AMENDMENT AND TERM AND TERMINATION OF THE FUND. 13.1 Amendment The Contributor and the Trustee may at any time, and from time to time, by an agreement in writing, amend or modify in whole or in part, any or all of the provisions of this Agreement, provided that: (a) no provision of this Agreement shall be deemed waived, amended or modified by any party unless such waiver, amendment or modification is in writing and signed by such party and accepted in writing by the other party; (b) no amendment or modification shall be effective to the extent that it is inconsistent with the Trust’s purposes as set out in this Agreement; (c) the Trustee shall not withhold its consent to any such waiver, amendment or modification requested by the Contributor in writing unless the Trustee reasonably concludes that it will be adversely affected thereby; and (d) no waiver, amendment or modification will be effective without approval by an NEB Decision. 13.2 Termination of the Trust (a) Except where section 13.2(b) applies: (i) The Trust shall terminate and be wound up upon the earlier of the following (the period from the date hereof until such termination being the “Trust Term”): (A) the day prior to the expiration of twenty one (21) years after the date of death of the last surviving lineal descendent of Queen ▇▇▇▇▇▇▇▇▇ ▇▇ who was alive on the date the Trust is created (the “Permitted Term”); and (B) the date on which the Tribunal confirms in writing that all Abandonment Work as required under Applicable Law has been completed. (ii) Not more than five years and not less than one year prior to the expiration of the Permitted Term, the Trustee shall (unless the Trust has already terminated under subsection (a)(i)(B)) pay the entirety of the Fund to the Beneficiary, provided that the following conditions are satisfied: (A) the Trustee has requested and received a certificate of an officer of the Beneficiary that is an Authorized Party stating that: (1) to the best of the officer’s knowledge, the Beneficiary is not in Default and no events or circumstances have occurred which would reasonably be expected to result in a Default within one year after the date the certificate is issued; and (2) the Beneficiary has established, with the approval of the Tribunal, a new irrevocable trust upon the same terms and subject to the same conditions as set out in this Agreement (the “New Trust”); and (B) the Beneficiary has irrevocably covenanted that upon receipt of the Fund, the Beneficiary shall: (1) keep all of the Fund Property separate and distinct from other assets of the Beneficiary; and (2) immediately contribute or transfer the entirety of the Fund Property to the New Trust. (iii) If, on or before one year prior to the expiration of the Permitted Term, the Trust has not terminated under subsection (a)(i)(B) nor has the entirety of the Fund been paid to the Beneficiary pursuant to subsection (a)(ii), then the Trustee shall notify the Tribunal thereof not later than ten months prior to the expiry of the Trust Term, and: (A) if, not less than 90 days prior to the expiry of the Trust Term, the Tribunal provides direction to the Trustee with respect to the payment of the entirety of the Fund on termination of the Trust in accordance with the purpose and objects of this Agreement, the Trustee will pay the entirety of the Fund in accordance with such direction and subject to Applicable Law; and (B) otherwise, the Trustee will pay the entirety of the Fund to Her Majesty in right of Canada prior to the expiry of the Trust Term. (b) If, after the date of this Agreement and prior to disbursement of the entirety of the Fund pursuant to section 13.2(a), the Perpetuities Act is amended with the result that the rules of law and enactments relating to perpetuities and accumulations no longer apply to the Trust, then (i) subsection 13.2(a) shall no longer apply, and (ii) the Trust shall instead terminate and be wound up at such time, if any, as the Tribunal confirms in writing that all Abandonment Work as required under Applicable Law has been completed. 13.3 Surplus Funds If Trust is terminated pursuant to Section 13.2(b) and Property remains in the Fund after all Abandonment Work of the Beneficiaries has been completed and paid for, then the Trustee, with the approval of the NEB, may distribute the Fund or any part thereof among any of the Beneficiaries and, if applicable, an Orphan Pipeline Fund selected by the Trustee as the Trustee in its sole discretion sees fit. 13.4 Trust Irrevocable Subject to the provisions of the Trustee Act (Alberta), the Trust may not be revoked by the Contributor, by the Beneficiaries acting as a whole or by the Trustee. 13.5 Transfer of the Pipeline; Change of Beneficiary (a) If the Company sells, transfers or assigns its ownership of the Pipeline or a portion thereof, and, as a result of such transaction, any other person becomes obligated to, or does, collect Abandonment Charges or becomes obligated to make Contributions to the Trust, whether pursuant to an NEB Decision or otherwise, the Contributor shall (subject to NEB approval and unless the NEB otherwise directs) ensure as part of such transaction that such person enters into an agreement in favour of the Trustee and approved by the NEB Decision agreeing to be bound by the provisions hereof applicable to the Contributor, with respect to the Pipeline or portion thereof, pursuant to which such person shall be bound hereby as Contributor, including being obligated to contribute all Abandonment Charges it collects in respect of the Pipeline (or portion thereof) to the Trust and to make any additional Contributions the NEB may require, and shall be entitled to exercise such rights and powers of the Contributor or Beneficiary hereunder as are specified therein. (b) If the Company sells, transfers or assigns its ownership of the Pipeline or a portion thereof and, as a result of such transaction, any other person thereafter becomes obligated pursuant to an NEB Decision to Abandon or otherwise to pay for the Reclamation Obligations in respect of the sites in Canada used by the Company for the operation of the Pipeline or that portion thereof in accordance with Applicable Law, then solely to the extent that such person has become so obligated and the NEB so directs, such person shall forthwith become (and the previously incumbent Beneficiary shall, if unconditionally released from all obligations to Abandon the Pipeline under Applicable Law and the NEB so directs, cease to be) the Beneficiary hereunder, and such person, the Beneficiary and the Trustee shall enter into such amendments hereto as may reasonably be required to give effect to such principles, subject to prior approval of such amendments by the NEB. (c) If for any reason other than the sale, transfer or assignment of ownership of the Pipeline, the NEB or a Court determines, and the time for an appeal of such decision expires, that any person other than the then Beneficiary has become obligated to Abandon or otherwise pay for the Reclamation Obligations in respect of the sites in Canada used by the Company for the operation of the Pipeline (whether because of an Insolvency Event affecting the Beneficiary or otherwise) in the place and stead of the Beneficiary, then solely to the extent that such person has become so obligated and the NEB so directs, such person shall forthwith become (and the previously incumbent Beneficiary shall, if unconditionally released from all obligations to Abandon the Pipeline under Applicable Law and the NEB so directs, cease to be) the Beneficiary hereunder.
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Sources: Trust Agreement, Trust Agreement, Trust Agreement