Common use of Tax Related Covenants Clause in Contracts

Tax Related Covenants. (a) Each Party covenants and agrees with and in favour of each other Party that: (i) it and any successor thereto will not, on or before the Effective Date, perform any act or enter into any transaction or permit any transaction within its control to occur that could reasonably be considered to interfere or be inconsistent with the Tax Rulings; (ii) neither it nor any successor thereto will perform any act or enter into any transaction or permit any transaction, in each such case, within its control to occur that would cause EnCana or any Affiliate of EnCana that is a corporation to cease to be a Specified Corporation on or prior to the Effective Date, except as contemplated herein or in the Tax Rulings or Rulings Applications; and (iii) it and any successor thereto will fulfill, and will cause any Person Controlled, after the Effective Date, by it, to fulfill, all representations or undertakings provided by it, or on its behalf and made with its knowledge and consent, in the Rulings Applications or otherwise provided in writing to the CRA, the IRS or tax counsel in connection with the Tax Rulings. (b) Each Party covenants and agrees with and in favour of each other Party that it will not (and that it will cause its Subsidiaries to not) take any actions, omit to take any action, or enter into any transaction that could cause the Arrangement or any related transaction to be taxed in a manner inconsistent with that provided for in the Tax Rulings without: (i) obtaining a supplementary tax ruling or an opinion of a nationally recognized accounting firm or law firm that such actions, omissions or transactions will not have such effect in respect of the Tax Rulings; and (ii) for a period of three years after the Effective Date, obtaining the consent of EnCana and Cenovus, such consent not to be unreasonably withheld or delayed. (c) Each Party covenants and agrees with and in favour of each other Party to file its tax returns and make all other filings, notifications, designations and elections, including Section 85 elections, pursuant to the Tax Act and to make adjustments to its stated capital accounts in accordance with the terms of the Plan of Arrangement following the Effective Date. Where an agreed amount is to be included in any such election, such amount will be within the range contemplated by the Tax Act (or applicable provincial or foreign legislation) and will be the amount contemplated by the Tax Rulings, the Plan of Arrangement and this Agreement. (d) Each Party covenants and agrees with and in favour of each other Party to cooperate in the preparation and filing, in the form and within the time limits prescribed or otherwise contemplated in the Tax Act, of all tax returns, filings, notifications, designations and elections under the Tax Act as contemplated in the Rulings Application, Tax Rulings, the Plan of Arrangement and this Agreement (and any similar tax returns, elections, notifications or designations that may be required under applicable provincial or foreign legislation).

Tax Related Covenants. (a) Each Party covenants BHC and agrees with and in favour of each other Party thatB+L shall: (i) it and any successor thereto will not, on or before the Effective Date, take or perform or fail to take or perform any act or enter act, including entering into any transaction or permit permitting any act or transaction within its control to occur that be taken or performed or to occur, that, in each case, could reasonably be considered to interfere or be inconsistent with the Tax RulingsRuling; (ii) neither it nor any successor thereto will not take or perform or fail to take or perform any act or enter act, including entering into any transaction or permit permitting any transaction, in each such case, act or transaction within its control to occur be taken or performed or to occur, in each case, that would cause EnCana or any Affiliate of EnCana that is a corporation BHC to cease to be a Specified Corporation on or prior to the Effective Date, except as specifically contemplated herein or by this Agreement and in the Tax Rulings or Rulings ApplicationsRuling; and (iii) it and any successor thereto will fulfill, and will cause any Person Controlled, after the Effective Date, by it, to fulfill, fulfill all representations or and undertakings provided by itit (or by any of its subsidiaries), or on its behalf and made (or on behalf of any of its subsidiaries) with its knowledge and consent, in the Rulings Applications or otherwise provided in writing to the CRA, the IRS or tax counsel in connection with the Tax RulingsRuling. (b) Each Party covenants of BHC and agrees with and in favour of each other Party that it will B+L (for clarity, including Amalco 2 as its successor following the Effective Time) shall not (and, for clarity, shall cause each member of the BHC Group and that it will cause its Subsidiaries to not) B+L Group, as applicable, not to), for a period of three years after the Effective Date, take any actions, omit or perform or fail to take or perform any actionact, or enter including entering into any transaction that or permitting any act or transaction within its control to be taken or performed or to occur, that, in each case, could reasonably be expected to cause the Arrangement or and/or any related transaction contemplated by the Arrangement and/or this Agreement to be taxed in a manner inconsistent with that provided for in the Final Tax Rulings withoutRuling, in each case, without first: (i) obtaining at such Party’s expense a supplementary supplemental tax ruling from the CRA or an opinion of a nationally recognized accounting firm or law firm that is in form and substance satisfactory to B+L or BHC, as the case may be, acting reasonably (it being acknowledged that refusal by such actionsParty to accept an opinion that is not at least at a “should” level will be considered to be reasonable), omissions that the taking or transactions performing of such act, or failure to take or perform such act or the entering into such transaction, as applicable, will not have such effect cause the Arrangement and/or any transaction contemplated by the Arrangement and/or this Agreement to be taxed in a manner inconsistent with that provided for in the Final Tax Ruling in respect of the Tax Rulingsother Party or any other member of that other Party’s Group (the B+L Group or BHC Group, as the case may be); and (ii) for confirming in writing to the other Party that the obtaining of such a period supplemental tax ruling or opinion shall not relieve such Party of three years after the Effective Dateany liability under Article 5 in respect of such act, obtaining the consent of EnCana and Cenovus, such consent not failure to be unreasonably withheld act or delayedtransaction. (c) Each Party covenants and agrees with and in favour of each other Party to shall: (i) file its tax returns and make all other filings, notifications, designations and elections, (including Section section 85 electionselections under the Tax Act, and the corresponding provisions of any applicable provincial tax legislation) pursuant to the Tax Act and/or applicable provincial or foreign tax legislation, that are contemplated in the Final Tax Ruling, the Arrangement and/or this Agreement, and to (ii) make adjustments to its stated capital accounts in accordance with the terms of the Plan of Arrangement following the Effective Date. Where an agreed amount is to be included in any such electionelection referred to in this Section 3.3(c), such amount will be within the range contemplated by the Tax Act (or and/or applicable provincial or foreign tax legislation) , as the case may be, and will be the amount amount, if any, contemplated by the Final Tax RulingsRuling, the Plan of Arrangement and and/or this Agreement. (d) Each Party covenants and agrees with and in favour of each other Party to shall cooperate in the preparation preparation, execution and filing, in the form and within the time limits prescribed or otherwise contemplated in the Tax Act, of all tax Tax returns, filings, notifications, designations and elections under the Tax Act as contemplated in the Rulings Application, Final Tax RulingsRuling, the Plan of Arrangement and and/or this Agreement (and any similar tax returns, elections, notifications or designations that may be required under applicable provincial or foreign tax legislation). (e) BHC and B+L shall cause each member of the BHC Group and B+L Group, respectively, and TC and TC Sub shall cause each of their respective subsidiaries, as applicable, to comply with the foregoing Sections 3.3(a) to 3.3(d). (f) Notwithstanding the forgoing, no acquisition of control of either of BHC or B+L that is or was not within the control of BHC or B+L, as applicable, and in respect of which the BHC Board or B+L Board, as applicable, did not agree, consent, support, encourage or otherwise acquiesce, shall constitute a breach by BHC or B+L, as applicable, of its obligations under the foregoing Sections 3.3(a) to 3.3(e). For purposes of this Section, the phrase “acquisition of control” shall be interpreted as it is interpreted for purposes of paragraph 55(3.1)(b) of the Tax Act. (g) Each Party shall cooperate and use all commercially reasonable efforts to obtain the Final Tax Ruling (and, if elected by BHC, a U.S. Tax Ruling), the U.S. Tax Opinion and in consenting to and agreeing to all such amendments to this Agreement and the Plan of Arrangement as may be necessary to obtain the Final Tax Ruling (and, if elected by BHC, a U.S. Tax Ruling) and the U.S. Tax Opinion and to implement the Plan of Arrangement in accordance with the Final Tax Ruling (and, if received by BHC, the U.S. Tax Ruling) and the U.S. Tax Opinion. (h) In the event that BHC determines, in its sole discretion: (i) at any time, whether before or after the Effective Date, that the transactions that have implemented or will implement the Arrangement will not be taxed in a manner that is consistent with their treatment for purposes of the Tax Act as a tax-deferred “butterfly reorganization” pursuant to paragraph 55(3)(b) of the Tax Act; and/or (ii) at any time prior to the Effective Date, not to proceed with a transaction or series of transactions to which BHC desires such “butterfly reorganization” rules to apply, BHC shall provide written notice to B+L reasonably promptly following the date on which BHC has definitively made such determination confirming that BHC has made such determination and, effective from the date on which such notice is provided, no Party shall be required to comply with the covenants contained in Sections 3.3(a), 3.3(b), 3.3(c) and 3.3(g); provided, for clarity, that each Party shall remain liable for any prior breaches of such Sections in accordance with this Agreement.

Tax Related Covenants. (a) Each Party covenants and agrees with and in favour of each other Party that: (i) it and any successor thereto will not, on or before the Effective Date, perform any act or enter into any transaction or permit any transaction within its control to occur that could reasonably be considered to interfere or be inconsistent with the Tax RulingsRuling and Opinion; (ii) neither it nor any successor thereto will perform any act or enter into any transaction or permit any transaction, in each such case, within its control to occur that would cause EnCana FirstService or any Affiliate of EnCana FirstService that is a corporation to cease to be a Specified Corporation on or prior to the Effective Date, except as contemplated herein or in the Tax Rulings Ruling and Opinion or Rulings Applicationsthe Canadian Tax Ruling Application; and (iii) it and any successor thereto will fulfill, and will cause any Person Controlled, after the Effective Date, by it, to fulfill, all representations or undertakings provided by it, or on its behalf and made with its knowledge and consent, in the Rulings Applications Canadian Tax Ruling Application or otherwise provided in writing to the CRA, the IRS CRA or tax counsel in connection with the Tax RulingsRuling and Opinion. (b) Each Party of FirstService and New FSV covenants and agrees with and in favour of each other Party that that, for a period of three years after the Effective Date, it will not (and that it will cause its Subsidiaries to not) take any actionsaction, omit to take any action, action or enter into any transaction that could cause the Arrangement or any related transaction contemplated by this Agreement to be taxed in a manner inconsistent with that provided for in the Tax Rulings without: (i) Ruling and Opinion without obtaining a supplementary tax ruling or an opinion of a nationally recognized accounting firm or law firm that such actionsaction, omissions omission or transactions transaction will not have such effect in respect of the Tax Rulings; and (ii) for a period of three years after the Effective Date, obtaining the consent of EnCana and Cenovus, such consent not to be unreasonably withheld or delayedeffect. (c) Each Party of FirstService and New FSV covenants and agrees with and in favour of each other Party to to: (i) file its tax Tax returns and make all other filings, notifications, designations and electionselections (including section 85 elections under the Tax Act, including Section 85 electionsand the corresponding provisions of any applicable provincial tax legislation), pursuant to the Tax Act and/or applicable provincial or foreign tax legislation, that are contemplated in the Tax Ruling and Opinion, the Plan of Arrangement or this Agreement, and (ii) to make adjustments to its stated capital accounts in accordance with the terms of the Plan of Arrangement following the Effective Date. Where an agreed amount is to be included in any such electionelection referred to in paragraph 4.4(c)(i), such amount will be within the range contemplated by the Tax Act (or and/or applicable provincial or foreign tax legislation) , as the case may be, and will be the amount amount, if any, contemplated by the Tax RulingsRuling and Opinion, the Plan of Arrangement and this Agreement. (d) Each Party of FirstService and New FSV covenants and agrees with and in favour of each other Party to cooperate in the preparation preparation, execution and filing, in the form and within the time limits prescribed or otherwise contemplated in the Tax Act, of all tax Tax returns, filings, notifications, designations and elections under the Tax Act as contemplated in the Rulings Canadian Tax Ruling Application, Tax RulingsRuling and Opinion, the Plan of Arrangement and this Agreement (and any similar tax Tax returns, elections, notifications or designations that may be required under applicable provincial or foreign tax legislation).