Common use of The Offers Clause in Contracts

The Offers. Subject to the terms and conditions of this Agreement (including, for greater certainty, the conditions set forth in Schedule “C”), as part of the Transaction, HCo agrees to make an offer to purchase all of the outstanding Units, Series 1 Debentures and Series 2 Debentures (collectively, the “APIF Securities”) at the applicable Offer Price per APIF Security (the “Offers”, which terms shall include any one or more changes or variations to, or extensions of, such Offers) on the following terms and conditions: (a) HCo shall mail or cause to be mailed to all holders of APIF Securities, as soon as reasonably practicable following satisfaction of the conditions set forth below, the Offers, which Offers shall be made by way of a take-over bid circular (the “Bid Circular”) in compliance with the Securities Act (Ontario) and all other applicable securities laws, regulations and rules and the policy statements, orders and rulings of Canadian and United States securities regulatory authorities (the “Securities Laws”) and which Offers shall be subject to the conditions set forth in Schedule “C” hereto; provided the Board of Trustees or its Representatives have provided to HCo a reasonably completed Bid Circular, in both English and French languages, that complies in all material respects with Securities Laws (including any information pertaining to HCo, APIF and pro forma financial statements). HCo shall not be required to make the Offers (i) in any jurisdiction where it would be illegal to do so, (ii) in any jurisdiction other than Canada and the United States, or (iii) if the mailing has not occurred prior to the Bid Circular Mailing Date; (b) The mailing of the Bid Circular shall be conditional on the following matters, all of which conditions are intended to be for the sole benefit of HCo and any of which can be waived in whole or in part in its sole discretion without prejudice to any other right it may have under this Agreement: (i) this Agreement shall not have been terminated pursuant to Article 5; (ii) the Board of Trustees shall have provided HCo the lists referred to in Section 4.1(a)(vi); (iii) as of the date the Offers are to be made, there shall be no breach of or non-compliance with any material covenant, agreement or obligation of the Board of Trustees contained herein (in any case, as determined by HCo, acting reasonably); (iv) no circumstance, fact, change, event or occurrence shall have occurred or come into existence that would render it impossible for one or more of the conditions set out on Schedule “C” hereto or in the Divestiture Agreement to be satisfied; (v) no cease trade order, injunction or other prohibition under applicable Law shall exist against HCo (A) making the Offers as contemplated herein, (B) taking-up or paying for APIF Securities deposited under the Offers, (C) completing the Compulsory Acquisition, (D) completing the Arrangement, or (E) completing the transactions as contemplated in the Divestiture Agreement; (vi) the Board of Trustees shall have complied in all respects with its covenants in this Agreement; (vii) each of the representations and warranties contained in Sections 3.1(a), 3.1(b) and 3.1(d) shall be true and correct in all material respects as of the date of the mailing of the Bid Circular with the same effect as if made at and as of the date of this Agreement and the date of the mailing of the Bid Circular (other than such representations that are made as of a specified date, which shall be true and correct as of such date); (viii) that the trustees’ circular (the “Trustees’ Circular”) prepared, and approved in final form, by the Board of Trustees shall be made available by the Board of Trustees to be mailed to holders of APIF Securities at the same time, and in the same package, as the Bid Circular and that in the Trustees’ Circular the Board of Trustees shall (A) make a unanimous recommendation that holders of APIF Securities accept the Offers, and (B) unanimously conclude that the Offers are fair, from a financial point of view, to holders of APIF Securities and the Board of Trustees shall not have withdrawn such recommendation or changed, modified or qualified such recommendation in a manner adverse to HCo, or taken any other action or made any other public statement or comments in connection with the Offers, the Amendment Resolution or the Arrangement inconsistent with such recommendation; (ix) the Interim Order has been granted in form and substance satisfactory to HCo and the Board of Trustees, each acting reasonably, and shall not have been set aside or varied in any manner unacceptable to HCo and the Board of Trustees, each acting reasonably, on appeal or otherwise; and (x) a Form F-4 in respect of the Offers has been declared effective by the SEC and shall not be the subject of any stop order, and no proceedings seeking a stop order shall be pending before or by the SEC; (c) The Offers shall expire not earlier than 11:59 p.m. (local time) on the 35th day (the “Expiry Time”) after the date of mailing of the Offers to the holders of APIF Securities; (d) The Bid Circular shall be prepared in compliance with Securities Laws. The Trustees’ Circular shall be prepared by the Board of Trustees in compliance with Securities Laws; (e) The Board of Trustees shall defer the separation time under the Rights Plan and on or immediately prior to the Take-Up Time or such earlier time as HCo may request and waive, suspend the operation of or otherwise render the Rights Plan inoperative or ineffective as regards to the Offers, the Compulsory Acquisition, the Transaction and matters contemplated in this Agreement; (f) Each of HCo and the Board of Trustees shall provide in a timely manner to the other for inclusion in the Bid Circular and Trustees’ Circular, and any amendments or supplements thereto, such information regarding the other party as is required by Securities Laws to be included in the Bid Circular and Trustees’ Circular or is required for the preparation of the Bid Circular and Trustees’ Circular; and (g) Subject to the satisfaction of the conditions set forth in Schedule “C” and the terms hereof, HCo shall, as soon as is practicable in the circumstances and in any event within the time periods required by Securities Laws, accept for payment and take-up and pay for all APIF Securities deposited and not withdrawn under the Offers.