Covenants of Spinco. (a) Without limiting the generality of the provisions of Section 7.1, Spinco, on behalf of itself and its Subsidiaries, agrees and covenants that Spinco and each of its Subsidiaries will not, directly or indirectly, during the Restriction Period, (i) take any action that would result in Spinco’s ceasing to be engaged in the active conduct of the Spinco Business with the result that Spinco is not engaged in the active conduct of a trade or business within the meaning of section 355(b)(2) of the Code, (ii) redeem or otherwise repurchase (directly or through an Affiliate of Spinco) any of Spinco’s outstanding stock, other than through stock purchases meeting the requirements of section 4.05(1)(b) of Revenue Procedure 96-30, 1996-1 C.B. 696 (but it being understood, for the avoidance of doubt, that no agreement or covenant under this Section 7.3(a)(ii) is being entered with respect to Compensatory Equity Net Share Settlements), (iii) amend the certificate of incorporation (or other organizational documents) of Spinco that would affect the relative voting rights of separate classes of Spinco’s stock or would convert one class of Spinco’s stock into another class of its stock, (iv) liquidate (within the meaning of section 331 of the Code and the Treasury Regulations promulgated thereunder) or partially liquidate Spinco, (v) merge Spinco with any other corporation (other than in a transaction that does not affect the relative shareholding of Spinco shareholders), sell or otherwise dispose of (other than in the ordinary course of business) the assets of Spinco and its Subsidiaries, or take any other action or actions if such merger, sale, other disposition or other action or actions in the aggregate would have the effect that one or more Persons acquire (or have the right to acquire), directly or indirectly, as part of a plan or series of related transactions, assets representing one-half or more of the asset value of the Spinco Group, or (vi) take any other action or actions that in the aggregate would have the effect that one or more Persons acquire (or have the right to acquire), directly or indirectly, as part of a plan or series of related transactions, stock of Spinco representing a Fifty-Percent Equity Interest in Spinco (as determined for purposes of section 355(e) of the Code), other than a Permitted Acquisition.
Covenants of Spinco. (i) SpinCo and each SpinCo REIT Subsidiary shall take all actions, and refrain from taking all actions, as are necessary to ensure that SpinCo and each SpinCo REIT Subsidiary will qualify for taxation as a REIT for U.S. federal income tax purposes for any and all Straddle Periods.
(ii) SpinCo and each SpinCo REIT Subsidiary shall accommodate all reasonable requests of DevCo with respect to maintenance of the REIT status of DevCo, any Subsidiary of DevCo that has or will elect to be treated as a REIT for U.S. federal income tax purposes, SpinCo, or a SpinCo REIT Subsidiary for any and all Straddle Periods.
(iii) Members of the SpinCo Group shall not sell or otherwise dispose of any SpinCo Asset on or prior to December 31, 2020, if such disposition would cause any member of the DevCo Group to incur Tax attributable to a “prohibited transaction” under Section 857(b)(6) of the Code.
(iv) Neither SpinCo nor any of the SpinCo REIT Subsidiaries shall liquidate, merge, combine or otherwise restructure or elect to be treated as other than a corporation for U.S. federal income tax purposes, without DevCo’s consent, prior to the second (2nd) anniversary of the Distribution Date; provided, however, that SpinCo or any of the SpinCo REIT Subsidiaries may, at any point after December 31, 2020, combine or merge with or into any Person that (immediately before such merger or combination) is not a member of the SpinCo Group.
Covenants of Spinco. Spinco hereby covenants and agrees with Entrée that it will:
(a) until the Effective Date, not perform any act or enter into any transaction which interferes or is inconsistent with the completion of the Plan of Arrangement;
(b) cooperate with and support Entrée in its application for the Interim Order and preparation of the Circular;
(c) without limiting the generality of any of the foregoing covenants, until the Effective Date, except as required to effect the Plan of Arrangement or with the consent of Entrée, not:
(i) issue any additional Spinco Common Shares or other securities of Spinco other than in connection with the Plan of Arrangement or transactions required in order to effect the Plan of Arrangement;
(ii) issue or enter into any agreement or agreements to issue or grant options, warrants or rights to purchase any Spinco Common Shares or other securities of Spinco; and
(iii) alter or amend its constating documents as the same exist at the date of this Agreement except as specifically provided for hereunder; and
(d) perform the obligations required to be performed by it under the Plan of Arrangement and do all such other acts and things as may be necessary or desirable and are within its power and control in order to carry out and give effect to the Plan of Arrangement, including using commercially reasonable efforts to obtain:
(i) such consents, orders, rulings or approvals and assurances as are necessary or desirable for the implementation of the Plan of Arrangement, including those referred to in Article 5, and
(ii) satisfaction of the conditions precedent referred to in Article 5.
Covenants of Spinco. Spinco covenants and agrees that it will (and will cause each of its Affiliates, as applicable, to):
(a) not perform any act or enter into any transaction that could interfere or could be inconsistent with the completion of the Arrangement or the grant of the Tax Rulings or their effective application to the Arrangement, except as provided in Section 4.3(b);
(b) perform the obligations required to be performed by Spinco under the Plan of Arrangement and do all such other acts and things as may be necessary or desirable and are within its power and control in order to carry out and give effect to the Arrangement and any transactions necessary for obtaining the Tax Rulings;
(c) obtain the consent of LAC prior to issuing any press releases or otherwise making public statements or communications with respect to this Agreement or the consummation of the Arrangement;
(d) not issue shares in Spinco's capital stock prior to the Effective Time and issue such initial Spinco shares only in accordance with and subject to the terms of the Plan of Arrangement;
(e) on or before the Effective Date, assist and cooperate in the preparation and filing with all applicable securities commissions or similar regulatory authorities in Canada and the United States all necessary prospectuses, registration statements and similar requirements, or applications to seek exemptions, if applicable, from the prospectus, registration and other requirements, under the applicable securities laws in Canada and the United States for the issue of post-Arrangement Common Shares and Spinco Common Shares, and any other filings or exemptions that are necessary or desirable in connection with the Arrangement;
(f) on or before the Effective Date, assist and cooperate in obtaining confirmation from the TSX and the NYSE of the continued listing of the post-Arrangement Common Shares (including the post-Arrangement Common Shares which, as a result of the Arrangement, are issuable upon the settlement of Lithium Argentina Equity Awards) and making applications to list the Spinco Common Shares issuable pursuant to the Arrangement and issuable under the Spinco Equity Incentive Plan, on the TSX and the NYSE;
(g) until the Effective Date, not issue any securities, acquire any assets or incur any liabilities or other obligations, except as contemplated pursuant to this Agreement or the Plan of Arrangement; and
(h) from the Effective Time until the last day on which any Arrangement Equity Awards are outstanding t...
Covenants of Spinco. (a) SpinCo and the SpinCo Subsidiaries shall report (i) (A) the sale of all of the interests in HCP Mezzanine Lender, LP by HCP, HCP Life Science REIT, Inc., and HCP Life Science Estates, Inc. to QCP AL REIT, LLC, QCP SNF West REIT, LLC, QCP SNF Central REIT, LLC, and QCP East HoldCo, LLC and (B) the sale of all of the interests in Healthcare Operations Holdings, LLC by HCP to QCP AL REIT, LLC, QCP SNF West REIT, LLC, QCP SNF Central REIT, LLC, and QCP East HoldCo, LLC as taxable sales consistent with the form of such transactions for all Tax purposes, including the reporting of gain or loss attributable to such sales; and (ii) the Distribution as a taxable distribution of SpinCo Common Stock under Section 301 of the Code for all Tax purposes.
(b) SpinCo and each SpinCo REIT Subsidiary shall take all actions, and refrain from taking all actions, as are necessary to ensure that SpinCo and each SpinCo REIT Subsidiary will qualify for taxation as a REIT for U.S. federal income tax purposes for any and all Straddle Periods.
(c) SpinCo and each SpinCo REIT Subsidiary shall accommodate all reasonable requests of HCP with respect to maintenance of the REIT status of SpinCo or a SpinCo REIT Subsidiary for any and all Straddle Periods.
(d) Members of the SpinCo Group shall not :
(i) sell or otherwise dispose of any SpinCo Asset listed on Schedule 3.3(d) to this Agreement until after the date set forth opposite such asset on Schedule 3.3(d) or if such sale or disposal would prevent any member of the HCP Group to this Agreement from engaging in or completing a “like-kind exchange” involving the applicable SpinCo Asset listed on Schedule 3.3(d) under Section 1031 of the Code; or
(ii) sell or otherwise dispose of any SpinCo Asset prior to or on December 31, 2016, if such disposition would cause any member of the HCP Group to incur Tax attributable to a “prohibited transaction” under Section 857(b)(6) of the Code.
(e) Neither SpinCo, Parent REIT, nor any of the SubREITs shall liquidate, merge, combine or otherwise restructure or elect to be treated as other than a corporation for U.S. federal income tax purposes, without HCP’s consent, prior to the second (2nd) anniversary of the Distribution Date; provided, however, that SpinCo, Parent REIT, or any of the SubREITs may, at any point after December 31, 2016, combine or merge with or into any Person that (immediately before such merger or combination) is not a member of the SpinCo Group.
Covenants of Spinco. Spinco hereby covenants and agrees with Chemesis as follows:
(a) except as otherwise contemplated in this Agreement, until the Effective Date, it shall not merge into or with, or amalgamate or consolidate, or enter into any other corporate reorganization with, any other corporation or Person, perform any act or enter into any transaction or negotiation which reasonably could be expected to, directly or indirectly, interfere or be inconsistent with the completion of the Arrangement or the other transactions contemplated by this Agreement;
(b) it shall perform the obligations required to be performed by it, and shall enter into all agreements required to be entered into by it, under this Agreement and the Plan of Arrangement and shall do all such other acts and things as may be necessary or desirable in order to carry out and give effect to the Arrangement and related transactions as described in the Circular and, without limiting the generality of the foregoing, to the extent requested by Chemesis, it shall seek and cooperate with Chemesis in seeking (i) the Interim Order and the Final Order; and (ii) such other consents, orders, rulings, approvals and assurances as counsel may advise are necessary or desirable in connection with the completion of the Arrangement; and
(c) it will use all reasonable efforts to cause each of the conditions precedent set out in sections 5.1 and 5.2 hereof to be complied with on or before the Effective Date.
Covenants of Spinco. (a) Spinco shall not, and Spinco shall cause each Spinco Group member not to, take any action, or fail or omit to take any action that would (i) cause the Distribution not to have Tax-Free Status, or (ii) cause any representation made in the Ruling Documents to be untrue.
(b) During the two-year period beginning on the Distribution Date, Spinco shall not cease, or permit any of its Subsidiaries or Affiliates to cease to be engaged in the conduct of the active trade or business relied upon for purposes of satisfying the requirements of Section 355(b) of the Code for purposes of the Tax Ruling.
(c) Until the first day after the Restricted Period, Spinco (or any successor thereof) shall not (i) solicit any Person to make a tender offer for the Equity Securities of Spinco or any successor thereof, (ii) participate in or support any unsolicited tender offer for the Equity Securities of Spinco or any successor thereof, or (iii) approve any proposed business combination or any transaction which, in each case, results in any Persons acquiring an interest in Spinco or any successor thereof such that such Persons own a Fifty Percent or Greater Interest in Spinco or any successor thereof; provided, however, that -------- ------- this Section 5.02(c) shall not prevent Spinco from purchasing Spinco stock pursuant to a stock purchase program satisfying the requirements of Section 4.05(1)(b) of Rev. Proc. 96-30, 1996-1 C.B. 696.
Covenants of Spinco. Spinco hereby covenants and agrees with Spearmint as follows:
(a) Until the Effective Date, it will not merge into or with, or amalgamate or consolidate with, or enter into any other corporate reorganization with, any other corporation or person, and perform any act or enter into any transaction or negotiation which interferes or is inconsistent with the Arrangement or other transactions contemplated by this Agreement.
(b) It will perform the obligations required to be performed by it, and will enter into all agreements required to be entered into by it, under this Agreement, the Plan of Arrangement and will do all such other acts and things as may be necessary or desirable in order to carry out and give effect to the Arrangement and related transactions as described in the Circular and, without limiting the generality of the foregoing, it will:
(i) seek and cooperate with Spearmint in seeking the Final Order as provided for in section 3.3; and
(ii) seek and cooperate with Spearmint in seeking such other consents, orders, rulings, approvals and assurances as counsel may advise are necessary or desirable for the implementation of the Arrangement, including those referred to in section 4.1.
Covenants of Spinco. (i) Regardless of whether SpinCo elects to be treated as a REIT, SpinCo shall take all actions, and refrain from taking any actions (in each case other than filing, or failing to file, an election to be treated as a REIT), as are necessary to ensure that SpinCo would qualify for taxation as a REIT had it elected to be treated as such for any taxable periods during which any Secured Note remains outstanding.
(ii) SpinCo shall accommodate all reasonable requests of FHP with respect to maintenance of the REIT status of FHP and any Subsidiary of FHP that has or will elect to be treated as a REIT for U.S. federal income tax purposes.
Covenants of Spinco. The Parties agree that the Definitive Agreement will provide a covenant of Spinco in favour of New Gold that as soon as possible after the completion of the Transaction, it shall make all commercially reasonable efforts to seek and obtain a listing for the Spinco Shares on the TSX-V or another more senior stock exchange in North America.
