Common use of Certain Requirements in Respect of Merger, Etc Clause in Contracts

Certain Requirements in Respect of Merger, Etc. The Corporation shall not enter into any transaction, whether by way of amalgamation (except a vertical short-form amalgamation with one or more of its wholly-owned Subsidiaries pursuant to the Canada Business Corporations Act), merger, reconstruction, reorganization, consolidation, transfer, sale, lease or otherwise, whereby all or substantially all of its undertaking, property and assets would become the property of any other Person or, in the case of any such amalgamation, of the continuing corporation resulting therefrom, but may do so if: (a) such other Person or continuing corporation is a corporation (the "SUCCESSOR CORPORATION") incorporated: (i) under the laws of Canada or any province thereof; or (ii) in the United States, Australia, New Zealand or any country in the European Union as of the date hereof, provided that in the opinion of the Trustee, acting reasonably, the Noteholders are not economically disadvantaged in any material respect (including as a result of the imposition of withholding tax on any payments to be made hereunder) as a result of the transaction (including without limitation as a result of the fact that the continuing corporation is incorporated in a jurisdiction outside Canada). For the purposes of rendering its opinion under this clause 8.1(a)(ii), the Trustee shall be entitled to hire such experts or advisors as it deems necessary and to rely upon the advice of such experts and advisors in supporting its opinion. The Trustee shall be protected in acting in good faith in reliance on such advice; (b) the Successor Corporation shall execute, prior to or contemporaneously with the completion of such transaction, such indenture supplemental hereto and other instruments (if any) as in the opinion of Counsel are necessary or advisable to evidence the assumption by the Successor Corporation of the liability for the due and punctual payment of all the Notes and the interest thereon and all other moneys payable hereunder and the covenant of such Successor Corporation to pay the same and its agreement to observe and perform all the covenants and obligations of the Corporation under this Indenture; (c) such transaction will, to the satisfaction of the Trustee, acting reasonably, be upon such terms as substantially to preserve and not impair in any material respect the rights and powers of the Trustee or of the Noteholders hereunder; and (d) no condition or event shall exist in respect of the Corporation or the Successor Corporation, either at the time of such transaction or immediately thereafter after giving full effect thereto, which constitutes or would, after the giving of written notice or the lapse of time or both, constitute an Event of Default hereunder.

Certain Requirements in Respect of Merger, Etc. The Corporation (1) MDC, without the consent or approval of the Holders or the Trustee, shall not enter into any transaction, transaction (whether by way of amalgamation (except a vertical short-form amalgamation with one or more of its wholly-owned Subsidiaries pursuant to the Canada Business Corporations Act), merger, reconstruction, reorganization, consolidation, arrangement, amalgamation, merger, transfer, sale, lease or otherwise, ) whereby all or substantially all of its undertaking, property and assets would become the property of any other Person person or, in the case of any such amalgamation, of the continuing corporation resulting therefromtherefrom unless, but may do so without such consent or approval, if: (a) such other Person person or continuing corporation is a corporation (herein called the "SUCCESSOR CORPORATIONSuccessor Corporation") incorporated: (i) incorporated under the laws of Canada or any province thereof; or (ii) in thereof or under the laws of the United States; (b) the Successor Corporation, Australiaby operation of law, New Zealand becomes, without more, bound by the terms and provisions of this Trust Indenture and the Exchangeable Securities or, if not so bound, executes, prior to or any country in contemporaneously with the European Union consummation of such transaction, an indenture supplemental hereto and such other instruments (if any) as of the date hereofare, provided that in the opinion of the Trustee, acting reasonably, the Noteholders are not economically disadvantaged in any material respect (including as a result of the imposition of withholding tax relying on any payments to be made hereunder) as a result of the transaction (including without limitation as a result of the fact that the continuing corporation is incorporated in a jurisdiction outside Canada). For the purposes of rendering its opinion under this clause 8.1(a)(ii), the Trustee shall be entitled to hire such experts or advisors as it deems necessary and to rely upon the advice of such experts and advisors in supporting its opinion. The Trustee shall be protected in acting in good faith in reliance on such advice; (b) the Successor Corporation shall execute, prior to or contemporaneously with the completion of such transaction, such indenture supplemental hereto and other instruments (if any) as in the opinion of Counsel are Counsel, necessary or advisable to evidence the assumption by the Successor Corporation of the liability for the due and punctual payment of all the Notes Exchangeable Securities and the interest thereon and all other moneys payable and property deliverable hereunder and the covenant of such Successor Corporation to pay and deliver or cause to be paid and delivered the same and its agreement to observe and perform all the covenants and obligations of the Corporation MDC under this Trust Indenture; (c) such transaction willtransactions shall, to the satisfaction of the Trustee, acting reasonablyrelying on the opinion of Counsel, be upon such terms as substantially to preserve and not to impair in any material respect any of the rights and powers of the Trustee or of the Noteholders Holders hereunder; and (d) no condition or event shall exist in respect of the Successor Corporation or the Successor Corporation, either at the time of such transaction or immediately thereafter and after giving full effect thereto, thereto which constitutes or would, after the giving of written notice or the lapse of time or both, constitute an Event of Default hereunder. (2) For the purposes of Subsection 12.1(1), a transaction shall not be regarded as a transaction whereby all or substantially all of MDC's undertaking, property and assets would become the property of another person if, prior to the completion of such transaction, MDC provides to the Trustee an opinion, satisfactory to the Trustee, of an Independent Investment Dealer selected by the Directors for such purpose to the effect that, after the completion of such transaction, and taking into account the application or use of proceeds from such transaction or the securities received by MDC as a result of such transaction, the ability of MDC to honour its obligations under the Exchangeable Securities would not be adversely affected from a financial point of view in any significant respect.

Certain Requirements in Respect of Merger, Etc. The Corporation In addition to the covenants contained in Section 6.02, so long as any of the Notes remain outstanding, the Company shall not enter into any transaction, transaction (whether by way of amalgamation (except a vertical short-form amalgamation with one or more of its wholly-owned Subsidiaries pursuant to the Canada Business Corporations Act), merger, reconstruction, reorganization, consolidation, arrangement, amalgamation, merger, transfer, salelease, lease sale or otherwise, ) whereby all or substantially all of its undertaking, property and undertaking or assets would become the property of any other Person another person or, in the case of any such amalgamation, of the continuing corporation company resulting therefromtherefrom unless, but may do so if: (a) such other Person person or continuing corporation company is a corporation (herein called the "SUCCESSOR CORPORATIONsuccessor company") incorporated: (i) incorporated under the laws of Canada or any province thereofone of its provinces; or (ii) in the United States, Australia, New Zealand or any country in the European Union as of the date hereof, provided that in the opinion of the Trustee, acting reasonably, the Noteholders are not economically disadvantaged in any material respect (including as a result of the imposition of withholding tax on any payments to be made hereunder) as a result of the transaction (including without limitation as a result of the fact that the continuing corporation is incorporated in a jurisdiction outside Canada). For the purposes of rendering its opinion under this clause 8.1(a)(ii), the Trustee shall be entitled to hire such experts or advisors as it deems necessary and to rely upon the advice of such experts and advisors in supporting its opinion. The Trustee shall be protected in acting in good faith in reliance on such advice;79 73. (b) the Successor Corporation successor company shall execute, prior to or to, contemporaneously with or forthwith after the completion consummation of such transaction, such indenture supplemental hereto instruments as are satisfactory to the Trustee and other instruments (if any) as in the opinion of Counsel counsel are necessary or advisable either to evidence the assumption by the Successor Corporation successor company of the liability for the due and punctual payment of the principal of and interest payable on all the Notes and the interest thereon and all other moneys payable hereunder and the covenant of such Successor Corporation the successor company to pay the same and its agreement to observe and perform all the covenants and obligations of the Corporation Company under this Indenture; or evidence the agreement by the successor company to unconditionally guarantee the due and punctual payment of all amounts payable under this Indenture; (c) such transaction will, shall to the satisfaction of the Trustee, acting reasonably, Trustee and in the opinion of counsel be upon such terms as to substantially to preserve and not to materially impair in the Series A Lien or not to materially prejudice any material respect of the rights and powers of the Trustee or of the Noteholders hereunder; and (d) no condition or event shall exist in respect of the Corporation Company or the Successor Corporation, successor company either at the time of or immediately after the consummation of such transaction or immediately thereafter and after giving full effect thereto, thereto or immediately after the successor company complying with the provisions of Subsection (b) above which constitutes or would, after the giving of written notice or the lapse of time or both, would constitute an Event of Default hereunder.

Certain Requirements in Respect of Merger, Etc. The Corporation shall not enter into any transaction, transaction (whether by way of amalgamation (except a vertical short-form amalgamation with one or more of its wholly-owned Subsidiaries pursuant to the Canada Business Corporations Act), mergerreorganization, reconstruction, reorganizationconsolidation, consolidationamalgamation, merger, transfer, sale, lease or otherwise, ) whereby all or substantially all of its undertaking, property and assets the Collateral would become the property of any other Person or, in the case of any such amalgamation, of the continuing corporation resulting therefrom, but may do so ifunless: (a) such other Person or continuing corporation is a corporation body corporate (the "SUCCESSOR CORPORATION"herein called a “Successor Corporation”) incorporated: (i) incorporated under the laws of Canada or any province thereof; or (ii) in Province thereof or any state of the United States, Australia, New Zealand or any country in the European Union as States of the date hereof, provided that in the opinion of the Trustee, acting reasonably, the Noteholders are not economically disadvantaged in any material respect (including as a result of the imposition of withholding tax on any payments to be made hereunder) as a result of the transaction (including without limitation as a result of the fact that the continuing corporation is incorporated in a jurisdiction outside Canada). For the purposes of rendering its opinion under this clause 8.1(a)(ii), the Trustee shall be entitled to hire such experts or advisors as it deems necessary and to rely upon the advice of such experts and advisors in supporting its opinion. The Trustee shall be protected in acting in good faith in reliance on such adviceAmerica; (b) the Successor Corporation shall executeexecutes, prior to or contemporaneously with the completion consummation of such transaction, such indenture supplemental hereto and other instruments (if any) as are satisfactory to the Trustee and, in the opinion of Counsel Counsel, are necessary or advisable to evidence the assumption by the Successor Corporation of the liability for the due and punctual payment of all the Notes and Purchased Royalties on the interest thereon Units and all other moneys payable hereunder and the covenant of such the Successor Corporation to pay the same and its agreement to observe and perform all the covenants and obligations of the Corporation under this IndentureIndenture and that the Units will be valid and binding obligations of the Successor Corporation entitling the holders thereof, as against the Successor Corporation, to all rights of a Unitholder hereunder; (c) such transaction willshall, to the satisfaction and in the opinion of the Trustee, acting reasonablyCounsel, be upon such terms as substantially to preserve and do not impair in any material respect of the rights and powers of the Trustee or of the Noteholders Unitholders hereunder; and (d) no condition or event shall exist in respect of the Corporation or the Successor Corporation, either at the time of such transaction or immediately thereafter thereafter, after giving full effect thereto, which constitutes or would, after the giving of written notice or the lapse of time or both, constitute an Event of Default hereunder.

Certain Requirements in Respect of Merger, Etc. The Corporation Except for Permitted Acquisitions or as permitted under this Agreement, the Obligors shall not enter into any transaction, transaction (whether by way of amalgamation (except a vertical short-form amalgamation with one or more of its wholly-owned Subsidiaries pursuant to the Canada Business Corporations Act), merger, reconstruction, reorganization, consolidation, amalgamation, merger, transfer, sale, lease sale or otherwise, ) whereby (1) all or substantially all of its undertaking, property and assets would become the property of any other Person or, in the case of any such amalgamation, of the continuing corporation company resulting therefrom, but or whereby (2) the obligation of the Borrower or any other Obligor to pay amounts under this Agreement or any other Loan Document would become subject to novation or assumed or undertaken by any other such Person or continuing company; provided that it may do so and such Person or continuing company (the “Successor Corporation”) shall become a party to this Agreement and/or a Guarantee, as the case may be, and the other Loan Documents, if: (a) such other Person or continuing corporation the Successor Corporation is a corporation (Guarantor, the "SUCCESSOR CORPORATION") incorporated:Successor Corporation is a Subsidiary of the Borrower; (ib) any of the predecessors of the Successor Corporation was the Borrower, the Successor Corporation is the Borrower and it shall be organized under the laws of Canada or any province thereof; or (ii) in the United States, Australia, New Zealand States or any country in the European Union as of the date hereof, provided that in the opinion of the Trustee, acting reasonably, the Noteholders are not economically disadvantaged in any material respect (including as a result of the imposition of withholding tax on any payments to be made hereunder) as a result of the transaction (including without limitation as a result of the fact that the continuing corporation is incorporated in a jurisdiction outside Canada). For the purposes of rendering its opinion under this clause 8.1(a)(ii), the Trustee shall be entitled to hire such experts or advisors as it deems necessary and to rely upon the advice of such experts and advisors in supporting its opinion. The Trustee shall be protected in acting in good faith in reliance on such advicepolitical subdivision thereof; (bc) any of the predecessors of the Successor Corporation was a Guarantor, the Successor Corporation is a Guarantor or the Borrower; (d) the Successor Corporation shall execute, prior execute and/or deliver to or contemporaneously with the completion of such transaction, such indenture Agent an agreement supplemental hereto in form reasonably satisfactory to the Agent and execute and/or deliver such other instruments (instruments, if any) as in , which to the opinion reasonable satisfaction of Counsel are necessary or advisable the Agent to evidence (i) the assumption by the Successor Corporation of the liability under each Loan Document to which it is a party for the due and punctual payment of all money payable by any of the Notes and Obligors, as the interest thereon and all other moneys payable hereunder and case may be, thereunder, (ii) the covenant of such the Successor Corporation to pay the same and its (iii) the agreement of the Successor Corporation to observe and perform all the covenants and obligations of such Obligor, as the case may be, under each Loan Document and to be bound by all the terms of each Loan Document so far as they relate to such Obligor, which instruments, if any, shall be in form reasonably satisfactory to the Agent; provided there shall be no obligation to deliver such instruments if the Successor Corporation under this Indentureis not an Obligor; (ce) such transaction willshall, to the reasonable satisfaction of the Trustee, acting reasonablyAgent and the Required Lenders, be upon such terms as substantially to preserve and not to impair in any material respect of the rights and powers of the Trustee or Agent, the Lenders and each of the Noteholders hereunder; andthem under this Agreement; (df) no condition or event shall exist in respect of the Corporation or the Successor Corporation, either at the time all Other Taxes payable as a result of such transaction have been paid by such Successor Corporation; (g) such transaction will not result in any claim for increased costs pursuant to Section 13.9 or immediately thereafter after giving full effect thereto, which constitutes result in any Tax being levied on or would, after payable by the giving of written notice Agent or the lapse of time or both, constitute an Event of Default hereunder.any Lender (except for Excluded Taxes);