations; and (iii) Market Optimization.

 

   

Canadian Operations includes the exploration for, development of, and production of natural gas, oil and NGLs and other related activities within Canada. Core assets that are part of Encana’s strategic focus to accelerate growth include: Montney in northeast British Columbia and northwest Alberta and Duvernay in west central Alberta. Other Upstream Operations comprise assets that are not part of Encana’s current strategic focus and include: Wheatland in southern Alberta, Horn River in northeast British Columbia and Deep Panuke located offshore Nova Scotia.

 

   

USA Operations includes the exploration for, development of, and production of natural gas, oil and NGLs and other related activities within the U.S. Core assets that are part of Encana’s strategic focus to accelerate growth include: Eagle Ford in south Texas and Permian in west Texas. Other Upstream Operations comprise assets that are not part of Encana’s current strategic focus and primarily include: San Juan in northwest New Mexico, Piceance in northwest Colorado and Tuscaloosa Marine Shale in east Louisiana and west Mississippi.

 

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Market Optimization activities are managed by the Midstream, Marketing & Fundamentals team, which is primarily responsible for the sale of the Company’s proprietary production to third party customers and enhancing the associated netback price. Market Optimization activities also include third party purchases and sales of product to provide operational flexibility and cost mitigation for transportation commitments, product type, delivery points and customer diversification.

For additional information regarding Encana’s reporting segments, see Note 2 of Encana’s audited Consolidated Financial Statements under Item 8 of this Annual Report on Form 10-K.

OIL AND GAS PROPERTIES AND ACTIVITIES

The following map outlines the location of Encana’s North American landholdings and assets as at December 31, 2016.

 

 

LOGO

 

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The term ‘Core Asset’ in the map above reflects plays identified with high growth and return potential and are the focus of the Company’s current capital investment and development plan. The term ‘Other’ in the map above reflects base and option value plays. Base plays are allocated funds to target efficiency programs that include enhancing operational efficiency and cost reductions rather than development programs. Option value plays are emerging plays that may receive funding for development based on strategic fit, play profitability driven by price and energy fundamentals and portfolio diversity.

Canadian Operations

Overview: In 2016, the Canadian Operations had total capital investment of approximately $256 million and drilled approximately 44 net wells all of which were in Montney and Duvernay. Production averaged approximately 966 MMcf/d of natural gas, approximately 2.0 Mbbls/d of oil, and approximately 25.2 Mbbls/d of NGLs. At December 31, 2016, the Canadian Operations had an established land position in Canada of approximately 2.4 million net acres including approximately 1.2 million net undeveloped acres. In addition, the Canadian Operations accounted for 39% of production sales during 2016 and 50% of total proved reserves as at December 31, 2016.

During 2016, Encana divested of approximately 54,200 net acres related to the Gordondale assets in Montney located in northwestern Alberta for proceeds of approximately $455 million, after closing adjustments.

The following tables summarize the Canadian Operations landholdings, producing wells and daily production as at and for the periods indicated.

 

Landholdings   Developed
Acreage
    Undeveloped
Acreage
    Total
Acreage
    

Average 

Working 

Interest 

 
(thousands of acres at December 31, 2016)         Gross          Net             Gross          Net             Gross          Net       

Montney

    595          377         772          513         1,367          890          65%   

Duvernay

    106          44         530          325         636          369          58%   

Other Upstream Operations (1)

    826          700         605          393         1,431          1,093          76%   

Total Canadian Operations

    1,527          1,121         1,907          1,231         3,434          2,352          68%   

(1) Other Upstream Operations includes Wheatland, Horn River and Deep Panuke.

Producing Wells

     Natural Gas     Oil           Total  
(number of wells at December 31, 2016) (1)          Gross          Net             Gross          Net                     Gross          Net   

Montney

     1,197          1,082         6          5           1,203          1,087   

Duvernay

     134          67         9          2           143          69   

Other Upstream Operations (2)

     5,241          5,096         24          16                 5,265          5,112   

Total Canadian Operations

     6,572          6,245         39          23                 6,611          6,268   
(1)

Figures exclude wells capable of producing, but not producing.

(2)

Other Upstream Operations includes Wheatland, Horn River and Deep Panuke.

 

                NGLs  
Production   Natural Gas
(MMcf/d)
    Oil
(Mbbls/d)
    Plant Condensate
(Mbbls/d)
    Other
(Mbbls/d)
         

Total

(Mbbls/d)

 
(average daily)         2016          2015             2016          2015             2016          2015             2016          2015                     2016            2015  

Montney (1)

    735          723         1.9          4.7         10.4          9.4         6.2          8.4           16.6          17.8  

Duvernay

    54          27         -          0.3         7.1          4.3         1.2          0.2           8.3          4.5  

Other Upstream Operations (2)

    177          221         0.1          0.6         0.1          0.2         0.2          0.3                 0.3          0.5  

Total Canadian Operations

    966          971         2.0          5.6         17.6          13.9         7.6          8.9                 25.2          22.8  
(1)

During 2016, Encana divested of the Gordondale assets in Montney. Production from Gordondale in 2016, prior to the disposition, averaged 45 MMcf/d of natural gas, 1.6 Mbbls/d of oil and 3.7 Mbbls/d of NGLs (2015 - averaged 96 MMcf/d of natural gas and 4.1 Mbbls/d of oil and 6.1 Mbbls/d of NGLs).

 
(2)

Other Upstream Operations includes Wheatland, Horn River and Deep Panuke.

 

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Montney

Montney is primarily a condensate rich natural gas play located in northeast British Columbia and northwest Alberta. Although the Montney landholdings include additional producing horizons, that being the Cadomin, Doig and Granite Wash formations, the current focus of development is on the Montney formation within the play. In 2016, total production from the play averaged approximately 735 MMcf/d of natural gas and approximately 18.5 Mbbls/d of oil and NGLs. As at December 31, 2016, Encana controlled approximately 890,000 net acres in the play.

Encana is currently targeting the development of natural gas and condensate rich locations in the Montney formation within the play, of which Encana controlled approximately 483,000 net acres, including 282,000 net undeveloped acres at December 31, 2016. The Montney formation has up to six stacked horizons spanning over 1,000 feet of stratigraphy and is being developed exclusively with horizontal well technology. In 2016, Encana continued to focus on drilling higher liquids content wells, drilling approximately 24 net horizontal wells and production averaged approximately 639 MMcf/d of natural gas and approximately 18.5 Mbbls/d of oil and NGLs in the Montney formation. Significant improvements have been achieved with respect to horizontal well completions with the application of multi-stage hydraulic fracturing. During 2016, Encana has continued to optimize completion designs and apply advanced technologies, reducing total development costs by approximately 26 percent, on a completed interval basis. During 2016, Encana also drilled wells with lateral lengths ranging from approximately 6,600 to 11,700 feet and tighter inter-well spacing ranging from approximately 650 to 1,000 feet. As Encana continues to optimize well and completion designs, lateral lengths drilled, stage and well spacing may change.

Encana has a partnership agreement with a subsidiary of Mitsubishi Corporation (“Mitsubishi”), the Cutbank Ridge Partnership (“CRP”), to jointly develop certain lands predominately in Montney. Under the agreement, Mitsubishi agreed to invest approximately C$2.9 billion for its 40 percent partnership interest in the CRP, of which approximately C$2.2 billion has been received as of December 31, 2016. In addition to its 40 percent of the CRP’s future capital funding investment, Mitsubishi is expected to invest the remaining amount of approximately C$0.7 billion under an agreed upon five-year development plan of the area, thereby reducing Encana’s capital funding commitment to 30 percent of the total expected capital investment over that development plan.

As at December 31, 2016, Encana has access to natural gas processing capacity of approximately 820 MMcf/d, of which approximately 600 MMcf/d is under contract with third parties under varying terms and duration and approximately 215 MMcf/d is owned by the Company. Encana also has access to gathering and compression capacity of approximately 895 MMcf/d, of which approximately 780 MMcf/d is under contract with third parties under varying terms and duration and approximately 110 MMcf/d is owned by the Company. In addition, Encana expects to have access to additional compression and processing facilities with capacity of approximately 480 MMcf/d and liquids handling of 49.1 Mbbls/d that are currently under construction and are expected to be completed in late 2017 to 2018.

Duvernay

Duvernay is an emerging liquids rich shale gas play located in west central Alberta and includes properties that are primarily located in the Duvernay formation, but also holds potential in other formations such as the Montney. As at December 31, 2016, Encana controlled approximately 369,000 net acres in the play.

The Duvernay formation within the play primarily comprises approximately 335,000 net acres, including 295,000 net undeveloped acres, and extends across the Simonette, Pinto, Edson and Willesden Green properties. Encana is currently targeting the development of condensate rich locations in the north and south Simonette areas of the formation using horizontal well technology and pad drilling. Encana is currently achieving significant improvements in drilling costs and cycle times through innovation and continuing to develop long-term take-away capacity. In 2016, Encana drilled approximately 20 net wells in the area and production averaged approximately 54 MMcf/d of natural gas and approximately 8.3 Mbbls/d of oil and NGLs. During 2016, Encana

 

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drilled wells with lateral lengths ranging from approximately 5,200 to 10,200 feet with tighter inter-well spacing ranging from approximately 490 to 1,300 feet. As Encana continues to optimize well and completion designs, lateral lengths drilled, stage and well spacing may change.

Encana has an agreement with a subsidiary of PetroChina Company Limited (“PetroChina”) to jointly explore and develop certain Duvernay lands. Under the agreement, PetroChina agreed to invest approximately C$2.18 billion for a 49.9 percent working interest in the lands. PetroChina has invested approximately C$2.08 billion as of December 31, 2016 and is expected to further invest approximately C$96.6 million over the remaining commitment period that expires in 2020, which will be used to fund half of Encana’s capital commitment.

Encana holds an approximate 50.1 percent ownership in three Simonette natural gas processing plants and the associated gathering and compression, of which Encana’s share of natural gas processing capacity is 78 MMcf/d with NGLs production capacity of 19.2 Mbbls/d. During 2016, natural gas processing capacity increased by 25 MMcf/d with the addition of a new plant in Simonette to support the Duvernay growth profile.

Other Upstream Operations:

Wheatland

Wheatland is located in southern Alberta and includes producing horizons such as the Lethbridge and Horseshoe Canyon formations, shallow sands formations including the Belly River, Medicine Hat and deeper natural gas formations including the Glauconitic and Mannville formations. Production averaged approximately 76 MMcf/d of natural gas and approximately 0.4 Mbbls/d of oil and NGLs. As at December 31, 2016, Encana had approximately 5,164 gross producing wells (5,059 net producing wells) and controlled approximately 757,000 net acres in the play, which includes 109,000 net undeveloped acres. Historically, Encana has used an integrated wellbore strategy with development focused on natural gas along the eastern edge of the Horseshoe Canyon Fairway. In 2016, Encana focused on play optimization, reducing production declines and lowering operating costs. At December 31, 2016, Encana controlled approximately 484,000 net acres in the Horseshoe Canyon Fairway.

Horn River

Horn River is located in northeast British Columbia, where development was historically in the Horn River Basin shales (Muskwa, Otter Park and Evie), which are upwards of 500 feet thick. In 2016, Encana’s natural gas production averaged approximately 58 MMcf/d. As at December 31, 2016, Encana had approximately 97 gross producing horizontal wells (49 net producing horizontal wells) and controlled approximately 168,000 net acres, which includes 147,000 net undeveloped acres in the Horn River Basin shales. Encana owns interest in natural gas compression capacity in Horn River of approximately 285 MMcf/d at various facilities in the area. Encana has a processing arrangement with a third party related to a previously planned expansion of the Cabin natural gas processing plant, for which commissioning and expansion was suspended in 2012.

Deep Panuke

Encana is the owner and operator of the Deep Panuke gas field located offshore Nova Scotia, which is approximately 250 kilometres southeast of Halifax on the Scotian shelf. Natural gas from Deep Panuke is produced and processed by an offshore Production Field Centre (“PFC”). The PFC is under a lease arrangement which has an initial term that expires in 2021, with the option to extend the lease for 12 successive one-year terms at fixed prices after the initial lease term. Produced gas is transported to Goldboro, Nova Scotia, via subsea pipeline which interconnects with the Maritimes & Northeast Pipeline, where the natural gas is ultimately transported to markets in eastern Canada and northeastern U.S.

In 2016, natural gas production averaged approximately 52 MMcf/d. Encana sells all natural gas produced from Deep Panuke under a long-term physical sales contract at the prevailing market prices in that region. At December 31, 2016, Encana had approximately 4 gross producing wells (4 net producing wells) and controlled approximately 30,000 net acres offshore Nova Scotia. Encana operates five of its six licenses in these areas.

 

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USA Operations

Overview:   In 2016, the USA Operations had total capital investment of approximately $873 million and drilled approximately 116 net wells all of which were in Eagle Ford and Permian. Production averaged approximately 417 MMcf/d of natural gas, approximately 71.7 Mbbls/d of oil, and approximately 23.2 Mbbls/d of NGLs. At December 31, 2016, the USA Operations had an established land position of approximately 1.2 million net acres including approximately 0.8 million net undeveloped acres. In addition, the USA Operations accounted for 61% of production sales during 2016 and 50% of total proved reserves as at December 31, 2016.

During 2016, Encana divested of approximately 51,000 net acres in DJ Basin located in northern Colorado for proceeds of approximately $633 million, after closing adjustments.

The following tables summarize the USA Operations landholdings, producing wells and daily production as at and for the periods indicated.

 

Landholdings   Developed
Acreage
    Undeveloped
Acreage
    Total
Acreage
   

Average 

Working 

Interest 

 
(thousands of acres at December 31, 2016)           Gross                Net               Gross          Net               Gross          Net      

Eagle Ford

    42          41         1          1         43          42         98%   

Permian

    97          91         39          36         136          127         93%   

Other Upstream Operations (1)

    412          334         964          739         1,376          1,073         78%   

Total USA Operations

    551          466         1,004          776         1,555          1,242         80%   
(1)

Other Upstream Operations includes San Juan, Piceance and Tuscaloosa Marine Shale.

Producing Wells

 

    Natural Gas     Oil     Total  
(number of wells at December 31, 2016) (1)           Gross          Net               Gross          Net               Gross          Net     

Eagle Ford

    49          45         392          383         441          428     

Permian

    -          -         1,530          1,434         1,530          1,434     

Other Upstream Operations (2)

    4,265          3,452         167          99         4,432          3,551     

Total USA Operations

    4,314          3,497         2,089          1,916         6,403          5,413     
(1)

Figures exclude wells capable of producing, but not producing.

(2)

Other Upstream Operations includes San Juan, Piceance and Tuscaloosa Marine Shale.

 

                NGLs  
Production   Natural Gas
(MMcf/d)
    Oil
(Mbbls/d)
    Plant Condensate
(Mbbls/d)
    Other
(Mbbls/d)
    Total
(Mbbls/d)
 
(average daily)           2016        2015             2016        2015               2016            2015             2016        2015             2016          2015  

Eagle Ford

    48         44        32.4         37.0        0.6         0.5        6.6         5.3        7.2          5.8  

Permian

    50         44        29.8         24.5        1.1         0.9        8.9         7.4        10.0          8.3  

Other Upstream Operations (1, 2, 3)

    319         576        9.5         19.9        1.0         1.5        5.0         8.0        6.0          9.5  

Total USA Operations

    417         664        71.7         81.4        2.7         2.9        20.5         20.7        23.2          23.6  
(1)

Other Upstream Operations includes San Juan, Piceance and Tuscaloosa Marine Shale.

(2)

During 2016, Encana divested of DJ Basin. Other Upstream Operations includes production from DJ Basin prior to the disposition in 2016, which averaged 32 MMcf/d of natural gas, 3.4 Mbbls/d of oil and 3.0 Mbbls/d of NGLs (2015 – averaged 55 MMcf/d of natural gas and 9.4 Mbbls/d of oil and 5.5 Mbbls/d of NGLs).

(3)

During 2015, Encana divested of Haynesville. Other Upstream Operations includes production from Haynesville prior to the disposition in 2015, which averaged 173 MMcf/d of natural gas.

Eagle Ford

Eagle Ford is a tight oil play located in south Texas in the Karnes, Wilson and Atascosa counties. The focus is on the development of the thickest portion of the Eagle Ford shale in the Karnes Trough, where Encana holds a largely contiguous position. At December 31, 2016, Encana controlled approximately 42,000 net acres in the play. In 2016, Encana drilled approximately 28 net wells in the area and production averaged approximately 32.4 Mbbls/d of oil, approximately 48 MMcf/d of natural gas and approximately 7.2 Mbbls/d of NGLs.

 

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While Encana is focused on developing the lower Eagle Ford exclusively using horizontal drilling, in 2016, Encana also began optimizing upper Eagle Ford targets. In 2016, Encana drilled lateral lengths ranging from approximately 2,000 to 8,800 feet with an average measured total depth of approximately 16,500 feet and optimized other development parameters such as completions designs. The new completions designs utilize thin fluid combined with tighter cluster spacing of less than 25 feet, to create a complex fracture system to increase well productivity. Since acquiring the play in 2014, Encana has reduced drilling costs by approximately 40 percent as a result of the Company’s focus on well design optimization activities. As Encana continues to optimize well and completion designs, lateral lengths drilled, cluster spacing and well spacing may change. During 2016, Encana began delineating the Austin Chalk, drilling two wells in September with lateral lengths averaging approximately 3,400 feet and a third well in late December, with a lateral length of approximately 4,200 feet.

Oil and natural gas production is gathered at various production facilities. The majority of the oil is subsequently transported to sales points by pipeline or trucked from facilities depending on the sales contract. Encana also has access to firm natural gas gathering capacity of up to approximately 35 MMcf/d and processing capacity of up to approximately 70 MMcf/d with third parties under varying terms and duration. Encana also has access to interruptible capacity for the excess production and during 2016, Encana utilized total firm and interruptible capacity of approximately 100 MMcf/d.

Permian

Permian is a tight oil play located in west Texas in the Midland, Martin, Howard, Glasscock and Upton counties. The primary focus is on the development of the Spraberry and Wolfcamp formations, in the Midland basin, where Encana holds a large position. At December 31, 2016, Encana controlled approximately 127,000 net acres in the play. The properties are characterized by an extensive production history from vertical drilling and development and mature infrastructure, with multiple producing horizons spanning approximately 4,000 feet of stratigraphy (also referred to as “stacked pay zones”). In 2016, Encana drilled 78 horizontal net wells and 10 vertical net wells in the area. In 2016, production averaged approximately 29.8 Mbbls/d of oil, approximately 50 MMcf/d of natural gas and approximately 10.0 Mbbls/d of NGLs.

With exposure to 11 potential productive horizons, Encana has focused development using multi-well horizontal pad drilling in order to maximize resource recovery and minimize the development footprint. During 2016, Encana focused on optimizing completion design by using 3D stratigraphic models to land the well bore in the desired drilling zone, minimizing interference between wells and maximizing drainage through well spacing and better fluid and sand utilization. In addition, Encana continued drilling longer horizontal wells with lateral lengths ranging from approximately 5,000 to 10,000 feet at a measured average total depth of approximately 17,300 feet in 2016. As Encana continues to optimize well and completion designs, lateral lengths drilled, stage and well spacing may change. During 2016, Encana’s multi-well horizontal drilling strategy has reduced drilling costs by approximately 15 percent.

Oil and natural gas facilities include field gathering systems, storage batteries, saltwater disposal systems, separation equipment and pumping units. The majority of Encana’s acreage and associated oil production is dedicated to a pipeline gathering agreement signed in 2015, which has an initial term of seven years, with an option to extend the term an additional seven years. In the event of pipeline capacity constraints, Encana’s oil production is trucked by a third party. Natural gas is gathered by Encana and transported to the purchaser’s meter and pipeline interconnection point.

Other Upstream Operations:

San Juan

San Juan is a light sweet oil play located in the San Juan Basin in northwest New Mexico where Encana has a significant land position. Development historically focused on the liquids in Tocito and El Valdo formations

 

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within the play. In 2016, production averaged approximately 3.9 Mbbls/d of oil and NGLs and approximately 9 MMcf/d of natural gas. At December 31, 2016, Encana had approximately 204 gross producing wells (109 net producing wells) and controlled approximately 203,000 net acres in the play, which includes 164,000 net undeveloped acres. In 2016, Encana focused on play optimization reducing production declines and lowering operating costs. Encana has access to natural gas processing capacity of up to approximately 50 MMcf/d under a dedication agreement with a third party.

Piceance

Piceance is a play located in northwest Colorado where Encana historically focused development on natural gas in the Williams Fork, Iles, Mancos and Niobrara formations within the play. Wells targeting the Williams Fork and Iles formations produce from tight gas sands while the Mancos and Niobrara produce from marine shales. In 2016, production averaged approximately 271 MMcf/d of natural gas, approximately 2.8 Mbbls/d of oil and NGLs. At December 31, 2016, Encana had approximately 3,967 gross producing natural gas wells (3,236 net producing natural gas wells) and controlled approximately 693,000 net acres in the play, which includes 447,000 net undeveloped acres.

In 2016, Encana and a subsidiary of Nucor Corporation (“Nucor”) terminated the long-term joint venture agreement related to development of natural gas in the North Piceance Basin. In conjunction with the terminated joint development agreement, Nucor acquired a working interest in certain acreage located in the South Piceance Basin from Encana, and in exchange Encana acquired remaining interests in natural gas gathering and water handling assets located in the North Piceance Basin from an affiliated entity that was jointly owned by Encana and Nucor.

Encana has access to natural gas processing capacity of approximately 715 MMcf/d, of which approximately 650 MMcf/d is under contract with third parties under varying terms and duration and approximately 65 MMcf/d is owned by the Company. Encana also has access to high pressure natural gas gathering capacity of approximately 850 MMcf/d and low pressure natural gas gathering and compression of approximately 500 MMcf/d with third parties under varying terms and duration. Encana owns approximately 500 MMcf/d of low pressure natural gas gathering and compression capacity, of which approximately 420 MMcf/d is primarily tying into a high pressure third party gathering system. Encana also has access to NGLs transportation of approximately 30.0 Mbbls/d with a third party for production from San Juan and Piceance with a remaining term of eight years.

Tuscaloosa Marine Shale

The Tuscaloosa Marine Shale is an emerging oil play located in east Louisiana and west Mississippi. As an emerging play, the potential for future development is primarily dependent on play profitability driven by price and energy fundamentals. Encana has established a significant land position in the core of the play and is focused on maximizing oil recovery in the Tuscaloosa Marine Shale formation. In 2016, Encana focused on play optimization reducing production declines and lowering operating costs. Production averaged approximately 2.4 Mbbls/d of oil. At December 31, 2016, Encana had approximately 48 gross producing oil wells (32 net producing oil wells) and controlled approximately 144,000 net acres, which includes 117,000 net undeveloped acres.

PROVED RESERVES AND OTHER OIL AND GAS INFORMATION

The process of estimating oil, gas and NGL reserves is complex and requires significant judgment. Encana’s estimates of proved reserves and associated future net cash flows were evaluated by the Company’s engineers and are the responsibility of management. As a result, Encana has developed internal policies for estimating and recording reserves. Such policies require proved reserves to be in compliance with the SEC definitions and regulations. Encana’s policies assign responsibilities for compliance in reserves bookings and require that reserve estimates be made by qualified reserves evaluators (“QREs”). QRE is defined as a registered professional licensed to practice engineering, geology, geophysics and has a minimum of five years practical experience, with at least three recent years of experience in the evaluation of reserves.

 

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Encana’s Vice-President, Corporate Reserves and Chief Reservoir Engineering and nine other staff (collectively, the “Corporate Reserves Group”) under this individual’s direction, oversee the internal preparation, review and approval of the reserves estimates. The Corporate Reserves Group reports to the Executive Vice-President, Exploration and Business Development and is separate and independent from the preparation of reserves estimates which are within operations who report to Encana’s Executive Vice-President & Chief Operating Officer. The Corporate Reserves Group maintains internal policies that prescribe procedures and standards to be followed for preparing, estimating and recording reserves in compliance with applicable SEC definitions and guidance. All QREs receive ongoing education on the fundamentals of SEC definitions and reserves reporting through the Company’s reserves manual and internal training programs administered by the Corporate Reserves Group.

The Company’s Director, Corporate Reserves reports to Encana’s Vice-President, Corporate Reserves and Chief Reservoir Engineering and is primarily responsible for overseeing the preparation of proved reserves estimates. The Director, Corporate Reserves has a Bachelor of Science with a degree in Petroleum Engineering from the University of Alberta and is a member of the Calgary Chapter of the Society of Petroleum Evaluation Engineers. In addition, the Corporate Reserves Group comprises a total of seven engineers, four of whom have professional designations, with a combined relevant experience of over 130 years.

Encana’s Reserves Committee of the Board of Directors comprises directors that are independent and familiar with estimating oil and gas reserves and disclosure requirements. The Reserves Committee provides additional oversight to the Company’s reserves process, meeting with management periodically to review the reserves process, the portfolio of properties results and related disclosures. The Reserves Committee is also responsible for reviewing the qualifications and appointment of the independent qualified reserves auditors (“IQRAs”) retained by the Company. Annually, the Reserves Committee recommends the selection of IQRAs to the Board of Directors for its approval and meets with the IQRAs to review their reports.

Encana’s QREs prepare the Company’s reserves estimates. Annually, each play is reviewed in detail by the QREs, the Company’s Corporate Reserves Group, the Company’s executive officers and an internal Reserves Review Committee, as appropriate. In addition, the Corporate Reserves Group conducts a separate review to ensure the effectiveness of the disclosure controls and that the reserves estimates are free from material misstatement. The final reserves estimates are reviewed by Encana’s executive leadership and the Reserves Committee of the Board of Directors, for approval by the Board of Directors.

In 2016, Encana retained IQRAs to audit the Company’s reserves estimates. McDaniel & Associates Consultants Ltd. audited 98 percent of Encana’s estimated Canadian proved reserves volumes and Netherland, Sewell & Associates, Inc. audited 100 percent of Encana’s estimated U.S. proved reserves volumes. An audit of reserves is an examination of a company’s oil and gas reserves and future net cash flow by an independent petroleum consultant that is conducted for the purpose of expressing an opinion as to whether such estimates, in aggregate, are reasonable and have been estimated and presented in conformity with generally accepted petroleum engineering and evaluation methods and procedures. For the 2015 and 2014 periods presented, Encana retained independent qualified reserves evaluators to evaluate and prepare reports on 100 percent of Encana’s natural gas, oil and NGLs reserves volumes.

Proved oil and gas reserves are those quantities of oil, gas and NGLs which, by analysis of geoscience and engineering data, can be estimated with reasonable certainty to be economically producible from known reservoirs under existing economic conditions, operating methods and government regulations. To be considered proved, oil and gas reserves must be economically producible before contracts providing the right to operate expire, unless evidence indicates that renewal is reasonably certain. Also, the project to extract the hydrocarbons must have commenced or the operator must be reasonably certain that it will commence the project within a reasonable time. Undrilled locations can be classified as having undeveloped reserves only if a development plan has been adopted indicating that they are scheduled to be drilled within five years.

The Company’s reserve estimates are conducted from fundamental petrophysical, geological, engineering, financial and accounting data. Reserves are estimated based on production decline analysis, analogy to producing

 

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offsets, detailed reservoir modeling, volumetric calculations or a combination of these methods, in all cases having regard to economic considerations and using technologies that have been demonstrated in the field to yield repeatable and consistent results as defined in the SEC regulations. Data used in assessments include information obtained directly from the subsurface through wellbores such as well logs, reservoir core samples, fluid samples, static and dynamic pressure information, production test data, and surveillance and performance information. In the case of producing reserves, the emphasis is on decline analysis where volumetric analysis is considered to limit forecasts to reasonable levels. Non-producing reserves are estimated by analogy to producing offsets, with consideration of volumetric estimates of in place quantities. All locations to which proved undeveloped reserves have been assigned are subject to a development plan adopted by Encana’s management. The tools used to interpret the data included proprietary and commercially available reservoir modeling and simulation software. Reservoir parameters from analogous reservoirs were used to increase the quality of and confidence in the reserves estimates when available. The method or combination of methods used to estimate the reserves of each reservoir are based on the unique circumstances of each reservoir and the dataset available at the time of the estimate.

In general, estimates of economically recoverable reserves and the future net cash flows therefrom are based upon a number of variable factors and assumptions, such as historical production from the properties, production rates, ultimate reserve recovery, timing and amount of capital expenditures, marketability of crude oil and natural gas, royalty rates, the effects of regulation by governmental agencies, and operating costs, all of which may vary materially from actual results. The actual production, revenues, taxes and development, and operating expenditures with respect to the reserves associated with the Company’s properties may vary, from the information presented herein.

The SEC regulations require that proved reserves be estimated using existing economic conditions (constant pricing). Based on this methodology, Encana’s reserves have been calculated utilizing the 12-month average trailing historical price for each of the years presented prior to the effective date of the report. The 12-month average is calculated as an unweighted average of the first-day-of-the-month price for each month. The reserves estimates provided herein are estimates only and there is no guarantee that the estimated reserves will be recovered.

Encana does not file any estimates of total net proved reserves with any U.S. federal authority or agency other than the SEC and the Department of Energy (“DOE”). Reserve estimates filed with the SEC correspond with the estimates of the Company’s reserves contained in this report. Reserve estimates filed with the DOE are based upon the same underlying technical and economic assumptions as the estimates of Encana’s reserves that are filed with the SEC, however, the DOE requires reports to include the interests of all owners in wells that Encana operates and to exclude all interests in wells that Encana does not operate. Encana is also required to provide reserves data prepared in accordance with Canadian securities regulatory requirements, specifically National Instrument 51-101, Standards of Disclosure for Oil and Gas Activities (“NI 51-101”) which is filed concurrently on SEDAR at www.sedar.com under Encana’s issuer profile. The primary differences between NI 51-101 reporting requirements and SEC requirements include the disclosure of proved and probable reserves estimated using forecast prices and costs, presentation of reserves and production before royalties and granular product type disclosures. The reserves data prepared in accordance in NI 51-101 do not form part of this Annual Report on Form 10-K.

The reserves and other oil and gas information set forth below has an effective date of December 31, 2016 and was prepared as of January 16, 2017. The audit reports prepared by the IQRA’s are attached in Exhibits 99.1 and 99.2 of this Annual Report on Form 10-K.

 

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The following table is a summary of the Company’s proved reserves and estimates of future net cash flows and discounted future net cash flows from proved reserves information relating to proved reserves which can also be found in Note 27 of Encana’s audited Consolidated Financial Statements under Item 8 of this Annual Report on Form 10-K.

Proved Reserves

The table below summarizes the Company’s total proved reserves by natural gas, oil and NGLs and by geographic area as at December 31, 2016 and other summary operating data.

 

    As at December 31, 2016  
      Canada        U.S.        Total     

Proved Reserves: (1)

     

Natural Gas (Bcf):

     

Developed

    903        951        1,853     

Undeveloped

    907        142        1,049     

Total

    1,810        1,093        2,902     

Oil (MMbbls):

     

Developed

    -        82.5        82.5     

Undeveloped

    -        73.1        73.1     

Total

    -        155.6        155.6     

Natural Gas Liquids (MMbbls):

     

Developed

    25.6        31.8        57.4     

Undeveloped

    68.4        24.6        93.0     

Total

    94.0        56.4        150.4     

Total Proved Reserves (MMBOE):

     

Developed

    176.1        272.7        448.8     

Undeveloped

    219.6        121.4        341.0     

Total

    395.6        394.1        789.7     

Percent Proved Developed

    44 %        69 %        57 %     

Percent Proved Undeveloped

    56 %        31 %        43 %     

Production (MBOE/d)

    188.2        164.5        352.7     

Capital Investments (millions)

  $                     256      $                     873      $                     1,129     

Total Net Producing Wells (2)

    6,692        5,484        12,176     

Standardized Measure of Discounted Net Cash Flows: (3)

     

Pre-Tax (millions)

  $ 441      $ 1,247      $ 1,688     

Taxes (millions)

    -        -        -     

After-Tax (millions)

  $ 441      $ 1,247      $ 1,688      
(1)

Numbers may not add due to rounding.

(2)

Total net producing wells includes producing wells and wells mechanically capable of production.

(3)

The Pre-Tax standardized measure of discounted cash flows (“standardized measure”) is a non-GAAP measure. The Company believes the Pre-Tax standardized measure is a useful measure in addition to the After-Tax standardized measure, as it assists in both the estimation of future cash flows of the current reserves as well as in making relative value comparisons among peer companies. The After-Tax standardized measure is dependent on the unique tax situation of each individual company, while the Pre-Tax standardized measure is based on prices and discount factors, which are more consistent between peer companies. See Note 27 of Encana’s audited Consolidated Financial Statements under Item 8 of this Annual Report on Form 10-K for the standardized measure.

 

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Changes to the Company’s proved reserves during 2016 are summarized in the table below:

 

     2016  
      

 

Natural Gas

(Bcf)

  

  

    

 

Oil

(MMbbls)

  

  

    

 

NGLs

(MMbbls)

  

  

    

 

Total  

(MMBOE) 

  

  

Beginning of year

     3,064          164.3          124.5          799.4     

Revisions and improved recovery

     (244)         (15.9)         (8.0)         (64.7)    

Extensions and discoveries

     887          52.2          75.8          275.7     

Purchase of reserves in place

     16          9.6          2.6          14.9     

Sale of reserves in place

     (313)         (27.6)         (26.8)         (106.5)    

Production

     (506)         (27.0)         (17.7)         (129.1)    

End of year

     2,902          155.6          150.4          789.7     

Developed

     1,853          82.5          57.4          448.8     

Undeveloped

     1,049          73.1          93.0          341.0     

Total

     2,902          155.6          150.4          789.7     

* Numbers may not add due to rounding.

In 2016, Encana’s proved natural gas reserves of approximately 2,902 Bcf decreased 162 Bcf from 2015 primarily due to sales of reserves in place of 313 Bcf resulting from the Company’s strategy to focus development on a limited number of core assets. Revisions and improved recovery of natural gas included a reduction of 462 Bcf due to lower 12-month average trailing natural gas prices, partially offset by technical revisions other than price of 218 Bcf. Extensions and discoveries of 887 Bcf were due to successful drilling and delineation of the Montney, Duvernay, Permian and Eagle Ford assets.

In 2016, Encana’s proved oil and NGLs reserves of 306.0 MMbbls increased 17.2 MMbbls from 2015 primarily due to extensions and discoveries of 128.0 MMbbls, offset by sale of reserves of 54.4 MMbbls and negative revisions and improved recovery of 23.9 MMbbls. Revisions and improved recovery of oil and NGLs included reductions of 6.5 MMbbls and 6.6 MMbbls, respectively, due to lower 12-month average trailing oil and NGL prices.

Proved reserves are estimated based on the average beginning-of-month prices during the 12-month period for the respective year. The average prices used to compute proved reserves at December 31, 2016 were WTI: $42.75 per Bbl for oil, Edmonton Light Sweet: C$52.21 per Bbl for oil, Henry Hub: $2.49 per MMBtu for natural gas, and AECO: C$2.17 per MMBtu for natural gas. Prices for natural gas, oil and NGLs can fluctuate widely.

Proved Undeveloped Reserves

Changes to the Company’s proved undeveloped reserves during 2016 are summarized in the table below:

 

(MMBOE )      2016      

Beginning of year

     262.8     

Revisions of prior estimates

     (80.8)    

Extensions and discoveries

     218.6     

Conversions to developed

     (29.7)    

Purchase of reserves in place

     11.3     

Sale of reserves in place

     (41.2)    

End of Year

     341.0     

* Numbers may not add due to rounding.

As of December 31, 2016, there were no material proved undeveloped reserves that had remained undeveloped for five years or more after disclosure as proved undeveloped reserves.

Revisions of prior estimates were revised down by 80.8 MMBOE primarily due to lower 12-month average trailing prices. Extensions and discoveries of 218.6 MMBOE were achieved through the extension of proved acreage, primarily as a result of successful drilling in Montney, Duvernay and Permian.

 

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Conversions of proved undeveloped reserves to proved developed status were 29.7 MMBOE, equating to 11 percent of the total prior year-end proved undeveloped reserves. Approximately 52 percent of proved undeveloped reserves conversions occurred in Canada primarily in Montney and Duvernay and 48 percent occurred in the U.S. primarily in Permian and Eagle Ford. Encana spent $173 million to develop proved undeveloped reserves in 2016, of which approximately 31 percent related to the Canadian properties and 69 percent related to the U.S. properties.

Sales of reserves in place of 41.2 MMBOE relate to the Company’s divestitures of the DJ Basin and Gordondale assets in Montney. Purchases of proved undeveloped reserves of 11.3 MMBOE relate to acquisitions in the Eagle Ford and Permian.

Sales Volumes, Prices and Production Costs

The following table summarizes the Company’s production by final product sold, average sales price, and production cost per BOE for each of the last three years by geographic area:

 

    Production     Average Sales Price (1)          

Average  

Production  

Cost (2)   

 
    

Natural Gas

(Bcf)

   

Oil

(MMbbls)

   

NGLs  

(MMbbls)  

   

Natural Gas

($/Mcf)

   

Oil

($bbls)

   

NGLs  

($bbls)  

           ($/BOE)    

2016

               

Canada

    353        0.7        9.2          1.77        36.32        32.32            10.69     

USA

    153        26.3        8.5          2.29        38.67        14.86                  10.89     

Total

    506        27.0        17.7          1.93        38.61        23.94                  10.78     

2015

               

Canada

    354        2.0        8.3          2.75        43.90        29.21            11.74     

USA

    242        29.8        8.6          2.60        43.31        14.37                  13.96     

Total

    596        31.8        16.9          2.69        43.35        21.66                  12.92     

2014

               

Canada

    503        5.0        8.6          4.89        82.86        53.41            11.42     

USA

    355        13.0        5.0          4.62        81.27        38.92                  12.76     

Total

    858        18.0        13.6          4.78        81.71        48.09                  12.01     
(1)

Excludes the impact of commodity derivatives.

(2)

Excludes ad valorem, severance and property taxes.

The following table summarizes the Company’s revenues by product sold and by geographic area for each of the last three years:

 

($ millions)    Net Production Sales     

Other    

Revenue (1)

     Gains (losses) on
risk management, net
    

Total

Revenue

 
  

Natural

Gas

     Oil      NGLs           

2016

                                                     

Canada

       $       628       $           26       $           298         $           166       $           (151)       $           967    

USA

     350         1,015         126           584         (124)         1,951    

Total

       $ 978       $ 1,041       $ 424         $ 750       $ (275)       $ 2,918    

2015

                 

Canada

       $ 976       $ 90       $ 243         $ 222       $ 166        $ 1,697    

USA

     629         1,288         124           258         426          2,725    

Total

       $ 1,605       $ 1,378       $ 367         $ 480       $ 592        $ 4,422    

2014

                 

Canada

       $ 2,468       $ 412       $ 460         $ 552       $ 167        $ 4,059    

USA

     1,640         1,063         195           857         205          3,960    

Total

       $ 4,108       $ 1,475       $ 655         $ 1,409       $ 372        $ 8,019    
(1)

Includes market optimization and other revenues such as purchased product sold to third parties, sublease revenues, interest income and gathering and processing services provided to third parties.

 

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Drilling and other exploratory and development activities (1, 2)

The following tables summarize Encana’s gross participation and net interest in wells drilled for the periods indicated by geographic area.

 

     Exploration     Development     Total  
       Productive        Dry       Productive        Dry       Productive        Dry  
       Gross        Net          Gross        Net           Gross        Net          Gross        Net           Gross        Net         Gross        Net     

   2016

                                 

  Canada

     1        -        1        -         100        44        3        -         101        44        4        -    

  USA

     3        3        -        -         124        113        -        -         127        116        -        -    

  Total

     4        3        1        -         224        157        3        -         228        160        4        -    

   2015

                                 

  Canada

     -        -        1        -         173        135        -        -         173        135        1        -    

  USA

     -        -        -        -         402        265        2        -         402        265        2        -    

  Total

     -        -        1        -         575        400        2        -         575        400        3        -    

   2014

                                 

  Canada

     5        2        -        -         358        277        -        -         363        279        -        -    

  USA

     6        2        -        -         394        202        1        -         401        204        1        -    

  Total

     11        4        -        -         752        479        1        -         764        483        1        -    
  (1)

“Gross” wells are the total number of wells in which Encana has an interest.

  (2)

“Net” wells are the number of wells obtained by aggregating Encana’s working interest in each of its gross wells.

Drilling and other exploratory and development activities (1, 2)

The following table summarizes the number of wells in the process of drilling or in active completion stages and the number of wells suspended or waiting on completion by geographic area at December 31, 2016.

 

     Wells in the Process of Drilling or
in Active Completion
    Wells Suspended or Waiting on
Completion (3)  
 
     Exploration     Development     Exploration     Development  
         Gross        Net          Gross        Net           Gross        Net          Gross        Net      

   2016

                    

  Canada

     -        -         20        12         -        -         21        13      

  USA

     -        -         27        27         -        -         8        8      

  Total

     -        -         47        39         -        -         29        21      
(1)

“Gross” wells are the total number of wells in which Encana has an interest.

(2)

“Net” wells are the number of wells obtained by aggregating Encana’s working interest in each of its gross wells.

(3)

Wells suspended or waiting on completion include exploration and development wells where drilling has occurred, but the wells are awaiting the completion of hydraulic fracturing or other completion activities or the resumption of drilling in the future.

Oil and gas properties, wells, operations, and acreage

The following table summarizes the number of producing wells and wells mechanically capable of production by geographic area at December 31, 2016.

 

  Producing Wells (1, 2)    Natural Gas (3)     Oil (4)     Total  
       Gross        Net          Gross        Net          Gross        Net       

   2016

               

  Canada

     7,097        6,635         92        57         7,189        6,692      

  USA

     4,374        3,549         2,108        1,935         6,482        5,484      

  Total

     11,471        10,184         2,200        1,992         13,671        12,176      
  (1)

“Gross” wells are the total number of wells in which Encana has an interest.

 

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  (2)

“Net” wells are the number of wells obtained by aggregating Encana’s working interest in each of its gross wells.

  (3)

Includes 10,273 gross natural gas wells (9,782 net natural gas wells) containing multiple completions.

  (4)

Includes 69 gross oil wells (14 net oil wells) containing multiple completions.

The following table summarizes Encana’s developed, undeveloped and total landholdings by geographic area as at December 31, 2016.

 

Landholdings (1 - 6)         Developed      Undeveloped      Total  
(thousands of acres)           Gross          Net            Gross          Net            Gross          Net        

Canada

                    

Onshore

   — Crown      938         581           1,622         1,019           2,560         1,600      
   — Freehold      568         519           226         197           794         716      
   — Fee      1         1           3         3           4         4      

Offshore

   — Crown      20         20           56         12           76         32      

Total Canada

          1,527         1,121           1,907         1,231           3,434         2,352      

United States

                    
   — Federal/State      289         242           697         523           986         765      
   — Freehold      252         214           271         217           523         431      
     — Fee      10         10           36         36           46         46      

Total United States

          551         466           1,004         776           1,555         1,242      

International

                    

Australia

          -         -           104         40           104         40      

Total International

          -         -           104         40           104         40      

Total

          2,078         1,587           3,015         2,047           5,093         3,634      
(1)

Fee lands are those lands in which Encana has a fee simple interest in the mineral rights and has either: (i) not leased out all of the mineral zones; (ii) retained a working interest; or (iii) one or more substances or products that have not been leased. The current fee lands acreage summary includes all fee titles owned by Encana that have one or more zones that remain unleased or available for development.

(2)

Crown/Federal/State lands are those owned by the federal, provincial or state government or the First Nations, in which Encana has purchased a working interest lease.

(3)

Freehold lands are owned by individuals (other than a government or Encana), in which Encana holds a working interest lease.

(4)

Gross acres are the total area of properties in which Encana has an interest.

(5)

Net acres are the sum of Encana’s fractional interest in gross acres.

(6)

Undeveloped acreage refers to those acres on which wells have not been drilled or completed to a point that would permit the production of economic quantities of oil or gas regardless of whether such acreage contains proved reserves.

Of the total 3.6 million net acres, approximately 1.6 million net acres is held by production. The table above includes the acreage subject to leases that will expire over the next three years: 2017 – approximately 196,000 net acres; 2018 – approximately 100,000 net acres; and 2019 – approximately 230,000 net acres, if the Company does not establish production or take any other action to extend the terms. For acreage that the Company intends to further develop, Encana will perform operational and administrative actions to continue the lease terms that are set to expire. As a result, it is not expected that a significant portion of the Company’s net acreage will expire before such actions occur.

Title to Properties

As is customary in the oil and natural gas industry, a preliminary review of title records, which may include opinions or reports of appropriate professionals or counsel, is made at the time Encana acquires properties. The Company believes that title to all of the various interests set forth in the above table is satisfactory and consistent with the standards generally accepted in the oil and gas industry, subject only to immaterial exceptions that do not detract substantially from the value of the interests or materially interfere with their use in Encana’s operations. The interests owned by Encana may be subject to one or more royalty, overriding royalty, or other outstanding interests (including disputes related to such interests) customary in the industry. The interests may additionally be subject to obligations or duties under applicable laws, ordinances, rules, regulations, and orders of arbitral or governmental authorities. In addition, the interests may be subject to burdens such as production

 

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payments, net profits interests, liens incident to operating agreements and current taxes, development obligations under oil and gas leases, and other encumbrances, easements, and restrictions, none of which detract substantially from the value of the interests or materially interfere with their use in the Company’s operations.

MARKETING ACTIVITIES

Market Optimization activities are managed by Encana’s Midstream, Marketing & Fundamentals team, which is responsible for the sale of the Company’s proprietary production and enhancing the associated netback price. In marketing production, Encana looks to minimize market related shut-ins, maximize realized prices and manage concentration of credit-risk exposure. Market Optimization activities include third party purchases and sales of product to provide operational flexibility and cost mitigation for transportation commitments, product type, delivery points and customer diversification. In conjunction with certain divestitures, Encana has also agreed to market and transport certain portions of the acquirer’s production with remaining terms of less than five years.

Encana’s produced natural gas, oil and NGLs are primarily marketed to refiners, local distributing companies, energy marketing companies and electronic exchanges. Prices received by Encana are based primarily upon prevailing market index prices in the region in which it is sold. Prices are impacted by regional and global supply and demand and by competing fuels in such markets.

The majority of Encana’s natural gas production is sold under short-term delivery contracts less than 12 months in duration, at the relevant monthly or daily market price at the time the product is sold. Encana has dedicated natural gas produced from Deep Panuke under a long-term physical sales contract at prevailing market prices in that region. Encana’s oil production is sold under short term and long term contracts that range up to four years. Prices received by Encana are based primarily upon the prevailing index prices in the relevant region where the product is sold. Encana’s NGLs production is sold under short term and long term contracts that range up to 12 years, or under dedication arrangements at the relevant market price at the time the product is sold.

Encana also seeks to mitigate the market risk associated with future cash flows by entering into various financial risk management contracts relating to produced natural gas, oil and NGLs. Details of contracts related to Encana’s various financial risk management positions are found in Note 24 of Encana’s audited Consolidated Financial Statements under Item 8 of this Annual Report on Form 10-K.

The Company enters into various contractual agreements to sell natural gas, oil and NGLs, some of which require the delivery of fixed and determinable quantities. As of December 31, 2016, Encana was committed to deliver 64,000 MMcf of natural gas and 179 Mbbls of oil and NGLs in the Canadian Operations and 29,000 MMcf of natural gas in the USA Operations with terms under one year. The Company had no commitments to deliver fixed quantities of production with terms exceeding one year.

Certain delivery commitments result in the following financial commitments associated with transportation and processing:

 

($ millions)      1 Year        2-3 Years        4-5 Years        > 5 years        Total    

Transportation & Processing

              

Canadian Operations

              

Natural Gas

     270        548        456        1,781        3,055    

Oil & NGLs

     22        100        110        246        478    

Total Canadian Operations

     292        648        566        2,027        3,533    

USA Operations

              

Natural Gas

     185        448        453        484        1,570    

Oil & NGLs

     31        47        37        55        170    

Total USA Operations

     216        495        490        539        1,740    

Total Canadian and USA Operations

     508        1,143        1,056        2,566        5,273    

 

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In general, Encana expects to fulfill delivery commitments with production from proved developed reserves, with longer term delivery commitments to be filled from the Company’s proved undeveloped reserves. Where proved reserves are not sufficient to satisfy the Company’s delivery commitments, Encana can and may use spot market purchases to satisfy the respective commitments. In addition, for the Company’s long-term transportation and processing agreements, Encana also expects to fulfill delivery commitments from the future development of resources not yet characterized as proved reserves. Likewise, where delivery commitments are not transferred along with property divestitures, Encana may market and transport certain portions of the acquirer’s production to meet the delivery requirements.

In addition, production from the Company’s reserves are not subject to any priorities or curtailments that may affect quantities delivered to its customers or any priority allocations or price limitations imposed by federal or state regulatory agencies, or any other factors beyond the Company’s control that may affect Encana’s ability to meet contractual obligations other than those discussed in Item 1A. Risk Factors of this Annual Report on Form 10-K.

MAJOR CUSTOMERS

In connection with the marketing and sale of Encana’s production and purchased natural gas and liquids for the year ended December 31, 2016, the Company had two customers, Royal Dutch Shell Group and Flint Hills Resources, which individually accounted for more than 10 percent of Encana’s consolidated revenues (2015–two customers, Royal Dutch Shell Group and Flint Hills Resources, 2014 one customer, BP Energy Company). Encana does not believe that the loss of any single customer would have a material adverse effect on the Company’s financial condition or results of operations. Further information on Encana’s major customers are found in Note 2 of Encana’s audited Consolidated Financial Statements under Item 8 of this Annual Report on Form 10-K.

COMPETITION

The Company’s competitors include national, integrated and independent oil and gas companies, as well as oil and gas marketers and other participants in other industries supplying energy and fuel to industrial, commercial and individual consumers. All aspects of the oil and gas industry are highly competitive and Encana actively competes with other companies in the industry, particularly in the following areas:

 

   

Exploration for and development of new sources of natural gas, oil and NGLs reserves;

   

Reserves and property acquisitions;

   

Transportation and marketing of natural gas, oil, NGLs and diluents;

   

Access to services and equipment to carry out exploration, development and operating activities; and

   

Attracting and retaining experienced industry personnel.

The oil and gas industry also competes with other industries focused on providing alternative forms of energy to consumers. Competitive forces can lead to cost increases or result in an oversupply of natural gas, oil or NGLs.

EMPLOYEES

At December 31, 2016, Encana employed 2,200 employees as set forth in the following table.

 

       Employees      

Canada

     1,129          

U.S.

     1,071          

Total

     2,200          

The Company also engages a number of contractors and service providers.

 

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ENVIRONMENTAL AND REGULATORY MATTERS

As Encana is an owner or lessee and operator of oil and gas properties and facilities in Canada and the United States, the Company is subject to numerous federal, provincial, state, local, tribal and foreign country laws and regulations relating to pollution, protection of the environment and the handling of hazardous materials. These laws and regulations generally require Encana to remove or remedy the effect of its activities on the environment at present and former operating sites, including dismantling production facilities, remediating damage caused by the use or release of specified substances, and require suspension or cessation of operations in affected areas. The following are significant areas of government control and regulation affecting Encana’s operations:

Exploration and Development Activities:

Our operations are subject to federal, tribal, state, provincial and local laws and regulations. These laws and regulations relate to matters that include: acquisition of seismic data; location, drilling and casing of wells; well design; hydraulic fracturing; well production; use, transportation, storage and disposal of fluids and materials incidental to oil and gas operations; surface usage and the restoration of properties upon which wells have been drilled and facilities have been constructed; plugging and abandoning of wells; transportation of production; and calculation and disbursement of royalty payments and production and other taxes.

The Company’s operations also are subject to conservation regulations, including the regulation of the size of drilling and spacing units or proration units; the number of wells that may be drilled in a unit; the rate of production allowable from oil and gas wells; and the unitization or pooling of oil and gas properties. In addition, conservation laws generally limit the venting or flaring of natural gas and impose certain requirements regarding the ratable purchase of production. These regulations limit the amounts of oil and gas that can produce from the Company’s wells and the number of wells or the locations that can be drilled.

Environmental and Occupational Regulations:

The Company is subject to many federal, state, provincial, local and tribal laws and regulations concerning occupational health and safety as well as the discharge of materials into, and the protection of, the environment. Environmental laws and regulations relate to:

 

   

the discharge of pollutants into federal, provincial and state waters;

   

assessing the environmental impact of seismic acquisition, drilling or construction activities;

   

the generation, storage, transportation and disposal of waste materials, including hazardous substances;

   

the emission of certain gases into the atmosphere;

   

the sourcing and disposal of water;

   

the protection of endangered species and habitat;

   

the monitoring, abandonment, reclamation and remediation of well and other sites, including sites of former operations;

   

the development of emergency response and spill contingency plans; and

   

employee health and safety.

Failure to comply with these laws and regulations may result in the assessment of sanctions, including administrative, civil, and criminal penalties; the imposition of investigatory, remedial, and corrective action obligations or the incurrence of capital expenditures; the occurrence of delays in the permitting, development or expansion of projects; and the issuance of injunctions restricting or prohibiting some or all of the Company’s activities in a particular area. Although environmental requirements have a substantial impact upon the energy industry as a whole, Encana does not believe that these requirements affect us differently, to any material degree, as compared to other companies in the oil and natural gas industry. For further information regarding regulations relating to environmental protection, see Item 1A. Risk Factors of this Annual Report on Form 10-K.

 

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Operating and capital costs incurred to comply with the requirements of these laws and regulations are necessary business costs in the oil and gas industry. As a result, Encana has established policies for continuing compliance with environmental laws and regulations. The Corporate Responsibility, Environment, Health and Safety Committee of the Board of Directors reviews and recommends environmental policy to the Board of Directors for approval and oversees compliance with government laws and regulations. Monitoring and reporting programs for environmental, health and safety performance in day-to-day operations, as well as inspections and assessments, are designed to provide assurance that environmental and regulatory standards are met. The Company has established operating procedures and training programs designed to limit the environmental impact of the Company’s field facilities and identify, communicate and comply with changes in existing laws and regulations. Contingency plans are in place for a timely response to an environmental event and remediation/reclamation programs are in place and utilized to restore the environment. In addition, the Board of Directors is advised of significant contraventions thereof, and receives updates on trends, issues or events which could have a significant impact on the Company.

The Company believes that it is in material compliance with existing environmental and occupational health and safety regulations. Further, the Company believes that the cost of maintaining compliance with these existing laws and regulations will not have a material adverse effect on its business, financial condition or results of operations. In addition, Encana maintains insurance coverage for insurable risks against certain environmental and occupational health and safety risks that is consistent with insurance coverage held by other similarly situated industry participants, but the Company is not fully insured against all such risks. However, it is possible that developments, such as new or more stringently applied existing laws and regulations as well as claims for damages to property or persons resulting from the Company’s operations, could result in substantial costs and liabilities to the Company. As a result, Encana is unable to predict with any reasonable degree of certainty future exposures concerning such matters.

EXECUTIVE OFFICERS OF THE REGISTRANT

Encana’s Executive Officers are set out in the table below:

 

  Name      Age  (1)       


Years Served

as Executive
Officer

 

 
 

   Corporate Office

  Douglas J. Suttles

     56        4      President & Chief Executive Officer

  Joanne L. Alexander

     50        2      Executive Vice-President, General Counsel & Corporate Secretary

  Sherri A. Brillon

     57        10      Executive Vice-President & Chief Financial Officer

  David G. Hill

     55        3      Executive Vice-President, Exploration & Business Development

  Michael G. McAllister

     58        6      Executive Vice-President & Chief Operating Officer

  Michael Williams

     57        3      Executive Vice-President, Corporate Services

  Renee E. Zemljak

     52        7      Executive Vice-President, Midstream, Marketing & Fundamentals
  (1)

  As of February 27, 2017

Mr. Suttles was appointed President & Chief Executive Officer in June 2013. Prior to that, Mr. Suttles was an independent businessman performing consulting services in the oil and gas industry and serving on the boards of Ceres, Inc. (a public energy crop company) and NEOS GeoSolutions (a privately held geosciences company) from March 2011 until June 2013. Mr. Suttles was also Chief Operating Officer at BP Exploration & Production from January 2009 until March 2011.

Ms. Alexander was appointed Executive Vice-President, General Counsel & Corporate Secretary in January 2015. Prior to that, Ms. Alexander was Senior Vice President, General Counsel and Corporate Secretary of Precision Drilling Corporation (a public oil and gas services company) from April 2008 to December 2014 and General Counsel of Marathon Oil Canada Corporation (an oil and gas company) from 2007 to 2008.

Ms. Brillon was appointed Executive Vice-President & Chief Financial Officer in November 2009. Ms. Brillon joined one of Encana’s predecessor companies in 1985 and assumed a variety of leadership roles, including her

 

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previous position as Executive Vice-President, Strategic Planning and Portfolio Management in January 2007. Ms. Brillon served as a director of the Canadian Chamber of Commerce (a not-for-profit company) from 2007 to 2009, as a director of PrairieSky Royalty Ltd. (a public oil and gas royalty company) from April 2014 to September 2014 and as a director of Tim Horton’s Inc. (a public restaurant company) from November 2013 to December 2014.

Mr. Hill was appointed Executive Vice-President, Exploration & Business Development in November 2013. Mr. Hill joined Encana in November 2002 and assumed a variety of leadership roles, including his previous position as Vice-President, Natural Gas Economy Operations. Prior to these positions, Mr. Hill was President of TICORA Geosciences (a privately held geosciences company) from 2000 to 2002.

Mr. McAllister was appointed Executive Vice-President & Chief Operating Officer in November 2013. Mr. McAllister joined one of Encana’s predecessor companies in June 2000 and assumed a variety of leadership roles, including his previous position as Executive Vice-President & Senior Vice-President, Canadian Division in February 2011. Before joining Encana, Mr. McAllister worked in various technical and leadership roles for Texaco Canada and Imperial Oil Resources (both are oil and gas companies).

Mr. Williams was appointed Executive Vice-President, Corporate Services in March 2014. Prior to that, Mr. Williams was Executive Vice-President of Corporate Services with Tervita Corporation (a private energy services company) from 2011 to 2014 and Chief Administration Officer for TransAlta Corporation (a public power company) from 2002 to 2011.

Ms. Zemljak was appointed Executive Vice-President, Midstream, Marketing & Fundamentals in November 2009. Ms. Zemljak joined one of Encana’s predecessor companies in November 2000 and assumed a variety of leadership roles, including her previous position as Vice-President of USA Marketing in May 2002. Prior to joining Encana, Ms. Zemljak worked in various roles for Montana Power (formerly a public power company).

 

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ITEM 1A.

Risk Factors

If any event arising from the risk factors set forth below occurs, Encana’s business, prospects, financial condition, results of operations, cash flows or the trading prices of securities and in some cases its reputation could be materially adversely affected. When assessing the materiality of the foregoing risk factors, Encana takes into account a number of qualitative and quantitative factors, including, but not limited to, financial, operational, environmental, regulatory, reputational and safety aspects of the identified risk factor.

A substantial or extended decline in natural gas, oil or NGLs prices and price differentials could have a material adverse effect on Encana’s financial condition.

Encana’s financial performance and condition are substantially dependent on the prevailing prices of natural gas, oil and NGLs. Low natural gas, oil or NGLs prices and significant U.S. and Canadian price differentials will have an adverse effect on the Company’s operations and financial condition and the value and amount of its reserves. Prices for natural gas, oil or NGLs fluctuate in response to changes in the supply and demand for natural gas, oil or NGLs, market uncertainty and a variety of additional factors beyond the Company’s control.

Natural gas prices realized by Encana are affected primarily by North American supply and demand, weather conditions, transportation and infrastructure constraints and by prices of alternate sources of energy (including refined product, coal, and renewable energy initiatives). Oil prices are largely determined by international and domestic supply and demand. Factors which affect oil prices include the actions of the OPEC, world economic conditions, government regulation, political stability in the Middle East and elsewhere, the foreign and domestic supply of oil, the price of foreign imports, the availability of alternate fuel sources, transportation and infrastructure constraints and weather conditions. Historically, NGLs prices have generally been correlated with oil prices, and are determined based on supply and demand in international and domestic NGLs markets.

A substantial or extended decline in the price of natural gas, oil or NGLs could result in a delay or cancellation of existing or future drilling, development or construction programs or curtailment or shut-in of production at some properties or could result in unutilized long-term transportation and drilling commitments, all of which could have an adverse effect on the Company’s revenues, profitability and cash flows.

Natural gas and oil producers in North America, and particularly in Canada, currently receive discounted prices for their production relative to certain international prices due to constraints on their ability to transport and sell such production to international markets. A failure to resolve such constraints may result in continued discounted or reduced commodity prices realized by natural gas and oil producers, including Encana.

On at least an annual basis, Encana conducts an assessment of the carrying value of its assets in accordance with the applicable accounting standards. If natural gas, oil or NGLs prices decline further, the carrying value of Encana’s assets could be subject to financial downward revisions, and the Company’s net earnings could be adversely affected.

Encana’s ability to operate and complete projects is dependent on factors outside of its control which may have a material adverse effect on its business, financial condition or results of operations.

The Company’s ability to operate, generate sufficient cash flows, and complete projects depends upon numerous factors beyond the Company’s control. In addition to commodity prices and continued market demand for its products, these non-controllable factors include general business and market conditions, economic recessions and financial market turmoil, the overall state of the capital markets, including investor appetite for investments in the oil and gas industry generally and the Company’s securities in particular, the ability to secure and maintain cost effective financing for its commitments, legislative, environmental and regulatory matters, reliance on industry partners and service providers, unexpected cost increases, royalties, taxes, volatility in natural gas, oil or NGLs prices, the availability of drilling and other equipment, the ability to access lands, the ability to access water for hydraulic fracturing operations, weather, the availability and proximity of processing and pipeline

 

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capacity, transportation interruptions and constraints, technology failures, accidents, the availability of skilled labour, and reservoir quality. In addition, some of these risks may be magnified due to the concentrated nature of funding certain assets within the Company’s portfolio of oil and natural gas properties that are operated within limited geographic areas. As a result, a number of the Company’s assets could experience any of the same risks and conditions at the same time, resulting in a relatively greater impact on the Company’s financial condition and results of operations compared to other companies that may have a more geographically diversified portfolio of properties.

Declines in natural gas, oil or NGLs prices create fiscal challenges for the oil and gas industry. These conditions have impacted companies in the oil and gas industry and the Company’s spending and operating plans and may continue to do so in the future. There may be unexpected business impacts from market uncertainty, including volatile changes in currency exchange rates, inflation, interest rates, defaults of suppliers and general levels of investing and consuming activity, as well as a potential impact on the Company’s credit ratings, which could affect its liquidity and ability to obtain financing.

The Company undertakes a variety of projects including exploration and development projects and the construction or expansion of facilities and pipelines. Project delays may delay expected revenues and project cost overruns could make projects uneconomic.

All of Encana’s operations are subject to regulation and intervention by governments that can affect or prohibit the drilling, completion and tie-in of wells, production, the construction or expansion of facilities and the operation and abandonment of fields. Contract rights can be cancelled or expropriated. Changes to government regulation could impact the Company’s existing and planned projects.

Encana’s proved reserves are estimates and any material inaccuracies in our reserves estimates or assumptions underlying our reserves estimates could cause quantities and net present value of our reserves to be overstated or understated.

There are numerous uncertainties inherent in estimating quantities of natural gas, oil and NGLs reserves, including many factors beyond the Company’s control. The reserves data in this Annual Report on Form 10-K and other published reserves and resources data represents estimates only. In general, estimates of economically recoverable natural gas, oil and NGLs reserves and the future net cash flows therefrom are based upon a number of variable factors and assumptions, such as commodity prices, future operating and capital costs, availability of future capital, historical production from the properties and the assumed effects of regulation by governmental agencies, including with respect to royalty payments, all of which may vary considerably from actual results. All such estimates are to some degree uncertain, and classifications of reserves and resources are only attempts to define the degree of uncertainty involved.

For those reasons, estimates of the economically recoverable natural gas, oil and NGLs reserves attributable to any particular group of properties, classification of such reserves based on risk of recovery and estimates of future net revenues expected therefrom, prepared by different engineers or by the same engineers at different times, may vary substantially. Encana’s actual production, revenues, taxes and development and operating expenditures with respect to its reserves may vary from such estimates, and such variances could be material. Estimates with respect to reserves that may be developed and produced in the future are often based upon volumetric calculations and upon analogy to similar types of reserves, rather than upon actual production history. Estimates based on these methods generally are less reliable than those based on actual production history. Subsequent evaluation of the same reserves based upon production history will result in variations, which may be material, in the estimated reserves.

The estimates of reserves included in this Annual Report on Form 10-K are prepared in accordance with SEC regulations and require, subject to limited exceptions, that proved undeveloped reserves may only be classified as proved reserves if the related wells are scheduled to be drilled within five years after the date of booking. Reserves to be developed and produced in the future are based upon certain expectations and assumptions,

 

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including the allocation of capital, which may be subject to change. Proved undeveloped reserves may be reclassified to unproved due to delays in the development of reserves, or projects becoming uneconomical due to increases in costs to drill such reserves, or lower future net revenues from further decreases in commodity prices.

Commodity prices used to estimate reserves included in this Annual Report on Form 10-K are calculated as the average oil and natural gas price during the 12 months ending in the current reporting period, determined as the unweighted arithmetic average of prices on the first day of each month within the 12-month period. Significant future price changes can have a material effect on the quantity and value of the Company’s proved reserves. The standardized measure of discounted future net cash flows included in this Annual Report on Form 10-K will not represent the current market value of Encana’s estimated reserves. In addition, these reserve estimates do not include any value for probable or possible reserves that may exist, nor do they include any value for unproved undeveloped acreage.

If Encana fails to acquire or find additional reserves, the Company’s reserves and production will decline materially from their current levels.

Encana’s future natural gas, oil and NGLs reserves and production, and therefore its cash flows, are highly dependent upon its success in developing its current reserves base and acquiring, discovering or developing additional reserves. Without reserves additions through exploration, acquisition or development activities, the Company’s reserves and production will decline over time as reserves are depleted.

The business of exploring for, developing or acquiring reserves is capital intensive. In addition, part of Encana’s strategy is focused on a limited number of core assets which results in a concentration of capital and increased potential risks. To the extent that cash flows from the Company’s operations are insufficient and external sources of capital become limited, Encana’s ability to make the necessary capital investments to maintain and expand its natural gas, oil and NGLs reserves and production will be impaired. In addition, there can be no certainty that Encana will be able to find and develop or acquire additional reserves to replace production at acceptable costs.

In addition, Encana’s operations utilize horizontal multi-pad drilling, tighter drill spacing and completions techniques that evolve over time as learnings are captured and applied. The use of this technology may increase the risk of unintentional communication with other wells and the potential for acceleration of current reserves or an increase in recovery factor from the reservoir. If drilling and completions results are less than anticipated, the production volumes may be lower than anticipated.

The Company’s business is subject to environmental regulation in all jurisdictions in which it operates and any changes in such regulation could negatively affect its results of operations.

All phases of the natural gas, oil and NGLs businesses are subject to environmental regulation pursuant to a variety of Canadian, U.S. and other federal, provincial, territorial, tribal, state and municipal laws and regulations (collectively, “environmental regulation”).

Environmental regulation imposes, among other things, restrictions, liabilities and obligations in connection with the use, generation, handling, storage, transportation, treatment and disposal of chemicals, hazardous substances and waste associated with the finding, production, transmission and storage of the Company’s products including the hydraulic fracturing of wells, the decommissioning of facilities and in connection with spills, releases and emissions of various substances to the environment. It also imposes restrictions, liabilities and obligations in connection with the availability and management of fresh, potable or brackish water sources that are being used, or whose use is contemplated, in connection with natural gas and oil operations.

Environmental regulation also requires that wells, facility sites and other properties associated with Encana’s operations be operated, maintained, abandoned and reclaimed to the satisfaction of applicable regulatory authorities. In addition, certain types of operations, including exploration and development projects and changes to certain existing projects, may require the submission and approval of environmental impact assessments or

 

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permit applications. Compliance with environmental regulation can require significant expenditures, including expenditures for clean-up costs and damages arising out of contaminated properties and failure to comply with environmental regulation may result in the imposition of fines and penalties.

Although it is not expected that the costs of complying with environmental regulation will have a material adverse effect on Encana’s financial condition or results of operations, no assurance can be made that the costs of complying with environmental regulation in the future will not have such an effect as discussed below.

Climate Change - A number of federal, provincial and state governments have announced intentions to regulate greenhouse gases and certain air pollutants. These governments are currently developing regulatory and policy frameworks to deliver on their announcements. The U.S. Environmental Protection Agency (“EPA”) has outlined a series of steps to address methane and volatile organic compound emissions from the oil and gas industry, including a new goal to reduce oil and gas methane emissions by 40 percent to 45 percent from 2012 levels by 2025. The reductions will be achieved through regulatory and voluntary measures currently under development. In addition, the Canadian federal government along with certain provinces and territories, including Alberta and British Columbia, have announced a pan-Canadian climate change framework that is consistent with the outcome reached at the 21 st Conference of the Parties in Paris and which includes imposing an economy wide cost on carbon emissions in Canada by 2023. The Alberta government outlined its Climate Leadership Plan which includes four key areas, one of which is targeting a 45 percent reduction in methane gas emissions from oil and gas operations by 2025, to be achieved through equipment replacement and leak detection and repair regulations. Both Alberta and British Columbia have implemented a provincial carbon tax; Alberta introduced a carbon levy of C$20 per tonne in January 2017, increasing to C$30 in 2018, while British Columbia has an established carbon levy of C$30 per tonne. Encana’s cost of complying with emerging climate and cost of carbon regulations is not currently forecast to be material to the Company, however as these and additional federal and regional programs are in their early implementation stage or under development, Encana is unable to predict the total future impact of the potential regulations upon its business. Therefore, it is possible that the Company could face future increases in operating costs in order to comply with legislation governing emissions.

Hydraulic Fracturing - The U.S. and Canadian federal governments and certain U.S. state and Canadian provincial governments continue to review certain aspects of the scientific, regulatory and policy framework under which hydraulic fracturing operations are conducted. Most of these governments are primarily engaged in the collection, review and assessment of technical information regarding the hydraulic fracturing process and have not provided specific details with respect to any significant actual, proposed or contemplated changes to the hydraulic fracturing regulatory construct. However, certain environmental and other groups continue to suggest that additional federal, provincial, territorial, state and municipal laws and regulations may be needed to more closely regulate the hydraulic fracturing process, and have made claims that hydraulic fracturing techniques are harmful to surface water and drinking water sources.

Further, certain governments in jurisdictions where the Company does not currently operate have considered or implemented moratoriums on hydraulic fracturing until further studies can be completed and some governments have adopted, and others have considered adopting, regulations that could impose more stringent permitting, disclosure and well construction requirements on hydraulic fracturing operations. Any new laws, regulations or permitting requirements regarding hydraulic fracturing could lead to operational delays, increased operating costs or third party or governmental claims, and could increase the Company’s cost of compliance and doing business as well as reduce the amount of natural gas and oil that the Company is ultimately able to produce from its reserves. The Company recognizes that additional hydraulic fracturing ballot initiatives and/or local rule-making limiting or restricting oil and gas development activities are a possibility in the future.

As these federal and regional programs are in their early implementation stage or under development, Encana is unable to predict the total impact of the potential regulations upon its business. Therefore, it is possible that the Company could face increases in operating costs or curtailment of production in order to comply with legislation governing hydraulic fracturing.

 

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Seismic Activity - Some areas of North America are experiencing increasing localized frequency of seismic activity which has been associated with oil and gas operations. Although the occurrence of seismicity in relation to oil and gas operations is generally very low, it has been linked to deep disposal of wastewater in the United States and has been correlated with hydraulic fracturing in Western Canada which has prompted legislative and regulatory initiatives intended to address these concerns. These initiatives have the potential to require additional monitoring, restrict the injection of produced water in certain disposal wells and/or modify or curtail hydraulic fracturing operations which could lead to operational delays, increase compliance costs or otherwise adversely impact the Company’s operations.

The Company’s level of indebtedness may limit its financial flexibility.

As at December 31, 2016, the Company had total long-term debt of $4,198 million and no outstanding balance under its revolving credit facilities. The terms of the Company’s various financing arrangements, including but not limited to the indentures relating to its outstanding senior notes and its revolving credit facilities, impose restrictions on its ability and, in some cases, the ability of the Company’s subsidiaries, to take a number of actions that it or they may otherwise desire to take, including: (i) incurring additional debt, including guarantees of indebtedness; (ii) creating liens on the Company’s or its subsidiaries’ assets; and (iii) selling certain of the Company’s or its subsidiaries’ assets.

The Company’s level of indebtedness could affect its operations by:

 

   

requiring it to dedicate a portion of cash flows from operations to service its indebtedness, thereby reducing the availability of cash flow for other purposes;

   

reducing its competitiveness compared to similar companies that have less debt;

   

limiting its ability to obtain additional future financing for working capital, capital investments and acquisitions;

   

limiting its flexibility in planning for, or reacting to, changes in its business and industry; and

   

increasing its vulnerability to general adverse economic and industry conditions.

The Company’s ability to meet its debt obligations and service those debt obligations depends on future performance. General economic conditions, natural gas, oil or NGLs prices, and financial, business and other factors affect the Company’s operations and future performance. Many of these factors are beyond the Company’s control. If the Company is unable to satisfy its obligations with cash on hand, the Company could attempt to refinance debt or repay debt with proceeds from a public offering of securities or selling certain assets. No assurance can be given that the Company will be able to generate sufficient cash flow to pay the interest obligations on its debt, or that funds from future borrowings, equity financings or proceeds from the sale of assets will be available to pay or refinance its debt, or on terms that will be favourable to the Company. Further, future acquisitions may decrease the Company’s liquidity by using a significant portion of its available cash or borrowing capacity to finance such acquisitions, and such acquisitions could result in a significant increase in the Company’s interest expense or financial leverage if it incurs additional debt to finance such acquisitions.

Downgrades in Encana’s credit ratings could increase its cost of capital and limit its access to capital, suppliers or counterparties.

Rating agencies regularly evaluate the Company, basing their ratings of its long-term and short-term debt on a number of factors. This includes the Company’s financial strength as well as factors not entirely within its control, including conditions affecting the oil and gas industry generally and the wider state of the economy. One of the Company’s credit ratings was downgraded below an investment-grade credit rating. There can be no assurance that the Company’s other credit ratings will not also be downgraded, including below an investment-grade credit rating.

The Company’s borrowing costs and ability to raise funds are directly impacted by its credit ratings. A downgrade may increase the cost of borrowing under the Company’s existing credit facilities, limit access to

 

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private and public markets to raise short-term and long-term debt, and negatively impact the Company’s cost of capital. Further, as a result of the downgrade to one of the Company’s credit ratings, access to the Company’s U.S. commercial paper program has been eliminated.

Credit ratings may also be important to suppliers or counterparties when they seek to engage in certain transactions. Downgrades in one or more of the Company’s credit ratings below investment-grade may require the Company to post collateral, letters of credit, cash or other forms of security as financial assurance of the Company’s performance under certain contractual arrangements with marketing counterparties, facility construction contracts, and pipeline and midstream service providers. Additionally, certain of these arrangements contain financial assurance language that may, under certain circumstances, permit the Company’s counterparties to request additional collateral.

In connection with certain over-the-counter derivatives contracts and other trading agreements, the Company could be required to provide additional collateral or to terminate transactions with certain counterparties based on its credit rating. The occurrence of any of the foregoing could adversely affect the Company’s ability to execute portions of its business strategy, including hedging, and could have a material adverse effect on its liquidity and capital position.

Encana is dependent on partners to fund development projects conducted through joint ventures and partnerships, which if such funding is unavailable may adversely affect the Company’s operations and financial condition.

Some of Encana’s projects are conducted through joint ventures, partnerships or other arrangements, where Encana is dependent on its partners to fund their contractual share of the capital and operating expenditures related to such projects. If these partners do not approve or are unable to fund their contractual share of certain capital or operating expenditures, suspend or terminate such arrangements or otherwise fulfill their obligations, this may result in project delays or additional future costs to Encana, all of which may affect the viability of such projects.

These partners may also have strategic plans, objectives and interests that do not coincide with and may conflict with those of Encana. While certain operational decisions may be made solely at the discretion of Encana in its capacity as operator of certain projects, major capital and strategic decisions affecting such projects may require agreement among the partners. While Encana and its partners generally seek consensus with respect to major decisions concerning the direction and operation of the project assets, no assurance can be provided that the future demands or expectations of any party, including Encana, relating to such assets will be met satisfactorily or in a timely manner. Failure to satisfactorily meet such demands or expectations may affect Encana’s or its partners’ participation in the operation of such assets or the timing for undertaking various activities, which could negatively affect Encana’s operations and financial results. Further, Encana is involved from time to time in disputes with its partners and, as such, it may be unable to dispose of assets or interests in certain arrangements if such disputes cannot be resolved in a satisfactory or timely manner.

Encana may not realize anticipated benefits or be subject to unknown risks from acquisitions.

Encana has completed a number of acquisitions in order to strengthen its position and to create the opportunity to realize certain benefits, including, among other things, potential cost savings. Achieving the benefits of acquisitions depends in part on successfully consolidating functions and integrating operations and procedures in a timely and efficient manner, as well as being able to realize the anticipated growth opportunities and synergies from combining the acquired businesses and operations. Acquisitions could also result in difficulties in being able to hire, train or retain qualified personnel to manage and operate such properties.

Acquiring oil and natural gas properties requires the Company to assess reservoir and infrastructure characteristics, including estimated recoverable reserves, type curve performance and future production, commodity prices, revenues, development and operating costs and potential environmental and other liabilities.

 

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Such assessments are inexact and inherently uncertain and, as such, the acquired properties may not produce as expected, may not have the anticipated reserves and may be subject to increased costs and liabilities.

Although the acquired properties are reviewed prior to completion of an acquisition, such reviews are not capable of identifying all existing or potentially adverse conditions. This risk may be magnified where the acquired properties are in geographic areas where the Company has not historically operated or in new or emerging formations. New or emerging formations and areas often have limited or no production history and the Company may be less able to predict future drilling and production results over the life-cycles of the wells in such areas. Further, the Company also may not be able to obtain or realize upon contractual indemnities from the seller for liabilities created prior to an acquisition and it may be required to assume the risk of the physical condition of the properties that may not perform in accordance with its expectations.

The Company may be unable to dispose of certain assets and may be required to retain liabilities for certain matters.

The Company may identify certain assets for disposition, which could increase capital available for other activities or reduce the Company’s existing indebtedness. Various factors could materially affect the Company’s ability to dispose of those assets or complete announced transactions, including current commodity prices, the availability of purchasers willing to purchase certain assets at prices and on terms acceptable to the Company, approval by the Board of Directors, due diligence, favourable market conditions, the assignability of joint venture, partnership or other arrangements and stock exchange, regulatory and third party approvals. These factors may also reduce the proceeds or value to Encana.

The Company may also retain certain liabilities for certain matters in a sale transaction. The magnitude of any such retained liabilities or indemnification obligations may be difficult to quantify at the time of the transaction and could ultimately be material. Further, certain third parties may be unwilling to release the Company from guarantees or other credit support provided prior to the sale of the divested assets. As a result, after the sale of certain assets, the Company may remain secondarily liable for the obligations guaranteed or supported to the extent that the purchaser of the assets fails to perform its obligations.

Encana’s risk management activities may prevent the Company from fully benefiting from price increases and expose us to other risks.

The nature of the Company’s operations results in exposure to fluctuations in commodity prices. The Company monitors its exposure to such fluctuations and, where the Company deems it appropriate, utilizes derivative financial instruments and physical delivery contracts to mitigate the potential impact of declines in natural gas, oil or NGLs prices.

Under U.S. GAAP, derivative financial instruments that do not qualify or are not designated as hedges for accounting purposes are fair valued with the resulting changes recognized in current period net earnings. The utilization of derivative financial instruments may therefore introduce significant volatility into the Company’s reported net earnings.

The terms of the Company’s various risk management agreements may limit the benefit to the Company of commodity price increases. The Company may also suffer financial loss if the Company is unable to produce natural gas, oil or NGLs, or if counterparties to the Company’s risk management agreements fail to fulfill their obligations under the agreements, particularly during periods of declining commodity prices.

Encana’s operations are subject to the risk of business interruption and casualty losses. The Company’s insurance may not fully protect us against these risks and liabilities.

The Company’s business is subject to all of the operating risks normally associated with the exploration for, development of and production of natural gas, oil and NGLs and the operation of midstream facilities. These risks include blowouts, explosions, fire, gaseous leaks, migration of harmful substances and liquid spills, loss of

 

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well control, surface spills and uncontrolled ground releases of fluids during hydraulic fracturing or other similar activities, acts of vandalism and terrorism, any of which could cause personal injury, result in damage to, or destruction of, natural gas and oil wells or formations or production facilities and other property, equipment and the environment, as well as interrupt operations.

In addition, all of Encana’s operations will be subject to all of the risks normally incident to the transportation, processing, storing and marketing of natural gas, oil, NGLs and other related products, drilling and completion of natural gas and oil wells, and the operation and development of natural gas and oil properties, including encountering unexpected formations or pressures, premature declines of reservoir pressure or productivity, blowouts, equipment failures and other accidents, sour gas releases, uncontrollable flows of natural gas, oil or well fluids, adverse weather conditions, spills and migration of hazardous chemicals, pollution and other environmental risks.

The Company has become increasingly dependent upon information technology systems to conduct daily operations. The Company depends on various information technology systems to estimate reserve quantities, process and record financial and operating data, analyze seismic and drilling information, and communicate with employees and third-party partners. Unauthorized access to these systems by employees or third parties could lead to corruption or exposure of confidential, fiduciary or proprietary information, interruption to communications or operations or disruption to the Company’s business activities or its competitive position. The Company applies technical and process controls in line with industry-accepted standards to protect its information assets and systems and are reviewed by the appropriate senior management with oversight from the Company’s Board of Directors; however these controls may not adequately prevent cyber-security breaches. There is no assurance that the Company will not suffer losses associated with cyber-security breaches in the future, and the Company may be required to expend significant additional resources to investigate, mitigate and remediate any potential vulnerabilities.

We maintain insurance against some, but not all, of these risks and losses. The occurrence of a significant event against the Company which Encana is not fully insured could have a material adverse effect on the Company’s financial position.

The decision to pay dividends and the amount of such dividends is subject to the discretion of the Board of Directors based on numerous factors and may vary from time to time.

Although the Company currently intends to pay quarterly cash dividends to its shareholders, these cash dividends may be reduced or suspended. The amount of cash available to the Company to pay dividends, if any, can vary significantly from period to period for a number of reasons, including, among other things: Encana’s operational and financial performance; fluctuations in the costs to produce natural gas, oil and NGLs; the amount of cash required or retained for debt service or repayment; amounts required to fund capital expenditures and working capital requirements; access to equity markets; foreign currency exchange rates and interest rates; and the risk factors set forth in this Annual Report on Form 10-K.

The decision whether or not to pay dividends and the amount of any such dividends are subject to the discretion of the Board of Directors, which regularly evaluates the Company’s proposed dividend payments and the solvency test requirements of the CBCA. In addition, the level of dividends per common share will be affected by the number of outstanding common shares and other securities that may be entitled to receive cash dividends or other payments. Dividends may be increased, reduced or suspended depending on the Company’s operational success and the performance of its assets. The market value of the common shares may deteriorate if the Company is unable to meet dividend expectations in the future, and that deterioration may be material.

Encana does not operate all of its properties and assets and has limited control over factors that could adversely affect the Company’s financial performance.

Other companies operate a portion of the assets in which Encana has ownership interests. Encana may have limited ability to exercise influence over operations of these assets or their associated costs. Encana’s dependence

 

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on the operator and other working interest owners for these properties and assets, and its limited ability to influence operations and associated costs, could materially adversely affect the Company’s financial performance. The success and timing of Encana’s activities on assets operated by others therefore will depend upon a number of factors that are outside of the Company’s control, including timing and amount of capital expenditures, timing and amount of operating and maintenance expenditures, the operator’s expertise and financial resources, approval of other participants, selection of technology and risk management practices.

Fluctuations in exchange rates could affect expenses or result in realized and unrealized losses.

Worldwide prices for natural gas and oil are set in U.S. dollars. Although Encana’s financial results are consolidated in Canadian dollars, the Company reports its financial results in U.S. dollars. As Encana operates in both Canada and the U.S., many of the Company’s expenses are incurred outside of the U.S. and are denominated in Canadian dollars. Fluctuations in the exchange rate between the U.S. dollar and the Canadian dollar could impact the Company’s revenue and expenses and have an adverse effect on the Company’s financial performance and condition.

In addition, the Company has U.S. dollar denominated long-term debt. Fluctuations in the exchange rate between the U.S. dollar and the Canadian dollar could result in realized and unrealized losses on U.S. dollar denominated long-term debt.

The inability of our customers and other contractual counterparties to satisfy their obligations to us may have a material adverse effect on us.

Encana is exposed to the risks associated with counterparty performance including credit risk and performance risk. Encana may experience material financial losses in the event of customer payment default for commodity sales and financial derivative transactions. Encana’s liquidity may also be impacted if any lender under the Company’s existing credit facilities is unable to fund its commitment. Performance risk can impact Encana’s operations by the non-delivery of contracted products or services by counterparties, which could impact project timelines or operational efficiency.

Encana has certain indemnification obligations to certain counterparties that could have a material adverse effect on Encana.

Encana has agreed to indemnify or be indemnified by numerous counterparties for certain liabilities and obligations associated with businesses or assets retained or transferred by the Company. Specifically, in relation to a corporate reorganization to split into two independent publicly traded energy companies, Encana and Cenovus Energy Inc. (“Cenovus”) have each agreed to indemnify the other for certain liabilities and obligations associated with, among other things, in the case of Encana’s indemnity, the business and assets retained by Encana, and in the case of Cenovus’s indemnity, the business and assets transferred to Cenovus. Encana also has indemnification obligations under certain acquisition and divestiture activities it has undertaken.

Encana cannot determine whether it will be required to indemnify certain counterparties for any substantial obligations. Encana also cannot be assured that, if a counterparty is required to indemnify Encana and its affiliates for any substantial obligations, such counterparties will be able to satisfy such obligations. Any indemnification claims against Encana pursuant to the provisions of the transaction agreements could have a material adverse effect on Encana.

The Company is subject to claims, litigation, administrative proceedings and regulatory actions that may not be resolved in the Company’s favour.

Encana may be subject to claims, litigation, administrative proceedings and regulatory actions. The outcome of these matters may be difficult to assess or quantify, and there cannot be any assurance that such matters will be resolved in the Company’s favour. If Encana is unable to resolve such matters favourably, the Company or its directors, officers or employees may become involved in legal proceedings that could result in an onerous or

 

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unfavourable decision, including fines, sanctions, monetary damages or the inability to engage in certain operations or transactions. The defence of such matters may also be costly and time consuming, and could divert the attention of management and key personnel from the Company’s operations. Encana may also be subject to adverse publicity associated with such matters, regardless of whether such allegations are valid or whether the Company is ultimately found liable. As a result, such matters could have a material adverse effect on the Company’s reputation, financial position, results of operations or liquidity. See Item 3 of this Annual Report on Form 10-K.

Changes to existing regulations related to income tax laws, royalty regimes, environmental laws or other regulations could adversely affect the Company’s business, financial position, cash flows or results of operations.

Income tax laws, royalty regimes, environmental laws or other laws and regulations may in the future be changed or interpreted in a manner that adversely affects the Company or its securityholders. Tax authorities having jurisdiction over the Company or its shareholders could change their administrative practices, or may disagree with the manner in which the Company calculates its tax liabilities or structures its arrangements, to the detriment of the Company or its securityholders. Changes to existing laws and regulations or the adoption of new laws and regulations could also increase the Company’s cost of compliance and adversely affect the Company’s business, financial position, cash flows or results of operations.

Encana relies on certain key personnel, and if the Company is unable to attract and retain key personnel necessary for its business, Encana’s operations may be negatively impacted.

The Company relies on certain key personnel for the development of its business. The experience, knowledge and contributions of the Company’s existing management team and directors to the immediate and near-term operations and direction of the Company are likely to continue to be of central importance for the foreseeable future. As such, the unexpected loss of services from or retirement of such key personnel could have a material adverse effect on the Company. In addition, the competition for qualified personnel in the oil and gas industry means there can be no assurance that the Company will be able to continue to attract and retain such personnel with the required specialized skills necessary for its business.

Item 1B. Unresolved Staff Comments

None.

Item 3. Legal Proceedings

Encana is involved in various legal claims and actions arising in the normal course of the Company’s operations. Although the outcome of these claims cannot be predicted with certainty, the Company does not expect these matters to have a material adverse effect on Encana’s financial position, cash flows or results of operations. If an unfavourable outcome were to occur, there exists the possibility of a material impact on the Company’s consolidated net earnings or loss for the period in which the effect becomes reasonably estimable. See Item 1A. Risk Factors, “The Company is subject to claims, litigation, administrative proceedings and regulatory actions that may not be resolved in the Company’s favour.” of this Annual Report on Form 10-K.

For additional information, see Note 26 of Encana’s audited Consolidated Financial Statements under Item 8 of this Annual Report on Form 10-K.

Item 4. Mine Safety Disclosures

Not applicable.

 

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PART II

Item 5. Market for Registrant’s Common Equity, Related Shareholder Matters and Issuer Purchases of Equity Securities

MARKET INFORMATION, SHAREHOLDERS, AND DIVIDEND INFORMATION

Market Information

Encana’s common shares are listed and posted for trading on the TSX and NYSE under the symbol “ECA”. The following table sets forth the price range of Encana’s common shares as reported by the TSX and NYSE for the periods indicated:

 

    

Toronto Stock

Exchange

          

New York Stock

Exchange

 
         High            Low                  High            Low    
       (C$ per share)                        ($ per share)          

2016

             

Three months ended:

             

December 31, 2016

     17.70          12.03            13.40          8.96    

September 30, 2016

     13.87          9.56            10.75          7.35    

June 30, 2016

     11.47          7.41            9.03          5.63    

March 31, 2016

     8.26          4.14            6.37          3.01    

2015

             

Three months ended:

             

December 31, 2015

     11.97          6.49            9.23          4.66    

September 30, 2015

     13.94          7.44            11.09          5.55    

June 30, 2015

     17.75          13.50            14.72          10.82    

March 31, 2015

     17.79          13.50                  14.36          10.54    

Holders

The Company is authorized to issue an unlimited number of common shares and Class A Preferred Shares limited to a number equal to not more than 20 percent of the issued and outstanding number of common shares at the time of the issuance. As at February 17, 2017, there were approximately 973 million common shares outstanding held by 25,268 shareholders of record, and no Class A Preferred Shares outstanding.

Dividend Information

In 2016, Encana paid a quarterly dividend of US$0.015 per share (US$0.06 per share annually). In 2015, Encana paid a quarterly dividend of US$0.07 per share (US$0.28 per share annually). Dividend payments are not guaranteed and the amount of cash to be distributed as dividends in the future may change. Any decision to pay dividends will be determined at the discretion of the Board of Directors after consideration of numerous factors including: (i) the earnings of the Company; (ii) financial requirements for the Company’s operations; (iii) the satisfaction by the Company of liquidity and solvency tests described in the CBCA; and (iv) any agreements relating to the Company’s indebtedness that restrict the declaration and payment of dividends. See Item 1A. Risk Factors of this Annual Report on Form 10-K, “The decision to pay dividends and the amount of such dividends is subject to the discretion of the Board of Directors based on numerous factors and may vary from time to time”. The Company currently pays dividends quarterly to shareholders of record as of the 15th day (or the previous business day) of the last month of each calendar quarter, with the last business day of the same month being the corresponding payment date. The dividends paid on the common shares are expected to be designated as “eligible dividends” for Canadian income tax purposes, unless otherwise notified.

 

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SECURITIES AUTHORIZED FOR ISSUANCE UNDER EQUITY COMPENSATION PLANS

Information concerning securities authorized for issuance under equity compensation plans is set forth in the Proxy Statement relating to the Company’s 2017 annual meeting of shareholders, which is incorporated herein by reference.

PURCHASES OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PERSONS

None.

RECENT SALES OF UNREGISTERED EQUITY SECURITIES

None.

 

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PERFORMANCE GRAPH

The following performance graph and related information shall not be deemed “soliciting material” or to be “filed” with the SEC, nor shall information be incorporated by reference into any future filing under the Securities Act of 1933, as amended (the “Securities Act”) or the Exchange Act, except to the extent that the Company specifically incorporates it by reference into such filing.

The following graph compares the cumulative five-year total return to shareholders of Encana’s common shares relative to the cumulative total returns of the S&P/TSX Composite Index and a peer group of 24 companies operating in the same industry as the Company on December 31 for each of the years indicated. The companies included in the peer group are Anadarko Petroleum Corporation; Apache Corporation; Baytex Energy Corporation; Cabot Oil & Gas Corporation; Canadian Natural Resources Limited; Chesapeake Energy Corporation; Concho Resources Inc.; Continental Resources Inc.; Crescent Point Energy Corporation; Enerplus Corporation; Devon Energy Corporation; EOG Resources Inc.; Hess Corporation; Murphy Oil Corporation; Newfield Exploration Corporation; Noble Energy Inc.; Marathon Oil Corporation; Penn West Petroleum Ltd.; Pengrowth Energy Corporation; Pioneer Natural Resources Company; Range Resources Corporation; Southwestern Energy Company; Vermillion Energy Inc.; and Whiting Petroleum Corporation. The graph was prepared assuming $100 was invested on December 31, 2011 in Encana’s common shares, the S&P 500, the S&P/TSX Composite Index and the peer groups, and dividends have been reinvested subsequent to the initial investment. The graph is included for historical comparative purposes only and should not be considered indicative of future share performance.

Comparison of 5-Year Cumulative Total Return Among

Encana Corporation, the S&P 500, the S&P/TSX Composite Index, and a Peer Group

 

 

LOGO

 

Fiscal Year Ended December 31    2011      2012      2013      2014      2015      2016    

Encana

   $     100.00      $     111.00      $     105.00      $ 82.00      $ 32.00      $ 74.00    

Peer Group

     100.00        94.00        123.00        97.00        59.00        86.00    

S&P 500

     100.00        116.00        153.00            174.00        176.00        197.00    

S&P/TSX Composite Index

     100.00        107.00        121.00        134.00            123.00            148.00    

 

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Item 6: Selected Financial Data

The following table sets forth selected financial data of the Company and its consolidated subsidiaries over the five-year period ended December 31, 2016, which has been derived from the Company’s audited financial statements. The financial information below should be read in conjunction with Item 7 and Item 8 of this Annual report on Form 10-K.

 

Year Ended December 31 (US$ millions, except as indicated)    2016           2015           2014           2013           2012     

Statement of Earnings Data:

                      

Revenues

     2,918              4,422              8,019              5,858              5,160      

Impairments

     1,396              6,473              -              21              4,695      

Operating Income (Loss)

     (1,881)             (6,301)             2,331              870              (4,415)     

Gain (Loss) on Divestitures, Net

     390              14              3,426              7              -      

Net Earnings (Loss) Attributable to Common Shareholders

     (944)             (5,165)             3,392              236              (2,794)     

Per Share Data:

                      

Net Earnings (Loss) per Common Share Basic & Diluted

     (1.07)             (6.28)             4.58              0.32              (3.79)     

Dividends Declared per Common Share

     0.06              0.28              0.28              0.67              0.80      

Weighted Average Common Shares Outstanding
Basic & Diluted (millions)

     882.6              822.1              741.0              737.7              736.3      

Balance Sheet Data:

                      

Cash and Cash Equivalents

     834              271              338              2,566              3,179      

Total Assets (1)(2)

     14,653              15,614              24,492              17,599              18,599      

Capital Lease Obligations and The Bow Office Building

     1,570              1,591              1,959              2,175              1,743      

Long-Term Debt, Including Current Portion (2)

     4,198              5,333              7,301              7,078              7,623      

Total Shareholders’ Equity

     6,126              6,167              9,685              5,147              5,295      

Statement of Cash Flow Data:

                      

Cash From (Used In) Operating Activities

     625              1,681              2,667              2,289              3,107      

Non-GAAP Cash Flow (3)

     838              1,430              2,934              2,581              3,537      

Capital Expenditures

     1,132              2,232              2,526              2,712              3,476      

Net Acquisitions & (Divestitures)

     (1,052)             (1,838)             (1,329)             (521)             (3,664)     

Foreign Exchange Rates (US$ per C$1):

                      

Average

     0.755              0.782              0.905              0.971              1.000      

Period End

     0.745              0.723              0.862              0.940              1.005      

Production Volumes:

                      

Natural Gas (MMcf/d)

     1,383              1,635              2,350              2,777              2,981      

Oil (Mbbls/d)

     73.7              87.0              49.4              25.8              17.6      

Total NGLs (Mbbls/d) (4)

     48.4              46.4              37.4              28.1              13.4      

Total Oil & NGLs (Mbbls/d)

     122.1              133.4              86.8              53.9              31.0      

Total Production (MBOE/d)

     352.7              405.9              478.5              516.7              527.9      

Commodity Prices, Including Realized Gain (Loss) on
Risk Management:

                      

Natural Gas ($/Mcf)

     2.10              3.89              4.59              4.09              4.82      

Oil ($/bbl)

     48.68              49.68              86.03              88.19              84.06      

Total NGLs ($/bbl) (4)

     23.90              21.66              48.09              48.95              63.37      

Oil & NGLs ($/bbl)

     38.85              39.93              69.70              67.75              75.12      

Total ($/BOE)

     21.69              28.81              35.21              29.05              31.62      

 

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(1)

As a result of early adopting ASU 2015-17, “Balance Sheet Classification of Deferred Taxes”, the Company reclassified current deferred income taxes to non-current deferred income taxes of: 2014 - $90 million; 2013 - $3 million; and 2012 - $49 million.

(2)  

As a result of adopting ASU 2015-03, “Simplifying the Presentation of Debt Issuance Costs”, the Company reclassified debt issuance costs resulting in a decrease to Other Assets with a corresponding decrease to Long-Term Debt of: 2015 - $30 million; 2014 - $39 million; 2013 - $46 million; and 2012 - $52 million.

(3)

Non-GAAP Cash Flow is a non-GAAP measure and has no standardized meaning under U.S. GAAP. It is used by Management and investors to help assist in measuring Encana’s ability to finance capital programs and meet financial obligations. It is not intended to replace Cash From (Used In) Operating Activities as a measure. Non-GAAP Cash Flow is defined and reconciled in the Non-GAAP Measures section under Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations.

(4)

Includes plant condensate.

Supplemental Quarterly Financial Information (Unaudited)

See Note 28 of Encana’s audited Consolidated Financial Statements under Item 8 of this Annual Report on Form 10-K.

 

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Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations

The MD&A is intended to provide a narrative description of Encana’s business from management’s perspective. This MD&A should be read in conjunction with the audited Consolidated Financial Statements and accompanying notes for the period ended December 31, 2016 which are included in Item 8 of this Annual Report on Form 10-K. Common industry terms and abbreviations are used throughout this MD&A and are defined in the Definitions, Conversions and Conventions sections of this Annual Report on Form 10-K. This MD&A includes the following sections:

 

   

Executive Overview

   

Results of Operations

   

Liquidity and Capital Resources

   

Accounting Policies and Estimates

   

Non-GAAP Measures

 

 

 Executive Overview

 

Strategy

 

 

Encana is a leading North American energy producer that is focused on developing its multi-basin portfolio of natural gas, oil and NGL producing plays. Encana is committed to growing long-term shareholder value through a disciplined focus on generating profitable growth. The Company is pursuing the key business objectives of exercising a disciplined capital allocation strategy by investing in a limited number of core assets, growing high margin liquids volumes, maximizing profitability through operating efficiencies and reducing costs, and preserving balance sheet strength.

To excel in executing its strategy, Encana focuses on the core values of One, Agile and Driven which guide the organization to be flexible, responsive, determined and motivated with a commitment to excellence and a passion to succeed as a unified team.

As a result of Encana’s continual review and evaluation of its strategy and changing market conditions, during 2016 Encana focused on quality growth from high margin, scalable projects located in some of the best plays in North America referred to as the “Core Assets”, comprising Montney and Duvernay in Canada and Eagle Ford and Permian in the U.S. These world-class assets form a multi-basin portfolio enabling flexible and efficient investment of capital. The Company rapidly deploys successful ideas and practices across these assets, becoming more efficient as innovative and sustainable technical improvements are implemented.

For additional information on Encana’s strategy, its reporting segments and the plays in which the Company operates, refer to Items 1 and 2 of this Annual Report on Form 10-K. In evaluating its operations, the Company reviews performance-based measures such as Non-GAAP Cash Flow and Corporate Margin which are non-GAAP measures and do not have any standardized meaning under U.S. GAAP. These measures may not be similar to measures presented by other issuers and should not be viewed as a substitute for measures reported under U.S. GAAP. Further information regarding these measures, including reconciliations to the closest GAAP measure, can be found in the Non-GAAP Measures section of this MD&A.

2016 Highlights

 

Encana has been committed to building a business model that allows the Company to adapt to fluctuating commodity prices. Despite the market environment in 2016, Encana achieved strong results through its focus on cost reduction and capital efficiency. Lower benchmark prices during 2016 compared to 2015 contributed to decreases in Encana’s average realized natural gas and liquids prices of 28 percent and 8 percent, respectively, resulting in lower revenues, additional ceiling test impairments and a reduction in Encana’s capital program. Encana took steps to strengthen its balance sheet and improve its liquidity through divestitures, a public share offering and debt repayments.

 

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Significant Developments

 

   

Raised gross proceeds of $1.15 billion through a public offering of 123,050,000 common shares of Encana. A portion of the proceeds was used to repay indebtedness under the Company’s credit facilities.

 

   

Streamlined the Company’s portfolio of properties and raised funds through the sale of the Company’s DJ Basin assets located in northern Colorado and the Company’s Gordondale assets in Montney located in northwestern Alberta, generating proceeds of approximately $1.1 billion, after closing and other adjustments, which were used to repay indebtedness under the Company’s credit facilities.

 

   

Strengthened the balance sheet through the completion of tender offers for the purchase of $489 million of senior notes.

 

   

Completed a restructuring to align staffing levels and the organizational structure with the Company’s reduced capital spending program as a result of the low commodity price environment. Including the impact of the sale of the DJ Basin assets, Encana reduced its workforce by approximately 20 percent in 2016.

Financial Results

 

   

Reported a net loss of $944 million, including before-tax amounts for non-cash ceiling test impairments of $1,396 million, a gain on divestitures of $390 million, net losses on risk management of $261 million, a foreign exchange gain of $210 million and long-term incentive costs of $134 million, as well as a deferred tax valuation allowance of $121 million.

 

   

Generated cash from operating activities of $625 million and Non-GAAP Cash Flow of $838 million.

 

   

Paid dividends of $0.06 per share.

 

   

Held cash and cash equivalents of $834 million and had available credit facilities of $4.5 billion for total liquidity of $5.3 billion at year end.

 

   

Reduced long-term debt by $1.1 billion from 2015 and lowered interest expense on debt, excluding a one-time payment, by 11 percent.

Capital Investment

 

   

Drilled productive and low cost wells, leading to highly efficient capital activity focused on the Core Assets where 97 percent of total capital spending was directed.

 

   

Focused on short-cycle high margin projects which has allowed the Company to respond to fluctuations in commodity prices and reduce capital spending without compromising the strategy.

Production

 

   

Average natural gas production volumes of 1,383 MMcf/d and average oil and NGL production volumes of 122.1 Mbbls/d which accounted for 65 percent and 35 percent of total production volumes, respectively.

 

   

Core Assets production was 72 percent of total production volumes.

Operating Expenses

 

   

Realized significant cost savings through operational improvements. Reduced transportation and processing expense by $351 million, or 28 percent, and reduced operating expense, excluding long-term incentive costs, by $180 million, or 25 percent, compared to 2015.

 

   

Completed an organizational restructuring and realized efficiencies which reduced administrative expense by $34 million, or 15 percent, excluding the impact of long-term incentive costs and restructuring charges.

 

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2017 Outlook

 

Industry Outlook

The oil and gas industry is cyclical and commodity prices are volatile. Oil prices during 2017 are expected to reflect global supply and demand dynamics as well as the geopolitical environment. A recent agreement among members of OPEC and select non-OPEC countries to temporarily cut crude oil production starting in January 2017 has been supportive of oil prices; however, the agreement could be offset by increased North American production or non-compliance with the agreement. Natural gas prices are expected to improve in 2017 as expectations for a colder winter relative to 2016, coupled with increases in exports and industrial demand, may absorb the oversupply that depressed prices to multi-year lows in 2015 and 2016. After declining in 2016, natural gas production in the contiguous U.S. is not expected to increase significantly until additional pipeline infrastructure in the U.S. northeast is able to alleviate bottlenecks in that region.

Company Outlook

Encana believes proactive measures taken in 2016 and previous years have positioned the Company to be flexible and to continue to achieve strong returns from the Core Assets through this evolving commodity price cycle.

Encana enters into commodity derivative financial instruments on a portion of its expected natural gas, oil and condensate production volumes to reduce volatility and help sustain revenues during periods of lower prices. As of January 31, 2017, Encana’s 2017 commodity price mitigation program covers 70 to 75 percent of expected total production.

Capital Investment

Total anticipated 2017 capital investment of approximately $1.6 billion to $1.8 billion is expected to be funded from 2017 cash generated from operating activities and cash on hand. Encana plans to focus the majority of its capital investment on its Core Assets with an objective to grow value in these plays. The majority of the 2017 capital program is expected to be allocated to growing Encana’s Permian production through increasing the number of rigs in the play, which is anticipated to result in approximately twice as many new Permian horizontal wells on stream in 2017 as compared to 2016. Capital investment in Montney is expected to be allocated to both Cutbank Ridge and Pipestone. Cutbank Ridge production is expected to ramp up in the latter half of 2017 to flow through two new facilities that are expected to be completed in late 2017.

To further enhance the economics of its Core Assets, Encana expects to continually improve well performance and lower drilling and completion costs through efficiency gains and lower service costs. The impact of Encana’s disciplined capital program and continuous innovation will allow the Company to increase its inventory of premium return well locations in the Core Assets, creating flexibility and opportunity to grow cash flows and production volumes going forward.

Production

In 2017, Encana expects natural gas production volumes of 1,150 MMcf/d to 1,200 MMcf/d and liquids production volumes of 125.0 Mbbls/d to 130.0 Mbbls/d. Core Asset production is expected to increase by more than 20 percent from the fourth quarter of 2016 to the fourth quarter of 2017. Encana also expects to increase liquids production to over 40 percent of total production in the fourth quarter of 2017 and anticipates 2017 Core Asset production will account for the majority of total production volumes. Growing production in the Core Assets is expected to increase cash flows and deliver competitive returns.

 

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Operating Expenses

Encana expects to maintain its focus on reducing upstream operating expenses, transportation and processing costs, and administrative costs through efficiency improvements and lower service costs. Encana expects to see ongoing benefits from cost savings initiatives implemented and contract renegotiations completed in 2016 with expected operating expense of $3.75 per BOE to $4.25 per BOE and transportation and processing expense of $6.50 per BOE to $7.00 per BOE. The Company anticipates that the current staffing levels can efficiently support accelerated activity levels in 2017 with expected administrative expense of $1.40 per BOE to $1.60 per BOE. Operating expense and administrative expense exclude long-term incentive costs. Lower interest expense is expected as a result of steps taken in 2016 to decrease debt levels. Inflation has been insignificant in recent years, but is still a factor in the North American economy and Encana may experience inflationary pressure on the cost of services.

Further information on Encana’s 2017 Corporate Guidance can be accessed on the Company’s website at www.encana.com .

 

 

 Results of Operations

 

The following discussion of Encana’s results of operations for each of the years in the three-year period ended December 31, 2016, should be read in conjunction with the Consolidated Financial Statements and notes thereto included in Item 8 of this Annual Report on Form 10-K.

Selected Financial Information

 

 

($ millions)    2016        2015        2014    

 

Product Revenues

   $ 2,443        $ 3,350        $ 6,238    

 

Gains (Losses) on Risk Management, net

     (275)         592          372    

 

Market Optimization

     647          368          1,251    

 

Other

     103          112          158    

Total Revenues

     2,918          4,422          8,019    

 

Total Operating Expenses (1)

     4,799          10,723          5,688    

 

Operating Income (Loss)

     (1,881)         (6,301)         2,331    

 

Total Other (Income) Expenses

     (261)         1,709              (2,298)   

 

Net Earnings (Loss) Before Income Tax

         (1,620)         (8,010)         4,629    

 

Net Earnings (Loss)

   $ (944)       $     (5,165)       $ 3,426    
(1)

Total Operating Expenses include non-cash items such as DD&A, impairments, accretion of asset retirement obligations and long-term incentive costs.

 

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Revenues

 

Encana’s revenues are substantially derived from sales of natural gas, oil and NGL production. Increases or decreases in Encana’s revenue, profitability and future production are highly dependent on the commodity prices the Company receives. Prices are market driven and the Company expects that future prices will continue to fluctuate due to factors beyond its control, such as supply and demand, seasonality and geopolitical and economic factors. Canadian Operations realized prices are closely linked to the AECO and Edmonton Light Sweet benchmark prices, except for production from Deep Panuke which is closely related to the Algonquin City Gate benchmark price due to the proximity of the offshore production platform to New England. The USA Operations realized prices generally reflect NYMEX and WTI benchmark prices. Realized NGL prices are significantly influenced by oil benchmark prices and the NGL production mix. Recent trends in benchmark prices relevant to Encana are shown in the table below:

Benchmark Prices

 

(average for the period)    2016        2015        2014    

Natural Gas

        

NYMEX ($/MMBtu)

   $ 2.46         $ 2.66         $ 4.41     

AECO (C$/Mcf)

     2.09           2.77           4.42     

Algonquin City Gate ($/MMBtu)

     3.10           4.74           8.06     

Oil

        

WTI ($/bbl)

   $       43.32         $       48.80         $       93.00     

Edmonton Light Sweet (C$/bbl)

     52.98           57.21           94.57     

 

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Production Volumes and Realized Prices

 

      Production Volumes (1)             Realized Prices (2)  
      2016         2015      2014              2016         2015      2014   

Natural Gas (MMcf/d, $/Mcf)

                    

Canadian Operations

                   966           971        1,378          $             1.77         $ 2.75      $ 4.89   

USA Operations

     417           664        972            2.29           2.60        4.62   

Total

     1,383           1,635        2,350            1.93           2.69        4.78   

Oil (Mbbls/d, $/bbl)

                    

Canadian Operations

     2.0           5.6        13.6                36.32               43.90        82.86   

USA Operations

     71.7           81.4        35.8            38.67           43.31        81.27   

Total

     73.7           87.0        49.4            38.61           43.35        81.71   

NGLs – Plant Condensate (Mbbls/d, $/bbl)

                    

Canadian Operations

     17.6           13.9        9.9            40.97           43.26        82.92   

USA Operations

     2.7           2.9        2.1            32.48           37.39        76.33   

Total

     20.3           16.8        12.0            39.84           42.26        81.77   

NGLs – Other (Mbbls/d, $/bbl)

                    

Canadian Operations

     7.6           8.9        13.7            12.13           7.13        32.14   

USA Operations

     20.5           20.7        11.7            12.53           11.20        32.20   

Total

     28.1           29.6        25.4            12.42           9.98        32.18   

Total NGLs (Mbbls/d, $/bbl)

                    

Canadian Operations

     25.2           22.8        23.6            32.32           29.21        53.41   

USA Operations

     23.2           23.6        13.8            14.86           14.37        38.92   

Total

     48.4           46.4        37.4            23.94           21.66        48.09   

Total Oil  & NGLs (Mbbls/d, $/bbl)

                    

Canadian Operations

     27.2           28.4        37.2            32.61           32.10        64.16   

USA Operations

     94.9           105.0        49.6            32.84           36.80        69.54   

Total

     122.1           133.4        86.8            32.79           35.80        67.24   

Total Production (MBOE/d, $/BOE)

                    

Canadian Operations

     188.2           190.2        266.9            13.82           18.84        34.21   

USA Operations

     164.5           215.7        211.6            24.78           25.93        37.53   

Total

     352.7           405.9        478.5                  18.93           22.61        35.67   

Production Mix (%)

                    

Natural Gas

     65           67        82               

Oil & NGLs (3)

     35           33        18                                       

Core Asset Production

                    

Natural Gas (MMcf/d)

     887           838        674               

Oil (Mbbls/d)

     64.1           66.5        26.0               

NGLs – Plant Condensate (Mbbls/d)

     19.2           15.1        7.2               

NGLs – Other (Mbbls/d)

     22.9           21.3        11.1               

Total NGLs (Mbbls/d)

     42.1           36.4        18.3               

Total Oil & NGLs (Mbbls/d)

     106.2           102.9        44.3               

Total Production (MBOE/d)

     254.2           242.6        156.6               

% of Total Encana Production

     72           60        33                                       
(1)

Average daily.

(2)

Average per-unit prices, excluding the impact of risk management activities.

(3)

Includes plant condensate.

 

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As a means of managing commodity price volatility, Encana enters into commodity derivative financial instruments on a portion of its expected natural gas, oil and NGL production volumes. The Company’s commodity price mitigation program reduces volatility and helps sustain revenues during periods of lower prices. Further information on the Company’s commodity price positions as at December 31, 2016 can be found in Note 24 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

Product Revenues

 

Product Revenues

 

($ millions)

  

Natural   

Gas   

     Oil         NGLs  (1)          Total     

2014

   $ 4,108          $ 1,475          $ 655          $ 6,238      

Increase (decrease) due to:

           

Production volumes (2)

     (1,391)           695            41            (655)     

Sales prices (2)

     (1,112)           (792)           (329)           (2,233)     

2015

   $       1,605          $       1,378          $       367          $       3,350      

Increase (decrease) due to:

           

Production volumes

     (258)           (209)           24            (443)     

Sales prices

     (369)           (128)           33            (464)     

2016

   $ 978          $ 1,041          $ 424          $ 2,443      
(1)

Includes plant condensate.

(2)

Production volume and sales price variances have been updated to reflect a more detailed product split.

Natural Gas Revenues

2016 versus 2015

Natural gas revenues decreased $627 million compared to 2015 primarily due to:

 

   

Lower average realized natural gas prices of $0.76 per Mcf, or 28 percent, decreased revenues by $369 million. The decrease reflected lower NYMEX, AECO and Algonquin City Gate benchmark prices which were down 8 percent, 25 percent and 35 percent, respectively; and

 

   

Lower average natural gas production volumes of 252 MMcf/d decreased revenues by $258 million. Lower volumes were primarily due to the sales of the Haynesville natural gas assets in the fourth quarter of 2015 (152 MMcf/d), the Gordondale (33 MMcf/d) and DJ Basin assets (20 MMcf/d) in the third quarter of 2016 and natural declines in Piceance (49 MMcf/d), Haynesville (21 MMcf/d) and Deep Panuke (16 MMcf/d), partially offset by successful drilling programs in Montney and Duvernay (66 MMcf/d).

2015 versus 2014

Natural gas revenues decreased $2,503 million compared to 2014 primarily due to:

 

   

Lower average natural gas production volumes of 715 MMcf/d decreased revenues by $1,391 million. Lower volumes were primarily due to the sale of certain assets in Wheatland in the first quarter of 2015 (165 MMcf/d), the sales of the Jonah and East Texas properties in the second quarter of 2014 (144 MMcf/d), the sale of the Bighorn assets in the third quarter of 2014 (135 MMcf/d), natural declines in Haynesville (114 MMcf/d) and Piceance (82 MMcf/d) and shut-in production at Deep Panuke as a result of the implementation of a seasonal operating strategy in 2015 and a higher water production rate (104 MMcf/d), partially offset by successful drilling programs in Montney and Duvernay (118 MMcf/d); and

 

   

Lower average realized natural gas prices of $2.09 per Mcf, or 44 percent, decreased revenues by $1,112 million. The decrease reflected lower NYMEX and AECO benchmark prices which were down 40 percent and 37 percent, respectively.

 

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Oil Revenues

2016 versus 2015

Oil revenues decreased $337 million compared to 2015 primarily due to:

 

   

Lower average oil production volumes of 13.3 Mbbls/d decreased revenues by $209 million. Lower volumes were primarily due to natural declines in the USA Other Upstream Operations (8.3 Mbbls/d) and on Montney oil wells (1.8 Mbbls/d), a reduced capital program in Eagle Ford (4.6 Mbbls/d) and the sales of the DJ Basin (2.1 Mbbls/d) and Gordondale assets (1.0 Mbbls/d) in the third quarter of 2016, partially offset by a successful drilling program in Permian (5.8 Mbbls/d); and

 

   

Lower average realized oil prices of $4.74 per bbl, or 11 percent, decreased revenues by $128 million. The decrease reflected lower WTI and Edmonton Light Sweet benchmark prices which were down 11 percent and 7 percent, respectively.

2015 versus 2014

Oil revenues decreased $97 million compared to 2014 primarily due to:

 

   

Lower average realized oil prices of $38.36 per bbl, or 47 percent, decreased revenues by $792 million. The decrease reflected lower WTI and Edmonton Light Sweet benchmark prices which were down 48 percent and 40 percent, respectively;

partially offset by:

 

   

Higher average oil production volumes of 37.6 Mbbls/d increased revenues by $695 million. Higher volumes were primarily due to the acquisitions of Eagle Ford and the Permian assets (24.2 Mbbls/d) in the second and fourth quarters of 2014, respectively, and successful drilling programs in Eagle Ford and Permian (18.0 Mbbls/d) and the USA Other Upstream Operations (6.0 Mbbls/d), partially offset by the sales of the Bighorn assets and the Company’s investment in PrairieSky Royalty Ltd. (“PrairieSky”) in the third quarter of 2014 (4.7 Mbbls/d), natural declines in the Canadian Operations (3.1 Mbbls/d) and the sales of the Jonah and East Texas properties in the second quarter of 2014 (1.5 Mbbls/d).

NGL Revenues

2016 versus 2015

NGL revenues increased $57 million compared to 2015 primarily due to:

 

   

Higher average realized NGL prices of $2.28 per bbl, or 11 percent, increased revenues by $33 million, mainly reflecting a shift in the NGL production mix to higher value condensate compared to 2015; and

 

   

Higher average NGL production volumes of 2.0 Mbbls/d increased revenues by $24 million. Higher volumes were primarily due to successful drilling programs in the Core Assets (7.8 Mbbls/d), partially offset by the sales of the Gordondale (2.4 Mbbls/d) and DJ Basin assets (2.1 Mbbls/d) in the third quarter of 2016 and natural declines in the USA Other Upstream Operations (1.1 Mbbls/d).

2015 versus 2014

NGL revenues decreased $288 million compared to 2014 primarily due:

 

   

Lower average realized NGL prices of $26.43 per bbl, or 55 percent, decreased revenues by $329 million. The decrease reflected lower WTI and Edmonton Light Sweet benchmark prices which were down 48 percent and 40 percent, respectively;

 

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partially offset by:

 

   

Higher average NGL production volumes of 9.0 Mbbls/d increased revenues by $41 million. Higher volumes were primarily due to successful drilling programs in the Core Assets (12.0 Mbbls/d) and the acquisitions of Eagle Ford (2.6 Mbbls/d) and the Permian assets (4.1 Mbbls/d) in the second and fourth quarters of 2014, respectively, partially offset by the sales of the Bighorn assets (6.5 Mbbls/d) and the Company’s investment in PrairieSky (1.0 Mbbls/d) in the third quarter of 2014.

Gains (Losses) on Risk Management, Net

The following table provides the effects of Encana’s risk management activities on revenues.

 

($ millions, except per-unit amounts as indicated)          2016              2015           2014                    2016              2015          2014    

Realized Gains (Losses) on Risk Management

                  

Commodity Price

                  

Natural Gas ($/Mcf)

   $ 85         $     718      $     (159)          $ 0.17         $ 1.20       $ (0.19)    

Oil ($/bbl)

     271           201        78                 10.07           6.33         4.32     

NGLs (1) ($/bbl)

     -           -        -             (0.04)          -         -     

Other (2)

     5           (2     (3)            -           -         -     

Total ($/BOE)

     361           917        (84)          $ 2.76         $     6.20       $     (0.46)    

Unrealized Gains (Losses) on Risk Management

     (636)          (325     456                

Total Gains (Losses) on Risk Management, Net

   $     (275)        $ 592      $ 372                                        
(1)

Includes plant condensate.

(2)

Other includes realized gains or losses from other derivative contracts with no associated production volumes.

Encana recognizes fair value changes from its risk management activities each reporting period. The changes in fair value result from new positions and settlements that occur during each period, as well as the relationship between contract prices and the associated forward curves. Realized gains or losses on risk management activities related to commodity price mitigation are included in the Canadian Operations, USA Operations and Market Optimization revenues as the contracts are cash settled. Unrealized gains or losses on fair value changes of unsettled contracts are included in the Corporate and Other segment. For additional information on the Company’s commodity price mitigation program, refer to Note 24 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

Market Optimization Revenues

Market Optimization revenues relate to activities that provide operational flexibility and cost mitigation for transportation commitments, product type, delivery points and customer diversification.

2016 versus 2015

Market Optimization revenues increased $279 million compared to 2015 primarily due to:

 

   

Higher sales of third-party purchased volumes used for optimization activities ($290 million).

2015 versus 2014

Market Optimization revenues decreased $883 million compared to 2014 primarily due to:

 

   

Lower sales of third-party purchased volumes related to the Company’s 2014 divestiture activities ($593 million) and lower commodity prices ($290 million).

Other Revenues

Other Revenues primarily includes amounts related to the sublease of office space in The Bow office building and interest income generated from holding cash and cash equivalents recorded in the Corporate and Other segment, as well as third party transportation and processing revenues with no associated volumes recorded in the Canadian and USA Operations segments. Further information on The Bow office sublease can be found in Note 14 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

 

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Operating Expenses

 

Production, Mineral and Other Taxes

Production, mineral and other taxes include production and property taxes. Production taxes are generally assessed as a percentage of oil and gas production revenues. Property taxes are generally assessed based on the value of the underlying assets.

 

     $ millions            $/BOE  
            2016              2015              2014                    2016              2015              2014    

Canadian Operations

   $         23        $           28        $           64          $         0.33        $         0.41        $         0.66    

USA Operations

     76          116          146          $ 1.27        $ 1.47        $ 1.89    

Total

   $ 99        $ 144        $ 210                $ 0.77        $ 0.97        $ 1.20    

2016 versus 2015

Production, mineral and other taxes decreased $45 million compared to 2015 primarily due to:

 

   

Lower production volumes and commodity prices primarily in the USA Operations ($23 million), and the sales of the Haynesville natural gas assets in the fourth quarter of 2015 and the DJ Basin and Gordondale assets in the third quarter of 2016 ($17 million).

2015 versus 2014

Production, mineral and other taxes decreased $66 million compared to 2014 primarily due to:

 

   

The sales of the Jonah and East Texas properties in the second quarter of 2014, the sale of certain assets in Wheatland in the first quarter of 2015, the sales of the Bighorn assets and the Company’s investment in PrairieSky in the third quarter of 2014 ($66 million) and lower commodity prices ($70 million);

partially offset by:

 

   

Higher oil and NGL production volumes due to the acquisitions of Eagle Ford and the Permian assets ($73 million).

Transportation and Processing

Transportation and processing expense includes transportation costs incurred to move product from production points to sales points including gathering, compression, pipeline tariffs, trucking and storage costs. Encana also incurs costs related to processing provided by third parties or through ownership interests in processing facilities to bring raw production to sales-quality product.

 

     $ millions            $/BOE  
      2016        2015        2014              2016        2015        2014    

Canadian Operations

   $ 576        $ 654        $ 826          $         8.35        $ 9.42        $ 8.45    

USA Operations (1)

     260          580          658          $ 4.33        $ 7.37        $ 8.51    

Upstream Transportation and Processing

     836          1,234          1,484          $ 6.48        $         8.33        $         8.49    

Market Optimization (1)

     87          12          -               

Corporate and Other

     (22)         6          12               

Total

   $       901        $       1,252        $       1,496                                       
(1)

Market Optimization includes downstream transportation contracts and commitments, previously included in the USA Operations, that were not transferred with certain property divestitures.

 

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2016 versus 2015

Transportation and processing expense decreased $351 million compared to 2015 primarily due to:

 

   

The renegotiation and expiration of certain transportation contracts ($138 million), the sale of the Haynesville natural gas assets in the fourth quarter of 2015 ($97 million), the sales of the DJ Basin and Gordondale assets in the third quarter of 2016 ($46 million), lower activity in Other Upstream Operations ($38 million), unrealized risk management gains on power financial derivative contracts ($28 million) and the lower U.S./Canadian dollar exchange rate ($25 million);

partially offset by:

 

   

Higher activity primarily in Duvernay and Permian ($24 million).

2015 versus 2014

Transportation and processing expense decreased $244 million compared to 2014 primarily due to:

 

   

The sale of the Bighorn assets in the third quarter of 2014 ($117 million), the lower U.S./Canadian dollar exchange rate ($111 million), the sale of certain assets in Wheatland in the first quarter of 2015 ($44 million), the sales of the Jonah and East Texas properties in the second quarter of 2014 ($43 million), the sale of the Haynesville natural gas assets in the fourth quarter of 2015 ($28 million) and shut-in production at Deep Panuke as a result of the implementation of a seasonal operating strategy in 2015 and a higher water production rate ($21 million);

partially offset by:

 

   

Higher activity in the Core Assets, primarily in Montney, and the acquisitions of Eagle Ford and the Permian assets in the second and fourth quarters of 2014, respectively ($136 million).

Operating

Operating expense includes costs paid by Encana to operate oil and gas properties in which the Company has a working interest. These costs primarily include labour, service contract fees, chemicals and fuel.

 

     $ millions             $/BOE  
       2016           2015          2014             2016           2015          2014     

Canadian Operations

   $ 152        $ 152        $ 274           $ 2.16        $ 2.17        $ 2.73     

USA Operations

     394          519          326           $ 6.44        $ 6.55        $ 4.18     

Upstream Operating Expense (1)

             546                  671                  600           $         4.16        $         4.50        $         3.37     

Market Optimization

     35          33          39                

Corporate and Other

     17          19          28                

Total

   $ 598        $ 723        $ 667                                        
(1)

2016 Upstream Operating Expense per BOE includes long-term incentive costs of $0.29/BOE (2015 – a recovery of $0.04/BOE; 2014 – costs of $0.06/BOE).

2016 versus 2015

Operating expense decreased $125 million compared to 2015 primarily due to:

 

   

Cost-saving initiatives ($101 million), lower activity primarily in Other Upstream Operations ($42 million), the sale of the Haynesville natural gas assets in the fourth quarter of 2015 ($28 million) and the sales of the DJ Basin and Gordondale assets in the third quarter of 2016 ($23 million);

partially offset by:

 

   

Higher long-term incentive costs resulting from the increase in Encana’s share price ($55 million). Further information on Encana’s long-term incentives can be found in Note 21 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

 

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2015 versus 2014

Operating expense increased $56 million compared to 2014 primarily due to:

 

   

The acquisitions of Eagle Ford and the Permian assets in the second and fourth quarters of 2014, respectively, and successful drilling programs in these plays during 2015 ($243 million);

partially offset by:

 

   

The sale of certain assets in Wheatland in the first quarter of 2015 ($56 million), the lower U.S./Canadian dollar exchange rate ($36 million), the sales of the Jonah and East Texas properties in the second quarter of 2014 ($28 million), lower long-term incentive costs resulting from the decrease in Encana’s share price ($20 million), the sale of the Bighorn assets in the third quarter of 2014 ($19 million) and lower activity primarily in Other Upstream Operations ($12 million).

Purchased Product

Purchased product includes purchases of natural gas, oil and NGLs from third parties that are used to provide operational flexibility and cost mitigation for transportation commitments, product type, delivery points and customer diversification.

 

    $ millions  
     2016        2015        2014    

Market Optimization

  $         586         $         323         $       1,191     

2016 versus 2015

Purchased product expense increased $263 million compared to 2015 primarily due to:

 

   

Higher third-party volumes purchased for optimization activities ($322 million), partially offset by lower commodity prices ($59 million).

2015 versus 2014

Purchased product expense decreased $868 million compared to 2014 primarily due to:

 

   

Lower third-party volumes related to the Company’s 2014 divestiture activities ($583 million) and lower commodity prices ($285 million).

Depreciation, Depletion & Amortization

Proved properties within each country cost centre are depleted using the unit-of-production method based on proved reserves as discussed in Note 1 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K. Depletion rates are impacted by fluctuations in 12-month average trailing prices which can affect proved reserves volumes. Impairments, acquisitions, divestitures and foreign exchange rates can also impact the depletion rates. Additional information can be found in the Critical Accounting Estimates section of this MD&A under Upstream Assets and Reserve Estimates. Corporate assets are carried at cost and depreciated on a straight-line basis over the estimated service lives of the assets.

 

    $ millions            $/BOE  
     2016        2015       2014              2016        2015       2014    

Canadian Operations

  $         260        $ 305        $ 625           $       3.77        $ 4.39        $ 6.40     

USA Operations

    523          1,088          992           $ 8.68        $       13.66        $       12.85     

Upstream DD&A

    783          1,393          1,617           $ 6.06        $ 9.31        $ 9.25     

Market Optimization

    -          -          4              

Corporate and Other

    76          95          124              

Total

  $ 859        $       1,488        $       1,745                                      

 

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2016 versus 2015

DD&A decreased $629 million compared to 2015 primarily due to:

 

   

Lower depletion rates in the Canadian and USA Operations ($334 million), lower production volumes in the USA Operations ($245 million) and the lower U.S./Canadian dollar exchange rate ($17 million).

The depletion rate decreased $3.25 per BOE compared to 2015 primarily due to:

 

   

Ceiling test impairments recognized in the first six months of 2016 in the Canadian and USA Operations and ceiling test impairments recognized in 2015 in the USA Operations, the sale of the DJ Basin assets in the third quarter of 2016, the sale of the Haynesville natural gas assets in the fourth quarter of 2015, the sale of certain assets in Wheatland in the first quarter of 2015 and the lower U.S./Canadian dollar exchange rate.

2015 versus 2014

DD&A decreased $257 million compared to 2014 primarily due to:

 

   

Lower production volumes ($161 million) and a lower depletion rate in the Canadian Operations ($88 million), and the lower U.S./Canadian dollar exchange rate ($101 million);

partially offset by:

 

   

A higher depletion rate ($54 million) and higher production volumes in the USA Operations ($30 million).

The depletion rate increased $0.06 per BOE compared to 2014 primarily due to:

 

   

The acquisitions of Eagle Ford and the Permian assets in the second and fourth quarters of 2014, respectively;

partially offset by:

 

   

Ceiling test impairments recognized in the first nine months of 2015 in the USA Operations, the sales of the Haynesville natural gas assets and Jonah properties in the fourth quarter of 2015 and second quarter of 2014, respectively, the sales of the Bighorn assets and the Company’s investment in PrairieSky in the third quarter of 2014 and the lower U.S./Canadian dollar exchange rate.

Impairments

Under full cost accounting, the carrying amount of Encana’s natural gas and oil properties within each country cost centre is subject to a ceiling test at the end of each quarter. Ceiling test impairments are recognized when the capitalized costs, net of accumulated depletion and the related deferred income taxes, exceed the sum of the estimated after-tax future net cash flows from proved reserves as calculated under SEC requirements using the 12-month average trailing prices and discounted at 10 percent.

 

    $ millions  
     2016         2015      2014  

Canadian Operations

  $ 493         $ -       $ -   

USA Operations

    903           6,473         -   

Total

  $     1,396         $     6,473       $               -   

Ceiling test impairments in the table above primarily resulted from the decline in the 12-month average trailing prices, which reduced the Canadian and USA Operations proved reserves volumes and values as calculated under SEC requirements.

 

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The 12-month average trailing prices used in the ceiling test calculations were based on the benchmark prices below. The benchmark prices were adjusted for basis differentials to determine local reference prices, transportation costs and tariffs, heat content and quality.

 

     Natural Gas             Oil  
     

Henry Hub

($/MMBtu)

    

AECO

(C$/MMBtu)

           

WTI

($/bbl)

    

Edmonton

Light Sweet

(C$/bbl)

 

12-Month Average Trailing Reserves Pricing (1)

              

2016

     2.49        2.17           42.75        52.21  

2015

     2.58        2.69           50.28        58.82  

2014

     4.34        4.63                 94.99        96.40  
(1)

All prices were held constant in all future years when estimating net revenues and reserves.

Future ceiling test impairments are difficult to reasonably predict and depend on commodity prices, as well as changes to reserves estimates, future development costs, capitalized costs, unproved property costs and acquisitions. Proceeds received from upstream divestitures are generally deducted from the Company’s capitalized costs and can reduce the likelihood of ceiling test impairments.

The Company has calculated the estimated effects that certain commodity price changes may have had on its ceiling test impairments using the average of the price on the first day of each month from the most recent nine months ended December 31, 2016 and commodity futures prices for the three months ended March 31, 2017 of $47.87 per bbl for WTI, C$58.65 per bbl for Edmonton Light Sweet, $2.92 per MMBtu for Henry Hub, and C$2.57 per MMBtu for AECO. Based on these estimated prices, while holding all other inputs and assumptions in the ceiling test constant, no additional impairments would have been recognized at December 31, 2016 for the Canadian and USA Operations. Due to uncertainties in estimating proved reserves, the resulting implications may not be indicative of Encana’s future development plans, operating or financial results.

The Company believes that the discounted after-tax future net cash flows from proved reserves required to be used in the ceiling test calculation are not indicative of the fair market value of Encana’s natural gas and oil properties or the future net cash flows expected to be generated from such properties. The discounted after-tax future net cash flows do not consider the fair market value of unamortized unproved properties, or probable or possible natural gas and liquids reserves. In addition, there is no consideration given to the effect of future changes in commodity prices. Encana manages its business using estimates of reserves and resources based on forecast prices and costs. Additional information on the ceiling test calculation can be found in the Critical Accounting Estimates section of this MD&A under Upstream Assets and Reserve Estimates.

Administrative

Administrative expense represents costs associated with corporate functions provided by Encana staff in the Calgary and Denver offices. Costs primarily include salaries and benefits, general office, information technology, restructuring and long-term incentive costs.

 

      2016         2015      2014  

Administrative ($ millions)

   $       309        $ 275      $ 327  

Administrative ($/BOE) (1)

   $ 2.40        $       1.86      $       1.87  
(1)

2016 Administrative expense per BOE includes long-term incentive costs and restructuring costs of $0.93/BOE (2015 – $0.36/BOE; 2014 – $0.35/BOE).

2016 versus 2015

Administrative expense in 2016 increased $34 million from 2015 primarily due to long-term incentive costs resulting from the increase in Encana’s share price ($99 million), partially offset by lower restructuring costs ($30 million), lower salaries and benefits as a result of a lower headcount ($13 million), lower office costs ($12 million) and the lower U.S./Canadian dollar exchange rate ($7 million).

 

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During the first quarter of 2016, Encana completed workforce reductions announced in February 2016 to better align staffing levels and the organizational structure with its reduced capital spending program as a result of the low commodity price environment. Encana incurred restructuring costs of $34 million during 2016 compared to $64 million in 2015. Excluding long-term incentive costs and restructuring costs, administrative expense was $1.47 per BOE in 2016 compared to $1.50 per BOE in 2015. Further information on restructuring costs can be found in Note 20 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

2015 versus 2014

Administrative expense in 2015 decreased $52 million from 2014 primarily due to the lower U.S./Canadian dollar exchange rate ($24 million), lower salaries and benefits as a result of lower headcount ($18 million) and lower long-term incentive costs resulting from the decrease in Encana’s share price ($16 million), partially offset by higher restructuring costs ($8 million).

During the second quarter of 2015, Encana revised its plans to align the organizational structure in continued support of the Company’s strategy, which resulted in restructuring costs of $62 million in 2015. Restructuring costs attributable to workforce reductions associated with the 2013 restructuring were $2 million in 2015. Excluding long-term incentive costs and restructuring costs, administrative expense was $1.50 per BOE in 2015 compared to $1.52 per BOE in 2014.

Other (Income) Expenses

 

 

     $ millions  
      2016         2015        2014    

Interest

   $        397         $ 614         $ 654     

Foreign exchange (gain) loss, net

     (210)          1,082           403     

(Gain) loss on divestitures, net

     (390)          (14)          (3,426)    

Other (gains) losses, net

     (58)          27           71     

Total Other (Income) Expenses

   $ (261)        $       1,709         $       (2,298)    

Interest

Interest expense primarily includes interest on Encana’s long-term debt arising from U.S. dollar denominated unsecured notes and balances which are drawn on the Company’s credit facilities. Encana also incurs interest on the Company’s long-term obligation for The Bow office building and capital leases.

2016 versus 2015

Interest expense in 2016 decreased $217 million from 2015 primarily due to a one-time payment of $165 million in the second quarter of 2015 associated with the April 2015 early redemptions of the Company’s $700 million 5.90 percent notes due December 1, 2017 and its C$750 million 5.80 percent medium-term notes due January 18, 2018 and lower interest on debt following these redemptions, as well as the early retirement of long-term debt in March 2016 as discussed in the Liquidity and Capital Resources section of this MD&A.

2015 versus 2014

Interest expense in 2015 decreased $40 million from 2014 primarily due to lower interest on debt following the April 2015 early debt redemptions. Interest expense was also impacted by a one-time payment of $165 million associated with the April 2015 redemptions compared to a $125 million one-time outlay in 2014 associated with the early redemption of senior notes assumed in conjunction with the acquisition of Athlon Energy Inc. (“Athlon”).

 

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Foreign Exchange (Gain) Loss, Net

Foreign exchange gains and losses result from the impact of fluctuations in the Canadian to U.S. dollar exchange rate. Additional information on foreign exchange rates and the effects of foreign exchange rate changes can be found in Items 6 and 7A of this Annual Report on Form 10-K.

2016 versus 2015

In 2016, Encana recorded a foreign exchange gain compared to a foreign exchange loss in 2015 primarily due to foreign exchange gains on the translation of U.S. dollar debt issued from Canada compared to losses in 2015 ($884 million) and gains on foreign exchange settlements compared to losses in 2015 ($426 million).

2015 versus 2014

In 2015, Encana recorded higher foreign exchange losses on settlements ($330 million) and on the translation of U.S. dollar debt issued from Canada compared to 2014 ($298 million).

(Gain) Loss on Divestitures, Net

Amounts received from the Company’s divestiture transactions are deducted from the respective Canadian and U.S. full cost pools, except for divestitures that result in a significant alteration between capitalized costs and proved reserves in a country cost centre, in which case a gain or loss is recognized. Additional information on gains on divestitures can be found in Note 4 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

2016

Gain on divestitures in 2016 primarily includes the gain on the sale of the Gordondale assets of approximately $394 million.

2015

Gain on divestitures in 2015 primarily included a gain on the sale of the Encana Place office building located in Calgary of approximately $12 million.

2014

Gain on divestitures in 2014 primarily included the impact of the sales of Encana’s investment in PrairieSky of approximately $2,094 million, the Bighorn assets of approximately $1,014 million and the Jonah properties of approximately $209 million.

Other (Gains) Losses, Net

Other (gains) losses, net primarily includes other non-recurring revenues or expenses, reclamation charges relating to decommissioned assets and earnings/losses from equity investments.

2016

Other gains in 2016 primarily includes a gain of $89 million on the early retirement of long-term debt as discussed in the Liquidity and Capital Resources section of this MD&A, partially offset by a one-time third party payment relating to a previously divested asset of $20 million and reclamation charges relating to decommissioned assets of $7 million.

2015

Other losses in 2015 primarily included reclamation charges relating to decommissioned assets of $22 million.

 

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2014

Other losses in 2014 primarily included transaction costs of $40 million associated with the acquisitions of Athlon and Eagle Ford and reclamation charges relating to decommissioned assets of $27 million.

Income Tax

 

 

     $ millions  
      2016      2015     2014    

Current Income Tax Expense (Recovery)

   $ (78    $ (34   $ 243     

Deferred Income Tax Expense (Recovery)

     (598      (2,811     960     

Income Tax Expense (Recovery)

   $ (676    $ (2,845   $ 1,203     

Effective Tax Rate

           41.7%               35.5%              26.0%     

Income Tax Expense (Recovery)

2016 versus 2015

Total income tax recovery decreased $2,169 million compared to 2015 primarily due to:

 

   

Lower non-cash ceiling test impairments and foreign exchange gains;

partially offset by:

 

   

An increase to the valuation allowance recorded against the deferred tax assets in respect of U.S. foreign tax credits and U.S. charitable donations totaling $121 million.

Current income tax recoveries in 2016 and 2015 were primarily due to amounts recorded in respect of prior periods.

2015 versus 2014

Total income tax in 2015 was a recovery of $2,845 million compared to an expense of $1,203 million in 2014 primarily due to:

 

   

Lower net earnings before tax mainly resulting from non-cash ceiling test impairments recognized in 2015, and higher gains on divestitures and unrealized gains on risk management recorded in 2014.

Current income tax expense in 2014 was primarily due to taxes incurred on divestitures.

Effective Tax Rate

Encana’s annual effective tax rate is impacted by earnings, income tax related to foreign operations, the effect of legislative changes, non-taxable capital gains and losses, tax differences on divestitures and transactions, and partnership tax allocations in excess of funding. The 2016 and 2015 effective tax rates exceeded the Canadian statutory tax rate of 27 percent primarily due to the impact of the foreign jurisdictional tax rates relative to the Canadian statutory tax rate applied to jurisdictional earnings.

Tax interpretations, regulations and legislation in the various jurisdictions in which the Company and its subsidiaries operate are subject to change. As a result, there are tax matters under review. The Company believes that the provision for taxes is adequate.

Additional information on income taxes can be found in Note 7 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

 

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Liquidity and Capital Resources

Sources of Liquidity

 

The Company has the flexibility to access cash equivalents and a range of funding alternatives at competitive rates through committed revolving bank credit facilities as well as debt and equity capital markets. Encana closely monitors the accessibility of cost-effective credit and ensures that sufficient liquidity is in place to fund capital expenditures and dividend payments. In addition, the Company may use cash and cash equivalents, cash from operating activities, or proceeds from asset divestitures and share issuances to fund its operations and service debt repayments. At December 31, 2016, $179 million in cash and cash equivalents was held by U.S. subsidiaries. The cash held by U.S. subsidiaries is accessible and may be subject to additional Canadian income taxes and U.S. withholding taxes if repatriated.

The Company’s capital structure consists of total shareholders’ equity plus long-term debt, including the current portion. The Company’s objectives when managing its capital structure are to maintain financial flexibility to preserve Encana’s access to capital markets and its ability to meet financial obligations and finance internally generated growth, as well as potential acquisitions. Encana has a long-standing practice of maintaining capital discipline and strategically managing its capital structure by adjusting capital spending, adjusting dividends paid to shareholders, issuing new shares, issuing new debt or repaying existing debt.

 

($ millions, except as indicated)    2016           2015      2014      

Cash and Cash Equivalents

   $ 834           $ 271       $ 338       

Available Credit Facility – Encana (1)

                     3,000                             2,350                         1,740       

Available Credit Facility – U.S. Subsidiary (1)

     1,500             1,500         1,000       

Total Liquidity

     5,334             4,121         3,078       

Long-Term Debt (2)

     4,198             5,333         7,301       

Total Shareholders’ Equity

     6,126             6,167         9,685       

Debt to Capitalization (%) (3)

     41             46         43       

Debt to Adjusted Capitalization (%) (4)

     23             28         30       
(1)

Collectively, the “Credit Facilities”.

(2)

2015 and 2014 have been restated due to the adoption of ASU 2015-03, “Simplifying the Presentation of Debt Issuance Costs”, as discussed below under Financing Activities and in Note 1 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

(3)

Calculated as long-term debt, including the current portion, divided by shareholders’ equity plus long-term debt, including the current portion.

(4)

A non-GAAP measure which is defined in the Non-GAAP Measures section of this MD&A.

Encana is currently in compliance with, and expects that it will continue to be in compliance with, all financial covenants under the Credit Facilities. Management monitors Debt to Adjusted Capitalization, which is a non-GAAP measure defined in the Non-GAAP Measures section of this MD&A, as a proxy for Encana’s financial covenant under the Credit Facilities, which requires debt to adjusted capitalization to be less than 60 percent. The definitions used in the covenant under the Credit Facilities adjust capitalization for cumulative historical ceiling test impairments that were recorded as at December 31, 2011 in conjunction with the Company’s January 1, 2012 adoption of U.S. GAAP. As shown in the table above, Debt to Adjusted Capitalization has been trending downwards during the past three years as a result of Encana’s efforts to strengthen its balance sheet through debt repayments. Additional information on financial covenants can be found in Note 13 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

 

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Sources and Uses of Cash

 

During 2016, Encana primarily generated cash through operating activities, divestitures and a share offering. Proceeds from the divestitures and a portion of the proceeds from the share offering were used to repay indebtedness under the Credit Facilities.

 

($ millions)    Activity Type        2016        2015         2014     

Sources of Cash and Cash Equivalents

           

Cash from operating activities

     Operating         $ 625         $ 1,681          $ 2,667      

Proceeds from divestitures

     Investing           1,262           1,908            4,345      

Proceeds from sale of investment in PrairieSky

     Investing           -           -            2,172      

Proceeds from sale of noncontrolling interest

     Financing           -           -            1,462      

Net issuance of revolving long-term debt

     Financing           -           -            942      

Issuance of common shares, net of offering costs

     Financing           1,129           1,088            -      

Other

     Investing           51           71            321      
                3,067                   4,748                    11,909      

Uses of Cash and Cash Equivalents

           

Capital expenditures

     Investing           1,132           2,232            2,526      

Acquisitions

     Investing           210           70            3,016      

Corporate acquisition

     Investing           -           -            5,962      

Net repayment of revolving long-term debt

     Financing           650           627            -      

Repayment of long-term debt

     Financing           400           1,302            2,152      

Dividends on common shares

     Financing           51           152            202      

Other

     Investing/Financing           66           403            152      
        2,509           4,786            14,010      

Foreign Exchange Gain (Loss) on Cash and Cash Equivalents Held in Foreign Currency

              5           (29)           (127)     

Increase (Decrease) in Cash and Cash Equivalents

            $ 563         $ (67)         $ (2,228)     

Operating Activities

Cash from operating activities can be significantly impacted by fluctuations in commodity prices, operating costs and changes in production volumes. During 2016, cash from operating activities was impacted by the depressed commodity price environment; however, Encana offset some of this impact by reducing cash operating costs, administrative expense and interest expense as well as by executing a successful commodity price mitigation program. Encana expects it will continue to meet the payment terms of its suppliers. Non-GAAP Cash Flow was $838 million in 2016 and was impacted mainly by the items affecting cash from operating activities. The primary items affecting cash from operating activities are discussed below and in the Results of Operations section of this MD&A. Additional information on Non-GAAP Cash Flow can be found in the Non-GAAP Measures section of this MD&A.

2016 versus 2015

Net cash from operating activities in 2016 decreased $1,056 million from 2015 primarily due to:

 

   

Lower realized gains on risk management included in revenues ($556 million), lower realized commodity prices ($464 million), lower production volumes ($443 million) and changes in non-cash working capital ($449 million);

partially offset by:

 

   

Lower transportation and processing expense ($351 million), lower operating expenses and administrative expense, excluding non-cash long-term incentive costs ($240 million), lower interest on long-term debt ($201 million), lower production, mineral and other taxes ($45 million) and a higher current tax recovery ($44 million).

 

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2015 versus 2014

Net cash from operating activities in 2015 decreased $986 million from 2014 primarily due to:

 

   

Lower realized commodity prices ($2,233 million) and lower natural gas production volumes ($1,391 million);

partially offset by:

 

   

Realized gains on risk management included in revenues ($1,001 million), higher liquids production volumes ($736 million), a current tax recovery ($277 million), changes in non-cash working capital ($271 million) and lower transportation and processing expense ($244 million).

Investing Activities

Capital expenditures, acquisitions and divestitures have been Encana’s primary investing activities over the past three years. Capital expenditures have decreased as Encana focused its portfolio on its Core Assets and reduced its capital spending program in response to lower commodity prices. In addition, Encana made some significant acquisitions during 2014 which drove investing activities during that year. Capital expenditures and acquisition and divestiture activity are summarized in Notes 2, 3 and 4 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

2016

Net cash used in investing activities in 2016 was $29 million primarily due to capital expenditures and acquisitions, partially offset by proceeds from divestitures. Capital expenditures in 2016 decreased $1,100 million compared to 2015 due to a reduced capital program and cost savings initiatives implemented in 2016. Capital expenditures in the Core Assets totaled $1,094 million, representing 97 percent of total capital expenditures, and decreased $756 million compared to 2015, primarily in Eagle Ford ($359 million), Permian ($287 million) and Duvernay ($92 million). Capital expenditures exceeded cash from operating activities by $507 million and the difference was funded using proceeds from divestitures.

Acquisitions in 2016 were $210 million, which primarily included $135 million for the purchase of natural gas gathering and water handling assets in Piceance located in Colorado. Acquisitions in 2016 also included the purchase of land and property in Eagle Ford with oil and liquids rich potential.

Divestitures in 2016 were $1,262 million, which primarily included the following:

 

   

Proceeds of approximately $633 million, after closing and other adjustments, for the sale of the DJ Basin assets located in northern Colorado, comprising approximately 51,000 net acres;

 

   

Proceeds of approximately C$600 million ($455 million), after closing adjustments, for the sale of the Gordondale assets which included approximately 54,200 net acres of land and associated infrastructure in Montney located in northwestern Alberta; and

 

   

Proceeds of approximately $135 million from the sale of certain natural gas leasehold interests in Piceance located in Colorado.

2015

Net cash used in investing activities in 2015 was $665 million primarily due to capital expenditures, partially offset by proceeds from divestitures. Capital expenditures during 2015 were $2,232 million, of which $1,850 million or 83 percent, was directed to the Core Assets. Capital expenditures exceeded cash from operating activities by $551 million with the difference being funded using proceeds from divestitures.

 

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Divestitures in 2015 were $1,908 million, which primarily included transactions summarized in the table below.

 

Transaction    Location      Closing Date     

Cash Inflows  

($ millions)  

 

Divestitures

        

Sale of certain assets in Wheatland

     Alberta         January 15, 2015       $         467     

Sale of certain natural gas gathering and compression assets in Montney (1)

     British Columbia         March 31, 2015         355     

Sale of Haynesville natural gas assets

     Louisiana         November 12, 2015         769     

 

(1)

Sold to Veresen Midstream Limited Partnership (“VMLP”). Further information regarding VMLP can be found in Note 19 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

2014

In 2014, Encana was actively implementing its new strategy under the Company’s new CEO, Doug Suttles and undertook several significant transactions which impacted investing activities. Net cash used in investing activities in 2014 was $4,729 million primarily due to the acquisitions of Eagle Ford and the Permian assets which were primarily funded with cash on hand resulting from divestiture transactions in 2014 as summarized in the table below.

 

Transaction    Location      Closing Date     

Cash Inflows/  

Outflows  

($ millions)  

 

Divestitures

        

Divestiture of Encana’s investment in PrairieSky (1)

     Alberta         September 26, 2014       $         2,172     

Sale of Bighorn assets

     Alberta         September 30, 2014         1,725     

Sale of Jonah properties

     Wyoming         May 12, 2014         1,636     

Sale of East Texas properties

     Texas         June 19, 2014         495     

Acquisitions

        

Acquisition of properties in the Eagle Ford shale formation

     Texas         June 20, 2014       $         2,923     

Acquisition of Athlon Energy Inc. with assets in the Permian Basin (1)

     Texas         November 13, 2014         5,962     

 

(1)

Transactions involved the disposition or acquisition of common shares.

Financing Activities

Net cash used in financing activities over the past three years has been impacted by Encana’s strategy to enhance liquidity and strengthen its balance sheet through debt repayments and common share offerings. The Company has paid dividends each of the past three years, though the dividend paid per common share decreased in 2016.

2016 versus 2015

Net cash used in financing activities in 2016 decreased $1,016 million from 2015. The decrease was primarily due to a lower repayment of long-term debt ($902 million), partially offset by lower cash dividend payments ($101 million).

2015 versus 2014

Net cash used in financing activities in 2015 increased $1,015 million from 2014 primarily due to a net repayment of revolving long-term debt in 2015 compared with a net issuance in 2014 ($1,569 million), and proceeds from the sale of the noncontrolling interest in PrairieSky in 2014 ($1,462 million), partially offset by proceeds from the issuance of common shares ($1,088 million) and lower long-term debt repayments in 2015 ($850 million).

The transactions affecting the changes in financing activities are discussed in more detail below.

2016

Encana’s long-term debt totaled $4,198 million at December 31, 2016 and there was no current portion outstanding. At December 31, 2016, Encana has no long-term debt maturities until 2019 and over 73 percent of the Company’s debt is not due until 2030 and beyond.

 

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In March 2016, the Company completed tender offers (collectively, the “Tender Offers”) for certain of the Company’s outstanding senior notes (collectively, the “Notes”) and accepted for purchase $489 million aggregate principal amount of Notes. The Company paid an aggregate amount of $406 million, including accrued and unpaid interest of $6 million and an early tender premium of $14 million, which resulted in the recognition of a net gain on the early debt retirement of $89 million, before tax. The Company used cash on hand and borrowings under the Credit Facilities to fund the Tender Offers. Further information on the Tender Offers can be found in Note 13 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

During the first quarter of 2016, Encana received a downgrade of its credit rating to below investment grade by Moody’s Investors Service, along with confirmed investment grade credit ratings by Standard & Poor’s Ratings Services, DBRS Limited and Fitch Ratings, Inc. As a result of the split ratings, the Company no longer has access to its U.S. Commercial Paper (“U.S. CP”) program and there was a nominal increase in the cost of short-term borrowings on the Credit Facilities. The Company continues to have full access to the Credit Facilities, which remain committed through July 2020. The split ratings have not impacted the Company’s ability to fund its operations, development activities or capital program.

On August 24, 2016, Encana filed shelf prospectuses in Canada and the U.S., whereby the Company may issue from time to time up to $6.0 billion, or the equivalent in foreign currencies, of debt securities, common shares, Class A preferred shares, subscription receipts, warrants, units, share purchase contracts and share purchase units in Canada and/or the U.S. (collectively, the “2016 Shelf Prospectuses”). On September 19, 2016, the Company filed prospectus supplements to the 2016 Shelf Prospectuses for a public offering (the “2016 Share Offering”) of 107,000,000 common shares of Encana at a price of $9.35 per common share, as well as an over-allotment option (the “Over-Allotment Option”) granted to the underwriters to purchase up to an additional 16,050,000 common shares, pursuant to an underwriting agreement. The 2016 Share Offering was completed on September 23, 2016 for gross proceeds to Encana of approximately $1.0 billion. After deducting underwriters’ fees and costs of the 2016 Share Offering, the net cash proceeds received were approximately $981 million. The Over-Allotment Option was subsequently exercised in full on October 4, 2016 for additional gross proceeds of approximately $150 million, bringing the aggregate gross proceeds to approximately $1.15 billion ($1.13 billion of net cash proceeds). At December 31, 2016, approximately $4.8 billion, or the equivalent in foreign currencies, remained accessible under the 2016 Shelf Prospectuses, the availability of which is dependent upon certain eligibility requirements and market conditions.

During the third quarter of 2016, Encana used a portion of the net proceeds from the 2016 Share Offering and divestitures to repay indebtedness under the Credit Facilities. At December 31, 2016, Encana had no outstanding balance under the Credit Facilities.

2015

Encana’s long-term debt totaled $5,333 million at December 31, 2015 and there was no current portion outstanding. The long-term debt balances reflect Encana’s January 1, 2016 retrospective adoption of ASU 2015-03, “Simplifying the Presentation of Debt Issuance Costs”, as described in Notes 1 and 13 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

During 2015, Encana implemented a U.S. CP program which was fully supported by the Credit Facilities and used proceeds from the U.S. CP program and cash on hand to repay outstanding LIBOR loan balances of approximately $1,277 million. At December 31, 2015, Encana had outstanding balances under the Credit Facilities which reflected $440 million of U.S. CP issuances and $210 million of principal obligations related to LIBOR loans.

During 2015, the Company had access to a shelf prospectus which was filed in June 2014 (the “2014 Shelf Prospectus”). In March 2015, the Company filed a prospectus supplement (the “2015 Share Offering”) to the 2014 Shelf Prospectus and issued 98,458,975 common shares of Encana, including common shares issued under

 

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an over-allotment option, for aggregate gross proceeds of approximately C$1.44 billion ($1.13 billion). After deducting underwriters’ fees and costs of the 2015 Share Offering, the net proceeds received were approximately C$1.39 billion ($1.09 billion). The 2014 Shelf Prospectus expired in July 2016.

2014

Encana’s long-term debt totaled $7,301 million at December 31, 2014 and there was no current portion outstanding. The long-term debt balance reflects Encana’s January 1, 2016 retrospective adoption of ASU 2015-03 as described above, which resulted in a $39 million decrease in Long-Term Debt as at December 31, 2014.

As a result of the acquisition of Athlon in November 2014, Encana assumed $500 million 7.375 percent senior notes due April 15, 2021 and $650 million 6.00 percent senior notes due May 1, 2022. In December 2014, Encana completed the redemption of these senior notes using proceeds from the Credit Facilities, resulting in an outstanding balance of $1,277 million under the Credit Facilities at December 31, 2014, which reflected principal obligations related to LIBOR loans. In conjunction with the acquisition, Encana repaid and terminated Athlon’s credit facility with indebtedness outstanding of $335 million. During 2014, Encana recorded net issuances of $942 million from the Credit Facilities.

During the second quarter of 2014, PrairieSky acquired Encana’s royalty business with assets in Clearwater located predominantly in central and southern Alberta. Subsequently, Encana completed the initial public offering of 59.8 common shares of PrairieSky for aggregate gross proceeds of approximately C$1.67 billion ($1.54 billion).

In the first half of 2014, Encana completed a cash tender offer and consent solicitation for the Company’s $1.0 billion 5.80 percent notes with a maturity date of May 1, 2014 and the redemption of all notes not tendered in the tender offer.

Dividends

Encana pays quarterly dividends to shareholders at the discretion of the Board of Directors. Common shares issued in the 2016 Share Offering and 2015 Share Offering were not eligible to receive the dividends paid on September 30, 2016 and March 31, 2015, respectively.

 

($ millions, except as indicated)    2016        2015      2014  

Dividend Payments

   $             52        $             225      $             207  

Dividend Payments ($/share)

     0.06          0.28        0.28  

During 2016, the Company reset its annualized dividend to $0.06 per share to better align the dividend with Encana’s cash flows and provide flexibility to use available cash for investment in the Company’s high quality portfolio.

The dividends paid in 2016 included $1 million (2015 – $73 million; 2014 – $5 million) in common shares issued in lieu of cash dividends under Encana’s Dividend Reinvestment Plan (“DRIP”). The common shares issued under the DRIP decreased in 2016 primarily as a result of the lower dividend paid per share in the 2016 as well as Encana’s December 14, 2015 announcement that any dividends subsequent to December 31, 2015 distributed to shareholders participating in the DRIP would be issued from its treasury without a discount to the average market price of the common shares. The common shares issued under the DRIP increased in 2015 compared to 2014 primarily as a result of Encana’s February 25, 2015 announcement that, effective with the dividend payable on March 31, 2015, any dividends in conjunction with the DRIP would be issued from its treasury with a two percent discount to the average market price of the common shares.

On February 15, 2017, the Board of Directors declared a dividend of $0.015 per share payable on March 31, 2017 to common shareholders of record as of March 15, 2017.

 

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Off-Balance Sheet Arrangements

The Company may enter into off-balance sheet arrangements and transactions that can give rise to material off-balance sheet obligations. Encana’s material off-balance sheet arrangements include transportation and processing agreements, drilling rig commitments, and operating leases, as outlined in the Contractual Obligations table below, as well as undrawn letters of credit, all of which are customary agreements in the oil and gas industry. Other than the items discussed above, there are no other transactions, arrangements, or relationships with unconsolidated entities or persons that are reasonably likely to materially affect the Company’s liquidity or the availability of, or requirements for, capital resources.

Contractual Obligations

Contractual obligations arising from long-term debt, capital leases, risk management liabilities, asset retirement obligations and The Bow office building are recognized on the Company’s Consolidated Balance Sheet. The following table outlines the Company’s obligations and commitments at December 31, 2016:

 

     Expected Future Payments  
($ millions)    2017     2018 - 2019     2020 - 2021     Thereafter         Total     

Long-Term Debt

   $ -     $ 500     $ 600     $ 3,111         $ 4,211     

Interest Payments on Long-Term Debt

     267       517       470       2,757           4,011     

Capital Leases

     59       129       136       39           363     

Interest Payments on Capital Leases

     39       69       50       7           165     

Risk Management Liabilities

     254       35       -       -           289     

Asset Retirement Obligation (1)

     35       114       249       1,901           2,299     

The Bow Office Building

     10       23       27       475           535     

Interest Payments on The Bow Office Building

     61       120       118       807           1,106     

Obligations

     725       1,507       1,650       9,097           12,979     

Transportation and Processing

     508       1,143       1,056       2,566           5,273     

Drilling and Field Services

     159       99       25       -           283     

Operating Leases

     25       35       6       16           82     

Commitments (1)

     692       1,277       1,087       2,582           5,638     

Total Contractual Obligations

   $         1,417     $         2,784     $         2,737     $         11,679         $         18,617     

The Bow Office Building Sublease Recoveries (1)

   $ (34   $ (70   $ (70   $ (632)        $ (806)    

 

(1)

Undiscounted.

Interest Payments on Long-Term Debt, Capital Leases and The Bow Office Building represent scheduled cash payments on the respective obligations. Further information can be found in Notes 13 and 14 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

Capital Leases relates to an office building and the obligation related to the Deep Panuke Production Field Centre. Further information can be found in Note 14 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

Risk Management Liabilities represents Encana’s net liability position with counterparties. Further information can be found in Note 24 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

Asset Retirement Obligation represents estimated costs arising from the obligation to fund the disposal of long-lived assets upon their abandonment. The majority of Encana’s asset retirement obligations relate to the plugging of wells and related abandonment of oil and gas properties. Revisions to estimated retirement obligations can result from changes in regulatory requirements, changes in retirement cost estimates, revisions to estimated

 

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inflation rates and estimated timing of abandonment. Further information can be found in Note 15 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

The Bow Office Building relates to the 25-year lease agreement with a third party developer that commenced in 2012. Encana has recognized the accumulated construction costs for The Bow office building as an asset with a related liability. At the conclusion of the 25-year term, in 2037, the remaining asset and corresponding liability are expected to be derecognized. Encana has subleased part of The Bow office space to a subsidiary of Cenovus Energy Inc. (“Cenovus”). The Bow Office Building Sublease Recoveries in the table above include the amounts expected to be recovered from Cenovus. Further information can be found in Note 14 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

Transportation and Processing commitments relate to contractual obligations for capacity rights with third-party pipelines and processing facilities. Drilling and Field Services commitments represent minimum future expenditures for drilling, well servicing and equipment commitment rights. Significant development commitments with joint venture partners are partially satisfied by Commitments included in the table above. Operating Leases consist of various building leases used in Encana’s daily operations.

Further to the commitments disclosed above, Encana also has various obligations that become payable if certain events occur including variable interests arising from gathering and compression agreements and guarantees on transportation commitments resulting from completed property divestitures as described in Notes 19 and 24, respectively, to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

In addition, Encana has purchase orders for the purchase of inventory and other goods and services, which typically represent authorization to purchase rather than binding agreements. Encana also has obligations to fund its defined benefit pension and other post-employment benefit plans, as well as unrecognized tax benefits where the settlement is not expected within the next 12 months as described in Notes 22 and 7, respectively, to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

Encana may have potential exposures related to previously divested properties where the purchasers typically assume all obligations to plug, abandon, and decommission the associated wells, structures, and facilities acquired. One or more of the counterparties in these transactions could, either as a result of the severe decline in oil and natural gas prices or other factors related to the historical or future operations of their respective businesses, face financial problems that may have a significant impact on their solvency and ability to continue as a going concern. If a purchaser becomes the subject of a proceeding under relevant insolvency laws or otherwise fails to perform required abandonment obligations, Encana could be required to perform such actions under applicable federal laws and regulations. While the Company believes that the risk of such event occurring is low, the Company could be forced to use available cash to cover the costs of such liabilities and obligations should they arise.

Contingencies

For information on contingencies, refer to Note 26 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

 

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Accounting Policies and Estimates

 

Critical Accounting Estimates

 

The preparation of financial statements in accordance with U.S. GAAP requires management to make informed judgments and estimates that affect the reported amounts of assets, liabilities, revenues, and expenses. For a discussion of the Company’s significant accounting policies refer to Note 1 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K. Changes in facts and circumstances or additional information may result in revised estimates, and actual results may differ from these estimates. Management considers the following to be its most critical accounting estimates that involve judgment. The following discussion outlines the accounting policies and practices involving the use of estimates that are critical to determining Encana’s financial results. Changes in the estimates and assumptions discussed below could materially affect the amount or timing of the financial results of the Company.

 

Description      Judgments and Uncertainties

Upstream Assets and Reserve Estimates

    

As Encana follows full cost accounting for natural gas, oil and NGL activities, reserves estimates are a key input to the Company’s depletion, gain or loss on divestitures and ceiling test impairment calculations. In addition, these reserves are the basis for the Company’s supplemental oil and gas disclosures.

    

Due to the inter-relationship of various judgments made to reserve estimates and the volatile nature of oil and gas prices, it is generally not possible to predict the timing or magnitude of ceiling test impairments.

Encana estimates its proved oil and gas reserves according to the definition of proved reserves provided by the SEC. The Company’s estimates of proved reserves are made using available geological and reservoir data as well as production performance data and must demonstrate with reasonable certainty to be economically producible in future periods from known reservoirs under existing economic conditions, operating methods, government regulations. The estimation of reserves is a subjective process.

    

Revisions to reserve estimates are necessary due to changes in and among other things, development plans, projected future rates of production, the timing of future expenditures, reservoir performance, economic conditions, governmental restrictions as well as changes in the expected recovery associated with infill drilling, all of which are subject to numerous uncertainties and various interpretations. Downward revisions in proved reserves estimates due to changes in reserve estimates may increase depletion expense and may also result in a ceiling test impairment.

Reserves are calculated using an unweighted arithmetic average of commodity prices in effect on the first day of each of the previous 12 months, held flat for the life of the production, except where prices are defined by contractual arrangements.

    

Decreases in prices may result in reductions in certain proved reserves due to reaching economic limits at an earlier projected date and impact earnings through depletion expense and ceiling test impairments.

Encana manages its business using estimates of reserves and resources based on forecast prices and costs as it gives consideration to probable and possible reserves and future changes in commodity prices.

    

Encana believes that the discounted after-tax future net cash flows from proved reserves required to be used in the ceiling test calculation are not indicative of the fair market value of Encana’s natural gas and oil properties or the future net cash flows expected to be generated from such properties.

Business Combinations

    

Encana follows the acquisition method of accounting for business combinations. Assets acquired and liabilities assumed are recognized at the date of acquisition at their respective estimated fair values. Any excess of the purchase price over the fair value amounts assigned to assets and liabilities is recorded as goodwill. Any deficiency of the purchase price over the estimated fair values of the net assets acquired is recorded as a gain in net earnings.

    

The most significant assumptions relate to the estimated fair values assigned to proved and unproved natural gas and crude oil properties. The assumptions made in performing these valuations include discount rates, future commodity prices and costs, the timing of development activities, projections of oil and gas reserves, estimates to abandon and reclaim producing wells and tax amortization benefits available to a market participant. Changes in key assumptions may cause the acquisition accounting to be revised, including the recognition of additional goodwill or discount on acquisition. There is no assurance the underlying assumptions or estimates associated with the valuation will occur as initially expected.

 

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Description      Judgments and Uncertainties

Fair value estimates are determined based on information that existed at the time of the acquisition, utilizing expectations and assumptions that would be available to and made by a market participant. When market-observable prices are not available to value assets and liabilities, the Company may use the cost, income, or market valuation approaches depending on the quality of information available to support management’s assumptions.

    

Estimated fair values assigned to assets acquired can have a significant effect on results of operations in the future through impairments of goodwill. In addition, differences between the future commodity prices used to acquire assets and the historical 12-month average trailing price to calculate ceiling test impairments of upstream assets may impact net earnings.

Goodwill Impairments

    

Goodwill is assessed for impairment at least annually in December, at the reporting unit level which are Encana’s country cost centres. To assess whether goodwill is impaired, the carrying amount of each reporting unit is determined and compared to the fair value of the reporting unit. If the carrying amount of the reporting unit is higher than its related fair value, then goodwill is measured and written down to the reporting unit’s implied fair value of goodwill. The implied fair value of goodwill is determined by deducting the fair value of the reporting unit’s assets and liabilities from the fair value of the reporting unit as if the reporting entity had been acquired in a business combination. Any excess of the carrying value of goodwill over the implied fair value of goodwill is recognized as an impairment and charged to net earnings.

    

The most significant assumptions used to determine a reporting unit’s fair value include estimations of natural gas and crude oil reserves, including both proved reserves and risk-adjusted unproved reserves, estimates of market prices considering forward commodity price curves as of the measurement date, market discount rates and estimates of operating, administrative, and capital costs adjusted for inflation. In addition, management may support fair value estimates determined with comparable companies that are actively traded in the public market, recent comparable asset transactions, and transaction premiums. This would require management to make certain judgments about the selection of comparable companies utilized.

Because quoted market prices for the Company’s reporting units are not available, management applies judgment in determining the estimated fair value of reporting units for purposes of performing goodwill impairment tests. Encana may use a combination of the income and the market valuation approaches.

    

Downward revisions of estimated reserves quantities, increases in future cost estimates, sustained decreases in natural gas or crude oil prices, or divestiture of a significant component of the reporting unit could reduce expected future cash flows and fair value estimates of the reporting units and possibly result in an impairment of goodwill in future periods.

Encana has assessed its goodwill for impairment at December 31, 2016. As Encana has recognized ceiling test impairments in 2016 and 2015, the reporting units’ fair values are substantially in excess of the carrying values and as a result is not at risk of failing step one of the impairment test as at December 31, 2016.

    

Asset Retirement Obligation

    

Asset retirement obligations are those legal obligations where the Company will be required to retire tangible long-lived assets such as producing well sites, offshore production platforms, processing plants, and restoring land or seabed at the end of oil and gas production operations. The fair value of estimated asset retirement obligations is recognized in the Consolidated Balance Sheet when incurred and a reasonable estimate of fair value can be made. The asset retirement cost, equal to the initially estimated fair value of the asset retirement obligation, is capitalized as part of the cost of the related long-lived asset. Changes in the estimated obligation are recognized as a change in the asset retirement obligation and the related asset retirement cost. Actual expenditures incurred are charged against the accumulated asset retirement obligation. Accretion expense is recognized over time as the discounted liability is accreted to its expected settlement value.

    

Asset removal technologies and costs are constantly changing, as are regulatory, political, environmental, safety, and public relations considerations. The asset retirement obligation is estimated by discounting the expected future cash flows of the settlement. The discounted cash flows are based on estimates of such factors as reserves lives, retirement costs, timing of settlements, credit-adjusted risk-free rates and inflation rates. Changes in these estimates impact net earnings through accretion of the asset retirement obligation in addition to depletion of the asset retirement cost included in property, plant and equipment.

 

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Description      Judgments and Uncertainties

Derivative Financial Instruments

    

Encana uses derivative financial instruments to manage its exposure to market risks relating to commodity prices, foreign currency exchange rates and interest rates. The Company’s policy is not to utilize derivative financial instruments for speculative purposes. Realized gains or losses from financial derivatives are recognized in net earnings as the contracts are settled. Unrealized gains and losses are recognized in net earnings at the end of each respective reporting period based on the changes in fair value of the contracts.

    

Encana’s derivative financial instruments primarily relate to commodities including natural gas, oil and power. The most significant assumptions used in determining the fair value to the Company’s commodity derivatives financial instruments include estimates of future commodity prices, implied volatilities of commodity prices, discount rates and estimates of counterparty credit risk. These pricing and discounting variables are sensitive to the period of the contract and market volatility as well as regional price differentials. Changes in these estimates and assumptions can impact net earnings through decreased revenues or increased expenses.

Derivative financial instruments are measured at fair value with changes in fair value recognized in net earnings. Fair value estimates are determined using quoted prices in active markets, inferred based on market prices of similar assets and liabilities or valued using internally developed estimates. The Company may use the various valuation techniques including the discounted cash flow or option valuation models.

    

As Encana has chosen not to elect hedge accounting treatment for the Company’s derivative financial instruments, changes in the fair values of derivative financial instruments can have a significant impact on Encana’s results of operations. Generally, changes in fair values of derivative financial instruments do not impact the Company’s liquidity or capital resources. Settlements of derivative financial instruments do have an impact on the Company’s liquidity and results of operation.

    

Income Taxes

    

Encana follows the liability method of accounting for income taxes. Under this method, deferred income taxes are recorded for the effect of any temporary difference between the accounting and income tax basis of an asset or liability, using the enacted income tax rates and laws expected to apply when the assets are realized and liabilities are settled. Current income taxes are measured at the amount expected to be recoverable from or payable to the taxation authorities based on the income tax rates and laws enacted at the end of the reporting period. The effect of a change in the enacted tax rates or laws is recognized in net earnings in the period of enactment.

    

Tax interpretations, regulations and legislation in the various jurisdictions in which the Company and its subsidiaries operate are subject to change. As such, income taxes are subject to measurement uncertainty and the interpretations can impact net earnings through the income tax expense arising from the changes in deferred income tax assets or liabilities.

Deferred income tax assets are routinely assessed for realizability. If it is more likely than not that deferred tax assets will not be realized, a valuation allowance is recorded to reduce the deferred tax assets.

    

Encana considers available positive and negative evidence when assessing the realizability of deferred tax assets, including historic and expected future taxable earnings, available tax planning strategies and carry forward periods. Numerous judgments and assumptions are inherent in the determination of future taxable income, including factors such as future operating conditions, particularly related to oil and gas prices. As a result, the assumptions used in determining expected future taxable earnings are consistent with those used in the goodwill impairment assessment.

Encana’s interim income tax expense is determined using an estimated annual effective income tax rate applied to year-to-date net earnings before income tax plus the effect of legislative changes and amounts in respect of prior periods.

    

The estimated annual effective income tax rate is impacted by expected annual earnings, statutory rate and other foreign differences, non-taxable capital gains and losses, tax differences on divestitures and transactions, and partnership tax allocations in excess of funding.

 

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Description      Judgments and Uncertainties

Encana recognizes the financial statement effects of a tax position when it is more likely than not, based on the technical merits, that the position will be sustained upon examination by a taxing authority. A recognized tax position is initially and subsequently measured as the largest amount of tax benefit that is greater than 50 percent likely of being realized upon settlement with a taxing authority. Liabilities for unrecognized tax benefits that are not expected to be settled within the next 12 months are included in other liabilities and provisions.

    

The Company routinely assesses potential uncertain tax positions and, if required, establishes accruals for such amounts. The accruals are adjusted based on changes in facts and circumstances. Material changes to Encana’s income tax accruals may occur in the future based on the progress of ongoing audits, changes in legislation or resolution of pending matters.

Encana’s unremitted earnings from its foreign subsidiaries are considered to be permanently reinvested outside of Canada, as a result the Company does not calculate a deferred tax liability for Canadian income taxes on these earnings.

    

Determination of unrecognized deferred income tax liabilities is not practicable due to the significant uncertainty in assumptions that would be required including determining the nature of any future remittances, that could be distributions in the form of non-taxable returns of capital or taxable earnings and associated withholding taxes, or determining the tax rates on any future remittances that could vary significantly depending on the available approaches to repatriate the earnings.

 

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Recent Accounting Pronouncements

 

For recently issued accounting policies, refer to Note 1 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

 

Non-GAAP Measures

Certain measures in this document do not have any standardized meaning as prescribed by U.S. GAAP and, therefore, are considered non-GAAP measures. These measures may not be comparable to similar measures presented by other issuers and should not be viewed as a substitute for measures reported under U.S. GAAP. These measures are commonly used in the oil and gas industry and by Encana to provide shareholders and potential investors with additional information regarding the Company’s liquidity and its ability to generate funds to finance its operations. Non-GAAP measures include: Non-GAAP Cash Flow, Corporate Margin and Debt to Adjusted Capitalization. Management’s use of these measures is discussed further below.

Non-GAAP Cash Flow and Corporate Margin

 

Non-GAAP Cash Flow is a non-GAAP measure defined as cash from (used in) operating activities excluding net change in other assets and liabilities, net change in non-cash working capital and current tax on sale of assets.

Corporate Margin is a non-GAAP measure defined as Non-GAAP Cash Flow per BOE of production.

Management believes these measures are useful to the Company and its investors as a measure of operating and financial performance across periods and against other companies in the industry, and are an indication of the Company’s ability to generate cash to finance capital programs, to service debt and to meet other financial obligations. These measures are used, along with other measures, in the calculation of certain performance targets for the Company’s management and employees.

 

($ millions, except as indicated)    2016         2015       2014      

Cash From (Used in) Operating Activities

   $                     625          $                     1,681        $                     2,667      

(Add back) deduct:

        

Net change in other assets and liabilities

     (26)           (11)         (43)     

Net change in non-cash working capital

     (187)           262          (9)     

Current tax on sale of assets

     -                    (215)     

Non-GAAP Cash Flow

   $ 838          $ 1,430        $ 2,934      

Production Volumes (MMBOE)

     129.1            148.2          174.7      

Corporate Margin ($/BOE)

   $ 6.49          $ 9.65        $ 16.79      

 

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Debt to Adjusted Capitalization

 

Debt to Adjusted Capitalization is a non-GAAP measure which adjusts capitalization for historical ceiling test impairments that were recorded as at December 31, 2011. Management monitors Debt to Adjusted Capitalization as a proxy for Encana’s financial covenant under the Credit Facilities which require debt to adjusted capitalization to be less than 60 percent. Adjusted Capitalization includes debt, total shareholders’ equity and an equity adjustment for cumulative historical ceiling test impairments recorded as at December 31, 2011 in conjunction with the Company’s January 1, 2012 adoption of U.S. GAAP.

 

($ millions, except as indicated)    December 31, 2016        December 31, 2015      December 31, 2014    

Debt (1)

   $             4,198         $             5,333       $             7,301     

Total Shareholders’ Equity

     6,126           6,167         9,685     

Equity Adjustment for Impairments at December 31, 2011

     7,746           7,746         7,746     

Adjusted Capitalization

   $ 18,070         $ 19,246       $ 24,732     

Debt to Adjusted Capitalization

     23%           28%         30%     

 

(1)

2015 and 2014 have been restated due to the adoption of ASU 2015-03, “Simplifying the Presentation of Debt Issuance Costs”, as discussed in the Liquidity and Capital Resources section of this MD&A and in Note 1 to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

 

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Item 7A: Quantitative and Qualitative Disclosures About Market Risk

The primary objective of the following information is to provide forward-looking quantitative and qualitative information about Encana’s potential exposure to market risks. The term “market risk” refers to the Company’s risk of loss arising from adverse changes in natural gas, oil and NGL prices, foreign currency exchange rates and interest rates. The following disclosures are not meant to be precise indicators of expected future losses but rather indicators of reasonably possible losses. The forward-looking information provides indicators of how the Company views and manages ongoing market risk exposures. The Company’s policy is to not use derivative financial instruments for speculative purposes.

COMMODITY PRICE RISK

Commodity price risk arises from the effect fluctuations in future commodity prices, including natural gas, oil and NGLs, may have on future revenues, expenses, and cash flows. Realized pricing is primarily driven by the prevailing worldwide price for crude oil and spot market prices applicable to the Company’s natural gas production. Pricing for oil and natural gas production has been volatile and unpredictable as discussed in Item 1A. “Risk Factors” of this Annual Report on Form 10-K. To partially mitigate exposure to commodity price risk, the Company may enter into various derivative financial instruments including futures, forwards, swaps, options, and costless collars. The use of these derivative instruments is governed under formal policies and is subject to limits established by the Board of Directors and may vary from year to year. Both exchange traded and over-the-counter traded derivative instruments may be subject to margin-deposit requirements, and the Company may be required from time to time to deposit cash or provide letters of credit with exchange brokers or counterparties to satisfy these margin requirements. For additional information relating to the Company’s derivative and financial instruments see Note 24 under Item 8 of this Annual Report on Form 10-K.

The table below summarizes the sensitivity of the fair value of the Company’s risk management positions to fluctuations in commodity prices, with all other variables held constant. The Company has used a ten percent variability to assess the potential impact of commodity price changes. Fluctuations in commodity prices could have resulted in unrealized gains (losses) impacting pre-tax net earnings as follows:

 

       December 31, 2016  
(US$ millions)       

 

10% Price

Increase

  

  

      

 

10% Price  

Decrease  

  

  

Natural gas price

       $        (126)           $        118     

Crude oil price

       (159)           150     

FOREIGN EXCHANGE RISK

Foreign exchange risk arises from changes in foreign exchange rates that may affect the fair value or future cash flows of the Company’s financial assets or liabilities. As Encana operates in Canada and the United States, fluctuations in the exchange rate between the U.S. and Canadian dollars can have a significant effect on the Company’s reported results. Although Encana’s financial results are consolidated in Canadian dollars, the Company reports its results in U.S. dollars as most of its revenues are closely tied to the U.S. dollar and to facilitate a more direct comparison to other North American oil and gas companies.

Foreign exchange gains and losses also arise when monetary assets and monetary liabilities denominated in foreign currencies are translated and settled, and primarily include:

   

U.S. dollar denominated debt issued from Canada

   

U.S. dollar denominated risk management assets and liabilities held in Canada

   

U.S. dollar denominated cash and short-term investments held in Canada

   

Foreign denominated intercompany loans

 

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To partially mitigate the effect of foreign exchange fluctuations on future commodity revenues and expenses, the Company may enter into foreign currency derivative contracts. As at December 31, 2016, Encana has entered into $300 million notional U.S. dollar denominated currency swaps at an average exchange rate of US$0.7486 to C$, which mature throughout 2017.

As at December 31, 2016, Encana had $4.2 billion in U.S. dollar debt issued from Canada that was subject to foreign exchange exposure.

The table below summarizes the sensitivity to foreign exchange rate fluctuations, with all other variables held constant. The Company has used a ten percent variability to assess the potential impact from Canadian to U.S. foreign currency exchange rate changes. Fluctuations in foreign currency exchange could have resulted in unrealized gains (losses) impacting pre-tax net earnings as follows:

 

       December 31, 2016  
(US$ millions)       

 

10% Rate

Increase

  

  

      

 

10% Rate  

Decrease  

  

  

Foreign currency exchange

       $        (367)           $        449     

INTEREST RATE RISK

Interest rate risk arises from changes in market interest rates that may affect the fair value or future cash flows from the Company’s financial assets or liabilities. The Company may partially mitigate its exposure to interest rate changes by holding a mix of both fixed and floating rate debt and may also enter into interest rate derivatives to partially mitigate effects of fluctuations in market interest rates.

As at December 31, 2016, the Company had no floating rate debt and there were no interest rate derivatives outstanding.

 

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Item 8: Financial Statements and Supplementary Data

Management Report

 

Management’s Responsibility for Consolidated Financial Statements

The accompanying Consolidated Financial Statements of Encana Corporation (the “Company”) are the responsibility of Management. The Consolidated Financial Statements have been prepared by Management in United States dollars in accordance with generally accepted accounting principles in the United States and include certain estimates that reflect Management’s best judgments.

The Company’s Board of Directors has approved the information contained in the Consolidated Financial Statements. The Board of Directors fulfills its responsibility regarding the financial statements mainly through its Audit Committee, which has a written mandate that complies with the requirements of Canadian and United States securities legislation and the Audit Committee guidelines of the New York Stock Exchange. The Audit Committee meets at least on a quarterly basis.

Management’s Assessment of Internal Control over Financial Reporting

Management is also responsible for establishing and maintaining adequate internal control over the Company’s financial reporting. The internal control system was designed to provide reasonable assurance to the Company’s Management regarding the preparation and presentation of the Consolidated Financial Statements.

Internal control systems, no matter how well designed, have inherent limitations. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

Management has assessed the design and effectiveness of the Company’s internal control over financial reporting as at December 31, 2016. In making its assessment, Management has used the Internal Control–Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission to evaluate the effectiveness of the Company’s internal control over financial reporting. Based on our evaluation, Management has concluded that the Company’s internal control over financial reporting was effective as at that date.

PricewaterhouseCoopers LLP, an independent firm of chartered professional accountants, was appointed by a vote of shareholders at the Company’s last annual meeting to audit and provide independent opinions on both the Consolidated Financial Statements and the Company’s internal control over financial reporting as at December 31, 2016, as stated in their Auditor’s Report. PricewaterhouseCoopers LLP has provided such opinions.

 

/s/ Douglas J. Suttles

 

/s/ Sherri A. Brillon

Douglas J. Suttles

 

Sherri A. Brillon

President &

 

Executive Vice-President &

Chief Executive Officer

 

Chief Financial Officer

February 27, 2017

 

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Auditor’s Report

 

Report of Independent Registered Public Accounting Firm

To the Shareholders of Encana Corporation

We have audited the accompanying Consolidated Balance Sheet of Encana Corporation as at December 31, 2016 and December 31, 2015 and the related Consolidated Statements of Earnings, Comprehensive Income, Changes in Shareholders’ Equity and Cash Flows for each of the years in the three-year period ended December 31, 2016. We also have audited Encana’s internal control over financial reporting as of December 31, 2016, based on criteria established in Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Management is responsible for these Consolidated Financial Statements, for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Management’s Assessment of Internal Control over Financial Reporting. Our responsibility is to express an opinion on these Consolidated Financial Statements and the company’s internal control over financial reporting based on our integrated audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the Consolidated Financial Statements are free of material misstatement and whether effective internal control over financial reporting was maintained in all material respects. Our audits of the Consolidated Financial Statements included examining, on a test basis, evidence supporting the amounts and disclosures in the Consolidated Financial Statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall Consolidated Financial Statement presentation. Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions.

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that: (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements. Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

In our opinion, the Consolidated Financial Statements referred to above present fairly, in all material respects, the financial position of Encana Corporation as at December 31, 2016 and December 31, 2015 and the results of its operations and its cash flows for each of the years in the three-year period ended December 31, 2016 in conformity with accounting principles generally accepted in the United States of America. Also, in our opinion, Encana Corporation maintained, in all material respects, effective internal control over financial reporting as of December 31, 2016, based on criteria established in Internal Control–Integrated Framework (2013) issued by COSO.

 

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As discussed in Note 1 Y) to the Consolidated Financial Statements, Encana Corporation retrospectively changed its method of balance sheet classification for debt issuance costs due to the adoption of ASU 2015-03, “Simplifying the Presentation of Debt Issuance Costs” and ASU 2015-15, “Presentation and Subsequent Measurement of Debt Issuance Costs Associated with Line-of-Credit Arrangements” in January 2016.

/s/ PricewaterhouseCoopers LLP

PricewaterhouseCoopers LLP

Chartered Professional Accountants

Calgary, Alberta, Canada

February 27, 2017

 

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Consolidated Statement of Earnings

 

For the years ended December 31 (US$ millions, except per share amounts)      2016        2015     2014   

Revenues

     (Note 2)           

Product revenues

      $           2,443         $           3,350      $           6,238    

Gains (losses) on risk management, net

     (Note 24)         (275)          592        372    

Market optimization

        647           368        1,251    

Other

              103           112        158    

Total Revenues

              2,918           4,422        8,019    

Operating Expenses

     (Note 2)           

Production, mineral and other taxes

        99           144        210    

Transportation and processing

     (Note 24)         901           1,252        1,496    

Operating

        598           723        667    

Purchased product

        586           323        1,191    

Depreciation, depletion and amortization

        859           1,488        1,745    

Impairments

     (Note 9)         1,396           6,473          

Accretion of asset retirement obligation

     (Note 15)         51           45        52    

Administrative

     (Note 20)         309           275        327    

Total Operating Expenses

              4,799           10,723        5,688    

Operating Income (Loss)

              (1,881)          (6,301     2,331    

Other (Income) Expenses

          

Interest

     (Note 5)         397           614        654    

Foreign exchange (gain) loss, net

     (Notes 6, 24)         (210)          1,082        403    

(Gain) loss on divestitures, net

     (Notes 4, 18)         (390)          (14     (3,426)   

Other (gains) losses, net

     (Notes 3, 13)         (58)          27        71    

Total Other (Income) Expenses

              (261)          1,709        (2,298)   

Net Earnings (Loss) Before Income Tax

        (1,620)          (8,010     4,629    

Income tax expense (recovery)

     (Note 7)         (676)          (2,845     1,203    

Net Earnings (Loss)

        (944)          (5,165     3,426    

Net earnings attributable to noncontrolling interest

     (Note 18)         -           -        (34)   

Net Earnings (Loss) Attributable to Common Shareholders

            $ (944)        $ (5,165   $ 3,392    

Net Earnings (Loss) per Common Share

          

Basic & Diluted

     (Note 16)       $ (1.07)        $ (6.28   $ 4.58    

Dividends Declared per Common Share

     (Note 16)       $ 0.06         $ 0.28      $ 0.28    

Weighted Average Common Shares Outstanding (millions)

     (Note 16)           

Basic & Diluted

              882.6           822.1        741.0    

Consolidated Statement of Comprehensive Income

  

For the years ended December 31 (US$ millions)            2016        2015     2014   

Net Earnings (Loss)

      $ (944)        $ (5,165   $           3,426    

Other Comprehensive Income (Loss), Net of Tax

          

Foreign currency translation adjustment

     (Note 17)         (183)          668        22    

Pension and other post-employment benefit plans

     (Notes 17, 22)         3           33        (17)   

Other Comprehensive Income (Loss)

              (180)          701          

Comprehensive Income (Loss)

        (1,124)                    (4,464     3,431    

Comprehensive Income Attributable to Noncontrolling Interest

     (Note 18)         -           -        (34)   

Comprehensive Income (Loss) Attributable to Common Shareholders

            $           (1,124)        $ (4,464   $ 3,397    

See accompanying Notes to Consolidated Financial Statements

 

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Consolidated Balance Sheet

 

 

As at December 31 (US$ millions)           2016        2015    

Assets

       

Current Assets

       

Cash and cash equivalents

     $ 834         $ 271     

Accounts receivable and accrued revenues

    (Note 8)         663           645     

Risk management

    (Notes 23, 24)         -           367     

Income tax receivable

             426           324     
       1,923           1,607     

Property, Plant and Equipment, at cost:

    (Note 9)         

Natural gas and oil properties, based on full cost accounting

       

Proved properties

       39,610           40,647     

Unproved properties

       5,198           5,616     

Other

             2,194           2,181     

Property, plant and equipment

       47,002           48,444     

Less: Accumulated depreciation, depletion and amortization

             (38,863)          (38,587)    

Property, plant and equipment, net

    (Note 2)         8,139           9,857     

Cash in Reserve

       2           2     

Other Assets

    (Notes 1, 10)         136           266     

Risk Management

    (Notes 23, 24)         16           11     

Deferred Income Taxes

    (Note 7)         1,658           1,081     

Goodwill

    (Notes 2, 3, 4, 11, 18)         2,779           2,790     
      (Note 2)       $ 14,653         $ 15,614     

Liabilities and Shareholders’ Equity

       

Current Liabilities

       

Accounts payable and accrued liabilities

    (Note 12)       $ 1,303         $ 1,311     

Income tax payable

       5           6     

Risk management

    (Notes 23, 24)         254           16     
       1,562           1,333     

Long-Term Debt

    (Notes 1, 13)         4,198           5,333     

Other Liabilities and Provisions

    (Note 14)         2,047           1,975     

Risk Management

    (Notes 23, 24)         35           9     

Asset Retirement Obligation

    (Note 15)         654           773     

Deferred Income Taxes

    (Note 7)         31           24     
               8,527           9,447     

Commitments and Contingencies

    (Note 26)         

Shareholders’ Equity

       

Share capital - authorized unlimited common shares

       

2016 issued and outstanding: 973.0 million shares (2015: 849.8 million shares)

    (Note 16)         4,756           3,621     

Paid in surplus

    (Notes 18, 21)         1,358           1,358     

Retained earnings (Accumulated deficit)

       (1,198)          (202)    

Accumulated other comprehensive income

    (Note 17)         1,210           1,390     

Total Shareholders’ Equity

             6,126           6,167     
             $       14,653         $       15,614     

See accompanying Notes to Consolidated Financial Statements

Approved by the Board of Directors

 

/s/ Clayton H. Woitas

Clayton H. Woitas

Director

 

/s/ Jane L. Peverett

Jane L. Peverett

Director

 

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Consolidated Statement of Changes in Shareholders’ Equity

 

 

For the year ended

December 31, 2016 (US$ millions)

    Share
Capital
    Paid in
Surplus
    Retained
Earnings
(Accumulated
Deficit)
   

Accumulated

Other
Comprehensive
Income

    Non-
Controlling
Interest
   

Total

Shareholders’

Equity

 

Balance, December 31, 2015

    $           3,621     $           1,358     $ (202   $ 1,390     $ -     $               6,167   

Net Earnings (Loss)

      -       -       (944     -       -       (944)  

Dividends on Common Shares

    (Note 16)       -       -       (52     -       -       (52)  

Common Shares Issued

    (Note 16)       1,134       -       -       -       -       1,134   

Common Shares Issued Under Dividend Reinvestment Plan

    (Note 16)       1       -       -       -       -        

Other Comprehensive Income (Loss)

    (Note 17)       -       -       -       (180     -       (180)  

Balance, December 31, 2016

          $ 4,756     $ 1,358     $ (1,198   $ 1,210     $ -     $ 6,126   

For the year ended

December 31, 2015 (US$ millions)

    Share
Capital
    Paid in
Surplus
    Retained
Earnings
(Accumulated
Deficit)
   

 

Accumulated

Other
Comprehensive
Income

    Non-
Controlling
Interest
    Total
Shareholders’
Equity
 

Balance, December 31, 2014

    $ 2,450     $ 1,358     $ 5,188     $ 689     $ -     $ 9,685   

Net Earnings (Loss)

      -       -       (5,165     -       -       (5,165)  

Dividends on Common Shares

    (Note 16)       -       -       (225     -       -       (225)  

Common Shares Issued

    (Note 16)       1,098       -       -       -       -       1,098   

Common Shares Issued Under Dividend Reinvestment Plan

    (Note 16)       73       -       -       -       -       73   

Other Comprehensive Income (Loss)

    (Note 17)       -       -       -       701       -       701   

Balance, December 31, 2015

          $ 3,621     $ 1,358     $ (202   $ 1,390     $ -     $ 6,167   

For the year ended

December 31, 2014 (US$ millions)

    Share
Capital
    Paid in
Surplus
    Retained
Earnings
   

 

Accumulated

Other
Comprehensive
Income

    Non-
Controlling
Interest
    Total
Shareholders’
Equity
 

Balance, December 31, 2013

    $ 2,445     $ 15     $ 2,003     $ 684     $ -     $ 5,147   

Share-Based Compensation

    (Note 21)       -       (2     -       -       -       (2)  

Net Earnings (Loss)

      -       -       3,392       -       34       3,426   

Dividends on Common Shares

    (Note 16)       -       -       (207     -       -       (207)  

Common Shares Issued Under Dividend Reinvestment Plan

    (Note 16)       5       -       -       -       -        

Other Comprehensive Income (Loss)

    (Note 17)       -       -       -       5       -        

Sale of Noncontrolling Interest

    (Note 18)       -       1,345       -       -       117       1,462   

Distributions to Noncontrolling Interest Owners

    (Note 18)       -       -       -       -       (18     (18)  

Sale of Investment in PrairieSky

    (Note 18)       -       -       -       -       (133     (133)  

Balance, December 31, 2014

          $ 2,450     $ 1,358     $ 5,188     $ 689     $ -     $ 9,685   

See accompanying Notes to Consolidated Financial Statements

 

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Consolidated Statement of Cash Flows

 

 

For the years ended December 31 (US$ millions)            2016        2015     2014   

Operating Activities

          

Net earnings (loss)

      $ (944)        $ (5,165   $           3,426    

Depreciation, depletion and amortization

        859           1,488        1,745    

Impairments

     (Note 9)         1,396           6,473          

Accretion of asset retirement obligation

     (Note 15)         51           45        52    

Deferred income taxes

     (Note 7)         (598)          (2,811     960    

Unrealized (gain) loss on risk management

     (Note 24)         614           331        (444)   

Unrealized foreign exchange (gain) loss

     (Note 6)         (140)          687        440    

Foreign exchange on settlements

     (Note 6)         (68)          358        28    

(Gain) loss on divestitures, net

     (Notes 4, 18)         (390)          (14     (3,426)   

Other

        58           38        (62)   

Net change in other assets and liabilities

        (26)          (11     (43)   

Net change in non-cash working capital

     (Note 25)         (187)          262        (9)   

Cash From (Used in) Operating Activities

              625           1,681        2,667    

Investing Activities

          

Capital expenditures

     (Note 2)         (1,132)          (2,232     (2,526)   

Acquisitions

     (Note 4)         (210)          (70     (3,016)   

Corporate acquisition

     (Note 3)         -           -        (5,962)   

Proceeds from divestitures

     (Note 4)         1,262           1,908        4,345    

Proceeds from sale of investment in PrairieSky

     (Notes 4, 18)         -           -        2,172    

Cash in reserve

        -           71        (63)   

Net change in investments and other

              51           (342     321    

Cash From (Used in) Investing Activities

              (29)          (665     (4,729)   

Financing Activities

          

Net issuance (repayment) of revolving long-term debt

     (Notes 3, 13)         (650)          (627     942    

Repayment of long-term debt

     (Note 13)         (400)          (1,302     (2,152)   

Issuance of common shares, net of offering costs

     (Note 16)         1,129           1,088          

Dividends on common shares

     (Note 16)         (51)          (152     (202)   

Proceeds from sale of noncontrolling interest

     (Note 18)         -           -        1,462    

Distributions to noncontrolling interest owners

     (Note 18)         -           -        (18)   

Capital lease payments and other financing arrangements

     (Note 14)         (66)          (61     (71)   

Cash From (Used in) Financing Activities

              (38)          (1,054     (39)   

Foreign Exchange Gain (Loss) on Cash and Cash

          

Equivalents Held in Foreign Currency

              5           (29     (127)   

Increase (Decrease) in Cash and Cash Equivalents

        563           (67     (2,228)   

Cash and Cash Equivalents, Beginning of Year

              271           338        2,566    

Cash and Cash Equivalents, End of Year

            $             834         $ 271      $ 338    

Cash, End of Year

      $ 78         $ 58      $ 142    

Cash Equivalents, End of Year

              756           213        196    

Cash and Cash Equivalents, End of Year

            $ 834         $             271      $ 338    

Supplementary Cash Flow Information

     (Note 25)           

See accompanying Notes to Consolidated Financial Statements

 

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 1.     Summary of Significant Accounting Policies

 

 

A)

NATURE OF OPERATIONS

Encana is in the business of the exploration for, the development of, and the production and marketing of natural gas, oil and NGLs.

 

B)

BASIS OF PRESENTATION

The Consolidated Financial Statements include the accounts of Encana and are presented in conformity with U.S. GAAP.

In these Consolidated Financial Statements, unless otherwise indicated, all dollar amounts are expressed in U.S. dollars. Encana’s financial results are consolidated in Canadian dollars; however, the Company has adopted the U.S. dollar as its reporting currency to facilitate a more direct comparison to other North American oil and gas companies. All references to US$ or to $ are to United States dollars and references to C$ are to Canadian dollars.

 

C)

PRINCIPLES OF CONSOLIDATION

The Consolidated Financial Statements include the accounts of Encana and entities in which it holds a controlling interest. The noncontrolling interest represented the third party equity ownership in a former consolidated subsidiary, PrairieSky Royalty Ltd. (“PrairieSky”), as presented in the Consolidated Statement of Changes in Shareholders’ Equity. As of September 26, 2014, Encana no longer held an interest in PrairieSky. See Note 18 for further details regarding the noncontrolling interest. All intercompany balances and transactions are eliminated on consolidation. Undivided interests in natural gas and oil exploration and production joint ventures and partnerships are consolidated on a proportionate basis. Investments in non-controlled entities over which Encana has the ability to exercise significant influence are accounted for using the equity method.

 

D)

FOREIGN CURRENCY TRANSLATION

Monetary assets and liabilities of the Company that are denominated in foreign currencies are translated at the rates of exchange in effect at the period end date. Any gains or losses are recorded in the Consolidated Statement of Earnings. Foreign currency revenues and expenses are translated at the rates of exchange in effect at the time of the transaction.

Assets and liabilities of foreign operations are translated at period end exchange rates, while the related revenues and expenses are translated using average rates during the period. Translation gains and losses relating to the foreign operations are included in accumulated other comprehensive income (“AOCI”). Recognition of Encana’s accumulated translation gains and losses into net earnings occurs upon complete or substantially complete liquidation of the Company’s investment in the foreign operation.

For financial statement presentation, assets and liabilities are translated into the reporting currency at period end exchange rates, while revenues and expenses are translated using average rates over the period. Gains and losses relating to the financial statement translation are included in AOCI.

 

E)

USE OF ESTIMATES

Preparation of the Consolidated Financial Statements in conformity with U.S. GAAP requires Management to make informed estimates and assumptions and use judgments that affect reported amounts of assets and liabilities and disclosures of contingent assets and liabilities at the date of the Consolidated Financial Statements and the reported amounts of revenues and expenses during the period. Such estimates primarily relate to unsettled transactions and events as of the date of the Consolidated Financial Statements. Accordingly, actual results may differ from estimated amounts as future events occur.

 

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Significant items subject to estimates and assumptions are:

 

   

Estimates of proved reserves used for depletion and ceiling test impairment calculations

   

Estimated fair value of long-term assets used for impairment calculations

   

Fair value of reporting units used for the assessment of goodwill

   

Estimates of future taxable earnings used to assess the realizable value of deferred tax assets

   

Fair value of asset retirement costs and related obligations

   

Fair value of derivative instruments

   

Fair value attributed to assets acquired and liabilities assumed in business combinations

   

Tax interpretations, regulations and legislation in the various jurisdictions in which the Company and its subsidiaries operate

   

Accruals for long-term performance-based compensation arrangements, including whether or not the performance criteria will be met and measurement of the ultimate payout amount

   

Recognized values of pension assets and obligations, as well as the pension costs charged to net earnings, depend on certain actuarial and economic assumptions

   

Accruals for legal claims, environmental risks and exposures

 

F)

REVENUE RECOGNITION

Revenues associated with Encana’s natural gas and liquids are recognized when production is sold to a purchaser at a fixed or determinable price, delivery has occurred, title has transferred and collectability of the revenue is probable. Revenues are presented on an after-royalties basis. Realized gains and losses from the Company’s financial derivatives related to natural gas and oil commodity prices are recognized in revenues when the contract is settled. Unrealized gains and losses related to these contracts are recognized in revenues based on the changes in fair value of the contracts at the end of the respective periods.

Market optimization revenues and purchased product expenses are recorded on a gross basis when Encana takes title to the product and has the risks and rewards of ownership. Purchases and sales of products that are entered into in contemplation of each other with the same counterparty are recorded on a net basis. Revenues associated with the services provided where Encana acts as agent are recorded as the services are provided.

Other revenues primarily include sublease rentals and interest income. Sublease rentals are recognized straight-line over the lease term. Interest income is generated from cash and cash equivalents held and is recognized as earned.

 

G)

PRODUCTION, MINERAL AND OTHER TAXES

Costs paid by Encana for taxes based on production or revenues from natural gas and liquids are recognized when the product is produced. Costs paid by Encana for taxes on the valuation of upstream assets and reserves are recognized when incurred.

 

H)

TRANSPORTATION AND PROCESSING

Costs paid by Encana for the transportation and processing of natural gas and liquids are recognized when the product is delivered and the services made available or provided.

 

I)

OPERATING

Operating costs paid by Encana, net of amounts capitalized, for oil and gas properties in which the Company has a working interest.

 

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J)

EMPLOYEE BENEFIT PLANS

The Company sponsors defined contribution and defined benefit plans, providing pension and other post-employment benefits to its employees in Canada and the U.S. As of January 1, 2003, the defined benefit pension plan was closed to new entrants.

Pension expense for the defined contribution pension plan is recorded as the benefits are earned by the employees covered by the plans. Encana accrues for its obligations under its employee defined benefit plans, net of plan assets. The cost of defined benefit pensions and other post-employment benefits is actuarially determined using the projected benefit method based on length of service and reflects Management’s best estimate of salary escalation, mortality rates, retirement ages of employees and expected future health care costs. The expected return on plan assets is based on historical and projected rates of return for assets in the investment plan portfolio. The actual return is based on the fair value of plan assets. The projected benefit obligation is discounted using the market interest rate on high-quality corporate debt instruments as at the measurement date.

Pension expense for the defined benefit pension plan includes the cost of pension benefits earned during the current year, the interest cost on pension obligations, the expected return on pension plan assets, the amortization of adjustments arising from pension plan amendments, the amortization of prior service costs, and the amortization of the excess of the net actuarial gains or losses over 10 percent of the greater of the benefit obligation and the fair value of plan assets. Amortization is on a straight-line basis over a period covering the expected average remaining service lives of employees covered by the plans. Actuarial gains and losses related to the change in the over-funded or under-funded status of the defined benefit pension plan and other post-employment benefit plans are recognized in other comprehensive income.

 

K)

INCOME TAXES

Encana follows the liability method of accounting for income taxes. Under this method, deferred income taxes are recorded for the effect of any temporary difference between the accounting and income tax basis of an asset or liability, using the enacted income tax rates and laws expected to apply when the assets are realized and liabilities are settled. Current income taxes are measured at the amount expected to be recoverable from or payable to the taxation authorities based on the income tax rates and laws enacted at the end of the reporting period. The effect of a change in the enacted tax rates or laws is recognized in net earnings in the period of enactment. Income taxes are recognized in net earnings except to the extent that they relate to items recognized directly in shareholders’ equity, in which case the income taxes are recognized directly in shareholders’ equity.

Deferred income tax assets are routinely assessed for realizability. If it is more likely than not that deferred tax assets will not be realized, a valuation allowance is recorded to reduce the deferred tax assets. Encana considers available positive and negative evidence when assessing the realizability of deferred tax assets including historic and expected future taxable earnings, available tax planning strategies and carry forward periods. The assumptions used in determining expected future taxable earnings are consistent with those used in the goodwill impairment assessment.

Encana recognizes the financial statement effects of a tax position when it is more likely than not, based on the technical merits, that the position will be sustained upon examination by a taxing authority. A recognized tax position is initially and subsequently measured as the largest amount of tax benefit that is greater than 50 percent likely of being realized upon settlement with a taxing authority. Liabilities for unrecognized tax benefits that are not expected to be settled within the next 12 months are included in other liabilities and provisions.

 

L)

EARNINGS PER SHARE AMOUNTS

Basic net earnings per common share is computed by dividing the net earnings by the weighted average number of common shares outstanding during the period. Diluted net earnings per common share amounts are calculated giving effect to the potential dilution that would occur if stock options were exercised or other contracts to issue common shares were exercised, fully vested, or converted to common shares. The treasury stock method is used

 

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to determine the dilutive effect of stock options and other dilutive instruments. The treasury stock method assumes that proceeds received from the exercise of in-the-money stock options and other dilutive instruments are used to repurchase common shares at the average market price.

 

M)

CASH AND CASH EQUIVALENTS

Cash and cash equivalents include cash on hand and short-term investments, such as money market deposits or similar type instruments, with a maturity of three months or less when purchased. Outstanding disbursements issued in excess of applicable bank account balances are excluded from cash and cash equivalents and are recorded in accounts payable and accrued liabilities. Cash in reserve represents cash amounts segregated or held in escrow which are not available for general operating use.

 

N)

PROPERTY, PLANT AND EQUIPMENT

UPSTREAM

Encana uses the full cost method of accounting for its acquisition, exploration and development activities. Accordingly, all costs directly associated with the acquisition of, the exploration for, and the development of natural gas and liquids reserves, including costs of undeveloped leaseholds, dry holes and related equipment, are capitalized on a country-by-country cost centre basis. Capitalized costs exclude costs relating to production, general overhead or similar activities.

Capitalized costs accumulated within each cost centre are depleted using the unit-of-production method based on proved reserves. Depletion is calculated using the capitalized costs, including estimated retirement costs, plus the undiscounted future expenditures, based on current costs, to be incurred in developing proved reserves.

Costs associated with unproved properties are excluded from the depletion calculation until it is determined that proved reserves are attributable or impairment has occurred. Unproved properties are assessed separately for impairment on a quarterly basis. Costs that have been impaired are included in the costs subject to depletion within the full cost pool.

Under the full cost method of accounting, the carrying amount of Encana’s natural gas and oil properties within each country cost centre is subject to a ceiling test at the end of each quarter. A ceiling test impairment is recognized in net earnings when the carrying amount of a country cost centre exceeds the country cost centre ceiling. The carrying amount of a cost centre includes capitalized costs of proved oil and gas properties, net of accumulated depletion and the related deferred income taxes.

The cost centre ceiling is the sum of the estimated after-tax future net cash flows from proved reserves, using the 12-month average trailing prices and unescalated future development and production costs, discounted at 10 percent, plus unproved property costs. The 12-month average trailing price is calculated as the average of the price on the first day of each month within the trailing 12-month period. Any excess of the carrying amount over the calculated ceiling amount is recognized as an impairment in net earnings.

Proceeds from the divestiture of properties are normally deducted from the full cost pool without recognition of gain or loss unless the deduction significantly alters the relationship between capitalized costs and proved reserves in the cost centre, in which case a gain or loss is recognized in net earnings. Generally, a gain or loss on a divestiture would be recognized when 25 percent or more of the Company’s proved reserves quantities in a particular country are sold. For divestitures that result in the recognition of a gain or loss on the sale and constitute a business, goodwill is allocated to the divestiture.

CORPORATE

Costs associated with office furniture, fixtures, leasehold improvements, information technology and aircraft are carried at cost and depreciated on a straight-line basis over the estimated service lives of the assets, which range

 

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from three to 25 years. Costs associated with The Bow office building are carried at cost and depreciated on a straight-line basis over the 60-year estimated life of the building. Assets under construction are not subject to depreciation until put into use. Land is carried at cost.

 

O)

CAPITALIZATION OF COSTS

Expenditures related to renewals or betterments that improve the productive capacity or extend the life of an asset are capitalized. Maintenance and repairs are expensed as incurred. Interest on borrowings associated with major development projects is capitalized during the construction phase.

 

P)

BUSINESS COMBINATIONS

Business combinations are accounted for using the acquisition method. The acquired identifiable net assets are measured at their fair value at the date of acquisition. Deferred taxes are recognized for any differences between the fair value of net assets acquired and their tax bases. Any excess of the purchase price over the fair value of the net assets acquired is recognized as goodwill. Any deficiency of the purchase price below the fair value of the net assets acquired is recorded as a gain in net earnings. Associated transaction costs are expensed when incurred.

 

Q)

GOODWILL

Goodwill, which represents the excess of purchase price over fair value of net assets acquired, is assessed for impairment at least annually at December 31. Goodwill and all other assets and liabilities are allocated to reporting units, which are Encana’s country cost centres. To assess impairment, the carrying amount of each reporting unit is determined and compared to the fair value of the reporting unit. If the carrying amount of the reporting unit, including goodwill, is higher than its related fair value then goodwill is written down to the reporting unit’s implied fair value of goodwill. The implied fair value of goodwill is determined by deducting the fair value of the reporting unit’s assets and liabilities from the fair value of the reporting unit as if the reporting entity had been acquired in a business combination. Any excess of the carrying value of goodwill over the implied fair value of goodwill is recognized as an impairment and charged to net earnings. Subsequent measurement of goodwill is at cost less any accumulated impairments.

 

R)

IMPAIRMENT OF LONG-TERM ASSETS

The carrying value of long-term assets, excluding goodwill and upstream assets included in property, plant and equipment, is assessed for impairment when indicators suggest that the carrying value of an asset or asset group may not be recoverable. If the carrying amount exceeds the sum of the undiscounted cash flows expected to result from the continued use and eventual disposition of the asset or asset group, an impairment is recognized for the excess of the carrying amount over its estimated fair value.

 

S)

ASSET RETIREMENT OBLIGATION

Asset retirement obligations are those legal obligations where the Company will be required to retire tangible long-lived assets such as producing well sites, offshore production platforms and natural gas processing plants. The asset retirement obligation is initially measured at its fair value and recorded as a liability with an offsetting retirement cost that is capitalized as part of the related long-lived asset on the Consolidated Balance Sheet. The estimated fair value is measured by reference to the expected future cash flows required to satisfy the obligation, discounted at the Company’s credit-adjusted risk-free rate. Changes in the estimated obligation resulting from revisions to estimated timing or amount of future cash flows are recognized as a change in the asset retirement obligation and the related asset retirement cost.

Amortization of asset retirement costs are included in depreciation, depletion and amortization in the Consolidated Statement of Earnings. Increases in the asset retirement obligations resulting from the passage of time are recorded as accretion of asset retirement obligation in the Consolidated Statement of Earnings.

Actual expenditures incurred are charged against the accumulated asset retirement obligation.

 

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T)

STOCK-BASED COMPENSATION

Obligations for payments of cash or common shares under Encana’s stock-based compensation plans are accrued over the vesting period, net of forfeitures, using fair values. Fair values are determined using observable share prices and/or pricing models such as the Black-Scholes-Merton option-pricing model. For equity-settled stock-based compensation plans, fair values are determined at the grant date and are recognized over the vesting period as compensation costs with a corresponding credit to shareholders’ equity. For cash-settled stock-based compensation plans, fair values are determined at each reporting date and periodic changes are recognized as compensation costs, with a corresponding change to liabilities.

 

U)

LEASES

Leases entered into for the use of an asset are classified as either capital or operating leases. Capital leases transfer to the Company substantially all of the risks and benefits incidental to ownership of the leased item. Capital leases are capitalized upon commencement of the lease term at the lower of the fair value of the leased asset or the present value of the minimum lease payments. Capitalized leased assets are amortized over the estimated useful life of the asset if the lease arrangement contains a bargain purchase option or ownership of the leased asset transfers at the end of the lease term. Otherwise, the leased assets are amortized over the lease term. Amortization of capitalized leased assets is included in depreciation, depletion and amortization in the Consolidated Statement of Earnings. All other leases are classified as operating leases and the payments are recognized on a straight-line basis over the lease term.

 

V)

FAIR VALUE MEASUREMENTS

Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. Valuation techniques include the market, income and cost approach. The market approach uses information generated by market transactions involving identical or comparable assets or liabilities; the income approach converts estimated future amounts to a present value; the cost approach is based on the amount that currently would be required to replace an asset.

Inputs used in determining fair value are characterized according to a hierarchy that prioritizes those inputs based on the degree to which they are observable. The three input levels of the fair value hierarchy are as follows:

 

   

Level 1 - Inputs represent quoted prices in active markets for identical assets or liabilities, such as exchange-traded commodity derivatives.

 

   

Level 2 - Inputs other than quoted prices included within Level 1 that are observable for the asset or liability, either directly or indirectly, such as quoted market prices for similar assets or liabilities in active markets or other market corroborated inputs.

 

   

Level 3 - Inputs that are not observable from objective sources, such as forward prices supported by little or no market activity or internally developed estimates of future cash flows used in a present value model.

In determining fair value, the Company utilizes the most observable inputs available. If a fair value measurement reflects inputs at multiple levels within the hierarchy, the fair value measurement is characterized based on the lowest level of input that is significant to the fair value measurement.

The carrying amount of cash and cash equivalents, accounts receivable and accounts payable reported on the Consolidated Balance Sheet approximates fair value. The fair value of long-term debt is disclosed in Note 13. Fair value information related to pension plan assets is included in Note 22. Recurring fair value measurements are performed for risk management assets and liabilities and other derivative contracts as discussed in Note 23.

Certain non-financial assets and liabilities are initially measured at fair value, such as asset retirement obligations and assets and liabilities acquired in business combinations or certain non-monetary exchange transactions.

 

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W)

RISK MANAGEMENT ASSETS AND LIABILITIES

Risk management assets and liabilities are derivative financial instruments used by Encana to manage economic exposure to market risks relating to commodity prices, foreign currency exchange rates and interest rates. The use of these derivative instruments is governed under formal policies and is subject to limits established by the Board of Directors. The Company’s policy is not to utilize derivative financial instruments for speculative purposes.

Derivative instruments that do not qualify for the normal purchases and sales exemption are measured at fair value with changes in fair value recognized in net earnings. The fair values recorded in the Consolidated Balance Sheet reflect netting the asset and liability positions where counterparty master netting arrangements contain provisions for net settlement. Realized gains or losses from financial derivatives related to natural gas and oil commodity prices are recognized in revenues as the contracts are settled. Realized gains or losses from financial derivatives related to power commodity prices are recognized in transportation and processing expense as the related power contracts are settled. Realized gains or losses from foreign currency exchange swaps are recognized in foreign exchange (gain) loss as the contracts are settled. Realized gains or losses from other derivative contracts related to certain payment obligations are recognized in revenues as the obligations are settled. Unrealized gains and losses are recognized in revenues, transportation and processing expense and foreign exchange (gain) loss accordingly, at the end of each respective reporting period based on the changes in fair value of the contracts.

 

X)

COMMITMENTS AND CONTINGENCIES

Liabilities for loss contingencies arising from claims, assessments, litigation, environmental and other sources are recorded when it is probable that a liability has been incurred and the amount can be reasonably estimated. These accruals are adjusted as additional information becomes available or circumstances change.

 

Y)

RECENT ACCOUNTING PRONOUNCEMENTS

CHANGES IN ACCOUNTING POLICIES AND PRACTICES

On January 1, 2016, Encana adopted the following ASUs issued by the FASB, which have not had a material impact on the Company’s Consolidated Financial Statements:

 

 

ASU 2014-12, “Compensation–Stock Compensation: Accounting for Share-Based Payments When the Terms of an Award Provide That a Performance Target Could Be Achieved After the Requisite Service Period”. The update requires that a performance target that affects vesting and could be achieved after the requisite service period be treated as a performance condition. The amendments have been applied prospectively.

 

 

ASU 2015-02, “Amendments to the Consolidation Analysis”. The update requires limited partnerships and similar entities to be evaluated under the variable interest and voting interest models, eliminate the presumption that a general partner should consolidate a limited partnership, and simplify the identification of variable interests and related effect on the primary beneficiary criterion when fees are paid to a decision maker. The amendments have been applied using a full retrospective approach.

 

 

ASU 2015-03, “Simplifying the Presentation of Debt Issuance Costs” and ASU 2015-15, “Presentation and Subsequent Measurement of Debt Issuance Costs Associated with Line-of-Credit Arrangements”. The updates require debt issuance costs to be presented on the balance sheet as a deduction from the carrying amount of the related liability. Previously, debt issuance costs were presented as a deferred charge within assets. The updates further clarify that regardless of whether there are outstanding borrowings, debt issuance costs arising from credit arrangements can be presented as an asset and subsequently amortized ratably over the term of the arrangement. These amendments have been applied retrospectively and resulted in a $30 million decrease in Other Assets, with a corresponding $30 million decrease in Long-Term Debt as at December 31, 2015.

 

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NEW STANDARDS ISSUED NOT YET ADOPTED

As of January 1, 2018, Encana will be required to adopt ASU 2014-09, “Revenue from Contracts with Customers” under Topic 606, which replaces Topic 605, “Revenue Recognition”, and other industry-specific guidance in the ASC. The new standard is based on the principle that revenue is recognized on the transfer of promised goods or services to customers in an amount that reflects the consideration the company expects to be entitled to in exchange for those goods or services. In August 2015, the FASB issued ASU 2015-14, “Deferral of Effective Date for Revenue from Contracts with Customers”, which deferred the effective date of ASU 2014-09, but permits early adoption using the original effective date of January 1, 2017. The standard can be applied using one of two retrospective application methods at the date of adoption. Although Encana has not yet completed the implementation, the Company currently believes the standard will not have a material impact on the Company’s Consolidated Financial Statements other than enhanced disclosures relating to the disaggregation of revenues from contracts with customers, the Company’s performance obligations and significant judgments.

As of January 1, 2019, Encana will be required to adopt ASU 2016-02, “Leases” under Topic 842, which replaces Topic 840 “Leases”. The new standard will require lessees to recognize right-of-use assets and related lease liabilities for all leases, including leases classified as operating leases, on the Consolidated Balance Sheet. The dual classification model requiring leases recognized to be classified as either finance or operating leases was retained for the purpose of subsequent measurement and presentation in the Consolidated Statement of Earnings and Consolidated Statement of Cash Flows. The new standard also expands disclosures related to the amount, timing and uncertainty of cash flows arising from leases. The standard will be applied using a modified retrospective approach and provides for certain practical expedients. Encana is currently in the early stages of evaluating the standard, but expects that it will have a material impact on the Company’s Consolidated Financial Statements.

As of January 1, 2020, Encana will be required to adopt ASU 2017-04, “Simplifying the Test for Goodwill Impairment”. The amendment eliminates the second step of the goodwill impairment test which required the Company to measure the impairment based on the excess amount of the carrying value of the reporting unit’s goodwill over the implied fair value of its goodwill. Under this amendment, the goodwill impairment will be measured based on the excess amount of the reporting unit’s carrying value over its respective fair value. Encana is currently in the early stages of reviewing the amendment.

 

 2.     Segmented Information

 

Encana’s reportable segments are determined based on the Company’s operations and geographic locations as follows:

 

 

Canadian Operations includes the exploration for, development of, and production of natural gas, oil and NGLs and other related activities within the Canadian cost centre.

 

 

USA Operations includes the exploration for, development of, and production of natural gas, oil and NGLs and other related activities within the U.S. cost centre.

 

 

Market Optimization is primarily responsible for the sale of the Company’s proprietary production. These results are reported in the Canadian and USA Operations. Market optimization activities include third party purchases and sales of product to provide operational flexibility and cost mitigation for transportation commitments, product type, delivery points and customer diversification. These activities are reflected in the Market Optimization segment. Market Optimization sells substantially all of the Company’s upstream production to third party customers. Transactions between segments are based on market values and are eliminated on consolidation.

Corporate and Other mainly includes unrealized gains or losses recorded on derivative financial instruments. Once the instruments are settled, the realized gains and losses are recorded in the reporting segment to which the derivative instruments relate.

 

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Results of Operations

Segment and Geographic Information

 

      Canadian Operations      USA Operations      Market Optimization  
For the years ended December 31    2016        2015     2014        2016        2015        2014        2016        2015       2014    
   

Revenues

                        

Product revenues

   $     952        $ 1,309     $     3,340        $ 1,491        $ 2,041        $     2,898        $ -        $ -       $ -    

Gains (losses) on risk management, net

     107          495       (56)         255          425          (25)         (1)         (3)        (3)   

Market optimization

     -          -       -          -          -          -          647          368             1,251    

Other

     8          18       26          24          25          29          -          -         -    

Total Revenues

     1,067          1,822       3,310              1,770              2,491          2,902          646          365         1,248    
   

Operating Expenses

                        

Production, mineral and other taxes

     23          28       64          76          116          146          -          -         -    

Transportation and processing

     576          654       826          260          580          658          87          12         -    

Operating

     152          152       274          394          519          326          35          33         39    

Purchased product

     -          -       -          -          -          -              586          323         1,191    

Depreciation, depletion and amortization

     260          305       625          523          1,088          992          -          -         4    

Impairments

     493          -       -          903          6,473          -          -          -         -    

Total Operating Expenses

     1,504              1,139       1,789          2,156          8,776          2,122          708            368         1,234    

Operating Income (Loss)

   $     (437)       $ 683     $ 1,521        $ (386)       $ (6,285)       $ 780        $ (62)       $ (3)      $ 14    
                        
                             Corporate & Other      Consolidated  
                             2016        2015        2014        2016        2015       2014    
 

Revenues

                        

Product revenues

           $     -        $ -        $ -        $ 2,443         $ 3,350       $ 6,238    

Gains (losses) on risk management, net

             (636)         (325)         456          (275)          592         372    

Market optimization

             -          -          -          647           368         1,251    

Other

                               71          69          103          103           112         158    

Total Revenues

                               (565)         (256)         559          2,918           4,422         8,019    
 

Operating Expenses

                        

Production, mineral and other taxes

             -          -          -          99           144         210    

Transportation and processing

             (22)         6          12          901           1,252         1,496    

Operating

             17          19          28          598           723         667    

Purchased product

             -          -          -          586           323         1,191    

Depreciation, depletion and amortization

 

          76          95          124          859           1,488         1,745    

Impairments

             -          -          -          1,396           6,473         -    

Accretion of asset retirement obligation

             51          45          52          51           45         52    

Administrative

                               309              275          327          309           275         327    

Total Operating Expenses

                               431          440          543              4,799           10,723         5,688    

Operating Income (Loss)

                             $ (996)       $ (696)       $ 16          (1,881)          (6,301)        2,331    
 

Other (Income) Expenses

                        

Interest

                      397           614         654    

Foreign exchange (gain) loss, net

                      (210)          1,082         403    

(Gain) loss on divestitures, net

                      (390)          (14)        (3,426)   

Other (gains) losses, net

                                                          (58)          27         71    

Total Other (Income) Expenses

                                                          (261)          1,709         (2,298)   

Net Earnings (Loss) Before Income Tax

 

                   (1,620)          (8,010)        4,629    

Income tax expense (recovery)

                                                          (676)          (2,845)        1,203    

Net Earnings (Loss)

                      (944)          (5,165)        3,426    

Net earnings attributable to noncontrolling interest

 

                                        -           -         (34)   

Net Earnings (Loss) Attributable to Common Shareholders

 

                              $ (944)        $     (5,165)      $     3,392    

 

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Intersegment Information

 

     Market Optimization  
     Marketing Sales     Upstream Eliminations     Total  
For the years ended December 31   2016     2015     2014     2016     2015     2014     2016     2015     2014  

Revenues

  $   3,304        $   4,309        $   7,371        $   (2,658)       $   (3,944)       $   (6,123)       $   646        $   365        $   1,248     

Operating Expenses

                 

Transportation and processing

    279          348          458          (192)         (336)         (458)         87          12          -     

Operating

    35          33          62          -          -          (23)         35          33          39     

Purchased product

    3,052          3,931          6,822          (2,466)         (3,608)         (5,631)         586          323          1,191     

Depreciation, depletion and amortization

    -          -          4          -          -          -          -          -          4     

Operating Income (Loss)

  $ (62)       $ (3)       $ 25        $ -        $ -        $ (11)       $ (62)       $ (3)       $ 14     

Capital Expenditures

 

For the years ended December 31    2016     2015      2014  

Canadian Operations

   $ 256     $ 380      $ 1,226  

USA Operations

     873       1,847        1,285  

Market Optimization

     1       1        -  

Corporate & Other

     2       4        15  
     $             1,132     $             2,232      $             2,526  

Goodwill, Property, Plant and Equipment and Total Assets by Segment

 

    Goodwill     Property, Plant and Equipment     Total Assets (1)  
As at December 31   2016     2015     2016     2015     2016     2015  

Canadian Operations

  $ 650     $ 661     $ 602     $ 1,100     $ 1,542     $ 2,036  

USA Operations

    2,129       2,129       6,050       7,249       9,535       10,405  

Market Optimization

    -       -       2       1       105       95  

Corporate & Other

    -       -       1,485       1,507       3,471       3,078  
    $             2,779     $             2,790     $             8,139     $             9,857     $             14,653     $             15,614  
(1)  

Total Assets for 2015 has been restated due to the adoption of ASU 2015-03, “Simplifying the Presentation of Debt Issuance Costs”, as described in Note 1.

Goodwill, Property, Plant and Equipment and Total Assets by Geographic Region

 

    Goodwill     Property, Plant and Equipment     Total Assets (1)  
As at December 31   2016     2015     2016     2015     2016     2015  

Canada

  $ 650     $ 661     $ 2,000     $ 2,495     $ 4,732     $ 5,033  

United States

    2,129       2,129       6,139       7,362       9,902       10,570  

Other Countries

    -       -       -       -       19       11  
    $             2,779     $             2,790     $             8,139     $             9,857     $             14,653     $             15,614  
(1)  

Total Assets for 2015 has been restated due to the adoption of ASU 2015-03, “Simplifying the Presentation of Debt Issuance Costs”, as described in Note 1.

Export Sales

Sales of natural gas and liquids produced or purchased in Canada delivered to customers outside of Canada were $50 million (2015 – $153 million; 2014 – $338 million).

 

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Major Customers

In connection with the marketing and sale of Encana’s own and purchased natural gas and liquids for the year ended December 31, 2016, the Company had two customers which individually accounted for more than 10 percent of Encana’s product revenues. Sales to these customers, which have investment grade credit ratings, were approximately $434 million and $343 million which comprised $99 million in Canada and $678 million in the United States (2015 – two customers with sales of approximately $447 million and $414 million, respectively; 2014 – one customer with sales of approximately $1,043 million).

 

 3.     Business Combinations

Eagle Ford Acquisition

On June 20, 2014, Encana completed the acquisition of properties located in the Eagle Ford shale formation for approximately $2.9 billion, after closing adjustments. The acquisition included an interest in certain producing properties and undeveloped lands in the Karnes, Wilson and Atascosa counties of south Texas. Encana funded the acquisition with cash on hand. Transaction costs of approximately $9 million were included in other (gains) losses. The assets acquired generated revenues of $585 million and net earnings of $222 million for the period from June 20, 2014 to December 31, 2014.

Athlon Energy Inc. Acquisition

On November 13, 2014, Encana completed the acquisition of all of the issued and outstanding shares of common stock of Athlon Energy Inc. (“Athlon”) for $5.93 billion, or $58.50 per share. In addition, Encana assumed Athlon’s $1.15 billion senior notes and repaid and terminated Athlon’s credit facility with indebtedness outstanding of $335 million. Encana funded the acquisition of Athlon with cash on hand. Transaction costs of approximately $31 million were included in other (gains) losses. Following completion of the acquisition, Athlon’s $1.15 billion senior notes were redeemed in accordance with the provisions of the governing indentures. Athlon’s operations focused on the acquisition and development of oil and gas properties located in the Permian Basin in west Texas. The assets acquired generated revenues of $176 million and a net loss of $3 million for the period from November 13, 2014 to December 31, 2014.

Purchase Price Allocations

The transactions were accounted for under the acquisition method, which requires that the assets acquired and liabilities assumed be recognized at their fair values as of the acquisition date. The final purchase price allocations are recognized in the USA Operations and represent the consideration paid and the fair values of the assets acquired and liabilities assumed as of the acquisition date, as shown in the table below.

 

Purchase Price Allocation    Eagle Ford         Athlon  (1)      

Assets Acquired:

     

Cash

   $ -         $ 2     

Accounts receivable and other current assets

     4           133     

Risk management

     -           80     

Proved properties

                 2,873                       2,124     

Unproved properties

     78           5,338     

Other property, plant and equipment

     -           2     

Other assets

     -           2     

Goodwill

     -           1,724     

Liabilities Assumed:

     

Accounts payable and accrued liabilities

     -           (195)    

Long-term debt, including revolving credit facility

     -           (1,497)    

Asset retirement obligation

     (32)          (25)    

Deferred income taxes

     -           (1,724)    

Total Purchase Price

   $ 2,923         $ 5,964     
(1)  

The purchase price includes cash consideration paid for issued and outstanding shares of common stock of Athlon of $58.50 per share totaling $5.93 billion, as well as payments to terminate certain employment agreements with Athlon’s management and payments for certain other existing obligations of Athlon.

 

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The Company used the income approach valuation technique for the fair value of assets acquired and liabilities assumed. The carrying amounts of cash, accounts receivable and other current assets, and accounts payable and accrued liabilities approximate their fair values due to the short-term maturity of the instruments. The fair values of the risk management assets and long-term debt, including the revolving credit facility, were categorized within Level 2 of the fair value hierarchy and were determined using quoted prices and rates from an available pricing source. The fair values of the proved and unproved properties, other property, plant and equipment, other assets, goodwill, and asset retirement obligation were categorized within Level 3 and were determined using relevant market assumptions, including discount rates, future commodity prices and costs, timing of development activities, projections of oil and gas reserves, and estimates to abandon and reclaim producing wells.

Goodwill arose from the Athlon acquisition primarily from the requirement to recognize deferred taxes on the difference between the fair value of the assets acquired and liabilities assumed and the respective carry-over tax basis. Goodwill is not amortized and is not deductible for tax purposes.

Unaudited Pro Forma Financial Information

The following unaudited pro forma financial information combines the historical financial results of Encana with Eagle Ford and Athlon, and has been prepared assuming the acquisitions occurred on January 1, 2014. The pro forma information is not intended to reflect the actual results of operations that would have occurred if the business combinations had been completed at the date indicated. In addition, the pro forma information does not project Encana’s results of operations for any future period. The Company’s consolidated results for the years ended December 31, 2016 and 2015 include the results from Eagle Ford and Athlon.

 

For the year ended December 31, 2014 (US$ millions, except per share amounts)    Eagle Ford        Athlon      

Revenues

   $         8,760        $       8,572      

Net Earnings Attributable to Common Shareholders

   $ 3,641        $ 3,486      

Net Earnings per Common Share

       

Basic & Diluted

   $ 4.91        $ 4.71      

 

 4.     Acquisitions and Divestitures

 

For the years ended December 31    2016         2015         2014     

Acquisitions

        

Canadian Operations

   $ 1         $ 9         $ 21    

USA Operations

                         209           27                         2,995    

Corporate & Other

     -           34           -    

Total Acquisitions

     210                             70           3,016    

Divestitures

        

Canadian Operations

     (456)          (959)          (1,847)   

USA Operations

     (806)          (896)          (2,264)   

Market Optimization

     -           -           (205)   

Corporate & Other

     -           (53)          (29)   

Total Divestitures

     (1,262)          (1,908)          (4,345)   

Net Acquisitions & (Divestitures)

   $ (1,052)        $ (1,838)        $ (1,329)   

ACQUISITIONS

Acquisitions in 2016 in the USA Operations primarily included the purchase of natural gas gathering and water handling assets in Piceance located in Colorado and the purchase of land and property in Eagle Ford with oil and liquids rich potential. Acquisitions in 2014 primarily included the purchase of certain properties in the Eagle Ford shale formation in south Texas as described in Note 3.

 

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DIVESTITURES

For the year ended December 31, 2016, amounts received from the sale of assets were $1,262 million (2015 – $1,908 million; 2014 – $4,345 million). In 2016, divestitures were $456 million in the Canadian Operations and $806 million in the USA Operations.

Amounts received from the Company’s divestiture transactions have been deducted from the respective Canadian and U.S. full cost pools, except for divestitures that result in a significant alteration between capitalized costs and proved reserves in a country cost centre. For divestitures that result in a gain or loss and constitute a business, goodwill is allocated to the divestiture.

Canadian Operations

In 2016, divestitures in the Canadian Operations primarily included the sale of the Gordondale assets in Montney located in northwestern Alberta for proceeds of approximately C$600 million ($455 million), after closing adjustments. For the year ended December 31, 2016, Encana recognized a gain of approximately $394 million, before tax, on the sale of the Gordondale assets in the Canadian cost centre and allocated goodwill of $32 million.

In 2015, divestitures in the Canadian Operations primarily included the sale of certain assets in Wheatland located in central and southern Alberta for proceeds of approximately C$557 million ($467 million), after closing adjustments, the sale of certain natural gas gathering and compression assets in Montney located in northeastern British Columbia for proceeds of approximately C$450 million ($355 million), after closing adjustments, and the sale of certain properties that did not complement Encana’s existing portfolio of assets.

In 2014, divestitures in the Canadian Operations primarily included the sale of the Company’s Bighorn assets located in west central Alberta for approximately $1,725 million, after closing adjustments. For the year ended December 31, 2014, Encana recognized a gain of approximately $1,014 million, before tax, on the sale of the Bighorn assets in the Canadian cost centre and allocated goodwill of $257 million.

USA Operations

In 2016, divestitures in the USA Operations primarily included the sale of the DJ Basin assets located in northern Colorado for proceeds of approximately $633 million, after closing and other adjustments, as well as the sale of certain natural gas leasehold interests in Piceance located in Colorado for proceeds of approximately $135 million.

In 2015, divestitures in the USA Operations primarily included the sale of the Haynesville natural gas assets located in northern Louisiana for proceeds of approximately $769 million, after closing adjustments, and the sale of certain properties that did not complement Encana’s existing portfolio of assets.

In 2014, divestitures in the USA Operations primarily included the sale of the Jonah properties located in Wyoming for proceeds of approximately $1,636 million, after closing adjustments, and the sale of certain properties in East Texas for proceeds of approximately $495 million, after closing adjustments. For the year ended December 31, 2014, Encana recognized a gain of approximately $209 million, before tax, on the sale of the Jonah properties in the U.S. cost centre and allocated goodwill of $68 million.

Market Optimization

For the year ended December 31, 2014, divestitures in Market Optimization were $205 million and primarily related to the sale of the Company’s electricity generation assets.

 

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Corporate and Other

For the year ended December 31, 2015, Corporate and Other acquisitions and divestitures primarily included the purchase and subsequent sale of the Encana Place office building located in Calgary, which resulted in a gain on divestiture of approximately $12 million.

OTHER CAPITAL TRANSACTIONS

The following transactions involved the acquisition or disposition of common shares and, therefore, have been excluded from the acquisitions and divestitures table above.

Acquisition of Athlon

On November 13, 2014, Encana acquired all of the issued and outstanding shares of common stock of Athlon for $5.93 billion, or $58.50 per share. See Note 3 for further details regarding the Athlon transaction.

Divestiture of Investment in PrairieSky

On September 26, 2014, Encana completed the secondary offering of 70.2 million common shares of PrairieSky at a price of C$36.50 per common share for aggregate gross proceeds of approximately C$2.6 billion. As the sale of the investment in PrairieSky resulted in a significant alteration between capitalized costs and proved reserves in the Canadian cost centre, Encana recognized a gain on divestiture of approximately $2.1 billion, before tax. See Note 18 for further details regarding the PrairieSky transactions.

 

 5.     Interest

 

For the years ended December 31    2016        2015      2014    

Interest Expense on:

        

Debt

   $                     296         $                 497       $                 509     

The Bow office building

     62           65         75     

Capital leases

     24           28         37     

Other

     15           24         33     
     $ 397         $ 614       $ 654     

Interest Expense on Debt for the year ended December 31, 2015 included a one-time interest payment of approximately $165 million resulting from the April 2015 early redemption of the Company’s $700 million 5.90 percent notes due December 1, 2017 and C$750 million 5.80 percent medium-term notes due January 18, 2018 as discussed in Note 13.

Interest Expense on Debt for the year ended December 31, 2014 included a one-time outlay of approximately $125 million associated with the early redemption of senior notes assumed in conjunction with the Athlon acquisition as discussed in Note 3.

 

 6.     Foreign Exchange (Gain) Loss, Net

 

For the years ended December 31    2016        2015     2014     

Unrealized Foreign Exchange (Gain) Loss on:

       

Translation of U.S. dollar debt issued from Canada

   $ (130)         $ 754      $ 456      

Translation of U.S. dollar risk management contracts issued from Canada

     4            (67     (16)     

Translation of intercompany notes

     (14)           -        -      
     (140)           687        440      

Foreign Exchange on Settlements

     (68)           358        28      

Other Monetary Revaluations

     (2)           37        (65)     
     $                     (210)         $                 1,082      $                 403      

 

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 7.     Income Taxes

The provision for income taxes is as follows:

 

For the years ended December 31    2016         2015     2014     

Current Tax

       

Canada

   $ (82)        $ (25   $ 249     

United States

     -           (17     (21)    

Other Countries

     4          8                       15     

Total Current Tax Expense (Recovery)

     (78)          (34     243     

Deferred Tax

       

Canada

     (163)          (316     713     

United States

     (435)          (2,495     246     

Other Countries

     -           -       1     

Total Deferred Tax Expense (Recovery)

     (598)          (2,811     960     

Income Tax Expense (Recovery)

   $                 (676)        $                 (2,845   $ 1,203     

The following table reconciles income taxes calculated at the Canadian statutory rate with the actual income taxes:

 

For the years ended December 31    2016         2015     2014     

Net Earnings (Loss) Before Income Tax

       

Canada

   $ (627)        $ (2,014   $ 3,744     

United States

     (1,522)          (6,963     665     

Other Countries

     529           967       220     

Total Net Earnings (Loss) Before Income Tax

     (1,620)          (8,010     4,629     

Canadian Statutory Rate

     27.0%           26.4%       25.7%  

Expected Income Tax

     (437)          (2,115     1,190     

Effect on Taxes Resulting From:

       

Income tax related to foreign operations

     (266)          (776     1     

Effect of legislative changes

     -           (11     -     

Non-taxable capital (gains) losses

     (29)          132       64     

Tax differences on divestitures and transactions

     9           (8     8     

Partnership tax allocations in excess of funding

     (17)          (21     (53)    

Amounts in respect of prior periods

     (11)          (8     (19)    

Change in valuation allowance

     121           -       6     

Other

     (46)          (38     6     
     $                 (676)          $            (2,845   $             1,203     

Effective Tax Rate

     41.7%           35.5%       26.0%  

 

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The net deferred income tax asset (liability) consists of:

 

As at December 31    2016         2015     

Deferred Income Tax Assets

     

Property, plant and equipment

   $ 256         $ 226     

Risk management

     81           -     

Compensation plans

     100           72     

Interest and other deferred deductions

     48           224     

Unrealized foreign exchange losses

     20            36     

Non-capital and net capital losses carried forward

     1,149           1,009     

Alternative minimum tax and foreign tax credits

     208           208     

Other

     72           99     

Less: valuation allowance

     (133)          (12)    

Deferred Income Tax Liabilities

     

Property, plant and equipment

     (155)          (660)    

Risk management

     -           (122)    

Other

     (19)          (23)    

Net Deferred Income Tax Asset (Liability)

   $                 1,627         $                 1,057     

As at December 31, 2016, Encana has recorded a valuation allowance against U.S. foreign tax credits and U.S. charitable donations in the amounts of $129 million (2015 – $12 million) and $4 million (2015 – nil), respectively, as it is more likely than not that these benefits will not be realized based on expected future taxable earnings as determined in accordance with the Company’s accounting policies.

The net deferred income tax asset (liability) for the following jurisdictions is reflected in the Consolidated Balance Sheet as follows:

 

As at December 31    2016         2015     

Deferred Income Tax Assets

     

Canada

   $ 568         $ 411     

United States

     1,090           670     
     1,658           1,081     

Deferred Income Tax Liabilities

     

Canada

     (31)          (24)    

United States

     -           -     
       (31)          (24)    

Net Deferred Income Tax Asset (Liability)

   $                 1,627         $                 1,057     

Tax pools, loss carryforwards, charitable donations and tax credits available are as follows:

 

As at December 31    2016        Expiration Date    

Canada

     

Tax pools

   $ 1,191        Indefinite    

Net capital losses

     20        Indefinite    

Non-capital losses

     481        2027 – 2036    

Charitable donations

     2        2021    

United States

     

Tax basis

   $                 5,314        Indefinite    

Non-capital losses (Federal)

     2,826        2031 – 2036    

Charitable donations

     11        2019 – 2022    

Alternative minimum tax credits

     10        Indefinite    

Foreign tax credits

     198        2021 – 2025    

 

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As at December 31, 2016, approximately $2.7 billion of Encana’s unremitted earnings from its foreign subsidiaries were considered to be permanently reinvested outside of Canada and, accordingly, Encana has not recognized a deferred tax liability for Canadian income taxes in respect of such earnings. If such earnings were to be remitted to Canada, Encana may be subject to Canadian income taxes and foreign withholding taxes. However, determination of any potential amount of unrecognized deferred income tax liabilities is not practicable.

The following table presents changes in the balance of Encana’s unrecognized tax benefits excluding interest:

 

For the years ended December 31    2016         2015     

Balance, Beginning of Year

   $ (317)         $ (382)     

Additions for tax positions taken in the current year

     -            -      

Additions for tax positions of prior years

     (1)           (6)     

Reductions for tax positions of prior years

     -                            1      

Lapse of statute of limitations

                     42            4      

Settlements

     -            5      

Foreign currency translation

     (10)           61      

Balance, End of Year

   $ (286)         $ (317)     

 

The unrecognized tax benefit is reflected in the Consolidated Balance Sheet as follows:

 

  

For the years ended December 31    2016         2015     

Income tax receivable

   $ (21)         $ (61)     

Other liabilities and provisions (See Note 14)

                     (193)                           (189)     

Deferred income tax asset

     (72)           (67)     

Balance, End of Year

   $ (286)         $ (317)     

If recognized, all of Encana’s unrecognized tax benefits as at December 31, 2016 would affect Encana’s effective income tax rate. Encana does not anticipate that the amount of unrecognized tax benefits will significantly change during the next 12 months.

Encana recognizes interest accrued in respect of unrecognized tax benefits in interest expense. During 2016, Encana recognized $1 million (2015 – $2 million; 2014 – $1 million) in interest expense. As at December 31, 2016, Encana had a liability of $4 million (2015 – $3 million) for interest accrued in respect of unrecognized tax benefits.

Included below is a summary of the tax years, by jurisdiction, that remain subject to examination by the taxation authorities.

 

Jurisdiction   Taxation Year

Canada - Federal

  2009 – 2016

Canada - Provincial

  2009 – 2016

United States - Federal

  2013 – 2016

United States - State

  2012 – 2016

Other

  2015 – 2016

Encana and its subsidiaries file income tax returns primarily in Canada and the United States. Issues in dispute for audited years and audits for subsequent years are ongoing and in various stages of completion.

 

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 8.     Accounts Receivable and Accrued Revenues

 

As at December 31    2016         2015     

Trade Receivables and Accrued Revenues

     

Oil and natural gas

   $               394         $               293     

Midstream and marketing

     161           130     

Derivative financial instruments

     4           52     

Corporate and other

     81           131     

Total Trade Receivables and Accrued Revenues

     640           606     

Prepaids

     18           25     

Deposits and Other

     11           18     
     669           649     

Allowance for Doubtful Accounts

     (6)          (4)    
     $ 663         $ 645     

Encana’s trade receivables balance consists of oil and gas sales receivables, marketing revenues and joint interest receivables. Trade receivables are non-interest bearing. In determining the recoverability of trade receivables, the Company considers the age of the outstanding receivable and the credit worthiness of the counterparties. The Company charges uncollectible trade receivables to the allowance for doubtful accounts when it is determined no longer collectible. See Note 24 for further information about credit risk.

 

 9.     Property, Plant and Equipment, Net

 

As at December 31    2016      2015  

 

   Cost         Accumulated   
DD&A   
     Net         Cost         Accumulated   
DD&A      
     Net     

Canadian Operations

                   

Proved properties

   $     13,159         $ (12,896)        $     263         $     14,866         $     (14,170)        $     696     

Unproved properties

     285           -           285           334           -           334     

Other

     54           -           54           70           -           70     
       13,498           (12,896)          602           15,270           (14,170)          1,100     

USA Operations

                   

Proved properties

     26,393           (25,300)          1,093           25,723           (23,822)          1,901     

Unproved properties

     4,913           -           4,913           5,282           -           5,282     

Other

     44           -           44           66           -           66     
       31,350               (25,300)          6,050           31,071           (23,822)          7,249     

Market Optimization

     6           (4)          2           5           (4)          1     

Corporate & Other

     2,148           (663)          1,485           2,098           (591)          1,507     
     $ 47,002         $ (38,863)        $     8,139         $ 48,444         $ (38,587)        $     9,857     

Canadian Operations and USA Operations property, plant and equipment include internal costs directly related to exploration, development and construction activities of $161 million, which have been capitalized during the year ended December 31, 2016 (2015 – $217 million). Included in Corporate and Other are $58 million (2015 – $58 million) of international property costs, which have been fully impaired.

For the year ended December 31, 2016, the Company recognized before-tax ceiling test impairments of $493 million (2015 – nil; 2014 – nil) in the Canadian cost centre and $903 million (2015 – $6,473 million; 2014 – nil) in the U.S. cost centre. The impairments are included with accumulated DD&A in the table above and resulted primarily from the decline in the 12-month average trailing prices which reduced proved reserves volumes and values.

The 12-month average trailing prices used in the ceiling test calculations reflect benchmark prices adjusted for basis differentials to determine local reference prices, transportation costs and tariffs, heat content and quality. The benchmark prices are disclosed in Note 27.

 

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Capital Lease Arrangements

The Company has several lease arrangements that are accounted for as capital leases including an office building and an offshore production platform.

As at December 31, 2016, the total carrying value of assets under capital lease was $51 million (2015 – $376 million), net of accumulated amortization of $648 million (2015 – $310 million). Liabilities for the capital lease arrangements are included in other liabilities and provisions in the Consolidated Balance Sheet and are disclosed in Note 14.

Other Arrangement

As at December 31, 2016, Corporate and Other property, plant and equipment and total assets include a carrying value of $1,194 million (2015 – $1,179 million) related to The Bow office building, which is under a 25-year lease agreement. The Bow asset is being depreciated over the 60-year estimated life of the building. At the conclusion of the 25-year term in 2037, the remaining asset and corresponding liability are expected to be derecognized as disclosed in Note 14.

 

 10.   Other Assets

 

As at December 31    2016           2015  (1)      

Long-Term Investments

   $ 26          $ 161      

Long-Term Receivables

     71            70      

Deferred Charges

     9            11      

Other

     30            24      
     $             136          $             266      
(1)  

Other Assets for 2015 has been restated due to the adoption of ASU 2015-03, “Simplifying the Presentation of Debt Issuance Costs”, as described in Note 1.

 

 11.    Goodwill

 

As at December 31    2016         2015     

Canada

     

Balance, Beginning of Year

   $ 661          $ 788      

Divested During the Year (See Note 4)

     (32)           -      

Foreign Currency Translation Adjustment

     21            (127)     

Balance, End of Year

     650            661      

United States

     

Balance, Beginning and End of Year

     2,129            2,129      

Total Goodwill

   $             2,779          $             2,790      

During 2016, the Company derecognized goodwill of $32 million upon the divestiture of the Gordondale assets as described in Note 4. There were no additions or dispositions of goodwill during 2015.

Goodwill was assessed for impairment as at December 31, 2016 and December 31, 2015. The fair values of the Canada and United States reporting units were determined to be greater than the respective carrying values of the reporting units. Accordingly, no goodwill impairments were recognized. The Company has not recognized any historical cumulative goodwill impairments.

 

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 12.   Accounts Payable and Accrued Liabilities

 

As at December 31    2016         2015     

Trade Payables

   $ 240         $ 254     

Capital Accruals

     280           257     

Royalty and Production Accruals

     300           345     

Other Accruals

     234           252     

Interest Payable

     69           80     

Current Portion of Long-Term Incentive Costs (See Note 21)

     88           28     

Current Portion of Capital Lease Obligations (See Note 14)

     59           54     

Current Portion of Asset Retirement Obligation (See Note 15)

     33           41     
     $             1,303         $             1,311     

Payables and accruals are non-interest bearing. Interest payable represents amounts accrued related to Encana’s unsecured notes as disclosed in Note 13.

 

 13.   Long-Term Debt

 

As at December 31    Note      2016         2015     

U.S. Dollar Denominated Debt

        

Revolving credit and term loan borrowings

     A      $ -         $ 650     

U.S. Unsecured Notes:

     B        

6.50% due May 15, 2019

        500           500     

3.90% due November 15, 2021

        600           600     

8.125% due September 15, 2030

        300           300     

7.20% due November 1, 2031

        350           350     

7.375% due November 1, 2031

        500           500     

6.50% due August 15, 2034

        750           750     

6.625% due August 15, 2037 (1)

        462           500     

6.50% due February 1, 2038 (1)

        505           800     

5.15% due November 15, 2041 (1)

              244           400     

 

Total Principal

     F        4,211           5,350     

 

Increase in Value of Debt Acquired

     C        26           27     

Unamortized Debt Discounts and Issuance Costs (2)

     D        (39)          (44)    

Current Portion of Long-Term Debt

     E        -           -     
              $             4,198         $             5,333     
(1)  

Notes for accepted for purchase in the March 2016 Tender Offers.

(2)  

Long-Term Debt for 2015 has been restated due to the adoption of ASU 2015-03, “Simplifying the Presentation of Debt Issuance Costs”, as described in Note 1.

 

A)

REVOLVING CREDIT AND TERM LOAN BORROWINGS

U.S. Dollar Denominated Revolving Credit and Term Loan Borrowings

At December 31, 2016, Encana had in place committed revolving bank credit facilities totaling $4.5 billion which included $3.0 billion on a revolving bank credit facility for Encana and $1.5 billion on a revolving bank credit facility for a U.S. subsidiary. The facilities are extendible from time to time, but not more than once per year, for a period not longer than five years plus 90 days from the date of the extension request, at the option of the lenders and upon notice from Encana. The facilities mature in July 2020, and are fully revolving up to maturity.

Encana is subject to a financial covenant in its credit facility agreements whereby financing debt to adjusted capitalization cannot exceed 60 percent. Financing debt primarily includes total long-term debt and capital lease obligations. Adjusted capitalization is calculated as the sum of total financing debt, shareholders’ equity and a $7.7 billion equity adjustment for cumulative historical ceiling test impairments recorded as at December 31, 2011 in conjunction with the Company’s January 1, 2012 adoption of U.S. GAAP. As at December 31, 2016, the Company is in compliance with all financial covenants.

 

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The Encana facility, which remained unused at December 31, 2016, is unsecured and bears interest at the lenders’ rates for Canadian prime, U.S. base rate, Bankers’ Acceptances or LIBOR, plus applicable margins. The U.S. subsidiary facility, which remained unused as at December 31, 2016, bears interest at either the lenders’ U.S. base rate or LIBOR, plus applicable margins.

Standby fees paid in 2016 relating to revolving credit and term loan agreements were approximately $14 million (2015 – $11 million; 2014 – $12 million).

 

B)

UNSECURED NOTES

Shelf Prospectuses

In 2016, Encana filed shelf prospectuses in Canada and the U.S., whereby the Company may issue from time to time up to $6.0 billion, or the equivalent in foreign currencies, of debt securities, common shares, Class A preferred shares, subscription receipts, warrants, units, share purchase contracts and share purchase units in Canada and/or the U.S. In September 2016 and March 2015, the Company filed prospectus supplements for the issuance of common shares as described in Note 16. At December 31, 2016, $4.8 billion remained accessible under the shelf prospectuses, the availability of which is dependent upon market conditions.

U.S. Unsecured Notes

Unsecured notes include medium-term notes and senior notes that are issued from time to time under trust indentures and have equal priority with respect to the payment of both principal and interest.

On March 16, 2016, Encana announced tender offers (collectively, the “Tender Offers”) for certain of the Company’s outstanding senior notes (collectively, the “Notes”). The Tender Offers were for an aggregate purchase price of $250 million, excluding accrued and unpaid interest. The consideration for each $1,000 principal amount of Notes validly tendered and accepted for purchase included an early tender premium of $30 per $1,000 principal amount of Notes accepted for purchase, provided the Notes were validly tendered at or prior to the early tender date of March 29, 2016. All Notes validly tendered and accepted for purchase also received accrued and unpaid interest up to the settlement date.

On March 30, 2016, Encana announced an increase in the aggregate purchase price of the Tender Offers to $400 million, excluding accrued and unpaid interest, and accepted for purchase: i) $156 million aggregate principal amount of 5.15 percent notes due 2041; ii) $295 million aggregate principal amount of 6.50 percent notes due 2038; and iii) $38 million aggregate principal amount of 6.625 percent notes due 2037. The Company paid an aggregate amount of $406 million, including accrued and unpaid interest of $6 million and an early tender premium of $14 million, for Notes accepted for purchase. The Company used cash on hand and borrowings under its revolving credit facility to fund the Tender Offers.

Encana also recognized a gain on the early debt retirement of $103 million, before tax, representing the difference between the carrying amount of the Notes accepted for purchase and the consideration paid. The gain on the early debt retirement net of the early tender premium totals $89 million, which is included in other (gains) losses in the Consolidated Statement of Earnings.

On March 5, 2015, Encana provided notice to noteholders that it would redeem the Company’s $700 million 5.90 percent notes due December 1, 2017 and C$750 million 5.80 percent medium-term notes due January 18, 2018. On April 6, 2015, the Company used net proceeds from the common shares issued, as disclosed in Note 16, and cash on hand to complete the note redemptions. In conjunction with the early note redemptions, the Company incurred a one-time interest payment of approximately $165 million as discussed in Note 5.

 

C)

INCREASE IN VALUE OF DEBT ACQUIRED

Certain of the notes and debentures of the Company were acquired in business combinations and were accounted for at their fair value at the dates of acquisition. The difference between the fair value and the principal amount of the debt is being amortized over the remaining life of the outstanding debt acquired, which is approximately 14 years.

 

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D)

UNAMORTIZED DEBT DISCOUNTS AND ISSUANCE COSTS

Long-term debt premiums and discounts are capitalized within long-term debt and are being amortized using the effective interest method. During 2016 and 2015, no debt discounts were capitalized. Issuance costs are amortized over the term of the related debt.

 

E)

CURRENT PORTION OF LONG-TERM DEBT

As at December 31, 2016 and 2015, there was no current portion of long-term debt.

 

F)

MANDATORY DEBT PAYMENTS

 

As at December 31    Principal   
Amount   
     Interest   
Amount   
 

2017

   $  -         $ 267     

2018

     -           267     

2019

     500           250     

2020

     -           235     

2021

     600           235     

Thereafter

     3,111           2,757     

Total

   $             4,211         $             4,011     

As at December 31, 2016, total long-term debt had a carrying value of $4,198 million and a fair value of $4,553 million (2015 – carrying value of $5,333 million and a fair value of $4,630 million). The estimated fair value of long-term borrowings is categorized within Level 2 of the fair value hierarchy and has been determined based on market information, or by discounting future payments of interest and principal at interest rates expected to be available to the Company at period end.

 

 14.   Other Liabilities and Provisions

 

As at December 31    2016         2015     

The Bow Office Building

   $ 1,266         $ 1,238     

Capital Lease Obligations

     304           353     

Unrecognized Tax Benefits (See Note 7)

     193           189     

Pensions and Other Post-Employment Benefits

     124           115     

Long-Term Incentive Costs (See Note 21)

     120           23     

Other Derivative Contracts (See Notes 23, 24)

     14           23     

Other

     26           34     
     $             2,047         $             1,975     

The Bow Office Building

As described in Note 9, Encana has recognized the accumulated costs for The Bow office building, which is under a 25-year lease agreement. At the conclusion of the 25-year term, the remaining asset and corresponding liability are expected to be derecognized. Encana has also subleased part of The Bow office space to a subsidiary of Cenovus Energy Inc. (“Cenovus”).

The total expected future principal and interest payments related to the 25-year lease agreement and the total undiscounted future amounts expected to be recovered from the Cenovus sublease are outlined below.

 

 

   2017         2018         2019         2020         2021         Thereafter         Total     

Expected Future Lease Payments

   $ 71         $ 71         $ 72         $ 72         $ 73         $ 1,282         $ 1,641     

Less: Amounts Representing Interest

     61           60           60           59           59           807           1,106     

Present Value of Expected Future

                    

Lease Payments

   $ 10         $ 11         $ 12         $ 13         $ 14         $ 475         $ 535     

Sublease Recoveries (undiscounted)

   $     (34)        $     (35)        $     (35)        $     (35)        $     (35)        $     (632)        $     (806)    

 

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Capital Lease Obligations

As described in Note 9, the Company has several lease arrangements that are accounted for as capital leases including an office building and the Deep Panuke offshore Production Field Centre (“PFC”). Variable interests related to the PFC are described in Note 19.

The total expected future lease payments related to the Company’s capital lease obligations are outlined below.

 

 

   2017         2018         2019         2020         2021         Thereafter         Total     

Expected Future Lease Payments

   $ 98          $ 99          $ 99          $ 99          $ 87          $ 46          $ 528      

Less: Amounts Representing Interest

     39            36            33            29            21            7            165      

Present Value of Expected Future

                    

Lease Payments

   $     59          $     63          $     66          $     70          $     66          $     39          $     363      

 

 15.   Asset Retirement Obligation

 

As at December 31    2016         2015     

Asset Retirement Obligation, Beginning of Year

   $ 814          $ 913      

Liabilities Incurred and Acquired

     18            19      

Liabilities Settled and Divested

     (107)           (217)     

Change in Estimated Future Cash Outflows

     (99)           115      

Accretion Expense

     51            45      

Foreign Currency Translation

     10            (61)     

Asset Retirement Obligation, End of Year

   $ 687          $ 814      

Current Portion (See Note 12)

   $ 33          $ 41      

Long-Term Portion

     654            773      
     $             687          $             814      

 

 16.   Share Capital

AUTHORIZED

The Company is authorized to issue an unlimited number of no par value common shares and Class A Preferred Shares limited to a number equal to not more than 20 percent of the issued and outstanding number of common shares at the time of issuance. No Class A Preferred Shares are outstanding.

ISSUED AND OUTSTANDING

 

As at December 31    2016      2015      2014  
      Number   
(millions)   
     Amount         Number   
(millions)   
     Amount         Number   
(millions)   
     Amount     

Common Shares Outstanding, Beginning of Year

     849.8          $ 3,621            741.2          $ 2,450            740.9          $ 2,445      

Common Shares Issued

     123.1            1,134            98.4            1,098            -            -      

Common Shares Issued under Dividend Reinvestment Plan

     0.1            1            10.2            73            0.3            5      

Common Shares Outstanding, End of Year

             973.0          $         4,756                    849.8          $         3,621                    741.2          $         2,450      

On September 19, 2016, Encana filed prospectus supplements (the “2016 Share Offering”) to the Company’s shelf prospectuses for the issuance of 107,000,000 common shares and granted an over-allotment option for up to an additional 16,050,000 common shares at a price of $9.35 per common share, pursuant to an underwriting agreement. The aggregate gross proceeds from the 2016 Share Offering, including the exercise in full of the over-allotment option, were approximately $1.15 billion. After deducting underwriters’ fees and costs of the 2016 Share Offering, the net cash proceeds received were approximately $1.13 billion.

 

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On March 5, 2015, Encana filed a prospectus supplement (the “2015 Share Offering”) to the Company’s shelf prospectus for the issuance of 85,616,500 common shares and granted an over-allotment option for up to an additional 12,842,475 common shares at a price of C$14.60 per common share, pursuant to an underwriting agreement. The aggregate gross proceeds from the 2015 Share Offering, including the exercise in full of the over-allotment option, were approximately C$1.44 billion ($1.13 billion). After deducting underwriters’ fees and costs of the 2015 Share Offering, the net cash proceeds received were approximately C$1.39 billion ($1.09 billion).

During the year ended December 31, 2016, Encana issued 121,249 common shares totaling $1 million under the Company’s dividend reinvestment plan (“DRIP”) (2015 – issued 10,246,221 common shares totaling $73 million; 2014 – issued 240,839 common shares totaling $5 million).

DIVIDENDS

For the year ended December 31, 2016, Encana paid dividends of $0.06 per common share totaling $52 million (2015 – $0.28 per common share totaling $225 million; 2014 – $0.28 per common share totaling $207 million). The Company’s quarterly dividend payment in 2016 was $0.015 per common share. The Company’s quarterly dividend payment in 2015 and 2014 was $0.07 per common share. Common shares issued as part of the 2016 Share Offering and 2015 Share Offering described above were not eligible to receive the dividends paid on September 30, 2016 and March 31, 2015, respectively.

For the year ended December 31, 2016, the dividends paid included $1 million in common shares as disclosed above, which were issued in lieu of cash dividends under the DRIP (2015 – $73 million; 2014 – $5 million).

On February 15, 2017, the Board of Directors declared a dividend of $0.015 per common share payable on March 31, 2017 to common shareholders of record as of March 15, 2017.

EARNINGS PER COMMON SHARE

The following table presents the computation of net earnings per common share:

 

For the years ended December 31 (US$ millions, except per share amounts)    2016         2015         2014     

Net Earnings (Loss) Attributable to Common Shareholders

   $ (944)         $ (5,165)         $ 3,392      

Number of Common Shares:

        

Weighted average common shares outstanding - Basic

     882.6            822.1            741.0      

Effect of dilutive securities

     -            -            -      

Weighted average common shares outstanding - Diluted

     882.6            822.1            741.0      

Net Earnings (Loss) per Common Share

        

Basic & Diluted

   $         (1.07)         $         (6.28)          $         4.58      

ENCANA STOCK OPTION PLAN

Encana has share-based compensation plans that allow employees to purchase common shares of the Company. Option exercise prices are not less than the market value of the common shares on the date the options are granted. Options granted are exercisable at 30 percent of the number granted after one year, an additional 30 percent of the number granted after two years, are fully exercisable after three years and expire five years after the date granted. Options granted after February 2015 expire seven years after the date granted.

All options outstanding as at December 31, 2016 have associated Tandem Stock Appreciation Rights (“TSARs”) attached. In lieu of exercising the option, the associated TSARs give the option holder the right to receive a cash payment equal to the excess of the market price of Encana’s common shares at the time of the exercise over the original grant price. In addition, certain stock options granted are performance-based. The Performance TSARs vest and expire under the same terms and conditions as the underlying option. Vesting is also subject to Encana attaining prescribed performance relative to predetermined key measures. Historically, most holders of options with TSARs have elected to exercise their stock options as a Stock Appreciation Right (“SAR”) in exchange for a cash payment. As a result, outstanding TSARs are not considered potentially dilutive securities. See Note 21 for further information on Encana’s outstanding and exercisable TSARs and Performance TSARs.

 

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At December 31, 2016, there were 32.2 million common shares reserved for issuance under stock option plans (2015 – 30.3 million; 2014 – 27.3 million).

ENCANA RESTRICTED SHARE UNITS (“RSUs”)

Encana has a share-based compensation plan whereby eligible employees are granted RSUs. An RSU is a conditional grant to receive an Encana common share, or the cash equivalent, as determined by Encana, upon vesting of the RSUs and in accordance with the terms of the RSU Plan and Grant Agreement. The value of one RSU is notionally equivalent to one Encana common share. RSUs vest three years from the date granted, provided the employee remains actively employed with Encana on the vesting date. The Company intends to settle vested RSUs in cash on the vesting date. As a result, RSUs are not considered potentially dilutive securities. See Note 21 for further information on Encana’s outstanding RSUs.

 

 17.   Accumulated Other Comprehensive Income

 

For the years ended December 31   2016        2015     2014  

Foreign Currency Translation Adjustment

      

Balance, Beginning of Year

  $ 1,383         $ 715      $ 693   

Change in Foreign Currency Translation Adjustment

    (183)          668        22   

Balance, End of Year

  $           1,200         $ 1,383      $ 715   

Pension and Other Post-Employment Benefit Plans

      

Balance, Beginning of Year

  $ 7         $ (26   $ (9

Net Actuarial Gains and (Losses) (See Note 22)

    6           46        (22

Income Taxes

    (2)          (15     7   

Reclassification of Net Actuarial (Gains) and Losses to Net Earnings (See Note 22)

    (1)          2        (1

Income Taxes

    -           -        -   

Reclassification of Net Prior Service Costs and (Credits) to Net Earnings (See Note 22)

    -           -        (1

Income Taxes

    -           -        -   

Balance, End of Year

  $ 10         $ 7      $ (26

Total Accumulated Other Comprehensive Income

  $ 1,210         $           1,390      $           689   

 

 18.   Noncontrolling Interest

Initial Public Offering of Common Shares of PrairieSky

On May 29, 2014, Encana completed an initial public offering (“IPO”) of 52.0 million common shares of PrairieSky at a price of C$28.00 per common share for gross proceeds of approximately C$1.46 billion. On June 3, 2014, the over-allotment option granted to the underwriters to purchase up to an additional 7.8 million common shares was exercised in full for gross proceeds of approximately C$218.4 million. Encana received aggregate gross proceeds from the IPO of approximately C$1.67 billion ($1.54 billion). Subsequent to the IPO, Encana owned 70.2 million common shares of PrairieSky, representing a 54 percent ownership interest. Accordingly, Encana consolidated 100 percent of the financial position and results of operations of PrairieSky and recognized a noncontrolling interest for the third party ownership.

The noncontrolling interest in the former consolidated subsidiary, PrairieSky, was reflected as a separate component in the Consolidated Statement of Changes in Shareholders’ Equity for the year ended December 31, 2014. Encana recorded $117 million of the proceeds from the IPO as a noncontrolling interest and the remainder of the proceeds of $1,427 million, less transaction costs of $82 million, was recognized as paid in surplus as at December 31, 2014.

 

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Secondary Public Offering of Common Shares of PrairieSky

On September 26, 2014, Encana completed the secondary offering of 70.2 million common shares of PrairieSky at a price of C$36.50 per common share, for aggregate gross proceeds to Encana of approximately C$2.6 billion. Following the completion of the secondary offering, Encana no longer held an interest in PrairieSky. As discussed in Note 4, the PrairieSky divestiture resulted in a significant alteration between capitalized costs and proved reserves in the Canadian cost centre. Accordingly, Encana recognized a gain on the divestiture of approximately $2,094 million, which was included in (gain) loss on divestitures in the Company’s Consolidated Statement of Earnings. In conjunction with the divestiture, Encana derecognized the carrying amount of the net assets of $258 million, including goodwill of $39 million, and the noncontrolling interest of $133 million.

Distributions to Noncontrolling Interest Owners

During the period from May 29, 2014 to September 25, 2014, PrairieSky paid dividends of C$0.3174 per common share totaling $38 million, of which $18 million was attributable to the noncontrolling interest as presented in the Consolidated Statement of Changes in Shareholders’ Equity and Consolidated Statement of Cash Flows.

Net Earnings Attributable to Noncontrolling Interest

During the period from May 29, 2014 to September 25, 2014, the Company held a controlling interest in PrairieSky. Accordingly, Encana consolidated 100 percent of the financial position and results of operations of PrairieSky and recognized a noncontrolling interest for the third party ownership. For the year ended December 31, 2014, net earnings and comprehensive income of $34 million were attributable to the noncontrolling interest as presented in the Consolidated Statement of Earnings and Consolidated Statement of Comprehensive Income.

 

 19.   Variable Interest Entities

Production Field Centre

In 2008, Encana entered into a contract for the design, construction and operation of the PFC at its Deep Panuke facility. Upon commencement of operations in December 2013, Encana recognized the PFC as a capital lease asset. Under the lease contract, Encana has a purchase option and the option to extend the lease for 12 one-year terms at fixed prices after the initial lease term expires in 2021.

As a result of the purchase option and fixed price renewal options, Encana has determined it holds variable interests and that the related leasing entity qualifies as a variable interest entity (“VIE”). Encana is not the primary beneficiary of the VIE as the Company does not have the power to direct the activities that most significantly impact the VIE’s economic performance. Encana is not required to provide any financial support or guarantees to the leasing entity or its affiliates, other than the contractual payments under the lease and operating agreements. Encana’s maximum exposure is the expected lease payments over the initial contract term. As at December 31, 2016, Encana had a capital lease obligation of $299 million (2015 – $340 million) related to the PFC.

Veresen Midstream Limited Partnership

Veresen Midstream Limited Partnership (“VMLP”) provides gathering, compression and processing services under various agreements related to the Company’s development of natural gas and liquids production in the Montney play. As at December 31, 2016, VMLP provides approximately 623 MMcf/d of natural gas gathering and compression and 295 MMcf/d of natural gas processing under long-term service agreements with remaining terms ranging from up to 15 to 29 years and have various renewal terms providing up to a potential maximum of 10 years.

 

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Encana has determined that VMLP is a VIE and that Encana holds variable interests in VMLP. Encana is not the primary beneficiary as the Company does not have the power to direct the activities that most significantly impact VMLP’s economic performance. These key activities relate to the construction, operation, maintenance and marketing of the assets owned by VMLP. The variable interests arise from certain terms under the various long-term service agreements and include: i) a take or pay for volumes in certain agreements; ii) an operating fee of which a portion can be converted into a fixed fee once VMLP assumes operatorship of certain assets; and iii) a potential payout of minimum costs in certain agreements. The potential payout of minimum costs will be assessed in the eighth year of the assets’ service period and is based on whether there is an overall shortfall of total system cash flows from natural gas gathered and compressed under certain agreements. The potential payout amount can be reduced in the event VMLP markets unutilized capacity to third party users. Encana is not required to provide any financial support or guarantees to VMLP.

As a result of Encana’s involvement with VMLP, the maximum total exposure, which represents the potential exposure to Encana in the event the assets under the agreements are deemed worthless, is estimated to be $1,628 million as at December 31, 2016. The estimate comprises the take or pay volume commitments and the potential payout of minimum costs. The take or pay volume commitments associated with certain gathering and processing assets are included in Note 26 under Transportation and Processing. The potential payout requirement is highly uncertain as the amount is contingent on future production estimates, pace of development and the amount of capacity contracted to third parties. As at December 31, 2016, there were no accounts payable and accrued liabilities outstanding related to the take or pay commitment.

 

 20.   Restructuring Charges

In November 2013, Encana announced its plans to align the organizational structure in support of the Company’s strategy. During 2013 and 2014, total restructuring charges of $124 million were incurred, of which $36 million, before tax, was incurred in 2014. Restructuring charges primarily related to employee severance and benefits. As at December 31, 2014, $4 million remained accrued.

During the first quarter of 2015, Encana revised its plans to align the organizational structure in continued support of the Company’s strategy. Transition and severance costs of $62 million, before tax, were incurred. During 2015, the Company also incurred charges of $2 million related to the 2013 restructuring plan. As at December 31, 2015, $13 million remained accrued.

In February 2016, Encana announced workforce reductions to better align staffing levels and the organizational structure with the Company’s reduced capital spending program as a result of the low commodity price environment. Encana incurred total restructuring charges of $34 million, before tax, primarily related to severance costs, of which $7 million remains accrued as at December 31, 2016. The majority of the remaining amounts accrued are expected to be paid in 2017.

 

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Restructuring charges are included in administrative expense presented in the Corporate & Other segment in the Consolidated Statement of Earnings.

 

For the years ended December 31   2016        2015  (1)         2014    

Employee Severance and Benefits

  $ 33         $ 58         $ 23     

Consultants and Building Sublease Brokerage Fees

    -           4           6     

Outplacement, Moving and Other Expenses

    1           2           7     
    $                 34         $                 64         $                 36     
(1)  

Includes expenses related to both the 2013 and 2015 restructuring plans.

 

For the years ended December 31   2016        2015        2014    

Outstanding Restructuring Accrual, Beginning of Year

  $                 13         $ 4         $                 65     

Current Year Restructuring Expenses Incurred

    34           62           -     

Changes Related to Prior Years’ Restructuring

    -           2           36     

Restructuring Costs Paid

    (40)          (55)          (97)    

Outstanding Restructuring Accrual, End of Year

  $ 7         $                 13         $ 4     

 

For the years ended December 31   2016        2015        2014    

Accounts Payable and Accrued Liabilities

  $ 7         $ 13         $ 2     

Other Liabilities and Provisions

    -           -           2     

Outstanding Restructuring Accrual, End of Year

  $                   7         $                 13         $                   4     

 

 21.   Compensation Plans

Encana has a number of compensation arrangements under which the Company awards various types of long-term incentive grants to eligible employees. They include TSARs, Performance TSARs, SARs, Performance Share Units (“PSUs”), Deferred Share Units (“DSUs”) and RSUs. These compensation arrangements are share-based.

Encana accounts for TSARs, Performance TSARs, SARs, PSUs, and RSUs held by employees as cash-settled share-based payment transactions and, accordingly, accrues compensation costs over the vesting period based on the fair value of the rights determined using the Black-Scholes-Merton and other fair value models. TSARs and SARs granted vest and are exercisable at 30 percent of the number granted after one year, an additional 30 percent of the number granted after two years, are fully exercisable after three years and expire five years after the date granted. Commencing in March 2015, TSARs and SARs granted expire seven years after the date granted. Performance TSARs vest over a four-year period based on prescribed performance targets and expire if not eligible to vest after that time. PSUs and RSUs vest three years from the date of grant, provided the employee remains actively employed with Encana on the vesting date.

The following weighted average assumptions were used to determine the fair value of the share units held by employees:

 

 

   US$ Share Units  
As at December 31    2016         2015         2014     

Risk Free Interest Rate

     0.75%           0.48%           1.01%     

Dividend Yield

     0.51%           1.18%           2.02%     

Expected Volatility Rate (1)

     57.18%           39.16%           30.66%     

Expected Term

     1.9 yrs           1.4 yrs           1.5 yrs     

Market Share Price

     US$11.74           US$5.09           US$13.87     

 

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   C$ Share Units  
As at December 31    2016         2015         2014     

Risk Free Interest Rate

     0.75%           0.48%           1.01%     

Dividend Yield

     0.50%           1.09%           1.91%     

Expected Volatility Rate (1)

     53.24%           36.45%           29.11%     

Expected Term

     1.9 yrs           1.5 yrs           1.7 yrs     

Market Share Price

     C$15.76           C$7.03           C$16.17     

(1)     Volatility was estimated using historical rates.

 

        

The Company has recognized the following share-based compensation costs:

 

  

     
For the years ended December 31    2016        2015        2014    

Compensation Costs of Transactions Classified as Cash-Settled

   $ 174         $ (29)        $ 25     

Compensation Costs of Transactions Classified as Equity-Settled (1)

     -           -           (2)    

Total Share-Based Compensation Costs

     174           (29)          23     

Less: Total Share-Based Compensation Costs Capitalized

     (40)                  10           (6)    

Total Share-Based Compensation Expense

   $ 134         $ (19)        $         17     

Recognized on the Consolidated Statement of Earnings in:

        

Operating expense

   $ 48         $ (7)        $ 12     

Administrative expense

     86           (12)          5     
     $         134         $ (19)        $ 17     
(1)  

RSUs may be settled in cash or open market purchased shares as determined by Encana. The Company’s decision to cash settle RSUs was made subsequent to the original grant date.

As at December 31, 2016, the liability for share-based payment transactions totaled $208 million (2015 – $51 million), of which $88 million (2015 – $28 million) is recognized in accounts payable and accrued liabilities and $120 million (2015 – $23 million) is recognized in other liabilities and provisions in the Consolidated Balance Sheet.

 

For the years ended December 31    2016        2015        2014    

Liability for Cash-Settled Share-Based Payment Transactions:

        

Unvested

   $                 171         $                 47         $             78     

Vested

     37           4           21     
     $ 208         $ 51         $ 99     

 

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The following sections outline certain information related to Encana’s compensation plans as at December 31, 2016.

 

A)

TANDEM STOCK APPRECIATION RIGHTS

All options to purchase common shares issued under the Encana Stock Option Plan have associated TSARs attached. In lieu of exercising the option, the associated TSARs give the option holder the right to receive a cash payment equal to the excess of the market price of Encana’s common shares at the time of exercise over the original grant price. The TSARs vest and expire under the same terms and conditions as the underlying option.

The following tables summarize information related to the TSARs held by employees:

 

As at December 31            2016      2015  
(thousands of units)            Outstanding
TSARs
    Weighted  
Average  
Exercise  
Price (C$)  
     Outstanding
TSARs
    Weighted  
Average  
Exercise  
Price (C$)  
 

Outstanding, Beginning of Year

        17,369       20.21          20,401       22.30    

Granted

        4,277       5.56          1,934       14.42    

Exercised - SARs

        -       -          -       -    

Exercised - Options

        -       -          -       -    

Forfeited

        (2,108     19.62          (2,574     20.89    

Expired

              (4,056     25.26          (2,392     32.63    

Outstanding, End of Year

              15,482       14.92          17,369       20.21    

Exercisable, End of Year

              8,523       18.66          9,981       21.71    

 

As at December 31, 2016

  

 

Outstanding TSARs

    

 

Exercisable TSARs

 
Range of Exercise Price (C$)   

Number

of TSARs
(thousands

of units)

     Weighted
Average
Remaining
Contractual
Life (years)
    Weighted
Average
Exercise
Price (C$)
    

Number

of TSARs
(thousands

of units)

    Weighted  
Average  
Exercise  
Price  
(C$)  
 

0.00 to 9.99

     4,225        6.42       5.56        -       -    

10.00 to 19.99

     7,131        2.42       17.15        5,848       17.74    

20.00 to 29.99

     4,126        2.18       20.65        2,675       20.68    
       15,482        3.45       14.92        8,523       18.66    

During the year, Encana recorded compensation costs of $39 million related to the TSARs (2015 – reduction of compensation costs of $12 million; 2014 – reduction of compensation costs of $15 million).

As at December 31, 2016, there was approximately $17 million of total unrecognized compensation costs (2015 – $1 million) related to unvested TSARs held by employees. The costs are expected to be recognized over a weighted average period of 2.0 years.

 

B)

PERFORMANCE TANDEM STOCK APPRECIATION RIGHTS

In 2013, Encana granted Performance TSARs to the President & Chief Executive Officer. The Performance TSARs vest and expire over the same terms and conditions as the underlying option. Under this 2013 grant, vesting is also subject to Encana achieving prescribed performance targets over a four-year period based on Encana’s share price performance. Performance TSARs that do not vest when eligible are forfeited and cancelled. As at December 31, 2016, there were 934,830 outstanding (exercisable – nil) Performance TSARs under this grant with a weighted average exercise price of C$18.00 and a weighted average remaining contractual life of 1.7 years.

During the year, Encana recorded compensation costs of $2 million related to the Performance TSARs (2015 – reduction of compensation costs of $1 million; 2014 – compensation costs of $1 million).

 

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As at December 31, 2016, there were no unrecognized compensation costs (2015 – nil) related to unvested Performance TSARs.

 

C)

STOCK APPRECIATION RIGHTS

Since 2010, U.S. dollar denominated SARs have been granted to eligible U.S. based employees, which entitle the employee to receive a cash payment equal to the excess of the market price of Encana’s common shares at the time of exercise over the original grant price of the right.

The following tables summarize information related to U.S. dollar denominated SARs held by employees:

 

As at December 31            2016      2015  
(thousands of units)            Outstanding
SARs
    Weighted  
Average  
Exercise  
Price (US$)  
     Outstanding
SARs
    Weighted
Average
Exercise
Price (US$)
 

Outstanding, Beginning of Year

        10,137        20.26           12,264        23.04   

Granted

        1,453        4.06           1,444        12.30   

Exercised

        -        -           -        -   

Forfeited

        (1,464     18.65           (1,338     20.00   

Expired

              (3,405     25.32           (2,233     30.58   

Outstanding, End of Year

              6,721        14.55           10,137        20.26   

Exercisable, End of Year

              3,782        18.02           6,149        22.49   

 

As at December 31, 2016

  

 

Outstanding SARs

    

 

Exercisable SARs

 
Range of Exercise Price (US$)   

Number

of SARs
(thousands

of units)

     Weighted
Average
Remaining
Contractual
Life (years)
    Weighted
Average
Exercise
Price (US$)
    

Number

of SARs
(thousands

of units)

    Weighted  
Average  
Exercise  
Price (US$)  
 

0.00 to 9.99

     1,452         6.42        4.06         -        -     

10.00 to 19.99

     4,753         2.45        16.96         3,413        17.62     

20.00 to 29.99

     516         2.13        21.88         369        21.67     
       6,721         3.28        14.55         3,782        18.02     

During the year, Encana recorded compensation costs of $13 million related to the SARs (2015 – reduction of compensation costs of $5 million; 2014 – reduction of compensation costs of $2 million).

As at December 31, 2016, there was approximately $7 million of unrecognized compensation costs (2015 – nil) related to unvested SARs held by employees. The costs are expected to be recognized over a weighted average period of 1.7 years.

 

D)

PERFORMANCE SHARE UNITS

Since 2010, PSUs have been granted to eligible employees, which entitle the employee to receive, upon vesting, a cash payment equal to the value of one common share of Encana for each PSU held, depending upon the terms of the PSU Plan. PSUs vest three years from the date granted, provided the employee remains actively employed with Encana on the vesting date. Based on the performance assessment, up to a maximum of two times the original PSU grant may be eligible to vest in respect of the year being measured. The respective proportion of the original PSU grant deemed eligible to vest for each year will be valued and the notional cash value deposited to a PSU account, with payout deferred to the final vesting date.

 

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The ultimate value of the PSUs will depend upon Encana’s performance relative to predetermined corresponding performance targets measured over a three-year period. For grants commencing in 2013, performance is measured over a three-year period relative to a specified peer group. For grants prior to 2013, which were paid in 2014 and 2015, performance was measured relative to an internal recycle ratio.

The following table summarizes information related to the PSUs:

 

(thousands of units)   

Canadian Dollar Denominated    

Outstanding PSUs

    

U.S. Dollar Denominated  

Outstanding PSUs  

 
As at December 31    2016      2015      2016      2015    

Unvested and Outstanding, Beginning of Year

     2,603        1,222        1,025        278    

Granted

     3,559        1,438        2,245        845    

Vested and Released

     -        (36      -        (5)   

Units, in Lieu of Dividends

     38        97        21        40    

Forfeited

     (982      (118      (384      (133)   

Unvested and Outstanding, End of Year

     5,218        2,603        2,907        1,025    

During the year, Encana recorded compensation costs of $29 million related to the outstanding PSUs (2015 – $1 million; 2014 – $4 million).

As at December 31, 2016, there was approximately $60 million of total unrecognized compensation costs (2015 – $10 million) related to unvested PSUs held by employees. The costs are expected to be recognized over a weighted average period of 1.8 years.

 

E)

DEFERRED SHARE UNITS

The Company has in place a program whereby Directors and certain key employees are issued DSUs, which vest immediately, are equivalent in value to a common share of the Company and are settled in cash.

Under the DSU Plan, employees have the option to convert either 25 or 50 percent of their annual High Performance Results (“HPR”) award into DSUs. The number of DSUs converted is based on the value of the award divided by the closing value of Encana’s share price at the end of the performance period of the HPR award.

For both Directors and employees, DSUs can only be redeemed following departure from Encana in accordance with the terms of the respective DSU Plan and must be redeemed prior to December 15 th of the year following the departure from Encana.

The following table summarizes information related to the DSUs:

 

(thousands of units)    Canadian Dollar Denominated
Outstanding DSUs
 
As at December 31    2016      2015  

Outstanding, Beginning of Year

     753        891  

Granted

     139        41  

Converted from HPR awards

     43        139  

Units, in Lieu of Dividends

     6        32  

Redeemed

     (21      (350

Outstanding, End of Year

     920        753  

During the year, Encana recorded compensation costs of $7 million related to the outstanding DSUs (2015 – reduction of compensation costs of $5 million; 2014 – compensation costs of $1 million).

 

F)

RESTRICTED SHARE UNITS

Since 2011, RSUs have been granted to eligible employees. An RSU is a conditional grant to receive an Encana common share, or the cash equivalent, as determined by Encana, upon vesting of the RSUs and in accordance

 

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with the terms of the RSU Plan and Grant Agreement. The value of one RSU is notionally equivalent to one Encana common share. RSUs vest three years from the date granted, provided the employee remains actively employed with Encana on the vesting date. As at December 31, 2016, Encana plans to settle the RSUs in cash on the vesting date.

The following table summarizes information related to the RSUs:

 

(thousands of units)        Canadian Dollar Denominated    
Outstanding RSUs
         U.S. Dollar Denominated    
Outstanding RSUs
 
 
As at December 31    2016      2015      2016      2015  
 

Unvested and Outstanding, Beginning of Year

     8,114         5,887         5,909         3,110   

Granted

     7,209         3,381         7,826         3,206   

Units, in Lieu of Dividends

     82         306         80         218   

Vested and Released

     (2,840      (206      (1,446      (51

Forfeited

     (1,567      (1,254      (1,951      (574

Unvested and Outstanding, End of Year

     10,998         8,114         10,418         5,909   

During the year, Encana recorded compensation costs of $84 million related to the outstanding RSUs (2015 – reduction of compensation costs of $7 million; 2014 – compensation costs of $36 million). As at December 31, 2016, $11 million of the paid in surplus balance related to the RSUs (2015 – $11 million).

As at December 31, 2016, there was approximately $117 million of total unrecognized compensation costs (2015 – $26 million) related to unvested RSUs held by employees. The costs are expected to be recognized over a weighted average period of 1.6 years.

 

 22.   Pension and Other Post-Employment Benefits

The Company sponsors defined benefit and defined contribution plans and provides pension and other post-employment benefits (“OPEB”) to its employees in Canada and the U.S. As of January 1, 2003, the defined benefit pension plan was closed to new entrants. The average remaining service period of active employees participating in the defined benefit pension plan is seven years. The average remaining service period of the active employees participating in the OPEB plan is 13 years.

The Company is required to file an actuarial valuation of its pension plans with the provincial regulator at least every three years, or more frequently if directed by the regulator. The most recent filing was dated December 31, 2016 and the next required filing is expected to be as at December 31, 2019.

 

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The following tables set forth changes in the benefit obligations and fair value of plan assets for the Company’s defined benefit pension and other post-employment benefit plans for the years ended December 31, 2016 and 2015, as well as the funded status of the plans and amounts recognized in the Consolidated Financial Statements as at December 31, 2016 and 2015.

 

          Pension Benefits                      OPEB              
As at December 31    2016      2015      2016      2015  
 

Change in Benefit Obligations

             

Projected Benefit Obligation, Beginning of Year

   $ 212       $ 279       $ 96       $ 114   

Service Cost

     2         2         10         10   

Interest Cost

     8         9         4         4   

Actuarial (Gains) Losses

     6         (23      (14      (24

Exchange Differences

     6         (38      2         (3

Employee Contributions

     -         -         1         1   

Benefits Paid

     (23      (17      (7      (6

Projected Benefit Obligation, End of Year

   $ 211       $ 212       $ 92       $ 96   
 

Change in Plan Assets

             

Fair Value of Plan Assets, Beginning of Year

   $ 208       $ 264       $ -       $ -   

Actual Return on Plan Assets

     9         11         -         -   

Exchange Differences

     7         (41      -         -   

Employee Contributions

     -         -         1         1   

Employer Contributions

     -         -         6         5   

Benefits Paid

     (23      (17      (7      (6

Transfers to Defined Contribution Plan

     (7      (9      -         -   

Fair Value of Plan Assets, End of Year

   $ 194       $ 208       $ -       $ -   
 

Funded Status of Plan Assets, End of Year

   $ (17    $ (4    $ (92    $ (96
 

Total Recognized Amounts in the Consolidated Balance Sheet Consist of:

             

Other Assets

   $ 1       $ 2       $ -       $ -   

Current Liabilities

     -         -         (7      (6

Non-Current Liabilities

     (18      (6      (85      (90

Total

   $ (17    $ (4    $ (92    $ (96
 

Total Recognized Amounts in Accumulated Other Comprehensive Income Consist of:

             

Net Actuarial (Gains) Losses

   $ 28       $ 20       $ (28    $ (15

Prior Service Costs

     (5      (5      (7      (7

Total Recognized in Accumulated Other Comprehensive Income, Before Tax

   $ 23       $ 15       $ (35    $ (22 )  

The accumulated defined benefit obligation for all defined benefit plans was $300 million as at December 31, 2016 (2015 – $293 million).

The following table sets forth the defined benefit plans with accumulated benefit obligation and projected benefit obligation in excess of the fair value of the plan assets:

 

     Pension Benefits     OPEB  
As at December 31   2016       2015       2016       2015    
 

Projected Benefit Obligation

    $                    (211)         $                    (64)         $                    (92)         $                    (96)    

Accumulated Benefit Obligation

    (208)         (51)         (92)         (96)    

Fair Value of Plan Assets

    194          58          -          -     

Following are the weighted average assumptions used by the Company in determining the defined benefit pension and other post-employment benefit obligations:

 

     Pension Benefits     OPEB  
As at December 31   2016          2015        2016          2015     
 

Discount Rate

    3.50%         3.75%        3.80%         4.02%   

Rates of Increase in Compensation Levels

                        3.49%                             3.49%                            5.04%                             5.04%   

 

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The following sets forth total benefit plans expense recognized by the Company:

 

                                                                                                                 
     Pension Benefits     OPEB  
For the years ended December 31   2016        2015      2014     2016        2015      2014   
 

Defined Periodic Benefit Plan Expense

  $             (1)       $             1      $             -     $             13        $             14      $             12   

Defined Contribution Plan Expense

    25          33        34       -          -         

Total Benefit Plans Expense

  $ 24        $ 34      $ 34     $ 13        $ 14      $ 12   

Of the total benefit plans expense, $28 million (2015 – $39 million; 2014 – $36 million) was included in operating expense and $9 million (2015 – $9 million; 2014 – $10 million) was included in administrative expense.

The pension and OPEB periodic benefit costs are as follows:

 

                                                                                                                             
     Pension Benefits     OPEB  
For the years ended December 31   2016        2015       2014       2016        2015      2014    
 

Current Service Cost

  $             2        $             2       $             3       $             10        $             10      $             10    

Interest Cost

    8                 12         4          4        4    

Expected Return on Plan Assets

    (11)         (12)        (15)        -          -        -    

Amounts Reclassified from Accumulated

                 

Other Comprehensive Income:

                 

Amortization of net actuarial (gains) and losses

    -                 -         (1)         -        (1)   

Amortization of net prior service costs

    -                 -         -          -        (1)   

Total Defined Periodic Benefit Plan Expense

  $ (1)       $      $ -       $ 13        $ 14      $ 12    

The amounts recognized in other comprehensive income are as follows:

 

                                                                                                                             

 

  Pension Benefits     OPEB  
For the years ended December 31   2016        2015       2014       2016       2015       2014    
 

Net Actuarial (Gains) Losses

  $ 8        $ (22)      $ 8       $ (14)      $ (24)      $ 14    

Amortization of Net Actuarial Gains and (Losses)

    -          (2)        -         1         -         1    

Amortization of Net Prior Service Costs

    -          -         -         -         -         1    

Total Amounts Recognized in Other Comprehensive (Income) Loss, Before Tax

  $ 8        $ (24)      $ 8       $ (13)      $ (24)      $ 16    

Total Amounts Recognized in Other Comprehensive (Income) Loss, After Tax

  $             6        $             (17)      $             6       $             (9)      $             (16)      $             11    

The estimated net actuarial loss and net prior service costs for the pension and other post-retirement plans that will be amortized from accumulated other comprehensive income into the defined periodic benefit plan expense in 2017 is $1 million.

Following are the weighted average assumptions used by the Company in determining the net periodic pension and other post-retirement benefit costs:

 

                                                                                                                                                  

 

 

 

   Pension Benefits      OPEB  

For the years ended December 31

         2016           2015           2014           2016        2015        2014  
 

Discount Rate

       3.75%          3.75%          4.50%         4.05%        3.66%        4.49%  

Long-Term Rate of Return on Plan Assets

       6.25%          6.25%          6.50%         -        -        -  

Rates of Increase in Compensation Levels

             3.49%                3.99%              3.99%               6.43%                6.47%                6.50%  

The Company’s assumed health care cost trend rates are as follows:

 

                                                                                   
For the years ended December 31  

 

   2016         2015         2014     

Health Care Cost Trend Rate for Next Year

       7.30%          7.41%           7.00%     

Rate to Which the Cost Trend Rate is Assumed to Decline (Ultimate Trend Rate)

       5.00%          5.00%           4.59%     

Year that the Rate Reaches the Ultimate Trend Rate

                 2026                  2026                   2024     

 

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A one percent change in the assumed health care cost trend rate over the projected period would have the following effects:

 

 

  1% Increase        1% Decrease     
 

Effect on Total of Service and Interest Cost Components

  $             2         $             (1)     

Effect on Other Post-Retirement Benefit Obligations

  $             8         $             (5)     

The Company expects to contribute $1 million to its defined benefit pension plans in 2017. The Company’s OPEB plans are funded on an as required basis.

The following provides an estimate of benefit payments for the next 10 years. These estimates reflect benefit increases due to continuing employee service.

 

 

  Defined Benefit   
Pension Payments   
    Other Benefit   
Payments   
 
 

2017

  $                 14         $             7      

2018

    14           7      

2019

    15           7      

2020

    15           8      

2021

    14           8      

2022–2026

    68           30      

The Company’s registered and other defined benefit pension plan assets are presented by investment asset category and input level within the fair value hierarchy as follows:

 

As at December 31   2016  
     Level 1        Level 2        Level 3        Total     

Investments:

       

Cash and Cash Equivalents

  $             27         $ 1         $ -         $ 28      

Fixed Income – Canadian Bond Funds

    -           61           -           61      

Equity – Domestic

    12           38           -           50      

Equity – International

    -           45           -           45      

Real Estate and Other

    -           -           10           10      

Fair Value of Plan Assets, End of Year

  $ 39         $             145         $             10         $             194      
As at December 31   2015  
     Level 1        Level 2        Level 3        Total     

Investments:

       

Cash and Cash Equivalents

  $ 28         $ 1         $ -         $ 29      

Fixed Income – Canadian Bond Funds

    -           66           -           66      

Equity – Domestic

    13           36           -           49      

Equity – International

    -           53           -           53      

Real Estate and Other

    1           -           10           11      

Fair Value of Plan Assets, End of Year

  $ 42         $ 156         $ 10         $ 208      

Fixed Income investments consist of Canadian bonds issued by investment grade companies. Equity investments consist of both domestic and international securities. The fair values of these securities are based on dealer quotes, quoted market prices and net asset values. Real Estate and Other consists mainly of commercial properties and is valued based on a discounted cash flow model.

 

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A summary in changes in Level 3 fair value measurements is presented below:

 

      Real Estate and Other    
As at December 31    2016         2015     

Balance, Beginning of Year

   $             10          $             12      

Purchases, Sales and Settlements

     

Purchases and sales

     -            -      

Settlements

     -            -      

Actual Return on Plan Assets

     

Relating to assets sold during the reporting period

     -            -      

Relating to assets still held at the reporting date

     -            (2

Transfers In and Out of Level 3

     -            -   

Balance, End of Year

   $ 10          $ 10   

Encana’s registered pension plan assets were invested by the Company in the following as at December 31, 2016: 26 percent Domestic Equity (2015 – 24 percent), 23 percent Foreign Equity (2015 – 26 percent), 44 percent Bonds (2015 – 44 percent), and 7 percent Real Estate and Other (2015 – 6 percent). The expected long-term rate of return is 6.25 percent. The expected rate of return on pension plan assets is based on historical and projected rates of return for each asset class in the plan investment portfolio. The actual return on plan assets was $9 million (2015 – $11 million). The asset allocation structure is subject to diversification requirements and constraints, which reduce risk by limiting exposure to individual equity investment, credit rating categories and foreign currency exposure.

 

 

 23.     Fair Value Measurements

The fair values of cash and cash equivalents, accounts receivable and accrued revenues, and accounts payable and accrued liabilities approximate their carrying amounts due to the short-term maturity of those instruments. The fair value of cash in reserve approximates its carrying amount due to the nature of the instrument held. Fair value information related to pension plan assets is included in Note 22.

Recurring fair value measurements are performed for risk management assets and liabilities and other derivative liabilities, as discussed further in Note 24. These items are carried at fair value in the Consolidated Balance Sheet and are classified within the three levels of the fair value hierarchy in the following tables. There have been no significant transfers between the hierarchy levels during the period.

Fair value changes and settlements for amounts related to risk management assets and liabilities are recognized in revenues, transportation and processing expense, and foreign exchange gains and losses according to their purpose.

 

As at December 31, 2016   

Level 1   

Quoted   
Prices in   
Active   
Markets   

    

Level 2   

Other   
Observable   
Inputs   

    

Level 3   

Significant   

Unobservable   

Inputs   

     Total Fair   
Value   
     Netting  (1)          Carrying   
Amount   
 
   

Risk Management

                     

Risk Management Assets

                     

Current

   $             -          $             11          $             -          $             11          $         (11)         $             -      

Long-term

     -            19            -            19            (3)           16      

Risk Management Liabilities

                     

Current

     -            229            36            265            (11)           254      

Long-term

     -            38            -            38            (3)           35      

Other Derivative Liabilities

                     

Current in accounts payable and accrued liabilities

   $ -          $ 5          $ -          $ 5          $ -          $ 5      

Long-term in other liabilities and provisions

     -            14            -            14            -            14      

 

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As at December 31, 2015    Level 1
Quoted
Prices in
Active
Markets
     Level 2
Other
Observable
Inputs
    

Level 3
Significant

Unobservable
Inputs

     Total
Fair
Value
     Netting  (1)      Carrying
Amount
 
   

Risk Management

                     

Risk Management Assets

                     

Current

   $ 1      $ 356      $ 37      $ 394      $ (27    $ 367  

Long-term

     -        11        -        11        -        11  

Risk Management Liabilities

                     

Current

     -        31        12        43        (27      16  

Long-term

     -        -        9        9        -        9  
   

Other Derivative Liabilities

                     

Current in accounts payable and accrued liabilities

   $ -      $ 6      $ -      $ 6      $ -      $ 6  

Long-term in other liabilities and provisions

     -        23        -        23        -        23  
(1)

Netting to offset derivative assets and liabilities where the legal right and intention to offset exists, or where counterparty master netting arrangements contain provisions for net settlement.

The Company’s Level 1 and Level 2 risk management assets and liabilities consist of commodity fixed price contracts, NYMEX three-way options, NYMEX costless collars, NYMEX call options, WTI-based fixed price swaptions, foreign currency swaps and basis swaps with terms to 2022. Level 2 also includes other derivative liabilities as discussed in Note 24. The fair values of these contracts are based on a market approach and are estimated using inputs which are either directly or indirectly observable at the reporting date, such as exchange and other published prices, broker quotes and observable trading activity.

Level 3 Fair Value Measurements

As at December 31, 2016, the Company’s Level 3 risk management assets and liabilities consist of WTI three-way options and WTI costless collars with terms to 2017. The WTI three-way options are a combination of a sold call, bought put and a sold put. The WTI costless collars are a combination of a sold call and a bought put. These contracts allow the Company to participate in the upside of commodity prices to the ceiling of the call option and provide the Company with complete (collars) or partial (three-way) downside price protection through the put options. The fair values of the WTI three-way options and the WTI costless collars are based on the income approach and are modelled using observable and unobservable inputs such as implied volatility. The unobservable inputs are obtained from third parties whenever possible and reviewed by the Company for reasonableness.

A summary of changes in Level 3 fair value measurements is presented below:

 

     Risk Management  
                  2016                     2015      

Balance, Beginning of Year

   $             16     $ (18

Total Gains (Losses)

     (16     18  

Purchases, Sales, Issuances and Settlements:

    

Purchases, sales and issuances

     -       -  

Settlements

     (26     16  

Transfers Out of Level 3 (1)

     (10     -  

Balance, End of Year

   $ (36   $             16  

Change in Unrealized Gains (Losses) Related to Assets and Liabilities Held at End of Year

   $ (27   $ 24  
(1)

The Company’s policy is to recognize transfers out of Level 3 on the date of the event of change in circumstances that caused the transfer.

Quantitative information about unobservable inputs used in Level 3 fair value measurements is presented below:

 

As at December 31    Valuation Technique      Unobservable Input                   2016                          2015      

Risk Management – WTI Options

     Option Model        Implied Volatility        18% - 64%        33% - 64%  

A 10 percent increase or decrease in implied volatility for the WTI options would cause a corresponding $3 million (2015 – $2 million) increase or decrease to net risk management assets and liabilities.

 

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 24.   Financial Instruments and Risk Management

 

A)

FINANCIAL INSTRUMENTS

Encana’s financial assets and liabilities are recognized in cash and cash equivalents, accounts receivable and accrued revenues, cash in reserve, accounts payable and accrued liabilities, risk management assets and liabilities, other liabilities and provisions and long-term debt.

 

B)

RISK MANAGEMENT ACTIVITIES

Encana uses derivative financial instruments to manage its exposure to cash flow variability from commodity prices and fluctuating foreign currency exchange rates. The Company does not apply hedge accounting to any of its derivative financial instruments. As a result, gains and losses from changes in the fair value are recognized in net earnings.

COMMODITY PRICE RISK

Commodity price risk arises from the effect fluctuations in future commodity prices may have on future cash flows. To partially mitigate exposure to commodity price risk, the Company has entered into various derivative financial instruments. The use of these derivative instruments is governed under formal policies and is subject to limits established by the Board of Directors. The Company’s policy is to not use derivative financial instruments for speculative purposes.

Natural Gas – To partially mitigate natural gas commodity price risk, the Company uses NYMEX-based contracts such as fixed price contracts, options and costless collars. Encana also enters into basis swaps to manage against widening price differentials between various production areas and benchmark price points.

Crude Oil – To partially mitigate crude oil commodity price risk, the Company uses WTI-based contracts such as fixed price contracts, fixed price swaptions, options and costless collars. Encana also enters into basis swaps to manage against widening price differentials between various production areas and benchmark price points.

FOREIGN EXCHANGE RISK

Foreign exchange risk arises from changes in foreign currency exchange rates that may affect the fair value or future cash flows of the Company’s financial assets or liabilities. To partially mitigate the effect of foreign exchange fluctuations on future commodity revenues and expenses, the Company may enter into foreign currency derivative contracts. As at December 31, 2016, Encana has entered into $300 million notional U.S. dollar denominated currency swaps at an average exchange rate of US$0.7486 to C$, which mature throughout 2017.

 

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RISK MANAGEMENT POSITIONS AS AT DECEMBER 31, 2016

 

      Notional Volumes    Term    Average Price        Fair Value    

Natural Gas Contracts

                 

Fixed Price Contracts

                 

NYMEX Fixed Price

     427      MMcf/d    2017      3.08      US$/Mcf        $ (86)    

NYMEX Three-Way Options

     300      MMcf/d    2017            (68)    

Sold call price

              3.07      US$/Mcf       

Bought put price

              2.75      US$/Mcf       

Sold put price

              2.27      US$/Mcf       

NYMEX Costless Collars

     135      MMcf/d    2017            (12)    

Sold call price

              3.57      US$/Mcf       

Bought put price

              2.99      US$/Mcf       

NYMEX Call Options

                 

Sold call price

     230      MMcf/d    2018      3.75      US$/Mcf          (19)    

Sold call price

     230      MMcf/d    2019      3.75      US$/Mcf          (13)    

Basis Contracts (1)

         2017 – 2022            23     

Other Financial Positions

                                      1     

Natural Gas Fair Value Position

                                      (174)    

Crude Oil Contracts

                 

Fixed Price Contracts

                 

WTI Fixed Price

     35.5      Mbbls/d    2017      52.17      US$/bbl          (52)    

WTI Fixed Price

     13.0      Mbbls/d    2018      55.27      US$/bbl          (6)    

WTI Fixed Price Swaptions (2)

     10.0      Mbbls/d    Q2 2017      50.86      US$/bbl          (6)    

WTI Three-Way Options

     25.0      Mbbls/d    2017            (15)    

Sold call price

              59.42      US$/bbl       

Bought put price

              49.21      US$/bbl       

Sold put price

              38.41      US$/bbl       

WTI Costless Collars

     30.0      Mbbls/d    Q3 – Q4 2017            (21)    

Sold call price

              56.05      US$/bbl       

Bought put price

              46.22      US$/bbl       

Basis Contracts (3)

                 2017 – 2019                    2     

Crude Oil Fair Value Position

                                      (98)    

Other Derivative Contracts

           

Fair Value Position

                                      (19)    

Foreign Currency Swaps

                 

Fair Value Position (4)

                                      (1)    

Total Fair Value Position

                                    $ (292)    
(1)  

Encana has entered into swaps to protect against widening natural gas price differentials between benchmark and regional sales prices.

(2)  

WTI Fixed Price Swaptions give the counterparty the option to extend Q1 2017 fixed price swaps to June 30, 2017 at the strike price.

(3)  

Encana has entered into swaps to protect against widening Midland differentials to WTI.

(4)

Encana has entered into U.S. dollar denominated fixed-for-floating average currency swaps to protect against widening fluctuations between the Canadian dollar and U.S. dollar.

 

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EARNINGS IMPACT OF REALIZED AND UNREALIZED GAINS (LOSSES) ON RISK MANAGEMENT POSITIONS

 

For the years ended December 31    2016      2015     2014     

Realized Gain (Loss) on Risk Management

       

Revenues

   $ 361       $ 917      $ (84)     

Transportation and processing

     (8      (16     (7)     
     $                 353       $                 901      $ (91)     

Unrealized Gain (Loss) on Risk Management

       

Revenues

   $ (636    $ (325   $ 456      

Transportation and processing

     22         (6     (12)     

Foreign exchange

     (1      -        -      
     $ (615    $ (331   $                 444      

Total Realized and Unrealized Gain (Loss) on Risk Management, net

       

Revenues

   $ (275    $ 592      $ 372      

Transportation and processing

     14         (22     (19)     

Foreign exchange

     (1      -        -      
     $ (262    $ 570      $ 353      

RECONCILIATION OF UNREALIZED RISK MANAGEMENT POSITIONS FROM JANUARY 1 TO DECEMBER 31

 

      2016      2015     2014  
      Fair Value      Total
Unrealized
Gain (Loss)
    

Total
Unrealized

Gain (Loss)

   

Total
Unrealized

Gain (Loss)

 
 

Fair Value of Contracts, Beginning of Year

   $             324                

Change in Fair Value of Contracts in Place at Beginning of Year and Contracts Entered into During the Year

     (262)         $ (262)         $             570      $ 353     

Foreign Exchange Translation Adjustment on Canadian Dollar Contracts

     (1)               

Settlement of Acquired Crude Oil Contracts

     (6)               

Settlement of Other Derivative Contracts

     6                

Fair Value of Contracts Realized During the Year

     (353)           (353)           (901     91     

Fair Value of Contracts, End of Year

   $ (292)         $             (615)         $ (331   $             444     

 

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Risk management assets and liabilities arise from the use of derivative financial instruments and are measured at fair value. See Note 23 for a discussion of fair value measurements.

UNREALIZED RISK MANAGEMENT POSITIONS

 

As at December 31    2016          2015    

Risk Management Assets

     

Current

   $ -          $ 367    

Long-term

     16            11    
       16            378    

Risk Management Liabilities

     

Current

     254            16    

Long-term

     35            9    
       289            25    

Other Derivative Liabilities

     

Current in accounts payable and accrued liabilities

     5            6    

Long-term in other liabilities and provisions

                     14                            23    

Net Risk Management Assets (Liabilities) and Other Derivative Liabilities

   $ (292)          $ 324    

SUMMARY OF UNREALIZED RISK MANAGEMENT POSITIONS

 

As at December 31    2016      2015  
      Risk Management      Risk Management  
      Asset      Liability      Net      Asset      Liability      Net  
 

Commodity Price Positions

                   

Natural gas

   $ 14      $ 188      $ (174)      $ 53        $ 4        $ 49     

Crude oil

     2        100        (98)        325          -          325     

Power

     -        -               -          21          (21)    

Other Positions

                   

Other derivative contracts

     -        19        (19)        -          29          (29)    

Foreign currency swaps

     -        1        (1)        -          -          -     

Total Fair Value Position

   $             16      $             308      $             (292)      $             378        $             54        $             324     

 

C)

CREDIT RISK

Credit risk arises from the potential that the Company may incur a loss if a counterparty to a financial instrument fails to meet its obligation in accordance with agreed terms. While exchange-traded contracts are subject to nominal credit risk due to the financial safeguards established by the New York Stock Exchange and Toronto Stock Exchange, over-the-counter traded contracts expose Encana to counterparty credit risk. This credit risk exposure is mitigated through the use of credit policies approved by the Board of Directors governing the Company’s credit portfolio including credit practices that limit transactions according to counterparties’ credit quality. Mitigation strategies may include master netting arrangements, requesting collateral and/or transacting credit derivatives. The Company executes commodity derivative financial instruments under master agreements that have netting provisions that provide for offsetting payables against receivables. As at December 31, 2016, the Company had no significant credit derivatives in place and held no collateral.

As at December 31, 2016, cash equivalents include high-grade, short-term securities, placed primarily with financial institutions and companies with strong investment grade ratings. Any foreign currency agreements entered into are with major financial institutions in Canada and the U.S. or with counterparties having investment grade credit ratings.

A substantial portion of the Company’s accounts receivable are with customers in the oil and gas industry and are subject to normal industry credit risks. As at December 31, 2016, approximately 90 percent (2015 – 95 percent) of Encana’s accounts receivable and financial derivative credit exposures were with investment grade counterparties.

 

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As at December 31, 2016, Encana had one counterparty (2015 – two counterparties) whose net settlement position individually accounted for more than 10 percent of the fair value of the outstanding in-the-money net risk management contracts by counterparty. As at December 31, 2016, this counterparty accounted for 84 percent (2015 – 13 percent and 11 percent) of the fair value of the outstanding in-the-money net risk management contracts.

During 2015, Encana entered into agreements resulting from divestitures, which may require Encana to fulfill certain payment obligations on the take or pay volume commitments assumed by the purchaser. The circumstances that would require Encana to perform under the agreement include events where the purchaser fails to make payment to the guaranteed party and/or the purchaser is subject to an insolvency event. The agreements have remaining terms from four to eight years with a fair value recognized of $19 million as at December 31, 2016 (2015 – $29 million). The maximum potential amount of undiscounted future payments is $368 million as at December 31, 2016, and is considered unlikely.

 

 25.   Supplementary Information

 

Supplemental disclosures to the Consolidated Statement of Cash Flows are presented below:

 

A)

NET CHANGE IN NON-CASH WORKING CAPITAL

 

                                                        
For the years ended December 31    2016      2015     2014     

Operating Activities

       

Accounts receivable and accrued revenues

   $             86      $             314     $ (411)    

Accounts payable and accrued liabilities

     (233      (14     188     

Income tax payable and receivable

     (40      (38                 214     
     $ (187    $ 262     $ (9)    

 

B)

NON-CASH ACTIVITIES

 

                                                        
For the years ended December 31    2016      2015     2014     

Non-Cash Investing Activities

       

Asset retirement obligation incurred (See Note 15)

   $             18      $ 19     $ 28     

Asset retirement obligation change in estimated future cash outflows (See Note 15)

     (99                  115       35     

Property, plant and equipment accruals

     5        (346                 326     

Capitalized long-term incentives (See Note 21)

     40        (10     6     

Property additions/dispositions

     100        12       294     

Non-Cash Financing Activities

       

Common shares issued under dividend reinvestment plan (See Note 16)

   $ 1      $ 73     $ 5     

 

C)

SUPPLEMENTARY CASH FLOW INFORMATION

 

                                                        
For the years ended December 31    2016      2015     2014     

Interest Paid

   $           397      $             602     $             648     

Income Taxes Paid, net of Amounts (Recovered)

   $ (19    $ (105   $             43     

 

 26.   Commitments and Contingencies

COMMITMENTS

The following table outlines the Company’s commitments as at December 31, 2016:

 

      Expected Future Payments  
(undiscounted)    2017      2018      2019      2020      2021      Thereafter        Total  

Transportation and Processing

   $         508      $         540      $         603      $         585      $         471      $         2,566      $         5,273    

Drilling and Field Services

     159        66        33        18        7        -        283    

Operating Leases

     25        24        11        3        3        16        82    

Total

   $ 692      $ 630      $ 647      $ 606      $ 481      $ 2,582      $ 5,638    

 

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Included within transportation and processing in the table above are certain commitments associated with midstream service agreements with VMLP as described in Note 19. Divestiture transactions can reduce certain commitments disclosed above.

CONTINGENCIES

Encana is involved in various legal claims and actions arising in the normal course of the Company’s operations. Although the outcome of these claims cannot be predicted with certainty, the Company does not expect these matters to have a material adverse effect on Encana’s financial position, cash flows or results of operations. Management’s assessment of these matters may change in the future as certain of these matters are in early stages or are subject to a number of uncertainties. For material matters that the Company believes an unfavourable outcome is reasonably possible, the Company discloses the nature and a range of potential exposures. If an unfavourable outcome were to occur, there exists the possibility of a material impact on the Company’s consolidated net earnings or loss for the period in which the effect becomes reasonably estimable. The Company accrues for such items when a liability is both probable and the amount can be reasonably estimated. Such accruals are based on the Company’s information known about the matters, estimates of the outcomes of such matters and experience in handling similar matters.

 

 

 27.   Supplementary Oil and Gas Information (unaudited)

The unaudited supplementary information on oil and gas exploration and production activities for 2016, 2015 and 2014 has been presented in accordance with the FASB’s ASC Topic 932, “Extractive Activities – Oil and Gas” and the SEC’s final rule, “Modernization of Oil and Gas Reporting”. Disclosures by geographic area include Canada and the United States.

Proved Oil and Gas Reserves

The following reserves disclosures reflect estimates of proved reserves, proved developed reserves, and proved undeveloped reserves, net of third-party royalty interests of oil, natural gas and NGLs owned at each year end and changes in proved reserves during each of the last three years.

The Company’s estimates of proved reserves are made using available geological and reservoir data as well as production performance data. These estimates are reviewed annually by internal reservoir engineers and revised, either upward or downward, as warranted by additional data. The results of infill drilling are treated as positive revisions due to increases to expected recovery. Other revisions are due to changes in, among other things, development plans, reservoir performance, commodity prices, economic conditions, and government restrictions. Estimates of proved reserves are inherently imprecise and are continually subject to revision based on production history, results of additional exploration and development, price changes and other factors.

The following reference prices were utilized in the determination of reserves and future net revenue:

 

      Natural Gas    Oil  
     

Henry Hub

($/MMBtu)

   

AECO  

(C$/MMBtu)  

  

WTI

($/bbl)

    

Edmonton  

Light Sweet  

(C$/bbl) 

 
 

Reserves Pricing (1)

            

2014

     4.34      4.63        94.99         96.40     

2015

     2.58      2.69        50.28         58.82     

2016

     2.49      2.17        42.75         52.21     
(1)

All prices were held constant in all future years when estimating net revenues and reserves.

 

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PROVED RESERVES

(12-MONTH AVERAGE TRAILING PRICES)

 

     

Natural Gas

(Bcf)

   

Oil

(MMbbls)

   

NGLs

(MMbbls)

   

Total

(MMBOE)

 
      Canada    

United

States

    Total     Canada    

United

States

    Total     Canada    

United

States

    Total         

2014

                    

Beginning of year

     3,975        3,877        7,852        22.8        54.5        77.3        87.4        56.1        143.5        1,529.5   

Revisions and improved recovery

     250        (511     (261     (5.0     (2.7     (7.7     10.9        (2.6     8.3        (42.9

Extensions and discoveries

     385        493        879        4.7        21.4        26.1        22.3        8.8        31.1        203.7   

Purchase of reserves in place

     6        234        240        -        148.2        148.2        0.1        52.9        53.0        241.1   

Sale of reserves in place

     (885     (1,473     (2,358     (6.6     (14.2     (20.8     (45.5     (20.0     (65.4     (479.2

Production

     (503     (355     (858     (5.0     (13.1     (18.0     (8.6     (5.0     (13.6     (174.6

End of year

     3,229        2,265        5,494        10.9        194.1        205.0        66.6        90.2        156.7        1,277.4   

Developed

     2,282        1,606        3,887        8.2        112.3        120.5        31.6        53.4        85.0        853.4   

Undeveloped

     947        660        1,607        2.8        81.8        84.5        34.9        36.8        71.7        424.0   

Total

     3,229        2,265        5,494        10.9        194.1        205.0        66.6        90.2        156.7        1,277.4   

2015

                    

Beginning of year

     3,229        2,265        5,494        10.9        194.1        205.0        66.6        90.2        156.7        1,277.4   

Revisions and improved recovery

     (801     (342     (1,144     (0.9     (73.6     (74.6     (14.8     (41.1     (55.9     (321.1

Extensions and discoveries

     313        159        472        -        68.4        68.4        19.8        24.9        44.7        191.7   

Purchase of reserves in place

     -        -        -        -        -        -        -        -        -        -   

Sale of reserves in place

     (434     (728     (1,163     (1.6     (1.2     (2.8     (0.4     (3.6     (4.0     (200.6

Production

     (354     (241     (596     (2.0     (29.7     (31.8     (8.3     (8.6     (16.9     (148.0

End of year

     1,952        1,112        3,064        6.4        157.9        164.3        62.8        61.7        124.5        799.4   

Developed

     1,295        928        2,223        5.0        91.6        96.6        31.8        37.8        69.5        536.6   

Undeveloped

     657        184        841        1.3        66.3        67.7        31.0        24.0        55.0        262.8   

Total

     1,952        1,112        3,064        6.4        157.9        164.3        62.8        61.7        124.5        799.4   

2016

                    

Beginning of year

     1,952        1,112        3,064        6.4        157.9        164.3        62.8        61.7        124.5        799.4   

Revisions and improved recovery

     (422     177        (244     (0.3     (15.6     (15.9     (6.4     (1.6     (8.0     (64.7

Extensions and discoveries

     796        91        887        -        52.2        52.2        58.1        17.7        75.8        275.7   

Purchase of reserves in place

     -        16        16        -        9.6        9.6        -        2.6        2.6        14.9   

Sale of reserves in place

     (163     (150     (313     (5.4     (22.2     (27.6     (11.3     (15.5     (26.8     (106.5

Production

     (354     (153     (506     (0.7     (26.2     (27.0     (9.2     (8.5     (17.7     (129.1

End of year

     1,810        1,093        2,902        -        155.6        155.6        94.0        56.4        150.4        789.7   

Developed

     903        951        1,853        -        82.5        82.5        25.6        31.8        57.4        448.8   

Undeveloped

     907        142        1,049        -        73.1        73.1        68.4        24.6        93.0        341.0   

Total

     1,810        1,093        2,902        -        155.6        155.6        94.0        56.4        150.4        789.7   

* Numbers may not add due to rounding

Definitions:

  a.

“Proved” oil and gas reserves are those quantities of oil and gas which, by analysis of geoscience and engineering data, can be estimated with reasonable certainty to be economically producible from a given date forward, from known reservoirs, and under existing economic conditions, operating methods and government regulations.

  b.

“Developed” oil and gas reserves are reserves of any category that are expected to be recovered through existing wells with existing equipment and operating methods or in which the cost of the required equipment is relatively minor compared to the cost of a new well.

  c.

“Undeveloped” oil and gas reserves are reserves of any category that are expected to be recovered from new wells on undrilled acreage, or from existing wells where a relatively major expenditure is required for recompletion.

 

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Total Proved reserves decreased 9.7 MMBOE in 2016 due to the following:

 

   

Revisions and improved recovery of natural gas included a reduction of 462 Bcf due to a lower 12-month average trailing natural gas price. Revisions and improved recovery of oil and NGLs included reductions of 6.5 MMbbls and 6.6 MMbbls, respectively, due to lower 12-month average trailing oil and NGL prices.

 

   

Extensions and discoveries of natural gas, oil and NGLs increased proved reserves by 275.7 MMBOE due to the extension of proved acreage primarily from successful drilling in the Permian and Montney assets.

 

   

Sale of reserves in place decreased proved developed reserves by 65.4 MMBOE and proved undeveloped reserves by 41.2 MMBOE due to the divestitures of the DJ Basin assets located in northern Colorado and the Gordondale assets located in northwestern Alberta.

Total Proved reserves decreased 478.0 MMBOE in 2015 due to the following:

 

   

Revisions and improved recovery of natural gas included a reduction of 1,106 Bcf due to a significantly lower 12-month average trailing natural gas price. Revisions and improved recovery of oil and NGLs included reductions of 59.9 MMbbls and 52.6 MMbbls, respectively, due to significantly lower 12-month average trailing oil and NGL prices.

 

   

Extensions and discoveries of natural gas, oil and NGLs increased proved reserves by 191.7 MMBOE due to the extension of proved acreage primarily from successful drilling in the Montney and Permian assets.

 

   

Sale of reserves in place decreased proved developed reserves by 137.4 MMBOE and proved undeveloped reserves by 63.2 MMBOE due to the divestitures of the Haynesville natural gas assets located in northern Louisiana and certain assets in Wheatland located in central and southern Alberta.

Total Proved reserves decreased 252.1 MMBOE in 2014 due to the following:

 

   

Revisions and improved recovery of natural gas included a reduction of 520 Bcf due to changes in the proved undeveloped reserves bookings in the U.S. This was a result of the Company’s strategic transition to a more balanced commodity portfolio.

 

   

Extensions and discoveries of natural gas, oil and NGLs increased proved reserves by 203.7 MMBOE due to the extension of proved acreage primarily from successful drilling in the Montney and DJ Basin assets.

 

   

Purchases of reserves in place increased proved developed reserves by 141.6 MMBOE and proved undeveloped reserves by 99.5 MMBOE due to the acquisitions of the Eagle Ford assets located in south Texas and the Permian assets located in west Texas.

 

   

Sale of reserves in place decreased proved developed reserves by 271.7 MMBOE and proved undeveloped reserves by 207.5 MMBOE due to the divestitures of the Bighorn assets located in west central Alberta, certain royalty properties in Wheatland, located predominantly in Alberta, the Jonah assets in Wyoming and assets in East Texas.

STANDARDIZED MEASURE OF DISCOUNTED FUTURE NET CASH FLOWS RELATING TO PROVED OIL AND GAS RESERVES

In calculating the standardized measure of discounted future net cash flows, constant price and cost assumptions were applied to Encana’s annual future production from proved reserves to determine cash inflows. Estimates of future net cash flows from proved reserves are computed based on the average beginning-of-the-month prices during the 12-month period for the year. Future production and development costs include estimates for abandonment and dismantlement costs associated with asset retirement obligations and assume the continuation

 

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of existing economic, operating and regulatory conditions. Future income taxes are calculated by applying statutory income tax rates to future pre-tax cash flows after provision for the tax cost of the oil and natural gas properties based upon existing laws and regulations. The effect of tax credits is also considered in determining the income tax expense. The discount was computed by application of a 10 percent discount factor to the future net cash flows.

Encana cautions that the discounted future net cash flows relating to proved oil and gas reserves are an indication of neither the fair market value of Encana’s oil and gas properties, nor the future net cash flows expected to be generated from such properties. The discounted future net cash flows do not include the fair market value of exploratory properties and probable or possible oil and gas reserves, nor is consideration given to the effect of anticipated future changes in oil and natural gas prices, development, asset retirement and production costs, and possible changes to tax and royalty regulations. The prescribed discount rate of 10 percent may not appropriately reflect future interest rates.

 

      Canada      United States  
      2016      2015      2014      2016      2015      2014  
 

Future cash inflows

   $         5,341      $         6,284      $         19,255      $         8,537      $         9,462      $         26,742  

Less future:

                   

Production costs

     2,876        3,800        7,456        3,539        3,959        6,673  

Development costs

     1,925        1,725        3,276        2,779        3,092        4,087  

Income taxes

     -        -        1,727        -        -        2,886  

Future net cash flows

     540        759        6,796        2,219        2,411        13,096  

Less 10% annual discount for estimated
timing of cash flows

     99        122        2,320        972        984        6,015  

Discounted future net cash flows

   $ 441      $ 637      $ 4,476      $ 1,247      $ 1,427      $ 7,081  
                              Total  
                              2016      2015      2014  

Future cash inflows

            $ 13,878      $ 15,746      $         45,997  

Less future:

                 

Production costs

              6,415        7,759        14,129  

Development costs

              4,704        4,817        7,363  

Income taxes

                                -        -        4,613  

Future net cash flows

              2,759        3,170        19,892  

Less 10% annual discount for estimated
timing of cash flows

                                1,071        1,106        8,335  

Discounted future net cash flows

                              $         1,688      $         2,064      $ 11,557  

CHANGES IN STANDARDIZED MEASURE OF DISCOUNTED FUTURE NET CASH FLOWS RELATING TO PROVED OIL AND GAS RESERVES

 

      Canada      United States  
      2016         2015         2014         2016         2015         2014     
 

Balance, beginning of year

   $         637         $         4,476         $         4,659         $         1,427         $         7,081         $         4,158     

Changes resulting from:

                   

Sales of oil and gas produced during the year

     (294)          (969)          (2,120)          (1,011)          (1,250)          (1,746)    

Discoveries and extensions, net of related costs

     212           109           827           269           504           1,429     

Purchases of proved reserves in place

     -           -           9           47           -           3,052     

Sales and transfers of proved reserves in place

     (71)          (674)          (1,320)          (220)          (1,604)          (1,902)    

Net change in prices and production costs

     (1)          (3,094)          1,777           302           (3,266)          2,567     

Revisions to quantity estimates

     (124)          (1,355)          314           39           (2,183)          (616)    

Accretion of discount

     64           565           515           143           834           503     

Previously estimated development
costs incurred, net of change in
future development costs

     17           435           532           246           263           (3)    

Other

     1           (32)          (36)          5           (210)          24     

Net change in income taxes

     -           1,176           (681)          -           1,258           (385)    

Balance, end of year

   $ 441         $ 637         $ 4,476         $         1,247         $ 1,427         $ 7,081     

 

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      Total  
      2016         2015         2014     

Balance, beginning of year

   $         2,064          $ 11,557          $         8,817      

Changes resulting from:

        

Sales of oil and gas produced during the year

     (1,305)           (2,219)           (3,866)     

Discoveries and extensions, net of related costs

     481            613            2,256      

Purchases of proved reserves in place

     47            -            3,061      

Sales and transfers of proved reserves in place

     (291)           (2,278)           (3,222)     

Net change in prices and production costs

     301            (6,360)           4,344      

Revisions to quantity estimates

     (85)           (3,538)           (302)     

Accretion of discount

     207            1,399            1,018      

Previously estimated development costs incurred,
net of change in future development costs

     263            698            529      

Other

     6            (242)           (12)     

Net change in income taxes

     -            2,434            (1,066)     

Balance, end of year

   $ 1,688          $         2,064          $ 11,557      

RESULTS OF OPERATIONS

The following table sets forth revenue and direct cost information relating to the Company’s oil and gas exploration and production activities.

 

      Canada      United States  
      2016         2015         2014         2016         2015         2014     

Oil, natural gas and NGL revenues, net of transportation and processing

   $         491          $         1,168          $         2,475          $         1,510          $         1,911          $         2,244      

Less:

                   

Operating costs, production, mineral and other taxes, and accretion of asset retirement obligation

     197            199            355            499            661            498      

Depreciation, depletion and amortization

     260            305            625            523            1,088            992      

Impairments

     493            -            -            903            6,473            -      

Operating income (loss)

     (459)           664            1,495            (415)           (6,311)           754      

Income taxes

     (123)           179            376            (150)           (2,285)           273      

Results of operations

   $ (336)         $ 485          $ 1,119          $ (265)         $ (4,026)         $ 481      

 

      Total  
      2016         2015         2014     

Oil, natural gas and NGL revenues, net of
transportation and processing

   $         2,001          $         3,079          $         4,719      

Less:

        

Operating costs, production, mineral and other taxes,
and accretion of asset retirement obligation

     696            860            853      

Depreciation, depletion and amortization

     783            1,393            1,617      

Impairments

     1,396            6,473            -      

Operating income (loss)

     (874)           (5,647)           2,249      

Income taxes

     (273)           (2,106)           649      

Results of operations

   $ (601)         $ (3,541)         $ 1,600      

 

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CAPITALIZED COSTS

Capitalized costs include the cost of properties, equipment and facilities for oil and natural gas producing activities. Capitalized costs for proved properties include costs for oil and natural gas leaseholds where proved reserves have been identified, development wells and related equipment and facilities, including development wells in progress. Capitalized costs for unproved properties include costs for acquiring oil and gas leaseholds where no proved reserves have been identified.

 

      Canada      United States  
      2016         2015         2014         2016         2015         2014     
 

Proved oil and gas properties

   $         13,159          $         14,866          $         18,271          $         26,393          $         25,723          $         24,279      

Unproved oil and gas properties

     285            334            478            4,913            5,282            5,655      

Total capital cost

     13,444            15,200            18,749            31,306            31,005            29,934      

Accumulated DD&A

     12,896            14,170            16,566            25,300            23,822            16,260      

Net capitalized costs

   $ 548          $ 1,030          $ 2,183          $ 6,006          $ 7,183          $ 13,674      
                 
      Other      Total  
      2016         2015         2014         2016         2015         2014     
 

Proved oil and gas properties

   $         58          $         58          $         65          $         39,610          $         40,647          $         42,615      

Unproved oil and gas properties

     -            -            -            5,198            5,616            6,133      

Total capital cost

     58            58            65            44,808            46,263            48,748      

Accumulated DD&A

     58            58            65            38,254            38,050            32,891      

Net capitalized costs

   $ -          $ -          $ -          $ 6,554          $ 8,213          $ 15,857      

COSTS INCURRED

Costs incurred includes both capitalized costs and costs charged to expense when incurred. Costs incurred also includes internal costs directly related to acquisition, exploration, and development activities, new asset retirement costs established in the current year as well as increases or decreases to the asset retirement obligations resulting from changes to cost estimates during the year.

 

      Canada      United States (1,2)  
      2016         2015         2014         2016         2015         2014     

Acquisition costs

                   

Unproved

   $             -          $             2          $             15          $             4          $             15          $             5,452      

Proved

     1            7            6            205            12            5,008      

Total acquisition costs

     1            9            21            209            27            10,460      

Exploration costs

     1            3            10            13            3            38      

Development costs

     255            377            1,216            860            1,844            1,247      

Total costs incurred

   $ 257          $ 389          $ 1,247          $ 1,082          $ 1,874          $ 11,745      

 

      Total (1,2)  
      2016         2015         2014     

Acquisition costs

        

Unproved

   $             4          $             17          $             5,467      

Proved

     206            19            5,014      

Total acquisition costs

     210            36            10,481      

Exploration costs

     14            6            48      

Development costs

     1,115            2,221            2,463      

Total costs incurred

   $ 1,339          $ 2,263          $ 12,992      
(1)  

2014 Unproved includes $5,338 million from the acquisition of Athlon.

(2)  

2014 Proved includes $2,127 million from the acquisition of Athlon.

 

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COSTS NOT SUBJECT TO DEPLETION OR AMORTIZATION

Upstream costs in respect of significant unproved properties are excluded from the country cost centre’s depletable base as follows:

 

As at December 31    2016        2015    

Canada

   $ 285        $ 334    

United States

     4,913          5,282    
     $             5,198        $             5,616    

The following is a summary of the costs related to Encana’s unproved properties as at December 31, 2016:

 

      2016      2015      2014      Prior to 2014      Total    

Acquisition Costs

   $ 104      $ 28      $ 4,733      $ 198      $ 5,063    

Exploration Costs

     5        8        50        72        135    
     $             109      $             36      $             4,783      $             270      $             5,198    

Ultimate recoverability of these costs and the timing of inclusion within the applicable country cost centre’s depletable base is dependent upon either the finding of proved natural gas and liquids reserves, expiration of leases or recognition of impairments. Acquisition costs primarily include costs incurred to acquire or lease properties. Exploration costs primarily include costs related to geological and geophysical studies and costs of drilling and equipping exploratory wells.

 

 28.   Supplemental Quarterly Financial Information (unaudited)

The following summarizes quarterly financial data for the fiscal years of 2016 and 2015:

 

      2016  
(US$ millions, except per share amounts)    Q4      Q3      Q2      Q1    

Revenues

   $             822     $             979     $             364     $             753    

Impairments

   $ -     $ -     $ 484     $ 912    

Operating Income (Loss)

   $ (54   $ 128     $ (912   $ (1,043)   

Gain (Loss) on Divestitures, net

   $ (3   $ 395     $ (2   $ -    

Net Earnings (Loss) Before Income Tax

   $ (251   $ 379     $ (1,068   $ (680)   

Income Tax Expense (Recovery)

     30       62       (467     (301)   

Net Earnings (Loss)

   $ (281   $ 317     $ (601   $ (379)   

Net Earnings (Loss) per Common Share - Basic & Diluted

   $ (0.29   $ 0.37     $ (0.71   $ (0.45)   
      2015  
(US$ millions, except per share amounts)    Q4     Q3     Q2     Q1    

Revenues

   $             1,031     $             1,312     $ 830     $             1,249    

Impairments

   $ 805     $ 1,671     $             2,081     $ 1,916    

Operating Income (Loss)

   $ (682   $ (1,379   $ (2,354   $ (1,886)   

Gain (Loss) on Divestitures, net

   $ -     $ (2   $ 2     $ 14    

Net Earnings (Loss) Before Income Tax

   $ (977   $ (1,831   $ (2,548   $ (2,654)   

Income Tax Expense (Recovery)

     (365     (595     (938     (947)   

Net Earnings (Loss)

   $ (612   $ (1,236   $ (1,610   $ (1,707)   

Net Earnings (Loss) per Common Share - Basic & Diluted

   $ (0.72   $ (1.47   $ (1.91   $ (2.25)   

 

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Item 9: Changes and Disagreements with Accountants on Accounting and Financial Disclosure

The financial statements for the fiscal years ended December 31, 2016, 2015, and 2014, included in this Annual Report on Form 10-K, have been audited by PricewaterhouseCoopers LLP, an independent registered public accounting firm, as stated in their audit report appearing herein. There have been no changes in or disagreements with the accountants during the periods presented.

Item 9A: Controls and Procedures

EVALUATION AND DISCLOSURE CONTROLS AND PROCEDURES

Encana’s Chief Executive Officer and Chief Financial Officer performed an evaluation of the Company’s disclosure controls and procedures as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act. The Company’s disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in reports it files or submits under the Exchange Act is recorded, processed, summarized, and reported within the time periods specified in the rules and forms of the SEC, and to ensure that the information required to be disclosed by the Company in reports that it files or submits under the Exchange Act, is accumulated and communicated to the Company’s management, including the principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding required disclosure. Based on this evaluation, the Chief Executive Officer and Chief Financial Officer have concluded that the Company’s disclosure controls and procedures are effective as of December 31, 2016.

MANAGEMENT’S ANNUAL REPORT ON INTERNAL CONTROL OVER FINANCIAL REPORTING

See “Management’s Assessment of Internal Control Over Financial Reporting” under Item 8 of this Annual Report on Form 10-K.

ATTESTATION REPORT OF THE REGISTERED PUBLIC ACCOUNTING FIRM

See “Report of Independent Registered Public Accounting Firm” under Item 8 of this Annual Report on Form 10-K.

CHANGES IN INTERNAL CONTROL OVER FINANCIAL REPORTING

There were no changes in Encana’s internal control over financial reporting during the fourth quarter of 2016 that materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial reporting. See “Management’s Assessment of Internal Control Over Financial Reporting” under Item 8 of this Annual Report on Form 10-K.

Item 9B. Other Information

None.

 

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PART III

Item 10. Directors, Executive Officers, and Corporate Governance

DIRECTORS AND EXECUTIVE OFFICERS

Information regarding the Board of Directors is set forth in the Proxy Statement relating to the Company’s 2017 annual meeting of shareholders, which is incorporated herein by reference.

Information regarding the Company’s executive officers is located under “Executive Officers of the Registrant” under Item 1 and 2 of this Annual Report on Form 10-K.

CODE OF ETHICS

Encana has adopted a code of ethics entitled the “Business Code of Conduct” (the “Code of Ethics”), that applies to its principal executive officer, principal financial officer, principal accounting officer or controller, and persons performing similar functions. The Code of Ethics is available for viewing on Encana’s website at www.encana.com, and is available in print to any shareholder who requests it. Requests for copies of the Code of Ethics should be made by contacting Encana’s Corporate Secretary, 4400, 500 Centre Street S.E., P.O. Box 2850, Calgary, Alberta T2P 2S5, Canada, telephone: (403) 645-2000. Encana intends to disclose and summarize any amendment to, or waiver from, any provision of the Code of Ethics that is required to be so disclosed and summarized, on its website at www.encana.com.

Item 11. Executive Compensation

The information required by this Item 11 is set forth in the Proxy Statement relating to the Company’s 2017 annual meeting of shareholders, which is incorporated herein by reference.

The executive compensation and related information incorporated by reference herein shall not be deemed “soliciting material” or to be “filed” with the SEC, nor shall such information be incorporated by reference into any future filing under the Securities Act or Exchange Act, except to the extent that the Company specifically incorporates it by reference into such filing.

Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Shareholder Matters

The information required by this Item 12 is set forth in the Proxy Statement relating to the Company’s 2017 annual meeting of shareholders, which is incorporated herein by reference.

Item 13. Certain Relationships and Related Transactions, and Director Independence

The information required by this Item 13 is set forth in the Proxy Statement relating to the Company’s 2017 annual meeting of shareholders, which is incorporated herein by reference.

Item 14. Principal Accounting Fees and Services

The information required by this Item 14 is set forth in the Proxy Statement relating to the Company’s 2017 annual meeting of shareholders, which is incorporated herein by reference.

 

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PART IV

Item 15. Exhibits and Financial Statement Schedules

The following documents are filed as part of this Annual Report on Form 10-K or incorporated by reference:

1. Consolidated Financial Statements

Reference is made to the Consolidated Financial Statements and notes thereto appearing in Item 8 of this Annual Report on Form 10-K.

2. Consolidated Financial Statement Schedules

All financial statement schedules are omitted as they are inapplicable, or the required information has been included in the Consolidated Financial Statements or notes thereto.

3. Exhibits

Exhibits are listed in the exhibit index below. The exhibits include management contracts, compensatory plans and arrangements required to be filed as exhibits to the Annual Report on Form 10-K by Item 601(b)(10)(iii) of Regulation S-K.

 

Exhibit No

  

Description

3.1    Restated Certificate of Incorporation and Restated Articles of Incorporation dated November 30, 2009 (incorporated by reference to Exhibit 99.2 to Encana’s Report on Form 6-K filed on December 2, 2009, SEC File No. 001-15226).
3.2    Certificate of Amendment and Articles of Amendment dated May 12, 2015 (incorporated by reference to Exhibit 99.1 to Encana’s Report on Form 6-K filed on May 19, 2015, SEC File No. 001-15226).
3.3    By-Law No. 1 of Encana Corporation effective February 11, 2014 (incorporated by reference to Exhibit 99.1 to Encana’s Report on Form 6-K filed on May 15, 2014, SEC File No. 001-15226).
4.1    Amended and Restated Shareholder Rights Plan Agreement dated as of May 3, 2016 between Encana Corporation and CST Trust Company as Rights Agent (incorporated by reference to Exhibit 99.1 to Encana’s Report on Form 6-K filed on May 5, 2016, SEC File No. 001-15226).
4.2    Amended and Restated Dividend Reinvestment Plan dated as of March 25, 2013 (incorporated by reference to Exhibit 4.2 to Encana’s Registration Statement on Form F-3 filed on March 25, 2013, SEC File No. 333-187492).
4.3    6.50% Notes due 2019.
4.4    3.90% Notes due 2021.
4.5    8.125% Notes due 2030.
4.6    7.2% Notes due 2031.
4.7    7.375% Notes due 2031.
4.8    6.50% Notes due 2034.
4.9    6.625% Notes due 2037.
4.10    6.50% Notes due 2038.
4.11    5.15% Notes due 2041.
4.12    Indenture dated as of August 13, 2007 between Encana Corporation and The Bank of New York.
4.13    Indenture dated as of November 14, 2011 between Encana Corporation and The Bank of New York Mellon (incorporated by reference to Exhibit 7.1 to Encana’s Registration Statement on Form F-10 filed on May 7, 2012, SEC File No. 333-181196).
4.14    Indenture dated as of September 15, 2000 between Encana Corporation (as successor by amalgamation to Alberta Energy Company Ltd.) and The Bank of New York.
4.15    First Supplemental Indenture dated as of January 1, 2003 to the Indenture dated as of September 15, 2000 between Encana Corporation and The Bank of New York.
4.16    Second Supplemental Indenture dated as of November 20, 2012 to the Indenture dated as of September 15, 2000 between Encana Corporation and The Bank of New York.
4.17    Indenture dated as of November 5, 2001 between Encana Corporation (as successor by amalgamation to PanCanadian Petroleum Limited) and The Bank of Nova Scotia Trust Company of New York.

 

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4.18    First Supplemental Indenture dated as of January 1, 2002 to the Indenture dated as of November 5, 2001 between Encana Corporation (as successor by amalgamation to PanCanadian Petroleum Limited) and The Bank of Nova Scotia Trust Company of New York.
4.19    Second Supplemental Indenture dated as of January 1, 2003 to the Indenture dated as of November 5, 2001 between Encana Corporation and The Bank of Nova Scotia Trust Company of New York.
4.20    Third Supplemental Indenture as of November 20, 2012 to the Indenture dated as of November 5, 2001 between Encana Corporation and The Bank of Nova Scotia Trust Company of New York.
4.21    Fourth Supplemental Indenture dated as of July 24, 2013 to the Indenture dated as of November 5, 2001 between Encana Corporation and The Bank of Nova Scotia Trust Company of New York.
4.22    Indenture dated as of October 2, 2003 between Encana Corporation and The Bank of New York.
4.23    Specimen Common Share Certificate (incorporated by reference to Exhibit 4.2 to Encana’s Registration Statement on Form F-3 filed on July 25, 2016, SEC File No. 333-212667).
10.1    Restated Credit Agreement dated as of July 16, 2015 among Encana Corporation as Borrower, the financial and other institutions named herein therein as Lenders and Royal Bank of Canada as Agent.
10.2    Second Amended and Restated Credit Agreement dated as of October 20, 2011 among Alenco Inc. as Borrower, the banks, financial institutions and other institutional lenders party thereto and Citibank N.A. as Administrative Agent.
10.3    A letter amendment to the Second Amended and Restated Credit Agreement dated as of October 20, 2011 among Alenco Inc. as Borrower, the banks, financial institutions and other institutional lenders party thereto and Citibank N.A. as Administrative Agent, dated as of June 15, 2012.
10.4    Amendment No. 2 to the Second Amended and Restated Credit Agreement dated as of October 20, 2011 among Alenco Inc. as Borrower, the banks, financial institutions and other institutional lenders party thereto and Citibank N.A. as Administrative Agent, dated as of June 28, 2013.
10.5    Amendment No. 3 to the Second Amended and Restated Credit Agreement dated as of October 20, 2011 among Alenco Inc. as Borrower, the banks, financial institutions and other institutional lenders party thereto and Citibank N.A. as Administrative Agent, dated as of July 16, 2015.
10.6*    Encana Corporation Employee Stock Option Plan reflective with amendments made as of April 27, 2005, as of April 25, 2007, as of April 22, 2008, as of October 22, 2008, as of November 30, 2009, as of July 20, 2010, as of February 24, 2015 and as of February 22, 2016.
10.7*    Form of Executive Stock Option Grant Agreement.
10.8*    Encana Corporation Employee Stock Appreciation Rights Plan, adopted with effect from February 12, 2008, as amended December 9, 2008, November 30, 2009, April 20, 2010, July 20, 2010, February 24, 2015, and February 22, 2016.
10.9*    Form of Executive Stock Appreciation Rights Grant Agreement.
10.10*    Performance Share Unit Plan for Employees of Encana Corporation Amended and restated with effect from January 1, 2010, and reflective with amendments made as of July 20, 2010, February 24, 2015, and February 22, 2016.
10.11*    Form of Canadian Executive PSU Grant Agreement.
10.12*    Form of U.S. Executive PSU Grant Agreement.
10.13*    Restricted Share Unit Plan for Employees of Encana Corporation established with effect from February 8, 2011, and reflective with amendments made as of February 24, 2015, and February 22, 2016.
10.14*    Form of Canadian Executive RSU Grant Agreement.
10.15*    Form of U.S. Executive RSU Grant Agreement.
10.16*    Deferred Share Unit Plan for Employees of Encana Corporation adopted with effect from December 18, 2002 and reflective of amendments made as of October 23, 2007, October 22, 2008, and July 20, 2010.
10.17*    Deferred Share Unit Plan for Directors of Encana Corporation adopted with effect from December 18, 2002 and reflective with amendments made as of April 26, 2005, October 22, 2008, December 8, 2009, July 20, 2010, February 13, 2013 and December 1, 2014.
10.18*    Change in Control Agreement between Encana Corporation and Sherri A. Brillon dated January 1, 2007.
10.19*    Change in Control Agreement between Encana Corporation and Renee E. Zemljak dated November 30, 2009.
10.20*    Change in Control Agreement between Encana Corporation and Michael G. McAllister dated February 10, 2011.
10.21*    Change in Control Agreement between Encana Corporation and Douglas J. Suttles dated June 10, 2013.
10.22*    Change in Control Agreement between Encana Corporation and David G. Hill dated January 1, 2014.
10.23*    Change in Control Agreement between Encana Corporation and Michael Williams dated March 10, 2014.
10.24*    Change in Control Agreement between Encana Corporation and Joanne L. Alexander dated January 12, 2015.

 

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10.25*    Form of Director and Officer Indemnification Agreement effective as of July 20, 2016 between Encana Corporation and each of its directors and officers.
10.26*    Encana Corporation Canadian Pension Plan Amended and Restated as of January 1, 2011.
10.27*    Amendment No. 1 to the Encana Corporation Canadian Pension Plan amended and restated as of January 1, 2011, dated as of May 29, 2014.
10.28*    Amendment No. 2 to the Encana Corporation Canadian Pension Plan amended and restated as of January 1, 2011, dated as of November 24, 2014.
10.29*    Amendment No. 3 to the Encana Corporation Canadian Pension Plan amended and restated as of January 1, 2011, dated as of November 30, 2015.
10.30*    Encana Corporation Canadian Supplemental Pension Plan amended and restated effective April 1, 2015.
10.31*    Encana Corporation Canadian Investment Plan effective September 1, 2002.
10.32*    Encana (USA) Retirement Plan amended and restated effective March 14, 2014.
10.33*    Amendment No. 1 to Encana (USA) Retirement Plan amended and restated effective March 14, 2014, dated May 1, 2014.
10.34*    Amendment No. 2 to Encana (USA) Retirement Plan amended and restated effective March 14, 2014, dated August 7, 2014.
10.35*    Amendment No. 3 to Encana (USA) Retirement Plan amended and restated effective March 14, 2014, dated December 28, 2015.
10.36*    Alenco Inc. Deferred Compensation Plan amended and restated effective January 1, 2009.
10.37*    Amendment No. 1 to Alenco Inc. Deferred Compensation Plan amended and restated effective January 1, 2009, effective January 1, 2012.
12.1    Consolidated Statement of Computation of Ratio of Earnings to Fixed Charges.
14.1    Business Code of Conduct effective March 27, 2013 (incorporated by reference to Exhibit 99.1 to Encana’s Report on Form 6-K filed on March 27, 2013, SEC File No. 001-15226).
21.1    Encana Corporation Significant Subsidiaries.
23.1    Consent of PricewaterhouseCoopers LLP.
23.2    Consent of McDaniel & Associates Consultants Ltd.
23.3    Consent of Netherland, Sewell & Associates, Inc.
24.1    Power of Attorney (included on the signature page of this report).
31.1    Certification of Chief Executive Officer pursuant to Rule 13a-14 or 15d-14 of the Securities Exchange Act of 1934.
31.2    Certification of Chief Financial Officer pursuant to Rule 13a-14 or 15d-14 of the Securities Exchange Act of 1934.
32.1    Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350.
32.2    Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350.
99.1    Report of McDaniel & Associates Consultants Ltd.
99.2    Report of Netherland, Sewell & Associates, Inc.
101.INS    XBRL Instance Document.
101.SCH    XBRL Taxonomy Schema Document.
101.CAL    XBRL Calculation Linkbase Document.
101.LAB    XBRL Label Linkbase Document.
101.DEF    XBRL Definition Linkbase Document.

* Management contract or compensatory arrangement.

 

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SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.

 

ENCANA CORPORATION

By:

 

/s/ Sherri A. Brillon

 

Name: Sherri A. Brillon

 

Title: Executive Vice-

          President & Chief Financial Officer

Dated: February 27, 2017

 

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SIGNATURES WITH RESPECT TO ENCANA CORPORATION

POWERS OF ATTORNEY

Each person whose signature appears below hereby constitutes and appoints Douglas J. Suttles and Sherri A. Brillon, and each of them, any of whom may act without the joinder of the other, the true and lawful attorney-in-fact and agent of the undersigned, with full power of substitution and resubstitution, for and in the name, place and stead of the undersigned, in any and all capacities, to sign any and all amendments, including any post-effective amendments, and supplements to this Annual Report on Form 10-K, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission, and hereby grants to such attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

This Power of Attorney may be executed in multiple counterparts, each of which shall be deemed an original, but which taken together shall constitute one instrument.

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, this Annual Report on Form 10-K has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

    

Capacity

  

Date

/s/ Clayton H. Woitas

Clayton H. Woitas

    

Chairman of the Board

of Directors

   February 27, 2017

/s/ Douglas J. Suttles

Douglas J. Suttles

    

President & Chief Executive Officer and

Director (Principal Executive Officer)

   February 27, 2017

/s/ Sherri A. Brillon

Sherri A. Brillon

    

Executive Vice-President

& Chief Financial Officer (Principal Financial

Officer and Principal Accounting Officer)

   February 27, 2017

/s/ Peter A. Dea

Peter A. Dea

    

Corporate Director

   February 27, 2017

/s/ Fred J. Fowler

Fred J. Fowler

    

Corporate Director

   February 27, 2017

/s/ Howard J. Mayson

Howard J. Mayson

    

Corporate Director

   February 27, 2017

/s/ Lee A. McIntire

Lee A. McIntire

    

Corporate Director

   February 27, 2017

/s/ Margaret A. McKenzie

Margaret A. McKenzie

    

Corporate Director

   February 27, 2017

/s/ Suzanne P. Nimocks

Suzanne P. Nimocks

    

Corporate Director

   February 27, 2017

/s/ Jane L. Peverett

Jane L. Peverett

    

Corporate Director

   February 27, 2017

/s/ Brian G. Shaw

Brian G. Shaw

    

Corporate Director

   February 27, 2017

/s/ Bruce G. Waterman

Bruce G. Waterman

    

Corporate Director

   February 27, 2017

 

138

Exhibit 4.3

Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Corporation (as defined below) or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.

Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this certificate may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a successor Depositary or a nominee of such successor Depositary.

ENCANA CORPORATION

6.50% Note due 2019

No. A-1

US$500,000,000       

CUSIP: 292505 AH7

EnCana Corporation, a corporation duly organized and existing under the laws of Canada (herein called the “Corporation”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of US$500,000,000 (FIVE HUNDRED MILLION DOLLARS) on May 15, 2019, at the office or agency of the Corporation referred to below, and to pay interest thereon on November 15, 2009 and semi-annually thereafter, on May 15 and November 15 in each year, from May 4, 2009, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of 6.50% per annum, until the principal hereof is paid or duly provided for, and (to the extent lawful) to pay on demand interest on any overdue interest at the rate borne by the Securities from the date on which such overdue interest becomes payable to the date payment of such interest has been made or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be May 1 or November 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest which is payable but is not punctually paid or duly provided for on any Interest Payment Date shall forthwith cease to be payable to the Holder on the relevant Regular Record Date, and such defaulted interest, and, if applicable, interest on such defaulted interest (to the extent lawful) at the rate specified in the Securities, may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities not less than 10 days prior to such Special Record Date, or may be paid


at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth herein.

 

2


Unless the certificate of authentication hereon has been duly executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the indenture, or be valid or obligatory for any purpose.

IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly executed.

 

 Dated: May 4, 2009

   

ENCANA CORPORATION

   

By:

 

/s/ Randall K. Eresman

     

Name:

 

Randall K. Eresman

     

Title:

 

President &

       

Chief Executive Officer

   

By:

 

/s/ Gerald T. Ince

     

Name:

 

Gerald T. Ince

     

Title:

 

Treasurer

 

 

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

 

This is one of the Securities referred to in, and issued under, the within-mentioned Indenture.

 

Dated: May 4, 2009

    THE BANK OF NEW YORK MELLON,
      as Trustee
   

By

 

/s/ Lesley Daley

      Authorized Signatory

 

3


[Reverse of Security]

This Security is one of a duly authorized issue of securities of the Corporation designated as its 6.50% Notes due 2019 (herein called the “Securities”), which may be issued under an indenture (herein called the “Indenture”) dated as of August 13, 2007 among the Corporation and The Bank of New York Mellon, as trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Corporation, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is a global Security representing US$500,000,000 aggregate principal amount of the Securities of this series.

The Corporation may from time to time without notice to, or the consent of, the Holders, create and issue additional Securities under the Indenture.

Payment of the principal of (and premium, if any, on) and interest, if any, on this Security will be made at the office or agency of the Corporation maintained or caused to be maintained for that purpose, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of the principal (and premium, if any) and interest may be made at the option of the Corporation (i) by check mailed to the address of the Person entitled thereto as such address shall appear on the Security Register, payable to or upon the written order of the Person entitled thereto, or (ii) by wire transfer to an account located in the United States maintained by the payee of a Holder of $5,000,000 or more in aggregate principal amount of the Securities; provided further, that principal paid in relation to any Security, redeemed at the option of the Corporation or upon Maturity, shall be paid to the holder of such Security only upon presentation and surrender of such Security to such office or agency referred to above.

The Securities will not be entitled to the benefits of any sinking fund.

Holders of the Securities will not be entitled to the repayment of the Securities at their option pursuant to Article Thirteen of the Indenture.

The Corporation will pay to the Holders such Additional Amounts as may be payable under Section 1005 of the Indenture.

The Securities are subject to redemption upon not less than 30 nor more than 60 days’ notice, at any time, as a whole or in part, at the election of the Corporation at a redemption price equal to the greater of (1) 100% of the principal amount of the Securities to be redeemed or (2) the sum of the present values of the remaining scheduled payments of principal and interest on the Securities to be redeemed (exclusive of the payments of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30 day months) at the Adjusted Treasury Rate (as defined below) plus 50 basis points, plus, in the case of (1) and (2), accrued interest thereon to the date of redemption.

 

4


“Adjusted Treasury Rate” means, with respect to any redemption date, the rate per year equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.

“Comparable Treasury Issue” means the United States Treasury security or securities selected by the Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Securities to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities.

“Comparable Treasury Price” means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (2) if fewer than four such Reference Treasury Dealer Quotations are obtained, the average or all such quotations.

“Independent Investment Banker” means one of the Reference Treasury Dealers, which is appointed by the Trustee after consultation with the Corporation.

“Reference Treasury Dealers” means each of Banc of America Securities LLC and Deutsche Bank Securities Inc. or their affiliates, plus three others which are primary U.S. Government securities dealers and their respective successors; provided, however, that if any of the foregoing or their affiliates shall cease to be a primary U.S. Government securities dealer in the United States (a “Primary Treasury Dealer”), the Corporation shall substitute for it another Primary Treasury Dealer.

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Reference Treasury Dealer, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted by such Reference Treasury Dealers at 3:30 p.m. New York Time on the third business day preceding such redemption date.

In the case of a partial redemption of Securities, selection of such Securities for redemption will be made pro rata , by lot or such other method as the Trustee in its sole discretion deems appropriate and just. If any Security is redeemed in part, the notice of redemption relating to such Security shall state the portion of the principal amount thereof to be redeemed; provided that no Security in an aggregate principal amount of US$1,000 or less shall be redeemed in part. A replacement Security in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holders thereof upon cancellation of the original Security.

The Securities are subject to redemption as a whole but not in part, at the option of the Corporation, as provided in Section 1108 of the Indenture.

In the case of any redemption of Securities, interest instalments whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record

 

5


Date referred to on the face hereof. Securities (or portions thereof) for whose redemption provision is made in accordance with the Indenture shall cease to bear interest from and after the Redemption Date.

In the event of redemption of this Security in part only, a new Security or Securities for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.

If an Event of Default shall occur and be continuing, the principal of all the Securities, and all accrued and unpaid interest thereon, may be declared due and payable in the manner and with the effect provided in the Indenture.

The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Corporation on this Security and (b) certain restrictive covenants and the related Defaults and Events of Default, upon compliance by the Corporation with certain conditions set forth therein, which provisions apply to this Security.

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Corporation and the rights of the Holders under the Indenture at any time by the Corporation and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of all affected Securities at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities affected thereby, to waive compliance by the Corporation with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security.

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest, if any, on this Security at the times, place, and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable on the Security Register of the Corporation, upon surrender of this Security for registration of transfer at the office or agency of the Corporation maintained or caused to be maintained for such purpose duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Corporation and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

The Securities are issuable only in registered form without coupons in minimum denominations of US$2,000 and integral multiples of $1,000 in excess thereof. As provided in

 

6


the Indenture and subject to certain limitations therein set forth, the Securities are exchangeable for a like aggregate principal amount of Securities of a different authorized denomination, as requested by the Holder surrendering the same.

No service charge shall be made for any registration of transfer or exchange of Securities, but the Corporation may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Except as otherwise provided in the Indenture, prior to the time of due presentment of this Security for registration of transfer, the Corporation, the Trustee and any agent of the Corporation or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Corporation, the Trustee nor any agent shall be affected by notice to the contrary.

Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day months. Solely for the purposes of the Interest Act (Canada), the yearly rate of interest to which interest calculated under a Security for a period of less than one year on the basis of a year of 360 days consisting of twelve 30 day periods is equivalent is such rate of interest multiplied by a fraction of which (i) the numerator is the product of (A) the actual number of days in the year commencing on the first day of such period, multiplied by (B) the sum of (y) the product of 30 multiplied by the number of complete months elapsed in such period and (z) the actual number of days elapsed in any incomplete month in such period; and (ii) the denominator is the product of (A) 360 multiplied by (B) the actual number of days in such period.

If at any time, (i) the Depositary notifies the Corporation that it is unwilling or unable or no longer qualifies to continue as Depositary for these Securities or if at any time the Depositary shall no longer be registered or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation and a successor depositary is not appointed by the Corporation within 90 days after the Corporation receives such notice or becomes aware of such condition, as the case may be, (ii) the Corporation determines that the Securities shall no longer be represented by a global Security or Securities, or (iii) there shall have occurred and be continuing an Event of Default under the Indenture with respect to the Securities and the Trustee has received a written request from a participant in the Depositary in accordance with the Depositary’s customary procedures to issue Securities in definitive form to such participant or other beneficial owner specified by such participant to the Trustee in writing, then in such event the Corporation will execute and the Trustee will authenticate and deliver Securities in definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of this Security in exchange for this Security. Such Securities in definitive registered form shall be registered in such names and issued in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.

The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York.

 

7


All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

8

Exhibit 4.4

Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Corporation (as defined below) or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.

Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this certificate may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a successor Depositary or a nominee of such successor Depositary.

ENCANA CORPORATION

3.90% Note due 2021

No. A-1

US$500,000,000     

CUSIP: 292505AJ3

Encana Corporation, a corporation duly organized and existing under the laws of Canada (herein called the “Corporation”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of US$500,000,000 (FIVE HUNDRED MILLION DOLLARS) on November 15, 2021, at the office or agency of the Corporation referred to below, and to pay interest thereon on May 15, 2012 and semi-annually thereafter, on May 15 and November 15 in each year, from November 14, 2011, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of 3.90% per annum, until the principal hereof is paid or duly provided for, and (to the extent lawful) to pay on demand interest on any overdue interest at the rate borne by the Securities from the date on which such overdue interest becomes payable to the date payment of such interest has been made or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be May 1 or November 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest which is payable but is not punctually paid or duly provided for on any Interest Payment Date shall forthwith cease to be payable to the Holder on the relevant Regular Record Date, and such defaulted interest, and, if applicable, interest on such defaulted interest (to the extent lawful) at the rate specified in the Securities, may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities not less than 10 days prior to such Special


Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth herein.

 

2


Unless the certificate of authentication hereon has been duly executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly executed.

 

 

Dated: November 14, 2011       ENCANA CORPORATION
      By:  

/s/ Sherri A. Brillon

       

Name:

Title:

  

Sherri A. Brillon

Executive Vice-President &

Chief Financial Officer

      By:  

/s/ Gerald T. Ince

       

Name:

Title:

  

Gerald T. Ince

Treasurer

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Securities of the series designated and referred to in, and issued under, the within-mentioned Indenture.

 

Dated: November 14, 2011      THE BANK OF NEW YORK MELLON,
       as Trustee
     By  

/s/ Erika Walker

       Authorized Signatory

 

3


[Reverse of Security]

This Security is one of a duly authorized issue of securities of the Corporation designated as its 3.90% Notes due 2021 (herein called the “Securities”), which may be issued under an indenture (herein called the “Indenture”) dated as of November 14, 2011 among the Corporation and The Bank of New York Mellon, as trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Corporation, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is a global Security representing US$500,000,000 aggregate principal amount of the Securities of this series.

The Corporation may from time to time without notice to, or the consent of, the Holders, create and issue additional Securities under the Indenture.

Payment of the principal of (and premium, if any, on) and interest, if any, on this Security will be made at the office or agency of the Corporation maintained or caused to be maintained for that purpose, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, that principal paid in relation to any Security, redeemed at the option of the Corporation or upon Maturity, shall be paid to the holder of such Security only upon presentation and surrender of such Security to such office or agency referred to above.

The Securities will not be entitled to the benefits of any sinking fund.

Holders of the Securities will not be entitled to the repayment of the Securities at their option pursuant to Article Thirteen of the Indenture.

The Corporation will pay to the Holders such Additional Amounts as may be payable under Section 1005 of the Indenture.

Prior to August 15, 2021, the Securities will be redeemable, upon not less than 30 nor more than 60 days’ notice, at any time, as a whole or in part, at the option of the Corporation at a redemption price equal to the greater of (1) 100% of the principal amount of the Securities to be redeemed, and (2) the sum of the present values of the remaining scheduled payments of principal and interest on the Securities to be redeemed (exclusive of the payments of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate (as defined below) plus 30 basis points, plus, in the case of (1) and (2), accrued interest thereon to the date of redemption.

On or after August 15, 2021, the Securities will be redeemable, upon not less than 30 nor more than 60 days’ notice, at any time, as a whole or in part, at the option of the Corporation at a redemption price equal to 100% of the principal amount of the Securities to be redeemed, plus accrued interest thereon to the date of redemption.

 

4


“Adjusted Treasury Rate” means, with respect to any redemption date, the rate per year equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.

“Comparable Treasury Issue” means the United States Treasury security or securities selected by the Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Securities to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities.

“Comparable Treasury Price” means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (2) if fewer than four such Reference Treasury Dealer Quotations are obtained, the average or all such quotations.

“Independent Investment Banker” means one of the Reference Treasury Dealers, which is appointed by the Trustee after consultation with the Corporation.

“Reference Treasury Dealers” means each of Barclays Capital Inc., BNP Paribas Securities Corp. and J.P. Morgan Securities LLC or their affiliates, plus two others which are primary U.S. Government securities dealers and their respective successors; provided, however, that if any of the foregoing or their affiliates shall cease to be a primary U.S. Government securities dealer in the United States (a “Primary Treasury Dealer”), the Corporation shall substitute for it another Primary Treasury Dealer.

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Reference Treasury Dealer, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted by such Reference Treasury Dealers at 3:30 p.m. New York Time on the third business day preceding such redemption date.

In the case of a partial redemption of Securities, selection of such Securities for redemption will be made pro rata, by lot or such other method as the Trustee in its sole discretion deems appropriate and just. If any Security is redeemed in part, the notice of redemption relating to such Security shall state the portion of the principal amount thereof to be redeemed; provided that no Security in an aggregate principal amount of US$2,000 or less shall be redeemed in part. A replacement Security in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holders thereof upon cancellation of the original Security.

The Securities are subject to redemption as a whole but not in part, at the option of the Corporation, as provided in Section 1108 of the Indenture.

 

5


In the case of any redemption of Securities, interest instalments whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Date referred to on the face hereof. Securities (or portions thereof) for whose redemption provision is made in accordance with the Indenture shall cease to bear interest from and after the Redemption Date.

In the event of redemption of this Security in part only, a new Security or Securities for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.

If an Event of Default shall occur and be continuing, the principal of all the Securities, and all accrued and unpaid interest thereon, may be declared due and payable in the manner and with the effect provided in the Indenture.

The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Corporation on this Security and (b) certain restrictive covenants and the related Defaults and Events of Default, upon compliance by the Corporation with certain conditions set forth therein, which provisions apply to this Security.

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Corporation and the rights of the Holders under the Indenture at any time by the Corporation and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of all affected Securities at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities affected thereby, to waive compliance by the Corporation with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security.

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest, if any, on this Security at the times, place, and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable on the Security Register of the Corporation, upon surrender of this Security for registration of transfer at the office or agency of the Corporation maintained or caused to be maintained for such purpose duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Corporation and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

 

6


The Securities are issuable only in registered form in minimum denominations of US$2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Securities are exchangeable for a like aggregate principal amount of Securities of a different authorized denomination, as requested by the Holder surrendering the same.

No service charge shall be made for any registration of transfer or exchange of Securities, but the Corporation and the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Except as otherwise provided in the Indenture, prior to the time of due presentment of this Security for registration of transfer, the Corporation, the Trustee and any agent of the Corporation or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and none of the Corporation, the Trustee or any agent shall be affected by notice to the contrary.

Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day months. Solely for the purposes of disclosure under the Interest Act (Canada) and without affecting the calculation of the amount of interest owing on the Securities, the yearly rate of interest to which interest calculated under a Security for a period of less than one year on the basis of a year of 360 days consisting of twelve 30 day months (the “calculation period”) is equivalent will be such rate of interest multiplied by a fraction of which (i) the numerator is the product of (A) the actual number of days in the year commencing on the first day of such calculation period, multiplied by (B) the sum of (y) the product of 30 multiplied by the number of complete months elapsed in such calculation period and (z) the actual number of days elapsed in any incomplete month in such calculation period; and (ii) the denominator is the product of (A) 360 multiplied by (B) the actual number of days in such calculation period.

If at any time, (i) the Depositary notifies the Corporation that it is unwilling or unable or no longer qualifies to continue as Depositary for these Securities or if at any time the Depositary shall no longer be registered or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation and a successor depositary is not appointed by the Corporation within 90 days after the Corporation receives such notice or becomes aware of such condition, as the case may be, (ii) the Corporation determines that the Securities shall no longer be represented by a global Security or Securities, or (iii) there shall have occurred and be continuing an Event of Default under the Indenture with respect to the Securities and the Trustee has received a written request from the Depositary or a participant in the Depositary in accordance with the Depositary’s customary procedures to issue Securities in definitive form to such participant or other beneficial owner specified by such participant to the Trustee in writing, then in such event the Corporation will execute and the Trustee will authenticate and deliver Securities in definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of this Security in exchange for this Security. Such Securities in definitive registered form shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.

 

7


The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York.

All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

8


Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Corporation (as defined below) or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.

Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this certificate may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a successor Depositary or a nominee of such successor Depositary.

ENCANA CORPORATION

3.90% Note due 2021

No. A-2

US$100,000,000     

CUSIP: 292505AJ3

Encana Corporation, a corporation duly organized and existing under the laws of Canada (herein called the “Corporation”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of US$100,000,000 (ONE HUNDRED MILLION DOLLARS) on November 15, 2021, at the office or agency of the Corporation referred to below, and to pay interest thereon on May 15, 2012 and semi-annually thereafter, on May 15 and November 15 in each year, from November 14, 2011, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of 3.90% per annum, until the principal hereof is paid or duly provided for, and (to the extent lawful) to pay on demand interest on any overdue interest at the rate borne by the Securities from the date on which such overdue interest becomes payable to the date payment of such interest has been made or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be May 1 or November 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest which is payable but is not punctually paid or duly provided for on any Interest Payment Date shall forthwith cease to be payable to the Holder on the relevant Regular Record Date, and such defaulted interest, and, if applicable, interest on such defaulted interest (to the extent lawful) at the rate specified in the Securities, may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities not less than 10 days prior to such Special


Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth herein.

 

2


Unless the certificate of authentication hereon has been duly executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly executed.

 

Dated: November 14, 2011

   

ENCANA CORPORATION

   

By:

 

/s/ Sherri A. Brillon

     

Name:

Title:

 

Sherri A. Brillon

Executive Vice-President &

Chief Financial Officer

   

By:

 

/s/ Gerald T. lnce

     

Name:

 

Gerald T. Ince

     

Title:

 

Treasurer

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Securities of the series designated and referred to in, and issued under, the within-mentioned Indenture.

 

Dated: November 14, 2011          THE BANK OF NEW YORK MELLON,
         as Trustee
         By   /s/ Erika Walker
         Authorized Signatory

 

3


[Reverse of Security]

This Security is one of a duly authorized issue of securities of the Corporation designated as its 3.90% Notes due 2021 (herein called the “Securities”), which may be issued under an indenture (herein called the “Indenture”) dated as of November 14, 2011 among the Corporation and The Bank of New York Mellon, as trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Corporation, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is a global Security representing US$100,000,000 aggregate principal amount of the Securities of this series.

The Corporation may from time to time without notice to, or the consent of, the Holders, create and issue additional Securities under the Indenture.

Payment of the principal of (and premium, if any, on) and interest, if any, on this Security will be made at the office or agency of the Corporation maintained or caused to be maintained for that purpose, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, that principal paid in relation to any Security, redeemed at the option of the Corporation or upon Maturity, shall be paid to the holder of such Security only upon presentation and surrender of such Security to such office or agency referred to above.

The Securities will not be entitled to the benefits of any sinking fund.

Holders of the Securities will not be entitled to the repayment of the Securities at their option pursuant to Article Thirteen of the Indenture.

The Corporation will pay to the Holders such Additional Amounts as may be payable under Section 1005 of the Indenture.

Prior to August 15, 2021, the Securities will be redeemable, upon not less than 30 nor more than 60 days’ notice, at any time, as a whole or in part, at the option of the Corporation at a redemption price equal to the greater of (1) 100% of the principal amount of the Securities to be redeemed, and (2) the sum of the present values of the remaining scheduled payments of principal and interest on the Securities to be redeemed (exclusive of the payments of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate (as defined below) plus 30 basis points, plus, in the case of (1) and (2), accrued interest thereon to the date of redemption.

On or after August 15, 2021, the Securities will be redeemable, upon not less than 30 nor more than 60 days’ notice, at any time, as a whole or in part, at the option of the Corporation at a redemption price equal to 100% of the principal amount of the Securities to be redeemed, plus accrued interest thereon to the date of redemption.

 

4


“Adjusted Treasury Rate” means, with respect to any redemption date, the rate per year equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.

“Comparable Treasury Issue” means the United States Treasury security or securities selected by the Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Securities to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities.

“Comparable Treasury Price” means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (2) if fewer than four such Reference Treasury Dealer Quotations are obtained, the average or all such quotations.

“Independent Investment Banker” means one of the Reference Treasury Dealers, which is appointed by the Trustee after consultation with the Corporation.

“Reference Treasury Dealers” means each of Barclays Capital Inc., BNP Paribas Securities Corp. and J.P. Morgan Securities LLC or their affiliates, plus two others which are primary U.S. Government securities dealers and their respective successors; provided, however, that if any of the foregoing or their affiliates shall cease to be a primary U.S. Government securities dealer in the United States (a “Primary Treasury Dealer”), the Corporation shall substitute for it another Primary Treasury Dealer.

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Reference Treasury Dealer, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted by such Reference Treasury Dealers at 3:30 p.m. New York Time on the third business day preceding such redemption date.

In the case of a partial redemption of Securities, selection of such Securities for redemption will be made pro rata, by lot or such other method as the Trustee in its sole discretion deems appropriate and just. If any Security is redeemed in part, the notice of redemption relating to such Security shall state the portion of the principal amount thereof to be redeemed; provided that no Security in an aggregate principal amount of US$2,000 or less shall be redeemed in part. A replacement Security in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holders thereof upon cancellation of the original Security.

The Securities are subject to redemption as a whole but not in part, at the option of the Corporation, as provided in Section 1108 of the Indenture.

 

5


In the case of any redemption of Securities, interest instalments whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Date referred to on the face hereof. Securities (or portions thereof) for whose redemption provision is made in accordance with the Indenture shall cease to bear interest from and after the Redemption Date.

In the event of redemption of this Security in part only, a new Security or Securities for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.

If an Event of Default shall occur and be continuing, the principal of all the Securities, and all accrued and unpaid interest thereon, may be declared due and payable in the manner and with the effect provided in the Indenture.

The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Corporation on this Security and (b) certain restrictive covenants and the related Defaults and Events of Default, upon compliance by the Corporation with certain conditions set forth therein, which provisions apply to this Security.

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Corporation and the rights of the Holders under the Indenture at any time by the Corporation and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of all affected Securities at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities affected thereby, to waive compliance by the Corporation with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security.

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest, if any, on this Security at the times, place, and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable on the Security Register of the Corporation, upon surrender of this Security for registration of transfer at the office or agency of the Corporation maintained or caused to be maintained for such purpose duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Corporation and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

 

6


The Securities are issuable only in registered form in minimum denominations of US$2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Securities are exchangeable for a like aggregate principal amount of Securities of a different authorized denomination, as requested by the Holder surrendering the same.

No service charge shall be made for any registration of transfer or exchange of Securities, but the Corporation and the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Except as otherwise provided in the Indenture, prior to the time of due presentment of this Security for registration of transfer, the Corporation, the Trustee and any agent of the Corporation or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and none of the Corporation, the Trustee or any agent shall be affected by notice to the contrary.

Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day months. Solely for the purposes of disclosure under the Interest Act (Canada) and without affecting the calculation of the amount of interest owing on the Securities, the yearly rate of interest to which interest calculated under a Security for a period of less than one year on the basis of a year of 360 days consisting of twelve 30 day months (the “calculation period”) is equivalent will be such rate of interest multiplied by a fraction of which (i) the numerator is the product of (A) the actual number of days in the year commencing on the first day of such calculation period, multiplied by (B) the sum of (y) the product of 30 multiplied by the number of complete months elapsed in such calculation period and (z) the actual number of days elapsed in any incomplete month in such calculation period; and (ii) the denominator is the product of (A) 360 multiplied by (B) the actual number of days in such calculation period.

If at any time, (i) the Depositary notifies the Corporation that it is unwilling or unable or no longer qualifies to continue as Depositary for these Securities or if at any time the Depositary shall no longer be registered or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation and a successor depositary is not appointed by the Corporation within 90 days after the Corporation receives such notice or becomes aware of such condition, as the case may be, (ii) the Corporation determines that the Securities shall no longer be represented by a global Security or Securities, or (iii) there shall have occurred and be continuing an Event of Default under the Indenture with respect to the Securities and the Trustee has received a written request from the Depositary or a participant in the Depositary in accordance with the Depositary’s customary procedures to issue Securities in definitive form to such participant or other beneficial owner specified by such participant to the Trustee in writing, then in such event the Corporation will execute and the Trustee will authenticate and deliver Securities in definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of this Security in exchange for this Security. Such Securities in definitive registered form shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.

 

7


The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York.

All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

8

Exhibit 4.5

Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Corporation (as defined below) or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.

Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this certificate may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a successor Depositary or a nominee of such successor Depositary.

ALBERTA ENERGY COMPANY LTD.

8.125% Note due September 15, 2030

 

No. A-1

  

US$300,000,000

  

CUSIP: 012873 AH8

Alberta Energy Company Ltd., a corporation duly organized and existing under the laws of the Province of Alberta, Canada (herein called the “Corporation”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of US$300,000,000 (THREE HUNDRED MILLION UNITED STATES DOLLARS) on September 15, 2030, at the office or agency of the Corporation referred to below, and to pay interest thereon on March 15, 2001 and semi-annually thereafter, on March 15 and September 15 in each year, from September 15, 2000, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of 8.125% per annum, until the principal hereof is paid or duly provided for, and (to the extent lawful) to pay on demand interest on any overdue interest at the rate borne by the Securities from the date on which such overdue interest becomes payable to the date payment of such interest has been made or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the March 1 or September 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date, and such defaulted interest, and (to the extent lawful) interest on such defaulted interest at the rate borne by the Securities, may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities


exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

Unless the certificate of authentication hereon has been duly executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly executed under its corporate seal.

 

                 Dated: September 15 , 2000       ALBERTA ENERGY COMPANY LTD.
      By  

/s/ John D. Watson

        Name: John D. Watson
       

Title:   Vice-President, Finance and

            Chief Financial Officer

      By  

/s/ Bernard K. Lee

        Name: Bernard K. Lee
        Title:   Assistant Treasurer

 

2


TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Securities referred to in, and issued under, the within-mentioned Indenture.

 

THE BANK OF NEW YORK,

      as Trustee

By  

/s/ Luis Perez

  Authorized Signatory

 

3


[Reverse of Security]

This Security is one of a duly authorized issue of securities of the Corporation designated as its 8.125% Notes due 2030 (herein called the “Securities”), limited (except as otherwise provided in the Indenture referred to below) in aggregate principal amount to US$300,000,000, which may be issued under an indenture (herein called the “Indenture”) dated as of September 15, 2000 among the Corporation and The Bank of New York, as trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Corporation, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is a global Security representing US$300,000,000 aggregate principal amount of the Securities.

Payment of the principal of (and premium, if any, on) and interest on this Security will be made at the office or agency of the Corporation maintained or caused to be maintained for that purpose in New York, New York or at such other office or agency of the Corporation as may be maintained or caused to be maintained for such purpose, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of the principal (and premium, if any) and interest may be made at the option of the Corporation (i) by check mailed to the address of the Person entitled thereto as such address shall appear on the Security Register or (ii) by wire transfer to an account maintained by the payee located in the United States; provided, that principal paid in relation to any Security, redeemed at the option of the Corporation or upon Maturity, shall be paid to the holder of such Security only upon presentation and surrender of such Security to such office of agency referred to above.

The Corporation will pay to the Holders such Additional Amounts as may be payable under Section 1005 of the Indenture.

The Securities are subject to redemption upon not less than 30 nor more than 60 days’ notice, at any time, as a whole or in part, at the election of the Corporation at a redemption price equal to the greater of (1) 100% of the principal amount of the Securities or (2) as determined by the Quotation Agent, the sum of the present values of the remaining scheduled payments of principal and interest on the Securities to be redeemed (not including any portion of the payments of interest accrued as of the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30 day months) at the Adjusted Treasury Rate plus 35 basis points, plus, in the case of (1) and (2), accrued interest thereon to the date of redemption, all as provided in the Indenture.

“Adjusted Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for the redemption date.

 

4


“Comparable Treasury Issue” means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the remaining term of the Securities that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt notes of comparable maturity to the remaining term of the Securities.

“Comparable Treasury Price” means, with respect to any redemption date, the average of the Reference Treasury Dealer Quotations for the redemption date.

“Quotation Agent” means one of the Reference Treasury Dealers, to be appointed by the Trustee after consultation with the Corporation.

“Reference Treasury Dealers” means Goldman, Sachs & Co., Credit Suisse First Boston Corporation and J.P. Morgan Securities Inc. and their successors; provided, however, that if any of them shall cease to be a primary U.S. Government securities dealer in New York City (a “Primary Treasury Dealer”), the Corporation shall substitute for it another Primary Treasury Dealer.

“Reference Treasury Dealer Quotations” means, with respect to the Quotation Agent and any redemption date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted by the Quotation Agent at 5:00 p.m. on the third business day preceding the redemption date.

The Securities are subject to redemption as a whole but not in part, at the option of the Corporation, at any time, on not less than 30 nor more than 90 days’ notice, at 100% of the principal amount, together with accrued and unpaid interest to the date fixed for redemption, if the Corporation has become or would become obligated to pay on the next date on which interest is due, any Additional Amounts as a result of any change or amendment to the laws (or regulations or rulings promulgated thereunder) of Canada or any political subdivision or taxing authority thereof or therein or any change in or amendment to any official position or administration or assessing practices regarding the application or interpretation of such laws or regulations, which change or amendment is announced or becomes effective on or after September 12, 2000, all as provided in Section 1108 of the Indenture.

In the case of any redemption of Securities, interest installments whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Date referred to on the face hereof. Securities (or portions thereof) for whose redemption provision is made in accordance with the Indenture shall cease to bear interest from and after the Redemption Date.

In the event of redemption of this Security in part only, a new Security or Securities for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.

 

5


If an Event of Default shall occur and be continuing, the principal of all the Securities may be declared due and payable in the manner and with the effect provided in the Indenture.

The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Corporation on this Security and (b) certain restrictive covenants and the related Defaults and Events of Default, upon compliance by the Corporation with certain conditions set forth therein, which provisions apply to this Security.

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Corporation and the rights of the Holders under the Indenture at any time by the Corporation and the Trustee with the consent of the Holders of a majority in aggregate principal amount of all affected Securities at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities affected thereby, to waive compliance by the Corporation with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security.

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest on this Security at the times, place, and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable on the Security Register of the Corporation, upon surrender of this Security for registration of transfer at the office or agency of the Corporation maintained or caused to be maintained for such purpose in New York, New York duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Corporation and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

The Securities are issuable only in registered form without coupons in denominations of US$1,000 and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Securities are exchangeable for a like aggregate principal amount of Securities of a different authorized denomination, as requested by the Holder surrendering the same.

No service charge shall be made for any registration of transfer or exchange of Securities, but the Corporation may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

 

6


Prior to the time of due presentment of this Security for registration of transfer, the Corporation, the Trustee and any agent of the Corporation or the Trustees may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Corporation, the Trustee nor any agent shall be affected by notice to the contrary.

Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day months. For the purposes of the Interest Act (Canada), the yearly rate of interest which is equivalent to the rate payable hereunder is the rate payable multiplied by the actual number of days in the year and divided by 360.

If at any time, (i) the Depositary notifies the Corporation that it is unwilling or unable or no longer qualifies to continue as Depositary or if at any time the Depositary shall no longer be registered or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation and a successor depositary is not appointed by the Corporation within 90 days after the Corporation receives such notice or becomes aware of such condition, as the case may be, or (ii) the Corporation determines that the Securities shall no longer be represented by a global Security or Securities, then in such event the Corporation will execute and the Trustee will authenticate and deliver Securities in definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of this Security in exchange for this Security. Such Securities in definitive registered form shall be registered in such names and issued in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.

The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York.

All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

7

Exhibit 4.6

GLOBAL NOTE

Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Company (as defined below) or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.

Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this certificate may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a successor Depositary or a nominee of such successor Depositary.

PANCANADIAN PETROLEUM LIMITED

7.2% Note due 2031

 

No. B-1

   US$350,000,000       
   CUSIP: 698900 AG2

PanCanadian Petroleum Limited, a corporation duly organized and existing under the laws of Canada (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of US$350,000,000 (THREE HUNDRED FIFTY MILLION UNITED STATES DOLLARS) on November 1, 2031, at the office or agency of the Company referred to below, and to pay interest thereon on May 1, 2002 and semi-annually thereafter, on May 1 and November 1 in each year, from November 5, 2001, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of 7.2% per annum, until the principal hereof is paid or duly provided for, and (to the extent lawful) to pay on demand interest on any overdue interest at the rate borne by the Securities from the date on which such overdue interest becomes payable to the date payment of such interest has been made or duly provided for.

The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be April 15 or October 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date, and such defaulted interest, and (to the extent lawful) interest on such defaulted interest at the rate borne by the Securities, may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the


Trustee, notice whereof shall be given to Holders of Securities not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

Unless the certificate of authentication hereon has been duly executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

 

2


IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.

 

 Dated: November 5, 2001

   

PANCANADIAN PETROLEUM LIMITED

   

By

 

/s/ Michael A. Grandin

     

Name: Michael A. Grandin

Title: President

   

By

 

/s/ Laurie J. Schuller

     

Name: Laurie J. Schuller

     

Title: CORPORATE SECRETARY

 

3


TRUSTEE’S CERTIFICATE OF AUTHENTICATION

Dated: November 5, 2001

This is one of the Securities of a series referred to in, and issued under, the within-mentioned Indenture.

 

THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK,

as Trustee

By

 

/s/ George E. Timmes

 

            Authorized Officer

 

4


[Reverse of Security]

This Security is one of a duly authorized issue of securities of the Company designated as its 7.2% Notes due 2031 (herein called the “Securities”), initially issued in an aggregate principal amount of US$350,000,000, which may be issued under an indenture (herein called the “Indenture”) dated as of November 5, 2001 among the Company and The Bank of Nova Scotia Trust Company of New York, as trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Company, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is a global Security representing US$350,000,000 aggregate principal amount of the Securities.

Payment of the principal of (and premium, if any, on) and interest on this Security will be made at the office or agency of the Trustee, at One Liberty Plaza, New York, New York 10006, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however , that payment of the principal (and premium, if any) and interest may be made at the option of the Company (i) by check mailed to the address of the Person entitled thereto as such address shall appear on the Security Register or (ii) by wire transfer to an account of the person entitled to receive such payment; provided, that principal paid in relation to any Security, redeemed at the option of the Company or upon Maturity, shall be paid to the holder of such Security only upon presentation and surrender of such Security to such office of agency referred to above.

As provided for in the Indenture, not all of the Securities of this series need be issued at the same time. The Company may from time to time without notice to, or the consent of, the holders of the Securities, create and issue additional Securities under the Indenture, equal in rank to the Securities in all respects (or in all respects except for the payment of interest accruing prior to the issue date of the new Securities or except for the first payment of interest following the issue date of the new Securities) so that the new Securities may be consolidated and form a single series with the Securities and have the same terms as to status, redemption or otherwise as the Securities.

The Company will pay to the Holders such Additional Amounts as may be payable under Section 1005 of the Indenture.

The Securities are subject to redemption upon not less than 30 nor more than 60 days’ notice, at any time, as a whole or in part, at the election of the Company at a redemption price equal to the greater of (1) 100% of the principal amount of the Securities or (2) as determined by the Quotation Agent, the sum of the present values of the remaining scheduled payments of principal and interest on the Securities to be redeemed (not including any portion of the payments of interest accrued as of the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30 day months) at the Adjusted Treasury Rate plus 35 basis points, plus, in the case of (1) and (2), accrued interest thereon to the date of redemption, all as provided in the Indenture.

 

5


“Adjusted Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the semi-annual equivalent yield to maturity or interpolated (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for the redemption date.

“Comparable Treasury Issue” means the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining term of the Securities to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities.

“Comparable Treasury Price” means, with respect to any redemption date (A), the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.

“Quotation Agent” means one of the Reference Treasury Dealers, which is appointed by the Trustee after consultation with the Company.

“Reference Treasury Dealers” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, Salomon Smith Barney Inc., Credit Suisse First Boston Corporation, Deutsche Banc Alex. Brown and Morgan Stanley & Co. Incorporated or their affiliates which are primary U.S. Government securities dealers and their respective successors; provided, however , that if any of the foregoing or the affiliates shall cease to be a primary U.S. Government securities dealer in New York City (a “Primary Treasury Dealer”), the Company shall substitute for it another Primary Treasury Dealer.

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Quotation Agent by such Reference Treasury Dealers, at 3:30 p.m. New York Time on the third business day preceding such redemption date.

The Securities are subject to redemption, in whole but not in part, at the option of the Company, at any time, on not less than 30 nor more than 60 days’ notice, at 100% of the principal amount, together with accrued and unpaid interest to the date fixed for redemption, if the Company has become or will become obligated to pay, on the next succeeding date on which interest is due, any Additional Amounts as a result of any change in or amendment to the laws (or any regulations or rulings promulgated thereunder) of Canada or any political subdivision or taxing authority thereof or therein affecting taxation or any change in official position regarding the application or interpretation of such laws, regulations, or rulings or any action has been taken by any taxing authority of, or any decision has been rendered by a court of competent jurisdiction in Canada or any political subdivision or taxing authority thereof or therein, which change, amendment, action or decision is announced or becomes effective on or after October 31, 2001, and in any such case, the Company in its business judgement determining that such

 

6


obligation cannot be avoided by the use of reasonable measures available to the Company all as provided in Section 1108 of the Indenture.

In the case of any redemption of Securities, interest installments whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Date referred to on the face hereof. Securities (or portions thereof) for whose redemption provision is made in accordance with the Indenture shall cease to bear interest from and after the Redemption Date.

In the event of redemption of this Security in part only, a new Security or Securities for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.

If an Event of Default shall occur and be continuing, the principal of all the Securities may be declared due and payable in the manner and with the effect provided in the Indenture.

The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Company on this Security and (b) certain restrictive covenants and the related Defaults and Events of Default, upon compliance by the Company with certain conditions set forth therein, which provisions apply to this Security.

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal amount of all affected Securities at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities affected thereby, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security.

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest on this Security at the times, place, and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable on the Security Register of the Company, upon surrender of this Security for registration of transfer at the office or agency of the Company maintained or caused to be maintained for such purpose in New York, New York duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in

 

7


writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

The Securities are issuable only in registered form without coupons in denominations of US$1,000 and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Securities are exchangeable for a like aggregate principal amount of Securities of a different authorized denomination, as requested by the Holder surrendering the same.

No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Prior to the time of due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any agent shall be affected by notice to the contrary.

Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day months. For the purposes of the Interest Act (Canada), the yearly rate of interest which is equivalent to the rate payable hereunder is the rate payable multiplied by the actual number of days in the year and divided by 360.

If at any time, (i) the Depositary notifies the Company that it is unwilling or unable or no longer qualifies to continue as Depositary or if at any time the Depositary shall no longer be registered or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation and a successor depositary is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, or (ii) the Company determines that the Securities shall no longer be represented by a global Security or Securities, then in such event the Company will execute and the Trustee will authenticate and deliver Securities in definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of this Security in exchange for this Security. Such Securities in definitive registered form shall be registered in such names and issued in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.

The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York.

All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

8

Exhibit 4.7

Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Corporation (as defined below) or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.

Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this certificate may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a successor Depositary or a nominee of such successor Depositary.

ALBERTA ENERGY COMPANY LTD.

7.375% Note due 2031

 

No. B-1

  

US$400,000,000

  

CUSIP: 012873 AK1

Alberta Energy Company Ltd., a corporation duly organized and existing under the laws of the Province of Alberta, Canada (herein called the “Corporation”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to. Cede & Co., or registered assigns, the principal sum of US$400,000,000 (FOUR HUNDRED MILLION UNITED STATES DOLLARS) on November 1, 2031, at the office or agency of the Corporation referred to below, and to pay interest thereon on May 1, 2002 and semi-annually thereafter, on May 1 and November 1 in each year, from October 26, 2001, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of 7.375% per annum, until the principal hereof is paid or duly provided for, and (to the extent lawful) to pay on demand interest on any overdue interest at the rate borne by the Securities from the date on which such overdue interest becomes payable to the date payment of such interest has been made or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the April 15 or October 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date, and such defaulted interest, and (to the extent lawful) interest on such defaulted interest at the rate borne by the Securities, may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities


exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

Unless the certificate of authentication hereon has been duly executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly executed under its corporate seal.

 

                 Dated: October 26, 2001

       

ALBERTA ENERGY COMPANY LTD.

       

By

 

/s/ John D. Watson

         

Name: John D. Watson

         

Title:   Vice-President, Finance and

            Chief Financial Officer

       

By

 

/s/ Larry L. Whitehead

         

Name: Larry L. Whitehead

         

Title:   Assistant Treasurer


TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Securities referred to in, and issued under, the within-mentioned Indenture.

 

THE BANK OF NEW YORK,

      as Trustee

By

 

/s/ Vanessa Mack

  Authorized Signatory


[Reverse of Security]

This Security is one of a duly authorized issue of securities of the Corporation designated as its 7.375% Notes due 2031 (herein called the “Securities”), initially issued in an aggregate principal amount of US$500,000,000, which may be issued under an indenture (herein called the “Indenture”) dated as of September 15, 2000 among the Corporation and The Bank of New York, as trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Corporation, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is a global Security representing US$400,000,000 aggregate principal amount of the Securities.

Payment of the principal of (and premium, if any, on) and interest on this Security will be made at the office or agency of the Corporation maintained or caused to be maintained for that purpose in New York, New York or at such other office or agency of the Corporation as may be maintained or caused to be maintained for such purpose, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of the principal (and premium, if any) and interest may be made at the option of the Corporation (i) by check mailed to the address of the Person entitled thereto as such address shall appear on the Security Register or (ii) by wire transfer to an account maintained by the payee located in the United States; provided, that principal paid in relation to any Security, redeemed at the option of the Corporation or upon Maturity, shall be paid to the holder of such Security only upon presentation and surrender of such Security to such office of agency referred to above.

The Corporation will pay to the Holders such Additional Amounts as may be payable under Section 1005 of the Indenture.

As provided for in the Indenture, not all of the Securities of this series need be issued at the same time. The Corporation may from time to time without notice to, or the consent of, the holders of the Securities, create and issue additional Securities under the Indenture, equal in rank to the Securities in all respects (or in all respects except for the payment of interest accruing prior to the issue date of the new Securities or except for the first payment of interest following the issue date of the new Securities) so that the new Securities may be consolidated and form a single series with the Securities and have the same terms as to status, redemption or otherwise as the Securities.

The Securities are subject to redemption upon not less than 30 nor more than 60 days’ notice, at any time, as a whole or in part, at the election of the Corporation at a redemption price equal to the greater of (1) 100% of the principal amount of the Securities or (2) as determined by the Quotation Agent, the sum of the present values of the remaining scheduled payments of principal and interest on the Securities to be redeemed (not including any portion of the payments of interest accrued as of the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30 day months) at the


Adjusted Treasury Rate plus 37.5 basis points, plus, in the case of (1) and (2), accrued interest thereon to the date of redemption, all as provided in the Indenture.

“Adjusted Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for the redemption date.

“Comparable Treasury Issue” means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the remaining term of the Securities that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt notes of comparable maturity to the remaining term of the Securities.

“Comparable Treasury Price” means, with respect to any redemption date, the average of the Reference Treasury Dealer Quotations for the redemption date.

“Quotation Agent” means Lehman Brothers Inc. or such other Reference Treasury Dealer appointed by the Corporation.

“Reference Treasury Dealers” means (1) Lehman Brothers Inc. and its successors, provided, however, that if it shall cease to be a primary U.S. Government securities dealer in New York City (a “Primary Treasury Dealer”), the Corporation shall substitute for it another Primary Treasury Dealer and (2) any other Primary Treasury Dealer selected by the Corporation.

“Reference Treasury Dealer Quotations” means, with respect to the Quotation Agent and any redemption date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted by the Quotation Agent at 5:00 p.m. on the third business day preceding the redemption date.

The Securities are subject to redemption as a whole but not in part, at the option of the Corporation, at any time, on not less than 30 nor more than 90 days’ notice, at 100% of the principal amount, together with accrued and unpaid interest to the date fixed for redemption, if the Corporation has become or would become obligated to pay on the next date on which interest is due, any Additional Amounts as a result of any change or amendment to the laws (or regulations or rulings promulgated thereunder) of Canada or any political subdivision or taxing authority thereof or therein or any change in or amendment to any official position or administration or assessing practices regarding the application or interpretation of such laws or regulations, which change or amendment is announced or becomes effective on or after October 22, 2001, all as provided in Section 1108 of the Indenture.

In the case of any redemption of Securities, interest installments whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Date referred to on the face hereof. Securities (or portions thereof) for whose redemption provision is made in accordance with the Indenture shall cease to bear interest from and after the Redemption Date.


In the event of redemption of this Security in part only, a new Security or Securities for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.

If an Event of Default shall occur and be continuing, the principal of all the Securities may be declared due and payable in the manner and with the effect provided in the Indenture.

The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Corporation on this Security and (b) certain restrictive covenants and the related Defaults and Events of Default, upon compliance by the Corporation with certain conditions set forth therein, which provisions apply to this Security.

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Corporation and the rights of the Holders under the Indenture at any time by the Corporation and the Trustee with the consent of the Holders of a majority in aggregate principal amount of all affected Securities at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities affected thereby, to waive compliance by the Corporation with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security.

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest on this Security at the times, place, and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable on the Security Register of the Corporation, upon surrender of this Security for registration of transfer at the office or agency of the Corporation maintained or caused to be maintained for such purpose in New York, New York duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Corporation and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

The Securities are issuable only in registered form without coupons in denominations of US$1,000 and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Securities are exchangeable for a like aggregate principal amount of Securities of a different authorized denomination, as requested by the Holder surrendering the same.


No service charge shall be made for any registration of transfer or exchange of Securities, but the Corporation may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Prior to the time of due presentment of this Security for registration of transfer, the Corporation, the Trustee and any agent of the Corporation or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Corporation, the Trustee nor any agent shall be affected by notice to the contrary.

Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day months. For the purposes of the Interest Act (Canada), the yearly rate of interest which is equivalent to the rate payable hereunder is the rate payable multiplied by the actual number of days in the year and divided by 360.

If at any time, (i) the Depositary notifies the Corporation that it is unwilling or unable or no longer qualifies to continue as Depositary or if at any time the Depositary shall no longer be registered or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation and a successor depositary is not appointed by the Corporation within 90 days after the Corporation receives such notice or becomes aware of such condition, as the case may be, or (ii) the Corporation determines that the Securities shall no longer be represented by a global Security or Securities, then in such event the Corporation will execute and the Trustee will authenticate and deliver Securities in definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of this Security in exchange for this Security. Such Securities in definitive registered form shall be registered in such names and issued in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.

The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York.

All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.


Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Corporation (as defined below) or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.

Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this certificate may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a successor Depositary or a nominee of such successor Depositary.

ALBERTA ENERGY COMPANY LTD.

7.375% Note due 2031

 

No. B-2

   US$100,000,000
   CUSIP: 012873 AK1

Alberta Energy Company Ltd., a corporation duly organized and existing under the laws of the Province of Alberta, Canada (herein called the “Corporation”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of US$100,000,000 (ONE HUNDRED MILLION UNITED STATES DOLLARS) on November 1, 2031, at the office or agency of the Corporation referred to below, and to pay interest thereon on May 1, 2002 and semi-annually thereafter, on May 1 and November 1 in each year, from October 26, 2001, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of 7.375% per annum, until the principal hereof is paid or duly provided for, and (to the extent lawful) to pay on demand interest on any overdue interest at the rate borne by the Securities from the date on which such overdue interest becomes payable to the date payment of such interest has been made or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the April 15 or October 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date, and such defaulted interest, and (to the extent lawful) interest on such defaulted interest at the rate borne by the Securities, may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities


exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

Unless the certificate of authentication hereon has been duly executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly executed under its corporate seal.

 

                 Dated: October 26, 2001

       

ALBERTA ENERGY COMPANY LTD.

       

By

 

/s/ John D. Watson

         

Name: John D. Watson

         

Title:   Vice-President, Finance and

         

            Chief Financial Officer

       

By

 

/s/ Larry L. Whitehead

         

Name: Larry L. Whitehead

         

Title:   Assistant Treasurer


TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Securities referred to in, and issued under, the within-mentioned Indenture.

 

THE BANK OF NEW YORK,

      as Trustee

By

 

/s/ Vanessa Mack

  Authorized Signatory


[Reverse of Security]

This Security is one of a duly authorized issue of securities of the Corporation designated as its 7.375% Notes due 2031 (herein called the “Securities”), initially issued in an aggregate principal amount of US$500,000,000, which may be issued under an indenture (herein called the “Indenture”) dated as of September 15, 2000 among the Corporation and The Bank of New York, as trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Corporation, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is a global Security representing US$100,000,000 aggregate principal amount of the Securities.

Payment of the principal of (and premium, if any, on) and interest on this Security will be made at the office or agency of the Corporation maintained or caused to be maintained for that purpose in New York, New York or at such other office or agency of the Corporation as may be maintained or caused to be maintained for such purpose, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of the principal (and premium, if any) and interest may be made at the option of the Corporation (i) by check mailed to the address of the Person entitled thereto as such address shall appear on the Security Register or (ii) by wire transfer to an account maintained by the payee located in the United States; provided, that principal paid in relation to any Security, redeemed at the option of the Corporation or upon Maturity, shall be paid to the holder of such Security only upon presentation and surrender of such Security to such office of agency referred to above.

The Corporation will pay to the Holders such Additional Amounts as may be payable under Section 1005 of the Indenture.

As provided for in the Indenture, not all of the Securities of this series need be issued at the same time. The Corporation may from time to time without notice to, or the consent of, the holders of the Securities, create and issue additional Securities under the Indenture, equal in rank to the Securities in all respects (or in all respects except for the payment of interest accruing prior to the issue date of the new Securities or except for the first payment of interest following the issue date of the new Securities) so that the new Securities may be consolidated and form a single series with the Securities and have the same terms as to status, redemption or otherwise as the Securities.

The Securities are subject to redemption upon not less than 30 nor more than 60 days’ notice, at any time, as a whole or in part, at the election of the Corporation at a redemption price equal to the greater of (1) 100% of the principal amount of the Securities or (2) as determined by the Quotation Agent, the sum of the present values of the remaining scheduled payments of principal and interest on the Securities to be redeemed (not including any portion of the payments of interest accrued as of the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30 day months) at the


Adjusted Treasury Rate plus 37.5 basis points, plus, in the case of (1) and (2), accrued interest thereon to the date of redemption, all as provided in the Indenture.

“Adjusted Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for the redemption date.

“Comparable Treasury Issue” means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the remaining term of the Securities that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt notes of comparable maturity to the remaining term of the Securities.

“Comparable Treasury Price” means, with respect to any redemption date, the average of the Reference Treasury Dealer Quotations for the redemption date.

“Quotation Agent” means Lehman Brothers Inc. or such other Reference Treasury Dealer appointed by the Corporation.

“Reference Treasury Dealers” means (1) Lehman Brothers Inc. and its successors, provided, however, that if it shall cease to be a primary U.S. Government securities dealer in New York City (a “Primary Treasury Dealer”), the Corporation shall substitute for it another Primary Treasury Dealer and (2) any other Primary Treasury Dealer selected by the Corporation.

“Reference Treasury Dealer Quotations” means, with respect to the Quotation Agent and any redemption date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted by the Quotation Agent at 5:00 p.m. on the third business day preceding the redemption date.

The Securities are subject to redemption as a whole but not in part, at the option of the Corporation, at any time, on not less than 30 nor more than 90 days’ notice, at 100% of the principal amount, together with accrued and unpaid interest to the date fixed for redemption, if the Corporation has become or would become obligated to pay on the next date on which interest is due, any Additional Amounts as a result of any change or amendment to the laws (or regulations or rulings promulgated thereunder) of Canada or any political subdivision or taxing authority thereof or therein or any change in or amendment to any official position or administration or assessing practices regarding the application or interpretation of such laws or regulations, which change or amendment is announced or becomes effective on or after October 22, 2001, all as provided in Section 1108 of the Indenture.

In the case of any redemption of Securities, interest installments whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Date referred to on the face hereof. Securities (or portions thereof) for whose redemption provision is made in accordance with the Indenture shall cease to bear interest from and after the Redemption Date.


In the event of redemption of this Security in part only, a new Security or Securities for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.

If an Event of Default shall occur and be continuing, the principal of all the Securities may be declared due and payable in the manner and with the effect provided in the Indenture.

The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Corporation on this Security and (b) certain restrictive covenants and the related Defaults and Events of Default, upon compliance by the Corporation with certain conditions set forth therein, which provisions apply to this Security.

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Corporation and the rights of the Holders under the Indenture at any time by the Corporation and the Trustee with the consent of the Holders of a majority in aggregate principal amount of all affected Securities at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities affected thereby, to waive compliance by the Corporation with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security.

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest on this Security at the times, place, and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable on the Security Register of the Corporation, upon surrender of this Security for registration of transfer at the office or agency of the Corporation maintained or caused to be maintained for such purpose in New York, New York duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Corporation and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

The Securities are issuable only in registered form without coupons in denominations of US$1,000 and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Securities are exchangeable for a like aggregate principal amount of Securities of a different authorized denomination, as requested by the Holder surrendering the same.


No service charge shall be made for any registration of transfer or exchange of Securities, but the Corporation may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Prior to the time of due presentment of this Security for registration of transfer, the Corporation, the Trustee and any agent of the Corporation or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Corporation, the Trustee nor any agent shall be affected by notice to the contrary.

Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day months. For the purposes of the Interest Act (Canada), the yearly rate of interest which is equivalent to the rate payable hereunder is the rate payable multiplied by the actual number of days in the year and divided by 360.

If at any time, (i) the Depositary notifies the Corporation that it is unwilling or unable or no longer qualifies to continue as Depositary or if at any time the Depositary shall no longer be registered or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation and a successor depositary is not appointed by the Corporation within 90 days after the Corporation receives such notice or becomes aware of such condition, as the case may be, or (ii) the Corporation determines that the Securities shall no longer be represented by a global Security or Securities, then in such event the Corporation will execute and the Trustee will authenticate and deliver Securities in definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of this Security in exchange for this Security. Such Securities in definitive registered form shall be registered in such names and issued in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.

The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York.

All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

Exhibit 4.8

Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Corporation (as defined below) or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.

Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this certificate may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a successor Depositary or a nominee of such successor Depositary.

ENCANA CORPORATION

6.50% Note due 2034

 

No. 1

  

US$500,000,000

   CUSIP: 292505 AD 6

EnCana Corporation, a corporation duly organized and existing under the laws of Canada (herein called the “Corporation”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of US$500,000,000 (FIVE HUNDRED MILLION UNITED STATES DOLLARS) on August 15, 2034, at the office or agency of the Corporation referred to below, and to pay interest thereon on February 15, 2005 and semi-annually thereafter, on February 15 and August 15 in each year, from August 4, 2004, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of 6.50% per annum, until the principal hereof is paid or duly provided for, and (to the extent lawful) to pay on demand interest on any overdue interest at the rate borne by the Securities from the date on which such overdue interest becomes payable to the date payment of such interest has been made or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be February 1 or August 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest which is payable but is not punctually paid or duly provided for on any Interest Payment Date shall forthwith cease to be payable to the Holder on the relevant Regular Record Date, and such defaulted interest, and, if applicable, interest on such defaulted interest (to the extent lawful) at the rate specified in the Securities, may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the


requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

 

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Unless the certificate of authentication hereon has been duly executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly executed.

 

                 Dated: August 4, 2004

     

ENCANA CORPORATION

     

By:

 

/s/ John D. Watson

       

Name: John D. Watson

       

Title: Executive Vice-President &

       

          Chief Financial Officer

     

By:

 

/s/ Kerry D. Dyte

       

Name: Kerry D. Dyte

       

Title:  Corporate Secretary

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Securities referred to in, and issued under, the within-mentioned Indenture.

 

                 Dated: August 4, 2004

     

THE BANK OF NEW YORK,

       

as Trustee

     

By

 

/s/ Vanessa Mack

        Authorized Signatory

 

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[Reverse of Security]

This Security is one of a duly authorized issue of securities of the Corporation designated as its 6.50% Notes due 2034 (herein called the “Securities”), which may be issued under an indenture (herein called the “Indenture”) dated as of October 2, 2003 among the Corporation and The Bank of New York, as trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Corporation, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is a global Security representing US$500,000,000 aggregate principal amount of the Securities of this series.

The Corporation may from time to time without notice to, or the consent of, the Holders, create and issue additional Securities under the Indenture.

Payment of the principal of (and premium, if any, on) and interest, if any, on this Security will be made at the office or agency of the Corporation maintained or caused to be maintained for that purpose, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of the principal (and premium, if any) and interest may be made at the option of the Corporation (i) by check mailed to the address of the Person entitled thereto as such address shall appear on the Security Register, payable to or upon the written order of the Person entitled thereto, or (ii) by wire transfer to an account located in the United States maintained by the payee of a Holder of $5,000,000 or more in aggregate principal amount of the Securities; provided further, that principal paid in relation to any Security, redeemed at the option of the Corporation or upon Maturity, shall be paid to the holder of such Security only upon presentation and surrender of such Security to such office or agency referred to above.

The Securities will not be entitled to the benefits of any sinking fund.

Holders of the Securities will not be entitled to the repayment of the Securities at their option pursuant to Article Thirteen of the Indenture.

The Corporation will pay to the Holders such Additional Amounts as may be payable under Section 1005 of the Indenture.

The Securities are subject to redemption upon not less than 30 nor more than 60 days’ notice, at any time, as a whole or in part, at the election of the Corporation at a redemption price equal to the greater of (1) 100% of the principal amount of the Securities to be redeemed or (2) the sum of the present values of the remaining scheduled payments of principal and interest on the Securities to be redeemed (exclusive of the payments of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30 day months) at the Adjusted Treasury Rate (as defined below) plus 25 basis points, plus, in the case of (1) and (2), accrued interest thereon to the date of redemption.

 

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“Adjusted Treasury Rate” means, with respect to any redemption date, the rate per year equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.

“Comparable Treasury Issue” means the United States Treasury security or securities selected by the Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Securities to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities.

“Comparable Treasury Price” means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (2) if fewer than four such Reference Treasury Dealer Quotations are obtained, the average or all such quotations.

“Independent Investment Banker” means one of the Reference Treasury Dealers, which is appointed by the Trustee after consultation with the Corporation.

“Reference Treasury Dealers” means each of ABN AMRO Incorporated and Lehman Brothers Inc. or their affiliates, plus three others which are primary U.S. Government securities dealers and their respective successors; provided, however, that if any of the foregoing or their affiliates shall cease to be a primary U.S. Government securities dealer in the United States (a “Primary Treasury Dealer”), the Corporation shall substitute for it another Primary Treasury Dealer.

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Reference Treasury Dealer, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted by such Reference Treasury Dealers at 3:30 p.m. New York Time on the third business day preceding such redemption date.

In the case of a partial redemption of Securities, selection of such Securities for redemption will be made pro rata, by lot or such other method as the Trustee in its sole discretion deems appropriate and just. If any Security is redeemed in part, the notice of redemption relating to such Security shall state the portion of the principal amount thereof to be redeemed; provided that no Security in an aggregate principal amount of US$1,000 or less shall be redeemed in part. A replacement Security in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holders thereof upon cancellation of the original Security.

The Securities are subject to redemption as a whole but not in part, at the option of the Corporation, as provided in Section 1108 of the Indenture.

In the case of any redemption of Securities, interest instalments whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record

 

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Date referred to on the face hereof. Securities (or portions thereof) for whose redemption provision is made in accordance with the Indenture shall cease to bear interest from and after the Redemption Date.

In the event of redemption of this Security in part only, a new Security or Securities for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.

If an Event of Default shall occur and be continuing, the principal of all the Securities, and all accrued and unpaid interest thereon, may be declared due and payable in the manner and with the effect provided in the Indenture.

The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Corporation on this Security and (b) certain restrictive covenants and the related Defaults and Events of Default, upon compliance by the Corporation with certain conditions set forth therein, which provisions apply to this Security.

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Corporation and the rights of the Holders under the Indenture at any time by the Corporation and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of all affected Securities at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities affected thereby, to waive compliance by the Corporation with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security.

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest, if any, on this Security at the times, place, and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable on the Security Register of the Corporation, upon surrender of this Security for registration of transfer at the office or agency of the Corporation maintained or caused to be maintained for such purpose duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Corporation and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

The Securities are issuable only in registered form without coupons in denominations of US$1,000 and integral multiples thereof. As provided in the Indenture and

 

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subject to certain limitations therein set forth, the Securities are exchangeable for a like aggregate principal amount of Securities of a different authorized denomination, as requested by the Holder surrendering the same.

No service charge shall be made for any registration of transfer or exchange of Securities, but the Corporation may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Except as otherwise provided in the Indenture, prior to the time of due presentment of this Security for registration of transfer, the Corporation, the Trustee and any agent of the Corporation or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Corporation, the Trustee nor any agent shall be affected by notice to the contrary.

Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day months. Solely for the purposes of the Interest Act (Canada), the yearly rate of interest to which interest calculated under a Security for a period of less than one year on the basis of a year of 360 days consisting of twelve 30 day periods is equivalent is such rate of interest multiplied by a fraction of which (i) the numerator is the product of (A) the actual number of days in the year commencing on the first day of such period, multiplied by (B) the sum of (y) the product of 30 multiplied by the number of complete months elapsed in such period and (z) the actual number of days elapsed in any incomplete month in such period; and (ii) the denominator is the product of (A) 360 multiplied by (B) the actual number of days in such period.

If at any time, (i) the Depositary notifies the Corporation that it is unwilling or unable or no longer qualifies to continue as Depositary for these Securities or if at any time the Depositary shall no longer be registered or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation and a successor depositary is not appointed by the Corporation within 90 days after the Corporation receives such notice or becomes aware of such condition, as the case may be, (ii) the Corporation determines that the Securities shall no longer be represented by a global Security or Securities, or (iii) there shall have occurred and be continuing an Event of Default under the Indenture with respect to the Securities and the Trustee has received a written request from a participant in the Depositary in accordance with the Depositary’s customary procedures to issue Securities in definitive form to such participant or other beneficial owner specified by such participant to the Trustee in writing, then in such event the Corporation will execute and the Trustee will authenticate and deliver Securities in definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of this Security in exchange for this Security. Such Securities in definitive registered form shall be registered in such names and issued in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.

The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York.

 

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All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

8


Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Corporation (as defined below) or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.

Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this certificate may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a successor Depositary or a nominee of such successor Depositary.

ENCANA CORPORATION

6.50% Note due 2034

 

No. 2

  

US$250,000,000

   CUSIP: 292505 AD 6

EnCana Corporation, a corporation duly organized and existing under the laws of Canada (herein called the “Corporation”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of US$250,000,000 (TWO HUNDRED AND FIFTY MILLION UNITED STATES DOLLARS) on August 15, 2034, at the office or agency of the Corporation referred to below, and to pay interest thereon on February 15, 2005 and semi-annually thereafter, on February 15 and August 15 in each year, from August 4, 2004, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of 6.50% per annum, until the principal hereof is paid or duly provided for, and (to the extent lawful) to pay on demand interest on any overdue interest at the rate borne by the Securities from the date on which such overdue interest becomes payable to the date payment of such interest has been made or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be February 1 or August 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest which is payable but is not punctually paid or duly provided for on any Interest Payment Date shall forthwith cease to be payable to the Holder on the relevant Regular Record Date, and such defaulted interest, and, if applicable, interest on such defaulted interest (to the extent lawful) at the rate specified in the Securities, may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not


inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

 

2


Unless the certificate of authentication hereon has been duly executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly executed.

 

                 Dated: August 4, 2004

     

ENCANA CORPORATION

     

By:

 

/s/ John D. Watson

       

Name: John D. Watson

       

Title:   Executive Vice-President &

       

            Chief Financial Officer

     

By:

 

/s/ Kerry D. Dyte

       

Name: Kerry D. Dyte

       

Title:   Corporate Secretary

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Securities referred to in, and issued under, the within-mentioned Indenture.

 

                 Dated: August 4, 2004

     

THE BANK OF NEW YORK,

       

as Trustee

     

By

 

/s/ Vanessa Mack

        Authorized Signatory

 

3


[Reverse of Security]

This Security is one of a duly authorized issue of securities of the Corporation designated as its 6.50% Notes due 2034 (herein called the “Securities”), which may be issued under an indenture (herein called the “Indenture”) dated as of October 2, 2003 among the Corporation and The Bank of New York, as trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Corporation, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is a global Security representing US$250,000,000 aggregate principal amount of the Securities of this series.

The Corporation may from time to time without notice to, or the consent of, the Holders, create and issue additional Securities under the Indenture.

Payment of the principal of (and premium, if any, on) and interest, if any, on this Security will be made at the office or agency of the Corporation maintained or caused to be maintained for that purpose, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of the principal (and premium, if any) and interest may be made at the option of the Corporation (i) by check mailed to the address of the Person entitled thereto as such address shall appear on the Security Register, payable to or upon the written order of the Person entitled thereto, or (ii) by wire transfer to an account located in the United States maintained by the payee of a Holder of $5,000,000 or more in aggregate principal amount of the Securities; provided further, that principal paid in relation to any Security, redeemed at the option of the Corporation or upon Maturity, shall be paid to the holder of such Security only upon presentation and surrender of such Security to such office or agency referred to above.

The Securities will not be entitled to the benefits of any sinking fund.

Holders of the Securities will not be entitled to the repayment of the Securities at their option pursuant to Article Thirteen of the Indenture.

The Corporation will pay to the Holders such Additional Amounts as may be payable under Section 1005 of the Indenture.

The Securities are subject to redemption upon not less than 30 nor more than 60 days’ notice, at any time, as a whole or in part, at the election of the Corporation at a redemption price equal to the greater of (1) 100% of the principal amount of the Securities to be redeemed or (2) the sum of the present values of the remaining scheduled payments of principal and interest on the Securities to be redeemed (exclusive of the payments of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30 day months) at the Adjusted Treasury Rate (as defined below) plus 25 basis points, plus, in the case of (1) and (2), accrued interest thereon to the date of redemption.

 

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“Adjusted Treasury Rate” means, with respect to any redemption date, the rate per year equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.

“Comparable Treasury Issue” means the United States Treasury security or securities selected by the Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Securities to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities.

“Comparable Treasury Price” means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (2) if fewer than four such Reference Treasury Dealer Quotations are obtained, the average or all such quotations.

“Independent Investment Banker” means one of the Reference Treasury Dealers, which is appointed by the Trustee after consultation with the Corporation.

“Reference Treasury Dealers” means each of ABN AMRO Incorporated and Lehman Brothers Inc. or their affiliates, plus three others which are primary U.S. Government securities dealers and their respective successors; provided, however, that if any of the foregoing or their affiliates shall cease to be a primary U.S. Government securities dealer in the United States (a “Primary Treasury Dealer”), the Corporation shall substitute for it another Primary Treasury Dealer.

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Reference Treasury Dealer, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted by such Reference Treasury Dealers at 3:30 p.m. New York Time on the third business day preceding such redemption date.

In the case of a partial redemption of Securities, selection of such Securities for redemption will be made pro rata, by lot or such other method as the Trustee in its sole discretion deems appropriate and just. If any Security is redeemed in part, the notice of redemption relating to such Security shall state the portion of the principal amount thereof to be redeemed; provided that no Security in an aggregate principal amount of US$1,000 or less shall be redeemed in part. A replacement Security in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holders thereof upon cancellation of the original Security.

The Securities are subject to redemption as a whole but not in part, at the option of the Corporation, as provided in Section 1108 of the Indenture.

In the case of any redemption of Securities, interest instalments whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record

 

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Date referred to on the face hereof. Securities (or portions thereof) for whose redemption provision is made in accordance with the Indenture shall cease to bear interest from and after the Redemption Date.

In the event of redemption of this Security in part only, a new Security or Securities for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.

If an Event of Default shall occur and be continuing, the principal of all the Securities, and all accrued and unpaid interest thereon, may be declared due and payable in the manner and with the effect provided in the Indenture.

The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Corporation on this Security and (b) certain restrictive covenants and the related Defaults and Events of Default, upon compliance by the Corporation with certain conditions set forth therein, which provisions apply to this Security.

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Corporation and the rights of the Holders under the Indenture at any time by the Corporation and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of all affected Securities at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities affected thereby, to waive compliance by the Corporation with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security.

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest, if any, on this Security at the times, place, and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable on the Security Register of the Corporation, upon surrender of this Security for registration of transfer at the office or agency of the Corporation maintained or caused to be maintained for such purpose duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Corporation and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

The Securities are issuable only in registered form without coupons in denominations of US$1,000 and integral multiples thereof. As provided in the Indenture and

 

6


subject to certain limitations therein set forth, the Securities are exchangeable for a like aggregate principal amount of Securities of a different authorized denomination, as requested by the Holder surrendering the same.

No service charge shall be made for any registration of transfer or exchange of Securities, but the Corporation may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Except as otherwise provided in the Indenture, prior to the time of due presentment of this Security for registration of transfer, the Corporation, the Trustee and any agent of the Corporation or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Corporation, the Trustee nor any agent shall be affected by notice to the contrary.

Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day months. Solely for the purposes of the Interest Act (Canada), the yearly rate of interest to which interest calculated under a Security for a period of less than one year on the basis of a year of 360 days consisting of twelve 30 day periods is equivalent is such rate of interest multiplied by a fraction of which (i) the numerator is the product of (A) the actual number of days in the year commencing on the first day of such period, multiplied by (B) the sum of (y) the product of 30 multiplied by the number of complete months elapsed in such period and (z) the actual number of days elapsed in any incomplete month in such period; and (ii) the denominator is the product of (A) 360 multiplied by (B) the actual number of days in such period.

If at any time, (i) the Depositary notifies the Corporation that it is unwilling or unable or no longer qualifies to continue as Depositary for these Securities or if at any time the Depositary shall no longer be registered or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation and a successor depositary is not appointed by the Corporation within 90 days after the Corporation receives such notice or becomes aware of such condition, as the case may be, (ii) the Corporation determines that the Securities shall no longer be represented by a global Security or Securities, or (iii) there shall have occurred and be continuing an Event of Default under the Indenture with respect to the Securities and the Trustee has received a written request from a participant in the Depositary in accordance with the Depositary’s customary procedures to issue Securities in definitive form to such participant or other beneficial owner specified by such participant to the Trustee in writing, then in such event the Corporation will execute and the Trustee will authenticate and deliver Securities in definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of this Security in exchange for this Security. Such Securities in definitive registered form shall be registered in such names and issued in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.

The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York.

 

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All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

8

Exhibit 4.9

Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Corporation (as defined below) or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.

Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this certificate may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a successor Depositary or a nominee of such successor Depositary.

ENCANA CORPORATION

6.625% Note due 2037

 

No. 1

   US$500,000,000      
   CUSIP: 292505AE4

EnCana Corporation, a corporation duly organized and existing under the laws of Canada (herein called the “Corporation”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of US$500,000,000 (FIVE HUNDRED MILLION UNITED STATES DOLLARS) on August 15, 2037, at the office or agency of the Corporation referred to below, and to pay interest thereon on February 15, 2008 and semi-annually thereafter, on February 15 and August 15 in each year, from August 13, 2007, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of 6.625% per annum, until the principal hereof is paid or duly provided for, and (to the extent lawful) to pay on demand interest on any overdue interest at the rate borne by the Securities from the date on which such overdue interest becomes payable to the date payment of such interest has been made or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be February 1 or August 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest which is payable but is not punctually paid or duly provided for on any Interest Payment Date shall forthwith cease to be payable to the Holder on the relevant Regular Record Date, and such defaulted interest, and, if applicable, interest on such defaulted interest (to the extent lawful) at the rate specified in the Securities, may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the


requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth herein.

 

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Unless the certificate of authentication hereon has been duly executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly executed.

 

Dated: August 13, 2007

   

ENCANA CORPORATION

   

By:

 

/s/ Brian C. Ferguson

     

Name:

 

Brian C. Ferguson

     

Title:

 

Executive Vice President & Chief

       

Financial Officer

   

By:

 

/s/ Thomas G. Hinton

     

Name:

 

Thomas G. Hinton

     

Title:

 

Treasurer

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Securities referred to in, and issued under, the within-mentioned Indenture.

 

Dated: August 13, 2007

   

THE BANK OF NEW YORK,

      as Trustee
    By  

/s/ Lesley Daley

      Authorized Signatory

 

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[Reverse of Security]

This Security is one of a duly authorized issue of securities of the Corporation designated as its 6.625% Notes due 2037 (herein called the “Securities”), which may be issued under an indenture (herein called the “Indenture”) dated as of August 13, 2007 among the Corporation and The Bank of New York, as trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Corporation, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is a global Security representing US$500,000,000 aggregate principal amount of the Securities of this series.

The Corporation may from time to time without notice to, or the consent of, the Holders, create and issue additional Securities under the Indenture.

Payment of the principal of (and premium, if any, on) and interest, if any, on this Security will be made at the office or agency of the Corporation maintained or caused to be maintained for that purpose, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of the principal (and premium, if any) and interest may be made at the option of the Corporation (i) by check mailed to the address of the Person entitled thereto as such address shall appear on the Security Register, payable to or upon the written order of the Person entitled thereto, or (ii) by wire transfer to an account located in the United States maintained by the payee of a Holder of $5,000,000 or more in aggregate principal amount of the Securities; provided further, that principal paid in relation to any Security, redeemed at the option of the Corporation or upon Maturity, shall be paid to the holder of such Security only upon presentation and surrender of such Security to such office or agency referred to above.

The Securities will not be entitled to the benefits of any sinking fund.

Holders of the Securities will not be entitled to the repayment of the Securities at their option pursuant to Section 1301 of the Indenture.

The Corporation will pay to the Holders such Additional Amounts as may be payable under Section 1005 of the Indenture.

The Securities are subject to redemption upon not less than 30 nor more than 60 days’ notice, at any time, as a whole or in part, at the election of the Corporation at a redemption price equal to the greater of (1) 100% of the principal amount of the Securities to be redeemed or (2) the sum of the present values of the remaining scheduled payments of principal and interest on the Securities to be redeemed (exclusive of the payments of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30 day months) at the Adjusted Treasury Rate (as defined below) plus 30 basis points, plus, in the case of (1) and (2), accrued interest thereon to the date of redemption.

 

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“Adjusted Treasury Rate” means, with respect to any redemption date, the rate per year equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.

“Comparable Treasury Issue” means the United States Treasury security or securities selected by the Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Securities to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities.

“Comparable Treasury Price” means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (2) if fewer than four such Reference Treasury Dealer Quotations are obtained, the average or all such quotations.

“Independent Investment Banker” means one of the Reference Treasury Dealers, which is appointed by the Trustee after consultation with the Corporation.

“Reference Treasury Dealers” means each of Banc of America Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated or their affiliates, plus three others which are primary U.S. Government securities dealers and their respective successors; provided, however , that if any of the foregoing or their affiliates shall cease to be a primary U.S. Government securities dealer in the United States (a “Primary Treasury Dealer”), the Corporation shall substitute for it another Primary Treasury Dealer.

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Reference Treasury Dealer, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted by such Reference Treasury Dealers at 3:30 p.m. New York Time on the third business day preceding such redemption date.

In the case of a partial redemption of Securities, selection of such Securities for redemption will be made pro rata , by lot or such other method as the Trustee in its sole discretion deems appropriate and just. If any Security is redeemed in part, the notice of redemption relating to such Security shall state the portion of the principal amount thereof to be redeemed; provided that no Security in an aggregate principal amount of US$2,000 or less shall be redeemed in part. A replacement Security in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holders thereof upon cancellation of the original Security.

The Securities are subject to redemption as a whole but not in part, at the option of the Corporation, as provided in Section 1108 of the Indenture.

In the case of any redemption of Securities, interest instalments whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record

 

5


Date referred to on the face hereof. Securities (or portions thereof) for whose redemption provision is made in accordance with the Indenture shall cease to bear interest from and after the Redemption Date.

In the event of redemption of this Security in part only, a new Security or Securities for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.

If an Event of Default shall occur and be continuing, the principal of all the Securities, and all accrued and unpaid interest thereon, may be declared due and payable in the manner and with the effect provided in the Indenture.

The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Corporation on this Security and (b) certain restrictive covenants and the related Defaults and Events of Default, upon compliance by the Corporation with certain conditions set forth therein, which provisions apply to this Security.

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Corporation and the rights of the Holders under the Indenture at any time by the Corporation and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of all affected Securities at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities affected thereby, to waive compliance by the Corporation with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security.

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest, if any, on this Security at the times, place, and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable on the Security Register of the Corporation, upon surrender of this Security for registration of transfer at the office or agency of the Corporation maintained or caused to be maintained for such purpose duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Corporation and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

The Securities are issuable only in registered form without coupons in minimum denominations of US$2,000 and integral multiples of $1,000 in excess thereof. As provided in

 

6


the Indenture and subject to certain limitations therein set forth, the Securities are exchangeable for a like aggregate principal amount of Securities of a different authorized denomination, as requested by the Holder surrendering the same.

No service charge shall be made for any registration of transfer or exchange of Securities, but the Corporation may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Except as otherwise provided in the Indenture, prior to the time of due presentment of this Security for registration of transfer, the Corporation, the Trustee and any agent of the Corporation or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Corporation, the Trustee nor any agent shall be affected by notice to the contrary.

Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day months. Solely for the purposes of the Interest Act (Canada), the yearly rate of interest to which interest calculated under a Security for a period of less than one year on the basis of a year of 360 days consisting of twelve 30 day periods is equivalent is such rate of interest multiplied by a fraction of which (i) the numerator is the product of (A) the actual number of days in the year commencing on the first day of such period, multiplied by (B) the sum of (y) the product of 30 multiplied by the number of complete months elapsed in such period and (z) the actual number of days elapsed in any incomplete month in such period; and (ii) the denominator is the product of (A) 360 multiplied by (B) the actual number of days in such period.

If at any time, (i) the Depositary notifies the Corporation that it is unwilling or unable or no longer qualifies to continue as Depositary for these Securities or if at any time the Depositary shall no longer be registered or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation and a successor depositary is not appointed by the Corporation within 90 days after the Corporation receives such notice or becomes aware of such condition, as the case may be, (ii) the Corporation determines that the Securities shall no longer be represented by a global Security or Securities, or (iii) there shall have occurred and be continuing an Event of Default under the Indenture with respect to the Securities and the Trustee has received a written request from a participant in the Depositary in accordance with the Depositary’s customary procedures to issue Securities in definitive form to such participant or other beneficial owner specified by such participant to the Trustee in writing, then in such event the Corporation will execute and the Trustee will authenticate and deliver Securities in definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of this Security in exchange for this Security. Such Securities in definitive registered form shall be registered in such names and issued in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.

The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York.

 

7


All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

8

Exhibit 4.10

Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Corporation (as defined below) or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede   & Co., has an interest herein.

Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this certificate may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a successor Depositary or a nominee of such successor Depositary.

ENCANA CORPORATION

6.50% Note due 2038

 

No. B-1

  
   US$500,000,000       
   CUSIP: 292505 AG9

EnCana Corporation, a corporation duly organized and existing under the laws of Canada (herein called the “Corporation”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of US$500,000,000 (FIVE HUNDRED MILLION UNITED STATES DOLLARS) on February 1, 2038, at the office or agency of the Corporation referred to below, and to pay interest thereon on August 1, 2008 and semi-annually thereafter, on February 1 and August 1 in each year, from December 4, 2007, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of 6.50% per annum, until the principal hereof is paid or duly provided for, and (to the extent lawful) to pay on demand interest on any overdue interest at the rate borne by the Securities from the date on which such overdue interest becomes payable to the date payment of such interest has been made or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be January 15 or July 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest which is payable but is not punctually paid or duly provided for on any Interest Payment Date shall forthwith cease to be payable to the Holder on the relevant Regular Record Date, and such defaulted interest, and, if applicable, interest on such defaulted interest (to the extent lawful) at the rate specified in the Securities, may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities not less than 10 days prior to such Special


Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth herein.

 

2


Unless the certificate of authentication hereon has been duly executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly executed.

 

 Dated: December 4, 2007

   

ENCANA CORPORATION

   

By:

 

/s/ Brian C. Ferguson

     

Name:

 

Brian C. Ferguson

     

Title:

 

Executive Vice-President &

       

Chief Financial Officer

   

By:

 

/s/ Thomas G. Hinton

     

Name:

 

Thomas G. Hinton

     

Title:

 

Treasurer

 

 

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

 

This is one of the Securities referred to in, and issued under, the within-mentioned Indenture.

 

Dated: December 4, 2007

    THE BANK OF NEW YORK,
      as Trustee
    By   /s/ Lesley Daley
      Authorized Signatory

 

3


[Reverse of Security]

This Security is one of a duly authorized issue of securities of the Corporation designated as its 6.50% Notes due 2038 (herein called the “Securities”), which may be issued under an indenture (herein called the “Indenture”) dated as of August 13, 2007 among the Corporation and The Bank of New York, as trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Corporation, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is a global Security representing US$500,000,000 aggregate principal amount of the Securities of this series.

The Corporation may from time to time without notice to, or the consent of, the Holders, create and issue additional Securities under the Indenture.

Payment of the principal of (and premium, if any, on) and interest, if any, on this Security will be made at the office or agency of the Corporation maintained or caused to be maintained for that purpose, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of the principal (and premium, if any) and interest may be made at the option of the Corporation (i) by check mailed to the address of the Person entitled thereto as such address shall appear on the Security Register, payable to or upon the written order of the Person entitled thereto, or (ii) by wire transfer to an account located in the United States maintained by the payee of a Holder of $5,000,000 or more in aggregate principal amount of the Securities; provided further, that principal paid in relation to any Security, redeemed at the option of the Corporation or upon Maturity, shall be paid to the holder of such Security only upon presentation and surrender of such Security to such office or agency referred to above.

The Securities will not be entitled to the benefits of any sinking fund.

Holders of the Securities will not be entitled to the repayment of the Securities at their option pursuant to Article Thirteen of the Indenture.

The Corporation will pay to the Holders such Additional Amounts as may be payable under Section 1005 of the Indenture.

The Securities are subject to redemption upon not less than 30 nor more than 60 days’ notice, at any time, as a whole or in part, at the election of the Corporation at a redemption price equal to the greater of (1) 100% of the principal amount of the Securities to be redeemed or (2) the sum of the present values of the remaining scheduled payments of principal and interest on the Securities to be redeemed (exclusive of the payments of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30 day months) at the Adjusted Treasury Rate (as defined below) plus 35 basis points, plus, in the case of (1) and (2), accrued interest thereon to the date of redemption.

 

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“Adjusted Treasury Rate” means, with respect to any redemption date, the rate per year equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.

“Comparable Treasury Issue” means the United States Treasury security or securities selected by the Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Securities to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities.

“Comparable Treasury Price” means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (2) if fewer than four such Reference Treasury Dealer Quotations are obtained, the average or all such quotations.

“Independent Investment Banker” means one of the Reference Treasury Dealers, which is appointed by the Trustee after consultation with the Corporation.

“Reference Treasury Dealers” means each of Citigroup Global Markets Inc. and UBS Securities LLC or their affiliates, plus three others which are primary U.S. Government securities dealers and their respective successors; provided, however, that if any of the foregoing or their affiliates shall cease to be a primary U.S. Government securities dealer in the United States (a “Primary Treasury Dealer”), the Corporation shall substitute for it another Primary Treasury Dealer.

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Reference Treasury Dealer, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted by such Reference Treasury Dealers at 3:30 p.m. New York Time on the third business day preceding such redemption date.

In the case of a partial redemption of Securities, selection of such Securities for redemption will be made pro rata, by lot or such other method as the Trustee in its sole discretion deems appropriate and just. If any Security is redeemed in part, the notice of redemption relating to such Security shall state the portion of the principal amount thereof to be redeemed; provided that no Security in an aggregate principal amount of US$1,000 or less shall be redeemed in part. A replacement Security in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holders thereof upon cancellation of the original Security.

The Securities are subject to redemption as a whole but not in part, at the option of the Corporation, as provided in Section 1108 of the Indenture.

In the case of any redemption of Securities, interest instalments whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record

 

5


Date referred to on the face hereof. Securities (or portions thereof) for whose redemption provision is made in accordance with the Indenture shall cease to bear interest from and after the Redemption Date.

In the event of redemption of this Security in part only, a new Security or Securities for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.

If an Event of Default shall occur and be continuing, the principal of all the Securities, and all accrued and unpaid interest thereon, may be declared due and payable in the manner and with the effect provided in the Indenture.

The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Corporation on this Security and (b) certain restrictive covenants and the related Defaults and Events of Default, upon compliance by the Corporation with certain conditions set forth therein, which provisions apply to this Security.

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Corporation and the rights of the Holders under the Indenture at any time by the Corporation and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of all affected Securities at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities affected thereby, to waive compliance by the Corporation with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security.

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest, if any, on this Security at the times, place, and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable on the Security Register of the Corporation, upon surrender of this Security for registration of transfer at the office or agency of the Corporation maintained or caused to be maintained for such purpose duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Corporation and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

The Securities are issuable only in registered form without coupons in minimum denominations of US$2,000 and integral multiples of $1,000 in excess thereof. As provided in

 

6


the Indenture and subject to certain limitations therein set forth, the Securities are exchangeable for a like aggregate principal amount of Securities of a different authorized denomination, as requested by the Holder surrendering the same.

No service charge shall be made for any registration of transfer or exchange of Securities, but the Corporation may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Except as otherwise provided in the Indenture, prior to the time of due presentment of this Security for registration of transfer, the Corporation, the Trustee and any agent of the Corporation or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Corporation, the Trustee nor any agent shall be affected by notice to the contrary.

Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day months. Solely for the purposes of the Interest Act (Canada), the yearly rate of interest to which interest calculated under a Security for a period of less than one year on the basis of a year of 360 days consisting of twelve 30 day periods is equivalent is such rate of interest multiplied by a fraction of which (i) the numerator is the product of (A) the actual number of days in the year commencing on the first day of such period, multiplied by (B) the sum of (y) the product of 30 multiplied by the number of complete months elapsed in such period and (z) the actual number of days elapsed in any incomplete month in such period; and (ii) the denominator is the product of (A) 360 multiplied by (B) the actual number of days in such period.

If at any time, (i) the Depositary notifies the Corporation that it is unwilling or unable or no longer qualifies to continue as Depositary for these Securities or if at any time the Depositary shall no longer be registered or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation and a successor depositary is not appointed by the Corporation within 90 days after the Corporation receives such notice or becomes aware of such condition, as the case may be, (ii) the Corporation determines that the Securities shall no longer be represented by a global Security or Securities, or (iii) there shall have occurred and be continuing an Event of Default under the Indenture with respect to the Securities and the Trustee has received a written request from a participant in the Depositary in accordance with the Depositary’s customary procedures to issue Securities in definitive form to such participant or other beneficial owner specified by such participant to the Trustee in writing, then in such event the Corporation will execute and the Trustee will authenticate and deliver Securities in definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of this Security in exchange for this Security. Such Securities in definitive registered form shall be registered in such names and issued in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.

The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York.

 

7


All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

8


Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Corporation (as defined below) or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as is requested by an authorized representative of DTC (and any payment is made to Cede   & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede   & Co., has an interest herein.

Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this certificate may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee successor Depositary or a nominee of such successor Depositary.

ENCANA CORPORATION

6.50% Note due 2038

 

No. B-2

  
   US$300,000,000       
   CUSIP: 292505 AG9

EnCana Corporation, a corporation duly organized and existing under the laws of Canada (herein called the “Corporation”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of US$300,000,000 (THREE HUNDRED MILLION UNITED STATES DOLLARS) on February 1, 2038, at the office or agency of the Corporation referred to below, and to pay interest thereon on August 1, 2008 and semi-annually thereafter, on February 1 and August 1 in each year, from December 4, 2007, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of 6.50% per annum, until the principal hereof is paid or duly provided for, and (to the extent lawful) to pay on demand interest on any overdue interest at the rate borne by the Securities from the date on which such overdue interest becomes payable to the date payment of such interest has been made or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be January 15 or July 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest which is payable but is not punctually paid or duly provided for on any Interest Payment Date shall forthwith cease to be payable to the Holder on the relevant Regular Record Date, and such defaulted interest, and, if applicable, interest on such defaulted interest (to the extent lawful) at the rate specified in the Securities, may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities not less than 10 days prior to such Special


Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth herein.

 

2


Unless the certificate of authentication hereon has been duly executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly executed.

 

  Dated: December 4, 2007

   

ENCANA CORPORATION

   

By:

 

/s/ Brian C. Ferguson

     

Name:

 

Brian C. Ferguson

     

Title:

 

Executive Vice-President &

       

Chief Financial Officer

   

By:

 

/s/ Thomas G. Hinton

     

Name:

 

Thomas G. Hinton

     

Title:

 

Treasurer

 

 

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

 

This is one of the Securities referred to in, and issued under, the within-mentioned Indenture.

 

Dated: December 4, 2007

    THE BANK OF NEW YORK,
      as Trustee
    By  

/s/ Lesley Daley

      Authorized Signatory

 

3


[Reverse of Security]

This Security is one of a duly authorized issue of securities of the Corporation designated as its 6.50% Notes due 2038 (herein called the “Securities”), which may be issued under an indenture (herein called the “Indenture”) dated as of August 13, 2007 among the Corporation and The Bank of New York, as trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Corporation, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is a global Security representing US$300,000,000 aggregate principal amount of the Securities of this series.

The Corporation may from time to time without notice to, or the consent of, the Holders, create and issue additional Securities under the Indenture.

Payment of the principal of (and premium, if any, on) and interest, if any, on this Security will be made at the office or agency of the Corporation maintained or caused to be maintained for that purpose, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of the principal (and premium, if any) and interest may be made at the option of the Corporation (i) by check mailed to the address of the Person entitled thereto as such address shall appear on the Security Register, payable to or upon the written order of the Person entitled thereto, or (ii) by wire transfer to an account located in the United States maintained by the payee of a Holder of $5,000,000 or more in aggregate principal amount of the Securities; provided further, that principal paid in relation to any Security, redeemed at the option of the Corporation or upon Maturity, shall be paid to the holder of such Security only upon presentation and surrender of such Security to such office or agency referred to above.

The Securities will not be entitled to the benefits of any sinking fund.

Holders of the Securities will not be entitled to the repayment of the Securities at their option pursuant to Article Thirteen of the Indenture.

The Corporation will pay to the Holders such Additional Amounts as may be payable under Section 1005 of the Indenture.

The Securities are subject to redemption upon not less than 30 nor more than 60 days’ notice, at any time, as a whole or in part, at the election of the Corporation at a redemption price equal to the greater of (1) 100% of the principal amount of the Securities to be redeemed or (2) the sum of the present values of the remaining scheduled payments of principal and interest on the Securities to be redeemed (exclusive of the payments of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30 day months) at the Adjusted Treasury Rate (as defined below) plus 35 basis points, plus, in the case of (1) and (2), accrued interest thereon to the date of redemption.

 

4


“Adjusted Treasury Rate” means, with respect to any redemption date, the rate per year equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.

“Comparable Treasury Issue” means the United States Treasury security or securities selected by the Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Securities to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities.

“Comparable Treasury Price” means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (2) if fewer than four such Reference Treasury Dealer Quotations are obtained, the average or all such quotations.

“Independent Investment Banker” means one of the Reference Treasury Dealers, which is appointed by the Trustee after consultation with the Corporation.

“Reference Treasury Dealers” means each of Citigroup Global Markets Inc. and UBS Securities LLC or their affiliates, plus three others which are primary U.S. Government securities dealers and their respective successors; provided, however, that if any of the foregoing or their affiliates shall cease to be a primary U.S. Government securities dealer in the United States (a “Primary Treasury Dealer”), the Corporation shall substitute for it another Primary Treasury Dealer.

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Reference Treasury Dealer, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted by such Reference Treasury Dealers at 3:30 p.m. New York Time on the third business day preceding such redemption date.

In the case of a partial redemption of Securities, selection of such Securities for redemption will be made pro rata, by lot or such other method as the Trustee in its sole discretion deems appropriate and just. If any Security is redeemed in part, the notice of redemption relating to such Security shall state the portion of the principal amount thereof to be redeemed; provided that no Security in an aggregate principal amount of US$1,000 or less shall be redeemed in part. A replacement Security in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holders thereof upon cancellation of the original Security.

The Securities are subject to redemption as a whole but not in part, at the option of the Corporation, as provided in Section 1108 of the Indenture.

In the case of any redemption of Securities, interest instalments whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record

 

5


Date referred to on the face hereof. Securities (or portions thereof) for whose redemption provision is made in accordance with the Indenture shall cease to bear interest from and after the Redemption Date.

In the event of redemption of this Security in part only, a new Security or Securities for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.

If an Event of Default shall occur and be continuing, the principal of all the Securities, and all accrued and unpaid interest thereon, may be declared due and payable in the manner and with the effect provided in the Indenture.

The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Corporation on this Security and (b) certain restrictive covenants and the related Defaults and Events of Default, upon compliance by the Corporation with certain conditions set forth therein, which provisions apply to this Security.

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Corporation and the rights of the Holders under the Indenture at any time by the Corporation and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of all affected Securities at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities affected thereby, to waive compliance by the Corporation with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security.

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest, if any, on this Security at the times, place, and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable on the Security Register of the Corporation, upon surrender of this Security for registration of transfer at the office or agency of the Corporation maintained or caused to be maintained for such purpose duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Corporation and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

The Securities are issuable only in registered form without coupons in minimum denominations of US$2,000 and integral multiples of $1,000 in excess thereof. As provided in

 

6


the Indenture and subject to certain limitations therein set forth, the Securities are exchangeable for a like aggregate principal amount of Securities of a different authorized denomination, as requested by the Holder surrendering the same.

No service charge shall be made for any registration of transfer or exchange of Securities, but the Corporation may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Except as otherwise provided in the Indenture, prior to the time of due presentment of this Security for registration of transfer, the Corporation, the Trustee and any agent of the Corporation or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Corporation, the Trustee nor any agent shall be affected by notice to the contrary.

Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day months. Solely for the purposes of the Interest Act (Canada), the yearly rate of interest to which interest calculated under a Security for a period of less than one year on the basis of a year of 360 days consisting of twelve 30 day periods is equivalent is such rate of interest multiplied by a fraction of which (i) the numerator is the product of (A) the actual number of days in the year commencing on the first day of such period, multiplied by (B) the sum of (y) the product of 30 multiplied by the number of complete months elapsed in such period and (z) the actual number of days elapsed in any incomplete month in such period; and (ii) the denominator is the product of (A) 360 multiplied by (B) the actual number of days in such period.

If at any time, (i) the Depositary notifies the Corporation that it is unwilling or unable or no longer qualifies to continue as Depositary for these Securities or if at any time the Depositary shall no longer be registered or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation and a successor depositary is not appointed by the Corporation within 90 days after the Corporation receives such notice or becomes aware of such condition, as the case may be, (ii) the Corporation determines that the Securities shall no longer be represented by a global Security or Securities, or (iii) there shall have occurred and be continuing an Event of Default under the Indenture with respect to the Securities and the Trustee has received a written request from a participant in the Depositary in accordance with the Depositary’s customary procedures to issue Securities in definitive form to such participant or other beneficial owner specified by such participant to the Trustee in writing, then in such event the Corporation will execute and the Trustee will authenticate and deliver Securities in definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of this Security in exchange for this Security. Such Securities in definitive registered form shall be registered in such names and issued in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.

The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York.

 

7


All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

8

Exhibit 4.11

Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Corporation (as defined below) or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.

Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this certificate may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a successor Depositary or a nominee of such successor Depositary.

ENCANA CORPORATION

5.15% Note due 2041

 

No. A-1

  
   US$400,000,000       
   CUSIP: 292505AK0

Encana Corporation, a corporation duly organized and existing under the laws of Canada (herein called the “Corporation”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of US$400,000,000 (FOUR HUNDRED MILLION DOLLARS) on November 15, 2041, at the office or agency of the Corporation referred to below, and to pay interest thereon on May 15, 2012 and semi-annually thereafter, on May 15 and November 15 in each year, from November 14, 2011, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of 5.15% per annum, until the principal hereof is paid or duly provided for, and (to the extent lawful) to pay on demand interest on any overdue interest at the rate borne by the Securities from the date on which such overdue interest becomes payable to the date payment of such interest has been made or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be May 1 or November 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest which is payable but is not punctually paid or duly provided for on any Interest Payment Date shall forthwith cease to be payable to the Holder on the relevant Regular Record Date, and such defaulted interest, and, if applicable, interest on such defaulted interest (to the extent lawful) at the rate specified in the Securities, may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities not less than 10 days prior to such Special


Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth herein.

 

2


Unless the certificate of authentication hereon has been duly executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly executed.

 

  Dated: November 14, 2011

   

ENCANA CORPORATION

   

By:

 

/s/ Sherri A. Brillon

     

Name:

 

Sherri A. Brillon

     

Title:

 

Executive Vice-President &

       

Chief Financial Officer

   

By:

 

/s/ Gerald T. Ince

     

Name:

 

Gerald T. Ince

     

Title:

 

Treasurer

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Securities of the series designated and referred to in, and issued under, the within-mentioned Indenture.

 

 Dated: November 14, 2011

    THE BANK OF NEW YORK MELLON,
      as Trustee
    By  

/s/ Erika Walker

      Authorized Signatory

 

3


[Reverse of Security]

This Security is one of a duly authorized issue of securities of the Corporation designated as its 5.15% Notes due 2041 (herein called the “Securities”), which may be issued under an indenture (herein called the “Indenture”) dated as of November 14, 2011 among the Corporation and The Bank of New York Mellon, as trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Corporation, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is a global Security representing US$400,000,000 aggregate principal amount of the Securities of this series.

The Corporation may from time to time without notice to, or the consent of, the Holders, create and issue additional Securities under the Indenture.

Payment of the principal of (and premium, if any, on) and interest, if any, on this Security will be made at the office or agency of the Corporation maintained or caused to be maintained for that purpose, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, that principal paid in relation to any Security, redeemed at the option of the Corporation or upon Maturity, shall be paid to the holder of such Security only upon presentation and surrender of such Security to such office or agency referred to above.

The Securities will not be entitled to the benefits of any sinking fund.

Holders of the Securities will not be entitled to the repayment of the Securities at their option pursuant to Article Thirteen of the Indenture.

The Corporation will pay to the Holders such Additional Amounts as may be payable under Section 1005 of the Indenture.

Prior to May 15, 2041, the Securities will be redeemable, upon not less than 30 nor more than 60 days’ notice, at any time, as a whole or in part, at the option of the Corporation at a redemption price equal to the greater of (1) 100% of the principal amount of the Securities to be redeemed, and (2) the sum of the present values of the remaining scheduled payments of principal and interest on the Securities to be redeemed (exclusive of the payments of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate (as defined below) plus 35 basis points, plus, in the case of (1) and (2), accrued interest thereon to the date of redemption.

On or after May 15, 2041, the Securities will be redeemable, upon not less than 30 nor more than 60 days’ notice, at any time, as a whole or in part, at the option of the Corporation at a redemption price equal to 100% of the principal amount of the Securities to be redeemed, plus accrued interest thereon to the date of redemption.

 

4


“Adjusted Treasury Rate” means, with respect to any redemption date, the rate per year equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.

“Comparable Treasury Issue” means the United States Treasury security or securities selected by the Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Securities to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities.

“Comparable Treasury Price” means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (2) if fewer than four such Reference Treasury Dealer Quotations are obtained, the average or all such quotations.

“Independent Investment Banker” means one of the Reference Treasury Dealers, which is appointed by the Trustee after consultation with the Corporation.

“Reference Treasury Dealers” means each of Barclays Capital Inc., BNP Paribas Securities Corp. and J.P. Morgan Securities LLC or their affiliates, plus two others which are primary U.S. Government securities dealers and their respective successors; provided, however, that if any of the foregoing or their affiliates shall cease to be a primary U.S. Government securities dealer in the United States (a “Primary Treasury Dealer”), the Corporation shall substitute for it another Primary Treasury Dealer.

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Reference Treasury Dealer, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted by such Reference Treasury Dealers at 3:30 p.m. New York Time on the third business day preceding such redemption date.

In the case of a partial redemption of Securities, selection of such Securities for redemption will be made pro rata, by lot or such other method as the Trustee in its sole discretion deems appropriate and just. If any Security is redeemed in part, the notice of redemption relating to such Security shall state the portion of the principal amount thereof to be redeemed; provided that no Security in an aggregate principal amount of US$2,000 or less shall be redeemed in part. A replacement Security in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holders thereof upon cancellation of the original Security.

The Securities are subject to redemption as a whole but not in part, at the option of the Corporation, as provided in Section 1108 of the Indenture.

 

5


In the case of any redemption of Securities, interest instalments whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Date referred to on the face hereof. Securities (or portions thereof) for whose redemption provision is made in accordance with the Indenture shall cease to bear interest from and after the Redemption Date.

In the event of redemption of this Security in part only, a new Security or Securities for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.

If an Event of Default shall occur and be continuing, the principal of all the Securities, and all accrued and unpaid interest thereon, may be declared due and payable in the manner and with the effect provided in the Indenture.

The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Corporation on this Security and (b) certain restrictive covenants and the related Defaults and Events of Default, upon compliance by the Corporation with certain conditions set forth therein, which provisions apply to this Security.

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Corporation and the rights of the Holders under the Indenture at any time by the Corporation and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of all affected Securities at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities affected thereby, to waive compliance by the Corporation with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security.

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest, if any, on this Security at the times, place, and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable on the Security Register of the Corporation, upon surrender of this Security for registration of transfer at the office or agency of the Corporation maintained or caused to be maintained for such purpose duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Corporation and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

 

6


The Securities are issuable only in registered form in minimum denominations of US$2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Securities are exchangeable for a like aggregate principal amount of Securities of a different authorized denomination, as requested by the Holder surrendering the same.

No service charge shall be made for any registration of transfer or exchange of Securities, but the Corporation and the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Except as otherwise provided in the Indenture, prior to the time of due presentment of this Security for registration of transfer, the Corporation, the Trustee and any agent of the Corporation or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and none of the Corporation, the Trustee or any agent shall be affected by notice to the contrary.

Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day months. Solely for the purposes of disclosure under the Interest Act (Canada) and without affecting the calculation of the amount of interest owing on the Securities, the yearly rate of interest to which interest calculated under a Security for a period of less than one year on the basis of a year of 360 days consisting of twelve 30 day months (the “calculation period”) is equivalent will be such rate of interest multiplied by a fraction of which (i) the numerator is the product of (A) the actual number of days in the year commencing on the first day of such calculation period, multiplied by (B) the sum of (y) the product of 30 multiplied by the number of complete months elapsed in such calculation period and (z) the actual number of days elapsed in any incomplete month in such calculation period; and (ii) the denominator is the product of (A) 360 multiplied by (B) the actual number of days in such calculation period.

If at any time, (i) the Depositary notifies the Corporation that it is unwilling or unable or no longer qualifies to continue as Depositary for these Securities or if at any time the Depositary shall no longer be registered or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation and a successor depositary is not appointed by the Corporation within 90 days after the Corporation receives such notice or becomes aware of such condition, as the case may be, (ii) the Corporation determines that the Securities shall no longer be represented by a global Security or Securities, or (iii) there shall have occurred and be continuing an Event of Default under the Indenture with respect to the Securities and the Trustee has received a written request from the Depositary or a participant in the Depositary in accordance with the Depositary’s customary procedures to issue Securities in definitive form to such participant or other beneficial owner specified by such participant to the Trustee in writing, then in such event the Corporation will execute and the Trustee will authenticate and deliver Securities in definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of this Security in exchange for this Security. Such Securities in definitive registered form shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.

 

7


The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York.

All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

8

Exhibit 4.12

 

 

 

ENCANA CORPORATION,

as Issuer

and

THE BANK OF NEW YORK,

as Trustee

 

 

INDENTURE

Dated as of August 13, 2007

Providing for the issue of

Debt Securities

in unlimited principal amount

 

 

 

 

 


ENCANA CORPORATION

Reconciliation and tie between Trust Indenture Act

of 1939 and Indenture, dated as of [                ], 200    

 

Trust Indenture

Act Section

   Indenture Section

§ 310(a)(1)

   608(a)

       (a)(2)

   608(a)

       (b)

   609,610

§ 312(c)

   703

§ 314(a)

   703

       (a)(4)

   1004

       (c)(1)

   102

       (c)(2)

   102

       (e)

   102

§ 315(b)

   601

§ 316(a)(last Sentence)

   101 (“Outstanding”)

       (a)(1)(A)

   502, 512

       (a)(1)(B)

   513

       (b)

   508

       (c)

   104(e)

§ 317(a)(1)

   503

       (a)(2)

   504

       (b)

   1003

§ 318(a)

   111

 

Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.


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TABLE OF CONTENTS

 

         Page  

PARTIES

     1   

RECITALS OF THE COMPANY

     1   

ARTICLE ONE

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

  

  

SECTION 101.  

  Definitions      1   
  “Accelerated Indebtedness”      2   
  “Act”      2   
  “Additional Amounts”      2   
  “Affiliate”      2   
  “Authenticating Agent”      2   
  “Authorized Newspaper”      2   
  “Bearer Security”      2   
  “Board of Directors”      2   
  “Board Resolution”      1   
  “Business Day”      3   
  “calculation period”      3   
  “Canadian Taxes”      3   
  “Clearstream”      3   
  “Commission”      3   
  “Common Depositary”      3   
  “Company”      3   
  “Company Officer”      3   
  “Company Request” or “Company Order”      4   
  “Consolidated Net Tangible Assets”      4   
  “Conversion Date”      4   
  “Conversion Event”      4   
  “Corporate Trust Office”      4   
  “corporation”      4   
  “coupon”      5   
  “covenant defeasance”      5   
  “Currency”      5   
  “Current Assets”      5   
  “Default”      5   

 

Note: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture.


  “Defaulted Interest”      5   
  “defeasance”      5   

                

  “Depositary” or “Depositary for Securities”      5   
  “Dollar” or “$”      5   
  “Dollar Equivalent of the Foreign Currency”      5   
  “Election Date”      5   
  “Euroclear”      5   
  “Event of Default”      6   
  “Exchange Act”      6   
  “Exchange Date”      6   
  “Exchange Rate Agent”      6   
  “Exchange Rate Officer’s Certificate”      6   
  “Excluded Holder”      6   
  “Extension Notice”      6   
  “Extension Period”      6   
  “Facilities”      6   
  “Final Maturity”      6   
  “Financial Instrument Obligations”      7   
  “First Currency”      7   
  “Foreign Currency”      7   
  “GAAP”      7   
  “Government Obligations”      8   
  “Holder”      8   
  “Indenture”      8   
  “Indexed Security”      8   
  “interest”      9   
  “Interest Payment Date”      9   
  “Judgment Currency”      9   
  “Lien”      9   
  “Market Exchange Rate”      9   
  “Maturity”      9   
  “Non-Recourse Debt”      10   
  “Notice of Default”      10   
  “Officer’s Certificate”      10   
  “Opinion of Counsel”      10   
  “Optional Reset Date”      10   
  “Original Issue Discount Security”      10   
  “Original Stated Maturity”      10   
  “Other Currency”      10   
  “Outstanding”      10   
  “Paying Agent”      12   
  “Permitted Liens”      12   
  “Person”      14   
  “Place of Payment”      14   
  “Predecessor Security”      14   
  “Purchase Money Mortgage”      14   
  “Redemption Date”      15   
  “Redemption Price”      15   

 

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  “Registered Security”      15   
  “Regular Record Date”      15   

            

  “Repayment Date”      15   
  “Repayment Price”      15   
  “Required Currency”      15   
  “Reset Notice”      15   
  “Responsible Officer”      15   
  “Restricted Property”      16   
  “Restricted Securities”      16   
  “Restricted Subsidiary”      16   
  “Securities”      16   
  “Security Register” and “Security Registrar”      16   
  “Shareholders’ Equity”      16   
  “Special Record Date”      16   
  “Stated Maturity”      17   
  “Subsequent Interest Period”      17   
  “Subsidiary”      17   
  “Substantial Completion”      17   
  “Trust Indenture Act” or “TIA”      17   
  “Trustee”      17   
  “UCC”      17   
  “United States”      17   
  “United States person”      17   
  “Unrestricted Subsidiary”      18   
  “Valuation Date”      18   
  “Vice-President”      18   
  “Voting Shares”      18   
  “Yield to Maturity”      18   

SECTION 102.

  Compliance Certificates and Opinions      18   

SECTION 103.

  Form of Documents Delivered to Trustee      19   

SECTION 104.

  Acts of Holders      19   

SECTION 105.

  Notices, etc. to Trustee and Company      21   

SECTION 106.

  Notice to Holders; Waiver      21   

SECTION 107.

  Effect of Headings and Table of Contents      22   

SECTION 108.

  Successors and Assigns      23   

SECTION 109.

  Separability Clause      23   

SECTION 110.

  Benefits of Indenture      23   

SECTION 111.

  Governing Law      23   

SECTION 112.

  Legal Holidays      23   

SECTION 113.

  Agent for Service; Submission to Jurisdiction; Waiver of Immunities      73   

SECTION 114.

  Conversion of Currency      24   

SECTION 115.

  Currency Equivalent      25   

SECTION 116.

  Incorporators, Shareholders, Officers and Directors of the Company Exempt from Individual Liability      25   

SECTION 117.

  Conflict with the Trust Indenture Act      26   

 

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ARTICLE TWO

SECURITIES FORMS

  

  

SECTION 201.

  Forms Generally      26   

SECTION 202.

  Form of Trustee’s Certificate of Authentication      27   

SECTION 203.

  Securities Issuable in Global Form      27   

ARTICLE THREE

THE SECURITIES

  

  

SECTION 301.

  Amount Unlimited; Issuable in Series      28   

SECTION 302.

  Denominations      31   

SECTION 303.

  Execution, Authentication, Delivery and Dating      31   

SECTION 304.

  Temporary Securities      33   

SECTION 305.

  Registration, Registration of Transfer and Exchange      36   

SECTION 306.

  Mutilated, Destroyed, Lost and Stolen Securities      39   

SECTION 307.

  Payment of Principal and Interest; Interest Rights Preserved; Optional Interest Reset      40   

SECTION 308.

  Optional Extension of Stated Maturity      43   

SECTION 309.

  Persons Deemed Owners      44   

SECTION 310.

  Cancellation      45   

SECTION 311.

  Computation of Interest      45   

SECTION 312.

  Currency and Manner of Payments in Respect of Securities      45   

SECTION 313.

  Appointment and Resignation of Successor Exchange Rate Agent      48   

ARTICLE FOUR

SATISFACTION AND DISCHARGE

  

  

SECTION 401.

  Satisfaction and Discharge of Indenture      48   

SECTION 402.

  Application of Trust Money      50   

ARTICLE FIVE

REMEDIES

  

  

SECTION 501.

  Events of Default      50   

SECTION 502.

  Acceleration of Maturity; Rescission and Annulment      52   

SECTION 503.

  Collection of Indebtedness and Suits for Enforcement by Trustee      53   

SECTION 504.

  Trustee May File Proofs of Claim      54   

SECTION 505.

  Trustee May Enforce Claims Without Possession of Securities      54   

SECTION 506.

  Application of Money Collected      55   

SECTION 507.

  Limitation on Suits      55   

SECTION 508.

  Unconditional Right of Holders to Receive Principal (Premium, if any) and Interest      56   

SECTION 509.

  Restoration of Rights and Remedies      56   

SECTION 510.

  Rights and Remedies Cumulative      56   

SECTION 511.

  Delay or Omission Not Waiver      56   

 

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SECTION 512.

  Control by Holders      56   

SECTION 513.

  Waiver of Past Defaults      57   

SECTION 514.

  Waiver of Stay or Extension Laws      57   

SECTION 515.

  Undertaking for Costs      57   

ARTICLE SIX

THE TRUSTEE

  

  

SECTION 601.

  Notice of Defaults      58   

SECTION 602.

  Certain Duties and Responsibilities of Trustee      58   

SECTION 603.

  Certain Rights of Trustee      59   

SECTION 604.

  Trustee Not Responsible for Recitals or Issuance of Securities      61   

SECTION 605.

  May Hold Securities      61   

SECTION 606.

  Money Held in Trust      61   

SECTION 607.

  Compensation and Reimbursement      61   

SECTION 608.

  Corporate Trustee Required; Eligibility      62   

SECTION 609.

  Resignation and Removal; Appointment of Successor      62   

SECTION 610.

  Acceptance of Appointment by Successor      64   

SECTION 611.

  Merger, Conversion, Consolidation or Succession to Business      65   

SECTION 612.

  Authorization of Authenticating Agent      65   

ARTICLE SEVEN

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

  

  

SECTION 701.

  Company to Furnish Trustee Names and Addresses of Holders      67   

SECTION 702.

  Preservation of List of Names and Addresses of Holders      67   

SECTION 703.

  Disclosure of Names and Addresses of Holders      68   

SECTION 704.

  Reports by Trustee      68   

SECTION 705.

  Reports by the Company      68   

ARTICLE EIGHT

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

  

  

SECTION 801.

  Company May Consolidate, etc., Only on Certain Terms      69   

SECTION 802.

  Successor Person Substituted      70   

SECTION 803.

  Securities to Be Secured in Certain Events      70   

ARTICLE NINE

SUPPLEMENTAL INDENTURES

  

  

SECTION 901.

  Supplemental Indentures Without Consent of Holders      71   

SECTION 902.

  Supplemental Indentures with Consent of Holders      72   

SECTION 903.

  Execution of Supplemental Indentures      73   

SECTION 904.

  Effect of Supplemental Indentures      74   

SECTION 905.

  Conformity with the Trust Indenture Act      74   

 

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SECTION 906.

  Reference in Securities to Supplemental Indentures      74   

SECTION 907.

  Notice of Supplemental Indentures      74   

ARTICLE TEN

COVENANTS

  

  

SECTION 1001.

  Payment of Principal (Premium, if any) and Interest      74   

SECTION 1002.

  Maintenance of Office or Agency      74   

SECTION 1003.

  Money for Securities Payments to Be Held in Trust      76   

SECTION 1004.

  Statement as to Compliance      77   

SECTION 1005.

  Additional Amounts      77   

SECTION 1006.

  Limitation on Liens      79   

SECTION 1007.

  Payment of Taxes      80   

SECTION 1008.

  Corporate Existence      80   

SECTION 1009.

  Waiver of Certain Covenants      80   

ARTICLE ELEVEN

REDEMPTION OF SECURITIES

  

  

SECTION 1101.

  Applicability of Article      80   

SECTION 1102.

  Election to Redeem; Notice to Trustee      80   

SECTION 1103.

  Selection by Trustee of Securities to Be Redeemed      81   

SECTION 1104.

  Notice of Redemption      81   

SECTION 1105.

  Deposit of Redemption Price      82   

SECTION 1106.

  Securities Payable on Redemption Date      82   

SECTION 1107.

  Securities Redeemed in Part      83   

SECTION 1108.

  Tax Redemption      84   

ARTICLE TWELVE

SINKING FUNDS

  

  

SECTION 1201.

  Applicability of Article      84   

SECTION 1202.

  Satisfaction of Sinking Fund Payments with Securities      85   

SECTION 1203.

  Redemption of Securities for Sinking Fund      85   

ARTICLE THIRTEEN

REPAYMENT AT OPTION OF HOLDERS

  

  

SECTION 1301.

  Applicability of Article      86   

SECTION 1302.

  Repayment of Securities      86   

SECTION 1303.

  Exercise of Option      87   

SECTION 1304.

  When Securities Presented for Repayment Become Due and Payable      87   

SECTION 1305.

  Securities Repaid in Part      88   

 

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ARTICLE FOURTEEN

DEFEASANCE AND COVENANT DEFEASANCE

  

  

SECTION 1401.

  Company’s Option to Effect Defeasance or Covenant Defeasance      88   

SECTION 1402.

  Defeasance and Discharge      88   

SECTION 1403.

  Covenant Defeasance      89   

SECTION 1404.

  Conditions to Defeasance or Covenant Defeasance      89   

SECTION 1405.

  Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions      91   

SECTION 1406.

  Reinstatement      92   

ARTICLE FIFTEEN

MEETINGS OF HOLDERS OF SECURITIES

  

  

SECTION 1501.

  Purposes for Which Meetings May Be Called      93   

SECTION 1502.

  Call, Notice and Place of Meetings      93   

SECTION 1503.

  Persons Entitled to Vote at Meetings      93   

SECTION 1504.

  Quorum; Action      93   

SECTION 1505.

  Determination of Voting Rights; Conduct and Adjournment of Meetings      95   

SECTION 1506.

  Counting Votes and Recording Action of Meetings      96   

SECTION 1507.

  Counterparts      96   

TESTIMONIUM

     97   

SIGNATURES

     97   

FORMS OF CERTIFICATION

     EXHIBIT A   

 

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INDENTURE, dated as of August 13, 2007 between ENCANA CORPORATION, a corporation duly organized and existing under the laws of Canada (herein called the “ Company ”), having its principal office at 1800, 855 – 2 nd Street S.W., P.O. Box 2850, Calgary, Alberta T2P 2S5, and THE BANK OF NEW YORK, a New York banking Corporation, as trustee (herein called the “ Trustee ”).

RECITALS OF THE COMPANY

The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness (herein called the “ Securities ”), which may be convertible into or exchangeable for any securities of any Person (including the Company), to be issued in one or more series as provided in this Indenture.

This Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, that are required to be part of this Indenture and shall, to the extent applicable, be governed by such provisions.

All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

For and in consideration of the premises and the purchase of the Securities by the Holders (as defined below) thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows:

ARTICLE ONE

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

SECTION 101. Definitions.

For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;

(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;

(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP;

(4) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision:


(5) words implying any gender shall include all genders; and

(6) the words Subsection, Section and Article refer to the Subsections, Sections and Articles, respectively, of this Indenture unless otherwise noted.

Certain terms, used principally in Article Three, are defined in that Article.

Accelerated Indebtedness ” has the meaning specified in Section 501.

Act ” when used with respect to any Holder, has the meaning specified in Section 104.

Additional Amounts ” has the meaning specified in Section 1005.

Affiliate ” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

Authenticating Agent ” means any Person authorized by the Trustee to act on behalf of the Trustee pursuant to Section 612 to authenticate Securities.

Authorized Newspaper ” means a newspaper (which in the case of Canada, will, if practicable, be The Globe & Mail, in the case of New York, New York will, if practicable, be The Wall Street Journal (Eastern Edition), in the case of the United Kingdom will, if practicable, be The Financial Times (London Edition) and, in the case of Luxembourg, will, if practicable, be The Luxembourg (Wort), in the English language or in an official language of the country of publication, customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in Canada, New York, New York, the United Kingdom or Luxembourg, as applicable. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on any Business Day.

Bearer Security ” means any Security except a Registered Security.

Board of Directors ” means either the board of directors of the Company or any duly authorized committee of that board of directors.

Board Resolution ” means a copy of a resolution certified by the Corporate Secretary or any Assistant Corporate Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

Business Day ” when used with respect to any Place of Payment or any other particular location referred to in this indenture or in the Securities, means, unless otherwise specified with respect to any Securities pursuant to Section 301, any day other than Saturday,

 

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Sunday or any other day which is not a day on which commercial banking institutions in that Place of Payment or other location are closed or required by any applicable law or regulation or executive order to close.

calculation period ” has the meaning specified in Section 311.

Canadian Taxes ” has the meaning specified in Section 1005.

Clearstream ” means Clearstream Banking, société anonyme, or its successor.

Commission ” means the U.S. Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

Common Depositary ” has the meaning specified in Section 304.

Company ” means the Person named as the “ Company ” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.

Company Officer ” means any one of the Chairman, President, Chief Executive Officer, Chief Financial Officer, Vice-President, Treasurer, Assistant Treasurer, Corporate Secretary or Assistant Corporate Secretary of the Company.

Company Request or Company Order ” means a written request or order signed in the name of the Company by a Company Officer and delivered to the Trustee.

Consolidated Net Tangible Assets ” means the total amount of assets of any Person on a consolidated basis (less applicable reserves and other properly deductible items), after deducting therefrom:

 

  (i) all current liabilities (excluding any indebtedness classified as a current liability and any current liabilities which are by their terms extendible or renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed);

 

  (ii) all goodwill, trade names, trademarks, patents, unamortized debt discounts and expenses and other like intangibles; and

 

  (iii) appropriate adjustments on account of minority interests of other persons holding shares of the Subsidiaries of such Person,

in each case, as shown on the most recent annual audited or quarterly unaudited consolidated balance sheet of such Person computed in accordance with GAAP.

Conversion Date ” has the meaning specified in Section 312(d).

 

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Conversion Event ” means the cessation of use of a Foreign Currency both by the government of the country which issued such Currency and by a central bank or other public institution of or within the international banking community for the settlement of transactions.

Corporate Trust Office ” means the principal office of the Trustee, at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 101 Barclay Street, Floor 4 East, New York, New York 10286, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).

corporation ” includes corporations, associations, companies and business trusts.

coupon ” means any interest coupon appertaining to a Bearer Security.

covenant defeasance ” has the meaning specified in Section 1403.

Currency ” means any currency or currencies or composite currency issued by the government of one or more countries or by any recognized confederation or association of such governments.

Current Assets ” means assets which in the ordinary course of business are expected to be realized in cash or sold or consumed within 12 months.

Default ” means any event which is, or after notice or passage of time or both would be, an Event of Default.

Defaulted Interest ” has the meaning specified in Section 307.

defeasance ” has the meaning specified in Section 1402.

Depositary or Depositary for Securities ” means The Depository Trust Company, or any successor thereto or any other Person designated pursuant to Section 305.

Dollar or $ ” means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time shall be legal tender for the payment of public and private debts.

Dollar Equivalent of the Foreign Currency ” shall be determined as specified in Section 312(f).

Election Date ” has the meaning specified in Section 312(g).

Euroclear ” means Euroclear Bank S.A./N.A., or its successor as operator of the Euroclear System.

Event of Default ” has the meaning specified in Section 501.

Exchange Act ” means the United States Securities Exchange Act of 1934, as amended.

 

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Exchange Date ” has the meaning specified in Section 304.

Exchange Rate Agent ” means, with respect to Securities of or within any series, unless otherwise specified with respect to any Securities pursuant to Section 301, a New York clearing house bank, designated pursuant to Section 301 or Section 313.

Exchange Rate Officer’s Certificate ” means a tested telex, facsimile or a certificate setting forth (i) the applicable Market Exchange Rate and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if any) and interest, if any (on an aggregate basis and on the basis of a Security having the lowest denomination principal amount determined in accordance with Section 302 in the relevant Currency), payable with respect to a Security of any series on the basis of such Market Exchange Rate, sent (in the case of a telex or facsimile) or signed (in the case of a certificate) by the Treasurer, any Vice-President or any Assistant Treasurer of the Company.

Excluded Holder ” has the meaning specified in Section 1005.

Extension Notice ” has the meaning specified in Section 308.

Extension Period ” has the meaning specified in Section 308.

Facilities ” means any drilling equipment, production equipment and platforms or mining equipment; pipelines, pumping stations and other pipeline facilities; terminals, warehouses and storage facilities; bulk plants; production, separation, dehydration, extraction, treating and processing facilities; gasification or natural gas liquefying facilities; flares, stacks and burning towers; floatation mills, crushers and ore handling facilities; tank cars, tankers, barges, ships, trucks, automobiles, airplanes and other marine, automotive, aeronautical and other similar moveable facilities or equipment; computer systems and associated programs or office equipment; roads, airports, docks (including drydocks); reservoirs and waste disposal facilities; sewers; generating plants (including power plants) and electric lines; telephone and telegraph lines, radio and other communications facilities; townsites, housing facilities, recreation halls, stores and other related facilities; and similar facilities and equipment of or associated with any of the foregoing.

Final Maturity ” has the meaning specified in Section 308.

Financial Instrument Obligations ” means obligations arising under:

 

  (i) interest rate swap agreements, forward rate agreements, floor, cap or collar agreements, futures or options, insurance or other similar agreements or arrangements, or any combination thereof, entered into by a Person relating to interest rates or pursuant to which the price, value or amount payable thereunder is dependent or based upon interest rates in effect from time to time or fluctuations in interest rates occurring from time to time;

 

  (ii)

currency swap agreements, cross-currency agreements, forward agreements, floor, cap or collar agreements, futures or options, insurance or other similar agreements or arrangements, or any combination thereof, entered into by a Person relating to currency exchange rates or pursuant to

 

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  which the price, value or amount payable thereunder is dependent or based upon currency exchange rates in effect from time to time or fluctuations in currency exchange rates occurring from time to time; and

 

  (iii) commodity swap or hedging agreements, floor, cap or collar agreements, commodity futures or options or other similar agreements or arrangements, or any combination thereof, entered into by a Person relating to one or more commodities or pursuant to which the price, value or amount payable thereunder is dependent or based upon the price of one or more commodities in effect from time to time or fluctuations in the price of one or more commodities occurring from time to time.

First Currency ” has the meaning specified in Section 115.

Foreign Currency ” means any Currency other than the Dollar.

GAAP ” means generally accepted accounting principles in Canada which are in effect from time to time, unless such Person’s most recent audited or quarterly unaudited financial statements are not prepared in accordance with generally accepted accounting principles in Canada, in which case GAAP shall mean generally accepted accounting principles in the United States in effect from time to time.

Government Obligations ” means, unless otherwise specified with respect to any series of Securities pursuant to Section 301, securities which are (i) direct obligations of the government which issued the Currency in which the Securities of a particular series are payable or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the government which issued the Currency in which the Securities of such series are payable, the payment of which is unconditionally guaranteed by such government, which, in either case, are full faith and credit obligations of such government payable in such Currency and are not callable or redeemable at the option of the issuer thereof and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of any such Government Obligation held by such custodian for the account of the holder of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest or principal of the Government Obligation evidenced by such depository receipt.

Holder ” means, in the case of a Registered Security, the Person in whose name a Security is registered in the Security Register and, in the case of a Bearer Security, the bearer thereof and, when used with respect to any coupon, shall mean the bearer thereof.

Indenture ” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, and shall include the terms of particular series of Securities established as contemplated by Section 301; provided , however , that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended by

 

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one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities for which such Person is Trustee established as contemplated by Section 301, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto executed and delivered after such Person had become such Trustee but to which such Person, as such Trustee, was not a party.

Indexed Security ” means a Security the terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount thereof at original issuance.

interest ”, when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity at the rate prescribed in such Original Issue Discount Security.

Interest Payment Date ”, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.

Judgment Currency ” has the meaning specified in Section 114.

Lien ” means, with respect to any properties or assets, any mortgage or deed of trust, pledge, hypothecation, assignment, security interest, lien, charge, encumbrance, preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever on or with respect to such properties or assets (including, without limitation, any conditional sale or other title retention agreement having substantially the same economic effect as any of the foregoing).

Market Exchange Rate ” means, unless otherwise specified with respect to any Securities pursuant to Section 301, (i) for any conversion of Dollars into any Foreign Currency, the noon (New York time) buying rate for such Foreign Currency for cable transfers quoted in New York, New York as certified for customs purposes by the Federal Reserve Bank of New York and (ii) for any conversion of one Foreign Currency into Dollars or another Foreign Currency, the spot rate at noon local time in the relevant market at which, in accordance with normal banking procedures, the Dollars or Foreign Currency into which conversion is being made could be purchased with the Foreign Currency from which conversion is being made from major banks located in either New York, New York, London, England or any other principal market for Dollars or such purchased Foreign Currency, in each case determined by the Exchange Rate Agent. Unless otherwise specified with respect to any Securities pursuant to Section 301, in the event of the unavailability of any of the exchange rates provided for in the foregoing clauses (i) and (ii), the Exchange Rate Agent shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or more major banks in New York, New York, London, England or another principal market for the Currency in question, or such other quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is more than one market for dealing in any Currency by reason of foreign exchange regulations or otherwise, the market to be used in respect of such Currency

 

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shall be that upon which a non-resident issuer of securities designated in such Currency would purchase such Currency in order to make payments in respect of such securities.

Maturity ”, when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption, notice of option to elect repayment or otherwise.

Non-Recourse Debt ” means indebtedness to finance the creation, development, construction or acquisition of properties or assets and any increases in or extensions, renewals or refinancings of such indebtedness, provided that the recourse of the lender thereof (including any agent, trustee, receiver or other Person acting on behalf of such lender) in respect of such indebtedness is limited in all circumstances to the properties or assets created, developed, constructed or acquired in respect of which such indebtedness has been incurred and to the receivables, inventory, equipment, chattels payable, contracts, intangibles and other assets, rights or collateral connected with the properties or assets created, developed, constructed or acquired and to which such lender has recourse.

Notice of Default ” has the meaning specified in Section 501.

Officer’s Certificate ” means a certificate signed by any Company Officer and delivered to the Trustee.

Opinion of Counsel ” means a written opinion of counsel, who may be counsel for the Company, including an employee of the Company, and who shall be acceptable to the Trustee, acting reasonably.

Optional Reset Date ” has the meaning specified in Section 307.

Original Issue Discount Security ” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.

Original Stated Maturity ” has the meaning specified in Section 308.

Other Currency ” has the meaning specified in Section 115.

Outstanding ”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except :

 

  (i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

 

  (ii)

Securities, or portions thereof, for which money in the necessary amount relating to payment, redemption or repayment at the option of the Holders has been deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities and any coupons appertaining thereto; provided that, if such

 

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  Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;

 

  (iii) Securities, except to the extent provided in Sections 1402 and 1403, with respect to which the Company has effected defeasance and/or covenant defeasance as provided in Article Fourteen; and

 

  (iv) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a protected purchaser (as defined in Article 8 of the UCC) in whose hands such Securities are valid obligations of the Company;

provided , however , that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum purposes, and for the purpose of making the calculations required by TIA Section 313, (A) the principal amount of an Original Issue Discount Security that may be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the amount of principal thereof that would be (or shall have been declared to be) due and payable, at the time of such determination, upon a declaration of acceleration of the maturity thereof pursuant to Section 502, (B) the principal amount of any Security denominated in a Foreign Currency that may be counted in making such determination or calculation and that shall be deemed Outstanding for such purpose shall be equal to the Dollar equivalent, determined as of the date such Security is originally issued by the Company as set forth in an Exchange Rate Officer’s Certificate delivered to the Trustee, of the principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent as of such date of original issuance of the amount determined as provided in clause (A) above) of such Security, (C) the principal amount of any Indexed Security that may be counted in making such determination or calculation and that shall be deemed outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise provided with respect to such Security pursuant to Section 301, and (D) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making such calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor.

Paying Agent ” means any Person (including the Company acting as Paying Agent) authorized by the Company to pay the principal of (or premium, if any) or interest, if any, on any Securities on behalf of the Company.

 

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Permitted Liens ” of any Person at any particular time means:

 

  (i) Liens existing as of the date of this Indenture, or arising thereafter pursuant to contractual commitments entered into prior to such date;

 

  (ii) Liens on Current Assets given in the ordinary course of business to any financial institution or others to secure any indebtedness payable on demand or maturing (including any right of extension or renewal) within 12 months from the date such indebtedness is incurred;

 

  (iii) Liens in connection with indebtedness, which, by its terms, is Non-Recourse Debt to the Company or any of its Subsidiaries;

 

  (iv) Liens existing on property or assets at the time of acquisition (including by way of lease) by such Person, provided that such Liens were not incurred in anticipation of such acquisition;

 

  (v) Liens or obligations to incur Liens (including under indentures, trust deeds and similar instruments) on property or assets of another Person existing at the time such other Person becomes a Subsidiary of such Person, or is liquidated or merged into, or amalgamated or consolidated with, such Person or Subsidiary of such Person or at the time of the sale, lease or other disposition to such Person or Subsidiary of such Person of all or substantially all of the properties and assets of such other Person, provided that such Liens were not incurred in anticipation of such other Person becoming a Subsidiary of such Person;

 

  (vi) Liens upon property or assets of whatsoever nature other than Restricted Property;

 

  (vii) Liens upon property, assets or facilities used in connection with, or necessarily incidental to, the purchase, sale, storage, transportation or distribution of oil or gas, or the products derived from oil or gas;

 

  (viii)

Liens arising under partnership agreements, oil and natural gas leases, overriding royalty agreements, net profits agreements, production payment agreements, royalty trust agreements, master limited partnership agreements, farm-out agreements, division orders, contracts for the sale, purchase, exchange, storage, transportation, distribution, gathering or processing of Restricted Property, unitizations and pooling designations, declarations, orders and agreements, development agreements, operating agreements, production sales contracts (including security in respect of take or pay or similar obligations thereunder), area of mutual interest agreements, natural gas balancing or deferred production agreements, injection, repressuring and recycling agreements, salt water or other disposal agreements, seismic or geophysical permits or agreements, which in each of the foregoing cases is customary in the oil and natural gas business, and other agreements which are customary in the oil and natural

 

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  gas business, provided in all instances that such Lien is limited to the property or assets that are the subject of the relevant agreement;

 

  (ix) Liens on assets or property (including oil sands property) securing; (A) all or any portion of the cost of acquisition (directly or indirectly), surveying, exploration, drilling, development, extraction, operation, production, construction, alteration, repair or improvement of all or any part of such assets or property, the plugging and abandonment of wells and the decommissioning or removal of structures or facilities located thereon, and the reclamation and clean-up of such properties, facilities and interests and surrounding lands whether or not owned by the Company or its Restricted Subsidiaries, (B) all or any portion of the cost of acquiring (directly or indirectly), developing, constructing, altering, improving, operating or repairing any assets or property (or improvements on such assets or property) used or to be used in connection with such assets or property, whether or not located (or located from time to time) at or on such assets or property, and (C) indebtedness incurred by the Company or any of its Subsidiaries to provide funds for the activities set forth in clauses (A) and (B) above, provided such indebtedness is incurred prior to, during or within two years after the completion of acquisition, construction or such other activities referred to in clauses (A) and (B) above, and (D) indebtedness incurred by the Company or any of its Subsidiaries to refinance indebtedness incurred for the purposes set forth in clauses (A) and (B) above. Without limiting the generality of the foregoing, costs incurred after the date hereof with respect to clauses (A) or (B) above shall include costs incurred for all facilities relating to such assets or property, or to projects, ventures or other arrangements of which such assets or property form a part or which relate to such assets or property, which facilities shall include, without limitation, Facilities, whether or not in whole or in part located (or from time to time located) at or on such assets or property;

 

  (x) Liens granted in the ordinary course of business in connection with Financial Instrument Obligations;

 

  (xi) Purchase Money Mortgages;

 

  (xii) Liens in favor of the Company or any of its Subsidiaries to secure indebtedness owed to the Company or any of its Subsidiaries; and

 

  (xiii)

any extension, renewal, alteration, refinancing, replacement, exchange or refunding (or successive extensions, renewals, alterations, refinancings, replacements, exchanges or refundings) of all or part of any Lien referred to in the foregoing clauses; provided , however, that (A) such new Lien shall be limited to all or part of the property or assets which was secured by the prior Lien plus improvements on such property or assets and (B) the indebtedness, if any, secured by the new Lien is not increased from the amount of the indebtedness secured by the prior Lien then existing at

 

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  the time of such extension, renewal, alteration, refinancing, replacement, exchange or refunding, plus an amount necessary to pay fees and expenses, including premiums, related to such extensions, renewals, alterations, refinancings, replacements, exchanges or refundings.

Person ” means any individual, corporation, partnership, limited liability company, unlimited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

Place of Payment ” means, when used with respect to the Securities of or within any series, the place or places where the principal of (and premium, if any) and interest, if any, on such Securities are payable as specified as contemplated by Sections 301 and 1002.

Predecessor Security ” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a mutilated, destroyed, lost or stolen coupon appertains shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security or the Security to which the mutilated, destroyed, lost or stolen coupon appertains, as the case may be.

Purchase Money Mortgage ” of any Person means any Lien created upon any property or assets of such Person to secure or securing the whole or any part of the purchase price of such property or assets or the whole or any part of the cost of constructing or installing fixed improvements thereon or to secure or securing the repayment of money borrowed to pay the whole or any part of such purchase price or cost of any vendor’s privilege or Lien on such property or assets securing all or any part of such purchase price or cost including title retention agreements and leases in the nature of title retention agreements; provided that (i) the principal amount of money borrowed which is secured by such Lien does not exceed 100% of such purchase price or cost and any fees incurred in connection therewith, and (ii) such Lien does not extend to or cover any other property other than such item of property and any improvements on such item.

Redemption Date ”, when used with respect to any Security to be redeemed, in whole or in part, means the date fixed for such redemption by or pursuant to this Indenture.

Redemption Price ”’, when used with respect to any Security to be redeemed, in whole or in part, means the price at which it is to be redeemed pursuant to this Indenture.

Registered Security ” means any Security registered in the Security Register.

Regular Record Date ” for the interest payable on any Interest Payment Date on the Registered Securities of or within any series means the date specified for that purpose as contemplated by Section 301.

Repayment Date ” means, when used with respect to any Security to be repaid at the option of the Holder, the date fixed for such repayment pursuant to this Indenture.

 

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Repayment Price ” means, when used with respect to any Security to be repaid at the option of the Holder, the price at which it is to be repaid pursuant to this Indenture.

Required Currency ” has the meaning specified in Section 114.

Reset Notice ” has the meaning specified in Section 307.

Responsible Officer ”, when used with respect to the Trustee, means any vice-president, any assistant vice-president, any assistant secretary, any assistant treasurer, any trust officer or assistant trust officer or any other officer of the Trustee customarily performing functions similar to those performed by any of the above-designated officers, and assigned to or employed by the Trustee’s corporate trust department, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.

Restricted Property ” means any oil, gas or mineral property of a primary nature located in the United States or Canada, and any facilities located in the United States or Canada, directly related to the mining, processing or manufacture of hydrocarbons or minerals, or any of the constituents thereof, or the derivatives therefrom and includes Voting Shares or other interests of a corporation or other Person which owns such property or facilities, but does not include (i) any property or facilities used in connection with or necessarily incidental to the purchase, sale, storage, transportation or distribution of Restricted Property, (ii) any property which, in the opinion of the Board of Directors, is not materially important to the total business conducted by the Company and its Subsidiaries as an entirety, or (iii) any portion of a particular property which, in the opinion of the Board of Directors, is not materially important to the use or operation of such property.

Restricted Securities ” means shares of stock or indebtedness of any Restricted Subsidiary.

Restricted Subsidiary ” means, on any date, any Subsidiary of the Company which owns at the time Restricted Property; provided , however , such term shall not include a Subsidiary of the Company if the amount of the Company’s share of Shareholders’ Equity of such Subsidiary constitutes, at the time of determination, less than 2% of the Consolidated Net Tangible Assets of the Company.

Securities ” has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture; provided , howeve r, that if at any time there is more than one Person acting as Trustee under this Indenture, “Securities” with respect to the Indenture as to which such Person is Trustee shall have the meaning stated in the first recital of this Indenture and shall more particularly mean Securities authenticated and delivered under this Indenture, exclusive, however, of Securities of any series as to which such Person is not Trustee.

Security Register and Security Registrar ” have the respective meanings specified in Section 305.

Shareholders’ Equity ” means the aggregate amount of shareholders’ equity (including but not limited to share capital, contributed surplus and retained earnings) of a Person

 

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as shown on the most recent annual audited or quarterly unaudited consolidated balance sheet of such Person and computed in accordance with GAAP.

Special Record Date ” for the payment of any Defaulted Interest on the Registered Securities of or within any series means a date fixed by the Trustee pursuant to Section 307.

Stated Maturity ”, when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security or a coupon representing such installment of interest as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable, as such date may be extended pursuant to the provisions of Section 308.

Subsequent Interest Period ” has the meaning specified in Section 307.

Subsidiary ” of any Person means, on any date, any corporation or other Person of which Voting Shares or other interests carrying more than 50% of the voting rights attached to all outstanding Voting Shares or other interests are owned, directly or indirectly, by or for such Person or one or more Subsidiaries thereof.

Substantial Completion ” means, with respect to an improvement, the point at which the improvement is ready for use or is being used for the purpose for which it was intended.

Trust Indenture Act or TIA ” means the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was executed, except as provided in Section 905.

Trustee ” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder; provided , however , that if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean only the Trustee with respect to Securities of that series.

UCC ” means the New York uniform commercial code in effect from time to time.

United States ” means the United States of America (including the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.

United States person ” means an individual who is a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws of the United States or an estate or trust the income of which is subject to United States federal income taxation regardless of its source.

Unrestricted Subsidiary ” means a Subsidiary which is not or which has ceased to be a Restricted Subsidiary.

Valuation Date ” has the meaning specified in Section 312(c).

 

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Vice-President ”, when used with respect to the Company or the Trustee, means any vice-president, whether or not designated by a number or a word or words added before or after the title “vice-president”.

Voting Shares ” means shares of any class of any corporation carrying voting rights under all circumstances, provided that, for the purposes of this definition, shares which only carry the right to vote conditionally on the happening of any event shall not be considered Voting Shares, nor shall any shares be deemed to cease to be Voting Shares solely by reason of a right to vote accruing to shares of another class or classes by reason of the happening of such an event, or solely because the right to vote may not be exercisable under the charter of the corporation.

Yield to Maturity ” means the yield to maturity, computed at the time of issuance of a Security (or, if applicable, at the most recent redetermination of interest on such Security) and as set forth in such Security in accordance with generally accepted United States bond yield computation principles.

SECTION 102. Compliance Certificates and Opinions.

Upon any written application or written request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture (including any covenant, compliance with which constitutes a condition precedent) relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.

Every certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture (other than pursuant to Section 1004) shall include:

(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;

(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and

(4) a statement as to whether, in the opinion of each such individual, such covenant or condition has been complied with.

 

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SECTION 103. Form of Documents Delivered to Trustee.

In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.

Any certificate or opinion of an officer of the Company or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of, or representations by, an accountant or firm of accountants in the employ of the Company, unless such officer or counsel, as the case may be, knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the accounting matters upon which such certificate or opinion may be based are erroneous.

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

SECTION 104. Acts of Holders.

(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of the Outstanding Securities of all series or one or more series, as the case may be, may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing. If Securities of a series are issuable as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of such series may, alternatively, be embodied in and evidenced by the record of Holders of Securities of such series voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of Securities of such series duly called and held in accordance with the provisions of Article Fifteen, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “ Act ” of the Holders signing

 

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such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 1506.

(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.

(c) The principal amount and serial numbers of Registered Securities held by any Person, and the date of holding the same, shall be proved by the Security Register.

(d) The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may be proved by the production of such Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary, wherever situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such Person had on deposit with such depositary, or exhibited to it, the Bearer Securities therein described; or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the Company may assume that such ownership of any Bearer Security continues until (1) another certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, or (2) such Bearer Security is produced to the Trustee by some other Person, or (3) such Bearer Security is surrendered in exchange for a Registered Security, or (4) such Bearer Security is no longer Outstanding. The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may also be proved in any other manner that the Trustee deems sufficient.

(e) If the Company shall solicit from the Holders of Registered Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. Notwithstanding TIA Section 316(c), such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation of Holders generally in connection therewith and not later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of

 

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record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than eleven months after the record date.

(f) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.

SECTION 105. Notices, etc. to Trustee and Company.

Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other documents provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,

(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention; Corporate Trust Administration, or

(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this Indenture or at any other address previously furnished in writing to the Trustee by the Company.

SECTION 106. Notice to Holders; Waiver.

Where this Indenture provides for notice of any event to Holders of Registered Securities by the Company or the Trustee, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided. Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or not such Holder actually receives such notice.

In case, by reason of the suspension of or irregularities in regular mail service or by reason of any other cause, it shall be impractical to mail notice of any event to Holders of Registered Securities when such notice is required to be given pursuant to any provision of this

 

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Indenture, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be sufficient giving of such notice for every purpose hereunder.

Except as otherwise expressly provided herein or otherwise specified with respect to any Securities pursuant to Section 301, where this Indenture provides for notice to Holders of Bearer Securities of any event, such notice shall be sufficiently given to Holders of Bearer Securities if published in an Authorized Newspaper in New York, New York and in such other city or cities as may be specified in such Securities on a Business Day at least twice, the first such publication to be not earlier than the earliest date, and not later than the latest date, prescribed for the giving of such notice. Any such notice shall be deemed to have been given on the date of the first such publication.

In case, by reason of the suspension of publication of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause, it shall be impracticable to publish any notice to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be given with the approval of the Trustee shall constitute sufficient notice to such Holders for every purpose hereunder. Neither the failure to give notice by publication to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of such notice with respect to other Holders of Bearer Securities or the sufficiency of any notice to Holders of Registered Securities given as provided herein.

Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.

Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

SECTION 107. Effect of Headings and Table of Contents.

The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

SECTION 108. Successors and Assigns.

All covenants and agreements in this Indenture by the Company and the Trustee shall bind their successors and assigns, whether so expressed or not.

SECTION 109. Seperability Clause.

In case any provision in this Indenture or in any Security or coupon shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

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SECTION 110. Benefits of Indenture.

Nothing in this Indenture or in the Securities or coupons, express or implied, shall give to any Person, other than the parties hereto, any Authenticating Agent, any Paying Agent, any Securities Registrar and their successors hereunder and the Holders of Securities or coupons, any benefit or any legal or equitable right, remedy or claim under this Indenture.

SECTION 111. Governing Law.

This Indenture and the Securities and coupons shall be governed by and construed in accordance with the law of the State of New York without regard to principles of conflicts of law. This Indenture is subject to the provisions of the Trust Indenture Act that are required to be part of this Indenture and shall, to the extent applicable, be governed by such provisions.

SECTION 112. Legal Holidays.

In any case where any Interest Payment Date, Redemption Date, sinking fund payment date or Stated Maturity or Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of any Security or coupon other than a provision in the Securities of any series which specifically states that such provision shall apply in lieu of this Section), payment of principal (or premium, if any) or interest, if any, need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date or sinking fund payment date, or at the Stated Maturity or Maturity; provided that no additional interest shall accrue for the period from and after such Interest Payment Date, Redemption Date, sinking fund payment date. Stated Maturity or Maturity, as the case may be.

SECTION 113. Agent for Service; Submission to Jurisdiction; Waiver of Immunities.

By the execution and delivery of this Indenture, the Company (i) acknowledges that it has irrevocably designated and appointed CT Corporation System, 111 8 th Avenue, 13 th Floor, New York, New York, 10011 (“ CT Corporation ”) as its authorized agent upon which process may be served in any suit or proceeding arising out of or relating to the Securities or this Indenture that may be instituted in any federal or New York state court located in New York, New York or brought under federal or state securities laws or brought by the Trustee (whether in its individual capacity or in its capacity as Trustee hereunder), (ii) submits to the non-exclusive jurisdiction of any such court in any such suit or proceeding, and (iii) agrees that service of process upon CT Corporation and written notice of said service to the Company (mailed or delivered to the Company, Attention: General Counsel, at its principal office specified in the first paragraph of this Indenture and in the manner specified in Section 105 hereof), shall be deemed in every respect effective service of process upon the Company in any such suit or proceeding. The Company further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of CT Corporation in full force and effect so long as any of the Securities shall be outstanding.

 

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To the extent that the Company has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, the Company hereby irrevocably waives such immunity in respect of its obligations under this Indenture and the Securities, to the extent permitted by law.

The Company hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Indenture or the Securities in any federal or state court in the State of New York, Borough of Manhattan. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

SECTION 114. Conversion of Currency.

(a) The Company covenants and agrees that the following provisions shall apply to conversion of currency in the case of the Securities and this Indenture:

(1) If for the purposes of obtaining judgment in, or enforcing the judgment of, any court in any country, it becomes necessary to convert into any other currency (the “ Judgment Currency ”) an amount due or contingently due under the Securities of any series and this Indenture (the “ Required Currency ”), then the conversion shall be made at the rate of exchange prevailing on the Business Day before the day on which a final judgment which is not appealable or is not appealed is given or the order of enforcement is made, as the case may be (unless a court shall otherwise determine).

(2) If there is a change in the rate of exchange prevailing between the Business Day before the day on which the judgment referred to in (1) above is given or an order of enforcement is made, as the case may be (or such other date as a court shall determine), and the date of receipt of the amount due, the Company shall pay such additional (or, as the case may be, such lesser) amount, if any, as may be necessary so that the amount paid in the Judgment Currency when converted at the rate of exchange prevailing on the date of receipt will produce the amount in the Required Currency originally due.

(b) In the event of the winding-up of the Company at any time while any amount or damages owing under the Securities and this Indenture, or any judgment or order rendered in respect thereof, shall remain outstanding, the Company shall indemnify and hold the Holders of Securities and the Trustee harmless against any deficiency arising or resulting from any variation in rates of exchange between (1) the date as of which the equivalent of the amount in the Required Currency (other than under this Subsection (b)) is calculated for the purposes of such winding-up and (2) the final date for the filing of proofs of claim in such winding-up. For the purpose of this Subsection (b) the final date for the filing of proofs of claim in the winding-up of the Company shall be the date fixed by the liquidator or otherwise in accordance with the relevant provisions of applicable law as being the latest practicable date as at which liabilities of the Company may be ascertained for such winding-up prior to payment by the liquidator or otherwise in respect thereto.

 

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(c) The obligations contained in Subsections (a)(2) and (b) of this Section shall constitute separate and independent obligations of the Company from its other obligations under the Securities and this Indenture, shall give rise to separate and independent causes of action against the Company, shall apply irrespective of any waiver or extension granted by any Holder or Trustee from time to time and shall continue in full force and effect notwithstanding any judgment or order or the filing of any proof of claim in the winding-up of the Company for a liquidated sum in respect of amounts due hereunder (other than under Subsection (b) above) or under any such judgment or order. Any such deficiency as aforesaid shall be deemed to constitute a loss suffered by the Holders or the Trustee, as the case may be, and no proof or evidence of any actual loss shall be required by the Company or the applicable liquidator. In the case of Subsection (b) above, the amount of such deficiency shall not be deemed to be reduced by any variation in rates of exchange occurring between the said final date and the date of any liquidating distribution.

(d) The term “ rate(s) of exchange ” shall mean the Bank of Canada noon rate for purchases on the relevant date of the Required Currency with the Judgment Currency, as reported on the “Exchange Rates—Daily noon rates” page of the website of Bank of Canada (or by such other means of reporting the Bank of Canada noon rate as may be agreed upon by each of the parties to this Indenture) and includes any premiums and costs of exchange payable.

SECTION 115. Currency Equivalent.

Except as otherwise provided in this Indenture, for purposes of the construction of the terms of this Indenture or of the Securities, in the event that any amount is stated herein in the Currency of one nation (the “ First Currency ”), as of any date such amount shall also be deemed to represent the amount in the Currency of any other relevant nation (the “ Other Currency ”) which is required to purchase such amount in the First Currency at the Bank of Canada noon rate as reported on the “Exchange Rates—Daily noon rates” page of the website of Bank of Canada (or by such other means of reporting the Bank of Canada noon rate as may be agreed upon by each of the parties to this Indenture) on the date of determination.

SECTION 116. Incorporators, Shareholders, Officers and Directors of the Company Exempt from Individual Liability.

No recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such, or against any past, present or future shareholder, officer or director, as such, of the Company or of any successor, either directly or through the Company or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders as part of the consideration for the issue of the Securities.

 

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SECTION 117. Conflict with the Trust Indenture Act.

If and to the extent that any provision hereof limits, qualifies or conflicts with the duties imposed by any of Sections 310 to 318, inclusive, of the Trust Indenture Act, through operation of Section 318(c) thereof, such imposed duties shall control.

ARTICLE TWO

SECURITIES FORMS

SECTION 201. Forms Generally.

The Registered Securities, if any, of each series and the Bearer Securities, if any, of each series and related coupons shall be in substantially the forms as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Securities or coupons, as evidenced by their execution of the Securities or coupons. If the forms of Securities or coupons of any series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Corporate Secretary or an Assistant Corporate Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Securities or coupons. Any portion of the text of any Security may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Security.

Unless otherwise specified as contemplated by Section 301, Securities in bearer form shall have interest coupons attached.

The Trustee’s certificate of authentication on all Securities shall be in substantially the form set forth in this Article.

The definitive Securities and coupons shall be printed, lithographed or engraved on steel-engraved borders or may be produced in any other manner, all as determined by the officers of the Company executing such Securities, as evidenced by their execution of such Securities or coupons.

SECTION 202. Form of Trustee’s Certificate of Authentication.

Subject to Section 612, the Trustee’s certificate of authentication shall be in substantially the following form:

 

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TRUSTEE’S CERTIFICATE OF AUTHENTICATION

Dated:                                       

This is one of the Securities of the series designated and referred to in, and issued under, the within-mentioned Indenture.

 

THE BANK OF NEW YORK,

as Trustee

By  

 

  Authorized Signatory

SECTION 203. Securities Issuable in Global Form.

If Securities of or within a series are issuable in global form, as specified and contemplated by Section 301, then, notwithstanding clause (8) of Section 301 and Section 302, any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities of such series from time to time endorsed thereon and that the aggregate amount of Outstanding Securities of such series represented thereby may from time to time be increased or decreased to reflect exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon written instructions given by such Person or Persons as shall be specified therein or in the Company Order to be delivered to the Trustee pursuant to Section 303 or Section 304. Subject to the provisions of Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon written instructions given by the Person or Persons specified therein or in the applicable Company Order. If a Company Order pursuant to Section 303 or Section 304 has been, or simultaneously is, delivered, any instructions by the Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 102 and need not be accompanied by an Opinion of Counsel.

The provisions of the last sentence of Section 303 shall apply to any Security represented by a Security in global form if such Security was never issued and sold by the Company and the Company delivers to the Trustee the Security in global form together with written instructions (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 303.

Notwithstanding the provisions of Section 307, unless otherwise specified as contemplated by Section 301, payment of principal of (and premium, if any) and interest, if any, on any Security in permanent global form shall be made to the Person or Persons specified therein.

 

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ARTICLE THREE

THE SECURITIES

SECTION 301. Amount Unlimited; Issuable in Series.

The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.

The Securities may be issued in one or more series. There shall be established in one or more Board Resolutions or pursuant to authority granted by one or more Board Resolutions and, subject to Section 303, set forth in, or determined in the manner provided in, an Officer’s Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series, any or all of the following, as applicable (each of which (except for the matters set forth in clauses (1), (2) and (17) below), if so provided, may be determined from time to time by the Company with respect to unissued Securities of the series and set forth in such Securities of the series when issued from time to time);

(1) the title of the Securities of the series (which shall distinguish the Securities of the series from all other series of Securities);

(2) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or 1305);

(3) the date or dates, or the method by which such date or dates will be determined or extended, on which the Securities of the series may be issued and on which the principal of the Securities of the series is payable;

(4) the rate or rates (whether fixed or variable) at which the Securities of the series shall bear interest, if any, or the method by which such rate or rates shall be determined, the date or dates from which such interest shall accrue, or the method by which such date or dates shall be determined, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date, if any, for the interest payable on any Registered Security on any Interest Payment Date, or the method by which such date or dates shall be determined, whether and under what circumstances Additional Amounts on such Securities or any of them shall be payable, the notice, if any, to Holders regarding the determination of interest on a floating rate Security and the manner of giving such notice, and the basis upon which interest shall be calculated if other than on the basis of a 360-day year of twelve 30-day months;

(5) the place or places, if any, other than or in addition to the Borough of Manhattan, New York, New York where the principal of (and premium, if any) and interest, if any, on Securities of the series shall be payable, where any Registered Securities of the series may be surrendered for registration of transfer, where Securities of the series may be surrendered for exchange, where Securities of the series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable and, if different than the location specified in Section 105, the place or places where notices or demands to or upon the Company in respect of the Securities of the series and this Indenture may be served;

 

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(6) the period or periods within which, the price or prices at which, the Currency in which, and other terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company, if the Company is to have that option;

(7) the obligation, if any, of the Company to redeem, repay or purchase Securities of the series pursuant to any sinking fund or analogous provision or at the option of a Holder thereof, and the period or periods within which, the price or prices at which, the Currency in which, and other terms and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;

(8) if other than denominations of $1,000 and any integral multiple thereof, the denomination or denominations in which any Registered Securities of the series shall be issuable and, if other than denominations of $5,000, the denomination or denominations in which any Bearer Securities of the series shall be issuable;

(9) if other than the Trustee, the identity of each Security Registrar and/or Paying Agent;

(10) if other than the principal amount thereof, the portion of the principal amount of Securities of the series that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502 or the method by which such portion shall be determined;

(11) if other than Dollars, the Currency in which payment of the principal of (or premium, if any) or interest, if any, on the Securities of the series shall be payable or in which the Securities of the series shall be denominated and the particular provisions applicable thereto in accordance with, in addition to or in lieu of any of the provisions of Section 312;

(12) whether the amount of payments of principal of (or premium, if any) or interest, if any, on the Securities of the series may be determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on one or more Currencies, commodities, equity indices or other indices), and the manner in which such amounts shall be determined;

(13) whether the principal of (or premium, if any) or interest, if any, on the Securities of the series are to be payable, at the election of the Company or a Holder thereof, in a Currency other than that in which such Securities are denominated or stated to be payable, the period or periods within which (including the Election Date), and the terms and conditions upon which, such election may be made, and the time and manner of determining the exchange rate between the Currency in which such Securities are denominated or stated to be payable and the Currency in which such Securities are to be so payable, in each case in accordance with, in addition to or in lieu of any of the provisions of Section 312;

(14) the designation of the initial Exchange Rate Agent, if any;

(15) the applicability, if any, of Sections 1402 and/or 1403 to the Securities of the series and any provisions in modification of, in addition to or in lieu of any of the provisions of Article Fourteen that shall be applicable to the Securities of the series;

 

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(16) provisions, if any, granting special rights to the Holders of Securities of the series upon the occurrence of such events as may be specified;

(17) any deletions from, modifications of or additions to the Events of Default or covenants (including any deletions from, modifications of or additions to Section 1009) of the Company with respect to Securities of the series, whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein;

(18) whether Securities of the series are to be issuable as Registered Securities, Bearer Securities (with or without coupons) or both, any restrictions applicable to the offer, sale or delivery of Bearer Securities, whether any Securities of the series are to be issuable initially in temporary global form and whether any Securities of the series are to be issuable in permanent global form with or without coupons and, if so, whether beneficial owners of interests in any such permanent global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 305, whether Registered Securities of the series may be exchanged for Bearer Securities of the series (if permitted by applicable laws and regulations), whether Bearer Securities of the series may be exchanged for Registered Securities of such series, and the circumstances under which and the place or places where any such exchanges may be made, and if Securities of the series are to be issuable in global form, the identity of any initial Depositary therefor;

(19) the date as of which any Bearer Securities of the series and any temporary global Security representing Outstanding Securities of the series shall be dated if other than the date of original issuance of the first Security of the series to be issued;

(20) the Person to whom any interest on any Registered Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, the manner in which, or the Person to whom, any interest on any Bearer Security of the series shall be payable, if otherwise than upon presentation and surrender of the coupons appertaining thereto as they severally mature, and the extent to which, or the manner in which, any interest payable on a temporary global Security on an Interest Payment Date will be paid if other than in the manner provided in Section 304;

(21) if Securities of the series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and/or terms of such certificates, documents or conditions;

(22) if the Securities of the series are to be issued upon the exercise of warrants, the time, manner and place for such Securities to be authenticated and delivered;

(23) whether, under what circumstances and the Currency in which the Company will pay Additional Amounts as contemplated by Section 1005 on the Securities of the series to any Holder who is not a United States person (including any modification to the definition of such term) in respect of any tax, assessment or governmental charge and, if so, whether the Company will have the option to redeem such Securities rather than pay such Additional Amounts (and the terms of any such option);

 

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(24) if the Securities of the series are to be convertible into or exchangeable for any debt securities of any Person (including the Company), the terms and conditions upon which such Securities will be so convertible or exchangeable;

(25) if payment of the Securities will be guaranteed by any other Person;

(26) the extent and manner, if any, to which payment on or in respect of the Securities of the series will be senior or will be subordinated to the prior payment of other liabilities and obligations of the Company; and

(27) any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to the series (which terms shall not be inconsistent with the requirements of the Trust Indenture Act or the provisions of this Indenture).

All Securities of any one series and the coupons appertaining to any Bearer Securities of such series shall be substantially identical except, in the case of Registered Securities, as to denomination and except as may otherwise be provided in or pursuant to a Board Resolution (subject to Section 303) and set forth in such Officer’s Certificate or in any such indenture supplemental hereto. The Company may, from time to time, without notice or consent of the Holders, create and issue additional Securities of a series so that such additional Securities may be consolidated and form a single series with the Securities of the same series initially issued by the Company and shall have the same terms as to status, redemption and otherwise as the Securities of the same series originally issued.

If any of the terms of the series are established by action taken pursuant to one or more Board Resolutions, such Board Resolutions shall be delivered to the Trustee at or prior to the delivery of the Officer’s Certificate setting forth the terms of the series.

SECTION 302. Denominations.

The Securities of each series shall be issuable in such denominations as shall be specified as contemplated by Section 301. With respect to Securities of any series denominated in Dollars, in the absence of any such provisions, the Registered Securities of such series, other than Registered Securities issued in global form (which may be of any denomination), shall be issuable in denominations of $1,000 and any integral multiple thereof and the Bearer Securities of such series, other than the Bearer Securities issued in global form (which may be of any denomination), shall be issuable in a denomination of $5,000.

SECTION 303. Execution, Authentication, Delivery and Dating.

The Securities and any coupons appertaining thereto shall be executed on behalf of the Company by its Chairman, its President, its Chief Executive Officer, its Chief Financial Officer or a Vice-President, together with any one of the Corporate Secretary, or Assistant Corporate Secretary, the Treasurer or an Assistant Treasurer. The signature of any of these officers on the Securities or coupons may be the manual or facsimile signatures of the present or any future such authorized officer and may be imprinted or otherwise reproduced on the Securities.

 

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Securities or coupons bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities or coupons.

At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series together with any coupon appertaining thereto, executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Company Order shall authenticate and deliver such Securities; provided , however , that, in connection with its original issuance, no Bearer Security shall be mailed or otherwise delivered to any location in the United States; and provided further , that, unless otherwise specified with respect to any series of Securities pursuant to Section 301, a Bearer Security may be delivered in connection with its original issuance only if the Person entitled to receive such Bearer Security shall have furnished a certificate in the form set forth in Exhibit A-1 to this Indenture, dated no earlier than 15 days prior to the earlier of the date on which such Bearer Security is delivered and the date on which any temporary Security first becomes exchangeable for such Bearer Security in accordance with the terms of such temporary Security and this Indenture. If any Security shall be represented by a permanent global Bearer Security, then, for purposes of this Section and Section 304, the notation of a beneficial owner’s interest therein upon original issuance of such Security or upon exchange of a portion of a temporary global Security shall be deemed to be delivery in connection with its original issuance of such beneficial owner’s interest in such permanent global Security. Except as permitted by Section 306, the Trustee shall not authenticate and deliver any Bearer Security unless all appurtenant coupons for interest then matured have been detached and cancelled. If not all the Securities of any series are to be issued at one time and if the Board Resolution or supplemental indenture establishing such series shall so permit, such Company Order may set forth procedures acceptable to the Trustee for the issuance of such Securities and determining terms of particular Securities of such series such as interest rate, stated maturity, date of issuance and date from which interest shall accrue.

In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to TIA Sections 315(a) through 315(d)) shall be fully protected in relying upon, one or more Opinions of Counsel stating:

(a) if the form of such Securities has been established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto as permitted by Section 201, that such form has been established in conformity with the provisions of this Indenture;

(b) if the terms of such Securities have been established by or pursuant to one or more Board Resolutions or established in one or more indentures supplemental hereto as permitted by Section 301, that such terms have been established in conformity with the provisions of this Indenture; and

 

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(c) that such Securities, together with any coupons appertaining thereto, when completed by appropriate insertions and executed and delivered by the Company to the Trustee for authentication in accordance with this Indenture, authenticated and delivered by the Trustee in accordance with this Indenture and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute the legal, valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equitable principles.

Notwithstanding the provisions of Section 301 and of the preceding two paragraphs, if not all the Securities of any series are to be issued at one time, it shall not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 301 or the Company Order and Opinion of Counsel otherwise required pursuant to the preceding two paragraphs prior to or at the time of issuance of each Security, but such documents shall be delivered prior to or at the time of issuance of the first Security of such series.

The Trustee shall not be required to authenticate and deliver any such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.

Each Registered Security shall be dated the date of its authentication and each Bearer Security shall be dated as of the date specified as contemplated by Section 301.

No Security or coupon shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein duly executed by the Trustee by manual signature of an authorized officer, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 310 together with a written statement (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never entitle a Holder to the benefits of this Indenture.

SECTION 304. Temporary Securities.

Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form or, if authorized, in bearer form with one or more coupons or without coupons, and with such appropriate insertions, omissions, substitutions and other variations as conclusively the officers executing such Securities may determine, as

 

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conclusively evidenced by their execution of such Securities. Such temporary Securities may be in global form.

Except in the case of temporary Securities in global form (which shall be exchanged in accordance with the provisions of the following paragraphs), if temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series (accompanied by any unmatured coupons appertaining thereto), the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations; provided , however , that no definitive Bearer Security shall be delivered in exchange for a temporary Registered Security; and provided further , that a definitive Bearer Security shall be delivered in exchange for a temporary Bearer Security only in compliance with the conditions set forth in Section 303. Until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.

If temporary Securities of any series are issued in global form, any such temporary global Security shall, unless otherwise provided therein, be delivered to the London, England office of a depositary or common depositary (the “ Common Depositary ”) or the Depositary, as applicable, for the benefit of Euroclear and Clearstream, for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they may direct).

Without unnecessary delay but in any event not later than the date specified in, or determined pursuant to the terms of, any such temporary global Security (the “ Exchange Date ”), the Company shall deliver to the Trustee definitive Securities, in aggregate principal amount equal to the principal amount of such temporary global Security, executed by the Company. On or after the Exchange Date such temporary global Security shall be surrendered by the Common Depositary to the Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities without charge and the Trustee shall authenticate and deliver, in exchange for each portion of such temporary global Security, an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such temporary global Security to be exchanged. The definitive Securities to be delivered in exchange for any such temporary global Security shall be in bearer form, registered form, permanent global bearer form or permanent global registered form, or any combination thereof, as specified as contemplated by Section 301, and, if any combination thereof is so specified, as requested by the beneficial owner thereof; provided , however , that, unless otherwise specified in such temporary global Security, upon such presentation by the Common Depositary, such temporary global Security is accompanied by a certificate dated the Exchange Date or a subsequent date and signed by Euroclear as to the portion of such temporary global Security held for its account then to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by Clearstream as to the portion of such temporary global Security held for its account then to be exchanged, each in the form set forth in Exhibit A-2 to this Indenture (or in such other form as may be established

 

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pursuant to Section 301); and provided further , that definitive Bearer Securities shall be delivered in exchange for a portion of a temporary global Security only in compliance with the requirements of Section 303.

Unless otherwise specified in such temporary global Security, the interest of a beneficial owner of Securities of a series in a temporary global Security shall be exchanged for definitive Securities of the same series and of like tenor following the Exchange Date when the account holder instructs Euroclear or Clearstream, as the case may be, to request such exchange on his behalf and delivers to Euroclear or Clearstream, as the case may be, a certificate in the form set forth in Exhibit A-1 to this Indenture (or in such other form as may be established pursuant to Section 301), dated no earlier than 15 days prior to the Exchange Date, copies of which certificate shall be available from the offices of Euroclear and Clearstream, the Trustee, any Authenticating Agent appointed for such series of Securities and each Paying Agent. Unless otherwise specified in such temporary global Security, any such exchange shall be made free of charge to the beneficial owners of such temporary global Security, except that a Person receiving definitive Securities must bear the cost of insurance, postage, transportation and the like in the event that such Person does not take delivery of such definitive Securities in person at the offices of Euroclear or Clearstream. Definitive Securities in bearer form to be delivered in exchange for any portion of a temporary global Security shall be delivered only outside the United States.

Until exchanged in full as hereinabove provided, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder, except that, unless otherwise specified as contemplated by Section 301, interest payable on a temporary global Security on an Interest Payment Date for Securities of such series occurring prior to the applicable Exchange Date shall be payable to Euroclear and Clearstream on such Interest Payment Date upon delivery by Euroclear and Clearstream to the Trustee of a certificate or certificates in the form set forth in Exhibit A-2 to this Indenture (or in such other form as may be established pursuant to Section 301), for credit without further interest thereon on or after such Interest Payment Date to the respective accounts of the Persons who are the beneficial owners of such temporary global Security on such Interest Payment Date and who have each delivered to Euroclear or Clearstream, as the case may be, a certificate dated no earlier than 15 days prior to the Interest Payment Date occurring prior to such Exchange Date in the form set forth in Exhibit A-1 to this Indenture (or in such other form as may be established pursuant to Section 301). Notwithstanding anything to the contrary herein contained, the certifications made pursuant to this paragraph shall satisfy the certification requirements of the preceding two paragraphs of this Section and of the third paragraph of Section 303 of this Indenture and the interests of the Persons who are the beneficial owners of the temporary global Security with respect to which such certification was made will be exchanged for definitive Securities of the same series and of like principal amount and tenor and evidencing the same indebtedness on the Exchange Date or the date of certification if such date occurs after the Exchange Date, without further act or deed by such beneficial owners. Except as otherwise provided in this paragraph, no payments of principal (or premium, if any) or interest, if any, owing with respect to a beneficial interest in a temporary global Security will be made unless and until such interest in such temporary global Security shall have been exchanged for an interest in a definitive Security. Any interest so received by Euroclear and Clearstream and not paid as herein provided shall be returned to the Trustee immediately prior to the expiration of two years after such Interest Payment Date in order to be repaid to the Company in accordance with Section 1003.

 

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SECTION 305. Registration, Registration of Transfer and Exchange.

The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register for each series of Securities (the registers maintained in the Corporate Trust Office of the Trustee and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “ Security Register ”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and of transfers of Registered Securities. The Security Register shall be in written form or any other form capable of being converted into written form within a reasonable time. At all reasonable times, the Security Register shall be open to inspection by the Trustee. The Trustee is hereby initially appointed as security registrar (the “ Security Registrar ”) for the purpose of registering Registered Securities and transfers of Registered Securities as herein provided. The Company shall have the right to remove and replace from time to time the Security Registrar for any series of Securities; provided that no such removal or replacement shall be effective until a successor Security Registrar with respect to such series of Registered Securities shall have been appointed by the Company and shall have accepted such appointment by the Company. In the event that the Trustee shall not be or shall cease to be the Security Registrar with respect to a series of Securities, it shall have the right to examine the Security Register for such series at all reasonable times. There shall be only one Security Register for such series of Securities.

Upon surrender for registration of transfer of any Registered Security of any series at the office or agency in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee, one or more new Registered Securities of the same series, of any authorized denominations and of a like principal amount and tenor and evidencing the same indebtedness.

At the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series, of any authorized denomination and of a like principal amount and tenor and evidencing the same indebtedness, upon surrender of the Registered Securities to be exchanged at such office or agency. Whenever any Registered Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Registered Securities which the Holder making the exchange is entitled to receive. Unless otherwise specified with respect to any series of Securities as contemplated by Section 301, Bearer Securities may not be issued in exchange for Registered Securities.

If (but only if) expressly permitted in or pursuant to the applicable Board Resolution and (subject to Section 303) set forth in the applicable Officer’s Certificate, or in any indenture supplemental hereto, delivered as contemplated by Section 301, at the option of the Holder, Bearer Securities of any series may be exchanged for Registered Securities of the same series of any authorized denomination and of a like principal amount and tenor and evidencing the same indebtedness, upon surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons and all matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon or coupons or matured coupon or coupons in default, any such permitted exchange may be effected if the Bearer Securities are accompanied by payment in funds acceptable to the Company in an amount equal to the face amount of such missing coupon or coupons, or the

 

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surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there is furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to any Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided , however , that, except as otherwise provided in Section 1002, interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or agency in a permitted exchange for a Registered Security of the same series and like tenor after the close of business at such office or agency on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed date for payment, as the case may be, and interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture.

Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.

Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 301, any permanent global Security shall be exchangeable only as provided in this paragraph. If any beneficial owner of an interest in a permanent global Security is entitled to exchange such interest for Securities of such series and of like principal amount and tenor and evidencing the same indebtedness of another authorized form and denomination, as specified as contemplated by Section 301 and provided that any applicable notice provided in the permanent global Security shall have been given, then without unnecessary delay but in any event not later than the earliest date on which such interest may be so exchanged, the Company shall deliver to the Trustee definitive Securities in aggregate principal amount equal to the principal amount of such beneficial owner’s interest in such permanent global Security, executed by the Company. On or after the earliest date on which such interests may be so exchanged, such permanent global Security shall be surrendered by the Common Depositary or such other Depositary as shall be specified in the Company Order with respect thereto to the Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities without charge, and the Trustee shall authenticate and deliver, in exchange for each portion of such permanent global Security, an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such permanent global Security to be exchanged which, unless the Securities of the series are not issuable both as Bearer Securities and as Registered Securities, as specified as contemplated by Section 301, shall be in the form of Bearer Securities or Registered Securities, or any combination thereof, as shall be specified by the beneficial owner thereof; provided , however , that no such exchanges may occur during a period beginning at the opening of business 15 days before any selection of Securities to be redeemed and ending on the relevant Redemption Date if the Security for which exchange is requested may be among those selected for redemption; and provided further , that no

 

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Bearer Security delivered in exchange for a portion of a permanent global Security shall be mailed or otherwise delivered to any location in the United States. If a Registered Security is issued in exchange for any portion of a permanent global Security after the close of business at the office or agency where such exchange occurs on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but will be payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the Person to whom interest in respect of such portion of such permanent global Security is payable in accordance with the provisions of this Indenture.

If at any time the Depositary for Securities of a series notifies the Company that it is unwilling, unable or no longer qualifies to continue as Depositary for Securities of such series or if at any time the Depositary for Securities for such series shall no longer be registered or in good standing under the Exchange Act, or other applicable statute or regulation, the Company shall appoint a successor Depositary with respect to the Securities for such series. If a successor to the Depositary for Securities is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, and the Trustee, as Security Registrar, has received a written request from the Depositary or a participant in the Depositary in accordance with the Depositary’s customary procedures to issue Securities in definitive form to such participant or other beneficial owner specified by such participant to the Trustee in writing, the Depositary shall no longer continue as Depositary with respect to the Securities for such series and the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver individual Securities of such series in certificated, fully registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the global Security or Securities representing such series in exchange for such global Security or Securities.

The Company may at any time and in its sole discretion determine that the Securities of any series issued in the form of one or more global Securities shall no longer be represented by such global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver Securities of such series in definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the global Security or Securities representing such series in exchange for such global Security or Securities.

Upon the exchange of a global Security for Securities in definitive registered form, such global Security shall be cancelled by the Trustee. Securities issued in exchange for a global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee in writing. The Trustee shall deliver such Securities to the persons in whose names such Securities are so registered.

 

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All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.

Every Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Security Registrar) be duly endorsed, or be accompanied by a written instrument of transfer, in form satisfactory to the Company and the Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.

No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.

The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the selection for redemption of Securities of that series under Section 1103 or 1203 and ending at the close of business on (A) if Securities of the series are issuable only as Registered Securities, the day of the mailing of the relevant notice of redemption and (B) if Securities of the series are issuable as Bearer Securities, the day of the first publication of the relevant notice of redemption or, if Securities of the series are also issuable as Registered Securities and there is no publication, the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Registered Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part, or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of that series and like tenor, provided that such Registered Security shall be immediately surrendered for redemption, or (iv) to issue, register the transfer of or exchange any Security which has been surrendered for repayment at the option of the Holder, except the portion, if any, of such Security not to be so repaid.

SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.

If any mutilated Security or a Security with a mutilated coupon appertaining to it is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like principal amount and tenor and evidencing the same indebtedness and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to the surrendered Security, or, in case any such mutilated Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, with coupons corresponding to the coupons, if any, appertaining to the surrendered Security, pay such Security or coupon.

If there shall be delivered to the Company and to the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security or coupon and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security or

 

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coupon has been acquired by a protected purchaser (as defined in Article 8 of the UCC), the Company shall execute and upon Company Order the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security or in exchange for the Security for which a destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed, lost or stolen), a new Security of the same series and of like principal amount and tenor and evidencing the same indebtedness and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon appertains.

Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, with coupons corresponding to the coupons, if any, appertaining to such mutilated, destroyed, lost or stolen Security or to the Security to which such mutilated, destroyed, lost or stolen coupon appertains, pay such Security or coupon; provided , however , that payment of principal of (and premium, if any) and interest, if any, on Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at an office or agency located outside the United States and, unless otherwise specified as contemplated by Section 301, any interest on Bearer Securities shall be payable only upon presentation and surrender of the coupons appertaining thereto.

Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

Every new Security of any series with its coupons, if any, issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Security or in exchange for a Security to which a mutilated, destroyed, lost or stolen coupon appertains, shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security and its coupons, if any, or the mutilated, destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and the Holders of such Security shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series and their coupons, if any, duly issued hereunder.

The provisions of this Section, as amended or supplemented pursuant to this Indenture with respect to particular Securities or generally, are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons.

SECTION 307. Payment of Principal and Interest; Interest Rights Preserved; Optional Interest Reset.

(a) Unless otherwise provided as contemplated by Section 301 with respect to any series of Securities, interest, if any, on any Registered Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest at the office or agency of the Company maintained for such purpose pursuant to Section 1002; provided , however , that each installment of the principal of (and premium, if any, on) and interest,

 

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if any, on any Registered Security may at the Company’s option be paid by (i) mailing a check for such interest, payable to or upon the written order of the Person entitled thereto pursuant to Section 309, to the address of such Person as it appears on the Security Register or (ii) wire transfer to an account of the person entitled to receive such payment located in the United States maintained by the payee of a Holder of $5,000,000 or more in aggregate principal amount of the Securities of such series (with wire transfer instructions provided to the Trustee not less than 15 days prior to payment of interest by wire transfer); provided further , that principal paid in relation to any Security redeemed at the option of the Company pursuant to Article Eleven, or paid at Maturity, shall be paid to the Holder of such Security only upon presentation and surrender of such Security to such office or agency referred to in this Section 307(a).

Unless otherwise provided as contemplated by Section 301 with respect to the Securities of any series, payment of interest, if any, may be made, in the case of a Bearer Security, by transfer to an account located outside the United States maintained by the payee.

Unless otherwise provided as contemplated by Section 301, every permanent global Security will provide that interest, if any, payable on any Interest Payment Date will be paid to each of Euroclear and Clearstream with respect to that portion of such permanent global Security held for its account by the Common Depositary, for the purpose of permitting each of Euroclear and Clearstream to credit the interest, if any, received by it in respect of such permanent global Security to the accounts of the beneficial owners thereof.

Any interest on any Registered Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the Holder on the relevant Regular Record Date, and such defaulted interest and, if applicable, interest on such defaulted interest (to the extent lawful) at the rate specified in the Securities of such series (such defaulted interest and, if applicable, interest thereon herein collectively called “Defaulted Interest ”) may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:

(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Registered Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the

 

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proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given in the manner provided in Section 106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so given, such Defaulted Interest shall be paid to the Persons in whose name the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2).

(2) The Company may make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.

(b) The provisions of this Section 307(b) may be made applicable to any series of Securities pursuant to Section 301 (with such modifications, additions or substitutions as may be specified pursuant to such Section 301). The interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) on any Security of such series may be reset by the Company on the date or dates specified on the face of such Security (each an “ Optional Reset Date ”). The Company may exercise such option with respect to such Security by notifying the Trustee of such exercise at least 50 but not more than 60 days prior to an Optional Reset Date for such Note. Not later than 40 days prior to each Optional Reset Date, the Trustee shall transmit, in the manner provided for in Section 106, to the Holder of any such Security a notice (the “ Reset Notice ”) indicating whether the Company has elected to reset the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable), and if so (i) such new interest rate (or such new spread or spread multiplier, if applicable) and (ii) the provisions, if any, for redemption during the period from such Optional Reset Date to the next Optional Reset Date or if there is no such next Optional Reset Date, to the Stated Maturity Date of such Security (each such period a “ Subsequent Interest Period ”), including the date or dates on which or the period or periods during which and the price or prices at which such redemption may occur during the Subsequent Interest Period.

Notwithstanding the foregoing, not later than 20 days prior to the Optional Reset Date, the Company may, at its option, revoke the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) provided for in the Reset Notice and establish an interest rate (or a spread or spread multiplier used to calculate such interest rate, if applicable) that is higher than the interest rate (or the spread or spread multiplier, if applicable) provided for in the Reset Notice, for the Subsequent Interest Period by causing the Trustee to transmit, in the manner provided for in Section 106, notice of such higher interest rate (or such higher spread or spread multiplier, if applicable) to the Holder of such Security. Such notice shall be irrevocable. All Securities with respect to which the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) is reset on an Optional Reset Date, and with respect to which the Holders of such Securities have not tendered such Securities for repayment (or have

 

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validly revoked any such tender) pursuant to the next succeeding paragraph, will bear such higher interest rate (or such higher spread or spread multiplier, if applicable).

The Holder of any such Security will have the option to elect repayment by the Company of the principal of such Security on each Optional Reset Date at a price equal to the principal amount thereof plus interest accrued to such Optional Reset Date. In order to obtain repayment on an Optional Reset Date, the Holder must follow the procedures set forth in Article Thirteen for repayment at the option of Holders except that the period for delivery or notification to the Trustee shall be at least 25 but not more than 35 days prior to such Optional Reset Date and except that, if the Holder has tendered any Security for repayment pursuant to the Reset Notice, the Holder may, by written notice to the Trustee, revoke such tender or repayment until the close of business on the tenth day before such Optional Reset Date.

Subject to the foregoing provisions of this Section and Section 305, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

SECTION 308. Optional Extension of Stated Maturity.

The provisions of this Section 308 may be made applicable to any series of Securities pursuant to Section 301 (with such modifications, additions or substitutions as may be specified pursuant to such Section 301). The Stated Maturity of any Security of such series may be extended at the option of the Company for the period or periods specified on the face of such Security (each an “ Extension Period ”) up to but not beyond the date (the “ Final Maturity ”) set forth on the face of such Security. The Company may exercise such option with respect to any Security by notifying the Trustee of such exercise at least 50 but not more than 60 days prior to the Stated Maturity of such Security in effect prior to the exercise of such option (the “ Original Stated Maturity ”). If the Company exercises such option, the Trustee shall transmit, in the manner provided for in Section 106, to the Holder of such Security not later than 40 days prior to the Original Stated Maturity a notice (the “ Extension Notice ”) indicating (i) the election of the Company to extend the Stated Maturity, (ii) the new Stated Maturity, (iii) the interest rate, if any, applicable to the Extension Period and (iv) the provisions, if any, for redemption during such Extension Period. Upon the Trustee’s transmittal of the Extension Notice, the Stated Maturity of such Security shall be extended automatically and, except as modified by the Extension Notice and as described in the next paragraph, such Security will have the same terms as prior to the transmittal of such Extension Notice.

Notwithstanding the foregoing, not later than 20 days before the Original Stated Maturity of such Security, the Company may, at its option, revoke the interest rate provided for in the Extension Notice and establish a higher interest rate for the Extension Period by causing the Trustee to transmit, in the manner provided for in Section 106, notice of such higher interest rate to the Holder of such Security. Such notice shall be irrevocable. All Securities with respect to which the Stated Maturity is extended will bear such higher interest rate.

If the Company extends the Maturity of any Security, the Holder will have the option to elect repayment of such Security by the Company on the Original Stated Maturity at a price equal to the principal amount thereof, plus interest accrued to such date. In order to obtain repayment on the Original Stated Maturity once the Company has extended the Maturity thereof,

 

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the Holder must follow the procedures set forth in Article Thirteen for repayment at the option of Holders, except that the period for delivery or notification to the Trustee shall be at least 25 but not more than 35 days prior to the Original Stated Maturity and except that, if the Holder has tendered any Security for repayment pursuant to an Extension Notice, the Holder may by written notice to the Trustee revoke such tender for repayment until the close of business on the tenth day before the Original Stated Maturity.

SECTION 309. Persons Deemed Owners.

Prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Sections 305 and 307) interest, if any, on such Security and for all other purposes whatsoever (except for determining whether the payment of Additional Amounts is required), whether or not such Security be overdue, and none of the Company, the Trustee or any agent of the Company or the Trustee shall be affected by notice to the contrary.

Title to any Bearer Security and any coupons appertaining thereto shall pass by delivery. The Company, the Trustee and any agent of the Company or the Trustee may treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner of such Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Security or coupons be overdue, and none of the Company, the Trustee or any agent of the Company or the Trustee shall be affected by notice to the contrary.

The Depositary for Securities may be treated by the Company, the Trustee, and any agent of the Company or the Trustee as the owner of such global Security for all purposes whatsoever (except for determining whether the payment of Additional Amounts is required). None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Security in global form or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

Notwithstanding anything to the contrary in this Indenture, the Depositary or its nominee, as a Holder of a global Security, may grant proxies and otherwise authorize any Person (including owners of beneficial interests in the Securities) to take any action that the Depositary or its nominee, as a Holder of a global Security, is entitled to take under this Indenture or the Securities, provided further that, with respect to any global Security, nothing herein shall prevent the Company, the Trustee, or any agent of the Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by any Depositary, as a Holder, with respect to such global Security or impair, as between such Depositary and owners of beneficial interests in such global Security, the operation of customary practices governing the exercise of the rights of such Depositary (or its nominee) as Holder of such global Security.

SECTION 310. Cancellation.

All Securities and coupons surrendered for payment, redemption, repayment at the option of the Holder, registration of transfer or exchange or for credit against any current or

 

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future sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All Securities and coupons so delivered to the Trustee shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. If the Company shall so acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are surrendered to the Trustee for cancellation. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures and certification of their disposal delivered to the Company unless by Company Order the Company shall direct that cancelled Securities be returned to it.

SECTION 311. Computation of Interest.

Except as otherwise specified as contemplated by Section 301 with respect to any Securities, interest, if any, on the Securities shall be computed on the basis of a 360 day year of twelve 30 day months. Solely for the purposes of the Interest Act (Canada), the yearly rate of interest to which interest calculated under a Security for a period of less than one year on the basis of a year of 360 days consisting of twelve 30 day periods (the “ calculation period ”) is equivalent is such rate of interest multiplied by a fraction of which (i) the numerator is the product of (A) the actual number of days in the year commencing on the first day of such period, multiplied by (B) the sum of (y) the product of 30 multiplied by the number of complete months elapsed in such period and (z) the actual number of days elapsed in any incomplete month in such period; and (ii) the denominator is the product of (A) 360 multiplied by (B) the actual number of days in such period.

SECTION 312. Currency and Manner of Payments in Respect of Securities.

(a) With respect to Registered Securities of any series not permitting the election provided for in paragraph (b) below or the Holders of which have not made the election provided for in paragraph (b) below, and with respect to Bearer Securities of any series, except as provided in paragraph (d) below, payment of the principal of (and premium, if any) and interest, if any, on any Registered or Bearer Security of such series will be made in the Currency in which such Registered Security or Bearer Security, as the case may be, is payable. The provisions of this Section 312 may be modified or superseded with respect to any Securities pursuant to Section 301.

(b) It may be provided pursuant to Section 301 with respect to Registered Securities of any series that Holders shall have the option, subject to paragraphs (d) and (e) below, to receive payments of principal of (or premium, if any) or interest, if any, on such Registered Securities in any of the Currencies which may be designated for such election by delivering to the Trustee a written election with signature guarantees and in the applicable form established pursuant to Section 301, not later than the close of

 

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business on the Election Date immediately preceding the applicable payment date. If a Holder so elects to receive such payments in any such Currency, such election will remain in effect for such Holder or any transferee of such Holder until changed by such Holder or such transferee by written notice to the Trustee (but any such change must be made not later than the close of business on the Election Date immediately preceding the next payment date to be effective for the payment to be made on such payment date and no such change of election may be made with respect to payments to be made on any Registered Security of such series with respect to which an Event of Default has occurred or with respect to which the Company has deposited funds pursuant to Article Four or Fourteen or with respect to which a notice of redemption has been given by the Company or a notice of option to elect repayment has been sent by such Holder or such transferee). Any Holder of any such Registered Security who shall not have delivered any such election to the Trustee not later than the close of business on the applicable Election Date will be paid the amount due on the applicable payment date in the relevant Currency as provided in Section 312(a). The Trustee shall notify the Exchange Rate Agent as soon as practicable after the Election Date of the aggregate principal amount of Registered Securities for which Holders have made such written election.

(c) Unless otherwise specified pursuant to Section 301, if the election referred to in paragraph (b) above has been provided for pursuant to Section 301, then, unless otherwise specified pursuant to Section 301, not later than the fourth Business Day after the Election Date for each payment date for Registered Securities of any series, the Exchange Rate Agent will deliver to the Company a written notice specifying, in the Currency in which Registered Securities of such series are payable, the respective aggregate amounts of principal of (and premium, if any) and interest, if any, on the Registered Securities to be paid on such payment date, specifying the amounts in such Currency so payable in respect of the Registered Securities as to which the Holders of Registered Securities of such series shall have elected to be paid in another Currency as provided in paragraph (b) above. If the election referred to in paragraph (b) above has been provided for pursuant to Section 301 and if at least one Holder has made such election, then, unless otherwise specified pursuant to Section 301, on the second Business Day preceding such payment date the Company will deliver to the Trustee for such series of Registered Securities an Exchange Rate Officer’s Certificate in respect of the Dollar or Foreign Currency payments to be made on such payment date. Unless otherwise specified pursuant to Section 301, the Dollar or Foreign Currency amount receivable by Holders of Registered Securities who have elected payment in a Currency as provided in paragraph (b) above shall be determined by the Company on the basis of the applicable Market Exchange Rate in effect on the third Business Day (the “ Valuation Date ”) immediately preceding each payment date, and such determination shall be conclusive and binding for all purposes, absent manifest error.

(d) If a Conversion Event occurs with respect to a Foreign Currency in which any of the Securities are denominated or payable other than pursuant to an election provided for pursuant to paragraph (b) above, then with respect to each date for the payment of principal of (and premium, if any) and interest, if any, on the applicable Securities denominated or payable in such Foreign Currency occurring after the last date on which such Foreign Currency was used (the “ Conversion Date ”), the Dollar shall be the Currency of payment for use on each such payment date. Unless otherwise specified

 

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pursuant to Section 301, the Dollar amount to be paid by the Company to the Trustee and by the Trustee or any Paying Agent to the Holders of such Securities with respect to such payment date shall be the Dollar Equivalent of the Foreign Currency as determined by the Exchange Rate Agent in the manner provided in paragraph (f) below.

(e) Unless otherwise specified pursuant to Section 301, if the Holder of a Registered Security denominated in any Currency shall have elected to be paid in another Currency as provided in paragraph (b) above, and a Conversion Event occurs with respect to such elected Currency, such Holder shall receive payment in the Currency in which payment would have been made in the absence of such election; and if a Conversion Event occurs with respect to the Currency in which payment would have been made in the absence of such election, such Holder shall receive payment in Dollars as provided in paragraph (d) above.

(f) The “ Dollar Equivalent of the Foreign Currency ” shall be determined by the Exchange Rate Agent and shall be obtained for each subsequent payment date by converting the specified Foreign Currency into Dollars at the Market Exchange Rate on the Conversion Date.

(g) For purposes of this Section 312, “ Election Date ” shall mean the date for any series of Registered Securities as specified pursuant to clause (13) of Section 301 by which the written election referred to in paragraph (b) above may be made.

All decisions and determinations of the Exchange Rate Agent regarding the Dollar Equivalent of the Foreign Currency and the Market Exchange Rate as specified above shall be in its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Company, the Trustee and all Holders of such Securities denominated or payable in the relevant Currency. The Exchange Rate Agent shall promptly give written notice to the Company and the Trustee of any such decision or determination.

In the event that the Company determines in good faith that a Conversion Event has occurred with respect to a Foreign Currency, the Company will immediately give written notice thereof to the Trustee and to the Exchange Rate Agent (and the Trustee will promptly thereafter give notice in the manner provided for in Section 106 to the affected Holders) specifying the Conversion Date.

The Trustee shall be fully justified and protected in relying and acting upon information received by it from the Company and the Exchange Rate Agent and shall not otherwise have any duty or obligation to determine the accuracy or validity of such information independent of the Company or the Exchange Rate Agent.

SECTION 313. Appointment and Resignation of Successor Exchange Rate Agent.

(a) Unless otherwise specified pursuant to Section 301, if and so long as the Securities of any series (i) are denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long as it is required under any other provision of this Indenture, then the Company will maintain with respect to each such series of Securities,

 

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or as so required, at least one Exchange Rate Agent. The Company will cause the Exchange Rate Agent to make the necessary foreign exchange determinations at the time and in the manner specified pursuant to Section 301 for the purpose of determining the applicable rate of exchange and, if applicable, for the purpose of converting the issued Currency into the applicable payment Currency for the payment of principal (and premium, if any) and interest, if any, pursuant to Section 312.

(b) The Company shall have the right to remove and replace from time to time the Exchange Rate Agent for any series of Securities. No resignation of the Exchange Rate Agent and no appointment of a successor Exchange Rate Agent pursuant to this Section shall become effective until the acceptance of appointment by the successor Exchange Rate Agent as evidenced by a written instrument delivered to the Company and the Trustee.

(c) If the Exchange Rate Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Exchange Rate Agent for any cause with respect to the Securities of one or more series, the Company, by or pursuant to a Board Resolution, shall promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to the Securities of that or those series (it being understood that any such successor Exchange Rate Agent may be appointed with respect to the Securities of one or more or all of such series and that, unless otherwise specified pursuant to Section 301, at any time there shall only be one Exchange Rate Agent with respect to the Securities of any particular series that are originally issued by the Company on the same date and that are initially denominated and/or payable in the same Currency).

ARTICLE FOUR

SATISFACTION AND DISCHARGE

SECTION 401. Satisfaction and Discharge of Indenture.

This Indenture shall upon a Company Request cease to be of further effect with respect to any series of Securities specified in such Company Request (except as to any surviving rights of registration of transfer or exchange of Securities of such series expressly provided for herein or pursuant hereto and any right to receive Additional Amounts as contemplated by Section 1005) and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series when

(1) either

(A) all Securities of such series theretofore authenticated and delivered and all coupons, if any, appertaining thereto (other than (i) coupons appertaining to Bearer Securities surrendered for exchange for Registered Securities and maturing after such exchange, whose surrender is not required or has been waived as provided in Section 305, (ii) Securities and coupons of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306, (iii) coupons appertaining to Securities called for redemption and maturing after the relevant Redemption Date, whose surrender has been waived as provided in Section 1106, and (iv) Securities and coupons of such series for

 

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whose payment money has theretofore been deposited in trust with the Trustee or any Paying Agent or segregated and held in trust by the Company and thereafter repaid to the Company, as provided in Section 1003) have been delivered to the Trustee for cancellation; or

(B) (1) all Securities of such series and, in the case of (i) or (ii) below, any coupons appertaining thereto not theretofore delivered to the Trustee for cancellation

(i) have become due and payable, or

(ii) will become due and payable at their Stated Maturity within one year, or

(iii) if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.

and the Company, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose an amount in the Currency in which the Securities of such series are payable, sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest, if any, to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;

(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company in respect of such series; and

(3) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with.

Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 607, the obligations of the Trustee to any Authenticating Agent under Section 612 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003 shall survive.

SECTION 402. Application of Trust Money.

Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Securities, the coupons and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and

 

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premium, if any) and interest, if any, for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.

ARTICLE FIVE

REMEDIES

SECTION 501. Events of Default.

Event of Default ”, wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), unless such event is specifically deleted or modified in or pursuant to a supplemental indenture, Board Resolution or Officer’s Certificate establishing the terms of such series pursuant to Section 301 of this Indenture:

(1) default in the payment of any interest on any Security of that series, or any related coupon, when such interest or coupon becomes due and payable, and continuance of such default for a period of 30 days; or

(2) default in the payment of the principal of (or premium, if any, on) any Security of that series when it becomes due and payable; or

(3) default in the performance, or breach, of any covenant or warranty of the Company in this Indenture in respect of the Securities of that series (other than a covenant or warranty a default in the performance of which, or the breach of which, is specifically dealt with elsewhere in this Indenture), and continuance of such default or breach for a period of 60 days after the receipt by the Company of written notice specifying such default or breach, and requiring it to be remedied and stating that such notice is a “ Notice of Default ” hereunder (i) to the Company (attention of the General Counsel to the Company via facsimile, with a hard copy then sent, by registered or certified mail) by the Trustee or (ii) to the Company (in the same manner) and the Trustee by the Holders of at least 25% in principal amount of all Outstanding Securities of any series affected thereby; or

(4) if an event of default (as defined in any indenture or instrument under which the Company or any of its Restricted Subsidiaries has at the time of this Indenture or shall thereafter have outstanding any indebtedness for borrowed money) shall happen and be continuing, or the Company or any of its Restricted Subsidiaries shall have failed to pay principal amounts with respect to such indebtedness at maturity and such event of default or failure to pay shall result in such indebtedness being declared due and payable or otherwise being accelerated, in either event so that an amount in excess of the greater of $75,000,000 and 2 % of the Shareholders’ Equity of the Company shall be or become due and payable upon such declaration or otherwise accelerated prior to the date on which the same would otherwise have become due and payable (the “ Accelerated Indebtedness ”), and such acceleration shall not be rescinded or annulled, or such event of default or failure to pay under such indenture or instrument shall not be remedied or

 

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cured, whether by payment or otherwise, or waived by the holders of such Accelerated Indebtedness, then (a) if the Accelerated Indebtedness shall be as a result of an event of default which is not related to the failure to pay principal or interest on the terms, at the times and on the conditions set out in any such indenture or instrument, it shall not be considered an Event of Default for purposes of this Indenture until 30 days after such indebtedness has been accelerated, or (b) if the Accelerated Indebtedness shall occur as a result of such failure to pay principal or interest or as a result of an event of default which is related to the failure to pay principal or interest on the terms, at the times, and on the conditions set out in any such indenture or instrument, then (i) if such Accelerated Indebtedness is, by its terms, Non-Recourse Debt to the Company or its Restricted Subsidiaries, it shall not be considered an Event of Default for purposes of this Indenture; or (ii) if such Accelerated Indebtedness is recourse to the Company or its Restricted Subsidiaries, any requirement in connection with such failure to pay or event of default for the giving of notice or the lapse of time or the happening of any further condition, event or act under such other indenture or instrument in connection with such failure to pay principal or an event of default shall be applicable together with an additional seven days before being considered an Event of Default for purposes of this Indenture; or

(5) the entry of a decree or order by a court having jurisdiction in the premises adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) or any other applicable insolvency law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days; or

(6) the institution by the Company of proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under the Bankruptcy and Insolvency Act (Canada), the Companies Creditors Arrangement Act (Canada) or any other applicable insolvency law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due; or

(7) any other Event of Default provided with respect to Securities of that series.

SECTION 502. Acceleration of Maturity; Rescission and Annulment.

If an Event of Default described in Section 501 with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of such affected series may, subject to any subordination provisions thereof, declare the principal amount

 

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(or, if the Securities of that series are Original Issue Discount Securities or Indexed Securities, such portion of the principal amount as may be specified in the terms of that series) of all of the Securities of that series, and all accrued and unpaid interest thereon to the date of such acceleration, to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified portion thereof) shall become immediately due and payable.

At any time after such a declaration of acceleration with respect to Securities of any series (or of all series, as the case may be) has been made, but before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided in this Article, the Holders of a majority in principal amount of the Outstanding Securities of that series (or of all series, as the case may be), by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:

(1) the Company has paid or deposited with the Trustee a sum sufficient to pay in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)):

(A) all overdue interest, if any, on all Outstanding Securities of that series (or of all series, as the case may be) and any related coupons,

(B) all unpaid principal of (and premium, if any) any Outstanding Securities of that series (or of all series, as the case may be) which has become due otherwise than by such declaration of acceleration, and interest on such unpaid principal at the rate or rates prescribed therefor in such Securities.

(C) to the extent that payment of such interest is lawful, interest on overdue interest, if any, at the rate or rates prescribed therefor in such Securities, and

(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and

(2) all Events of Default with respect to Securities of that series (or of all series, as the case may be), other than the non-payment of amounts of principal of (or premium, if any, on) or interest on Securities of that series (or of all series, as the case may be) which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.

No such rescission shall affect any subsequent default or impair any right consequent thereon.

Notwithstanding the preceding paragraph, in the event of a declaration of acceleration in respect of the Securities because of an Event of Default specified in Section 501(4) shall have occurred and be continuing, such declaration of acceleration shall be automatically annulled if the indebtedness that is the subject of such Event of Default has been discharged or the holders thereof have rescinded their declaration of acceleration in respect of such indebtedness, and written notice of such discharge or rescission, as the case may be, shall

 

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have been given to the Trustee by the Company and countersigned by the holders of such indebtedness or a trustee, fiduciary or agent for such holders, within 30 days after such declaration of acceleration in respect of the Securities, and no other Event of Default has occurred during such 30-day period which has not been cured or waived during such period.

SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.

The Company covenants that if:

(1) default is made in the payment of any installment of interest on any Security and any related coupon when such interest becomes due and payable and such default continues for a period of 30 days, or

(2) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof,

then the Company will, upon demand of the Trustee, pay to the Trustee for the benefit of the Holders of such Securities and coupons, the whole amount then due and payable on such Securities and coupons for principal (and premium, if any) and interest, if any, and interest on any overdue principal (and premium, if any) and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amounts as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.

If an Event of Default with respect to Securities of any series (or of all series, as the case may be) occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series (or of all series, as the case may be) by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.

SECTION 504. Trustee May File Proofs of Claim.

In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or the property of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company

 

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for the payment of overdue principal, premium, if any, or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise.

(1) to file and prove a claim for the whole amount of principal (and premium, if any), or such portion of the principal amount of any series of Original Issue Discount Securities or Indexed Securities as may be specified in the terms of such series, and interest, if any, owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and

(2) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607.

Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

SECTION 505. Trustee May Enforce Claims Without Possession of Securities.

All rights of action and claims under this Indenture or the Securities or coupons may be prosecuted and enforced by the Trustee without the possession of any of the Securities or coupons or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities and coupons in respect of which such judgment has been recovered.

SECTION 506. Application of Money Collected.

Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, if any, upon presentation of the Securities or coupons, or both, as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

First : To the payment of all amounts due the Trustee under Section 607;

 

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Second : To the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest, if any, on the Securities and coupons in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities and coupons for principal (and premium, if any) and interest, if any, respectively; and

Third : The balance, if any, to the Company or to such Person or Persons as the Company instructs in writing.

SECTION 507. Limitation on Suits.

No Holder of any Security of any series or any related coupons shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, the Securities of any series, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:

(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;

(2) the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of that series in the case of any Event of Default described in Section 501, shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

(3) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;

(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and

(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority or more in principal amount of the Outstanding Securities of that series in the case of any Event of Default described in Section 501;

it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Securities of the same series, in the case of any Event of Default described in Section 501, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all Holders of Securities of the same series, in the case of any Event of Default described in Section 501.

SECTION 508. Unconditional Right of Holders to Receive Principal (Premium, if any) and Interest.

Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment, as provided herein (including, if applicable. Article Fourteen) and in such Security, of the principal of (and

 

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premium, if any) and (subject to Section 307) interest, if any, on such Security or payment of such coupon on the respective Stated Maturities expressed in such Security or coupon (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

SECTION 509. Restoration of Rights and Remedies.

If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders of Securities and coupons shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.

SECTION 510. Rights and Remedies Cumulative.

Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities or coupons is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

SECTION 511. Delay or Omission Not Waiver.

No delay or omission of the Trustee or of any Holder of any Security or coupon to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

SECTION 512. Control by Holders.

Subject to Article Six, with respect to the Securities of any series, the Holders of not less than a majority in principal amount of the Outstanding Securities of such series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, relating to or arising under Section 501, provided that in each case

(1) such direction shall not be in conflict with any rule of law or with this Indenture,

(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and

 

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(3) the Trustee need not take any action which might involve it in personal liability or be unjustly prejudicial to the Holders of Securities of such series not consenting.

SECTION 513. Waiver of Past Defaults.

Subject to Section 502, the Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default described in Section 501, and its consequences, except a default

(1) in respect of the payment of the principal of (or premium, if any) or interest, if any, on any Security or any related coupon, or

(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.

Upon any such waiver, any such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.

SECTION 514. Waiver of Stay or Extension Laws.

The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

SECTION 515. Undertaking for Costs.

All parties to this Indenture agree, and each Holder, by acceptance of a Security, shall be deemed to have agreed that, in any suit for the enforcement of any right or remedy under this Indenture, or any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, any court may, in its discretion, require the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided , however , that the provisions of this Section 515 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate Securities representing more than 10% of the aggregate principal amount of the Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of any installment of interest on any Security on or after the Stated Maturity thereof expressed in such Security or for the enforcement of the payment of the principal of such Security at the Stated Maturity therefore.

 

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ARTICLE SIX

THE TRUSTEE

SECTION 601. Notice of Defaults.

Within 90 days after the occurrence of any Default hereunder with respect to the Securities of any series, the Trustee shall transmit in the manner and to the extent provided in TIA Section 313(c), notice of such Default hereunder known to the Trustee, unless such Default shall have been cured or waived; provided , however , that, except in the case of a Default in the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series or in the payment of any sinking fund installment with respect to Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of the Holders of Securities of such series and any related coupons, and so advises the Company in writing; and provided further , that in the case of any Default of the character specified in Section 501(3) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof.

SECTION 602. Certain Duties and Responsibilities of Trustee.

(a) The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred, shall undertake to perform with respect to the Securities of any series, such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants shall be read into this Indenture against the Trustee. If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.

(b) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:

(1) prior to the occurrence of an Event of Default and after the curing or waiving of all such Events of Default that may have occurred:

(i) the duties and obligations of the Trustee with respect to the Securities of any series shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

(ii) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the

 

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Trustee and conforming to the requirements of this Indenture and the Trust Indenture Act;

but in the case of any such certificates or opinions that by any provision hereof or Section 314 of the TIA are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture;

(2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;

(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by them in good faith in accordance with the direction of the Holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this Indenture; and

(4) notwithstanding anything contained herein to the contrary, subject to the provisions of TIA Sections 315(a) through 315(d), the Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

(c) Whether or not therein expressly so provided, except to the extent expressly provided herein to the contrary, every provision of this Indenture relating to the conduct or effecting the liability or affording protection to the Trustee, shall be subject to the provisions of this Section.

SECTION 603. Certain Rights of Trustee.

Subject to the provisions of TIA Sections 315(a) through 315(d):

(1) the Trustee may, in good faith, rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

(2) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;

(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate;

 

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(4) before the Trustee acts or refrains from acting, the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any series or any related coupons pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

(6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney;

(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;

(8) the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; and

(9) except as otherwise specifically provided herein, (i) all references in this Indenture to the Trustee shall be deemed to refer to the Trustee in its capacity as Trustee and in its capacities as Security Registrar, Authenticating Agent and Paying Agent and (ii) every provision of this Indenture relating to the conduct or affecting the liability or offering protection, immunity or indemnity to the Trustee shall be deemed to apply with the same force and effect to the Trustee acting in its capacities as Paying Agent, Authenticating Agent and Security Registrar.

SECTION 604. Trustee Not Responsible for Recitals or Issuance of Securities.

The recitals contained herein and in the Securities, except for the Trustee’s certificates of authentication, and in any coupons shall be taken as the statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or coupons, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Company are true and accurate, subject to the qualifications set forth therein. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.

 

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SECTION 605. May Hold Securities.

The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company or of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and coupons and, subject to TIA Sections 310(b) and 311, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent. A Trustee that has resigned or was removed shall remain subject to TIA Section 311(a).

SECTION 606. Money Held in Trust.

Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.

SECTION 607. Compensation and Reimbursement.

The Company agrees:

(1) to pay to the Trustee from time to time such compensation as the Trustee and the Company shall from time to time agree in writing for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and

(3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense (including, without limitation, the reasonable compensation and the expenses and disbursements of its agents and counsel) incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, the performance of its duties hereunder and/or the exercise of its rights hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.

The obligations of the Company under this Section to compensate the Trustee, to pay or reimburse the Trustee for expenses, disbursements and advances and to indemnify and hold harmless the Trustee shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture. As security for the performance of such obligations of the Company, the Trustee shall have a claim prior to the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (or premium, if any) or interest, if any, on particular Securities or any coupons.

When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 501(5), the expenses (including reasonable charges and expense of its counsel) of and the compensation for such services are intended to constitute expenses of

 

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administration under any applicable U.S. or Canadian federal, state or provincial bankruptcy, insolvency or other similar law.

The provisions of this Section shall survive the termination of this Indenture, the payment of the Securities and the resignation or removal of the Trustee.

SECTION 608. Corporate Trustee Required; Eligibility.

There shall be at all times a Trustee hereunder which shall be eligible to act as Trustee under TIA Section 310(a)(l) and shall have a combined capital and surplus (together with that of its parent) of at least $50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of federal, state, territorial or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

SECTION 609. Resignation and Removal; Appointment of Successor.

(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 610.

(b) The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 610 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

(c) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of not less than a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company.

(d) If at any time:

(1) the Trustee shall acquire any conflicting interest as defined in TIA Section 310(b) and fail to comply with the provisions of TIA Section 310(b)(i), or

(2) the Trustee shall fail to comply with the provisions of the TIA Section 310(b) after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or

(3) the Trustee shall cease to be eligible under Section 608 and shall fail to resign after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or

 

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(4) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of such Trustee or of its property shall be appointed or any public officer shall take charge or control of such Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

then, in any such case, (i) the Company may remove the Trustee with respect to all Securities or the Securities of such series, or (ii) subject to TIA Section 315(e), any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities of such series and the appointment of a successor Trustee or Trustees. The following indentures shall be deemed to be specifically described herein for the purposes of clause (i) of the second provision contained in TIA Section 310(b): (a) Indenture, dated as of September 15, 2000, between Alberta Energy Company Ltd. and The Bank of New York, as trustee, as amended by a supplemental indenture, dated as of January 1, 2003, between the Company and The Bank of New York, as trustee, (b) Indenture, dated as of October 26, 2001, between Alberta Energy Company Ltd. and The Bank of New York, as trustee, as amended by a supplemental indenture, dated as of January 1, 2003, between the Company and The Bank of New York, as trustee, and (c) Indenture, dated as of October 2, 2003, between the Company and The Bank of New York, as trustee.

(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series). If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

(f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to the Holders of Securities of such series in the manner provided for in Section 106. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.

 

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SECTION 610. Acceptance of Appointment by Successor.

(a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.

(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. Whenever there is a successor Trustee with respect to one or more (but less than all) series of securities issued pursuant to this Indenture, the terms “Indenture” and “Securities’’ shall have the meanings specified in the provisos to the respective definitions of those terms in Section 101 which contemplate such situation.

(c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such

 

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successor Trustee all rights, powers and trusts referred to in paragraph (i) or (ii) of this Section, as the case may be.

(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.

SECTION 611. Merger, Conversion, Consolidation or Succession to Business.

Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. In case any of the Securities shall not have been authenticated by such predecessor Trustee, any successor Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor Trustee. In all such cases such certificates shall have the full force and effect which this Indenture provides for the certificate of authentication of the Trustee; provided , however, that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Securities in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.

SECTION 612. Authorization of Authenticating Agent.

At any time when any of the Securities remain Outstanding, the Trustee may authorize an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series and the Trustee shall give written notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, in the manner provided for in Section 106, Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Any such authorization shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustee, and a copy of such instrument shall be promptly furnished to the Company. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or

 

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examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect specified in this Section.

Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.

An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may authorize a successor Authenticating Agent which shall be acceptable to the Company and shall give written notice of such authorization to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, in the manner provided for in Section 106. Any successor Authenticating Agent upon acceptance of its authorization hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent No successor Authenticating Agent shall be authorized unless eligible under the provisions of this Section.

The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.

If an authorization with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:

Dated:                                            

This is one of the Securities of the series designated and referred to in, and issued under, the within-mentioned Indenture.

 

THE BANK OF NEW YORK,

as Trustee

By  

 

  as Authenticating Agent
By  

 

  Authorized Signatory

 

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ARTICLE SEVEN

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.

The Company will furnish or cause to be furnished to the Trustee (1) not more than 15 days after each Regular Record Date a list, in such form as the Trustee may reasonably require, of the names and addresses of Holders of Registered Securities as of such Regular Record Date; provided , however , that the Company shall not be obligated to furnish or cause to be furnished such list at any time that the list shall not differ in any respect from the most recent list furnished to the Trustee by the Company and at such times as the Trustee is acting as Security Registrar for the applicable series of Securities and (2) at such other times as the Trustee may request in writing within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished.

SECTION 702. Preservation of List of Names and Addresses of Holders.

The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders of Registered Securities contained in the most recent list furnished to it as provided in Section 701 and as to the names and addresses of Holders of Registered Securities received by the Trustee in its capacity as Security Registrar for the applicable series of Securities (if acting in such capacity).

The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished.

Holders may communicate as provided in Section 312(b) of the Trust Indenture Act with other Holders with respect to their rights under this Indenture or under the Securities.

SECTION 703. Disclosure of Names and Addresses of Holders.

Every Holder of Securities or coupons, by receiving and holding the same, agrees with the Company and the Trustee that none of the Company or the Trustee or any agent of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with TIA Section 312, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under TIA Section 312(b).

SECTION 704. Reports by Trustee.

(a) Within 60 days after May 15 of each year commencing with the first May 15 after the first issuance of Securities pursuant to this Indenture, the Trustee shall transmit to the Holders of Registered Securities, in the manner and to the extent provided

 

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in Section 313(c) of the Trust Indenture Act, a brief report dated as of such May 15 if required by Section 313(a) of the Trust Indenture Act.

(b) The Trustee shall comply with Sections 313(b) and 313(c) of the Trust Indenture Act.

(c) A copy of such report shall, at the time of such transmission to the Holders of Registered Securities, be filed by the Trustee with the Company (Attention: General Counsel), with each securities exchange upon which any of the Securities are listed (if so listed) and also with the Commission. The Company agrees to notify the Trustee in writing when the Securities become listed on any stock exchange.

SECTION 705. Reports by the Company.

The Company shall:

(a) file with the Trustee, within 15 days after the Company is required to file the same with the Commission, copies, which may be in electronic format, of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;

(b) file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations;

(c) notwithstanding that the Company may not be required to remain subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the Commission, the Company shall provide the Trustee:

(1) within 140 days after the end of each fiscal year, the information required to be contained in annual reports on Form 20-F, Form 40-F or Form 10-K as applicable (or any successor form); and

(2) within 65 days after the end of each of the first three fiscal quarters of each fiscal year, the information required to be contained in reports on Form 6-K (or any successor form) which, regardless of applicable requirements, shall, at a minimum, contain such information required to be provided in quarterly reports under the laws of Canada or any province thereof to security holders of a company with securities listed on the Toronto Stock Exchange, whether or not the Company has any of its securities so listed.

Such reports, to the extent permitted by the rules and regulations of the Commission, will be prepared in accordance with Canadian disclosure requirements and

 

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GAAP; provided , however , that the Company shall not be obligated to file such reports with the Commission if the Commission does not permit such filings;

(d) transmit to all Holders of Registered Securities, in the manner and to the extent provided in Section 313(c) of the TIA, within 15 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (a) and (b) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.

ARTICLE EIGHT

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

SECTION 801. Company May Consolidate, etc., Only on Certain Terms.

The Company shall not consolidate or amalgamate with or merge into or enter into any statutory arrangement with any other corporation, or convey, transfer or lease all or substantially all of its properties and assets to any Person, unless:

(1) the entity formed by or continuing from such consolidation or amalgamation or into which the Company is merged or with which the Company enters into such statutory arrangement or the Person which acquires or leases, all or substantially all of the Company’s properties and assets (A) shall be a corporation, partnership or trust organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia or the laws of Canada or any province or territory thereof, or, if such consolidation, amalgamation, merger, statutory arrangement or other transaction would not impair the rights of Holders, in any other country, provided that if such successor entity is organized under the laws of a jurisdiction other than the United States, any state thereof or the District of Columbia, or the laws of Canada or any province or territory thereof, the successor entity assumes the Company’s obligations under the Securities and this Indenture to pay Additional Amounts, with the name of such successor jurisdiction being included in addition to Canada in each place that Canada appears in Section 1005 and (B) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, or shall assume by operation of law, the Company’s obligation for the due and punctual payment of the principal of (and premium, if any) and interest, if any, on all the Securities and the performance and observance of every covenant of this Indenture on the part of the Company to be performed or observed;

(2) immediately before and after giving effect to such transaction, no Default or Event of Default, shall have happened and be continuing: and

(3) the Company or such Person shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such amalgamation, statutory arrangement, consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.

This Section shall only apply to a merger, amalgamation, statutory arrangement or consolidation in which the Company is not the surviving corporation and to conveyances, leases

 

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and transfers by the Company as transferor or lessor. For greater certainty, the Company shall be considered to be the surviving corporation in the event of a statutory amalgamation by the Company with any Subsidiary wholly-owned by it.

SECTION 802. Successor Person Substituted.

Upon any amalgamation or consolidation by the Company with or merger by the Company into any other corporation or any conveyance, transfer or lease all or substantially all of the properties and assets of the Company to any Person in accordance with Section 801, the successor Person formed by such amalgamation or consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and in the event of any such conveyance or transfer, the Company (which term shall for this purpose mean the Person named as the “Company” in the first paragraph of this Indenture or any successor Person which shall theretofore become such in the manner described in Section 801), except in the case of a lease, shall be discharged of all obligations and covenants under this Indenture and the Securities and the coupons and may be dissolved and liquidated.

SECTION 803. Securities to Be Secured in Certain Events.

If, upon any such amalgamation, consolidation or statutory arrangement of the Company with or merger of the Company into any other corporation, or upon any conveyance, lease or transfer of all or substantially all of the property of the Company to any other Person, any Restricted Property of the Company or a Restricted Subsidiary, or any Restricted Securities owned by the Company immediately prior thereto, would thereupon become subject to any Lien, then unless such Lien could be created pursuant to Section 1006 without equally and ratably securing the Securities, the Company, prior to or simultaneously with such consolidation, amalgamation, statutory arrangement, merger, conveyance, lease or transfer, will, as to such Restricted Property or Restricted Securities, secure or cause such Restricted Subsidiary to secure the Securities Outstanding hereunder (together with, if the Company shall so determine, any other indebtedness of the Company now existing or hereafter created which is not subordinate to the Securities) equally and ratably with (or prior to) the indebtedness which upon such consolidation, amalgamation, merger, statutory arrangement, conveyance, lease or transfer is to become secured as to such Restricted Property or Restricted Securities by such Lien, or will cause such Securities to be so secured; provided that, for the purpose of providing such equal and ratable security, the principal amount of Original Issue Discount Securities and Indexed Securities shall mean that amount which would at the time of making such effective provision be due and payable pursuant to Section 502 and the terms of such Original Issue Discount Securities and Indexed Securities upon a declaration of acceleration of the Maturity thereof, and the extent of such equal and ratable security shall be adjusted, to the extent permitted by law, as and when said amount changes over time pursuant to the terms of such Original Issue Discount Securities and Indexed Securities.

 

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ARTICLE NINE

SUPPLEMENTAL INDENTURES

SECTION 901. Supplemental Indentures Without Consent of Holders.

Without the consent of any Holders, the Company, when authorized by or pursuant to a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:

(1) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company contained herein and in the Securities; or

(2) to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities and any related coupons (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company; or

(3) to add any additional Events of Default (and if such Events of Default are to be for the benefit of less than all series of Securities, stating that such Events of Default are being included solely for the benefit of such series); or

(4) to add to or change any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of principal of or any premium or interest on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be issued in exchange for Bearer Securities of other authorized denominations or to permit or facilitate the issuance of Securities in uncertificated form; provided that any such action shall not adversely affect the interests of the Holders of Securities of any series or any related coupons in any material respect; or

(5) to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or

(6) to secure the Securities pursuant to the requirements of Section 803 or 1006 or otherwise; or

(7) to establish the form or terms of Securities of any series as permitted by Sections 201 and 301; or

(8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or

 

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facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 610(b); or

(9) to close this Indenture with respect to the authentication and delivery of additional series of Securities; or

(10) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Sections 401, 1402 and 1403; provided that any such action shall not adversely affect the interests of the Holders of Securities of such series and any related coupons or any other series of Securities in any material respect; or

(11) to cure any ambiguity, to correct or supplement any provision herein or in any supplemental indenture which may be inconsistent with any other provision herein or in any supplemental indenture, or to make any other provisions with respect to matters or questions arising hereunder or in any supplemental indenture; provided such action shall not adversely affect the interests of the Holders of Securities of any series and any related coupons in any material respect.

SECTION 902. Supplemental Indentures with Consent of Holders.

With the consent of the Holders of not less than a majority in principal amount of all Outstanding Securities of a series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by or pursuant to a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture which affect such series of Securities or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided , however , that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security of such series,

(1) change the Stated Maturity of the principal of (or premium, if any) or any installment of interest on any Security of such series (except to the extent provided by Section 308 herein, if applicable), or reduce the principal amount thereof (or premium, if any) or the rate of interest, if any, thereon, or change any obligation of the Company to pay Additional Amounts contemplated by Section 1005 (except as contemplated by Section 801(1) and permitted by Section 901(1)), or reduce the amount of the principal of an Original Issue Discount Security of such series that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502 or the amount thereof provable in bankruptcy pursuant to Section 504, or adversely affect any right of repayment at the option of any Holder of any Security of such series, or change any Place of Payment where, or the Currency in which, any Security of such series or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption or repayment at the option of the Holder, on or after the Redemption Date or Repayment Date, as the case may be), or adversely affect any right to convert or exchange any Security as may be provided pursuant to Section 301 herein, or

 

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(2) reduce the percentage in principal amount of the Outstanding Securities of such series required for any such supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions of this Indenture which affect such series or certain defaults applicable to such series hereunder and their consequences provided for in this Indenture, or reduce the requirements of Section 1504 for quorum or voting with respect to Securities of such series, or

(3) modify any of the provisions of this Section, Section 513 or Section 1009, except to increase any such percentage or to provide that certain other provisions of this Indenture which affect such series cannot be modified or waived without the consent of the Holder of each Outstanding Security of such series.

A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series. Any such supplemental indenture adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture, or modifying in any manner the rights of the Holders of Securities of such series, shall not affect the rights under this Indenture of the Holders of Securities of any other series.

It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.

SECTION 903. Execution of Supplemental Indentures.

In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

SECTION 904. Effect of Supplemental Indentures.

Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

SECTION 905. Conformity with the Trust Indenture Act.

Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.

 

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SECTION 906. Reference in Securities to Supplemental Indentures.

Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.

SECTION 907. Notice of Supplemental Indentures.

Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of Section 902, the Company shall give notice thereof to the Holders of each Outstanding Security affected, in the manner provided for in Section 106, setting forth in general terms the substance of such supplemental indenture.

ARTICLE TEN

COVENANTS

SECTION 1001. Payment of Principal (Premium, if any) and Interest.

The Company covenants and agrees for the benefit of the Holders of each series of Securities and any related coupons that it will duly and punctually pay the principal of (and premium, if any) and interest, if any, on the Securities of that series in accordance with the terms of the Securities, any coupons appertaining thereto and this Indenture. Unless otherwise specified as contemplated by Section 301 with respect to any series of Securities, any interest installments due on Bearer Securities on or before Maturity shall be payable only upon presentation and surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature.

SECTION 1002. Maintenance of Office or Agency.

If the Securities of a series are issuable only as Registered Securities, the Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange, where Securities of that series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable, and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served.

If Securities of a series are issuable as Bearer Securities, the Company will maintain (A) in New York, New York an office or agency where any Registered Securities of that series may be presented or surrendered for payment, where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange, where Securities of that series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable, where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served

 

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and where Bearer Securities of that series and related coupons may be presented or surrendered for payment in the circumstances described in the following paragraph (and not otherwise), (B) subject to any laws or regulations applicable thereto, in a Place of Payment for that series which is located outside the United States, an office or agency where Securities of that series and related coupons may be presented and surrendered for payment; provided , however , that, if the Securities of that series are listed on any securities exchange located outside the United States and such securities exchange shall so require, the Company will maintain a Paying Agent for the Securities of that series in any required city located outside the United States so long as the Securities of that series are listed on such exchange, and (C) subject to any laws or regulations applicable thereto, in a Place of Payment for that series located outside the United States an office or agency where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange, where Securities of that series that are convertible and exchangeable may be surrendered for conversion or exchange, as applicable and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served.

The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish in writing the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, except that Bearer Securities of any series and the related coupons may be presented and surrendered for payment at the offices specified in the Security, in London, and the Company hereby appoints the same as its agents to receive such respective presentations, surrenders, notices and demands.

Unless otherwise specified with respect to any Securities pursuant to Section 301, no payment of principal, premium or interest on Bearer Securities shall be made at any office or agency of the Company in the United States or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States; provided , however, that, if the Securities of a series are payable in Dollars, payment of principal of (and premium, if any) and interest, if any, on any Bearer Security shall be made at the office of the Company’s Paying Agent in New York, New York if (but only if) payment in Dollars of the full amount of such principal, premium or interest, as the case may be, at all offices or agencies outside the United States maintained for such purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions.

The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind any such designation; provided , however , that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in accordance with the requirements set forth above for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. Unless otherwise specified with respect to any Securities as contemplated by Section 301 with respect to a series of Securities, the Company hereby designates as a Place of Payment for each series of Securities the Corporate Trust Office in New York, New York and initially appoints the Trustee at its Corporate Trust Office as Paying Agent in such city and as its agent to receive all such presentations, surrenders, notices and demands.

 

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Unless otherwise specified with respect to any Securities pursuant to Section 301, if and so long as the Securities of any series (i) are denominated in a Currency other than Dollars or (ii) may be payable in a Currency other than Dollars, or so long as it is required under any other provision of the Indenture, then the Company will maintain with respect to each such series of Securities, or as so required, at least one Exchange Rate Agent.

SECTION 1003. Money for Securities Payments to Be Held in Trust.

If the Company shall at any time act as its own Paying Agent with respect to any series of Securities and any related coupons, it will, on or before each due date of the principal of (or premium, if any) or interest, if any, on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal of (or premium, if any) or interest, if any, on Securities of such series so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee in writing of its action or failure so to act.

Whenever the Company shall have one or more Paying Agents for any series of Securities and any related coupons, it will, prior to or on each due date of the principal of (or premium, if any) or interest, if any, on any Securities of that series, deposit with a Paying Agent a sum (in the Currency described in the preceding paragraph) sufficient to pay the principal (or premium, if any) or interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee in writing of its action or failure so to act.

The Company will cause each Paying Agent (other than the Trustee) for any series of Securities to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:

(1) hold all sums held by it for the payment of the principal of (and premium, if any) and interest, if any, on Securities of such series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;

(2) give the Trustee written notice of any default by the Company (or any other obligor upon the Securities of such series) in the making of any payment of principal of (or premium, if any) or interest, if any, on the Securities of such series; and

(3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.

The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent,

 

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such sums to be held by the Trustee upon the same trusts as those upon which sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums.

Except as provided in the Securities of any series, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (or premium, if any) or interest, if any, on any Security of any series, or any coupon appertaining thereto, and remaining unclaimed for two years (or such shorter period as may be specified in the applicable abandoned property statutes) after such principal, premium or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security or coupon shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided , however , that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in an Authorized Newspaper, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.

SECTION 1004. Statement as to Compliance.

The Company will deliver to the Trustee, within 140 days after the end of each fiscal year, a brief certificate from the Chief Executive Officer, the Chief Financial Officer or the Controller of the Company as to his or her knowledge of the Company’s compliance with all conditions and covenants under this Indenture. For purposes of this Section 1004, such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture.

SECTION 1005. Additional Amounts.

(a) Unless otherwise provided pursuant to Section 301, all payments made by or on behalf of the Company under or with respect to the Securities of any series will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the Government of Canada or of any province or territory thereof or by any authority or agency therein or thereof having power to tax (hereinafter “ Canadian Taxes ”), unless the Company is required to withhold or deduct Canadian Taxes by law or by the interpretation or administration thereof. If the Company is so required to withhold or deduct any amount for or on account of Canadian Taxes from any payment made under or with respect to the Securities, the Company will pay to each Holder as additional interest such additional amounts (“ Additional Amounts ”) as may be necessary so that the net amount received by each Holder after such withholding or deduction (and after deducting any Canadian Taxes on such Additional Amounts) will not be less than the amount the Holder would have received if such Canadian Taxes had not been withheld or deducted. However, no Additional Amounts will be payable with respect to a payment made to a Holder (such Holder, an “ Excluded Holder ”) in respect of the beneficial owner thereof:

 

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(1) with which the Company does not deal at arm’s length for the purposes of the Income Tax Act (Canada) at the time of the making of such payment;

(2) which is subject to such Canadian Taxes by reason of the Holder being a resident, domicile or national of, or engaged in business or maintaining a permanent establishment or other physical presence in or otherwise having some connection with Canada or any province thereof otherwise than by the mere holding of Securities or the receipt of payments thereunder; or

(3) which is subject to such Canadian Taxes by reason of the Holder’s failure to comply with any certification, identification, information, documentation or other reporting requirements if compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to exemption from, or a reduction in the rate of deduction or withholding of, such Canadian Taxes.

The Company will also:

(i) make such withholding or deduction; and

(ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.

The Company will furnish to the Holders of the Securities, within 60 days after the date the payment of any Canadian Taxes is due pursuant to applicable law, certified copies of tax receipts or other documents evidencing such payment by the Company.

(b) The Company will indemnify and hold harmless each Holder (other than an Excluded Holder) and, upon written request, reimburse each such Holder for the amount excluding any of Additional Amounts that have been previously been paid by the Company with respect thereto of:

(1) the payment of any Canadian Tax, together with any interest, penalties and reasonable expenses in connection therewith; and

(2) any Canadian Taxes imposed with respect to any reimbursement under clause (1) in this paragraph, but excluding any such Canadian Taxes on such Holder’s net income.

At least five (5) days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Company will be obligated to pay Additional Amounts with respect to such payment, the Company will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable and specifying the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date.

Notwithstanding the foregoing, no Additional Amounts or indemnity amounts will be payable in excess of Additional Amounts or indemnity amounts which would be required if the Holder of the Securities was a resident of the United States for purposes of the Canada-U.S. Income Tax Convention (1980), as amended.

 

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Wherever in this Indenture or the Securities there is mentioned, in any context, the payment of principal (and premium, if any), interest or any other amount payable under or with respect to a Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.

SECTION 1006. Limitation on Liens.

So long as any Securities are Outstanding and subject to the terms of this Indenture, the Company will not, and will not permit any of its Restricted Subsidiaries to, create, incur, assume or otherwise have outstanding any Lien securing any indebtedness for borrowed money or interest thereon (or any liability of the Company or such Restricted Subsidiaries under any guarantee or endorsement or other instrument under which the Company or such Restricted Subsidiaries are contingently liable, either directly or indirectly, for borrowed money or interest thereon), other than Permitted Liens, without also simultaneously or prior thereto securing, or causing such Restricted Subsidiaries to secure, indebtedness under this Indenture so that the Securities are secured equally and ratably with or prior to such other indebtedness or liability, except that the Company and its Restricted Subsidiaries may incur a Lien to secure indebtedness for borrowed money without securing the Securities if, after giving effect thereto, the principal amount of indebtedness for borrowed money secured by Liens created, incurred or assumed after the date hereof and otherwise prohibited by this Indenture does not exceed 10% of the Company’s Consolidated Net Tangible Assets.

Notwithstanding the foregoing, transactions such as the sale (including any forward sale) or other transfer of: (i) oil, gas, minerals or other resources of a primary nature, whether in place or when produced, for a period of time until, or in an amount such that, the purchaser will realize therefrom a specified amount of money or a specified rate of return (however determined), or a specified amount of such oil, gas, minerals, or other resources of a primary nature, or (ii) any other interest in property of the character commonly referred to as a “ production payment ”, will not constitute a Lien and will not result in the Company or a Restricted Subsidiary being required to secure the Securities.

SECTION 1007. Payment of Taxes.

The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, all material taxes, assessments and governmental charges levied or imposed upon the Company or any Restricted Subsidiary or upon the income, profits or property of the Company or any Restricted Subsidiary; provided , however , that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment or charge whose amount, applicability or validity is being contested in good faith by appropriate proceedings.

SECTION 1008. Corporate Existence.

Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the rights (charter and statutory) and franchises of the Company and any Restricted Subsidiary; provided , however , that the Company shall not be required to preserve any such right or franchise if the

 

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Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries as a whole.

SECTION 1009. Waiver of Certain Covenants.

The Company may, with respect to any series of Securities, omit in any particular instance to comply with any term, provision or condition which affects such series set forth in Section 803 or Sections 1006 through 1008 inclusive or, as specified pursuant to Section 301(17) for Securities of such series, in any covenants of the Company added to Article Ten pursuant to Section 301(16) or Section 301(17) in connection with Securities of such series, if before the time for such compliance the Holders of at least a majority in principal amount of all Outstanding Securities of any series, by Act of such Holders, waive such compliance in such instance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee to Holders of Securities of such series in respect of any such term, provision or condition shall remain in full force and effect.

ARTICLE ELEVEN

REDEMPTION OF SECURITIES

SECTION 1101. Applicability of Article.

Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article.

SECTION 1102. Election to Redeem; Notice to Trustee.

The election of the Company to redeem any Securities shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Company, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing of such Redemption Date and of the principal amount of Securities of such series to be redeemed and shall deliver to the Trustee such documentation and records as shall enable the Trustee to select the Securities to be redeemed pursuant to Section 1103. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction.

SECTION 1103. Selection by Trustee of Securities to Be Redeemed.

If less than all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 90 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions of the principal of Securities of such series: provided , however , that no such partial redemption shall reduce the portion of the principal

 

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amount of a Security not redeemed to less than the minimum authorized denomination for Securities of such series established pursuant to Section 301.

The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.

For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.

SECTION 1104. Notice of Redemption.

Except as otherwise specified as contemplated by Section 301, notice of redemption shall be given in the manner provided for in Section 106 not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed. Failure to give notice in the manner provided in Section 106 to the Holder of any Securities designated for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other Securities or portion thereof.

All notices of redemption shall state:

(1) the Redemption Date.

(2) the Redemption Price and the amount of accrued interest to the Redemption Date payable as provided in Section 1106, if any,

(3) if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed,

(4) in case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the Holder will receive, without charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed,

(5) that on the Redemption Date, the Redemption Price and accrued interest, if any, to the Redemption Date payable as provided in Section 1106 will become due and payable upon each such Security, or the portion thereof, to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,

(6) the Place or Places of Payment where such Securities, together in the case of Bearer Securities with all coupons appertaining thereto, if any, maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price and accrued interest, if any,

(7) that the redemption is for a sinking fund, if such is the case,

 

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(8) that, unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied by all coupons maturing subsequent to the Redemption Date or the amount of any such missing coupon or coupons will be deducted from the Redemption Price unless security or indemnity satisfactory to the Company, the Trustee and any Paying Agent is furnished, and

(9) if Bearer Securities of any series are to be redeemed and any Registered Securities of such series are not to be redeemed, and if such Bearer Securities may be exchanged for Registered Securities not subject to redemption on such Redemption Date pursuant to Section 305 or otherwise, the last date, as determined by the Company, on which such exchanges may be made.

Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company.

SECTION 1105. Deposit of Redemption Price.

At or prior to 10:00 a.m. (New York time) on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the Redemption Price of, and accrued interest, if any, on all the Securities which are to be redeemed on that date.

SECTION 1106. Securities Payable on Redemption Date.

Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(c)) (together with accrued interest, if any, to the Redemption Date), and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest, if any) such Securities shall, if the same were interest-bearing, cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided below, shall be void, Upon surrender of any such Security for redemption in accordance with said notice, together with all coupons, if any, appertaining thereto maturing after the Redemption Date, such Security shall be paid by the Company at the Redemption Price, together with accrued interest, if any, to the Redemption Date; provided , however , that installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of coupons for such interest; and provided further , that installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.

 

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If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant coupons maturing after the Redemption Date, such Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided , however , that interest represented by coupons shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of those coupons.

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) set forth in such Security.

SECTION 1107. Securities Redeemed in Part.

Any Security which is to be redeemed only in part (pursuant to the provisions of this Article or of Article Twelve) shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.

SECTION 1108. Tax Redemption.

Unless otherwise specified pursuant to Section 301, the Company shall have the right to redeem, at any time, the Securities of a series, in whole but not in part, at a redemption price equal to the principal amount thereof together with accrued and unpaid interest to the date fixed for redemption, upon the giving of a notice as described below, if (1) the Company (or its successor) determines that (a) as a result of any change in or amendment to the laws (or any regulations or rulings promulgated thereunder) of Canada or of any political subdivision or taxing authority thereof or therein affecting taxation, or any change in official position regarding application or interpretation of such laws, regulations or rulings (including a holding by a court of competent jurisdiction), which change or amendment is announced or becomes effective on or after a date specified pursuant to Section 301, if any date is so specified, the Company has or will become obligated to pay, on the next succeeding date on which interest is due, Additional Amounts pursuant to Section 1005 or (b) on or after a date specified pursuant to Section 301, any action has been taken by any taxing authority of, or any decision has been rendered by a court of competent jurisdiction in, Canada or any political subdivision or taxing authority thereof or therein, including any of those actions specified in (a) above, whether or not such action was taken or decision was rendered with respect to the Company, or any change, amendment,

 

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application or interpretation shall be officially proposed, which, in any such case, in the Opinion of Counsel to the Company, will result in the Company becoming obligated to pay, on the next succeeding date on which interest is due, Additional Amounts with respect to any Security of such series and (2) in any such case, the Company in its business judgment determines that such obligation cannot be avoided by the use of reasonable measures available to the Company; provided , however , that (i) no such notice of redemption may be given earlier than 60 or later than 30 days prior to the earliest date on which the Company would be obligated to pay such Additional Amounts were a payment in respect of the Securities then due, and (ii) at the time such notice of redemption is given, such obligation to pay such Additional Amounts remains in effect.

ARTICLE TWELVE

SINKING FUNDS

SECTION 1201. Applicability of Article.

Retirements of Securities of any series pursuant to any sinking fund shall be made in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article.

The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “ mandatory sinking fund payment ”, and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “ optional sinking fund payment ”. If provided for by the terms of Securities of any series, the cash amount of any mandatory sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.

SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.

Subject to Section 1203, in lieu of making all or any part of any mandatory Sinking fund payment with respect to any Securities of a series in cash, the Company may at its option (1) deliver to the Trustee Outstanding Securities of a series (other than any previously called for redemption) theretofore purchased or otherwise acquired by the Company together in the case of any Bearer Securities of such series with all unmatured coupons appertaining thereto, and/or (2) receive credit for the principal amount of Securities of such series which have been previously delivered to the Trustee by the Company or for Securities of such series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any mandatory sinking fund payment with respect to the Securities of the same series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided , however , that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly.

 

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SECTION 1203. Redemption of Securities for Sinking Fund.

Not less than 60 days prior to each sinking fund payment date for any series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) and the portion thereof, if any, which is to be satisfied by delivering or crediting Securities of that series pursuant to Section 1202 (which Securities will, if not previously delivered, accompany such certificate) and whether the Company intends to exercise its right to make a permitted optional sinking fund payment with respect to such series. Such certificate shall be irrevocable and upon its delivery the Company shall be obligated to make the cash payment or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. In the case of the failure of the Company to deliver such certificate, the sinking fund payment due on the next succeeding sinking fund payment date for that series shall be paid entirely in cash and shall be sufficient to redeem the principal amount of such Securities subject to a mandatory sinking fund payment without the option to deliver or credit Securities as provided in Section 1202 and without the right to make any optional sinking fund payment, if any, with respect to such series.

Not more than 60 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.

On or prior to 10:00 a.m. (New York time) on any sinking fund payment date, the Company shall pay to the Trustee or a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) in cash a sum equal to any interest that will accrue to the date fixed for redemption of Securities or portions thereof to be redeemed on such sinking fund payment date pursuant to this Section 1203.

Notwithstanding the foregoing, with respect to a sinking fund for any series of Securities, if at any time the amount of cash to be paid into such sinking fund on the next succeeding sinking fund payment date, together with any unused balance of any preceding sinking fund payment or payments for such series, does not exceed in the aggregate $100,000, the Trustee, unless requested by the Company, shall not give the next succeeding notice of the redemption of Securities of such series through the operation of the sinking fund. Any such unused balance of moneys deposited in such sinking fund shall be added to the sinking fund payment for such series to be made in cash on the next succeeding sinking fund payment date or, at the request of the Company, shall be applied at any time or from time to time to the purchase of Securities of such series, by public or private purchase, in the open market or otherwise, at a purchase price for such Securities (excluding accrued interest and brokerage commissions, for which the Trustee or any Paying Agent will be reimbursed by the Company) not in excess of the principal amount thereof.

 

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ARTICLE THIRTEEN

REPAYMENT AT OPTION OF HOLDERS

SECTION 1301. Applicability of Article.

Repayment of Securities of any series before their Stated Maturity at the option of Holders thereof shall be made in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article.

SECTION 1302. Repayment of Securities.

Securities of any series subject to repayment in whole or in part at the option of the Holders thereof will, unless otherwise provided in the terms of such Securities, be repaid at a price equal to the principal amount thereof, together with interest, if any, thereon accrued to the Repayment Date specified in or pursuant to the terms of such Securities. The Company covenants that on or before the Repayment Date it will deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal (or, if so provided by the terms of the Securities of any series, a percentage of the principal) of and (except if the Repayment Date shall be an Interest Payment Date) accrued interest, if any, on all the Securities or portions thereof, as the case may be, to be repaid on such date.

SECTION 1303. Exercise of Option.

Securities of any series subject to repayment at the option of the Holders thereof will contain an “Option to Elect Repayment” form on the reverse of such Securities. To be repaid at the option of the Holder, any Security so providing for such repayment, with the “Option to Elect Repayment” form on the reverse of such Security duly completed by the Holder (or by the Holder’s attorney duly authorized in writing), must be received by the Company at the Place of Payment therefor specified in the terms of such Security (or at such other place or places or which the Company shall from time to time notify the Holders of such Securities) not earlier than 45 days nor later than 30 days prior to the Repayment Date. If less than the entire principal amount of such Security is to be repaid in accordance with the terms of such Security, the principal amount of such Security to be repaid, in increments of the minimum denomination for Securities of such series, and the denomination or denominations of the Security or Securities to be issued to the Holder for the portion of the principal amount of such Security surrendered that is not to be repaid, must be specified. The principal amount of any Security providing for repayment at the option of the Holder thereof may not be repaid in part if, following such repayment, the unpaid principal amount of such Security would be less than the minimum authorized denomination of Securities of the series of which such Security to be repaid is a part. Except as otherwise may be provided by the terms of any Security providing for repayment at the option of the Holder thereof, exercise of the repayment option by the Holder shall be irrevocable unless waived by the Company.

 

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SECTION 1304. When Securities Presented for Repayment Become Due and Payable.

If Securities of any series providing for repayment at the option of the Holders thereof shall have been surrendered as provided in this Article and as provided by or pursuant to the terms of such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall become due and payable and shall be paid by the Company on the Repayment Date therein specified, and on and after such Repayment Date (unless the Company shall default in the payment of such Securities on such Repayment Date) such Securities shall, if the same were interest-bearing, cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be repaid, except to the extent provided below, shall be void. Upon surrender of any such Security for repayment in accordance with such provisions, together with all coupons, if any, appertaining thereto maturing after the Repayment Date, the principal amount of such Security so to be repaid shall be paid by the Company, together with accrued interest, if any, to the Repayment Date; provided , h owever , that coupons whose Stated Maturity is on or prior to the Repayment Date shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified pursuant to Section 301, only upon presentation and surrender of such coupons; and provided further , that, in the case of Registered Securities, installments of interest, if any, whose Stated Maturity is on or prior to the Repayment Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.

If any Bearer Security surrendered for repayment shall not be accompanied by all appurtenant coupons maturing after the Repayment Date, such Security may be paid after deducting from the amount payable therefor as provided in Section 1302 an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made as provided in the preceding sentence, such Holder shall be entitled to receive the amount so deducted; provided , however , that interest represented by coupons shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of those coupons.

If the principal amount of any Security surrendered for repayment shall not be so repaid upon surrender thereof, such principal amount (together with interest, if any, thereon accrued to such Repayment Date) shall, until paid, bear interest from the Repayment Date at the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) set forth in such Security.

SECTION 1305. Securities Repaid in Part.

Upon surrender of any Registered Security which is to be repaid in part only, the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security, without service charge and at the expense of the Company, a new Registered Security

 

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or Securities of the same series, of any authorized denomination specified by the Holder, in an aggregate principal amount equal to and in exchange for the portion of the principal of such Security so surrendered which is not to be repaid.

 

ARTICLE FOURTEEN

DEFEASANCE AND COVENANT DEFEASANCE

SECTION 1401. Company’s Option to Effect Defeasance or Covenant Defeasance.

Except as otherwise specified as contemplated by Section 301 for Securities of any series, the provisions of this Article Fourteen shall apply to each series of Securities, and the Company may, at its option, effect defeasance (as defined below) of the Securities of or within a series under Section 1402, or covenant defeasance (as defined below) of or within a series under Section 1403 in accordance with the terms of such Securities and in accordance with this Article.

SECTION 1402. Defeasance and Discharge.

Upon the Company’s exercise of the above option applicable to this Section with respect to any Securities of or within a series, the Company shall be deemed to have been discharged from its obligations with respect to such Outstanding Securities and any related coupons on the date the conditions set forth in Section 1404 are satisfied (hereinafter, “ defeasance ”). For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Securities and any related coupons, which shall thereafter be deemed to be “Outstanding” only for the purposes of Section 1405 and the other Sections of this Indenture referred to in (A) and (B) below, and to have satisfied all its other obligations under such Securities and any related coupons and this Indenture insofar as such Securities and any related coupons are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of such Outstanding Securities and any related coupons to receive, solely from the trust fund described in Section 1404 and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on, such Securities and any related coupons when such payments are due, (B) the Company’s obligations with respect to such Securities under Sections 304, 305, 306, 1002 and 1003 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 1005, (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s obligation under Section 607 and (D) this Article Fourteen. Subject to compliance with this Article Fourteen, the Company may exercise its option under this Section 1402 notwithstanding the prior exercise of its option under Section 1403 with respect to such Securities and any related coupons.

SECTION 1403. Covenant Defeasance.

Upon the Company’s exercise of the above option applicable to this Section with respect to any Securities of or within a series, the Company shall be released from its obligations under Section 803 and Sections 1006 through 1008 inclusive and, if specified pursuant to Section 301, its obligations under any other covenant, with respect to such Outstanding

 

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Securities and any related coupons on and after the date the conditions set forth in Section 1404 are satisfied (hereinafter, “ covenant defeasance ”), and such Securities and any related coupons shall thereafter be deemed not to be “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “ Outstanding ” for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such Outstanding Securities and any related coupons, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 501(3) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Securities and any related coupons shall be unaffected thereby.

SECTION 1404. Conditions to Defeasance or Covenant Defeasance.

The following shall be the conditions to application of either Section 1402 or Section 1403 to any Outstanding Securities of or within a series and any related coupons:

(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 608 who shall agree to comply with the provisions of this Article Fourteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities and any related coupons, (A) an amount (in such Currency in which such Securities and any related coupons are then specified as payable at Stated Maturity), or (B) Government Obligations applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any), and interest, if any, under such Securities and any related coupons, money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants (which shall be expressed in a written certification thereof delivered to the Company, that is attached to an Officer’s Certificate delivered to the Trustee), to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (i) the principal of (and premium, if any) and interest, if any, on such Outstanding Securities and any related coupons on the Stated Maturity (or Redemption Date, if applicable) of such principal (and premium, if any) or installment of interest, if any, and (ii) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any related coupons on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and any related coupons; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Obligations to said payments with respect to such Securities and any related coupons. Before such a deposit, the Company may give to the Trustee, in accordance with Section 1102 hereof, a notice of its election to redeem all or any portion of such Outstanding Securities at a future date in accordance with the terms

 

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of the Securities of such series and Article Eleven hereof, which notice shall be irrevocable. Such irrevocable redemption notice, if given, shall be given effect in applying the foregoing.

(2) No Default or Event of Default with respect to such Securities or any related coupons shall have occurred and be continuing on the date of such deposit or, insofar as paragraphs (5) and (6) of Section 501 are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).

(3) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound.

(4) In the case of an election under Section 1402, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of execution of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of such Outstanding Securities and any related coupons will not recognize income, gain or loss for federal income tax purposes as a result of such defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred.

(5) Notwithstanding any other provisions of this Section, such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations in connection therewith pursuant to Section 301.

(6) The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the defeasance under Section 1402 or the covenant defeasance under Section 1403 (as the case may be) have been complied with.

(7) In the case of an election under Section 1403, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States to the effect that the Holders of such Outstanding Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. federal income tax on the same amounts in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.

(8) Either the Company has delivered to the Trustee an Opinion of Counsel in Canada or a ruling from Canada Revenue Agency to the effect that the Holders of such Outstanding Securities will not recognize income, gain or loss for Canadian federal or provincial income tax or other tax purpose as a result of such defeasance or covenant defeasance and will be subject to Canadian federal or provincial income tax and other tax on the same amounts, in the same manner and at the same times as would have been the case had such defeasance not occurred (and for the purposes of such opinion, such

 

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Canadian counsel shall assume that Holders of the Securities include Holders who are not resident in Canada).

(9) The Company is not an “insolvent person” within the meaning of the Bankruptcy and Insolvency Act (Canada) on the date of such deposit or at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).

(10) The Company has delivered to the Trustee an Opinion of Counsel to the effect that such deposit shall not cause the Trustee or the trust so created to be subject to the Investment Company Act of 1940, as amended.

SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.

Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations (or other property as may be provided pursuant to Section 301) (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 1405, the “Trustee”) pursuant to Section 1404 in respect of such Outstanding Securities and any related coupons shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and any related coupons and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities and any related coupons of all sums due and to become due thereon in respect of principal (and premium, if any) and interest, if any, but such money need not be segregated from other funds except to the extent required by law.

Unless otherwise specified with respect to any Security pursuant to Section 301, if, after a deposit referred to in Section 1404(1) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 312(b) or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 1404(1) has been, made in respect of such Security, or (b) a Conversion Event occurs as contemplated in Section 312(d) or 312(e) or by the terms of any Security in respect of which the deposit pursuant to Section 1404(1) has been made, the indebtedness represented by such Security and any related coupons shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any) and interest, if any, on such Security as they become due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on the applicable Market Exchange Rate for such Currency in effect on the third Business Day prior to each payment date, except, with respect to a Conversion Event, for such Currency in effect (as nearly as feasible) at the time of the Conversion Event.

The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 1404 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any related coupons.

 

88


Anything in this Article Fourteen to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in Section 1404 which, in the opinion of, a nationally recognized firm of independent public accountants (evidenced by an Officer’s Certificate) delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent defeasance or covenant defeasance, as applicable, in accordance with this Article.

SECTION 1406. Reinstatement.

If the Trustee or any Paying Agent is unable to apply any money in accordance with Section 1405 by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations under this Indenture and such Securities and any related coupons shall be revived and reinstated as though no deposit had occurred pursuant to Section 1402 or 1403, as the case may be, until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 1405; provided , however , that if the Company makes any payment of principal of (or premium, if any) or interest, if any, on any such Security or any related coupon following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities and any related coupons to receive such payment from the money held by the Trustee or Paying Agent.

ARTICLE FIFTEEN

MEETINGS OF HOLDERS OF SECURITIES

SECTION 1501. Purposes for Which Meetings May Be Called.

A meeting of Holders of one or more series of Securities may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such series.

SECTION 1502. Call, Notice and Place of Meetings.

(a) The Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 1501, to be held at such time and at such place in New York, New York, in Calgary. Alberta or in London, England as the Trustee shall determine. Notice of every meeting of Holders of one or more series of Securities, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided for in Section 106, not less than 21 nor more than 180 days prior to the date fixed for the meeting.

(b) In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding Securities of any series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in Section 1501, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not

 

89


have made the first publication of the notice of such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place in New York, New York in Calgary, Alberta or in London, England for such meeting and may call such meeting for such purposes by giving notice thereof as provided in paragraph (a) of this Section.

SECTION 1503. Persons Entitled to Vote at Meetings.

To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall be (1) a Holder of one or more Outstanding Securities of such series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder of Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any series shall be the Person entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.

SECTION 1504. Quorum; Action.

The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders of Securities of such series; provided , however , that, if any action is to be taken at such meeting with respect to a consent or waiver which this Indenture expressly provides may be given by the Holders of not less than a specified percentage in principal amount of the Outstanding Securities of a series, the Persons entitled to vote such specified percentage in principal amount of the Outstanding Securities of such series shall constitute a quorum. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 1502(a), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of any adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the Outstanding Securities of such series which shall constitute a quorum.

Subject to the foregoing, at the reconvening of any meeting adjourned for lack of a quorum, the Persons entitled to vote 25% in principal amount of the Outstanding Securities at the time shall constitute a quorum for the taking of any action set forth in the notice of the original meeting.

Except as limited by the proviso to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the affirmative vote of the Holders of not less than a majority in principal amount of the Outstanding Securities of such series who have cast their votes; provided , however , that, except as limited by the proviso to Section 902, any resolution with respect to any request,

 

90


demand, authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of not less than such specified percentage in principal amount of the Outstanding Securities of such series.

Any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders of Securities of such series and the related coupons, whether or not present or represented at the meeting.

Notwithstanding the foregoing provisions of this Section 1504, if any action is to be taken at a meeting of Holders of Securities of any series with respect to any request, demand, authorization, direction, notice, consent, waiver or other action that this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage in principal amount of all Outstanding Securities affected thereby, or of the Holders of such series and one or more additional series:

(i) there shall be no minimum quorum requirement for such meeting;

and

(ii) the principal amount of the Outstanding Securities of such series that vote in favor of such request, demand, authorization, direction, notice, consent, waiver or other action shall be taken into account in determining whether such request, demand, authorization, direction, notice, consent, waiver or other action has been made, given or taken under this Indenture.

SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings.

(a) Notwithstanding any provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of a series in regard to proof of the holding of Securities of such series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as its shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 104 and the appointment of any proxy shall be proved in the manner specified in Section 104 or by having the signature of the person executing the proxy witnessed or guaranteed by any trust company, bank or banker authorized by Section 104 to certify to the holding of Bearer Securities. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 104 or other proof.

(b) The Trustee shall, by an instrument in writing appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of Securities as provided in Section 1502(b), in which case the Company or the

 

91


Holders of Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting.

(c) At any meeting each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount of Outstanding Securities of such series held or represented by him (determined as specified in the definition of “Outstanding” in Section 101); provided , however , that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.

(d) Any meeting of Holders of Securities of any series duly called pursuant to Section 1502 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting; and the meeting may be held as so adjourned without further notice.

SECTION 1506. Counting Votes and Recording Action of Meetings.

The vote upon any resolution submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers, if any, of the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 1502 and, if applicable, Section 1504. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.

SECTION 1507. Counterparts.

This Indenture may be executed in any number of counterparts (either by facsimile or by original manual signature) each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Indenture.

*    *    *    *    *

 

92


IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.

 

ENCANA CORPORATION
By:   /s/ Brian C. Ferguson
Name:   Brian C. Ferguson
Title:   Executive Vice-President & Chief Financial Officer

 

By:   /s/ Thomas G. Hinton
Name:   Thomas G. Hinton
Title:   Treasurer

 

THE BANK OF NEW YORK,
as Trustee
By:   /s/ Lesley Daley
Name:   Lesley Daley
Title:   ASSISTANT VICE PRESIDENT


EXHIBIT A

FORMS OF CERTIFICATION

EXHIBIT A-1

FORM OF CERTIFICATE TO BE GIVEN BY

PERSON ENTITLED TO RECEIVE BEARER SECURITY

OR TO OBTAIN INTEREST PAYABLE PRIOR

TO THE EXCHANGE DATE

CERTIFICATE

ENCANA CORPORATION

[Insert title of sufficient description of Securities to be delivered]

This is to certify that as of the date hereof, and except as set forth below, the above-captioned Securities held by you for our account (i) are owned by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States federal income taxation regardless of its source (“ United States person(s) ”), (ii) are owned by United States person(s) that are (a) foreign branches of United States financial institutions (financial institutions, as defined in United States Treasury Regulations Section 2.165-12(c)(1)(v) are herein referred to as “financial institutions”) purchasing for their own account or for resale, or (b) United States person(s) who acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution hereby agrees, on its own behalf or through its agent, that you may advise EnCana Corporation or its agent that such financial institution will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are owned by United States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or foreign financial institution described in clause (iii) above (whether or not also described in clause (i) or (ii)), this is to further certify that such financial institution has not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.

As used herein, “United States” means the United States of America (including the states and the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.

We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the above-captioned Securities held by

 

A-1-1


you for our account in accordance with your operating procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.

This certificate excepts and does not relate to [U.S.$] [            ] of such interest in the above-captioned Securities in respect of which we are not able to certify and as to which we understand an exchange for an interest in a permanent global Security or an exchange for and delivery of definitive Securities (or, if relevant, collection of any interest) cannot be made until we do so certify.

We understand that this certificate may be required in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.

Dated:

 

By:  

 

Name:  
Title:  

 

A-1-2


EXHIBIT A-2

FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CLEARSTREAM

IN CONNECTION WITH THE EXCHANGE OF A PORTION OF A

TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST

PAYABLE PRIOR TO THE EXCHANGE DATE

CERTIFICATE

ENCANA CORPORATION

(Insert title of sufficient description of Securities to be delivered)

This is to certify that based solely on written certifications that we have received in writing, by tested telex or by electronic transmission from each of the persons appearing in our records as persons entitled to a portion of the principal amount set forth below (our “Member Organizations”) substantially in the form attached hereto, as of the date hereof, [U.S.$] [                    ] principal amount of the above-captioned Securities (i) is owned by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source (“ United States person(s) ”), (ii) is owned by United States person(s) that are (a) foreign branches of United States financial institutions (financial institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred to as “financial institutions”) purchasing for their own account or for resale, or (b) United States person(s) who acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such financial institution has agreed, on its own behalf or through its agent, that we may advise EnCana Corporation or its agent that such financial institution will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by United States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) and, to the further effect, that financial institutions described in clause (iii) above (whether or not also described in clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.

As used herein, “United States” means the United States of America (including the states and the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.

We further certify that (i) we are not making available herewith for exchange (or, if relevant, collection of any interest) any portion of the temporary global Security representing the above-captioned Securities excepted in the above-referenced certificates of Member Organizations and (ii) as of the date hereof we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member Organizations

 

A-2-1


with respect to any portion of the part submitted herewith for exchange (or, if relevant, collection of any interest) are no longer true and cannot be relied upon as of the date hereof.

We understand that this certification is required in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.

Dated:

 

[EUROCLEAR BANK S.A./N.A, as Operator
of the Euroclear System]
[CLEARSTREAM]
By:  

 

Name:  
Title:  

 

A-2-2

Exhibit 4.14

ALBERTA ENERGY COMPANY LTD.,

as Issuer

AND

THE BANK OF NEW YORK,

as Trustee

 

 

Indenture

Dated as of September 15, 2000

 

 


ALBERTA ENERGY COMPANY LTD.*

Reconciliation and tie between Trust Indenture Act

of 1939 and Indenture, dated as of September 15, 2000

 

Trust Indenture
    Act Section
   Indenture Section
  § 310(a)(1)    607
           (a)(2)    607
           (b)    608
           (c)    N.A.
  § 311(a)    N.A.
           (b)    N.A.
           (c)    N.A.
  § 312(a)    N.A.
           (b)    N.A.
           (c)    701
  § 313(a)    N.A.
           (b)(1)    N.A.
           (b)(2)    N.A.
           (c)    N.A.
           (d)    N.A.
  § 314(a)    703
           (a)(4)    1004
           (b)    N.A.
           (c)(1)    102
           (c)(2)    102
           (d)    N.A.
           (e)    102
           (f)    N.A.
  § 315(a)    N.A.
           (b)    601
  § 316(a)(last sentence)    101 (“Outstanding”)
           (a)(1)(A)    502, 512
           (a)(1)(B)    513
           (a)(2)    N.A.
           (b)    508
           (c)    104(e)
  § 317(a)(1)    503
           (a)(2)    504
           (b)    1003
  § 318(a)    111
           (b)    N.A
           (c)    N.A.

N.A. means Not Applicable

 

 

* Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.


TABLE OF CONTENTS

 

         Page  

PARTIES

       1   

RECITALS OF THE CORPORATION

     1   

ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

     1   

SECTION 101.

  Definitions      1   

SECTION 102.

  Compliance Certificates and Opinions      12   

SECTION 103.

  Form of Documents Delivered to Trustee      12   

SECTION 104.

  Acts of Holders      13   

SECTION 105.

  Notices, etc., to Trustee and Corporation      14   

SECTION 106.

  Notice to Holders; Waiver      15   

SECTION 107.

  Effect of Headings and Table of Contents      16   

SECTION 108.

  Successors and Assigns      16   

SECTION 109.

  Separability Clause      16   

SECTION 110.

  Benefits of Indenture      16   

SECTION 111.

  Governing Law      16   

SECTION 112.

  Legal Holidays      17   

SECTION 113.

  Agent for Service; Submission to Jurisdiction; Waiver of Immunities      17   

SECTION 114.

  Conversion of Currency      17   

SECTION 115.

  Currency Equivalent      19   

SECTION 116.

  No Recourse Against Others      19   

SECTION 117.

  Multiple Originals      19   
ARTICLE 2 SECURITY FORMS   

SECTION 201.

  Forms Generally      19   

SECTION 202.

  Form of Trustee’s Certificate of Authentication      20   

SECTION 203.

  Securities Issuable in Global Form      20   
ARTICLE 3 THE SECURITIES   

SECTION 301.

  Amount Unlimited; Issuable in Series      21   

SECTION 302.

  Denominations      25   

SECTION 303.

  Execution, Authentication, Delivery and Dating      25   

SECTION 304.

  Temporary Securities      28   

SECTION 305.

  Registration, Registration of Transfer and Exchange      30   

SECTION 306.

  Mutilated, Destroyed, Lost and Stolen Securities      33   

SECTION 307.

  Payment of Principal and Interest; Interest Rights Preserved; Optional Interest Reset      35   

SECTION 308.

  Optional Extension of Stated Maturity      37   

SECTION 309.

  Persons Deemed Owners      38   

SECTION 310.

  Cancellation      39   

SECTION 311.

  Computation of Interest      39   

SECTION 312.

  Currency and Manner of Payments in Respect of Securities      39   


SECTION 313.

  Appointment and Resignation of Successor Exchange Rate Agent      43   

ARTICLE 4 SATISFACTION AND DISCHARGE

  

SECTION 401.

  Satisfaction and Discharge of Indenture      43   

SECTION 402.

  Application of Trust Money      45   
ARTICLE 5 REMEDIES   

SECTION 501.

  Events of Default      45   

SECTION 502.

  Acceleration of Maturity; Rescission and Annulment      47   

SECTION 503.

  Collection of Indebtedness and Suits for Enforcement by Trustee      48   

SECTION 504.

  Trustee May File Proofs of Claim      49   

SECTION 505.

  Trustee May Enforce Claims Without Possession of Securities      50   

SECTION 506.

  Application of Money Collected      50   

SECTION 507.

  Limitation on Suits      50   

SECTION 508.

  Unconditional Right of Holders to Receive Principal, Premium and Interest      51   

SECTION 509.

  Restoration of Rights and Remedies      51   

SECTION 510.

  Rights and Remedies Cumulative      51   

SECTION 511.

  Delay or Omission Not Waiver      51   

SECTION 512.

  Control by Holders      52   

SECTION 513.

  Waiver of Past Defaults      52   

SECTION 514.

  Waiver of Stay or Extension Laws      52   
ARTICLE 6 THE TRUSTEE   

SECTION 601.

  Notice of Defaults      53   

SECTION 602.

  Certain Rights of Trustee      53   

SECTION 603.

  Trustee Not Responsible for Recitals or Issuance of Securities      54   

SECTION 604.

  May Hold Securities      55   

SECTION 605.

  Money Held in Trust      55   

SECTION 606.

  Compensation and Reimbursement      55   

SECTION 607.

  Corporate Trustee Required; Eligibility      56   

SECTION 608.

  Resignation and Removal; Appointment of Successor      56   

SECTION 609.

  Acceptance of Appointment by Successor      57   

SECTION 610.

  Merger, Conversion, Consolidation or Succession to Business      58   

SECTION 611.

  Appointment of Authenticating Agent      59   

ARTICLE 7 HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND CORPORATION

     61   

SECTION 701.

  Corporation to Furnish Trustee Names and Addresses of Holders      61   

SECTION 702.

  Preservation of List of Names and Addresses of Holders      61   

SECTION 703.

  Disclosure of Names and Addresses of Holders      61   

SECTION 704.

  Reports by Trustee      61   

SECTION 705.

  Reports by the Corporation      62   

ARTICLE 8 CONSOLIDATION, AMALGAMATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

  

SECTION 801.

  Corporation May Amalgamate or Consolidate, etc., Only on Certain Terms      63   


SECTION 802.

  Successor Person Substituted      64   

SECTION 803.

  Assignment of Rights      64   

SECTION 804.

  Securities to Be Secured in Certain Events      64   

ARTICLE 9 SUPPLEMENTAL INDENTURES

  

SECTION 901.

  Supplemental Indentures Without Consent of Holders      65   

SECTION 902.

  Supplemental Indentures with Consent of Holders      66   

SECTION 903.

  Execution of Supplemental Indentures      67   

SECTION 904.

  Effect of Supplemental Indentures      67   

SECTION 905.

  Conformity with Trust Indenture Act      67   

SECTION 906.

  Reference in Securities to Supplemental Indentures      67   

SECTION 907.

  Notice of Supplemental Indentures      68   
ARTICLE 10 COVENANTS   

SECTION 1001.

  Payment of Principal, Premium, if any, and Interest      68   

SECTION 1002.

  Maintenance of Office or Agency      68   

SECTION 1003.

  Money for Securities Payments to Be Held in Trust      69   

SECTION 1004.

  Statement as to Compliance      71   

SECTION 1005.

  Additional Amounts      71   

SECTION 1006.

  Payment of Taxes and Other Claims      73   

SECTION 1007.

  Maintenance of Properties      73   

SECTION 1008.

  Corporate Existence      73   

SECTION 1009.

  Limitation on Liens      73   

SECTION 1010.

  Waiver of Certain Covenants      74   

ARTICLE 11 REDEMPTION OF SECURITIES

  

SECTION 1101.

  Applicability of Article      74   

SECTION 1102.

  Election to Redeem; Notice to Trustee      74   

SECTION 1103.

  Selection by Trustee of Securities to Be Redeemed      74   

SECTION 1104.

  Notice of Redemption      75   

SECTION 1105.

  Deposit of Redemption Price      76   

SECTION 1106.

  Securities Payable on Redemption Date      76   

SECTION 1107.

  Securities Redeemed in Part      76   

SECTION 1108.

  Tax Redemption      77   
ARTICLE 12 SINKING FUNDS   

SECTION 1201.

  Applicability of Article      77   

SECTION 1202.

  Satisfaction of Sinking Fund Payments with Securities      78   

SECTION 1203.

  Redemption of Securities for Sinking Fund      78   

ARTICLE 13 REPAYMENT AT OPTION OF HOLDERS

  

SECTION 1301.

  Applicability of Article      79   

SECTION 1302.

  Repayment of Securities      79   

SECTION 1303.

  Exercise of Option      80   

SECTION 1304.

  When Securities Presented for Repayment Become Due and Payable      80   

SECTION 1305.

  Securities Repaid in Part      81   

ARTICLE 14 DEFEASANCE AND COVENANT DEFEASANCE

  

SECTION 1401.

  Option to Effect Defeasance or Covenant Defeasance      81   

SECTION 1402.

  Defeasance and Discharge      81   

SECTION 1403.

  Covenant Defeasance      82   


SECTION 1404.

  Conditions to Defeasance or Covenant Defeasance      82   

SECTION 1405.

  Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions      84   

SECTION 1406.

  Reinstatement      85   

ARTICLE 15 ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES

     85   

SECTION 1501.

  Purposes for Which Meetings May Be Called      85   

SECTION 1502.

  Call, Notice and Place of Meetings      85   

SECTION 1503.

  Persons Entitled to Vote at Meetings      86   

SECTION 1504.

  Quorum; Action      86   

SECTION 1505.

  Determination of Voting Rights: Conduct and Adjournment of Meetings      87   

SECTION 1506.

  Counting Votes and Recording Action of Meetings      88   

TESTIMONIUM

       108   

SIGNATURES AND SEALS

     108   

FORM OF SECURITY

       EXHIBIT A   

FORMS OF CERTIFICATION

     EXHIBIT B   


INDENTURE, dated as of September 15, 2000, between ALBERTA ENERGY COMPANY LTD., a corporation amalgamated pursuant to the Business Corporations Act (Alberta) (herein called the “Corporation”), having its principal office at 3900, 421-7 th Avenue S.W., Calgary, Alberta T2P 4K9, and The Bank of New York, a New York Corporation, as trustee (herein called the “Trustee”).

RECITALS OF THE CORPORATION

The Corporation has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness (herein called the “Securities”), to be issued in one or more series as in this Indenture provided.

This Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, that are required to be part of this Indenture and shall, to the extent applicable, be governed by such provisions.

All things necessary to make this Indenture a valid agreement of the Corporation in accordance with its terms, have been done.

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows:

ARTICLE 1

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

SECTION 101. Definitions.

For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

(1) the terms defined in this Article or in any other Article have the meanings assigned to them in this Article or such other Article and include the plural as well as the singular;

(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein, and the terms “cash transaction” and “self-liquidating paper”, as used in Section 311 of the Trust Indenture Act, shall have the meanings assigned to them in the rules of the Commission adopted under the Trust Indenture Act;

 

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(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in Canada at the date of such computation; and

(4) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.

“Act”, when used with respect to any Holder, has the meaning specified in Section 104.

“Additional Amounts” has the meaning specified in Section 1005.

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“Authenticating Agent” means any Person appointed by the Trustee to act on behalf of the Trustee pursuant to Section 611 to authenticate Securities.

“Authorized Newspaper” means a newspaper, in the English language or in an official language of the country of publication, customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in each place in connection with which the term is used or in the financial community of each such place. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on any Business Day.

“Bearer Security” means any Security except a Registered Security.

“Board of Directors” means the board of directors of the Corporation or any duly authorized committee of such board.

“Board Resolution” means a copy of a resolution certified by the Corporate Secretary or an Assistant Corporate Secretary of the Corporation to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

“Business Day”, when used with respect to any Place of Payment or any other particular location referred to in this Indenture or in the Securities, means, unless otherwise specified with respect to any Securities pursuant to Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place

 

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of Payment or other location are authorized or obligated by law, regulation or executive order to close.

“Clearstream” means Clearstream Banking, société anonyme, or its successor.

“Commission” means the U.S. Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

“Common Depositary” has the meaning specified in Section 304.

“Consolidated Net Tangible Assets” means the total amount of assets of any Person on a consolidated basis, including deferred pension costs, after deducting therefrom (i) all current liabilities (excluding any indebtedness classified as a current liability), (ii) all goodwill, tradenames, trademarks, patents, unamortized debt discount and financing costs and all other like intangible assets and (iii) appropriate adjustments on account of minority interests of other persons holding shares of the Subsidiaries of such Person, all as set forth in the most recent balance sheet of such Person and its consolidated Subsidiaries (but, in any event, as of a date within 150 days of the date of determination) and computed in accordance with Canadian generally accepted accounting principles.

“Conversion Date” has the meaning specified in Section 312(d).

“Conversion Event” means the cessation of use of (i) a Foreign Currency both by the government of the country which issued such Foreign Currency and by a central bank or other public institution of or within the international banking community for the settlement of transactions, (ii) any currency unit (or composite currency) for the purposes for which it was established.

“Corporate Trust Office” means the principal corporate trust office of the Trustee, at which at any particular time its corporate trust business shall be administered, which office on the date of execution of this Indenture is located at 101 Barclay Street, New York, New York 10286, except that with respect to presentation of Securities for payment or for registration of transfer or exchange, such term shall mean the office or agency of the Trustee at which, at any particular time, its corporate agency business shall be conducted.

“corporation” includes corporations, associations, companies and business trusts.

“Corporation” means the Person named as the “Corporation” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Corporation” shall mean such successor Person.

“Corporation Request” or “Corporation Order” means a written request or order signed in the name of the Corporation by its Chairman, its President, any Vice President, its Treasurer or an Assistant Treasurer, and delivered to the Trustee.

 

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“Currency” means any currency or currencies, composite currency or currency unit or currency units, issued by the government of one or more countries or by any recognized confederation or association of such governments.

“Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.

“Defaulted Interest” has the meaning specified in Section 307.

“Depositary for Securities” means The Depository Trust Company, or any successor thereto.

“Dollar” or “$” means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time shall be legal tender for the payment of public and private debts.

“Dollar Equivalent of the Currency Unit” has the meaning specified in Section 312(g).

“Dollar Equivalent of the Foreign Currency” has the meaning specified in Section 312(f).

“Election Date” has the meaning specified in Section 312(h).

“Equity” of a Person means, on any date, the shareholders’ equity appearing in such Person’s most recent audited consolidated financial statements; provided that the total of the book value of issued and fully paid preferred shares shall be included and appraisal increments or appraisal surpluses shall not be included in Equity.

“Euroclear” means Morgan Guaranty Trust Company of New York, Brussels Office, or its successor as operator of the Euroclear System.

“Event of Default” has the meaning specified in Section 501.

“Exchange Date” has the meaning specified in Section 304.

“Exchange Rate Agent” means, with respect to Securities of or within any series, unless otherwise specified with respect to any Securities pursuant to Section 301, a New York Clearing House bank, designated pursuant to Section 301 or Section 313.

“Exchange Rate Officer’s Certificate” means a tested telex or a certificate setting forth (i) the applicable Market Exchange Rate and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if any) and interest, if any (on an aggregate basis and on the basis of a Security having the lowest denomination principal amount determined in accordance with Section 302 in the relevant Currency), payable with respect to a Security of any series on the basis of such Market Exchange Rate, sent (in the case of a telex) or signed (in the case of a certificate) by the Treasurer, any Vice President or any Assistant Treasurer of the Corporation.

 

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“Federal Bankruptcy Code” means the Bankruptcy Act of Title 11 of the United States Code, as amended from time to time.

“Foreign Currency” means any currency other than currency of the United States.

“Government Obligations” means, unless otherwise specified with respect to any series of Securities pursuant to Section 301, securities which are (a) direct obligations of the government which issued the currency in which the principal of or any premium or interest on such Securities of a particular series or any Additional Amounts in respect thereof are payable or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the government which issued the currency in which the Securities of such series or any Additional Amounts in respect thereof are payable, the payment of which is unconditionally guaranteed by such government, which, in either case, are full faith and credit obligations of such government payable in such currency and are not callable or redeemable at the option of the issuer thereof and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of any such Government Obligation held by such custodian for the account of a holder of a depositary receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest or principal of the Government Obligation evidenced by such depository receipt.

“Holder” means, in the case of a Registered Security, the Person in whose name a Security is registered in the Security Register.

“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, and shall include the terms of particular series of Securities established as contemplated by Section 301; provided, however, that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities for which such Person is Trustee established as contemplated by Section 301, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto executed and delivered after such Person had become such Trustee but to which such Person, as such Trustee, was not a party.

“Indexed Security” means a Security the terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount thereof at original issuance.

 

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“interest”, when used with respect to an Original Issue Discount Security, shall be deemed to mean interest payable after Maturity at the rate prescribed in such Original Issue Discount Security.

“Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.

“Lien” means, with respect to any properties or assets, any mortgage or deed of trust, pledge, hypothecation, assignment, security interest, lien, charge, encumbrance, preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever on or with respect to such properties or assets (including, without limitation, any conditional sale or other title retention agreement having substantially the same economic effect as any of the foregoing).

“Market Exchange Rate” means, unless otherwise specified with respect to any Securities pursuant to Section 301, (i) for any conversion involving a currency unit on the one hand and Dollars or any Foreign Currency on the other, the exchange rate between the relevant currency unit and Dollars or such Foreign Currency calculated by the method specified pursuant to Section 301 for the Securities of the relevant series, (ii) for any conversion of Dollars into any Foreign Currency, the noon (New York City time) buying rate for such Foreign Currency for cable transfers quoted in New York City as certified for customs purposes by the Federal Reserve Bank of New York, and (iii) for any conversion of one Foreign Currency into Dollars or another Foreign Currency, the spot rate at noon local time in the relevant market at which, in accordance with normal banking procedures, the Dollars or Foreign Currency into which conversion is being made could be purchased with the Foreign Currency from which conversion is being made from major banks located in either New York City, London, England or any other principal market for Dollars or such purchased Foreign Currency, in each case determined by the Exchange Rate Agent. Unless otherwise specified with respect to any Securities pursuant to Section 301, in the event of the unavailability of any of the exchange rates provided for in the foregoing clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or more major banks in New York City, London, England or another principal market for the Currency in question, or such other quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is more than one market for dealing in any Currency by reason of foreign exchange regulations or otherwise, the market to be used in respect of such Currency shall be that upon which a non-resident issuer of securities designated in such Currency would purchase such Currency in order to make payments in respect of such securities.

“Maturity”, when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption, notice of option to elect repayment or otherwise.

“Officer’s Certificate” means a certificate signed by any two of the Chairman, the President, a Vice President, the Treasurer, an Assistant Treasurer, the Corporate Secretary or an Assistant Corporate Secretary of the Corporation and delivered to the Trustee.

 

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“Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Corporation, including an employee of the Corporation, and who shall be acceptable to the Trustee.

“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.

“Outstanding”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except :

(i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

(ii) Securities, or portions thereof, for whose payment or redemption or repayment at the option of the Holder money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Corporation) in trust or set aside and segregated in trust by the Corporation (if the Corporation shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;

(iii) Securities, except to the extent provided in Sections 1402 and 1403, with respect to which the Corporation has effected defeasance and/or covenant defeasance as provided in Article Fourteen; and

(iv) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Corporation;

provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum purposes, and for the purpose of making the calculations required by Section 313 of the Trust Indenture Act, (i) the principal amount of an Original Issue Discount Security that may be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the amount of principal thereof that would be (or shall have been declared to be) due and payable, at the time of such determination, upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, (ii) the principal amount of any Security denominated in a Foreign Currency that may be counted in making such determination or calculation and that shall be deemed Outstanding for such purpose shall be equal to the Dollar equivalent, determined as of the date such Security is originally issued by the Corporation as set forth in an Exchange Rate Officer’s Certificate delivered to the Trustee, of the principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent as of such date of original issuance of the amount determined as provided in clause (i) above) of such Security, (iii) the principal amount of

 

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any Indexed Security that may be counted in making such determination or calculation and that shall be deemed outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise provided with respect to such Security pursuant to Section 301, and (iv) Securities owned by the Corporation or any other obligor upon the Securities or any Affiliate of the Corporation or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making such calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee certifies to the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Corporation or any other obligor upon the Securities or any Affiliate of the Corporation or such other obligor.

“Paying Agent” means any Person (including the Corporation acting as Paying Agent) authorized by the Corporation to pay the principal of (or premium, if any) or interest, if any, on any Securities on behalf of the Corporation.

“Permitted Liens” of any Person at any particular time means:

(i) Liens existing on the date hereof;

(ii) any Lien (except on fixed assets and on shares of a Subsidiary of such Person) to secure any indebtedness issued, assumed or guaranteed by such Person or any Subsidiary of such Person which is payable upon demand or which matures by its terms less than twelve months from the date of issuance, assumption or guarantee;

(iii) Liens in favor of such Person or a Subsidiary of such Person (but only so long as such Person is a Subsidiary of such Person);

(iv) Liens securing the Securities;

(v) Purchase Money Mortgages;

(vi) Liens on property or assets existing at the time of acquisition thereof by such Person, provided that such Liens were not incurred in anticipation of such acquisition;

(vii) Liens or obligations to incur Liens on property or assets of a corporation existing at the time such corporation becomes a Subsidiary of such Person, or is liquidated or merged into, or amalgamated or consolidated with, such Person or Subsidiary of such Person or at the time of the sale, lease or other disposition to such Person or Subsidiary of such Person of all or substantially all of the properties and assets of a corporation;

(viii) Liens upon property or facilities used in connection with, or necessarily incidental to, the purchase, sale, storage, transportation or distribution of oil or gas or the products derived from oil or gas; and

 

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(ix) any renewal, refunding or extension of any Lien referred to in the foregoing clauses (i) to (viii), provided that the principal amount of indebtedness secured thereby after such renewal, refunding or extension is not increased and the Lien is limited to the property or assets originally subject thereto and any improvements thereon.

“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

“Place of Payment” means, when used with respect to the Securities of or within any series, the place or places where the principal of (and premium, if any) and interest, if any, on such Securities are payable as specified as contemplated by Sections 301 and 1002.

“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.

“Publicly Traded Securities “ means (i) with respect to a corporation, securities of a corporation which are listed on any stock exchange and are entitled to share without limitation in a distribution of the assets of the corporation upon any liquidation, dissolution or winding-up of the corporation, and includes any securities convertible or exchangeable into such securities, and (ii) with respect to a partnership, means securities of a partnership which are listed on any stock exchange and represent income interests or capital interests in the partnership, and includes any securities convertible or exchangeable into such securities.

“Purchase Money Mortgage” of any Person means any Lien created upon any property or assets of the Person to secure or securing the whole or any part of the purchase price of such property or assets or the whole or any part of the cost of constructing or installing fixed improvements thereon or to secure or securing the repayment of money borrowed to pay the whole or any part of such purchase price or cost of any vendor’s privilege or Lien on such property or assets securing all or any part of such purchase price or cost including title retention agreements and leases in the nature of title retention agreements; provided that (1) the principal amount of money borrowed which is secured by such Lien does not exceed 100% of such purchase price or cost and (2) such Lien does not extend to or cover any other property other than such item of property and any improvements on such item.

“Redemption Date”, when used with respect to any Security to be redeemed, in whole or in part, means the date fixed for such redemption by or pursuant to this Indenture.

“Redemption Price”, when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.

“Registered Security” means any Security registered in the Security Register.

 

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“Regular Record Date” for the interest payable on any Interest Payment Date on the Registered Securities of or within any series means the date specified for that purpose as contemplated by Section 301.

“Repayment Date” means, when used with respect to any Security to be repaid at the option of the Holder, the date fixed for such repayment pursuant to this Indenture.

“Repayment Price” means, when used with respect to any Security to be repaid at the option of the Holder, the price at which it is to be repaid pursuant to this Indenture.

“Responsible Officer”, when used with respect to the Trustee, means the chairman or any vice-chairman of the board of directors, the chairman or any vice-chairman of the executive committee of the board of directors, the chairman of the trust committee, the president, any vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant trust officer, the controller or any assistant controller or any other officer of the Trustee customarily performing functions similar to those performed by any of the above-designated officers, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.

“Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture; provided, however, that if at any time there is more than one Person acting as Trustee under this Indenture, “Securities” with respect to the Indenture as to which such Person is Trustee shall have the meaning stated in the first recital of this Indenture and shall more particularly mean Securities authenticated and delivered under this Indenture, exclusive, however, of Securities of any series as to which such Person is not Trustee.

“Security Register” and “Security Registrar” have the respective meanings specified in Section 305.

“Shareholders’ Equity” means, with respect to a Subsidiary of the Corporation, the sum of (i) the shareholders’ or partners’ equity of such Subsidiary computed in accordance with Canadian generally accepted accounting principles and (ii) indebtedness created, issued or assumed by such Subsidiary to the Corporation for borrowed funds, which indebtedness by its terms is stated to be subordinated; provided that the total of the book value of issued and fully paid preferred shares shall be included and appraisal increments or appraisal surpluses shall not be included in Shareholders’ Equity.

“Special Record Date” for the payment of any Defaulted Interest on the Registered Securities of or within any series means a date fixed by the Trustee pursuant to Section 307.

“Stated Maturity”, when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security on which the principal of such Security or such installment of principal or interest is due and payable, as such date may be extended pursuant to the provisions of Section 308.

 

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“Subsidiary” of any Person means (1) a corporation more than 50% of the combined voting power of the outstanding Voting Stock of which is owned, directly or indirectly, by such Person or by one or more other Subsidiaries of such Person or by such Person and one or more Subsidiaries thereof or (2) a partnership of which at least a majority of the outstanding income interests or capital interests is at the time directly, indirectly or beneficially owned or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person; provided, however, such term shall not include (a) for the purpose of Section 1009 only, any Subsidiary if the Person’s share of Shareholders’ Equity therein does not at the time exceed 2% of the Equity of such Person, and (b) any entity (or its Subsidiaries) which has had Publicly Traded Securities at all times since it first would otherwise have become a Subsidiary.

“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was executed, except as provided in Section 905.

“Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder; provided , however, that if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean only the Trustee with respect to Securities of that series.

“United States” means, unless otherwise specified with respect to any Securities pursuant to Section 301, the United States of America (including the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.

“Valuation Date” has the meaning specified in Section 312(c).

“Vice President”, when used with respect to the Corporation or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president”.

“Voting Stock” of any Person means capital stock of such Person which ordinarily has voting power for the election of directors (or persons performing similar functions) of such Person, whether at all times or only so long as no senior class of securities has such voting power by reason of any contingency.

“Wholly-Owned Subsidiary” of any Person means a Subsidiary of such Person all of the outstanding capital stock or other ownership interests of which (other than directors’ qualifying shares) shall at the time be owned by such Person or by one or more Wholly-Owned Subsidiaries of such Person or by such Person and one or more Wholly-Owned Subsidiaries of such Person.

“Yield to Maturity” means the yield to maturity, computed at the time of issuance of a Security (or, if applicable, at the most recent redetermination of interest on such Security) and as set forth in such Security in accordance with generally accepted United States bond yield computation principles.

 

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SECTION 102. Compliance Certificates and Opinions.

Upon any application or request by the Corporation to the Trustee to take any action under any provision of this Indenture, the Corporation shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture (including any covenant compliance with which constitutes a condition precedent) relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.

Every certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture (other than pursuant to Section 1004) shall include:

(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;

(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and

(4) a statement as to whether, in the opinion of each such individual, such covenant or condition has been complied with.

SECTION 103. Form of Documents Delivered to Trustee.

In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

Any certificate or opinion of an officer of the Corporation may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Corporation stating that the information with respect to such factual matters is in the possession of the Corporation unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.

 

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Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

SECTION 104. Acts of Holders.

(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of the Outstanding Securities of all series or one or more series, as the case may be, may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing. If Securities of a series are issuable as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of such series may, alternatively, be embodied in and evidenced by the record of Holders of Securities of such series voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of Securities of such series duly called and held in accordance with the provisions of Article Fifteen, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Corporation. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to Section 602 hereof) conclusive in favor of the Trustee and the Corporation, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 1506.

(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient and in accordance with such reasonable rules as the Trustee may determine; and the Trustee may in any instance require further proof with respect to any of the matters referred in this Section.

(c) The ownership, principal amount and serial numbers of Securities held by any Person, and the date of commencement and the date of termination of holding the same, shall be proved by the Security Register.

(d) The ownership, principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may be proved by the production of such Bearer Securities or by a certificate executed, as depositary, by any trust company, bank or other depositary, wherever situated, if such certificate shall be deemed by the Trustee to be

 

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satisfactory, showing that at the date therein mentioned such Person had on deposit with such depositary, or exhibited to it, the Bearer Securities therein described; or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the Corporation may assume that such ownership of any Bearer Security continues until (1) another certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, or (2) such Bearer Security is produced to the Trustee by some other Person, or (3) such Bearer Security is surrendered in exchange for a Registered Security, or (4) such Bearer Security is no longer Outstanding. The ownership, principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may also be proved in any other manner that the Trustee deems sufficient.

(e) If the Corporation shall solicit from the Holders of Registered Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Corporation may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Corporation shall have no obligation to do so. Notwithstanding Section 316(c) of the Trust Indenture Act, such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation of Holders generally in connection therewith and not later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than eleven months after the record date.

(f) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Corporation in reliance thereon, whether or not notation of such action is made upon such Security.

SECTION 105. Notices, etc., to Trustee and Corporation.

Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other documents provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,

(1) the Trustee by any Holder or by the Corporation shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: Global Finance Unit, or

 

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(2) the Corporation by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Corporation addressed to it at the address of its principal office specified in the first paragraph of this Indenture or at any other address previously furnished in writing to the Trustee by the Corporation.

SECTION 106. Notice to Holders; Waiver.

Where this Indenture provides for notice of any event to Holders of Registered Securities by the Corporation or the Trustee, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided. Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or not such Holder actually receives such notice.

In case, by reason of the suspension of or irregularities in regular mail service or by reason of any other cause, it shall be impractical to mail notice of any event to Holders of Registered Securities when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be directed by the Corporation shall be deemed to be sufficient giving of such notice for every purpose hereunder.

Except as otherwise expressly provided herein or otherwise specified with respect to any Securities pursuant to Section 301, where this Indenture provides for notice to Holders of Bearer Securities of any event, such notice shall be sufficiently given to Holders of Bearer Securities if published in an Authorized Newspaper in The City of New York and in such other city or cities as may be specified in such Securities on a Business Day at least twice, the first such publication to be not earlier than the earliest date, and not later than the latest date, prescribed for the giving of such notice. Any such notice shall be deemed to have been given on the date of the first such publication.

In case, by reason of the suspension of publication of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause, it shall be impracticable to publish any notice to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be given with the approval of the Trustee shall constitute sufficient notice to such Holders of every purpose hereunder. Neither the failure to give notice by publication to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of such notice with respect to other Holders of Bearer Securities or the sufficiency of any notice to Holders of Registered Securities given as provided herein.

 

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Any request, demand, authorization, direction, notice consent or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.

Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

SECTION 107. Effect of Headings and Table of Contents.

The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

SECTION 108. Successors and Assigns.

All covenants and agreements in this Indenture by the Corporation shall bind its successors and assigns, whether so expressed or not.

SECTION 109. Separability Clause.

In case any provision in this Indenture or in any Security shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

SECTION 110. Benefits of Indenture.

Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto, any Authenticating Agent, any Paying Agent, any Securities Registrar and their successors hereunder and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.

SECTION 111. Governing Law.

This Indenture and the Securities shall be governed by and construed in accordance with the law of the State of New York. This Indenture is subject to the provisions of the Trust Indenture Act that are required to be part of this Indenture and shall, to the extent applicable, be governed by such provisions. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under the Trust Indenture Act to be a part of and govern this Indenture, the latter provision shall prevail. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or excluded, as the case may be.

 

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SECTION 112. Legal Holidays.

In any case where any Interest Payment Date, Redemption Date, sinking fund payment date or Stated Maturity or Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of any Security other than a provision in the Securities of any series which specifically states that such provision shall apply in lieu of this Section), payment of principal (or premium, if any) or interest, if any, need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date or sinking fund payment date, or at the Stated Maturity or Maturity; provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity, as the case may be.

SECTION 113. Agent for Service; Submission to Jurisdiction; Waiver of Immunities.

By the execution and delivery of this Indenture, the Corporation (i) acknowledges that it has irrevocably designated and appointed Alenco Inc., c/o CT Corporation System, 111 8 th Avenue, 13 th Floor, New York, New York as its authorized agent upon which process may be served in any suit or proceeding arising out of or relating to the Securities or this Indenture that may be instituted in any federal or state court in the City of New York or brought under federal or state securities laws or brought by the Trustee (whether in its individual capacity or in its capacity as Trustee hereunder), (ii) submits to the non-exclusive jurisdiction of any such court in any such suit or proceeding, and (iii) agrees that service of process upon Alenco Inc. and written notice of said service to the Corporation (mailed or delivered to the Corporation, attention: General Counsel, at its principal office specified in the first paragraph of this Indenture and in the manner specified in Section 105 hereof), shall be deemed in every respect effective service of process upon the Corporation in any such suit or proceeding. The Corporation further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of Alenco Inc. in full force and effect so long as any of the Securities shall be outstanding.

To the extent that the Corporation has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, the Corporation hereby irrevocably waives such immunity in respect of its obligations under this Indenture and the Securities, to the extent permitted by law.

SECTION 114. Conversion of Currency.

The Corporation covenants and agrees that the following provisions shall apply to conversion of currency in the case of the Securities and this Indenture:

(a) (i) If for the purposes of obtaining judgment in, or enforcing the judgment of, any court in any country, it becomes necessary to convert into any other currency (the “Judgment Currency”) an amount due or contingently due under the Securities of any

 

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series and this Indenture (the “Required Currency”), then the conversion shall be made at the rate of exchange prevailing on the Business Day before the day on which a final judgment which is not appealable or is not appealed is given or the order of enforcement is made, as the case may be (unless a court shall otherwise determine).

(ii) If there is a change in the rate of exchange prevailing between the Business Day before the day on which the judgment referred to in (i) above is given or an order of endorsement is made, as the case may be (or such other date as a court shall determine), and the date of receipt of the amount due, the Corporation shall pay such additional (or, as the case may be, such lesser) amount, if any, as may be necessary so that the amount paid in the judgment currency when converted at the rate of exchange prevailing on the date of receipt will produce the amount in the Required Currency originally due.

(b) In the event of the winding-up of the Corporation at any time while any amount or damages owing under the Securities and this Indenture, or any judgment or order rendered in respect thereof, shall remain outstanding, the Corporation shall indemnify and hold the Holders of Securities and the Trustee harmless against any deficiency arising or resulting from any variation in rates of exchange between (1) the date as of which the equivalent of the amount in the Required Currency (other than under this Subsection (b)) is calculated for the purposes of such winding-up and (2) the final date for the filing of proofs of claim in such winding-up. For the purpose of this Subsection (b) the final date for the filing of proofs of claim in the winding-up of the Corporation shall be the date fixed by the liquidator or otherwise in accordance with the relevant provisions of applicable law as being the latest practicable date as at which liabilities of the Corporation may be ascertained for such winding-up prior to payment by the liquidator or otherwise in respect thereto.

(c) The obligations contained in Subsections (a)(ii) and (b) of this Section shall constitute separate and independent obligations of the Corporation from its other obligations under the Securities and this Indenture, shall give rise to separate and independent causes of action against the Corporation shall apply irrespective of any waiver or extension granted by any Holder or Trustee from time to time and shall continue in full force and effect notwithstanding any judgment or order or the filing of any proof of claim in the winding-up of the Corporation for a liquidated sum in respect of amounts due hereunder (other than under Subsection (b) above) or under any such judgment or order. Any such deficiency as aforesaid shall be deemed to constitute a loss suffered by the Holders or the Trustee, as the case may be, and no proof or evidence of any actual loss shall be required by the Corporation or the applicable liquidator. In the case of Subsection (b) above, the amount of such deficiency shall not be deemed to be reduced by any variation in rates of exchange occurring between the said final date and the date of any liquidating distribution.

(d) The term rate(s) of exchange ” shall mean the Bank of Canada noon rate for purchases on the relevant date of the Required Currency with the Judgment Currency, as reported by Telerate on screen 3194 (or such other means of reporting the Bank of Canada noon rate as may be agreed upon by each of the parties to this Indenture) and includes any premiums and costs of exchange payable.

 

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SECTION 115. Currency Equivalent.

Except as otherwise provided in this Indenture, for purposes of the construction of the terms of this Indenture or of the Securities, in the event that any amount is stated herein in the Currency of one nation (the “First Currency”), as of any date such amount shall also be deemed to represent the amount in the Currency of any other relevant nation (the “Other Currency”) which is required to purchase such amount in the First Currency at the Bank of Canada noon rate as reported by Telerate on screen 3194 (or such other means of reporting the Bank of Canada noon rate as may be agreed upon by each of the parties to this Indenture) on the date of determination.

SECTION 116. No Recourse Against Others.

A director, officer, employee or shareholder, as such, of the Corporation shall not have any liability for any obligations of the Corporation under the Securities or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Holder shall waive and release all such liability. Such waiver and release shall be part of the consideration for the issue of the Securities.

SECTION 117. Multiple Originals.

The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Indenture.

ARTICLE 2

SECURITY FORMS

SECTION 201. Forms Generally.

The Registered Securities, if any, of each series and the Bearer Securities, if any, of each series and related coupons shall be in substantially the forms as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the Corporation. If the forms of Securities of any series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Corporate Secretary or an Assistant Corporate Secretary of the Corporation and delivered to the Trustee at or prior to the delivery of the Corporation Order contemplated by Section 303 for the authentication and delivery of such Securities. Any portion of the text of any Security may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Security.

Unless otherwise specified as contemplated by Section 301, Bearer Securities shall have interest coupons attached.

 

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The Trustee’s certificate of authentication on all Securities shall be in substantially the form set forth in this Article.

The definitive Securities shall be printed, lithographed or engraved on steel-engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities. A Form of Security is attached as Exhibit A hereto, but a Security may be in any form approved by the Board of Directors of the Corporation in any Board Resolution pursuant to Section 301.

SECTION 202. Form of Trustee’s Certificate of Authentication.

Subject to Section 611, the Trustee’s certificate of authentication shall be in substantially the following form:

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

Dated:                      

This is one of the Securities referred to in, and issued under, the within-mentioned Indenture.

 

THE BANK OF NEW YORK,

        as Trustee

By  

 

  Authorized Signatory

SECTION 203. Securities Issuable in Global Form.

If Securities of or within a series are issuable in global form, as specified as contemplated by Section 301, then, notwithstanding clause (10) of Section 301, any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities of such series from time to time endorsed thereon and that the aggregate amount of Outstanding Securities of such series represented thereby may from time to time be increased or decreased to reflect exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon instructions given by such Person or Persons as shall be specified therein or in the Corporation Order to be delivered to the Trustee pursuant to Section 303 or Section 304. Subject to the provisions of Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Corporation Order. If a Corporation Order pursuant to Section 303 or Section 304 has been, or simultaneously is, delivered, any instructions by the Corporation with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 102 and need not be accompanied by an Opinion of Counsel.

 

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The provisions of the last sentence of Section 303 shall apply to any Security represented by a Security in global form if such Security was never issued and sold by the Corporation and the Corporation delivers to the Trustee the Security in global form together with written instructions (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 303.

Notwithstanding the provisions of Section 307, unless otherwise specified as contemplated by Section 301, payment of principal of (and premium, if any) and interest, if any, on any Security in permanent global form shall be made to the Person or Persons specified therein.

Notwithstanding the provisions of Section 309 and except as provided in the preceding paragraph, the Corporation, the Trustee and any agent of the Corporation or the Trustee shall treat as the Holder of such principal amount of Outstanding Securities represented by a permanent global Security (i) in the case of a permanent global Security in registered form, the Holder of such permanent global Security in registered form, and (ii) in the case of a permanent global Security in bearer form, Euroclear or Clearstream.

ARTICLE 3

THE SECURITIES

SECTION 301. Amount Unlimited; Issuable in Series.

The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.

The Securities may be issued in one or more series and, except as otherwise provided in this Indenture, each such series shall be unsecured and shall rank pari passu with each other and with all other unsecured and unsubordinated indebtedness for borrowed money of the Corporation. There shall be established in one or more Board Resolutions or pursuant to authority granted by one or more Board Resolutions and, subject to Section 303, set forth in, or determined in the manner provided in, an Officer’s Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series, any or all of the following, as applicable (each of which (except for the matters set forth in clauses (1), (2) and (19) below), if so provided, may be determined from time to time by the Corporation with respect to unissued Securities of the series and set forth in such Securities of the series when issued from time to time):

(1) the specific designation of the Securities of the series (which shall distinguish the Securities of the series from all other series of Securities);

(2) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities

 

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authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or 1305);

(3) the extent and manner, if any, to which payment on or in respect of the Securities of the series will be senior or will be subordinated to the prior payment of other liabilities and obligations of the Corporation;

(4) the percentage or percentages of principal amount at which the Securities of the series will be issued;

(5) the date or dates, or the method by which such date or dates will be determined or extended, on which the principal (and premium, if any) of the Securities of the series is payable;

(6) the rate or rates (whether fixed or variable) at which the Securities of the series shall bear interest, if any, or the method by which such rate or rates shall be determined, the date or dates from which such interest shall accrue, or the method by which such date or dates shall be determined, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date, if any, for the interest payable on any Registered Security on any Interest Payment Date, or the method by which such date or dates shall be determined, whether and under what circumstances Additional Amounts on such Securities or any of them shall be payable, the notice, if any, to Holders regarding the determination of interest on a floating rate Security and the manner of giving such notice, and the basis upon which interest shall be calculated if other than on the basis of a 360-day year of twelve 30-day months;

(7) the place or places, if any, other than the Corporate Trust Office, where the principal of (and premium, if any) and interest, if any, on Securities of the series shall be payable, where any Registered Securities of the series may be surrendered for registration of transfer, where Securities of the series may be surrendered for exchange, where Securities of the series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable and, if different than the location specified in Section 105, the place or places where notices or demands to or upon the Corporation in respect of the Securities of the series and this Indenture may be served, the extent to which, or the manner in which, any interest payment or Additional Amounts on a global Security on an Interest Payment Date, will be paid and the manner in which any principal of or premium, if any, on any global Security will be paid;

(8) the period or periods within which, the price or prices at which, the Currency in which, and other terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Corporation, if the Corporation is to have that option;

(9) the obligation, if any, of the Corporation to redeem, repay or purchase Securities of the series pursuant to any sinking fund or analogous provision or at the option of a Holder thereof, and the period or periods within which, the price or prices at which, the Currency in which, and other terms and conditions upon which Securities of

 

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the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;

(10) if other than denominations of $1,000 and any integral multiple thereof, the denomination or denominations in which any Registered Securities of the series shall be issuable and, if other than denominations of $5,000, the denomination or denominations in which any Bearer Securities of the series shall be issuable;

(11) if other than the Trustee, the identity of each Security Registrar and/or Paying Agent;

(12) if other than the principal amount thereof, the portion of the principal amount of Securities of the series that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502 or the method by which such portion shall be determined;

(13) if other than Dollars, the Currency in which payment of the principal of (or premium, if any) or interest, if any, on the Securities of the series shall be payable or in which the Securities of the series shall be denominated and the particular provisions applicable thereto in accordance with, in addition to or in lieu of any of the provisions of Section 312;

(14) whether the amount of payments of principal of (or premium, if any) or interest, if any, on the Securities of the series may be determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on one or more Currencies, commodities, equity indices or other indices), and the manner in which such amounts shall be determined;

(15) whether the principal of (or premium, if any) or interest, if any, on the Securities of the series are to be payable, at the election of the Corporation or a Holder thereof, in a Currency other than that in which such Securities are denominated or stated to be payable, the period or periods within which (including the Election Date), and the terms and conditions upon which, such election may be made, and the time and manner of determining the exchange rate between the Currency in which such Securities are denominated or stated to be payable and the Currency in which such Securities are to be so payable, in each case in accordance with, in addition to or in lieu of any of the provisions of Section 312;

(16) the designation of the initial Exchange Rate Agent, if any;

(17) the applicability, if any, of Sections 1402 and/or 1403 to the Securities of the series and any provisions in modification of, in addition to or in lieu of any of the provisions of Article Fourteen that shall be applicable to the Securities of the series;

(18) provisions, if any, granting special rights to the Holders of Securities of the series upon the occurrence of such events as may be specified;

 

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(26) if the Securities of the series are to be convertible into or exchangeable for any securities of any Person (including the Corporation), the terms and conditions upon which such Securities will be so convertible or exchangeable; and

(27) any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to the series which do not apply generally to the Securities (which terms shall not be inconsistent with the requirements of the Trust Indenture Act or the provisions of this Indenture).

All Securities of any one series and the coupons appertaining to any Bearer Securities of such series shall be substantially identical except, in the case of Registered Securities, as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution (subject to Section 303) and set forth in such Officer’s Certificate or in any such indenture supplemental hereto. Not all Securities of any one series need be issued at the same time, and, unless otherwise provided, a series may be reopened for issuances of additional Securities of such series.

If any of the terms of the series are established by action taken pursuant to one or more Board Resolutions, such Board Resolutions shall be delivered to the Trustee at or prior to the delivery of the Officer’s Certificate setting forth the terms of the series.

SECTION 302. Denominations.

The Securities of each series shall be issuable in such denominations as shall be specified as contemplated by Section 301. With respect to Securities of any series denominated in Dollars, in the absence of any such provisions, the Registered Securities of such series, other than Registered Securities issued in global form (which may be of any denomination), shall be issuable in denominations of $1,000 and any integral multiple thereof and the Bearer Securities of such series, other than the Bearer Securities issued in global form (which may be of any denomination), shall be issuable in a denomination of $5,000. Securities not denominated in Dollars shall be issuable in such denominations as are established with respect to such Securities in or pursuant to this Indenture.

SECTION 303. Execution, Authentication, Delivery and Dating.

The Securities and any coupons appertaining thereto shall be executed on behalf of the Corporation by its Chairman, its President or a Vice President together with any one of the Corporate Secretary or Assistant Corporate Secretary and the Treasurer or an Assistant Treasurer of the Corporation, under its corporate seal reproduced thereon. The signature of any of these officers on the Securities or coupons may be the manual or facsimile signatures of the present or any future such authorized officer and may be imprinted or otherwise reproduced on the Securities or coupons.

Securities or coupons bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Corporation shall bind the Corporation, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or coupons or did not hold such offices at the date of such Securities or coupons.

 

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At any time and from time to time after the execution and delivery of this Indenture, the Corporation may deliver Securities of any series together with any coupon appertaining thereto, executed by the Corporation to the Trustee for authentication, together with a Corporation Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Corporation Order shall authenticate and deliver such Securities; provided, however, that, in connection with its original issuance, no Bearer Security shall be mailed or otherwise delivered to any location in the United States; and provided further that, unless otherwise specified with respect to any series of Securities pursuant to Section 301, a Bearer Security may be delivered in connection with its original issuance only if the Person entitled to receive such Bearer Security shall have furnished a certificate in the form set forth in Exhibit B-l to this Indenture, dated no earlier than 15 days prior to the earlier of the date on which such Bearer Security is delivered and the date on which any temporary Security first becomes exchangeable for such Bearer Security in accordance with the terms of such temporary Security and this Indenture. If any Security shall be represented by a permanent global Bearer Security, then, for purposes of this Section and Section 304, the notation of a beneficial owner’s interest therein upon original issuance of such Security or upon exchange of a portion of a temporary global Security shall be deemed to be delivery in connection with its original issuance of such beneficial owner’s interest in such permanent global Security. Except as permitted by Section 306, the Trustee shall not authenticate and deliver any Bearer Security unless all appurtenant coupons for interest then matured have been detached and cancelled. If not all the Securities of any series are to be issued at one time and if the Board Resolution or supplemental indenture establishing such series shall so permit, such Corporation Order may set forth procedures acceptable to the Trustee for the issuance of such Securities and determining terms of particular Securities of such series such as interest rate, stated maturity, date of issuance and date from which interest shall accrue.

At any time and from time to time after the execution and delivery of this Indenture, the Corporation may deliver Securities of any series, executed by the Corporation to the Trustee for authentication, together with a Corporation Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Corporation Order shall authenticate and deliver such Securities.

In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Sections 315(a) through 315(d) of the Trust Indenture Act) shall be fully protected in relying upon, an Opinion of Counsel stating:

(a) that the form or forms of such Securities have been established in conformity with the provisions of this Indenture;

(b) that the terms of such Securities have been established in conformity with the provisions of this Indenture;

(c) that such Securities, when completed by appropriate insertions and executed and delivered by the Corporation to the Trustee for authentication in accordance with this Indenture, authenticated and delivered by the Trustee in accordance with this Indenture and issued by the Corporation in the manner and subject to any conditions

 

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specified in such Opinion of Counsel, will constitute the legal, valid and binding obligations of the Corporation, enforceable in accordance with their terms, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or transfer and other similar laws of general applicability relating to or affecting the enforcement of creditors’ rights, (ii) general equitable principles and (iii) such other qualifications as such counsel shall conclude do not materially affect the rights of Holders of such Securities and any coupons;

(d) that all laws and requirements in respect of the execution and delivery by the Corporation of such Securities, any coupons and of the supplemental indentures, if any, have been complied with and that authentication and delivery of such Securities and the execution and delivery of the supplemental indenture, if any, by the Trustee will not violate the terms of the Indenture;

(e) that the Corporation has the corporate power to issue such Securities and has duly taken all necessary corporate action with respect to such issuance; and

(f) that the issuance of such Securities will not contravene the articles of incorporation or by-laws of the Corporation.

Notwithstanding the provisions of Section 301 and of the preceding two paragraphs, if not all the Securities of any series are to be issued at one time, it shall not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 301 or the Corporation Order and Opinion of Counsel otherwise required pursuant to the preceding two paragraphs prior to or at the time of issuance of each Security, but such documents shall be delivered prior to or at the time of issuance of the first Security of such series.

The Trustee shall not be required to authenticate and deliver any such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.

Each Registered Security shall be dated the date of its authentication and each Bearer Security shall be dated as of the date specified as contemplated by Section 301.

No Security or coupon shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein duly executed by the Trustee by manual signature of an authorized officer, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Corporation, and the Corporation shall deliver such Security to the Trustee for cancellation as provided in Section 310 together with a written statement (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Corporation, for all purposes of this

 

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Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.

SECTION 304. Temporary Securities.

Pending the preparation of definitive Securities of any series, the Corporation may execute, and upon Corporation Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as conclusively evidenced by their execution of such Securities. Such temporary Securities may be in global form.

Except in the case of temporary Securities in global form (which shall be exchanged in accordance with the provisions of the following paragraphs), if temporary Securities of any series are issued, the Corporation will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Corporation in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Corporation shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations; provided, however, that no definitive Bearer Security shall be delivered in exchange for a temporary Registered Security; and provided further that a definitive Bearer Security shall be delivered in exchange for a temporary Bearer Security only in compliance with the conditions set forth in Section 303. Until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.

If temporary Securities of any series are issued in global form, any such temporary global Security shall, unless otherwise provided therein, be delivered to the London, England office of a depositary or common depositary (the “Common Depositary”), for the benefit of Euroclear and Clearstream, for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they may direct).

Without unnecessary delay but in any event not later than the date specified in, or determined pursuant to the terms of, any such temporary global Security (the “Exchange Date”), the Corporation shall deliver to the Trustee definitive Securities, in aggregate principal amount equal to the principal amount of such temporary global Security, executed by the Corporation. On or after the Exchange Date such temporary global Security shall be surrendered by the Common Depositary to the Trustee, as the Corporation’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities without charge and the Trustee shall authenticate and deliver, in exchange for each portion of such temporary global Security, an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such temporary global Security to be exchanged. The definitive Securities to be delivered in exchange for any such temporary global

 

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Security shall be in registered form, permanent global bearer form or permanent global registered form, or any combination thereof, as specified as contemplated by Section 301, and, if any combination thereof is so specified, as requested by the beneficial owner thereof; provided, however, that, unless otherwise specified in such temporary global Security, upon such presentation by the Common Depositary, such temporary global Security is accompanied by a certificate dated the Exchange Date or a subsequent date and signed by Euroclear as to the portion of such temporary global Security held for its account then to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by Clearstream as to the portion of such temporary global Security held for its account then to be exchanged, each in the form set forth in Exhibit B-2 to this Indenture (or in such other form as may be established pursuant to Section 301); and provided, further that definitive Bearer Securities shall be delivered in exchange for a portion of a temporary global Security only in compliance with the requirements of Section 303.

Unless otherwise specified in such temporary global Security, the interest of a beneficial owner of Securities of a series in a temporary global Security shall be exchanged for definitive Securities of the same series and of like tenor following the Exchange Date when the account holder instructs Euroclear or Clearstream, as the case may be, to request such exchange on his behalf and delivers to Euroclear or Clearstream, as the case may be, a certificate in the form set forth in Exhibit B-1 to this Indenture (or in such other form as may be established pursuant to Section 301), dated no earlier than 15 days prior to the Exchange Date, copies of which certificate shall be available from the offices of Euroclear and Clearstream, the Trustee, any Authenticating Agent appointed for such series of Securities and each Paying Agent. Unless otherwise specified in such temporary global Security, any such exchange shall be made free of charge to the beneficial owners of such temporary global Security, except that a Person receiving definitive Securities must bear the cost of insurance, postage, transportation and the like in the event that such Person does not take delivery of such definitive Securities in person at the offices of Euroclear or Clearstream.

Until exchanged in full as hereinabove provided, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder, except that, unless otherwise specified as contemplated by Section 301, interest payable on a temporary global Security on an Interest Payment Date for Securities of such series occurring prior to the applicable Exchange Date shall be payable to Euroclear and Clearstream on such Interest Payment Date upon delivery by Euroclear and Clearstream to the Trustee of a certificate or certificates in the form set forth in Exhibit B-2 to this Indenture (or in such other form as may be established pursuant to Section 301), for credit without further interest thereon on or after such Interest Payment Date to the respective accounts of the Persons who are the beneficial owners of such temporary global Security on such Interest Payment Date and who have each delivered to Euroclear or Clearstream, as the case may be, a certificate dated no earlier than 15 days prior to the Interest Payment Date occurring prior to such Exchange Date in the form set forth in Exhibit B-1 to this Indenture (or in such other form as may be established pursuant to Section 301). Notwithstanding anything to the contrary herein contained, the certifications made pursuant to this paragraph shall satisfy the certification requirements of the preceding two paragraphs of this Section and of the third paragraph of Section 303 of this Indenture and the interests of the Persons who are the beneficial owners of the temporary global Security with

 

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respect to which such certification was made will be exchanged for definitive Securities of the same series and of like tenor on the Exchange Date or the date of certification if such date occurs after the Exchange Date, without further act or deed by such beneficial owners. Except as otherwise provided in this paragraph, no payments of principal (or premium, if any) or interest, if any, owing with respect to a beneficial interest in a temporary global Security will be made unless and until such interest in such temporary global Security shall have been exchanged for an interest in a definitive Security. Any interest so received by Euroclear and Clearstream and not paid as herein provided shall be returned to the Trustee no later than one month prior to the expiration of two years after such Interest Payment Date in order to be repaid to the Corporation in accordance with Section 1003.

SECTION 305. Registration, Registration of Transfer and Exchange.

The Corporation shall cause to be kept at the Corporate Trust Office of the Trustee a register for each series of Registered Securities (the registers maintained in the Corporate Trust Office of the Trustee and in any other office or agency of the Corporation in a Place of Payment being herein sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Corporation shall provide for the registration of Securities and of transfers of Securities. The Security Register shall be in written form or any other form capable of being converted into written form within a reasonable time. At all reasonable times, the Security Register for each series shall be open to inspection by the applicable security registrar (the “Security Registrar”). The Trustee is hereby initially appointed as Security Registrar for the purpose of registering Registered Securities and transfers of Registered Securities as herein provided. The Corporation shall have the right to remove and replace from time to time the Security Registrar for any series of Securities; provided , that , no such removal or replacement shall be effective until a successor Security Registrar with respect to such series of Registered Securities shall have been appointed by the Corporation and shall have accepted such appointment by the Corporation. In the event that the Trustee shall not be or shall cease to be the Security Registrar with respect to a series of Securities, it shall have the right to examine the Security Register for such series at all reasonable times. There shall be only one Security Register for such series of Securities.

Upon surrender for registration of transfer of any Registered Security of any series at the office or agency in a Place of Payment for that series, the Corporation shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee, one or more new Registered Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor.

At the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series, of any authorized denomination and of a like aggregate principal amount, upon surrender of the Registered Securities to be exchanged at such office or agency. Whenever any Registered Securities are so surrendered for exchange, the Corporation shall execute, and the Trustee shall authenticate and deliver, the Registered Securities, which the Holder making the exchange is entitled to receive. Unless otherwise specified with respect to any series of Securities as contemplated by Section 301, Bearer Securities may not be issued in exchange for Registered Securities.

 

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If (but only if) expressly permitted in or pursuant to the applicable Board Resolution and (subject to Section 303) set forth in the applicable Officer’s Certificate, or in any indenture supplemental hereto, delivered as contemplated by Section 301, at the option of the Holder, Bearer Securities of any series may be exchanged for Registered Securities of the same series of any authorized denomination and of a like aggregate principal amount and tenor, upon surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons and all matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon or coupons or matured coupon or coupons in default, any such permitted exchange may be effected if the Bearer Securities are accompanied by payment in funds acceptable to the Corporation in an amount equal to the face amount of such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Corporation and the Trustee if there is furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to any Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in Section 1002, interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or agency in a permitted exchange for a Registered Security of the same series and like tenor after the close of business at such office or agency on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed date for payment, as the case may be, and interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture.

Whenever any Registered Securities are so surrendered for exchange, the Corporation shall execute, and the Trustee shall authenticate and deliver, the Registered Securities which the Holder making the exchange is entitled to receive.

Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 301, any permanent global Security shall be exchangeable only as provided in this paragraph and the immediately following paragraph. If any beneficial owner of an interest in a permanent global Security is entitled to exchange such interest for Securities of such series and of like tenor and principal amount of another authorized form and denomination, as specified as contemplated by Section 301 and provided that any applicable notice provided in the permanent global Security shall have been given, then without unnecessary delay but in any event not later than the earliest date on which such interest may be so exchanged, the Corporation shall deliver to the Trustee definitive Securities in aggregate principal amount equal to the principal amount of such beneficial owner’s interest in such permanent global Security, executed by the Corporation. On or after the earliest date on which such interests may be so exchanged, such permanent global Security shall be surrendered by the Common Depositary or such other

 

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depositary as shall be specified in the Corporation Order with respect thereto to the Trustee, as the Corporation’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities without charge, and the Trustee shall authenticate and deliver, in exchange for each portion of such permanent global Security, an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such permanent global Security to be exchanged, which (unless such Securities are not issuable both as Bearer Securities and as Registered Securities, in which case the definitive Securities exchanged for the global Security shall be issuable only in the form in which the Securities are issuable, as provided in or pursuant to this Indenture) shall be in the form of Bearer Securities or Registered Securities, or any combination thereof, as shall be specified by the beneficial owner thereof; provided, however, that no such exchanges may occur during a period beginning at the opening of business 15 days before any selection of Securities to be redeemed and ending on the relevant Redemption Date if the Security for which exchange is requested may be among those selected for redemption; and provided, further, that no Bearer Security delivered in exchange for a portion of a permanent global Security shall be mailed or otherwise delivered to any location in the United States. If a Registered Security is issued in exchange for any portion of a permanent global Security after the close of business at the office or agency where such exchange occurs on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but will be payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the Person to whom interest in respect of such portion of such permanent global Security is payable in accordance with the provisions of this Indenture.

If at any time the Depositary for Securities of a series notifies the Corporation that it is unwilling, unable or no longer qualifies to continue as Depositary for Securities of such series or if at any time the Depositary for Securities for such series shall no longer be registered or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, the Corporation shall appoint a successor depositary with respect to the Securities for such series. If a successor to the Depositary for Securities is not appointed by the Corporation within 90 days after the Corporation receives such notice or becomes aware of such condition, as the case may be, the Corporation’s election pursuant to Section 301 shall no longer be effective with respect to the Securities for such series and the Corporation will execute, and the Trustee, upon receipt of a Corporation Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver Securities of such series in definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the global Security or Securities representing such series in exchange for such global Security or Securities.

The Corporation may at any time and in its sole discretion determine that the Securities of any series issued in the form of one or more global Securities shall no longer be represented by such global Security or Securities. In such event the Corporation will execute, and the Trustee, upon receipt of a Corporation Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver Securities of such series in

 

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definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the global Security or Securities representing such series in exchange for such global Security or Securities.

Upon the exchange of a global Security for Securities in definitive registered form, such global Security shall be cancelled by the Trustee. Securities issued in exchange for a global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the depositary for such global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee in writing. The Trustee shall deliver such Securities to the persons in whose names such Securities are so registered.

All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Corporation evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.

Every Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Corporation or the Security Registrar) be duly endorsed, or be accompanied by a written instrument of transfer, in form satisfactory to the Corporation and the Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.

No service charge shall be made for any registration of transfer or exchange of Securities, but the Corporation may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.

The Corporation shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the selection for redemption of Securities of that series under Section 1103 or 1203 and ending at the close of business on (A) if Securities of the series are issuable only as Registered Securities, the day of the mailing of the relevant notice of redemption and (B) if Securities of the series are issuable as Bearer Securities, the day of the first publication of the relevant notice of redemption or, if Securities of the series are also issuable as Registered Securities and there is no publication, the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Registered Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part, or (iii) to exchange any Bearer Security so selected for redemption except that, to the extent provided with respect to such Bearer Security, such Bearer Security may be exchanged for a Registered Security of that series and like tenor; provided that such Registered Security shall be immediately surrendered for redemption with written instruction for payment consistent with the provisions of this Indenture, or (iv) to issue, register the transfer of or exchange any Security which has been surrendered for repayment at the option of the Holder, except the portion, if any, of such Security not to be so repaid.

SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.

 

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If any mutilated Security or a Security with a mutilated coupon appertaining to it is surrendered to the Trustee, the Corporation shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to the surrendered Security, or, in case any such mutilated Security or coupon has become due and payable, the Corporation in its discretion may, instead of issuing a new Security, with coupons corresponding to the coupons, if any, appertaining to the surrendered Security, pay such Security.

If there shall be delivered to the Corporation and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security or coupon and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Corporation or the Trustee that such Security or coupon has been acquired by a bona fide purchaser, the Corporation shall execute and upon Corporation Order the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security or in exchange for the Security for which a destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed, lost or stolen), a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.

Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Corporation in its discretion may, instead of issuing a new Security, pay such Security, with coupons corresponding to the coupons, if any, appertaining to such mutilated, destroyed, lost or stolen Security or to the Security to which such mutilated, destroyed, lost or stolen coupon appertains, pay such Security or coupon; provided, however, that payment of principal of (and premium, if any) and interest, if any, on Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at an office or agency located outside the United States and, unless otherwise specified as contemplated by Section 301, any interest on Bearer Securities shall be payable only upon presentation and surrender of the coupons appertaining thereto.

Upon the issuance of any new Security under this Section, the Corporation may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

Every new Security of any series with its coupons, if any, issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Security or in exchange for a Security to which a mutilated, destroyed, lost or stolen coupon appertains, shall constitute an original contractual obligation of the Corporation, whether or not the mutilated, destroyed, lost or stolen Security and its coupons, if any, or the mutilated, destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series and their coupons, if any, duly issued hereunder.

The provisions of this Section, as amended or supplemented pursuant to this Indenture with respect to particular Securities or generally, are exclusive and shall preclude (to

 

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the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons.

SECTION 307. Payment of Principal and Interest; Interest Rights Preserved; Optional Interest Reset.

(a) Unless otherwise provided as contemplated by Section 301 with respect to any series of Securities, interest, if any, on any Registered Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest at the office or agency of the Corporation maintained for such purpose pursuant to Section 1002; provided, however, that each installment of the principal of (and premium, if any, on) and interest, if any, on any Registered Security may at the Corporation’s option be paid by (i) mailing a check for such interest, payable to or upon the written order of the Person entitled thereto pursuant to Section 309, to the address of such Person as it appears on the Security Register or (ii) wire transfer to an account located in the United States maintained by the payee (with wire transfer instructions provided to the Trustee not less than 15 days prior to payment of interest by wire transfer); provided further, that principal paid in relation to any Security redeemed at the option of the Corporation pursuant to Article Eleven, or paid at Maturity, shall be paid to the holder of such Security only upon presentation and surrender of such Security to such office or agency referred to in this Section 307(a).

Unless otherwise provided as contemplated by Section 301 with respect to the Securities of any series, payment of interest, if any, may be made, in the case of a Bearer Security, by transfer to an account located outside the United States maintained by the payee.

Unless otherwise provided as contemplated by Section 301, every permanent global Security will provide that interest, if any, payable on any Interest Payment Date will be paid to each of Euroclear and Clearstream with respect to that portion of such permanent global Security held for its account by the Common Depositary, for the purpose of permitting each of Euroclear and Clearstream to credit the interest, if any, received by it in respect of such permanent global Security to the accounts of the beneficial owners thereof.

Any interest on any Registered Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such defaulted interest and, if applicable, interest on such defaulted interest (to the extent lawful) at the rate specified in the Securities of such series (such defaulted interest and, if applicable, interest thereon herein collectively called “Defaulted Interest”) may be paid by the Corporation, at its election in each case, as provided in clause (1) or (2) below:

(1) The Corporation may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Corporation shall notify the Trustee in writing of the amount of Defaulted Interest

 

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proposed to be paid on each Registered Security of such series and the date of the proposed payment, and at the same time the Corporation shall deposit with the Trustee an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Corporation of such Special Record Date and, in the name and at the expense of the Corporation, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given in the manner provided in Section 106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so given, such Defaulted Interest shall be paid to the Persons in whose name the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2).

(2) The Corporation may make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Corporation to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.

(b) The provisions of this Section 307(b) may be made applicable to any series of Securities pursuant to Section 301 (with such modifications, additions or substitutions as may be specified pursuant to such Section 301). The interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) on any Security of such series may be reset by the Corporation on the date or dates specified on the face of such Security (each an “Optional Reset Date”). The Corporation may exercise such option with respect to such Security by notifying the Trustee of such exercise at least 50 but not more than 60 days prior to an Optional Reset Date for such Security, which notice shall specify the information to be included in the Reset Notice (as defined). Not later than 40 days prior to each Optional Reset Date, the Trustee shall transmit, in the manner provided for in Section 106, to the Holder of any such Security a notice (the “Reset Notice”) indicating whether the Corporation has elected to reset the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable), and if so (i) such new interest rate (or such new spread or spread multiplier, if applicable) and (ii) the provisions, if any, for redemption during the period from such Optional Reset Date to the next Optional Reset Date or if there is no such next Optional Reset Date, to the Stated Maturity Date of such Security (each such period a “Subsequent Interest Period”), including the date or dates on which or the period or periods during which and the price or prices at which such redemption may occur during the Subsequent Interest Period.

 

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Notwithstanding the foregoing, not later than 20 days prior to the Optional Reset Date, the Corporation may, at its option, revoke the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) provided for in the Reset Notice and establish an interest rate (or a spread or spread multiplier used to calculate such interest rate, if applicable) that is higher than the interest rate (or the spread or spread multiplier, if applicable) provided for in the Reset Notice, for the Subsequent Interest Period by causing the Trustee to transmit, in the manner provided for in Section 106, notice of such higher interest rate (or such higher spread or spread multiplier, if applicable) to the Holder of such Security. Such notice shall be irrevocable. All Securities with respect to which the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) is reset on an Optional Reset Date, and with respect to which the Holders of such Securities have not tendered such Securities for repayment (or have validly revoked any such tender) pursuant to the next succeeding paragraph, will bear such higher interest rate (or such higher spread or spread multiplier, if applicable).

The Holder of any such Security will have the option to elect repayment by the Corporation of the principal of such Security on each Optional Reset Date at a price equal to the principal amount thereof plus interest accrued to such Optional Reset Date. In order to obtain repayment on an Optional Reset Date, the Holder must follow the procedures set forth in Article Thirteen for repayment at the option of Holders except that the period for delivery or notification to the Trustee shall be at least 25 but not more than 35 days prior to such Optional Reset Date and except that, if the Holder has tendered any Security for repayment pursuant to the Reset Notice, the Holder may, by written notice to the Trustee, revoke such tender or repayment until the close of business on the tenth day before such Optional Reset Date.

Subject to the foregoing provisions of this Section and Section 305, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

SECTION 308. Optional Extension of Stated Maturity.

The provisions of this Section 308 may be made applicable to any series of Securities pursuant to Section 301 (with such modifications, additions or substitutions as may be specified pursuant to such Section 301). The Stated Maturity of any Security of such series may be extended at the option of the Corporation for the period or periods specified on the face of such Security (each an “Extension Period”) up to but not beyond the date set forth on the face of such Security. The Corporation may exercise such option with respect to any Security by notifying the Trustee of such exercise at least 50 but not more than 60 days prior to the Stated Maturity of such Security in effect prior to the exercise of such option (the “Original Stated Maturity”). If the Corporation exercises such option, the Trustee shall transmit, in the manner provided for in Section 106, to the Holder of such Security not later than 40 days prior to the Original Stated Maturity a notice (the “Extension Notice”) indicating (i) the election of the Corporation to extend the Stated Maturity, (ii) the new Stated Maturity, (iii) the interest rate, if any, applicable to the Extension Period and (iv) the provisions, if any, for redemption during such Extension Period. Upon the Trustee’s transmittal of the Extension Notice, the Stated Maturity of such Security shall be extended automatically and, except as modified by the

 

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Extension Notice and as described in the next paragraph, such Security will have the same terms as prior to the transmittal of such Extension Notice.

Notwithstanding the foregoing, not later than 20 days before the Original Stated Maturity of such Security, the Corporation may, at its option, revoke the interest rate provided for in the Extension Notice and establish a higher interest rate for the Extension Period by causing the Trustee to transmit, in the manner provided for in Section 106, notice of such higher interest rate to the Holder of such Security. Such notice shall be irrevocable. All Securities with respect to which the Stated Maturity is extended will bear such higher interest rate.

If the Corporation extends the Maturity of any Security, the Holder will have the option to elect repayment of such Security by the Corporation on the Original Stated Maturity at a price equal to the principal amount thereof, plus interest accrued to such date. In order to obtain repayment on the Original Stated Maturity once the Corporation has extended the Maturity thereof, the Holder must follow the procedures set forth in Article Thirteen for repayment at the option of Holders, except that the period for delivery or notification to the Trustee shall be at least 25 but not more than 35 days prior to the Original Stated Maturity and except that, if the Holder has tendered any Security for repayment pursuant to an Extension Notice, the Holder may by written notice to the Trustee revoke such tender for repayment until the close of business on the tenth day before the Original Stated Maturity.

SECTION 309. Persons Deemed Owners.

Prior to due presentment of a Registered Security for registration of transfer, the Corporation, the Trustee and any agent of any of the foregoing may treat the Person in whose name such Registered Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Sections 305 and 307) interest, if any, on such Registered Security and for all other purposes whatsoever, whether or not such Security be overdue, and none of the Corporation, the Trustee or any agent of any of the foregoing shall be affected by notice to the contrary.

Title to any Bearer Security and any coupons appertaining thereto shall pass by delivery. The Corporation, the Trustee and any agent of the Corporation or the Trustee may treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner of such Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Security or coupons be overdue, and none of the Corporation, the Trustee or any agent of the Corporation or the Trustee shall be affected by notice to the contrary.

The Depositary for Securities may be treated by the Corporation, the Trustee, and any agent of the Corporation or the Trustee as the owner of such global Security for all purposes whatsoever. None of the Corporation, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Security in global form or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

 

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Notwithstanding the foregoing, with respect to any global Security, nothing herein shall prevent the Corporation, the Trustee, or any agent of any of the foregoing from giving effect to any written certification, proxy or other authorization furnished by any depositary, as a Holder, with respect to such global Security or impair, as between such depositary and owners of beneficial interests in such global Security, the operation of customary practices governing the exercise of the rights of such depositary (or its nominee) as Holder of such global Security.

SECTION 310. Cancellation.

All Securities surrendered for payment, redemption, repayment at the option of the Holder, registration of transfer or exchange or for credit against any current or future sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All Securities so delivered to the Trustee shall be promptly cancelled by it. The Corporation may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Corporation may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Corporation has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. If the Corporation shall so acquire any of the Securities, however, then, unless provided otherwise in a supplemental indenture relating to a series of Securities, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are surrendered to the Trustee for cancellation. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures and certification of their disposal delivered to the Corporation unless by Corporation Order the Corporation shall direct that cancelled Securities be returned to it.

SECTION 311. Computation of Interest.

Except as otherwise specified as contemplated by Section 301 with respect to any Securities, interest, if any, on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months. For the purposes of disclosure under the Interest Act (Canada), the yearly rate of interest to which interest calculated under a Security for any period in any calendar year (the “calculation period”) is equivalent, is the rate payable under a Security in respect of the calculation period multiplied by a fraction the numerator of which is the actual number of days in such calendar year and the denominator of which is the actual number of days in the calculation period.

SECTION 312. Currency and Manner of Payments in Respect of Securities.

(a) With respect to Registered Securities of any series not permitting the election provided for in paragraph (b) below or the Holders of which have not made the election provided for in paragraph (b) below, and with respect to Bearer Securities of any series except as provided in paragraph (d) below, payment of the principal of (and premium, if any) and interest, if any, on any Registered or Bearer Security of such series will be made in the Currency in which such Registered or Bearer Security, as the case may be, is payable. The provisions of this

 

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Section 312 may be modified or superseded with respect to any Securities pursuant to Section 301.

(b) It may be provided pursuant to Section 301 with respect to Registered Securities of any series that Holders shall have the option, subject to paragraphs (d) and (e) below, to receive payments of principal of (or premium, if any) or interest, if any, on such Registered Securities in any of the Currencies which may be designated for such election by delivering to the Trustee a written election with signature guarantees and in the applicable form established pursuant to Section 301, not later than the close of business on the Election Date immediately preceding the applicable payment date. If a Holder so elects to receive such payments in any such Currency, such election will remain in effect for such Holder or any transferee of such Holder until changed by such Holder or such transferee by written notice to the Trustee (but any such change must be made not later than the close of business on the Election Date immediately preceding the next payment date to be effective for the payment to be made on such payment date and no such change of election may be made with respect to payments to be made on any Registered Security of such series with respect to which an Event of Default has occurred or with respect to which the Corporation has deposited funds pursuant to Article Four or Fourteen or with respect to which a notice of redemption has been given by the Corporation or a notice of option to elect repayment has been sent by such Holder or such transferee). Any Holder of any such Registered Security who shall not have delivered any such election to the Trustee not later than the close of business on the applicable Election Date will be paid the amount due on the applicable payment date in the relevant Currency as provided in Section 312(a). The Trustee shall notify the Exchange Rate Agent as soon as practicable after the Election Date of the aggregate principal amount of Registered Securities for which Holders have made such written election.

(c) Unless otherwise specified pursuant to Section 301, if the election referred to in paragraph (b) above has been provided for pursuant to Section 301, then, unless otherwise specified pursuant to Section 301, not later than the fourth Business Day after the Election Date for each payment date for Registered Securities of any series, the Exchange Rate Agent will deliver to the Corporation a written notice specifying, in the Currency in which Registered Securities of such series are payable, the respective aggregate amounts of principal of (and premium, if any) and interest, if any, on the Registered Securities to be paid on such payment date, specifying the amounts in such Currency so payable in respect of the Registered Securities as to which the Holders of Registered Securities of such series shall have elected to be paid in another Currency as provided in paragraph (b) above. If the election referred to in paragraph (b) above has been provided for pursuant to Section 301 and if at least one Holder has made such election, then, unless otherwise specified pursuant to Section 301, on the second Business Day preceding such payment date the Corporation will deliver to the Trustee for such series of Registered Securities an Exchange Rate Officer’s Certificate in respect of the Dollar or Foreign Currency payments to be made on such payment date. Unless otherwise specified pursuant to Section 301, the Dollar or Foreign Currency amount receivable by Holders of Registered Securities who have elected payment in a Currency as provided in paragraph (b) above shall be determined by the Corporation on the basis of the applicable Market Exchange Rate in effect on the third Business Day (the “Valuation Date”) immediately preceding each payment date, and such determination shall be conclusive and binding for all purposes, absent manifest error.

 

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(d) If a Conversion Event occurs with respect to a Foreign Currency in which any of the Securities are denominated or payable other than pursuant to an election provided for pursuant to paragraph (b) above, then with respect to each date for the payment of principal of (and premium, if any) and interest, if any, on the applicable Securities denominated or payable in such Foreign Currency occurring after the last date on which such Foreign Currency was used (the “Conversion Date”), the Dollar shall be the Currency of payment for use on each such payment date. Unless otherwise specified pursuant to Section 301, the Dollar amount to be paid by the Corporation to the Trustee and by the Trustee or any Paying Agent to the Holders of such Securities with respect to such payment date shall be, in the case of a Foreign Currency other than a currency unit, the Dollar Equivalent of the Foreign Currency or, in the case of a currency unit, the Dollar Equivalent of the Currency Unit, in each case as determined by the Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.

(e) Unless otherwise specified pursuant to Section 301, if the Holder of a Registered Security denominated in any Currency shall have elected to be paid in another Currency as provided in paragraph (b) above, and a Conversion Event occurs with respect to such elected Currency, such Holder shall receive payment in the Currency in which payment would have been made in the absence of such election; and if a Conversion Event occurs with respect to the Currency in which payment would have been made in the absence of such election, such Holder shall receive payment in Dollars as provided in paragraph (d) above.

(f) The “Dollar Equivalent of the Foreign Currency” shall be determined by the Exchange Rate Agent and shall be obtained for each subsequent payment date by converting the specified Foreign Currency into Dollars at the Market Exchange Rate on the Conversion Date.

(g) The “Dollar Equivalent of the Currency Unit” shall be determined by the Exchange Rate Agent and subject to the provisions of paragraph (h) below shall be the sum of each amount obtained by converting the Specified Amount of each Component Currency into Dollars at the Market Exchange Rate for such Component Currency on the Valuation Date with respect to each payment.

(h) For purposes of this Section 312 the following terms shall have the following meanings:

A “Component Currency” shall mean any Currency which, on the Conversion Date, was a component currency of the relevant currency unit.

A “Specified Amount” of a Component Currency shall mean the number of units of such Component Currency or fractions thereof which were represented in the relevant currency unit, on the Conversion Date. If after the Conversion Date the official unit of any Component Currency is altered by way of combination or subdivision, the Specified Amount of such Component Currency shall be divided or multiplied in the same proportion. If after the Conversion Date two or more Component Currencies are consolidated into a single currency, the respective Specified Amounts of such Component Currencies shall be replaced by an amount in such single Currency equal to the sum of the respective Specified Amounts of such consolidated Component Currencies expressed

 

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in such single Currency, and such amount shall thereafter be a Specified Amount and such single Currency shall thereafter be a Component Currency. If after the Conversion Date any Component Currency shall be divided into two or more currencies, the Specified Amount of such Component Currency shall be replaced by amounts of such two or more currencies, having an aggregate Dollar Equivalent value at the Market Exchange Rate on the date of such replacement equal to the Dollar Equivalent value of the Specified Amount of such former Component Currency at the Market Exchange Rate immediately before such division and such amounts shall thereafter be Specified Amounts and such currencies shall thereafter be Component Currencies. If, after the Conversion Date of the relevant currency unit, a Conversion Event (other than any event referred to above in this definition of “Specified Amount”) occurs with respect to any Component Currency of such currency unit and is continuing on the applicable Valuation Date, the Specified Amount of such Component Currency shall, for purposes of calculating the Dollar Equivalent of the Currency Unit, be converted into Dollars at the Market Exchange Rate in effect on the Conversion Date of such Component Currency.

“Election Date” shall mean the date for any series of Registered Securities as specified pursuant to clause (15) of Section 301 by which the written election referred to in paragraph (b) above may be made.

All decisions and determinations of the Exchange Rate Agent regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as specified above shall be in its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Corporation, the Trustee and all Holders of such Securities denominated or payable in the relevant Currency. The Exchange Rate Agent shall promptly give written notice to the Corporation and the Trustee of any such decision or determination.

In the event that the Corporation determines in good faith that a Conversion Event has occurred with respect to a Foreign Currency, the Corporation will immediately give written notice thereof to the Trustee and to the Exchange Rate Agent (and the Trustee will promptly thereafter give notice in the manner provided for in Section 106 to the affected Holders) specifying the Conversion Date. In the event the Corporation so determines that a Conversion Event has occurred with respect to any currency unit in which Securities are denominated or payable, the Corporation will immediately give written notice thereof to the Trustee and to the Exchange Rate Agent (and the Trustee will promptly thereafter give notice in the manner provided for in Section 106 to the affected Holders) specifying the Conversion Date and the Specified Amount of each Component Currency on the Conversion Date. In the event the Corporation determines in good faith that any subsequent change in any Component Currency as set forth in the definition of Specified Amount above has occurred, the Corporation will similarly give written notice to the Trustee and the Exchange Rate Agent.

The Trustee shall be fully justified and protected in relying and acting upon information received by it from the Corporation and the Exchange Rate Agent and shall not otherwise have any duty or obligation to determine the accuracy or validity of such information independent of the Corporation or the Exchange Rate Agent.

 

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SECTION 313. Appointment and Resignation of Successor Exchange Rate Agent.

(a) Unless otherwise specified pursuant to Section 301, if and so long as the Securities of any series (i) are denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long as it is required under any other provision of this Indenture, then the Corporation will maintain with respect to each such series of Securities, or as so required, at least one Exchange Rate Agent. The Corporation will cause the Exchange Rate Agent to make the necessary foreign exchange determinations at the time and in the manner specified pursuant to Section 301 for the purpose of determining the applicable rate of exchange and, if applicable, for the purpose of converting the issued Currency into the applicable payment Currency for the payment of principal (and premium, if any) and interest, if any, pursuant to Section 312.

(b) The Corporation shall have the right to remove and replace from time to time the Exchange Rate Agent for any series of Securities. No resignation or removal of the Exchange Rate Agent and no appointment of a successor Exchange Rate Agent pursuant to this Section shall become effective until the acceptance of appointment by the successor Exchange Rate Agent as evidenced by a written instrument delivered to the Corporation and the Trustee.

(c) If the Exchange Rate Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Exchange Rate Agent for any cause with respect to the Securities of one or more series, the Corporation, by or pursuant to a Board Resolution, shall promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to the Securities of that or those series (it being understood that any such successor Exchange Rate Agent may be appointed with respect to the Securities of one or more or all of such series and that, unless otherwise specified pursuant to Section 301, at any time there shall only be one Exchange Rate Agent with respect to the Securities of any particular series that are originally issued by the Corporation on the same date and that are initially denominated and/or payable in the same Currency).

ARTICLE 4

SATISFACTION AND DISCHARGE

SECTION 401. Satisfaction and Discharge of Indenture.

This Indenture shall upon a Corporation Request cease to be of further effect with respect to any series of Securities specified in such Corporation Request (except as to any surviving rights of registration of transfer or exchange of Securities of such series expressly provided for herein or pursuant hereto and any right to receive Additional Amounts as contemplated by Section 1005) and the Trustee, at the expense of the Corporation, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series when

(1) either

 

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(A) all Securities of such series theretofore authenticated and delivered (other than (i) coupons appertaining to Bearer Securities surrendered for exchange for Registered Securities and maturing after such exchange, whose surrender is not required or has been waived as provided in Section 305, (ii) Securities and coupons of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306, (iii) coupons appertaining to Securities called for redemption and maturing after the relevant Redemption Date, whose surrender has been waived as provided in Section 1106, and (iv) Securities and coupons of such series for whose payment money has theretofore been deposited in trust with the Trustee or any Paying Agent or segregated and held in trust by the Corporation and thereafter repaid to the Corporation, as provided in Section 1003) have been delivered to the Trustee for cancellation; or

(B) all Securities of such series and, in the case of (i) or (ii) below, not theretofore delivered to the Trustee for cancellation

(i) have become due and payable, or

(ii) will become due and payable at their Stated Maturity within one year, or

(iii) if redeemable at the option of the Corporation, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Corporation,

and the Corporation, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose an amount in the Currency in which the Securities of such series are payable, sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest, if any, to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;

(2) the Corporation has paid or caused to be paid all other sums payable hereunder by the Corporation with respect to the Outstanding Securities of such series, and

(3) the Corporation has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with.

Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Corporation to the Trustee under Section 606, the obligations of the Trustee to any Authenticating Agent under Section 611 and, if money shall have been deposited with the

 

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Trustee pursuant to subclause (B) of clause (1) of this Section and the obligations of the Trustee under Section 402 and the last paragraph of Section 1003 shall survive.

SECTION 402. Application of Trust Money.

Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Corporation acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest, if any, for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.

ARTICLE 5

REMEDIES

SECTION 501. Events of Default.

“Event of Default”, wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), unless such event is specifically deleted or modified in or pursuant to a supplemental indenture, Board Resolution or Officer’s Certificate establishing the terms of such series pursuant to this Indenture:

(1) default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity; or

(2) default in the payment of any interest or Additional Amounts on any Security of that series, or any related coupon, when such interest, coupon or Additional Amounts become due and payable, and continuance of such default for a period of 30 days; or

(3) default in the deposit of any sinking fund payment, when such payment becomes due by the terms of the Securities of that series and Article Twelve; or

(4) default in the performance, or breach, of any covenant or warranty of the Corporation in this Indenture in respect of the Securities of that series (other than a covenant or warranty a default in the performance of which, or the breach of which, is specifically dealt with elsewhere in this Indenture), and continuance of such default or breach for a period of 60 days after there has been given to the Corporation by the Trustee to the attention of the General Counsel to the Corporation via facsimile, with a hard copy then sent, by registered or certified mail, or to the Corporation and the Trustee by the Holders of at least 25% in principal amount of all Outstanding Securities of any

 

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series affected thereby, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or

(5) if an event of default (as defined in any indenture or instrument under which the Corporation or a Subsidiary has, at the time of the Indenture or shall thereafter have, outstanding any indebtedness for borrowed money) shall happen and be continuing and such indebtedness shall have been accelerated so that an amount in excess of US$75,000,000 shall be or become due and payable prior to the date on which the same would otherwise have become due and payable (the “accelerated indebtedness”), and such acceleration shall not be rescinded or annulled, or such event of default under such indenture or instrument shall not be remedied or cured, whether by payment or otherwise, or waived by the holders of such indebtedness, then (a) if the accelerated indebtedness shall be as a result of an event of default which is not related to the failure to pay principal or interest on the terms, at the times, and on the conditions set out in any such indenture or instrument, it shall not be considered an Event of Default for purposes of the Indenture until 30 days after written notice thereof shall have been given to the Corporation by the Trustee, or to the Corporation and the Trustee by the holders of not less than 25% in aggregate principal amount of Outstanding Securities, or (b) if the accelerated indebtedness shall occur as a result of an event of default which is related to the failure to pay principal or interest on the terms, at the times, and on the conditions set out in any such indenture or instrument, then (i) if such accelerated indebtedness is non-recourse to the borrower, it shall not be considered an Event of Default for purposes of this Indenture or (ii) if such accelerated indebtedness is recourse to the borrower, any requirement in connection with such event of default for the giving of notice or the lapse of time or the happening of any further condition, event or act under such other indenture or instrument shall be applicable together with an additional seven days before being considered an Event of Default for purposes of this Indenture; or

(6) the entry of a decree or order by a court having jurisdiction in the premises adjudging the Corporation a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Corporation under the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) or any other applicable insolvency law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Corporation or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days; or

(7) the institution by the Corporation of proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) or any other applicable insolvency law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Corporation or of any substantial part of its property, or the making by it of an assignment for the benefit

 

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of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due; or

(8) any other Event of Default provided with respect to Securities of that series.

SECTION 502. Acceleration of Maturity; Rescission and Annulment.

If an Event of Default described in clause (1), (2) or (3) of Section 501 with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may, subject to subordination provisions, if any, declare the principal amount (or, if the Securities of that series are Original Issue Discount Securities or Indexed Securities, such portion of the principal amount as may be specified in the terms of such affected series) of all of the Securities of that series and all interest thereon to be due and payable immediately, by a notice in writing to the Corporation (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified portion thereof) shall become immediately due and payable. If an Event of Default described in clause (4) or (8) of Section 501 occurs and is continuing with respect to the Securities of one or more series, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of all series affected thereby (as one class) may declare the principal amount (or, if any such Securities are Original Issue Discount Securities or Indexed Securities, such portion of the principal amount as may be specified in the terms of such affected series) of all of the Outstanding Securities of such affected series and all interest thereon to be due and payable immediately, by a notice in writing to the Corporation (and to the Trustee if given by the Holders) and upon any such declaration such principal amount (or specified portion thereof) shall become immediately due and payable. If an Event of Default described in clause (5), (6) or (7) of Section 501 occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of all the Securities then Outstanding (as a class) may declare the principal amount (or, if any such Securities are Original Issue Discount Securities or Indexed Securities, such portion of the principal amount as may be specified in the terms of that series) of all of the Outstanding Securities and all interest thereon to be due and payable immediately, by a notice in writing to the Corporation (and to the Trustee if given by the Holders), and upon any such declaration such principal amount (or specified portion thereof) shall become immediately due and payable.

At any time after a declaration of acceleration with respect to Securities of any series (or of all series, as the case may be) has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided in this Article, the Holders of a majority in principal amount of the Outstanding Securities of that series (or of all series, as the case may be), by written notice to the Corporation and the Trustee, may rescind and annul such declaration and its consequences if:

(1) the Corporation has paid or deposited with the Trustee a sum sufficient to pay in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)),

 

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(A) all overdue interest, if any, on all Outstanding Securities of that series (or of all series, as the case may be),

(B) all unpaid principal of (and premium, if any) any Outstanding Securities of that series (or of all series, as the case may be) which has become due otherwise than by such declaration of acceleration, and interest on such unpaid principal at the rate or rates prescribed therefor in such Securities,

(C) to the extent lawful, interest on overdue interest, if any, at the rate or rates prescribed therefor in such Securities, and

(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and

(2) all Events of Default with respect to Securities of that series (or of all series, as the case may be), other than the non-payment of amounts of principal of (or premium, if any, on) or interest on Securities of that series (or of all series, as the case may be) which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.

No such rescission shall affect any subsequent default or impair any right consequent thereon.

SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.

The Corporation covenants that if:

(1) default is made in the payment of any installment of interest on any Security and any related coupon when such interest becomes due and payable and such default continues for a period of 30 days, or

(2) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof,

then the Corporation will, upon demand of the Trustee, pay to the Trustee for the benefit of the Holders of such Securities and coupons, the whole amount then due and payable on such Securities and coupons for principal (and premium, if any) and interest, if any, and, to the extent lawful, interest on any overdue principal (and premium, if any) and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

If the Corporation fails to pay such amounts forthwith upon such demand, the Trustee, in its own name as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Corporation or any other obligor upon such

 

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Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Corporation or any other obligor upon such Securities, wherever situated.

If an Event of Default with respect to Securities of any series (or of all series, as the case may be) occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series (or of all series, as the case may be) by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.

SECTION 504. Trustee May File Proofs of Claim.

In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Corporation or any other obligor upon the Securities or the property of the Corporation or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Corporation for the payment of overdue principal, premium, if any, or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,

(i) to file and prove a claim for the whole amount of principal (and premium, if any), or such portion of the principal amount of any series of Original Issue Discount Securities or Indexed Securities as may be specified in the terms of such series, and interest, if any, owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and

(ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 606.

Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

 

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SECTION 505. Trustee May Enforce Claims Without Possession of Securities.

All rights of action and claims under this Indenture or the Securities or coupons may be prosecuted and enforced by the Trustee without the possession of any of the Securities or coupons or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.

SECTION 506. Application of Money Collected.

Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, if any, upon presentation of the applicable Securities or coupons, or both, as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

First : To the payment of all amounts due the Trustee under Section 606;

Second : To the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest, if any, on the Securities and coupons in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities and coupons for principal (and premium, if any) and interest, if any, respectively; and

Third : The balance, if any, to the Person or Persons entitled thereto.

SECTION 507. Limitation on Suits.

No Holder of any Security of any series or any related coupons shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, the Securities of any series, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:

(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;

(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of all series affected by such Event of Default (determined as provided in Section 502 and as one class), shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

(3) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;

 

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(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and

(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority or more in principal amount of the Outstanding Securities of all series affected by such Event of Default (determined as provided in Section 502 and as one class);

it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Outstanding Securities of any such affected series, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all Holders of Outstanding Securities of all such affected series.

SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.

Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment, as provided herein (including, if applicable, Article Fourteen) and in such Security, of the principal of (and premium, if any) and (subject to Section 307) interest, if any, on, such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

SECTION 509. Restoration of Rights and Remedies.

If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Corporation, the Trustee and the Holders of Securities and coupons shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.

SECTION 510. Rights and Remedies Cumulative.

Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities or coupons is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

SECTION 511. Delay or Omission Not Waiver.

 

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No delay or omission of the Trustee or of any Holder of any Security or coupon to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

SECTION 512. Control by Holders.

The Holders of not less than a majority in principal amount of the Outstanding Securities of all series affected by an Event of Default (determined as provided in Section 502 and as one class) shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Outstanding Securities of such affected series, provided in each case

(1) such direction shall not be in conflict with any rule of law or with this Indenture,

(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and

(3) the Trustee need not take any action which might involve it in personal liability or be unjustly prejudicial to the Holders of Outstanding Securities of such affected series not consenting.

SECTION 513. Waiver of Past Defaults.

Subject to Section 502, the Holders of not less than a majority in principal amount of the Outstanding Securities of all series with respect to which a Default shall have occurred and be continuing (as one class) may on behalf of the Holders of all the Outstanding Securities of such affected series waive any past Default, and its consequences, except a Default

(1) in respect of the payment of the principal of (or premium, if any) or interest, if any, on any Security or any related coupon or the payment of Additional Amounts, or

(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such affected series.

Upon any such waiver, any such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.

SECTION 514. Waiver of Stay or Extension Laws.

 

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The Corporation covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Corporation (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

ARTICLE 6

THE TRUSTEE

SECTION 601. Notice of Defaults.

Within 90 days after the occurrence of any Default hereunder with respect to the Securities of any series, the Trustee shall transmit in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, notice of such default hereunder known to the Trustee, unless such Default shall have been cured or waived; provided, however, that, except in the case of a Default in the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series or in the payment of any sinking fund installment with respect to Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of the Holders of Securities of such series; and provided further that in the case of any Default of the character specified in Section 501(4) with respect to Securities of such series, no such notice to Holders shall be given until at least 60 days after the occurrence thereof.

SECTION 602. Certain Rights of Trustee.

Subject to the provisions of Sections 315(a) through 315(d) of the Trust Indenture Act:

(1) the Trustee may rely and shall be protected in acting or refraining from acting upon any statutory declaration, resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

(2) any request or direction of the Corporation mentioned herein shall be sufficiently evidenced by a Corporation Request or Corporation Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;

(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate;

 

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(4) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any series pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

(6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Corporation, personally or by agent or attorney;

(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; and

(8) the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture.

The Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

SECTION 603. Trustee Not Responsible for Recitals or Issuance of Securities.

The recitals contained herein and in the Securities, except for the Trustee’s certificates of authentication, and in any coupons shall be taken as the statements of the Corporation, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or the coupons, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Corporation are true and accurate, subject to the qualifications set forth therein. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Corporation of Securities or the proceeds thereof.

 

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SECTION 604. May Hold Securities .

The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Corporation or of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and coupons and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with the Corporation with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.

SECTION 605. Money Held in Trust.

Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Corporation.

SECTION 606. Compensation and Reimbursement.

The Corporation agrees:

(1) to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its willful misconduct, negligence or bad faith; and

(3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without willful misconduct, negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.

The obligations of the Corporation under this Section to compensate the Trustee, to pay or reimburse the Trustee for expenses, disbursements and advances and to indemnify and hold harmless the Trustee shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture. As security for the performance of such obligations of the Corporation, the Trustee shall have a claim prior to the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (or premium, if any) or interest, if any, on particular Securities or any coupons.

When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 501(6) or (7), the expenses (including reasonable charges and

 

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expense of its counsel) of and the compensation for such services are intended to constitute expenses of administration under any applicable bankruptcy, insolvency or other similar law.

“Trustee” for purposes of this Section 606 shall include any predecessor Trustee but the willful misconduct, negligence or bad faith of any Trustee shall not affect the rights of any other Trustee under this Section 606.

The provisions of this Section shall survive the termination of this Indenture.

SECTION 607. Corporate Trustee Required; Eligibility.

There shall be at all times a Trustee hereunder which shall be eligible to act as Trustee under Section 310(a)(1) of the Trust Indenture Act and shall have a combined capital and surplus of at least $50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of Federal, State, territorial or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

SECTION 608. Resignation and Removal; Appointment of Successor.

(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 609.

(b) The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Corporation. If the instrument of acceptance by a successor Trustee required by Section 609 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

(c) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of not less than a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Corporation.

(d) If at any time:

(1) the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act after written request therefor by the Corporation or by any Holder who has been a bona fide Holder of a Security for at least six months, or

(2) the Trustee shall cease to be eligible under Section 607 and shall fail to resign after written request therefor by the Corporation or by any Holder who has been a bona fide Holder of a Security for at least six months, or

 

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(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

then, in any such case, (i) the Corporation, by or pursuant to authority granted by a Board Resolution, may remove the Trustee with respect to all Securities or the Securities of such series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities of such series and the appointment of a successor Trustee or Trustees.

(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Corporation, by or pursuant to authority granted by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series). If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Corporation and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Corporation. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Corporation or the Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

(f) The Corporation shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to the Holders of Securities of such series in the manner provided for in Section 106. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.

SECTION 609. Acceptance of Appointment by Successor.

(a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Corporation and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Corporation or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and

 

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deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.

(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Corporation, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Corporation or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee, unless contemplated otherwise by such supplemental indenture, all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. Whenever there is a successor Trustee with respect to one or more (but less than all) series of securities issued pursuant to this Indenture, the terms “Indenture” and “Securities” shall have the meanings specified in the provisos to the respective definitions of those terms in Section 101 which contemplate such situation.

(c) Upon request of any such successor Trustee, the Corporation shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.

(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.

SECTION 610. Merger, Conversion, Consolidation or Succession to Business.

Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or

 

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consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. In case any of the Securities shall not have been authenticated by such predecessor Trustee, any successor Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor Trustee. In all such cases such certificates shall have the full force and effect which this Indenture provides for the certificate of authentication of the Trustee; provided, however, that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Securities in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.

SECTION 611. Appointment of Authenticating Agent.

At any time when any of the Securities remain Outstanding, the Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series and the Trustee shall give written notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, in the manner provided for in Section 106. Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustee, and a copy of such instrument shall be promptly furnished to the Corporation. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Corporation and shall at all times be a corporation organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect specified in this Section.

Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall

 

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continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.

An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Corporation. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Corporation. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Corporation and shall give written notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, in the manner provided for in Section 106. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.

The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 606.

If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:

Dated:                           

This is one of the Securities referred to in, and issued under, the within-mentioned Indenture.

 

[NAME OF TRUSTEE],
  as Trustee
By  

 

  as Authenticating Agent
By  

 

  Authorized Officer

 

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ARTICLE 7

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND CORPORATION

SECTION 701. Corporation to Furnish Trustee Names and Addresses of Holders .

The Corporation will furnish or cause to be furnished to the Trustee (1) not more than 15 days after each Regular Record Date a list, in such form as the Trustee may reasonably require, of the names and addresses of Holders as of such Regular Record Date; provided, however , that the Corporation shall not be obligated to furnish or cause to be furnished such list at any time that the list shall not differ in any respect from the most recent list furnished to the Trustee by the Corporation and at such times as the Trustee is acting as Security Registrar for the applicable series of Securities and (2) at such other times as the Trustee may request in writing within 30 days after the receipt by the Corporation of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished.

SECTION 702. Preservation of List of Names and Addresses of Holders .

(a) The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders contained in the most recent list furnished to it as provided in Section 701 and as to the names and addresses of Holders received by the Trustee in its capacity as Security Registrar for the applicable series of Securities (if acting in such capacity).

(b) The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished.

(c) Holders may communicate as provided in Section 312(b) of the Trust Indenture Act with other Holders with respect to their rights under this Indenture or under the Securities.

SECTION 703. Disclosure of Names and Addresses of Holders.

Every Holder of Securities, by receiving and holding the same, agrees with the Corporation and the Trustee that none of the Corporation or the Trustee or any agent of any of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with Section 312 of the Trust Indenture Act, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 312(b) of the Trust Indenture Act.

SECTION 704. Reports by Trustee.

(a) Within 60 days after May 15 of each year commencing with the first May 15 after the first issuance of Securities pursuant to this Indenture, the Trustee shall transmit to the Holders of Securities, in the manner and to the extent provided in Section 313(c) of the

 

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Trust Indenture Act, a brief report dated as of such May 15 if required by Section 313(a) of the Trust Indenture Act.

(b) The Trustee shall comply with Sections 313(b) and 313(c) of the Trust Indenture Act.

(c) A copy of such report shall, at the time of such transmission to the Holders, be filed by the Trustee with the Corporation (Attention: General Counsel), with each securities exchange upon which any of the Securities are listed (if so listed) and also with the Commission. The Corporation agrees to notify the Trustee when the Securities become listed on any stock exchange.

SECTION 705. Reports by the Corporation

The Corporation shall:

(1) file with the Trustee, within 15 days after the Corporation is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Corporation may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;

(2) file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Corporation with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations;

(3) Notwithstanding that the Corporation may not be required to remain subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the Commission, the Corporation shall provide the Trustee

(a) within 140 days after the end of each fiscal year, the information required to be contained in annual reports on Form 20-F or 40-F as applicable (or any successor form); and

(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, the information required to be contained in reports on Form 6-K (or any successor form) which, regardless of applicable requirements, shall, at a minimum, consist of such information required to be provided in quarterly reports under the laws of Canada or any province thereof to security holders of a corporation with securities listed on The Toronto Stock Exchange, whether or not the Corporation has any of its securities so listed.

 

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Such information will be prepared in accordance with Canadian disclosure requirements and Canadian generally accepted accounting principles; and

(4) transmit to all Holders, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, within 15 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Corporation pursuant to paragraphs (1) and (2) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.

ARTICLE 8

CONSOLIDATION, AMALGAMATION, MERGER,

CONVEYANCE, TRANSFER OR LEASE

SECTION 801. Corporation May Amalgamate or Consolidate, etc., Only on Certain Terms.

The Corporation shall not amalgamate or consolidate with or merge into or enter into any statutory arrangement with any other corporation or sell, assign, convey, transfer or lease or otherwise dispose of all or substantially all of its properties and assets to any Person, unless:

(1) in a transaction in which the Corporation does not survive or continue or in which the Corporation sells, assigns, conveys, transfers or leases or otherwise disposes of all or substantially all of its properties and assets, the entity formed by such amalgamation or consolidation or into which the Corporation is merged or with which it enters into such arrangement or the Person which acquires by conveyance or transfer or otherwise, or which leases, all or substantially all the properties and assets of the Corporation, (A) shall be a corporation, partnership or trust organized and validly existing (i) under the laws of the United States of America, any state thereof or the District of Columbia or the laws of Canada or any province or territory thereof, and (B) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, or shall assume by operation of law, the Corporation’s obligations under the Securities and this Indenture;

(2) immediately before and after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;

(3) the Corporation or such Person shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, statutory arrangement, merger, conveyance, transfer or lease and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.

 

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For greater certainty, the Corporation shall be considered to be the continuing corporation in the event of an amalgamation by the Corporation with any Wholly-Owned Subsidiary of the Corporation pursuant to Section 178 (or any successor thereto) of the Business Corporations Act (Alberta).

SECTION 802. Successor Person Substituted.

Upon any consolidation or amalgamation by the Corporation, statutory arrangement with or merger by the Corporation into any other corporation or any conveyance, transfer or lease of all or substantially all of the properties and assets of the Corporation to any Person in accordance with Section 801, the successor Person formed by such consolidation or amalgamation or statutory arrangement into which the Corporation is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Corporation under this Indenture with the same effect as if such successor Person had been named as the Corporation herein, and in the event of any such conveyance or transfer, the Corporation (which term shall for this purpose mean the Person named as the “Corporation” in the first paragraph of this Indenture or any successor Person which shall theretofore become such in the manner described in Section 801), except in the case of a lease, shall be discharged of all obligations and covenants under this Indenture and the Securities and may be dissolved and liquidated.

SECTION 803. Assignment of Rights.

Subject to Section 801, the Corporation will have the right at all times to assign any of its rights or obligations under this Indenture to a Wholly-Owned Subsidiary of the Corporation; provided, however, that in the event of any such assignment, the Corporation will remain fully and unconditionally liable for all of its obligations pursuant to the Securities and the Indenture by execution of an indenture supplemental hereto, in form satisfactory to the Trustee. Subject to the foregoing, this Indenture will be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

SECTION 804. Securities to Be Secured in Certain Events.

If, upon any consolidation, amalgamation or statutory arrangement of the Corporation with or merger of the Corporation into any other Person, or upon any conveyance, transfer or lease of all or substantially all of the properties and assets of the Corporation to any other Person, any of the property and assets of the Corporation would thereupon become subject to any Lien, then unless such Lien could be created pursuant to Section 1009 without equally and ratably securing the Securities, the Corporation prior to or simultaneously with such consolidation, amalgamation, statutory arrangement, merger, conveyance, transfer or lease, will secure the Securities Outstanding hereunder (together with, if the Corporation shall so determine, any other indebtedness of the Corporation now existing or hereafter created which is not subordinate to the Securities) equally and ratably with (or prior to) the indebtedness which upon such consolidation, amalgamation, merger, conveyance, transfer or lease is to become secured by such Lien, or will cause such Securities to be so secured; provided that, for the purpose of providing such equal and ratable security, the principal amount of Original Issue Discount Securities and Indexed Securities shall mean that amount which would at the time of making

 

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such effective provision be due and payable pursuant to Section 502 and the terms of such Original Issue Discount Securities and Indexed Securities upon a declaration of acceleration of the Maturity thereof, and the extent of such equal and ratable security shall be adjusted, to the extent permitted by law, as and when said amount changes over time pursuant to the terms of such Original Issue Discount Securities and Indexed Securities.

ARTICLE 9

SUPPLEMENTAL INDENTURES

SECTION 901. Supplemental Indentures Without Consent of Holders.

Without the consent of any Holders, the Corporation, when authorized by or pursuant to a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:

(1) to evidence the succession of another Person to the Corporation and the assumption by any such successor of the covenants of the Corporation contained herein and in the Securities; or

(2) to add to the covenants of the Corporation for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Corporation; or

(3) to add any additional Events of Default (and if such Events of Default are to be for the benefit of less than all series of Securities, stating that such Events of Default are being included solely for the benefit of such series); or

(4) to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or

(5) to secure the Securities pursuant to the requirements of Section 804 or 1009 or otherwise; or

(6) to establish the form or terms of Securities of any series as permitted by Sections 201 and 301; or

(7) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 609(b); or

 

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(8) to close this Indenture with respect to the authentication and delivery of additional series of Securities, to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture; provided such action shall not adversely affect the interests of the Holders of Securities of any series in any material respect; or

(9) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Sections 401, 1402 and 1403; provided that any such action shall not adversely affect the interests of the Holders of Securities of such series or any other series of Securities in any material respect.

SECTION 902. Supplemental Indentures with Consent of Holders.

With the consent of the Holders of not less than a majority in principal amount of all Outstanding Securities of any series affected by such supplemental indenture, by Act of said Holders delivered to the Corporation and the Trustee, the Corporation, when authorized by or pursuant to a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture which affect such series of Securities or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security of such series,

(1) subject to Section 308, change the Stated Maturity of the principal of (or premium, if any) or any installment of interest on any Security of such series, or reduce the principal amount thereof (or premium, if any) or the rate of interest, if any, thereon, or reduce the amount of the principal of an Original Issue Discount Security of such series that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502 or the amount thereof provable in bankruptcy pursuant to Section 504, or adversely affect any right of repayment at the option of any Holder of any Security of such series, or change any Place of Payment where, or the Currency in which, any Security of such series or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption or repayment at the option of the Holder, on or after the Redemption Date or Repayment Date, as the case may be), or adversely affect any right to convert or exchange any Security as may be provided pursuant to Section 301 herein, or

(2) reduce the percentage in principal amount of the Outstanding Securities of such series required for any modification or amendment of this Indenture for any waiver of compliance with certain provisions of this Indenture which affect such series or certain defaults applicable to such series hereunder and their consequences provided for in this Indenture, or reduce the requirements of Section 1504 for quorum or voting with respect to Securities of such series, or

 

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(3) modify any of the provisions of this Section, Section 513 or Section 1010, except to increase any such percentage or to provide that certain other provisions of this Indenture which affect such series cannot be modified or waived without the consent of the Holder of each Outstanding Security of such series.

Any such supplemental indenture adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture, or modifying in any manner the rights of the Holders of Securities of such series, shall not affect the rights under this Indenture of the Holders of Securities of any other series.

It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.

SECTION 903. Execution of Supplemental Indentures.

In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

SECTION 904. Effect of Supplemental Indentures.

Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

SECTION 905. Conformity with Trust Indenture Act.

Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.

SECTION 906. Reference in Securities to Supplemental Indentures.

Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Corporation shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Corporation, to any such supplemental indenture may be prepared and executed by the Corporation and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.

 

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SECTION 907. Notice of Supplemental Indentures.

Promptly after the execution by the Corporation and the Trustee of any supplemental indenture pursuant to the provisions of Section 902, the Corporation shall give notice thereof to the Holders of each Outstanding Security affected, in the manner provided for in Section 106, setting forth in general terms the substance of such supplemental indenture.

ARTICLE 10

COVENANTS

SECTION 1001. Payment of Principal, Premium, if any, and Interest.

The Corporation covenants and agrees for the benefit of the Holders of each series of Securities and any related coupons that it will duly and punctually pay the principal of (and premium, if any) and interest, if any, on the Securities of that series in accordance with the terms of the Securities, any coupons appertaining thereto and this Indenture. Unless otherwise specified as contemplated by Section 301 with respect to any series of Securities, any interest installments due on Bearer Securities on or before Maturity shall be payable only upon presentation and surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature.

SECTION 1002. Maintenance of Office or Agency.

If the Securities of a series are issuable only as Registered Securities, the Corporation will maintain or cause to be maintained in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange, where Securities of that series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable and where notices and demands to or upon the Corporation in respect of the Securities of that series and this Indenture may be served.

If Securities of a series are issuable as Bearer Securities, the Corporation will maintain an office or agency outside the United States where any Bearer Securities of that series and related coupons may be presented or surrendered for payment, where any Bearer Securities of that series may be surrendered for registration of transfer, where Bearer Securities of that series may be surrendered for exchange, where Bearer Securities of that series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable, where notices and demands to or upon the Corporation in respect of the Bearer Securities of that series and this Indenture may be served and where Bearer Securities of that series and related coupons may be presented or surrendered for payment; provided, however, that, if the Bearer Securities of that series are listed on any stock exchange located outside the United States and such stock exchange shall so require, the Corporation will maintain a Paying Agent for the Securities of that series in any required city located outside the United States so long as the Bearer Securities of that series are listed on such exchange.

 

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The Corporation will give prompt written notice to the Trustee of the location, and any change in the location, of any such office or agency. If at any time the Corporation shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, except that Bearer Securities of any series and the related coupons may be presented and surrendered for payment at the offices specified in the Security, and the Corporation hereby appoints the same as its agent to receive such respective presentations, surrenders, notices and demands.

Unless otherwise specified with respect to any Securities pursuant to Section 301, no payment of principal, premium or interest on Bearer Securities shall be made at any office or agency of the Corporation in the United States or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States; provided , however, that, if the Securities of a series are payable in Dollars, payment of principal of (and premium, if any) and interest, if any, on any Bearer Security shall be made at the office of the Corporation’s Paying Agent in The City of New York, if (but only if) payment in Dollars of the full amount of such principal, premium or interest, as the case may be, at all offices or agencies outside the United States maintained for such purposes by the Corporation in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions.

The Corporation may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind any such designation; provided, however, that no such designation or rescission shall in any manner relieve the Corporation of its obligation to maintain an office or agency in accordance with the requirements set forth above for Securities of any series for such purposes. The Corporation will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. Unless otherwise specified with respect to any Securities as contemplated by Section 301 with respect to a series of Securities, the Corporation hereby designates as a Place of Payment for each series of Securities the office or agency of the Corporation in Calgary, Alberta, Canada, and initially appoints the Trustee at its Corporate Trust Office as Paying Agent in such city and as its agent to receive all such presentations, surrenders, notices and demands.

Unless otherwise specified with respect to any Securities pursuant to Section 301, if and so long as the Securities of any series (i) are denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long as it is required under any other provision of the Indenture, then the Corporation will maintain with respect to each such series of Securities, or as so required, at least one Exchange Rate Agent.

SECTION 1003. Money for Securities Payments to Be Held in Trust.

If the Corporation shall at any time act as its own Paying Agent with respect to any series of Securities and any related coupons, it will, on or before each due date of the principal of (or premium, if any) or interest, if any, on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the Currency or

 

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Currencies in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal of (or premium, if any) or interest, if any, on Securities of such series so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.

Whenever the Corporation shall have one or more Paying Agents for any series of Securities and any related coupons, it will, prior to or on each due date of the principal of (or premium, if any) or interest, if any, on any Securities of that series, deposit with a Paying Agent a sum (in the Currency or Currencies described in the preceding paragraph) sufficient to pay the principal (or premium, if any) or interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Corporation will promptly notify the Trustee of its action or failure so to act.

The Corporation will cause each Paying Agent (other than the Trustee) for any series of Securities to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:

(1) hold all sums held by it for the payment of the principal of (and premium, if any) and interest, if any, on Securities of such series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;

(2) give the Trustee notice of any default by the Corporation (or any other obligor upon the Securities of such series) in the making of any payment of principal of (or premium, if any) or interest, if any, on the Securities of such series; and

(3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.

The Corporation may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Corporation Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Corporation or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which sums were held by the Corporation or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums.

Except as provided in the Securities of any series, any money deposited with the Trustee or any Paying Agent, or then held by the Corporation, in trust for the payment of the principal of (or premium, if any) or interest, if any, on any Security of any series, or any coupon appertaining thereto, and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Corporation, or (if then held by the

 

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Corporation) shall be discharged from such trust; and the Holder of such Security or coupon shall thereafter, as an unsecured general creditor, look only to the Corporation for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Corporation as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the written direction and at the expense of the Corporation cause to be published once, in an Authorized Newspaper, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Corporation.

SECTION 1004. Statement as to Compliance.

The Corporation will deliver to the Trustee, within 140 days after the end of each fiscal year, a certificate from the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of whether the Corporation is in compliance with all conditions and covenants under this Indenture and, if not in such compliance, specifying all such known defaults. For purposes of this Section 1004, such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture.

SECTION 1005. Additional Amounts.

If specified pursuant to Section 301, all payments made by the Corporation under or with respect to the Securities of any series will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge imposed or levied by or on behalf of the Government of Canada or of any province or territory thereof or by any authority or agency therein or thereof having power to tax (hereinafter “Taxes”), unless the Corporation is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If the Corporation is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Securities, the Corporation will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each Holder (including Additional Amounts) after such withholding or deduction will not be less than the amount the Holder would have received if such Taxes had not been withheld or deducted; provided that no Additional Amounts will be payable:

(1) to any Person in respect of whom such taxes are required to be withheld or deducted as a result of such Person not dealing at arm’s length with the Corporation (within the meaning of the Income Tax Act (Canada));

(2) to any Person by reason of such Person being connected with Canada (otherwise than merely by holding or ownership of any series of Securities or receiving any payments or exercising any rights thereunder), including without limitation a non-resident insurer who carries on an insurance business in Canada and in a country other than Canada;

 

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(3) for or on account of any tax, assessment or other governmental charge which would not have been so imposed but for the presentation by the Holder of such Security or coupon for payment on a date more than 10 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;

(4) for or on account of any estate, inheritance, gift, sales, transfer, personal property tax or any similar tax, assessment or other governmental charge;

(5) for or on account of any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment to a Person in respect of any Security, if such payment can be made to such person without such withholding by at least one other paying agent the identity of which is provided to such Person;

(6) for or on account of any tax, assessment or other governmental charge which is payable otherwise than by withholding from a payment in respect of such Security; or

(7) for any combination of items (1), (2), (3), (4), (5) and (6);

nor will Additional Amounts be paid with respect to any payment on a Security to a Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of Canada (or any political subdivision thereof) to be included in the income for Canadian federal income tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to payment of the additional amounts had such beneficiary, settlor, member or beneficial owner been the Holder of such Security.

At least 10 days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Corporation will be obligated to pay Additional Amounts with respect to such payment, the Corporation will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date. Whenever in this Indenture there is mentioned, in any context, the payment of principal (and premium, if any), Redemption Price, interest or any other amount payable under or with respect to any Security such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made (if applicable).

The obligations of the Corporation under this Section 1005 shall survive the termination of the Indenture.

 

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SECTION 1006. Payment of Taxes and Other Claims.

The Corporation will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, all material taxes, assessments and governmental charges levied or imposed upon the Corporation or upon the income, profits or property of the Corporation; provided , however, that the Corporation shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings.

SECTION 1007. Maintenance of Properties.

The Corporation will cause all its properties to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Corporation may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however , that nothing in this Section shall prevent or restrict the sale, abandonment or other disposition of any of such properties if such action is, in the judgment of the Corporation desirable in the conduct of the business of the Corporation.

SECTION 1008. Corporate Existence.

Subject to Article Eight, the Corporation will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the rights (charter and statutory) and franchises of the Corporation; provided , however , that the Corporation shall not be required to preserve any such right or franchise if the Corporation shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Corporation and its Subsidiaries as a whole, as the case may be.

SECTION 1009. Limitation on Liens.

So long as any Securities are Outstanding, the Corporation will not, and will not permit any Subsidiary of the Corporation to, create, incur or assume any Lien securing any indebtedness for borrowed money or interest thereon (or any liability of the Corporation or such Subsidiary under any guarantee or endorsement or other instrument under which the Corporation or such Subsidiary is contingently liable, either directly or indirectly, for borrowed money or interest thereon), other than Permitted Liens, without simultaneously or prior thereto securing, or causing such Subsidiary to secure, indebtedness under the Indenture so that Securities are secured equally and ratably with or prior to such other indebtedness or liability, except that the Corporation and its Subsidiaries may incur a Lien to secure indebtedness for borrowed money without securing the Securities if, after giving effect thereto, the principal amount of indebtedness for borrowed money secured by Liens created, incurred or assumed after the date hereof and otherwise prohibited by this Indenture does not exceed 10% of Consolidated Net Tangible Assets of the Corporation.

Notwithstanding the foregoing, transactions such as the sale (including any forward sale) or other transfer of (i) oil, gas, minerals or other resources of a primary nature, whether in place or when produced, for a period of time until, or in an amount such that, the

 

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purchaser will realize therefrom a specified amount of money or a specified rate of return (however determined), or a specified amount of such oil, gas, minerals, or other resources of a primary nature, or (ii) any other interest in property of the character commonly referred to as a “production payment”, will not be deemed to create indebtedness secured by Liens.

SECTION 1010. Waiver of Certain Covenants.

The Corporation may, with respect to any series of Securities, omit in any particular instance to comply with any term, provision or condition which affects such series set forth in Section 804 or Sections 1006 to 1009, inclusive, or any covenants added to Article Ten pursuant to Section 301 in connection with Securities of such series, if before the time for such compliance the Holders of at least a majority in principal amount of all Outstanding Securities of any series, by Act of such Holders, waive such compliance in such instance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Corporation and the duties of the Trustee to Holders of Securities of such series in respect of any such term, provision or condition shall remain in full force and effect.

ARTICLE 11

REDEMPTION OF SECURITIES

SECTION 1101. Applicability of Article.

Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article.

SECTION 1102. Election to Redeem; Notice to Trustee.

The election of the Corporation to redeem any Securities shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Corporation, the Corporation shall, at least 60 days prior to the Redemption Date fixed by the Corporation (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed and shall deliver to the Trustee such documentation and records as shall enable the Trustee to select the Securities to be redeemed pursuant to Section 1103. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Corporation shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction.

SECTION 1103. Selection by Trustee of Securities to Be Redeemed.

If less than all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by lot in such manner as the Trustee shall deem fair and appropriate and which may

 

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provide for the selection for redemption of portions of the principal of Securities of such series; provided, however, that no such partial redemption shall reduce the portion of the principal amount of a Security not redeemed to less than the minimum authorized denomination for Securities of such series established pursuant to Section 301.

The Trustee shall promptly notify the Corporation and the Security Registrar (if other than the Corporation) in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.

For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.

SECTION 1104. Notice of Redemption.

Except as otherwise specified as contemplated by Section 301, notice of redemption shall be given in the manner provided for in Section 106 not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed. Failure to give notice in the manner provided in Section 106 to the Holder of any Securities designated for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other Securities or portion thereof.

Any notice that is mailed to the Holder of any Securities in the manner provided in Section 106 shall be conclusively presumed to have been duly given, whether or not such Holder receives the notice.

All notices of redemption shall state:

(1) the Redemption Date,

(2) the Redemption Price and the amount of accrued interest to the Redemption Date payable as provided in Section 1106, if any,

(3) if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed,

(4) in case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the holder will receive, without charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed,

(5) that on the Redemption Date, the Redemption Price and accrued interest, if any, to the Redemption Date payable as provided in Section 1106 will become due and payable upon each such Security, or the portion thereof, to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,

 

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(6) the Place or Places of Payment where such Securities, maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price and accrued interest, if any, and

(7) that the redemption is for a sinking fund, if such is the case.

Notice of redemption of Securities to be redeemed at the election of the Corporation shall be given by the Corporation or, at the Corporation’s request, by the Trustee in the name and at the expense of the Corporation.

SECTION 1105. Deposit of Redemption Price.

On or prior to any Redemption Date, the Corporation shall deposit, with respect to the Securities being redeemed, with the Trustee or with a Paying Agent (or, if the Corporation is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the Redemption Price of, and accrued interest, if any, on, all the Securities which are to be redeemed on that date.

SECTION 1106. Securities Payable on Redemption Date.

Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) (together with accrued interest, if any, to the Redemption Date), and from and after such date (unless the Corporation shall default in the payment of the Redemption Price and accrued interest, if any) such Securities shall, if the same were interest-bearing, cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Corporation at the Redemption Price, together with accrued interest, if any, to the Redemption Date; provided, however, that installments of interest on Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date or Special Record Date, as the case may be, according to their terms and the provisions of Section 307.

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) set forth in such Security.

SECTION 1107. Securities Redeemed in Part.

Any Security which is to be redeemed only in part (pursuant to the provisions of this Article or of Article Twelve) shall be surrendered at a Place of Payment therefor (with, if the Corporation or the Trustee so requires, due endorsement by, or a written instrument of transfer in

 

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form satisfactory to the Corporation and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Corporation shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.

SECTION 1108. Tax Redemption.

If specified pursuant to Section 301, the Securities of a series will be subject to redemption at any time, in whole but not in part, at a redemption price equal to the principal amount thereof together with accrued and unpaid interest to the date fixed for redemption, upon the giving of a notice as described below, if (1) the Corporation determines that (a) as a result of any change in or amendment to the laws (or any regulations or rulings promulgated thereunder) of Canada or of any political subdivision or taxing authority thereof or therein affecting taxation, or any change in official position regarding application or interpretation of such laws, regulations or rulings (including a holding by a court of competent jurisdiction), which change or amendment is announced or becomes effective on or after a date specified in the applicable prospectus supplement, if any date is so specified, the Corporation has or will become obligated to pay, on the next succeeding date on which interest is due, Additional Amounts pursuant to Section 1005 or (b) on or after a date specified pursuant to Section 301, any action has been taken by any taxing authority of, or any decision has been rendered by a court of competent jurisdiction in, Canada or any political subdivision or taxing authority thereof or therein, including any of those actions specified in (a) above, whether or not such action was taken or decision was rendered with respect to the Corporation, or any change, amendment, application or interpretation shall be officially proposed, which, in any such case, in the Opinion of Counsel to the Corporation, will result in the Corporation becoming obligated to pay, on the next succeeding date on which interest is due, Additional Amounts with respect to any Security of such series and (2) in any such case, the Corporation in its business judgment determines that such obligation cannot be avoided by the use of reasonable measures available to the Corporation; provided however, that (i) no such notice of redemption may be given earlier than 90 or later than 30 days prior to the earliest date on which the Corporation would be obligated to pay such Additional Amounts were a payment in respect of the Securities then due, and (ii) at the time such notice of redemption is given, such obligation to pay such Additional Amounts remains in effect.

ARTICLE 12

SINKING FUNDS

SECTION 1201. Applicability of Article.

Retirements of Securities of any series pursuant to any sinking fund shall be made in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article.

 

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The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any mandatory sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.

SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.

Subject to Section 1203, in lieu of making all or any part of any mandatory sinking fund payment with respect to any Securities of a series in cash, the Corporation may at its option (1) deliver to the Trustee Outstanding Securities of a series (other than any previously called for redemption) theretofore purchased or otherwise acquired by the Corporation, and/or

(2) receive credit for the principal amount of Securities of such series which have been previously delivered to the Trustee by the Corporation for Securities of such series which have been redeemed either at the election of the Corporation pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any mandatory sinking fund payment with respect to the Securities of the same series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided, however, that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly.

SECTION 1203. Redemption of Securities for Sinking Fund.

Not less than 30 days prior to each sinking fund payment date for any series of Securities, the Corporation will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) and the portion thereof, if any, which is to be satisfied by delivering or crediting Securities of that series pursuant to Section 1202 (which Securities will, if not previously delivered, accompany such certificate) and whether the Corporation intends to exercise its right to make a permitted optional sinking fund payment with respect to such series. Such certificate shall be irrevocable and upon its delivery the Corporation shall be obligated to make the cash payment or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. In the case of the failure of the Corporation to deliver such certificate, the sinking fund payment due on the next succeeding sinking fund payment date for that series shall be paid entirely in cash and shall be sufficient to redeem the principal amount of such Securities subject to a mandatory sinking fund payment without, with respect to such payment date, the option to deliver or credit Securities as provided in Section 1202 and without the right to make any optional sinking fund payment, if any, with respect to such series.

 

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Not more than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Corporation in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.

On or prior to any sinking fund payment date, the Corporation shall pay to the Trustee or a Paying Agent (or, if the Corporation is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) in cash a sum equal to any interest that will accrue to the date fixed for redemption of Securities or portions thereof to be redeemed on such sinking fund payment date pursuant to this Section 1203.

Notwithstanding the foregoing, with respect to a sinking fund for any series of Securities, if at any time the amount of cash to be paid into such sinking fund on the next succeeding sinking fund payment date, together with any unused balance of any preceding sinking fund payment or payments for such series, does not exceed in the aggregate $100,000, the Trustee, unless requested by the Corporation, shall not give the next succeeding notice of the redemption of Securities of such series through the operation of the sinking fund. Any such unused balance of moneys deposited in such sinking fund shall be added to the sinking fund payment for such series to be made in cash on the next succeeding sinking fund payment date or, at the request of the Corporation, shall be applied at any time or from time to time to the purchase of Securities of such series, by public or private purchase, in the open market or otherwise, at a purchase price for such Securities (excluding accrued interest and brokerage commissions, for which the Trustee or any Paying Agent will be reimbursed by the Corporation) not in excess of the principal amount thereof.

ARTICLE 13

REPAYMENT AT OPTION OF HOLDERS

SECTION 1301. Applicability of Article.

Repayment of Securities of any series before their Stated Maturity at the option of Holders thereof shall be made in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article.

SECTION 1302. Repayment of Securities.

Securities of any series subject to repayment in whole or in part at the option of the Holders thereof will, unless otherwise provided in the terms of such Securities, be repaid at a price equal to the principal amount thereof, together with interest, if any, thereon accrued to the Repayment Date specified in or pursuant to the terms of such Securities. The Corporation covenants that on or before the Repayment Date it will deposit with the Trustee or with a Paying Agent (or, if the Corporation is acting as its own Paying Agent, segregate and hold in trust as

 

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provided in Section 1003) an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal (or, if so provided by the terms of the Securities of any series, a percentage of the principal) of and (except if the Repayment Date shall be an Interest Payment Date) accrued interest, if any, on, all the Securities or portions thereof, as the case may be, to be repaid on such date.

SECTION 1303. Exercise of Option.

Securities of any series subject to repayment at the option of the Holders thereof will contain an “Option to Elect Repayment” form on the reverse of such Securities. To be repaid at the option of the Holder, any Security so providing for such repayment, with the “Option to Elect Repayment” form on the reverse of such Security duly completed by the Holder (or by the Holder’s attorney duly authorized in writing), must be received by the Corporation at the Place of Payment therefor specified in the terms of such Security (or at such other place or places of which the Corporation shall from time to time notify the Holders of such Securities) not earlier than 45 days nor later than 30 days prior to the Repayment Date. If less than the entire principal amount of such Security is to be repaid in accordance with the terms of such Security, the principal amount of such Security to be repaid, in increments of the minimum denomination for Securities of such series, and the denomination or denominations of the Security or Securities to be issued to the Holder for the portion of the principal amount of such Security surrendered that is not to be repaid, must be specified. The principal amount of any Security providing for repayment at the option of the Holder thereof may not be repaid in part if, following such repayment, the unpaid principal amount of such Security would be less than the minimum authorized denomination of Securities of the series of which such Security to be repaid is a part. Except as otherwise may be provided by the terms of any Security providing for repayment at the option of the Holder thereof, exercise of the repayment option by the Holder shall be irrevocable unless waived by the Corporation.

SECTION 1304. When Securities Presented for Repayment Become Due and Payable.

If Securities of any series providing for repayment at the option of the Holders thereof shall have been surrendered as provided in this Article and as provided by or pursuant to the terms of such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall become due and payable and shall be paid by the Corporation on the Repayment Date therein specified, and on and after such Repayment Date (unless the Corporation shall default in the payment of such Securities on such Repayment Date) such Securities shall, if the same were interest-bearing, cease to bear interest. Upon surrender of any such Security for repayment in accordance with such provisions, the principal amount of such Security so to be repaid shall be paid by the Corporation, together with accrued interest, if any, to the Repayment Date; provided, however, that, in the case of Securities, installments of interest, if any, whose Stated Maturity is on or prior to the Repayment Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.

 

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If the principal amount of any Security surrendered for repayment shall not be so repaid upon surrender thereof, such principal amount (together with interest, if any, thereon accrued to such Repayment Date) shall, until paid, bear interest from the Repayment Date at the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) set forth in such Security.

SECTION 1305. Securities Repaid in Part.

Upon surrender of any Registered Security which is to be repaid in part only, the Corporation shall execute and the Trustee shall authenticate and deliver to the Holder of such Security, without service charge and at the expense of the Corporation, a new Registered Security or Securities of the same series, of any authorized denomination specified by the Holder, in an aggregate principal amount equal to and in exchange for the portion of the principal of such Security so surrendered which is not to be repaid.

ARTICLE 14

DEFEASANCE AND COVENANT DEFEASANCE

SECTION 1401. Option to Effect Defeasance or Covenant Defeasance.

Except as otherwise specified as contemplated by Section 301 for Securities of any series, the provisions of this Article Fourteen shall apply to each series of Securities, and the Corporation may, at its option, effect defeasance of the Securities of or within a series under Section 1402, or covenant defeasance of or within a series under Section 1403 in accordance with the terms of such Securities and in accordance with this Article.

SECTION 1402. Defeasance and Discharge.

Upon the exercise by the Corporation of the above option applicable to this Section with respect to any Securities of or within a series, the Corporation shall be deemed to have been discharged from its obligations with respect to such Outstanding Securities on the date the conditions set forth in Section 1404 are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance means that the Corporation shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Securities which shall thereafter be deemed to be “Outstanding” only for the purposes of Section 1405 and the other Sections of this Indenture referred to in (A) and (B) below, and to have satisfied all of its other obligations under such Securities, and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Corporation, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of such Outstanding Securities to receive, solely from the trust fund described in Section 1404 and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on such Securities when such payments are due, (B) the Corporation’s obligations with respect to such Securities under Sections 304, 305, 306, 1002, 1003 and 1005, (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (D) this Article Fourteen. Subject to

 

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compliance with this Article Fourteen, the Corporation may exercise its option under this Section 1402 notwithstanding the prior exercise of the option under Section 1403 with respect to such Securities.

SECTION 1403. Covenant Defeasance.

Upon the exercise by the Corporation of the above option applicable to this Section with respect to any Securities of or within a series, the Corporation shall be released from its obligations under Section 804 and Sections 1006 through 1009, and, if specified pursuant to Section 301, their obligations under any other covenant, with respect to such Outstanding Securities on and after the date the conditions set forth in Section 1404 are satisfied (hereinafter, “covenant defeasance”), and such Securities shall thereafter be deemed not to be “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such Outstanding Securities, the Corporation may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 501(4) or Section 501(8) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Securities shall be unaffected thereby.

SECTION 1404. Conditions to Defeasance or Covenant Defeasance.

The following shall be the conditions to application of either Section 1402 or Section 1403 to any Outstanding Securities of or within a series:

(1) The Corporation has deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 607 who shall agree to comply with the provisions of this Article Fourteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (A) an amount (in such Currency in which such Securities are then specified as payable at Stated Maturity), or (B) Government Obligations applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and premium, if any, and interest, if any, under such Securities, money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent chartered accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (i) the principal of (and premium, if any) and interest, if any, on such Outstanding Securities on the Stated Maturity (or Redemption Date, if applicable) of such principal (and premium, if any) or installment of interest, if any, and (ii) any mandatory sinking fund payments or analogous

 

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payments applicable to such Outstanding Securities on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Obligations to said payments with respect to such Securities. Before such a deposit, the Corporation may give to the Trustee, in accordance with Section 1102 hereof, a notice of its election to redeem all or any portion of such Outstanding Securities at a future date in accordance with the terms of the Securities of such series and Article Eleven hereof, which notice shall be irrevocable. Such irrevocable redemption notice, if given, shall be given effect in applying the foregoing.

(2) In the case of an election under Section 1402, the Corporation shall have delivered to the Trustee an Opinion of Counsel in the United States stating that (i) the Corporation has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since the date of execution of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of such Outstanding Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred.

(3) In the case of an election under Section 1403, the Corporation shall have delivered to the Trustee an Opinion of Counsel in the United States to the effect that the Holders of such Outstanding Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.

(4) Either the Corporation has delivered to the Trustee an Opinion of Counsel in Canada or a ruling from Canada Customs and Revenue Agency to the effect that the Holders of such Outstanding Securities will not recognize income, gain or loss for Canadian federal, provincial or territorial income tax or other tax purposes as a result of such defeasance or covenant defeasance and will be subject to Canadian federal or provincial income tax and other tax on the same amounts, in the same manner and at the same times as would have been the case had such Defeasance not occurred (and for the purposes of such opinion, such Canadian counsel shall assume that Holders of the Securities include Holders who are not resident in Canada).

(5) The Corporation is not an “insolvent person” within the meaning of the Bankruptcy and Insolvency Act (Canada) on the date of such deposit or at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).

(6) No Event of Default or Default with respect to such Securities shall have occurred and be continuing on the date of such deposit or, insofar as paragraphs (6) and (7) of Section 501 are concerned, at any time during the period ending on the 91st day

 

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after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).

(7) The Corporation has delivered to the Trustee an Opinion of Counsel to the effect that such deposit shall not cause the Trustee or the trust so created to be subject to the Investment Company Act of 1940, as amended.

(8) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Corporation is a party or by which it is bound.

(9) Notwithstanding any other provisions of this Section, such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations in connection therewith pursuant to Section 301.

(10) The Corporation shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the defeasance under Section 1402 or the covenant defeasance under Section 1403 (as the case may be) have been complied with.

SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.

Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations (or other property as may be provided pursuant to Section 301) (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 1405, the “Trustee”) pursuant to Section 1404 in respect of such Outstanding Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Corporation acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal (and premium, if any) and interest, if any, but such money need not be segregated from other funds except to the extent required by law.

Unless otherwise specified with respect to any Security pursuant to Section 301, if, after a deposit referred to in Section 1404(1) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 312(b) or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 1404(1) has been made in respect of such Security, or (b) a Conversion Event occurs as contemplated in Section 312(d) or 312(e) or by the terms of any Security in respect of which the deposit pursuant to Section 1404(1) has been made, the indebtedness represented by such Security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any) and interest, if any, on such Security as they become due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on the applicable Market

 

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Exchange Rate for such Currency in effect on the third Business Day prior to each payment date, except, with respect to a Conversion Event, for such Currency in effect (as nearly as feasible) at the time of the Conversion Event.

The Corporation shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 1404 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities.

Anything in this Article Fourteen to the contrary notwithstanding, the Trustee shall deliver or pay to the Corporation from time to time upon request of the Corporation any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in Section 1404 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent defeasance or covenant defeasance, as applicable, in accordance with this Article.

SECTION 1406. Reinstatement.

If the Trustee or any Paying Agent is unable to apply any money in accordance with Section 1405 by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Corporation under this Indenture and such Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section 1402 or 1403, as the case may be, until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 1405; provided , however, that if the Corporation makes any payment of principal of (or premium, if any) or interest, if any, on any such Security following the reinstatement of its obligations, the Corporation shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money held by the Trustee or Paying Agent.

ARTICLE 15

MEETINGS OF HOLDERS OF SECURITIES

SECTION 1501. Purposes for Which Meetings May Be Called.

A meeting of Holders of Securities of any series may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such series.

SECTION 1502. Call, Notice and Place of Meetings.

(a) The Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 1501, to be held at such time and at such place

 

85


in The City of New York or, if Securities of such series have been issued in whole or in part as Bearer Securities, in London, England or in such place outside the United States as the Trustee shall determine. Notice of every meeting of Holders of Securities of any series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided for in Section 106, not less than 21 nor more than 180 days prior to the date fixed for the meeting.

(b) In case at any time the Corporation, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding Securities of any series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in Section 1501, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Corporation or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place in The City of New York or, if Securities of such series are to be issued as Bearer Securities, in London, England (or in such place outside the United States as the Trustee shall determine) for such meeting and may call such meeting for such purposes by giving notice thereof as provided in paragraph (a) of this Section.

SECTION 1503. Persons Entitled to Vote at Meetings.

To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall be (1) a Holder of one or more Outstanding Securities of such series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Corporation and its counsel.

SECTION 1504. Quorum; Action

The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders of Securities of such series; provided, however, that, if any action is to be taken at such meeting with respect to a consent or waiver which this Indenture expressly provides may be given by the Holders of not less than a specified percentage in principal amount of the Outstanding Securities of a series, the Persons entitled to vote such specified percentage in principal amount of the Outstanding Securities of such series shall constitute a quorum. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less then 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned

 

86


meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 1502(a), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of any adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the Outstanding Securities of such series which shall constitute a quorum.

Except as limited by the proviso to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the affirmative vote of the Holders of not less than a majority in principal amount of the Outstanding Securities of such series; provided, however, that, except as limited by the proviso to Section 902, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of not less than such specified percentage in principal amount of the Outstanding Securities of such series.

Any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders of Securities of such series and the related coupons, whether or not such Holders were present or represented at the meeting.

Notwithstanding the foregoing provisions of this Section 1504, if any action is to be taken at a meeting of Holders of Securities of any series with respect to any request, demand, authorization, direction, notice, consent, waiver or other action that this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage in principal amount of all Outstanding Securities affected thereby, or of the Holders of such series and one or more additional series:

 

  (i) there shall be no minimum quorum requirement for such meeting; and

 

  (ii) the principal amount of the Outstanding Securities of such series that vote in favor of such request, demand, authorization, direction, notice, consent, waiver or other action shall be taken into account in determining whether such request, demand, authorization, direction, notice, consent, waiver or other action has been made, given or taken under this Indenture.

SECTION 1505. Determination of Voting Rights: Conduct and Adjournment of Meetings.

(a) Notwithstanding any provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of a series in regard to proof of the holding of Securities of such series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall

 

87


deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 104 and the appointment of any proxy shall be provided in the manner specified in Section 104 or by having the signature of the person executing the proxy witnessed or guaranteed by any trust company or bank authorized by Section 104 to certify to the holding of Bearer Securities. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 104 or other proof.

(b) The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Corporation or by Holders of Securities as provided in Section 1502(b), in which case the Corporation or the Holders of Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting.

(c) At any meeting, each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount of Outstanding Securities of such series held or represented by him (determined as specified in the definition of “Outstanding” in Section 101); provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.

(d) Any meeting of Holders of Securities of any series duly called pursuant to section 1502 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting; and the meeting may be held as so adjourned without further notice.

SECTION 1506. Counting Votes and Recording Action of Meetings.

The vote upon any resolution submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 1502 and, if applicable, Section 1504. Each copy shall be signed and verified by the affidavits of the permanent

 

88


chairman and secretary of the meeting and one such copy shall be delivered to the Corporation, and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.

*     *     *     *      *

 

89


This Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Indenture.

IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written.

 

ALBERTA ENERGY COMPANY LTD.,
        as Issuer
By:   /s/ John D. Watson
Name:   John D. Watson
Title:   Vice-President, Finance and
  Chief Financial Officer
By:   /s/ Bernard K. Lee
Name:   Bernard K. Lee
Title:   Assistant Treasurer
THE BANK OF NEW YORK,
        as Trustee
By:   /s/ Luis Perez
Name:   LUIS PEREZ
Title:   ASSISTANT VICE PRESIDENT

 

[Seal]   
  

 

90


EXHIBIT A

FORM OF SECURITY

*[Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Corporation (as defined below) or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co . or such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.

Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this certificate may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a successor Depositary or a nominee of such successor Depositary.]

ALBERTA ENERGY COMPANY LTD.

     % [Debenture] [Note] [due] [Due]         

No.          $     

CUSIP:                

Alberta Energy Company Ltd., a corporation duly organized and existing under the laws of the Province of Alberta, Canada (herein called the “Corporation”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to [Cede & Co.]*, or registered assigns, the principal sum of *$                    (                     DOLLARS) on [date and year], at the office or agency of the Corporation referred to below, and to pay interest thereon on [date and year] and semi-annually thereafter, on [date] and [date] in each year, from [date and year],** or from the most recent Interest Payment Date to which

 

* Include if Securities are to be issued in global form. At the time of this writing, DTC will not accept global securities with an aggregate principal amount in excess of U.S.$400,000,000. If the aggregate principal amount of your offering exceeds this amount, use more than one global security.
** Insert date from which interest is to accrue or, if the Securities are to be sold “flat”, the closing date of the offering.

 

Exhibit A-1


interest has been paid or duly provided for, at the rate of              % per annum, until the principal hereof is paid or duly provided for, and (to the extent lawful) to pay on demand interest on any overdue interest at the rate borne by the Securities from the date on which such overdue interest becomes payable to the date payment of such interest has been made or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the [date] or [date] (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date, and such defaulted interest, and (to the extent lawful) interest on such defaulted interest at the rate borne by the Securities, may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

Unless the certificate of authentication hereon has been duly executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly executed under its corporate seal.

 

                Dated:   

ALBERTA ENERGY COMPANY LTD.

 

   By                                                                                                                        
[Corporate Seal]   
   By                                                                                                                        

 

Exhibit A-2


TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Securities referred to in, and issued under, the within-mentioned Indenture.

 

THE BANK OF NEW YORK,

        as Trustee

 

By  

 

  Authorized Signatory

 

Exhibit A-3


[Form of Reverse]

This Security is one of a duly authorized issue of securities of the Corporation designated as its     % [Debentures] [Notes] [due] [Due]                     (herein called the “Securities”), limited (except as otherwise provided in the Indenture referred to below) in aggregate principal amount to $[         ,000,000], which may be issued under an indenture (herein called the “Indenture”) dated as of             , 2000 among the Corporation and The Bank of New York, as trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Corporation, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. [This Security is a global Security representing $[         ,        000] aggregate principal amount [at maturity]* of the Securities.]**

Payment of the principal of (and premium, if any, on) and interest on this Security will be made at the office or agency of the Corporation maintained or caused to be maintained for that purpose in New York, New York or at such other office or agency of the Corporation as may be maintained or caused to be maintained for such purpose, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however , that payment of the principal (and premium, if any) and interest may be made at the option of the Corporation (i) by check mailed to the address of the Person entitled thereto as such address shall appear on the Security Register or (ii) by wire transfer to an account maintained by the payee located in the United States; provided, that principal paid in relation to any Security, redeemed at the option of the Corporation or upon Maturity, shall be paid to the holder of such Security only upon presentation and surrender of such Security to such office of agency referred to above.

[The Securities are subject to redemption upon not less than 30 nor more than 60 days’ notice, at any time after [date and year], as a whole or in part, at the election of the Corporation[, at a Redemption Price equal to the percentage of the principal amount set forth below if redeemed during the 12-month period beginning [date], of the years indicated:

 

Year

   Redemption
Price
     Year      Redemption
Price
 
     %            %   
     %            %   
     %            %   

 

* Include if a discount security.
** Include in a global security.

 

Exhibit A-4


and thereafter] at 100% of the principal amount, together in the case of any such redemption with accrued interest, if any, to the Redemption Date, all as provided in the Indenture.]

[The Securities are also subject to redemption on [date] in each year commencing in [year] through the operation of a sinking fund, at a Redemption Price equal to 100% of the principal amount, together with accrued interest to the Redemption Date, all as provided in the Indenture. The sinking fund provides for the [mandatory] redemption on [date] in each year beginning with the year [year] of $         aggregate principal amount of Securities. [In addition, the Corporation may, at its option, elect to redeem up to an additional $         aggregate principal amount of Securities on any such date.] Securities acquired or redeemed by the Corporation (other than through operation of the sinking fund) may be credited against subsequent [mandatory] sinking fund payments.]*

[The Securities are subject to repayment at the option of the Holders thereof on [Repayment Date(s)] at a Repayment Price equal to      % of the principal amount, together with accrued interest to the Repayment Date, all as provided in the Indenture. To be repaid at the option of the Holder, this Security, with the “Option to Elect Repayment” form duly completed by the Holder hereof (or the Holder’s attorney duly authorized in writing), must be received by the Corporation at its office or agency maintained for that purpose in New York, New York not earlier than 45 days nor later than 30 days prior to the Repayment Date. Exercise of such option by the Holder of this Security shall be irrevocable unless waived by the Corporation.]**

In the case of any redemption [repayment] of Securities, interest installments whose Stated Maturity is on or prior to the Redemption Date [Repayment Date] will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Date referred to on the face hereof. Securities (or portions thereof) for whose redemption [repayment] provision is made in accordance with the Indenture shall cease to bear interest from and after the Redemption Date [Repayment Date].

In the event of redemption [repayment] of this Security in part only, a new Security or Securities for the unredeemed [unpaid] portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.

If an Event of Default shall occur and be continuing, the principal of all the Securities may be declared due and payable in the manner and with the effect provided in the Indenture.

The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Corporation on this Security and (b) certain restrictive covenants and the related Defaults and Events of Default, upon compliance by the Corporation with certain conditions set forth therein, which provisions apply to this Security.

 

* Include if the Securities are subject to a sinking fund.
** Include if the Securities are subject to repayment at the option of the Holders.

 

Exhibit A-5


The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Corporation and the rights of the Holders under the Indenture at any time by the Corporation and the Trustee with the consent of the Holders of a majority in aggregate principal amount of all affected Securities at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities affected thereby, to waive compliance by the Corporation with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security.

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest on this Security at the times, place, and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable on the Security Register of the Corporation, upon surrender of this Security for registration of transfer at the office or agency of the Corporation maintained or caused to be maintained for such purpose in New York, New York duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Corporation and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

The Securities are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Securities are exchangeable for a like aggregate principal amount of Securities of a different authorized denomination, as requested by the Holder surrendering the same.

No service charge shall be made for any registration of transfer or exchange of Securities, but the Corporation may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Prior to the time of due presentment of this Security for registration of transfer, the Corporation, the Trustee and any agent of the Corporation or the Trustees may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Corporation, the Trustee nor any agent shall be affected by notice to the contrary.

Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day months. For the purposes of the Interest Act (Canada), the yearly rate of interest

 

Exhibit A-6


which is equivalent to the rate payable hereunder is the rate payable multiplied by the actual number of days in the year and divided by 360.

*[If at any time, (i) the Depositary notifies the Corporation that it is unwilling or unable or no longer qualifies to continue as Depositary or if at any time the Depositary shall no longer be registered or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation and a successor depositary is not appointed by the Corporation within 90 days after the Corporation receives such notice or becomes aware of such condition, as the case may be, or (ii) the Corporation determines that the Securities shall no longer be represented by a global Security or Securities, then in such event the Corporation will execute and the Trustee will authenticate and deliver Securities in definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of this Security in exchange for this Security. Such Securities in definitive registered form shall be registered in such names and issued in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.]

The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York.

All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

* Include for global security.

 

Exhibit A-7


[OPTION TO ELECT REPAYMENT]

The undersigned hereby irrevocably requests and instructs the Corporation to repay the within Security [(or the portion thereof specified below)], pursuant to its terms, on the “Repayment Date” first occurring after the date of receipt of the within Security as specified below, at a Repayment Price equal to     % of the principal amount thereof, together with accrued interest to the Repayment Date, to the undersigned at:

(Please Print or Type Name and Address of the Undersigned.)

For this Option to Elect Repayment to be effective, this Security with the Option to Elect Repayment duly completed must be received not earlier than 45 days prior to the Repayment Date and not later than 30 days prior to the Repayment Date by the Corporation at its office or agency in [New York, New York].

If less than the entire principal amount of the within Security is to be repaid, specify the portion thereof (which shall be $ 1,000 or an integral multiple thereof) which is to be repaid: $                     .

If less than the entire principal amount of the within Security is to be repaid, specify the denomination(s) of the Security(ies) to be issued for the unpaid amount ($1,000 or any integral multiple of $ 1,000): $                     .

Dated:

Note: The signature to this Option to Elect Repayment must correspond with the name as written upon the face of the within Security in every particular without alterations or enlargement or any change whatsoever.]

 

Exhibit A-8


ASSIGNMENT FORM*

To assign this Security, fill in the form below:

I or we assign and transfer this Security to

(INSERT ASSIGNEE’S SOC. SEC., SOC. INS. OR TAX ID NO.)

(Print or type assignee’s name, address and zip or postal code)

and irrevocably appoint             

             agent

to transfer this Security on the books of the Corporation. The agent may substitute another to act for him.

Dated: Your Signature:             

(Sign exactly as name appears on the other side of

this Security)

Signature Guarantee:             

(Signature must be guaranteed by a commercial bank or trust company, by a member or members’ organization of The New York Stock Exchange or by another eligible guarantor institution as defined in Rule 17Ad-15 under the Securities Exchange Act of 1934)

EXHIBIT B

FORMS OF CERTIFICATION

EXHIBIT B-1

FORM OF CERTIFICATE TO BE GIVEN BY

PERSON ENTITLED TO RECEIVE BEARER SECURITY

 

* Omit if a global security.

 

Exhibit A-9


OR TO OBTAIN INTEREST PAYABLE PRIOR

TO THE EXCHANGE DATE

CERTIFICATE

[Insert title or sufficient description

of Securities to be delivered]

This is to certify that as of the date hereof, and except as set forth below, the above-captioned Securities held by you for our account (i) are owned by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States federal income taxation regardless of its source (“United States person(s)”), (ii) are owned by United States person(s) that are (a) foreign branches of United States financial institutions (financial institutions, as defined in United States Treasury Regulations Section 2.165-12(c)(1)(v) are herein referred to as “financial institutions”) purchasing for their own account or for resale, or (b) United States person(s) who acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution hereby agrees, on its own behalf or through its agent, that you may advise [Name of Issuer] or its agent that such financial institution will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are owned by United States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or foreign financial institution described in clause (iii) above (whether or not also described in clause (i) or (ii)), this is to further certify that such financial institution has not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.

As used herein, “United States” means the United States of America (including the states and the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.

We undertake to advise you promptly by telex on or prior to the date on which you intend to submit your certification relating to the above-captioned Securities held by you for our account in accordance with your Operating Procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applied as of such date.

This certificate excepts and does not relate to [U.S.$]             of such interest in the above-captioned Securities in respect of which we are not able to certify and as to which

 

Exhibit B-2


we understand an exchange for an interest in a Permanent Global Security or an exchange for and delivery of definitive Securities (or, if relevant, collection of any interest) cannot be made until we do so certify.

We understand that this certificate may be required in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof or any interested party in such proceedings.

Dated:

 

[To be dated no earlier than the 15 th day

prior to (i) the Exchange Date or (ii) the

relevant Interest Payment Date occurring

prior to the Exchange Date, as applicable]

 

[Name of Person Making Certification]

 

 

(Authorized Signatory)
Name:
Title:

 

Exhibit B-3


EXHIBIT B-2

FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR

AND CLEARSTREAM IN

CONNECTION WITH THE EXCHANGE OF A PORTION OF A

TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST

PAYABLE PRIOR TO THE EXCHANGE DATE

CERTIFICATE

[Insert title or sufficient description

of Securities to be delivered]

This is to certify that based solely on written certifications that we have received in writing, by tested telex or by electronic transmission from each of the persons appearing in our records as persons entitled to a portion of the principal amount set forth below (our “Member Organizations”) substantially in the form attached hereto, as of the date hereof, [U.S.$]             principal amount of the above-captioned Securities (i) is owned by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source (“United States person(s)”), (ii) is owned by United States person(s) that are (a) foreign branches of United States financial institutions (financial institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred to as “financial institutions”) purchasing for their own account or for resale, or (b) United States person(s) who acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such financial institution has agreed, on its own behalf or through its agent, that we may advise Alberta Energy Company Ltd. or its agent that such financial institution will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by United States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) and, to the further effect, that financial institutions described in clause (iii) above (whether or not also described in clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.

As used herein, “United States” means the United States of America (including the states and the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.

We further certify that (i) we are not making available herewith for exchange (or, if relevant, collection of any interest) any portion of the temporary global Security representing

 

Exhibit B-2-1


the above-captioned Securities excepted in the above-referenced certificates of Member Organizations and (ii) as of the date hereof we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member Organizations with respect to any portion of the part submitted herewith for exchange (or, if relevant, collection of any interest) are no longer true and cannot be relied upon as of the date hereof.

We understand that this certification is required in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.

Dated:

 

[To be dated no earlier than the Exchange

Date or the relevant Interest Payment Date

occurring prior to the Exchange Date, as applicable]

 

[MORGAN GUARANTY TRUST

COMPANY OF NEW YORK, BRUSSELS

OFFICE, as Operator of the Euroclear System]

[Clearstream]

 

 

By                                                                                                    

 

Exhibit B-2-2

Exhibit 4.15

FIRST SUPPLEMENTAL INDENTURE

FIRST SUPPLEMENTAL INDENTURE (the “Supplemental Indenture”), dated as of January 1, 2003 by and among EnCana Corporation, a corporation duly organized and existing under the laws of Canada (the “Amalgamated Company”), having its principal office at 1800, 855 2 nd Street S.W., Calgary, Alberta T2P 2S5, and The Bank of New York, as trustee under the Indenture referred to below (the “Trustee”).

WHEREAS, EnCana Pipelines Ltd., a corporation duly continued under the laws of Canada, has amalgamated with Alberta Energy Company Ltd. (“AEC”), a corporation duly continued under the laws of Canada;

WHEREAS, AEC and the Trustee are parties to that certain indenture, dated as of September 15, 2000 (the “Indenture”), under which AEC may issue from time to time unsecured debentures, notes or other evidences of indebtedness in an unlimited aggregate principal amount issuable in one or more series as provided therein and pursuant to which AEC’s 7.650% Notes due 2010, 8.125% Notes due 2030 and 7.375% Notes due 2031 (collectively, the “Securities”) were issued;

WHEREAS, Section 801(1) of the Indenture provides, in part, that AEC may amalgamate with another corporation so long as the successor company shall expressly assume by supplemental indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, or shall assume by operation of law, AEC’s obligations under the Securities and the Indenture;

WHEREAS, AEC has amalgamated with EnCana Corporation and EnCana Midstream Limited, another wholly-owned subsidiary of EnCana Corporation, to form the Amalgamated Company, and the Amalgamated Company has assumed by operation of law AEC’s obligations under the Securities and the Indenture;

WHEREAS, Section 901(1) of the Indenture provides for the entering into of a supplemental indenture to evidence, among other things, the succession of another Person to AEC and the assumption by any such successor of the covenants of AEC contained in the Indenture and in the Securities;

WHEREAS, the entry into of this Supplemental Indenture by the parties hereto is in all respects authorized by the provisions of the Indenture, and all things necessary to make this Supplemental Indenture a valid agreement of the Amalgamated Company in accordance with its terms have been done.

The parties hereto agree as follows:

1. Definitions . All capitalized terms used and not otherwise defined herein have the respective meanings ascribed to such terms in the Indenture.


2. Effect . This Supplemental Indenture shall become effective upon its execution and delivery by the parties hereto.

3. Succession to Indenture . The Amalgamated Company hereby succeeds to and is substituted for AEC under the Indenture and the Securities, with the same effect as if the Amalgamated Company had been a party to the Indenture. The Amalgamated Company agrees to comply with all applicable terms of the Indenture.

4. Assumption of Obligations and Covenants . The Amalgamated Company hereby assumes all obligations and covenants of, and may exercise every right and power of, AEC under the Indenture and the Securities.

5. Responsibility of Trustee . The Trustee shall not be responsible for the validity as to the Amalgamated Company or sufficiency of this Supplemental Indenture or as to the due execution thereof by the Amalgamated Company or as to recitals of fact contained herein, all of which are made solely by the Amalgamated Company.

6. Governing Law . This Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York.

7. Counterparts . This Supplemental Indenture may be executed in one or more counterparts, each of which shall be an original, but all of which together shall constitute one and the same document.

8. Effect on Indenture . This Supplemental Indenture shall form a part of the Indenture for all purposes and every holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby. Except as expressly set forth herein, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.

[Remainder of page intentionally left blank.]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Supplemental Indenture as of the date first above written.

 

EnCana Corporation
By:  

/s/ Thomas G. Hinton

Name:   Thomas G. Hinton
Title:   Treasurer
By:  

/s/ Kerry D. Dyte

Name:   Kerry D. Dyte
Title:   Corporate Secretary

The Bank of New York,

as Trustee

By:  

/s/ Vanessa Mack

Name:   Vanessa Mack
Title:   Assistant Vice President

 

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Exhibit 4.16

SECOND SUPPLEMENTAL INDENTURE

SECOND SUPPLEMENTAL INDENTURE (the “Supplemental Indenture”), dated as of November 20, 2012 by and among Encana Corporation, a corporation duly organized and existing under the laws of Canada (the “Corporation”), having its principal office at 1800, 855 2nd Street S.W., Calgary, Alberta T2P 2S5, and The Bank of New York Mellon (formerly known as The Bank of New York), as trustee under the Indenture referred to below (the “Trustee”).

WHEREAS, the Corporation (as successor by amalgamation to Alberta Energy Company Ltd.) and the Trustee are parties to that certain indenture, dated as of September 15, 2000 (as amended by the First Supplemental Indenture dated as of January 1, 2003, the “Indenture”), under which the Corporation may issue from time to time unsecured debentures, notes or other evidences of indebtedness in an unlimited aggregate principal amount issuable in one or more series as provided therein and pursuant to which the Corporation’s 8.125% Notes due 2030 and the Corporation’s 7.375% Notes due 2031 (collectively, the “Securities”) were issued;

WHEREAS, Section 902 of the Indenture provides that with the consent of the Holders of not less than a majority in principal amount of all Outstanding Securities, the Corporation, when authorized by or pursuant to a Board Resolution, and the Trustee may enter into indentures supplemental thereto for the purpose of changing in any manner or eliminating any of the provisions of the Indenture or modifying in any manner the rights of the Holders of the Securities under the Indenture;

WHEREAS, the Corporation issued a Consent Solicitation Statement dated as of November 5, 2012 (the “Consent Solicitation Statement”) to, among other things, solicit consents from the Holders to certain amendments to the Indenture as set forth in the Consent Solicitation Statement;

WHEREAS, the Holders of not less than a majority in principal amount of the Outstanding Securities have given and not withdrawn their written consent to this Supplemental Indenture; and

WHEREAS, the entry into of this Supplemental Indenture by the parties hereto is in all respects authorized by the provisions of the Indenture, and all things necessary to make this Supplemental Indenture a valid agreement of the Corporation and the Trustee in accordance with its terms have been done.

NOW, THEREFORE, for and in consideration of the premises contained herein, it is mutually covenanted and agreed for the benefit of all Holders of the Securities as follows:

1. Definitions . All capitalized terms used and not otherwise defined herein have the respective meanings ascribed to such terms in the Indenture.


2. Amendments . Section 101(3) is hereby amended and restated in its entirety to read as follows:

“all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” means generally accepted accounting principles in Canada which are in effect from time to time, unless the Person’s most recent audited or quarterly financial statements are not prepared in accordance with generally accepted accounting principles in Canada, in which case “generally accepted accounting principles” shall mean generally accepted accounting principles in the United States in effect from time to time; and”

3. Effect . This Supplemental Indenture shall become effective upon its execution and delivery by the parties hereto.

4. Responsibility of Trustee . The Trustee shall not be responsible for the validity as to the Corporation or sufficiency of this Supplemental Indenture or as to the due execution hereof by the Corporation or as to recitals of fact contained herein, all of which are made solely by the Corporation.

5. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

6. Counterparts . This Supplemental Indenture may be executed in one or more counterparts, each of which shall be an original, but all of which together shall constitute one and the same document.

7. Effect on Indenture . This Supplemental Indenture shall form a part of the Indenture for all purposes and every holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby. Except as expressly set forth herein, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.

[ Remainder of page intentionally left blank .]

 

2


IN WITNESS WHEREOF, the parties have executed this Supplemental Indenture as of the date first above written.

 

Encana Corporation
By:   /s/ Corey D. Code
Name:   Corey D. Code
Title:  

Vice-President, Portfolio

Management & Assistant Treasurer

The Bank of New York Mellon, as Trustee
By:   /s/ Catherine F. Donohue

Name:

Title:

 

CATHERINE F. DONOHUE

VICE PRESIDENT

[ Signature Page to Second Supplemental Indenture to 2000 Indenture .]

Exhibit 4.17

INDENTURE, dated as of November 5, 2001 between PANCANADIAN PETROLEUM LIMITED, a corporation duly organized and existing under the laws of Canada (herein called the “ Company ”), having its principal office at PanCanadian Energy Plaza, 150-9 th Avenue S.W., Calgary, Alberta T2P 3H9, and THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK, a trust company duly organized and existing under the laws of New York, as trustee (herein called the “ Trustee ”).

RECITALS OF THE COMPANY

The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness (herein called the “ Securities ”), which may be convertible into or exchangeable for any securities of any person (including the Company), to be issued in one or more series as in this Indenture provided.

This Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, that are required to be part of this Indenture and shall, to the extent applicable, be governed by such provisions.

All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows:

ARTICLE ONE

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

SECTION 101. Definitions.

For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;

(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein, and the terms “cash transaction” and “self-liquidating paper”, as used in TIA Section 311, shall have the meanings assigned to them in the rules of the Commission adopted under the Trust Indenture Act;

(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with Canadian generally accepted accounting principles,


and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in Canada at the date of such computation; and

(4) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.

Certain terms, used principally in Article Three, are defined in that Article.

Accelerated Indebtedness ” has the meaning specified in Section 501(5).

Act ”, when used with respect to any Holder, has the meaning specified in Section 104.

Additional Amounts ” has the meaning specified in Section 1005.

Affiliate ” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

Authenticating Agent ” means any Person appointed by the Trustee to act on behalf of the Trustee pursuant to Section 611 to authenticate Securities.

Authorized Newspaper ” means a newspaper (which in the case of Canada, will, if practicable, be The Globe & Mail, in the case of The City of New York, will, if practicable, be The Wall Street Journal (Eastern Edition), in the case of the United Kingdom will, if practicable, be The Financial Times (London Edition) and, in the case of Luxembourg, will, if practicable, be The Luxembourg (Wort), in the English language or in an official language of the country of publication, customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in Canada, The City of New York, the United Kingdom or Luxembourg, as applicable. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on any Business Day.

Bearer Security ” means any Security except a Registered Security.

Board of Directors ” means either the board of directors of the Company or any duly authorized committee of that board.

Board Resolution ” means a copy of a resolution certified by the Corporate Secretary or an Assistant Corporate Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

 

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Business Day ”, when used with respect to any Place of Payment or any other particular location referred to in this Indenture or in the Securities, means, unless otherwise specified with respect to any Securities pursuant to Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment or other location are authorized or obligated by law or executive order to close.

Capital Lease Obligation ” means the obligation of a Person, as lessee, to pay rent or other amounts to the lessor under a lease of real or personal property which is required to be classified and accounted for as a capital lease on a consolidated balance sheet of such Person in accordance with GAAP.

calculation period ” has the meaning specified in Section 311.

Clearstream ” means Clearstream Banking, société anonyme, or its successor.

Commission ” means the U.S. Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

Common Depositary ” has the meaning specified in Section 304.

Company ” means the Person named as the “Company” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.

Company Request ” or “ Company Order ” means a written request or order signed in the name of the Company by its Chairman, its President, Vice President, its Treasurer an Assistant Treasurer, its Corporate Secretary or an Assistant Corporate Secretary and delivered to the Trustee.

Component Currency ” has the meaning specified in Section 312.

Consolidated Net Tangible Assets ” means the total amount of assets of any Person on a consolidated basis (less applicable reserves and other properly deductible items) after deducting therefrom:

 

  (i) all current liabilities (excluding any current liabilities which are by their terms extendible or renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed);

 

  (ii) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles; and

 

  (iii) appropriate adjustments on account of minority interests of other persons holding shares of the Subsidiaries of such Person, all as set forth on the most recent balance sheet of such Person and its consolidated Subsidiaries (but, in any event,

 

3


as of a date within 150 days of the date of determination) and computed in accordance with GAAP.

Conversion Date ” has the meaning specified in Section 312(d).

Conversion Event ” means the cessation of use of (i) a Foreign Currency (other than the Euro or other currency unit) both by the government of the country which issued such Currency and by a central bank or other public institution of or within the international banking community for the settlement of transactions, (ii) the Euro or (iii) any currency unit (or composite currency) other than the Euro for the purposes for which it was established.

Corporate Trust Office ” means the principal corporate trust office of the Trustee, at which at any particular time its corporate trust business shall be administered, which office on the date of execution of this Indenture is located at One Liberty Plaza, New York, New York 10006, except that with respect to presentation of Securities for payment or for registration of transfer or exchange, such term shall mean the office or agency of the Trustee at which, at any particular time, its corporate agency business shall be conducted.

corporation ” includes corporations, associations, companies and business trusts.

coupon ” means any interest coupon appertaining to a Bearer Security.

Currency ” means any currency or currencies, composite currency or currency unit or currency units, including, without limitation, the Euro, issued by the government of one or more countries or by any recognized confederation or association of such governments.

Current Assets ” means assets which in the ordinary course of business are expected to be realized in cash or sold or consumed with 12 months.

Debt ” means notes, bonds, debentures or other similar evidences of indebtedness for money borrowed.

Default ” means any event which is, or after notice or passage of time or both would be, an Event of Default.

Defaulted Interest ” has the meaning specified in Section 307.

Depositary for Securities ” means The Depository Trust Company, or any successor thereto.

Dollar ” or “ $ ” means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time shall be legal tender for the payment of public and private debts.

Dollar Equivalent of the Currency Unit ” has the meaning specified in Section 312(g).

Dollar Equivalent of the Foreign Currency ” has the meaning specified in Section 312(f).

 

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Election Date ” has the meaning specified in Section 312(h).

Equity ” means, with respect to any Person at any particular time, the shareholders’ equity appearing in such Person’s most recent audited consolidated financial statements; provided that the total of the book value of issued and fully paid preferred shares shall be included and appraisal increments or appraisal surpluses shall not be included in Equity.

Euro ” means the single currency of the participating member states from time to time of the European Union described in legislation of the European Counsel for the operation of a single unified European currency (whether known as the Euro or otherwise).

Euroclear ” means Morgan Guaranty Trust Company of New York, Brussels Office, or its successor as operator of the Euroclear System.

Event of Default ” has the meaning specified in Section 501.

Exchange Date ” has the meaning specified in Section 304.

Exchange Rate Agent ” means, with respect to Securities of or within any series, unless otherwise specified with respect to any Securities pursuant to Section 301, a New York Clearing House bank, designated pursuant to Section 301 or Section 313.

Exchange Rate Officer’s Certificate ” means a tested telex or a certificate setting forth (i) the applicable Market Exchange Rate and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if any) and interest, if any (on an aggregate basis and on the basis of a Security having the lowest denomination principal amount determined in accordance with Section 302 in the relevant Currency), payable with respect to a Security of any series on the basis of such Market Exchange Rate, sent (in the case of a telex) or signed (in the case of a certificate) by the Treasurer, any Vice President or any Assistant Treasurer of the Company.

Extension Notice ” has the meaning specified in Section 308.

Extension Period ” has the meaning specified in Section 308.

Federal Bankruptcy Code ” means the Bankruptcy Act of Title 11 of the United States Code, as amended from time to time.

Financial Instrument Obligations ” means obligations arising under:

 

  (i) interest rate swap agreements, forward rate agreements, floor, cap or collar agreements, futures or options, insurance or other similar agreements or arrangements, or any combination thereof, entered into by a Person of which the subject matter is interest rates or pursuant to which the price, value or amount payable thereunder is dependent or based upon interest rates in effect from time to time or fluctuations in interest rates occurring from time to time;

 

  (ii)

currency swap agreements, cross-currency agreements, forward agreements, floor, cap or collar agreements, futures or options, insurance or other similar agreements or arrangements, or any combination thereof,

 

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  entered into by a Person of which the subject matter is currency exchange rates or pursuant to which the price, value or amount payable thereunder is dependent or based upon currency exchange rates in effect from time to time or fluctuations in currency exchange rates occurring from time to time; and

 

  (iii) commodity swap or hedging agreements, floor, cap or collar agreements, commodity futures or options or other similar agreements or arrangements, or any combination thereof, entered into by a Person of which the subject matter is one or more commodities or pursuant to which the price, value or amount payable thereunder is dependent or based upon the price of one or more commodities in effect from time to time or fluctuations in the price of one or more commodities occurring from time to time.

First Currency ” has the meaning specified in Section 115.

Foreign Currency ” means any Currency other than Currency of the United States.

GAAP ” means generally accepted accounting principles which are in effect from time to time in Canada.

Government Obligations ” means, unless otherwise specified with respect to any series of Securities pursuant to Section 301, securities which are (i) direct obligations of the government which issued the Currency in which the Securities of a particular series are payable or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the government which issued the Currency in which the Securities of such series are payable, the payment of which is unconditionally guaranteed by such government, which, in either case, are full faith and credit obligations of such government payable in such Currency and are not callable or redeemable at the option of the issuer thereof and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of any such Government Obligation held by such custodian for the account of the holder of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest or principal of the Government Obligation evidenced by such depository receipt.

Holder ” means, in the case of a Registered Security, the Person in whose name a Security is registered in the Security Register and, in the case of a Bearer Security, the bearer thereof and, when used with respect to any coupon, shall mean the bearer thereof.

Indebtedness ” means at any time, and whether or not contingent, all items of indebtedness in respect of any amounts borrowed which, in accordance with GAAP, would be recorded as indebtedness in the consolidated financial statements of any Person as at the date as of which Indebtedness is to be determined, and in any event including, without duplication:

 

  (i) any obligation for borrowed money;

 

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  (ii) any obligation evidenced by bonds, debentures, notes, guarantees or other similar instruments, including, without limitation, any such obligations incurred in connection with the acquisition of property, assets or businesses;

 

  (iii) any Purchase Money Obligation;

 

  (iv) any reimbursement obligation with respect to letters of credit, bankers’ acceptances or similar facilities;

 

  (v) any obligation issued and assumed as the deferred purchase price of property or services;

 

  (vi) any Capital Lease Obligation;

 

  (vii) any obligation to pay rent or other payment amounts with respect to any Sale and Leaseback Transaction;

 

  (viii) any payment obligation under Financial Instrument Obligations at the time of determination;

 

  (ix) any Indebtedness in respect of any amounts borrowed or any Purchase Money Obligation secured by any Lien existing on property owned subject to such Lien, whether or not the Indebtedness or Purchase Money Obligation secured thereby shall have been assumed; and

 

  (x) guarantees, indemnities, endorsements (other than endorsements for collection in the ordinary course of business) or other contingent liabilities in respect of obligations of another Person for Indebtedness of that other Person in respect of any amounts borrowed by that other Person.

Indenture ” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, and shall include the terms of particular series of Securities established as contemplated by Section 301; provided , however , that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities for which such Person is Trustee established as contemplated by Section 301, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto executed and delivered after such Person had become such Trustee but to which such Person, as such Trustee, was not a party.

 

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Indexed Security ” means a Security the terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount thereof at original issuance.

interest ”, when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity at the rate prescribed in such Original Issue Discount Security.

Interest Payment Date ”, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.

Judgment Currency ” has the meaning specified in Section 114.

Lien ” means, with respect to any properties or assets, any mortgage or deed of trust, pledge, hypothecation, assignment, security interest, lien, charge, encumbrance, preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever on or with respect to such properties or assets (including, without limitation, any conditional sale or other title retention agreement having substantially the same economic effect as any of the foregoing).

Market Exchange Rate ” means, unless otherwise specified with respect to any Securities pursuant to Section 301, (i) for any conversion involving a currency unit on the one hand and Dollars or any Foreign Currency on the other, the exchange rate between the relevant currency unit and Dollars or such Foreign Currency calculated by the method specified pursuant to Section 301 for the Securities of the relevant series, (ii) for any conversion of Dollars into any Foreign Currency, the noon (New York City time) buying rate for such Foreign Currency for cable transfers quoted in New York City as certified for customs purposes by the Federal Reserve Bank of New York and (iii) for any conversion of one Foreign Currency into Dollars or another Foreign Currency, the spot rate at noon local time in the relevant market at which, in accordance with normal banking procedures, the Dollars or Foreign Currency into which conversion is being made could be purchased with the Foreign Currency from which conversion is being made from major banks located in either New York City, London or any other principal market for Dollars or such purchased Foreign Currency, in each case determined by the Exchange Rate Agent. Unless otherwise specified with respect to any Securities pursuant to Section 301, in the event of the unavailability of any of the exchange rates provided for in the foregoing clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or more major banks in New York City, London, England or another principal market for the Currency in question, or such other quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is more than one market for dealing in any Currency by reason of foreign exchange regulations or otherwise, the market to be used in respect of such Currency shall be that upon which a non-resident issuer of securities designated in such Currency would purchase such Currency in order to make payments in respect of such securities.

Maturity ”, when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption, notice of option to elect repayment or otherwise.

 

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Officer’s Certificate ” means a certificate signed by any two of the Chairman, the President, a Vice President, the Treasurer, an Assistant Treasurer, the Corporate Secretary or an Assistant Corporate Secretary of the Company, and delivered to the Trustee.

Opinion of Counsel ” means a written opinion of counsel, who may be counsel for the Company, including an employee of the Company, and who shall be acceptable to the Trustee.

Optional Reset Date ” has the meaning specified in Section 307.

Original Issue Discount Security ” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.

Other Currency ” has the meaning specified in Section 115.

Outstanding ”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except :

(i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

(ii) Securities, or portions thereof, for whose payment or redemption or repayment at the option of the Holder money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities and any coupons appertaining thereto; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;

(iii) Securities, except to the extent provided in Sections 1402 and 1403, with respect to which the Company has effected defeasance and/or covenant defeasance as provided in Article Fourteen; and

(iv) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company;

provided , however , that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum purposes, and for the purpose of making the calculations required by TIA Section 313, (i) the principal amount of an Original Issue Discount Security that may be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the amount of principal thereof that would be (or shall have been declared to be) due and payable, at the time of such determination, upon a declaration of acceleration of the maturity thereof pursuant to Section 502, (ii) the principal amount of any Security denominated in a Foreign

 

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Currency that may be counted in making such determination or calculation and that shall be deemed Outstanding for such purpose shall be equal to the Dollar equivalent, determined as of the date such Security is originally issued by the Company as set forth in an Exchange Rate Officer’s Certificate delivered to the Trustee, of the principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent as of such date of original issuance of the amount determined as provided in clause (i) above) of such Security, (iii) the principal amount of any Indexed Security that may be counted in making such determination or calculation and that shall be deemed outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise provided with respect to such Security pursuant to Section 301, and (iv) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making such calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor.

pari passu ”, when used with respect to the ranking of any Debt of any Person in relation to other Debt of such Person, means that each such Debt (a) either (i) is not subordinated in right of payment to any other Debt of such Person or (ii) is subordinate in right of payment to the same Debt of such Person as is the other and is so subordinate to the same extent and (b) is not subordinate in right of payment to the other or to any Debt of such Person as to which the other is not so subordinate.

Paying Agent ” means any Person (including the Company acting as Paying Agent) authorized by the Company to pay the principal of (or premium, if any) or interest, if any, on any Securities on behalf of the Company.

Permitted Liens ” of any Person at any particular time means:

(i) Liens existing on the date hereof;

(ii) Liens on Current Assets given in the ordinary course of business and for the purpose of carrying on the same, to any financial institution or others to secure any Indebtedness payable upon demand or maturing (including any right of extension or renewal) 12 months or less from the date such Indebtedness is incurred;

(iii) Purchase Money Mortgages;

(iv) Liens in connection with Indebtedness, which, by its terms, is nonrecourse to the Company or Restricted Subsidiaries of the Company;

(v) Liens giving security on any specific property in favor of a government within or outside Canada or any political subdivision, department, agency or instrumentality thereof to secure the performance of any covenant or obligation to or in favor of or entered into at the request of any such authorities where such security is required pursuant to any contract, statute, order or regulation;

 

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(vi) Liens on property or assets existing at the time of acquisition thereof by such Person, provided that such Liens were not incurred in anticipation of such acquisition;

(vii) Liens or obligations to incur Liens on property or assets of a corporation or other Person existing at the time such corporation or other Person becomes a Subsidiary of such Person, or is liquidated or merged into, or amalgamated or consolidated with, such Person or Subsidiary of such Person or at the time of the sale, lease or other disposition to such Person or Subsidiary of such Person of all or substantially all of the properties and assets of a corporation or other Person, provided that such Liens were not incurred in anticipation of such corporation becoming a Subsidiary of such Person;

(viii) Liens upon property of whatsoever nature other than Restricted Property;

(ix) Liens on any specific properties or any interest therein, construction thereon or improvement thereto, and on any receivables, inventory, equipment, chattel paper, contract rights, intangibles and other assets, rights or collateral specifically connected with such properties, incurred (A) to secure all or any part of the financing for acquisition, surveying, exploration, drilling, extraction, development, operation, production, construction, alternation, repair or improvement of, in, under or on such properties and the plugging and abandonment of wells located thereon (it being understood that, in the case of oil and natural gas producing properties (including oil sands properties), or in any interest therein, financing incurred for “development” shall include financing incurred for all facilities relating to such properties or to projects, ventures or other arrangements of which such properties form a part or which relate to such properties or interests), or (B) for acquiring ownership of any Person which owns any such property or interest therein, provided that such Lien is limited to such property or such interest therein owned by any such Person;

(x) Liens arising under partnership agreements, oil and natural gas leases, overriding royalty agreements, net profits agreements, production payment agreements, royalty trust agreements, master limited partnership agreements, farm-out agreements, division orders, contracts for the sale, purchase, exchange, storage, transportation, distribution, gathering or processing of Restricted Property, unitizations and pooling designations, declarations, orders and agreements, development agreements, operating agreements, production sales contracts (including security in respect of take or pay or similar obligations thereunder), area of mutual interest agreements, natural gas balancing or deferred production agreements, injection, repressuring and recycling agreements, salt water or other disposal agreements, seismic or geophysical permits or agreements, which in each of the foregoing cases is customary in the oil and natural gas business, and other agreements which are customary in the oil and natural gas business, provided in all instances that such Lien is limited to the assets that are the subject of the relevant agreement;

(xi) Liens granted in the ordinary course of business in connection with Financial Instrument Obligations;

(xii) Liens in favor of the Company or a Restricted Subsidiary of the Company;

 

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(xiii) Liens in favor of PanCanadian Energy Corporation, the Company or any Subsidiary thereof to secure Indebtedness owed to PanCanadian Energy Corporation, the Company or any Subsidiary thereof; and

(xiv) any renewal, refunding or extension of any of the above-mentioned Liens, provided that the principal amount of Indebtedness secured thereby after such renewal, refunding or extension is not increased and the Lien is limited to the property or assets originally subject thereto and any improvements thereon.

Person ” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

Place of Payment ” means, when used with respect to the Securities of or within any series, the place or places where the principal of (and premium, if any) and interest, if any, on such Securities are payable as specified as contemplated by Sections 301 and 1002.

Predecessor Security ” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a mutilated, destroyed, lost or stolen coupon appertains shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security or the Security to which the mutilated, destroyed, lost or stolen coupon appertains, as the case may be.

Purchase Money Mortgage ” means any Lien on property created, issued or assumed to secure a Purchase Money Obligation in respect of such property and also means any agreement or other instrument entered into for the acquisition of or right to acquire any property or any interest therein in which agreement or instrument there is reserved or which obligates such Person or any of its Restricted Subsidiaries to pay a royalty, rent or percentage of profits or proceeds won from such property and which charges or secures such property or interest therein or the lands containing the same with the payment thereof and includes any extension, renewal, refunding or refinancing thereof so long as the principal amount outstanding immediately prior to the date of such extension, renewal, refunding or refinancing is not increased; provided, however, that such Lien is created, issued or assumed prior to, concurrently with or within 180 days following the acquisition of such property, except in the case of property on which improvements are constructed, installed or added, in which case the same shall be created or issued within a period of 180 days after Substantial Completion of such improvements.

Purchase Money Obligation ” means any Indebtedness assumed as, or issued and incurred to provide funds to pay, all or part of (i) the purchase price (which shall be deemed to include any costs of construction or installation) of any property acquired after the date of this Indenture or (ii) the cost of improvements made after the date of this Indenture to any property.

Redemption Date ”, when used with respect to any Security to be redeemed, in whole or in part, means the date fixed for such redemption by or pursuant to this Indenture.

Redemption Price ”, when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.

 

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Registered Security ” means any Security registered in the Security Register.

Regular Record Date ” for the interest payable on any Interest Payment Date on the Registered Securities of or within any series means the date specified for that purpose as contemplated by Section 301.

Repayment Date ” means, when used with respect to any Security to be repaid at the option of the Holder, the date fixed for such repayment pursuant to this Indenture.

Repayment Price ” means, when used with respect to any Security to be repaid at the option of the Holder, the price at which it is to be repaid pursuant to this Indenture.

Required Currency ” has the meaning specified in Section 114.

Reset Notice ” has the meaning specified in Section 307.

Responsible Officer ”, when used with respect to the Trustee, means the chairman or any vice-chairman of the board of directors, the chairman or any vice-chairman of the executive committee of the board of directors, the chairman of the trust committee, the president, any vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant trust officer, the controller or any assistant controller or any other officer of the Trustee customarily performing functions similar to those performed by any of the above-designated officers, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.

Restricted Property ” means any oil, gas or mineral property of a primary nature and any facilities directly related to the mining, processing or manufacture of hydrocarbons, petrochemicals or minerals, or any of the constituents thereof or the derivatives therefrom and includes Voting Shares or other interests of a corporation or other Person which owns such property or facilities, but does not include any property or facilities used in connection with or necessarily incidental to the purchase, sale, storage, transportation or distribution of Restricted Property.

Restricted Securities ” means shares of stock or Debt of any Restricted Subsidiary.

Restricted Subsidiary ” means, on any date, (a) any Subsidiary which owns at the time Restricted Property; provided, however, such term shall not include a Subsidiary of such person if the assets of the Subsidiary (as determined on the basis of the Company’s percentage share of such assets but exclusive of its investment in any other Subsidiaries) constitute less than 10% of the Consolidated Net Tangible Assets of the Company and (b) any other Subsidiary which the board of directors of the Company shall have determined to be a Restricted Subsidiary, provided that immediately after such designation no Event of Default or event which, with the giving of notice or passage of time, would constitute an Event of Default shall exist. The board of directors of the Company may determine that a Restricted Subsidiary described in (b) shall cease to be a Restricted Subsidiary and shall become an Unrestricted Subsidiary if immediately after such Restricted Subsidiary becomes an Unrestricted Subsidiary, (x) the Company is in compliance with its covenant set forth in the last sentence in Section 1010 hereof, and (y) no

 

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Event of Default or event which, with the giving of notice or passage of time, would constitute an Event of Default shall exist.

Sale and Leaseback Transaction ” means any direct or indirect arrangement (excluding, however, any such arrangement between the Company and its Subsidiary or between one or more of its Subsidiaries) pursuant to which property is sold or transferred and is thereafter leased back from the purchaser or transferee thereof.

Securities ” has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture; provided , however , that if at any time there is more than one Person acting as Trustee under this Indenture, “Securities” with respect to the Indenture as to which such Person is Trustee shall have the meaning stated in the first recital of this Indenture and shall more particularly mean Securities authenticated and delivered under this Indenture, exclusive, however, of Securities of any series as to which such Person is not Trustee.

Security Register ” and “ Security Registrar ” have the respective meanings specified in Section 305.

Shareholders’ Equity ” means, with respect to a Subsidiary of the Company, the sum of (i) the shareholders’ equity of such Subsidiary computed in accordance with GAAP and (ii) Indebtedness created, issued or assumed by such Subsidiary to the Company for borrowed funds, which Indebtedness by its terms is stated to be subordinated, provided that the total of the book value of issued and fully paid preferred shares shall be included and appraisal increments or appraisal surpluses shall not be included in Shareholders’ Equity.

Special Record Date ” for the payment of any Defaulted Interest on the Registered Securities of or within any series means a date fixed by the Trustee pursuant to Section 307.

Specified Amount ” has the meaning specified in Section 312.

Stated Maturity ”, when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security or a coupon representing such installment of interest as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable, as such date may be extended pursuant to the provisions of Section 308.

Subsidiary ” of any Person means, on any date, any corporation or other Person of which Voting Shares or other interests carrying more than 50% of the voting rights attached to all outstanding Voting Shares or other interests are owned, directly or indirectly, by or for such Person or one or more Subsidiaries thereof.

Subsequent Interest Period ” has the meaning specified in Section 307.

Substantial Completion ” means, with respect to an improvement, the point at which the improvement is ready for use or is being used for the purpose for which it was intended.

 

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Trust Indenture Act ” or “ TIA ” means the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was executed, except as provided in Section 905.

Trustee ” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder; provided , however , that if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean only the Trustee with respect to Securities of that series.

United States ” means, unless otherwise specified with respect to any Securities pursuant to Section 301, the United States of America (including the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.

United States person ” means, unless otherwise specified with respect to any Securities pursuant to Section 301, an individual who is a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws of the United States or an estate or trust the income of which is subject to United States federal income taxation regardless of its source.

Unrestricted Subsidiary ” means a Subsidiary which is not or which has ceased to be a Restricted Subsidiary.

Valuation Date ” has the meaning specified in Section 312(c).

Vice President ”, when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president”.

Voting Shares ” means shares of any class of any corporation carrying voting rights under all circumstances, provided that, for the purposes of this definition, shares which only carry the right to vote conditionally on the happening of any event shall not be considered Voting Shares, nor shall any shares be deemed to cease to be Voting Shares solely by reason of a right to vote accruing to shares of another class or classes by reason of the happening of such an event, or solely because the right to vote may not be exercisable under the charter of the corporation.

Yield to Maturity ” means the yield to maturity, computed at the time of issuance of a Security (or, if applicable, at the most recent redetermination of interest on such Security) and as set forth in such Security in accordance with generally accepted United States bond yield computation principles.

 

 

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SECTION 102. Compliance Certificates and Opinions.

Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture (including any covenant compliance with which constitutes a condition precedent) relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.

Every certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture (other than pursuant to Section 1004) shall include:

(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;

(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion arc based;

(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and

(4) a statement as to whether, in the opinion of each such individual, such covenant or condition has been complied with.

SECTION 103. Form of Documents Delivered to Trustee.

In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care

 

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should know, that the certificate or opinion or representations with respect to such matters are erroneous.

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

SECTION 104. Acts of Holders.

(i) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of the Outstanding Securities of all series or one or more series, as the case may be, may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing. If Securities of a series are issuable as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of such series may, alternatively, be embodied in and evidenced by the record of Holders of Securities of such series voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of Securities of such series duly called and held in accordance with the provisions of Article Fifteen, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 1506.

(ii) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.

(iii) The principal amount and serial numbers of Registered Securities held by any Person, and the date of holding the same, shall be proved by the Security Register.

(iv) The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may be proved by the production of such Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary, wherever situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such Person had on deposit with such depositary, or exhibited to it, the Bearer Securities therein described; or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed

 

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by the Trustee to be satisfactory. The Trustee and the Company may assume that such ownership of any Bearer Security continues until (1) another certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, or (2) such Bearer Security is produced to the Trustee by some other Person, or (3) such Bearer Security is surrendered in exchange for a Registered Security, or (4) such Bearer Security is no longer Outstanding. The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may also be proved in any other manner that the Trustee deems sufficient.

(v) If the Company shall solicit from the Holders of Registered Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. Notwithstanding TIA Section 316(c), such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation of Holders generally in connection therewith and not later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than eleven months after the record date.

(vi) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.

SECTION 105. Notices, etc. to Trustee and Company.

Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other documents provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,

(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration Division, or

(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this Indenture or at any other address previously furnished in writing to the Trustee by the Company.

 

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SECTION 106. Notice to Holders; Waiver.

Where this Indenture provides for notice of any event to Holders of Registered Securities by the Company or the Trustee, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided. Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or not such Holder actually receives such notice.

In case, by reason of the suspension of or irregularities in regular mail service or by reason of any other cause, it shall be impractical to mail notice of any event to Holders of Registered Securities when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be sufficient giving of such notice for every purpose hereunder.

Except as otherwise expressly provided herein or otherwise specified with respect to any Securities pursuant to Section 301, where this Indenture provides for notice to Holders of Bearer Securities of any event, such notice shall be sufficiently given to Holders of Bearer Securities if published in an Authorized Newspaper in The City of New York and in such other city or cities as may be specified in such Securities on a Business Day at least twice, the first such publication to be not earlier than the earliest date, and not later than the latest date, prescribed for the giving of such notice. Any such notice shall be deemed to have been given on the date of the first such publication.

In case, by reason of the suspension of publication of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause, it shall be impracticable to publish any notice to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be given with the approval of the Trustee shall constitute sufficient notice to such Holders for every purpose hereunder. Neither the failure to give notice by publication to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of such notice with respect to other Holders of Bearer Securities or the sufficiency of any notice to Holders of Registered Securities given as provided herein.

Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.

Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

 

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SECTION 107. Effect of Headings and Table of Contents.

The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

SECTION 108. Successors and Assigns.

All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.

SECTION 109. Separability Clause.

In case any provision in this Indenture or in any Security or coupon shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

SECTION 110. Benefits of Indenture.

Nothing in this Indenture or in the Securities or coupons, express or implied, shall give to any Person, other than the parties hereto, any Authenticating Agent, any Paying Agent, any Securities Registrar and their successors hereunder and the Holders of Securities or coupons, any benefit or any legal or equitable right, remedy or claim under this Indenture.

SECTION 111. Governing Law.

This Indenture and the Securities and coupons shall be governed by and construed in accordance with the law of the State of New York. This Indenture is subject to the provisions of the Trust Indenture Act that are required to be part of this Indenture and shall, to the extent applicable, be governed by such provisions.

SECTION 112. Legal Holidays.

In any case where any Interest Payment Date, Redemption Date, sinking fund payment date or Stated Maturity or Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of any Security or coupon other than a provision in the Securities of any series which specifically states that such provision shall apply in lieu of this Section), payment of principal (or premium, if any) or interest, if any, need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date or sinking fund payment date, or at the Stated Maturity or Maturity; provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity, as the case may be.

SECTION 113. Agent for Service; Submission to Jurisdiction; Waiver of Immunities.

By the execution and delivery of this Indenture, the Company (i) acknowledges that it has irrevocably designated and appointed CT Corporation System, 111 8 th Avenue, 13 th

 

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Floor, New York, New York, 10011 (“ CT Corporation System ”) as its authorized agent upon which process may be served in any suit or proceeding arising out of or relating to the Securities or this Indenture that may be instituted in any federal or state court in the City of New York or brought under federal or state securities laws or brought by the Trustee (whether in its individual capacity or in its capacity as Trustee hereunder), (ii) submits to the non-exclusive jurisdiction of any such court in any such suit or proceeding, and (iii) agrees that service of process upon CT Corporation System and written notice of said service to the Company (mailed or delivered to the Company, attention: General Counsel, at its principal office specified in the first paragraph of this Indenture and in the manner specified in Section 105 hereof), shall be deemed in every respect effective service of process upon the Company in any such suit or proceeding. The Company further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of CT Corporation System in full force and effect so long as any of the Securities shall be outstanding.

To the extent that the Company has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, the Company hereby irrevocably waives such immunity in respect of its obligations under this Indenture and the Securities, to the extent permitted by law.

The Company hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Indenture or the Securities in any federal or state court in the State of New York, Borough of Manhattan. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

SECTION 114. Conversion of Currency.

The Company covenants and agrees that the following provisions shall apply to conversion of currency in the case of the Securities and this Indenture:

(i) If for the purposes of obtaining judgment in, or enforcing the judgment of, any court in any country, it becomes necessary to convert into any other currency (the “ Judgment Currency ”) an amount due or contingently due under the Securities of any series and this Indenture (the “ Required Currency ”), then the conversion shall be made at the rate of exchange prevailing on the Business Day before the day on which a final judgment which is not appealable or is not appealed is given or the order of enforcement is made, as the case may be (unless a court shall otherwise determine).

(ii) If there is a change in the rate of exchange prevailing between the Business Day before the day on which the judgment referred to in (i) above is given or an order of endorsement is made, as the case may be (or such other date as a court shall determine), and the date of receipt of the amount due, the Company shall pay such additional (or, as the case may be, such lesser) amount, if

 

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any, as may be necessary so that the amount paid in the judgment currency when converted at the rate of exchange prevailing on the date of receipt will produce the amount in the Required Currency originally due.

In the event of the winding-up of the Company at any time while any amount or damages owing under the Securities and this Indenture, or any judgment or order rendered in respect thereof, shall remain outstanding, the Company shall indemnify and hold the Holders of Securities and the Trustee harmless against any deficiency arising or resulting from any variation in rates of exchange between (1) the date as of which the equivalent of the amount in the Required Currency (other than under this Subsection (b)) is calculated for the purposes of such winding-up and (2) the final date for the filing of proofs of claim in such winding-up. For the purpose of this Subsection (b) the final date for the filing of proofs of claim in the winding-up of the Company shall be the date fixed by the liquidator or otherwise in accordance with the relevant provisions of applicable law as being the latest practicable date as at which liabilities of the Company may be ascertained for such winding-up prior to payment by the liquidator or otherwise in respect thereto.

The obligations contained in Subsections (a)(ii) and (b) of this Section shall constitute separate and independent obligations of the Company from its other obligations under the Securities and this Indenture, shall give rise to separate and independent causes of action against the Company shall apply irrespective of any waiver or extension granted by any Holder or Trustee from time to time and shall continue in full force and effect notwithstanding any judgment or order or the filing of any proof of claim in the winding-up of the Company for a liquidated sum in respect of amounts due hereunder (other than under Subsection (b) above) or under any such judgment or order. Any such deficiency as aforesaid shall be deemed to constitute a loss suffered by the Holders or the Trustee, as the case may be, and no proof or evidence of any actual loss shall be required by the Company or the applicable liquidator. In the case of Subsection (b) above, the amount of such deficiency shall not be deemed to be reduced by any variation in rates of exchange occurring between the said final date and the date of any liquidating distribution.

The term “ rate(s) of exchange ” shall mean the Bank of Canada noon rate for purchases on the relevant date of the Required Currency with the Judgment Currency, as reported by Telerate on screen 3194 (or such other means of reporting the Bank of Canada noon rate as may be agreed upon by each of the parties to this Indenture) and includes any premiums and costs of exchange payable.

SECTION 115. Currency Equivalent.

Except as otherwise provided in this Indenture, for purposes of the construction of the terms of this Indenture or of the Securities, in the event that any amount is stated herein in the Currency of one nation (the “ First Currency ”), as of any date such amount shall also be deemed to represent the amount in the Currency of any other relevant nation (the “ Other Currency ”) which is required to purchase such amount in the First Currency at the Bank of Canada noon rate as reported by Telerate on screen 3194 (or such other means of reporting the Bank of Canada noon rate as may be agreed upon by each of the parties to this Indenture) on the date of determination.

 

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If and to the extent that any provision hereof limits, qualifies or conflicts with the duties imposed by any of Sections 310 to 318, inclusive, of the Trust Indenture Act, through operation of Section 318(c) thereof, such imposed duties shall control.

ARTICLE TWO

SECURITIES FORMS

SECTION 201. Forms Generally.

The Registered Securities, if any, of each series and the Bearer Securities, if any, of each series and related coupons shall be in substantially the forms as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Securities or coupons, as evidenced by their execution of the Securities or coupons. If the forms of Securities or coupons of any series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Corporate Secretary or an Assistant Corporate Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Securities or coupons. Any portion of the text of any Security may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Security.

Unless otherwise specified as contemplated by Section 301, Securities in bearer form shall have interest coupons attached.

The Trustee’s certificate of authentication on all Securities shall be in substantially the form set forth in this Article.

The definitive Securities and coupons shall be printed, lithographed or engraved on steel-engraved borders or may be produced in any other manner, all as determined by the officers of the Company executing such Securities, as evidenced by their execution of such Securities or coupons.

SECTION 202. Form of Trustee’s Certificate of Authentication.

Subject to Section 611, the Trustee’s certificate of authentication shall be in substantially the following form:

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

Dated:                                       

This is one of the Securities of the series designated therein referred to in, and issued under, the within-mentioned Indenture.

 

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THE BANK OF NOVA SCOTIA TRUST

COMPANY OF NEW YORK,

   as Trustee
   By                                                                             
         Authorized Officer

SECTION 203. Securities Issuable in Global Form.

If Securities of or within a series are issuable in global form, as specified as contemplated by Section 301, then, notwithstanding clause (8) of Section 301, any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities of such series from time to time endorsed thereon and that the aggregate amount of Outstanding Securities of such series represented thereby may from time to time be increased or decreased to reflect exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon instructions given by such Person or Persons as shall be specified therein or in the Company Order to be delivered to the Trustee pursuant to Section 303 or Section 304. Subject to the provisions of Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Company Order. If a Company Order pursuant to Section 303 or Section 304 has been, or simultaneously is, delivered, any instructions by the Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 102 and need not be accompanied by an Opinion of Counsel.

The provisions of the last sentence of Section 303 shall apply to any Security represented by a Security in global form if such Security was never issued and sold by the Company and the Company delivers to the Trustee the Security in global form together with written instructions (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 303.

Notwithstanding the provisions of Section 307, unless otherwise specified as contemplated by Section 301, payment of principal of (and premium, if any) and interest, if any, on any Security in permanent global form shall be made to the Person or Persons specified therein.

Notwithstanding the provisions of Section 309 and except as provided in the preceding paragraph, the Company, the Trustee and any agent of the Company and the Trustee shall treat as the Holder of such principal amount of Outstanding Securities represented by a permanent global Security (i) in the case of a permanent global Security in registered form, the

 

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Holder of such permanent global Security in registered form, or (ii) in the case of a permanent global Security in bearer form, Euroclear or Clearstream.

ARTICLE THREE

THE SECURITIES

SECTION 301. Amount Unlimited; Issuable in Series.

The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.

The Securities may be issued in one or more series. There shall be established in one or more Board Resolutions or pursuant to authority granted by one or more Board Resolutions and, subject to Section 303, set forth in, or determined in the manner provided in, an Officer’s Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series, any or all of the following, as applicable (each of which (except for the matters set forth in clauses (1), (2) and (17) below), if so provided, may be determined from time to time by the Company with respect to unissued Securities of the series and set forth in such Securities of the series when issued from time to time):

(1) the title of the Securities of the series (which shall distinguish the Securities of the series from all other series of Securities);

(2) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or 1305);

(3) the date or dates, or the method by which such date or dates will be determined or extended, on which the principal of the Securities of the series is payable;

(4) the rate or rates (whether fixed or variable) at which the Securities of the series shall bear interest, if any, or the method by which such rate or rates shall be determined, the date or dates from which such interest shall accrue, or the method by which such date or dates shall be determined, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date, if any, for the interest payable on any Registered Security on any Interest Payment Date, or the method by which such date or dates shall be determined, whether and under what circumstances Additional Amounts on such Securities or any of them shall be payable, the notice, if any, to Holders regarding the determination of interest on a floating rate Security and the manner of giving such notice, and the basis upon which interest shall be calculated if other than on the basis of a 360-day year of twelve 30-day months;

(5) the place or places, if any, other than or in addition to the Borough of Manhattan, The City of New York, where the principal of (and premium, if any) and interest, if any, on Securities of the series shall be payable, where any Registered

 

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Securities of the series may be surrendered for registration of transfer, where Securities of the series may be surrendered for exchange, where Securities of the series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable and, if different than the location specified in Section 105, the place or places where notices or demands to or upon the Company in respect of the Securities of the series and this Indenture may be served, the extent to which, or the manners in which, any interest payment or Additional Amounts on a global Security on an Interest Payment Date, will be paid and the manner in which any principal of or premium, if any, on any global Security will be paid;

(6) the period or periods within which, the price or prices at which, the Currency in which, and other terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company, if the Company is to have that option;

(7) the obligation, if any, of the Company to redeem, repay or purchase Securities of the series pursuant to any sinking fund or analogous provision or at the option of a Holder thereof, and the period or periods within which, the price or prices at which, the Currency in which, and other terms and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;

(8) if other than denominations of $1,000 and any integral multiple thereof, the denomination or denominations in which any Registered Securities of the series shall be issuable and, if other than denominations of $5,000, the denomination or denominations in which any Bearer Securities of the series shall be issuable;

(9) if other than the Trustee, the identity of each Security Registrar and/or Paying Agent;

(10) if other than the principal amount thereof, the portion of the principal amount of Securities of the series that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502 or the method by which such portion shall be determined;

(11) if other than Dollars, the Currency in which payment of the principal of (or premium, if any) or interest, if any, on the Securities of the series shall be payable or in which the Securities of the series shall be denominated and the particular provisions applicable thereto in accordance with, in addition to or in lieu of any of the provisions of Section 312;

(12) whether the amount of payments of principal of (or premium, if any) or interest, if any, on the Securities of the series may be determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on one or more Currencies, commodities, equity indices or other indices), and the manner in which such amounts shall be determined;

(13) whether the principal of (or premium, if any) or interest, if any, on the Securities of the series are to be payable, at the election of the Company or a Holder

 

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thereof, in a Currency other than that in which such Securities are denominated or stated to be payable, the period or periods within which (including the Election Date), and the terms and conditions upon which, such election may be made, and the time and manner of determining the exchange rate between the Currency in which such Securities are denominated or stated to be payable and the Currency in which such Securities are to be so payable, in each case in accordance with, in addition to or in lieu of any of the provisions of Section 312;

(14) the designation of the initial Exchange Rate Agent, if any;

(15) the applicability, if any, of Sections 1402 and/or 1403 to the Securities of the series and any provisions in modification of, in addition to or in lieu of any of the provisions of Article Fourteen that shall be applicable to the Securities of the series;

(16) provisions, if any, granting special rights to the Holders of Securities of the series upon the occurrence of such events as may be specified;

(17) any deletions from, modifications of or additions to the Events of Default or covenants (including any deletions from, modifications of or additions to Section 1011) of the Company with respect to Securities of the series, whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein;

(18) whether Securities of the series are to be issuable as Registered Securities, Bearer Securities (with or without coupons) or both, any restrictions applicable to the offer, sale or delivery of Bearer Securities, whether any Securities of the series are to be issuable initially in temporary global form and whether any Securities of the series are to be issuable in permanent global form with or without coupons and, if so, whether beneficial owners of interests in any such permanent global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 305, whether Registered Securities of the series may be exchanged for Bearer Securities of the series (if permitted by applicable laws and regulations), whether Bearer Securities of the series may be exchanged for Registered Securities of such series, and the circumstances under which and the place or places where any such exchanges may be made and if Securities of the series are to be issuable in global form, the identity of any initial depository therefor;

(19) the date as of which any Bearer Securities of the series and any temporary global Security representing Outstanding Securities of the series shall be dated if other than the date of original issuance of the first Security of the series to be issued;

(20) the Person to whom any interest on any Registered Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, the manner in which, or the Person to whom, any interest on any Bearer Security of the series shall be payable, if otherwise than upon presentation and surrender of the coupons appertaining thereto as they severally mature, and the extent to which, or

 

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the manner in which, any interest payable on a temporary global Security on an Interest Payment Date will be paid if other than in the manner provided in Section 304;

(21) if Securities of the series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and/or terms of such certificates, documents or conditions;

(22) if the Securities of the series are to be issued upon the exercise of warrants, the time, manner and place for such Securities to be authenticated and delivered;

(23) whether, under what circumstances and the Currency in which the Company will pay Additional Amounts as contemplated by Section 1005 on the Securities of the series to any Holder who is not a United States person (including any modification to the definition of such term) in respect of any tax, assessment or governmental charge and, if so, whether the Company will have the option to redeem such Securities rather than pay such Additional Amounts (and the terms of any such option);

(24) whether Canadian and U.S. federal income tax consequences are applicable;

(25) whether and under what circumstances the Company will pay Additional Amounts on the Securities in respect of certain taxes (and the terms of any such payment) and, if so, whether the Company will have the option to redeem the Securities rather than pay the Additional Amounts (and the terms of any such option);

(26) if the Securities of the series are to be convertible into or exchangeable for any securities of any Person (including the Company), the terms and conditions upon which such Securities will be so convertible or exchangeable;

(27) the extent and manner, if any, to which payment on or in respect of the Securities of the series will be senior or will be subordinated to the prior payment of other liabilities and obligations of the Company;

(28) the percentage or percentages of principal amount at which the Securities of the series will be issued; and

(29) any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to the series (which terms shall not be inconsistent with the requirements of the Trust Indenture Act or the provisions of this Indenture).

All Securities of any one series and the coupons appertaining to any Bearer Securities of such series shall be substantially identical except, in the case of Registered Securities, as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution (subject to Section 303) and set forth in such Officer’s Certificate or in any such indenture supplemental hereto. Not all Securities of any one series need be issued at the

 

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same time, and, unless otherwise provided, a series may be reopened for issuances of additional Securities of such series.

If any of the terms of the series are established by action taken pursuant to one or more Board Resolutions, such Board Resolutions shall be delivered to the Trustee at or prior to the delivery of the Officer’s Certificate setting forth the terms of the series.

SECTION 302. Denominations.

The Securities of each series shall be issuable in such denominations as shall be specified as contemplated by Section 301. With respect to Securities of any series denominated in Dollars, in the absence of any such provisions, the Registered Securities of such series, other than Registered Securities issued in global form (which may be of any denomination), shall be issuable in denominations of $1,000 and any integral multiple thereof and the Bearer Securities of such series, other than the Bearer Securities issued in global form (which may be of any denomination), shall be issuable in a denomination of $5,000.

SECTION 303. Execution, Authentication, Delivery and Dating.

The Securities and any coupons appertaining thereto shall be executed on behalf of the Company by its Chairman, its President or a Vice President, together with any one of the Corporate Secretary, or Assistant Corporate Secretary, the Treasurer or an Assistant Treasurer, under its corporate seal reproduced thereon attested by its Secretary or an Assistant Secretary. The signature of any of these officers on the Securities or coupons may be the manual or facsimile signatures of the present or any future such authorized officer and may be imprinted or otherwise reproduced on the Securities.

Securities or coupons bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities or coupons.

At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series together with any coupon appertaining thereto, executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Company Order shall authenticate and deliver such Securities; provided , however , that, in connection with its original issuance, no Bearer Security shall be mailed or otherwise delivered to any location in the United States; and provided further that, unless otherwise specified with respect to any series of Securities pursuant to Section 301, a Bearer Security may be delivered in connection with its original issuance only if the Person entitled to receive such Bearer Security shall have furnished a certificate in the form set forth in Exhibit A-1 to this Indenture, dated no earlier than 15 days prior to the earlier of the date on which such Bearer Security is delivered and the date on which any temporary Security first becomes exchangeable for such Bearer Security in accordance with the terms of such temporary Security and this Indenture. If any Security shall be represented by a permanent global Bearer Security, then, for purposes of this Section and Section 304, the notation of a beneficial owner’s interest therein upon original issuance of such Security or upon exchange of a portion of a temporary

 

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global Security shall be deemed to be delivery in connection with its original issuance of such beneficial owner’s interest in such permanent global Security. Except as permitted by Section 306, the Trustee shall not authenticate and deliver any Bearer Security unless all appurtenant coupons for interest then matured have been detached and cancelled. If not all the Securities of any series are to be issued at one time and if the Board Resolution or supplemental indenture establishing such series shall so permit, such Company Order may set forth procedures acceptable to the Trustee for the issuance of such Securities and determining terms of particular Securities of such series such as interest rate, stated maturity, date of issuance and date from which interest shall accrue.

In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to TIA Sections 315(a) through 315(d)) shall be fully protected in relying upon, an Opinion of Counsel stating:

(a) that the form or forms of such Securities and any coupons have been established in conformity with the provisions of this Indenture;

(b) that the terms of such Securities and any coupons have been established in conformity with the provisions of this Indenture;

(c) that such Securities, together with any coupons appertaining thereto, when completed by appropriate insertions and executed and delivered by the Company to the Trustee for authentication in accordance with this Indenture, authenticated and delivered by the Trustee in accordance with this Indenture and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute the legal, valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting the enforcement of creditors’ rights, to general equitable principles and to such other qualifications as such counsel shall conclude do not materially affect the rights of Holders of such Securities and any coupons;

(d) that all laws and requirements in respect of the execution and delivery by the Company of such Securities, any coupons and of the supplemental indentures, if any, have been complied with and that authentication and delivery of such Securities and any coupons and the execution and delivery of the supplemental indenture, if any, by the Trustee will not violate the terms of the Indenture;

(e) that the Company has the corporate power to issue such Securities and any coupons, and has duly taken all necessary corporate action with respect to such issuance; and

(f) that the issuance of such Securities and any coupons will not contravene the articles of incorporation or by-laws of the Company or result in any violation of any of the terms or provisions of any law or regulation or of any indenture, mortgage or other agreement known to such Counsel by which the Company is bound.

 

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Notwithstanding the provisions of Section 301 and of the preceding two paragraphs, if not all the Securities of any series are to be issued at one time, it shall not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 301 or the Company Order and Opinion of Counsel otherwise required pursuant to the preceding two paragraphs prior to or at the time of issuance of each Security, but such documents shall be delivered prior to or at the time of issuance of the first Security of such series.

The Trustee shall not be required to authenticate and deliver any such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.

Each Registered Security shall be dated the date of its authentication and each Bearer Security shall be dated as of the date specified as contemplated by Section 301.

No Security or coupon shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein duly executed by the Trustee by manual signature of an authorized officer, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 310 together with a written statement (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.

SECTION 304. Temporary Securities.

Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form or, if authorized, in bearer form with one or more coupons or without coupons, and with such appropriate insertions, omissions, substitutions and other variations as conclusively the officers executing such Securities may determine, as conclusively evidenced by their execution of such Securities. Such temporary Securities may be in global form.

Except in the case of temporary Securities in global form (which shall be exchanged in accordance with the provisions of the following paragraphs), if temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series (accompanied

 

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by any unmatured coupons appertaining thereto), the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations; provided , however , that no definitive Bearer Security shall be delivered in exchange for a temporary Registered Security; and provided further that a definitive Bearer Security shall be delivered in exchange for a temporary Bearer Security only in compliance with the conditions set forth in Section 303. Until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.

If temporary Securities of any series are issued in global form, any such temporary global Security shall, unless otherwise provided therein, be delivered to the London, England office of a depositary or common depositary (the “Common Depositary”), for the benefit of Euroclear and Clearstream, for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they may direct).

Without unnecessary delay but in any event not later than the date specified in, or determined pursuant to the terms of, any such temporary global Security (the “ Exchange Date ”), the Company shall deliver to the Trustee definitive Securities, in aggregate principal amount equal to the principal amount of such temporary global Security, executed by the Company. On or after the Exchange Date such temporary global Security shall be surrendered by the Common Depositary to the Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities without charge and the Trustee shall authenticate and deliver, in exchange for each portion of such temporary global Security, an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such temporary global Security to be exchanged. The definitive Securities to be delivered in exchange for any such temporary global Security shall be in bearer form, registered form, permanent global bearer form or permanent global registered form, or any combination thereof, as specified as contemplated by Section 301, and, if any combination thereof is so specified, as requested by the beneficial owner thereof; provided , however, that, unless otherwise specified in such temporary global Security, upon such presentation by the Common Depositary, such temporary global Security is accompanied by a certificate dated the Exchange Date or a subsequent date and signed by Euroclear as to the portion of such temporary global Security held for its account then to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by Clearstream as to the portion of such temporary global Security held for its account then to be exchanged, each in the form set forth in Exhibit A-2 to this Indenture (or in such other form as may be established pursuant to Section 301); and provided further that definitive Bearer Securities shall be delivered in exchange for a portion of a temporary global Security only in compliance with the requirements of Section 303.

Unless otherwise specified in such temporary global Security, the interest of a beneficial owner of Securities of a series in a temporary global Security shall be exchanged for definitive Securities of the same series and of like tenor following the Exchange Date when the account holder instructs Euroclear or Clearstream, as the case may be, to request such exchange on his behalf and delivers to Euroclear or Clearstream, as the case may be, a certificate in the form set forth in Exhibit A-1 to this Indenture (or in such other form as may be established pursuant to Section 301), dated no earlier than 15 days prior to the Exchange Date, copies of which certificate shall be available from the offices of Euroclear and Clearstream, the Trustee,

 

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any Authenticating Agent appointed for such series of Securities and each Paying Agent. Unless otherwise specified in such temporary global Security, any such exchange shall be made free of charge to the beneficial owners of such temporary global Security, except that a Person receiving definitive Securities must bear the cost of insurance, postage, transportation and the like in the event that such Person does not take delivery of such definitive Securities in person at the offices of Euroclear or Clearstream. Definitive Securities in bearer form to be delivered in exchange for any portion of a temporary global Security shall be delivered only outside the United States.

Until exchanged in full as hereinabove provided, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder, except that, unless otherwise specified as contemplated by Section 301, interest payable on a temporary global Security on an Interest Payment Date for Securities of such series occurring prior to the applicable Exchange Date shall be payable to Euroclear and Clearstream on such Interest Payment Date upon delivery by Euroclear and Clearstream to the Trustee of a certificate or certificates in the form set forth in Exhibit A-2 to this Indenture (or in such other form as may be established pursuant to Section 301), for credit without further interest thereon on or after such Interest Payment Date to the respective accounts of the Persons who are the beneficial owners of such temporary global Security on such Interest Payment Date and who have each delivered to Euroclear or Clearstream, as the case may be, a certificate dated no earlier than 15 days prior to the Interest Payment Date occurring prior to such Exchange Date in the form set forth in Exhibit A-1 to this Indenture (or in such other form as may be established pursuant to Section 301). Notwithstanding anything to the contrary herein contained, the certifications made pursuant to this paragraph shall satisfy the certification requirements of the preceding two paragraphs of this Section and of the third paragraph of Section 303 of this Indenture and the interests of the Persons who are the beneficial owners of the temporary global Security with respect to which such certification was made will be exchanged for definitive Securities of the same series and of like tenor on the Exchange Date or the date of certification if such date occurs after the Exchange Date, without further act or deed by such beneficial owners. Except as otherwise provided in this paragraph, no payments of principal (or premium, if any) or interest, if any, owing with respect to a beneficial interest in a temporary global Security will be made unless and until such interest in such temporary global Security shall have been exchanged for an interest in a definitive Security. Any interest so received by Euroclear and Clearstream and not paid as herein provided shall be returned to the Trustee immediately prior to the expiration of two years after such Interest Payment Date in order to be repaid to the Company in accordance with Section 1003.

SECTION 305. Registration, Registration of Transfer and Exchange.

The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register for each series of Securities (the registers maintained in the Corporate Trust Office of the Trustee and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “ Security Register ”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and of transfers of Registered Securities. The Security Register shall be in written form or any other form capable of being converted into written form within a reasonable time. At all reasonable times, the Security Register shall be open to inspection by the Trustee. The Trustee is hereby initially appointed as security registrar (the “ Security Registrar ”) for the

 

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purpose of registering Registered Securities and transfers of Registered Securities as herein provided. The Company shall have the right to remove and replace from time to time the Security Registrar for any series of Securities; provided , that , no such removal or replacement shall be effective until a successor Security Registrar with respect to such series of Registered Securities shall have been appointed by the Company and shall have accepted such appointment by the Company. In the event that the Trustee shall not be or shall cease to be the Security registrar with respect to a series of Securities, it shall have the right to examine the Security Register for such series at all reasonable times. There shall be only one Security Register for such series of Securities.

Upon surrender for registration of transfer of any Registered Security of any series at the office or agency in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee, one or more new Registered Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor.

At the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series, of any authorized denomination and of a like aggregate principal amount and tenor, upon surrender of the Registered Securities to be exchanged at such office or agency. Whenever any Registered Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Registered Securities which the Holder making the exchange is entitled to receive. Unless otherwise specified with respect to any series of Securities as contemplated by Section 301, Bearer Securities may not be issued in exchange for Registered Securities.

If (but only if) expressly permitted in or pursuant to the applicable Board Resolution and (subject to Section 303) set forth in the applicable Officer’s Certificate, or in any indenture supplemental hereto, delivered as contemplated by Section 301, at the option of the Holder, Bearer Securities of any series may be exchanged for Registered Securities of the same series of any authorized denomination and of a like aggregate principal amount and tenor, upon surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons and all matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon or coupons or matured coupon or coupons in default, any such permitted exchange may be effected if the Bearer Securities are accompanied by payment in funds acceptable to the Company in an amount equal to the face amount of such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there is furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to any Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided , however , that, except as otherwise provided in Section 1002, interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or agency in a permitted exchange for a Registered Security of the same series and like tenor after the close of business at such office or agency on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the

 

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related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed date for payment, as the case may be, and interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture.

Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.

Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 301, any permanent global Security shall be exchangeable only as provided in this paragraph. If any beneficial owner of an interest in a permanent global Security is entitled to exchange such interest for Securities of such series and of like tenor and principal amount of another authorized form and denomination, as specified as contemplated by Section 301 and provided that any applicable notice provided in the permanent global Security shall have been given, then without unnecessary delay but in any event not later than the earliest date on which such interest may be so exchanged, the Company shall deliver to the Trustee definitive Securities in aggregate principal amount equal to the principal amount of such beneficial owner’s interest in such permanent global Security, executed by the Company. On or after the earliest date on which such interests may be so exchanged, such permanent global Security shall be surrendered by the Common Depositary or such other depositary as shall be specified in the Company Order with respect thereto to the Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities without charge, and the Trustee shall authenticate and deliver, in exchange for each portion of such permanent global Security, an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such permanent global Security to be exchanged which, unless the Securities of the series are not issuable both as Bearer Securities and as Registered Securities, as specified as contemplated by Section 301, shall be in the form of Bearer Securities or Registered Securities, or any combination thereof, as shall be specified by the beneficial owner thereof; provided , however , that no such exchanges may occur during a period beginning at the opening of business 15 days before any selection of Securities to be redeemed and ending on the relevant Redemption Date if the Security for which exchange is requested may be among those selected for redemption; and provided , further , that no Bearer Security delivered in exchange for a portion of a permanent global Security shall be mailed or otherwise delivered to any location in the United States. If a Registered Security is issued in exchange for any portion of a permanent global Security after the close of business at the office or agency where such exchange occurs on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but will be payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the Person to whom interest in respect of such portion of such permanent global Security is payable in accordance with the provisions of this Indenture.

 

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If at any time the Depositary for Securities of a series notifies the Company that it is unwilling, unable or no longer qualifies to continue as Depositary for Securities of such series or if at any time the Depositary for Securities for such series shall no longer be registered or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, the Company shall appoint a successor depositary with respect to the Securities for such series. If a successor to the Depositary for Securities is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, the Company’s election pursuant to Section 301 shall no longer be effective with respect to the Securities for such series and the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver Securities of such series in definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the global Security or Securities representing such series in exchange for such global Security or Securities.

The Company may at any time and in its sole discretion determine that the Securities of any series issued in the form of one or more global Securities shall no longer be represented by such global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver Securities of such series in definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the global Security or Securities representing such series in exchange for such global Security or Securities.

Upon the exchange of a global Security for Securities in definitive registered form, such global Security shall be cancelled by the Trustee. Securities issued in exchange for a global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the depositary for such global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee in writing. The Trustee shall deliver such Securities to the persons in whose names such Securities are so registered.

All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.

Every Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Security Registrar) be duly endorsed, or be accompanied by a written instrument of transfer, in form satisfactory to the Company and the Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.

No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.

 

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The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the selection for redemption of Securities of that series under Section 1103 or 1203 and ending at the close of business on (A) if Securities of the series are issuable only as Registered Securities, the day of the mailing of the relevant notice of redemption and (B) if Securities of the series are issuable as Bearer Securities, the day of the first publication of the relevant notice of redemption or, if Securities of the series are also issuable as Registered Securities and there is no publication, the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Registered Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part, or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of that series and like tenor; provided that such Registered Security shall be immediately surrendered for redemption, or (iv) to issue, register the transfer of or exchange any Security which has been surrendered for repayment at the option of the Holder, except the portion, if any, of such Security not to be so repaid.

SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.

If any mutilated Security or a Security with a mutilated coupon appertaining to it is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to the surrendered Security, or, in case any such mutilated Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, with coupons corresponding to the coupons, if any, appertaining to the surrendered Security, pay such Security or coupon.

If there shall be delivered to the Company and to the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security or coupon and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security or coupon has been acquired by a bona fide purchaser, the Company shall execute and upon Company Order the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security or in exchange for the Security for which a destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed, lost or stolen), a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon appertains.

Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, with coupons corresponding to the coupons, if any, appertaining to such mutilated, destroyed, lost or stolen Security or to the Security to which such mutilated, destroyed, lost or stolen coupon appertains, pay such Security or coupon; provided , however , that payment of principal of (and premium, if any) and interest, if any, on Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at an office or agency located outside the United States and,

 

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unless otherwise specified as contemplated by Section 301, any interest on Bearer Securities shall be payable only upon presentation and surrender of the coupons appertaining thereto.

Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

Every new Security of any series with its coupons, if any, issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Security or in exchange for a Security to which a mutilated, destroyed, lost or stolen coupon appertains, shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security and its coupons, if any, or the mutilated, destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series and their coupons, if any, duly issued hereunder.

The provisions of this Section, as amended or supplemented pursuant to this Indenture with respect to particular Securities or generally, are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons.

SECTION 307. Payment of Principal and Interest; Interest Rights Preserved; Optional Interest Reset.

(a) Unless otherwise provided as contemplated by Section 301 with respect to any series of Securities, interest, if any, on any Registered Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest at the office or agency of the Company maintained for such purpose pursuant to Section 1002; provided , however , that each installment of the principal of (and premium, if any, on) and interest, if any, on any Registered Security may at the Company’s option be paid by (i) mailing a check for such interest, payable to or upon the written order of the Person entitled thereto pursuant to Section 309, to the address of such Person as it appears on the Security Register or (ii) wire transfer to an account of the person entitled to receive such payment (with wire transfer instructions provided to the Trustee not less than 15 days prior to payment of interest by wire transfer); provided further, that principal paid in relation to any Security redeemed at the option of the Company pursuant to Article Eleven, or paid at Maturity, shall be paid to the holder of such Security only upon presentation and surrender of such Security to such office or agency referred to in this Section 307(a).

Unless otherwise provided as contemplated by Section 301 with respect to the Securities of any series, payment of interest, if any, may be made, in the case of a Bearer Security, by transfer to an account located outside the United States maintained by the payee.

Unless otherwise provided as contemplated by Section 301, every permanent global Security will provide that interest, if any, payable on any Interest Payment Date will be paid to each of Euroclear and Clearstream with respect to that portion of such permanent global Security held for its account by the Common Depositary, for the purpose of permitting each of

 

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Euroclear and Clearstream to credit the interest, if any, received by it in respect of such permanent global Security to the accounts of the beneficial owners thereof.

Any interest on any Registered Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such defaulted interest and, if applicable, interest on such defaulted interest (to the extent lawful) at the rate specified in the Securities of such series (such defaulted interest and, if applicable, interest thereon herein collectively called “ Defaulted Interest ”) may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:

(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Registered Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given in the manner provided in Section 106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so given, such Defaulted Interest shall be paid to the Persons in whose name the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2).

(2) The Company may make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.

(b) The provisions of this Section 307(b) may be made applicable to any series of Securities pursuant to Section 301 (with such modifications, additions or substitutions as may be specified pursuant to such Section 301). The interest rate (or the spread or spread

 

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multiplier used to calculate such interest rate, if applicable) on any Security of such series may be reset by the Company on the date or dates specified on the face of such Security (each an “ Optional Reset Date ”). The Company may exercise such option with respect to such Security by notifying the Trustee of such exercise at least 50 but not more than 60 days prior to an Optional Reset Date for such Note. Not later than 40 days prior to each Optional Reset Date, the Trustee shall transmit, in the manner provided for in Section 106, to the Holder of any such Security a notice (the “ Reset Notice ”) indicating whether the Company has elected to reset the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable), and if so (i) such new interest rate (or such new spread or spread multiplier, if applicable) and (ii) the provisions, if any, for redemption during the period from such Optional Reset Date to the next Optional Reset Date or if there is no such next Optional Reset Date, to the Stated Maturity Date of such Security (each such period a “ Subsequent Interest Period ”), including the date or dates on which or the period or periods during which and the price or prices at which such redemption may occur during the Subsequent Interest Period.

Notwithstanding the foregoing, not later than 20 days prior to the Optional Reset Date, the Company may, at its option, revoke the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) provided for in the Reset Notice and establish an interest rate (or a spread or spread multiplier used to calculate such interest rate, if applicable) that is higher than the interest rate (or the spread or spread multiplier, if applicable) provided for in the Reset Notice, for the Subsequent Interest Period by causing the Trustee to transmit, in the manner provided for in Section 106, notice of such higher interest rate (or such higher spread or spread multiplier, if applicable) to the Holder of such Security. Such notice shall be irrevocable. All Securities with respect to which the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) is reset on an Optional Reset Date, and with respect to which the Holders of such Securities have not tendered such Securities for repayment (or have validly revoked any such tender) pursuant to the next succeeding paragraph, will bear such higher interest rate (or such higher spread or spread multiplier, if applicable).

The Holder of any such Security will have the option to elect repayment by the Company of the principal of such Security on each Optional Reset Date at a price equal to the principal amount thereof plus interest accrued to such Optional Reset Date. In order to obtain repayment on an Optional Reset Date, the Holder must follow the procedures set forth in Article Thirteen for repayment at the option of Holders except that the period for delivery or notification to the Trustee shall be at least 25 but not more than 35 days prior to such Optional Reset Date and except that, if the Holder has tendered any Security for repayment pursuant to the Reset Notice, the Holder may, by written notice to the Trustee, revoke such tender or repayment until the close of business on the tenth day before such Optional Reset Date.

Subject to the foregoing provisions of this Section and Section 305, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

SECTION 308. Optional Extension of Stated Maturity.

The provisions of this Section 308 may be made applicable to any series of Securities pursuant to Section 301 (with such modifications, additions or substitutions as may be

 

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specified pursuant to such Section 301). The Stated Maturity of any Security of such series may be extended at the option of the Company for the period or periods specified on the face of such Security (each an “ Extension Period ”) up to but not beyond the date (the “ Final Maturity ”) set forth on the face of such Security. The Company may exercise such option with respect to any Security by notifying the Trustee of such exercise at least 50 but not more than 60 days prior to the Stated Maturity of such Security in effect prior to the exercise of such option (the “ Original Stated Maturity ”). If the Company exercises such option, the Trustee shall transmit, in the manner provided for in Section 106, to the Holder of such Security not later than 40 days prior to the Original Stated Maturity a notice (the “ Extension Notice ”) indicating (i) the election of the Company to extend the Stated Maturity, (ii) the new Stated Maturity, (iii) the interest rate, if any, applicable to the Extension Period and (iv) the provisions, if any, for redemption during such Extension Period. Upon the Trustee’s transmittal of the Extension Notice, the Stated Maturity of such Security shall be extended automatically and, except as modified by the Extension Notice and as described in the next paragraph, such Security will have the same terms as prior to the transmittal of such Extension Notice.

Notwithstanding the foregoing, not later than 20 days before the Original Stated Maturity of such Security, the Company may, at its option, revoke the interest rate provided for in the Extension Notice and establish a higher interest rate for the Extension Period by causing the Trustee to transmit, in the manner provided for in Section 106, notice of such higher interest rate to the Holder of such Security. Such notice shall be irrevocable. All Securities with respect to which the Stated Maturity is extended will bear such higher interest rate.

If the Company extends the Maturity of any Security, the Holder will have the option to elect repayment of such Security by the Company on the Original Stated Maturity at a price equal to the principal amount thereof, plus interest accrued to such date. In order to obtain repayment on the Original Stated Maturity once the Company has extended the Maturity thereof, the Holder must follow the procedures set forth in Article Thirteen for repayment at the option of Holders, except that the period for delivery or notification to the Trustee shall be at least 25 but not more than 35 days prior to the Original Stated Maturity and except that, if the Holder has tendered any Security for repayment pursuant to an Extension Notice, the Holder may by written notice to the Trustee revoke such tender for repayment until the close of business on the tenth day before the Original Stated Maturity.

SECTION 309. Persons Deemed Owners.

Prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Sections 305 and 307) interest, if any, on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and none of the Company, the Trustee or any agent of the Company or the Trustee shall be affected by notice to the contrary.

Title to any Bearer Security and any coupons appertaining thereto shall pass by delivery. The Company, the Trustee and any agent of the Company or the Trustee may treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner of such Security or coupon for the purpose of receiving payment thereof or on account thereof and for all

 

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other purposes whatsoever, whether or not such Security or coupons be overdue, and none of the Company, the Trustee or any agent of the Company or the Trustee shall be affected by notice to the contrary.

The Depositary for Securities may be treated by the Company, the Trustee, and any agent of the Company or the Trustee as the owner of such global Security for all purposes whatsoever. None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Security in global form or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

Notwithstanding the foregoing, with respect to any global Security, nothing herein shall prevent the Company, the Trustee, or any agent of the Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by any depositary, as a Holder, with respect to such global Security or impair, as between such depositary and owners of beneficial interests in such global Security, the operation of customary practices governing the exercise of the rights of such depositary (or its nominee) as Holder of such global Security.

SECTION 310. Cancellation.

All Securities and coupons surrendered for payment, redemption, repayment at the option of the Holder, registration of transfer or exchange or for credit against any current or future sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All Securities and coupons so delivered to the Trustee shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. If the Company shall so acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are surrendered to the Trustee for cancellation. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures and certification of their disposal delivered to the Company unless by Company Order the Company shall direct that cancelled Securities be returned to it.

 

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SECTION 311. Computation of Interest.

Except as otherwise specified as contemplated by Section 301 with respect to any Securities, interest, if any, on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months. For the purposes of disclosure under the Interest Act (Canada), the yearly rate of interest to which interest calculated under a Security for any period in any calendar year (the “ calculation period ”) is equivalent, is the rate payable under a Security in respect of the calculation period multiplied by a fraction the numerator of which is the actual number of days in such calendar year and the denominator of which is the actual number of days in the calculation period.

SECTION 312. Currency and Manner of Payments in Respect of Securities.

(a) With respect to Registered Securities of any series not permitting the election provided for in paragraph (b) below or the Holders of which have not made the election provided for in paragraph (b) below, and with respect to Bearer Securities of any series, except as provided in paragraph (d) below, payment of the principal of (and premium, if any) and interest, if any, on any Registered or Bearer Security of such series will be made in the Currency in which such Registered Security or Bearer Security, as the case may be, is payable. The provisions of this Section 312 may be modified or superseded with respect to any Securities pursuant to Section 301.

(b) It may be provided pursuant to Section 301 with respect to Registered Securities of any series that Holders shall have the option, subject to paragraphs (d) and (e) below, to receive payments of principal of (or premium, if any) or interest, if any, on such Registered Securities in any of the Currencies which may be designated for such election by delivering to the Trustee a written election with signature guarantees and in the applicable form established pursuant to Section 301, not later than the close of business on the Election Date immediately preceding the applicable payment date. If a Holder so elects to receive such payments in any such Currency, such election will remain in effect for such Holder or any transferee of such Holder until changed by such Holder or such transferee by written notice to the Trustee (but any such change must be made not later than the close of business on the Election Date immediately preceding the next payment date to be effective for the payment to be made on such payment date and no such change of election may be made with respect to payments to be made on any Registered Security of such series with respect to which an Event of Default has occurred or with respect to which the Company has deposited funds pursuant to Article Four or Fourteen or with respect to which a notice of redemption has been given by the Company or a notice of option to elect repayment has been sent by such Holder or such transferee). Any Holder of any such Registered Security who shall not have delivered any such election to the Trustee not later than the close of business on the applicable Election Date will be paid the amount due on the applicable payment date in the relevant Currency as provided in Section 312(a). The Trustee shall notify the Exchange Rate Agent as soon as practicable after the Election Date of the aggregate principal amount of Registered Securities for which Holders have made such written election.

(c) Unless otherwise specified pursuant to Section 301, if the election referred to in paragraph (b) above has been provided for pursuant to Section 301, then, unless otherwise

 

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specified pursuant to Section 301, not later than the fourth Business Day after the Election Date for each payment date for Registered Securities of any series, the Exchange Rate Agent will deliver to the Company a written notice specifying, in the Currency in which Registered Securities of such series are payable, the respective aggregate amounts of principal of (and premium, if any) and interest, if any, on the Registered Securities to be paid on such payment date, specifying the amounts in such Currency so payable in respect of the Registered Securities as to which the Holders of Registered Securities of such series shall have elected to be paid in another Currency as provided in paragraph (b) above. If the election referred to in paragraph (b) above has been provided for pursuant to Section 301 and if at least one Holder has made such election, then, unless otherwise specified pursuant to Section 301, on the second Business Day preceding such payment date the Company will deliver to the Trustee for such series of Registered Securities an Exchange Rate Officer’s Certificate in respect of the Dollar or Foreign Currency payments to be made on such payment date. Unless otherwise specified pursuant to Section 301, the Dollar or Foreign Currency amount receivable by Holders of Registered Securities who have elected payment in a Currency as provided in paragraph (b) above shall be determined by the Company on the basis of the applicable Market Exchange Rate in effect on the third Business Day (the “ Valuation Date ”) immediately preceding each payment date, and such determination shall be conclusive and binding for all purposes, absent manifest error.

(d) If a Conversion Event occurs with respect to a Foreign Currency in which any of the Securities are denominated or payable other than pursuant to an election provided for pursuant to paragraph (b) above, then with respect to each date for the payment of principal of (and premium, if any) and interest, if any, on the applicable Securities denominated or payable in such Foreign Currency occurring after the last date on which such Foreign Currency was used (the “ Conversion Date ”), the Dollar shall be the Currency of payment for use on each such payment date. Unless otherwise specified pursuant to Section 301, the Dollar amount to be paid by the Company to the Trustee and by the Trustee or any Paying Agent to the Holders of such Securities with respect to such payment date shall be, in the case of a Foreign Currency other than a currency unit, the Dollar Equivalent of the Foreign Currency or, in the case of a currency unit, the Dollar Equivalent of the Currency Unit, in each case as determined by the Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.

(e) Unless otherwise specified pursuant to Section 301, if the Holder of a Registered Security denominated in any Currency shall have elected to be paid in another Currency as provided in paragraph (b) above, and a Conversion Event occurs with respect to such elected Currency, such Holder shall receive payment in the Currency in which payment would have been made in the absence of such election; and if a Conversion Event occurs with respect to the Currency in which payment would have been made in the absence of such election, such Holder shall receive payment in Dollars as provided in paragraph (d) above.

(f) The “ Dollar Equivalent of the Foreign Currency ” shall be determined by the Exchange Rate Agent and shall be obtained for each subsequent payment date by converting the specified Foreign Currency into Dollars at the Market Exchange Rate on the Conversion Date.

(g) The “ Dollar Equivalent of the Currency Unit ” shall be determined by the Exchange Rate Agent and subject to the provisions of paragraph (h) below shall be the sum of each amount obtained by converting the Specified Amount of each Component Currency into

 

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Dollars at the Market Exchange Rate for such Component Currency on the Valuation Date with respect to each payment.

(h) For purposes of this Section 312 the following terms shall have the following meanings:

A “ Component Currency ” shall mean any Currency which, on the Conversion Date, was a component currency of the relevant currency unit, including, but not limited to, the Euro.

A “ Specified Amount ” of a Component Currency shall mean the number of units of such Component Currency or fractions thereof which were represented in the relevant currency unit, including, but not limited to, the Euro, on the Conversion Date. If after the Conversion Date the official unit of any Component Currency is altered by way of combination or subdivision, the Specified Amount of such Component Currency shall be divided or multiplied in the same proportion. If after the Conversion Date two or more Component Currencies are consolidated into a single currency, the respective Specified Amounts of such Component Currencies shall be replaced by an amount in such single Currency equal to the sum of the respective Specified Amounts of such consolidated Component Currencies expressed in such single Currency, and such amount shall thereafter be a Specified Amount and such single Currency shall thereafter be a Component Currency. If after the Conversion Date any Component Currency shall be divided into two or more currencies, the Specified Amount of such Component Currency shall be replaced by amounts of such two or more currencies, having an aggregate Dollar Equivalent value at the Market Exchange Rate on the date of such replacement equal to the Dollar Equivalent value of the Specified Amount of such former Component Currency at the Market Exchange Rate immediately before such division and such amounts shall thereafter be Specified Amounts and such currencies shall thereafter be Component Currencies. If, after the Conversion Date of the relevant currency unit, including, but not limited to, the Euro, a Conversion Event (other than any event referred to above in this definition of “Specified Amount”) occurs with respect to any Component Currency of such currency unit and is continuing on the applicable Valuation Date, the Specified Amount of such Component Currency shall, for purposes of calculating the Dollar Equivalent of the Currency Unit, be converted into Dollars at the Market Exchange Rate in effect on the Conversion Date of such Component Currency.

Election Date ” shall mean the date for any series of Registered Securities as specified pursuant to clause (13) of Section 301 by which the written election referred to in paragraph (b) above may be made.

All decisions and determinations of the Exchange Rate Agent regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as specified above shall be in its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Company, the Trustee and all Holders of such Securities denominated or payable in the relevant Currency. The Exchange Rate Agent shall promptly give written notice to the Company and the Trustee of any such decision or determination.

 

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In the event that the Company determines in good faith that a Conversion Event has occurred with respect to a Foreign Currency, the Company will immediately give written notice thereof to the Trustee and to the Exchange Rate Agent (and the Trustee will promptly thereafter give notice in the manner provided for in Section 106 to the affected Holders) specifying the Conversion Date. In the event the Company so determines that a Conversion Event has occurred with respect to the Euro or any other currency unit in which Securities are denominated or payable, the Company will immediately give written notice thereof to the Trustee and to the Exchange Rate Agent (and the Trustee will promptly thereafter give notice in the manner provided for in Section 106 to the affected Holders) specifying the Conversion Date and the Specified Amount of each Component Currency on the Conversion Date. In the event the Company determines in good faith that any subsequent change in any Component Currency as set forth in the definition of Specified Amount above has occurred, the Company will similarly give written notice to the Trustee and the Exchange Rate Agent.

The Trustee shall be fully justified and protected in relying and acting upon information received by it from the Company and the Exchange Rate Agent and shall not otherwise have any duty or obligation to determine the accuracy or validity of such information independent of the Company or the Exchange Rate Agent.

SECTION 313. Appointment and Resignation of Successor Exchange Rate Agent.

(a) Unless otherwise specified pursuant to Section 301, if and so long as the Securities of any series (i) are denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long as it is required under any other provision of this Indenture, then the Company will maintain with respect to each such series of Securities, or as so required, at least one Exchange Rate Agent. The Company will cause the Exchange Rate Agent to make the necessary foreign exchange determinations at the time and in the manner specified pursuant to Section 301 for the purpose of determining the applicable rate of exchange and, if applicable, for the purpose of converting the issued Currency into the applicable payment Currency for the payment of principal (and premium, if any) and interest, if any, pursuant to Section 312.

(b) The Company shall have the right to remove and replace from time to time the Exchange Rate Agent for any series of Securities. No resignation of the Exchange Rate Agent and no appointment of a successor Exchange Rate Agent pursuant to this Section shall become effective until the acceptance of appointment by the successor Exchange Rate Agent as evidenced by a written instrument delivered to the Company and the Trustee.

(c) If the Exchange Rate Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Exchange Rate Agent for any cause with respect to the Securities of one or more series, the Company, by or pursuant to a Board Resolution, shall promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to the Securities of that or those series (it being understood that any such successor Exchange Rate Agent may be appointed with respect to the Securities of one or more or all of such series and that, unless otherwise specified pursuant to Section 301, at any time there shall only be one Exchange Rate Agent with respect to the Securities of any particular series that are originally issued by the Company on the same date and that are initially denominated and/or payable in the same Currency).

 

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ARTICLE FOUR

SATISFACTION AND DISCHARGE

SECTION 401. Satisfaction and Discharge of Indenture.

This Indenture shall upon Company Request cease to be of further effect with respect to any series of Securities specified in such Company Request (except as to any surviving rights of registration of transfer or exchange of Securities of such series expressly provided for herein or pursuant hereto and any right to receive Additional Amounts as contemplated by Section 1005) and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series when

(1) either

(A) all Securities of such series theretofore authenticated and delivered and all coupons, if any, appertaining thereto (other than (i) coupons appertaining to Bearer Securities surrendered for exchange for Registered Securities and maturing after such exchange, whose surrender is not required or has been waived as provided in Section 305, (ii) Securities and coupons of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306, (iii) coupons appertaining to Securities called for redemption and maturing after the relevant Redemption Date, whose surrender has been waived as provided in Section 1106, and (iv) Securities and coupons of such series for whose payment money has theretofore been deposited in trust with the Trustee or any Paying Agent or segregated and held in trust by the Company and thereafter repaid to the Company, as provided in Section 1003) have been delivered to the Trustee for cancellation; or

(B) all Securities of such series and, in the case of (i) or (ii) below, any coupons appertaining thereto not theretofore delivered to the Trustee for cancellation

(i) have become due and payable, or

(ii) will become due and payable at their Stated Maturity within one year, or

(iii) if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,

and the Company, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose an amount in the Currency in which the Securities of such series are payable, sufficient to pay and discharge the entire indebtedness on such Securities not

 

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theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest, if any, to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;

(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and

(3) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with.

Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 606 and to any Authenticating Agent under Section 611 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003 shall survive.

SECTION 402. Application of Trust Money.

Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Securities, the coupons and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest, if any, for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.

ARTICLE FIVE

REMEDIES

SECTION 501. Events of Default.

Event of Default ”, wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), unless such event is specifically deleted or modified in or pursuant to a supplemental indenture, Board Resolution or Officer’s Certificate establishing the terms of such series pursuant to this Indenture:

(1) default in the payment of any interest on any Security of that series, or any related coupon, when such interest or coupon becomes due and payable, and continuance of such default for a period of 30 days; or

 

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(2) default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity; or

(3) default in the deposit of any sinking fund payment, when and as due by the terms of the Securities of that series and Article Twelve; or

(4) default in the performance, or breach, of any covenant or warranty of the Company in this Indenture in respect of the Securities of that series (other than a covenant or warranty a default in the performance of which, or the breach of which, is specifically dealt with elsewhere in this Indenture), and continuance of such default or breach for a period of 60 days after there has been given to the Company by the Trustee to the attention of the General Counsel to the Company via facsimile, with a hard copy then sent, by registered or certified mail, or to the Company (in the same manner) and the Trustee by the Holders of at least 25% in principal amount of all Outstanding Securities of any series affected thereby, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or

(5) if an event of default (as defined in any indenture or instrument under which the Company or any of its Restricted Subsidiaries has at the time of this Indenture or shall thereafter have outstanding any Indebtedness for borrowed money) shall happen and be continuing, or the Company or any of its Restricted Subsidiaries shall have failed to pay principal amounts with respect to such Indebtedness at maturity (whether or not constituting an event of default) and such event of default or failure to pay shall result in Indebtedness being declared due and payable or otherwise being accelerated, in either event so that an amount in excess of the greater of US$75,000,000 and 2% of the Equity of the Company shall be or become due and payable upon such declaration or prior to the date on which the same would otherwise have become due and payable (the “Accelerated Indebtedness”), and such acceleration shall not be rescinded or annulled, or such event of default or failure to pay under such-indenture or instrument shall not be remedied or cured, whether by payment or otherwise, or waived by the holders of such Accelerated Indebtedness, then (a) if the Accelerated Indebtedness shall be as a result of an event of default which is not related to the failure to pay principal or interest on the terms, at the times, and on the conditions set out in any such indenture or instrument, it shall not be considered an Event of Default for purposes of this Indenture until 30 days after such acceleration, or (b) if the Accelerated Indebtedness shall occur as a result of such failure to pay or an event of default which is related to the failure to pay principal or interest on the terms, at the times, and on the conditions set out in any such indenture or instrument, then (i) if such Accelerated Indebtedness is, by its terms, non-recourse to the borrower, it shall not be considered an Event of Default for purposes of this Indenture; or (ii) if such Accelerated Indebtedness is recourse to the borrower, any requirement in connection with such failure to pay or event of default for the giving of notice or the lapse of time or the happening of any further condition, event or act under such other indenture or instrument shall be applicable together with an additional seven days before being considered an Event of Default for purposes of this Indenture; or

(6) the entry of a decree or order by a court having jurisdiction in the premises adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition

 

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seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) or any other applicable insolvency law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days; or

(7) the institution by the Company of proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) or any other applicable insolvency law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due; or

(8) the taking or entry against the Company or any of its Restricted Subsidiaries of judgements or decrees for the payment of money in excess of the greater of US$75,000,000 and 2% of the Equity of the Company in the aggregate, if the Company or such Restricted Subsidiaries, as the case may be, fails to file an appeal or, if the Company or such Restricted Subsidiaries, as the case may be, does file an appeal, that judgment or decree is not within a period of 90 consecutive days from the date of such appeal and does not remain vacated, discharged or stayed; or

(9) any other Event of Default provided with respect to Securities of that series.

SECTION 502. Acceleration of Maturity; Rescission and Annulment.

If an Event of Default described in clause (1), (2), (3), (4), (5) or (8) of Section 501 with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of such affected series may, subject to any subordination provisions thereof, declare the principal amount (or, if the Securities of that series are Original Issue Discount Securities or Indexed Securities, such portion of the principal amount as may be specified in the terms of that series) of all of the Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified portion thereof) shall become immediately due and payable. If an Event of Default specified in Section 501(6) or 501(7) occurs and is continuing, then the principal amount of all the Securities shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.

At any time after a declaration of acceleration with respect to Securities of any series (or of all series, as the case may be) has been made, but before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided in this

 

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Article, the Holders of a majority in principal amount of the Outstanding Securities of that series (or of all series, as the case may be), by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if

(1) the Company has paid or deposited with the Trustee a sum sufficient to pay in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))

(A) all overdue interest, if any, on all Outstanding Securities of that series (or of all series, as the case may be) and any related coupons,

(B) all unpaid principal of (and premium, if any) any Outstanding Securities of that series (or of all series, as the case may be) which has become due otherwise than by such declaration of acceleration, and interest on such unpaid principal at the rate or rates prescribed therefor in such Securities,

(C) to the extent lawful, interest on overdue interest, if any, at the rate or rates prescribed therefor in such Securities, and

(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and

(2) all Events of Default with respect to Securities of that series (or of all series, as the case may be), other than the non-payment of amounts of principal of (or premium, if any, on) or interest on Securities of that series (or of all series, as the case may be) which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.

No such rescission shall affect any subsequent default or impair any right consequent thereon.

Notwithstanding the preceding paragraph, in the event of a declaration of acceleration in respect of the Securities because of an Event of Default specified in Section 501(5) shall have occurred and be continuing, such declaration of acceleration shall be automatically annulled if the Debt that is the subject of such Event of Default has been discharged or the holders thereof have rescinded their declaration of acceleration in respect of such Debt, and written notice of such discharge or rescission, as the case may be, shall have been given to the Trustee by the Company and countersigned by the holders of such Debt or a trustee, fiduciary or agent for such holders, within 30 days after such declaration of acceleration in respect of the Securities, and no other Event of Default has occurred during such 30-day period which has not been cured or waived during such period.

 

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SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.

The Company covenants that if

(1) default is made in the payment of any installment of interest on any Security or any related coupon when such interest becomes due and payable and such default continues for a period of 30 days, or

(2) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof,

then the Company will, upon demand of the Trustee, pay to the Trustee for the benefit of the Holders of such Securities and coupons, the whole amount then due and payable on such Securities and coupons for principal (and premium, if any) and interest, if any, and interest on any overdue principal (and premium, if any) and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.

If an Event of Default with respect to Securities of any series (or of all series, as the case may be) occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series (or of all series, as the case may be) by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.

SECTION 504. Trustee May File Proofs of Claim.

In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal, premium, if any, or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,

(i) to file and prove a claim for the whole amount of principal (and premium, if any), or such portion of the principal amount of any series of Original

 

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Issue Discount Securities or Indexed Securities as may be specified in the terms of such series, and interest, if any, owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and

(ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 606.

Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

SECTION 505. Trustee May Enforce Claims Without Possession of Securities.

All rights of action and claims under this Indenture or the Securities or coupons may be prosecuted and enforced by the Trustee without the possession of any of the Securities or coupons or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities and coupons in respect of which such judgment has been recovered.

SECTION 506. Application of Money Collected.

Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, if any, upon presentation of the Securities or coupons, or both, as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

First : To the payment of all amounts due the Trustee under Section 606;

Second : To the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest, if any, on the Securities and coupons in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities and coupons for principal (and premium, if any) and interest, if any, respectively; and

 

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Third : The balance, if any, to the Person or Persons entitled thereto.

SECTION 507. Limitation on Suits.

No Holder of any Security of any series or any related coupons shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, the Securities of any series, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless

(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;

(2) the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of that series in the case of any Event of Default described in clause (1), (2), (3), (4), (5) or (8) of Section 501, or, in the case of any Event of Default described in clause (6) or (7) of Section 501, the Holders of at least 25% in aggregate principal amount of all Outstanding Securities, shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

(3) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;

(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and

(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority or more in principal amount of the Outstanding Securities of that series in the case of any Event of Default described in clause (1), (2), (3), (4), (5) or (8) of Section 501, or, in the case of any Event of Default described in clause (6) or (7) of Section 501, by the Holders of a majority or more in principal amount of all Outstanding Securities;

it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Securities of the same series, in the case of any Event of Default described in clause (1), (2), (3), (4), (5) or (8) of Section 501, or of Holders of all Securities in the case of any Event of Default described in clause (6) or (7) of Section 501, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all Holders of Securities of the same series, in the case of any Event of Default described in clause (1), (2), (3), (4), (5) or (8) of Section 501, or of Holders of all Securities in the case of any Event of Default described in clause (6) or (7) of Section 501.

SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.

Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment, as provided herein

 

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(including, if applicable, Article Fourteen) and in such Security, of the principal of (and premium, if any) and (subject to Section 307) interest, if any, on, such Security or payment of such coupon on the respective Stated Maturities expressed in such Security or coupon (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

SECTION 509. Restoration of Rights and Remedies.

If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders of Securities and coupons shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.

SECTION 510. Rights and Remedies Cumulative.

Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities or coupons is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

SECTION 511. Delay or Omission Not Waiver.

No delay or omission of the Trustee or of any Holder of any Security or coupon to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

SECTION 512. Control by Holders.

With respect to the Securities of any series, the Holders of not less than a majority in principal amount of the Outstanding Securities of such series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, relating to or arising under clause (1), (2), (3), (4), (5) or (8) of Section 501, and, with respect to all Securities, the Holders of not less than a majority in principal amount of all Outstanding Securities shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, relating to or arising under clause (6) or (7) of Section 501, provided that in each case

 

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(1) such direction shall not be in conflict with any rule of law or with this Indenture,

(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and

(3) the Trustee need not take any action which might involve it in personal liability or be unjustly prejudicial to the Holders of Securities of such series not consenting.

SECTION 513. Waiver of Past Defaults.

Subject to Section 502, the Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default described in clause (1), (2), (3), (4), (5) or (8) of Section 501 (or, in the case of a default described in clause (6) or (7) of Section 501, the Holders of not less than a majority in principal amount of all Outstanding Securities may waive any such past default), and its consequences, except a default

(1) in respect of the payment of the principal of (or premium, if any) or interest, if any, on any Security or any related coupon, or

(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.

Upon any such waiver, any such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.

SECTION 514. Waiver of Stay or Extension Laws.

The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

 

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ARTICLE SIX

THE TRUSTEE

SECTION 601. Notice of Defaults.

Within 90 days after the occurrence of any Default hereunder with respect to the Securities of any series, the Trustee shall transmit in the manner and to the extent provided in TIA Section 313(c), notice of such default hereunder known to the Trustee, unless such Default shall have been cured or waived; provided , however , that, except in the case of a Default in the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series or in the payment of any sinking fund installment with respect to Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of the Holders of Securities of such series and any related coupons; and provided further that in the case of any Default of the character specified in Section 501(4) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof.

SECTION 602. Certain Rights of Trustee.

Subject to the provisions of TIA Sections 315(a) through 315(d):

(1) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

(2) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;

(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate;

(4) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any series or any related coupons pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

 

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(6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney;

(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; and

(8) the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture.

The Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

SECTION 603. Trustee Not Responsible for Recitals or Issuance of Securities.

The recitals contained herein and in the Securities, except for the Trustee’s certificates of authentication, and in any coupons shall be taken as the statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or coupons, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Company are true and accurate, subject to the qualifications set forth therein. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.

SECTION 604. May Hold Securities.

The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company or of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and coupons and, subject to TIA Sections 310(b) and 311, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.

 

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SECTION 605. Money Held in Trust.

Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.

SECTION 606. Compensation and Reimbursement.

The Company agrees:

(1) to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and

(3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.

The obligations of the Company under this Section to compensate the Trustee, to pay or reimburse the Trustee for expenses, disbursements and advances and to indemnify and hold harmless the Trustee shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture. As security for the performance of such obligations of the Company, the Trustee shall have a claim prior to the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (or premium, if any) or interest, if any, on particular Securities or any coupons.

When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 501(6) or (7), the expenses (including reasonable charges and expense of its counsel) of and the compensation for such services are intended to constitute expenses of administration under any applicable U.S. or Canadian federal, state or provincial bankruptcy, insolvency or other similar law.

The provisions of this Section shall survive the termination of this Indenture.

SECTION 607. Corporate Trustee Required; Eligibility.

(i) There shall be at all times a Trustee hereunder which shall be eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined capital and surplus (together with that of its parent) of at least $50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of Federal, State, territorial or District of

 

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Columbia supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

SECTION 608. Resignation and Removal; Appointment of Successor.

(i) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 609.

(ii) The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 609 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

(iii) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of not less than a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company.

(iv) If at any time:

(1) the Trustee shall fail to comply with the provisions of TIA Section 310(b) after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or

(2) the Trustee shall cease to be eligible under Section 607(a) and shall fail to resign after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or

(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

then, in any such case, (i) the Company, by a Board Resolution, may remove the Trustee with respect to all Securities or the Securities of such series, or (ii) subject to TIA Section 315(e), any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities of such series and the appointment of a successor Trustee or Trustees.

(v) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such

 

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successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series). If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

(vi) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to the Holders of Securities of such series in the manner provided for in Section 106. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.

SECTION 609. Acceptance of Appointment by Successor.

(i) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.

(ii) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall

 

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constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. Whenever there is a successor Trustee with respect to one or more (but less than all) series of securities issued pursuant to this Indenture, the terms “Indenture” and “Securities” shall have the meanings specified in the provisos to the respective definitions of those terms in Section 101 which contemplate such situation.

(iii) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all rights, powers and trusts referred to in paragraph (i) or (ii) of this Section, as the case may be.

(iv) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.

SECTION 610. Merger, Conversion, Consolidation or Succession to Business.

Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. In case any of the Securities shall not have been authenticated by such predecessor Trustee, any successor Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor Trustee. In all such cases such certificates shall have the full force and effect which this Indenture provides for the certificate of authentication of the Trustee; provided , however , that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Securities in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.

SECTION 611. Appointment of Authenticating Agent.

At any time when any of the Securities remain Outstanding, the Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series and the Trustee shall give written notice of such appointment to all Holders of Securities of the series

 

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with respect to which such Authenticating Agent will serve, in the manner provided for in Section 106. Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustee, and a copy of such instrument shall be promptly furnished to the Company. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect specified in this Section.

Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.

An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give written notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, in the manner provided for in Section 106. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.

The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.

 

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If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:

Dated:                         

This is one of the Securities of a series referred to in, and issued under, the within-mentioned Indenture.

 

THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK,
as Trustee
By  

 

  as Authenticating Agent
By  

 

  Authorized Officer

ARTICLE SEVEN

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.

The Company will furnish or cause to be furnished to the Trustee (1) not more than 15 days after each Regular Record Date a list, in such form as the Trustee may reasonably require, of the names and addresses of Holders as of such Regular Record Date; provided , however , that the Company shall not be obligated to furnish or cause to be furnished such list at any time that the list shall not differ in any respect from the most recent list furnished to the Trustee by the Company and at such times as the Trustee is acting as Security Registrar for the applicable series of Securities and (2) at such other times as the Trustee may request in writing within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished.

SECTION 702. Preservation of List of Names and Addresses of Holders.

The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders contained in the most recent list furnished to it as provided in Section 701 and as to the names and addresses of Holders received by the Trustee in its capacity as Security Registrar for the applicable series of Securities (if acting in such capacity).

The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished.

Holders may communicate as provided in Section 312(b) of the Trust Indenture Act with other Holders with respect to their rights under this Indenture or under the Securities.

 

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SECTION 703. Disclosure of Names and Addresses of Holders.

Every Holder of Securities or coupons, by receiving and holding the same, agrees with the Company and the Trustee that none of the Company or the Trustee or any agent of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with TIA Section 312, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under TIA Section 312(b).

SECTION 704. Reports by Trustee.

(i) Within 60 days after October 15 of each year commencing with the first October 15 after the first issuance of Securities pursuant to this Indenture, the Trustee shall transmit to the Holders of Securities, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, a brief report dated as of such October 15 if required by Section 313(a) of the Trust Indenture Act.

(ii) The Trustee shall comply with Sections 313(b) and 313(c) of the Trust Indenture Act

(iii) A copy of such report shall, at the time of such transmission to the Holders, be filed by the Trustee with the Company (Attention: General Counsel), with each securities exchange upon which any of the Securities are listed (if so listed) and also with the Commission. The Company agrees to notify the Trustee when the Securities become listed on any stock exchange.

SECTION 705. Reports by the Company.

The Company shall:

(1) file with the Trustee, within 15 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;

(2) file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations;

(3) Notwithstanding that the Company may not be required to remain subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the Commission, the Company shall provide the Trustee:

 

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(a) within 140 days after the end of each fiscal year, the information required to be contained in annual reports on Form 20-F, 40-F or form 10-K as applicable (or any successor form); and

(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, the information required to be contained in reports on Form 6-K or Form 8-K (or any successor form) which, regardless of applicable requirements, shall, at a minimum, contain such information required to be provided in quarterly reports under the laws of Canada or any province thereof to security holders of a company with securities listed on The Toronto Stock Exchange, whether or not the Company has any of its securities so listed.

Such information will be prepared in accordance with Canadian disclosure requirements and GAAP; and

(4) transmit to all Holders, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, within 15 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (1) and (2) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.

ARTICLE EIGHT

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

SECTION 801. Company May Consolidate, etc., Only on Certain Terms.

The Company shall not consolidate or amalgamate with or merge into or enter into any statutory arrangement with any other corporation, or convey, transfer or lease all or substantially all of its properties and assets to any Person, unless:

(1) the entity formed by or continuing from such consolidation or amalgamation or into which the Company is merged or with which the Company enters into such arrangement or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety (A) shall be a corporation, partnership or trust organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia or the laws of Canada or any province thereof and (B) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, or shall assume by operation of law, the Company’s obligation for the due and punctual payment of the principal of (and premium, if any) and interest, if any, on all the Securities and the performance and observance of every covenant of this Indenture on the part of the Company to be performed or observed;

(2) immediately before and after giving effect to such transaction, no Default or Event of Default and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and

 

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(3) the Company or such Person shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.

This Section shall only apply to a merger or consolidation in which the Company is not the surviving corporation and to conveyances, leases and transfers by the Company as transferor or lessor.

For greater certainty, nothing in this Indenture prohibits the Company’s proposed amalgamation with PanCanadian Energy Corporation, as described in the Company’s prospectus dated October 31, 2001. Any Securities issued before such amalgamation will become obligations of the amalgamated corporation.

SECTION 802. Successor Person Substituted.

Upon any consolidation by the Company with or merger by the Company into any other corporation or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety to any Person in accordance with Section 801, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and in the event of any such conveyance or transfer, the Company (which term shall for this purpose mean the Person named as the “Company” in the first paragraph of this Indenture or any successor Person which shall theretofore become such in the manner described in Section 801), except in the case of a lease, shall be discharged of all obligations and covenants under this Indenture and the Securities and the coupons and may be dissolved and liquidated.

SECTION 803. Securities to Be Secured in Certain Events.

If, upon any such consolidation of the Company with or merger of the Company into any other corporation, or upon any conveyance, lease or transfer of the property of the Company as an entirety or substantially as an entirety to any other Person, any Restricted Property of the Company or of any Restricted Subsidiary, or any Restricted Securities owned immediately prior thereto, would thereupon become subject to any Lien, then unless such Lien could be created pursuant to Section 1010 without equally and ratably securing the Securities, the Company, prior to or simultaneously with such consolidation, merger, conveyance, lease or transfer, will, as to such Restricted Property or Restricted Securities, secure the Securities Outstanding hereunder (together with, if the Company shall so determine, any other Debt of the Company now existing or hereafter created which is not subordinate to the Securities) equally and ratably with (or prior to) the Debt which upon such consolidation, merger, conveyance, lease or transfer is to become secured as to such Restricted Property or Restricted Securities by such Lien, or will cause such Securities to be so secured; provided that, for the purpose of providing such equal and ratable security, the principal amount of Original Issue Discount Securities and Indexed Securities shall mean that amount which would at the time of making such effective provision be due and payable pursuant to Section 502 and the terms of such Original Issue Discount Securities and Indexed Securities upon a declaration of acceleration of the Maturity

 

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thereof, and the extent of such equal and ratable security shall be adjusted, to the extent permitted by law, as and when said amount changes over time pursuant to the terms of such Original Issue Discount Securities and Indexed Securities.

ARTICLE NINE

SUPPLEMENTAL INDENTURES

SECTION 901. Supplemental Indentures Without Consent of Holders.

Without the consent of any Holders, the Company, when authorized by or pursuant to a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:

(1) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company contained herein and in the Securities; or

(2) to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities and any related coupons (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company; or

(3) to add any additional Events of Default (and if such Events of Default are to be for the benefit of less than all series of Securities, stating that such Events of Default are being included solely for the benefit of such series); or

(4) to add to or change any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of principal of or any premium or interest on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be issued in exchange for Bearer Securities of other authorized denominations or to permit or facilitate the issuance of Securities in uncertificated form; provided that any such action shall not adversely affect the interests of the Holders of Securities of any series or any related coupons in any material respect; or

(5) to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or

(6) to secure the Securities pursuant to the requirements of Section 803 or 1010 or otherwise; or

(7) to establish the form or terms of Securities of any series as permitted by Sections 201 and 301; or

 

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(8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 609(b); or

(9) to close this Indenture with respect to the authentication and delivery of additional series of Securities, to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture; provided such action shall not adversely affect the interests of the Holders of Securities of any series and any related coupons in any material respect; or

(10) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Sections 401, 1402 and 1403; provided that any such action shall not adversely affect the interests of the Holders of Securities of such series and any related coupons or any other series of Securities in any material respect.

SECTION 902. Supplemental Indentures with Consent of Holders.

With the consent of the Holders of not less than a majority in principal amount of all Outstanding Securities affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by or pursuant to a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture which affect such series of Securities or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided , however , that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security of such series,

(1) change the Stated Maturity of the principal of (or premium, if any) or any installment of interest on any Security of such series, or reduce the principal amount thereof (or premium, if any) or the rate of interest, if any, thereon, or change any obligation of the Company to pay Additional Amounts contemplated by Section 1005 (except as contemplated by Section 801(1) and permitted by Section 901(1)), or reduce the amount of the principal of an Original Issue Discount Security of such series that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502 or the amount thereof provable in bankruptcy pursuant to Section 504, or adversely affect any right of repayment at the option of any Holder of any Security of such series, or change any Place of Payment where, or the Currency in which, any Security of such series or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption or repayment at the option of the Holder, on or after the Redemption Date or Repayment Date, as the case may be), or adversely affect any right to convert or exchange any Security as may be provided pursuant to Section 301 herein, or

 

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(2) reduce the percentage in principal amount of the Outstanding of such series required for any such supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions of this Indenture which affect such series or certain defaults applicable to such series hereunder and their consequences provided for in this Indenture, or reduce the requirements of Section 1504 for quorum or voting with respect to Securities of such series, or

(3) modify any of the provisions of this Section, Section 513 or Section 1011, except to increase any such percentage or to provide that certain other provisions of this Indenture which affect such series cannot be modified or waived without the consent of the Holder of each Outstanding Security of such series.

A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series. Any such supplemental indenture adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture, or modifying in any manner the rights of the Holders of Securities of such series, shall not affect the rights under this Indenture of the Holders of Securities of any other series.

It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.

SECTION 903. Execution of Supplemental Indentures.

In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

SECTION 904. Effect of Supplemental Indentures.

Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

SECTION 905. Conformity with Trust Indenture Act.

Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.

SECTION 906. Reference in Securities to Supplemental Indentures.

 

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Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.

SECTION 907. Notice of Supplemental Indentures.

Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of Section 902, the Company shall give notice thereof to the Holders of each Outstanding Security affected, in the manner provided for in Section 106, setting forth in general terms the substance of such supplemental indenture.

ARTICLE TEN

COVENANTS

SECTION 1001. Payment of Principal, Premium, if any, and Interest.

The Company covenants and agrees for the benefit of the Holders of each series of Securities and any related coupons that it will duly and punctually pay the principal of (and premium, if any) and interest, if any, on the Securities of that series in accordance with the terms of the Securities, any coupons appertaining thereto and this Indenture. Unless otherwise specified as contemplated by Section 301 with respect to any series of Securities, any interest installments due on Bearer Securities on or before Maturity shall be payable only upon presentation and surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature.

SECTION 1002. Maintenance of Office or Agency.

If the Securities of a series are issuable only as Registered Securities, the Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange, where Securities of that series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served.

If Securities of a series are issuable as Bearer Securities, the Company will maintain (A) in The City of New York, an office or agency where any Registered Securities of that series may be presented or surrendered for payment, where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange, where Securities of that series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable, where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served and where Bearer Securities of that series and related coupons may be presented or surrendered for payment in the circumstances described in the following paragraph (and not otherwise)

 

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(B) subject to any laws or regulations applicable thereto, in a Place of Payment for that series which is located outside the United States, an office or agency where Securities of that series and related coupons may be presented and surrendered for payment; provided , however , that, if the Securities of that series are listed on any stock exchange located outside the United States and such stock exchange shall so require, the Company will maintain a Paying Agent for the Securities of that series in any required city located outside the United States so long as the Securities of that series are listed on such exchange, and (C) subject to any laws or regulations applicable thereto, in a Place of Payment for that series located outside the United States an office or agency where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange, where Securities of that series that are convertible and exchangeable may be surrendered for conversion or exchange, as applicable and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served.

The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, except that Bearer Securities of any series and the related coupons may be presented and surrendered for payment at the offices specified in the Security, in London, and the Company hereby appoints the same as its agents to receive such respective presentations, surrenders, notices and demands.

Unless otherwise specified with respect to any Securities pursuant to Section 301, no payment of principal, premium or interest on Bearer Securities shall be made at any office or agency of the Company in the United States or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States; provided , however , that, if the Securities of a series are payable in Dollars, payment of principal of (and premium, if any) and interest, if any, on any Bearer Security shall be made at the office of the Company’s Paying Agent in The City of New York, if (but only if) payment in Dollars of the full amount of such principal, premium or interest, as the case may be, at all offices or agencies outside the United States maintained for such purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions.

The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind any such designation; provided , however , that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in accordance with the requirements set forth above for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. Unless otherwise specified with respect to any Securities as contemplated by Section 301 with respect to a series of Securities, the Company hereby designates as a Place of Payment for each series of Securities the office or agency of the Company in the Borough of Manhattan, The City of New York, and initially appoints the Trustee at its Corporate Trust Office as Paying Agent in such city and as its agent to receive all such presentations, surrenders, notices and demands.

 

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Unless otherwise specified with respect to any Securities pursuant to Section 301, if and so long as the Securities of any series (i) are denominated in a Currency other than Dollars or (ii) may be payable in a Currency other than Dollars, or so long as it is required under any other provision of the Indenture, then the Company will maintain with respect to each such series of Securities, or as so required, at least one Exchange Rate Agent.

SECTION 1003. Money for Securities Payments to Be Held in Trust.

If the Company shall at any time act as its own Paying Agent with respect to any series of Securities and any related coupons, it will, on or before each due date of the principal of (or premium, if any) or interest, if any, on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal of (or premium, if any) or interest, if any, on Securities of such series so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.

Whenever the Company shall have one or more Paying Agents for any series of Securities and any related coupons, it will, prior to or on each due date of the principal of (or premium, if any) or interest, if any, on any Securities of that series, deposit with a Paying Agent a sum (in the Currency described in the preceding paragraph) sufficient to pay the principal (or premium, if any) or interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.

The Company will cause each Paying Agent (other than the Trustee) for any series of Securities to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:

(1) hold all sums held by it for the payment of the principal of (and premium, if any) and interest, if any, on Securities of such series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;

(2) give the Trustee notice of any default by the Company (or any other obligor upon the Securities of such series) in the making of any payment of principal of (or premium, if any) or interest, if any, on the Securities of such series; and

(3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.

The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which sums were held by

 

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the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums.

Except as provided in the Securities of any series, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (or premium, if any) or interest, if any, on any Security of any series, or any coupon appertaining thereto, and remaining unclaimed for two years (or such shorter period as may be specified in the applicable abandoned property statutes) after such principal, premium or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security or coupon shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided , however , that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in an Authorized Newspaper, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.

SECTION 1004. Statement as to Compliance.

The Company will deliver to the Trustee, within 120 days after the end of each fiscal year, a brief certificate from the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of the Company’s compliance with all conditions and covenants under this Indenture. For purposes of this Section 1004, such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture.

SECTION 1005. Additional Amounts.

Unless otherwise provided in Section 301 pursuant to one or more Board Resolutions (and to the extent established pursuant to, rather than set forth in, a Board Resolution, in an Officer’s Certificate detailing such establishment) or in one or more indentures supplemental hereto, all payments made by the Company under or with respect to the Securities will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the Government of Canada or of any province or territory thereof or by any authority or agency therein or thereof having power to tax (hereinafter “Canadian Taxes”), unless the Company is required to withhold or deduct Canadian Taxes by law or by the interpretation or administration thereof. If the Company is so required to withhold or deduct any amount for or on account of Canadian Taxes from any payment made under or with respect to the Securities, the Company will pay to each Holder as additional interest such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each Holder after such withholding or deduction (and after deducting any Canadian Taxes on such Additional Amounts) will not be less than the amount the Holder would have received if such Canadian Taxes had not been withheld or deducted. However, no Additional Amounts will be payable with respect to a payment made to a Holder (such Holder, an “Excluded Holder”) in respect of the beneficial owner thereof:

 

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  (i) with which the Company does not deal at arm’s length (within the meaning of the Income Tax Act (Canada)) at the time of making such payment;

 

  (ii) which is subject to such Canadian Taxes by reason of the Holder being a resident, domicile or national of, or engaged in business or maintaining a permanent establishment or other physical presence in or otherwise having some connection with Canada or any province or territory thereof otherwise than by the mere holding of Securities or the receipt of payments thereunder; or

 

  (iii) which is subject to such Canadian Taxes by reason of the Holder’s failure to comply with any certification, identification, information, documentation or other reporting requirements if compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to exemption from, or a reduction in the rate of deduction or withholding of, such Canadian Taxes.

The Company will also:

 

  (i) make such withholding or deduction; and

 

  (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.

The Company will furnish to the Holders of the Securities, within 60 days after the date the payment of any Canadian Taxes is due pursuant to applicable law, certified copies of tax receipts or other documents evidencing such payment by the Company.

The Company will indemnify and hold harmless each Holder (other than an Excluded Holder) and upon written request reimburse each such Holder for the amount of:

 

  (i) any Canadian Taxes so levied or imposed and paid by such Holder as a result of payments made under or with respect to the Securities;

 

  (ii) any liability (including penalties, interest and expenses) arising therefrom or with respect thereto; and

 

  (iii) any Canadian Taxes imposed with respect to any reimbursement under clause (i) or (ii) in this paragraph, but excluding any such Canadian Taxes on such Holder’s net income.

Wherever in this Indenture there is mentioned, in any context, the payment of principal (and premium, if any), interest or any other amount payable under or with respect to a Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.

 

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SECTION 1006. Payment of Taxes and Other Claims.

The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all material taxes, assessments and governmental charges levied or imposed upon the Company or any Restricted Subsidiary or upon the income, profits or property of the Company or any Restricted Subsidiary, and (2) all material lawful claims for labor, materials and supplies which, if unpaid, might by law become a Lien upon any Restricted Property of the Company or any Restricted Subsidiary; provided , however , that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings.

SECTION 1007. To Carry on Business.

The Company will itself or through its Subsidiaries carry on its business in accordance with ordinary industry practice (which may include carrying on business in partnership), will keep or cause to be kept proper books of account in relation to its business and the business of its Subsidiaries, as the case may be, and, subject to the other provisions of this Indenture, will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, and will not consolidate, amalgamate or merge with any other corporation or transfer its undertaking and property as an entirety or substantially as an entirety to any other Person, except in compliance with the provisions of Article Eight; provided, however, that nothing herein contained shall prevent the Company from ceasing to carry on any portion of its business (but not substantially all of its business) or from ceasing to operate any premises or property if it shall be advisable and in the best interests of the Company.

SECTION 1008. Intentionally Deleted.

SECTION 1009. Corporate Existence.

Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the rights (charter and statutory) and franchises of the Company and any Restricted Subsidiary; provided, however, that the Company shall not be required to preserve any such right or franchise if the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries as a whole.

SECTION 1010. Limitation on Liens.

So long as any Securities are Outstanding, the Company will not, and will not permit any Restricted Subsidiary of the Company to, create, incur, assume or otherwise have Outstanding any Lien securing any Indebtedness, other than Permitted Liens, without also simultaneously or prior thereto securing, or causing such Restricted Subsidiary to secure, Indebtedness under this Indenture so that Securities are secured equally and ratably with or prior to such other Indebtedness or liability, except that the Company and its Restricted Subsidiaries may incur a Lien to secure Indebtedness without securing the Securities if, after giving effect thereto, the principal amount of Indebtedness secured by Liens created, incurred or assumed after the date hereof and otherwise prohibited by this Indenture does not exceed 10% of the Company’s Consolidated Net Tangible Assets.

 

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Notwithstanding the foregoing, transactions such as the sale (including any forward sale) or other transfer of (i) oil, gas, minerals or other resources of a primary nature, whether in place or when produced, for a period of time until, or in an amount such that, the purchaser will realize therefrom a specified amount of money or a specified rate of return (however determined), or a specified amount of such oil, gas, minerals, or other resources of a primary nature, or (ii) any other interest in property of the character commonly referred to as a “production payment”, will not be deemed to create Indebtedness secured by Liens.

The Company shall ensure that it and its Restricted Subsidiaries directly own, exclusive of the Company’s and its Restricted Subsidiaries’ investments in any Subsidiaries, not less than 75% of Consolidated Net Tangible Assets. So long as any of the Securities are Outstanding, the Company will not, and will not permit any of its Subsidiaries to create, incur, assume or otherwise have outstanding any Lien to secure Indebtedness, other than Permitted Liens, on the shares or other equity interests of any Restricted Subsidiary, without also simultaneously or prior thereto securing, or causing such Subsidiary to secure, Indebtedness under this Indenture so that the Securities are secured equally and ratably with or prior to such other Indebtedness.

SECTION 1011. Waiver of Certain Covenants.

The Company may, with respect to any series of Securities, omit in any particular instance to comply with any term, provision or condition which affects such series set forth in Section 803 or Sections 1006 to 1010, inclusive, or, as specified pursuant to Section 301(15) for Securities of such series, in any covenants of the Company added to Article Ten pursuant to Section 301(14) or Section 301(15) in connection with Securities of such series, if before the time for such compliance the Holders of at least a majority in principal amount of all Outstanding Securities of any series, by Act of such Holders, waive such compliance in such instance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee to Holders of Securities of such series in respect of any such term, provision or condition shall remain in full force and effect.

ARTICLE ELEVEN

REDEMPTION OF SECURITIES

SECTION 1101. Applicability of Article.

Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article.

SECTION 1102. Election to Redeem; Notice to Trustee.

The election of the Company to redeem any Securities shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Company, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date

 

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and of the principal amount of Securities of such series to be redeemed and shall deliver to the Trustee such documentation and records as shall enable the Trustee to select the Securities to be redeemed pursuant to Section 1103. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction.

SECTION 1103. Selection by Trustee of Securities to Be Redeemed.

If less than all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions of the principal of Securities of such series; provided , however , that no such partial redemption shall reduce the portion of the principal amount of a Security not redeemed to less than the minimum authorized denomination for Securities of such series established pursuant to Section 301.

The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.

For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.

SECTION 1104. Notice of Redemption.

Except as otherwise specified as contemplated by Section 301, notice of redemption shall be given in the manner provided for in Section 106 not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed. Failure to give notice in the manner provided in Section 106 to the Holder of any Securities designated for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other Securities or portion thereof.

All notices of redemption shall state:

(1) the Redemption Date,

(2) the Redemption Price and the amount of accrued interest to the Redemption Date payable as provided in Section 1106, if any,

(3) if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed,

 

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(4) in case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the holder will receive, without charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed,

(5) that on the Redemption Date, the Redemption Price and accrued interest, if any, to the Redemption Date payable as provided in Section 1106 will become due and payable upon each such Security, or the portion thereof, to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,

(6) the Place or Places of Payment where such Securities, together in the case of Bearer Securities with all coupons appertaining thereto, if any, maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price and accrued interest, if any,

(7) that the redemption is for a sinking fund, if such is the case,

(8) that, unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied by all coupons maturing subsequent to the Redemption Date or the amount of any such missing coupon or coupons will be deducted from the Redemption Price unless security or indemnity satisfactory to the Company, the Trustee and any Paying Agent is furnished, and

(9) if Bearer Securities of any series are to be redeemed and any Registered Securities of such series are not to be redeemed, and if such Bearer Securities may be exchanged for Registered Securities not subject to redemption on such Redemption Date pursuant to Section 305 or otherwise, the last date, as determined by the Company, on which such exchanges may be made.

Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company.

SECTION 1105. Deposit of Redemption Price.

Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the Redemption Price of, and accrued interest, if any, on, all the Securities which are to be redeemed on that date.

SECTION 1106. Securities Payable on Redemption Date.

Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if

 

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applicable, as provided in Sections 312(b), 312(d) and 312(e)) (together with accrued interest, if any, to the Redemption Date), and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest, if any) such Securities shall, if the same were interest-bearing, cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided below, shall be void. Upon surrender of any such Security for redemption in accordance with said notice, together with all coupons, if any, appertaining thereto maturing after the Redemption Date, such Security shall be paid by the Company at the Redemption Price, together with accrued interest, if any, to the Redemption Date; provided , however , that installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of coupons for such interest; and provided further that installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.

If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant coupons maturing after the Redemption Date, such Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided , however , that interest represented by coupons shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of those coupons.

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) set forth in such Security.

 

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SECTION 1107. Securities Redeemed in Part.

Any Security which is to be redeemed only in part (pursuant to the provisions of this Article or of Article Twelve) shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.

SECTION 1108. Tax Redemption.

If specified pursuant to Section 301, the Securities of a series will be subject to redemption at any time, in whole but not in part, at a redemption price equal to the principal amount thereof together with accrued and unpaid interest to the date fixed for redemption, upon the giving of a notice as described below, if (1) the Company determines that (a) as a result of any change in or amendment to the laws (or any regulations or rulings promulgated thereunder) of Canada or of any political subdivision or taxing authority thereof or therein affecting taxation, or any change in official position regarding application or interpretation of such laws, regulations or rulings (including a holding by a court of competent jurisdiction), which change or amendment is announced or becomes effective on or after a date specified in the applicable prospectus supplement, if any date is so specified, the Company has or will become obligated to pay, on the next succeeding date on which interest is due, Additional Amounts pursuant to Section 1005 or (b) on or after a date specified pursuant to Section 301, any action has been taken by any taxing authority of, or any decision has been rendered by a court of competent jurisdiction in, Canada or any political subdivision or taxing authority thereof or therein, including any of those actions specified in (a) above, whether or not such action was taken or decision was rendered with respect to the Company, or any change, amendment, application or interpretation shall be officially proposed, which, in any such case, in the Opinion of Counsel to the Company, will result in the Company becoming obligated to pay, on the next succeeding date on which interest is due, Additional Amounts with respect to any Security of such series and (2) in any such case, the Company in its business judgment determines that such obligation cannot be avoided by the use of reasonable measures available to the Company; provided , however , that (i) no such notice of redemption may be given earlier than 60 or later than 30 days prior to the earliest date on which the Company would be obligated to pay such Additional Amounts were a payment in respect of the Securities then due, and (ii) at the time such notice of redemption is given, such obligation to pay such Additional Amounts remains in effect.

 

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ARTICLE TWELVE

SINKING FUNDS

SECTION 1201. Applicability of Article.

Retirements of Securities of any series pursuant to any sinking fund shall be made in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article.

The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any mandatory sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.

SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.

Subject to Section 1203, in lieu of making all or any part of any mandatory sinking fund payment with respect to any Securities of a series in cash, the Company may at its option (1) deliver to the Trustee Outstanding Securities of a series (other than any previously called for redemption) theretofore purchased or otherwise acquired by the Company together in the case of any Bearer Securities of such series with all unmatured coupons appertaining thereto, and/or (2) receive credit for the principal amount of Securities of such series which have been previously delivered to the Trustee by the Company or for Securities of such series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any mandatory sinking fund payment with respect to the Securities of the same series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided , however , that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly.

SECTION 1203. Redemption of Securities for Sinking Fund.

Not less than 60 days prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) and the portion thereof, if any, which is to be satisfied by delivering or crediting Securities of that series pursuant to Section 1202 (which Securities will, if not previously delivered, accompany such certificate) and whether the Company intends to exercise its right to make a permitted optional sinking fund payment with respect to such series.

 

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Such certificate shall be irrevocable and upon its delivery the Company shall be obligated to make the cash payment or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. In the case of the failure of the Company to deliver such certificate, the sinking fund payment due on the next succeeding sinking fund payment date for that series shall be paid entirely in cash and shall be sufficient to redeem the principal amount of such Securities subject to a mandatory sinking fund payment without the option to deliver or credit Securities as provided in Section 1202 and without the right to make any optional sinking fund payment, if any, with respect to such series.

Not more than 60 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.

Prior to any sinking fund payment date, the Company shall pay to the Trustee or a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) in cash a sum equal to any interest that will accrue to the date fixed for redemption of Securities or portions thereof to be redeemed on such sinking fund payment date pursuant to this Section 1203.

Notwithstanding the foregoing, with respect to a sinking fund for any series of Securities, if at any time the amount of cash to be paid into such sinking fund on the next succeeding sinking fund payment date, together with any unused balance of any preceding sinking fund payment or payments for such series, does not exceed in the aggregate $100,000, the Trustee, unless requested by the Company, shall not give the next succeeding notice of the redemption of Securities of such series through the operation of the sinking fund. Any such unused balance of moneys deposited in such sinking fund shall be added to the sinking fund payment for such series to be made in cash on the next succeeding sinking fund payment date or, at the request of the Company, shall be applied at any time or from time to time to the purchase of Securities of such series, by public or private purchase, in the open market or otherwise, at a purchase price for such Securities (excluding accrued interest and brokerage commissions, for which the Trustee or any Paying Agent will be reimbursed by the Company) not in excess of the principal amount thereof.

ARTICLE THIRTEEN

REPAYMENT AT OPTION OF HOLDERS

SECTION 1301. Applicability of Article.

Repayment of Securities of any series before their Stated Maturity at the option of Holders thereof shall be made in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article.

 

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SECTION 1302. Repayment of Securities.

Securities of any series subject to repayment in whole or in part at the option of the Holders thereof will, unless otherwise provided in the terms of such Securities, be repaid at a price equal to the principal amount thereof, together with interest, if any, thereon accrued to the Repayment Date specified in or pursuant to the terms of such Securities. The Company covenants that on or before the Repayment Date it will deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal (or, if so provided by the terms of the Securities of any series, a percentage of the principal) of and (except if the Repayment Date shall be an Interest Payment Date) accrued interest, if any, on, all the Securities or portions thereof, as the case may be, to be repaid on such date.

SECTION 1303. Exercise of Option.

Securities of any series subject to repayment at the option of the Holders thereof will contain an “Option to Elect Repayment” form on the reverse of such Securities. To be repaid at the option of the Holder, any Security so providing for such repayment, with the “Option to Elect Repayment” form on the reverse of such Security duly completed by the Holder (or by the Holder’s attorney duly authorized in writing), must be received by the Company at the Place of Payment therefor specified in the terms of such Security (or at such other place or places or which the Company shall from time to time notify the Holders of such Securities) not earlier than 45 days nor later than 30 days prior to the Repayment Date. If less than the entire principal amount of such Security is to be repaid in accordance with the terms of such Security, the principal amount of such Security to be repaid, in increments of the minimum denomination for Securities of such series, and the denomination or denominations of the Security or Securities to be issued to the Holder for the portion of the principal amount of such Security surrendered that is not to be repaid, must be specified. The principal amount of any Security providing for repayment at the option of the Holder thereof may not be repaid in part if, following such repayment, the unpaid principal amount of such Security would be less than the minimum authorized denomination of Securities of the series of which such Security to be repaid is a part. Except as otherwise may be provided by the terms of any Security providing for repayment at the option of the Holder thereof, exercise of the repayment option by the Holder shall be irrevocable unless waived by the Company.

SECTION 1304. When Securities Presented for Repayment Become Due and Payable.

If Securities of any series providing for repayment at the option of the Holders thereof shall have been surrendered as provided in this Article and as provided by or pursuant to the terms of such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall become due and payable and shall be paid by the Company on the Repayment Date therein specified, and on and after such Repayment Date (unless the Company shall default in the payment of such Securities on such Repayment Date) such Securities shall, if the same were interest-bearing, cease to bear interest and the coupons for such interest appertaining to any

 

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Bearer Securities so to be repaid, except to the extent provided below, shall be void. Upon surrender of any such Security for repayment in accordance with such provisions, together with all coupons, if any, appertaining thereto maturing after the Repayment Date, the principal amount of such Security so to be repaid shall be paid by the Company, together with accrued interest, if any, to the Repayment Date; provided , however , that coupons whose Stated Maturity is on or prior to the Repayment Date shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified pursuant to Section 301, only upon presentation and surrender of such coupons; and provided further that, in the case of Registered Securities, installments of interest, if any, whose Stated Maturity is on or prior to the Repayment Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.

If any Bearer Security surrendered for repayment shall not be accompanied by all appurtenant coupons maturing after the Repayment Date, such Security may be paid after deducting from the amount payable therefor as provided in Section 1302 an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made as provided in the preceding sentence, such Holder shall be entitled to receive the amount so deducted; provided , however , that interest represented by coupons shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of those coupons.

If the principal amount of any Security surrendered for repayment shall not be so repaid upon surrender thereof, such principal amount (together with interest, if any, thereon accrued to such Repayment Date) shall, until paid, bear interest from the Repayment Date at the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) set forth in such Security.

SECTION 1305. Securities Repaid in Part.

Upon surrender of any Registered Security which is to be repaid in part only, the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security, without service charge and at the expense of the Company, a new Registered Security or Securities of the same series, of any authorized denomination specified by the Holder, in an aggregate principal amount equal to and in exchange for the portion of the principal of such Security so surrendered which is not to be repaid.

 

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ARTICLE FOURTEEN

DEFEASANCE AND COVENANT DEFEASANCE

SECTION 1401. Company’s Option to Effect Defeasance or Covenant Defeasance.

Except as otherwise specified as contemplated by Section 301 for Securities of any series, the provisions of this Article Fourteen shall apply to each series of Securities, and the Company may, at its option, effect defeasance of the Securities of or within a series under Section 1402, or covenant defeasance of or within a series under Section 1403 in accordance with the terms of such Securities and in accordance with this Article.

SECTION 1402. Defeasance and Discharge.

Upon the Company’s exercise of the above option applicable to this Section with respect to any Securities of or within a series, the Company shall be deemed to have been discharged from its obligations with respect to such Outstanding Securities and any related coupons on the date the conditions set forth in Section 1404 are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Securities and any related coupons, which shall thereafter be deemed to be “Outstanding” only for the purposes of Section 1405 and the other Sections of this Indenture referred to in (A) and (B) below, and to have satisfied all its other obligations under such Securities and any related coupons and this Indenture insofar as such Securities and any related coupons are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of such Outstanding Securities and any related coupons to receive, solely from the trust fund described in Section 1404 and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on such Securities and any related coupons when such payments are due, (B) the Company’s obligations with respect to such Securities under Sections 304, 305, 306, 1002 and 1003 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 1005, (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (D) this Article Fourteen. Subject to compliance with this Article Fourteen, the Company may exercise its option under this Section 1402 notwithstanding the prior exercise of its option under Section 1403 with respect to such Securities and any related coupons.

SECTION 1403. Covenant Defeasance.

Upon the Company’s exercise of the above option applicable to this Section with respect to any Securities of or within a series, the Company shall be released from its obligations under Section 803 and Sections 1006 through 1010, and, if specified pursuant to Section 301, its obligations under any other covenant, with respect to such Outstanding Securities and any related coupons on and after the date the conditions set forth in Section 1404 are satisfied (hereinafter, “covenant defeasance”), and such Securities and any related coupons shall thereafter be deemed not to be “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with such covenants, but shall

 

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continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such Outstanding Securities and any related coupons, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 501(4) or Section 501(8) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Securities and any related coupons shall be unaffected thereby.

SECTION 1404. Conditions to Defeasance or Covenant Defeasance.

The following shall be the conditions to application of either Section 1402 or Section 1403 to any Outstanding Securities of or within a series and any related coupons:

(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 607 who shall agree to comply with the provisions of this Article Fourteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities and any related coupons, (A) an amount (in such Currency in which such Securities and any related coupons are then specified as payable at Stated Maturity), or (B) Government Obligations applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of and premium, if any, and interest, if any, under such Securities and any related coupons, money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent chartered accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (i) the principal of (and premium, if any) and interest, if any, on such Outstanding Securities and any related coupons on the Stated Maturity (or Redemption Date, if applicable) of such principal (and premium, if any) or installment of interest, if any, and (ii) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any related coupons on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and any related coupons; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Obligations to said payments with respect to such Securities and any related coupons. Before such a deposit, the Company may give to the Trustee, in accordance with Section 1102 hereof, a notice of its election to redeem all or any portion of such Outstanding Securities at a future date in accordance with the terms of the Securities of such series and Article Eleven hereof, which notice shall be irrevocable. Such irrevocable redemption notice, if given, shall be given effect in applying the foregoing.

(2) No Default or Event of Default with respect to such Securities or any related coupons shall have occurred and be continuing on the date of such deposit or,

 

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insofar as paragraphs (5) and (6) of Section 501 are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).

(3) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound.

(4) In the case of an election under Section 1402, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of execution of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of such Outstanding Securities and any related coupons will not recognize income, gain or loss for federal income tax purposes as a result of such defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred.

(5) Notwithstanding any other provisions of this Section, such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations in connection therewith pursuant to Section 301.

(6) The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the defeasance under Section 1402 or the covenant defeasance under Section 1403 (as the case may be) have been complied with.

(7) In the case of an election under Section 1403, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States to the effect that the Holders of such Outstanding Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.

(8) Either the Company has delivered to the Trustee an Opinion of Counsel in Canada or a ruling from Canada Customs and Revenue Agency to the effect that the Holders of such Outstanding Securities will not recognize income, gain or loss for Canadian federal, provincial or territorial income tax or other tax purpose as a result of such defeasance or covenant defeasance and will be subject to Canadian federal or provincial income tax and other tax on the same amounts, in the same manner and at the same times as would have been the case had such defeasance not occurred (and for the purposes of such opinion, such Canadian counsel shall assume that Holders of the Securities include Holders who are not resident in Canada).

(9) The Company is not an “insolvent person” within the meaning of the Bankruptcy and Insolvency Act (Canada) on the date of such deposit or at any time during the period ending on the 91st day after the date of such deposit (it being

 

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understood that this condition shall not be deemed satisfied until the expiration of such period).

(10) No Event of Default or Default with respect to such Securities shall have occurred and be continuing on the date of such deposit or, insofar as paragraphs (6) and (7) of Section 501 are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).

(11) The Company has delivered to the Trustee an Opinion of Counsel to the effect that such deposit shall not cause the Trustee or the trust so created to be subject to the Investment Company Act of 1940, as amended.

SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.

Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations (or other property as may be provided pursuant to Section 301) (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 1405, the “Trustee”) pursuant to Section 1404 in respect of such Outstanding Securities and any related coupons shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and any related coupons and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities and any related coupons of all sums due and to become due thereon in respect of principal (and premium, if any) and interest, if any, but such money need not be segregated from other funds except to the extent required by law.

Unless otherwise specified with respect to any Security pursuant to Section 301, if, after a deposit referred to in Section 1404(1) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 312(b) or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 1404(1) has been made in respect of such Security, or (b) a Conversion Event occurs as contemplated in Section 312(d) or 312(e) or by the terms of any Security in respect of which the deposit pursuant to Section 1404(1) has been made, the indebtedness represented by such Security and any related coupons shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any) and interest, if any, on such Security as they become due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on the applicable Market Exchange Rate for such Currency in effect on the third Business Day prior to each payment date, except, with respect to a Conversion Event, for such Currency in effect (as nearly as feasible) at the time of the Conversion Event.

The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 1404 or the principal and interest received in respect thereof other than any such tax, fee

 

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or other charge which by law is for the account of the Holders of such Outstanding Securities and any related coupons.

Anything in this Article Fourteen to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in Section 1404 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent defeasance or covenant defeasance, as applicable, in accordance with this Article.

SECTION 1406. Reinstatement.

If the Trustee or any Paying Agent is unable to apply any money in accordance with Section 1405 by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations under this Indenture and such Securities and any related coupons shall be revived and reinstated as though no deposit had occurred pursuant to Section 1402 or 1403, as the case may be, until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 1405; provided , however , that if the Company makes any payment of principal of (or premium, if any) or interest, if any, on any such Security or any related coupon following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities and any related coupons to receive such payment from the money held by the Trustee or Paying Agent.

ARTICLE FIFTEEN

MEETINGS OF HOLDERS OF SECURITIES

SECTION 1501. Purposes for Which Meetings May Be Called.

A meeting of Holders of Securities of such series may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such series.

SECTION 1502. Call, Notice and Place of Meetings.

(i) The Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 1501, to be held at such time and at such place in The City of New York or in London as the Trustee shall determine. Notice of every meeting of Holders of Securities of any series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided for in Section 106, not less than 21 nor more than 180 days prior to the date fixed for the meeting.

(ii) In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding Securities of any series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in Section 1501, by written request setting forth in reasonable detail the action

 

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proposed to be taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place in The City of New York or in London for such meeting and may call such meeting for such purposes by giving notice thereof as provided in paragraph (i) of this Section.

SECTION 1503. Persons Entitled to Vote at Meetings.

To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall be (1) a Holder of one or more Outstanding Securities of such series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder of Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any series shall be the Person entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.

SECTION 1504. Quorum; Action.

The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders of Securities of such series; provided , however , that, if any action is to be taken at such meeting with respect to a consent or waiver which this Indenture expressly provides may be given by the Holders of not less than a specified percentage in principal amount of the Outstanding Securities of a series, the Persons entitled to vote such specified percentage in principal amount of the Outstanding Securities of such series shall constitute a quorum. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 1502(a), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of any adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the Outstanding Securities of such series which shall constitute a quorum.

Subject to the foregoing, at the reconvening of any meeting adjourned for lack of a quorum the Persons entitled to vote 25% in principal amount of the Outstanding Securities at the time shall constitute a quorum for the taking of any action set forth in the notice of the original meeting.

Except as limited by the proviso to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the affirmative vote of the Holders of not less than a majority in principal amount of the Outstanding Securities of such series; provided , however , that, except as limited by the proviso to Section 902, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides may be

 

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made, given or taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of not less than such specified percentage in principal amount of the Outstanding Securities of such series.

Any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders of Securities of such series and the related coupons, whether or not present or represented at the meeting.

Notwithstanding the foregoing provisions of this Section 1504, if any action is to be taken at a meeting of Holders of Securities of any series with respect to any request, demand, authorization, direction, notice, consent, waiver or other action that this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage in principal amount of all Outstanding Securities affected thereby, or of the Holders of such series and one or more additional series:

(i) there shall be no minimum quorum requirement for such meeting; and

(ii) the principal amount of the Outstanding Securities of such series that vote in favor of such request, demand, authorization, direction, notice, consent, waiver or other action shall be taken into account in determining whether such request, demand, authorization, direction, notice, consent, waiver or other action has been made, given or taken under this Indenture.

SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings.

(i) Notwithstanding any provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of a series in regard to proof of the holding of Securities of such series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as its shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 104 and the appointment of any proxy shall be proved in the manner specified in Section 104 or by having the signature of the person executing the proxy witnessed or guaranteed by any trust company, bank or banker authorized by Section 104 to certify to the holding of Bearer Securities. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 104 or other proof.

(ii) The Trustee shall, by an instrument in writing appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of

 

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Securities as provided in Section 1502(b), in which case the Company or the Holders of Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting.

(iii) At any meeting each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount of Outstanding Securities of such series held or represented by him (determined as specified in the definition of “Outstanding” in Section 101); provided , however , that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.

(iv) Any meeting of Holders of Securities of any series duly called pursuant to Section 1502 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting; and the meeting may be held as so adjourned without further notice.

SECTION 1506. Counting Votes and Recording Action of Meetings.

The vote upon any resolution submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the Secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 1502 and, if applicable, Section 1504. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.

This Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Indenture.

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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written.

 

PANCANADIAN PETROLEUM LIMITED
By:  

/s/ Michael A. Grandin

Name:   Michael A. Grandin
Title:   President
By:  

/s/ Laurie J. Schuller

Name:   Laurie J. Schuller
Title:   Corporate Secretary

Attest:


THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK,

as Trustee

By:  

/s/ Warren A. Goshing

Name:   Warren A. Goshing
Title:   Secretary

Attest:

 

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EXHIBIT A

FORMS OF CERTIFICATION

EXHIBIT A-1

FORM OF CERTIFICATE TO BE GIVEN BY

PERSON ENTITLED TO RECEIVE BEARER SECURITY

OR TO OBTAIN INTEREST PAYABLE PRIOR

TO THE EXCHANGE DATE

CERTIFICATE

PANCANADIAN PETROLEUM LIMITED

•% Notes due•

This is to certify that as of the date hereof, and except as set forth below, the above-captioned Securities held by you for our account (i) are owned by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States federal income taxation regardless of its source (“United States persons(s)”), (ii) are owned by United States person(s) that are (a) foreign branches of United States financial institutions (financial institutions, as defined in United States Treasury Regulations Section 2.165-12(c)(1)(v) are herein referred to as “financial institutions”) purchasing for their own account or for resale, or (b) United States person(s) who acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution hereby agrees, on its own behalf or through its agent, that you may advise PanCanadian Petroleum Limited or its agent that such financial institution will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are owned by United States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or foreign financial institution described in clause (iii) above (whether or not also described in clause (i) or (ii)), this is to further certify that such financial institution has not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.

As used herein, “United States” means the United States of America (including the states and the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands,

 

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with respect to any portion of the part submitted herewith for exchange (or, if relevant, collection of any interest) are no longer true and cannot be relied upon as of the date hereof.

We understand that this certification is required in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.

Dated:

 

[MORGAN GUARANTY TRUST COMPANY OF NEW YORK, BRUSSELS OFFICE, as Operator of the Euroclear System]

[CLEARSTREAM]

By  

 

 

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Exhibit 4.18

FIRST SUPPLEMENTAL INDENTURE

FIRST SUPPLEMENTAL INDENTURE (the “Supplemental Indenture”), dated as of January 1, 2002 by and among PanCanadian Energy Corporation, a corporation duly organized and existing under the laws of Canada (the “Amalgamated Company”), having its principal office at PanCanadian Plaza, 150-9 th Avenue S.W., Calgary, Alberta T2P 2S5, and The Bank of Nova Scotia Trust Company of New York, as trustee under the Indenture referred to below (the “Trustee”).

WHEREAS, PanCanadian Petroleum Limited (“PanCanadian”), a corporation duly organized under the laws of Canada, and the Trustee are parties to that certain indenture, dated as of November 5, 2001 (the “Indenture”), under which PanCanadian may issue from time to time unsecured debentures, notes or other evidences of indebtedness in an unlimited aggregate principal amount issuable in one or more series as provided therein and pursuant to which PanCanadian’s 6.3% Notes due 2011 and 7.2% Notes due 2031 (collectively, the “Securities”) were issued;

WHEREAS, Section 801(1) of the Indenture provides, in part, that PanCanadian may amalgamate with another corporation so long as the successor company shall assume by operation of law PanCanadian’s obligation for the due and punctual payment of the principal of (and premium, if any) and interest, if any, on all the Securities and the performance and observance of every covenant of the Indenture on the part of PanCanadian to be performed or observed;

WHEREAS, Section 901(1) of the Indenture provides that PanCanadian may enter into a supplemental indenture, among other things, to evidence the succession of another Person to PanCanadian and the assumption by any such successor of the covenants of PanCanadian contained in the Indenture and in the Securities;

WHEREAS, PanCanadian has amalgamated with PanCanadian Energy Corporation to form the Amalgamated Company, and the Amalgamated Company has assumed by operation of law PanCanadian’s obligation for the due and punctual payment of the principal of (and premium, if any) and interest, if any, on all the Securities and the performance and observance of every covenant of the Indenture on the part of PanCanadian to be performed or observed;

WHEREAS, the entry into this Supplemental Indenture by the parties hereto is in all respects authorized by the provisions of the Indenture, and all things necessary to make this Supplemental Indenture a valid agreement of the Amalgamated Company in accordance with its terms have been done.

The parties hereto agree as follows:

1. Definitions . All capitalized terms used and not otherwise defined herein have the respective meanings ascribed to such terms in the Indenture.


2. Effect . This Supplemental Indenture shall become effective upon its execution and delivery by the parties hereto.

3. Succession to Indenture . The Amalgamated Company hereby succeeds to and is substituted for, assumes all obligations and covenants of, and may exercise every right and power of PanCanadian under the Indenture and the Securities, with the same effect as if the Amalgamated Company had been a party to the Indenture. The Amalgamated Company agrees to comply with all applicable terms of the Indenture.

4. Responsibility of Trustee . The Trustee shall not be responsible for the validity as to the Amalgamated Company or sufficiency of this Supplemental Indenture or as to the due execution thereof by the Amalgamated Company or as to recitals of fact contained herein, all of which are made solely by the Amalgamated Company.

5. Governing Law . This Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York.

6. Counterparts . This First Supplemental Indenture may be executed in one or more counterparts, each of which shall be an original, but all of which together shall constitute one and the same document.

7. E ffect on Indenture . This Supplemental Indenture shall form a part of the Indenture for all purposes and every holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby. Except as expressly set forth herein, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.

IN WITNESS WHEREOF, the parties have executed this Supplemental Indenture as of the date first written above.

 

PanCanadian Energy Corporation
By:  

/s/ Wesley R. Twiss

Name:   Wesley R. Twiss
Title:   Vice President & Chief Financial Officer
By:  

/s/ Robert A. Pearce

Name:   Robert A. Pearce
Title:   General Manager & Treasurer


The Bank of Nova Scotia Trust Company of New York
By:  

/s/ George E. Timmes

Name:   George E. Timmes
Title:   Vice President

Exhibit 4.19

SECOND SUPPLEMENTAL INDENTURE

SECOND SUPPLEMENTAL INDENTURE (the “Supplemental Indenture”), dated as of January 1, 2003 by and among EnCana Corporation, a corporation duly organized and existing under the laws of Canada (the “Amalgamated Company”), having its principal office at 1800, 855 2 nd Street S.W., Calgary, Alberta T2P 2S5, and The Bank of Nova Scotia Trust Company of New York, as trustee under the Indenture referred to below (the “Trustee”).

WHEREAS, PanCanadian Petroleum Limited (“PanCanadian”) and the Trustee entered into an indenture, dated as of November 5, 2001 (the “Indenture”), under which PanCanadian may issue from time to time unsecured debentures, notes or other evidences of indebtedness in an unlimited aggregate principal amount issuable in one or more series as provided therein and pursuant to which PanCanadian’s 6.3% Notes due 2011 and 7.2% Notes due 2031 (collectively, the “Securities”) were issued;

WHEREAS, PanCanadian Energy Corporation assumed the obligations of PanCanadian under the Indenture pursuant to the First Supplemental Indenture, dated as of January 1, 2002, by and between PanCanadian Energy Corporation and the Trustee;

WHEREAS, PanCanadian Energy Corporation completed a transaction with Alberta Energy Company Ltd. (“AEC”) under which PanCanadian Energy Corporation indirectly acquired all of the outstanding common shares of AEC and changed its name from PanCanadian Energy Corporation to EnCana Corporation (“EnCana”);

WHEREAS, Section 801(1) of the Indenture provides, in part, that EnCana may amalgamate with another corporation so long as the successor company shall expressly assume by supplemental indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, or shall assume by operation of law, EnCana’s obligations under the Securities and the Indenture;

WHEREAS, effective January 1, 2003, EnCana has amalgamated with AEC and EnCana Midstream Limited, each a wholly-owned subsidiary of EnCana, to form the Amalgamated Company, and the Amalgamated Company has assumed by operation of law EnCana’s obligation for the due and punctual payment of the principal of (and premium, if any) and interest, if any, on all the Securities and the performance and observance of every covenant of this Indenture on the part of EnCana to be performed or observed;

WHEREAS, Section 901(1) of the Indenture provides for the entering into of a supplemental indenture to evidence, among other things, the succession of another Person to EnCana and the assumption by any such successor of the covenants of EnCana contained in the Indenture and in the Securities;


WHEREAS, the entry into this Supplemental Indenture by the parties hereto is in all respects authorized by the provisions of the Indenture, and all things necessary to make this Supplemental Indenture a valid agreement of the Amalgamated Company in accordance with its terms have been done.

The parties hereto agree as follows:

1. Definitions . All capitalized terms used and not otherwise defined herein have the respective meanings ascribed to such terms in the Indenture.

2. Effect . This Supplemental Indenture shall become effective upon its execution and delivery by the parties hereto.

3. Succession to Indenture . The Amalgamated Company hereby succeeds to and is substituted for EnCana under the Indenture and the Securities, with the same effect as if the Amalgamated Company had been a party to the Indenture. The Amalgamated Company agrees to comply with all applicable terms of the Indenture.

4. Assumption of Obligations and Covenants . The Amalgamated Company hereby assumes all obligations for the due and punctual payment of the principal of (and premium, if any) and interest, if any, on all the Securities and the performance and observance of every covenant of this Indenture on the part of EnCana to be performed or observed, and may exercise every right and power of EnCana under the Indenture and the Securities.

5. Responsibility of Trustee . The Trustee shall not be responsible for the validity as to the Amalgamated Company or sufficiency of this Supplemental Indenture or as to the due execution thereof by the Amalgamated Company or as to recitals of fact contained herein, all of which are made solely by the Amalgamated Company.

6. Governing Law . This Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York.

7. Counterparts . This Supplemental Indenture may be executed in one or more counterparts, each of which shall be an original, but all of which together shall constitute one and the same document.

8. Effect on Indenture . This Supplemental Indenture shall form a part of the Indenture for all purposes and every holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby. Except as expressly set forth herein, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.

 

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IN WITNESS WHEREOF, the parties have executed this Supplemental Indenture as of the date first above written.

 

EnCana Corporation
By:  

/s/ Thomas G. Hinton

Name:   Thomas G. Hinton
Title:   Treasurer
By:  

/s/ Kerry D. Dyte

Name:   Kerry D. Dyte
Title:   Corporate Secretary

 

The Bank of Nova Scotia Trust Company of New York, as Trustee
By:  

/s/ Vanessa Mack

Name:   Vanessa Mack
Title:   Assistant Vice President

 

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Exhibit 4.20

THIRD SUPPLEMENTAL INDENTURE

THIRD SUPPLEMENTAL INDENTURE (the “Supplemental Indenture”), dated as of November 20, 2012 by and among Encana Corporation, a corporation duly organized and existing under the laws of Canada (the “Corporation”), having its principal office at 1800, 855 2 nd Street S.W., Calgary, Alberta T2P 2S5, and The Bank of Nova Scotia Trust Company of New York, as trustee under the Indenture referred to below (the “Trustee”).

WHEREAS, the Corporation (as successor by amalgamation to PanCanadian Petroleum Limited) and the Trustee are parties to that certain indenture, dated as of November 5, 2001 (as amended by the First Supplemental Indenture dated as of January 1, 2002, and as amended by the Second Supplemental Indenture dated as of January 1, 2003, the “Indenture”), under which the Corporation may issue from time to time unsecured debentures, notes or other evidences of indebtedness in an unlimited aggregate principal amount issuable in one or more series as provided therein and pursuant to which the Corporation’s 7.2% Notes due 2031 (the “Securities”) were issued;

WHEREAS, Section 901(9) of the Indenture provides that without the consent of any Holders, the Corporation, when authorized by or pursuant to a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental thereto, in form satisfactory to the Trustee, to cure any ambiguity, or to correct or supplement any provision therein which may be inconsistent with any other provision therein, provided such action shall not adversely affect the interests of the Holders of Securities and any related coupons in any material respect;

WHEREAS, Section 902 of the Indenture provides that with the consent of the Holders of not less than a majority in principal amount of all Outstanding Securities, the Corporation, when authorized by or pursuant to a Board Resolution, and the Trustee may enter into indentures supplemental thereto for the purpose of changing in any manner or eliminating any of the provisions of the Indenture or modifying in any manner the rights of the Holders of the Securities under the Indenture;

WHEREAS, the Corporation issued a Consent Solicitation Statement dated as of November 5, 2012 (the “Consent Solicitation Statement”) to, among other things, solicit consents from the Holders to certain amendments to the Indenture as set forth in the Consent Solicitation Statement;

WHEREAS, the Holders of not less than a majority in principal amount of the Outstanding Securities have given and not withdrawn their written consent to the amendment to the Indenture contemplated by Section 2(b) of this Supplemental Indenture; and

WHEREAS, the entry into of this Supplemental Indenture by the parties hereto is in all respects authorized by the provisions of the Indenture, and all things necessary to make this Supplemental Indenture a valid agreement of the Corporation and the Trustee in accordance with its terms have been done.


NOW, THEREFORE, for and in consideration of the premises contained herein, it is mutually covenanted and agreed for the benefit of all Holders of the Securities as follows:

1. Definitions . All capitalized terms used and not otherwise defined herein have the respective meanings ascribed to such terms in the Indenture.

2. Amendments .

 

  (a) Section 101(3) is hereby amended and restated in its entirety to read as follows:

“all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” means GAAP; and”

 

  (b) The definition of “GAAP” in Section 101 is hereby amended and restated in its entirety to read as follows:

“GAAP” means generally accepted accounting principles in Canada which are in effect from time to time, unless the Person’s most recent audited or quarterly financial statements are not prepared in accordance with generally accepted accounting principles in Canada, in which case “generally accepted accounting principles” shall mean generally accepted accounting principles in the United States in effect from time to time.

3. Effect . This Supplemental Indenture shall become effective upon its execution and delivery by the parties hereto.

4. Responsibility of Trustee . The Trustee shall not be responsible for the validity as to the Corporation or sufficiency of this Supplemental Indenture or as to the due execution hereof by the Corporation or as to recitals of fact contained herein, all of which are made solely by the Corporation.

5. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

6. Counterparts . This Supplemental Indenture may be executed in one or more counterparts, each of which shall be an original, but all of which together shall constitute one and the same document.

 

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7. Effect on Indenture . This Supplemental Indenture shall form a part of the Indenture for all purposes and every holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby. Except as expressly set forth herein, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.

[ Remainder of page intentionally left blank .]

 

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IN WITNESS WHEREOF, the parties have executed this Supplemental Indenture as of the date first above written.

 

Encana Corporation
By:   /s/ Corey D. Code
Name:   Corey D. Code
Title:  

Vice-President, Portfolio

Management & Assistant Treasurer

 

The Bank of Nova Scotia Trust Company of New York, as Trustee
By:   /s/ Warren A. Goshine
Name:   Warren A. Goshine
Title:   Vice President

[ Signature page to Third Supplemental Indenture to 2001 Indenture. ]

Exhibit 4.21

FOURTH SUPPLEMENTAL INDENTURE

FOURTH SUPPLEMENTAL INDENTURE (the “Supplemental Indenture”), dated as of July 24, 2013, by and among Encana Corporation, a corporation duly organized and existing under the laws of Canada (the “Corporation”), having its principal office at Suite 4400, 500 Centre Street S.E., P.O. Box 2850, Calgary, Alberta T2P 2S5, and The Bank of New York Mellon, as successor trustee under the Indenture referred to below (the “Trustee”).

WHEREAS, the Corporation (as successor by amalgamation to PanCanadian Petroleum Limited) and The Bank of Nova Scotia Trust Company of New York, as retiring trustee under the Indenture referred to below (the “Retiring Trustee”) are parties to that certain indenture, dated as of November 5, 2001 (as amended by the First Supplemental Indenture dated as of January 1, 2002, as amended by the Second Supplemental Indenture dated as of January 1, 2003, and as amended by the Third Supplemental Indenture dated as of November 20, 2012, the “Indenture”), under which the Corporation may issue from time to time unsecured debentures, notes or other evidences of indebtedness in an unlimited aggregate principal amount issuable in one or more series as provided therein and pursuant to which the Corporation’s 7.2% Notes due 2031 (the “Securities”) were issued;

WHEREAS, the Retiring Trustee has provided notice to the Corporation dated as of June 19, 2013 of its resignation as trustee under the Indenture with respect to the Securities;

WHEREAS, the Corporation, the Retiring Trustee and the Trustee have entered into an Agreement of Resignation, Appointment and Acceptance, dated as of July 24, 2013, whereby, among other things, (i) the Corporation has appointed the Trustee as successor Trustee under the Indenture and as successor to the Retiring Trustee in any other capacity in which the Retiring Trustee acts pursuant to the Indenture, (ii) the Retiring Trustee has assigned, transferred, delivered and conferred to the Trustee all of its rights, title and interest under the Indenture and (iii) the Trustee has accepted its appointment as successor Trustee and as successor to the Retiring Trustee in such other capacity in which the Retiring Trustee acts pursuant to the Indenture;

WHEREAS, Section 901(9) of the Indenture provides that without the consent of any Holders, the Corporation, when authorized by or pursuant to a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental thereto, in form satisfactory to the Trustee, to close the Indenture with respect to the authentication and delivery of additional series of Securities, to cure any ambiguity, to correct or supplement any provision in the Indenture which may be inconsistent with any other provision in the Indenture, or to make any other provisions with respect to matters or questions arising under the Indenture; provided such action shall not adversely affect the interests of the Holders of Securities of any series and any related coupons in any material respect;


WHEREAS, the entering into of this Supplemental Indenture by the parties hereto is in all respects authorized by the provisions of the Indenture, and all things necessary to make this Supplemental Indenture a valid agreement of the Corporation and the Trustee in accordance with its terms have been done.

NOW, THEREFORE, for and in consideration of the premises contained herein, it is mutually covenanted and agreed for the benefit of all Holders of the Securities as follows:

1. Definitions . All capitalized terms used and not otherwise defined herein have the respective meanings ascribed to such terms in the Indenture.

2. Amendments .

 

  (a) The definition of “Corporate Trust Office” in Section 101 is hereby amended and restated in its entirety to read as follows:

“Corporate Trust Office” means the principal corporate trust office of the Trustee, at which at any particular time its corporate trust business shall be administered, which office on the date of execution of this Indenture is located at 101 Barclay Street, Floor 4 East, New York, New York 10286, except that with respect to presentation of Securities for payment or for registration of transfer or exchange, such term shall mean the office or agency of the Trustee at which, at any particular time, its corporate agency business shall be conducted.

 

  (b) Section 105(1) is hereby amended and restated in its entirety to read as follows:

“(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: International Corporate Trust, or”

 

  (c) Section 202 is hereby amended and restated in its entirety to read as follows:

“Subject to Section 611, the Trustee’s certificate of authentication shall be in substantially the following form:

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

Dated:                         

This is one of the Securities of the series designated therein referred to in, and issued under, the within-mentioned Indenture.

 

THE BANK OF NEW YORK MELLON, as Trustee

 

2


By

 

 

Authorized Signatory”

 

  (d) The final paragraph of Section 611 is hereby amended and restated in its entirety to read as follows:

“If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:

Dated:                     

This is one of the Securities of a series referred to in, and issued under, the within-mentioned Indenture.

 

THE BANK OF NEW YORK MELLON, as Trustee

By

 

 

as Authenticating Agent

By

 

 

Authorized Signatory”

3. Effect . This Supplemental Indenture shall become effective upon its execution and delivery by the parties hereto.

4. Responsibility of Trustee . The Trustee shall not be responsible for the validity as to the Corporation or sufficiency of this Supplemental Indenture or as to the due execution hereof by the Corporation or as to recitals of fact contained herein, all of which are made solely by the Corporation.

5.  Governing Law . This Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York.

6. Counterparts . This Supplemental Indenture may be executed in one or more counterparts, each of which shall be an original, but all of which together shall constitute one and the same document.

7. Effect on Indenture . This Supplemental Indenture shall form a part of the Indenture for all purposes and every holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby. Except as expressly set forth herein, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.

[ Remainder of page intentionally left blank .]

 

3


IN WITNESS WHEREOF, the parties have executed this Supplemental Indenture as of the date first above written.

 

Encana Corporation
By:   /s/ Sherri A. Brillon
Name:   Sherri A. Brillon
Title:  

Executive Vice-President &

Chief Financial Officer

 

By:

  /s/ Gerald T. Ince

Name:

 

Gerald T. Ince

Title:

 

Vice-President & Treasurer

 

The Bank of New York Mellon, as Trustee
By:  

/s/ Catherine F. Donohue

Name:   CATHERINE F. DONOHUE
Title:   VICE PRESIDENT
 

[ Signature page to Fourth Supplemental Indenture to 2001 Indenture .]

Exhibit 4.22

 

 

ENCANA CORPORATION,

as Issuer

and

THE BANK OF NEW YORK,

as Trustee

 

 

INDENTURE

Dated as of October 2, 2003

Providing for the issue of

Debt Securities

in unlimited principal amount

 

 

 

 


ENCANA CORPORATION

Reconciliation and tie between Trust Indenture Act

of 1939 and Indenture, dated as of October 2, 2003

 

Trust Indenture

Act Section

       Indenture Section

§ 310(a)(1)

     608(a)

        (a)(2)

     608(a)

        (b)

     609, 610

§ 312(c)

     703

§ 314(a)

     703

        (a)(4)

     1004

        (c)(1)

     102

        (c)(2)

     102

        (e)

     102

§ 315(b)

     601

§ 316(a)(last Sentence)

     101 (“Outstanding”)

        (a)(1)(A)

     502, 512

        (a)(1)(B)

     513

        (b)

     508

        (c)

     104(e)

§ 317(a)(1)

     503

        (a)(2)

     504

        (b)

     1003

§ 318(a)

     111

 

Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.


[Page must remain for formatting purposes]


TABLE OF CONTENTS

 

     Page  

PARTIES

     1   

RECITALS OF THE COMPANY

     1   

ARTICLE ONE

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

  

  

SECTION 101.

  Definitions      1   
 

“Accelerated Indebtedness”

     2   
 

“Act”

     2   
 

“Additional Amounts”

     2   
 

“Affiliate”

     2   
 

“Authenticating Agent”

     2   
 

“Authorized Newspaper”

     2   
 

“Bearer Security”

     2   
 

“Board of Directors”

     2   
 

“Board Resolution”

     2   
 

“Business Day”

     2   
 

“calculation period”

     3   
 

“Canadian Taxes”

     3   
 

“Clearstream”

     3   
 

“Commission”

     3   
 

“Common Depositary”

     3   
 

“Company”

     3   
 

“Company Officer”

     3   
 

“Company Request” or “Company Order”

     3   
 

“Consolidated Net Tangible Assets”

     3   
 

“Conversion Date”

     3   
 

“Conversion Event”

     4   
 

“Corporate Trust Office”

     4   
 

“corporation”

     4   
 

“coupon”

     4   
 

“covenant defeasance”

     4   
 

“Currency”

     4   
 

“Current Assets”

     4   
 

“Default”

     4   

 

Note: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture.


  “Defaulted Interest”      4   
  “defeasance”      4   
  “Depositary” or “Depositary of Securities”      4   
  “Dollar” or “$”      4   
  “Dollar Equivalent of the Foreign Currency”      4   
  “Election Date”      4   
  “Euroclear”      4   
  “Event of Default”      4   
  “Exchange Act”      5   
  “Exchange Date”      5   
  “Exchange Rate Agent”      5   
  “Exchange Rate Officer’s Certificate”      5   
  “Excluded Holder”      5   
  “Extension Notice”      5   
  “Extension Period”      5   
  “Facilities”      5   
  “Final Maturity”      5   
  “Financial Instrument Obligations”      5   
  “First Currency”      6   
  “Foreign Currency”      6   
  “GAAP”      6   
  “Government Obligations”      6   
  “Holder”      6   
  “Indenture”      6   
  “Indexed Security”      7   
  “interest”      7   
  “Interest Payment Date”      7   
  “Judgment Currency”      7   
  “Lien”      7   
  “Market Exchange Rate”      7   
  “Maturity”      8   
  “Non-Recourse Debt”      8   
  “Notice of Default”      8   
  “Officer’s Certificate”      8   
  “Opinion of Counsel”      8   
  “Optional Reset Date”      8   
  “Original Issue Discount Security”      8   
  “Other Currency”      8   
  “Outstanding”      8   
  “Paying Agent”      9   
  “Permitted Liens”      10   
  “Person”      12   
  “Place of Payment”      12   
  “Predecessor Security”      12   
  “Purchase Money Mortgage”      12   
  “Redemption Date”      12   
  “Redemption Price”      12   
  “Registered Security”      12   

 

ii


 

“Regular Record Date”

     12   
 

“Repayment Date”

     12   
 

“Repayment Price”

     13   
 

“Required Currency”

     13   
 

“Reset Notice”

     13   
 

“Responsible Officer”

     13   
 

“Restricted Property”

     13   
 

“Restricted Securities”

     13   
 

“Restricted Subsidiary”

     13   
 

“Securities”

     13   
 

“Security Register” and “Security Registrar”

     13   
 

“Shareholders’ Equity”

     13   
 

“Special Record Date”

     14   
 

“Stated Maturity”

     14   
 

“Subsequent Interest Period”

     14   
 

“Subsidiary”

     14   
 

“Substantial Completion”

     14   
 

“Trust Indenture Act” or “TIA”

     14   
 

“Trustee”

     14   
 

“UCC”

     14   
 

“United States”

     14   
 

“United States person”

     14   
 

“Unrestricted Subsidiary”

     14   
 

“Valuation Date”

     15   
 

“Vice-President”

     15   
 

“Voting Shares”

     15   
 

“Yield to Maturity”

     15   

SECTION 102.

 

Compliance Certificates and Opinions

     15   

SECTION 103.

 

Form of Documents Delivered to Trustee

     16   

SECTION 104.

 

Acts of Holders

     16   

SECTION 105.

 

Notices, etc. to Trustee and Company

     18   

SECTION 106.

 

Notice to Holders; Waiver

     18   

SECTION 107.

 

Effect of Headings and Table of Contents

     19   

SECTION 108.

 

Successors and Assigns

     19   

SECTION 109.

 

Separability Clause

     19   

SECTION 110.

 

Benefits of Indenture

     20   

SECTION 111.

 

Governing Law

     20   

SECTION 112.

 

Legal Holidays

     20   

SECTION 113.

 

Agent for Service; Submission to Jurisdiction; Waiver of Immunities

     20   

SECTION 114.

 

Conversion of Currency

     21   

SECTION 115.

 

Currency Equivalent

     22   

SECTION 116.

 

Incorporators, Shareholders, Officers and Directors of the Company Exempt from Individual Liability

     22   

SECTION 117.

 

Conflict with the Trust Indenture Act

     23   

 

iii


ARTICLE TWO   
SECURITIES FORMS   

SECTION 201.

 

Forms Generally

     23   

SECTION 202.

 

Form of Trustee’s Certificate of Authentication

     23   

SECTION 203.

 

Securities Issuable in Global Form

     24   
ARTICLE THREE   
THE SECURITIES   

SECTION 301.

 

Amount Unlimited; Issuable in Series

     25   

SECTION 302.

 

Denominations

     29   

SECTION 303.

 

Execution, Authentication, Delivery and Dating

     29   

SECTION 304.

 

Temporary Securities

     31   

SECTION 305.

 

Registration, Registration of Transfer and Exchange

     33   

SECTION 306.

 

Mutilated, Destroyed, Lost and Stolen Securities

     37   

SECTION 307.

 

Payment of Principal and Interest; Interest Rights Preserved; Optional Interest Reset

     38   

SECTION 308.

 

Optional Extension of Stated Maturity

     41   

SECTION 309.

 

Persons Deemed Owners

     41   

SECTION 310.

 

Cancellation

     42   

SECTION 311.

 

Computation of Interest

     43   

SECTION 312.

 

Currency and Manner of Payments in Respect of Securities

     43   

SECTION 313.

 

Appointment and Resignation of Successor Exchange Rate Agent

     45   
ARTICLE FOUR   
SATISFACTION AND DISCHARGE   

SECTION 401.

 

Satisfaction and Discharge of Indenture

     46   

SECTION 402.

 

Application of Trust Money

     47   
ARTICLE FIVE   
REMEDIES   

SECTION 501.

 

Events of Default

     47   

SECTION 502.

 

Acceleration of Maturity; Rescission and Annulment

     49   

SECTION 503.

 

Collection of Indebtedness and Suits for Enforcement by Trustee

     50   

SECTION 504.

 

Trustee May File Proofs of Claim

     51   

SECTION 505.

 

Trustee May Enforce Claims Without Possession of Securities

     52   

SECTION 506.

 

Application of Money Collected

     52   

SECTION 507.

 

Limitation on Suits

     52   

SECTION 508.

 

Unconditional Right of Holders to Receive Principal (Premium, if any)and Interest

     53   

SECTION 509.

 

Restoration of Rights and Remedies

     53   

SECTION 510.

 

Rights and Remedies Cumulative

     54   

SECTION 511.

 

Delay or Omission Not Waiver

     54   

 

iv


SECTION 512.

 

Control by Holders

     54   

SECTION 513.

 

Waiver of Past Defaults

     54   

SECTION 514.

 

Waiver of Stay or Extension Laws

     55   

SECTION 515.

 

Undertaking for Costs

     55   
ARTICLE SIX   
THE TRUSTEE   

SECTION 601.

 

Notice of Defaults

     55   

SECTION 602.

 

Certain Duties and Responsibilities of Trustee

     56   

SECTION 603.

 

Certain Rights of Trustee

     57   

SECTION 604.

 

Trustee Not Responsible for Recitals or Issuance of Securities

     58   

SECTION 605.

 

May Hold Securities

     58   

SECTION 606.

 

Money Held in Trust

     59   

SECTION 607.

 

Compensation and Reimbursement

     59   

SECTION 608.

 

Corporate Trustee Required; Eligibility

     59   

SECTION 609.

 

Resignation and Removal; Appointment of Successor

     60   

SECTION 610.

 

Acceptance of Appointment by Successor

     61   

SECTION 611.

 

Merger, Conversion, Consolidation or Succession to Business

     62   

SECTION 612.

 

Authorization of Authenticating Agent

     63   
ARTICLE SEVEN   
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY   

SECTION 701.

 

Company to Furnish Trustee Names and Addresses of Holders

     64   

SECTION 702.

 

Preservation of List of Names and Addresses of Holders

     65   

SECTION 703.

 

Disclosure of Names and Addresses of Holders

     65   

SECTION 704.

 

Reports by Trustee

     65   

SECTION 705.

 

Reports by the Company

     65   
ARTICLE EIGHT   
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE   

SECTION 801.

 

Company May Consolidate, etc., Only on Certain Terms

     66   

SECTION 802.

 

Successor Person Substituted

     67   

SECTION 803.

 

Securities to Be Secured in Certain Events

     68   
ARTICLE NINE   
SUPPLEMENTAL INDENTURES   

SECTION 901.

 

Supplemental Indentures Without Consent of Holders

     68   

SECTION 902.

 

Supplemental Indentures with Consent of Holders

     69   

SECTION 903.

 

Execution of Supplemental Indentures

     71   

SECTION 904.

 

Effect of Supplemental Indentures

     71   

SECTION 905.

 

Conformity with the Trust Indenture Act

     71   

 

v


SECTION 906.

 

Reference in Securities to Supplemental Indentures

     71   

SECTION 907.

 

Notice of Supplemental Indentures

     71   
ARTICLE TEN   
COVENANTS   

SECTION 1001.

 

Payment of Principal (Premium, if any) and Interest

     71   

SECTION 1002.

 

Maintenance of Office or Agency

     72   

SECTION 1003.

 

Money for Securities Payments to Be Held in Trust

     73   

SECTION 1004.

 

Statement as to Compliance

     74   

SECTION 1005.

 

Additional Amounts

     75   

SECTION 1006.

 

Limitation on Liens

     76   

SECTION 1007.

 

Payment of Taxes

     77   

SECTION 1008.

 

Corporate Existence

     77   

SECTION 1009.

 

Waiver of Certain Covenants

     77   
ARTICLE ELEVEN   
REDEMPTION OF SECURITIES   

SECTION 1101.

 

Applicability of Article

     78   

SECTION 1102.

 

Election to Redeem; Notice to Trustee

     78   

SECTION 1103.

 

Selection by Trustee of Securities to Be Redeemed

     78   

SECTION 1104.

 

Notice of Redemption

     78   

SECTION 1105.

 

Deposit of Redemption Price

     80   

SECTION 1106.

 

Securities Payable on Redemption Date

     80   

SECTION 1107.

 

Securities Redeemed in Part

     81   

SECTION 1108.

 

Tax Redemption

     81   
ARTICLE TWELVE   
SINKING FUNDS   

SECTION 1201.

 

Applicability of Article

     82   

SECTION 1202.

 

Satisfaction of Sinking Fund Payments with Securities

     82   

SECTION 1203.

 

Redemption of Securities for Sinking Fund

     82   
ARTICLE THIRTEEN   
REPAYMENT AT OPTION OF HOLDERS   

SECTION 1301.

 

Applicability of Article

     83   

SECTION 1302.

 

Repayment of Securities

     84   

SECTION 1303.

 

Exercise of Option

     84   

SECTION 1304.

 

When Securities Presented for Repayment Become Due and Payable

     84   

SECTION 1305.

 

Securities Repaid in Part

     85   

 

vi


ARTICLE FOURTEEN   
DEFEASANCE AND COVENANT DEFEASANCE   

SECTION 1401.

 

Company’s Option to Effect Defeasance or Covenant Defeasance

     86   

SECTION 1402.

 

Defeasance and Discharge

     86   

SECTION 1403.

 

Covenant Defeasance

     86   

SECTION 1404.

 

Conditions to Defeasance or Covenant Defeasance

     87   

SECTION 1405.

 

Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions

     89   

SECTION 1406.

 

Reinstatement

     90   
ARTICLE FIFTEEN   
MEETINGS OF HOLDERS OF SECURITIES   

SECTION 1501.

 

Purposes for Which Meetings May Be Called

     90   

SECTION 1502.

 

Call, Notice and Place of Meetings

     90   

SECTION 1503.

 

Persons Entitled to Vote at Meetings

     91   

SECTION 1504.

 

Quorum; Action

     91   

SECTION 1505.

 

Determination of Voting Rights; Conduct and Adjournment of Meetings

     92   

SECTION 1506.

 

Counting Votes and Recording Action of Meetings

     93   

SECTION 1507.

 

Counterparts

     93   

TESTIMONIUM

       94   

SIGNATURES

       94   

FORMS OF CERTIFICATION

     EXHIBIT A   

 

vii


INDENTURE, dated as of October 2, 2003 between ENCANA CORPORATION, a corporation duly organized and existing under the laws of Canada (herein called the “ Company ”), having its principal office at 1800, 855 – 2 nd Street S.W., P.O. Box 2850, Calgary, Alberta T2P 2S5, and THE BANK OF NEW YORK, a New York Corporation, as trustee (herein called the “ Trustee ”).

RECITALS OF THE COMPANY

The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness (herein called the “ Securities ”), which may be convertible into or exchangeable for any securities of any Person (including the Company), to be issued in one or more series as provided in this Indenture.

This Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, that are required to be part of this Indenture and shall, to the extent applicable, be governed by such provisions.

All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

For and in consideration of the premises and the purchase of the Securities by the Holders (as defined below) thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows:

ARTICLE ONE

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

SECTION 101. Definitions.

For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;

(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;

(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP;

(4) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;


(5) words implying any gender shall include all genders; and

(6) the words Subsection, Section and Article refer to the Subsections, Sections and Articles, respectively, of this Indenture unless otherwise noted.

Certain terms, used principally in Article Three, are defined in that Article.

“Accelerated Indebtedness” has the meaning specified in Section 501.

“Act” when used with respect to any Holder, has the meaning specified in Section 104.

“Additional Amounts” has the meaning specified in Section 1005.

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“Authenticating Agent” means any Person authorized by the Trustee to act on behalf of the Trustee pursuant to Section 612 to authenticate Securities.

“Authorized Newspaper” means a newspaper (which in the case of Canada, will, if practicable, be The Globe & Mail, in the case of New York, New York will, if practicable, be The Wall Street Journal (Eastern Edition), in the case of the United Kingdom will, if practicable, be The Financial Times (London Edition) and, in the case of Luxembourg, will, if practicable, be The Luxembourg (Wort), in the English language or in an official language of the country of publication, customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in Canada, New York, New York, the United Kingdom or Luxembourg, as applicable. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on any Business Day.

“Bearer Security” means any Security except a Registered Security.

“Board of Directors” means either the board of directors of the Company or any duly authorized committee of that board of directors.

“Board Resolution” means a copy of a resolution certified by the Corporate Secretary or any Assistant Corporate Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

“Business Day” when used with respect to any Place of Payment or any other particular location referred to in this Indenture or in the Securities, means, unless otherwise specified with respect to any Securities pursuant to Section 301, any day other than Saturday,

 

2


Sunday or any other day which is not a day on which commercial banking institutions in that Place of Payment or other location are closed or required by any applicable law or regulation or executive order to close.

“calculation period” has the meaning specified in Section 311.

“Canadian Taxes” has the meaning specified in Section 1005.

“Clearstream” means Clearstream Banking, societe anonyme, or its successor.

“Commission” means the U.S. Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

“Common Depositary” has the meaning specified in Section 304.

“Company” means the Person named as the “Company” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.

“Company Officer” means any one of the Chairman, President, Chief Executive Officer, Chief Financial Officer, Vice-President, Treasurer, Assistant Treasurer, Corporate Secretary or Assistant Corporate Secretary of the Company.

Company Request” or “Company Order” means a written request or order signed in the name of the Company by a Company Officer and delivered to the Trustee.

“Consolidated Net Tangible Assets” means the total amount of assets of any Person on a consolidated basis (less applicable reserves and other properly deductible items) after deducting therefrom:

 

  (i) all current liabilities (excluding any indebtedness classified as a current liability and any current liabilities which are by their terms extendible or renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed);

 

  (ii) all goodwill, trade names, trademarks, patents, unamortized debt discounts and expenses and other like intangibles; and

 

  (iii) appropriate adjustments on account of minority interests of other persons holding shares of the Subsidiaries of such Person,

in each case, as shown on the most recent annual audited or quarterly unaudited consolidated balance sheet of such Person computed in accordance with GAAP.

“Conversion Date” has the meaning specified in Section 312(d).

 

3


“Conversion Event” means the cessation of use of a Foreign Currency both by the government of the country which issued such Currency and by a central bank or other public institution of or within the international banking community for the settlement of transactions.

“Corporate Trust Office” means the principal office of the Trustee, at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 101 Barclay Street, 21 st Floor West, New York, New York 10286, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).

“corporation” includes corporations, associations, companies and business trusts.

“coupon” means any interest coupon appertaining to a Bearer Security.

“covenant defeasance” has the meaning specified in Section 1403.

“Currency” means any currency or currencies or composite currency issued by the government of one or more countries or by any recognized confederation or association of such governments.

“Current Assets” means assets which in the ordinary course of business are expected to be realized in cash or sold or consumed within 12 months.

“Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.

“Defaulted Interest” has the meaning specified in Section 307.

“defeasance” has the meaning specified in Section 1402.

“Depositary” or “Depositary of Securities” means The Depository Trust Company, or any successor thereto or any other Person designated pursuant to Section 301.

“Dollar” or “$” means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time shall be legal tender for the payment of public and private debts.

“Dollar Equivalent of the Foreign Currency” has the meaning specified in Section 312(f).

“Election Date” has the meaning specified in Section 312(g).

“Euroclear” means Euroclear Bank S.A./N.A., or its successor as operator of the Euroclear System.

“Event of Default” has the meaning specified in Section 501.

 

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“Exchange Act” means the United States Securities Exchange Act of 1934, as amended.

“Exchange Date” has the meaning specified in Section 304.

“Exchange Rate Agent” means, with respect to Securities of or within any series, unless otherwise specified with respect to any Securities pursuant to Section 301, a New York clearing house bank, designated pursuant to Section 301 or Section 313.

“Exchange Rate Officer’s Certificate” means a tested telex or a certificate setting forth (i) the applicable Market Exchange Rate and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if any) and interest, if any (on an aggregate basis and on the basis of a Security having the lowest denomination principal amount determined in accordance with Section 302 in the relevant Currency), payable with respect to a Security of any series on the basis of such Market Exchange Rate, sent (in the case of a telex) or signed (in the case of a certificate) by the Treasurer, any Vice-President or any Assistant Treasurer of the Company.

“Excluded Holder” has the meaning specified in Section 1005.

“Extension Notice” has the meaning specified in Section 308.

“Extension Period” has the meaning specified in Section 308.

“Facilities” means any drilling equipment, production equipment and platforms or mining equipment; pipelines, pumping stations and other pipeline facilities; terminals, warehouses and storage facilities; bulk plants; production, separation, dehydration, extraction, treating and processing facilities; gasification or natural gas liquefying facilities, flares, stacks and burning towers; floatation mills, crushers and ore handling facilities; tank cars, tankers, barges, ships, trucks, automobiles, airplanes and other marine, automotive, aeronautical and other similar moveable facilities or equipment; computer systems and associated programs or office equipment; roads, airports, docks (including drydocks); reservoirs and waste disposal facilities; sewers; generating plants (including power plants) and electric lines; telephone and telegraph lines, radio and other communications facilities; townsites, housing facilities, recreation halls, stores and other related facilities; and similar facilities and equipment of or associated with any of the foregoing.

“Final Maturity” has the meaning specified in Section 308.

“Financial Instrument Obligations” means obligations arising under:

 

  (i) interest rate swap agreements, forward rate agreements, floor, cap or collar agreements, futures or options, insurance or other similar agreements or arrangements, or any combination thereof, entered into by a Person relating to interest rates or pursuant to which the price, value or amount payable thereunder is dependent or based upon interest rates in effect from time to time or fluctuations in interest rates occurring from time to time;

 

  (ii)

currency swap agreements, cross-currency agreements, forward agreements, floor, cap or collar agreements, futures or options, insurance

 

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  or other similar agreements or arrangements, or any combination thereof, entered into by a Person relating to currency exchange rates or pursuant to which the price, value or amount payable thereunder is dependent or based upon currency exchange rates in effect from time to time or fluctuations in currency exchange rates occurring from time to time; and

 

  (iii) commodity swap or hedging agreements, floor, cap or collar agreements, commodity futures or options or other similar agreements or arrangements, or any combination thereof, entered into by a Person relating to one or more commodities or pursuant to which the price, value or amount payable thereunder is dependent or based upon the price of one or more commodities in effect from time to time or fluctuations in the price of one or more commodities occurring from time to time.

“First Currency” has the meaning specified in Section 115.

“Foreign Currency” means any Currency other than Currency of the United States.

“GAAP” means generally accepted accounting principles in Canada which are in effect from time to time, unless such Person’s most recent audited or quarterly unaudited financial statements are not prepared in accordance with generally accepted accounting principles in Canada, in which case GAAP shall mean generally accepted accounting principles in the United States in effect from time to time.

“Government Obligations” means, unless otherwise specified with respect to any series of Securities pursuant to Section 301, securities which are (i) direct obligations of the government which issued the Currency in which the Securities of a particular series are payable or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the government which issued the Currency in which the Securities of such series are payable, the payment of which is unconditionally guaranteed by such government, which, in either case, are full faith and credit obligations of such government payable in such Currency and are not callable or redeemable at the option of the issuer thereof and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of any such Government Obligation held by such custodian for the account of the holder of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest or principal of the Government Obligation evidenced by such depository receipt.

“Holder” means, in the case of a Registered Security, the Person in whose name a Security is registered in the Security Register and, in the case of a Bearer Security, the bearer thereof and, when used with respect to any coupon, shall mean the bearer thereof.

“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, and shall include the terms of particular series of Securities established as contemplated by Section 301; provided , however , that, if at

 

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any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities for which such Person is Trustee established as contemplated by Section 301, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto executed and delivered after such Person had become such Trustee but to which such Person, as such Trustee, was not a party.

“Indexed Security” means a Security the terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount thereof at original issuance.

“interest” , when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity at the rate prescribed in such Original Issue Discount Security.

“Interest Payment Date” , when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.

“Judgment Currency” has the meaning specified in Section 114.

“Lien” means, with respect to any properties or assets, any mortgage or deed of trust, pledge, hypothecation, assignment, security interest, lien, charge, encumbrance, preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever on or with respect to such properties or assets (including, without limitation, any conditional sale or other title retention agreement having substantially the same economic effect as any of the foregoing).

“Market Exchange Rate” means, unless otherwise specified with respect to any Securities pursuant to Section 301, (i) for any conversion of Dollars into any Foreign Currency, the noon (New York, New York time) buying rate for such Foreign Currency for cable transfers quoted in New York, New York as certified for customs purposes by the Federal Reserve Bank of New York and (ii) for any conversion of one Foreign Currency into Dollars or another Foreign Currency, the spot rate at noon local time in the relevant market at which, in accordance with normal banking procedures, the Dollars or Foreign Currency into which conversion is being made could be purchased with the Foreign Currency from which conversion is being made from major banks located in either New York, New York, London, England or any other principal market for Dollars or such purchased Foreign Currency, in each case determined by the Exchange Rate Agent. Unless otherwise specified with respect to any Securities pursuant to Section 301, in the event of the unavailability of any of the exchange rates provided for in the foregoing clauses (i) and (ii), the Exchange Rate Agent shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or more major banks in New York, New York, London, England or another principal market for the Currency in question, or such other quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise specified by

 

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the Exchange Rate Agent, if there is more than one market for dealing in any Currency by reason of foreign exchange regulations or otherwise, the market to be used in respect of such Currency shall be that upon which a non-resident issuer of securities designated in such Currency would purchase such Currency in order to make payments in respect of such securities.

“Maturity” , when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption, notice of option to elect repayment or otherwise.

“Non-Recourse Debt” means indebtedness to finance the creation, development, construction or acquisition of properties or assets and any increases in or extensions, renewals or refinancings of such indebtedness, provided that the recourse of the lender thereof (including any agent, trustee, receiver or other Person acting on behalf of such entity) in respect of such indebtedness is limited in all circumstances to the properties or assets created, developed, constructed or acquired in respect of which such indebtedness has been incurred and to the receivables, inventory, equipment, chattels payable, contracts, intangibles and other assets, rights or collateral connected with the properties or assets created, developed, constructed or acquired and to which such lender has recourse.

“Notice of Default” has the meaning specified in Section 501.

“Officer’s Certificate” means a certificate signed by any Company Officer and delivered to the Trustee.

“Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Company, including an employee of the Company, and who shall be acceptable to the Trustee, acting reasonably.

“Optional Reset Date” has the meaning specified in Section 307.

“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.

“Other Currency” has the meaning specified in Section 115.

“Outstanding” , when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except :

 

  (i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

 

  (ii)

Securities, or portions thereof, for which money in the necessary amount relating to payment, redemption or repayment at the option of the Holders has been deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities and any coupons appertaining thereto; provided that, if such

 

8


  Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;

 

  (iii) Securities, except to the extent provided in Sections 1402 and 1403, with respect to which the Company has effected defeasance and/or covenant defeasance as provided in Article Fourteen; and

 

  (iv) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a protected purchaser (as defined in Article 8 of the UCC) in whose hands such Securities are valid obligations of the Company;

provided , however , that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum purposes, and for the purpose of making the calculations required by TIA Section 313, (A) the principal amount of an Original Issue Discount Security that may be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the amount of principal thereof that would be (or shall have been declared to be) due and payable, at the time of such determination, upon a declaration of acceleration of the maturity thereof pursuant to Section 502, (B) the principal amount of any Security denominated in a Foreign Currency that may be counted in making such determination or calculation and that shall be deemed Outstanding for such purpose shall be equal to the Dollar equivalent, determined as of the date such Security is originally issued by the Company as set forth in an Exchange Rate Officer’s Certificate delivered to the Trustee, of the principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent as of such date of original issuance of the amount determined as provided in clause (A) above) of such Security, (C) the principal amount of any Indexed Security that may be counted in making such determination or calculation and that shall be deemed outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise provided with respect to such Security pursuant to Section 301, and (D) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making such calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor.

“Paying Agent” means any Person (including the Company acting as Paying Agent) authorized by the Company to pay the principal of (or premium, if any) or interest, if any, on any Securities on behalf of the Company.

 

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“Permitted Liens” of any Person at any particular time means:

 

  (i) Liens existing as of the date of this Indenture, or arising thereafter pursuant to contractual commitments entered into prior to such date;

 

  (ii) Liens on Current Assets given in the ordinary course of business to any financial institution or others to secure any indebtedness payable on demand or maturing (including any right of extension or renewal) within 12 months from the date such indebtedness is incurred;

 

  (iii) Liens in connection with indebtedness, which, by its terms, is Non-Recourse Debt to the Company or any of its Subsidiaries;

 

  (iv) Liens existing on property or assets at the time of acquisition (including by way of lease) by such Person, provided that such Liens were not incurred in anticipation of such acquisition;

 

  (v) Liens or obligations to incur Liens (including under indentures, trust deeds and similar instruments) on property or assets of another Person existing at the time such other Person becomes a Subsidiary of such Person, or is liquidated or merged into, or amalgamated or consolidated with, such Person or Subsidiary of such Person or at the time of the sale, lease or other disposition to such Person or Subsidiary of such Person of all or substantially all of the properties and assets of such other Person, provided that such Liens were not incurred in anticipation of such other Person becoming a Subsidiary of such Person;

 

  (vi) Liens upon property or assets of whatsoever nature other than Restricted Property;

 

  (vii) Liens upon property, assets or facilities used in connection with, or necessarily incidental to, the purchase, sale, storage, transportation or distribution of oil or gas, or the products derived from oil or gas;

 

  (viii)

Liens arising under partnership agreements, oil and natural gas leases, overriding royalty agreements, net profits agreements, production payment agreements, royalty trust agreements, master limited partnership agreements, farm-out agreements, division orders, contracts for the sale, purchase, exchange, storage, transportation, distribution, gathering or processing of Restricted Property, unitizations and pooling designations, declarations, orders and agreements, development agreements, operating agreements, production sales contracts (including security in respect of take or pay or similar obligations thereunder), area of mutual interest agreements, natural gas balancing or deferred production agreements, injection, repressuring and recycling agreements, salt water or other disposal agreements, seismic or geophysical permits or agreements, which in each of the foregoing cases is customary in the oil and natural gas business, and other agreements which are customary in the oil and natural

 

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  gas business, provided in all instances that such Lien is limited to the property or assets that are the subject of the relevant agreement;

 

  (ix) Liens on assets or property (including oil sands property) securing: (A) all or any portion of the cost of acquisition (directly or indirectly), surveying, exploration, drilling, development, extraction, operation, production, construction, alteration, repair or improvement of all or any part of such assets or property, the plugging and abandonment of wells and the decommissioning or removal of structures or facilities located thereon, and the reclamation and clean-up of such properties, facilities and interests and surrounding lands whether or not owned by the Company or its Restricted Subsidiaries, (B) all or any portion of the cost of acquiring (directly or indirectly), developing, constructing, altering, improving, operating or repairing any assets or property (or improvements on such assets or property) used or to be used in connection with such assets or property, whether or not located (or located from time to time) at or on such assets or property, and (C) indebtedness incurred by the Company or any of its Subsidiaries to provide funds for the activities set forth in clauses (A) and (B) above, provided such indebtedness is incurred prior to, during or within two years after the completion of acquisition, construction or such other activities referred to in clauses (A) and (B) above, and (D) indebtedness incurred by the Company or any of its Subsidiaries to refinance indebtedness incurred for the purposes set forth in clauses (A) and (B) above. Without limiting the generality of the foregoing, costs incurred after the date hereof with respect to clauses (A) or (B) above shall include costs incurred for all facilities relating to such assets or property, or to projects, ventures or other arrangements of which such assets or property form a part or which relate to such assets or property, which facilities shall include, without limitation, Facilities, whether or not in whole or in part located (or from time to time located) at or on such assets or property;

 

  (x) Liens granted in the ordinary course of business in connection with Financial Instrument Obligations;

 

  (xi) Purchase Money Mortgages;

 

  (xii) Liens in favor of the Company or any of its Subsidiaries to secure indebtedness owed to the Company or any of its Subsidiaries; and

 

  (xiii)

any extension, renewal, alteration, refinancing, replacement, exchange or refunding (or successive extensions, renewals, alterations, refinancings, replacements, exchanges or refundings) of all or part of any Lien referred to in the foregoing clauses; provided , however , that (A) such new Lien shall be limited to all or part of the property or assets which was secured by the prior Lien plus improvements on such property or assets and (B) the indebtedness, if any, secured by the new Lien is not increased from the amount of the indebtedness secured by the prior Lien then existing at

 

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  the time of such extension, renewal, alteration, refinancing, replacement, exchange or refunding, plus an amount necessary to pay fees and expenses, including premiums, related to such extensions, renewals, alterations, refinancings, replacements, exchanges or refundings.

“Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

“Place of Payment” means, when used with respect to the Securities of or within any series, the place or places where the principal of (and premium, if any) and interest, if any, on such Securities are payable as specified as contemplated by Sections 301 and 1002.

“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a mutilated, destroyed, lost or stolen coupon appertains shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security or the Security to which the mutilated, destroyed, lost or stolen coupon appertains, as the case may be.

“Purchase Money Mortgage” of any Person means any Lien created upon any property or assets of such Person to secure or securing the whole or any part of the purchase price of such property or assets or the whole or any part of the cost of constructing or installing fixed improvements thereon or to secure or securing the repayment of money borrowed to pay the whole or any part of such purchase price or cost of any vendor’s privilege or Lien on such property or assets securing all or any part of such purchase price or cost including title retention agreements and leases in the nature of title retention agreements; provided that (i) the principal amount of money borrowed which is secured by such Lien does not exceed 100% of such purchase price or cost and any fees incurred in connection therewith, and (ii) such Lien does not extend to or cover any other property other than such item of property and any improvements on such item.

“Redemption Date” , when used with respect to any Security to be redeemed, in whole or in part, means the date fixed for such redemption by or pursuant to this Indenture.

“Redemption Price” , when used with respect to any Security to be redeemed, in whole or in part, means the price at which it is to be redeemed pursuant to this Indenture.

“Registered Security” means any Security registered in the Security Register.

“Regular Record Date” for the interest payable on any Interest Payment Date on the Registered Securities of or within any series means the date specified for that purpose as contemplated by Section 301.

“Repayment Date” means, when used with respect to any Security to be repaid at the option of the Holder, the date fixed for such repayment pursuant to this Indenture.

 

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“Repayment Price” means, when used with respect to any Security to be repaid at the option of the Holder, the price at which it is to be repaid pursuant to this Indenture.

“Required Currency” has the meaning specified in Section 114.

“Reset Notice” has the meaning specified in Section 307.

“Responsible Officer” , when used with respect to the Trustee, means any vice-president, any assistant vice-president, any assistant secretary, any assistant treasurer, any trust officer or assistant trust officer or any other officer of the Trustee customarily performing functions similar to those performed by any of the above-designated officers, and assigned to or employed by the Trustee’s corporate trust department, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.

“Restricted Property” means any oil, gas or mineral property of a primary nature located in the United States or Canada, and any facilities located in the United States or Canada, directly related to the mining, processing or manufacture of hydrocarbons or minerals, or any of the constituents thereof, or the derivatives therefrom and includes Voting Shares or other interests of a corporation or other Person which owns such property or facilities, but does not include (i) any property or facilities used in connection with or necessarily incidental to the purchase, sale, storage, transportation or distribution of Restricted Property, (ii) any property which, in the opinion of the Board of Directors, is not materially important to the total business conducted by the Company and its Subsidiaries as an entirety, or (iii) any portion of a particular property which, in the opinion of the Board of Directors, is not materially important to the use or operation of such property.

“Restricted Securities” means shares of stock or indebtedness of any Restricted Subsidiary.

“Restricted Subsidiary” means, on any date, any Subsidiary of the Company which owns at the time Restricted Property; provided , however , such term shall not include a Subsidiary of the Company if the amount of the Company’s share of Shareholders’ Equity of such Subsidiary constitutes, at the time of determination, less than 2% of the Consolidated Net Tangible Assets of the Company.

“Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture; provided , however , that if at any time there is more than one Person acting as Trustee under this Indenture, “Securities” with respect to the Indenture as to which such Person is Trustee shall have the meaning stated in the first recital of this Indenture and shall more particularly mean Securities authenticated and delivered under this Indenture, exclusive, however, of Securities of any series as to which such Person is not Trustee.

“Security Register” and “Security Registrar” have the respective meanings specified in Section 305.

“Shareholders’ Equity” means the aggregate amount of shareholders’ equity (including but not limited to share capital, contributed surplus and retained earnings) of a Person

 

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as shown on the most recent annual audited or quarterly unaudited consolidated balance sheet of the Company and computed in accordance with GAAP.

“Special Record Date” for the payment of any Defaulted Interest on the Registered Securities of or within any series means a date fixed by the Trustee pursuant to Section 307.

“Stated Maturity” , when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security or a coupon representing such installment of interest as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable, as such date may be extended pursuant to the provisions of Section 308.

“Subsequent Interest Period” has the meaning specified in Section 307.

“Subsidiary” of any Person means, on any date, any corporation or other Person of which Voting Shares or other interests carrying more than 50% of the voting rights attached to all outstanding Voting Shares or other interests are owned, directly or indirectly, by or for such Person or one or more Subsidiaries thereof.

“Substantial Completion” means, with respect to an improvement, the point at which the improvement is ready for use or is being used for the purpose for which it was intended.

“Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was executed, except as provided in Section 905.

“Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder; provided , however , that if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean only the Trustee with respect to Securities of that series.

“UCC” means the New York uniform commercial code in effect from time to time.

“United States” means, unless otherwise specified with respect to any Securities pursuant to Section 301, the United States of America (including the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.

“United States person” means, unless otherwise specified with respect to any Securities pursuant to Section 301, an individual who is a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws of the United States or an estate or trust the income of which is subject to United States federal income taxation regardless of its source.

“Unrestricted Subsidiary” means a Subsidiary which is not or which has ceased to be a Restricted Subsidiary.

 

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“Valuation Date” has the meaning specified in Section 312(c).

“Vice-President” , when used with respect to the Company or the Trustee, means any vice-president, whether or not designated by a number or a word or words added before or after the title “vice-president”.

“Voting Shares” means shares of any class of any corporation carrying voting rights under all circumstances, provided that, for the purposes of this definition, shares which only carry the right to vote conditionally on the happening of any event shall not be considered Voting Shares, nor shall any shares be deemed to cease to be Voting Shares solely by reason of a right to vote accruing to shares of another class or classes by reason of the happening of such an event, or solely because the right to vote may not be exercisable under the charter of the corporation.

“Yield to Maturity” means the yield to maturity, computed at the time of issuance of a Security (or, if applicable, at the most recent redetermination of interest on such Security) and as set forth in such Security in accordance with generally accepted United States bond yield computation principles.

SECTION 102. Compliance Certificates and Opinions.

Upon any written application or written request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture (including any covenant compliance with which constitutes a condition precedent) relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.

Every certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture (other than pursuant to Section 1004) shall include:

(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;

(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and

(4) a statement as to whether, in the opinion of each such individual, such covenant or condition has been complied with.

 

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SECTION 103. Form of Documents Delivered to Trustee.

In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.

Any certificate or opinion of an officer of the Company or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of, or representations by, an accountant or firm of accountants in the employ of the Company, unless such officer or counsel, as the case may be, knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the accounting matters upon which such certificate or opinion may be based are erroneous.

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

SECTION 104. Acts of Holders.

(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of the Outstanding Securities of all series or one or more series, as the case may be, may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing. If Securities of a series are issuable as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of such series may, alternatively, be embodied in and evidenced by the record of Holders of Securities of such series voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of Securities of such series duly called and held in accordance with the provisions of Article Fifteen, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing

 

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such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 1506.

(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.

(c) The principal amount and serial numbers of Registered Securities held by any Person, and the date of holding the same, shall be proved by the Security Register.

(d) The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may be proved by the production of such Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary, wherever situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such Person had on deposit with such depositary, or exhibited to it, the Bearer Securities therein described; or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the Company may assume that such ownership of any Bearer Security continues until (1) another certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, or (2) such Bearer Security is produced to the Trustee by some other Person, or (3) such Bearer Security is surrendered in exchange for a Registered Security, or (4) such Bearer Security is no longer Outstanding. The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may also be proved in any other manner that the Trustee deems sufficient.

(e) If the Company shall solicit from the Holders of Registered Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. Notwithstanding TIA Section 316(c), such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation of Holders generally in connection therewith and not later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of

 

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record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than eleven months after the record date.

(f) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.

SECTION 105. Notices, etc. to Trustee and Company.

Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other documents provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,

(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust Department, or

(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this Indenture or at any other address previously furnished in writing to the Trustee by the Company.

SECTION 106. Notice to Holders; Waiver.

Where this Indenture provides for notice of any event to Holders of Registered Securities by the Company or the Trustee, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided. Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or not such Holder actually receives such notice.

In case, by reason of the suspension of or irregularities in regular mail service or by reason of any other cause, it shall be impractical to mail notice of any event to Holders of Registered Securities when such notice is required to be given pursuant to any provision of this

 

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Indenture, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be sufficient giving of such notice for every purpose hereunder.

Except as otherwise expressly provided herein or otherwise specified with respect to any Securities pursuant to Section 301, where this Indenture provides for notice to Holders of Bearer Securities of any event, such notice shall be sufficiently given to Holders of Bearer Securities if published in an Authorized Newspaper in New York, New York and in such other city or cities as may be specified in such Securities on a Business Day at least twice, the first such publication to be not earlier than the earliest date, and not later than the latest date, prescribed for the giving of such notice. Any such notice shall be deemed to have been given on the date of the first such publication.

In case, by reason of the suspension of publication of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause, it shall be impracticable to publish any notice to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be given with the approval of the Trustee shall constitute sufficient notice to such Holders for every purpose hereunder. Neither the failure to give notice by publication to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of such notice with respect to other Holders of Bearer Securities or the sufficiency of any notice to Holders of Registered Securities given as provided herein.

Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.

Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

SECTION 107. Effect of Headings and Table of Contents.

The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

SECTION 108. Successors and Assigns.

All covenants and agreements in this Indenture by the Company and the Trustee shall bind their successors and assigns, whether so expressed or not.

SECTION 109. Separability Clause.

In case any provision in this Indenture or in any Security or coupon shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

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SECTION 110. Benefits of Indenture.

Nothing in this Indenture or in the Securities or coupons, express or implied, shall give to any Person, other than the parties hereto, any Authenticating Agent, any Paying Agent, any Securities Registrar and their successors hereunder and the Holders of Securities or coupons, any benefit or any legal or equitable right, remedy or claim under this Indenture.

SECTION 111. Governing Law.

This Indenture and the Securities and coupons shall be governed by and construed in accordance with the law of the State of New York without regard to principles of conflicts of law. This Indenture is subject to the provisions of the Trust Indenture Act that are required to be part of this Indenture and shall, to the extent applicable, be governed by such provisions.

SECTION 112. Legal Holidays.

In any case where any Interest Payment Date, Redemption Date, sinking fund payment date or Stated Maturity or Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of any Security or coupon other than a provision in the Securities of any series which specifically states that such provision shall apply in lieu of this Section), payment of principal (or premium, if any) or interest, if any, need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date or sinking fund payment date, or at the Stated Maturity or Maturity; provided that no additional interest shall accrue for the period from and after such Interest Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity, as the case may be.

SECTION 113. Agent for Service; Submission to Jurisdiction; Waiver of Immunities.

By the execution and delivery of this Indenture, the Company (i) acknowledges that it has irrevocably designated and appointed CT Corporation System, 111 8 th Avenue, 13 th Floor, New York, New York, 10011 (“ CT Corporation ”) as its authorized agent upon which process may be served in any suit or proceeding arising out of or relating to the Securities or this Indenture that may be instituted in any federal or New York state court located in New York, New York or brought under federal or state securities laws or brought by the Trustee (whether in its individual capacity or in its capacity as Trustee hereunder), (ii) submits to the non-exclusive jurisdiction of any such court in any such suit or proceeding, and (iii) agrees that service of process upon CT Corporation and written notice of said service to the Company (mailed or delivered to the Company, Attention: General Counsel, at its principal office specified in the first paragraph of this Indenture and in the manner specified in Section 105 hereof), shall be deemed in every respect effective service of process upon the Company in any such suit or proceeding. The Company further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of CT Corporation in full force and effect so long as any of the Securities shall be outstanding.

 

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To the extent that the Company has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, the Company hereby irrevocably waives such immunity in respect of its obligations under this Indenture and the Securities, to the extent permitted by law.

The Company hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Indenture or the Securities in any federal or state court in the State of New York, Borough of Manhattan. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

SECTION 114. Conversion of Currency.

(a) The Company covenants and agrees that the following provisions shall apply to conversion of currency in the case of the Securities and this Indenture:

(1) If for the purposes of obtaining judgment in, or enforcing the judgment of, any court in any country, it becomes necessary to convert into any other currency (the “ Judgment Currency ”) an amount due or contingently due under the Securities of any series and this Indenture (the “ Required Currency ”), then the conversion shall be made at the rate of exchange prevailing on the Business Day before the day on which a final judgment which is not appealable or is not appealed is given or the order of enforcement is made, as the case may be (unless a court shall otherwise determine).

(2) If there is a change in the rate of exchange prevailing between the Business Day before the day on which the judgment referred to in (1) above is given or an order of enforcement is made, as the case may be (or such other date as a court shall determine), and the date of receipt of the amount due, the Company shall pay such additional (or, as the case may be, such lesser) amount, if any, as may be necessary so that the amount paid in the Judgment Currency when converted at the rate of exchange prevailing on the date of receipt will produce the amount in the Required Currency originally due.

(b) In the event of the winding-up of the Company at any time while any amount or damages owing under the Securities and this Indenture, or any judgment or order rendered in respect thereof, shall remain outstanding, the Company shall indemnify and hold the Holders of Securities and the Trustee harmless against any deficiency arising or resulting from any variation in rates of exchange between (1) the date as of which the equivalent of the amount in the Required Currency (other than under this Subsection (b)) is calculated for the purposes of such winding-up and (2) the final date for the filing of proofs of claim in such winding-up. For the purpose of this Subsection (b) the final date for the filing of proofs of claim in the winding-up of the Company shall be the date fixed by the liquidator or otherwise in accordance with the relevant provisions of applicable law as being the latest practicable date as at which liabilities of the Company may be ascertained for such winding-up prior to payment by the liquidator or otherwise in respect thereto.

 

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(c) The obligations contained in Subsections (a)(2) and (b) of this Section shall constitute separate and independent obligations of the Company from its other obligations under the Securities and this Indenture, shall give rise to separate and independent causes of action against the Company, shall apply irrespective of any waiver or extension granted by any Holder or Trustee from time to time and shall continue in full force and effect notwithstanding any judgment or order or the filing of any proof of claim in the winding-up of the Company for a liquidated sum in respect of amounts due hereunder (other than under Subsection (b) above) or under any such judgment or order. Any such deficiency as aforesaid shall be deemed to constitute a loss suffered by the Holders or the Trustee, as the case may be, and no proof or evidence of any actual loss shall be required by the Company or the applicable liquidator. In the case of Subsection (b) above, the amount of such deficiency shall not be deemed to be reduced by any variation in rates of exchange occurring between the said final date and the date of any liquidating distribution.

(d) The term “ rate(s) of exchange ” shall mean the Bank of Canada noon rate for purchases on the relevant date of the Required Currency with the Judgment Currency, as reported on the “Exchange Rates—Daily noon rates” page of the website of Bank of Canada (or by such other means of reporting the Bank of Canada noon rate as may be agreed upon by each of the parties to this Indenture) and includes any premiums and costs of exchange payable.

SECTION 115. Currency Equivalent.

Except as otherwise provided in this Indenture, for purposes of the construction of the terms of this Indenture or of the Securities, in the event that any amount is stated herein in the Currency of one nation (the “ First Currency ”), as of any date such amount shall also be deemed to represent the amount in the Currency of any other relevant nation (the “ Other Currency ”) which is required to purchase such amount in the First Currency at the Bank of Canada noon rate as reported on the “Exchange Rates—Daily noon rates” page of the website of Bank of Canada (or by such other means of reporting the Bank of Canada noon rate as may be agreed upon by each of the parties to this Indenture) on the date of determination.

SECTION 116. Incorporators, Shareholders, Officers and Directors of the Company Exempt from Individual Liability.

No recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such, or against any past, present or future shareholder, officer or director, as such, of the Company or of any successor, either directly or through the Company or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders as part of the consideration for the issue of the Securities.

 

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SECTION 117. Conflict with the Trust Indenture Act.

If and to the extent that any provision hereof limits, qualifies or conflicts with the duties imposed by any of Sections 310 to 318, inclusive, of the Trust Indenture Act, through operation of Section 318(c) thereof, such imposed duties shall control.

ARTICLE TWO

SECURITIES FORMS

SECTION 201. Forms Generally.

The Registered Securities, if any, of each series and the Bearer Securities, if any, of each series and related coupons shall be in substantially the forms as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Securities or coupons, as evidenced by their execution of the Securities or coupons. If the forms of Securities or coupons of any series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Corporate Secretary or an Assistant Corporate Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Securities or coupons. Any portion of the text of any Security may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Security.

Unless otherwise specified as contemplated by Section 301, Securities in bearer form shall have interest coupons attached.

The Trustee’s certificate of authentication on all Securities shall be in substantially the form set forth in this Article.

The definitive Securities and coupons shall be printed, lithographed or engraved on steel-engraved borders or may be produced in any other manner, all as determined by the officers of the Company executing such Securities, as evidenced by their execution of such Securities or coupons.

SECTION 202. Form of Trustee’s Certificate of Authentication.

Subject to Section 612, the Trustee’s certificate of authentication shall be in substantially the following form:

 

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TRUSTEE’S CERTIFICATE OF AUTHENTICATION

Dated:                    

This is one of the Securities of the series designated and referred to in, and issued under, the within-mentioned Indenture.

 

THE BANK OF NEW YORK,

                                 as Trustee

By  

 

  Authorized Signatory

SECTION 203. Securities Issuable in Global Form.

If Securities of or within a series are issuable in global form, as specified and contemplated by Section 301, then, notwithstanding clause (8) of Section 301 and Section 302, any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities of such series from time to time endorsed thereon and that the aggregate amount of Outstanding Securities of such series represented thereby may from time to time be increased or decreased to reflect exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon written instructions given by such Person or Persons as shall be specified therein or in the Company Order to be delivered to the Trustee pursuant to Section 303 or Section 304. Subject to the provisions of Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon written instructions given by the Person or Persons specified therein or in the applicable Company Order. If a Company Order pursuant to Section 303 or Section 304 has been, or simultaneously is, delivered, any instructions by the Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 102 and need not be accompanied by an Opinion of Counsel.

The provisions of the last sentence of Section 303 shall apply to any Security represented by a Security in global form if such Security was never issued and sold by the Company and the Company delivers to the Trustee the Security in global form together with written instructions (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 303.

Notwithstanding the provisions of Section 307, unless otherwise specified as contemplated by Section 301, payment of principal of (and premium, if any) and interest, if any, on any Security in permanent global form shall be made to the Person or Persons specified therein.

 

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ARTICLE THREE

THE SECURITIES

SECTION 301. Amount Unlimited; Issuable in Series.

The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.

The Securities may be issued in one or more series. There shall be established in one or more Board Resolutions or pursuant to authority granted by one or more Board Resolutions and, subject to Section 303, set forth in, or determined in the manner provided in, an Officer’s Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series, any or all of the following, as applicable (each of which (except for the matters set forth in clauses (1), (2) and (17) below), if so provided, may be determined from time to time by the Company with respect to unissued Securities of the series and set forth in such Securities of the series when issued from time to time):

(1) the title of the Securities of the series (which shall distinguish the Securities of the series from all other series of Securities);

(2) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or 1305);

(3) the date or dates, or the method by which such date or dates will be determined or extended, on which the Securities of the series may be issued and on which the principal of the Securities of the series is payable;

(4) the rate or rates (whether fixed or variable) at which the Securities of the series shall bear interest, if any, or the method by which such rate or rates shall be determined, the date or dates from which such interest shall accrue, or the method by which such date or dates shall be determined, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date, if any, for the interest payable on any Registered Security on any Interest Payment Date, or the method by which such date or dates shall be determined, whether and under what circumstances Additional Amounts on such Securities or any of them shall be payable, the notice, if any, to Holders regarding the determination of interest on a floating rate Security and the manner of giving such notice, and the basis upon which interest shall be calculated if other than on the basis of a 360-day year of twelve 30-day months;

(5) the place or places, if any, other than or in addition to the Borough of Manhattan, New York, New York where the principal of (and premium, if any) and interest, if any, on Securities of the series shall be payable, where any Registered Securities of the series may be surrendered for registration of transfer, where Securities of the series may be surrendered for exchange, where Securities of the series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable and, if different than the location specified in Section 105, the place or places

 

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where notices or demands to or upon the Company in respect of the Securities of the series and this Indenture may be served;

(6) the period or periods within which, the price or prices at which, the Currency in which, and other terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company, if the Company is to have that option;

(7) the obligation, if any, of the Company to redeem, repay or purchase Securities of the series pursuant to any sinking fund or analogous provision or at the option of a Holder thereof, and the period or periods within which, the price or prices at which, the Currency in which, and other terms and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;

(8) if other than denominations of $1,000 and any integral multiple thereof, the denomination or denominations in which any Registered Securities of the series shall be issuable and, if other than denominations of $5,000, the denomination or denominations in which any Bearer Securities of the series shall be issuable;

(9) if other than the Trustee, the identity of each Security Registrar and/or Paying Agent;

(10) if other than the principal amount thereof, the portion of the principal amount of Securities of the series that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502 or the method by which such portion shall be determined;

(11) if other than Dollars, the Currency in which payment of the principal of (or premium, if any) or interest, if any, on the Securities of the series shall be payable or in which the Securities of the series shall be denominated and the particular provisions applicable thereto in accordance with, in addition to or in lieu of any of the provisions of Section 312;

(12) whether the amount of payments of principal of (or premium, if any) or interest, if any, on the Securities of the series may be determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on one or more Currencies, commodities, equity indices or other indices), and the manner in which such amounts shall be determined;

(13) whether the principal of (or premium, if any) or interest, if any, on the Securities of the series are to be payable, at the election of the Company or a Holder thereof, in a Currency other than that in which such Securities are denominated or stated to be payable, the period or periods within which (including the Election Date), and the terms and conditions upon which, such election may be made, and the time and manner of determining the exchange rate between the Currency in which such Securities are denominated or stated to be payable and the Currency in which such Securities are to be so payable, in each case in accordance with, in addition to or in lieu of any of the provisions of Section 312;

 

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(14) the designation of the initial Exchange Rate Agent, if any;

(15) the applicability, if any, of Sections 1402 and/or 1403 to the Securities of the series and any provisions in modification of, in addition to or in lieu of any of the provisions of Article Fourteen that shall be applicable to the Securities of the series;

(16) provisions, if any, granting special rights to the Holders of Securities of the series upon the occurrence of such events as may be specified;

(17) any deletions from, modifications of or additions to the Events of Default or covenants (including any deletions from, modifications of or additions to Section 1009) of the Company with respect to Securities of the series, whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein;

(18) whether Securities of the series are to be issuable as Registered Securities, Bearer Securities (with or without coupons) or both, any restrictions applicable to the offer, sale or delivery of Bearer Securities, whether any Securities of the series are to be issuable initially in temporary global form and whether any Securities of the series are to be issuable in permanent global form with or without coupons and, if so, whether beneficial owners of interests in any such permanent global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 305, whether Registered Securities of the series may be exchanged for Bearer Securities of the series (if permitted by applicable laws and regulations), whether Bearer Securities of the series may be exchanged for Registered Securities of such series, and the circumstances under which and the place or places where any such exchanges may be made and if Securities of the series are to be issuable in global form, the identity of any initial Depositary therefor;

(19) the date as of which any Bearer Securities of the series and any temporary global Security representing Outstanding Securities of the series shall be dated if other than the date of original issuance of the first Security of the series to be issued;

(20) the Person to whom any interest on any Registered Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, the manner in which, or the Person to whom, any interest on any Bearer Security of the series shall be payable, if otherwise than upon presentation and surrender of the coupons appertaining thereto as they severally mature, and the extent to which, or the manner in which, any interest payable on a temporary global Security on an Interest Payment Date will be paid if other than in the manner provided in Section 304;

(21) if Securities of the series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and/or terms of such certificates, documents or conditions;

 

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(22) if the Securities of the series are to be issued upon the exercise of warrants, the time, manner and place for such Securities to be authenticated and delivered;

(23) whether, under what circumstances and the Currency in which the Company will pay Additional Amounts as contemplated by Section 1005 on the Securities of the series to any Holder who is not a United States person (including any modification to the definition of such term) in respect of any tax, assessment or governmental charge and, if so, whether the Company will have the option to redeem such Securities rather than pay such Additional Amounts (and the terms of any such option);

(24) if the Securities of the series are to be convertible into or exchangeable for any securities of any Person (including the Company), the terms and conditions upon which such Securities will be so convertible or exchangeable;

(25) if payment of the Securities will be guaranteed by any other Person;

(26) the extent and manner, if any, to which payment on or in respect of the Securities of the series will be senior or will be subordinated to the prior payment of other liabilities and obligations of the Company;

(27) if other than The Depository Trust Company, the Person designated as the Depositary for the Securities of such series;

(28) the percentage or percentages of principal amount at which the Securities of the series will be issued; and

(29) any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to the series (which terms shall not be inconsistent with the requirements of the Trust Indenture Act or the provisions of this Indenture).

All Securities of any one series and the coupons appertaining to any Bearer Securities of such series shall be substantially identical except, in the case of Registered Securities, as to denomination and except as may otherwise be provided in or pursuant to a Board Resolution (subject to Section 303) and set forth in such Officer’s Certificate or in any such indenture supplemental hereto. The Company may, from time to time, without notice or consent of the Holders, create and issue additional Securities of a series so that such additional Securities may be consolidated and form a single series with the Securities of the same series initially issued by the Company and shall have the same terms as to status, redemption and otherwise as the Securities of the same series originally issued.

If any of the terms of the series are established by action taken pursuant to one or more Board Resolutions, such Board Resolutions shall be delivered to the Trustee at or prior to the delivery of the Officer’s Certificate setting forth the terms of the series.

 

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SECTION 302. Denominations.

The Securities of each series shall be issuable in such denominations as shall be specified as contemplated by Section 301. With respect to Securities of any series denominated in Dollars, in the absence of any such provisions, the Registered Securities of such series, other than Registered Securities issued in global form (which may be of any denomination), shall be issuable in denominations of $1,000 and any integral multiple thereof and the Bearer Securities of such series, other than the Bearer Securities issued in global form (which may be of any denomination), shall be issuable in a denomination of $5,000.

SECTION 303. Execution, Authentication, Delivery and Dating.

The Securities and any coupons appertaining thereto shall be executed on behalf of the Company by its Chairman, its President, its Chief Executive Officer, its Chief Financial Officer or a Vice-President, together with any one of the Corporate Secretary, or Assistant Corporate Secretary, the Treasurer or an Assistant Treasurer. The signature of any of these officers on the Securities or coupons may be the manual or facsimile signatures of the present or any future such authorized officer and may be imprinted or otherwise reproduced on the Securities.

Securities or coupons bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities or coupons.

At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series together with any coupon appertaining thereto, executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Company Order shall authenticate and deliver such Securities; provided , however , that, in connection with its original issuance, no Bearer Security shall be mailed or otherwise delivered to any location in the United States; and provided further , that, unless otherwise specified with respect to any series of Securities pursuant to Section 301, a Bearer Security may be delivered in connection with its original issuance only if the Person entitled to receive such Bearer Security shall have furnished a certificate in the form set forth in Exhibit A-1 to this Indenture, dated no earlier than 15 days prior to the earlier of the date on which such Bearer Security is delivered and the date on which any temporary Security first becomes exchangeable for such Bearer Security in accordance with the terms of such temporary Security and this Indenture. If any Security shall be represented by a permanent global Bearer Security, then, for purposes of this Section and Section 304, the notation of a beneficial owner’s interest therein upon original issuance of such Security or upon exchange of a portion of a temporary global Security shall be deemed to be delivery in connection with its original issuance of such beneficial owner’s interest in such permanent global Security. Except as permitted by Section 306, the Trustee shall not authenticate and deliver any Bearer Security unless all appurtenant coupons for interest then matured have been detached and cancelled. If not all the Securities of any series are to be issued at one time and if the Board Resolution or supplemental indenture establishing such series shall so permit, such Company Order may set forth procedures

 

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acceptable to the Trustee for the issuance of such Securities and determining terms of particular Securities of such series such as interest rate, stated maturity, date of issuance and date from which interest shall accrue.

In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to TIA Sections 315(a) through 315(d)) shall be fully protected in relying upon, an Opinion of Counsel stating:

(a) that the form or forms of such Securities and any coupons have been established in conformity with the provisions of this Indenture;

(b) that the terms of such Securities and any coupons have been established in conformity with the provisions of this Indenture;

(c) that such Securities, together with any coupons appertaining thereto, when completed by appropriate insertions and executed and delivered by the Company to the Trustee for authentication in accordance with this Indenture, authenticated and delivered by the Trustee in accordance with this Indenture and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute the legal, valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting the enforcement of creditors’ rights, to general equitable principles and to such other qualifications as such counsel shall conclude do not materially affect the rights of Holders of such Securities and any coupons;

(d) that all laws and requirements in respect of the execution and delivery by the Company of such Securities, any coupons and of the supplemental indentures, if any, have been complied with and that authentication and delivery of such Securities and any coupons and the execution and delivery of the supplemental indenture, if any, by the Trustee will not violate the terms of the Indenture;

(e) that the Company has the corporate power to issue such Securities and any coupons, and has duly taken all necessary corporate action with respect to such issuance; and

(f) that the issuance of such Securities and any coupons will not contravene the articles of incorporation or amalgamation or by-laws of the Company or result in any violation of any of the terms or provisions of any law or regulation or of any indenture, mortgage or other agreement known to such Counsel by which the Company is bound.

Notwithstanding the provisions of Section 301 and of the preceding two paragraphs, if not all the Securities of any series are to be issued at one time, it shall not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 301 or the Company Order and Opinion of Counsel otherwise required pursuant to the preceding two paragraphs prior to or at the time of issuance of each Security, but such documents shall be delivered prior to or at the time of issuance of the first Security of such series.

 

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The Trustee shall not be required to authenticate and deliver any such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.

Each Registered Security shall be dated the date of its authentication and each Bearer Security shall be dated as of the date specified as contemplated by Section 301.

No Security or coupon shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein duly executed by the Trustee by manual signature of an authorized officer, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 310 together with a written statement (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never entitle a Holder to the benefits of this Indenture.

SECTION 304. Temporary Securities.

Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form or, if authorized, in bearer form with one or more coupons or without coupons, and with such appropriate insertions, omissions, substitutions and other variations as conclusively the officers executing such Securities may determine, as conclusively evidenced by their execution of such Securities. Such temporary Securities may be in global form.

Except in the case of temporary Securities in global form (which shall be exchanged in accordance with the provisions of the following paragraphs), if temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series (accompanied by any unmatured coupons appertaining thereto), the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations; provided , however , that no definitive Bearer Security shall be delivered in exchange for a temporary Registered Security; and provided further , that a definitive Bearer Security shall be delivered in exchange for a temporary Bearer Security only in compliance with the conditions set forth in Section 303. Until so exchanged the

 

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temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.

If temporary Securities of any series are issued in global form, any such temporary global Security shall, unless otherwise provided therein, be delivered to the London, England office of a depositary or common depositary (the “ Common Depositary ”) or the Depositary, as applicable, for the benefit of Euroclear and Clearstream, for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they may direct).

Without unnecessary delay but in any event not later than the date specified in, or determined pursuant to the terms of, any such temporary global Security (the “ Exchange Date ”), the Company shall deliver to the Trustee definitive Securities, in aggregate principal amount equal to the principal amount of such temporary global Security, executed by the Company. On or after the Exchange Date such temporary global Security shall be surrendered by the Common Depositary to the Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities without charge and the Trustee shall authenticate and deliver, in exchange for each portion of such temporary global Security, an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such temporary global Security to be exchanged. The definitive Securities to be delivered in exchange for any such temporary global Security shall be in bearer form, registered form, permanent global bearer form or permanent global registered form, or any combination thereof, as specified as contemplated by Section 301, and, if any combination thereof is so specified, as requested by the beneficial owner thereof; provided , however , that, unless otherwise specified in such temporary global Security, upon such presentation by the Common Depositary, such temporary global Security is accompanied by a certificate dated the Exchange Date or a subsequent date and signed by Euroclear as to the portion of such temporary global Security held for its account then to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by Clearstream as to the portion of such temporary global Security held for its account then to be exchanged, each in the form set forth in Exhibit A-2 to this Indenture (or in such other form as may be established pursuant to Section 301); and provided further , that definitive Bearer Securities shall be delivered in exchange for a portion of a temporary global Security only in compliance with the requirements of Section 303.

Unless otherwise specified in such temporary global Security, the interest of a beneficial owner of Securities of a series in a temporary global Security shall be exchanged for definitive Securities of the same series and of like tenor following the Exchange Date when the account holder instructs Euroclear or Clearstream, as the case may be, to request such exchange on his behalf and delivers to Euroclear or Clearstream, as the case may be, a certificate in the form set forth in Exhibit A-1 to this Indenture (or in such other form as may be established pursuant to Section 301), dated no earlier than 15 days prior to the Exchange Date, copies of which certificate shall be available from the offices of Euroclear and Clearstream, the Trustee, any Authenticating Agent appointed for such series of Securities and each Paying Agent. Unless otherwise specified in such temporary global Security, any such exchange shall be made free of charge to the beneficial owners of such temporary global Security, except that a Person receiving definitive Securities must bear the cost of insurance, postage, transportation and the like in the event that such Person does not take delivery of such definitive Securities in person at the offices

 

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of Euroclear or Clearstream. Definitive Securities in bearer form to be delivered in exchange for any portion of a temporary global Security shall be delivered only outside the United States.

Until exchanged in full as hereinabove provided, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder, except that, unless otherwise specified as contemplated by Section 301, interest payable on a temporary global Security on an Interest Payment Date for Securities of such series occurring prior to the applicable Exchange Date shall be payable to Euroclear and Clearstream on such Interest Payment Date upon delivery by Euroclear and Clearstream to the Trustee of a certificate or certificates in the form set forth in Exhibit A-2 to this Indenture (or in such other form as may be established pursuant to Section 301), for credit without further interest thereon on or after such Interest Payment Date to the respective accounts of the Persons who are the beneficial owners of such temporary global Security on such Interest Payment Date and who have each delivered to Euroclear or Clearstream, as the case may be, a certificate dated no earlier than 15 days prior to the Interest Payment Date occurring prior to such Exchange Date in the form set forth in Exhibit A-1 to this Indenture (or in such other form as may be established pursuant to Section 301). Notwithstanding anything to the contrary herein contained, the certifications made pursuant to this paragraph shall satisfy the certification requirements of the preceding two paragraphs of this Section and of the third paragraph of Section 303 of this Indenture and the interests of the Persons who are the beneficial owners of the temporary global Security with respect to which such certification was made will be exchanged for definitive Securities of the same series and of like tenor on the Exchange Date or the date of certification if such date occurs after the Exchange Date, without further act or deed by such beneficial owners. Except as otherwise provided in this paragraph, no payments of principal (or premium, if any) or interest, if any, owing with respect to a beneficial interest in a temporary global Security will be made unless and until such interest in such temporary global Security shall have been exchanged for an interest in a definitive Security. Any interest so received by Euroclear and Clearstream and not paid as herein provided shall be returned to the Trustee immediately prior to the expiration of two years after such Interest Payment Date in order to be repaid to the Company in accordance with Section 1003.

SECTION 305. Registration, Registration of Transfer and Exchange.

The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register for each series of Securities (the registers maintained in the Corporate Trust Office of the Trustee and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “ Security Register ”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and of transfers of Registered Securities. The Security Register shall be in written form or any other form capable of being converted into written form within a reasonable time. At all reasonable times, the Security Register shall be open to inspection by the Trustee. The Trustee is hereby initially appointed as security registrar (the “ Security Registrar ”) for the purpose of registering Registered Securities and transfers of Registered Securities as herein provided. The Company shall have the right to remove and replace from time to time the Security Registrar for any series of Securities; provided , that , no such removal or replacement shall be effective until a successor Security Registrar with respect to such series of Registered Securities shall have been appointed by the Company and shall have accepted such appointment

 

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by the Company. In the event that the Trustee shall not be or shall cease to be the Security registrar with respect to a series of Securities, it shall have the right to examine the Security Register for such series at all reasonable times. There shall be only one Security Register for such series of Securities.

Upon surrender for registration of transfer of any Registered Security of any series at the office or agency in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee, one or more new Registered Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor.

At the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series, of any authorized denomination and of a like aggregate principal amount and tenor, upon surrender of the Registered Securities to be exchanged at such office or agency. Whenever any Registered Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Registered Securities which the Holder making the exchange is entitled to receive. Unless otherwise specified with respect to any series of Securities as contemplated by Section 301, Bearer Securities may not be issued in exchange for Registered Securities.

If (but only if) expressly permitted in or pursuant to the applicable Board Resolution and (subject to Section 303) set forth in the applicable Officer’s Certificate, or in any indenture supplemental hereto, delivered as contemplated by Section 301, at the option of the Holder, Bearer Securities of any series may be exchanged for Registered Securities of the same series of any authorized denomination and of a like aggregate principal amount and tenor, upon surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons and all matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon or coupons or matured coupon or coupons in default, any such permitted exchange may be effected if the Bearer Securities are accompanied by payment in funds acceptable to the Company in an amount equal to the face amount of such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there is furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to any Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided , however , that, except as otherwise provided in Section 1002, interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or agency in a permitted exchange for a Registered Security of the same series and like tenor after the close of business at such office or agency on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed date for payment, as the case may be, and interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will be

 

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payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture.

Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.

Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 301, any permanent global Security shall be exchangeable only as provided in this paragraph. If any beneficial owner of an interest in a permanent global Security is entitled to exchange such interest for Securities of such series and of like tenor and principal amount of another authorized form and denomination, as specified as contemplated by Section 301 and provided that any applicable notice provided in the permanent global Security shall have been given, then without unnecessary delay but in any event not later than the earliest date on which such interest may be so exchanged, the Company shall deliver to the Trustee definitive Securities in aggregate principal amount equal to the principal amount of such beneficial owner’s interest in such permanent global Security, executed by the Company. On or after the earliest date on which such interests may be so exchanged, such permanent global Security shall be surrendered by the Common Depositary or such other Depositary as shall be specified in the Company Order with respect thereto to the Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities without charge, and the Trustee shall authenticate and deliver, in exchange for each portion of such permanent global Security, an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such permanent global Security to be exchanged which, unless the Securities of the series are not issuable both as Bearer Securities and as Registered Securities, as specified as contemplated by Section 301, shall be in the form of Bearer Securities or Registered Securities, or any combination thereof, as shall be specified by the beneficial owner thereof; provided , however , that no such exchanges may occur during a period beginning at the opening of business 15 days before any selection of Securities to be redeemed and ending on the relevant Redemption Date if the Security for which exchange is requested may be among those selected for redemption; and provided further , that no Bearer Security delivered in exchange for a portion of a permanent global Security shall be mailed or otherwise delivered to any location in the United States. If a Registered Security is issued in exchange for any portion of a permanent global Security after the close of business at the office or agency where such exchange occurs on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but will be payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the Person to whom interest in respect of such portion of such permanent global Security is payable in accordance with the provisions of this Indenture.

If at any time the Depositary for Securities of a series notifies the Company that it is unwilling, unable or no longer qualifies to continue as Depositary for Securities of such series or if at any time the Depositary for Securities for such series shall no longer be registered or in good standing under the Exchange Act, or other applicable statute or regulation, the Company

 

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shall appoint a successor Depositary with respect to the Securities for such series. If a successor to the Depositary for Securities is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, and the Trustee, as Security Registrar, has received a written request from the Depositary or a participant in the Depositary in accordance with the Depositary’s customary procedures to issue Securities in definitive form to such participant or other beneficial owner specified by such participant to the Trustee in writing, the Company’s election pursuant to Section 301 shall no longer be effective with respect to the Securities for such series and the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver individual Securities of such series in certificated, fully registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the global Security or Securities representing such series in exchange for such global Security or Securities.

The Company may at any time and in its sole discretion determine that the Securities of any series issued in the form of one or more global Securities shall no longer be represented by such global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver Securities of such series in definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the global Security or Securities representing such series in exchange for such global Security or Securities.

Upon the exchange of a global Security for Securities in definitive registered form, such global Security shall be cancelled by the Trustee. Securities issued in exchange for a global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee in writing. The Trustee shall deliver such Securities to the persons in whose names such Securities are so registered.

All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.

Every Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Security Registrar) be duly endorsed, or be accompanied by a written instrument of transfer, in form satisfactory to the Company and the Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.

No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.

The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days

 

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before the day of the selection for redemption of Securities of that series under Section 1103 or 1203 and ending at the close of business on (A) if Securities of the series are issuable only as Registered Securities, the day of the mailing of the relevant notice of redemption and (B) if Securities of the series are issuable as Bearer Securities, the day of the first publication of the relevant notice of redemption or, if Securities of the series are also issuable as Registered Securities and there is no publication, the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Registered Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part, or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of that series and like tenor; provided that such Registered Security shall be immediately surrendered for redemption, or (iv) to issue, register the transfer of or exchange any Security which has been surrendered for repayment at the option of the Holder, except the portion, if any, of such Security not to be so repaid.

SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.

If any mutilated Security or a Security with a mutilated coupon appertaining to it is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to the surrendered Security, or, in case any such mutilated Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, with coupons corresponding to the coupons, if any, appertaining to the surrendered Security, pay such Security or coupon.

If there shall be delivered to the Company and to the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security or coupon and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security or coupon has been acquired by a protected purchaser (as defined in Article 8 of the UCC), the Company shall execute and upon Company Order the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security or in exchange for the Security for which a destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed, lost or stolen), a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon appertains.

Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, with coupons corresponding to the coupons, if any, appertaining to such mutilated, destroyed, lost or stolen Security or to the Security to which such mutilated, destroyed, lost or stolen coupon appertains, pay such Security or coupon; provided , however , that payment of principal of (and premium, if any) and interest, if any, on Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at an office or agency located outside the United States and, unless otherwise specified as contemplated by Section 301, any interest on Bearer Securities shall be payable only upon presentation and surrender of the coupons appertaining thereto.

 

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Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

Every new Security of any series with its coupons, if any, issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Security or in exchange for a Security to which a mutilated, destroyed, lost or stolen coupon appertains, shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security and its coupons, if any, or the mutilated, destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and the Holders of such Security shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series and their coupons, if any, duly issued hereunder.

The provisions of this Section, as amended or supplemented pursuant to this Indenture with respect to particular Securities or generally, are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons.

SECTION 307. Payment of Principal and Interest; Interest Rights Preserved; Optional Interest Reset.

(a) Unless otherwise provided as contemplated by Section 301 with respect to any series of Securities, interest, if any, on any Registered Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest at the office or agency of the Company maintained for such purpose pursuant to Section 1002; provided , however , that each installment of the principal of (and premium, if any, on) and interest, if any, on any Registered Security may at the Company’s option be paid by (i) mailing a check for such interest, payable to or upon the written order of the Person entitled thereto pursuant to Section 309, to the address of such Person as it appears on the Security Register or (ii) wire transfer to an account of the person entitled to receive such payment located in the United States maintained by the payee of a Holder at $5,000,000 or more in aggregate principle amount of the Securities of such series (with wire transfer instructions provided to the Trustee not less than 15 days prior to payment of interest by wire transfer); provided further , that principal paid in relation to any Security redeemed at the option of the Company pursuant to Article Eleven, or paid at Maturity, shall be paid to the holder of such Security only upon presentation and surrender of such Security to such office or agency referred to in this Section 307(a).

Unless otherwise provided as contemplated by Section 301 with respect to the Securities of any series, payment of interest, if any, may be made, in the case of a Bearer Security, by transfer to an account located outside the United States maintained by the payee.

Unless otherwise provided as contemplated by Section 301, every permanent global Security will provide that interest, if any, payable on any Interest Payment Date will be paid to each of Euroclear and Clearstream with respect to that portion of such permanent global Security held for its account by the Common Depositary, for the purpose of permitting each of

 

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Euroclear and Clearstream to credit the interest, if any, received by it in respect of such permanent global Security to the accounts of the beneficial owners thereof.

Any interest on any Registered Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the Holder on the relevant Regular Record Date, and such defaulted interest and, if applicable, interest on such defaulted interest (to the extent lawful) at the rate specified in the Securities of such series (such defaulted interest and, if applicable, interest thereon herein collectively called “ Defaulted Interest ”) may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:

(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Registered Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given in the manner provided in Section 106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so given, such Defaulted Interest shall be paid to the Persons in whose name the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2).

(2) The Company may make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.

(b) The provisions of this Section 307(b) may be made applicable to any series of Securities pursuant to Section 301 (with such modifications, additions or substitutions as may be specified pursuant to such Section 301). The interest rate (or the

 

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spread or spread multiplier used to calculate such interest rate, if applicable) on any Security of such series may be reset by the Company on the date or dates specified on the face of such Security (each an “ Optional Reset Date ”). The Company may exercise such option with respect to such Security by notifying the Trustee of such exercise at least 50 but not more than 60 days prior to an Optional Reset Date for such Note. Not later than 40 days prior to each Optional Reset Date, the Trustee shall transmit, in the manner provided for in Section 106, to the Holder of any such Security a notice (the “ Reset Notice ”) indicating whether the Company has elected to reset the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable), and if so (i) such new interest rate (or such new spread or spread multiplier, if applicable) and (ii) the provisions, if any, for redemption during the period from such Optional Reset Date to the next Optional Reset Date or if there is no such next Optional Reset Date, to the Stated Maturity Date of such Security (each such period a “ Subsequent Interest Period ”), including the date or dates on which or the period or periods during which and the price or prices at which such redemption may occur during the Subsequent Interest Period.

Notwithstanding the foregoing, not later than 20 days prior to the Optional Reset Date, the Company may, at its option, revoke the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) provided for in the Reset Notice and establish an interest rate (or a spread or spread multiplier used to calculate such interest rate, if applicable) that is higher than the interest rate (or the spread or spread multiplier, if applicable) provided for in the Reset Notice, for the Subsequent Interest Period by causing the Trustee to transmit, in the manner provided for in Section 106, notice of such higher interest rate (or such higher spread or spread multiplier, if applicable) to the Holder of such Security. Such notice shall be irrevocable. All Securities with respect to which the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) is reset on an Optional Reset Date, and with respect to which the Holders of such Securities have not tendered such Securities for repayment (or have validly revoked any such tender) pursuant to the next succeeding paragraph, will bear such higher interest rate (or such higher spread or spread multiplier, if applicable).

The Holder of any such Security will have the option to elect repayment by the Company of the principal of such Security on each Optional Reset Date at a price equal to the principal amount thereof plus interest accrued to such Optional Reset Date. In order to obtain repayment on an Optional Reset Date, the Holder must follow the procedures set forth in Article Thirteen for repayment at the option of Holders except that the period for delivery or notification to the Trustee shall be at least 25 but not more than 35 days prior to such Optional Reset Date and except that, if the Holder has tendered any Security for repayment pursuant to the Reset Notice, the Holder may, by written notice to the Trustee, revoke such tender or repayment until the close of business on the tenth day before such Optional Reset Date.

Subject to the foregoing provisions of this Section and Section 305, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

 

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SECTION 308. Optional Extension of Stated Maturity.

The provisions of this Section 308 may be made applicable to any series of Securities pursuant to Section 301 (with such modifications, additions or substitutions as may be specified pursuant to such Section 301). The Stated Maturity of any Security of such series may be extended at the option of the Company for the period or periods specified on the face of such Security (each an “ Extension Period ”) up to but not beyond the date (the “ Final Maturity ”) set forth on the face of such Security. The Company may exercise such option with respect to any Security by notifying the Trustee of such exercise at least 50 but not more than 60 days prior to the Stated Maturity of such Security in effect prior to the exercise of such option (the “ Original Stated Maturity ”). If the Company exercises such option, the Trustee shall transmit, in the manner provided for in Section 106, to the Holder of such Security not later than 40 days prior to the Original Stated Maturity a notice (the “ Extension Notice ”) indicating (i) the election of the Company to extend the Stated Maturity, (ii) the new Stated Maturity, (iii) the interest rate, if any, applicable to the Extension Period and (iv) the provisions, if any, for redemption during such Extension Period. Upon the Trustee’s transmittal of the Extension Notice, the Stated Maturity of such Security shall be extended automatically and, except as modified by the Extension Notice and as described in the next paragraph, such Security will have the same terms as prior to the transmittal of such Extension Notice.

Notwithstanding the foregoing, not later than 20 days before the Original Stated Maturity of such Security, the Company may, at its option, revoke the interest rate provided for in the Extension Notice and establish a higher interest rate for the Extension Period by causing the Trustee to transmit, in the manner provided for in Section 106, notice of such higher interest rate to the Holder of such Security. Such notice shall be irrevocable. All Securities with respect to which the Stated Maturity is extended will bear such higher interest rate.

If the Company extends the Maturity of any Security, the Holder will have the option to elect repayment of such Security by the Company on the Original Stated Maturity at a price equal to the principal amount thereof, plus interest accrued to such date. In order to obtain repayment on the Original Stated Maturity once the Company has extended the Maturity thereof, the Holder must follow the procedures set forth in Article Thirteen for repayment at the option of Holders, except that the period for delivery or notification to the Trustee shall be at least 25 but not more than 35 days prior to the Original Stated Maturity and except that, if the Holder has tendered any Security for repayment pursuant to an Extension Notice, the Holder may by written notice to the Trustee revoke such tender for repayment until the close of business on the tenth day before the Original Stated Maturity.

SECTION 309. Persons Deemed Owners.

Prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Sections 305 and 307) interest, if any, on such Security and for all other purposes whatsoever (except for determining whether the payment of Additional Amounts is required), whether or not such Security be overdue, and none of the Company, the Trustee or any agent of the Company or the Trustee shall be affected by notice to the contrary.

 

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Title to any Bearer Security and any coupons appertaining thereto shall pass by delivery. The Company, the Trustee and any agent of the Company or the Trustee may treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner of such Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Security or coupons be overdue, and none of the Company, the Trustee or any agent of the Company or the Trustee shall be affected by notice to the contrary.

The Depositary for Securities may be treated by the Company, the Trustee, and any agent of the Company or the Trustee as the owner of such global Security for all purposes whatsoever (except for determining whether the payment of Additional Amounts is required). None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Security in global form or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

Notwithstanding anything to the contrary in this Indenture, the Depositary or its nominee, as a Holder of a global Security, may grant proxies and otherwise authorize any Person (including owners of beneficial interests in the Securities) to take any action that the Depositary or its nominee, as a Holder of a global Security, is entitled to take under this Indenture or the Securities, provided further that, with respect to any global Security, nothing herein shall prevent the Company, the Trustee, or any agent of the Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by any Depositary, as a Holder, with respect to such global Security or impair, as between such Depositary and owners of beneficial interests in such global Security, the operation of customary practices governing the exercise of the rights of such Depositary (or its nominee) as Holder of such global Security.

SECTION 310. Cancellation.

All Securities and coupons surrendered for payment, redemption, repayment at the option of the Holder, registration of transfer or exchange or for credit against any current or future sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All Securities and coupons so delivered to the Trustee shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. If the Company shall so acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are surrendered to the Trustee for cancellation. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures and certification of their disposal delivered to the Company unless by Company Order the Company shall direct that cancelled Securities be returned to it.

 

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SECTION 311. Computation of Interest.

Except as otherwise specified as contemplated by Section 301 with respect to any Securities, interest, if any, on the Securities shall be computed on the basis of a 360 day year of twelve 30 day months. Solely for the purposes of the Interest Act (Canada), the yearly rate of interest to which interest calculated under a Security for a period of less than one year on the basis of a year of 360 days consisting of twelve 30 day periods (the “ calculation period ”) is equivalent is such rate of interest multiplied by a fraction of which (i) the numerator is the product of (A) the actual number of days in the year commencing on the first day of such period, multiplied by (B) the sum of (y) the product of 30 multiplied by the number of complete months elapsed in such period and (z) the actual number of days elapsed in any incomplete month in such period; and (ii) the denominator is the product of (A) 360 multiplied by (B) the actual number of days in such period.

SECTION 312. Currency and Manner of Payments in Respect of Securities.

(a) With respect to Registered Securities of any series not permitting the election provided for in paragraph (b) below or the Holders of which have not made the election provided for in paragraph (b) below, and with respect to Bearer Securities of any series, except as provided in paragraph (d) below, payment of the principal of (and premium, if any) and interest, if any, on any Registered or Bearer Security of such series will be made in the Currency in which such Registered Security or Bearer Security, as the case may be, is payable. The provisions of this Section 312 may be modified or superseded with respect to any Securities pursuant to Section 301.

(b) It may be provided pursuant to Section 301 with respect to Registered Securities of any series that Holders shall have the option, subject to paragraphs (d) and (e) below, to receive payments of principal of (or premium, if any) or interest, if any, on such Registered Securities in any of the Currencies which may be designated for such election by delivering to the Trustee a written election with signature guarantees and in the applicable form established pursuant to Section 301, not later than the close of business on the Election Date immediately preceding the applicable payment date. If a Holder so elects to receive such payments in any such Currency, such election will remain in effect for such Holder or any transferee of such Holder until changed by such Holder or such transferee by written notice to the Trustee (but any such change must be made not later than the close of business on the Election Date immediately preceding the next payment date to be effective for the payment to be made on such payment date and no such change of election may be made with respect to payments to be made on any Registered Security of such series with respect to which an Event of Default has occurred or with respect to which the Company has deposited funds pursuant to Article Four or Fourteen or with respect to which a notice of redemption has been given by the Company or a notice of option to elect repayment has been sent by such Holder or such transferee). Any Holder of any such Registered Security who shall not have delivered any such election to the Trustee not later than the close of business on the applicable Election Date will be paid the amount due on the applicable payment date in the relevant Currency as provided in Section 312(a). The Trustee shall notify the Exchange Rate Agent as soon as

 

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practicable after the Election Date of the aggregate principal amount of Registered Securities for which Holders have made such written election.

(c) Unless otherwise specified pursuant to Section 301, if the election referred to in paragraph (b) above has been provided for pursuant to Section 301, then, unless otherwise specified pursuant to Section 301, not later than the fourth Business Day after the Election Date for each payment date for Registered Securities of any series, the Exchange Rate Agent will deliver to the Company a written notice specifying, in the Currency in which Registered Securities of such series are payable, the respective aggregate amounts of principal of (and premium, if any) and interest, if any, on the Registered Securities to be paid on such payment date, specifying the amounts in such Currency so payable in respect of the Registered Securities as to which the Holders of Registered Securities of such series shall have elected to be paid in another Currency as provided in paragraph (b) above. If the election referred to in paragraph (b) above has been provided for pursuant to Section 301 and if at least one Holder has made such election, then, unless otherwise specified pursuant to Section 301, on the second Business Day preceding such payment date the Company will deliver to the Trustee for such series of Registered Securities an Exchange Rate Officer’s Certificate in respect of the Dollar or Foreign Currency payments to be made on such payment date. Unless otherwise specified pursuant to Section 301, the Dollar or Foreign Currency amount receivable by Holders of Registered Securities who have elected payment in a Currency as provided in paragraph (b) above shall be determined by the Company on the basis of the applicable Market Exchange Rate in effect on the third Business Day (the “ Valuation Date ”) immediately preceding each payment date, and such determination shall be conclusive and binding for all purposes, absent manifest error.

(d) If a Conversion Event occurs with respect to a Foreign Currency in which any of the Securities are denominated or payable other than pursuant to an election provided for pursuant to paragraph (b) above, then with respect to each date for the payment of principal of (and premium, if any) and interest, if any, on the applicable Securities denominated or payable in such Foreign Currency occurring after the last date on which such Foreign Currency was used (the “ Conversion Date ”), the Dollar shall be the Currency of payment for use on each such payment date. Unless otherwise specified pursuant to Section 301, the Dollar amount to be paid by the Company to the Trustee and by the Trustee or any Paying Agent to the Holders of such Securities with respect to such payment date shall be the Dollar Equivalent of the Foreign Currency as determined by the Exchange Rate Agent in the manner provided in paragraph (f) below.

(e) Unless otherwise specified pursuant to Section 301, if the Holder of a Registered Security denominated in any Currency shall have elected to be paid in another Currency as provided in paragraph (b) above, and a Conversion Event occurs with respect to such elected Currency, such Holder shall receive payment in the Currency in which payment would have been made in the absence of such election; and if a Conversion Event occurs with respect to the Currency in which payment would have been made in the absence of such election, such Holder shall receive payment in Dollars as provided in paragraph (d) above.

 

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(f) The “ Dollar Equivalent of the Foreign Currency ” shall be determined by the Exchange Rate Agent and shall be obtained for each subsequent payment date by converting the specified Foreign Currency into Dollars at the Market Exchange Rate on the Conversion Date.

(g) For purposes of this Section 312, “ Election Date ” shall mean the date for any series of Registered Securities as specified pursuant to clause (13) of Section 301 by which the written election referred to in paragraph (b) above may be made.

All decisions and determinations of the Exchange Rate Agent regarding the Dollar Equivalent of the Foreign Currency and the Market Exchange Rate as specified above shall be in its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Company, the Trustee and all Holders of such Securities denominated or payable in the relevant Currency. The Exchange Rate Agent shall promptly give written notice to the Company and the Trustee of any such decision or determination.

In the event that the Company determines in good faith that a Conversion Event has occurred with respect to a Foreign Currency, the Company will immediately give written notice thereof to the Trustee and to the Exchange Rate Agent (and the Trustee will promptly thereafter give notice in the manner provided for in Section 106 to the affected Holders) specifying the Conversion Date.

The Trustee shall be fully justified and protected in relying and acting upon information received by it from the Company and the Exchange Rate Agent and shall not otherwise have any duty or obligation to determine the accuracy or validity of such information independent of the Company or the Exchange Rate Agent.

SECTION 313. Appointment and Resignation of Successor Exchange Rate Agent.

(a) Unless otherwise specified pursuant to Section 301, if and so long as the Securities of any series (i) are denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long as it is required under any other provision of this Indenture, then the Company will maintain with respect to each such series of Securities, or as so required, at least one Exchange Rate Agent. The Company will cause the Exchange Rate Agent to make the necessary foreign exchange determinations at the time and in the manner specified pursuant to Section 301 for the purpose of determining the applicable rate of exchange and, if applicable, for the purpose of converting the issued Currency into the applicable payment Currency for the payment of principal (and premium, if any) and interest, if any, pursuant to Section 312.

(b) The Company shall have the right to remove and replace from time to time the Exchange Rate Agent for any series of Securities. No resignation of the Exchange Rate Agent and no appointment of a successor Exchange Rate Agent pursuant to this Section shall become effective until the acceptance of appointment by the successor Exchange Rate Agent as evidenced by a written instrument delivered to the Company and the Trustee.

 

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(c) If the Exchange Rate Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Exchange Rate Agent for any cause with respect to the Securities of one or more series, the Company, by or pursuant to a Board Resolution, shall promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to the Securities of that or those series (it being understood that any such successor Exchange Rate Agent may be appointed with respect to the Securities of one or more or all of such series and that, unless otherwise specified pursuant to Section 301, at any time there shall only be one Exchange Rate Agent with respect to the Securities of any particular series that are originally issued by the Company on the same date and that are initially denominated and/or payable in the same Currency).

ARTICLE FOUR

SATISFACTION AND DISCHARGE

SECTION 401. Satisfaction and Discharge of Indenture.

This Indenture shall upon a Company Request cease to be of further effect with respect to any series of Securities specified in such Company Request (except as to any surviving rights of registration of transfer or exchange of Securities of such series expressly provided for herein or pursuant hereto and any right to receive Additional Amounts as contemplated by Section 1005) and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series when

(1) either

(A) all Securities of such series theretofore authenticated and delivered and all coupons, if any, appertaining thereto (other than (i) coupons appertaining to Bearer Securities surrendered for exchange for Registered Securities and maturing after such exchange, whose surrender is not required or has been waived as provided in Section 305, (ii) Securities and coupons of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306, (iii) coupons appertaining to Securities called for redemption and maturing after the relevant Redemption Date, whose surrender has been waived as provided in Section 1106, and (iv) Securities and coupons of such series for whose payment money has theretofore been deposited in trust with the Trustee or any Paying Agent or segregated and held in trust by the Company and thereafter repaid to the Company, as provided in Section 1003) have been delivered to the Trustee for cancellation; or

(B) (1) all Securities of such series and, in the case of (i) or (ii) below, any coupons appertaining thereto not theretofore delivered to the Trustee for cancellation

(i) have become due and payable, or

(ii) will become due and payable at their Stated Maturity within one year, or

 

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(iii) if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,

and the Company, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose an amount in the Currency in which the Securities of such series are payable, sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest, if any, to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;

(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company in respect of such series; and

(3) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with.

Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 607, the obligations of the Trustee to any Authenticating Agent under Section 612 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003 shall survive.

SECTION 402. Application of Trust Money.

Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Securities, the coupons and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest, if any, for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.

ARTICLE FIVE

REMEDIES

SECTION 501. Events of Default.

Event of Default ”, wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or

 

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governmental body), unless such event is specifically deleted or modified in or pursuant to a supplemental indenture, Board Resolution or Officer’s Certificate establishing the terms of such series pursuant to Section 301 of this Indenture:

(1) default in the payment of any interest on any Security of that series, or any related coupon, when such interest or coupon becomes due and payable, and continuance of such default for a period of 30 days; or

(2) default in the payment of the principal of (or premium, if any, on) any Security of that series when it becomes due and payable; or

(3) default in the performance, or breach, of any covenant or warranty of the Company in this Indenture in respect of the Securities of that series (other than a covenant or warranty a default in the performance of which, or the breach of which, is specifically dealt with elsewhere in this Indenture), and continuance of such default or breach for a period of 60 days after the receipt by the Company of written notice specifying such default or breach, and requiring it to be remedied and stating that such notice is a “ Notice of Default ” hereunder (i) to the Company (attention of the General Counsel to the Company via facsimile, with a hard copy then sent, by registered or certified mail) by the Trustee or (ii) to the Company (in the same manner) and the Trustee by the Holders of at least 25% in principal amount of all Outstanding Securities of any series affected thereby; or

(4) if an event of default (as defined in any indenture or instrument under which the Company or any of its Restricted Subsidiaries has at the time of this Indenture or shall thereafter have outstanding any indebtedness for borrowed money) shall happen and be continuing, or the Company or any of its Restricted Subsidiaries shall have failed to pay principal amounts with respect to such indebtedness at maturity and such event of default or failure to pay shall result in such indebtedness being declared due and payable or otherwise being accelerated, in either event so that an amount in excess of the greater of $75,000,000 and 2% of the Shareholders’ Equity of the Company shall be or become due and payable upon such declaration or otherwise accelerated prior to the date on which the same would otherwise have become due and payable (the “ Accelerated Indebtedness ”), and such acceleration shall not be rescinded or annulled, or such event of default or failure to pay under such indenture or instrument shall not be remedied or cured, whether by payment or otherwise, or waived by the holders of such Accelerated Indebtedness, then (a) if the Accelerated Indebtedness shall be as a result of an event of default which is not related to the failure to pay principal or interest on the terms, at the times and on the conditions set out in any such indenture or instrument, it shall not be considered an Event of Default for purposes of this Indenture until 30 days after such indebtedness has been accelerated, or (b) if the Accelerated Indebtedness shall occur as a result of such failure to pay principal or interest or as a result of an event of default which is related to the failure to pay principal or interest on the terms, at the times, and on the conditions set out in any such indenture or instrument, then (i) if such Accelerated Indebtedness is, by its terms, Non-Recourse Debt to the Company or its Restricted Subsidiaries, it shall not be considered an Event of Default for purposes of this Indenture; or (ii) if such Accelerated Indebtedness is recourse to the Company or its Restricted Subsidiaries, any requirement in connection with such failure to pay or event of default

 

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for the giving of notice or the lapse of time or the happening of any further condition, event or act under such other indenture or instrument in connection with such failure to pay principal or an event of default shall be applicable together with an additional seven days before being considered an Event of Default for purposes of this Indenture; or

(5) the entry of a decree or order by a court having jurisdiction in the premises adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under the Bankruptcy and Insolvency Act (Canada), the Companies ’ Creditors Arrangement Act (Canada) or any other applicable insolvency law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days; or

(6) the institution by the Company of proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) or any other applicable insolvency law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due; or

(7) any other Event of Default provided with respect to Securities of that series.

SECTION 502. Acceleration of Maturity; Rescission and Annulment.

If an Event of Default described in Section 501 with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of such affected series may, subject to any subordination provisions thereof, declare the principal amount (or, if the Securities of that series are Original Issue Discount Securities or Indexed Securities, such portion of the principal amount as may be specified in the terms of that series) of all of the Securities of that series, and all accrued and unpaid interest thereon to the date of such acceleration, to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified portion thereof) shall become immediately due and payable.

At any time after such a declaration of acceleration with respect to Securities of any series (or of all series, as the case may be) has been made, but before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided in this Article, the Holders of a majority in principal amount of the Outstanding Securities of that series (or of all series, as the case may be), by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:

 

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(1) the Company has paid or deposited with the Trustee a sum sufficient to pay in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)):

(A) all overdue interest, if any, on all Outstanding Securities of that series (or of all series, as the case may be) and any related coupons,

(B) all unpaid principal of (and premium, if any) any Outstanding Securities of that series (or of all series, as the case may be) which has become due otherwise than by such declaration of acceleration, and interest on such unpaid principal at the rate or rates prescribed therefor in such Securities,

(C) to the extent that payment of such interest is lawful, interest on overdue interest, if any, at the rate or rates prescribed therefor in such Securities, and

(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and

(2) all Events of Default with respect to Securities of that series (or of all series, as the case may be), other than the non-payment of amounts of principal of (or premium, if any, on) or interest on Securities of that series (or of all series, as the case may be) which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.

No such rescission shall affect any subsequent default or impair any right consequent thereon.

Notwithstanding the preceding paragraph, in the event of a declaration of acceleration in respect of the Securities because of an Event of Default specified in Section 501(4) shall have occurred and be continuing, such declaration of acceleration shall be automatically annulled if the indebtedness that is the subject of such Event of Default has been discharged or the holders thereof have rescinded their declaration of acceleration in respect of such indebtedness, and written notice of such discharge or rescission, as the case may be, shall have been given to the Trustee by the Company and countersigned by the holders of such indebtedness or a trustee, fiduciary or agent for such holders, within 30 days after such declaration of acceleration in respect of the Securities, and no other Event of Default has occurred during such 30-day period which has not been cured or waived during such period.

SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.

The Company covenants that if:

(1) default is made in the payment of any installment of interest on any Security and any related coupon when such interest becomes due and payable and such default continues for a period of 30 days, or

 

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(2) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof,

then the Company will, upon demand of the Trustee, pay to the Trustee for the benefit of the Holders of such Securities and coupons, the whole amount then due and payable on such Securities and coupons for principal (and premium, if any) and interest, if any, and interest on any overdue principal (and premium, if any) and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amounts as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.

If an Event of Default with respect to Securities of any series (or of all series, as the case may be) occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series (or of all series, as the case may be) by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.

SECTION 504. Trustee May File Proofs of Claim.

In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or the property of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal, premium, if any, or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,

(1) to file and prove a claim for the whole amount of principal (and premium, if any), or such portion of the principal amount of any series of Original Issue Discount Securities or Indexed Securities as may be specified in the terms of such series, and interest, if any, owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and

(2) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;

 

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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607.

Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

SECTION 505. Trustee May Enforce Claims Without Possession of Securities.

All rights of action and claims under this Indenture or the Securities or coupons may be prosecuted and enforced by the Trustee without the possession of any of the Securities or coupons or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities and coupons in respect of which such judgment has been recovered.

SECTION 506. Application of Money Collected.

Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, if any, upon presentation of the Securities or coupons, or both, as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

First : To the payment of all amounts due the Trustee under Section 607;

Second : To the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest, if any, on the Securities and coupons in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities and coupons for principal (and premium, if any) and interest, if any, respectively; and

Third : The balance, if any, to the Company or to such Person or Persons as the Company instructs in writing.

SECTION 507. Limitation on Suits.

No Holder of any Security of any series or any related coupons shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, the Securities of any series, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:

 

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(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;

(2) the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of that series in the case of any Event of Default described in Section 501, shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

(3) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;

(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and

(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority or more in principal amount of the Outstanding Securities of that series in the case of any Event of Default described in Section 501;

it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Securities of the same series, in the case of any Event of Default described in Section 501, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all Holders of Securities of the same series, in the case of any Event of Default described in Section 501.

SECTION 508. Unconditional Right of Holders to Receive Principal (Premium, if any) and Interest.

Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment, as provided herein (including, if applicable, Article Fourteen) and in such Security, of the principal of (and premium, if any) and (subject to Section 307) interest, if any, on, such Security or payment of such coupon on the respective Stated Maturities expressed in such Security or coupon (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

SECTION 509. Restoration of Rights and Remedies.

If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders of Securities and coupons shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.

 

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SECTION 510. Rights and Remedies Cumulative.

Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities or coupons is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

SECTION 511. Delay or Omission Not Waiver.

No delay or omission of the Trustee or of any Holder of any Security or coupon to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

SECTION 512. Control by Holders.

Subject to Article Six, with respect to the Securities of any series, the Holders of not less than a majority in principal amount of the Outstanding Securities of such series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, relating to or arising under Section 501, provided that in each case

(1) such direction shall not be in conflict with any rule of law or with this Indenture,

(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and

(3) the Trustee need not take any action which might involve it in personal liability or be unjustly prejudicial to the Holders of Securities of such series not consenting.

SECTION 513. Waiver of Past Defaults.

Subject to Section 502, the Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default described in Section 501, and its consequences, except a default

(1) in respect of the payment of the principal of (or premium, if any) or interest, if any, on any Security or any related coupon, or

 

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(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.

Upon any such waiver, any such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.

SECTION 514. Waiver of Stay or Extension Laws.

The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

SECTION 515. Undertaking for Costs.

All parties to this Indenture agree, and each Holder, by acceptance of a Security, shall be deemed to have agreed that, in any suit for the enforcement of any right or remedy under this Indenture, or any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, any court may, in its discretion, require the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided , however , that the provisions of this Section 515 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate Securities representing more than 10% of the aggregate principal amount of the Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of any installment of interest on any Security on or after the Stated Maturity thereof expressed in such Security or for the enforcement of the payment of the principal of such Security at the Stated Maturity therefore.

ARTICLE SIX

THE TRUSTEE

SECTION 601. Notice of Defaults.

Within 90 days after the occurrence of any Default hereunder with respect to the Securities of any series, the Trustee shall transmit in the manner and to the extent provided in TIA Section 313(c), notice of such Default hereunder known to the Trustee, unless such Default shall have been cured or waived; provided , however , that, except in the case of a Default in the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series or in the payment of any sinking fund installment with respect to Securities of such series, the

 

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Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of the Holders of Securities of such series and any related coupons, and so advises the Company in writing; and provided further , that in the case of any Default of the character specified in Section 501(3) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof.

SECTION 602. Certain Duties and Responsibilities of Trustee.

(a) The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred, shall undertake to perform with respect to the Securities of any series, such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants shall be read into this Indenture against the Trustee. If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.

(b) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:

(1) prior to the occurrence of an Event of Default and after the curing or waiving of all such Events of Default that may have occurred:

(i) the duties and obligations of the Trustee with respect to the Securities of any series shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

(ii) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture and the Trust Indenture Act;

but in the case of any such certificates or opinions that by any provision hereof or Section 314 of the TIA are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture;

(2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;

 

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(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by them in good faith in accordance with the direction of the Holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this Indenture; and

(4) notwithstanding anything contained herein to the contrary, subject to the provisions of TIA Sections 315(a) through 315(d), the Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

(c) Whether or not therein expressly so provided, except to the extent expressly provided herein to the contrary, every provision of this Indenture relating to the conduct or effecting the liability or affording protection to the Trustee, shall be subject to the provisions of this Section.

SECTION 603. Certain Rights of Trustee.

Subject to the provisions of TIA Sections 315(a) through 315(d):

(1) the Trustee may, in good faith, rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

(2) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;

(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate;

(4) before the Trustee acts or refrains from acting, the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any series or any related coupons pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

 

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(6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney;

(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;

(8) the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; and

(9) except as otherwise specifically provided herein, (i) all references in this Indenture to the Trustee shall be deemed to refer to the Trustee in its capacity as Trustee and in its capacities as Security Registrar, Authenticating Agent and Paying Agent and (ii) every provision of this Indenture relating to the conduct or affecting the liability or offering protection, immunity or indemnity to the Trustee shall be deemed to apply with the same force and effect to the Trustee acting in its capacities as Paying Agent, Authenticating Agent and Security Registrar.

SECTION 604. Trustee Not Responsible for Recitals or Issuance of Securities.

The recitals contained herein and in the Securities, except for the Trustee’s certificates of authentication, and in any coupons shall be taken as the statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or coupons, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Company are true and accurate, subject to the qualifications set forth therein. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.

SECTION 605. May Hold Securities.

The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company or of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and coupons and, subject to TIA Sections 310(b) and 311, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent. A Trustee that has resigned or was removed shall remain subject to TIA Section 311(a).

 

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SECTION 606. Money Held in Trust.

Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.

SECTION 607. Compensation and Reimbursement.

The Company agrees:

(1) to pay to the Trustee from time to time such compensation as the Trustee and the Company shall from time to time agree in writing for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and

(3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense (including, without limitation, the reasonable compensation and the expenses and disbursements of its agents and counsel) incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, the performance of its duties hereunder and/or the exercise of its rights hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.

The obligations of the Company under this Section to compensate the Trustee, to pay or reimburse the Trustee for expenses, disbursements and advances and to indemnify and hold harmless the Trustee shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture. As security for the performance of such obligations of the Company, the Trustee shall have a claim prior to the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (or premium, if any) or interest, if any, on particular Securities or any coupons.

When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 501(5), the expenses (including reasonable charges and expense of its counsel) of and the compensation for such services are intended to constitute expenses of administration under any applicable U.S. or Canadian federal, state or provincial bankruptcy, insolvency or other similar law.

The provisions of this Section shall survive the termination of this Indenture, the payment of the Securities and the resignation or removal of the Trustee.

SECTION 608. Corporate Trustee Required; Eligibility.

 

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There shall be at all times a Trustee hereunder which shall be eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined capital and surplus (together with that of its parent) of at least $50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of federal, state, territorial or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

SECTION 609. Resignation and Removal; Appointment of Successor.

(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 610.

(b) The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 610 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

(c) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of not less than a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company.

(d) If at any time:

(1) the Trustee shall acquire any conflicting interest as defined in TIA Section 310(b) and fail to comply with the provisions of TIA Section 310(b)(i), or

(2) the Trustee shall fail to comply with the provisions of the TIA Section 310(b) after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or

(3) the Trustee shall cease to be eligible under Section 608 and shall fail to resign after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or

(4) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of such Trustee or of its property shall be appointed or any public officer shall take charge or control of such Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

then, in any such case, (i) the Company may remove the Trustee with respect to all Securities or the Securities of such series, or (ii) subject to TIA Section 315(e), any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others

 

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similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities of such series and the appointment of a successor Trustee or Trustees.

(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series). If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

(f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to the Holders of Securities of such series in the manner provided for in Section 106. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.

SECTION 610. Acceptance of Appointment by Successor.

(a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.

(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute

 

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and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. Whenever there is a successor Trustee with respect to one or more (but less than all) series of securities issued pursuant to this Indenture, the terms “Indenture” and “Securities” shall have the meanings specified in the provisos to the respective definitions of those terms in Section 101 which contemplate such situation.

(c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all rights, powers and trusts referred to in paragraph (i) or (ii) of this Section, as the case may be.

(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.

SECTION 611. Merger, Conversion, Consolidation or Succession to Business.

Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same

 

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effect as if such successor Trustee had itself authenticated such Securities. In case any of the Securities shall not have been authenticated by such predecessor Trustee, any successor Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor Trustee. In all such cases such certificates shall have the full force and effect which this Indenture provides for the certificate of authentication of the Trustee; provided , however , that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Securities in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.

SECTION 612. Authorization of Authenticating Agent.

At any time when any of the Securities remain Outstanding, the Trustee may authorize an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series and the Trustee shall give written notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, in the manner provided for in Section 106. Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Any such authorization shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustee, and a copy of such instrument shall be promptly furnished to the Company. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect specified in this Section.

Any corporation into which an Authenticating Agent maybe merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.

An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at

 

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any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may authorize a successor Authenticating Agent which shall be acceptable to the Company and shall give written notice of such authorization to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, in the manner provided for in Section 106. Any successor Authenticating Agent upon acceptance of its authorization hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be authorized unless eligible under the provisions of this Section.

The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.

If an authorization with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:

Dated:                     

This is one of the Securities of the series designated and referred to in, and issued under, the within-mentioned Indenture.

 

THE BANK OF NEW YORK,
as Trustee
By  

 

  as Authenticating Agent
By  

 

  Authorized Signatory

ARTICLE SEVEN

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.

The Company will furnish or cause to be furnished to the Trustee (1) not more than 15 days after each Regular Record Date a list, in such form as the Trustee may reasonably require, of the names and addresses of Holders of Registered Securities as of such Regular Record Date; provided , however , that the Company shall not be obligated to furnish or cause to be furnished such list at any time that the list shall not differ in any respect from the most recent list furnished to the Trustee by the Company and at such times as the Trustee is acting as Security Registrar for the applicable series of Securities and (2) at such other times as the Trustee may request in writing within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished.

 

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SECTION 702. Preservation of List of Names and Addresses of Holders.

The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders of Registered Securities contained in the most recent list furnished to it as provided in Section 701 and as to the names and addresses of Holders of Registered Securities received by the Trustee in its capacity as Security Registrar for the applicable series of Securities (if acting in such capacity).

The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished.

Holders may communicate as provided in Section 312(b) of the Trust Indenture Act with other Holders with respect to their rights under this Indenture or under the Securities.

SECTION 703. Disclosure of Names and Addresses of Holders.

Every Holder of Securities or coupons, by receiving and holding the same, agrees with the Company and the Trustee that none of the Company or the Trustee or any agent of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with TIA Section 312, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under TIA Section 312(b).

SECTION 704. Reports by Trustee.

(a) Within 60 days after October 15 of each year commencing with the first October 15 after the first issuance of Securities pursuant to this Indenture, the Trustee shall transmit to the Holders of Registered Securities, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, a brief report dated as of such October 15 if required by Section 313(a) of the Trust Indenture Act.

(b) The Trustee shall comply with Sections 313(b) and 313(c) of the Trust Indenture Act.

(c) A copy of such report shall, at the time of such transmission to the Holders of Registered Securities, be filed by the Trustee with the Company (Attention: General Counsel), with each securities exchange upon which any of the Securities are listed (if so listed) and also with the Commission. The Company agrees to notify the Trustee in writing when the Securities become listed on any stock exchange.

SECTION 705. Reports by the Company.

The Company shall:

(a) file with the Trustee, within 15 days after the Company is required to file the same with the Commission, copies, which may be in electronic format, of the annual reports and of the information, documents and other reports (or copies of such portions of

 

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any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;

(b) file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations;

(c) notwithstanding that the Company may not be required to remain subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the Commission, the Company shall provide the Trustee:

(1) within 140 days after the end of each fiscal year, the information required to be contained in annual reports on Form 20-F, Form 40-F or Form 10-K as applicable (or any successor form); and

(2) within 65 days after the end of each of the first three fiscal quarters of each fiscal year, the information required to be contained in reports on Form 6-K (or any successor form) which, regardless of applicable requirements, shall, at a minimum, contain such information required to be provided in quarterly reports under the laws of Canada or any province thereof to security holders of a company with securities listed on the Toronto Stock Exchange, whether or not the Company has any of its securities so listed.

Such reports, to the extent permitted by the rules and regulations of the Commission, will be prepared in accordance with Canadian disclosure requirements and GAAP; provided , however , that the Company shall not be obligated to file such reports with the Commission if the Commission does not permit such filings;

(d) transmit to all Holders of Registered Securities, in the manner and to the extent provided in Section 313(c) of the TIA, within 15 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (a) and (b) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.

ARTICLE EIGHT

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

SECTION 801. Company May Consolidate, etc., Only on Certain Terms.

The Company shall not consolidate or amalgamate with or merge into or enter into any statutory arrangement with any other corporation, or convey, transfer or lease all or substantially all of its properties and assets to any Person, unless:

 

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(1) the entity formed by or continuing from such consolidation or amalgamation or into which the Company is merged or with which the Company enters into such statutory arrangement or the Person which acquires or leases, all or substantially all of the Company’s properties and assets (A) shall be a corporation, partnership or trust organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia or the laws of Canada or any province or territory thereof, or, if such consolidation, amalgamation, merger, statutory arrangement or other transaction would not impair the rights of Holders, in any other country, provided that if such successor entity is organized under the laws of a jurisdiction other than the United States, any state thereof or the District of Columbia, or the laws of Canada or any province or territory thereof, the successor entity assumes the Company’s obligations under the Securities and this Indenture to pay Additional Amounts, including the name of such successor jurisdiction in addition to Canada in each place that Canada appears in Section 1005 and (B) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, or shall assume by operation of law, the Company’s obligation for the due and punctual payment of the principal of (and premium, if any) and interest, if any, on all the Securities and the performance and observance of every covenant of this Indenture on the part of the Company to be performed or observed;

(2) immediately before and after giving effect to such transaction, no Default or Event of Default, shall have happened and be continuing; and

(3) the Company or such Person shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such amalgamation, statutory arrangement, consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.

This Section shall only apply to a merger, amalgamation, statutory arrangement or consolidation in which the Company is not the surviving corporation and to conveyances, leases and transfers by the Company as transferor or lessor.

SECTION 802. Successor Person Substituted.

Upon any amalgamation or consolidation by the Company with or merger by the Company into any other corporation or any conveyance, transfer or lease all or substantially all of the properties and assets of the Company to any Person in accordance with Section 801, the successor Person formed by such amalgamation or consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and in the event of any such conveyance or transfer, the Company (which term shall for this purpose mean the Person named as the “Company” in the first paragraph of this Indenture or any successor Person which shall theretofore become such in the manner described in Section 801), except in the case of a lease, shall be discharged of all obligations and covenants under this Indenture and the Securities and the coupons and may be dissolved and liquidated.

 

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SECTION 803. Securities to Be Secured in Certain Events.

If, upon any such amalgamation, consolidation or statutory arrangement of the Company with or merger of the Company into any other corporation, or upon any conveyance, lease or transfer of all or substantially all of the property of the Company to any other Person, any Restricted Property of the Company, or any Restricted Securities owned by the Company immediately prior thereto, would thereupon become subject to any Lien, then unless such Lien could be created pursuant to Section 1006 without equally and ratably securing the Securities, the Company, prior to or simultaneously with such consolidation, amalgamation, statutory arrangement, merger, conveyance, lease or transfer, will, as to such Restricted Property or Restricted Securities, secure the Securities Outstanding hereunder (together with, if the Company shall so determine, any other indebtedness of the Company now existing or hereafter created which is not subordinate to the Securities) equally and ratably with (or prior to) the indebtedness which upon such consolidation, amalgamation, merger, statutory arrangement, conveyance, lease or transfer is to become secured as to such Restricted Property or Restricted Securities by such Lien, or will cause such Securities to be so secured; provided that, for the purpose of providing such equal and ratable security, the principal amount of Original Issue Discount Securities and Indexed Securities shall mean that amount which would at the time of making such effective provision be due and payable pursuant to Section 502 and the terms of such Original Issue Discount Securities and Indexed Securities upon a declaration of acceleration of the Maturity thereof, and the extent of such equal and ratable security shall be adjusted, to the extent permitted by law, as and when said amount changes over time pursuant to the terms of such Original Issue Discount Securities and Indexed Securities.

ARTICLE NINE

SUPPLEMENTAL INDENTURES

SECTION 901. Supplemental Indentures Without Consent of Holders.

Without the consent of any Holders, the Company, when authorized by or pursuant to a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:

(1) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company contained herein and in the Securities; or

(2) to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities and any related coupons (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company; or

(3) to add any additional Events of Default (and if such Events of Default are to be for the benefit of less than all series of Securities, stating that such Events of Default are being included solely for the benefit of such series); or

 

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(4) to add to or change any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of principal of or any premium or interest on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be issued in exchange for Bearer Securities of other authorized denominations or to permit or facilitate the issuance of Securities in uncertificated form; provided that any such action shall not adversely affect the interests of the Holders of Securities of any series or any related coupons in any material respect; or

(5) to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or

(6) to secure the Securities pursuant to the requirements of Section 803 or 1006 or otherwise; or

(7) to establish the form or terms of Securities of any series as permitted by Sections 201 and 301; or

(8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 610(b); or

(9) to close this Indenture with respect to the authentication and delivery of additional series of Securities; or

(10) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Sections 401, 1402 and 1403; provided that any such action shall not adversely affect the interests of the Holders of Securities of such series and any related coupons or any other series of Securities in any material respect; or

(11) to cure any ambiguity, to correct or supplement any provision herein or in any supplemental indenture which may be inconsistent with any other provision herein or in any supplemental indenture, or to make any other provisions with respect to matters or questions arising hereunder or in any supplemental indenture; provided such action shall not adversely affect the interests of the Holders of Securities of any series and any related coupons in any material respect.

SECTION 902. Supplemental Indentures with Consent of Holders.

With the consent of the Holders of not less than a majority in principal amount of all Outstanding Securities of a series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by or pursuant to a Board Resolution, and the Trustee may enter into an indenture or indentures

 

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supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture which affect such series of Securities or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided , however , that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security of such series,

(1) change the Stated Maturity of the principal of (or premium, if any) or any installment of interest on any Security of such series, or reduce the principal amount thereof (or premium, if any) or the rate of interest, if any, thereon, or change any obligation of the Company to pay Additional Amounts contemplated by Section 1005 (except as contemplated by Section 801(1) and permitted by Section 901(1)), or reduce the amount of the principal of an Original Issue Discount Security of such series that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502 or the amount thereof provable in bankruptcy pursuant to Section 504, or adversely affect any right of repayment at the option of any Holder of any Security of such series, or change any Place of Payment where, or the Currency in which, any Security of such series or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption or repayment at the option of the Holder, on or after the Redemption Date or Repayment Date, as the case may be), or adversely affect any right to convert or exchange any Security as may be provided pursuant to Section 301 herein, or

(2) reduce the percentage in principal amount of the Outstanding Securities of such series required for any such supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions of this Indenture which affect such series or certain defaults applicable to such series hereunder and their consequences provided for in this Indenture, or reduce the requirements of Section 1504 for quorum or voting with respect to Securities of such series, or

(3) modify any of the provisions of this Section, Section 513 or Section 1009, except to increase any such percentage or to provide that certain other provisions of this Indenture which affect such series cannot be modified or waived without the consent of the Holder of each Outstanding Security of such series.

A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series. Any such supplemental indenture adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture, or modifying in any manner the rights of the Holders of Securities of such series, shall not affect the rights under this Indenture of the Holders of Securities of any other series.

It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.

 

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SECTION 903. Execution of Supplemental Indentures.

In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

SECTION 904. Effect of Supplemental Indentures.

Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

SECTION 905. Conformity with the Trust Indenture Act.

Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.

SECTION 906. Reference in Securities to Supplemental Indentures.

Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.

SECTION 907. Notice of Supplemental Indentures.

Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of Section 902, the Company shall give notice thereof to the Holders of each Outstanding Security affected, in the manner provided for in Section 106, setting forth in general terms the substance of such supplemental indenture.

ARTICLE TEN

COVENANTS

SECTION 1001. Payment of Principal (Premium, if any) and Interest.

The Company covenants and agrees for the benefit of the Holders of each series of Securities and any related coupons that it will duly and punctually pay the principal of (and premium, if any) and interest, if any, on the Securities of that series in accordance with the terms of the Securities, any coupons appertaining thereto and this Indenture. Unless otherwise

 

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specified as contemplated by Section 301 with respect to any series of Securities, any interest installments due on Bearer Securities on or before Maturity shall be payable only upon presentation and surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature.

SECTION 1002. Maintenance of Office or Agency.

If the Securities of a series are issuable only as Registered Securities, the Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange, where Securities of that series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served.

If Securities of a series are issuable as Bearer Securities, the Company will maintain (A) in New York, New York an office or agency where any Registered Securities of that series may be presented or surrendered for payment, where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange, where Securities of that series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable, where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served and where Bearer Securities of that series and related coupons may be presented or surrendered for payment in the circumstances described in the following paragraph (and not otherwise) (B) subject to any laws or regulations applicable thereto, in a Place of Payment for that series which is located outside the United States, an office or agency where Securities of that series and related coupons may be presented and surrendered for payment; provided , however , that, if the Securities of that series are listed on any securities exchange located outside the United States and such securities exchange shall so require, the Company will maintain a Paying Agent for the Securities of that series in any required city located outside the United States so long as the Securities of that series are listed on such exchange, and (C) subject to any laws or regulations applicable thereto, in a Place of Payment for that series located outside the United States an office or agency where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange, where Securities of that series that are convertible and exchangeable may be surrendered for conversion or exchange, as applicable and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served.

The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish in writing the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, except that Bearer Securities of any series and the related coupons may be presented and surrendered for payment at the offices specified in the Security, in London, and the Company hereby appoints the same as its agents to receive such respective presentations, surrenders, notices and demands.

 

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Unless otherwise specified with respect to any Securities pursuant to Section 301, no payment of principal, premium or interest on Bearer Securities shall be made at any office or agency of the Company in the United States or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States; provided , however , that, if the Securities of a series are payable in Dollars, payment of principal of (and premium, if any) and interest, if any, on any Bearer Security shall be made at the office of the Company’s Paying Agent in New York, New York if (but only if) payment in Dollars of the full amount of such principal, premium or interest, as the case may be, at all offices or agencies outside the United States maintained for such purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions.

The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind any such designation; provided , however , that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in accordance with the requirements set forth above for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. Unless otherwise specified with respect to any Securities as contemplated by Section 301 with respect to a series of Securities, the Company hereby designates as a Place of Payment for each series of Securities the Corporate Trust Office in New York, New York and initially appoints the Trustee at its Corporate Trust Office as Paying Agent in such city and as its agent to receive all such presentations, surrenders, notices and demands.

Unless otherwise specified with respect to any Securities pursuant to Section 301, if and so long as the Securities of any series (i) are denominated in a Currency other than Dollars or (ii) may be payable in a Currency other than Dollars, or so long as it is required under any other provision of the Indenture, then the Company will maintain with respect to each such series of Securities, or as so required, at least one Exchange Rate Agent.

SECTION 1003. Money for Securities Payments to Be Held in Trust.

If the Company shall at any time act as its own Paying Agent with respect to any series of Securities and any related coupons, it will, on or before each due date of the principal of (or premium, if any) or interest, if any, on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal of (or premium, if any) or interest, if any, on Securities of such series so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee in writing of its action or failure so to act.

Whenever the Company shall have one or more Paying Agents for any series of Securities and any related coupons, it will, prior to or on each due date of the principal of (or premium, if any) or interest, if any, on any Securities of that series, deposit with a Paying Agent a sum (in the Currency described in the preceding paragraph) sufficient to pay the principal (or premium, if any) or interest, if any, so becoming due, such sum to be held in trust for the benefit

 

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of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee in writing of its action or failure so to act.

The Company will cause each Paying Agent (other than the Trustee) for any series of Securities to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:

(1) hold all sums held by it for the payment of the principal of (and premium, if any) and interest, if any, on Securities of such series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;

(2) give the Trustee written notice of any default by the Company (or any other obligor upon the Securities of such series) in the making of any payment of principal of (or premium, if any) or interest, if any, on the Securities of such series; and

(3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.

The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums.

Except as provided in the Securities of any series, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (or premium, if any) or interest, if any, on any Security of any series, or any coupon appertaining thereto, and remaining unclaimed for two years (or such shorter period as may be specified in the applicable abandoned property statutes) after such principal, premium or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security or coupon shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided , however , that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in an Authorized Newspaper, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.

SECTION 1004. Statement as to Compliance.

The Company will deliver to the Trustee, within 140 days after the end of each fiscal year, a brief certificate from the Chief Executive Officer, the Chief Financial Officer or the

 

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Controller of the Company as to his or her knowledge of the Company’s compliance with all conditions and covenants under this Indenture. For purposes of this Section 1004, such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture.

SECTION 1005. Additional Amounts.

(a) Unless otherwise provided pursuant to Section 301, all payments made by or on behalf of the Company under or with respect to the Securities of any series will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the Government of Canada or of any province or territory thereof or by any authority or agency therein or thereof having power to tax (hereinafter “ Canadian Taxes ”), unless the Company is required to withhold or deduct Canadian Taxes by law or by the interpretation or administration thereof. If the Company is so required to withhold or deduct any amount for or on account of Canadian Taxes from any payment made under or with respect to the Securities, the Company will pay to each Holder as additional interest such additional amounts (“ Additional Amounts ”) as may be necessary so that the net amount received by each Holder after such withholding or deduction (and after deducting any Canadian Taxes on such Additional Amounts) will not be less than the amount the Holder would have received if such Canadian Taxes had not been withheld or deducted. However, no Additional Amounts will be payable with respect to a payment made to a Holder (such Holder, an “ Excluded Holder ”) in respect of the beneficial owner thereof:

(1) with which the Company does not deal at arm’s length for the purposes of the Income Tax Act (Canada) at the time of the making of such payment;

(2) which is subject to such Canadian Taxes by reason of the Holder being a resident, domicile or national of, or engaged in business or maintaining a permanent establishment or other physical presence in or otherwise having some connection with Canada or any province thereof otherwise than by the mere holding of Securities or the receipt of payments thereunder;

(3) which is subject to such Canadian Taxes by reason of the Holder’s failure to comply with any certification, identification, information, documentation or other reporting requirements if compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to exemption from, or a reduction in the rate of deduction or withholding of, such Canadian Taxes; or

(4) which is subject to such Canadian Taxes by reason of the legal nature of the Holder of the Securities disentitling such Holder to the benefit of an applicable treaty.

The Company will also:

 

  (i) make such withholding or deduction; and

 

  (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.

 

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The Company will furnish to the Holders of the Securities, within 60 days after the date the payment of any Canadian Taxes is due pursuant to applicable law, certified copies of tax receipts or other documents evidencing such payment by the Company.

(b) The Company will indemnify and hold harmless each Holder (other than an Excluded Holder) and, upon written request, reimburse each such Holder for the amount excluding any of Additional Amounts that have been previously been paid by the Company with respect thereto of:

(1) any Canadian Taxes so levied or imposed and paid by such Holder as a result of payments made under or with respect to the Securities;

(2) any liability (including penalties, interest and expenses) arising therefrom or with respect thereto; and

(3) any Canadian Taxes imposed with respect to any reimbursement under clause (1) or (2) in this paragraph, but excluding any such Canadian Taxes on such Holder’s net income.

At least five (5) days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Company will be obligated to pay Additional Amounts with respect to such payment, the Company will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable and specifying the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date.

Wherever in this Indenture there is mentioned, in any context, the payment of principal (and premium, if any), interest or any other amount payable under or with respect to a Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.

SECTION 1006. Limitation on Liens.

So long as any Securities are Outstanding and subject to the terms of this Indenture, the Company will not, and will not permit any of its Restricted Subsidiaries to, create, incur, assume or otherwise have outstanding any Lien securing any indebtedness for borrowed money or interest thereon (or any liability of the Company or such Restricted Subsidiaries under any guarantee or endorsement or other instrument under which the Company or such Restricted Subsidiaries are contingently liable, either directly or indirectly, for borrowed money or interest thereon), other than Permitted Liens, without also simultaneously or prior thereto securing, or causing such Restricted Subsidiaries to secure, indebtedness under this Indenture so that the Securities are secured equally and ratably with or prior to such other indebtedness or liability, except that the Company and its Restricted Subsidiaries may incur a Lien to secure indebtedness for borrowed money without securing the Securities if, after giving effect thereto, the principal amount of indebtedness for borrowed money secured by Liens created, incurred or assumed after the date hereof and otherwise prohibited by this Indenture does not exceed 10% of the Company’s Consolidated Net Tangible Assets.

 

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Notwithstanding the foregoing, transactions such as the sale (including any forward sale) or other transfer of: (i) oil, gas, minerals or other resources of a primary nature, whether in place or when produced, for a period of time until, or in an amount such that, the purchaser will realize therefrom a specified amount of money or a specified rate of return (however determined), or a specified amount of such oil, gas, minerals, or other resources of a primary nature, or (ii) any other interest in property of the character commonly referred to as a “ production payment ”, will not constitute a Lien and will not result in the Company or a Restricted Subsidiary being required to secure the Securities.

SECTION 1007. Payment of Taxes.

The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, all material taxes, assessments and governmental charges levied or imposed upon the Company or any Restricted Subsidiary or upon the income, profits or property of the Company or any Restricted Subsidiary; provided , however , that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment or charge whose amount, applicability or validity is being contested in good faith by appropriate proceedings.

SECTION 1008. Corporate Existence.

Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the rights (charter and statutory) and franchises of the Company and any Restricted Subsidiary; provided, however, that the Company shall not be required to preserve any such right or franchise if the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries as a whole.

SECTION 1009. Waiver of Certain Covenants.

The Company may, with respect to any series of Securities, omit in any particular instance to comply with any term, provision or condition which affects such series set forth in Section 803 or Sections 1006 through 1008 inclusive or, as specified pursuant to Section 301(17) for Securities of such series, in any covenants of the Company added to Article Ten pursuant to Section 301(16) or Section 301(17) in connection with Securities of such series, if before the time for such compliance the Holders of at least a majority in principal amount of all Outstanding Securities of any series, by Act of such Holders, waive such compliance in such instance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee to Holders of Securities of such series in respect of any such term, provision or condition shall remain in full force and effect.

 

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ARTICLE ELEVEN

REDEMPTION OF SECURITIES

SECTION 1101. Applicability of Article.

Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article.

SECTION 1102. Election to Redeem; Notice to Trustee.

The election of the Company to redeem any Securities shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Company, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing of such Redemption Date and of the principal amount of Securities of such series to be redeemed and shall deliver to the Trustee such documentation and records as shall enable the Trustee to select the Securities to be redeemed pursuant to Section 1103. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction.

SECTION 1103. Selection by Trustee of Securities to Be Redeemed.

If less than all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 90 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions of the principal of Securities of such series; provided , however , that no such partial redemption shall reduce the portion of the principal amount of a Security not redeemed to less than the minimum authorized denomination for Securities of such series established pursuant to Section 301.

The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.

For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.

SECTION 1104. Notice of Redemption.

Except as otherwise specified as contemplated by Section 301, notice of redemption shall be given in the manner provided for in Section 106 not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed. Failure to give notice in the manner provided in Section 106 to the Holder of any Securities designated

 

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for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other Securities or portion thereof.

All notices of redemption shall state:

(1) the Redemption Date,

(2) the Redemption Price and the amount of accrued interest to the Redemption Date payable as provided in Section 1106, if any,

(3) if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed,

(4) in case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the Holder will receive, without charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed,

(5) that on the Redemption Date, the Redemption Price and accrued interest, if any, to the Redemption Date payable as provided in Section 1106 will become due and payable upon each such Security, or the portion thereof, to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,

(6) the Place or Places of Payment where such Securities, together in the case of Bearer Securities with all coupons appertaining thereto, if any, maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price and accrued interest, if any,

(7) that the redemption is for a sinking fund, if such is the case,

(8) that, unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied by all coupons maturing subsequent to the Redemption Date or the amount of any such missing coupon or coupons will be deducted from the Redemption Price unless security or indemnity satisfactory to the Company, the Trustee and any Paying Agent is furnished, and

(9) if Bearer Securities of any series are to be redeemed and any Registered Securities of such series are not to be redeemed, and if such Bearer Securities may be exchanged for Registered Securities not subject to redemption on such Redemption Date pursuant to Section 305 or otherwise, the last date, as determined by the Company, on which such exchanges may be made.

Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company.

 

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SECTION 1105. Deposit of Redemption Price.

At or prior to 10:00 a.m. (New York, New York time) on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the Redemption Price of, and accrued interest, if any, on, all the Securities which are to be redeemed on that date.

SECTION 1106. Securities Payable on Redemption Date.

Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) (together with accrued interest, if any, to the Redemption Date), and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest, if any) such Securities shall, if the same were interest-bearing, cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided below, shall be void. Upon surrender of any such Security for redemption in accordance with said notice, together with all coupons, if any, appertaining thereto maturing after the Redemption Date, such Security shall be paid by the Company at the Redemption Price, together with accrued interest, if any, to the Redemption Date; provided , however , that installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of coupons for such interest; and provided further , that installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.

If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant coupons maturing after the Redemption Date, such Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided , however , that interest represented by coupons shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of those coupons.

 

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If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) set forth in such Security.

SECTION 1107. Securities Redeemed in Part.

Any Security which is to be redeemed only in part (pursuant to the provisions of this Article or of Article Twelve) shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.

SECTION 1108. Tax Redemption.

Unless otherwise specified pursuant to Section 301, the Company shall have the right to redeem, at any time, the Securities of a series, in whole but not in part, at a redemption price equal to the principal amount thereof together with accrued and unpaid interest to the date fixed for redemption, upon the giving of a notice as described below, if (1) the Company (or its successor) determines that (a) as a result of any change in or amendment to the laws (or any regulations or rulings promulgated thereunder) of Canada or of any political subdivision or taxing authority thereof or therein affecting taxation, or any change in official position regarding application or interpretation of such laws, regulations or rulings (including a holding by a court of competent jurisdiction), which change or amendment is announced or becomes effective on or after a date specified pursuant to Section 301, if any date is so specified, the Company has or will become obligated to pay, on the next succeeding date on which interest is due, Additional Amounts pursuant to Section 1005 or (b) on or after a date specified pursuant to Section 301, any action has been taken by any taxing authority of, or any decision has been rendered by a court of competent jurisdiction in, Canada or any political subdivision or taxing authority thereof or therein, including any of those actions specified in (a) above, whether or not such action was taken or decision was rendered with respect to the Company, or any change, amendment, application or interpretation shall be officially proposed, which, in any such case, in the Opinion of Counsel to the Company, will result in the Company becoming obligated to pay, on the next succeeding date on which interest is due, Additional Amounts with respect to any Security of such series and (2) in any such case, the Company in its business judgment determines that such obligation cannot be avoided by the use of reasonable measures available to the Company; provided , however , that (i) no such notice of redemption may be given earlier than 60 or later than 30 days prior to the earliest date on which the Company would be obligated to pay such Additional Amounts were a payment in respect of the Securities then due, and (ii) at the time such notice of redemption is given, such obligation to pay such Additional Amounts remains in effect.

 

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ARTICLE TWELVE

SINKING FUNDS

SECTION 1201. Applicability of Article.

Retirements of Securities of any series pursuant to any sinking fund shall be made in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article.

The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “ mandatory sinking fund payment ”, and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “ optional sinking fund payment ”. If provided for by the terms of Securities of any series, the cash amount of any mandatory sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.

SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.

Subject to Section 1203, in lieu of making all or any part of any mandatory sinking fund payment with respect to any Securities of a series in cash, the Company may at its option (1) deliver to the Trustee Outstanding Securities of a series (other than any previously called for redemption) theretofore purchased or otherwise acquired by the Company together in the case of any Bearer Securities of such series with all unmatured coupons appertaining thereto, and/or (2) receive credit for the principal amount of Securities of such series which have been previously delivered to the Trustee by the Company or for Securities of such series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any mandatory sinking fund payment with respect to the Securities of the same series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided , however , that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly.

SECTION 1203. Redemption of Securities for Sinking Fund.

Not less than 60 days prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) and the portion thereof, if any, which is to be satisfied by delivering or crediting Securities of that series pursuant to Section 1202 (which Securities will, if not previously delivered, accompany such certificate) and whether the Company intends to exercise its right to make a permitted optional sinking fund payment with respect to such series.

 

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Such certificate shall be irrevocable and upon its delivery the Company shall be obligated to make the cash payment or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. In the case of the failure of the Company to deliver such certificate, the sinking fund payment due on the next succeeding sinking fund payment date for that series shall be paid entirely in cash and shall be sufficient to redeem the principal amount of such Securities subject to a mandatory sinking fund payment without the option to deliver or credit Securities as provided in Section 1202 and without the right to make any optional sinking fund payment, if any, with respect to such series.

Not more than 60 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.

On or prior to 10:00 a.m. (New York, New York time) on any sinking fund payment date, the Company shall pay to the Trustee or a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) in cash a sum equal to any interest that will accrue to the date fixed for redemption of Securities or portions thereof to be redeemed on such sinking fund payment date pursuant to this Section 1203.

Notwithstanding the foregoing, with respect to a sinking fund for any series of Securities, if at any time the amount of cash to be paid into such sinking fund on the next succeeding sinking fund payment date, together with any unused balance of any preceding sinking fund payment or payments for such series, does not exceed in the aggregate $100,000, the Trustee, unless requested by the Company, shall not give the next succeeding notice of the redemption of Securities of such series through the operation of the sinking fund. Any such unused balance of moneys deposited in such sinking fund shall be added to the sinking fund payment for such series to be made in cash on the next succeeding sinking fund payment date or, at the request of the Company, shall be applied at any time or from time to time to the purchase of Securities of such series, by public or private purchase, in the open market or otherwise, at a purchase price for such Securities (excluding accrued interest and brokerage commissions, for which the Trustee or any Paying Agent will be reimbursed by the Company) not in excess of the principal amount thereof.

ARTICLE THIRTEEN

REPAYMENT AT OPTION OF HOLDERS

SECTION 1301. Applicability of Article.

Repayment of Securities of any series before their Stated Maturity at the option of Holders thereof shall be made in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article.

 

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SECTION 1302. Repayment of Securities.

Securities of any series subject to repayment in whole or in part at the option of the Holders thereof will, unless otherwise provided in the terms of such Securities, be repaid at a price equal to the principal amount thereof, together with interest, if any, thereon accrued to the Repayment Date specified in or pursuant to the terms of such Securities. The Company covenants that on or before the Repayment Date it will deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal (or, if so provided by the terms of the Securities of any series, a percentage of the principal) of and (except if the Repayment Date shall be an Interest Payment Date) accrued interest, if any, on, all the Securities or portions thereof, as the case may be, to be repaid on such date.

SECTION 1303. Exercise of Option.

Securities of any series subject to repayment at the option of the Holders thereof will contain an “Option to Elect Repayment” form on the reverse of such Securities. To be repaid at the option of the Holder, any Security so providing for such repayment, with the “Option to Elect Repayment” form on the reverse of such Security duly completed by the Holder (or by the Holder’s attorney duly authorized in writing), must be received by the Company at the Place of Payment therefor specified in the terms of such Security (or at such other place or places or which the Company shall from time to time notify the Holders of such Securities) not earlier than 45 days nor later than 30 days prior to the Repayment Date. If less than the entire principal amount of such Security is to be repaid in accordance with the terms of such Security, the principal amount of such Security to be repaid, in increments of the minimum denomination for Securities of such series, and the denomination or denominations of the Security or Securities to be issued to the Holder for the portion of the principal amount of such Security surrendered that is not to be repaid, must be specified. The principal amount of any Security providing for repayment at the option of the Holder thereof may not be repaid in part if, following such repayment, the unpaid principal amount of such Security would be less than the minimum authorized denomination of Securities of the series of which such Security to be repaid is a part. Except as otherwise may be provided by the terms of any Security providing for repayment at the option of the Holder thereof, exercise of the repayment option by the Holder shall be irrevocable unless waived by the Company.

SECTION 1304. When Securities Presented for Repayment Become Due and Payable.

If Securities of any series providing for repayment at the option of the Holders thereof shall have been surrendered as provided in this Article and as provided by or pursuant to the terms of such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall become due and payable and shall be paid by the Company on the Repayment Date therein specified, and on and after such Repayment Date (unless the Company shall default in the payment of such Securities on such Repayment Date) such Securities shall, if the same were interest-bearing, cease to bear interest and the coupons for such interest appertaining to any

 

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Bearer Securities so to be repaid, except to the extent provided below, shall be void. Upon surrender of any such Security for repayment in accordance with such provisions, together with all coupons, if any, appertaining thereto maturing after the Repayment Date, the principal amount of such Security so to be repaid shall be paid by the Company, together with accrued interest, if any, to the Repayment Date; provided , however , that coupons whose Stated Maturity is on or prior to the Repayment Date shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified pursuant to Section 301, only upon presentation and surrender of such coupons; and provided further , that, in the case of Registered Securities, installments of interest, if any, whose Stated Maturity is on or prior to the Repayment Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.

If any Bearer Security surrendered for repayment shall not be accompanied by all appurtenant coupons maturing after the Repayment Date, such Security may be paid after deducting from the amount payable therefor as provided in Section 1302 an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made as provided in the preceding sentence, such Holder shall be entitled to receive the amount so deducted; provided , however , that interest represented by coupons shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of those coupons.

If the principal amount of any Security surrendered for repayment shall not be so repaid upon surrender thereof, such principal amount (together with interest, if any, thereon accrued to such Repayment Date) shall, until paid, bear interest from the Repayment Date at the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) set forth in such Security.

SECTION 1305. Securities Repaid in Part.

Upon surrender of any Registered Security which is to be repaid in part only, the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security, without service charge and at the expense of the Company, a new Registered Security or Securities of the same series, of any authorized denomination specified by the Holder, in an aggregate principal amount equal to and in exchange for the portion of the principal of such Security so surrendered which is not to be repaid.

 

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ARTICLE FOURTEEN

DEFEASANCE AND COVENANT DEFEASANCE

SECTION 1401. Company’s Option to Effect Defeasance or Covenant Defeasance.

Except as otherwise specified as contemplated by Section 301 for Securities of any series, the provisions of this Article Fourteen shall apply to each series of Securities, and the Company may, at its option, effect defeasance (as defined below) of the Securities of or within a series under Section 1402, or covenant defeasance (as defined below) of or within a series under Section 1403 in accordance with the terms of such Securities and in accordance with this Article.

SECTION 1402. Defeasance and Discharge.

Upon the Company’s exercise of the above option applicable to this Section with respect to any Securities of or within a series, the Company shall be deemed to have been discharged from its obligations with respect to such Outstanding Securities and any related coupons on the date the conditions set forth in Section 1404 are satisfied (hereinafter, “ defeasance ”). For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Securities and any related coupons, which shall thereafter be deemed to be “Outstanding” only for the purposes of Section 1405 and the other Sections of this Indenture referred to in (A) and (B) below, and to have satisfied all its other obligations under such Securities and any related coupons and this Indenture insofar as such Securities and any related coupons are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of such Outstanding Securities and any related coupons to receive, solely from the trust fund described in Section 1404 and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on such Securities and any related coupons when such payments are due, (B) the Company’s obligations with respect to such Securities under Sections 304, 305, 306, 1002 and 1003 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 1005, (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s obligation under Section 607 and (D) this Article Fourteen. Subject to compliance with this Article Fourteen, the Company may exercise its option under this Section 1402 notwithstanding the prior exercise of its option under Section 1403 with respect to such Securities and any related coupons.

SECTION 1403. Covenant Defeasance.

Upon the Company’s exercise of the above option applicable to this Section with respect to any Securities of or within a series, the Company shall be released from its obligations under Section 803 and Sections 1006 through 1008 inclusive and, if specified pursuant to Section 301, its obligations under any other covenant, with respect to such Outstanding Securities and any related coupons on and after the date the conditions set forth in Section 1404 are satisfied (hereinafter, “ covenant defeasance ”), and such Securities and any related coupons shall thereafter be deemed not to be “Outstanding” for the purposes of any direction, waiver,

 

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consent or declaration or Act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “ Outstanding ” for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such Outstanding Securities and any related coupons, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 501(3) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Securities and any related coupons shall be unaffected thereby.

SECTION 1404. Conditions to Defeasance or Covenant Defeasance.

The following shall be the conditions to application of either Section 1402 or Section 1403 to any Outstanding Securities of or within a series and any related coupons:

(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 608 who shall agree to comply with the provisions of this Article Fourteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities and any related coupons, (A) an amount (in such Currency in which such Securities and any related coupons are then specified as payable at Stated Maturity), or (B) Government Obligations applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any), and interest, if any, under such Securities and any related coupons, money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants (which shall be expressed in a written certification thereof delivered to the Company, that is attached to an Officer’s Certificate delivered to the Trustee), to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (i) the principal of (and premium, if any) and interest, if any, on such Outstanding Securities and any related coupons on the Stated Maturity (or Redemption Date, if applicable) of such principal (and premium, if any) or installment of interest, if any, and (ii) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any related coupons on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and any related coupons; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Obligations to said payments with respect to such Securities and any related coupons. Before such a deposit, the Company may give to the Trustee, in accordance with Section 1102 hereof, a notice of its election to redeem all or any portion of such Outstanding Securities at a future date in accordance with the terms of the Securities of such series and Article Eleven hereof, which notice shall be irrevocable. Such irrevocable redemption notice, if given, shall be given effect in applying the foregoing.

 

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(2) No Default or Event of Default with respect to such Securities or any related coupons shall have occurred and be continuing on the date of such deposit or, insofar as paragraphs (5) and (6) of Section 501 are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).

(3) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound.

(4) In the case of an election under Section 1402, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of execution of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of such Outstanding Securities and any related coupons will not recognize income, gain or loss for federal income tax purposes as a result of such defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred.

(5) Notwithstanding any other provisions of this Section, such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations in connection therewith pursuant to Section 301.

(6) The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the defeasance under Section 1402 or the covenant defeasance under Section 1403 (as the case may be) have been complied with.

(7) In the case of an election under Section 1403, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States to the effect that the Holders of such Outstanding Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.

(8) Either the Company has delivered to the Trustee an Opinion of Counsel in Canada or a ruling from Canada Customs and Revenue Agency to the effect that the Holders of such Outstanding Securities will not recognize income, gain or loss for Canadian federal or provincial income tax or other tax purpose as a result of such defeasance or covenant defeasance and will be subject to Canadian federal or provincial income tax and other tax on the same amounts, in the same manner and at the same times as would have been the case had such defeasance not occurred (and for the purposes of such opinion, such Canadian counsel shall assume that Holders of the Securities include Holders who are not resident in Canada).

(9) The Company is not an “insolvent person” within the meaning of the Bankruptcy and Insolvency Act (Canada) on the date of such deposit or at any time during

 

88


the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).

(10) The Company has delivered to the Trustee an Opinion of Counsel to the effect that such deposit shall not cause the Trustee or the trust so created to be subject to the Investment Company Act of 1940, as amended.

SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.

Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations (or other property as may be provided pursuant to Section 301) (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 1405, the “Trustee”) pursuant to Section 1404 in respect of such Outstanding Securities and any related coupons shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and any related coupons and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities and any related coupons of all sums due and to become due thereon in respect of principal (and premium, if any) and interest, if any, but such money need not be segregated from other funds except to the extent required by law.

Unless otherwise specified with respect to any Security pursuant to Section 301, if, after a deposit referred to in Section 1404(1) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 312(b) or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 1404(1) has been made in respect of such Security, or (b) a Conversion Event occurs as contemplated in Section 312(d) or 312(e) or by the terms of any Security in respect of which the deposit pursuant to Section 1404(1) has been made, the indebtedness represented by such Security and any related coupons shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any) and interest, if any, on such Security as they become due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on the applicable Market Exchange Rate for such Currency in effect on the third Business Day prior to each payment date, except, with respect to a Conversion Event, for such Currency in effect (as nearly as feasible) at the time of the Conversion Event.

The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 1404 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any related coupons.

Anything in this Article Fourteen to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in Section 1404 which, in the opinion of, a nationally recognized firm of independent public

 

89


accountants (evidenced by an Officer’s Certificate) delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent defeasance or covenant defeasance, as applicable, in accordance with this Article.

SECTION 1406. Reinstatement.

If the Trustee or any Paying Agent is unable to apply any money in accordance with Section 1405 by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations under this Indenture and such Securities and any related coupons shall be revived and reinstated as though no deposit had occurred pursuant to Section 1402 or 1403, as the case may be, until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 1405; provided , however , that if the Company makes any payment of principal of (or premium, if any) or interest, if any, on any such Security or any related coupon following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities and any related coupons to receive such payment from the money held by the Trustee or Paying Agent.

ARTICLE FIFTEEN

MEETINGS OF HOLDERS OF SECURITIES

SECTION 1501. Purposes for Which Meetings May Be Called.

A meeting of Holders of one or more series of Securities may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such series.

SECTION 1502. Call, Notice and Place of Meetings.

(a) The Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 1501, to be held at such time and at such place in New York, New York, in Calgary, Alberta or in London, England as the Trustee shall determine. Notice of every meeting of Holders of one or more series of Securities, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided for in Section 106, not less than 21 nor more than 180 days prior to the date fixed for the meeting.

(b) In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding Securities of any series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in Section 1501, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place in New York, New

 

90


York in Calgary, Alberta or in London, England for such meeting and may call such meeting for such purposes by giving notice thereof as provided in paragraph (a) of this Section.

SECTION 1503. Persons Entitled to Vote at Meetings.

To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall be (1) a Holder of one or more Outstanding Securities of such series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder of Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any series shall be the Person entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.

SECTION 1504. Quorum; Action.

The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders of Securities of such series; provided , however , that, if any action is to be taken at such meeting with respect to a consent or waiver which this Indenture expressly provides may be given by the Holders of not less than a specified percentage in principal amount of the Outstanding Securities of a series, the Persons entitled to vote such specified percentage in principal amount of the Outstanding Securities of such series shall constitute a quorum. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 1502(a), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of any adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the Outstanding Securities of such series which shall constitute a quorum.

Subject to the foregoing, at the reconvening of any meeting adjourned for lack of a quorum, the Persons entitled to vote 25% in principal amount of the Outstanding Securities at the time shall constitute a quorum for the taking of any action set forth in the notice of the original meeting.

Except as limited by the proviso to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the affirmative vote of the Holders of not less than a majority in principal amount of the Outstanding Securities of such series who have cast their votes; provided , however , that, except as limited by the proviso to Section 902, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present

 

91


as aforesaid by the affirmative vote of the Holders of not less than such specified percentage in principal amount of the Outstanding Securities of such series.

Any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders of Securities of such series and the related coupons, whether or not present or represented at the meeting.

Notwithstanding the foregoing provisions of this Section 1504, if any action is to be taken at a meeting of Holders of Securities of any series with respect to any request, demand, authorization, direction, notice, consent, waiver or other action that this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage in principal amount of all Outstanding Securities affected thereby, or of the Holders of such series and one or more additional series:

(i) there shall be no minimum quorum requirement for such meeting; and

(ii) the principal amount of the Outstanding Securities of such series that vote in favor of such request, demand, authorization, direction, notice, consent, waiver or other action shall be taken into account in determining whether such request, demand, authorization, direction, notice, consent, waiver or other action has been made, given or taken under this Indenture.

SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings.

(a) Notwithstanding any provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of a series in regard to proof of the holding of Securities of such series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as its shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 104 and the appointment of any proxy shall be proved in the manner specified in Section 104 or by having the signature of the person executing the proxy witnessed or guaranteed by any trust company, bank or banker authorized by Section 104 to certify to the holding of Bearer Securities. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 104 or other proof.

(b) The Trustee shall, by an instrument in writing appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of Securities as provided in Section 1502(b), in which case the Company or the Holders of Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting.

 

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(c) At any meeting each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount of Outstanding Securities of such series held or represented by him (determined as specified in the definition of “Outstanding” in Section 101); provided , however , that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.

(d) Any meeting of Holders of Securities of any series duly called pursuant to Section 1502 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting; and the meeting may be held as so adjourned without further notice.

SECTION 1506. Counting Votes and Recording Action of Meetings.

The vote upon any resolution submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers, if any, of the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 1502 and, if applicable, Section 1504. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.

SECTION 1507. Counterparts.

This Indenture may be executed in any number of counterparts (either by facsimile or by original manual signature) each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Indenture.

*    *    *    *    *

 

93


IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.

 

EnCana Corporation
By:  

/s/ John D. Watson

Name:   John D. Watson
Title:   Executive Vice-President & Chief Financial Officer
By:  

/s/ Thomas G. Hinton

Name:   Thomas G. Hinton
Title:   Treasurer
The Bank of New York,
as Trustee
By:  

/s/ Vanessa Mack

Name:   Vanessa Mack
Title:   Assistant Vice President

 

94


EXHIBIT A

FORMS OF CERTIFICATION

EXHIBIT A-1

FORM OF CERTIFICATE TO BE GIVEN BY

PERSON ENTITLED TO RECEIVE BEARER SECURITY

OR TO OBTAIN INTEREST PAYABLE PRIOR

TO THE EXCHANGE DATE

CERTIFICATE

ENCANA CORPORATION

[Insert title of sufficient description of Securities to be delivered]

This is to certify that as of the date hereof, and except as set forth below, the above-captioned Securities held by you for our account (i) are owned by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States federal income taxation regardless of its source (“ United States person(s) ”), (ii) are owned by United States person(s) that are (a) foreign branches of United States financial institutions (financial institutions, as defined in United States Treasury Regulations Section 2.165-12(c)(1)(v) are herein referred to as “financial institutions”) purchasing for their own account or for resale, or (b) United States person(s) who acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution hereby agrees, on its own behalf or through its agent, that you may advise EnCana Corporation or its agent that such financial institution will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are owned by United States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or foreign financial institution described in clause (iii) above (whether or not also described in clause (i) or (ii)), this is to further certify that such financial institution has not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.

As used herein, “United States” means the United States of America (including the states and the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.

We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the above-captioned Securities held by

 

A-1-1


you for our account in accordance with your operating procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.

This certificate excepts and does not relate to [U.S.$] [        ] of such interest in the above-captioned Securities in respect of which we are not able to certify and as to which we understand an exchange for an interest in a permanent global Security or an exchange for and delivery of definitive Securities (or, if relevant, collection of any interest) cannot be made until we do so certify.

We understand that this certificate may be required in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.

Dated:

 

 

Name:
Title:

 

A-1-2


EXHIBIT A-2

FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CLEARSTREAM

IN CONNECTION WITH THE EXCHANGE OF A PORTION OF A

TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST

PAYABLE PRIOR TO THE EXCHANGE DATE

CERTIFICATE

ENCANA CORPORATION

[Insert title of sufficient description of Securities to be delivered]

This is to certify that based solely on written certifications that we have received in writing, by tested telex or by electronic transmission from each of the persons appearing in our records as persons entitled to a portion of the principal amount set forth below (our “Member Organizations”) substantially in the form attached hereto, as of the date hereof, [U.S.$] [        ] principal amount of the above-captioned Securities (i) is owned by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source (“ United States person(s) ”), (ii) is owned by United States person(s) that are (a) foreign branches of United States financial institutions (financial institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(l)(v) are herein referred to as “financial institutions”) purchasing for their own account or for resale, or (b) United States person(s) who acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such financial institution has agreed, on its own behalf or through its agent, that we may advise EnCana Corporation or its agent that such financial institution will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by United States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) and, to the further effect, that financial institutions described in clause (iii) above (whether or not also described in clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.

As used herein, “United States” means the United States of America (including the states and the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.

We further certify that (i) we are not making available herewith for exchange (or, if relevant, collection of any interest) any portion of the temporary global Security representing the above-captioned Securities excepted in the above-referenced certificates of Member Organizations and (ii) as of the date hereof we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member Organizations

 

A-2-1


with respect to any portion of the part submitted herewith for exchange (or, if relevant, collection of any interest) are no longer true and cannot be relied upon as of the date hereof.

We understand that this certification is required in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.

Dated:

 

[EUROCLEAR BANK S.A./N.A, as Operator of the Euroclear System]
[CLEARSTREAM]
By  

 

 

A-2-2

Exhibit 10.1

US$3,000,000,000 (OR EQUIVALENT)

EXTENDIBLE REVOLVING - TERM CREDIT FACILITY

 

 

RESTATED CREDIT AGREEMENT

AMONG

ENCANA CORPORATION

(as Borrower)

AND

THE FINANCIAL AND OTHER INSTITUTIONS NAMED HEREIN

FROM TIME TO TIME IN THEIR

CAPACITIES AS LENDERS

(as Lenders)

AND

ROYAL BANK OF CANADA

(as Agent)

Dated as of July 16, 2015

 

 

RBC CAPITAL MARKETS

CANADIAN IMPERIAL BANK OF COMMERCE

(as Co-Lead Arrangers and Joint Bookrunners)

AND

CANADIAN IMPERIAL BANK OF COMMERCE

(as Syndication Agent)

AND

BANK OF MONTREAL

THE BANK OF NOVA SCOTIA

TD SECURITIES INC.

(as Co-Arrangers and Co-Documentation Agents)

Norton Rose Fulbright Canada LLP

Blake, Cassels & Graydon LLP


TABLE OF CONTENTS

 

          Page  

ARTICLE 1 DEFINITIONS

     1   

1.1

  

Definitions

     1   

1.2

  

Headings and Table of Contents

     27   

1.3

  

References

     27   

1.4

  

Rules of Interpretation

     27   

1.5

  

Generally Accepted Accounting Principles

     27   

1.6

  

Changes in GAAP or Accounting Policies

     27   

1.7

  

Schedules

     29   

1.8

  

Certain Matters Related to Ratings Explained

     29   

1.9

  

Amendment and Restatement

     31   

ARTICLE 2 REPRESENTATIONS AND WARRANTIES

     31   

2.1

  

Representations and Warranties

     31   

2.2

  

Deemed Representation and Warranty Upon Drawdown

     34   

2.3

  

Deemed Representation and Warranty Upon Conversion or Rollover

     34   

2.4

  

Nature of Representations and Warranties

     35   

ARTICLE 3 THE CREDIT FACILITY

     35   

3.1

  

Obligations of the Lenders

     35   

3.2

  

Purpose/Certain Acquisitions

     35   

3.3

  

Drawdowns

     37   

3.4

  

LIBOR Loans

     37   

3.5

  

Bankers’ Acceptances

     38   

3.6

  

Agent’s Duties re Bankers’ Acceptances

     40   

3.7

  

Letters of Credit

     41   

3.8

  

Conversion Option

     46   

3.9

  

Rollover Option

     47   

3.10

  

Notice and Additional Repayment Requirements

     48   

3.11

  

Pro-Rata Treatment of Borrowings

     49   

3.12

  

Extension of Maturity Date

     50   

3.13

  

Swing Line Borrowings

     55   

3.14

  

Increase in Credit Facility

     58   

ARTICLE 4 REPAYMENT AND CANCELLATION

     59   

4.1

  

Repayment of Borrowings

     59   

4.2

  

Exchange Rate Fluctuations

     60   

4.3

  

Cancellation of Syndicated Commitments

     60   

4.4

  

Evidence of Indebtedness

     61   

ARTICLE 5 PAYMENT OF INTEREST AND FEES

     61   

5.1

  

Payment of Interest on Prime Loans

     61   

5.2

  

Payment of Interest on USBR Loans

     62   

5.3

  

Payment of Interest on LIBOR Loans

     62   

5.4

  

Stamping Fees for Bankers’ Acceptances

     62   


5.5

  

Issuance Fees for Letters of Credit

     63   

5.6

  

Adjustments

     63   

5.7

  

Interest on Overdue Amounts

     64   

5.8

  

Standby Fees

     64   

5.9

  

Agency Fees

     64   

5.10

  

Maximum Rate Permitted by Law

     64   

5.11

  

Interest Act

     65   

5.12

  

Nominal Rates; No Deemed Reinvestment

     65   

5.13

  

Interest on Prepayments and Repayments

     65   

ARTICLE 6 PAYMENTS

     65   

6.1

  

Time and Place of Payment

     65   

6.2

  

Currency of Payment

     66   

6.3

  

Payments Free and Clear

     66   

6.4

  

Account Debit Authorization

     67   

ARTICLE 7 CONDITIONS PRECEDENT

     67   

7.1

  

Conditions Precedent to Effectiveness

     67   

7.2

  

Conditions Precedent to all Drawdowns

     68   

7.3

  

Conditions Precedent to Conversion or Rollover

     69   

7.4

  

Waiver

     69   

ARTICLE 8 COVENANTS OF THE BORROWER

     69   

8.1

  

Covenants of the Borrower

     69   

8.2

  

Negative Covenants of the Borrower

     73   

8.3

  

Actions in Respect of Subsidiaries

     75   

ARTICLE 9 EVENTS OF DEFAULT

     76   

9.1

  

Events of Default

     76   

9.2

  

Occurrence of an Event of Default

     79   

9.3

  

Lenders’ Right to Suspend the Borrowings

     79   

9.4

  

Remedies Cumulative

     80   

9.5

  

Set-Off

     80   

9.6

  

Cash Coverage Account

     81   

9.7

  

Application and Sharing of Payments Following Acceleration

     81   

ARTICLE 10 CHANGE OF CIRCUMSTANCES

     82   

10.1

  

Market Disruption

     82   

10.2

  

Increased Costs or Reduced Income or Return Due to Change in Law

     84   

10.3

  

Illegality

     87   

10.4

  

Designation of Different Lending Office

     88   

ARTICLE 11 PAYMENT OF EXPENSES AND INDEMNITIES

     88   

11.1

  

Payment of Expenses

     88   

11.2

  

General Indemnity

     88   

ARTICLE 12 THE AGENT AND THE LENDERS

     90   

12.1

  

Authorization of Agent

     90   

12.2

  

Responsibility of Agent

     90   

12.3

  

Acknowledgement of Lenders

     90   

 

- ii -


12.4

  

Rights and Obligations of Each Lender

     91   

12.5

  

Determinations by Lenders

     91   

12.6

  

Notices between the Lenders, the Agent and the Borrower

     92   

12.7

  

Agent’s Duty to Deliver Documents Obtained from Borrower

     92   

12.8

  

Arrangements for Borrowings

     92   

12.9

  

Arrangements for Repayment of Borrowings

     93   

12.10

  

Repayment by Lenders to Agent

     93   

12.11

  

Adjustments Among Lenders

     94   

12.12

  

Lenders’ Consents to Waivers, Amendments, etc.

     95   

12.13

  

Reimbursement of Agent’s Expenses

     97   

12.14

  

Reliance by Agent on Notices, etc.

     97   

12.15

  

Relations with Borrower

     97   

12.16

  

Successor Agent

     97   

12.17

  

Change of Schedule I Reference Bank

     98   

12.18

  

Indemnity of Agent

     99   

12.19

  

Cash Collateral and Withholding from a Defaulting Lender

     99   

12.20

  

Funding if there is a Defaulting Lender

     100   

12.21

  

Amendment to this Article 12

     102   

ARTICLE 13 NOTICES

     103   

13.1

  

Method of Giving Notice

     103   

13.2

  

Change of Address

     103   

13.3

  

Deemed Receipt

     103   

ARTICLE 14 GOVERNING LAW AND JUDGMENT CURRENCY

     103   

14.1

  

Governing Law

     103   

14.2

  

Jurisdiction

     104   

14.3

  

Judgment Currency

     104   

ARTICLE 15 MISCELLANEOUS

     105   

15.1

  

Exchange and Confidentiality of Information

     105   

15.2

  

Severability

     106   

15.3

  

Amendments and Waivers

     107   

15.4

  

Survival of Representations

     107   

15.5

  

Whole Agreement

     107   

15.6

  

Term of Agreement

     107   

15.7

  

Time of Essence

     107   

15.8

  

Substitution of Lender

     107   

15.9

  

Successors and Assigns

     108   

15.10

  

AML Legislation and “Know Your Client” Requirements

     110   

15.11

  

Platform

     111   

15.12

  

Waiver of Jury Trial

     112   

15.13

  

Electronic Communications

     112   

15.14

  

Counterparts

     112   

 

- iii -


SCHEDULES

 

Schedule “A” -    Notice of Drawdown, Repayment or Cancellation of Commitment
Schedule “B” -    Notice of Drawdown by way of Bankers’ Acceptances
Schedule “C” -    Notice of Conversion
Schedule “D” -    Notice of Rollover
Schedule “E” -    Request for Extension
Schedule “F” -    Compliance Certificate
Schedule “G” -    Negative Pledge
Schedule “H” -    Power of Attorney – Bankers’ Acceptances
Schedule “I” -    Lender Transfer Agreement
Schedule “J” -    Commitments

 

- iv -


THIS RESTATED CREDIT AGREEMENT is dated as of the 16 th day of July, 2015.

AMONG:

ENCANA CORPORATION , a corporation amalgamated under the laws of Canada, having its executive office in Calgary, Alberta, Canada (the “ Borrower ”)

AND:

each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders

AND:

ROYAL BANK OF CANADA , a Canadian chartered bank having its head office in Toronto, Ontario, Canada, in its capacity from time to time as administrative agent of the Lenders hereunder (in such capacity, the “ Agent ”)

WHEREAS the Borrower, the Existing Lenders and the Agent are parties to the Existing Credit Agreement;

AND WHEREAS the Borrower has requested and the Lenders have agreed to amend and restate the Existing Credit Agreement upon the terms and conditions, and in the form, of this Agreement;

NOW THEREFORE , in consideration of the premises, the mutual covenants and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows:

ARTICLE 1

DEFINITIONS

 

1.1 Definitions

In this Agreement:

Acceleration Notice ” has the meaning ascribed thereto in Section 9.2;

Accounts ” means the accounts and records established by the Agent to record the Borrower’s liability to each of the Lenders in respect of the Borrowings and other Loan Indebtedness owing by the Borrower to each of the Lenders hereunder in accordance with Section 4.4;

Additional Compensation ” has the meaning ascribed to that term in Section 10.2;


Administrative Questionnaire ” means an administrative questionnaire in the form supplied by the Agent;

Affiliate ” means any Person which, directly or indirectly, controls, is controlled by or is under common control with another Person; and, for the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” or “under common control with”) means the power to direct or cause the direction of the management and policies of any Person, whether through the ownership of shares or other economic interests, the holding of voting rights or contractual rights or otherwise;

Agent ” means Royal when acting in its capacity as agent hereunder, and includes any successor agent appointed pursuant to Section 12.16;

Agent’s Account for Payments ” means:

 

  (i) for all payments in Canadian Dollars, the following account maintained by the Agent at its Toronto main branch, to which payments and transfers are to be effected as follows:

Royal Bank of Canada

Swift Address: XXXXXXXX

Favour: /XXXXX-XXX-XXX-X

RBC Agency Services Group

Toronto, Ontario

Ref: Encana Corporation

 

  (ii) for all payments in US Dollars, the following account maintained by the Agent at its Toronto main branch, to which payments and transfers are to be effected as follows:

JPMorgan Chase Bank, New York, New York

ABA XXXXXXXX, Swift code: XXXXXXXX

Swift Address: XXXXXXXX

Beneficiary: Favour: /XXXXX-XXX-XXX-X

RBC Agency Services Group

Toronto, Ontario

Ref: Encana Corporation

or such other places or accounts in Canada as may be stipulated by the Agent from time to time and notified in writing to the Borrower and the Lenders;

Agent’s Branch of Account ” means:

Royal Bank of Canada

RBC Agency Services Group

 

- 2 -


Royal Bank Plaza

P.O. Box 50, 200 Bay Street

12th Floor, South Tower,

Toronto, Ontario

M5J 2W7

Fax: (416) 842-4023

or such other office or branch of the Agent in Canada as the Agent may from time to time advise the Borrower and the Lenders in writing;

Agreement ” or “ Credit Agreement ” means this agreement, including Schedules “A” to “J” inclusive, and any further amendments or supplements to it;

Amendment Effective Date ” means July 16, 2015;

AML Legislation ” has the meaning given to it in Section 15.10;

Anti-Corruption Laws ” means all laws, rules, and regulations of Sanctions Authorities that apply to the Borrower and its Subsidiaries from time to time concerning or relating to bribery of government officials or public corruption;

Applicable Law ” means, with respect to any Person, property, transaction or event, and whether or not having the force of law, all applicable provisions of laws, statutes, regulations, rules, guidelines, by-laws, treaties, orders, policies, judgments, decrees and official directives of Governmental/Judicial Bodies or Persons acting under the authority of any Governmental/Judicial Body;

Applicable Pricing Margin ” means, with respect to any applicable Borrowing or the standby fees payable under Section 5.8, a rate per annum set forth opposite the applicable Debt Rating:

 

Level

  

Debt Rating

(S&P/Moody’s)

   Bankers’ Acceptances
/ LIBOR Loans /
Letters of Credit
(in bps)
     Prime Loans /
USBR Loans
(in bps)
     Standby
Fee
(in bps)
 
1    A/A2 or higher      80         0         16   
2    A-/A3      100         0         20   
3    BBB+/Baa1      120         20         24   
4    BBB/Baa2      145         45         29   
5    BBB-/Baa3      170         70         34   
6   

Lower than Level 5, or unrated by both S&P and Moody’s

     225         125         45   

provided that:

 

- 3 -


  (i) if at any time the Debt Rating assigned by one rating entity differs from the Debt Rating assigned by the other rating entity by only one level, then the Applicable Pricing Margin shall be the rate per annum opposite the higher of the two Debt Ratings;

 

  (ii) if at any time the Debt Rating assigned by one rating entity differs from the Debt Rating assigned by the other rating entity by two or more levels, then the Applicable Pricing Margin shall be the average of the rates per annum opposite those Debt Ratings;

 

  (iii) the Applicable Pricing Margin for Bankers’ Acceptances and Letters of Credit shall be determined on the date of issuance and shall be subject to adjustment in accordance with Section 5.6;

 

  (iv) with respect to Letters of Credit which are not characterized as Direct Credit Substitutes (as determined by the Fronting Bank, acting reasonably), the Applicable Pricing Margin shall be 66  2 3 % of the applicable rates described above; provided that if any such Letter of Credit is determined by the Office of the Superintendent of Financial Institutions Canada to be a Direct Credit Substitute after the issuance thereof, the Applicable Pricing Margin shall be adjusted to 100% of the applicable rates described above with retroactive effect to the date of issuance and the incremental issuance fee payable for the period from the date of issuance to the date of such determination shall be payable on the first Business Day of the next Fiscal Quarter; and

 

  (v) if either or both of S&P and Moody’s ceases to carry on the business of providing ratings of the long term debt of corporate borrowers based on creditworthiness assessments, then the provisions of Section 1.8 (and not Level 6 pricing) shall apply;

BA Equivalent Loan ” means, in relation to a Drawdown of, Conversion into or Rollover of, Bankers’ Acceptances, a Borrowing advanced by a Non-Acceptance Lender pursuant to Section 3.5(f) as part of such Drawdown, Conversion or Rollover;

BA Suspension Notice ” has the meaning given to it in Section 10.1(b)(ii);

Bankers’ Acceptance ” means either a depository bill, as defined by the Depository Bills and Notes Act (Canada), or a blank non-interest bearing bill of exchange, as defined by the Bills of Exchange Act (Canada), in either case drawn by the Borrower and accepted by a Lender as a bankers’ acceptance, as evidenced by the Lender’s endorsement thereof at the request of the Borrower pursuant to Section 3.3, 3.8, 3.9 or 3.13;

basis point ” or “ bp ” means one one-hundredth of a percent;

 

- 4 -


Borrower ” means Encana Corporation, a corporation amalgamated under the Canada Business Corporations Act , and any successor thereto permitted pursuant to Section 8.2(c);

Borrower’s Accounts ” means, for all payments in Canadian Dollars, account no. XXX-XXX-X, and, for all payments in US Dollars, account no. XXX-XXX-X, in each case maintained by the Borrower with the Agent at the Agent’s Main Branch in Calgary, Alberta, or such other account or accounts maintained by the Borrower with the Agent as the Borrower may from time to time designate and advise the Agent in writing;

Borrowing ” means (i) an advance by way of Prime Loans, (ii) an advance by way of USBR Loans, (iii) an advance by way of LIBOR Loans, (iv) an acceptance of drafts or Depository Bills to become Bankers’ Acceptances having the same issuance and maturity dates (or BA Equivalent Loans made in lieu thereof) or (v) an issuance of any Letter(s) of Credit, in each case made pursuant to a Notice of Drawdown, Notice of Conversion or Notice of Rollover, or as a result of applying Section 3.4(a), 3.5(g), 3.7(d) or 3.13(h);

Borrowing Conversion Date ” means the date on which the Borrower has elected, pursuant to Section 3.8, or is deemed pursuant to Section 3.4(a) or 3.5(g) to have elected, to convert a Borrowing (or a portion thereof) to another type of Borrowing;

Borrowing Rollover Date ” means the date on which the Borrower has elected, pursuant to Section 3.9, (i) to Rollover a LIBOR Loan (or a portion thereof) for a further LIBOR Interest Period, (ii) to Rollover a Bankers’ Acceptance (or a BA Equivalent Loan made in lieu thereof) (or a portion thereof) to a new Bankers’ Acceptance (or a BA Equivalent Loan in lieu thereof), or (iii) to Rollover a Letter of Credit (or a portion thereof) to a new or extended Letter of Credit;

Bow Office Lease ” means, collectively and individually, the Headlease, the Sublease and the Encana Indemnity and all amendments, supplements, renewals, extensions, replacements and restatements of any of the foregoing and any other agreements entered into pursuant to any of the foregoing relating to The Bow office tower or any properties ancillary thereto. For purposes of this definition, “ Headlease ” means, collectively, the lease made as of the 7th day of February, 2007 between EDP (as landlord) and Encana Leasehold Limited Partnership (“ ELLP ”) (as tenant), as assigned by EDP to Centre Street Trust pursuant to an assignment and assumption agreement dated the 8th day of February, 2007 between EDP and Centre Street Trust, as amended pursuant to letter agreements dated December 10, 2007, February 11, 2008, February 14, 2008 and February 25, 2009 among Centre Street Trust, ELLP and EDP, and as amended by a lease amending agreement made as of April 22, 2009 among, inter alia, Centre Street Trust and ELLP, as same may be further assigned or amended, restated, superseded, supplemented, extended, replaced or modified from time to time; “ Sublease ” means the Sublease with respect to a portion of the premises located in The Bow entered into between ELLP as

 

- 5 -


sublandlord and the Borrower as subtenant dated November 29, 2009 and effective on or about November 30, 2009, as such sublease may be amended, restated, superseded, supplemented, extended, replaced or modified from time to time; and “ Encana Indemnity ” means the indemnity entered into by the Borrower and Encana Developments Partnership (“ EDP ”) dated February 7, 2007, as assigned by EDP to Centre Street Trust pursuant to an assignment and assumption agreement dated the 8th day of February, 2007 between EDP and Centre Street Trust, as same may be amended, restated, superseded, supplemented, extended, replaced or modified from time to time;

Branch of Account ” means, with respect to each Lender, the branch or office of such Lender at the address set forth in such Lender’s Administrative Questionnaire provided to the Agent or such other branch or office in Canada as such Lender may from time to time advise the Borrower and the Agent in writing; provided that, for purposes of delivering any notice required to be delivered by the Agent to a Lender pursuant to Section 12.8 and for purposes of effecting any payments to a Lender in connection with this Agreement, a Lender may specify to the Borrower and the Agent in writing any other branch or office of such Lender in Canada, and such branch or office shall thereafter be the Branch of Account of such Lender for such purpose;

Business Day ” means a day, excluding Saturday and Sunday, on which Canadian chartered banks are open for business in Calgary, Alberta, Canada and Toronto, Ontario, Canada and, in respect of any payments in US Dollars, a day on which banking institutions are also open for business in New York, New York, USA and, if such matter relates to any determination of LIBOR or a Borrowing or payment in respect of LIBOR Loans, a day on which dealings in US Dollars may be carried on by and between banks in the London interbank market;

Canadian Dollars ”, “ Cdn. Dollar ” and the symbol “ Cdn. $ ” each mean lawful currency of Canada;

Capital Adequacy Guidelines ” means the capital adequacy guidelines from time to time issued by the Office of the Superintendent of Financial Institutions Canada or any other governmental agency or regulatory authority in Canada regulating or having jurisdiction with respect to any Lender;

Capital Lease ” means, at any time, any lease or other arrangement providing for the right of the lessee thereunder to use property, real or personal, moveable or immovable (whether or not such lease or other arrangement is intended as security), and in respect of which the present value of the minimum rental commitment or other amounts payable by the lessee thereunder would, in accordance with GAAP, be capitalized on a balance sheet of the lessee thereunder; provided that any real property leases entered into before December 31, 2010 (including the Bow Office Lease) and any leases that would have been characterized as operating leases under GAAP as in effect on December 31, 2010 shall be deemed to be operating leases and shall be excluded from this definition;

 

- 6 -


Cash Coverage Account ” means an account maintained by the Agent (i) which bears interest for the Borrower’s account at the rates prevailing at the time of deposit for deposits of similar amounts and for similar terms, (ii) which contains amounts received by the Agent from the Borrower pursuant to Section 3.10(c), 3.10(d), 4.2 or 9.6 and (iii) from which the Borrower shall have no withdrawal rights or other entitlement to such amounts (except for any accrued interest thereon unless such interest is required to yield the face amount of any Bankers’ Acceptances) to the extent and for so long as such amounts may be required to satisfy any unmatured or contingent obligations or liabilities of the Borrower to the Agent and the Lenders pursuant to the above sections or are actually used to satisfy any such obligations and liabilities pursuant to the above sections; and, for the purposes hereof and to the foregoing extent, each such account shall be considered to be the Agent’s or Lender’s account and not the Borrower’s account;

CDOR One Month Rate ” means, on any day, the annual rate of interest determined by the Agent as being the arithmetic average of the “BA 1 mth” rate per annum applicable to Canadian Dollar bankers’ acceptances displayed and identified as such on the “Reuters’ Screen CDOR Page” (as defined in the International Swap Dealers Association, Inc. 1991 definitions, as modified and amended from time to time) as at approximately 10:00 a.m. (Toronto time) on such day, or if such day is not a Business Day, then on the immediately preceding Business Day (as adjusted by the Agent in good faith after 10:00 a.m. (Toronto time) to reflect any error in a posted rate or in the posted average annual rate); provided , however , if such a rate does not appear on the Reuters’ Screen CDOR Page as contemplated, then CDOR One Month Rate, on any day, shall be the 30 day discount rate quoted to the Agent by the Schedule I Reference Bank (determined as of 10:00 a.m. (Toronto time) on such day) which would be applicable in respect of an issue of one month Bankers’ Acceptances accepted by the Schedule I Reference Bank and in an aggregate amount of Cdn. $10,000,000, and issued on such day, or if such day is not a Business Day, then on the immediately preceding Business Day; provided further that if and for so long as the long term debt of the Schedule I Reference Bank is assigned a rating of A2 or lower by Moody’s, the Borrower shall be entitled to designate another Lender for the purposes of determination of CDOR One Month Rate pursuant to the preceding proviso and CDOR One Month Rate shall be the average of (i) the rate determined in the absence of this proviso and (ii) the aforesaid rate, determined with the designated Lender substituted for the Schedule I Reference Bank;

Centralized Banking Arrangements ” means any centralized banking arrangements entered into by the Borrower and/or any of its Subsidiaries with any financial institution in the ordinary course of business for the purpose of obtaining cash management services (which arrangements may include, without limitation, the pooling and set-off of account balances between accounts belonging to different entities, the provision of guarantees or indemnities or the assumption of joint and several liabilities by one or more entities in regard to obligations of one or more other entities, or other similar arrangements);

 

- 7 -


CIBC ” means Canadian Imperial Bank of Commerce, a Canadian chartered bank;

Code ” means the United States Internal Revenue Code of 1986 , as amended from time to time, and the rules and regulations promulgated thereunder from time to time;

Commitment ” means, in relation to a Lender, such Lender’s Syndicated Commitment, Fronting Bank Commitment or Swing Line Commitment, as the context may require;

Common Equity Securities ” means the securities of a Person which are entitled to share without limitation in a distribution of the assets of such Person upon any liquidation, dissolution or winding-up of such Person;

Compliance Certificate ” means a compliance certificate substantially in the form attached hereto as Schedule “F” executed by the Borrower’s President or any Senior Financial Officer;

Consolidated Capitalization ” means, at the end of a Fiscal Quarter, and as determined on a consolidated basis in accordance with GAAP, the aggregate of:

 

  (i) Consolidated Net Worth; and

 

  (ii) Consolidated Debt;

Consolidated Debt ” means, at the end of a Fiscal Quarter and as determined on a consolidated basis in accordance with GAAP, all Financing Debt of the Borrower at such time but excluding any Financing Debt referred to in the proviso to the definition of Consolidated Debt to Consolidated Capitalization Ratio;

Consolidated Debt to Consolidated Capitalization Ratio ” means, at the end of a Fiscal Quarter, the ratio of Consolidated Debt at such date to Consolidated Capitalization at such date; provided that, for the purposes of calculating such ratio, Consolidated Debt shall exclude:

 

  (i) any Financing Debt where the Borrower or a Subsidiary has irrevocably deposited with the proper depository in trust the necessary cash or marketable debt instruments for the defeasance, redemption or satisfaction of such Financing Debt prior to its scheduled maturity date in accordance with the provisions of the indenture, agreement or other instrument governing such Financing Debt (and such deposits shall be excluded in any calculation of the Consolidated Tangible Assets); and

 

  (ii)

any new Financing Debt borrowed or issued for the purpose of repaying or satisfying any existing Financing Debt prior to its maturity date provided that (A) such existing Financing Debt matures within 12 months of the date on which the new Financing Debt is borrowed or issued, (B) such new Financing Debt will only be excluded to the extent it is deposited into a segregated

 

- 8 -


  account of the Borrower (as certified by the President or a Senior Financial Officer of the Borrower in an officer’s certificate delivered to the Agent promptly after such deposit) and (C) such deposits shall be excluded in any calculation of the Consolidated Tangible Assets. Any such deposit and the Borrower’s intention to repay such existing Financing Debt with such deposit shall be confirmed in each regularly scheduled Compliance Certificate which is delivered prior to repayment of such existing Financing Debt;

Consolidated Net Worth ” means, at the end of a Fiscal Quarter and as determined in accordance with GAAP on a consolidated basis for the Borrower, the consolidated shareholders’ equity as shown on the consolidated balance sheet of the Borrower (including, for certainty, to the extent included as shareholders’ equity on such balance sheet, preferred securities and minority interests, but excluding all amounts included in shareholders’ equity attributable to Non-Recourse Assets and without giving effect to the non-cash ceiling test impairments and other changes in aggregate of US$ 7,746,000,000 as at December 31, 2011 as a consequence of the adoption of US GAAP);

Consolidated Tangible Assets ” means, at the end of a Fiscal Quarter and as determined in accordance with GAAP on a consolidated basis for the Borrower, the total assets of the Borrower shown on the consolidated balance sheet of the Borrower (excluding (i) goodwill, trademarks, copyrights and other similar intangible assets and (ii) Non-Recourse Assets and without giving effect to the non-cash ceiling test impairments and other changes in aggregate of US$10,585,000,000 as at December 31, 2011 as a consequence of the adoption of US GAAP); provided that Consolidated Tangible Assets shall not include any deposits referred to in either (i) or (ii) of the proviso to the definition of Consolidated Debt to Consolidated Capitalization Ratio;

Conversion ” means (i) a conversion or deemed conversion of one type of Borrowing or a portion thereof into another type of Borrowing or (ii) a conversion or deemed conversion of a Swing Line Borrowing into a Syndicated Borrowing (whether of the same type or otherwise), all in accordance with the provisions of this Agreement;

Credit Facility ” means the credit facility established pursuant to Section 3.1;

Debt Ratings ” means the ratings that have been most recently announced by S&P and Moody’s (or, as applicable under Section 1.8, a Substitute Rating Entity) for any class of senior unsecured non-convertible publicly-held long term debt of the Borrower;

Default ” means any event or circumstance which, with the giving of notice, lapse of time (or both) or the fulfillment of any other event or condition (including, for certainty and as applicable, the making of a Borrowing) would become an Event of Default;

 

- 9 -


Defaulting Lender ” means any Lender, as reasonably determined by the Agent:

 

  (i) that has failed to fund any payment or its portion of any Borrowings required to be made by it hereunder or to purchase or fund any participation required to be purchased or funded by it hereunder in each case within one (1) Business Day after the date that such funding was required hereunder;

 

  (ii) that has notified the Borrower, the Agent or any Lender (verbally or in writing) that it does not intend to or is unable to comply with any of its funding obligations under this Agreement or has made a public statement to that effect or to the effect that it does not intend to or is unable to fund advances generally under credit arrangements to which it is a party;

 

  (iii) that has failed, within three (3) Business Days after request by the Agent or the Borrower, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Borrowings including participations in then outstanding Letters of Credit;

 

  (iv) that has otherwise failed to pay over to the Agent or any other Lender any other amount required to be paid by it hereunder within three (3) Business Days of the date when due, unless the subject of a good faith dispute;

 

  (v) in respect of which a Lender Insolvency Event or a Lender Distress Event has occurred in respect of such Lender or its Lender Parent; or

 

  (vi) that is generally in default of its obligations under other existing credit or loan documentation under which it has commitments to extend credit;

Depository Bill ” has the meaning ascribed thereto in the Depository Bills and Notes Act (Canada);

Direct Credit Substitutes ” has the meaning contemplated within the Capital Adequacy Guidelines;

Discount Proceeds ” means the net cash proceeds to the Borrower from the sale of Bankers’ Acceptances at the applicable Discount Rate, before deduction or payment of stamping fees to be paid to the Lenders pursuant to Section 5.4;

Discount Rate ” means:

 

  (i) with respect to an issue of Bankers’ Acceptances accepted by a Lender that is a Schedule I Bank:

 

  (A)

in the case of a standard term of one (1) month, two (2) months, three (3) months or six (6) months, the annual rate of interest determined by the Agent as being the arithmetic average of the yield rates per annum (calculated on a year of 365 days) applicable to Canadian

 

- 10 -


  Dollar bankers’ acceptances having identical issue and comparable maturity dates as the Bankers’ Acceptances proposed to be issued by the Borrower, displayed and identified as such on the “Reuters Screen CDOR Page” (as defined in the International Swap Dealers Association, Inc. 1991 definitions, as modified and amended from time to time) as at approximately 10:00 a.m. (Toronto time) on such day, or if such day is not a Business Day, then on the immediately preceding Business Day (as adjusted by the Agent in good faith after 10:00 a.m. (Toronto time) to reflect any error in a posted rate of interest or in the posted average annual rate of interest); provided , however , if such rates do not appear on the Reuters’ Screen CDOR Page as contemplated, then the Discount Rate for purposes of this paragraph (i), on any day, shall be the discount rate quoted to the Agent by the Schedule I Reference Bank (determined as of 10:00 a.m. (Toronto time) on such day) which would be applicable in respect of an issue of Canadian Dollar bankers’ acceptances accepted by the Schedule I Reference Bank having comparable face values and identical issue and comparable maturity dates as the Bankers’ Acceptances proposed to be issued by the Borrower, and issued on such day, or if such day is not a Business Day, then on the immediately preceding Business Day; provided further that if and for so long as the long term debt of the Schedule I Reference Bank is assigned a rating of A2 or lower by Moody’s, the Borrower shall be entitled to designate another Lender for the purposes of the determination of Discount Rate pursuant to the preceding proviso and the Discount Rate for purposes of this paragraph (i) shall be the average of (A) the rate determined in the absence of the proviso and (B) the aforesaid rate, determined with the designated Lender substituted for the Schedule I Reference Bank; and

 

  (B) in the case of any other term:

 

  (1) if such term is less than one (1) month, such rate of interest as may be determined by the Agent (acting reasonably); and

 

  (2) if such term is greater than one (1) month, such rate of interest as may be determined by the Agent (acting reasonably) in accordance with its customary practices by interpolating between the rates of interest determined in accordance with subparagraph (A) above for the immediately shorter and immediately longer standard terms; and

 

  (ii) with respect to an issue of Bankers’ Acceptances accepted by a Lender that is a Schedule II Bank or a Schedule III Bank, the lesser of:

 

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  (A) the arithmetic average of the yield rates per annum (calculated on a year of 365 days) quoted to the Agent by the Schedule II/III Reference Banks (determined as of 10:00 a.m. (Toronto time) on the date of determination), which rates would be applicable in respect of the purchase by the Schedule II/III Reference Banks of Canadian Dollar bankers’ acceptances accepted by the Schedule II/III Reference Banks having comparable face values and identical issue dates and comparable maturity dates as the Bankers’ Acceptances proposed to be issued by the Borrower, and issued on such day, or if such day is not a Business Day, then on the immediately preceding Business Day; and

 

  (B) the sum of the Discount Rate, determined in accordance with paragraph (i) above, and 10 bps per annum;

provided that if the Discount Rate as determined above is less than zero, then the Discount Rate shall be deemed to be zero;

Drawdown ” means an advance or deemed advance of funds or other extension of credit in accordance with the provisions of this Agreement, and for certainty includes the issuance of a Letter of Credit but does not include a Conversion or a Rollover;

Drawdown Date ” means a Business Day, at the expiration of the notice period specified pursuant to Section 3.3, on which the Borrower obtains a Drawdown;

Equivalent Amount ” in one currency (the “ First Currency ”) of an amount in another currency (the “ Other Currency ”) means, as of the date of determination, the amount of the First Currency which would be required to purchase such amount of the Other Currency at the Bank of Canada noon (Toronto time) mid-point spot rate for such currencies on such date of determination (as quoted or published from time to time by the Bank of Canada) or, if such date of determination is not a Business Day, on the Business Day immediately preceding such date of determination; provided that, in the case of any amount in US Dollars, the Equivalent Amount of such amount shall be such amount;

Event of Default ” means any of the occurrences referred to in Section 9.1 if, at the time of, or during the continuance of any such occurrence, a Borrowing is outstanding;

Excluded Taxes ” means:

 

  (i)

all taxes on, based on, measured by or with respect to the Agent’s or a Lender’s net or gross income, gains, capital, receipts, franchises, excess profits or conduct of business (unless such taxes are in lieu of any Taxes the Borrower or a Guarantor Subsidiary would otherwise be required to pay hereunder) that are taxes imposed in a jurisdiction or any political subdivision

 

- 12 -


  thereof as a consequence of the Agent or applicable Lender carrying on a trade or business or having a permanent establishment in that jurisdiction or otherwise being organized under the laws of or being a resident in that jurisdiction;

 

  (ii) all U.S. federal withholding Taxes imposed under FATCA, and any Taxes or penalties arising from a Lender’s failure to properly comply with such Lender’s obligations imposed under the Canada-United States Enhanced Tax Information Exchange Agreement Implementation Act (Canada) or the similar provisions of legislation of any other jurisdiction that has entered into an agreement with the United States of America to provide for the implementation of FATCA-based reporting in that jurisdiction; and

 

  (iii) any Taxes imposed on a payment or deemed payment by reason of the recipient not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with the Borrower or being a “specified shareholder” of the Borrower (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) at the time of payment or deemed payment, or by reason of such recipient not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with the Borrower or a “specified shareholder” of the Borrower at the time of payment or deemed payment;

Existing Credit Agreement ” means the restated credit agreement dated as of October 12 , 2011 among the Borrower, the Existing Lenders and the Agent, as amended prior to the Amendment Effective Date;

Existing Lenders ” means those financial and other institutions which are parties as “Lenders” to the Existing Credit Agreement;

Extension Date ” has the meaning ascribed to that term in Section 3.12(a);

FATCA ” means Sections 1471 through 1474 of the Code, as of the Amendment Effective Date (or any amended or successor version that is substantively comparable), any current or future regulations (whether final, temporary or proposed in final form) or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code;

Fed Funds Rate ” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the annual rates of interest on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100

 

- 13 -


of 1%) of the quotations for such day on such transactions received by the Agent from three Federal funds brokers of recognized standing selected by it;

Finance Co. ” means Encana Holdings Finance Corp., an unlimited liability company incorporated under the laws of Nova Scotia, and any successor thereto;

Financing Debt ” means, with respect to any Person and at any time, all indebtedness for borrowed money of such Person at such time and specifically includes (without duplication):

 

  (i) indebtedness of such Person arising pursuant to bankers’ acceptance facilities, note purchase facilities and commercial paper programs;

 

  (ii) indebtedness of such Person for borrowed money evidenced by and owed under a bond, note, debenture or similar instrument;

 

  (iii) all indebtedness of such Person representing the deferred purchase price of any property which, in accordance with its terms is, or after giving effect to any renewal or extension provisions of such arrangements may be, payable by such Person more than 12 months after the date of acquisition;

 

  (iv) the amounts under Capital Leases under which such Person is the lessee which, in accordance with GAAP, are capitalized on the balance sheet of such Person;

 

  (v) indebtedness of such Person arising pursuant to letters of credit or letters of guarantee securing or supporting any indebtedness referred to in the foregoing parts of this definition and in paragraph (vi) of this definition; and

 

  (vi) (y) obligations of such Person under guarantees, indemnities or other contingent obligations securing or supporting any indebtedness or other obligations of any other Person referred to in the foregoing parts of this definition, and (z) all other obligations of such Person incurred for the purpose of or having the effect of providing financial assistance to another Person to secure or support any indebtedness or other obligations of any other Person referred to in the foregoing parts of this definition, including endorsements with recourse of bills of exchange constituting or evidencing any such indebtedness or obligations (other than for collection or deposit in the ordinary course of business);

provided that Financing Debt of a Person shall not include (A) any Non-Recourse Debt of such Person, (B) indebtedness under any real property leases entered into before December 31, 2010 (including the Bow Office Lease) and any leases that would have been characterized as operating leases under GAAP as in effect on December 31, 2010 and (C) where such Person is a Wholly-Owned Subsidiary, any of the foregoing which is owed to the Borrower or another Wholly-Owned Subsidiary or owed by the Borrower to a Wholly-Owned Subsidiary;

 

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Fiscal Quarter ” means the first three (3) months of a Fiscal Year, and each successive period of three (3) months in such Fiscal Year;

Fiscal Year ” means the fiscal year as adopted by the Borrower from time to time and which is currently the one year period commencing on January 1 of each year and ending on December 31 of such year;

Fronting Bank Commitment ” means, in relation to a Fronting Bank, the amount set forth opposite such Fronting Bank’s name in the second column on Schedule “J” from time to time, as such Fronting Bank Commitment may hereafter be increased, cancelled , reduced or terminated from time to time pursuant to this Agreement;

Fronting Banks ” means, from time to time, any Lenders selected by the Borrower and the Agent which have agreed to act as a fronting bank to issue Letters of Credit up to their respective Fronting Bank Commitments; provided that with respect to any particular Letter of Credit issued hereunder, “ Fronting Bank ” shall mean the Lender which issued that Letter of Credit;

GAAP ” means generally accepted accounting principles in Canada which are in effect from time to time, unless the Borrower’s most recent audited annual or unaudited interim financial statements are not prepared in accordance with generally accepted accounting principles in Canada, in which case GAAP shall mean generally accepted accounting principles in the United States in effect from time to time;

Governmental/Judicial Body ” means:

 

  (i) any government, parliament or legislature, any regulatory or administrative authority, agency, commission or board (including any board having jurisdiction in respect of pipelines or the oil and gas industry generally) and any other statute, rule or regulation making entity having jurisdiction in the relevant circumstances;

 

  (ii) any Person to whom a government, parliament or legislature, any regulatory or administrative authority, agency, commission or board or any other statute, rule or regulation making entity referred to in paragraph (i) has delegated power or authority under a statute, rule or regulation thereof; and

 

  (iii) any judicial, administrative or arbitral court, authority, tribunal or commission having jurisdiction in the relevant circumstances;

Guarantor Subsidiary ” means, at any time, a Subsidiary which is then guaranteeing the Borrowings hereunder pursuant to a guarantee in a form acceptable to the Agent (acting reasonably);

Interest Date ” means, in respect of Borrowings by way of Prime Loans and USBR Loans, the first Business Day of each month;

 

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Investment Grade ” means a Debt Rating not lower than BBB- from S&P and Baa3 from Moody’s (or, if applicable, an equivalent Debt Rating from a Substitute Rating Entity);

LC Draft ” means any draft, bill of exchange, receipt, acceptance, demand or other request for payment presented to a bank as provided in a Letter of Credit;

Lender Distress Event ” means, in respect of a given Lender, such Lender or its Lender Parent is subject to a forced liquidation, merger, sale or other change of control supported in whole or in part by guarantees or other support (including, without limitation, the nationalization or assumption of ownership or operating control by the Government of the United States, Canada or any other Governmental/Judicial Body) or is otherwise adjudicated as, or determined by any Governmental/Judicial Body having regulatory authority over such Lender or Lender Parent or their respective assets to be, insolvent or bankrupt or deficient in meeting any capital adequacy or liquidity standard of any such Governmental/Judicial Body; provided that a Lender shall not become a Defaulting Lender solely as the result of the acquisition or maintenance of an ownership interest in such Lender or its Lender Parent (including the exercise of control over such Lender or its Lender Parent through such ownership interest) by a Governmental/Judicial Body or an instrumentality thereof;

Lender Insolvency Event ” means, in respect of a given Lender, such Lender or its Lender Parent:

 

  (i) is dissolved (other than pursuant to a consolidation, amalgamation or merger);

 

  (ii) becomes insolvent, is deemed insolvent by Applicable Law or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;

 

  (iii) makes a general assignment, arrangement or composition with or for the benefit of its creditors;

 

  (iv)

(A) institutes, or has instituted against it by a regulator, supervisor or any similar Governmental/Judicial Body with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organization or the jurisdiction of its head or home office, (x) a proceeding pursuant to which such Governmental/Judicial Body takes control of such Lender’s or Lender Parent’s assets, (y) a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy, insolvency or winding-up law or other similar law affecting creditors’ rights, or (z) a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar Governmental/Judicial Body; or (B) has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy, insolvency or winding-up law or other

 

- 16 -


  similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and such proceeding or petition is instituted or presented by a person or entity not described in clause (A) above and either (x) results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation or (y) is not dismissed, discharged, stayed or restrained in each case within fifteen (15) days of the institution or presentation thereof;

 

  (v) has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);

 

  (vi) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or a substantial portion of all of its assets;

 

  (vii) has a secured party take possession of all or a substantial portion of all of its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case, within fifteen (15) days thereafter;

 

  (viii) causes or is subject to any event with respect to it which, under the Applicable Law of any jurisdiction, has an analogous effect to any of the events specified in subparagraphs (i) to (vii) above, inclusive; or

 

  (ix) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing;

Lender Parent ” means any person that directly or indirectly controls a Lender and, for the purposes of this definition, “control” shall have the same meaning as set forth in the definition of “Affiliate” contained herein;

Lenders ” means each of the financial and other institutions named on Schedule “J” hereto as a Lender which has executed this Agreement or, as a Permitted Assignee, an agreement substantially in the form of Schedule “I”, and includes Royal in its capacity as a Lender, but excludes any such financial or other institution, the Commitment of which has been reduced to zero, and also excludes the Agent in its capacity as the Agent; and “ Lender ” means any one of such Lenders, as applicable;

Lender’s Proportion ” means, at any time and from time to time with respect to each Lender (subject to adjustment as required for Swing Line Borrowings made solely by the Swing Line Lender pursuant to Section 3.13):

 

  (i)

if there has been delivered an Acceleration Notice, or during the continuance of an Event of Default specified in Section 9.1(b) or 9.1(c), in each such case at a time during which there are Outstandings, the proportion that the amount

 

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  of such Lender’s Outstandings at such time bears to the amount of the total Outstandings of all Lenders at such time; and

 

  (ii) at any other time, the proportion that the amount of such Lender’s Syndicated Commitment at such time bears to the Total Syndicated Commitment;

Letter of Credit ” means a performance, standby or documentary letter of credit issued by the Fronting Bank at the request of the Borrower pursuant to Section 3.7;

LIBOR ” means, with respect to any LIBOR Interest Period applicable to a Borrowing by way of a LIBOR Loan:

 

  (i) in the case of a standard LIBOR Interest Period of one (1) month, two (2) months, three (3) months or six (6) months, the rate of interest per annum, based upon a year of 360 days, (rounded upwards, if necessary, to the next 1/100 of 1%) determined by the Agent to be the offered rate listed on the “LIBOR 01 Page” (or any display substituted therefor) of Reuter’s Monitor Money Rates Service (or any successor thereto designated by the Agent) that displays the ICE Benchmark Administration Limited (or its successor) Interest Settlement Rate applicable to such LIBOR Interest Period for purposes of displaying the rates at which US Dollar deposits are offered for deposit in the London interbank market) at approximately 11:00 a.m. London, England time two (2) Business Days prior to the Drawdown Date, Borrowing Conversion Date or Borrowing Rollover Date, as applicable, for such Borrowing and for the LIBOR Interest Period selected; and

 

  (ii) in the case of any other LIBOR Interest Period:

 

  (A) if such LIBOR Interest Period is less than one (1) month, such rate of interest as may be determined by the Agent (acting reasonably); and

 

  (B) if such LIBOR Interest Period is greater than one (1) month, such rate of interest as may be determined by the Agent (acting reasonably) in accordance with its customary practices by interpolating between the rates of interest appearing on the page referred to in subparagraph (i) above for the immediately shorter and immediately longer standard LIBOR Interest Periods;

provided that, (x) if such service is unavailable then LIBOR shall be determined by the Agent as the rate at which deposits of comparable term and amount are offered by it to prime banks in the London interbank market at or approximately 11:00 a.m. London, England time on such date and (y) if LIBOR as determined above is less than zero, then LIBOR shall be deemed to be zero;

LIBOR Interest Date ” means:

 

  (i) the last day of each LIBOR Interest Period; and

 

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  (ii) if the Borrower selects a LIBOR Interest Period for a period longer than three (3) months, the dates falling every three (3) months after the beginning of such LIBOR Interest Period and on the last day of such LIBOR Interest Period;

LIBOR Interest Period ” means, with respect to a Borrowing by way of a LIBOR Loan, the period commencing with and including the Drawdown Date, Borrowing Conversion Date or Borrowing Rollover Date, as applicable, as the first day of the LIBOR Interest Period for that Borrowing, and ending on (but, for greater certainty, excluding for the purpose of interest calculation) a day which is not sooner than the numerically corresponding day one (1) calendar month thereafter and not later than the numerically corresponding day six (6) calendar months thereafter, or such other day as is agreed to by all applicable Lenders, selected by the Borrower upon giving to the Agent a Notice of Drawdown, Notice of Conversion or Notice of Rollover, as applicable, so long as deposits in US Dollars for such period are readily available to the Lenders in the London interbank market; provided further that:

 

  (i) if any such LIBOR Interest Period commences on a day of a calendar month for which there is no numerically corresponding day in the calendar month at the end of the LIBOR Interest Period, such LIBOR Interest Period shall end on the last Business Day of such subsequent calendar month; and

 

  (ii) if any such LIBOR Interest Period ends on a day which is not a Business Day, such LIBOR Interest Period shall end the next Business Day unless such Business Day falls in the next calendar month, in which case such LIBOR Interest Period shall end on the immediately preceding Business Day;

LIBOR Loans ” means the loans made available by the Lenders to the Borrower pursuant to Sections 3.3, 3.8 or 3.9, which the Borrower has elected to denominate in US Dollars and has agreed to pay interest thereon in accordance with Section 5.3;

LIBOR Suspension Notice ” has the meaning given to it in Section 10.1(a)(iii);

Loan Documents ” means this Agreement (including Schedules “G”, “H” and “J”), the letter agreements referred to in Sections 3.7(g) and 5.9 and, when executed and delivered, Schedules “A”, “B”, “C”, “D”, “E”, “F” and “I”;

Loan Indebtedness ” means the aggregate, at any time, of:

 

  (i) all Outstandings; and

 

  (ii) all fees and other amounts payable by the Borrower hereunder or under the other Loan Documents,

but, for certainty, shall not include contingent obligations under the Loan Documents not then due or owing, including such obligations under indemnities contained therein;

 

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Loans ” means Prime Loans, USBR Loans and LIBOR Loans;

Majority Lenders ” means any Lender or group of Lenders having Lender’s Proportions, in aggregate, of 50.1% or more;

Material Adverse Effect ” means any act, event or condition that has a material adverse effect on (i) the consolidated financial condition and operations of the Borrower and its Subsidiaries, taken as a whole, (ii) the ability of the Borrower to pay any amounts owing from time to time under this Agreement or (iii) the validity or enforceability of this Agreement, provided that in no event shall fluctuations in commodity prices for oil and/or natural gas be regarded as an act, event or condition that in and of itself has a Material Adverse Effect;

Material Subsidiary ” means from time to time (i) any Subsidiary of the Borrower which, on a consolidated basis for such Subsidiary and its Subsidiaries, has assets which have a value, as reflected on the consolidated balance sheet of the Borrower most recently delivered to the Lenders hereunder, in excess of 10% of the value of the consolidated assets of the Borrower and Subsidiaries as reflected therein (without giving effect to the non-cash ceiling test impairments and other changes as at December 31, 2011 as a consequence of the adoption of US GAAP), and (ii) any other Subsidiary so designated by the Borrower;

Maturity Date ” means, with respect to a Commitment, July 16, 2020, as such date may, from time to time, be extended pursuant to Section 3.12 in respect of such Commitment;

Moody’s ” means Moody’s Investors Service, Inc., its Affiliates and their respective successors;

Negative Pledge ” means the covenants of the Borrower set forth in Schedule “G”;

Non-Acceptance Discount Rate ” means, for any day, the simple average of the Discount Rate in paragraph (i) of the definition of Discount Rate and the Discount Rate in paragraph (ii) of such definition;

Non-Acceptance Lender ” means a Lender which does not accept bankers’ acceptances in the ordinary course of its business;

Non-Defaulting Lender ” means a Lender that is not a Defaulting Lender;

Non-Guarantor Subsidiary ” means, at any time, a Subsidiary which is not then a Guarantor Subsidiary;

Non-Recourse Assets ” means the Borrower’s proportion (determined on a consolidated basis in accordance with GAAP) of assets owned directly or indirectly by the Borrower or a Subsidiary which meet all of the following conditions: (i) the assets represent a specific Project, whether alone or in association with others, (ii)

 

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debt for borrowed money is owed to one or more Non-Recourse Creditor(s), was incurred for the purpose of financing the costs of such Project and the recourse of such creditors in relation to such debt is limited to the assets of such Project (including equity interests and investments in any Non-Recourse Subsidiary), and (iii) neither the Borrower nor any Subsidiary is liable or has issued a guarantee in respect of any such debt, other than any such debt or any such guarantee in respect of which the recourse thereunder is limited to the assets of such Project (including equity interests and investments in any Non-Recourse Subsidiary); provided that upon all such debt to all such creditors in respect of any such assets being repaid, such assets shall then cease to be Non-Recourse Assets;

Non-Recourse Creditor ” means an arm’s length creditor whose recourse is limited to Non-Recourse Assets, to the exclusion of any and all other recourse, whether directly or indirectly, by way of guarantees or otherwise, against the Borrower or any Subsidiary in respect of any such debt or liability referred to in the definition of Non-Recourse Assets except for non-recourse guarantees and/or non-recourse pledges which are limited in recourse to equity interests and investments in any Non-Recourse Subsidiary;

Non-Recourse Debt ” means debt incurred for the purpose of financing the costs of a specific Project and due or otherwise owing to a Non-Recourse Creditor;

Non-Recourse Subsidiary ” means a Subsidiary whose material assets are Non-Recourse Assets;

Notice of Conversion ” means a notice substantially in the form of Schedule “C” to this Agreement, duly completed with all information necessary to effect a Conversion, given or to be given by the Borrower to the Agent pursuant to this Agreement;

Notice of Drawdown ” means a notice substantially in the form of Schedule “A” or, in the case of a Drawdown by way of Bankers’ Acceptances (or BA Equivalent Loans in lieu thereof), Schedule “B” to this Agreement, duly completed with all information necessary to effect a Drawdown, given or to be given by the Borrower to the Agent pursuant to this Agreement;

Notice of Extension ” means a written notice by the Agent, on behalf of some or all of the Lenders for a period of not more than five (5) years from the Extension Date, to the Borrower pursuant to Section 3.12 extending the then current Maturity Date in respect of the Commitments of such Lenders;

Notice of Rollover ” means a notice substantially in the form of Schedule “D” to this Agreement, duly completed with all information necessary to effect a Rollover, given or to be given by the Borrower to the Agent pursuant to this Agreement;

 

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OFAC ” means the Office of Foreign Assets Control of the United States Treasury Department;

Outstanding Principal ” means, at any time, the Equivalent Amount in US Dollars of the Outstandings at such time disregarding any due and unpaid interest;

Outstandings ” at any time means the aggregate at such time of:

 

  (i) the principal amounts outstanding of, and all due and unpaid interest in respect of, Prime Loans;

 

  (ii) the principal amounts outstanding of, and all due and unpaid interest in respect of, USBR Loans and LIBOR Loans;

 

  (iii) the amounts payable at maturity of all outstanding Bankers’ Acceptances and BA Equivalent Loans; and

 

  (iv) the aggregate undrawn face amount of all outstanding Letters of Credit;

provided that (A) for the purpose of calculating the Outstandings owing to any Lender at any time, such Lender shall be deemed to have issued its Lender’s Proportion of all outstanding Letters of Credit for which it has a reimbursement or indemnification obligation in the circumstances contemplated in Section 3.7(d) and (B) where the context requires, the Outstandings shall mean only those Outstandings owing to a particular Lender;

Permitted Assignee ” has the meaning ascribed thereto in Section 15.9(a);

Person ” means a natural person, partnership, corporation, joint stock company, unlimited liability company, limited liability company, trust, unincorporated association or other entity and, as and when applicable, the heirs, executors, administrators, successors or other legal representative, as the case may be, of such entity;

Prime Loans ” means the loans made available by the Lenders to the Borrower pursuant to Section 3.3, 3.8, 3.9 or 3.13 with respect to which the Borrower has agreed to pay interest thereon in accordance with Section 5.1 or which are made available to the Borrower by the Lenders as a result of applying Section 3.5(g), 3.7(d) or 3.13(h);

Prime Rate ” means, with respect to outstanding Prime Loans, on any day, the greater of:

 

  (i)

the annual rate of interest most recently announced from time to time by the Schedule I Reference Bank (and, if not the Agent, notified to the Agent) as being its reference rate then in effect for determining interest rates on

 

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  Canadian Dollar denominated commercial loans made by the Schedule I Reference Bank in Canada; and

 

  (ii) the annual rate of interest equal to the aggregate of CDOR One Month Rate and 0.75% per annum;

provided that if all such rates are equal, then the “Prime Rate” shall be the rate specified in (i) above;

Project ” means the acquisition, construction and development of previously undeveloped or newly acquired assets forming an economic unit capable of generating sufficient cash flow, on the basis of reasonable initial assumptions, to cover the operating costs and debt service required to finance the undertaking relating to such assets over a period of time which is less than the projected economic life of the assets, and includes any commercial operation for which such assets were so acquired, constructed or developed and which is subsequently carried on with such assets by such economic unit and, for certainty, includes each such Project which exists at the Amendment Effective Date or which is acquired, created or comes into existence after the Amendment Effective Date;

Public Material Subsidiary ” means any Material Subsidiary whose Common Equity Securities have been listed on any stock exchange at all times since such Material Subsidiary first became a Material Subsidiary;

Request for Extension ” means a written request by the Borrower to the Agent on behalf of some or all of the Lenders pursuant to Section 3.12 requesting such Lenders to issue a Notice of Extension in respect of the Commitments of such Lenders, in the form attached as Schedule “E”;

Restricted Subsidiary ” has the meaning ascribed thereto in the Negative Pledge;

Rollover ” means:

 

  (i) with respect to any LIBOR Loan, the continuation of all or a portion of such Loan for an additional LIBOR Interest Period subsequent to the initial or any subsequent LIBOR Interest Period applicable thereto;

 

  (ii) with respect to any Bankers’ Acceptance (or BA Equivalent Loan made in lieu thereof), the issuance of new Bankers’ Acceptances (or making of new BA Equivalent Loans) in respect of all or any portion of such Bankers’ Acceptance (or BA Equivalent Loans made in lieu thereof) on the maturity date thereof; and

 

  (iii)

with respect to any Letter of Credit, the extension or replacement of an existing Letter of Credit in respect of all or any portion of such Letter of Credit effective on the expiry date thereof including, for certainty, any extension referred to in the proviso in Section 3.9(c); provided that the

 

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  beneficiary thereof (including any successor or permitted assigns thereof) remains the same, the maximum amount available to be drawn thereunder is not increased, the currency in which the same is denominated remains the same and the terms upon which the same may be drawn remain the same;

all in accordance with the provisions of this Agreement;

Royal ” means Royal Bank of Canada, a Canadian chartered bank;

Sanctioned Country ” means, at any time, a country or territory which is the subject or target of any Sanctions;

Sanctioned Person ” means, at any time, any Person listed in any Sanctions-specific list of designated Persons maintained by OFAC, the United States Department of State, or by the United Nations Security Council, in all cases, to the extent not inconsistent with Applicable Law in Canada;

Sanctions ” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by a Sanctions Authority that are applicable to the Borrower or its Subsidiaries; provided that, with respect to economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the United Nations Security Council, to the extent such sanctions or trade embargoes are not inconsistent with Applicable Law in Canada;

Sanctions Authority ” means any of: (i) the federal government of Canada; (ii) the federal government of the United States of America; (iii) the United Nations Security Council (to the extent not inconsistent with Applicable Law in Canada); or (iv) the respective governmental institutions, departments and agencies of any of the foregoing, including OFAC and the United States Department of State; and “ Sanctions Authorities ” means all of the foregoing Sanctions Authorities, collectively;

Schedule I Bank ” means a bank under Schedule I of the Bank Act (Canada);

Schedule I Reference Bank ” means Royal, or such other Lender as may from time to time be appointed as the Schedule I Reference Bank pursuant to Section 12.17;

Schedule II Bank ” means a bank under Schedule II of the Bank Act (Canada);

Schedule II/III Reference Banks ” means, other than Bank of America, N.A., Canada Branch, (i) any two or more Lenders which are Schedule II Banks or Schedule III Banks, as selected from time to time by the Agent and approved by the Borrower, each acting reasonably, and shall include any other Lender that is a Schedule II Bank or Schedule III Bank selected from time to time by the Agent and approved by the Borrower, each acting reasonably, in substitution for or replacement of any then existing Schedule II/III Reference Banks, or (ii) if there is only one Schedule II Bank or Schedule III Bank that is a Lender, that Lender alone;

 

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Schedule III Bank ” means an authorized foreign bank under Schedule III of the Bank Act (Canada);

Senior Financial Officer ” means the Borrower’s Chief Financial Officer, Chief Accounting Officer, Vice-President Finance, Comptroller, Assistant Comptroller, Treasurer or Assistant Treasurer or any other officer of the Borrower having a similar title or position;

S&P ” means Standard & Poor’s Ratings Services, a division of Standard & Poor’s Financial Services LLC, a Subsidiary of McGraw-Hill Financial, Inc., its Affiliates and their respective successors;

Subsidiary ” means, with respect to any Person (“ X ”) (i) any corporation of which at least a majority of the outstanding shares having by the terms thereof ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether, at the time, shares of any other class or classes of such corporation might have voting power by reason of the happening of any contingency, unless the contingency has occurred and then only for as long as it continues) is, at the time, directly, indirectly or beneficially owned or controlled by X or one or more of its Subsidiaries or by X and one or more of its Subsidiaries, and (ii) any partnership or other entity of which at least a majority of the outstanding income interests or capital interests are at the time directly, indirectly or beneficially owned or controlled by X or one or more of its Subsidiaries or by X and one or more of its Subsidiaries; provided that unless otherwise expressly provided or the context otherwise requires, references herein to “Subsidiary” or “Subsidiaries” shall be and shall be deemed to be references to a Subsidiary or Subsidiaries of the Borrower;

Substitute Rating Entity ” has the meaning assigned thereto in Section 1.8(b)(i);

Swing Line Borrowing ” means a borrowing by way of (i) a Prime Loan, (ii) a USBR Loan or (iii) acceptance of Bankers’ Acceptances (to the extent available), in each case made or accepted only by a Swing Line Lender in accordance with Section 3.13;

Swing Line Commitment ” means, in relation to a Swing Line Lender, the amount set forth opposite such Swing Line Lender’s name in the third column on Schedule “J” from time to time, as such Swing Line Commitment may hereafter be increased, cancelled, reduced or terminated from time to time pursuant to this Agreement;

Swing Line Lenders ” means, from time to time, any Lenders selected by the Borrower and the Agent which have agreed to make Swing Line Borrowings available hereunder, in each case up to their respective Swing Line Commitments; provided that with respect to any particular Swing Line Borrowing made available hereunder, “Swing Line Lender” shall mean the Lender which made that Swing Line Borrowing;

 

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Syndicated Borrowings ” means Borrowings made available by the Syndicated Lenders pursuant to the Syndicated Commitments;

Syndicated Commitment ” means, in relation to a Syndicated Lender, the amount set forth opposite such Syndicated Lender’s name in the first column on Schedule “J” from time to time, as such Syndicated Commitment may hereafter be increased, cancelled, reduced or terminated from time to time pursuant to this Agreement;

Syndicated Lenders ” means, from time to time, those Lenders then providing Syndicated Commitments;

Tax ” means all present and future taxes, levies, duties, imposts, stamp and documentary taxes, deductions, charges or withholdings imposed by any Governmental/Judicial Body, and all liabilities with respect thereto, including all income taxes, capital taxes, excise taxes, financial institution duties, debit taxes and similar levies, and any interest, additions to tax and penalties imposed with respect to any of the foregoing;

Total Syndicated Commitment ” means, at any time, an amount equal to the aggregate of all of the Syndicated Commitments at such time;

US Base Rate ” means, with respect to outstanding USBR Loans, on any day, the greatest of:

 

  (i) the annual rate of interest most recently announced from time to time by the Schedule I Reference Bank (and, if not the Agent, notified to the Agent) as being its reference rate then in effect for determining interest rates on US Dollar denominated commercial loans made by the Schedule I Reference Bank in Canada;

 

  (ii) the annual rate of interest equal to the aggregate of the Fed Funds Rate and 0.75% per annum; and

 

  (iii) the annual rate of interest equal to the aggregate of the one month LIBOR and 0.75% per annum;

provided that if all such rates of interest are equal, then the “US Base Rate” shall be the rate specified in (i) above;

USBR Loans ” means the loans made available by the Lenders to the Borrower pursuant to Section 3.3, 3.8, 3.9 or 3.13 with respect to which the Borrower has agreed to pay interest thereon in accordance with Section 5.2 or which are made available to the Borrower by the Lenders as a result of applying Section 3.4(a), 3.7(d), 3.13(h) or 10.1;

US Dollars ” and the symbol “ US $ ” each mean lawful currency of the United States of America;

 

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US GAAP ” means generally accepted accounting principles in the United States of America in effect from time to time; and

Wholly-Owned Subsidiary ” means (i) any corporation of which 100% of the outstanding shares having by the terms thereof ordinary voting power to vote with respect to the election of the board of directors of such corporation (irrespective of whether at the time shares of any other class or classes of such corporation might have voting power by reason of the happening of any contingency, unless the contingency has occurred and then only for so long as it continues) is at the time directly, indirectly or beneficially owned or controlled by the Borrower or one or more of its Wholly-Owned Subsidiaries or by the Borrower and one or more of its Wholly-Owned Subsidiaries, or (ii) any partnership or other entity of which 100% of the outstanding income interests and capital interests is at the time directly, indirectly or beneficially owned or controlled by the Borrower or one or more of its Wholly-Owned Subsidiaries or by the Borrower and one or more of its Wholly-Owned Subsidiaries.

 

1.2 Headings and Table of Contents

The headings, the table of contents, and the Article and Section titles are inserted for convenience only and are to be ignored in construing this Agreement.

 

1.3 References

All references to Sections, Articles and Schedules are to Sections, Articles and Schedules to this Agreement. The words “hereto”, “herein”, “hereof”, “hereunder”, “this Agreement” and similar expressions mean and refer to this Agreement as hereafter supplemented or amended.

 

1.4 Rules of Interpretation

The singular includes the plural and vice versa; “month” means calendar month; and “in writing” or “written” includes printing, typewriting, or any electronic means of communication capable of being visibly reproduced at the point of reception, including telecopier, telex or telegraph.

 

1.5 Generally Accepted Accounting Principles

 

  (a) Unless otherwise defined, each accounting term used in this Agreement has the meaning assigned to it under GAAP.

 

  (b) In calculating the financial tests set forth in Sections 8.1(j) and 8.2(e), such calculations shall be based upon the Borrower’s consolidated financial statements for the relevant period.

 

1.6 Changes in GAAP or Accounting Policies

 

  (a) If:

 

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  (i) there occurs a material change in GAAP after December 31, 2014, including as a result of any future conversion by the Borrower from generally accepted accounting principles in the United States to generally accepted accounting principles in Canada (or vice versa); or

 

  (ii) the Borrower or any of its Subsidiaries adopts a material change in an accounting policy in order to more appropriately present events or transactions in its financial statements;

and the above change would require disclosure under GAAP in the consolidated financial statements of the Borrower and would cause an amount required to be determined for the purposes of any financial test in Section 8.1(j) or 8.2(e) or any financial term or threshold used in Section 2.1(c), 8.2(f), the Negative Pledge, Section 9.1 or elsewhere in this Agreement (each a “ Financial Covenant/Term ”) to be materially different than the amount that would be determined without giving effect to such change, the Borrower shall notify the Agent of such change (an “ Accounting Change ”). Such notice (an “ Accounting Change Notice ”) shall describe the nature of the Accounting Change, its effect on the current and immediately prior year’s financial statements in accordance with GAAP and state whether the Borrower desires to revise the method of calculating one or more of the Financial Covenants/Terms (including the revision of any of the defined terms used in the determination of such Financial Covenant/Term) in order that amounts determined after giving effect to such Accounting Change and the revised method of calculating such Financial Covenant/Term will approximate the amount that would be determined without giving effect to such Accounting Change and without giving effect to the revised method of calculating such Financial Covenant/Term. The Accounting Change Notice shall be delivered to the Agent within sixty (60) days after the end of the Fiscal Quarter in which the Accounting Change is implemented or, if such Accounting Change is implemented in the fourth Fiscal Quarter or in respect of an entire Fiscal Year, within 120 days after the end of such period.

 

  (b) If, pursuant to the Accounting Change Notice, the Borrower does not indicate that it desires to revise the method of calculating one or more of the Financial Covenants/Terms, the Majority Lenders may within thirty (30) days after receipt of the Accounting Change Notice notify the Borrower that they wish to revise the method of calculating one or more of the Financial Covenants/Terms in the manner described above.

 

  (c)

If either the Borrower or the Majority Lenders so indicate that they wish to revise the method of calculating one or more of the Financial Covenants/Terms, the Borrower and the Majority Lenders shall in good faith attempt to agree on a revised method of calculating such Financial Covenants/Terms so as to reflect equitably such Accounting Change with the desired result that the result of the evaluation of the Borrower’s financial condition shall be substantially the same after such Accounting Change as if such Accounting Change had not been made. Until the Borrower and the Majority Lenders have reached agreement in writing on such revised method of

 

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  calculation, all amounts to be determined hereunder shall continue to be determined without giving effect to the Accounting Change. For greater certainty, if no notice of a desire to revise the method of calculating the Financial Covenants/Terms in respect of an Accounting Change is given by either the Borrower or the Majority Lenders within the applicable time period described above, then the method of calculating the Financial Covenants/Terms shall not be revised in response to such Accounting Change and all amounts to be determined pursuant to the Financial Covenants/Terms shall be determined after giving effect to such Accounting Change.

 

  (d) If a Compliance Certificate is delivered in respect of a Fiscal Quarter or Fiscal Year in which an Accounting Change is implemented without giving effect to any revised method of calculating any of the Financial Covenants/Terms, and subsequently, as provided above, the method of calculating one or more of the Financial Covenants/Terms is revised in response to such Accounting Change, the Borrower shall deliver a revised Compliance Certificate. Any Event of Default which arises as a result of the Accounting Change and which is cured by this Section 1.6 shall be deemed to have never occurred.

 

1.7 Schedules

Schedules “A” to “J” are attached to and constitute part of the terms and conditions of this Agreement.

 

1.8 Certain Matters Related to Ratings Explained

For the purposes hereof:

 

  (a) the long term debt of the Borrower shall not be considered to be “not rated” (or to like effect) by either S&P or Moody’s (each, a “ Rating Agency ”) by reason of such Rating Agency ceasing to carry on the business of providing ratings of the long term debt of corporate borrowers based on creditworthiness assessments. If only one of the Rating Agencies ceases carrying on the business of providing ratings of the long term debt of corporate borrowers based on creditworthiness assessments, then for purposes of calculating “Applicable Pricing Margin” and the definition of “Investment Grade”, the rating of the other Rating Agency only shall be utilized;

 

  (b) if both of the Rating Agencies cease carrying on the business of providing ratings of the long term debt of corporate borrowers based on creditworthiness assessments, then:

 

  (i)

the Borrower and the Lenders shall attempt in good faith for a period of 30 days thereafter to determine substitute definitions for or amendments to the Applicable Pricing Margin and Investment Grade, which may include attempting to agree on some other entity (which may include a debt rating agency or a nationally recognized securities dealer) (a “ Substitute Rating Entity ”) to assign a rating to the long term debt of the Borrower as

 

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  contemplated in the following paragraph (ii) and to agree, if necessary, on the ratings of such Substitute Rating Entity which most closely correspond to those in the definitions of Applicable Pricing Margin and Investment Grade, as applicable (“ Equivalent Ratings ”); and

 

  (ii) if by the end of such 30 day period the Borrower and the Lenders have not agreed upon substitute definitions for or amendments to the Applicable Pricing Margin and Investment Grade, as applicable, pursuant to the preceding paragraph (i), then during a period of 60 days thereafter, the Borrower and the Lenders shall, if such has not already been accomplished, continue to attempt in good faith to agree on a Substitute Rating Entity and, if applicable, Equivalent Ratings and, if a Substitute Rating Entity has been agreed on, the Borrower shall attempt to obtain from the Substitute Rating Entity a rating (“ Substitute Rating ”) for the long term debt of the Borrower;

it being agreed that:

 

  (iii) during the 30 day and 60 day periods contemplated in the preceding paragraphs (i) and (ii), or such part thereof which elapses before an alternate approach is finally established as contemplated in such paragraphs (i) and (ii), the rates applicable from time to time in accordance with the Applicable Pricing Margin and based on the rating applicable to the long term debt of the Borrower immediately before the commencement of the 30 day period contemplated in the preceding paragraph (i) shall apply;

 

  (iv) if a Substitute Rating Entity and, if applicable, Equivalent Ratings have been agreed on and the Substitute Rating Entity has established a Substitute Rating for the long term debt of the Borrower by or before the expiration of the 60 day period contemplated in the preceding paragraph (ii), then thereupon and thereafter the same shall apply and, if applicable, the Applicable Pricing Margin and the definition of Investment Grade shall be deemed to have been amended to incorporate the Equivalent Ratings in place of the ratings referred to in the Applicable Pricing Margin and the definition of Investment Grade; provided the Substitute Rating shall be subject to review by the Substitute Rating Entity from time to time (but not more often than once in any 12 month period) at the request of either the Borrower or the Agent given in writing to the other (any such review to determine whether the Substitute Rating should change to another rating category or, if applicable, Equivalent Rating for the long term debt of the Borrower) and if any such review results in a change in the Substitute Rating, then thereupon and thereafter (subject to further reviews as aforesaid) the same shall apply; and

 

  (v)

if an alternate approach has not been finally established as contemplated in the preceding paragraphs (i) and (ii) by the expiration of the 60 day period referred to in the preceding paragraph (ii), then the rates applicable from time to time in accordance with the Applicable Pricing Margin and based on the

 

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  rating applicable to the long term debt of the Borrower immediately before the commencement of the 30 day period contemplated in the preceding paragraph (i) shall continue to apply;

 

  (c) a rating assigned by a Rating Agency (or, as applicable, Substitute Rating Entity) shall be, as applicable, considered to be “lower” than another rating assigned by such Rating Agency (or, as applicable, Substitute Rating Entity) or by the other Rating Agency if it denotes a poorer creditworthiness assessment (for instance, “B” is lower than “A”);

 

  (d) the rating categories and ratings of any Rating Agency or Substitute Rating Entity referred to herein shall include any equivalent rating category or rating of such Rating Agency or Substitute Rating Entity which replaces the same; and

 

  (e) any reference in this Section 1.8 to the long term debt of the Borrower (or to like effect) shall be deemed to be a reference to the senior unsecured non-convertible publicly-held long term debt of the Borrower.

 

1.9 Amendment and Restatement

The Borrower, the Agent and the Lenders acknowledge and agree that as of the Amendment Effective Date:

 

  (a) the provisions of the Existing Credit Agreement are amended, modified and restated in their entirety on the terms and conditions, and in the form, of this Agreement and, as so amended, modified and restated, are ratified and confirmed; and

 

  (b) all rights, obligations and indebtedness which have arisen and remain outstanding under the Existing Credit Agreement as of the Amendment Effective Date including, without limitation, all “Outstandings” as defined in the Existing Credit Agreement and all accrued and unpaid interest thereon, fees and other amounts owing thereunder shall, subject only to the effect of the amendments and modifications to the Existing Credit Agreement effected by this Agreement, continue in full force and effect as rights, obligations and indebtedness under this Agreement, all in accordance with and subject to the provisions herein set forth; provided that nothing in this Agreement shall constitute a new loan or loans or the provision of new credit or the effective repayment and readvance or replacement of such “Outstandings” as of the Amendment Effective Date, and the liability of the Borrower in respect of such “Outstandings” shall be and be deemed to be continued under and governed by this Agreement from and after the Amendment Effective Date.

ARTICLE 2

REPRESENTATIONS AND WARRANTIES

 

2.1 Representations and Warranties

The Borrower represents and warrants to each of the Lenders and the Agent that:

 

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  (a) Corporate Existence and Authority: The Borrower is duly amalgamated and each Material Subsidiary is duly incorporated, amalgamated or otherwise constituted, and each of the Borrower and each Material Subsidiary is (i) validly existing under the laws of its jurisdiction of incorporation, amalgamation, continuance or constitution, as applicable, (ii) is duly qualified to carry on business in all jurisdictions in which it carries on any business, except to the extent the failure to be so qualified would not have a Material Adverse Effect, and (iii) has full power and authority to own its properties and conduct its business as presently conducted;

 

  (b) Necessary Approvals or Consents: No consent, approval, authorization or other action by, and no publication, notice to or filing or registration with, any Governmental/Judicial Body is required for the execution, delivery and performance by the Borrower of any Loan Document delivered by the Borrower (except such as have already been obtained and are in full force and effect);

 

  (c) Authorization and Constating Documents: The Borrower has full corporate power and authority to execute, deliver and perform its obligations under each Loan Document and the execution, delivery and performance thereof have been duly authorized by all necessary corporate action and do not:

 

  (i) violate any provision of the articles or by-laws of the Borrower;

 

  (ii) violate any provision of Applicable Law affecting the Borrower which violation would have a Material Adverse Effect;

 

  (iii) result in a breach of, constitute a default under, or result in the creation of, any encumbrance on any properties or assets of the Borrower or any of its Material Subsidiaries (in the case of any Material Subsidiaries that are not Wholly-Owned Subsidiaries, to the best knowledge of the Borrower, after due inquiry) or, to the best knowledge of the Borrower, after due inquiry, of its other Subsidiaries, under any agreement or instrument to which the Borrower or any of its Subsidiaries is a party or by which any such properties or assets of the Borrower or any of its Subsidiaries may be bound or affected where such breach, default or encumbrance would have a Material Adverse Effect; or

 

  (iv) constitute, and would not, with the giving of notice or lapse of time (or both), or the fulfilment of any other condition, constitute, an event entitling one or more parties (including lessors under Capital Leases), after the expiry of applicable cure periods, to accelerate the payment of any Financing Debt of the Borrower or any of its Subsidiaries where the amount owed by the Borrower or such Subsidiary after such acceleration in respect of such Financing Debt would exceed the greater of US$200,000,000 and two (2%) percent of Consolidated Net Worth;

 

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  (d) Enforceability of Agreement: This Agreement is, and each other Loan Document when delivered to any of the Lenders or the Agent hereunder will be, a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium, reorganization and other similar laws affecting creditor’s rights generally, and to the equitable and statutory powers of the courts having jurisdiction;

 

  (e) Compliance with Applicable Law: The Borrower and each Material Subsidiary and their respective business and operations are in compliance with all Applicable Laws, including environmental laws, have all necessary consents, authorizations, approvals, orders, certificates and permits from, and have made all necessary filings (including tax filings, subject to good faith contestations) with, all federal, provincial, territorial, state and local authorities to conduct their business, except to the extent that the failure to so comply with such laws, or to have obtained or filed the foregoing, would not have a Material Adverse Effect;

 

  (f) Litigation and Administrative Proceeding: Except as has been disclosed to the Agent in writing, there are no actions, suits or proceedings in respect of which process has been duly served upon the Borrower or any of its Subsidiaries, and to the best knowledge, information and belief of the Borrower, there are no actions, suits or proceedings pending or threatened against the Borrower or any of its Subsidiaries, before any Governmental/Judicial Body, which is reasonably likely to be determined adversely and, if determined adversely, would have a Material Adverse Effect;

 

  (g) Judgments: The Borrower is not in default of any judgment, order, writ, injunction or decree of any Governmental/Judicial Body and is, to the best of the knowledge, information and belief of the Borrower, complying with all decrees, statutes and regulations of any Governmental/Judicial Body, except to the extent that any such default or failure to comply would not have a Material Adverse Effect;

 

  (h) Financial Statements: The most recent audited consolidated financial statements of the Borrower have been prepared in accordance with GAAP and present fairly the financial position of the Borrower as of the date thereof;

 

  (i) Adverse Changes: Except as has been disclosed to the Agent in writing since the date of the most recent audited consolidated financial statements of the Borrower delivered to the Lenders hereunder, no change in the Borrower’s financial condition has occurred which would have a material adverse effect on the ability of the Borrower to pay any amounts owing from time to time under this Agreement or the validity or the enforceability of this Agreement provided that in no event shall fluctuations in commodity prices for oil and/or natural gas be regarded as a change in the Borrower’s financial condition in and of itself;

 

  (j) Pari Passu Ranking: All payment obligations of the Borrower hereunder rank at least pari passu in right of payment with the other most senior unsecured indebtedness of the Borrower for borrowed money;

 

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  (k) No Default:  No Default or Event of Default has occurred and is continuing;

 

  (l) Accuracy of Information: To the knowledge of the Borrower, all information, materials and documents (other than any information expressly disclaimed by the Borrower and forecasts) prepared by the Borrower and delivered to the Agent in connection with this Agreement are true and accurate in all material respects as of the Amendment Effective Date except to the extent that any inaccuracy would not have a Material Adverse Effect; and

 

  (m) Anti-Corruption Laws and Sanctions:  

 

  (i) None of the Borrower or its Material Subsidiaries is a Sanctioned Person or permanently located, organized or ordinarily resident in a Sanctioned Country;

 

  (ii) No part of the proceeds of a Drawdown will be knowingly (as determined at the date of such Drawdown) used (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person known by the Borrower to be in violation of any Anti-Corruption Laws, except to the extent that any such violation would not have a Material Adverse Effect or adversely affect the Agent or any Lender in any material respect, (B) for the purpose of funding, financing or facilitating any activities or, business or transaction of or with any Person known to the Borrower to be a Sanctioned Person, or in any country known to the Borrower to be a Sanctioned Country, or (C) in any manner that would result in the violation of any Sanctions applicable to the Borrower or its Material Subsidiaries, except to the extent that any such violation would not have a Material Adverse Effect or adversely affect the Agent or any Lender in any material respect; and

 

  (iii) Where used in this Section 2.1(m), references to “knowingly” or “known” means the actual knowledge of the president, chief executive officer, chief financial officer, treasurer or assistant treasurer of the Borrower.

 

2.2 Deemed Representation and Warranty Upon Drawdown

Each Notice of Drawdown given by the Borrower to the Agent shall be deemed to be a representation and warranty by the Borrower to each of the Lenders and the Agent that the representations and warranties contained in Section 2.1 (other than Section 2.1(l) which is intended to apply only as of the Amendment Effective Date) are, as of the date of such notice, and will be, as of the applicable Drawdown Date, true and correct in all material respects as of each such date.

 

2.3 Deemed Representation and Warranty Upon Conversion or Rollover

Except as expressly stated otherwise therein (in which case Section 9.3 shall apply), each Notice of Conversion and Notice of Rollover given by the Borrower to the Agent shall be deemed to be a representation and warranty by the Borrower to each of the Lenders and the Agent

 

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that the representation and warranty contained in Section 2.1(k) is, as of the date of such notice, and will be, as of the applicable Borrowing Conversion Date or Borrowing Rollover Date, true and correct in all material respects as of such date.

 

2.4 Nature of Representations and Warranties

The representations and warranties set out in this Agreement, or deemed to be made pursuant hereto, shall survive the execution and delivery of this Agreement and the making of each Drawdown, Conversion and Rollover hereunder, notwithstanding any investigations or examinations which may be made by the Agent, the Lenders or their legal counsel. Such representations and warranties shall survive until this Agreement has been terminated and all Loan Indebtedness then owing by the Borrower hereunder have been repaid in full.

ARTICLE 3

THE CREDIT FACILITY

 

3.1 Obligations of the Lenders

Relying on each of the representations and warranties set out in Article 2 and subject to the terms and conditions of this Agreement, each Lender agrees to make Borrowings available to the Borrower in respect of such Lender’s Commitments at the Agent’s Account for Payments up to an aggregate principal amount at any time outstanding not in excess of the amount of its respective Commitments.

 

3.2 Purpose/Certain Acquisitions

 

  (a) Subject to Section 3.2(b), the Borrower covenants and agrees it will use the Borrowings only for general corporate purposes (domestic and international), including, without limitation, to support the issuance of commercial paper, acquisitions and working capital, all in accordance with the provisions of this Agreement.

 

  (b) In the event the Borrower wishes to utilize proceeds of one or more Borrowings to, or to provide funds to any Subsidiary to, finance an offer to acquire (which shall include an offer to purchase securities, solicitation of an offer to sell securities, an acceptance of an offer to sell securities, whether or not the offer to sell was solicited, or any combination of the foregoing) outstanding securities of any Person (the “ Target ”) which constitutes a “take-over bid” pursuant to applicable securities legislation (a “ Take-over ”), then either:

 

  (i)

prior to or concurrently with delivery to the Agent of any Notice of Drawdown or Notices of Drawdown pursuant to Section 3.3 requesting one or more Borrowings, the proceeds of which are to be used to finance such Take-over, the Borrower shall provide to the Agent evidence satisfactory to the Agent (acting reasonably) that the board of directors or like body of the Target, or the holders of the requisite number of securities of the Target as are required to approve such Take-over to ensure the successful completion of

 

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  such Take-over under Applicable Law, has or have approved, accepted, or recommended to security holders acceptance of, the Take-over; or

 

  (ii) the following steps shall be followed:

 

  (A) at least five (5) Business Days prior to the delivery to the Agent of any Notice of Drawdown or Notices of Drawdown pursuant to Section 3.3 requesting one or more Borrowings intended to be used to finance such Take-over, the President or a Senior Financial Officer of the Borrower shall advise the Agent, who shall promptly advise an appropriate officer of each Lender of the particulars of such Take-over in sufficient detail to enable each such Lender to determine whether it has a conflict of interest if Borrowings from such Lender are used by the Borrower to finance such Take-over;

 

  (B) within three (3) Business Days of being so advised, each such Lender shall notify the Agent of such Lender’s determination as to whether such a conflict of interest exists (such determination to be made by such Lender in the exercise of its sole discretion, having regard to such considerations as it deems appropriate); provided that in the event such Lender does not so notify the Agent within such three (3) Business Day period, such Lender shall be deemed to have notified the Agent that it has no such conflict of interest; and

 

  (C) the Agent shall promptly notify the President or a Senior Financial Officer of the Borrower of each such Lender’s determination;

and in the event that any such Lender has such a conflict of interest (an “ Affected Lender ”), then upon the Agent so notifying the Borrower, the Affected Lender shall have no obligation to provide Borrowings to finance such Take-over, notwithstanding any other provision of this Agreement to the contrary; provided however that each other relevant Lender which has, or is deemed to have, no such conflict of interest (a “ Non-Affected Lender ”) shall have an obligation, up to the amount of its Commitment, to provide Borrowings to finance such Take-over, and Borrowings to finance such Take-over shall be provided by each Non-Affected Lender in accordance with the ratio, determined prior to the provision of any Borrowings to finance such Take-over, that the Commitment of such Non-Affected Lender bears to the aggregate of the Commitments of all the Non-Affected Lenders.

 

  (c) If Borrowings are used to finance a Take-over (a “ Take-over Loan ”) and there are Affected Lenders, subsequent Borrowings shall be funded firstly by Affected Lenders, and subsequent repayments shall be applied firstly to Non-Affected Lenders, in each case, until such time as the proportion that the amount of each Non-Affected Lender’s Outstandings bears to the amount of the total Outstandings of all Lenders is equal to such proportion which would have been in effect but for the application of this Section 3.2.

 

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3.3 Drawdowns

Subject to the provisions of this Agreement, prior to the Maturity Date the Borrower may, upon delivery of a Notice of Drawdown to the Agent in accordance with the provisions of this Agreement, borrow from, repay to, and reborrow from the Lenders by way of Borrowings up to an amount at any time outstanding not in excess of the amount of the Total Syndicated Commitment from time to time in effect, by way of:

 

  (a) Prime Loans in minimum amounts of Cdn. $10,000,000 and multiples of Cdn. $1,000,000, upon at least one (1) Business Day’s prior notice;

 

  (b) acceptance of drafts or Depository Bills to constitute Bankers’ Acceptances (or making BA Equivalent Loans in lieu thereof) in minimum amounts of Cdn. $10,000,000 and multiples of Cdn. $1,000,000, upon at least one (1) Business Day’s prior notice;

 

  (c) USBR Loans in minimum amounts of US$10,000,000 and multiples of US$1,000,000, upon at least one (1) Business Day’s prior notice;

 

  (d) LIBOR Loans in minimum amounts of US$10,000,000 and multiples of US$1,000,000, upon at least three (3) Business Days’ prior notice; and

 

  (e) Letters of Credit in accordance with the provisions of Section 3.7.

Any Notice of Drawdown to be given by the Borrower pursuant to this Section 3.3 shall be delivered to the Agent at the Agent’s Branch of Account at or prior to 12:00 noon (Toronto time) on the last day on which such notice can be given. Such Notice of Drawdown shall be substantially in the form of Schedule “A”, in the case of Prime Loans, USBR Loans, LIBOR Loans and Letters of Credit, and shall be substantially in the form of Schedule “B”, in the case of Bankers’ Acceptances and BA Equivalent Loans. Subject to the provisions of this Agreement, the Lenders shall make Borrowings available to the Borrower in accordance with Section 12.8.

 

3.4 LIBOR Loans

 

  (a) Deemed Conversion of LIBOR Loans: If, with respect to any outstanding Borrowing by way of LIBOR Loans, the Borrower has not, by 12:00 noon (Toronto time) on the last day of the LIBOR Interest Period applicable thereto, (i) duly elected to convert such Borrowing to another basis of Borrowing under Section 3.8, (ii) duly elected to Rollover such Borrowing under Section 3.9, or (iii) duly given notice of repayment of such Borrowing under Section 3.10, the Borrower shall be deemed to have elected to convert such LIBOR Loans to USBR Loans on the last day of the LIBOR Interest Period applicable thereto pursuant to Section 3.8.

 

  (b) Other Terms:  Each LIBOR Loan shall:

 

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  (i) subject to availability, have a LIBOR Interest Period selected by the Borrower of not less than one (1) month and not more than six (6) months, or such other period as is agreed to by all Lenders from time to time; and

 

  (ii) begin and end on a Business Day and not extend beyond the earliest then applicable Maturity Date.

 

3.5 Bankers’ Acceptances

 

  (a) Acceptance and Purchase of Bankers’ Acceptances: Subject to the terms and conditions of this Agreement, each Lender agrees to either (i) accept Bankers’ Acceptances issued by the Borrower and requested pursuant to Section 3.3, 3.8 or 3.9 and purchase such Bankers’ Acceptances in accordance with Section 12.8; or, (ii) if such Lender is a Non-Acceptance Lender, make BA Equivalent Loans in accordance with Sections 3.5(f) and 12.8.

 

  (b) Payment: The Borrower agrees to pay the applicable Lender the face amount of each Bankers’ Acceptance accepted by such Lender on its maturity date and hereby waives presentment for payment of such Bankers’ Acceptance by such Lender and agrees not to claim from such Lender any days of grace for the payment at maturity of such Bankers’ Acceptance, notwithstanding that (if such should be the case) any such Banker’s Acceptance has been unlawfully issued or used or put into circulation fraudulently or without authority, and the Borrower shall indemnify such Lender against any loss, cost, damage, expense or claim regardless of by whomsoever made, that such Lender may suffer or incur by reason of any fraudulent, unauthorized or unlawful issue or use of any such bankers’ acceptance form, except any fraudulent, unauthorized or unlawful issue or use of any such bankers’ acceptance form which is caused by the negligence or wilful act or omission of such Lender or any of its officers, employees, agents or representatives or which occurs as a result of such Lender or any of its officers, employees, agents or representatives failing to use the same standard of care in the custody of such bankers’ acceptance form as it uses in the custody of its own property of a similar nature.

 

  (c) Other Terms:  Each Bankers’ Acceptance shall:

 

  (i) subject to availability, have a term selected by the Borrower of not less than one (1) month and not more than six (6) months, or such other period as is agreed to by all Lenders under the Credit Facility from time to time; provided that, subject to availability, any Bankers’ Acceptance accepted by a Swing Line Lender as part of a Swing Line Borrowing may have a term of less than one (1) month but not greater than fifteen (15) days;

 

  (ii) have a maturity date which shall be on a Business Day and not later than the earliest then applicable Maturity Date; and

 

  (iii) be in a form satisfactory to the applicable Lender.

 

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  (d) Power of Attorney Respecting Bankers’ Acceptances: As a condition precedent to each Lender’s obligation to accept Bankers’ Acceptances hereunder, the Borrower agrees to the power of attorney annexed hereto as Schedule “H”, enabling such Lender to execute and deliver Bankers’ Acceptances for and on behalf of the Borrower.

 

  (e) Applicability of DBNA: It is the intention of the parties that all Bankers’ Acceptances accepted by the Lenders (other than a Lender which elects to accept Bankers’ Acceptances in the form of bills of exchange instead of Depository Bills) under this Agreement shall be issued in the form of a Depository Bill, be deposited with and be made payable to a “clearing house” (as defined in the Depository Bills and Notes Act (Canada)). The Agent and the Lenders shall effect the following practices and procedures and, subject to the approval of the Majority Lenders, establish and notify the Borrower and the Lenders of any additional procedures, consistent with the terms of this Agreement and the requirements of the Depository Bills and Notes Act (Canada), as are reasonably necessary to accomplish such intention:

 

  (i) each Bankers’ Acceptance accepted and purchased by a Lender hereunder shall have marked prominently and legibly on its face and within its text, at or before the time of issue, the words “This is a depository bill subject to the Depository Bills and Notes Act ”;

 

  (ii) any reference to authentication of such Bankers’ Acceptance will be removed; and

 

  (iii) such Bankers’ Acceptance shall not be marked with any words prohibiting negotiation, transfer or assignment of it or of an interest in it.

 

  (f)

BA Equivalent Loans: Notwithstanding the foregoing provisions of this Section 3.5, a Non-Acceptance Lender shall, in lieu of accepting and purchasing Bankers’ Acceptances, make a BA Equivalent Loan. The amount of each BA Equivalent Loan shall be equal to the Discount Proceeds which would be realized from a hypothetical sale of those Bankers’ Acceptances which such Lender would otherwise be required to accept and purchase as part of a Drawdown, Conversion or Rollover of Bankers’ Acceptances. To determine the amount of such Discount Proceeds, the hypothetical sale shall be deemed to take place at the Non-Acceptance Discount Rate for such Borrowing. Any BA Equivalent Loan shall be made on the relevant Drawdown Date, Borrowing Conversion Date or Borrowing Rollover Date, as the case may be, and shall remain outstanding for the term of the relevant Drawdown of, Conversion into or Rollover of, Bankers’ Acceptances. Concurrently with the making of a BA Equivalent Loan, a Non-Acceptance Lender shall be entitled to deduct therefrom an amount equal to the stamping fees which such Lender would otherwise be entitled to receive pursuant to Section 5.4 as part of such Borrowing if such Borrowing was a Bankers’ Acceptance, based on the amount payable (including interest) on the maturity date of such BA Equivalent Loan. Upon the maturity date

 

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  for such Bankers’ Acceptances, the Borrower shall pay to each Non-Acceptance Lender in respect of that Non-Acceptance Lender’s BA Equivalent Loan an amount equal to the face amount of the Bankers’ Acceptances which that Non-Acceptance Lender would have accepted and purchased at the Non-Acceptance Discount Rate for such Borrowing had that Non-Acceptance Lender been a Schedule I Bank, Schedule II Bank or Schedule III Bank. All references in this Agreement to “Borrowings” and “Bankers’ Acceptances” shall, unless otherwise expressly provided herein or unless the context otherwise requires, be deemed to include BA Equivalent Loans made by a Non-Acceptance Lender as part of a Drawdown of, Conversion into or Rollover of Bankers’ Acceptances.

 

  (g) Deemed Conversion of Bankers’ Acceptances: If the Borrower fails to pay the applicable Lender the face amount of each Bankers’ Acceptance accepted by such Lender on its maturity date as required by Section 3.5(b), or, in the case of a Non-Acceptance Lender which has made a BA Equivalent Loan, to pay that Non-Acceptance Lender the amount of its BA Equivalent Loan plus interest on the maturity date of that loan as required by Section 3.5(f), then the Agent shall effect a Conversion of that Borrowing into a Prime Loan of the entire amount of such Borrowing, including all interest due in the case of BA Equivalent Loans, as if the Borrower had given a Notice of Conversion to the Agent to that effect in accordance with Section 3.8.

 

3.6 Agent’s Duties re Bankers’ Acceptances

 

  (a) Advice to the Lenders: The Agent, promptly following receipt from the Borrower of a Notice of Drawdown by way of Bankers’ Acceptances, a Notice of Conversion where a Borrowing of another type is to be converted into a Borrowing by way of Bankers’ Acceptances (or BA Equivalent Loans in lieu thereof) or a Notice of Rollover in respect of a Borrowing by way of Bankers’ Acceptances (or BA Equivalent Loans made in lieu thereof), shall compute the funding details of such Drawdown, Conversion or Rollover (in compliance with Section 3.11(a)) and shall advise each applicable Lender forthwith of the amount of each issue of Bankers’ Acceptances to be accepted and purchased (or the amount of the BA Equivalent Loans to be made in lieu thereof) by such Lender. Prior to 12:00 noon (Toronto time) on the Drawdown Date, Borrowing Conversion Date or Borrowing Rollover Date, as applicable, the Agent shall provide advice by facsimile to the Borrower and each applicable Lender of the face amount of each issue of Bankers’ Acceptances, the Discount Rate, the Discount Proceeds of sale deliverable in respect thereof and the term thereof, which term in respect of each Borrowing shall be identical for all applicable Lenders.

 

  (b) Completion of Bankers’ Acceptance: Upon receipt of the advice pursuant to Section 3.6(a), each applicable Lender, other than a Non-Acceptance Lender, is thereupon authorized to execute bankers’ acceptances as the duly authorized attorney of the Borrower, in accordance with the particulars so advised by the Agent.

 

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3.7 Letters of Credit

 

  (a) Availability: Subject to the provisions hereof, the relevant Fronting Bank shall issue Letters of Credit in accordance with Section 3.7(c); provided that, subject to Section 4.2, at no time shall the Equivalent Amount in US Dollars of the aggregate undrawn face amount of all outstanding Letters of Credit issued by all Fronting Banks exceed US$500,000,000, and at no time shall the Equivalent Amount in US Dollars of the aggregate undrawn face amount of all Letters of Credit issued by the same Fronting Bank exceed its Fronting Bank Commitment. The issuance of each Letter of Credit shall constitute a Drawdown hereunder and shall reduce the availability of the Credit Facility by the undrawn face amount of such Letter of Credit.

 

  (b) Currency and Form: Each Letter of Credit issued pursuant hereto shall be denominated in Cdn. Dollars or US Dollars and amounts payable thereunder shall be paid in the currency in which such Letter of Credit is denominated. Each Letter of Credit shall have an expiration date not in excess of one year from the date of issue and not later than the earliest then applicable Maturity Date. Each Letter of Credit issued hereunder shall be in a form satisfactory to the Fronting Bank, acting reasonably and in accordance with its usual and customary practices and shall, unless agreed otherwise by the Fronting Bank, the Borrower and the Agent with respect to letters of credit, be issued subject to the Uniform Customs & Practice for Documentary Credits, International Chamber of Commerce, Publication No. 600 (the “ UCP ”) (or any replacement thereof) or the International Standby Practices ISP, International Chamber of Commerce Publication No. 590 (the “ ISP98 ”) (or any replacement thereof), as selected by the Borrower in the Notice of Drawdown (or subject to the UCP if no election is made),and shall, unless agreed otherwise by the Fronting Bank, the Borrower and the Agent with respect to letters of guarantee, be issued subject to Uniform Rules for Demand Guarantees, International Chamber of Commerce, Publication No. 458 (or any replacement thereof). If so requested by the Borrower, any Letter of Credit may have customary automatic extension provisions automatically extending, without amendment, for one (1) year periods from the expiration date of such Letter of Credit, or any future expiration date, unless, not more than sixty (60) days and not less than thirty (30) days (or such other period of time as may be agreed upon by the Fronting Bank and the Borrower, each acting reasonably) prior to any expiration date, the Fronting Bank shall notify the beneficiary of such Letter of Credit by registered mail that such Letter of Credit will not be extended for any such additional period; provided that in no event shall any such extended expiration date be later than the earliest then applicable Maturity Date.

 

  (c) Procedure for Issuance and Rollover of Letters of Credit

 

  (i)

The Borrower may request that the Fronting Bank issue a Letter of Credit pursuant to this Section 3.7 by delivering a Notice of Drawdown to the Agent pursuant to Section 3.3 and by delivering to the Fronting Bank at the Fronting Bank’s Branch of Account a copy of such Notice of Drawdown together with

 

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  a letter of credit application and indemnity in the Fronting Bank’s then customary form (as such form may be modified from time to time, the “ Letter of Credit Application ”), completed to the satisfaction of the Fronting Bank, acting reasonably, together with the proposed form of such Letter of Credit (which shall comply with the applicable requirements set forth herein) and such other certificates, documents and other papers and information as the Fronting Bank may reasonably request; provided that the terms of the Letter of Credit Application shall be in addition to and shall not derogate from the terms of this Agreement and provided further that in the event of a conflict between this Agreement and the Letter of Credit Application, this Agreement shall govern with respect to such conflict (it being acknowledged that a conflict shall not be deemed to exist by reason only that the Letter of Credit Application provides for a matter which this Agreement does not).

 

  (ii) Within two (2) Business Days (or such longer period as may be required by the Fronting Bank, acting reasonably, but in any event not longer than five (5) Business Days) following the date on which the Fronting Bank shall have received the Notice of Drawdown and the Letter of Credit Application including the proposed form of the Letter of Credit and such additional certificates, documents and other papers and information as the Fronting Bank may have reasonably requested in satisfaction of all conditions to the issuance thereof, the Fronting Bank shall issue such Letter of Credit, provided that all other conditions precedent contained in this Agreement shall have been met as required thereby. Alternatively, the Fronting Bank may, with the Borrower’s consent (which consent shall not be unreasonably withheld), in accordance with its customary practices, in lieu of issuing the requested performance, standby or documentary letter of credit or letter of guarantee, cause another bank to issue same against the Fronting Bank’s Letter of Credit which shall be a counter guarantee or protective letter of credit.

 

  (iii) The Borrower may request a Rollover of an existing Letter of Credit by giving a Notice of Rollover to the Fronting Bank at the Fronting Bank’s Branch of Account at least two (2) Business Days prior to the then current expiry date of such Letter of Credit ( provided that the Fronting Bank may accommodate such Rollovers on shorter notice in its reasonable discretion and a Notice of Rollover shall not be required in the circumstances contemplated in the proviso in Section 3.9(c)). If all conditions precedent contained in this Agreement shall have been met as required thereby, the Fronting Bank shall promptly issue such extension or replacement of such existing Letter of Credit.

 

  (d) Reimbursement or Conversion of Letters of Credit on Presentation; Fronting Bank Indemnity :

 

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(i)   Upon presentation of a Letter of Credit and payment thereunder by the Fronting Bank, the Fronting Bank shall forthwith notify the Borrower and the Agent of such presentation and payment and the Borrower shall forthwith pay to and reimburse the Fronting Bank for all amounts paid by the Fronting Bank pursuant to such Letter of Credit; provided that if the Borrower does not fully reimburse the Fronting Bank for such amounts, the Borrower shall be deemed to have effected a Conversion of such Letter of Credit into: (A) a Prime Loan, in the case of a Letter of Credit denominated in Canadian Dollars; and (B) a USBR Loan, in the case of a Letter of Credit denominated in US Dollars, in each case to the extent of the payment made by the Fronting Bank thereunder and not reimbursed by the Borrower.
(ii)   (A)   If Section 3.7(d)(i) applies to deem a Conversion to a Loan, each Lender shall, immediately upon request by the Fronting Bank, pay to the Agent for the account of the Fronting Bank its Lender’s Proportion of such deemed Loan.
  (B)   Each Lender shall immediately on demand indemnify the Fronting Bank to the extent of its Lender’s Proportion of any amount paid or liability incurred by the Fronting Bank under each Letter of Credit issued by it to the extent that the Borrower does not fully reimburse the Fronting Bank therefor.
  (C)   If a Lender does not disburse to the Agent for payment to the Fronting Bank its Lender’s Proportion of any amount under this Section 3.7(d)(ii), then for the purpose only of any distributions or payments to the Lenders (and not, for greater certainty, for purposes of any obligations of the Lenders), including any distribution or payment with respect to the Borrower in the event of any enforcement or realization proceedings or any bankruptcy, winding-up, liquidation, arrangement, compromise or composition, the applicable Outstandings owing to such Lender shall be deemed to be nil and the applicable Outstandings owing to the Fronting Bank shall be increased by the applicable Outstandings owing to such Lender until the amounts owed by the Borrower are outstanding to each Lender in accordance with their respective Lender’s Proportions determined without regard to this sentence.
  (D)   Notwithstanding that any Lender may assign its rights and obligations under this Agreement, the obligations in this Section 3.7(d) shall continue as obligations of the Persons who were Lenders at the time each such Letter of Credit was issued, unless the Fronting Bank specifically releases such Lender from such obligations in writing.

 

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  (e) Additional Provisions:

 

  (i) Indemnity and No Lender Liability: The Borrower shall indemnify and save harmless the Lenders, the Fronting Bank and the Agent against all claims, losses, costs, expenses or damages to the Lenders, the Fronting Bank and the Agent arising out of or in connection with any Letter of Credit, the issuance thereof, any payment thereunder or any action taken by the Lenders, the Fronting Bank or the Agent or any other person in connection therewith, including, without limitation, all costs relating to any legal process or proceeding instituted by any party restraining or seeking to restrain the Fronting Bank from accepting or paying any LC Draft or any amount under any such Letter of Credit, except for any of such resulting from the Agent’s, Lenders’ or Fronting Bank’s gross negligence or wilful misconduct. The Borrower also agrees that the Lenders, the Fronting Bank and the Agent shall have no liability to it for any reason in respect of or in connection with any Letter of Credit, the issuance thereof, any payment thereunder or any other action taken by the Lenders, the Fronting Bank or the Agent or any other person in connection therewith, except as a result of the Agent’s, Lenders’ or Fronting Bank’s gross negligence or wilful misconduct.

 

  (ii) No Obligation to Inquire: The Borrower hereby acknowledges and confirms to the Fronting Bank that the Fronting Bank shall not be obliged to make any inquiry or investigation as to the right of any beneficiary to make any claim or request any payment under a Letter of Credit and payment by the Fronting Bank pursuant to a Letter of Credit shall not be withheld by the Fronting Bank by reason of any matters in dispute between the beneficiary thereof and the Borrower. The sole obligation of the Fronting Bank with respect to Letters of Credit is to cause to be paid any LC Draft drawn or purporting to be drawn in accordance with the terms of the applicable Letter of Credit and for such purpose the Fronting Bank is only obliged to determine that the LC Draft (including any documents stipulated for production thereunder) purports to comply with the terms and conditions of the relevant Letter of Credit.

The Fronting Bank shall not have any responsibility or liability for or any duty to inquire into the form, sufficiency (other than to the extent provided in the preceding paragraph), authorization, execution, signature, endorsement, correctness (other than to the extent provided in the preceding paragraph), genuineness or legal effect of any LC Draft, certificate or other document presented to it pursuant to a Letter of Credit and the Borrower unconditionally assumes all risks with respect to the same. The Borrower agrees that it assumes all risks of the acts or omissions of the beneficiary of any Letter of Credit with respect to the use by such beneficiary of the relevant Letter of Credit.

 

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  (iii) Obligations Unconditional: The obligations of the Borrower hereunder with respect to all Letters of Credit shall be absolute, unconditional and irrevocable and shall not be reduced by any event, circumstance or occurrence including, without limitation, any lack of validity or enforceability of a Letter of Credit, or any LC Draft paid or acted upon by the Fronting Bank or any of its correspondents being fraudulent, forged or invalid or any defenses or claims which the Borrower may have against any beneficiary or transferee of any Letter of Credit. The obligations of the Borrower hereunder shall remain in full force and effect and shall apply to any alteration to or extension of the expiration date of any Letter of Credit or any Letter of Credit issued to replace, extend or alter any Letter of Credit.

 

  (iv) Fronting Bank Actions: Any action, inaction or omission taken or suffered by the Fronting Bank or by any of the Fronting Bank’s correspondents under or in connection with a Letter of Credit or any LC Draft made thereunder, if in good faith and in conformity with foreign or domestic laws, regulation or customs applicable thereto and the terms of the Letter of Credit shall be binding upon the Borrower and shall not expose the Fronting Bank or any of its correspondents to any resulting liability to the Borrower.

 

  (f) Designation and Termination of Fronting Banks:

 

  (i) Subject to Section 3.7(f)(ii)(B), the term of the Fronting Bank Commitment of any Fronting Bank shall be the same as the term of the Commitment of such Fronting Bank.

 

  (ii) In connection with its response to any Request for Extension, a Fronting Bank shall either:

 

  (A) extend its Fronting Bank Commitment to the Maturity Date specified in such Request for Extension at the same amount, a lower amount or a higher amount, in each case with the consent of the Agent and the Borrower; or

 

  (B) terminate its Fronting Bank Commitment effective on the expiration of its then current Maturity Date.

 

  (iii) With the consent of the Agent, the Borrower shall be entitled from time to time to:

 

  (A) designate any Lender to be a Fronting Bank by providing a written notice of such designation to the Agent (which notice shall include the consent to such designation by such Lender);or

 

  (B) terminate a Lender as a Fronting Bank by providing a written notice of such termination to the Agent;

 

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provided that at any one time there shall be no more than five (5) Fronting Banks which are eligible to issue Letters of Credit under this Section 3.7.

 

  (iv) If the Borrower elects to terminate a Fronting Bank as a Fronting Bank pursuant to Section 3.7(f)(iii), then such Fronting Bank shall no longer be required to issue Letters of Credit or Rollover existing Letters of Credit and, if the Fronting Bank requests in writing, the Borrower shall use its reasonable commercial efforts to replace all outstanding Letters of Credit issued by such Fronting Bank as soon as practicable with Letters of Credit issued by another Fronting Bank; provided that such Fronting Bank shall remain a Fronting Bank with respect to all outstanding Letters of Credit issued by it until all such Letters of Credit have been either replaced, expired or been presented for payment and all payments required to be made to such Fronting Bank by the Borrower and/or the other Lenders pursuant to this Section 3.7 as a result of any payment made under any Letter of Credit issued by such Fronting Bank have been made.

 

  (g) Use of Fronting Banks: Subject to the limits in Section 3.7(a), the Borrower shall have the right to select which Fronting Bank will issue any particular Letter of Credit and may, in its discretion, enter into agreements with or request bids from one or more Fronting Banks relating to fronting bank fees to be charged for Letters of Credit to be issued hereunder. Each such fronting fee shall be in such amount as may be agreed to between the Borrower and the applicable Fronting Bank, each in its sole discretion.

 

3.8 Conversion Option

 

  (a) The Borrower may, during the term of this Agreement, upon giving the Agent a Notice of Conversion in accordance with the same period of notice set out in Section 3.3 in respect of the type of Borrowing to which any Borrowing is being converted, convert any Borrowing to another type of Borrowing, provided that, subject to Section 3.10:

 

  (i) Bankers’ Acceptances may be converted only on their maturity dates;

 

  (ii) LIBOR Loans may only be converted on the last day of the applicable LIBOR Interest Period;

 

  (iii) the amount converted represents at least the minimum permitted amount of the resulting Borrowings, as set forth in Section 3.3;

 

  (iv) Letters of Credit may only be converted in the circumstances contemplated in Sections 3.7(d)(i) and 3.7(d)(ii) and do not require delivery of a Notice of Conversion; and

 

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  (v) any deemed Conversion of Swing Line Borrowings to Syndicated Borrowings in the circumstances contemplated in Section 3.13(h) does not require delivery of a Notice of Conversion.

 

  (b) If the Conversion of a Borrowing hereunder involves a change in the currency of such Borrowing, the principal amount of the Borrowing following the Conversion (the “ Converted Borrowing ”) shall be the Equivalent Amount, determined as of the date on which a Notice of Conversion in respect of such Conversion is given pursuant to Section 3.8(c), in the currency of the Converted Borrowing of the whole or the part of the Borrowing being converted. On the Borrowing Conversion Date therefor, the Borrower shall pay to the applicable Lenders the relevant amount being converted and such Lenders shall in exchange deliver to the Borrower such Equivalent Amount.

 

  (c) Notices of Conversion to be given by the Borrower pursuant to this Section 3.8 shall be substantially in the form of Schedule “C” together with, in the case of a Conversion to a Borrowing by way of Bankers’ Acceptances (or BA Equivalent Loans in lieu thereof), Schedule “B”, and shall be given in the manner provided in Section 3.3.

 

3.9 Rollover Option

 

  (a) The Borrower may, during the term of this Agreement, upon giving the Agent a Notice of Rollover in accordance with the same period of notice set out in Section 3.3 in respect of the type of Borrowing which is being rolled over, (i) Rollover any LIBOR Loan (on the last day of the applicable LIBOR Interest Period) to a new LIBOR Loan for a further LIBOR Interest Period, (ii) Rollover a Bankers’ Acceptance (on the maturity date of such Bankers’ Acceptance) or a BA Equivalent Loan (on the maturity date of such BA Equivalent Loan) into another Bankers’ Acceptance or BA Equivalent Loan (as the case may be) or (iii) Rollover any Letters of Credit (on or before the then current expiry date of such Letter of Credit) to an extended or replacement Letter of Credit.

 

  (b) The Discount Proceeds of the replacement Bankers’ Acceptances or BA Equivalent Loans (as the case may be) shall be retained by the Agent to be applied by it to:

 

  (i) the stamping fees payable pursuant to Section 5.4 in respect of the replacement Bankers’ Acceptances or BA Equivalent Loans (as the case may be); and

 

  (ii) the principal amount of the maturing Bankers’ Acceptance or BA Equivalent Loan (as the case may be);

and the Borrower shall pay to the Agent, on the maturity date of the maturing Banker’s Acceptance or BA Equivalent Loan (as the case may be), an amount equal to the difference between:

 

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  (iii) the aggregate of the principal amount at maturity of the maturing Bankers’ Acceptance or BA Equivalent Loan (as the case may be), and the stamping fees payable pursuant to Section 5.4 in respect of the replacement Bankers’ Acceptances or BA Equivalent Loans (as the case may be); and

 

  (iv) the Discount Proceeds of the replacement Banker’s Acceptances or BA Equivalent Loans (as the case may be).

 

  (c) Notices of Rollover to be given by the Borrower pursuant to this Section 3.9 shall be substantially in the form of Schedule “D” together with, in the case of a Rollover of a Borrowing by way of Bankers’ Acceptances (or BA Equivalent Loans in lieu thereof), Schedule “B”, and shall be given in the manner provided in Section 3.3; provided that any automatic extension of a Letter of Credit which occurs pursuant to its terms and without any further act on the part of the Fronting Bank shall not require delivery of a Notice of Rollover.

 

3.10 Notice and Additional Repayment Requirements

 

  (a) Notice: The Borrower shall give the Agent at the Agent’s Branch of Account prior notice of each repayment of Borrowings (for certainty, other than a repayment solely from funds derived from further Borrowings and other than a reimbursement of a drawing under a Letter of Credit), in accordance with the same period of notice as was required for such Borrowing, based upon the basis of such Borrowing and the amount being repaid as provided for in Section 3.3, such notice to be substantially in the form of Schedule “A” and to be given in the manner provided in Section 3.3.

 

  (b) LIBOR Loan Breakage Costs: In the event the Borrower wishes to repay LIBOR Loans comprising a Borrowing prior to the last day of the applicable LIBOR Interest Period, the Borrower shall so notify the Agent, and provided the Borrower and each Lender which participated in such Borrowing have agreed upon the amount of the indemnity payable to such Lender pursuant to Section 11.2(e) in respect of such repayment, the Borrower may repay such LIBOR Loans and pay such indemnity and such LIBOR Loans shall not thereafter be deemed to be outstanding as LIBOR Loans hereunder.

 

  (c)

Deposits for Bankers’ Acceptances: In the event the Borrower wishes to prepay Bankers’ Acceptances comprising a Borrowing on a date other than their maturity dates, the Borrower shall so notify the Agent, and, if the Borrower and the Agent have agreed upon the amount to be deposited into a Cash Coverage Account in order to yield on such maturity date the face amount of such Bankers’ Acceptances, and if such amount has been so deposited with the Agent as prepayment of such Bankers’ Acceptances, such Bankers’ Acceptances shall not thereafter be deemed to be outstanding as Bankers’ Acceptances hereunder. All such amounts in the Cash Coverage Account shall be applied to satisfy the obligations of the Borrower for the relevant Bankers’ Acceptances on their maturity dates and the Agent is hereby

 

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  irrevocably directed by the Borrower to so apply any such amount in the Cash Coverage Account.

 

  (d) Cancellation or Deposits for Letters of Credit: In the event the Borrower wishes to prepay any Letter of Credit comprising a Borrowing prior to the expiry thereof, the Borrower shall so notify the Agent and the Fronting Bank and shall either return such Letter of Credit for cancellation (together with a letter from the beneficiary of such Letter of Credit which consents to such cancellation) or deposit an amount equal to the undrawn face amount of such Letter of Credit into a Cash Coverage Account with the Agent as cash cover for the Fronting Bank’s contingent obligation under such Letter of Credit. If such Letter of Credit is returned for cancellation or if an amount equal to the undrawn face amount of such Letter of Credit has been deposited with the Agent as cash cover for such Letter of Credit, such Letter of Credit shall not thereafter be deemed to be outstanding as a Letter of Credit hereunder. Such cash cover shall be applied to satisfy the obligations of the Borrower for such Letters of Credit as payments are made thereunder and the Agent is hereby irrevocably directed by the Borrower to so apply any such cash cover. In addition, interest on such deposited amounts at the rate customarily offered by the Agent for deposits of similar amounts shall be for the account of the Borrower and may be withdrawn by the Borrower. After expiry of the Letters of Credit for which such funds are held and application by the Agent of the amounts in such Cash Coverage Account to satisfy the obligations of the Borrower hereunder with respect to the Letters of Credit being repaid, any remaining excess in such Cash Coverage Account shall be promptly paid by the Agent to the Borrower.

 

3.11 Pro-Rata Treatment of Borrowings

 

  (a) Pro-Rata Borrowings: Except as otherwise provided herein, each Borrowing and each basis of Borrowing shall be made available by each Lender, and all repayments and reductions in respect thereof, shall be made and applied in a manner so that the Borrowings outstanding hereunder to each such Lender and each basis of Borrowing made available hereunder by each such Lender will, to the extent practicable, and, subject always to the provisions of this Agreement, thereafter be in the proportions required by the next sentence. The Agent is authorized by the Borrower and each Lender to determine from time to time the relative amount of Borrowings to be outstanding hereunder to each Lender, each basis of Borrowing to be made available by each Lender and the application of repayments and reductions of Borrowings to give effect to the provisions of this Agreement, it being the intention that, subject to the other provisions of this Agreement and excluding any Swing Line Borrowings, the Outstandings of each Lender shall be in the same proportion of the total Outstandings of all Lenders as its Syndicated Commitment is of the Total Syndicated Commitment; provided that no Lender shall, as a result of any such determination, be owed Outstanding Principal in an amount which is in excess of the amount of its Syndicated Commitment.

 

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  (b) Agent’s Discretion on Allocation: In the event it is not practicable to allocate each basis of Borrowing in accordance with Section 3.11(a) by reason of the occurrence of the circumstances described in Article 10, or if such allocation would not result in each Lender accepting drafts to become Bankers’ Acceptances such that each draft so accepted is in a whole multiple of Cdn. $100,000, the Agent is authorized by the Borrower and each Lender to make an allocation, which allocation shall be as set forth in the advice provided by the Agent to the Borrower and each Lender pursuant to Section 3.6(a) (in the case of an allocation to ensure each Bankers’ Acceptance will be in a multiple of Cdn. $100,000), which the Agent determines in its sole discretion is equitable in the circumstances.

 

  (c) Further Assurances by Borrower: To the extent reasonably possible, the Borrower and each Lender agrees to be bound by and to do all things necessary or appropriate to give effect to the provisions of this Section 3.11.

 

3.12 Extension of Maturity Date

 

  (a) Request for Extension: The Borrower may, at its option and from time to time (but not more than once in a Fiscal Year), by delivering to the Agent at the Agent’s Branch of Account an executed Request for Extension, request those Lenders which have not become Non-Extending Lenders pursuant to this Section 3.12 (except to the extent Section 3.12(h) applies) (in this Section 3.12, the “ Requested Lenders ”) to issue a Notice of Extension to extend the then current Maturity Date with respect to the Commitments of such Requested Lenders to a date specified therein, which shall be not later than five years from the date (in this Section 3.12, the “ Extension Date ”) which is 90 days after the date of such Request for Extension.

 

  (b) Delivery of Request and Response Thereto: Upon receipt from the Borrower of an executed Request for Extension, the Agent shall forthwith deliver to each Requested Lender a copy of such request, and each Requested Lender shall, within 30 days after the date the Agent receives such request from the Borrower, advise the Agent in writing as to whether such Requested Lender will agree to extend the then current Maturity Date in respect of its Commitment; provided that, if any such Requested Lender shall fail to so advise the Agent within such 30 day period, then such Requested Lender shall be deemed to have denied such Request for Extension. The determination of each Requested Lender as to whether or not to extend the Maturity Date shall be made by each such Requested Lender in its sole discretion.

 

  (c) Agent’s Response to the Borrower: Within five days after the expiry of the aforementioned 30 day period, the Agent shall:

 

  (i) if:

 

  (A) all Requested Lenders are in agreement with delivering a Notice of Extension; or

 

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  (B) less than all Requested Lenders are in agreement with delivering a Notice of Extension, but, subject to Section 3.12(h)(ii), Requested Lenders having Commitments which, in aggregate, represent 66  2 3 % or more of all outstanding Commitments of all Requested Lenders are in agreement with delivering a Notice of Extension;

(each Requested Lender being in agreement with delivering a Notice of Extension being an “ Extending Lender ” for the purposes of this Section 3.12), deliver to the Borrower (with a copy to each Extending Lender) a Notice of Extension on behalf of all Extending Lenders, executed by the Agent and, in the circumstance where not all Requested Lenders are Extending Lenders, advise the Borrower of:

 

  (C) which Requested Lenders are not in agreement with extending the Maturity Date (in this Section 3.12, each a “ Non-Extending Lender ”); and

 

  (D) the amount of each Non-Extending Lender’s Commitments and Outstandings as at such date; or

 

  (ii) if neither of the conditions in Sections 3.12(c)(i)(A) and (B) have been met, notify the Borrower that the Request for Extension has not received the agreement of Requested Lenders which, subject to Section 3.12(h)(ii), have Commitments which, in aggregate, represent at least 66  2 3 % of all outstanding Commitments of all Requested Lenders (including therein the identity of the Requested Lenders which are not in agreement with extending the Maturity Date and the amount of each such Requested Lender’s Commitments and Outstandings at such date) and has therefore been denied.

The failure of the Agent within the aforementioned five day period to deliver a Notice of Extension, as provided in Section 3.12(c)(i) above, shall be deemed to be notification by the Agent to the Borrower that the Requested Lenders have denied the Request for Extension, and, in such circumstances, the Maturity Date shall not be extended for any of the Requested Lenders.

 

  (d) Extension of Maturity Date: Upon delivery by the Agent to the Borrower of a Notice of Extension pursuant to Section 3.12(c)(i), the Maturity Date for all Extending Lenders shall be extended to the Maturity Date specified in the relevant Request for Extension.

 

  (e) Commitments of Non-Extending Lenders: If in any instance a Notice of Extension has been delivered in circumstances in which not all of the Requested Lenders are Extending Lenders, then, on or prior to the relevant Extension Date:

 

  (i)

the Borrower may require any Non-Extending Lender in respect of the relevant Request for Extension to (and such Non-Extending Lender shall

 

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  thereupon become obligated to) assign all or part of its rights and obligations under the Loan Documents (for purposes of this Section 3.12, the “ Assigned Interests ”) to:

 

  (A) any Extending Lenders which have agreed to increase their Commitments and purchase the Assigned Interests; and

 

  (B) to the extent the Assigned Interests are not assigned to Extending Lenders in accordance with paragraph (A) above, any financial or other institutions selected by the Borrower and acceptable to the Agent, the Fronting Banks and the Swing Line Lenders, each acting reasonably.

The Borrower shall provide the Agent with written notice of its desire to proceed under this Section 3.12(e)(i) (which notice the Agent shall promptly provide to each Extending Lender), and the Extending Lenders shall be entitled to purchase such of the Assigned Interests as they may request ( pro rata , in proportion to the Commitments of those Extending Lenders wishing to purchase Assigned Interests, or otherwise as such Extending Lenders may agree) by written notice to the Agent and the Borrower within 10 days after receipt of such notice, before any Assigned Interests may be assigned to third party financial or other institutions. Such assignments, in any event, shall be effective upon:

 

  (C) execution of an agreement substantially in the form of Schedule “I”;

 

  (D) payment to the relevant Non-Extending Lender (in immediately available funds) by the relevant assignee of an amount equal to the relevant Loan Indebtedness owing to such Non-Extending Lender in regard to the Assigned Interests;

 

  (E) payment by the relevant assignee to the Agent (for the Agent’s own account) of the transfer fee contemplated in Section 15.9;

 

  (F) provision satisfactory to such Non-Extending Lender (acting reasonably) being made for payment at maturity of the face amount of outstanding Bankers’ Acceptances accepted by it in regard to the Assigned Interests and any costs, losses, premiums or expenses incurred by such Non-Extending Lender by reason of the liquidation or re-deployment of deposits or other funds in respect of LIBOR Loans outstanding hereunder in regard to the Assigned Interests; and

 

  (G)

provision satisfactory to such Non-Extending Lender (acting reasonably) being made for the indemnification, cash collateralization or release of such Non-Extending Lender from its obligations relating to any Letters of Credit or Swing Line Borrowings which form part of

 

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  the Assigned Interests, including its obligations under Sections 3.7(d) and 3.13(h) in regard to the Assigned Interests.

Upon such assignment and transfer becoming effective, the Non-Extending Lender shall have no further right, interest, benefit or obligation hereunder to the extent of the Assigned Interests assigned by that Lender, and each assignee thereof shall succeed to the position of such Lender to the extent of the portion of the Assigned Interests acquired by such assignee as if the assignee was an original Lender hereunder in regard thereto in the place and stead of such Non-Extending Lender; and

 

  (ii) to the extent that the Borrower has not caused any Non-Extending Lenders in respect of such Request for Extension to assign their respective rights and obligations under the Loan Documents to one or more Extending Lenders and/or other financial or other institutions as provided in paragraph (i) above, the Borrower may, at its option, notwithstanding any other provisions hereof, but only if no Default or Event of Default then exists, by further notice to the Agent, repay to such Non-Extending Lenders all Loan Indebtedness owed to such Non-Extending Lenders, without making corresponding repayment to any other Lenders, and make provision satisfactory to each relevant Non-Extending Lender (acting reasonably) for (A) payment at maturity of the face amount of all outstanding Bankers’ Acceptances accepted by such Non-Extending Lender, (B) payment of all costs, losses, premiums or expenses incurred by such Non-Extending Lender by reason of a liquidation or re-deployment of deposits or other funds in respect of all outstanding LIBOR Loans owed to such Non-Extending Lender, and (C) indemnification, cash collateralization or release of such Non-Extending Lender from its obligations relating to all outstanding Letters of Credit or Swing Line Borrowings including its obligations under Sections 3.7(d) and 3.13(h). Upon such payments and provisions being made, each such Non-Extending Lender shall cease to be a Lender and its Commitments shall be cancelled and the Total Syndicated Commitment reduced accordingly.

 

  (f) Non-Extending Lenders: If the rights and obligations of a Non-Extending Lender under the Loan Documents are not assigned in accordance with Section 3.12(e)(i) or the Loan Indebtedness of a Non-Extending Lender is not repaid in accordance with Section 3.12(e)(ii), then such Non-Extending Lender shall continue to be obliged to make its Lender’s Proportion of Borrowings available to the Borrower on a revolving basis prior to the Maturity Date applicable to its Commitments and on such date:

 

  (i) the Commitments of such Non-Extending Lender shall be automatically cancelled and all Loan Indebtedness then owing to such Non-Extending Lender hereunder shall be repaid in full; and

 

  (ii)

the Total Syndicated Commitment shall be deemed to be reduced by the amount of such cancelled Syndicated Commitment;

 

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provided that, notwithstanding Section 3.12(e) or any other provision herein, at any time prior to such Maturity Date, the Borrower may require any Non-Extending Lender to assign all or (subject to Section 15.9(a)) a portion of its rights and obligations under the Credit Facility in the same manner and subject to the same procedures as are contemplated in Section 3.12(e)(i) above and, upon such assignment becoming effective, each assignee shall be deemed to be an Extending Lender and the Maturity Date applicable to the Assigned Interests shall be extended to the Maturity Date applicable to the Commitments of the Extending Lenders; and provided , further , that where the proposed Assigned Interests are less than the aggregate Commitments of all of the Non-Extending Lenders, the Borrower shall ensure that the Commitments of all (but not less than all) of the Non-Extending Lenders are assigned or cancelled either (A) by requiring some or all of the Non-Extending Lenders to (and such Non-Extending Lender shall thereupon become obligated to) assign to the proposed assignee or assignees the same proportion of their respective Commitments as their respective Commitments bear to the aggregate Commitments of all Non-Extending Lenders or (B) if no Default or Event of Default then exists, by repaying to some or all of the Non-Extending Lenders all Loan Indebtedness owing hereunder to the Non-Extending Lenders in the same manner as is contemplated in Section 3.12(e)(ii) above.

 

  (g) Further Extensions of the Maturity Date: This Section 3.12 shall apply from time to time to facilitate successive extensions and requests for extensions of the Maturity Date. The Borrower shall not be entitled to request any action or give any notice under this Section 3.12 or receive any extension of the Maturity Date in respect of any Commitment so long as there exists a Default or an Event of Default which has not been waived by the Lenders.

 

  (h) Extensions from Non-Extending Lenders : The Borrower may, at its option and from time to time (but only pursuant to the delivery of an executed Request for Extension pursuant to Section 3.12(a)), request any Non-Extending Lender to extend the then current Maturity Date with respect to the Commitments of such Non-Extending Lender to the proposed Maturity Date requested in such Request for Extension. In these circumstances:

 

  (i) the Request for Extension shall expressly refer to such Non-Extending Lender and shall be provided by the Agent to such Non-Extending Lender;

 

  (ii) such Non-Extending Lender shall be included as one of the Requested Lenders for all purposes of Section 3.12 (except for the purposes of making the percentage calculation contemplated in Sections 3.12(c)(i)(B) or 3.12(c)(ii));

 

  (iii) upon the agreement of such Non-Extending Lender to extend the Maturity Date and the delivery of the applicable Notice of Extension from the Agent to the Borrower, such Non-Extending Lender shall become an Extending Lender and shall cease to be a Non-Extending Lender; and

 

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  (iv) in the event such Non-Extending Lender does not, or is deemed to not, agree to extend the Maturity Date, Sections 3.12(e) and 3.12(f) shall continue to apply to such Non-Extending Lender as they applied prior to the giving of such Request for Extension.

 

3.13 Swing Line Borrowings

 

  (a) Availability: Notwithstanding Sections 3.3 and 3.11 but subject to Sections 7.2(a) and 7.2(b), the Borrower may make Borrowings by way of Swing Line Borrowings by delivering a duly executed Notice of Drawdown to any Swing Line Lender (with a copy to the Agent) not later than:

 

  (i) in the case of Prime Loans and USBR Loans, 12:00 noon (Toronto time) on the proposed Drawdown Date; and

 

  (ii) in the case of Bankers’ Acceptances, 11:00 a.m. (Toronto time) on the proposed Drawdown Date.

Swing Line Borrowings shall be made by the Swing Line Lender receiving the relevant Notice of Drawdown alone, without assignment to or participation by other Lenders (except as provided in this Section). The making of each Swing Line Borrowing shall constitute a Drawdown hereunder and shall reduce the availability of the Credit Facility by the Outstanding Principal of such Swing Line Borrowing.

 

  (b) Individual Lender Limits: Subject to Section 4.2, at no time shall (i) the aggregate Outstanding Principal of all Swing Line Borrowings owing to any Swing Line Lender exceed such Lender’s Swing Line Commitment, (ii) the aggregate Outstanding Principal of all Swing Line Borrowings owing to any Swing Line Lender plus such Lender’s Lender’s Proportion of all Outstanding Principal of all Syndicated Borrowings exceed such Lender’s Syndicated Commitment, or (iii) the Lender’s Proportion of all Outstanding Principal of all Syndicated Borrowings owing to any Lender plus such Lender’s Lender’s Proportion of all Outstanding Principal of all Swing Line Borrowings exceed such Lender’s Syndicated Commitment.

 

  (c) Aggregate Limits: Subject to Section 4.2, at no time shall (i) the aggregate Outstanding Principal of all Swing Line Borrowings plus the Outstanding Principal of all Syndicated Borrowings exceed the Total Syndicated Commitment; or (ii) the aggregate Outstanding Principal of all Swing Line Borrowings exceed US$500,000,000.

 

  (d)

Repayment: Each Swing Line Borrowing shall mature and be repaid by the Borrower (or converted into a Syndicated Borrowing in accordance with Section 3.13(h)) on the maturity date selected by the Borrower in the Notice of Drawdown requesting such Swing Line Borrowing; provided that each Swing Line Borrowing shall mature within one to 15 days after the relevant Drawdown Date. Notwithstanding Section 3.10, no notice of repayment or Conversion shall be

 

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  required to be given by the Borrower in respect of any such repayment or Conversion of any Swing Line Borrowing nor shall Swing Line Borrowings be rolled over or converted except for Conversions into Syndicated Borrowings.

 

  (e) Mandatory Repayment: If the Borrower requests a Syndicated Borrowing and any Swing Line Lender’s Lender’s Proportion of such Borrowing would cause its Lender’s Proportion of all Syndicated Borrowings then outstanding together with the Swing Line Borrowings then owing to it to exceed its Commitment, then the Borrower shall be required to repay such Swing Line Borrowings to the extent of such excess on or before the requested date of such Syndicated Borrowing.

 

  (f) Prepayments: The Borrower may make prepayments of Swing Line Borrowings at any time and from time to time without penalty; provided that: (i) the Borrower shall promptly advise the Agent in writing of each such prepayments, and (ii) any Swing Line Borrowing by way of Bankers’ Acceptances may only be prepaid in accordance with Section 3.10(c).

 

  (g) Sole Account: All interest payments, acceptance fees and principal repayments of or in respect of Swing Line Borrowings shall be solely for the account of the relevant Swing Line Lender. Subject to Section 3.13(h), all costs and expenses relating to the Swing Line Borrowings shall be solely for the account of the relevant Swing Line Lender.

 

  (h)

Conversion to Syndicated Borrowings: Notwithstanding anything to the contrary herein contained, or the contrary provisions of Applicable Law, (i) if an Event of Default occurs or (ii) if any Swing Line Borrowing is not repaid on its maturity date, then the relevant Swing Line Lender shall give notice thereof to the Agent (which notice shall include the outstanding principal of and accrued and unpaid interest on such Swing Line Borrowing), who shall forthwith provide a copy of such notice to the other Lenders and, effective on the day of notice to that effect to such other Lenders from the relevant Swing Line Lender, the Borrower shall be deemed to have requested a Conversion of such Swing Line Borrowing into an amount of Syndicated Borrowings, in the same currency as the relevant Swing Line Borrowing, sufficient to repay the relevant Swing Line Borrowing and accrued and unpaid interest in respect thereof, and subject to the same period of notice set out in Sections 3.3(a) and 3.3(c), such other Lenders shall disburse to the Agent for payment to the relevant Swing Line Lender their respective Lender’s Proportions of such amounts and such amounts shall thereupon be deemed to have been advanced by such other Lenders to the Borrower and to constitute Syndicated Borrowings by way of Prime Loans (if the relevant Swing Line Borrowing was denominated in Cdn. Dollars) or USBR Loans (if the relevant Swing Line Borrowing was denominated in US Dollars). Such Syndicated Borrowings shall be deemed to be comprised of principal and accrued and unpaid interest in the same proportions as the corresponding Swing Line Borrowings. If a relevant Lender does not disburse to the Agent for payment to the relevant Swing Line Lender its Lender’s Proportion of any amount under this Section then: (i) such Lender shall purchase participations from such Swing Line Lender in such

 

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  Syndicated Borrowings (without recourse to such Swing Line Lender) for an amount or otherwise effect transactions to achieve the financial results contemplated by this Section, and (ii) for the purpose only of any distributions or payments to the Lenders (and not, for greater certainty, for purposes of any obligations of the Lenders), including any distribution or payment with respect to the Borrower in the event of any enforcement or realization proceedings or any bankruptcy, winding-up, liquidation, arrangement, compromise or composition, the applicable Outstandings owing to such Lender shall be deemed to be nil and the applicable Outstandings owing to the relevant Swing Line Lender shall be increased by the applicable Outstandings owing to such Lender until the amounts owed by the Borrower are outstanding to each Lender in accordance with their respective Lender’s Proportions determined without regard to this sentence. If any amount disbursed by a Lender to the Agent for payment to the relevant Swing Line Lender under this Section and deemed to have been advanced to the Borrower must be repaid by the relevant Swing Line Lender or by the relevant Lender to the Borrower, then no reduction of the relevant Swing Line Borrowings as contemplated above shall be deemed to have occurred, but the Lenders shall purchase participations in the relevant Swing Line Borrowings (without recourse to the relevant Swing Line Lender) for an amount or otherwise effect transactions to achieve the financial results contemplated by this Section.

 

  (i) Unconditional Obligation: For certainty, it is hereby acknowledged and agreed that the Lenders shall be obligated to disburse to the Agent for payment to the relevant Swing Line Lender their respective Lender’s Proportions of any Syndicated Borrowings contemplated by Section 3.13(h) regardless of:

 

  (i) whether a Default or Event of Default has occurred or is then continuing or whether any other condition in Article 7 is met; and

 

  (ii) whether or not the Borrower has, in fact, actually requested such Conversion (by delivery of a Notice of Conversion or otherwise).

 

  (j) Continuing Obligations: Notwithstanding that any Lender may assign its rights and obligations under this Agreement, the obligations in this Section 3.13 shall continue as obligations of the Persons who were Lenders at the time each such Swing Line Borrowing was made, unless the relevant Swing Line Lender specifically releases such Lender from such obligations in writing.

 

  (k) Designation and Termination of Swing Line Lenders :

 

  (i) Subject to Section 3.13(k)(ii)(B), the term of the Swing Line Commitment of any Swing Line Lender shall be the same as the term of the Commitment of such Swing Line Lender.

 

  (ii) In connection with its response to any Request for Extension, a Swing Line Lender shall either:

 

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  (A) extend its Swing Line Commitment to the Maturity Date specified in such Request for Extension at the same amount, a lower amount or a higher amount, in each case with the consent of the Agent and the Borrower; or

 

  (B) terminate its Swing Line Commitment effective on the expiration of its then current Maturity Date.

 

  (iii) With the consent of the Agent, not to be unreasonably withheld, the Borrower shall be entitled from time to time to:

 

  (A) designate any Lender to be a Swing Line Lender by providing a written notice of such designation to the Agent and such Lender (which notice shall include the consent to such designation by such Lender); and/or

 

  (B) terminate a Lender as a Swing Line Lender by providing a written notice of such termination to the Agent and such Lender;

provided that at any one time there shall be no more than five (5) Swing Line Lenders which are eligible to make Swing Line Borrowings under this Section 3.13.

 

  (iv) If the Borrower terminates a Swing Line Lender as a Swing Line Lender pursuant to Section 3.13(k)(iii), then such Swing Line Lender shall not be required to make any new Swing Line Borrowings; provided that such Swing Line Lender shall remain a Swing Line Lender with respect to all outstanding Swing Line Borrowings made by it until all such Swing Line Borrowings have been fully repaid and/or converted into Syndicated Borrowings.

 

3.14 Increase in Credit Facility

The Borrower may, at any time and from time to time, add additional financial institutions hereunder as Lenders and/or, with the consent of the applicable Lender (which may be given or withheld in its sole discretion), increase the Commitment of such Lender and, in each case, thereby increase the maximum principal amount of the Credit Facility, provided that, at the time of any such addition or increase:

 

  (a) no Default or Event of Default has occurred and is continuing;

 

  (b) the Borrower shall have delivered to the Agent:

 

  (i)

an officer’s certificate of the Borrower confirming the accuracy of (a) above and confirming (A) its corporate authorization to make such increase, (B) the truth and accuracy of its representations and warranties contained in this Agreement as of such date, and (C) that no consents, approvals or authorizations from any Person are required for such increase (except as have

 

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  been unconditionally obtained and are in full force and effect, unamended), each as at the effective date of such increase in the maximum principal amount of the Credit Facility, and attaching a certified copy of a directors’ resolution of the Borrower authorizing any such increase; and

 

  (ii) a legal opinion with respect thereto in form and substance as may be required by the Agent, acting reasonably (and such opinion shall, inter alia , opine as to the corporate authorization of the Borrower to effect such increase);

 

  (c) after giving effect to any such increase, the maximum principal amount of the Credit Facility shall not exceed US$3,500,000,000;

 

  (d) the Agent, the Fronting Banks and the Swing Line Lenders shall have each consented to such financial institution becoming a Lender or, in the case of an existing Lender, increasing its Commitment, such consents not to be unreasonably withheld; and

 

  (e) concurrently with the addition of a financial institution as an additional Lender or the increase of a Lender’s Commitment, such financial institution or Lender, as the case may be, shall purchase from each Lender such portion of the Outstandings owed to each Lender as may be required by the Agent, acting reasonably, and as is necessary to ensure that the Outstandings owed to all Lenders and including therein such additional financial institution and the increased Commitment of any Lender, are in accordance with the Lender’s Proportions of all such Lenders (including the new financial institution and the increased Commitment of any Lender) and such financial institution shall execute such documentation as is required by the Agent, acting reasonably, to novate such financial institution as a Lender hereunder; provided that with respect to any portion of such Outstandings which is outstanding by way of Bankers’ Acceptance, the new financial institution or such Lender shall provide an indemnity to the other Lenders (in a form satisfactory to the other Lenders, acting reasonably) in order to ensure such Bankers’ Acceptances are outstanding in accordance with the new Lender’s Proportions.

ARTICLE 4

REPAYMENT AND CANCELLATION

 

4.1 Repayment of Borrowings

 

  (a) Mandatory Repayment of Borrowings : The Borrower covenants and agrees to repay or otherwise reduce the Borrowings with the effect and requirement that all Borrowings owing to a Lender shall be repaid on or before the Maturity Date applicable to such Lender.

 

  (b) Application of Payment : Subject to the requirements of Section 4.1(a), in respect of payments to the Lenders, the Outstandings of each Lender shall be reduced so as to, following such payment, be in the same proportion as the amount of the Syndicated Commitment of such Lender at such time bears to the Total Syndicated Commitment.

 

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4.2 Exchange Rate Fluctuations

If, on the last day of any Fiscal Quarter or any LIBOR Interest Period , or on the maturity date of an outstanding Banker’s Acceptance (each a “ Currency Test Date ”), the amount of Outstanding Principal owed to any Lender is in excess of the Syndicated Commitment of such Lender and the amount of any funds on deposit or letter of credit or other assurance satisfactory to the Agent held for or by such Lender pursuant to this Section 4.2 (the amount of the excess being the “ Currency Excess ”), the Borrower shall, within 10 Business Days of the Currency Test Date, repay or otherwise reduce a portion of Borrowings owed to such Lender to the extent of the amount of such Currency Excess or provide satisfactory assurance of repayment thereof by depositing funds in an amount equal to the Currency Excess into a Cash Coverage Account with the Agent on behalf of the relevant Lender, to be dedicated to payment of Borrowings owed to the relevant Lender or provide satisfactory assurance of repayment thereof by way of letter of credit or otherwise as may be acceptable to such Lender, all to the satisfaction of the Agent. The Agent is hereby directed to apply any such sums on deposit to reduce the Currency Excess by applying such funds to satisfy obligations or liabilities of the Borrower under the Credit Facility to the relevant Lenders under the Loan Documents in respect of Bankers’ Acceptances (or BA Equivalent Loans made in lieu thereof) on their maturity or LIBOR Loans at the expiration of LIBOR Interest Periods, as applicable, or (subject to compliance with Sections 3.10(b) and 3.10(c), as applicable), at such earlier time as the Borrower elects. Upon the Currency Excess being eliminated by repayments or by virtue of subsequent changes in the exchange rate for determining the Equivalent Amount in US Dollars of Borrowings on a Currency Test Date, such funds on deposit, together with interest thereon, or letter of credit or other assurance shall be returned to the Borrower.

 

4.3 Cancellation of Syndicated Commitments

The Borrower may at any time, at its option and in its sole discretion, upon not less than two (2) Business Days’ prior notice to the Agent substantially in the form of Schedule “A”, cancel and reduce without penalty all or any portion of (a) the aggregate Syndicated Commitments of those Lenders which are not Non-Extending Lenders (as defined in Section 3.12), (b) the aggregate Syndicated Commitments of those Lenders which are Non-Extending Lenders (as defined in Section 3.12), or (c) any combination thereof, in minimum amounts of US$10,000,000 and in multiples of US$1,000,000 thereof, by:

 

  (a) in the case of, and to the extent of, the cancellation of all or any portion of the aggregate Syndicated Commitments of those Lenders which are not Non-Extending Lenders (as defined in Section 3.12), cancelling the Syndicated Commitment of each such Lender in the same proportion of the aggregate amount so cancelled as the proportion which such Lender’s Syndicated Commitment is of the total Syndicated Commitments of all such Lenders; and

 

  (b)

in the case of, and to the extent of, the cancellation of all or any portion of the aggregate Syndicated Commitments of those Lenders which are Non-Extending Lenders (as defined in Section 3.12), cancelling the Syndicated Commitment of each such Lender in the same proportion of the aggregate amount so cancelled as the

 

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  proportion which such Lender’s Syndicated Commitment is of the total Syndicated Commitments of all such Lenders;

provided that (i) on or prior to the last day of such notice period, the Borrower has repaid or reduced the principal amount of Syndicated Borrowings owing to each relevant Lender in accordance with Section 3.10(a) in an amount equal to the amount by which the Equivalent Amount of such Syndicated Borrowings in US Dollars would otherwise be in excess of such Lender’s Syndicated Commitment immediately after the reduction of the Total Syndicated Commitment provided for in such notice and (ii) the cancellation of all of the Syndicated Commitment of a Lender shall be deemed to be a cancellation of all other Commitments of such Lender. Any such notice of cancellation is irrevocable and the amount of the Total Syndicated Commitment so cancelled may not be reinstated.

 

4.4 Evidence of Indebtedness

The Agent shall open and maintain on the books at the Agent’s Branch of Account accounts evidencing the Borrower’s liability to the Agent and each Lender in respect of the Borrowings and other Loan Indebtedness outstanding by the Borrower hereunder. The Agent shall enter therein the amount and currency of such Borrowings, each payment of principal and interest on the Borrowings and other Loan Indebtedness, and shall record the Bankers’ Acceptances accepted by each Lender, the Letters of Credit issued by each Fronting Bank and all other amounts becoming due to the Agent and each Lender hereunder (and for such purposes the Agent shall be entitled to rely upon information provided by the Fronting Bank in respect of any Letter of Credit issued by such Lender and the Swing Line Lender in respect of any Swing Line Borrowings made by such Lender). The Accounts constitute, in the absence of manifest error, prima facie evidence of the Loan Indebtedness of the Borrower to the Agent and each Lender pursuant to this Agreement, the date and amount of each Borrowing made available to the Borrower, the date and amount of each payment by the Borrower on account of the Loan Indebtedness owing hereunder.

ARTICLE 5

PAYMENT OF INTEREST AND FEES

 

5.1 Payment of Interest on Prime Loans

The Borrower shall pay the Agent, on behalf of each Lender, interest on Prime Loans owed to such Lender in Canadian Dollars at the Agent’s Account for Payments at a variable rate per annum equal to the Prime Rate plus any Applicable Pricing Margin from time to time. Each change in the fluctuating interest rate for the Prime Loans will take place without notice to the Borrower, simultaneously with the corresponding change in the Prime Rate. Such interest is payable monthly in arrears on each Interest Date, in respect of the previous calendar month, and shall be calculated on a daily basis, based on the actual number of days elapsed and a year of 365 days, rounded in accordance with the Agent’s usual practices. If, at any time while Prime Loans are outstanding, the Prime Rate is being determined by reference to the CDOR One Month Rate, the Agent shall promptly advise the Borrower of such fact.

 

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5.2 Payment of Interest on USBR Loans

The Borrower shall pay to the Agent, on behalf of each Lender, interest on USBR Loans owed to such Lender in US Dollars at the Agent’s Account for Payments at a variable rate per annum equal to the US Base Rate plus any Applicable Pricing Margin from time to time. Each change in the fluctuating interest rate for the USBR Loans will take place without notice to the Borrower, simultaneously with the corresponding change in the US Base Rate. Such interest is payable monthly in arrears on each Interest Date, in respect of the previous calendar month, and shall be calculated on a daily basis, based on the actual number of days elapsed and a year of 365 days, rounded in accordance with Agent’s usual practices. If, at any time while USBR Loans are outstanding, the US Base Rate is being determined by reference to the Fed Funds Rate or the one month LIBOR, the Agent shall promptly advise the Borrower of such fact.

 

5.3 Payment of Interest on LIBOR Loans

The Borrower shall pay to the Agent on behalf of each Lender interest on each LIBOR Loan owed to such Lender in US Dollars at the Agent’s Account for Payments at the rate, expressed on the basis of a 360 day year, equal to the sum of:

 

  (a) the LIBOR applicable to such LIBOR Loan for the applicable LIBOR Interest Period; and

 

  (b) the Applicable Pricing Margin from time to time.

A change in the Applicable Pricing Margin will simultaneously cause a corresponding change in the rate of interest payable for a LIBOR Loan. Each determination by the Agent of the rate of interest applicable to a LIBOR Interest Period shall, in the absence of manifest error, be final, conclusive and binding upon the Borrower and each Lender. Such interest shall be payable in arrears on each LIBOR Interest Date of each LIBOR Interest Period applicable to each LIBOR Loan, for the period commencing on and including, as applicable, the first day of the applicable LIBOR Interest Period or the preceding LIBOR Interest Date in such LIBOR Interest Period, up to but not including such LIBOR Interest Date, and calculated on a daily basis, based on the actual number of days elapsed divided by 360, rounded in accordance with the Agent’s usual practices.

 

5.4 Stamping Fees for Bankers’ Acceptances

The Borrower shall pay to each Lender stamping fees in Canadian Dollars forthwith upon the acceptance by such Lender of each Bankers’ Acceptance issued by the Borrower hereunder (including, for certainty, any Bankers’ Acceptances issued and accepted pursuant to Section 3.8 or 3.9) at a rate per 365 day period equal to the Applicable Pricing Margin in effect during the term of such Bankers’ Acceptance, calculated on the face amount of such Bankers’ Acceptance and on the basis of the number of days in the term of such Bankers’ Acceptance divided by 365. Fees payable to the Lenders pursuant to this Section 5.4 shall be paid in the manner specified in Section 12.8(b)(ii). All fees payable pursuant to this Section 5.4 on any date in respect of any issuance of Bankers’ Acceptances shall be calculated by the Agent and payable by the Borrower.

 

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5.5 Issuance Fees for Letters of Credit

 

  (a) The Borrower shall pay to the Agent for the account of the Lenders an issuance fee in respect of each Letter of Credit issued by the Fronting Bank hereunder calculated at a rate per 365 day period equal to the Applicable Pricing Margin in effect during the term of such Letter of Credit and on the face amount of each such Letter of Credit. The issuance fee shall be payable quarterly in arrears on the first Business Day of each Fiscal Quarter following the issuance of the relevant Letter of Credit.

 

  (b) The Borrower shall pay to the Fronting Bank for its own account a fronting fee forthwith upon the issuance of each Letter of Credit issued by the Fronting Bank hereunder calculated at a rate per 365 day period equal to the rate agreed to or bid by the Fronting Bank pursuant to Section 3.7(g) and on the face amount of each such Letter of Credit.

 

  (c) The Borrower shall from time to time pay to the Fronting Bank for its own account its usual and customary fees (at the then prevailing rates) for the amendment, delivery and administration of letters of credit such as the Letters of Credit.

 

  (d) The Borrower shall receive a refund in respect of any issuance fee and fronting fee paid in respect of any Letter of Credit which is returned to the Fronting Bank for cancellation in accordance with Section 3.10(d) or fully drawn upon prior to the expiry thereof (such refund to be prorated based upon the portion of time that such Letter of Credit was not outstanding based on the original term thereof); provided that such refund shall only be paid if it exceeds US$1,000 or Cdn.$1,000, as applicable.

 

5.6 Adjustments

All fees payable under Section 5.4 or 5.5 shall be calculated by the Agent and payable by the Borrower initially on the assumption that the Debt Ratings at the time of issuance of the applicable Bankers’ Acceptances or Letters of Credit will be maintained during the term thereof. In the event such fees are calculated and paid on such assumption and such Debt Rating is changed or ceases to be available such as to change the Applicable Pricing Margin (any such change or cessation of a Debt Rating being a “ Rating Change ”) during the term of any such outstanding Bankers’ Acceptances or Letters of Credit, the Agent shall recalculate the amount of such fees on the basis of the Applicable Pricing Margin applicable to the period before such Rating Change, and the Applicable Pricing Margin applicable to the period on and after such Rating Change, and advise the Borrower and the Lenders of the amount of the underpayment or overpayment (if any). In the case of an underpayment, the Borrower shall pay to the Agent on behalf of the Lenders, on the maturity date of such outstanding Bankers’ Acceptances (in the case of Bankers’ Acceptances) or on the next date on which any interest or fee payment is made hereunder (in the case of Letters of Credit), the amount of such underpayment, and, in the case of an overpayment, the amount thereof shall be credited against amounts in respect of interest or other amounts accruing hereunder. Changes in the interest rate payable in respect of Loans as a result of a Rating Change shall be effective on the date of such Rating Change.

 

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5.7 Interest on Overdue Amounts

The Borrower expressly agrees to pay to the Agent on behalf of each Lender, at the Agent’s Branch of Account, on demand, interest on all overdue amounts outstanding under this Agreement at a variable rate per annum, which shall be adjusted automatically without notice to the Borrower whenever there is a change in the Prime Rate or US Base Rate, as the case may be, which is equal to:

 

  (a) the Prime Rate plus any Applicable Pricing Margin plus 1% per annum, in respect of amounts due in Canadian Dollars; and

 

  (b) the US Base Rate plus any Applicable Pricing Margin plus 1% per annum, in respect of amounts due in US Dollars;

and which additional interest the Borrower acknowledges to be commensurate with the increased credit risk to the Lenders in the circumstances. Such interest on overdue amounts shall be compounded monthly and shall be payable both before and after default, maturity and judgment.

 

5.8 Standby Fees

The Borrower covenants and agrees to pay to the Agent, on behalf of each Lender at the Agent’s Branch of Account, a standby fee in US Dollars payable in arrears on the first Business Day of each Fiscal Quarter, in respect of the previous Fiscal Quarter, in an amount equal to the Applicable Pricing Margin on each day in the calculation period, calculated on the amount by which the Syndicated Commitment of such Lender on such day is in excess of the Outstanding Principal then owing to such Lender on such day. Such standby fees shall be computed from and including the Amendment Effective Date and shall be calculated on a daily basis and based on a year of 365 days.

 

5.9 Agency Fees

The Borrower covenants and agrees to pay to the Agent certain fees as set forth in a letter agreement between the Agent and the Borrower relating to the Agent’s role as agent hereunder.

 

5.10 Maximum Rate Permitted by Law

 

  (a) In no event shall any interest or fee to be paid hereunder exceed the maximum rate permitted by applicable law. In the event any such interest or fee exceeds such maximum rate, such rate shall be reduced to the highest rate recoverable under applicable law.

 

  (b)

Notwithstanding any provision to the contrary contained herein, in no event shall the aggregate “interest” (as defined in Section 347 of the Criminal Code (Canada) as the same may be amended, replaced or re-enacted from time to time) payable hereunder exceed the effective annual rate of interest on the “credit advanced” (as defined in that section) hereunder lawfully permitted under that section and, if any payment, collection or demand pursuant to this Agreement in respect of “interest” (as defined in that section) is determined to be contrary to the provisions of that section, such

 

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  payment, collection or demand shall be deemed to have been made by mutual mistake of the Borrower and the Lenders and the amount of such payment or collection shall be refunded to the Borrower; for purposes hereof the effective annual rate of interest shall be determined in accordance with generally accepted actuarial practices and principles over the term of this Agreement on the basis of annual compounding of the lawfully permitted rate of interest and, in the event of dispute, a certificate of a Fellow of the Canadian Institute of Actuaries appointed by the Agent will be conclusive for the purposes of such determination.

 

5.11 Interest Act

For the purposes of the Interest Act (Canada), the annual rates of interest to which the rates determined in accordance with the provisions hereof on the basis of a period of calculation less than a year are equivalent, are the rates so determined (a) multiplied by the actual number of days in the one year period beginning on the first day of the period of calculation, and (b) divided by the number of days in the period of calculation.

 

5.12 Nominal Rates; No Deemed Reinvestment

The principle of deemed reinvestment of interest shall not apply to any interest calculation under this Agreement; all interest payments to be made hereunder shall be paid without allowance or deduction for deemed reinvestment or otherwise, before and after maturity, default and judgment. The rates of interest specified in this Agreement are intended to be nominal rates and not effective rates. Interest calculated hereunder shall be calculated using the nominal rate method and not the effective rate method of calculation.

 

5.13 Interest on Prepayments and Repayments

At the same time as any repayment or prepayment of principal is made under this Agreement or any Borrowings have been repaid in accordance with a cancellation of the Commitment pursuant to Section 4.3, the Borrower shall also pay all accrued and unpaid interest on the principal being repaid or prepaid.

ARTICLE 6

PAYMENTS

 

6.1 Time and Place of Payment

Subject to the next sentence, the Borrower shall make all payments pursuant to this Agreement to the Agent on behalf of the Lenders at the Agent’s Branch of Account in immediately available funds for good value on the day specified for payment. The Borrower shall make all payments owing to a Fronting Bank or a Swing Line Lender for its own account at such Lender’s Branch of Account in immediately available funds for good value on the day specified for payment. Whenever a payment is due to be made on a day which is not a Business Day, the day for payment is the following Business Day and such extension of time shall in such case be included in the computation of the payment of interest or any other amounts payable hereunder. Receipt by the Agent from the Borrower of funds for value on any day pursuant to this Agreement, as principal,

 

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interest, fees or otherwise, shall be deemed to be receipt of such funds on such day by the Agent or relevant Lenders, as the case may be.

 

6.2 Currency of Payment

Borrowings and payments in respect thereof are payable in the currency in which they are denominated.

 

6.3 Payments Free and Clear

 

  (a) The Borrower shall make all payments hereunder without set-off or counterclaim (except as permitted by Sections 9.5 and 12.19), free and clear of, and without deduction for or on account of, any Tax. If any Tax is deducted or withheld from any payments, except any Excluded Taxes, the Borrower shall promptly remit to the Agent on behalf of the Lenders, as payment of additional interest, the equivalent of the amounts so deducted or withheld together with the relevant official receipts or other evidence satisfactory to the Agent evidencing payment to the appropriate taxing authority of each such Tax by the Borrower with the intent being that the Lenders shall receive the full amount which would have been received by them had no such deduction or withholding been made. No additional amounts shall be payable by the Borrower under this Section 6.3(a) with respect to any Taxes which are payable otherwise than by withholding or deduction from payments hereunder.

 

  (b) In the event the Borrower has made a payment pursuant to Section 6.3(a), then (i) the relevant Lender shall take reasonable steps to make such applications or other filings (including for greater certainty, the filing of a Canadian income tax return) so as to obtain a reduction or refund of any such withheld or deducted amounts, and (ii) where the relevant Lender is thereafter granted or receives a credit, refund or remission in respect of the Tax for which the relevant deduction or withholding was made, such Lender shall refund to the Borrower such amount (if any) as such Lender determines in good faith will leave such Lender in no worse position than would have been the case if there had never been any obligation to make such deduction or withholding in the first place. For greater certainty, a Lender shall be entitled to fully recover from the Borrower, as payments of additional interest, all reasonable costs and expenses associated with any applications or other filings prepared as a result of this Section 6.3(b). No Lender shall be obligated to provide to the Borrower copies of all or any part of its tax returns, financial statements or other corporate financial data by reason of any such matter.

 

  (c)

If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA or Canadian equivalent legislation, regulations or other guidance if such Lender were to fail to comply with the applicable reporting requirements of FATCA or Canadian equivalent legislation, regulations or other guidance (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable, or the Income Tax Act (Canada)), such Lender shall deliver to the Borrower and/or the Agent (as applicable) at the time or times

 

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  prescribed by Applicable Law and at such time or times reasonably requested by the Borrower or the Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Agent as may be necessary for the Borrower and the Agent to comply with their obligations under FATCA or Canadian equivalent legislation, regulations or other guidance and to determine that such Lender has complied with such Lender’s obligations under FATCA or Canadian equivalent legislation, regulations or other guidance (or is exempt from withholding thereunder) or to determine the amount to deduct and withhold from such payment. Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Agent in writing of its legal inability to do so.

 

  (d) The provisions of this Section 6.3 shall survive the termination of the Agreement and the repayment of the Borrowings, accrued interest and all other indebtedness of the Borrower to the Agent and the Lenders hereunder.

 

6.4 Account Debit Authorization

The Borrower authorizes and directs the Agent, in its discretion, to automatically debit, by mechanical, electronic or manual means, the Borrower’s Accounts for all amounts payable under this Agreement, including, but not limited to, the repayment of principal and the payment of interest, fees and all charges for the keeping of such bank accounts; provided that the Agent shall not be obligated to effect any such debit and shall not be liable or responsible for its failure to do so. The Agent shall send the Borrower an invoice for any fees payable under this Agreement at least three (3) Business Days prior to any such debit and shall provide a confirmation of any upcoming debit for repayment of Borrowings on the same day that the Agent receives notice of such repayment from the Borrower. In the event the Agent debits the Borrower’s Accounts by an amount in excess of the principal, interest, fees or charges properly due on a day, then forthwith upon the error being discovered, the Agent shall reimburse the Borrower such excess amount with interest thereon from the date of the excess debit until reimbursement at rates prevailing at the time of the excess debit for deposits of like amount and currency with the Agent.

ARTICLE 7

CONDITIONS PRECEDENT

 

7.1 Conditions Precedent to Effectiveness

The effectiveness of this Agreement is subject to the satisfaction of the following conditions:

 

  (a) the Agent on behalf of each Lender (or certain Lenders, as indicated below) has received, in form and substance satisfactory to the Agent (or, in the case of (vi) and (vii) below, each of the Lenders), acting reasonably:

 

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  (i) a duly executed copy of this Agreement;

 

  (ii) a certified copy of the articles and by-laws of the Borrower;

 

  (iii) a certificate of existence under the laws of Canada in respect of the corporate existence of the Borrower;

 

  (iv) a certified resolution of the Board of Directors of the Borrower with respect to this Agreement;

 

  (v) an incumbency certificate of the Borrower certifying the name and true signatures of the Borrower’s officers authorized to sign this Agreement and the other Loan Documents;

 

  (vi) an opinion of Blake, Cassels & Graydon LLP, counsel to the Borrower addressed to the Agent and each Lender;

 

  (vii) an opinion of Norton Rose Fulbright Canada LLP, counsel to the Lenders, addressed to the Agent and each Lender;

 

  (viii) an assignment or withdrawal letter from each Existing Lender which is not continuing as a Lender under this Agreement, in a form satisfactory to the Agent and the Borrower; and

 

  (ix) all such other agreements, certificates, declarations, opinions and other documents as are reasonably required by the Agent to confirm or establish the completion or satisfaction of the conditions to the Lenders’ obligations hereunder and of which the Borrower is advised in a timely manner; and

 

  (b) the Borrower shall have paid to the Agent for the account of the Agent, the co-lead arrangers and the Lenders, as applicable, and in a timely manner, (i) all upfront and arrangement fees required to be paid by the Borrower on or before the Amendment Effective Date in connection with this Agreement and (ii) all accrued and unpaid standby fees under the Existing Credit Agreement for the period from and including July 1, 2015 to but excluding the Amendment Effective Date.

Each Lender hereby authorizes the Agent to confirm to the Borrower on the Amendment Effective Date that the conditions precedent set forth in this Section 7.1 have been satisfied on or prior to the Amendment Effective Date, provided such Lender has not advised the Agent in writing prior to such Amendment Effective Date that such Lender is not satisfied that the Borrower has complied with such conditions precedent.

 

7.2 Conditions Precedent to all Drawdowns

The Lenders’ obligations to make available any Drawdown pursuant to Section 3.3 are subject to and conditional upon the satisfaction of each of the following terms and conditions:

 

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  (a) as of each Drawdown Date, those representations and warranties contained in Section 2.1 (other than Section 2.1(l) which is intended to apply only as of the Amendment Effective Date) are true and correct in all material respects with the same effect as if made as of that Drawdown Date;

 

  (b) as of each Drawdown Date, no Default or Event of Default has occurred and is continuing or would occur with the making of the requested Borrowing; and

 

  (c) on or before the applicable number of days prior to each Drawdown Date, in accordance with Section 3.3, the Agent has received a duly executed Notice of Drawdown (in the form of Schedule “A” or “B” as applicable).

 

7.3 Conditions Precedent to Conversion or Rollover

The Lenders’ obligations to make any Conversion pursuant to Section 3.8 or to Rollover a Borrowing pursuant to Section 3.9 are subject to and conditional upon the satisfaction of each of the following terms and conditions (except as expressly provided otherwise in Sections 3.7(d) and 3.13(h)):

 

  (a) as of each Borrowing Conversion Date and Borrowing Rollover Date, either (i) no Default or Event of Default has occurred and is continuing or would occur with the making of the requested Borrowing or (ii) the limitations in Section 9.3 are complied with in respect of such Conversion or Rollover; and

 

  (b) on or before the applicable number of days prior to each Borrowing Conversion Date or Borrowing Rollover Date, in accordance with Section 3.3, the Agent has received a duly executed Notice of Conversion or Notice of Rollover, as applicable.

 

7.4 Waiver

The terms and conditions of Sections 7.1, 7.2 and 7.3 are inserted for the sole benefit of the Lenders and, subject to Sections 12.12 and 15.3, the Lenders may waive them in whole or in part, with or without terms or conditions in respect of any Borrowing, without prejudicing the Lenders’ rights to assert them in whole or in part in respect of any other Borrowing.

ARTICLE 8

COVENANTS OF THE BORROWER

 

8.1 Covenants of the Borrower

Subject to Section 8.3, the Borrower covenants with the Agent and each Lender that:

 

  (a) Pay Loan Indebtedness: The Borrower shall pay or cause to be paid, duly and punctually, all Loan Indebtedness due by it under the terms of this Agreement at the times and places and in the manner provided for herein;

 

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  (b) Payment of Taxes: The Borrower shall, and shall cause each of its Subsidiaries to, pay or cause to be paid all Taxes validly levied, assessed or imposed upon:

 

  (i) the Borrower or its Subsidiaries; and

 

  (ii) any part of its or their properties,

as and when the same become due and payable and where the non-payment of which would have a Material Adverse Effect, except to the extent and for so long as the Borrower or its Subsidiaries shall contest in good faith its or their obligation to do so diligently in appropriate proceedings, provided such contest would not have a Material Adverse Effect;

 

  (c) Use of Borrowings: The Borrower shall use all Borrowings advanced to it hereunder only for the purposes described in Section 3.2;

 

  (d) Maintenance of Business and Properties: The Borrower shall, and shall cause each of its Subsidiaries:

 

  (i) to carry on and conduct its and their business in the ordinary course; and

 

  (ii) to maintain and operate its property in accordance with normal industry practice;

except that nothing contained in this Section 8.1(d) shall prevent the Borrower or its Subsidiaries from selling, leasing or otherwise disposing of any of its or their property to the extent not prohibited by Section 8.2(d), or from ceasing to operate any of its or their property or business when, in the opinion of the appropriate officers of the Borrower or its Subsidiaries, it shall be advisable and in its or their best interests to do so;

 

  (e) Corporate Existence: Subject to Section 8.2(c), the Borrower shall maintain its corporate existence;

 

  (f) Insurance: The Borrower shall, and shall cause each of its Subsidiaries to, insure and keep insured, or cause to be insured and kept insured, all of its or their property which is of an insurable nature against such risks, in such amounts and in such manner as is usual in the case of corporations similarly situated and operating generally similar property and with such reputable insurance companies or associations as it may select; provided that the Borrower and its Subsidiaries may from time to time adopt other methods or plans of protection, including self-insurance, against such risks in substitution or partial substitution for the aforesaid insurance if such plans or methods shall, in the opinion of the appropriate senior officers of the Borrower or its Subsidiaries, be in its or their best interest, and neither the Borrower nor any of its Subsidiaries shall be required to keep insured any of its property in respect of which insurance is being provided by others for its benefit;

 

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  (g) Compliance With Laws: The Borrower shall, and shall cause each of its Subsidiaries to, comply in all respects with all Applicable Laws, including environmental laws, rules, regulations and governmental orders and licences, and shall obtain and maintain all environmental permits, applicable to its or their business operations if the failure to so comply or, as applicable, obtain and maintain such permits would have a Material Adverse Effect;

 

  (h) Reporting Requirements: The Borrower shall:

 

  (i) within 95 days after the end of each Fiscal Year, cause to be prepared and delivered to the Agent consolidated financial statements of the Borrower comprising the consolidated balance sheet, the consolidated statement of earnings, the consolidated statement of comprehensive income, the consolidated statement of changes in shareholders’ equity and the consolidated statement of cash flows pertaining to such Fiscal Year, together with the report and opinion of its independent auditors thereon confirming that such financial statements have been prepared in accordance with GAAP;

 

  (ii) within 65 days after the end of each Fiscal Quarter, except the fourth Fiscal Quarter of the Fiscal Year, cause to be prepared and delivered to the Agent unaudited consolidated financial statements of the Borrower comprising the consolidated balance sheet, the consolidated statement of earnings, the consolidated statement of comprehensive income, the consolidated statement of changes in shareholders’ equity and the consolidated statement of cash flows pertaining to such Fiscal Quarter;

 

  (iii) within 65 days after the end of each Fiscal Quarter, except the fourth Fiscal Quarter and within 95 days after the end of each Fiscal Year, prepare and deliver to the Agent a Compliance Certificate pertaining, as applicable, to the relevant Fiscal Quarter or Fiscal Year;

 

  (iv) promptly upon them becoming available, deliver to the Agent copies of:

 

  (A) all reports, notices and proxy statements sent by the Borrower to its shareholders; and

 

  (B) any report of a material change issued by the Borrower or any of its Material Subsidiaries and which the Borrower or such Material Subsidiary is not required by Applicable Law to keep confidential; and

 

  (v)

with reasonable promptness, provide such other reports and information on the financial condition and business affairs and operations of the Borrower and its Subsidiaries as the Agent on behalf of the Lenders may reasonably request from time to time and which the Borrower is not required by contract with a third party or Applicable Law to keep confidential,

 

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provided that the Borrower may satisfy the delivery requirements set forth in this Section 8.1(h) by sending to the Agent by electronic mail the documents that are to be delivered to the Agent pursuant to this Section 8.1(h), and, in the case of documents delivered pursuant to paragraph (iii) above, the Borrower promptly executes and delivers to the Agent an originally signed copy of such Compliance Certificate; and further , provided that the Borrower shall be deemed to have furnished the information required by Sections 8.1(h)(i), 8.1(h)(ii) and 8.1(h)(iv) if it shall have timely made the same available on “SEDAR” and notified the Agent that such information has been posted on “SEDAR” and such information is freely accessible without charge; and further, provided , that if any Lender is unable to access “SEDAR”, the Borrower agrees to provide such Lender with paper or electronic copies of the information required to be furnished pursuant to this Section 8.1(h) promptly following notice (and thereafter so long as such notice remains in effect) from the Agent that such Lender has requested same; and further , provided that the Agent and the Lenders hereby agree to keep confidential any data or information delivered to the Agent or the Lenders under this Section 8.1(h) which is not already in the public domain;

 

  (i) Books and Records: The Borrower shall, and shall cause each of its Subsidiaries to, keep proper books of records and accounts in which complete and correct entries will be made of its and their transactions sufficient to enable it to prepare its financial statements in accordance with GAAP;

 

  (j) Maintenance of Consolidated Debt to Consolidated Capitalization Ratio: The Borrower shall maintain, as of the last day of each Fiscal Quarter, as reported to the Lenders in accordance with Section 8.1(h), a Consolidated Debt to Consolidated Capitalization Ratio which does not exceed 60%;

 

  (k) Change of Fiscal Year: In the event the Borrower changes its Fiscal Year, then as of the end of the fiscal year which would have been the Fiscal Year but for the change to the Fiscal Year and if so requested by the Agent, the Borrower shall demonstrate to the Majority Lenders’ reasonable satisfaction that, notwithstanding such change, the Borrower is capable of meeting the requirements of Sections 8.1(j) and 8.2(e) had they been based on the Fiscal Year previous to such change;

 

  (l) Pari Passu Obligation: The Borrower shall ensure that all the rights of the Lenders and the Agent for payments of amounts owed by the Borrower under this Agreement rank at least pari passu in right of payment with all obligations of the Borrower in respect of the other most senior unsecured indebtedness of the Borrower for borrowed money;

 

  (m) Certain Changes: Promptly upon any Senior Financial Officer becoming aware of the same, the Borrower shall provide each Lender and the Agent with advice and particulars of:

 

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  (i) other than in respect of any failure to pay any Loan Indebtedness due hereunder, the occurrence of any Default or Event of Default, and advice as to whether, in the Borrower’s opinion, such event is remediable and, if so, of the steps being taken and proposed to remedy the same;

 

  (ii) any advice from S&P or Moody’s (or, if applicable, a Substitute Rating Entity under Section 1.8) that it has changed the Debt Rating assigned by it (including any change in outlook which has been publicly disclosed by such rating entity); and

 

  (iii) the occurrence of any event which would have a Material Adverse Effect; and

 

  (n) Anti-Corruption Laws and Sanctions : The Borrower shall maintain in effect and enforce procedures to ensure compliance by the Borrower with its representation and warranty in Section 2.1(m)(ii) in respect of any requested Drawdown.

 

8.2 Negative Covenants of the Borrower

Subject to Section 8.3, the Borrower covenants with the Agent and each Lender that:

 

  (a) Negative Pledge: The Borrower hereby creates in favour of the Lenders the Negative Pledge, the provisions of which are incorporated herein by this reference and form part of this Agreement, and the Borrower shall observe and perform its covenants and agreements therein contained;

 

  (b) Change in Nature of Business: The Borrower shall not make any change whereby the nature of the business carried on by the Borrower, on a consolidated basis, would be materially altered;

 

  (c) Reorganization of Borrower: Except for the amalgamation of the Borrower with one or more Subsidiaries or the transfer of all or substantially all of the Borrower’s undertaking and assets to one or more Subsidiaries, the Borrower shall not enter into or participate in any transaction which would result in:

 

  (i) the amalgamation of the Borrower with any other Person; or

 

  (ii) the transfer of all or substantially all of the Borrower’s undertaking and assets (determined on a consolidated basis) to another Person;

unless:

 

  (iii) the Debt Ratings of the successor or transferee are Investment Grade (unless the Majority Lenders approve any such transaction where the Debt Ratings of the successor or transferee are not Investment Grade); and

 

  (iv)

the successor or transferee executes and delivers to the Agent such documents, if any, as may, in the reasonable opinion of the Agent, be

 

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  necessary to confirm the assumption by the successor or transferee of the obligations of the Borrower under this Agreement;

 

  (d) Sale of Property and Assets: The Borrower shall not, and shall not permit any of its Subsidiaries to, sell, transfer, convey, lease or otherwise dispose of all or any material part of their respective property or assets (other than to the Borrower or one or more Subsidiaries of the Borrower) if such action would have a Material Adverse Effect;

 

  (e) Financing Debt of Certain Subsidiaries: The Borrower shall not permit:

 

  (i) the aggregate Financing Debt of all Material Subsidiaries which are Non- Guarantor Subsidiaries, on a consolidated basis; plus, without duplication

 

  (ii) the aggregate Indebtedness (as defined in the Negative Pledge) secured by security interests over Restricted Property (as defined in the Negative Pledge) given by the Borrower or any Material Subsidiary in favour of Non-Guarantor Subsidiaries which are not Material Subsidiaries; plus, without duplication

 

  (iii) the aggregate Financing Debt of Finance Co.; plus, without duplication

 

  (iv) the amount by which the aggregate Financing Debt of any Subsidiary (other than Finance Co. or a Material Subsidiary) exceeds an aggregate of US$750,000,000 and which Financing Debt is guaranteed by the Borrower or any Material Subsidiary (whether directly or indirectly through corporate law applicable to unlimited liability companies);

to exceed 17.5% of Consolidated Tangible Assets as of the last day of each Fiscal Quarter, as reported to the Lenders in accordance with Section 8.1(h); provided that, for the purpose of calculating the aggregate Financing Debt referred to in (i) above or the aggregate Indebtedness referred to in (ii) above, there shall be excluded (y) the Financing Debt of any Public Material Subsidiary or (z) any such Indebtedness secured by security interests over Restricted Property (as defined in the Negative Pledge) of any Public Material Subsidiary for so long as, in regard to any case referred to in (y) or (z) above, Common Equity Securities of the relevant Public Material Subsidiary are listed on any stock exchange and for 120 days (or such longer period as the Majority Lenders may allow in their sole discretion) after the date that Common Equity Securities of such Public Material Subsidiary cease to be so listed; and

 

  (f)

Financial Assistance by Material Subsidiaries : If any Material Subsidiary or Subsidiary thereof gives, grants or becomes subject to any guarantee, indemnity or other form of financial assistance to or in favour of any Person in respect of Financing Debt of the Borrower or any other Subsidiary, other than in respect of the Borrowings or any Centralized Banking Arrangements (each such guarantee, indemnity or other form of financial assistance, other than a guarantee, indemnity or other form of financial assistance in respect of the Borrowings or any Centralized

 

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Banking Arrangements, being a “ Third Party Guarantee ”), then the Borrower shall ensure that such Material Subsidiary or Subsidiary thereof duly executes and delivers to the Agent on behalf of the Lenders a guarantee or other instrument on no less favourable terms, with such changes thereto as may be necessary in the context and acceptable to the Agent, acting reasonably, so that the obligations thereunder rank at least pari passu with the obligations under such Third Party Guarantee; provided , however , that:

 

  (i) a Material Subsidiary or Subsidiary thereof shall be entitled to give, grant or become subject to a Third Party Guarantee in respect of Financing Debt of wholly-owned Subsidiaries of such Material Subsidiary; and

 

  (ii) a Material Subsidiary or Subsidiary thereof which is a direct or indirect wholly-owned Subsidiary of a Material Subsidiary shall be entitled to give, grant or become subject to a Third Party Guarantee in respect of Financing Debt of a Material Subsidiary or Subsidiary thereof of which (in either case) it is directly or indirectly a wholly-owned Subsidiary;

in either case, for so long as such wholly-owned Subsidiaries remain, directly or indirectly, wholly-owned by such Material Subsidiary, without being required by this Section 8.2(f) to execute and deliver a guarantee or other instrument to the Agent in accordance with the foregoing; and provided further however, that a Subsidiary which is not a Material Subsidiary need not execute and deliver such a guarantee or other instrument if and for so long as such Subsidiary, together with each other such Subsidiary which has given, granted, or become subject to a Third Party Guarantee and which has not executed and delivered a guarantee or other instrument to the Agent on behalf of the Lenders hereunder, has assets which have a value, as reflected in the consolidated balance sheet of the Borrower most recently delivered to the Lenders hereunder, of 10% or less of the value of the assets of the Borrower and its Subsidiaries reflected therein (without giving effect to the non-cash ceiling test impairments and other changes as at December 31, 2011 as a consequence of the adoption of US GAAP).

 

8.3 Actions in Respect of Subsidiaries

Notwithstanding anything to the contrary provided in Section 8.1 or Section 8.2 whereby the Borrower has covenanted to cause any Subsidiary to do or not to do any act or thing and such Subsidiary is not a Wholly-Owned Subsidiary, the Borrower shall have complied with its covenants in that regard if it shall have used all reasonable efforts to cause such Subsidiary to comply with the requirements of Sections 8.1 and 8.2 or to remedy any breaches thereof; and with respect to any breach of Section 8.1 or Section 8.2 caused by any Subsidiary acting or failing to act in the manner required by such Section, the Borrower’s obligation to use its reasonable efforts to prevent or remedy such breach shall only be applicable from and after the date that the Borrower becomes aware of such breach or the date the Borrower becomes aware such breach may occur, as the case may be; provided that this Section 8.3 shall not apply to (i) the covenants contained in Section 8.2(e)

 

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or 8.2(f), or (ii) any covenant if the breach thereof could reasonably be expected to have a Material Adverse Effect.

ARTICLE 9

EVENTS OF DEFAULT

 

9.1 Events of Default

Any one or more of the following occurrences is an Event of Default, but only if at the time of or during the continuance of any such occurrence a Borrowing is outstanding:

 

  (a) Failure to Pay Borrowings, Interest or Fees: The Borrower fails to repay within two (2) Business Days of the due date all or any portion of the Borrowings, or fails to pay within five (5) Business Days of the due date any interest or fees or any other amount due hereunder;

 

  (b) Voluntary Proceedings: The Borrower or any Material Subsidiary institutes proceedings to be adjudicated bankrupt or insolvent, or consents to the filing of a bankruptcy or insolvency proceeding against it, or files a petition or answer or consent seeking reorganization, readjustment, arrangement, composition or similar relief under the Companies Creditors’ Arrangement Act (Canada), the Bankruptcy and Insolvency Act (Canada), or any other bankruptcy or insolvency law or any other similar applicable law, or consents to the filing of any such petition, or consents to the appointment of a receiver, trustee or assignee in bankruptcy or insolvency of any part of its property (other than Non-Recourse Assets) which is material to the Borrower and its Subsidiaries taken as a whole, or makes a general assignment for the benefit of creditors, or becomes insolvent or generally not able to pay its debts as they become due, or admits in writing its inability to pay its debts generally as they become due, or takes any corporate action to authorize any of the foregoing; provided that an occurrence under this Section 9.1(b) which results from actions taken by a Material Subsidiary which is not a Restricted Subsidiary will not be an Event of Default if the Borrower would (in the reasonable opinion of the Majority Lenders as evidenced by their signatures on a confirmation thereof) be able to satisfy the financial tests set forth in Sections 8.1(j) and 8.2(e), calculated as of the date of such actions taken by such Material Subsidiary (and not as of the last day of the immediately preceding Fiscal Quarter);

 

  (c)

Bankruptcy Proceedings: A court having jurisdiction enters a decree or order adjudging the Borrower or any Material Subsidiary bankrupt or insolvent, or approving as properly filed a petition seeking liquidation, winding-up, reorganization, readjustment, arrangement, composition, protection or similar relief of the Borrower or a Material Subsidiary under the Companies Creditors’ Arrangement Act (Canada), the Bankruptcy and Insolvency Act (Canada) or any other bankruptcy or insolvency law or any other similar applicable law, or enters a decree or order for the appointment of a receiver, trustee or assignee in bankruptcy or insolvency of any part of its property (other than Non-Recourse Assets) which is material to the Borrower

 

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  and its Subsidiaries taken as a whole, and any such decree or order remains in force undischarged or unstayed for a period of 20 days or more; provided that an occurrence under this Section 9.1(c) which results from actions taken by or pertaining to a Material Subsidiary which is not a Restricted Subsidiary will not be an Event of Default if the Borrower would (in the reasonable opinion of the Majority Lenders as evidenced by their signatures on a confirmation thereof) be able to satisfy the financial tests set forth in Sections 8.1(j) and 8.2(e), calculated as of the date of such actions of or pertaining to such Material Subsidiary (and not as of the last day of the immediately preceding Fiscal Quarter);

 

  (d) Cross Acceleration of Extended Financing Debt: The Borrower or any Subsidiary (i) defaults in making payment when due of any Financing Debt (including all net obligations of the Borrower or any such Subsidiary pursuant to currency, interest rate and commodity price hedging and swap agreements, but excluding Borrowings) (“ Extended Financing Debt ”) in an amount in excess of the greater of US$200,000,000 and two (2%) percent of Consolidated Net Worth and such default is not remedied by the Borrower or any Subsidiary or is not waived by the lender or counterparty in respect of such Extended Financing Debt (including the lessor under any Capital Lease) within two (2) Business Days or any longer grace or cure period that is available under applicable documentation to remedy such default; or (ii) causes or permits to exist any default or event of default under any agreement or agreements evidencing Extended Financing Debt if such default or event of default results in the acceleration of the payment of an aggregate amount of Extended Financing Debt in excess of the greater of US$200,000,000 and two (2%) percent of Consolidated Net Worth;

 

  (e) Breached Representations and Warranties: Any representation or warranty made by the Borrower in this Agreement proves to have been incorrect in any material respect when made or deemed to be made hereunder, or any statement made by the Borrower in any Compliance Certificate, when made, proves to have been incorrect in any material respect and (i) if such representation or warranty is capable of rectification, such representation or warranty remains uncorrected for a period of forty-five (45) days after written notice from the Agent, or (ii) if such representation or warranty is incapable of rectification, such inaccuracy would have a Material Adverse Effect;

 

  (f)

Judgments: A final judgment or order (subject to no further right of appeal) is rendered against the Borrower or any Material Subsidiary for the payment of money in excess of the greater of US$200,000,000 and two (2%) percent of Consolidated Net Worth (other than any such judgment or order in favour of a lender that is a Non- Recourse Creditor, in respect of which such lender’s recourse pursuant to such judgment or order or otherwise is limited to the specific Project in respect of which the debt which is the subject of such judgment or order was granted was incurred) and under which enforcement proceedings have commenced and have not been stayed, and which remains undischarged or unstayed for a period of 45 days; provided that any such final judgment or order rendered only with respect to a

 

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  Material Subsidiary which is not a Restricted Subsidiary shall not be an Event of Default if the Borrower would (in the reasonable opinion of the Majority Lenders as evidenced by their signatures on a confirmation thereof) be able to satisfy the financial tests set forth in Sections 8.1(j) and 8.2(e), calculated as of the date of such final judgment or order (and not as of the last day of the immediately preceding Fiscal Quarter), which tests shall be conducted after provision has been made for the payment of such final judgment or order;

 

  (g) Enforcement of Security: The holder of an encumbrance, a lien or any other security interest lawfully takes possession of any portion of the property, other than Non-Recourse Assets, of the Borrower or any Material Subsidiary which is material to the Borrower and its Subsidiaries taken as a whole, or if a distress or execution or any similar process is lawfully levied and enforced against any such material property and remains unsatisfied for such period as would permit such property to be sold thereunder; provided that an occurrence under this Section 9.1(g) which results from the taking possession of any such property owned by a Material Subsidiary which is not a Restricted Subsidiary will not be an Event of Default if the Borrower would (in the reasonable opinion of the Majority Lenders as evidenced by their signatures on a confirmation thereof) be able to satisfy the financial tests set forth in Sections 8.1(j) and 8.2(e), calculated as of the date of such taking of possession (and not as of the last day of the immediately preceding Fiscal Quarter) and having regard to the effect of such taking of possession;

 

  (h) Failure to Provide Advice: The Borrower fails to provide advice and particulars under Section 8.1(m)(i) when required to do so and such failure remains unremedied for a period of ten (10) Business Days;

 

  (i) Failure to Perform Covenants and Agreements: The Borrower breaches or fails to duly perform any material covenant or other material term or condition of this Agreement (other than those hereinbefore dealt with in this Section 9.1), and such breach or failure is not remedied within 45 days following receipt by the Borrower of notice to do so from the Agent, or within such longer period as may be agreed to by the Majority Lenders, having regard to the subject matter of the failure, or, in the case of Sections 8.1(j) and 8.2(e), such breach or failure is not waived by or otherwise dealt with to the satisfaction of the Majority Lenders as evidenced by their signatures on a confirmation thereof within the time period for delivery of the relevant Compliance Certificate disclosing such breach, or within such longer period as may be agreed to by the Majority Lenders, having regard to the subject matter of the failure; or

 

  (j)

Agreement Not Enforceable: Except as otherwise contemplated by Article 10, this Agreement or any material provision thereof shall at any time for any reason cease to be in full force and effect, be declared to be void or voidable or shall be repudiated, or the validity or enforceability thereof shall at any time be contested by the Borrower, or the Borrower shall deny that it has any or any further liability or obligation thereunder (other than a bona fide defence asserted by the Borrower), or at

 

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  any time it shall be unlawful or impossible for the Borrower to perform any of its material obligations hereunder.

 

9.2 Occurrence of an Event of Default

Upon the occurrence and during the continuance of an Event of Default, the Agent may, at its option, and shall if so required by the Majority Lenders, by written notice to the Borrower (an “ Acceleration Notice ”), declare all or any part of the Outstandings and all other Loan Indebtedness (whether matured or unmatured) of the Borrower to the Lenders under this Agreement (including the amount of all Bankers’ Acceptances and BA Equivalent Loans, as determined by the Agent acting reasonably) to be due and payable, whereupon the Total Syndicated Commitment, all Fronting Bank Commitments and all Swing Line Commitments and any right of the Borrower to any further Borrowing shall terminate and all Loan Indebtedness (whether matured or unmatured) of the Borrower to the Lenders pursuant to this Agreement (including the amount of all Bankers’ Acceptances and BA Equivalent Loans, as determined by the Agent acting reasonably) shall be immediately due and payable without further demand or other notice of any kind, all of which are expressly waived by the Borrower; provided that upon the occurrence of an Event of Default specified in Section 9.1(b) or 9.1(c), the Total Syndicated Commitment, all Fronting Bank Commitments and all Swing Line Commitments and any right of the Borrower to any further Borrowing shall automatically terminate and all Loan Indebtedness (whether matured or unmatured) of the Borrower to the Lenders pursuant to this Agreement (including the amount of all Bankers’ Acceptances and BA Equivalent Loans, as determined by the Agent acting reasonably) shall be immediately due and payable without further demand or other notice of any kind, all of which are expressly waived by the Borrower. The Borrower shall pay to the Lenders immediately the amount due and payable pursuant to this Section 9.2, failing which the Lenders or any of them may pursue their remedies under this Agreement.

 

9.3 Lenders’ Right to Suspend the Borrowings

Where (x) an occurrence occurs that would otherwise be an Event of Default but is not an Event of Default by reason of the repayment of Borrowings or because there are no outstanding Borrowings (including, for certainty, because of any cash cover provided pursuant to Section 3.10(c) or 3.10(d)), or (y) a Default or Event of Default exists, or (z) the financial statements delivered by the Borrower disclose a likely breach of the financial tests in Section 8.1(j) or 8.2(e) which cannot be verified because the relevant Compliance Certificate has not been delivered and in respect of which the Borrower has not satisfied the Majority Lenders that such breach has been rectified, then, in each such case and notwithstanding anything else contained herein, the obligations of the Lenders to make Borrowings available to the Borrower hereunder which would increase the total Outstandings shall be suspended and shall remain suspended, and all LIBOR Interest Periods and terms of Bankers’ Acceptances, BA Equivalent Loans and Letters of Credit which commence during such period through Rollovers and Conversions shall not exceed 1 month, until, as applicable, such occurrence, Default or Event of Default has been remedied or waived and any conditions to the effectiveness (or the continued effectiveness) of such waiver are satisfied or are being complied with, as applicable.

 

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9.4 Remedies Cumulative

The Borrower expressly agrees that the rights and remedies of the Lenders under this Agreement and each of the Loan Documents delivered by the Borrower hereunder are cumulative, and in addition to, and not in substitution for, any rights or remedies provided by law; any single or partial exercise by the Lenders of any right or remedy for a default or breach of any term, covenant, condition or agreement in this Agreement or any Loan Document delivered by the Borrower hereunder does not waive, alter, affect, or prejudice any other right or remedy to which the Lenders may be lawfully entitled for the same default or breach.

 

9.5 Set-Off

 

  (a) In addition to any rights now or hereafter granted under Applicable Law but only to the extent permitted by Applicable Law and not by way of limitation of any such rights, upon the occurrence and during the continuance of an Event of Default hereunder, without prior notice to the Borrower or to any other person, such notice being expressly waived by the Borrower, the Agent and the Lenders are hereby authorized to set-off and to appropriate and to apply any and all deposits (general and special) and any other indebtedness at any time held by or owing by the Agent or such Lender to or for the credit of or the account of the Borrower against and on account of the obligations and liabilities of the Borrower to the Agent or such Lender under this Agreement, although such obligations, liabilities or claims of the Borrower may be contingent or unmatured. The Agent and the Lenders shall provide the Borrower, the Agent and each other Lender with prompt notice of the exercise of any of their rights under this Section 9.5.

 

  (b) In addition to any rights now or hereafter granted under Applicable Law but only to the extent permitted by Applicable Law and not by way of limitation of any such rights, while a Lender is a Defaulting Lender pursuant to (i) or (ii) of the definition thereof, or while a Lender Insolvency Event exists with respect to such Lender or its Lender Parent, the Borrower is hereby authorized without prior notice to such Defaulting Lender or to any other person, such notice being expressly waived by such Defaulting Lender, to set-off and to apply any and all deposits (general and special but excluding security deposits) held by such Defaulting Lender (or any Subsidiary of such Defaulting Lender) to or for the credit of or the account of the Borrower (or any Subsidiary of the Borrower) against and on account of the Borrowings and any accrued interest owing by the Borrower to such Defaulting Lender under this Agreement, regardless of whether the obligations in respect of such deposits or Borrowings are contingent or unmatured. The Borrower shall provide the Agent and the Defaulting Lender with prompt notice of the exercise of any of its rights under this Section; provided that:

 

  (i) any Centralized Banking Arrangements shall take priority over the Borrower’s rights under this Section;

 

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  (ii) prior to receipt of such notice by the Agent, the Agent shall not be obligated to reflect such set-off in the allocation of its payments to Lenders under Article 12;

 

  (iii) after receipt of such notice by the Agent, such Defaulting Lender irrevocably authorizes the Agent to rely on such notice and to allocate payments from the Borrower to the Lenders in a manner which gives effect to such set-off (notwithstanding any provisions in Article 12 to the contrary); and

 

  (iv) the Borrower agrees to indemnify the Agent and its Affiliates, directors, officers, agents and employees from any claims made against any of them by a Defaulting Lender in connection with this Section 9.5(b), all in accordance with Section 11.2 (and for such purposes a claim from a Defaulting Lender shall be deemed to be a third party claim).

 

9.6 Cash Coverage Account

Upon the occurrence of an Event of Default and in addition to any other rights or remedies of the Lenders hereunder, the Borrower, at the request of the Agent, shall deposit into a Cash Coverage Account with the Agent such amounts as may be required to satisfy obligations or liabilities of the Borrower to the Lenders under the Loan Documents in respect of Bankers’ Acceptances which have not matured or Letters of Credit which have not been drawn; provided that any such amounts not so deposited by the Borrower shall, at the option of the Lenders, be paid by the Lenders into such Cash Coverage Account and shall be deemed to constitute, without duplication of any relating Outstandings, a Prime Loan (in respect of amounts denominated in Cdn. Dollars) or a USBR Loan (in respect of amounts denominated in US Dollars).

 

9.7 Application and Sharing of Payments Following Acceleration

Except as otherwise agreed to by all of the Lenders in their sole discretion, any sum received by the Agent at any time after delivery of an Acceleration Notice or after the occurrence of an Event of Default specified in Section 9.1(b) or 9.1(c) which the Agent is obliged to apply in or towards satisfaction of sums due from the Borrower hereunder shall be applied by the Agent rateably among the Lenders and the Agent in accordance with amounts owed to the Lenders and the Agent in respect of each category of amounts set forth below, each such application to be made in the following order with the balance remaining after application in respect of each category to be applied to the next succeeding category:

 

  (a) Agent’s Fees: firstly, in or towards payment of any fees then due and payable to the Agent and the Lenders hereunder, including, without limitation, those fees payable pursuant to the letter agreement referred to in Section 5.9;

 

  (b) Agent’s and Lenders’ Expenses: secondly, rateably among the Agent and the Lenders in accordance with amounts owed to the Agent and the Lenders in respect of amounts due and payable as and by way of recoverable expenses hereunder;

 

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  (c) Interest and Fees: thirdly, rateably among the Lenders in accordance with amounts owed to the Lenders in respect of amounts due and payable as and by way of interest pursuant to Sections 3.5(f), 5.1, 5.2 and 5.3, fees pursuant to Sections 5.4 and 5.5, adjusting payments pursuant to Section 5.6, interest on overdue amounts pursuant to Section 5.7 and standby fees pursuant to Section 5.8;

 

  (d) Loan Indebtedness (other than Borrowings): fourthly, rateably among the Lenders in accordance with amounts owed to the Lenders in respect of any amount (other than Borrowings) then due and payable by the Borrower hereunder, other than amounts hereinbefore referred to in this Section 9.7; and

 

  (e) Borrowings: fifthly, in or towards repayment to the Lenders of the Borrowings then outstanding hereunder in accordance with the provisions of Section 12.11.

ARTICLE 10

CHANGE OF CIRCUMSTANCES

 

10.1 Market Disruption

 

  (a) Respecting LIBOR Loans: Notwithstanding anything to the contrary herein contained, in the event that, at any time subsequent to the giving of a notice in respect of a Drawdown, Conversion or Rollover to the Agent by the Borrower with regard to a requested LIBOR Loan, but before the date of the Drawdown, Conversion or Rollover, as the case may be:

 

  (i) the Agent (acting reasonably) determines that by reason of circumstances affecting the London interbank market, adequate and fair means do not exist for ascertaining the rate of interest with respect to, or deposits are not available in sufficient amounts in the ordinary course of business at the rate determined hereunder to fund, a requested LIBOR Loan during the LIBOR Interest Period selected;

 

  (ii) the Agent (acting reasonably) determines that the making or continuing of the requested LIBOR Loan by the Lenders has been made impracticable by the occurrence of an event which materially adversely affects the London interbank market generally; or

 

  (iii) the Agent is advised by Lenders holding at least 35% of the Total Syndicated Commitment, by written notice (each a “ LIBOR Suspension Notice ”), and such notice is received by the Agent no later than 12:00 noon (Calgary time) on the third Business Day prior to the date of the requested Drawdown, Conversion or Rollover, as the case may be, that such Lenders, acting reasonably, have determined that the LIBOR to be determined in accordance with this Agreement will not or does not represent the effective cost to such Lenders of US Dollar deposits in such market for the relevant LIBOR Interest Period;

 

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then the Agent shall give notice thereof to the Lenders and the Borrower as soon as possible after such determination, or receipt of such LIBOR Suspension Notice, as the case may be, and the Borrower shall, within one (1) Business Day after receipt of such notice from the Agent and in replacement of the notice in respect of such Drawdown, Conversion or Rollover, as the case may be, previously given by the Borrower requesting a LIBOR Loan, give the Agent a Notice of Drawdown or a Notice of Conversion, as the case may be, which specifies the Drawdown of or Conversion into another type of Borrowing or, if a Notice of Rollover in respect of an outstanding LIBOR Loan was delivered, the Conversion of the relevant LIBOR Loan on the last day of the applicable LIBOR Interest Period into another type of Borrowing which would not be affected by the notice from the Agent pursuant to this Section 10.1(a). In the event the Borrower fails to give, if applicable, a Notice of Conversion with respect to maturing LIBOR Loans which were the subject of a Notice of Rollover, such maturing LIBOR Loans shall be converted on the last day of the applicable LIBOR Interest Period into USBR Loans as if a Notice of Conversion had been given to the Agent by the Borrower pursuant to the provisions hereof. In the event the Borrower fails to give, if applicable, a replacement Notice of Drawdown with respect to a Drawdown originally requested to be by way of a LIBOR Loan, then the Borrower shall be deemed to have requested a Drawdown by way of a USBR Loan in the amount specified in the original Notice of Drawdown. The Agent shall promptly notify the Borrower if the circumstances giving rise to the LIBOR Suspension Notice no longer exist.

 

  (b) Respecting Bankers’ Acceptances: Notwithstanding anything to the contrary herein contained, if:

 

  (i) the Agent (acting reasonably), makes a determination, which determination shall be conclusive and binding upon the Borrower, and notifies the Borrower, that there no longer exists an active market for bankers’ acceptances accepted by the Lenders; or

 

  (ii) the Agent is advised by Lenders holding at least 35% of the Total Syndicated Commitment by written notice (each, a “ BA Suspension Notice ”) that such Lenders (acting reasonably) have determined that the Discount Rate will not or does not accurately reflect the discount rate which would be applicable to a sale of Bankers Acceptances accepted by such Lenders in the market for the applicable term;

then:

 

  (iii) the right of the Borrower to request Bankers’ Acceptances or BA Equivalent Loans from any Lender shall be suspended until the Agent (acting reasonably) determines that the circumstances causing such suspension no longer exist, and so notifies the Borrower and the Lenders;

 

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  (iv) any outstanding Notice of Drawdown requesting a Drawdown by way of Bankers’ Acceptances or BA Equivalent Loans shall be deemed to be a Notice of Drawdown requesting a Borrowing by way of Prime Loans in the amount specified in the original Notice of Drawdown;

 

  (v) any outstanding Notice of Conversion requesting a Conversion of a Borrowing into a Borrowing by way of Bankers’ Acceptances or BA Equivalent Loans shall be deemed to be a Notice of Conversion requesting a Conversion of such Borrowing into a Borrowing by way of Prime Loans; and

 

  (vi) any outstanding Notice of Rollover requesting a Rollover of Bankers’ Acceptance or BA Equivalent Loans shall be deemed to be a Notice of Conversion requesting a Conversion of such Borrowing into a Borrowing by way of Prime Loans.

The Agent shall promptly notify the Borrower and the Lenders under such Credit Facility of any suspension of the Borrower’s right to request the Bankers’ Acceptances or BA Equivalent Loans and of any termination of any such suspension or if the circumstances giving rise to such suspension no longer exist. A BA Suspension Notice shall be effective upon receipt of the same by the Agent if received prior to 12:00 noon (Calgary time) on a Business Day and, if not, then on the next following Business Day, except in connection with a Notice of Drawdown, Notice of Conversion or Notice of Rollover previously received by the Agent, in which case the applicable BA Suspension Notice shall only be effective with respect to such previously received Notice of Drawdown, Notice of Conversion or Notice of Rollover if received by the Agent prior to 12:00 noon (Calgary time) two Business Days prior to the proposed Drawdown Date or date of Rollover or Conversion (as applicable) applicable to such previously received Notice of Drawdown, Conversion Notice or Rollover Notice (as applicable).

 

10.2 Increased Costs or Reduced Income or Return Due to Change in Law

If any Lender (acting reasonably) makes a determination that the adoption, introduction, implementation or coming into effect of any Applicable Law, or any change therein, or any change in any existing Applicable Law or in the interpretation, administration or application of any Applicable Law by any Governmental/Judicial Body or any other entity charged with the interpretation or administration thereof, or the compliance by a Lender with any request or direction (whether or not having the force of law) of any such Governmental/Judicial Body or entity, hereafter:

 

  (a) subjects such Lender to, or causes the withdrawal or termination of any previously granted exemption with respect to, any Tax, or changes the basis of taxation, or increases any existing Tax, on payments of principal, interest, fees or other amounts payable by the Borrower to such Lender under this Agreement (except for Taxes based on the capital or overall net income or profits of such Lender or, in the case of a Lender which is a Schedule III Bank and without limiting the application of the foregoing part of this exception to such Lender, of any branch thereof);

 

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  (b) imposes, modifies or deems applicable any reserve, liquidity, cash margin, capital, deposit insurance, special deposit or similar requirements against assets held by, or deposits in or for the account of, or loans by or to, or any other acquisition of funds by, or drafts (including Bankers’ Acceptances) accepted by an office of, such Lender;

 

  (c) imposes on such Lender or expects there to be maintained by such Lender any capital adequacy or additional capital or liquidity requirements in respect of any Borrowings or undrawn Commitments, Fronting Bank Commitments or Swing Line Commitments hereunder or any other condition with respect to this Agreement; or

 

  (d) imposes on such Lender any other conditions or requirements relevant to this Agreement or the Credit Facility;

and the result of any of the foregoing shall be to increase the cost to, or reduce the amount of principal, interest, fees or other amounts received or receivable by, such Lender hereunder or such Lender’s effective return hereunder (without regard to Taxes based on capital or the overall net income or profits of such Lender or, in the case of a Lender which is a Schedule III Bank and without limiting the application of the foregoing part of this exception to such Lender, of any branch thereof, or the impact thereof) in respect of making, maintaining or funding a Borrowing hereunder or maintaining, as applicable, its Commitment, Fronting Bank Commitment or Swing Line Commitment hereunder, or cause such Lender to make any payment or forego any interest, fees or other amounts hereunder, then the Agent shall give notice thereof to the Borrower as soon as possible after such determination, and such Lender shall have no further obligation to make Borrowings of the type affected or maintain, as applicable, its Commitment, Fronting Bank Commitment or Swing Line Commitment in respect of such type of Borrowings unless prior arrangements satisfactory to such Lender are made to compensate it as hereinafter provided. Such Lender shall, acting reasonably, determine that amount of money which shall compensate such Lender for such increase in cost, reduction in principal, interest, fees or other amount received or receivable by such Lender, or such reduction in effective return hereunder, or any payment made or interest, fees or other amounts forgone (herein referred to as “ Additional Compensation ”). Notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all regulations, requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States, Canadian or other regulatory authorities, in each case pursuant to Basel III ((i) and (ii) being, the “ New Rules ”), shall in each case be deemed to be a change in Applicable Law for the purposes of this Section 10.2, regardless of the date enacted, adopted or issued, in each case (i) to the extent that such New Rules are applicable to a Lender claiming Additional Compensation, (ii) to the extent that such New Rules are materially different from Applicable Laws which are in full force and effect on the Amendment Effective Date and (iii) to the extent that such New Rules are not limited to specific financial institutions only but instead have general application to substantially all banks or their Affiliates which are subject to the New Rules in question. Upon a Lender having determined that it is entitled to Additional Compensation in accordance with the provisions of this Section 10.2, such Lender shall promptly so notify the Borrower and the Agent and shall provide the Borrower and the Agent with a photocopy of the Applicable Law, rule, guideline, regulation, treaty or official directive (or, if it is impracticable to

 

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provide a photocopy, a written summary of the same) and a certificate of a duly authorized officer of such Lender setting forth the amount of the Additional Compensation and the basis of calculation therefor, which shall be prima facie evidence of the amount of such Additional Compensation, in the absence of manifest error. The Borrower shall pay to such Lender, within ten (10) Business Days of the giving of such notice by such Lender, such Lender’s Additional Compensation, as additional interest. Each of the Lenders shall be entitled to be paid such Additional Compensation from time to time to the extent that the provisions of this Section 10.2 are then applicable, notwithstanding that any Lender has previously been paid any Additional Compensation. Each Lender agrees that it will not claim Additional Compensation from the Borrower under this Section 10.2 (i) if it is not generally claiming similar compensation from its other customers in similar circumstances; or (ii) in respect of any period greater than three (3) months prior to the delivery of notice in respect thereof by such Lender, unless the adoption, change or other event or circumstance giving rise to the claim for Additional Compensation is retroactive or is retroactive in effect. When Additional Compensation is payable to a Lender, the Borrower shall have the right, upon at least three Business Days prior written notice to the Agent (unless provided otherwise below), to either:

 

  (a) effect a Conversion of such Lender’s Lender’s Proportion of the applicable Borrowing in accordance with the provisions hereof; or

 

  (b) prepay such Lender’s Lender’s Proportion of the principal of such Borrowing together with:

 

  (i) accrued interest;

 

  (ii) such Additional Compensation as may be applicable with respect to such Lender’s Lender’s Proportion of such Borrowing to the date of such payment;

 

  (iii) in the case of LIBOR Loans, all costs, losses, premiums and expenses incurred by such Lender by reason of the liquidation or re-deployment of deposits or other funds or for any other reason whatsoever resulting from the repayment of such Lender’s Lender’s Proportion of such Borrowing, or any part thereof, on other than the last day of the applicable LIBOR Interest Period;

 

  (iv) in the case of Bankers’ Acceptances accepted by such Lender, such amount as such Lender may, in its discretion, require be deposited with such Lender in order to yield to that Lender on the maturity date of such Bankers’ Acceptances the face amount thereof; and

 

  (v) in the case of Letters of Credit, provision satisfactory to such Lender (acting reasonably) being made for the indemnification, cash collateralization or release of such Lender from its obligations relating to all outstanding Letters of Credit.

Subject to Section 12.11, any such Conversion or prepayment need not be pro rata as among the Lenders under the Credit Facility or this Agreement or otherwise in compliance with Section 3.11.

 

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10.3 Illegality

If a Lender (acting reasonably) makes a determination, which shall be conclusive and binding upon the Borrower, that the adoption, introduction or coming into effect of any Applicable Law, or any change therein, or any change in any existing Applicable Law or in the interpretation, administration or application of any Applicable Law by any Governmental/Judicial Body or any other entity charged with the interpretation or administration thereof, or the compliance by a Lender with any request or direction (whether or not having the force of law) of any such Governmental/Judicial Body or entity, hereafter makes it unlawful or impossible for such Lender to make, fund or maintain a Borrowing hereunder or to comply with, or give effect to, its obligations under this Agreement, such Lender may, by written notice thereof to the Borrower and to the Agent, declare its obligations under this Agreement in respect of such types of Borrowing to be terminated, whereupon the same shall forthwith terminate, and the Borrower shall, within the time required by such law (or at the end of such longer period as such Lender at its discretion has agreed), either:

 

  (a) effect a Conversion of such Lender’s Lender’s Proportion of such Borrowing in accordance with the provisions hereof (if such Conversion would resolve the unlawfulness or impossibility); or

 

  (b) prepay such Lender’s Lender’s Proportion of the principal of such Borrowing together with:

 

  (i) accrued interest;

 

  (ii) such Additional Compensation as may be applicable with respect to such Lender’s Lender’s Proportion of such Borrowing to the date of such payment;

 

  (iii) in the case of LIBOR Loans, all costs, losses, premiums and expenses incurred by such Lender by reason of the liquidation or re-deployment of deposits or other funds or for any other reason whatsoever resulting from the repayment of such Lender’s Lender’s Proportion of such Borrowing, or any part thereof, on other than the last day of the applicable LIBOR Interest Period;

 

  (iv) in the case of Bankers’ Acceptances accepted by such Lender, such amount as such Lender may, in its discretion, require be deposited with such Lender in order to yield to that Lender on the maturity date of such Bankers’ Acceptances the face amount thereof; and

 

  (v) in the case of Letters of Credit, provision satisfactory to such Lender (acting reasonably) being made for the indemnification, cash collateralization or release of such Lender from its obligations relating to all outstanding Letters of Credit.

Subject to Section 12.11, any such Conversion or prepayment need not be pro rata as among the Lenders under the Credit Facility or this Agreement or otherwise in compliance with Section 3.11. If any such change shall only affect a portion of such Lender’s obligations under this Agreement which

 

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is, in the opinion of such Lender, the Agent and the Borrower, severable from the remainder of this Agreement so that the remainder of this Agreement may be continued in full force and effect without otherwise affecting any of the obligations of the Agent, the other Lenders or the Borrower hereunder, such Lender shall only declare its obligations under that portion so terminated.

 

10.4 Designation of Different Lending Office

If any Lender requests Additional Compensation under Section 10.2, or the Borrower is required to pay any additional amount to the Agent on behalf of any Lender pursuant to Section 6.3(a), or if any Lender gives a notice pursuant to Section 10.3, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking the Borrowings hereunder or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 10.2 or 6.3(a), as the case may be, in the future, or eliminate the need for the notice pursuant to Section 10.3, as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous in any material respect to such Lender. The Borrower hereby agrees to pay all reasonable and documented out-of-pocket costs and expenses incurred by any Lender in connection with any such designation or assignment.

ARTICLE 11

PAYMENT OF EXPENSES AND INDEMNITIES

 

11.1 Payment of Expenses

The Borrower shall:

 

  (a) pay all reasonable legal fees and expenses incurred by the Agent in connection with the preparation, execution, delivery, syndication or operation of this Agreement or the other Loan Documents delivered by the Borrower hereunder, including any subsequent amendment hereto or thereto; and

 

  (b) pay to the Agent and each Lender all reasonable expenses incurred in the maintenance, enforcement and preservation of any of their rights under the Loan Documents delivered by the Borrower hereunder or incurred in respect of any security for the Total Syndicated Commitment provided in accordance with the Negative Pledge, including reasonable legal fees on a solicitor-client basis and out-of-pocket expenses of counsel to the Agent or such Lender.

 

11.2 General Indemnity

In addition to any liability of the Borrower to any Lender or the Agent under any other provision hereof, the Borrower shall indemnify each Lender and the Agent and their respective Affiliates, directors, officers, agents and employees (collectively, in this Section 11.2, the “ Indemnified Parties ”) and hold each Indemnified Party harmless against any losses, claims, costs, damages or liabilities (including reasonable out-of-pocket expenses and reasonable legal fees on a solicitor and his own client basis) incurred by the same as a result of or in connection with:

 

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  (a) all third party claims, suits, debts, damages, costs, losses, liabilities, penalties, obligations, judgments, charges, expenses and disbursements arising in connection with any action, suit or proceeding (whether or not an Indemnified Party is a party or subject thereto) relating to the Borrowings or the Loan Documents, including any environmental claims relating to the Borrower or any of its Subsidiaries;

 

  (b) any cost or expense incurred by reason of the liquidation or re-deployment in whole or in part of deposits or other funds required by any Lender to fund or maintain any Borrowing as a result of the Borrower’s failure to complete a Drawdown, Conversion or Rollover hereunder or to make any payment, repayment or prepayment on the date required hereunder or specified by it in any notice given hereunder;

 

  (c) subject to permitted Conversions and Rollovers of Bankers’ Acceptances and Letters of Credit hereunder, the Borrower’s failure to provide for the payment to the Agent for the account of the Lenders of the full principal amount of each Bankers’ Acceptance on its maturity date or the full amount drawn on any Letter of Credit;

 

  (d) the Borrower’s failure to pay any other amount, including, without limitation, any interest or fee, due hereunder on its due date after the expiration of any applicable grace or notice periods (subject, however, to the interest obligations of the Borrower hereunder for overdue amounts);

 

  (e) the prepayment of any outstanding LIBOR Loan before the last day of the LIBOR Interest Period in respect of such LIBOR Loan including, without limitation, any and all costs, losses, premiums or expenses incurred by reason of a liquidation or re-deployment of deposits or other funds in respect of LIBOR Loans outstanding from time to time hereunder;

 

  (f) the prepayment of any outstanding Bankers’ Acceptance before the maturity date of such Bankers’ Acceptance;

 

  (g) the Borrower’s failure to give any notice required to be given by it to the Agent or the Lenders hereunder;

 

  (h) the failure of the Borrower to make any other payment due hereunder;

 

  (i) any inaccuracy or incompleteness of the Borrower’s representations and warranties contained in Article 2;

 

  (j) any failure of the Borrower to observe or fulfil its obligations under Article 8; or

 

  (k) the occurrence of any Event of Default;

provided that this Section 11.2 shall not apply to any losses, claims, costs, damages or liabilities of any Indemnified Party claiming indemnity hereunder to the extent that the same arise by reason of the gross negligence or wilful misconduct of such Indemnified Party. Payment of an amount for which the Borrower is liable under this indemnification shall be made within 30 days from the date

 

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an Indemnified Party makes written demand for payment thereof. The provisions of this Section 11.2 shall survive the termination of the Agreement and the repayment of the obligations of the Borrower hereunder.

ARTICLE 12

THE AGENT AND THE LENDERS

 

12.1 Authorization of Agent

Each Lender irrevocably appoints and authorizes the Agent to exercise such powers, perform such duties, take such actions, make such decisions and determinations and give such consents under the Loan Documents as are required to be exercised, performed, taken, made, given or otherwise carried out by the Agent hereunder or under any other agreement between the Lenders, together with all powers reasonably incidental thereto. As to any matters not expressly required by this Agreement or by any other agreement between the Lenders to be carried out by the Agent, the Agent is not required to exercise any discretion or take or to refrain from taking any action except upon the written instructions of the Majority Lenders. Notwithstanding anything to the contrary in this Agreement, the Agent shall not be required to exercise any discretion or to take or to refrain from taking any action in any manner which is contrary to the Loan Documents, to any other agreement between the Lenders or to Applicable Law.

 

12.2 Responsibility of Agent

The Agent makes no representation or warranty, and accepts no responsibility, with respect to the due execution, legality, validity, sufficiency, enforceability or priority of any of the Loan Documents nor with respect to the due execution, legality, validity, sufficiency, enforceability, accuracy or authenticity of any documents, papers, materials or other information furnished by the Borrower (or any other Person, including the Agent) in connection with the Loan Documents, whether provided before or after the date of this Agreement. The Agent shall incur no liability to the Lenders under or in respect of the Loan Documents with respect to anything which it may do or refrain from doing in the reasonable exercise of its judgment or which may seem to it to be necessary or desirable in the circumstances, except for its gross negligence or wilful misconduct. The Agent assumes no responsibility for the payment of any of the Borrowings or other Loan Indebtedness owing hereunder by the Borrower.

 

12.3 Acknowledgement of Lenders

Each Lender acknowledges to the Agent that it has been, and will continue to be, solely responsible for making its own independent appraisal of and investigation into the financial condition, creditworthiness, environmental soundness, affairs, status and nature of the Borrower and accordingly, each Lender confirms to the Agent that it has not relied, and will not hereafter rely, on the Agent:

 

  (a)

Information: to check or inquire on its behalf into the adequacy, accuracy or completeness of any information provided by the Borrower or in connection with the

 

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  Loan Documents (whether or not such information has been or is hereafter circulated to such Lender by the Agent);

 

  (b) Performance: to inquire as to the performance by the Borrower of its obligations under the Loan Documents; or

 

  (c) Credit Review: to assess or keep under review on its behalf the financial condition, creditworthiness, environmental soundness, affairs, status or nature of the Borrower.

 

12.4 Rights and Obligations of Each Lender

The rights and obligations of each Lender under this Agreement are several and no Lender shall be obligated to make Borrowings available to the Borrower in excess of the amount of such Lender’s Syndicated Commitment. The failure of a Lender to perform its obligations under this Agreement shall neither:

 

  (a) No Liability to Other Lenders: result in any other Lender incurring any liability whatsoever; nor

 

  (b) No Relief from Obligations: relieve the Borrower or any other Lender from their respective obligations under any Loan Document.

Nothing contained herein or in any other Loan Document nor any action taken pursuant hereto or thereto shall be deemed to constitute the Lenders a partnership, joint venture or any other similar entity.

 

12.5 Determinations by Lenders

 

  (a) Lenders’ Determinations: Where the provisions of this Agreement provide that any waiver of, or any amendment to, any provision of the Loan Documents may be made, or any action, consent or other determination in connection with the Loan Documents may be taken or given, with the consent or agreement of the Majority Lenders, then any such waiver, amendment, action, consent or determination so made, so taken or so given with the consent or agreement of the Majority Lenders shall be binding on all of the Lenders and all of the Lenders shall cooperate in all ways necessary or desirable to implement and effect any such waiver, amendment, action, consent or determination consented or agreed to by the Majority Lenders.

 

  (b) Deemed Non-Consent: Unless otherwise specifically dealt with in this Agreement, in the event the Agent delivers a written notice to a Lender requesting advice from such Lender as to whether it consents or objects to any matter in connection with the Loan Documents, then, except as otherwise expressly provided herein, if such Lender does not deliver to the Agent its written consent or objection to such matter within twenty (20) Business Days of the delivery of such written notice by the Agent to such Lender, such Lender shall be deemed to have refused its consent thereto upon the expiry of such twenty (20) Business Day period.

 

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12.6 Notices between the Lenders, the Agent and the Borrower

All notices by the Lenders to the Agent shall be through the Agent’s Branch of Account and all notices by the Agent to a Lender shall be through such Lender’s Branch of Account. All notices or communications between the Borrower and the Lenders which are required or contemplated pursuant to the Loan Documents shall be given or made through the Agent at the Agent’s Branch of Account.

 

12.7 Agent’s Duty to Deliver Documents Obtained from Borrower

The Agent shall promptly deliver to each Lender, at its Branch of Account, such notices, documents, papers, materials and other information as are furnished by the Borrower to the Agent and which are not (i) notices or information relating solely to the role of the Agent, any Fronting Bank or any Swing Line Lender hereunder, or (ii) required to be furnished by the Borrower directly to the Lenders pursuant to this Agreement.

 

12.8 Arrangements for Borrowings

 

  (a) Notices by Agent: Promptly after receipt by the Agent of any Notice of Drawdown, Notice of Conversion or a Notice of Rollover, the Agent shall advise each relevant Lender of the amount, date and details of each Drawdown, Conversion and Rollover to which such notice relates and of such Lender’s share in each Borrowing, as determined by the Agent in accordance with the provisions of Sections 12.8(b) and 12.8(c).

 

  (b) Drawdowns: Subject to the terms and conditions of this Agreement, on each Drawdown Date in respect of a Drawdown, in immediately available funds for good value, each Lender will make available to the Borrower:

 

  (i) the same proportion of such Borrowing by way of Loans as the amount of such Lender’s Syndicated Commitment at such time bears to the Total Syndicated Commitment at such time, by forwarding to the Agent at the Agent’s Account for Payments the amount of Loans required to be made available by such Lender; and

 

  (ii) the same proportion of such Borrowing by way of Bankers’ Acceptances (by accepting and purchasing such Bankers’ Acceptances, or, if such Lender is a Non-Acceptance Lender, making BA Equivalent Loans in lieu thereof) as the amount of such Lender’s Syndicated Commitment at such time bears to the Total Syndicated Commitment at such time, by forwarding to the Agent at the Agent’s Account for Payments the amount of the Discount Proceeds in respect of such Bankers’ Acceptances or BA Equivalent Loans required to be accepted and purchased or made by such Lender (less the amount of applicable fees payable by the Borrower to such Lender pursuant to Section 3.5(f) or Section 5.4).

 

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  (c) Conversions and Rollovers: Subject to the terms and conditions of this Agreement, on each Borrowing Conversion Date and Borrowing Rollover Date in respect of a Conversion or Rollover of a Borrowing, in immediately available funds for good value, each relevant Lender will Convert or Rollover the amount of such Borrowing held by it.

 

12.9 Arrangements for Repayment of Borrowings

 

  (a) Prior to Acceleration: Prior to the delivery of an Acceleration Notice or the occurrence of an Event of Default specified in Section 9.1(b) or 9.1(c), upon receipt by the Agent of payments from the Borrower on account of principal, interest, fees or any other payment made to the Agent on behalf of the Lenders, the Agent shall pay over to each Lender at its Branch of Account the amount to which it is entitled under this Agreement and shall use its best efforts to make such payment to such Lender on the same Business Day on which such payment is received by the Agent. If the Agent does not remit any such payment to a Lender on the same Business Day as such payment is received in immediately available funds for good value by the Agent, the Borrower shall nevertheless be deemed to have made such payment to such Lender on such Business Day and the Agent shall pay interest thereon to such Lender until the date of payment at a rate determined by the Agent (such rate to be conclusive and binding on such Lender) in accordance with the Agent’s usual banking practice in respect of deposits of amounts comparable to the amount of such payment which are received by the Agent at a time similar to the time at which such payment is received by the Agent.

 

  (b) Subsequent to Acceleration: Following delivery of an Acceleration Notice or the occurrence of an Event of Default specified in Section 9.1(b) or 9.1(c), the Lenders shall share any payments subsequently received in accordance with Section 9.7.

 

12.10 Repayment by Lenders to Agent

 

  (a)

Where Borrower Fails to Pay: Unless the Agent has been notified in writing by the Borrower at least one (l) Business Day prior to the date on which any payment to be made by the Borrower hereunder is due that the Borrower does not intend to remit such payment, the Agent may, in its discretion, assume that the Borrower has remitted such payment when so due and the Agent may, in its discretion and in reliance upon such assumption, make available to each relevant Lender on such payment date an amount equal to the amount of such payment which is due to such Lender pursuant to this Agreement. If the Borrower does not in fact remit such payment to the Agent, the Agent shall promptly notify each relevant Lender and each such Lender shall forthwith on demand repay to the Agent the amount of such assumed payment made available to such Lender, together with interest thereon until the date of repayment thereof at a rate determined by the Agent (such rate to be conclusive and binding on such Lender) in accordance with the Agent’s usual banking practice for similar advances to financial institutions of like standing to such Lender.

 

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  (b) Where a Lender Fails to Pay: Unless the Agent has been notified in writing by a Lender at least one (l) Business Day prior to a Drawdown Date, Borrowing Conversion Date or Borrowing Rollover Date that such Lender does not intend to make available the amount required to be made available by such Lender pursuant to this Agreement on such Drawdown Date, Borrowing Conversion Date or Borrowing Rollover Date, the Agent may, in its discretion, assume that such Lender has remitted funds to the Agent in an amount equal to the amount required to be made available by such Lender pursuant to this Agreement and the Agent may, in its discretion and in reliance upon such assumption, make available to the Borrower on such Drawdown Date, Borrowing Conversion Date or Borrowing Rollover Date an amount equal to the amount required to be made available by such Lender pursuant to this Agreement. If a Lender does not in fact remit such funds to the Agent, the Agent shall promptly notify such Lender and such Lender shall forthwith remit such funds to the Agent, failing which the Borrower shall forthwith on demand repay to the Agent (without prejudice to the Borrower’s rights against such Lender) the amount made available by the Agent on behalf of such Lender, in each case together with interest thereon until the date of repayment thereof at a rate determined by the Agent (such rate to be conclusive and binding on such Lender or the Borrower, as the case may be) in accordance with the Agent’s usual banking practice for similar advances to financial institutions of like standing to such Lender.

 

12.11 Adjustments Among Lenders

 

  (a) Adjustments to Outstanding Borrowings: Each Lender agrees that, after delivery of an Acceleration Notice or the occurrence of an Event of Default specified in Section 9.1(b) or 9.1(c), it will at any time and from time to time upon the request of the Agent as required by any Lender purchase portions of the Borrowings made available by the other Lenders which remain outstanding and make any other adjustments which may be necessary or appropriate, in order that the amount of Outstandings owed to each Lender, as adjusted pursuant to this Section 12.11(a), will be in the same proportion as that Lender’s Syndicated Commitment is of the Total Syndicated Commitment at such time.

 

  (b) Application of Payments: The Lenders agree that, after delivery of an Acceleration Notice or the occurrence of an Event of Default specified in Section 9.1(b) or 9.1(c), the amount of any repayment made by the Borrower under this Agreement, and the amount of any proceeds from the exercise of any rights or remedies of the Lenders under the Loan Documents, which are to be applied against amounts owing hereunder, will be so applied in a manner so that, to the extent possible, the amount of Outstandings owed to each Lender which remain outstanding after giving effect to such application and any adjustments made pursuant to Section 12.11(a) will be in the same proportion as the amount of Outstandings owed to such Lender is of the amount of Outstandings owed to all Lenders as of the date of delivery of such Acceleration Notice or occurrence of such Event of Default, as applicable (subject to adjustment as required to reflect any Conversion of Swing Line Borrowings to Syndicated Borrowings pursuant to Section 3.13(h)).

 

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  (c) Receipt of Payments other than Borrowings: Notwithstanding anything contained in this Section 12.11, there shall not be taken into account, for the purposes of computing any amount payable to any Lender pursuant to this Section 12.11, any amount which a Lender receives as a result of any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of any monies owing by the Borrower to such Lender other than on account of liabilities arising under the Loan Documents; provided that, if at any time after delivery of an Acceleration Notice or the occurrence of an Event of Default under Section 9.1(b) or 9.1(c), a Lender receives any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of monies owing or payable to it by the Borrower in respect of liabilities of the Borrower arising under the Loan Documents, such Lender shall purchase portions of the Borrowings made available by the other Lenders which remain outstanding to the extent required so that, to the extent possible, the amount of Outstandings owed to each Lender after giving effect to such purchase and any adjustments made pursuant to Sections 12.11(a) and 12.11(b) will be in the same proportion as the amount of Outstandings owed to such Lender is of the amount of Outstandings owed to all Lenders as of the date of delivery of such Acceleration Notice or occurrence of such Event of Default, as applicable (subject to adjustment as required to reflect any Conversion of Swing Line Borrowings to Syndicated Borrowings pursuant to Section 3.13(h)).

 

  (d) Further Assurances: The Borrower agrees to be bound by and, at the request of the Agent, to do all things necessary or appropriate to give effect to any and all purchases and other adjustments made by and between the Lenders pursuant to this Section 12.11, but shall incur no increased liabilities, costs or expenses, in aggregate, by reason thereof.

 

12.12 Lenders’ Consents to Waivers, Amendments, etc.

 

  (a) Unanimous Consent: Any waiver of or any amendment to a provision of the Loan Documents which relates to:

 

  (i) (A) a change in the types of Borrowings available, (B) a decrease in the notice periods applicable thereto or in the Applicable Pricing Margin or the amount of any payments payable by the Borrower to the Lenders under this Agreement (but excluding any increase or decrease in the amount of the fronting fees which may be varied with the consent of the applicable Fronting Bank and any increase or decrease in the amount of agency fees which may be varied with the consent of the Agent) or (C) an extension of the dates of any payments payable by the Borrower to the Lenders under this Agreement other than as provided for herein;

 

  (ii) a change in any Commitment of any Lender other than as provided for herein;

 

  (iii) a change in the definition of “Event of Default”;

 

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  (iv) a change in the definition of “Lender’s Proportion” or any other provision hereof that requires treatment of Lenders on a pro rata basis;

 

  (v) a change in the definition of “Majority Lenders”;

 

  (vi) a change in the definition of “Maturity Date”;

 

  (vii) any release of any guarantee or security provided by a Subsidiary for the benefit of the Lenders hereunder;

 

  (viii) any matter which, pursuant to the Loan Documents, specifically requires the consent or agreement of each or all of the Lenders;

 

  (ix) the voting rights given to a Defaulting Lender pursuant to the proviso in Section 12.20(a)(ii); or

 

  (x) the provisions of this Section 12.12(a);

shall bind the Lenders only if such waiver or amendment is agreed to in writing by all of the Lenders.

 

  (b) Majority Consent: Subject to Section 12.12(a), and except as otherwise provided in the Loan Documents, any waiver of, or any amendment to, any provision of the Loan Documents (including a waiver of a Default or an Event of Default) and any action, consent or other determination in connection with the Loan Documents shall bind all of the Lenders if such waiver, amendment, action, consent or other determination is agreed to in writing by the Majority Lenders.

 

  (c) Agent’s Consent: Any waiver of, or any amendment to, any provision of the Loan Documents which relates to the rights or obligations of the Agent shall require the agreement of the Agent thereto.

 

  (d) Swing Line Lenders’ Consent : Any waiver of, or any amendment to, any provision of the Loan Documents which relates to the rights or obligations of the Swing Line Lenders shall require the agreement of all of the Swing Line Lenders thereto.

 

  (e) Fronting Banks’ Consent : Any waiver of, or any amendment to, any provision of the Loan Documents which relates to the rights or obligations of the Fronting Banks shall require the agreement of all of the Fronting Banks thereto; provided that, in the case of fronting fees, only the agreement of the relevant Fronting Bank shall be required.

 

  (f) Defaulting Lender’s Consent : Any waiver or amendment described in the proviso in Section 12.20(a)(ii) shall require the agreement of the Defaulting Lender referred to in such proviso.

 

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12.13 Reimbursement of Agent’s Expenses

Each Lender agrees that it will indemnify the Agent for its Lender’s Proportion of any and all costs, expenses and disbursements (including, without limitation, those costs and expenses referred to in Section 11.1) which may be incurred or made by the Agent in good faith in connection with the Loan Documents, and agrees that it will, on written demand detailing such costs, expenses and disbursements, reimburse the Agent for any such costs, expenses or disbursements for which the Agent is not promptly reimbursed at any time by the Borrower. The Agent may refrain from exercising any right, power or discretion or taking any action to protect or enforce the rights of any Lender under the Loan Documents until it has been so reimbursed.

 

12.14 Reliance by Agent on Notices, etc.

The Agent shall be entitled:

 

  (a) Reliance on Written Documents: to rely upon any writing, letter, written notice, certificate, telex, facsimile copy, cable, statement, order or other document believed by the Agent to be genuine and correct and to have been signed, sent or made by the proper person or persons; and

 

  (b) Reliance on Legal Advice: with respect to legal matters, to act upon advice of legal advisors selected by the Agent (including in-house counsel of the Agent) concerning all matters pertaining to the Loan Documents and the Agent’s duties thereunder;

and the Agent shall assume no responsibility and shall incur no liability to the Borrower or any Lender by reason of relying on any such document or acting on any such advice.

 

12.15 Relations with Borrower

Except for the transactions provided for in this Agreement, each Lender may deal with the Borrower in all transactions and generally do any banking business with, or provide any financial services to, the Borrower without having any liability to account to the other Lenders therefor. With respect to Royal’s (or any successor Agent’s) Commitment and Lender’s Proportion, Royal (or any successor Agent) shall have the same rights and powers under this Agreement as any other Lender and may exercise the same as though it were not the Agent.

 

12.16 Successor Agent

The Agent shall resign if at any time:

 

  (a) (i) (A) the Commitment of the Agent in its capacity as a Lender is less than $250,000,000, at least one other Lender has a Commitment which is greater than the Commitment of the Agent in its capacity as a Lender, and such other Lender is willing to act as Agent or (B) the Agent is a Defaulting Lender and another Lender selected by the Borrower is willing to act as Agent; and

(ii) the Borrower demands by written notice to the Agent that the Agent resign;

 

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in which circumstances such other Lender shall be appointed as Agent hereunder; or

 

  (b) it is no longer a Lender hereunder by reason of an assignment of its rights and obligations under this Agreement and the Loan Documents pursuant to Section 15.9 and, in such event, it shall provide 30 days’ prior written notice of any such intended assignment to each of the Lenders and the Borrower.

The Agent may resign at any time by giving 30 days’ prior written notice thereof to each of the Lenders and the Borrower, and the Agent may be removed at any time for cause by the Lenders, other than the Agent in its capacity as a Lender (the “ Remaining Lenders ”), provided that Remaining Lenders holding Commitments of eighty percent (80%) or more of the aggregate Commitments of all the Remaining Lenders consent to such removal. Upon any such resignation or removal, other than in the circumstances described in paragraph (a) above, the Remaining Lenders shall have the right to appoint a successor agent with the written approval of the Borrower (such approval not in any event to be unreasonably withheld). Any successor agent appointed under this Section 12.16 shall be a financial institution which has offices in Calgary, Alberta and Toronto, Ontario. If no successor agent shall have been appointed by the Remaining Lenders and shall have accepted such appointment within 30 days after the retiring Agent’s giving of notice of resignation, or the Remaining Lenders’ removal of the retiring Agent, then the retiring Agent may, on behalf of the Lenders and with the written approval of the Borrower (such approval not to be unreasonably withheld), appoint a successor agent. Should the Remaining Lenders and the retiring Agent fail to appoint a successor agent as aforesaid within 30 days of the aforesaid resignation or removal, the Borrower may appoint a financial institution as successor agent provided the long term debt of such financial institution (if not a Lender) or its parent entity (if not a Lender) is assigned a rating of A2 or better by Moody’s. Upon the acceptance of any appointment as Agent by a successor agent, such successor agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent as Agent, and the retiring Agent shall be discharged from its duties and obligations under this Agreement as Agent. After any retiring Agent’s resignation or removal hereunder as the Agent, the provisions of this Agreement shall continue in effect for its benefit and for the benefit of the Lenders in respect of any actions taken or omitted to be taken by the retiring Agent while it was acting as the Agent.

 

12.17 Change of Schedule I Reference Bank

The Agent shall, with the prior written consent of the Borrower (such consent not to be unreasonably withheld) appoint another Lender (with the latter’s consent) to act as the Schedule I Reference Bank in replacement of the Schedule I Reference Bank if:

 

  (a) Assignment of Rights: the Schedule I Reference Bank assigns, subject to the provisions of Section 15.9, all its rights hereunder or otherwise ceases to be a Lender; or

 

  (b) Giving of Notice of Intention: the Schedule I Reference Bank gives notice of its intention to cease being the Schedule I Reference Bank.

 

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12.18 Indemnity of Agent

Each Lender hereby agrees to indemnify the Agent (to the extent not reimbursed by the Borrower), rateably as to its Lender’s Proportion, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Agent, in any way relating to or arising out of the Loan Documents or any action taken or omitted by Agent under or in respect of the Loan Documents; provided that the Lenders shall not be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Agent’s gross negligence or wilful misconduct (as determined by a final non-appealable judgment of a court of competent jurisdiction). Without limiting the generality of the foregoing, each Lender agrees to reimburse the Agent promptly upon demand for its Lender’s Proportion of any out-of-pocket expenses (including counsel fees) incurred by the Agent in connection with the preservation of any rights of the Agent or the Lenders under, or the enforcement of, or legal advice in respect of rights or responsibilities under, the Loan Documents, but only to the extent that the Agent is not reimbursed for such expenses by the Borrower.

 

12.19 Cash Collateral and Withholding from a Defaulting Lender

 

  (a) Each Defaulting Lender shall be required to provide to the Agent cash in such amount, as determined from time to time by the Agent in its reasonable discretion, equal to all obligations of such Defaulting Lender which are either then owing under this Agreement or, in the case of contingent obligations under any outstanding Letters of Credit or Swing Line Borrowings (after giving effect to the re-allocation provisions in Section 12.20), may become owing to any Fronting Bank or Swing Line Lender.

 

  (b) The Agent shall be entitled to withhold from any Defaulting Lender’s Lender’s Proportion of all payments received from the Borrower hereunder such amount as such Defaulting Lender is required to provide as cash collateral under Section 12.19(a) and the Agent is entitled to set-off such amounts against such Defaulting Lender’s defaulted obligations to fund amounts previously required to be paid by such Defaulting Lender under this Agreement and to purchase participations previously required to be purchased by such Defaulting Lender under this Agreement.

 

  (c) All funds received by the Agent pursuant to Sections 12.19(a) and 12.19(b) shall be deposited by the Agent in one or more cash collateral accounts in the name of the Agent, which amounts shall be used by the Agent:

 

  (i) first, to reimburse the Agent for any amounts owing to it, in its capacity as Agent, by the Defaulting Lender pursuant to any Loan Document;

 

  (ii)

second, to repay on a pro rata basis the incremental portion of any Loans made by a Non-Defaulting Lender pursuant to Section 12.20 in order to fund a funding shortfall created by a Defaulting Lender and, upon receipt of such

 

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  repayment, each such Non-Defaulting Lender shall be deemed to have assigned to the Defaulting Lender such incremental portion of such Loans; and

 

  (iii) third, to cash collateralize all other contingent obligations of such Defaulting Lender to the Agent, any Fronting Bank or any Swing Line Lender which are outstanding pursuant to this Agreement in such amount as shall be determined from time to time by the Agent in its reasonable discretion;

provided that any such funds in excess of such Defaulting Lender’s defaulted obligations shall be paid to the Defaulting Lender.

 

  (d) For greater certainty and in addition to the foregoing, neither the Agent nor any of its Affiliates nor any of their respective shareholders, officers, directors, employees, agents or representatives shall be liable to any Lender (including, without limitation, a Defaulting Lender) for any action taken or omitted to be taken by it in connection with amounts payable by the Borrower to a Defaulting Lender and received and deposited by the Agent in a cash collateral account and applied in accordance with the provisions of this Agreement, except for the gross negligence or wilful misconduct of the Agent (as determined by a final non-appealable judgment of a court of competent jurisdiction).

 

12.20 Funding if there is a Defaulting Lender

 

  (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:

 

  (i) the standby fees payable pursuant to Section 5.8 shall cease to accrue on the unused portion of the Commitment(s) of such Defaulting Lender if and for so long as such Lender is a Defaulting Lender pursuant to (i) or (ii) of the definition thereof or a Lender Insolvency Event exists with respect to such Lender or its Lender Parent;

 

  (ii)

a Defaulting Lender shall not be included in determining whether, and the Commitments and Lender’s Proportions of such Defaulting Lender shall be excluded in determining whether all Lenders or the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 12.12); provided that any waiver or amendment that (A) applies to such Defaulting Lender in a manner that differs in any material respect from its application to other affected Lenders, (B) increases any Commitment of such Defaulting Lender, (C) extends any Maturity Date applicable to such Defaulting Lender, (D) decreases the Applicable Pricing Margin applicable to such Defaulting Lender or (E) postpones, reduces or waives any principal payment due to such Defaulting

 

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  Lender hereunder shall in each case require the consent of such Defaulting Lender; and

 

  (iii) for certainty, the Borrower shall retain and reserve its other rights and remedies respecting each Defaulting Lender;

provided that the Agent shall only be required to give effect to (i) and (ii) above if the Agent has actual knowledge that a Lender is a Defaulting Lender. If the Agent acquires actual knowledge that a Lender is a Defaulting Lender, then the Agent shall promptly notify the Borrower and the other Lenders that such Lender is a Defaulting Lender (and such Lender shall be deemed to have consented to such disclosure); provided that, for certainty, the Agent shall have no duty to inquire as to whether any Lender is a Defaulting Lender.

 

  (b) If the Agent has actual knowledge that a Lender is a Defaulting Lender at the time that the Agent receives a Notice of Drawdown, a Notice of Rollover that relates to a Letter of Credit or a Notice of Conversion (or deemed notice) that either relates to a Swing Line Borrowing or will result in a currency conversion, then each Non- Defaulting Lender shall fund its Lender’s Proportion of such affected Loan (and, in calculating such Lender’s Proportion, the applicable Commitment of each such Defaulting Lender shall be ignored); provided that such re-allocation may only be effected if and to the extent that (i) such re-allocation would not cause any Non- Defaulting Lender’s Lender’s Proportion of all Borrowings to exceed its applicable Commitment(s) and (ii) the conditions precedent in Sections 7.2(a) and 7.2(b) are satisfied at such time. Each Defaulting Lender agrees to indemnify each Non- Defaulting Lender for any amounts paid by such Non-Defaulting Lender under this Section 12.20 and which would otherwise have been paid by the Defaulting Lender if its applicable Commitment had been included in determining the Lender’s Proportion of such affected Loans.

 

  (c) If any Letter of Credit is outstanding at the time that a Lender becomes a Defaulting Lender then:

 

  (i) all or any part of such Defaulting Lender’s Lender’s Proportion of such Letter of Credit shall be re-allocated among the Non-Defaulting Lenders in accordance with their respective Lender’s Proportions; provided that such re-allocation may only be effected if and to the extent that (A) such re-allocation would not cause any Non-Defaulting Lender’s Lender’s Proportion of all Borrowings to exceed its applicable Commitment(s) and (B) the conditions precedent in Sections 7.2(a) and 7.2(b) are satisfied at such time;

 

  (ii)

if the re-allocation described in clause (i) above cannot be effected, or can only partially be effected, then such Defaulting Lender shall, within one (1) Business Day following notice by the Agent, provide cash collateral for such Defaulting Lender’s Lender’s Proportion of such Letter of Credit (after giving effect to any partial re-allocation pursuant to clause (i) above) in accordance

 

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  with the procedures set forth in Section 12.19 for so long as such Letter of Credit is outstanding; and

 

  (iii) if the Lender’s Proportions of the Non-Defaulting Lenders are re-allocated pursuant to this Section 12.20(c), then the issuance fees payable to the Lenders pursuant to Section 5.5 shall be adjusted to give effect to such re-allocations in accordance with each such Non-Defaulting Lender’s Lender’s Proportions.

 

  (d) So long as any Lender is a Defaulting Lender, no Fronting Bank shall be required to issue, amend or increase any Letter of Credit, and no Swing Line Lender shall be required to make any Swing Line Borrowing, unless such Fronting Bank or Swing Line Lender, as applicable, is satisfied that the related exposure will be 100% covered by the Commitments of the Non-Defaulting Lenders and/or cash collateralized in accordance with Section 12.20(c), and participating interests in any such newly issued or increased Letter of Credit or Swing Line Borrowing shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 12.20(b) or 12.20(c)(i) as applicable (and Defaulting Lenders shall not participate therein).

 

  (e) If any Lender shall cease to be a Defaulting Lender, then, upon becoming aware of such change, the Agent shall notify the Non-Defaulting Lenders and (in accordance with the written direction of the Agent) such Lender (which has ceased to be a Defaulting Lender) shall purchase, and the Non-Defaulting Lenders shall on a rateable basis sell and assign to such Lender, portions of such Loans equal in total to such Lender’s Lender’s Proportion thereof without regard to this Section 12.20.

 

  (f) Each Defaulting Lender hereby indemnifies the Borrower for any losses, claims, costs, damages or liabilities (including reasonable out-of-pocket expenses and reasonable legal fees on a solicitor and his own client basis) incurred by the Borrower as a result of such Defaulting Lender failing to comply with the terms of this Agreement including any failure to fund its portion of any Loans required to be made by it hereunder.

 

12.21 Amendment to this Article 12

Save and except for the provisions of Sections 12.5, 12.6, 12.11(d), 12.12(a), 12.12(b), 12.15, 12.16, 12.17, 12.19, 12.20 and this Section 12.21, the provisions of this Article 12 may be amended or added to from time to time without the agreement of the Borrower, provided such amendment or addition does not adversely affect any rights of the Borrower hereunder or increase, in aggregate, the liabilities, costs, expenses or reporting requirements of the Borrower hereunder. A copy of the instrument evidencing such amendment or addition shall be forwarded by the Agent to the Borrower as soon as practicable following the execution thereof.

 

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ARTICLE 13

NOTICES

 

13.1 Method of Giving Notice

Any notice or other document required or permitted to be given by a party pursuant to this Agreement (in this Article referred to as a “ Notice ”), if no particular manner is specified in which it is to be given, shall be in writing and shall be delivered by hand or transmitted by facsimile addressed in accordance with the particulars set forth (i) in the case of the Borrower, opposite the signature of the Borrower hereto, (ii) in the case of the Agent, as set forth in Schedule “J” or (iii) in the case of any Lender, as set out in its Administrative Questionnaire provided to the Agent.

 

13.2 Change of Address

A party shall have the right to change any of the particulars of its address or its Branch of Account or place for Notices under Section 12.6 by giving a Notice in accordance with this Article.

 

13.3 Deemed Receipt

Any Notice given in accordance with the foregoing provisions shall be conclusively deemed received:

 

  (a) if delivered by hand: if given to the Person to whose attention such Notice is addressed, at the time of actual receipt; if given to a responsible Person at the address of the party to which the Notice is directed, two (2) hours following receipt by such responsible Person, provided that if such time of deemed receipt is not within the hours during which business is normally conducted by the recipient party, then such Notice shall be deemed received at the next commencement of business on a day that business is normally conducted; and

 

  (b) if given by facsimile: if the time of transmission is stated in such Notice, two (2) hours following the time so stated, provided that if such time of deemed receipt is not within the hours during which business is normally conducted by the recipient party, then such Notice shall be deemed received at the next commencement of business on a day that business is normally so conducted; provided that if the time of transmission is not so stated in such Notice, it shall be deemed received at the next commencement of business on a day which business is normally conducted by the recipient party.

ARTICLE 14

GOVERNING LAW AND JUDGMENT CURRENCY

 

14.1 Governing Law

Without prejudice to or limitation of any other rights or remedies available under the laws of any jurisdiction where property or assets of the Borrower may be, the parties agree that this

 

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Agreement is conclusively deemed to be made under and for all purposes to be governed by and construed in accordance with the laws of the Province of Alberta and the laws of Canada applicable therein.

 

14.2 Jurisdiction

 

  (a) Submission: The courts of the Province of Alberta shall have jurisdiction to determine any disputes in connection with the Loan Documents and each of the Lenders, the Agent and the Borrower accordingly irrevocably submits to the jurisdiction of the courts of the Province of Alberta.

 

  (b) Forum Convenience and Enforcement Abroad: The Borrower, each Lender and the Agent each hereby:

 

  (i) waives objection to the courts of the Province of Alberta on grounds of inconvenient forum or otherwise as regards proceedings in connection with the Loan Documents; and

 

  (ii) agrees that a judgment or order of a court of the Province of Alberta in connection with a Loan Document is conclusive and binding on it (subject to any rights or appeal in respect thereof) and may be enforced against it in the courts of any other jurisdiction.

 

  (c) Non-Exclusivity: Nothing in this Section 14.2 limits the right of a Lender or the Agent or the Borrower to bring proceedings in connection with any Loan Document:

 

  (i) in any other court of competent jurisdiction; or

 

  (ii) concurrently in more than one jurisdiction.

 

14.3 Judgment Currency

If, for the purpose of obtaining judgment in any court or for any other related purpose hereunder, it is necessary for a Lender to convert an amount due hereunder in the currency in which it is due (the “ Original Currency ”) into another currency (the “ Second Currency ”), the rate of exchange to be applied in respect of such conversion shall be that at which, in accordance with normal banking procedures, such Lender could purchase, in the New York foreign exchange market, the Original Currency with the Second Currency on the date which is one (1) Business Day preceding that on which judgment is given. The Borrower agrees that its obligation in respect of any Original Currency due from it to such Lender hereunder shall, notwithstanding any judgment or payment in the Second Currency, be discharged only to the extent that on the Business Day following receipt of any sum so paid or adjudged to be due hereunder in the Second Currency such Lender may, in accordance with normal banking procedures, purchase, in the New York foreign exchange market, the Original Currency with the amount of the Second Currency so paid or so adjudged to be due; and if the amount of the Original Currency so purchased is less than the amount originally due in the Original Currency, the Borrower agrees that the deficiency shall be a separate obligation of the Borrower independent from its other obligations under this Agreement, and which shall give such

 

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Lender a cause of action which shall continue in full force and effect notwithstanding any such judgment, or order to the contrary, and the Borrower agrees, notwithstanding any such payment or judgment, to indemnify such Lender against any such loss or deficiency. If the amount of the Original Currency so purchased is greater than the amount originally due to the Agent or any Lender, the Agent or such Lender, as the case may be, agrees to return the amount of any excess to the Borrower (or to any other Person who may be entitled thereto under Applicable Law).

ARTICLE 15

MISCELLANEOUS

 

15.1 Exchange and Confidentiality of Information

 

  (a) The Borrower agrees that the Agent and each Lender may provide any assignee or participant or any bona fide prospective assignee or participant pursuant to Section 15.9 with any information concerning the Borrower and its Subsidiaries provided such Person agrees in writing with the Agent or such Lender for the benefit of the Borrower to be bound by a like duty of confidentiality to that contained in this Section.

 

  (b) Each of the Agent and the Lenders acknowledges the confidential nature of the financial, operational and other information and data provided and to be provided to them by the Borrower pursuant to the Loan Documents (the “ Information ”) and agrees to maintain the confidentiality of the Information; provided , however , that:

 

  (i) the Agent and each of the Lenders may disclose all or any part of the Information if, in their reasonable opinion, such disclosure is required (A) by their respective auditors or (B) in connection with any judicial, administrative or governmental proceedings, including proceedings initiated under or in respect of this Agreement;

 

  (ii) the Agent and each of the Lenders may disclose any Information required to be disclosed by any Applicable Law or by applicable treaty, order, policy or directive having the force of law, to the extent of such requirement;

 

  (iii) the Agent and each of the Lenders may disclose the Information to any Governmental/Judicial Body (including any self-regulatory agency or authority) having jurisdiction over it upon the request thereof;

 

  (iv) the Agent and each of the Lenders may provide any Affiliate thereof with the Information on a “need to know” basis; provided that each such Affiliate shall be under a like duty of confidentiality to that contained in this Section 15.1 and further provided that the Agent or the Lender, as the case may be, providing the Information shall be responsible for any breach by its Affiliate of the aforementioned like duty of confidentiality;

 

  (v)

the Agent and each of the Lenders may provide Lenders’ counsel and their other agents and professional advisors with any Information; provided that

 

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  such advisors shall be under a like duty of confidentiality to that contained in this Section 15.1 and further provided that the Agent or the Lender, as the case may be, providing the Information shall be responsible for any breach by such advisors of the aforementioned like duty of confidentiality;

 

  (vi) the Agent and each of the Lenders may disclose Information to any actual or prospective counterparty to any securitization, swap or derivative transaction relating to the Borrower; provided that such counterparty or other Person agrees in writing to be under a like duty of confidentiality to that contained in this Section and such disclosure is limited solely to the Information necessary for the transaction in question;

 

  (vii) the Agent and each of the Lenders may disclose any Information: (A) which is or becomes readily available to the public (other than by a breach hereof, including, for certainty, by a breach hereof by a Person for which the applicable Lender or the Agent is responsible), (B) which the Agent or the relevant Lender can show was, prior to receipt thereof from the Borrower, lawfully in the Agent’s or Lender’s possession from a source other than the Borrower or a representative of the Borrower and not then subject to any obligation on its part to maintain confidentiality, or (C) which the Agent or the relevant Lender received from a third party who was not, to the actual knowledge of the Agent or such Lender, under a duty of confidentiality to the Borrower at the time the information was so received;

 

  (viii) the Agent and each of the Lenders may disclose all or any part of the Information so as to enable the Agent and the Lenders to (A) initiate any lawsuit against the Borrower or to defend any lawsuit commenced by the Borrower the issues of which specifically relate to the Information, but only to the extent such disclosure is necessary to the initiation or defense of such lawsuit or (B) enforce any rights or remedies under any Loan Document, but only to the extent such disclosure is necessary to such enforcement;

 

  (ix) the Agent and each of the Lenders may disclose all or any part of the Information to any other party to this Agreement; and

 

  (x) the Agent and each of the Lenders may disclose all or any part of the Information with the prior written consent of the Borrower.

 

  (c) The provisions of this Section 15.1 shall survive hereunder for a period of five years following the termination of the Agreement and the repayment of all Loan Indebtedness by the Borrower to the Agent and the Lenders.

 

15.2 Severability

Any provision of this Agreement which is or becomes prohibited or unenforceable in any jurisdiction does not invalidate, affect or impair the remaining provisions; any prohibition or

 

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unenforceability in any jurisdiction does not invalidate or render unenforceable the provision concerned in any other jurisdiction.

 

15.3 Amendments and Waivers

No amendment, modification or waiver of any provision of this Agreement or consent to any departure by the Borrower from any provision of this Agreement is effective against the Agent or the Lenders except in accordance with Section 12.12 and then the amendment, modification, waiver or consent is effective only in the specific instance and for the specific purpose for which it is given. Any waiver by the Lenders of the strict observance, performance or compliance with any term, covenant, condition or agreement of this Agreement, and any indulgence granted by the Lenders, is not a waiver of any subsequent default.

 

15.4 Survival of Representations

All representations and warranties made pursuant to this Agreement survive the execution and delivery of this Agreement.

 

15.5 Whole Agreement

This Agreement, together with the other Loan Documents delivered by the Borrower hereunder, constitutes the whole and entire agreement between the parties pertaining to the subject matter hereof and, except as provided herein, cancels and supersedes any prior agreements, undertakings, declarations and representations, written or verbal, pertaining to the subject matter hereof.

 

15.6 Term of Agreement

The term of this Agreement shall continue until the later of the date on which the Lenders have no further Commitments hereunder and the date on which the Borrower has paid to the Agent and the Lenders all Loan Indebtedness owing to them under the Loan Documents.

 

15.7 Time of Essence

Time shall be of the essence of this Agreement.

 

15.8 Substitution of Lender

In the event:

 

  (a) the Borrower is required to pay any Lender any additional amounts as a result of applying Section 6.3 or Article 10 or receives a notice as contemplated under Section 10.1 or 10.3;

 

  (b) any Lender shall become a Defaulting Lender; or

 

  (c)

any Lender shall withhold its approval to a proposed consent under, waiver of or amendment to the Loan Documents which requires unanimous approval of the

 

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  Lenders under the Loan Documents (any such Lender being a “ Non-Consenting Lender ”);

(any such Lender being a “ Subject Lender ”), the Borrower may, in its sole discretion (i) request the Agent to use reasonable efforts to obtain a replacement financial institution satisfactory to the Borrower and the Agent to acquire and assume all or part of the Subject Lender’s Borrowings and Commitment (a “ Replacement Lender ”); (ii) request the Subject Lender to use reasonable efforts to obtain a Replacement Lender satisfactory to the Borrower and the Agent to acquire and assume all or part of the Subject Lender’s Loan Indebtedness and Commitments; (iii) request one or more of the other Lenders to acquire and assume all or part of the Subject Lender’s Loan Indebtedness and Commitments (there being no obligation on the other Lenders to do so); (iv) designate a Replacement Lender acceptable to the Agent, acting reasonably, to acquire and assume all or part of the Subject Lender’s Loan Indebtedness and Commitments; (v) elect to terminate all of the non-assigned Commitments of the Subject Lender on 15 days’ notice to the Agent and such Lender, without terminating any or all of the Commitments of any other Lenders; and (vi) any combination of the foregoing. Any such replacement, acquisition and assumption, designation or termination shall only be effective upon the Subject Lender receiving, as applicable, payment of, or the purchase price for, all loans, interest and fees accrued hereunder to the date of such event, or such lesser amount as may be agreed by the Subject Lender, and adequate provision, satisfactory to the Subject Lender (acting reasonably), being made for (w) payment at maturity of the face amount of Bankers’ Acceptances outstanding hereunder which were accepted by the Subject Lender; (x) indemnification, cash collateralization or release of the Subject Lender from its obligations in respect of any outstanding Letters of Credit or Swing Line Borrowings including its obligations under Sections 3.7(d) and 3.13(h); (y) any costs, losses, premiums or expenses incurred by the Subject Lender by reason of a liquidation or re-deployment of deposits or other funds in respect of LIBOR Loans outstanding hereunder; and (z) in any case, payment of all other amounts accrued to the date of such event which are owed to the Subject Lender hereunder. Any such acquisition and assumption by a Replacement Lender shall be made pursuant to and in accordance with the provisions of the last 3 sentences of Section 15.9(a), mutatis mutandis . Any such replacement or repayment of a Non-Consenting Lender shall only be permitted if, after doing so, the proposed consent, waiver or amendment will be approved in accordance with the Loan Documents.

 

15.9 Successors and Assigns

 

  (a)

Assignments: Subject to Section 8.2(c), the Borrower may not assign its rights or obligations hereunder without the prior written consent of all of the Lenders. If an Event of Default has occurred and is continuing, a Lender may, at the Borrower’s cost and expense, with the prior consent of the Agent, the Fronting Banks and the Swing Line Lenders (such consent not to be unreasonably withheld) but without the Borrower’s consent, assign in whole or in part its rights and obligations under this Agreement and the other Loan Documents to any Person (other than the Borrower or any of its Subsidiaries). If no Event of Default has occurred and is continuing, a Lender may, at its sole cost and expense, with the prior consent of the Agent, the Fronting Banks, the Swing Line Lenders and the Borrower (such consents not to be unreasonably withheld), assign in whole or in part, its rights and obligations under this Agreement and the other Loan Documents to any Person (other than the

 

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  Borrower or any of its Subsidiaries); it being agreed by each Lender that if no Event of Default has occurred and is continuing, it shall not make any such assignment which does not comply with this sentence. If no Event of Default has occurred and is continuing, no assignment of a part of the rights and obligations of a Lender hereunder shall (i) be less than an aggregate of US$10,000,000 of the assigning Lender’s Commitments unless the assigning Lender’s Commitments are then less than US$10,000,000 in which case the assignment shall be of the whole of the assigning Lender’s Commitments, (ii) be made in increments of less than US$1,000,000, unless the Commitments being assigned consist of the whole of the assigning Lender’s Commitments, or (iii) result in any Lender’s Commitments, after giving effect to a partial assignment of that Lender’s Commitments amounting to less than US$10,000,000. Assignments shall be substantially in the form of Schedule “I”. Upon any assignment by a Lender to a Person (a “ Permitted Assignee ”) in accordance with the provisions of this Section 15.9, such Lender shall pay a fee of US$3,500 as a processing fee to the Agent and shall cause such Permitted Assignee to be substituted for such Lender in respect of the rights and obligations under the Loan Documents which are so assigned; the Agent shall, and is hereby authorized by the Borrower and each Lender to, issue a revised Schedule “J” giving effect to such assignment; and the assigning Lender shall, as of the effective date thereof, be released from its obligations to the Borrower hereunder relating to the assigned interests arising subsequent to such date to the extent thereof. Any such assignment shall not increase, in aggregate, the liabilities (by way of withholding tax, any obligation to pay additional amounts pursuant to Section 6.3 or Additional Compensation pursuant to Article 10, or otherwise), costs and out-of-pocket expenses of the Borrower hereunder, other than the requirement to pay any costs and expenses incurred by the Lenders in completing any assignment by the Borrower, or by a Lender if an Event of Default has occurred and is continuing; provided that an assignment shall be deemed not to increase the liabilities, costs and expenses of the Borrower hereunder solely due to the fact that the assignee is a Schedule II Bank or a Schedule III Bank thereby potentially resulting in a higher Discount Rate than would be the case with a Schedule I Bank, or that such assignment increases the number of Lenders.

 

  (b) Participations: The Borrower agrees that a Lender may, with the prior consent of the Agent and the Borrower (such consents not to be unreasonably withheld), sell or agree to sell a participation (a “ Participation ”) to a Person (a “ Participant ”) in all or any part of any Borrowings made or to be made by it; provided that upon the sale of any such Participation, the Participant purchasing such Participation shall not have any rights under any of the Loan Documents and the Borrower shall not have any obligations to such Participant, and all amounts payable by the Borrower under this Agreement shall be determined pursuant to this Agreement solely as between such Lender and the Borrower as if such Lender had not sold or agreed to sell such Participation. Notwithstanding the foregoing, the consent of the Borrower shall not be required in connection with any Participation which is sold (i) to an Affiliate of the selling Lender or (ii) after an Event of Default has occurred and is continuing.

 

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  (c) Rights and Obligations of a Lender on a Participation: Notwithstanding anything herein to the contrary, the sale by a Lender of a Participation to a Participant shall not affect the Lender’s Proportion of such Lender nor otherwise alter the obligations of such Lender to the Borrower pursuant to this Agreement, and such Lender shall continue to perform fully all of its obligations to the Borrower under this Agreement pursuant to the terms hereof, regardless of any failure to perform by any Participant or any other term, condition or event relating to any Participation. Any Participant’s rights against such Lender and obligations in favour of such Lender in respect of such Participation shall be those set forth in any agreement executed by such Lender and such Participant relating thereto.

 

  (d) Exception for Lender Pledges: Any Lender may, without the consent of the Borrower, the Agent, the Fronting Banks or the Swing Line Lenders, at any time pledge or assign a security interest in all or any portion of its rights under the Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank, or other central bank having jurisdiction over such Lender and this Section 15.9 shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

 

15.10 AML Legislation and “Know Your Client” Requirements

 

  (a) Each Lender and the Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA) or any other applicable anti-money laundering, anti-terrorist financing, government sanction and “know your client” Applicable Laws (collectively, including any guidelines or orders thereunder, “ AML Legislation ”), it may be required to obtain, verify and record information that identifies the Borrower and each Material Subsidiary or Restricted Subsidiary, which information includes the name and address of each such Person and such other information that will allow such Lender or the Agent, as applicable, to identify each such Person in accordance with AML Legislation (including, information regarding such Person’s directors, authorized signing officers, or other Persons in control of each such Person). The Borrower shall provide, to the extent commercially reasonable, such information and take such actions as are reasonably requested by the Agent or any Lender in order to assist the Agent and the Lenders in maintaining compliance with AML Legislation. The Borrower shall promptly provide all such information, including supporting documentation and other evidence, as may be reasonably requested by any Lender or the Agent (for itself and not on behalf of any Lender), or any prospective assignee of a Lender or the Agent, in order to comply with any applicable AML Legislation, whether now or hereafter in existence.

 

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  (b) If, upon the written request of any Lender, the Agent (for itself and not on behalf of any Lender) has ascertained the identity of the Borrower or any Material Subsidiary or Restricted Subsidiary or any authorized signatories of such Person for the purposes of applicable AML Legislation on such Lender’s behalf, then the Agent:

 

  (i) shall be deemed to have done so as an agent for such Lender, and this Agreement shall constitute a “written agreement” in such regard between such Lender and the Agent within the meaning of applicable AML Legislation; and

 

  (ii) shall provide to such Lender copies of all information obtained in such regard without any representation or warranty as to its accuracy or completeness.

 

  (c) Notwithstanding anything to the contrary in this Section 15.10, each of the Lenders agrees that the Agent has no obligation to ascertain the identity of the Borrower or any Material Subsidiary or Restricted Subsidiary or any authorized signatories of such Person, on behalf of any Lender, or to confirm the completeness or accuracy of any information it obtains from any such Person or any such authorized signatory in doing so.

 

15.11 Platform

 

  (a) The Borrower agrees that the Agent may, but shall not be obligated to, make the Communications (as defined below) available to the Lenders by posting the Communications on Debt Domain, Intralinks, Syndtrak or a substantially similar electronic transmission system (the “ Platform ”).

 

  (b) The Platform is provided “as is” and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications caused by posting such Communications on the Platform. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose or freedom from viruses or other code defects, is made by any Agent Party in connection with the Platform. In no event shall the Agent or any of its Affiliates (collectively, the “ Agent Parties ”) have any liability to the Borrower or any of its Subsidiaries, any Lender or any other Person for damages of any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Borrower’s, any of its Subsidiaries’ or the Agent’s transmission of Communications through the Platform. “ Communications ” means, collectively, any notice, demand, communication, information, document or other material that the Borrower or any Subsidiary thereof provides to the Agent specifically for posting on the Platform pursuant to any Loan Document or the transactions contemplated therein which is distributed to any Lender by means of the Platform.

 

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15.12 Waiver of Jury Trial

To the extent permitted by Applicable Law, each of the Borrower, the Agent and the Lenders hereby irrevocably waives all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to the Loan Documents or the actions of the Agent or any Lender in the negotiation, administration, performance or enforcement thereof.

 

15.13 Electronic Communications

 

  (a) Any demand, notice or communication to be made or given hereunder may be delivered or furnished by electronic communication (including email and internet or intranet websites) pursuant to procedures approved by the Agent, provided that the foregoing shall not apply to notices to any Lender if such Lender has notified the Agent that it is incapable of receiving notices by electronic communication. The Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular demands, notices or communications.

 

  (b) Unless the Agent otherwise prescribes, demands, notices and other communications sent to an email address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return email or other written acknowledgement), and demands, notices or communications posted to an internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its email address of notification that such notice or communication is available and identifying the website address therefor, provided that, if such demand, notice, email or other communication is not sent within normal business hours of the recipient, such demand, notice or other communication shall be deemed to have been sent at the opening of business on the next Business Day.

 

15.14 Counterparts

This Agreement may be executed in any number of counterparts, and all of such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by telecopier, PDF or other electronic means shall be effective as delivery of a manually executed counterpart of this Agreement.

IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the 16 th day of July, 2015.

(Remainder of page intentionally left blank.)

 

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Notice Address:

 

500 Centre Street S.E.

P.O. Box 2850

Calgary, Alberta

T2P 2S5

Attention: Executive Vice-President &

Chief Financial Officer

Facsimile: (403) 645-4853

with a copy to:

Treasury Department

Facsimile: (403) 645-4613

   

 

ENCANA CORPORATION

 

    By:  

/s/ Sherri A. Brillon

     

Name:

  Sherri A. Brillon
      Title:   Executive Vice-President & Chief Financial Officer
    By:  

 

/s/ Corey D. Code

      Name:   Corey D. Code
      Title:   Vice-President, Strategy & Treasurer

 

This page is attached to and forms part of a Restated Credit Agreement among Encana Corporation, as Borrower, each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders, and Royal Bank of Canada, as Agent, dated as of the 16 th day of July, 2015.


ROYAL BANK OF CANADA
as Agent
By:   /s/ Yvonne Brazier
  Name:   Yvonne Brazier
  Title:   Manager Agency

 

This page is attached to and forms part of a Restated Credit Agreement among Encana Corporation, as Borrower, each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders, and Royal Bank of Canada, as Agent, dated as of the 16 th day of July, 2015.


ROYAL BANK OF CANADA
By:   /s/ Sonia G. Tibbatts
  Name:   Sonia G. Tibbatts
  Title:   Authorized Signatory

 

This page is attached to and forms part of a Restated Credit Agreement among Encana Corporation, as Borrower, each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders, and Royal Bank of Canada, as Agent, dated as of the 16 th day of July, 2015.


CANADIAN IMPERIAL BANK OF COMMERCE
By:   /s/ Joelle Chatwin
  Name:   Joelle Chatwin
  Title:   Executive Director
By:   /s/ Randy Geislinger
  Name:   Randy Geislinger
  Title:   Executive Director

 

This page is attached to and forms part of a Restated Credit Agreement among Encana Corporation, as Borrower, each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders, and Royal Bank of Canada, as Agent, dated as of the 16 th day of July, 2015.


BANK OF MONTREAL
By:  

/s/ Ebba Jantz

  Name:   Ebba Jantz
  Title:   Director
By:  

/s/ Darren Thomas

  Name:   Darren Thomas
  Title:   Associate

 

This page is attached to and forms part of a Restated Credit Agreement among Encana Corporation, as Borrower, each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders, and Royal Bank of Canada, as Agent, dated as of the 16 th day of July, 2015.


THE BANK OF NOVA SCOTIA
By:  

/s/ Albert Kwan

  Name:   Albert Kwan
  Title:   Director
By:  

/s/ Michael Linder

  Name:   Michael Linder
  Title:   Director

 

This page is attached to and forms part of a Restated Credit Agreement among Encana Corporation, as Borrower, each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders, and Royal Bank of Canada, as Agent, dated as of the 16 th day of July, 2015.


THE TORONTO-DOMINION BANK
By:  

/s/ Greg Hickaway

  Name:   Greg Hickaway
  Title:   Managing Director
By:  

/s/ Carmen Angelescu

  Name:   Carmen Angelescu
  Title:   Director

 

This page is attached to and forms part of a Restated Credit Agreement among Encana Corporation, as Borrower, each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders, and Royal Bank of Canada, as Agent, dated as of the 16 th day of July, 2015.


NATIONAL BANK OF CANADA
By:  

/s/ Mark Williamson

  Name:   Mark Williamson
  Title:   Authorized Signatory
By:  

/s/ Angela Becker

  Name:   Angela Becker
  Title:   Authorized Signatory

 

This page is attached to and forms part of a Restated Credit Agreement among Encana Corporation, as Borrower, each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders, and Royal Bank of Canada, as Agent, dated as of the 16 th day of July, 2015.


BNP PARIBAS
By:  

/s/ Evan Ivanov

  Name:   Evan Ivanov
  Title:   Director
By:  

/s/ Zainuddin Ahmed

  Name:   Zainuddin Ahmed
  Title:   Vice President

 

This page is attached to and forms part of a Restated Credit Agreement among Encana Corporation, as Borrower, each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders, and Royal Bank of Canada, as Agent, dated as of the 16 th day of July, 2015.


CREDIT AGRICOLE CORPORATE & INVESTMENT BANK
By:  

/s/ Juliette Cohen

  Name:   Juliette Cohen
  Title:   Managing Director
By:  

/s/ Lucie Campos Caresmel

  Name:   Lucie Campos Caresmel
  Title:   Director

 

This page is attached to and forms part of a Restated Credit Agreement among Encana Corporation, as Borrower, each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders, and Royal Bank of Canada, as Agent, dated as of the 16 th day of July, 2015.


CREDIT SUISSE AG, TORONTO BRANCH
By:  

/s/ Chris Gage

  Name:   Chris Gage
  Title:   Authorized Signatory
By:  

/s/ Nicholas Lam

  Name:   Nicholas Lam
  Title:   Assistant Vice President

 

This page is attached to and forms part of a Restated Credit Agreement among Encana Corporation, as Borrower, each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders, and Royal Bank of Canada, as Agent, dated as of the 16 th day of July, 2015.


ALBERTA TREASURY BRANCHES
By:  

/s/ Matthew Littlejohn

  Name:   Matthew Littlejohn
  Title:   Director
By:  

/s/ Andrew Yang

  Name:   Andrew Yang
  Title:  

Associate Director, Energy

ATB Corporate Financial Services

 

This page is attached to and forms part of a Restated Credit Agreement among Encana Corporation, as Borrower, each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders, and Royal Bank of Canada, as Agent, dated as of the 16 th day of July, 2015.


CAISSE CENTRALE DESJARDINS
By:  

/s/ Oliver Sumugod

  Name:   Oliver Sumugod
  Title:   Director
By:  

/s/ Matt van Remmen

  Name:   Matt van Remmen
  Title:   Managing Director

 

This page is attached to and forms part of a Restated Credit Agreement among Encana Corporation, as Borrower, each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders, and Royal Bank of Canada, as Agent, dated as of the 16th day of July, 2015.


BANK OF AMERICA, N.A., CANADA BRANCH
By:  

/s/ James K.G. Campbell

  Name:   JAMES K.G. CAMPBELL
  Title:   DIRECTOR
By:    
  Name:  
  Title:  

 

This page is attached to and forms part of a Restated Credit Agreement among Encana Corporation, as Borrower, each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders, and Royal Bank of Canada, as Agent, dated as of the 16 th day of July, 2015.


BANK OF TOKYO-MITSUBISHI UFJ (CANADA)
By:  

/s/ Hisanobu Chigira

  Name:   Hisanobu Chigira
  Title:   Deputy General Manager and Managing Director
By:    
  Name:  
  Title:  

 

This page is attached to and forms part of a Restated Credit Agreement among Encana Corporation, as Borrower, each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders, and Royal Bank of Canada, as Agent, dated as of the 16 th day of July, 2015.


BARCLAYS BANK PLC
By:  

/s/ Vanessa Kurbatskiy

  Name: Vanessa Kurbatskiy
  Title: Vice President

 

This page is attached to and forms part of a Restated Credit Agreement among Encana Corporation, as Borrower, each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders, and Royal Bank of Canada, as Agent, dated as of the 16 th day of July, 2015.


CITIBANK, N.A., CANADIAN BRANCH
By:  

/s/ Jonathan Cain

  Name:   Jonathan Cain
  Title:   Authorized Signatory
By:    
  Name:  
  Title:  

 

This page is attached to and forms part of a Restated Credit Agreement among Encana Corporation, as Borrower, each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders, and Royal Bank of Canada, as Agent, dated as of the 16 th day of July, 2015.


JPMORGAN CHASE BANK, N.A.,

TORONTO BRANCH

By:  

/s/ Debra Hrelja

  Name:   DEBRA HRELJA
  Title:   VICE PRESIDENT
By:    
  Name:  
  Title:  

 

This page is attached to and forms part of a Restated Credit Agreement among Encana Corporation, as Borrower, each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders, and Royal Bank of Canada, as Agent, dated as of the 16 th day of July, 2015.


MIZUHO BANK, LTD.
By:  

/s/ Brad C. Crilly

  Name:   Brad C. Crilly
  Title:   Senior Vice-President

 

This page is attached to and forms part of a Restated Credit Agreement among Encana Corporation, as Borrower, each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders, and Royal Bank of Canada, as Agent, dated as of the 16 th day of July, 2015.


SUMITOMO MITSUI BANKING CORPORATION OF CANADA
By:  

/s/ Alfred Lee

  Name:   Alfred Lee
  Title:   Senior Vice President
By:    
  Name:  
  Title:  

 

This page is attached to and forms part of a Restated Credit Agreement among Encana Corporation, as Borrower, each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders, and Royal Bank of Canada, as Agent, dated as of the 16 th day of July, 2015.


WELLS FARGO BANK, N.A.

LONDON BRANCH

By:  

/s/ Richard Cavilli

  Name:   RICHARD CAVILLI
  Title:   DIRECTOR
By:    
  Name:  
  Title:  

 

This page is attached to and forms part of a Restated Credit Agreement among Encana Corporation, as Borrower, each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders, and Royal Bank of Canada, as Agent, dated as of the 16 th day of July, 2015.


MORGAN STANLEY BANK, N.A.
By:  

/s/ Michael King

  Name: Michael King
  Title: Authorized Signatory

 

This page is attached to and forms part of a Restated Credit Agreement among Encana Corporation, as Borrower, each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders, and Royal Bank of Canada, as Agent, dated as of the 16 th day of July, 2015.


ICICI BANK CANADA
By:  

/s/ Akshay Chaturvedi

  Name:   Akshay Chaturvedi
  Title:  

Senior Vice President

Corporate & Commercial Banking

ICICI Bank Canada

By:  

/s/ Sumit Chatterjee

  Name:   Sumit Chatterjee
  Title:  

AVP, Credit Risk

ICICI Bank Canada

 

This page is attached to and forms part of a Restated Credit Agreement among Encana Corporation, as Borrower, each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders, and Royal Bank of Canada, as Agent, dated as of the 16 th day of July, 2015.


BANK OF CHINA (CANADA)
By:  

/s/ Jie Chen

  Name:   Jie Chen
  Title:   VP, Corporate Banking
By:  

/s/ Jiao, Liang

  Name:   Jiao, Liang
  Title:   Senior Vice President

 

This page is attached to and forms part of a Restated Credit Agreement among Encana Corporation, as Borrower, each of the financial and other institutions named on Schedule “J” from time to time, in their capacities as Lenders, and Royal Bank of Canada, as Agent, dated as of the 16 th day of July, 2015.


Schedule “A” to the Restated Credit Agreement dated as of July 16, 2015 among ENCANA CORPORATION as Borrower, the financial and other institutions named therein from time to time as Lenders and ROYAL BANK OF CANADA as Agent

 

NOTICE OF DRAWDOWN, REPAYMENT OR

CANCELLATION OF COMMITMENT

Date:

 

Dear Sirs/Mesdames:

We refer to the Restated Credit Agreement dated as of July 16, 2015 among ENCANA CORPORATION as Borrower, the financial and other institutions named therein from time to time as Lenders and ROYAL BANK OF CANADA as Agent (the “ Credit Agreement ”). Terms and expressions defined in the Credit Agreement which are used and not otherwise defined herein shall have the same meanings ascribed to them in the Credit Agreement.

We hereby give notice of our request for a [Borrowing, repayment and/or cancellation of Commitment] pursuant to Section [3.3, 3.7. 3.10, 3.13 or 4.3] of the Credit Agreement as follows:

 

1.      Amount of [Borrowing, repayment and/or cancellation] [Cdn. or US] $            .  
2.      Date of [Borrowing, repayment and/or cancellation of Commitment]                      .  
3.      [If applicable] Payment instructions of [Borrowing, repayment]  
    

 

 
    

 

  .
4.      [If applicable] Nature of Borrowing is [a Swing Line Borrowing] by way of a [Prime Loan, USBR Loan, LIBOR Loan or Letter of Credit] .  
5.      [If applicable] The LIBOR Interest Period for the LIBOR Loan is              [days/months] commencing                     ,                     .  
6.      [If applicable][Payment/Amount of Commitment to be cancelled] is to be applied to the Commitments of [those Lenders which are not Non-Extending Lenders in the amount of US$ / those Lenders which are Non-Extending Lenders in the amount of US$ ] .  


Yours very truly,
ENCANA CORPORATION
By:  

 

By:  

 

 

cc. [If applicable] [Name of Swing Line Lender]

 

cc. [If applicable] [Name of Fronting Bank]

 

- 2 -


Schedule “B” to the Restated Credit Agreement dated as of July 16, 2015 among ENCANA CORPORATION as Borrower, the financial and other institutions named therein from time to time as Lenders and ROYAL BANK OF CANADA as Agent

 

NOTICE OF DRAWDOWN

BY WAY OF BANKERS’ ACCEPTANCES

Date:

 

Dear Sirs/Mesdames:

 

Re: Issuance of Bankers’ Acceptances for

[amount] on [date]

We refer to the Restated Credit Agreement dated as of July 16, 2015 among ENCANA CORPORATION as Borrower, the financial and other institutions named therein from time to time as Lenders and ROYAL BANK OF CANADA as Agent (the “ Credit Agreement ”). Terms and expressions defined in the Credit Agreement which are used and not otherwise defined herein shall have the same meanings ascribed to them in the Credit Agreement.

We hereby request that [the Lenders or Swing Line Lender] issue Bankers’ Acceptance(s) (or, as applicable, make BA Equivalent Loans) pursuant to Section [3.3, 3.8, 3.9 or 3.13] of the Credit Agreement on the date and in the aggregate face amount and with the specified maturity date set out below.

General Information:

 

Aggregate amount due at maturity in regard to Borrowing:    Cdn.$●   
Date of issuance:   

                     

  
Specified maturity date:   

 

  
Payment instructions:   

 

  

Upon maturity of these Bankers’ Acceptance(s) (or, as applicable, BA Equivalent Loans) on [specified maturity date] , you are authorized to make payment directly to [the Lenders or Swing Line Lender] of an amount equal to the face or principal amounts of such Bankers’ Acceptances (or, as applicable, BA Equivalent Loans) respectively accepted or made by [them or it] and charge the Borrower’s Accounts with the principal amount of the aggregate of such face or principal amounts.


Yours truly,
ENCANA CORPORATION
By:  

 

By:  

 

 

cc. [If applicable] [Name of Swing Line Lender]

 

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Schedule “C” to the Restated Credit Agreement dated as of July 16, 2015 among ENCANA CORPORATION as Borrower, the financial and other institutions named therein from time to time as Lenders and ROYAL BANK OF CANADA as Agent

 

NOTICE OF CONVERSION

Date:

 

Dear Sirs/Mesdames:

 

Re: Notice of Conversion Pursuant to

Section 3.8 of the Credit Agreement

We refer to the Restated Credit Agreement dated as of July 16, 2015 among ENCANA CORPORATION as Borrower, the financial and other institutions named therein from time to time as Lenders and ROYAL BANK OF CANADA as Agent (the “ Credit Agreement ”), and in particular to Section 3.8 of the Credit Agreement. Terms and expressions defined in the Credit Agreement which are used and not otherwise defined herein shall have the same meanings ascribed to them in the Credit Agreement.

We have outstanding [Cdn. or US] $         of Borrowings by way of [Prime Loans, USBR Loans, Bankers’ Acceptances (or, as applicable, BA Equivalent Loans) or LIBOR Loans] [if applicable] [having a maturity date of / LIBOR Interest Period ending on the      day of              ,         . ] Please convert [Cdn. or US] $         outstanding by way of                      [Prime Loans, USBR Loans, Bankers’ Acceptances (or, as applicable, BA Equivalent Loans) or LIBOR Loans] into a Borrowing by way of [Prime Loans, USBR Loans, Bankers’ Acceptances (or, as applicable, BA Equivalent Loans) or LIBOR Loans] on the      day of             ,        .

[If applicable] General Information:

 

Aggregate amount due at maturity in regard to Borrowing:    [Cdn. or US]  $●   
Date of issuance:   

                         

  
Specified maturity date:                                
Payment instructions:                                

[If applicable] Upon maturity of these Bankers’ Acceptance(s) (or, as applicable, BA Equivalent Loans) on [specified maturity date] , you are authorized to make payment directly to the Lenders of an amount equal to the face or principal amounts of such Bankers’ Acceptances (or, as applicable, BA Equivalent Loans) respectively accepted or made by them and charge the Borrower’s Accounts with the principal amount of the aggregate of such face or principal amounts.


[If applicable] The LIBOR Interest Period for the Borrowing by way of LIBOR Loans to which such Conversion is being effected is          [days/months] .

Pursuant to Section 2.3 of the Credit Agreement, this Notice of Conversion given by the Borrower to the Agent shall be deemed to be a representation and warranty by the Borrower to each of the Lenders and the Agent that the representation and warranty contained in Section 2.1(k) of the Credit Agreement is, as of the date of this notice, and will be, as of the applicable Borrowing Conversion Date, true and correct in all material respects as of such date, except as stated otherwise herein.

[Set forth exceptions, if applicable.]

 

Yours truly,
ENCANA CORPORATION
By:  

 

By:  

 

 

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Schedule “D” to the Restated Credit Agreement dated as of July 16, 2015 among ENCANA CORPORATION as Borrower, the financial and other institutions named therein from time to time as Lenders and ROYAL BANK OF CANADA as Agent

 

NOTICE OF ROLLOVER

Date:

 

Dear Sirs/Mesdames:

 

Re: Notice of Rollover Pursuant to

Section 3.9 of the Credit Agreement

We refer to the Restated Credit Agreement dated as of July 16, 2015 among ENCANA CORPORATION as Borrower, the financial and other institutions named therein from time to time as Lenders and ROYAL BANK OF CANADA as Agent (the “ Credit Agreement ”), and in particular to Section 3.9 of the Credit Agreement. Terms and expressions defined in the Credit Agreement which are used and not otherwise defined herein shall have the same meanings ascribed to them in the Credit Agreement.

We have outstanding [Cdn. or US] $         of Borrowings by way of [Bankers’ Acceptances (or, as applicable, BA Equivalent Loans) or LIBOR Loans or Letter of Credit described in Schedule “A” hereto] [as applicable] [having a maturity date of / LIBOR Interest Period / expiration date ending on the      day of             ,         . ] Please Rollover [Cdn. or US] $         outstanding by way of                      [Bankers’ Acceptances (or, as applicable, BA Equivalent Loans) or LIBOR Loans or such Letter of Credit] into a further Borrowing by way of                      [Bankers’ Acceptances (or, as applicable, BA Equivalent Loans) or LIBOR Loans or an extended or replacement Letter of Credit in accordance with Schedule “A” hereto] on the      day of         ,         .

[If applicable] General Information:

 

Aggregate amount due at maturity in regard to Borrowing:   

[Cdn. or US]  $

 
Date of issuance:   

 

 
Specified maturity date:   

 

 
Payment instructions:   

 

 


[If applicable] Upon maturity of these Bankers’ Acceptance(s) (or, as applicable, BA Equivalent Loans) on [specified maturity date] , you are authorized to make payment directly to the Lenders of an amount equal to the face or principal amounts of such Bankers’ Acceptances (or, as applicable, BA Equivalent Loans) respectively accepted or made by them and charge the Borrower’s Accounts with the principal amount of the aggregate of such face or principal amounts.

[If applicable] The LIBOR Interest Period for the Borrowing by way of LIBOR Loans to which such Rollover is being effected is          [days/months] .

Pursuant to Section 2.3 of the Credit Agreement, this Notice of Rollover given by the Borrower to the Agent shall be deemed to be a representation and warranty by the Borrower to each of the Lenders and the Agent that the representation and warranty contained in Section 2.1(k) of the Credit Agreement is, as of the date of this notice, and will be, as of the applicable Borrowing Rollover Date, true and correct in all material respects as of such date, except as stated otherwise herein.

[ Set forth exceptions, if applicable.]

 

Yours truly,
ENCANA CORPORATION
By:  

 

By:  

 

 

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Schedule “E” to the Restated Credit Agreement dated as of July 16, 2015 among ENCANA CORPORATION as Borrower, the financial and other institutions named therein from time to time as Lenders and ROYAL BANK OF CANADA as Agent

 

REQUEST FOR EXTENSION

Date:

Dear Sirs/Mesdames:

 

Re: Request for Extension Pursuant to Sections 3.12 (Commitment) or 3.13(k) (Swing Line Commitment) and 3.7(f) (Fronting Bank Commitment) of the Credit Agreement

We refer to the Restated Credit Agreement dated as of July 16, 2015 among ENCANA CORPORATION as Borrower, the financial and other institutions named therein from time to time as Lenders and ROYAL BANK OF CANADA as Agent (the “ Credit Agreement ”), and in particular to Sections 3.12, 3.13(k) and 3.7(f) of the Credit Agreement. Terms and expressions defined in the Credit Agreement which are used and not otherwise defined herein shall have the same meanings ascribed to them in the Credit Agreement.

We hereby request that:

 

1. the Maturity Date with respect to the Commitments of all Lenders which have not become Non-Extending Lenders be extended to                     ;

 

2. the Swing Line Lenders extend their respective Swing Line Commitments to                      ; and

 

3. [If applicable] the Fronting Banks extend their respective Fronting Bank Commitments to                      .

We hereby confirm that no Default or Event of Default has occurred and is continuing [other than as described below] .

We also confirm that, as of the end of the immediately preceding Fiscal [Quarter] [Year] ending                     :

 

  (a) all of the Material Subsidiaries and Restricted Subsidiaries are listed in the attached schedule;

 

  (b) the Borrower and the Material Subsidiaries (all of which are listed in the attached schedule) directly own approximately     % of the consolidated assets of the Borrower (as reported on the balance sheet of the Borrower as at the end of such Fiscal [Year] [Quarter] ); and


  (c) the Borrower and the Restricted Subsidiaries (all of which are listed in the attached schedule) directly own approximately     % of the Consolidated Net Tangible Assets as defined in the Negative Pledge (without adding back the non-cash ceiling test impairments and other changes as at December 31, 2011 as a consequence of the adoption of US GAAP).

 

Yours truly,
ENCANA CORPORATION
By:  

 

By:  

 

 

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Schedule “F” to the Restated Credit Agreement dated as of July 16, 2015 among ENCANA CORPORATION as Borrower, the financial and other institutions named therein from time to time as Lenders and ROYAL BANK OF CANADA as Agent

 

COMPLIANCE CERTIFICATE

I,                                         , of the City of Calgary, in the Province of Alberta, for and on behalf of Encana Corporation, and without incurring any personal liability, hereby certify as follows:

 

1. That I am the                      of Encana Corporation (the “ Borrower ”);

 

2. That this Certificate applies to the Fiscal [Quarter] [Year] ending                     ;

 

3. That I am familiar with and have examined the provisions of the Restated Credit Agreement dated as of July 16, 2015 (as amended from time to time, the “ Credit Agreement ”) between the Borrower, the financial and other institutions named therein from time to time as Lenders and Royal as Agent, and have made such reasonable inquiries as I have deemed necessary for purposes of this Certificate;

 

4. That based on the foregoing and to the best of my knowledge, information and belief:

 

  (a) the Borrower is not, as of the date of this Certificate, in breach of any material provision of the Credit Agreement [other than – describe] ; and

 

  (b) on the date of this Certificate, there is no Event of Default outstanding under the Credit Agreement [other than – describe] ;

 

5. That the Borrower’s consolidated financial statements for the Fiscal [Year] [Quarter] ending             , accompanying this Certificate present fairly the financial position of the Borrower as of that date and have been prepared in accordance with GAAP;

 

6. For the purposes of this Certificate, the following terms have been determined in accordance with the definitions of such terms set out in the Credit Agreement on a consolidated basis (except to the extent specified below) in accordance with GAAP as at the last day of the Fiscal [Year] [Quarter] to which this Certificate applies:

 

A. Consolidated Debt
  All Financing Debt of the Borrower      US$  

 

  Less : all Financing Debt of the Borrower referred to in the proviso to the definition of Consolidated Debt to Consolidated Capitalization Ratio      US$  

 


  Consolidated Debt        US$  
          

 

B.   Consolidated Net Worth         
  Consolidated shareholders’ equity of the Borrower as shown on the consolidated balance sheet of the Borrower (including preferred securities and minority interests to the extent included thereon)        US$  

 

  Less : to the extent not already excluded from the preceding amount, all amounts included in shareholders’ equity attributable to Non-Recourse Assets        US$  

 

  Plus : the non-cash ceiling test impairments and other changes as at December 31, 2011 as a consequence of the adoption of US GAAP        US$7,746,000,000
  Consolidated Net Worth        US$  
          

 

C.   Consolidated Tangible Assets         
  Total assets of the Borrower shown on the consolidated balance sheet of the Borrower        US$  

 

  Less : to the extent not already excluded from the preceding amounts, goodwill, trademarks, copyrights and other similar intangible assets        US$  

 

  Less : to the extent not already excluded from the preceding amounts, Non-Recourse Assets        US$  

 

  Less : deposits referred to in either (i) or (ii) of the proviso to the definition of Consolidated Debt to Consolidated Capitalization Ratio        US$  

 

  Plus : the non-cash ceiling test impairments and other changes as at December 31, 2011 as a consequence of the adoption of US GAAP        US$10,585,000,000
  Consolidated Tangible Assets        US$  
          

 

 

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7. That as of the end of the Fiscal [Year] [Quarter] to which this Certificate applies, and as detailed on the attached schedule, the Consolidated Debt to Consolidated Capitalization Ratio as at the last day of such Fiscal [Year] [Quarter] , which is not to exceed 60%, was     % ;

 

8. That as of the end of the Fiscal [Year] [Quarter] to which this Compliance Certificate applies:

 

  (a) US$            , being the aggregate amount of Financing Debt of all Material Subsidiaries which are Non-Guarantor Subsidiaries, on a consolidated basis, plus, without duplication,

 

  (b) US$            , being the aggregate Indebtedness (as defined in the Negative Pledge) secured by security interests over Restricted Property (as defined in the Negative Pledge) given by the Borrower or any Material Subsidiary in favour of Non-Guarantor Subsidiaries which are not Material Subsidiaries, plus, without duplication,

 

  (c) US$            , being the aggregate Financing Debt of Finance Co., plus, without duplication,

 

  (d) US$            , being the amount by which the aggregate Financing Debt of any Subsidiary (other than Finance Co. or a Material Subsidiary) exceeds an aggregate of US$750,000,000 and which Financing Debt is guaranteed by the Borrower or any Material Subsidiary (whether directly or indirectly through corporate law applicable to unlimited liability companies),

(which is not to exceed 17.5% of Consolidated Tangible Assets) is equal to     % of the Consolidated Tangible Assets after taking into account the exclusions permitted by Section 8.2(e). Reasonable particulars of the calculation of the items referred to in paragraphs 8(a), (b), (c) and (d) above, and the exclusions therefrom permitted by Section 8.2(e), are described in the attached schedule;

 

9. That as of the end of the Fiscal [Year] [Quarter] to which this Certificate applies:

 

  (a) the Borrower and the Material Subsidiaries (all of which are listed in the attached schedule) directly own approximately     % of the consolidated assets of the Borrower (as reported on the balance sheet of the Borrower as at the end of such Fiscal [Year] [Quarter] ); and

 

  (b) the Borrower and the Restricted Subsidiaries (all of which are listed in the attached schedule) directly own approximately     % of the Consolidated Net Tangible Assets as defined in the Negative Pledge (without adding back the non-cash ceiling test impairments and other changes as at December 31, 2011 as a consequence of the adoption of US GAAP); and

 

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10. That all capitalized terms used in this Certificate have the same meaning as in the Credit Agreement.

EXECUTED at the City of Calgary, in the Province of Alberta, this      day of             ,             .

 

ENCANA CORPORATION
By:  

 

Title:  

 

 

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Schedule “G” to the Restated Credit Agreement dated as of July 16, 2015 among ENCANA CORPORATION as Borrower, the financial and other institutions named therein from time to time as Lenders and ROYAL BANK OF CANADA as Agent

 

NEGATIVE PLEDGE

ARTICLE 1

INTERPRETATION

 

1.1 Definitions

For the purposes of this Negative Pledge, all capitalized terms used in this Negative Pledge which are not otherwise defined herein shall have the same meanings as given to them in that Restated Credit Agreement dated as of July 16, 2015 among Encana Corporation, as Borrower, the financial and other institutions named therein from time to time as Lenders and Royal Bank of Canada, as Agent, as amended, modified or restated from time to time. In addition, in this Negative Pledge, unless there is something in the subject matter or context inconsistent therewith, the following expressions have the following meanings, namely:

Consolidated Assets ” means the aggregate amount of assets of the Borrower as set forth in the Borrower’s most recent consolidated financial statements prepared in accordance with GAAP, and filed with a securities commission or similar regulatory authority;

Consolidated Net Tangible Assets ” means the total amount of assets of any Person on a consolidated basis (less applicable reserves and other properly deductible items) after deducting therefrom:

 

  (a) all current liabilities (excluding any Indebtedness classified as a current liability and any current liabilities which are by their terms extendible or renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed);

 

  (b) all goodwill, trade names, trademarks, patents and other like intangibles; and

 

  (c) appropriate adjustments on account of minority interests of other Persons holding shares of the Subsidiaries of such Person,

and adding back the non-cash ceiling test impairments and other changes in aggregate of US$11,251,000,000 as at December 31, 2011 as a consequence of the adoption of US GAAP, in each case, as shown on the most recent annual audited or quarterly unaudited consolidated balance sheet of such Person computed in accordance with GAAP;

Director ” means a director of the Borrower for the time being and “ Directors ” or “ Board of Directors ” means the board of directors of the Borrower or, if duly constituted and whenever duly empowered, the executive committee of the board of directors of the


Borrower for the time being, and reference to action by the Directors means action by the Directors of the Borrower as a board or action by the said executive committee as such committee;

Facilities ” means any drilling equipment, production equipment and platforms or mining equipment; pipelines, pumping stations and other pipeline facilities; terminals, warehouses and storage facilities; bulk plants; production, separation, dehydration, extraction, treating and processing facilities; gasification or natural gas liquefying facilities, flares, stacks and burning towers; floatation mills, crushers and ore handling facilities; tank cars, tankers, barges, ships, trucks, automobiles, airplanes and other marine, automotive, aeronautical and other similar moveable facilities or equipment; computer systems and associated programs or office equipment; roads, airports, docks (including drydocks); reservoirs and waste disposal facilities; sewers; generating plants (including power plants) and electric lines; telephone and telegraph lines, radio and other communications facilities; townsites, housing facilities, recreation halls, stores and other related facilities; and similar facilities and equipment of or associated with any of the foregoing;

Financial Instrument Obligations ” means obligations arising under:

 

  (a) interest rate swap agreements, forward rate agreements, floor, cap or collar agreements, futures or options, insurance or other similar agreements or arrangements, or any combination thereof, entered into by a Person relating to interest rates or pursuant to which the price, value or amount payable thereunder is dependent or based upon interest rates in effect from time to time or fluctuations in interest rates occurring from time to time;

 

  (b) currency swap agreements, cross-currency agreements, forward agreements, floor, cap or collar agreements, futures or options, insurance or other similar agreements or arrangements, or any combination thereof, entered into by a Person relating to currency exchange rates or pursuant to which the price, value or amount payable thereunder is dependent or based upon currency exchange rates in effect from time to time or fluctuations in currency exchange rates occurring from time to time; and

 

  (c) commodity swap or hedging agreements, floor, cap or collar agreements, commodity futures or options or other similar agreements or arrangements, or any combination thereof, entered into by a Person relating to one or more commodities or pursuant to which the price, value or amount payable thereunder is dependent or based upon the price of one or more commodities in effect from time to time or fluctuations in the price of one or more commodities occurring from time to time;

GAAP” means generally accepted accounting principles in Canada which are in effect from time to time, unless the Person’s most recent audited or unaudited interim financial statements are not prepared in accordance with generally accepted accounting principles in Canada, in which case GAAP shall mean generally accepted accounting principles in the United States in effect from time to time;

 

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Indebtedness ” means indebtedness created, issued or assumed for borrowed funds, or for the unpaid purchase price of property of the Borrower or a Restricted Subsidiary, and includes such indebtedness guaranteed by the Borrower or a Restricted Subsidiary;

Person ” means an individual, corporation, company, partnership (whether general or limited), joint venture, association, trust, unincorporated organization or government or any agency or political subdivision thereof;

Publicly Traded Securities ” means securities of a corporation which are listed on any stock exchange and are entitled to share without limitation in a distribution of the assets of the corporation upon any liquidation, dissolution or winding-up of the corporation and includes any securities convertible or exchangeable into such securities;

Purchase Money Mortgage ” means any mortgage, hypothecation, charge or other encumbrance on property or assets created, issued or assumed to secure a Purchase Money Obligation in respect of such property or assets and also means any agreement or other instrument entered into for the acquisition of or right to acquire any property or assets or any interest therein in which agreement or instrument there is reserved or which obligates the Borrower or a Restricted Subsidiary to pay a royalty, rent or percentage of profits or proceeds won from such property or assets and which charges or secures such property or assets or interest therein or the lands containing the same with the payment thereof and includes any extension, renewal, refunding or refinancing thereof so long as the principal amount outstanding immediately prior to the date of such extension, renewal, refunding or refinancing is not increased; provided , however , that such mortgage, hypothecation, charge, encumbrance, agreement or other instrument is created, issued or assumed prior to, concurrently with or within 180 days following the acquisition of such property or assets, except in the case of property or assets on which improvements are constructed, installed or added, in which case the same shall be created or issued within a period of 180 days after Substantial Completion of such improvements;

Purchase Money Obligation ” means any Indebtedness assumed as, or issued and incurred to provide funds to pay, all or part of (i) the purchase price (which shall be deemed to include any costs of construction or installation) of any property or assets acquired after the date of the Credit Agreement or (ii) the cost of improvements made after the date of the Credit Agreement to any property or assets;

Restricted Property ” means any oil, gas or mineral property of a primary nature located in Canada or the United States and any facilities located in Canada or the United States directly related to the mining, processing or manufacture of hydrocarbons or minerals, or any of the constituents thereof or the derivatives therefrom and includes Voting Shares or other interests of a corporation or other Person which owns such property or facilities, but does not include (i) any property or facilities used in connection with or necessarily incidental to the purchase, sale, storage, transportation or distribution of Restricted Property, (ii) any property which, in the opinion of the Board of Directors, is not materially important to the total business conducted by the Borrower and its Subsidiaries as an entirety, or (iii) any portion of a

 

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particular property which, in the opinion of the Board of Directors, is not materially important to the use or operation of such property;

Restricted Subsidiary ” means, on any date, any Subsidiary which owns at the time Restricted Property; provided , however , such term shall not include a Subsidiary of the Borrower if the amount of the Borrower’s share of Shareholders’ Equity of such Subsidiary constitutes, at the time of determination, less than 2% of the Consolidated Net Tangible Assets of the Borrower;

Shareholders’ Equity ” means the aggregate amount of shareholders’ equity (including but not limited to share capital, contributed surplus and retained earnings) of a Person as shown on the most recent annual audited or unaudited interim consolidated balance sheet of such Person and computed in accordance with GAAP;

Subsidiary ” means, on any date, any corporation or other Person of which Voting Shares or other interests carrying more than 50% of the voting rights attached to all outstanding Voting Shares or other interests are owned, directly or indirectly, by or for the Borrower and/or by or for any corporation in like relation to the Borrower and includes any corporation in like relation to a Subsidiary; provided , however , such term shall not include any corporations or other Persons (or their respective Subsidiaries) which have Publicly Traded Securities where the aggregate amount of assets of all such corporations or other Persons does not exceed 20% of the Consolidated Assets of the Borrower at the time and from time to time;

Substantial Completion ” means, with respect to an improvement, the point at which the improvement is ready for use or is being used for the purpose for which it was intended;

Value ” means:

 

(a) 150% of the face value of Canadian dollar funds or debt instruments of the Government of Canada or any of its provinces maturing within 12 months; and

 

(b) in respect of any other assets of the Borrower, the fair market value of such assets as determined by the Board of Directors of the Borrower;

Voting Shares ” means shares of any class of any corporation carrying voting rights under all circumstances, provided that, for the purposes of this definition, shares which only carry the right to vote conditionally on the happening of an event shall not be considered Voting Shares, nor shall any shares be deemed to cease to be Voting Shares solely by reason of a right to vote accruing to shares of another class or classes by reason of the happening of such an event, or solely because the right to vote may not be exercisable under the charter of the corporation.

 

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ARTICLE 2

NEGATIVE PLEDGE

 

2.1 Negative Pledge

As long as any portion of the Commitments remains outstanding or amounts are outstanding to any Lenders by the Borrower under the Credit Agreement, and subject to all the provisions of this Negative Pledge, the Borrower will not, nor will it permit any Restricted Subsidiary to, create any mortgage, hypothecation, charge or other encumbrance on any of its or their property or assets, present or future, to secure Indebtedness, unless at or prior thereto the maximum amount of the Total Syndicated Commitment then in effect is equally and rateably secured with such Indebtedness or, at the option of the Borrower, security in the form of other property having a Value equal to 150% of the principal amount of the Total Syndicated Commitment then in effect is extended to the Agent and the Lenders.

The provisions of this Section 2.1 shall not apply to or operate to prevent:

 

  (a) liens or other encumbrances, not related to the borrowing of money, incurred or arising by operation of law or in the ordinary course of business or incidental to the ownership of property or assets;

 

  (b) pre-existing encumbrances on property or assets when acquired (including by way of lease);

 

  (c) encumbrances or obligations to incur encumbrances (including under indentures, trust deeds and similar instruments) on property or assets of another Person existing at the time such other Person becomes a Subsidiary, or is liquidated or merged into, or amalgamated or consolidated with, the Borrower or a Subsidiary or at the time of the sale, lease or other disposition to the Borrower or a Subsidiary of all or substantially all of the properties and assets of such other Person, provided that such encumbrances were not incurred in anticipation of such other Person becoming a Subsidiary;

 

  (d) encumbrances given by the Borrower or any of its Restricted Subsidiaries in compliance with contractual commitments in existence at the date hereof or entered into prior to a Restricted Subsidiary becoming a Restricted Subsidiary;

 

  (e) giving security by the Borrower or a Subsidiary in favour of the Borrower or any of its Subsidiaries;

 

  (f) creating, issuing or suffering to exist or becoming liable on, or giving or assuming, any Purchase Money Mortgage;

 

  (g) creating, issuing or suffering to exist or becoming liable on, or giving or assuming any mortgage, hypothecation, charge or other encumbrance in connection with Indebtedness which, by its terms, is non-recourse to the Borrower or the Restricted Subsidiary;

 

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  (h) giving security on any specific property or asset in favour of a government within or outside Canada or any political subdivision, department, agency or instrumentality thereof to secure the performance of any covenant or obligation to or in favour of or entered into at the request of any such authorities where such security is required pursuant to any contract, statute, order or regulation;

 

  (i) giving, in the ordinary course of business and for the purpose of carrying on the same, security on current assets to any bank or banks or others to secure any obligations repayable on demand or maturing, including any right of extension or renewal, within 12 months after the date such obligation is incurred;

 

  (j) giving security on property or assets of whatsoever nature other than Restricted Property; provided , however , security on Restricted Property may be given to secure obligations incurred or guarantees of obligations incurred in connection with or necessarily incidental to the purchase, sale, storage, transportation or distribution of such Restricted Property or of the products derived from such Restricted Property;

 

  (k) encumbrances arising under partnership agreements, oil and natural gas leases, overriding royalty agreements, net profits agreements, production payment agreements, royalty trust agreements, master limited partnership agreements, farm-out agreements, division orders, contracts for the sale, purchase, exchange, storage, transportation, distribution, gathering or processing of Restricted Property, unitizations and pooling designations, declarations, orders and agreements, development agreements, operating agreements, production sales contracts (including security in respect of take or pay or similar obligations thereunder), area of mutual interest agreements, natural gas balancing or deferred production agreements, injection, repressuring and recycling agreements, salt water or other disposal agreements, seismic or geophysical permits or agreements, which in each of the foregoing cases is customary in the oil and natural gas business, and other agreements which are customary in the oil and natural gas business, provided in all instances that such encumbrance is limited to the property or assets that are the subject of the relevant agreement;

 

  (l) any encumbrance on any properties or facilities or any interest therein, construction thereon or improvement thereto incurred to secure all or any part of any Indebtedness relating to the reclamation and clean-up of such properties, facilities and interests and surrounding lands whether or not owned by the Borrower or a Restricted Subsidiary, the plugging or abandonment of wells and the decommissioning or removal of structures or facilities located on such properties or facilities provided such Indebtedness is incurred prior to, during or within two years after the completion of reclamation and clean-up or such other activity;

 

  (m)

encumbrances in respect of the joint development, operation or present or future reclamation, clean-up or abandonment of properties, facilities and surrounding lands or related production or processing as security in favour of any other owner or operator of such assets for the Borrower’s or any Restricted Subsidiary’s portion of

 

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  the costs and expenses of such development, operation, reclamation, clean-up or abandonment;

 

  (n) encumbrances on assets or property (including oil sands property) securing: (i) all or any portion of the cost of acquisition (directly or indirectly), surveying, exploration, drilling, development, extraction, operation, production, construction, alteration, repair or improvement of all or any part of such assets or property and the plugging and abandonment of wells thereon, (ii) all or any portion of the cost of acquiring (directly or indirectly), developing, constructing, altering, improving, operating or repairing any assets or property (or improvements on such assets or property) used or to be used in connection with such assets or property, whether or not located (or located from time to time) at or on such assets or property, (iii) Indebtedness incurred by the Borrower or any of its Subsidiaries to provide funds for the activities set forth in clauses (i) and (ii) above, provided such Indebtedness is incurred prior to, during or within two years after the completion of acquisition, construction or such other activities referred to in clauses (i) and (ii) above, and (iv) Indebtedness incurred by the Borrower or any of its Subsidiaries to refinance Indebtedness incurred for the purposes set forth in clauses (i) and (ii) above. Without limiting the generality of the foregoing, costs incurred after the date hereof with respect to clauses (i) or (ii) above shall include costs incurred for all facilities relating to such assets or property, or to projects, ventures or other arrangements of which such assets or property form a part or which relate to such assets or property, which facilities shall include, without limitation, Facilities, whether or not in whole or in part located (or from time to time located) at or on such assets or property;

 

  (o) encumbrances granted in the ordinary course of business in connection with Financial Instrument Obligations;

 

  (p) deposits referred to in part (i) of the proviso to the definition of Consolidated Debt to Consolidated Capitalization Ratio; and

 

  (q) any extension, renewal, alteration, refinancing, replacement, exchange or refunding (or successive extensions, renewals, alterations, refinancings, replacements, exchanges or refundings) of all or part of any encumbrance referred to in the foregoing clauses; provided , however , that (i) such new encumbrance shall be limited to all or part of the property or assets which was secured by the prior encumbrance plus improvements on such property or assets and (ii) the Indebtedness, if any, secured by the new encumbrance is not increased from the amount of the Indebtedness secured by the prior encumbrance then existing at the time of such extension, renewal, alteration, refinancing, replacement, exchange or refunding, plus an amount necessary to pay fees and expenses, including premiums, related to such extensions, renewals, alterations, refinancings, replacements, exchanges or refundings;

provided that (i) in any event, the Borrower and any Restricted Subsidiary shall be entitled to give security that would otherwise be prohibited hereby so long as the aggregate Indebtedness outstanding

 

- 7 -


and secured under this (i) and the aggregate Indebtedness outstanding and secured under Subsection 2.1(n) above does not at the time of giving such security exceed an amount equal to 10% of the Consolidated Net Tangible Assets of the Borrower at such time and (ii) in no event shall the Borrower or any Restricted Subsidiary be entitled to give security that would otherwise be permitted by Subsection 2.1(n) if such security secures Indebtedness which exceeds an amount equal to 10% of the Consolidated Net Tangible Assets of the Borrower at such time.

Transactions such as the sale (including any forward sale) or other transfer of (i) oil, gas, minerals or other resources of a primary nature, whether in place or when produced, for a period of time until, or in an amount such that, the purchaser will realize therefrom a specified amount of money or a specified rate of return (however determined), or a specified amount of such oil, gas, minerals, or other resources of a primary nature, or (ii) any other interest in property of the character commonly referred to as a “production payment”, will not constitute secured indebtedness and will not result in the Borrower being required to secure the Borrowings.

In the event security has been provided to the Agent and the Lenders in accordance with Section 2.1 hereof and the maximum principal amount of the Credit Facility is thereafter permanently reduced at any time or from time to time, the Borrower may request once in each calendar year, and the Agent and the Lenders shall grant at the Borrower’s expense, discharges of security as will ensure that the remaining security secures, to the satisfaction of the Agent on behalf of the Lenders acting reasonably, the maximum principal amount of the Credit Facility, as permanently reduced from time to time.

 

- 8 -


Schedule “H” to the Restated Credit Agreement dated as of July 16, 2015 among ENCANA CORPORATION as Borrower, the financial and other institutions named therein from time to time as Lenders and ROYAL BANK OF CANADA as Agent

 

POWER OF ATTORNEY - BANKERS’ ACCEPTANCES

 

1. This Power of Attorney is provided pursuant to the Restated Credit Agreement dated as of July 16, 2015 among Encana Corporation (the “ Borrower ”), the financial and other institutions named therein from time to time as Lenders and Royal Bank of Canada as Agent (as amended, modified, supplemented or restated from time to time, the “ Credit Agreement ”). Terms and expressions defined in the Credit Agreement which are used in this Power of Attorney and not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement.

 

2. The Borrower hereby appoints each Lender which is not a Non-Acceptance Lender (individually, the “ Lender ”), acting by any authorized signatory of the Lender, the attorney of the Borrower:

 

  (a) to sign, for and on behalf and in the name of the Borrower as drawer, and to endorse on its behalf, Bankers’ Acceptances drawn on the Lender and, if applicable, payable to the order of a “clearing house” as defined in the Depository Bills and Notes Act (Canada); and

 

  (b) to fill in the amount payable at maturity, date and maturity date of such Bankers’ Acceptances;

provided that such acts in each case are to be undertaken by the Lender strictly in accordance with instructions given to the Lender by the Agent as hereinafter provided in paragraph 3 of this Power of Attorney. The Borrower understands signatures of any authorized signatory of the Lender may be mechanically reproduced in facsimile on Bankers’ Acceptances in accordance herewith and such facsimile signatures shall be binding and effective as if they had been manually executed by such authorized signatory of the Lender.

 

3.

Instructions from the Borrower to the Lender relating to the amounts payable at maturity, date and maturity dates of Bankers’ Acceptances to be purchased by the Lender shall be communicated by the Borrower in writing to the Lender by delivery to the Agent on behalf of the Lender of a Notice of Drawdown by way of Bankers’ Acceptance in the form of Schedule “B” to the Credit Agreement, a Notice of Conversion where a Borrowing is to be converted into a Borrowing by way of Bankers’ Acceptances or a Notice of Rollover in respect of a Borrowing by way of Bankers’ Acceptances (each being a “ Notice ”) in accordance with provisions of the Credit Agreement. The communications in writing by the Borrower to the Agent on behalf of the Lender of the instructions set out in the Notice shall constitute (a) the authorization and instruction of the Borrower to the Lender to sign for and on behalf and in the name of the Borrower as drawer the requested Bankers’ Acceptances and


  to complete and/or endorse Bankers’ Acceptances in accordance with such information as set out therein, and (b) the request of the Borrower to the Lender to accept such Bankers’ Acceptances and purchase the same in accordance with the Credit Agreement. The Borrower acknowledges that the Lender shall not be obligated to accept or purchase any such Bankers’ Acceptances except in accordance with the provisions of the Credit Agreement.

 

4. The Lender shall be and it is hereby authorized to act on behalf of the Borrower upon and in compliance with instructions from the Agent communicated to the Lender as provided herein if the Lender reasonably believes such instructions to be genuine. The Lender’s actions in compliance with such instructions from the Agent shall be conclusively deemed to have been in accordance with the instructions of the Borrower.

 

5. The Borrower hereby agrees to indemnify the Lender and its directors, officers, employees, Affiliates and agents and to hold it and them harmless from and against any loss, liability, expense or claim of any kind or nature whatsoever incurred by any of them as a result of any action or inaction in any way relating to or arising out of this Power of Attorney or the acts contemplated hereby; provided that this indemnity shall not apply to any such loss, liability, expense or claim which results from the gross negligence or wilful misconduct of the Lender or any of its directors, officers, employees, Affiliates and agents.

 

6. No revocation of this Power of Attorney shall reduce, limit or otherwise affect the obligations of the Borrower in respect of any Bankers’ Acceptances executed, completed, endorsed, discounted and/or delivered in accordance herewith prior to the time at which such revocation becomes effective.

 

7. The Power of Attorney is in addition to and not in substitution of any agreement to which the Lender and the Borrower are parties, including the Credit Agreement.

 

8. The Power of Attorney shall be governed in all respects by the laws of Alberta and the laws of Canada applicable therein and the Borrower and the Lender each hereby irrevocably attorns to the non-exclusive jurisdiction of the courts and such jurisdiction in respect of all matters arising out of this Power of Attorney.

 

9. In the event of a conflict between the provisions of this Power of Attorney and the Credit Agreement, the Credit Agreement shall prevail.

 

- 2 -


Schedule “I” to the Restated Credit Agreement dated as of July 16, 2015 among ENCANA CORPORATION as Borrower, the financial and other institutions named therein from time to time as Lenders and ROYAL BANK OF CANADA as Agent

 

LENDER TRANSFER AGREEMENT

 

To: Encana Corporation

 

To: Royal Bank of Canada, as Agent

Dear Sirs:

We refer to Section 15.9 of the Restated Credit Agreement dated as of July 16, 2015 among Encana Corporation (the “ Borrower ”), the financial and other institutions named therein from time to time as Lenders (the “ Lenders ”) and Royal Bank of Canada as agent (the “ Agent ”) (as amended, modified, supplemented or restated from time to time, the “ Credit Agreement ”). Unless otherwise defined herein or the context otherwise requires, terms used herein have the meanings provided in the Credit Agreement.

This Agreement is delivered to you pursuant to Section 15.9 of the Credit Agreement and constitutes notice of confirmation to each of you of the assignment from                     (the “ Assignor ”) to                     (the “ Assignee ”) of          % of the Outstandings owing to the Assignor and the Assignor’s Commitment outstanding under the Credit Agreement on the date hereof. After giving effect to the foregoing assignment, the Borrowings and Commitments of the Assignor and Assignee for the purposes of the Credit Agreement are as set forth opposite such Person’s name on the signature pages hereof.

The Assignee hereby acknowledges and confirms that it has received a copy of the Credit Agreement and the exhibits related thereto, together with copies of the documents which were required to be delivered under the Credit Agreement as a condition to the making of Borrowings thereunder. The Assignee further confirms and agrees that in becoming a Lender and in making its Commitment and its Lender’s Proportion of Borrowings, such actions have and will be made without recourse to, or representation or warranty by the Agent.

Except as otherwise provided in the Credit Agreement, effective as of the date of acceptance hereof by the Agent and the Borrower:

 

(a) the Assignee:

 

  (i) shall be deemed automatically to have become a party to the Credit Agreement and to have all the rights and obligations of a “Lender” under the Credit Agreement and the other Loan Documents as if it were an original signatory thereto to the extent specified in the second paragraph hereof; and


  (ii) agrees to be bound by the terms and conditions set forth in the Credit Agreement and the other Loan Documents as if it were an original signatory thereto;

 

(b) [If applicable] [except as provided for in Sections 3.7(d)(ii)(D) or 3.13(j) of the Credit Agreement,] the Assignor shall be released from its obligations arising after such date under the Credit Agreement and the other Loan Documents to the extent specified in the second paragraph hereof; [ provided , however , that the Assignee shall indemnify the Assignor and hold the Assignor harmless from and against any losses or costs paid or incurred by the Assignor in connection with Sections 3.7(d)(ii)(D) or 3.13(j) of the Credit Agreement (other than losses or costs which arise out of the negligence or wilful misconduct of the Assignor);]

 

(c) the Assignor and the Assignee shall make all appropriate adjustments in payments for periods prior to such date by the Agent or with respect to the making of this Assignment directly between themselves; and

 

(d) if any Bankers’ Acceptances accepted by the Assignor or Letters of Credit issued by the Assignor remain outstanding on such date, such Bankers’ Acceptances and Letters of Credit shall remain the liability and obligation of the Assignor and the Assignor shall be entitled to all of the rights, titles and benefits arising out of the Credit Agreement and the other Loan Documents with respect to such Bankers’ Acceptances and Letters of Credit (including reimbursement rights); provided , however , that the Assignee shall indemnify the Assignor and hold the Assignor harmless from and against any losses or costs paid or incurred by the Assignor in connection with such Bankers’ Acceptances and its Lender’s Proportion of such Letters of Credit (other than losses or costs which arise out of the negligence or wilful misconduct of the Assignor).

The Assignee hereby advises each of you of the following administrative details with respect to the assigned Outstandings and Commitments and further requests the Agent to acknowledge receipt of this document:

 

(A) Branch of Account:

 

(B) Notice Address:

 

(C) Payment Instructions:

This Agreement shall be governed by laws in force in the Province of Alberta and may be executed by the Assignor and Assignee in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

DATED at Calgary, Alberta this ● day of ●, ●.

After giving effect to this Assignment:

 

- 2 -


Loans:    [describe amount, type and currency]
Bankers’ Acceptances:
Letters of Credit:
Commitment: US$ [ ]
Fronting Bank Commitment: US$ [ ]
Swing Line Commitment: US$ [ ]
After giving effect to this Assignment:
Loans:    [describe amount, type and currency]
Bankers’ Acceptances:
Letters of Credit:
Commitment: US$ [ ]
Fronting Bank Commitment: US$ [ ]
Swing Line Commitment: US$ [ ]

[ASSIGNOR]

Per:  

 

  Title: ●
Per:  

 

  Title: ●

[ASSIGNEE]

Per:

 

 

  Title: ●

Per:

 

 

  Title: ●
 

 

Accepted and Acknowledged this ● day of ●, ●
ROYAL BANK OF CANADA as Agent
By:  

 

  Title: ●
By:  

 

  Title: ●
Accepted and Acknowledged this ● day of ●, ●
ENCANA CORPORATION
By:  

 

  Title: ●
By:  

 

  Title: ●

[If applicable] [Add consent and release from the Fronting Bank(s) under Section 3.7(d)(ii)(D) of the Credit Agreement and from the Swing Line Lender(s) under Section 3.13(j) of the Credit Agreement]

 

- 3 -


Schedule “J” to the Restated Credit Agreement dated as of July 16, 2015 among ENCANA CORPORATION as Borrower, the financial and other institutions named therein from time to time as Lenders and ROYAL BANK OF CANADA as Agent

 

COMMITMENTS

AGENT:

 

Name

  

Notice Address

    
Royal Bank of Canada, as    Royal Bank of Canada   
Agent    Agency Services Group   
   4th Floor, 20 King Street West   
   Toronto, Ontario M5H 1C4   
   Attention: Manager, Agency   
   Facsimile: (416) 842-4023   

LENDERS:

 

Name

   Syndicated
Commitment
     Fronting Bank
Commitment
     Swing Line
Commitment
 

Royal Bank of Canada

   US$ 320,000,000          US$ 100,000,000   

Canadian Imperial Bank of Commerce

   US$ 320,000,000          US$ 100,000,000   

Bank of Montreal

   US$ 275,000,000          US$ 100,000,000   

The Bank of Nova Scotia

   US$ 275,000,000          US$ 100,000,000   

The Toronto-Dominion Bank

   US$ 275,000,000          US$ 100,000,000   

National Bank of Canada

   US$ 240,000,000         

BNP Paribas

   US$ 190,000,000         

Credit Agricole Corporate & Investment Bank

   US$ 125,000,000         

Credit Suisse AG, Toronto Branch

   US$ 120,000,000         

Alberta Treasury Branches

   US$ 110,000,000         


Name

   Syndicated
Commitment
     Fronting Bank
Commitment
     Swing Line
Commitment
 

Caisse centrale Desjardins

   US$ 85,000,000         

Bank of America, N.A. Canada Branch

   US$ 70,000,000         

Bank of Tokyo-Mitsubishi UFJ (Canada)

   US$ 70,000,000         

Barclays Bank PLC

   US$ 70,000,000         

Citibank, N.A., Canadian Branch

   US$ 70,000,000         

JPMorgan Chase Bank, N.A., Toronto Branch

   US$ 70,000,000         

Mizuho Bank, Ltd.

   US$ 70,000,000         

Sumitomo Mitsui Banking Corporation of Canada

   US$ 70,000,000         

Wells Fargo Bank, N.A. London Branch

   US$ 70,000,000         

Morgan Stanley Bank, N.A.

   US$ 50,000,000         

ICICI Bank Canada

   US$ 30,000,000         

Bank of China (Canada)

   US$ 25,000,000         
  

 

 

    

 

 

    

 

 

 

TOTALS

   US$ 3,000,000,000       $ 0       US$ 500,000,000   
  

 

 

    

 

 

    

 

 

 

 

- 2 -

Exhibit 10.2

U.S.$1,000,000,000

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

Dated as of October 20, 2011

Among

ALENCO INC.,

as Borrower,

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

RBS SECURITIES INC.

CITIGROUP GLOBAL MARKETS INC.

BARCLAYS CAPITAL

J.P. MORGAN SECURITIES LLC,

as Lead Arrangers,

CITIBANK, N.A.,

as Administrative Agent,

CITIBANK, N.A.,

as Swing Line Bank,

BANK OF AMERICA, N.A.

THE ROYAL BANK OF SCOTLAND N.V., (CANADA) BRANCH,

as Syndication Agents,

BARCLAYS BANK PLC

JPMORGAN CHASE BANK, N.A.,

as Documentation Agents,

and

THE INITIAL LENDERS AND

INITIAL ISSUING BANKS NAMED HEREIN,

as Initial Lenders and Initial Issuing Banks


TABLE OF CONTENTS

 

ARTICLE I  
DEFINITIONS AND ACCOUNTING TERMS   

SECTION 1.01.

  

Certain Defined Terms

     1   

SECTION 1.02.

  

Computation of Time Periods

     24   

SECTION 1.03.

  

Accounting Principles

     24   
ARTICLE II   
AMOUNTS AND TERMS OF THE ADVANCES   

SECTION 2.01.

  

The Advances

     25   

SECTION 2.02.

  

Making the Revolving Credit Advances

     26   

SECTION 2.03.

  

Making the Swing Line Advances

     28   

SECTION 2.04.

  

Issuance of and Drawings and Reimbursement Under Letters of Credit

     28   

SECTION 2.05.

  

Fees

     30   

SECTION 2.06.

  

Termination or Reduction of the Commitments

     31   

SECTION 2.07.

  

Repayment of Advances

     32   

SECTION 2.08.

  

Interest

     33   

SECTION 2.09.

  

Interest Rate Determination

     34   

SECTION 2.10.

  

Optional Conversion of Advances

     34   

SECTION 2.11.

  

Optional Prepayments of Advances

     35   

SECTION 2.12.

  

Increased Costs

     35   

SECTION 2.13.

  

Illegality

     36   

SECTION 2.14.

  

Payments and Computations

     36   

SECTION 2.15.

  

Taxes

     37   

SECTION 2.16.

  

Sharing of Payments, Etc .

     40   

Alenco - Amended and Restated Credit Agreement

 

i


SECTION 2.17.

  

Mitigation Obligations; Replacement of Lenders

     41   

SECTION 2.18.

  

Use of Proceeds

     42   

SECTION 2.19.

  

Increase of Commitments

     42   

SECTION 2.20.

  

Evidence of Debt

     44   

SECTION 2.21.

  

Defaulting Lenders

     45   
ARTICLE III   
CONDITIONS TO EFFECTIVENESS AND LENDING   

SECTION 3.01.

  

Conditions Precedent to Effectiveness

     47   

SECTION 3.02.

  

Conditions Precedent to Each Borrowing and Issuance

     49   

SECTION 3.03.

  

Determinations Under Section 3.01

     51   
ARTICLE IV   
REPRESENTATIONS AND WARRANTIES   

SECTION 4.01.

  

Representations and Warranties of the Borrower

     51   
ARTICLE V   
COVENANTS OF THE BORROWER   

SECTION 5.01.

  

Affirmative Covenants

     53   

SECTION 5.02.

  

Negative Covenants

     57   
ARTICLE VI   
EVENTS OF DEFAULT   

SECTION 6.01.

  

Events of Default

     63   
ARTICLE VII   
THE ADMINISTRATIVE AGENT   

SECTION 7.01.

  

Appointment and Authority

     68   

SECTION 7.03.

  

Exculpatory Provisions

     68   

SECTION 7.05.

  

Indemnification

     69   

Alenco - Amended and Restated Credit Agreement

 

ii


SECTION 7.06.

  

Resignation of Administrative Agent

     70   

SECTION 7.07.

  

Delegation of Duties

     71   

SECTION 7.08.

  

Non-Reliance on Administrative Agent and Other Lenders

     71   

SECTION 7.09.

  

No Other Duties, etc .

     71   
ARTICLE VIII   
MISCELLANEOUS   

SECTION 8.01.

  

Amendments, Etc

     71   

SECTION 8.03.

  

No Waiver; Remedies

     73   

SECTION 8.04.

  

Costs and Expenses

     74   

SECTION 8.05.

  

Right of Set-off

     76   

SECTION 8.06.

  

Binding Effect

     76   

SECTION 8.07.

  

Assignments and Participations

     77   

SECTION 8.08.

  

Confidentiality; Patriot Act

     80   

SECTION 8.09.

  

No Liability of the Issuing Banks

     81   

SECTION 8.10.

  

Governing Law

     81   

SECTION 8.11.

  

Extensions of Termination Date

     81   

SECTION 8.12.

  

Execution in Counterparts

     85   

SECTION 8.13.

  

Jurisdiction, Etc .

     85   

SECTION 8.14.

  

WAIVER OF JURY TRIAL

     1   

 

Schedules
Schedule I - Commitments
Exhibits        
Exhibit A    -      [Intentionally omitted]

Alenco - Amended and Restated Credit Agreement

 

iii


Exhibit B-1

   -     

Form of Notice of Borrowing

Exhibit B-2

   -     

Form of Notice of Borrowing

Exhibit C

   -     

Form of Assignment and Assumption

Exhibit D-1

   -     

Form of Opinion of Internal Counsel for, or Acting on Behalf of, the Borrower and the Guarantor

Exhibit D-2

   -     

Form of Opinion of special New York counsel for the Borrower and the Guarantor

Exhibit E-1

   -     

Form of Guaranty

Exhibit E-2

   -     

Form of Amended and Restated Guaranty

Exhibit F

   -     

Form of Extension Notice

Exhibit G

   -     

Form of Compliance Certificate

Exhibit H

   -     

Form of U.S. Tax Compliance Certificate

Exhibit I

   -     

Form of Accession Letter Agreement

Alenco - Amended and Restated Credit Agreement

 

iv


SECOND AMENDED AND RESTATED CREDIT AGREEMENT

Dated as of October 20, 2011

ALENCO INC., a Delaware corporation (the “ Borrower ”), MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, RBS SECURITIES INC., CITIGROUP GLOBAL MARKETS INC., BARCLAYS CAPITAL (“BARCLAYS CAPITAL”), the investment bank division of BARCLAYS BANK PLC (“BARCLAYS BANK”, and together with BARCLAYS CAPITAL, “BARCLAYS”) AND J.P. MORGAN SECURITIES LLC, as lead arrangers (the “ Lead Arrangers ”) for the Lender Parties (as hereinafter defined), BANK OF AMERICA, N.A. and THE ROYAL BANK OF SCOTLAND N.V., (CANADA) BRANCH, as syndication agents (the “ Syndication Agents ”), BARCLAYS BANK and JPMORGAN CHASE BANK, N.A. (“ JPMorgan ”) as documentation agents (the “ Documentation Agents ”), CITIBANK, N.A. (“ Citibank ”), as swing line bank (the “ Swing Line Bank ”) and as administrative agent (the “ Administrative Agent ”) for the Lender Parties, the banks, financial institutions and other institutional lenders (the “ Initial Lenders ”) listed on the signature pages hereof and the Initial Issuing Banks (as hereinafter defined), agree as follows:

PRELIMINARY STATEMENTS:

The Borrower entered into a Credit Agreement dated as of December 22, 2003 (the “ 2003 Credit Agreement ”), with the initial lenders named therein and Citibank, as administrative agent, pursuant to which the Lender Parties (as defined therein) agreed to extend credit to the Borrower from time to time in an aggregate principal amount of up to $300,000,000.

The 2003 Credit Agreement was amended and restated pursuant to the Amended and Restated Credit Agreement dated as of December 8, 2004, and was further amended and restated pursuant to the Amended and Restated Credit Agreement dated as of December 14, 2006, as amended by Amendment No. 1 to Amended and Restated Credit Agreement dated as of July 31, 2009 (the “ Original Credit Agreement ”), among the Borrower, the initial lenders named therein and Citibank, as administrative agent, pursuant to which the Lender Parties (as defined therein) agreed to extend credit to the Borrower from time to time in an aggregate principal amount of up to $565,000,000.

The Borrower has requested that the Original Credit Agreement be amended and restated as set forth in this Agreement and the Lender Parties have indicated their willingness to agree to amend and restate the Original Credit Agreement as set forth in and on the terms and conditions contained in this Agreement.

NOW THEREFORE, in consideration of the premises and of the mutual covenants and agreements contained herein, the parties hereto hereby agree as follows:

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

SECTION 1.01.  Certain Defined Terms .

Alenco - Amended and Restated Credit Agreement


As used in this Agreement (unless stated otherwise), the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

Accession Letter Agreement ” means a letter agreement entered into by an Eligible Assignee and the Borrower and accepted by the Administrative Agent, in substantially the form of Exhibit I hereto.

Administrative Agent ” has the meaning specified in the recital of parties to this Agreement.

Administrative Agent’s Account ” means the account of the Administrative Agent maintained by the Administrative Agent at Citibank with its office at 1615 Brett Road, Building #3, New Castle, Delaware 19720, ABA Number XXXXXXXXX, Account No. XXXXXXXX, Account Name NAIB Agency - MTF, Re: Alenco, Attention: Bank Loan Syndications.

Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

Advance ” means a Revolving Credit Advance, a Swing Line Advance or a Letter of Credit Advance.

Affected Lender ” has the meaning specified in Section 5.02(d).

Affiliate ” means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person or is a director or officer of such Person. For purposes of this definition, the term “control” (including the terms “controlling”, “controlled by” and “under common control with”) of a Person means the possession, direct or indirect, of the power to vote 5% or more of the Voting Shares of such Person or to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Shares, by contract or otherwise.

Agreement ” means this agreement, as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms hereof.

Amended and Restated Guaranty ” means each Amended and Restated Guaranty to be dated as of each Section 2.19 Effective Date and in substantially the form of Exhibit E-2 hereto, as may be further amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof and hereof.

Applicable Law ” means, with respect to any Person, property, transaction or event, and whether or not having the force of law, all applicable provisions of laws, statutes, regulations, rules, guidelines, by-laws, treaties, orders, policies, judgments, decrees and official directives of Governmental/Judicial Bodies or Persons acting under the authority of any Governmental/Judicial Body.

Applicable Lending Office ” means, with respect to each Lender, such Lender’s Domestic Lending Office in the case of a Base Rate Advance and such Lender’s Eurodollar Lending Office in the case of a Eurodollar Rate Advance.

 

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Applicable Margin ” means with respect to Base Rate Advances or Eurodollar Rate Advances outstanding at any time, “ Applicable Fee Rate ” means with respect to Letters of Credit outstanding at any time, and “ Applicable Percentage ” means, at any time, a rate per annum equal to the margin or rate, as the case may be, set out in the following table under the applicable column opposite the applicable rating category assigned by S&P or Moody’s to the long term senior unsecured debt of the Guarantor at such time; provided that (a) if at such time the rating so assigned by one of such agencies differs from the rating assigned by the other agency by only one level, then the Applicable Margin for such Base Rate Advances or Eurodollar Rate Advances, the Applicable Fee Rate for such Letters of Credit or the Applicable Percentage, as the case may be, shall be the margin or rate, as the case may be, opposite the higher of the two levels so assigned by such agencies, (b) if at such time the rating so assigned by one of such agencies differs from the rating assigned by the other agency by two or more levels (for example, BBB by S&P and lower than Baa3 by Moody’s), then the Applicable Margin for such Base Rate Advances or Eurodollar Rate Advances, the Applicable Fee Rate for such Letters of Credit or the Applicable Percentage, as the case may be, shall be the average of the margin or rate, as the case may be, corresponding to those levels (to use the foregoing example, (i) the Applicable Margin for Base Rate Advances would be 87.5 bps, (ii) the Applicable Margin for Eurodollar Rate Advances and the Applicable Fee Rate for Letters of Credit would be 187.5 bps and (iii) the Applicable Percentage would be 37.5 bps), (c) if at such time only one of such agencies assigns a rating, then the Applicable Margin for such Base Rate Advances or Eurodollar Rate Advances, the Applicable Fee Rate for such Letters of Credit or the Applicable Percentage, as the case may be, shall be the margin or rate, as the case may be, opposite the sole rating, and (d) if neither agency assigns a rating, then the Applicable Margin for such Base Rate Advances or Eurodollar Rate Advances, the Applicable Fee Rate for such Letters of Credit or the Applicable Percentage, as the case may be, shall be the margin or rate, as the case may be, opposite the lowest rating level:

 

Rating Level (S&P/Moody’s)

   Applicable Margin
for Base Rate
Advances
     Applicable Margin
for Eurodollar Rate
Advances
and Applicable Fee
Rate for  Letters of
Credit
     Applicable
Percentage
 

A / A2 or higher

     0.0 bps         87.5 bps         17.5 bps   

A- / A3

     0.0 bps         100.0 bps         20.0 bps   

BBB+ / Baa1

     25.0 bps         125.0 bps         25.0 bps   

BBB / Baa2

     50.0 bps         150.0 bps         30.0 bps   

BBB- / Baa3

     75.0 bps         175.0 bps         35.0 bps   

lower than BBB- / lower than Baa3, or unrated by both agencies

     125.0 bps         225.0 bps         45.0 bps   

provided , further , that, with respect to Letters of Credit which are not characterized as Direct Credit Substitutes (as determined by the applicable Issuing Bank, acting reasonably), the Applicable Fee Rate shall be 66.67% of the applicable rates described above; provided that, if any such Letter of Credit were determined by the Office of the Superintendent of Financial

 

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Institutions Canada, or by any federal regulatory authority in the United States, to be a Direct Credit Substitute after the issuance thereof, the Applicable Fee Rate shall be adjusted to 100.00% of the applicable rates described above with retroactive effect to the date of issuance and the incremental issuance fee payable for the period from the date of issuance to the date of such determination shall be payable on the final Business Day of the earliest of the next March, June, September and December.

Approved Fund ” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

Assigned Interests ” has the meaning specified in Section 8.11(e).

Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an Eligible Assignee, and accepted and approved by the Administrative Agent and approved by the Issuing Banks and, if applicable, approved by the Borrower in accordance with Section 8.07, in substantially the form of Exhibit C hereto.

Available Amount ” of any Letter of Credit means, at any time, the maximum amount available to be drawn under such Letter of Credit at such time (assuming compliance at such time with all conditions to drawing).

Base Rate ” means a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the highest of:

(a) the rate of interest announced publicly by Citibank in New York, New York, from time to time, as Citibank’s base rate;

(b)  1 2 of one percent per annum above the Federal Funds Rate; and

(c) the British Bankers Association Interest Settlement Rate applicable to Dollars for a period of one month (“ One Month LIBOR ”) plus 1.00% (for the avoidance of doubt, the One Month LIBOR for any day shall be based on the rate appearing on Reuters LIBOR01 Page (or other commercially available source providing such quotations as designated by the Administrative Agent from time to time) at approximately 11:00 a.m. London time on such day).

Base Rate Advance ” means an Advance that bears interest as provided in Section 2.08(a)(i).

basis point ” or “ bps ” means one one-hundredth of one percent.

Board of Directors ” means the board of directors of the Guarantor or, if duly constituted and whenever duly empowered, the executive committee of the board of directors of the Guarantor for the time being and reference to action by the directors means actions by the directors of the Guarantor as a board or action by the said executive committee as such committee.

Borrower Extension Notice ” has the meaning specified in Section 8.11(c).

 

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Borrowing ” means a borrowing consisting of (a) Revolving Credit Advances of the same Type made on the same day by the Lenders or (b) a Swing Line Advance made by the Swing Line Bank pursuant to Section 2.03(a).

Bow Office Lease ” means, collectively and individually, the Headlease, the Sublease and the Encana Indemnity and all amendments, supplements, renewals, extensions, replacements and restatements of any of the foregoing and any other agreements entered into pursuant to any of the foregoing relating to The Bow office tower or any properties ancillary thereto. For purposes of this definition, “ Headlease ” means, collectively, the lease made as of the 7th day of February, 2007, between Encana Developments Partnership (“ EDP ”) (as landlord) and Encana Leasehold Limited Partnership (“ ELLP ”) (as tenant), as assigned by EDP to Centre Street Trust pursuant to an assignment and assumption agreement dated the 8th day of February, 2007 between EDP and Centre Street Trust, as amended pursuant to letter agreements dated December 10, 2007, February 11, 2008, February 14, 2008, and February 25, 2009 among Centre Street Trust, ELLP and EDP, and as amended by a lease amending agreement made as of April 22, 2009, among, inter alia, Centre Street Trust and ELLP, as the same may be further assigned or amended, restated, superseded, supplemented, extended, replaced or modified from time to time; “ Sublease ” means the Sublease with respect to a portion of the premises located in The Bow entered into between ELLP as sublandlord and the Borrower as subtenant dated November 29, 2009 and effective on or about November 30, 2009, as such sublease may be amended, restated, superseded, supplemented, extended, replaced, or modified from time to time; and “ Encana Indemnity ” means the indemnity entered into by the Guarantor and EDP dated February 7, 2007, as assigned by EDP to Centre Street Trust pursuant to an assignment and assumption agreement dated the 8th day of February, 2007, between EDP and Centre Street Trust, as the same may be amended, restated, superseded, supplemented, extended, replaced or modified from time to time.

Business Day ” means a day of the year on which banks are not required or authorized by law to close in New York City and Toronto, provided that, if the applicable Business Day relates to any Eurodollar Rate Advances, “Business Day” means a day of the year on which banks are not required or authorized by law to close in New York City, Toronto and on which dealings are carried on in the London interbank market.

Capital Lease ” means, for any Person, the capitalized amount of a lease or other arrangement relating to property which, in accordance with GAAP, should be accounted for as a capital lease on a balance sheet of such Person at such time; provided that (x) any real property lease entered into before December 31, 2010 (including the Bow Office Lease) shall be excluded from this definition and (y) any leases that would have been characterized as operating leases under GAAP as in effect on December 31, 2010 shall be deemed to be operating leases and shall be excluded from this definition.

Cash Collateralize ” means, in respect of an obligation, provide and pledge (as a first priority perfected security interest) cash collateral in Dollars, at a location and pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent (and “Cash Collateralization” has a corresponding meaning).

Centralized Banking Arrangements ” means any centralized banking arrangements entered into by the Borrower with any financial institution in the ordinary course of business for the purpose of obtaining cash management services (which arrangements may include, without

 

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limitation, the pooling and set-off of account balances between accounts belonging to different entities, the provision of guarantees or indemnities or the assumption of joint and several liabilities by one or more entities in regard to obligations of one or more other entities, or other similar arrangements).

Citibank ” has the meaning specified in the recital of parties to this Agreement.

Commitment ” means a Revolving Credit Commitment, a Letter of Credit Sub-Commitment or a Swing Line Sub-Commitment.

Commitment Date ” has the meaning specified in Section 2.19(a).

Common Equity Securities ” means the securities of a Person which are entitled to share without limitation in a distribution of the assets of such Person upon any liquidation, dissolution or winding-up of such Person.

Communications ” has the meaning specified in Section 8.02(d).

Compliance Certificate ” means a certificate of the Borrower substantially in the form of Exhibit G hereto, duly executed by an authorized officer of the Borrower.

Confidential Information ” means the financial, operational and other information and data that the Borrower or the Guarantor furnishes to the Administrative Agent, the Syndication Agents, the Documentation Agents, the Lead Arrangers or any Lender Party in a writing designated as confidential or, by the context, reasonably anticipated to be confidential, but does not include any such information that is or becomes generally available to the public other than through a breach of the confidentiality obligations by the Administrative Agent, any Syndication Agent, any Documentation Agent, any Lead Arranger and/or a Lender Party under this Agreement or that is or becomes available to the Administrative Agent, any Syndication Agent, any Documentation Agent, any Lead Arranger or such Lender Party from a source other than the Borrower or Guarantor.

Consolidated ” refers to the consolidation of accounts in accordance with GAAP.

Consolidated Assets ” means, at any time, the aggregate amount of assets of the Guarantor as set forth in the Guarantor’s most recent Consolidated financial statements prepared in accordance with GAAP.

Consolidated Capitalization ” means, at the end of a Fiscal Quarter, and as determined on a Consolidated basis in accordance with GAAP, the aggregate of:

(a) Consolidated Net Worth; and

(b) Consolidated Debt.

Consolidated Debt ” means, at the end of a Fiscal Quarter and as determined on a Consolidated basis in accordance with GAAP, all Financing Debt of the Guarantor at such time but excluding any Financing Debt referred to in the proviso to the definition of Consolidated Debt to Consolidated Capitalization Ratio.

 

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Consolidated Debt to Consolidated Capitalization Ratio ” means, at the end of a Fiscal Quarter, the ratio of Consolidated Debt at such date to Consolidated Capitalization at such date; provided that , for purposes of calculating such ratio, Consolidated Debt shall exclude:

(a) Any Financing Debt where the Guarantor or a Subsidiary of the Guarantor has irrevocably deposited with the proper depository in trust the necessary cash or marketable debt instruments for the defeasance, redemption or satisfaction of such Financing Debt prior to its scheduled maturity date in accordance with the provisions of the indenture, agreement or other instrument governing such Financing Debt (and such deposits shall be excluded in any calculation of Consolidated Tangible Assets); and

(b) Any new Financing Debt borrowed or issued for the purpose of repaying or satisfying any existing Financing Debt prior to its maturity date provided that (A) such existing Financing Debt matures within 12 months of the date on which the new Financing Debt is borrowed or issued, (B) such new Financing Debt will only be excluded to the extent it is deposited into a segregated account of the Guarantor or the Borrower (as certified by a Senior Financial Officer in an officer’s certificate delivered to the Administrative Agent promptly after such deposit) and (C) such deposits shall be excluded in any calculation of Consolidated Tangible Assets.

Consolidated Net Tangible Assets ” means, with respect to any Person at any time, the total amount of assets of such Person and its Subsidiaries on a Consolidated basis (less applicable reserves and other properly deductible items) after deducting therefrom:

(a) all current liabilities (excluding any indebtedness classified as a current liability and any current liabilities which are by their terms extendible or renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed);

(b) all goodwill, trade names, trademarks, patents and other like intangibles; and

(c) appropriate adjustments on account of minority interests of other Persons holding shares of the Subsidiaries of such Person,

in each case, as shown on the most recent annual audited or quarterly unaudited Consolidated balance sheet of such Person computed in accordance with GAAP.

Consolidated Net Worth ” means, at the end of a Fiscal Quarter and as determined in accordance with GAAP on a Consolidated basis for the Guarantor, the Consolidated shareholder’s equity of the Guarantor as shown on the most recent annual audited or quarterly unaudited Consolidated balance sheet of the Guarantor (including, for certainty, to the extent included as shareholder’s equity on such balance sheet, preferred securities and minority interests, but excluding all amounts included in shareholder’s equity attributable to Non-Recourse Assets of the Guarantor).

Consolidated Tangible Assets ” means, at the end of a Fiscal Quarter and as determined in accordance with GAAP on a Consolidated basis for the Guarantor, the total assets of the Guarantor shown on the most recent annual audited or quarterly unaudited Consolidated balance

 

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sheet of the Guarantor (excluding (i) goodwill, trademarks, copyrights and other similar intangible assets and (ii) Non-Recourse Assets of the Guarantor); provided , that Consolidated Tangible Assets shall not include any deposits referred to in either (i) or (ii) of the proviso to the definition of Consolidated Debt to Consolidated Capitalization Ratio.

Convert ”, “ Conversion ” and “ Converted ” each refers to a conversion of Advances of one Type into Advances of the other Type pursuant to Section 2.09, 2.10 or 2.13.

Declining Lender ” has the meaning specified in Section 8.11(c).

Default ” means any Event of Default or any event that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.

Defaulting Lender ” means, at any time, subject to Section 2.21(c), a Lender as to which the Administrative Agent has notified the Borrower that (i) such Lender has failed for three or more Business Days to comply with its obligations under this Agreement to make an Advance, make a payment to the Issuing Bank in respect of a Letter of Credit Advance and/or make a payment to the Swing Line Bank in respect of a Swing Line Advance (each a “ funding obligation ”), unless such Lender and at least one other Lender has notified the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding has not been satisfied (which conditions precedent, together with the applicable default, if any, will be specifically identified in such writing), (ii) such Lender has notified the Administrative Agent, the Borrower, an Issuing Bank or the Swing Line Bank in writing, or has stated publicly, that it will not comply with any such funding obligation hereunder unless (x) such writing or statement states that such position is based on such Lender’s determination that one or more conditions precedent to funding cannot be satisfied (which conditions precedent, together with the applicable default, if any, will be specifically identified in such writing or public statement) and (y) at least one other Lender has made a similar notification to the one described in clause (ii)(x), (iii) such Lender that has defaulted on its funding obligations under other loan agreements or credit agreements generally under which it has commitments to extend credit or that has notified, or whose Parent Company has notified, the Administrative Agent or the Borrower in writing, or has stated publicly, that it does not intend to comply with its funding obligations under loan agreements or credit agreements generally, (iv) such Lender has, for three or more Business Days, failed to confirm in writing to the Administrative Agent, in response to a written request of the Administrative Agent or the Borrower, that it will comply with its funding obligations hereunder (provided that such Lender will cease to be a Defaulting Lender pursuant to this clause (iv) upon the Administrative Agent’s and the Borrower’s receipt of such written confirmation), or (v) a Lender Insolvency Event has occurred and is continuing with respect to such Lender or its Parent Company; provided that a Lender Insolvency event shall not be deemed to occur with respect to a Lender or its Parent Company solely as a result of the acquisition or maintenance of an ownership interest in such Lender or Parent Company by a governmental authority or instrumentality thereof where such action does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or permit such Lender (or such governmental authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (i) through (v) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a

 

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Defaulting Lender (subject to Section 2.21(c)) upon delivery of written notice of such determination to the Borrower, each Issuing Bank, each Swing Line Bank and each Lender.

Direct Credit Substitutes ” has the meaning contemplated within the Guidelines published March 1993 by the Office of the Superintendent of Financial Institutions Canada on Capital Adequacy Requirements or within the guidelines, rules or regulations of the Board of Governors of the Federal Reserve System or the Comptroller of the Currency of the United States, in each case as amended from time to time.

Direct Pay Letters of Credit ” means any Letter of Credit other than a Trade Letter of Credit that is contemplated may be used as the primary payment mechanism for an obligation (rather than as a backstop).

Documentation Agents ” has the meaning specified in the recital of parties to this Agreement.

Documents ” means this Agreement, the Guaranty and all certificates, notices and other documents delivered or to be delivered to the Administrative Agent or the Lender Parties, or both, in relation to this Agreement or the Guaranty pursuant hereto or thereto and, when used in relation to any Person, the term “Documents” means and refers to the Documents executed and delivered by such Person.

Dollar ”, “ United States Dollar ”, “ U.S. Dollar ” and the sign “ $ ” each means the lawful currency of the United States of America.

Domestic Lending Office ” means, with respect to any Lender, the office of such Lender specified as its “Domestic Lending Office” in its Administrative Questionnaire delivered to the Administrative Agent, or such other office of such Lender as such Lender may from time to time specify to the Borrower and the Administrative Agent.

Effective Date ” has the meaning specified in Section 3.01.

Eligible Assignee ” means any Person that meets the requirements to be an assignee under Section 8.07(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 8.07(b)(iii)).

Environmental Action ” means any action, suit, demand, demand letter, claim, notice of non-compliance or violation, notice of liability, proceeding, consent order or consent agreement relating in any way to any Environmental Law, Environmental Permit or Hazardous Material or arising from alleged injury or threat of injury to health, safety or the environment, including, without limitation, (a) by any governmental or regulatory authority for enforcement, cleanup, removal, response, remedial or other similar actions or damages and (b) by any governmental or regulatory authority or any third party for damages, contribution, indemnification, cost recovery, compensation or injunctive relief.

Environmental Law ” means any applicable federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, judgment, decree or judicial or agency interpretation, policy or guidance having the force or effect of law relating to pollution or protection of the environment, health, safety or natural resources, including, without limitation, those relating to

 

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the use, handling, transportation, treatment, storage, disposal, release or discharge of Hazardous Materials.

Environmental Permit ” means any permit, approval, identification number, license or other authorization required under any Environmental Law.

Equity of the Borrower ” means, on any date, the shareholders’ equity appearing in the Borrower’s most recent audited Consolidated financial statements prepared in accordance with GAAP; provided that the total of the book value of issued and fully paid preferred shares shall be included and appraisal increments or appraisal surpluses shall not be included in Equity of the Borrower.

ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

ERISA Affiliate ” means any Person that for purposes of Title IV of ERISA is a member of the controlled group of any Loan Party, or under common control with any Loan Party, within the meaning of Section 414(b), (c), (m) and (o) of the Internal Revenue Code.

ERISA Event ” means (a) the occurrence of a reportable event, within the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day notice requirement with respect to such event has been waived by the PBGC; (b) the application for a minimum funding waiver under Section 412(c) of the Internal Revenue Code with respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate such Plan in a distress termination pursuant to Section 4041(a)(2) of ERISA (including any such notice of a distress termination with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a facility of any Loan Party or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by any Loan Party or any ERISA Affiliate from a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for the imposition of a Lien under Section 303(k) of ERISA shall have been met with respect to any Plan; or (g) the institution by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that is reasonably expected to result in the termination of, or the appointment of a trustee to administer, a Plan.

Eurocurrency Liabilities ” has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.

Eurodollar Lending Office ” means, with respect to any Lender, the office of such Lender specified as its “Eurodollar Lending Office” in its Administrative Questionnaire delivered to the Administrative Agent, or such other office of such Lender as such Lender may from time to time specify to the Borrower and the Administrative Agent.

Eurodollar Rate ” means, for any Interest Period for each Eurodollar Rate Advance comprising part of the same Borrowing, an interest rate per annum equal to the rate per annum obtained by dividing (a) the LIBO Rate for such Interest Period by (b) a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for such Interest Period.

 

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Eurodollar Rate Advance ” means an Advance that bears interest as provided in Section 2.08(a)(ii).

Eurodollar Rate Reserve Percentage ” for any Interest Period for all Eurodollar Rate Advances comprising part of the same Borrowing means the reserve percentage applicable two (2) Business Days before the first day of such Interest Period under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System in New York City with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or with respect to any other category of liabilities that includes deposits by reference to which the interest rate on Eurodollar Rate Advances is determined) having a term equal to such Interest Period.

Events of Default ” has the meaning specified in Section 6.01.

Extended Financing Debt ” has the meaning specified in Section 6.01(d).

Extended Termination Date ” has the meaning specified in Section 8.11(a).

Extending Lender ” has the meaning specified in Section 8.11(c).

Extension Date ” has the meaning specified in Section 8.11(a).

Extension Notice ” has the meaning specified in Section 8.11(b).

Facilities ” means any drilling equipment, production equipment and platforms or mining equipment; pipelines, pumping stations and other pipeline facilities; terminals, warehouses and storage facilities; bulk plants; production, separation, dehydration, extraction, treating and processing facilities; gasification or natural gas liquefying facilities, flares, stacks and burning towers; floatation mills, crushers and ore handling facilities; tank cars, tankers, barges, ships, trucks, automobiles, airplanes and other marine, automotive, aeronautical and other similar moveable facilities or equipment; computer systems and associated programs or office equipment; roads, airports, docks (including drydocks); reservoirs and waste disposal facilities; sewers; generating plants (including power plants) and electric lines; telephone and telegraph lines, radio and other communications facilities; townsites, housing facilities, recreation halls, stores and other related facilities; and similar facilities and equipment of or associated with any of the foregoing.

Federal Bankruptcy Code ” means Title 11 of the United States Code.

FATCA ” means Sections 1471 through 1474 of the Internal Revenue Code in effect on the date hereof (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof.

Federal Funds Rate ” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as

 

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published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

Financial Instrument Obligations ” means obligations arising under:

(a) interest rate swap agreements, forward rate agreements, floor, cap or collar agreements, futures or options, insurance or other similar agreements or arrangements, or any combination thereof, entered into by a Person relating to interest rates or pursuant to which the price, value or amount payable thereunder is dependent or based upon interest rates in effect from time to time or fluctuations in interest rates occurring from time to time;

(b) currency swap agreements, cross-currency agreements, forward agreements, floor, cap or collar agreements, futures or options, insurance or other similar agreements or arrangements, or any combination thereof, entered into by a Person relating to currency exchange rates or pursuant to which the price, value or amount payable thereunder is dependent or based upon currency exchange rates in effect from time to time or fluctuations in currency exchange rates occurring from time to time; and

(c) commodity swap or hedging agreements, floor, cap or collar agreements, commodity futures or options or other similar agreements or arrangements, or any combination thereof, entered into by a Person relating to one or more commodities or pursuant to which the price, value or amount payable thereunder is dependent or based upon the price of one or more commodities in effect from time to time or fluctuations in the price of one or more commodities occurring from time to time.

Finance Co. ” means Encana Holdings Finance Corp., an unlimited liability company incorporated under the laws of Nova Scotia, and any successor thereto.

Financing Debt ” means, with respect to any Person and at any time, all indebtedness for borrowed money of such Person at such time and specifically includes (without duplication):

(a) indebtedness of such Person arising pursuant to bankers’ acceptance facilities, note purchase facilities and commercial paper programs;

(b) indebtedness of such Person for borrowed money evidenced by and owed under a bond, note, debenture or similar instrument;

(c) all indebtedness of such Person representing the deferred purchase price of any property which, in accordance with its terms is, or after giving effect to any renewal or extension provisions of such arrangements may be, payable by such Person more than 12 months after the date of acquisition;

(d) the amounts under Capital Leases under which such Person is the lessee;

 

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(e) indebtedness of such Person arising pursuant to letters of credit or letters of guarantee securing or supporting any indebtedness referred to in paragraphs (a), (b), (c), (d) and (f) of this definition; and

(f) (i) obligations of such Person under guarantees, indemnities or other contingent obligations securing or supporting any indebtedness or other obligations of any other Person referred to in paragraphs (a), (b), (c), (d) and (e) of this definition, and (ii) all other obligations of such Person incurred for the purpose of or having the effect of providing financial assistance to another Person to secure or support any indebtedness or other obligations of any other Person referred to in paragraphs (a), (b), (c), (d) and (e) of this definition, including endorsements with recourse of bills of exchange constituting or evidencing any such indebtedness or obligations (other than for collection or deposit in the ordinary course of business);

provided that Financing Debt of a Person shall not include (A) any Non-Recourse Debt of such Person, (B) (x) indebtedness under any real property leases entered into before December 31, 2010 (including the Bow Office Lease) and (y) any leases that would have been characterized as operating leases under GAAP as in effect on December 31, 2010 and (C) where such Person is a Wholly-Owned Subsidiary, any of the foregoing which is owed to the Guarantor or another Wholly-Owned Subsidiary; provided , further that indebtedness of the Guarantor under the Guarantor Credit Agreement shall constitute Financing Debt of the Guarantor.

Fiscal Quarter ” means the first three (3) months of the fiscal year as adopted by the Borrower or the Guarantor, as the case may be, from time to time, and each successive period of three (3) months in such fiscal year.

GAAP ” means, with respect to any Person at any time, generally accepted accounting principles in Canada which are in effect from time to time, unless such Person’s most recent audited annual or unaudited interim financial statements are not prepared in accordance with generally accepted accounting principles in Canada, in which case GAAP shall mean generally accepted accounting principles in the United States which are in effect from time to time.

Governmental/Judicial Body ” means:

(a) any government, parliament or legislature, any regulatory or administrative authority, agency, commission or board (including any board having jurisdiction in respect of pipelines or the oil and gas industry generally) and any other statute, rule or regulation making entity having jurisdiction in the relevant circumstances;

(b) any Person to whom a government, parliament or legislature, any regulatory or administrative authority, agency, commission or board or any other statute, rule or regulation making entity referred to in paragraph (a) has delegated power or authority under a statute, rule or regulation thereof; and

(c) any judicial, administrative or arbitral court, authority, tribunal or commission having jurisdiction in the relevant circumstances.

 

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Guarantor ” means EnCana Corporation, a corporation subsisting under the Canada Business Corporations Act , and its successors.

Guarantor Credit Agreement ” means the Extendible Revolving – Term Credit Facility dated as of October 12, 2011 among the Guarantor, as borrower, the financial and other institutions party thereto from time to time as lenders, and Royal Bank of Canada, as administrative agent, as such agreement may be further amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms.

Guarantor Subsidiary ” means, at any time, a Subsidiary of the Guarantor that is then guaranteeing the borrowings and letters of credit under the Guarantor Credit Agreement in accordance therewith.

Guaranty ” means the Second Amended and Restated Guaranty dated as of the date hereof, in substantially the form of Exhibit E-1 hereto, as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof and hereof. Upon the execution and delivery of each Amended and Restated Guaranty pursuant to Section 2.19, the term “Guaranty” shall mean such Amended and Restated Guaranty.

Hazardous Material ” means any waste, material or substance that is defined as hazardous in or pursuant to any Environmental Law or which is subject to regulation or control pursuant thereto.

Increase Date ” has the meaning specified in Section 2.19(a).

Increase Request ” has the meaning specified in Section 2.19(a).

Increasing Lender ” has the meaning specified in Section 2.19(a).

Indebtedness ” means indebtedness created, issued or assumed for borrowed funds, or for the unpaid purchase price of property of the Borrower or a Restricted Subsidiary, and includes, without duplication, indebtedness guaranteed by the Borrower or a Restricted Subsidiary.

Indemnified Costs ” has the meaning specified in Section 7.05.

Indemnified Party ” has the meaning specified in Section 8.04(b).

Initial Issuing Bank ” means Citibank.

Initial Lender ” has the meaning specified in the recital of parties to this Agreement.

Interest Period ” means, for each Eurodollar Rate Advance comprising part of the same Borrowing, the period commencing on the date of such Eurodollar Rate Advance or the date of the Conversion of any Base Rate Advance into such Eurodollar Rate Advance and ending on the final day of the period selected by the Borrower pursuant to the provisions below and, thereafter, each subsequent period commencing on the final day of the immediately preceding Interest Period and ending on the final day of the period selected by the Borrower pursuant to the provisions below. The duration of each such Interest Period shall be one week, two weeks, one,

 

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two, three or six months, and subject to clause (c) of this definition, nine or twelve months, as the Borrower may, upon notice received by the Administrative Agent not later than 12:00 P.M. (New York City time) on the second Business Day prior to the first day of such Interest Period, select; provided , however :

(a) the Borrower may not select any Interest Period that ends after the Termination Date unless, after giving effect to such selection, the aggregate principal amount of Base Rate Advances and of Eurodollar Rate Advances having Interest Periods that end on or prior to the Termination Date shall be at least equal to the aggregate principal amount of Advances due and payable on or prior to such date;

(b) whenever the final day of any Interest Period would otherwise occur on a day other than a Business Day, the final day of such Interest Period shall be extended to occur on the next succeeding Business Day, provided , however , if such extension would cause the final day of such Interest Period to occur in the next following calendar month, the final day of such Interest Period shall occur on the next preceding Business Day;

(c) in the case of any such Borrowing, the Borrower shall not be entitled to select an Interest Period having duration of nine or twelve months unless, by 2:00 P.M. (New York City time) on the third Business Day prior to the first day of such Interest Period, each Lender notifies the Administrative Agent that such Lender will be providing funding for such Borrowing with such Interest Period (the failure of any Lender to so respond by such time being deemed for all purposes of this Agreement as an objection by such Lender to the requested duration of such Interest Period); provided that, if any or all of the Lenders object to the requested duration of such Interest Period, the duration of the Interest Period for such Borrowing shall be one week, two weeks, one, two, three or six months, as specified by the Borrower in the applicable Notice of Borrowing as the desired alternative to an Interest Period of nine or twelve months; and

(c) whenever the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such Interest Period, such Interest Period shall end on the last Business Day of such succeeding calendar month.

Internal Revenue Code ” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

Issuing Bank ” means the Initial Issuing Bank and each Eligible Assignee to which a Letter of Credit Sub-Commitment hereunder has been assigned pursuant to Section 8.07 or any other Lender that agrees to become an Issuing Bank, as issuer of a Letter of Credit, so long as such Eligible Assignee or other Lender expressly agrees to perform in accordance with their terms all of the obligations that by their terms are required to be performed by it as an Issuing Bank and notifies the Administrative Agent of its Letter of Credit Sub-Commitment.

L/C Obligations ” means, as of any date, the aggregate Available Amount of outstanding Letters of Credit and Revolving Credit Advances made by an Issuing Bank in accordance with Section 2.04 that have not been funded by the Lenders.

 

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L/C Related Documents ” has the meaning specified in Section 2.07(b)(ii).

Lead Arrangers ” has the meaning specified in the recital of parties to this Agreement.

Lender Party ” means any Lender, the Swing Line Bank or any Issuing Bank.

Lender Insolvency Event ” means that (i) a Lender or its Parent Company is insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors, or (ii) such Lender or its Parent Company is the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or similar Person charged with the reorganization or liquidation of its business or custodian has been appointed for such Lender or its Parent Company, or such Lender or its Parent Company has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or appointment.

Lenders ” means, collectively, the Initial Lenders and each other Person listed on Schedule I hereto or that shall become a party hereto pursuant to Section 2.19 or Section 8.07.

Letter of Credit ” has the meaning specified in Section 2.01(b).

Letter of Credit Advance ” means an advance made by any Issuing Bank or any Lender pursuant to Section 2.04(c).

Letter of Credit Agreement ” has the meaning specified in Section 2.04(a).

Letter of Credit Sub-Commitment ” means, with respect to any Issuing Bank at any time, the amount set forth opposite such Issuing Bank’s name on Schedule I hereto under the caption ‘Letter of Credit Sub-Commitment’ or, if such Issuing Bank has entered into one or more Assignments and Assumptions, set forth for such Issuing Bank in the Register maintained by the Administrative Agent pursuant to Section 8.07(c) as such Issuing Bank’s ‘Letter of Credit Sub-Commitment’, as such amount may be reduced at or prior to such time pursuant to Section 2.06.

LIBO Rate ” means, for any Interest Period, the rate of interest per annum, calculated on the basis of a year of 360 days, appearing on Reuters Screen LIBOR01 Page (or any successor page) as the London interbank offered rate for deposits in the applicable currency at approximately 11:00 A.M. (London time) two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period or, if for any reason such rate is not available, the average of the respective rates shown on the display referred to as the “Libo Page” (or any display substituted therefor) of Reuter Monitor Money Rates Service with respect to the Reference Banks in the London interbank market named on such display as of 11:00 A.M. (London, England time) on the second Business Day prior to the first day of such Interest Period, for an amount in the case of each such Reference Bank similar to the amount of the Eurodollar Rate Advance of such Reference Bank to be outstanding during such Interest Period and for a period comparable to such Interest Period; provided , however , that if it is not possible for the Administrative Agent to ascertain such rate as aforesaid or if such rate is for any reason unavailable for any Reference Banks, “LIBO Rate” means, for such Interest Period, the rate of interest per annum, calculated on the basis of a year of 360 days, equal to the rate at which United States Dollars are offered by the principal lending office in London, England of Citibank

 

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in the London interbank market at approximately 11:00 A.M. (London, England time) on the second Business Day prior to the first day of such Interest Period, for an amount similar to the amount of the Eurodollar Rate Advance of Citibank to be outstanding during such Interest Period and for a period comparable to such Interest Period.

Lien ” means any lien, security interest, mortgage, hypothecation or other charge or encumbrance of any kind.

Loan Documents ” means (a) this Agreement, (b) the Guaranty and (c) each Letter of Credit Agreement, in each case as amended, supplemented or otherwise modified from time to time in accordance with the terms thereof and hereof.

Loan Parties ” means the Borrower and the Guarantor.

Margin Regulations ” means Regulations U and X of the Board of Governors of the Federal Reserve System, as in effect from time to time.

Margin Stock ” has the meaning specified in Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time.

Material Adverse Change ” means any material adverse change in the business, operations, properties, assets or financial condition of the Guarantor and its Subsidiaries (including the Borrower) taken as a whole.

Material Adverse Effect ” means a material adverse effect on (a) the business, operations, properties, assets or financial condition of the Guarantor and its Subsidiaries (including the Borrower) taken as a whole or (b) the ability of the Borrower to pay any amounts owing from time to time under this Agreement or the ability of the Guarantor to pay any amounts owing from time to time under the Guaranty; provided that in no event shall fluctuations in commodity prices for oil and/or natural gas be regarded as an act, event or condition that in and of itself has a Material Adverse Effect.

Material Guarantor Subsidiary ” means from time to time (a) any Subsidiary of the Guarantor (including the Borrower) which, on a Consolidated basis for such Subsidiary and its Subsidiaries, has assets which have a value, as reflected on the Consolidated balance sheet of the Guarantor most recently delivered to the Lenders under any of the Loan Documents, in excess of 10% of the value of the Consolidated assets of the Guarantor and its Subsidiaries (including the Borrower) as reflected therein, and (b) any other Subsidiary so designated by the Guarantor.

Material Subsidiary ” means, at any time, any Subsidiary that has total assets recorded on its then most recently prepared balance sheet in accordance with GAAP exceeding 10% of the total assets of the Borrower and its Subsidiaries on a Consolidated basis (as recorded on the Borrower’s Consolidated balance sheet then most recently delivered to the Lenders hereunder).

Moody’s ” means Moody’s Investor Services, Inc., and its successors.

Multiemployer Plan ” means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is making or accruing an obligation to

 

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make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions.

Multiple Employer Plan ” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or any ERISA Affiliate and at least one Person other than the Loan Parties and the ERISA Affiliates or (b) was so maintained and in respect of which any Loan Party or any ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.

Non-Affected Lender ” has the meaning specified in Section 5.02(d).

Non-Defaulting Lender ” means, at any time, a Lender that is not a Defaulting Lender or a Potential Defaulting Lender.

Non-Guarantor Subsidiary ” means, at any time, a Subsidiary of the Guarantor that is not then a Guarantor Subsidiary.

Non-Recourse Assets ” means the Guarantor’s or any Material Guarantor Subsidiary’s (including the Borrower’s) proportion (determined on a consolidated basis in accordance with GAAP) of assets owned directly or indirectly by the Guarantor or any Material Guarantor Subsidiary (including the Borrower) which meet all of the following conditions: (a) the assets represent a specific Project, whether alone or in association with others, (b) debt for borrowed money is owed to one or more Non-Recourse Creditor(s), was incurred for the purpose of financing the costs of such Project and the recourse of such creditors in relation to such debt is limited to the assets of such Project (including equity interests and investments in any Non-Recourse Subsidiary), and (c) neither the Guarantor nor any Material Guarantor Subsidiary (including the Borrower) is liable or has issued a guarantee in respect of any such debt, other than any such debt or any such guarantee in respect of which the recourse thereunder is limited to the assets of such Project (including equity interests and investments in any Non-Recourse Subsidiary); provided that upon all such debt to all such creditors in respect of any such assets being repaid, such assets shall then cease to be Non-Recourse Assets.

Non-Recourse Creditor ” means an arm’s-length creditor whose recourse is limited to Non-Recourse Assets, to the exclusion of any and all other recourse, whether directly or indirectly, by way of guarantees or otherwise, against the Guarantor or any Material Guarantor Subsidiary (including the Borrower) in respect of such debt or liability referred to in the definition of Non-Recourse Assets except for non-recourse guarantees and/or non-recourse pledges which are limited in recourse to equity interests and investments in any Non-Recourse Subsidiary.

Non-Recourse Debt ” means debt incurred for the purpose of financing the costs of a specific Project and due or otherwise owing to a Non-Recourse Creditor.

Non-Recourse Subsidiary ” means a Subsidiary whose material assets are Non-Recourse Assets.

Notice ” has the meaning specified in Section 8.02(c).

 

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Notice of Borrowing ” has the meaning specified in Section 2.02(a).

Notice of Issuance ” has the meaning specified in Section 2.04(a).

Notice of Swing Line Borrowing ” has the meaning specified in Section 2.03(a).

Original Credit Agreement ” has the meaning specified in the preliminary statements to this Agreement.

Other Taxes ” has the meaning specified in Section 2.15(b).

Parent Company ” means, with respect to a Lender, the bank holding company (as defined in Federal Reserve Board Regulation Y), if any, of such Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a majority of the shares of such Lender.

Participant ” has the meaning assigned to such term in clause (d) of Section 8.07.

Patriot Act ” has the meaning assigned to such term in Section 4.01(k).

PBGC ” means the Pension Benefit Guaranty Corporation (or any successor).

Person ” means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture, limited liability company or other entity, or a government or any political subdivision or agency thereof.

Plan ” means a Single Employer Plan or a Multiple Employer Plan, in each case that is subject to ERISA.

Platform ” has the meaning specified in Section 8.02(b).

Potential Defaulting Lender ” means, at any time, a Lender (i) as to which the Administrative Agent has notified the Borrower that an event of the kind referred to in the definition of “Lender Insolvency Event” has occurred and is continuing in respect of any Subsidiary of such Lender, (ii) as to which the Administrative Agent, the Issuing Bank or the Swing Line Bank has in good faith determined and notified the Borrower and (in the case of the Issuing Bank or the Swing Line Bank) the Administrative Agent that such Lender or its Parent Company or a Subsidiary thereof has notified the Administrative Agent, or has stated publicly, that it will not comply with its funding obligations under any other loan agreement or credit agreement or other similar/other financing agreement or (iii) that has, or whose Parent Company has, a non-investment grade rating from Moody’s or S&P or another nationally recognized rating agency. Any determination that a Lender is a Potential Defaulting Lender under any of clauses (i) through (iii) above will be made by the Administrative Agent or, in the case of clause (ii), the Issuing Bank or the Swing Line Bank, as the case may be, in its sole discretion acting in good faith. The Administrative Agent will promptly send to all parties hereto a copy of any notice to the Borrower provided for in this definition.

Pro Rata Share ” of any amount means, with respect to any Lender at any time, the product of such amount times a fraction, the numerator of which is the amount of such Lender’s Revolving Credit Commitment at such time and the denominator of which is the aggregate of the

 

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Revolving Credit Commitments of all Lenders at such time. Any termination or cancellation of a Lender’s Revolving Commitment pursuant to an exercise of remedies under Article VI shall not operate to reduce such Lender’s Revolving Credit Commitment for purposes of this definition.

Project ” means the acquisition, construction and development of previously undeveloped or newly acquired assets forming an economic unit capable of generating sufficient cash flow, on the basis of reasonable initial assumptions, to cover the operating costs and debt service required to finance the undertaking relating to such assets over a period of time which is less than the projected economic life of the assets, and includes any commercial operation for which such assets were so acquired, constructed or developed and which is subsequently carried on with such assets by such economic unit and, for certainty, includes each such Project which exists as of the date of this Agreement or which is acquired, created or comes into existence after such date.

Public Material Subsidiary ” means any Material Guarantor Subsidiary that has had Publicly Traded Securities at all times since such Material Guarantor Subsidiary first became a Material Guarantor Subsidiary.

Publicly Traded Securities ” means (a) securities of a corporation which are listed on any stock exchange and are entitled to share without limitation in a distribution of the assets of such corporation upon any liquidation, dissolution or winding-up of such corporation and includes any securities convertible or exchangeable into such securities; and (b) with respect to a partnership, limited liability company or other entity, means securities of such partnership, limited liability company or other entity which are listed on any stock exchange and represent income interests or capital interests in such partnership, limited liability company or other entity and includes any securities convertible or exchangeable into such securities.

Purchase Money Mortgage ” means any mortgage, hypothecation, charge or other encumbrance on property or assets created, issued or assumed to secure a Purchase Money Obligation in respect of such property or assets and also means any agreement or other instrument entered into for the acquisition of or right to acquire any property or assets or any interest therein in which agreement or instrument there is reserved or which obligates the Borrower or a Restricted Subsidiary to pay a royalty, rent or percentage of profits or proceeds won from such property or assets and which charges or secures such property or assets or interest therein or the lands containing the same with the payment thereof and includes any extension, renewal, refunding or refinancing thereof so long as the principal amount outstanding immediately prior to the date of such extension, renewal, refunding or refinancing is not increased; provided that such mortgage, hypothecation, charge, encumbrance, agreement or other instrument is created, issued or assumed prior to, concurrently with or within 180 days following the acquisition of such property or assets, except in the case of property or assets on which improvements are constructed, installed or added, in which case the same shall be created or issued within a period of 180 days after Substantial Completion of such improvements.

Purchase Money Obligation ” means any Indebtedness assumed as, or issued and incurred to provide funds to pay, all or part of (a) the purchase price (which shall be deemed to include any costs of construction or installation) of any property or assets acquired after the date

 

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of this Agreement or (b) the cost of improvements made after the date of this Agreement to any property or assets.

Reference Banks ” means Bank of America, N.A., The Royal Bank of Scotland N.V., (Canada) Branch, Citibank, Barclays Bank, JPMorgan and up to two other Lenders as shall be agreed from time to time by the Borrower and each of the Lenders.

Register ” has the meaning specified in Section 8.07(c).

Related Parties ” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.

Release ” means a releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, disposing, spraying, abandonment, depositing, seeping, placing or dumping.

Requested Lender ” has the meaning specified in Section 8.11(a).

Requested RCC Increase ” has the meaning specified in Section 2.19(a).

Required Lenders ” means at any time Lenders owed in excess of 50% of the then aggregate unpaid principal amount of the Revolving Credit Advances owing to Lenders, or, if no such principal amount is then outstanding, Lenders having in excess of 50% of the Revolving Credit Commitments; provided that if any Lender shall be a Defaulting Lender at such time, there shall be excluded from the determination of Required Lenders at such time the Revolving Credit Commitments of such Lender at such time.

Restricted Property ” means any oil, gas or mineral property of a primary nature located in Canada or the United States and any facilities located in Canada or the United States directly related to the mining, processing or manufacture of hydrocarbons or minerals, or any of the constituents thereof or the derivatives therefrom and includes Voting Shares or other interests of a corporation or other Person which owns such property or facilities, but does not include (a) any property or facilities used in connection with or necessarily incidental to the purchase, sale, storage, transportation or distribution of Restricted Property, (b) any property which, in the opinion of the Board of Directors of the Guarantor, is not materially important to the total business conducted by the Guarantor and its Subsidiaries as an entirety, or (c) any portion of a particular property which, in the opinion of the Board of Directors of the Guarantor, is not materially important to the use or operation of such property.

Restricted Subsidiary ” means a Subsidiary of the Borrower which owns at the time Restricted Property; provided , however , such term shall not include any Subsidiary whose Consolidated Net Tangible Assets do not at such time exceed 2% of the Consolidated Net Tangible Assets of the Guarantor at such time.

Revolving Credit Advance ” has the meaning specified in Section 2.01(a).

Revolving Credit Commitment ” means, with respect to any Lender at any time, the amount set forth opposite such Lender’s name on Schedule I hereto under the caption ‘Revolving

 

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Credit Commitment’ or, if such Lender has entered into one or more Assignments and Assumptions, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 8.07(c) as such Lender’s ‘Revolving Credit Commitment’, as such amount may be reduced or increased at or prior to such time pursuant to Section 2.06 or Section 2.19.

Section 2.19 Effective Date ” has the meaning specified in the Section 2.19(d).

S&P ” means Standard & Poor’s Ratings Group, a Standard & Poor’s Financial Services LLC company, and its successors.

Senior Financial Officer ” means the Borrower’s chief financial officer, Vice-President, Finance, Comptroller, Assistant Comptroller, Treasurer or Assistant Treasurer or any other officer of the Borrower having a similar title or position.

Single Employer Plan ” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or any ERISA Affiliate and no Person other than the Loan Parties and the ERISA Affiliates or (b) was so maintained and in respect of which any Loan Party or any ERISA Affiliate could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.

Standby Letter of Credit ” means any Letter of Credit issued hereunder, other than a Trade Letter of Credit or a Direct Pay Letter of Credit.

Subsidiary ” of any Person means: (a) any corporation of which Voting Shares issued by such corporation and carrying more than 50% of the voting rights attached to all outstanding Voting Shares issued by such corporation are owned, directly or indirectly, by or for such Person and/or by or for any corporation in like relation to such Person and includes any corporation in like relation to a Subsidiary; provided , however , that such term shall not include any corporation (or its subsidiaries) which has had Publicly Traded Securities at all times since it first would otherwise have become a Subsidiary; and (b) any partnership, limited liability company or other business entity of which at least a majority of the outstanding income interest or capital interests are at the time directly, indirectly or beneficially owned or controlled by such Person or one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries; provided , however , that such term shall not include any partnership, limited liability company or other business entity (or its subsidiaries) which has had Publicly Traded Securities at all times since it first would otherwise have become a Subsidiary.

Substantial Completion ” means, with respect to an improvement, the point at which the improvement is ready for use or is being used for the purpose for which it was intended.

Successor ” has the meaning specified in Section 5.02(a).

Swing Line Advance ” means an advance made by (a) the Swing Line Bank pursuant to Section 2.01(c) or (b) any Lender pursuant to Section 2.03(a).

Swing Line Bank ” has the meaning specified in the recital of parties to this Agreement.

Swing Line Borrowing ” means a borrowing consisting of a Swing Line Advance made by the Swing Line Bank pursuant to Section 2.01(c) or the Lenders pursuant to Section 2.03(a).

 

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Swing Line Sub-Commitment ” means, with respect to any Lender at any time, the amount set forth opposite such Lender’s name on Schedule I hereto under the caption ‘Swing Line Sub-Commitment’ or, if such Lender has entered into one or more Assignments and Assumptions, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 8.07(c) as such Lender’s ‘Swing Line Sub-Commitment’, as such amount may be reduced at or prior to such time pursuant to Section 2.06.

Syndication Agents ” has the meaning specified in the recital of parties to this Agreement.

Take-over ” has the meaning specified in Section 5.02(d).

Target ” has the meaning specified in Section 5.02(d).

Taxes ” has the meaning specified in Section 2.15(a).

Termination Date ” means October 31, 2015, or, if extended pursuant to Section 8.11, the Extended Termination Date or, in any case, if earlier, the date of termination in whole of the Commitments pursuant to Section 2.06 or 6.01.

Trade Letter of Credit ” means any Letter of Credit that is issued for the benefit of a supplier of inventory to the Borrower or any of its Subsidiaries to effect payment for such inventory.

Type ” refers to the distinction between Advances bearing interest at the Base Rate and Advances bearing interest at the Eurodollar Rate.

Unused Commitment ” means, with respect to each Lender at any time, (a) such Lender’s Revolving Credit Commitment at such time minus (b) the sum of (i) the aggregate principal amount of all Advances made by such Lender (in its capacity as a Lender) and outstanding at such time, plus (ii) such Lender’s Pro Rata Share of (A) the aggregate Available Amount of all the Letters of Credit outstanding at such time, (B) the aggregate principal amount of all Letter of Credit Advances made by each Issuing Bank pursuant to Section 2.04(c) that have not been ratably funded by such Lender and outstanding at such time and (C) the aggregate principal amount of all Swing Line Advances then outstanding, in each case after giving effect to any adjustments made in accordance with Section 2.21(a).

Value ” means:

 

  (a) 150% of the face value of United States Dollar funds or debt instruments of the United States Government maturing within 12 months; and

 

  (b) in respect of any other assets of the Borrower, the fair market value of such assets as determined by the board of directors of the Borrower.

Voting Shares ” means shares of any class of any corporation carrying voting rights under all circumstances, provided that, for the purposes of this definition, shares which only carry the right to vote conditionally on the happening of an event shall not be considered Voting Shares, nor shall any shares be deemed to cease to be Voting Shares solely by reason of a right to

 

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vote accruing to shares of another class or classes by reason of the happening of such an event, or solely because the right to vote may not be exercisable under the charter of the corporation.

Wholly-Owned Subsidiary ” means (a) any corporation of which 100% of the outstanding shares having by the terms thereof ordinary voting power to vote with respect to the election of the board of directors of such corporation (irrespective of whether at the time shares of any other class or classes of such corporation might have voting power by reason of the happening of any contingency, unless the contingency has occurred and then only for so long as it continues) is at the time directly, indirectly or beneficially owned or controlled by the Guarantor or one or more of its Wholly-Owned Subsidiaries or by the Guarantor and one or more of its Wholly-Owned Subsidiaries, or (b) any partnership of which 100% of the outstanding income interests and capital interests is at the time directly, indirectly or beneficially owned or controlled by the Guarantor or one or more of its Wholly-Owned Subsidiaries or by the Guarantor and one or more of its Wholly-Owned Subsidiaries.

Withdrawal Liability ” has the meaning specified in Part I of Subtitle E of Title IV of ERISA.

SECTION 1.02.  Computation of Time Periods . In this Agreement in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”.

SECTION 1.03.  Accounting Principles . Where the character or amount of any asset or liability or item of revenue or expense or amount of equity is required to be determined, or any consolidation or other accounting computation is required to be made for the purpose of this Agreement or any other document related hereto, such determination or calculation shall to the extent applicable and except as otherwise specified herein or as otherwise in writing by the parties, be made in accordance with GAAP applied on a consistent basis; provided that

(a) if (i) there is any change in GAAP from such principles applied in the preparation of the audited financial statements referred to in Section 4.01(e), that is material in respect of the calculation of any financial term set forth in this Agreement (the “ Financial Terms ”), or (ii) the Borrower adopts a material change in an accounting policy in order to more appropriately present events or transactions in its financial statements, the Borrower shall give prompt notice (the “ Accounting Change Notice ”) of such change to the Administrative Agent and the Lenders (any change described in clause (i) or (ii), an “ Accounting Change ”);

(b) if the Borrower notifies the Administrative Agent that the Borrower requests an amendment of any provision hereof to eliminate the effect of such Accounting Change (or if, within 45 days of receipt of an Accounting Change Notice, the Administrative Agent or the Required Lenders request an amendment of any provision hereof for such purpose), then the Borrower, the Administrative Agent and the Required Lenders shall in good faith attempt to agree on a revised method of calculating such Financial Terms so as to reflect equitably such Accounting Change with the desired result that the result of the evaluation of the Borrower’s financial condition shall be substantially the same after such Accounting Change as if such Accounting Change had not been made; provided that such provision shall be applied on the basis of generally accepted accounting principles as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision is amended in accordance herewith; and

 

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(c) for the avoidance of doubt, if no notice of a desire to revise the method of calculating the Financial Terms in respect of an Accounting Change is given by either the Borrower, the Administrative Agent or the Required Lenders within the applicable time period described in clause (ii) above, then the method of calculating the Financial Terms shall not be revised in response to such Accounting Change and all amounts to be determined pursuant to the Financial Terms shall be determined after giving effect to such Accounting Change.

(d) If a Compliance Certificate is delivered in respect of a Fiscal Quarter or Fiscal Year in which an Accounting Change is implemented without giving effect to any revised method of calculating any of the Financial Terms, and subsequently, as provided above, the method of calculating one or more of the Financial Terms is revised in response to such Accounting Change, the Borrower shall deliver a revised Compliance Certificate. Any Event of Default which arises as a result of the Accounting Change and which is cured by this Section 1.03 shall be deemed to have never occurred.

ARTICLE II

AMOUNTS AND TERMS OF THE ADVANCES

SECTION 2.01.  The Advances . (a)  The Revolving Credit Advances . Each Lender severally agrees, on the terms and conditions hereinafter set forth, to make advances (the “ Revolving Credit Advances ”) to the Borrower from time to time on any Business Day during the period from the Effective Date until the Termination Date in an aggregate amount not to exceed such Lender’s Unused Commitment at such time. Each Borrowing shall be in a minimum aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and shall consist of Revolving Credit Advances of the same Type made on the same day by the Lenders ratably according to their respective Revolving Credit Commitments. Within the limits set forth in this Section 2.01(a), the Borrower may borrow under this Section 2.01(a), prepay pursuant to Section 2.11 and reborrow under this Section 2.01(a).

(b) Letters of Credit . Each Issuing Bank severally agrees, on the terms and conditions hereinafter set forth, to issue letters of credit (the “ Letters of Credit ”) for the account of the Borrower from time to time on any Business Day during the period from the date hereof until 60 days before the Termination Date in an aggregate Available Amount (i) for all Letters of Credit issued by such Issuing Bank not to exceed at any time outstanding such Issuing Bank’s Letter of Credit Sub-Commitment at such time minus the aggregate principal amount of all Letter of Credit Advances relating to Letters of Credit issued by such Issuing Bank outstanding at such time and (ii) for any Letter of Credit not to exceed the aggregate Unused Commitments at such time. No Letter of Credit shall have an expiration date later than 60 days before the Termination Date. Within the limits set forth in this Section 2.01(b), the Borrower may request the issuance of Letters of Credit under this Section 2.01(b), repay any Letter of Credit Advances resulting from drawings thereunder pursuant to Section 2.04(c) and request the issuance of additional Letters of Credit under this Section 2.01(b). The Borrower may request the issuance of Direct Pay Letters of Credit and Standby Letters of Credit.

(c) The Swing Line Advances . The Borrower may request the Swing Line Bank to make, and the Swing Line Bank may, if in its sole discretion it elects to do so, make, on the terms and conditions hereinafter set forth, Swing Line Advances to the Borrower from time to time on any Business Day during the period from the Effective Date until the Termination Date (i) in an aggregate

 

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amount not to exceed at any time outstanding $25,000,000 and (ii) in an amount for each such Swing Line Borrowing not to exceed $25,000,000; provided , however , that the Swing Line Bank shall not make a Swing Line Advance hereunder in an amount in excess of the aggregate Unused Commitments at such time. No Swing Line Advance shall be used for the purpose of funding the payment of principal of any other Swing Line Advance. Each Swing Line Borrowing shall be in an amount of $1,000,000 or an integral multiple of $500,000 in excess thereof and shall be made as a Base Rate Advance. Within the limits of this Section 2.01(c), so long as the Swing Line Bank, in its sole discretion, elects to make Swing Line Advances, the Borrower may borrow under this Section 2.01(c), repay pursuant to Section 2.07(c) or prepay pursuant to Section 2.11 and reborrow under this Section 2.01(c).

SECTION 2.02.  Making the Revolving Credit Advances . (a) Except in the case of a Borrowing for which the conditions precedent set forth in Section 3.02(b) must be satisfied, each Borrowing shall be made on notice, given not later than 12:00 noon (New York City time) (x) on the third Business Day prior to the date of the proposed Borrowing in the case of a Borrowing consisting of Eurodollar Rate Advances, or (y) on the date of the proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances, by the Borrower to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier. Each such notice of a Borrowing (together with each notice of a Borrowing described in the next succeeding sentence of this Section 2.02(a), a “ Notice of Borrowing ”) shall be by telephone, confirmed immediately in writing, or telecopier in substantially the form of Exhibit B-1 hereto or, with respect to any such notice delivered prior to the date hereof, in substantially the form of Exhibit B-2 hereto, specifying therein the requested (i) date of such Borrowing, (ii) Type of Revolving Credit Advances comprising such Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the case of a Borrowing consisting of Eurodollar Rate Advances, initial Interest Period for each such Revolving Credit Advance. In the case of a Borrowing for which the conditions precedent set forth in Section 3.02(b) must be satisfied, (A) such Borrowing shall be made on notice, given not later than 12:00 noon (New York City time) on the seventh Business Day prior to the date of the proposed Borrowing, whether such Borrowing is to consist of Eurodollar Rate Advances or Base Rate Advances, by the Borrower to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier or telex, and (B) the Notice of Borrowing relating to such Borrowing shall contain a request for a waiver setting forth specifically the Default or event which, but for the application of the last sentence of Section 6.01, would be such a Default that is requested to be waived by the Required Lenders, or by each of the Lenders, as set forth in Section 3.02(b). Each Lender shall, before 12:00 noon (New York City time) on the date of such Borrowing (in the case of a Borrowing consisting of Eurodollar Rate Advances), and before 2:00 P.M. (New York City time) on the date of such Borrowing (in the case of a Borrowing consisting of Base Rate Advances), make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent’s Account, in same day funds, such Lender’s ratable portion of such Borrowing. After the Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower at the Administrative Agent’s address referred to in Section 8.02 or at an account designated by the Borrower to the Administrative Agent in such Notice of Borrowing; provided , however , that (x) the Administrative Agent shall first make a portion of such funds equal to the aggregate principal amount of any Letter of Credit Advances outstanding on the date of such Borrowing, plus interest accrued and unpaid thereon and fees and other amounts due and payable in respect of such Letter of Credit Advances to and as of such date, available to the appropriate Issuing Bank and/or other Lenders for repayment of such Letter of Credit Advances and (y) the Administrative Agent shall next make a portion of such funds equal to the aggregate principal amount of any Swing Line Advances outstanding on the date of such Borrowing, plus interest

 

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accrued and unpaid thereon, available to the Swing Line Bank and/or other Lenders for repayment of such Swing Line Advances.

(b) Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for any Borrowing if the obligation of the Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to Section 2.09 or 2.13, and (ii) the Eurodollar Rate Advances may not be outstanding as part of more than twenty separate Borrowings.

(c) Each Notice of Borrowing shall be irrevocable and binding on the Borrower. In the case of any Borrowing that the related Notice of Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Revolving Credit Advance to be made by such Lender as part of such Borrowing when such Revolving Credit Advance, as a result of such failure, is not made on such date.

(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any Borrowing comprised of Eurodollar Rate Advances or prior to 1:00 P.M. (New York City time) on the date of the proposed disbursement of any Borrowing comprised of Base Rate Advances that such Lender will not make available to the Administrative Agent such Lender’s ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent such Lender shall not have so made such ratable portion of any Borrowing available to the Administrative Agent, such Lender agrees to pay to the Administrative Agent on demand such Lender’s ratable portion of such Borrowing and all reasonable costs and expenses incurred by the Administrative Agent in connection therewith together with interest thereon at the Federal Funds Rate for each day from the date such amount is made available to the Borrower until the date such amount is paid to the Administrative Agent; provided , however , that notwithstanding such obligation if such Lender fails to so pay, the Borrower covenants and agrees that, without prejudice to any rights the Borrower may have against such Lender, the Borrower shall repay to the Administrative Agent upon demand therefor by the Administrative Agent such Lender’s ratable portion of such Borrowing and all reasonable costs and expenses incurred by the Administrative Agent in connection therewith together with interest thereon at the Base Rate in the case of a Base Rate Advance and the Eurodollar Rate in the case of a Eurodollar Rate Advance, plus the Applicable Margin with respect thereto, for each day from the date such amount is made available to the Borrower until such amount is repaid to the Administrative Agent. The amount payable to the Administrative Agent hereunder shall be set forth in a certificate delivered by the Administrative Agent to such Lender and the Borrower (which certificate shall contain reasonable details concerning the calculation of the amount payable) and shall be prima facie evidence thereof, in the absence of manifest error. If such Lender shall repay to the Administrative Agent such amount, such amount so repaid shall constitute such Lender’s Revolving Credit Advance as part of such Borrowing for purposes of this Agreement.

(e) The failure of any Lender to make the Revolving Credit Advance to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make

 

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its Revolving Credit Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Revolving Credit Advance to be made by such other Lender on the date of any Borrowing.

SECTION 2.03.  Making the Swing Line Advances  (a) Each Swing Line Borrowing shall be made on notice, given not later than 12:00 noon (New York City time) on the Business Day of the proposed Swing Line Borrowing, by the Borrower to the Swing Line Bank and the Administrative Agent. Each such notice of a Swing Line Borrowing (a “ Notice of Swing Line Borrowing ”) shall be by telephone, confirmed immediately in writing, or telecopier, specifying therein the requested (i) date of such Borrowing, (ii) amount of such Borrowing and (iii) maturity of such Borrowing (which maturity shall be no later than the seventh day after the requested date of such Borrowing). If, in its sole discretion, it elects to make the requested Swing Line Advance, the Swing Line Bank will make the amount thereof available to the Administrative Agent at the Administrative Agent’s Account, in same day funds. After the Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower at the Administrative Agent’s address referred to in Section 8.02 or at an account designated by the Borrower to the Administrative Agent in such Notice of Borrowing. Upon written demand by the Swing Line Bank, with a copy of such demand to the Administrative Agent, each other Lender shall purchase from the Swing Line Bank, and the Swing Line Bank shall sell and assign to each such other Lender, such other Lender’s Pro Rata Share of such outstanding Swing Line Advance as of the date of such demand up to the amount of such Lender’s Swing Line Sub-Commitment, by making available for the account of its Applicable Lending Office to the Administrative Agent for the account of the Swing Line Bank, by deposit to the Administrative Agent’s Account, in same day funds, an amount equal to the portion of the outstanding principal amount of such Swing Line Advance to be purchased by such Lender. The Borrower hereby agrees to each such sale and assignment. Each Lender agrees to purchase its Pro Rata Share of an outstanding Swing Line Advance on (i) the Business Day on which demand therefor is made by the Swing Line Bank, provided that notice of such demand is given not later than 12:00 noon (New York City time) on such Business Day or (ii) the first Business Day next succeeding such demand if notice of such demand is given after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a portion of a Swing Line Advance, the Swing Line Bank represents and warrants to such other Lender that the Swing Line Bank is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance, the Loan Documents or any Loan Party. If and to the extent that any Lender shall not have so made the amount of such Swing Line Advance available to the Administrative Agent, such Lender agrees to pay to the Administrative Agent forthwith on demand such amount together with interest thereon, for each day from the date of demand by the Swing Line Bank until the date such amount is paid to the Administrative Agent, at the Federal Funds Rate. If such Lender shall pay to the Administrative Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Swing Line Advance made by such Lender on such Business Day for purposes of this Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day.

(b) Each Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower.

SECTION 2.04. Issuance of and Drawings and Reimbursement Under Letters of Credit . (a)  Request for Issuance . Except in the case of a Letter of Credit issuance for which the conditions

 

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precedent set forth in Section 3.02(b) must be satisfied, each Letter of Credit shall be issued upon notice, given not later than 12:00 noon (New York City time) on the third Business Day, except in the case of an initial issuance that occurs less than three Business Days after the date hereof, in which case such notice may be given not later than 12:00 noon (New York City time) on the second Business Day, prior to the date of the proposed issuance of such Letter of Credit, by the Borrower to any Issuing Bank and the Administrative Agent, which shall give to each Lender prompt notice thereof. Each such notice of issuance of a Letter of Credit (together with each notice of issuance described in the next succeeding sentence of this Section 2.04(a), a “ Notice of Issuance ”) shall be in writing, or telecopier, specifying therein the requested (i) date of such issuance (which shall be a Business Day), (ii) Available Amount of such Letter of Credit, (iii) expiration date of such Letter of Credit, (iv) name and address of the beneficiary of such Letter of Credit and (v) form of such Letter of Credit, and shall be accompanied by such application and agreement for letter of credit as such Issuing Bank may specify to the Borrower for use in connection with such requested Letter of Credit (a “ Letter of Credit Agreement ”). In the case of a Letter of Credit issuance for which the conditions precedent set forth in Section 3.02(b) must be satisfied, (A) such Letter of Credit shall be issued upon notice, given not later than 12:00 noon (New York City time) on the seventh Business Day prior to the date of the proposed issuance of such Letter of Credit, by the Borrower to any Issuing Bank and the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier, and (B) the Notice of Issuance relating to such Letter of Credit issuance shall contain a request for a waiver setting forth specifically the Default or event which, but for the application of the last sentence of Section 6.01, would be such a Default that is requested to be waived by the Required Lenders, or by each of the Lenders, as set forth in Section 3.02(b). If (I) the requested form of such Letter of Credit is acceptable to such Issuing Bank in its sole and reasonable discretion, and (II) such Issuing Bank has received notice from the Administrative Agent that the Issuing Bank may issue such Letter of Credit (which notice shall be sent by the Administrative Agent to the Issuing Bank if the applicable conditions set forth in Article II and III have been fulfilled and the Administrative Agent has not received any notice of objection to such issuance from the Required Lenders), then such Issuing Bank will make such Letter of Credit available to the Borrower at its office referred to in Section 8.02 or as otherwise agreed with the Borrower in connection with such issuance. In the event and to the extent that the provisions of any Letter of Credit Agreement shall conflict with this Agreement, the provisions of this Agreement shall govern.

(b) Letter of Credit Reports . Each Issuing Bank shall furnish to the Administrative Agent on the first Business Day of each week a written report summarizing the issuance date, Available Amount and expiration date with respect to each Letter of Credit issued by such Issuing Bank during the previous week.

(c) Drawing and Reimbursement . The payment by any Issuing Bank of a draft drawn under any Letter of Credit shall constitute for all purposes of this Agreement the making by such Issuing Bank of a Letter of Credit Advance, which shall be a Base Rate Advance, in the amount of such draft. Upon written demand by any Issuing Bank with an outstanding Letter of Credit Advance, with a copy of such demand to the Administrative Agent, each Lender shall purchase from such Issuing Bank, and such Issuing Bank shall sell and assign to each such Lender, such Lender’s Pro Rata Share of such outstanding Letter of Credit Advance as of the date of such purchase, by making available for the account of its Applicable Lending Office to the Administrative Agent for the account of such Issuing Bank, by deposit to the Administrative Agent’s Account, in same day funds, an amount equal to the portion of the outstanding principal amount of such Letter of Credit Advance to be purchased by such Lender. Promptly after receipt thereof, the Administrative Agent shall transfer such funds to such Issuing Bank. The Borrower hereby agrees to each such sale and assignment. Each Lender agrees to

 

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purchase its Pro Rata Share of an outstanding Letter of Credit Advance on (i) the Business Day on which demand therefor is made by the Issuing Bank which made such Advance, provided notice of such demand is given not later than 12:00 noon (New York City time) on such Business Day or (ii) the first Business Day next succeeding such demand if notice of such demand is given after such time. Upon any such assignment by an Issuing Bank to any other Lender of a portion of a Letter of Credit Advance, such Issuing Bank represents and warrants to such other Lender that such Issuing Bank is the legal and beneficial owner of such interest being assigned by it, free and clear of any liens, but makes no other representation or warranty and assumes no responsibility with respect to such Letter of Credit Advance, the Loan Documents or any Loan Party. If and to the extent that any Lender shall not have so made the amount of such Letter of Credit Advance available to the Administrative Agent, such Lender agrees to pay to the Administrative Agent forthwith on demand such amount together with interest thereon, for each day from the date of demand by such Issuing Bank until the date such amount is paid to the Administrative Agent, at the Federal Funds Rate for its account or the account of such Issuing Bank, as applicable. If such Lender shall pay to the Administrative Agent such amount for the account of such Issuing Bank on any Business Day, such amount so paid in respect of principal shall constitute a Letter of Credit Advance made by such Lender on such Business Day for purposes of this Agreement, and the outstanding principal amount of the Letter of Credit Advance made by such Issuing Bank shall be reduced by such amount on such Business Day.

(d) Letter of Credit Reports . Each Issuing Bank shall furnish (A) to the Administrative Agent and each Lender (with a copy to the Borrower ) on the last Business Day of each month a written report summarizing issuance and expiration dates of Letters of Credit issued by such Issuing Bank during the month then ended and drawings during such month under all Letters of Credit and (B) to the Administrative Agent and each Lender (with a copy to the Borrower) on the last Business Day of each calendar quarter a written report setting forth the average daily aggregate Available Amount during the calendar quarter then ended of all Letters of Credit issued by such Issuing Bank.

(e) Failure to Make Letter of Credit Advances . The failure of any Lender to make the Letter of Credit Advance to be made by it on the date specified in Section 2.04(c) shall not relieve any other Lender of its obligation hereunder to make its Letter of Credit Advance on such date, but no Lender shall be responsible for the failure of any other Lender to make the Letter of Credit Advance to be made by such other Lender on such date.

SECTION 2.05.  Fees . (a)  Commitment Fees . The Borrower shall pay to the Administrative Agent for the account of each Lender a commitment fee on the average daily amount of such Lender’s Revolving Credit Commitment, minus the aggregate of (i) the average daily outstanding principal amount of such Lender’s Revolving Credit Advances and Swing Line Advances and (ii) such Lender’s Pro Rata Share of the average daily outstanding Available Amount of all Letters of Credit, from the Effective Date in the case of each Initial Lender and from the effective date specified in the Assignment and Assumption or amendment to this Agreement, as the case may be, pursuant to which it became a Lender in the case of each other Lender until the Termination Date at a rate per annum equal to the Applicable Percentage in effect from time to time, payable in arrears quarterly on the final Business Day of each March, June, September and December, in respect of the calendar quarter ending on the final day of such March, June, September or December, as the case may be, commencing December 31, 2011, and on the Termination Date; provided that no Defaulting Lender shall be entitled to receive any Commitment Fee for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay such fee that otherwise would have been required to have been paid to that Defaulting Lender).

 

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(b) Letter of Credit Fees .

(i) The Borrower shall pay (A) to the Administrative Agent for the account of an Issuing Bank an issuance fee of 0.10% of the Available Amount for each Letter of Credit issued by such Issuing Bank, payable on the date on which such Letter of Credit shall be issued by such Issuing Bank and (B) to such Issuing Bank, such other commissions, transfer fees and other fees and charges in connection with the issuance or administration of each Letter of Credit issued by such Issuing Bank as the Borrower and such Issuing Bank shall agree, payable from time to time as agreed between the Borrower and such Issuing Bank;

(ii) The Borrower shall pay to the Administrative Agent for the account of each Lender an issuance fee on the average daily outstanding Available Amount of all Letters of Credit, from the Effective Date in the case of each Initial Lender and from the effective date specified in the Assignment and Assumption or amendment to this Agreement, as the case may be, pursuant to which it became a Lender in the case of each other Lender until the later of the Termination Date and the date on which all obligations of the Issuing Banks under this Agreement under all Letters of Credit terminate, at a rate per annum equal to the Applicable Fee Rate for the Letters of Credit, in effect from time to time, and payable in arrears quarterly on the final Business Day of each March, June, September and December, in respect of the calendar quarter ending on the final day of such March, June, September or December, as the case may be, commencing December 31, 2011, and on the Termination Date and, if later, the date on which all obligations of the Issuing Banks under this Agreement under all Letters of Credit terminate.

(c) Administrative Agent’s Fees . The Borrower shall pay to the Administrative Agent for its own account such fees as may from time to time be agreed in writing between the Borrower and the Administrative Agent.

SECTION 2.06.  Termination or Reduction of the Commitments . (a) The Borrower shall have the right, upon at least two (2) Business Days’ notice to the Administrative Agent, to terminate in whole or reduce ratably in part the unused portions of the Revolving Credit Commitments or the Swing Line Sub-Commitments of the Lenders or the Letter of Credit Sub-Commitments of the Issuing Banks, provided that each partial reduction shall be in the aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof. In the event that the Letter of Credit Sub-Commitments or the Swing Line Sub-Commitments at any time exceed the Revolving Credit Commitments, the Letter of Credit Sub-Commitments or the Swing Line Sub-Commitments, as the case may be, shall at such time automatically be reduced to an amount equal to the amount of the Revolving Credit Commitments. The Administrative Agent shall give each Lender and each Issuing Bank prompt notice of any such reduction of the Revolving Credit Commitments, the Swing Line Sub-Commitments and/or the Letter of Credit Sub-Commitments.

(b) The Borrower may terminate the Unused Commitment of a Defaulting Lender, and terminate a Defaulting Lender as Swing Line Bank or Issuing Bank upon not less than three Business Days’ prior notice to the Administrative Agent (which will promptly notify the Lenders thereof), provided , that such termination will not be deemed to be a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Bank, the Swing Line Bank or any Lender may have

 

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against such Defaulting Lender, including without limitation in respect of any breach of such Defaulting Lender of its obligations under this Agreement prior to such termination.

(c) If any Lender or Issuing Bank makes demand for any amounts under Section 2.12 or asserts a claim under Section 2.13, or the Borrower becomes obligated to pay additional amounts to such Lender under Section 2.15, and such Lender is unable to designate a different Applicable Lending Office as provided in Section 2.17(a), then the Borrower may (i) designate another bank that is an Eligible Assignee to replace such Lender or Issuing Bank in accordance with, and subject to the conditions and restrictions contained in, Section 2.17 or (ii) if there are no Letters of Credit and no Letter of Credit Advances then outstanding, (A) pay or prepay the aggregate principal amount of all Advances owing to such Lender, together with accrued interest thereon to the date of such prepayment, and all fees and other amounts due and payable to such Lender or Issuing Bank under any provision of this Agreement (including, but not limited to, any amounts owing under this Section 2.12 or Section 2.15 or 8.04(c)) as of the date of such payment or prepayment and (B) terminate in whole such Lender’s or Issuing Bank’s Commitment or Commitments (and if the total Letter of Credit Sub-Commitments of all remaining Issuing Banks would be greater than the total Revolving Credit Commitments of all remaining Lenders, reduce pro-rata the Letter of Credit Sub-Commitments of such remaining Issuing Banks to an aggregate amount equal to the total Revolving Credit Commitments of the remaining Lenders.

SECTION 2.07.  Repayment of Advances . (a)  Revolving Credit Advances . On the Termination Date, the Borrower shall repay to the Administrative Agent for the ratable account of the Lenders the aggregate principal amount of the Revolving Credit Advances outstanding on the Termination Date.

(b) Letter of Credit Advances . (i) The Borrower shall repay to the Administrative Agent for the account of each Issuing Bank and each other Lender that has made a Letter of Credit Advance on the first Business Day next succeeding the date on which such Letter of Credit Advance was made, the outstanding principal amount of such Letter of Credit Advance.

(ii) The obligations of the Borrower under this Agreement, any Letter of Credit Agreement and any other agreement or instrument relating to any Letter of Credit shall be unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement, such Letter of Credit Agreement and such other agreement or instrument under all circumstances, including, without limitation, the following circumstances (it being understood that any such payment by the Borrower is without prejudice to, and does not constitute a waiver of, any rights the Borrower might have or might acquire as a result of the payment by any Issuing Bank of any draft or the reimbursement by the Borrower thereof):

(A) any lack of validity or enforceability of any Loan Document, any Letter of Credit Agreement, any Letter of Credit or any other agreement or instrument relating thereto (all of the foregoing being, collectively, the “ L/C Related Documents ”);

(B) any change in the time, manner or place of payment of, or in any other term of, all or any of the obligations of the Borrower in respect of any L/C Related Document or any other amendment or waiver of or any consent to departure from all or any of the L/C Related Documents;

 

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(C) the existence of any claim, set-off, defense or other right that the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any Persons for whom any such beneficiary or any such transferee may be acting), any Issuing Bank or any other Person, whether in connection with the transactions contemplated by the L/C Related Documents or any unrelated transaction;

(D) any statement or any other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;

(E) payment by any Issuing Bank under a Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit;

(F) any release or amendment or waiver of or consent to departure from the Guaranty or any other guarantee, for all or any of the obligations of the Borrower in respect of the L/C Related Documents; or

(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including, without limitation, any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower or a guarantor.

(c) Swing Line Advances . The Borrower shall repay to the Administrative Agent for the account of the Swing Line Bank and each other Lender that has made a Swing Line Advance the outstanding principal amount of each Swing Line Advance made by each of them on the earlier of the maturity date specified in the applicable Notice of Swing Line Borrowing (which maturity shall be no later than the seventh day after the requested date of such Borrowing) and the Termination Date.

SECTION 2.08.  Interest . (a)  Scheduled Interest . The Borrower shall pay interest on the unpaid principal amount of each Advance owing to each Lender or Issuing Bank from the date of such Advance until such principal amount shall be paid in full, at the following rates per annum:

(i) Base Rate Advances . During such periods as such Advance is a Base Rate Advance, a rate per annum equal at all times to the sum of (A) the Base Rate in effect from time to time plus (B) the Applicable Margin in effect from time to time, payable in arrears (1) in the case of a Revolving Credit Advance, quarterly on the final day of each March, June, September and December during such periods and on the date such Revolving Credit Advance shall be Converted or paid in full and (2) in the case of a Letter of Credit Advance, on demand and on the date such Letter of Credit Advance shall be paid in full.

(ii) Eurodollar Rate Advances . During such periods as such Advance is a Eurodollar Rate Advance, a rate per annum equal at all times during each Interest Period for such Advance to the sum of (A) the Eurodollar Rate for such Interest Period for such Advance, plus (B) the Applicable Margin in effect from time to time, payable in arrears on the final day of such Interest Period and, if such Interest Period has a duration of more than three

 

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months, on each day that occurs during such Interest Period every three months from the first day of such Interest Period and on the date such Eurodollar Rate Advance shall be Converted or paid in full.

(b) Default Interest . Upon the occurrence and during the continuance of an Event of Default under Section 6.01(a), the Borrower shall pay interest on (i) the unpaid principal amount of each Advance owing to each Lender, payable in arrears on the dates referred to in clause (a)(i) or (a)(ii) above, at a rate per annum equal at all times to 1% per annum above the rate per annum required to be paid on such Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest extent permitted by law, the amount of any interest, fee or other amount payable hereunder that is not paid when due, from the date such amount shall be due until such amount shall be paid in full, payable in arrears on the date such amount shall be paid in full and on demand, at a rate per annum equal at all times to 1% per annum above the rate per annum required to be paid on Base Rate Advances pursuant to clause (a)(i) above.

SECTION 2.09.  Interest Rate Determination . (a) The Administrative Agent shall give prompt notice to the Borrower and the Lenders of the applicable interest rate determined by the Administrative Agent for purposes of Section 2.08(a).

(b) If, with respect to any Eurodollar Rate Advances, the Required Lenders notify the Administrative Agent that the Eurodollar Rate for any Interest Period for such Advances will not adequately reflect the cost to such Required Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such Interest Period, the Administrative Agent shall forthwith so notify the Borrower and the Lenders, whereupon (i) each Eurodollar Rate Advance will automatically, on the final day of the then existing Interest Period therefor, Convert into a Base Rate Advance, and (ii) the obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended until the Administrative Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist.

(c) If the Borrower shall fail to select the duration of any Interest Period for any Eurodollar Rate Advances in accordance with the provisions contained in the definition of “Interest Period” in Section 1.01, the Administrative Agent will forthwith so notify the Borrower and the Lenders and such Advances will automatically, on the final day of the then existing Interest Period therefor, Convert into Base Rate Advances.

(d) On the date on which the aggregate unpaid principal amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than $1,000,000, such Advances shall automatically Convert into Base Rate Advances.

(e) Upon the occurrence and during the continuance of any Event of Default under Section 6.01(a), (i) each Eurodollar Rate Advance will automatically, on the final day of the then existing Interest Period therefor, Convert into a Base Rate Advance and (ii) the obligation of the Lenders to Convert Advances into Eurodollar Rate Advances shall be suspended.

SECTION 2.10.  Optional Conversion of Advances . The Borrower may on any Business Day, upon notice given to the Administrative Agent not later than 12:00 P.M. (New York City time) on the third Business Day prior to the date of the proposed Conversion and subject to the provisions of Sections 2.09 and 2.13, Convert the whole or any part of the Revolving Credit Advances of one Type comprising the same Borrowing made to the Borrower into Revolving Credit Advances of the other Type; provided , however , any Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made only on the final day of an Interest Period for such Eurodollar Rate Advances and any

 

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Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in an amount not less than $1,000,000 and no Conversion of any Advances shall result in more separate Borrowings than permitted under Section 2.02(b). Each such notice of a Conversion shall, within the restrictions specified above, specify (i) the date of such Conversion, (ii) the Revolving Credit Advances to be Converted and (iii) if such Conversion is into Eurodollar Rate Advances, the duration of the initial Interest Period for each such Advance. Each notice of Conversion shall be irrevocable and binding on the Borrower.

SECTION 2.11.  Optional Prepayments of Advances . The Borrower may, upon at least one Business Day’s notice to the Administrative Agent not later than 12:00 noon (New York City time) for Base Rate Advances, and upon at least two (2) Business Days’ notice to the Administrative Agent not later than 12:00 noon (New York City time) for Eurodollar Rate Advances, stating the proposed date and aggregate principal amount of the prepayment, and if such notice is given the Borrower shall, prepay the outstanding principal amount of the Revolving Credit Advances or Swing Line Advances, as the case may be, comprising part of the same Borrowing in whole or ratably in part, together with accrued interest to the date of such prepayment on the principal amount prepaid; provided , however , (a) each partial prepayment of (i) Revolving Credit Advances shall be in an aggregate principal amount of $1,000,000 or an integral multiple of $1,000,000 in excess thereof and (ii) Swing Line Advances shall be in an aggregate principal amount of $1,000,000 or an integral multiple of $500,000 in excess thereof and (b) in the event of any such prepayment of a Eurodollar Rate Advance, the Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant to Section 8.04(c).

SECTION 2.12.  Increased Costs . (a) If, due to either (i) the introduction of or any change in or in the interpretation of any law or regulation subsequent to the date hereof or (ii) the compliance with any written guideline or request from any central bank or other governmental authority (whether or not having the force of law), announced, issued, made or imposed subsequent to the date hereof, there shall be any increase in the cost to any Lender of agreeing to make or making, funding or maintaining Eurodollar Rate Advances or to any Issuing Bank of agreeing to issue or issuing or maintaining Letters of Credit (excluding for purposes of this Section 2.12 any such increased costs resulting from (i) Taxes or Other Taxes (as to which Section 2.15 shall govern) ,(ii) changes in the basis of taxation of overall net income or overall gross income (or the basis of taxation on capital, branch profits or franchises imposed in lieu of net or gross income taxes) by the United States or by the foreign jurisdiction or state under the laws of which such Lender or Issuing Bank is organized or has its Applicable Lending Office or any political subdivision thereof and (iii) FATCA), then the Borrower shall from time to time, upon demand by such Lender or Issuing Bank (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender or Issuing Bank additional amounts sufficient to compensate such Lender or Issuing Bank for such increased cost. A certificate as to the amount of such increased cost, submitted to the Borrower and the Administrative Agent by such Lender or Issuing Bank, shall be conclusive and binding for all purposes, absent manifest error; provided , however , that the Borrower shall not be obligated to pay to such Lender such amounts unless such Lender at such time shall be generally assessing such amounts on a non-discriminatory basis against borrowers under agreements having provisions similar to this paragraph.

(b) If any Lender Party acting reasonably determines that compliance with any law or regulation or any written guideline or request from any central bank or other governmental authority (whether or not having the force of law) affects or would affect the amount of capital required or expected to be maintained by such Lender Party or any corporation controlling such Lender Party and that the amount of such capital is increased by or based upon the existence of such Lender Party’s Revolving Credit Commitment, Swing Line Sub-Commitment or Letter of Credit Sub-Commitment or

 

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other commitments of such type or is increased by or, if applicable, based upon the issuance by such Issuing Bank of any Letter of Credit and other letters of credit of such type, then, upon demand by such Lender Party (with a copy of such demand to the Administrative Agent), the Borrower shall pay to the Administrative Agent for the account of such Lender Party, from time to time as specified by such Lender Party, additional amounts sufficient to compensate such Lender Party or such corporation in the light of such circumstances, to the extent that such Lender Party reasonably determines such increase in capital to be allocable to the existence of such Lender Party’s Revolving Credit Commitment, Swing Line Sub-Commitment or Letter of Credit Sub-Commitment or outstanding Letters of Credit; provided , however , that the Borrower shall not be obligated to pay to such Lender such amounts unless such Lender at such time shall be generally assessing such amounts on a non-discriminatory basis against borrowers under agreements having provisions similar to this paragraph. A certificate as to such amounts, submitted to the Borrower and the Administrative Agent by such Lender Party, shall be conclusive and binding for all purposes, absent manifest error in the calculation of such amounts.

(c) Failure or delay on the part of any Lender Party to demand compensation pursuant to this Section shall not constitute a waiver of such Lender Party’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender Party pursuant to this Section for any increased costs incurred or reductions suffered more than three months prior to the date that such Lender Party notifies the Borrower of the circumstances giving rise to such increased costs or reductions, and of such Lender Party’s intention to claim compensation therefor (except that, if the circumstance giving rise to such increased costs or reductions is retroactive, then the three-month period referred to above shall be extended to include the period of retroactive effect thereof).

(d) For the avoidance of doubt, this Section 2.12 shall apply to all requests, rules, guidelines or directives concerning capital adequacy (i) issued in connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act and (ii) promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued.

SECTION 2.13.  Illegality . Notwithstanding any other provision of this Agreement, if any Lender Party shall notify the Administrative Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or any central bank or other governmental authority asserts that it is unlawful, for any Lender Party or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, (a) each Eurodollar Rate Advance will automatically, upon such demand, Convert into a Base Rate Advance and (b) the obligation of the Lenders to make Eurodollar Rate Advances or to Convert Advances into Eurodollar Rate Advances shall be suspended until the Administrative Agent shall notify the Borrower and the Lender Parties that the circumstances causing such suspension no longer exist.

SECTION 2.14.  Payments and Computations . (a) The Borrower shall make each payment hereunder, irrespective of any right of counterclaim or set-off, not later than 12:00 noon (New York City time) on the day when due in United States Dollars to the Administrative Agent at the Administrative Agent’s Account in same day funds. The Administrative Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal or interest or commitment fees ratably (other than amounts payable pursuant to Section 2.05(b), 2.12, 2.15, 2.21 or 8.04(c)) to the Lenders or Issuing Banks to which such amounts shall be payable for the account of their respective

 

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Applicable Lending Offices, and like funds relating to the payment of any other amount payable to any Lender or Issuing Bank to such Lender or Issuing Bank for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement. Upon its acceptance of an Assignment and Assumption and recording of the information contained therein in the Register pursuant to Section 8.07(c), from and after the effective date specified in such Assignment and Assumption, the Administrative Agent shall make all payments hereunder in respect of the interest assigned thereby to the Lender assignee thereunder, and the parties to such Assignment and Assumption shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves.

(b) The Borrower hereby authorizes each Lender and Issuing Bank, if and to the extent payment owed to such Lender or Issuing Bank is not made when due hereunder, to charge from time to time against any or all of the Borrower’s accounts with such Lender or Issuing Bank any amount so due.

(c) All computations of interest based on the rate of interest referred to in clause (a) of the definition of the term “ Base Rate ” in Section 1.01 shall be made by the Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on the Eurodollar Rate or the rate of interest referred to in clause (b) or (c) of the definition of the term “ Base Rate ” in Section 1.01 and of fees shall be made by the Administrative Agent on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the final day) occurring in the period for which such interest or fees are payable. Each determination by the Administrative Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error.

(d) Whenever any payment hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest or fee, as the case may be; provided , however , if such extension would cause payment of interest on or principal of Eurodollar Rate Advances to be made in the next following calendar month, such payment shall be made on the next preceding Business Day.

(e) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Lenders or the Issuing Banks hereunder that the Borrower will not make such payment in full, the Administrative Agent may assume that the Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each Lender or Issuing Bank on such due date an amount equal to the amount then due such Lender or Issuing Bank. If and to the extent the Borrower shall not have so made such payment in full to the Administrative Agent, each Lender or Issuing Bank shall repay to the Administrative Agent forthwith on demand such amount distributed to such Lender or Issuing Bank together with interest thereon, for each day from the date such amount is distributed to such Lender or Issuing Bank until the date such Lender or Issuing Bank repays such amount to the Administrative Agent, at the Federal Funds Rate.

SECTION 2.15.  Taxes . (a) Subject to Sections 2.15(e), (f) and (h), any and all payments by the Borrower under any Document and Loan Document shall be made, in accordance with Section 2.14, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto imposed by the

 

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United States or any political subdivision or taxing authority thereof or therein or any other jurisdiction from or through which the Borrower makes payment hereunder, excluding , (i) in the case of each Lender Party and the Administrative Agent, taxes imposed on its overall net income or capital, branch profits taxes and franchise taxes imposed on it in lieu of net income taxes by the jurisdiction under the laws of which such Lender Party or the Administrative Agent (as the case may be) is organized or any political subdivision thereof and, in the case of each Lender Party, taxes imposed on its overall net income or capital, branch profits taxes and franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction in which the principal office or such Lender Party’s Applicable Lending Office is located or any political subdivision thereof or any taxes imposed by Sections 864(c)(7) or 877 of the Internal Revenue Code, or any similar provision of law and (ii) any United States withholding tax imposed under FATCA (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities in respect of payments under any Document or Loan Document being hereinafter referred to as “ Taxes ”). If the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable under any Document or Loan Document to any Lender Party or the Administrative Agent, or, if the Administrative Agent shall be required by law to deduct any Taxes from or in respect of any sum paid or payable under any Document or Loan Document to any Lender Party, (i) the sum payable by the Borrower shall be increased by the Borrower as may be necessary so that, after making all required deductions (including deductions, whether by the Borrower or the Administrative Agent, applicable to additional sums payable under this Section 2.15) such Lender Party and the Administrative Agent receive an amount equal to the sum they each would have received had no such deductions been made (for example, and without limitation of the generality of the foregoing, if the sum paid or payable hereunder from or in respect of which the Borrower or the Administrative Agent shall be required to deduct any Taxes is interest, the interest payable by such Borrower shall be increased by the Borrower as may be necessary so that, after making all required deductions (including deductions applicable to additional interest), such Lender Party and the Administrative Agent each receive interest equal to the interest they each would have received had no such deduction been made), (ii) the Borrower (or, as the case may be and as required by applicable law, the Administrative Agent) shall make such deductions and (iii) the Borrower (or, as the case may be and as required by applicable law, the Administrative Agent) shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.

(b) In addition, the Borrower agrees to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies that arise from any payment made under any Document or Loan Document or from the execution, delivery or registration of, performing under, or otherwise with respect to, any Document or Loan Document (hereinafter referred to as “ Other Taxes ”).

(c) Subject to Sections 2.15(e), (f) and (h), the Borrower shall indemnify each Lender Party and the Administrative Agent for and hold each Lender Party and the Administrative Agent harmless against the full amount of Taxes or Other Taxes imposed on or paid by such Lender Party or the Administrative Agent (as the case may be) and any liability (including penalties, additions to tax, interest and expenses) arising therefrom or with respect thereto. This indemnification shall be made within 30 days from the date such Lender Party or the Administrative Agent (as the case may be) makes written demand therefor.

(d) Within 30 days after the date of any payment of Taxes by or on behalf of the Borrower, the Borrower shall furnish to the Administrative Agent, at its address referred to in Section 8.02, the original or a certified copy of a receipt evidencing such payment to the extent such a receipt is

 

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issued therefor, or other written proof of payment thereof that is reasonably satisfactory to the Administrative Agent.

(e) (i) Each Lender Party that is not a “United States person” within the meaning of Section 7701(a)(30) of the Internal Revenue Code, on or prior to the date of its execution and delivery of this Agreement in the case of each Initial Lender Party and on the date of the Assignment and Assumption pursuant to which it becomes a Lender Party in the case of each other Lender Party, and from time to time thereafter as requested in writing by the Borrower or upon the obsolescence, expiration or invalidity of any form previously delivered by such Lender Party (but only so long as such Lender Party remains lawfully able to do so), shall provide each of the Administrative Agent and the Borrower with two original Internal Revenue Service forms W-8BEN or W-8ECI, as appropriate, or any successor or other form prescribed by the Internal Revenue Service, certifying that such Lender Party is exempt from or entitled to a reduced rate of United States withholding tax on payments pursuant to this Agreement and, in the case of a Lender Party claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the Internal Revenue Code with respect to payments of “portfolio interest,” a statement substantially in the form of Exhibit H. If the form provided by a Lender Party at the time such Lender Party first becomes a party to this Agreement indicates a United States interest withholding tax rate in excess of zero, withholding tax at such rate shall be considered excluded from Taxes unless and until such Lender Party provides the appropriate forms certifying that a lesser rate applies, whereupon withholding tax at such lesser rate only shall be considered excluded from Taxes for periods governed by such form; provided , however , if at the date of the Assignment and Assumption pursuant to which a Lender Party assignee becomes a party to this Agreement, the Lender Party assignor was entitled to payments under subsection (a) in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to the Lender Party assignee on such date. If any form or document referred to in this subsection (e) requires the disclosure of information, other than information necessary to compute the tax payable and information required on the date hereof by Internal Revenue Service form W-8BEN or W-8ECI, that the Lender Party reasonably considers to be confidential, the Lender Party shall give notice thereof to the Borrower and shall not be obligated to include in such form or document such confidential information.

(ii) If a payment made to a Lender Party would be subject to United States federal withholding tax imposed by FATCA if such Lender Party were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender Party shall deliver to the Borrower, at the time or times prescribed by law and at such time or times reasonably requested in writing by the Borrower, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested in writing by the Borrower as may be necessary for the Borrower to comply with its obligations under FATCA, to determine that such Lender Party has complied with such Lender Party’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. For purposes of this Section 2.15(e)(ii) FATCA shall include any Treasury regulations or interpretations thereof.

(f) For any period with respect to which a Lender Party has failed to provide the Borrower with the appropriate form, certificate or other document described in Section 2.15(e) ( other than if such failure is due to a change in law, or in the interpretation or application thereof occurring subsequent to the date on which a form, certificate or other document originally was required to be

 

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provided, or if such form, certificate or other document otherwise is not required under subsection (e) above), such Lender Party shall not be entitled to indemnification under Section 2.15(a) or Section 2.15(c) with respect to Taxes imposed by the United States by reason of such failure; provided , however , should a Lender Party become subject to Taxes because of its failure to deliver a form, certificate or other document required hereunder, the Borrower shall take such steps as the Lender Party shall reasonably request to assist the Lender Party to recover such Taxes.

(g) In the event that an additional payment is made under Section 2.15(a) or Section 2.15(c) for the account of any Lender Party and such Lender Party, in its sole discretion, determines that it has finally and irrevocably received or been granted a credit against or release or remission for, or repayment of, any tax paid or payable by it in respect of or calculated with reference to the deduction or withholding giving rise to such additional payment, such Lender Party shall, to the extent that it determines that it can do so without prejudice to the retention of the amount of such credit, relief, remission or repayment, pay to the Borrower such amount as such Lender Party shall, in its sole discretion, have determined to be attributable to such deduction or withholding and which will leave such Lender Party (after such payment) in no worse position than it would have been in if the Borrower had not been required to make such deduction or withholding; provided that the Borrower, upon the request of such Lender Party, agrees to pay the amount paid over to the Borrower (plus penalties, interest and other reasonable charges) to such Lender Party in the event such Lender Party is required to repay such credit, relief, remission or repayment to the applicable taxation authority. Nothing herein contained shall interfere with the right of a Lender Party to arrange its tax affairs in whatever manner it thinks fit nor oblige any Lender Party to claim any tax credit or to disclose any information relating to its tax affairs or any computations in respect thereof or require any Lender Party to do anything that would prejudice its ability to benefit from any other credits, reliefs, remissions or repayments to which it may be entitled.

(h) Upon the request of Borrower or upon the obsolescence, expiration or invalidity of any form previously delivered by such Lender Party, any Lender Party that is a “United States person” within the meaning of Section 7701(a)(30) of the Internal Revenue Code shall deliver to the Borrower two original Internal Revenue Service form W-9 or any successor or other form prescribed by the Internal Revenue Service. If any Lender Party fails to deliver Internal Revenue Service form W-9 or any subsequent versions thereof or successors thereto as required herein, then the Borrower may withhold from any payment to such Lender Party the applicable backup withholding tax imposed by the Internal Revenue Code and remit such amount to the applicable taxation authority if required by law, without reduction, and such Lender Party shall not be entitled to any additional amounts under this Section 2.15 with respect to Taxes imposed by the United States by reason of such failure.

SECTION 2.16.  Sharing of Payments, Etc . If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Advances or other obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Advances and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Advances and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Advances and other amounts owing them; provided that:

 

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(i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

(ii) the provisions of this paragraph shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Advances or participations in L/C Obligations to any assignee or participant, other than to the Borrower or any Subsidiary thereof (as to which the provisions of this paragraph shall apply).

The Borrower agrees that any Lender so purchasing a participation from another Lender by delivering payment pursuant to this Section 2.16 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.

SECTION 2.17.  Mitigation Obligations; Replacement of Lenders . (a)  Designation of a Different Lending Office . If any Lender requests compensation under Section 2.12, asserts a claim under Section 2.13 or requires the Borrower to pay additional amounts to any Lender or any governmental authority for the account of any Lender pursuant to Section 2.15, then such Lender shall (at the request of the Borrower) use reasonable efforts to designate a different lending office for funding or booking its Advances hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the good faith judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.12 or 2.15 (or eliminate any claim under Section 2.13), as the case may be, in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise cause more than an insubstantial disadvantage to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

(b) Replacement of Lenders . So long as no Default is continuing, if (i) the Borrower becomes obligated to pay additional amounts to any Lender pursuant to Section 2.12 or 2.15, (ii) any Eurodollar Rate Advance is required to be Converted into a Base Rate Advance pursuant to Section 2.13, in the case of clause (i) or this clause (ii) as a result of any condition described in such Sections that is not generally applicable to all the Lenders, (iii) any Lender fails to extend the Termination Date in accordance with Section 8.11, (iv) any Lender is a Defaulting Lender or (v) any Lender does not approve any consent, waiver or amendment that (x) requires the approval of all affected Lenders in accordance with the terms of Section 8.01 and (y) has been approved by the Required Lenders (a “ Non-Approving Lender ”), then the Borrower may, at its sole expense and effort, within fifteen (15) days of being notified of such condition or circumstance, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 8.07), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:

(i) the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 8.07;

 

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(ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 8.04(c)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);

(iii) in the case of any such assignment resulting from a claim for compensation under Section 2.12 or payments required to be made pursuant to Section 2.15, such assignment will result in a reduction in such compensation or payments thereafter;

(iv) such assignment does not conflict with applicable law; and

(v) in the case of any assignment resulting from a Lender becoming a Non-Approving Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.

SECTION 2.18.  Use of Proceeds . (a) Subject to the provisions of subsection (b) of this Section 2.18, the proceeds of the Advances shall be available (and the Borrower agrees that it shall use such proceeds) solely for general corporate purposes of the Borrower (including, without limitation, the making of loans by the Borrower to any of its Affiliates, provided that such Affiliate is a Wholly-Owned Subsidiary) and its Subsidiaries; provided , however , that, except as specifically provided in, and in accordance with the terms of, Section 5.02(d), none of such proceeds shall be used by the Borrower or any of its Subsidiaries or Affiliates to acquire any equity security of any issuer pursuant to a general solicitation, exchange offer or tender offer for, or pursuant to a request or invitation for tenders of, such security unless the board of directors of such issuer shall have approved and recommended such general solicitation, exchange offer, tender offer or request or invitation for tender at or prior to the initiation thereof.

(b) Notwithstanding anything to the contrary contained herein, the Borrower agrees that none of the proceeds of the Advances or drawing under any Letter of Credit shall be used by the Borrower or any of its Subsidiaries, directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any Margin Stock.

SECTION 2.19.  Increase of Commitments (a) The Borrower may, at any time on or after a Section 2.19 Effective Date, but in any event not more than two times during any calendar year, make a written request (an “ Increase Request ”) to the Administrative Agent (who shall forward a copy to each Lender) that the Revolving Credit Commitments of the Lenders be increased in (i) an aggregate amount for each Increase Request of not less than $25,000,000 and integral multiples of $1,000,000 in excess thereof (such amount being the “ Requested RCC Increase ”) and (ii) an aggregate amount for such Increase Request, together with the aggregate amount by which the Revolving Credit Commitments of the Lenders were previously increased pursuant to this Section 2.19, if any, not to exceed $400,000,000. Such Increase Request shall include (A) a certification by a Senior Financial Officer of the Borrower that no Default has occurred and is continuing and all representations and

 

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warranties contained herein are true and correct in all material respects on and as of the date of the Increase Request (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date) and (B) the written consent of the Guarantor to such Increase Request together with a written confirmation, in a form reasonably acceptable to the Administrative Agent, by the Guarantor that the Amended and Restated Guaranty applies to any increase of a Lender’s Revolving Credit Commitment and any amounts made available by an Eligible Assignee pursuant to the terms hereof. Any such increase in Revolving Credit Commitments shall be effective as of a date (the “ Increase Date ”) specified in the related Increase Request that is (I) prior to the Termination Date and (II) at least 15 Business Days after the date of such Increase Request. Each Increase Request shall specify the date by which Lenders who wish to increase their Revolving Credit Commitments must consent to such increase, which date (the “ Commitment Date ”) shall be no later than 5 Business Days prior to the related Increase Date. Each Lender that is willing to increase its Revolving Credit Commitment (each such Lender, an “ Increasing Lender ”) shall notify the Administrative Agent on or prior to the Commitment Date of the amount by which it is willing to increase its Revolving Credit Commitment, which amount shall not exceed the amount specified in the relevant Increase Request. Any Lender that does not notify the Administrative Agent by the Commitment Date shall be deemed to have elected not to increase its Commitment. No Lender shall be obligated to increase its Revolving Credit Commitment pursuant to this Section 2.19 and any such increase shall be in the sole discretion of each Lender and shall be subject to the consent of the Administrative Agent, the Issuing Banks and the Swing Line Bank, such consent not to be unreasonably withheld or delayed. If the Increasing Lenders notify the Administrative Agent that they are willing to increase the amount of their respective Revolving Credit Commitments by an aggregate amount that exceeds the amount of the requested increase, the requested increase shall be allocated among the Increasing Lenders ratably in accordance with the amount by which they offered to increase their respective Revolving Credit Commitments on or prior to the Commitment Date.

(b) Promptly following each Commitment Date, the Administrative Agent shall notify the Borrower as to the amount, if any, by which the Increasing Lenders are willing to participate in the requested increase. If the aggregate amount by which the Increasing Lenders are willing to increase their Revolving Credit Commitments on any such Commitment Date is less than the requested amount, then any one or more Eligible Assignees designated by the Borrower that agree to provide Revolving Credit Commitments may become party to this Agreement by executing and delivering, together with the Borrower, an Accession Letter Agreement pursuant to which such Eligible Assignee shall become a party to this Agreement and, to the extent provided therein, shall have the rights and obligations of a Lender hereunder; provided that each such Eligible Assignee shall provide a Revolving Credit Commitment in a minimum amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof.

(c) On each Increase Date, (i) each Eligible Assignee that accepts an offer to participate in a requested Revolving Credit Commitment increase in accordance with Section 2.19(b) shall become a Lender party to this Agreement as of such Increase Date and the Revolving Credit Commitment of each Increasing Lender shall be increased as of such Increase Date by the amount set forth in its notice delivered to the Administrative Agent in accordance with Section 2.19(a) (or by the amount allocated to such Lender pursuant to the final sentence of Section 2.19(a) and (ii)) if on such date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause each Lender to hold its Pro Rata Share of such outstanding Advances as of the Increase Date.

 

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(d) The Borrower may from time to time in accordance with Section 2.19(a) make an Increase Request on and after a date (each such date, the “ Section 2.19 Effective Date ”) on which the Administrative Agent shall have received the following in respect of the Requested RCC Increase set forth in such Increase Request, each dated as of the applicable Section 2.19 Effective Date, in form and substance reasonably satisfactory to the Administrative Agent and in sufficient copies for each Lender:

(i) Certified copies of the resolutions of the board of directors of the Borrower approving the transactions contemplated by the applicable Requested RCC Increase, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to the transactions contemplated by this Section 2.19.

(ii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign an Increase Request and the other documents to be delivered by the Borrower under this Section 2.19.

(iii) An Amended and Restated Guaranty, duly executed by the Guarantor in respect of all obligations of the Borrower under this Agreement after giving effect to the Requested RCC Increase set forth in such Increase Request.

(iv) Certified copies of the resolutions of the Board of Directors of the Guarantor authorizing the applicable Amended and Restated Guaranty and authorizing the guaranty of the Requested RCC Increase and all other obligations of the Borrower under this Agreement, including without limitation, any obligations of the Borrower arising under this Section 2.19, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to the applicable Amended and Restated Guaranty and the transactions contemplated by this Section 2.19.

(v) A certificate of the Secretary or an Assistant Secretary of the Guarantor certifying the names and true signatures of the officers of the Guarantor authorized to sign the applicable Amended and Restated Guaranty and the other documents to be delivered by the Guarantor hereunder.

(vi) An opinion of internal counsel or an Associate General Counsel for, or acting on behalf of, the Borrower and the Guarantor, substantially in the form of Exhibit D-1.

(vii) An opinion of New York counsel to each of the Borrower and the Guarantor, substantially in the form of Exhibit D-2 or otherwise in a form reasonably satisfactory to the Administrative Agent.

SECTION 2.20.  Evidence of Debt (a) Each Lender Party shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender Party resulting from each Advance owing to such Lender Party from time to time, including the amounts of principal and interest payable and paid to such Lender Party from time to time hereunder.

(b) The Register maintained by the Administrative Agent pursuant to Section 8.07(c) shall include a control account, and a subsidiary account for each Lender Party, in which accounts

 

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(taken together) shall be recorded (i) the date, amount and type of each Advance made hereunder, and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each Assignment and Assumption and Accession Letter Agreement delivered to and accepted by it, (iii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender Party hereunder and (iv) the amount of any sum received by the Administrative Agent from the Borrower hereunder and each Lender Party’s share thereof.

(c) Entries made in good faith by the Administrative Agent in the Register pursuant to subsection (b) above, shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrower to each Lender Party under this Agreement, absent manifest error; provided , however , that the failure of the Administrative Agent to make an entry, or any finding that an entry is incorrect, in the Register shall not limit or otherwise affect the obligations of the Borrower under this Agreement.

SECTION 2.21.  Defaulting Lenders . (a) If a Lender becomes, and during the period it remains, a Defaulting Lender, the following provisions shall apply:

(i) such Defaulting Lenders’ Pro Rata Share of the L/C Obligations and Swing Line Advances will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Commitments; provided that (A) the sum of each Non-Defaulting Lender’s aggregate principal amount of Revolving Credit Advances and allocated share of the L/C Obligations and Swing Line Advances may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent or any Lender Party may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;

(ii) to the extent that (a) any portion (the “ unreallocated portion ”) of the Defaulting Lender’s share of the L/C Obligations and Swing Line Advances cannot be so reallocated, whether by reason of the first proviso in clause (i) above or otherwise and (b) the Defaulting Lender has not made an assignment and delegation pursuant to Section 2.17(b)(iv), in each case within 20 days after receipt by the Borrower of written notice by the Administrative Agent that such Lender has become a Defaulting Lender, then the Borrower will, not later than five Business Days after demand by the Administrative Agent (at the direction of an Issuing Bank and/or a Swing Line Bank), (A) Cash Collateralize the obligations of the Borrower in respect of such L/C Obligations or Swing Line Advances in an amount at least equal to the aggregate amount of the unreallocated portion of such L/C Obligations or Swing Line Advances, or (B) make other arrangements satisfactory to the Administrative Agent, each Issuing Bank and each Swing Line Bank, as the case may be, in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender; and

(iii) amounts deposited pursuant to clause (ii) above at the request of any Issuing Bank or any Swing Line Bank shall be applied by the Administrative Agent to reimburse such Issuing Bank or such Swing Line Bank for any participations required to

 

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be funded by such Defaulting Lender. In the event amounts so deposited with respect to any such Defaulting Lender for the benefit of any Issuing Bank or any Swing Line Bank exceed the Pro Rata Share of such Defaulting Lender attributable to the Letters of Credit issued by such Issuing Bank or the Pro Rata Share of such Defaulting Lender attributable to the Swing Line Advances, as the case may be, the Administrative Agent shall give prompt notice thereof to the Borrower and, unless otherwise specified in writing by the Borrower, shall promptly return to the Borrower cash in the amount of such excess.

(iv) if the Borrower Cash Collateralizes any portion of such Defaulting Lenders share of the L/C Obligations pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender under Section 2.05(b) with respect to such Defaulting Lender’s share of the L/C Obligations during the period that such Defaulting Lender’s share of the L/C Obligations is Cash Collateralized;

(v) any amount paid by the Borrower (which, for the avoidance of doubt, shall not include any amounts set off by the Borrower pursuant to Section 8.05(b)) or otherwise received by the Administrative Agent for the account of a Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity payments or other amounts) will not be paid or distributed to such Defaulting Lender, but will instead be retained by the Administrative Agent in a segregated non-interest bearing account until (subject to Section 2.21(c)) the termination of the Revolving Credit Commitments and payment in full of all obligations of the Borrower hereunder and will be applied by the Administrative Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority:  first to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreement, second to the payment of any amounts owing by such Defaulting Lender to an Issuing Bank or a Swing Line Bank ( pro rata as to the respective amounts owing to each of them) under this Agreement, third to the payment of post-default interest and then current interest due and payable to the Lenders hereunder other than Defaulting Lenders, ratably among them in accordance with the amounts of such interest then due and payable to them, fourth to the payment of fees then due and payable to the Non-Defaulting Lenders hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fifth to pay principal then due and payable to the Non-Defaulting Lenders hereunder ratably in accordance with the amounts thereof then due and payable to them, sixth to the ratable payment of other amounts then due and payable to the Non-Defaulting Lenders, and seventh after the termination of the Revolving Credit Commitments and payment in full of all obligations of the Borrower hereunder, to pay amounts owing under this Agreement to such Defaulting Lender or as a court of competent jurisdiction may otherwise direct. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

In furtherance of the foregoing, if any Lender becomes, and during the period it remains, a Defaulting Lender and the Borrower fails to comply with its obligations under Section 2.21(a)(ii) within the time periods set forth in such section, each Issuing Bank and each Swing Line Bank is hereby authorized by the Borrower (which authorization is irrevocable and coupled with an interest) to give, in its discretion,

 

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through the Administrative Agent, Notices of Borrowing pursuant to Section 3.02 in such amounts as may be required to fulfill the Borrower’s obligations under Section 2.21(a)(ii)(A).

(b) No Revolving Credit Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.21, performance by the Borrower of its obligations shall not be excused or otherwise modified as a result of the operation of this Section 2.21. The rights and remedies against a Defaulting Lender under this Section 2.21 are in addition to any other rights and remedies which the Borrower, the Administrative Agent, any Issuing Bank, any Swing Line Bank or any Lender may have against such Defaulting Lender.

(c) If the Borrower, the Administrative Agent, the Issuing Bank and the Swing Line Bank agree in writing in their discretion that a Lender that is a Defaulting Lender or a Potential Defaulting Lender should no longer be deemed to be a Defaulting Lender or Potential Defaulting Lender, as the case may be, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.21(a)(iii)), such Lender will, to the extent applicable, purchase such portion of outstanding Advances of the other Lenders and/or make such other adjustments as the Administrative Agent may determine to be necessary to cause the Revolving Credit Commitments, Letter of Credit Sub-Commitments and Swing Line Sub-Commitments of the Lenders to be on a pro rata basis in accordance with their respective Commitments, whereupon such Lender will cease to be a Defaulting Lender or Potential Defaulting Lender and will be a Non-Defaulting Lender (and such exposure of each Lender will automatically be adjusted on a prospective basis to reflect the foregoing); provided , that no adjustments will be made retroactively with respect to payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender; and provided , further , that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender or Potential Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender or Potential Defaulting Lender.

ARTICLE III

CONDITIONS TO EFFECTIVENESS AND LENDING

SECTION 3.01.  Conditions Precedent to Effectiveness . This Agreement shall become effective on and as of the first date (such first date, the “ Effective Date ”) on which the following conditions precedent have been satisfied:

(a) The Administrative Agent shall not have received on or prior to the Effective Date notice from Required Lenders that a Material Adverse Change since December 31, 2010, has occurred and is continuing.

(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Guarantor, the Borrower or any of their respective Subsidiaries, including any Environmental Action, pending or, to the best of the Borrower’s knowledge after reasonable investigation, overtly threatened, before any court, governmental agency or arbitrator that (i) is reasonably likely to be determined adversely and, if determined adversely, would have a Material Adverse Effect or (ii) purports to adversely affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated hereby.

 

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(c) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date, and the Administrative Agent shall have notified each Lender thereof.

(d) The Borrower shall have paid all accrued and invoiced fees and reasonable expenses of the Administrative Agent, the Lenders and the Issuing Banks (including the accrued and invoiced reasonable fees and out of pocket expenses of counsel to the Administrative Agent).

(e) On the Effective Date, the following statements shall be true and the Administrative Agent shall have received for the account of each Lender and Issuing Bank a certificate signed by a duly authorized officer of each of the Borrower and the Guarantor, dated the Effective Date, stating that:

(i) The representations and warranties contained in Section 4.01 of this Agreement and in Section 6 of the Guaranty are correct in all material respects on and as of the Effective Date; and

(ii) No event has occurred and is continuing that constitutes a Default.

(f) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance satisfactory to the Administrative Agent and in sufficient copies for each Lender:

(i) This Agreement, executed by each of the parties hereto.

(ii) The Guaranty, duly executed by the Guarantor.

(iii) Certified copies of the resolutions of the board of directors of the Borrower approving this Agreement of the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement.

(iv) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder.

(v) Certified copies of the resolutions of the Board of Directors of the Guarantor approving the Guaranty, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to the Guaranty.

(vi) A certificate of the Secretary or an Assistant Secretary of the Guarantor certifying the names and true signatures of the officers of the Guarantor authorized to sign the Guaranty and the other documents to be delivered by the Guarantor hereunder.

(vii) An opinion of internal counsel or an Associate General Counsel for, or acting on behalf of, the Borrower and the Guarantor, substantially in the form of Exhibit D-1 hereto.

 

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(viii) An opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP, special New York counsel to each of the Borrower and the Guarantor, substantially in the form of Exhibit D-2 hereto or otherwise in a form reasonably satisfactory to the Administrative Agent.

(ix) A letter from the Process Agent (as defined in the Guaranty) agreeing to act as Process Agent on behalf of the Guarantor.

(g) The commitments of the lenders under the Original Credit Agreement that are not Lenders hereunder shall have been terminated, and the Borrower shall have made payment in full of the aggregate principal amount of all advances outstanding to all lenders thereunder, together with accrued interest thereon and all fees and other amounts invoiced and owing to the lenders thereunder to the Effective Date.

SECTION 3.02.  Conditions Precedent to Each Borrowing and Issuance . (a) Except as specified in subsection (b) of this Section 3.02, the obligation of each Lender to make an Advance (other than a Letter of Credit Advance made by an Issuing Bank or a Lender pursuant to Section 2.04(c) and a Swing Line Advance made by a Lender pursuant to Section 2.03(a)) on the occasion of each Borrowing (including the initial Borrowing) and the obligation of each Issuing Bank to issue a Letter of Credit (including the initial issuance), shall be subject to the conditions precedent that the Effective Date shall have occurred and on the date of such Borrowing or issuance:

(i) the following statements shall be true (and each of the giving of the applicable Notice of Borrowing or Notice of Issuance and the acceptance by the Borrower of the proceeds of such Borrowing or the acceptance of the applicable Letter of Credit, as the case may be, shall constitute a representation and warranty by the Borrower that on the date of such Borrowing or issuance such statements are true):

(A) the representations and warranties contained in Section 4.01 of this Agreement and in Section 6 of the Guaranty are correct in all material respects on and as of the date of such Borrowing or issuance, before and after giving effect to such Borrowing or issuance and to the application of the proceeds therefrom, as though made on and as of such date; and

(B) no event has occurred and is continuing, or would result from such Borrowing or issuance or from the application of the proceeds therefrom, that constitutes a Default; and

(ii) the Administrative Agent shall have received such other approvals, opinions or documents as any Lender or Issuing Bank through the Administrative Agent may reasonably request.

(b) If a Default or an event which, but for the application of the last sentence of Section 6.01, would be such a Default (other than a Default or event specified in Section 6.01(e)) shall have occurred and be continuing, or would result from such Borrowing or issuance, the obligation of each Lender to make an Advance (other than a Letter of Credit Advance made by an Issuing Bank or a Lender pursuant to Section 2.04(c) and a Swing Line Advance made by a Lender pursuant to Section 2.03(a)) on the occasion of each Borrowing (including the initial Borrowing) and the obligation of each

 

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Issuing Bank to issue a Letter of Credit (including the initial issuance), shall be subject to the conditions precedent that the Effective Date shall have occurred and on the date of such Borrowing or issuance:

(i) the following statement shall be true (and each of the giving of the applicable Notice of Borrowing or Notice of Issuance and the acceptance by the Borrower of the proceeds of such Borrowing or the acceptance of the applicable Letter of Credit, as the case may be, shall constitute a representation and warranty by the Borrower that on the date of such Borrowing or issuance such statement is true): after giving effect to the waiver described in clause (ii) below, solely with respect to the subject matter of such waiver, the representations and warranties contained in Section 4.01 of this Agreement and in Section 6 of the Guaranty are correct in all material respects on and as of the date of such Borrowing or issuance, before and after giving effect to such Borrowing or issuance and to the application of the proceeds therefrom, as though made on and as of such date; and

(ii) the Administrative Agent shall have received the approval of (I) the Required Lenders to waive any Default or any event which, but for the application of the last sentence of Section 6.01, would be such a Default specified in Section 6.01(b), (c), (d), (f), (g), (h) or (j), and (II) each of the Lenders to waive any Default or any event which, but for the application of the last sentence of Section 6.01, would be such a Default specified in Section 6.01(a) or (i); and

(iii) the Administrative Agent shall have received such other approvals, opinions or documents as any Lender or Issuing Bank through the Administrative Agent may reasonably request.

(c) The right of the Borrower to request a Swing Line Borrowing shall be subject to the conditions precedent that the Effective Date shall have occurred and on the date of such Borrowing:

(i) the following statement shall be true (and each of the giving of the applicable Notice of Swing Line Borrowing and the acceptance by the Borrower of the proceeds of such Borrowing shall constitute a representation and warranty by the Borrower that on the date of such Borrowing such statement is true): the representations and warranties contained in Section 4.01 of this Agreement and in Section 6 of the Guaranty are correct in all material respects on and as of the date of such Borrowing, before and after giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date; and

(ii) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, that constitutes a Default.

(d) In addition to the other conditions precedent herein set forth, if any Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Bank will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, and the Swing Line Bank will not be required to make any Swing Line Advance, unless the Issuing Bank or the Swing Line Bank, as the case may be, is satisfied that any exposure that would result therefrom is fully covered or eliminated in a manner satisfactory to the Issuing Bank or Swing Line Bank. Nothing herein will constitute a waiver or release of any claim the Borrower, the

 

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Administrative Agent, the Issuing Bank, the Swing Line Bank or any other Lender may have against such Defaulting Lender, or cause such Defaulting Lender or Potential Defaulting Lender to be a Non-Defaulting Lender.

SECTION 3.03.  Determinations Under Section 3.01 . For purposes of determining compliance with the conditions specified in Section 3.01, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by this Agreement shall have received notice from such Lender prior to the date that the Borrower, by notice to the Lenders, designates as the proposed Effective Date, specifying its objection thereto. The Administrative Agent shall promptly notify the Lenders of the occurrence of the Effective Date.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

SECTION 4.01.  Representations and Warranties of the Borrower . The Borrower represents and warrants as follows:

(a) The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.

(b) The execution, delivery and performance by the Borrower of this Agreement and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the Borrower’s charter or by-laws or (ii) law or any contractual restriction binding on or affecting the Borrower.

(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement.

(d) This Agreement has been duly executed and delivered by the Borrower. This Agreement is the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, except to the extent that such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally from time to time in effect and may be subject to the discretion of courts with respect to the granting of equitable remedies and to the power of courts to stay proceedings for the execution of judgments.

(e) The Consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, 2010, and the related Consolidated statements of earnings and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of the Borrower’s auditors thereon, copies of which have been furnished to the Administrative Agent, fairly present the Consolidated financial condition of the Borrower and its Subsidiaries as at such date and the Consolidated results of the operations of the Borrower and its Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied. Since December 31, 2010, there has been no Material Adverse Change.

 

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(f) There is no action, suit, litigation or proceeding affecting the Borrower or any of its Subsidiaries, including any Environmental Action, pending or, to the best of the Borrower’s knowledge after reasonable investigation, overtly threatened, before any court, governmental agency or arbitrator that (i) is reasonably likely to be determined adversely, and if determined adversely, would have a Material Adverse Effect or (ii) purports to affect adversely the legality, validity or enforceability of this Agreement or the consummation of the transactions contemplated hereby.

(g) The operations and properties of the Borrower and each of its Subsidiaries comply in all material respects with all applicable laws, rules, regulations and orders, except where the failure to comply could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

(h) Neither the Borrower nor any of its Subsidiaries is an Investment Company, as such term is defined in the Investment Company Act of 1940, as amended.

(i) The Borrower and each of its Subsidiaries have filed, have caused to be filed or have been included in all tax returns (federal, state, local and foreign) required to be filed or, in the case of income taxes, required to be filed and where the failure to do so would cause the imposition of a penalty or interest, and in each case have paid all taxes shown thereon to be due, together with applicable interest and penalties other than taxes that are being contested in good faith and by proper proceedings and as to which appropriate reserves are being maintained, except where the failure to do so could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

(j) Except as could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect,

(i) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan.

(ii) Schedule SB (Actuarial Information) to the most recent annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Lender Parties to the extent required under Section 5.01(h)(vi)(C), is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule SB there has been no material adverse change in such funding status.

(iii) Neither any Loan Party nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan.

(iv) Neither any Loan Party nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, and no such Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA.

(v) With respect to each scheme or arrangement mandated by a government other than the United States (a “ Foreign Government Scheme or Arrangement ”) and with respect to each employee benefit plan maintained or contributed to by any Loan Party or

 

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any Subsidiary of any Loan Party that is not subject to United States law (a “ Foreign Plan ”):

(A) Any employer and employee contributions required by law or by the terms of any Foreign Government Scheme or Arrangement or any Foreign Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices.

(B) The fair market value of the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the date hereof, with respect to all current and former participants in such Foreign Plan according to the actuarial assumptions and valuations most recently used to account for such obligations in accordance with applicable GAAP.

(C) Each Foreign Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities.

(k) Foreign Assets Control Regulations, etc . Neither the making of the Advances to such Borrower nor its use of the proceeds thereof will violate in any material respect the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto. Without limiting the foregoing, neither such Borrower nor any of its Subsidiaries or Affiliates (a) is a Person whose property or interests in property are blocked pursuant to Section 1.1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) or (b) to its knowledge engages in any dealings or transactions, or be otherwise associated, with any such Person. Such Borrower and its Subsidiaries and Affiliates are in compliance, in all material respects, with the Uniting And Strengthening America By Providing Appropriate Tools Required To Intercept And Obstruct Terrorism (USA Patriot Act of 2001) (the “ Patriot Act ”).

ARTICLE V

COVENANTS OF THE BORROWER

SECTION 5.01.  Affirmative Covenants . So long as any Advance shall remain unpaid, any Letter of Credit shall be outstanding or any Lender or Issuing Bank shall have any Commitment hereunder, the Borrower will:

(a) Compliance with Laws, Etc . Comply, and cause each of its Subsidiaries to comply, in all material respects, with all applicable laws, rules, regulations and orders, such compliance to include, without limitation, compliance with ERISA, the requirements applicable to each Foreign Plan and Environmental Laws, except where the failure to so comply would not have a Material Adverse Effect.

(b) Payment of Taxes, Etc . Pay and discharge, and cause each of its Subsidiaries to pay and discharge, before the same shall become delinquent, (i) all material taxes, assessments and

 

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governmental charges or levies imposed upon it or upon its property and (ii) all lawful claims that, if unpaid, might by law become a Lien upon its property; provided , however , neither the Borrower nor any of its Subsidiaries shall be required to pay or discharge any such tax, assessment, charge or claim that is being contested in good faith and by proper proceedings and as to which appropriate reserves are being maintained, unless and until any Lien resulting therefrom which is material to the Borrower attaches to its property and becomes enforceable against its other creditors.

(c) Maintenance of Insurance . Maintain, and cause each of its Subsidiaries to maintain, insurance on all of its or their property which is of an insurable nature against such risks, in such amounts and in such manner as is usual in the case of corporations similarly situated and operating generally similar property and with such reputable insurance companies or associations as the Guarantor may select; provided that the Borrower and its Subsidiaries may from time to time adopt other methods or plans of protection, including self-insurance, against such risks in substitution or partial substitution for the aforesaid insurance if such plans or methods shall, in the opinion of the appropriate senior officers of the Guarantor or its Subsidiaries (including the Borrower), be in its or their best interest, and neither the Borrower nor any of its Subsidiaries shall be required to keep insured any of its property in respect of which insurance is being provided by others for its benefit.

(d) Preservation of Corporate Existence, Etc . Subject to Section 5.02(a), the Borrower shall maintain its corporate existence.

(e) Visitation Rights . At any reasonable time upon reasonable prior notice, permit the Administrative Agent or any of the Lenders or Issuing Banks or any agents or representatives thereof, at their own cost, to examine and make copies of and abstracts from the records and books of account of, and visit the properties of, the Borrower and any of its Subsidiaries, and to discuss the affairs, finances and accounts of the Borrower and any of its Subsidiaries with any of their senior officers or directors and with their independent auditors.

(f) Keeping of Books . Keep, and cause each of its Subsidiaries to keep, proper books of record and account, in which full and correct entries shall be made of all financial transactions and the assets and business of the Borrower and each such Subsidiary in accordance with GAAP.

(g) Maintenance of Properties, Etc . Maintain and preserve, and cause each of its Material Subsidiaries to maintain and preserve, its properties and assets that are used or useful in the conduct of its business in good working order and condition, ordinary wear and tear excepted, except that nothing contained in this Section shall prevent the Borrower or its Material Subsidiaries (i) from selling, leasing or otherwise disposing of any of its or their property or assets in one or a series of related transactions if the cumulative effect of such actions would not have a Material Adverse Effect or (ii) from ceasing to operate any of its or their property, assets or business, when in the opinion of the appropriate officers of the Borrower or its Material Subsidiaries it shall be advisable and in its or their best interests to do so.

(h) Reporting Requirements . Furnish to the Administrative Agent for further distribution to the Lenders:

(i) as soon as available and in any event within 75 days after the end of each of the first three Fiscal Quarters of the Borrower, the Consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the Consolidated statements of earnings and cash flows of the Borrower and its Subsidiaries for the period

 

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commencing at the end of the previous fiscal year and ending with the end of such Fiscal Quarter, with a statement (subject to year-end audit adjustments) by the chief financial officer or comptroller of the Borrower stating that such Consolidated financial statements have been prepared in accordance with GAAP, together with a Compliance Certificate;

(ii) as soon as available and in any event within 140 days after the end of each fiscal year of the Borrower, a copy of the annual audit report for such year for the Borrower and its Subsidiaries, containing the Consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal year and the Consolidated statements of earnings and cash flows of the Borrower and its Subsidiaries for such fiscal year, in each case accompanied by an auditor’s opinion reasonably acceptable to the Required Lenders, together with a Compliance Certificate;

(iii) in the case of each Default, as soon as possible and in any event within ten (10) days after a Senior Financial Officer of the Borrower has acquired knowledge of facts which constitute or give rise to such Default and provided that such Default is continuing on the date of such statement, a statement of the chief financial officer or chief executive officer of the Borrower setting forth details of such Default and the action that the Borrower has taken and proposes to take with respect thereto;

(iv) promptly after the sending or filing thereof, copies of all reports that the Borrower sends to any of its securityholders, and copies of all reports and registration statements that the Borrower or any Subsidiary files with the Securities and Exchange Commission or any national securities exchange;

(v) promptly after the commencement thereof, notice of all actions and proceedings before any court, governmental agency or arbitrator affecting the Borrower or any of its Subsidiaries of the type described in Section 4.01(f);

(vi) ERISA :

(A) ERISA Events and ERISA Reports . (x) Promptly and in any event within ten (10) days after any Loan Party or any ERISA Affiliate knows or has reason to know that any ERISA Event which could reasonably be expected to have a Material Adverse Effect has occurred, a statement of the chief financial officer of the Borrower describing such ERISA Event and the action, if any, that such Loan Party or such ERISA Affiliate has taken and proposes to take with respect thereto and (y) on the date any records, documents or other information must be furnished to the PBGC with respect to any Plan pursuant to Section 4010 of ERISA, a copy of such records, documents and information;

(B) Plan Terminations . Promptly and in any event within three (3) Business Days after receipt thereof by any Loan Party or any ERISA Affiliate, copies of each notice from the PBGC stating its intention to terminate any Plan or to have a trustee appointed to administer any Plan;

(C) Plan Annual Reports . Promptly (x) and in any event within 30 days after the filing thereof with the Internal Revenue Service, copies of each Schedule SB (Actuarial Information) to the annual report (Form 5500 Series) with

 

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respect to each Plan maintained, sponsored or contributed to by any of the Loan Parties and (y) upon the request of the Administrative Agent, a copy of the Schedule SB with respect to any other Plan;

(D) Multiemployer Plan Notices . Promptly and in any event within five (5) Business Days after receipt thereof by any Loan Party or any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of each notice concerning (x) the imposition of Withdrawal Liability by any such Multiemployer Plan that could reasonably be expected to have a Material Adverse Effect, (y) the reorganization or termination, within the meaning of Title IV of ERISA, of any such Multiemployer Plan that could reasonably be expected to have a Material Adverse Effect or (z) the amount of liability incurred, or that may be incurred, by such Loan Party or any ERISA Affiliate in connection with any event described in clause (x) or (y); and

(vii) at the request of the Administrative Agent or any Lender through the Administrative Agent, such other information, report, certificates or other matters affecting its material business, affairs, financial condition, property or assets or the material business, affairs, financial condition, property or assets of any Material Subsidiary, as the Administrative Agent or such Lender may reasonably request, excluding any such information, report, certificates or other matters relating to any Person other than the Borrower or any of its Affiliates which the Borrower is prohibited from disclosing to the Lenders pursuant to a confidentiality agreement between the Borrower and such Person.

(i) Environmental Covenants .

(i) Without limiting the generality of Section 5.01(a), the Borrower shall, and shall cause its Subsidiaries and any other party acting under their direction to, conduct their business and operations so as to comply at all times with all Environmental Laws and Environmental Permits if the consequence of a failure to comply could reasonably be expected, either alone or in conjunction with any other such noncompliance, to have a Material Adverse Effect.

(ii) If the Borrower or its Subsidiaries shall:

(A) receive or give any notice that a violation of any Environmental Law or Environmental Permit has or may have been committed or is about to be committed by the same, if such violation could reasonably be expected to have a Material Adverse Effect;

(B) receive any notice that a complaint, proceeding or order has been filed or is about to be filed against the same alleging a violation of any Environmental Law or Environmental Permit, if such violation could reasonably be expected to have a Material Adverse Effect; or

(C) receive any notice requiring the Borrower or a Subsidiary, as the case may be, to take any action in connection with the Release of Hazardous Materials into the environment or alleging that the Borrower or the Subsidiary

 

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may be liable or responsible for costs associated with a response to or to clean-up a Release of Hazardous Materials into the environment or any damages caused thereby, if such action or liability could reasonably be expected to have a Material Adverse Effect;

the Borrower shall promptly provide the Administrative Agent with a copy of such notice and shall, or shall cause its Subsidiary to, furnish to the Administrative Agent from time to time all reasonable information requested by the Administrative Agent relating to the same.

(iii) The Borrower shall notify the Administrative Agent promptly of any event or occurrence of which it is aware which could reasonably be expected to result in violation of any Environmental Law or Environmental Permit if such event or occurrence could reasonably be expected to have a Material Adverse Effect.

SECTION 5.02.  Negative Covenants . So long as any Advance shall remain unpaid, any Letter of Credit shall be outstanding or any Lender or Issuing Bank shall have any Commitment hereunder, the Borrower will not, unless the Required Lenders, the Administrative Agent and the Borrower otherwise agree in writing in accordance with Section 8.01:

(a) Mergers, etc . Enter into any transaction whereby all or substantially all of its undertaking, property and assets would become the property of any other Person (herein called a “ Successor ”) whether by way of reconstruction, reorganization, recapitalization, consolidation, amalgamation, merger, transfer, sale or otherwise, unless:

(i) prior to or contemporaneously with the consummation of such transaction:

(A) the Successor will be bound by or have assumed all the covenants and obligations of the Borrower under each Loan Document to which the Borrower is a party;

(B) each Loan Document to which the Borrower is a party will be the valid and binding obligation of the Successor, enforceable against the Successor, entitling the Administrative Agent, the Lenders and the Issuing Banks, as against the Successor, to exercise all of their substantive rights thereunder;

and provided that, for any such transaction involving (in addition to the Borrower) Persons other than Subsidiaries, the Successor shall also execute and deliver to the Administrative Agent such documents, if any, as may, in the reasonable opinion of the Administrative Agent, be necessary to effect or establish (A) and (B) above;

(ii) such transaction does not materially and adversely affect the ability of the Successor to perform the covenants and obligations of the Borrower under any of the Loan Documents to which the Borrower is a party; and

(iii) such transaction shall be on such terms and shall be carried out in such manner as to preserve and not to impair any of the substantive rights and powers of the Administrative Agent, the Lenders and the Issuing Banks under each Loan Document to

 

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which the Borrower is a party, such transaction shall not result in any requirement on the Successor to deduct or withhold any amount from any payment to be made under any of such Loan Documents or result in any liability on the Administrative Agent, the Lenders or the Issuing Banks for or in relation to any such deduction or withholding and such transaction shall not affect adversely the liability or potential liability of the Administrative Agent, the Lenders or the Issuing Banks for any present or future taxes, duties, assessments or charges of whatsoever nature imposed or levied by or on behalf of any applicable governmental authority having power to impose or levy taxes, duties, assessments or charges.

Notwithstanding the foregoing, any reconstruction, reorganization, recapitalization, consolidation, amalgamation, merger, transfer, sale or any other transaction involving only the Borrower, the Guarantor and/or any of their respective Affiliates whereby all or substantially all of the Borrower’s undertaking, property and assets would become the property of one or more Successors, that was an Affiliate of the Borrower or the Guarantor on or immediately prior to the date of such transaction, shall be permitted provided that such transaction complies with the following conditions:

 

  (I) such transaction complies with all of the conditions specified in clauses (i), (ii) and (iii) of this Section 5.02(a);

 

  (II) such transaction could not reasonably be expected to have a Material Adverse Effect, or affect the legality, validity or enforceability of any of the Loan Documents; and

 

  (III) such transaction shall not result in a change in the domicile or type or jurisdiction of the organization of the Borrower or the Guarantor.

(b) Negative Pledge . (i) Create, or permit any of its Restricted Subsidiaries to create, any mortgage, hypothecation, charge or other encumbrance on any of its or their property or assets, present or future, to secure Indebtedness, unless at or prior thereto, the Advances, up to the maximum aggregate amount of the Commitments then in effect, are equally and ratably secured or, at the option of the Borrower, security in the form of other property having at such time a Value equal to 150% of the aggregate Commitments at such time is extended to the Administrative Agent, the Lenders and the Issuing Banks; provided , however , that the preceding shall not apply to or operate to prevent the following:

(A) liens or other encumbrances, not related to the borrowing of money, incurred or arising by operation of law or in the ordinary course of business or incidental to the ownership of property or assets;

(B) pre-existing encumbrances on property or assets when acquired (including by way of lease);

(C) encumbrances or obligations to incur encumbrances (including under indentures, trust deeds and similar instruments) on property or assets of another Person existing at the time such other Person becomes a Subsidiary of the Borrower, or is liquidated or merged into, or amalgamated or consolidated with, the Borrower or a Subsidiary of the Borrower or at the time of the sale, lease or

 

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other disposition to the Borrower or a Subsidiary of the Borrower of all or substantially all of the properties and assets of such other Person, provided that such encumbrances were not incurred in anticipation of such other Person becoming a Subsidiary of the Borrower;

(D) encumbrances given by the Borrower or any of its Restricted Subsidiaries in compliance with contractual commitments in existence at the date hereof or entered into prior to a Restricted Subsidiary becoming a Restricted Subsidiary;

(E) giving security by the Borrower or a Subsidiary in favor of the Borrower or any of its Subsidiaries;

(F) creating, issuing or suffering to exist or becoming liable on, or giving or assuming, any Purchase Money Mortgage;

(G) creating, issuing or suffering to exist or becoming liable on, or giving or assuming any mortgage, hypothecation, charge or other encumbrance in connection with Indebtedness which, by its terms, is non-recourse to the Borrower or the Restricted Subsidiary;

(H) giving security on any specific property or asset in favor of a government within or outside Canada or any political subdivision, department, agency or instrumentality thereof to secure the performance of any covenant or obligation to or in favor of or entered into at the request of any such authorities where such security is required pursuant to any contract, statute, order or regulation;

(I) giving, in the ordinary course of business and for the purpose of carrying on the same, security on current assets to any bank or banks or others to secure any obligations repayable on demand or maturing, including any right of extension or renewal, within 12 months after the date such obligation is incurred;

(J) giving security on property or assets of whatsoever nature other than Restricted Property; provided , however , security on Restricted Property may be given to secure obligations incurred or guarantees of obligations incurred in connection with or necessarily incidental to the purchase, sale, storage, transportation or distribution of such Restricted Property or of the products derived from such Restricted Property;

(K) encumbrances arising under partnership agreements, oil and natural gas leases, overriding royalty agreements, net profits agreements, production payment agreements, royalty trust agreements, master limited partnership agreements, farm-out agreements, division orders, contracts for the sale, purchase, exchange, storage, transportation, distribution, gathering or processing of Restricted Property, unitizations and pooling designations, declarations, orders and agreements, development agreements, operating agreements, production sales contracts (including security in respect of take or pay or similar obligations thereunder), area of mutual interest agreements, natural

 

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gas balancing or deferred production agreements, injection, repressuring and recycling agreements, salt water or other disposal agreements, seismic or geophysical permits or agreements, which in each of the foregoing cases is customary in the oil and natural gas business, and other agreements which are customary in the oil and natural gas business, provided in all instances that such encumbrance is limited to the property or assets that are the subject of the relevant agreement;

(L) any encumbrance on any properties or facilities or any interest therein, construction thereon or improvement thereto incurred to secure all or any part of any Indebtedness relating to the reclamation and clean-up of such properties, facilities and interests and surrounding lands whether or not owned by the Borrower or a Restricted Subsidiary, the plugging or abandonment of wells and the decommissioning or removal of structures or facilities located on such properties or facilities provided such Indebtedness is incurred prior to, during or within two years after the completion of reclamation and clean-up or such other activity;

(M) encumbrances in respect of the joint development, operation or present or future reclamation, clean-up or abandonment of properties, facilities and surrounding lands or related production or processing as security in favor of any other owner or operator of such assets for the Borrower’s or any Restricted Subsidiary’s portion of the costs and expenses of such development, operation, reclamation, clean-up or abandonment;

(N) encumbrances on assets or property (including oil sands property) securing: (I) all or any portion of the cost of acquisition (directly or indirectly), surveying, exploration, drilling, development, extraction, operation, production, construction, alteration, repair or improvement of all or any part of such assets or property and the plugging and abandonment of wells thereon, (II) all or any portion of the cost of acquiring (directly or indirectly), developing, constructing, altering, improving, operating or repairing any assets or property (or improvements on such assets or property) used or to be used in connection with such assets or property, whether or not located (or located from time to time) at or on such assets or property, (III) Indebtedness incurred by the Borrower or any of its Subsidiaries to provide funds for the activities set forth in clauses (I) and (II) above, provided such Indebtedness is incurred prior to, during or within two years after the completion of acquisition, construction or such other activities referred to in clauses (I) and (II) above, and (IV) Indebtedness incurred by the Borrower or any of its Subsidiaries to refinance Indebtedness incurred for the purposes set forth in clauses (I) and (II) above. Without limiting the generality of the foregoing, costs incurred after the date hereof with respect to clauses (I) or (II) above shall include costs incurred for all facilities relating to such assets or property, or to projects, ventures or other arrangements of which such assets or property form a part or which relate to such assets or property, which facilities shall include, without limitation, Facilities, whether or not in whole or in part located (or from time to time located) at or on such assets or property;

 

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(O) encumbrances granted in the ordinary course of business in connection with Financial Instrument Obligations of the Borrower and its Restricted Subsidiaries; and

(P) any extension, renewal, alteration, refinancing, replacement, exchange or refunding (or successive extensions, renewals, alterations, refinancings, replacements, exchanges or refundings) of all or part of any encumbrance referred to in the foregoing clauses; provided , however , that (i) such new encumbrance shall be limited to all or part of the property or assets which was secured by the prior encumbrance plus improvements on such property or assets and (ii) the Indebtedness, if any, secured by the new encumbrance is not increased from the amount of the Indebtedness secured by the prior encumbrance then existing at the time of such extension, renewal, alteration, refinancing, replacement, exchange or refunding, plus an amount necessary to pay fees and expenses, including premiums, related to such extensions, renewals, alterations, refinancings, replacements, exchanges or refundings;

(Q) liens or other encumbrances granted pursuant to Section 2.21 hereof;

and provided further that (I) in any event, the Borrower and any Restricted Subsidiary shall be entitled to give security that would otherwise be prohibited hereby so long as the aggregate Indebtedness outstanding and secured under this clause (I) and the aggregate Indebtedness outstanding and secured under Section 5.02(b)(i)(N) does not at the time of giving such security exceed an amount equal to 25% of the Section 6.01(f) Consolidated Net Tangible Assets (as defined in Section 6.01(f) hereof) of the Borrower at such time and (II) in no event shall the Borrower or any Restricted Subsidiary be entitled to give security that would otherwise be permitted by Section 5.02(b)(i)(N) if such security secures Indebtedness which exceeds an amount equal to 25% of the Section 6.01(f) Consolidated Net Tangible Assets (as defined in Section 6.01(f) hereof) of the Borrower at such time.

(ii) Transactions such as the sale (including any forward sale) or other transfer of (A) oil, gas, minerals or other resources of a primary nature, whether in place or when produced, for a period of time until, or in an amount such that, the purchaser will realize therefrom a specified amount of money or a specified rate of return (however determined), or a specified amount of such oil, gas, minerals, or other resources of a primary nature, or (B) any other interest in property of the character commonly referred to as a “production payment”, will not constitute secured indebtedness and will not result in the Borrower being required to secure the Borrowings.

(iii) In the event security has been provided to the Administrative Agent, the Lenders and the Issuing Banks in accordance with this Section 5.02(b) and the maximum principal amount of the Commitments is thereafter permanently reduced at any time or from time to time, the Borrower may request once in each calendar year, and the Administrative Agent, the Lenders and the Issuing Banks shall grant at the Borrower’s expense, discharges of security as will ensure that the remaining security secures, to the satisfaction of the Administrative Agent, the Lenders and the Issuing Banks acting reasonably, the maximum principal amount of Advances which are, or which may

 

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become, outstanding after giving effect to such permanent reduction in the total amount of the Commitments.

(c) Transfer of Assets . Except in the ordinary course of business, transfer or permit its Restricted Subsidiaries to transfer, for less than fair market value, assets to a corporation which would be a Subsidiary but for the fact that it has Publicly Traded Securities.

(d) Use of Proceeds . The Borrower shall use, and shall cause its Subsidiaries to use, the Proceeds of the Advances solely as set forth in Section 2.18 herein. Subject to the provisions of Section 2.18(b), the Borrower may utilize the proceeds of the Advances to, or to provide funds to any Subsidiary or to make a loan to any of its Affiliates (provided that such Affiliate is a Wholly-Owned Subsidiary) to, finance an offer to acquire (which shall include an offer to purchase securities, solicitation of an offer to sell securities, an acceptance of an offer to sell securities, whether or not the offer to sell was solicited, or any combination of the foregoing) outstanding securities of any Person (the “ Target ”) which constitutes a “take-over bid” (or any other similar term) pursuant to applicable securities legislation or other Applicable Law (a “ Take-over ”) on the terms set forth below:

The Borrower must either:

(i) prior to or concurrently with delivery to the Administrative Agent of any Notice of Borrowing or any Notice of Issuance, the proceeds of which are to be used to finance such Take-over, provide to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that the board of directors or like body of the Target, or the holders of the requisite number of securities of the Target as are required to approve such Take-over to ensure the successful completion of such Take-over under Applicable Law, has or have approved, accepted, or recommended to security holders acceptance of, the Take-over; or

(ii) follow the following steps:

(A) at least five (5) Business Days prior to the delivery to the Administrative Agent of any Notice of Borrowing or Notice of Issuance, intended to be used to finance such Take-over, the President or a Senior Financial Officer of the Borrower shall advise the Administrative Agent about the particulars of such Take-over in sufficient detail, and the Administrative Agent shall promptly advise an appropriate officer of each Lender of the particulars of such Take-over in sufficient detail to enable each such Lender to determine whether it has a conflict of interest if Advances from such Lender are used by the Borrower to finance such Take-over;

(B) within three (3) Business Days of being so advised by the Administrative Agent, each such Lender shall notify the Administrative Agent of such Lender’s determination as to whether a conflict of interest exists (such determination to be made by such Lender in the exercise of its sole discretion, having regard to such considerations as it deems appropriate); provided that in the event such Lender does not so notify the Administrative Agent within such three (3) Business Day period, such Lender shall be deemed to have notified the Administrative Agent that it has no such conflict of interest; and

 

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(C) the Administrative Agent shall promptly notify the President or a Senior Financial Officer of the Borrower of each such Lender’s determination.

In the event that any such Lender has such a conflict of interest (an “ Affected Lender ”), then upon the Administrative Agent so notifying the Borrower, the Affected Lender shall have no obligation to provide any Advances to finance such Take-over, notwithstanding any other provision of this Agreement to the contrary; provided however that each other relevant Lender which has, or is deemed to have, no such conflict of interest (a “ Non-Affected Lender ”) shall have an obligation, up to the amount of its Revolving Credit Commitment, to provide Advances to finance such Take-over, and Advances to finance such Take-over shall be provided by each Non-Affected Lender in accordance with the ratio, determined prior to the provision of any Advances to finance such Take-over, that the Commitment of such Non-Affected Lender bears to the aggregate of the Commitments of all the Non-Affected Lenders hereunder. If Advances are used to finance a Take-over and there are Affected Lenders, subsequent Advances shall be funded first by Affected Lenders, and subsequent repayments shall be applied first to Non-Affected Lenders, in each case, until such time as the proportion that the amount of the aggregate principal amount of the Advances made by each Non-Affected Lender bears to the amount of the aggregate principal amount of the Advances of all Lenders is equal to such proportion which would have been in effect but for the application of this Section 5.02(d).

ARTICLE VI

EVENTS OF DEFAULT

SECTION 6.01.  Events of Default . If any of the following events (“ Events of Default ”) shall occur and be continuing with respect to the Borrower:

(a) The Borrower shall fail to pay any principal of any Advance when the same becomes due and payable; or the Borrower shall fail to pay any interest on any Advance or make any other payment of fees or other amounts payable under this Agreement within three (3) Business Days after the same becomes due and payable; or

(b) Any representation or warranty made or deemed made by the Borrower herein or by the Guarantor in the Guaranty or by the Borrower or the Guarantor (or any of its officers) in connection with this Agreement or the Guaranty shall prove to have been incorrect in any material respect when made or deemed made; or

(c) (i) The Borrower shall fail to perform or observe any term, covenant or agreement contained in Section 5.01(b), (d) or (h) or 5.02; (ii) the Guarantor shall fail to perform or observe its covenant set forth in Section 7(c)(ii) of the Guaranty and such failure shall remain unremedied for five (5) Business Days; (iii) the Guarantor shall fail to perform any of its obligations under Section 1 of the Guaranty in respect of the Guaranteed Obligations (subject to the applicable grace period, if any, available to the Borrower under Section 6.01(a) above); or (iv) the Borrower or the Guarantor shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or the Guaranty, respectively, on its part to be performed or observed if such failure shall remain unremedied for 45 days after written notice thereof shall have been given to the Borrower or the Guarantor, respectively, by the Administrative Agent or any Lender; or

 

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(d) The Guarantor or any Section 6.01(d) Subsidiary (including the Borrower) (i) shall default in making payment when due of any Financing Debt (including all net obligations of the Guarantor or any Section 6.01(d) Subsidiary (including the Borrower) pursuant to currency, interest rate and commodity price hedging and swap agreements, but excluding borrowings under this Agreement) (“ Extended Financing Debt ”) in an amount in excess of the greater of $200,000,000 and two (2%) percent of Consolidated Net Worth and such default is not remedied by the Guarantor or such Section 6.01(d) Subsidiary (including the Borrower) or is not waived by the lender or counterparty in respect of such Extended Financing Debt (including the lessor under any Capital Lease) within two (2) Business Days or any longer grace or cure period that is available under applicable documentation to remedy such default, or (ii) causes or permits to exist any default or event of default under any agreement or agreements evidencing Extended Financing Debt if such default or event of default results in the acceleration of the payment of an aggregate amount of Extended Financing Debt in excess of the greater of $200,000,000 and two (2%) percent of Consolidated Net Worth.

The following term is used in this Section 6.01(d) as defined below:

Section 6.01(d) Subsidiary ” means, on any date, any corporation or other Person of which Voting Shares or other interests carrying more than 50% of the voting rights attached to all outstanding Voting Shares or other interests are owned, directly or indirectly, by or for the Guarantor and/or by or for any corporation in like relation to the Guarantor and includes any corporation in like relation to a Section 6.01(d) Subsidiary; provided , however , such term shall not include any corporations or other Persons (or their respective Section 6.01(d) Subsidiaries) which have Publicly Traded Securities where the aggregate amount of assets of all such corporations or other Persons does not exceed 20% of the Consolidated Assets of the Guarantor at the time and from time to time; or

(e) The Borrower, the Guarantor or any of its Material Subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Borrower, the Guarantor or any of its Material Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any material part of its property (other than any Non-Recourse Assets) and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for it or for any material part of its property (other than any Non-Recourse Assets)) shall occur; or the Borrower, the Guarantor or any of its Material Subsidiaries shall take any corporate action to authorize any of the actions set forth in this subsection (e); or

(f) Any final judgment or order (subject to no further right of appeal) is rendered against the Guarantor or any Material Guarantor Subsidiary (including the Borrower) for the payment of money in excess of the greater of $200,000,000 and two (2%) percent of Consolidated Net Worth (other than any such judgment or order in favor of a lender that is a Non-Recourse Creditor, in respect of which such lender’s recourse pursuant to such judgment or order or otherwise is limited to the specific Project in respect of which the debt which is the subject of such judgment or order was granted was

 

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incurred) and under which enforcement proceedings have commenced and have not been stayed, and which remains undischarged or unstayed for a period of 45 days; provided that any such final judgment or order rendered only with respect to a Material Guarantor Subsidiary which is not a Section 6.01(f) Restricted Subsidiary shall not be an Event of Default if the Guarantor would (in the reasonable opinion of the Required Lenders as evidenced by their signatures on a confirmation thereof) be able to satisfy the financial tests set forth in the immediately succeeding sentence, calculated as of the date of such final judgment or order, which tests shall be conducted after provision has been made for the payment of such final judgment or order. On any date of determination, pursuant to the immediately preceding sentence, (a) the Guarantor shall have, as of such date, a Consolidated Debt to Consolidated Capitalization Ratio that does not exceed 60%, and (b) as of such date,

(i) the aggregate Financing Debt of all Material Guarantor Subsidiaries which are Non-Guarantor Subsidiaries, on a consolidated basis; plus , without duplication

(ii) the aggregate Guarantor Indebtedness secured by security interests over Restricted Property given by the Guarantor or any Material Guarantor Subsidiary (including the Borrower) in favor of Non-Guarantor Subsidiaries which are not Material Guarantor Subsidiaries; plus , without duplication

(iii) the aggregate Financing Debt of Finance Co.; plus , without duplication

(iv) the amount by which the aggregate Financing Debt of any Subsidiary (as defined in Section 1.01 hereof) of the Guarantor (other than Finance Co. or a Material Guarantor Subsidiary) exceeds an aggregate of $750,000,000 and which Financing Debt is guaranteed by the Guarantor or any Material Guarantor Subsidiary (whether directly or indirectly through Canadian corporate law applicable to Canadian unlimited liability companies);

does not exceed 17.5% of Consolidated Tangible Assets as of such date; provided that, for the purpose of calculating the aggregate Financing Debt referred to in (i) above or the aggregate Section 6.01(f) Guarantor Indebtedness referred to in (ii) above, there shall be excluded (A) the Financing Debt of any Public Material Subsidiary or (B) any such Section 6.01(f) Guarantor Indebtedness secured by security interests over Restricted Property of any Public Material Subsidiary for so long as, in regard to any case referred to in (A) or (B), Publicly Traded Securities of the relevant Public Material Subsidiary are listed on any stock exchange and for 120 days (or such longer period as the Required Lenders may allow in their sole discretion) after the date that Publicly Traded Securities of such Public Material Subsidiary cease to be so listed.

The following terms are used in this Section 6.01(f) as defined below:

Section 6.01(f) Consolidated Net Tangible Assets ” means, with respect to any Person at any time, the total amount of assets of such Person and its Section 6.01(f) Subsidiaries on a Consolidated basis (less applicable reserves and other properly deductible items) after deducting therefrom:

(a) all current liabilities (excluding any indebtedness classified as a current liability and any current liabilities which are by their terms extendible or

 

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renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed);

(b) all goodwill, trade names, trademarks, patents, unamortized debt discounts and expenses and other like intangibles; and

(c) appropriate adjustments on account of minority interests of other Persons holding shares of the Section 6.01(f) Subsidiaries of such Person,

in each case, as shown on the most recent annual audited or quarterly unaudited Consolidated balance sheet of such Person computed in accordance with GAAP.

Section 6.01(f) Guarantor Indebtedness ” means indebtedness created, issued or assumed for borrowed funds, or for the unpaid purchase price of property of the Guarantor or a Section 6.01(f) Restricted Subsidiary, and includes, without duplication, such indebtedness guaranteed by the Guarantor or a Section 6.01(f) Restricted Subsidiary.

Section 6.01(f) Restricted Subsidiary ” means, on any date, any Section 6.01(f) Subsidiary which owns at the time Restricted Property; provided , however , such term shall not include a Section 6.01(f) Subsidiary of the Guarantor if the amount of the Guarantor’s share of Section 6.01(f) Shareholders’ Equity of such Section 6.01(f) Subsidiary constitutes, at the time of determination, less than 2% of the Section 6.01(f) Consolidated Net Tangible Assets of the Guarantor.

Section 6.01(f) Shareholders’ Equity ” means, with respect to a Section 6.01(f) Subsidiary, the sum of (a) the shareholders’ equity or partners’ equity of such Section 6.01(f) Subsidiary computed in accordance with GAAP and (b) indebtedness created, issued or assumed by such Section 6.01(f) Subsidiary to the Borrower for borrowed funds, which indebtedness by its terms is stated to be subordinated; provided that the total of the book value of issued and fully paid preferred shares shall be included and appraisal increments or appraisal surpluses shall not be included in Section 6.01(f) Shareholders’ Equity.

Section 6.01(f) Subsidiary ” means, on any date, any corporation or other Person of which Voting Shares or other interests carrying more than 50% of the voting rights attached to all outstanding Voting Shares or other interests are owned, directly or indirectly, by or for the Guarantor and/or by or for any corporation in like relation to the Guarantor and includes any corporation in like relation to a Section 6.01(f) Subsidiary; provided , however , such term shall not include any corporations or other Persons (or their respective Section 6.01(f) Subsidiaries) which have Publicly Traded Securities where the aggregate amount of assets of all such corporations or other Persons does not exceed 20% of the Consolidated Assets of the Guarantor at the time and from time to time; or

(g) Any final non-monetary judgment or order (subject to no further right of appeal) shall be rendered against the Borrower or any of its Material Subsidiaries that could be reasonably expected to have (i) a Material Adverse Effect, and there shall be any period of ten (10) consecutive days during which a stay of enforcement of such judgment or order shall not be

 

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in effect or (ii) an adverse effect on the legality, validity or enforceability of the Loan Documents; or

(h) (i) The Guarantor shall cease to legally and beneficially own, directly or indirectly, 100% of the Voting Shares of the Borrower or (ii) any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of the Borrower; or

(i) Any material provision of this Agreement or the Guaranty shall for any reason cease to be valid and binding on or enforceable against the Borrower or the Guarantor, as applicable, or such party shall so state in writing; or

(j) Any Loan Party or any of its respective ERISA Affiliates shall incur, or, in the reasonable opinion of the Required Lenders, shall be reasonably likely to incur, liability in excess of $200,000,000 in the aggregate as a result of one or more of the following: (i) the occurrence of any ERISA Event; (ii) the partial or complete withdrawal of any Loan Party or any of its ERISA Affiliates from a Multiemployer Plan; or (iii) the reorganization or termination within the meaning of Title IV of ERISA of a Multiemployer Plan;

then, and in any such event, the Administrative Agent (i) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the obligation of each Lender to make Advances (other than a Letter of Credit Advance made by an Issuing Bank or a Lender pursuant to Section 2.04(c) and a Swing Line Advance made by a Lender pursuant to Section 2.03(a)) and of each Issuing Bank to issue Letters of Credit to be terminated, whereupon the same shall forthwith terminate, provided , however , that any such event (except an event specified in Section 6.01(a), (e) and (i)) shall not permit the Lenders to terminate their Commitments if and for so long as (A) no Advances or Letters of Credit are outstanding hereunder and (B) the Borrower continues to pay the fees specified in Section 2.05(a), and (ii) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the Advances, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon the Advances, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided, further however , in the event of an actual or deemed entry of an order for relief with respect to the Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to make Advances (other than a Letter of Credit Advance made by an Issuing Bank or a Lender pursuant to Section 2.04(c) and a Swing Line Advance made by a Lender pursuant to Section 2.03(a)) and of each Issuing Bank to issue Letters of Credit shall automatically be terminated, (B) by notice to each party required under the terms of any agreement in support of which a Standby Letter of Credit is issued, request that all obligations under such agreement be declared to be due and payable and (C) the Advances, all such interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower. Notwithstanding any other provision in this Agreement to the contrary, the occurrence and continuance of any of the events described in this Section 6.01 (except any event specified in Section 6.01 (a), (e) or (i)) shall not be considered an Event of Default hereunder or under any of the other Loan Documents if and for so long as (i) no Advances or Letters of Credit are outstanding hereunder and (ii) the Borrower continues to pay the fees specified in Section 2.05(a).

 

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ARTICLE VII

THE ADMINISTRATIVE AGENT

SECTION 7.01.  Appointment and Authority  Each Lender Party (in its capacities as a Lender, the Swing Line Bank (if applicable) and an Issuing Bank (if applicable)) hereby irrevocably appoints Citibank to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent and the Lender Parties, and the Borrower shall not have rights as a third-party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.

SECTION 7.02.  Rights as a Lender . The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender Party as any other Lender Party and may exercise the same as though it were not the Administrative Agent, and the term “Lender Party” or “Lender Parties” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for, and generally engage in any kind of business with, the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lender Parties.

SECTION 7.03.  Exculpatory Provisions . (a) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent:

(i) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;

(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its reasonable opinion or on the reasonable advice of counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any debtor relief law or that may effect a forfeiture,

 

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modification or termination of property of a Defaulting Lender in violation of any debtor relief law; and

(iii) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.

(b) The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 8.01 and 6.01), or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Administrative Agent in writing by the Borrower or a Lender Party.

(c) The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article II or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.

SECTION 7.04.  Reliance by Administrative Agent . The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of an Advance, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or Issuing Bank prior to the making of such Advance or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

SECTION 7.05.  Indemnification . The Lender Parties severally agree to indemnify the Administrative Agent (in such capacity and to the extent not reimbursed by the Borrower), ratably according to the respective amounts of their Revolving Credit Commitments, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or

 

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disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against the Administrative Agent in any way relating to or arising out of any Document or any action taken or omitted thereby under any Document (collectively, the “ Indemnified Costs ”), provided that no Lender Party shall be liable for any portion of the Indemnified Costs resulting from the Administrative Agent’s gross negligence or willful misconduct. Without limitation of the foregoing, each Lender Party agrees to reimburse the Administrative Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including counsel fees) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, any Document, to the extent that the Administrative Agent is not reimbursed for such expenses by the Borrower. In the case of any investigation, litigation or proceeding giving rise to any Indemnified Costs, this Section 7.05 applies whether any such investigation, litigation or proceeding is brought by the Administrative Agent, either Syndication Agent, either Documentation Agent, either Lead Arranger, any Lender Party or a third party. The respective obligations of the Lenders under this Section are several and not joint and no Lender shall be responsible for the failure of any other Lender to satisfy its obligations hereunder.

SECTION 7.06.  Resignation of Administrative Agent . (a) The Administrative Agent may at any time give written notice of its resignation to the Lender Parties and the Borrower and may be removed at any time with or without cause by the Required Lenders. Upon receipt of any such notice of resignation or removal, the Required Lenders shall have the right with the prior approval of the Borrower so long as no Default shall have occurred and be continuing (which approval will not be unreasonably withheld or delayed), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 60 days after the retiring Administrative Agent gives notice of its resignation or the Required Lenders’ removal of the retiring Administrative Agent (or such earlier day as shall be agreed by the Required Lenders) (the “ Resignation Effective Date ”), then the retiring Administrative Agent may (but shall not be obligated to), on behalf of the Lender Parties, appoint a successor Administrative Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.

(b) With effect from the Resignation Effective Date (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lender Parties hereunder, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender Party directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Administrative Agent, and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 8.04 shall continue in effect for the benefit of such

 

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retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent.

SECTION 7.07.  Delegation of Duties . The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the Commitments as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.

SECTION 7.08.  Non-Reliance on Administrative Agent and Other Lenders . Each Lender Party acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender Party or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender Party also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender Party or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

SECTION 7.09.  No Other Duties, etc . Anything herein to the contrary notwithstanding, none of the Lead Arrangers, Syndication Agents or Documentation Agents listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent or a Lender Party hereunder.

ARTICLE VIII

MISCELLANEOUS

SECTION 8.01.  Amendments, Etc . No amendment or waiver of any provision of this Agreement or the Guaranty, nor consent to any departure by the Borrower or the Guarantor, as the case may be, therefrom, shall in any event be effective unless the same shall be in writing and signed by the Required Lenders (unless specifically set forth herein or therein), the Administrative Agent and the Borrower or the Guarantor, as the case may be, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided , however , (x) no amendment, waiver or consent shall, unless in writing and signed by all the Lenders, do any of the following: (a) waive (i) any of the conditions specified in Section 3.01 or (ii) a condition precedent to a Borrowing if such condition relates to Section 6.01(a) or (i), (b) change the percentage of the Commitments or of the aggregate unpaid principal amount of the Advances, or the aggregate Available Amount of outstanding Letters of Credit, or the number of Lenders, that shall be required for the Lenders or any of them to take any action hereunder, (c) amend or waive any of the terms contained in

 

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the proviso to Section 8 of the Guaranty or (d) amend this Section 8.01 and (y) no amendment, waiver or consent shall, unless in writing and signed by each Lender directly affected thereby, do any of the following: (a) increase the Revolving Credit Commitments, the Letter of Credit Sub-Commitments or Swing Line Sub-Commitments or subject the Lenders, the Swing Line Bank or the Issuing Banks to any additional obligations, (b) reduce the principal of, or rate of interest on, the Advances or any fees or other amounts payable hereunder, (c) postpone any date fixed for any payment of principal of, or interest on, the Advances or any fees or other amounts payable to the Lenders hereunder, or (d) release the Guarantor from any of its obligations under Sections 1 through 4 and 11 of the Guaranty; provided further that no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Bank or each Issuing Bank, as the case may be, in addition to the Lenders required above to take such action, affect the rights or obligations of the Swing Line Bank or of such Issuing Bank, as the case may be, under this Agreement; provided further that no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above to take such action, affect the rights or duties of the Administrative Agent under this Agreement or the Guaranty.

SECTION 8.02.  Notices, Etc . (a)  Notices Generally . Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in paragraph (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows:

(i) if to the Borrower, to it at to both of the following addresses: at 1800, 855 – 2 nd Street S.W., Calgary, Alberta, T2P 2S5, Canada, Attention: Treasurer, facsimile no. (403) 645-4613 and at Republic Plaza, 370 17 th Street, Suite 1700, Denver, Colorado, 80202, USA, Attention: Vice-President, Finance, facsimile no. (720) 876-6537;

(ii) if to the Administrative Agent, to Citibank, N.A. at 1615 Brett Road, Building #3, New Castle, Delaware 19720, Attention of Bank Loan Syndications; (Facsimile No. (212) 994-0961; Telephone No. (302) 323-5499);

(iii) if to any Issuing Bank, to it at the address provided in writing to the Administrative Agent and the Borrower at the time of its appointment as an Issuing Bank hereunder;

(iv) if to a Lender, to it at its address (or facsimile number) set forth in its Administrative Questionnaire.

Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices delivered through electronic communications, to the extent provided in paragraph (b) below, shall be effective as provided in said paragraph (b).

(b) Electronic Communications . Notices and other communications to the Lender Parties hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender Party pursuant to Article II if such Lender Party has notified the Administrative Agent that it is incapable of receiving notices under such Article

 

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by electronic communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.

Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.

(c) Change of Address, etc . Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties hereto.

(d) Platform .

(i) The Borrower agrees that the Administrative Agent may, but shall not be obligated to, make the Communications (as defined below) available to the Lender Parties by posting the Communications on Debt Domain, Intralinks, Syndtrak or a substantially similar electronic transmission system (the “ Platform ”).

(ii) The Platform is provided “as is” and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “ Agent Parties ”) have any liability to any Loan Party, any Lender Party or any other Person or entity for damages of any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Party’s or the Administrative Agent’s transmission of communications through the Platform except to the extent a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative Agent or such Related Party acted with gross negligence or willful misconduct in connection with such transmission. “ Communications ” means, collectively, any notice, demand, communication, information, document or other material that any Loan Party provides to the Administrative Agent pursuant to any Loan Document or the transactions contemplated therein which is distributed to the Administrative Agent or any Lender Party by means of electronic communications pursuant to this Section, including through the Platform.

SECTION 8.03.  No Waiver; Remedies . No failure on the part of any Lender Party or the Administrative Agent to exercise, and no delay in exercising, any right under any Document or Loan

 

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Document shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

SECTION 8.04.  Costs and Expenses . (a) The Borrower agrees to pay promptly upon presentation of a statement of account all reasonable costs and out-of-pocket expenses of the Administrative Agent, the Syndication Agents, the Documentation Agents and the Lead Arrangers in connection with the preparation, execution, delivery, administration, modification and amendment of this Agreement, the Guaranty and the other documents to be delivered hereunder, including, without limitation, (i) all due diligence, syndication (including printing, distribution and bank meetings), transportation, computer, duplication, appraisal, consultant, audit and insurance expenses and (ii) the reasonable and documented fees and expenses of a single counsel for the Administrative Agent with respect thereto and with respect to advising the Administrative Agent as to its rights and responsibilities under this Agreement and the Guaranty. The Borrower further agrees to pay promptly on demand all reasonable and documented costs and out-of-pocket expenses of the Administrative Agent and the Lender Parties, if any (including, without limitation, reasonable and documented counsel fees and expenses (which shall be limited to one firm of counsel for the Administrative Agent and the Lender Parties and, if necessary, one firm of local or regulatory counsel in each appropriate jurisdiction, in each case for the Administrative Agent and the Lender Parties (and, in the case of an actual or perceived conflict of interest, where the Person affected by such conflict informs the Borrower of such conflict, of another firm of counsel for such affected Person))), in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of any Documents, including, without limitation, reasonable and documented fees and expenses of counsel (as described above) in connection with the enforcement of rights under this Section 8.04(a). The Borrower further agrees to pay on demand all reasonable costs and out-of-pocket expenses of each Issuing Bank in connection with the modification and amendment of any L/C Related Document, including, without limitation, the reasonable fees and expenses of counsel for such Issuing Bank with respect thereto and with respect to advising such Issuing Bank as to its rights and responsibilities under the L/C Related Documents.

(b) In addition to any liability of the Borrower under any other provisions of this Agreement, the Borrower agrees to indemnify and hold harmless the Administrative Agent, the Lead Arrangers and each Lender Party and each of their respective Affiliates and their officers, directors, employees, agents and advisors (each, an “ Indemnified Party ”) from and against any and all claims, damages, losses, liabilities and expenses (including without limitation, reasonable and documented fees and disbursements of a counsel, which shall be limited to one firm of counsel for the Indemnified Parties and, if necessary, one firm of local or regulatory counsel in each appropriate jurisdiction, in each case for the Indemnified Parties (and, in the case of an actual or perceived conflict of interest, where the Person affected by such conflict informs the Borrower of such conflict, of another firm of counsel for such affected Person)), that may be incurred by or asserted or awarded against any Indemnified Party (including, without limitation, in connection with any investigation, litigation or proceeding or the preparation of a defense in connection therewith), in each case, arising out of or in connection with or by reason of this Agreement, except (i) to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnified Party’s bad faith, gross negligence or willful misconduct and (ii) to any claim, damage, loss, liability or expense that does not involve an act or omission of the Borrower or its affiliates and that is brought by an Indemnified Party against any other Indemnified Party (other than any claim, actions, suits, inquiries, litigation, investigation or proceeding against any of the Lead Arrangers, or any administrative agent, collateral agent or other agent in their capacities as such). In the

 

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case of an investigation, litigation or other proceeding to which the indemnity in this paragraph applies, such indemnity will be effective whether or not such investigation, litigation or proceeding is brought by the Borrower, any of its directors, security holders or creditors, an Indemnified Party or any other person or an Indemnified Party is otherwise a party thereto . The Borrower also agrees not to assert any claim against any Agent, any Lead Arranger, any Lender Party, any of their respective Affiliates, or any of their respective directors, officers, employees, attorneys and agents, on any theory of liability, for special, indirect, consequential or punitive damages arising out of or otherwise relating to any of the Documents, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Advances.

(c) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made by the Borrower to or for the account of a Lender other than on the final day of the Interest Period for such Advance, as a result of a payment, prepayment or Conversion pursuant to this Agreement or acceleration of the maturity of the Advances pursuant to Section 6.01, the Borrower shall, promptly upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance. The amount payable to the Administrative Agent hereunder shall be set forth in a certificate delivered by the applicable Lender to the Administrative Agent and the Borrower (which certificate shall contain reasonable details concerning the calculation of the amount payable) and shall be prima facie evidence thereof, in the absence of manifest error.

(d) Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of the Borrower contained in Sections 2.12 and 2.15 and in this 8.04 shall survive the payment in full of principal, interest and all other amounts payable hereunder.

(e) The Lenders severally agree to indemnify each Issuing Bank (in its capacity as such and to the extent not reimbursed by the Borrower), ratably according to the respective amounts of their Revolving Credit Commitments, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against such Issuing Bank, solely in its capacity as an Issuing Bank, in any way relating to or arising out of the Loan Documents or any action taken or omitted by such Issuing Bank under the Loan Documents; provided , however , that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Issuing Bank’s gross negligence or willful misconduct. Without limitation of the foregoing, each Lender agrees to reimburse such Issuing Bank promptly upon demand for its ratable share of any costs and expenses (including, without limitation, fees and expenses of counsel) payable by the Borrower to such Issuing Bank under Section 8.04, to the extent that such Issuing Bank is not promptly reimbursed for such costs or expenses by the Borrower. In the case of any investigation, litigation or proceeding giving rise to any amounts indemnifiable hereunder, this Section 8.04(e) applies whether such investigation, litigation or proceeding is brought by the Administrative Agent, any Lender or Issuing Bank or any third party. The respective obligations of the Lenders under this Section are several and not joint and no Lender shall be responsible for the failure of any other Lender to satisfy is obligations hereunder.

 

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SECTION 8.05.  Right of Set-off . (a) Upon (i) the occurrence and during the continuance of any Event of Default and (ii) the making of the request or the granting of the consent specified by Section 6.01 by the Required Lenders to authorize the Administrative Agent to declare the Advances due and payable pursuant to the provisions of Section 6.01, each Lender Party and each of its respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Lender or such Affiliate to or for the credit or the account of the Borrower against any and all of the obligations of the Borrower now or hereafter existing under this Agreement, whether or not such Lender Party shall have made any demand under this Agreement and although such obligations may be unmatured. Each Lender Party agrees promptly to notify the Borrower after any such set-off and application, provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Lender Party and its respective Affiliates under this Section 8.05 are in addition to other rights and remedies (including, without limitation, other rights of set-off) that such Lender Party and its respective Affiliates may have.

(b) To the extent permitted by applicable law, at any time a Lender is a Defaulting Lender pursuant to clauses (i) or (ii) of the definition thereof, or while a Lender Insolvency Event exists with respect to such Lender or its Lender Parent, the Borrower is hereby authorized without prior notice to such Defaulting Lender or to any other person, such notice being expressly waived by such Defaulting Lender, to set-off and apply any and all deposits (general and special but excluding security deposits) held by such Defaulting Lender (or any Subsidiary of such Defaulting Lender) to or for the credit of or the account of the Borrower against and on account of the Borrowings and any accrued interest owing by the Borrower to such Defaulting Lender under this Agreement, regardless of whether the obligations in respect of such deposits or Borrowings are contingent or unmatured. The Borrower shall provide the Administrative Agent and the Defaulting Lender with prompt notice of the exercise of any of its rights under this Section; provided that

 

  (i) any Centralized Banking Arrangements shall take priority over the Borrower’s rights under this Section;

 

  (ii) prior to receipt of such notice by the Administrative Agent, the Administrative Agent shall not be obligated to reflect such set-off in the allocation of its payments to Lenders under Section 2.14;

 

  (iii) after receipt of such notice by the Administrative Agent, such Defaulting Lender irrevocably authorizes the Administrative Agent to rely on such notice and to allocate payments from the Borrower to the Lenders in a manner which gives effect to such set-off (notwithstanding any provisions in Section 2.14 to the contrary); and

the Borrower agrees to indemnify the Administrative Agent and its Affiliates, directors, officers, agents and employees from any claims made against any of them by a Defaulting Lender in connection with this Section 8.05(b), all in accordance with Section 11.2 (and for such purposes a claim from a Defaulting Lender shall be deemed to be a third party claim).

SECTION 8.06. Binding Effect . This Agreement shall become effective (other than Section 2.01, which shall only become effective upon satisfaction of the conditions precedent set forth in Section 3.01) when it shall have been executed by the Borrower, the Administrative Agent, the

 

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Syndication Agents, the Documentation Agents and each Lead Arranger, and when the Administrative Agent shall have been notified by each Initial Lender, Initial Issuing Bank and the Swing Line Bank that such Initial Lender, Initial Issuing Bank and Swing Line Bank has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, the Administrative Agent, the Syndication Agents, the Documentation Agents, the Lead Arrangers and each Lender Party and their respective successors and assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of all Lenders (and any other attempted assignment or transfer by the Borrower shall be null and void).

SECTION 8.07. Assignments and Participations . (a)  Successors and Assigns Generally . No Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of paragraph (b) of this Section, (ii) by way of participation in accordance with the provisions of paragraph (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of paragraph (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in paragraph (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b) Assignments by Lenders . Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Advances at the time owing to it); provided that (in each case with respect to any Facility) any such assignment shall be subject to the following conditions:

(i) Minimum Amounts .

(A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and/or the Advances at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and

(B) in any case not described in paragraph (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Advances outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Advances of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “ Trade Date ” is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than $10,000,000 or an integral multiple of $1,000,000 in excess thereof unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed).

(ii) Proportionate Amounts . Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Advance or the Commitment assigned.

 

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(iii) Required Consents . No consent shall be required for any assignment except to the extent required by paragraph (b)(i)(B) of this Section and, in addition:

(A) the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (x) an Event of Default has occurred and is continuing at the time of such assignment, or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;

(B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of the Revolving Credit Commitments if such assignment is to a Person that is not a Lender with a Commitment in respect of such Facility, an Affiliate of such Lender or an Approved Fund with respect to such Lender; and

(C) the consent of each Issuing Bank and Swing Line Bank (such consent not to be unreasonably withheld or delayed) shall be required for any assignment in respect of the Revolving Credit Commitments.

(iv) Assignment and Assumption . The parties to each assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption, together with a processing and recordation fee of $3,500; provided that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.

(v) No Assignment to Certain Persons . No such assignment shall be made to (A) the Borrower or any of the Borrower’s Affiliates or Subsidiaries or (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B).

(vi) No Assignment to Natural Persons . No such assignment shall be made to a natural Person.

(vii) Certain Additional Payments . In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Advances previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, each Issuing Bank, each Swing Line Bank and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Advances and participations in Letters of Credit and Swing Line Advances in

 

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accordance with its Pro Rata Share. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 2.12, 2.15 and 8.04 and subject to the obligations of Section 7.05 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided , that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (d) of this Section.

(c) Register . The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at one of its offices in the United States a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Advances owing to, each Lender pursuant to the terms hereof from time to time (the “ Register ”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

(d) Participations . Any Lender may at any time, without the consent of, or notice to, the Borrower, the Administrative Agent, any Issuing Bank or any Swing Line Bank, sell participations to any Person (other than a natural Person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Advances owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Borrower, the Administrative Agent and Lender Parties shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 8.05 with respect to any payments made by such Lender to its Participant(s). Each Lender shall, on behalf of the Borrower, maintain at one of its offices a register for the recordation of the names and addresses of its Participants, and the amount and terms of its participation; provided that no Lender shall be required to disclose or share the information contained in such register with the Borrower or any other person, except as required by Applicable Law.

 

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Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in clause (y) of the first proviso in Section 8.01 that affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.12 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant agrees to be subject to the provisions of Section 2.17 as if it were an assignee under paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 8.05 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.15 as though it were a Lender.

(e)  Limitations upon Participant Rights . A Participant shall not be entitled to receive any greater payment under Sections 2.12 or 2.15 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. A Participant that is organized under the laws of a jurisdiction outside of the United States shall not be entitled to the benefits of Section 2.15 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 2.15(e) as though it were a Lender.

(f) Certain Pledges . Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other central banking authority; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

(h) Each Issuing Bank may assign to an Eligible Assignee its rights and obligations or any portion of the undrawn Letter of Credit Commitment at any time; provided , however , that (i) the amount of the Letter of Credit Commitment of the assigning Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $1,000,000 or an integral multiple of $1,000,000 in excess thereof, and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption, together with a processing and recordation fee of $3,500.

SECTION 8.08.  Confidentiality; Patriot Act . Each of the Administrative Agent, the Syndication Agents, the Documentation Agents, the Lead Arrangers and the Lender Parties agree to maintain the confidentiality of the Confidential Information, except that Confidential Information may be disclosed (a) to its Affiliates and to its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Confidential Information and instructed to keep such Confidential Information confidential); (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners, with respect to which such Person shall seek the confidential treatment of such Confidential Information); (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process; (d) to any other party hereto; (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or

 

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any other Loan Document or the enforcement of rights hereunder or thereunder; (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement, or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder; (g) on a confidential basis, to (i) with the consent of the Borrower, any rating agency in connection with rating the Borrower or its Subsidiaries or the indebtedness under this Agreement or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the indebtedness under this Agreement; or (h) otherwise with the consent of the Borrower.

Each Lender that is subject to the Patriot Act and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in accordance with the Patriot Act.

SECTION 8.09.  No Liability of the Issuing Banks . The Borrower assumes all risks of the acts or omissions of any beneficiary or transferee of any Letter of Credit with respect to its use of such Letter of Credit. Neither any Issuing Bank nor any of its Affiliates, nor any of their officers, directors, employees, agents or advisors shall be liable or responsible for: (a) the use that may be made of any Letter of Credit or any acts or omissions of any beneficiary or transferee in connection therewith; (b) the validity, sufficiency or genuineness of documents, or of any endorsement thereon, even if such documents should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) payment by such Issuing Bank against presentation of documents that do not comply with the terms of a Letter of Credit, including failure of any documents to bear any reference or adequate reference to the Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make payment under any Letter of Credit, except that the Borrower shall have a claim against such Issuing Bank, and such Issuing Bank shall be liable to the Borrower, to the extent of any direct, but not consequential, damages suffered by the Borrower that the Borrower proves were caused by (i) such Issuing Bank’s willful misconduct or gross negligence in determining whether documents presented under any Letter of Credit comply with the terms of such Letter of Credit or (ii) such Issuing Bank’s willful failure to make lawful payment under a Letter of Credit after the presentation to it of a draft and certificates strictly complying with the terms and conditions of such Letter of Credit. In furtherance and not in limitation of the foregoing, such Issuing Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary.

SECTION 8.10.  Governing Law . This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.

SECTION 8.11.  Extensions of Termination Date  (a) The Borrower may, at any time, but in any event not more than once in any calendar year, by delivering to the Administrative Agent a written extension request, request those Lenders which have not become Declining Lenders pursuant to this Section 8.11 (except to the extent Section 8.11(h) applies) (in this Section 8.11, the “ Requested Lenders ”) to issue a Notice of Extension to extend the then current Termination Date with respect to the Commitments of such Requested Lenders to a date specified therein (each, an “ Extended Termination Date ”), which Extended Termination Date shall be not later than five (5) years from the date (in this

 

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Section 8.11, the “ Extension Date ”) which is 90 days after the date of such extension request. For the avoidance of doubt, at the time of the first request, if any, made by the Borrower, all Lenders shall be Requested Lenders.

(b) Upon receipt from the Borrower of such written extension request, the Administrative Agent shall forthwith deliver to each Requested Lender a copy of such request, and each Requested Lender shall, within 30 days after the date the Administrative Agent receives such request from the Borrower, advise the Administrative Agent in writing as to whether such Requested Lender will agree to extend the then current Termination Date in respect of its Commitment by delivering to the Administrative Agent a notice in substantially the form of Exhibit F hereto (each such notice being an “ Extension Notice ”); provided that, if any such Requested Lender shall fail to so advise the Administrative Agent within such 30 day period, then such Requested Lender shall be deemed to have denied such extension request. The determination of each Requested Lender as to whether or not to extend the Termination Date shall be made by each such Requested Lender in its sole discretion.

(c) Within five days after the expiry of the aforementioned 30 day period, the Administrative Agent shall:

(i) if (A) all Requested Lenders are in agreement with delivering a notice granting or not granting such extension request (the “ Borrower Extension Notice ”); or (B) less than all Requested Lenders are in agreement with delivering the Borrower Extension Notice, but, subject to Section 8.11(h)(ii), Requested Lenders having Commitments which, in aggregate, represent 66  2 3 % or more of all outstanding Commitments of all Requested Lenders are in agreement with delivering the Borrower Extension Notice; (each Requested Lender being in agreement with delivering the Borrower Extension Notice being an “ Extending Lender ” for the purposes of this Section 8.11), deliver to the Borrower (with a copy to each Extending Lender) the Borrower Extension Notice on behalf of all Extending Lenders, executed by the Administrative Agent and, in the circumstance where not all Requested Lenders are Extending Lenders, advise the Borrower of (I) which Requested Lenders are not in agreement with extending the Termination Date (in this Section 8.11, each a “ Declining Lender ”); and (II) the amount of each Declining Lender’s Commitments and Advances as at such date; or

(ii) if neither of the conditions in Sections 8.11(c)(i)(A) or (B) shall have been met, notify the Borrower that the extension request has not been approved by Requested Lenders which, subject to Section 8.11(h)(ii), have Commitments which, in aggregate, represent at least 66  2 3 % of all outstanding Commitments of all Requested Lenders (including therein the identity of the Requested Lenders which are not in agreement with extending the Termination Date and the amount of each such Requested Lender’s Commitments and Advances at such date) and has therefore been denied.

The failure of the Administrative Agent within the aforementioned five day period to deliver the Borrower Extension Notice, as provided in Section 8.11(c)(i) above, shall be deemed to be a notification by the Administrative Agent to the Borrower that the Requested Lenders have denied the extension request, and, in such circumstances, the Termination Date shall not be extended for any of the Requested Lenders.

 

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(d) Upon delivery by the Administrative Agent to the Borrower of Borrower Extension Notice pursuant to Section 8.11(c)(i), the Termination Date for all Extending Lenders shall be extended to the Extended Termination Date specified in the relevant extension request.

(e) If in any instance the Borrower Extension Notice has been delivered in circumstances in which not all of the Requested Lenders are Extending Lenders, then, on or prior to the relevant Extension Date:

(i) the Borrower may require any Declining Lender in respect of the relevant extension request to (and such Declining Lender shall thereupon become obligated to) assign all or part of its rights, benefits and interests under the Loan Documents (for purposes of this Section 8.11, the “ Assigned Interests ”) to:

(A) any Extending Lenders which have agreed to increase their Commitments and purchase the Assigned Interests; and

(B) to the extent the Assigned Interests are not assigned to Extending Lenders in accordance with paragraph (A) above, any financial or other institutions selected by the Borrower and acceptable to the Administrative Agent and the Issuing Banks, acting reasonably.

The Borrower shall provide the Administrative Agent with written notice of its desire to proceed under this Section 8.11(e)(i) (which notice the Administrative Agent shall promptly provide to each Extending Lender), and the Extending Lenders shall be entitled to purchase such of the Assigned Interests as they may request ( pro rata , in proportion to the Commitments of those Extending Lenders wishing to purchase Assigned Interests, or otherwise as such Extending Lenders may agree) by written notice to the Administrative Agent and the Borrower within 10 days after receipt of such notice, before any Assigned Interests may be assigned to third party financial or other institutions. Such assignments, in any event, shall be effective upon:

(C) execution of an agreement substantially in the form of Exhibit C;

(D) payment to the relevant Declining Lender (in immediately available funds) by the relevant assignee of an amount equal to the aggregate principal amount of all Advances (and accrued and unpaid interest thereon to the effective date of such assignment and all fees and other amounts) owed to that Declining Lender under this Agreement together with all other amounts payable hereunder by the Borrower to such Declining Lender in regard to the Assigned Interests;

(E) payment by the relevant assignee to the Administrative Agent (for the Administrative Agent’s own account) of the transfer fee contemplated in Section 8.07;

(F) provision satisfactory to such Declining Lender (acting reasonably) being made for the indemnification or release of such Declining Lender from its obligations relating to any Letters of Credit or Swing Line Borrowings which form part of the Assigned Interests.

 

Alenco - Amended and Restated Credit Agreement

83


Upon such assignment and transfer becoming effective, the Declining Lender shall have no further right, interest, benefit or obligation hereunder to the extent of the Assigned Interests assigned by that Lender but shall continue to be entitled to the benefits of Sections 2.12, 2.15 and 8.04 and subject to the obligations of Section 7.05 with respect to facts and circumstances occurring prior to the effective date of such assignment, and each assignee thereof shall succeed to the position of such Lender to the extent of the portion of the Assigned Interests acquired by such assignee as if the assignee was an original Lender hereunder in regard thereto in the place and stead of such Declining Lender; and

(ii) to the extent that the Borrower has not caused any Declining Lenders in respect of such extension request to assign their respective rights and interests to one or more Extending Lenders and/or other financial or other institutions as provided in paragraph (i) above, the Borrower may, at its option, notwithstanding any other provisions hereof, but only if no Default then exists, by further notice to the Administrative Agent, repay to such Declining Lenders all aggregate principal amount of all Advances owed to such Declining Lenders, together with accrued and unpaid interest thereon and all other amounts owing hereunder to such Declining Lenders, without making corresponding repayment to any other Lenders, and make provision satisfactory to each relevant Declining Lender (acting reasonably) for (A) payment of all costs, losses, premiums or expenses incurred by such Declining Lender by reason of a liquidation or re-deployment of deposits or other funds in respect of all outstanding LIBO Rate Advances owed to such Declining Lender and (B) indemnification or release of such Declining Lender from its obligations relating to all outstanding Letters of Credit or Swing Line Borrowings. Upon such payments and provisions being made, each such Declining Lender shall cease to be a Lender and its Commitment shall be cancelled and the aggregate Commitment amount shall be reduced accordingly.

(f) If the Commitment of a Declining Lender is not assigned in accordance with Section 8.11(e)(i) or repaid in accordance with Section 8.11(e)(ii), then such Declining Lender shall continue to be obliged to make its Lender’s proportion of Borrowings available to the Borrower prior to the Termination Date applicable to its Commitment and on such date:

(i) the Commitment of such Declining Lender shall be automatically terminated and any Advances then owing to such Declining Lender shall be repaid in full together with accrued and unpaid interest thereon and all other amounts owing hereunder to such Declining Lender; and

(ii) the aggregate Commitment amount shall be deemed to be reduced by the amount of such terminated Commitment;

provided that, notwithstanding Section 8.11(e) or any other provision herein, at any time prior to such Termination Date, the Borrower may require any Declining Lender to assign all or (subject to Section 8.07) a portion of its rights, benefits and interests under this Agreement in the same manner and subject to the same procedures as are contemplated in Section 8.11(e)(i) above and, upon such assignment becoming effective, each assignee shall be deemed to be an Extending Lender and the Termination Date applicable to the Assigned Interests shall be extended to the Termination Date applicable to the Commitments of the Extending Lenders; and provided , further , that where the

 

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84


proposed Assigned Interests are less than the aggregate Commitments of all of the Declining Lenders, the Borrower shall ensure that the Commitments of all (but not less than all) of the Declining Lenders are assigned or cancelled either (A) by requiring some or all of the Declining Lenders to (and such Declining Lender shall thereupon become obligated to) assign to the proposed assignee or assignees the same proportion of their respective Commitments as their respective Commitments bear to the aggregate Commitments of all Declining Lenders or (B) if no Default then exists, by repaying to some or all of the Declining Lenders all principal amount of Advances, accrued and unpaid interest and other amounts owing hereunder to the Declining Lenders in the same manner as is contemplated in Section 8.11(e)(ii) above.

(g) This Section 8.11 shall apply from time to time to facilitate successive extensions and requests for extensions of the Termination Date. The Borrower shall not be entitled to request any action or give any notice under this Section 8.11 or receive any extension of the Termination Date in respect of any Commitment so long as there exists a Default or an Event of Default which has not been waived by the Lenders.

(h) The Borrower may, at its option and from time to time (but only pursuant to the delivery of an executed Request for Extension pursuant to Section 8.11(a)), request any Declining Lender to extend the then current Termination Date with respect to the Commitments of such Declining Lender to the proposed Termination Date requested in such extension request. In these circumstances:

(i) the Request for Extension shall expressly refer to such Declining Lender and shall be provided by the Administrative Agent to such Declining Lender;

(ii) such Declining Lender shall be included as one of the Requested Lenders for all purposes of Section 8.11 (except for the purposes of making the percentage calculation contemplated in Sections 8.11(c)(i)(B) or 8.11(c)(ii));

(iii) upon the agreement of such Declining Lender to extend the Termination Date and the delivery of the applicable Borrower Extension Notice from the Administrative Agent to the Borrower, such Declining Lender shall become an Extending Lender and shall cease to be a Declining Lender; and

(iv) in the event such Declining Lender does not, or is deemed to not, agree to extend the Termination Date, Sections 8.11(e) and 8.11(f) shall continue to apply to such Declining Lender as they applied prior to the giving of such Request for Extension.

SECTION 8.12.  Execution in Counterparts . This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by telecopier shall be effective as delivery of a manually executed counterpart of this Agreement.

SECTION 8.13.  Jurisdiction, Etc . (a) Each of the parties hereto unconditionally agrees that it will not commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against the Borrower, the Guarantor, the Administrative Agent, any Lender Party or any Related Party of the foregoing in any way relating to this Agreement or any other Loan Document or the transactions relating hereto or thereto, in any forum

 

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other than the courts of the State of New York sitting in New York County, and of the United States District Court of the Southern District of New York, and any appellate court from any thereof , and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that all claims in respect of any such action, litigation or proceeding may be heard and determined in such New York State court or, to the fullest extent permitted by applicable law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

(b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any New York State or federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

 

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86


SECTION 8.14. WAIVER OF JURY TRIAL . EACH OF THE BORROWER, THE ADMINISTRATIVE AGENT, THE SYNDICATION AGENTS, THE DOCUMENTATION AGENTS, THE LEAD ARRANGERS, THE LENDERS AND THE ISSUING BANKS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY LENDER OR ISSUING BANK IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.

[Remainder of this page intentionally left blank.]

 

Alenco - Amended and Restated Credit Agreement


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.

 

ALENCO INC.,

as Borrower

By:   /s/ Sherri A. Brillon
 

 

  Sherri A. Brillon
  President
By:   /s/ Gerald T. Ince
 

 

  Gerald T. Ince
  Treasurer

CITIBANK, N.A.,

as Administrative Agent

By:  

/s/ Andrew Sidford

 

 

  Name:  

Andrew Sidford

  Title:  

Vice President

Lenders

CITIBANK, N.A., as Lender, Issuing Bank and Swing Line Bank

By:  

/s/ Andrew Sidford

 

 

  Name:  

Andrew Sidford

  Title:  

Vice President

 

Signature Page to Second Amended and Restated Credit Agreement


BANK OF AMERICA, N.A.
By:  

/s/ James K.G. Campbell

 

 

  Name:   JAMES K.G. CAMPBELL
  Title:   DIRECTOR
THE ROYAL BANK OF SCOTLAND N.V., (CANADA) BRANCH
By:   /s/ Shehan J. De Silva
 

 

  Name:   Shehan J. De Silva
  Title:   Vice President
By:  

/s/ David Wright

 

 

  Name:   David Wright
  Title:   Head TPM Canada
BARCLAYS BANK PLC
By:  

/s/ Ann E. Sutton

 

 

  Name:   Ann E. Sutton
  Title:   Director
JPMORGAN CHASE BANK, N.A.
By:  

/s/ Debra Hrelja

 

 

  Name:   Debra Hrelja
  Title:   Vice President
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
By:  

/s/ Andrew Oram

 

 

  Name:   Andrew Oram
  Title:   Managing Director
DEUTSCHE BANK AG NEW YORK BRANCH
By:   /s/ Philippe Sandmeier
 

 

  Name:   Philippe Sandmeier
  Title:   Managing Director
By:  

/s/ Ross Levitsky

 

 

  Name:   Ross Levitsky
  Title:   Managing Director

 

Signature Page to Amended and Restated Credit Agreement


DNB NOR BANK ASA.
By:  

/s/ Sanjiv Nayar

 

 

  Name:   SANJIV NAYAR
  Title:   SENIOR VICE PRESIDENT
By:  

/s/ Pal Boger

 

 

  Name:   PAL BOGER
  Title:   VICE PRESIDENT
GOLDMAN SACHS LENDING PARTNERS LLC
By:  

/s/ Mark Walton

 

 

  Name:   Mark Walton
  Title:   Authorized Signatory
SUMITOMO MITSUI BANKING CORPORATION
By:  

/s/ Natsuhiro Samejima

 

 

  Name:   Natsuhiro Samejima
  Title:   Managing Director
WELLS FARGO BANK, NATIONAL ASSOCIATION
By:  

/s/ Sarah Thomas

 

 

  Name:   Sarah Thomas
  Title:   Vice President
EXPORT DEVELOPMENT CANADA
By:  

/s/ Christiane De Billy

 

 

  Name:   CHRISTIANE DE BILLY
  Title:   FINANCING MANAGER
By:  

/s/ Quynh Nguyen

 

 

  Name:   QUYNH NGUYEN
  Title:   FINANCING MANAGER

Signature Page to Amended and Restated Credit Agreement


BNP PARIBAS

By:

 

/s/ Berangere Allen

 

 

 

Name:

 

Berangere Allen

 

Title:

 

Director

By:

 

/s/ Angela B. Arnold

 

 

 

Name:

 

Angela B. Arnold

 

Title:

 

Managing Director

Signature Page to Amended and Restated Credit Agreement


SCHEDULE I

COMMITMENTS

 

Name of Lender

   Revolving Credit
Commitment
     Letter of Credit
Sub-Commitment
     Swing Line
Sub-Commitment
 

Bank of America, N.A.

   $ 90,000,000.00        

The Royal Bank of Scotland N.V., (Canada) Branch

   $ 90,000,000.00        

Citibank, N.A.

   $ 90,000,000.00      $ 25,000,000.00      $ 25,000,000.00  

Barclays Bank PLC

   $ 90,000,000.00        

JPMorgan Chase Bank, N.A.

   $ 90,000,000.00        

The Bank of Tokyo-Mitsubishi UFJ, Ltd.

   $ 75,000,000.00        

Deutsche Bank AG, New York Branch

   $ 75,000,000.00        

DnB NOR Bank ASA

   $ 75,000,000.00        

Goldman Sachs Lending Partners LLC

   $ 75,000,000.00        

Sumitomo Mitsui Banking Corporation

   $ 75,000,000.00        

Wells Fargo Bank, National Association

   $ 75,000,000.00        

Export Development Canada

   $ 55,000,000.00        

BNP Paribas

   $ 45,000,000.00        
  

 

 

    

 

 

    

 

 

 

Total of Commitments:

   $ 1,000,000,000.00      $ 25,000,000.00      $ 25,000,000.00  
  

 

 

    

 

 

    

 

 

 

Alenco - Amended and Restated Credit Agreement


EXHIBIT A

[Intentionally omitted]

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


EXHIBIT B-1 - FORM OF NOTICE OF BORROWING

Citibank, N.A., as Administrative Agent

for the Lenders and Issuing Banks parties

to the Credit Agreement

referred to below

1615 Brett Road, Building #3

New Castle, Delaware 19720

[Date]

Attention:                     

Ladies and Gentlemen:

The undersigned, Alenco Inc., refers to the Second Amended and Restated Credit Agreement, dated as of October 20, 2011 (as amended, amended and restated, supplemented or modified from time to time, the “ Credit Agreement ”, the terms defined therein being used herein as therein defined), among the undersigned, Merrill Lynch, Pierce, Fenner & Smith Incorporated, RBS Securities Inc., Citigroup Global Markets Inc., Barclays Capital (“BARCLAYS CAPITAL”), the investment bank division of Barclays Bank PLC (“BARCLAYS BANK”, and together with BARCLAYS CAPITAL, “BARCLAYS”) and J.P. Morgan Securities LLC, as Lead Arrangers for the Lender Parties, Bank of America, N.A. and The Royal Bank of Scotland N.V., (Canada) Branch, as Syndication Agents for the Lender Parties, Citibank, N.A., as the Swing Line Bank and Administrative Agent for the Lender Parties, and hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby requests a Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to such Borrowing (the “ Proposed Borrowing ”) as required by Section 2.02(a) of the Credit Agreement:

(i) The Business Day of the Proposed Borrowing is             ,         .

(ii) The Type of Revolving Credit Advances comprising the Proposed Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].

(iii) The aggregate amount of the Proposed Borrowing is $        .

[(iv) The initial Interest Period for each Eurodollar Rate Advance made as part of the Proposed Borrowing is [     days][             month[s]].]

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


Very truly yours,
ALENCO INC.
By:  

 

  Name:
  Title:
By:  

 

  Name:
  Title:

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


EXHIBIT B-2 - FORM OF NOTICE OF BORROWING

Citibank, N.A., as Administrative Agent

for the Lenders and Issuing Banks parties

to the Credit Agreement

referred to below

1615 Brett Road, Building #3

New Castle, Delaware 19720

[Date]

Attention:                     

Ladies and Gentlemen:

The undersigned, Alenco Inc., refers to the Second Amended and Restated Credit Agreement that is proposed to be entered into on October 20, 2011 (as amended, amended and restated, supplemented or modified from time to time, the “ Credit Agreement ”, the terms defined in the draft of such agreement existing on the date of this notice being used herein as therein defined), among the undersigned, Merrill Lynch, Pierce, Fenner & Smith Incorporated, RBS Securities Inc., Citigroup Global Markets Inc., Barclays Capital (“BARCLAYS CAPITAL”), the investment bank division of Barclays Bank PLC (“BARCLAYS BANK”, and together with BARCLAYS CAPITAL, “BARCLAYS”) and J.P. Morgan Securities LLC, as Lead Arrangers for the Lender Parties, Bank of America, N.A. and The Royal Bank of Scotland N.V., (Canada) Branch, as Syndication Agents for the Lender Parties, Citibank, N.A., as the Swing Line Bank and Administrative Agent for the Lender Parties, and hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby requests a Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to such Borrowing (the “ Proposed Borrowing ”) as required by Section 2.02(a) of the Credit Agreement:

(i) The Business Day of the Proposed Borrowing is             , 20    .

(ii) The Type of Revolving Credit Advances comprising the Proposed Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].

(iii) The aggregate amount of the Proposed Borrowing is $        .

[(iv) The initial Interest Period for each Eurodollar Rate Advance made as part of the Proposed Borrowing is [     days][             month[s]].]

[If the Proposed Borrowing is to be comprised of Eurodollar Rate Advances:] [The undersigned hereby indemnifies each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified above for such Borrowing the applicable conditions set forth in Article III of the Credit Agreement, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


fund the Revolving Credit Advance to be made by such Lender as part of such Borrowing when such Revolving Credit Advance, as a result of such failure, is not made on such date.]

 

Very truly yours,
ALENCO INC.
By:  

 

  Name:
  Title:
By:  

 

  Name:
  Title:

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


EXHIBIT C

FORM OF ASSIGNMENT AND ASSUMPTION

This Assignment and Assumption (the “ Assignment and Assumption ”) is dated as of the Effective Date set forth below and is entered into by and between [the][each] 1 Assignor identified in item 1 below ([the][each, an] “ Assignor ”) and [the][each] 2 Assignee identified in item 2 below ([the][each, an] “ Assignee ”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees] 3 hereunder are several and not joint.] 4 Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “ Credit Agreement ”), receipt of a copy of which is hereby acknowledged by [the][each] Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.

For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the facility identified below (including without limitation any letters of credit, guarantees, and swingline loans included in such facility), and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “ Assigned Interest ”). Each such sale and

 

1   For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language.
2   For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language.
3   Select as appropriate.
4   Include bracketed language if there are either multiple Assignors or multiple Assignees.

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.

 

1.    Assignor[s]:                

 

  
     

 

  
   [Assignor [is] [is not] a Defaulting Lender]   
2.    Assignee[s]:   

 

  
     

 

  
   [for each Assignee, indicate [Affiliate][Approved Fund] of [ identify Lender ]
3.    Borrower:    Alenco Inc.   
4.    Administrative Agent: Citibank, N.A., as the administrative agent under the Credit Agreement
5.    Credit Agreement:    The Second Amended and Restated Credit Agreement dated as of October 20, 2011 among Alenco Inc., the Lenders parties thereto, Citibank, N.A., as Administrative Agent, and the other agents parties thereto.
6.    Assigned Interest[s]:      

 

Assignor[s] 5

  

Assignee[s] 6

   Aggregate Amount of
Commitment/Advances
for all Lenders 8
     Amount of
Commitment/
Advances Assigned 8
     Percentage
Assigned of
Commitment/
Advances 9
    CUSIP
Number
 
      $               $                       
      $      $              
      $      $              

 

[7.    Trade Date:                         ] 10   

[Remainder of this page intentionally left blank.]

 

5   List each Assignor, as appropriate.
6   List each Assignee, as appropriate.
8   Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.
9   Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.
10   To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to be determined as of the Trade Date.

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


Effective Date:              , 20     [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]

The terms set forth in this Assignment and Assumption are hereby agreed to:

 

ASSIGNOR[S]
[NAME OF ASSIGNOR]
By:  

 

  Title:
[NAME OF ASSIGNOR]
By:  

 

  Title:
ASSIGNEE[S]
[NAME OF ASSIGNEE]
By:  

 

  Title:
[NAME OF ASSIGNEE]
By:  

 

  Title:

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


[Consented to and] 13 Accepted:
[NAME OF ADMINISTRATIVE AGENT], as Administrative Agent
By:  

 

  Title:
[Consented to:] 14
[NAME OF RELEVANT PARTY]
By:  

 

  Title:

 

13   To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
14   To be added only if the consent of the Borrower and/or other parties (e.g. Swingline Lender, Issuing Bank) is required by the terms of the Credit Agreement.

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


ANNEX 1

Alenco Inc. Credit Agreement dated as of October     , 2011

STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION

1. Representations and Warranties .

1.1 Assignor[s] . [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document, or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.

1.2. Assignee[s] . [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 8.07(b)(iii), (v) and (vi) of the Credit Agreement (subject to such consents, if any, as may be required under Section 8.07(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 5.01(h) thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) if it is organized under the laws of a jurisdiction outside of the United States, attached to the Assignment and Assumption is

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.

2. Payments . From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignee whether such amounts have accrued prior to, on or after the Effective Date. The Assignor[s] and the Assignee[s] shall make all appropriate adjustments in payments by the Administrative Agent for periods prior to the Effective Date or with respect to the making of this assignment directly between themselves. Notwithstanding the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to [the][the relevant] Assignee.

3. General Provisions . This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


EXHIBIT D-1 –

FORM OF OPINION OF

INTERNAL COUNSEL FOR, OR

ACTING ON BEHALF OF, THE

BORROWER AND THE GUARANTOR

[            , 20    ]

To Citibank, N.A.

as Administrative Agent and each

of the Lender Parties

Party to the Credit Agreement

referred to below

Ladies and Gentlemen:

This opinion is furnished to you pursuant to Section [3.01(f)(vii)] [Section 2.19(d)(vi)] of the Second Amended and Restated Credit Agreement dated as of October 20, 2011 (the “Credit Agreement”), among Alenco Inc. (the “Borrower”), the Lenders party thereto, Merrill Lynch, Pierce, Fenner & Smith Incorporated, RBS Securities Inc., Citigroup Global Markets Inc., Barclays Capital, the investment bank division of Barclays Bank PLC, and J.P. Morgan Securities LLC, as Lead Arrangers, Citibank, N.A., as Swing Line Bank and Administrative Agent and Bank of America, N.A. and The Royal Bank of Scotland N.V., (Canada) Branch, as Syndication Agents.

I, David F.C. Sheridan, am employed by Encana Corporation (the “Guarantor”) in the position of Associate General Counsel and have acted as in-house counsel on behalf of the Borrower and the Guarantor from time to time. I have acted in connection with the preparation, execution and delivery of the Credit Agreement by the Borrower and the Second Amended and Restated Guaranty dated as of October 20, 2011, by the Guarantor in favor of the Agent and the Lenders referred to above (the “Guaranty”). Terms defined in the Credit Agreement or the Guaranty are used herein as respectively therein defined.

In that connection, I have examined:

 

  (a) the Credit Agreement;

 

  (b) the Guaranty;

 

  (c) the documents furnished to you by the Guarantor at the closing, pursuant to [Section 3.01] [Section 2.19] of the Credit Agreement; and

 

  (d) the constating documents of the Guarantor and all amendments thereto (the “Guarantor’s Charter Documents”).

The items numbered (a) through (d), above, are hereinafter sometimes collectively referred to as the “Documents”.


I have made such investigations and have examined such public instruments, corporate records and other documents and certificates as I have considered relevant and necessary for the purposes of this opinion.

Based upon and subject to the foregoing and to the qualifications set forth below, and without personal obligation or liability, I am of the opinion that:

 

1. Encana Corporation (the “Guarantor”) is validly subsisting as a corporation under the Canada Business Corporations Act .

 

2. The Guarantor has all necessary corporate power and authority to execute, deliver and perform its obligations under the Guaranty. The execution, delivery and performance by the Guarantor of the Guaranty have been duly authorized by all necessary corporate action on the part of the Guarantor.

 

3. The Guaranty has been duly executed and delivered by the Guarantor.

 

4. To the best of my knowledge, there are no pending or overtly threatened actions or proceedings against the Guarantor or its Subsidiaries before any court, governmental agency or arbitrator that purport to affect the legality, validity, binding effect or enforceability of the Documents or the consummation of the transactions contemplated thereby or that are reasonably likely to be determined adversely and, if determined adversely, would have a materially adverse effect upon the business, operations, assets or the financial condition of the Guarantor and its Subsidiaries (including the Borrower) taken as a whole.

 

5. To the best of my knowledge, there are no pending or overtly threatened actions or proceedings against the Borrower or its Subsidiaries before any court, governmental agency or arbitrator that purport to affect the legality, validity, binding effect or enforceability of the Documents or the consummation of the transactions contemplated thereby or that are reasonably likely to be determined adversely and, if determined adversely, would have a materially adverse effect upon the business, operations, assets or the financial condition of the Borrower and its Subsidiaries taken as a whole.

 

6. The execution, delivery and performance by the Guarantor of the Guaranty, and the consummation of the transactions contemplated thereby, do not (a) violate the Guarantor’s Charter Documents, (b) violate the laws of the Province of Alberta and the federal laws of Canada that, in each case, in my experience, are applicable to credit transactions of the type contemplated by the Guaranty and are in effect on the date hereof (“ Covered Laws ”) or (c) violate any contractual or legal restriction contained in any document to which the Guarantor is a party.

 

7. Except for any filings, authorizations or approvals as are specifically provided for in the Documents, no authorizations, approvals or other action by, and no notice or filings with, any governmental or regulatory authority or agency are necessary under any Covered Law by which the Guarantor is bound for the execution, delivery or performance by the Guarantor of the Guaranty.

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


8. To the best of my knowledge, except for any filings, authorizations or approvals as are specifically provided for in the Documents, no authorizations, approvals or other action by, and no notice or filings with, any third party are necessary under any other documentation by which the Guarantor is bound for the execution, delivery or performance by the Guarantor of the Guaranty.

 

9. In any proceeding in a court of competent jurisdiction in the Province of Alberta (an “ Alberta Court ”) for the enforcement of the Guaranty, the Alberta Court would give effect to the choice of New York law as the proper law governing the Guaranty in respect of all issues which, under the Covered Laws, are to be determined in accordance with the chosen law of the contract, provided that

 

  (a) such choice of law is bona fide (in the sense that it was not made with a view to avoiding the consequences of the laws of any other jurisdiction) and such choice of law is not contrary to public policy, as that term is understood under any Covered Law (“ Public Policy ”); to my knowledge, there are no reasons under any Covered Law for avoiding the choice of New York law to govern the Guaranty; and

 

  (b) in any such proceeding, and notwithstanding the parties’ choice of law, the Alberta Court:

 

  (i) will not take judicial notice of the provisions of New York law but will only apply such provisions if they are pleaded and proven by expert testimony;

 

  (ii) will not apply any New York law and will apply Covered Laws to matters which would be characterized under Covered Laws as procedural;

 

  (iii) will apply provisions of Covered Laws that have overriding effect;

 

  (iv) will not apply any New York law if such application would be characterized under Covered Laws as the direct or indirect enforcement of a foreign revenue, expropriatory, or penal law or if its application would be contrary to Public Policy; and

 

  (v) will not enforce the performance of any obligation that is illegal under the laws of any jurisdiction in which the obligation is to be performed.

The opinions expressed herein are limited to the Covered Laws. No opinion is expressed upon the laws of any other jurisdiction.

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


This opinion relates exclusively to the transaction referred to above and is for the sole use and benefit of the Agent and Lender Parties referred to above. Accordingly, it cannot be relied upon by other parties or used in other transactions without my express written consent.

 

Yours truly,
Encana Corporation
David F.C. Sheridan
Associate General Counsel

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


EXHIBIT D-2 FORM OF OPINION

OF SPECIAL NEW YORK COUNSEL FOR

THE BORROWER AND THE GUARANTOR

[            , 20    ]

To the Lenders party to the Credit

Agreement referred to below

and Citibank, N.A.,

as Administrative Agent

Ladies and Gentlemen:

We have acted as special counsel to Alenco Inc., a Delaware corporation (the “ Borrower ”), and Encana Corporation, a corporation organized under the laws of Canada (the “ Parent Guarantor ”, and together with the Borrower, the “ Principal Parties ”), in connection with (a) the Second Amended and Restated Credit Agreement (the “ Credit Agreement ”), dated as of the date hereof, among the Borrower, the financial institutions listed on the signature pages of the Credit Agreement (the “ Lenders ”), Merrill Lynch, Pierce, Fenner & Smith Incorporated, RBS Securities Inc., Citigroup Global Markets Inc., Barclays Capital, the investment bank division of Barclays Bank PLC and J.P. Morgan Securities LLC, as lead arrangers, Bank of America, N.A. and The Royal Bank of Scotland N.V., (Canada) Branch, as syndication agents, Barclays Bank and JPMorgan Chase Bank, N.A. as documentation agents, and Citibank N.A., as Swing Line Bank and Administrative Agent, (the “ Agent ”) and (b) the Second Amended and Restated Guaranty (the “ Guaranty ”), dated as of the date hereof, executed by the Parent Guarantor in favor of the Agent and the Lender Parties. This opinion is being furnished to you at the request of the Borrower as provided by [Section 3.01(f)(viii)] [Section

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


2.19(d)(vii)] of the Credit Agreement. Capitalized terms used and not otherwise defined have the respective meanings given those terms in the Credit Agreement.

In connection with this opinion, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents, each dated as of the date of this letter (collectively, the “ Documents ”):

10. the Credit Agreement; and

11. the Guaranty.

In addition, we have examined: (i) those corporate records of the Borrower that we have considered appropriate, including copies of the certificate of incorporation and by-laws of the Borrower certified by it as in effect on the date of this letter (collectively, the “ Charter Documents ”) and copies of resolutions of the board of directors of the Borrower certified by it; and (ii) those other certificates, agreements and documents that we deemed relevant and necessary as a basis for our opinion. We have also relied upon the factual matters contained in the representations and warranties of the Principal Parties made in the Documents and upon certificates of public officials and the Principal Parties.

In our examination of the documents referred to above, we have assumed, without independent investigation, the genuineness of all signatures, the legal capacity of all individuals who have executed any of the documents reviewed by us, the authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as certified, photostatic, reproduced or conformed copies of valid existing agreements or other documents, the authenticity of the latter documents and that the statements regarding matters of fact in the certificates, records, agreements, instruments and documents that we have examined are accurate and complete. We have

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


also assumed, without independent investigation, the enforceability of the Documents against each party other than the Principal Parties.

In addition, in the case of the Parent Guarantor, we have assumed, without independent investigation, that (i) the Parent Guarantor is validly existing and in good standing under the laws of its jurisdiction of organization, (ii) the Parent Guarantor has all necessary corporate power and authority to execute, deliver and perform its obligations under each Document to which it is a party, (iii) the execution, delivery and performance of each Document have been duly authorized by all necessary corporate action and do not violate its charter or other organizational documents or the laws of its jurisdiction of organization and (iv) each Document has been duly executed and delivered by it under the laws of its jurisdiction of organization.

Whenever we indicate that our opinion is based upon our knowledge or words of similar import, our opinion is based solely on an officer’s certificate of the Borrower and Parent Guarantor and without any independent verification or investigation.

Based upon the foregoing, and subject to the assumptions, exceptions and qualifications stated below, we are of the opinion that:

1. The Borrower is a Delaware corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.

2. The Borrower has all necessary corporate power and authority to execute, deliver and perform its obligations under each Document to which it is a party. The execution, delivery and performance by the Borrower of each Document to which it

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


is a party have been duly authorized by all necessary corporate action on the part of the Borrower and do not violate its Charter Documents.

3. Each Document has been duly executed and delivered by each Principal Party which is a party to it. Each Document constitutes the legal, valid and binding obligation of each Principal Party which is a party to it, enforceable against that Principal Party in accordance with its terms.

4. The execution and delivery by each Principal Party of each of the Documents to which it is a party and the performance by the Principal Party of its obligations under the Documents do not (i) violate any Covered Law (as defined below) (including Regulations U or X of the Board of Governors of the Federal Reserve System of the United States), (ii) violate any material order, writ, injunction or decree of which we have knowledge of any court or governmental authority or agency binding upon the Principal Party or to which the Principal Party is subject, (iii) breach or result in a default under any agreement listed on Schedule      to which the Principal Party is a party or by which the Principal Party is bound, or (iv) result in the creation or imposition of any Lien upon any of the assets of the Principal Party under the terms of any such agreement.

5. Except for any filings, authorizations or approvals as are specifically provided for in the Documents, no authorizations or approvals of, and no filings with, any governmental or regulatory authority or agency are necessary under any Covered Law for the execution, delivery or performance by any Principal Party of the Documents to which it is a party.

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


6. None of the Principal Parties is required to be registered as an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

This opinion is subject to the following assumptions, exceptions and qualifications:

(a) The enforceability of the Documents may be: (i) subject to bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally; and (ii) subject to general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity).

(b) We express no opinion as to: (i) the enforceability of any provisions in the Guaranty purporting to preserve and maintain the liability of any party to the Guaranty despite the fact that the guarantied debt is unenforceable due to illegality; (ii) the enforceability of any provisions contained in the Documents that purport to establish (or may be construed to establish) evidentiary standards; and (iii) the enforceability of forum selection clauses in the federal courts.

This opinion is limited to the laws of the State of New York, the General Corporation Law of the State of Delaware and the federal laws of the United States of America that, in each case, in our experience, are normally applicable to credit transactions of the type contemplated by the Credit Agreement (collectively, the “ Covered Laws ”). This opinion is rendered only with respect to the laws, and the rules, regulations and orders under those laws, that are currently in effect.

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


This opinion is furnished by us solely for your benefit in connection with the transactions referred to in the Credit Agreement and may not be circulated to, or relied upon by, any other Person, except that it may be circulated to any prospective Lender in accordance with the Credit Agreement and may be relied upon by any person who, in the future, becomes a Lender.

                                   Very truly yours,

PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


Schedule 1

AGREEMENTS

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


EXHIBIT E-1

FORM OF GUARANTY

SECOND AMENDED AND RESTATED GUARANTY

Dated as of October 20, 2011

From

ENCANA CORPORATION

as Guarantor

in favor of

THE LENDER PARTIES REFERRED TO HEREIN

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


SECOND AMENDED AND RESTATED GUARANTY

This SECOND AMENDED AND RESTATED GUARANTY dated as of October 20, 2011 (this “ Guaranty ”), is made by Encana Corporation, a corporation subsisting under the Canada Business Corporations Act (the “ Guarantor ”), in favor of the Administrative Agent, the Lenders and the Issuing Banks referred to below (the “ Lender Parties ”) and amends and restates in entirety the Original Guaranty (as defined below).

PRELIMINARY STATEMENTS:

1. Alenco Inc., a Delaware corporation (the “ Borrower ”) entered into a Credit Agreement dated as of December 22, 2003 (the “ 2003 Credit Agreement ”), with Barclays Capital (“ Barclays Capital ”), the investment banking division of Barclays Bank PLC (“Barclays Bank”, and together with Barclays Capital, “Barclays”), Citigroup Global Markets Inc. (“ CGMI ”), Barclays Bank, Citibank, N.A. (“ Citibank ”) and the initial lenders named therein, and in connection therewith, the Guarantor issued the Guaranty, dated as of December 22, 2003 (the “ 2003 Guaranty ”), as a condition precedent to the making of advances under the 2003 Credit Agreement.

2. The Borrower, Barclays, CGMI and Citibank and the initial lenders named therein amended and restated the 2003 Credit Agreement pursuant to the Amended and Restated Credit Agreement dated as of December 8, 2004, as amended by the First Amendment to Amended and Restated Credit Agreement dated as of January 12, 2005 and by the Second Amendment to Amended and Restated Credit Agreement dated as of December 2, 2005 (as amended and restated, the “ 2004 Credit Agreement ”), and in connection therewith, the Guarantor issued the Amended and Restated Guaranty dated as of December 8, 2004 (the “ 2004 Guaranty ”), as a condition precedent to the effectiveness of the 2004 Credit Agreement.

3. The Borrower, Barclays, CGMI, BNP Paribas, The Bank of Tokyo Mitsubishi UFJ, Ltd. and The Royal Bank of Scotland plc and the initial lenders named therein amended and restated the 2004 Credit Agreement pursuant to the Amended and Restated Credit Agreement dated as of December 14, 2006, as amended by Amendment No. 1 to the Amended and Restated Credit Agreement effective as of July 31, 2009 (as amended and restated and amended, the “ Original Credit Agreement ”), and in connection therewith, the Guarantor issued the Amended and Restated Guaranty dated as of December 14, 2006 (the “ Original Guaranty ”), as a condition precedent to the effectiveness of the Original Credit Agreement.

4. The Borrower, Bank of America, N.A., The Royal Bank of Scotland N.V., (Canada) Branch, Citibank, Barclays and JPMorgan Chase Bank, N.A. and the initial lenders named therein are parties to a Second Amended and Restated Credit Agreement dated as of October 20, 2011, pursuant to which such parties have amended and restated the Original Credit Agreement on the terms and conditions set forth in such Amended and Restated Credit Agreement (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


terms, the “ Credit Agreement ”; capitalized terms defined therein and not otherwise defined herein are used herein as therein defined).

5. The Guarantor will derive substantial direct and indirect benefits from the transactions contemplated by the Credit Agreement.

6. It is a condition precedent to the making of advances under the Credit Agreement that the Guarantor shall have executed and delivered this Guaranty.

NOW, THEREFORE, in consideration of the premises, in order to induce the Lead Arrangers, the Syndication Agents, the Administrative Agent and the Lender Parties to enter into the Credit Agreement, the Guarantor hereby agrees as follows:

Section 1.  Guaranty . The Guarantor hereby unconditionally and irrevocably guarantees as guarantor and not merely as surety, the punctual payment when due, whether at stated maturity, by acceleration or otherwise, of all obligations of the Borrower now or hereafter existing under the Credit Agreement, whether for principal, interest, fees, expenses or otherwise (such obligations being the “ Guaranteed Obligations ”), and agrees to pay any and all reasonable expenses (including reasonable counsel fees and out-of-pocket expenses) incurred by the Administrative Agent or any other Lender Party in enforcing any rights under this Guaranty. Without limiting the generality of the foregoing, the Guarantor’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by the Borrower to the Administrative Agent or any other Lender Party under the Credit Agreement but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy , reorganization or similar proceeding involving the Borrower.

Section 2.  Guaranty Absolute . The Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the Credit Agreement, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Administrative Agent or any other Lender Party with respect thereto. The obligations of the Guarantor under this Guaranty are independent of the Guaranteed Obligations, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Borrower or whether the Borrower is joined in any such action or actions. The liability of the Guarantor under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and the Guarantor hereby irrevocably waives any defenses it may now or hereafter have in any way relating to, any or all of the following:

(a) any lack of validity or enforceability of the Credit Agreement or any agreement or instrument relating thereto;

(b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations, or any other amendment or waiver of or any consent to departure from the Credit Agreement, including, without

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


limitation, any increase in the Guaranteed Obligations resulting from the extension of additional credit to the Borrower or any of its Subsidiaries or otherwise;

(c) any taking, exchange, release or non-perfection of any collateral, or any taking, release or amendment or waiver of or consent to departure from any other guaranty, for all or any of the Guaranteed Obligations;

(d) any manner of application of collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or any other assets of the Borrower or any of its Subsidiaries;

(e) any change, restructuring or termination of the corporate structure or existence of the Borrower or any of its Subsidiaries or any transfer of the Guaranteed Obligations to a successor;

(f) any failure of any Lender Party to disclose to the Borrower or the Guarantor any information relating to the financial condition, operations, properties or prospects of the Guarantor or the Borrower, as the case may be, now or in the future known to any Lender Party (the Guarantor waiving any duty on the part of the Lender Parties to disclose such information); or

(g) any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by the Administrative Agent or any other Lender Party that might otherwise constitute a defense available to, or a discharge of, the Borrower, the Guarantor or any other guarantor or surety.

This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by any Lender Party or any other Person upon the insolvency, bankruptcy or reorganization of the Borrower or otherwise, all as though such payment had not been made.

Section 3.  Waivers and Acknowledgments . (a) The Guarantor hereby waives promptness, diligence, notice of acceptance and any other notice with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that the Administrative Agent or any other Lender Party protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against the Borrower or any other Person or any collateral.

(b) The Guarantor hereby waives any right to revoke this Guaranty, and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future.

(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by the Credit Agreement and that the waivers set forth in this Section 3 are knowingly made in contemplation of such benefits.

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


Section 4.  Subrogation . The Guarantor will not exercise any rights that it may now or hereafter acquire against the Borrower or any other insider guarantor that arise from the existence, payment, performance or enforcement of the Guarantor’s obligations under this Guaranty, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Administrative Agent or any other Lender Party against the Borrower or any other insider guarantor or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Borrower or any other insider guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash and the Commitments shall have expired or terminated. If any amount shall be paid to the Guarantor in violation of the preceding sentence at any time prior to the later of the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty and the Termination Date, such amount shall be held in trust for the benefit of the Administrative Agent and the other Lender Parties and shall forthwith be paid to the Administrative Agent to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of the Credit Agreement, or to be held as collateral for any Guaranteed Obligations or other amounts payable under this Guaranty thereafter arising. If (a) the Guarantor shall make payment to the Administrative Agent or any other Lender Party of all or any part of the Guaranteed Obligations, (b) all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall be paid in full in cash and (c) the Termination Date shall have occurred, the Administrative Agent and the other Lender Parties will, at the Guarantor’s request and expense, execute and deliver to the Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Guarantor of an interest in the Guaranteed Obligations resulting from such payment by the Guarantor.

Section 5.  Payments Free and Clear of Taxes, Etc . (a) Any and all payments made by the Guarantor hereunder shall be made, in accordance with Section 2.14 of the Credit Agreement, free and clear of and without deduction for any and all Taxes. If the Guarantor shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder to the Administrative Agent or any other Lender Party, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section) the Administrative Agent or such other Lender Party (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Guarantor shall make such deductions and (iii) the Guarantor shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.

(b) In addition, the Guarantor agrees to pay any Other Taxes.

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


(c) The Guarantor will indemnify the Administrative Agent and each Lender Party for the full amount of Taxes or Other Taxes imposed on or paid by the Administrative Agent or such other Lender Party (as the case may be) and any liability (including penalties, additions to tax, interest and expenses) arising therefrom or with respect thereto. This indemnification shall be made within 30 days from the date the Administrative Agent or such other Lender Party (as the case may be) makes written demand therefor.

(d) Within 30 days after the date of any payment of Taxes by or on behalf of the Guarantor, the Guarantor will furnish to the Administrative Agent, at its address set forth in Section 8.02(a)(ii) of the Credit Agreement, the original receipt of payment thereof or a certified copy of such receipt.

(e) Without prejudice to the survival of any other agreement of the Guarantor hereunder, the agreements and obligations of the Guarantor contained in this Section 5 shall survive the payment in full of the Guaranteed Obligations and all other amounts payable under this Guaranty.

(f) Each Lender Party that is not a “United States person” within the meaning of Section 7701(a)(30) of the Internal Revenue Code, on or prior to the date of its execution and delivery of the Credit Agreement in the case of each initial Lender Party and on the date of the Assignment and Assumption pursuant to which it becomes a Lender Party in the case of each other Lender Party, and from time to time thereafter as requested in writing by the Guarantor or upon the obsolescence, expiration or invalidity of any form previously delivered by such Lender Party (but only so long as such Lender Party remains lawfully able to do so), provide the Guarantor with such original forms or statements as such Lender Party is required to provide to the Borrower or Administrative Agent pursuant to Section 2.15 of the Credit Agreement, and the relevant provisions of Section 2.15 of the Credit Agreement shall govern the rights and obligations of such Lender Party with respect thereto.

(g) In the event that an additional payment is made under this Section 5 for the account of any Lender Party and such Lender Party, in its sole discretion, determines that it has finally and irrevocably received or been granted a credit against or release or remission for, or repayment of, any tax paid or payable by it in respect of or calculated with reference to the deduction or withholding giving rise to such additional payment, such Lender Party shall, to the extent that it determines that it can do so without prejudice to the retention of the amount of such credit, relief, remission or repayment, pay to the Guarantor such amount as such Lender Party shall, in its sole discretion, have determined to be attributable to such deduction or withholding and which will leave such Lender Party (after such payment) in no worse position than it would have been in if the Guarantor had not been required to make such deduction or withholding; provided that the Guarantor, upon the request of such Lender Party, agrees to pay the amount paid over to the Guarantor (plus penalties, interest and other reasonable charges) to such Lender Party in the event such Lender Party is required to repay such credit, relief, remission or repayment to the applicable taxation authority. Nothing herein contained shall interfere

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


with the right of a Lender Party to arrange its tax affairs in whatever manner it thinks fit nor oblige any Lender Party to claim any tax credit or to disclose any information relating to its tax affairs or any computations in respect thereof or require any Lender Party to do anything that would prejudice its ability to benefit from any other credits, reliefs, remissions or repayments to which it may be entitled.

(h) Upon the request of the Borrower or the Guarantor or upon the obsolescence, expiration or invalidity of any form previously delivered by such Lender Party, any Lender Party that is a “United States person” within the meaning of Section 7701(a)(30) of the Internal Revenue Code shall deliver to the Guarantor two original Internal Revenue Service form W-9 or any successor or other form prescribed by the Internal Revenue Service. If any Lender Party fails to deliver Internal Revenue Service form W-9 or any subsequent versions thereof or successors thereto as required herein, then the Guarantor may withhold from any payment to such Lender Party the applicable backup withholding tax imposed by the Internal Revenue Code and remit such amount to the applicable taxation authority if required by law, without reduction, and such Lender Party shall not be entitled to any additional amounts under this Section 5 with respect to Taxes imposed by the United States by reason of such failure.

Section 6.  Representations and Warranties . The Guarantor hereby represents and warrants as follows:

(a) The Guarantor is a corporation duly amalgamated and validly existing under the laws of Canada.

(b) The execution, delivery and performance by the Guarantor of this Guaranty, and the consummation of the transactions contemplated hereby, are within the Guarantor’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the Guarantor’s charter or by-laws or (ii) law or any contractual restriction binding on or affecting the Guarantor.

(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Guarantor of this Guaranty.

(d) This Guaranty has been duly executed and delivered by the Guarantor. This Guaranty is the legal, valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms, except to the extent that such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally from time to time in effect and may be subject to the discretion of courts with respect to the granting of equitable remedies and their power to stay proceedings for the execution of judgments. The enforceability of the obligations of the Guarantor under this Guaranty is also subject to judicial application of foreign laws or foreign governmental actions affecting creditors’ rights.

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


(e) The Consolidated balance sheet of the Guarantor and its Subsidiaries as at December 31, 2010, and the related Consolidated statements of earnings and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of PricewaterhouseCoopers LLP, chartered accountants, copies of which have been furnished to each Lender Party, fairly present the Consolidated financial condition of the Guarantor and its Subsidiaries as at such date and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied. Except as has been disclosed to the Lenders in writing, since December 31, 2010, there has been no Material Adverse Change.

(f) Except as has been disclosed to the Lenders in writing, there is no action, suit, litigation or proceeding affecting the Guarantor or any of its Subsidiaries, including any Environmental Action, pending or, to the best of the Guarantor’s knowledge after reasonable investigation, overtly threatened, before any court, governmental agency or arbitrator that (i) is reasonably likely to be determined adversely, and if determined adversely, would have a Material Adverse Effect or (ii) purports to affect adversely the legality, validity or enforceability of this Guaranty or the consummation of the transactions contemplated thereby.

(g) The operations and properties of the Guarantor and each of its Subsidiaries comply in all material respects with all applicable laws, rules, regulations and orders, and any past non-compliance with any such applicable law, rule, regulation or order has been resolved without any ongoing obligations or costs which could reasonably be expected to have a Material Adverse Effect.

(h) Neither the Guarantor nor any of its Subsidiaries is an Investment Company, as such term is defined in the Investment Company Act of 1940, as amended.

(i) There are no conditions precedent to the effectiveness of this Guaranty that have not been satisfied or waived.

(j) The Guarantor has, independently and without reliance upon the Administrative Agent or any other Lender Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Guaranty, and the Guarantor has established adequate means of obtaining from any other Loan Parties on a continuing basis information pertaining to, and is now and on a continuing basis will be completely familiar with, the financial condition, operations, properties and prospects of such other Loan Parties.

(k) The Guarantor has delivered to the Administrative Agent for delivery to each other Lender Party a true and complete copy of the Guarantor Credit Agreement referred to in Section 7(a) below as in effect on the date hereof.

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


Section 7.  Covenants . The Guarantor covenants and agrees that, so long as any part of the Guaranteed Obligations shall remain unpaid or any Lender shall have any Commitment:

(a) the Guarantor shall comply with each covenant set forth in Article 8 of the Extendible Revolving – Term Credit Facility dated as of October 12, 2011, (the “ Guarantor Credit Agreement ”) among the Guarantor, as borrower, the financial and other institutions party thereto from time to time as lenders, and Royal Bank of Canada, as administrative agent, as such agreement may be further amended, amended and restated, supplemented or otherwise modified from time to time (i) in accordance with the terms thereof and, so long as the consent of all of the Lender Parties is not required pursuant to any of the clauses contained in the proviso to Section 8 hereof, with the consent of the Required Lenders or (ii) in accordance with the terms thereof so long as Lenders owed at least 66.67% of the then aggregate unpaid principal amount of the Revolving Credit Advances owing to Lenders or, if no Revolving Credit Advances are then outstanding, Lenders having at least 66.67% of the Revolving Credit Commitments shall not object in writing to the effectiveness for purposes of this Guaranty of any such amendment, waiver, supplement or other modification within ten (10) Business Days after receipt by the Administrative Agent of the Guarantor’s written request that such amendment, waiver, supplement or other modification become effective for purposes of this Guaranty; provided , however , if the Guarantor Credit Agreement shall for any reason terminate or otherwise cease to be valid and binding on the Guarantor at any time, the term “Guarantor Credit Agreement” as used herein shall mean the Guarantor Credit Agreement as in effect for purposes of this Guaranty immediately prior to such time after giving effect to any amendments, waivers, supplements or other modifications thereof which were effective prior to such time for purposes of this Guaranty as provided in clause (i) or (ii) of this Section 7(a);

(b) the Guarantor shall retain, directly or indirectly, legal and beneficial ownership of 100% percent of the Voting Shares of the Borrower; and

(c) the Guarantor shall provide to the Administrative Agent (with sufficient copies for each of the Lender Parties) (i) all financial statements, certificates, reports and other information required to be delivered to the “Agent” pursuant to Sections 8.1(h) and 8.1(q)(ii) of the Guarantor Credit Agreement and (ii) all notices required to be delivered to the “Agent” pursuant to Section 8.1(q)(i) of the Guarantor Credit Agreement, in each case as and when required to be delivered thereunder.

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


Section 8.  Amendments, Etc . No amendment or waiver of any provision of this Guaranty and no consent to any departure by the Guarantor therefrom shall in any event be effective unless the same shall be in writing and signed by the Required Lenders, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided , however , that no amendment, waiver or consent shall, unless in writing and signed by all of the Lender Parties, (a) limit the liability of the Guarantor hereunder, (b) postpone any date fixed for payment hereunder, (c) change the number of Lender Parties required to take any action hereunder, or (d) amend or waive any of the terms of Section 7(a) or this Section 8.

Section 9.  Notices, Etc . (a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in paragraph (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows:

(i) if to the Guarantor, to it at Encana Corporation, 1800, 855 – 2 nd Street S.W., Calgary, Alberta, T2P 2S5, Canada, Attention: Executive Vice-President & Chief Financial Officer, Fax: (403) 645-4853 with a copy to Treasury Department, Fax: (403) 718-6940;

(ii) if to the Administrative Agent, to Citibank, N.A. at 1615 Brett Road, Building #3, New Castle, Delaware 19720, Attention of Bank Loan Syndications; (Facsimile No (212) 994-0961; Telephone No (302) 323-5499)

Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices delivered through electronic communications, to the extent provided in paragraph (b) below, shall be effective as provided in said paragraph (b).

(b) So long as Citibank is the Administrative Agent, notices and other communications required to be delivered hereunder may be delivered to the Administrative Agent in an electronic medium in a format acceptable to the Administrative Agent by e-mail at oploanswebadmin@citigroup.com, or by other electronic communications (including other e-mail addresses and Internet and intranet websites) pursuant to procedures approved by the Administrative Agent.

(c) Change of Address, etc . Any party may change its address or facsimile number for notices or other communications hereunder by notices to the other parties hereto.

(d) Platform .

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


(i) The Guarantor agrees that the Administrative Agent may, but shall not be obligated to, make the Communications (as defined below) available to the Lender Parties by posting the Communications on Debt Domain, Intralinks, Syndtrak or a substantially similar electronic system (the “ Platform ”).

(ii) The Platform is provided “as is” and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (the “ Agent Parties ”) have any liability to the Guarantor, any Lender Party or any other Person or entity for damages of any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Guarantor’s or the Administrative Agent’s transmission or communication through the Platform except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative Agent or such Related Party acted with gross negligence or willful misconduct in connection with such transmission. “ Communications ” means, collectively, any notice, demand, communication, information, document or other material that the Guarantor provides to the Administrative Agent pursuant to this Guaranty or the transactions contemplated herein which is distributed to the Administrative Agent or any Lender Party by means of electronic communications pursuant to this Section, including through the Platform.

Section 10.  No Waiver; Remedies . No failure on the part of the Administrative Agent or any Lender Party to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

Section 11.  Indemnification . Without limitation on any other obligations of the Guarantor or remedies of the Lender Parties under this Guaranty, the Guarantor shall, to the fullest extent permitted by law, indemnify, defend and save and hold harmless each Lender Party from and against, and shall pay on demand, any and all losses, liabilities and damages, and reasonable costs, expenses and charges (including the reasonable fees and documented disbursements of such Lender Party’s legal counsel) suffered or incurred by such Lender Party as a result of any failure of any Guaranteed Obligations to be the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their terms.

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


Section 12.  Continuing Guaranty; Assignments under the Credit Agreement . This Guaranty is a continuing guaranty and shall (a) remain in full force and effect until the later of the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty and the Termination Date, (b) be binding upon the Guarantor, its successors and assigns and (c) inure to the benefit of and be enforceable by the Administrative Agent and the other Lender Parties and their successors, transferees and assigns. Without limiting the generality of the foregoing clause (c), any Lender Party may assign or otherwise transfer all or any portion of its rights and obligations under the Credit Agreement (including, without limitation, all or any portion of its Commitment and the Advances owing to it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such Lender Party herein or otherwise, in each case as and to the extent provided in, and in accordance with the terms of Section 8.07 of the Credit Agreement.

Section 13.  Judgment . (a) If, for the purpose of obtaining judgment in any court, it is necessary to convert a sum due hereunder or under the Credit Agreement in United States Dollars into another currency, the Guarantor agrees, to the fullest extent that it may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Lender Parties could purchase United States Dollars with such other currency at 11:00 a.m. (New York City time) on the Business Day preceding that on which final judgment is given.

(b) United States Dollars are the sole currency of account and payment for all sums payable by the Guarantor under or in connection with this Guaranty, including damages. The obligation of the Guarantor in respect of any sum due from it hereunder shall, notwithstanding any judgment in a currency other than United States Dollars, be discharged only to the extent that on the Business Day next succeeding receipt by the Lender Parties of any sum adjudged to be so due in such other currency the Lender Parties may in accordance with normal banking procedures purchase United States Dollars with such other currency; if the United States Dollars so purchased are less than the sum originally due to the Lender Parties in United States Dollars, the Guarantor agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Lender Parties against such loss.

Section 14. Governing Law; Jurisdiction; WAIVER OF JURY TRIAL, Etc . (a) This Guaranty shall be governed by, and construed in accordance with, the laws of the State of New York.

(b) Each of the parties hereto unconditionally agrees that it will not commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against the Administrative Agent, the Guarantor or any Related Party of the foregoing in any way relating to this Guaranty, in any forum other than the courts of the State of New York sitting in New York County, and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that all claims in

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


respect of any such action, litigation or proceeding may be heard and determined in such New York State court or, to the fullest extent permitted by applicable law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The Guarantor hereby irrevocably appoints and empowers CT Corporation System (the “ Process Agent ”) as its agent in the State of New York pursuant to the designation of agent for service delivered (or to be delivered) pursuant to Section 3.01(f)(ix) of the Credit Agreement to receive on behalf of the Guarantor and its property service of copies of the summons and complaint and any other process that may be served in any action, litigation or proceeding arising out of or relating to this Guaranty. The Guarantor hereby further irrevocably consents to the service of process in any such action, litigation or proceeding in such courts by the mailing thereof by any Lender Party by registered or certified mail, postage prepaid, to the Process Agent, and hereby further agrees that the failure of the Process Agent to give any notice of any such service to the Guarantor shall not impair or affect the validity of such service or of any judgment rendered in any action or proceeding based thereon. The Guarantor agrees that a final judgment in any such action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Guaranty shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Guaranty in the courts of any jurisdiction.

(c) The Guarantor irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Guaranty in any New York State or federal court. The Guarantor hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(d) THE GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THIS GUARANTY, THE CREDIT AGREEMENT, THE TRANSACTIONS CONTEMPLATED THEREBY OR THE ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY OTHER LENDER PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.

(e) To the extent that the Guarantor has or hereafter may acquire any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, the Guarantor hereby irrevocably waives such immunity in respect of its obligations under this Guaranty.

[Remainder of page intentionally left blank.]

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly executed and delivered by its officers thereunto duly authorized as of the date first above written.

 

ENCANA CORPORATION,
as Guarantor
By:  

 

  Name:
  Title:
By:  

 

  Name:
  Title:

 

Consented to:
CITIBANK, N.A., as Administrative Agent
By  

 

  Name:
  Title:


EXHIBIT E-2 FORM OF

AMENDED AND RESTATED GUARANTY

[            ] 1 AMENDED AND RESTATED GUARANTY

Dated as of             , 20[    ]

From

ENCANA CORPORATION

as Guarantor

in favor of

THE LENDER PARTIES REFERRED TO HEREIN

 

1   On each Section 2.19 Effective Date, insert the correct number.


[            ] 2 AMENDED AND RESTATED GUARANTY

This [            ] AMENDED AND RESTATED GUARANTY dated as of             , 20[    ] (this “ Guaranty ”), is made by Encana Corporation, a corporation subsisting under the Canada Business Corporations Act (the “ Guarantor ”), in favor of the Administrative Agent, the Lenders and the Issuing Banks referred to below (the “ Lender Parties ”) and amends and restates in entirety the Original Guaranty (as defined below).

PRELIMINARY STATEMENTS:

1. Alenco Inc., a Delaware corporation (the “ Borrower ”) entered into a Credit Agreement dated as of December 22, 2003 (the “ 2003 Credit Agreement ”), with Barclays Capital (“ Barclays Capital ”), the investment banking division of Barclays Bank PLC (“Barclays Bank”, and together with Barclays Capital, “Barclays”), Citigroup Global Markets Inc. (“ CGMI ”), Barclays Bank, Citibank, N.A. (“ Citibank ”) and the initial lenders named therein, and in connection therewith, the Guarantor issued the Guaranty, dated as of December 22, 2003 (the “ 2003 Guaranty ”), as a condition precedent to the making of advances under the 2003 Credit Agreement.

2. The Borrower, Barclays, CGMI and Citibank and the initial lenders named therein amended and restated the 2003 Credit Agreement pursuant to the Amended and Restated Credit Agreement dated as of December 8, 2004, as amended by the First Amendment to Amended and Restated Credit Agreement dated as of January 12, 2005 and by the Second Amendment to Amended and Restated Credit Agreement dated as of December 2, 2005 (as amended and restated, the “ 2004 Credit Agreement ”), and in connection therewith, the Guarantor issued the Amended and Restated Guaranty dated as of December 8, 2004 (the “ 2004 Guaranty ”), as a condition precedent to the effectiveness of the 2004 Credit Agreement.

3. The Borrower, Barclays, CGMI, BNP Paribas, The Bank of Tokyo Mitsubishi UFJ, Ltd. and The Royal Bank of Scotland plc and the initial lenders named therein amended and restated the 2004 Credit Agreement pursuant to the Amended and Restated Credit Agreement dated as of December 14, 2006, as amended by Amendment No. 1 to the Amended and Restated Credit Agreement effective as of July 31, 2009 (as amended and restated and amended, the “ Original Credit Agreement ”), and in connection therewith, the Guarantor issued the Amended and Restated Guaranty dated as of December 14, 2006 (the “ Original Guaranty ”), as a condition precedent to the effectiveness of the Original Credit Agreement.

4. The Borrower, Bank of America, N.A., The Royal Bank of Scotland N.V., (Canada) Branch, Citibank, Barclays and JPMorgan Chase Bank, N.A. and the initial lenders named therein are parties to a Second Amended and Restated Credit Agreement dated as of October 20, 2011, pursuant to which such parties have amended and restated the Original Credit Agreement on the terms and conditions set

 

2   On each Section 2.19 Effective Date, insert the correct number.

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


forth in such Amended and Restated Credit Agreement (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms, the “ Credit Agreement ”; capitalized terms defined therein and not otherwise defined herein are used herein as therein defined).

5. The Guarantor will derive substantial direct and indirect benefits from the transactions contemplated by the Credit Agreement.

6. It is a condition precedent to the ability of the Borrower to exercise its rights under Section 2.19 of the Credit Agreement that the Guarantor shall have executed and delivered this Guaranty.

NOW, THEREFORE, in consideration of the premises, in order to induce the Lead Arrangers, the Syndication Agents, the Administrative Agent and the Lender Parties to enter into the Credit Agreement, the Guarantor hereby agrees as follows:

Section 1.  Guaranty . The Guarantor hereby unconditionally and irrevocably guarantees as guarantor and not merely as surety, the punctual payment when due, whether at stated maturity, by acceleration or otherwise, of all obligations of the Borrower now or hereafter existing under the Credit Agreement, whether for principal, interest, fees, expenses or otherwise (such obligations being the “ Guaranteed Obligations ”), and agrees to pay any and all reasonable expenses (including reasonable counsel fees and out-of-pocket expenses) incurred by the Administrative Agent or any other Lender Party in enforcing any rights under this Guaranty. Without limiting the generality of the foregoing, the Guarantor’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by the Borrower to the Administrative Agent or any other Lender Party under the Credit Agreement but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy , reorganization or similar proceeding involving the Borrower.

Section 2.  Guaranty Absolute . The Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the Credit Agreement, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Administrative Agent or any other Lender Party with respect thereto. The obligations of the Guarantor under this Guaranty are independent of the Guaranteed Obligations, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Borrower or whether the Borrower is joined in any such action or actions. The liability of the Guarantor under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and the Guarantor hereby irrevocably waives any defenses it may now or hereafter have in any way relating to, any or all of the following:

(a) any lack of validity or enforceability of the Credit Agreement or any agreement or instrument relating thereto;

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


(b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations, or any other amendment or waiver of or any consent to departure from the Credit Agreement, including, without limitation, any increase in the Guaranteed Obligations resulting from the extension of additional credit to the Borrower or any of its Subsidiaries or otherwise;

(c) any taking, exchange, release or non-perfection of any collateral, or any taking, release or amendment or waiver of or consent to departure from any other guaranty, for all or any of the Guaranteed Obligations;

(d) any manner of application of collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or any other assets of the Borrower or any of its Subsidiaries;

(e) any change, restructuring or termination of the corporate structure or existence of the Borrower or any of its Subsidiaries or any transfer of the Guaranteed Obligations to a successor;

(f) any failure of any Lender Party to disclose to the Borrower or the Guarantor any information relating to the financial condition, operations, properties or prospects of the Guarantor or the Borrower, as the case may be, now or in the future known to any Lender Party (the Guarantor waiving any duty on the part of the Lender Parties to disclose such information); or

(g) any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by the Administrative Agent or any other Lender Party that might otherwise constitute a defense available to, or a discharge of, the Borrower, the Guarantor or any other guarantor or surety.

This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by any Lender Party or any other Person upon the insolvency, bankruptcy or reorganization of the Borrower or otherwise, all as though such payment had not been made.

Section 3.  Waivers and Acknowledgments . (a) The Guarantor hereby waives promptness, diligence, notice of acceptance and any other notice with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that the Administrative Agent or any other Lender Party protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against the Borrower or any other Person or any collateral.

(b) The Guarantor hereby waives any right to revoke this Guaranty, and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future.

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by the Credit Agreement and that the waivers set forth in this Section 3 are knowingly made in contemplation of such benefits.

Section 4.  Subrogation . The Guarantor will not exercise any rights that it may now or hereafter acquire against the Borrower or any other insider guarantor that arise from the existence, payment, performance or enforcement of the Guarantor’s obligations under this Guaranty, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Administrative Agent or any other Lender Party against the Borrower or any other insider guarantor or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Borrower or any other insider guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash and the Commitments shall have expired or terminated. If any amount shall be paid to the Guarantor in violation of the preceding sentence at any time prior to the later of the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty and the Termination Date, such amount shall be held in trust for the benefit of the Administrative Agent and the other Lender Parties and shall forthwith be paid to the Administrative Agent to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of the Credit Agreement, or to be held as collateral for any Guaranteed Obligations or other amounts payable under this Guaranty thereafter arising. If (a) the Guarantor shall make payment to the Administrative Agent or any other Lender Party of all or any part of the Guaranteed Obligations, (b) all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall be paid in full in cash and (c) the Termination Date shall have occurred, the Administrative Agent and the other Lender Parties will, at the Guarantor’s request and expense, execute and deliver to the Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Guarantor of an interest in the Guaranteed Obligations resulting from such payment by the Guarantor.

Section 5.  Payments Free and Clear of Taxes, Etc . (a) Any and all payments made by the Guarantor hereunder shall be made, in accordance with Section 2.14 of the Credit Agreement, free and clear of and without deduction for any and all Taxes. If the Guarantor shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder to the Administrative Agent or any other Lender Party, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section) the Administrative Agent or such other Lender Party (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Guarantor shall make such deductions and (iii) the Guarantor shall pay the

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.

(b) In addition, the Guarantor agrees to pay any Other Taxes.

(c) The Guarantor will indemnify the Administrative Agent and each Lender Party for the full amount of Taxes or Other Taxes imposed on or paid by the Administrative Agent or such other Lender Party (as the case may be) and any liability (including penalties, additions to tax, interest and expenses) arising therefrom or with respect thereto. This indemnification shall be made within 30 days from the date the Administrative Agent or such other Lender Party (as the case may be) makes written demand therefor.

(d) Within 30 days after the date of any payment of Taxes by or on behalf of the Guarantor, the Guarantor will furnish to the Administrative Agent, at its address set forth in Section 8.02(a)(ii) of the Credit Agreement, the original receipt of payment thereof or a certified copy of such receipt.

(e) Without prejudice to the survival of any other agreement of the Guarantor hereunder, the agreements and obligations of the Guarantor contained in this Section 5 shall survive the payment in full of the Guaranteed Obligations and all other amounts payable under this Guaranty.

(f) Each Lender Party that is not a “United States person” within the meaning of Section 7701(a)(30) of the Internal Revenue Code, on or prior to the date of its execution and delivery of the Credit Agreement in the case of each initial Lender Party and on the date of the Assignment and Assumption pursuant to which it becomes a Lender Party in the case of each other Lender Party, and from time to time thereafter as requested in writing by the Guarantor or upon the obsolescence, expiration or invalidity of any form previously delivered by such Lender Party (but only so long as such Lender Party remains lawfully able to do so), provide the Guarantor with such original forms or statements as such Lender Party is required to provide to the Borrower or Administrative Agent pursuant to Section 2.15 of the Credit Agreement, and the relevant provisions of Section 2.15 of the Credit Agreement shall govern the rights and obligations of such Lender Party with respect thereto.

(g) In the event that an additional payment is made under this Section 5 for the account of any Lender Party and such Lender Party, in its sole discretion, determines that it has finally and irrevocably received or been granted a credit against or release or remission for, or repayment of, any tax paid or payable by it in respect of or calculated with reference to the deduction or withholding giving rise to such additional payment, such Lender Party shall, to the extent that it determines that it can do so without prejudice to the retention of the amount of such credit, relief, remission or repayment, pay to the Guarantor such amount as such Lender Party shall, in its sole discretion, have determined to be attributable to such deduction or withholding and which will leave such Lender Party (after such payment) in no worse position than it would have been in if the Guarantor had not been required to make such deduction or withholding; provided that

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


the Guarantor, upon the request of such Lender Party, agrees to pay the amount paid over to the Guarantor (plus penalties, interest and other reasonable charges) to such Lender Party in the event such Lender Party is required to repay such credit, relief, remission or repayment to the applicable taxation authority. Nothing herein contained shall interfere with the right of a Lender Party to arrange its tax affairs in whatever manner it thinks fit nor oblige any Lender Party to claim any tax credit or to disclose any information relating to its tax affairs or any computations in respect thereof or require any Lender Party to do anything that would prejudice its ability to benefit from any other credits, reliefs, remissions or repayments to which it may be entitled.

(h) Upon the request of the Borrower or the Guarantor or upon the obsolescence, expiration or invalidity of any form previously delivered by such Lender Party, any Lender Party that is a “United States person” within the meaning of Section 7701(a)(30) of the Internal Revenue Code shall deliver to the Guarantor two original Internal Revenue Service form W-9 or any successor or other form prescribed by the Internal Revenue Service. If any Lender Party fails to deliver Internal Revenue Service form W-9 or any subsequent versions thereof or successors thereto as required herein, then the Guarantor may withhold from any payment to such Lender Party the applicable backup withholding tax imposed by the Internal Revenue Code and remit such amount to the applicable taxation authority if required by law, without reduction, and such Lender Party shall not be entitled to any additional amounts under this Section 5 with respect to Taxes imposed by the United States by reason of such failure.

Section 6.  Representations and Warranties . The Guarantor hereby represents and warrants as follows:

(a) The Guarantor is a corporation duly amalgamated and validly existing under the laws of Canada.

(b) The execution, delivery and performance by the Guarantor of this Guaranty, and the consummation of the transactions contemplated hereby, are within the Guarantor’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the Guarantor’s charter or by-laws or (ii) law or any contractual restriction binding on or affecting the Guarantor.

(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Guarantor of this Guaranty.

(d) This Guaranty has been duly executed and delivered by the Guarantor. This Guaranty is the legal, valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms, except to the extent that such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally from time to time in effect and may be subject to the discretion of courts with respect to the granting of equitable remedies and their power to stay proceedings for the execution

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


of judgments. The enforceability of the obligations of the Guarantor under this Guaranty is also subject to judicial application of foreign laws or foreign governmental actions affecting creditors’ rights.

(e) The Consolidated balance sheet of the Guarantor and its Subsidiaries as at December 31, 20[    ] 3 , and the related Consolidated statements of earnings and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of PricewaterhouseCoopers LLP, chartered accountants, copies of which have been furnished to each Lender Party, fairly present the Consolidated financial condition of the Guarantor and its Subsidiaries as at such date and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied. Except as has been disclosed to the Lenders in writing, since December 31, 20[    ], there has been no Material Adverse Change.

(f) Except as has been disclosed to the Lenders in writing, there is no action, suit, litigation or proceeding affecting the Guarantor or any of its Subsidiaries, including any Environmental Action, pending or, to the best of the Guarantor’s knowledge after reasonable investigation, overtly threatened, before any court, governmental agency or arbitrator that (i) is reasonably likely to be determined adversely, and if determined adversely, would have a Material Adverse Effect or (ii) purports to affect adversely the legality, validity or enforceability of this Guaranty or the consummation of the transactions contemplated thereby.

(g) The operations and properties of the Guarantor and each of its Subsidiaries comply in all material respects with all applicable laws, rules, regulations and orders, and any past non-compliance with any such applicable law, rule, regulation or order has been resolved without any ongoing obligations or costs which could reasonably be expected to have a Material Adverse Effect.

(h) Neither the Guarantor nor any of its Subsidiaries is an Investment Company, as such term is defined in the Investment Company Act of 1940, as amended.

(i) There are no conditions precedent to the effectiveness of this Guaranty that have not been satisfied or waived.

(j) The Guarantor has, independently and without reliance upon the Administrative Agent or any other Lender Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Guaranty, and the Guarantor has established adequate means of obtaining from any other Loan Parties on a continuing basis information pertaining to, and is now and on a continuing basis will be completely familiar with, the financial condition, operations, properties and prospects of such other Loan Parties.

 

3   Insert year immediately prior to date of this guaranty.

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


(k) The Guarantor has delivered to the Administrative Agent for delivery to each other Lender Party a true and complete copy of the Guarantor Credit Agreement referred to in Section 7(a) below as in effect on the date hereof.

Section 7.  Covenants . The Guarantor covenants and agrees that, so long as any part of the Guaranteed Obligations shall remain unpaid or any Lender shall have any Commitment:

(a) the Guarantor shall comply with each covenant set forth in Article 8 of the Extendible Revolving – Term Credit Facility dated as of October 12, 2011, (the “ Guarantor Credit Agreement ”) among the Guarantor, as borrower, the financial and other institutions party thereto from time to time as lenders, and Royal Bank of Canada, as administrative agent, as such agreement may be further amended, amended and restated, supplemented or otherwise modified from time to time (i) in accordance with the terms thereof and, so long as the consent of all of the Lender Parties is not required pursuant to any of the clauses contained in the proviso to Section 8 hereof, with the consent of the Required Lenders or (ii) in accordance with the terms thereof so long as Lenders owed at least 66.67% of the then aggregate unpaid principal amount of the Revolving Credit Advances owing to Lenders or, if no Revolving Credit Advances are then outstanding, Lenders having at least 66.67% of the Revolving Credit Commitments shall not object in writing to the effectiveness for purposes of this Guaranty of any such amendment, waiver, supplement or other modification within ten (10) Business Days after receipt by the Administrative Agent of the Guarantor’s written request that such amendment, waiver, supplement or other modification become effective for purposes of this Guaranty; provided , however , if the Guarantor Credit Agreement shall for any reason terminate or otherwise cease to be valid and binding on the Guarantor at any time, the term “Guarantor Credit Agreement” as used herein shall mean the Guarantor Credit Agreement as in effect for purposes of this Guaranty immediately prior to such time after giving effect to any amendments, waivers, supplements or other modifications thereof which were effective prior to such time for purposes of this Guaranty as provided in clause (i) or (ii) of this Section 7(a);

(b) the Guarantor shall retain, directly or indirectly, legal and beneficial ownership of 100% percent of the Voting Shares of the Borrower; and

(c) the Guarantor shall provide to the Administrative Agent (with sufficient copies for each of the Lender Parties) (i) all financial statements, certificates, reports and other information required to be delivered to the “Agent” pursuant to Sections 8.1(h) and 8.1(q)(ii) of the Guarantor Credit Agreement and (ii) all notices required to be delivered to the “Agent” pursuant to Section 8.1(q)(i) of the Guarantor Credit Agreement, in each case as and when required to be delivered thereunder.

Section 8.  Amendments, Etc . No amendment or waiver of any provision of this Guaranty and no consent to any departure by the Guarantor therefrom shall in any event be effective unless the same shall be in writing and signed by the Required Lenders, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided , however , that no amendment,

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


waiver or consent shall, unless in writing and signed by all of the Lender Parties, (a) limit the liability of the Guarantor hereunder, (b) postpone any date fixed for payment hereunder, (c) change the number of Lender Parties required to take any action hereunder, or (d) amend or waive any of the terms of Section 7(a) or this Section 8.

Section 9.  Notices, Etc . (a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in paragraph (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows:

(i) if to the Guarantor, to it at Encana Corporation, 1800, 855 – 2 nd Street S.W., Calgary, Alberta, T2P 2S5, Canada, Attention: Executive Vice-President & Chief Financial Officer, Fax: (403) 645-4853 with a copy to Treasury Department, Fax: (403) 718-6940;

(ii) if to the Administrative Agent, to Citibank, N.A. at 1615 Brett Road, Building #3, New Castle, Delaware 19720, Attention of Bank Loan Syndications; (Facsimile No (212) 994-0961; Telephone No (302) 323-5499)

Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices delivered through electronic communications, to the extent provided in paragraph (b) below, shall be effective as provided in said paragraph (b).

(b) So long as Citibank is the Administrative Agent, notices and other communications required to be delivered hereunder may be delivered to the Administrative Agent in an electronic medium in a format acceptable to the Administrative Agent by e-mail at oploanswebadmin@citigroup.com, or by other electronic communications (including other e-mail addresses and Internet and intranet websites) pursuant to procedures approved by the Administrative Agent.

(c) Change of Address, etc . Any party may change its address or facsimile number for notices or other communications hereunder by notices to the other parties hereto.

(d) Platform .

(i) The Guarantor agrees that the Administrative Agent may, but shall not be obligated to, make the Communications (as defined below) available to the Lender Parties by posting the Communications on Debt Domain, Intralinks, Syndtrak or a substantially similar electronic system (the “ Platform ”).

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


(ii) The Platform is provided “as is” and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (the “ Agent Parties ”) have any liability to the Guarantor, any Lender Party or any other Person or entity for damages of any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Guarantor’s or the Administrative Agent’s transmission or communication through the Platform except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative Agent or such Related Party acted with gross negligence or willful misconduct in connection with such transmission. “ Communications ” means, collectively, any notice, demand, communication, information, document or other material that the Guarantor provides to the Administrative Agent pursuant to this Guaranty or the transactions contemplated herein which is distributed to the Administrative Agent or any Lender Party by means of electronic communications pursuant to this Section, including through the Platform.

Section 10.  No Waiver; Remedies . No failure on the part of the Administrative Agent or any Lender Party to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

Section 11.  Indemnification . Without limitation on any other obligations of the Guarantor or remedies of the Lender Parties under this Guaranty, the Guarantor shall, to the fullest extent permitted by law, indemnify, defend and save and hold harmless each Lender Party from and against, and shall pay on demand, any and all losses, liabilities and damages, and reasonable costs, expenses and charges (including the reasonable fees and documented disbursements of such Lender Party’s legal counsel) suffered or incurred by such Lender Party as a result of any failure of any Guaranteed Obligations to be the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their terms.

Section 12.  Continuing Guaranty; Assignments under the Credit Agreement . This Guaranty is a continuing guaranty and shall (a) remain in full force and effect until the later of the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty and the Termination Date, (b) be binding upon the Guarantor, its successors and assigns and (c) inure to the benefit of and be enforceable by the Administrative Agent and the other Lender Parties and their

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


successors, transferees and assigns. Without limiting the generality of the foregoing clause (c), any Lender Party may assign or otherwise transfer all or any portion of its rights and obligations under the Credit Agreement (including, without limitation, all or any portion of its Commitment and the Advances owing to it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such Lender Party herein or otherwise, in each case as and to the extent provided in, and in accordance with the terms of Section 8.07 of the Credit Agreement.

Section 13.  Judgment . (a) If, for the purpose of obtaining judgment in any court, it is necessary to convert a sum due hereunder or under the Credit Agreement in United States Dollars into another currency, the Guarantor agrees, to the fullest extent that it may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Lender Parties could purchase United States Dollars with such other currency at 11:00 a.m. (New York City time) on the Business Day preceding that on which final judgment is given.

(b) United States Dollars are the sole currency of account and payment for all sums payable by the Guarantor under or in connection with this Guaranty, including damages. The obligation of the Guarantor in respect of any sum due from it hereunder shall, notwithstanding any judgment in a currency other than United States Dollars, be discharged only to the extent that on the Business Day next succeeding receipt by the Lender Parties of any sum adjudged to be so due in such other currency the Lender Parties may in accordance with normal banking procedures purchase United States Dollars with such other currency; if the United States Dollars so purchased are less than the sum originally due to the Lender Parties in United States Dollars, the Guarantor agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Lender Parties against such loss.

Section 14.  Governing Law; Jurisdiction; WAIVER OF JURY TRIAL, Etc . (a) This Guaranty shall be governed by, and construed in accordance with, the laws of the State of New York.

(b) Each of the parties hereto unconditionally agrees that it will not commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against the Administrative Agent, the Guarantor or any Related Party of the foregoing in any way relating to this Guaranty, in any forum other than the courts of the State of New York sitting in New York County, and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that all claims in respect of any such action, litigation or proceeding may be heard and determined in such New York State court or, to the fullest extent permitted by applicable law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The Guarantor hereby irrevocably appoints and empowers CT Corporation System (the “ Process Agent ”) as its agent in the

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


State of New York pursuant to the designation of agent for service delivered (or to be delivered) pursuant to Section 3.01(f)(ix) of the Credit Agreement to receive on behalf of the Guarantor and its property service of copies of the summons and complaint and any other process that may be served in any action, litigation or proceeding arising out of or relating to this Guaranty. The Guarantor hereby further irrevocably consents to the service of process in any such action, litigation or proceeding in such courts by the mailing thereof by any Lender Party by registered or certified mail, postage prepaid, to the Process Agent, and hereby further agrees that the failure of the Process Agent to give any notice of any such service to the Guarantor shall not impair or affect the validity of such service or of any judgment rendered in any action or proceeding based thereon. The Guarantor agrees that a final judgment in any such action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Guaranty shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Guaranty in the courts of any jurisdiction.

(c) The Guarantor irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Guaranty in any New York State or federal court. The Guarantor hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(d) THE GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THIS GUARANTY, THE CREDIT AGREEMENT, THE TRANSACTIONS CONTEMPLATED THEREBY OR THE ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY OTHER LENDER PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.

(e) To the extent that the Guarantor has or hereafter may acquire any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, the Guarantor hereby irrevocably waives such immunity in respect of its obligations under this Guaranty.

[Remainder of page intentionally left blank.]

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly executed and delivered by its officers thereunto duly authorized as of the date first                      above written.

 

ENCANA CORPORATION,
as Guarantor
By:  

 

  Name:
  Title:
By:  

 

  Name:
  Title:

 

Consented to:
CITIBANK, N.A., as Administrative Agent
By  

 

  Name:
  Title:

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


EXHIBIT F - FORM OF

EXTENSION NOTICE

EXTENSION NOTICE

[Date]

 

Citibank, N.A., as Administrative Agent
for the Lenders and Issuing Banks party to the
Credit Agreement referred to below
399 Park Avenue
New York, New York 10043

Attention:                    

Alenco Inc.

Ladies and Gentlemen:

Reference is made to the Second Amended and Restated Credit Agreement, dated as of October 20, 2011 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among Alenco Inc., a Delaware corporation (the “ Borrower ”), Merrill Lynch, Pierce, Fenner & Smith Incorporated, RBS Securities Inc., Citigroup Global Markets Inc., Barclays Capital (“BARCLAYS CAPITAL”), the investment bank division of Barclays Bank PLC (“BARCLAYS BANK”, and together with BARCLAYS CAPITAL, “BARCLAYS”) and J.P. Morgan Securities LLC as Lead Arrangers for the Lender Parties, Bank of America, N.A. and The Royal Bank of Scotland N.V., (Canada) Branch, as Syndication Agents for the Lender Parties, Citibank, N.A., as the Swing Line Bank and Administrative Agent for the Lender Parties. Terms defined in the Credit Agreement are used herein as therein defined.

Pursuant to Section 8.11(b) of the Credit Agreement, the Lender named below hereby notifies the Administrative Agent as follows:

[The Lender named below desires to extend the Termination Date with respect to its Revolving Credit Commitment and Swing Line Sub-Commitment until the Extended Termination Date.]

[The Lender named below is also an Issuing Bank and desires to extend the Termination Date with respect to its Letter of Credit Sub-Commitment until the Extended Termination Date.]

[The Lender named below desires to extend the Termination Date with respect to its Revolving Credit Commitment and Swing Line Sub-Commitment until the

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


Extended Termination Date and offers to increase its Revolving Credit Commitment to a maximum aggregate amount of $        .]

[The Lender named below is also an Issuing Bank and desires to extend the Termination Date with respect to its Letter of Credit Sub-Commitment until the Extended Termination Date and offers to increase its Letter of Credit Sub-Commitment to a maximum aggregate amount of $        .]

[The Lender named below does NOT desire to extend the Termination Date with respect to its Revolving Credit Commitment and Swing Line Sub-Commitment until the Extended Termination Date.]

[The Lender named below is also an Issuing Bank and does NOT desire to extend the Termination Date with respect to its Letter of Credit Sub-Commitment until the Extended Termination Date.]

This notice is subject in all respects to the terms of the Credit Agreement and is irrevocable.

 

Very truly yours,
[NAME OF LENDER]
By  

 

Name:  
Title:  

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


EXHIBIT G - FORM OF

COMPLIANCE CERTIFICATE

COMPLIANCE CERTIFICATE

 

TO:    CITIBANK, N.A., in its capacity as administrative agent of the Lenders and Issuing Banks (the “ Administrative Agent ”)
AND TO:    The Lenders and Issuing Banks

1. Reference is made to the Second Amended and Restated Credit Agreement dated as of October 20, 2011 among Alenco Inc., a Delaware corporation (the “ Borrower ”), Merrill Lynch, Pierce, Fenner & Smith Incorporated, RBS Securities Inc., Citigroup Global Markets Inc., Barclays Capital (“BARCLAYS CAPITAL”), the investment bank division of Barclays Bank PLC (“BARCLAYS BANK”, and together with BARCLAYS CAPITAL, “BARCLAYS”) and J.P. Morgan Securities LLC as Lead Arrangers for the Lender Parties, Bank of America, N.A. and The Royal Bank of Scotland N.V., (Canada) Branch, as Syndication Agents for the Lender Parties, Citibank, N.A., as the Swing Line Bank and Administrative Agent for the Lender Parties (as amended, amended and restated, modified, supplemented or restated the “ Credit Agreement ”). Capitalized terms used herein, and not otherwise defined herein, shall have the meanings attributed to such terms in the Credit Agreement.

2. This Compliance Certificate is delivered to the Administrative Agent pursuant to Section 5.01(h) of the Credit Agreement.

3. The undersigned, [name], [title] of the Borrower, hereby states that, as of the date of this Compliance Certificate, I have made or caused to be made such investigations as are necessary or appropriate for the purposes of this Compliance Certificate and to the best of my knowledge:

(a) the consolidated financial statements for the [Fiscal Quarter OR fiscal year] ending [date], [                    ] provided to the Administrative Agent pursuant to Section 5.01(h) of the Credit Agreement were prepared in accordance with GAAP and present fairly, in all material respects, the financial position of the Borrower as at the date thereof;

(b) the representations and warranties made by the Borrower in Section 4.01 of the Credit Agreement are true and correct in all material respects, except as has heretofore been notified to the Administrative Agent by the Borrower in writing [or except as described in Schedule      hereto];

(c) no Default has occurred and is continuing except as has heretofore been notified to the Administrative Agent by the Borrower in writing [or except as described in Schedule      hereto].

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


I give this Compliance Certificate on behalf of the Borrower and in my capacity as the [title] of the Borrower, and no personal liability is created against or assumed by me in the giving of this Certificate.

Dated             , this [    ] of [month],             .

 

 

Name:
Title:

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


EXHIBIT H - FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

U.S. TAX COMPLIANCE CERTIFICATE

Reference is made to the Second Amended and Restated Credit Agreement dated as of October 20, 2011 among Alenco Inc., a Delaware corporation (the “ Borrower ”), Merrill Lynch, Pierce, Fenner & Smith Incorporated, RBS Securities Inc., Citigroup Global Markets Inc., Barclays Capital (“BARCLAYS CAPITAL”), the investment bank division of Barclays Bank PLC (“BARCLAYS BANK”, and together with BARCLAYS CAPITAL, “BARCLAYS”) and J.P. Morgan Securities LLC as Lead Arrangers for the Lender Parties, Bank of America, N.A. and The Royal Bank of Scotland N.V., (Canada) Branch, as Syndication Agents for the Lender Parties, Citibank, N.A., as the Swing Line Bank and Administrative Agent for the Lender Parties (as amended, modified, supplemented or amended and restated from time to time, the “ Credit Agreement ”). Capitalized terms used herein, and not otherwise defined herein, shall have the meanings attributed to such terms in the Credit Agreement.

Under penalties of perjury, the undersigned hereby certifies to the Administrative Agent and to the Borrower that:

(1) The undersigned is the sole record and beneficial owner of the loans in respect of which it is providing this certificate.

(2) The undersigned is not a bank (as such term is used in Section 881(c)(3)(A) of the Internal Revenue Code). In this regard, the undersigned further represents and warrants that:

(a) the undersigned is not subject to regulatory or other legal requirements as a bank in any jurisdiction; and

(b) the undersigned has not been treated as a bank for purposes of any tax, securities law or other filing or submission made to any governmental authority, any application made to a rating agency or qualification for any exemption from tax, securities law or other legal requirements;

(3) The undersigned is not a “10-percent shareholder” of the Borrower (as such term is used in Section 881(c)(3)(B) of the Internal Revenue Code); and

(4) The undersigned is not a controlled foreign corporation related to the Borrower within the meaning of Section 864(d)(4) of the Internal Revenue Code.

We have furnished you with a certificate of our non-U.S. person status on Internal Revenue Service Form W-8BEN. By executing this U.S. Tax Compliance Certificate, the undersigned agrees that (a) if the information provided on this certificate changes, the undersigned shall so inform the Borrower in writing within thirty days of such change and (b) the undersigned shall furnish the Borrower a properly completed and currently effective certificate in

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


either the calendar year in which payment is to be made by the Borrower to the undersigned, or in either of the three calendar years preceding such payment.

 

    [NAME OF LENDER PARTY]
    By:  

 

    Name:  
    Title:  
    [ADDRESS]
Dated:             , 20    .      
    [NAME OF LENDER PARTY]
    By:  

 

    Name:  
    Title:  
    [ADDRESS]

Dated:             , 20    .

     

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


EXHIBIT I - FORM OF

ACCESSION LETTER AGREEMENT

ACCESSION LETTER AGREEMENT

 

Citibank, N.A., as Administrative Agent

for the Lender Parties party to the

Credit Agreement referred to below

399 Park Avenue

New York, New York 10043

Attention:                    

Alenco Inc.

Ladies and Gentlemen:

Reference is made to the Second Amended and Restated Credit Agreement dated as of October 20, 2011 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among Alenco Inc., a Delaware corporation (the “ Borrower ”), Merrill Lynch, Pierce, Fenner & Smith Incorporated, RBS Securities Inc., Citigroup Global Markets Inc., Barclays Capital (“BARCLAYS CAPITAL”), the investment bank division of Barclays Bank PLC (“BARCLAYS BANK”, and together with BARCLAYS CAPITAL, “BARCLAYS”) and J.P. Morgan Securities LLC as Lead Arrangers for the Lender Parties, Bank of America, N.A. and The Royal Bank of Scotland N.V., (Canada) Branch, as Syndication Agents for the Lender Parties, Citibank, N.A., as the Swing Line Bank and Administrative Agent for the Lender Parties and the Lender Parties parties thereto. Terms defined in the Credit Agreement are used herein as therein defined.

The Eligible Assignee named below has agreed to provide Revolving Credit Commitments to the Borrower pursuant to Section 2.19(b) of the Credit Agreement. Pursuant to Section 2.19(b) of the Credit Agreement, the Eligible Assignee named below and the Borrower agree that the Eligible Assignee, by its execution and delivery of this Accession Letter Agreement, shall become a party to the Credit Agreement as of the Increase Date specified in the Increase Request sent by the Borrower on [— date —] and shall have the rights and obligations of a Lender under the Credit Agreement as of such Increase Date.

The Eligible Assignee hereby assumes a Revolving Credit Commitment in the amount set forth on Schedule 1 hereto. [After giving effect to such assignment, the aggregate amount of the Advances owing to the Eligible Assignee will be as set forth on Schedule 1 hereto.] 1

 

1   Include this sentence if any Advances are outstanding as of the relevant Increase Date.

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


The Eligible Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Accession Letter Agreement and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 8.07(b)(iii), (v) and (vi) of the Credit Agreement (subject to such consents, if any, as may be required under Section 8.07(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to enter into this Accession Letter Agreement and it is experienced in transactions of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 5.01(h) thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Accession Letter Agreement, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Accession Letter Agreement, and (vii) if it is organized under the laws of a jurisdiction outside of the United States, attached to this Accession Letter Agreement is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the undersigned; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.

Following the execution of this Accession Letter Agreement, it will be delivered to the Administrative Agent and the Issuing Banks for acceptance and recording by the Administrative Agent and approval by the Issuing Banks and the Swing Line Bank. The effective date for this Accession Letter Agreement shall be the later of (i) the date of acceptance hereof by the Administrative Agent and (ii) the date of approval hereof by the Issuing Banks and the Swing Line Bank, unless otherwise specified on Schedule 1 hereto.

Upon such acceptance and recording by the Administrative Agent, as of the Increase Date specified in the Increase Request sent by the Borrower on [— date —], the Eligible Assignee shall be a party to the Credit Agreement and, to the extent provided in this Accession Letter Agreement, have the rights and obligations of a Lender and, if applicable, of an Issuing Bank thereunder.

This Accession Letter Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of Schedule 1 to this Accession Letter Agreement by telecopier shall be effective as delivery of a manually executed counterpart of this Accession Letter Agreement.

This Accession Letter Agreement is subject in all respects to the terms of the Credit Agreement and is irrevocable.

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


This Accession Letter Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.

[Remainder of page intentionally left blank.]

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


Very truly yours,
[NAME OF NEW LENDER],
as Eligible Assignee
By  

 

Name:  
Title:  

 

Accepted as of this      day of             , 20    
ALENCO INC.
By  

 

Name:  
Title:  
By  

 

Name:  
Title:  
CITIBANK, N.A.,
as Administrative Agent and Issuing Bank
By  

 

Name:  
Title:  
BARCLAYS BANK PLC,
as Issuing Bank
By  

 

Name:  
Title:  

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement


Schedule 1 to the Accession Letter Agreement

After giving effect to this Accession Letter Agreement:

 

Eligible Assignee‘s Revolving Credit Commitment amount:

   $               

[Principal amount of Advances payable to Eligible Assignee:

   $              ] 2  

Effective Date:             , 20    

 

2   Include if any Advances are outstanding as of the relevant Increase Date

 

Alenco – Exhibits to Second Amended and Restated Credit Agreement

Exhibit 10.3

STRICTLY CONFIDENTIAL

June 15, 2012

To the banks, financial institutions

and other institutional lenders

(collectively, the “Lenders”) parties

to the Credit Agreement referred to

below and to Citibank, N.A.,

as Administrative Agent

1615 Brett Road, Building #3

New Castle, DE 19720

Attention: Bank Loan Syndications

Facsimile: (212) 994-0961

Re: ACCOUNTING CHANGE NOTICE, AMENDMENT AND NOTICE OF AMENDMENT TO PARENT CREDIT AGREEMENT

We refer to (i) the Second Amended and Restated Credit Agreement dated as of October 20, 2011 among Alenco Inc. (“ Alenco ”), the financial and other institutions named therein from time to time as Lenders and Citibank. N.A. as administrative agent (the “ Credit Agreement ”) and (ii) the Second Amended and Restated Guaranty dated as of October 20, 2011 from Encana Corporation (“ Guarantor ”) in favor of the lender parties referred to therein (the “ Guaranty ”). Terms and expressions defined in the Credit Agreement which are used and not otherwise defined herein shall have the same meanings ascribed to them in the Credit Agreement.

 

I. Accounting Change Notice

As you are aware, in connection with the adoption by Guarantor of U.S. generally accepted accounting principles ( “U.S. GAAP” ) for 2012 financial reporting, Alenco has adopted U.S. GAAP for its financial reporting purposes. Alenco had previously prepared its financial statements under Canadian generally accepted accounting principles (“Canadian GAAP”) which, commencing in 2011, included International Financial Reporting Standards (“IFRS”), which are generally accepted accounting principles for publicly accountable enterprises in Canada.

Pursuant to Section 1.03(a) of the Credit Agreement, Alenco hereby notifies the Agent that:

 

(a) a change in GAAP, as a result of the conversion to U.S. GAAP, has occurred;

 

(b) such change is material in respect of the calculation of certain financial terms set forth in the Credit Agreement; and


(c) such change caused:

 

  (i) certain amounts required to be determined pursuant to the definitions of “Consolidated Net Worth”, “Consolidated Tangible Assets” and “Consolidated Net Tangible Assets”, and “Section 6.01(f) Consolidated Net Tangible Assets” contained in the Credit Agreement, and

 

  (ii) certain asset value amounts required to be determined pursuant to the Credit Agreement,

for the purposes of certain financial tests in Section 6.01(d) and (f) of the Credit Agreement, and certain financial terms used in the definitions of the Credit Agreement (each, a “Financial Covenant/Term”) to be materially different than the amount that would be determined without giving effect to such change (collectively, the “Accounting Changes”) .

Alenco desires to amend such Financial Covenants/Terms to make appropriate adjustments to eliminate the effect of the Accounting Changes.

The criterion for changes to the Financial Covenants/Terms is set forth in Section 1.03(b) of the Credit Agreement:

“...the result of the evaluation of the Borrower’s financial condition shall be substantially the same after such Accounting Change as if such Accounting Change had not been made.”

The Accounting Changes have occurred as a result of the transition to U.S. GAAP as of January 1, 2012. The adoption of U.S. GAAP has resulted in a number of differences between Guarantor’s previously reported 2011 year end IFRS results and the recently released 2011 year end U.S. GAAP results. By far the most significant difference relates to the ceiling test for property, plant and equipment and the resulting impact on assets and shareholders’ equity. In each year from 2008-2011 there were ceiling test impairment differences between U.S. GAAP and IFRS. These impairments and their approximate impact on the financial statements are fully described in Note 27 to the Consolidated Financial Statements for the year ended December 31, 2011 which contains IFRS to U.S. GAAP reconciliations for comparative purposes as at and for the years ended December 31, 2011 and December 31, 2010.

Under U.S. GAAP, ceiling test impairments are recognized when the capitalized costs aggregated by country exceed the sum of the estimated after-tax future net cash flows from proved reserves using the 12-month average trailing prices, discounted at 10 percent. The discounted future net cash flows relating to proved oil and gas reserves are an indication of neither the fair market value of Guarantor’s oil and gas properties, nor the future net cash flows expected to be generated from such properties. U.S. GAAP does not allow ceiling test impairments to be subsequently reversed in the future.

The Accounting Changes have resulted in:

 

2


(a) a material reduction to Consolidated Net Worth which impacts the results obtained under the Consolidated Debt to Consolidated Capitalization Ratio and the thresholds in Sections 6.01(d) and 6.01(f) under the Credit Agreement;

 

(b) material reductions to Consolidated Tangible Assets, Consolidated Net Tangible Assets and Section 6.01 Consolidated Net Tangible Assets, which impact the maximum permitted amount of certain Guarantor Indebtedness and of Financing Debt of certain Subsidiaries of Guarantor in Section 6.01(f), the threshold in the definition of Restricted Subsidiary in Section 1.01, the threshold in the definition of 6.01(f) Restricted Subsidiary in Section 6.01(f), and the maximum amount of aggregate secured Indebtedness permitted pursuant to the proviso in Section 5.02(b)(i), respectively, under the Credit Agreement; and

 

(c) Material reductions in the amount of the assets of Guarantor and its Subsidiaries which impact the determination of the amount of the assets of the relevant Subsidiary and the amount of the consolidated assets of Guarantor and its Subsidiaries in the definition of Material Subsidiary and Material Guarantor Subsidiary under the Credit Agreement.

Please find attached supporting financial information in Schedule 1 relating to the calculation of Consolidated Net Worth, Consolidated Tangible Assets, Consolidated Net Tangible Assets, Section 6.01(f) Consolidated Net Tangible Assets, the Consolidated Debt to Consolidated Capitalization Ratio, the Guarantor Indebtedness and the Financing Debt of certain Subsidiaries (Section 6.01(f)), the thresholds in Sections 6.01(d) and 6.01(f) of the Credit Agreement and in the definitions of Restricted Subsidiary in Section 1.1 and Section 6.01(f) Restricted Subsidiary in Section 6.01(f) and the maximum amount of aggregate secured Indebtedness permitted pursuant to the proviso in Section 5.02(b)(i) of the Credit Agreement.

 

II. Amendments to Credit Agreement

As a result of the Accounting Changes, Alenco has requested, and the Required Lenders have indicated their willingness, on the terms and conditions stated below, to agree to the following amendments to the Credit Agreement:

 

(d) Section 1.01 is amended by inserting the following after the words “Non-Recourse Assets of the Guarantor” in the definition of Consolidated Net Worth: “and without giving effect to the non-cash ceiling test impairments and other changes in aggregate of $7,746,000,000 as at December 31, 2011 as a consequence of the adoption of U.S. GAAP”;

 

(e) Section 1.01 is amended by inserting the following after the words “Non-Recourse Assets of the Guarantor” in the definition of Consolidated Tangible Assets: “and without giving effect to the non-cash ceiling test impairments and other changes in aggregate of $10,585,000,000 as at December 31, 2011 as a consequence of the adoption of U.S. GAAP”;

 

(f) Section 1.01 is amended by deleting the last two lines of the definition of Consolidated Net Tangible Assets beginning with “in each case” and replacing them

 

3


  with the following: “and adding back the non-cash ceiling test impairments and other changes in aggregate of $11,251,000,000 as at December 31, 2011 as a consequence of the adoption of U.S. GAAP, in each case, as shown on the most recent annual audited or quarterly unaudited consolidated balance sheet of such Person computed in accordance with GAAP.”;

 

(g) Section 6.01(f) is amended by deleting the last two lines of the definition of Section 6.01(f) Consolidated Net Tangible Assets beginning with “in each case” and replacing them with the following: “and adding back the non-cash ceiling test impairments and other changes in aggregate of (i), if such Person is Borrower, $6,290,000,000 and (ii) if such Person is Guarantor, $11,251,000,000, as at December 31, 2011 as a consequence of the adoption of U.S. GAAP, in each case, as shown on the most recent annual audited or quarterly unaudited consolidated balance sheet of such Person computed in accordance with GAAP.”;

 

(h) Section 1.01 is amended by inserting the following after the words “as reflected therein” in the definition of Material Guarantor Subsidiary: “without giving effect to the non-cash ceiling test impairments and other changes as at December 31, 2011 as a consequence of the adoption of U.S. GAAP,”; and

 

(i) Section 1.01 is amended by inserting the following after the word “hereunder” in the definition of Material Subsidiary: “without giving effect to the non-cash ceiling test impairments and other changes as at December 31, 2011 as a consequence of the adoption of U.S. GAAP”.

 

(j) Section 1.01 is amended by adding a new definition of “U.S. GAAP” in alphabetical order, which reads as follows:

“U.S. GAAP means generally accepted accounting principles in the United States of America in effect from time to time.”

The amendment to the definition of Consolidated Net Worth allows the same quantum of debt for purposes of the Consolidated Debt to Consolidated Capitalization Ratio in Section 6.01(f) under U.S. GAAP as was allowed under Canadian GAAP and the same maximum limit for the thresholds in Sections 6.01(d) and 6.01(f) under U.S. GAAP as was allowed under Canadian GAAP. The amendments to the definitions of Consolidated Tangible Assets. Consolidated Net Tangible Assets and Section 6.01 Consolidated Net Tangible Assets allows the same maximum limit for the Financing Debt of certain Subsidiaries (Section 6.01(f)) and for the same amount of aggregate secured Indebtedness permitted pursuant to the proviso in Section 5.02(b)(i) and the same threshold for the determination of a Restricted Subsidiary pursuant to the definition thereof contained in Section 1.01, and of a Section 6.01(f) Restricted Subsidiary in Section 6.01(f), as was allowed under Canadian GAAP. The amendments to the definition of a Material Subsidiary and Material Guarantor Subsidiary allow the same determination of the value of the assets of the relevant Subsidiary and the value of the consolidated assets of Guarantor and its Subsidiaries as was determined under Canadian GAAP.

 

4


III. Notice of Amendment to Parent Credit Agreement

Pursuant to Section 7(a) of the Guaranty, the Guarantor hereby requests, and the Required Lenders have indicated their willingness to consent, on the terms and conditions stated below, that the amendments to the financial definitions in the Parent Credit Agreement set forth on Schedule II hereto (the “ Parent Amendments ”) shall become effective for the purposes of the Guaranty.

 

IV. Miscellaneous

The amendments set forth in Section II above and the consent set forth in Section III above (collectively, the “ Amendment ”) shall become effective as of the date first above written when, and only when, the Administrative Agent shall have received counterparts of this letter executed by the undersigned and the Required Lenders. The Amendment is made in accordance with the provisions of Section 8.01 of the Credit Agreement.

On and after the effectiveness of the Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, and each reference in the Notes and each of the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement, as amended by the Amendment.

The Credit Agreement, the Notes and each of the other Loan Documents, as specifically amended by the Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. The execution, delivery and effectiveness of the Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.

If you agree to the terms and provisions hereof, please evidence such agreement by executing and returning at least two counterparts of this Amendment to Susan L. Hobart, Shearman & Sterling LLP, 599 Lexington Avenue, New York, New York 10022.

This letter may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this letter by telecopier shall be effective as delivery of a manually executed counterpart of this letter.

 

5


The Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.

Yours truly,

 

ALENCO INC.
By:   /s/ Sherri A. Brillon
 

 

  Name:   Sherri A. Brillon
  Title:   President
By:   /s/ Gerald T. Ince
 

 

  Name:   Gerald T. Ince
  Title:   Treasurer
ENCANA CORPORATION
By:   /s/ Sherri A. Brillon
 

 

  Name:   Sherri A. Brillon
  Title:  

Executive Vice-President &

Chief Financial Officer

By:   /s/ Jeffrey G. Paulson
 

 

  Name:   Jeffrey G. Paulson
  Title:   Corporate Secretary


Agreed as of the date first above written:

CITIBANK, N.A.,

as Administrative Agent and as Lender

By   /s/ Andrew Sidford
 

 

  Name:   Andrew Sidford
  Title:   Vice President


Agreed as of the date first above written:

CITIBANK, N.A.,

as Administrative Agent and as Lender

By  
 

 

  Name:  
  Title:  
Bank of America, N.A., Canada Branch
By   /s/ James K.G. Campbell
 

 

  Name:   JAMES K.G. CAMPBELL
  Title:   DIRECTOR


Agreed as of the date first above written:

CITIBANK, N.A.,

as Administrative Agent and as Lender

By  
 

 

  Name:  
  Title:  

 

{Type or print name of Lender}
By  
 

 

  Name:  
  Title:  
THE ROYAL BANK OF SCOTLAND N.V., (CANADA) BRANCH
By:   /s/ David Wright
 

 

  David Wright, Director – Head of Client Management Canada
By:   /s/ Shehan DeSilva
 

 

  Shehan DeSilva, Vice President


Barclays Bank PLC
By   /s/ May Huang
 

 

  Name:   May Huang
  Title:   Assistant Vice President


Agreed as of the date first above written:
JPMorgan Chase Bank, N.A.,
By   /s/ Debra Hrelja
 

 

  Name:   DEBRA HRELJA
  Title:   VICE PRESIDENT


Agreed as of the date first above written:
The Bank of Tokyo-Mitsubishi UFJ, Ltd., as a Lender
By   /s/ Maria Ferradas
 

 

  Name:   Maria Ferradas
  Title:   Vice President


Agreed as of the date first above written:

CITIBANK, N.A.,

as Administrative Agent and as Lender

By  
 

 

  Name:  
  Title:  
DEUTSCHE BANK AG NEW YORK BRANCH
By   /s/ Ming K. Chu
 

 

  Name:   Ming K. Chu
  Title:   Vice President
By   /s/ Virginia Cosenza
 

 

  Name:   Virginia Cosenza
  Title:   Vice President


Agreed as of the date first above written:

CITIBANK, N.A.,

as Administrative Agent and as Lender

By  
 

 

  Name:  
  Title:  

DNB Bank ASA

By   /s/ Pal Boger
 

 

  Name:   PAL BOGER
  Title:   VICE PRESIDENT
By   /s/ Kristie Li
 

 

  Name:   Kristie Li
  Title:   First Vice President


Agreed as of the date first above written:

CITIBANK, N.A.,

as Administrative Agent and as Lender

By  
 

 

  Name:  
  Title:  
GOLDMAN SACHS LENDING PARTNERS LLC
By   /s/ Michelle Latzoni
 

 

  Name:   Michelle Latzoni
  Title:   Authorized Signatory


Agreed as of the date first above written:

CITIBANK, N.A.,

as Administrative Agent and as Lender

By  
 

 

  Name:  
  Title:  

Wells Fargo Bank

{Type or print name of Lender}
By   /s/ Jonathan Herrick
 

 

  Name:   Jonathan Herrick
  Title:   Assistant Vice President


Agreed as of the date first above written:

CITIBANK, N.A.,

as Administrative Agent and as Lender

By  
 

 

  Name:  
  Title:  

EXPORT DEVELOPMENT CANADA

{Type or print name of Lender}

 

By   /s/ Richard Leong
 

 

  Name:   Richard Leong
  Title:   Asset Manager
By   /s/ Talal M. Kairouz
 

 

  Name:   Talal M. Kairouz
  Title:   Senior Asset Manager


The Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.

Yours truly,

 

ALENCO INC.
By:  
 

 

  Gerald T. Ince
  Treasurer
ENCANA CORPORATION
By:  
 

 

  Name:
  Title:
By:  
 

 

  Name:
  Title:

 

Agreed as of the date first above written:

CITIBANK, N.A.,

as Administrative Agent and as Lender

By  
 

 

  Name:  
  Title:  

BNP Paribas

{Type or print name of Lender}
By   /s/ Claudia Zarate
 

 

  Name:  Claudia Zarate
  Title:    Director
By   /s/ Angela B. Arnold
 

 

  Name:  Angela B. Arnold
  Title:    Managing Director

 

6

Exhibit 10.4

US$1,000,000,000

AMENDMENT NO. 2 TO THE

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

Dated as of June 28, 2013

Among

ALENCO INC.,

as Borrower ,

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

RBS SECURITIES INC.

CITIGROUP GLOBAL MARKETS INC.

BARCLAYS BANK PLC

J.P. MORGAN SECURITIES LLC,

as Lead Arrangers ,

CITIBANK, N.A.,

as Administrative Agent ,

CITIBANK, N.A.,

as Swing Line Bank ,

BANK OF AMERICA, N.A.

THE ROYAL BANK OF SCOTLAND PLC, CANADA BRANCH,

as Syndication Agents ,

BARCLAYS BANK PLC

JPMORGAN CHASE BANK, N.A.,

as Documentation Agents ,

and

THE LENDERS PARTY HERETO,

as Lenders


AMENDMENT NO. 2 TO THE

CREDIT AGREEMENT

Dated as of June 28, 2013

AMENDMENT NO. 2 TO THE CREDIT AGREEMENT (this “ Amendment ”) among ALENCO INC., a Delaware corporation (the “ Borrower ”), the banks, financial institutions and other institutional lenders that are parties to the Credit Agreement referred to below (collectively, the “ Lenders ”) and CITIBANK, N.A., as administrative agent (the “ Administrative Agent ”) for the Lenders.

PRELIMINARY STATEMENTS:

(1) The Borrower, the Lenders and the Administrative Agent have entered into a Second Amended and Restated Credit Agreement dated as of October 20, 2011, and a letter amendment thereto dated as of June 15, 2012 (such Credit Agreement, as so amended, the “ Credit Agreement ”). Capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Credit Agreement.

(2) The Borrower, the Lenders and the Administrative Agent have agreed to further amend the Credit Agreement as hereinafter set forth.

SECTION 1. Amendments to Credit Agreement . The Credit Agreement is, effective as of the date hereof and subject to the satisfaction of the conditions precedent set forth in Section 3, hereby amended as follows:

(a) The definition of “ Applicable Margin ” in Section 1.01 is hereby amended by replacing the grid included in such definition with the following:

 

Rating Level (S&P/Moody’s)

   Applicable Margin
for Base Rate Advances
     Applicable Margin
for Eurodollar Rate
Advances
and Applicable Fee
Rate for Letters of
Credit
     Applicable
Percentage
 

A / A2 or higher

     0.0 bps         85.0 bps         17.0 bps   

A- / A3

     0.0 bps         100.0 bps         20.0 bps   

BBB+ / Baal

     20.0 bps         120.0 bps         24.0 bps   

BBB / Baa2

     45.0 bps         145.0 bps         29.0 bps   

BBB- / Baa3

     75.0 bps         175.0 bps         35.0 bps   

lower than BBB- / lower than Baa3, or unrated by both agencies

     125.0 bps         225.0 bps         45.0 bps   

(b) The definition of “ Interest Period ” in Section 1.01 is amended (i) by deleting therefrom the phrase “one week, two weeks” and substituting therefor the phrase “one week” in each place such phrase appears and (ii) by deleting the phrase “nine or twelve months” and substituting therefor the phrase “two weeks, nine or twelve months” in each place such phrase appears.

 

2


(c) The definition of “ Termination Date ” in Section 1.01 is amended in full to read as follows:

Termination Date ” means June 30, 2018, or, if extended pursuant to Section 8.11, the Extended Termination Date or, in any case, if earlier, the date of termination in whole of the Commitments pursuant to Section 2.06 or 6.01.

(d) Schedule I is amended in full to read as set forth on Schedule A to this Amendment.

SECTION 2. Waiver; Assignment . The requirements of Section 2.17(b) and Section 8.11 of the Credit Agreement are, effective as of the date hereof and subject to the satisfaction of the conditions precedent set forth in Section 3, hereby waived to the extent that such Sections require prior notice or execution and delivery of an assignment agreement to effect an assignment by any Lender that does not agree to extend its Commitment as set forth in this Amendment. Accordingly, after giving effect to this Amendment, only those Lenders listed on Schedule A to this Amendment shall have any Commitment or be considered Lenders under the Credit Agreement, in such amounts as set forth on Schedule A.

Each Lender whose Revolving Credit Commitment is reduced by giving effect to this Amendment (each, an “ Assignor ”): (a) represents and warrants that (i) it is the legal and beneficial owner of the relevant Assigned Interest (as defined below), (ii) such Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Amendment and to consummate the transactions contemplated hereby, and (iv) it is not a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.

Each Lender whose Revolving Credit Commitment is increased (or created) by giving effect to this Amendment (each, an “ Assignee ”): (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Amendment and to consummate the transactions contemplated hereby and becomes a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 8.07(b)(iii), (v) and (vi) of the Credit Agreement (subject to such consents, if any, as may be required under Section 8.07(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of its Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by its Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire its Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 5.01(h) thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Amendment and to purchase its Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Amendment and to assume its Assigned Interest and (vii) attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, if any, duly completed and executed by such Assignee;

 

3


and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent, any Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.

Assigned Interest ” means (i) all of the respective Assignors’ rights and obligations in their respective capacities as Lenders under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the Revolving Credit Commitments of the respective Assignors to the extent being assigned under this Agreement and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the respective Assignors (in their respective capacities as Lenders) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above.

SECTION 3. Conditions of Effectiveness . This Amendment shall become effective as of the date first above written when, and only when, (a) the Administrative Agent shall have received counterparts of this Amendment executed by the Borrower and all of the Lenders listed on Schedule A hereto and the consent attached hereto executed by the Guarantor, (b) the Borrower shall have paid to the Administrative Agent, for the benefit of the Lenders, all fees then due and payable and (c) and the Administrative Agent shall have additionally received all of the following documents, each such document (unless otherwise specified) dated the date of receipt thereof by the Administrative Agent (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent:

(a) Certified copies of the resolutions of the board of directors (or persons performing similar functions) of the Borrower approving transactions of the type contemplated by this Amendment.

(b) An opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP, special New York counsel to the Borrower, in substantially the form of Exhibit D-2 to the Credit Agreement or otherwise in a form reasonably satisfactory to the Administrative Agent.

(c) A certificate signed by a duly authorized officer of the Borrower stating that:

(i) The representations and warranties contained in Section 4 are correct in all material respects, except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct, on and as of the date of such certificate as though made on and as of such date; and

(ii) No event has occurred and is continuing that constitutes a Default.

SECTION 4. Representations and Warranties of the Borrower The Borrower represents and warrants as follows:

(a) The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.

 

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(b) The execution, delivery and performance by the Borrower of this Amendment, the Credit Agreement and the other Loan Documents and the consummation of the transactions contemplated hereby and thereby are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the Borrower’s charter or by-laws or (ii) law or any contractual restriction binding on or affecting the Borrower.

(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery or performance by the Borrower of this Amendment or the Credit Agreement.

(d) This Amendment has been duly executed and delivered by the Borrower. This Amendment and the Credit Agreement are the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with its terms, except to the extent that such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally from time to time in effect and may be subject to the discretion of courts with respect to the granting of equitable remedies and to the power of courts to stay proceedings for the execution of judgments.

(e) There is no action, suit, litigation or proceeding affecting the Borrower or any of its Subsidiaries, including any Environmental Action, pending or, to the best of the Borrower’s knowledge after reasonable investigation, overtly threatened, before any court, governmental agency or arbitrator that (i) is reasonably likely to be determined adversely, and if determined adversely, would have a Material Adverse Effect or (ii) purports to affect adversely the legality, validity or enforceability of this Amendment, the Credit Agreement or the consummation of the transactions contemplated hereby and thereby.

(f) Since December 31, 2012, there has been no Material Adverse Change.

SECTION 5. Reference to and Effect on the Loan Documents . (a) On and after the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, and each reference in each of the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof’ or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement, as amended by this Amendment.

(b) The Credit Agreement and each of the other Loan Documents as specifically amended by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed.

(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.

 

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SECTION 6. Execution in Counterparts . This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by telecopier or other electronic means shall be effective as delivery of a manually executed counterpart of this Amendment.

SECTION 7. Governing Law . This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.

 

ALENCO INC.
By:   /s/ Sherri A. Brillon
 

 

 

Sherri A. Brillon

President

By:   /s/ Gerald T. Ince
 

 

 

Gerald T. Ince

Treasurer

 

6


Agreed as of the date first above written:
CITIBANK, N.A., as Administrative Agent, Swing Line Bank, Issuing Bank and a Lender
By   /s/ Andrew Sidford
 

 

  Name:   Andrew Sidford
  Title:   Vice President
BANK OF AMERICA, N.A.
By   /s/ James K.G. Campbell
 

 

  Name:   James K.G. Campbell
  Title:   Director
THE ROYAL BANK OF SCOTLAND PLC, CANADA BRANCH
By   /s/ Shehan J. De Silva
 

 

  Name:   Shehan J. De Silva
  Title:   Vice President
By   /s/ David Wright
 

 

  Name:   David Wright
  Title:  

Director

Head of Client Management Canada

BARCLAYS BANK PLC
By   /s/ Alicia Borys
 

 

  Name:   Alicia Borys
  Title:   Vice President
JPMORGAN CHASE BANK, N.A.
By   /s/ Debra Hrelja
 

 

  Name:   Debra Hrelja
  Title:   Vice President
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
By   /s/ Paul V. Farrell
 

 

  Name:   Paul V. Farrell
  Title:   Director

 

7


DEUTSCHE BANK AG NEW YORK BRANCH
By   /s/ Ming K. Chu
 

 

  Name:   Ming K. Chu
  Title:   Vice President
By   /s/ Virginia Cosenza
 

 

  Name:   Virginia Cosenza
  Title:   Vice President
DNB BANK ASA, GRAND CAYMAN BRANCH
By   /s/ Barbara Gronquist
 

 

  Name:   BARBARA GRONQUIST
  Title:   SENIOR VICE PRESIDENT
By   /s/ Cathleen Buckley
 

 

  Name:   Cathleen Buckley
  Title:   Senior Vice President
GOLDMAN SACHS LENDING PARTNERS LLC
By   /s/ Mark Walton
 

 

  Name:   Mark Walton
  Title:   Authorized Signatory
SUMITOMO MITSUI BANKING CORPORATION
By   /s/ James D. Weinstein
 

 

  Name:   James D. Weinstein
  Title:   Managing Director
WELLS FARGO BANK, NATIONAL ASSOCIATION
By   /s/ Peter Carini
 

 

  Name:   Peter Carini
  Title:   Vice President
EXPORT DEVELOPMENT CANADA
By   /s/ Matthew Devine
 

 

  Name:   MATTHEW DEVINE
  Title:   FINANCING MANAGER
By   /s/ Joanne Tognarelli
 

 

  Name:   JOANNE TOGNARELLI
  Title:   SENIOR FINANCING MANAGER

 

8


BNP PARIBAS
By   /s/ Claudia Zarate
 

 

  Name:   Claudia Zarate
  Title:   Director
By   /s/ Nicholas Anberree
 

 

  Name:   Nicolas Anberree
  Title:   Vice President
THE ROYAL BANK OF SCOTLAND N.V., (CANADA) BRANCH
By   /s/ Shehan J. De Silva
 

 

  Name:   Shehan J. De Silva
  Title:   Vice President
By   /s/ David Wright
 

 

  Name:   David Wright
  Title:  

Director

Head of Client Management Canada

 

9


SCHEDULE A to Amendment

SCHEDULE I

COMMITMENTS

 

Name of Lender

   Revolving Credit
Commitment
     Letter of Credit
Sub-Commitment
     Swing Line
Sub-Commitment
 

Bank of America, N.A.

   $ 90,000,000.00         

The Royal Bank of Scotland plc, Canada Branch

   $ 90,000,000.00         

Citibank, N.A.

   $ 90,000,000.00       $ 25,000,000.00       $ 25,000,000.00   

Barclays Bank PLC

   $ 90,000,000.00         

JPMorgan Chase Bank, N.A.

   $ 90,000,000.00         

The Bank of Tokyo-Mitsubishi UFJ, Ltd.

   $ 70,000,000.00         

Deutsche Bank AG, New York Branch

   $ 70,000,000.00         

DNB Bank ASA, Grand Cayman Branch

   $ 70,000,000.00         

Goldman Sachs Lending Partners LLC

   $ 70,000,000.00         

Sumitomo Mitsui Banking Corporation

   $ 70,000,000.00         

Wells Fargo Bank, National Association

   $ 70,000,000.00         

Export Development Canada

   $ 60,000,000.00         

BNP Paribas

   $ 70,000,000.00         
  

 

 

    

 

 

    

 

 

 

Total of Commitments:

   $ 1,000,000,000.00       $ 25,000,000.00       $ 25,000,000.00   
  

 

 

    

 

 

    

 

 

 

 

10


CONSENT

Dated as of June 28, 2013

The undersigned, ENCANA CORPORATION, a corporation, as Guarantor under the Second Amended and Restated Guaranty dated as of October 20, 2011 (the “ Guaranty ”) in favor of the Administrative Agent, the Lenders and the Issuing Banks referred to in the Second Amended and Restated Credit Agreement dated as of October 20, 2011, and a letter amendment thereto dated as of June 15, 2012 (such Credit Agreement, as so amended, the “ Credit Agreement ”) hereby consents to Amendment No. 2 to the Credit Agreement dated as of June 28, 2013, among Alenco Inc., as Borrower, and the Lenders and Administrative Agent, as defined therein (the “ Amendment ”), and hereby confirms and agrees that notwithstanding the effectiveness of such Amendment, the Guaranty is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that, on and after the effectiveness of such Amendment, each reference in the Guaranty to the “Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement, as amended by such Amendment.

 

ENCANA CORPORATION
By:   /s/ Sherri A. Brillon
 

 

  Sherri A. Brillon
  Executive Vice-President & Chief Financial Officer
By:   /s/ Jeffrey G. Paulson
 

 

  Jeffrey G. Paulson
  Corporate Secretary

 

11

Exhibit 10.5

US$1,500,000,000

AMENDMENT NO. 3 TO THE

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

Dated as of July 16, 2015

Among

ALENCO INC.,

as Borrower,

CITIGROUP GLOBAL MARKETS INC.

MIZUHO BANK, LTD.

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.

BARCLAYS BANK PLC

JPMORGAN SECURITIES LLC

as Lead Arrangers,

CITIBANK, N.A.,

as Administrative Agent,

CITIBANK, N.A.,

as Swing Line Bank,

MIZUHO BANK, LTD.

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.

as Syndication Agents,

BARCLAYS BANK PLC

JPMORGAN CHASE BANK, N.A.

as Documentation Agents,

and

THE LENDERS PARTY HERETO,


AMENDMENT NO. 3 TO THE

CREDIT AGREEMENT

Dated as of July 16, 2015

AMENDMENT NO. 3 TO THE CREDIT AGREEMENT (this “ Amendment ”) among ALENCO INC., a Delaware corporation (the “ Borrower ”), the banks, financial institutions and other institutional lenders that are parties to the Credit Agreement referred to below (collectively, the “ Lenders ”) and CITIBANK, N.A., as administrative agent (the “ Administrative Agent ”) for the Lenders.

PRELIMINARY STATEMENTS:

(1)      The Borrower, the Lenders and the Administrative Agent have entered into a Second Amended and Restated Credit Agreement dated as of October 20, 2011, a letter amendment thereto dated as of June 15, 2012 and that certain Amendment No. 2 to the Credit Agreement, dated as of June 28, 2013 (such Credit Agreement, as so amended, the “ Credit Agreement ”). Capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Credit Agreement.

(2)      The Borrower, the Lenders and the Administrative Agent have agreed to further amend the Credit Agreement as hereinafter set forth.

AMENDMENTS:

Section 1.       Amendments to Credit Agreement . The Credit Agreement is, effective as of the date hereof and subject to the satisfaction of the conditions precedent set forth in Section 3, hereby amended as follows:

(a)      The following new definitions are added to Section 1.01 in appropriate alphabetical order:

  “ Anti-Corruption Laws ” means all laws, rules, and regulations of Sanctions Authorities that apply to the Borrower and its Subsidiaries from time to time concerning or relating to bribery of government officials or public corruption.

  “ OFAC ” means the Office of Foreign Assets Control of the United States Treasury Department.

  “ Patriot Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act of 2001).

  “ Reference Bank Rate ” means the arithmetic mean of the rates (rounded to four decimal places) supplied to the Administrative Agent at its request by no fewer than two Reference Banks as of 11:00 a.m., London time, two Business Days prior to the first day of such Interest Period as the rate at which the


relevant Reference Bank could borrow funds in the London interbank market in Dollars and for the relevant period, were it to do so by asking for and then accepting interbank offers in reasonable market size in that currency and for that period.

Sanctioned Country ” means, at any time, a country, region or territory which is the subject or target of any Sanctions.

Sanctioned Person ” means, at any time, any Person listed in any Sanctions-specific list of designated Persons maintained by OFAC, the United States Department of State, the United Nations Security Council or the Government of Canada.

Sanctions ” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by a Sanctions Authority that are applicable to the Borrower or its Subsidiaries; provided that, with respect to economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the United Nations Security Council, to the extent such sanctions or trade embargoes are not inconsistent with Applicable Law in Canada.

Sanctions Authority ” means any of: (i) the federal government of Canada; (ii) the federal government of the United States of America; (iii) the United Nations Security Council; or (iv) the respective governmental institutions, departments and agencies of any of the foregoing, including OFAC and the United States Department of State; and “ Sanctions Authorities ” means all of the foregoing Sanctions Authorities, collectively.

(b)      The definition of “ Applicable Margin ” in Section 1.01 is hereby amended by replacing the grid included in such definition with the following:

 

Rating Level

(S&P/Moody’s)

 

 

Applicable Margin

for Base Rate

Advances

 

 

Applicable Margin for
Eurodollar Rate

Advances and

Applicable Fee Rate

for Letters of Credit

 

 

Applicable

Percentage

 

A / A2 or higher

  0.0 bps   80.0 bps   16.0 bps

A- / A3

  0.0 bps   100.0 bps   20.0 bps

BBB+ / Baal

  20.0 bps   120.0 bps   24.0 bps

BBB / Baa2

  45.0 bps   145.0 bps   29.0 bps

BBB- / Baa3

  70.0 bps   170.0 bps   34.0 bps
lower than BBB- /lower than Baa3, or unrated by both agencies   125.0 bps   225.0 bps   45.0 bps

 

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(c)      Clause (c) of the definition of “ Base Rate ” in Section 1.01 is amended in full to read as follows:

(c)      the ICE Benchmark Administration Interest Settlement Rate applicable to Dollars for a period of one month (“ One Month LIBOR ”) plus 1.00% (for the avoidance of doubt, the One Month LIBOR for any day shall be based on the rate appearing on Reuters LIBOR01 Page (or other commercially available source providing such quotations as designated by the Administrative Agent from time to time) at approximately 11:00 a.m. London time on such day); provided that, if the One Month LIBOR shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.

(d)      The definition of “ LIBO Rate ” in Section 1.01 is amended in full to read as follows:

“LIBO Rate” means, for any Interest Period, (i) the rate of interest per annum, calculated on the basis of a year of 360 days, appearing on Reuters Screen LIBOR01 Page (or any successor page) as the London interbank offered rate for deposits in the applicable currency at approximately 11:00 A.M. (London time) two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period, or (ii) if the rate in clause (i) above does not appear on such page or service or if such page or service is not available, the rate of interest per annum determined by the Administrative Agent to be the offered rate for deposits in the applicable currency with a term equivalent to such Interest Period on such other page or other service which displays an average of the London interbank offered rate administered by the ICE Benchmark Administration Limited (or any other Person that takes over the administration of such rate), or (iii) if the rates in clauses (i) and (ii) are not available, the Reference Bank Rate for such Interest Period; provided that, if the LIBO Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.

(e)      The definition of “Reference Banks” in Section 1.01 is amended in full to read as follows:

Reference Banks ” means Mizuho Bank, Ltd., The Bank of Tokyo-Mitsubishi UFJ, Ltd., Citibank, JPMorgan and up to two other Lenders as shall be agreed from time to time by the Borrower and each of the Lenders.

(f)      The definition of “ Termination Date ” in Section 1.01 is amended in full to read as follows:

Termination Date ” means July 16, 2020, or, if extended pursuant to Section 8.11, the Extended Termination Date or, in any case, if earlier, the date of termination in whole of the Commitments pursuant to Section 2.06 or 6.01 .

(g)      Section 2.09(b) is hereby amended in full to read as follows:

 

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If, with respect to any Eurodollar Rate Advances, (x) the Required Lenders notify the Administrative Agent that the Eurodollar Rate for any Interest Period for such Advances will not adequately reflect the cost to such Required Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such Interest Period or (y) the Administrative Agent is unable to determine the LIBO Rate under clauses (i), (ii) or (iii) of the definition thereof, the Administrative Agent shall forthwith so notify the Borrower and the Lenders, whereupon (i) each Eurodollar Rate Advance will automatically, on the final day of the then existing Interest Period therefor, Convert into a Base Rate Advance, and (ii) the obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended until the Administrative Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist.

(h)      Section 2.19 is hereby amended by deleting the amount “$400,000,000” in clause (a)(ii) thereof and replacing it with “$500,000,000”.

(i)      Section 4.01(k) is to be amended in full to read as follows:

(i)      None of the Borrower or any of its Material Subsidiaries that is a Material Guarantor Subsidiary is a Sanctioned Person or permanently located, organized or ordinarily resident in a Sanctioned Country;

(ii)      No part of the proceeds of an Advance will be knowingly (as determined at the date of such Advance) used (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person known by the Borrower to be in violation of any Anti–Corruption Laws, except to the extent that any such violation would not have a Material Adverse Effect or adversely affect the Administrative Agent or any Lender in any material respect, (B) for the purpose of funding, financing or facilitating any activities or, business or transaction of or with any Person known to the Borrower to be a Sanctioned Person, or in any country known to the Borrower to be a Sanctioned Country, or (C) in any manner that would result in the violation of any Sanctions applicable to the Borrower or any of its Material Subsidiaries that is a Material Guarantor Subsidiary, except to the extent that any such violation would not have a Material Adverse Effect or adversely affect the Administrative Agent or any Lender in any material respect; and

(iii)     Where used in this Section 4.01(k), references to “knowingly” or “known” means the actual knowledge of the President or Treasurer of the Borrower.

(j) Section 5.01 is hereby amended by adding to the end thereof a new clause (j) that reads as follows:

(j) Anti-Corruption Laws and Sanctions . The Borrower shall maintain in effect and enforce procedures to ensure compliance by the Borrower with its

 

4


representation and warranty in Section 4.01(k) in respect of any requested Advance.

(k)       Section 8.08 is amended by adding to the end thereof a new paragraph to read as follows:

The Administrative Agent agrees (i) to keep confidential the rates to be used in the calculation of the Reference Bank Rate supplied by each Reference Bank pursuant to or in connection with this Agreement and (ii) that it has developed procedures to ensure that such rates are not submitted by the Reference Banks to, or shared with, any individual who is formally designated as being involved in the ICE Benchmark Administration LIBOR submission process; provided that such rates may be shared with the Borrower and any of its employees, directors, agents, attorneys, accountants and other professional advisors or those of any of its affiliates that have a commercially reasonable business need to know such rates, and, if such rates are so shared, the Borrower agrees to keep such information confidential (and, if shared with any third parties described above, such third parties shall also agree to keep such information confidential).

(l)       Schedule I is amended in full to read as set forth on Schedule A to this Amendment.

Section 2. Waiver; Assignment . The requirements of Section 2.17(b) and Section 8.11 of the Credit Agreement are, effective as of the date hereof and subject to the satisfaction of the conditions precedent set forth in Section 3 below, hereby waived to the extent that such Sections require prior notice or execution and delivery of an assignment agreement to effect an assignment by any Lender that does not agree to extend its Commitment as set forth in this Amendment. Accordingly, after giving effect to this Amendment, only those Lenders listed on Schedule A to this Amendment shall have any Commitment or be considered Lenders under the Credit Agreement, in such amounts as set forth on Schedule A .

For an agreed consideration, each Assignor (as defined below) hereby irrevocably sells and assigns to the Increasing Lenders (as defined below), and each Increasing Lender hereby irrevocably purchases and assumes from each Assignor, subject to and in accordance with this Amendment and the Credit Agreement, as of July 16, 2015 the Assigned Interests (as defined below). Each such sale and assignment is without recourse to any Assignor and, except as expressly provided in this Amendment, without representation or warranty by any Assignor.

Each Lender whose Revolving Credit Commitment is reduced or terminated by giving effect to this Amendment (each, an “ Assignor ”): (a) represents and warrants that (i) it is the legal and beneficial owner of the relevant Assigned Interest (as defined below), (ii) such Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Amendment and to consummate the transactions

 

5


contemplated hereby, and (iv) it is not a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.

Each Lender whose Revolving Credit Commitment is increased (or created) by giving effect to this Amendment, whether by assignment of an Assigned Interest or otherwise (each, an “ Increasing Lender ”): (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Amendment and to consummate the transactions contemplated hereby and becomes a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 8.07(b)(iii) , (v)  and (vi)  of the Credit Agreement (subject to such consents, if any, as may be required under Section  8.07(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by its Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire its Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 5.01(h) thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Amendment and to purchase its Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Amendment and to assume its Assigned Interest and (vii) attached hereto (or otherwise delivered to the Administrative Agent prior to the date hereof) is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, if any, duly completed and executed by such Increasing Lender; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent, any Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.

Assigned Interest ” means (i) all of the respective Assignors’ rights and obligations in their respective capacities as Lenders under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the Revolving Credit Commitments of the respective Assignors to the extent being assigned under this Agreement and (ii) to the extent permitted to be assigned under Applicable Law, all claims, suits, causes of action and any other right of the respective Assignors (in

 

6


their respective capacities as Lenders) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above.

Section 3.       Conditions of Effectiveness . This Amendment shall become effective as of the date first above written when, and only when, (a) the Administrative Agent shall have received counterparts of this Amendment executed by the Borrower and all of the Lenders listed on Schedule A hereto and the consent attached hereto executed by the Guarantor, (b) the Borrower shall have paid to the Administrative Agent, for the benefit of the Lenders, all fees then due and payable and (c) and the Administrative Agent shall have additionally received all of the following documents, each such document (unless otherwise specified) dated the date of receipt thereof by the Administrative Agent (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent:

(a)      Certified copies of the resolutions of the board of directors (or persons performing similar functions) of the Borrower approving transactions of the type contemplated by this Amendment.

(b)      An opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP, special New York counsel to the Borrower, in substantially the form of Exhibit D-2 to the Credit Agreement or otherwise in a form reasonably satisfactory to the Administrative Agent.

(c)      A certificate signed by a duly authorized officer of the Borrower stating that:

(i)      the representations and warranties contained in Section 4 are correct in all material respects, except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct, on and as of the date of such certificate as though made on and as of such date; and

(ii)      no event has occurred and is continuing that constitutes a Default.

Section 4.       Representations and Warranties of the Borrower . The Borrower represents and warrants as follows:

(a)      The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.

(b)      The execution, delivery and performance by the Borrower of this Amendment, the Credit Agreement and the other Loan Documents and the consummation of the transactions contemplated hereby and thereby are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the Borrower’s charter or by-laws or (ii) law or any contractual restriction binding on or affecting the Borrower.

 

7


(c)      No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery or performance by the Borrower of this Amendment or the Credit Agreement.

(d)      This Amendment has been duly executed and delivered by the Borrower. This Amendment and the Credit Agreement are the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with its terms, except to the extent that such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally from time to time in effect and may be subject to the discretion of courts with respect to the granting of equitable remedies and to the power of courts to stay proceedings for the execution of judgments.

(e)      There is no action, suit, litigation or proceeding affecting the Borrower or any of its Subsidiaries, including any Environmental Action, pending or, to the best of the Borrower’s knowledge after reasonable investigation, overtly threatened, before any court, governmental agency or arbitrator that (i) is reasonably likely to be determined adversely, and if determined adversely, would have a Material Adverse Effect or (ii) purports to affect adversely the legality, validity or enforceability of this Amendment, the Credit Agreement or the consummation of the transactions contemplated hereby and thereby.

(f)      Since December 31, 2014, there has been no Material Adverse Change.

Section 5.       Reference to and Effect on the Loan Documents .

(a)      On and after the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, and each reference in each of the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement, as amended by this Amendment. This Amendment shall constitute a Loan Document.

(b)      The Credit Agreement and each of the other Loan Documents as specifically amended by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed.

(c)      The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.

 

8


Section 6.       Execution in Counterparts . This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by telecopier or other electronic means shall be effective as delivery of an originally executed counterpart of this Amendment.

Section 7.       Governing Law . This Amendment shall be governed by, and construed in accordance with, the law of the State of New York.

 

9


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.

 

ALENCO INC.  
By:  

/s/ Sherri A. Brillon

 
  Sherri A. Brillon  
  President  
By:  

/s/ Corey D. Code

 
 

Corey D. Code

Treasurer

 


Agreed as of the date first above written:
CITIBANK, N.A., as Administrative Agent, Swing Line Bank, Issuing Bank and a Lender
By:    

/s/ Maureen Maroney

  Name: Maureen Maroney
  Title: Vice President
BARCLAYS BANK PLC
By:  

/s/ Ronnie Glenn

  Name: Ronnie Glenn
  Title: Vice President
JPMORGAN CHASE BANK, N.A.
By:  

/s/ Debra Hreljia

  Name: Debra Hreljia
  Title: Vice President
MIZUHO BANK, LTD.
By:  

/s/ Brad C. Crilly

  Name: Brad C. Crilly
  Title: Senior Vice-President
By:  

 

  Name:
  Title:
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
By:  

/s/ Kevin Sparks

  Name: Kevin Sparks
  Title: Vice President


CREDIT SUISSE AG, TORONTO BRANCH
By:  

/s/ Chris Gage                  /s/ Nicholas Lam

Name: Chris Gage                   Nicholas Lam
Title: Authorized Signatory     Assistant Vice President
CREDIT AGRICOLE CORPORATE & INVESTMENT BANK
By:  

/s/ Juliette Cohen

  Name: Juliette Cohen
  Title: Managing Director
By:  

/s/ Lucie Campos Caresmel

  Name: Lucie Campos Caresmel
  Title: DIRECTOR
BANK OF AMERICA, N.A.
By:  

/s/ James K.G. Campbell

  Name: James K.G. Campbell
  Title: DIRECTOR
GOLDMAN SACHS LENDING PARTNERS LLC
By:  

/s/ Rebecca Kratz

  Name: Rebecca Kratz
  Title: Authorized Signatory
SUMITOMO MITSUI BANKING CORPORATION
By:  

/s/ James D. Weinstein

  Name: James D. Weinstein
  Title: Managing Director
WELLS FARGO BANK, NATIONAL ASSOCIATION
By:  

/s/ Jeffrey Cobb

  Name: Jeffrey Cobb
  Title: Vice President


EXPORT DEVELOPMENT CANADA
By:   

/s/ Christopher Wilson

  Name: Christopher Wilson
  Title: Financing Manager
By:  

/s/ Luisa Rebolledo

  Name: Luisa Rebolledo
  Title: Senior Financing Manager
BANK OF MONTREAL
By:  

/s/ Yacouba Kane

  Name: Yacouba Kane
  Title: Vice President
CANADIAN IMPERIAL BANK OF COMMERCE
By:  

/s/ Joelle Chatwin

  Name: Joelle Chatwin
  Title: Executive Director
By:  

/s/ Randy Geislinger

  Name: Randy Geislinger
  Title: Executive Director
ROYAL BANK OF CANADA
By:  

/s/ Sonia G. Tibbatts

  Name: Sonia G. Tibbatts
  Title: Authorized Signatory
THE BANK OF NOVA SCOTIA
By:  

/s/ Albert Kwan

  Name: Albert Kwan
  Title: Director
By:  

/s/ Michael Linder

  Name: Michael Linder
  Title: Director


TORONTO-DOMINION (TEXAS) LLC
By:  

/s/ Savo Bozic

  Name: Savo Bozic
  Title: Authorized Signatory


Agreed, and executed solely in its capacity as an Assignor under Section 2 of the foregoing Amendment:

BNP PARIBAS
By:   

/s/ Angela B. Arnold

  Name: Angela B. Arnold
  Title: Managing Director
By:  

LOGO

 

  Name: [Illegible]
  Title: [Illegible]
DEUTSCHE BANK AG NEW YORK BRANCH
By:  

/s/ Ming K. Chu

  Name: Ming K. Chu
  Title: Vice President
By:  

/s/ Virginia Cosenza

  Name: Virginia Cosenza
  Title: Vice President
DNB BANK ASA, GRAND CAYMAN BRANCH
By:  

/s/ Cathleen Buckley

  Name: Cathleen Buckley
  Title: Senior Vice President
By:  

/s/ Anders Platou

  Name: Anders Platou
  Title: Senior Vice President


SCHEDULE A to Amendment

SCHEDULE I

COMMITMENTS

 

                                                                                                  

Name of Lender

 

  

 

Revolving Credit    
Commitment    

 

    

Letter of Credit    
Sub-Commitment    

 

    

Swing Line
Sub-Commitment

 

 

Citibank, N.A.

 

    

 

$170,000,000

 

 

 

    

 

$25,000,000

 

 

 

    

 

$25,000,000

 

 

 

Barclays Bank PLC

 

    

 

$170,000,000

 

 

 

                 

JPMorgan Chase Bank, N.A.

 

    

 

$170,000,000

 

 

 

                 

Mizuho Bank, Ltd.

 

    

 

$170,000,000

 

 

 

                 

The Bank of Tokyo-Mitsubishi UFJ, Ltd.

 

    

 

$170,000,000

 

 

 

                 

Credit Suisse AG, Toronto Branch

 

    

 

$120,000,000

 

 

 

                 

Credit Agricole Corporate & Investment Bank

 

    

 

$115,000,000

 

 

 

                 

Bank of America, N.A.

 

    

 

$70,000,000

 

 

 

                 

Goldman Sachs Lending Partners LLC

 

    

 

$70,000,000

 

 

 

                 

Sumitomo Mitsui Banking Corporation

 

    

 

$70,000,000

 

 

 

                 

Wells Fargo Bank, National Association

 

    

 

$70,000,000

 

 

 

                 

Export Development Canada

 

    

 

$60,000,000

 

 

 

                 

Bank of Montreal, Chicago Branch

 

    

 

$15,000,000

 

 

 

                 

Canadian Imperial Bank of Commerce

 

    

 

$15,000,000

 

 

 

                 

Royal Bank of Canada

 

    

 

$15,000,000

 

 

 

                 

The Bank of Nova Scotia

 

    

 

$15,000,000

 

 

 

                 

Toronto-Dominion (Texas) LLC

 

    

 

$15,000,000

 

 

 

                 

Total of Commitments:

 

    

 

$1,500,000,000

 

 

 

    

 

$25,000,000

 

 

 

    

 

$25,000,000

 

 

 


CONSENT

Dated as of July 16, 2015

The undersigned, ENCANA CORPORATION, a corporation, as Guarantor under the Second Amended and Restated Guaranty dated as of October 20, 2011 (the “ Guaranty ”) in favor of the Administrative Agent, the Lenders and the Issuing Banks referred to in the Second Amended and Restated Credit Agreement dated as of October 20, 2011, a letter amendment thereto dated as of June 15, 2012 and that certain Amendment No. 2 to the Credit Agreement, dated as of June 28, 2013 (such Credit Agreement, as so amended, the “ Credit Agreement ”) hereby consents to Amendment No. 3 to the Credit Agreement dated as of July 16, 2015, among Alenco Inc., as Borrower, and the Lenders and Administrative Agent, as defined therein (the “ Amendment ”), and hereby confirms and agrees that notwithstanding the effectiveness of such Amendment, the Guaranty is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that, on and after the effectiveness of such Amendment, each reference in the Guaranty to the “Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement, as amended by such Amendment.

 

ENCANA CORPORATION  
By:  

/s/ Sherri A. Brillon

 
  Sherri A. Brillon  
  Executive Vice-President & Chief Financial Officer  
By:  

/s/ Corey D. Code

 
 

Corey D. Code

Vice-President, Strategy & Treasurer

 

Exhibit 10.6

 

LOGO

ENCANA CORPORATION

EMPLOYEE STOCK OPTION PLAN

Reflective with amendments made as of April 27, 2005,

as of April 25, 2007, as of April 22, 2008, as of October 22, 2008,

as of November 30, 2009, as of July 20, 2010, as of February 24, 2015 and as of February 22, 2016.


TABLE OF CONTENTS

 

Section

       Page  
1.  

PURPOSES OF THE PLAN

     1   
2.  

ADMINISTRATION

     1   
3.  

SHARES

     1   
4.  

GRANT OF OPTIONS AND STOCK APPRECIATION RIGHTS

     1   
5.  

GRANT PRICE

     2   
6.  

OPTION PERIOD

     2   
7.  

EXERCISE OF OPTIONS AND STOCK APPRECIATION RIGHTS

     3   
8.  

NON-ASSIGNABILITY

     3   
9.  

EFFECTS OF ALTERATION OF SHARE CAPITAL

     3   
10.  

EFFECTIVE DATE OF THE PLAN

     3   
11.  

AMENDMENT OR TERMINATION OF PLAN

     3   
12.  

ENCANA REPLACEMENT STOCK OPTIONS

     4   
13.  

FORMER CANADIAN PACIFIC LIMITED OPTIONHOLDERS

     4   
14.  

BLACKOUT PERIOD

     5   


ENCANA CORPORATION

EMPLOYEE STOCK OPTION PLAN

(Reflective with amendments made as of April 27, 2005,

as of April 25, 2007, as of April 22, 2008, as of October 22, 2008,

as of November 30, 2009, as of July 20, 2010, as of February 24, 2015,

and as of February 22, 2016)

 

1. PURPOSES OF THE PLAN

The principal purposes of the Employee Stock Option Plan (the “Plan”) of Encana Corporation (the “Company”) and its subsidiaries are:

 

(a) to promote a proprietary interest in the Company among employees;

 

(b) to attract and retain qualified employees the Company requires;

 

(c) to provide a long-term incentive element in overall compensation of employees; and

 

(d) to promote an alignment of interests between employees and shareholders of the Company.

 

2. ADMINISTRATION

The Plan shall be administered by such committee of the Board of Directors of the Company as is designated from time to time by the Board (the “Committee”). The Committee shall have full and complete authority to interpret the Plan and to prescribe such rules and regulations and make such other determinations as it deems necessary or desirable for the administration of the Plan.

 

3. SHARES

The shares that may be issued pursuant to the exercise of options under the Plan are common shares of the Company (“Shares”). The maximum number of Shares that may be issued pursuant to the exercise of options granted under the Plan is 107,800,000.

 

4. GRANT OF OPTIONS AND TANDEM STOCK APPRECIATION RIGHTS

The Committee may from time to time designate officers and other employees who, in the opinion of the Committee, are eligible employees of the Company or its subsidiaries to whom options to purchase Shares shall be granted. The Committee shall determine the effective date of any such grant (“Grant Date”), the number or grant date expected value of Shares to be optioned to such employees and all other terms, conditions and limitations of the grant of the options, subject always to the provisions of this Plan and any corresponding option grant agreements (“Options”). Where the Committee determines to grant any Options on a date which is within a trading blackout period imposed by the Company under the Company’s Securities Trading and Insider Reporting Policy (as amended, supplemented or replaced by the Company from time to time) (a “Blackout Period”) or where, for any reason: (i) a grant of Options occurs on a day that is within a Blackout Period; or (ii) the Market Value of the grant of Options would be calculated using a trading day that is within a Blackout Period, then the Grant Date shall be no earlier than the sixth trading day immediately following the end of such Blackout Period, or such later date as may be necessary pursuant to Section 5 hereof, to permit the Market Value to be determined based on trading days which occur immediately following the end of any such Blackout Period.


Encana Corporation    Page 2
Employee Stock Option Plan   
(With amendments as of February 22, 2016)   

 

At the discretion of the Committee, an Option to purchase Shares may have associated with it a tandem stock appreciation right (“TSAR”) in respect of each Share covered by such Option. Each TSAR shall entitle the optionee to surrender to the Company, unexercised, the right to exercise their Option to purchase a specified number of Shares and to receive in exchange from the Company, cash or Shares (at the Company’s choice), subject to Section 12 hereof, in an amount equal to the excess of the closing price of the Shares on the Toronto Stock Exchange (“TSX”) on the last trading day preceding the date of surrender of the Option and contemporaneous exercise of the TSAR, over the Grant Price (as defined below) for the Shares (“Appreciated Value”). Each TSAR shall be subject to the same terms and conditions as the related Option.

An Option granted under the Plan will not be exercisable by an optionee until such Option has been evidenced by a written option grant agreement duly executed and delivered by the Company and by such optionee confirming optionee’s acceptance of the terms and conditions of such grant. An optionee may hold more than one Option at any time.

Without limiting the generality of the foregoing, all grants of Options shall be subject to the following terms and conditions:

 

(a) the aggregate number of Shares issuable, at any time, to or for the benefit of insiders pursuant to Options, when combined with the number of Shares issuable to insiders pursuant to all other security based compensation arrangements of the Company, shall not exceed 10% of the issued and outstanding Shares (on a non-diluted basis); and

 

(b) there may not be issued to insiders, within any one-year period, a number of Shares that, when combined with the number of Shares issued to insiders pursuant to all other security based compensation arrangements of the Company, would exceed 10% of the issued and outstanding Shares (on a non-diluted basis).

For the purpose of this Plan, the term “insider” has the meaning ascribed thereto in the TSX Company Manual.

 

5. GRANT PRICE

The grant price for each Share that may be purchased through the exercise of an Option (the “Grant Price”) shall be fixed by the Committee for each Option effective as of the Grant Date, but shall not be less than the Market Value of the Shares. For this purpose, “Market Value” means the volume-weighted average (rounded to two decimal places) of the trading price of one Share on the TSX during the five (5) trading days immediately preceding the Grant Date or, if at least one Share did not trade on a particular day during the immediately preceding five (5) trading day period, the volume-weighted average (rounded to two decimal places) of the trading price for one Share on the TSX during the immediately preceding five (5) days on which at least one Share was traded.

 

6. OPTION PERIOD

Each Option (unless terminated sooner in accordance with the terms, conditions and limitations of the Option determined by the Committee including, without limitation, this Plan and any corresponding Option grant agreement) granted to eligible employees on or after February 24,


Encana Corporation    Page 3
Employee Stock Option Plan   
(With amendments as of February 22, 2016)   

 

2015 shall be exercisable during such period not exceeding seven (7) years from the date the Option was granted, as the Committee may determine (the “Option Period”). Each Option (unless terminated sooner in accordance with the terms, conditions, and limitations of the Option determined by the Committee including, without limitation, this Plan and any corresponding Option grant agreement) granted to eligible employees prior to February 24, 2015 shall have an Option Period not exceeding five (5) years from the date the Option was granted. The Committee may, with the consent of the Optionee and the prior consent of the TSX, cancel the unexercised balance of any Option. All rights under the Option unexercised at the expiry or termination of the respective Option Period shall be forfeited. All Shares reserved for Options that are forfeited or cancelled shall be available for subsequent grant of Options.

 

7. EXERCISE OF OPTIONS AND STOCK APPRECIATION RIGHTS

An Option or its associated TSAR may be exercised from time to time by delivery to the Company at its principal office in Calgary, Alberta or to such person designated by the Company, of a written notice of exercise specifying the number of Shares with respect to which the Option or TSAR is being exercised and, if the Option is being exercised, accompanied by payment in full of the purchase price of the Shares then being purchased. If a TSAR associated with the Option is being exercised, the Company will then issue cash or Shares (at the Company’s option) for the Appreciated Value to the optionee. No person shall have any of the rights of a shareholder in respect of any Shares subject to an Option or TSAR until such Shares have been paid for in full and issued.

 

8. NON-ASSIGNABILITY

No Option or any right conferred by an Option shall be assignable, negotiable or otherwise transferable other than by will or the laws of descent and distribution. Options or rights conferred by an Option shall be exercisable during the optionee’s lifetime only by such optionee or, after death or incapacitation, by the optionee’s guardian or legal representative.

 

9. EFFECTS OF ALTERATION OF SHARE CAPITAL

In the event of any change in the outstanding common shares of the Company by reason of any stock dividend, split, recapitalization, merger, consolidation, combination or exchange of shares or other similar corporate change, equitable adjustments shall be made in the maximum number and kind of Shares issuable under the Plan and in the maximum number and kind of and the Grant Price for Shares issuable under outstanding Options. Such adjustments shall be made by the Committee and shall be conclusive and binding for all purposes of the Plan.

 

10. EFFECTIVE DATE OF THE PLAN

The Plan shall have effect from and after October 1, 2001 (“Effective Date”).

 

11. AMENDMENT OR TERMINATION OF PLAN

The Board of Directors of the Company may, at any time and from time to time, amend, suspend, discontinue or terminate the Plan in whole or in part; provided, however, no such amendment, suspension, discontinuance or termination may, without the consent of the optionee, adversely alter or impair the rights under any Option previously granted to an optionee


Encana Corporation    Page 4
Employee Stock Option Plan   
(With amendments as of February 22, 2016)   

 

under the Plan. Any amendment to be made to the Plan or an Option under the Plan is subject to the prior approval of the TSX and the shareholders of the Company where required by the rules of the TSX. Without limiting the generality of the foregoing, the Board shall have the power and authority to approve amendments relating to the Plan or a specific Option without further approval of the shareholders of the Company, to the extent that such amendments relate to:

 

(a) extending or accelerating the terms of vesting applicable to any Option or group of Options;

 

(b) altering the terms and conditions of vesting applicable to any Option or group of Options;

 

(c) changing the termination provisions of the Plan or any Option, provided that the change does not provide for an extension beyond the original expiry date of such Option, as provided for in Section 6 hereof;

 

(d) accelerating the expiry date in respect of an Option;

 

(e) determining the adjustment provisions pursuant to Section 9 hereof;

 

(f) amending the definitions contained within the Plan and other amendments of a “housekeeping” nature; and

 

(g) amending or modifying the mechanics of exercise of an Option or TSAR.

Approval by the shareholders of the Company will be required for amendments that relate to:

 

  (i) any increase in the number of shares reserved for issuance under the Plan, including an increase to a fixed maximum number of Common Shares, or a change from a fixed maximum number of Common Shares to a fixed maximum percentage;

 

  (ii) any reduction in Grant Price or cancellation and reissue of Options;

 

  (iii) any extension of the term of an Option beyond the original expiry date, except as permitted under Section 12 hereof;

 

  (iv) any amendment to Section 12 that increases the length of the Blackout Extension Period;

 

  (v) the inclusion of non-employee directors, on a discretionary basis, as eligible participants under the Plan;

 

  (vi) any allowance for the transferability or assignability of Options other than for estate settlement purposes as outlined in Section 8; and

 

  (vii) amendments required to be approved by shareholders under applicable law (including, without limitation, the rules, regulations and policies of the TSX).

In the event of any conflict between subsections (a) to (g) and (i) to (vii) above, the latter shall prevail to the extent of any conflict.


Encana Corporation    Page 5
Employee Stock Option Plan   
(With amendments as of February 22, 2016)   

 

No amendment, suspension, discontinuance or termination of the Plan may contravene the requirements of the TSX or any securities commission or regulatory body to which the Plan or the Company is now or may hereafter be subject.

 

12. BLACKOUT PERIOD

Notwithstanding Section 6, if the Option Period of an Option expires during, or within ten (10) business days following a Blackout Period, then the Option Period of such Option shall be extended to the date which is ten (10) business days after the last day of the Blackout Period (the “Blackout Extension Period”), after which time such Option shall expire and terminate.

* * *

Exhibit 10.7

ENCANA CORPORATION

EMPLOYEE STOCK OPTION PLAN

[EXECUTIVE] 20 STOCK OPTION GRANT AGREEMENT

 

Participant:    ###PARTICIPANT_NAME###
Grant Name:    ###GRANT_NAME###
Grant Date:    ###GRANT_DATE###
Expiry Date:    ###EXPIRY_DATE###, subject to the terms and conditions contained herein
Grant Price:    CDN###GRANT_PRICE###
Total Options with TSARs:    ###TOTAL_AWARDS###

THIS OPTION AND TANDEM STOCK APPRECIATION RIGHTS AGREEMENT including Schedules “A” and “B” hereto (collectively, this “ Agreement ”) is made between Encana Corporation (the “ Corporation ”) and the Participant listed above (the “ Participant ”), an eligible employee of the Corporation or one of its Related Corporations.

WHEREAS the Corporation has established an Employee Stock Option Plan (the “ Plan ”) for employees of the Corporation and its Related Corporations (collectively, the “ Affiliated Entities ” or, individually, an “ Affiliated Entity ”);

AND WHEREAS the Board of Directors of the Corporation (the “ Board ”) has approved the grant to the Participant under the Plan of an option to purchase the number of Shares set out above (collectively, the “ Options ” and individually, an “ Option ”), upon and subject to the terms and conditions of the Plan and this Agreement;

AND WHEREAS the Plan was amended effective February 23, 2015 (the “ Effective Date ”) and such amendments, as required, approved by shareholders at the Corporation’s May 12, 2015 Annual Meeting of Shareholders, to provide for (unless otherwise specified by the Committee) a new Option Period not to exceed seven (7) years from the Date of Grant of the Option (the “ Extended Term ”), in respect of each Option granted on or following the Effective Date;

AND WHEREAS with the Extended Term does not apply to or amend the Term or Expiry Date of an Option granted to the Participant prior to the Effective Date, the Option Period of which shall remain a period not exceeding five (5) years from Date of Grant of such Option;

NOW THEREFORE in consideration of other good and valuable consideration and the sum of one dollar ($1.00) now paid to the Corporation (the receipt whereof by the Corporation is hereby acknowledged) it is agreed by and between the parties hereto as follows:

 

1. DEFINITIONS

In this Agreement, capitalized terms shall have the meanings set forth in Schedule “A” hereto unless specified.

 

2. GRANT OF OPTIONS AND TANDEM STOCK APPRECIATION RIGHTS

Subject to the terms and conditions of the Plan and this Agreement, the Corporation hereby grants the Options to the Participant. Each Option granted, once vested hereunder, shall entitle the Participant to acquire one Share, subject to and in accordance with the terms and conditions of the Plan and this

 

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Agreement. Each Option granted hereunder shall have associated with it a Tandem Stock Appreciation Right (“ TSAR ”). Except as otherwise provided in the Plan or this Agreement, each associated TSAR shall be subject to the same terms and conditions as the Option to which it relates.

 

3. EVIDENCE OF GRANT AND ACKNOWLEDGEMENT

This Agreement shall evidence the grant by the Corporation to the Participant of the Options effective as of the Grant Date.

The Participant acknowledges that the Extended Term applies only to an Option or Options granted on or following the Effective Date and shall not apply to an Option or Options granted prior to such date.

The Participant further acknowledges nothing in the Plan or this Agreement shall be construed to require the Corporation to grant to the Participant an additional option or options beyond the Options granted hereunder. The grant of an additional option or options to the Participant by the Corporation shall, in each case, constitute a new and separate agreement between the Participant and the Corporation in respect of same.

 

4. CLASSIFICATION OF OPTIONS

The Options granted to the Participant hereunder are classified as “Time-Based Options” and shall hereinafter be referred to as “ Time-Based Options ”.

 

5. VESTING OF TIME-BASED OPTIONS

 

(a) Subject to Section 5(b) and Sections 6 to 11 hereof, Time-Based Options shall become Vested Options as follows:

 

  (i) 30 percent on the first Anniversary Date;

 

  (ii) an additional 30 percent on the second Anniversary Date; and

 

  (iii) an additional 40 percent on the third Anniversary Date.

 

(b) The number of Time-Based Options that become Vested Options under Section 5(a) shall be determined by rounding the result up to the nearest whole number of Time-Based Options, if necessary, to an aggregate maximum of the total number of Time-Based Options granted under this Agreement. No fractional Time-Based Options shall become Vested Options. No cash or other compensation shall be paid to the Participant at any time in lieu thereof any fractional Time-Based Options.

 

(c) Subject to Sections 3, 6 to 11, the Participant shall be entitled to exercise or surrender all or any number of the Vested Options, in accordance with Section 13, during the period from the Vesting Date of such Vested Option pursuant to Section 5(a) to the Expiry Date, or such earlier termination date as provided herein.

 

(d)

As an alternative to the exercise of a Vested Option, the Participant may surrender any Vested Option as to an associated TSAR in accordance with Section 13 hereof. Upon surrendering to the Corporation the Vested Options to purchase a specified number of Shares, the Participant shall receive a cash payment equal to the Appreciated Value multiplied by the number of Vested Options surrendered, less required applicable statutory and other withholdings. Thereafter the number of Vested Options so surrendered with respect to such specified number

 

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  of Shares will be cancelled and terminated by the Corporation and the Participant shall have no further right, title or interest in such surrendered Vested Options or the underlying Shares.

 

6. TERMINATION OF EMPLOYMENT

 

(a) Upon a Termination of Employment, the Participant shall be entitled to exercise or surrender any Vested Options during the Termination Exercise Period, but only to the extent such Vested Options have become Vested Options pursuant to Section 5(a) on or prior to the Date Employment Ceases.

 

(b) Notwithstanding Section 5(a), Time-Based Options which do not become Vested Options on or prior to the Date Employment Ceases shall not thereafter become Vested Options.

 

7. DEATH OR RETIREMENT OF PARTICIPANT

 

(a) In the event the Participant ceases to be an employee of the Corporation or an Affiliated Entity by reason of the Participant’s death or Retirement on a date prior to the date he or she reaches age 60:

 

  (i) the Participant shall be entitled to exercise or surrender any Vested Options during the Death or Retirement Exercise Period, but only to the extent they have become Vested Options pursuant to Section 5(a) on or prior to the date of such death or Date of Retirement, as applicable; and

 

  (ii) notwithstanding Section 5(a), Time-Based Options which do not become Vested Options on or prior to the date of such death or Date of Retirement, as applicable, shall not thereafter become Vested Options.

 

(b) In the event the Participant ceases to be an employee of the Corporation or an Affiliated Entity by reason of his or her death or Retirement on a date that occurs on or after the date he or she reaches the age 60, but before age 65, his or her Time-Based Options shall continue to become Vested Options in accordance with the provisions of this Agreement including, without limitation, Section 5(a), and the Participant shall be entitled to exercise or surrender any such Vested Options until the Expiry Date.

 

(c) In the event the Participant ceases to be an employee of the Corporation or an Affiliated Entity by reason of his or her death or Retirement on a date that occurs on or after the date he or she reaches age 65, the Participant shall be entitled, during the period extending from the date of such death or Date of Retirement, as applicable, to the Expiry Date, to exercise or surrender, in full or in part, any unexercised Time-Based Option (irrespective of whether such Time-Based Option has become a Vested Option in accordance with the provisions of this Agreement including, without limitation Section 5(a)).

 

8. DISABILITY OF PARTICIPANT

In the event of the Participant’s Short-Term Disability or Long-Term Disability, Time-Based Options shall continue to be and become Vested Options in accordance with the provisions of this Agreement including, without limitation, Section 5(a) and the Participant shall be entitled to exercise or surrender any Vested Options during the period of such Short-Term Disability or Long-Term Disability and thereafter, unless there occurs a Termination of Employment during such period, in which case the provisions of Section 6 shall apply, or unless the Participant’s death or Retirement occurs during such period, in which case the provisions of Section 7 shall apply.

 

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9. LEAVES OF ABSENCE AND FAMILY LEAVE

 

(a) In the event the Participant is on a Paid Leave of Absence or on Family Leave, Time-Based Options shall continue to be and become Vested Options in accordance with the provisions of this Agreement including, without limitation, Section 5(a), and the Participant shall be entitled to exercise or surrender any Vested Options during the period of such Paid Leave of Absence or Family Leave and thereafter, unless there occurs a Termination of Employment during such period, in which case the provisions of Section 6 shall apply, or unless the Participant’s death or Retirement occurs during such period, in which case the provisions of Section 7 shall apply.

 

(b) In the event the Participant is on an Unpaid Leave of Absence:

 

  (i) Time-Based Options shall continue to be and become Vested Options in accordance with the provisions of Section 5(a) during the period commencing on the Date of Unpaid Leave of Absence and ending on the 31 st calendar day following the Date of Unpaid Leave of Absence, unless there occurs a Termination of Employment during such period, in which case the provisions of Section 6 shall apply, or unless the Participant’s death or Retirement occurs during such period, in which case the provisions of Section 7 shall apply;

 

  (ii) notwithstanding Section 5(a), Time-Based Options which do not become Vested Options on or prior to the 31 st calendar day following the Date of Unpaid Leave of Absence shall not become Vested Options during the balance of the Participant’s Unpaid Leave of Absence, unless the Participant’s death or Retirement occurs during such period, in which case the provisions of Section 7 shall apply;

 

  (iii) notwithstanding Section 5(a), Time-Based Options which do not become Vested Options on or prior to the 31 st calendar day following the Date of Unpaid Leave of Absence shall become Vested Options on the Participant’s Return to Service Date, but only to the extent that such Time-Based Options would have become Vested Options pursuant to Section 5(a) on or prior to the Return to Service Date if the period of Unpaid Leave of Absence had not occurred and provided that the Return to Service Date occurs prior to the Expiry Date;

 

  (iv) in the event that the Participant’s Return to Service Date occurs prior to the Expiry Date, any Time-Based Options which did not become Vested Options on or prior to the 31 st calendar day following the Date of Unpaid Leave of Absence or pursuant to Section 9(b)(iii) shall become Vested Options solely in accordance with the provisions of Section 5(a); and

 

  (v) from the Date of Unpaid Leave of Absence until the Expiry Date, the Participant shall be entitled to exercise or surrender any Vested Options which become Vested Options in accordance with the provisions hereof, unless there occurs a Termination of Employment during such period of Unpaid Leave of Absence, in which case the provisions of Section 6 shall apply, or unless the Participant’s death or Retirement occurs during such period, in which case the provisions of Section 7 shall apply.

 

10. FORFEITURE AND TERMINATION OF TIME-BASED OPTIONS

 

(a)

Unless previously forfeited in accordance with the provisions hereof, upon the occurrence of a Termination of Employment, Time-Based Options which have not become Vested Options on or prior to the Date Employment Ceases shall be forfeited by the Participant and shall terminate on

 

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  the Date Employment Ceases and, thereafter, the Participant will have no further right, title or interest in such Time-Based Options.

 

(b) Upon the occurrence of a Termination of Employment, Vested Options which are not exercised or surrendered by the end of the Termination Exercise Period shall be forfeited by the Participant and shall terminate on the last day of the Termination Exercise Period and, thereafter, the Participant will have no further right, title or interest in such Vested Options.

 

(c) Where the Participant ceases to be an employee of the Corporation or an Affiliated Entity by reason of the Participant’s death or Retirement on a date that is prior to the date that the Participant reaches age 60, unless previously forfeited in accordance with the provisions hereof, Time-Based Options which have not become Vested Options on or prior to the date of death or Date of Retirement, as applicable, shall be forfeited by the Participant and shall terminate on the date of death or Date of Retirement, as applicable, and, thereafter, the Participant will have no further right, title or interest in such Time-Based Options.

 

(d) Where the Participant ceases to be an employee of the Corporation or an Affiliated Entity by reason of the Participant’s death or Retirement on a date that is prior to the date that the Participant reaches age 60, Vested Options which are not exercised or surrendered by the end of the Death or Retirement Exercise Period shall be forfeited by the Participant and shall terminate on the last day of the Death or Retirement Exercise Period and, thereafter, the Participant will have no further right, title or interest in such Vested Options.

 

(e) On the Expiry Date, all Time-Based Options which have not been exercised or surrendered or otherwise terminated pursuant to the provisions hereof shall expire and be of no further force or effect whatsoever.

 

(f) After the occurrence of any of the events in Sections 10(a) – (e), this Agreement shall terminate and be of no further force or effect whatsoever with respect to those Time-Based Options which have been forfeited and terminated or have expired and the Participant shall have no cause of action nor make any claim against the Corporation or any Affiliated Entity for damages or for loss of opportunity arising from the forfeiture and termination or expiry of such Time-Based Options or the termination of this Agreement insofar as it relates to such Time-Based Options pursuant to this Section 10.

 

11. EARLY EXERCISE AND ACCELERATED VESTING

 

(a) Notwithstanding any other provision of this Agreement, but subject to Section 11(b), the Committee or the Board may pass a resolution which accelerates the vesting of a Time-Based Option and which permits the Participant to exercise or surrender in full or in part any unexercised Time-Based Option, whether or not the Time-Based Option has otherwise become a Vested Option, at such time or times and/or in such manner following the passing of such resolution as is specified in the resolution, which resolution may be passed for any reason which, in the sole opinion of the Committee or the Board, warrants altering the provisions pursuant to which a Time-Based Option vests or is exercisable or can be surrendered upon the occurrence of a Change in Control, including a Take-Over Bid which would, if successful, result in a Change in Control.

 

(b)    (i)    Notwithstanding any other provision of this Agreement but subject to Section 11(b)(ii), upon the occurrence of a Change in Control, the Participant shall be entitled, on the date of the Change in Control, to exercise or surrender in full or in part any unexercised Time-Based Option (irrespective of whether such Time-Based Option has become a Vested Option in accordance with Section 5(a)) until the Expiry Date.

 

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  (ii) If a “take-over bid” (within the meaning of applicable securities legislation) made by any person for the voting securities of the Corporation (a “ Take-over Bid ”) would, if successful, result in a Change in Control, then:

 

  (A) the Corporation will promptly notify the Participant of the Take-over Bid and the Participant’s rights under this Section 11(b);

 

  (B) vesting of all Time-Based Options that have not yet become Vested Options pursuant to Section 5(a) at the time a formal Take-over Bid offer has been made will be accelerated so as to be and become Vested Options (irrespective of whether such Time-Based Options have become Vested Options in accordance with Section 5(a) on the date the formal Take-over Bid offer is made;

 

  (C) the Participant shall be entitled to exercise, in full or in part, the Time-Based Options in the manner set out in this Agreement, with any necessary modifications (or such other manner as may be prescribed by the Committee or the Board including, but not limited to, a form of cashless exercise), during the period ending on the earlier of the expiration of the Take-over Bid and the Expiry Date, for the purpose of tendering the Shares acquired pursuant to the exercise of the Time-Based Options to the Take-over Bid;

 

  (D) the Participant shall be entitled to deal with the Time-Based Options in such other manner (in addition to the exercise set out in paragraph 11(b)(ii)(C)) as may be prescribed by the Committee or the Board, in its discretion; and

 

  (E) if the Shares acquired pursuant to the exercise of the Time-Based Options are not deposited by the Participant pursuant to the Take-over Bid or, if deposited, are subsequently withdrawn by the Participant or not all taken up and paid for by the offeror or if the offeror fails to take-up and pay for the Shares pursuant to the terms of the Take-over Bid or if the Take-over Bid fails to close for any other reason, then the Participant shall promptly return such Shares (or the portion that are not taken up and paid for) to the Corporation for cancellation. Such Shares shall be deemed not to have been issued and the related Time-Based Options shall be deemed not to have been exercised, and the Corporation shall refund to the Participant, if applicable, the aggregate Exercise Price for the Time-Based Options. In such event, Time-Based Options will become Vested Options solely in accordance with Section 5(a), and any other action by the Participant permitted in accordance with Section 11(b)(ii)(D) shall be deemed not to have occurred.

 

12. EFFECTS OF ALTERATION OF SHARE CAPITAL

In the event of any change in the Shares by reason of any stock dividend, split, recapitalization, merger, consolidation, combination or exchange of shares or other similar corporate change, equitable adjustments may be made in the number of Time-Based Options, the type of shares or securities subject to the Time-Based Options, the Exercise Price and the formula for determining the cash payable upon the surrender of Time-Based Options pursuant to associated TSARs. The Committee shall determine which adjustments shall be made in any such event in its sole discretion and its determination shall be conclusive and binding for all purposes of this Agreement; provided that such adjustments shall not result in any adverse Canadian or United States federal income tax consequences. Without limiting the generality of the foregoing, it is expressly intended that no Time-Based Option or TSAR shall become subject to Section 409A and no adjustment shall be made to the Exercise Price, the formula for determining the cash payable upon the surrender of Time-Based

 

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Options pursuant to associated TSARs, or any other term or condition of this Agreement if to do so would cause the Time-Based Option or TSAR to become deferred compensation subject to Section 409A.

 

13. METHOD OF EXERCISE OR SURRENDER OF TIME-BASED OPTIONS

Any Vested Option may be exercised or surrendered by the Participant or, after death or incapacitation, by the Participant’s duly appointed legal guardian or legal personal representative, in a manner prescribed by the Corporation from time to time as published on the Corporation’s internal employee website or otherwise communicated in writing to the Participant from time to time.

 

14. OBLIGATIONS OF THE PARTICIPANT

Nothing contained in this Agreement or done pursuant to this Agreement shall oblige the Participant to purchase and pay for any Shares except those Shares underlying the Time-Based Options that the Participant has exercised in the manner provided in this Agreement.

The Participant agrees and acknowledges (and shall be conclusively deemed to have so acknowledged and agreed by participating in the Plan) that the Participant will, at all times, act in strict compliance with Applicable Law and all Corporation Policies applicable to the Participant in connection with the Plan. Such Applicable Law and Corporation Policies shall include, without limitation, those governing “insiders” or “reporting issuers” as those terms are construed for the purposes of applicable securities laws, regulations, and rules.

 

15. SUBJECT TO APPLICABLE LAW

The grant of any Time-Based Option hereunder and the obligation to make any payment (including the delivery of Shares) in respect of any Time-Based Option is subject to compliance with Applicable Law including, without limitation, Sections 26 and 27 hereof. As a condition of participating in the Plan, each Participant agrees to comply with all such Applicable Law and agrees to furnish to the Corporation all information and undertakings as may be required to permit compliance with Applicable Law.

 

16. WITHHOLDINGS

The Corporation or any Affiliated Entity may withhold or cause to be withheld from any amount payable to a Participant, either under the Plan or this Agreement, or otherwise, such amount as may be necessary so as to ensure that the Corporation or any Affiliated Entity, as applicable, will be able to comply with the applicable provisions of any federal, provincial, state or local law relating to the withholding of tax or other required deductions, including on the amount, if any, includable in the income of a Participant.

The Participant acknowledges that all taxes which may be payable by the Participant as a result of the granting, exercise, or surrender of the Time-Based Options are the Participant’s sole responsibility and that it is the Participant’s duty and responsibility to comply with all provisions of the law in relation to the reporting of the acquisition or exercise or surrender of the Time-Based Options and the trading of any Shares issued pursuant to this Agreement.

 

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17. NO AGREEMENT TO EMPLOY

Nothing contained in this Agreement or done pursuant to this Agreement shall constitute or be construed to constitute or to be evidence of an agreement or understanding, express or implied, on the part of the Corporation or an Affiliated Entity to retain the Participant in the Participant’s employment for any specific period of time or in any specific capacity or position.

 

18. NON-QUALIFIED STOCK OPTIONS

The Time-Based Options granted to the Participant hereunder are non-qualified stock options for United States tax purposes.

 

19. NO REPRESENTATION AS TO PRICE

The Corporation makes no representation nor gives any warranty as to the price of the Shares and shall not be held liable for any fluctuation in the price of the Shares either before or after the exercise of any right conferred under this Agreement.

 

20. NON-ASSIGNABILITY

The Time-Based Option and the rights conferred hereby are not assignable, negotiable or otherwise transferable by the Participant other than by will or the laws of descent and distribution. The Time-Based Option is exercisable only during the Participant’s lifetime and only by the Participant, except in the event of the Participant’s death or incapacity, in which case the Time-Based Option may be exercised or surrendered by the Participant’s duly appointed legal guardian or legal personal representative as provided herein.

 

21. SUBJECT TO CLAWBACK POLICY

You acknowledge and agree that all Options granted hereunder (and the grant thereof), including any payment in respect thereof, are expressly subject to the terms and conditions of the Corporation’s “Incentive Compensation Clawback Policy”, attached hereto as Schedule “B”, as same may be amended by the Corporation from time to time.

 

22. SUBJECT TO PLAN

The provisions of this Agreement shall be interpreted so as to be expressly subject to the provisions of the Plan. The Participant acknowledges that the Committee or the Board has full and complete authority to interpret the Plan and to prescribe such rules and regulations and make such other determinations as it deems necessary or desirable for the administration of the Plan in its sole discretion and that any such rules, regulations or determinations shall be final and binding on the parties to this Agreement.

 

23. AMENDMENT AND TERMINATION

Subject to Applicable Law and to Section 11 of the Plan, this Agreement and the Plan may be amended or terminated at any time by the Board in whole or in part.

 

24. TIME OF ESSENCE

Time shall be of the essence of this Agreement.

 

25. NOTICES

Any notice to be given by the Participant hereunder shall be sent to the Corporation at:

Encana Corporation

500 Centre Street SE

P.O. Box 2850

Calgary, Alberta T2P 2S5

 

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Fax: (403) 645-3400

Attention : Vice-President, Human Resources

and any notice from the Corporation to the Participant shall be sent to the Participant at the Participant’s office or residence address last known to the Corporation. Either party may change the address to which notice may be given by mailing the same, postage prepaid, or delivering the same to the Corporation or to the Participant, as the case may be, in accordance with the foregoing. Any such notice if delivered shall be deemed to have been given or made on the date on which it was delivered or if mailed shall be deemed to have been given or made on the third business day following the date on which it was mailed. In the event of a general postal disruption, notice shall be delivered.

The Participant hereby consents to the exchange of information and documents between the Participant and the Corporation electronically over the Internet or by e-mail (if to the Participant at the e-mail address most recently provided by the Participant to the Corporation) and it is hereby agreed and acknowledged that any such information and documents sent or received in electronic form shall be the equivalent of original written paper documents.

 

26. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws in force in the Province of Alberta and the federal laws of Canada as applicable herein. In the event of a dispute, the Participant agrees to submit to the jurisdiction of the Alberta courts.

 

27. COMPLIANCE WITH SECTION 409A

Notwithstanding any provision of the Plan or this Agreement to the contrary, where applicable, it is intended that the provisions of the Plan and this Agreement comply with Section 409A, and all provisions of the Plan shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. Each US Participant is solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on or for the account of such US Participant in connection with the Plan or any other Plan maintained by the Corporation or an Affiliated Entity (including any taxes and penalties under Section 409A), and neither the Corporation nor any Affiliated Entity shall have any obligation to indemnify or otherwise hold such US Participant (or any beneficiary) harmless from any or all of such taxes or penalties. In addition, should any provision of the Plan or this Agreement be subject to Section 409A, the Date Employment Ceases and the Date of Retirement shall be determined to mean a “separation from service” as defined in Section 409A whenever necessary to ensure compliance therewith for any payment or settlement of a benefit conferred under the Plan or this Agreement that is subject to Section 409A, and, for such purposes, shall be determined based upon a reduction in the bona fide level of services performed to a level equal to twenty percent (20%) or less of the average level of services performed by the Participant during the immediately preceding 36-month period. Any distribution or settlement of a benefit conferred under the Plan or this Agreement following the Date Employment Ceases or the Date of Retirement that would be subject to Section 409A as a distribution following a separation from service of a “specified employee” as defined under Section 409A, shall occur no earlier than the expiration of the six-month period following such Date Employment Ceases or Date of Retirement.

 

28. EXECUTION BY THE CORPORATION

This Agreement may be executed by application of the facsimile or authorized electronic signature of the Executive Vice-President, Corporate Services of the Corporation (or his or her written designate) and such signature shall be as valid and effective as if such officer signed this Agreement in person.

 

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29. ACCEPTANCE BY PARTICIPANT

The Participant shall confirm acceptance of the terms and conditions of this Agreement by electronically selecting and clicking on the button beside the words “I Accept” from the options provided below. By indicating such acceptance, the Participant agrees to be legally bound by the terms and conditions of this Agreement, and hereby agrees that such acceptance shall be as valid and effective as of the Date of Grant as if the Participant signed this Agreement in person on that date. In the event the Participant does not accept the terms and conditions of this Agreement because an error exists in the Option information provided at the outset of this Agreement, the Participant must electronically select and click on the button beside the words “I Do Not Accept” from the options provided below, in which case the parties shall take such steps as may be necessary to correct any such error.

IN WITNESS WHEREOF this Agreement has been executed effective as of the Grant Date.

ENCANA CORPORATION

Mike Williams

Executive Vice-President, Corporate Services

 

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SCHEDULE “A”

DEFINITIONS

In this Agreement, the following terms shall have the meanings respectively set forth below:

 

(a) Agreement ” means this Option and Tandem Stock Appreciation Rights Agreement between the Corporation and the Participant;

 

(b) Anniversary Date ” means, in respect of the Time-Based Options, each anniversary of the Date of Grant;

 

(c) Applicable Law ” means any applicable provision of law, domestic or foreign, including, without limitation, applicable securities legislation, together with all regulations, rules, policy statements, rulings, notices, orders or other instruments promulgated thereunder, and any rules of the Toronto Stock Exchange;

 

(d) Appreciated Value ” means, in respect of each TSAR associated with an Time-Based Option, an amount equal to the excess of the closing price of a Share on the Toronto Stock Exchange on the last Trading Day preceding the date of the surrender of the Time-Based Option, over the Exercise Price;

 

(e) Change in Control ” means, for purposes of this Agreement, the date any of the following occurs:

 

  (i) any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity, or any persons acting jointly or in concert with the foregoing, is, or becomes, the beneficial owner, directly or indirectly, of securities of the Corporation representing more than 30% of the combined voting power of the Corporation’s then outstanding securities entitled to vote in the election of the directors of the Corporation;

 

  (ii) the Corporation shall have disposed of: (A) all or substantially all of its assets, such that shareholder approval was required or should have been required to be obtained under the Canada Business Corporations Act , or (B) assets in any 12 month period representing 50% or more of the total assets of the Corporation, determined as of the date of the audited financial statements of the Corporation then most recently published;

 

  (iii) pursuant to a single election or appointment or a series of elections or appointments over any period from and after the date of this Agreement (A) those individuals who at the date of this Agreement constituted the Board, together with (B) any new or additional director or directors whose nomination for election by the Corporation’s shareholders, or whose appointment to the Board by the Board, has been approved by at least 75% of the votes cast by all of the directors then still in office, who either were directors at the date of this Agreement or whose appointment or nomination for election was previously so approved, cease for any reason to constitute a majority of the Board; or

 

  (iv) the Board, by resolution duly adopted by the affirmative vote of a simple majority of the votes cast by the Board, determines that, for purposes of this Agreement, a Change in Control of the Corporation has occurred.

 

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Securities beneficially owned or controlled or directed by an employee plan or related trust sponsored or maintained by the Corporation or any of its Affiliated Entities shall not be taken into account in determining whether the threshold percentage in Section (h)(i) is exceeded.

For the purposes of this Section (h):

 

  (i) the term “acting jointly or in concert” shall be interpreted in accordance with Section 159 of the Securities Act (Alberta), as amended; and

 

  (ii) the term “beneficial ownership” shall be interpreted in accordance with Sections 5 and 6 of the Securities Act (Alberta) and “beneficial owner” shall have a corresponding meaning, except that for purposes of this Agreement, options and convertible securities granted by the Corporation to employees, officers or directors shall not be included in determining beneficial ownership or beneficial owner.

For greater certainty, and except as specifically provided in Sections (h)(ii) and (h)(iv), the sale, disposition or other divestiture of an Affiliated Entity, in whole or in part, shall not constitute a Change in Control for the purposes of this Agreement.

 

(f) Close of Business ” means the close of trading on the Toronto Stock Exchange on any Trading Day;

 

(g) Committee ” means the Human Resources and Compensation Committee of the Board, or such other committee of the board, as constituted from time to time, which may be designated by the Board to, inter alia , interpret, administer and implement the Plan and this Agreement, and any reference in this Agreement to action by the Committee means action by or under the authority of the Committee or, if no Committee has been designated, by the Board;

 

(h) Corporation Policies ” means, at a particular time, the policies and practices of the Corporation (or, if applicable, the Affiliated Entity which employs the Participant or which employed the Retired Participant), as published on the Corporation’s internal employee website or otherwise communicated in writing to the employees (or, where necessary, to a Retired Participant) of the Corporation and/or its Affiliated Entities;

 

(i) Date Employment Ceases ” means:

 

  (i) in the case of voluntary termination of employment initiated by the Participant, the last date the Participant is, for the purposes of receiving his or her regular salary, on the payroll of the Corporation or an Affiliated Entity;

 

  (ii) in the case of involuntary termination of the Participant’s employment by the Corporation or an Affiliated Entity for cause (as determined by the Corporation or the Affiliated Entity, as applicable), the date written notification of dismissal from employment is delivered to the Participant;

 

  (iii) in the case of involuntary termination of the Participant’s employment by the Corporation or an Affiliated Entity other than for cause (as determined by the Corporation or the Affiliated Entity, as applicable), the date identified in the written notification of termination of employment delivered to the Participant as the “Termination Date” or “Departure Date” and, where both dates are so referred to, the earlier thereof, and, where such date is not identified in the written notification, the date written notification of dismissal from employment is delivered to the Participant;

 

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  (iv) in the case where the Participant is employed by an Affiliated Entity and for any reason including, without limitation, by reason of sale, disposition or other divestiture thereof, in whole or in part, such employer ceases to be an Affiliated Entity of the Corporation, the effective date (in the case of a sale, disposition or other divestiture, the closing date of such transaction or series of transactions, as determined by the Corporation) upon which the Participant’s employer ceases to be an Affiliated Entity;

but, for greater certainty, shall not include any notice period which arises or may be deemed to arise upon the termination of employment of the Participant, and shall not include the date the Participant ceases to be an employee of the Corporation or an Affiliated Entity upon the Participant’s death or Retirement, or the date the Participant commences Short-Term Disability, Long-Term Disability, a Paid Leave of Absence, an Unpaid Leave of Absence, or Family Leave;

 

(j) Date of Grant ” means the date upon which the Corporation grants the Time-Based Options to the Participant, and as evidenced by this Agreement, which term is sometimes referenced as “Grant Date”;

 

(k) Date of Retirement ” means the last day the Participant is, for the purposes of receiving his or her regular salary, on the payroll of the Corporation or an Affiliated Entity immediately prior to commencing Retirement;

 

(l) Death or Retirement Exercise Period ” means the period of time extending from the date of the Participant’s death or Date of Retirement, as applicable, to the earlier of: (i) the date that is six months following the date of the Participant’s death or Date of Retirement, as applicable; and (ii) the Expiry Date. Should the Death or Retirement Exercise Period terminate on a date other than a Trading Day, the Death or Retirement Exercise Period shall terminate on the Close of Business on the last Trading Day prior to that date;

 

(m) Exercise Price ” means the price payable per Share on the exercise by the Participant of a Time-Based Option determined on the basis of the Grant Price;

 

(n) Expiry Date ” means the Close of Business on the seventh Anniversary Date, subject to any Blackout Extension Period (as defined and set forth in the Plan). Should the Expiry Date fall on a date other than a Trading Day, the Expiry Date shall be the Close of Business on the last Trading Day prior to that date;

 

(o) Family Leave ” means a period during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered to be on family leave, and does not provide employment services to the Corporation or an Affiliated Entity;

 

(p) Long-Term Disability ” means any period of time during which the Participant receives, or is determined to be entitled to receive, disability benefits under the Corporation’s or an Affiliated Entity’s long-term disability plans;

 

(q) Paid Leave of Absence ” means a period during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered to be on a leave of absence and continues to receive his or her normal salary, but does not provide employment services to the Corporation or an Affiliated Entity;

 

(r) Related Corporation ” means a corporation that is related, within the meaning of the Income Tax Act (Canada), to the Corporation;

 

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(s) Retired Participant ” means a Participant who ceases to be an employee of the Corporation or an Affiliated Entity by reason of his or her Retirement;

 

(t) Retirement ” means the early or normal retirement of the Participant from employment with the Corporation or an Affiliated Entity in accordance with the Corporation Policies;

 

(u) Return to Service Date ” means the date, following an Unpaid Leave of Absence, that the Participant recommences the provision of employment services to the Corporation or an Affiliated Entity, in full or in part;

 

(v) Section 409A ” means section 409A of the United States Internal Revenue Code of 1986, as amended, and any applicable United States Treasury Regulations and other binding regulatory guidance promulgated thereunder;

 

(w) Share ” means a common share in the capital of the Corporation as is traded on the Toronto Stock Exchange;

 

(x) Short-Term Disability ” means any period of time during which the Participant receives disability benefits under the Corporation’s or an Affiliated Entity’s short-term disability plans;

 

(y) Take-over Bid ” has the meaning assigned by Section 11(d)(ii);

 

(z) Termination Exercise Period ” means the period of time extending from the Date Employment Ceases to the earlier of: (i) the Close of Business on the 60 th Trading Day after the Date Employment Ceases; and (ii) the Expiry Date;

 

(aa) Termination of Employment ” means an event by which the Participant ceases to be an employee of the Corporation or an Affiliated Entity but, for greater certainty, shall not include an event whereby the Participant ceases to be an employee of the Corporation or an Affiliated Entity upon the Participant’s death or Retirement or where the Participant commences Short-Term Disability, Long-Term Disability, a Paid Leave of Absence, an Unpaid Leave of Absence, or Family Leave;

 

(bb) Time-Based Options ” has the meaning assigned by Section 4(a);

 

(cc) Trading Day ” means a day on which the Toronto Stock Exchange is open for trading;

 

(dd) TSAR ” means a tandem stock appreciation right which is associated with a Time-Based Option and which entitles the Participant to surrender a Vested Option in accordance with Section 5(d), subject to the terms and conditions hereof;

 

(ee) Unpaid Leave of Absence ” means a period of time during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered to be on a leave of absence and does not continue to receive his or her salary or provide employment services to the Corporation or an Affiliated Entity which, for the purposes of this Agreement, shall be deemed to commence on the “ Date of Unpaid Leave of Absence ”, being the first day of the Participant’s Unpaid Leave of Absence, as communicated in writing to the Participant by the Corporation or an Affiliated Entity in accordance with the Corporation Policies;

 

(ff) US Participant ” means, where applicable, a Participant whose income in respect of services performed for the Corporation or an Affiliated Entity is subject to Section 409A;

 

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(gg) Vested Option ” means a Time-Based Option which has vested and can be exercised by the Participant to purchase a Share or, alternatively, can be surrendered by the Participant in accordance with Section 5 (d), subject to the terms and conditions hereof; and

 

(hh) Vesting Date ” means the date on which a Time-Based Option becomes a Vested Option in accordance with the provisions of this Agreement including, without limitation, Section 5(a) hereof.

 

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Schedule “B”

INCENTIVE COMPENSATION CLAWBACK POLICY:

By resolution of the Board of Directors (the “ Board ”) of Encana Corporation (“ Encana ” or the “Corporation”), this Policy is effective as of this 22nd day of October, 2012 (the “ Effective Date ”).

This Policy applies to the President & Chief Executive Officer and each Executive-Vice President of the Corporation and any individual who serves in either such capacity on or following the Effective Date (collectively, the “ Executive ”). References in this Policy to the “Corporation” include, where applicable, any affiliate thereof.

This Policy has been adopted to enhance the Corporation’s alignment with best practices in respect of risk management and executive compensation and shall be, at all times, subject to and interpreted in a manner consistent with applicable laws or the rules of any applicable stock exchange (collectively, “ Applicable Rule s”).

This Policy applies to “Incentive-Based Compensation” which, for the purposes of this Policy, means compensation relating to the achievement of performance goals or similar conditions, excluding salary, perquisites, benefits and pension entitlements, and including, without limitation, any award or grant of or any eligibility, entitlement or gain of, an Executive under the Corporation’s: (i) High Performance Results Plan, or any other short-term incentive plan; or (ii) Long-Term Incentive (“ LTI ”) program including, without limitation, Employee Stock Option Plan, Employee Stock Appreciation Rights Plan, Performance Share Unit Plan, Restricted Share Unit Plan and Deferred Share Unit Plan, as each may be amended from time to time (including any performance-based grants under any such plans). For greater clarity, this Policy shall not apply to any Incentive-Based Compensation awarded, granted or paid to an Executive prior to the Effective Date.

Where:

 

    the Corporation is required to prepare an accounting restatement due to its material non-compliance with any financial reporting requirement under applicable securities laws (the “ Restatement ”), (the date upon which the Corporation is required to prepare such Restatement is hereinafter the “ Restatement Date ”);

 

    the Executive received Incentive-Based Compensation referable to the financial years subject to the Restatement in excess of what the Executive would have been paid under the Restatement (the “ Overcompensation Amount ”); and

 

    the Executive engaged in gross negligence, intentional misconduct or fraud which caused or significantly contributed to the Corporation’s material non-compliance with applicable securities laws which resulted in the requirement for the Restatement;

the Board shall be entitled:

 

    where and to the extent the Overcompensation Amount has been previously paid, transferred or otherwise made available to the Executive, to require the Executive, by written demand, to reimburse the Corporation for the Overcompensation Amount; and

 

    where all or a portion of the Overcompensation Amount has not been paid, transferred or otherwise made available to the Executive, the right of the Executive to be so paid or have such benefit transferred or otherwise made available to him or her shall, to the extent required to reimburse the Corporation for such Overcompensation Amount, immediately terminate and be forfeited by the Executive and where required, cancelled by the Corporation to such extent and upon such date as may be specified by the Board; and

 

    to the extent the Overcompensation Amount is not immediately recovered upon demand from the Executive, whether via direct reimbursement, forfeiture and/or cancellation, to require a sufficient quantity or value of any compensation owing by the Corporation to the Executive including, without limitation, any unvested or unexercised awards under the LTIs (the “ Outstanding LTIs ”), be immediately withheld and/or irrevocably cancelled by the Corporation to compensate for (or set off the value of same against) the Overcompensation Amount or any unrecovered portion thereof, and to bring any other actions against the Executive which the Board may deem necessary to recover the Overcompensation Amount.

 

 

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The period of time during which the Corporation shall be entitled to seek recovery of the Overcompensation Amount from the Executive shall be three (3) years from the Restatement Date. Recoupment of Overcompensation Amounts under this Policy shall be initiated by the Corporation at the request of the Board, and all amounts recoverable or payable hereunder shall be paid to the Corporation or as directed by the Board.

If Applicable Rules require the Corporation to adopt a policy or provisions relating to the recoupment or recovery of incentive-based or other compensation based on restated financial statements which are inconsistent with or materially differ from this Policy and the Board adopts such policy or provisions to comply with Applicable Rules (the “ New Policy ”), such New Policy shall replace and supersede this Policy and shall apply to Incentive-Based Compensation granted or awarded to the Executive following the effective date of the New Policy. Subject to Applicable Rules, this Policy shall continue to apply to Incentive-Based Compensation granted or awarded to the Executive prior to the effective date of the New Policy. This Policy may be terminated at any time by the Board.

 

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Exhibit 10.8

 

LOGO

ENCANA CORPORATION

EMPLOYEE STOCK APPRECIATION RIGHTS PLAN

Adopted with effect from February 12, 2008, as amended December 9, 2008,

November 30, 2009, April 20, 2010, July 20, 2010, February 24, 2015, and February 22, 2016


TABLE OF CONTENTS

 

Section

       Page  
1.  

PREAMBLE AND DEFINITIONS

     3   
2.  

ADMINISTRATION

     9   
3.  

GRANT OF SARS

     10   
4.  

VESTING OF SARS

     11   
5.  

TERMINATION OF EMPLOYMENT, DISABILITY, LEAVES OF ABSENCES, ETC.

     14   
6.  

EARLY EXERCISE AND ACCELERATED VESTING

     18   
7.  

EFFECTS OF ALTERATION OF SHARE CAPITAL

     18   
8.  

METHOD OF EXERCISE OF SARS

     19   
9.  

NO OTHER RIGHTS

     20   
10.  

GENERAL

     21   


ENCANA CORPORATION

EMPLOYEE STOCK APPRECIATION RIGHTS PLAN

(Adopted with effect from February 12, 2008, as amended December 9, 2008,

November 30, 2009, April 20, 2010, July 20, 2010, February 24, 2015 and February 22, 2016)

 

1. PREAMBLE AND DEFINITIONS

 

1.1 Title

The Plan described in this document shall be called the “Encana Corporation Employee Stock Appreciation Rights Plan” (the “Plan”).

 

1.2 Purposes of the Plan

The principal purposes of the Plan are to advance the interests of Corporation and its Affiliates by:

 

(a) promoting a proprietary interest in the Corporation among employees;

 

(b) attracting and retaining qualified employees the Corporation requires;

 

(c) providing a long-term incentive element in overall compensation of employees; and

 

(d) to promoting an alignment of interests between employees and shareholders of the Corporation.

 

1.3 Effective Date of the Plan

The Plan shall have effect from and after February 12, 2008.

 

1.4 Definitions

In the Plan, the following terms shall have the meanings respectively set forth below:

 

(a) Achieved Performance Criteria ” means the Performance Criteria which have been satisfied, as and when determined by the Committee, in respect of any particular Performance Period, and which shall be published on the Corporation’s internal employee website or otherwise communicated in writing to the employees (or, where necessary, to a Retired Participant) of the Corporation and its Affiliates;

 

(b) Affiliate ” means any corporation, partnership or other entity in which the Corporation, directly or indirectly, has a majority ownership interest;

 

(c) Anniversary Date ” means, in respect of each SAR, each anniversary of the Date of Grant;

 

(d)

Applicable Law ” means any applicable provision of law, domestic or foreign, including, without limitation, applicable securities legislation, together with all regulations, rules, policy statements, rulings, notices, orders or other instruments promulgated thereunder,


Encana Corporation    Page 2

Employee Stock Appreciation Rights Plan

(With amendments as of February 22, 2016)

  

 

  and, in respect of a Non-Canadian Participant, unless otherwise provided in a Grant Agreement, any rules of the New York Stock Exchange and, in respect of a Canadian Participant, unless otherwise provided in a Grant Agreement, any rules of the Toronto Stock Exchange;

 

(e) Appreciation Value ” means, in respect of each SAR, an amount equal to the closing price per Share, in respect of a Non-Canadian Participant, unless otherwise specified in a Grant Agreement, on the New York Stock Exchange and, in respect of a Canadian Participant, unless otherwise specified in a Grant Agreement, on the Toronto Stock Exchange, on the immediately preceding Trading Day the SAR is exercised, less the Base Value of the SAR; provided that if, in respect of a Non-Canadian Participant, the Shares are not listed and posted for trading on the New York Stock Exchange on the immediately preceding Trading Day the SAR is exercised, or, in respect of a Canadian Participant, are not listed and posted for trading on the Toronto Stock Exchange on the immediately preceding Trading Day the SAR is exercised, then “Appreciation Value” shall be the fair market value per Share as determined by the Board in its sole discretion, less the Base Value of the SAR;

 

(f) Base Value ” means, in respect of each SAR, the amount set by the Committee pursuant to Section 3.5;

 

(g) Blackout Period ” means a trading blackout period imposed by the Corporation under the Corporation’s Securities Trading and Insider Reporting Policy (as amended, supplemented or replaced by the Corporation from time to time);

 

(h) Board ” means the Board of Directors of the Corporation;

 

(i) Bonus SAR ” means any SAR that is granted to a Participant and is designated as a Bonus SAR pursuant to Section 4.1;

 

(j) Canadian Participant ” means a Participant who is a resident of Canada for the purposes of the Income Tax Act (Canada) or a Participant who is granted a SAR in respect of employment services to be rendered to the Corporation or an Affiliate in Canada;

 

(k) Change in Control ” means the date any of the following occurs:

(i) any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity, or any persons acting jointly or in concert with the foregoing, is, or becomes, the beneficial owner, directly or indirectly, of securities of the Corporation representing more than 30% of the combined voting power of the Corporation’s then outstanding securities entitled to vote in the election of the directors of the Corporation;

(ii) the Corporation shall have disposed of: (A) all or substantially all of its assets, such that shareholder approval was required or should have been required to be obtained under the Canada Business Corporations Act, or (B) assets in any 12-month period representing 50% or more of the total assets of the Corporation, determined as of the date of the audited financial statements of the Corporation then most recently published;


Encana Corporation    Page 3

Employee Stock Appreciation Rights Plan

(With amendments as of February 22, 2016)

  

 

(iii) pursuant to a single election or appointment or a series of elections or appointments over any period from and after the effective date of the Plan (A) those individuals who at the date of the effective date of the Plan constituted the Board, together with (B) any new or additional director or directors whose nomination for election by the Corporation’s shareholders, or whose appointment to the Board by the Board, has been approved by at least 75% of the votes cast by all of the directors then still in office, who either were directors at the effective date of the Plan or whose appointment or nomination for election was previously so approved, cease for any reason to constitute a majority of the Board; or

(iv) the Board, by resolution duly adopted by the affirmative vote of a simple majority of the votes cast by the Board, determines that, for purposes of the Plan, a Change in Control of the Corporation has occurred.

Securities beneficially owned or controlled or directed by an employee plan or related trust sponsored or maintained by the Corporation or any of its Affiliates shall not be taken into account in determining whether the threshold percentage in Section 1.4(l)(i) is exceeded.

For the purposes of this Section 1.4(l):

(i) the term “acting jointly or in concert” shall have the meaning ascribed to it in Section 159 of the Securities Act (Alberta), as amended; and

(ii) the term “beneficial ownership” shall be interpreted in accordance with Section 158(4) of the Securities Act (Alberta) and “beneficial owner” shall have a corresponding meaning, except that for purposes of the Plan, options and convertible securities granted by the Corporation to employees, officers or directors shall not be included in determining beneficial ownership or beneficial owner.

For greater certainty, and except as specifically provided in Sections 1.4(l)(ii) and 1.4(l)(iv), the sale, disposition or other divestiture of an Affiliate, in whole or in part, shall not constitute a Change in Control for the purposes of the Plan.

 

(l) Close of Business ” means, on any Trading Day, in respect of a Non-Canadian Participant, unless otherwise provided in a Grant Agreement, the close of trading on the New York Stock Exchange and, in respect of a Canadian Participant, unless otherwise provided in a Grant Agreement, the close of trading on the Toronto Stock Exchange;

 

(m) Committee ” means the Human Resources and Compensation Committee of the Board or such other committee of the Board, as constituted from time to time, which may be designated by the Board to, among other things, interpret, administer and implement the Plan, and any reference in the Plan to action by the Committee means action by or under the authority of the Committee or, if no Committee has been designated, by the Board;

 

(n)

Committee Meeting Date ” means the date of the meeting of the Committee held to review matters related to the SARs, including the determination of whether and the degree to which the Performance Criteria for a particular Performance Period have been satisfied and constitute “Achieved Performance Criteria”, which meeting shall occur at


Encana Corporation    Page 4

Employee Stock Appreciation Rights Plan

(With amendments as of February 22, 2016)

  

 

  least once annually and by no later than June 1 of the year immediately following the relevant Performance Period;

 

(o) Corporation ” means Encana Corporation and any successor corporation whether by amalgamation, merger or otherwise;

 

(p) Corporation Policies ” means, at a particular time, the policies and practices of the Corporation (or, where applicable, the Affiliate that employs the Participant), as published on the Corporation’s internal employee website or otherwise communicated in writing to the employees (or, where necessary, to a Retired Participant) of the Corporation and/or its Affiliates;

 

(q) Date Employment Ceases ” means, in respect of a Participant:

(i) in the case of voluntary termination of employment initiated by the Participant, the last date the Participant is, for the purposes of receiving his or her regular salary, on the payroll of the Corporation or an Affiliate;

(ii) in the case of involuntary termination of the Participant’s employment by the Corporation or an Affiliate for cause (as determined by the Corporation or the Affiliate, as applicable), the date written notification of dismissal from employment is delivered to the Participant;

(iii) in the case of involuntary termination of the Participant’s employment by the Corporation or an Affiliate other than for cause (as determined by the Corporation or the Affiliate, as applicable), the date identified in the written notification of termination of employment delivered to the Participant as the “Termination Date” or “Departure Date” and, where both dates are so referred to, the earlier thereof, and, where such date is not identified in the written notification, the date written notification of dismissal from employment is delivered to the Participant;

(iv) in the case where the Participant is employed by an Affiliate and for any reason including, without limitation, by reason of sale, disposition or other divestiture thereof, in whole or in part, such employer ceases to be an Affiliate of the Corporation, the effective date (in the case of a sale, disposition or other divestiture, the closing date of such transaction or series of transactions, as determined by the Corporation) upon which the Participant’s employer ceases to be an Affiliate;

but, for greater certainty, shall not include any notice period which arises or may be deemed to arise upon the termination of employment of the Participant, and shall not include the date the Participant ceases to be an employee of the Corporation or an Affiliate upon the Participant’s death or Retirement, or the date the Participant commences Short-Term Disability, Long-Term Disability, a Paid Leave of Absence, an Unpaid Leave of Absence, or Family Leave;

 

(r)

Date of Grant ” means, in respect of a particular SAR, the date upon which the Committee grants the SAR to the Participant. Where the Committee determines to grant any SAR on a date which is within a Blackout Period or where, for any reason: (i) a grant of a SAR falls on a day that is within a Blackout Period; or (ii) the Fair Market Value of the grant of a SAR is calculated using a Trading Day that is within a Blackout Period,


Encana Corporation    Page 5

Employee Stock Appreciation Rights Plan

(With amendments as of February 22, 2016)

  

 

  then the Date of Grant shall automatically occur and be effective on the sixth Trading Day immediately following the end of such Blackout Period to permit the Fair Market Value to be determined based on Trading Days which occur immediately following the end of any of such Blackout Period;

 

(s) Date of Retirement ” means, in respect of a Participant, the last day the Participant is, for the purposes of receiving his or her regular salary, on the payroll of the Corporation or an Affiliate immediately prior to commencing Retirement;

 

(t) Death or Retirement Exercise Period ” means, in respect of a particular SAR granted to a Participant, the period of time extending from the date of the Participant’s death or Date of Retirement, as applicable, to the earlier of: (i) the date that is six months following the date of the Participant’s death or Date of Retirement, as applicable; and (ii) the Expiry Date of the SAR. Should the Death or Retirement Exercise Period terminate on a date other than a Trading Day, the Death or Retirement Exercise Period shall terminate on the Close of Business on the last Trading Day prior to that date;

 

(u) Expiry Date ” means:

(i) in respect of a particular SAR granted to a Canadian Participant on or following February 24, 2015, the earlier of: (A) December 15 th of the calendar year in which the Vesting Date of such SAR occurs; and (B) the Close of Business on the seventh anniversary of the Date of Grant of such SAR. In respect of SAR granted to a Canadian Participant prior to February 24, 2015, the earlier of: (A) December 15 th of the calendar year in which the Vesting Date of such SAR occurs; and (B) the Close of Business on the fifth anniversary of the Date of Grant of such SAR; and

(ii) in respect of a particular SAR granted to a Non-Canadian Participant on or following February 24, 2015, the Close of Business on the seventh anniversary of the Date of Grant of such SAR. In respect of a SAR granted to a Canadian Participant prior to February, 24, 2015, the Close of Business on the fifth anniversary of the Date of Grant of such SAR;

Should the Expiry Date of a SAR fall on a date other than a Trading Day, the Expiry Date shall be the Close of Business on the last Trading Day prior to that date. Should the Expiry Date fall on a date which is within a Blackout Period, the provisions of Section 8.3 hereof shall apply;

 

(v) Fair Market Value ” means, with respect to a particular date:

(i) in respect of a Non-Canadian Participant, unless otherwise provided in a Grant Agreement, the volume-weighted average (rounded to two decimal places) of the trading price of a Share on the New York Stock Exchange during the immediately preceding five (5) Trading Day period prior to that particular date or, if the Shares did not trade on the New York Stock Exchange on a particular day during such period, the volume-weighted average (rounded to two decimal places) of the trading price of a Share on the New York Stock Exchange during the immediately preceding five (5) days on which the Shares were traded;


Encana Corporation    Page 6

Employee Stock Appreciation Rights Plan

(With amendments as of February 22, 2016)

  

 

(ii) in respect of a Canadian Participant, unless otherwise provided in a Grant Agreement, the volume-weighted average (rounded to two decimal places) of the trading price of a Share on the Toronto Stock Exchange during the immediately preceding five (5) Trading Day period prior to that particular date or, if the Shares did not trade on the Toronto Stock Exchange on a particular day during such period, the volume-weighted average (rounded to two decimal places) of the trading price of a Share on the Toronto Stock Exchange during the immediately preceding five (5) days on which the Shares were traded;

(iii) if, in respect of a Non-Canadian Participant, the Shares are not then listed and posted for trading on the New York Stock Exchange or, in respect of a Canadian Participant, are not listed and posted for trading on the Toronto Stock Exchange, then it shall be the fair market value per Share as determined by the Board in its sole discretion;

 

(w) Family Leave ” means, in respect of a Participant, a period during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered to be on family leave, and does not provide employment services to the Corporation or an Affiliate;

 

(x) Grant Agreement ” means a written agreement between the Corporation and a Participant under which a SAR is granted, as contemplated by Section 3.3, together with such schedules, amendments, deletions or changes thereto as are permitted under the Plan;

 

(y) Long-Term Disability ” means, in respect of a Participant, any period of time during which the Participant receives, or is determined to be entitled to receive, disability benefits under the Corporation’s or an Affiliate’s long-term disability plans;

 

(z) Maximum Performance Criteria ” means, in respect of the SARs granted pursuant to a particular Grant Agreement, that maximum Performance Criteria determined by the Committee, the achievement of which in a particular Performance Period shall entitle all of the Performance SARs and Bonus SARs granted to a Participant which are eligible to become Vested SARs in respect of such Performance Period to become Vested SARs, subject to the provisions of the Plan, and which shall be published on the Corporation’s internal employee website or otherwise communicated in writing to the employees (or, where necessary, to a Retired Participant) of the Corporation and its Affiliates;

 

(aa) Median Performance Criteria ” means, in respect of the SARs granted pursuant to a particular Grant Agreement, that median Performance Criteria determined by the Committee, the achievement of which in a particular Performance Period shall entitle all of the Performance SARs granted to a Participant which are eligible to become Vested SARs in respect of such Performance Period to become Vested SARs, and the over-achievement of which in a particular Performance Period shall entitle at least a portion of the Bonus SARs granted to a Participant which are eligible to become Vested SARs in respect of such Performance Period to become Vested SARs, and which shall be published on the Corporation’s internal employee website or otherwise communicated in writing to the employees (or, where necessary, to a Retired Participant) of the Corporation and its Affiliates;

 

(bb)

Minimum Performance Criteria ” means, in respect of the SARs granted pursuant to a particular Grant Agreement, that minimum Performance Criteria determined by the


Encana Corporation    Page 7

Employee Stock Appreciation Rights Plan

(With amendments as of February 22, 2016)

  

 

Committee, the over-achievement of which in a particular Performance Period shall entitle at least a portion of the Performance SARs granted to a Participant which are eligible to become Vested SARs in respect of such Performance Period to become Vested SARs, and which shall be published on the Corporation’s internal employee website or otherwise communicated in writing to the employees (or, where necessary, to a Retired Participant) of the Corporation and its Affiliates;

 

(cc) Non-Canadian Participant ” means a Participant who is a non-resident of Canada for the purposes of the Income Tax Act (Canada) and who is granted a SAR in respect of employment services to be rendered to the Corporation or an Affiliate outside Canada;

 

(dd) Paid Leave of Absence ” means, in respect of a Participant, a period during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered to be on a leave of absence and continues to receive his or her normal salary, but does not provide employment services to the Corporation or an Affiliate;

 

(ee) Participant ” means any employee of the Corporation or an Affiliate as the Committee may designate from time to time as being eligible to participate in the Plan, and which includes a Canadian Participant and a Non-Canadian Participant;

 

(ff) Performance Criteria ” means, in respect of a Performance SAR or a Bonus SAR, that performance criteria determined by the Committee and which shall be published on the Corporation’s internal employee website or otherwise communicated in writing to the employees (or, where necessary, to a Retired Participant) of the Corporation and its Affiliates;

 

(gg) Performance Period ” means, in respect of a Performance SAR or a Bonus SAR, the period in which the Performance Criteria must be satisfied in order for such SAR to become a Vested SAR and, except as otherwise provided:

(i) the “ First Performance Period ” shall be the period extending from January 1 to December 31 of the year in which the Date of Grant occurs;

(ii) the “ Second Performance Period ” shall be the period extending from January 1 to December 31 of the year immediately following the year in which the Date of Grant occurs; and

(iii) the “ Third Performance Period ” shall be the period extending from January 1 to December 31 of the second year immediately following the year in which the Date of Grant occurs;

 

(hh) Performance SAR ” means any SAR that is granted to a Participant and is designated as a Performance SAR pursuant to Section 4.1;

 

(ii) Plan ” means this Encana Corporation Employee Stock Appreciation Rights Plan, including any schedules or appendices hereto, as amended from time to time;

 

(jj) Retired Participant ” means a Participant who ceases to be an employee of the Corporation or an Affiliate by reason of his or her Retirement;


Encana Corporation    Page 8

Employee Stock Appreciation Rights Plan

(With amendments as of February 22, 2016)

  

 

(kk) Retirement ” means, in respect of a Participant, the early or normal retirement of the Participant from employment with the Corporation or an Affiliate in accordance with the Corporation Policies;

 

(ll) Return to Service Date ” means, in respect of a Participant, the date, following an Unpaid Leave of Absence, that the Participant recommences the provision of employment services to the Corporation or an Affiliate, in full or in part;

 

(mm) SAR ” means a stock appreciation right granted to a Participant that is represented by a bookkeeping entry on the books of the Corporation, which entitles the Participant, upon exercise of a Vested SAR, and subject to the terms and conditions of the Plan and the applicable Grant Agreement, to a payment equal to the Appreciation Value;

 

(nn) SAR Period ” means, in respect of a particular Vested SAR, the period of time during which such Vested SAR may be exercised by a Participant, which shall be, subject to Section 8.3, the period of time extending from the Vesting Date of such Vested SAR to the Expiry Date of such Vested SAR;

 

(oo) Section 409A ” means section 409A of the United States Internal Revenue Code of 1986, as amended, and any applicable United States Treasury Regulations and other binding regulatory guidance promulgated thereunder;

 

(pp) Share ” means, in respect of a Non-Canadian Participant, unless otherwise provided in a Grant Agreement, one or more common shares in the capital of the Corporation as are currently traded on the New York Stock Exchange and, in respect of a Canadian Participant, unless otherwise provided in a Grant Agreement, one or more common shares of the Corporation as are currently traded on the Toronto Stock Exchange;

 

(qq) Short-Term Disability ” means, in respect of a Participant, any period of time during which the Participant receives disability benefits under the Corporation’s or an Affiliate’s short-term disability plans;

 

(rr) Time-Based SAR ” means any SAR that is granted to a Participant and designated as a Time-Based SAR pursuant to Section 4.1;

 

(ss) Termination Exercise Period ” means, in respect of a particular SAR granted to a Participant, the period of time extending from the Date Employment Ceases to the earlier of: (i) the Close of Business on the 60 th Trading Day after the Date Employment Ceases; and (ii) the Expiry Date of the SAR;

 

(tt) Termination of Employment ” means, in respect of a Participant, an event by which the Participant ceases to be an employee of the Corporation or an Affiliate but, for greater certainty, shall not include an event whereby the Participant ceases to be an employee of the Corporation or an Affiliate upon the Participant’s death or Retirement or where the Participant commences Short-Term Disability, Long-Term Disability, a Paid Leave of Absence, an Unpaid Leave of Absence, or Family Leave;

 

(uu)

Trading Day ” means, subject to Section 1.4(r), in respect of a Non-Canadian Participant, unless otherwise specified in a Grant Agreement, a day on which the New York Stock Exchange is open for trading and, in respect of a Canadian Participant,


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  unless otherwise specified in a Grant Agreement, a day upon which the Toronto Stock Exchange is open for trading;

 

(vv) Unpaid Leave of Absence ” means, in respect of a Participant, a period of time during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered to be on a leave of absence and does not continue to receive his or her salary or provide employment services to the Corporation or an Affiliate which, for the purposes of the Plan, shall be deemed to commence on the “ Date of Unpaid Leave of Absence ”, being the first day of the Participant’s Unpaid Leave of Absence, as communicated in writing to the Participant by the Corporation or an Affiliate in accordance with the Corporation Policies;

 

(ww) US Participant ” means a Participant whose income in respect of services performed for the Corporation or an Affiliate is subject to Section 409A;

 

(xx) Vested SAR ” has the meaning assigned by Section 4.2; and

 

(yy) Vesting Date ” means, in respect of a particular SAR, the date on which the SAR becomes a Vested SAR.

 

1.5 Construction and Interpretation

 

(a) In the Plan, references to the masculine include the feminine, and references to the singular shall include the plural and vice versa, as the context shall require.

 

(b) The Plan shall be governed and interpreted in accordance with the laws of the Province of Alberta and any actions, proceedings or claims in any way pertaining to the Plan shall be commenced in the courts of the Province of Alberta.

 

(c) If any provision of the Plan or part hereof is determined to be void or unenforceable all or in part, such determination shall not affect the validity or enforcement of any other provision or part thereof.

 

(d) Headings wherever used herein are for reference purposes only and do not limit or extend the meaning of the provisions herein contained. A reference to a section or schedule shall, except where expressly stated otherwise, mean a section or schedule of the Plan, as applicable.

 

2. ADMINISTRATION

 

2.1 Administration by Committee

 

(a) The Plan shall be administered by the Committee.

 

(b)

Without limiting the generality of Section 2.1(a), subject to the terms and conditions set forth herein, the Committee is authorized to grant SARs, determine the time or times when SARs will be granted, vest and be exercisable, determine whether SARs will be subject to any restrictions or conditions, including conditions regarding the financial and other performance of the Corporation or its Affiliates all on such terms (which may vary


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Employee Stock Appreciation Rights Plan

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  between Participants and SARs) as it shall determine. In addition, the Committee shall have full and complete authority to

(i) construe and interpret the Plan;

(ii) prescribe, amend and rescind rules, regulations or policies relating to the Plan; and

(iii) make all other determinations necessary or advisable for the administration of the Plan.

 

2.2 Delegation

The Committee shall also have the right to delegate the administration and operation of this Plan, in whole or in part, to any director, officer or employee of the Corporation or an Affiliate.

 

2.3 Determinations Binding

All determinations and interpretations made by the Committee shall be binding on all Participants and on their legal personal representatives and beneficiaries.

 

3. GRANT OF SARS

 

3.1 Designation of SAR Recipients

The Committee may from time to time designate individuals who are employees of the Corporation or an Affiliate and to whom, in the opinion of the Committee, SARs should be granted.

 

3.2 SARs to be Granted in Respect of Future Employment Services

For greater certainty and notwithstanding anything in the Plan or in a Grant Agreement, a SAR shall be granted solely in respect of the employment services of a Participant to be rendered subsequent to the Date of Grant to the Corporation and its Affiliates. The Committee may only grant a SAR to a Participant so long as none of the main purposes of such grant is to provide the Participant with a payment that is in lieu of salary or wages for the Participant for services rendered by such Participant in a previous calendar year.

 

3.3 Grant Agreement

Each grant of SARs and participation of an employee in the Plan shall be evidenced by a Grant Agreement between the Corporation and the Participant in the form approved by the Committee. A Participant may hold SARs granted under more than one Grant Agreement at any time.

 

3.4 Terms and Conditions

Subject to the provisions of the Plan, the Committee shall determine the number of SARs to be granted to each Participant and all other terms, conditions and limitations of the grant of SARs,


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Employee Stock Appreciation Rights Plan

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including any conditions with respect to the vesting of SARs, in whole or in part, or the payment of cash under the Plan, and any other terms and conditions the Committee may in its discretion determine, which terms and conditions shall, to the extent not contained in the Plan, be set out in the Grant Agreement.

 

3.5 Base Value

The Base Value for each SAR that is granted pursuant to the Plan shall be set by the Committee at the Date of Grant but, for greater certainty and notwithstanding anything in the Plan or in a Grant Agreement, the Base Value of any SAR shall not be less than the Fair Market Value of a Share at the Date of Grant.

 

3.6 No Value Prior to Vesting

For greater certainty, no SAR granted hereunder shall have any value prior to becoming a Vested SAR and the commencement of the SAR Period.

 

3.7 No Certificates

No certificates shall be issued with respect to SARs.

 

3.8 No Right to Additional SARs

Each Participant agrees and acknowledges (and shall be conclusively deemed to have so acknowledged and agreed by participating in the Plan) that nothing in the Plan or a Grant Agreement nor the grant of any SARs hereunder shall be construed to require the Corporation to grant an additional SAR or SARs. The grant of additional SARs by the Corporation shall, in each case, be evidenced by a new and separate Grant Agreement between the Corporation and the Participant in respect of such additional SARs.

 

4. VESTING OF SARS

 

4.1 Designation of SARs as Time-Based SARs, Performance SARs, and Bonus SARs

 

(a) The Committee shall specify, at the time SARs are granted to a Participant pursuant to the Plan, whether such SARs are Time-Based SARs, Performance SARs, Bonus SARs, or a combination thereof.

 

(b) The type (or types) of SARs granted to a Participant, whether Time-Based SARs, Performance SARs and/or Bonus SARs (or, any combination thereof), shall be determined by the Committee and specified in the Participant’s corresponding Grant Agreement.

 

4.2 Vesting Conditions

The Committee shall specify, at the time SARs are granted to a Participant pursuant to the Plan, the vesting conditions for such SARs. If no specific determination is made by the Committee at the time SARs are granted to a Participant, and unless otherwise provided in the Grant


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Employee Stock Appreciation Rights Plan

(With amendments as of February 22, 2016)

  

 

Agreement relating to such SARs, the SARs shall vest in the applicable Participant and each shall become a “Vested SAR” in accordance with the following:

 

(a) In respect of the Time-Based SARs granted to a Participant:

(i) 30 percent of the Time-Based SARs shall vest on the first Anniversary Date;

(ii) an additional 30 percent of the Time-Based SARs shall vest on the second Anniversary Date; and

(iii) an additional 40 percent of the Time-Based SARs shall vest on the third Anniversary Date;

 

(b) In respect of the Performance SARs granted to a Participant:

(i) a number of Performance SARs shall vest on the later of the first Anniversary Date and the day immediately following the Committee Meeting Date in the year immediately following the First Performance Period equal to:

(A) where the Achieved Performance Criteria for the First Performance Period is equal to or less than the Minimum Performance Criteria, nil;

(B) where the Achieved Performance Criteria for the First Performance Period is greater than the Minimum Performance Criteria but is less than the Median Performance Criteria, the amount calculated in accordance with the following formula: 30 percent of the Performance SARs X (Achieved Performance Criteria – Minimum Performance Criteria);

(C) where the Achieved Performance Criteria for the First Performance Period is equal to or greater than the Median Performance Criteria, 30 percent of the Performance SARs;

(ii) an additional number of Performance SARs shall vest on the later of the second Anniversary Date and the day immediately following the Committee Meeting Date in the year immediately following the Second Performance Period equal to:

(A) where the Achieved Performance Criteria for the Second Performance Period is equal to or less than the Minimum Performance Criteria, nil;

(B) where the Achieved Performance Criteria for the Second Performance Period is greater than the Minimum Performance Criteria but is less than the Median Performance Criteria, the amount calculated in accordance with the following formula: 30 percent of the Performance SARs X (Achieved Performance Criteria – Minimum Performance Criteria);

(C) where the Achieved Performance Criteria for the Second Performance Period is equal to or greater than the Median Performance Criteria, 30 percent of the Performance SARs;


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Employee Stock Appreciation Rights Plan

(With amendments as of February 22, 2016)

  

 

(iii) an additional number of Performance SARs shall vest on the later of the third Anniversary Date and the day immediately following the Committee Meeting Date in the year immediately following the Third Performance Period equal to:

(A) where the Achieved Performance Criteria for the Third Performance Period is equal to or less than the Minimum Performance Criteria, nil;

(B) where the Achieved Performance Criteria for the Third Performance Period is greater than the Minimum Performance Criteria but is less than the Median Performance Criteria, the amount calculated in accordance with the following formula: 40 percent of the Performance SARs X (Achieved Performance Criteria – Minimum Performance Criteria);

(C) where the Achieved Performance Criteria for the Third Performance Period is equal to or greater than the Median Performance Criteria, 40 percent of the Performance SARs;

 

(c) In respect of the Bonus SARs granted to a Participant:

(i) a number of Bonus SARs shall vest on the later of the first Anniversary Date and the day immediately following the Committee Meeting Date in the year immediately following the First Performance Period equal to:

(A) where the Achieved Performance Criteria for the First Performance Period is equal to or less than the Median Performance Criteria, nil;

(B) where the Achieved Performance Criteria for the First Performance Period is greater than the Median Performance Criteria but is less than the Maximum Performance Criteria, the amount calculated in accordance with the following formula: 30 percent of the Bonus SARs X (Achieved Performance Criteria – Median Performance Criteria);

(C) where the Achieved Performance Criteria for the First Performance Period is equal to or greater than the Maximum Performance Criteria, 30 percent of the Bonus SARs;

(ii) an additional number of Bonus SARs shall vest on the later of the second Anniversary Date and the day immediately following the Committee Meeting Date in the year immediately following the Second Performance Period equal to:

(A) where the Achieved Performance Criteria for the Second Performance Period is equal to or less than the Median Performance Criteria, nil;

(B) where the Achieved Performance Criteria for the Second Performance Period is greater than the Median Performance Criteria but is less than the Maximum Performance Criteria, the amount calculated in accordance with the following formula: 30 percent of the Bonus SARs X (Achieved Performance Criteria – Median Performance Criteria);


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Employee Stock Appreciation Rights Plan

(With amendments as of February 22, 2016)

  

 

(C) where the Achieved Performance Criteria for the Second Performance Period is equal to or greater than the Maximum Performance Criteria, 30 percent of the Bonus SARs;

(iii) an additional number of Bonus SARs shall vest on the later of the third Anniversary Date and the day immediately following the Committee Meeting Date in the year immediately following the Third Performance Period equal to:

(A) where the Achieved Performance Criteria for the Third Performance Period is equal to or less than the Median Performance Criteria, nil;

(B) where the Achieved Performance Criteria for the Third Performance Period is greater than the Median Performance Criteria but is less than the Maximum Performance Criteria, the amount calculated in accordance with the following formula: 40 percent of the Bonus SARs X (Achieved Performance Criteria – Median Performance Criteria); and

(C) where the Achieved Performance Criteria for the Third Performance Period is equal to or greater than the Maximum Performance Criteria, 40 percent of the Bonus SARs.

 

4.3 Waiver by Participant of Vesting

At the discretion of the Committee, the Committee may specify in any Grant Agreement relating to SARs that the Participant is entitled to waive vesting of any particular SAR at any time before the date that would otherwise be the Vesting Date of such SAR pursuant to Section 4.2. Where such right has been granted to a Participant in the Grant Agreement, the Grant Agreement shall specify all terms and conditions pursuant to which the waiver right may be exercised, including the time and manner of the waiver, and the future characterization, treatment and terms and conditions of a SAR, the vesting of which has been waived pursuant to this Section 4.3 and the applicable Grant Agreement.

 

5. TERMINATION OF EMPLOYMENT, DISABILITY, LEAVES OF ABSENCES, ETC.

 

5.1 Termination of Employment

Unless otherwise determined by the Committee, and unless otherwise provided in the Grant Agreement relating to a SAR, upon the occurrence of a Termination of Employment of a Participant:

 

(a) The Participant shall be entitled to exercise any Vested SARs during the Termination Exercise Period, but only to the extent that such Vested SARs have become Vested SARs pursuant to Section 4.2 on or prior to the Date Employment Ceases; and

 

(b) For greater certainty, notwithstanding Section 4.2, SARs which do not become Vested SARs on or prior to the Date Employment Ceases shall not thereafter become Vested SARs.

 

5.2 Death or Retirement of Participant


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Employee Stock Appreciation Rights Plan

(With amendments as of February 22, 2016)

  

 

Unless otherwise determined by the Committee, and unless otherwise provided in the Grant Agreement relating to a SAR, in the event a Participant ceases to be an employee of the Corporation or an Affiliate by reason of the Participant’s death or Retirement:

 

(a) Where the Participant’s death or Retirement occurs on a date that is prior to the date that the Participant attains the age of 60 years, then:

(i) the Participant shall be entitled to exercise any Vested SARs during the Death or Retirement Exercise Period, but only to the extent that such Vested SARs have become Vested SARs pursuant to Section 4.2 on or prior to the date of the Participant’s death or Date of Retirement, as applicable; and

(ii) for greater certainty, notwithstanding Section 4.2, SARs which do not become Vested SARs on or prior to the date of the Participant’s death or Date of Retirement, as applicable, shall not thereafter become Vested SARs;

 

(b) Where the Participant’s death or Retirement occurs on or after the date the Participant attains the age of 60 years but before the date that the Participant attains the age of 65 years, then:

(i) Time-Based SARS shall continue to be and become Vested SARs in accordance with the provisions of Section 4.2(a) and the Participant shall be entitled to exercise any Time-Based SARs which become Vested SARs until the Expiry Date; and

(ii) Performance SARs and Bonus SARs shall continue to be and become Vested SARs in accordance with the provisions of Sections 4.2(b) and (c), respectively, and the Participant shall be entitled to exercise any Performance SARs or Bonus SARs which become Vested SARs until the Expiry Date;

 

(c) Where the Participant’s death or Retirement occurs on or after the date the Participant attains the age of 65 years, then:

(i) the Participant shall be entitled, during the period extending from the date of the Participant’s death or Date of Retirement, as applicable, to the Expiry Date, to exercise in full or in part any unexercised Time-Based SAR (irrespective of whether such SAR has become a Vested SAR in accordance with Section 4.2(a)); and

(ii) Performance SARs and Bonus SARs shall continue to be and become Vested SARs in accordance with the provisions of Sections 4.2(b) and (c), respectively, and the Participant shall be entitled to exercise any Performance SARs or Bonus SARs which become Vested SARs until the Expiry Date.

 

5.3 Disability of a Participant

Unless otherwise determined by the Committee, and unless otherwise provided in the Grant Agreement relating to a SAR, in the event of a Participant’s Short-Term Disability or Long-Term Disability, SARs shall continue to be and become Vested SARs in accordance with the provisions of Section 4.2 and the Participant shall be entitled to exercise any Vested SARs during the period of such Short-Term Disability or Long-Term Disability and thereafter, unless there occurs a Termination of Employment during such period, in which case the provisions of


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Employee Stock Appreciation Rights Plan

(With amendments as of February 22, 2016)

  

 

Section 5.1 shall apply, or unless the Participant’s death or Retirement occurs during such period, in which case the provisions of Section 5.2 shall apply.

 

5.4 Paid Leave of Absence and Family Leave

Unless otherwise determined by the Committee, and unless otherwise provided in the Grant Agreement relating to a SAR, in the event a Participant is on a Paid Leave of Absence or is on Family Leave, SARs shall continue to be and become Vested SARs in accordance with the provisions of Section 4.2 and the Participant shall be entitled to exercise any Vested SARs during the period of such Paid Leave of Absence or Family Leave and thereafter, unless there occurs a Termination of Employment during such period, in which case the provisions of Section 5.1 shall apply, or unless the Participant’s death or Retirement occurs during such period, in which case the provisions of Section 5.2 shall apply.

 

5.5 Unpaid Leave of Absence

Unless otherwise determined by the Committee, and unless otherwise provided in the Grant Agreement relating to a SAR, in the event a Participant is on an Unpaid Leave of Absence:

 

(a) SARs shall continue to be and become Vested SARs in accordance with the provisions of Section 4.2 during the period commencing on the Date of Unpaid Leave of Absence and ending on the 31 st calendar day following the Date of Unpaid Leave of Absence, unless there occurs a Termination of Employment during such period, in which case the provisions of Section 5.1 shall apply, or unless the Participant’s death or Retirement occurs during such period, in which case the provisions of Section 5.2 shall apply;

 

(b) Notwithstanding Section 4.2, SARs which do not become Vested SARs on or prior to the 31 st calendar day following the Date of Unpaid Leave of Absence shall not become Vested SARs during the balance of the Participant’s Unpaid Leave of Absence, unless the Participant’s death or Retirement occurs during such period, in which case the provisions of Section 5.2 shall apply;

 

(c) Notwithstanding Section 4.2, SARs which do not become Vested SARs on or prior to the 31 st calendar day following the Date of Unpaid Leave of Absence shall become Vested SARs on the Participant’s Return to Service Date, but only to the extent that such SARs would have become Vested SARs pursuant to Section 4.2 on or prior to the Return to Service Date if the period of Unpaid Leave of Absence had not occurred and provided that the Return to Service Date occurs prior to the Expiry Date;

 

(d) In the event that a Participant’s Return to Service Date occurs prior to the Expiry Date, any SARs which did not become Vested SARs on or prior to the 31 st calendar day following the Date of Unpaid Leave of Absence or pursuant to Section 5.5(c) shall become Vested SARs solely in accordance with the provisions of Section 4.2; and

 

(e)

From the Date of Unpaid Leave of Absence until the Expiry Date, the Participant shall be entitled to exercise any Vested SARs which become Vested SARs in accordance with the provisions hereof, unless there occurs a Termination of Employment during such period of Unpaid Leave of Absence, in which case the provisions of Section 5.1 shall


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Employee Stock Appreciation Rights Plan

(With amendments as of February 22, 2016)

  

 

  apply, or unless the Participant’s death or Retirement occurs during such period, in which case the provisions of Section 5.2 shall apply.

 

5.6 Forfeiture and Termination of SARs

Unless otherwise determined by the Committee, and unless otherwise provided in the Grant Agreement relating to a SAR, and subject to the passing by the Committee of a resolution pursuant to Sections 6.1 or 6.2:

 

(a) A Performance SAR which does not become a Vested SAR by a Vesting Date contemplated in Section 4.2(b) as a result of the Achieved Performance Criteria for the particular Performance Period being less than the Median Performance Criteria shall be forfeited by the Participant and shall terminate on the day that would otherwise be the Vesting Date for such Performance SAR and, thereafter, the Participant will have no further right, title or interest in such Performance SAR;

 

(b) A Bonus SAR which does not become a Vested SAR by a Vesting Date contemplated in Section 4.2(c) as a result of the Achieved Performance Criteria for the particular Performance Period being less than the Maximum Performance Criteria shall be forfeited by the Participant and shall terminate on the day that would otherwise be the Vesting Date for such Bonus SAR and, thereafter, the Participant will have no further right, title or interest in such Bonus SAR;

 

(c) Unless previously forfeited in accordance with the provisions hereof, upon the occurrence of a Participant’s Termination of Employment, SARs which have not become Vested SARs on or prior to the Date Employment Ceases shall be forfeited by the Participant and shall terminate on the Date Employment Ceases and, thereafter, the Participant will have no further right, title or interest in such SARs;

 

(d) Upon the occurrence of a Participant’s Termination of Employment, Vested SARs which are not exercised by the end of the Termination Exercise Period shall be forfeited by the Participant and shall terminate on the last day of the Termination Exercise Period and, thereafter, the Participant will have no further right, title or interest in such Vested SARs;

 

(e) Where a Participant ceases to be an employee of the Corporation or an Affiliate by reason of the Participant’s death or Retirement on a date that is prior to the date that the Participant attains the age of 60 years, unless previously forfeited in accordance with the provisions hereof, SARs which have not become Vested SARs on or prior to the date of death or Date of Retirement, as applicable, shall be forfeited by the Participant and shall terminate on the date of death or Date of Retirement, as applicable, and, thereafter, the Participant will have no further right, title or interest in such SARs;

 

(f) Where a Participant ceases to be an employee of the Corporation or an Affiliate by reason of the Participant’s death or Retirement on a date that is prior to the date that the Participant attains the age of 60 years, Vested SARs which are not exercised by the end of the Death or Retirement Exercise Period shall be forfeited by the Participant and shall terminate on the last day of the Death or Retirement Exercise Period and, thereafter, the Participant will have no further right, title or interest in such Vested SARs;


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Employee Stock Appreciation Rights Plan

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(g) On the Expiry Date, any SAR which has not been exercised or otherwise forfeited and terminated pursuant to the provisions hereof shall expire and be of no further force or effect whatsoever; and

 

(h) After the occurrence of any of the events in Sections 5.6(a) – (g), the Grant Agreement shall terminate and be of no further force or effect whatsoever with respect to those SARs which have been forfeited and terminated or have expired and the Participant shall have no cause of action nor make any claim against the Corporation or any Affiliate for damages or for loss of opportunity arising from the forfeiture and termination or expiry of such SARs or the termination of the Grant Agreement insofar as it relates to such SARs pursuant to this Section 5.6.

 

6. EARLY EXERCISE AND ACCELERATED VESTING

 

6.1 Extension of Performance Period

Notwithstanding any other provision of the Plan, prior to the date on which a Performance Period in respect of a particular Performance SAR or Bonus SAR ends, the Committee may pass a resolution which extends such Performance Period; provided that, subject to Section 8.3, no such extension shall be past the Close of Business on the seventh anniversary of the Date of Grant of such SAR; and further provided that no such extension shall be made if such extension would result in any adverse Canadian or US federal income tax consequences.

 

6.2 Waiver of Vesting Conditions

Notwithstanding any other provision of the Plan, the Committee may, at any time prior to the Vesting Date of a particular Performance SAR or Bonus SAR, pass a resolution which waives, in whole or in part, the requirements of Section 4.2 that there be a specified Achieved Performance Criteria prior to a Performance SAR or Bonus SAR becoming a Vested SAR.

 

6.3 Accelerated Vesting

Notwithstanding any other provision of the Plan, but subject to Section 6.4, the Committee may pass a resolution which accelerates the vesting of a SAR and which permits a Participant to exercise in full or in part any unexercised SAR, whether or not the SAR has otherwise become a Vested SAR, at such time or times and/or in such manner following the passing of such resolution as is specified in the resolution, which resolution may be passed for any reason as determined by the Committee which, in the sole opinion of the Committee, warrants altering the provisions pursuant to which a SAR vests or is exercisable, including, without limitation, in respect of a Bonus SAR, upon the occurrence of a Change in Control.

 

6.4 Accelerated Vesting on Change of Control

Notwithstanding any other provision of the Plan, upon the occurrence of a Change in Control, all Participants shall be entitled, on the date of the Change in Control, to exercise in full or in part any unexercised Time-Based SAR and Performance SAR (irrespective of whether such Time-Based SAR or Performance SAR has become a Vested SAR in accordance with Section 4.2(a) and 4.2(b) as applicable) until the Expiry Date.


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Employee Stock Appreciation Rights Plan

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7. EFFECTS OF ALTERATION OF SHARE CAPITAL

 

7.1 General

In the event of any change in the Shares by reason of any stock dividend, split, recapitalization, merger, consolidation, combination or exchange of shares or other similar corporate change, equitable adjustments may be made in: (i) the number of SARs, (ii) in the manner of determining the Base Value, Fair Market Value and Appreciation Value of the SARs, (iii) the type of SAR, and (iv) the SAR Period. The Committee shall determine which adjustments shall be made in any such event in its sole discretion and its determination shall be conclusive and binding for all purposes of the Plan and any applicable Grant Agreement; provided that such adjustments shall not result in any adverse Canadian or United States federal income tax consequences.

 

8. METHOD OF EXERCISE OF SARS

 

8.1 Exercise of SAR

Each Vested SAR may be exercised, during the SAR Period (unless terminated earlier pursuant to the provisions of the Plan or the Grant Agreement), by a Participant (or, in the event of the Participant’s death or incapacity, by the Participant’s duly appointed legal guardian or legal personal representative) in a manner prescribed by the Corporation from time to time as published on the Corporation’s internal employee website or otherwise communicated in writing to the Participant from time to time.

 

8.2 Exercises only during SAR Period

For greater certainty, no SAR may be exercised after the expiry of the SAR Period.

 

8.3 Blackout Period

Notwithstanding Section 8.2, if the SAR Period of a SAR expires during, or within ten (10) business days following a Blackout Period, then the SAR Period of such SAR shall be extended to the date which is ten (10) business days after the last day of the Blackout Period, after which time such SAR shall expire and terminate; provided that, under no circumstances, shall the SAR Period for a SAR granted or held by a Canadian Participant extend beyond December 15 th of the calendar year containing the Vesting Date of such SAR; and further provided that the SAR Period for a SAR granted or held by a US Participant shall not be extended under this Section 8.3 if and to the extent that such extension would cause the acceleration of taxes due or the imposition of additional taxes by operation of Section 409A.

 

8.4 Payment in Respect of SAR

 

(a) Subject to Section 8.4(b) and (c), as soon as practicable after a Participant has exercised a Vested SAR, the Participant will be paid the Appreciation Value of that SAR, in cash, less any applicable tax or other source withholdings.

 

(b)

The Corporation may, in its sole discretion, elect to satisfy, in whole or part, the cash payment obligation in Section 8.4(a) by instructing an independent broker to acquire a number of fully paid Shares on the open market on behalf of the Participant the number


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Employee Stock Appreciation Rights Plan

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  of such Shares being the result obtained when the amount of cash which would have otherwise been paid pursuant to Section 8.4(a) is divided by an amount equal to the closing price per Share, in respect of a Non-Canadian Participant, unless otherwise specified in a Grant Agreement, on the New York Stock Exchange and, in respect of a Canadian Participant, unless otherwise specified in a Grant Agreement, on the Toronto Stock Exchange, on the last Trading Day immediately preceding the date of payment. In such a case, the independent broker will purchase such Shares on the open market as soon as practicable thereafter and within the limits imposed by Section 8.4(c), if applicable, and the broker will deliver such Shares to the Participant. The Corporation will pay all brokerage fees arising in connection with the acquisition of the Shares of the Corporation by the broker on the open market.

 

(c) For greater certainty, any amount payable to a Canadian Participant in respect of the exercise of a Vested SAR shall be paid no later than December 31 of the calendar year in which such SAR was exercised.

 

(d) All payments and benefits under the Plan shall, in respect of a Non-Canadian Participant, unless otherwise specified in a Grant Agreement, be determined and paid in the lawful currency of the United States and, in respect of a Canadian Participant, unless otherwise specified in a Grant Agreement, be determined and paid in the lawful currency of Canada.

 

(e) Thereafter, for greater certainty, such number of Vested SARs as are exercised shall be cancelled and terminated and the Participant will have no further right, title or interest in such exercised SARs.

 

9. NO OTHER RIGHTS

 

9.1 No Rights of Shareholder

SARs are not Shares and no SAR granted hereunder shall entitle any Participant to any Shares in the capital of the Corporation. For greater certainty, a Participant shall not have the right or be entitled to exercise any voting rights, receive dividends or have or be entitled to any other rights of a shareholder of the Corporation with respect to any SAR held.

 

9.2 No Right to Employment

Nothing in the Plan or any SAR shall constitute or be construed to constitute or be evidence of an agreement or understanding, express or implied, on the part of the Corporation or an Affiliate to retain the Participant in the Participant’s employment for any specific period or in any specific capacity or position or affect in any way the right of the Corporation or an Affiliate to terminate the employment of the Participant.

 

9.3 No Rights Unless Vested SARs Exercised

For greater certainty, no Participant or any other person claiming through a Participant shall be entitled to any benefit hereunder in respect of any SARs prior to the date on which such SARs become Vested SARs and are exercised.


Encana Corporation    Page 21

Employee Stock Appreciation Rights Plan

(With amendments as of February 22, 2016)

  

 

10. GENERAL

 

10.1 Compliance with Applicable Law

Each Participant acknowledges and agrees (and shall be conclusively deemed to have so acknowledged and agreed by participating in the Plan) that the Participant will, at all times, act in strict compliance with Applicable Law and all Corporation Policies applicable to the Participants in connection with the Plan. Such Applicable Law and Corporation Policies shall include, without limitation, those governing “insiders” of “reporting issuers” as those terms are construed for the purposes of applicable securities laws, regulations and rules.

 

10.2 Subject to Applicable Law

The Corporation’s grant of any SAR and the obligation to make any payments under the Plan or a Grant Agreement is subject to compliance with Applicable Law. As a condition of participating in the Plan, each Participant agrees to comply with all such Applicable Law and agrees to furnish to the Corporation all information and undertakings as may be required to permit compliance with Applicable Law.

 

10.3 Withholdings

 

(a) The Corporation or any Affiliate may withhold or cause to be withheld from any amount payable to a Participant, either under the Plan, a Grant Agreement, or otherwise, such amount as may be necessary so as to ensure that the Corporation or any Affiliate, as applicable, will be able to comply with the applicable provisions of any federal, provincial, state or local law relating to the withholding of tax or other required deductions, including on the amount, if any, includable in the income of a Participant.

 

(b) Each Participant acknowledges and agrees (and shall be conclusively deemed to have so acknowledged and agreed by participating in the Plan) that all taxes which may be payable by the Participant as a result of the grant, holding or exercise of the SARs are the Participant’s sole responsibility.

 

10.4 Amendment and Termination

 

(a) Subject to Applicable Law and to Sections 10.4(b) and (c), the Board (or the Committee, as applicable) may, at any time, suspend, terminate, amend or revise the Plan, the terms of any Grant Agreement, or the terms of any SAR granted, provided, however, that, no such amendment may, except with the consent of a Participant, alter or impair any SAR previously granted to such Participant under the Plan. The Board (or the Committee, as applicable) may, with the consent of the Participant, cancel the unexercised balance of an SAR.

 

(b) Notwithstanding Section 10.4(a), the Board (or the Committee, as applicable) shall retain the power and authority to amend or modify the Plan and any Grant Agreement entered into hereunder to the extent the Committee in its sole discretion deems necessary or advisable to comply with any guidance issued under Section 409A. Such amendments may be made without the approval of any US Participant.


Encana Corporation    Page 22

Employee Stock Appreciation Rights Plan

(With amendments as of February 22, 2016)

  

 

(c) Notwithstanding Section 10.4(a), no amendment may be made to the Plan, a Grant Agreement, or the terms of any SAR granted to a Canadian Participant which would result in a material risk (as determined by the Corporation or its advisors, in their sole discretion) that the Plan or any SARs granted thereunder would constitute a “salary deferral arrangement” within the meaning of subsection 248(1) of the Income Tax Act (Canada), or any successor provision thereto.

 

10.5 Administration Costs

Except as otherwise provided herein, the Corporation will be responsible for all costs relating to the administration of the Plan and any SARs granted thereunder.

 

10.6 Assignment

No SAR or any other rights conferred by a SAR or the Plan or a Grant Agreement is assignable, negotiable or otherwise transferable by any Participant other than by will or the laws of descent and distribution. All SARs are exercisable only during the Participant’s lifetime and only by the Participant, except in the event of the Participant’s death or incapacity, in which case the SAR may be exercised by the Participant’s duly appointed legal guardian or legal personal representative.

 

10.7 Unfunded Obligation

The Plan shall be an unfunded obligation of the Corporation and its Affiliates. Neither the establishment of the Plan nor the grant of any SARs or the setting aside of any funds by the Corporation or an Affiliate, as the case may be, (if, either in their sole discretion, choose to do so) shall be deemed to create a trust. Legal and equitable title to any funds set aside for the purposes of the Plan shall remain in the Corporation or the Affiliate, as the case may be, and no Participant shall have any security or other interest in such funds. Any funds so set aside shall remain subject to the claims of creditors of the Corporation or the Affiliate, as the case may be, present or future. Amounts payable to any Participant under the Plan shall be a general, unsecured obligation of the Corporation or Affiliate, as the case may be. The right of the Participant to receive payment pursuant to the Plan shall be no greater than the right of other unsecured creditors of the Corporation or Affiliate, as the case may be.

 

10.8 No Representation as to Price

Neither the Corporation nor any Affiliate makes any representation or gives any warranty as to the Fair Market Value of the Shares and shall not be held liable for any fluctuation in the value of the Shares either before or after the exercise of any SAR or other right conferred under the Plan.

 

10.9 Compliance with Section 409A

Notwithstanding any provision of the Plan to the contrary, it is intended that the provisions of the Plan comply with Section 409A, and all provisions of the Plan shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. Each US Participant is solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on or for the account of such US Participant in connection with the Plan or any other Plan maintained by the Corporation or an Affiliate (including any taxes and


Encana Corporation    Page 23

Employee Stock Appreciation Rights Plan

(With amendments as of February 22, 2016)

  

 

penalties under Section 409A), and neither the Corporation nor any Affiliate shall have any obligation to indemnify or otherwise hold such US Participant (or any beneficiary) harmless from any or all of such taxes or penalties.

* * * *

Exhibit 10.9

ENCANA CORPORATION

STOCK APPRECIATION RIGHTS PLAN

[EXECUTIVE] 20      STOCK APPRECIATION RIGHTS GRANT AGREEMENT

 

Participant:    ###PARTICIPANT_NAME###
Grant Name:    ###GRANT_NAME###
Grant Date:    ###GRANT_DATE###
Expiry Date:    ###EXPIRY_DATE###, subject to the terms and conditions contained herein
Grant Price:    USD###GRANT_PRICE###
Total Performance Options with SARs:    ###TOTAL_AWARDS###

THIS STOCK APPRECIATION RIGHTS GRANT AGREEMENT , including Schedule “A”” and “B” hereto (collectively, this “ Agreement ”) is made between Encana Corporation (the “ Corporation ”) and the Participant listed above, an eligible employee of the Corporation or one of its Affiliates (“ Employee ” or “ You ”).

WHEREAS the Corporation has established the Encana Corporation Employee Stock Appreciation Rights Plan (the “ Plan ”) for eligible employees of the Corporation and its Affiliates;

AND WHEREAS the Board of Directors (the “ Board ”) of the Corporation has authorized the granting to You of certain Stock Appreciation Rights (“ SARs ”), in accordance with and subject to the terms and conditions of the Plan and this Agreement;

AND WHEREAS the Plan was amended effective February 23, 2015 (the “ Effective Date ”) to provide for (unless otherwise specified by the Committee) a new SAR Period not to exceed seven (7) years from the Date of Grant of the SAR (the “ Extended Term ”), in respect of each SAR granted on or following the Effective Date;

AND WHEREAS with the Extended Term does not apply to or amend the Term or Expiry Date of a SAR granted to the Participant prior to the Effective Date, the SAR Period of which shall remain a period not exceeding five (5) years from Date of Grant of such SAR;

NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of other good and valuable consideration including, among other things, the employment services rendered by You to the Corporation or its Affiliate, the receipt and sufficiency of which is hereby acknowledged by the parties, it is agreed by and between the parties hereto as follows:

 

1. The terms and conditions of the Plan are hereby incorporated by reference as terms and conditions of this Agreement and all capitalized terms used herein, unless expressly defined in a different manner, have the meanings set out in the Plan. “Grant Date” as referred to above means the “Date of Grant” as defined and used in the Plan and in this Agreement.

 

2. Participation in the Plan is voluntary on Your part.

 

3. You hereby confirm that You have received and reviewed a copy of the Plan and agree to be bound by it.

 

4. Effective as of the Date of Grant, the Corporation hereby grants to You, in accordance with and subject to the terms and conditions of the Plan and this Agreement, SARs in such number and such type as set out above. SARs granted to You hereunder are hereby classified as “Time-Based SARs” and are hereinafter referred to as “Time-Based SARs” for purposes of this Agreement and the Plan. The conditions of vesting of such Time-Based SARs are as set forth in the Plan, as further clarified in Schedule “A” attached hereto.


5. You hereby acknowledge that the Extended Term applies only to a grant of SARs made on or following the Effective Date and does not apply to or impact the Expiry Date or Terms of SAR grants made to You prior to such date.

 

6. The determination by the Board or the Committee of any question which may arise as to the interpretation or implementation of the Plan or any of Time-Based SAR granted hereunder shall be final and binding on You and all other persons claiming or deriving rights through You.

 

7. The Corporation’s grant of any Time-Based SARs hereunder or its obligation to make any payments under the Plan is subject to compliance with Applicable Law. As a condition of participating in the Plan, You agree to comply with all such Applicable Law and to furnish to the Corporation or its Affiliate (as applicable) all information and undertakings as may be required to permit such compliance with Applicable Law.

 

8. The Plan contains specific provisions including, without limitation, in Article 5, governing Your rights upon Termination of Employment, Death, Retirement, Disability, and Leave of Absence.

 

9. Upon the occurrence of a Termination of Employment of You, You shall only be entitled to exercise any Vested SARs during the Termination Exercise Period, but only to the extent that such Vested SARs have become Vested SARs pursuant to Section 4.2 of the Plan on or prior to the Date Employment Ceases. For greater certainty, notwithstanding Section 4.2 of the Plan, SARs which do not become Vested SARs on or prior to the Date Employment Ceases shall not thereafter become Vested SARs.

 

10. Neither the Plan nor any action taken thereunder shall interfere with the right of Your employer to terminate Your employment at any time. Neither shall any period of notice, if any, nor any payment in lieu thereof, upon termination of employment be considered as extending the period of employment for the purposes of the Plan.

 

11. Subject to Section 10.4 of the Plan, this Agreement and the Plan may be amended or terminated at any time by the Committee in whole or in part.

 

12. This Agreement and the rights of all parties and the construction of each provision hereof and of the Plan and the Time-Based SARs granted hereunder shall be construed according to the laws of the Province of Alberta and the federal laws of Canada, as applicable herein. In the event of a dispute, You agree to submit to the jurisdiction of the Alberta courts.

 

13.

Notwithstanding any provision of the Plan or this Agreement to the contrary, where applicable, it is intended that the provisions of the Plan and this Agreement comply with Section 409A, and all provisions of the Plan shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. If You are an US Participant, You are solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed upon You or for Your account in connection with the Plan or any other Plan maintained by the Corporation or an Affiliate (including any taxes and penalties under Section 409A), and neither the Corporation nor any Affiliate shall have any obligation to indemnify or otherwise hold You (or any beneficiary) harmless from any or all of such taxes or penalties. In addition, should any provision of the Plan or this Agreement be subject to Section 409A, You agree that the Date Employment Ceases and the Date of Retirement shall be determined to mean a “separation from service” as defined in Section 409A whenever necessary to ensure compliance therewith for any payment or settlement of a benefit conferred under the Plan or this Agreement that is subject to Section 409A, and, for such purposes, shall be determined based upon a reduction in the bona fide level of services performed to a level equal to twenty percent (20%) or less of the average level of services

 

- 2 -


  performed by You during the immediately preceding 36-month period. Any distribution or settlement of a benefit conferred under the Plan or this Agreement following the Date Employment Ceases or the Date of Retirement that would be subject to Section 409A as a distribution following a separation from service of a “specified employee” as defined under Section 409A, shall occur no earlier than the expiration of the six-month period following such Date Employment Ceases or Date of Retirement.

 

14. You hereby consent to the exchange of information and documents between Yourself and the Corporation including, without limitation electronically over the Internet or by e-mail, if to You at the e-mail address you have most recently provided to the Corporation, and that any such information and documents sent or received in electronic form shall be the equivalent of original written paper documents and that your electronic acceptance of same shall constitute your written acceptance on consent thereto. You also hereby consent to the collection, use and disclosure of Your personal information by and between the Corporation and its Affiliates and, as necessary, by and with any service provider(s) as may be retained by the Corporation or its Affiliates from time to time, as may be reasonably necessary for purposes of administering and managing Your SAR grant, or as required by Applicable Law.

IN WITNESS WHEREOF this Agreement has been executed effective as of the Date of Grant.

 

ENCANA CORPORATION
Mike Williams
Executive Vice-President, Corporate Services

 

- 3 -


Schedule “A”

The Time-Based SARs granted to You hereunder will become Vested SARs only upon satisfaction of the vesting conditions in Section 4.2 of the Plan. For the purposes of this grant, the following terms specified in Section 4.2 of the Plan shall apply:

 

  (i) 30 percent of the Time-Based SARs on the first Anniversary Date;

 

  (ii) an additional 30 percent of the Time-Based SARs on the second Anniversary Date; and

 

  (iii) an additional 40 percent of the Time-Based SARs on the third Anniversary Date.


Schedule “B”

Incentive Compensation Clawback Policy

By resolution of the Board of Directors (the “ Board ”) of Encana Corporation (“ Encana ” or the “ Corporation ”), this Policy is effective as of this 22 nd day of October, 2012 (the “ Effective Date ”).

This Policy applies to the President & Chief Executive Officer and each Executive-Vice President of the Corporation and any individual who serves in either such capacity on or following the Effective Date (collectively, the “ Executive ”). References in this Policy to the “ Corporation ” include, where applicable, any affiliate thereof.

This Policy has been adopted to enhance the Corporation’s alignment with best practices in respect of risk management and executive compensation and shall be, at all times, subject to and interpreted in a manner consistent with applicable laws or the rules of any applicable stock exchange (collectively, “ Applicable Rules ”).

This Policy applies to “Incentive-Based Compensation” which, for the purposes of this Policy, means compensation relating to the achievement of performance goals or similar conditions, excluding salary, perquisites, benefits and pension entitlements, and including, without limitation, any award or grant of or any eligibility, entitlement or gain of, an Executive under the Corporation’s: (i) High Performance Results Plan, or any other short-term incentive plan; or (ii) Long-Term Incentive (“ LTI ”) program including, without limitation, Employee Stock Option Plan, Employee Stock Appreciation Rights Plan, Performance Share Unit Plan, Restricted Share Unit Plan and Deferred Share Unit Plan, as each may be amended from time to time (including any time-based grants under any such plans). For greater clarity, this Policy shall not apply to any Incentive-Based Compensation awarded, granted or paid to an Executive prior to the Effective Date.

Where:

 

    the Corporation is required to prepare an accounting restatement due to its material non-compliance with any financial reporting requirement under applicable securities laws (the “Restatement”), (the date upon which the Corporation is required to prepare such Restatement is hereinafter the “ Restatement Date ”);

 

    the Executive received Incentive-Based Compensation referable to the financial years subject to the Restatement in excess of what the Executive would have been paid under the Restatement (the “ Overcompensation Amount ”); and

 

    the Executive engaged in gross negligence, intentional misconduct or fraud which caused or significantly contributed to the Corporation’s material non-compliance with applicable securities laws which resulted in the requirement for the Restatement;

the Board shall be entitled:

 

    where and to the extent the Overcompensation Amount has been previously paid, transferred or otherwise made available to the Executive, to require the Executive, by written demand, to reimburse the Corporation for the Overcompensation Amount; and

 

   

where all or a portion of the Overcompensation Amount has not been paid, transferred or otherwise made available to the Executive, the right of the Executive to be so paid or have such benefit transferred or otherwise made available to him or her shall, to the extent required to reimburse the Corporation for such Overcompensation Amount, immediately

 

- 2 -


 

terminate and be forfeited by the Executive and where required, cancelled by the Corporation to such extent and upon such date as may be specified by the Board; and

 

    to the extent the Overcompensation Amount is not immediately recovered upon demand from the Executive, whether via direct reimbursement, forfeiture and/or cancellation, to require a sufficient quantity or value of any compensation owing by the Corporation to the Executive including, without limitation, any unvested or unexercised awards under the LTIs (the “ Outstanding LTIs ”), be immediately withheld and/or irrevocably cancelled by the Corporation to compensate for (or set off the value of same against) the Overcompensation Amount or any unrecovered portion thereof, and to bring any other actions against the Executive which the Board may deem necessary to recover the Overcompensation Amount.

The period of time during which the Corporation shall be entitled to seek recovery of the Overcompensation Amount from the Executive shall be three (3) years from the Restatement Date. Recoupment of Overcompensation Amounts under this Policy shall be initiated by the Corporation at the request of the Board, and all amounts recoverable or payable hereunder shall be paid to the Corporation or as directed by the Board.

If Applicable Rules require the Corporation to adopt a policy or provisions relating to the recoupment or recovery of incentive-based or other compensation based on restated financial statements which are inconsistent with or materially differ from this Policy and the Board adopts such policy or provisions to comply with Applicable Rules (the “ New Policy ”), such New Policy shall replace and supersede this Policy and shall apply to Incentive-Based Compensation granted or awarded to the Executive following the effective date of the New Policy. Subject to Applicable Rules, this Policy shall continue to apply to Incentive-Based Compensation granted or awarded to the Executive prior to the effective date of the New Policy. This Policy may be terminated at any time by the Board.

 

- 3 -

Exhibit 10.10

 

LOGO

PERFORMANCE SHARE UNIT PLAN FOR EMPLOYEES

OF ENCANA CORPORATION

Amended and restated with effect from January 1, 2010,

and reflective with amendments made as of July 20, 2010, February 24, 2015,

and February 22, 2016


TABLE OF CONTENTS

 

Section

       Page  
1.  

PREAMBLE AND DEFINITIONS

     1   
2.  

CONSTRUCTION AND INTERPRETATION

     8   
3.  

EFFECTIVE DATE AND EMPLOYMENT RIGHTS

     8   
4.  

PSU GRANTS AND PERFORMANCE PERIODS

     9   
5.  

ACCOUNTS, DIVIDEND EQUIVALENTS AND REORGANIZATION

     10   
6.  

OPTIONAL FUNDING OF PSU AWARDS

     11   
7.  

ELIGIBLE PSUs AND PERFORMANCE CRITERIA

     11   
8.  

VESTING AND PAYMENT OF PSU AWARDS

     12   
9.  

CURRENCY

     16   
10.  

SHAREHOLDER RIGHTS

     17   
11.  

ADMINISTRATION

     17   
12.  

ASSIGNMENT

     19   


PERFORMANCE SHARE UNIT PLAN FOR EMPLOYEES

OF ENCANA CORPORATION

(Amended and restated with effect from January 1, 2010,

and reflective with amendments made as of July 20, 2010, February 24, 2015,

and February 22, 2016)

 

1. PREAMBLE AND DEFINITIONS

 

  1.1 Title .

The Plan described in this document shall be called the “Performance Share Unit Plan for Employees of Encana Corporation”.

 

  1.2 Purpose of the Plan .

The purposes of the Plan are:

 

  (a) to promote an alignment of interests between employees and shareholders of the Corporation;

 

  (b) to associate a portion of eligible employees’ compensation with the performance of the Corporation over the medium to longer term; and

 

  (c) to attract and retain employees with the knowledge, experience and expertise required by the Corporation.

 

  1.3 Definitions .

 

  1.3.1 Achieved Performance Criteria ” means the Performance Criteria which have been satisfied, as, when and to the extent determined by the Committee in respect of any particular Performance Period, and which shall be published on the Corporation’s internal employee website or otherwise communicated in writing to the employees (or, where necessary, to a Participant who has retired, or to the legal representative of a Participant who is deceased) of the Corporation and its Affiliates.

 

  1.3.2 Affiliate ” means any corporation, partnership or other entity in which the Corporation, directly or indirectly, has a majority ownership interest.

 

  1.3.3 Anniversary Date ” means, in respect of each PSU grant, each anniversary of the Grant Date.

 

  1.3.4 Applicable Law ” means any applicable provision of law, domestic or foreign, including, without limitation, applicable securities legislation, together with all regulations, rules, policy statements, rulings, notices, orders or other instruments promulgated thereunder, and Stock Exchange Rules.

 

  1.3.5 Blackout Period ” means a trading blackout period imposed by the Corporation under the Corporation’s Securities Trading and Insider Reporting Policy (as amended, supplemented or replaced by the Corporation from time to time);


Performance Share Unit Plan for Employees

of Encana Corporation

(With amendments as of February 24, 2015 and February 22, 2016)

   Page 2

 

  1.3.6 Board ” means the Board of Directors of the Corporation.

 

  1.3.7 Business Day ” means any day other than a Saturday or a Sunday, a statutory holiday in Alberta or any day on which the principal chartered banks located in Calgary are not open for business during normal banking hours.

 

  1.3.8 Change in Control ” a “Change in Control” shall be deemed to have occurred for purposes of this Plan if:

 

  (a) any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity, or any persons acting jointly or in concert with the foregoing, is or becomes the beneficial owner, directly or indirectly of, securities of the Corporation representing more than 30% of the combined voting power of the Corporation’s then outstanding securities entitled to vote in the election of the directors of the Corporation;

 

  (b) the Corporation shall have disposed of (A) all or substantially all of its assets, such that shareholder approval was required or should have been required to be obtained under the Canada Business Corporations Act , or (B) assets in any 12 month period representing 50% or more of the total assets of the Corporation, the total assets being determined as of the date of the audited financial statements of the Corporation then most recently published;

 

  (c) pursuant to a single election or appointment or a series of elections or appointments over any period from and after the effective date of this Plan (A) those individuals who at the effective date of this Plan constituted the Board, together with (B) any new or additional director or directors whose nomination for election by the Corporation’s shareholders, or whose appointment to the Board by the Board, has been approved by at least 75% of the votes cast by all of the directors then still in office, who either were directors at the effective date of this Plan or whose appointment or nomination for election was previously so approved, cease for any reason to constitute a majority of the Board; or

 

  (d) the Board, by resolution duly adopted by the affirmative vote of a simple majority of the votes cast by the Board, determines that for purposes of this Plan, a Change in Control of the Corporation has occurred.

Securities beneficially owned or controlled or directed by an employee plan or related trust sponsored or maintained by the Corporation or its Affiliates shall not be taken into account in determining whether the threshold percentage in Section 1.3.7(a) above is exceeded.

For the purposes of this Section 1.3.7:

 

  (a) the term “acting jointly or in concert” shall be interpreted in accordance with Section 159 of the Securities Act (Alberta), as amended; and


Performance Share Unit Plan for Employees

of Encana Corporation

(With amendments as of February 24, 2015 and February 22, 2016)

   Page 3

 

  (b) the term “beneficial ownership” shall be interpreted in accordance with Sections 5 and 6 of the Securities Act (Alberta) and “beneficial owner” shall have a corresponding meaning, except that for purposes of the Plan, options and convertible securities granted by the Corporation to employees, officers or directors shall not be included in determining beneficial ownership or beneficial owner.

For greater certainty, and except as otherwise provided in Section 1.3.7(b) or Section 1.3.7(d), the sale, disposition or other divestiture of an Affiliate, in whole or in part, shall not constitute a Change in Control for the purposes of this Plan.

 

  1.3.9 Code ” means the United States Internal Revenue Code , as amended from time to time.

 

  1.3.10 Committee ” means the Human Resources and Compensation Committee of the Board or such other committee of the Board, as constituted from time to time, which may be appointed by the Board to, among other things, interpret, administer and implement the Plan, including any corresponding Grant Agreement. Any reference in this Plan or corresponding Grant Agreement to action by the Committee means action by or under the authority of: (i) the Committee or, (ii) if no such Committee has been designated, or such authority has been delegated to the Board, the Board.

 

  1.3.11 Committee Meeting Date ” means the date of the meeting of the Committee held to review matters related to the PSUs, including the Committee’s determination of whether and, where applicable, the degree to which the Performance Criteria for a particular Performance Period have been satisfied and constitute Achieved Performance Criteria, which meeting shall occur at least once annually and by no later than June 1 of the year immediately following the applicable Performance Period.

 

  1.3.12 Corporation ” means Encana Corporation and any successor corporation whether by amalgamation, merger or otherwise.

 

  1.3.13 Corporation Policies” means, at a particular time, the applicable policies, plans and practices of the Corporation or an Affiliate, as applicable, which employs the Participant, as published on the Corporation’s or an Affiliate’s, as applicable, internal website or as otherwise communicated to employees of the Corporation or an Affiliate, as applicable from time to time.

 

  1.3.14 Date Employment Ceases ” means:

 

  (i) in the case of voluntary Termination of Employment initiated by the Participant, the last date the Participant is, for the purposes of receiving his regular salary, on the payroll of the Corporation or an Affiliate;

 

  (ii)

in the case of involuntary Termination of Employment by the Corporation or an Affiliate for cause (as determined by the


Performance Share Unit Plan for Employees

of Encana Corporation

(With amendments as of February 24, 2015 and February 22, 2016)

   Page 4

 

  Corporation or the Affiliate, as applicable), the date written notification of dismissal from employment is delivered to the Participant;

 

  (iii) in the case of involuntary Termination of Employment by the Corporation or an Affiliate other than for cause (as determined by the Corporation or the Affiliate, as applicable) the date identified in the written notification of termination of employment delivered to the Participant as the “Termination Date” or “Departure Date” and, where both dates are so referred to, the earlier thereof, and, where such date is not identified in the written notification, the date written notification of dismissal from employment is delivered to the Participant;

 

  (iv) in the case where the Participant is employed by an Affiliate and for any reason including, without limitation, by reason of the sale, disposition or other divestiture thereof, in whole or in part, such employer ceases to be an Affiliate of the Corporation, the effective date (in the case of a sale, disposition or other divestiture, the closing date of such transaction or series of transactions, as determined by the Corporation) upon which the Participant’s employer ceases to be an Affiliate;

but, for greater certainty, shall not include the date the Participant ceases to be an employee of the Corporation or an Affiliate upon the Participant’s death or Retirement, or the date the Participant commences a Period of Absence or an Unpaid Leave of Absence in accordance with the provisions hereof.

 

  1.3.15 Date of Retirement ” means the last day the Participant is, for the purposes of receiving his regular salary, on the payroll of the Corporation or an Affiliate immediately prior to the date the Participant commences Retirement.

 

  1.3.16 Disability ” means the Participant’s physical or mental incapacity that prevents the Participant from substantially fulfilling his duties and responsibilities on behalf of the Corporation or an Affiliate, and in respect of which the Participant commences receiving disability benefits under the Corporation’s or an Affiliate’s short-term or long-term disability plan, as applicable, in respect of such incapacity.

 

  1.3.17 Dividend Equivalent PSU ” has the meaning set out in Section 5.2.

 

  1.3.18 Eligible PSUs ” means, in respect of a grant of PSUs under this Plan, those PSUs that are determined by the Committee as being eligible to vest on the Vesting Date pursuant to Sections 7 and 8, based upon the Corporation’s achievement of the Performance Criteria in respect of a particular Performance Period, as set out in the applicable, Grant Agreement.


Performance Share Unit Plan for Employees

of Encana Corporation

(With amendments as of February 24, 2015 and February 22, 2016)

   Page 5

 

  1.3.19 Eligible PSU Amount ” means, where applicable, the notional value of the Eligible PSUs (including any related Dividend Equivalent PSUs), as determined by the Committee, credited by the Corporation to the Participant’s PSU Account in respect of a particular Performance Period in accordance with Section 7, which amount shall be used to determine the value of any Vested PSUs relating to such Performance Period which may vest and become payable to the Participant on the Vesting Date in accordance with Section 8.

 

  1.3.20 Family Leave ” means, a period during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered to be on family leave, and does not provide employment services to the Corporation or an Affiliate.

 

  1.3.21 Grant Agreement ” means an agreement between the Corporation and the Participant under which a PSU is granted, as contemplated by Section 4.1, together with such schedules, amendments, deletions or changes thereto as are permitted under the Plan, subject to the terms and conditions of such Grant Agreement and the Plan.

 

  1.3.22 Grant Date ” means the effective date of a grant of PSUs to a Participant by the Corporation or an Affiliate, as applicable, as stated in the Participant’s applicable Grant Agreement. Where the Corporation determines to grant any PSUs on a date which is within a Blackout Period or where, for any reason: (i) the grant of PSUs falls on a day that is within a Blackout Period; or (ii) the Market Value of the grant of PSUs would be calculated using a Trading Day that is within a Blackout Period, then the Grant Date of any such PSUs shall automatically occur and be effective on the sixth Trading Day immediately following the end of such Blackout Period to permit the Market Value of such PSUs to be determined based on Trading Days which occur immediately following the end of any such Blackout Period.

 

  1.3.23 Market Value ” means, with respect to any particular date, the volume-weighted average (rounded to two decimal places) of the trading price per Share on the applicable Stock Exchange during the immediately preceding five (5) Trading Day period prior to that particular date.

 

  1.3.24 Maximum Performance Criteria ” means, in respect of each PSU grant under this Plan, the maximum Performance Criteria applicable to a Performance Period, as determined by the Committee, and as set forth in the applicable Grant Agreement.

 

  1.3.25 Median Performance Criteria means, in respect of each PSU grant under this Plan, the median Performance Criteria applicable to a Performance Period, as determined by the Committee, and as set forth in the applicable Grant Agreement.

 

  1.3.26

Military Leave ” means a period during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered to


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  be on a military leave, and does not provide employment services to the Corporation or an Affiliate.

 

  1.3.27 Minimum Performance Criteria ” means, in respect of each PSU grant under this Plan, the minimum Performance Criteria applicable to a Performance Period, as determined by the Committee, and as set forth in the applicable Grant Agreement.

 

  1.3.28 Paid Leave of Absence ” means in respect of a Participant, a period of time during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered to be on an approved leave of absence and continues to receive his salary from, but does not provide employment services to, the Corporation or an Affiliate.

 

  1.3.29 Participant ” means such employee of the Corporation or an Affiliate as the Committee may designate from time to time as eligible to participate in the Plan.

 

  1.3.30 Performance Criteria ” means, in respect of a PSU, the performance criteria as determined by the Committee as being applicable to a grant of a PSU under the Plan, and as set forth in the applicable Grant Agreement.

 

  1.3.31 Performance Period ” means, in respect of a grant of a PSU, the particular designated period of time in respect of which the Performance Criteria is assessed and may be determined by the Committee to be satisfied in order for such PSU to become an Eligible PSU pursuant to Section 7 and a Vested PSU pursuant to Section 8, and as set forth in the applicable Grant Agreement.

 

  1.3.32 Period of Absence ” means, with respect to a Participant, a period of time throughout which the Participant is on a Family Leave, Military Leave, Paid Leave of Absence, an unpaid leave of absence of 31 days or less approved by the Corporation or Affiliate, as applicable, or is experiencing a Disability, but does not include a period of time throughout which the Participant is on an Unpaid Leave of Absence.

 

  1.3.33 Plan ” means this amended and restated Performance Share Unit Plan for Employees of Encana Corporation, including any schedules or appendices hereto, as amended from time to time.

 

  1.3.34 PSU ” means a performance share unit granted to a Participant under the Plan that is represented by a bookkeeping entry on the books of the Corporation or an Affiliate, the value of which shall be determined in accordance with the Plan and the applicable Grant Agreement.

 

  1.3.35 PSU Account ” has the meaning set out in Section 5.1.

 

  1.3.36 Retirement ” means the early or normal retirement of the Participant from employment with the Corporation or an Affiliate, as applicable, in accordance with the Corporation Policies.


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  1.3.37 Section 409A Amount ” means any cash or Shares provided or to be provided pursuant to the Plan or a Grant Agreement that: (a) are provided or are to be provided to a U.S. Participant; and (b) constitute a deferral of compensation subject to section 409A of the Code.

 

  1.3.38 Share ” means a common share in the capital of the Corporation and such other share as may be substituted for it as a result of amendments to the articles of the Corporation, arrangement, re-organization or otherwise, including any rights that form a part of the common share or substituted share.

 

  1.3.39 Stock Exchange ” means, in respect of a PSU, the Toronto Stock Exchange or the New York Stock Exchange as specified in the Participant’s respective Grant Agreement relating to such PSU or, if the Shares are not listed on the Toronto Stock Exchange or the New York Stock Exchange, as applicable, such other stock exchange on which the Shares are listed, or if the Shares are not listed on any stock exchange, then on the over-the-counter market.

 

  1.3.40 Stock Exchange Rules ” means, in respect of a PSU, the applicable rules of the particular Stock Exchange pertaining to such PSU, as specified in the Participant’s Grant Agreement, upon which the Shares are listed.

 

  1.3.41 Termination of Employment ” means an event by which the Participant ceases to be an employee of the Corporation or an Affiliate, as applicable, but, for greater certainty, shall not include an event whereby the Participant ceases to be an employee of the Corporation or an Affiliate, as applicable, upon the Participant’s death or Retirement or where the Participant commences a Period of Absence or an Unpaid Leave of Absence in accordance with the provisions hereof.

 

  1.3.42 Trading Day ” means any date on which the applicable Stock Exchange is open for the trading of Shares and on which Shares are actually traded.

 

  1.3.43 Trust Fund ” means one or more trust funds, as specified by the Committee, as may be established by the Corporation or an Affiliate, as applicable, for the purpose of funding awards of PSUs granted to Participants pursuant to the Plan.

 

  1.3.44 Trustee ” means such person or persons who is or are independent from and not affiliated with the Corporation or an Affiliate as may from time to time be appointed by the Corporation as trustee of the Trust Fund(s).

 

  1.3.45

Unpaid Leave of Absence ” means in respect of a Participant, a period of time during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered by the Corporation or an Affiliate, as applicable, to be on an approved leave of absence and does not continue to receive his salary from, or provide employment services to, the Corporation or an Affiliate, as applicable, which, for the purposes of the Plan, shall be deemed to commence on the 32 nd day following the day on


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  which the Participant commences such approved, unpaid leave, as communicated in writing to the Participant by the Corporation or an Affiliate, as applicable, in accordance with the Corporation Policies or Applicable Law.

 

  1.3.46 U.S. Participant ” means a Participant who is a citizen or permanent resident of the United States for purposes of the Code or a Participant for whom compensation subject to deferral under this Plan would otherwise be subject to United States federal income taxation under the Code.

 

  1.3.47 Vested PSUs ” has the meaning set out in Section 8.1.

 

  1.3.48 Vesting Date ” means, in respect of a grant of PSUs, the date specified in the Participant’s applicable Grant Agreement upon which the Participant’s Eligible PSUs shall vest and become payable in accordance with Section 8, subject to the terms and conditions of the Plan and the applicable Grant Agreement.

 

2. CONSTRUCTION AND INTERPRETATION

 

  2.1 Gender, Singular, Plural . In the Plan, references to the masculine include the feminine; and references to the singular shall include the plural and vice versa, as the context shall require.

 

  2.2 Governing Law . The Plan shall be governed and interpreted in accordance with the laws of the Province of Alberta and any actions, proceedings or claims pertaining in any manner or respect to the Plan, including without limitation, an applicable Grant Agreement or a PSU grant in respect thereof, shall be commenced in the courts of the Province of Alberta.

 

  2.3 Severability . If any provision or part of the Plan is determined to be void or unenforceable in whole or in part, such determination shall not affect the validity or enforcement of any other provision or part thereof.

 

  2.4 Headings, Sections . Headings wherever used herein are for reference purposes only and do not limit or extend the meaning of the provisions herein contained. A reference to a section or schedule shall, except where expressly stated otherwise, mean a section or schedule of the Plan, as applicable.

 

3. EFFECTIVE DATE AND EMPLOYMENT RIGHTS

 

  3.1 Effective Date . The Corporation is amending and restating the Plan effective January 1, 2010.

 

  3.2

No Employment Rights . Nothing contained in the Plan shall be deemed to give any person the right to be retained as an employee or an officer of the Corporation or of an Affiliate. For greater certainty, a period of notice, if any, (whether pursuant to statute or common law) or payment in lieu thereof, arising upon or attributed to a Termination of Employment, whether wrongful or


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  otherwise, shall not be considered as extending the period of employment or the active service of a Participant with the Corporation or an Affiliate beyond the Date Employment Ceases.

 

4. PSU GRANTS AND PERFORMANCE PERIODS

 

  4.1 Annual Grant of PSUs. Each Participant may receive in respect of a calendar year, a grant of PSUs in such number and subject to such Performance Criteria, Performance Period(s) and other terms and conditions as the Committee may specify. Each PSU grant to a Participant shall be governed by and subject to the terms and conditions of this Plan and the applicable Grant Agreement.

 

  4.2 Grant Agreement. Each PSU grant and each Participant’s participation in the Plan shall be evidenced by a Grant Agreement between the Corporation and the Participant in the form approved by the Committee. The Grant Agreement shall specify, at the time PSUs are granted to the Participant, the applicable Performance Criteria, the basis upon which such PSUs will become Eligible PSUs and valued, whether such PSUs (and Dividend Equivalent PSUs relating thereto) are, upon becoming Vested PSUs pursuant to Section 8, to be payable to the Participant on the Vesting Date in Canadian currency or United States currency, and the applicable Stock Exchange to be used to determine the Market Value of such PSUs, any other Share price or other methodology used to determine the value of such PSUs, and the applicable Vesting Date.

 

  4.3 PSUs . Subject to the terms and conditions of the Plan, and the applicable Grant Agreement, each PSU will give a Participant the right to receive a payment in cash or in Shares, as determined by the Committee, in an amount and on such date or dates, including the Vesting Date, as may be determined in accordance with the terms of the Plan and the applicable Grant Agreement. For greater certainty, a Participant shall have no right to receive a cash payment or Shares with respect to any PSUs that do not become both Eligible PSUs pursuant to Section 7 and Vested PSUs pursuant to Section 8, as applicable. Further, unless otherwise expressly authorized by this Plan (including, without limitation, Section 8) or the applicable Grant Agreement, a Participant shall have no right to receive a cash payment or Shares if the Participant is not actively employed by the Corporation or an Affiliate, as applicable, on the Vesting Date.

 

  4.4 Performance Period . The Committee shall specify the Performance Period or Performance Periods applicable to each PSU grant under Section 4.1, the first day of which, unless otherwise provided in a Grant Agreement, shall commence with the calendar year in which the Grant Date occurs.

 

  4.5 Other Terms and Conditions . Subject to the terms of the Plan, the Committee or the Board may determine other terms or conditions of, or take actions relating to, any PSUs, or any grant thereof, including:

 

  (a) any additional conditions with respect to the vesting of PSUs, in whole or in part, or the payment of cash or provision of Shares under the Plan;

 

  (b) restrictions on the resale of Shares, including escrow arrangements;


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  (c) exercising such discretion as may be set out in the Plan or a particular Grant Agreement; and

 

  (d) any other terms and conditions the Committee may, in its discretion, determine,

which other terms or conditions shall be set out in the Grant Agreement.

Except as otherwise provided in Section 11.8, the Committee may, in its discretion, after the Grant Date of a PSU, waive any term or condition in respect of such PSU or determine that it has been satisfied.

 

  4.6 Payment Date. For greater certainty, and notwithstanding any other provision of the Plan or an applicable Grant Agreement, no term or condition imposed under this Plan or a Grant Agreement may have the effect of causing payment of the value of a PSU to a Participant, or his legal representative, to occur after December 31 of the third calendar year following the calendar year in which the Grant Date occurs.

 

  4.7 No Certificates . No share or other certificates shall be issued with respect to PSUs.

 

5. ACCOUNTS, DIVIDEND EQUIVALENTS AND REORGANIZATION

 

  5.1 PSU Account . An account, called a “PSU Account”, shall be maintained by the Corporation for each Participant and will be credited with such notional grants of PSUs as may be received by a Participant from time to time pursuant to Sections 4.1 and 5.2 and, where applicable, with the Eligible PSU Amount relating to a particular Performance Period as may be determined pursuant to Section 7. For clarity, unless otherwise expressly authorized by this Plan (including, without limitation, Section 8) or the applicable Grant Agreement, the Participant shall have no entitlement or right to any PSUs granted, credited to or recorded in the Participant’s PSU Account, or to any Eligible PSU Amount credited to or recorded in such PSU Account, whether expressed in PSUs or dollar value form, prior to the Vesting Date if the Participant is not actively employed by the Corporation or an Affiliate, as applicable, on the Vesting Date.

 

  5.2 Dividend Equivalent PSUs . In the event cash dividends are paid by the Corporation on the Shares, additional PSUs may be credited to the Participant’s PSU Account in accordance with this Section 5.2 (“Dividend Equivalent PSUs”). The number of such Dividend Equivalent PSUs (including fractional PSUs) and the date upon which such Dividend Equivalent PSUs are credited to the Participant’s PSU Account shall be determined by the Corporation in accordance with the applicable Grant Agreement. Except where provided otherwise in a Grant Agreement, Dividend Equivalent PSUs shall vest and be paid to the Participant at the same time as the Eligible PSUs to which they relate.

 

  5.3

Adjustments . In the event of any stock dividend, stock split, combination or exchange of shares, capital reorganization, consolidation, spin-off or other distribution (other than normal cash dividends) of Corporation assets to


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  shareholders, or any other similar changes affecting the Shares, proportionate adjustments to reflect such change or changes may be made with respect to the number of PSUs outstanding under the Plan, or securities into which the Shares are changed or are convertible or exchangeable may be substituted for Shares under this Plan, on a basis proportionate to the number of PSUs in the Participant’s PSU Account on some other appropriate basis, all as determined by the Board, in its discretion.

 

6. OPTIONAL FUNDING OF PSU AWARDS

 

  6.1 Contributions to Trust Fund . Except as otherwise provided in Section 11.8, the Corporation may, in its sole discretion, from time to time, on its own behalf and on behalf of such of its Affiliates as employ Participants, make contributions to a Trust Fund in such amounts and at such times as may be specified by the Committee or the Board for the purpose of funding, in whole or in part, awards of PSUs which become payable to Participants pursuant to the Plan. For clarity, this Section 6 does not obligate the Corporation or any Affiliate to create a Trust Fund, nor to make contributions to a Trust Fund in any amounts or at all nor does it require the funding in whole or in part of any award of PSUs granted under this Plan.

 

  6.2 Share Purchases . Where applicable, any purchases of Shares by the Trustee or otherwise pursuant to the Plan shall be made on the open market by a broker designated by the Trustee who is independent of the Corporation in accordance with Stock Exchange Rules and who is a member of the Stock Exchange. Subject to the foregoing part of this Section 6.2, any such designation may be changed from time to time. For clarity, this Section 6 does not obligate the Corporation or any Affiliate to purchase shares for the purposes of funding or settling, in whole or in part, awards of PSUs which may become payable to Participants pursuant to the Plan.

 

7. ELIGIBLE PSU s AND PERFORMANCE CRITERIA

 

  7.1 Eligible PSUs . PSUs granted to a Participant under Section 4.1 (and Dividend Equivalent PSUs granted to the Participant in respect of such PSUs) shall become “Eligible PSUs” in accordance with Section 7.2 and subject to the terms and conditions of the Plan and applicable Grant Agreement. PSUs granted to a Participant which do not become Eligible PSUs in accordance with this Section 7 or do not become Vested PSUs pursuant to Section 8, as applicable, shall be forfeited by the Participant or, where applicable, the Participant’s legal representative, and the Participant and, where applicable, the Participant’s legal representative, shall have no further right, title or interest in such PSUs. In such event, the Participant hereby waives any and all claims and/or rights to compensation or damages in consequence of the Termination of Employment (whether lawfully or unlawfully) or otherwise for any reason whatsoever insofar as these rights arise or may arise from the Participant ceasing to have rights to receive any cash payment or Shares in respect of PSUs granted under the Plan or any applicable Grant Agreement pursuant to this Section 7 or Section 8.


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  7.2 Eligibility Based on Achievement of Performance Criteria. PSUs granted to a Participant may only become Eligible PSUs upon satisfaction of the Performance Criteria referred to in Section 7.3, as determined by the Committee, in its discretion, and pursuant to the terms and conditions set forth in the Plan and the applicable Grant Agreement.

 

  7.3 Determination of Performance Criteria . With respect to each grant of PSUs pursuant to Section 4.1, the Committee shall cause to be determined at the Committee Meeting Date applicable to a particular Performance Period, the Achieved Performance Criteria in respect of that Performance Period, as set out in the applicable Grant Agreement, for purposes of determining whether, and the extent to which (as applicable), such PSUs have become Eligible PSUs.

 

  7.4 Eligible PSU Amount. With respect to the Eligible PSUs relating to a particular Performance Period, the Committee shall also cause to be determined at the applicable Committee Meeting Date, the Eligible PSU Amount relating to such Eligible PSUs, which amount shall be used to determine the value relating to such Eligible PSUs on the Vesting Date, subject to and in accordance with the terms and conditions of the Plan and the applicable Grant Agreement. The Committee may, in its discretion, determine whether to adjust the Eligible PSU Amount, and where such an adjustment is to be made, the adjustment mechanism in respect thereof.

 

8. VESTING AND PAYMENT OF PSU AWARDS

 

  8.1 Vesting of Eligible PSUs. Subject to Sections 8.3, 8.4 and 8.5, Eligible PSUs relating to a grant of PSUs shall become Vested PSUs on the Vesting Date set forth in the applicable Grant Agreement. Except where the context requires otherwise, each Eligible PSU which vests pursuant to Section 8 shall be referred to for the purposes of the Plan and the applicable Grant Agreement as a “Vested PSU”. Eligible PSUs which do not become Vested PSUs in accordance with this Section 8 shall be forfeited by the Participant and the Participant will have no further right, title or interest in such PSUs. In such event, the Participant hereby waives any and all claims and/or rights to compensation or damages in consequence of the Participant’s Termination of Employment (whether lawfully or unlawfully, wrongful or otherwise) or otherwise for any reason insofar as these rights arise or may arise from the Participant ceasing to have rights to receive any cash payment or Shares in respect of PSUs granted under the Plan or any applicable Grant Agreement pursuant to this Section 8.

 

  8.2

Payment in Cash or Shares. Subject to Sections 8.3, 8.4 and 8.5, each Participant shall be entitled to receive in cash or in Shares (or a combination thereof), as determined by the Committee, a payment in respect of the Vested PSUs relating to a particular Performance Period, as determined pursuant to Section 8.1, equal to the Participant’s Eligible PSU Amount in respect of such Performance Period (as may be adjusted pursuant to Section 7.4). Except as otherwise provided in Sections 8.3., 8.4, 8.5 and 11.8 and/or the applicable Grant Agreement(s), the cash or Shares in the amount determined pursuant to this Section 8.2 shall be paid or distributed to the Participant as soon as practicable following the Vesting Date set forth in the applicable Grant Agreement(s) and, in


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  any event, prior to December 31 of the calendar year in which the applicable Vesting Date occurs, provided the Participant remains actively employed with the Corporation or an Affiliate, as applicable, on such date.

 

  8.3 Death, Retirement, Period of Absence or Unpaid Leave of Absence.

 

  8.3.1 Death. Unless otherwise determined by the Committee, in the event the Participant ceases to be an employee of the Corporation or an Affiliate, as applicable, by reason of the Participant’s death, the following shall apply:

 

  (a) Where the Participant’s date of death occurs on a date that is prior to the date the Participant attains the age of 60 years, then:

 

  (i) All Vested PSUs credited to the Participant’s PSU Account as of the Participant’s date of death, if any, if not already paid or distributed, shall be paid or distributed to the Participant’s legal representative in accordance with Section 8.2; and

 

  (ii) Unless otherwise determined by the Committee, in the event of the Participant’s death prior to the Vesting Date relating to a grant of PSUs, PSUs granted to the Participant prior the Participant’s date of death which become Eligible PSUs pursuant to Section 7.2 shall vest and become payable to the Participant’s legal representative on the applicable Vesting Date in accordance with Section 8.2 in proportion to the number of calendar months (rounded up to the nearest whole month) following the applicable Grant Date before the date of death.

 

  (b) Where the Participant’s date of death occurs on a date following the date that the Participant attains the age of 60 years, then:

 

  (i) All Vested PSUs credited to the Participant’s PSU Account as of the Participant’s date of death, if any, if not already paid or distributed, shall be paid or distributed to the Participant’s legal representative in accordance with Section 8.2;

 

  (ii) Unless otherwise determined by the Committee, PSUs granted to the Participant prior to the Participant’s date of death which become Eligible PSUs pursuant to Section 7.2 shall vest and become payable to the Participant’s legal representative on the applicable Vesting Date in accordance with Section 8.2.

 

  (c) For clarity, no additional PSUs (whether pursuant to Section 4.1 or in the form of Dividend Equivalent PSUs) shall be granted to the Participant following the Participant’s date of death.

 

  8.3.2 Retirement. Unless otherwise determined by the Committee, in the event of the Participant ceases to be an employee of the Corporation or an Affiliate by reason of the Participant’s Retirement, the following shall apply:


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  (a) Where the Participant’s Date of Retirement occurs on a date that is prior to the date the Participant attains the age of 60 years, then:

 

  (i) All Vested PSUs credited to the Participant’s PSU Account as of the Participant’s Date of Retirement, if any, if not already paid or distributed, shall be paid or distributed to the Participant in accordance with Section 8.2; and

 

  (ii) Unless otherwise determined by the Committee, in the event of the Participant’s Retirement prior to the Vesting Date relating to a grant of PSUs under Section 4.1, PSUs granted to the Participant prior the Participant’s Date of Retirement which become Eligible PSUs pursuant to Section 7.2 shall vest and become payable to the Participant on the applicable Vesting Date in accordance with Section 8.2 in proportion to the number of calendar months (rounded up to the nearest whole month) following the applicable Grant Date before the Date of Retirement.

 

  (b) Where the Participant’s Date of Retirement occurs on a date that is on or after the date the Participant attains the age of 60 years, then:

 

  (i) All Vested PSUs credited to the Participant’s PSU Account as of the Participant’s Date of Retirement, if any, if not already paid or distributed, shall be paid or distributed to the Participant in accordance with Section 8.2;

 

  (ii) Unless otherwise determined by the Committee, PSUs granted to the Participant prior to the Participant’s Date of Retirement which become Eligible PSUs pursuant to Section 7.2 shall vest and become payable to the Participant on the applicable Vesting Date in accordance with Section 8.2.

 

  (c) For clarity, no additional PSUs (whether pursuant to Section 4.1 or in the form of Dividend Equivalent PSUs) shall be granted to the Participant following his Date of Retirement.

 

  8.3.3

Period of Absence. Unless otherwise determined by the Committee, in the event of a Participant’s Period of Absence, PSUs credited to the Participant’s PSU Account immediately prior to such Period of Absence (and any related Dividend Equivalent PSUs) shall continue to be and become Eligible PSUs in accordance with the provisions of Section 7.2 and such Eligible PSUs (if any) shall continue to become Vested PSUs in accordance with Section 8.1 and the Participant shall be entitled to receive a payment relating to such Vested PSUs determined in accordance with Section 8.2 in respect of each Performance Period that ends during the period of such Period of Absence and thereafter, unless there occurs a Termination of Employment during a Performance Period, in which case the provisions of Section 8.4 shall apply, or unless the Participant’s death occurs during a Performance Period, in which case the provisions of Section 8.3.1 shall apply, or unless there occurs a


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  Retirement of the Participant during a Performance Period, in which case the provisions of Section 8.3.2 apply.

 

  8.3.4 Unpaid Leave of Absence. Unless otherwise determined by the Committee, in the event of a Participant’s Unpaid Leave of Absence, PSUs shall not become Eligible PSUs nor shall any PSUs become Vested PSUs during the Participant’s Unpaid Leave of Absence and the provisions of this Section 8.3.4 shall be applicable. The Participant shall only become entitled to have his PSUs become Eligible PSUs or, as applicable, his Eligible PSUs to become Vested PSUs on the date when the Participant’s Unpaid Leave of Absence ends and the Participant returns to active employment with the Corporation or an Affiliate. If the Participant does not return to active employment with the Corporation or an Affiliate from the Unpaid Leave of Absence, all unvested PSUs regardless of whether such PSUs are or are not Eligible PSUs shall not vest and shall be forfeited and cancelled and the Participant waives any and all right to compensation or damages in consequence of the Participant ceasing to have rights or be entitled to receive any cash or Shares under the Plan pursuant to this Section 8.3.4. Notwithstanding anything contained herein to the contrary, in no event shall this Section 8.3.4 cause a Section 409A Amount to be paid in a calendar year later than the calendar year such Section 409A Amount would have been paid had the Participant not been on an Unpaid Leave of Absence. For greater certainty, and notwithstanding any other provision in the Plan or a Grant Agreement, in no event shall this Section 8.3.4 cause a Section 409A Amount to be paid in a calendar year later than the calendar year such Section 409A Amount would have been paid had the Participant not been on an Unpaid Leave of Absence and instead such Section 409A Amount shall either be forfeited or paid on or before December 31 of the calendar year in which such amount would have been paid had the Participant not been on an Unpaid Leave of Absence, as determined by the Committee.

 

  8.4 Termination of Employment . Unless otherwise determined by the Committee, a Participant shall not be entitled to any further grant or vesting of PSUs nor shall any PSUs become Eligible PSUs and the Participant shall not be entitled to any cash, Shares or other payment (including without limitation any Eligible PSU Amount) in respect of any unvested PSUs following a Termination of Employment. PSUs (including any related Dividend Equivalent PSUs) which do not become Eligible PSUs or which do not vest in accordance with Section 8 prior to the Date Employment Ceases shall be cancelled without payment. The Participant waives any and all right to compensation or damages which may arise or may be deemed to arise in consequence of the Participant’s Termination of Employment (whether lawfully or unlawfully) or otherwise for any reason whatsoever insofar as those rights arise or may arise from the Participant ceasing to have rights or be entitled to receive any cash, Shares or other payment under the Plan pursuant to this Section 8.4. Any Vested PSUs credited to a Participant’s PSU Account as of the Date Employment Ceases shall be payable in accordance with Section 8.2.

 

  8.5 Change in Control .


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(With amendments as of February 24, 2015 and February 22, 2016)

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  8.5.1 Eligibility and Vesting. Notwithstanding any other provision of the Plan, unless otherwise specified by the Board or the Committee with respect to any portion of a PSU that does not constitute a Section 409A Amount, in the event of a Change in Control, (a) all Eligible PSUs in each PSU Account shall become Vested PSUs immediately prior to the time of such Change in Control; and (b) all PSUs credited to each PSU Account that are not Eligible PSUs immediately prior to the time of such Change in Control shall become Eligible PSUs determined as if the Median Performance Criteria in respect of each applicable Performance Period have been achieved, and shall become Vested PSUs immediately prior to the time of such Change in Control.

 

  8.5.2 Payment. As soon as practicable following a Change in Control, (a) to the extent a Participant’s Vested PSUs are expressed in dollar value form in the PSU Account, (including, without limitation, as a dollar value Eligible PSU Amount), the Participant shall receive a cash payment equal to such dollar value; and (b) to the extent a Participant’s PSUs are expressed in PSU form in the PSU Account, the Participant shall receive in cash or in Shares (or a combination thereof), as may be determined by the Board or the Committee, a payment equal to the number of Vested PSUs (including as determined pursuant to Section 8.5.1) credited to the Participant’s PSU Account at the time of the Change in Control (rounded up to the nearest whole number of Vested PSUs) multiplied by the price at which the Shares are valued for the purpose of the transaction or series of transactions giving rise to the Change in Control, or if there is no such transaction or transactions, the simple average of the closing price per Share on the applicable Stock Exchange on each day in the thirty day period ending on the date of the Change in Control, provided, however, that where a Change in Control occurs and no Shares are distributed and no cash payments are made to a Participant pursuant to this subclause (b) within thirty days following the Change in Control, the Corporation shall cease to have the discretion to provide the Participant with Shares and shall be required to pay (or cause an Affiliate to pay) to the Participant in respect of such Vested PSUs the amount determined in accordance with the cash payment formula set out in subclause (b) above.

 

  8.5.3 Payment of Section 409A Amounts. With respect to any Section 409A Amount (i) if the Change in Control constitutes a change in the ownership or effective control of a corporation, or a change in the ownership of a substantial portion of the assets of a corporation, as such terms are used in Section 409A of the Code and related regulations (a “409A Change of Control”), such Section 409A Amount shall be paid in accordance with Section 8.5.2, but in all events within 90 days after the date of the Change in Control, and (ii) if the Change in Control does not constitute a 409A Change of Control, such Section 409A Amount shall in all events be paid during the calendar year in which such amounts would have been paid had there been no Change in Control.

 

9. CURRENCY


Performance Share Unit Plan for Employees

of Encana Corporation

(With amendments as of February 24, 2015 and February 22, 2016)

   Page 17

 

  9.1 Currency . Except where expressly provided otherwise, all references in the Plan to currency refer to lawful Canadian currency.

 

10. SHAREHOLDER RIGHTS

 

  10.1 No Rights to Shares . PSUs are not Shares and neither the grant of PSUs nor the fact that Shares may be acquired by, or provided from, a Trust Fund or otherwise in satisfaction of Vested PSUs will entitle a Participant to any shareholder rights, including, without limitation, voting rights, dividend entitlement or rights on liquidation.

 

11. ADMINISTRATION

 

  11.1 Committee . Unless otherwise determined by the Board, or as specified in Section 11.6, the Plan shall be administered by the Committee.

 

  11.2 Compliance with Laws and Policies . The Corporation’s issuance of any PSUs and its obligation to make any payments or discretion to provide any Shares hereunder is subject to compliance with Applicable Law. Each Participant shall acknowledge and agree (and shall be conclusively deemed to have so acknowledged and agreed by participating in the Plan) that the Participant will, at all times, act in strict compliance with Applicable Law and all other laws and any policies of the Corporation applicable to the Participant in connection with the Plan including, without limitation, furnishing to the Corporation all information and undertakings as may be required to permit compliance with Applicable Law. Such laws, regulations, rules and policies shall include, without limitation, those governing “insiders” or “reporting issuers” as those terms are construed for the purposes of applicable securities laws, regulations and rules.

 

  11.3 Delegation . The Committee may also delegate to any director, officer or employee of the Corporation such duties and powers relating to the Plan or in respect of an applicable Grant Agreement as it may see fit.

 

  11.4 Withholdings . Notwithstanding any other provision in this Plan, to ensure that the Corporation, an Affiliate or a Trust Fund, as applicable, will be able to comply with the applicable provisions of any federal, provincial, state or local law relating to the withholding of tax or other required deductions, including on the amount, if any, includable in the income of a Participant, the Corporation, or an Affiliate may withhold or cause to be withheld from any amount payable to a Participant, either under this Plan, or otherwise, such amount, or may require the sale of such number of Shares by the Trustee, as may be necessary to permit the Corporation, the Affiliate or a Trust Fund, as applicable, to so comply.

 

  11.5 No Additional Rights . Neither designation of an employee as a Participant nor the grant of any PSUs to any Participant at any time entitles any person to the grant, or any additional grant, as the case may be, of any PSUs under the Plan.

 

  11.6

Amendment, Termination . The Plan may be amended or terminated at any time by the Board in whole or in part. No amendment of the Plan shall, without the consent of the Participants affected by the amendment, or unless required by


Performance Share Unit Plan for Employees

of Encana Corporation

(With amendments as of February 24, 2015 and February 22, 2016)

   Page 18

 

  Applicable Law, adversely affect the rights accrued to such Participants with respect to PSUs granted prior to the date of the amendment. Notwithstanding any provision in the Plan to the contrary, the Plan may be amended to prevent any adverse tax results under Section 409A of the Code.

 

  11.7 Administration Costs . The Corporation will be responsible for all costs relating to the administration of the Plan. For greater certainty and unless otherwise determined by the Committee, a Participant shall be responsible for brokerage fees and other administration or transaction costs relating to the transfer, sale or other disposition of Shares on behalf of the Participant that have been previously distributed to or provided to the Participant pursuant to the Plan.

 

  11.8 Section 409A.

 

  11.8.1 Section 409A Amounts . To the extent applicable to any Section 409A Amount, it is intended that the Plan and any Grant Agreement or other agreement that amends or otherwise affects such Section 409A Amount will comply with Section 409A of the Code and any regulations and guidance issued thereunder, and the Plan and any such Grant Agreement or other agreement shall be interpreted accordingly. The provisions of this Section 11.8 shall apply to any Section 409A Amount notwithstanding anything in the Plan or a Grant Agreement to the contrary. In no event shall a Section 409A Amount be distributed at a time or pursuant to an event that is not specified in Section 409A(a)(2) of the Code.

 

  11.8.2 Retirement or Termination of Employment . The Plan does not provide for payment to occur upon (or on a specified date or within a specified period following) a Termination of Employment or Retirement; however, to the extent any Grant Agreement or other agreement provides that any Section 409A Amount is to be distributed upon (or on a specified date or within a specified period following) the date of a U.S. Participant’s Termination of Employment or Retirement, such U.S. Participant shall be deemed to have experienced a Termination of Employment or Retirement when (and only when) a separation from service (within the meaning of Treasury Regulation Section 1.409A-1(h)) has occurred.

 

  11.8.3 Specified Employees . If a U.S. Participant is a “specified employee” for purposes of Section 409A of the Code, no payment, distribution or other benefit provided pursuant to a Section 409A Amount that is required to be delayed to comply with Section 409A(a)(2)(B)(i) of the Code shall be provided before the date that is six months after the date of such separation from service (or, if earlier than the end of such six-month period, the date of death of the Participant). Any payment, distribution or other benefit that is delayed pursuant to the prior sentence shall be paid on the first Business Day following the six-month anniversary of the Participant’s separation from service or date of death, as the case may be.

 

  11.8.4

Time of Payment . In no event shall a Participant be entitled to designate the taxable year in which any Section 409A Amount is to be paid. Except with respect to payments following a Change in Control pursuant to


Performance Share Unit Plan for Employees

of Encana Corporation

(With amendments as of February 24, 2015 and February 22, 2016)

   Page 19

 

  Section 8.5.3, Shares or cash to be paid in respect of any Section 409A Amount pursuant to Vested PSUs shall in all events be paid within the calendar year in which the applicable Vesting Date set forth in the applicable Grant Agreement(s) occurs, which for purposes of Section 409A Amounts shall always be defined as occurring within a single calendar year. Payments with respect to Dividend Equivalent PSUs shall be paid at the same time as the PSU to which such Dividend Equivalent PSU relates.

 

  11.8.5 No Acceleration of Payments . In no event shall a change in a Performance Period, a waiver, amendment, exercise of discretion to adjust the Eligible PSU Amount under Section 7.4, or other modification of any terms or conditions of a PSU or any determination by the Committee or the Board, as applicable in each case, that occurs after the Grant Date cause any Section 409A amount to be paid in a calendar year that is different than the calendar year in which payment would have occurred but for such change to the Performance Period, waiver, amendment, modification, exercise of discretion, or determination.

 

  11.8.6 Trusts . Notwithstanding Section 6.1 hereof, no funds with respect to any Section 409A Amount shall be set aside in a trust located outside the United States or in any other trust or arrangement described under Section 409A(b)(1) of the Code.

 

12. ASSIGNMENT

 

  12.1 Assignment . The assignment or transfer of the PSUs, or any other benefits under this Plan, shall not be permitted other than by operation of law.

* * * *

Exhibit 10.11

PERFORMANCE SHARE UNIT PLAN

FOR EMPLOYEES OF ENCANA CORPORATION

[CANADIAN EXECUTIVE] 20      PSU GRANT AGREEMENT

 

Participant Name:

  

###PARTICIPANT_NAME###

Grant Date:

  

###GRANT_DATE###

Performance Period:

  

January 1, 20● to December 31, 20●    

Number of PSUs

  

###TOTAL_AWARDS###

Currency of PSUs:

  

CAD

Stock Exchange:

  

TSX

Vesting Date:

  

See Schedule “A”

This Grant Agreement including Schedules “A” and “B” hereto (collectively, this “ Agreement ”) is between you, an eligible employee of the Corporation or an Affiliate (“ Participant ” or “ You ”) and Encana Corporation or an Affiliate thereof (the “ Corporation ”).

WHEREAS the Corporation has adopted a Performance Share Unit Plan for Employees of Encana Corporation (the “ Plan ”), as amended and restated effective January 1, 2010 and reflective with amendments made as of July 20, 2010, and as of February 24, 2015;

AND WHEREAS subject to the terms and conditions of the Plan and this Agreement, the Corporation has authorized the granting to You of certain Performance Share Units (“ PSUs ”) in such number as set out above and as further described in this Agreement;

NOW THEREFORE, THIS AGREEMENT WITNESSETH that in consideration of such PSU grant and such other good and valuable consideration including, among other things, the employment services rendered by You to the Corporation or its Affiliate, the receipt and sufficiency of which is hereby acknowledged by the parties, it is agreed by and between the parties hereto as follows:

 

1. You confirm that You have received and reviewed a copy of the Plan and agree to be bound by its terms and conditions.

 

2. Participation in the Plan is voluntary on Your part.

 

3. The terms and conditions of the Plan are hereby incorporated by reference as terms and conditions of this Agreement. All capitalized terms used in this Agreement, unless otherwise defined herein, shall have the meanings ascribed to such terms as set out in the Plan.

 

4. Effective as of the Grant Date above, the Corporation hereby grants to You, in accordance with and subject to the terms and conditions of the Plan and this Agreement, PSUs in such number and in respect such Performance Period as set out above, and subject to the achievement of such Performance Criteria and such other terms and conditions as set forth in the Plan and this Agreement including, without limitation, Schedules “A” and “B” hereof.

 

5.

You agree that the determination by the Board (or the Committee, as applicable) regarding any question or issue which may arise as to the interpretation or implementation of the Plan,


  this Agreement or any PSUs granted to You hereunder, shall be final and binding on You and all other persons claiming or deriving rights through You.

 

6. The Corporation’s grant to You of any PSUs (or any obligation to make any corresponding payment to You) under the Plan or this Agreement is made expressly subject to the Parties’ compliance with Applicable Law. As a condition of participating in the Plan, You hereby confirm and accept the foregoing, and agree to comply with all Applicable Law and to furnish to the Corporation any and all information or undertakings as may be required to permit same.

 

7. You acknowledge and agree that the Plan and this Agreement contain specific terms and conditions (including, without limitation, in Section 8 of the Plan) with respect to determining whether and the extent to which PSUs may become Eligible PSUs and, as applicable, Vested PSUs and which govern your rights including, without limitation, in respect of a Period of Absence, Unpaid Leave of Absence, Death or Retirement, upon a Termination of Employment and/or upon a Change in Control. Without restricting the generality of Section 1 hereof, You hereby confirm that You have read all provisions of the Plan and this Agreement and agree to be bound by same.

 

8. Without limiting the generality of the foregoing, You confirm that upon the occurrence of a Termination of Employment of You, pursuant to Section 8.4 of the Plan, effective as of the Date Employment Ceases, You shall not be entitled to any further vesting of PSUs previously granted hereunder or to any further grant of PSUs, nor to any cash, Shares or other payment (as applicable) whatsoever in respect of any PSUs or Eligible PSUs that are unvested on or following such date.

 

9. Neither the Plan nor any action taken thereunder shall interfere with the right of the Corporation to terminate Your employment at any time. Neither shall any period of notice of termination, if any (whether pursuant to statute or common law), nor any payment in lieu thereof, upon a Termination of Employment of You (whether such termination is wrongful or otherwise) be considered or deemed to extend the period of Your employment or, for greater certainty, the Date Employment Ceases, for purposes of the Plan or this Agreement including, without limitation, for the purposes of vesting any PSUs or any payment in respect thereof. For greater certainty, all vesting of PSUs granted to You hereunder shall immediately cease as of the Date Employment Ceases.

 

10. You shall have no rights whatsoever as a shareholder in respect of any Shares (including any rights to receive dividends or other distributions from or on the Shares) other than in respect of Shares (if any) distributed to You in satisfaction of Your Vested PSUs in accordance with and in the manner provided for in the Plan.

 

11. You acknowledge and agree that PSUs granted to You hereunder, including any payment to You, whether made or pending, in respect thereof, are expressly subject to the terms and conditions of the Corporation’s “Incentive Compensation Clawback Policy”, attached hereto as Schedule “B”, as same may be amended by the Corporation from time to time.

 

12. Subject to Section 11.6 of the Plan, this Agreement may be amended or terminated at any time by the Committee in whole or in part and the Plan may be amended or terminated in whole or in part at any time by the Board.

 

13. This Agreement shall enure to the benefit of and be binding upon the Corporation and its respective successors and assigns and upon You and all other persons claiming or deriving rights through You.

 

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14. This Agreement and the rights of all parties and the construction of each and every provision hereof and the Plan and any PSUs granted hereunder shall at all times and for all purposes be construed according to the laws of the Province of Alberta (and the federal laws of Canada, as applicable, herein) and shall be treated in all respects as an Alberta contract, without reference to the principles of conflicts of law. In the event of a dispute, You agree to submit to the jurisdiction of the courts of the Province of Alberta.

 

15. Notwithstanding any provision of the Plan or this Agreement to the contrary, where applicable, it is intended that the provisions of the Plan and this Agreement comply with applicable tax law and, in respect of U.S. Participants, Section 409A, and that all provisions of the Plan shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. If You are an US Participant, You are solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed upon You or for Your account in connection with the Plan or any other Plan maintained by the Corporation or an Affiliate (including any taxes and penalties under Section 409A), and neither the Corporation nor any Affiliate shall have any obligation to indemnify or otherwise hold You (or any beneficiary) harmless from any or all of such taxes or penalties. In addition, should any provision of the Plan or this Agreement be subject to Section 409A, You agree that the Date Employment Ceases and the Date of Retirement shall be determined to mean a “separation from service” as defined in Section 409A whenever necessary to ensure compliance therewith for any payment or settlement of a benefit conferred under the Plan or this Agreement that is subject to Section 409A, and, for such purposes, shall be determined based upon a reduction in the bona fide level of services performed to a level equal to twenty percent (20%) or less of the average level of services performed by You during the immediately preceding 36-month period. Any distribution or settlement of a benefit conferred under the Plan or this Agreement following the Date Employment Ceases or the Date of Retirement that would be subject to Section 409A as a distribution following a separation from service of a “specified employee” as defined under Section 409A, shall occur no earlier than the expiration of the six-month period following such Date Employment Ceases or Date of Retirement.

 

16. You agree to the collection, use and disclosure of personal information about You (including, without limitation, personal employee information about You) (collectively, “ Personal Information ”) by the Corporation or its Affiliates for purposes of administering and managing the grant of PSUs to You hereunder, operation of the Plan and this Agreement and, as applicable, compliance with Applicable Law (the “ Purposes ”).

Without limiting the generality of the foregoing, You agree to the collection, use and disclosure of the Personal Information by the Corporation and its Affiliates from and to such third party service provider(s) as may be retained by the Corporation from time to time to assist with the Purposes (“ Service Provider ”), as may be reasonably required to fulfil the Purposes, whether verbally (including by telephone), in writing or electronically over the Internet including, without limitation, by e-mail. You agree that any acceptance or consent indicated by You in electronic form to any documents provided to You by the Corporation or the Service Provider including, without limitation, the Plan and this Agreement shall be the equivalent of original written paper documents and Your written acceptance or consent thereto.

You further agree to provide the Corporation and, where necessary, the Service Provider, with all information, including Personal Information, as may be reasonably required to fulfil the Purposes. You acknowledge and agree that the Corporation, an Affiliate and/or the Service Provider (as applicable) may, from time to time, and in accordance with Applicable Laws, disclose Personal Information including, without limitation, in response to regulatory

 

- 3 -


filings or other lawful requests by a government authority or regulatory body, or for purpose of complying with a subpoena, warrant or other order by a court or other party having jurisdiction over the Corporation, an Affiliate or the Service Provider (as applicable) to compel production of same. You acknowledge and agree that the Corporation, an Affiliate or the Service Provider may, as part of their business practices, collect, use and disclose the Personal Information outside of Canada or the United States (as applicable) in respect of the Purposes. Should You have any questions regarding the Corporation’s collection, use and disclosure of Your Personal Information, please contact Encana’s Privacy Officer at privacy@encana.com.

 

17. You understand that by indicating your acceptance of and agreement with the terms of this Agreement (whether electronically or otherwise), You confirm You have received and reviewed the terms of the Plan and this Agreement, which contain legal terms, and that You agree to be bound by them.

IN WITNESS WHEREOF this Agreement has been executed effective as of the Grant Date above.

 

ENCANA CORPORATION

 

Mike Williams

Executive Vice-President, Corporate Services

 

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Schedule “A”

 

1. PSU Vesting & Eligible PSU Amount:

Any PSUs granted to You on the Grant Date shall only become Vested PSUs upon satisfaction of the terms and conditions set out in the Plan and this Agreement. Without limiting the generality of the foregoing, any Vested PSUs will only become eligible for payment on the Vesting Date (defined in paragraph 3 below), subject to the terms and conditions set out in the Plan and this Agreement (including, without limitation, paragraph 9 below).

The number of PSUs that may become Vested PSUs (and the Eligible PSU Amount payable in connection therewith) on the Vesting Date shall be determined by the Committee and the Board following the Performance Period, in accordance with the terms of the Plan and this Agreement.

 

2. Performance Period :

The Performance Period for PSUs granted to You hereunder shall be January 1, 20●     to December 31, 20●     (the Performance Period ”).

 

3. Vesting Date :

Pursuant to the terms of the Plan and this Agreement, the Vesting Date shall be the later of: (i) the applicable third Anniversary Date following the Grant Date; and (ii) the first Committee Meeting Date immediately following the end of the Performance Period and, in any event, shall be prior to December 31 of the calendar year in which the third Anniversary Date occurs.

 

4. Performance Criteria :

The Performance Criteria used to determine the extent (if any), of vesting of PSUs granted hereunder shall consist of the following:

 

  Relative Total Shareholder Return (“RTSR”) (50 percent); and

 

  Strategic PSU Performance Measures (50 percent), consisting of the following:

 

    Margin Growth (20%)

 

    Balance Sheet Strength (20%)

 

    Portfolio (10%) (collectively, the “PSU Performance Measures”)

In respect of RTSR, the Corporation’s performance will be compared to the PSU Performance Peer Group (defined in paragraph 5 below), as measured over the Performance Period.

RTSR shall reflect a relative ranking of the Corporation’s Compound Annual Growth Rate in equity market value over the Performance Period (“CAGR”) as compared to the CAGR of each respective member of the PSU Performance Peer Group over the same period, arranged in ascending order. For purposes of determining CAGR for the Corporation and each PSU Performance Peer Group member during the Performance Period (or otherwise), the following calculation shall be performed:

 

   CAGR = 100 x [(B ÷ A)^.3333 -1] , where:

A =

   Commencement Adjusted Share Price: calculated as the average closing price of a share (or in the case of the Corporation, a Share) on the New York Stock Exchange over the thirty (30) calendar days immediately prior to the commencement of the Performance Period (as defined in paragraph 8 below); and

 

A-1


B =

   End Adjusted Share Price : calculated as the average closing price of a share, adjusted for dividends paid during the Performance Period, (or in the case of the Corporation, a Share) on the New York Stock Exchange over the thirty (30) calendar days immediately prior to and including the last day of the Performance Period.

In respect of the PSU Performance Measures, the Corporation’s performance shall be assessed by the Committee and the Board, as applicable, at the conclusion of the Performance Period.

For purposes of this Agreement, RTSR and the PSU Performance Measures shall be collectively referred to as the “Performance Criteria”.

 

5. PSU Performance Peer Group:

In respect of RTSR, the Corporation’s achievement of the Performance Criteria shall be measured in relation to the following PSU Performance Peer Group, as may be determined, amended and approved by the Committee or the Board, as applicable from time to time. In respect of the Performance Period, the initial PSU Performance Peer Group shall be as follows:

 

Antero Resources Corp.

 

EP Energy Corp.

Cabot Oil & Gas Corp.

 

Hess Corporation

Baytex Energy Corp.

 

Marathon Oil Corp.

Continental Resources Inc.

 

Murphy Oil Corp.

Apache Corp.

 

Newfield Exploration Corp.

Enerplus Corp.

 

Noble Energy Inc.

Devon Energy Corp.

 

Pengrowth Energy Corporation

Canadian Natural Resources Ltd.

 

Penn West Petroleum Ltd.

Concho Resources Inc.

 

Pioneer Natural Resources Co.

Chesapeake Energy Corp.

 

Range Resources Corp.

Anadarko Petroleum Corp.

 

Southwestern Energy Co.

Crescent Point Energy Corp.

 

Vermilion Energy Inc.

EOG Resources Inc.

 

Whiting Petroleum Co.

The Committee or the Board, as applicable, may, in its discretion, amend or modify the PSU Performance Peer Group during the Performance Period (including, without limitation by removing or adding a new member) including, without limitation, in the event any member ceases, in the sole discretion of the Committee or the Board, as applicable, to constitute a suitable member of the PSU Performance Peer Group.

 

6. Achieved Performance Criteria:

Unless otherwise determined by the Committee or the Board, as applicable, the Performance Criteria shall be calculated by the Corporation prior to the Vesting Date, following the end of the Performance Period.

At the Committee Meeting Date immediately following the Performance Period, the Committee shall evaluate the Corporation’s achievement of the Performance Criteria during the Performance Period.

In respect of RTSR, such assessment shall be relative to the corresponding performance of the PSU Performance Peer Group during the same period. In respect of the PSU Performance Criteria, such assessment shall be relative to criteria as may be determined by the Board or the Committee, as

 

A-2


applicable. Based on such evaluation, the Committee or the Board, as applicable, shall determine whether and the extent to which PSUs hereunder may become Eligible PSUs.

For purposes of RTSR, the Corporation’s CAGR during the Performance Period shall be measured against the CAGR of members of the PSU Performance Peer Group, calculated at the 90 th , 75 th , 50 th and 25 th percentiles, as reflected in the table below.

20    PSU Grant: Performance/Payout Matrix:

 

Relative TSR Performance Thresholds

 

Ranking of Corporation’s CAGR Relative to PSU Performance Peer Group

   Performance Payout Factor  

P90 and Above

     200

P75

     150

P50

     100

P25

     50

Below P25

     0

For greater certainty, the maximum Performance Payout Factor for the Performance Period is 200%, which may be applied by the Committee or the Board, as applicable, to an Achieved Performance Criteria at or above P90 (or the 90 th percentile) of the PSU Performance Peer Group.

Achieved Performance Criteria between the respective 3 Year Target Percentiles above shall be calculated on a linear basis, as follows:

 

    P25 (or 25 th percentile) but less than P50 (or 50 th percentile) represents a Performance Payout Factor of 50 – 99%;

 

    P50 (or 50 th percentile) but less than P75 (or 75 th percentile) represents Performance Payout Factor of 100 – 149%;

 

    P75 (or 75 th percentile) but less than P90 (or 90 th percentile) represents a Performance Payout Factor of 150 – 199%;

Unless otherwise determined by the Committee or the Board, as applicable, in its discretion, Achieved Performance Criteria below P25 (or the 25 th percentile) will result in no PSUs granted hereunder becoming Eligible PSUs in respect of the Performance Period.

The Corporation’s performance relative to the PSU Performance Measures over the Performance Period shall be assessed and determined by the Committee or the Board, as applicable. Based on such evaluation, the Committee or the Board, as applicable, shall determine whether and the extent to which PSUs hereunder may become Eligible PSUs.

Following upon approval by the Committee or the Board, as applicable, such approved Performance Criteria shall constitute the “ Achieved Performance Criteria” in respect of PSUs granted hereunder.

 

7. Commencement Adjusted Share Price:

The Commencement Adjusted Share Price for the Corporation for the Performance Period shall be $●   USD.

 

A-3


8. Dividend Equivalent PSUs:

Subject to the terms and conditions of the Plan and this Agreement, where cash dividends are paid by the Corporation on the Shares between the Grant Date and the Committee Meeting Date in respect of the Performance Period, the Corporation shall notionally credit additional Dividend Equivalent PSUs to the Participant’s PSU Account.

The number of such Dividend Equivalent PSUs (including fractional PSUs) to be credited in respect of each dividend record date will be calculated by dividing the cash dividends that would have been paid to the Participant if the corresponding PSUs applicable to the Performance Period had been Shares held by the Participant on such dividend record date, by the closing price per Share on the applicable Stock Exchange on the immediately preceding Trading Day of the dividend payment date for such cash dividends. The number and/or value of such Dividend Equivalent PSUs (as applicable) shall be determined by the Corporation prior to the Vesting Date relative to any Vested PSUs applicable to the Performance Period. Where applicable, Dividend Equivalent PSUs shall vest and be paid at the same time as the Vested PSUs to which they relate.

 

9. Eligible PSU Amount:

Following approval of the Achieved Performance Criteria, the Eligible PSU Amount in respect of each Participant shall be calculated by the Corporation in accordance with Section 7.4 of the Plan. The Eligible PSU Amount shall be equal to the number of Eligible PSUs relating to the Performance Period, including any Dividend Equivalent PSUs in respect of same, rounded up to the nearest whole number of Eligible PSUs.

Once determined, Eligible PSUs shall be converted to a cash equivalent (based on the Participant’s payroll currency) by multiplying the number of Eligible PSUs by the volume weighted average (rounded to two decimal places) trading price of a Share on the Participant’s applicable Stock Exchange over the five (5) Trading Days immediately following the Committee Meeting Date, held to determine the vesting eligibility of PSUs granted hereunder, subject to any Blackout Period (the “ Eligible PSU Amount ”).

 

10. Eligible PSU Amount Payment:

Subject to the terms of the Plan and this Agreement, following the Vesting Date, the Participant shall be eligible to receive a payment representing the Participant’s Eligible PSU Amount for the Performance Period. Except as otherwise provided in the Plan and this Agreement, such payment shall be distributed to the Participant or, where applicable, the Participant’s legal representative, as soon as practicable following the Vesting Date and, in any event, prior to December 31 of calendar year following the calendar year in which third Anniversary Date occurs.

 

A-4


Schedule “B”

INCENTIVE COMPENSATION CLAWBACK POLICY

By resolution of the Board of Directors (the “ Board ”) of Encana Corporation (“ Encana ” or the “ Corporation ”), this Policy is effective as of this 22 nd day of October, 2012 (the “ Effective Date ”).

This Policy applies to the President & Chief Executive Officer and each Executive-Vice President of the Corporation and any individual who serves in either such capacity on or following the Effective Date (collectively, the “ Executive ”). References in this Policy to the “Corporation” include, where applicable, any affiliate thereof.

This Policy has been adopted to enhance the Corporation’s alignment with best practices in respect of risk management and executive compensation and shall be, at all times, subject to and interpreted in a manner consistent with applicable laws or the rules of any applicable stock exchange (collectively, “ Applicable Rules ”) .

This Policy applies to “Incentive-Based Compensation” which, for the purposes of this Policy, means compensation relating to the achievement of performance goals or similar conditions, excluding salary, perquisites, benefits and pension entitlements, and including, without limitation, any award or grant of or any eligibility, entitlement or gain of, an Executive under the Corporation’s: (i) High Performance Results Plan, or any other short-term incentive plan; or (ii) Long-Term Incentive (“ LTI ”) program including, without limitation, Employee Stock Option Plan, Employee Stock Appreciation Rights Plan, Performance Share Unit Plan, Restricted Share Unit Plan and Deferred Share Unit Plan, as each may be amended from time to time (including any time-based grants under any such plans). For greater clarity, this Policy shall not apply to any Incentive-Based Compensation awarded, granted or paid to an Executive prior to the Effective Date.

Where:

 

    the Corporation is required to prepare an accounting restatement due to its material non-compliance with any financial reporting requirement under applicable securities laws (the “ Restatement ”), (the date upon which the Corporation is required to prepare such Restatement is hereinafter the “ Restatement Date ”);

 

    the Executive received Incentive-Based Compensation referable to the financial years subject to the Restatement in excess of what the Executive would have been paid under the Restatement (the “ Overcompensation Amount ”); and

 

    the Executive engaged in gross negligence, intentional misconduct or fraud which caused or significantly contributed to the Corporation’s material non-compliance with applicable securities laws which resulted in the requirement for the Restatement;

the Board shall be entitled:

 

    where and to the extent the Overcompensation Amount has been previously paid, transferred or otherwise made available to the Executive, to require the Executive, by written demand, to reimburse the Corporation for the Overcompensation Amount; and

 

   

where all or a portion of the Overcompensation Amount has not been paid, transferred or otherwise made available to the Executive, the right of the Executive to be so paid or have such benefit transferred or otherwise made available to him or her shall, to the extent required to reimburse the Corporation for such Overcompensation Amount, immediately

 

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terminate and be forfeited by the Executive and where required, cancelled by the Corporation to such extent and upon such date as may be specified by the Board; and

 

    to the extent the Overcompensation Amount is not immediately recovered upon demand from the Executive, whether via direct reimbursement, forfeiture and/or cancellation, to require a sufficient quantity or value of any compensation owing by the Corporation to the Executive including, without limitation, any unvested or unexercised awards under the LTIs (the “ Outstanding LTIs ”), be immediately withheld and/or irrevocably cancelled by the Corporation to compensate for (or set off the value of same against) the Overcompensation Amount or any unrecovered portion thereof, and to bring any other actions against the Executive which the Board may deem necessary to recover the Overcompensation Amount.

The period of time during which the Corporation shall be entitled to seek recovery of the Overcompensation Amount from the Executive shall be three (3) years from the Restatement Date. Recoupment of Overcompensation Amounts under this Policy shall be initiated by the Corporation at the request of the Board, and all amounts recoverable or payable hereunder shall be paid to the Corporation or as directed by the Board.

If Applicable Rules require the Corporation to adopt a policy or provisions relating to the recoupment or recovery of incentive-based or other compensation based on restated financial statements which are inconsistent with or materially differ from this Policy and the Board adopts such policy or provisions to comply with Applicable Rules (the “ New Policy ”), such New Policy shall replace and supersede this Policy and shall apply to Incentive-Based Compensation granted or awarded to the Executive following the effective date of the New Policy. Subject to Applicable Rules, this Policy shall continue to apply to Incentive-Based Compensation granted or awarded to the Executive prior to the effective date of the New Policy. This Policy may be terminated at any time by the Board.

 

A-6

Exhibit 10.12

PERFORMANCE SHARE UNIT PLAN

FOR EMPLOYEES OF ENCANA CORPORATION

[U.S. EXECUTIVE] 20    PSU GRANT AGREEMENT

 

Participant Name:    ###PARTICIPANT_NAME###
Grant Date:    ###GRANT_DATE###
Performance Period:    January 1, 20●   to December 31, 20●  
Number of PSUs    ###TOTAL_AWARDS###
Currency of PSUs:    USD
Stock Exchange:    NYSE
Vesting Date:    See Schedule “A”

This Grant Agreement including Schedules “A” and “B” hereto (collectively, this “ Agreement ”) is between you, an eligible employee of the Corporation or an Affiliate (“ Participant ” or “ You ”) and Encana Corporation or an Affiliate thereof (the “ Corporation ”).

WHEREAS the Corporation has adopted a Performance Share Unit Plan for Employees of Encana Corporation (the “ Plan ”), as amended and restated effective January 1, 2010 and reflective with amendments made as of July 20, 2010, and as of February 24, 2015;

AND WHEREAS subject to the terms and conditions of the Plan and this Agreement, the Corporation has authorized the granting to You of certain Performance Share Units (“ PSUs ”) in such number as set out above and as further described in this Agreement;

NOW THEREFORE, THIS AGREEMENT WITNESSETH that in consideration of such PSU grant and such other good and valuable consideration including, among other things, the employment services rendered by You to the Corporation or its Affiliate, the receipt and sufficiency of which is hereby acknowledged by the parties, it is agreed by and between the parties hereto as follows:

 

1. You confirm that You have received and reviewed a copy of the Plan and agree to be bound by its terms and conditions.

 

2. Participation in the Plan is voluntary on Your part.

 

3. The terms and conditions of the Plan are hereby incorporated by reference as terms and conditions of this Agreement. All capitalized terms used in this Agreement, unless otherwise defined herein, shall have the meanings ascribed to such terms as set out in the Plan.

 

4. Effective as of the Grant Date above, the Corporation hereby grants to You, in accordance with and subject to the terms and conditions of the Plan and this Agreement, PSUs in such number and in respect such Performance Period as set out above, and subject to the achievement of such Performance Criteria and such other terms and conditions as set forth in the Plan and this Agreement including, without limitation, Schedules “A” and “B” hereof.

 

5.

You agree that the determination by the Board (or the Committee, as applicable) regarding any question or issue which may arise as to the interpretation or implementation of the Plan,


  this Agreement or any PSUs granted to You hereunder, shall be final and binding on You and all other persons claiming or deriving rights through You.

 

6. The Corporation’s grant to You of any PSUs (or any obligation to make any corresponding payment to You) under the Plan or this Agreement is made expressly subject to the Parties’ compliance with Applicable Law. As a condition of participating in the Plan, You hereby confirm and accept the foregoing, and agree to comply with all Applicable Law and to furnish to the Corporation any and all information or undertakings as may be required to permit same.

 

7. You acknowledge and agree that the Plan and this Agreement contain specific terms and conditions (including, without limitation, in Section 8 of the Plan) with respect to determining whether and the extent to which PSUs may become Eligible PSUs and, as applicable, Vested PSUs and which govern your rights including, without limitation, in respect of a Period of Absence, Unpaid Leave of Absence, Death or Retirement, upon a Termination of Employment and/or upon a Change in Control. Without restricting the generality of Section 1 hereof, You hereby confirm that You have read all provisions of the Plan and this Agreement and agree to be bound by same.

 

8. Without limiting the generality of the foregoing, You confirm that upon the occurrence of a Termination of Employment of You, pursuant to Section 8.4 of the Plan, effective as of the Date Employment Ceases, You shall not be entitled to any further vesting of PSUs previously granted hereunder or to any further grant of PSUs, nor to any cash, Shares or other payment (as applicable) whatsoever in respect of any PSUs or Eligible PSUs that are unvested on or following such date.

 

9. Neither the Plan nor any action taken thereunder shall interfere with the right of the Corporation to terminate Your employment at any time. Neither shall any period of notice of termination, if any (whether pursuant to statute or common law), nor any payment in lieu thereof, upon a Termination of Employment of You (whether such termination is wrongful or otherwise) be considered or deemed to extend the period of Your employment or, for greater certainty, the Date Employment Ceases, for purposes of the Plan or this Agreement including, without limitation, for the purposes of vesting any PSUs or any payment in respect thereof. For greater certainty, all vesting of PSUs granted to You hereunder shall immediately cease as of the Date Employment Ceases.

 

10. You shall have no rights whatsoever as a shareholder in respect of any Shares (including any rights to receive dividends or other distributions from or on the Shares) other than in respect of Shares (if any) distributed to You in satisfaction of Your Vested PSUs in accordance with and in the manner provided for in the Plan.

 

11. You acknowledge and agree that PSUs granted to You hereunder, including any payment to You, whether made or pending, in respect thereof, are expressly subject to the terms and conditions of the Corporation’s “Incentive Compensation Clawback Policy”, attached hereto as Schedule “B”, as same may be amended by the Corporation from time to time.

 

12. Subject to Section 11.6 of the Plan, this Agreement may be amended or terminated at any time by the Committee in whole or in part and the Plan may be amended or terminated in whole or in part at any time by the Board.

 

13. This Agreement shall enure to the benefit of and be binding upon the Corporation and its respective successors and assigns and upon You and all other persons claiming or deriving rights through You.

 

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14. This Agreement and the rights of all parties and the construction of each and every provision hereof and the Plan and any PSUs granted hereunder shall at all times and for all purposes be construed according to the laws of the Province of Alberta (and the federal laws of Canada, as applicable, herein) and shall be treated in all respects as an Alberta contract, without reference to the principles of conflicts of law. In the event of a dispute, You agree to submit to the jurisdiction of the courts of the Province of Alberta.

 

15. Notwithstanding any provision of the Plan or this Agreement to the contrary, where applicable, it is intended that the provisions of the Plan and this Agreement comply with applicable tax law and, in respect of U.S. Participants, Section 409A, and that all provisions of the Plan shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. If You are an US Participant, You are solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed upon You or for Your account in connection with the Plan or any other Plan maintained by the Corporation or an Affiliate (including any taxes and penalties under Section 409A), and neither the Corporation nor any Affiliate shall have any obligation to indemnify or otherwise hold You (or any beneficiary) harmless from any or all of such taxes or penalties. In addition, should any provision of the Plan or this Agreement be subject to Section 409A, You agree that the Date Employment Ceases and the Date of Retirement shall be determined to mean a “separation from service” as defined in Section 409A whenever necessary to ensure compliance therewith for any payment or settlement of a benefit conferred under the Plan or this Agreement that is subject to Section 409A, and, for such purposes, shall be determined based upon a reduction in the bona fide level of services performed to a level equal to twenty percent (20%) or less of the average level of services performed by You during the immediately preceding 36-month period. Any distribution or settlement of a benefit conferred under the Plan or this Agreement following the Date Employment Ceases or the Date of Retirement that would be subject to Section 409A as a distribution following a separation from service of a “specified employee” as defined under Section 409A, shall occur no earlier than the expiration of the six-month period following such Date Employment Ceases or Date of Retirement.

 

16. You agree to the collection, use and disclosure of personal information about You (including, without limitation, personal employee information about You) (collectively, “ Personal Information ”) by the Corporation or its Affiliates for purposes of administering and managing the grant of PSUs to You hereunder, operation of the Plan and this Agreement and, as applicable, compliance with Applicable Law (the “ Purposes ”).

Without limiting the generality of the foregoing, You agree to the collection, use and disclosure of the Personal Information by the Corporation and its Affiliates from and to such third party service provider(s) as may be retained by the Corporation from time to time to assist with the Purposes (“ Service Provider ”), as may be reasonably required to fulfil the Purposes, whether verbally (including by telephone), in writing or electronically over the Internet including, without limitation, by e-mail. You agree that any acceptance or consent indicated by You in electronic form to any documents provided to You by the Corporation or the Service Provider including, without limitation, the Plan and this Agreement shall be the equivalent of original written paper documents and Your written acceptance or consent thereto.

You further agree to provide the Corporation and, where necessary, the Service Provider, with all information, including Personal Information, as may be reasonably required to fulfil the Purposes. You acknowledge and agree that the Corporation, an Affiliate and/or the Service Provider (as applicable) may, from time to time, and in accordance with Applicable Laws, disclose Personal Information including, without limitation, in response to regulatory

 

- 3 -


filings or other lawful requests by a government authority or regulatory body, or for purpose of complying with a subpoena, warrant or other order by a court or other party having jurisdiction over the Corporation, an Affiliate or the Service Provider (as applicable) to compel production of same. You acknowledge and agree that the Corporation, an Affiliate or the Service Provider may, as part of their business practices, collect, use and disclose the Personal Information outside of Canada or the United States (as applicable) in respect of the Purposes. Should You have any questions regarding the Corporation’s collection, use and disclosure of Your Personal Information, please contact Encana’s Privacy Officer at privacy@encana.com.

 

17. You understand that by indicating your acceptance of and agreement with the terms of this Agreement (whether electronically or otherwise), You confirm You have received and reviewed the terms of the Plan and this Agreement, which contain legal terms, and that You agree to be bound by them.

IN WITNESS WHEREOF this Agreement has been executed effective as of the Grant Date above.

 

ENCANA CORPORATION

 

Mike Williams
Executive Vice-President, Corporate Services

 

- 4 -


Schedule “A”

 

1. PSU Vesting & Eligible PSU Amount:

Any PSUs granted to You on the Grant Date shall only become Vested PSUs upon satisfaction of the terms and conditions set out in the Plan and this Agreement. Without limiting the generality of the foregoing, any Vested PSUs will only become eligible for payment on the Vesting Date (defined in paragraph 3 below), subject to the terms and conditions set out in the Plan and this Agreement (including, without limitation, paragraph 9 below).

The number of PSUs that may become Vested PSUs (and the Eligible PSU Amount payable in connection therewith) on the Vesting Date shall be determined by the Committee and the Board following the Performance Period, in accordance with the terms of the Plan and this Agreement.

 

2. Performance Period :

The Performance Period for PSUs granted to You hereunder shall be January 1, 20●   to December 31, 20●   (the Performance Period ”).

 

3. Vesting Date :

Pursuant to the terms of the Plan and this Agreement, the Vesting Date shall be the later of: (i) the applicable third Anniversary Date following the Grant Date; and (ii) the first Committee Meeting Date immediately following the end of the Performance Period and, in any event, shall be prior to December 31 of the calendar year in which the third Anniversary Date occurs.

 

4. Performance Criteria :

The Performance Criteria used to determine the extent (if any), of vesting of PSUs granted hereunder shall consist of the following:

 

  Relative Total Shareholder Return (“RTSR”) (50 percent); and

 

  Strategic PSU Performance Measures (50 percent), consisting of the following:

 

    Margin Growth (20%)

 

    Balance Sheet Strength (20%)

 

    Portfolio (10%) (collectively, the “PSU Performance Measures”)

In respect of RTSR, the Corporation’s performance will be compared to the PSU Performance Peer Group (defined in paragraph 5 below), as measured over the Performance Period.

RTSR shall reflect a relative ranking of the Corporation’s Compound Annual Growth Rate in equity market value over the Performance Period (“CAGR”) as compared to the CAGR of each respective member of the PSU Performance Peer Group over the same period, arranged in ascending order. For purposes of determining CAGR for the Corporation and each PSU Performance Peer Group member during the Performance Period (or otherwise), the following calculation shall be performed:

 

     CAGR = 100 x [(B ÷ A)^.3333 -1] , where:
A   =    Commencement Adjusted Share Price: calculated as the average closing price of a share (or in the case of the Corporation, a Share) on the New York Stock Exchange over the thirty (30) calendar days immediately prior to the commencement of the Performance Period (as defined in paragraph 8 below); and

 

A-1


B   =    End Adjusted Share Price : calculated as the average closing price of a share, adjusted for dividends paid during the Performance Period, (or in the case of the Corporation, a Share) on the New York Stock Exchange over the thirty (30) calendar days immediately prior to and including the last day of the Performance Period.

In respect of the PSU Performance Measures, the Corporation’s performance shall be assessed by the Committee and the Board, as applicable, at the conclusion of the Performance Period.

For purposes of this Agreement, RTSR and the PSU Performance Measures shall be collectively referred to as the “Performance Criteria”.

 

5. PSU Performance Peer Group:

In respect of RTSR, the Corporation’s achievement of the Performance Criteria shall be measured in relation to the following PSU Performance Peer Group, as may be determined, amended and approved by the Committee or the Board, as applicable from time to time. In respect of the Performance Period, the initial PSU Performance Peer Group shall be as follows:

 

Antero Resources Corp.    EP Energy Corp.
Cabot Oil & Gas Corp.    Hess Corporation
Baytex Energy Corp.    Marathon Oil Corp.
Continental Resources Inc.    Murphy Oil Corp.
Apache Corp.    Newfield Exploration Corp.
Enerplus Corp.    Noble Energy Inc.
Devon Energy Corp.    Pengrowth Energy Corporation
Canadian Natural Resources Ltd.    Penn West Petroleum Ltd.
Concho Resources Inc.    Pioneer Natural Resources Co.
Chesapeake Energy Corp.    Range Resources Corp.
Anadarko Petroleum Corp.    Southwestern Energy Co.
Crescent Point Energy Corp.    Vermilion Energy Inc.
EOG Resources Inc.    Whiting Petroleum Co.

The Committee or the Board, as applicable, may, in its discretion, amend or modify the PSU Performance Peer Group during the Performance Period (including, without limitation by removing or adding a new member) including, without limitation, in the event any member ceases, in the sole discretion of the Committee or the Board, as applicable, to constitute a suitable member of the PSU Performance Peer Group.

 

6. Achieved Performance Criteria:

Unless otherwise determined by the Committee or the Board, as applicable, the Performance Criteria shall be calculated by the Corporation prior to the Vesting Date, following the end of the Performance Period.

At the Committee Meeting Date immediately following the Performance Period, the Committee shall evaluate the Corporation’s achievement of the Performance Criteria during the Performance Period.

In respect of RTSR, such assessment shall be relative to the corresponding performance of the PSU Performance Peer Group during the same period. In respect of the PSU Performance Criteria, such assessment shall be relative to criteria as may be determined by the Board or the Committee, as

 

A-2


applicable. Based on such evaluation, the Committee or the Board, as applicable, shall determine whether and the extent to which PSUs hereunder may become Eligible PSUs.

For purposes of RTSR, the Corporation’s CAGR during the Performance Period shall be measured against the CAGR of members of the PSU Performance Peer Group, calculated at the 90 th , 75 th , 50 th and 25 th percentiles, as reflected in the table below.

20      PSU Grant: Performance/Payout Matrix:

 

Relative TSR Performance Thresholds

 

Ranking of Corporation’s CAGR Relative to PSU Performance Peer Group

   Performance Payout Factor  

P90 and Above

     200

P75

     150

P50

     100

P25

     50

Below P25

     0

For greater certainty, the maximum Performance Payout Factor for the Performance Period is 200%, which may be applied by the Committee or the Board, as applicable, to an Achieved Performance Criteria at or above P90 (or the 90 th percentile) of the PSU Performance Peer Group.

Achieved Performance Criteria between the respective 3 Year Target Percentiles above shall be calculated on a linear basis, as follows:

 

    P25 (or 25 th percentile) but less than P50 (or 50 th percentile) represents a Performance Payout Factor of 50 – 99%;

 

    P50 (or 50 th percentile) but less than P75 (or 75 th percentile) represents Performance Payout Factor of 100 – 149%;

 

    P75 (or 75 th percentile) but less than P90 (or 90 th percentile) represents a Performance Payout Factor of 150 – 199%;

Unless otherwise determined by the Committee or the Board, as applicable, in its discretion, Achieved Performance Criteria below P25 (or the 25 th percentile) will result in no PSUs granted hereunder becoming Eligible PSUs in respect of the Performance Period.

The Corporation’s performance relative to the PSU Performance Measures over the Performance Period shall be assessed and determined by the Committee or the Board, as applicable. Based on such evaluation, the Committee or the Board, as applicable, shall determine whether and the extent to which PSUs hereunder may become Eligible PSUs.

Following upon approval by the Committee or the Board, as applicable, such approved Performance Criteria shall constitute the “ Achieved Performance Criteria” in respect of PSUs granted hereunder.

 

7. Commencement Adjusted Share Price:

The Commencement Adjusted Share Price for the Corporation for the Performance Period shall be $●     USD.

 

A-3


8. Dividend Equivalent PSUs:

Subject to the terms and conditions of the Plan and this Agreement, where cash dividends are paid by the Corporation on the Shares between the Grant Date and the Committee Meeting Date in respect of the Performance Period, the Corporation shall notionally credit additional Dividend Equivalent PSUs to the Participant’s PSU Account.

The number of such Dividend Equivalent PSUs (including fractional PSUs) to be credited in respect of each dividend record date will be calculated by dividing the cash dividends that would have been paid to the Participant if the corresponding PSUs applicable to the Performance Period had been Shares held by the Participant on such dividend record date, by the closing price per Share on the applicable Stock Exchange on the immediately preceding Trading Day of the dividend payment date for such cash dividends. The number and/or value of such Dividend Equivalent PSUs (as applicable) shall be determined by the Corporation prior to the Vesting Date relative to any Vested PSUs applicable to the Performance Period. Where applicable, Dividend Equivalent PSUs shall vest and be paid at the same time as the Vested PSUs to which they relate.

 

9. Eligible PSU Amount:

Following approval of the Achieved Performance Criteria, the Eligible PSU Amount in respect of each Participant shall be calculated by the Corporation in accordance with Section 7.4 of the Plan. The Eligible PSU Amount shall be equal to the number of Eligible PSUs relating to the Performance Period, including any Dividend Equivalent PSUs in respect of same, rounded up to the nearest whole number of Eligible PSUs.

Once determined, Eligible PSUs shall be converted to a cash equivalent (based on the Participant’s payroll currency) by multiplying the number of Eligible PSUs by the volume weighted average (rounded to two decimal places) trading price of a Share on the Participant’s applicable Stock Exchange over the five (5) Trading Days immediately following the Committee Meeting Date, held to determine the vesting eligibility of PSUs granted hereunder, subject to any Blackout Period (the “ Eligible PSU Amount ”).

 

10. Eligible PSU Amount Payment:

Subject to the terms of the Plan and this Agreement, following the Vesting Date, the Participant shall be eligible to receive a payment representing the Participant’s Eligible PSU Amount for the Performance Period. Except as otherwise provided in the Plan and this Agreement, such payment shall be distributed to the Participant or, where applicable, the Participant’s legal representative, as soon as practicable following the Vesting Date and, in any event, prior to December 31 of calendar year following the calendar year in which third Anniversary Date occurs.

 

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Schedule “B”

INCENTIVE COMPENSATION CLAWBACK POLICY

By resolution of the Board of Directors (the “ Board ”) of Encana Corporation (“ Encana ” or the “ Corporation ”), this Policy is effective as of this 22 nd day of October, 2012 (the “ Effective Date ”).

This Policy applies to the President & Chief Executive Officer and each Executive-Vice President of the Corporation and any individual who serves in either such capacity on or following the Effective Date (collectively, the “ Executive ”). References in this Policy to the “Corporation” include, where applicable, any affiliate thereof.

This Policy has been adopted to enhance the Corporation’s alignment with best practices in respect of risk management and executive compensation and shall be, at all times, subject to and interpreted in a manner consistent with applicable laws or the rules of any applicable stock exchange (collectively, “ Applicable Rules ”) .

This Policy applies to “Incentive-Based Compensation” which, for the purposes of this Policy, means compensation relating to the achievement of performance goals or similar conditions, excluding salary, perquisites, benefits and pension entitlements, and including, without limitation, any award or grant of or any eligibility, entitlement or gain of, an Executive under the Corporation’s: (i) High Performance Results Plan, or any other short-term incentive plan; or (ii) Long-Term Incentive (“ LTI ”) program including, without limitation, Employee Stock Option Plan, Employee Stock Appreciation Rights Plan, Performance Share Unit Plan, Restricted Share Unit Plan and Deferred Share Unit Plan, as each may be amended from time to time (including any time-based grants under any such plans). For greater clarity, this Policy shall not apply to any Incentive-Based Compensation awarded, granted or paid to an Executive prior to the Effective Date.

Where:

 

    the Corporation is required to prepare an accounting restatement due to its material non-compliance with any financial reporting requirement under applicable securities laws (the “ Restatement ”), (the date upon which the Corporation is required to prepare such Restatement is hereinafter the “ Restatement Date ”);

 

    the Executive received Incentive-Based Compensation referable to the financial years subject to the Restatement in excess of what the Executive would have been paid under the Restatement (the “ Overcompensation Amount ”); and

 

    the Executive engaged in gross negligence, intentional misconduct or fraud which caused or significantly contributed to the Corporation’s material non-compliance with applicable securities laws which resulted in the requirement for the Restatement;

the Board shall be entitled:

 

    where and to the extent the Overcompensation Amount has been previously paid, transferred or otherwise made available to the Executive, to require the Executive, by written demand, to reimburse the Corporation for the Overcompensation Amount; and

 

   

where all or a portion of the Overcompensation Amount has not been paid, transferred or otherwise made available to the Executive, the right of the Executive to be so paid or have such benefit transferred or otherwise made available to him or her shall, to the extent required to reimburse the Corporation for such Overcompensation Amount, immediately

 

A-5


 

terminate and be forfeited by the Executive and where required, cancelled by the Corporation to such extent and upon such date as may be specified by the Board; and

 

    to the extent the Overcompensation Amount is not immediately recovered upon demand from the Executive, whether via direct reimbursement, forfeiture and/or cancellation, to require a sufficient quantity or value of any compensation owing by the Corporation to the Executive including, without limitation, any unvested or unexercised awards under the LTIs (the “ Outstanding LTIs ”), be immediately withheld and/or irrevocably cancelled by the Corporation to compensate for (or set off the value of same against) the Overcompensation Amount or any unrecovered portion thereof, and to bring any other actions against the Executive which the Board may deem necessary to recover the Overcompensation Amount.

The period of time during which the Corporation shall be entitled to seek recovery of the Overcompensation Amount from the Executive shall be three (3) years from the Restatement Date. Recoupment of Overcompensation Amounts under this Policy shall be initiated by the Corporation at the request of the Board, and all amounts recoverable or payable hereunder shall be paid to the Corporation or as directed by the Board.

If Applicable Rules require the Corporation to adopt a policy or provisions relating to the recoupment or recovery of incentive-based or other compensation based on restated financial statements which are inconsistent with or materially differ from this Policy and the Board adopts such policy or provisions to comply with Applicable Rules (the “ New Policy ”), such New Policy shall replace and supersede this Policy and shall apply to Incentive-Based Compensation granted or awarded to the Executive following the effective date of the New Policy. Subject to Applicable Rules, this Policy shall continue to apply to Incentive-Based Compensation granted or awarded to the Executive prior to the effective date of the New Policy. This Policy may be terminated at any time by the Board.

 

A-6

Exhibit 10.13

 

LOGO

RESTRICTED SHARE UNIT PLAN FOR EMPLOYEES

OF ENCANA CORPORATION

Established with effect from February 8, 2011, and reflective with

amendments made as of February 24, 2015, and February 22, 2016.


Table of Contents

 

Section

       Page  

1.

 

PREAMBLE AND DEFINITIONS

     1   

2.

 

CONSTRUCTION AND INTERPRETATION

     7   

3.

 

EFFECTIVE DATE AND EMPLOYMENT RIGHTS

     7   

4.

 

RSU GRANTS

     8   

5.

 

ACCOUNTS, DIVIDEND EQUIVALENTS AND REORGANIZATION

     9   

6.

 

OPTIONAL FUNDING OF RSU AWARDS

     10   

7.

 

VESTING AND PAYMENT OF RSU AWARDS

     10   

8.

 

CURRENCY

     14   

9.

 

SHAREHOLDER RIGHTS

     14   

10.

 

ADMINISTRATION

     15   

11.

 

ASSIGNMENT

     17   


RESTRICTED SHARE UNIT PLAN FOR EMPLOYEES

OF ENCANA CORPORATION

(Established with effect from February 8, 2011, and reflective with amendments made as of

February 24, 2015, and February 22, 2016)

 

1. PREAMBLE AND DEFINITIONS

 

  1.1 Title .

The Plan described in this document shall be called the “Restricted Share Unit Plan for Employees of Encana Corporation”.

 

  1.2 Purpose of the Plan .

The purposes of the Plan are:

 

  (a) to promote an alignment of interests between employees and shareholders of the Corporation;

 

  (b) to associate a portion of eligible employees’ compensation with the growth and performance of the Corporation over the medium to long-term; and

 

  (c) to attract and retain employees with the knowledge, experience and expertise required by the Corporation.

 

  1.3 Definitions .

 

  1.3.1 Affiliate ” means any corporation, partnership or other entity in which the Corporation, directly or indirectly, has a majority ownership interest.

 

  1.3.2 Anniversary Date ” means, in respect of each RSU grant, each anniversary of the Grant Date.

 

  1.3.3 Applicable Law ” means any applicable provision of law, domestic or foreign, including, without limitation, applicable securities legislation, together with all regulations, rules, policy statements, rulings, notices, orders or other instruments promulgated thereunder, and Stock Exchange Rules.

 

  1.3.4 Blackout Period ” means a trading blackout period imposed by the Corporation under the Corporation’s Securities Trading and Insider Reporting Policy (as amended, supplemented or replaced from time to time);

 

  1.3.5 Board ” means the Board of Directors of the Corporation.

 

  1.3.6 Business Day ” means any day other than a Saturday or a Sunday, a statutory holiday in Alberta or any day on which the principal chartered banks located in Calgary are not open for business during normal banking hours.


Encana Corporation

Restricted Share Unit Plan for Employees

   Page 2

(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015 and February 22, 2016)

 

  1.3.7 Change in Control ” a “Change in Control” shall be deemed to have occurred for purposes of this Plan if:

 

  (a) any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity, or any persons acting jointly or in concert with the foregoing, is or becomes the beneficial owner, directly or indirectly of, securities of the Corporation representing more than 30% of the combined voting power of the Corporation’s then outstanding securities entitled to vote in the election of the directors of the Corporation;

 

  (b) the Corporation shall have disposed of (A) all or substantially all of its assets, such that shareholder approval was required or should have been required to be obtained under the Canada Business Corporations Act , or (B) assets in any 12 month period representing 50% or more of the total assets of the Corporation, the total assets being determined as of the date of the audited financial statements of the Corporation then most recently published;

 

  (c) pursuant to a single election or appointment or a series of elections or appointments over any period from and after the effective date of this Plan (A) those individuals who at the effective date of this Plan constituted the Board, together with (B) any new or additional director or directors whose nomination for election by the Corporation’s shareholders, or whose appointment to the Board by the Board, has been approved by at least 75% of the votes cast by all of the directors then still in office, who either were directors at the effective date of this Plan or whose appointment or nomination for election was previously so approved, cease for any reason to constitute a majority of the Board; or

 

  (d) the Board, by resolution duly adopted by the affirmative vote of a simple majority of the votes cast by the Board, determines that for purposes of this Plan, a Change in Control of the Corporation has occurred.

Securities beneficially owned or controlled or directed by an employee plan or related trust sponsored or maintained by the Corporation or its Affiliates shall not be taken into account in determining whether the threshold percentage in Section 1.3.7(a) above is exceeded.

For the purposes of this Section 1.3.7:

 

  (a) the term “acting jointly or in concert” shall be interpreted in accordance with Section 159 of the Securities Act (Alberta), as amended; and

 

  (b) the term “beneficial ownership” shall be interpreted in accordance with Sections 5 and 6 of the Securities Act (Alberta) and “beneficial owner” shall have a corresponding meaning, except that for purposes of the Plan, options and convertible securities granted by the Corporation to employees, officers or directors shall not be included in determining beneficial ownership or beneficial owner.


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For greater certainty, and except as otherwise provided in Section 1.3.7(b) or Section 1.3.7(d), the sale, disposition or other divestiture of an Affiliate, in whole or in part, shall not constitute a Change in Control for the purposes of this Plan.

 

  1.3.8 Code ” means the United States Internal Revenue Code , as amended from time to time.

 

  1.3.9 Committee ” means the Human Resources and Compensation Committee of the Board or such other committee of the Board, as constituted from time to time, which may be appointed by the Board to, among other things, interpret, administer and implement the Plan, including any corresponding Grant Agreement. Any reference in this Plan or corresponding Grant Agreement to action by the Committee means action by or under the authority of:(i) the Committee or;(ii) if no such Committee has been designated, or such authority has not been delegated by the Board, the Board.

 

  1.3.10 Corporation ” means Encana Corporation and any successor corporation whether by amalgamation, merger or otherwise.

 

  1.3.11 Corporation Policies” means, at a particular time, the applicable policies, plans and practices of the Corporation or an Affiliate, as applicable, which employs the Participant, as published on the Corporation’s or an Affiliate’s, as applicable, internal website or as otherwise communicated to employees of the Corporation or an Affiliate, as applicable from time to time.

 

  1.3.12 Date Employment Ceases ” means:

 

  (i) in the case of voluntary Termination of Employment initiated by the Participant, the last date the Participant is, for the purposes of receiving his regular salary, on the payroll of the Corporation or an Affiliate;

 

  (ii) in the case of involuntary Termination of Employment by the Corporation or an Affiliate for cause (as determined by the Corporation or the Affiliate, as applicable), the date written notification of dismissal from employment is delivered to the Participant;

 

  (iii) in the case of involuntary Termination of Employment by the Corporation or an Affiliate other than for cause (as determined by the Corporation or the Affiliate, as applicable) the date identified in the written notification of termination of employment delivered to the Participant as the “Termination Date” or “Departure Date” and, where both dates are so referred to, the earlier thereof, and, where such date is not identified in the written notification, the date written notification of dismissal from employment is delivered to the Participant;


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  (iv) in the case where the Participant is employed by an Affiliate and for any reason including, without limitation, by reason of the sale, disposition or other divestiture thereof, in whole or in part, such employer ceases to be an Affiliate of the Corporation, the effective date (in the case of a sale, disposition or other divestiture, the closing date of such transaction or series of transactions, as determined by the Corporation) upon which the Participant’s employer ceases to be an Affiliate;

but, for greater certainty, shall not include the date the Participant ceases to be an employee of the Corporation or an Affiliate upon the Participant’s death or Retirement, or the date the Participant commences a Period of Absence or an Unpaid Leave of Absence in accordance with the provisions hereof.

 

  1.3.13 Date of Retirement ” means the last day the Participant is, for the purposes of receiving his regular salary, on the payroll of the Corporation or an Affiliate immediately prior to the date the Participant commences Retirement.

 

  1.3.14 Disability ” means the Participant’s physical or mental incapacity that prevents the Participant from substantially fulfilling his duties and responsibilities on behalf of the Corporation or an Affiliate, and in respect of which the Participant commences receiving disability benefits under the Corporation’s or an Affiliate’s short-term or long-term disability plan, as applicable, in respect of such incapacity.

 

  1.3.15 Dividend Equivalent RSU ” has the meaning set out in Section 5.2.

 

  1.3.16 Family Leave ” means, a period during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered to be on family leave and does not provide employment services to the Corporation or an Affiliate.

 

  1.3.17 Grant Agreement ” means an agreement between the Corporation and the Participant under which a RSU is granted, as contemplated by Section 4.1, together with such schedules, amendments, deletions or changes thereto as are permitted under the Plan, subject to the terms and conditions of such Grant Agreement and the Plan.

 

  1.3.18

Grant Date ” means the effective date of a grant of RSUs to a Participant by the Corporation or an Affiliate, as applicable, as stated in the Participant’s applicable Grant Agreement. Where the Corporation determines to grant any RSUs on a date which is within a Blackout Period or where, for any reason: (i) the grant of RSUs falls on a day that is within a Blackout Period; or (ii) the Market Value of the grant of RSUs would be calculated using a Trading Day that is within a Blackout Period, then the Grant Date of any such RSUs shall automatically occur and be effective on the sixth Trading Day immediately following the end of such Blackout Period to permit the Market Value of such RSUs to be determined based on Trading Days which occur immediately following the end of any such


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  Blackout Period.

 

  1.3.19 Market Value ” means, with respect to any particular date, the volume-weighted average (rounded to two decimal places) of the trading price per Share on the applicable Stock Exchange during the immediately preceding five (5) Trading Day period prior to that particular date.

 

  1.3.20 Military Leave ” means a period during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered to be on a military leave, and does not provide employment services to the Corporation or an Affiliate.

 

  1.3.21 Paid Leave of Absence ” means in respect of a Participant, a period of time during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered to be on an approved leave of absence and continues to receive his salary from, but does not provide employment services to, the Corporation or an Affiliate.

 

  1.3.22 Participant ” means such employee of the Corporation or an Affiliate as the Committee may designate from time to time as eligible to participate in the Plan.

 

  1.3.23 Period of Absence ” means, with respect to a Participant, a period of time throughout which the Participant is on a Family Leave, Military Leave, Paid Leave of Absence, an unpaid leave of absence of 31 days or less approved by the Corporation or Affiliate, as applicable, or is experiencing a Disability, but does not include a period of time throughout which the Participant is on an Unpaid Leave of Absence.

 

  1.3.24 Plan ” means this Restricted Share Unit Plan for Employees of Encana Corporation, including any schedules or appendices hereto, as amended from time to time.

 

  1.3.25 RSU ” means a restricted share unit granted to a Participant under the Plan that is represented by a bookkeeping entry on the books of the Corporation or an Affiliate, the value of which on any particular date (other than for the purposes of the Grant Date or the Vesting Date) shall be equal to the closing price per Share on the applicable Stock Exchange on the immediately preceding Trading Day.

 

  1.3.26 RSU Account ” has the meaning set out in Section 5.1.

 

  1.3.27 Retirement ” means the early or normal retirement of the Participant from employment with the Corporation or an Affiliate, as applicable, in accordance with the Corporation Policies.

 

  1.3.28 Section 409A Amount ” means any cash or Shares provided or to be provided pursuant to the Plan or a Grant Agreement that: (a) are provided or are to be provided to a U.S. Participant; and (b) constitute a deferral of compensation subject to section 409A of the Code.


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  1.3.29 Share ” means a common share in the capital of the Corporation and such other share as may be substituted for it as a result of amendments to the articles of the Corporation, arrangement, re-organization or otherwise, including any rights that form a part of the common share or substituted share.

 

  1.3.30 Stock Exchange ” means, in respect of a RSU, the Toronto Stock Exchange or the New York Stock Exchange as specified in the Participant’s respective Grant Agreement relating to such RSU or, if the Shares are not listed on the Toronto Stock Exchange or the New York Stock Exchange, as applicable, such other stock exchange on which the Shares are listed, or if the Shares are not listed on any stock exchange, then on the over-the-counter market.

 

  1.3.31 Stock Exchange Rules ” means, in respect of a RSU, the applicable rules of the particular Stock Exchange pertaining to such RSU, as specified in the Participant’s Grant Agreement, upon which the Shares are listed.

 

  1.3.32 Termination of Employment ” means an event by which the Participant ceases to be an employee of the Corporation or an Affiliate, as applicable, but, for greater certainty, shall not include an event whereby the Participant ceases to be an employee of the Corporation or an Affiliate, as applicable, upon the Participant’s death or Retirement or where the Participant commences a Period of Absence or an Unpaid Leave of Absence in accordance with the provisions hereof.

 

  1.3.33 Trading Day ” means any date on which the applicable Stock Exchange is open for the trading of Shares and on which Shares are actually traded.

 

  1.3.34 Trust Fund ” means one or more trust funds, as specified by the Committee, as may be established by the Corporation or an Affiliate, as applicable, for the purpose of funding awards of RSUs granted to Participants pursuant to the Plan.

 

  1.3.35 Trustee ” means such person or persons who is or are independent from and not affiliated with the Corporation or an Affiliate as may from time to time be appointed by the Corporation as trustee of the Trust Fund(s).

 

  1.3.36 Unpaid Leave of Absence ” means in respect of a Participant, a period of time during which, pursuant to the Corporation Policies or Applicable Law, the Participant is considered by the Corporation or an Affiliate, as applicable, to be on an approved leave of absence and does not continue to receive his salary from, or provide employment services to, the Corporation or an Affiliate, as applicable, which, for the purposes of the Plan, shall be deemed to commence on the 32 nd day following the day on which the Participant commences such approved, unpaid leave, as communicated in writing to the Participant by the Corporation or an Affiliate, as applicable, in accordance with the Corporation Policies or Applicable Law.


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  1.3.37 U.S. Participant ” means a Participant who is a citizen or permanent resident of the United States for purposes of the Code or a Participant for whom compensation subject to deferral under this Plan would otherwise be subject to United States federal income taxation under the Code.

 

  1.3.38 Vested RSUs ” has the meaning set out in Section 7.1.

 

  1.3.39 “Vested RSU Value” means with respect to each Vested RSU that is settled in cash, as determined by the Committee, the Market Value determined as of the applicable Vesting Vested RSU is settled in Shares, as determined by the Committee, means one Share for each whole Vested RSU.

 

  1.3.40 Vesting Date ” means, in respect of a grant of RSUs, the date specified in the Participant’s applicable Grant Agreement upon which the Participant’s RSUs shall vest and become payable in accordance with Section 7, subject to the terms and conditions of the Plan and the applicable Grant Agreement.

 

2. CONSTRUCTION AND INTERPRETATION

 

  2.1 Gender, Singular, Plural . In the Plan, references to the masculine include the feminine; and references to the singular shall include the plural and vice versa, as the context shall require.

 

  2.2 Governing Law . The Plan shall be governed and interpreted in accordance with the laws of the Province of Alberta and any actions, proceedings or claims pertaining in any manner or respect to the Plan, including without limitation, an applicable Grant Agreement or a RSU grant in respect thereof, shall be commenced in the courts of the Province of Alberta.

 

  2.3 Severability . If any provision or part of the Plan is determined to be void or unenforceable in whole or in part, such determination shall not affect the validity or enforcement of any other provision or part thereof.

 

  2.4 Headings, Sections . Headings wherever used herein are for reference purposes only and do not limit or extend the meaning of the provisions herein contained. A reference to a section or schedule shall, except where expressly stated otherwise, mean a section or schedule of the Plan, as applicable.

 

3. EFFECTIVE DATE AND EMPLOYMENT RIGHTS

 

  3.1 Effective Date . The Corporation is establishing the Plan effective February 8, 2011.

 

  3.2

No Employment Rights . Nothing contained in the Plan shall be deemed to give any person the right to be retained as an employee or an officer of the Corporation or of an Affiliate. For greater certainty, a period of notice, if any, (whether pursuant to statute or common law) or payment in lieu thereof, arising


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  upon or attributed to a Termination of Employment, whether wrongful or otherwise, shall not be considered as extending the period of employment or the active service of a Participant with the Corporation or an Affiliate beyond the Date Employment Ceases.

 

4. RSU GRANTS

 

  4.1 Annual Grant of RSUs. Each Participant may receive in respect of any calendar year, a grant of RSUs in such number and subject to such terms and conditions as the Committee may specify. Each RSU grant to a Participant shall be governed by and subject to the terms and conditions of this Plan and the applicable Grant Agreement.

 

  4.2 Grant Price. The applicable grant price for each RSU granted to a Participant hereunder shall be fixed by the Committee effective as of the Grant Date, but shall not be less than the Market Value on the applicable Stock Exchange.

 

  4.3 Grant Agreement. Each RSU grant and each Participant’s participation in the Plan shall be evidenced by a Grant Agreement between the Corporation and the Participant in the form approved by the Committee. The Grant Agreement shall specify, at the time RSUs are granted to the Participant, the basis upon which such RSUs will become Vested RSUs and valued, whether such RSUs (and Dividend Equivalent RSUs relating thereto) are, upon becoming Vested RSUs pursuant to Section 7, to be payable to the Participant on the Vesting Date in Canadian currency or United States currency, and the applicable Stock Exchange to be used to determine the Market Value of such RSUs, any other Share price or other methodology used to determine the value of such RSUs, and the applicable Vesting Date.

 

  4.4 RSUs . Subject to the terms and conditions of the Plan, and the applicable Grant Agreement, each RSU will give a Participant the right to receive a payment in cash or in Shares, as determined by the Committee, in an amount and on such date or dates, including the Vesting Date, as may be determined in accordance with the terms of the Plan and the applicable Grant Agreement. For greater certainty, a Participant shall have no right to receive a cash payment or Shares with respect to any RSUs that do not become Vested RSUs pursuant to Section 7, as applicable. Further, unless otherwise expressly authorized by this Plan (including, without limitation, Section 7) or the applicable Grant Agreement, a Participant shall have no right to receive a cash payment or Shares if the Participant is not actively employed by the Corporation or an Affiliate, as applicable, on the Vesting Date.

 

  4.5 Other Terms and Conditions . Subject to the terms of the Plan, the Committee or the Board may determine other terms or conditions of, or take actions relating to, any RSUs, or any grant thereof, including:

 

  (a) any additional conditions with respect to the vesting of RSUs, in whole or in part, or the payment of cash or provision of Shares under the Plan;

 

  (b) restrictions on the resale of Shares, including escrow arrangements;


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  (c) exercising such discretion as may be set out in the Plan or a particular Grant Agreement; and

 

  (d) any other terms and conditions the Committee may, in its discretion, determine,

which other terms or conditions shall be set out in the Grant Agreement.

Except as otherwise provided in Section 10.8, the Committee may, in its discretion, after the Grant Date of a RSU, waive any term or condition in respect of such RSU or determine that it has been satisfied.

 

  4.6 Payment Date . For greater certainty, and notwithstanding any other provision of the Plan or an applicable Grant Agreement, no term or condition imposed under this Plan or a Grant Agreement may have the effect of causing payment of the value of a RSU to a Participant, or his legal representative, to occur after December 31 of the third calendar year following the calendar year in which the Grant Date occurs.

 

  4.7 No Certificates . No share or other certificates shall be issued with respect to RSUs.

 

5. ACCOUNTS, DIVIDEND EQUIVALENTS AND REORGANIZATION

 

  5.1 RSU Account . An account, called a “RSU Account”, shall be maintained by the Corporation for each Participant and will be credited with such notional grants of RSUs as may be received by a Participant from time to time pursuant to Sections 4.1 and 5.2. For clarity, unless otherwise expressly authorized by this Plan (including, without limitation, Section 7) or the applicable Grant Agreement, the Participant shall have no entitlement or right to any RSUs granted, credited to or recorded in the Participant’s RSU Account, whether expressed in RSUs or dollar value form, prior to the Vesting Date if the Participant is not actively employed by the Corporation or an Affiliate, as applicable, on the Vesting Date.

 

  5.2 Dividend Equivalent RSUs . In the event cash dividends are paid by the Corporation on the Shares, additional RSUs shall be credited to the Participant’s RSU Account in accordance with this Section 5.2 (“Dividend Equivalent RSUs”). The number of such Dividend Equivalent RSUs (including fractional RSUs) and the date upon which such Dividend Equivalent RSUs are credited to the Participant’s RSU Account shall be determined by the Corporation in accordance with the applicable Grant Agreement. Except where provided otherwise in a Grant Agreement, Dividend Equivalent RSUs shall vest and be paid to the Participant at the same time as the RSUs to which they relate.

 

  5.3

Adjustments . In the event of any stock dividend, stock split, combination or exchange of shares, capital reorganization, consolidation, spin-off or other distribution (other than normal cash dividends) of Corporation assets to shareholders, or any other similar changes affecting the Shares, proportionate adjustments to reflect such change or changes may be made with respect to the number of RSUs outstanding under the Plan, or securities into which the Shares


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  are changed or are convertible or exchangeable may be substituted for Shares under this Plan, on a basis proportionate to the number of RSUs in the Participant’s RSU Account on some other appropriate basis, all as determined by the Board in its discretion.

 

6. OPTIONAL FUNDING OF RSU AWARDS

 

  6.1 Contributions to Trust Fund . Except as otherwise provided in Section 10.8, the Corporation may, in its sole discretion, from time to time, on its own behalf and on behalf of such of its Affiliates as employ Participants, or any Affiliate may, make contributions to one or more Trust Funds in such amounts and at such times as may be specified by the Committee or the Board for the purpose of funding, in whole or in part, awards of RSUs which become payable to Participants pursuant to the Plan. For clarity, this Section 6 does not obligate the Corporation or any Affiliate to create a Trust Fund, nor to make contributions to a Trust Fund in any amounts or at all, nor does it require the funding in whole or in part of any award of RSUs granted under this Plan.

 

  6.2 Share Purchases . Where applicable, any purchases of Shares by the Trustee or otherwise pursuant to the Plan shall be made on the open market by a broker designated by the Trustee who is independent of the Corporation in accordance with Stock Exchange Rules and who is a member of the Stock Exchange. Subject to the foregoing part of this Section 6.2, any such designation may be changed from time to time. For clarity, this Section 6 does not obligate the Corporation or any Affiliate to purchase shares for the purposes of funding or settling, in whole or in part, awards of RSUs which may become payable to Participants pursuant to the Plan.

 

7. VESTING AND PAYMENT OF RSU AWARDS

 

  7.1 Vesting of RSUs. Subject to Sections 7.3, 7.4, and 7.5, RSUs shall become Vested RSUs on the Vesting Date(s) set forth in the applicable Grant Agreement. Except where the context requires otherwise, each RSU which vests pursuant to this Section 7 shall be referred to for the purposes of the Plan and the applicable Grant Agreement as a “Vested RSU”. RSUs which do not become Vested RSUs in accordance with this Section 7 shall be forfeited by the Participant and the Participant will have no further right, title or interest in such RSUs. In such event, the Participant hereby waives any and all claims and/or rights to compensation or damages in consequence of the Participant’s Termination of Employment (whether lawfully or unlawfully, wrongful or otherwise) or otherwise for any reason insofar as these rights arise or may arise from the Participant ceasing to have rights to receive any cash payment or Shares in respect of RSUs granted under the Plan or any applicable Grant Agreement pursuant to this Section 7.

 

  7.2

Payment in Cash or Shares. Subject to Sections 7.3, 7.4 and 7.5, each Participant shall be entitled to receive in cash or in Shares (or a combination thereof), as determined by the Committee, a payment or settlement in Shares equal to the Vested RSU Value in respect of each Vested RSU credited to the Participant’s RSU Account on the applicable Vesting Date (rounded up to the


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  nearest whole number of RSUs) relating to a particular grant under Section 4.1, as determined pursuant to Section 7.1. Except as otherwise provided in Sections 7.3, 7.4, 7.5 and 10.8 and/or the applicable Grant Agreement(s), the cash or Shares in the amount determined pursuant to this Section 7.2 shall be paid or distributed to the Participant or his legal representative, as applicable, as soon as practicable following the applicable Vesting Date(s) set forth in the applicable Grant Agreement(s) and, in any event, prior to December 31 of the third calendar year following the calendar year in which the Grant Date occurs, provided the Participant remains actively employed with the Corporation or an Affiliate, as applicable, on each such date.

 

  7.3 Death, Retirement, Period of Absence or Unpaid Leave of Absence.

 

  7.3.1 Death. Unless otherwise determined by the Committee, in the event the Participant ceases to be an employee of the Corporation or an Affiliate, as applicable, by reason of the Participant’s death, the following shall apply:

 

  (a) Where the Participant’s date of death occurs on a date that is prior to the date the Participant attains the age of 60 years, then:

 

  (i) All Vested RSUs credited to the Participant’s RSU Account as of the Participant’s date of death, if any, if not already paid or distributed, shall be paid or distributed to the Participant’s legal representative in accordance with Section 7.2; and

 

  (ii) Unless otherwise determined by the Committee, in the event of the Participant’s death prior to the Vesting Date relating to a grant of RSUs under Section 4.1, RSUs granted to the Participant prior to the Participant’s date of death shall vest and become payable to the Participant’s legal representative on the applicable Vesting Date in accordance with Section 7.2, in proportion to the number of calendar months (rounded up to the nearest whole month) from the applicable Grant Date to the Participant’s date of death.

 

  (b) Where the Participant’s date of death occurs on a date following the date that the Participant attains the age of 60 years, then:

 

  (i) All Vested RSUs credited to the Participant’s RSU Account as of the Participant’s date of death, if any, if not already paid or distributed, shall be paid or distributed to the Participant’s legal representative in accordance with Section 7.2;

 

  (ii) Unless otherwise determined by the Committee, RSUs granted to the Participant prior to the Participant’s date of death shall vest and become payable to the Participant’s legal representative on the applicable Vesting Date in accordance with Section 7.2.

 

  (c) For clarity, no additional RSUs (whether pursuant to Section 4.1 or in the form of Dividend Equivalent RSUs) shall be granted to the Participant following the Participant’s date of death.


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  7.3.2 Retirement. Unless otherwise determined by the Committee, in the event the Participant ceases to be an employee of the Corporation or an Affiliate by reason of the Participant’s Retirement, the following shall apply:

 

  (a) Where the Participant’s Date of Retirement occurs on a date that is prior to the date the Participant attains the age of 60 years, then:

 

  (i) All Vested RSUs credited to the Participant’s RSU Account as of the Participant’s Date of Retirement, if any, if not already paid or distributed, shall be paid or distributed to the Participant in accordance with Section 7.2; and

 

  (ii) Unless otherwise determined by the Committee, in the event of the Participant’s Retirement prior to the Vesting Date relating to a grant of RSUs under Section 4.1, RSUs granted to the Participant prior the Participant’s Date of Retirement shall vest and become payable to the Participant on the applicable Vesting Date in accordance with Section 7.2, in proportion to the number of calendar months (rounded up to the nearest whole month) from the applicable Grant Date to the Participant’s Date of Retirement.

 

  (b) Where the Participant’s Date of Retirement occurs on a date that is on or after the date the Participant attains the age of 60 years, then:

 

  (i) All Vested RSUs credited to the Participant’s RSU Account as of the Participant’s Date of Retirement, if any, if not already paid or distributed, shall be paid or distributed to the Participant in accordance with Section 7.2;

 

  (ii) Unless otherwise determined by the Committee, RSUs granted to the Participant prior to the Participant’s Date of Retirement shall vest and become payable to the Participant on the applicable Vesting Date in accordance with Section 7.2.

 

  (c) For clarity, no additional RSUs (whether pursuant to Section 4.1 or in the form of Dividend Equivalent RSUs) shall be granted to the Participant following his Date of Retirement.

 

  7.3.3 Period of Absence. Subject to the provisions of Sections 7.3.1, 7.3.2 and 7.4 and unless otherwise determined by the Committee, in the event of a Participant’s Period of Absence, RSUs credited to the Participant’s RSU Account immediately prior to such Period of Absence (and any related Dividend Equivalent RSUs) shall continue to become Vested RSUs in accordance with Section 7.1 and the Participant shall be entitled to receive a payment relating to such Vested RSUs determined in accordance with Section 7.2.

 

  7.3.4

Unpaid Leave of Absence. Unless otherwise determined by the Committee, in the event of a Participant’s Unpaid Leave of Absence, RSUs shall not become Vested RSUs during the Participant’s Unpaid


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(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015 and February 22, 2016)

 

  Leave of Absence and the provisions of this Section 7.3.4 shall be applicable. The Participant shall only become entitled to have his RSUs become Vested RSUs on the date when the Participant’s Unpaid Leave of Absence ends and the Participant returns to active employment with the Corporation or an Affiliate. If the Participant does not return to active employment with the Corporation or an Affiliate from the Unpaid Leave of Absence, all unvested RSUs shall not vest and shall be forfeited and cancelled and the Participant waives any and all right to compensation or damages in consequence of the Participant ceasing to have rights or be entitled to receive any cash or Shares under the Plan pursuant to this Section 7.3.4. Notwithstanding anything contained herein to the contrary, in no event shall this Section 7.3.4 cause a Section 409A Amount to be paid in a calendar year later than the calendar year such Section 409A Amount would have been paid had the Participant not been on an Unpaid Leave of Absence. For greater certainty, and notwithstanding any other provision in the Plan or a Grant Agreement, in no event shall this Section 7.3.4 cause a Section 409A Amount to be paid in a calendar year later than the calendar year such Section 409A Amount would have been paid had the Participant not been on an Unpaid Leave of Absence and instead such Section 409A Amount shall either be forfeited or paid on or before December 31 of the calendar year in which such amount would have been paid had the Participant not been on an Unpaid Leave of Absence, as determined by the Committee.

 

  7.4 Termination of Employment . Unless otherwise determined by the Committee, a Participant shall not be entitled to any further grant or vesting of RSUs and the Participant shall not be entitled to any cash, Shares or other payment in respect of any unvested RSUs following a Termination of Employment. RSUs (including any related Dividend Equivalent RSUs) which do not vest in accordance with Section 7 prior to the Date Employment Ceases shall be cancelled without payment. The Participant waives any and all right to compensation or damages which may arise or may be deemed to arise in consequence of the Participant’s Termination of Employment (whether lawfully or unlawfully) or otherwise for any reason whatsoever insofar as those rights arise or may arise from the Participant ceasing to have rights or be entitled to receive any cash, Shares or other payment under the Plan pursuant to this Section 7.4. Any Vested RSUs credited to a Participant’s RSU Account as of the Date Employment Ceases shall be payable in accordance with Section 7.2.

 

  7.5 Change in Control .

 

  7.5.1 Vesting. Notwithstanding any other provision of the Plan, unless otherwise specified by the Board or the Committee with respect to any portion of a RSU that does not constitute a Section 409A Amount, in the event of a Change in Control, all RSUs credited to a RSU Account shall become Vested RSUs immediately prior to the time of such Change in Control.

 

  7.5.2

Payment. As soon as practicable following a Change in Control, (a) to the extent a Participant’s Vested RSUs are expressed in dollar value form


Encana Corporation

Restricted Share Unit Plan for Employees

   Page 14

(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015 and February 22, 2016)

 

  in the RSU Account, the Participant shall receive a cash payment equal to such dollar value; and (b) to the extent a Participant’s RSUs are expressed in RSU form in the RSU Account, the Participant shall receive in cash or in Shares (or a combination thereof), as may be determined by the Board or the Committee, a payment equal to the number of Vested RSUs (including as determined pursuant to Section 7.5.1) credited to the Participant’s RSU Account at the time of the Change in Control (rounded up to the nearest whole number of Vested RSUs) multiplied by the price at which the Shares are valued for the purpose of the transaction or series of transactions giving rise to the Change in Control, or if there is no such transaction or transactions, the simple average of the closing price per Share on the applicable Stock Exchange on each day in the thirty day period ending on the date of the Change in Control, provided, however, that where a Change in Control occurs and no Shares are distributed and no cash payments are made to a Participant pursuant to this subclause (b) within thirty days following the Change in Control, the Corporation shall cease to have the discretion to provide the Participant with Shares and shall be required to pay (or cause an Affiliate to pay) to the Participant in respect of such Vested RSUs the amount determined in accordance with the cash payment formula set out in subclause (b) above.

 

  7.5.3 Payment of Section 409A Amounts. With respect to any Section 409A Amount (i) if the Change in Control constitutes a change in the ownership or effective control of a corporation, or a change in the ownership of a substantial portion of the assets of a corporation, as such terms are used in Section 409A of the Code and related regulations (a “409A Change of Control”), such Section 409A Amount shall be paid in accordance with Section 7.5.2, but in all events within 90 days after the date of the Change in Control, and (ii) if the Change in Control does not constitute a 409A Change of Control, such Section 409A Amount shall in all events be paid during the calendar year in which such amounts would have been paid had there been no Change in Control.

 

8. CURRENCY

 

  8.1 Currency . Except where expressly provided otherwise, all references in the Plan to currency refer to lawful Canadian currency.

 

9. SHAREHOLDER RIGHTS

 

  9.1 No Rights to Shares . RSUs are not Shares and neither the grant of RSUs nor the fact that Shares may be acquired by, or provided from, a Trust Fund or otherwise in satisfaction of Vested RSUs will entitle a Participant to any shareholder rights, including, without limitation, voting rights, dividend entitlement or rights on liquidation.


Encana Corporation

Restricted Share Unit Plan for Employees

   Page 15

(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015 and February 22, 2016)

 

10. ADMINISTRATION

 

  10.1 Committee . Unless otherwise determined by the Board, or as specified in Section 10.6, the Plan shall be administered by the Committee.

 

  10.2 Compliance with Laws and Policies . The Corporation’s issuance of any RSUs and its obligation to make any payments or discretion to provide any Shares hereunder is subject to compliance with Applicable Law. Each Participant shall acknowledge and agree (and shall be conclusively deemed to have so acknowledged and agreed by participating in the Plan) that the Participant will, at all times, act in strict compliance with Applicable Law and all other laws and any policies of the Corporation applicable to the Participant in connection with the Plan including, without limitation, furnishing to the Corporation all information and undertakings as may be required to permit compliance with Applicable Law. Such laws, regulations, rules and policies shall include, without limitation, those governing “insiders” or “reporting issuers” as those terms are construed for the purposes of applicable securities laws, regulations and rules.

 

  10.3 Delegation . The Committee may also delegate to any director, officer or employee of the Corporation such duties and powers relating to the Plan or in respect of an applicable Grant Agreement as it may see fit.

 

  10.4 Withholdings . Notwithstanding any other provision in this Plan, to ensure that the Corporation, an Affiliate or a Trust Fund, as applicable, will be able to comply with the applicable provisions of any federal, provincial, state or local law relating to the withholding of tax or other required deductions, including on the amount, if any, includable in the income of a Participant, the Corporation, or an Affiliate, shall withhold or cause to be withheld from any amount payable to a Participant, either under this Plan, or otherwise, such amount, or may require the sale of such number of Shares by the Trustee, as may be necessary to permit the Corporation, the Affiliate or a Trust Fund, as applicable, to so comply.

 

  10.5 No Additional Rights . Neither designation of an employee as a Participant nor the grant of any RSUs to any Participant at any time entitles any person to the grant, or any additional grant, as the case may be, of any RSUs under the Plan.

 

  10.6 Amendment, Termination . The Plan may be amended or terminated at any time by the Board in whole or in part. No amendment of the Plan shall, without the consent of the Participants affected by the amendment, or unless required by Applicable Law, adversely affect the rights accrued to such Participants with respect to RSUs granted prior to the date of the amendment. Notwithstanding any provision in the Plan to the contrary, the Plan may be amended to prevent any adverse tax results under Section 409A of the Code.

 

  10.7 Administration Costs . The Corporation will be responsible for all costs relating to the administration of the Plan. For greater certainty and unless otherwise determined by the Committee, a Participant shall be responsible for brokerage fees and other administration or transaction costs relating to the transfer, sale or other disposition of Shares on behalf of the Participant that have been previously distributed to or provided to the Participant pursuant to the Plan.


Encana Corporation

Restricted Share Unit Plan for Employees

   Page 16

(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015 and February 22, 2016)

 

  10.8 Section 409A.

 

  10.8.1 Section 409A Amounts . To the extent applicable to any Section 409A Amount, it is intended that the Plan and any Grant Agreement or other agreement that amends or otherwise affects such Section 409A Amount will comply with Section 409A of the Code and any regulations and guidance issued thereunder, and the Plan and any such Grant Agreement or other agreement shall be interpreted accordingly. The provisions of this Section 10.8 shall apply to any Section 409A Amount notwithstanding anything in the Plan or a Grant Agreement to the contrary. In no event shall a Section 409A Amount be distributed at a time or pursuant to an event that is not specified in Section 409A(a)(2) of the Code.

 

  10.8.2 Retirement or Termination of Employment . The Plan does not provide for payment to occur upon (or on a specified date or within a specified period following) a Termination of Employment or Retirement; however, to the extent any Grant Agreement or other agreement provides that any Section 409A Amount is to be distributed upon (or on a specified date or within a specified period following) the date of a U.S. Participant’s Termination of Employment or Retirement, such U.S. Participant shall be deemed to have experienced a Termination of Employment or Retirement when (and only when) a separation from service (within the meaning of Treasury Regulation Section 1.409A-1(h)) has occurred.

 

  10.8.3 Specified Employees . If a U.S. Participant is a “specified employee” for purposes of Section 409A of the Code, no payment, distribution or other benefit provided pursuant to a Section 409A Amount that is required to be delayed to comply with Section 409A(a)(2)(B)(i) of the Code shall be provided before the date that is six months after the date of such separation from service (or, if earlier than the end of such six-month period, the date of death of the Participant). Any payment, distribution or other benefit that is delayed pursuant to the prior sentence shall be paid on the first Business Day following the six-month anniversary of the Participant’s separation from service or date of death, as the case may be.

 

  10.8.4 Time of Payment . In no event shall a Participant be entitled to designate the taxable year in which any Section 409A Amount is to be paid. Except with respect to payments following a Change in Control pursuant to Section 7.5.3, Shares or cash to be paid in respect of any Section 409A Amount pursuant to Vested RSUs shall in all events be paid within the calendar year in which the applicable Vesting Date set forth in the applicable Grant Agreement(s) occurs, which for purposes of Section 409A Amounts shall always be defined as occurring within a single calendar year. Payments with respect to Dividend Equivalent RSUs shall be paid at the same time as the RSU to which such Dividend Equivalent RSU relates.

 

  10.8.5

No Acceleration of Payments . In no event shall a change in a period of grant, a waiver, amendment, or other modification of any terms or


Encana Corporation

Restricted Share Unit Plan for Employees

   Page 17

(Established with effect from February 8, 2011, and reflective of amendments as of February 24, 2015 and February 22, 2016)

 

  conditions of a RSU or any determination by the Committee or the Board, as applicable in each case, that occurs after the Grant Date cause any Section 409A amount to be paid in a calendar year that is different than the calendar year in which payment would have occurred but for such change to the period of grant, waiver, amendment, modification, exercise of discretion, or determination.

 

  10.8.6 Trusts . Notwithstanding Section 6.1 hereof, no funds with respect to any Section 409A Amount shall be set aside in a trust located outside the United States or in any other trust or arrangement described under Section 409A(b)(1) of the Code.

 

11. ASSIGNMENT

 

  11.1 Assignment . The assignment or transfer of the RSUs, or any other benefits under this Plan, shall not be permitted other than by operation of law.

* * * *

Exhibit 10.14

RESTRICTED SHARE UNIT PLAN

FOR EMPLOYEES OF ENCANA CORPORATION

[CANADIAN EXECUTIVE] 20      RSU GRANT AGREEMENT

 

Participant Name:    ###PARTICIPANT_NAME###
Grant Date:    ###GRANT_DATE###
Number of RSUs    ###TOTAL_AWARDS###
Currency of RSUs:    CAD
Stock Exchange:    TSX
Vesting Date:    ###VEST_SCHEDULE_TABLE###

This Grant Agreement including Schedule “A”” hereof (collectively, this “ Agreement ”) is between you, the eligible employee of the Corporation or its Affiliate (“ Participant ” or “ You ”) and Encana Corporation or an Affiliate thereof (the “ Corporation ”).

WHEREAS the Corporation has established the Restricted Share Unit Plan for Employees of Encana Corporation (the “ Plan ”);

AND WHEREAS You are an employee of the Corporation and the Board of Directors of the Corporation (the “Board”) has authorized the granting to You of certain Restricted Share Units (“ RSUs ”) in such number as set out above and as further described in this Agreement pursuant to and in accordance with the provisions of the Plan;

NOW THEREFORE, THIS AGREEMENT WITNESSETH that in consideration of other good and valuable consideration including, among other things, the employment services rendered by You to the Corporation or its Affiliate, the receipt and sufficiency of which is hereby acknowledged by the parties, it is agreed by and between the parties hereto as follows:

 

1. The terms and conditions of the Plan are hereby incorporated by reference as terms and conditions of this Agreement. All capitalized terms used in this Agreement, unless otherwise defined in this Agreement, shall have the meanings set out in the Plan.

 

2. Participation in the Plan is voluntary on Your part.

 

3. You hereby confirm that You have received and reviewed a copy of the Plan and agree to be bound by its terms and conditions.

 

4. Effective as of the Grant Date above, the Corporation hereby grants to You, in accordance with and subject to the terms and conditions of the Plan and this Agreement, RSUs in such number as set out above and subject to such Vesting Date as specified above and such other terms or conditions as the Committee or the Board, as applicable, may determine.

 

5. RSUs granted to You on the Grant Date will only become Vested RSUs and be payable on the Vesting Date specified above subject to the terms and conditions set out in the Plan (including, without limitation, Section 7 thereof), and this Agreement.

 

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6. Dividend Equivalent RSUs shall be determined separately with respect to the RSUs applicable to each grant under Section 4.1 of the Plan. Subject to the terms and conditions of the Plan (including, without limitation, Section 5.2 thereof) and this Agreement, where cash dividends are paid by the Corporation on the Shares between the Grant Date and the Vesting Date in respect of a particular grant under Section 4.1 of the Plan, the Corporation shall credit additional Dividend Equivalent RSUs to the Participant’s RSU Account. The number of such Dividend Equivalent RSUs (including fractional RSUs) to be credited in respect of each dividend record date will be calculated by dividing the cash dividends that would have been paid to the Participant if the RSUs applicable to the particular grant under Section 4.1 of the Plan (and any previously granted Dividend Equivalent RSUs related to such RSUs) as at such dividend record date had been Shares by the closing price per Share on the applicable Stock Exchange on the immediately preceding Trading Day of the dividend payment date for such cash dividends. Dividend Equivalent RSUs shall vest and be paid at the same time as the RSUs to which they relate.

 

7. The determination by the Committee or the Board, as applicable, of any question which may arise as to the interpretation and implementation of the Plan, this Agreement or any RSUs granted pursuant to the Plan or hereunder shall be final and binding on You and all other persons claiming or deriving rights through You.

 

8. The Corporation’s grant of any RSUs or any obligation to make any payments under the Plan is subject to compliance with Applicable Law. As a condition of participating in the Plan, You hereby agree to comply with all such Applicable Law and agree to furnish to the Corporation all information and undertakings as may be required to permit compliance with such Applicable Law. Without limiting the generality of the foregoing, You hereby acknowledge and agree that any payment or settlement to You in respect of Vested RSUs shall be subject to such taxes and other withholdings or deductions as may be required by Applicable Law.

 

9. The Plan contains specific conditions and provisions including, without limitation, in Section 7 thereof, with respect to determining whether RSUs may become Vested RSUs and governing Your rights with respect to the Plan and this Agreement during a Period of Absence, Unpaid Leave of Absence, upon a Termination of Employment, upon a Change in Control and/or in the event of Your Retirement or Death. Without restricting the generality of Section 3 hereof, You further agree that You have read all of the provisions of the Plan and this Agreement and agree to be bound by them.

 

10. Upon the occurrence of a Termination of Employment of You, pursuant to Section 7.4 of the Plan, You shall not be entitled to any further grant or vesting of RSUs, nor shall You be entitled to any cash, Shares or other payment (as applicable) in respect of any RSUs which are unvested on or prior to the Date Employment Ceases. You agree You have read these provisions of the Plan and agree to be bound by them.

 

11. Neither the Plan nor any action taken thereunder shall interfere with the right of the Corporation or any Affiliate which employs You to terminate Your employment at any time. Neither shall any period of notice, if any (whether pursuant to statute or common law), nor any payment in lieu thereof, upon a Termination of Employment of You (whether wrongful or otherwise) be considered or deemed to extend the period of Your employment or, for greater certainty, the Date Employment Ceases, for the purposes of the Plan or this Agreement including, without limitation, for the purposes of the vesting of any RSUs, or any payment in respect thereof. For greater certainty, all vesting of RSUs granted to You hereunder shall immediately cease as of the Date Employment Ceases.

 

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12. You acknowledge and agree that RSUs granted to You hereunder (and the grant thereof) and any payment in respect thereof are expressly subject to the terms and conditions of the Corporation’s “Incentive Compensation Clawback Policy”, attached hereto as Schedule “A”, as same may be amended by the Corporation from time to time.

 

13. You shall have no rights whatsoever as a shareholder in respect of any Shares (including any rights to receive dividends or other distributions from or on the Shares) other than in respect of Shares (if any) distributed to You in satisfaction of Your Vested RSUs in accordance with and in the manner provided for in the Plan.

 

14. Subject to Section 10.6 of the Plan, this Agreement may be amended or terminated at any time by the Committee or the Board in whole or in part and the Plan may be amended or terminated at any time by the Board in whole or in part.

 

15. This Agreement shall enure to the benefit of and be binding upon the Corporation and its respective successors and assigns and upon You and all other persons claiming or deriving rights through You.

 

16. This Agreement and the rights of all parties and the construction of each and every provision hereof and the Plan and any RSUs granted hereunder shall at all times and for all purposes be construed according to the laws of the Province of Alberta (and the federal laws of Canada, as applicable, herein) and shall be treated in all respects as an Alberta contract, without reference to the principles of conflicts of law. In the event of a dispute, You agree to submit to the jurisdiction of the courts of the Province of Alberta.

 

17. Notwithstanding any provision of the Plan or this Agreement to the contrary, where applicable, it is intended that the provisions of the Plan and this Agreement comply with applicable tax law and, in respect of U.S. Participants, Section 409A, and that all provisions of the Plan shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. If You are an US Participant, You are solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed upon You or for Your account in connection with the Plan or any other Plan maintained by the Corporation or an Affiliate (including any taxes and penalties under Section 409A), and neither the Corporation nor any Affiliate shall have any obligation to indemnify or otherwise hold You (or any beneficiary) harmless from any or all of such taxes or penalties. In addition, should any provision of the Plan or this Agreement be subject to Section 409A, You agree that the Date Employment Ceases and the Date of Retirement shall be determined to mean a “separation from service” as defined in Section 409A whenever necessary to ensure compliance therewith for any payment or settlement of a benefit conferred under the Plan or this Agreement that is subject to Section 409A, and, for such purposes, shall be determined based upon a reduction in the bona fide level of services performed to a level equal to twenty percent (20%) or less of the average level of services performed by You during the immediately preceding 36-month period. Any distribution or settlement of a benefit conferred under the Plan or this Agreement following the Date Employment Ceases or the Date of Retirement that would be subject to Section 409A as a distribution following a separation from service of a “specified employee” as defined under Section 409A, shall occur no earlier than the expiration of the six-month period following such Date Employment Ceases or Date of Retirement.

 

18.

You agree to the collection, use and disclosure of personal information about You (including, without limitation, personal employee information about You) (collectively, “ Personal Information ”) by the Corporation or its Affiliates for purposes of administering and managing

 

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  the grant of RSUs to You hereunder, operation of the Plan and this Agreement and, as applicable, compliance with Applicable Law (the “ Purposes ”).

Without limiting the generality of the foregoing, You agree to the collection, use and disclosure of the Personal Information by the Corporation and its Affiliates from and to such third party service provider(s) as may be retained by the Corporation from time to time to assist with the Purposes (“ Service Provider ”), as may be reasonably required to fulfil the Purposes, whether verbally (including by telephone), in writing or electronically over the Internet including, without limitation, by e-mail. You agree that any acceptance or consent indicated by You in electronic form to any documents provided to You by the Corporation or the Service Provider including, without limitation, the Plan and this Agreement shall be the equivalent of original written paper documents and Your written acceptance or consent thereto.

You further agree to provide the Corporation and, where necessary, the Service Provider, with all information, including Personal Information, as may be reasonably required to fulfil the Purposes. You acknowledge and agree that the Corporation, an Affiliate and/or the Service Provider (as applicable) may, from time to time, and in accordance with Applicable Laws, disclose Personal Information including, without limitation, in response to regulatory filings or other lawful requests by a government authority or regulatory body, or for purpose of complying with a subpoena, warrant or other order by a court or other party having jurisdiction over the Corporation, an Affiliate or the Service Provider (as applicable) to compel production of same. You acknowledge and agree that the Corporation, an Affiliate or the Service Provider may, as part of their business practices, collect, use and disclose the Personal Information outside of Canada or the United States (as applicable) in respect of the Purposes. Should You have any questions regarding the Corporation’s collection, use and disclosure of Your Personal Information, contact Encana’s Privacy Officer at privacy@encana.com.

 

19. You understand that by indicating your acceptance of and agreement with the terms of this Agreement (whether electronically or otherwise), You confirm You have received and reviewed the terms of the Plan and this Agreement, which contain legal terms, and that You agree to be bound by them.

IN WITNESS WHEREOF this Agreement has been executed effective as of the Grant Date.

 

ENCANA CORPORATION

 

Mike Williams
Executive Vice-President, Corporate Services

 

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Schedule “A”

Incentive Compensation Clawback Policy

By resolution of the Board of Directors (the “ Board ”) of Encana Corporation (“ Encana ” or the “ Corporation ”), this Policy is effective as of this 22 nd day of October, 2012 (the “ Effective Date ”).

This Policy applies to the President & Chief Executive Officer and each Executive-Vice President of the Corporation and any individual who serves in either such capacity on or following the Effective Date (collectively, the “ Executive ”). References in this Policy to the “Corporation” include, where applicable, any affiliate thereof.

This Policy has been adopted to enhance the Corporation’s alignment with best practices in respect of risk management and executive compensation and shall be, at all times, subject to and interpreted in a manner consistent with applicable laws or the rules of any applicable stock exchange (collectively, “ Applicable Rules ”).

This Policy applies to “Incentive-Based Compensation” which, for the purposes of this Policy, means compensation relating to the achievement of performance goals or similar conditions, excluding salary, perquisites, benefits and pension entitlements, and including, without limitation, any award or grant of or any eligibility, entitlement or gain of, an Executive under the Corporation’s: (i) High Performance Results Plan, or any other short-term incentive plan; or (ii) Long-Term Incentive (“ LTI ”) program including, without limitation, Employee Stock Option Plan, Employee Stock Appreciation Rights Plan, Performance Share Unit Plan, Restricted Share Unit Plan and Deferred Share Unit Plan, as each may be amended from time to time (including any time-based grants under any such plans). For greater clarity, this Policy shall not apply to any Incentive-Based Compensation awarded, granted or paid to an Executive prior to the Effective Date.

Where:

 

    the Corporation is required to prepare an accounting restatement due to its material non-compliance with any financial reporting requirement under applicable securities laws (the “ Restatement ”), (the date upon which the Corporation is required to prepare such Restatement is hereinafter the “ Restatement Date ”);

 

    the Executive received Incentive-Based Compensation referable to the financial years subject to the Restatement in excess of what the Executive would have been paid under the Restatement (the “ Overcompensation Amount ”); and

 

    the Executive engaged in gross negligence, intentional misconduct or fraud which caused or significantly contributed to the Corporation’s material non-compliance with applicable securities laws which resulted in the requirement for the Restatement;

the Board shall be entitled:

 

    where and to the extent the Overcompensation Amount has been previously paid, transferred or otherwise made available to the Executive, to require the Executive, by written demand, to reimburse the Corporation for the Overcompensation Amount; and

 

   

where all or a portion of the Overcompensation Amount has not been paid, transferred or otherwise made available to the Executive, the right of the Executive to be so paid or have such benefit transferred or otherwise made available to him or her shall, to the extent required to reimburse the Corporation for such Overcompensation Amount, immediately terminate and be forfeited by the Executive and where

 

- 1 -


 

required, cancelled by the Corporation to such extent and upon such date as may be specified by the Board; and

 

    to the extent the Overcompensation Amount is not immediately recovered upon demand from the Executive, whether via direct reimbursement, forfeiture and/or cancellation, to require a sufficient quantity or value of any compensation owing by the Corporation to the Executive including, without limitation, any unvested or unexercised awards under the LTIs (the “ Outstanding LTIs ”), be immediately withheld and/or irrevocably cancelled by the Corporation to compensate for (or set off the value of same against) the Overcompensation Amount or any unrecovered portion thereof, and to bring any other actions against the Executive which the Board may deem necessary to recover the Overcompensation Amount.

The period of time during which the Corporation shall be entitled to seek recovery of the Overcompensation Amount from the Executive shall be three (3) years from the Restatement Date. Recoupment of Overcompensation Amounts under this Policy shall be initiated by the Corporation at the request of the Board, and all amounts recoverable or payable hereunder shall be paid to the Corporation or as directed by the Board.

If Applicable Rules require the Corporation to adopt a policy or provisions relating to the recoupment or recovery of incentive-based or other compensation based on restated financial statements which are inconsistent with or materially differ from this Policy and the Board adopts such policy or provisions to comply with Applicable Rules (the “ New Policy ”), such New Policy shall replace and supersede this Policy and shall apply to Incentive-Based Compensation granted or awarded to the Executive following the effective date of the New Policy. Subject to Applicable Rules, this Policy shall continue to apply to Incentive-Based Compensation granted or awarded to the Executive prior to the effective date of the New Policy. This Policy may be terminated at any time by the Board.

 

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Exhibit 10.15

RESTRICTED SHARE UNIT PLAN

FOR EMPLOYEES OF ENCANA CORPORATION

[U.S. EXECUTIVE] 20      RSU GRANT AGREEMENT

 

Participant Name:    ###PARTICIPANT_NAME###
Grant Date:    ###GRANT_DATE###
Number of RSUs    ###TOTAL_AWARDS###
Currency of RSUs:    USD
Stock Exchange:    NYSE
Vesting Date:    ###VEST_SCHEDULE_TABLE###

This Grant Agreement including Schedule “A”” hereof (collectively, this “ Agreement ”) is between you, the eligible employee of the Corporation or its Affiliate (“ Participant ” or “ You ”) and Encana Corporation or an Affiliate thereof (the “ Corporation ”).

WHEREAS the Corporation has established the Restricted Share Unit Plan for Employees of Encana Corporation (the “ Plan ”);

AND WHEREAS You are an employee of the Corporation and the Board of Directors of the Corporation (the “Board”) has authorized the granting to You of certain Restricted Share Units (“ RSUs ”) in such number as set out above and as further described in this Agreement pursuant to and in accordance with the provisions of the Plan;

NOW THEREFORE, THIS AGREEMENT WITNESSETH that in consideration of other good and valuable consideration including, among other things, the employment services rendered by You to the Corporation or its Affiliate, the receipt and sufficiency of which is hereby acknowledged by the parties, it is agreed by and between the parties hereto as follows:

 

1. The terms and conditions of the Plan are hereby incorporated by reference as terms and conditions of this Agreement. All capitalized terms used in this Agreement, unless otherwise defined in this Agreement, shall have the meanings set out in the Plan.

 

2. Participation in the Plan is voluntary on Your part.

 

3. You hereby confirm that You have received and reviewed a copy of the Plan and agree to be bound by its terms and conditions.

 

4. Effective as of the Grant Date above, the Corporation hereby grants to You, in accordance with and subject to the terms and conditions of the Plan and this Agreement, RSUs in such number as set out above and subject to such Vesting Date as specified above and such other terms or conditions as the Committee or the Board, as applicable, may determine.

 

5. RSUs granted to You on the Grant Date will only become Vested RSUs and be payable on the Vesting Date specified above subject to the terms and conditions set out in the Plan (including, without limitation, Section 7 thereof), and this Agreement.

 

- 1 -


6. Dividend Equivalent RSUs shall be determined separately with respect to the RSUs applicable to each grant under Section 4.1 of the Plan. Subject to the terms and conditions of the Plan (including, without limitation, Section 5.2 thereof) and this Agreement, where cash dividends are paid by the Corporation on the Shares between the Grant Date and the Vesting Date in respect of a particular grant under Section 4.1 of the Plan, the Corporation shall credit additional Dividend Equivalent RSUs to the Participant’s RSU Account. The number of such Dividend Equivalent RSUs (including fractional RSUs) to be credited in respect of each dividend record date will be calculated by dividing the cash dividends that would have been paid to the Participant if the RSUs applicable to the particular grant under Section 4.1 of the Plan (and any previously granted Dividend Equivalent RSUs related to such RSUs) as at such dividend record date had been Shares by the closing price per Share on the applicable Stock Exchange on the immediately preceding Trading Day of the dividend payment date for such cash dividends. Dividend Equivalent RSUs shall vest and be paid at the same time as the RSUs to which they relate.

 

7. The determination by the Committee or the Board, as applicable, of any question which may arise as to the interpretation and implementation of the Plan, this Agreement or any RSUs granted pursuant to the Plan or hereunder shall be final and binding on You and all other persons claiming or deriving rights through You.

 

8. The Corporation’s grant of any RSUs or any obligation to make any payments under the Plan is subject to compliance with Applicable Law. As a condition of participating in the Plan, You hereby agree to comply with all such Applicable Law and agree to furnish to the Corporation all information and undertakings as may be required to permit compliance with such Applicable Law. Without limiting the generality of the foregoing, You hereby acknowledge and agree that any payment or settlement to You in respect of Vested RSUs shall be subject to such taxes and other withholdings or deductions as may be required by Applicable Law.

 

9. The Plan contains specific conditions and provisions including, without limitation, in Section 7 thereof, with respect to determining whether RSUs may become Vested RSUs and governing Your rights with respect to the Plan and this Agreement during a Period of Absence, Unpaid Leave of Absence, upon a Termination of Employment, upon a Change in Control and/or in the event of Your Retirement or Death. Without restricting the generality of Section 3 hereof, You further agree that You have read all of the provisions of the Plan and this Agreement and agree to be bound by them.

 

10. Upon the occurrence of a Termination of Employment of You, pursuant to Section 7.4 of the Plan, You shall not be entitled to any further grant or vesting of RSUs, nor shall You be entitled to any cash, Shares or other payment (as applicable) in respect of any RSUs which are unvested on or prior to the Date Employment Ceases. You agree You have read these provisions of the Plan and agree to be bound by them.

 

11. Neither the Plan nor any action taken thereunder shall interfere with the right of the Corporation or any Affiliate which employs You to terminate Your employment at any time. Neither shall any period of notice, if any (whether pursuant to statute or common law), nor any payment in lieu thereof, upon a Termination of Employment of You (whether wrongful or otherwise) be considered or deemed to extend the period of Your employment or, for greater certainty, the Date Employment Ceases, for the purposes of the Plan or this Agreement including, without limitation, for the purposes of the vesting of any RSUs, or any payment in respect thereof. For greater certainty, all vesting of RSUs granted to You hereunder shall immediately cease as of the Date Employment Ceases.

 

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12. You acknowledge and agree that RSUs granted to You hereunder (and the grant thereof) and any payment in respect thereof are expressly subject to the terms and conditions of the Corporation’s “Incentive Compensation Clawback Policy”, attached hereto as Schedule “A”, as same may be amended by the Corporation from time to time.

 

13. You shall have no rights whatsoever as a shareholder in respect of any Shares (including any rights to receive dividends or other distributions from or on the Shares) other than in respect of Shares (if any) distributed to You in satisfaction of Your Vested RSUs in accordance with and in the manner provided for in the Plan.

 

14. Subject to Section 10.6 of the Plan, this Agreement may be amended or terminated at any time by the Committee or the Board in whole or in part and the Plan may be amended or terminated at any time by the Board in whole or in part.

 

15. This Agreement shall enure to the benefit of and be binding upon the Corporation and its respective successors and assigns and upon You and all other persons claiming or deriving rights through You.

 

16. This Agreement and the rights of all parties and the construction of each and every provision hereof and the Plan and any RSUs granted hereunder shall at all times and for all purposes be construed according to the laws of the Province of Alberta (and the federal laws of Canada, as applicable, herein) and shall be treated in all respects as an Alberta contract, without reference to the principles of conflicts of law. In the event of a dispute, You agree to submit to the jurisdiction of the courts of the Province of Alberta.

 

17. Notwithstanding any provision of the Plan or this Agreement to the contrary, where applicable, it is intended that the provisions of the Plan and this Agreement comply with applicable tax law and, in respect of U.S. Participants, Section 409A, and that all provisions of the Plan shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. If You are an US Participant, You are solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed upon You or for Your account in connection with the Plan or any other Plan maintained by the Corporation or an Affiliate (including any taxes and penalties under Section 409A), and neither the Corporation nor any Affiliate shall have any obligation to indemnify or otherwise hold You (or any beneficiary) harmless from any or all of such taxes or penalties. In addition, should any provision of the Plan or this Agreement be subject to Section 409A, You agree that the Date Employment Ceases and the Date of Retirement shall be determined to mean a “separation from service” as defined in Section 409A whenever necessary to ensure compliance therewith for any payment or settlement of a benefit conferred under the Plan or this Agreement that is subject to Section 409A, and, for such purposes, shall be determined based upon a reduction in the bona fide level of services performed to a level equal to twenty percent (20%) or less of the average level of services performed by You during the immediately preceding 36-month period. Any distribution or settlement of a benefit conferred under the Plan or this Agreement following the Date Employment Ceases or the Date of Retirement that would be subject to Section 409A as a distribution following a separation from service of a “specified employee” as defined under Section 409A, shall occur no earlier than the expiration of the six-month period following such Date Employment Ceases or Date of Retirement.

 

18.

You agree to the collection, use and disclosure of personal information about You (including, without limitation, personal employee information about You) (collectively, “ Personal Information ”) by the Corporation or its Affiliates for purposes of administering and managing

 

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  the grant of RSUs to You hereunder, operation of the Plan and this Agreement and, as applicable, compliance with Applicable Law (the “ Purposes ”).

Without limiting the generality of the foregoing, You agree to the collection, use and disclosure of the Personal Information by the Corporation and its Affiliates from and to such third party service provider(s) as may be retained by the Corporation from time to time to assist with the Purposes (“ Service Provider ”), as may be reasonably required to fulfil the Purposes, whether verbally (including by telephone), in writing or electronically over the Internet including, without limitation, by e-mail. You agree that any acceptance or consent indicated by You in electronic form to any documents provided to You by the Corporation or the Service Provider including, without limitation, the Plan and this Agreement shall be the equivalent of original written paper documents and Your written acceptance or consent thereto.

You further agree to provide the Corporation and, where necessary, the Service Provider, with all information, including Personal Information, as may be reasonably required to fulfil the Purposes. You acknowledge and agree that the Corporation, an Affiliate and/or the Service Provider (as applicable) may, from time to time, and in accordance with Applicable Laws, disclose Personal Information including, without limitation, in response to regulatory filings or other lawful requests by a government authority or regulatory body, or for purpose of complying with a subpoena, warrant or other order by a court or other party having jurisdiction over the Corporation, an Affiliate or the Service Provider (as applicable) to compel production of same. You acknowledge and agree that the Corporation, an Affiliate or the Service Provider may, as part of their business practices, collect, use and disclose the Personal Information outside of Canada or the United States (as applicable) in respect of the Purposes. Should You have any questions regarding the Corporation’s collection, use and disclosure of Your Personal Information, contact Encana’s Privacy Officer at privacy@encana.com

 

19. You understand that by indicating your acceptance of and agreement with the terms of this Agreement (whether electronically or otherwise), You confirm You have received and reviewed the terms of the Plan and this Agreement, which contain legal terms, and that You agree to be bound by them.

IN WITNESS WHEREOF this Agreement has been executed effective as of the Grant Date.

 

ENCANA CORPORATION

 

Mike Williams
Executive Vice-President, Corporate Services

 

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Schedule “A”

Incentive Compensation Clawback Policy

By resolution of the Board of Directors (the “ Board ”) of Encana Corporation (“ Encana ” or the “ Corporation ”), this Policy is effective as of this 22 nd day of October, 2012 (the “ Effective Date ”).

This Policy applies to the President & Chief Executive Officer and each Executive-Vice President of the Corporation and any individual who serves in either such capacity on or following the Effective Date (collectively, the “ Executive ”). References in this Policy to the “Corporation” include, where applicable, any affiliate thereof.

This Policy has been adopted to enhance the Corporation’s alignment with best practices in respect of risk management and executive compensation and shall be, at all times, subject to and interpreted in a manner consistent with applicable laws or the rules of any applicable stock exchange (collectively, “ Applicable Rules ”).

This Policy applies to “Incentive-Based Compensation” which, for the purposes of this Policy, means compensation relating to the achievement of performance goals or similar conditions, excluding salary, perquisites, benefits and pension entitlements, and including, without limitation, any award or grant of or any eligibility, entitlement or gain of, an Executive under the Corporation’s: (i) High Performance Results Plan, or any other short-term incentive plan; or (ii) Long-Term Incentive (“ LTI ”) program including, without limitation, Employee Stock Option Plan, Employee Stock Appreciation Rights Plan, Performance Share Unit Plan, Restricted Share Unit Plan and Deferred Share Unit Plan, as each may be amended from time to time (including any time-based grants under any such plans). For greater clarity, this Policy shall not apply to any Incentive-Based Compensation awarded, granted or paid to an Executive prior to the Effective Date.

Where:

 

    the Corporation is required to prepare an accounting restatement due to its material non-compliance with any financial reporting requirement under applicable securities laws (the “ Restatement ”), (the date upon which the Corporation is required to prepare such Restatement is hereinafter the “ Restatement Date ”);

 

    the Executive received Incentive-Based Compensation referable to the financial years subject to the Restatement in excess of what the Executive would have been paid under the Restatement (the “ Overcompensation Amount ”); and

 

    the Executive engaged in gross negligence, intentional misconduct or fraud which caused or significantly contributed to the Corporation’s material non-compliance with applicable securities laws which resulted in the requirement for the Restatement;

the Board shall be entitled:

 

    where and to the extent the Overcompensation Amount has been previously paid, transferred or otherwise made available to the Executive, to require the Executive, by written demand, to reimburse the Corporation for the Overcompensation Amount; and

 

   

where all or a portion of the Overcompensation Amount has not been paid, transferred or otherwise made available to the Executive, the right of the Executive to be so paid or have such benefit transferred or otherwise made available to him or her shall, to the extent required to reimburse the Corporation for such Overcompensation Amount, immediately terminate and be forfeited by the Executive and where

 

- 1 -


 

required, cancelled by the Corporation to such extent and upon such date as may be specified by the Board; and

 

    to the extent the Overcompensation Amount is not immediately recovered upon demand from the Executive, whether via direct reimbursement, forfeiture and/or cancellation, to require a sufficient quantity or value of any compensation owing by the Corporation to the Executive including, without limitation, any unvested or unexercised awards under the LTIs (the “ Outstanding LTIs ”), be immediately withheld and/or irrevocably cancelled by the Corporation to compensate for (or set off the value of same against) the Overcompensation Amount or any unrecovered portion thereof, and to bring any other actions against the Executive which the Board may deem necessary to recover the Overcompensation Amount.

The period of time during which the Corporation shall be entitled to seek recovery of the Overcompensation Amount from the Executive shall be three (3) years from the Restatement Date. Recoupment of Overcompensation Amounts under this Policy shall be initiated by the Corporation at the request of the Board, and all amounts recoverable or payable hereunder shall be paid to the Corporation or as directed by the Board.

If Applicable Rules require the Corporation to adopt a policy or provisions relating to the recoupment or recovery of incentive-based or other compensation based on restated financial statements which are inconsistent with or materially differ from this Policy and the Board adopts such policy or provisions to comply with Applicable Rules (the “ New Policy ”), such New Policy shall replace and supersede this Policy and shall apply to Incentive-Based Compensation granted or awarded to the Executive following the effective date of the New Policy. Subject to Applicable Rules, this Policy shall continue to apply to Incentive-Based Compensation granted or awarded to the Executive prior to the effective date of the New Policy. This Policy may be terminated at any time by the Board.

 

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Exhibit 10.16

 

LOGO

DEFERRED SHARE UNIT PLAN FOR EMPLOYEES

OF ENCANA CORPORATION

Adopted with effect from December 18, 2002

and reflective of amendments made as of October 23, 2007,

October 22, 2008, and July 20, 2010


TABLE OF CONTENTS

 

Section

   Page  
1.  

PREAMBLE AND DEFINITIONS

     1   
2.  

CONSTRUCTION AND INTERPRETATION

     3   
3.  

ELIGIBILITY

     4   
4.  

DEFERRED SHARE UNIT GRANTS AND ACCOUNTS

     4   
5.  

ACCOUNTS, DIVIDEND EQUIVALENTS AND REORGANIZATION

     6   
6.  

REDEMPTION

     7   
7.  

CURRENCY

     8   
8.  

SHAREHOLDER RIGHTS

     8   
9.  

ADMINISTRATION

     8   
10.  

ASSIGNMENT

     9   

Schedules were amended effective October 22, 2008:

 

Schedule A    Participation Agreement
Schedule B    Election Notice
Schedule C    Redemption Notice
Special Appendix            Special Provisions Applicable to Eligible Employees Subject to Section 409A of the United States Internal Revenue Code


DEFERRED SHARE UNIT PLAN FOR EMPLOYEES

OF ENCANA CORPORATION

(Adopted with effect from December 18, 2002

and reflective of amendments made as of October 23, 2007,

October 22, 2008, and July 20, 2010.)

 

1. PREAMBLE AND DEFINITIONS

 

  1.1 Title

The Plan herein described, and as amended from time to time, shall be called the “Deferred Share Unit Plan for Employees of Encana Corporation”.

 

  1.2 Purposes of the Plan

The purposes of the Plan are:

 

  (a) to promote a greater alignment of interests between employees and the shareholders of the Corporation;

 

  (b) to provide a compensation system for senior executives and employees that is reflective of the responsibility, commitment and risk accompanying their respective roles;

 

  (c) to assist the Corporation to attract and retain individuals to be employees of the Corporation; and

 

  (d) to allow eligible employees of the Corporation to participate in the long-term success of the Corporation.

 

  1.3 Definitions

 

  1.3.1 “Affiliate” means an affiliate of the Corporation as the term “affiliate” is defined in paragraph 8 of Canada Revenue Agency Interpretation Bulletin IT-337R4 (Consolidated), Retiring Allowances , or any successor publication thereto.

 

  1.3.2 Blackout Period means a trading blackout period imposed by the Corporation under the Corporation’s Policy on Disclosure, Confidentiality and Employee Trading (as amended, supplemented or replaced from time to time);

 

  1.3.3 “Board” means the Board of Directors of the Corporation.

 

  1.3.4 “Bonus Plan” means the High Performance Results Plan applicable to an Eligible Employee for a year, pursuant to which the Eligible Employee may receive cash awards, based on corporate performance and the Eligible Employee’s individual contribution to the Corporation’s financial results and/or the financial results of a Related Corporation measured against predetermined objectives.


Encana Corporation

Deferred Share Unit Plan for Employees

(With amendments as of July 20, 2010)

   Page 2

 

  1.3.5 “Cease Trade Date” has the meaning ascribed thereto in Section 6.3.

 

  1.3.6 “Committee” means the Human Resources and Compensation Committee of the Board.

 

  1.3.7 Conversion Date means, with respect to any calendar year, the date used to determine the Market Value for purposes of determining the number of HPR DSUs to be awarded to an Eligible Employee, which date shall be the last business day in the relevant Performance Period.

 

  1.3.8 “Corporation” means Encana Corporation and any successor corporation whether by amalgamation, merger or otherwise.

 

  1.3.9 Deferred Share Unit” means a bookkeeping entry on the books of the Corporation, the value of which on any particular date shall be equal to the Market Value.

 

  1.3.10 “Deferred Share Unit Account” has the meaning ascribed thereto in Section 5.1.

 

  1.3.11 “Eligible Employee” means such employees of the Corporation or a Related Corporation as the Board may designate from time to time as eligible to participate in the Plan.

 

  1.3.12 “Employed” means, with respect to an Eligible Employee, that:

 

  (a) he is performing work at a workplace of the Corporation or an Affiliate and has not been given or received a notice of termination of employment by the Corporation or an Affiliate; or

 

  (b) he is not actively at work at a workplace of the Corporation or an Affiliate due to an approved leave of absence, maternity or parental leave or disability and has not been given or received a notice of termination of employment by the Corporation or an Affiliate.

For greater certainty, an Eligible Employee shall not be considered “Employed” or otherwise an employee of the Corporation or an Affiliate during a notice period that arises upon the involuntary termination of employment of the Eligible Employee by the Corporation or an Affiliate, as applicable.

 

  1.3.13 “HPR DSUs” means a Deferred Share Unit credited to the Deferred Share Unit Account of an Eligible Employee in accordance with Section 4.4.

 

  1.3.14 “Market Value” means, with respect to any particular date, the closing price per share for a Share on the Stock Exchange on the Trading Day immediately prior to that date or, in the event of the Cease Trade Date, such other value as may be determined pursuant to Section 6.3.


Encana Corporation

Deferred Share Unit Plan for Employees

(With amendments as of July 20, 2010)

   Page 3

 

  1.3.15 “Performance Period” means a calendar year in respect of which an Eligible Employee may be or become entitled to an award of HPR DSUs or a cash award under the Bonus Plan or both.

 

  1.3.16 “Plan” means this Deferred Share Unit Plan for Employees of Encana Corporation, including any schedules or appendices hereto, as amended from time to time.

 

  1.3.17 “Redemption Date” has the meaning ascribed thereto in Section 6.1.

 

  1.3.18 “Related Corporation means a corporation related to the Corporation for the purposes of the Income Tax Act (Canada).

 

  1.3.19 “Share” means a common share of the Corporation and such other share as is substituted therefor as a result of amendments to the articles of the Corporation, reorganization or otherwise, including any rights that form a part of the common share or substituted share but not including any other rights that are attached thereto and trade therewith or any other share that is added thereto.

 

  1.3.20 “Stock Exchange” means the Toronto Stock Exchange, or if the Shares are not listed on the Toronto Stock Exchange, such other stock exchange on which the Shares are listed, or if the Shares are not listed on any stock exchange, then on the over-the-counter market.

 

  1.3.21 “Termination Date” means, with respect to an Eligible Employee the earliest date on which both of the following conditions are met: (i) the Eligible Employee has ceased to be Employed by the Corporation, or any Affiliate thereof for any reason whatsoever; and (ii) the Eligible Employee is not a member of the Board nor a director of an Affiliate of the Corporation.

 

  1.3.22 “Trading Day” means any date on which the Stock Exchange is open for the trading of Shares and on which one or more Shares actually traded.

 

2. CONSTRUCTION AND INTERPRETATION

 

  2.1 In the Plan, references to the masculine include the feminine and references to the singular shall include the plural and vice versa, as the context shall require.

 

  2.2 The Plan shall be governed and interpreted in accordance with the laws of the Province of Alberta and the laws of Canada.

 

  2.3 If any provision of the Plan or part hereof is determined to be void or unenforceable in whole or in part, such determination shall not affect the validity or enforcement of any other provision or part thereof.

 

  2.4 Headings wherever used herein are for reference purposes only and do not limit or extend the meaning of the provisions herein contained.


Encana Corporation

Deferred Share Unit Plan for Employees

(With amendments as of July 20, 2010)

   Page 4

 

3. ELIGIBILITY

 

  3.1 The Corporation is establishing the Plan for Eligible Employees, effective on December 18, 2002.

 

  3.2 Nothing herein contained shall be deemed to give any person the right to be retained as an employee or director of the Corporation or of an Affiliate.

 

4. DEFERRED SHARE UNIT GRANTS AND ACCOUNTS

 

  4.1 Each Eligible Employee shall receive, subject to the conditions stated herein and in the written agreement referred to below in this Section 4.1, a grant of such number of Deferred Share Units as may be specified by the Committee in such written agreement, with effect from the date set out in such written agreement, which date shall not be earlier than the effective date of the Plan, provided that, for greater certainty, any conditions attached to such Deferred Share Units shall in no case cause such Deferred Share Units or the Plan to cease to comply with the requirements of paragraph 6801(d) of the Income Tax Regulations. The participation of an Eligible Employee in the Plan shall be evidenced by a written agreement between the Corporation and the Eligible Employee in the form of Schedule A hereto.

 

  4.2 An Eligible Employee may, with respect to any particular Performance Period, commencing with the 2003 Performance Period, elect to participate in the Plan and be eligible to receive HPR DSUs. In order to elect to participate in the Plan with respect to any particular Performance Period, an Eligible Employee shall complete and deliver to the Corporation a written election, in a manner prescribed by the Corporation and published on the Corporation’s internal employee website, or otherwise communicated to Eligible Employees from time to time, and substantially in the form set out in Schedule B hereto, before the last business day of the calendar year immediately preceding the Performance Period. With respect to the 2003 Performance Period only, an Eligible Employee must complete and deliver his written election to the Secretary of the Corporation on or prior to the later of December 31, 2002 and the date that is fifteen business days after the Corporation receives an advance ruling on the Plan from the Canada Revenue Agency in a form satisfactory to the Corporation.

 

  4.3 An Eligible Employee who wishes to participate in the Plan with respect to a particular Performance Period in order to become eligible to receive HPR DSUs shall be entitled to elect on an irrevocable basis one of the following four options:

 

  (i) 25% of the Eligible Employee’s potential incentive compensation award under the Bonus Plan relating to that Performance Period in the form of HPRs DSUs;

 

  (ii) 50% of the Eligible Employee’s potential incentive compensation award under the Bonus Plan relating to that Performance Period in the form of HPR DSUs;


Encana Corporation

Deferred Share Unit Plan for Employees

(With amendments as of July 20, 2010)

   Page 5

 

  (iii) 75% of the Eligible Employee’s potential incentive compensation award under the Bonus Plan relating to that Performance Period in the form of HPR DSUs; or

 

  (iv) 100% of the Eligible Employee’s potential incentive compensation award under the Bonus Plan relating to that Performance Period in the form of HPR DSUs.

Notwithstanding an Eligible Employee’s election under Section 4.2 and this Section 4.3, the Committee may, in its sole discretion, decline to award HPR DSUs in respect of a particular Performance Period, limit the percentage an Eligible Employee may elect to receive pursuant to this Section 4.3, require the Eligible Employee to receive a percentage, as specified by the Committee, of the Eligible Employee’s potential incentive compensation under the Bonus Plan for that Performance Period in the form of HPR DSUs, or limit the total number of HPR DSUs available to all Eligible Employees in respect of a particular Performance Period and make any corresponding changes to the number of HPR DSUs to be received by an Eligible Employee.

 

  4.4 The Committee may, from time to time, award HPR DSUs to Eligible Employees who have elected pursuant to Section 4.2 to participate in the Plan for a particular Performance Period. The Committee shall specify the Conversion Date of each award of HPR DSUs under this Section 4.4 and the date as of which each such award of HPR DSUs is to be credited to the Deferred Share Unit Account of the applicable Eligible Employee. Each award of HPR DSUs shall be confirmed by an instrument in writing issued by the Corporation. Where any specified Conversion Date falls on a date which is within a Blackout Period, then the Conversion Date shall automatically occur on and be effective following the end of such Blackout Period to permit the Market Value of any such HPR DSUs to be determined on a Trading Day which occurs immediately following the end of any such Blackout Period.

 

  4.5 Where the Committee chooses not to award HPR DSUs to an Eligible Employee under Section 4.4 in respect of a Performance Period, such Eligible Employee shall remain eligible to receive a cash incentive compensation award in respect of such Performance Period in accordance with the terms of the Bonus Plan as if such Eligible Employee had not elected to participate in the Plan for such Performance Period.

 

  4.6

For the purpose of determining the number of HPR DSUs to be awarded to an Eligible Employee in accordance with Section 4.4, the Committee shall compute the amount of incentive compensation award that would have been awarded to the Eligible Employee pursuant to the Bonus Plan had such employee not elected to participate in the Plan for the relevant Performance Period (the “Global Dollar Amount”). The Committee (subject to its discretion under Section 4.3) shall award a number of HPR DSUs (including fractional HPR DSUs) to the Eligible Employee equal to the quotient determined by dividing: (i) the product determined by multiplying (a) the percentage amount elected by the Eligible Employee in accordance with option (i), (ii) (iii) or (iv) of Section 4.3 (as


Encana Corporation

Deferred Share Unit Plan for Employees

(With amendments as of July 20, 2010)

   Page 6

 

  applicable), and (b) the Global Dollar Amount, by (ii) the Market Value determined on the Conversion Date.

 

  4.7 HPR DSUs and any additional Deferred Share Units granted under Section 5.2 in respect of any HPR DSUs will be fully vested upon being credited to an Eligible Employee’s Deferred Share Unit Account and the Eligible Employee’s entitlement to payment of such HPR DSUs and related additional Deferred Share Units at his Termination Date shall not thereafter be subject to satisfaction of any requirements as to any minimum period of employment or other conditions. Deferred Share Units granted to an Eligible Employee under Section 4.1 and any additional Deferred Share Units granted under Section 5.2 in respect thereof shall vest in the Eligible Employee at such time or times, in such number and subject to such conditions as the Committee may specify in the written agreement referred to in Section 4.1. The Eligible Employee shall forfeit all rights, title and interest with respect to any such Deferred Share Units that do not vest in accordance with the terms of such written agreement, together with any additional Deferred Share Units granted under Section 5.2 as dividend equivalents in respect of any Deferred Share Units granted under Section 4.1 that have been forfeited.

 

5. ACCOUNTS, DIVIDEND EQUIVALENTS AND REORGANIZATION

 

  5.1 An account, to be known as a “Deferred Share Unit Account” shall be maintained by the Corporation for each Eligible Employee and will be credited with such notional grants of Deferred Share Units as are received by an Eligible Employee from time to time. Deferred Share Units that fail to vest in an Eligible Employee or that are redeemed by the Eligible Employee or his legal representative shall be cancelled and shall cease to be recorded in the Eligible Employee’s Deferred Share Unit Account as of the date on which such Deferred Share Units fail to vest or are redeemed, as the case may be.

 

  5.2

Whenever cash dividends are paid on the Shares, additional Deferred Share Units will be credited to the Eligible Employee’s Deferred Share Unit Account. The number of such additional Deferred Share Units will be calculated by dividing the dividends that would have been paid to such Eligible Employee if the Deferred Share Units recorded in the Eligible Employee’s Deferred Share Unit Account as at the record date for the cash dividend had been Shares by the Market Value on the date on which the dividends are paid on the Shares. If a board lot of Shares does not trade on such date, then the value of a Deferred Share Unit on such date shall equal the closing price on the last preceding Trading Day on which a board lot of the Shares traded on the Stock Exchange. Notwithstanding the foregoing, following a Cease Trade Date, the value of a Share (or the share of a Related Corporation) used to calculate the number of additional Deferred Share Units under this Section 5.2 shall be the value determined on a reasonable and equitable basis by the Board. Where the date on which dividends are deemed paid on the Deferred Share Units falls on a date which is within a Blackout Period, then the deemed dividend payment date shall automatically occur and be effective on the second Trading Day immediately following the end of such Blackout Period to permit the Market Value to be


Encana Corporation

Deferred Share Unit Plan for Employees

(With amendments as of July 20, 2010)

   Page 7

 

  determined on a Trading Day which occurs immediately following the end of any such Blackout Period.

 

  5.3 In the event of any stock dividend, stock split, combination or exchange of shares, merger, arrangement, re-organization, re-capitalization, consolidation, spin-off or other distribution (other than normal cash dividends) of Corporation assets to shareholders, or any other similar changes affecting the Shares, such proportionate adjustments to reflect such change or changes shall be made with respect to the number of Deferred Share Units outstanding under the Plan, all as determined by the Board in its sole discretion.

 

  5.4 For greater certainty, no amount will be paid to, or in respect of, an Eligible Employee (or a person with whom the Eligible Employee does not deal with at arm’s length, within the meaning of the Income Tax Act (Canada)) under the Plan or pursuant to any other arrangement, and no additional Deferred Share Units will be granted to an Eligible Employee to compensate for a downward fluctuation in the fair market value of the Shares, nor will any other form of benefit be conferred upon, or in respect of, an Eligible Employee for such purpose.

 

6. REDEMPTION

 

  6.1 Subject to Section 4.7, the value of the Deferred Share Units credited to an Eligible Employee’s Deferred Share Unit Account shall be redeemable by the Eligible Employee (or, where the Eligible Employee has died, his estate) at the Eligible Employee’s option (or after the Eligible Employee’s death at the option of his legal representative) following the Termination Date. The Eligible Employee (or, after the Eligible Employee’s death, his legal representative) shall, by filing a written notice of redemption in the form set out in Schedule C hereto with the Vice-President, Corporate Human Resources, or such other officer designated and communicated to the Eligible Employees from time to time, specify a redemption date (the “Redemption Date”) which in any event must be after the date on which the notice of redemption is filed with the Corporation and within the period from the Eligible Employee’s Termination Date to December 15 of the first calendar year commencing after the Eligible Employee’s Termination Date.

 

  6.2 The value of the Deferred Share Units redeemed by or in respect of an Eligible Employee pursuant to Section 6.1 shall be determined based on the Market Value on the Eligible Employee’s Redemption Date and shall be paid to the Eligible Employee (or, if the Eligible Employee has died, to his estate) in the form of a lump sum cash payment, net of any applicable withholdings as soon as practicable after the Eligible Employee’s Redemption Date, provided that in any event, such payment date shall be no later than December 31 of the first calendar year commencing after the Eligible Employee’s Termination Date.

 

  6.3

In the event that the Eligible Employee’s Redemption Date is after the date on which the Shares ceased to be traded on the Stock Exchange, provided such cessation in trading is not reasonably expected to be temporary (the “Cease Trade Date”), the value of the Deferred Share Units redeemed by or in respect of


Encana Corporation

Deferred Share Unit Plan for Employees

(With amendments as of July 20, 2010)

   Page 8

 

  the Eligible Employee pursuant to Section 6.1 shall be determined in accordance with the following:

 

  (a) where the Eligible Employee’s Termination Date is before or not more than 365 days after the last Trading Day before the Cease Trade Date, the value of each Deferred Share Unit credited to the Eligible Employee’s Deferred Share Unit Account at his Redemption Date shall be equal to the Market Value on the last Trading Day before the Cease Trade Date; or

 

  (b) where the Eligible Employee’s Termination Date is after the date that is 365 days after the last Trading Day before the Cease Trade Date, the value of each Deferred Share Unit credited to the Eligible Employee’s Deferred Share Unit Account at his Redemption Date shall be based on the fair market value of a Share of the Corporation or of a Related Corporation at his Redemption Date as is determined on a reasonable and equitable basis by the Board after receiving the advice of one or more independent firms of investment bankers of national repute.

The value of an Eligible Employee’s Deferred Share Units determined in accordance with paragraph (a) or (b) of this Section 6.3, as applicable, shall be paid to the Eligible Employee (or, if the Eligible Employee has died, to his estate) in the form of a lump sum cash payment, net of any applicable withholdings as soon as practicable after the Eligible Employee’s Redemption Date, provided that in any event, such payment date shall be no later than December 31 of the first calendar year commencing after the Eligible Employee’s Termination Date.

 

7. CURRENCY

 

  7.1 All references in the Plan to currency refer to lawful Canadian currency.

 

8. SHAREHOLDER RIGHTS

 

  8.1 Deferred Share Units are not Shares or other securities of the Corporation and will not entitle an Eligible Employee to any shareholder rights, including, without limitation, voting rights, dividend entitlement or rights on liquidation.

 

9. ADMINISTRATION

 

  9.1 Unless otherwise determined by the Board, the Plan shall remain an unfunded and unsecured obligation of the Corporation.

 

  9.2 Unless otherwise determined by the Board, the Plan shall be administered by the Committee.

 

  9.3

The Plan may be amended or terminated at any time by the Board, except as to rights already accrued hereunder by the Eligible Employees. Notwithstanding the foregoing, any amendment or termination of the Plan shall be such that the


Encana Corporation

Deferred Share Unit Plan for Employees

(With amendments as of July 20, 2010)

   Page 9

 

  Plan continuously meets the requirements of paragraph 6801(d) of the Income Tax Regulations or any successor provision thereto.

 

  9.4 The Corporation will be responsible for all costs relating to the administration of the Plan.

 

10. ASSIGNMENT

 

  10.1 The assignment or transfer of the Deferred Share Units, or any other benefits under this Plan, shall not be permitted other than by operation of law.

* * * *


Schedule A

Deferred Share Unit Plan for Employees of

Encana Corporation (the “Plan”)

PARTICIPATION AGREEMENT – Section 4.1 of the Plan

I hereby acknowledge the crediting of                      {insert number} Deferred Share Units as defined in the Plan (“DSUs”) to my Plan account pursuant to Section 4.1 of the Plan as at                      {insert date}.

I confirm that:

 

  1. I have received and reviewed a copy of the terms of the Plan and agree to be bound by them.

 

  2. I understand that my DSUs granted under the Plan may not be redeemed by Encana Corporation (the “Corporation”) until I am no longer either a director or an employee of the Corporation or of an Affiliate.

 

  3. I recognize that when DSUs credited pursuant to the Plan are redeemed in accordance with the terms of the Plan after I am no longer either a director or employee of the Corporation or of an Affiliate, income tax and other withholdings as required will arise at that time. Upon redemption of the DSUs, the Corporation or the Affiliate, as applicable, will make all appropriate withholdings as required by law at that time.

 

  4. The value of DSUs are based on the value of the common shares of the Corporation from time to time and therefore are not guaranteed.

 

  5. No funds will be set aside to guarantee the payment of DSUs. Future payment of DSUs will remain an unfunded and unsecured liability recorded on the books of the Corporation.

 

  6. I understand that, to the extent I am (or become) subject to United States federal income taxes, my DSUs credited pursuant to the Plan, and my rights with respect to such DSUs, will be subject to the terms of the Special Appendix to the Plan (the “Special Appendix”), which Special Appendix contains terms and conditions that are intended to cause DSUs to comply with Section 409A of the United States Internal revenue Code. I also understand that the Special Appendix is a part of the Plan and references to the Plan shall be deemed to include a reference to the Special Appendix, to the extent applicable.

The foregoing is only a brief outline of certain key provisions of the Plan. For more complete information, reference should be made to the Plan text which governs in the case of conflict or inconsistency with this Participation Agreement. All capitalized expressions used herein shall have the same meaning as in the Plan unless otherwise defined herein.

 

 

   

 

Date     (Name of Employee)
   

 

    (Signature of Employee)

 

A-1


Schedule B

Deferred Share Unit Plan for

Employees of Encana Corporation (the “Plan”)

ELECTION NOTICE – Section 4.3 of the Plan

 

I. Election

Subject to Part II of this Notice, I hereby elect to receive:

} 25%            or            } 50%            or            } 75%            or            } 100%

of my potential award under the Bonus Plan for the period January 1,          to December 31,          in the form of Deferred Share Units (“DSUs”) and the balance of any such award in cash, net of applicable withholdings.

 

II. Acknowledgement

I confirm and acknowledge that:

 

  1. I have received and reviewed a copy of the terms of the Plan and agree to be bound by them. My election with respect to the Performance Period is conditional upon Encana Corporation receiving an advance tax ruling on the Plan in a form satisfactory to it.

 

  2. I understand that, notwithstanding this election, subject to the terms of the Special Appendix (as defined below), if applicable, the Committee retains discretion to decline to grant DSUs, in which case I will remain eligible to receive an award under the Bonus Plan in accordance with terms of that plan.

 

  3. My DSUs granted under the Plan may not be redeemed by Encana Corporation (the “Corporation”) or any Affiliate thereof until I am no longer either an employee or a director of the Corporation or an Affiliate.

 

  4. When DSUs credited to my account pursuant to this election are redeemed in accordance with the terms of the Plan after I am no longer either an employee or a director of the Corporation or any Affiliate, income tax and other withholdings as required will arise at that time. Upon redemption of the DSUs, the Corporation or the Affiliate, as applicable, will make all appropriate withholdings as required by law at that time.

 

  5. The value of DSUs are based on the value of the common shares of the Corporation and therefore are not guaranteed.

 

  6. No funds will be set aside to guarantee the payment of DSUs. Future payment of DSUs will remain an unfunded liability recorded on the books of the Corporation.

 

B-1


  7. This election is irrevocable.

 

  8. The foregoing is only a brief outline of certain key provisions of the Plan. In the event of any discrepancy between the terms of the Plan and the terms of this Election Notice, the terms of the Plan shall prevail. All capitalized expressions used herein shall have the same meaning as in the Plan unless otherwise defined herein.

 

  9. To the extent I am (or become) subject to United States federal income taxes, my DSUs credited pursuant to the Plan, and my rights with respect to such DSUs, will be subject to the terms of the Special Appendix to the Plan (the “Special Appendix”), which Special Appendix contains terms and conditions that are intended to cause DSUs to comply with Section 409A of the United States Internal revenue Code. I also understand that the Special Appendix is a part of the Plan and references to the Plan shall be deemed to include a reference to the Special Appendix, to the extent applicable.

 

III. Effective Date

This election shall be effective on the date on which this election is received by the Committee.

 

 

   

 

Date     (Name of Employee)
   

 

    (Signature of Employee)

 

B-2


Schedule C

Deferred Share Unit Plan for

Employees of Encana Corporation (the “Plan”)

REDEMPTION NOTICE

Pursuant to Section 6.1 of the Plan, I hereby advise Encana Corporation (the “Corporation) that I wish to redeem all the Deferred Share Units credited to my account under the Plan on                      {insert Redemption Date, which shall be no later than December  15 (and, for employees subject to United States federal income taxes, shall not be earlier than January 1) of the first calendar year commencing after the year in which the Employee ceases to be any of an employee or director of the Corporation or of an Affiliate} .

 

 

   

 

Date     (Name of Employee)
   

 

    (Signature of Employee)

If the Redemption Notice is signed by a legal representative, documents providing the authority of such signature must be provided to the Corporation.

 

C-1


Special Appendix

to

DEFERRED SHARE UNIT PLAN FOR EMPLOYEES OF

ENCANA CORPORATION

Special Provisions Applicable to Eligible Employees Subject to Section 409A of the United States Internal Revenue Code

This special appendix sets forth special provisions of the Plan that apply to US Employees. This special appendix shall become effective on October 22, 2008; however, Sections 2.4 and 2.6 of this special appendix shall not apply in the case of a US Employee’s termination or death that occurs in 2008. For avoidance of doubt, nothing in this special appendix shall be deemed to modify the Plan as it relates to Eligible Employees who are not US Employees.

 

1. Definitions

For purposes of this special appendix:

 

1.1 Code ” means the United States Internal Revenue Code of 1986, as amended, and any applicable Treasury Regulations and other binding regulatory guidance thereunder.

 

1.2 Section 409A ” means section 409A of the Code.

 

1.3 Separation From Service ” shall have the meaning set forth in Section 409A(a)(2)(A)(i) of the Code.

 

1.4 Specified Employee ” means a US Employee who meets the definition of “specified employee,” as defined in Section 409A(a)(2)(B)(i) of the Code.

 

1.5 US Employee ” means an Eligible Employee subject to Section 409A.

 

2. Compliance with Section 409A

 

2.1 In General . Notwithstanding any provision of the Plan to the contrary, it is intended that, with respect to US Employees, the provisions of the Plan comply with Section 409A, and all provisions of the Plan shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. Each US Employee is solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on or for the account of such US Employee in connection with the Plan or any other Plan maintained by the Corporation (including any taxes and penalties under Section 409A), and neither the Corporation nor any affiliate of the Corporation shall have any obligation to indemnify or otherwise hold such US Employee (or any beneficiary) harmless from any or all of such taxes or penalties.


Special Appendix to

Deferred Share Unit Plan for Employees

   Page ii

 

2.2 Election to Receive Deferred Share Units . A US Employee who wishes to have all or any part of his potential incentive compensation award under the Bonus Plan for a given calendar year paid as HPR DSUs shall irrevocably elect payment in the form of HPR DSUs prior to the commencement of the calendar year during which the potential incentive compensation award under the Bonus Plan is to be earned. Such election shall be made in accordance with procedures established by the Committee for such purpose. Any election made under this Section 2.2 shall apply to potential incentive compensation awards under the Bonus Plan earned in future calendar years unless and until the US Employee makes a later election in accordance with the terms of this Section 2.2.

 

2.3 Committee’s Ability to Decline to Issue HPR DSUs . Notwithstanding anything in the Plan to the contrary, the Committee may only exercise its discretion pursuant to Sections 4.3 and 4.4 of the Plan either to elect or decline to award HPR DSUs in respect of a particular Performance Period (notwithstanding an election by a US Employee to participate in the Plan for the Performance Period) if it does so on or before the deadline for the US Employee to elect payment in the form of HPR DSUs pursuant to Section 2.2.

 

2.4 Distributions to US Employees . Notwithstanding the provisions of Section 6.1 of the Plan to the contrary, the value of a US Employee’s Deferred Share Unit Account shall be redeemed during the calendar year next following the calendar year in which the US Employee’s Termination Date occurs. If the US Employee does not select a Redemption Date, his Deferred Share Unit Account shall be redeemed by the Committee in sufficient time so that payment may be made on the last business day of the calendar year following the year in which the US Employee’s Termination Date occurs. For avoidance of doubt, a US Employee may not specify a Redemption Date that is earlier than January 1 or later than December 15 of the calendar year following the calendar year in which the US Employee’s Termination Date occurs. A US Employee’s Termination Date shall be the date on which the US Employee experiences a Separation From Service or dies. If the US Employee’s Termination Date results from the US Employee’s death, payments shall be deemed for purposes of Section 409A to be made upon death rather than Separation From Service, and shall be paid pursuant to Section 2.6.

 

2.5 Distributions to Specified Employees . Solely to the extent required by Section 409A, Deferred Share Unit Accounts which become redeemable on account of the Separation From Service of a US Employee who is determined to be a Specified Employee shall not be redeemed and paid before the date which is 6 months after the Specified Employee’s Separation from Service (or, if earlier, the date of death of the Specified Employee).

 

2.6

Distributions on Death . The Deferred Share Unit Account of a US Employee whose Termination Date results from death shall be redeemed and paid to the US Employee’s estate during the calendar year next following the calendar year in which the death occurs. If the US Employee (or the US Employee’s estate) does not select a Redemption Date, his Deferred Share Unit Account shall be redeemed by the Committee in sufficient time so that payment may be made on the last business day of the calendar year following the year in which the death


Special Appendix to

Deferred Share Unit Plan for Employees

   Page iii

 

  occurs. To the extent payment pursuant to this Section 2.6 could be made in more than one calendar year, neither the US Employee nor the US Employee’s estate may select, directly or indirectly, the calendar year in which the payment will be made.

 

2.7 Notwithstanding anything contained in this Special Appendix, if a US Employee becomes subject to tax pursuant to the provisions of the Income Tax Act (Canada), on amounts under the Plan prior to receipt of such amounts pursuant to Section 2.4 or 2.6 of this Special Appendix, a portion of the US Employee’s Deferred Share Unit Account shall be redeemed so that payment may be made in an amount equal to the “Tax Payment Amount” as soon as practicable (but not later than 90 days) after the date such amounts become subject to tax pursuant to the provisions of the Income Tax Act (Canada). The “Tax Payment Amount” shall equal the amount of taxes due by the US Employee (or the US Employee’s estate) under the Income Tax Act (Canada) on amounts under the Plan, plus, to the maximum extent permitted under Section 409A, an amount necessary to pay any (a) income taxes required to be withheld on wages under section 3401 of the Code as a result of payments made pursuant to this section 2.7 and (b) FICA taxes imposed under section 3101, 3121(a) and 3121(v)(2) that are required to be withheld as a result of payments made pursuant to this Section 2.7.

 

3. Amendment of Appendix

The Board shall retain the power and authority to amend or modify this special appendix to the extent the Board in its sole discretion deems necessary or advisable to comply with any guidance issued under Section 409A. Such amendments may be made without the approval of any US Employee.

* * * *

Exhibit 10.17

 

LOGO

DEFERRED SHARE UNIT PLAN FOR DIRECTORS

OF ENCANA CORPORATION

Adopted with effect from December 18, 2002 and reflective with

amendments made as of April 26, 2005, October 22, 2008,

December 8, 2009, July 20, 2010, February 13, 2013 and December 1, 2014


TABLE OF CONTENTS

 

Section

  

Page

 

1.

  PREAMBLE AND DEFINITIONS      1   

2.

  CONSTRUCTION AND INTERPRETATION      3   

3.

  ELIGIBILITY      3   

4.

  DEFERRED SHARE UNIT GRANTS      4   

5.

  ACCOUNTS, DIVIDEND EQUIVALENTS AND REORGANIZATION      6   

6.

  REDEMPTION ON RETIREMENT OR DEATH      7   

7.

  CURRENCY      8   

8.

  SHAREHOLDER RIGHTS      9   

9.

  ADMINISTRATION      9   

10.

  ASSIGNMENT      9   

Schedules were amended effective December  1, 2014 :

 

Schedule A    Participation Agreement   
Schedule B    Election Notice   
Schedule C    Redemption Notice   
Special Appendix            Special Provisions Applicable to Directors Subject to Section 409A of the United States Internal Revenue Code


DEFERRED SHARE UNIT PLAN FOR DIRECTORS

OF ENCANA CORPORATION

(Adopted with effect from December 18, 2002 and reflective with

amendments made as of April 26, 2005, October 22, 2008,

December 8, 2009, July 20, 2010, February 13, 2013 and December 1, 2014.)

 

1. PREAMBLE AND DEFINITIONS

 

  1.1 Title

The Plan herein described shall be called the “Deferred Share Unit Plan for Directors of Encana Corporation”.

 

  1.2 Purpose of the Plan

The purpose of the Plan is to promote a greater alignment of interests between Directors and the shareholders of the Corporation.

 

  1.3 Definitions

 

  1.3.1 “Affiliate” means an affiliate of the Corporation as the term “affiliate” is defined in paragraph 3 of Canada Customs and Revenue Agency Interpretation Bulletin IT-337R3, Retiring Allowances .

 

  1.3.2 “Annual Remuneration” means:

 

  1.3.2.1 for all periods ending on or before December 31, 2014, all amounts payable to a Director or the Chairman of the Board by the Corporation in respect of the services provided to the Corporation by the Director or the Chairman of the Board as a member of the Board in a calendar year, including without limitation (i) the annual base retainer fee for serving as a Director, (ii) the annual retainer fee for serving as a member of a Board committee, (iii) the annual retainer fee for chairing a Board committee, (iv) the fees for attending meetings of the Board or Board committees, but excluding (x) amounts received by a Director or Chairman of the Board as a reimbursement for expenses incurred in attending meetings and (y) the initial and annual grants of Deferred Share Units granted pursuant to Sections 4.1 and 4.3 hereof; and

 

  1.3.2.2

for all periods commencing on or after January 1, 2015, all amounts payable to a Director or the Chairman of the Board by the Corporation in respect of the services provided to the Corporation by such person in his or her capacity as a member of the Board and/or Chairman of the Board in a calendar year, including without limitation (i) the annual Board retainer payable for serving as a Director, (ii) the annual retainer payable for chairing a Board committee and (iii) in the case of the Chairman of the Board, all amounts payable to the


Encana Corporation

Deferred Share Unit Plan for Directors

(With amendments as of December 1, 2014)

   Page 2

 

  Chairman of the Board in a calendar year as annual retainer for serving as Chairman of the Board, but excluding (x) all amounts received by a Director or Chairman of the Board as a reimbursement for expenses incurred in connection with their service to the Corporation as a Director or Chairman of the Board; and (y) the initial and annual grants of Deferred Share Units granted pursuant to Sections 4.1 and 4.3 hereof;

 

  1.3.3 “Blackout Period” means a trading blackout period imposed by the Corporation under the Corporation’s Securities Trading & Insider Reporting Policy (as amended, supplemented or replaced from time to time);

 

  1.3.4 “Board” means the Board of Directors of the Corporation.

 

  1.3.5 “Cease Trade Date” has the meaning ascribed thereto in Section 6.3.

 

  1.3.6 “Chairman of the Board” means a director who is not an employee of the Corporation who has been elected or appointed as the non-executive Chairman of the Board of Encana Corporation.

 

  1.3.7 “Committee” means the Nominating and Corporate Governance Committee of the Board.

 

  1.3.8 “Conversion Date” means, with respect to any Quarter, the date used to determine the Market Value for purposes of determining the number of Deferred Share Units to be awarded in respect of that Quarter to a Director, which date shall be the date recommended by the Committee and confirmed by the Board and which shall for the Quarter commencing on the effective date of the Plan be the last day of that Quarter and thereafter shall generally be the last day of each Quarter and, in any event, shall not be earlier than the first business day, or later than December 31, of the year in respect of which the Deferred Share Units are being provided

 

  1.3.9 “Corporation” means Encana Corporation and any successor corporation whether by amalgamation, merger or otherwise.

 

  1.3.10 “Deferred Share Unit” means a bookkeeping entry on the books of the Corporation, the value of which on any particular date shall be equal to the Market Value.

 

  1.3.11 “Deferred Share Unit Account” has the meaning ascribed thereto in Section 5.1.

 

  1.3.12 “Director” means a director of the Corporation who is not an employee of the Corporation otherwise than in his or her capacity as a member of the Board, and for the purposes of this Plan does not include the Chairman of the Board .


Encana Corporation

Deferred Share Unit Plan for Directors

(With amendments as of December 1, 2014)

   Page 3

 

  1.3.13 “Market Value” means, with respect to a particular date, the closing price for a Share on the Stock Exchange on the Trading Day immediately prior to that date or, in the event of the Cease Trade Date, such other value as may be determined pursuant to Section 6.3.

 

  1.3.14 “Quarter” means a fiscal quarter of the Corporation, which, until changed by the Corporation, shall be the three month period ending March 31, June 30, September 30 or December 31 in any calendar year.

 

  1.3.15 “Redemption Date” has the meaning ascribed thereto in Section 6.1.

 

  1.3.16 “Share” means a common share of the Corporation and such other share as is substituted therefore as a result of amendments to the articles of the Corporation, reorganization or otherwise, including any rights that form a part of the common share or substituted share but not including any other rights that are attached thereto and trade therewith or any other share that is added thereto;

 

  1.3.17 “Stock Exchange” means The Toronto Stock Exchange, or if the Shares are not listed on The Toronto Stock Exchange, such other stock exchange on which the Shares are listed, or if the Shares are not listed on any stock exchange, then on the over-the-counter market.

 

  1.3.18 “Termination Date” has the meaning ascribed thereto in Section 6.1.

 

  1.3.19 “Trading Day” means any date on which the Stock Exchange is open for the trading of Shares and on which one or more Shares actually traded.

 

2. CONSTRUCTION AND INTERPRETATION

 

  2.1 In the Plan, references to the masculine include the feminine; references to the singular shall include the plural and vice versa, as the context shall require.

 

  2.2 The Plan shall be governed and interpreted in accordance with the laws of the Province of Alberta and the laws of Canada.

 

  2.3 If any provision of the Plan or part hereof is determined to be void or unenforceable in whole or in part, such determination shall not affect the validity or enforcement of any other provision or part thereof.

 

  2.4 Headings wherever used herein are for reference purposes only and do not limit or extend the meaning of the provisions herein contained.

 

3. ELIGIBILITY

 

  3.1 The Corporation is establishing the Plan, effective on December 18, 2002.


Encana Corporation

Deferred Share Unit Plan for Directors

(With amendments as of December 1, 2014)

   Page 4

 

  3.2 Nothing herein contained shall be deemed to give any person the right to be retained as a Director of the Corporation or an employee of the Corporation or of an Affiliate.

 

4. DEFERRED SHARE UNIT GRANTS

 

  4.1 Subject to the conditions stated herein:

 

  (i) For all periods commencing prior to January 1, 2010 each Director and the Chairman of the Board shall receive an annual grant of 5,000 Deferred Share Units;

 

  (ii) For all periods commencing after January 1, 2010 but prior to January 1, 2015 each Director and the Chairman of the Board shall receive an annual grant of 10,000 Deferred Share Units.

 

  (iii) For all periods commencing after January 1, 2015 each Director shall receive an annual grant of 9,800 Deferred Share Units and the Chairman of the Board shall receive an annual grant of 18,000 Deferred Share Units.

 

  4.2 The participation of a Director and the Chairman of the Board in the Plan shall be evidenced by a written agreement between the Corporation and the eligible Director in the form of Schedule A hereto. The first grant of Deferred Share Units shall be effective January 1, 2006. For years following 2006, each such annual grant of Deferred Share Units shall, except as otherwise provided in Sections 4.1 to 4.3, be effective on January 1 st of such year. Where January 1 st falls within a Blackout Period, then the date of such annual grant of Deferred Share Units shall automatically occur and be effective on the next business day following the last day of such Blackout Period.

 

  4.3 In the case of a Director or a Chairman of the Board who commences being a Director or a Chairman of the Board during a calendar year on a date which occurs after any annual grant of Deferred Share Units for that particular year:

 

  (i) in any such year occurring prior to 2010, each such Director or Chairman of the Board shall receive 5,000 Deferred Share Units;

 

  (ii) in any such year occurring in or after 2010 but prior to 2015, 10,000 Deferred Share Units shall be granted to each Director or the Chairman of the Board, in each such case under this Section 4.3 (i) or (ii) on the date on which such Director or Chairman of the Board is first elected or appointed to the Board;

 

  (iii) in any such year occurring in or after 2015, 9,800 Deferred Share Units shall be granted to each Director and 18,000 Deferred Share Units shall be granted to the Chairman of the Board on the date on which such Director and Chairman of the Board are first elected or appointed to the Board.


Encana Corporation

Deferred Share Unit Plan for Directors

(With amendments as of December 1, 2014)

   Page 5

 

The foregoing notwithstanding, effective December 1, 2014, any grant of Deferred Share Units made pursuant to this Section 4.3 shall be subject to pro-rata adjustment based on the proportion the number of calendar days in the calendar year during which such individual was a Director or Chairman of the Board is of 365 days. Where any date specified herein for the grant of Deferred Share Units falls on a date which is within a Blackout Period, then the date of such grant of Deferred Share Units shall automatically occur and be effective on the next business day following the last day of such Blackout Period.

 

  4.4 Subject to Sections 4.5 through 4.7 and such rules, regulations, approvals and conditions as the Committee may impose, a Director or Chairman of the Board may also elect to receive his Annual Remuneration for years commencing with 2003 in the form of Deferred Share Units or cash or any combination thereof.

 

  4.5 To elect to receive all or a portion, as specified in Section 4.6, of his Annual Remuneration in respect of the 2003 year in the form of Deferred Share Units, a Director or the Chairman of the Board, as the case may be, shall complete and deliver to the Corporate Secretary of the Corporation an initial written election in the form attached as Schedule B hereto by no later than 15 business days before the end of the 1st Quarter of 2003, which shall, subject to Section 4.7, apply to all Annual Remuneration payable on and after the end of such Quarter.

 

  4.6 A Director or the Chairman of the Board shall be entitled to elect on an irrevocable basis, subject to Section 4.5 and Section 4.7, one of the following four (4) options with respect to the payment of his Annual Remuneration:

 

  (i) 25% of the Director’s or Chairman of the Board’s Annual Remuneration in the form of Deferred Share Units;

 

  (ii) 50% of the Director’s or Chairman of the Board’s Annual Remuneration in the form of Deferred Share Units;

 

  (iii) 75% of the Director’s or Chairman of the Board’s Annual Remuneration in the form of Deferred Share Units; or

 

  (iv) 100% of the Director’s or Chairman of the Board’s Annual Remuneration in the form of Deferred Share Units.

 

  4.7

A Director’s or Chairman of the Board’s latest election received by the Corporate Secretary of the Corporation with respect to the percentages of his Annual Remuneration to be provided in the form of Deferred Share Units and cash (if applicable) shall be irrevocable and shall continue to apply with respect to Annual Remuneration for the year commencing immediately following the date of the election and for any subsequent year unless the Director or Chairman of the Board wishes to change the portion of his Annual Remuneration to be provided in the form of Deferred Share Units for subsequent years. In order to effect such a change, the Director or the Chairman of the Board shall complete and deliver to the Corporate Secretary of the Corporation a new written election, in the form prescribed by the Committee, in accordance with Section 4.6 which shall be effective for all Annual Remuneration payable in respect of all calendar years


Encana Corporation

Deferred Share Unit Plan for Directors

(With amendments as of December 1, 2014)

   Page 6

 

  commencing after the date on which such new election is delivered (unless subsequently changed again for future years in accordance with this Section 4.7).

 

  4.8 The portion of Annual Remuneration payable to a Director or Chairman of the Board in respect of a Quarter or other period within the year to which such Annual Remuneration relates shall be paid in cash (net of applicable withholdings) or provided in the form of Deferred Share Units as set out in Section 5.1 as soon as practicable after the last day of each Quarter or such other applicable period in respect of which the Annual Remuneration may be payable, provided that, notwithstanding any election by a Director or Chairman of the Board under the Plan, the Committee may, in its sole discretion, decline to award Deferred Share Units on account of his Annual Remuneration and instead require the Director or Chairman of the Board, as the case may be, to receive such Annual Remuneration in cash. Where any date specified herein for the grant of Deferred Share Units falls on a date which is within a Blackout Period, then the date of such grant of Deferred Share Units shall automatically occur and be effective on the second Trading Day immediately following the end of such Blackout Period to permit the Market Value of any such Deferred Share Units to be determined on a Trading Day which occurs immediately following the end of any such Blackout Period.

 

5. ACCOUNTS, DIVIDEND EQUIVALENTS AND REORGANIZATION

 

  5.1 An account, to be known as a “Deferred Share Unit Account” shall be maintained by the Corporation for each Director and the Chairman of the Board and will be credited with grants of Deferred Share Units received by a Director and the Chairman of the Board from time to time. Where Deferred Share Units are granted pursuant to Section 4.8, such Deferred Share Units shall be credited to the eligible Deferred Share Unit Account as of the Conversion Date applicable for the Quarter or other period to which the Deferred Share Units relate. The number of Deferred Share Units to be credited to a Deferred Share Unit Account as of a particular Conversion Date shall be determined by dividing (i) the portion of the Annual Remuneration for the applicable Quarter or other applicable period to be satisfied by Deferred Share Units as elected by the Director or the Chairman of the Board, as the case may be, pursuant to any of options (i) through (iv) of Section 4.6, by (ii) the Market Value on the particular Conversion Date. Deferred Share Units will be fully vested upon being credited to a Deferred Share Unit Account and the entitlement to payment of such Deferred Share Units at a Director’s or the Chairman of the Board’s Termination Date shall not thereafter be subject to satisfaction of any requirements as to any minimum period of membership on the Board or other conditions.

 

  5.2

Whenever cash dividends are paid on the Shares, additional Deferred Share Units will be credited to each Deferred Share Unit Account. The number of such additional Deferred Share Units will be calculated by dividing the dividends that would have been paid if the Deferred Share Units recorded in the Deferred Share Unit Account as at the record date for the cash dividend had been Shares by the Market Value on the date on which the dividends are paid on the Shares. Notwithstanding the foregoing, following a Cease Trade Date, the value of a


Encana Corporation

Deferred Share Unit Plan for Directors

(With amendments as of December 1, 2014)

   Page 7

 

  Share (or the share of a Related Corporation) used to calculate the number of additional Deferred Share Units under this Section 5.2 shall be the value determined on a reasonable and equitable basis by the Board. Where the date on which dividends are deemed paid on the Deferred Share Units falls on a date which is within a Blackout Period, then the deemed dividend payment date shall automatically occur and be effective on the second Trading Day immediately following the end of such Blackout Period to permit the Market Value to be determined on a Trading Day which occurs immediately following the end of any such Blackout Period.

 

  5.3 In the event of any stock dividend, stock split, combination or exchange of shares, merger, arrangement, re-organization, re-capitalization, consolidation, spin-off or other distribution (other than normal cash dividends) of Corporation assets to shareholders, or any other similar changes affecting the Shares, such proportionate adjustments, to reflect such change or changes shall be made with respect to the number of Deferred Share Units outstanding under the Plan, all as determined by the Board in its sole discretion.

 

  5.4 For greater certainty, no amount will be paid to, or in respect of, a Director or the Chairman of the Board under the Plan or pursuant to any other arrangement, and no additional Deferred Share Units will be granted to a Director or the Chairman of the Board to compensate for a downward fluctuation in the fair market value of the Shares, nor will any other form of benefit be conferred upon, or in respect of, a Director or the Chairman of the Board for such purpose.

 

6. REDEMPTION ON RETIREMENT OR DEATH

 

  6.1

The value of the Deferred Share Units credited to a Deferred Share Unit Account shall be redeemable by the Director or the Chairman of the Board (or, where the Director or the Chairman of the Board has died, his estate) at the Director’s or the Chairman of the Board’s option (or after the Director’s or the Chairman of the Board’s death at the option of his legal representative) following the event, including death, causing the Director or the Chairman of the Board to be no longer a director or an employee of the Corporation, or a director or employee of an Affiliate (the “Termination Date”). The Director or the Chairman of the Board (or after the Director’s or Chairman of the Board’s death, his legal representative) shall, by filing a written notice of redemption in the form of Schedule C hereto with the Corporate Secretary of the Corporation, specify the number of Deferred Share Units to be redeemed and a redemption date (the “Redemption Date”) in respect of such Deferred Share Units which in any event must be after the date on which the notice of redemption is filed with the Corporation and within the period from the Termination Date to December 15 of the first calendar year commencing after the Termination Date (the “Redemption Deadline”). A Director or the Chairman of the Board (or after the Director’s or the Chairman of the Board’s death, his legal representative) shall be entitled to file one or more additional notices of redemption in accordance with the foregoing terms until such time as all of the Deferred Share Units credited to the corresponding Deferred Share Unit Account have been redeemed. In the event the Director or the Chairman of the Board or his respective legal representative has made no such election or has failed to redeem all Deferred Share Units credited to the


Encana Corporation

Deferred Share Unit Plan for Directors

(With amendments as of December 1, 2014)

   Page 8

 

  corresponding Deferred Share Unit Account prior to the Redemption Deadline, the Corporation shall be entitled to deem any such unredeemed Deferred Share Units as redeemed by the Director or the Chairman of the Board or his respective legal representative effective as of the Redemption Deadline.

 

  6.2 The value of the Deferred Share Units redeemed by or in respect of a Director or the Chairman of the Board pursuant to Section 6.1 shall be the Market Value on the applicable Redemption Date and shall be paid to the Director or the Chairman of the Board (or, if the Director or Chairman of the Board has died, to his estate) in the form of a lump sum cash payment, net of any applicable withholdings as soon as practicable after the applicable Redemption Date, provided that in any event such payment date shall be no later than December 31 of the first calendar year commencing after the Termination Date.

 

  6.3 In the event that any applicable Redemption Date is after the date on which the Shares ceased to be traded on the Stock Exchange, provided such cessation in trading is not reasonably expected to be temporary (the “Cease Trade Date”), the value of the Deferred Share Units redeemed by or in respect of the Director or the Chairman of the Board on such Redemption Date pursuant to Section 6.1 shall be determined in accordance with the following:

 

  (a) where the Termination Date is before or not more than 365 days after the last Trading Day before the Cease Trade Date, the value of each Deferred Share Unit credited to the corresponding Deferred Share Unit Account at Redemption Date shall be equal to the Market Value on the last Trading Day before the Cease Trade Date;

 

  (b) where the Termination Date is after the date that is 365 days after the last Trading Day before the Cease Trade Date, the value of each Deferred Share Unit credited to the Deferred Share Unit Account at Redemption Date shall be based on the fair market value of a share of the Corporation or of a corporation related thereto at Redemption Date as is determined on a reasonable and equitable basis by the Board after receiving the advice of one or more independent firms of investment bankers of national repute.

The value of Deferred Share Units determined in accordance with paragraph (a) or (b) of this Section 6.3, as applicable, shall be paid to the Director or the Chairman of the Board (or, if the Director or the Chairman of the Board has died, to his estate) in the form of a lump sum cash payment, net of any applicable withholdings as soon as practicable after the applicable Redemption Date, provided that in any event such payment date shall be no later than December 31 of the first calendar year commencing after the Termination Date.

 

7. CURRENCY

 

  7.1 All references in the Plan to currency refer to lawful Canadian currency.


Encana Corporation

Deferred Share Unit Plan for Directors

(With amendments as of December 1, 2014)

   Page 9

 

8. SHAREHOLDER RIGHTS

 

  8.1 Deferred Share Units are not Shares or other securities of the Corporation and will not entitle a Director or the Chairman of the Board to any shareholder rights, including, without limitation, voting rights, dividend entitlement or rights on liquidation.

 

9. ADMINISTRATION

 

  9.1 Unless otherwise determined by the Board, the Plan shall remain an unfunded and unsecured obligation of the Corporation.

 

  9.2 Unless otherwise determined by the Board, the Plan shall be administered by the Committee.

 

  9.3 The Plan may be amended or terminated at any time by the Board, except as to rights already accrued hereunder by the Directors and the Chairman of the Board. Notwithstanding the foregoing, any amendment or termination of the Plan shall be such that the Plan continuously meets the requirements of paragraph 6801(d) of the Income Tax Regulations or any successor provision thereto.

 

  9.4 The Corporation will be responsible for all costs relating to the administration of the Plan.

 

10. ASSIGNMENT

 

  10.1 The assignment or transfer of the Deferred Share Units, or any other benefits under this Plan, shall not be permitted other than by operation of law.

* * * *


Schedule A

Deferred Share Unit Plan for Directors of

Encana Corporation (the “Plan”)

PARTICIPATION AGREEMENT – Sections 4.1 to 4.3 of the Plan

I hereby confirm that, as of the date written below, I am a member of the Board of Directors of Encana Corporation and acknowledge that I will be granted Deferred Share Units (“DSUs”) under Sections 4.1 to 4.3 of the Plan on an annual basis subject to and in accordance with the terms of the Plan.

I confirm that:

 

  1. I have received and reviewed a copy of the terms of the Plan and agree to be bound by them.

 

  2. I understand that my DSUs granted under the Plan may not be redeemed by Encana Corporation (the “Corporation”) until I am no longer either a director or an employee of the Corporation or of an Affiliate.

 

  3. I recognize that when DSUs credited pursuant to the Plan are redeemed in accordance with the terms of the Plan after I am no longer either a director or employee of the Corporation or of an Affiliate, income tax and other withholdings as required will arise at that time. Upon redemption of the DSUs, the Corporation will make all appropriate withholdings as required by law at that time.

 

  4. The value of DSUs are based on the value of the common shares of the Corporation from time to time and therefore are not guaranteed.

 

  5. No funds will be set aside to guarantee the payment of DSUs. Future payment of DSUs will remain an unfunded and unsecured liability recorded on the books of the Corporation.

 

  6. I understand that, to the extent I am (or become) subject to United States federal income taxes, my DSUs credited pursuant to the Plan, and my rights with respect to such DSUs, will be subject to the terms of the Special Appendix to the Plan (the “Special Appendix”), which Special Appendix contains terms and conditions that are intended to cause DSUs to comply with Section 409A of the United States Internal revenue Code. I also understand that the Special Appendix is a part of the Plan and references to the Plan shall be deemed to include a reference to the Special Appendix, to the extent applicable.

The foregoing is only a brief outline of certain key provisions of the Plan. For more complete information, reference should be made to the Plan text which governs in the case of a conflict or inconsistency with this Participation Agreement. All capitalized expressions used herein shall have the same meaning as in the Plan unless otherwise defined herein.

 

 

   

 

Date     (Name of Director)
   

 

    (Signature of Director)

 

A-1


Schedule B

Deferred Share Unit Plan for

Directors of Encana Corporation (the “Plan”)

ELECTION NOTICE – Section 4.5 of the Plan

 

I. Election

Subject to Part II of this Notice, I hereby elect to receive:

} 25%            or             } 50%            or            } 75%            or            } 100%

of the Annual Remuneration that may be payable to me after the effective date of this election in the form of Deferred Share Units (“DSUs”) and the balance of any such Annual Remuneration in cash, net of applicable withholdings.

 

II. Acknowledgement

I confirm and acknowledge that:

 

  1. I have received and reviewed a copy of the terms of the Plan and agree to be bound by them.

 

  2. I understand that, notwithstanding this election, subject to the terms of the Special Appendix (as defined below), if applicable, the Committee retains discretion to decline to grant DSUs, in which case I will remain eligible to receive my Annual Remuneration in cash.

 

  3. My DSUs granted under the Plan may not be redeemed by Encana Corporation (the “Corporation”) or any Affiliate thereof until I am no longer either a director or an employee of the Corporation or an Affiliate.

 

  4. When DSUs credited to my account pursuant to this election are redeemed in accordance with the terms of the Plan after I am no longer either a director or employee of the Corporation or any Affiliate, income tax and other withholdings as required will arise at that time. Upon redemption of the DSUs, the Corporation will make all appropriate withholdings as required by law at that time.

 

  5. The value of DSUs are based on the value of the common shares of the Corporation and therefore are not guaranteed.

 

  6. No funds will be set aside to guarantee the payment of DSUs. Future payment of DSUs will remain an unfunded liability recorded on the books of the Corporation.

 

  7.

This election is irrevocable with respect to Annual Remuneration payable after the effective date described in Part III below, subject to my right under the Plan to make a new election with respect to Annual Remuneration payable in calendar

 

B-1


  years commencing after such new election notice is received by the Corporate Secretary of the Corporation.

 

  8. The foregoing is only a brief outline of certain key provisions of the Plan. In the event of any discrepancy between the terms of the Plan and the terms of this Election Notice, the terms of the Plan shall prevail. All capitalized expressions used herein shall have the same meaning as in the Plan unless otherwise defined herein.

 

  9. To the extent I am (or become) subject to United States federal income taxes, my DSUs credited pursuant to the Plan, and my rights with respect to such DSUs, will be subject to the terms of the Special Appendix to the Plan (the “Special Appendix”), which Special Appendix contains terms and conditions that are intended to cause DSUs to comply with Section 409A of the United States Internal revenue Code. I also understand that the Special Appendix is a part of the Plan and references to the Plan shall be deemed to include a reference to the Special Appendix, to the extent applicable.

 

III. Effective Date

This election shall be effective for the year commencing after the date on which this election is received by the Corporate Secretary of the Corporation.

 

 

   

 

Date     (Name of Director)
   

 

    (Signature of Director)

 

B-2


Schedule C

Deferred Share Unit Plan for

Directors of Encana Corporation (the “Plan”)

 

To: Corporate Secretary

Encana Corporation

REDEMPTION NOTICE

Pursuant to Section 6.1 of the Plan, I hereby advise Encana Corporation (the “Corporation) that I wish to redeem the number of Deferred Share Units specified below which are currently credited to my account under the Plan on the                                          {Redemption Date specified below, which shall be no later than December 15 (and for directors subject to United States federal income taxes, shall not be earlier than January 1) of the first calendar year commencing after the year in which the Director [or the Chairman of the Board, as applicable] ceases to be any of a director or an employee of the Corporation or of an Affiliate.}.

 

Number of Deferred Share Units redeemed:   

 

  
                   (If all, specify “All”)   

 

Redemption Date(s):   

 

  
   (Must be after the date which this Notice of Redemption is filed with the Corporation)   
   If multiple redemptions, specify the number of Deferred Share Units to be redeemed on the corresponding date.

If the Redemption Notice is signed by a legal representative, documents providing the authority of such signature must be provided to the Corporation.

Payment is to be received as follows ( check one) :

 

If Canadian:                             mailed to my home address                 direct deposit
If US:                 mailed to my home address                 wire transfer

Send cheque/check to:

 

Address:   

 

  

 

City:  

 

  Province/State:  

 

  Postal Code/Zip:   

 

  

If payment is direct deposited please complete the following if your banking information has changed and attach a void cheque/check:

 

Bank Name:   

 

  
Branch Address:   

 

  
City / Province:   

 

  
Branch Transit Number (5 digits):   

 

  
Bank Number (3 digits):   

 

  
Account Number:   

 

  

I hereby authorize Encana Corporation to credit payment, due to me to my account, which I certify is my account, is in my name and under my direction and control. I make this authorization to the financial institution above designated. I understand that if the information provided is incorrect or illegible, I will not receive payment until the correct information is received by Encana Corporation. If you are not supplying a void cheque/check, we require a document approved in writing from your banking institution confirming this information, or alternatively their stamp/approval that the information supplied on this form is correct. In completing this form, you are acknowledging all information to be accurate and correct to the best of your knowledge.

 

 

   

 

Date     (Name of Director)
   

 

    (Signature of Director)

Return this form to the Corporate Secretary of the Corporation as per Section 6.1 of the Encana Corporation Deferred Share Unit Plan for Directors.

 

C-1


Special Appendix

to

DEFERRED SHARE UNIT PLAN FOR DIRECTORS OF

ENCANA CORPORATION

Special provisions applicable to directors of Encana Corporation subject to

Section 409A of the United States Internal Revenue Code

This special appendix sets forth special provisions of the Plan that apply to U.S. Directors. This special appendix shall become effective on October 22, 2008; however, Sections 2.5 and 2.7 of this special appendix shall not apply in the case of a U.S. Director’s termination or death that occurs in 2008. For avoidance of doubt, nothing in this special appendix shall be deemed to modify the Plan as it relates to directors of Encana Corporation who are not U.S. Directors.

 

1. Definitions

For purposes of this special appendix:

 

1.1 Code ” means the United States Internal Revenue Code of 1986, as amended, and any applicable Treasury Regulations and other binding regulatory guidance thereunder.

 

1.2 Section 409A ” means section 409A of the Code.

 

1.3 Separation From Service ” shall have the meaning set forth in Section 409A(a)(2)(A)(i) of the Code.

 

1.4 Specified Employee ” means a U.S. Director who meets the definition of “specified employee,” as defined in Section 409A(a)(2)(B)(i) of the Code.

 

1.5 U.S. Director ” means a director of Encana Corporation subject to Section 409A.

 

2. Compliance with Section 409A

 

2.1 In General . Notwithstanding any provision of the Plan to the contrary, it is intended that, with respect to U.S. Directors, the provisions of the Plan comply with Section 409A, and all provisions of the Plan shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. Each U.S. Director is solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on or for the account of such U.S. Director in connection with the Plan or any other Plan maintained by the Corporation (including any taxes and penalties under Section 409A), and neither the Corporation nor any affiliate of the Corporation shall have any obligation to indemnify or otherwise hold such U.S. Director (or any beneficiary) harmless from any or all of such taxes or penalties.

 

2.2

Election to Receive Deferred Share Units . A U.S. Director who wishes to have all or any part of his Annual Remuneration for a given calendar year paid as Deferred Share Units shall irrevocably elect payment in the form of Deferred Share Units prior to the commencement of the calendar year during which the Annual Remuneration is to be earned. Notwithstanding the foregoing, to the extent permitted by Section 409A, in the first calendar year in which a U.S. Director becomes eligible to participate in the Plan,


Special Appendix

Deferred Share Unit Plan for

Directors of Encana Corporation

   Page 2

 

  the U.S. Director may elect payment of all or any part of the Annual Remuneration payable for services to be performed after the election in the form of Deferred Share Units, provided that such election is made within 30 days after the date the U.S. Director first becomes eligible to participate in the Plan. Any election under this Section 2.2 shall be made in accordance with procedures established by the Committee for such purpose. Any election made under this Section 2.2 shall apply to the Annual Remuneration earned in future calendar years unless and until the U.S. Director makes a later election in accordance with the terms of this Section 2.2.

 

2.3 Payment Deadline for Annual Remuneration Paid in Cash . Notwithstanding Section 4.8 of the Plan, payment of the Annual Remuneration payable in cash shall in all events be paid within 60 days after the last day of each Quarter.

 

2.4 Committee’s Ability to Decline to Issue Deferred Share Units . Notwithstanding Section 4.8 of the Plan, the Committee may only exercise its discretion pursuant to Section 4.8 of the Plan to decline to award Deferred Share Units for a given calendar year (notwithstanding an election by a U.S. Director under the Plan to have all or any part of his Annual Remuneration for a given calendar year paid as Deferred Share Units) if it does so on or before the deadline for the U.S. Director to make such election pursuant to Section 2.2.

 

2.5 Distributions to U.S. Directors . Notwithstanding the provisions of Section 6.1 of the Plan to the contrary, the value of a U.S. Director’s Deferred Share Unit Account shall be redeemed during the calendar year next following the calendar year in which the U.S. Director’s Termination Date occurs. If the U.S. Director does not select one or more Redemption Dates such that all Deferred Share Units in a U.S. Director’s Deferred Share Unit Account are redeemed, his Deferred Share Unit Account shall be redeemed by the Committee in sufficient time so that payment may be made on the last business day of the calendar year following the year in which the Termination Date occurs. For avoidance of doubt, a U.S. Director may not specify any Redemption Date that is earlier than January 1 or later than December 15 of the calendar year following the calendar year in which the Termination Date occurs. The Termination Date shall be the date on which the U.S. Director experiences a Separation From Service or dies. If the Termination Date results from the U.S. Director’s death, payments shall be deemed for purposes of Section 409A to be made upon death rather than Separation From Service, and shall be paid pursuant to Section 2.7.

 

2.6 Distributions to Specified Employees . Solely to the extent required by Section 409A, Deferred Share Unit Accounts which become redeemable on account of the Separation From Service of a U.S. Director who is determined to be a Specified Employee shall not be redeemed and paid before the date which is 6 months after the Specified Employee’s Separation from Service (or, if earlier, the date of death of the Specified Employee).

 

2.7

Distributions on Death . The Deferred Share Unit Account of a U.S. Director whose Termination Date results from death shall be redeemed and paid to the U.S. Director’s estate during the calendar year next following the calendar year in which the death occurs. If the U.S. Director (or the U.S. Director’s estate) does not select an applicable Redemption Date, his Deferred Share Unit Account shall be redeemed by the


Special Appendix

Deferred Share Unit Plan for

Directors of Encana Corporation

   Page 3

 

  Committee in sufficient time so that payment may be made on the last business day of the calendar year following the year in which the death occurs.

 

2.8 Notwithstanding anything contained in this Special Appendix, if a U.S. Director becomes subject to tax pursuant to the provisions of the Income Tax Act (Canada), on amounts under the Plan prior to receipt of such amounts pursuant to Section 2.5 or 2.7 of this Special Appendix, a portion of the U.S. Director’s Deferred Share Unit Account shall be redeemed so that payment may be made in an amount equal to the “Tax Payment Amount” as soon as practicable (but not later than 90 days) after the date such amounts become subject to tax pursuant to the provisions of the Income Tax Act (Canada). The “Tax Payment Amount” shall equal the amount of taxes due by the U.S. Director (or the U.S. Director’s estate) under the Income Tax Act (Canada) on amounts under the Plan, plus an additional amount to cover any taxes imposed on the payment made pursuant to this Section 2.8 to the maximum extent permitted under Section 409A.

 

3. Amendment of Appendix

The Board shall retain the power and authority to amend or modify this special appendix to the extent the Board in its sole discretion deems necessary or advisable to comply with any guidance issued under Section 409A. Such amendments may be made without the approval of any U.S. Director.

* * * *

Exhibit 10.18

CHANGE IN CONTROL AGREEMENT

THIS AGREEMENT made as of the 1 st day of January, 2007.

BETWEEN

ENCANA CORPORATION , a body corporate registered in the Province of Alberta, (the “Corporation”)

OF THE FIRST PART

-and-

SHERRI A. BRILLON of the City of Calgary in the Province of Alberta (the “Executive”)

OF THE SECOND PART

WHEREAS the Board of Directors of the Corporation (the “Board”) recognizes that the establishment and maintenance of a sound and vital management team is essential to the protection and enhancement of the best interests of the Corporation and its shareholders;

AND WHEREAS the Board further recognizes that an employee is most vulnerable at the point of termination from employment;

AND WHEREAS the Board further recognizes that, as is the case with many corporations, the possibility of a Change in Control of the Corporation could arise and create a climate of uncertainty among the Corporation’s senior executives, and could result in the resignation or distraction of such senior executives to the detriment of the Corporation and its shareholders;

AND WHEREAS, the Board believes it is important, should the Corporation or its shareholders receive a proposal for transfer of control of the Corporation, that the Executive be able to assess and advise the Board whether such proposal would be in the best interests of the Corporation and its shareholders and to take such other action regarding such proposal as the Board might determine to be appropriate, without being influenced by the uncertainties of her own situation;

AND WHEREAS, in order to induce the Executive to remain in the employ of the Corporation and to assure the Corporation of her continued and undivided attention and services, notwithstanding any events which might result in a Change in Control of the Corporation, this Agreement, which has been approved by the Board, records certain benefits extended to the Executive.

NOW THEREFORE, in consideration of the covenants and agreements hereinafter set forth and for other good and valuable consideration (the receipt and sufficiency whereof are hereby acknowledged by each of the Parties), the Parties hereby mutually covenant and agree as follows:


1.0 Term of Agreement

 

  1.1 Term . This Agreement shall commence on the date hereof and shall continue in effect through December 31, 2007; provided, however, that commencing on January 1, 2008 and each January 1 thereafter, the term of this Agreement shall automatically be extended for one additional year until such time as there shall occur a Change in Control of the Corporation and for a period of three years from the Effective Date of such Change in Control (the “Term”); provided, however, that if payment of compensation and benefits has begun under this Agreement, the payment of such compensation and benefits shall continue beyond the end of the Term in accordance with the applicable provisions of this Agreement.

 

2.0 Change in Control

 

  2.1 Compensation and Benefits not until. The Parties acknowledge and agree that no compensation or benefits shall be payable hereunder unless and until there shall have occurred both (i) a Change in Control of the Corporation and (ii) the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason in accordance with the terms of this Agreement.

 

  2.2 “Change in Control”. For purposes of this Agreement, a “Change in Control” of the Corporation shall be deemed to have occurred if:

 

  (a) any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity, or any persons acting jointly or in concert with the foregoing, is or becomes the beneficial owner directly or indirectly of, securities of the Corporation representing more than 30% of the combined voting power of the Corporation’s then outstanding securities entitled to vote in the election of the directors of the Corporation (the “Voting Shares”);

 

  (b) the Corporation shall have disposed of (i) all or substantially all of its assets, such that shareholder approval was required or should have been required to be obtained under the Canada Business Corporations Act , or (ii) assets in any 12 month period representing 50% or more of the total assets of the Corporation, determined as of the date of the audited financial statements of the Corporation then most recently published;

 

  (c)

pursuant to a single election or appointment or a series of elections or appointments over any period from and after the date of this Agreement (i) those individuals who at the date of the Agreement constituted the Board, together with (ii) any new or additional director or directors whose nomination for election by the Corporation’s shareholders, or whose appointment to the Board by the Board, has been approved by at least 75% of the votes cast by all of the directors then still in office, who either were

 

- 2 -


  directors at the date of this Agreement or whose appointment or nomination for election was previously so approved, cease for any reason to constitute a majority of the Board; or

 

  (d) the Board, by resolution duly adopted by the affirmative vote of a simple majority of the votes cast by the Board, determines that for purposes of this Agreement, a Change in Control of the Corporation has occurred.

 

  2.3 Employee Benefit Plans, etc. Securities beneficially owned or controlled or directed by an employee plan or related trust sponsored or maintained by the Corporation or its subsidiaries shall not be taken into account in determining whether the threshold percentage in Section 2.2(a) is exceeded.

 

  2.4 When Compensation and Benefits Payable . Upon the occurrence of both (i) a Change in Control of the Corporation and (ii) the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason as contemplated by the terms of this Agreement, the provisions of Section 5.0 hereof in respect of the compensation and benefits payable, as applicable, shall apply.

 

  2.5 Definitions and Interpretation . For purposes of this Section 2.0:

 

  (a) the term “acting jointly or in concert” shall have the meaning ascribed to it in Section 159 of the Securities Act (Alberta), as amended; and

 

  (b) the term “beneficial ownership” shall be interpreted in accordance with Section 158(4) of the Securities Act (Alberta) and “beneficial owner” shall have a corresponding meaning, except that for purposes of this Agreement, options and convertible securities granted by the Corporation to employees, officers or directors shall not be included in determining beneficial ownership or beneficial owner.

 

3.0 Definitions

For purposes of this Agreement and for purposes of determining such compensation and benefits as may be payable hereunder following the occurrence of a Change in Control of the Corporation, the following definitions shall apply:

 

  3.1 Cause ”. “Cause” means:

 

  (a)

the wilful and continued failure by the Executive to substantially perform her duties with the Corporation after a written demand for substantial performance is delivered to the Executive by the Board, which demand specifically identifies the manner in which the Board believes that the Executive has not substantially performed her duties, and the Executive fails to correct such failure to perform her duties within 30 days after such

 

- 3 -


  written demand is delivered to her; provided, however, that if such failure occurs after the happening of circumstances which would entitle the Executive to terminate for Good Reason, the same shall not constitute the basis for “Cause”; or

 

  (b) the wilful engaging by the Executive in conduct which is dishonest or demonstrably and materially injurious to the Corporation, monetarily or otherwise. For purposes of this definition, any action by the Executive or any failure on her part to act, shall be deemed “wilful” when done (or omitted to be done) by the Executive not in good faith and if when done (or omitted to be done) the Executive had or ought to have had the reasonable belief that her action or omission would not be in the best interests of the Corporation.

Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to her a copy of a resolution duly adopted by the Board, finding that in the good faith opinion of the Board, the Executive was guilty of conduct set forth in clause (a) or (b) of this Section and specifying the particulars thereof in detail.

 

  3.2 Effective Date ”. “Effective Date” means the date of the occurrence of the specified event constituting a Change in Control of the Corporation.

 

  3.3 Good Reason ”. “Good Reason” means any of the following, unless the Executive shall have given her express written consent thereto:

 

  (a) Changed Duties or Status . The assignment to the Executive of any duties inconsistent with her status as a senior executive of the Corporation or a material alteration in the nature or status of her responsibilities or duties or reporting relationship from those in effect immediately prior to a Change in Control of the Corporation;

 

  (b) Reduced Salary . A reduction by the Corporation in the Executive’s annual base salary as in effect on the date hereof or as the same may be increased from time to time except for across-the-board salary reductions similarly affecting all senior executives of the Corporation;

 

  (c) Relocation . The Corporation’s requiring the Executive to be based anywhere other than where the Executive is based at the time of a Change in Control of the Corporation, except for required travel on the Corporation’s business to an extent substantially consistent with the Executive’s business travel obligations in the ordinary course of business immediately prior to the Change in Control of the Corporation;

 

  (d)

Incentive Compensation Plans . Changes to the terms of the Corporation’s High Performance Results Plan (the “HPR Plan”) or any replacement plan

 

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  in which the Executive is participating as of the Change in Control (the “Annual Incentive Plans”), the stock option plan and the PSU Plan (as defined in Section 5.0 (e) hereof) of the Corporation or to such other long-term incentive plans as the Executive may be participating in, which would have the effect of materially reducing the Executive’s aggregate potential incentive compensation, except in circumstances where the Corporation alters or reduces the benefits available under such plans for all senior executives of the Corporation, and for greater certainty for the purposes of this Section 3.3(d), none of the level of grant made under the Corporation’s stock option plan to the Executive in the 2002 calendar year, nor the amount of award paid to the Executive in the 2002 calendar year relating to performance in the 2001 calendar year under the Corporation’s annual short term incentive plan shall be taken into account in determining the amount of incentive compensation from which a material reduction is measured;

 

  (e) Pension Plan, Benefit Plans and Perquisites . The failure by the Corporation to continue to provide the Executive:

 

  (i) with respect to her service before January 1, 2003, with pension and related benefits at least substantially similar to those enjoyed by her under the Retirement Plan for Employees of PanCanadian Petroleum Limited and the Supplemental Pension Plan for Employees of PanCanadian Petroleum Limited (the “PanCanadian Plans”) and, with respect to service after December 31, 2002, with pension and related benefits substantially similar as those enjoyed by her under the EnCana Corporation Canadian Pension Plan and the EnCana Corporation Canadian Supplemental Defined Contribution Savings Plan (the “EnCana Pension Plans”) formerly known as the Retirement Pension Plan for Employees of PanCanadian Petroleum Limited and the Supplemental Pension Plan for Employees of PanCanadian Petroleum Limited, except for across-the-board reductions in, or amendments to, such benefits similarly affecting all senior executives of the Corporation and relating to service or employment after the date on which such reduction or amendment is announced; or

 

  (ii) the failure by the Corporation to continue to provide the Executive with benefits substantially similar to those enjoyed by her under any other retirement arrangement established for the Executive, except for across-the-board reductions in, or amendments to, such benefits similarly affecting all senior executives of the Corporation and relating to service or employment after the date on which such reduction or amendment is announced; or

 

  (iii)

the failure of the Corporation to continue to provide benefits at least substantially similar to any of the Corporation’s life

 

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  insurance, medical, health and accident, disability or savings plans in which the Executive may participate at the date hereof or subsequently or the taking of any action by the Corporation that would directly or indirectly materially reduce any such benefits or deprive the Executive of any material perquisite enjoyed by her, except for across-the-board reductions similarly affecting all senior executives of the Corporation; or

 

  (iv) the failure by the Corporation to provide the Executive with the number of paid vacation days to which the Executive is entitled in accordance with the Corporation’s normal vacation policy in effect as of the date hereof or subsequently;

 

  (f) Deferred Compensation . The failure by the Corporation to pay the Executive any portion of her then current compensation without her consent except pursuant to an across-the-board compensation deferral similarly affecting all senior executives of the Corporation or the failure by the Corporation to pay to the Executive any installment of deferred compensation at the time such installment is due under any deferred compensation program of the Corporation;

 

  (g) No Assumption by Successor . The failure of the Corporation to obtain a satisfactory agreement from a successor to assume and agree to perform this Agreement as contemplated by Section 7.0 hereof, or if the business or undertaking in connection with which the Executive’s services are principally performed is sold at any time after a Change in Control and the Executive’s employment is transferred as a result, the purchaser of such business shall fail to agree to provide the Executive with the same or a comparable position, duties, compensation and benefits, as described in paragraphs (d) and (e) above, as provided to the Executive by the Corporation immediately prior to the Change in Control;

 

  (h) Disposition of “All or Substantially All” . The disposition by the Corporation of all or substantially all of the assets of the Corporation.

 

4.0 Notice of Termination; Date of Termination

 

  4.1 Notice of Termination . Any termination of the Executive’s employment either by the Executive for Good Reason or by the Corporation for Cause or without Cause, as applicable, shall be communicated by written Notice of Termination to the Executive or to the Corporation, as the case may be, in accordance with Section 8.0 hereof.

 

  4.2

Content of Notice of Termination . The “Notice of Termination” shall mean a notice which shall indicate the specific termination provision in this Agreement relied upon by the Executive or the Corporation, as the case may be, and shall set

 

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  forth in reasonable detail the facts and circumstances claimed as the basis for the Executive’s terminating her employment or the Corporation’s terminating the Executive’s employment, as the case may be. The Executive’s failure to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of “Good Reason” shall not result in a waiver of her rights hereunder or preclude her from asserting such fact or circumstance in enforcing her rights hereunder.

 

  4.3 Date of Termination . The “Date of Termination” shall mean if the Executive’s employment is terminated by the Corporation without Cause or by the Executive for Good Reason, the date specified in the Notice of Termination (which, in the case of termination by the Executive for Good Reason, shall be not less than 15 days nor more than 60 days from the date such Notice of Termination is given).

 

  4.4 Notice Required . For the purposes of this Section 4.0, any purported termination of the Executive’s employment which is not effected pursuant to a Notice of Termination satisfying the requirements of Section 4.2 hereof shall not be effective.

 

5.0 Compensation and Benefits following Change in Control

Following both (i) a Change in Control of the Corporation and (ii) the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason in accordance with the terms of this Agreement, the Corporation shall cause to be provided to the Executive the following benefits in full satisfaction of all of the Corporation’s obligations to the Executive:

 

  (a) Accrued Compensation . The Corporation shall pay the Executive her full base salary through the Date of Termination at the rate in effect at the time the Notice of Termination is given.

 

  (b) Severance Payment, Severance Period, Severance Salary Rate and Payment Date . In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination, the Corporation shall pay to the Executive, on account of both compensation in lieu of notice and loss of office, not later than the 30th business day following the Date of Termination (the “Payment Date”), a lump sum severance payment (the “Severance Payment”) equal to the amount of base salary the Executive would have earned had she continued to be employed until the end of the 24th full calendar month following the Date of Termination (the “Severance Period”) assuming that the Executive’s rate of monthly base salary during the Severance Period would be equal to the highest monthly rate of base salary which was payable to her by the Corporation (or any corporation affiliated with the Corporation) during the 24th month period immediately preceding the Date of Termination (the “Severance Salary Rate”).

 

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  (c) Savings Plan . The Corporation shall pay the Executive the maximum contribution that the Corporation would have been required to make to the Executive’s savings plan in respect of the Severance Period if she were fully employed and elected to have the Corporation match her savings contribution determined as if the Executive continued to make contributions to the savings plan at a rate equal to the contributions actually made by her under the savings plan in the last complete calendar year immediately preceding the Date of Termination. This payment will be made in lump sum on the Payment Date.

 

  (d) Annual Incentive Plans . The Corporation shall pay to the Executive, in cash, in a lump sum, no later than the Payment Date, an amount in lieu of her participation in the HPR Plan, or in any other annual incentive compensation plan or program, or any replacement plan in which she is participating as of the Notice of Termination which shall be equal to (i) two times the average of the amounts paid to her under the HPR Plan (excluding for greater certainty any President’s Award) in respect of the three complete fiscal years of the Corporation immediately preceding the Date of Termination, and (ii) (in cases where the Date of Termination is not the end of a fiscal year), a pro rata payment for the number of days which have elapsed in the fiscal year in which the Date of Termination occurs, based on the same calculation described above. For the purposes of this Section 5.0(d), where the Date of Termination is prior to the completion of three complete fiscal years of the Corporation following the implementation of the HPR Plan, the average of amounts paid to the Executive under the HPR Plan shall be determined based on each complete fiscal year of the Corporation immediately preceding the Date of Termination.

 

  (e) Long Term Incentive Plans . Under the Performance Share Unit Plan for Employees of EnCana Corporation (the “PSU Plan”), all performance share units granted to the Executive as at the Date of Termination shall become fully vested and shall be paid in accordance with the terms of the PSU Plan.

 

  (f) Stock Options . All stock options held by the Executive as at the Notice of Termination shall become fully vested and may be exercised for the lesser of their term or 24 months following the Date of Termination.

 

  (g)

Insurance Benefits . The Corporation shall continue to provide the Executive and her dependants with the same level of life, disability, accident, dental and health insurance benefits the Executive and her dependents were receiving or entitled to receive immediately prior to the Date of Termination until the end of the Severance Period; provided, however, that if for any reason such insurance benefit is not provided to the end of the Severance Period, a lump sum payment equal to the present

 

- 8 -


  value of the cost to the Corporation of providing such insurance shall be paid to the Executive. The contributions by the Executive required under such programs shall be payable to the Corporation or to the insurer, as applicable, on the same basis as if the Executive continued to be employed during the Severance Period.

 

  (h) Vacation . The Corporation shall pay the Executive, in cash, in a lump sum, no later than the Payment Date, an amount equal to all accrued but unused vacation determined as of the Date of Termination. The amount of such payment shall be determined based upon the Executive’s Severance Salary Rate. In no event shall the amount of vacation time to which the Executive is entitled be less than the amount to which she would have been entitled under the vacation policy in effect as of the Change in Control.

 

  (i) Career Counselling . At the Executive’s request, the Corporation shall provide the Executive with career counselling services at a maximum cost to the Corporation of $15,000 per annum. Such services shall be provided until the Executive obtains subsequent employment or establishes her own business activity or to the end of the Severance Period, whichever is earliest. The Executive shall be entitled to obtain such services from the recognized professional career counselling firm of her choice in the major Canadian metropolitan area in or nearest to where she resides at the time she begins to use such services. In order to ensure the provision of such services, the Corporation and the Executive shall enter into a contract with the career counselling services firm, pursuant to which such firm shall provide the Executive with the career counselling services required herein.

 

  (j) Annual Allowance . The Corporation shall pay to the Executive no later than the Payment Date an amount equivalent to two times the annual allowance to which she is entitled as of the date of the Notice of Termination.

 

  (k) Financial Counselling . The Corporation shall, during the Severance Period, continue to provide the Executive with the same financial counselling benefits as those to which she was entitled as of the Change in Control. Such services shall be provided throughout the Severance Period, including the preparation of her tax return(s) for herself for the taxation year during which the Severance Period ends. To ensure the provision of such services, the Corporation and the Executive shall, as soon as practicable, enter into a contract with the financial counselling services firm, pursuant to which such firm shall provide the Executive with the financial counselling services required herein.

 

  (l)

Executive Medical . The Corporation shall continue to provide the Executive with the same executive physical examination benefits as those

 

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  to which she was entitled as of the Change in Control. Such benefits shall be provided for the duration of the Severance Period. In order to ensure the provision of such benefits, the Corporation and the Executive shall, as soon as practicable, enter into a contract with a medical services firm, pursuant to which such firm shall provide the Executive with the executive physical examination services required herein.

 

  (m) Professional Membership Fees . The Corporation shall pay the Executive, in cash, in a lump sum, no later than the Payment Date, an after-tax amount equal to the present value of the cost of membership fees for membership in professional organizations related to her position and duties with the Corporation that she would have incurred throughout the Severance Period that would have been payable or reimbursable by the Corporation under the terms of its policy in effect as of the Change in Control had she continued to be employed during the Severance Period, assuming that the annual cost of such fees was equal to the amount reimbursed by the Corporation for the year preceding the year in which a Notice of Termination is delivered.

 

  (n) Pension Benefits . The Corporation shall pay to the Executive the maximum contribution that the Corporation would have been required to make on behalf of the Executive under the EnCana Pension Plans at the percentage of salary specified therein in respect to the Severance Period based on:

 

  (i) The Executive’s annual base salary if she were fully employed until the end of the 24 th calendar month following the Date of Termination; and

 

  (ii) The lesser of the amount specified in 5.0(d) and 40% of the amount of the annual base salary the Executive would have earned had she continued to be employed until the end of the 24 th calendar month following the Date of Termination.

This payment will be made to the Executive in a lump sum on the Payment Date.

 

  (o)

Legal Fees and Expenses . The Corporation shall pay the Executive’s legal or professional fees and expenses incurred by her as a result of her termination (including actual legal fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement) up to $100,000. In addition, the Corporation will pay legal fees and expenses incurred by the Executive as a result of her termination that are in excess of $100,000 (including actual legal fees and expenses, if any, incurred in contesting or

 

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  disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement) if a court or other tribunal finds in favour of the Executive.

 

  (p) Deductions . The Executive agrees that benefits and payments to which she is entitled pursuant to this Contract are subject to deductions required by law.

 

  (q) Calculations . For purposes of determining the present value of an amount, other than for purposes of Section 5.0(n) above, the interest rate to be used shall be the yield for five year constant maturity Canadian government bonds for the current week taken from the most recent weekly Canadian Debt Strategy published by ScotiaMcLeod Inc. or, if for any reason that report is not available at the relevant time, the most recent weekly report published by another recognized Canadian publisher of a report of similar standing chosen by the Corporation. All calculations of amounts payable under this Agreement shall be subject to verification by the Corporation’s independent auditors or actuarial consultants.

 

  (r) No Mitigation . The Executive shall not be required to mitigate the amount of any payment provided for in this Section by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section be reduced by any compensation earned by, or benefits paid to, the Executive as the result of employment, whether by another employer or self-employment, or by pension benefits after the Date of Termination, or otherwise, except as specifically provided in this Section.

 

6.0 Entire Agreement

 

  6.1 This Contract constitutes the entire agreement between the Parties hereto concerning change in control benefits and obligations and supersedes all prior agreements or understandings. There are no representations or warranties, express or implied, or any conditions or collateral or implied agreements which apply to or govern benefits or obligations relating to a change in control of the Corporation between the Parties other than as are expressly set forth or referred to herein. For greater certainty, all change in control agreements or contracts in existence prior to the date hereof are terminated and replaced by this Contract. This Contract cannot be amended except by a written agreement executed by the Parties hereto.

 

7.0 Successors; Binding Agreement

 

  7.1

Assumption by Successors . The Corporation will require any successor corporation (whether direct or indirect, and whether by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Corporation to expressly assume and to agree to perform this Agreement in

 

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  the same manner and to the same extent as the Corporation, as if no such succession had taken place, and to the extent that the Corporation has not already satisfied an obligation hereunder. Failure of the Corporation to obtain such assumption and agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Executive to compensation from the Corporation in the same amount and on the same terms as the Executive would be entitled to if the Executive were to terminate the Executive’s employment for Good Reason following a Change in Control of the Corporation, except that for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, “Corporation” shall mean the Corporation as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.

 

  7.2 Enforceability by Beneficiaries . This Agreement shall enure to the benefit of and be enforceable by the Parties hereto and their respective heirs, legal or personal representatives, successors and assigns and if the Executive should die while any amount would still be payable to her hereunder if she had continued to live, all such amounts shall be paid in accordance with the terms of this Agreement to the Executive’s devisee, legatee or other designee or, if there is no such designee, to her estate.

 

8.0 Notices

 

  8.1 Notices . For the purpose of this Agreement, notices and all other communications provided for in this Agreement shall be in writing, shall be deemed to have been duly given when delivered or sent by facsimile or other form of recorded electronic communication, charges prepaid and confirmed in writing or on the third business day after having been sent by registered mail, postage prepaid, as follows:

If to the Corporation:

EnCana Corporation

EnCana on 8th

1800, 855 – 2 nd Street SW

Calgary, Alberta

T2P 4Z5

 

Attention:    Vice-President, General Counsel and Corporate Secretary
Facsimile:    (403) 645-4617

 

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If to the Executive:

Sherri A. Brillon

EnCana Corporation

EnCana on 8 th

1800, 822 – 2 nd Street SW

Calgary, Alberta

T2P 4Z5

Fax: (403) 517-7973

Each of the Corporation and the Executive may from time to time change its address for notice by notice to the other Party given in the manner aforesaid.

 

9.0 Miscellaneous

 

  9.1 Amendment and Waiver . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing. No waiver by either Party hereto of, or in compliance with, any condition or provision of this Agreement to be performed by such other Party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.

 

  9.2 Governing Law . This Agreement shall be construed and enforced in accordance with, and the rights of the Parties shall be governed by, the laws of the Province of Alberta.

 

  9.3 Currency . All amounts in this Agreement are stated in and shall be paid in Canadian currency.

 

10.0 Validity

 

  10.1 The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

 

11.0 Counterparts

 

  11.1 This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same Agreement.

 

12.0 Headings

 

  12.1 The division of this Agreement into sections, subsections and clauses, or other portions hereof and the insertion of headings or subheadings, are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.

 

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13.0 Time of the Essence

 

  13.1 Time shall be of the essence in this Agreement.

IN WITNESS WHEREOF , the Parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

ENCANA CORPORATION
Per:    /s/ Michael A. Grandin
  

 

   Michael A. Grandin
Per:    /s/ Randall K. Eresman
  

 

   Randall K. Eresman
 

 

/s/ Howard J. Walls     /s/ Sherri A. Brillon

 

   

 

Witness     Sherri A. Brillon

 

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Exhibit 10.19

CHANGE IN CONTROL AGREEMENT

THIS AGREEMENT made effective the 30th day of November 2009

BETWEEN

ENCANA CORPORATION , a body corporate registered in the Province of Alberta, (the “Corporation”)

OF THE FIRST PART

-and-

RENEE E. ZEMLJAK of the City of Lone Tree in the State of Colorado (the “Executive”)

OF THE SECOND PART

WHEREAS the Board of Directors of the Corporation (the “Board”) recognizes that the establishment and maintenance of a sound and vital management team is essential to the protection and enhancement of the best interests of the Corporation and its shareholders;

AND WHEREAS the Board further recognizes that an employee is most vulnerable at the point of termination from employment;

AND WHEREAS the Board further recognizes that, as is the case with many corporations, the possibility of a Change in Control of the Corporation could arise and create a climate of uncertainty among the Corporation’s senior executives, and could result in the resignation or distraction of such senior executives to the detriment of the Corporation and its shareholders;

AND WHEREAS, the Board believes it is important, should the Corporation or its shareholders receive a proposal for transfer of control of the Corporation, that the Executive be able to assess and advise the Board whether such proposal would be in the best interests of the Corporation and its shareholders and to take such other action regarding such proposal as the Board might determine to be appropriate, without being influenced by the uncertainties of her own situation;

AND WHEREAS, in order to induce the Executive to remain in the employ of the Corporation and to assure the Corporation of her continued and undivided attention and services, notwithstanding any events which might result in a Change in Control of the Corporation, this Agreement, which has been approved by the Board, records certain benefits extended to the Executive.

NOW THEREFORE, in consideration of the covenants and agreements hereinafter set forth and for other good and valuable consideration (the receipt and sufficiency whereof are hereby acknowledged by each of the Parties), the Parties hereby mutually covenant and agree as follows:


1.0 Term of Agreement

 

  1.1 Term . This Agreement shall commence on the date hereof and shall continue in effect through December 31, 2009; provided, however, that commencing on January 1, 2010 and each January 1 thereafter, the term of this Agreement shall automatically be extended for one additional year until such time as there shall occur a Change in Control of the Corporation and for a period of three years from the Effective Date of such Change in Control (the “Term”); provided, however, that if payment of compensation and benefits has begun under this Agreement, the payment of such compensation and benefits shall continue beyond the end of the Term in accordance with the applicable provisions of this Agreement.

 

2.0 Change in Control

 

  2.1 Compensation and Benefits not until. The Parties acknowledge and agree that no compensation or benefits shall be payable hereunder unless and until there shall have occurred both (i) a Change in Control of the Corporation and (ii) the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason in accordance with the terms of this Agreement.

 

  2.2 “Change in Control”. For purposes of this Agreement, a “Change in Control” of the Corporation shall be deemed to have occurred if:

 

  (a) any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity, or any persons acting jointly or in concert with the foregoing, is or becomes the beneficial owner directly or indirectly of, securities of the Corporation representing more than 30% of the combined voting power of the Corporation’s then outstanding securities entitled to vote in the election of the directors of the Corporation (the “Voting Shares”);

 

  (b) the Corporation shall have disposed of (i) all or substantially all of its assets, such that shareholder approval was required or should have been required to be obtained under the Canada Business Corporations Act , or (ii) assets in any 12 month period representing 50% or more of the total assets of the Corporation, determined as of the date of the audited financial statements of the Corporation then most recently published;

 

  (c) pursuant to a single election or appointment or a series of elections or appointments over any period from and after the date of this Agreement (i) those individuals who at the date of the Agreement constituted the Board, together with (ii) any new or additional director or directors whose nomination for election by the Corporation’s shareholders, or whose appointment to the Board by the Board, has been approved by at least 75% of the votes cast by all of the directors then still in office, who either were directors at the date of this Agreement or whose appointment or nomination for election was previously so approved, cease for any reason to constitute a majority of the Board; or

 

- 2 -


  (d) the Board, by resolution duly adopted by the affirmative vote of a simple majority of the votes cast by the Board, determines that for purposes of this Agreement, a Change in Control of the Corporation has occurred.

 

  2.3 Employee Benefit Plans, etc. Securities beneficially owned or controlled or directed by an employee plan or related trust sponsored or maintained by the Corporation or its subsidiaries shall not be taken into account in determining whether the threshold percentage in Section 2.2(a) is exceeded.

 

  2.4 When Compensation and Benefits Payable . Upon the occurrence of both (i) a Change in Control of the Corporation and (ii) the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason as contemplated by the terms of this Agreement, the provisions of Section 5.0 hereof in respect of the compensation and benefits payable, as applicable, shall apply.

 

  2.5 Definitions and Interpretation . For purposes of this Section 2.0:

 

  (a) the term “acting jointly or in concert” shall be interpreted in accordance with Section 159 of the Securities Act (Alberta), as amended; and

 

  (b) the term “beneficial ownership” shall be interpreted in accordance with Sections 5 and 6 of the Securities Act (Alberta) and “beneficial owner” shall have a corresponding meaning, except that for purposes of this Agreement, options and convertible securities granted by the Corporation to employees, officers or directors shall not be included in determining beneficial ownership or beneficial owner.

 

3.0 Definitions

For purposes of this Agreement and for purposes of determining such compensation and benefits as may be payable hereunder following the occurrence of a Change in Control of the Corporation, the following definitions shall apply:

 

  3.1 Cause ”. “Cause” means:

 

  (a) the wilful and continued failure by the Executive to substantially perform her duties with the Corporation or its subsidiaries after a written demand for substantial performance is delivered to the Executive by the Board, which demand specifically identifies the manner in which the Board believes that the Executive has not substantially performed her duties, and the Executive fails to correct such failure to perform her duties within 30 days after such written demand is delivered to him; provided, however, that if such failure occurs after the happening of circumstances which would entitle the Executive to terminate for Good Reason, the same shall not constitute the basis for “Cause”; or

 

  (b)

the wilful engaging by the Executive in conduct which is dishonest or demonstrably and materially injurious to the Corporation or its

 

- 3 -


  subsidiaries, monetarily or otherwise. For purposes of this definition, any action by the Executive or any failure on her part to act, shall be deemed “wilful” when done (or omitted to be done) by the Executive not in good faith and if when done (or omitted to be done) the Executive had or ought to have had the reasonable belief that her action or omission would not be in the best interests of the Corporation.

Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the Board, finding that in the good faith opinion of the Board, the Executive was guilty of conduct set forth in clause (a) or (b) of this Section and specifying the particulars thereof in detail.

 

  3.2 Effective Date ”. “Effective Date” means the date of the occurrence of the specified event constituting a Change in Control of the Corporation.

 

  3.3 Good Reason ”. “Good Reason” means any of the following, unless the Executive shall have given her express written consent thereto:

 

  (a) Changed Duties or Status . The assignment to the Executive of any duties inconsistent with her status as a senior executive of the Corporation or a material alteration in the nature or status of her responsibilities or duties or reporting relationship from those in effect immediately prior to a Change in Control of the Corporation;

 

  (b) Reduced Salary . A reduction by the Corporation in the Executive’s annual base salary as in effect on the date hereof or as the same may be increased from time to time except for across-the-board salary reductions similarly affecting all senior executives of the Corporation;

 

  (c) Relocation . The Corporation’s requiring the Executive to be based anywhere other than where the Executive is based at the time of a Change in Control of the Corporation, except for required travel on the Corporation’s business to an extent substantially consistent with the Executive’s business travel obligations in the ordinary course of business immediately prior to the Change in Control of the Corporation;

 

  (d) Incentive Compensation Plans . Changes to the terms of the Corporation’s High Performance Results Plan (the “HPR Plan”) or any replacement plan in which the Executive is participating as of the Change in Control (the “Annual Incentive Plans”), the stock option plan, the PSU Plan (as defined in Section 5.0(e) hereof) and the SAR Plan (as defined in Section 5.0(f) hereof) of the Corporation or to such other long-term incentive plans as the Executive may be participating in, which would have the effect of materially reducing the Executive’s aggregate potential incentive compensation, except in circumstances where the Corporation alters or reduces the benefits available under such plans for all senior executives of the Corporation;

 

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  (e) MPP Plan, Benefit Plans and Perquisites . The failure by the Corporation to continue to provide the Executive:

 

  (i) with pension and related benefits substantially similar as those enjoyed by him under the EnCana International (USA) Inc. Money Purchase Plan (the “EnCana USA MPP”), except for across-the-board reductions in, or amendments to, such benefits or comparable benefits similarly affecting all senior executives of the Corporation and relating to service or employment after the date on which such reduction or amendment is announced; or

 

  (ii) with benefits substantially similar to those enjoyed by him under any other retirement arrangement established for the Executive, except for across-the-board reductions in, or amendments to, such benefits or comparable benefits similarly affecting all senior executives of the Corporation and relating to service or employment after the date on which such reduction or amendment is announced; or

 

  (iii) with benefits at least substantially similar to any of the life insurance, medical, health and accident, disability or investment plans in which the Executive may participate at the date hereof or subsequently or the taking of any action by the Corporation that would directly or indirectly materially reduce any such benefits or deprive the Executive of any material perquisite enjoyed by him, except for across-the-board reductions in such benefits or comparable benefits similarly affecting all senior executives of the Corporation; or

 

  (iv) the failure by the Corporation to provide the Executive with the number of paid vacation days to which the Executive is entitled in accordance with the normal vacation policy in effect in respect of the Executive as of the date hereof or subsequently;

 

  (f) Deferred Compensation . The failure by the Corporation to pay the Executive any portion of her then current compensation without her consent except pursuant to an across-the-board compensation deferral similarly affecting all senior executives of the Corporation or the failure by the Corporation to pay to the Executive any installment of deferred compensation at the time such installment is due under any deferred compensation program of the Corporation or a subsidiary thereof ;

 

  (g)

No Assumption by Successor . The failure of the Corporation to obtain a satisfactory agreement from a successor to assume and agree to perform this Agreement as contemplated by Section 7.0 hereof, or if the business or undertaking in connection with which the Executive’s services are principally performed is sold at any time after a Change in Control and the Executive’s employment is transferred as a result, the purchaser of such business shall fail to agree to provide the Executive with the same or

 

- 5 -


  a comparable position, duties, compensation and benefits, as described in paragraphs (d) and (e) above, as provided to the Executive by the Corporation immediately prior to the Change in Control;

 

  (h) Disposition of “All or Substantially All” . The disposition by the Corporation of all or substantially all of the assets of the Corporation.

 

4.0 Notice of Termination; Date of Termination

 

  4.1 Notice of Termination . Any termination of the Executive’s employment either by the Executive for Good Reason or by the Corporation for Cause or without Cause, as applicable, shall be communicated by written Notice of Termination to the Executive or to the Corporation, as the case may be, in accordance with Section 8.0 hereof.

 

  4.2 Content of Notice of Termination . The “Notice of Termination” shall mean a notice which shall indicate the specific termination provision in this Agreement relied upon by the Executive or the Corporation, as the case may be, and shall set forth in reasonable detail the facts and circumstances claimed as the basis for the Executive’s terminating her employment or the Corporation’s terminating the Executive’s employment, as the case may be. The Executive’s failure to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of “Good Reason” shall not result in a waiver of her rights hereunder or preclude him from asserting such fact or circumstance in enforcing her rights hereunder.

 

  4.3 Date of Termination . The “Date of Termination” shall mean if the Executive’s employment is terminated by the Corporation without Cause or by the Executive for Good Reason, the date specified in the Notice of Termination (which, in the case of termination by the Executive for Good Reason, shall be not less than 15 days nor more than 60 days from the date such Notice of Termination is given).

 

  4.4 Notice Required . For the purposes of this Section 4.0, any purported termination of the Executive’s employment which is not effected pursuant to a Notice of Termination satisfying the requirements of Section 4.2 hereof shall not be effective.

 

5.0 Compensation and Benefits following Change in Control

Following both (i) a Change in Control of the Corporation and (ii) the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason in accordance with the terms of this Agreement, the Corporation shall cause to be provided to the Executive the following benefits in full satisfaction of all of the Corporation’s obligations to the Executive:

 

  (a)

Accrued Compensation and Payment Date . The Corporation shall pay the Executive, in a lump sum, not later than the 30th business day following the Date of Termination (the “Payment Date”), her full base salary

 

- 6 -


  through the Date of Termination at the rate in effect at the time the Notice of Termination is given.

 

  (b) Severance Payment, Severance Period and Severance Salary Rate . In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination, the Corporation shall pay to the Executive, on account of both compensation in lieu of notice and loss of office, not later than the Payment Date, a lump sum severance payment (the “Severance Payment”) equal to the amount of base salary the Executive would have earned had she continued to be employed until the end of the 24th full calendar month following the Date of Termination (the “Severance Period”) assuming that the Executive’s rate of monthly base salary during the Severance Period would be equal to the highest monthly rate of base salary which was payable to him by the Corporation (or any subsidiary thereof or corporation affiliated with the Corporation) during the 24th month period immediately preceding the Date of Termination (the “Severance Salary Rate”).

 

  (c) EnCana USA 401(k) Plan . The Corporation shall pay the Executive the maximum contribution that the Corporation or a subsidiary thereof would have been required to make on behalf of the Executive to the EnCana International (USA) Inc. 401(k) Plan (the “EnCana USA 401(k) Plan”) in respect of the Severance Period if she were fully employed and elected to have the Corporation or a subsidiary thereof match her contribution determined as if the Executive continued to make contributions to the EnCana USA 401(k) Plan at a rate equal to the contributions actually made by him under the EnCana USA 401(k) in the last complete calendar year immediately preceding the Date of Termination. This payment will be made in cash, in a lump sum, no later than the Payment Date.

 

  (d) Annual Incentive Plans . The Corporation shall pay to the Executive, in cash, in a lump sum, no later than the Payment Date, an amount in lieu of her participation in the HPR Plan, or in any other annual incentive compensation plan or program, or any replacement plan in which she is participating as of the Notice of Termination which shall be equal to (i) two times the average of the amounts paid to him under the HPR Plan (excluding for greater certainty any President’s Award) in respect of the three complete fiscal years of the Corporation immediately preceding the Date of Termination, and (ii) (in cases where the Date of Termination is not the end of a fiscal year), a pro rata payment for the number of days which have elapsed in the fiscal year in which the Date of Termination occurs, based on the same calculation described above. For the purposes of this Section 5.0(d), where the Date of Termination is prior to the completion of three complete fiscal years of the Corporation following the implementation of the HPR Plan, the average of amounts paid to the Executive under the HPR Plan shall be determined based on each complete fiscal year of the Corporation immediately preceding the Date of Termination.

 

- 7 -


  (e) Performance Share Unit Plan . In respect of the Executive’s entitlements under the Performance Share Unit Plan for Employees of EnCana Corporation (the “PSU Plan”), performance share units (“PSUs”) granted to the Executive as at the effective date of such Change in Control (as that term is defined under the PSU Plan) shall become vested and paid as applicable and in accordance with the terms of the PSU Plan.

 

  (f) Stock Options and Stock Appreciation Rights (“SARs”) . All stock options and SARs held by the Executive as at the Notice of Termination shall become vested as follows:

 

  (i) all stock options granted prior to February 2007 shall become immediately vested;

 

  (ii) All Time-Based Options, Time-Based SARs, Performance Options and Performance SARs (as those terms are defined in the applicable and respective stock option grant agreements or the Employee Stock Appreciation Rights Plan (the “ESAR Plan”) as applicable) granted in or after February 2007 shall become immediately vested; and

 

  (iii) Bonus Options and Bonus SARs (as those terms are defined in the applicable grant agreements or the ESAR Plan) granted in or after February 2007 shall continue to vest pursuant to the terms of the applicable grant agreement or the ESAR Plan, as applicable, during the lesser of the period of vesting in such agreement or ESAR Plan and 24 months following the Date of Termination.

All vested stock options and SARs may be exercised for the lesser of their term or 24 months following the Date of Termination.

 

  (h)

Insurance Benefits . The Corporation shall continue to provide the Executive and her dependants with the same level of life, disability, accident, dental and health insurance benefits the Executive and her dependents were receiving or entitled to receive immediately prior to the Date of Termination until the end of the Severance Period. The contributions by the Executive required under such programs shall be payable to the Corporation or to the insurer, as applicable, on the same basis as if the Executive continued to be employed during the Severance Period. To the extent any of the foregoing benefits are provided pursuant to a self-insured medical reimbursement plan, the Executive will be permitted to continue to be entitled to such benefits only if the Executive pays, in addition to the required Executive contributions referenced above, the portion of the monthly premiums normally paid by the Corporation or a subsidiary thereof with respect to any such benefits. As a separate payment under this Agreement, for each month the Executive pays such premiums normally paid by the Corporation or a subsidiary thereof with respect to any such benefits, the Corporation shall pay to the Executive a monthly reimbursement payment so that, after withholding of all

 

- 8 -


  applicable taxes on such reimbursement payment, the Executive retains an amount equal to the monthly premiums normally paid by the Corporation or a subsidiary thereof with respect to such benefits.

 

  (i) Vacation . The Corporation shall pay the Executive, in cash, in a lump sum, no later than the Payment Date, an amount equal to all accrued but unused vacation determined as of the Date of Termination. The amount of such payment shall be determined based upon the Executive’s Severance Salary Rate. In no event shall the amount of vacation time to which the Executive is entitled be less than the amount to which she would have been entitled under the vacation policy in effect as of the Change in Control.

 

  (j) Career Counselling . At the Executive’s request, the Corporation shall provide the Executive with career counselling services at a maximum cost to the Corporation of $15,000 per annum. Such services shall be provided until the Executive obtains subsequent employment or establishes her own business activity or to the end of the Severance Period, whichever is earliest. The Executive shall be entitled to obtain such services from the recognized professional career counselling firm of her choice in the major Canadian metropolitan area in or nearest to where she resides at the time she begins to use such services. In order to ensure the provision of such services, the Corporation and the Executive shall enter into a contract with the career counselling services firm, pursuant to which such firm shall provide the Executive with the career counselling services required herein.

 

  (k) Annual Allowance . The Corporation shall pay to the Executive no later than the Payment Date an amount equivalent to two times the annual allowance to which she is entitled as of the date of the Notice of Termination.

 

  (l) Financial Counselling . The Corporation shall, during the Severance Period, continue to provide the Executive with the same financial counselling benefits as those to which she was entitled as of the Change in Control. Such services shall be provided throughout the Severance Period, including the preparation of her tax return(s) for herself for the taxation year during which the Severance Period ends. To ensure the provision of such services, the Corporation and the Executive shall, as soon as practicable, enter into a contract with the financial counselling services firm, pursuant to which such firm shall provide the Executive with the financial counselling services required herein.

 

  (m)

Executive Medical . The Corporation shall continue to provide the Executive with the same executive physical examination benefits as those to which she was entitled as of the Change in Control. Such benefits shall be provided for the duration of the Severance Period. In order to ensure the provision of such benefits, the Corporation and the Executive shall, as soon as practicable, enter into a contract with a medical services firm,

 

- 9 -


  pursuant to which such firm shall provide the Executive with the executive physical examination services required herein.

 

  (n) Professional Membership Fees . The Corporation shall pay the Executive, in cash, in a lump sum, no later than the Payment Date, an after-tax amount equal to the present value of the cost of membership fees for membership in professional organizations related to her position and duties with the Corporation that she would have incurred throughout the Severance Period that would have been payable or reimbursable by the Corporation under the terms of its policy in effect as of the Change in Control had she continued to be employed during the Severance Period, assuming that the annual cost of such fees was equal to the amount reimbursed by the Corporation for the year preceding the year in which a Notice of Termination is delivered.

 

  (o) Pension Benefits . The Corporation shall pay to the Executive the maximum contribution that the Corporation or a subsidiary thereof would have been required to make on behalf of the Executive under the EnCana USA MPP at the percentage of salary specified therein in respect to the Severance Period based on:

 

  (i) The Executive’s annual base salary if she were fully employed until the end of the 24 th calendar month following the Date of Termination; and

 

  (ii) The lesser of the amount specified in 5.0(d) and 40% of the amount of the annual base salary the Executive would have earned had she continued to be employed until the end of the 24 th calendar month following the Date of Termination.

This payment will be made to the Executive in a lump sum on the Payment Date.

 

  (p) Legal Fees and Expenses . The Corporation shall pay the Executive’s legal or professional fees and expenses incurred by him as a result of her termination (including actual legal fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement) up to $100,000. In addition, the Corporation will pay legal fees and expenses incurred by the Executive as a result of her termination that are in excess of $100,000 (including actual legal fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement) if a court or other tribunal finds in favour of the Executive.

 

  (q)

Deductions . The Executive agrees that benefits and payments to which she is entitled pursuant to this Agreement are subject to deductions required

 

- 10 -


  by law including, without limitation, all applicable federal, state and local withholding taxes.

 

  (r) Calculations . For purposes of determining the present value of an amount, other than for purposes of Section 5.0(n) above, the interest rate to be used shall be the yield for five year constant maturity Canadian government bonds for the current week taken from the most recent weekly Canadian Debt Strategy published by ScotiaMcLeod Inc. or, if for any reason that report is not available at the relevant time, the most recent weekly report published by another recognized Canadian publisher of a report of similar standing chosen by the Corporation. All calculations of amounts payable under this Agreement shall be subject to verification by the Corporation’s independent auditors or actuarial consultants.

 

  (s) No Mitigation . The Executive shall not be required to mitigate the amount of any payment provided for in this Section by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section be reduced by any compensation earned by, or benefits paid to, the Executive as the result of employment, whether by another employer or self-employment, or by pension benefits after the Date of Termination, or otherwise, except as specifically provided in this Section.

 

6.0 Entire Agreement

 

  6.1 This Agreement constitutes the entire agreement between the Parties hereto concerning change in control benefits and obligations and supersedes all prior agreements or understandings. There are no representations or warranties, express or implied, or any conditions or collateral or implied agreements which apply to or govern benefits or obligations relating to a change in control of the Corporation between the Parties other than as are expressly set forth or referred to herein. For greater certainty, all change in control agreements or contracts in existence prior to the date hereof are terminated and replaced by this Agreement. This Agreement cannot be amended except by a written agreement executed by the Parties hereto.

 

7.0 Successors; Binding Agreement

 

  7.1 Assumption by Successors . The Corporation will require any successor corporation (whether direct or indirect, and whether by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Corporation to expressly assume and to agree to perform this Agreement in the same manner and to the same extent as the Corporation, as if no such succession had taken place, and to the extent that the Corporation has not already satisfied an obligation hereunder. As used in this Agreement, “Corporation” shall mean the Corporation as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.

 

- 11 -


  7.2 Enforceability by Beneficiaries . This Agreement shall enure to the benefit of and be enforceable by the Parties hereto and their respective heirs, legal or personal representatives, successors and assigns and if the Executive should die while any amount would still be payable to him hereunder if she had continued to live, all such amounts shall be paid in accordance with the terms of this Agreement to the Executive’s devisee, legatee or other designee or, if there is no such designee, to her estate.

 

8.0 Notices

 

  8.1 Notices . For the purpose of this Agreement, notices and all other communications provided for in this Agreement shall be in writing, shall be deemed to have been duly given when delivered or sent by facsimile or other form of recorded electronic communication, charges prepaid and confirmed in writing or on the third business day after having been sent by registered mail, postage prepaid, as follows:

If to the Corporation:

EnCana Corporation

EnCana on 8th

1800, 855 – 2 nd Street SW

Calgary, Alberta

T2P 4Z5

Attention:  Vice-President, General Counsel

Facsimile:    (403) 645-4617

If to the Executive:

Renee E. Zemljak

EnCana Oil & Gas (USA) Inc.

Republic Plaza

370 17 th Street

Suite 1700

Denver CO 80202

Fax: (720) 876-6008

Each of the Corporation and the Executive may from time to time change its address for notice by notice to the other Party given in the manner aforesaid.

 

9.0 409A Compliance

 

  9.1

This Agreement and any payment, distribution or other benefit hereunder shall comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), or an exemption or exclusion therefrom, as well as any related regulations or other guidance promulgated by the U.S. Department of the Treasury or the Internal Revenue Service (“Section 409A”), to the extent

 

- 12 -


  applicable, and shall in all respects be administered in accordance with Section 409A; provided, that for the avoidance of doubt, this provision shall not be construed to require a gross-up payment in respect of any taxes, interest or penalties imposed on Executive as a result of Section 409A.

 

  9.2 For purposes of this Agreement, Executive shall not be deemed to have terminated employment unless and until a separation from service (within the meaning of Treasury Regulation Section 1.409A-1(h)) has occurred. If Executive is a “specified employee” under Section 409A, no payment, distribution or other benefit provided pursuant to this Agreement constituting a deferral of compensation (within the meaning of Treasury Regulation Section 1.409A-1(b)) that is required to be delayed to comply with Code Section 409A(a)(2)(B)(i) shall be provided before the date that is six months after the date of such separation from service (or, if earlier than the end of such six-month period, the date of death of the specified employee). Any payment, distribution or other benefit that is delayed pursuant to the prior sentence shall be paid on the first business day following the six-month anniversary of the separation from service.

 

  9.3 In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement. Any provision that would cause this Agreement or a payment, distribution or other benefit hereunder to fail to satisfy the requirements of Section 409A shall have no force or effect and, to the extent an amendment would be effective for purposes of Section 409A, the parties agree that this Agreement shall be amended to comply with Section 409A. Such amendment shall be retroactive to the extent permitted by Section 409A. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.

 

  9.4

All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement shall be for expenses incurred during the time period specified in this Agreement, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made not later than the last day of Executive’s taxable year following the taxable year in which such expense was incurred, and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. Notwithstanding anything in this Agreement to the contrary, with respect to payment of legal fees and expenses pursuant to Section 5(p) hereof, if the court or other tribunal has not yet found in favour or against the Executive prior to the last day of Executive’s taxable year following the taxable year in which such fees and expenses were incurred, such fees and expenses will be paid on the last day of such taxable year following the taxable year in which such fees and expenses were incurred. If such court or other tribunal does not ultimately find in favour of the Executive, the Executive will repay to the Corporation as soon as practicable, but in no event more than 90 days after the court or other tribunal renders its ruling, any amounts paid or reimbursed pursuant

 

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  to the prior sentence that would not have been paid or reimbursed pursuant to Section 5(p) but for the prior sentence.

 

10.0 Miscellaneous

 

  10.1 Amendment and Waiver . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing. No waiver by either Party hereto of, or in compliance with, any condition or provision of this Agreement to be performed by such other Party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.

 

  10.2 Governing Law . This Agreement shall be construed and enforced in accordance with, and the rights of the Parties shall be governed by, the laws of the Province of Alberta.

 

  10.3 Currency . All amounts in this Agreement are stated in and shall be paid in the currency in which the Executive is paid as at the Notice of Termination.

 

11.0 Validity

 

  11.1 The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

 

12.0 Counterparts

 

  12.1 This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same Agreement.

 

13.0 Headings

 

  13.1 The division of this Agreement into sections, subsections and clauses, or other portions hereof and the insertion of headings or subheadings, are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.

 

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14.0 Time of the Essence

 

  14.1 Time shall be of the essence in this Agreement.

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

    ENCANA CORPORATION
    Per:   /s/ Barry W. Harrison
     

 

      Barry W. Harrison
    Per:   /s/ Randall K. Eresman
     

 

      Randall K. Eresman
/s/ E Andrusiak     /s/ Renee E. Zemljak

 

   

 

Witness     Renee E. Zemljak

 

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Exhibit 10.20

CHANGE IN CONTROL AGREEMENT

THIS AGREEMENT made effective as of the 10th day of February 2011

BETWEEN

ENCANA CORPORATION, a body corporate registered in the Province of Alberta, (the “Corporation”)

OF THE FIRST PART

-and-

MICHAEL G. MCALLISTER, of the City of Calgary in the Province of Alberta (the “Executive”)

OF THE SECOND PART

WHEREAS the Board of Directors of the Corporation (the “Board”) recognizes that the establishment and maintenance of a sound and vital management team is essential to the protection and enhancement of the best interests of the Corporation and its shareholders;

AND WHEREAS the Board further recognizes that an employee is most vulnerable at the point of termination from employment;

AND WHEREAS the Board further recognizes that, as is the case with many corporations, the possibility of a Change in Control of the Corporation could arise and create a climate of uncertainty among the Corporation’s senior executives, and could result in the resignation or distraction of such senior executives to the detriment of the Corporation and its shareholders;

AND WHEREAS, the Board believes it is important, should the Corporation or its shareholders receive a proposal for transfer of control of the Corporation, that the Executive be able to assess and advise the Board whether such proposal would be in the best interests of the Corporation and its shareholders and to take such other action regarding such proposal as the Board might determine to be appropriate, without being influenced by the uncertainties of his own situation;

AND WHEREAS, in order to induce the Executive to remain in the employ of the Corporation and to assure the Corporation of his continued and undivided attention and services, notwithstanding any events which might result in a Change in Control of the Corporation, this Agreement, which has been approved by the Board, records certain benefits extended to the Executive.

NOW THEREFORE, in consideration of the covenants and agreements hereinafter set forth and for other good and valuable consideration (the receipt and sufficiency whereof are hereby


acknowledged by each of the Parties), the Parties hereby mutually covenant and agree as follows:

 

1.0 Term of Agreement

 

  1.1 Term . This Agreement shall commence on the date hereof and shall continue in effect through December 31, 2011; provided, however, that commencing on January 1, 2012 and each January 1 thereafter, the term of this Agreement shall automatically be extended for one additional year until such time as there shall occur a Change in Control of the Corporation and for a period of three years from the Effective Date of such Change in Control (the “Term”); provided, however, that if payment of compensation and benefits has begun under this Agreement, the payment of such compensation and benefits shall continue beyond the end of the Term in accordance with the applicable provisions of this Agreement.

 

2.0 Change in Control

 

  2.1 Compensation and Benefits not until. The Parties acknowledge and agree that no compensation or benefits shall be payable hereunder unless and until there shall have occurred both (i) a Change in Control of the Corporation and (ii) the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason in accordance with the terms of this Agreement.

 

  2.2 “Change in Control”. For purposes of this Agreement, a “Change in Control” of the Corporation shall be deemed to have occurred if:

 

  (a) any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity, or any persons acting jointly or in concert with the foregoing, is or becomes the beneficial owner directly or indirectly of, securities of the Corporation representing more than 30% of the combined voting power of the Corporation’s then outstanding securities entitled to vote in the election of the directors of the Corporation (the “Voting Shares”);

 

  (b) the Corporation shall have disposed of (i) all or substantially all of its assets, such that shareholder approval was required or should have been required to be obtained under the Canada Business Corporations Act , or (ii) assets in any 12 month period representing 50% or more of the total assets of the Corporation, determined as of the date of the audited financial statements of the Corporation then most recently published;

 

  (c)

pursuant to a single election or appointment or a series of elections or appointments over any period from and after the date of this Agreement (i) those individuals who at the date of the Agreement constituted the Board, together with (ii) any new or additional director or directors whose nomination for election by the Corporation’s shareholders, or whose appointment to the Board by the Board, has been approved by at least 75%

 

-2-


  of the votes cast by all of the directors then still in office, who either were directors at the date of this Agreement or whose appointment or nomination for election was previously so approved, cease for any reason to constitute a majority of the Board; or

 

  (d) the Board, by resolution duly adopted by the affirmative vote of a simple majority of the votes cast by the Board, determines that for purposes of this Agreement, a Change in Control of the Corporation has occurred.

 

  2.3 Employee Benefit Plans, etc. Securities beneficially owned or controlled or directed by an employee plan or related trust sponsored or maintained by the Corporation or its subsidiaries shall not be taken into account in determining whether the threshold percentage in Section 2.2(a) is exceeded.

 

  2.4 When Compensation and Benefits Payable . Upon the occurrence of both (i) a Change in Control of the Corporation and (ii) the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason as contemplated by the terms of this Agreement, the provisions of Section 5.0 hereof in respect of the compensation and benefits payable, as applicable, shall apply.

 

  2.5 Definitions and Interpretation . For purposes of this Section 2.0:

 

  (a) the term “acting jointly or in concert” shall be interpreted in accordance with Section 159 of the Securities Act (Alberta), as amended; and

 

  (b) the term “beneficial ownership” shall be interpreted in accordance with Sections 5 and 6 of the Securities Act (Alberta) and “beneficial owner” shall have a corresponding meaning, except that for purposes of this Agreement, options and convertible securities granted by the Corporation to employees, officers or directors shall not be included in determining beneficial ownership or beneficial owner.

 

3.0 Definitions

For purposes of this Agreement and for purposes of determining such compensation and benefits as may be payable hereunder following the occurrence of a Change in Control of the Corporation, the following definitions shall apply:

 

  3.1 Cause ”. “Cause” means:

 

  (a)

the wilful and continued failure by the Executive to substantially perform his duties with the Corporation after a written demand for substantial performance is delivered to the Executive by the Board, which demand specifically identifies the manner in which the Board believes that the Executive has not substantially performed his duties, and the Executive fails to correct such failure to perform his duties within 30 days after such written demand is delivered to him; provided, however, that if such failure

 

-3-


  occurs after the happening of circumstances which would entitle the Executive to terminate for Good Reason, the same shall not constitute the basis for “Cause”; or

 

  (b) the wilful engaging by the Executive in conduct which is dishonest or demonstrably and materially injurious to the Corporation, monetarily or otherwise. For purposes of this definition, any action by the Executive or any failure on his part to act, shall be deemed “wilful” when done (or omitted to be done) by the Executive not in good faith and if when done (or omitted to be done) the Executive had or ought to have had the reasonable belief that his action or omission would not be in the best interests of the Corporation.

Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the Board, finding that in the good faith opinion of the Board, the Executive was guilty of conduct set forth in clause (a) or (b) of this Section and specifying the particulars thereof in detail.

 

  3.2 Effective Date ”. “Effective Date” means the date of the occurrence of the specified event constituting a Change in Control of the Corporation.

 

  3.3 Good Reason ”. “Good Reason” means any of the following, unless the Executive shall have given his express written consent thereto:

 

  (a) Changed Duties or Status . The assignment to the Executive of any duties inconsistent with his status as a senior executive of the Corporation or a material alteration in the nature or status of his responsibilities or duties or reporting relationship from those in effect immediately prior to a Change in Control of the Corporation;

 

  (b) Reduced Salary . A reduction by the Corporation in the Executive’s annual base salary as in effect on the date hereof or as the same may be increased from time to time except for across-the-board salary reductions similarly affecting all senior executives of the Corporation;

 

  (c) Relocation . The Corporation’s requiring the Executive to be based anywhere other than where the Executive is based at the time of a Change in Control of the Corporation, except for required travel on the Corporation’s business to an extent substantially consistent with the Executive’s business travel obligations in the ordinary course of business immediately prior to the Change in Control of the Corporation;

 

  (d)

Incentive Compensation Plans . Changes to the terms of the Corporation’s High Performance Results Plan (the “HPR Plan”) or any replacement plan in which the Executive is participating as of the Change in Control (the “Annual Incentive Plans”), the stock option plan of the Corporation, the PSU Plan or the RSU Plan (as defined in Sections 5.0 (e) and (f) hereof) or

 

-4-


  to such other long-term incentive plans as the Executive may be participating in, which would have the effect of materially reducing the Executive’s aggregate potential incentive compensation, except in circumstances where the Corporation alters or reduces the benefits available under such plans for all senior executives of the Corporation,

 

  (e) Pension Plan, Benefit Plans and Perquisites . The failure by the Corporation to continue to provide the Executive:

 

  (i) with pension and related benefits substantially similar as those enjoyed by him under the Encana Corporation Canadian Pension Plan and the Encana Corporation Canadian Supplemental Plan (the “Encana Pension Plans”), except for across-the-board reductions in, or amendments to, such benefits similarly affecting all senior executives of the Corporation and relating to service or employment after the date on which such reduction or amendment is announced; or

 

  (ii) the failure by the Corporation to continue to provide the Executive with benefits substantially similar to those enjoyed by him under any other retirement arrangement established for the Executive, except for across-the-board reductions in, or amendments to, such benefits similarly affecting all senior executives of the Corporation and relating to service or employment after the date on which such reduction or amendment is announced; or

 

  (iii) the failure of the Corporation to continue to provide benefits at least substantially similar to any of the Corporation’s life insurance, medical, health and accident, disability or investment plans in which the Executive may participate at the date hereof or subsequently or the taking of any action by the Corporation that would directly or indirectly materially reduce any such benefits or deprive the Executive of any material perquisite enjoyed by him, except for across-the-board reductions similarly affecting all senior executives of the Corporation; or

 

  (iv) the failure by the Corporation to provide the Executive with the number of paid vacation days to which the Executive is entitled in accordance with the Corporation’s normal vacation policy in effect as of the date hereof or subsequently;

 

  (f)

Deferred Compensation . The failure by the Corporation to pay the Executive any portion of his then current compensation without his consent except pursuant to an across-the-board compensation deferral similarly affecting all senior executives of the Corporation or the failure by the Corporation to pay to the Executive any installment of deferred

 

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  compensation at the time such installment is due under any deferred compensation program of the Corporation;

 

  (g) No Assumption by Successor . The failure of the Corporation to obtain a satisfactory agreement from a successor to assume and agree to perform this Agreement as contemplated by Section 7.0 hereof, or if the business or undertaking in connection with which the Executive’s services are principally performed is sold at any time after a Change in Control and the Executive’s employment is transferred as a result, the purchaser of such business shall fail to agree to provide the Executive with the same or a comparable position, duties, compensation and benefits, as described in paragraphs (d) and (e) above, as provided to the Executive by the Corporation immediately prior to the Change in Control;

 

  (h) Disposition of “All or Substantially All” . The disposition by the Corporation of all or substantially all of the assets of the Corporation.

 

4.0 Notice of Termination; Date of Termination

 

  4.1 Notice of Termination . Any termination of the Executive’s employment either by the Executive for Good Reason or by the Corporation for Cause or without Cause, as applicable, shall be communicated by written Notice of Termination to the Executive or to the Corporation, as the case may be, in accordance with Section 8.0 hereof.

 

  4.2 Content of Notice of Termination . The “Notice of Termination” shall mean a notice which shall indicate the specific termination provision in this Agreement relied upon by the Executive or the Corporation, as the case may be, and shall set forth in reasonable detail the facts and circumstances claimed as the basis for the Executive’s terminating his employment or the Corporation’s terminating the Executive’s employment, as the case may be. The Executive’s failure to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of “Good Reason” shall not result in a waiver of his rights hereunder or preclude him from asserting such fact or circumstance in enforcing his rights hereunder.

 

  4.3 Date of Termination . The “Date of Termination” shall mean if the Executive’s employment is terminated by the Corporation without Cause or by the Executive for Good Reason, the date specified in the Notice of Termination (which, in the case of termination by the Executive for Good Reason, shall be not less than 15 days nor more than 60 days from the date such Notice of Termination is given).

 

  4.4

Notice Required . For the purposes of this Section 4.0, any purported termination of the Executive’s employment which is not effected pursuant to a Notice of Termination satisfying the requirements of Section 4.2 hereof shall not be effective.

 

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5.0 Compensation and Benefits following Change in Control

Following both (i) a Change in Control of the Corporation and (ii) the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason in accordance with the terms of this Agreement, the Corporation shall cause to be provided to the Executive the following benefits in full satisfaction of all of the Corporation’s obligations to the Executive:

 

  (a) Accrued Compensation and Payment Date . The Corporation shall pay the Executive, in a lump sum, not later than the 30th business day following the Date of Termination (the “Payment Date”), his full base salary through the Date of Termination at the rate in effect at the time the Notice of Termination is given.

 

  (b) Severance Payment, Severance Period and Severance Salary Rate . In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination, the Corporation shall pay to the Executive, on account of both compensation in lieu of notice and loss of office, not later than the Payment Date, a lump sum severance payment (the “Severance Payment”) equal to the amount of base salary the Executive would have earned had he continued to be employed until the end of the 24th full calendar month following the Date of Termination (the “Severance Period”) assuming that the Executive’s rate of monthly base salary during the Severance Period would be equal to the highest monthly rate of base salary which was payable to him by the Corporation (or any corporation affiliated with the Corporation) during the 24th month period immediately preceding the Date of Termination (the “Severance Salary Rate”).

 

  (c) Investment Plan . The Corporation shall pay the Executive the maximum contribution that the Corporation would have been required to make on behalf of the Executive to the Corporation’s investment plan in respect of the Severance Period if he were fully employed and elected to have the Corporation match his investment plan contribution determined as if the Executive continued to make contributions to the Corporation’s investment plan at a rate equal to the contributions actually made by him under the investment plan in the last complete calendar year immediately preceding the Date of Termination. This payment will be made in lump sum on the Payment Date.

 

  (d)

Annual Incentive Plans . The Corporation shall pay to the Executive, in cash, in a lump sum, no later than the Payment Date, an amount in lieu of his participation in the HPR Plan, or in any other annual incentive compensation plan or program, or any replacement plan in which he is participating as of the Notice of Termination which shall be equal to (i) two times the average of the amounts paid to him under the HPR Plan (excluding for greater certainty any President’s Award) in respect of the three complete fiscal years of the Corporation immediately preceding the

 

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  Date of Termination, and (ii) (in cases where the Date of Termination is not the end of a fiscal year), a pro rata payment for the number of days which have elapsed in the fiscal year in which the Date of Termination occurs, based on the same calculation described above. For the purposes of this Section 5.0(d), where the Date of Termination is prior to the completion of three complete fiscal years of the Corporation following the implementation of the HPR Plan, the average of amounts paid to the Executive under the HPR Plan shall be determined based on each complete fiscal year of the Corporation immediately preceding the Date of Termination.

 

  (e) Performance Share Unit Plan . In respect of the Executive’s entitlements under the Performance Share Unit Plan for Employees of Encana Corporation (the “PSU Plan”), performance share units (“PSUs”) granted to the Executive as at the effective date of such Change in Control (as that term is defined under the PSU Plan) shall become vested and paid as applicable and in accordance with the terms of the PSU Plan.

 

  (f) Restricted Share Unit Plan . In respect of the Executive’s entitlements under the Restricted Share Unit Plan for Employees of Encana Corporation (the “RSU Plan”), restricted share units (“RSUs”) granted to the Executive as at the effective date of such Change in Control (as that term is defined under the RSU Plan) shall become vested and payable as applicable and in accordance with the terms of the RSU Plan.

 

  (g) Stock Options and Stock Appreciation Rights (“SARs”) . All stock options and SARs held by the Executive as at the Notice of Termination shall become vested as follows:

 

  (i) all stock options granted prior to February 2008 shall become immediately vested.

 

  (ii) All Base Options, Base SARs, Performance Options and Performance SARs (as those terms are defined in the applicable and respective stock option grant agreements or the Employee Stock Appreciation Rights Plan (the “ESAR Plan”) as applicable) granted in or after February 2008 shall become immediately vested; and

 

  (iii) Bonus Options and Bonus SARs (as those terms are defined in the applicable grant agreements or the ESAR Plan) granted in or after February 2008 shall continue to vest pursuant to the terms of the applicable grant agreement or the ESAR Plan, as applicable, during the lesser of the period of vesting in such agreement or ESAR Plan and 24 months following the Date of Termination.

 

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All vested stock options and SARs may be exercised for the lesser of their term or 24 months following the Date of Termination.

 

  (h) Insurance Benefits . The Corporation shall continue to provide the Executive and his dependants with the same level of life, disability, accident, dental and health insurance benefits the Executive and his dependents were receiving or entitled to receive immediately prior to the Date of Termination until the end of the Severance Period; provided, however, that if for any reason such insurance benefit is not provided to the end of the Severance Period, a lump sum payment equal to the present value of the cost to the Corporation of providing such insurance shall be paid to the Executive. The contributions by the Executive required under such programs shall be payable to the Corporation or to the insurer, as applicable, on the same basis as if the Executive continued to be employed during the Severance Period.

 

  (i) Vacation . The Corporation shall pay the Executive, in cash, in a lump sum, no later than the Payment Date, an amount equal to all accrued but unused vacation determined as of the Date of Termination. The amount of such payment shall be determined based upon the Executive’s Severance Salary Rate. In no event shall the amount of vacation time to which the Executive is entitled be less than the amount to which he would have been entitled under the vacation policy in effect as of the Change in Control.

 

  (j) Career Counselling . At the Executive’s request, the Corporation shall provide the Executive with career counselling services at a maximum cost to the Corporation of $15,000 per annum. Such services shall be provided until the Executive obtains subsequent employment or establishes his own business activity or to the end of the Severance Period, whichever is earliest. The Executive shall be entitled to obtain such services from the recognized professional career counselling firm of his choice in the major Canadian metropolitan area in or nearest to where he resides at the time he begins to use such services. In order to ensure the provision of such services, the Corporation and the Executive shall enter into a contract with the career counselling services firm, pursuant to which such firm shall provide the Executive with the career counselling services required herein.

 

  (k) Annual Allowance . The Corporation shall pay to the Executive no later than the Payment Date an amount equivalent to two times the annual allowance to which he is entitled as of the date of the Notice of Termination.

 

  (l)

Financial Counselling . The Corporation shall, during the Severance Period, continue to provide the Executive with the same financial counselling benefits as those to which he was entitled as of the Change in Control. Such services shall be provided throughout the Severance Period, including the preparation of his tax return(s) for himself for the taxation

 

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  year during which the Severance Period ends. To ensure the provision of such services, the Corporation and the Executive shall, as soon as practicable, enter into a contract with the financial counselling services firm, pursuant to which such firm shall provide the Executive with the financial counselling services required herein.

 

  (m) Executive Medical . The Corporation shall continue to provide the Executive with the same executive physical examination benefits as those to which he was entitled as of the Change in Control. Such benefits shall be provided for the duration of the Severance Period. In order to ensure the provision of such benefits, the Corporation and the Executive shall, as soon as practicable, enter into a contract with a medical services firm, pursuant to which such firm shall provide the Executive with the executive physical examination services required herein.

 

  (n) Professional Membership Fees . The Corporation shall pay the Executive, in cash, in a lump sum, no later than the Payment Date, an after-tax amount equal to the present value of the cost of membership fees for membership in professional organizations related to his position and duties with the Corporation that he would have incurred throughout the Severance Period that would have been payable or reimbursable by the Corporation under the terms of its policy in effect as of the Change in Control had he continued to be employed during the Severance Period, assuming that the annual cost of such fees was equal to the amount reimbursed by the Corporation for the year preceding the year in which a Notice of Termination is delivered.

 

  (o) Pension Benefits . In addition to the benefits to which the Executive is entitled under the Encana Pension Plans, or any retirement arrangement established with his consent:

 

  (i) The Executive will be credited with pensionable service in the Encana Corporation Canadian Supplemental Pension Plan, as may be amended from time to time or any successor plan thereto, for each of the 24 months included in the Severance Period;

 

  (ii) Calculation of the Executive’s final average annual earnings for purposes of this Section 5.0(o) shall be determined based on the Executive’s annual base salary and HPR Plan award (as applicable and for greater certainty excluding any President’s Award) over the sixty month period prior to the end of the Executive’s Severance Period calculated according to Schedule “A”;

 

  (iii)

The Executive’s age, for the purpose of calculating any early retirement reduction factor under the Encana Corporation Canadian Supplemental Pension Plan, as may be amended from time to time or any successor plan thereto, shall be deemed to be

 

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  equal to the age he would have attained at the end of the Severance Period;

 

  (iv) For the purposes of this Section 5.0(o) and subject to clause 5.0(o)(vii) below, the date of pension commencement shall be determined in accordance with the Encana Corporation Canadian Supplemental Pension Plan, as may be amended from time to time or any successor or replacement plan thereto (the “Supplemental Pension Plans”), but in any event no earlier than the end of the Severance Period;

 

  (v) Subject to clauses 5.0(o)(vi) and (vii) below, the form of benefit to which the Executive is entitled under the Supplemental Pension Plans, including in the event of death prior to the commencement date of the Executive’s pension under the Supplemental Pension Plans, as modified by clauses 5.0(o)(i), (ii), (iii) and (iv) above, shall be determined in accordance with the terms of such plans in effect at the applicable time;

 

  (vi) On or prior to the 15 th business day following the Date of Termination, the Executive may irrevocably elect to receive in lieu of his pension entitlement under the Supplemental Pension Plans, a lump sum payment payable on the Payment Date equal to the actuarial present value of the Executive’s accrued pension under the Supplemental Pension Plans at the Date of Termination as modified by clauses 5.0(o)(i), (ii), (iii) and (iv) above and determined: (A) without any gross up or other adjustment for income tax and not taking into account the non-registered status of the Supplemental Pension Plans, (B) using the same assumptions and methods utilized as at the Date of Termination for purposes of calculating a commuted value upon cessation of employment or membership under the Encana Corporation Canadian Pension Plan, as amended from time to time or any successor registered pension plan thereto, and (C) assuming the Executive’s accrued pension under the Supplemental Pension Plans is fully vested. If the Executive does not elect to receive the lump sum payment provided under this clause 5.0(o)(vi) on or prior to the 15 th business day following the Date of Termination and subject to clause 5.0(o)(vii) below, he shall be deemed to have elected to receive his entitlement under the Supplemental Pension Plans as modified by clauses 5.0(o)(i), (ii), (iii) and (iv) above in accordance with clause 5.0(o)(v) above; and

 

  (vii)

If the Executive is age 55 or older on the Date of Termination, the Executive may elect to commence his pension under the Supplemental Pension Plans as of the Date of Termination. In this event, the Executive’s pension entitlement under the Supplemental

 

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  Pension Plans as modified by clauses 5.0(o)(i), (ii), (iii) and (iv) above, shall be reduced on an actuarial equivalent value basis (but for greater certainty without any gross up or other adjustment for income tax and not taking into account the non-registered status of the Supplemental Pension Plans), using the same assumptions and methods utilized as at the Date of Termination under the Encana Corporation Canadian Pension Plan, as amended from time to time or any successor registered pension plan thereto, to reflect the acceleration of the commencement of the Executive’s pension under the Supplemental Pension Plans from the end of the Severance Period to the Date of Termination.

 

  (p) Legal Fees and Expenses. The Corporation shall pay the Executive’s legal or professional fees and expenses incurred by him as a result of his termination (including actual legal fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement) up to $100,000. In addition, the Corporation will pay legal fees and expenses incurred by the Executive as a result of his termination that are in excess of $100,000 (including actual legal fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement) if a court or other tribunal finds in favour of the Executive.

 

  (q) Deductions . The Executive agrees that benefits and payments to which he is entitled pursuant to this Agreement are subject to deductions required by law.

 

  (r) Calculations . For purposes of determining the present value of an amount, other than for purposes of Section 5.0(o) above, the interest rate to be used shall be the yield for five year constant maturity Canadian government bonds for the current week taken from the most recent weekly Canadian Debt Strategy published by ScotiaMcLeod Inc. or, if for any reason that report is not available at the relevant time, the most recent weekly report published by another recognized Canadian publisher of a report of similar standing chosen by the Corporation. All calculations of amounts payable under this Agreement shall be subject to verification by the Corporation’s independent auditors or actuarial consultants.

 

  (s) No Mitigation . The Executive shall not be required to mitigate the amount of any payment provided for in this Section by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section be reduced by any compensation earned by, or benefits paid to, the Executive as the result of employment, whether by another employer or self-employment, or by pension benefits after the Date of Termination, or otherwise, except as specifically provided in this Section.

 

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6.0 Entire Agreement

 

  6.1 This Agreement includes Schedule “A” and constitutes the entire agreement between the Parties hereto concerning change in control benefits and obligations and supersedes all prior agreements or understandings. There are no representations or warranties, express or implied, or any conditions or collateral or implied agreements which apply to or govern benefits or obligations relating to a change in control of the Corporation between the Parties other than as are expressly set forth or referred to herein. For greater certainty, all change in control agreements or contracts in existence prior to the date hereof are terminated and replaced by this Agreement. This Agreement cannot be amended except by a written agreement executed by the Parties hereto.

 

7.0 Successors; Binding Agreement

 

  7.1 Assumption by Successors . The Corporation will require any successor corporation (whether direct or indirect, and whether by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Corporation to expressly assume and to agree to perform this Agreement in the same manner and to the same extent as the Corporation, as if no such succession had taken place, and to the extent that the Corporation has not already satisfied an obligation hereunder. Failure of the Corporation to obtain such assumption and agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Executive to compensation from the Corporation in the same amount and on the same terms as the Executive would be entitled to if the Executive were to terminate the Executive’s employment for Good Reason following a Change in Control of the Corporation, except that for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, “Corporation” shall mean the Corporation as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.

 

  7.2 Enforceability by Beneficiaries . This Agreement shall enure to the benefit of and be enforceable by the Parties hereto and their respective heirs, legal or personal representatives, successors and assigns and if the Executive should die while any amount would still be payable to him hereunder if he had continued to live, all such amounts shall be paid in accordance with the terms of this Agreement to the Executive’s devisee, legatee or other designee or, if there is no such designee, to his estate.

 

8.0 Notices

 

  8.1

Notices . For the purpose of this Agreement, notices and all other communications provided for in this Agreement shall be in writing, shall be deemed to have been duly given when delivered or sent by facsimile or other form of recorded electronic communication, charges prepaid and confirmed in writing or on the

 

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  third business day after having been sent by registered mail, postage prepaid, as follows:

If to the Corporation:

Encana Corporation

Encana on 8th

1800, 855 – 2 nd Street SW

Calgary, Alberta

T2P 4Z5

Attention: Vice-President, General Counsel

Facsimile: (403) 645-4617

If to the Executive:

Michael G. McAllister

Encana Corporation

Encana on 9 th

150 – 9 th Avenue SW

Calgary, Alberta

T2P 3H9

Fax: (403) 645-2881

Each of the Corporation and the Executive may from time to time change its address for notice by notice to the other Party given in the manner aforesaid.

 

9.0 Miscellaneous

 

  9.1 Amendment and Waiver . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing. No waiver by either Party hereto of, or in compliance with, any condition or provision of this Agreement to be performed by such other Party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.

 

  9.2 Governing Law . This Agreement shall be construed and enforced in accordance with, and the rights of the Parties shall be governed by, the laws of the Province of Alberta.

 

  9.3 Currency . All amounts in this Agreement are stated in and shall be paid in Canadian currency.

 

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10.0 Validity

 

  10.1 The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

 

11.0 Counterparts

 

  11.1 This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same Agreement.

 

12.0 Headings

 

  12.1 The division of this Agreement into sections, subsections and clauses, or other portions hereof and the insertion of headings or subheadings, are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.

 

13.0 Time of the Essence

 

  13.1 Time shall be of the essence in this Agreement.

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

    ENCANA CORPORATION
    Per:   /s/ Randall K. Eresman
     

 

      Randall K. Eresman
    Per:   /s/ Barry W. Harrison
     

 

      Barry W. Harrison
/s/ Patricia MacDonald     /s/ Michael G. McAllister

 

   

 

Witness     Michael G. McAllister

 

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SCHEDULE “A”

COMPUTATION OF PENSIONABLE EARNINGS

Section 5.0(o)

 

Annual Base Salary

  

HPR Plan Award

Annual Base Salary    Lesser of (i) 40% of annual base salary and (ii) HPR Plan Award for applicable calendar year commencing 2011 and thereafter.

For the purposes of applying this Schedule “A” to the Severance Period, the following shall be applicable:

 

  (i) Base Salary for each month during the Severance Period will be determined using the Severance Salary Rate.

 

  (ii) HPR Plan Award relating to each month during the Severance Period shall be equal to 1/12 th of the average of the amounts paid to the Executive under the HPR Plan in respect of the three complete fiscal years of the Corporation immediately preceding the Date of Termination (or such shorter period, as applicable) as determined pursuant to Section 5.0(d) hereof.

Exhibit 10.21

CHANGE IN CONTROL AGREEMENT

THIS AGREEMENT made effective as of the 10 th day of June 2013

BETWEEN

ENCANA CORPORATION , a body corporate registered in the Province of Alberta (the “Corporation”)

OF THE FIRST PART

-and-

DOUGLAS J. SUTTLES, of the City of Calgary, in the Province of Alberta (the “Executive”)

OF THE SECOND PART

WHEREAS the Board of Directors of the Corporation (the “Board”) recognizes that the establishment and maintenance of a sound and vital management team is essential to the protection and enhancement of the best interests of the Corporation and its shareholders;

AND WHEREAS the Board further recognizes that, as is the case with many corporations, the possibility of a Change in Control of the Corporation could arise and create a climate of uncertainty among the Corporation’s senior executives, including without limitation, the President & Chief Executive Officer (“CEO”), and could result in the distraction of such senior executives to the detriment of the Corporation and its shareholders;

AND WHEREAS the Board believes it is important, should the Corporation or its shareholders receive a proposal for transfer of control of the Corporation, that the Executive be able to assess and advise the Board whether such proposal would be in the best interests of the Corporation and its shareholders and to take such other action regarding such proposal as the Board might determine to be appropriate, without being distracted by the uncertainties of his own situation;

AND WHEREAS , in order to induce the Executive to remain in the employ of the Corporation and to assure the Corporation of his continued and undivided attention and services, notwithstanding any events which might result in a Change in Control of the Corporation, this Agreement, the principal terms of which has been previously approved by the Board, records certain benefits extended to the Executive.

NOW THEREFORE , in consideration of the covenants and agreements hereinafter set forth and for other good and valuable consideration (the receipt and sufficiency whereof are hereby acknowledged by each of the Parties), the Parties hereby mutually covenant and agree as follows:


1.0 Term of Agreement

 

1.1 Term . This Agreement shall commence on the date hereof and shall continue in effect during the Executive’s employment with the Corporation as President & CEO until such time as there shall occur a Change in Control of the Corporation and for a period of three years from the Effective Date of such Change in Control (the “Term”); provided, however, that if payment of compensation and benefits has begun under this Agreement, the payment of such compensation and benefits shall continue beyond the end of the Term in accordance with the applicable provisions of this Agreement.

 

2.0 Change in Control

 

2.1 Compensation and Benefits not until. The Parties acknowledge and agree that no compensation or benefits shall be payable to the Executive hereunder unless and until there shall have occurred both: (i) a Change in Control of the Corporation; and (ii) the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason, in accordance with the terms of this Agreement.

 

2.2 “Change in Control”. For purposes of this Agreement, a “Change in Control” of the Corporation shall be deemed to have occurred if:

 

  (a) any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity, or any persons acting jointly or in concert with the foregoing, is or becomes the beneficial owner directly or indirectly of, securities of the Corporation representing more than 30% of the combined voting power of the Corporation’s then outstanding securities entitled to vote in the election of the directors of the Corporation (the “Voting Shares”);

 

  (b) the Corporation shall have disposed of: (i) all or substantially all of its assets, such that shareholder approval was required under the Canada Business Corporations Act; or (ii) assets in any 12 month period representing 50% or more of the total assets of the Corporation, determined as of the date of the audited financial statements of the Corporation then most recently published;

 

  (c) pursuant to a single election or appointment or a series of elections or appointments over any period from and after the date of this Agreement: (i) those individuals who at the date of the Agreement constituted the Board, together with (ii) any new or additional director or directors whose nomination for election by the Corporation’s shareholders, or whose appointment to the Board by the Board, has been approved by at least 75% of the votes cast by all of the directors then still in office, who either were directors at the date of this Agreement or whose appointment or nomination for election was previously so approved, cease for any reason to constitute a majority of the Board; or

 

  (d) the Board, by resolution duly adopted by the affirmative vote of a simple majority of the votes cast by the Board, determines that, for purposes of this Agreement, a Change in Control of the Corporation has occurred.

 

Page 2


2.3 Employee Benefit Plans, etc. For the purposes of determining the percentage portion or fraction of Voting Shares under Section 2.2(a), securities beneficially owned or controlled or directed by an employee plan or related trust sponsored or maintained by the Corporation or its subsidiaries shall not be taken into account in the determination of the numerator but shall be taken into account in the determination of the denominator.

 

2.4 When Compensation and Benefits Payable . Upon the occurrence of both: (i) a Change in Control of the Corporation; and (ii) the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason, as contemplated by the terms of this Agreement, the provisions of Section 5.0 hereof in respect of the compensation and benefits payable, as applicable, shall apply.

 

2.5 Definitions and Interpretation . For purposes of this Section 2.0:

 

  (a) the term “acting jointly or in concert” shall be interpreted in accordance with Section 159 of the Securities Act (Alberta), as amended; and

 

  (b) the term “beneficial ownership” shall be interpreted in accordance with Sections 5 and 6 of the Securities Act (Alberta) and “beneficial owner” shall have a corresponding meaning, except that for purposes of this Agreement, options and convertible securities granted by the Corporation to employees, officers or directors shall not be included in determining beneficial ownership or beneficial owner.

 

3.0 Definitions

For purposes of this Agreement and for purposes of determining such compensation and benefits as may be payable hereunder following the occurrence of a Change in Control of the Corporation, the following definitions shall apply:

 

3.1 Affiliate ”. “Affiliate” shall be interpreted in accordance with the definition of such term as contained in Section 2 of the Canada Business Corporations Act (Canada).

 

3.2 Cause ”. “Cause” means:

 

  (a) the substantial or material breach by the Executive of any policy or practices of the Corporation or the willful and continued failure by the Executive to substantially perform his duties with the Corporation or an Affiliate after a written demand for substantial performance is delivered to the Executive by the Board, which demand specifically identifies the manner in which the Board believes that the Executive has not substantially performed his duties, and the Executive fails to correct such failure to perform his duties within 30 days after such written demand is delivered to him; provided, however, that if such failure occurs after the happening of circumstances which would entitle the Executive to terminate for Good Reason, the same shall not constitute the basis for “Cause”; or

 

  (b) the willful engaging by the Executive in conduct which is dishonest or demonstrably and materially injurious to the Corporation or an Affiliate,

 

Page 3


  monetarily or otherwise. For purposes of this definition, any action by the Executive or any failure on his part to act, shall be deemed “willful” when done (or omitted to be done) by the Executive not in good faith and if when done (or omitted to be done) the Executive had or ought to have had the reasonable belief that his action or omission would not be in the best interests of the Corporation or an Affiliate.

Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the Board, finding that in the good faith opinion of the Board, the Executive was guilty of conduct set forth in clause (a) or (b) of this Section and specifying the particulars thereof.

 

3.3 Effective Date ”. “Effective Date” means the date of the occurrence of the specified event constituting a Change in Control of the Corporation.

 

3.4 Good Reason ”. “Good Reason” means any of the following, unless the Executive shall have given his express written consent thereto:

 

  (a) Changed Duties or Status . The assignment to the Executive of any duties inconsistent with his status as a senior executive of the Corporation or a material alteration in the nature or status of his responsibilities or duties or reporting relationship from those in effect immediately prior to a Change in Control of the Corporation;

 

  (b) Reduced Salary . A reduction by the Corporation in the Executive’s annual base salary as in effect on the date hereof (or as the same may be increased from time to time);

 

  (c) Relocation . The Corporation’s requiring the Executive to be based anywhere other than where the Executive is based at the time of a Change in Control of the Corporation, except for: (i) required travel on the Corporation’s business to an extent substantially consistent with the Executive’s business travel obligations in the ordinary course of business immediately prior to the Change in Control of the Corporation; or (ii) where the Executive is relocated or repatriated by the Corporation, such relocation as may be required by applicable law or performed in accordance with an agreed-upon assignment with the Corporation or an Affiliate;

 

  (d) Incentive Compensation Plans . Changes to the terms of the Corporation’s High Performance Results Plan (the “HPR Plan”) or any replacement short-term incentive plan in which the Executive is participating as of the Change in Control (the “Annual Incentive Plans”), the Corporation’s Employee Stock Option Plan (“Option Plan”), Performance Share Unit Plan for Employees of Encana Corporation (“PSU Plan”), or Restricted Share Unit Plan for Employees of Encana Corporation (“RSU Plan”) or to such other long-term incentive plans in which the Executive may be participating prior to the Change in Control of the

 

Page 4


  Corporation, which would have the effect of materially reducing the Executive’s aggregate potential incentive compensation, except in circumstances where the Corporation alters or reduces the opportunity for potential incentive compensation available under such plans for all senior executives of the Corporation,

 

  (e) Pension Plan, Benefit Plans and Perquisites . The failure by the Corporation to continue to provide the Executive:

 

  (i) with pension and related benefits substantially similar as those enjoyed by him under the Encana Corporation Canadian Pension Plan and the Encana Corporation Canadian Defined Contribution Savings Plan (collectively, the “Encana Pension Plans”), except for across-the-board reductions in, or amendments to, such benefits similarly affecting all senior executives of the Corporation and relating to service or employment after the date upon which such reduction or amendment is announced; or

 

  (ii) with benefits substantially similar to those enjoyed by him under any other retirement arrangement established for the Executive, except for across-the-board reductions in, or amendments to, such benefits similarly affecting all senior executives of the Corporation and relating to service or employment after the date on which such reduction or amendment is announced; or

 

  (iii) with benefits at least substantially similar to any of the Corporation’s life insurance, medical, health and accident, disability or investment plans in which the Executive may participate at the date hereof or subsequently, or the taking of any action by the Corporation that would directly or indirectly materially reduce any such benefits or deprive the Executive of any material perquisite enjoyed by him, except for across-the-board reductions in such benefits or comparable benefits similarly affecting all senior executives of the Corporation; or

 

  (iv) with the number of paid vacation days to which the Executive is entitled in accordance with the normal vacation policy in effect in respect of the Executive as of the date hereof or subsequently;

 

(f) Deferred Compensation . The failure by the Corporation to pay the Executive any portion of his then current compensation without his consent except pursuant to an across-the-board compensation deferral similarly affecting all senior executives of the Corporation or the failure by the Corporation to pay to the Executive any installment of deferred compensation at the time such installment is due under any deferred compensation program of the Corporation;

 

(g) No Assumption by Successor . The failure of the Corporation to obtain a satisfactory agreement from a successor to assume and agree to perform this Agreement as contemplated by Section 7.0 hereof, or if the business or undertaking in connection with which the Executive’s services are principally performed is sold at any time after a

 

Page 5


  Change in Control and the Executive’s employment is transferred as a result, the purchaser of such business shall fail to agree to provide the Executive with the same or a comparable position, duties, compensation and benefits, as described in paragraphs (d) and (e) above, as provided to the Executive by the Corporation immediately prior to the Change in Control;

 

(h) Disposition of “All or Substantially All” . The disposition by the Corporation of all or substantially all of the assets of the Corporation.

 

4.0 Notice of Termination; Date of Termination

 

4.1 Notice of Termination . Any termination of the Executive’s employment either by the Executive for Good Reason or by the Corporation for Cause or without Cause, as applicable, shall be communicated by written Notice of Termination to the Executive or to the Corporation, as the case may be, in accordance with Section 8.0 hereof.

 

4.2 Content of Notice of Termination . The “Notice of Termination” shall mean a notice which shall indicate the specific termination provision in this Agreement relied upon by the Executive or the Corporation, as the case may be, and shall set forth in reasonable detail the facts and circumstances claimed as the basis for the Executive’s terminating his employment or the Corporation’s terminating the Executive’s employment, as the case may be. The Executive’s failure to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of “Good Reason” shall not result in a waiver of his rights hereunder or preclude him from subsequently asserting such fact or circumstance in enforcing his rights hereunder.

 

4.3 Date of Termination . The “Date of Termination” shall mean if the Executive’s employment is terminated by the Corporation without Cause or by the Executive for Good Reason, the date specified in the Notice of Termination (which, in the case of termination by the Executive for Good Reason, shall be not less than 15 days nor more than 60 days from the date such Notice of Termination is given).

 

4.4 Notice Required . For the purposes of this Section 4.0, any purported termination of the Executive’s employment which is not effected pursuant to a Notice of Termination satisfying the requirements of Section 4.2 hereof shall not be effective.

 

5.0 Compensation and Benefits following Change in Control

Following both: (i) a Change in Control of the Corporation; and (ii) the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason, in accordance with the terms of this Agreement, the Corporation shall cause to be provided to the Executive in exchange for the Executive’s execution and return to the Corporation of a General Release on such date and in such form as may be provided to the Executive by the Corporation, acting reasonably, the following benefits in full satisfaction of all of the Corporation’s obligations to the Executive:

 

  (a) Accrued Compensation and Payment Date . The Corporation shall pay the Executive, in a lump sum, not later than the 30th business day following the Date

 

Page 6


  of Termination (the “Payment Date”), his full base salary through the Date of Termination at the rate in effect at the time the Notice of Termination is given.

 

  (b) Severance Payment, Severance Period and Severance Salary Rate . In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination, the Corporation shall pay to the Executive, on account of both compensation in lieu of notice and loss of office, not later than the Payment Date, a lump sum severance payment (the “Severance Payment”) equal to the amount of base salary the Executive would have earned had he continued to be employed until the end of the 24 th full calendar month following the Date of Termination (the “Severance Period”) assuming that the Executive’s rate of monthly base salary during the Severance Period would be equal to the highest monthly rate of base salary which was payable to him by the Corporation or an Affiliate during the 24th month period immediately preceding the Date of Termination (the “Severance Salary Rate”).

 

  (c) Investment Plan . The Corporation shall pay the Executive the maximum contribution the Corporation would have been required to make on behalf of the Executive to the Corporation’s Canadian Investment Plan in respect of the Severance Period if the Executive had remained fully employed and elected to have the Corporation match his Investment Plan contribution, determined as if the Executive continued to make contributions to the Corporation’s Investment Plan at a rate equal to the contributions actually made by him under the Investment Plan in the last complete calendar year immediately preceding the Date of Termination. This payment will be made in cash, in a lump sum, on the Payment Date.

 

  (d) Annual Incentive Plans . The Corporation shall pay to the Executive, in cash, in a lump sum, no later than the Payment Date, an amount in lieu of his participation in the Annual Incentive Plans in which he is participating as of the Notice of Termination, such payment to be equal to: (i) two times the average of the annual amounts paid to the Executive under the Annual Incentive Plans (excluding for greater certainty any special awards thereunder) in respect of the three complete fiscal years of the Corporation immediately preceding the Date of Termination, and (ii) (in cases where the Date of Termination is not the end of a fiscal year), a pro rata payment for the number of days which have elapsed in the fiscal year in which the Date of Termination occurs, based on the same calculation described above. For the purposes of this Section 5.0(d), where the Date of Termination is prior to the completion of three complete fiscal years of amounts payable to the Executive under the Annual Incentive Plans, the average of amounts paid to the Executive under such Plans shall be determined based the average of amounts paid to the Executive under such Plans for each complete fiscal year of the Corporation immediately preceding the Date of Termination.

 

  (e) Performance Share Unit Plan . In respect of the Executive’s entitlements under the Corporation’s PSU Plan, Performance Share Units (“PSUs”) granted to the Executive as at the effective date of such Change in Control (as defined under the

 

Page 7


  PSU Plan) shall become vested and paid as applicable and in accordance with the terms of the PSU Plan and corresponding PSU Grant Agreement(s).

 

  (f) Restricted Share Unit Plan . In respect of the Executive’s entitlements under the Corporation’s RSU Plan, Restricted Share Units (“RSUs”) granted to the Executive as at the effective date of such Change in Control (as defined under the RSU Plan) shall become vested and payable as applicable and in accordance with the terms of the RSU Plan and corresponding RSU Grant Agreement(s).

 

  (g) Option Plan and Employee Stock Appreciation Rights Plan . In respect of the Executive’s entitlements under the Corporation’s Option Plan or Employee Stock Appreciation Rights Plan (“ESAR Plan”), as applicable, all Stock Options (“Options”) and Stock Appreciation Rights (“SARs”) held by the Executive as at the Notice of Termination shall be impacted as follows:

 

  (i) All Time-Based Options or Time-Based SARs (as such terms are defined in the applicable and corresponding Option Grant Agreement(s) or the ESAR Plan, as applicable), granted to the Executive as at the effective date of such Change in Control (as defined under such plan documents) shall become vested and payable, as applicable, in accordance with the terms of the respective Option Plan or ESAR Plan (as applicable), and corresponding Grant Agreement(s); and

 

  (ii) Performance Options and Performance SARs (as such terms are defined in the applicable and respective Option Grant Agreement(s) or the ESAR Plan, as applicable) granted to the Executive as at the effective date of such Change in Control (as defined under such plan documents) shall become vested and payable, as applicable, in accordance with the terms of the respective Option Plan or ESAR Plan (as applicable), and corresponding Grant Agreement(s).

All Options and SARs which are vested as of the effective date of the Change in Control may be exercised for the lesser of their term (as defined in the Option Plan or SAR Plan, or corresponding Grant Agreement(s), as applicable) or 24 months following the Date of Termination.

 

  (h) Insurance Benefits . The Corporation shall continue to provide the Executive with the same level of life, disability, accident, dental and health insurance benefits the Executive was receiving or entitled to receive from the Corporation immediately prior to the Date of Termination until the end of the Severance Period; provided, however, that if for any reason such insurance benefit is not provided to the end of the Severance Period, a lump sum payment equal to the present value of the cost to the Corporation of providing such insurance shall be paid to the Executive. The contributions or premiums required to be paid by the Executive under such programs shall be payable by the Executive to the Corporation or to the insurer, as applicable, on the same basis as if the Executive continued to be employed during the Severance Period.

 

Page 8


  (i) Vacation . The Corporation shall pay the Executive, in cash, in a lump sum, no later than the Payment Date, an amount equal to all accrued but unused vacation determined as of the Date of Termination. The amount of such payment shall be determined based upon the Executive’s Severance Salary Rate. In no event shall the amount of vacation time to which the Executive is entitled be less than the amount to which he would have been entitled under the vacation policy in effect as of the Change in Control.

 

  (j) Career Counselling . At the Executive’s request, the Corporation shall provide the Executive with career counselling services at a maximum cost to the Corporation of $15,000 per annum. Such services shall be provided until the Executive obtains subsequent employment or establishes his own business activity or to the end of the Severance Period, whichever is earliest. The Executive shall be entitled to obtain such services from the recognized professional career counselling firm of his choice in the major metropolitan area in or nearest to where he resides at the time he begins to use such services. In order to ensure the provision of such services, the Corporation and the Executive shall enter into a contract with the career counselling services firm, pursuant to which such firm shall provide the Executive with the career counselling services required herein.

 

  (k) Annual Allowance . The Corporation shall pay to the Executive no later than the Payment Date an amount equivalent to two times the annual allowance to which he is entitled as of the date of the Notice of Termination.

 

  (l) Financial Counselling . The Corporation shall, during the Severance Period, continue to provide the Executive with the same financial counselling benefits as those to which he was entitled as of the Change in Control. Such services shall be provided throughout the Severance Period, including the preparation of his tax return(s) for himself for the taxation year during which the Severance Period ends. To ensure the provision of such services, the Corporation and the Executive shall, as soon as practicable, enter into a contract with the financial counselling services firm, pursuant to which such firm shall provide the Executive with the financial counselling services required herein.

 

  (m) Executive Medical . The Corporation shall continue to provide the Executive with the same executive physical examination benefits as those to which he was entitled as of the Change in Control. Such benefits shall be provided for the duration of the Severance Period. In order to ensure the provision of such benefits, the Corporation and the Executive shall, as soon as practicable, enter into a contract with a medical services firm, pursuant to which such firm shall provide the Executive with the executive physical examination services required herein.

 

  (n) Professional Membership Fees . To the extent not already paid to the Executive under Section 5.0(k), the Corporation shall pay the Executive, in cash, in a lump sum, no later than the Payment Date, an after-tax amount equal to the present value of the cost of membership fees for membership in professional

 

Page 9


  organizations related to his position and duties with the Corporation that he would have incurred throughout the Severance Period that would have been payable or reimbursable by the Corporation under the terms of its policy in effect as of the Change in Control had he continued to be employed during the Severance Period, assuming that the annual cost of such fees was equal to the amount reimbursed or paid by the Corporation for the year preceding the year in which a Notice of Termination is delivered.

 

  (o) Pension Benefits . In addition to the benefits which the Executive is entitled under the Encana Pension Plans, or any retirement arrangement established by the Corporation for the Executive with his consent:

 

  (i) The Executive will be credited with pensionable contributions in the Encana Corporation Canadian Defined Contribution Savings Plan (the “Supplemental Pension Plan”), as may be amended from time to time or any successor plan thereto, for each of the 24 months included in the Severance Period;

 

  (ii) For purposes of Section 5.0(o)(i), the Executive’s pensionable earnings shall be calculated based on the lesser of: (i) 67% of the Executive’s Severance Salary Rate; and (ii) the average of the annual amounts paid to the Executive under the Annual Incentive Plans (excluding, for greater certainty, any special awards) in respect of the three complete fiscal years of the Corporation immediately preceding the Date of Termination, or such annual average amount as calculated in accordance with Section 5.0(d) hereof;

 

  (iii) On or prior to the 15 th business day following the Date of Termination, the Executive will receive a lump sum cash payment of his accrued entitlements under the Supplemental Pension Plan, payable on the Payment Date, such amount to be determined: (A) without any gross up or other adjustment for income tax and not taking into account the nonregistered status of the Supplemental Pension Plan, and (B) assuming the Executive’s accrued entitlement under the Supplemental Pension Plan is fully vested.

 

(p) Legal Fees and Expenses. The Corporation shall pay the Executive’s legal or professional fees and expenses incurred by him as a result of his termination (including actual legal fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement) up to $100,000. Such fees shall be reimbursed by the Corporation reasonably promptly following receipt of a copy of any invoice from the Executive evidencing the payment by the Executive of such fees. In addition, the Corporation will pay legal fees and expenses incurred by the Executive as a result of his termination that are in excess of $100,000 (including actual legal fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right

 

Page 10


  or benefit provided by this Agreement) if a court or other tribunal finds in favour of the Executive.

 

(q) Deductions . The Executive agrees that benefits and payments to which he is entitled pursuant to this Agreement are subject to deductions or other source withholdings as may be required by law.

 

(r) Calculations . For purposes of determining the present value of an amount, other than for purposes of Section 5.0(o) above, the interest rate to be used shall be the yield for five year constant maturity Canadian government bonds for the current week taken from the most recent weekly Canadian Debt Strategy published by ScotiaMcLeod Inc. or, if for any reason that report is not available at the relevant time, the most recent weekly report published by another recognized Canadian publisher of a report of similar standing chosen by the Corporation. Calculations of pension amounts payable under this Agreement shall be subject to verification by the Corporation’s actuarial consultants.

 

(s) No Mitigation . The Executive shall not be required to mitigate the amount of any payment provided for in this Section by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided to the Executive by the Corporation referred to in this Section be reduced by any compensation earned by, or benefits paid to, the Executive as the result of employment, whether by another employer or self-employment, or by pension benefits after the Date of Termination, or otherwise, except as specifically provided in this Section

 

6.0 Entire Agreement

 

  6.1 This Agreement constitutes the entire agreement between the Parties hereto concerning change in control benefits and obligations and supersedes all prior agreements or understandings. There are no representations or warranties, express or implied, or any conditions or collateral or implied agreements which apply to or govern benefits or obligations relating to a change in control of the Corporation between the Parties other than as are expressly set forth or referred to herein. For greater certainty, all change in control agreements or contracts in existence prior to the date hereof are terminated and replaced by this Agreement. This Agreement cannot be amended except by a written agreement executed by the Parties hereto.

 

7.0 Successors; Binding Agreement

 

  7.1 Assumption by Successors . The Corporation will require any successor corporation (whether direct or indirect, and whether by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Corporation to expressly assume and to agree to perform this Agreement in the same manner and to the same extent as the Corporation, as if no such succession had taken place, and to the extent that the Corporation has not already satisfied an obligation hereunder. Failure of the Corporation to obtain such assumption and agreement prior to the effectiveness of any such succession shall

 

Page 11


  be a breach of this Agreement and shall entitle the Executive to compensation from the Corporation in the same amount and on the same terms as the Executive would be entitled to if the Executive were to terminate the Executive’s employment for Good Reason following a Change in Control of the Corporation, except that for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, “Corporation” shall mean the Corporation as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.

 

  7.2 Enforceability by Beneficiaries . This Agreement shall enure to the benefit of and be enforceable by the Parties hereto and their respective heirs, legal or personal representatives, successors and assigns and if the Executive should die while any amount would still be payable to him hereunder if he had continued to live, all such amounts shall be paid in accordance with the terms of this Agreement to the Executive’s devisee, legatee or other designee or, if there is no such designee, to his estate.

 

8.0 Notices

 

  8.1 Notices . For the purpose of this Agreement, notices and all other communications provided for in this Agreement shall be in writing, shall be deemed to have been duly given when delivered or sent by facsimile, charges prepaid and confirmed in writing or on the third business day after having been sent by registered mail, postage prepaid, as follows:

If to the Corporation:

Encana Corporation

500 Centre Street S.E.

Calgary, Alberta

T2P 2S5

Attention: Executive Vice-President and General Counsel

Facsimile: (403) 645-4617

If to the Executive:

Encana Corporation

500 Centre Street S.E.

Calgary, Alberta

T2P 2S5

Attention: Doug Suttles, President & Chief Executive Officer

Each of the Corporation and the Executive may from time to time change its address for notice by notice to the other Party given in the manner aforesaid.

 

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9.0 Subject to Clawback Policy

 

9.1 Notwithstanding any other provision herein, the Executive acknowledges and agrees that entitlements to any and all incentive compensation hereunder (including any portion thereof) and/or any payments in respect thereof shall be expressly subject to the terms and conditions of the Corporation’s “Incentive Compensation Clawback Policy” (the “Policy”), attached hereto as Schedule “A”, as same may be amended by the Corporation from time to time. Without limiting the generality of the foregoing, the provisions of this Agreement shall at all times be interpreted so as to be expressly subject to the provisions of the Policy.

 

10.0 Tax & 409A Compliance

 

10.1 This Agreement and any payment, distribution or other benefit hereunder shall comply with applicable law including, as applicable, all requirements of the Income Tax Act (Canada) any related regulations or other guidance promulgated by the Canada Revenue Agency, the Internal Revenue Code of 1986, as amended (the “Code”), including, without limitation Section 409A thereof any exemption or exclusion therefrom, as well as any related regulations or other guidance promulgated by the U.S. Department of the Treasury or the Internal Revenue Service (“Section 409A”) and, to the extent applicable, shall in be administered in accordance with Section 409A all respects; provided, that for the avoidance of doubt, this provision shall not be construed to require a gross-up payment in respect of any taxes, interest or penalties imposed on Executive as a result of Section 409A.

 

10.2 For purposes of this Agreement, to the extent Section 409A is applicable, Executive shall not be deemed to have terminated employment unless and until a separation from service (within the meaning of Treasury Regulation Section 1.409A-1(h)) has occurred. If Executive is a “specified employee” under Section 409A, no payment, distribution or other benefit provided pursuant to this Agreement constituting a deferral of compensation (within the meaning of Treasury Regulation Section 1.409A-1(b)) that is required to be delayed to comply with Code Section 409A(a)(2)(B)(i) shall be provided before the date that is six months after the date of such separation from service (or, if earlier than the end of such six-month period, the date of death of the specified employee). Any payment, distribution or other benefit that is delayed pursuant to the prior sentence shall be paid on the first business day following the six-month anniversary of the separation from service.

 

10.3 To the extent Section 409A is applicable, in no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement. Any provision that would cause this Agreement or a payment, distribution or other benefit hereunder to fail to satisfy the requirements of Section 409A shall have no force or effect and, to the extent an amendment would be effective for purposes of Section 409A, the parties agree that this Agreement shall be amended to comply with Section 409A. Such amendment shall be retroactive to the extent permitted by Section 409A. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.

 

Page 13


10.4 To the extent Section 409A is applicable, all reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement shall be for expenses incurred during the time period specified in this Agreement, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made not later than the last day of Executive’s taxable year following the taxable year in which such expense was incurred, and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. Notwithstanding anything in this Agreement to the contrary, with respect to payment of legal fees and expenses pursuant to Section 5(p) hereof, if the court or other tribunal has not yet found in favour or against the Executive prior to the last day of Executive’s taxable year following the taxable year in which such fees and expenses were incurred, such fees and expenses will be paid on the last day of such taxable year following the taxable year in which such fees and expenses were incurred. If such court or other tribunal does not ultimately find in favour of the Executive, the Executive will repay to the Corporation as soon as practicable, but in no event more than 90 days after the court or other tribunal renders its ruling, any amounts paid or reimbursed pursuant to the prior sentence that would not have been paid or reimbursed pursuant to Section 5(p) but for the prior sentence.

 

10.5 In the event a payment made to the Executive hereunder would constitute an “excess parachute payment” subjection to Section 280G of the Code, such payment shall be reduced to the highest level such that the payment shall no longer constitute an “excess parachute payment”, and the amount of such reduction shall be forfeited by the Executive. The determination as to whether any payment hereunder is an “excess parachute payment” shall be made by the Board in its sole discretion in good faith.

 

11.0 Miscellaneous

 

11.1 Amendment and Waiver . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing. No waiver by either Party hereto of, or in compliance with, any condition or provision of this Agreement to be performed by such other Party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.

 

11.2 Governing Law . This Agreement shall be construed and enforced in accordance with, and the rights of the Parties shall be governed by, the laws of the Province of Alberta.

 

11.3 Currency . All amounts in this Agreement are stated in and shall be paid in Canadian currency.

 

11.4 Gender and Number . Unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing one gender include the other gender.

 

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12.0 Validity

 

12.1 The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

 

13.0 Counterparts

 

13.1 This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same Agreement.

 

14.0 Headings

 

14.1 The division of this Agreement into sections, subsections and clauses, or other portions hereof and the insertion of headings or subheadings, are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.

 

15.0 Time of the Essence

 

15.1 Time shall be of the essence in this Agreement.

IN WITNESS WHEREOF , the Parties hereto have caused this Agreement to be duly executed effective as of the date first above written.

 

ENCANA CORPORATION
Per:   /s/ Clayton Woitas
 

 

  Clayton Woitas
  Chairman of the Board of Directors
Per:   /s/ Douglas J. Suttles
 

 

  Douglas J. Suttles
  President & Chief Executive Officer
  /s/ Della Gabel
 

 

  Witness

 

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SCHEDULE “A”

INCENTIVE COMPENSATION CLAWBACK POLICY:

By resolution of the Board of Directors (the “ Board ”) of Encana Corporation (“ Encana ” or the “ Corporation ”), this Policy is effective as of this 22 nd day of October, 2012 (the “ Effective Date ”).

This Policy applies to the President & Chief Executive Officer and each Executive-Vice President of the Corporation and any individual who serves in either such capacity on or following the Effective Date (collectively, the “ Executive ”). References in this Policy to the “Corporation” include, where applicable, any affiliate thereof.

This Policy has been adopted to enhance the Corporation’s alignment with best practices in respect of risk management and executive compensation and shall be, at all times, subject to and interpreted in a manner consistent with applicable laws or the rules of any applicable stock exchange (collectively, “ Applicable Rules ”).

This Policy applies to “ Incentive-Based Compensation ” which, for the purposes of this Policy, means compensation relating to the achievement of performance goals or similar conditions, excluding salary, perquisites, benefits and pension entitlements, and including, without limitation, any award or grant of or any eligibility, entitlement or gain of, an Executive under the Corporation’s: (i) High Performance Results Plan, or any other short-term incentive plan; or (ii) Long-Term Incentive (“ LTI ”) program including, without limitation, Employee Stock Option Plan, Employee Stock Appreciation Rights Plan, Performance Share Unit Plan, Restricted Share Unit Plan and Deferred Share Unit Plan, as each may be amended from time to time (including any performance-based grants under any such plans). For greater clarity, this Policy shall not apply to any Incentive-Based Compensation awarded, granted or paid to an Executive prior to the Effective Date.

Where:

 

    the Corporation is required to prepare an accounting restatement due to its material non-compliance with any financial reporting requirement under applicable securities laws (the “ Restatement ”), (the date upon which the Corporation is required to prepare such Restatement is hereinafter the “ Restatement Date ”);

 

    the Executive received Incentive-Based Compensation referable to the financial years subject to the Restatement in excess of what the Executive would have been paid under the Restatement (the “ Overcompensation Amount ”); and

 

    the Executive engaged in gross negligence, intentional misconduct or fraud which caused or significantly contributed to the Corporation’s material non-compliance with applicable securities laws which resulted in the requirement for the Restatement;

the Board shall be entitled:

 

    where and to the extent the Overcompensation Amount has been previously paid, transferred or otherwise made available to the Executive, to require the Executive, by written demand, to reimburse the Corporation for the Overcompensation Amount; and

 

   

where all or a portion of the Overcompensation Amount has not been paid, transferred or otherwise made available to the Executive, the right of the Executive to be so paid or have such benefit transferred or otherwise made available to him or her shall, to the extent required to reimburse the Corporation for such Overcompensation Amount, immediately terminate and be


 

forfeited by the Executive and where required, cancelled by the Corporation to such extent and upon such date as may be specified by the Board; and

 

    to the extent the Overcompensation Amount is not immediately recovered upon demand from the Executive, whether via direct reimbursement, forfeiture and/or cancellation, to require a sufficient quantity or value of any compensation owing by the Corporation to the Executive including, without limitation, any unvested or unexercised awards under the LTls (the “ Outstanding LTIs ”), be immediately withheld and/or irrevocably cancelled by the Corporation to compensate for (or set off the value of same against) the Overcompensation Amount or any unrecovered portion thereof, and to bring any other actions against the Executive which the Board may deem necessary to recover the Overcompensation Amount.

The period of time during which the Corporation shall be entitled to seek recovery of the Overcompensation Amount from the Executive shall be three (3) years from the Restatement Date. Recoupment of Overcompensation Amounts under this Policy shall be initiated by the Corporation at the request of the Board, and all amounts recoverable or payable hereunder shall be paid to the Corporation or as directed by the Board.

If Applicable Rules require the Corporation to adopt a policy or provisions relating to the recoupment or recovery of incentive-based or other compensation based on restated financial statements which are inconsistent with or materially differ from this Policy and the Board adopts such policy or provisions to comply with Applicable Rules (the “ New Policy ”), such New Policy shall replace and supersede this Policy and shall apply to Incentive-Based Compensation granted or awarded to the Executive following the effective date of the New Policy. Subject to Applicable Rules, this Policy shall continue to apply to Incentive-Based Compensation granted or awarded to the Executive prior to the effective date of the New Policy. This Policy may be terminated at any time by the Board.

 

Page 2

Exhibit 10.22

CHANGE IN CONTROL AGREEMENT

THIS AGREEMENT made effective as of the 1 st day of January 2014

BETWEEN

ENCANA CORPORATION , a body corporate registered in the Province of Alberta (the “Corporation”)

OF THE FIRST PART

-and-

DAVID HILL, of the City of Arvada in the State of Colorado (the “Executive”)

OF THE SECOND PART

WHEREAS the Board of Directors of the Corporation (the “Board”) recognizes that the establishment and maintenance of a sound and vital management team is essential to the protection and enhancement of the best interests of the Corporation and its shareholders;

AND WHEREAS the Board further recognizes that an employee is most vulnerable at the point of termination of employment;

AND WHEREAS the Board further recognizes that, as is the case with many corporations, the possibility of a Change in Control of the Corporation could arise and create a climate of uncertainty among the Corporation’s senior executives, and could result in the distraction of such senior executives to the detriment of the Corporation and its shareholders;

AND WHEREAS the Board believes it is important, should the Corporation or its shareholders receive a proposal for transfer of control of the Corporation, that the Executive be able to assess and advise the Board whether such proposal would be in the best interests of the Corporation and its shareholders and to take such other action regarding such proposal as the Board might determine to be appropriate, without being distracted by the uncertainties of his own situation;

AND WHEREAS , in order to induce the Executive to remain in the employ of the Corporation and to assure the Corporation of his continued and undivided attention and services, notwithstanding any events which might result in a Change in Control of the Corporation, this Agreement, the principal terms of which has been previously approved by the Board, records certain benefits extended to the Executive.

NOW THEREFORE , in consideration of the covenants and agreements hereinafter set forth and for other good and valuable consideration (the receipt and sufficiency whereof are hereby acknowledged by each of the Parties), the Parties hereby mutually covenant and agree as follows:


1.0 Term of Agreement

 

1.1 Term . This Agreement shall commence on the date hereof and shall continue in effect through December 31, 2014; provided however that commencing on January 1, 2015 and each January 1 thereafter, the term of this Agreement shall automatically be extended for one additional year during the Executive’s employment until such time as there shall occur a Change in Control of the Corporation and for a period of three years from the Effective Date of such Change in Control (the “Term”); provided, however, that if payment of compensation and benefits has begun under this Agreement, the payment of such compensation and benefits shall continue beyond the end of the Term in accordance with the applicable provisions of this Agreement.

 

2.0 Change in Control

 

2.1 Compensation and Benefits not until. The Parties acknowledge and agree that no compensation or benefits shall be payable to the Executive hereunder unless and until there shall have occurred both: (i) a Change in Control of the Corporation; and (ii) the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason, in accordance with the terms of this Agreement.

 

2.2 “Change in Control”. For purposes of this Agreement, a “Change in Control” of the Corporation shall be deemed to have occurred if:

 

  (a) any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity, or any persons acting jointly or in concert with the foregoing, is or becomes the beneficial owner directly or indirectly of, securities of the Corporation representing more than 30% of the combined voting power of the Corporation’s then outstanding securities entitled to vote in the election of the directors of the Corporation (the “Voting Shares”);

 

  (b) the Corporation shall have disposed of: (i) all or substantially all of its assets, such that shareholder approval was required under the Canada Business Corporations Act; or (ii) assets in any 12 month period representing 50% or more of the total assets of the Corporation, determined as of the date of the audited financial statements of the Corporation then most recently published;

 

  (c) pursuant to a single election or appointment or a series of elections or appointments over any period from and after the date of this Agreement: (i) those individuals who at the date of the Agreement constituted the Board, together with (ii) any new or additional director or directors whose nomination for election by the Corporation’s shareholders, or whose appointment to the Board by the Board, has been approved by at least 75% of the votes cast by all of the directors then still in office, who either were directors at the date of this Agreement or whose appointment or nomination for election was previously so approved, cease for any reason to constitute a majority of the Board; or

 

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  (d) the Board, by resolution duly adopted by the affirmative vote of a simple majority of the votes cast by the Board, determines that, for purposes of this Agreement, a Change in Control of the Corporation has occurred.

 

2.3 Employee Benefit Plans, etc. For the purposes of determining the percentage portion or fraction of Voting Shares under Section 2.2(a), securities beneficially owned or controlled or directed by an employee plan or related trust sponsored or maintained by the Corporation or its subsidiaries shall not be taken into account in the determination of the numerator but shall be taken into account in the determination of the denominator.

 

2.4 When Compensation and Benefits Payable . Upon the occurrence of both: (i) a Change in Control of the Corporation; and (ii) the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason, as contemplated by the terms of this Agreement, the provisions of Section 5.0 hereof in respect of the compensation and benefits payable, as applicable, shall apply.

 

2.5 Definitions and Interpretation . For purposes of this Section 2.0:

 

  (a) the term “acting jointly or in concert” shall be interpreted in accordance with Section 159 of the Securities Act (Alberta), as amended; and

 

  (b) the term “beneficial ownership” shall be interpreted in accordance with Sections 5 and 6 of the Securities Act (Alberta) and “beneficial owner” shall have a corresponding meaning, except that for purposes of this Agreement, options and convertible securities granted by the Corporation to employees, officers or directors shall not be included in determining beneficial ownership or beneficial owner.

 

3.0 Definitions

For purposes of this Agreement and for purposes of determining such compensation and benefits as may be payable hereunder following the occurrence of a Change in Control of the Corporation, the following definitions shall apply:

 

3.1 Affiliate ”. “Affiliate” shall be interpreted in accordance with the definition of such term as contained in Section 2 of the Canada Business Corporations Act (Canada).

 

3.2 Cause ”. “Cause” means:

 

  (a)

the substantial or material breach by the Executive of any policy or practices of the Corporation or the willful and continued failure by the Executive to substantially perform his duties with the Corporation or an Affiliate after a written demand for substantial performance is delivered to the Executive by the Board, which demand specifically identifies the manner in which the Board believes that the Executive has not substantially performed his duties, and the Executive fails to correct such failure to perform his duties within 30 days after such written demand is delivered to him; provided, however, that if such failure occurs after

 

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  the happening of circumstances which would entitle the Executive to terminate for Good Reason, the same shall not constitute the basis for “Cause”; or

 

  (b) the willful engaging by the Executive in conduct which is dishonest or demonstrably and materially injurious to the Corporation or an Affiliate, monetarily or otherwise. For purposes of this definition, any action by the Executive or any failure on his part to act, shall be deemed “willful” when done (or omitted to be done) by the Executive not in good faith and if when done (or omitted to be done) the Executive had or ought to have had the reasonable belief that his action or omission would not be in the best interests of the Corporation or an Affiliate.

Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the Board, finding that in the good faith opinion of the Board, the Executive was guilty of conduct set forth in clause (a) or (b) of this Section and specifying the particulars thereof.

 

3.3 Effective Date ”. “Effective Date” means the date of the occurrence of the specified event constituting a Change in Control of the Corporation.

 

3.4 Good Reason ”. “Good Reason” means any of the following, unless the Executive shall have given his express written consent thereto:

 

  (a) Changed Duties or Status . The assignment to the Executive of any duties inconsistent with his status as a senior executive of the Corporation or a material alteration in the nature or status of his responsibilities or duties or reporting relationship from those in effect immediately prior to a Change in Control of the Corporation;

 

  (b) Reduced Salary . A reduction by the Corporation in the Executive’s annual base salary as in effect on the date hereof (or as the same may be increased from time to time);

 

  (c) Relocation . The Corporation’s requiring the Executive to be based anywhere other than where the Executive is based at the time of a Change in Control of the Corporation, except for: (i) required travel on the Corporation’s business to an extent substantially consistent with the Executive’s business travel obligations in the ordinary course of business immediately prior to the Change in Control of the Corporation; or (ii) where the Executive is relocated or repatriated by the Corporation, such relocation as may be required by applicable law or performed in accordance with an agreed-upon assignment with the Corporation or an Affiliate;

 

  (d)

Incentive Compensation Plans . Changes to the terms of the Corporation’s High Performance Results Plan (the “HPR Plan”) or any replacement short-term incentive plan in which the Executive is participating as of the Change in Control (the “Annual Incentive Plans”), the Corporation’s Employee Stock Option Plan

 

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  (“ESOP”), Performance Share Unit Plan for Employees of Encana Corporation (“PSU Plan”), or Restricted Share Unit Plan for Employees of Encana Corporation (“RSU Plan”) or to such other long-term incentive plans in which the Executive may be participating prior to the Change in Control of the Corporation, which would have the effect of materially reducing the Executive’s aggregate potential incentive compensation, except in circumstances where the Corporation alters or reduces the opportunity for potential incentive compensation available under such plans for all senior executives of the Corporation,

 

  (e) MPP Plan, Benefit Plans and Perquisites . The failure by the Corporation to continue to provide the Executive:

 

  (i) with pension and related benefits substantially similar as those enjoyed by him under the EnCana USA Money Purchase Plan (“MPP”), except for across-the-board reductions in, or amendments to, such benefits or comparable benefits similarly affecting all senior executives of the Corporation and relating to service or employment after the date on which such reduction or amendment is announced; or

 

  (ii) with benefits substantially similar to those enjoyed by him under any other retirement arrangement established for the Executive, except for across-the-board reductions in, or amendments to, such benefits or comparable benefits similarly affecting all senior executives of the Corporation and relating to service or employment after the date on which such reduction or amendment is announced; or

 

  (iii) with benefits at least substantially similar to any of the life insurance, medical, health and accident, disability or investment plans in which the Executive may participate at the date hereof or subsequently or the taking of any action by the Corporation that would directly or indirectly materially reduce any such benefits or deprive the Executive of any material perquisite enjoyed by him, except for across-the-board reductions in such benefits or comparable benefits similarly affecting all senior executives of the Corporation; or

 

  (iv) the failure by the Corporation to provide the Executive with the number of paid vacation days to which the Executive is entitled in accordance with the normal vacation policy in effect in respect of the Executive as of the date hereof or subsequently;

 

  (f) Deferred Compensation . The failure by the Corporation to pay the Executive any portion of his then current compensation without his consent except pursuant to an across-the-board compensation deferral similarly affecting all senior executives of the Corporation or the failure by the Corporation to pay to the Executive any installment of deferred compensation at the time such installment is due under any deferred compensation program of the Corporation;

 

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  (g) No Assumption by Successor . The failure of the Corporation to obtain a satisfactory agreement from a successor to assume and agree to perform this Agreement as contemplated by Section 7.0 hereof, or if the business or undertaking in connection with which the Executive’s services are principally performed is sold at any time after a Change in Control and the Executive’s employment is transferred as a result, the purchaser of such business shall fail to agree to provide the Executive with the same or a comparable position, duties, compensation and benefits, as described in paragraphs (d) and (e) above, as provided to the Executive by the Corporation immediately prior to the Change in Control;

 

  (h) Disposition of “All or Substantially All” . The disposition by the Corporation of all or substantially all of the assets of the Corporation.

 

4.0 Notice of Termination; Date of Termination

 

4.1 Notice of Termination . Any termination of the Executive’s employment either by the Executive for Good Reason or by the Corporation for Cause or without Cause, as applicable, shall be communicated by written Notice of Termination to the Executive or to the Corporation, as the case may be, in accordance with Section 8.0 hereof.

 

4.2 Content of Notice of Termination . The “Notice of Termination” shall mean a notice which shall indicate the specific termination provision in this Agreement relied upon by the Executive or the Corporation, as the case may be, and shall set forth in reasonable detail the facts and circumstances claimed as the basis for the Executive’s terminating his employment or the Corporation’s terminating the Executive’s employment, as the case may be. The Executive’s failure to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of “Good Reason” shall not result in a waiver of his rights hereunder or preclude him from subsequently asserting such fact or circumstance in enforcing his rights hereunder.

 

4.3 Date of Termination . The “Date of Termination” shall mean if the Executive’s employment is terminated by the Corporation without Cause or by the Executive for Good Reason, the date specified in the Notice of Termination (which, in the case of termination by the Executive for Good Reason, shall be not less than 15 days nor more than 60 days from the date such Notice of Termination is given).

 

4.4 Notice Required . For the purposes of this Section 4.0, any purported termination of the Executive’s employment which is not effected pursuant to a Notice of Termination satisfying the requirements of Section 4.2 hereof shall not be effective.

 

5.0 Compensation and Benefits following Change in Control

Following both: (i) a Change in Control of the Corporation; and (ii) the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason, in accordance with the terms of this Agreement, the Corporation shall cause to be provided to the Executive in exchange for the Executive’s execution and return to the Corporation of a General Release on such date and in such form as may be provided to

 

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the Executive by the Corporation, acting reasonably, the following benefits in full satisfaction of all of the Corporation’s obligations to the Executive:

 

  (a) Accrued Compensation and Payment Date . The Corporation shall pay the Executive, in a lump sum, not later than the 30th business day following the Date of Termination (the “Payment Date”), his full base salary through the Date of Termination at the rate in effect at the time the Notice of Termination is given.

 

  (b) Severance Payment. Severance Period and Severance Salary Rate . In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination, the Corporation shall pay to the Executive, on account of both compensation in lieu of notice and loss of office, not later than the Payment Date, a lump sum severance payment (the “Severance Payment”) equal to the amount of base salary the Executive would have earned had he continued to be employed until the end of the 24 th full calendar month following the Date of Termination (the “Severance Period”) assuming that the Executive’s rate of monthly base salary during the Severance Period would be equal to the highest monthly rate of base salary which was payable to him by the Corporation or an Affiliate during the 24th month period immediately preceding the Date of Termination (the “Severance Salary Rate”).

 

  (c) EnCana USA 401(k) Benefits . The Corporation shall pay the Executive the maximum contribution that the Corporation or a subsidiary thereof would have been required to make on behalf of the Executive to the EnCana USA 401 (k) Plan in respect of the Severance Period if he were fully employed and had elected to have the Corporation or a subsidiary thereof match his contribution determined as if the Executive continued to make contributions to the EnCana USA 401 (k) Plan at a rate equal to the contributions actually made by him under the EnCana USA 401(k) in the last complete calendar year immediately preceding the Date of Termination. This payment will be made in cash, in a lump sum, no later than the Payment Date.

 

  (d)

Annual Incentive Plans . The Corporation shall pay to the Executive, in cash, in a lump sum, no later than the Payment Date, an amount in lieu of his participation in the Annual Incentive Plans in which he is participating as of the Notice of Termination, such payment to be equal to: (i) two times the average of the annual amounts paid to the Executive under the Annual Incentive Plans (excluding for greater certainty any special awards thereunder) in respect of the three complete fiscal years of the Corporation, commencing January 1, 2014, immediately preceding the Date of Termination, and (ii) (in cases where the Date of Termination is not the end of a fiscal year), a pro rata payment for the number of days which have elapsed in the fiscal year in which the Date of Termination occurs, based on the same calculation described above. For the purposes of this Section 5.0(d), where the Date of Termination is prior to the completion of three complete fiscal years following January 1, 2014 of amounts payable to the Executive under the Annual Incentive Plans, the average of amounts paid to the Executive under such Plans shall be determined based the average of amounts

 

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  paid to the Executive under such Plans for each complete fiscal year of the Corporation, commencing January 1, 2014, immediately preceding the Date of Termination.

 

  (e) Performance Share Unit Plan . In respect of the Executive’s entitlements under the Corporation’s PSU Plan, Performance Share Units (“PSUs”) granted to the Executive as at the effective date of such Change in Control (as defined under the PSU Plan) shall become vested and paid as applicable and in accordance with the terms of the PSU Plan and corresponding PSU Grant Agreement(s).

 

  (f) Restricted Share Unit Plan . In respect of the Executive’s entitlements under the Corporation’s RSU Plan, Restricted Share Units (“RSUs”) granted to the Executive as at the effective date of such Change in Control (as defined under the RSU Plan) shall become vested and payable as applicable and in accordance with the terms of the RSU Plan and corresponding RSU Grant Agreement(s).

 

  (g) ESOP and Employee Stock Appreciation Rights Plan . In respect of the Executive’s entitlements under the Corporation’s ESOP or Employee Stock Appreciation Rights Plan (“ESAR Plan”), as applicable, all Stock Options (“Options”) and Stock Appreciation Rights (“SARs”) held by the Executive as at the Notice of Termination shall be impacted as follows:

 

  (i) All Time-Based Options or Time-Based SARs (as such terms are defined in the applicable and corresponding Option Grant Agreement(s) or the ESAR Plan, as applicable), granted to the Executive as at the effective date of such Change in Control (as defined under such plan documents) shall become vested and payable, as applicable, in accordance with the terms of the respective Option Plan or ESAR Plan (as applicable), and corresponding Grant Agreement(s); and

 

  (ii) Performance Options and Performance SARs (as such terms are defined in the applicable and respective Option Grant Agreement(s) or the ESAR Plan, as applicable) granted to the Executive as at the effective date of such Change in Control (as defined under such plan documents) shall become vested and payable, as applicable, in accordance with the terms of the respective Option Plan or ESAR Plan (as applicable), and corresponding Grant Agreement(s).

All Options and SARs which are vested as of the effective date of the Change in Control may be exercised for the lesser of their term (as defined in the Option Plan or SAR Plan, or corresponding Grant Agreement(s), as applicable) or 24 months following the Date of Termination.

 

  (h)

Insurance Benefits . The Corporation shall continue to provide the Executive with the same level of life, disability, accident, dental and health insurance benefits the

 

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  Executive was receiving or entitled to receive from the Corporation immediately prior to the Date of Termination until the end of the Severance Period; provided, however, that if for any reason such insurance benefit is not provided to the end of the Severance Period, a lump sum payment equal to the present value of the cost to the Corporation of providing such insurance shall be paid to the Executive. The contributions or premiums required to be paid by the Executive under such programs shall be payable by the Executive to the Corporation or to the insurer, as applicable, on the same basis as if the Executive continued to be employed during the Severance Period.

 

  (i) Vacation . The Corporation shall pay the Executive, in cash, in a lump sum, no later than the Payment Date, an amount equal to all accrued but unused vacation determined as of the Date of Termination. The amount of such payment shall be determined based upon the Executive’s Severance Salary Rate. In no event shall the amount of vacation time to which the Executive is entitled be less than the amount to which he would have been entitled under the vacation policy in effect as of the Change in Control.

 

  (j) Career Counselling . At the Executive’s request, the Corporation shall provide the Executive with career counselling services at a maximum cost to the Corporation of $15,000 per annum. Such services shall be provided until the Executive obtains subsequent employment or establishes his own business activity or to the end of the Severance Period, whichever is earliest. The Executive shall be entitled to obtain such services from the recognized professional career counselling firm of his choice in the major metropolitan area in or nearest to where he resides at the time he begins to use such services. In order to ensure the provision of such services, the Corporation and the Executive shall enter into a contract with the career counselling services firm, pursuant to which such firm shall provide the Executive with the career counselling services required herein.

 

  (k) Annual Allowance . The Corporation shall pay to the Executive no later than the Payment Date an amount equivalent to two times the annual allowance to which he is entitled as of the date of the Notice of Termination.

 

  (l) Financial Counselling . The Corporation shall, during the Severance Period, continue to provide the Executive with the same financial counselling benefits as those to which he was entitled as of the Change in Control. Such services shall be provided throughout the Severance Period, including the preparation of his tax return(s) for himself for the taxation year during which the Severance Period ends. To ensure the provision of such services, the Corporation and the Executive shall, as soon as practicable, enter into a contract with the financial counselling services firm, pursuant to which such firm shall provide the Executive with the financial counselling services required herein.

 

  (m)

Executive Medical . The Corporation shall continue to provide the Executive with the same executive physical examination benefits as those to which he was entitled as of the Change in Control. Such benefits shall be provided for the

 

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  duration of the Severance Period. In order to ensure the provision of such benefits, the Corporation and the Executive shall, as soon as practicable, enter into a contract with a medical services firm, pursuant to which such firm shall provide the Executive with the executive physical examination services required herein.

 

  (n) Professional Membership Fees . To the extent not already paid to the Executive under Section 5.0(k), the Corporation shall pay the Executive, in cash, in a lump sum, no later than the Payment Date, an after-tax amount equal to the present value of the cost of membership fees for membership in professional organizations related to his position and duties with the Corporation that he would have incurred throughout the Severance Period that would have been payable or reimbursable by the Corporation under the terms of its policy in effect as of the Change in Control had he continued to be employed during the Severance Period, assuming that the annual cost of such fees was equal to the amount reimbursed or paid by the Corporation for the year preceding the year in which a Notice of Termination is delivered.

 

  (o) Pension Benefits . The Corporation shall pay to the Executive the maximum contribution that the Corporation or a subsidiary thereof would have been required to make on behalf of the Executive under the EnCana USA MPP at the percentage of salary specified therein in respect to the Severance Period based on:

 

  (i) The Executive’s annual base salary if he were fully employed until the end of the 24 th calendar month following the Date of Termination; and

 

  (ii) The lesser of the amount specified in 5.0(d) and 40% of the amount of the annual base salary the Executive would have earned had he continued to be employed until the end of the 24 th calendar month following the Date of Termination.

 

  (p) This payment will be made to the Executive in a lump sum on the Payment Date.

 

(q) Legal Fees and Expenses . The Corporation shall pay the Executive’s legal or professional fees and expenses incurred by him as a result of his termination (including actual legal fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement) up to $100,000. Such fees shall be reimbursed by the Corporation reasonably promptly following receipt of a copy of any invoice from the Executive evidencing the payment by the Executive of such fees. In addition, the Corporation will pay legal fees and expenses incurred by the Executive as a result of his termination that are in excess of $100,000 (including actual legal fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement) if a court or other tribunal finds in favour of the Executive.

 

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(r) Deductions . The Executive agrees that benefits and payments to which he is entitled pursuant to this Agreement are subject to deductions or other source withholdings as may be required by law.

 

(s) Calculations . For purposes of determining the present value of an amount, other than for purposes of Section 5.0(o) above, the interest rate to be used shall be the yield for five year constant maturity Canadian government bonds for the current week taken from the most recent weekly Canadian Debt Strategy published by ScotiaMcLeod Inc. or, if for any reason that report is not available at the relevant time, the most recent weekly report published by another recognized Canadian publisher of a report of similar standing chosen by the Corporation. Calculations of pension amounts payable under this Agreement shall be subject to verification by the Corporation’s actuarial consultants.

 

(t) No Mitigation . The Executive shall not be required to mitigate the amount of any payment provided for in this Section by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided to the Executive by the Corporation referred to in this Section be reduced by any compensation earned by, or benefits paid to, the Executive as the result of employment, whether by another employer or self-employment, or by pension benefits after the Date of Termination, or otherwise, except as specifically provided in this Section

 

6.0 Entire Agreement

 

  6.1 This Agreement constitutes the entire agreement between the Parties hereto concerning change in control benefits and obligations and supersedes all prior agreements or understandings. There are no representations or warranties, express or implied, or any conditions or collateral or implied agreements which apply to or govern benefits or obligations relating to a change in control of the Corporation between the Parties other than as are expressly set forth or referred to herein. For greater certainty, all change in control agreements or contracts in existence prior to the date hereof are terminated and replaced by this Agreement. This Agreement cannot be amended except by a written agreement executed by the Parties hereto.

 

7.0 Successors; Binding Agreement

 

  7.1

Assumption by Successors . The Corporation will require any successor corporation (whether direct or indirect, and whether by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Corporation to expressly assume and to agree to perform this Agreement in the same manner and to the same extent as the Corporation, as if no such succession had taken place, and to the extent that the Corporation has not already satisfied an obligation hereunder. Failure of the Corporation to obtain such assumption and agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Executive to compensation from the Corporation in the same amount and on the same terms as the Executive would be entitled to if the Executive were to terminate the Executive’s

 

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  employment for Good Reason following a Change in Control of the Corporation, except that for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, “Corporation” shall mean the Corporation as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.

 

  7.2 Enforceability by Beneficiaries . This Agreement shall enure to the benefit of and be enforceable by the Parties hereto and their respective heirs, legal or personal representatives, successors and assigns and if the Executive should die while any amount would still be payable to him hereunder if he had continued to live, all such amounts shall be paid in accordance with the terms of this Agreement to the Executive’s devisee, legatee or other designee or, if there is no such designee, to his estate.

 

8.0 Notices

 

  8.1 Notices . For the purpose of this Agreement, notices and all other communications provided for in this Agreement shall be in writing, shall be deemed to have been duly given when delivered or sent by facsimile, charges prepaid and confirmed in writing or on the third business day after having been sent by registered mail, postage prepaid, as follows:

If to the Corporation:

Encana Corporation

500 Centre Street S.E.

Calgary, Alberta

T2P 2S5

Attention: Executive Vice-President and General Counsel

Facsimile: (403) 290-8499

Email: General.Counsel@encana.com

If to the Executive:

XXXX XXXX

XXXX XX XXXX

Attention: David Hill, Executive Vice-President

Each of the Corporation and the Executive may from time to time change its address for notice by notice to the other Party given in the manner aforesaid.

 

9.0 Subject to Clawback Policy

 

9.1

Notwithstanding any other provision herein, the Executive acknowledges and agrees that entitlements to any and all incentive compensation hereunder (including any portion thereof) and/or any payments in respect thereof shall be expressly subject to the terms and conditions of the Corporation’s “Incentive Compensation Clawback Policy” (the

 

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  “Policy”), attached hereto as Schedule “A”, as same may be amended by the Corporation from time to time. Without limiting the generality of the foregoing, the provisions of this Agreement shall at all times be interpreted so as to be expressly subject to the provisions of the Policy.

 

10.0 409A Compliance

 

10.1 This Agreement and any payment, distribution or other benefit hereunder shall comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), or an exemption or exclusion therefrom, as well as any related regulations or other guidance promulgated by the U.S. Department of the Treasury or the Internal Revenue Service (“Section 409A”), to the extent applicable, and shall in all respects be administered in accordance with Section 409A; provided, that for the avoidance of doubt, this provision shall not be construed to require a gross-up payment in respect of any taxes, interest or penalties imposed on Executive as a result of Section 409A.

 

10.2 For purposes of this Agreement, Executive shall not be deemed to have terminated employment unless and until a separation from service (within the meaning of Treasury Regulation Section 1.409A-1(h)) has occurred. If Executive is a “specified employee” under Section 409A, no payment, distribution or other benefit provided pursuant to this Agreement constituting a deferral of compensation (within the meaning of Treasury Regulation Section 1.409A-1(b)) that is required to be delayed to comply with Code Section 409A(a)(2)(B)(i) shall be provided before the date that is six months after the date of such separation from service (or, if earlier than the end of such six-month period, the date of death of the specified employee). Any payment, distribution or other benefit that is delayed pursuant to the prior sentence shall be paid on the first business day following the six-month anniversary of the separation from service.

 

9.3 In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement. Any provision that would cause this Agreement or a payment, distribution or other benefit hereunder to fail to satisfy the requirements of Section 409A shall have no force or effect and, to the extent an amendment would be effective for purposes of Section 409A, the parties agree that this Agreement shall be amended to comply with Section 409A. Such amendment shall be retroactive to the extent permitted by Section 409A. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.

 

10.4

All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement shall be for expenses incurred during the time period specified in this Agreement, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made not later than the last day of Executive’s taxable year following the taxable year in which such expense was incurred, and (iv) the right to reimbursement or in-kind benefits is not subject to

 

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  liquidation or exchange for another benefit. Notwithstanding anything in this Agreement to the contrary, with respect to payment of legal fees and expenses pursuant to Section 5(p) hereof, if the court or other tribunal has not yet found in favour or against the Executive prior to the last day of Executive’s taxable year following the taxable year in which such fees and expenses were incurred, such fees and expenses will be paid on the last day of such taxable year following the taxable year in which such fees and expenses were incurred. If such court or other tribunal does not ultimately find in favour of the Executive, the Executive will repay to the Corporation as soon as practicable, but in no event more than 90 days after the court or other tribunal renders its ruling, any amounts paid or reimbursed pursuant to the prior sentence that would not have been paid or reimbursed pursuant to Section 5(p) but for the prior sentence.

 

11.0 Miscellaneous

 

11.1 Amendment and Waiver . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing. No waiver by either Party hereto of, or in compliance with, any condition or provision of this Agreement to be performed by such other Party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.

 

11.2 Governing Law . This Agreement shall be construed and enforced in accordance with, and the rights of the Parties shall be governed by, the laws of the Province of Alberta.

 

11.3 Currency . All amounts in this Agreement are stated in and shall be paid in Canadian currency.

 

11.4 Gender and Number . Unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing one gender include the other gender.

 

12.0 Validity

 

12.1 The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

 

13.0 Counterparts

 

13.1 This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same Agreement.

 

14.0 Headings

 

14.1 The division of this Agreement into sections, subsections and clauses, or other portions hereof and the insertion of headings or subheadings, are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.

 

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15.0 Time of the Essence

 

15.1 Time shall be of the essence in this Agreement.

IN WITNESS WHEREOF , the Parties hereto have caused this Agreement to be duly executed effective as of the date first above written.

 

ENCANA CORPORATION
Per:   /s/ Douglas J. Suttles
 

 

  Douglas J. Suttles
  President & Chief Executive Officer
Per:   /s/ David G. Hill
 

 

  David Hill
 

Executive Vice-President,

Exploration and Business

Development

  /s/ Della Gabel
 

 

  Witness

 

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SCHEDULE “A”

INCENTIVE COMPENSATION CLAWBACK POLICY:

By resolution of the Board of Directors (the “ Board ”) of Encana Corporation (“ Encana ” or the “ Corporation ”), this Policy is effective as of this 22 nd day of October, 2012 (the “ Effective Date ”).

This Policy applies to the President & Chief Executive Officer and each Executive-Vice President of the Corporation and any individual who serves in either such capacity on or following the Effective Date (collectively, the “ Executive ”). References in this Policy to the “Corporation” include, where applicable, any affiliate thereof.

This Policy has been adopted to enhance the Corporation’s alignment with best practices in respect of risk management and executive compensation and shall be, at all times, subject to and interpreted in a manner consistent with applicable laws or the rules of any applicable stock exchange (collectively, “ Applicable Rules ”).

This Policy applies to “ Incentive-Based Compensation ” which, for the purposes of this Policy, means compensation relating to the achievement of performance goals or similar conditions, excluding salary, perquisites, benefits and pension entitlements, and including, without limitation, any award or grant of or any eligibility, entitlement or gain of, an Executive under the Corporation’s: (i) High Performance Results Plan, or any other short-term incentive plan; or (ii) Long-Term Incentive (“ LTI ”) program including, without limitation, Employee Stock Option Plan, Employee Stock Appreciation Rights Plan, Performance Share Unit Plan, Restricted Share Unit Plan and Deferred Share Unit Plan, as each may be amended from time to time (including any performance-based grants under any such plans). For greater clarity, this Policy shall not apply to any Incentive-Based Compensation awarded, granted or paid to an Executive prior to the Effective Date.

Where:

 

    the Corporation is required to prepare an accounting restatement due to its material non-compliance with any financial reporting requirement under applicable securities laws (the “ Restatement ”), (the date upon which the Corporation is required to prepare such Restatement is hereinafter the “ Restatement Date ”);

 

    the Executive received Incentive-Based Compensation referable to the financial years subject to the Restatement in excess of what the Executive would have been paid under the Restatement (the “ Overcompensation Amount ”); and

 

    the Executive engaged in gross negligence, intentional misconduct or fraud which caused or significantly contributed to the Corporation’s material non-compliance with applicable securities laws which resulted in the requirement for the Restatement;

the Board shall be entitled:

 

    where and to the extent the Overcompensation Amount has been previously paid, transferred or otherwise made available to the Executive, to require the Executive, by written demand, to reimburse the Corporation for the Overcompensation Amount; and

 

   

where all or a portion of the Overcompensation Amount has not been paid, transferred or otherwise made available to the Executive, the right of the Executive to be so paid or have such benefit transferred or otherwise made available to him or her shall, to the extent required to reimburse the Corporation for such Overcompensation Amount, immediately terminate and be


 

forfeited by the Executive and where required, cancelled by the Corporation to such extent and upon such date as may be specified by the Board; and

 

    to the extent the Overcompensation Amount is not immediately recovered upon demand from the Executive, whether via direct reimbursement, forfeiture and/or cancellation, to require a sufficient quantity or value of any compensation owing by the Corporation to the Executive including, without limitation, any unvested or unexercised awards under the LTIs (the “ Outstanding LTIs ”), be immediately withheld and/or irrevocably cancelled by the Corporation to compensate for (or set off the value of same against) the Overcompensation Amount or any unrecovered portion thereof, and to bring any other actions against the Executive which the Board may deem necessary to recover the Overcompensation Amount.

The period of time during which the Corporation shall be entitled to seek recovery of the Overcompensation Amount from the Executive shall be three (3) years from the Restatement Date. Recoupment of Overcompensation Amounts under this Policy shall be initiated by the Corporation at the request of the Board, and all amounts recoverable or payable hereunder shall be paid to the Corporation or as directed by the Board.

If Applicable Rules require the Corporation to adopt a policy or provisions relating to the recoupment or recovery of incentive-based or other compensation based on restated financial statements which are inconsistent with or materially differ from this Policy and the Board adopts such policy or provisions to comply with Applicable Rules (the “ New Policy ”), such New Policy shall replace and supersede this Policy and shall apply to Incentive-Based Compensation granted or awarded to the Executive following the effective date of the New Policy. Subject to Applicable Rules, this Policy shall continue to apply to Incentive-Based Compensation granted or awarded to the Executive prior to the effective date of the New Policy. This Policy may be terminated at any time by the Board.

 

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Exhibit 10.23

CHANGE IN CONTROL AGREEMENT

THIS AGREEMENT made effective as of the 10 th day of March 2014

BETWEEN

ENCANA CORPORATION , a body corporate registered in the Province of Alberta (the “Corporation”)

OF THE FIRST PART

-and-

MICHAEL WILLIAMS , of the City of Calgary, in the Province of Alberta (the “Executive”)

OF THE SECOND PART

WHEREAS the Board of Directors of the Corporation (the “Board”) recognizes that the establishment and maintenance of a sound and vital management team is essential to the protection and enhancement of the best interests of the Corporation and its shareholders;

AND WHEREAS the Board further recognizes that an employee is most vulnerable at the point of termination of employment;

AND WHEREAS the Board further recognizes that, as is the case with many corporations, the possibility of a Change in Control of the Corporation could arise and create a climate of uncertainty among the Corporation’s senior executives, and could result in the distraction of such senior executives to the detriment of the Corporation and its shareholders;

AND WHEREAS the Board believes it is important, should the Corporation or its shareholders receive a proposal for transfer of control of the Corporation, that the Executive be able to assess and advise the Board whether such proposal would be in the best interests of the Corporation and its shareholders and to take such other action regarding such proposal as the Board might determine to be appropriate, without being distracted by the uncertainties of his own situation;

AND WHEREAS , in order to induce the Executive to remain in the employ of the Corporation and to assure the Corporation of his continued and undivided attention and services, notwithstanding any events which might result in a Change in Control of the Corporation, this Agreement, the principal terms of which has been previously approved by the Board, records certain benefits extended to the Executive.

NOW THEREFORE , in consideration of the covenants and agreements hereinafter set forth and for other good and valuable consideration (the receipt and sufficiency whereof are hereby acknowledged by each of the Parties), the Parties hereby mutually covenant and agree as follows:


1.0 Term of Agreement

 

1.1 Term . This Agreement shall commence on the date hereof and shall continue in effect through December 31, 2014; provided however that commencing on January 1, 2015 and each January 1 thereafter, the term of this Agreement shall automatically be extended for one additional year during the Executive’s employment until such time as there shall occur a Change in Control of the Corporation and for a period of three years from the Effective Date of such Change in Control (the “Term”); provided, however, that if payment of compensation and benefits has begun under this Agreement, the payment of such compensation and benefits shall continue beyond the end of the Term in accordance with the applicable provisions of this Agreement.

 

2.0 Change in Control

 

2.1 Compensation and Benefits not until. The Parties acknowledge and agree that no compensation or benefits shall be payable to the Executive hereunder unless and until there shall have occurred both: (i) a Change in Control of the Corporation; and (ii) the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason, in accordance with the terms of this Agreement.

 

2.2 “Change in Control”. For purposes of this Agreement, a “Change in Control” of the Corporation shall be deemed to have occurred if:

 

  (a) any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity, or any persons acting jointly or in concert with the foregoing, is or becomes the beneficial owner directly or indirectly of, securities of the Corporation representing more than 30% of the combined voting power of the Corporation’s then outstanding securities entitled to vote in the election of the directors of the Corporation (the “Voting Shares”);

 

  (b) the Corporation shall have disposed of: (i) all or substantially all of its assets, such that shareholder approval was required under the Canada Business Corporations Act; or (ii) assets in any 12 month period representing 50% or more of the total assets of the Corporation, determined as of the date of the audited financial statements of the Corporation then most recently published;

 

  (c) pursuant to a single election or appointment or a series of elections or appointments over any period from and after the date of this Agreement: (i) those individuals who at the date of the Agreement constituted the Board, together with (ii) any new or additional director or directors whose nomination for election by the Corporation’s shareholders, or whose appointment to the Board by the Board, has been approved by at least 75% of the votes cast by all of the directors then still in office, who either were directors at the date of this Agreement or whose appointment or nomination for election was previously so approved, cease for any reason to constitute a majority of the Board; or

 

Page 2


  (d) the Board, by resolution duly adopted by the affirmative vote of a simple majority of the votes cast by the Board, determines that, for purposes of this Agreement, a Change in Control of the Corporation has occurred.

 

2.3 Employee Benefit Plans, etc. For the purposes of determining the percentage portion or fraction of Voting Shares under Section 2.2(a), securities beneficially owned or controlled or directed by an employee plan or related trust sponsored or maintained by the Corporation or its subsidiaries shall not be taken into account in the determination of the numerator but shall be taken into account in the determination of the denominator.

 

2.4 When Compensation and Benefits Payable . Upon the occurrence of both: (i) a Change in Control of the Corporation; and (ii) the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason, as contemplated by the terms of this Agreement, the provisions of Section 5.0 hereof in respect of the compensation and benefits payable, as applicable, shall apply.

 

2.5 Definitions and Interpretation . For purposes of this Section 2.0:

 

  (a) the term “acting jointly or in concert” shall be interpreted in accordance with Section 159 of the Securities Act (Alberta), as amended; and

 

  (b) the term “beneficial ownership” shall be interpreted in accordance with Sections 5 and 6 of the Securities Act (Alberta) and “beneficial owner” shall have a corresponding meaning, except that for purposes of this Agreement, options and convertible securities granted by the Corporation to employees, officers or directors shall not be included in determining beneficial ownership or beneficial owner.

 

3.0 Definitions

For purposes of this Agreement and for purposes of determining such compensation and benefits as may be payable hereunder following the occurrence of a Change in Control of the Corporation, the following definitions shall apply:

 

3.1 Affiliate ”. “Affiliate” shall be interpreted in accordance with the definition of such term as contained in Section 2 of the Canada Business Corporations Act (Canada).

 

3.2 Cause ”. “Cause” means:

 

  (a)

the substantial or material breach by the Executive of any policy or practices of the Corporation or the willful and continued failure by the Executive to substantially perform his duties with the Corporation or an Affiliate after a written demand for substantial performance is delivered to the Executive by the Board, which demand specifically identifies the manner in which the Board believes that the Executive has not substantially performed his duties, and the Executive fails to correct such failure to perform his duties within 30 days after such written demand is delivered to him; provided, however, that if such failure occurs after

 

Page 3


  the happening of circumstances which would entitle the Executive to terminate for Good Reason, the same shall not constitute the basis for “Cause”; or

 

  (b) the willful engaging by the Executive in conduct which is dishonest or demonstrably and materially injurious to the Corporation or an Affiliate, monetarily or otherwise. For purposes of this definition, any action by the Executive or any failure on his part to act, shall be deemed “willful” when done (or omitted to be done) by the Executive not in good faith and if when done (or omitted to be done) the Executive had or ought to have had the reasonable belief that his action or omission would not be in the best interests of the Corporation or an Affiliate.

Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the Board, finding that in the good faith opinion of the Board, the Executive was guilty of conduct set forth in clause (a) or (b) of this Section and specifying the particulars thereof.

 

3.3 Effective Date ”. “Effective Date” means the date of the occurrence of the specified event constituting a Change in Control of the Corporation.

 

3.4 Good Reason ”. “Good Reason” means any of the following, unless the Executive shall have given his express written consent thereto:

 

  (a) Changed Duties or Status . The assignment to the Executive of any duties inconsistent with his status as a senior executive of the Corporation or a material alteration in the nature or status of his responsibilities or duties or reporting relationship from those in effect immediately prior to a Change in Control of the Corporation;

 

  (b) Reduced Salary . A reduction by the Corporation in the Executive’s annual base salary as in effect on the date hereof (or as the same may be increased from time to time);

 

  (c) Relocation . The Corporation’s requiring the Executive to be based anywhere other than where the Executive is based at the time of a Change in Control of the Corporation, except for: (i) required travel on the Corporation’s business to an extent substantially consistent with the Executive’s business travel obligations in the ordinary course of business immediately prior to the Change in Control of the Corporation; or (ii) where the Executive is relocated or repatriated by the Corporation, such relocation as may be required by applicable law or performed in accordance with an agreed-upon assignment with the Corporation or an Affiliate;

 

  (d)

Incentive Compensation Plans . Changes to the terms of the Corporation’s High Performance Results Plan (the “HPR Plan”) or any replacement short-term incentive plan in which the Executive is participating as of the Change in Control (the “Annual Incentive Plans”), the Corporation’s Employee Stock Option Plan

 

Page 4


  (“Option Plan”), Performance Share Unit Plan for Employees of Encana Corporation (“PSU Plan”), or Restricted Share Unit Plan for Employees of Encana Corporation (“RSU Plan”) or to such other long-term incentive plans in which the Executive may be participating prior to the Change in Control of the Corporation, which would have the effect of materially reducing the Executive’s aggregate potential incentive compensation, except in circumstances where the Corporation alters or reduces the opportunity for potential incentive compensation available under such plans for all senior executives of the Corporation,

 

  (e) Pension Plan. Benefit Plans and Perquisites . The failure by the Corporation to continue to provide the Executive:

 

  (i) with pension and related benefits substantially similar as those enjoyed by him under the Encana Corporation Canadian Pension Plan and the Encana Corporation Canadian Defined Contribution Savings Plan (collectively, the “Encana Pension Plans”), except for across-the-board reductions in, or amendments to, such benefits similarly affecting all senior executives of the Corporation and relating to service or employment after the date upon which such reduction or amendment is announced; or

 

  (ii) with benefits substantially similar to those enjoyed by him under any other retirement arrangement established for the Executive, except for across-the-board reductions in, or amendments to, such benefits similarly affecting all senior executives of the Corporation and relating to service or employment after the date on which such reduction or amendment is announced; or

 

  (iii) with benefits at least substantially similar to any of the Corporation’s life insurance, medical, health and accident, disability or investment plans in which the Executive may participate at the date hereof or subsequently, or the taking of any action by the Corporation that would directly or indirectly materially reduce any such benefits or deprive the Executive of any material perquisite enjoyed by him, except for across-the-board reductions in such benefits or comparable benefits similarly affecting all senior executives of the Corporation; or

 

  (iv) with the number of paid vacation days to which the Executive is entitled in accordance with the normal vacation policy in effect in respect of the Executive as of the date hereof or subsequently;

 

(f) Deferred Compensation . The failure by the Corporation to pay the Executive any portion of his then current compensation without his consent except pursuant to an across-the-board compensation deferral similarly affecting all senior executives of the Corporation or the failure by the Corporation to pay to the Executive any installment of deferred compensation at the time such installment is due under any deferred compensation program of the Corporation;

 

Page 5


(g) No Assumption by Successor . The failure of the Corporation to obtain a satisfactory agreement from a successor to assume and agree to perform this Agreement as contemplated by Section 7.0 hereof, or if the business or undertaking in connection with which the Executive’s services are principally performed is sold at any time after a Change in Control and the Executive’s employment is transferred as a result, the purchaser of such business shall fail to agree to provide the Executive with the same or a comparable position, duties, compensation and benefits, as described in paragraphs (d) and (e) above, as provided to the Executive by the Corporation immediately prior to the Change in Control;

 

(h) Disposition of “All or Substantially All” . The disposition by the Corporation of all or substantially all of the assets of the Corporation.

 

4.0 Notice of Termination; Date of Termination

 

4.1 Notice of Termination . Any termination of the Executive’s employment either by the Executive for Good Reason or by the Corporation for Cause or without Cause, as applicable, shall be communicated by written Notice of Termination to the Executive or to the Corporation, as the case may be, in accordance with Section 8.0 hereof.

 

4.2 Content of Notice of Termination . The “Notice of Termination” shall mean a notice which shall indicate the specific termination provision in this Agreement relied upon by the Executive or the Corporation, as the case may be, and shall set forth in reasonable detail the facts and circumstances claimed as the basis for the Executive’s terminating his employment or the Corporation’s terminating the Executive’s employment, as the case may be. The Executive’s failure to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of “Good Reason” shall not result in a waiver of his rights hereunder or preclude him from subsequently asserting such fact or circumstance in enforcing his rights hereunder.

 

4.3 Date of Termination . The “Date of Termination” shall mean if the Executive’s employment is terminated by the Corporation without Cause or by the Executive for Good Reason, the date specified in the Notice of Termination (which, in the case of termination by the Executive for Good Reason, shall be not less than 15 days nor more than 60 days from the date such Notice of Termination is given).

 

4.4 Notice Required . For the purposes of this Section 4.0, any purported termination of the Executive’s employment which is not effected pursuant to a Notice of Termination satisfying the requirements of Section 4.2 hereof shall not be effective.

 

5.0 Compensation and Benefits following Change in Control

Following both: (i) a Change in Control of the Corporation; and (ii) the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason, in accordance with the terms of this Agreement, the Corporation shall cause to be provided to the Executive in exchange for the Executive’s execution and return to the Corporation of a General Release on such date and in such form as may be provided to

 

Page 6


the Executive by the Corporation, acting reasonably, the following benefits in full satisfaction of all of the Corporation’s obligations to the Executive:

 

  (a) Accrued Compensation and Payment Date . The Corporation shall pay the Executive, in a lump sum, not later than the 30th business day following the Date of Termination (the “Payment Date”), his full base salary through the Date of Termination at the rate in effect at the time the Notice of Termination is given.

 

  (b) Severance Payment, Severance Period and Severance Salary Rate . In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination, the Corporation shall pay to the Executive, on account of both compensation in lieu of notice and loss of office, not later than the Payment Date, a lump sum severance payment (the “Severance Payment”) equal to the amount of base salary the Executive would have earned had he continued to be employed until the end of the 24 th full calendar month following the Date of Termination (the “Severance Period”) assuming that the Executive’s rate of monthly base salary during the Severance Period would be equal to the highest monthly rate of base salary which was payable to him by the Corporation or an Affiliate during the 24th month period immediately preceding the Date of Termination (the “Severance Salary Rate”).

 

  (c) Investment Plan . The Corporation shall pay the Executive the maximum contribution the Corporation would have been required to make on behalf of the Executive to the Corporation’s Canadian Investment Plan in respect of the Severance Period if the Executive had remained fully employed and elected to have the Corporation match his Investment Plan contribution, determined as if the Executive continued to make contributions to the Corporation’s Investment Plan at a rate equal to the contributions actually made by him under the Investment Plan in the last complete calendar year immediately preceding the Date of Termination. This payment will be made in cash, in a lump sum, on the Payment Date.

 

  (d)

Annual Incentive Plans . The Corporation shall pay to the Executive, in cash, in a lump sum, no later than the Payment Date, an amount in lieu of his participation in the Annual Incentive Plans in which he is participating as of the Notice of Termination, such payment to be equal to: (i) two times the average of the annual amounts paid to the Executive under the Annual Incentive Plans (excluding for greater certainty any special awards thereunder) in respect of the three complete fiscal years of the Corporation immediately preceding the Date of Termination, and (ii) (in cases where the Date of Termination is not the end of a fiscal year), a pro rata payment for the number of days which have elapsed in the fiscal year in which the Date of Termination occurs, based on the same calculation described above. For the purposes of this Section 5.0(d), where the Date of Termination is prior to the completion of three complete fiscal years of amounts payable to the Executive under the Annual Incentive Plans, the average of amounts paid to the Executive under such Plans shall be determined based the average of amounts

 

Page 7


  paid to the Executive under such Plans for each complete fiscal year of the Corporation immediately preceding the Date of Termination.

 

  (e) Performance Share Unit Plan . In respect of the Executive’s entitlements under the Corporation’s PSU Plan, Performance Share Units (“PSUs”) granted to the Executive as at the effective date of such Change in Control (as defined under the PSU Plan) shall become vested and paid as applicable and in accordance with the terms of the PSU Plan and corresponding PSU Grant Agreement(s).

 

  (f) Restricted Share Unit Plan . In respect of the Executive’s entitlements under the Corporation’s RSU Plan, Restricted Share Units (“RSUs”) granted to the Executive as at the effective date of such Change in Control (as defined under the RSU Plan) shall become vested and payable as applicable and in accordance with the terms of the RSU Plan and corresponding RSU Grant Agreement(s).

 

  (g) Option Plan and Employee Stock Appreciation Rights Plan . In respect of the Executive’s entitlements under the Corporation’s Option Plan or Employee Stock Appreciation Rights Plan (“ESAR Plan”), as applicable, all Stock Options (“Options”) and Stock Appreciation Rights (“SARs”) held by the Executive as at the Notice of Termination shall be impacted as follows:

 

  (i) All Time-Based Options or Time-Based SARs (as such terms are defined in the applicable and corresponding Option Grant Agreement(s) or the ESAR Plan, as applicable), granted to the Executive as at the effective date of such Change in Control (as defined under such plan documents) shall become vested and payable, as applicable, in accordance with the terms of the respective Option Plan or ESAR Plan (as applicable), and corresponding Grant Agreement(s); and

 

  (ii) Performance Options and Performance SARs (as such terms are defined in the applicable and respective Option Grant Agreement(s) or the ESAR Plan, as applicable) granted to the Executive as at the effective date of such Change in Control (as defined under such plan documents) shall become vested and payable, as applicable, in accordance with the terms of the respective Option Plan or ESAR Plan (as applicable), and corresponding Grant Agreement(s).

All Options and SARs which are vested as of the effective date of the Change in Control may be exercised for the lesser of their term (as defined in the Option Plan or SAR Plan, or corresponding Grant Agreement(s), as applicable) or 24 months following the Date of Termination.

 

  (h)

Insurance Benefits . The Corporation shall continue to provide the Executive with the same level of life, disability, accident, dental and health insurance benefits the Executive was receiving or entitled to receive from the Corporation immediately prior to the Date of Termination until the end of the Severance Period; provided, however, that if for any reason such insurance benefit is not provided to the end of

 

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  the Severance Period, a lump sum payment equal to the present value of the cost to the Corporation of providing such insurance shall be paid to the Executive. The contributions or premiums required to be paid by the Executive under such programs shall be payable by the Executive to the Corporation or to the insurer, as applicable, on the same basis as if the Executive continued to be employed during the Severance Period.

 

  (i) Vacation . The Corporation shall pay the Executive, in cash, in a lump sum, no later than the Payment Date, an amount equal to all accrued but unused vacation determined as of the Date of Termination. The amount of such payment shall be determined based upon the Executive’s Severance Salary Rate. In no event shall the amount of vacation time to which the Executive is entitled be less than the amount to which he would have been entitled under the vacation policy in effect as of the Change in Control.

 

  (j) Career Counselling . At the Executive’s request, the Corporation shall provide the Executive with career counselling services at a maximum cost to the Corporation of $15,000 per annum. Such services shall be provided until the Executive obtains subsequent employment or establishes his own business activity or to the end of the Severance Period, whichever is earliest. The Executive shall be entitled to obtain such services from the recognized professional career counselling firm of his choice in the major metropolitan area in or nearest to where he resides at the time he begins to use such services. In order to ensure the provision of such services, the Corporation and the Executive shall enter into a contract with the career counselling services firm, pursuant to which such firm shall provide the Executive with the career counselling services required herein.

 

  (k) Annual Allowance . The Corporation shall pay to the Executive no later than the Payment Date an amount equivalent to two times the annual allowance to which he is entitled as of the date of the Notice of Termination.

 

  (l) Financial Counselling . The Corporation shall, during the Severance Period, continue to provide the Executive with the same financial counselling benefits as those to which he was entitled as of the Change in Control. Such services shall be provided throughout the Severance Period, including the preparation of his tax return(s) for himself for the taxation year during which the Severance Period ends. To ensure the provision of such services, the Corporation and the Executive shall, as soon as practicable, enter into a contract with the financial counselling services firm, pursuant to which such firm shall provide the Executive with the financial counselling services required herein.

 

  (m)

Executive Medical . The Corporation shall continue to provide the Executive with the same executive physical examination benefits as those to which he was entitled as of the Change in Control. Such benefits shall be provided for the duration of the Severance Period. In order to ensure the provision of such benefits, the Corporation and the Executive shall, as soon as practicable, enter into a contract with a medical services firm, pursuant to which such firm shall

 

Page 9


  provide the Executive with the executive physical examination services required herein.

 

  (n) Professional Membership Fees . To the extent not already paid to the Executive under Section 5.0(k), the Corporation shall pay the Executive, in cash, in a lump sum, no later than the Payment Date, an after-tax amount equal to the present value of the cost of membership fees for membership in professional organizations related to his position and duties with the Corporation that he would have incurred throughout the Severance Period that would have been payable or reimbursable by the Corporation under the terms of its policy in effect as of the Change in Control had he continued to be employed during the Severance Period, assuming that the annual cost of such fees was equal to the amount reimbursed or paid by the Corporation for the year preceding the year in which a Notice of Termination is delivered.

 

  (o) Pension Benefits . In addition to the benefits which the Executive is entitled under the Encana Pension Plans, or any retirement arrangement established by the Corporation for the Executive with his consent:

 

  (i) The Executive will be credited with pensionable contributions in the Encana Corporation Canadian Defined Contribution Savings Plan (the “Supplemental Pension Plan”), as may be amended from time to time or any successor plan thereto, for each of the 24 months included in the Severance Period;

 

  (ii) For purposes of Section 5.0(o)(i), the Executive’s pensionable earnings shall be calculated based on the lesser of: (i) 40% of the Executive’s Severance Salary Rate; and (ii) the average of the annual amounts paid to the Executive under the Annual Incentive Plans (excluding, for greater certainty, any special awards) in respect of the three complete fiscal years of the Corporation immediately preceding the Date of Termination, or such annual average amount as calculated in accordance with Section 5.0(d) hereof;

 

  (iii) On or prior to the 15 th business day following the Date of Termination, the Executive will receive a lump sum cash payment of his accrued entitlements under the Supplemental Pension Plan, payable on the Payment Date, such amount to be determined: (A) without any gross up or other adjustment for income tax and not taking into account the nonregistered status of the Supplemental Pension Plan, and (B) assuming the Executive’s accrued entitlement under the Supplemental Pension Plan is fully vested.

 

(p)

Legal Fees and Expenses. The Corporation shall pay the Executive’s legal or professional fees and expenses incurred by him as a result of his termination (including actual legal fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this

 

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  Agreement) up to $100,000. Such fees shall be reimbursed by the Corporation reasonably promptly following receipt of a copy of any invoice from the Executive evidencing the payment by the Executive of such fees. In addition, the Corporation will pay legal fees and expenses incurred by the Executive as a result of his termination that are in excess of $100,000 (including actual legal fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement) if a court or other tribunal finds in favour of the Executive.

 

(q) Deductions . The Executive agrees that benefits and payments to which he is entitled pursuant to this Agreement are subject to deductions or other source withholdings as may be required by law.

 

(r) Calculations . For purposes of determining the present value of an amount, other than for purposes of Section 5.0(o) above, the interest rate to be used shall be the yield for five year constant maturity Canadian government bonds for the current week taken from the most recent weekly Canadian Debt Strategy published by ScotiaMcLeod Inc. or, if for any reason that report is not available at the relevant time, the most recent weekly report published by another recognized Canadian publisher of a report of similar standing chosen by the Corporation. Calculations of pension amounts payable under this Agreement shall be subject to verification by the Corporation’s actuarial consultants.

 

(s) No Mitigation . The Executive shall not be required to mitigate the amount of any payment provided for in this Section by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided to the Executive by the Corporation referred to in this Section be reduced by any compensation earned by, or benefits paid to, the Executive as the result of employment, whether by another employer or self-employment, or by pension benefits after the Date of Termination, or otherwise, except as specifically provided in this Section

 

6.0 Entire Agreement

 

  6.1 This Agreement constitutes the entire agreement between the Parties hereto concerning change in control benefits and obligations and supersedes all prior agreements or understandings. There are no representations or warranties, express or implied, or any conditions or collateral or implied agreements which apply to or govern benefits or obligations relating to a change in control of the Corporation between the Parties other than as are expressly set forth or referred to herein. For greater certainty, all change in control agreements or contracts in existence prior to the date hereof are terminated and replaced by this Agreement. This Agreement cannot be amended except by a written agreement executed by the Parties hereto.

 

7.0 Successors; Binding Agreement

 

  7.1

Assumption by Successors . The Corporation will require any successor corporation (whether direct or indirect, and whether by purchase, merger,

 

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  consolidation or otherwise) to all or substantially all of the business and/or assets of the Corporation to expressly assume and to agree to perform this Agreement in the same manner and to the same extent as the Corporation, as if no such succession had taken place, and to the extent that the Corporation has not already satisfied an obligation hereunder. Failure of the Corporation to obtain such assumption and agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Executive to compensation from the Corporation in the same amount and on the same terms as the Executive would be entitled to if the Executive were to terminate the Executive’s employment for Good Reason following a Change in Control of the Corporation, except that for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, “Corporation” shall mean the Corporation as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.

 

  7.2 Enforceability by Beneficiaries . This Agreement shall enure to the benefit of and be enforceable by the Parties hereto and their respective heirs, legal or personal representatives, successors and assigns and if the Executive should die while any amount would still be payable to him hereunder if he had continued to live, all such amounts shall be paid in accordance with the terms of this Agreement to the Executive’s devisee, legatee or other designee or, if there is no such designee, to his estate.

 

8.0 Notices

 

  8.1 Notices . For the purpose of this Agreement, notices and all other communications provided for in this Agreement shall be in writing, shall be deemed to have been duly given when delivered or sent by facsimile, charges prepaid and confirmed in writing or on the third business day after having been sent by registered mail, postage prepaid, as follows:

If to the Corporation:

Encana Corporation

500 Centre Street S.E.

Calgary, Alberta

T2P 2S5

Attention: Executive Vice-President and General Counsel

Facsimile: (403) 645-4617

If to the Executive:

XXXX XXXX

XXXX XXXX XXX XXX

Attention: Michael Williams, Executive Vice-President, Corporate Services

 

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Each of the Corporation and the Executive may from time to time change its address for notice by notice to the other Party given in the manner aforesaid.

 

9.0 Subject to Clawback Policy

 

9.1 Notwithstanding any other provision herein, the Executive acknowledges and agrees that entitlements to any and all incentive compensation hereunder (including any portion thereof) and/or any payments in respect thereof shall be expressly subject to the terms and conditions of the Corporation’s “Incentive Compensation Clawback Policy” (the “Policy”), attached hereto as Schedule “A”, as same may be amended by the Corporation from time to time. Without limiting the generality of the foregoing, the provisions of this Agreement shall at all times be interpreted so as to be expressly subject to the provisions of the Policy.

 

10.0 Tax & 409A Compliance

 

10.1 This Agreement and any payment, distribution or other benefit hereunder shall comply with applicable law including, as applicable, all requirements of the Income Tax Act (Canada) any related regulations or other guidance promulgated by the Canada Revenue Agency, the Internal Revenue Code of 1986, as amended (the “Code”), including, without limitation Section 409A thereof any exemption or exclusion therefrom, as well as any related regulations or other guidance promulgated by the U.S. Department of the Treasury or the Internal Revenue Service (“Section 409A”) and, to the extent applicable, shall in be administered in accordance with Section 409A all respects; provided, that for the avoidance of doubt, this provision shall not be construed to require a gross-up payment in respect of any taxes, interest or penalties imposed on Executive as a result of Section 409A.

 

10.2 For purposes of this Agreement, to the extent Section 409A is applicable, Executive shall not be deemed to have terminated employment unless and until a separation from service (within the meaning of Treasury Regulation Section 1.409A-1(h)) has occurred. If Executive is a “specified employee” under Section 409A, no payment, distribution or other benefit provided pursuant to this Agreement constituting a deferral of compensation (within the meaning of Treasury Regulation Section 1.409A-1(b)) that is required to be delayed to comply with Code Section 409A(a)(2)(B)(i) shall be provided before the date that is six months after the date of such separation from service (or, if earlier than the end of such six-month period, the date of death of the specified employee). Any payment, distribution or other benefit that is delayed pursuant to the prior sentence shall be paid on the first business day following the six-month anniversary of the separation from service.

 

10.3

To the extent Section 409A is applicable, in no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement. Any provision that would cause this Agreement or a payment, distribution or other benefit hereunder to fail to satisfy the requirements of Section 409A shall have no force or effect and, to the extent an amendment would be effective for purposes of Section 409A, the parties agree that this Agreement shall be amended to comply with Section 409A. Such amendment shall be retroactive to the extent permitted by Section 409A.

 

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  Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.

 

10.4 To the extent Section 409A is applicable, all reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement shall be for expenses incurred during the time period specified in this Agreement, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made not later than the last day of Executive’s taxable year following the taxable year in which such expense was incurred, and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. Notwithstanding anything in this Agreement to the contrary, with respect to payment of legal fees and expenses pursuant to Section 5(p) hereof, if the court or other tribunal has not yet found in favour or against the Executive prior to the last day of Executive’s taxable year following the taxable year in which such fees and expenses were incurred, such fees and expenses will be paid on the last day of such taxable year following the taxable year in which such fees and expenses were incurred. If such court or other tribunal does not ultimately find in favour of the Executive, the Executive will repay to the Corporation as soon as practicable, but in no event more than 90 days after the court or other tribunal renders its ruling, any amounts paid or reimbursed pursuant to the prior sentence that would not have been paid or reimbursed pursuant to Section 5(p) but for the prior sentence.

 

10.5 In the event a payment made to the Executive hereunder would constitute an “excess parachute payment” subjection to Section 280G of the Code, such payment shall be reduced to the highest level such that the payment shall no longer constitute an “excess parachute payment”, and the amount of such reduction shall be forfeited by the Executive. The determination as to whether any payment hereunder is an “excess parachute payment” shall be made by the Board in its sole discretion in good faith.

 

11.0 Miscellaneous

 

11.1 Amendment and Waiver . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing. No waiver by either Party hereto of, or in compliance with, any condition or provision of this Agreement to be performed by such other Party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.

 

11.2 Governing Law . This Agreement shall be construed and enforced in accordance with, and the rights of the Parties shall be governed by, the laws of the Province of Alberta.

 

11.3 Currency . All amounts in this Agreement are stated in and shall be paid in Canadian currency.

 

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11.4 Gender and Number. Unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing one gender include the other gender.

 

12.0 Validity

 

12.1 The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

 

13.0 Counterparts

 

13.1 This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same Agreement.

 

14.0 Headings

 

14.1 The division of this Agreement into sections, subsections and clauses, or other portions hereof and the insertion of headings or subheadings, are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.

 

Page 15


15.0 Time of the Essence

 

15.1 Time shall be of the essence in this Agreement.

IN WITNESS WHEREOF , the Parties hereto have caused this Agreement to be duly executed effective as of the date first above written.

 

ENCANA CORPORATION
Per:   /s/ Douglas J. Suttles
 

 

  Douglas J. Suttles
  President & Chief Executive Officer
Per:   /s/ Michael Williams
 

 

  Michael Williams
  Executive Vice-President,
  Corporate Services
  /s/ Carol Schmaltz
 

 

  Witness

 

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SCHEDULE “A”

INCENTIVE COMPENSATION CLAWBACK POLICY:

By resolution of the Board of Directors (the “ Board ”) of Encana Corporation (“ Encana ” or the “ Corporation ”), this Policy is effective as of this 22 nd day of October, 2012 (the “ Effective Date ”).

This Policy applies to the President & Chief Executive Officer and each Executive-Vice President of the Corporation and any individual who serves in either such capacity on or following the Effective Date (collectively, the “ Executive ”). References in this Policy to the “Corporation” include, where applicable, any affiliate thereof.

This Policy has been adopted to enhance the Corporation’s alignment with best practices in respect of risk management and executive compensation and shall be, at all times, subject to and interpreted in a manner consistent with applicable laws or the rules of any applicable stock exchange (collectively, “ Applicable Rules ”).

This Policy applies to “ Incentive-Based Compensation ” which, for the purposes of this Policy, means compensation relating to the achievement of performance goals or similar conditions, excluding salary, perquisites, benefits and pension entitlements, and including, without limitation, any award or grant of or any eligibility, entitlement or gain of, an Executive under the Corporation’s: (i) High Performance Results Plan, or any other short-term incentive plan; or (ii) Long-Term Incentive (“ LTI ”) program including, without limitation, Employee Stock Option Plan, Employee Stock Appreciation Rights Plan, Performance Share Unit Plan, Restricted Share Unit Plan and Deferred Share Unit Plan, as each may be amended from time to time (including any performance-based grants under any such plans). For greater clarity, this Policy shall not apply to any Incentive-Based Compensation awarded, granted or paid to an Executive prior to the Effective Date.

Where:

 

    the Corporation is required to prepare an accounting restatement due to its material non- compliance with any financial reporting requirement under applicable securities laws (the “ Restatement ”), (the date upon which the Corporation is required to prepare such Restatement is hereinafter the “ Restatement Date ”);

 

    the Executive received Incentive-Based Compensation referable to the financial years subject to the Restatement in excess of what the Executive would have been paid under the Restatement (the “ Overcompensation Amount ”); and

 

    the Executive engaged in gross negligence, intentional misconduct or fraud which caused or significantly contributed to the Corporation’s material non-compliance with applicable securities laws which resulted in the requirement for the Restatement;

the Board shall be entitled:

 

    where and to the extent the Overcompensation Amount has been previously paid, transferred or otherwise made available to the Executive, to require the Executive, by written demand, to reimburse the Corporation for the Overcompensation Amount; and

 

   

where all or a portion of the Overcompensation Amount has not been paid, transferred or otherwise made available to the Executive, the right of the Executive to be so paid or have such benefit transferred or otherwise made available to him or her shall, to the extent required to reimburse the Corporation for such Overcompensation Amount, immediately terminate and be


 

forfeited by the Executive and where required, cancelled by the Corporation to such extent and upon such date as may be specified by the Board; and

 

    to the extent the Overcompensation Amount is not immediately recovered upon demand from the Executive, whether via direct reimbursement, forfeiture and/or cancellation, to require a sufficient quantity or value of any compensation owing by the Corporation to the Executive including, without limitation, any unvested or unexercised awards under the LTIs (the “ Outstanding LTIs ”), be immediately withheld and/or irrevocably cancelled by the Corporation to compensate for (or set off the value of same against) the Overcompensation Amount or any unrecovered portion thereof, and to bring any other actions against the Executive which the Board may deem necessary to recover the Overcompensation Amount.

The period of time during which the Corporation shall be entitled to seek recovery of the Overcompensation Amount from the Executive shall be three (3) years from the Restatement Date. Recoupment of Overcompensation Amounts under this Policy shall be initiated by the Corporation at the request of the Board, and all amounts recoverable or payable hereunder shall be paid to the Corporation or as directed by the Board.

If Applicable Rules require the Corporation to adopt a policy or provisions relating to the recoupment or recovery of incentive-based or other compensation based on restated financial statements which are inconsistent with or materially differ from this Policy and the Board adopts such policy or provisions to comply with Applicable Rules (the “ New Policy ”), such New Policy shall replace and supersede this Policy and shall apply to Incentive-Based Compensation granted or awarded to the Executive following the effective date of the New Policy. Subject to Applicable Rules, this Policy shall continue to apply to Incentive-Based Compensation granted or awarded to the Executive prior to the effective date of the New Policy. This Policy may be terminated at any time by the Board.

 

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Exhibit 10.24

CHANGE IN CONTROL AGREEMENT

THIS AGREEMENT made effective as of the 12 th day of January 2015

BETWEEN

ENCANA CORPORATION , a body corporate registered in the Province of Alberta (the “Corporation”)

OF THE FIRST PART

-and-

JOANNE L. ALEXANDER, of the City of Calgary, in the Province of Alberta (the “Executive”)

OF THE SECOND PART

WHEREAS the Board of Directors of the Corporation (the “Board”) recognizes that the establishment and maintenance of a sound and vital management team is essential to the protection and enhancement of the best interests of the Corporation and its shareholders;

AND WHEREAS the Board further recognizes that an employee is most vulnerable at the point of termination of employment;

AND WHEREAS the Board further recognizes that, as is the case with many corporations, the possibility of a Change in Control of the Corporation could arise and create a climate of uncertainty among the Corporation’s senior executives, and could result in the distraction of such senior executives to the detriment of the Corporation and its shareholders;

AND WHEREAS the Board believes it is important, should the Corporation or its shareholders receive a proposal for transfer of control of the Corporation, that the Executive be able to assess and advise the Board whether such proposal would be in the best interests of the Corporation and its shareholders and to take such other action regarding such proposal as the Board might determine to be appropriate, without being distracted by the uncertainties of her own situation;

AND WHEREAS , in order to induce the Executive to remain in the employ of the Corporation and to assure the Corporation of her continued and undivided attention and services, notwithstanding any events which might result in a Change in Control of the Corporation, this Agreement, the principal terms of which has been previously approved by the Board, records certain benefits extended to the Executive.

NOW THEREFORE , in consideration of the covenants and agreements hereinafter set forth and for other good and valuable consideration (the receipt and sufficiency whereof are hereby acknowledged by each of the Parties), the Parties hereby mutually covenant and agree as follows:


1.0 Term of Agreement

 

1.1 Term . This Agreement shall commence on the date hereof and shall continue in effect through December 31, 2015; provided however that commencing on January 1, 2016 and each January 1 thereafter, the term of this Agreement shall automatically be extended for one additional year during the Executive’s employment until such time as there shall occur a Change in Control of the Corporation and for a period of three years from the Effective Date of such Change in Control (the “Term”); provided, however, that if payment of compensation and benefits has begun under this Agreement, the payment of such compensation and benefits shall continue beyond the end of the Term in accordance with the applicable provisions of this Agreement.

 

2.0 Change in Control

 

2.1 Compensation and Benefits not until. The Parties acknowledge and agree that no compensation or benefits shall be payable to the Executive hereunder unless and until there shall have occurred both: (i) a Change in Control of the Corporation; and (ii) the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason, in accordance with the terms of this Agreement.

 

2.2 “Change in Control”. For purposes of this Agreement, a “Change in Control” of the Corporation shall be deemed to have occurred if:

 

  (a) any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity, or any persons acting jointly or in concert with the foregoing, is or becomes the beneficial owner directly or indirectly of, securities of the Corporation representing more than 30% of the combined voting power of the Corporation’s then outstanding securities entitled to vote in the election of the directors of the Corporation (the “Voting Shares”);

 

  (b) the Corporation shall have disposed of: (i) all or substantially all of its assets, such that shareholder approval was required under the Canada Business Corporations Act; or (ii) assets in any 12 month period representing 50% or more of the total assets of the Corporation, determined as of the date of the audited financial statements of the Corporation then most recently published;

 

  (c) pursuant to a single election or appointment or a series of elections or appointments over any period from and after the date of this Agreement: (i) those individuals who at the date of the Agreement constituted the Board, together with (ii) any new or additional director or directors whose nomination for election by the Corporation’s shareholders, or whose appointment to the Board by the Board, has been approved by at least 75% of the votes cast by all of the directors then still in office, who either were directors at the date of this Agreement or whose appointment or nomination for election was previously so approved, cease for any reason to constitute a majority of the Board; or

 

Page 2


  (d) the Board, by resolution duly adopted by the affirmative vote of a simple majority of the votes cast by the Board, determines that, for purposes of this Agreement, a Change in Control of the Corporation has occurred.

 

2.3 Employee Benefit Plans, etc. For the purposes of determining the percentage portion or fraction of Voting Shares under Section 2.2(a), securities beneficially owned or controlled or directed by an employee plan or related trust sponsored or maintained by the Corporation or its subsidiaries shall not be taken into account in the determination of the numerator but shall be taken into account in the determination of the denominator.

 

2.4 When Compensation and Benefits Payable . Upon the occurrence of both: (i) a Change in Control of the Corporation; and (ii) the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason, as contemplated by the terms of this Agreement, the provisions of Section 5.0 hereof in respect of the compensation and benefits payable, as applicable, shall apply.

 

2.5 Definitions and Interpretation . For purposes of this Section 2.0:

 

  (a) the term “acting jointly or in concert” shall be interpreted in accordance with Section 159 of the Securities Act (Alberta), as amended; and

 

  (b) the term “beneficial ownership” shall be interpreted in accordance with Sections 5 and 6 of the Securities Act (Alberta) and “beneficial owner” shall have a corresponding meaning, except that for purposes of t his Agreement, options and convertible securities granted by the Corporation to employees, officers or directors shall not be included in determining beneficial ownership or beneficial owner.

 

3.0 Definitions

For purposes of this Agreement and for purposes of determining such compensation and benefits as may be payable hereunder following the occurrence of a Change in Control of the Corporation, the following definitions shall apply:

 

3.1 Affiliate ”. “Affiliate” shall be interpreted in accordance with the definition of such term as contained in Section 2 of the Canada Business Corporations Act (Canada).

 

3.2 Cause ”. “Cause” means:

 

  (a)

the substantial or material breach by the Executive of any policy or practices of the Corporation or the willful and continued failure by the Executive to substantially perform her duties with the Corporation or an Affiliate after a written demand for substantial performance is delivered to the Executive by the Board, which demand specifically identifies the manner in which the Board believes that the Executive has not substantially performed her duties, and the Executive fails to correct such failure to perform her duties within 30 days after such written demand is delivered to her; provided, however, that if such failure

 

Page 3


  occurs after the happening of circumstances which would entitle the Executive to terminate for Good Reason, the same shall not constitute the basis for “Cause”; or

 

  (b) the willful engaging by the Executive in conduct which is dishonest or demonstrably and materially injurious to the Corporation or an Affiliate, monetarily or otherwise. For purposes of this definition, any action by the Executive or any failure on her part to act, shall be deemed “willful” when done (or omitted to be done) by the Executive not in good faith and if when done (or omitted to be done) the Executive had or ought to have had the reasonable belief that her action or omission would not be in the best interests of the Corporation or an Affiliate.

Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to her a copy of a resolution duly adopted by the Board, finding that in the good faith opinion of the Board, the Executive was guilty of conduct set forth in clause (a) or (b) of this Section and specifying the particulars thereof.

 

3.3 Effective Date ”. “Effective Date” means the date of the occurrence of the specified event constituting a Change in Control of the Corporation.

 

3.4 Good Reason ”. “Good Reason” means any of the following, unless the Executive shall have given her express written consent thereto:

 

  (a) Changed Duties or Status . The assignment to the Executive of any duties inconsistent with her status as a senior executive of the Corporation or a material alteration in the nature or status of her responsibilities or duties or reporting relationship from those in effect immediately prior to a Change in Control of the Corporation;

 

  (b) Reduced Salary . A reduction by the Corporation in the Executive’s annual base salary as in effect on the date hereof (or as the same may be increased from time to time);

 

  (c) Relocation . The Corporation’s requiring the Executive to be based anywhere other than where the Executive is based at the time of a Change in Control of the Corporation, except for: (i) required travel on the Corporation’s business to an extent substantially consistent with the Executive’s business travel obligations in the ordinary course of business immediately prior to the Change in Control of the Corporation; or (ii) where the Executive is relocated or repatriated by the Corporation, such relocation as may be required by applicable law or performed in accordance with an agreed-upon assignment with the Corporation or an Affiliate;

 

  (d)

Incentive Compensation Plans . Changes to the terms of the Corporation’s High Performance Results Plan (the “HPR Plan”) or any replacement short-term incentive plan in which the Executive is participating as of the Change in Control (the “Annual Incentive Plans”), the Corporation’s Employee Stock Option Plan

 

Page 4


  (“ESOP”), Performance Share Unit Plan for Employees of Encana Corporation (“PSU Plan”), or Restricted Share Unit Plan for Employees of Encana Corporation (“RSU Plan”) or to such other long-term incentive plans in which the Executive may be participating prior to the Change in Control of the Corporation, which would have the effect of materially reducing the Executive’s aggregate potential incentive compensation, except in circumstances where the Corporation alters or reduces the opportunity for potential incentive compensation available under such plans for all senior executives of the Corporation,

 

  (e) Pension Plan, Benefit Plans and Perquisites . The failure by the Corporation to continue to provide the Executive:

 

  (i) with pension and related benefits substantially similar as those enjoyed by her under the Encana Corporation Canadian Pension Plan and the Encana Corporation Canadian Defined Contribution Savings Plan (collectively, the “Encana Pension Plans”), except for across-the-board reductions in, or amendments to, such benefits similarly affecting all senior executives of the Corporation and relating to service or employment after the date upon which such reduction or amendment is announced; or

 

  (ii) with benefits substantially similar to those enjoyed by her under any other retirement arrangement established for the Executive, except for across- the-board reductions in, or amendments to, such benefits similarly affecting all senior executives of the Corporation and relating to service or employment after the date on which such reduction or amendment is announced; or

 

  (iii) with benefits at least substantially similar to any of the Corporation’s life insurance, medical, health and accident, disability or investment plans in which the Executive may participate at the date hereof or subsequently, or the taking of any action by the Corporation that would directly or indirectly materially reduce any such benefits or deprive the Executive of any material perquisite enjoyed by her, except for across-the-board reductions in such benefits or comparable benefits similarly affecting all senior executives of the Corporation; or

 

  (iv) with the number of paid vacation days to which the Executive is entitled in accordance with the normal vacation policy in effect in respect of the Executive as of the date hereof or subsequently;

 

  (f) Deferred Compensation . The failure by the Corporation to pay the Executive any portion of her then current compensation without her consent except pursuant to an across-the-board compensation deferral similarly affecting all senior executives of the Corporation or the failure by the Corporation to pay to the Executive any installment of deferred compensation at the time such installment is due under any deferred compensation program of the Corporation;

 

Page 5


  (g) No Assumption by Successor . The failure of the Corporation to obtain a satisfactory agreement from a successor to assume and agree to perform this Agreement as contemplated by Section 7.0 hereof, or if the business or undertaking in connection with which the Executive’s services are principally performed is sold at any time after a Change in Control and the Executive’s employment is transferred as a result, the purchaser of such business shall fail to agree to provide the Executive with the same or a comparable position, duties, compensation and benefits, as described in paragraphs (d) and (e) above, as provided to the Executive by the Corporation immediately prior to the Change in Control;

 

  (h) Disposition of “All or Substantially All” . The disposition by the Corporation of all or substantially all of the assets of the Corporation.

 

4.0 Notice of Termination; Date of Termination

 

4.1 Notice of Termination . Any termination of the Executive’s employment either by the Executive for Good Reason or by the Corporation for Cause or without Cause, as applicable, shall be communicated by written Notice of Termination to the Executive or to the Corporation, as the case may be, in accordance with Section 8.0 hereof.

 

4.2 Content of Notice of Termination . The “Notice of Termination” shall mean a notice which shall indicate the specific termination provision in this Agreement relied upon by the Executive or the Corporation, as the case may be, and shall set forth in reasonable detail the facts and circumstances claimed as the basis for the Executive’s terminating her employment or the Corporation’s terminating the Executive’s employment, as the case may be. The Executive’s failure to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of “Good Reason” shall not result in a waiver of her rights hereunder or preclude her from subsequently asserting such fact or circumstance in enforcing her rights hereunder.

 

4.3 Date of Termination . The “Date of Termination” shall mean if the Executive’s employment is terminated by the Corporation without Cause or by the Executive for Good Reason, the date specified in the Notice of Termination (which, in the case of termination by the Executive for Good Reason, shall be not less than 15 days nor more than 60 days from the date such Notice of Termination is given).

 

4.4 Notice Required . For the purposes of this Section 4.0, any purported termination of the Executive’s employment which is not effected pursuant to a Notice of Termination satisfying the requirements of Section 4.2 hereof shall not be effective.

 

5.0 Compensation and Benefits following Change in Control

Following both: (i) a Change in Control of the Corporation; and (ii) the termination of the Executive’s employment by the Corporation without Cause or by the Executive for Good Reason, in accordance with the terms of this Agreement, the Corporation shall cause to be provided to the Executive in exchange for the Executive’s execution and return to the Corporation of a General Release on such date and in such form as may be provided to

 

Page 6


the Executive by the Corporation, acting reasonably, the following benefits in full satisfaction of all of the Corporation’s obligations to the Executive:

 

  (a) Accrued Compensation and Payment Date . The Corporation shall pay the Executive, in a lump sum, not later than the 30th business day following the Date of Termination (the “Payment Date”), her full base salary through the Date of Termination at the rate in effect at the time the Notice of Termination is given.

 

  (b) Severance Payment, Severance Period and Severance Salary Rate . In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination, the Corporation shall pay to the Executive, on account of both compensation in lieu of notice and loss of office, not later than the Payment Date, a lump sum severance payment (the “Severance Payment”) equal to the amount of base salary the Executive would have earned had she continued to be employed until the end of the 24 th full calendar month following the Date of Termination (the “Severance Period”) assuming that the Executive’s rate of monthly base salary during the Severance Period would be equal to the highest monthly rate of base salary which was payable to her by the Corporation or an Affiliate during the 24t h month period immediately preceding the Date of Termination (the “Severance Salary Rate”).

 

  (c) Investment Plan . The Corporation shall pay the Executive the maximum contribution the Corporation would have been required to make on behalf of the Executive to the Corporation’s Canadian Investment Plan in respect of the Severance Period if the Executive had remained fully employed and had elected to have the Corporation match her Investment Plan contribution, determined as if the Executive continued to make contributions to the Corporation’s Investment Plan at a rate equal to the contributions actually made by her under the Investment Plan in the last complete calendar year immediately preceding the Date of Termination. This payment will be made in cash, in a lump sum, on the Payment Date.

 

  (d)

Annual Incentive Plans . The Corporation shall pay to the Executive, in cash, in a lump sum, no later than the Payment Date, an amount in lieu of her participation in the Annual Incentive Plans in which she is participating as of the Notice of Termination , such payment to be equal to: (i) two times the average of the annual amounts paid to the Executive under the Annual Incentive Plans (excluding for greater certainty an y special awards thereunder) in respect of the three complete fiscal years of the Corporation immediately preceding the Date of Termination, and (ii) (in cases where the Date of Termination is not the end of a fiscal year), a pro rata payment for the number of days which have elapsed in the fiscal year in which the Date of Termination occurs, based on the same calculation described above. For the purposes of this Section 5.0(d), where the Date of Termination is prior to the completion of three complete fiscal years of amounts payable to the Executive under the Annual Incentive Plans, the average of amounts paid to the Executive under such Plans shall be determined based the average of amounts

 

Page 7


  paid to the Executive under such Plans for each complete fiscal year of the Corporation immediately preceding the Date of Termination.

 

  (e) Performance Share Unit Plan . In respect of the Executive’s entitlements under the Corporation’s PSU Plan, Performance Share Units (“PSUs”) granted to the Executive as at the effective date of such Change in Control (as defined under the PSU Plan) shall become vested and paid as applicable and in accordance with the terms of the PSU Plan and corresponding PSU Grant Agreement(s).

 

  (f) Restricted Share Unit Plan . In respect of the Executive’s entitlements under the Corporation’s RSU Plan, Restricted Share Units (“RSUs”) granted to the Executive as at the effective date of such Change in Control (as defined under the RSU Plan) shall become vested and payable as applicable and in accordance with the terms of the RSU Plan and corresponding RSU Grant Agreement(s).

 

  (g) ESOP and Employee Stock Appreciation Rights Plan . In respect of the Executive’s entitlements under the Corporation’s ESOP or Employee Stock Appreciation Rights Plan (“ESAR Plan”), as applicable, all Stock Options (“Options”) and Stock Appreciation Rights (“SARs”) held by the Executive as at the Notice of Termination shall be impacted as follows:

 

  (i) All Time-Based Options or Time-Based SARs (as such terms are defined in the applicable and corresponding Option Grant Agreement(s) or the ESAR Plan, as applicable), granted to the Executive as at the effective date of such Change in Control (as defined under such plan documents) shall become vested and payable, as applicable, in accordance with the terms of the respective Option Plan or ESAR Plan (as applicable), and corresponding Grant Agreement(s); and

 

  (ii) Performance Options and Performance SARs (as such terms are defined in the applicable and respective Option Grant Agreement(s) or the ESAR Plan, as applicable) granted to the Executive as at the effective date of such Change in Control (as defined under such plan documents) shall become vested and payable, as applicable, in accordance with the terms of the respective Option Plan or ESAR Plan (as applicable), and corresponding Grant Agreement(s).

All Options and SARs which are vested as of the effective date of the Change in Control may be exercised for the lesser of their term (as defined in the Option Plan or SAR Plan, or corresponding Grant Agreement(s), as applicable) or 24 months following the Date of Termination.

 

  (h)

Insurance Benefits . The Corporation shall continue to provide the Executive with the same level of life, disability, accident, dental and health insurance benefits the Executive was receiving or entitled to receive from the Corporation immediately prior to the Date of Termination until the end of the Severance Period; provided, however, that if for any reason such insurance benefit is not provided to the end of

 

Page 8


  the Severance Period, a lump sum payment equal to the present value of the cost to the Corporation of providing such insurance shall be paid to the Executive. The contributions or premiums required to be paid by the Executive under such programs shall be payable by the Executive to the Corporation or to the insurer, as applicable, on the same basis as if the Executive continued to be employed during the Severance Period.

 

  (i) Vacation . The Corporation shall pay the Executive, in cash, in a lump sum, no later than the Payment Date, an amount equal to all accrued but unused vacation determined as of the Date of Termination. The amount of such payment shall be determined based upon the Executive’s Severance Salary Rate. In no event shall the amount of vacation time to which the Executive is entitled be less than the amount to which she would have been entitled under the vacation policy in effect as of the Change in Control.

 

  (j) Career Counselling . At the Executive’s request, the Corporation shall provide the Executive with career counselling services at a maximum cost to the Corporation of $15,000 per annum. Such services shall be provided until the Executive obtains subsequent employment or establishes her own business activity or to the end of the Severance Period, whichever is earliest. The Executive shall be entitled to obtain such services from the recognized professional career counselling firm of her choice in the major metropolitan area in or nearest to where she resides at the time she begins to use such services. In order to ensure the provision of such services, the Corporation and the Executive shall enter into a contract with the career counselling services firm, pursuant to which such firm shall provide the Executive with the career counselling services required herein.

 

  (k) Annual Allowance . The Corporation shall pay to the Executive no later than the Payment Date an amount equivalent to two times the annual allowance to which she is entitled as of the date of the Notice of Termination.

 

  (l) Financial Counselling . The Corporation shall, during the Severance Period, continue to provide the Executive with the same financial counselling benefits as those to which she was entitled as of the Change in Control. Such services shall be provided throughout the Severance Period, including the preparation of her tax return(s) for herself for the taxation year during which the Severance Period ends. To ensure the provision of such services, the Corporation and the Executive shall, as soon as practicable, enter into a contract with the financial counselling services firm, pursuant to which such firm shall provide the Executive with the financial counselling services required herein.

 

  (m)

Executive Medical . The Corporation shall continue to provide the Executive with the same executive physical examination benefits as those to which she was entitled as of the Change in Control. Such benefits shall be provided for the duration of the Severance Period. In order to ensure the provision of such benefits, the Corporation and the Executive shall, as soon as practicable, enter into a contract with a medical services firm, pursuant to which such firm shall

 

Page 9


  provide the Executive with the executive physical examination services required herein.

 

  (n) Professional Membership Fees . To the extent not already paid to the Executive under Section 5.0(k), the Corporation shall pay the Executive, in cash, in a lump sum, no later than the Payment Date, an after-tax amount equal to the present value of the cost of membership fees for membership in professional organizations related to her position and duties with the Corporation that she would have incurred throughout the Severance Period that would have been payable or reimbursable by the Corporation under the terms of its policy in effect as of the Change in Control had she continued to be employed during the Severance Period, assuming that the annual cost of such fees was equal to the amount reimbursed or paid by the Corporation for the year preceding the year in which a Notice of Termination is delivered.

 

  (o) Pension Benefits . In addition to the benefits which the Executive is entitled under the Encana Pension Plans, or any retirement arrangement established by the Corporation for the Executive with her consent:

 

  (i) The Executive will be credited with pensionable contributions in the Encana Corporation Canadian Defined Contribution Savings Plan (the “Supplemental Pension Plan”), as may be amended from time to time or any successor plan thereto, for each of the 24 months included in the Severance Period;

 

  (ii) For purposes of Section 5.0(o)(i), the Executive’s pensionable earnings shall be calculated based on the lesser of: (i) 40% of the Executive’s Severance Salary Rate; and (ii) the average of the annual amounts paid to the Executive under the Annual Incentive Plans (excluding, for greater certainty, any special awards) in respect of the three complete fiscal years of the Corporation immediately preceding the Date of Termination, or such annual average amount as calculated in accordance with Section 5.0(d) hereof;

 

  (iii) On or prior to the 15 th business day following the Date of Termination, the Executive will receive a lump sum cash payment of her accrued entitlements under t he Supplemental Pension Plan, payable on the Payment Date, such amount to be determined: (A) without any gross up or other adjustment for income tax and not taking in to account the non-registered status of the Supplemental Pension Plan, and (B) assuming the Executive’s accrued entitlement under the Supplemental Pension Plan is fully vested.

 

  (p)

Legal Fees and Expenses. The Corporation shall pay the Executive’s legal or professional fees and expenses incurred by her as a result of her termination (including actual legal fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or

 

Page 10


  benefit provided by this Agreement) up to $100,000. Such fees shall be reimbursed by the Corporation reasonably promptly following receipt of a copy of any invoice from the Executive evidencing the payment by the Executive of such fees. In addition, the Corporation will pay legal fees and expenses incurred by the Executive as a result of her termination that are in excess of $100,000 (including actual legal fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement) if a court or other tribunal finds in favour of the Executive.

 

  (q) Deductions . The Executive agrees that benefits and payments to which she is entitled pursuant to this Agreement are subject to deductions or other source withholdings as may be required by law.

 

  (r) Calculations . For purposes of determining the present value of an amount, other than for purposes of Section 5.0(o) above, the interest rate to be used shall be the yield for five year constant maturity Canadian government bonds for the current week taken from the most recent weekly Canadian Debt Strategy published by ScotiaMcLeod Inc. or, if for any reason that report is not available at the relevant time, the most recent weekly report published by another recognized Canadian publisher of a report of similar standing chosen by the Corporation. Calculations of pension amounts payable under this Agreement shall be subject to verification by the Corporation’s actuarial consultants.

 

  (s) No Mitigation . The Executive shall not be required to mitigate the amount of any payment provided for in this Section by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided to the Executive by the Corporation referred to in this Section be reduced by any compensation earned by, or benefits paid to, the Executive as the result of employment, whether by another employer or self-employment, or by pension benefits after the Date of Termination, or otherwise, except as specifically provided in this Section

 

6.0 Entire Agreement

 

  6.1 This Agreement constitutes the entire agreement between the Parties hereto concerning change in control benefits and obligations and supersedes all prior agreements or understandings. There are no representations or warranties, express or implied, or any conditions or collateral or implied agreements which apply to or govern benefits or obligations relating to a change in control of the Corporation between the Parties other than as are expressly set forth or referred to herein. For greater certainty, all change in control agreements or contracts in existence prior to the date hereof are terminated and replaced by this Agreement. This Agreement cannot be amended except by a written agreement executed by the Parties hereto.

 

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7.0 Successors; Binding Agreement

 

  7.1 Assumption by Successors . The Corporation will require any successor corporation (whether direct or indirect, and whether by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Corporation to expressly assume and to agree to perform this Agreement in the same manner and to the same extent as the Corporation, as if no such succession had taken place, and to the extent that the Corporation has not already satisfied an obligation hereunder. Failure of the Corporation to obtain such assumption and agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Executive to compensation from the Corporation in the same amount and on the same terms as the Executive would be entitled to if the Executive were to terminate the Executive’s employment for Good Reason following a Change in Control of the Corporation , except that for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, “Corporation” shall mean the Corporation as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.

 

  7.2 Enforceability by Beneficiaries . This Agreement shall enure to the benefit of and be enforceable by the Parties hereto and their respective heirs, legal or personal representatives, successors and assigns and if the Executive should die while any amount would still be payable to her hereunder if she had continued to live, all such amounts shall be paid in accordance with the terms of this Agreement to the Executive’s devisee, legatee or other designee or, if there is no such designee, to her estate.

 

8.0 Notices

 

  8.1 Notices . For the purpose of this Agreement, notices and all other communications provided for in this Agreement shall be in writing, shall be deemed to have been duly given when delivered or sent by facsimile, charges prepaid and confirmed in writing or on the third business day after having been sent by registered mail, postage prepaid, as follows:

If to the Corporation:

Encana Corporation

500 Centre Street S.E.

Calgary, Alberta

T2P 2S5

Attention: Executive Vice-President, Corporate Services

If to the Executive:

XXXX XXXX

XXXX XX XXX XXX

 

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Attention: Joanne L. Alexander, Executive Vice-President & General Counsel

Each of the Corporation and the Executive may from time to time change its address for notice by notice to the other Party given in the manner aforesaid.

 

9.0 Subject to Clawback Policy

 

9.1 Notwithstanding any other provision herein, the Executive acknowledges and agrees that entitlements to any and all incentive compensation hereunder (including any portion thereof) and/or any payments in respect thereof shall be expressly subject to the terms and conditions of the Corporation’s “Incentive Compensation Clawback Policy” (the “Policy”), attached hereto as Schedule “A”, as same may be amended by the Corporation from time to time. Without limiting the generality of the foregoing, the provisions of this Agreement shall at all times be interpreted so as to be expressly subject to the provisions of the Policy.

 

10.0 Tax & 409A Compliance

 

10.1 This Agreement and any payment, distribution or other benefit hereunder shall comply with applicable law including, as applicable, all requirements of the Income Tax Act (Canada) any related regulations or other guidance promulgated by the Canada Revenue Agency, the Internal Revenue Code of 1986, as amended (the “Code”), including, without limitation Section 409A thereof any exemption or exclusion therefrom, as well as any related regulations or other guidance promulgated by the U.S. Department of the Treasury or the Internal Revenue Service (“Section 409A”) and, to the extent applicable, shall in be administered in accordance with Section 409A all respects; provided, that for the avoidance of doubt, this provision shall not be construed to require a gross-up payment in respect of any taxes, interest or penalties imposed on Executive as a result of Section 409A.

 

10.2 For purposes of this Agreement, to the extent Section 409A is applicable, Executive shall not be deemed to have terminated employment unless and until a separation from service (within the meaning of Treasury Regulation Section 1.409A-1(h)) has occurred. If Executive is a “specified employee” under Section 409A, no payment, distribution or other benefit provided pursuant to this Agreement constituting a deferral of compensation (within the meaning of Treasury Regulation Section 1.409A-1(b)) that is required to be delayed to comply with Code Section 409A(a)(2)(B)(i) shall be provided before the date that is six months after the date of such separation from service (or, if earlier than the end of such six-month period, the date of death of the specified employee). Any payment, distribution or other benefit that is delayed pursuant to the prior sentence shall be paid on the first business day following the six-month anniversary of the separation from service.

 

10.3

To the extent Section 409A is applicable, in no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement. Any provision that would cause this Agreement or a payment, distribution or other benefit hereunder to fail to satisfy the requirements of Section 409A shall have no force or effect and, to the extent an amendment would be effective for purposes of Section

 

Page 13


  409A, the parties agree that this Agreement shall be amended to comply with Section 409A. Such amendment shall be retroactive to the extent permitted by Section 409A. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.

 

10.4 To the extent Section 409A is applicable, all reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement shall be for expenses incurred during the time period specified in this Agreement, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made not later than the last day of Executive’s taxable year following the taxable year in which such expense was incurred, and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. Notwithstanding anything in this Agreement to the contrary, with respect to payment of legal fees and expenses pursuant to Section 5(p) hereof, if the court or other tribunal has not yet found in favour or against the Executive prior to the last day of Executive’s taxable year following the taxable year in which such fees and expenses were incurred, such fees and expenses will be paid on the last day of such taxable year following the taxable year in which such fees and expenses were incurred. If such court or other tribunal does not ultimately find in favour of the Executive, the Executive will repay to the Corporation as soon as practicable, but in no event more than 90 days after the court or other tribunal renders its ruling, any amounts paid or reimbursed pursuant to the prior sentence that would not have been paid or reimbursed pursuant to Section 5(p) but for the prior sentence.

 

10.5 In the event a payment made to the Executive hereunder would constitute an “excess parachute payment” subjection to Section 280G of the Code, such payment shall be reduced to the highest level such that the payment shall no longer constitute an “excess parachute payment”, and the amount of such reduction shall be forfeited by the Executive. The determination as to whether any payment hereunder is an “excess parachute payment” shall be made by the Board in its sole discretion in good faith.

 

11.0 Miscellaneous

 

11.1 Amendment and Waiver . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing. No waiver by either Party hereto of, or in compliance with, any condition or provision of this Agreement to be performed by such other Party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.

 

11.2 Governing Law . This Agreement shall be construed and enforced in accordance with, and the rights of the Parties shall be governed by, the laws of the Province of Alberta.

 

11.3 Currency . All amounts in this Agreement are stated in and shall be paid in Canadian currency.

 

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11.4 Gender and Number. Unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing one gender include the other gender.

 

12.0 Validity

 

12.1 The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

 

13.0 Counterparts

 

13.1 This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same Agreement.

 

14.0 Headings

 

14.1 The division of this Agreement into sections, subsections and clauses, or other portions hereof and the insertion of headings or subheadings, are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.

 

Page 15


15.0 Time of the Essence

 

15.1 Time shall be of the essence in this Agreement.

IN WITNESS WHEREOF , the Parties hereto have caused this Agreement to be duly executed effective as of the date first above written.

 

ENCANA CORPORATION
Per:   /s/ Douglas J. Suttles
 

 

  Douglas J. Suttles
  President & Chief Executive Officer
Per:  

/s/ Joanne L. Alexander

 

 

  Joanne L. Alexander
  Executive Vice-President & General Counsel
 

/s/ Michael Williams

 

 

  Witness

 

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SCHEDULE “A”

INCENTIVE COMPENSATION CLAWBACK POLICY:

By resolution of the Board of Di rectors (the “ Board ”) of Encana Corporation (“ Encana ” or the “ Corporation ”), this Policy is effective as of this 22 nd day of October, 2012 (the “ Effective Date ”).

This Policy applies to the President & Chief Executive Officer and each Executive-Vice President of the Corporation and any individual who serves in either such capacity on or following the Effective Date (collectively, the “ Executive ”). References in this Policy to the “Corporation” include, where applicable, any affiliate thereof.

This Policy has been adopted to enhance the Corporation’s alignment with best practices in respect of risk management and executive compensation and shall be, at all times, subject to and interpreted in a manner consistent with applicable laws or the rules of any applicable stock exchange (collectively, “ Applicable Rules ”).

This Policy applies to “ Incentive-Based Compensation ” which, for the purposes of this Policy, means compensation relating to the achievement of performance goals or similar conditions, excluding salary, perquisites, benefits and pension entitlements, and including, without limitation, any award or grant of or any eligibility, entitlement or gain of, an Executive under the Corporation’s: (i) High Performance Results Plan, or any other short-term incentive plan; or (ii) Long-Term Incentive (“ LTI ”) program including, without limitation, Employee Stock Option Plan, Employee Stock Appreciation Rights Plan, Performance Share Unit Plan, Restricted Share Unit Plan and Deferred Share Unit Plan, as each may be amended from time to time (including any performance-based grants under any such plans). For greater clarity, this Policy shall not apply to any Incentive-Based Compensation awarded, granted or paid to an Executive prior to the Effective Date.

Where:

 

    the Corporation is required to prepare an accounting restatement due to its material non-compliance with any financial reporting requirement under applicable securities laws (the “ Restatement ”), (the date upon which the Corporation is required to prepare such Restatement is hereinafter the “ Restatement Date ”);

 

    the Executive received Incentive-Based Compensation referable to the financial years subject to the Restatement in excess of what the Executive would have been paid under the Restatement (the “ Overcompensation Amount ”); and

 

    the Executive engaged in gross negligence, intentional misconduct or fraud which caused or significantly contributed to the Corporation’s material non-compliance with applicable securities laws which resulted in the requirement for the Restatement;

the Board shall be entitled:

 

    where and to the extent the Overcompensation Amount has been previously paid, transferred or otherwise made available to the Executive, to require the Executive, by written demand, to reimburse the Corporation for the Overcompensation Amount; and

 

   

where all or a portion of the Overcompensation Amount has not been paid , transferred or otherwise made available to the Executive, the right of the Executive to be so paid or have such benefit transferred or otherwise made available to him or her shall, to the extent required to reimburse the Corporation for such Overcompensation Amount, immediately terminate and be


 

forfeited by the Executive and where required, cancelled by the Corporation to such extent and upon such date as may be specified by the Board; and

 

    to the extent the Overcompensation Amount is not immediately recovered upon demand from the Executive, whether via direct reimbursement, forfeiture and/or cancellation, to require a sufficient quantity or value of any compensation owing by the Corporation to the Executive including, without limitation, any unvested or unexercised awards under the LTIs (the “ Outstanding LTIs ”), be immediately withheld and/or irrevocably cancelled by the Corporation to compensate for (or set off the value of same against) the Overcompensation Amount or any unrecovered portion thereof, and to bring any other actions against the Executive which the Board may deem necessary to recover the Overcompensation Amount.

The period of time during which the Corporation shall be entitled to seek recovery of the Overcompensation Amount from the Executive shall be three (3) years from the Restatement Date. Recoupment of Overcompensation Amounts under this Policy shall be initiated by the Corporation at the request of the Board, and all amounts recoverable or payable hereunder shall be paid to the Corporation or as directed by the Board.

If Applicable Rules require the Corporation to adopt a policy or provisions relating to the recoupment or recovery of incentive-based or other compensation based on restated financial statements which are inconsistent with or materially differ from this Policy and the Board adopts such policy or provisions to comply with Applicable Rules (the “ New Policy ”), such New Policy shall replace and supersede this Policy and shall apply to Incentive-Based Compensation granted or awarded to the Executive following the effective date of the New Policy. Subject to Applicable Rules, this Policy shall continue to apply to Incentive-Based Compensation granted or awarded to the Executive prior to the effective date of the New Policy. This Policy may be terminated at any time by the Board.

 

Page 2

Exhibit 10.25

DIRECTOR AND OFFICER INDEMNIFICATION AGREEMENT

THIS INDEMNIFICATION AGREEMENT (the “Agreement”) is effective as of the 20 th day of July, 2016 between Encana Corporation (the “ Corporation ”), and                      (the “ Indemnified Party ”).

RECITALS:

A. The Board of Directors of the Corporation (the “Board” ) considers it in the best interests of the Corporation to assure the Indemnified Party of reasonable protection through indemnification against certain risks arising out of service to, and activities on behalf of, the Corporation to the extent permitted by law.

B. By-law No. 1 of the Corporation contemplates that the Indemnified Party may be indemnified in certain circumstances.

C. Any previously entered into an indemnification agreement between the Corporation and the Indemnified Party dealing with this subject matter is intended to be superseded by this Agreement.

NOW THEREFORE in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration (the receipt and sufficiency of which are acknowledged), the parties agree as follows:

1. Interpretation

1.1 Definitions. I n this Agreement, the following terms have the following meaning:

Act ” means the Canada Business Corporations Act and the regulations made thereto, as from time to time amended, and every statute that may be substituted therefor, and in the case of such amendment or substitution, any reference to the Act in this Agreement refers to the amended or substituted provisions therefor.

Agreement ” means this indemnification agreement, as it may be amended or restated from time to time and the words “Article” and “Section” followed by a number mean and refer to the specified article or section of this indemnification agreement.

Business Day ” means any day, other than a Saturday, Sunday or statutory holiday in Calgary, Alberta.

Losses ” means all costs, charges, expenses (including other out-of-pocket expenses for attending discoveries, trials, hearings and meetings to prepare for those proceedings), losses, damages, Taxes, fees (including any legal, professional or advisory fees or disbursements reasonably incurred), awards, settlements, liabilities, fines, penalties, statutory obligations or amounts paid to settle or dispose of a claim or satisfy a judgment, in each case, which the Indemnified Party may reasonably suffer, sustain, incur or be required to pay in respect of a threatened, pending or completed Proceeding.

Proceeding ” means a claim, demand, suit, proceeding, inquiry, hearing, discovery or investigation, of whatever nature or kind, whether threatened, reasonably anticipated, pending, commenced, continuing or completed, and any appeal, and whether or not brought by the Corporation or other entity described in Section 3.3, as applicable.

Taxes ” includes any assessment, reassessment, claim or other amount for taxes, charges, duties, levies, imposts or similar amounts, including any interest and penalties in respect thereof, but excludes taxes on any fees, salary or other form of director or officer compensation the Indemnified Party receives.


1.2 Other Defined Terms . Words and expressions defined in the Act have the same meanings when used herein.

1.3 Gender and Number. Any reference in this Agreement to gender includes all genders and words importing the singular include the plural and vice versa.

1.4 Certain Phrases. In this Agreement :

1.4.1 the words “including” and “includes” mean “including (or includes) without limitation”; and

1.4.2 in the computation of periods of time from a specified date to a later specified date, unless otherwise expressly stated, the word “from” means “from and including” and if the last day of any such period is not a Business Day, such period will end on the next Business Day.

1.5 Headings, etc. The division of this Agreement into Articles and Sections and the insertion of headings are for convenient reference only and are not to affect or be used in the construction or interpretation of this Agreement.

2. Indemnification. The Corporation will, subject to Section 3, indemnify and save harmless the Indemnified Party and the heirs and legal representatives of the Indemnified Party to the fullest extent permitted by applicable law:

2.1 from and against all Losses sustained or incurred by the Indemnified Party in respect of any civil, criminal, administrative, investigative or other Proceeding to which the Indemnified Party is involved in by reason of being or having been a director or officer of the Corporation or other entity described in Section 3.3, as applicable; and

2.2 from and against all Losses sustained or incurred by the Indemnified Party as a result of serving as a director or officer of the Corporation in respect of any act, matter, deed or thing whatsoever made, done, committed, omitted, permitted or acquiesced in by the Indemnified Party as director or officer of the Corporation or other entity described in Section 3.3, as applicable, whether before or after the effective date of this Agreement and whether or not related to a Proceeding.

3. Entitlement to Indemnification

3.1 The rights provided to an Indemnified Party hereunder will, subject to applicable law, apply without reduction to an Indemnified Party provided that: (a) the Indemnified Party acted honestly and in good faith with the view to the best interests of the Corporation or other entity described in Section 3.3, as applicable; and (b) in the case of a criminal or administrative action or Proceeding that is enforced by a monetary penalty, the Indemnified party had reasonable grounds for believing that his conduct was lawful.

3.2 This indemnity will not apply to: (a) claims initiated by the Indemnified Party against the Corporation or any other entity described in Section 3.3, as applicable, except for claims relating to the enforcement of this Agreement; (b) claims initiated by the Indemnified Party against any other person or entity unless the Corporation or other entity described in Section 3.3, as applicable, has joined with the Indemnified Party in or consented to the initiation of that Proceeding, and (c) claims by the Corporation for the forfeiture and recovery by the Corporation of bonuses or other compensation received by the Indemnified Party from the Corporation due to the Indemnified Party’s violation of applicable securities or other laws. To the extent prior court or other approval is required in connection with any indemnification obligation of the Corporation hereunder, the Corporation will seek and use all reasonable efforts to obtain that approval as soon as reasonably possible in the circumstances.

3.3 The indemnities in this Agreement also apply to an Indemnified Party in respect to his service at the Corporation’s request as: (a) an officer or director of another corporation; or (b) a similar role with another entity, including a partnership, trust, joint venture or other unincorporated entity.

 

- 2 -


3.4 In respect of a Proceeding by or on behalf of the Corporation or other entity described in Section 3.3, as applicable, to procure a judgment in its favour to which the Indemnified Party is made a party because of the Indemnified Party’s association with the Corporation or other entity described in Section 3.3, as applicable, the Corporation shall, at the Indemnified Party’s request and at the Corporation’s cost, promptly make an application for approval of a court of competent jurisdiction to indemnify the Indemnified Party against all Losses in connection with such Proceeding.

4. Presumptions/Knowledge . The knowledge and/or actions, or failure to act, of any other director, officer, agent or employee of the Corporation or any other entity will not be imputed to the Indemnified Party for any purposes of determining the right to indemnification under this Agreement.

5. Notice by Indemnified Party. As soon as is practicable, upon the Indemnified Party becoming aware of any Proceeding which may give rise to indemnification under this Agreement other than a Proceeding commenced by the Corporation, the Indemnified Party will give written notice to the Corporation. Failure to give notice in a timely fashion will not disentitle the Indemnified Party to indemnification, except and only to the extent that the Corporation demonstrates that the failure results in the forfeiture by the Corporation of substantive rights or defenses. Upon receipt of such notice, the Corporation will give prompt notice of the Proceeding to any applicable insurer from whom the Corporation has purchased insurance that may provide coverage to the Indemnified Party in respect of the Proceeding.

6. Investigation by Corporation. The Corporation may conduct any investigation it considers appropriate of any Proceeding of which it receives notice under Section 5, and will pay all costs of that investigation. Upon receipt of reasonable notice from the Corporation, the Indemnified Party will, acting reasonably, co-operate fully with the investigation provided that the Indemnified Party will not be required to provide assistance that would reasonably prejudice: (a) his defence; (b) his ability to fulfill his business obligations; or (c) his business and/or personal affairs. The Indemnified Party will, for the period of time that he cooperates with the Corporation with respect to an investigation, be compensated by the Corporation at the rate per day (or partial day) equivalent to the per diem that is payable by the Corporation to members of the Board in connection with their attendance at Board meetings, including a reimbursement for travelling and other expenses properly incurred by the Indemnified Party in connection therewith, such expenses to be reimbursed in the same manner as similar expenses for attendance at Board meetings are reimbursed. The Indemnified Party will not be entitled to the per diem if he is employed as an officer of the Corporation on such day.

7. Defence of Action. Promptly after receiving written notice of any Proceeding or threatened Proceeding from the Indemnified Party, the Corporation shall, except as specified in Section 8, assume conduct of the defence thereof in a timely manner and retain counsel on behalf of the Indemnified Party, provided that such counsel is reasonably satisfactory to the Indemnified Party, to represent the Indemnified Party in respect of the Proceeding. In the event the Corporation assumes conduct of the defence on behalf of the Indemnified Party, the Indemnified Party hereby consents to the conduct thereof and of any action taken by the Corporation, in good faith, in connection therewith. The Indemnified Party shall fully cooperate in such defence including, without limitation, the provision of documents, attending examinations for discovery, making affidavits, meeting with counsel, testifying and divulging to the Corporation and its insurers all information reasonably required to defend or prosecute the Proceeding.

8. Right to Independent Legal Counsel. If the Indemnified Party is named as a party or a witness to any Proceeding, or the Indemnified Party is questioned on any of his actions, omissions or activities are in any way investigated, reviewed or examined in connection with or in anticipation of any actual or potential Proceeding, the Indemnified Party will be entitled to retain independent legal counsel at the Corporation’s expense to act on the Indemnified Party’s behalf to provide initial assessment to the Indemnified Party of the appropriate course of action for the Indemnified Party. The Indemnified Party will not be entitled to continued representation by independent counsel at the Corporation’s expense beyond the initial assessment unless (i) the parties reasonably agree that there is conflict of interest between the Corporation and the Indemnified Party, on the one hand, and the Corporation, on the other hand, and the Indemnified Party shall have been advised by its counsel that representation of both parties by the same counsel would

 

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be inappropriate due to the actual or potential differing interests between them or (ii) the Corporation has not appointed counsel pursuant to Section 7 in a timely manner.

9. Partial Indemnification. If it is determined by a court of competent jurisdiction that the Indemnified Party is entitled under any provisions of this Agreement to indemnification by the Corporation for some or a portion of the Losses incurred in respect of any claim but not for the total amount thereof, the Corporation shall nevertheless indemnify the Indemnified Party for the portion thereof to which the Indemnified Party is determined by a court of competent jurisdiction to be so entitled.

10. Payment for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the extent that the Indemnified Party is, by reason of the fact that the Indemnified Party is or was a director or officer of the Corporation or another entity, or acting in a capacity similar to an officer or director of another entity, at the Corporation’s request, a witness or participant other than as a named party in a Proceeding, the Corporation will pay to the Indemnified Party all out-of-pocket Expenses actually incurred by or on behalf of the Indemnified Party in connection therewith. The Indemnified Party will also be compensated by the Corporation at the rate per day (or partial day) equivalent to the per diem that is payable by the Corporation to members of the Board in connection with their attendance at Board meetings provided that the Indemnified Party will not be entitled to the per diem if he is a full-time employee of the Corporation on such day.

11. Losses Advances. Subject to applicable law, the Corporation will, upon request by the Indemnified Party, make advances (“Losses Advances”) to the Indemnified Party of all Losses for which the Indemnified Party seeks indemnification under this Agreement before the final disposition of the relevant Proceeding. Losses Advances may include anticipated Losses. In connection with such requests, the Indemnified Party will provide the Corporation with a written affirmation of the Indemnified Party’s good faith belief that the Indemnified Party is legally entitled to indemnification in accordance with this Agreement, along with sufficient particulars of the Losses to be covered by the proposed Losses Advance to enable the Corporation to make an assessment of its reasonableness. The Indemnified Party’s entitlement to such Losses Advance will include those Losses incurred in connection with any Proceeding by the Indemnified Party against the Corporation seeking an adjudication or award pursuant to this Agreement. The Corporation will make payment to the Indemnified Party within 10 days after the Corporation has received the foregoing information from the Indemnified Party. All Losses Advances for which indemnification is sought must relate to Losses anticipated within a reasonable time of the request.

The Indemnified Party will repay to the Corporation all Losses Advances not actually required and will repay all Losses Advances if it is determined by a court of competent jurisdiction that the conditions of Section 3 are not met. If requested by the Corporation, the Indemnified Party will provide a written undertaking to the Corporation confirming the Indemnified Party’s obligations under the preceding sentence as a condition to receiving a Losses Advance.

12. Indemnification Payments. Subject to Section 3 and with the exception of Losses Advances which are governed by Section 11, the Corporation will pay to the Indemnified Party any amounts to which the Indemnified Party is entitled hereunder promptly upon the Indemnified Party providing the Corporation with reasonable details of the claim. The Corporation will, forthwith after any request for payment to or for an Indemnified Party, seek any court approval that may be required to permit payment. If the conditions of Section 3 are not met, the Corporation will not be required to pay the Indemnified Party any amounts pursuant to this indemnification and, further, the Indemnified Party will repay all amounts paid thereto by the Corporation pursuant to this indemnification.

13. Settlement. The parties will act reasonably in pursuing the settlement of any Proceeding. The Corporation may not negotiate or effect a settlement of claims against the Indemnified Party without the consent of the Indemnified Party, acting reasonably. The Indemnified Party may negotiate a proposed settlement without the consent of the Corporation. The Corporation will consider in good faith in the best interests of the Corporation whether or not to consent to any such proposed settlement and will advise the Indemnified Party of its determination on a timely basis. If the Corporation advises the Indemnified Party that it does not consent to the settlement provided the settlement is expressly stated to be made by the

 

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Indemnified Party on his own behalf without any admission of liability by the Indemnified Party and/or the Corporation, the Indemnified Party may nonetheless effect the settlement, but the Corporation will not be liable for indemnification under this Agreement with respect to any such settlement.

14. Directors’ & Officers’ Insurance. The Corporation will ensure that its liabilities under this Agreement, and the potential liabilities of the Indemnified Party that are subject to indemnification by the Corporation pursuant to this Agreement, are, at all times while the Indemnified Party is a director or officer of the Corporation or other entity described in Section 3.3, as applicable, and for a period of 6 years thereafter, supported by a directors’ and officers’ liability insurance policy (the “Policy”) with terms and conditions reasonably appropriate for a public company of a similar size and scope as the Corporation, without regard to the financial circumstances of the Corporation. As may be required by the Policy, the Corporation will immediately notify the Policy’s insurers of any occurrences or situations that could potentially trigger a claim under the Policy and will promptly advise the Indemnified Party that the insurers have been notified of the potential claim. If the Corporation is sold or enters into any business combination or other transaction as a result of which the Policy is terminated and not replaced with a substantially similar policy equally applicable to the Indemnified Party, the Corporation will cause run off “tail” insurance to be purchased for the benefit of the Indemnified Party with substantially the same coverage for the balance of the 6-year term set out in Section 24 without any gap in coverage. The Corporation will provide to the Indemnified Party a copy of each policy of insurance providing the coverage contemplated by this Section promptly after coverage is obtained, and evidence of each annual renewal thereof, and will promptly notify the Indemnified Party if the insurer cancels, makes material changes to coverage or refuses to renew coverage (or any part of the coverage).

14.1 Deductible. If for any reason whatsoever, the Policy insurer asserts that the Indemnified Party is subject to a deductible under any existing or future Policy purchased and maintained by the Corporation for the benefit of the Indemnified Party, the Corporation shall pay the deductible for and on behalf of the Indemnified Party.

14.2 No Double Recovery. The Corporation shall not be obligated to pay the Indemnified Party for any Losses which have been paid on behalf of the Indemnified Party under any insurance policy maintained by the Corporation or otherwise.

14.3 Subrogation. To the extent permitted by law, the Corporation shall be subrogated to all rights which Indemnified Party may have under all policies of insurance or other contracts pursuant to which Indemnified Party may be entitled to reimbursement of, or indemnification in respect of, any Losses borne by the Corporation pursuant to this Agreement.

15. Arbitration. Except as otherwise required by applicable law, all disputes, disagreements, controversies or claims arising out of or relating to this Agreement, including, without limitation, with respect to its formation, execution, validity, application, interpretation, performance, breach, termination or enforcement will be determined by arbitration before a single arbitrator under the Arbitration Act (Alberta).The arbitrator will be selected by the managing partner of the Calgary office of any one of the accounting firms of Deloitte LLP, PricewaterhouseCoopers LLP, Ernst & Young LLP or KPMG LLP, or their respective successors, that is not otherwise then engaged as the auditor of the Corporation having regard to the nature of the dispute (legal, financial or other) or such other party on whom the Corporation and the Indemnified Party agree. The arbitrator will determine the rules for arbitration, including, based on the outcomes of the arbitration, the breakdown between the Corporation and the Indemnified Party of the costs for conducting the arbitration.

16. Tax Adjustment. Should any payment made pursuant to this Agreement, including the payment of insurance premiums or any payment made by an insurer under an insurance policy, be deemed to constitute a taxable benefit or otherwise be or become subject to any tax or levy, then the Corporation will pay any amount necessary to ensure that the amount received by or on behalf of the Indemnified Party, after the payment of or withholding for tax, fully reimburses the Indemnified Party for the actual cost, expense or liability incurred by or on behalf of the Indemnified Party. However, the foregoing sentence will not apply to any compensation paid as per diem to the Indemnified Party pursuant to Sections 6 or 10.

 

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17. Cost of Living Adjustment. The per diem payable pursuant to Sections 6 and 10 will be adjusted to reflect changes from the date of this Agreement in the All-items Cost of Living Index for the City of Calgary prepared by Statistics Canada or any successor index or government agency in the event that such per diem would otherwise be less than the as adjusted amount.

18. Governing Law. The Agreement will be governed by the laws of the Province of Alberta and the federal laws of Canada applicable therein.

19. Priority and Term. The Agreement will supersede any previous agreement between the Corporation and the Indemnified Party dealing with this subject matter, and will be deemed to be effective as of the date that is earlier of (a) the date on which the Indemnified Party first became a director or officer of the Corporation; or (b) the date on which the Indemnified Party first served, at the Corporation’s request, as a director or officer, or an individual acting in a capacity similar to a director or officer, of another entity.

20. Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule or law, or public policy, all other conditions and provisions of this Agreement will nevertheless remain in full force and effect so long as the economic or legal substance of this Agreement is not affected in any manner materially adverse to either party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the provisions of this Agreement are fulfilled to the fullest extent possible.

21. Binding Effect; Successors and Assigns. This Agreement shall bind and enure to the benefit of the successors, heirs, executors, personal and legal representatives and permitted assigns of the parties hereto, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all the business or assets of the Corporation. The Corporation shall require and cause any successor (whether direct or indirect, and whether by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Corporation, by written agreement in form and substance reasonably satisfactory to the Indemnified Party, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Corporation would be required to perform if no such succession had taken place. Subject to the requirements of this Section 21, this Agreement may be assigned by the Corporation to any successor (whether direct or indirect, and whether by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Corporation. This Agreement may not be assigned by the Indemnified Party without the prior written consent of the Corporation.

22. Covenant. The Corporation hereby covenants and agrees that it will not take any action, including, without limitation, the enacting, amending or repealing of any by-law, which would in any manner adversely affect or prevent the Corporation’s ability to perform its obligations under this Agreement.

23. Parties to Provide Information and Co-operate. The Corporation and the Indemnified Party shall from time to time provide such information and co-operate with the other as the other may reasonably request in respect of all matters under this Agreement.

24. Survival. The obligations of the Corporation under this Agreement, other than Section 14, will continue under the later of: (a) 10 years after the Indemnified Party ceases to be a director or officer of the Corporation or other entity described in Section 3.3, as applicable; and (b) with respect to any Proceeding commenced prior to the expiration of such 10-year period with respect to which the Indemnified Party is entitled to claim indemnification hereunder, one year after the final termination of that Proceeding. The obligations of the Corporation under Section 14 of this Agreement will continue for 6 years after the Indemnified Party ceases to be a director or officer of the Corporation or other entity described in Section 3.3, as applicable.

25. Acknowledgement. The Indemnified Party acknowledges that he has been advised to obtain independent legal advice with respect to entering into this Agreement, that he has obtained such inde-

 

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pendent legal advice or has decided not to seek such advice, and that he is entering into this Agreement with full knowledge of its contents, of his own free will and with capacity and authority to do so. The Indemnified Party further acknowledges and agrees that this Agreement satisfies in full the Corporation’s obligation of indemnification in favour of the Indemnified Party described in Section 8.02 of By-law No.1 of the Corporation.

26. Confidentiality. The Indemnified Party shall keep this Agreement confidential and shall not disclose it or any of its terms to any other person except and only to the extent required by applicable law.

27. Insolvency. The liability of the Corporation under this Agreement shall not be affected, discharged, impaired, mitigated or released by reason of the discharge or release of the Indemnified Party in any bankruptcy, insolvency, receivership or other similar proceeding of creditors. The rights of the Indemnified Party under this Agreement shall not be prejudiced or impaired by permitting or consenting to any assignment in bankruptcy, receivership, insolvency or any other creditor’s proceedings of or against the Corporation or other entity as described in Section 3.3, as applicable, or by the winding-up or dissolution of the Corporation or the other entity.

28. Multiple Proceedings. No action or proceeding brought or instituted under this Agreement and no recovery pursuant thereto shall be a bar or defence to any further action or proceeding which may be brought under this Agreement.

29. Notices. Any notice, consent, waiver or other communication given under this Agreement must be in writing and may be given by delivering it (whether in person, by courier service or other personal method of delivery) or sending it by e-mail or other similar form of electronic record transmission:

to the Indemnified Party at:

[Address]

Attention: [specify]

E-Mail: [email address]

to the Corporation at:

500 Centre Street S.E.

Calgary, Alberta T2G 1A6

Attention: President & Chief Executive Officer

Any such communication is deemed to have been delivered on the date of personal delivery or transmission, as the case may be, if such day is a Business Day and such delivery or transmission was received by the recipient party prior to 5 p.m. (Calgary time) and otherwise on the next Business Day. Any party may change its address for service by notice given in accordance with the foregoing and any subsequent notice must be sent to such party at its changed address.

30. Amendments. This Agreement may only be amended, supplemented or otherwise modified by written agreement of the parties.

31. Waiver. The failure or delay by a party in enforcing or insisting upon strict performance of any of the provisions of this Agreement does not constitute a waiver of such provision or in any way affect the validity or enforceability of this Agreement or deprive a party of the right, at any time or from time to time, to enforce or insist upon strict performance of that provision or any other provision of this Agreement. Any waiver by a party of any provision of this Agreement is effective only if in writing and signed by a duly authorized representative of such party.

32. Time of the Essence. Time is of the essence of this Agreement.

33. Counterparts. This Agreement may be executed in any number of separate counterparts (including by electronic means) and all such signed counterparts will together constitute one and the same agreement.

 

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IN WITNESS WHEREOF the parties have executed and delivered this Agreement.

 

ENCANA CORPORATION
By:  

 

  Name:
  Title:
By:  

 

  [Director/Officer]

 

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Exhibit 10.26

Encana Corporation Canadian Pension Plan

Amended and Restated as of January 1, 2011


Encana Corporation Canadian Pension Plan

Amended and Restated as of January 1, 2011

   Page i

 

 

Table of Contents

 

PART 1 - GENERAL

     1   

Article 1.1 - 

  Definitions      1   

Article 1.2 - 

  Plan Establishment and Continuance      14   

Article 1.3 - 

  Eligibility, Participation and Transfers      15   

Article 1.4 - 

  Designation of Beneficiary      18   

Article 1.5 - 

  Administration and Amendment      20   

Article 1.6 - 

  Termination of the Plan      24   

Article 1.7 - 

  Funding      26   

Article 1.8 - 

  General Conditions      29   

PART 2 - DEFINED BENEFIT PROVISIONS

     37   

Article 2.1 - 

  Required DB Contributions      37   

Article 2.2 - 

  Credited Interest and Return      39   

Article 2.3 - 

  Retirement Dates      41   

Article 2.4 - 

  Amount of Retirement Benefits      42   

Article 2.5 - 

  Normal Forms of Pension      48   

Article 2.6 - 

  Optional Forms of Lifetime Pension      50   

Article 2.7 - 

  Death Benefits      52   

Article 2.8 - 

  Termination Benefits      53   

Article 2.9 - 

  Optional DB Pension Benefits      56   

PART 3 - DEFINED CONTRIBUTION PROVISIONS

     58   

Article 3.1 - 

  Required DC Contributions      58   

Article 3.2 - 

  Employer Contributions      59   

Article 3.3 - 

  Maximum Contributions      61   


Encana Corporation Canadian Pension Plan

Amended and Restated as of January 1, 2011

   Page ii

 

 

Article 3.4 -

  Accounts      62   

Article 3.5 -

  Retirement Benefits      65   

Article 3.6 -

  Death Benefits      67   

Article 3.7 -

  Termination Benefits      68   

Appendix A — Mitigation of Maximum Defined Benefit Provisions

  

Appendix B — Involuntary Termination of Employment

  

Appendix C — Provisions for Defined Class

  

Appendix D — Provisions for Members of Predecessor Plans

  


Encana Corporation Canadian Pension Plan

Amended and Restated as of January 1, 2011

   Page 1

 

 

Part 1 - General

Article 1.1 - Definitions

For the purposes of this Plan, the expressions set out below shall have the following meanings:

 

1.1.1 “Account” means one of the Accounts which are maintained under Part 3 in the Fund:

 

  (a) “Employee Account” means the separate Account maintained on behalf of a DC Participant in accordance with subsection 3.4.1(a).

 

  (b) “Company Account” means the separate Account maintained on behalf of a DC Participant in accordance with subsection 3.4.1(b).

 

  (c) “Forfeiture Account” means the separate Account maintained on behalf of the Company in accordance with Section 3.4.3.

 

  (d) “Voluntary Account” means the separate account maintained on behalf of a DB or DC Participant in accordance with subsection 3.4.2(a)(i).

 

  (e) “Voluntary Locked-In Account” means the separate account maintained on behalf of a DB or DC Participant in accordance with subsection 3.4.2(a)(ii).

 

1.1.2 “Accumulated Required Contributions” means the sum of a DB Participant’s Required DB Contributions to the Plan and a Prior Plan, plus Credited Interest thereon.

 

1.1.3 “Accumulated Optional Contributions” means the sum of a Former AEC Participant’s Optional DB Contributions to the AEC Plan, plus or minus Credited Return thereon.

 

1.1.4 “Actuarial Equivalent Value” means a value, actuarially equivalent to the comparator, as determined by the Company after consultation with the Actuary. The sex of the Participant, Designated Beneficiary and/or Spouse, as applicable, shall not be taken into account in determining the Actuarial Equivalent Value.


Encana Corporation Canadian Pension Plan

Amended and Restated as of January 1, 2011

   Page 2

 

 

1.1.5 “Actuary” means the person, firm or corporation so designated by the Company, who shall be, or in the case of a firm or corporation, a member or employee of which shall be, a Fellow of the Canadian Institute of Actuaries.

 

1.1.6 “AEC Plan” means the Alberta Energy Company Ltd. Retirement Plan, as amended to December 31, 2002.

 

1.1.7 “Applicable Pension Laws” means the Employment Pension Plans Act (Alberta), and any relevant regulations thereto, as may be amended from time to time, or any similar statute adopted by the federal or any provincial government deemed applicable in a particular circumstance, including any relevant regulations thereto, as may be amended from time to time.

 

1.1.8 “Benefit Accrual Rate” means the benefit accrual rate of 1.0%, 1.5% or 2.0%, as applicable, at which defined benefit pension benefits were accrued under the AEC Plan by a DB Participant in respect of AEC Pensionable Service.

 

1.1.9 “Board Committee” means any committee of directors of the Board of Directors which has been duly appointed and delegated certain responsibilities by the Board of Directors, as may be constituted from time to time in accordance with subsection 1.5.7(a).

 

1.1.10 “Board of Directors” means the Board of Directors of Encana Corporation, as may be constituted from time to time.

 

1.1.11 “Canada Pension Plan” means the Canada Pension Plan (Canada) and any relevant regulations thereto, as may be amended from time to time.

 

1.1.12 “Commuted Value” means the lump sum Actuarial Equivalent Value of a DB Pension Benefit, which is in accordance with Applicable Pension Laws and Revenue Rules and, if applicable, the value of a DC Participant’s Accounts eligible for transfer from the Plan.

 

1.1.13

“Company” means Encana Corporation and any affiliated or subsidiary company or any partnership which is majority owned by Encana Corporation, its affiliated and subsidiary companies, or any of them, and which is designated as a participating company or partnership by Encana Corporation or is deemed to be a participating company under Revenue Rules. Notwithstanding the foregoing, where any


Encana Corporation Canadian Pension Plan

Amended and Restated as of January 1, 2011

   Page 3

 

 

  reference in the Plan is made to any action to be taken, consent, approval or opinion to be given, discretion or decision to be exercised by the Company, “Company” means Encana Corporation, acting through the Board of Directors, or any person duly authorized by the Board of Directors, Board Committee or Management Pension Committee, as applicable, for the purposes of the Plan.

 

1.1.14 “Continuous Service” means that continuous period of time during which a Participant is an Employee, measured by the Company from the date of the commencement of his employment, as determined by the Company, to the date of termination of such employment, whether such termination is by retirement, death or otherwise.

 

  Continuous Service shall include:

 

  (a) any period prior to January 1, 2003 that was recognized as continuous service under a Prior Plan;

 

  (b) any period of temporary suspension of employment or temporary layoff of an Employee, where and as may be required by Applicable Pension Laws;

 

  (c) any approved leave of absence of an Employee, provided the Company has designated such period of leave of absence as Continuous Service; and

 

  (d) any sickness or accident leave of an Employee recognized by the Company.

 

  Employment with the Company occurring before a break in Continuous Service shall constitute a separate period of Continuous Service for calculation purposes.

 

1.1.15 “Credited Interest” means the amount of interest calculated in respect of Accumulated Required Contributions and Required DB Contributions in accordance with Sections 2.2.1 to 2.2.4 for the period in question.

 

1.1.16 “Credited Return” means the amount of investment return net of investment losses, which may be positive or negative, calculated in respect of Accumulated Optional Contributions and Optional DB Contributions in accordance with Section 2.2.5.

 

1.1.17 “DB Participant” means a Participant who is accruing DB Pension Benefits.


Encana Corporation Canadian Pension Plan

Amended and Restated as of January 1, 2011

   Page 4

 

 

1.1.18 “DB Pension Benefits” means the benefits provided in accordance with Part 2 and the applicable provisions of Appendices A, B, C and D.

 

1.1.19 “DC Participant” means a Participant who is accruing DC Pension Benefits.

 

1.1.20 “DC Pension Benefits” means the benefits provided in accordance with Part 3 and the applicable provisions of Appendix C.

 

1.1.21 “Designated Beneficiary” means a person entitled to receive benefits payable hereunder, who has been so designated by the Participant in accordance with Article 1.4.

 

1.1.22 “Disability Earnings” means, in respect of a Participant who is totally disabled, as certified by a qualified medical doctor licensed to practice medicine in Canada, and recognized as such by the Company’s long-term disability insurance provider, deemed Earnings which are adjusted on each January 1 that he remains so disabled on and after:

 

  (a) January 1, 2003 in the case of a Former AEC Participant; and

 

  (b) January 1, 2002 otherwise.

 

  Such adjusted deemed Earnings shall be equal to the Participant’s rate of Earnings as at the date of disability adjusted by the compounded increase, if any, in the Consumer Price Index less 1% per year between (c) and (d) below, but not less than zero:

 

  (c) the October 31 coincident with or next following his continual receipt for two years of long-term disability benefits from a Company-sponsored long-term disability insurance program; and

 

  (d) the October 31 immediately preceding the date of adjustment.

 

1.1.23 “Earliest Pension Commencement Date” means:

 

  (a) (i) in the case of a transfer by a Participant last employed by the Company in Alberta, the date upon which such Participant attains age 50;


Encana Corporation Canadian Pension Plan

Amended and Restated as of January 1, 2011

   Page 5

 

 

  (ii) in the case of a transfer by the Spouse of a Participant last employed by the Company in Alberta, the date upon which such Spouse attains age 50;

 

  (b)                 (i)   

in the case of a transfer by a Participant last employed by the Company in a jurisdiction other than Alberta, the date upon which such Participant attains age 55, or such other minimum age as specified under Applicable Pension Laws; and

 

  (ii) in the case of a transfer by the Spouse of a Participant last employed by the Company in a jurisdiction other than Alberta, the earliest of the date upon which either such Spouse or such Participant attains age 55, or such other minimum age as specified under Applicable Pension Laws.

 

1.1.24 “Earnings” means, subject to Appendix C, the basic periodic salary of the Participant, excluding any bonus, living allowance, overtime payment, shift differential, payment in lieu of vacation, contribution or any premium paid by the Company in respect of any employee benefit or otherwise, any honorarium, director’s fee, commission, or any other type of additional earnings, payments or remuneration of any nature whatsoever which is granted or paid to the Participant, whether as a DB Participant or a DC Participant, as determined by the Company. Subject to limits imposed under Revenue Rules, “Earnings” includes the Participant’s portion of earnings with a foreign affiliate or subsidiary of the Company that is recognized by the Company as the Participant’s basic periodic salary for pension purposes under this Plan and, in which case, the earnings are deemed to have been received from the Company.

 

1.1.25 “Employee” means any person who is an employee of a Company, as determined by the Company. Any person who is:

 

  (a) suffering from a physical or mental impairment that prevents the individual from performing the duties of the employment in which the person was engaged with the Company before the commencement of the impairment;

 

  (b) receiving a disability benefit from a Company-sponsored or government-sponsored disability insurance program; and


Encana Corporation Canadian Pension Plan

Amended and Restated as of January 1, 2011

   Page 6

 

 

  (c) recognized by the Company as an employee;

shall be deemed to be an Employee.

 

1.1.26 “Excess Assets” means, while the Plan is ongoing, the amount, if any, by which, in the opinion of the Actuary and subject to Applicable Pension Laws, the going concern assets of the Fund which are not allocated to DC Participants’ Accounts exceed the going concern actuarial liabilities in respect of DB Pension Benefits.

 

1.1.27 “Final Average Annual Earnings” means one-fifth of the highest sum of Earnings received by the DB Participant for any period of 60 consecutive completed calendar months during the 120 completed calendar months immediately preceding the date of his retirement, death before retirement, termination of employment, or the termination of the Plan, whichever first occurs. If the DB Participant has less than 60 months of Earnings, the average used shall be the annual average of the DB Participant’s entire period of Earnings. Periods of Continuous Service without pay shall not be included in determining a DB Participant’s Final Annual Average Earnings nor shall such periods of Continuous Service without pay be deemed to have interrupted the consecutiveness of the DB Participant’s averaging period.

 

  For the purposes of the foregoing paragraph only, with respect to any period of Continuous Service during which a DB Participant is employed on a Part-time basis, Earnings for such period shall be determined as the actual Earnings received by the DB Participant divided by the Part-time Service Fraction.

 

1.1.28 “Final Average Annual YMPE” means the average YMPE in effect during the 36 completed calendar months immediately preceding the DB Participant’s retirement, death before retirement, termination of employment, or the termination of the Plan, whichever first occurs.

 

1.1.29 “Former AEC Participant” means a DB Participant who has AEC Pensionable Service.

 

1.1.30 “Fund” means the corpus and all earnings, appreciations or additions thereon and thereto held by the Funding Agency under the Funding Agreement.

 

1.1.31 “Funding Agency” means the trustee, or successor thereof, appointed by the Company to hold the Fund pursuant to the Funding Agreement.


Encana Corporation Canadian Pension Plan

Amended and Restated as of January 1, 2011

   Page 7

 

 

1.1.32 “Funding Agreement” means the agreement or contract entered into between the Company and the Funding Agency establishing and maintaining the Fund, and amendments thereto.

 

1.1.33 “Latest Pension Commencement Date” means the first day of December of the calendar year during which a Participant attains age 71, or such other date that may be prescribed by Revenue Rules.

 

1.1.34 “Locked-In Retirement Fund” means a financial arrangement to which locked-in amounts transferred from the Plan may be made, being limited to:

 

  (a) a locked-in retirement account, as that term is described and regulated in Applicable Pension Laws;

 

  (b) a registered pension plan, if and to the extent the transferee plan will accept the transfer;

 

  (c) for Participants employed by the Company outside of Alberta, a life income fund, as that term is described and regulated in Applicable Pension Laws;

 

  (d) for Participants employed by the Company outside of Alberta, a locked-in retirement income fund, as that term is described and regulated in Applicable Pension Laws;

 

  (e) for Participants employed by the Company outside of Alberta, an insurance company licensed to carry on a life insurance business in Canada, to purchase an immediate or deferred life annuity; or

 

  (f) for Participants employed by the Company outside of Alberta, such other registered vehicle as may be approved under Applicable Pension Laws and Revenue Rules;

provided, however, that:

 

  (g) a Participant shall not make a transfer under subsections (c) and (d) any sooner than his Earliest Pension Commencement Date;


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  (h) a Participant shall not make a transfer under subsections (c) through (f) unless any spousal waiver as and in the form required under Applicable Pension Laws has been completed and filed with the Company;

 

  (i) retirement income shall not be paid any sooner than the Earliest Pension Commencement Date; and

 

  (j) the administrator of such arrangement agrees, in writing, to administer such transferred amount in accordance with Applicable Pension Laws.

 

1.1.35 “Management Pension Committee” means a committee of representatives of management of the Company or other officers, employees or representatives of the Company which has been duly appointed and delegated certain responsibilities by the Board of Directors, or Board Committee, as may be constituted from time to time in accordance with subsection 1.5.7(b).

 

1.1.36 “Normal Retirement Date” means the first day of the month coincident with or next following the date on which the Participant attains age 65.

 

1.1.37 “Optional DB Contributions” means optional ancillary contributions made by a Former AEC Participant to the AEC Plan.

 

1.1.38 “Optional DB Pension Benefits” means DB Pension Benefits provided to a Former AEC Participant in accordance with Article 2.9.

 

1.1.39 “Participant” means an Employee who has fulfilled the eligibility requirements for joining the Plan set forth in Article 1.3, and whose application for participation in the Plan has been recorded by the Company, and includes a living former Employee who continues to be entitled to benefits under the Plan.

 

1.1.40 “Part-time” means engaged to work on less than a full-time basis, as determined by the Company.

 

1.1.41 “Part-time Service Fraction” means, in respect of a DB Participant who is employed on a Part-time basis for all or any portion of a Plan Year, the ratio, as determined by the Company, that:

 

  (a) the DB Participant’s normally scheduled hours of work during such period of Part-time employment; bear to


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  (b) the normally scheduled full-time hours of work during such period for such DB Participant’s position;

such ratio not to exceed 1.

 

1.1.42 PEC Plan ” means the Retirement Pension Plan for Employees of PanCanadian Energy Corporation, as amended to December 31, 2002.

 

1.1.43 Pensionable Service ” means, subject to Section 2.1.2, the number of years and fractions of years (to the nearest full month) during which a DB Participant makes Required DB Contributions including, where applicable, pensionable service recognized as such under a Prior Plan. Pensionable Service occurring before a break in Continuous Service shall constitute a separate period of Pensionable Service for calculation purposes. With respect to any period of Continuous Service during which a DB Participant is employed on a Part-time basis, Pensionable Service for such period shall be determined in accordance with the foregoing provisions of this Section multiplied by the Part-time Service Fraction.

 

  (a) “AEC Pensionable Service” means Pensionable Service rendered by the DB Participant under the AEC Plan.

 

  (b) “Encana Pensionable Service” means Pensionable Service rendered by the DB Participant on or after January 1, 2003 plus Pensionable Service rendered under the PEC Plan before January 1, 1966 and between June 1, 2001 and December 31, 2002, inclusive.

 

  (c) “PEC Pensionable Service” means Pensionable Service rendered by the DB Participant under the PEC Plan that is not Encana Pensionable Service.

 

1.1.44 “Plan” means the Encana Corporation Canadian Pension Plan established with effect from January 1, 2003 including any changes, amendments or modifications thereto which have been made or which may from time to time be made by the Company.

 

1.1.45 “Plan Year” means the calendar year.

 

1.1.46 “Prior Plan” means either of the AEC Plan or the PEC Plan.


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1.1.47 “Required DB Contributions” means the required contributions of a DB Participant to the Plan or to a Prior Plan while a defined benefit participant thereunder.

 

1.1.48 “Required DC Contributions” means the required contributions of a DC Participant to the Plan or to a Prior Plan while a defined contribution participant thereunder.

 

1.1.49 “Revenue Rules” means the provisions of the Income Tax Act (Canada), and any relevant regulations thereto, as may be amended from time to time, pertaining to pension plans or funds registered under the Income Tax Act (Canada) as they may be applicable to the Plan.

 

1.1.50 “Spouse” means:

 

  (a) in relation to a Participant last employed by the Company in Alberta, that person who, at the earlier of the commencement of the Participant’s pension or the date of the Participant’s death, meets one of the following eligibility requirements:

 

  (i) the person who is married to the Participant and has not been living separate and apart from the Participant for three or more consecutive years; or

 

  (ii) if there is no person to whom subsection (i) applies, the person who, immediately preceding the relevant time, has lived with the Participant in a conjugal relationship:

 

  (A) for a period of at least one year; or

 

  (B) of some permanence, if there is a child of the relationship by birth or adoption;

 

  (b) in relation to a Participant last employed by the Company in Saskatchewan, the person who, at the earlier of the commencement of the Participant’s pension and the date of the Participant’s death, meets one of the following eligibility requirements:

 

  (i) the person who is married to the Participant; or


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  (ii) if the Participant is not married, the person with whom the Participant is cohabiting as husband and wife in a conjugal relationship and who has been cohabiting continuously with the Participant as his spouse for at least one year;

 

  (c) in relation to a Participant last employed by the Company in Nova Scotia, the person who, at the earlier of the commencement of the Participant’s pension and the date of the Participant’s death, meets one of the following eligibility requirements:

 

  (i) the person who is married to the Participant; or

 

  (ii) the person who is married to the Participant by a marriage that is voidable and has not been annulled by a declaration of nullity; or

 

  (iii) the person who has gone through a form of marriage with the Participant, in good faith, that is void, provided that the person is cohabiting with the Participant in a conjugal relationship, or if they have ceased to cohabit, has cohabited with the Participant in a conjugal relationship within the 12-month period immediately preceding the relevant time; or

 

  (iv) the person who has cohabited with the Participant in a conjugal relationship for a period of at least one year, neither of the Participant and the person being a Spouse;

 

  (d) in relation to a Participant last employed by the Company in Ontario, the person, who, at the earlier of the commencement of the Participant’s pension and the date of the Participant’s death, meets one of the following eligibility requirements:

 

  (i) the person who is married to the Participant; or

 

  (ii) the person who is not married to the Participant and is living with the Participant in a conjugal relationship:

 

  (A) continuously for a period of not less than one year; or


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  (B) in a relationship of some permanence, if they are the natural or adoptive parents of a child, both as defined in the Family Law Act (Ontario);

 

    provided that the person is not living separate and apart from the Participant at that time;

 

  (e) in relation to a Participant last employed by the Company in British Columbia, the person who, at the earlier of the commencement of the Participant’s pension and the date of the Participant’s death, meets one of the following eligibility requirements:

 

  (i) the person who is married to the Participant and who, if living separate and apart from the Participant at the relevant time, did not live separate and apart from the Participant for longer than the two-year period immediately preceding the relevant time; or

 

  (ii) if there is no person under subsection (i), the person who is living and cohabiting with such Participant in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, and who lived and cohabited in that relationship in the one-year period immediately preceding the relevant time.

 

  (f) in relation to a Participant last employed by the Company in Newfoundland and Labrador, that person who, at the earlier of the commencement of the Participant’s pension or the date of the Participant’s death, meets one of the following eligibility requirements:

 

  (i) the person who is married to the Participant;

 

  (ii) the person who is married to the Participant by a marriage that is voidable and has not been voided by a judgment of nullity;

 

  (iii) the person who has gone through a form of marriage with the Participant, in good faith, that is void and is cohabiting or has cohabited with the Participant within the preceding year;

 

  (iv)

in relation to a Participant who has a Spouse, as described in subsections (i), (ii) or (iii) above, means a person who is not the


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  Spouse of the Participant, who has cohabited continuously with the Participant in a conjugal relationship for not less than three years; or

 

  (v) in relation to a Participant who does not have a Spouse, as described in subsections (i), (ii) or (iii) above, means a person who has cohabited continuously with the Participant in a conjugal relationship for not less than one year.

 

    For the purposes of subsections (iv) and (v), the person must be cohabiting with the Participant or must have cohabited with the Participant within the preceding year.

 

1.1.51 “Superintendent” means the Superintendent of Pensions for the Province of Alberta.

 

1.1.52 “Surplus Assets” means, upon termination and winding-up of the Plan, the amount, if any, by which, in the opinion of the Actuary and as stated in the wind-up report filed with the Superintendent, the assets of the Fund which are not allocated to DC Participants’ Accounts exceed the actuarial liabilities in respect of DB Pension Benefits.

 

1.1.53 “Three-Year Average Annual YMPE” means the average YMPE in the calendar year of retirement and the two immediately preceding calendar years.

 

1.1.54 “Valuation Date” means a day upon which the Funding Agency determines the value of each Account within the Fund in accordance with Section 3.4.5.

 

1.1.55 “Vesting Date” means the date upon which a Participant has completed two years of Continuous Service, or such earlier date which the Company, in its sole discretion, may determine.

 

1.1.56 “YMPE” means the Year’s Maximum Pensionable Earnings applicable at the time under the Canada Pension Plan.


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Article 1.2 - Plan Establishment and Continuance

 

1.2.1 Plan Establishment

Effective January 1, 2003, the Retirement Pension Plan for Employees of PanCanadian Energy Corporation (the “PEC Plan”) is hereby amended, restated and renamed as the Encana Corporation Canadian Pension Plan (this “Plan”). Also effective January 1, 2003, the Alberta Energy Company Ltd. Retirement Plan (the “AEC Plan”) is hereby merged into this Plan. The primary purpose of the Plan is to provide periodic payments to Participants of the Plan after retirement and until death in respect of their service as Participants. The purpose of the Plan is also to assist Participants in providing for their long-term retirement income.

 

1.2.2 Prior Plan Assets and Liabilities

 

  (a) The assets and liabilities of the PEC Plan and the AEC Plan (collectively, the “Prior Plans”) formerly associated with Participants’ defined contribution accounts thereunder have been merged under Part 3 and the applicable provisions of Appendix C of this Plan.

 

  (b) All other assets and liabilities formerly associated with the Prior Plans have been merged under Part 2 and the applicable provisions of Appendices A, B, C and D of this Plan.

 

  (c) For greater certainty, the DB and DC Pension Benefits in respect of Participants who retired, died or terminated employment under the provisions of the Prior Plans are continued under this Plan, but the provisions of this Plan shall not alter such DB and DC Pension Benefits unless specifically provided herein.

 

1.2.3 Prior Plan Guarantees

Nothing in this Plan shall have the effect of reducing any benefit provided under the Prior Plans to December 31, 2002 based on actual service rendered and earnings paid to such date, including any ancillary benefit for which the Participant had met, at such date, all the eligibility requirements under the Prior Plans.


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Article 1.3 - Eligibility, Participation and Transfers

 

1.3.1 Eligibility

 

  (a) Subject to subsection (b), an Employee shall be eligible to join the Plan:

 

  (i) in the case of a permanent Employee, upon appointment as a permanent Employee; and

 

  (ii) in the case of a temporary Employee, upon completion of two years of Continuous Service.

 

  (b) Notwithstanding subsection (a), an Employee shall not be eligible to join the Plan so long as he is actively accruing pensionable service or contributions in another pension plan sponsored by the Company or by a company or partnership that is affiliated with the Company.

 

1.3.2 Commencement

Subject to Appendix C, a permanent Employee shall be required to join the Plan on the first day of the month coincident with or next following his appointment as a permanent Employee. A temporary Employee may elect to join the Plan effective on the first day of any month coincident with or next following his date of eligibility. Notwithstanding the foregoing, all Employees, whether permanent or temporary, shall not simultaneously accrue pension benefits in more than one Company-sponsored registered pension plan.

 

1.3.3 Enrolment

 

  (a) Subject to Section 1.3.4, each participant in a Prior Plan shall become a DB Participant or a DC Participant hereunder depending upon whether he was, respectively, a defined benefit participant or a defined contribution participant under such Prior Plan.

 

  (b) Each eligible Employee, upon joining the Plan on or after January 1, 2003, shall become a DC Participant.


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1.3.4 Transfer of Membership Between Provisions

 

  (a) Effective January 1, 2003 or January 1 of any year thereafter, a DB Participant shall be entitled to elect to discontinue accruing DB Pension Benefits and to become thereafter a DC Participant accruing DC Pension Benefits. Any such election shall be made by the DB Participant within 30 days immediately prior to the elected effective date or at such other time as may be approved by the Company in its discretion.

 

  (b) Subject to Appendix C, a DC Participant may not elect to become a DB Participant.

 

1.3.5 Transfer of Benefits Between Provisions

 

  (a) If a DB Participant becomes a DC Participant pursuant to subsection 1.3.4(a), he shall remain entitled to his DB Pension Benefits earned prior to the date of becoming a DC Participant.

 

  (b) If a DC Participant becomes a DB Participant pursuant to Appendix C, he shall remain entitled to his DC Pension Benefits earned prior to the date of becoming a DB Participant.

 

1.3.6 Break In Service

If a Participant’s Continuous Service ceases, that Participant’s right to additional benefits under the Plan shall cease as of the date of cessation of Continuous Service. If a former Employee is subsequently re-employed by the Company, his participation in the Plan shall be as that of a new Employee, and if he had previously acquired a benefit under the Plan, such benefit shall not be modified by his subsequent re-employment by the Company.

 

1.3.7 Continuing Membership

Once an Employee becomes a Participant, withdrawal from the Plan is not permitted while he remains an Employee.


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1.3.8 Continuance of Accruals During Leave of Absence

A Participant who is on an approved leave of absence during which the Participant does not have Earnings, and where legislation applicable to the Participant requires that the Participant be permitted to accrue DB or DC Pension Benefits during such period, or where legislation applicable to the Participant permits that the Participant be permitted to accrue DB or DC Pension Benefits during such period and the Company so permits, shall accrue the DB or DC Pension Benefits that he would have accrued during such period had he been in active employment, provided that in the case of a DB Participant he elects to make the Required DB Contributions in respect of such period. Such Required DB Contributions, if applicable, shall be based on the Participant’s Earnings rate in force immediately prior to the commencement of such period of leave of absence. In no event, however, shall the total periods for which the Participant accrues DB or DC Pension Benefits under this Section or the corresponding provision of a Prior Plan exceed the sum of:

 

  (a) five years; and

 

  (b) the number of months of parenting leaves, as defined in the Revenue Rules, subject to a maximum of 36 months of such parenting leaves and a maximum of 12 months for any one parenting leave.

Further, in no event shall the accrual of DB or DC Pension Benefits by a Participant pursuant to this Section indicate or imply that such Participant had Earnings for purposes of the Plan, including, without limitation, for purposes of calculating the Participant’s Final Average Annual Earnings, in respect of any period of leave of absence during which DB or DC Pension Benefits are accrued pursuant to this Section.


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Article 1.4 - Designation of Beneficiary

 

1.4.1 Designation of Beneficiary

A Participant shall, on the application for participation, designate a beneficiary to receive the benefits payable under the Plan in the event of the Participant’s death:

 

  (a) The Designated Beneficiary of a Participant without a Spouse may be the Participant’s estate or any person.

 

  (b) The Designated Beneficiary of a Participant having a Spouse shall be such Spouse.

 

  (c) Notwithstanding subsections (a) and (b), for a Participant last employed by the Company in Alberta, British Columbia, Saskatchewan or Ontario, the Spouse of such Participant may waive, in prescribed form, and in accordance with Applicable Pension Laws, her right to be the Designated Beneficiary with respect to death benefits in accordance with Section 2.7.1 or 3.6.1, as applicable, in which case the Participant shall name a Designated Beneficiary pursuant to subsection (a) as though the Participant has no Spouse.

 

1.4.2 Change of Designated Beneficiary

 

  (a) Each Participant shall from time to time advise the Company of the full name and, for tax purposes only, the social insurance number of his Spouse, if any.

 

  (b) A Participant without a Spouse may, by written notice given to the Company during his lifetime, alter or revoke his Designated Beneficiary. Any such written notice shall be in such form and executed in such manner as the Company may reasonably require.

 

1.4.3 Provision for Payment in Event of Death of Beneficiary

If the Designated Beneficiary pre-deceases the Participant and the Participant has designated no other Designated Beneficiary, benefits payable under the Plan after the death of the Participant shall be paid to the estate of the Participant.


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1.4.4 Conflicting Claims

If there is a dispute as to whether a person is a Spouse, Designated Beneficiary or other person entitled to payments hereunder, or where two or more persons make conflicting or adverse claims in respect of a benefit, or where a person makes a claim that is inconsistent with information provided by the Participant, the Company shall take such steps or action it deems reasonable, including without limitation, obtaining court direction, and neither the Company, the Board of Directors, Board Committee, the Plan nor the Fund shall be held liable for any delays in payment of benefits hereunder or for loss or damage of any nature whatsoever as a result of any such dispute or the Company’s steps, actions or decisions in respect of the resolution of same.


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Article 1.5 - Administration and Amendment

 

1.5.1 Primacy of Legislation

The Company shall administer the Plan in such a manner that, in the event there is a conflict between the Plan and any applicable legislation, the applicable legislation shall govern.

 

1.5.2 Jurisdiction

 

  The court of competent jurisdiction to interpret and make determinations regarding the Plan shall be the Court of Queen’s Bench of Alberta. The Plan shall be construed in accordance with the legislation of the Province of Alberta, unless the legislation of another jurisdiction has clear precedence. In the event of a conflict of applicable legislation, the Plan shall be construed and administered in accordance with the legislation of the Province of Alberta.

 

1.5.3 Responsibility for Plan

 

  While the Plan remains in force, the Company shall have responsibility for, and control of, the Plan’s operation and administration, and shall have the power and duty to take all action and to make all decisions and interpretations which shall be necessary or appropriate in order to administer and carry out the provisions of the Plan, including the power to prescribe required forms and to make and enforce such rules and regulations as it may deem necessary. The Board of Directors may delegate certain of its duties in respect of the Plan to a Board Committee, in accordance with Section 1.5.7.

 

1.5.4 Amendment of the Plan

 

  The Company may amend the Plan, or any part hereof, at any time, and from time to time, to such extent as it may deem advisable, provided, however, that no amendment shall have the effect of reducing any benefit accrued to the date of the amendment by a Participant, Spouse or Designated Beneficiary based on actual service rendered and earnings paid to the date of the amendment. For greater certainty, any action taken in accordance within this Section may reduce any ancillary benefits as described in Applicable Pension Laws and as may be provided hereunder, unless the Participant affected has satisfied all the eligibility


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  requirements hereunder for such ancillary benefits. Each amendment to the Plan shall be in writing and shall be executed on behalf of the Company by a member of the Board of Directors or Board Committee, as applicable, or by any officer or employee of the Company or other person or persons duly authorized by the Board of Directors or Board Committee, as applicable, to execute Plan amendments.

 

1.5.5 Amendment Required to Maintain Registration

 

  Notwithstanding any other provisions of the Plan, the Company shall amend the Plan as is necessary to maintain the registration of the Plan under Applicable Pension Laws and/or under Revenue Rules. Section 1.5.4 shall not act to restrict the Company’s ability to amend the Plan, including, but without limiting the generality of the foregoing, an amendment providing for benefits to be reduced, when the purpose of such amendment is to maintain the registration of the Plan.

 

1.5.6 Effective Date of Amendment

 

  An amendment to the Plan shall normally be effective on the date specified in the amendment however, if the amendment creates additional benefits in respect of a period of employment after 1989 which must be certified by the Minister of National Revenue in accordance with Revenue Rules, the amendment shall not be effective until such certification has been received and no benefits shall be paid as a result of that amendment prior to certification. The Company shall not make any contributions to the Plan in respect of the amendment until such certification has been applied for.

 

1.5.7 Board Committee

 

  (a) The Board of Directors may appoint, and may delegate certain of its responsibilities in respect of the Plan to, a Board Committee, such responsibilities to be specified in a written mandate approved by the Board of Directors.

 

  (b) The Board of Directors or Board Committee, as applicable, may, by way of approved written mandate, delegate certain responsibilities in respect of the Plan to a Management Pension Committee.


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  (c) No compensation shall be paid out of the Fund to any Employee member of the Management Pension Committee for his services to such committee, but the reasonable fees of a non-Employee member for such services may be paid by the Company or from the Fund, as directed by the Company.

 

  (d) Any expenses incurred by the Board of Directors, Board Committee or Management Pension Committee, as applicable, or any member thereof, in respect of his services to such committee may be paid by the Company or reimbursed from the Fund, as directed by the Company.

 

  (e) A member of the Board of Directors, Board Committee or Management Pension Committee, as applicable, and any duly authorized officer or employee of the Company, may rely in good faith on the statements, opinions or reports of the Actuary, the Funding Agency, an accountant, an appraiser, a lawyer, an investment manager or other professional advisor or consultant retained by the Board of Directors, Board Committee, the Company, or by a duly authorized officer or employee of the Company (including, without limitation, the Management Pension Committee), as applicable, to provide professional services or advice in respect of the Plan, the Fund, or any matter pertaining thereto.

 

1.5.8 No Personal Liability

Subject to Applicable Pension Laws, the Board of Directors, Board Committee or any member thereof, or any duly authorized officer or employee of the Company (including, without limitation, the Management Pension Committee or any member thereof) shall not be liable to any person whatsoever for anything done or omitted to be done in respect of the administration of the Plan, the Fund, or any matter pertaining thereto, except where the act or omission was due to fraud, wilful misconduct or gross negligence on the part of the person against whom a claim is made.

 

1.5.9 Indemnification

The Company shall indemnify and save harmless the members of the Board of Directors and Board Committee, as applicable, and any other duly authorized officer, or employee of the Company (including, without limitation, members of the Management Pension Committee), whose responsibilities or duties on behalf of the


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Company involve any aspect of the administration of the Plan, the Fund or any matter pertaining thereto, from personal liability, including all legal costs, fees and related expenses, in respect of their respective acts or omissions in respect of the administration of the Plan, the Fund or any matter pertaining thereto, except where the act or omission was due to fraud, wilful misconduct or gross negligence on the part of such member, director, officer or employee.

 

1.5.10 Company Records

Whenever the records of the Company are used for the purposes of the Plan, such records shall be conclusive of the facts with which they are concerned.

 

1.5.11 Information Provided by the Participant

In the absence of actual notice to the contrary, the Company shall authorize payment in accordance with information provided by the Participant. In the event of a dispute, or where two or more persons make adverse claims in respect of a benefit, or where a person makes a claim that is inconsistent with information provided by the Participant, the provisions of Section 1.4.4 shall apply.


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Article 1.6 - Termination of the Plan

 

1.6.1 Right of Termination

 

  The Company may terminate, merge, or spin-off the Plan, or any part hereof, at any time, and in that event all accrued benefits shall be calculated using actual service rendered and earnings paid to the effective date of such termination, merger or spin-off.

 

1.6.2 Effect of Termination

 

  Upon termination of all or part of the Plan, each affected Participant shall be fully vested. An affected Participant who has completed two years of Continuous Service shall also be locked-in.

 

1.6.3 Wind-up

 

  Upon the Plan being terminated, the Company shall wind up the Plan in accordance with Applicable Pension Laws.

 

1.6.4 Termination Priorities

 

  In the event the Plan is terminated, the Company shall make the required contributions to the Fund pursuant to Section 1.7.6. Thereafter, the available assets shall be used in the following order of priority:

 

  (a) firstly, to provide for benefits equal to the value of all Accounts, excluding the Forfeiture Account;

 

  (b) secondly, after satisfying the requirements of subsection (a), to provide for benefits equal to the value of all Accumulated Required and Optional Contributions;

 

  (c) thirdly, after satisfying the requirements of subsections (a) and (b), to provide for the balance of the DB Pension Benefits accrued to the date of termination based on actual service rendered and earnings paid to such date, all determined in accordance with, and payable in accordance with the priorities established under Applicable Pension Laws; and


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  (d) fourthly, in the event any Surplus Assets remain after all benefits referred to in subsections (a), (b) and (c) have been provided, such Surplus Assets may, subject to the requirements of Applicable Pension Laws, be withdrawn from the Fund for the benefit of the Company, and upon such withdrawal shall thereupon become assets of the Company.

 

1.6.5 Interpretation

The provisions of Section 1.6.4 apply without distinction between Participants, Spouses or Designated Beneficiaries.

 

1.6.6 Effective Date of Termination

In the event the Plan, or any part hereof, is terminated pursuant to Section 1.6.1, the effective date of such termination shall be set by the Company. In the event the termination is directed by the Superintendent, the effective date of such termination shall be the earlier of the date on which all avenues of appeal by the Company are exhausted or the date on which the Company vacates its right of appeal.


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Article 1.7 - Funding

 

1.7.1 Plan Assets

 

  All assets of, and contributions to, the Plan shall be held in the Fund in trust and administered by the Funding Agency in accordance with the terms of the Funding Agreement.

 

1.7.2 Purpose of the Fund

 

  (a) The Fund is established for the benefit of the Participants and their respective Spouses or Designated Beneficiaries, which benefit shall be deemed to include payment or reimbursement of all third party costs directly attributable to the administration of the Plan. The Company shall have primary responsibility for the payment of such costs, but may direct that the costs be paid from the Fund. Any third party costs directly attributable to the Plan and paid directly by the Company may be reimbursed by the Fund.

 

  (b) Where such costs are attributable to Part 3, the Company may direct that the costs shall be charged in an equitable manner to the Accounts. Notwithstanding the foregoing, the Company may elect to pay and/or charge costs differently between active and inactive DC Participants provided the costs charged to the Accounts of inactive DC Participants do not exceed a reasonable allocation of the actual costs incurred.

 

1.7.3 No Fund Allocation

No person shall have any interest in, nor right to, any part of the Fund except, and to the extent, provided in the Plan.

 

1.7.4 Change of Funding Agency

 

  The Company may remove the Funding Agency at any time, and upon such removal, or upon resignation of the Funding Agency, the Company shall appoint a successor Funding Agency. However, any transfer of assets to a successor Funding Agency shall be made in accordance with Applicable Pension Laws and Revenue Rules.


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1.7.5 Investment of the Fund

The investment of the Fund shall comply with the investment requirements of Applicable Pension Laws and Revenue Rules.

 

1.7.6 Company Contributions

 

  (a) The Company shall make contributions pursuant to the recommendation of the Actuary which will provide funding sufficient to meet the ongoing funding requirements and tests for solvency prescribed by Applicable Pension Laws but, provided that such recommendations and tests are satisfied, the Company shall not be required to make further contributions to the Plan. In the event the Plan is terminated, the Company shall make the recommended contributions accrued to the date of termination plus the additional contributions, if any, required by Applicable Pension Laws.

 

  (b) In the event there are Excess Assets under the Plan, such Excess Assets may be applied at the discretion of the Company to offset contributions otherwise recommended to be made by the Company under Part 2 or Part 3. In the absence of an election by the Company to apply Excess Assets to meet its recommended contributions under Part 3, the Excess Assets under the Plan shall, for purposes of the Revenue Rules, be deemed to be associated with Part 2.

 

1.7.7 Remittance of Contributions

Subject to Section 1.7.6, the Company shall pay to the Funding Agency:

 

  (a) all Required and Optional DB Contributions within 30 days following the end of the month for which the contributions are payable;

 

  (b) all Company contributions recommended to be made in respect of DB Pension Benefits within 30 days following the end of the month for which the contributions are recommended; and

 

  (c) all Company contributions recommended to be made in respect of DC Pension Benefits within 30 days following the end of the month for which the contributions are payable.


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1.7.8 Return of Contributions

 

  In the event that the Company or a Participant makes a contribution to the Plan which would cause the revocation of the Plan’s registration under Revenue Rules then, subject to conditions or approval procedures under Applicable Pension Laws, such contributions shall be returned to the Company or the Participant, as applicable.

 

1.7.9 No Further Obligation

 

  (a) All benefits payable under the Plan shall be paid, or provided for, solely from the Fund, and persons entitled to benefits hereunder shall look only to the assets of the Fund for payment. The Company’s obligations hereunder are limited to the obligations expressly set forth herein.

 

  (b) A lump sum payment or transfer to another vehicle shall constitute complete satisfaction of all obligations under the Plan related to the amount so paid or transferred.

 

1.7.10 Source of Benefit Payments

 

  The Company reserves the right to provide for the payment of pension benefits referred to in Part 2 or the applicable provisions of Appendices A, B, C and D of the Plan directly from the Fund or, in lieu thereof, may elect to transfer money from the Fund to purchase from a life insurance company licensed to transact annuity business in Canada, for the benefit of the Participant and/or his Spouse and/or Designated Beneficiary, as the case may be, a life annuity, the contract for which, when delivered to such Participant, Spouse or Designated Beneficiary, as the case may be, shall serve as a full discharge of the obligations of the Company, the Fund and the Plan and shall thereby terminate all of the rights of such Participant, Spouse or Designated Beneficiary under the Plan.


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Article 1.8 - General Conditions

 

1.8.1 No Employment Rights

 

  (a) The establishment and continuance of the Plan shall not be deemed to constitute a contract of employment between the Company and any Employee and further, shall not be deemed to create any rights between the Company and any person beyond those described and provided herein, including but not limited to any right or entitlement to non-pension retirement benefits.

 

  (b) Nothing contained herein shall be deemed to give to an Employee the right to be retained in the service of the Company or to interfere with the right of the Company to terminate the employment of such Employee at any time.

 

1.8.2 Application for Payments

A Participant, Spouse, Designated Beneficiary, or legal representative, as applicable in the circumstances, claiming payments under this Plan must make written application to the Company on the forms provided, together with evidence by way of affidavit, declaration or certificate, as the Company may reasonably require, substantiating such claim before any benefits are payable. Such written application must be submitted to the Company at least 30 days prior to the date of his actual or deemed retirement or at such other time as may be approved by the Company in its discretion.

 

1.8.3 Unclaimed Payments

In the event that a Participant, Spouse, Designated Beneficiary, or legal representative satisfactory to the Company, does not claim payments under this Plan within the time specified under Section 1.8.2, the obligation for payments remains but:

 

  (a) in the case of a DB Participant, no interest shall accrue on pension payments to the benefit of the DB Participant, his Spouse, Designated Beneficiary or legal representative. If a valid claim is subsequently made, the obligation of the Company shall be discharged by the timely payment of an amount equal to the simple sum of the pension payments which are then in arrears; and


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  (b) subject to Section 3.5.3, in the case of a DC Participant, the DC Participant’s Employee and Company Accounts shall continue to be maintained in accordance with Article 3.4 until a valid claim is made.

 

1.8.4 Timely Payments

 

  All payments to be made out of the Fund shall be made within 60 days after the event giving rise to the payment, or the completion and filing of all documents required to authorize the making of the payment, whichever is the later.

 

1.8.5 No Assignment

 

  Subject to Section 1.8.7, all benefits to which a person is, or may become, entitled pursuant to the Plan are for the support and maintenance of such person and may not, in any manner, in whole or in part, be assigned, alienated, sold, transferred, pledged, hypothecated, encumbered or charged, and shall not be subject to attachment or otherwise by or on behalf of the creditors of such person, except for payment or transfer specifically allowed under the Plan.

 

1.8.6 Payment of Benefits on Behalf of Participant

 

  If the Company receives evidence which, in its absolute discretion, is satisfactory to it that a person entitled to receive a payment under the Plan is a minor or is physically or mentally incompetent, the Company may direct the payment to any representative, trustee, guardian, attorney or other person or persons entitled at law to receive the payment on the person’s behalf. Such payment shall be a complete discharge of the payment obligation under the Plan.

 

1.8.7 Support and Division of Property on Marriage Breakdown

 

  (a) Subject to Applicable Pension Laws and Revenue Rules, and any applicable federal or provincial law, a benefit under the Plan:

 

  (i)

may be, in the case of proceedings in respect of the division of matrimonial property under the jurisdiction of Alberta, subject to entitlements arising under either a matrimonial property order within the meaning of the Matrimonial Property Act, being Chapter M-9 of the Statutes of Alberta, 1980, and any regulation and amendments thereto, issued by a court of competent jurisdiction, or a similar order


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  enforceable in Alberta issued by a court outside of Alberta, or a matrimonial property agreement, as prescribed under Applicable Pension Laws;

 

  (ii) may be, in the case of proceedings in respect of the division of matrimonial property under the jurisdiction of a province other than Alberta, assigned, pledged, charged, encumbered or alienated to satisfy a division of matrimonial property, pursuant to a written agreement, decree, order or judgement of a competent tribunal; or

 

  (iii) may be, in the case of proceedings in respect of support or maintenance, subject to execution, seizure or attachment in satisfaction of an order for support or maintenance, pursuant to a decree, order or judgement of a competent tribunal provided such execution, seizure or attachment is in respect only of benefits in pay or, if in respect of a Participant last employed by the Company in a province other than Alberta, as may be permitted by Applicable Pension Laws.

 

  (b) The determination of the benefit payable to a person under subsection (a) shall be subject to Applicable Pension Laws and Revenue Rules.

 

  (c) The Participant’s benefit entitlements shall be reduced to account for the value of any settlement made under subsection (a). Such reduction shall be determined in accordance with Applicable Pension Laws and Revenue Rules.

 

  (d) In the event a Participant has commenced his pension prior to any settlement under subsection (a), the value of such settlement payable to his former Spouse, may, at the election of such former Spouse, be transferred to a Locked-In Retirement Fund in the name of such former Spouse.


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1.8.8 Small Pensions and Transfer at Company’s Discretion

 

  (a) Notwithstanding any other provision of the Plan, for a Participant last employed by the Company in Alberta, upon retirement, death, termination of employment or termination of the Plan, the Company, a Participant or, if applicable, his Spouse or Designated Beneficiary, may direct that a lump sum, equal to the Commuted Value, be paid as full and final satisfaction of all claims under the Plan by the Participant, such Spouse or Designated Beneficiary, or anyone claiming by, through or under them, if:

 

  (i) provided such Commuted Value includes DB Pension Benefits, the corresponding annual pension does not exceed 4% of the YMPE for the year in which application for commutation is made or such other amount as provided under Applicable Pension Laws; or

 

  (ii) such Commuted Value does not exceed 20% of the YMPE for that year or such other amount as provided under Applicable Pension Laws.

 

  (b) For a Participant last employed by the Company in a province other than Alberta, small pensions shall be determined, paid and transferred in accordance with Applicable Pension Laws.

 

1.8.9 Written Explanation

Pursuant to Applicable Pension Laws, each Employee and Participant shall be entitled to receive a written summary of the terms and conditions of the Plan and of any relevant amendments thereto, together with a summary explanation of his rights and obligations with respect to benefits available to him under the Plan. In the event of any conflict between a written summary or explanation and the text of the Plan, the text of the Plan shall prevail.

 

1.8.10 Headings

Headings wherever used herein are for reference purposes only and do not limit or extend the meaning of any of the Plan’s provisions.


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1.8.11 Construction

 

  In the Plan, references to the masculine include the feminine and vice versa; references to the singular include the plural and vice versa, as the context requires; and references to a paragraph, subsection, Section, Article or Appendix mean a paragraph, subsection, Section, Article or Appendix of the Plan.

 

1.8.12 Simultaneous Deaths

 

  If a Participant and his Spouse or Designated Beneficiary die at the same time or in circumstances rendering it uncertain which of them survived the other, the Participant shall be deemed, for the purposes of the Plan, to have survived the Spouse or Designated Beneficiary.

 

1.8.13 Currency

 

  All amounts payable under the Plan are stated and shall be paid in the lawful currency of Canada. If an amount of benefit or earnings entering into the computation of any benefit or contribution hereunder is expressed in a currency other than that of Canada, such amount shall be converted to Canadian currency prior to such computation based upon exchange rates established by the Company.

 

1.8.14 Deductions from Payments

 

  All amounts payable under the Plan shall be subject to deductions required by law, including tax withholdings.

 

1.8.15 Transfer Option for Cash Settlement

 

  Notwithstanding any other provision of the Plan, any person entitled to an amount hereunder in cash, may elect, subject to Revenue Rules, in lieu of receiving such amount in a cash settlement, to have the amount transferred to a retirement savings plan registered under Revenue Rules. Further, any such transfer shall serve as a full discharge of the obligations of the Company, the Fund and the Plan in respect of any such amount payable to such person.


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1.8.16 Inspection

 

  (a) The Company shall permit an Employee or Participant, or such person as is required to be permitted under Applicable Pension Laws, to inspect, to make extracts from or to copy the Plan text and any other related documents required to be made available under Applicable Pension Laws, at such time and places as may be required by Applicable Pension Laws.

 

  (b) To the extent required by Applicable Pension Laws, the Company shall provide, on request, a Participant, or such person as is required to be permitted under Applicable Pension Laws, with copies of any of the documents required to be made available under Applicable Pension Laws, upon payment to the Company of a reasonable fee when permitted under Applicable Pension Laws.

 

1.8.17 Severability

 

  Each provision of the Plan or part thereof is distinct and severable, and if any provision of the Plan or part thereof is determined to be void or unenforceable in whole or in part, such determination shall not affect the validity or enforcement of any other provision or part thereof.

 

1.8.18 Governing Document

 

  This document, as it may be amended from time to time, constitutes the Plan. No statement in any other document or communication, whether or not such document or communication is required by Applicable Pension Laws or Revenue Rules, shall create or confer any right or obligation other than as set out in this document or otherwise as required by Applicable Pension Laws or Revenue Rules, nor may any such document or communication be used or relied upon to interpret or vary any terms or provisions of the Plan.


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1.8.19 Arbitration of Disputes in British Columbia

Notwithstanding any other provisions of the Plan, where required by Applicable Pension Laws, the following special provisions apply to the arbitration of disputes in British Columbia:

 

  (a) All disputes among parties to the Plan which require settlement by arbitration in British Columbia (B.C.) shall be finally and conclusively settled by arbitration under the Commercial Arbitration Act (B.C.) and the Rules for Domestic Commercial Arbitration Proceedings of the British Columbia International Commercial Arbitration Centre (the “Rules”), except as otherwise provided herein or required by Applicable Pension Laws. The appointing authority shall be the British Columbia International Commercial Arbitration Centre (the “BCICAC”). Any case so arbitrated shall be administered by the BCICAC in accordance with its “Procedures for Cases under the BCICAC Rules”. The place of arbitration shall be Vancouver, B.C.

 

  (b) A party to the dispute may commence an arbitration of the dispute by notifying the other party to the dispute of its desire to submit the dispute to arbitration and:

 

  (i) the parties to the dispute shall agree on a single arbitrator. The arbitrator selected shall be an active member of the Law Society of British Columbia or an actuary who by virtue of his or her experience and training can reasonably be considered an expert in pension law matters;

 

  (ii) the arbitrator selected shall hear and determine the dispute as provided in this Section; and

 

  (iii) the arbitrator shall issue a written decision which shall be final and binding to the extent permitted by law on the parties to the dispute and any other person affected by it.

 

  (c) If the parties cannot agree on the single arbitrator within 30 days after the arbitration has commenced, a party to the dispute may ask the BCICAC to appoint an arbitrator.


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  (d) In no event shall any portion of the costs of an arbitrator under this Section ever be paid out of the Fund. All costs of an arbitrator under this Section must be paid by the parties to the dispute being arbitrated in such amount and proportions as the arbitrator may determine.

 

  (e) In arbitrating a dispute under this Section an arbitrator shall have regard to such principles as is required by law and shall also consider the following factors:

 

  (i) the funding risks assumed by the parties in the past; and

 

  (ii) the reliance placed by the parties on legal precedent in structuring the Plan.

 

1.8.20 Commutation for Non-Residents

A benefit required to be paid under the Plan to a Participant employed in British Columbia or Alberta who has ceased to accrue Continuous Service and who has been a non-resident of Canada as defined under Applicable Pension Laws, may be commuted and paid in a lump sum at the discretion of the person entitled to the benefit, provided that the appropriate forms are completed and filed as may be required by Applicable Pension Laws.


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Part 2 - Defined Benefit Provisions

Article 2.1 - Required DB Contributions

 

2.1.1 Required DB Contributions

Subject to Sections 2.1.2 and 2.1.4, each DB Participant, commencing on the date on which he becomes a DB Participant and ending on the date he is no longer accruing Pensionable Service, shall be required to contribute to the Fund, through payroll deductions, 4% of his Earnings, subject to a maximum total amount in each Plan Year equal to 1/3 of the money purchase maximum dollar limit specified in the Revenue Rules as applicable in that calendar year.

 

2.1.2 Disability

 

  (a) In the event an active DB Participant is totally disabled, as certified by a qualified medical doctor licensed to practice medicine in Canada and as recognized by the Company’s long-term disability insurance provider, he shall not be required to contribute to the Plan for the period of time during which he is in receipt of benefits from the Company’s long-term disability plan. Such DB Participant shall accrue Pensionable Service while totally disabled, and shall continue to accrue pension benefits based on his Disability Earnings for so long as he continues to receive the aforementioned long-term disability benefits. If such DB Participant was employed on a Part-time basis at the date of disability, pension benefits shall continue to accrue as though he remained a Part-time Employee throughout the period of disability.

 

  (b) In no event, however, shall a totally disabled DB Participant accrue pension benefits after the earlier of the DB Participant’s Normal Retirement Date and the date of termination of the Plan.

 

2.1.3 Excess Accumulated Required DB Contributions

 

  (a) Subject to paragraph (b), in the event that the Plan is terminated, or a DB Participant ceases to be an Employee by reason of:

 

  (i) retirement;


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  (ii) death; or

 

  (iii) termination of employment after his Vesting Date;

 

    and his Accumulated Required Contributions at such date exceed one-half of the Commuted Value of his DB Pension Benefits, excluding Optional DB Pension Benefits, at such date, the amount of the excess shall be paid to the Participant, his Spouse or his Designated Beneficiary, as appropriate.

 

  (b) Notwithstanding paragraph (a), if the DB Participant was last employed by the Company in British Columbia and the DB Participant so elects, the excess contributions shall be applied to increase the lifetime pension benefits otherwise payable to the DB Participant. For greater certainty, in the event the Commuted Value of the total DB Pension Benefits is transferred to a Locked-In Retirement Fund in accordance with Section 2.4.9 or subsection 2.8.2(a)(ii), the additional lifetime pension benefits derived from the excess contributions shall not be taken into account in determining the maximum transferable amount in accordance with subsection 2.8.2(c).

 

2.1.4 Maximum Contributions

Notwithstanding the provisions of this Article 2.1 or Section 1.3.8, no DB Participant shall make Required DB Contributions after his Latest Pension Commencement Date, nor in an amount which exceeds the annual maximum permitted under Revenue Rules, nor beyond five years after becoming employed by a foreign associate or affiliate of the Company, unless such continued contributions are permitted under Revenue Rules.


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Article 2.2 - Credited Interest and Return

 

2.2.1 Annual Application of Credited Interest

Effective December 31 of each Plan Year, the Company shall calculate and credit to each DB Participant the interest accrued on his beginning-of-year Accumulated Required Contributions and on his Required DB Contributions for that Plan Year.

 

2.2.2 Calculation of Annual Credited Interest

The Credited Interest for each Plan Year accrued for each DB Participant shall be the sum of:

 

  (a) the rate of interest for such Plan Year times the DB Participant’s Accumulated Required Contributions at December 31 of the prior Plan Year;

 

    PLUS

 

  (b) the rate of interest for such Plan Year times the DB Participant’s Required DB Contributions made in such Plan Year times the number of half-months from the mid-point in time during which such contributions were made to December 31 divided by 24.

 

2.2.3 Calculation of Final Year’s Credited Interest

The Credited Interest for the final Plan Year of each DB Participant shall be the sum of:

 

  (a) the rate of interest for such final Plan Year times such DB Participant’s Accumulated Required Contributions at December 31 of the prior Plan Year times the number of completed months prior to the date of calculation divided by 12;

 

    PLUS

 

  (b)

the rate of interest for such final Plan Year times the DB Participant’s Required DB Contributions made in such final Plan Year times the number of half-months from the mid-point in time during which such contributions


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  were made to the end of the month immediately preceding the date of calculation divided by 24.

 

2.2.4 Rate of Credited Interest

The rate of interest for each Plan Year shall be established by the Company in December of the prior year provided, however, that the rate of interest for each Plan Year shall be not less than CANSIM Series B 14045 averaged over the most recent 12 months for which data is available.

 

2.2.5 Credited Return

 

  (a) An individual account, entitled Accumulated Optional Contributions, shall be maintained by the Funding Agency in the Fund with respect to each Former AEC Participant. This account shall be credited with Optional DB Contributions made by the Former DC Participant, including amounts transferred from the Former DC Participant’s optional ancillary account, if any, under the AEC Plan. The operation of such individual account, including the investment of the account, the crediting of the account with Optional DB Contributions, the crediting of the account with investment return, and the valuation of the account, shall be governed by Article 3.4 as though the account were an Account under Part 3. Notwithstanding the foregoing, such individual account shall be an account under Part 2.

 

  (b) If a Former AEC Participant has designated all or a portion of his Optional DB Contributions to be in respect of Pensionable Service rendered prior to 1990, the Funding Agency shall maintain sub-accounts within his Accumulated Optional Contributions to distinguish between Accumulated Optional Contributions made in respect of Pensionable Service rendered before 1990 and after 1989.


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Article 2.3 - Retirement Dates

 

2.3.1 Normal Retirement

 

  A DB Participant may elect to retire on his Normal Retirement Date.

 

2.3.2 Early Retirement

 

  A DB Participant may elect, on or after his Vesting Date, to retire on the first day of any month which falls within the 10-year period immediately preceding his Normal Retirement Date.

 

2.3.3 Postponed Retirement

 

  A DB Participant who is still an Employee may elect to retire on the first day of any month after his Normal Retirement Date. In any case, however, pension payments must commence not later than the DB Participant’s Latest Pension Commencement Date and thereupon the DB Participant shall cease to accrue additional benefits.


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Article 2.4 - Amount of Retirement Benefits

 

2.4.1 Unadjusted Pension Amount – Normal Retirement

The annual lifetime pension to which a DB Participant shall become entitled on his Normal Retirement Date shall be equal to:

 

  (a) 2.0% multiplied by the Encana Pensionable Service of the DB Participant, with the result of that calculation multiplied by the DB Participant’s Final Average Annual Earnings;

 

    PLUS

 

  (b) 1.4% multiplied by the PEC Pensionable Service of the DB Participant, with the result of that calculation multiplied by the lesser of:

 

  (i) the DB Participant’s Final Average Annual Earnings; or

 

  (ii) the Final Average Annual YMPE;

 

    PLUS

 

  (c) 2.0% multiplied by the PEC Pensionable Service of the DB Participant, with the result of that calculation multiplied by the amount, if any, by which the DB Participant’s Final Average Annual Earnings exceed the Final Average Annual YMPE;

 

    PLUS

 

  (d) the Benefit Accrual Rate of the DB Participant multiplied by the AEC Pensionable Service of the DB Participant, with the result of that calculation multiplied by the DB Participant’s Final Average Annual Earnings;

 

    MINUS


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  (e) 125% of the Benefit Accrual Rate of the DB Participant multiplied by the AEC Pensionable Service of the DB Participant, with the result of that calculation multiplied by 25% of the lesser of:

 

  (i) the DB Participant’s Final Average Annual Earnings; or

 

  (ii) the Final Average Annual YMPE.

Notwithstanding the foregoing, if different Benefit Accrual Rates were applicable under the AEC Plan to a Former AEC Participant in respect of different periods of AEC Pensionable Service, the DB Pension Benefits determined in accordance with subsections (d) and (e) shall be determined separately with respect to each such period of AEC Pensionable Service.

 

2.4.2 Early Retirement

 

  (a) Subject to subsections (c) and (d), a DB Participant who is actively employed by the Company and who elects to retire pursuant to Section 2.3.2 shall receive an immediate lifetime pension commencing on his early retirement date which shall be calculated firstly in accordance with Section 2.4.1 and then reduced by:

 

  (i) in respect of the DB Participant’s lifetime pension earned in respect of AEC Pensionable Service, 0.25% times the number of months in excess of 36 by which the DB Participant’s early retirement date precedes his Normal Retirement Date; and

 

  (ii) in respect of the remainder of the DB Participant’s lifetime pension, 0.25% times the number of months in excess of 60 by which the DB Participant’s early retirement date precedes his Normal Retirement Date.

 

  (b) Subject to subsections (c) and (d), a Former AEC Participant who is actively employed by the Company and who elects to retire pursuant to Section 2.3.2 shall receive an immediate bridge pension which shall be calculated firstly in accordance with subsection 2.4.1(e) and then reduced by 0.25% times the number of months in excess of 36 by which the Former AEC Participant’s early retirement date precedes his Normal Retirement Date.


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  (c) Notwithstanding subsections (a) and (b), but subject to subsection (d), if a DB Participant has attained 30 years of Continuous Service, excluding any period of layoff, no early retirement reduction shall be applied to his lifetime pension benefits under subsection (a) in respect of Encana Pensionable Service and PEC Pensionable Service.

 

  (d) Notwithstanding subsections (a), (b) and (c), if a DB Participant is actively employed by the Company and elects to retire pursuant to Section 2.3.2 but does not wish to receive an immediate pension pursuant to this Section 2.4.2, his DB Pension Benefits shall instead be determined in accordance with Article 2.8.

 

2.4.3 Postponed Retirement

A DB Participant who retires after his Normal Retirement Date pursuant to Section 2.3.3 shall receive an immediate lifetime pension commencing on his postponed retirement date calculated in accordance with Section 2.4.1.

 

2.4.4 Maximum Lifetime Pension

The amount of annual lifetime pension payable under Part 2 and Appendices A, B, C and D to a DB Participant shall not exceed the product of (a), (b) and (c), where:

 

  (a) is the lesser of:

 

  (i) 2.0% of the DB Participant’s highest average compensation as defined in Regulation 8504(2) of the Revenue Rules; and

 

  (ii) $2,494.44 or such other amount as determined from time to time under Revenue Rules;

 

  (b) is the DB Participant’s Pensionable Service prior to January 1, 1990 to a maximum of 35 years, plus the DB Participant’s Pensionable Service after December 31, 1989; and

 

  (c) is 100.00% less 0.25% for each month, if any, by which the last day of the month of retirement precedes the earliest of:

 

  (i) the date the DB Participant attains age 60;


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  (ii) the date the DB Participant completed or would have completed, had the DB Participant continued in employment, 30 years of Continuous Service excluding any period of layoff; and

 

  (iii) the date on which the sum of the DB Participant’s age and Continuous Service excluding any period of layoff is or would have been, had the DB Participant continued in employment, equal to 80.

 

    Notwithstanding subsection (a)(ii), in respect of Pensionable Service rendered before 1990 that was not pensionable under a Prior Plan when originally rendered, the multiplier applied in respect of such Pensionable Service shall be limited to two-thirds of the amount defined in subsection 2.4.4(a)(ii) or such other amount as determined from time to time under Revenue Rules.

 

2.4.5 Maximum Bridge Pension

The amount of annual bridge pension, if any, payable under Part 2 and Appendices A, B, C and D to a DB Participant shall not exceed the product of (a), (b) and (c), where:

 

  (a) is the sum of:

 

  (i) the maximum annual benefit payable at age 65 under the Old Age Security Act as at the DB Participant’s retirement date; and

 

  (ii) the maximum annual benefit payable at age 65 under the Canada Pension Plan as at the DB Participant’s retirement date times the ratio, not to exceed 1.0, of the DB Participant’s Final Average Annual Earnings to the Final Average Annual YMPE;

 

  (b) is 100.0% less 0.25% for each month, if any, by which the last day of the month of retirement precedes the date the DB Participant attains age 60; and

 

  (c) is the ratio of the Pensionable Service of the DB Participant to 10, such ratio not to exceed 1.0.


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2.4.6 Maximum Total Pension

The total amount of annual lifetime pension and annual bridge pension payable under Part 2 and Appendices A, B, C and D to a DB Participant shall not exceed the aggregate of (a) times (b), plus (c) times (d), where:

 

  (a) is $2,494.44 or such other amount as determined from time to time under Revenue Rules;

 

  (b) is the DB Participant’s Pensionable Service;

 

  (c) is 25% of the Three-Year Average Annual YMPE; and

 

  (d) is 1/35 of the DB Participant’s Pensionable Service, but not to exceed 1.0.

If such total amount of annual pension would otherwise exceed such aggregate, the DB Participant’s annual bridge pension shall be reduced until such total amount of annual pension equals such aggregate.

 

2.4.7 Adjustments to Pension

The Company may, subject to the funding requirements of Applicable Pension Laws and to Section 2.8.3, and at its sole discretion, from time to time increase the pension being paid to a retired DB Participant or to the Spouse of a deceased retired DB Participant. However, such increases must be limited to increases in the Consumer Price Index after the benefits commence to be paid in accordance with Article 2.3, and shall be in accordance with Applicable Pension Laws and Revenue Rules.

 

2.4.8 Excess Accumulated Required Contributions

In addition to the foregoing, Section 2.1.3 shall apply.

 

2.4.9 Portability Right

 

  (a) Notwithstanding Sections 2.4.1, 2.4.2 and 2.4.3, a retiring DB Participant may elect at retirement to transfer the Commuted Value of his DB Pension Benefits to a Locked-In Retirement Fund.


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  (b) The sum of any amount transferred under subsection (a) and any excess contributions transferred under subsection 2.1.3(b) shall not exceed the product of:

 

  (i) the annual amount of pension computed in accordance with Section 2.4.1, but limited to the product of subsection 2.4.4(a) times subsection 2.4.4(b); and

 

  (ii) the appropriate factor from the table in subsection 2.8.2(c)(ii).

 

    If the DB Participant elects a transfer under subsection (a) and/or subsection 2.1.3(b) and the total amount intended to be transferred exceeds the maximum transferable amount determined above, such excess shall be paid to the DB Participant in cash.


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Article 2.5 - Normal Forms of Pension

 

2.5.1 Normal Form of Lifetime Pension - Without a Spouse

The normal form of lifetime pension benefits for a DB Participant without a Spouse shall be:

 

  (a) a life annuity with a term of 120 months certain;

 

  (b) payable monthly in arrears commencing with the month of retirement to, and including, the month in which the DB Participant dies.

Upon the death of the DB Participant and subject to the Revenue Rules, the Designated Beneficiary of the DB Participant may elect to receive, in a lump sum, the Commuted Value of the remaining guaranteed payments, if any.

 

2.5.2 Normal Form of Lifetime Pension - With a Spouse

The normal form of lifetime pension benefits for a DB Participant with a Spouse shall be:

 

  (a) a pension payable to the DB Participant during their joint lives, reduced on the DB Participant’s death to 60% of the amount then payable to his surviving Spouse. Following the death of both the DB Participant and the Spouse, a further lump sum payment equal to the excess, if any, of 60 times the original monthly pension payment amount over the simple sum of the pension payments received by the DB Participant and his Spouse, shall be made to:

 

  (i) the Designated Beneficiary of the DB Participant, if the DB Participant is the last to die; or

 

  (ii) the estate of the Spouse, if the Spouse is the last to die;


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  (b) payable monthly in arrears commencing with the month of retirement to, and including, the month in which the DB Participant dies. The lifetime pension payable to the surviving Spouse shall be payable monthly in arrears commencing with the month following the DB Participant’s death to, and including, the month in which the Spouse dies.

 

2.5.3 Normal Form of Bridge Pension – With or Without a Spouse

The normal form of bridge pension benefits for a Former AEC Participant shall be payable monthly in arrears commencing with the month of retirement to, and including the month in which the Former AEC Participant dies, in accordance with Section 2.5.1, except that in no event shall payments continue beyond the end of the month immediately preceding the Former AEC Participant’s Normal Retirement Date.

Upon the death of the Former AEC Participant:

 

  (a) if the Former AEC Participant has a surviving Spouse at the date of death, the remaining guaranteed payments shall be continued during the lifetime of the surviving Spouse but not beyond the end of the month immediately preceding the Former AEC Participant’s Normal Retirement Date. Upon the death of such surviving Spouse before all remaining guaranteed payments have been made to her, or earlier at her election, the Commuted Value of the then-remaining guaranteed payments shall be paid in a lump sum to the Spouse or to the estate of the Spouse, as applicable; and

 

  (b) if the Former AEC Participant has no surviving Spouse at the date of death, the Commuted Value of the remaining guaranteed payments shall be paid in a lump sum to the Designated Beneficiary of the Former AEC Participant.


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Article 2.6 - Optional Forms of Lifetime Pension

 

2.6.1 Optional Forms of Lifetime Pension

In lieu of the normal forms of lifetime pension described in Sections 2.5.1 and 2.5.2, a DB Participant may elect at retirement one of the optional forms of lifetime pension set forth below. The optional form of lifetime pension shall be, subject to Section 2.4.4, of Actuarial Equivalent Value to the normal form of lifetime pension benefits described in Sections 2.5.1 or 2.5.2, as applicable. No election by a DB Participant may be made hereunder which reduces the lifetime pension the Spouse of such DB Participant would otherwise receive pursuant to Section 2.5.2.

 

  (a) Life Annuity with a Guaranteed Period

 

    A life annuity with the payments guaranteed for a period of 60 months or 180 months. This option is only available to a DB Participant without a Spouse.

 

  (b) Participant and Survivor Annuity

 

    An annuity payable as described in subsection 2.5.2(a), but with either 80% or 100% continuation to the surviving Spouse. This option is only available to a Participant with a Spouse.

 

  (c) Other Optional Forms

 

    Subject to the other provisions of this Section 2.6.1, any other form acceptable to the Company which provides an annuity for the DB Participant’s life and which has a guaranteed period, if any, not exceeding 15 years.

Regardless of the form of lifetime pension elected by a Former AEC Participant, his bridge pension benefits shall be paid in accordance with Section 2.5.3.


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2.6.2 Optional Form Election Date

A DB Participant entitled to receive lifetime pension payments who wishes such payments to be made in other than the normal form must submit written election to the Company. Such written election shall be submitted at least 30 days prior to the date of his elected retirement or, subject to Applicable Pension Laws, such other date as may be acceptable to the Company, in its sole discretion.

 

2.6.3 Shortened Life Expectancy - Ontario Participants

An annuity currently being paid, or required to be paid, under the Plan to a Participant last employed by the Company in Ontario may be commuted and paid in a lump sum at the discretion of the DB Participant if the DB Participant:

 

  (a) establishes that he has an illness or physical disability that is likely to shorten his life expectancy to less than two years, as certified by a written statement from a qualified medical doctor licensed to practice in Canada;

 

  (b) provides an application to the Company in the prescribed form; and

 

  (c) satisfies any other conditions prescribed by Applicable Pension Laws.


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Article 2.7 - Death Benefits

 

2.7.1 Death Benefits

 

  (a) In the event a DB Participant whose Designated Beneficiary is not his Spouse dies prior to the effective date of the Participant’s retirement election, his Designated Beneficiary shall receive a lump sum amount equal to 100% of the Commuted Value of the DB Pension Benefits accrued by the DB Participant at his date of death.

 

  (b) In the event a DB Participant whose Designated Beneficiary is his Spouse dies prior to the effective date of the Participant’s retirement election, his Spouse shall receive, by way of a transfer to a Locked-In Retirement Fund or to an insurance company to purchase an immediate or deferred life annuity in accordance with Section 1.7.10, 100% of the Commuted Value of the DB Pension Benefits accrued by the DB Participant at his date of death.

 

    In relation to a DB Participant employed by the Company in Saskatchewan, the Spouse may choose, in lieu of a transfer to a Locked-In Retirement Fund or to an insurance company, to receive a lump sum amount equal to 100% of the Commuted Value of the DB Pension Benefits accrued by the DB Participant at his date of death.

 

  (c) In addition to the foregoing, Section 2.1.3 shall apply.

 

  (d) In calculating benefits in accordance with subsections (a), (b) and (c), the DB Participant shall be deemed to have, immediately prior to his date of death, attained his Vesting Date and then:

 

  (i) retired, if the DB Participant was within 10 years of his Normal Retirement Date on his date of death; or

 

  (ii) terminated employment, otherwise.


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Article 2.8 - Termination Benefits

 

2.8.1 Termination - Prior to Vesting Date

In the event a DB Participant terminates employment for any reason other than death or retirement prior to his Vesting Date, he shall receive his Accumulated Required and Optional Contributions, and upon such termination he shall cease to be a DB Participant.

 

2.8.2 Termination - After Vesting Date

In the event a DB Participant terminates employment for any reason other than death or retirement on or after his Vesting Date:

 

  (a) He shall elect either:

 

  (i) subject to Section 2.8.3, to receive a deferred lifetime pension calculated in accordance with Section 2.4.1 and a deferred bridge pension calculated in accordance with Section 2.4.2(b), payable monthly in arrears and commencing:

 

  (A) in respect of AEC Pensionable Service, 36 months before his Normal Retirement Date; and

 

  (B) in respect of the remainder of his Pensionable Service, 60 months before his Normal Retirement Date; or

 

  (ii) to transfer the Commuted Value of the deferred pension described in subsection (a)(i) to a Locked-In Retirement Fund.

 

    If no election has been made, the DB Participant shall be deemed to have elected to receive a deferred pension pursuant to subsection (a)(i). Once an election to receive a deferred pension pursuant to subsection (a)(i) has been made, or deemed to have been made, by a DB Participant, it may be changed later at any time prior to retirement.

 

  (b) In addition to the foregoing, Section 2.1.3 shall apply.


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  (c) The sum of any amount transferred under subsection (a)(ii) and any excess contributions transferred under subsection 2.1.3(b) shall not exceed the product of:

 

  (i) the annual amount of lifetime pension computed in accordance with subsection (a)(i), but limited to the product of subsection 2.4.4(a) times subsection 2.4.4(b); and

 

  (ii) the appropriate factor from the following table, or such other amount as determined from time to time under Revenue Rules:

 

Attained Age at Date of Transfer

   Factor  

Under 50

     9.0   

50

     9.4   

51

     9.6   

52

     9.8   

53

     10.0   

54

     10.2   

55

     10.4   

56

     10.6   

57

     10.8   

58

     11.0   

59

     11.3   

60

     11.5   

61

     11.7   

62

     12.0   

63

     12.2   

64

     12.4   

65

     12.4   

66

     12.0   

67

     11.7   

68

     11.3   

69

     11.0   

70

     10.6   

71

     10.3   


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    For non-integral ages, the appropriate factor shall be determined on an interpolated basis.

 

    If the DB Participant elects a transfer under subsection (a)(ii) and/or subsection 2.1.3(b) and the total amount intended to be transferred exceeds the maximum transferable amount determined above, such excess shall be paid to the DB Participant in cash.

 

2.8.3 Early Commencement after Termination

Notwithstanding subsection 2.8.2(a), in the event a DB Participant terminates employment for any reason other than death or retirement and is thereupon entitled to receive a deferred pension, he must at any time during the 120-month period ending on his Normal Retirement Date elect to commence receiving:

 

  (a) the Actuarial Equivalent Value of his deferred lifetime pension calculated in accordance with Section 2.8.2(a)(i), and he shall not be entitled to the benefit of the provisions of Sections 2.4.2 and 2.4.7 in respect thereof, provided that in no event shall his immediate lifetime pension be greater than the lifetime pension amount calculated in accordance with subsection 2.4.2(a); and

 

  (b) the Actuarial Equivalent Value of his deferred bridge pension calculated in accordance with Section 2.8.2(a)(i), and he shall not be entitled to the benefit of the provisions of Sections 2.4.2 and 2.4.7 in respect thereof, provided that in no event shall his immediate bridge pension be greater than the bridge pension amount calculated in accordance with subsection 2.4.2(b).

For greater certainty, the DB Participant must elect a single pension commencement date applicable to his total DB Pension Benefits, notwithstanding that different early retirement provisions may be applicable to different components thereof.


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Article 2.9 - Optional DB Pension Benefits

 

2.9.1 Permitted Optional Benefits

 

  (a) Subject to the other provisions of this Article 2.9, upon retirement, death, termination of employment other than in accordance with Section 2.8.1, or termination of the Plan, a Former AEC Participant shall select in writing, or in the absence of such selection the Company shall select for him, to receive Optional DB Pension Benefits offered by the Company from the following permitted benefits which would be payable under Part 2 if:

 

  (i) Section 2.3.2, subsection 2.7.1(d)(i) or Section 2.8.3 permitted retirement within 15 years of Normal Retirement Date;

 

  (ii) the early retirement reduction applicable to lifetime pension benefits under subsection 2.4.2(a) or Section 2.8.3 were replaced by the early retirement reduction specified in subsection 2.4.4(c);

 

  (iii) the Former AEC Participant’s Final Average Annual Earnings were replaced by his highest average compensation as set forth in Regulation 8504(2) of the Revenue Rules;

 

  (iv) the amount of bridge pension benefits provided under subsection 2.4.2(b), subsection 2.8.2(a)(i) or Section 2.8.3 were replaced by the maximum bridge pension benefits set forth in Section 2.4.5;

 

  (v) additional pre-retirement or post-retirement indexing of lifetime pension benefits were provided up to the limits set forth in Regulation 8503 of the Revenue Rules; and

 

  (vi) any combination of the above, including fractions of the above.


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  (b) The Optional DB Pension Benefits offered to the Former AEC Participant for selection shall be determined by the Company but shall include, where possible within the provisions of subsection (a), at least two alternative approaches to applying the Former AEC Participant’s Accumulated Optional Contributions in accordance with subsection (c).

 

  (c) The Optional DB Pension Benefits offered to a Former AEC Participant in accordance with subsections (a) and (b) shall be of Actuarial Equivalent Value to his Accumulated Optional Contributions as at the date of retirement, death, termination of employment or termination of the Plan. Such conversion of Accumulated Optional Contributions into Optional DB Pension Benefits shall be determined separately in respect of Optional DB Pension Benefits provided, and Accumulated Optional Contributions made, in respect of Pensionable Service rendered before 1990 and after 1989. Notwithstanding the foregoing provisions of this Section 2.9.1, if a Former AEC Participant terminates employment and elects to receive a deferred pension from the Plan, the conversion of his Accumulated Optional Contributions into Optional DB Pension Benefits shall be deferred until his date of retirement.

 

2.9.2 Forfeitures

If a Former AEC Participant’s Accumulated Optional Contributions exceed the Commuted Value of the Optional DB Pension Benefits that may be provided in accordance with Section 2.9.1, the excess Accumulated Optional Contributions shall be forfeited by the Former AEC Participant and shall remain in the Plan to support the provision of DB Pension Benefits to all DB Participants or be applied by the Company in accordance with Section 1.7.6.

 

2.9.3 Portability Right

Subject to Section 2.9.2, Optional DB Pension Benefits shall be transferable in accordance with, at the same time, and subject to the same conditions and limitations specified in, Sections 2.4.9, 2.7.1 and 2.8.2, except that Optional DB Pension Benefits are not required to be transferred to a Locked-In Retirement Fund, and may instead be payable, at the election of the Former AEC Participant or Spouse, as applicable, in a lump sum.


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Part 3 - Defined Contribution Provisions

Article 3.1 - Required DC Contributions

 

3.1.1 Employee Required DC Contributions

No DC Participant shall make Required DC Contributions on or after January 1, 2003. Effective January 1, 2003, Required DC Contributions made by a DC Participant to a Prior Plan prior to that date have been transferred to his Employee Account.

 

3.1.2 Disability

 

  (a) In the event a DC Participant became totally disabled prior to January 1, 2003 under the PEC Plan, as certified by a qualified medical doctor licensed to practice medicine in Canada and as recognized by the Company’s long-term disability insurance provider with effect prior to January 1, 2003, he shall not be required to contribute to the Plan for the period of time during which he is in receipt of benefits from the Company’s long-term disability plan. Instead, subject to Article 3.3, the Company shall make the Required DC Contributions formerly required under the PEC Plan on the DC Participant’s behalf based on 4% of his Disability Earnings. If such DC Participant was employed on a Part-time basis at the date of disability, the Company shall make such Required Contributions as though the DC Participant remained a Part-time Employee throughout the period of disability.

 

  (b) In no event, however, shall the Company make Required DC Contributions on the DC Participant’s behalf in accordance with the above paragraph after the earlier of the DC Participant’s Normal Retirement Date and the date of termination of the Plan.


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Article 3.2 - Employer Contributions

 

3.2.1 Employer Contributions

 

  (a) Subject to subsection (b), Section 3.2.2, Section 3.2.3 and Article 3.3, the Company shall contribute on behalf of a DC Participant during each Plan Year, or fraction thereof (to the nearest full month), an amount equal to 8% of such DC Participant’s Earnings or Disability Earnings.

 

  (b) Notwithstanding subsection (a), if a DC Participant became totally disabled, prior to January 1, 2003 while participating in the PEC Plan, as certified by a qualified medical doctor licensed to practice medicine in Canada and as recognized by the Company’s long-term disability insurance provider with effect prior to January 1, 2003, the Company contributions made in respect of the period of total disability which falls after the date the DC Participant attains 25 years of relevant service shall equal 10% of such DC Participant’s Disability Earnings.

 

    Relevant service for this purpose means the sum of:

 

  (i) The DC Participant’s Continuous Service; and

 

  (ii) The DC Participant’s prior employment service with other employers, to the extent such service is considered and approved by the Company to be relevant to the DC Participant’s position with the Company.

 

3.2.2 Allocation of Forfeiture Account

At the discretion of the Company and subject to Applicable Pension Laws, the balance of the Forfeiture Account shall, within the time limits specified in the Revenue Rules:

 

  (a) to the extent allowed be returned to the Company; or

 

  (b) be used to reduce the contributions of the Company otherwise required under Part 3.

 

3.2.3 Use of Excess Assets to Provide Contributions


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Subject to Section 1.7.6, the Company may provide for the contributions recommended to be made under Part 3 to be made from Excess Assets via the transfer of monies from the defined benefit segment of the Fund to the defined contribution segment of the Fund.

 

3.2.4 Limited Liability

Subject to Applicable Pension Laws, the liability of the Company at any time in respect of a DC Participant shall be limited to such contributions as should have been made under Sections 3.1.2 and 3.2.1, as applicable, by the Company to that DC Participant’s Accounts.


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Article 3.3 - Maximum Contributions

 

3.3.1 Maximum Contribution Limit

 

  (a) For the purposes of Articles 3.1 and 3.2, the maximum contribution limit in respect of any calendar year shall be 18% of the DC Participant’s Earnings and/or Disability Earnings, as applicable, in that calendar year, subject to the money purchase maximum dollar limit specified in the Revenue Rules as is applicable in that calendar year.

 

  (b) The maximum contribution limit calculated in accordance with subsection (a) shall be reduced by the amount of the DC Participant’s expected Pension Adjustment, as defined in the Revenue Rules, for any other benefits accrued or contributions made in the calendar year under this Plan or any other registered pension plan or deferred profit sharing plan of the Company.


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Article 3.4 - Accounts

 

3.4.1 DC Participant Accounts

Individual accounts shall be maintained by the Funding Agency in the Fund with respect to each DC Participant, as follows:

 

  (a) The DC Participant’s Required DC Contributions made under a Prior Plan, if any, shall be allocated to the DC Participant’s Employee Account.

 

  (b) The contributions of the Company made in accordance with Sections 3.1.2 and 3.2.1, including amounts transferred from:

 

  (i) the Forfeiture Account in accordance with Section 3.2.2;

 

  (ii) Excess Assets in accordance with Section 3.2.3; and

 

  (iii) a DC Participant’s company account, if any, transferred to the Plan from a Prior Plan;

 

    shall be allocated to the DC Participant’s Company Account.

 

3.4.2 Voluntary Accounts

 

  (a) Individual accounts shall be maintained by the Funding Agency in the Fund with respect to each DB or DC Participant, as follows:

 

  (i) The DB Participant’s voluntary contributions made under the AEC Plan or transferred into the AEC Plan from a previous employer’s pension plan on a non-locked-in basis shall be allocated to the DB or DC Participant’s Voluntary Account. Notwithstanding any other provision of the Plan to the contrary, such Voluntary Account may be paid out at retirement, death, termination of employment or termination of the Plan to the Participant or his Designated Beneficiary, as applicable, in a lump sum.


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  (ii) A DB or DC Participant’s voluntary contributions transferred into the AEC Plan from a previous employer’s pension plan on a locked-in basis shall be allocated to the DB or DC Participant’s Voluntary Locked-In Account.

 

  (b) No further contributions, transfers or allocations may be made to a DB or DC Participant’s Voluntary Account or Voluntary Locked-In Account.

 

  (c) If a DB Participant has a Voluntary Account or a Voluntary Locked-In Account, he shall be deemed to be a DC Participant solely with respect to such Account(s).

 

3.4.3 Forfeiture Account

A separate account shall be maintained by the Funding Agency in the Fund which represents the undistributed DC Participants’ Company Accounts which have been forfeited in accordance with Section 3.7.1. At each Valuation Date, the Funding Agency shall decrease the Forfeiture Account by the amount of any applications since the previous Valuation Date which have been made in accordance with Section 3.2.2.

 

3.4.4 Investment of Accounts

 

  (a) The DC Participant’s Accounts shall be invested, pursuant to directions provided by the DC Participant, in one or more investment options to be made available by the Funding Agency under the terms of the Funding Agreement. In the absence of such directions, his Accounts shall be invested in one or more investment options to be selected by the Company for purposes of such default. Neither the Company nor any member of the Board of Directors, Board Committee or any officer or other employee of the Company (including, without limitation, the Management Pension Committee) shall be liable to any DC Participant, his Spouse or his Designated Beneficiary or any other person, in respect of the investment returns earned or losses experienced in the DC Participant’s Accounts, or in respect of the final accumulated balance of such Accounts.


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  (b) The Forfeiture Account shall be invested, pursuant to directions provided by the Company, in one or more investment options to be made available by the Funding Agency under the terms of the Funding Agreement.

 

3.4.5 Valuation of Accounts

The value of each Account shall be determined or determinable by the Funding Agency or its agent at each Valuation Date. Valuation Dates shall occur at such times as may be required or permitted by the Funding Agreement, but not less frequently than monthly. The value of each Account shall be computed in accordance with the terms of the Funding Agreement and shall reflect any interest, gains and losses earned on the investment options selected pursuant to Section 3.4.4.


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Article 3.5 - Retirement Benefits

 

3.5.1 Retirement

The retirement of a DC Participant shall occur if and when the earliest of the following occurs:

 

  (a) the DC Participant terminates employment on or after the DC Participant’s Normal Retirement Date;

 

  (b) the Employee reaches his Latest Pension Commencement Date, regardless of whether he remains an Employee beyond such date;

 

  (c) the DC Participant terminates employment within the 10-year period immediately preceding his Normal Retirement Date, provided the DC Participant has reached his Vesting Date;

 

    or

 

  (d) in the case where contributions are being made on the DC Participant’s behalf in accordance with Section 3.1.2, the DC Participant reaches his Normal Retirement Date.

 

3.5.2 Distribution of Accounts

Upon retirement, the DC Participant shall be entitled to the distribution of the value of his Accounts, and, subject to subsection 3.4.2(a)(i):

 

  (a)

the Company shall purchase a life annuity with the value of such DC Participant’s Accounts, in accordance with Section 1.7.10. If the DC Participant has a Spouse at retirement the annuity purchased shall have a joint and survivor 60% payment form, unless such Spouse has completed a spousal waiver form in accordance with Applicable Pension Laws. No further contributions to the Plan shall be made by or on behalf of such DC Participant. Any DC Participant who has an annuity purchased with the value of his Accounts may be charged any reasonable fees or charges attributable to those Accounts, including the cost of purchase of such annuity. Such reasonable fees and charges may be payable from such


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  Accounts in accordance with the terms and conditions set out from time to time by the Company; or

 

  (b) in lieu of the annuity purchase described in subsection (a), upon retirement such DC Participant may instead elect to transfer the value of his Accounts to a Locked-In Retirement Fund. Such election shall be made by the DC Participant within the time limits prescribed by Applicable Pension Laws.

 

3.5.3 Option to Remain a DC Participant

Notwithstanding Section 3.5.2 and subject to Section 3.5.4, a retired DC Participant may elect to maintain his Accounts until such time as he makes a transfer as described in subsection 3.5.2(b), but not later than his Latest Pension Commencement Date. Subject to Section 1.3.6, no further contributions to the Plan shall be made by or on behalf of such retired DC Participant.

 

3.5.4 Transfers at the Company’s Discretion

Notwithstanding Section 3.5.3, with respect to an Employee who becomes a DC Participant after August 10, 2006, the Company may, at their discretion, upon retirement, transfer the value of a DC Participant’s Accounts to a Locked-in Retirement Fund in accordance with Applicable Pension Laws.


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Article 3.6 - Death Benefits

3.6.1 Death Benefits

 

  (a) In the event a DC Participant whose Designated Beneficiary is not his Spouse dies prior to the distribution of the DC Participant’s Accounts under any other Article, his Designated Beneficiary shall receive, in a lump sum, the value of the DC Participant’s Accounts determined as of the Valuation Date that is coincident with or immediately preceding the distribution of the DC Participant’s Accounts.

 

  (b) Subject to subsection 3.4.2(a)(i), in the event a DC Participant whose Designated Beneficiary is his Spouse dies prior to the distribution of the DC Participant’s Accounts under any other Article of the plan, his Spouse shall receive, by way of a transfer to a Locked-In Retirement Fund, the value of the DC Participant’s Accounts determined as of the Valuation Date that is coincident with or immediately preceding the distribution of the DC Participant’s Accounts.

 

    In relation to a DC Participant employed by the Company in Saskatchewan, on the date of death, the Spouse may choose, in lieu of a transfer to a Locked-In Retirement Fund, or to an insurance company, to receive, in a lump sum, the value of the DC Participant’s Accounts determined as of the Valuation Date that is coincident with or immediately preceding the distribution of the DC Participant’s Accounts.


Encana Corporation Canadian Pension Plan

Amended and Restated as of January 1, 2011

   Page 68

 

 

Article 3.7 - Termination Benefits

 

3.7.1 Termination - Prior to Vesting Date

 

  (a) In the event a DC Participant terminates employment for any reason other than death or retirement prior to his Vesting Date, the DC Participant shall receive, in a lump sum, the value of his Employee Account and his Voluntary Account.

 

  (b) In addition, the DC Participant shall receive, by way of a transfer to a Locked-In Retirement Fund, the value of his Voluntary Locked-In Account.

 

  (c) The value of the DC Participant’s Company Account shall be allocated to the Forfeiture Account.

 

  (d) For the purposes of this Section 3.7.1, the value of such DC Participant’s Accounts shall be determined as of the Valuation Date that is coincident with or immediately preceding the distribution of the DC Participant’s Accounts.

 

3.7.2 Termination - After Vesting Date

 

  (a) Subject to subsection 3.4.2(a)(i), in the event a DC Participant terminates employment for any reason other than death or retirement on or after his Vesting Date, the DC Participant may receive the value of his Accounts by way of a transfer to a Locked-In Retirement Fund.

 

  (b) Notwithstanding subsection (a) but subject still to subsection 3.4.2(a)(i), such terminated DC Participant may elect to maintain his Accounts until such time as he elects to transfer the value of his Accounts to a Locked-In Retirement Fund, but not later than his Latest Pension Commencement Date. Subject to Section 1.3.6, no further contributions to the Plan shall be made by or on behalf of such terminated DC Participant.

 

  (c) Notwithstanding subsection (a) and (b), with respect to an Employee who becomes a DC Participant after August 10, 2006, the Company may, at their discretion, upon termination of membership, transfer the value of a DC Participant’s Accounts to a Locked-in Retirement Fund in accordance with Applicable Pension Laws.


Encana Corporation Canadian Pension Plan

Amended and Restated as of January 1, 2011

   Page 69

 

 

  (d) For the purposes of this Section 3.7.2, the value of a DC Participant’s Accounts shall be determined as of the Valuation Date that is coincident with or immediately preceding the distribution of the DC Participant’s Accounts.


Encana Corporation Canadian Pension Plan

Amended and Restated as of January 1, 2011

   Appendix A Page A-1

 

 

Appendix A Mitigation of Maximum Defined Benefit Provisions

 

1. Application

This Appendix A shall apply only to a DB Participant whose DB Pension Benefits are constrained pursuant to Sections 2.4.4 to 2.4.6.

 

2. Principle

A DB Participant whose DB Pension Benefits are so constrained shall be granted, to the extent possible in accordance with paragraph 3 below, additional pension benefits which are of Actuarial Equivalent Value to the DB Pension Benefits which would have been provided under the Plan were it not for the application of Sections 2.4.4 to 2.4.6.

 

3. Additional Pension Benefits

The additional pension benefits granted shall be determined by the Company, in its sole discretion, and shall consist of additional pre-retirement or post-retirement indexing of DB Pension Benefits up to the limits set forth in Regulation 8503 of the Revenue Rules.

 

4. Portability

The additional pension benefits described in this Appendix A shall be taken into account in determining any Commuted Value or Actuarial Equivalent Value.


Encana Corporation Canadian Pension Plan

Amended and Restated as of January 1, 2011

   Appendix B Page B-1

 

 

Appendix B Involuntary Termination of Employment

 

1. Application

Subject to paragraph 2, the provisions of this Appendix B shall apply to a DB Participant whose employment is involuntarily terminated by the Company.

 

2. Additional Pension Benefits

If the Company terminates the employment of a DB Participant, the Company may, in its sole discretion, grant one or more of the following improvements:

 

  (a) the improvements listed in subsection 2.9.1(a);

 

  (b) additional lifetime pension benefits determined by granting Pensionable Service to the DB Participant for any period of Continuous Service prior to eligibility to join the Plan, and prior to January 1, 1990, subject to the limits imposed by Regulation 8504 of the Revenue Rules; and

 

  (c) additional lifetime pension benefits determined by increasing the DB Participant’s lifetime pension in respect of Pensionable Service prior to January 1, 1990, subject to the limits imposed by Regulation 8504 of the Revenue Rules.

The additional pension benefits provided may, to the extent considered appropriate by the Company, seek to mitigate the adverse impact of the DB Participant’s involuntary termination.

 

3. Portability

The additional pension benefits described in this Appendix B shall be taken into account in determining any Commuted Value or Actuarial Equivalent Value.


Encana Corporation Canadian Pension Plan

Amended and Restated as of January 1, 2011

   Appendix C Page C-1

 

 

Appendix C Provisions for Defined Class

 

1. Definitions and Option to Join

 

  (a) In this Appendix C, the following terms shall, unless the context clearly indicates otherwise, have the following meanings:

 

  (i) “Executive DB Participant” means a DB Participant who is a Senior Vice President or higher, or the equivalent thereof, with the Company or who was an executive defined benefit participant under the PEC Plan.

 

  (ii) “Executive DC Participant” means a DC Participant who is a Senior Vice President or higher, or the equivalent thereof, with the Company or who was an executive defined contribution participant under the PEC Plan.

 

  (b) A DB Participant or DC Participant who is also an Executive DB Participant or Executive DC Participant shall be deemed to have been an Executive DB Participant or Executive DC Participant from the earliest of the following dates:

 

  (i) July 1, 1997 if the DB Participant or DC Participant was an executive defined benefit or executive defined contribution participant under the PEC Plan;

 

  (ii) January 1, 2002 if the DB Participant or DC Participant was an Executive DB Participant or Executive DC Participant on December 31, 2002; and

 

  (iii) in any other case, the date of appointment as a Senior Vice President or higher with the Company, but not sooner than January 1, 2003.

 

  (c) Notwithstanding any provision of the Plan to the contrary, a Senior Vice President or higher, or the equivalent thereof, with the Company shall, with the Company’s approval, have the option, at date of hire only, not to join the Plan. An Employee so electing may change his election later, but not retroactively, and join the Plan on the first day of any month coincident with or immediately following his election to join the Plan.


Encana Corporation Canadian Pension Plan

Amended and Restated as of January 1, 2011

   Appendix C Page C-2

 

 

2. Earnings

Notwithstanding any provision of the Plan to the contrary, for any period during which a DB Participant or DC Participant is deemed to be an Executive DB Participant or Executive DC Participant, his monthly Earnings for purposes of the Plan shall include his variable pay actually paid in such period. Notwithstanding the foregoing sentence:

 

  (a) the amount of variable pay included in his Earnings in any month shall not exceed the annual maximum pensionable variable pay rate applicable to his position with the Company, as determined from time to time by the Company as at the end of the calendar year preceding the month of payment of such variable pay; and

 

  (b) the number of variable payments included in his Earnings shall not exceed five, and where the number of variable payments included in his Earnings would otherwise exceed five, only the five variable payments, which produce the highest Final Average Annual Earnings determined after the application of subparagraph (a), shall be included in his Earnings.

 

3. Transfer of Membership Between Provisions

Notwithstanding any provision of the Plan to the contrary, a DC Participant who is an Executive DC Participant on January 1, 2003 shall be entitled to elect to discontinue accruing DC Pension Benefits and to become a DB Participant accruing DB Pension Benefits. Any such election shall be made by the Executive DC Participant within 30 days immediately prior to January 1, 2003. In the event of such election, the effective date of the election shall be January 1, 2003. The Executive DC Participant so electing shall be required to leave his benefits accrued under Part 3 prior to January 1, 2003 in his Accounts until such time as he retires, dies or terminates employment.


Encana Corporation Canadian Pension Plan

Amended and Restated as of January 1, 2011

   Appendix D Page D-1

 

 

Appendix D Provisions for Members of Predecessor Plans

 

1. Definitions

In this Appendix D, the following terms shall, unless the context clearly indicates otherwise, have the following meanings:

 

  (a) “Former Altana Participant” means a DB Participant who formerly participated in the Altana Exploration Ltd. Employee Retirement Plan and whose defined benefit entitlements thereunder were assumed by the PEC Plan.

 

  (b) “Former CPL Participant” means a DB Participant who formerly participated in the Canadian Pacific Limited Pension Plan and whose defined benefit entitlements thereunder were absorbed into the PEC Plan.

 

2. Application

All terms and conditions of the Plan shall govern a Former Altana Participant or Former CPL Participant, except as may be specifically modified by the provisions of this Appendix D. For greater certainty, Sections 2.4.4 to 2.4.6 shall continue to apply, unmodified, to a Former Altana Participant or Former CPL Participant.

 

3. Grandfathering of Altana Pension Formula

DB Pension Benefits earned by a Former Altana Participant in respect of service prior to January 1, 2001 shall be determined in accordance with the defined benefit pension formula contained in the former Altana Exploration Ltd. Employee Retirement Plan.

 

4. Grandfathering of CPL 85-Point Rule

If a Former CPL Participant is actively employed by the Company and elects to retire pursuant to Section 2.3.2, and if the sum of such Former CPL Participant’s age and Pensionable Service is at least 85 years, no early retirement reduction shall be applied to such Former CPL Participant’s lifetime pension under Part 2.


Encana Corporation Canadian Pension Plan

Amended and Restated as of January 1, 2011

   Appendix D Page D-2

 

 

5. Grandfathering of CPL Indexing

A retired Former CPL Participant, or the surviving Spouse or Designated Beneficiary thereof, shall be entitled to annual indexing of the lifetime pension payable under Part 2 commencing on the January 1 coincident with or next following the later of:

 

  (a) the date on which the Former CPL Participant attained, or would have attained if he had survived, age 65; and

 

  (b) the fifth anniversary of the Former CPL Participant’s date of retirement.

The amount by which such lifetime pension shall be increased on each January 1 shall be calculated by multiplying:

 

  (c) such lifetime pension, to a maximum of:

 

  (i) $1,500; plus

 

  (ii) 75% of the amount of lifetime pension payable to the Former CPL Participant which is in excess of $1,500 and which is in respect of pensionable service recognized under the Canadian Pacific Limited Pension Plan on and after January 1, 2001; by

 

  (d) 50% of the annual rate of increase of the Consumer Price Index during the 12-month period ending on the immediately preceding September 30, to a maximum of 3%.

Such indexing shall be taken into account in determining any Commuted Value or Actuarial Equivalent Value. Notwithstanding anything contained elsewhere in this paragraph 5 of Appendix D, if mandatory indexing is legislated by the Parliament of Canada or a Canadian province, or if indexing adjustments are granted by the Company pursuant to Article 2.4.7, the indexing arrangement set out in this paragraph 5 of Appendix D shall be integrated with such other mandatory or voluntary indexing so that the total indexing provided does not exceed the greater of the indexing set out in this paragraph 5 of Appendix D and the level of mandatory and voluntary indexing that would be provided in the absence of this paragraph 5 of Appendix D.

Exhibit 10.27

CERTIFICATE OF AMENDMENT

TO THE

ENCANA CORPORATION CANADIAN PENSION PLAN

AMENDED AND RESTATED EFFECTIVE JANUARY 1, 2011

WHEREAS Encana Corporation (the “Company”) sponsors the Encana Corporation Canadian Pension Plan (the “Plan”);

AND WHEREAS pursuant to Section 1.5.4 of the Plan, the Company reserves the right to amend the Plan;

AND WHEREAS the Company wishes to amend the Plan to merge the Conwest Retirement Plan for Salaried Employees of Conwest Exploration Company Limited and Associated Companies into the Plan;

NOW THEREFORE WE CERTIFY that effective January 1, 2014, the Plan is hereby amended as described in the attached Amendment Number 1.

CERTIFIED to be an approved amendment of the Plan on this 29 day of May, 2014

 

/s/ Mike Williams

     

/s/ Patricia A. MacDonald

Signature       Signature
Mike Williams       Patricia A. MacDonald
Executive Vice President, Corporate Services       Vice President, Human Resources

 

Page 1 of 3


AMENDMENT NUMBER 1

ENCANA CORPORATION CANADIAN PENSION PLAN

The Encana Corporation Canadian Pension Plan (the “Plan”) is hereby amended effective January 1, 2014 as follows:

 

1. In the Table of Contents, page ii of the Plan, the following text is added immediately after reference to Appendix D:

“Appendix E – Applicable Provisions for Former Members of the Conwest Plan”

 

2. In Article 1.2, the following section is added as Section 1.2.4 immediately following Section 1.2.3:

 

  “1.2.4 Plan Merger Effective January 1, 2014

Effective January 1, 2014, the assets and liabilities of the Retirement Plan for Salaried Employees of Conwest Exploration Company Limited and Associated Companies (the “Conwest Plan”) is hereby merged into the Plan. As of January 1, 2014, there are two remaining beneficiaries in receipt of pension payments from the Conwest Plan (the “Conwest Participants”). The Conwest Participants and the application of the provisions of the Conwest Plan are specified in Appendix E. Notwithstanding anything in this Plan to the contrary, individuals who are receiving pension benefits under the Conwest Plan including, without limitation the Conwest Participants, shall receive pension benefits under this Plan under Appendix E only and shall not receive pension benefits under any other provisions of this Plan. Nothing under this Plan shall have the effect of reducing any benefits accrued to such individuals including, without limitation, the Conwest Participants, under the Conwest Plan.”

 

3. The following text is added as Appendix E of the Plan, immediately following Appendix D thereof:

“Appendix E – Applicable Provisions for Former Members of the Conwest Plan

 

  1. Definition

In this Appendix E, unless the context clearly indicates otherwise, the following term shall have the following meaning:

Former Conwest Beneficiary ” means one of the two beneficiaries who were beneficiaries of the Conwest Plan at the time the Conwest Plan was merged into the Plan, effective January 1, 2014.

 

Page 2 of 3


  2. Application

All terms and conditions of the Plan shall govern a Former Conwest Beneficiary, except as may be specifically modified by the provision of this Appendix E.

 

  3. Indexing

The amount of pension paid to a Former Conwest Beneficiary shall be adjusted each calendar year in accordance with the Pension Index as defined in the Canada Pension Plan to a maximum of 2.0% each year.

 

  4. Schedule of Former Conwest Beneficiaries

The names, monthly pension amount and form of pension as of January 1, 2014 of each Former Conwest Beneficiary are as follows:

 

Name

   Monthly Pension     

Form of Pension

XXXXXX, XXXXXXXX

   $ X,XXX.XX      Life annuity with no guarantee period

XXXXXXX, XXXXXX

   $ XXX.XX      Life annuity with no guarantee period

 

Page 3 of 3

Exhibit 10.28

CERTIFICATE OF AMENDMENT

TO THE

ENCANA CORPORATION CANADIAN PENSION PLAN

AMENDED AND RESTATED EFFECTIVE JANUARY 1, 2011

WHEREAS Encana Corporation (the “Company”) sponsors the Encana Corporation Canadian Pension Plan (the “Plan”);

AND WHEREAS pursuant to Section 1.5.4 of the Plan, the Company reserves the right to amend the Plan;

AND WHEREAS the Company wishes to amend the Plan to comply with changes to applicable provincial pension legislation;

NOW THEREFORE WE CERTIFY that effective September 1, 2014, the Plan is hereby amended as described in the attached Amendment Number 2.

CERTIFIED to be an approved amendment of the Plan on this 24 day of November, 2014

 

/s/ Michael Williams       /s/ Patricia A. MacDonald
Signature       Signature

Mike Williams

Executive Vice President, Corporate Services

ENC ANA CORPORATION

Acting by and through its authorized agent,

ENCANA SERVICES COMPANY LTD.

     

Patricia A. MacDonald

Vice President, Human Resources

ENCANA CORPORATION

Acting by and through its authorized agent,

ENCANA SERVICES COMPANY LTD.


Encana Corporation Canadian Pension Plan

Amendment No. 2

  

 

1

 

AMENDMENT NUMBER 2

ENCANA COPORATION CANADIAN PENSION PLAN

The Encana Corporation Canadian Pension Plan (the “Plan”) is hereby amended effective September 1, 2014 as follows:

 

1. In Paragraph 1.1.50 (a) (i), “three or more” is replaced with “more than three”.

 

2. In Paragraph 1.1.50(a) (ii), “conjugal” is replaced with “marriage-like”.

 

3. Subparagraph 1.1.50(ii) (A) is deleted in its entirety and replaced with the following:

 

  “(A) for a continuous period of at least 3 years; or”

 

4. Section 1.1.55 is deleted in its entirety and replaced with the following:

“1.1.55 “Vesting Date” means the date upon which a Participant joins the Plan.”

 

5. Section 1.6.2 is deleted in its entirety and replaced with the following:

 

  “1.6.2 INTENTIONALLY DELETED

 

6. In Section 1.7.1, the following is added immediately after “Agreement”:

“and in accordance with Applicable Pension Laws”

 

7. Paragraph 1.8.8 (a) is deleted in its entirety and replaced with the following:

 

  “(a) Notwithstanding any other provision of the Plan, for a Participant last employed by the Company in Alberta, upon retirement, death, termination of employment or termination of the Plan, the Company, a Participant or, if applicable his Spouse, may direct that a lump sum, equal to the Commuted Value, be paid as full and final satisfaction of all claims under the Plan by the Participant or Spouse, or anyone claiming by, through or under them, if such Commuted Value does not exceed 20% of the YMPE for the year of benefit payment, or such other amount as provided under Applicable Pension Laws.”

 

8. In Article 1.8, the following Section 1.8.21 is added immediately following Section 1.8.20:

“1.8.21 Commutation for Shortened Life Expectancy

 

  (i) Where:

 

  (A) a benefit is required to be paid under the Plan to a Participant last employed in Alberta, other than a retired Participant in receipt of benefits; and


Encana Corporation Canadian Pension Plan

Amendment No. 2

  

 

2

 

 

  (B) that Participant establishes that he has a terminal illness or disability which is likely to shorten his life expectancy considerably, as certified by a written statement from a medical practitioner licensed to practice in Canada,

then the Participant’s Plan benefit may be commuted and paid in a lump sum or such other forms as permitted under Applicable Pension Laws, at the discretion of the Participant, provided that the appropriate forms are completed and filed as may be required by Applicable Pension Laws.”

 

9. Paragraph 2.1.3(a) is deleted in its entirety and replaced with the following:

 

  “(a) Subject to paragraph (b), in the event that the Plan is terminated, or a DB Participant ceases to be an Employee by reason of:

 

  (i) retirement;

 

  (ii) death; or

 

  (iii) termination of employment;

and his Accumulated Required Contributions at such date exceed one-half of the Commuted Value of his DB Pension Benefits that relate to his membership in the Plan during the period in which he was required to make contributions on and after January 1, 1987, excluding Optional DB Pension Benefits, at such date, the amount of the excess shall be paid to the Participant, his Spouse or his Designated Beneficiary, as appropriate. Where the Participant was last employed by the Company in Alberta, the Participant or his Spouse, as applicable, may alternatively elect to have the excess transferred to:

 

  (A) another pension plan, if and to the extent that the other plan allows the transfer;

 

  (B) a retirement savings plan or retirement income fund registered under Revenue Rules; or

 

  (C) an insurance company to purchase a deferred annuity.”

 

10. Paragraph 2.7.1(d) is deleted in its entirety and replaced with the following:

 

  “(d) In calculating benefits in accordance with subsections (a), (b) and (c), the DB Participant shall be deemed to have:

 

  (i) retired on his date of death, if the DB Participant was within 10 years of his Normal Retirement Date on his date of death; or


Encana Corporation Canadian Pension Plan

Amendment No. 2

  

 

3

 

 

  (ii) terminated employment on his date of death, otherwise.”

 

11. Section 2.8.1 is deleted in its entirety and replaced with the following:

 

  “2.8.1 INTENTIONALLY DELETED”

 

12. In Section 2.8.2, the title is deleted and replaced with “Termination”, and the first sentence is amended by deleting “on or after his Vesting Date”.

 

13. In Paragraph 2.9.1(a), the words “other than in accordance with Section 2.8.1” are deleted.

 

14. In Paragraph 3.4.2(a)(i), the following is added to the end thereof:

“or such other form as may be required by Applicable Pension Laws.”

 

15. In Section 3.4.3, the first sentence is deleted in its entirety and replaced with the following:

“A separate account may be maintained by the Funding Agency in the Fund which represents the undistributed DC Participants’ Company Accounts which were forfeited prior to September 1, 2014.”

 

16. Section 3.5.4 is deleted in its entirety and replaced with the following:

 

  “3.5.4 Transfers at the Company’s Discretion

 

   Notwithstanding Section 3.5.3, the Company may, at their discretion, upon retirement, transfer the value of a DC Participant’s Accounts to a Locked-in Retirement Fund in accordance with Applicable Pension Laws.”

 

17. Section 3.7.1 is deleted in its entirety and replaced with the following:

 

  “3.7.1 INTENTIONALLY DELETED

 

18. In Section 3.7.2, the title is deleted and replaced with “Termination”, and the first sentence is amended by deleting “on or after his Vesting Date”.

Exhibit 10.29

CERTIFICATE OF AMENDMENT

TO THE

ENCANA CORPORATION CANADIAN PENSION PLAN

AMENDED AND RESTATED EFFECTIVE JANUARY 1, 2011

WHEREAS Encana Corporation (the “Company”) sponsors the Encana Corporation Canadian Pension Plan (the “Plan”);

AND WHEREAS pursuant to Section 1.5.4 of the Plan, the Company reserves the right to amend the Plan;

AND WHEREAS the Company wishes to amend the Plan to comply with changes to applicable provincial pension legislation;

NOW THEREFORE WE CERTIFY that the Plan is hereby amended as described in the attached Amendment Number 3.

CERTIFIED to be an approved amendment of the Plan on this 30 day of November, 2015

 

/s/ Mike Williams

     

/s/ Rachel Moore

Signature       Signature

Mike Williams

Executive Vice-President, Corporate Services

ENCANA CORPORATION

Acting by and through its authorized agent

ENCANA SERVICES COMPANY LTD.

     

Rachel Moore

Vice-President, Human Resources

ENCANA CORPORATION

Acting by and through its authorized agent

ENCANA SERVICES COMPANY LTD.


AMENDMENT NUMBER 3

ENCANA COPORATION CANADIAN PENSION PLAN

The Encana Corporation Canadian Pension Plan (the “Plan”) is hereby amended as follows:

Effective June 1, 2015:

 

1. Section 1.1.50(c) is deleted in its entirety and replaced with the following:

 

  “(c) in relation to a Participant last employed by the Company in Nova Scotia, the person who, at the earlier of the commencement of the Participant’s pension and the date of the Participant’s death, meets one of the following eligibility requirements:

 

  (i) the person who is married to the Participant; or

 

  (ii) the person who is married to the Participant by a marriage that is voidable and has not been annulled by a declaration of nullity; or

 

  (iii) the person who has gone through a form of marriage with the Participant, in good faith, that is void and who is cohabiting with the Participant or, where they have ceased to cohabit, has cohabited with the Participant within the 12-month period immediately preceding the relevant time; or

 

  (iv) the person who is the Participant’s domestic partner within the meaning of Section 52 of the Nova Scotia Vital Statistics Act, or

 

  (v) the person who is not married to the Participant, but who has cohabited in a conjugal relationship with the Participant:

 

  (A) for a period of at least three years, if either of them is married, or

 

  (B) for a period of at least one year, if neither of them is married.”

 

2. Paragraph 1.4.1(c) “Alberta, British Columbia, Saskatchewan or Ontario” is replaced by “Alberta, British Columbia, Nova Scotia, Saskatchewan or Ontario”.

 

3. In Section 1.8.21 “Alberta” is replaced by “Alberta or Nova Scotia” and the following is added immediately after “likely to shorten his life expectancy considerably”:

“(or in the case of a Participant last employed in Nova Scotia, likely to shorten his life expectancy to less than two years)”.

 

4. In Paragraph 2.1.3(a) “Alberta” is replaced, wherever that word occurs, by “Alberta or Nova Scotia” and the date “January 1, 1987” is replaced by the words “the date required by the Applicable Pension Law”.


Encana Corporation Canadian Pension Plan

Amendment No. 3

 

 

5. In Paragraph 2.7.1(b) “Saskatchewan” is replaced by “Nova Scotia and Saskatchewan” and the following is added to the end of that paragraph:

“In relation to a DB Participant last employed by the Company in Nova Scotia, the surviving Spouse may choose in lieu of a transfer to a Locked-In Retirement Fund to receive an immediate or deferred pension, the Commuted Value of which is equal to the 100% of the Commuted Value of the DB Pension Benefits accrued by the DB Participant at his date of death. In the event the surviving Spouse of a DB Participant last employed by the Company in Nova Scotia fails to make an election within the time limit required by the Company or the Applicable Pension Law, such surviving Spouse is deemed to have elected to receive an immediate pension.”

Effective September 30, 2015:

 

6. In Paragraph 1.1.50(e)(i), “longer than the two-year period immediately preceding the relevant time” is replaced with “a continuous period longer than two years immediately preceding the relevant time”.

 

7. In Paragraph 1.1.50(e)(ii), “one-year” is replaced with “two-year”.

 

8. In Paragraph 1.4.2 (b) the following is added immediately after the words “Designated Beneficiary”:

“unless such designation is irrevocable under the applicable legislation”.

 

9. Section 1.8.19 is deleted in its entirety and replaced with the following:

“1.8.19 INTENTIONALLY DELETED

 

10. Section 1.8.20 is deleted in its entirety and replaced with the following:

“1.8.20 Commutation for Non Residents

A benefit, other than a monthly pension benefit, required to be paid under the Plan to:

 

  (a) a Participant last employed in Alberta or British Columbia who has ceased to accrue Continuous Service; or

 

  (b) the surviving Spouse or former Spouse of that Participant,

and who:

 

  (c) has provided to the Company written evidence that the Canada Revenue Agency has confirmed the Participant’s status as a non-resident for the purposes of the Income Tax Act (Canada); and

 

  (d)

if the Participant was last employed in British Columbia, has been absent from Canada for two or more years,


Encana Corporation Canadian Pension Plan

Amendment No. 3

 

 

  may be commuted and paid in a lump sum at the discretion of the person entitled to the benefit, provided that the appropriate forms are completed and filed as may be required by Applicable Pension Laws.”

 

11. In Section 1.8.21 “Alberta or Nova Scotia” is replaced by “Alberta, British Columbia or Nova Scotia”.

 

12. The following Sections 1.8.22, 1.8.23, and 1.8.24 are added immediately following Section 1.8.21:

“1.8.22 Benefits Statement

 

  (a) Within the period prescribed by Applicable Pension Laws, the Company shall provide:

 

  (i) to each Participant who is accruing Continuous Service, such information as prescribed by Applicable Pension Laws; and

 

  (ii) to each other person as may be required by Applicable Pension Laws, a written statement containing the information prescribed by Applicable Pension Laws.

 

  (b) Upon termination of employment of a Participant or upon termination of the Participant’s active membership in the Plan, the Company shall provide to the Participant (or the person entitled to benefits in the event of the Participant’s death) within the period prescribed by Applicable Pension Laws, a written statement containing the information prescribed under Applicable Pension Laws in respect of the benefits and options to which the Participant or other person is entitled.

 

  1.8.23 Other Information

The Company shall provide such other information or written statements regarding the Plan as is required under Applicable Pension Laws and Revenue Rules.

 

  1.8.24 Limitation

Such explanation, statement or right of disclosure of the Plan text and other documents provided shall have no effect on the rights or obligations of any person under the Plan, and shall not be referred to in interpreting or giving effect to the provisions of the Plan. None of the Company, any employee, officer or director of those entities who is involved in the administration of the Plan, shall be liable for any loss or damage claimed by any person to have been caused by any error or omission in such explanation, statement or other information.”

 

13. In Paragraph 2.1.3(a) “Alberta or Nova Scotia” is replaced, wherever that phrase occurs, by “Alberta, British Columbia or Nova Scotia”.

 

14. In Section 3.4.4, the second sentence is deleted in its entirety and replaced with the following:


Encana Corporation Canadian Pension Plan

Amendment No. 3

 

“In the absence of such directions, his Accounts shall be invested in one or more investment options to be selected by the Company, in accordance with the Applicable Pension Laws, for purposes of such default.”

Exhibit 10.30

Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015


Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015

   Page i

 

Table of Contents    Page  
Article 1   

Definitions

     1   
Article 2   

Establishment of Supplemental Plan

     4   
Article 3   

Eligibility and Participation

     5   
Article 4   

Funding and Investments

     6   
Article 5   

Administration

     9   
Article 6   

Amendment or Termination

     12   
Article 7   

General Conditions

     15   
Article 8   

DB Retirement Benefits

     18   
Article 9   

DB Death Benefits

     19   
Article 10   

DB Termination Benefits

     20   
Article 11   

Cost-of-Living Adjustments

     21   
Appendix A   

Temporary Enhancement for Certain Retiring DC Participants

  
Schedule A   

Schedule of Individual Pension Agreements

  


Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015

   Page 1

 

Article 1 Definitions

For the purposes of the Supplemental Plan, each capitalized term shall have the same meaning as the corresponding term under the Pension Plan, unless the capitalized term is defined below, in which case the definition below shall take precedence.

 

1.01 “Actuarial Equivalent Value” means a value, actuarially equivalent to the comparator, as determined by the Company after consultation with the Actuary. The sex of the Participant, Designated Beneficiary and/or Spouse, as applicable, shall not be taken into account in determining the Actuarial Equivalent Value. Unless otherwise determined by the Company, the non-registered status of the Supplemental Plan and of the benefits payable hereunder shall also not be taken into account in determining the Actuarial Equivalent Value.

 

1.02 “Commuted Value” means the lump sum Actuarial Equivalent Value of a benefit, calculated using the actuarial basis currently applicable to benefits payable under the Pension Plan.

 

1.03 “Company” means Encana Corporation and any affiliated or subsidiary company or any partnership which is majority owned by Encana Corporation, its affiliated and subsidiary companies, or any of them, and which is designated as a participating company or partnership by the Company. Notwithstanding the foregoing, where any reference in the Supplemental Plan is made to any action to be taken, consent, approval or opinion to be given, discretion or decision to be exercised by the Company, “Company” means Encana Corporation acting through the Board of Directors or any person duly authorized by the Board of Directors for the purposes of the Supplemental Plan.

 

1.04 “Fund” means the corpus, including the refundable tax remitted pursuant to the Supplemental Plan Revenue Rules and not yet refunded, and all earnings, appreciations or additions thereon, established for purposes of the Supplemental Plan under the Supplemental Plan Revenue Rules pertaining to retirement compensation arrangements and held by the Funding Agency under the Funding Agreement.

 

1.05 “Funding Agency” means the trustee, or successor thereof, appointed by the Company to hold the Fund pursuant to the Funding Agreement.

 

1.06 “Funding Agreement” means the agreement entered into by the Company and the Funding Agency establishing and maintaining the Fund, and amendments thereto.


Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015

   Page 2

 

1.07 “Maximum Pension Provisions” means the provisions of the Pension Plan which limit the DB Pension Benefits provided under the Pension Plan to a DB Participant to the maximum amount of pension or maximum period of accrual from time to time permitted under the Pension Plan Revenue Rules. Notwithstanding the foregoing, neither subsection 2.8.2(c) nor Section 2.9.2 of the Pension Plan shall be considered to be one of the “Maximum Pension Provisions” and, for greater certainty, the Supplemental Plan shall not hold a DB Participant harmless from the operation of such provisions.

 

1.08 “Participant” means an Employee entitled to benefits or rights under the Supplemental Plan, or a living former employee of the Company or of a predecessor company who continues to be entitled to benefits under the Supplemental Plan.

 

1.09 “Pension Plan” means the Encana Corporation Canadian Pension Plan established with effect from January 1, 2003 including any changes, amendments or modifications thereto which have been made or which may from time to time be made by the Company.

 

1.10 “Pension Plan Revenue Rules” means the provisions of the Income Tax Act (Canada), and any relevant regulations thereto, as may be amended from time to time, pertaining to pension plans or funds registered under the Income Tax Act (Canada) as they may be applicable to the Pension Plan

 

1.11 “Predecessor Arrangements” means the Supplemental Pension Plan for Employees of PanCanadian Energy Corporation, all individual pension agreements between the Company and certain current and former executives of the Company and all unfunded pension commitments made to certain former executives of the former Conwest Exploration Company Ltd. in effect immediately prior to January 1, 2011, identified in Schedule A.

 

1.12 “Supplemental Plan” means this Encana Corporation Canadian Supplemental Pension Plan established with effect from January 1, 2003, including any changes, amendments or modifications thereto which have been made or which may from time to time be made by the Company.

 

1.13 “Supplemental Plan Revenue Rules” means the provisions of the Income Tax Act (Canada), and any relevant regulations thereto, as may be amended from time to time, pertaining to retirement compensation arrangements registered under the Income Tax Act (Canada) as they may be applicable to the Supplemental Plan


Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015

   Page 3

 

1.14 “Vesting Date” means the vesting date of the Participant determined in accordance with the Pension Plan or, if applicable, an earlier vesting date specified in the individual pension agreement between the Participant and the Company.


Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015

   Page 4

 

Article 2 Establishment of Supplemental Plan

 

2.01 Effective January 1, 2003, the Supplementary Retirement Benefit Plan for Employees of Alberta Energy Company Ltd. was amended, restated and renamed as the Encana Corporation Canadian Supplemental Pension Plan. Subject to subsection 2.02(b), also effective January 1, 2003, the Predecessor Arrangements were superseded and merged into the Supplemental Plan

 

2.02      (a)      Subject to subsection (b), the liabilities of all the Predecessor Arrangements have been merged into the Supplemental Plan.
     (b)      Notwithstanding Section 2.01 and subsection (a), the Supplemental Plan neither assumes nor continues the liability for defined contribution entitlements under the Supplemental Pension Plan for Employees of PanCanadian Energy Corporation settled by lump sum payments to the participants thereunder.
     (c)      For greater certainty, all other entitlements in respect of participants who retired, died or terminated employment under the provisions of the Predecessor Arrangements are continued under the Supplemental Plan. The provisions of the Supplemental Plan shall not alter these continuing entitlements except as may be provided in Articles 1 through 7.

 

2.03 Subject to Section 2.02(b), nothing in the Supplemental Plan shall have the effect of reducing the aggregate of the benefits provided to December 31, 2002 under the Predecessor Arrangements based on actual service rendered and earnings paid to such date, including any ancillary benefit for which the participant thereunder had met, at such date, all the eligibility requirements under such Predecessor Arrangements.

 

2.04 The Supplemental Plan as contained herein shall be applicable to Participants who are Employees of the Company on or after January 1, 2011. Benefits in respect of a Participant whose employment ceased prior to January 1, 2011 shall be determined in accordance with the terms of the Supplemental Plan at the time of such cessation of employment except as may be specifically provided herein.

 

2.05 The Supplemental Plan is intended to be a retirement compensation arrangement under the Supplemental Plan Revenue Rules.

 

2.06 The Supplemental Plan is intended to be exempt from provincial and federal pension legislation.


Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015

   Page 5

 

Article 3 Eligibility and Participation

 

3.01 Each person entitled to benefits under the Predecessor Arrangements, excluding the persons for which defined contribution entitlements were previously settled as described in subsection 2.02(b), shall become a Participant under the Supplemental Plan.

 

3.02 Each DB Participant, not otherwise a Participant in accordance with Section 3.01, shall become a Participant if:

 

  (a) his DB Pension Benefits under the Pension Plan are limited by the Maximum Pension Provisions; or

 

  (b) his individual pension agreement with the Company entitles him to pension benefits in excess of his DB Pension Benefits under the Pension Plan.

 

3.03 Notwithstanding section 3.01, a DC Participant who, on December 31, 2002, participated in the Retirement Pension Plan for Employees of PanCanadian Energy Corporation, shall become a Participant under the Supplemental Plan if he satisfies the conditions set forth in Appendix A. For greater certainty, a DC Participant who does not satisfy the conditions of this Section 3.03 shall not become a Participant.


Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015

   Page 6

 

Article 4 Funding and Investments

 

4.01 All assets of, and contributions to, the Supplemental Plan shall be held in the Fund and administered by the Funding Agency in accordance with the terms of the Funding Agreement.

 

4.02 A Participant shall neither be required nor permitted to make any contributions under the Supplemental Plan.

 

4.03 The Company shall have primary responsibility for the payment or reimbursement of all third party costs directly attributable to the administration of the Supplemental Plan but may direct that such costs be paid from the Fund.

 

4.04 Effective April 1, 2015, the Company shall, in its sole and unfettered discretion, determine the amounts to be contributed to the Fund and the timing of any contributions to the Fund.

 

4.05 The Company shall require the Actuary to conduct an actuarial valuation in accordance with Section 4.05 not less frequently than every three years; provided, however, that nothing herein shall obligate the Company to make contributions to the Fund.

 

4.06 When preparing an actuarial valuation, the Actuary shall calculate three measures of the Supplemental Plan liabilities:

 

  (a) the hypothetical going-concern funding liabilities of the Supplemental Plan, determined using the going-concern methods and assumptions adopted for the most recent funding valuation of the Pension Plan, but with the assumed investment return rate reduced by the rate of refundable tax expected to be payable by the Fund taking into account the Fund’s investment policy;

 

  (b) the hypothetical solvency funding liabilities of the Supplemental Plan, determined using the solvency funding methods and assumptions adopted for the most recent funding valuation of the Pension Plan; and

 

  (c) the pension obligation of the Supplemental Plan, determined using the best-estimate methods and assumptions adopted for corporate financial reporting purposes with respect to the Supplemental Plan.


Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015

   Page 7

 

For greater certainty:

 

  (d) the Supplemental Plan benefits payable in accordance with Appendix A shall be included in the actuarial valuation, but only in respect of DC Participants who have already retired as of the valuation date;

 

  (e) no refundable tax adjustment shall be applied in calculating the liability measures pursuant to subsections (b) and (c); and

 

  (f) the Company expressly reserves the right to modify or discontinue any of the liability measures defined in subsections (a), (b) and (c) and to modify or discontinue its funding policy in relation thereto.

 

4.07 The Company may from time to time make withdrawals from the Fund in such amount as it may determine, provided the assets of the Fund, including the value of any refundable tax remitted pursuant to the Supplemental Plan Revenue Rules but not yet refunded, exceed the amount certified by the Actuary that, as of the date of withdrawal, is sufficient to settle all accrued benefits under the Supplemental Plan pursuant to Section 7.02.

 

4.08 The Company may direct, from time to time, that all or any of the benefits payable under the Supplemental Plan shall be paid by some means, at its absolute discretion, other than from the Fund. In the absence of such direction, and provided that the assets of the Fund, including the refundable tax remitted pursuant to the Supplemental Plan Revenue Rules and not yet refunded, are sufficient, benefits provided hereunder shall be payable from the Fund.

 

4.09 Provided that the Supplemental Plan has not been terminated, if the assets of the Fund, including the refundable tax remitted pursuant to the Supplemental Plan Revenue Rules and not yet refunded, are insufficient to pay, when due, any benefit provided hereunder, such benefit shall be payable by the Company. For greater certainty, if the Supplemental Plan is terminated, the benefits then accrued under the Supplemental Plan shall be determined and payable in accordance with the provisions of Section 6.03.

 

4.10 The Company shall direct the investment of the Fund, provided, however, that investment in Company securities is prohibited except as would be permitted under Pension Plan Revenue Rules and Applicable Pension Laws if the Supplemental Plan were registered thereunder.


Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015

   Page 8

 

4.11 No person shall have any interest in, nor right to, any part of the Fund except, and to the extent, provided in the Supplemental Plan.

 

4.12 The Company may remove the Funding Agency and upon such removal, or upon resignation of the Funding Agency, the Company shall appoint a successor Funding Agency.


Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015

   Page 9

 

Article 5 Administration

 

5.01 The Company shall have the sole responsibility for, and the sole control of, the Supplemental Plan’s operation and administration and shall have the power and duty to take all action and make all decisions and interpretations which shall be necessary or appropriate in order to administer and carry out the provisions of the Supplemental Plan, including the power to make and enforce such rules and regulations as it may deem necessary, all of which shall be conclusive and binding on Employees, Participants, Spouses and Designated Beneficiaries.

 

5.02 To the extent possible, the interpretation of the Supplemental Plan shall be consistent with the interpretation of the Pension Plan.

 

5.03 If the Company receives evidence which, in its absolute discretion, is satisfactory to it that a person entitled to receive a payment under the Supplemental Plan is a minor or is physically or mentally incompetent, the Company may direct the payment to any representative, trustee, guardian, attorney or other person or persons entitled at law to receive the payment on the person’s behalf. Such payment shall be a complete discharge of the Company’s payment obligation under the Supplemental Plan.

 

5.04      (a)      The Company shall provide, upon a request by a Participant entitled to benefits or rights hereunder or, following the death of such a Participant, upon a request of the Spouse or Designated Beneficiary, a copy of the Supplemental Plan, and any amendments thereto, within a reasonable period of time.

 

  (b) The Company shall provide, within a reasonable period of time, an explanation or summary of the Supplemental Plan and of any amendments to the Supplemental Plan to all Participants entitled to benefits or rights hereunder.

 

  (c) A statement of the accrued benefits under the Supplemental Plan to or in respect of each Participant shall be provided at the same time as the corresponding statement of DB Pension Benefits is provided to Participants in respect of the Pension Plan.

 

5.05 Notwithstanding any other provision of the Supplemental Plan, no amount shall be payable to or in respect of a Participant until such Participant, the Participant’s Spouse or Designated Beneficiary, as applicable, has provided the Company with all information reasonably required, as determined by the Company, to determine and pay any amounts due under the Supplemental Plan and the Pension Plan.


Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015

   Page 10

 

5.06 Matters in dispute between the parties in relation to this Supplemental Plan may be resolved by way of arbitration before an arbitration panel in accordance with the Alberta Arbitration Act. The arbitration panel shall consist of a single arbitrator if the parties agree upon one. If the parties do not so agree, the arbitration panel shall consist of three arbitrators, one to be appointed by each party and a third to be chosen by the first two named. The decision of the arbitration panel shall be binding upon the parties and their respective successors and assigns. The arbitration panel shall award costs in respect of an arbitration in its sole discretion. All decisions of the arbitration panel shall be final and shall not be subject to an appeal.

 

5.07 The Board of Directors, Board Committee or any member thereof, or any duly authorized officer or employee of the Company shall not be liable to any person whatsoever for anything done or omitted to be done in respect of the administration of the Supplemental Plan, the Fund, or any matter pertaining thereto, except where the act or omission was due to fraud, wilful misconduct or gross negligence on the part of the person against whom a claim is made.

 

5.08 The Company shall indemnify and save harmless any director, officer or employee of the Company whose responsibilities or duties on behalf of the Company involve any aspect of the administration of the Supplemental Plan, the Fund or any matter pertaining thereto, from personal liability, including all legal costs, fees and related expenses, in respect of their respective acts or omissions in respect of the administration of the Supplemental Plan, the Fund or any matter pertaining thereto, except where the act or omission was due to fraud, wilful misconduct or gross negligence on the part of the director, officer or employee.

 

5.09 Whenever the records of the Company are used for the purposes of the Supplemental Plan, such records shall be conclusive of the facts with which they are concerned.


Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015

   Page 11

 

5.10 In the absence of actual notice to the contrary, the Company shall authorize payment in accordance with information provided to the Company by the Participant. If there is a dispute as to whether a person is a Spouse, Designated Beneficiary or other person entitled to payments hereunder, or where two or more persons make conflicting claims in respect of a benefit, or where a person makes a claim that is inconsistent with information provided by the Participant, the Company shall take such steps or action it deems reasonable, including without limitation, obtaining court direction and none of the Board of Directors, the Company or any officer or employee thereof, the Supplemental Plan or the Fund shall be held liable for any delays in payment of benefits hereunder or for any loss or damage of any nature whatsoever as a result of any such dispute or the Company’s steps, actions or decisions in respect of the resolution of same.


Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015

   Page 12

 

Article 6 Amendment or Termination

 

6.01 The Company retains the right to amend or modify or terminate the Supplemental Plan in whole or in part, at such time and from time to time, and in such manner and to such extent as it may deem advisable, provided that no such amendment, modification or termination shall have the effect of reducing any benefit accrued to the date of the amendment, modification or termination under the Supplemental Plan by a Participant, Spouse or Designated Beneficiary based on actual service rendered and earnings paid to the effective date of the amendment, except as provided for in accordance with Section 6.03 in the case of termination of the Supplemental Plan. For greater certainty, any action taken in accordance with this Section may reduce any ancillary benefits as described in Applicable Pension Laws and as may otherwise be provided under the Supplemental Plan, unless the Participant affected has met all eligibility requirements under the Pension Plan necessary to exercise the right to receive such ancillary benefits.

 

6.02 Any amendment or termination of the Supplemental Plan shall be made by:

 

  (a) the adoption of a resolution by the Board of Directors; or

 

  (b) the execution of a certificate by an officer of the Company duly authorized by resolution of the Board of Directors to amend or terminate the Supplemental Plan; or

 

  (c) if so empowered by the Board of Directors, and to the extent of such empowerment, the adoption of a resolution by a Board Committee.


Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015

   Page 13

 

6.03 Termination Priorities

In the event the Supplemental Plan is terminated at any time, each Participant shall be deemed to have attained his Vesting Date and the assets of the Fund shall be allocated to provide, to the extent of said assets, the benefits then accrued under the Supplemental Plan. Accrued benefits payable under the Supplemental Plan shall be computed using the date the Participant ceases to accrue Continuous Service, if the Pension Plan is terminated at the same time, or using such other date as the Company, in its sole discretion, shall determine. Such allocation of available assets shall be made in the following order of priority, after providing for the expenses of terminating the Supplemental Plan and the Fund:

 

  (a) firstly, to provide benefits to Participants, Spouses, Designated Beneficiaries, and other persons entitled to payments under the Supplemental Plan who are in receipt of benefits, or were entitled to receive benefits, in respect of Continuous Service which was terminated prior to the effective date of termination of the Supplemental Plan in accordance with this Article 6;

 

  (b) secondly, after satisfying the requirements of subsection (a) above, to provide benefits to Participants who were eligible to retire in accordance with the provisions of the Pension Plan as at the effective date of termination of the Supplemental Plan in accordance with this Article 6;

 

  (c) thirdly, after satisfying the requirements of subsections (a) and (b) above, to provide for the balance of benefits accrued by Participants in accordance with Section 10.03 of the Supplemental Plan;

 

  (d) fourthly, in the event that any surplus remains after all benefits referred to in subsections (a), (b) and (c) above have been provided, such surplus shall be refunded to the Company;

 

  (e) notwithstanding subsection (d), in the event any surplus remains after all benefits referred to in subsections (a), (b) and (c) above have been provided, the Company may, in its sole discretion, direct that all or a portion of such surplus be used to increase the benefits of Participants in an equitable manner determined by the Company after consultation with the Actuary; and


Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015

   Page 14

 

  (f) in the event that the amount of assets remaining to provide the benefits stipulated in any of the categories described in subsections (a), (b), and (c) above is not adequate to provide such benefits, the amount of assets remaining for such category shall be allocated on a prorated basis to each Participant, Spouse, Designated Beneficiary, and other person entitled to payments under the Supplemental Plan, who is entitled to benefits under the category, as the case may be, based on the Commuted Value of the benefits attributable to such Participants, Spouses, Designated Beneficiaries, and other persons entitled to payments under the Supplemental Plan.


Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015

   Page 15

 

Article 7 General Conditions

 

7.01      (a)      The establishment and continuance of the Supplemental Plan shall not be deemed to constitute a contract of employment between the Company and any Employee or Participant and further, shall not be deemed to create any rights between the Company and any person beyond those described and provided herein, including, but not limited to, any right or entitlement to non-pension retirement benefits.

 

  (b) Nothing contained herein shall be deemed to give to an Employee or Participant the right to be retained in the service of the Company or to interfere with the right of the Company to terminate the employment of such Employee at any time.

 

7.02 Notwithstanding any provision herein to the contrary, the Company may, in its sole discretion and at any time, elect to immediately settle, in whole or in part, the accrued benefits of any Participant, Spouse or Designated Beneficiary under the Supplemental Plan. Settlement shall be by way of a lump sum payment to the Participant, Spouse or Designated Beneficiary. The amount of the lump sum payment shall be of Actuarial Equivalent Value to the benefits accrued to the date of settlement under the Supplemental Plan by the Participant, Spouse or Designated Beneficiary based on actual service rendered and Earnings paid to the date of settlement. For greater certainty, such accrued benefits shall not include any ancillary benefits as described in Applicable Pension Laws and as may otherwise be provided under the Supplemental Plan unless the Participant whose benefits are affected has met, or if deceased had met, all eligibility requirements under the Pension Plan necessary to exercise the right to receive such ancillary benefits. Any such lump sum payment shall constitute a full discharge of the obligations of the Company, the Fund and the Supplemental Plan related to the amount so paid.

 

7.03 All benefits to which a person is, or may become, entitled pursuant to the Supplemental Plan are for the support and maintenance of such person and may not in any manner, in whole or in part, be surrendered, assigned, alienated, sold, transferred, pledged, hypothecated, encumbered or charged and, except as otherwise required by law, shall not be subject to attachment or otherwise by, or on behalf of, the creditors of such person.


Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015

   Page 16

 

7.04      (a)      Notwithstanding Section 7.03, but subject to any applicable federal or provincial law, a benefit under the Supplemental Plan may:

 

  (i) in the case of proceedings in respect of the division of matrimonial property, be assigned, pledged, charged, encumbered or alienated to satisfy a division of matrimonial property, pursuant to a written agreement, decree, order or judgement of a competent tribunal; or

 

  (ii) in the case of proceedings in respect of support or maintenance, be subject to execution, seizure or attachment in satisfaction of an order for support or maintenance, pursuant to a decree, order or judgement of a competent tribunal provided such execution, seizure or attachment is in respect only of benefits in pay.

 

  (b) The Participant’s benefit entitlements shall be reduced to account for the value of any settlement made under subsection (a).

 

7.05 When calculating the DB Pension Benefits actually payable under the Pension Plan for the purposes of Articles 8, 9 and 10:

 

  (a) the presence of a deficit in the Pension Plan shall not be considered to reduce the DB Pension Benefits actually payable and the Supplemental Plan shall not hold Participants harmless from such a deficit; and

 

  (b) the distribution to Participants of a surplus in the Pension Plan shall be considered to be part of the DB Pension Benefits payable and may, in the Company’s sole discretion, reduce the Supplemental Plan benefits otherwise payable, on an Actuarial Equivalent Value basis.

 

7.06 In the Supplemental Plan, references to the masculine include the feminine and vice versa; references to the singular include the plural and vice versa, as the context requires; and references to a subsection, Section, Article or Appendix mean a subsection, Section, Article or Appendix of the Supplemental Plan.

 

7.07 If a Participant and his Spouse or Designated Beneficiary die at the same time or in circumstances rendering it uncertain which of them survived the other, the Participant shall be deemed, for the purposes of the Supplemental Plan, to have survived the Spouse or Designated Beneficiary.


Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015

   Page 17

 

7.08 All amounts payable under the Supplemental Plan are stated and shall be paid in the lawful currency of Canada. If an amount of benefit or earnings entering into the computation of any benefit or contribution hereunder is expressed in a currency other than that of Canada, such amount shall be converted to Canadian currency prior to such computation based upon exchange rates established by the Company.

 

7.09 Headings wherever used herein are for reference purposes only, and do not limit or extend the meaning of any of the Supplemental Plan’s provisions.

 

7.10 All amounts payable under the Supplemental Plan shall be subject to such deductions and withholdings as may be required by law, including tax withholdings.

 

7.11 Each provision of the Supplemental Plan or part thereof is distinct and severable, and if any provision of the Supplemental Plan or part thereof is determined to be void or unenforceable in whole or in part, such determination shall not affect the validity or enforcement of any other provision or part thereof.

 

7.12 This document, as it may be amended from time to time, constitutes the Supplemental Plan. No statement in any other document or communication shall create or confer any right or obligation other than as set out in this document nor may any such document or communication be used or relied upon to interpret or vary any terms or provisions of the Supplemental Plan.


Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015

   Page 18

 

Article 8 DB Retirement Benefits

 

8.01 Subject to Section 7.02, on each date that a DB Participant, his Spouse or Designated Beneficiary, or any person claiming through any of them, as the case may be, (the “Payee”) receives a payment of DB Pension Benefits under the Pension Plan, the Company shall also make a payment to the Payee equal to the amount, if any, by which:

 

  (a) the amount of DB Pension Benefits on that date that would be payable under the Pension Plan to the Payee, calculated without application of the Maximum Pension Provisions, and taking into account the terms of any individual pension agreement between the DB Participant and the Company;

exceeds:

 

  (b) the amount of DB Pension Benefits on that date actually payable to the Payee under the Pension Plan, taking into account the Maximum Pension Provisions.

 

8.02 Benefits payable under Predecessor Arrangements in respect of Participants who retired, died or terminated employment with the Company or a predecessor thereto prior to January 1, 2003 shall continue to be paid on the same terms as provided in the Predecessor Arrangements, except that such benefits shall be paid from the Fund.


Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015

   Page 19

 

Article 9 DB Death Benefits

 

9.01 Subject to Section 7.02, the death benefit payable under the Supplemental Plan, if any, on the death of a DB Participant prior to his actual retirement date shall be the lump sum amount by which:

 

  (a) the Commuted Value of the DB Pension Benefits that would be payable on death under the Pension Plan calculated without application of the Maximum Pension Provisions, and taking into account the terms of any individual pension agreement between the DB Participant and the Company;

exceeds:

 

  (b) the Commuted Value of the DB Pension Benefits actually payable on death under the Pension Plan, taking into account the Maximum Pension Provisions.

 

9.02 The death benefit payable under Section 9.01 shall be payable to the same person who receives the death benefit actually payable under the Pension Plan.

 

9.03 The death benefit payable under the Predecessor Arrangements, if any, shall be as stated in the Predecessor Arrangements.


Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015

   Page 20

 

Article 10 DB Termination Benefits

 

10.01 A DB Participant who terminates employment with the Company for any reason other than death or retirement prior to his Vesting Date shall not be entitled to any benefits under the Supplemental Plan.

 

10.02 A DB Participant who terminates employment with the Company for any reason other than death or retirement after his Vesting Date and elects to receive deferred DB Pension Benefits under the Pension Plan shall be entitled to benefits under Article 8.

 

10.03 A DB Participant who terminates employment with the Company for any reason other than death or retirement after his Vesting Date and elects to transfer the Commuted Value of his deferred DB Pension Benefits that would be payable under the Pension Plan shall be entitled to a lump sum payment equal to the amount, if any, by which:

 

  (a) the Commuted Value of the deferred DB Pension Benefits that would be payable under the Pension Plan to the DB Participant at his termination date, calculated without application of the Maximum Pension Provisions, and taking into account the terms of any individual pension agreement between the DB Participant and the Company;

exceeds:

 

  (b) the Commuted Value of the DB Pension Benefits actually payable under the Pension Plan, taking into account the Maximum Pension Provisions.


Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015

   Page 21

 

Article 11 Cost-of-Living Adjustments

 

11.01 The Company may, at its sole discretion, from time to time increase the amount of any retirement income benefit payable to or in respect of a DB Participant under the Supplemental Plan.

 

11.02 Any ad hoc adjustment made in accordance with Section 11.01 shall be payable in the same form as the basic benefit payable under the Supplemental Plan.

 

11.03 Notwithstanding any other provision of the Supplemental Plan, the Company may, at its sole discretion, from time to time offset from the amount of the retirement income benefit otherwise payable hereunder, or from any ad hoc adjustment granted under Section 11.01, the amount of any ad hoc adjustment or other benefit improvements provided to the DB Participant from time to time under the Pension Plan following the commencement of retirement income under the Pension Plan.


Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015

  

Appendix A

Page A-1

 

TEMPORARY ENHANCEMENT FOR CERTAIN RETIRING DC PARTICIPANTS

 

1. Definition and Application

 

  (a) In this Appendix A, the following terms shall, unless the context clearly indicates otherwise, have the following meanings:

 

  (i) “Enhanced Supplemental DC Benefit” means the supplemental pension benefit determined in accordance with subsection 2 of this Appendix A.

 

  (ii) “PEC Plan” means the Retirement Pension Plan for Employees of PanCanadian Energy Corporation.

 

  (iii) Transitional DC Participant” means a DC Participant who:

 

  (A) participated in the PEC Plan on December 31, 2002;

 

  (B) has attained age 55 but not age 60 prior to May 31, 2006; and

 

  (C) retires under Article 3.5 of the Pension Plan.

 

  (b) This Appendix A shall apply only to a Transitional DC Participant.

 

2. Enhanced Supplemental DC Benefits

A Transitional DC Participant shall be entitled to receive an Enhanced Supplemental DC Benefit equal to:

 

(a)    (i)    10%, if the DC Participant has completed 25 or more years of relevant service, as defined under the PEC Plan, as at the date of his retirement; or
   (ii)    8%, otherwise.

times

 

  (b) the Transitional DC Participant’s annual rate of Earnings at the date of his retirement;

times

 

  (c) the lesser of:

 

  (i) 60 minus the age in years and months of such Transitional DC Participant at the date of his retirement; and

 

  (ii) the number of years and months from the date of his retirement until May 31, 2006, inclusive.


Encana Corporation Canadian Supplemental Pension Plan

Amended and Restated effective April 1, 2015

  

Appendix A

Page A-2

 

3. Payment of Enhanced Supplemental DC Benefits

 

  (a) Upon the retirement of a Transitional DC Participant under the Pension Plan, the Transitional DC Participant’s Enhanced Supplemental DC Benefit shall be paid to him in equal monthly instalments commencing on the last day of the month in which retirement occurs or is deemed to occur under the Pension Plan. The number of instalments made shall be 60, or such lesser number as the Transitional DC Participant may request and the Company may approve. The monthly payments shall be calculated so as to be of Actuarial Equivalent Value to the Enhanced Supplemental DC Benefit as of the first day of the month coincident with or next following the date upon which the retirement occurs or is deemed to occur under the Pension Plan.

 

  (b) If a Transitional DC Participant dies after the distribution of his Enhanced Supplemental DC Benefit has commenced, his Spouse or Designated Beneficiary, as applicable, shall be entitled to receive in a lump sum the Actuarial Equivalent Value of the remaining instalments, determined using the same discount rate as was used to determine the original instalment amounts.

Exhibit 10.31

EnCana Corporation

Canadian Investment Plan

Effective September 1, 2002


EnCana Corporation Canadian Investment Plan

Effective September 1, 2002

  

 

 

Purpose of the Plan

The EnCana Corporation Canadian Investment Plan has been established to provide Employees with an opportunity to save for short-term, long-term and retirement savings objectives. In addition, the Plan provides an opportunity for Employees to participate in the future of the Company through share ownership.


EnCana Corporation Canadian Investment Plan

Effective September 1, 2002

   i

 

 

Table of Contents    Page  

Article I

  Definitions      1   

Article II

  Establishment of the Plan      3   

Article III

  Eligibility and Participation      3   

Article IV

  Enrollment in the Plan      3   

Article V

  Contributions to the Plan      4   

Article VI

  Investment of Contributions      5   

Article VII

  Withdrawals from the Plan      6   

Article VIII

  Termination of Participation      7   

Article lX

  Administration of the Plan      7   

Article X

  Amendment or Termination of the Plan      8   

Article XI

  General Conditions      8   


EnCana Corporation Canadian Investment Plan

Effective September 1, 2002

   1

 

 

Article I Definitions

 

1.1 For the purposes of this Investment Plan each of the following capitalized terms shall have the meaning referred to below:

“Board of Directors” means the Board of Directors of EnCana Corporation, as may be constituted from time to time.

“Cash Account” means a cash account established specifically by the Trustee for certain Participants as provided herein.

“Company” means EnCana Corporation and any affiliate or subsidiary company or any partnership which is wholly owned by EnCana Corporation, its affiliates and/or subsidiary companies, or any of them, and which is designated as a participating company or partnership by the Company or is deemed to be a participating company under Revenue Rules. Notwithstanding the foregoing, where any reference in the Plan is made to any action to be taken, consent, approval or opinion to be given, discretion or decision to be exercised by the Company, “Company” means EnCana Corporation acting through the Board of Directors or any authorized committee, officer or delegate for the purposes of the Plan.

“Earnings” means the basic periodic salary of the Participant, excluding, without limitation, any bonus or any other additional periodic or discretionary payment, long-term incentive compensation, living allowance, overtime payment, shift differential, payment in lieu of vacation, contribution or premium paid by the Company in respect of any employee benefit or otherwise, honorarium, director’s fee, commission, or any other type of additional earnings of any nature whatsoever as may be determined by the Company in its sole discretion. “Earnings” includes the portion of earnings with a foreign associate or affiliate of the Company recognized by the Company as basic periodic salary and, in which case, the Earnings are deemed to have been received from the Company.

“Effective Date” means September 1, 2002.

“Employee” means any person who is an employee of the Company, as determined by the Company in its sole discretion, excluding a member of the Board of Directors who is not employed by the Company in another capacity.    Any person who is:

 

  (a) suffering from a physical or mental impairment that prevents the individual from performing the duties of the employment in which the person was engaged prior to the commencement of the impairment;

 

  (b) receiving a disability benefit from a Company-sponsored or government-sponsored disability insurance program; and

 

  (c) recognized by the Company as an employee

shall be deemed to be an Employee for the purposes of this Plan only, subject to the terms herein.


EnCana Corporation Canadian Investment Plan

Effective September 1, 2002

   2

 

 

“EnCana Share Account” means the account or other facility in which certain contributions to the Plan which have been invested in common shares of the Company may be held, as described in Article 6.4.

“EnCompass Benefits Program” means the benefits program for Canadian employees, as may be established and amended by the Company from time to time.

“Fund” means the corpus and all earnings and/or additions thereon and thereto held by the Trustee under the Trust Agreement.

“Leave of Absence” means a Company approved leave with or without pay depending on the nature of the leave.

“Leave of Absence Policy” means the policy or practice which may be established and amended by the Company from time to time in respect of leaves of absences by Employees, whether paid or unpaid.

“High Performance Results Award” means the discretionary incentive payment which may be granted by the Company in its sole discretion to Employees under such short-term incentive program as may be established and amended by the Company from time to time.

“Participant” means any Employee who fulfills the eligibility requirements set forth in Article III who enrolls in the Plan in accordance with Article IV.

“Participant’s Accounts” means all cash, securities, mutual funds and other assets derived from contributions by the Participant and from the Company pursuant to Article V and which are held, from time to time, by the Trustee under the Plan for the benefit of a Participant. These accounts will be comprised of an EnCana Share Account (established as an Employee Profit Sharing Account), and may include, at the Participant’s direction, a Portfolio Non-Registered Retirement Savings Plan Account and a Portfolio Registered Retirement Savings Plan Account.

“Plan” means the EnCana Corporation Canadian Investment Plan, established with effect from September 1, 2002, including any amendments that may be made by the Company from time to time.

“Registered Retirement Savings Plan” means an investment option qualified for such purposes under the Income Tax Act (Canada), as may be amended from time to time.

“Retirement Plan” means the EnCana Corporation Canadian Pension Plan effective January 1, 2003, including any amendments that may be made by the Company from time to time.

“Revenue Rules” means the provisions of the Income Tax Act (Canada) and the rules and regulations adopted thereunder by the Minister of National Revenue, as may be amended from time to time.

“Trustee” means the trustee, or successor thereof, appointed by the Company to hold the Fund pursuant to the terms and conditions of the Trust Agreement.


EnCana Corporation Canadian Investment Plan

Effective September 1, 2002

   3

 

 

“Trust Agreement” means the agreement or contract entered into between the Company and the Trustee establishing and maintaining the Fund, including any amendments thereto, pursuant to which the Trustee shall administer the Plan.

Article II Establishment of the Plan

 

2.1 Plan Commencement

This Plan shall be established effective September 1, 2002.

 

2.2 Components of the Plan

This Plan is comprised of an EnCana Share Account, a Portfolio Non-Registered Retirement Savings Plan Account and a Portfolio Registered Retirement Savings Plan Account; defined herein as the Participant’s Accounts.

 

Article III Eligibility and Participation

 

3.1 Eligibility and Commencement

An Employee shall become eligible to become a Participant of the Plan on the first day of the month coincident with or following his appointment as a permanent Employee.

 

3.2 Total and Permanent Disability

A Participant who is separated from employment by reason of total and permanent disability as determined by the Company’s long term disability insurance carrier shall continue to be a Participant, but Employee and Company contributions shall cease.    

 

3.3 Leave of Absence

A Participant on a Leave of Absence shall continue as a Participant during such periods subject to such terms and conditions of the Leave of Absence Policy, or such other terms and conditions as may be approved and/or required by the Company from time to time.

Article IV Enrollment in the Plan

 

4.1 Enrollment Procedure

To enroll as a Participant, an Employee must complete, sign and deliver such enrollment forms and/or other documentation or complete such processes as may be required by the Trustee and/or the Company from time to time.


EnCana Corporation Canadian Investment Plan

Effective September 1, 2002

   4

 

 

Article V Contributions to the Plan

 

5.1 Employee Contributions

A Participant may elect to contribute to the Plan in increments of 1% of the Participant’s Earnings, up to a maximum of 25% of his Earnings .

 

5.2 Rate of Contributions

The Participant shall select his rate of contribution upon enrollment in the Plan. Thereafter, Participant shall be entitled to increase or decrease such contribution rate in increments of 1% of Earnings, effective as of the first day of any subsequent month, provided the Participant provides such notice as may be required by the Company and/or the Trustee from time to time.    Contributions shall be made by payroll deduction from the Participant’s Earnings unless there are sufficient flexible benefits credits generated as a result of the Participant’s participation in the EnCompass Benefits Program.

 

5.3 Suspension of Contributions

A Participant may elect to suspend contributions, effective the first day of the month following such election, at any time upon providing such notice as may be required by the Company and/or the Trustee from time to time. In such case, the Participant shall remain a Participant subject to the provisions of Article VIII. The Participant may elect to recommence contributions at any time by providing such notice as may be required by the Company and/or the Trustee. Where the Participant so elects, contributions shall recommence effective the first day of the month following the date of such election.

 

5.4 Participants on International Assignment

Due to legislative or other restrictions, the contribution rate of Participants assigned by the Company to international locations may be restricted by the Company for the duration of such assignment, and the Company shall take such steps as necessary to comply with such restrictions in accordance with Articles 6.5 and 9.6.

 

5.5 Contributions During Leave of Absence

A Participant granted an unpaid Leave of Absence may elect to make contributions, in increments of 1% of Earnings, to a maximum of 25% of Earnings, for the duration of the leave, provided such contributions are permitted by the Company’s Leave of Absence Policy (as applicable) and the Participant provides such notice as may be required by the Company and/or the Trustee from time to time including, where requested, advance payment for such contributions in such intervals and in such form(s) as may be required by the Company from time to time.

A Participant granted a paid Leave of Absence shall be entitled to continue to make contributions for the duration of the leave.


EnCana Corporation Canadian Investment Plan

Effective September 1, 2002

   5

 

 

5.6 Company Contributions

The Company shall contribute to the Plan on behalf of each Participant an amount equal to 100% of the Participant’s contribution under Article 5.1, up to a maximum of 5% of the Participant’s Earnings. If the credits generated through the EnCompass Benefits Program are insufficient to enable the Participant’s contribution to be matched by the Company as provided herein, the remaining funds will be funded by payroll deduction from the Participant’s Earnings.

 

5.7 Corporate High Performance Awards

Subject to the attainment of specified annual performance targets, as may be established and approved by the Company from time to time in its sole discretion, the Company may contribute a portion of the Participant’s High Performance Results Award to the Participant’s EnCana Share Account.

 

5.8 Deposit of Contributions

All contributions by Participants and by the Company shall be forwarded by the Company on a periodic basis to the Trustee for investment as described in Article VI.

Article VI Investment of Contributions

 

6.1 Employee and Company Contributions

Upon enrollment in the Plan, the Participant shall provide instructions to the Trustee as to the investment of his contributions by submitting such forms and/or completing such processes as may be required by the Trustee and/or the Company from time to time. The Participant may elect that his contributions be invested in one or more of the registered or non-registered investment options offered by the Trustee from time to time.

 

6.2 Default Investment Option

Where the Participant fails to provide the Trustee with investment instructions in accordance with Article 6.1, the Participant’s contributions shall be directed, provided an application form has been completed by the Participant, by the Trustee to an investment option as determined by the Company from time to time until such time as investment instructions are provided by the Participant to the Trustee in accordance with Article 6.1.

Where the Participant elects to direct their funds to the Portfolio Registered Retirement Savings Plan account, but fails to complete an application form and/or such other documentation as may be required by the Trustee or the Company from time to time, the funds shall be directed, provided a Portfolio Non-Registered Retirement Savings Plan account application form has been completed by the Participant, by the Trustee to an investment option as determined by the Company from time to time in the Portfolio Non-Registered Retirement Savings Plan Account until such time as a Portfolio Registered Retirement Savings Plan account application form and/or other required documentation, completed by the Participant, has been received by the Trustee.


EnCana Corporation Canadian Investment Plan

Effective September 1, 2002

   6

 

 

6.3 Change of Investments

A Participant may reallocate investments held in his Participant’s Account(s) and/or change the investment direction for future contributions to his Participant’s Account(s) at any time, provided the Participant provides such notice as may be required by the Trustee from time to time.

 

6.4 EnCana Share Account

Company contributions and as necessary, Participant contributions representing the Company match to a maximum of 5% of Earnings under Article 5.6, will be invested in common shares of the Company through the facility of a recognized stock exchange.

 

6.5 Designation of Contributions during International Assignment

Where legislative or other restrictions limit the ability of a Participant and/or the Trustee in the holding and/or trading of investments, the Company, in its sole discretion, shall be entitled to take or to instruct the Trustee to take, as appropriate, such action as the Company deems necessary to comply with applicable law and/or such restrictions, including but not limited to, directing the Trustee to transfer all or part of a Participant’s Accounts, as well as any of Participant’s subsequent contributions, to a Cash Account.

Article VII Withdrawals from the Plan

 

7.1 Participant’s Account Withdrawal

A Participant may withdraw a portion or all of his Participant Account upon providing such notice as may be required by the Trustee from time to time. Such withdrawal shall be subject to such withdrawal and/or transfer fees and/or other charges as may be prescribed by the Trustee from time to time.

 

7.2 Form of Withdrawal

 

  a) Pursuant to Article 7.1, a Participant may withdraw Company shares in the EnCana Share Account in any combination of certificates or cash or, to the extent permitted by the Trustee, partial units or partial shares. The cash payment, when so elected, shall be equal to the value of the units and shares realized upon the sale or disposition of such units or shares by the Trustee, subject to required settlement processes and fees.

 

  b) Pursuant to Article 7.1, a Participant may withdraw funds from his Portfolio Non-Registered Retirement Savings Account and/or Portfolio Registered Retirement Savings Plan Account. In the case of withdrawals from the Portfolio Registered Retirement Savings Plan Account, the Trustee will withhold such tax as may be required by applicable law and/or other requirements.


EnCana Corporation Canadian Investment Plan

Effective September 1, 2002

   7

 

 

Article VIII Termination of Participation

 

8.1 Retirement

A Participant who is retired pursuant to the provisions of the Retirement Plan shall cease to be an Employee under the terms herein and shall effect a total withdrawal, in such form as he may elect, in accordance with Articles 7.1 and 7.2.

 

8.2 Death

In the event of the death of a Participant, there shall be paid to his named beneficiary an amount as if a total withdrawal had been affected under Articles 7.1 and 7.2. If no beneficiary has been designated by the Participant, such payment shall be made to his estate. No payment shall be authorized in the case of the death of a Participant until the appropriate documentation authorizing such distribution has been received by the Trustee and is in compliance with applicable laws and/or restrictions.

 

8.3 Termination of Employment

A Participant who ceases to be an Employee for any reason other than death, disability or retirement shall effect a total withdrawal in such form as he may elect in accordance with Article 7.1 and 7.2.

 

8.4 Failure to Withdraw Funds

Where a Participant who ceases to be an Employee fails to take such steps as necessary to withdraw his funds from his Participant Account, the Trustee shall, after a reasonable period, not less than ninety (90) days from the cessation of Participant’s employment, close the Participant’s Account and disperse all remaining funds to the Participant. Remaining registered funds will be transferred by the Trustee into another registered retirement savings account.

Article lX Administration of the Plan

 

9.1 Plan Administration

The Company shall be responsible for the general administration and operation of the Plan and may, in its discretion, appoint an authorized delegate or delegates who shall be responsible for day-to-day administration thereof.

 

9.2 Plan Interpretation

The Company, or any authorized delegate(s) appointed pursuant to Article 9.1 (as applicable), shall have the power to take all action and to make all decisions and interpretations which may be necessary or appropriate to administer and operate the Plan including, without limitation, in respect of eligibility, periods of contributory participation, prescription of Company required forms and enforcement of such rules and regulations as it may deem necessary, and shall be entitled to waive any period of ineligibility in respect of any Participant.


EnCana Corporation Canadian Investment Plan

Effective September 1, 2002

   8

 

 

9.3 Plan Assets

All assets of and contributions to the Plan shall be held in the Fund and administered by the Trustee in accordance with the terms of the Trust Agreement. The Trustee shall not make any payment from the Plan in respect of any Participant’s Account except in accordance with the terms hereof and the Trust Agreement, as applicable, as may be interpreted from time to time by the Company, acting reasonably.

 

9.4 Payment of Costs

Expenses pertaining to the normal administration of the Plan including administration fees for the Trustee shall be paid by the Company. Investment management fees and transaction fees charged by the Trustee as specified in the Trust Agreement shall be paid by the Employee and charged by the Trustee against each Participant Account or transaction proceeds.

 

9.5 Deductions from Payments

All amounts paid or payable under the Plan shall be subject to deductions required by law including, without limitation, tax withholdings.

 

9.6 Primacy of Legislation

The Company shall administer the Plan in such a manner that, in the event there is a conflict between the Plan and any applicable legislation, the applicable legislation shall govern.

Article X Amendment or Termination of the Plan

 

10.1 Amendment and Termination Power

The Company expressly reserves the full power, authority and right to amend, suspend or discontinue the Plan, in whole or in part, at any time.

 

10.2 Entitlement on Termination

In the event of termination of the Plan, each Participant shall be entitled to receive such distribution of his holdings in the Plan as he would have received had he made a total withdrawal of contributions pursuant to Article VII hereof as of the date of such termination.

Article XI General Conditions

 

11.1 Gender

Unless the context requires otherwise, reference in the Plan to male gender will include the female gender and words implying the singular number may be construed to extend to and include the plural number.


EnCana Corporation Canadian Investment Plan

Effective September 1, 2002

   9

 

 

11.2 Severability

Each provision of the Plan or part thereof is distinct and severable, and if any provision of the Plan or part thereof is determined to be void or unenforceable in whole or in part, such determination shall not affect the validity or enforcement of any other provision or part thereof.

 

11.3 Headings

Headings wherever used herein are for reference purposes only and do not limit or extend the meaning of any of the Plan’s provisions.

 

11.4 Governing Document

This document, as it may be amended from time to time, constitutes the Plan. No statement in any other document or communication, whether or not such document or communication is required by applicable law or Revenue Rules, shall create or confer any right or obligation other than as set out in this document or otherwise as required by applicable law or Revenue Rules, nor may any such document or communication be used or relied upon to interpret or vary any terms or provisions of the Plan.

 

11.5 Rights of Employees

The establishment and continuance of the Plan shall not constitute nor be deemed to constitute a contract of employment between the Company and any Employee and further, nor shall it be deemed to enhance or create any rights or obligations between the Company and any Employee or other person, their estate or personal representative beyond those described and provided herein.

 

11.6 No Personal Liability

Subject to applicable law, neither the Company, nor any authorized officer(s) or delegate(s) for the purposes of the Plan, nor any director, officer or other employee of the Company shall be liable to any person whatsoever for anything done or omitted to be done in respect of the administration or operation of the Plan, except where the act or omission was due to fraud, willful misconduct or gross negligence on the part of the person against whom a claim is made.

 

11.7 Jurisdiction

This Plan shall be governed by and interpreted in accordance with the laws of the Province of Alberta or the laws of Canada (as applicable). Any proceedings, interpretation or claims of any nature in any way pertaining to the Plan shall be determined by the courts of the Province of Alberta.

Exhibit 10.32

E NCANA (USA) R ETIREMENT P LAN

Amended and Restated Effective March 14, 2014


E NCANA (USA) R ETIREMENT P LAN

T ABLE OF C ONTENTS

 

INTRODUCTION

     1  

ARTICLE 1. DEFINITIONS

     2  

1.1

  Account      2  

1.2

  Administrator      2  

1.3

  Affiliated Group      2  

1.4

  Annual Additions      2  

1.5

  Annuity Starting Date      2  

1.6

  Application for Benefits      3  

1.7

  Automatic Participant      3  

1.8

  Beneficiary      3  

1.9

  Cash-Out Limit      3  

1.10

  Catch-Up Contributions      3  

1.11

  Code      3  

1.12

  Compensation      3  

1.13

  Date of Employment      3  

1.14

  Date of Reemployment      3  

1.15

  Death      3  

1.16

  Deferral Contributions      4  

1.17

  Deferral Account      4  

1.18

  Disability      4  

1.19

  Early Retirement Age      4  

1.20

  Effective Date      4  

1.21

  Elapsed Time Basis      4  

1.22

  Eligible Employee      5  

1.23

  Employee      5  

1.24

  Employee Stock Ownership Plan      5  

1.25

  Employer      5  

1.26

  Employer Contributions      6  
1.27   Employer Contribution Account      6  

1.28

  Employer Stock Dividends      6  

1.29

  Employer Stock      6  

1.30

  Employer Stock Fund      6  

1.31

  Encana Corporation      6  

1.32

  ERISA      6  

1.33

  ESOP Participant      6  

1.34

  Excess Deferrals      6  

1.35

  Five-Taxable-Year Period      6  

1.36

  Highly Compensated Participant      6  

1.37

  Investment Manager      7  

1.38

  Leave of Absence      7  

1.39

  Limitation Year      7  

 

 

Encana (USA) Retirement Plan      3/14/14    i   


1.40

  Maternity Leave or Paternity Leave      7  

1.41

  Non-Highly Compensated Participant      7  

1.42

  Normal Retirement Age      7  

1.43

  One-Year Period of Severance      7  

1.44

  Participant      8  

1.45

  Participating Employer      8  

1.46

  Plan      8  

1.47

  Plan Year      8  

1.48

  Pre-Tax Contributions      8  

1.49

  Qualified Distribution      8  

1.50

  Qualified Joint and Survivor Annuity      8  

1.51

  Qualified Matching Contribution Account      8  

1.52

  Qualified Matching Contributions or QMACs      8  

1.53

  Qualified Nonelective Contribution Account      9  

1.54

  Qualified Nonelective Contributions or QNECs      9  

1.55

  Qualified Optional Survivor Annuity      9  

1.56

  Qualified Preretirement Survivor Annuity      9  

1.57

  Regulation      9  

1.58

  Required Distribution Date      9  

1.59

  Rollover Account      9  

1.60

  Rollover Contributions      9  

1.61

  Roth Contributions      9  

1.62

  Safe Harbor Matching Contributions      10  

1.63

  Safe Harbor Matching Contribution Account      10  

1.64

  Safe Harbor Plan      10  

1.65

  Severance from Service Date      10  

1.66

  Sponsor      10  

1.67

  Spouse      10  

1.68

  Suspense Account      10  

1.69

  Testing Compensation      10  

1.70

  Transfer Account      12  

1.71

  Transferee Plan      12  

1.72

  Trust Agreement      12  

1.73

  Trust Fund      12  

1.74

  Trustee      12  

1.75

  Valuation Date      12  

1.76

  Year of Service      12  

ARTICLE 2. ELIGIBILITY AND PARTICIPATION

     13  

2.1

  Eligibility to Participate      13  

2.2

  Eligibility to Receive Safe Harbor Matching Contribution and Employer Contribution      13  

2.3

  Reinstatement of Participation      13  

2.4

  Termination of Participation      13  

 

 

Encana (USA) Retirement Plan      3/14/14    ii   


ARTICLE 3. CONTRIBUTIONS

     14  

3.1

  Deferral Contributions      14  

3.2

  Safe Harbor Matching Contributions      15  

3.3

  Employer Contributions      15  

3.4

  Supplemental Contributions      15  

3.5

  Qualified Nonelective Contributions      15  

3.6

  Rollover Contributions      16  

ARTICLE 4. SERVICE AND VESTING

     17  

4.1

  Service Counting Method      17  

4.2

  Service with Participating and Predecessor Employers      17  

4.3

  Vested Benefits      17  

4.4

  Forfeitures      18  

4.5

  Reinstatement of Vesting Service upon Reemployment      18  

4.6

  Restoration of Forfeited Amounts upon Reemployment      19  

ARTICLE 5. ACCOUNTS AND ESOP PROVISIONS

     20  

5.1

  Participant Accounts      20  

5.2

  Valuation and Adjustment of Accounts      20  

5.3

  Disposition of Forfeitures or Suspense Account      21  

5.4

  Directed Investments      21  

5.5

  Statements      22  

5.6

  Employer Stock Dividend Reinvestment Option      23  

5.7

  Voting or Tendering Employer Stock Fund      23  

ARTICLE 6. LIMITATIONS ON BENEFITS

     26  

6.1

  Definitions      26  

6.2

  Average Deferral Percentage Limitations      26  

6.3

  Average Contribution Percentage Limitations      30  

6.4

  Elective Deferral Limitation      32  

6.5

  Annual Additions Limitation      34  

ARTICLE 7. DISTRIBUTION OF PLAN BENEFITS

     35  

7.1

  Distribution Events      35  

7.2

  Amount of Distribution      35  

7.3

  Form of Distribution      35  

7.4

  Timing of Distribution      38  

7.5

  Notice      39  

7.6

  Required Minimum Distributions      39  

7.7

  Death Benefits      39  

7.8

  Determination of Beneficiary      41  

7.9

  Rollover of Plan Distributions      43  

7.10

  Qualified Domestic Relations Orders      44  

 

 

Encana (USA) Retirement Plan      3/14/14    iii   


ARTICLE 8. LOANS; HARDSHIP AND IN-SERVICE WITHDRAWALS

     46  

8.1

  Participant Loans      46  

8.2

  In-Service Withdrawals      46  

8.3

  Hardship Withdrawals      47  

ARTICLE 9. APPLICATION FOR BENEFITS

     49  

9.1

  Applying for Benefits      49  

9.2

  Denial of Benefits      49  

9.3

  Exhaustion of Remedies; Limitation of Actions      51  

ARTICLE 10. ADMINISTRATION OF THE PLAN

     52  

10.1

  Administrator      52  

10.2

  Organization and Procedures      52  

10.3

  Powers and Duties      52  

10.4

  Consultation with Agents      53  

10.5

  Finality of Action      54  

10.6

  Indemnification      54  

10.7

  Payment of Plan Expenses      54  

ARTICLE 11. THE TRUST FUND

     55  

11.1

  The Trustee      55  

11.2

  The Trust Fund      55  

11.3

  Reversion of Assets      55  

ARTICLE 12. PLAN FIDUCIARIES

     56  

12.1

  Fiduciaries      56  

12.2

  Fiduciary Responsibilities      56  

12.3

  Investment Managers      57  

ARTICLE 13. AMENDMENT, TERMINATION AND MERGER

     58  

13.1

  Plan Amendment      58  

13.2

  Vesting Amendments      58  

13.3

  Plan Termination      59  

13.4

  Plan Merger or Transfer of Assets      60  

ARTICLE 14. TOP HEAVY PROVISIONS

     61  

14.1

  Top-Heavy Definitions      61  

14.2

  Determination of Top-Heavy Status      61  

14.4

  Change in Vesting Schedule      62  

14.5

  Minimum Contribution      63  

ARTICLE 15. GENERAL PROVISIONS

     64  

15.1

  Interpretation      64  

15.2

  Liability for Participant Representations      64  

 

 

Encana (USA) Retirement Plan      3/14/14    iv   


15.3

  Governing Law      64  

15.4

  Participating Employers      64  

15.5

  Missing Participants and Beneficiaries      65  

15.6

  Incapacity of Participant or Beneficiary      65  

15.7

  Assignment and Alienation      66  

15.8

  Participant Rights      66  

15.9

  Effect on Employment Status      66  

15.10

  Qualified Military Service      67  

S CHEDULE A - P ARTICIPATING E MPLOYERS

     68  

S CHEDULE B - I MPUTED S ERVICE FOR P REDECESSOR AND R ELATED E MPLOYERS

     69  

S CHEDULE C - P ROTECTED B ENEFITS

     70  

 

 

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E NCANA (USA) R ETIREMENT P LAN

(A MENDED AND R ESTATED E FFECTIVE M ARCH 14, 2014)

INTRODUCTION

Alenco Inc. originally established the Encana (USA) Retirement Plan (the “Plan”) (formerly known as the Encana (USA) 401(k) Plan and the Encana International (USA) Inc. 401(k) Plan) effective September 1, 1999. The Plan was most recently amended and restated effective January 1, 2012. Encana Services Company Ltd. (the “Sponsor”) became the Plan sponsor effective January 1, 2014. The Plan is now amended, restated, and renamed the Encana (USA) Retirement Plan, effective March 14, 2014, in connection with the merger of the Encana (USA) Money Purchase Plan and an amendment to qualify a portion of the Plan as an employee stock ownership plan (“ESOP”) pursuant to Code Section 4975(e)(7), both effective March 14, 2014. This amendment and restatement supersedes all other restatements to the Plan. The ESOP component of the Plan is intended to invest primarily in employer securities, within the meaning of Code Section 409(l), and the ESOP and profit sharing components under the Plan are intended to constitute a single plan under Treasury Regulation 1.414(l)-1(b)(1).

The Plan is intended to qualify under Code Sections 401(a) and 501(a) and is created and maintained for the exclusive benefit of eligible employees and their beneficiaries to provide them with a means to accumulate retirement savings, to provide retirement funds, and to provide benefits in the event of an employee’s death or disability.

The Plan includes this document and Schedules A, B and C, as may be amended from time to time without the necessity of a formal Plan amendment.

 

 

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ARTICLE 1.

DEFINITIONS

When used in this Plan, the following capitalized terms have the meanings set forth below unless a different meaning is plainly required by the context:

 

1.1 Account means the individual account established in the name of each Participant reflecting the portion of the Employer’s and the Participant’s contributions, and the net earnings or losses thereon, and which will, to the extent applicable, consist of the accounts designated under Section 5.1 .

 

1.2 Administrator means the Sponsor or any committee or individual appointed by the Sponsor to administer the Plan as provided in Article 10 .

 

1.3 Affiliated Group means any group of corporations or other business organizations of which the Employer is a member, determined by using tests established under Code Sections 414(b), (c), (m) and (o), modified for purposes of Code Section 415 only by Code Section 415(h).

 

1.4 Annual Additions means, for each Limitation Year, the sum of—

 

  (a) the contributions by the Employer and other members of the Affiliated Group to this Plan or any other qualified defined contribution retirement plan that are allocated for the benefit of a Participant, including any forfeitures;

 

  (b) any Participant contributions to this Plan or to any other such plan (other than contributions made pursuant to Code Section 414(v)); and

 

  (c) for purposes of the dollar limitation on Annual Additions, any contributions by the Employer and other members of the Affiliated Group allocated to a medical expense reimbursement account that is established under Code Section 401(h) for a Participant under any pension or annuity plan, or, in the case of a key employee as defined in Code Section 416, any contribution by the Employer and other members of the Affiliated Group allocated on the Participant’s behalf to a separate account in a funded welfare benefit plan established for the purpose of providing post-retirement medical benefits.

Anything herein to the contrary notwithstanding, Annual Additions do not include any investment earnings allocable to a Participant, any Rollover Contributions or amounts transferred directly to a trustee from another qualified plan, contributions of amounts previously distributed to former employees who are reemployed, payments of principal and interest on Plan loans, dividends or gains on sale of Employer Stock held by the Employee Stock Ownership Plan.

 

1.5 Annuity Starting Date means the first day of the first period for which the Plan pays an amount as an annuity or in any other form.

 

 

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1.6 Application for Benefits means the administrative method and procedures established by the Administrator in order for a Participant to receive benefits hereunder, including any electronic methods prescribed by the Administrator.

 

1.7 Automatic Participant means an Employee who is automatically enrolled in the Plan and remains automatically enrolled, as provided in Section 3.1(b) .

 

1.8 Beneficiary means any individual, trust, estate, or other recipient properly designated by the Participant pursuant to the procedures required by the Administrator to receive Death benefits payable hereunder, on either a primary or contingent basis.

 

1.9 Cash-Out Limit means $1,000 calculated as of the time of distribution or any other time. The value of a Participant’s vested Account for purposes of applying the Cash-Out Limit will be determined by including the portion of the account balance that is attributable to Rollover Contributions (and earnings allocable thereto).

 

1.10 Catch-Up Contributions means contributions to the Plan that are intended to qualify as catch-up contributions pursuant to Code Section 414(v).

 

1.11 Code means the Internal Revenue Code of 1986, as now in effect and as may be amended from time to time.

 

1.12 Compensation means the amount paid or made available by the Employer to an Eligible Employee for that portion of a Plan Year during which the Eligible Employee is a Participant in the Plan that represents the Eligible Employee’s base pay, including amounts that are not included in the Participant’s gross income due to an election under Code Section 125, 132(f)(4), or 402(e)(3). Compensation will not exceed the limitation under Code Section 401(a)(17), which is $200,000, as adjusted by the Commissioner for increases in the cost of living in accordance with Code Section 401(a)(17). This limit does not apply with respect to Deferral Contributions. The cost of living adjustment in effect for a calendar year applies to any period, not exceeding 12 months, over which compensation is determined (determination period) beginning in such calendar year. If a determination period consists of fewer than 12 months, the Code Section 401(a)(17) limitation will be multiplied by a fraction, the numerator of which is the number of months in the determination period, and the denominator of which is 12.

 

1.13 Date of Employment means the date on which an Employee first begins service with the Employer.

 

1.14 Date of Reemployment means the date on which an Employee recommences service with the Employer.

 

1.15 Death means the Participant’s death for which a certificate or declaration of death is issued, and may include the Participant’s disappearance, as determined in the sole discretion of the Administrator.

 

 

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1.16 Deferral Contributions means the contributions to the Trust Fund made by the Employer on behalf of a Participant pursuant to the Participant’s deferral election under Section 3.1 , including all Pre-Tax Contributions and Roth Contributions, and including Catch-Up Contributions.

 

1.17 Deferral Account means the individual account established in the name of each Participant reflecting the Participant’s Deferral Contributions, and the net earnings and losses thereon.

 

1.18 Disability refers to a condition in which a Participant is determined to qualify for benefits under the long-term disability plan sponsored by the Employer under which the Participant is covered.

 

1.19 Early Retirement Age means age 55.

 

1.20 Effective Date means September 1, 1999. The Effective Date of this restatement is March 14, 2014. If an earlier effective date for a provision in this restated Plan applies, the provision will be effective as of the earlier effective date notwithstanding the general March 14, 2014 effective date.

 

1.21 Elapsed Time Basis means the method of crediting service based on Elapsed Time. Elapsed Time means an Employee’s service with the Employer beginning on the Employee’s Date of Employment or, if the Employee has experienced a One-Year Period of Severance, beginning on the Employee’s Date of Reemployment. In determining an Employee’s Elapsed Time, the following rules apply:

 

  (a) Elapsed Time continues until an Employee’s Severance from Service Date.

 

  (b) There is no Severance from Service Date if an Employee retires, resigns or is discharged, but then is reemployed by the Employer within 12 months.

 

  (c) There is no Severance from Service Date if an Employee who is on a Leave of Absence separates from service for a reason other than retirement, resignation, discharge or death and within 12 months of the date of the Leave of Absence, the Employee is then reemployed by the Employer.

 

  (d) Elapsed Time is measured in days and aggregated in full and fractional years, with 30 days equaling one month and 12 months equaling one year; provided, however, that a Participant will not receive multiple credit for Elapsed Time with respect to any single period.

 

  (e) If an Employee has a Severance from Service Date, then is reemployed by the Employer, a new period of Elapsed Time begins, which is aggregated with the Employee’s prior periods of Elapsed Time, except in the case of an Employee who incurs five consecutive One-Year Periods of Severance, in which case a new period of Elapsed Time begins which is not aggregated with the Employee’s prior periods of Elapsed Time.

 

 

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1.22 Eligible Employee means any Employee of the Employer, but does not include:

 

  (a) any Employee included in a unit of Employees covered by a collective bargaining agreement between the Employer and the Employee representative, the negotiation of which retirement benefits were the subject of good faith bargaining, unless the Employer and the Employee representative have agreed to allow such Employees to participate in the Plan pursuant to the terms of the collective bargaining agreement covering such Employees;

 

  (b) any Employee who is a nonresident alien who receives no earned income from the Employer that constitutes income from sources within the United States;

 

  (c) any Employee who is an expatriate covered by the Employer’s retirement plan in the Employee’s country of residence;

 

  (d) any Employee who is classified by the Employer as an intern; and

 

  (e) any Employee of an Employer with respect to any period prior to the date that the Employer has adopted this Plan with respect to its Employees.

 

1.23 Employee means any individual who is a common law employee of the Employer and is classified as an employee of the Employer on the basis of the Employer’s customary practices consistently applied. Notwithstanding anything herein to the contrary, the term Employee does not include any individual who is classified as an agent, consultant, independent contractor or self-employed individual who has entered into an agency, consulting, independent contractor or other similar arrangement with the Employer, including a leased employee, regardless of whether such person is later determined by a court or governmental agency to have an employee relationship with the Employer.

 

1.24 Employee Stock Ownership Plan or ESOP component means the Employer Stock Fund. The portion of the Plan assets consisting of the Employer Stock Fund will be a stock bonus plan under Code Section 401(a), that is intended to qualify as an employee stock ownership plan under Code Section 4975(e)(7). The ESOP component is maintained as a portion of the Plan as authorized by Regulations Section 54.4975-11(a)(5). The remaining part of the Plan is intended to be a profit sharing plan that meets the requirements for qualification under Code Section 401(a) and 401(k). Together the ESOP component and the profit sharing component constitute the entire Plan and are intended to be a single plan under Regulations Section 1.414(l)-1(b)(1).

 

1.25 Employer means the Sponsor and any member of the Affiliated Group that adopts this Plan on behalf of its Eligible Employees with the consent of the Sponsor or the Administrator as a Participating Employer.

 

 

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1.26 Employer Contributions means contributions to the Trust Fund made by the Employer under Section 3.3 on behalf of a Participant.

 

1.27 Employer Contribution Account means the individual account established in the name of each Participant reflecting the Participant’s Employer Contributions, and the net earnings or losses thereon.

 

1.28 Employer Stock Dividends means the dividends paid on the common shares of Encana Corporation.

 

1.29 Employer Stock means the common shares of Encana Corporation, which is a “qualifying employer security” of the Employer within the meaning of Section 409(p).

 

1.30 Employer Stock Fund means the investment fund designated for investment in Employer Stock.

 

1.31 Encana Corporation means Encana Corporation and any successor thereto.

 

1.32 ERISA means the Employee Retirement Income Security Act of 1974, as now in effect and as thereafter amended from time to time, and any regulations issued thereunder.

 

1.33 ESOP Participant means any Participant who has any portion of his or her Account invested in the Employer Stock Fund.

 

1.34 Excess Deferrals means, for any Plan Year, Deferral Contributions (excluding Catch-Up Contributions) in excess of the limitation on elective deferrals under Code Section 402(g), as may be adjusted pursuant to Code Section 402(g)(4), or Deferral Contributions (excluding Catch-Up Contributions) designated by the Participant as being in excess of the limitation.

 

1.35 Five-Taxable-Year Period means the period beginning on the first day of the first taxable year in which the Participant makes a Roth Contribution to his or her Roth Contribution subaccount under this Plan or, if a Rollover Contribution was made to the Participant’s Roth Contribution subaccount in this Plan from Roth contributions from another qualified plan not sponsored by the Sponsor, the first day of the first taxable year for which the Participant made a Roth contribution to such other qualified plan.

 

1.36 Highly Compensated Participant means any Eligible Employee who performed services for the Employer during the determination year and who:

 

  (a) was a 5% owner (as defined in Code Section 416(i)(1)) of the Employer at any time during the determination year or lookback year, or

 

  (b)

received determination year Testing Compensation (disregarding the Code Section 401(a)(17) limitation) from the Employer in excess of the dollar limit

 

 

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  set forth in Code Section 414(q)(1)(B), as adjusted by the IRS for cost-of-living, and was in the top paid-20% group of Employees for the Plan Year.

For this purpose, “determination year” means the Plan Year for which the determination of whom is a Highly Compensated Participant is being made. “Lookback year” means the 12-month period immediately preceding the determination year. The determination of the Employees who qualify as Highly Compensated Participant under this Plan will be made in accordance with the provisions of Code Section 414(q) and related Regulations.

 

1.37 Investment Manager means the individual or entity, if any, appointed by the Administrator to manage any portion or all of the assets of the Trust Fund.

 

1.38 Leave of Absence means any absence of not over 12 months approved by the Employer in accordance with reasonable nondiscriminatory standards and policies consistently applied by the Employer, including any absence from work for service in the U.S. armed forces (other than career military service). Any Leave of Absence must be given in advance and may be canceled at any time in the discretion of the Employer to the extent permitted by applicable law.

 

1.39 Limitation Year means the Plan Year. If the Plan is terminated effective as of a date other than the last day of the Plan’s Limitation Year, the Plan will be treated as if the Plan was amended to change its Limitation Year to end on the effective date of the Plan termination. As a result of this deemed amendment, the Code Section 415(c)(1)(A) dollar limit will be prorated under the short limitation year rules.

 

1.40 Maternity Leave or Paternity Leave means any absence from work because of (i) the pregnancy of the Employee, (ii) the birth of a child of the Employee, (iii) the placement of a child with the Employee in connection with the adoption of such child by the Employee, or (iv) the need to care for such child for a period beginning immediately following such birth or placement. The Employee may be required to furnish information necessary to establish that the absence was for one of the reasons specified in this section and the number of days for which there was such an absence.

 

1.41 Non-Highly Compensated Participant means any individual who at any time during the applicable Plan Year is a Participant in this Plan and who is not a Highly Compensated Participant.

 

1.42 Normal Retirement Age means age 65.

 

1.43 One-Year Period of Severance means a 12-consecutive-month period beginning on a Participant’s Severance from Service Date or any anniversary of that date during which the Participant does not perform services for the Employer. Solely for purposes of determining whether, for vesting purposes, a Participant has incurred a One-Year Period of Severance, if an Employee experiences a Severance from Service Date for Maternity Leave or Paternity Leave, then “first anniversary of his

 

 

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Severance from Service Date” will be substituted for “Severance from Service Date” in the preceding sentence.

 

1.44 Participant means an Eligible Employee who has entered the Plan in accordance with the provisions of Article 2 . An Employee who becomes a Participant will remain a Participant under the Plan until the Trustee has fully distributed the Participant’s Account.

 

1.45 Participating Employer means each entity that adopts the Plan in accordance with Section 15.4 and is listed as a Participating Employer, and not an excluded entity, in Schedule A as updated from time to time.

 

1.46 Plan means the Encana (USA) Retirement Plan, including any subsequent amendments hereto.

 

1.47 Plan Year means the 12-month period ending on December 31st.

 

1.48 Pre-Tax Contributions means contributions that are intended to qualify as pre-tax contributions pursuant to Code
Section 401(k).

 

1.49 Qualified Distribution means a distribution from a Participant’s Roth Contributions subaccount that (a) is made on or after the date a Participant attains age 59  1 2 , on or after the Participant’s death, or on account of the Participant’s disability (as that term is defined in Code Section 72(m)); and (b) is made after the Five-Taxable-Year Period.

 

1.50 Qualified Joint and Survivor Annuity means—

 

  (a) in the case of a Participant who is married as of the Annuity Starting Date, an immediate annuity that is purchasable with the applicable portion of the Participant’s nonforfeitable Account, if any, and provides a life annuity for the Participant and a survivor annuity payable for the remaining life of the Participant’s Spouse equal to 50% of the amount of the annuity payable during the life of the Participant; or

 

  (b) in the case of a Participant who is not married as of the Annuity Starting Date, an immediate life annuity for the Participant that is purchasable with the applicable portion of the Participant’s nonforfeitable Account, if any.

 

1.51 Qualified Matching Contribution Account means the individual account established in the name of each Participant reflecting his Qualified Matching Contributions, and the net earnings or losses thereon.

 

1.52 Qualified Matching Contributions or QMACs means the contributions to the Trust Fund that may be made made by the Employer on behalf of a Non-Highly Compensated Participant for the purpose of satisfying nondiscrimination requirements in any Plan Year in which the Plan is not a Safe Harbor Plan, and

 

 

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which satisfy the applicable nonforfeitability requirements and distribution restrictions of Code Section 401(k).

 

1.53 Qualified Nonelective Contribution Account means the individual account established in the name of each Participant reflecting the Participant’s Qualified Nonelective Contributions, and the net earnings or losses thereon.

 

1.54 Qualified Nonelective Contributions or QNECs means the contributions (other than qualifying matching contributions) to the Trust Fund that may be made by the Employer on behalf of a Non-Highly Compensated Participant for the purpose of satisfying nondiscrimination requirements in any Plan Year in which the Plan is not a Safe Harbor Plan, or for correction purposes, and which satisfy the applicable nonforfeitability requirements and distribution restrictions of Code Section 401(k).

 

1.55 Qualified Optional Survivor Annuity means an annuity that is the actuarial equivalent of a Qualified Joint and Survivor Annuity for a married Participant, which provides a life annuity for the Participant and a survivor annuity payable for the remaining life of the Participant’s Spouse equal to 75% of the amount of the annuity payable during the life of the Participant.

 

1.56 Qualified Preretirement Survivor Annuity means a survivor annuity for the life of the Spouse of a Participant that is purchasable with 50% of the Participant’s nonforfeitable Transfer Account (determined as of the date of the Participant’s death), if any.

 

1.57 Regulation means any rule or regulation promulgated under Code Section 7805 by the Secretary of the Department of the Treasury, or the Secretary’s delegate.

 

1.58 Required Distribution Date means the April 1st of the calendar year following—

 

  (a) in the case of a Participant who is a 5% owner (within the meaning of Code Section 416(i)), the calendar year in which a Participant attains age 70  1 2 , and

 

  (b) in the case of a Participant who is not a 5% owner, the later of the calendar year in which occurs the Participant’s severance from employment with the Employer or the calendar year in which the Participant attains age 70  1 2 .

 

1.59 Rollover Account means the individual account established in the name of each Eligible Employee, if applicable, reflecting the Participant’s Rollover Contributions, and the net earnings or losses thereon, including any subaccounts necessary in order to reflect different types of pre-tax and after-tax Rollover Contributions and other types of rollovers.

 

1.60 Rollover Contributions means the contributions to the Trust Fund made by an Eligible Employee pursuant to Section 3.6 .

 

1.61 Roth Contributions means contributions that are intended to qualify as after-tax contributions pursuant to Code Section 402A.

 

 

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1.62 Safe Harbor Matching Contributions means contributions to the Trust Fund made by the Employer under Section 3.2 on behalf of a Participant that are intended to satisfy the matching requirements for the plan to be a Safe Harbor Plan.

 

1.63 Safe Harbor Matching Contribution Account means the individual account established in the name of each Participant reflecting the Participant’s Safe Harbor Matching Contributions, and the net earnings or losses thereon.

 

1.64 Safe Harbor Plan means a qualified plan that, with respect to nondiscrimination testing, meets the requirements set forth in Code Section 401(k)(12) and underlying Regulations and the requirements set forth in Code Section 401(m)(11) and underlying Regulations for safe harbor 401(k) plans.

 

1.65 Severance from Service Date occurs on the earlier of—

 

  (a) a termination of employment or service on account of retirement, resignation, discharge or Death, or

 

  (b) the first anniversary of the date the Participant terminated employment or service on account of any reason other than the reasons set forth above, such as vacation, holiday, sickness, Disability, Leave of Absence or layoff.

 

1.66 Sponsor means Encana Services Company Ltd., and any successor thereto.

 

1.67 Spouse means an individual who qualifies as a Participant’s spouse under federal tax law, including a common law spouse where applicable.

 

1.68 Suspense Account means the account established to reflect any amounts allocated or accrued on behalf of a Participant in excess of the limitations under Code Section 415 or other unallocated amounts under the Plan that are not forfeitures.

 

1.69 Testing Compensation means the Employee’s wages within the meaning of Code Section 3401(a) (for purposes of income tax withholding at the source), plus amounts that would be included in wages but for an election under Code Section 125(a), 132(f)(4), 402(e)(3), 402(h)(1)(B), 402(k) or 457(b), plus all other payments of compensation to an Employee by the Employer (in the course of the Employer’s trade or business) for which the Employer is required to furnish the Employee with a Form W-2 under Code Sections 6041(d), 6051(a)(3) and 6052. Testing Compensation must be determined without regard to any rules under Code Section 3401(a) that limit the remuneration included in wages based on the nature or location of the employment or the services performed (such as the exception for agricultural labor in Code Section 3401(a)(2)). Except as provided below in this Section 1.69 , such amounts must be actually paid or made available to the Employee during the Limitation Year (or, if earlier, includible in the gross income of the Employee within the Limitation Year) and prior to the Employee’s severance from employment with the Employer.

 

 

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Testing Compensation is also subject to the following:

 

  (a) Other Included Compensation . Testing Compensation includes:

 

  (1) Amounts earned during a Plan Year but paid during the first few weeks of the following Plan Year because of the timing of pay periods and pay dates, provided that such amounts are included on a uniform and consistent basis in the Testing Compensation of all similarly situated Participants for the Plan Year in which such amounts were earned and no compensation is included in more than one Limitation Year;

 

  (2) Back pay within the meaning of Regulation Section 1.415(c)-2(g)(8), for the Plan Year to which the back pay relates, to the extent the back pay represents wages and compensation that would otherwise be included in Testing Compensation; and

 

  (3) Amounts that would have been included in Testing Compensation if the amounts had been paid prior to the Employee’s severance from employment date, provided the amounts are paid by 2  1 2 months after a severance from employment, and the amounts are:

 

  (A) Regular compensation for services performed during regular working hours, or compensation for services performed outside the regular working hours (such as overtime or shift differential), commissions, bonuses, or other similar payments;

 

  (B) Payments for accrued bona fide sick, vacation, or other leave, but only if the Employee would have been able to use the leave had employment continued; and

 

  (C) Differential wage payments, which are payments made by the Employer to an individual with respect to any period during which the individual is performing qualified military service within the meaning of Code Section 414(u) for a period of more than 30 days, and which represent all or a portion of the wages that the individual would have received from the Employer if the individual had been performing services for the Employer.

 

  (b)

Compensation Limit . Testing Compensation will not exceed the limitation under Code Section 401(a)(17), which is $200,000, as adjusted by the Commissioner for increases in the cost of living in accordance with Code Section 401(a)(17). The cost of living adjustment in effect for a calendar year applies to any period, not exceeding 12 months, over which compensation is determined (determination period) beginning in such calendar year. If a determination period consists of fewer than 12 months, the Code Section 401(a)(17) limitation will be multiplied by a fraction, the

 

 

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  numerator of which is the number of months in the determination period, and the denominator of which is 12.

 

  (c) Definition for Nondiscrimination Testing . Notwithstanding the foregoing, for purposes of applying the nondiscrimination tests of Section 6.2 and 6.3 , and any other applicable nondiscrimination testing, Testing Compensation means any definition of compensation that satisfies the requirements for a nondiscriminatory definition under Code Section 414(s), as determined by the Administrator.

 

1.70 Transfer Account means a separate account maintained for a Participant consisting of all contributions allocated to the Participant under the Transferee Plan, and the income, expenses, gains, and losses allocated thereto, in accordance with the Transferee Plan, and transferred to the Plan to effect the merger of the Transferee Plan into the Plan, effective as of the Effective Date.

 

1.71 Transferee Plan means the Encana (USA) Money Purchase Plan.

 

1.72 Trust Agreement means the agreement with the Trustee providing for the Trust Fund in which Plan contributions are held by the Trustee.

 

1.73 Trust Fund means the assets of the Plan held under the Trust Agreement.

 

1.74 Trustee means the trustee or trustees by whom the Accounts and assets of the Plan are held pursuant to the Trust Agreement as provided in Article 11 .

 

1.75 Valuation Date means the date as of which the Trust Fund is valued and the Account maintained on behalf of each Participant or Beneficiary is adjusted as provided hereunder. The Trust Fund will be valued on each trading date with respect to investment assets or funds whose value is determined on any day that the financial markets are open. For all other assets, the Trust Fund will be valued as of the last day of the Plan Year and on such additional dates as the Administrator deems appropriate.

 

1.76 Year of Service means 12 months of service with the Employer, or with a predecessor employer as provided in Section 4.2(b) , calculated in accordance with the Elapsed Time Basis. Only for purposes of determining the vested benefit under Section 4.3 , a Year of Service also includes service with any employer who is a member of the Affiliated Group, but only for service performed during the time that the employer was a member of the Affiliated Group, calculated in accordance with the Elapsed Time Basis.

*  *  *  *   End of Article 1    *  *  *  *

 

 

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ARTICLE 2.

ELIGIBILITY AND PARTICIPATION

 

2.1 E LIGIBILITY TO P ARTICIPATE . Each Eligible Employee is eligible to become a Participant as of such Employee’s Date of Employment or Date of Reemployment, as applicable. Any Eligible Employee who (1) becomes a Participant on or after April 1, 2014, and (2) does not elect to make or elect to decline to make a Deferral Contribution as provided under Section 3.1 will become an Automatic Participant as provided under Section 3.1(b) , effective as soon as administratively practicable after his or her eligibility date. Each Automatic Participant will receive a notification prior to his or her automatic participation. Such notification will indicate that the Automatic Participant may cancel his or her automatic participation effective immediately or effective as of any future payroll period upon giving proper notice in accordance with administrative rules and procedures established by the Administrator. An Automatic Participant who elects a different Deferral Contribution, including zero percent (0%), will no longer be considered an Automatic Participant and will no longer be subject to the automatic enrollment provisions.

 

2.2 E LIGIBILITY TO R ECEIVE S AFE H ARBOR M ATCHING C ONTRIBUTION AND E MPLOYER C ONTRIBUTION . Each Participant who is an Eligible Employee during such Plan Year is eligible to share in the allocation of Safe Harbor Matching Contributions and Employer Contributions.

 

2.3 R EINSTATEMENT OF P ARTICIPATION .

 

  (a) Reemployment of Eligible Employee. In the event a Participant who ceases to be an Eligible Employee again becomes an Eligible Employee, such Employee will be eligible to make Deferral Contributions and share in the allocation of Safe Harbor Matching Contributions and Employer Contributions as soon as administratively feasible after the Participant again becomes an Eligible Employee and completes the enrollment process.

 

  (b) Reclassification as an Eligible Employee. In the event an Employee who is not an Eligible Employee becomes an Eligible Employee, such Employee will be eligible to make Deferral Contributions and share in the allocation of Safe Harbor Matching Contributions and Employer Contributions as soon as administratively feasible after the Employee first becomes an Eligible Employee, provided such Employee completes the enrollment process.

2.4 T ERMINATION OF P ARTICIPATION . A Participant ceases to be a Participant as of the date the Participant has received a complete distribution of the Participant’s Account; provided, however, that for purposes of an individual’s eligibility to make and share in the allocation of contributions under the Plan, the other relevant Plan provisions apply and the individual’s designation as a Participant for purposes of this Section 2.4 has no bearing.

*  *  *  *   End of Article 2    *  *  *  *

 

 

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ARTICLE 3.

CONTRIBUTIONS

 

3.1 D EFERRAL C ONTRIBUTIONS . Each Participant may elect to have the Employer deduct, in whole or partial percentages (carried to the 1/10th), from 1% up to 30% (plus Catch-Up Contributions) of the Participant’s Compensation (without regard to Code Section 401(a)(17)) or a flat dollar amount (not to exceed 30% of the Participant’s Compensation), that would otherwise be payable to him or her in cash for the Plan Year, limited to the amount available after any other applicable withholdings, and to have such amount contributed on the Participant’s behalf to the Plan as a Deferral Contribution. Effective January 1, 2015, the maximum deferral amount under the Plan is 75% of the Participant’s Compensation. The deferral amount cannot exceed the dollar limitation outlined in Section 6.4(a) . The Participant must specify whether the Deferral Contributions made pursuant to this Section 3.1 are Pre-Tax Contributions, Roth Contributions, or a combination of both and, once made, the participant may change his or her designation on a prospective basis. If the Participant fails to so designate, the Plan will treat all Deferral Contributions as Pre-Tax Contributions. Deferral Contributions are subject to the following:

 

  (a) Method of Election. A Participant may elect to make, modify, or discontinue the Participant’s Deferral Contributions by filing notice with the Administrator, or its representative, in accordance with procedures established by the Administrator; provided, however, in no event may a Participant’s deferral election apply to Compensation that is currently available to the Participant. A Participant’s election to make, modify or discontinue the Participant’s Deferral Contribution election will be effective as soon as administratively feasible following receipt of the Participant’s request to make, modify or discontinue such contributions by the Administrator or its representative. Anything herein to the contrary notwithstanding, if the Administrator determines that a Participant’s Deferral Contributions will exceed any limitations of this Plan that apply to such contributions, the Administrator may at any time amend the Participant’s Deferral Contribution election to the extent necessary to adhere to such limitations. Participants will be notified of any changes to deferral elections that are made by the Administrator.

 

  (b) Automatic Enrollment. An Automatic Participant will have Deferral Contributions automatically reduce his or her Compensation by 5% each payroll period. Alternatively, such Automatic Participant may elect a different percentage Deferral Contribution. The automatic Deferral Contributions will be Pre-Tax Contributions unless the Automatic Participant specifies otherwise.

 

  (c) Catch-Up Contributions. All employees who are eligible to make Deferral Contributions and who have attained or will attain age 50 before the close of the Plan Year are eligible to make Catch-Up Contributions for the Plan Year

 

 

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  in accordance with, and subject to the limitations of, Code Section 414(v). Notwithstanding anything to the contrary in the Plan, Catch-Up Contributions will not be taken into account for purposes of the provisions of the Plan implementing the required limitations of Code Sections 402(g) and 415. The Plan will not be treated as failing to satisfy the provisions of the Plan implementing the requirements of Code Section 401(k)(3), 401(k)(11), 401(k)(12), 410(b), or 416, as applicable, by reason of the making of Catch-Up Contributions. The Participant will designate whether the Catch-Up Contributions will be treated as Pre-Tax Contributions or Roth Contributions. If a Participant fails to so designate, the Plan will treat such contribution as Pre-Tax Contributions.

 

3.2 S AFE H ARBOR M ATCHING C ONTRIBUTIONS .

 

  (a) Safe Harbor Matching Contribution. The Employer will make a Safe Harbor Matching Contribution on behalf of each Participant at the rate of 100% of the amount of a Participant’s Deferral Contributions that do not exceed 5% of the Participant’s Compensation per payroll period. The Employer may make a discretionary additional Safe Harbor Matching Contribution, provided that the total amount of Safe Harbor Matching Contributions will not exceed 6% of the Participant’s Compensation per payroll period.

 

  (b) Safe Harbor Election. The Employer elects that the Plan qualify as a Safe Harbor Plan.

 

3.3 E MPLOYER C ONTRIBUTIONS . The Employer will make an Employer Contribution on behalf of each Participant who is an Eligible Employee equal to 8% of the Participant’s Compensation for each payroll period.

 

3.4 S UPPLEMENTAL C ONTRIBUTIONS . The Employer may make such contributions as are necessary to restore the amounts previously forfeited by Participants for whom such restoration is required pursuant to Section 4.6 .

 

3.5 Q UALIFIED N ONELECTIVE C ONTRIBUTIONS . The Employer may, for any Plan Year, make QNECs on behalf of Participants in such amount when necessary. The following rules apply to QNECs:

 

  (a) Distribution of QNECs. QNECs are 100% vested and nonforfeitable when contributed to the Plan and are subject to the same “Distribution Restrictions” imposed on Deferral Contributions. Distribution Restrictions means that the Participant may not receive a distribution of the specified contributions (nor earnings on those contributions) except in the event of: the Participant’s death, disability, termination of employment, or attainment of age 59  1 2 , financial hardship satisfying the requirements of Code Section 401(k) and applicable Regulations, and a Plan termination without establishment of a successor defined contribution plan (other than an ESOP).

 

 

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  (b) Allocation and Deposit of QNECs. QNECs for any Plan Year must be allocated to Participants’ Qualified Nonelective Contribution Accounts as of a date no later than the last day of such Plan Year, and must be actually paid to the Plan within the 12-month period following the last day of such Plan Year.

 

  (c) Allocation Method. To the extent permitted by law, the Employer may designate which Participants are to receive allocations of QNECs, and the method by which they are intended to be allocated to Participants.

 

3.6 R OLLOVER C ONTRIBUTIONS . Under such rules and procedures as the Administrator may establish, any Eligible Employee may contribute all or a portion of the distribution received from another qualified plan or individual retirement account or annuity if the amount contributed satisfies the requirements for an “eligible rollover distribution” pursuant to Code Section 402(c) or 408(d)(3). Rollover Contributions may include pre-tax and/or after-tax contributions; however, rollover contributions will not be accepted from amounts that reflect SIMPLE IRA contributions under Code Section 408(p), SEP IRA contributions under Code Section 408(k), Roth IRA contributions under Code Section 408A, or designated Roth accounts from a plan qualified under Code Section 403(b) or 457(b).

Prior to accepting a Rollover Contribution from a designated Roth account from another plan qualified under Code Section 401(a), the Administrator will require the transferring plan to provide a statement indicating the first year of the Five-Taxable-Year Period and the portion of the distribution that is attributable to investment in the contract under Code Section 72, or alternatively, that the distribution is a Qualified Distribution.

All such Rollover Contributions must be received by the Trustee on or before the 60th day after the day on which the Participant receives or is deemed to receive the distribution unless such rollover is a direct transfer of an eligible rollover distribution within the meaning of Code Section 401(a)(31). The Administrator may require such information as it may deem necessary to determine whether a distribution to a Participant satisfies the requirements of this Section 3.6 .

*  *  *  *   End of Article 3    *  *  *  *

 

 

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ARTICLE 4.

SERVICE AND VESTING

 

4.1 S ERVICE C OUNTING M ETHOD . For all service counting purposes under the Plan, all Eligible Employees will be credited with service pursuant to the Elapsed Time Basis.

 

4.2 S ERVICE WITH P ARTICIPATING AND P REDECESSOR E MPLOYERS .

 

  (a) Participating Employers. In the event an Employee is transferred between the Participating Employers listed on Schedule A , the Employee will retain his or her accumulated service and eligibility. No such transfer will result in a Severance from Service Date under the Plan, and the Participating Employer to which the Employee is transferred will become obligated with respect to such Employee in the same manner as was the Participating Employer from whom the Employee was transferred.

 

  (b) Predecessor Employers. Service with a predecessor employer listed in Schedule B , completed as of the dates specified in Schedule B , will be taken into account for all service counting purposes under the Plan. In the event the Employer merges with or acquires a company, the Employer will determine in a nondiscriminatory manner whether the service earned by the employees of the other company who will work for the Employer or a Participating Employer will be treated as service with the Employer or the Participating Employer, as applicable, for purposes of service counting under the Plan.

 

4.3 V ESTED B ENEFITS . A Participant’s Account will be nonforfeitable to the extent the Account is vested, determined as follows:

 

  (a) Fully Vested Accounts. Except as otherwise provided under Section 4.3(b) , a Participant will be 100% vested at all times in the value of his or her Accounts, which value will be determined as of the most recent Valuation Date.

 

  (b) Employer Contribution Accounts. Except as otherwise provided in Schedule C to the Plan, a Participant’s vested percentage in his or her Employer Contribution Account and the portion of a Participant’s Account merged into the Plan on the Effective Date, from the Transferee Plan which represents the employer contribution account under such plan will be determined under the following vesting schedule:

 

     Vested  

Years of Service

   Percentage  

Fewer than 3 Years of Service

     0

At least 3 Years of Service

     100

 

 

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  (c) Events Fully Vesting Participant Accounts. Notwithstanding the foregoing, a Participant’s vested percentage in his or her Employer Contribution Account and any other Accounts will be 100% upon occurrence of the following events:

 

  (1) the Participant incurring a Disability prior to the Participant’s termination of employment from the Employer, such full vesting to apply only with respect to contributions through the date of the event, and not with respect to future contributions;

 

  (2) the Participant’s termination of employment due to Death;

 

  (3) the termination of the Plan or, with respect to the affected Employees, the partial termination or complete discontinuation of contributions by the Employer, such full vesting to apply only with respect to contributions through the date of the event, and not with respect to future contributions;

 

  (4) the Participant’s Death while performing qualified military service within the meaning of Code Section 414(u); or

 

  (5) the Participant reaching Early Retirement Age or Normal Retirement Age prior to the Participant’s termination of employment from the Employer.

 

4.4 F ORFEITURES . A Participant who terminates employment for reasons other than Death or Disability and who is not 100% vested in his or her Account will forfeit an amount equal to the unvested portion of the Participant’s Employer Contribution Account or other Account not 100% vested upon the earlier of five consecutive One-Year Periods of Severance or a complete distribution of the Participant’s vested Account. A Participant who terminates employment for reasons other than Death or Disability and who is not vested in any portion of his or her Account will be deemed to have received a distribution hereunder. Forfeited amounts may be restored upon reemployment pursuant to Section 4.6 .

 

4.5 R EINSTATEMENT OF V ESTING SERVICE U PON R EEMPLOYMENT .

 

  (a) If a Participant has one or more One-Year Periods of Severance but fewer than five One-Year Periods of Severance (whether before or after becoming eligible to participate in the Plan) at the Participant’s Date of Reemployment, the Participant will receive credit for vesting purposes for all Years of Service completed prior to and after the Participant’s One-Year Periods of Severance with respect to the Participant’s entire Account.

 

  (b) If a Participant incurs five consecutive One-Year Periods of Severance at the Participant’s Date of Reemployment, future service after the Date of Reemployment will not be credited for vesting service purposes on the Participant’s Account accrued prior to the five consecutive One-Year Periods

 

 

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  of Severance. Such future service will be credited for vesting purposes only to amounts accrued after the Date of Reemployment.

 

4.6 R ESTORATION OF F ORFEITED A MOUNTS U PON R EEMPLOYMENT . If a Participant who has received a lump sum distribution on account of terminating employment again becomes an Employee prior to the occurrence of five consecutive One-Year Periods of Severance, the Participant will be given the opportunity (to be exercised within five years after the date the individual again becomes an Employee) to re-contribute the full amount of the prior distribution from the Plan and have restored any amounts forfeited pursuant to Section 4.4 , without interest. If such individual fails to contribute the full amount of the distribution, any previously forfeited amounts will not be restored. If the Participant was deemed to have received a lump sum distribution, and again becomes an Employee prior to the occurrence of five consecutive One-Year Periods of Severance, the previously forfeited amounts will be restored automatically, without interest. Any restoration will be made back to the same accounts from which the amounts were forfeited.

*  *  *  *   End of Article 4    *  *  *  *

 

 

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ARTICLE 5.

ACCOUNTS AND ESOP PROVISIONS

 

5.1 P ARTICIPANT A CCOUNTS . A Participant’s Account may consist of the following accounts reflecting the portion of the Employer’s and the Participant’s contributions, and the net earnings or losses thereon:

 

  (a) A Deferral Account.

 

  (b) A Safe Harbor Matching Contribution Account.

 

  (c) A Non-Safe Harbor Matching Contribution Account.

 

  (d) An Employer Contribution Account.

 

  (e) A Qualified Nonelective Contribution Account. (f) A Rollover Account.

 

  (g) A Transfer Account.

 

  (h) Any other account established pursuant to Schedule C .

Multiple subaccounts of any type may be established if required by the Plan or if considered advisable by the Administrator. A reference herein to any type of account includes all of the Participant’s subaccounts of that type. Except as expressly provided herein to the contrary, the Trust Fund will be held and invested on a commingled basis; accounts and subaccounts will be for bookkeeping purposes only; and, except as may be provided with respect to Trust Fund assets that are invested in segregated funds at the direction of Participants, the establishment of Accounts will not require any segregation of the assets of the Trust Fund.

 

5.2 V ALUATION AND A DJUSTMENT OF A CCOUNTS . As of each Valuation Date, the Trustee will determine the total net worth of the Trust Fund. The valuation of the Trust Fund will be at its fair market value as of the Valuation Date. Except as otherwise may be provided with respect to Trust Fund assets that are invested in segregated funds at the direction of Participants, the Administrator will adjust the Account of each Participant to reflect the effect of distributions, transfers, withdrawals, income, realized and unrealized profit and losses, contributions, and all other transactions with respect to the Trust Fund since the next preceding Valuation Date in accordance with generally accepted valuation methods consistently followed and uniformly applied. With respect to the Participant’s Roth Contribution subaccounts, the Administrator will maintain a record of the Participant’s investment in the contract with Code Section 72 and the date the Participant first contributed to his or her Roth subaccount for purposes of determining when the Five-Taxable-Year Period begins.

 

 

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5.3 D ISPOSITION OF F ORFEITURES OR S USPENSE A CCOUNT . Any portion of a Participant’s Account that is forfeited pursuant to any applicable provision under the Plan will be used to restore any amounts previously forfeited by Participants for whom such restoration is required under any applicable Plan provision. If any forfeitures for a Plan Year remain after the restoration of all required amounts, the remaining forfeitures will, at the discretion of the Administrator, be used for any of the following purposes: (i) to reduce the Employer’s contributions on behalf of Participants for the Plan Year(s) including and following the Plan Year in which occurs the event giving rise to the forfeitures, (ii) to pay the reasonable expenses of administering the Plan, and (iii) upon the election of the Employer, to be allocated to Participants as of the last day of the Plan Year or the following Plan Year as Employer Contributions. Forfeitures under this Plan will be available without regard to which Employer contributed such assets. The allocation method of this Section 5.3 will also apply with respect to the disposition of any Suspense Account.

 

5.4 D IRECTED I NVESTMENTS .

 

  (a) Participant Instructions. Subject to the provisions of this Section 5.4 , a Participant will, by providing appropriate instructions to the Administrator, or its representative, be entitled to direct the Trustee as to the percentage of any Participant and Employer contributions, and any contributions previously allocated to the Participant’s Account, to be invested in one or more of the types of investments made available for investment by Participants as determined by the Administrator. All Participant investment instructions are subject to the procedures required by the Administrator; however, Participants will be allowed to direct their investments at least quarterly.

 

  (b) Trustee Investment Pursuant to Instructions. As soon as administratively practicable, the Trustee will invest the applicable portions of the contributions that have been made on behalf of Participants, and the earnings and losses thereon, in accordance with all proper investment instructions received from Participants. To the extent that a Participant does not direct the investment of the amounts that are credited to the Participant’s Account, or the applicable portion thereof, the Participant’s Account will be invested by the Trustee in qualified default investment alternative (“QDIA”), as provided in ERISA Section 404(c)(5), and will be deemed to be invested pursuant to the Participant’s instructions. A Participant’s investment instructions will remain in effect until such time as is administratively practicable following receipt by the Trustee of a Participant’s proper request changing or revoking the Participant’s instructions then in effect pursuant to this Section 5.4 . Notwithstanding the foregoing, the Trustee will not be bound to comply with any investment direction if, in the Trustee’s sole discretion, such investment might adversely affect the tax qualification of the Plan or might otherwise be in violation of any applicable law.

 

  (c) ERISA Section 404(c) . This Plan is intended to satisfy the requirements of ERISA Section 404(c) relating to participant-directed investment plans, and

 

 

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  each Participant assumes all risk associated with any decrease in value resulting from Participant investment decisions. Neither the Administrator, the Trustee, the Sponsor nor the Employer is liable for investments made in compliance with a Participant’s directions and they are under no duty or obligation to review or evaluate such investment directions by any Participant. Each Participant assumes all risk connected with any decrease in the value of any funds in which his or her Account is invested.

 

  (d) Selection of Investment Options. The Administrator will from time to time establish all such rules and procedures that it determines to be necessary or appropriate for the proper administration of the investment options, including QDIAs, available to Participants. The Administrator will from time to time, in its sole discretion, determine the different investment choices available for investment by Participants, which must include at least three investment options (not counting the Employer Stock Fund). To the extent the Administrator eliminates any investment options, provides any new investment options or otherwise modifies the investment options that are available for investment under the Plan, the Administrator may impose such limitations, including the suspension of Participant directed investments and other benefits, rights and features under the Plan, as it deems necessary or appropriate for the proper administration of the investment options that are available to Participants. Neither the Administrator nor the Trustee will be bound to comply with any investment direction delivered to them if, in their sole discretion, such investment might adversely affect the tax qualification of the Plan or might otherwise be in violation of any applicable law.

 

  (e) Investments in Employer Stock; Diversification. The Employer Stock Fund must be one of the investment options available for investment by Participants under the Plan, but only with respect to the Safe Harbor Matching Contributions Account. Notwithstanding the foregoing, the Employer Stock Fund must be one of the investment options available for investment in other Accounts with respect to Participants who were invested in the Employer Stock Fund in such Accounts, but only to the extent that such Participants were invested in the Employer Stock Fund immediately prior to the Effective Date, and only with respect to the Participant’s transfers among investment options, not with respect to contributions. Safe Harbor Matching Contributions are initially automatically invested in the Employer Stock Fund, but the Participant may thereafter divest out of the Employer Stock Fund at any time.

 

5.5 S TATEMENTS . The Administrator will furnish on a quarterly basis and upon a Participant’s written request (up to one statement in any 12-month period), or upon such other more frequent intervals as determined by the Administrator, a statement to each Participant and Beneficiary of the net earnings or losses credited to or charged against the Participant’s Account, the amount of any annual contributions and forfeitures allocated to such Account, and the total vested and nonvested value of such Account.

 

 

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5.6 E MPLOYER S TOCK D IVIDEND R EINVESTMENT O PTION .

 

  (a) Election. Each ESOP Participant will be given an election with respect to Employer Stock Dividends as paid by the ESOP as to:

 

  (1) receiving the Employer Stock Dividends directly in cash or having the Employer Stock Dividends be contributed to the Participant’s Account in the Employee Stock Ownership Plan and then distributed in cash to the Participant not later than 90 days after the close of the Plan Year in which the Employer Stock Dividends are paid; or

 

  (2) reinvesting the Employer Stock Dividends in the Participant’s Account into additional Employer Stock.

 

  (b) Manner of Election. The election will be provided in a manner that satisfies the following requirements:

 

  (1) A Participant must be given a reasonable opportunity before an Employer Stock Dividend is paid or distributed to the Participant in which to make the election.

 

  (2) A Participant must have a reasonable opportunity to change an Employer Stock Dividend election at least annually.

 

  (3) If there is a change in the Plan terms governing the manner in which the Employer Stock Dividends are paid or distributed to Participants, a Participant must be given a reasonable opportunity to make an election under the new Plan terms prior to the date on which the first Employer Stock Dividend subject to the new Plan terms is paid or distributed.

 

  (4) If a Participant fails to make an affirmative dividend election, the Participant will be treated as reinvesting the Employer Stock Dividends in the Participant’s Account.

 

  (5) The election and procedure must meet any other applicable provisions of Code Section 404(k) and Internal Revenue Service Notice 2002-2.

 

5.7 V OTING OR T ENDERING E MPLOYER S TOCK F UND . Each ESOP Participant (or, in the event of the ESOP Participant’s Death, his or her Beneficiary) is, for purposes of this Section 5.7 , hereby designated a “named fiduciary,” within the meaning of Section 403(a)(1) of ERISA effective as of the date he or she is first allocated shares of the Employer Stock Fund, with respect to his or her proportionate share of all shares of Employer Stock held in the Employee Stock Ownership Plan.

 

  (a) Voting Rights. Each ESOP Participant (or Beneficiary) has the right, effective upon the first allocation of shares of the Employer Stock Fund to his or her Account, to the extent of his or her proportionate share (as

 

 

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  determined in the last sentence of this paragraph) of the shares of Employer Stock (of whatever class and whether or not allocated) held in the Employee Stock Ownership Plan, to instruct the Trustee in writing as to the manner in which to vote such shares at any shareholders’ meeting of Encana Corporation. The Administrator will use its best efforts to timely distribute or cause to be distributed to each ESOP Participant (or Beneficiary) the information distributed to shareholders of Encana Corporation in connection with any such shareholders’ meeting, together with a form whereby the ESOP Participant will provide confidential instructions to the Trustee on how such shares of Employer Stock will be voted on each such matter. Upon timely receipt of such instructions, the Trustee will, on each such matter, vote as directed the appropriate number of shares (including fractional shares) of Employer Stock. If, and to the extent that, the Trustee has not received timely instructions from any individual given a right to instruct the Trustee with respect to certain shares by this paragraph, the Trustee will treat the lack of instructions as intended by such individual to not vote such shares. Notwithstanding the foregoing, the voting of all shares of Employer Stock will be made in accordance with ERISA, its regulations, and other guidance of general applicability issued thereunder. The instructions received by the Trustee from individual ESOP Participants (or Beneficiaries) will be held by the Trustee in strict confidence and will not be divulged or released to any person, including officers or employees of the Employer or any entity in the Affiliated Group; provided, however, that, to the extent necessary for the operation of the Plan, such instructions may be relayed by the Trustee to a recordkeeper, auditor or other person providing services to the Plan if such person (i) is not the Employer or an entity in the Affiliated Group, and (ii) agrees not to divulge such directions to any other person, including employees, officers and directors of the Employer and any entity in the Affiliated Companies. The proportionate share of any ESOP Participant (or Beneficiary) of shares of Employer Stock held in the Employer Stock Fund is a fraction, the numerator of which is the number of shares described in the first sentence of this paragraph (a)  that are held in such individual’s Account and for which he or she provides instructions to the Trustee, and the denominator of which is the number of such shares in all such Accounts for which instructions are provided to the ESOP.

 

  (b) Rights on Tender or Exchange Offer. Each ESOP Participant (or Beneficiary) has the right, to the extent of the ESOP Participant’s proportionate share (as determined in the last sentence of Section 5.7(a)) of the shares of Employer Stock (of whatever class and whether or not allocated) held in the Employee Stock Ownership Plan, to instruct the Trustee in writing as to the manner in which to respond to a tender or exchange offer with respect to such shares. The Administrator will use its best efforts to timely distribute or cause to be distributed to each such Participant (or Beneficiary) the information distributed to shareholders of Encana Corporation in connection with any such tender or exchange offer. Upon timely receipt of such instructions, the Trustee will respond as

 

 

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  instructed with respect to such shares of such Employer Stock. If, and to the extent that, the Trustee has not received timely instructions from any individual given a right to instruct the Trustee with respect to certain shares by this paragraph, such individual will be deemed to have timely instructed the Trustee not to tender or exchange such shares. The instructions received by the Trustee from individual Participants (or Beneficiaries) will be held by the Trustee in strict confidence and will not be divulged or released to any person, including officers or employees of the Employer or any entity in the Affiliated Group; provided, however, that, to the extent necessary for the operation of the Plan, such instructions may be relayed by the Trustee to a recordkeeper, auditor or other person providing services to the Plan if such person (i) is not the Employer or an entity in the Affiliated Group, and (ii) agrees not to divulge such instructions to any other person, including employees, officers and directors of the Employer and any entity in the Affiliated Group.

*  *  *  *   End of Article 5    *  *  *  *

 

 

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ARTICLE 6.

LIMITATIONS ON BENEFITS

 

6.1 D EFINITIONS . For purposes of applying the nondiscrimination tests of this Article 6 , the following definitions apply:

 

  (a) Aggregate Contributions means Employer matching contributions (that do not qualify as Safe Harbor Matching Contributions) (to the extent not taken into account for purposes of the actual deferral percentage test (“ADP Test”)) made under the Plan on behalf of a Participant for the Plan Year. Aggregate Contributions will not include matching contributions that are forfeited either to correct Excess Aggregate Contributions or because the contributions to which they relate are Excess Deferrals, Excess Contributions, or Excess Aggregate Contributions.

 

  (b) Cash or Deferred Arrangement means that a Participant may elect to have the Employer make payments on behalf of the Participant either as Employer contributions to the Plan or to the Participant directly in cash.

 

  (c) Elective Deferral Limit means the limit on elective deferrals provided in Code Section 402(g), as adjusted under Code Section 402(g)(4).

 

  (d) Excess Aggregate Contributions means the amount of Aggregate Contributions made on behalf of the Highly Compensated Participants that causes the Plan to fail to satisfy the actual contribution percentage test (“ACP Test”).

 

  (e) Excess Contributions means the amount of Elective Deferrals made by Highly Compensated Participants that causes the Plan to fail the ADP Test.

 

  (f) Excess Deferrals means Elective Deferrals in excess of the Elective Deferrals Limit, or Elective Deferrals designated by the Participant as Excess Deferrals under the Plan.

 

  (g) Highly Compensated Group means the group of Participants who are Highly Compensated Participant for the Plan Year.

 

  (h) Non-Highly Compensated Group means the group of Participants who are Non-Highly Compensated Participants for the Plan Year.

 

6.2 A VERAGE D EFERRAL P ERCENTAGE L IMITATIONS . The ADP Test of Code Section 401(k)(3) will be deemed satisfied by virtue of the Plan’s design and operation as a Safe Harbor Plan. Should this Plan fail to be a Safe Harbor Plan for the purposes of the ADP Test due to the definition of Compensation failing nondiscrimination testing, the following limitations of this Section 6.2 will apply:

 

 

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  (a) General Rule. For each Plan Year, the actual deferral percentage (“ADP”) (calculated pursuant to Section 6.2(e)) below) for the Highly Compensated Group and the ADP for the Non-Highly Compensated Group must satisfy either of the following ADP Tests:

 

  (1) The ADP for the Highly Compensated Group for any Plan Year will not exceed the ADP for the Non-Highly Compensated Group multiplied by 1.25; or

 

  (2) The ADP for the Highly Compensated Group for any Plan Year will not exceed the ADP for the Non-Highly Compensated Group multiplied by 2, provided that the ADP for the Highly Compensated Group for such year is not more than two percentage points higher than the ADP for the Non-Highly Compensated Group for such year.

 

  (b) Use of Current Year Data. The ADP for both the Highly Compensated Group and the Non-Highly Compensated Group will be calculated using data from the current Plan Year.

 

  (c) Aggregation of Plans.

 

  (1) The actual deferral ratio will be determined with respect to any Participant who is a Highly Compensated Participant for the Plan Year by aggregating his or her elective deferrals in all plans maintained by all Affiliated Employers. If a Highly Compensated Participant participates in two or more cash or deferred arrangements that have different plan years, all cash or deferred arrangements ending with or within the same calendar year will be treated as a single arrangement unless mandatorily disaggregated under regulations promulgated under Code Section 401(k).

 

  (2) In the event that this Plan satisfies the requirements of Code Section 401(k), 401(a)(4) or 410(b) only if aggregated with one or more other plans, or if one or more other plans satisfy the requirements of such sections only if aggregated with this Plan, then this section will be applied by determining the ADP as if all such plans were a single plan. A plan may be aggregated with this Plan for the ADP Test of this section only if both plans have the same plan year and use the same testing method (i.e., current year or prior year).

 

  (d) Permissive Disaggregation. In its discretion, the Administrator may:

 

  (1) Exclude from the Non-Highly Compensated Group for the ADP Test all Non-Highly Compensated Participants who have not met the minimum age and service requirements of Code Section 410(a)(1)(A), provided the Employer also elects to exclude such individuals to apply Code Section 410(b)(4)(B) for coverage purposes;

 

 

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  (2) Run two separate ADP Tests, one for all Participants in the Non-Highly Compensated Group and Highly Compensated Group who have not met the minimum age and service requirements of Code Section 410(a)(1)(A), and another test for all remaining Participants in the Non-Highly Compensated Group and the Highly Compensated Group; or

 

  (3) Not exclude any Participants from the Non-Highly Compensated Group or the Non-Highly Compensated Group for the ADP Test.

 

  (e) Calculation of ADP. The ADP for each group is the average of the actual deferral ratios for the Participants in each group, calculated separately for each Participant by dividing such Participant’s Elective Deferrals for the applicable Plan Year (plus all or a portion of QNECs and/or QMACS, if any, made with respect to the Participant for such Plan Year, provided that the conditions in Treas. Reg. Section 1.401(k)-2(a)(6) are satisfied) by the Participant’s Testing Compensation. For purposes of this section, Elective Deferrals do not include: (1) Catch-Up Contributions; (2) Excess Deferrals by Non-Highly Compensated Participants that arise solely from Elective Deferrals made under the Plan or any other plan maintained by the Employer; and (3) Elective Deferrals taken into account for the ACP Test, provided the ADP Test is satisfied both by excluding and not excluding such Elective Deferrals. Each Participant’s actual deferral ratio will be calculated to the nearest 100th of 1%.

 

  (f) Correcting ADP Failure – Contribution of QNECs. For any Plan Year, the Administrator may, in its discretion, elect to have the Employer make QNECs to the Plan on behalf of Non-Highly Compensated Participants to the extent necessary to satisfy the requirements of this Section, either: (a) in proportion to the Non-Highly Compensated Participants’ Testing Compensation, (b) in a specific dollar amount allocable to each Non-Highly Compensated Participant, or (c) in a specific dollar amount allocated to less than all Non-Highly Compensated Participants, allocated first to those Employees with the lowest ADP; provided, however, that QNECs to a Non-Highly Compensated Participant under this subsection (c) will comply with Regulation Section 1.401(k)-2(a)(6)(iv). QNECs made on behalf of a Participant will be credited to the Participant’s QNEC Account.

 

  (g) Correcting ADP Failure – Conversion to Catch-Up Contributions. For any Plan Year, the Administrator may elect to convert Elective Deferrals made to the Plan on behalf of a Highly Compensated Participant to Catch-Up Contributions to the extent necessary to satisfy the requirements of this section, provided such Highly Compensated Participant is eligible to make Catch-Up Contributions and has not exceeded the Catch-Up Contribution limit under Code Section 414(v).

 

 

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  (h) Correcting ADP Failure – Contribution of or Conversion and Shifting of QMACs. For any Plan Year, the Administrator may, in its discretion, elect to have the Employer make QMACs to the Plan on behalf of Non-Highly Compensated Participants, or may elect to convert Matching Contributions made to the Plan on behalf of Non-Highly Compensated Participants to QMACs and shift all or part of the QMACs to the ADP Test instead of the ACP Test, to the extent necessary to satisfy the requirements of this section, either (a) in proportion to the Non-Highly Compensated Participants’ Testing Compensation (b) in a specific dollar amount allocable to each Non-Highly Compensated Participant, or (c) in a specific dollar amount allocated to less than all Non-Highly Compensated Participants, allocated first to those Employees with the lowest ACP; provided, however, that QMACs to a Non-Highly Compensated Participant under this subsection (c) will comply with Regulation Section 1.401(m)-2(a)(5)(ii). QMACs made on behalf of a Participant will be credited to the Participant’s QMAC Account.

 

  (i) Correcting ADP Failure – Refund of Excess Contributions. For any Plan Year, the Administrator may, in its discretion, elect to refund Excess Contributions to the extent necessary to satisfy the requirements of this Section. This subsection (i)  will be a correction method that may be used as an alternative to, or in combination with, subsections (g)  and/or (h) .

 

  (1) Timing . The refund of Excess Contributions, adjusted for earnings, will occur no later than 12 months following the Plan Year in which the excess occurred. The amount of the Excess Contributions that are distributed with respect to any Highly Compensated Participant for a Plan Year will be reduced by any Excess Deferrals that were previously distributed to the individual for the Plan Year to meet the requirements of any other limitation imposed by law.

 

  (2) Correction . Refunds of Excess Contributions will be made by (A) determining the amount of the total Excess Contributions that must be distributed in order to meet the ADP Test, and then (B) reducing the dollar amount of Elective Deferrals of the Highly Compensated Participants with the highest dollar amount of Elective Deferrals to the level of the Highly Compensated Participants with the next highest dollar amount of Elective Deferrals and refunding the excess amount to the affected Highly Compensated Participants. However, if a lesser reduction, when added to the total amount distributed under (B), would equal the amount of the excess, then the lesser amount will be distributed. If the total amount distributed is less than the total Excess Contributions, then (B) will be repeated as many times as necessary.

 

  (3) Income or Loss . The Administrator will adjust Excess Contributions for any income or loss up to the date of distribution. The Administrator may use any reasonable method for computing the

 

 

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  income or loss allocable to such Excess Contributions, provided that the method does not violate Code Section 401(a)(4) and is used consistently for allocating income or loss to Participant Accounts and for all corrective distributions under the Plan for the Plan Year.

 

6.3 A VERAGE C ONTRIBUTION P ERCENTAGE L IMITATIONS . The ACP Test of Code Section 401(m)(1) will be deemed satisfied by virtue of the Plan’s design and operation as a Safe Harbor Plan. Should this Plan be fail to be a Safe Harbor Plan for the purposes of the ACP Test due to the definition of Compensation failing nondiscrimination testing, the following limitations of this Section 6.3 will apply:

 

  (a) General Rule. For each Plan year, the actual contribution percentage (“ACP”) (calculated pursuant to Section 6.3(e) below) for the Highly Compensated Group and the ACP for the Non-Highly Compensated Group must satisfy one of the following ACP Tests:

 

  (1) The ACP for the Highly Compensated Group for any Plan Year will not exceed the ACP for the Non-Highly Compensated Group multiplied by 1.25; or

 

  (2) The ACP for the Highly Compensated Group for any Plan Year will not exceed the ACP for the Non-Highly Compensated Group multiplied by 2, provided that the ACP for the Highly Compensated Group for such year is not more than two percentage points higher than the ACP for the Non-Highly Compensated Group for such year.

 

  (b) Use of Current Year Data. The ACP for both the Highly Compensated Group and the Non-Highly Compensated Group will be calculated using data from the current Plan Year.

 

  (c) Aggregation of Plans.

 

  (1) The actual contribution ratio will be determined with respect to any Participant who is a Highly Compensated Participant for the Plan Year by aggregating his or her matching contributions and any other voluntary and mandatory nondeductible employee contributions made on his or her behalf in all plans maintained by all Affiliated Employers. If a Highly Compensated Participant participates in two or more cash or deferred arrangements that have different plan years, all cash or deferred arrangements ending with or within the same calendar year will be treated as a single arrangement unless mandatorily disaggregated under regulations promulgated under Code Section 401(k).

 

  (2) In the event that this Plan satisfies the requirements of Code Section 401(k), 401(a)(4) or 410(b) only if aggregated with one or more other plans, or if one or more other plans satisfy the requirements of such sections only if aggregated with this Plan, then

 

 

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  this section will be applied by determining the ACP as if all such plans were a single plan. A plan may be aggregated with this Plan for the ACP Test of this section only if both plans have the same plan year and use the same testing method (i.e., current year or prior year).

 

  (d) Permissive Disaggregation. In its discretion, the Administrator may:

 

  (1) Exclude from the Non-Highly Compensated Group for the ACP Test all Non-Highly Compensated Participants who have not met the minimum age and service requirements of Code Section 410(a)(1)(A), provided the Employer also elects to exclude such individuals to apply Code Section 410(b)(4)(B) for coverage purposes;

 

  (2) Run two separate ACP Tests, one for all Participants in the Non-Highly Compensated Group and Highly Compensated Group who have not met the minimum age and service requirements of Code Section 410(a)(1)(A), and another test for all remaining Participants in the Non-Highly Compensated Group and the Highly Compensated Group; or

 

  (3) Not exclude any Participants from the Non-Highly Compensated Group or the Non-Highly Compensated Group for the ACP Test.

 

  (e) Calculation of ACP. The ACP for each group is the average of the separate contribution percentages for the Participants in each group, calculated separately for each Participant by dividing such Participant’s aggregate Matching Contributions for the Plan Year (plus all or a portion of QMACs, if any, made with respect to the Participant for such Plan Year, plus all or a portion of QNECs, if any, and Elective Deferrals made with respect to the Participant for such Plan Year provided that the conditions described in Treas. Reg. Section 1.401(m)-2(a)(6) are satisfied) by the Participant’s Testing Compensation. Each Participant’s contribution percentage will be calculated to the nearest 100th of 1%.

 

  (f) Correcting ACP Failure – Contribution of QMACs. For any Plan Year, the Administrator may, in its discretion, elect to have the Employer make QMACs to the Plan on behalf of Non-Highly Compensated Participants to the extent necessary to satisfy the requirements of this section, either (a) in proportion to the Non-Highly Compensated Participants’ Testing Compensation (b) in a specific dollar amount allocable to each Non-Highly Compensated Participant, or (c) in a specific dollar amount allocated to less than all Non-Highly Compensated Participants, allocated first to those Employees with the lowest ACP; provided, however, that QMACs to a Non-Highly Compensated Participant under this subsection (c) will comply with Regulation Section 1.401(m)-2(a)(5)(ii). QMACs made on behalf of a Participant will be credited to the Participant’s QMAC Account.

 

 

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  (g) Correcting ACP Failure – Forfeiture of Excess Aggregate Contributions. For any Plan Year, the Administrator may, in its discretion, elect to forfeit Excess Contributions to the extent necessary to satisfy the requirements of this section. This subsection (g)  will be a correction method that may be used as an alternative to, or in combination with, subsection (f) .

 

  (1) Timing . The forfeiture of Excess Aggregate Contributions, adjusted for earnings, will occur within 12 months following the Plan Year in which the excess occurred.

 

  (2) Correction . Corrections of Excess Aggregate Contributions will be made by (A) determining the amount of the total Excess Aggregate Contributions that must be forfeited in order to meet the ACP Test, and then (B) reducing the dollar amount of Excess Aggregate Contributions of the Highly Compensated Participants with the highest dollar amount of Excess Aggregate Contributions to the level of the Highly Compensated Participants with the next highest dollar amount of Excess Aggregate Contributions. However, if a lesser reduction, when added to the total amount forfeited under (B), would equal the total amount of the excess, then the lesser amount will be forfeited. If the total amount forfeited is less than the total Excess Aggregate Contributions, then (B) will be repeated as many times as necessary.

 

  (3) Source . Excess Aggregate Contributions will be distributed from a Highly Compensated Participant’s Employer Match Account, then forfeitures, to the extent necessary to effect the required correction.

 

  (4) Income or Loss . The Administrator will adjust Excess Aggregate Contributions for any income or loss up to the date of distribution. The Administrator may use any reasonable method for computing the income or loss allocable to Excess Aggregate Contributions, provided that the method does not violate Code Section 401(a)(4) and is used consistently for allocating income or loss to Participants’ Accounts and for all corrective distributions under the Plan for the Plan Year.

 

6.4 E LECTIVE D EFERRAL L IMITATION .

 

  (a) General Rule. A Participant’s Deferral Contributions (excluding Catch-Up Contributions) for any Plan Year, when aggregated with any other elective deferrals within the meaning of Code Section 402(g)(3) to any plans maintained by any member of the Affiliated Group, may not exceed the dollar limitation of Code Section 402(g)(1), or such other limit as adjusted by law or in accordance with Regulations for changes in the cost of living. If the Administrator determines a Participant’s Deferral Contributions (excluding Catch-Up Contributions) would be Excess Deferrals, the Administrator may suspend the Participant’s Deferral Contributions

 

 

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  (excluding Catch-Up Contributions, subject to the limit on Catch-Up Contributions) until the following January 1. If a Participant’s Deferral Contributions (excluding Catch-Up Contributions) should exceed the dollar limitation of Code Section 402(g)(1) when aggregated with any other elective deferrals made to any plans that are not maintained by the Affiliated Group, the Participant may assign to this Plan any excess elective Deferral Contributions made during a taxable year of the Participant by notifying the Administrator in writing, on or before April 1 following the calendar year when the Excess Deferrals are made, of the amount of the Excess Deferrals to be assigned to the Plan.

 

  (b) Distribution of Excess Deferrals. If, after the close of a calendar year, the Administrator determines a Participant has Excess Deferrals or if the Administrator receives a timely claim of Excess Deferrals from the Participant, it will distribute the Excess Deferrals no later than April 15th of the calendar year following the calendar year in which the Excess Deferrals occurred, or if later, the calendar year in which the Excess Deferrals were discovered.

 

  (c) Distribution of Pre-Tax Contributions and Roth Contributions. The Participant may elect, under procedures established by the Administrator, whether distribution of Excess Deferrals will first be made from the Participant’s Pre-Tax Contributions, Roth Contributions or a combination of both Pre-Tax Contributions and Roth Contributions to the extent such contributions were made during the Plan Year in which the Excess Deferral occurred. If no election is made, the Administrator will distribute Excess Deferrals pro rata, based on the amount of Pre-Tax Contributions and Roth Contributions made during the Plan Year in which the Excess Deferral occurred. A distribution of Excess Deferrals from a Participant’s Account related to Roth Contributions will not be treated as a Qualified Distribution.

 

  (d) Determination of Allocable Income or Loss. The Administrator will adjust Excess Deferrals to be distributed under this Section 6.4 for income or loss up to the end of the taxable year for which the Excess Deferrals occurred. The Administrator may use any reasonable method for computing the income or loss allocable to the Excess Deferrals, provided that the method does not violate Code Section 401(a)(4) and is used consistently for allocating income or loss to Participant Accounts and for all corrective distributions under the Plan for the Plan Year.

 

 

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6.5 A NNUAL A DDITIONS L IMITATION .

 

  (a) General Rule. The maximum Annual Additions credited to the Account of any Participant for any Limitation Year under this Plan, when aggregated with the Annual Additions to any other qualified defined contribution retirement plan maintained by the Employer or any other member of the Affiliated Group, will not exceed an amount equal to the lesser of:

 

  (1) 100% of the Participant’s Testing Compensation for the Limitation Year, or

 

  (2) $40,000, as adjusted for cost of living changes under Code Section 415.

 

  (b) Excess Annual Additions. Excess Annual Additions allocated to a Participant’s Account will be corrected through the Employee Plans Compliance Resolution System or such other correction method allowed by statute, Regulations, or regulatory authorities. Excess Annual Additions may be held in the Suspense Account.

 

  (c) Incorporation by Reference to Limitations. To the extent any provisions of the Plan conflict with Code Section 415 or the applicable Regulations, Code Section 415 and the applicable Regulations govern.

*  *  *  *   End of Article 6    *  *  *  *

 

 

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ARTICLE 7.

DISTRIBUTION OF PLAN BENEFITS

 

7.1 D ISTRIBUTION E VENTS . A Participant is eligible for a distribution upon Disability or severance from employment with the Employer. A Participant’s Beneficiary or estate, as applicable, is eligible for a distribution upon the Participant’s Death. An alternate payee is eligible for a distribution upon qualification of a domestic relations order (as if a Participant eligible for immediate distribution).

 

7.2 A MOUNT OF D ISTRIBUTION . Upon a distribution event, a Participant or the Participant’s Beneficiary will become entitled to the vested value of the Participant’s Account determined as of the Valuation Date coinciding with the distribution date (or if the distribution date is not a Valuation Date, as of the immediately preceding Valuation Date).

 

7.3 F ORM OF D ISTRIBUTION .

 

  (a) In General. Except as otherwise provided in Schedule C to the Plan, in Section 7.4(a) , and Section 7.3(b) , the Participant’s Account determined under Section 7.2 will be distributed to the Participant (or Beneficiary) in cash (or, in the discretion of the Administrator, in kind) and in one of the following forms as elected by the Participant (or Beneficiary):

 

  (1) Single Lump Sum . A single lump sum payment.

 

  (2) Installment Payments . Substantially equal payments in monthly, quarterly, semi-annual, annual or other installments over a fixed reasonable period of time, but not exceeding the life expectancy of the Participant or the joint life expectancy of the Participant and the Participant’s Spouse or Beneficiary. A Participant (or Beneficiary) who has elected to receive installment payments may, at any time, elect to accelerate the payment of all, or any portion, of the Participant’s unpaid vested Account.

Effective January 1, 2015, the Participant’s entire Account determined under Section 7.2 will be distributed to the Participant (or Beneficiary) in the same form and subject to the same conditions as described below under Section 7.3(b) notwithstanding such Section’s explicit application to only the Participant’s Transfer Account. Notwithstanding anything in the Plan to the contrary, with respect to distributions from a Participant’s Account invested in the Employer Stock Fund, the Participant may elect in the manner required by the Administrator to receive such distribution in Employer Stock to the extent so invested.

 

  (b)

Transfer Account. Except as otherwise provided in Section 7.4(a) , a Participant’s Transfer Account will be distributed to the Participant in the normal form of distribution described under Section 7.3(b)(1) or, if the

 

 

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  Participant makes a valid waiver election pursuant to Section 7.3(b)(3)(C) , then in one of the optional forms of benefit available under Section 7.3(b)(2) .

 

  (1) Normal Form of Distribution: Qualified Joint and Survivor Annuity . The normal form of distribution is a Qualified Joint and Survivor Annuity. The Administrator may, in its discretion, distribute to the Participant an annuity contract purchased on behalf of the Participant.

 

  (2) Optional Forms of Distribution . The optional forms of distribution of a Participant’s vested Transfer Account available under the Plan are:

 

  (A) Single Lump Sum . A single lump sum payment in cash.

 

  (B) Installment Payments . Substantially equal cash payments in monthly, quarterly, semi-annual, annual or other installments over a fixed reasonable period of time, but not exceeding the life expectancy of the Participant or the joint life expectancy of the Participant and the Participant’s Spouse or Beneficiary. A Participant who has elected to receive installment payments may, at any time, elect to accelerate the payment of all, or any portion, of the Participant’s unpaid vested Transfer Account.

 

  (C) Qualified Optional Survivor Annuity . A Qualified Optional Survivor Annuity, provided, that spousal consent will not be required if the Participant elects this optional form of payment.

 

  (D) Annuity . An immediate annuity that is purchasable with the Participant’s vested Transfer Account and provides a life annuity for the Participant or a joint and survivor annuity payable over the joint lives of the Participant and the Participant’s Beneficiary.

 

  (3) Distribution Election; Waiver of Qualified Joint and Survivor Annuity . A Participant may elect to receive a distribution of his or her Transfer Account at any time following the date the Participant separates from service with the Employer, subject to the provisions of Section 7.4 . The Participant’s election will be irrevocable.

 

  (A)

Benefit Notice . Not earlier than 180 days before the Participant’s Annuity Starting Date, the Administrator will provide the Participant a written explanation of the terms and conditions of the Qualified Joint and Survivor Annuity; the optional methods of distribution available under the Plan, including the material features and relative values of those methods; the Participant’s right to defer distribution of his or her Account, if any; the Participant’s right to make, and the effect of, an election to waive the Qualified Joint and Survivor Annuity form of benefit; the rights of the Participant’s Spouse

 

 

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  regarding the waiver election; and the Participant’s right to make, and the effect of, a revocation of a waiver election. A Participant may elect (with any applicable Spousal consent) to waive any requirement that the written notice be provided at least 30 days before the Annuity Starting Date if the distribution commences more than seven days after such notice is provided.

 

  (B) Distribution in Accordance with Participant’s Election . If a Participant makes an election under this Section 7.3(b)(3) , the Administrator will direct the Trustee to distribute the Participant’s vested Account in accordance with that election. The Participant will make an election in such manner as approved by the Administrator at any time before the Trustee otherwise would distribute a Participant’s Account in accordance with the requirements of this Article 7 .

 

  (C) Waiver of Annuity . A Participant may receive a distribution of his or her vested Account without regard to the annuity provisions if the Participant’s election effectively waives the Qualified Joint and Survivor Annuity. A married Participant’s waiver election is not valid unless:

 

  (i) the Participant’s Spouse (to whom the survivor annuity is payable under the Qualified Joint and Survivor Annuity) has consented in writing to the waiver election, the Spouse’s consent acknowledges the effect of the election, and a notary public or the Administrator (or the Administrator’s representative) witnesses the Spouse’s consent;

 

  (ii) the Spouse consents to the alternate form of distribution designated by the Participant or to any change in that designated form of distribution; and

 

  (iii) the Spouse consents to the Participant’s designation of a Beneficiary other than the Spouse or to any change in the Participant’s Beneficiary designation.

 

  (D)

Exceptions to Spousal Consent . The Administrator may accept as valid a waiver election which does not satisfy the spousal consent requirements if the Administrator establishes the Participant does not have a Spouse, the Participant’s Spouse is not able to be located, the Participant is legally separated or has been abandoned (within the meaning of applicable state law) and the Participant has a court order to that effect, or

 

 

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  other circumstances exist under which the Secretary of the Treasury will excuse the consent requirement.

 

  (E) Scope of Spousal Consent . The Spouse may execute a blanket consent to any form of distribution designation made by the Participant, if the Spouse acknowledges the right to limit that consent to a specific designation but, in writing, waives that right.

 

  (F) Revocation of Waiver . The Spouse’s consent to a waiver of the Qualified Joint and Survivor Annuity is irrevocable, unless the Participant revokes the waiver election. A Participant is entitled to revoke a waiver of the Qualified Joint and Survivor Annuity or to make a new waiver an unlimited number of times during the election period.

 

7.4 T IMING OF D ISTRIBUTION . Except as otherwise provided in Schedule C to the Plan, the total amount that a Participant is entitled to receive under this Article 7 will be distributed as follows:

 

  (a) Amount Does Not Exceed the Cash-Out Limit. If the Participant’s vested Account balance as of the Participant’s severance from employment does not exceed the Cash-Out Limit, the Administrator will direct the Trustee to distribute the vested value directly to such Participant (or Beneficiary) without the consent of the Participant as soon as administratively feasible after the Participant’s severance from employment.

 

  (b)

Amount Exceeds the Cash-Out Limit. If the Participant’s vested Account balance as of the Participant’s severance from employment exceeds the Cash-Out Limit, the Participant (or Beneficiary) may elect to have the vested value paid to him or her as soon as administratively feasible following the date selected by the Participant on an Application for Benefits, but in no event later than the Participant’s Required Distribution Date. The form of payment will be one of the forms available under Section 7.3 . Unless the Participant (or Beneficiary) elects otherwise (or is deemed to elect to defer by a failure to elect distribution) and subject to Section 7.6 , the distribution of the Participant’s vested Account will commence no later than the 60th day after the latest of the close of the Plan Year in which the Participant separates from service with the Employer, attains Normal Retirement Age, or reaches the 10th anniversary of the year in which the Participant began participation in the Plan. However, if the amount of the distribution cannot be ascertained by the applicable distribution date or if it is not possible to make such distribution because the Administrator is unable to locate the Participant (or Beneficiary) after making reasonable efforts to do so, in accordance with Regulation Section 1.401(a)-14(d), a payment retroactive to such distribution date may be made no later than 60 days after the earliest date on which the

 

 

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  amount of such payment can be ascertained or the date on which the Participant is located, whichever applies.

 

7.5 N OTICE . The Administrator will provide notice to the Participant not earlier than 180 days before the Participant’s distribution date. The notice will explain the optional methods of distribution from the Plan, including the material features and relative values of those methods, the Participant’s right to defer distribution until the Participant attains the Participant’s Required Distribution Date, the consequences of the Participant’s failure to defer and the Participant’s right to consider whether to elect a distribution for a period of at least 30 days. Such distribution may commence fewer than 30 days after the benefit notice is given, provided that the Participant, after receiving the notice, affirmatively elects a distribution.

 

7.6 R EQUIRED M INIMUM D ISTRIBUTIONS . Notwithstanding anything herein to the contrary, all distributions under the Plan must be made starting no later than the Required Distribution Date, and determined and made in accordance with the requirements of Code Section 401(a)(9) and Regulation Sections 1.401(a)(9)-1 through 1.401(a)(9)-9, including the incidental death benefit requirement in Code Section 401(a)(9)(G). The requirements of Code Section 401(a)(9) and the Regulations take precedence over any inconsistent provision in the Plan.

 

7.7 D EATH B ENEFITS .

 

  (a) In general. Except as otherwise provided in Section 7.7(b) , the Participant’s Account will be distributed to the Participant’s Beneficiary upon the Participant’s Death as follows:

 

  (1) Distribution to Beneficiary . The value of the Death benefit will be determined as of the Valuation Date coinciding with the distribution date (or if the distribution date is not a Valuation Date, as of the immediately preceding Valuation Date). The Participant’s Beneficiary will be entitled to receive the benefit determined as described in Section 7.2 and in a form that would have been available to the Participant (had he or she terminated) under Section 7.3 .

 

  (2) Required Timing of Distribution . The amount to which a Beneficiary is entitled under this Article 7 will be distributed to the Beneficiary as soon as administratively feasible following the submission of an Application for Benefits by the Beneficiary following the Participant’s Death, subject to the automatic cash-out provisions of Section 7.4(a) . In no event will the Death benefit commence later than the end of the Plan Year that includes the first anniversary of the Participant’s Death; provided, however, in the case of a spousal Beneficiary, the distribution date may be deferred until the end of the Plan Year in which the Participant would have attained age 70  1 2 . Notwithstanding the foregoing, the requirements of Section 7.6 apply.

 

 

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  (b) Transfer Account. A Participant’s Transfer Account will be distributed to the Participant’s Beneficiary upon the Participant’s Death as provided under Sections 7.7(b)(1) or 7.7(b)(2) , as applicable.

 

  (1) Unmarried Participants. If an unmarried Participant dies, the Administrator will direct the Trustee to distribute the nonforfeitable portion of the Participant’s Transfer Account to the Participant’s Beneficiary.

 

  (A) Account Does Not Exceed Cash-Out Limit . If the Participant’s nonforfeitable Account does not exceed the Cash-Out Limit, the Administrator will direct the Trustee to make a single lump sum payment to the Participant’s Beneficiary.

 

  (B) Account Exceeds the Cash-Out Limit . If the Participant’s nonforfeitable Account exceeds the Cash-Out limit, the Participant’s nonforfeitable Transfer Account will be payable to the Participant’s Beneficiary in the form elected by the Beneficiary, which form will either be a single lump sum payment or annual installments, at the time elected by the Beneficiary but in compliance with Section 7.6 .

 

  (2) Married Participants. If a married Participant dies prior to the Participant’s Annuity Starting Date, the Administrator will direct the Trustee to distribute the nonforfeitable portion of the Participant’s Transfer Account to the Participant’s Spouse in the form of a Qualified Preretirement Survivor Annuity, unless the Participant has a valid waiver election in effect. The Administrator may, in its discretion, distribute to the Spouse such annuity contract purchased on behalf of the Spouse.

 

  (A) Account Does Not Exceed Cash-Out Limit . If the Participant’s nonforfeitable Account does not exceed the Cash-Out Limit:

 

  (i) The Administrator will direct the Trustee to make a single lump sum payment to the Participant’s Spouse, the portion of the nonforfeitable Transfer Account that would have otherwise been payable as a Qualified Preretirement Survivor Annuity, in lieu of the Qualified Preretirement Survivor Annuity.

 

  (ii) The Administrator will direct the Trustee to make a single lump sum payment to the Participant’s Beneficiary of the remaining portion of the Participant’s nonforfeitable Transfer Account.

 

  (B) Account Exceeds Cash-Out Limit . If the Participant’s nonforfeitable Account exceeds the Cash-Out Limit:

 

 

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  (i) The Participant’s Spouse will be entitled to elect to have the Trustee commence distribution of the nonforfeitable Transfer Account in the form of a Qualified Preretirement Survivor Annuity with respect to 50% of the participant’s nonforfeitable Transfer Account, at any time following the date of the Participant’s death, but not later than as required under Section 7.6 . The Spouse will be entitled to elect a single lump sum payment or annual installments (that satisfy any minimum distribution requirements under Section 7.6 ) in lieu of the Qualified Preretirement Survivor Annuity. In the absence of an election by the Spouse, the Administrator will direct the Trustee to distribute the Qualified Preretirement Survivor Annuity 60 days following the close of the Plan Year in which the Participant’s death occurred.

 

  (ii) The portion of the Participant’s nonforfeitable Transfer Account not payable to the Spouse as a Qualified Preretirement Survivor Annuity will be payable to the Participant’s Beneficiary in the form elected by the Beneficiary, which form will be either a single lump sum payment or annual installments, at the time elected by the Beneficiary but in compliance with any minimum distribution requirements under Section 7.6 .

 

7.8 D ETERMINATION OF B ENEFICIARY . Each Participant has the right to designate a Beneficiary in the manner prescribed for such designation by the Administrator and in accordance with the following rules:

 

  (a) Spouse as Beneficiary; Consent. In all cases, the Participant’s Beneficiary will be the Participant’s Spouse, unless (1) the Beneficiary is otherwise determined pursuant to Section 7.8(d) , or (2) the Participant elects to name a different Beneficiary (or Beneficiaries) and the Participant’s Spouse consents to such election. The Spouse’s consent must be in writing, must acknowledge the effect of the election, must be witnessed by a Plan representative or a notary public, and must meet one of the following requirements:

 

  (1) the consent names a specific Beneficiary that cannot be changed without the additional consent of the Spouse in a form meeting the requirements of this Section 7.8 ;

 

  (2)

the consent specifically provides that the Participant may change the designation of a Beneficiary without any further consent by the Spouse, and the Spouse acknowledges in the consent that the Spouse

 

 

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  is giving up the right to limit his or her consent to a specific Beneficiary; or

 

  (3) the consent specifically provides that the Participant may change the designation of a Beneficiary, with such change being limited to a change among certain Beneficiaries, without any further consent by the Spouse, and the Spouse acknowledges in the consent that the Spouse is giving up the right to limit his or her consent to a specific Beneficiary.

 

  (b) Exceptions. A Spouse’s consent will not be required if it is established to the satisfaction of the Administrator that the required consent cannot be obtained because (1) the Participant does not have a Spouse; (2) the Spouse cannot be located; or (3) other circumstances exist under which the Secretary of the Treasury excuses the consent requirement. If the Spouse is not legally competent to give consent, the Spouse’s legal guardian may give consent. A valid election made by the Participant may be revoked by the Participant in the manner required by the Administrator without the consent of the Spouse at any time. Any new election must comply with the requirements of this Section 7.8 . A consent by a former Spouse will not be applicable to a new Spouse.

 

  (c) Presumed Designation of Beneficiary. If there is no Beneficiary designated, no Beneficiary living at the time of a Participant’s Death, or if a non-Spouse Beneficiary disclaims any benefit under the Plan in the manner required by the Administrator, the Spouse is the Beneficiary. If there is no Spouse, or if the Spouse disclaims any benefit under the Plan, the Beneficiary is, in the following order of priority; provided, however, that with respect to (1) and (2), such individuals are then living: (1) the Participant’s children (including adopted children), in equal shares by right of representation (one share for each surviving child and one share for each child who predeceases the Participant with living descendants); (2) the Participant’s surviving parents, in equal shares; and (3) the Participant’s estate. The Administrator’s determination of the persons who qualify as Beneficiaries under this Plan will be binding on all interested parties.

 

  (d) Effect of Dissolution of Marriage. Dissolution of marriage terminates the Participant’s Beneficiary designation, or presumed designation, of the Participant’s former Spouse as the Participant’s Beneficiary.

 

  (1)

If, prior to payment of benefits upon the Participant’s Death, documentation of the Participant’s dissolution of marriage, as issued by a court of competent jurisdiction, is received and accepted by the Administrator, the Participant’s former Spouse will be deemed to have predeceased the Participant, and no heirs or other Beneficiaries of the Participant’s former Spouse will receive benefits as a Beneficiary,

 

 

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  unless such heirs are specifically designated in the Participant’s Beneficiary designation under the Plan.

 

  (2) Section 7.8(d)(1) will not apply if, prior to distribution of the vested portion of the Participant’s Accounts, either of the following occurs:

 

  (A) The Participant completes a properly completed Beneficiary designation in the manner required by the Administrator, dated after the date of the dissolution of marriage that designates the Participant’s former Spouse as a Beneficiary.

 

  (B) The Plan receives a Qualified Domestic Relations Order, as defined in Section 7.10 , directing that the Participant’s former Spouse be treated as the Participant’s Spouse under the Plan.

Any such payment will be a distribution for the account of such Participant and the Participant’s Beneficiary and will, to the extent thereof, be a complete discharge of any liability under the Plan to the Participant’s estate or any beneficiary. In the event of a dispute with respect to the determination of Beneficiaries as a result of the operation of this Section 7.8(d) , the Administrator may solicit a court of competent jurisdiction for a determination of a rightful beneficiary. If such request is made to a court, the Trustee will retain within the Plan or transfer to the court any portion of the Participant’s Accounts in dispute until the rendering of a final determination by the court. The decision of the Administrator will be final and binding on all interested parties, and the Administrator will be under no duty to investigate further the intent of the Participant with respect to the designation of any Beneficiary.

 

  (e) Governing Designation. The Beneficiary designation that the Participant completes and submits under the Plan will apply with respect to all Accounts under the Plan maintained on behalf of the Participant. Each proper Beneficiary designation effectively revokes all prior Beneficiary designations made by the same Participant. No successor Beneficiary designations made by a Beneficiary will be recognized under the Plan.

 

  (f) Slayers. Notwithstanding anything in the Plan to the contrary, in the event that the death of the Participant or any Beneficiary is the result of the criminal act involving any other Beneficiary, such Beneficiary convicted of such criminal act will not be entitled to receive any undistributed amounts credited to Participant’s Account.

 

7.9

R OLLOVER OF P LAN D ISTRIBUTIONS . Notwithstanding any provision of the Plan to the contrary that would limit a Distributee’s election under this Section 7.9 , a Distributee may elect to have all or any portion of an Eligible Rollover Distribution paid directly to an Eligible Retirement Plan specified by the Distributee. The election regarding a direct rollover will be made at the time and in the manner prescribed by the Administrator. The Administrator may restrict such direct

 

 

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  rollovers to a minimum amount, as determined by the Administrator in a uniform and nondiscriminatory manner. For purposes of this Section 7.9 only:

 

  (a) Distributee means a Participant, former Participant, a Beneficiary of a Participant or former Participant, or an “alternate payee” as defined under Code Section 414(p).

 

  (b) Eligible Rollover Distribution means any distribution of all or any portion of the balance to the credit of the Distributee. However, an Eligible Rollover Distribution does not include: (1) any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the Distributee or the joint lives (or joint life expectancies) of the Distributee and the Distributee’s Beneficiary; (2) any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for a specified period of ten years or more; (3) any distribution to the extent the distribution is required under Code Section 401(a)(9); (4) any portion of any distribution that is not includible in gross income, as determined without regard to the exclusion for net unrealized appreciation of employer securities (except relating to designated Roth contributions); (5) any amount that is distributed on account of hardship; (6) corrective distributions; (7) Participant loans; and (8) permissible withdrawals under Code Section 414(w).

 

  (c) Eligible Retirement Plan means: (1) an individual retirement account described in Code Section 408(a); (2) an individual retirement annuity described in Code Section 408(b); (3) an individual retirement plan described in Code Section 408A (for amounts that are designated Roth contributions); (4) an annuity plan described in Code Section 403(a); (5) a qualified trust described in Code Section 401(a); (6) an annuity contract described in Code Section 403(b) and (7) an eligible plan under Code Section 457(b) that is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state and which agrees to separately account for amounts transferred into such plan from the Plan. For a Distributee who is a non-Spouse Beneficiary, Eligible Retirement Plan means only an arrangement described in item (1), (2), or (3) that is treated as an inherited IRA pursuant to Code Section 402(c)(11). With respect to distribution of amounts that are designated Roth contributions, an Eligible Retirement Plan means only an otherwise permitted plan that also provides for Roth contributions and agrees to separately account for amounts rolled over, including separately accounting for the portion of the distribution that is includible in gross income and the portion of the distribution that is not includible in the distribution.

 

7.10

Q UALIFIED D OMESTIC R ELATIONS O RDERS . All rights and benefits, including elections, provided to a Participant in this Plan will be subject to the rights afforded to any “alternate payee” under a “qualified domestic relations order” (QDRO) as

 

 

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  those terms are defined in Code Section 414(p), provided, however, that such order meets the requirements of Code
Section 414(p).

 

  (a) Determination of Qualification. The Administrator will establish reasonable written procedures to determine the qualified status of domestic relations orders and to administer distributions made thereunder in a manner consistent with the requirements of Code Section 414(p).

 

  (b) Immediate Distribution. Notwithstanding any provision of this Plan to the contrary, the distribution of all or the portion of a Participant’s vested Account that is assigned to an alternate payee under a QDRO will commence as soon as administratively practicable after the later of the following dates: (1) the date on which the Administrator determines that the domestic relations order pertaining to the alternate payee is a QDRO, or (2) the date specified in the QDRO; provided, however, that if the amount of the Participant’s vested Account to be distributed to the alternate payee exceeds the Cash-Out Limit, the Administrator will not, without the prior written consent of the alternate payee, commence the distribution of the amount to be distributed to the alternate payee prior to the Participant’s “earliest retirement age” as that term is defined in Code Section 414(p)(4).

 

  (c) Fees or Expenses. Fees or expenses incurred by the Plan in the course of determining whether a domestic relations order is a QDRO and in the administration of distributions made pursuant to a QDRO will be allocated to the Account of the Participant prior to segregation of any portion of the benefits on behalf of the alternate payee, and will be applied proportionately to the benefits allocated between the Participant and the alternate payee unless the QDRO provides for a different application.

Distributions made pursuant to this Section 7.10 will completely discharge the Plan of its obligations with respect to the Participant and each alternate payee to the extent of any such distributions.

*  *  *  *   End of Article 7   *  *  *  *

 

 

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ARTICLE 8.

LOANS; HARDSHIP AND IN-SERVICE WITHDRAWALS

 

8.1 P ARTICIPANT L OANS . The Administrator may adopt a loan policy pursuant to which a Participant may request a loan and the Trustee may make such a loan. Any loan policy must comply with the loan provisions of Code Sections 72(p) and 4975(d)(1). Loans are not available from the Transfer Account.

 

8.2 I N - SERVICE W ITHDRAWALS . Except as otherwise provided in Schedule C , a Participant may request an in-service withdrawal as provided in this Section 8.2 . A Participant’s request for an in-service withdrawal must be filed in the manner required by the Administrator. The Administrator will thereafter notify the Trustee of the total dollar amount to be withdrawn, and the Trustee will disburse the withdrawn amount, less any required tax withholding amount, directly to the Participant as soon as administratively feasible following receipt of such notice.

 

  (a) Age 59  1 2 Withdrawal. In accordance with the administrative rules and procedures as will be adopted by the Administrator, a Participant who has attained age 59  1 2 and who is then employed by the Employer is permitted to withdraw all or a portion of the Participant’s vested Account (other than the Participant’s Transfer Account).

 

  (b) Withdrawal from Rollover Account. In accordance with the administrative rules and procedures as will be adopted by the Administrator, a Participant who is employed by the Employer is permitted to withdraw all or a portion of the Participant’s Rollover Account.

 

  (c) Transfer Account. Notwithstanding Section 8.2(a) , a Participant may only take an in-service withdrawal of his or her Transfer Account if the Participant has attained Normal Retirement Age. In accordance with the administrative rules and procedures as will be adopted by the Administrator, a Participant who has attained Normal Retirement Age and who is then employed by the Employer is permitted to withdraw all or a portion of the Participant’s vested Transfer Account.

 

 

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8.3 H ARDSHIP W ITHDRAWALS . In accordance with the limitations of this Section 8.3 and such other rules and restrictions imposed by the Administrator, prior to a Participant’s attainment of age 59  1 2 , a Participant will be permitted to withdraw for reasons of hardship all or a portion of the Participant’s previously undistributed Deferral Account (other than the portion of the Account attributable to earnings on Deferral Contributions credited after December 31, 1988 or the portion of the Account used as security for a Plan loan) if the withdrawal is made on account of an immediate and heavy financial need of the Participant and the distribution is necessary to satisfy that financial need. The Administrator will direct the Trustee to make the hardship distribution as soon as administratively practicable after the Participant makes a valid request for the hardship withdrawal in the manner required by the Administrator.

 

  (a) Immediate and Heavy Financial Need. A distribution will be deemed to be necessary to satisfy the immediate and heavy financial need of the Participant only if the distribution is made on account of any one of the following:

 

  (1) expenses for medical care, or to obtain such medical care, for the Participant, the Participant’s Spouse, the Participant’s dependents (as defined in Code Section 152, without regard to Code Sections 152(b)(1), (b)(2) and (d)(1)(B)), or the Participant’s Beneficiary that would be deductible under Code Section 213(d) (determined without regard to whether the expenses exceed 7.5% of adjusted gross income);

 

  (2) payments for tuition, related educational fees and room and board expenses, for the next 12 months of post-secondary education for the Participant, the Participant’s Spouse, children, dependents (as defined in Code Section 152, without regard to Code Sections 152(b)(1), (b)(2) and (d)(1)(B)), or Beneficiary;

 

  (3) costs directly related to the purchase (excluding mortgage payments) of a principal residence for the Participant;

 

  (4) payments needed to prevent either the eviction of the Participant from the Participant’s principal residence or the foreclosure on the mortgage of the Participant’s principal residence;

 

  (5) payments for burial or funeral expenses of the Participant’s deceased parent, Spouse, children, dependents (as defined in Code Section 152, without regard to Code Section 152(d)(1)(B)), or Beneficiary;

 

  (6) expenses for the repair of damage to the Participant’s principal residence that would qualify for the casualty deduction under Code Section 165 (determined without regard to whether the loss exceeds 10% of adjusted gross income); or

 

 

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  (7) such other reasons as deemed by the Regulations to satisfy an immediate and heavy financial need of the Participant under the “safe harbor” standard.

 

  (b) Satisfaction of Need. Any hardship withdrawal from the Plan will be deemed to meet the requirement that the distribution is necessary to satisfy that financial need if:

 

  (1) the amount of the hardship withdrawal does not exceed the amount of the immediate and heavy financial need of the Participant (including any amounts necessary to pay any federal, state or local income taxes or penalties reasonably anticipated to result from the distribution);

 

  (2) the Participant obtains all distributions (other than the hardship withdrawal) and all nontaxable loans available under all plans of the Employer before receiving a hardship withdrawal; and

 

  (3) the Participant’s Deferral Contributions and any other employee contributions to all deferred compensation plans of the Employer are suspended for six months following the date the Participant receives the hardship withdrawal and requires an affirmative Participant election in order to be reinstated thereafter.

*  *  *  *   End of Article 8   *  *  *  *

 

 

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ARTICLE 9.

APPLICATION FOR BENEFITS

 

9.1 A PPLYING F OR B ENEFITS . A Participant may request a distribution by submitting a properly completed Application for Benefits. The Administrator will establish such additional rules and procedures that it determines to be necessary or appropriate for the proper payment of Plan benefits.

 

9.2 D ENIAL OF B ENEFITS . The following claims procedures are generally applicable to claims filed under the Plan. To the extent required by law and to the extent the Administrator is ruling on a claim for benefits on account of a Disability, the Plan will follow, with respect to that claim, claims procedures required by law for plans providing disability benefits.

 

  (a) General Procedures.

 

  (1) Filing a Claim . All claims must be filed in writing by the Participant, Beneficiary or the authorized representative of the claimant (any of these, the “claimant”) by completing the procedures that the Administrator requires. The procedures will be reasonable and may include the completion of forms and the submission of documents and additional information. For purposes of this Section 9.2, a request for a Plan loan or an in-service withdrawal will be considered a claim.

 

  (2) Review of Claim . The Administrator will review all materials and decide whether to approve or deny the claim. If a claim is denied in whole or in part, the Administrator will provide written notice of denial to the claimant within a reasonable period of time no later than 90 days after the Administrator receives the claim, unless special circumstances require an extension of time for processing the claim. If an extension is required, the Administrator will notify the claimant in writing before the end of the 90-day period and indicate the special circumstances requiring an extension of time and the date by which the Administrator expects to render a decision on the claim. The extension will not exceed an additional 90 days. The notice of denial must be written in a manner calculated to be understood by the claimant and must include the following:

 

  (A) the specific reason(s) for the adverse determination;

 

  (B) specific references to pertinent Plan provisions on which the adverse determination is based;

 

  (C) a description of any additional material or information necessary for the claimant to perfect his or her claim and the reason why such material or information is necessary; and

 

 

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  (D) a description of the Plan’s review procedures and time limits applicable to such procedures, including a statement of the claimant’s right to bring a civil action under ERISA Section 502(a) following an adverse determination on review.

 

  (3) Appeal Process . If the claimant wishes a review of the denied claim, the claimant will be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant to the claimant’s claim for benefits. The claimant may submit to the Administrator in writing any issues, documents, records, comments or other information the claimant may have regarding his or her claim for benefits under the Plan. Such request for an appeal must be made by the claimant in writing within 60 days after receipt of notice that the claim has been denied by the Administrator.

 

       A document, record or other information will be considered “relevant” to a claim if such document, record or other information (A) was relied upon in making the benefit determination, (B) was submitted, considered or generated in the course of making the benefit determination, without regard to whether such document, record or other information was relied upon in making the benefit determination, or (C) demonstrates compliance with the administrative processes and safeguards required pursuant to ensure and to verify that benefit claim determinations are made in accordance with the Plan and that, where appropriate, the Plan provisions have been applied consistently with respect to similarly situated claimants.

 

  (4) Review of Appeal . The Administrator will make its decision on review solely on the basis of the written record, including documents and written materials submitted by the claimant. The Administrator will make a decision on the review within a reasonable period of time, not later than 60 days after the Administrator receives the claimant’s written request for review unless special circumstances require additional time for review of the claim. If an extension is required, the Administrator will notify the claimant in writing before the end of the 60-day period and indicate the special circumstances requiring an extension of time and the date by which the Administrator expects to render a decision on the claim. The extension will not exceed an additional 60 days. The decision on review will be written in a manner calculated to be understood by the claimant. If the claim is denied, the written notice will include the following:

 

  (A) the specific reason(s) for the adverse determination;

 

  (B) specific references to pertinent Plan provisions on which the adverse determination is based;

 

 

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  (C) a statement that the claimant will be entitled, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant to the claimant’s claim for benefits (as “relevant” is defined in this Section 9.2 ); and

 

  (D) a statement of the claimant’s right to bring a civil action under ERISA Section 502(a).

 

  (b) Administrator’s Full Discretion. The Administrator and its designated claims administrator and appeals administrator, if any, have full discretion and power to decide all claims and reviews of denied claims, including determining eligibility, status and the rights of all individuals under the Plan and construing any and all terms of the Plan. Following the approval of a claim for benefits, the Administrator has the authority to construe and administer the Plan in a manner that is consistent with the payment of benefits in accordance with the approved claim.

 

  (c) Electronic Notification. Any notification from the Administrator, claims administrator or appeals administrator to the claimant under this Section 9.2 may be made electronically, provided that such notification complies with Department of Labor Regulation Sections 2520.104b-1(c)(1)(i), (iii), and (iv).

 

9.3 E XHAUSTION OF R EMEDIES ; L IMITATION OF A CTIONS . In the event of any dispute over benefits under this Plan, all remedies available to the disputing individual under this Article 9 must be exhausted before legal recourse of any type is sought. No legal action at law or in equity may be filed against the Plan, the Sponsor, any Participating Employer, the Administrator or its delegate relating to any dispute over benefits under this Plan more than 180 days after the date of the Administrator’s (or its delegate’s) final determination under the claims review process described in this Article 9.

*  *  *  *   End of Article 9   *  *  *  *

 

 

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ARTICLE 10.

ADMINISTRATION OF THE PLAN

 

10.1 A DMINISTRATOR . The Administrator will supervise and administer the operation of this Plan and has all powers necessary to accomplish that purpose, including the power to make rules and regulations pertaining to the administration of this Plan. The Sponsor has designated the U.S. Benefit Plans Administration Committee (the “Committee”) to act as the Administrator. Any member of the Committee may resign by delivering written notice to the Sponsor. Until such time as the Sponsor has appointed the members of the Committee, or in the event that all Committee members have resigned, the Sponsor will serve as the Administrator. An Employee will be deemed to have resigned as Administrator or as a member of the Administrator upon separation from service with the Employer. Vacancies due to resignation, death, removal, or other causes will be filled by the Sponsor. The Sponsor is entitled to remove the Administrator at any time, with or without cause.

 

10.2 O RGANIZATION AND P ROCEDURES . The Committee is established and organized in accordance with its mandate or charter and must follow such procedures as outlined in the mandate or charter.

 

10.3 P OWERS AND D UTIES . The Committee administers the Plan in accordance with its terms, and has all powers necessary to carry out the provisions of the Plan not otherwise reserved to the Sponsor or the Trustee. Not in limitation, but in amplification of the powers and duties specified in this Plan, and in accordance with its mandate or charter, the Committee has the power and duty, in the Committee’s full and complete discretion, to:

 

  (a) Appoint subcommittees with such powers, whether discretionary or otherwise, as the Committee determines, consistent with the terms of the Plan.

 

  (b) Authorize or delegate its authority to one or more members of the Committee, an employee or any agent to execute or delivery any instrument or make any payment on behalf of the Committee.

 

  (c)

Interpret the provisions of the Plan in the Committee’s total and complete discretion. The Committee will be the sole judge of the standard of proof required in any case and the application and interpretation of the Plan, and decisions of the Committee are final and binding on all parties. All questions or controversies of whatsoever character arising in any manner or between any parties or persons in connection with the Plan or its operation, whether as to any claim or appeal for benefits as to the construction of the language of the Plan or any rules and regulations adopted by the Committee, or as to any writing, decision, instrument or account in connection with the operation of the Plan, will be submitted to the Committee for decision. Any decision by the Committee on appeal of a denied claim is binding on all persons dealing with the Plan or claiming any benefit hereunder, except to the extent

 

 

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  such decision may be determined to be arbitrary or capricious by a court having jurisdiction over such matter.

 

  (d) Develop and maintain an investment policy for the purposes of the following: defining and assigning the responsibilities of all involved parties; establishing and communicating to all involved parties the objectives for establishing an investment program suitable to the long-term goals and investment objectives of the Plan; formulating policies for selecting investment management and investment accounts within the investment program; and establishing objectives for prudently monitoring and evaluating the performance of the investment program.

 

  (e) Adopt and enforce the rules and procedures and to designate the manner for Participants to make elections, all as are necessary for the operation and administration of the Plan and consistent with its provisions. When designating procedures, the Committee will consider all of the substantive legal requirements, such as requirements that an election be “in writing,” and will designate procedures reasonably calculated to satisfy such requirements. (f) Determine all questions relating to eligibility, benefits and other rights of employees, Participants and beneficiaries under the Plan.

 

  (g) Keep all records necessary for the operation and administration of the Plan, to the extent such records are not kept by the Trustee, or to require its delegates or designates to keep records with respect to the authorities and responsibilities delegated to such.

 

  (h) To cause the Plan to be in compliance with all reporting and disclosure obligations under Part 1 of Title I of ERISA.

 

  (i) To perform due diligence as necessary and appropriate with respect to transactions involving the Plan.

 

  (j) To appoint one or more persons or entities to be investment managers (as defined in Section 3(3)) of ERISA) with respect to part or all of the Trust Fund, by notifying the Trustee in writing of the appointment of any such investment manager and of the part of the Trust Fund which the investment manager will manage, and to remove an investment manager at any time, for any reason, by written notice to the investment manager and the Trustee.

 

  (k) Delegate or employ agents, advisers and counsel (who may also be persons employed by the Employer), direct them to exercise the powers of the Committee and monitor their continued performance and, as the Committee deems appropriate, terminate the services of such agents, advisers and counsel.

 

10.4

C ONSULTATION WITH A GENTS . The Administrator has the right to employ such agents, clerical, accounting and other services, and such lawyers and accountants as

 

 

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  may be necessary for the purpose of administering the Plan. The Administrator has the right to employ the Trustee to perform recordkeeping and such other services on behalf of the Plan. Such costs may be paid for out of the assets of the Plan and will in such case constitute an operating expense of the Plan.

 

10.5 F INALITY OF A CTION . All acts and determinations of the Administrator are binding and conclusive upon Participants, Beneficiaries, Employees, and the Trustee. The Employer may deem its records conclusively to be correct as to the matters reflected therein with respect to information furnished by an Employee.

 

10.6 I NDEMNIFICATION . To the extent permitted by ERISA, the Employer agrees to indemnify and defend to the fullest extent permitted by law all persons who are, were, or may be employees of the Employer or members of the Committee, subject to the provisions of the Committee’s mandate or charter and any separate applicable indemnification agreement.

 

10.7 P AYMENT OF P LAN E XPENSES .

 

  (a) General Rule . No employee will be compensated for services performed in connection with the administration of the Plan. However, all reasonable expenses of employees incurred in connection with the administration of the Plan will be paid from the Trust Fund unless otherwise paid by the Employer. Until otherwise paid, the Trust Fund will at all times be liable for the payment of all administrative expenses, and the election of the Employer to pay any such expense will not be construed as creating any such liability on the part of the Employer.

 

  (b) Charges to Participant Accounts . The Administrator may, except as prohibited by applicable law, charge a Participant’s Account for any reasonable Plan expenses directly related to that Account, including, but not limited to the following categories of fees or expenses: distribution, loan, acceptance of rollover, QDRO, “lost participant” search, account maintenance, brokerage accounts investment management and benefit calculations. The Administrator may charge a Participant’s Account for the reasonable expenses incurred in connection with the maintenance of or a distribution from that Account even if the charging of such expenses would result in the elimination of the Participant’s Account or in the Participant’s not receiving an actual distribution. However, if the actual Account expenses exceed the Participant’s Account balance, the Administrator will not charge the Participant outside of the Plan for such excess expenses. The Administrator may charge reasonable Plan expenses to the Accounts of Participants who are no longer employed with the Employer, even if the Administrator does not charge Plan expenses to the Accounts of Participants who are currently employed with the Employer, provided it is done in a uniform and nondiscriminatory manner.

*  *  *  *   End of Article 10    *  *  *  *

 

 

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ARTICLE 11.

THE TRUST FUND

 

11.1 T HE T RUSTEE . The Sponsor will select a Trustee to hold, invest and distribute any assets of the Plan which are held in the Trust Fund in accordance with the terms of the Trust Agreement which will be executed by the Sponsor and the Trustee under such terms and conditions, not in contravention of the provisions of this Plan, as the Sponsor and Trustee may elect. The fiduciary responsibilities of the Trustee will be as set forth in the Trust Agreement entered into by and between the Sponsor and the Trustee. The Sponsor from time to time may change the Trustee and the Trust Agreement, provided that no amendment which affects the duties or responsibilities of the Trustee will be effective without the consent of the Trustee.

 

11.2 T HE T RUST F UND . The Trust Fund will be used only to pay benefits as provided in the Plan and such other payments as directed by the Administrator. All reasonable and necessary expenses incurred in the administration of the Plan and Trust Fund will be paid from the Trust Fund to the extent that such costs and expenses are not paid by the Employer.

 

11.3 R EVERSION OF A SSETS . Except as provided by the terms of this Section 11.3 , no assets of the Trust Fund will ever revert to, or be used or enjoyed by, the Employer or any successor of the Employer, nor will any such funds or assets ever be used other than for the benefit of Participants or Beneficiaries. Exceptions are as follows:

 

  (a) Mistake of Fact. In the event the Administrator determines that the Employer has contributed any amount under Article 3 to the Trustee by mistake of fact, the Administrator will direct the Trustee in writing to return to the Employer, within one year after the payment of the contribution, the lesser of the amount actually contributed by such mistake of fact or its then current value.

 

  (b) Deductibility. All contributions hereunder are made on the condition that they are deductible under Code Section 404. If the Internal Revenue Service determines that any portion of the Employer’s contributions under Article 3 for a Plan Year is not deductible, to the extent that the deduction is disallowed, the Administrator will direct the Trustee to return the lesser of such amount or its then current value to the Employer within one year following the disallowance of the deduction.

 

  (c) Termination. Upon termination of the Plan after satisfaction of all fixed and contingent liabilities or obligations to persons entitled to benefits upon termination of the Plan, any fund or property remaining in the Trust Fund will revert to the Employer, provided such reversion does not contravene any provision of law.

*  *  *  *   End of Article 11    *  *  *  *

 

 

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ARTICLE 12.

PLAN FIDUCIARIES

 

12.1 F IDUCIARIES . The named fiduciary with respect to the Plan and Trust Agreement will be the Administrator. The Trustee will be a Plan fiduciary with respect to the Plan and Trust Agreement to the extent the Trustee exercises discretionary authority, responsibility or control with respect to management of the Plan or Plan assets or administration of the Plan. Any Investment Manager will be a Plan fiduciary with respect to the Plan and Trust Agreement, but will not be a named fiduciary. The fiduciaries of this Plan and Trust Agreement will have only those powers, duties, responsibilities and obligations as are specifically provided for by the Plan and Trust Agreement.

 

12.2 F IDUCIARY R ESPONSIBILITIES .

 

  (a) Administrator. The Administrator has responsibility and authority to control the operation and administration of the Plan and as further set forth in Article 12 .

 

  (b) Trustee. The Trustee will hold the assets of the Trust Fund in trust and will be responsible for all functions specifically assigned to it by the Plan and Trust Agreement. The Trustee has exclusive responsibility for the management and control of that portion, if any, of the Trust Fund which is not made subject to the management and control of an Investment Manager, a Participant or the Administrator. The Trustee has no other responsibilities unless otherwise provided in the Trust Agreement. To the extent that the Trust Fund or any portion thereof is subject to the management and control of an Investment Manager or the Administrator, the Trustee (1) will not have exclusive management and control over the Trust Fund, (2) will not invest or otherwise manage and control that portion of the Trust Fund, and (3) will take investment action only upon the instructions of such Investment Manager or the Administrator properly given as herein provided. Purchase and sale orders may be placed by such Investment Manager directly with brokers and dealers without the intervention of the Trustee and, in such event, the Trustee’s sole obligation will be to make payment for purchased securities and deliver those that have been sold when advised of the transaction. The Trustee has no liability to any person for any action taken or omitted in accordance with any directions given by such Investment Manager herein, or for the failure of such Investment Manager to give such directions.

 

  (c) Sponsor. The Sponsor will be responsible for all functions assigned or reserved to it under the Plan and Trust Agreement. Any authority so assigned or reserved to the Sponsor will be exercised by resolution of its duly authorized governing body, and will become effective with respect to the Trustee only with its consent and upon written notice to the Trustee. By way of illustration, and not by limitation, the Sponsor will have authority and

 

 

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  responsibility for (1) the designation of named fiduciaries, (2) the appointment, removal and replacement of the Trustee, and (3) the exercise of all fiduciary functions provided in the Plan and Trust Agreement or necessary to the operation of the Plan, except such functions as are assigned to other named fiduciaries or to an Investment Manager. Not as Plan fiduciary, but rather as “settlor” of the Plan, by way of illustration, and not by limitation, the Sponsor will have authority and responsibility for the design of the Plan, the qualification under applicable law of the Plan and Trust Agreement, and any amendments thereto, and the funding of the Plan with respect to its Employees.

This Section 12.2 is intended to allocate to each fiduciary the individual responsibility for the prudent execution of the functions assigned to it, and none of such responsibilities or any other responsibilities will be shared by two or more of such fiduciaries unless such sharing is provided by a specific provision of the Plan and Trust Agreement. Whenever one fiduciary is required to follow the directions of another fiduciary, the two fiduciaries will not be deemed to have been assigned a shared responsibility, but the responsibility of the fiduciary giving the directions will be deemed the fiduciary’s sole responsibility, and the responsibility of the fiduciary receiving those directions will be to follow them insofar as such instructions are on their face proper under applicable law. A fiduciary may employ one or more persons to render advice concerning responsibility such fiduciary has been allocated under the Plan and Trust Agreement. To the extent that fiduciary responsibilities are so allocated to an Investment Manager, such responsibilities are so allocated solely to such Investment Manager alone, to be exercised by such Investment Manager alone and not in conjunction with any fiduciary, and the Trustee is under no obligation to manage any asset of the Trust Fund that is subject to the management of such Investment Manager.

 

12.3 I NVESTMENT M ANAGERS . The Administrator may appoint a qualified Investment Manager to manage any portion or all of the assets of the Trust Fund. For the purpose of this Plan and Trust Agreement, a qualified Investment Manager means an individual, firm or corporation that has been so appointed to serve as Investment Manager hereunder and that is and has acknowledged in writing that it is (a) a fiduciary with respect to the Plan, (b) bonded as required by ERISA, and (c) is registered as an investment adviser under the Investment Advisers Act of 1940, but excluding any investment adviser described in ERISA Section 3(38)(B)(ii), or an investment adviser described in ERISA Section 3(38)(B)(ii), or a bank as defined in the Investment Advisers Act of 1940, or an insurance company qualified to manage or dispose of assets of pension plans and licensed to conduct business in more than one state. Any Investment Manager so appointed will have sole responsibility for the investment of the portion of the Trust Fund to be managed and controlled by such Investment Manager.

*  *  *  *   End of Article 12    *  *  *  *

 

 

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ARTICLE 13.

AMENDMENT, TERMINATION AND MERGER

 

13.1 P LAN A MENDMENT .

 

  (a) Power to Amend. The Sponsor may amend the Plan at any time and from time to time. In addition, the Committee may amend the Plan at any time and from time to time if such amendment is for any necessary or appropriate clerical changes to Plan documentation, or to add new Participating Employers to the Plan under Section 15.4 . The attached Schedules to the Plan may be updated without formal amendment. Any amendment may be made retroactively effective to the extent permitted by applicable law.

 

  (b) Limitation to Scope of Amendments. Except to the extent required to qualify this Plan and the Trust Agreement under Code Sections 401(a) and 501, or as a condition of continued qualification thereunder, no amendment will be made which would have any of the following effects:

 

  (1) deprive any Participant or Beneficiary of the right to receive any benefits attributable to service before the amendment to which such individual may be entitled; or

 

  (2) except as provided in Article 11 , permit any part of the Trust Fund to revert to the Employer or permit any part of the Trust Fund, other than such part as may be required to pay taxes or administration expenses, to be used for or diverted for any purpose other than the exclusive benefit of Participants or their Beneficiaries.

 

13.2 V ESTING A MENDMENTS . In the event the Sponsor adopts an amendment changing the vesting schedule described in the Plan, or any other amendment that directly or indirectly affects the computation of a Participant’s vested Account, any Participant who has completed at least three Years of Service may elect to have the Participant’s vested Account determined in accordance with the vesting schedule in effect immediately prior to the effective date of the amendment. Notwithstanding the preceding sentence, no election need be provided for any Participant whose vested Account under the Plan, as amended, at any time cannot be less than such Account determined without regard to such amendment. Such election must be in writing and be filed with the Administrator by the latest of (a) 60 days after the amendment is adopted, (b) 60 days after the amendment becomes effective, or (c) 60 days after written notice of the amendment is issued to the Participant by the Administrator. The Participant must have completed the required three Years of Service by the latest date on which an election may be filed hereunder. Notwithstanding anything in the Plan to the contrary, the vested portion of a Participant’s Accounts will be at least equal to the portion the Participant would have been entitled had the Participant ceased to be an Employee immediately prior to the date such amendment is adopted or the effective date of such amendment, whichever is later.

 

 

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13.3 P LAN T ERMINATION .

 

  (a) Sponsor Rights. Although the Sponsor expects to continue the Plan and the contributions to the Trust Fund indefinitely, the Sponsor may terminate the Plan and all further contributions to the Trust Fund for any reason and at any time.

 

  (b) No Liability for Future Contributions. Although each contributing Employer expects to continue the Plan and the contributions to the Trust Fund indefinitely, the Employer may, with respect to its Employees, terminate the Plan and all further contributions to the Trust Fund for any reason and at any time. The liability of the Employer to contribute to the Trust Fund will automatically terminate upon its being legally dissolved. Any such termination of the Plan by a contributing Employer will not affect the continuation of the Plan by any other contributing Employer.

 

  (c) Partial Termination, Vesting. In the event of the partial termination of the Plan, the rights of each Participant affected by such termination to the amounts credited to the Participant’s Account as of the date of such termination will be vested. Such amounts will be distributed in accordance with the provisions of this Plan.

 

  (d) Trust Fund, Vesting and Distribution. Upon the termination of the Plan or the complete discontinuance of contributions to the Trust Fund, the Administrator will notify the Trustee of such event in writing. The Trust Fund will continue until all funds are distributed in accordance with the terms of the Plan. All provisions of the Plan and Trust Agreement will remain in force, other than the provisions relating to Employer contributions, until all funds are distributed from the Trust Fund. Each affected Participant will be fully vested in the Participant’s Account as of the date of such termination or discontinuance. Anything herein to the contrary notwithstanding, the Trustee and the Administrator may, at any time after the Plan has been completely terminated, terminate the Trust Fund. Upon termination of the Trust Fund, the amount credited to the Account of each Participant and Beneficiary will be distributed to the individual absolutely and free of trust or transferred to another plan maintained by the Employer’s Affiliated Group.

 

  (e) Allocation of Suspense Account. Any funds held in the Suspense Account at the time of the termination of the Plan or discontinuance of contributions will be allocated among the Participants for whom an Account is being held in the manner set forth in Section 5.3 to the extent such allocation does not exceed the limits of Article 6 .

 

  (f)

Trustee Fees. The Trustee’s fees and expenses of administering the Trust Fund and other expenses incident to the termination and distribution of the Trust Fund incurred after the termination of this Plan and the Trust

 

 

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  Agreement will be paid from the Trust Fund unless otherwise paid by the Employer. Until otherwise paid, the Trust Fund will at all times remain solely liable for the payment of all fees and expenses incident to the termination.

 

13.4 P LAN MERGER OR T RANSFER OF A SSETS .

 

  (a) Transfer of Assets. This Plan will not be merged into, or consolidated with, nor will any assets or liabilities be transferred to, any pension or retirement plan under circumstances resulting in a transfer of assets or liabilities from this Plan to any other plan unless immediately after any such merger, consolidation or transfer each Participant would (if the Plan then terminated) receive a benefit after the merger, consolidation or transfer that would be equal to or greater than the benefit the Participant would have been entitled to receive immediately before such merger, consolidation or transfer (if the Plan had then terminated). Subject to the foregoing and the applicable requirements of Code Section 411(d)(6), the Administrator may, in its discretion, direct the Trustee to (1) transfer all or a specified portion of the Trust Fund to any other trust forming part of another qualified plan, or (2) accept a transfer to the Trust Fund of all or a specified portion of the assets of a trust forming part of another qualified plan. Any transfer of assets to another trust will be in complete satisfaction of all liabilities relating to the amounts so transferred.

 

  (b) Distributions. Subject to an election by the Administrator to transfer the Accounts of any affected Participant to another trust forming part of a qualified plan as provided in Section 13.4(a) , the Administrator may, in its discretion, permit in a uniform and nondiscriminatory manner the Accounts of affected Participants to be distributed, with the Participant’s consent as provided in Article 7 , in a lump sum in connection with a corporate transaction that results in the Participant’s “severance from employment” as permitted in accordance with Code Section 401(k).

*  *  *  *   End of Article 13    *  *  *  *

 

 

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ARTICLE 14.

TOP HEAVY PROVISIONS

 

14.1 T OP -H EAVY D EFINITIONS . For purposes of this Article 14 , the following terms have the following meanings.

 

  (a) Determination Date means the last day of the preceding Plan Year or, in the case of the first Plan Year, the last day of such Plan Year.

 

  (b) Key Employee means any Participant who, at any time during the Plan Year, has been (1) an officer of the Employer having Testing Compensation greater than 50% of the amount in effect under Code Section 415(b)(1)(A); (2) a 5% owner of the Employer; or (3) a 1% owner of the Employer having Testing Compensation from the Employer of more than $150,000 without application of the Code Section 401(a)(17) limitation. The determination of who is a Key Employee will be made in accordance with Code Section 416(i)(1) and related Regulations. No more than 50 Employees, or, if lesser, the greater of three Employees or 10% of the Employees, will be treated as officers.

 

  (c) Non-Key Employee means any Participant who is an Employee on the last day of the Plan Year and who is not a Key Employee, regardless of the Hours of Service or Compensation earned by such Employee during the Plan Year.

 

  (d) Permissive Aggregation Group means the Required Aggregation Group combined with any other plan maintained by the Employer, provided that the resulting combination group would continue to satisfy the requirements of Code Sections 401(a)(4) and 410 once such other plan is taken into account. The Administrator will determine which plan or plans maintained by the Employer will be taken into account in determining the Permissive Aggregation Group.

 

  (e) Required Aggregation Group means (1) each plan of the Employer in which a Key Employee is a participant, and (2) each other plan of the Employer that enables any plan described in clause (1) to meet the requirements of Code Section 401(a)(4) or 410.

 

14.2 D ETERMINATION OF T OP -H EAVY S TATUS .

 

  (a) Top-Heavy Plan Determination. This Plan will be deemed to be a “Top-Heavy Plan” within the meaning of Code Section 416(g) if, as of the Determination Date, the top-heavy determination percentage determined under Section 14.2(b) exceeds 60%. This Plan will not be considered a Top-Heavy Plan for any Plan Year in which the Plan is part of a Required or Permissive Aggregation Group that is not a Top-Heavy Plan.

 

  (b)

Top-Heavy Determination Percentage. The top-heavy determination percentage will be derived as of the Determination Date by dividing (1) the sum of the Accounts of Key Employees under this Plan (plus the aggregate

 

 

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  present value of cumulative accrued benefits for Key Employees under a defined contribution or defined benefit plan that is part of a Required or Permissive Aggregation Group) by (2) a similar sum determined for all Eligible Employees. For purposes of determining the Account of any Employee (or the present value of the cumulative accrued benefit for any Employee in a defined contribution or defined benefit plan), such Accounts or present value will be increased by the aggregate distributions made with respect to the Employee under the Plan and any plan aggregated with the Plan under Code Section 416(g)(2) during the one-year period ending on the Determination Date. The preceding sentence will also apply to distributions under a terminated plan that, had it not been terminated, would have been aggregated with the Plan under Code Section 416(g)(2)(A)(i). In the case of a distribution made for a reason other than separation from service, Death or Disability, this provision will be applied by substituting “five-year period” for “one-year period.”

 

  (c) Look-Back Period. If any Employee is a Non-Key Employee for any Plan Year, but was a Key Employee for any prior Plan Year, such Employee’s Accounts (and the present value of the cumulative accrued benefit for any such Employee in a defined contribution or defined benefit plan) will not be taken into account for purposes of determining whether this Plan is a Top-Heavy Plan. If an Employee has not performed any services for the Employer at any time during the one-year period ending on the Determination Date, such Employee’s Accounts (and the present value of the cumulative accrued benefit for any such Employee in a defined contribution or defined benefit plan) will not be taken into account for the purposes of determining whether the Plan is a Top-Heavy Plan.

 

14.3

C HANGE IN V ESTING S CHEDULE . To the extent the vesting provisions of the Plan are not more generous, if this Plan is deemed a Top-Heavy Plan for a Plan Year, then the vesting under the Plan will be at least as generous as the following schedule, or if more generous, the vesting schedule otherwise set forth in the Plan:

 

 

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Years of Service

   Vested
Percentage
 

Fewer than 2 Years of Service

     0

At least 2 Years of Service, but fewer than 3 Years of Service

     20

At least 3 Years of Service, but fewer than 4 Years of Service

     40

At least 4 Years of Service, but fewer than 5 Years of Service

     60

At least 5 Years of Service, but fewer than 6 Years of Service

     80

At least 6 Years of Service

     100

 

14.4 M INIMUM C ONTRIBUTION .

 

  (a) Amount of Contribution. For any Plan Year in which the Plan is a Top-Heavy Plan, the Employer will contribute to the Account of each non-Key Employee an amount equal to (1) the lesser of 3% of the Non-Key Employee’s Testing Compensation or the largest percentage of Testing Compensation contributed on behalf of any Key Employee for such Plan Year (determining such largest percentage by taking into account all contributions including Safe Harbor Matching Contributions and Employer Contributions for such Plan Year made by the Employer to such Key Employee’s Account) minus (2) any Employer contribution for such Plan Year for such Non-Key Employee that may have been made as of the Determination Date (including Safe Harbor Matching Contributions and Employer Contributions for such Plan Year made by the Employer).

 

  (b) Eligible Employees. The minimum contribution will be made on behalf of each Participant who is a Non-Key Employee regardless of whether the Non-Key Employee has attained any minimum level of service for accrual purposes or compensation for the Plan Year.

 

  (c) Coordination with Other Plan. If any Participant in this Plan is also covered by another defined contribution plan or defined benefit plan sponsored by the Employer, then for each year this Plan is a Top-Heavy Plan, the Participant’s receipt of a minimum guaranteed benefit under the other defined contribution plan or the defined benefit plan in accordance with Code Section 416(c)(1) will satisfy the minimum contribution requirement.

*  *  *  *   End of Article 14    *  *  *  *

 

 

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ARTICLE 15.

GENERAL PROVISIONS

 

15.1 I NTERPRETATION .

 

  (a) Consistency. If any provision of this Plan or the Trust Agreement may be susceptible to more than one interpretation, the interpretation that will always be given to such provision will be consistent with this Plan and the Trust Agreement being an employees’ plan and trust agreement within the meaning of Code Sections 401(a) and 501, or as replaced by any sections of like intent and purpose.

 

  (b) Severability. In case any provisions of this Plan is held illegal or invalid for any reason, said illegality or invalidity will not affect the remaining provisions of this Plan, and this Plan will be construed and enforced as if said illegal or invalid provisions had never been inserted herein.

 

  (c) Number and Gender. Unless the context otherwise requires, words denoting the singular number may, and where necessary will, be construed as denoting the plural number, and pronouns in the masculine gender include the feminine gender and pronouns in the neuter gender include the masculine and feminine gender.

 

  (d) Descriptive Headings. The headings of the Plan are inserted for convenience of reference only and has no bearing upon the meaning of the provisions hereof.

 

15.2 L IABILITY FOR P ARTICIPANT R EPRESENTATIONS . The Employer, the Administrator and the Trustee will be discharged from any liability in acting upon any representations by any individual of any fact affecting the individual’s status under this Plan or upon any notice, request, consent, letter, telegram, or other document believed by them, or any of them, to be genuine, and to have been signed or sent by the proper person.

 

15.3 G OVERNING L AW . The Plan will be construed, regulated and administered under the laws of the State of Colorado, except that if any such laws are superseded by any applicable federal law or statute, such federal law or statute will apply.

 

15.4 P ARTICIPATING E MPLOYERS .

 

  (a)

Rights of Participating Employer. Notwithstanding any provision in this Plan to the contrary, any entity that adopts this Plan participates in the Plan as a “Participating Employer,” as set forth in Schedule A , effective as of the date of such adoption. Subject to such Participating Employer’s right to withdraw from the Plan, the Participating Employer has no power or obligation to amend or consent to any amendment made by the Sponsor, and agrees to be bound by all the provisions, conditions, and limitations of the Plan, as amended from time to time, as fully as if the Participating Employer

 

 

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  was an original party to the Plan. For the purpose of this Plan, each Participating Employer, by adopting the Plan, irrevocably designates the Sponsor as its agent.

 

  (b) Withdrawal and Removal. A Participating Employer, by action of its board of directors or other governing body, may withdraw from the Plan at any time upon prior notice in writing to the Administrator (the effective date of such withdrawal being the “withdrawal date”), and will thereupon cease to be a Participating Employer for all purposes of the Plan. The Administrator may remove an adopting Participating Employer from the Plan at any time upon prior notice in writing to the Participating Employer (the effective date of such withdrawal being the “removal date”), and will thereupon cease to be a Participating Employer for all purposes of the Plan.

 

15.5 M ISSING P ARTICIPANTS AND B ENEFICIARIES . An individual for whom benefits are being held by the Trustee will keep the Administrator notified of the individual’s current mailing address. The Administrator, the Trustee and the Employer will be discharged from any liability resulting from the failure to pay benefits as they become due if the Administrator has notified the individual at the last address of record. If benefits are to be paid to an individual who cannot be located after six months following the date the Administrator first attempts to locate the individual, the Administrator may take either or none of the following actions, in addition to any other actions the Administrator may deem reasonable, at its discretion:

 

  (a) Forfeiture. The individual’s Account may be forfeited and applied as provided in Article 4 . If the individual is later located, the vested portion of the Account will be reinstated and distributed in accordance with the terms of the Plan.

 

  (b) Distribution to Established Account. The Administrator may direct the Trustee to distribute the Account by establishing an individually-designated account for such individual (for example, a savings account or individual retirement account), by purchasing an annuity for the individual, by transferring the account on behalf of such individual to an ongoing plan of the Employer, or by any other method deemed proper by the Administrator.

 

15.6 I NCAPACITY OF P ARTICIPANT OR B ENEFICIARY . If any Participant or Beneficiary entitled to receive a distribution under this Plan is, as determined by the Administrator in a uniform and nondiscriminatory manner, unable to apply such distributions to his or her own best interest, whether because of illness, accident or other incapacity (mental, physical or legal), the Administrator may, in its discretion, direct the Trustee to make distributions in one or more of the following ways:

 

  (a) directly to the Participant or Beneficiary;

 

  (b) to the duly appointed legal guardian or conservator of the Participant or Beneficiary;

 

 

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  (c) to the Spouse of the Participant or Beneficiary;

 

  (d) to a custodian under any applicable Uniform Gifts to Minors Act or Uniform Transfers to Minors Act;

 

  (e) to an adult relative or friend of the Participant or Beneficiary, or to one residing with the Participant or Beneficiary, pursuant to appropriate legal appointment (including durable power of attorney) for the benefit of the Participant or Beneficiary.

Any such payment will be a distribution for the account of such Participant or Beneficiary and will, to the extent thereof, be a complete discharge of any liability under the Plan to such Participant or Beneficiary. The Administrator’s reliance on the written instrument of agency governing a relationship between the Participant or Beneficiary entitled to distribution and the person to whom the Administrator directs distribution will be fully protected as though the Administrator made such distribution directly to the Participant or Beneficiary as a competent person. In the absence of actual knowledge to the contrary, the Administrator may assume that the instrument of agency was validly executed, that the Participant or Beneficiary was competent at the time of execution and that at the time of reliance, the agency has not been amended or terminated. The decision of the Administrator is final and binding on all interested parties, and the Administrator is under no duty to see to the proper application of the funds.

 

15.7 A SSIGNMENT AND A LIENATION . The Trust Fund is established for the purpose of providing for the support of the Participants upon their retirement and for the support of their families. Except in the case of any (a) Plan loan under Section 8.1 , (b) federal tax lien, (c) qualified domestic relations order under Section 7.10 , (d) breach of a Participant’s fiduciary obligations to the Plan, or (e) other event described in Section 401(a)(13) and the Regulations thereunder, no right or interest of any individual in any part of the Trust Fund will be transferable or assignable or be subject to alienation, anticipation, or encumbrance, and no such right or interest will be subject to garnishment, attachment, execution, or levy of any kind.

 

15.8 P ARTICIPANT R IGHTS . The sole rights of a Participant under this Plan will be to have this Plan administered according to its provisions, to receive whatever benefits the Participant may be entitled to hereunder, and, subject to any spousal Death benefit requirements, to name the Beneficiary to receive any Death benefits to which such person may be entitled.

 

15.9

E FFECT ON E MPLOYMENT S TATUS . The adoption and maintenance of this Plan will not be construed as creating any contract of employment between the Employer and any Participant. This Plan does not affect the right of the Employer to deal with its Employees in all respects, including their hiring, discharge, compensation, and conditions of employment. No individual will be discharged, fired, suspended, expelled, disciplined, or discriminated against for exercising any right under this

 

 

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  Plan or for giving information or testimony in any inquiry or proceeding relating to the Plan’s administration.

 

15.10 Q UALIFIED M ILITARY S ERVICE . The Plan will comply with the requirements of Code Section 414(u) with respect to each Participant who is absent from service because of “qualified military service” (as defined in Code Section 414(u)(5)) provided that the Participant returns to employment within such period after the end of the qualified military service as is prescribed under Code Section 414(u) (or other federal law cited therein). Accordingly, any such Participant will receive Employer Contributions, will be permitted to make additional Deferral Contributions after the Participant’s reemployment, will receive Safe Harbor Matching Contributions on such Deferral Contributions and will receive QMACs and QNECs if any were made for the period of qualified military service, and will receive service credit for the period of qualified military service as required under Code Section 414(u).

*  *  *  *   End of Article 15    *  *  *  *

IN WITNESS WHEREOF, the Sponsor has caused the Encana (USA) Inc. Retirement Plan to be executed in the name of and on behalf of the Sponsor, effective March 14, 2014.

 

E NCANA S ERVICES C OMPANY L TD .

S PONSOR

By:   /s/ Christopher J. Casebolt
Title:   Chair, U.S. Benefit Plan Administration Committee
Date:   3/11/2014

 

 

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E NCANA (USA) R ETIREMENT P LAN

S CHEDULE A-

P ARTICIPATING E MPLOYERS

 

Employer

  

Effective Date of Participation

(if after the Effective Date of this

amendment and restatement)

Encana Oil & Gas (USA) Inc.    n/a

*  *  *  *   End of Schedule A    *  *  *  *

 

 

Encana (USA) Retirement Plan – Schedule A      3/14/2014    68   


E NCANA (USA) R ETIREMENT P LAN

S CHEDULE B -

I MPUTED S ERVICE FOR P REDECESSOR AND R ELATED E MPLOYERS

Employer: Imputed Service Credit

 

[NONE]

*  *  *  *   End of Schedule B    *  *  *  *

 

 

Encana (USA) Retirement Plan – Schedule B      3/14/2014    69   


E NCANA (USA) R ETIREMENT P LAN

S CHEDULE C -

P ROTECTED B ENEFITS

[NONE]

*  *  *  *   End of Schedule C    *  *  *  *

 

 

Encana (USA) Retirement Plan – Schedule C      3/14/2014    70   

Exhibit 10.33

F IRST A MENDMENT

T O T HE

E NCANA (USA) R ETIREMENT P LAN

(As Amended and Restated Effective March 14, 2014)

1. Plan Sponsor : Encana Services Company, Ltd. (the “Plan Sponsor”).

2. Amendment of Plan : Pursuant to the authority of the undersigned and the provisions of Section 13.1 of the Encana (USA) Retirement Plan (the “Plan”), the following Amendment to the Plan is adopted, effective May 1, 2014.

A. Section 7.9(b)(7) of the Plan is deleted and the following subsection is renumbered accordingly.

3. Terms and Conditions of Plan : Except for the above amendment, all terms and conditions of the Plan are unamended and shall remain in full force and effect.

3. Execution : This Amendment has been executed on the date set forth below.

 

E NCANA S ERVICES COMPANY , L TD .

Plan Sponsor

By:   /s/ Christopher J. Casebolt
Title:   Chair, U.S. Benefit Plans Administration Committee
Date:   May 1, 2014

 

First Amendment to the Encana (USA) Retirement Plan

Prepared by Holland & Hart LLP

   5/2014 1

Exhibit 10.34

S ECOND A MENDMENT

TO T HE

E NCANA (USA) R ETIREMENT P LAN

(Amended and Restated Effective March 14, 2014)

1. Plan Sponsor : Encana Services Company Ltd. (the “Plan Sponsor”).

2. Amendment of Plan : Pursuant to the authority of the undersigned and the provisions of Section 13.1 of the Encana Retirement Plan (the “Plan”), the following Amendment to the Plan is adopted, effective as of the dates set forth below. This Amendment also amends the corresponding provision in the Encana (USA) Money Purchase Plan, As Amended and Restated Effective January 1, 2012, which was merged into this Plan effective March 14, 2014.

A. Section 6.5(b) of the Plan is amended, effective January 1, 2008, to read as follows:

 

  (b) Excess Annual Additions. Excess Annual Additions allocated to a Participant’s Account will be corrected only through the Employee Plans Compliance Resolution System.

3. Terms and Conditions of Plan : Except for the above amendment, all terms and conditions of the Plan are unamended and shall remain in full force and effect.

3. Execution : This Amendment has been executed on the date set forth below.

 

E NCANA S ERVICES C OMPANY L TD .

Plan Sponsor

By:   /s/ Christopher J. Casebolt
Title:   Chair, U.S. Benefit Plans Administration Committee
Date:   August 7, 2014

 

First Amendment to the Encana (USA) Retirement Plan

Prepared by Holland & Hart LLP

   6/2014 1

Exhibit 10.35

T HIRD A MENDMENT

TO T HE

E NCANA (USA) R ETIREMENT P LAN

(Amended and Restated Effective March 14, 2014)

1. Plan Sponsor : Encana Services Company Ltd. (the “Plan Sponsor”).

2. Amendment of Plan : Pursuant to the authority of the undersigned and the provisions of Section 13.1 of the Encana (USA) Retirement Plan (the “Plan”), the following Amendment to the Plan is adopted, effective as of the dates set forth below.

A. Effective December 31, 2015, the Plan is amended to reflect the merger of the Athlon 401(k) Plan into the Plan.

B. Schedule C of the Plan is amended, effective December 31, 2015 to read as attached hereto.

3. Terms and Conditions of Plan : Except for the above amendment, all terms and conditions of the Plan are unamended and shall remain in full force and effect.

3. Execution : This Third Amendment has been executed on the date set forth below.

 

E NCANA S ERVICES C OMPANY L TD .

Plan Sponsor

By:   /s/ Christopher J. Casebolt
  Christopher J. Casebolt
Title:   Chair, U.S. Benefit Plans Administration Committee
Date:   12/28/2015

 

 

Third Amendment to the Encana (USA) Retirement Plan    12/2015     1


E NCANA (USA) R ETIREMENT P LAN

S CHEDULE C -

P ROTECTED B ENEFITS

 

I. I N -S ERVICE W ITHDRAWAL OF A FTER -T AX C ONTRIBUTIONS

Notwithstanding anything in the Plan to the contrary, if after-tax contributions were transferred to the Plan pursuant to a plan merger or trust-to-trust transfer, a Participant may request an in-service withdrawal of all or a portion of the Participant’s Account which represents such after-tax contributions. For purposes of the preceding sentence, “after-tax contributions” do not include Roth Contributions.

 

II. P ROTECTED B ENEFITS FOR A THLON P LAN A CCOUNTS

This section applies to the accounts transferred to the Plan from the Athlon 401 (k) Plan (the “Athlon Plan”) in connection with the merger of the Athlon Plan into the Plan effective as of December 31, 2015. Any account transferred from the Athlon Plan will be called the Participant’s “Athlon Accounts” and will be entitled to the protected benefit features contained in this Section II of Schedule C. The Athlon Accounts will be subject to the regular provisions of the Plan as modified by this Section II of Schedule C.

Participant Accounts

Pursuant to Section 5.1(h) of the Plan, an Athlon Account (defined above) also qualifies as a Participant Account for those Participants who have an Athlon Account as a result of the merger.

Optional Forms

In addition to the optional forms of distribution available under Section  7.3 of the Plan, Athlon Accounts may be distributed in the following optional forms:

Fixed Payment Installment Option . The fixed payment installment option is an optional form of benefit under which the Participant elects to receive a specified dollar amount each year. The annual payment may be paid in annual, semi-annual, quarterly, or monthly installments as elected by the Participant. The Participant may elect to receive additional payments. The amount payable must satisfy minimum distribution requirements.

In-Service Withdrawals

In addition to the in-service withdrawals available under Section  8.2 of the Plan, Athlon Accounts may be subject to the following additional in-service withdrawal option for qualified Participants:

Qualified Reservist Distribution . A Participant who is called to active military duty and who is otherwise eligible, is entitled to an in-service withdrawal in the form of a Qualified Reservist Distribution as defined in Code Section 72(t)(2)(G)(iii).

 

 

Third Amendment to the Encana (USA) Retirement Plan    12/2015     2
  


Hardship Withdrawals

Hardship withdrawals under Section  8.3 are available from vested amounts in the following source components of Athlon Accounts: elective deferrals, matching contributions (other than QMACs) and discretionary employer contributions, if any.

* * * * End of Schedule C * * * *

 

 

Third Amendment to the Encana (USA) Retirement Plan    12/2015     3

Exhibit 10.36

ALENCO INC.

DEFERRED COMPENSATION PLAN

Effective December 1, 2004

[Amended and Restated Effective January 1, 2009]


ALENCO INC.

DEFERRED COMPENSATION PLAN

[Amended and Restated Effective January 1, 2009]

TABLE OF CONTENTS

 

ARTICLE I GENERAL

     1  

1.1. Name of Plan

     1  

1.2. Purpose

     1  

1.3. Effective Date

     1  

1.4. Company

     1  

1.5. Participating Employers

     2  

1.6. Construction and Applicable Law

     2  

ARTICLE II DEFINITIONS

     2  

2.1. Accounts

     2  

2.2. Beneficiary

     3  

2.3. Board

     3  

2.4. Code

     3  

2.5. Compensation

     3  

2.6. Disability

     4  

2.7. Employer Credits

     4  

2.8. ERISA

     4  

2.9. Investment Credits

     4  

2.10. Participant

     4  

2.11. Plan Year

     4  

2.12. Qualified Employee

     4  

2.13. Retirement

     4  

2.14. Separation from Service

     4  

2.15. Unforeseeable Emergency

     5  

2.16. Valuation Date

     5  

ARTICLE III PARTICIPATION

     5  

3.1. Eligibility For Participation

     5  

3.2. Duration Of Participation

     5  

3.3. Prior Plan Participants

     6  

3.4. No Guarantee of Employment

     6  

ARTICLE IV DEFERRED COMPENSATION AND CREDITS TO ACCOUNTS

     6  

4.1. Election to Defer Compensation

     6  

4.2. Election as to Form of Payment

     7  

4.3. Employer Credits

     8  

4.4. Investment Credits And Valuation Of Accounts

     8  

4.5. Unsecured Obligations

     9  

ARTICLE V DISTRIBUTION OF ACCOUNTS

     9  

5.1. Distribution Of Accounts

     9  

5.2. Distribution of Lump Sums

     10  

5.3. Administration of Accounts during Installment Period

     10  

5.4. Distributions to “Specified Employees” Upon Separation from Service

     11  

 

i


5.5. Beneficiary Designation

     11  

5.6. Distributions For Unforeseeable Emergency

     11  

5.7. Payment Of Small Benefits

     11  

5.8. Withholding And Taxes

     12  

5.9. Delay of Payments Subject to Code Section 162(m)

     12  

ARTICLE VI ADMINISTRATION AND CLAIMS PROCEDURES

     12  

6.1. Administration By The Company

     12  

6.2. Claims Procedure

     12  

6.3. Review Procedure

     13  

ARTICLE VII AMENDMENT AND TERMINATION

     14  

7.1. Amendment

     14  

7.2. Termination Of Plan

     14  

ARTICLE VIII MISCELLANEOUS

     14  

8.1. Benefits May Not Be Assigned Or Alienated

     14  

8.2. Right to Limit Deferrals

     15  

8.3. Incompetency

     15  

8.4. Successor Employer

     15  

8.5. Notices

     15  

8.6. Severability

     15  

8.7. Headings

     15  

8.8. Capitalized Definitions

     15  

8.9. Gender

     16  

8.10. Use Of Compounds Of Word “Here”

     16  

8.11. Construed As A Whole

     16  

* * * * *

 

ii


ALENCO INC.

DEFERRED COMPENSATION PLAN

[Amended and Restated Effective January 1, 2009]

WHEREAS , the Company acquired the Tom Brown, Inc. Deferred Compensation Plan dated as of March 1, 2001 (the “Prior Plan”) upon consummation of the Company’s purchase of Tom Brown, Inc., in May, 2004;

WHEREAS , the Company discontinued the Prior Plan and adopted the “Alenco Inc. Deferred Compensation Plan” effective December 1, 2004, as a nonqualified plan of deferred compensation for a select group of management or highly compensated employees (the “Plan”), including those participants in the Prior Plan (“Prior Plan Participants”) whose balances were transferred into the Plan upon its adoption; and

WHEREAS , the Company has, from its original effective date, operated the Plan in compliance with its terms, to the extent consistent with the requirements of § 409A (“§ 409A”) of the Internal Revenue Code of 1986, as amended (the “Code”) and the applicable guidance (including Notice 2005-1) and any other generally applicable guidance published with an effective date prior to January 1, 2008, and to the extent an issue was not addressed in Notice 2005-1 or other applicable guidance, in accordance with a reasonable, good faith interpretation of § 409A, through December 31, 2008; and

WHEREAS , the Company desires now to amend the Plan to conform its terms to the requirements of § 409A and the final Treasury regulations promulgated thereunder (70 Fed. Reg. 19234 (April 17, 2007)) with respect to amounts subject to § 409A, with effect from January 1, 2009;

NOW, THEREFORE , the Company amends and restates the Plan as follows, effective January 1, 2009:

ARTICLE I

GENERAL

1.1. Name of Plan . The name of this plan is the “Alenco Inc. Deferred Compensation Plan”.

1.2. Purpose . The Plan has been established to provide future income to certain select management or highly compensated employees through voluntary deferrals of Compensation.

1.3. Effective Date . The “Effective Date” of the Plan, the date as of which the Plan was established, is December 1, 2004, originally noted as January 1, 2005, which was the date the Plan became subject to § 409A.

1.4. Company . For purposes of this Plan, “Company” means Alenco Inc, a Delaware corporation, and any Successor Employer thereof.

 

1


1.5 Participating Employers . The Company is a “Participating Employer” in the Plan. Each subsidiary or affiliate of the Company that employs one or more Participants shall also be a Participating Employer. Each Participating Employer shall pay the cost of the benefits to which a Participant is entitled under the Plan attributable to service with that employer, and its share of the other expenses of the Plan, in each case in such amounts as are determined by the Company in its sole discretion. The initial Participating Employers are EnCana Oil & Gas (USA), Inc., Wild Goose Storage, Inc., EnCana Gas Storage, Inc., and EnCana Gulf of Mexico, LLC.

1.6 Construction and Applicable Law . The Plan is intended to be an unfunded plan maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees, within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA. Further, the Plan is intended to comply with Code Section 409A, and the Plan shall be administered and construed consistent with said intent. This Plan also shall be governed and construed in accordance with the laws of the State of Colorado as applied to contracts executed and to be wholly performed within said state to the extent that such laws are not preempted by the laws of the United States of America.

ARTICLE II

DEFINITIONS

2.1. Accounts . “Accounts” shall be established for each eligible Participant reflecting the amounts owed to the Participant or the Participant’s Beneficiary under the terms of this Plan. The following Accounts may be established for each Participant:

A. Retirement Account. A Retirement Account shall be established to which shall be credited the amounts of Compensation deferred by the Participant under Sec. 4.1 (other than amounts the Participant elects to have credited to a Fixed Period Account), Employer Credits determined under Sec. 4.3, and the Investment Credits under Sec. 4.4 related to those deferrals and credits.

B. Fixed Period Account. If the Participant so elects under Sec. 4.1.D., a Fixed Period Account shall be established to which shall be credited the deferrals under Sec. 4.1 that the Participant elects to have credited to this type of Account and the Investment Credits under Sec. 4.4 related to those deferrals.

1. The Participant may elect to establish separate Fixed Period Accounts with different maturity dates for amounts deferred in different Plan Years. However, deferrals during a particular Plan Year intended to be allocated to a Fixed Period Account may be allocated only to one Fixed Period Account with respect to such Plan Year, and no more than five Fixed Period Accounts with different maturity dates may exist for the Participant at any time.

2. The maturity date of each Fixed Period Account is January 1st of a year specified by the Participant that is at least two years after the Plan Year with respect to which the election applies.

 

2


3. In no case shall an election or elections to establish Fixed Period Account(s) result in a payment under this Plan that is not objectively determined and payable on a determinable date.

The Company may maintain sub-accounts for a Participant within each Account to reflect the amount deferred or credited for each Plan Year and Investment Credits on that amount. Each Participant is always 100% vested in the amounts credited to his or her Accounts.

2.2. Beneficiary . “Beneficiary” means the person or persons designated as such pursuant to the provisions of Sec. 5.5.

2.3. Board . “Board” means the board of directors of the Company.

2.4. Code . “Code” means the Internal Revenue Code of 1986, as amended from time to time, and any successor statute.

2.5. Compensation . “Compensation” for a Plan Year means the cash compensation, and not any amounts denominated or paid in stock, for services performed during a Plan Year which is paid to the Participant by a Participating Employer. For purposes of this Plan, Compensation includes the following sub-categories:

A. Base Compensation means the Compensation which is paid on a regular periodic basis and classified as such by the Participating Employer.

B. Bonus Compensation means the Compensation which is paid under a bonus program of a Participating Employer. Bonus Compensation includes the following subcategories:

1. Performance-Based Bonus Compensation means any cash amounts paid to the Participant under a performance-based bonus program of a Participating Employer. Performance-based bonus programs include only programs that are based on services performed over a period of at least 12 consecutive months, and under which payments are contingent on the satisfaction of preestablished organizational or individual performance criteria and not readily ascertainable at the time of the election. In compliance with Code Section 409A and the regulations thereunder, preestablished organization or individual performance criteria for Performance-Based Bonus Compensation shall (a) be established in writing no later than 90 days after the commencement of the 12 consecutive month period of service to which they relate, and (b) not be based upon any amount that will be paid either regardless of performance, or based on a level of performance that is substantially certain to be met at the time the criteria are established.

2. Other Bonus Compensation means the cash amounts paid to the Participant under a bonus program that does not qualify as Performance-Based Bonus Compensation.

 

3


The term “Bonus Compensation” refers hereafter to Performance-Based Bonus Compensation and Other Bonus Compensation collectively.

2.6. Disability . A participant shall be considered “Disabled” if (1) the participant is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, or (2) by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, the Participant is receiving income replacement benefits for a period of not less than 3 months under an accident and health plan covering employees of a Participating Employer.

2.7. Employer Credits . “Employer Credits” are the credits allocable to the Participant’s Retirement Account pursuant to Sec. 4.3.

2.8. ERISA . “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute.

2.9. Investment Credits . “Investment Credits” are the gains or losses allocable to Accounts of Participants under Sec. 4.4 based on the investment indexes elected by the Participant.

2.10. Participant . A “Participant” is an individual described as such in Article III.

2.11. Plan Year . A “Plan Year” is the 12 consecutive month period commencing on each January 1 and ending on the following December 31.

2.12. Qualified Employee . “Qualified Employee” for a Plan Year means any select management or highly compensated employee of a Participating Employer who has been designated in writing by the President of the Company as eligible to Participate in the Plan for the current Plan Year.

2.13. Retirement . “Retirement” means the Separation from Service of a Participant from the employ or service of a Participating Employer in accordance with the terms of the applicable qualified retirement plan, or if a Participant is not covered by such a retirement plan, the participant’s Separation from Service on or after the earliest to occur of the following:

A. the attainment of age 59  1 2 .

B. the attainment by the Participant of age 55 and 10 years of service (in accordance with the method of determining years of service adopted by the Participating Employer).

2.14. Separation from Service . “Separation from Service” means the cessation of a Participant’s services as an employee of a Participating Employer for any reason including on account of death, Retirement or because the Participant is Disabled; provided, however, that transfer of employment between two companies that are included in a “controlled group” within the meaning of Code Sections 414 and 1563 will not constitute a Separation from Service for

 

4


purposes of this Plan and provided, further, that the term “Separation from Service” shall be construed in a manner consistent with Code Section 409A and the regulations thereunder.

2.15. Unforeseeable Emergency . “Unforeseeable Emergency” means a severe financial hardship to the Participant resulting from an illness or accident of the Participant, the Participant’s spouse, the Participant’s Beneficiary, or the Participant’s dependent (as defined in Code Section 152 (without regard to Section 151(b)(1), (b)(2), and (d)(1)(B)) of the Participant, loss of the Participant’s property due to casualty (including the need to rebuild a home followed by damage to a home not otherwise covered by insurance, for example, not as a result of a natural disaster), or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant.

2.16. Valuation Date . “Valuation Date” means each date on which the Accounts of Participants are valued for purposes of this Plan. Valuation Dates shall include the last day of the Plan Year and such other dates as the Company determines are necessary or advisable for the administration of the Plan. Until the Company determines to use other Valuation Dates, the Valuation Dates are each business day on which the New York Stock Exchange is open for trading.

ARTICLE III

PARTICIPATION

3.1. Eligibility For Participation . An employee shall become a Participant in the Plan on the date on which he or she becomes a Qualified Employee, and the effective date of an election by the individual to make deferrals under Sec. 4.1. However, the individual shall become a Participant on the date he or she first receives an Employer Credit under Sec. 4.3, if earlier.

3.2. Duration Of Participation . An employee who becomes a Participant shall continue to be eligible to make elections under Sec. 4.1 thereafter, subject to the following:

A. The Participant’s deferrals shall cease on the earliest of:

1. The date of the Participant’s Separation from Service.

2. The date on which the Participant ceases to be a Qualified Employee.

3. The date the Participant fails to meet the requirements of any regulations or other guidance which may be issued by the Department of Labor that define the phrase “select group of management or highly compensated employees” under ERISA.

B. No deferrals under Sec. 4.1 shall be made from any Compensation that is payable to the Participant after the earliest of the dates specified in subsection A. unless he or she again meets the requirements for being a Qualified Employee for a subsequent Plan Year. However, an individual shall continue to be a Participant for purposes of the provisions of the Plan other than Sec. 4.1 or Sec. 4.3 until the date all of his or her Accounts have been distributed.

 

5


3.3. Prior Plan Participants . Notwithstanding anything to the contrary, all accounts of Prior Plan Participants shall be administered pursuant to the terms and conditions of this Plan from and after the date of its adoption.

3.4. No Guarantee of Employment . Participation in the Plan does not constitute a guarantee or contract of employment with any Participating Employer. Such participation shall in no way interfere with any rights Participating Employers would have in the absence of such participation to determine the duration of the employee’s employment.

ARTICLE IV

DEFERRED COMPENSATION AND CREDITS TO ACCOUNTS

4.1. Election to Defer Compensation . A Qualified Employee may elect to have part of the Compensation for a Plan Year credited to his or her Accounts rather than being paid in cash. The Compensation otherwise payable to a Participant who elects to defer compensation under this section shall be reduced by the percentage or amount so elected, subject to the following:

A. Elections shall be made on forms specified by the Company for purposes of this Plan. Elections for each Plan Year must be filed during the election period specified by the Company for such Plan Year, which period must end on or prior to December 31 of the previous year for Base Compensation elections and for Other Bonus Compensation elections, and no later than June 30 of the current Plan Year for Performance-Based Bonus Compensation elections, subject to the following:

1. In the first year in which an individual becomes a Qualified Employee, such individual may file an election to defer Compensation with respect to services to be performed subsequent to the election within 30 days following the date the individual becomes a Qualified Employee, and the election will be effective as of the first day of the first pay period commencing after the election is filed.

2. An election to defer Performance-Based Bonus Compensation shall be available only to Participants who perform services continuously from the later of beginning of the applicable performance period or the date the performance period criteria are established through the date an election is made under this Subsection A, and whose election to defer such Performance-Based Bonus Compensation is made before the compensation is readily ascertainable. In general, any amount that is both calculable and substantially certain to be paid, as defined in Treasury Reg. § 1.409A-2(a)(8), is treated as readily ascertainable.

B. The Participant may elect to defer any whole percent of Base Compensation payable during each pay period, but not more than 50% of Base Compensation. The Participant may also elect to defer any dollar amount of Base Compensation, in even $1,000 increments and spread evenly over the pay periods, provided that the total amount deferred may not exceed 50% of Base Compensation.

 

6


C. The Participant may elect to defer any whole percent (up to and including 100%) of any payment of Bonus Compensation or any dollar amount of such Bonus Compensation (in even $1,000 increments, up to and including 100% of Bonus Compensation). Notwithstanding the foregoing, the Company may, without amending the Plan, limit the maximum amount of Bonus Compensation that may be deferred under the Plan.

D. The Participant’s election for each Plan Year shall specify the portion of the amount deferred during that year that is to be allocated to the Participant’s Retirement Account and the portion that is to be allocated to the Participant’s Fixed Period Account. The election must be stated in whole percents and must total 100%. If the Participant fails to file an adequate election under this subsection, the entire amount deferred (or the portion of the deferral which is not specifically allocated to a Fixed Period Account, if applicable) shall be allocated to the Participant’s Retirement Account.

E. The deferred compensation credited under the Plan on behalf of a Participant for a Plan Year shall be allocated to the Accounts of the Participant as of the date that the Base Compensation or Bonus Compensation would otherwise have been paid to the Participant in cash.

F. The Participant must file a separate election with the Company for each Plan Year for which elective deferrals under this Section 4.1 are to be made under this Plan. An election for a Plan Year shall become irrevocable on the last day of the preceding Plan Year for Base Compensation and Other Bonus Compensation elections and no later than June 30 of the current Plan Year for Performance-Based Bonus Compensation, as the Company may require. Elections will not carry over into subsequent Plan Years.

G. Notwithstanding anything in this Section 4.1 to the contrary, elections to defer Performance-Based Bonus Compensation and Other Bonus Compensation attributable to services performed during the year ended December 31, 2004, may be made on or before December 31, 2004. Pursuant to Treasury Regulation 1.409A-6(a)(ii), the Company explicitly identifies such amounts as amounts deferred under the Plan with respect to the 2004 calendar year and as subject in all respects to § 409A commencing January 1, 2005.

4.2. Election as to Form of Payment. The Participant shall file an election as to how the balance in the Participant’s Accounts will be distributed. The election must be made on a form provided by the Company. The Participant may elect to have the Participant’s balance distributed in (1) a lump sum, (2) in annual installments over a period of 5 years, or (3) in annual installments over a period of 10 years. If the Participant fails to make an election for an Account as provided herein, then the Participant will be deemed to have elected the lump sum distribution option for such Account. All elections as to form of payment shall be irrevocable. The time for making such elections is as follows:

 

7


A. With respect to the Participant’s Retirement Account, the Participant shall elect the form of payment at the time the Participant first enrolls in the Plan pursuant to Sec. 4.1.

B. With respect to the Participant’s Fixed Period Account, the Participant shall elect the form of payment at the time the Participant first elects to defer Compensation into such Fixed Period Account.

4.3. Employer Credits . The Board, or its authorized delegate, may determine in its sole discretion that a credit will be made by the Company or other Participating Employer to the Retirement Account of one or more eligible Participants for a particular Plan Year. If a credit is to be made for a particular Participant for a Plan Year, the Board, or its authorized delegate, will determine the amount of the credit, the date or dates on which the amount will be credited to the Participant’s Retirement Account, and any rules the Participant must satisfy to receive the credit. Such rules may include, but are not limited to, requirements that the Participant must be employed by a Participating Employer on a particular date during or after the end of the Plan Year, that the Participant must complete a certain number of hours of service during the Plan Year, or that the Participant must meet certain performance standards for the year.

4.4. Investment Credits And Valuation Of Accounts . The Accounts of each Participant will be adjusted as of each Valuation Date to reflect Investment Credits, deferrals allocated to the Account under Sec. 4.1, Employer Credits allocated under Sec. 4.3, and distributions from the Account under Article V, in each case since the previous Valuation Date, subject to the following:

A. Investment Credits will be based on the investment index or indexes selected by the Participant to measure the deemed rate of investment return on his or her Accounts. The investment indexes will include such investment options as the Company makes available under this Plan from time to time. The Company may in its sole discretion add additional options or delete existing options available to a Participant at any time, provided the Participant has been notified as described in Sec. 7.1. Notwithstanding anything in the Plan to the contrary, the Company shall be under no obligation to purchase any investments used for determining Investment Credits. The investment indexes are used solely for the recordkeeping purpose of measuring gains and losses on each Participant’s Accounts, and the Participant’s Accounts are not actually being invested in the indexes.

B. All investment elections shall be filed in writing on a prescribed form (or in such other manner as the Company may authorize from time to time) with the Company or with such agent or agents as may be designated from time to time by the Company for this purpose. Subject to subsection A. above, each investment election shall remain in effect until a new election is filed by the Participant.

C. An initial investment election shall be filed by the Participant when an Account is first established for the Participant. Thereafter, the Participant may change the investment indexes for existing Account balances and future credits effective as of any Valuation Date, provided the change is filed prior to the deadline that may be established

 

8


by the Company or its designated agent from time to time for the desired effective date. All investment elections must be expressed in whole percent increments for each option.

D. A Participant may file separate investment elections for his or her Retirement Account and all Fixed Period Accounts, and may also file separate investment elections for the existing Account balance and for future amounts to be credited to each Account. If the Participant fails to file an effective investment election for all or part of an Account, that amount shall be credited with Investment Credits according the yield on a default investment option designated by the Company from time to time.

E. If distributions are to be made in installments following the death of a Participant, each Beneficiary shall have the same right to make investment elections for the portion of the Participant’s Accounts held on behalf of the Beneficiary as the Participant had prior to death.

F. All investment elections shall be in accordance with such rules and regulations as the Company or its designated agent may establish from time to time. The Company or its agent may also establish such procedures for the valuation of Accounts as the Company or its agent determines in its sole discretion will reasonably reflect the period of time amounts were credited to each Account.

G. Notwithstanding the foregoing, the Company may modify or disregard an investment election filed by a Participant to the extent the Company determines that such action is necessary to comply with the terms of this Plan or to avoid adverse tax consequences to the Participant or any Participating Employer. The Company may delay the implementation of Participant investment elections under this section to a date later than January 1, 2005 in which case the Participant’s Accounts will be credited during the period of the delay with Investment Credits at a rate or index established by the Company for this purpose prior to January 1, 2005.

4.5. Unsecured Obligations . A Participant’s credits in his or her Accounts shall be an unsecured obligation of the Participating Employer for which the Participant is or was employed. Each Participant or Beneficiary is only a general creditor of the Participating Employer with respect to his or her Accounts. Accounts are maintained for recordkeeping purposes only. Notwithstanding the foregoing, obligations to pay benefits under this Plan may be satisfied by distributions from a grantor trust created by the Company in its sole discretion for such purpose. Each Participant shall cooperate with the Company and shall execute any documents or submit to any physical examination reasonably required by the Company in connection with the administration of the Plan.

ARTICLE V

DISTRIBUTION OF ACCOUNTS

5.1. Distribution Of Accounts . Except as otherwise provided, a Participant’s Accounts will be distributed commencing upon the first to occur of the following in the form elected by the Participant:

 

9


A. Separation from Service other than Upon Retirement, Death or Disability. If a Participant has a Separation from Service prior to commencing distributions from an Account other than on account of Retirement, death or because the Participant is Disabled, then distributions from such Account will commence as soon as administratively feasible in the first Plan Year following the Participant’s Separation from Service in the manner elected by the Participant, except that the installment period shall be 5 years if the Participant elected installment payments of 5 years or more.

B. Retirement or Disability. If the Participant Separates from Service on account of Retirement or because the Participant is Disabled, then distributions will commence as soon as administratively feasible in the first Plan Year following the Participant’s Separation from Service in the manner elected by the Participant.

C. Death Prior to Commencement. If the Participant dies prior to commencing distributions from an Account, distributions to the Beneficiary or Beneficiaries will commence within 90 days after the last day of the month in which the Participant’s death occurred in the manner elected by the Participant.

D. Death Following Commencement. If the Participant dies after beginning to receive installment payments, the Beneficiary or Beneficiaries shall receive the remaining installment payments at the same times as the Participant would have received them if he or she had survived.

E. Maturity of a Fixed Period Account. In the case of a Fixed Period Account, distributions will commence upon the earlier of the times specified in subsections A. through D. above or upon the maturity date of such Fixed Period Account. Distributions will be made in the manner elected by the Participant; provided that Distributions commencing pursuant to subsection A. above (upon Separation from Service other than on account of Retirement, death or Disability) will be made in the manner elected by the Participant, except that the installment period shall be 5 years if the Participant elected installment payments of 5 years or more.

5.2. Distribution of Lump Sums . If a Participant’s Account is to be distributed in a lump sum, the amount distributed will be the value of the Account on last Valuation Date preceding the date of the distribution.

5.3. Administration of Accounts during Installment Period. If payments from an Account are to be made in installments, then the annual amount paid in each year will be equal to the value of the Account as of the last Valuation Date preceding the date the first installment is to be made, divided by the number of installments that remain subject to the following:

A. The Account will continue to be adjusted for Investment Credits pursuant to Sec. 4.4 during the installment period.

B. Installment payments will cease when the balance of the Account is equal to $0.

 

10


C. The payment for the final year of installments will include the entire balance remaining in the Account at that time.

Each installment payment after the first payment will be paid on the anniversary date of the first such installment.

5.4. Distributions to “Specified Employees” Upon Separation from Service . Notwithstanding anything to the contrary herein, in the case of any Participant who is a Specified Employee, distributions to such Participant shall not commence before the date which is 6 months after the date of such Participant’s Separation from Service (that is, no earlier than the first day of the seventh month following the date of the Participant’s Separation from Service). In the case of any payments pursuant to an installment method of payment any installment payments for a Participant who is a Specified Employee following such Participant’s initial payment following Separation from Service shall be made on the anniversary date of the first installment regardless of the date of such Participant’s Separation from Service. For purposes of this Sec. 5.4, the term “Specified Employee” means a key employee within the meaning of Code Section 409A(a)(2)(B)(i). This paragraph shall not apply in the case of distributions upon the death of a Specified Employee.

5.5. Beneficiary Designation . Each Participant shall have the right, at any time, to designate any person or persons as Beneficiary or Beneficiaries to whom payments under this Plan shall be made in the event of the Participant’s death prior to complete distribution of the amount credited to the Participant’s Accounts. Each Participant shall have the right to change his or her Beneficiary designation at any time. Each Beneficiary designation shall become effective only when filed in writing with the Company during the Participant’s life on a form prescribed by or approved by the Company. The rights of each Beneficiary shall be subject to the terms and conditions specified on the designation form to the extent consistent with the terms of the Plan. If a Participant fails to designate a Beneficiary as provided above, or if all designated Beneficiaries predecease the Participant, then the Beneficiary shall be the Participant’s estate.

5.6. Distributions For Unforeseeable Emergency . Notwithstanding the foregoing sections of this Article V, the Company in its sole discretion may approve a written request by a Participant for a withdrawal from the Participant’s Accounts due to an Unforeseeable Emergency. Any amount distributed pursuant to this Sec. 5.6 shall not exceed the amount necessary to satisfy such Unforeseeable Emergency plus amounts necessary to pay taxes reasonably anticipated as a result of the distribution, after taking into account the extent to which such hardship is or may be relieved through reimbursement or compensation by insurance or otherwise or by liquidation of such assets (to the extent liquidation of such assets would not itself cause a severe financial hardship).

5.7. Payment Of Small Benefits . Notwithstanding the foregoing provisions of this Article V, if the total balance of the Participant’s Accounts upon his Separation from Service is less than $10,000, the Company shall pay the entire balance in a single lump sum on a date determined by the Company as soon as administratively feasible following the Participant’s Separation from Service, but in no event later than 2 1/2 months after the Plan Year in which such Separation from Service occurs, except that in the case of a Specified Employee the distribution

 

11


shall not be made before the date which is 6 months after the date of such Participant’s Separation from Service, subject to any exceptions or conditions provided under Sec. 5.4.

5.8. Withholding And Taxes . The benefits payable under this Plan shall be subject to the deduction of any federal, state, or local income taxes or other taxes which are required to be withheld from such payments by applicable laws and regulations. Any Social Security (FICA) taxes which must be withheld prior to the distribution of benefits to the Participant shall be withheld from the amounts deferred, or from the Participant’s other compensation, as determined by the Company. The Company provides no assurances or guarantees regarding the tax treatment of amounts deferred or payments made under this Plan. Each Participant is solely responsible for any applicable income, excise and other taxes, penalties or interest (including any excise tax under Code Section 4999).

5.9. Delay of Payments Subject to Code Section 162(m) . Notwithstanding anything in this Article V to the contrary, a payment otherwise payable under this Plan shall be delayed if the Company reasonably anticipates that the Company’s deduction with respect to such payment otherwise would be eliminated or limited by application of Code Section 162(m). In the event of such delay in payment, actual payment shall be made at the earliest date the Company anticipates that the deduction of the payment amount will not be limited or eliminated by the application of Code Section 162(m) or the calendar year in which the Participant experiences a Separation from Service, if sooner.

ARTICLE VI

ADMINISTRATION AND CLAIMS PROCEDURES

6.1. Administration By The Company . The Company, or its authorized delegate, shall administer the Plan, shall establish, adopt, or revise such rules and regulations as it may deem necessary or advisable for the administration of the Plan, and shall have discretionary authority to interpret the provisions of the Plan. The interpretations of the Company shall be conclusive on all parties.

6.2. Claims Procedure . Any person who believes he or she is being denied any rights or benefits under the Plan may file a claim in writing with the Company. If the claim is denied (in whole or part), the Company will notify the claimant of its decision in writing. The notification will be written in a manner intended to be understood by the claimant and will contain [i] the specific reasons for the adverse determination, [ii] reference to the specific Plan provisions on which the determination is based, [iii] a description of additional material or information necessary for the claimant to perfect the claim, [iv] information as to the steps to be taken if the claimant wishes to submit a request for review, and [v] a statement of the claimant’s right to bring a civil action under ERISA Section 502(a) if the claim is denied on appeal. In the case of disability benefits, the Company’s written notification of any adverse benefit determination must contain the following information if an internal rule, guideline, protocol, or other similar criterion was relied upon in making the adverse determination: either the specific rule, guideline, protocol, or other similar criterion, or a statement that such rule, guideline, protocol, or other similar criterion was relied upon in making the adverse determination and that a copy of the rule, guideline, protocol, or other similar criterion will be provided to the claimant free of charge upon request.

 

12


The notification will be given within 90 days after the claim is received by the Company (or within 180 days, if special circumstances require an extension of time for processing the claim, and if written notice of the extension and circumstances is given to the claimant within the initial 90 day period). If notification is not given within this period, the claim will be considered denied as of the last day of such period and the claimant may request review of the claim. In the case of a claim for disability benefits, then instead of the above, the Company will provide the claimant with written notification of the Plan’s adverse benefit determination within a reasonable period of time, but not later than 45 days after receipt of the claim by the Company. The disability notification period may be extended by the Company for up to 30 days, provided that the Company both determines that such an extension is necessary due to matters beyond the control of the Company and notifies the claimant, prior to the expiration of the initial 45-day period, of the circumstances requiring the extension of time and the date by which the Company expects to render a decision. If, prior to the end of the first 30-day extension period the Company determines that, due to matters beyond its control, a decision on the disability benefit cannot be rendered within that extension period, the period for making the determination may be extended for up to an additional 30 days, provided that the Company notifies the claimant, prior to the expiration of the first 30-day extension period, of the circumstances requiring the extension and the date as of which the Company expects to render a decision. In the case of any such extension relating to a disability benefit, the notice of extension will specifically explain the standards on which entitlement to a benefit is based, the unresolved issues that prevent a decision on the claim, and the additional information needed to resolve those issues, and the claimant will be afforded at least 45 days within which to provide the specified information.

6.3. Review Procedure . If a claim is denied in whole or in part, or if it is deemed denied, the claimant has 60 days after receipt of the written notice of denial of the claim, or 60 days after the claim is deemed denied, in which to file a written request with the Company that it conduct a review of the claim. If the claim is for disability benefits, then the request for review must be filed within 180 days after receipt of the denial or after the claim is deemed denied. In connection with the claimant’s appeal of the denial of a benefit, the claimant may review pertinent documents and may submit issues and comments in writing. The claimant will be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claim for benefits. The claimant will have a reasonable opportunity for full and fair review of the claim and adverse determination. This review will take into account all comments, documents, records, and other information submitted by the claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination. In addition, if the claim is for disability benefits, then the following rules apply: (a) The claim will be reviewed without deference to the initial adverse benefit determination and the review will be conducted by an appropriate named fiduciary of the Plan who is neither an individual who made the adverse benefit determination that is the subject of the appeal, nor the subordinate of such individual (and who shall be designated by the Company), (b) In deciding an appeal of any adverse benefit determination that is based in whole or part on medical judgment, the appropriate named fiduciary will consult with a health care professional who has appropriate training and experience in the field of medicine involved in the medical judgment, (c) Any medical or vocational experts whose advice was obtained on behalf of the Plan in connection with the adverse benefit determination will be identified, without regard to whether the advice was relied upon in making the benefit determination, (d) The health care professional engaged for purposes of a consultation under (b)

 

13


above will be an individual who is neither an individual who was consulted in connection with the adverse benefit determination that is the subject of the appeal, nor the subordinate of any such individual.

The claimant will be provided with written notification of the Plan’s benefit determination on review. The notification must be provided to the claimant not later than 60 days after the receipt of the claimant’s request for review, unless special circumstances (such as the need to hold a hearing, if necessary) require an extension of time for processing, in which case the 60 day period may be extended for a period of 60 days from the end of the initial period. If the claim relates to disability benefits, then 45 days will apply instead of 60 days in the preceding sentences. The claimant will be notified in writing of any extension. In the case of an adverse benefit determination on review, the notification will set forth [i] specific reasons for the adverse determination, [ii] reference to the specific Plan provisions on which the benefit determination is based, [iii] a statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claim, and [iv] a statement of the claimant’s right to bring an action under ERISA Section 502(a). In the case of disability benefits, the Company’s written notification of any adverse benefit determination must contain the following information if an internal rule, guideline, protocol, or other similar criterion was relied upon in making the adverse determination: either the specific rule, guideline, protocol, or other similar criterion, or a statement that such rule, guideline, protocol, or other similar criterion was relied upon in making the adverse determination and that a copy of the rule, guideline, protocol, or other similar criterion will be provided to the claimant free of charge upon request.

ARTICLE VII

AMENDMENT AND TERMINATION

7.1. Amendment . The Plan may be amended in whole or in part at any time for any reason by action of the Board, or by action of any person to whom that authority has been delegated by the Board. No amendment shall decrease the benefits under the Plan which have accrued prior to the date such amendment is adopted. However, the Company may modify the investment index options under Sec. 4.4 to be used to determine Investment Credits for a Participant’s Accounts commencing as of a date specified by the Company, but not sooner than 30 days after the date a notice of the change is either mailed or hand-delivered to the Participant.

7.2. Termination Of Plan . The Company, by action of the Board, may terminate the Plan at any time. After such termination, no employee shall become a Participant, and no further amounts shall be credited pursuant to Sec. 4.1 or Sec. 4.3 to Accounts of Participants. Thereafter, the amounts credited to the Accounts of Participants will continue to be credited with Investment Credits pursuant to Section 4.4 and distributed in accordance with Article V.

ARTICLE VIII

MISCELLANEOUS

8.1. Benefits May Not Be Assigned Or Alienated . Neither a Participant nor any Beneficiary shall have the right to sell, assign, transfer, encumber or otherwise convey any right to receive any payment hereunder. No part of the amounts payable hereunder shall be subject to

 

14


seizure or sequestration for the payment of any debts or judgments owed by a Participant or any other person; provided however, that the Company may offset the obligations to the Participant or the Participant’s Beneficiary hereunder by any debt of the Participant to the Company or any other Participating Employer where such debt is incurred in the ordinary course of the business relationship between the Participant and the Company; and provided further, that (i) the entire amount of reduction in any taxable year of the Company does not exceed $5,000 and (ii) the reduction is made at the same time and in the same amount as the debt otherwise would have been due and collected from the Participant.

8.2. Right to Limit Deferrals . Notwithstanding anything to the contrary, the Company and any Participating Employer reserves the right to limit the aggregate amount of deferrals made by Participants during a Plan Year to $5,000,000, or such other amount specified in subsection 5(e) of Rule 701 of Regulation E of the Securities Act of 1933 if the Company or such Participating Employer determines that it is desirable to do so. The manner of limiting deferrals under this paragraph will be determined by the Company or such Participating Employer as the case may be. Such deferral limit for any given Plan Year shall be imposed prior to the date deferrals are required to be or become irrevocable for that Plan Year under Code Section 409A, the regulations thereunder, and Article IV of this Plan.

8.3. Incompetency . Every person receiving or claiming benefits under this Plan shall be conclusively presumed to be mentally competent until the date on which the Company receives a written notice in a form and manner acceptable to the Company that such person is incompetent and that a guardian, conservator or other person legally vested with the care of his or her estate has been appointed. In such event, the Company may direct payments of benefits to such guardian, conservator or other person legally vested with the care of the person’s estate and any such payments so made shall be a complete discharge of the Participating Employers to the extent so made.

8.4. Successor Employer . The Plan shall be binding on the Company and its assigns, each Participating Employer and its assigns, and any entity that succeeds to the business of the Company or another Participating Employer through merger, consolidation, or acquisition of all or substantially all the Company’s assets or another Participating Employer’s assets.

8.5. Notices . Notices required by this Plan to be given to the Company or a Participant shall be in writing and shall be considered to have been duly given or served if personally delivered, or sent by first class, certified or registered mail.

8.6. Severability . The invalidity or partial invalidity of any portion of this Plan shall not invalidate the remainder thereof, and said remainder shall remain in full force and effect.

8.7. Headings . Headings at the beginning of articles and sections hereof are for convenience of reference, shall not be considered a part of the text of the Plan, and shall not influence its construction.

8.8. Capitalized Definitions . Capitalized terms used in the Plan shall have their meaning as defined in the Plan unless the context clearly indicates to the contrary.

 

15


8.9. Gender . Any references to the masculine gender include the feminine and vice versa.

8.10. Use Of Compounds Of Word “Here” . Use of the words “hereof”, “herein”, “hereunder”, or similar compounds of the word “here” shall mean and refer to the entire Plan unless the context clearly indicates to the contrary.

8.11. Construed As A Whole . The provisions of the Plan shall be construed as a whole in such manner as to carry out the provisions hereof and shall not be construed separately without relation to the context.

 

16

Exhibit 10.37

ALENCO INC.

U.S. Benefit Plans Administration Committee

 

Unanimous Written Consent to Action in Lieu of a Meeting

The undersigned, being all the members of the U.S. Benefit Plans Administration Committee (the “Committee”), of Alenco. Inc. (the “Company”), are entitled to take action on the matters herein, and hereby unanimously consent to the adoption of the following resolutions:

 

  A. Amendments to Alenco Inc. Deferred Compensation Plan

WHEREAS , the Company has delegated to the Committee the right to manage the Alenco Inc. Deferred Compensation Plan (the “NQDC Plan”), and to implement amendments to the NQDC Plan consistent with its mandate; and

WHEREAS , the Committee has determined to clarify and amend the NQDC Plan, as of January 1, 2012, to make certain administrative changes to the Plan;

NOW THEREFORE BE IT RESOLVED THAT:

The following amendments are made to the NQDC Plan effective January 1, 2012:

 

    ARTICLE I, 1.5 Participating Employers, add: “Encana Services Inc. is a participating employer as of April 1, 2010. Encana Natural Gas Inc. is a participating employer as of August 1, 2010.”

 

    ARTICLE II, 2.1 Accounts, B., 1., delete the sentence: “However, deferrals during a particular Plan Year intended to be allocated to a Fixed Period Account may be allocated only to one Fixed Period Account with respect to such Plan Year, and no more than five Fixed Period Accounts with different maturity dates may exist for the Participant at any time.

 

    ARTICLE IV, 4.1 Election to Defer Compensation, B., delete the sentence: “The Participant may also elect to defer any dollar amount of Base Compensation, in even $1,000 increments and spread evenly over the pay periods, provided that the total amount deferred may not exceed 50% of Base Compensation.”

 

    ARTICLE IV, 4.1 Election to Defer Compensation, C., delete the phrase: “…or any dollar amount of such Bonus Compensation (in even $1,000 increments, up to an including 100% of Bonus Compensation)’’

 

   

ARTICLE IV, 4.2 Election as to Form of Payment, replace the sentence: “The Participant may elect to have the Participant’s balance distributed in (1) a lump sum, (2) in annual installments over a period of 5 years, or (3) in annual installments over a period of 10 years.” with “The Participant may elect to have

 

1


   
  the Participant’s balance distributed in (1) a lump sum, or (2) in annual installments for any number of years up to 10.”

 

  B. Transfer of Trust Assets

WHEREAS , the Company has delegated to the Committee the right to manage the NQDC Plan and the Tom Brown, Inc. Deferred Compensation Plan (discontinued December 1, 2004) (the “TBI NQDC Plan”); and

WHEREAS , the Committee has determined after consideration, to transfer the Trust Assets of the NQDC Plan and the TBI NQDC Plan from Bankers Trust to Principal Trust Company, to realize cost savings and administration efficiencies;

NOW THEREFORE BE IT RESOLVED THAT:

The Trust Agreement with Bankers Trust be terminated, and the Assets of the NQDC Plan and the TBI NQDC Plan be transferred to Principal Trust Company as of January 1, 2013 (or as soon as administratively practicable), upon execution of a Trust Agreement with Delaware Charter Guarantee & Trust Company, conducting business as Principal Trust Company.

AND BE IT FURTHER RESOLVED THAT:

The Committee hereby authorizes and directs, for and on behalf of the Committee through the Alenco Inc. U.S. Benefit Plans Administration Committee Mandate parts #10 and #13, the Committee Chair to take any action and execute any documents that in his opinion or in the opinion of the Company’s legal counsel may be necessary or advisable to accomplish the resolutions described above, and that one or more officers of the Company and where appropriate other employees of the Company, are further authorized to execute such documents and instruments and to take such actions as are necessary or advisable to: (1) effectuate the adoption of these resolutions; (2) implement the provisions of these resolutions; and (3) maintain compliance of the Plans with applicable laws and regulations including any filings with state or federal government agencies.

****

This unanimous written consent may be executed in counterparts.

 

COMMITTEE MEMBERS:    
/s/ John P. Keplinger     /s/ Philip J. Coyle
John P. Keplinger     Philip J. Coyle
Dated:  

1-25-13

    Dated:  

01/25/13

 

/s/ Mary Viviano     /s/ Christopher J. Casebolt
Mary Viviano    

Christopher J. Casebolt

Dated:  

1/9/13

    Dated:  

1/9/13

/s/ Nancy Brennan     /s/ Rob Barclay
Nancy Brennan     Rob Barclay
Dated:  

01/24/13

    Dated:  

1/24/13

 

2

Exhibit 12.1

CONSOLIDATED STATEMENT OF COMPUTATION OF

RATIO OF EARNINGS TO FIXED CHARGES

 

     Years Ended December 31,
(Unaudited)
 
(millions, except for ratio amounts)    2016     2015     2014     2013     2012  

Earnings

          

Net Earnings (Loss) Before Income Tax

     (1,620     (8,010     4,629       (12     (4,831

(Income) or loss from equity investees (1)

     3       3       (4     (6     —    

Fixed charges (2)

     447       696       712       631       611  

Noncontrolling interest in pre-tax income of subsidiaries that have not incurred fixed charges

     —         —         (41     —         —    
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total Earnings (Loss)

     (1,170     (7,311     5,296       613       (4,220

Fixed Charges

          

Interest expense

     391       610       663       557       516  

Amortized premiums, discounts & capitalized expenses

     6       4       (9     6       6  

Estimate of interest in rental expenditures

     50       82       58       68       89  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total Fixed Charges

     447       696       712       631       611  

Ratio of Earnings to Fixed Charges (2)

     (2.6     (10.5     7.4       1.0       (6.9

 

(1)   There were no distributions of income from equity investees.
(2)   The amount by which earnings were insufficient to cover fixed charges was approximately $4,831 million for the year ended December 31, 2012; $8,007 million for the year ended December 31, 2015; and $1,617 million for the year ended December 31, 2016.

 

Exhibit 21.1

ENCANA CORPORATION

Significant Subsidiaries

December 31, 2016

 

1. 1847432 Alberta ULC, incorporated in Alberta

 

2. Alenco Inc., incorporated in Delaware

 

3. Encana Oil & Gas (USA) Inc., incorporated in Delaware

 

4. 1977994 Alberta Ltd., incorporated in Alberta

 

5. Encana Global Holdings S.a r.l., incorporated in Luxembourg

 

6. Encana Leasehold Limited Partnership, incorporated in Alberta

 

7. Encana Finance Switzerland AG, incorporated in Switzerland

 

Exhibit 23.1

 

 

LOGO

 

Consent of Independent Registered Public Accounting Firm

We hereby consent to the incorporation by reference in the registration statements on Form F-3 (File Nos. 333-187492), and on Form S-8 (File Nos. 333-124218, 333-85598, 333-140856 and 333-188758) of Encana Corporation our report dated February 27, 2017 relating to the Consolidated Financial Statements as at December 31, 2016 and 2015 and for each of the three years in the period ended December 31, 2016 and the effectiveness of internal control over financial reporting of Encana Corporation as of December 31, 2016.

/s/ PricewaterhouseCoopers LLP

Chartered Professional Accountants

February 27, 2017

Calgary, Alberta, Canada

 

 

LOGO

 

Exhibit 23.2

 

LOGO

 

 

Encana Corporation

4400, 500 Centre Street S.E.

Calgary, Alberta T2P 2S5

Canada

CONSENT OF INDEPENDENT PETROLEUM ENGINEERS

We hereby consent to the use and reference to our name and reports auditing a portion of Encana Corporation’s petroleum and natural gas reserves as of December 31, 2016 (the “Reports”), and the information derived from our Reports, as described or incorporated by reference in: (i) Encana Corporation’s Annual Report on Form 10-K for the year ended December 31, 2016, (ii) Encana Corporation’s Registration Statement on Form F-3 (File Nos. 333-187492) and (iii) Encana Corporation’s Registration Statements on Form S-8 (File Nos. 333-124218, 333-85598, 333-140856 and 333-188758), filed with the United States Securities and Exchange Commission.

Yours truly,

McDANIEL & ASSOCIATES CONSULTANTS LTD.

 

/s/ P. A. Welch

P. A. Welch, P. Eng.
President & Managing Director

Calgary, Alberta

February 27, 2017

 

 

2200, Bow Valley Square 3, 255 - 5 Avenue SW, Calgary AB T2P 3G6  Tel:  (403) 262-5506  Fax: (403) 233-2744  www.mcdan.com

Exhibit 23.3

 

LOGO

Encana Corporation

4400, 500 Centre Street S.E.

Calgary, Alberta T2P 2S5

Canada

CONSENT OF INDEPENDENT PETROLEUM ENGINEERS

We hereby consent to the use and reference to our name and reports auditing a portion of Encana Corporation’s petroleum and natural gas reserves as of December 31, 2016 (the “Reports”), and the information derived from our Reports, as described or incorporated by reference in: (i) Encana Corporation’s Annual Report on Form 10-K for the year ended December 31, 2016, (ii) Encana Corporation’s Registration Statement on Form F-3 (File Nos. 333-187492) and (iii) Encana Corporation’s Registration Statements on Form S-8 (File Nos. 333-124218, 333-85598, 333-140856 and 333-188758), filed with the United States Securities and Exchange Commission.

 

Sincerely,

 

NETHERLAND, SEWELL & ASSOCIATES, INC.

By:  

/s/ C.H. (Scott) Rees III

  C.H. (Scott) Rees III, P.E.
  Chairman and Chief Executive Officer

Dallas, Texas

February 27, 2017

 

Please be advised that the digital document you are viewing is provided by Netherland, Sewell & Associates, Inc. (NSAI) as a convenience to our clients. The digital document is intended to be substantively the same as the original signed document maintained by NSAI. The digital document is subject to the parameters, limitations, and conditions stated in the original document. In the event of any differences between the digital document and the original document, the original document shall control and supersede the digital document.

 

LOGO

Exhibit 31.1

CERTIFICATION PURSUANT TO RULE 13a-14 OR 15d-14 OF THE SECURITIES EXCHANGE ACT OF 1934, AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, Douglas J. Suttles, certify that:

 

1. I have reviewed this annual report on Form 10-K of Encana Corporation;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

  a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: February 27, 2017

 

/s/ Douglas J. Suttles

Douglas J. Suttles
President & Chief Executive Officer

 

Exhibit 31.2

CERTIFICATION PURSUANT TO RULE 13a-14 OR 15d-14 OF THE SECURITIES EXCHANGE ACT OF 1934, AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, Sherri A. Brillon, certify that:

 

1. I have reviewed this annual report on Form 10-K of Encana Corporation;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

  a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: February 27, 2017

 

/s/ Sherri A. Brillon

Sherri A. Brillon
Executive Vice-President & Chief Financial Officer

 

Exhibit 32.1

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Annual Report of Encana Corporation (the “Company”) on Form 10-K for the period ended December 31, 2016 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Douglas J. Suttles, President & Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:

 

  (1) The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

  (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

/s/ Douglas J. Suttles

Douglas J. Suttles

President & Chief Executive Officer

February 27, 2017

 

Exhibit 32.2

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Annual Report of Encana Corporation (the “Company”) on Form 10-K for the period ended December 31, 2016 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Sherri A. Brillon, Executive Vice-President & Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:

 

  (1) The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

  (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

/s/ Sherri A. Brillon

Sherri A. Brillon
Executive Vice-President & Chief Financial Officer
February 27, 2017

 

Exhibit 99.1

 

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January 30, 2017

Encana Corporation

500 Centre Street SE

Calgary, Alberta

T2G 1A6

 

Attention:   Ms. Katherine Crerar, Director of Reserves
Reference:  

Encana Corporation

December 31, 2016 Reserve Audit Opinion (Canadian Assets)

At the request of Encana Corporation (Encana), McDaniel & Associates Consultants Ltd. (McDaniel) has conducted a reserves audit of the estimates of the proved reserves as of December 31, 2016 associated with Canadian Assets as prepared by Encana’s engineering and geological staff based on the definitions and disclosure guidelines of the United States Securities and Exchange Commission (SEC) contained in Title 17, Code of Federal Regulations, Modernization of Oil and Gas Reporting, Final Rule released January 14, 2009 in the Federal Register (SEC regulations). Our third party reserves audit, completed on January 30, 2017 and presented herein, was prepared for public disclosure by Encana in filings made with the SEC in accordance with the disclosure requirements set forth in the SEC regulations. The estimated reserves shown herein represent Encana’s estimated net reserves attributable to the leasehold and royalty interests and derived through in certain properties owned by Encana and the portion of those reserves reviewed by McDaniel, as of December 31, 2016. The properties reviewed by McDaniel incorporate Encana’s reserve determinations and are attributable to the interests of Encana Corporation.

The properties reviewed by McDaniel account for a portion of Encana’s total net proved reserves as of December 31, 2016. Based on the estimates of total net proved reserves prepared by Encana, the reserves audit conducted by McDaniel addresses 98.1 percent of the total proved developed net liquid hydrocarbon reserves, 94.7 percent of the total proved developed net gas reserves, 100.0 percent of the total proved undeveloped net liquid hydrocarbon reserves, and 100.0 percent of the total proved undeveloped net gas reserves of Encana within Canada. This represented 49 percent of Encana’s total corporate net proved reserves.

The wells or locations for which estimates of reserves were reviewed by McDaniel were selected by Encana. Encana informed McDaniel that the selected reserves for Canada included effectively 100 percent of the total discounted future net income at 10 percent attributable to Canada’s total interests of Encana (coverage) based on SEC hydrocarbon price parameters as of December 31, 2016 given that the two assets not reviewed (Wheatland and Atlantic Canada) carried nil value.

2200, Bow Valley Square 3,  255 - 5 Avenue SW, Calgary AB T2P 3G6  Tel: (403) 262-5506  Fax: (403) 233-2744  www.mcdan.com


Encana Corporation

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December 31, 2016 SEC Reserve Audit Opinion (Canada)

   January 30, 2017

 

 

As prescribed by the Society of Petroleum Engineers in Paragraph 2.2(f) of the Standards Pertaining to the Estimating and Auditing of Oil and Gas Reserves Information (SPE auditing standards), a reserves audit is defined as “the process of reviewing certain of the pertinent facts interpreted and assumptions made that have resulted in an estimate of reserves prepared by others and the rendering of an opinion about (1) the appropriateness of the methodologies employed; (2) the adequacy and quality of the data relied upon; (3) the depth and thoroughness of the reserves estimation process; (4) the classification of reserves appropriate to the relevant definitions used; and (5) the reasonableness of the estimated reserve quantities.”

Based on our review, including the data, technical processes and interpretations presented by Encana, it is our opinion that the overall procedures and methodologies utilized by Encana in preparing their estimates of the proved reserves as of December 31, 2016 comply with the current SEC regulations and that the overall proved reserves for the reviewed properties as estimated by Encana are, in the aggregate, reasonable within the established audit tolerance guidelines of 10 percent as set forth in the SPE auditing standards.

The scope of the audit consisted of the independent preparation of our own estimates of the proved reserves and the comparison of our proved reserve results to the estimates prepared by the company. When compared on a field by field basis, some estimates prepared by Encana are greater than and some are less than those prepared by McDaniel. However, in our opinion, the estimates prepared by Encana are in aggregate reasonable, are within the established audit tolerance of plus or minus 10 percent and the estimates have been prepared in accordance with generally accepted petroleum engineering practices and procedures. These practices and procedures are detailed within the Canadian Oil and Gas Evaluation Handbook (COGEH), set out by the Society of Petroleum Evaluation Engineers (SPEE) as well as the Society of Petroleum Engineers’ (SPE) Standards Pertaining to the Estimation and Auditing of Oil and Gas Reserves. We believe that such assumptions, data, methods, and procedures are appropriate for the purpose served by the report. For the purpose of this audit only deterministic methods were used. The proved reserve estimates prepared by both Encana and McDaniel conform to the reserve definitions as set forth in the SEC’s Regulation S-X Part 210.4-10(a) and as clarified in subsequent Commission Staff Accounting Bulletins. We believe that such assumptions, data, methods, and procedures are appropriate for the purpose served by the report.

The estimated reserves presented in this report are related to hydrocarbon prices. Encana has informed us that in the preparation of their reserve and income projections, as of December 31, 2016, they used average prices during the 12-month period prior to the “as of date” of this report, determined as the unweighted arithmetic averages of the prices in effect on the first-day-of-the-month for each month within such period, unless prices were defined by contractual arrangements, as required by the SEC regulations. Actual future prices may vary significantly from the prices required by SEC regulations; therefore, volumes of reserves actually recovered may differ significantly from the estimated quantities presented in this report. The net reserves as estimated by Encana attributable to Encana’s interest and entitlement in properties that we reviewed and the reserves of properties that we did not review are summarized as follows:

 

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Encana Corporation

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December 31, 2016 SEC Reserve Audit Opinion (Canada)

   January 30, 2017

 

 

SEC PARAMETERS

Estimated Net Proved Reserves

Certain Leasehold and Royalty Interests and

Derived Through Certain Production Sharing Contracts of

Encana Corporation (Total All Regions)

As of December 31, 2016

 

    % Crude
Oil
Reserves
Reviewed
    % Natural
Gas
Liquids
Reserves
Reviewed
    % Gas
Reserves
Reviewed
    Reviewed by McDaniel     Not Reviewed     Total  
                      Crude Oil
MBarrels
    Natural
Gas
Liquids
MBarrels
    Sales
Gas
MMCF
    Crude Oil
MBarrels
    Natural
Gas
Liquids
MBarrels
    Sales
Gas
MMCF
    Crude Oil
MBarrels
    Natural
Gas
Liquids
MBarrels
    Sales
Gas
MMCF
 

Developed

    2.9       98.1       94.7       1       25,095       854,850       20       487       47,846       21       25,582       902,696  

Undeveloped

    100.0       100.0       100.0       0       68,412       906,963       0       0       0       0       68,412       906,963  

Total Proved

    2.9       99.5       97.4       1       93,507       1,761,812       20       487       47,846       21       93,994       1,809,659  

Liquid hydrocarbons are expressed in standard 42 gallon barrels and shown herein as thousand of barrels (MBarrels). All gas volumes are reported on an “as sold basis” expressed in millions of cubic feet (MMCF) at the official temperature and pressure bases of the areas in which the gas reserves are located.

Reserves Included in This Report

In our opinion, the proved reserves presented in this report conform to the definition as set forth in the Securities and Exchange Commission’s Regulations Part 210.4-10(a).

The various proved reserve status categories are defined under the attachment entitled “Petroleum Reserves Status Definitions and Guidelines” in this report. The proved developed non-producing reserves included herein consist of the shut-in and behind pipe categories.

Reserves are “estimated remaining quantities of oil and gas and related substances anticipated to be economically producible, as of a given date, by application of development projects to known accumulations.” All reserve estimates involve an assessment of the uncertainty relating the likelihood that the actual remaining quantities recovered will be greater or less than the estimated quantities determined as of the date the estimate is made. The uncertainty depends chiefly on the amount of reliable geologic and engineering data available at the time of the estimate and the interpretation of these data. The relative degree of uncertainty may be conveyed by placing reserves into one of two principal classifications, either proved or unproved. Unproved reserves are less certain to be recovered than proved reserves and may be further sub-classified as probable and possible reserves to denote progressively increasing uncertainty in their recoverability.

Proved oil and gas reserves are “those quantities of oil and gas which, by analysis of geoscience and engineering data, can be estimated with reasonable certainty to be economically producible from a given date forward.” The proved reserves included herein were estimated using deterministic methods. The SEC has defined reasonable certainty for proved reserves, when based on deterministic methods, as a “high degree of confidence that the quantities will be recovered.”

Proved reserve estimates will generally be revised only as additional geologic or engineering data become available or as economic conditions change. For proved reserves, the SEC states that “as changes due to increased availability of geoscience (geological, geophysical, and geochemical), engineering, and

 

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Encana Corporation

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December 31, 2016 SEC Reserve Audit Opinion (Canada)

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economic data are made to the estimated ultimate recovery (EUR) with time, reasonably certain EUR is much more likely to increase or remain constant than to decrease.” Moreover, estimates of proved reserves may be revised as a result of future operations, effects of regulation by governmental agencies or geopolitical or economic risks. Therefore, the proved reserves included in this report are estimates only and should not be construed as being exact quantities, and if recovered, could be more or less than the estimated amounts.

Audit Data, Methodology, Procedure and Assumptions

The estimation of reserves involves two distinct determinations. The first determination results in the estimation of the quantities of recoverable oil and gas and the second determination results in the estimation of the uncertainty associated with those estimated quantities in accordance with the definitions set forth by the Securities and Exchange Commission’s Regulations Part 210.4-10(a). The process of estimating the quantities of recoverable oil and gas reserves relies on the use of certain generally accepted analytical procedures. These analytical procedures fall into three broad categories or methods: (1) performance-based methods; (2) volumetric-based methods; and (3) analogy. These methods may be used singularly or in combination by the reserve evaluator in the process of estimating the quantities of reserves. Reserve evaluators must select the method or combination of methods which in their professional judgment is most appropriate given the nature and amount of reliable geoscience and engineering data available at the time of the estimate, the established or anticipated performance characteristics of the reservoir being evaluated and the stage of development or producing maturity of the property.

McDaniel has prepared its report in accordance with SEC Regulation S-K, 229.1202 and Regulation S-X, 210.4-10.

A “Reserves Audit” is the process carried out by a qualified reserves auditor that results in a reasonable assurance, in the form of an opinion, that the reserves information has in all material respects been determined and presented according to the principles and definitions adopted by the Society of Petroleum Evaluation Engineers (“SPEE”) (Calgary Chapter), and Association of Professional Engineers and Geoscientists of Alberta (“APEGA”) and are, therefore free of material misstatement.

The reserves evaluations prepared by the Corporation have been audited, not for the purpose of verifying exactness, but the reserves information, company policies, procedures, and methods used in estimating the reserves will be examined in sufficient detail so that McDaniel can express an opinion as to whether, in the aggregate, the reserves information presented by the Corporation are reasonable.

For this Audit McDaniel performed its own independent evaluation of the reserves for greater than 95 percent of the booked total proved reserves to test for reasonableness of the Corporation’s evaluations.

In many cases, the analysis of the available geoscience and engineering data and the subsequent interpretation of this data may indicate a range of possible outcomes in an estimate, irrespective of the method selected by the evaluator. When a range in the quantity of reserves is identified, the evaluator must determine the uncertainty associated with the incremental quantities of the reserves. If the reserve quantities are estimated using the deterministic incremental approach, the uncertainty for each discrete incremental quantity of the reserves is addressed by the reserve category assigned by the evaluator.

 

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Encana Corporation

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December 31, 2016 SEC Reserve Audit Opinion (Canada)

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Therefore, it is the categorization of reserve quantities as proved, probable and/or possible that addresses the inherent uncertainty in the estimated quantities reported. For proved reserves, uncertainty is defined by the SEC as reasonable certainty wherein the “quantities actually recovered are much more likely than not to be achieved.” The SEC states that “probable reserves are those additional reserves that are less certain to be recovered than proved reserves but which, together with proved reserves, are as likely as not to be recovered.” The SEC states that “possible reserves are those additional reserves that are less certain to be recovered than probable reserves and the total quantities ultimately recovered from a project have a low probability of exceeding proved plus probable plus possible reserves.” All quantities of reserves within the same reserve category must meet the SEC definitions as noted above.

Estimates of reserves quantities and their associated reserve categories may be revised in the future as additional geoscience or engineering data become available. Furthermore, estimates of reserves quantities and their associated reserve categories may also be revised due to other factors such as changes in economic conditions, results of future operations, effects of regulation by governmental agencies or geopolitical or economic risks as previously noted herein.

The proved reserves, prepared by Encana, for the properties that we reviewed were estimated by performance methods, the volumetric method, analogy, or a combination of methods. Greater than 90 percent of the proved producing reserves attributable to producing wells and/or reservoirs that we reviewed were estimated by performance methods or a combination of methods. These performance methods include, but may not be limited to, decline curve analysis, material balance and/or reservoir simulation which utilized extrapolations of historical production and pressure data available through November 2016, in those cases where such data were considered to be definitive. The data utilized in this analysis were furnished to McDaniel by Encana or obtained from public data sources and were considered sufficient for the purpose thereof. Certain proved producing reserves that we reviewed were estimated by the volumetric method, analogy, or a combination of methods. These methods were used where there were inadequate historical performance data to establish a definitive trend and where the use of production performance data as a basis for the reserve estimates was considered to be inappropriate.

Approximately 100 percent of the proved developed non-producing and undeveloped reserves that we reviewed were estimated by the volumetric method or analogy. The volumetric analysis utilized pertinent well data furnished to McDaniel by Encana for our review or which we have obtained from public data sources that were available through November 2016. The data utilized from the analogues in conjunction with well data incorporated into the volumetric analysis were considered sufficient for the purpose thereof.

To estimate economically recoverable proved oil and gas reserves, many factors and assumptions are considered including, but not limited to, the use of reservoir parameters derived from geological, geophysical and engineering data which cannot be measured directly, economic criteria based on current costs and SEC pricing requirements, and forecasts of future production rates. Under the SEC regulations 210.4-10(a)(22)(v) and (26), proved reserves must be anticipated to be economically producible from a given date forward based on existing economic conditions including the prices and costs at which economic producibility from a reservoir is to be determined. While it may reasonably be anticipated that the future prices received for the sale of production and the operating costs and other costs relating to such production

 

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December 31, 2016 SEC Reserve Audit Opinion (Canada)

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may increase or decrease from those under existing economic conditions, such changes were, in accordance with rules adopted by the SEC, omitted from consideration in conducting this review.

As stated previously, proved reserves must be anticipated to be economically producible from a given date forward based on existing economic conditions including the prices and costs at which economic producibility from a reservoir is to be determined. To confirm that the proved reserves reviewed by us meet the SEC requirements to be economically producible, we have reviewed certain primary economic data utilized by Encana relating to hydrocarbon prices and costs as noted herein.

The hydrocarbon prices furnished by Encana for the properties reviewed by us are based on SEC price parameters using the average prices during the 12-month period prior to the “as of date” of this report, determined as the unweighted arithmetic averages of the prices in effect on the first-day-of-the-month for each month within such period, unless prices were defined by contractual arrangements.

The initial SEC hydrocarbon prices in effect on December 31, 2016 for the properties reviewed by us were determined using the 12-month average first-day-of-the-month benchmark prices appropriate to the geographic area where the hydrocarbons are sold. These benchmark prices are prior to the adjustments for differentials as described herein. The table below summarizes the “benchmark prices” and “price reference” used by Encana for the geographic areas reviewed by us. In certain geographic areas, the price reference and benchmark prices may be defined by contractual arrangements.

The product prices which were actually used by Encana to determine the future gross revenue for each property reviewed by us reflect adjustments to the benchmark prices for gravity, quality, local conditions, and/or distance from market, referred to herein as “differentials.” The differentials used by Encana were accepted as factual data and reviewed by us for their reasonableness based on a review of historical lease operating statements and marketing agreements.

The table below summarizes Encana’s net volume weighted benchmark prices adjusted for differentials for the properties reviewed by us and referred to herein as Encana’s “average realized prices.” The average realized prices shown in the table below were determined from Encana’s estimate of the total future gross revenue before production taxes for the properties reviewed by us and Encana’s estimate of the total net reserves for the properties reviewed by us for the geographic area. The data shown in the table on the following page is presented in accordance with SEC disclosure requirements for each of the geographic areas reviewed by us.

 

Geographic Area

  

Product

  

Price Reference

  

Average Benchmark
Prices

  

Average Realized Prices

Canada

  

Oil

  

Edmonton Light

  

C$52.21/bbl

  

C$46.88/bbl

  

NGLs

  

Edmonton Light

  

C$52.21/bbl

  

C$35.93/bbl

  

Gas

  

AECO

  

C$2.17/MMBtu

  

C$2.03/Mcf

 

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Encana Corporation

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December 31, 2016 SEC Reserve Audit Opinion (Canada)

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The effects of derivative instruments designated as price hedges of oil and gas quantities are not reflected in Encana’s individual property evaluations.

Accumulated gas production imbalances, if any, were not taken into account in the proved gas reserve estimates reviewed. The proved gas volumes presented herein do not include volumes of gas consumed in operations as reserves.

Operating costs furnished by Encana are based on the operating expense reports of Encana and include only those costs directly applicable to the leases or wells for the properties reviewed by us. The operating costs include a portion of general and administrative costs allocated directly to the leases and wells. For operated properties, the operating costs include an appropriate level of corporate general administrative and overhead costs. The operating costs for non-operated properties include the COPAS overhead costs that are allocated directly to the leases and wells under terms of operating agreements. Other costs include transportation and/or processing fees as deductions. The operating costs furnished by Encana were accepted as factual data and reviewed by us for their reasonableness; however, we have not conducted an independent verification of the data used by Encana. No deduction was made for loan repayments, interest expenses, or exploration and development prepayments that were not charged directly to the leases or wells.

Development costs furnished by Encana are based on authorizations for expenditure for the proposed work or actual costs for similar projects. The development costs furnished by Encana were accepted as factual data and reviewed by us for their reasonableness; however, we have not conducted an independent verification of the data used by Encana. The estimated net cost of abandonment after salvage was included by Encana for properties where abandonment costs net of salvage were significant. Encana’s estimates of the net abandonment costs were accepted without independent verification.

The proved developed non-producing and undeveloped reserves for the properties reviewed by us have been incorporated herein in accordance with Encana’s plans to develop these reserves as of December 31, 2016. The implementation of Encana’s development plans as presented to us is subject to the approval process adopted by Encana’s management. As the result of our inquiries during the course of our review, Encana has informed us that the development activities for the properties reviewed by us have been subjected to and received the internal approvals required by Encana’s management at the appropriate local, regional and/or corporate level. In addition to the internal approvals as noted, certain development activities may still be subject to specific partner AFE processes, Joint Operating Agreement (JOA) requirements or other administrative approvals external to Encana. Additionally, Encana has informed us that they are not aware of any legal, regulatory or political obstacles that would significantly alter their plans. While these plans could change from those under existing economic conditions as of December 31, 2016, such changes were, in accordance with rules adopted by the SEC, omitted from consideration in making this evaluation.

Current costs used by Encana were held constant throughout the life of the properties.

Encana’s forecasts of future production rates are based on historical performance from wells currently on production. If no production decline trend has been established, future production rates were held constant, or adjusted for the effects of curtailment where appropriate, until a decline in ability to produce was

 

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anticipated. An estimated rate of decline was then applied to depletion of the reserves. If a decline trend has been established, this trend was used as the basis for estimating future production rates.

Test data and other related information were used by Encana to estimate the anticipated initial production rates for those wells or locations that are not currently producing. For reserves not yet on production, sales were estimated to commence at an anticipated date furnished by Encana. Wells or locations that are not currently producing may start producing earlier or later than anticipated in Encana’s estimates due to unforeseen factors causing a change in the timing to initiate production. Such factors may include delays due to weather, the availability of rigs, the sequence of drilling, completing and/or recompleting wells and/or constraints set by regulatory bodies.

The future production rates from wells currently on production or wells or locations that are not currently producing may be more or less than estimated because of changes including, but not limited to, reservoir performance, operating conditions related to surface facilities, compression and artificial lift, pipeline capacity and/or operating conditions, producing market demand and/or allowables or other constraints set by regulatory bodies.

The proved reserves reported herein are limited to the period prior to expiration of current contracts providing the legal right to produce or a revenue interest in such production unless evidence indicates that contract renewal is reasonably certain.

The estimates of proved reserves presented herein were based upon a review of the properties in which Encana owns and derives an interest; however, we have not made any field examination of the properties. No consideration was given in this report to potential environmental liabilities that may exist nor were any costs included by Encana for potential liabilities to restore and clean up damages, if any, caused by past operating practices.

Encana has informed us that they have furnished us all of the material accounts, records, geological and engineering data, and reports and other data required for this investigation. In performing our audit of Encana’s forecast of future proved production, we have relied upon data furnished by Encana with respect to property interests owned or derived, production and well tests from examined wells, normal direct costs of operating the wells or leases, other costs such as transportation and/or processing fees, ad valorem and production taxes, recompletion and development costs, development plans, abandonment costs after salvage, product prices based on the SEC regulations, adjustments or differentials to product prices, geological structural and isochore maps, well logs, core analyses, and pressure measurements. McDaniel reviewed such factual data for its reasonableness; however, we have not conducted an independent verification of the data furnished by Encana. We consider the factual data furnished to us by Encana to be appropriate and sufficient for the purpose of our review of Encana’s estimates of reserves. In summary, we consider the assumptions, data, methods and analytical procedures used by Encana and as reviewed by us appropriate for the purpose hereof, and we have used all such methods and procedures that we consider necessary and appropriate under the circumstances to render the conclusions set forth herein.

 

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Audit Opinion

Based on our review, including the data, technical processes and interpretations presented by Encana, it is our opinion that the overall procedures and methodologies utilized by Encana in preparing their estimates of the proved reserves as of December 31, 2016 comply with the current SEC regulations and that the overall proved reserves for the reviewed properties as estimated by Encana are, in the aggregate, reasonable within the established audit tolerance guidelines of 10 percent as set forth in the SPE auditing standards.

We were in reasonable agreement with Encana’s estimates of proved reserves for the properties which we reviewed; although in certain cases there was more than an acceptable variance between Encana’s estimates and our estimates due to a difference in interpretation of data or due to our having access to data which were not available to Encana when its reserve estimates were prepared. However not withstanding, it is our opinion that on an aggregate basis the data presented herein for the properties that we reviewed fairly reflects the estimated net reserves owned by Encana.

Other Properties

Other properties, as used herein, are those properties of Encana which we did not review. The proved net reserves attributable to the other properties account for 2.0 percent of the total proved developed net liquid hydrocarbon reserves, 5.5 percent of the total proved developed net gas reserves, 0.0 percent of the total proved undeveloped net liquid hydrocarbon reserves, and 0.0 percent of the total proved undeveloped net gas reserves based on estimates prepared by Encana as of December 31, 2016. The other properties represent 0 percent of the total proved discounted future net income at 10 percent based on the unescalated pricing policy of the SEC as taken from reserve and income projections prepared by Encana as of December 31, 2016.

The same technical personnel of Encana were responsible for the preparation of the reserve estimates for the properties that we reviewed as well as for the properties not reviewed by McDaniel.

Standards of Independence and Professional Qualification

McDaniel is an independent petroleum engineering consulting firm that has been providing petroleum consulting services throughout the world since 1955. McDaniel is maintains offices in Calgary, Alberta, Canada and Guildford, Surrey, United Kingdom. We have over 50 engineers, geoscientists and technicians on our permanent staff. By virtue of the size of our firm and the large number of clients for which we provide services, no single client or job represents a material portion of our annual revenue.

We do not serve as officers or directors of any privately-owned or publicly-traded oil and gas company and are separate and independent from the operating and investment decision-making process of our clients. This allows us to bring the highest level of independence and objectivity to each engagement for our services.

McDaniel actively participates in industry-related professional societies and routinely presents at conferences on the subject of reserves evaluations and SEC regulations. We encourage our staff to maintain and enhance their professional skills by actively participating in ongoing continuing education.

 

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Encana Corporation

   Page 10

December 31, 2016 SEC Reserve Audit Opinion (Canada)

   January 30, 2017

 

 

Prior to becoming an officer of the Company, McDaniel requires that staff engineers and geoscientists have received professional accreditation in the form of a registered or certified professional engineer’s license or a registered or certified professional geoscientist’s license, or the equivalent thereof, from an appropriate governmental authority or a recognized self-regulating professional organization.

We are independent with respect to the company as provided in the standards pertaining to the estimating and auditing of oil and gas reserves information included in COGEH and the Association of Professional Engineers and Geoscientists’ of Alberta (APEGA). Neither we nor any of our employees have any financial interest in the subject properties, and neither the employment to do this work nor the compensation is contingent on our estimates of reserves for the properties which were reviewed.

The results of this audit, presented herein, are based on technical analysis conducted by teams of geoscientists and engineers from McDaniel. The professional qualifications of the undersigned, the technical person primarily responsible for overseeing the review of the reserves information discussed in this report, are included as an attachment to this letter.

Terms of Usage

The results of our third party audit, presented in report form herein, were prepared in accordance with the disclosure requirements set forth in the SEC regulations and intended for public disclosure as an exhibit in filings made with the SEC by Encana Corporation.

Encana makes annual filings on Form 10-K with the SEC under the 1934 Exchange Act. Furthermore, Encana has certain registration statements filed with the SEC under the 1933 Securities Act into which any subsequently filed Form 10-K is incorporated by reference. We have consented to the incorporation by reference in the registration statements on Form F-3 and Form S-8 of Encana of the references to our name as well as to the references to our third party report for Encana, which appears in the December 31, 2016 annual report on Form 10-K of Encana. Our written consent for such use is included as a separate exhibit to the filings made with the SEC by Encana.

We have provided Encana with a digital version of the original signed copy of this report letter. In the event there are any differences between the digital version included in filings made by Encana and the original signed report letter, the original signed report letter shall control and supersede the digital version.

The data and work papers used in the preparation of this report are available for examination by authorized parties in our offices. Please contact us if we can be of further service.

Sincerely,

McDANIEL & ASSOCIATES CONSULTANTS LTD.

APEGA PERMIT NUMBER: P3145

 

/s/ B. R. Hamm

B. R. Hamm, P. Eng.

Executive Vice President

 

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Encana Corporation

   Page 11

December 31, 2016 SEC Reserve Audit Opinion (Canada)

   January 30, 2017

 

 

CERTIFICATE OF QUALIFICATION

I, Brian R. Hamm, Petroleum Engineer of 2200, 255 - 5th Avenue, S.W., Calgary, Alberta, Canada hereby certify:

 

1. That I am an Executive Vice President of McDaniel & Associates Consultants Ltd., APEGA Permit Number P3145, which Company did prepare, at the request of Encana Corporation an evaluation of certain oil and gas assets, As of December 31, 2016”, dated January 30, 2017, and that I was involved in the preparation of this report.

 

2. That I attended the University of Calgary in the years 2001 to 2006 and that I graduated with a Bachelor of Science degree in Mechanical Engineering, that I am a registered Professional Engineer with the Association of Professional Engineers and Geoscientists of Alberta and that I have in excess of 10 years of experience in oil and gas reservoir studies and evaluations.

 

3. That I have no direct or indirect interest in the properties or securities of Encana Corporation, nor do I expect to receive any direct or indirect interest in the properties or securities of Encana Corporation, or any affiliate thereof.

 

4. That the aforementioned report was not based on a personal field examination of the properties in question, however, such an examination was not deemed necessary in view of the extent and accuracy of the information available on the properties in question.

 

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/s/ B. R. Hamm

 

B. R. Hamm, P. Eng.

Calgary, Alberta

Dated: January 30, 2017

 

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Exhibit 99.2

 

 

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February 6, 2017

Encana Corporation

500 Centre Street SE

P.O. Box 2850

Calgary, Alberta T2G 1A6

Canada

Ladies and Gentlemen:

In accordance with your request, we have audited the estimates prepared by Encana Corporation (Encana), as of December 31, 2016, of the proved reserves and future revenue to the Encana interest in certain oil and gas properties located in the United States. It is our understanding that the proved reserves estimated herein constitute approximately half of all proved reserves owned by Encana. We have examined the estimates with respect to reserves quantities, reserves categorization, future producing rates, future net revenue, and the present value of such future net revenue, using the definitions set forth in U.S. Securities and Exchange Commission (SEC) Regulation S-X Rule 4-10(a). The estimates of reserves and future revenue have been prepared in accordance with the definitions and regulations of the SEC and conform to the FASB Accounting Standards Codification Topic 932, Extractive Activities—Oil and Gas. We completed our audit on or about the date of this letter. This report has been prepared for Encana’s use in filing with the SEC; in our opinion the assumptions, data, methods, and procedures used in the preparation of this report are appropriate for such purpose.

The following table sets forth Encana’s estimates of the net reserves, as of December 31, 2016, for the audited properties:

 

     Net Reserves  

Category

   Oil
(MMBBL)
     NGL
(MMBBL)
     Gas
(BCF)
 

Proved Developed Producing

     82.5         31.8         950.8   

Proved Undeveloped

     73.1         24.6         141.9   
  

 

 

    

 

 

    

 

 

 

Total Proved

     155.6         56.4         1,092.7   

The oil volumes shown include crude oil and condensate. Oil and natural gas liquids (NGL) volumes are expressed in millions of barrels (MMBBL); a barrel is equivalent to 42 United States gallons. Gas volumes are expressed in billions of cubic feet (BCF) at standard temperature and pressure bases. As requested, estimates of future net revenue are not included herein.

When compared on a well-by-well basis, some of the estimates of Encana are greater and some are less than the estimates of Netherland, Sewell & Associates, Inc. (NSAI). However, in our opinion the estimates shown herein of Encana’s reserves are reasonable when aggregated at the proved level and have been prepared in accordance with the Standards Pertaining to the Estimating and Auditing of Oil and Gas Reserves Information promulgated by the Society of Petroleum Engineers (SPE Standards). Additionally, these estimates are within the recommended 10 percent tolerance threshold set forth in the SPE Standards. We are satisfied with the methods and procedures used by Encana in preparing the December 31, 2016, estimates of reserves and future revenue, and we saw nothing of an unusual nature that would cause us to take exception with the estimates, in the aggregate, as prepared by Encana.

The estimates shown herein are for proved developed producing and proved undeveloped reserves. Encana’s estimates do not include proved developed non-producing, probable, or possible reserves that may exist for these properties, nor do they include any value for undeveloped acreage beyond those tracts for which undeveloped reserves have been estimated. Encana has included estimates of proved undeveloped reserves for certain

 

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locations that generate positive future net revenue but have negative present worth discounted at 10 percent based on the constant prices and costs discussed in subsequent paragraphs of this letter. These locations have been included based on the declared intent of Encana, the operator, to drill these wells, as evidenced by its internal budget, reserves estimates, and price forecast. Reserves categorization conveys the relative degree of certainty; reserves subcategorization is based on development and production status. The estimates of reserves included herein have not been adjusted for risk.

Prices used by Encana are based on the 12-month unweighted arithmetic average of the first-day-of-the-month price for each month in the period January through December 2016. For oil volumes, the average ICE West Texas Intermediate (WTI), Argus Light Louisiana Sweet (LLS), or Argus Midland Cushing (Midland) price is adjusted by property group for quality, transportation fees, and market differentials. For NGL volumes, the average Oil Price Information Service Mont Belvieu NGL product prices are weight-averaged by processing area using NGL product recovery factors; the average prices are adjusted for quality, transportation fees, and fractionation fees. For gas volumes, the average ICE regional prices are adjusted for market differentials, energy content, and gathering, processing, and transportation fees. All prices are held constant throughout the lives of the properties. The average adjusted product prices weighted by production over the remaining lives of the properties are $39.06 per barrel of oil, $13.63 per barrel of NGL, and $1.55 per MCF of gas. Oil and gas index prices and average realized oil, NGL, and gas prices are shown for each property group in the following tables:

 

Operating Area/

Property Group

   Oil
Pricing
Index
     Average
Oil Price
($/Barrel)
     Average
Realized
Oil Price
($/Barrel)
     NGL
Pricing
Index
   Average
Realized
NGL Price
($/Barrel)
 

Southern Operations

              

Permian

     Midland         41.45         40.50       Mont Belvieu      13.31   

Western Operations

              

Eagle Ford

     LLS         43.22         37.80       Mont Belvieu      15.00   

Wind River (1)

     WTI         42.75         35.10            —     

San Juan

     WTI         42.75         32.75       Mont Belvieu      12.24   

Piceance

     WTI         42.75         37.00       Mont Belvieu      15.24   

Tuscaloosa Marine Shale (1)

     LLS         43.22         41.23            —     

 

(1)   There are no NGL reserves for these property groups.

 

Operating Area/

Property Group

   Gas Pricing Index      Average
Gas Price
($/MMBTU)
     Average
Realized
Gas Price
($/MCF)
 

Southern Operations

        

Permian

     Waha         2.37         1.23   

Western Operations

        

Eagle Ford

     Houston Ship Channel         2.45         1.23   

Wind River

     CIG Rocky Mountains         2.27         2.15   

San Juan

     El Paso San Juan Basin         2.33         0.30   

Piceance

     NWPL Rocky Mountain Pool         2.26         1.70   

Tuscaloosa Marine Shale (1)

             —           —     

 

(1) There are no gas reserves for this property group.

Operating costs used by Encana are based on historical operating expense records. For the nonoperated properties, these costs include the per-well overhead expenses allowed under joint operating agreements along


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with estimates of costs to be incurred at and below the district and field levels. Operating costs for the operated properties are limited to direct lease- and field-level costs and Encana’s estimate of the portion of its headquarters general and administrative overhead expenses necessary to operate the properties. Operating costs have been divided into per-well costs and per-unit-of-production costs. Capital costs used by Encana are based on authorizations for expenditure and actual costs from recent activity. Capital costs are included as required for maintenance on existing wells, new development wells, and production equipment. Operating costs and capital costs are not escalated for inflation. Encana’s estimates of future revenue do not include any salvage value for the lease and well equipment or the cost of abandoning the properties.

Encana’s estimates of future revenue also include the impact of three existing gathering and transportation commitments: Mid-America Pipeline (MAPL) NGL transportation, Summit gas gathering in Mamm Creek Field, and Summit gas gathering in Orchard Field. Encana has modeled the fees associated with the utilized portion of these commitments as a gas price deduction; the costs associated with the unutilized portion of these commitments have been modeled as additional operating expenses. It is our understanding that although additional firm transportation contracts are in place for the Piceance properties, the associated costs are considered by Encana to be beyond the tailgate of the plant and above the actual cost required to reach the market associated with the reference price; therefore, no adjustments have been made to Encana’s estimates of future revenue to account for contracts beyond the three previously described.

The reserves shown in this report are estimates only and should not be construed as exact quantities. Proved reserves are those quantities of oil and gas which, by analysis of engineering and geoscience data, can be estimated with reasonable certainty to be economically producible; probable and possible reserves are those additional reserves which are sequentially less certain to be recovered than proved reserves. Estimates of reserves may increase or decrease as a result of market conditions, future operations, changes in regulations, or actual reservoir performance. In addition to the primary economic assumptions discussed herein, estimates of Encana and NSAI are based on certain assumptions including, but not limited to, that the properties will be developed consistent with current development plans as provided to us by Encana, that the properties will be operated in a prudent manner, that no governmental regulations or controls will be put in place that would impact the ability of the interest owner to recover the reserves, and that projections of future production will prove consistent with actual performance. If the reserves are recovered, the revenues therefrom and the costs related thereto could be more or less than the estimated amounts. Because of governmental policies and uncertainties of supply and demand, the sales rates, prices received for the reserves, and costs incurred in recovering such reserves may vary from assumptions made while preparing these estimates.

Our audit consisted primarily of substantive testing, wherein we conducted a detailed review of all properties. In the conduct of our audit, we have not independently verified the accuracy and completeness of information and data furnished by Encana with respect to ownership interests, oil and gas production, well test data, historical costs of operation and development, product prices, or any agreements relating to current and future operations of the properties and sales of production. However, if in the course of our examination something came to our attention that brought into question the validity or sufficiency of any such information or data, we did not rely on such information or data until we had satisfactorily resolved our questions relating thereto or had independently verified such information or data. Our audit did not include a review of Encana’s overall reserves management processes and practices.

We used standard engineering and geoscience methods, or a combination of methods, including performance analysis and analogy, that we considered to be appropriate and necessary to establish the conclusions set forth herein. As in all aspects of oil and gas evaluation, there are uncertainties inherent in the interpretation of engineering and geoscience data; therefore, our conclusions necessarily represent only informed professional judgment.

Supporting data documenting this audit, along with data provided by Encana, are on file in our office. The technical persons primarily responsible for conducting this audit meet the requirements regarding qualifications, independence, objectivity, and confidentiality set forth in the SPE Standards. Craig Adams, a Licensed Professional Engineer in the State of Texas, has been practicing consulting petroleum engineering at NSAI since 1997 and has over 11 years of prior industry experience. Phil Hodgson, a Licensed Professional Geoscientist in the State of


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Texas, has been practicing consulting petroleum geoscience at NSAI since 1998 and has over 14 years of prior industry experience. We are independent petroleum engineers, geologists, geophysicists, and petrophysicists; we do not own an interest in these properties nor are we employed on a contingent basis.

 

     Sincerely,
     NETHERLAND, SEWELL & ASSOCIATES, INC.
     Texas Registered Engineering Firm F-2699
     By:   

/s/ C.H. (Scott) Rees III

        C.H. (Scott) Rees III, P.E.
        Chairman and Chief Executive Officer
By:  

/s/ Craig H. Adams

   By:   

/s/ Philip R. Hodgson

  Craig H. Adams, P.E. 68137       Philip R. Hodgson, P.G. 1314
  Senior Vice President       Vice President
Date Signed: February 6, 2017    Date Signed: February 6, 2017
CHA:JPB      

 

Please be advised that the digital document you are viewing is provided by Netherland, Sewell & Associates, Inc. (NSAI) as a convenience to our clients. The digital document is intended to be substantively the same as the original signed document maintained by NSAI. The digital document is subject to the parameters, limitations, and conditions stated in the original document. In the event of any differences between the digital document and the original document, the original document shall control and supersede the digital document.