UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 6-K
REPORT
OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13a-16 OR 15d-16
OF
THE SECURITIES EXCHANGE ACT OF 1934
For
the month of December 2024
Commission
File Number: 001-35765
SPROTT
PHYSICAL PLATINUM AND PALLADIUM TRUST
(Translation
of registrant’s name into English)
Suite 2600,
South Tower,
Royal
Bank Plaza,
200
Bay Street,
Toronto,
Ontario,
Canada
M5J 2J1
(Address
of principal executive offices)
Indicate
by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
INFORMATION
CONTAINED IN THIS FORM 6-K REPORT
Attached
hereto as Exhibit 99.1 is Amendment No. 3 to the Amended and Restated Sales Agreement by and among Sprott Physical Platinum and
Palladium Trust (the “Trust”), Sprott Asset Management LP, and Cantor Fitzgerald & Co., Virtu Americas LLC, Virtu
Canada Corp., Canaccord Genuity Corp., Canaccord Genuity LLC, BMO Nesbitt Burns Inc. and BMO Capital Markets Corp.
Exhibit 99.1 is hereby incorporated by reference into the Trust’s registration statement on Form F-10 (File No. 333-281996), filed with the Securities and Exchange Commission on September 6, 2024.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned, thereunto duly authorized.
SPROTT
PHYSICAL PLATINUM AND PALLADIUM TRUST
(Registrant)
By
Sprott Asset Management GP Inc.,
as
general partner of
the
manager of the Registrant
| |
By: |
/s/
Kevin Hibbert |
| |
|
Kevin
Hibbert |
| |
|
Director |
| |
|
|
| Dated:
December 6, 2024 |
|
|
Sprott Physical Platinum and Palladium Trust 6-K
Exhibit 99.1
SPROTT
PHYSICAL PLATINUM AND PALLADIUM TRUST
Trust
Units
Amended
and Restated Sales Agreement
December
6, 2024
Cantor Fitzgerald & Co.
110 East 59th Street
New York, NY 10022
Cantor Fitzgerald Canada
Corporation
181 University Avenue, Suite 1500
Toronto, ON M5H 3M7
Virtu
Americas LLC
1633
Broadway
New
York, NY 10019
Virtu Canada Corp.
222 Bay Street, Suite 1720
Toronto, ON M5K 1B7
Canaccord
Genuity Corp.
40
Temperance Street, Suite 2100
Toronto,
ON M5H 0B4
Canaccord
Genuity LLC
One Post Office Square, Suite 3000
Boston, MA 02109
BMO
Nesbitt Burns Inc.
1
First Canadian Place
100
King Street West
3rd
Floor Podium
Toronto,
ON M5X 1H3
BMO
Capital Markets Corp.
151 West 42nd Street
New York, NY 10036
Ladies
and Gentlemen:
Reference
is made to the Amended and Restated Sales Agreement dated October 21, 2020, as amended by Amendment No. 1 thereto dated August 16,
2022 and as further amended by Amendment No. 2 thereto dated September 9, 2024, including the Schedules thereto (the
“Sales Agreement”), by and among Sprott Physical Platinum and Palladium Trust, a trust formed and
organized under the laws of the Province of Ontario (the “Trust”) and managed by Sprott Asset Management
LP, a limited partnership organized under the laws of the Province of Ontario (the “Manager”), Cantor
Fitzgerald & Co. (“Cantor”) and Virtu Americas LLC (“Virtu”), pursuant to
which the Trust agreed to sell through Cantor and Virtu, as sales agents, units of the Trust. The Trust, the Manager, Cantor, Cantor
Fitzgerald Canada Corporation (“Cantor Canada”), Virtu, Virtu Canada Corp. ( “Virtu
Canada”), Canaccord Genuity Corp. (“Canaccord Canada”), BMO Nesbitt Burns Inc.
(“BMO Canada” and, together with Cantor Canada, Virtu Canada and Canaccord Canada, the
“Canadian Agents”), Canaccord Genuity LLC (“Canaccord”) and BMO Capital Markets
Corp. (“BMO”, and together with Cantor, Virtu and Canaccord, the “Agents”), each
confirm their agreement (this “Agreement”) that the Sales Agreement is amended, restated and superseded in
its entirety as follows:
| Section 1 | Issuance
and Sale of Units |
The
Trust agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein,
it may issue and sell through the Agents units of the Trust (the “Placement Units”); provided, however,
that in no event shall the Trust issue or sell through the Agents such number or dollar amount of Placement Units that (i) exceeds
the number or dollar amount of Units (as defined below) registered pursuant to the effective Registration Statement pursuant to
which the offering will be made, (ii) exceeds the number of authorized but unissued Units (as defined below), or (iii) exceeds
the number or dollar amount of Units for which the Trust has filed a Prospectus (as defined below) (the lesser of (i), (ii) and
(iii), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto
agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Units issued and sold under
this Agreement shall be the sole responsibility of the Trust and that the Agents shall have no obligation in connection with such
compliance, provided that the Agents shall not sell Units in excess of the amount set forth in any Placement Notice (as
defined below). The issuance and sale of Placement Units through the Agents will be effected pursuant to a Canadian Final Prospectus
(as defined below) and the Registration Statement (as defined below) and Prospectus filed by the Trust, which Registration Statement
became effective upon filing with the U.S. Securities and Exchange Commission (the “Commission”) pursuant to
Rule 467(a) under the Securities Act. Nothing in this Agreement shall be construed as requiring the Trust to use the Registration
Statement and/or the Canadian Final Prospectus to issue Placement Units. The units of the Trust are hereby referred to as the
“Units”. When determining the amount of Units sold in Canadian dollars, such dollars will be converted to U.S.
dollars using the Bank of Canada daily exchange rate for U.S. dollars in effect as of 4:30 p.m. (Toronto time) on the business
day before the issuance of the Units.
The
Trust is qualified under Canadian Securities Laws (as defined below), including the rules and procedures established pursuant
to National Instrument 44-101 – Short Form Prospectus Distributions and National Instrument 44-102 – Shelf
Distributions (“NI 44-102”) (collectively, the “Shelf Procedures”), in connection with
a distribution of the Units in each of the Canadian Qualifying Jurisdictions (as defined below) to file a prospectus in the form
of a short form base shelf prospectus. A final short form base shelf prospectus dated September 6, 2024, in respect of up to $100,000,000
of Units (such Units together with any Units offered pursuant to any subsequent final short form base shelf prospectus filed with
the Ontario Securities Commission (the “OSC”), as principal regulator, and with each of the other Securities
Commissions (as defined below) in accordance with the Shelf Procedures, the “Shelf Securities”) has
been filed with the OSC, as principal regulator, and with each of the securities commissions or similar regulatory authorities
(as applicable, the “Canadian Securities Commissions”) in each of the provinces and territories of Canada (the
“Canadian Qualifying Jurisdictions”) in respect of the offering of the Shelf Securities; a receipt (the “Final
Receipt”) has been issued by the OSC in its capacity as principal regulator, representing the deemed receipt of
each of the other Canadian Securities Commissions pursuant to Multilateral Instrument 11-102 — Passport System and National
Policy 11-202 — Process for Prospectus Reviews in Multiple Jurisdictions (collectively, the “Passport System”)
in respect of such short form base shelf prospectus in the form heretofore delivered to the Agents or available through EDGAR
or SEDAR+ (together with all documents filed in connection therewith and all documents incorporated by reference therein and the
documents otherwise deemed to be a part thereof or included therein pursuant to Canadian Securities Laws (as defined below), including
but not limited, to all Designated News Releases (as defined below)). No other document to be incorporated by reference therein
has been filed with the OSC as principal regulator and or with any of the other Canadian Securities Commissions except for any
documents heretofore delivered to the Agents or available through EDGAR or SEDAR+; no order having the effect of ceasing or suspending
the distribution of the Shelf Securities (including any Units) has been issued by the OSC or any other Canadian Securities Commission
and no proceeding for that purpose has been initiated or, to the best of the Trust’s knowledge and the Manager’s knowledge,
threatened by the OSC or any other Canadian Securities Commission (the final short form base shelf prospectus dated September
6, 2024, as most recently amended, if applicable, or any subsequent final short form base shelf prospectus, filed with the OSC
as principal regulator and with each of the other Canadian Securities Commissions in accordance with the Shelf Procedures for
which a receipt has been issued by the OSC in its capacity as principal regulator, representing the deemed receipt of each of
the other Canadian Securities Commissions pursuant to the Passport System, being hereinafter called the “Canadian Base
Prospectus”). The final prospectus supplement relating to the offering of the Placement Units to be filed with the OSC
as principal regulator and with each of the other Canadian Securities Commissions in accordance with the Shelf Procedures and
in accordance with Section 8(w) hereof, together with the Canadian Base Prospectus, is hereinafter called the “Canadian
Final Prospectus”. The Canadian Final Prospectus shall provide that any and all Designated News Releases shall be deemed
to be incorporated by reference in the Canadian Final Prospectus. As used herein, the terms “Canadian Base Prospectus”
and “Canadian Final Prospectus” shall include the documents, if any, incorporated by reference therein, including
Designated News Releases. As used herein, a “Designated News Release” means a news release disseminated by
the Trust in respect of previously undisclosed information that, in the Trust’s determination, constitutes a “material
fact” (as such term is defined in Canadian Securities Laws (as defined herein)) and identified by the Trust as a “designated
news release” in writing on the face page of the version of such news release that is filed by the Trust on SEDAR+.
The final prospectus supplement relating to the offering of the Units shall provide that any and all Designated News Releases
shall be deemed to be incorporated by reference therein and in the Canadian Base Prospectus but only for the purposes of the at-the-market
program contemplated by this Agreement. All Designated News Releases shall also be filed with the Commission under cover of Form
6-K and the Prospectus (as defined below) relating to the offering of the Units shall provide that each such Form 6-K shall be
deemed to be incorporated by reference as an exhibit to the Registration Statement.
The
Trust has filed with the Commission a registration statement on Form F-10 (File No. 333-281996) relating to the Shelf Securities
and an appointment of agent for service of process on Form F-X (a “Trust Form F-X”) relating to the registration
statement, and the Trust has caused RBC Investor Services Trust to file with the Commission an appointment of agent for service
of process on Form F-X (a “Trustee Form F-X”). The Trust may file one or more additional registration statements
from time to time that will contain a Base Prospectus (as defined below) and related prospectus, if applicable (which shall be
a Prospectus (as defined below)), with respect to the Placement Units. The registration statement on Form F-10 as amended to the
date of this Agreement, including the information (if any) deemed to be a part of such registration statement at the time of effectiveness
pursuant to Form F-10 under the U.S. Securities Act of 1933, as amended (the “Securities Act”), is hereinafter
called the “Registration Statement”; the base prospectus relating to the Shelf Securities filed as part of
the Registration Statement, in the form in which it has most recently been filed with the Commission, is hereinafter called the
“Base Prospectus”. For purposes of this Agreement, “Prospectus” means the final prospectus
supplement relating to the offering of the Placement Units, together with the Base Prospectus, filed with the Commission pursuant
to General Instruction II.L. of Form F-10 in accordance with Section 8(w) hereof. As used herein, the terms “Registration
Statement”, “Base Prospectus” and “Prospectus” shall include the documents, if
any, incorporated by reference therein as of the relevant time.
The
terms “supplement,” “amendment,” and “amend” as used herein with respect to the Registration
Statement, the Canadian Base Prospectus and the Base Prospectus shall include any document subsequently filed by the Trust pursuant
to the Shelf Procedures or the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as
the case may be, that is deemed to be incorporated by reference therein. As used herein, “Base Prospectuses”
shall mean, collectively, the Canadian Base Prospectus and the Base Prospectus; and “Prospectuses” shall mean,
collectively, the Canadian Final Prospectus and the Prospectus.
Each
time that the Manager, on behalf of the Trust, wishes to issue and sell Placement Units hereunder (each, a “Placement”),
the Manager will notify one of the Agents (the “Designated Agent”) by email notice (or other method mutually
agreed to in writing by the parties) of the number of Placement Units, the time period during which sales are requested to be
made, any limitation on the number of Placement Units that may be sold in any one Trading Day (as defined below) and any minimum
price below which sales may not be made (a “Placement Notice”), the form of which is attached hereto as Schedule “A”.
The Placement Notice shall originate from any of the individuals from the Manager set forth on Schedule “C” (with
a copy to each of the other individuals from the Manager listed on such schedule), and shall be addressed to each of the individuals
from the Designated Agent set forth on Schedule “C”, as such Schedule “C” may be amended from
time to time. The Placement Notice shall be effective unless and until (i) the Designated Agent declines to accept the terms contained
therein for any reason, in its sole discretion, by providing email notice to the individuals from the Manager set forth on Schedule “C”,
(ii) the entire amount of the Placement Units thereunder have been sold, (iii) the Manager, on behalf of the Trust, suspends or
terminates the Placement Notice, or (iv) this Agreement has been terminated under the provisions of Section 13. The amount
of any discount, commission or other compensation to be paid by the Trust, or the Manager, on behalf of the Trust, to the Designated
Agent in connection with the sale of the Placement Units shall be calculated in accordance with the terms set forth in Schedule “B”.
It is expressly acknowledged and agreed that neither the Manager, on behalf of the Trust, nor the Agents will have any obligation
whatsoever with respect to a Placement or any Placement Units unless and until the Manager, on behalf of the Trust, delivers a
Placement Notice to the Designated Agent and the Designated Agent does not decline such Placement Notice pursuant to the terms
set forth above, and then only upon the terms specified therein and herein. In the event of a conflict between the terms of this
Agreement and the terms of a Placement Notice, the terms of the Placement Notice will control.
| Section 3 | Sale
of Placement Units by Designated Agent |
Subject
to the provisions of Section 5(a), the Designated Agent, for the period specified in the Placement Notice, will use its commercially
reasonable efforts consistent with its normal trading and sales practices and, to the extent applicable, U.S. state and federal
laws, rules and regulations, Canadian Securities Laws (as defined below) and, if applicable, the rules of NYSE Arca (the “NYSE”)
and the rules of the Toronto Stock Exchange (the “TSX”, and together with the NYSE, the “Exchanges”),
to sell the Placement Units up to the amount specified, and otherwise in accordance with the terms of such Placement Notice. The
Designated Agent will provide written confirmation to the Manager and the Trust no later than the opening of the Trading Day (as
defined below) immediately following the Trading Day on which it has made sales of Placement Units hereunder setting forth the
number of Placement Units sold on such day, the compensation payable by the Trust to the Designated Agent pursuant to Section
2 with respect to such sales, and the Net Proceeds (as defined below) payable to the Trust, with an itemization of the deductions
made by the Designated Agent (as set forth in Section 5(b)) from the gross proceeds that it receives from such sales. Subject
to the terms of the Placement Notice, the Placement Units may be offered and sold: (i) by any method permitted by law deemed to
be an “at-the-market distribution” as defined in NI 44-102, (ii) by the Canadian Agents, on the TSX or on any
other “marketplace” (as such term is defined in National Instrument 21-101 – Marketplace Operation
(“NI 21-101”)) in Canada (any, a “Canadian Marketplace”), (iii) by the U.S. Agents,
on the NYSE, on any other existing trading market for the Units in the United States or (iv) with the prior written consent of the Manager, on behalf of the Trust, which may be provided in the terms
of a Placement Notice, in negotiated transactions subject to prior written consent of the TSX. The Canadian Agents covenant and
agree with the Trust that: (i) it shall not, directly or indirectly, advertise or solicit offers to purchase or sell Units in
any jurisdiction other than Canada, and (ii) it shall not sell Units on any exchange other than the TSX or any other Canadian
Marketplace. Each of the U.S. Agents, severally (and not jointly), covenant and agree with the Trust that: (i) it shall not, directly
or indirectly, advertise or solicit offers to purchase or sell Units in Canada, and (ii) it shall not sell Units on the TSX or
on any Canadian Marketplace. For the avoidance of doubt, none of the U.S. Agents is acting as an underwriter of the Units in the
Canadian Qualifying Jurisdictions and no action on the part of any of the U.S. Agents in its capacity as an Agent of the offering
and sale of the Units in the United States is intended to create any impression or support that it is acting as an underwriter
of the Units in the Canadian Qualifying Jurisdictions. During the term of this Agreement, and notwithstanding anything to the
contrary herein, each Agent agrees that in no event will it or any of its affiliates, nor shall it act jointly or in concert with
another person to, enter into any transaction that is intended to stabilize or maintain the market price of the Units, including
selling an aggregate number of Units that would result in such Agent creating an over-allocation position in the Units, or engage
in any market making, bidding, stabilization or other trading activity with regard to the Units if such activity would be prohibited
under Regulation M under the Exchange Act or other anti-manipulation rules under the Securities Act. For the avoidance of doubt,
the obligations of the Agents under this Agreement shall be several and not joint. “Trading Day” means
any day on which the Units are traded on the NYSE (for Placements by the U.S. Agents in the United States) or the TSX (for Placements
by the Canadian Agents in Canada).
| Section 4 | Suspension
of Sales |
The
Manager, on behalf of the Trust, or the Designated Agent may, upon notice to the other party in writing (including by email correspondence
to each of the individuals of the other party set forth on Schedule “C”, if receipt of such correspondence is
actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed
immediately by verifiable facsimile transmission or email correspondence to each of the individuals of the other party set forth
on Schedule “C”), suspend any sale of Placement Units (a “Suspension”); provided, however,
that such suspension shall not affect or impair any party’s obligations with respect to any Placement Units sold hereunder
prior to the receipt of such notice. While a Suspension is in effect any obligation under Section 8(l), Section 8(m),
and Section 8(n) with respect to the delivery of certificates, opinions, or comfort letters to the Agents, shall be waived,
provided, however, that such waiver shall not apply for the Representation Date (defined below) occurring on the
date that the Trust files its Annual Report on Form 40-F. Each of the parties agrees that no such notice under this Section 4
shall be effective against any other party unless it is made to one of the individuals named on Schedule “C”
hereto, as such Schedule may be amended from time to time.
| Section 5 | Sale
and Delivery to the Designated Agent; Settlement |
| (a) | Sale
of Placement Units. On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, upon the Designated Agent’s
acceptance of the terms of a Placement Notice, and unless the sale of the Placement Units
described therein has been declined, suspended, or otherwise terminated in accordance
with the terms of this Agreement, the Designated Agent, for the period specified in the
Placement Notice, will use its commercially reasonable efforts consistent with its normal
trading and sales practices and applicable law and regulations to sell such Placement
Units up to the amount specified, and otherwise in accordance with the terms of such
Placement Notice. The Manager, on behalf of the Trust, acknowledges and agrees that (i)
there can be no assurance that the Designated Agent will be successful in selling Placement
Units, (ii) the Designated Agent will incur no liability or obligation to the Trust or
any other person or entity if it does not sell Placement Units for any reason other than
a failure by the Designated Agent to use its commercially reasonable efforts consistent
with its normal trading and sales practices and applicable law and regulations to sell
such Placement Units as required under this Agreement and (iii) the Designated Agent
shall be under no obligation to purchase Placement Units on a principal basis pursuant
to this Agreement, except as otherwise agreed by the Designated Agent and the Manager,
on behalf of the Trust. |
| (b) | Settlement
of Placement Units. Unless otherwise specified in the applicable Placement Notice,
settlement for sales of Placement Units will occur on the first Trading Day (or
such earlier date as is industry practice for regular-way trading) following the date
on which such sales are made (each, a “Settlement Date”). The Designated
Agent shall notify the Manager of each sale of Placement Units no later than the opening
of the Trading Day immediately following the Trading Day on which it has made sales of
Placement Units hereunder. The amount of proceeds to be delivered to the Trust on a Settlement
Date against receipt of the Placement Units sold (the “Net Proceeds”)
will be equal to the aggregate sales price received by the Designated Agent, after deduction
for (i) the Designated Agent’s commission, discount or other compensation for such
sales payable by the Trust pursuant to Section 2 hereof, and (ii) any documented transaction
fees imposed by any governmental or self-regulatory organization in respect of such sales. |
| (c) | Delivery
of Placement Units. On or before each Settlement Date, the Manager, on behalf of
the Trust, will, or will cause its transfer agent to, electronically transfer the Placement
Units being sold by crediting the Designated Agent’s or its designee’s account
(provided the Designated Agent shall have given the Manager written notice of
such designee at least one Trading Day prior to the Settlement Date) at The Canadian
Depository for Securities, The Depositary Trust Company through its Deposit and Withdrawal
as Custodian System or by such other means of delivery as may be mutually agreed upon
by the parties hereto which in all cases shall be freely tradable, transferable, registered
Units in good deliverable form. On each Settlement Date, the Designated Agent will deliver
the related Net Proceeds in same day funds to an account designated by the Manager on,
or prior to, the Settlement Date. The Manager, on behalf of the Trust, agrees that if
the Trust, or the Trust’s transfer agent (if applicable), defaults in its obligation
to deliver Placement Units on a Settlement Date through no fault of the Designated Agent,
the Manager, on behalf of the Trust, agrees that in addition to and in no way limiting
the rights and obligations set forth in Section 11(a) hereto, it will (i) hold the Designated
Agent harmless against any loss, claim, damage, or expense (including reasonable legal
fees and expenses), as incurred, arising out of or in connection with such default by
the Manager, on behalf of the Trust, or its transfer agent (if applicable) and (ii) pay
to the Designated Agent any commission, discount, or other compensation to which it would
otherwise have been entitled absent such default. |
| (d) | Denominations;
Registration. Certificates for the Placement Units, if any, shall be in such denominations
and registered in such names as the Designated Agent may request in writing at least
one full Business Day (as defined below) before the Settlement Date. The certificates
for the Placement Units, if any, will be made available by the Manager, on behalf of
the Trust, for examination and packaging by the Designated Agent, if a U.S. Agent, in
The City of New York and, if a Canadian Agent, in the City of Toronto, not later than
noon (Toronto time) on the Business Day prior to the Settlement Date. |
| (e) | Limitations
on Offering Size. Under no circumstances shall the Manager, on behalf of the Trust,
cause or request the offer or sale of any Placement Units if, after giving effect to
the sale of such Placement Units, the aggregate gross sales proceeds of Placement Units
sold pursuant to this Agreement would exceed the lesser of (i) together with all sales
of Placement Units under this Agreement, the Maximum Amount, (ii) the amount available
for offer and sale under the currently effective Registration Statement and Canadian
Base Prospectus, and (iii) the amount authorized from time to time to be issued and sold
under this Agreement by the Manager, on behalf of the Trust, and notified to the Designated
Agent in writing. Under no circumstances shall the Trust cause or request the offer or
sale of any Placement Units pursuant to this Agreement at a price less than 100% of the
most recently calculated net asset value per Unit prior to, or upon the determination
of the pricing of such issuance, in accordance with Section 9.3(2) of National Instrument
81-102 – Investment Funds (“NI 81-102”) and notified
to the Designated Agent in writing, unless the Manager makes a contribution to the Trust
in the amount of any shortfall, and such contribution is approved by all applicable parties, including, if required, the NYSE.
Further, under no circumstances shall the Manager, on behalf of the Trust, cause or permit
the aggregate offering amount of Placement Units sold pursuant to this Agreement to exceed
the Maximum Amount. |
| Section 6 | Sales
Through the U.S. Agents |
With
respect to the offering and sale of Placement Units pursuant to this Agreement through the U.S. Agents, the Trust agrees that
any offer to sell Placement Units, any solicitation of an offer to buy Placement Units, and any sales of Placement Units in the
United States shall only be effected by or through a single U.S. Agent during any specific period of time in the United States
and the Trust shall in no event request that more than one U.S. Agent offer or sell Placement Units pursuant to this Agreement
in the United States during the same period of time.
| Section 7 | Representations
and Warranties of the Trust and Manager |
The
Trust and the Manager, jointly and severally, represent and warrant to and agree with the Agents that as of the date of this Agreement
and as of each Applicable Time:
| (a) | The
Registration Statement has become effective; no stop order suspending the effectiveness
of the Registration Statement is in effect, and no proceedings for such purpose are pending
before or threatened by the Commission; the Final Receipt has been obtained from the
OSC as principal regulator representing the deemed receipt of each of the other Canadian
Securities Commissions in respect of the Canadian Base Prospectus and no order or action
that would have the effect of suspending the distribution of the Units has been issued
or taken by the Canadian Securities Commissions and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of the Trust or the Manager, are
contemplated by the Canadian Securities Commissions. |
| (b) | (i)
The Registration Statement, when it became effective, did not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Canadian Final Prospectus will, when filed,
be true and correct in all material respects and contain full, true and plain disclosure
of all material facts relating to the Trust and the Units as required by Canadian Securities
Laws (as defined below) and does not contain and will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which they
were made, not misleading, (iii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the Commission
thereunder, (iv) the Canadian Final Prospectus, as amended or supplemented, if applicable,
will comply in all material respects with Canadian Securities Laws (as defined below)
and the applicable rules and regulations of the Canadian Securities Commissions thereunder,
and (v) the Prospectus does not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to statements or omissions in the Registration
Statement or the Prospectuses based upon information relating to the Agents furnished
to the Trust and the Manager in writing by the Agents expressly for use therein. Each
of the Trust Form F-X and the Trustee Form F-X conform in all material respects with
the requirements of the Securities Act and the rules and regulations of the Commission
under the Securities Act. |
| (c) | The
Trust has complied in all material respects with all applicable securities laws in each
of the Canadian Qualifying Jurisdictions, including the respective rules and regulations
made thereunder together with applicable published national and local instruments, policy
statements, notices, blanket rulings and orders of the Canadian Securities Commissions,
all discretionary rulings, decisions and orders applicable to the Trust, if any, of the
Canadian Securities Commissions (“Canadian Securities Laws”) required
to be complied with by the Trust to qualify the distribution of the Units as contemplated
hereby in each of the Canadian Qualifying Jurisdictions except for the filing of the
Canadian Final Prospectus. |
| (d) | The
Trust is not an “ineligible issuer” in connection with the offering
and sale of the Placement Units pursuant to Rules 164, 405 and 433 under the Securities
Act. Any free writing prospectus that the Trust is required to file pursuant to Rule
433(d) under the Securities Act has been, or will be, filed with the Commission
in accordance with the requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder. Each free writing prospectus that the Trust
has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act
or that was prepared by or on behalf of or used or referred to by the Trust complies
or will comply in all material respects with the requirements of the Securities Act
and the applicable rules and regulations of the Commission thereunder. Except for
the Permitted Free Writing Prospectuses (as defined below), if any, identified in Exhibit 1
hereto, the Trust has not prepared, used or referred to, and will not, without your prior
consent, prepare, use or refer to, any free writing prospectus. The Trust meets the general
eligibility requirements for use of a registration statement on Form F-10 in connection
with an offering contemplated thereby pursuant to the standards for Form F-10 approved
in Securities Act Release No. 33-6902 (June 21, 1991), and also satisfied such
eligibility requirements under the Securities Act at the time of filing the registration
statement with the Commission. |
| (e) | Each
document filed or to be filed with the Canadian Securities Commissions and incorporated
by reference in the Canadian Final Prospectus, as amended or supplemented, if applicable,
when such documents were or are filed with the Canadian Securities Commissions, conformed
or will conform when so filed in all material respects with Canadian Securities Laws,
and none of such documents, as of their respective dates, contained or will contain any
untrue statement of material fact or omitted or will omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; each document, if any, filed
or to be filed pursuant to the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the provisions of
the Exchange Act applicable under the Canada / U.S. Multijurisdictional Disclosure System
and the applicable rules and regulations of the Commission thereunder, and none of such
documents, as of their respective dates, contained or will contain any untrue statement
of a material fact or omitted or will omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions contained in the Canadian
Final Prospectus or the Prospectus, as amended or supplemented, if applicable, based
upon information relating to the Agents furnished to the Trust and the Manager in writing
by the Agents expressly for use therein. |
| (f) | The
Trust has been established and is subsisting under the trust agreement governing the
Trust, dated as of December 23, 2011, as amended and restated as of June 6, 2012, between
the Manager and RBC Investor Services (the “Trust Agreement”), as
a trust under the laws of the Province of Ontario, has all requisite power and authority
to own its property and assets, to conduct its business and invest in accordance with
the investment objectives as described in the Prospectuses and carry out its obligations
hereunder and to issue, sell and deliver the Placement Units in accordance with the provisions
of this Agreement, and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a material adverse effect on the Trust. |
| (g) | The
Trust has no direct or indirect subsidiaries. |
| (h) | The
Manager has been duly organized and is validly existing as a limited partnership under
the laws of the Province of Ontario, and is registered as a portfolio manager in Ontario,
an investment fund manager in Ontario, Québec, and Newfoundland and Labrador and
an exempt market dealer in all provinces in Canada. The Manager has the capacity and
power to own its property and assets and to conduct its business as described in the
Prospectuses and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing of property
or assets requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the Manager. |
| (i) | This
Agreement has been duly authorized, executed and delivered by the Manager on behalf of
itself and the Trust. |
| (j) | All
necessary action has been taken by each of the Trust and the Manager to authorize the
execution and delivery of this Agreement and the transactions contemplated hereby, the
execution and delivery of the Canadian Final Prospectus and the filing thereof and the
filing of all documents incorporated by reference therein under Canadian Securities Laws. |
| (k) | The
authorized Unit capital of the Trust conforms as to legal matters to the description
thereof contained in the Prospectuses. |
| (l) | The
Units outstanding prior to the issuance of the Placement Units to be sold by the Trust
have been duly authorized and are validly issued, fully paid and non-assessable. |
| (m) | The
Placement Units have been duly authorized and, when issued and delivered in accordance
with the terms of this Agreement, will be validly issued, fully paid and non-assessable,
and the issuance of the Placement Units will not be subject to any preemptive or similar
rights. |
| (n) | The
execution and delivery by the Trust and the Manager of this Agreement, and the performance
by each of the Trust and the Manager of its respective obligations under this Agreement
and the Related Agreements (as defined below), as applicable, and the issue and sale
of the Placement Units do not and will not contravene or conflict with (i) any material
provision of applicable law, (ii) the Trust Agreement, or the limited partnership agreement
of the Manager, (iii) any agreement, resolution or other instrument binding upon the
Trust or the Manager that is material to the Trust or the Manager (including the Related
Agreements) as applicable, or (iv) any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Trust or the Manager, and no consent,
approval, authorization or order of, or qualification with, any governmental body or
agency (including any Canadian court or Canadian federal, provincial or territorial governmental
authority) is required for the performance by the Trust or the Manager of its respective
obligations under this Agreement, except such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer and sale of the Placement
Units or those that have been obtained. |
| (o) | There
has not occurred any material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or in the earnings,
business, assets, operations or capital of the Trust or the Manager from that set forth
in the Prospectuses. |
| (p) | There
are no legal or governmental proceedings pending or threatened to which the Trust or
the Manager is a party or to which any of the properties or assets of the Trust or the
Manager is subject (i) other than proceedings accurately described in all material respects
in the Prospectuses or proceedings that would not have a material adverse effect on the
Trust or the Manager, as applicable, or on the power or ability of the Trust or the Manager
to perform its respective obligations under this Agreement or to consummate the transactions
contemplated by the Prospectuses or (ii) that are required to be described in the Registration
Statement or the Prospectuses and are not so described; and there are no statutes, regulations,
arrangements, contracts or other documents that are required to be described in the Registration
Statement or the Prospectuses or to be filed as exhibits to the Registration Statement
or filed with the Canadian Securities Commissions in connection with the filing of the
Prospectuses that are not described or filed as required. |
| (q) | The
Trust is not, and after giving effect to the offering and sale of the Units and the application
of the proceeds thereof as described in the Prospectuses will not be, required to register
as an “investment company” as such term is defined in the Investment
Company Act of 1940, as amended. |
| (r) | The
Trust is a “mutual fund trust” within the meaning of the Income Tax
Act (Canada) and the regulations thereunder (the “Tax Act”). |
| (s) | The
Trust is not a non-resident of Canada within the meaning of the Tax Act. |
| (t) | The
Trust Agreement has been duly authorized, executed and delivered by the Manager (by its
general partner, Sprott Asset Management GP Inc.), in its capacity as manager of the
Trust, and is enforceable against the Manager in accordance with its terms, and the Trust
Agreement is in full force and effect and has not been amended, restated, supplemented
or otherwise modified or replaced. |
| (u) | The
Manager has been duly appointed as manager of the Trust pursuant to the Trust Agreement and the management agreement,
dated as of December 17, 2012 (the “Management Agreement”), and the
Management Agreement has been duly authorized, executed and delivered by each of the
Trust and the Manager and is enforceable against each such party in accordance with its
terms, and the Management Agreement is in full force and effect and has not been amended,
restated, supplemented or otherwise modified or replaced. |
| (v) | The
Royal Canadian Mint (the “Mint”), a body corporate established by
the Royal Canadian Mint Act (Canada), has been duly appointed as custodian of the physical
platinum and palladium bullion owned by the Trust pursuant to the precious metals storage
agreement in respect of the Trust’s physical platinum bullion (the “Platinum
Storage Agreement”) and the precious metals storage agreement in respect of
the Trust’s physical palladium bullion (the “Palladium Storage Agreement”
and, together with the Platinum Storage Agreement, the “Storage Agreements”),
each entered into and made effective as of March 29, 2016, and such agreements have been
duly authorized, executed and delivered by the Manager on behalf of the Trust and is
enforceable against the Trust in accordance with their terms, and such agreements are
in full force and effect and have not been amended, restated, supplemented or otherwise
modified or replaced. |
| (w) | RBC
Investor Services Trust, a trust company incorporated under the federal laws of Canada,
has been duly appointed as custodian of the assets, other than physical platinum bullion
and physical palladium bullion of the Trust, pursuant to the Trust Agreement. |
| (x) | TSX
Trust Company, at its principal office in Toronto, Ontario has been duly appointed as
the registrar, transfer agent and disbursement agent for the Units pursuant to the transfer
agent, registrar and disbursing agent agreement, made as of December 13, 2012, as amended,
restated, supplemented or otherwise modified (the “Transfer Agent Agreement”),
and such agreement has been duly authorized, executed and delivered by the Manager on
behalf of the Trust and is enforceable against the Trust in accordance with its terms,
and such agreement is in full force and effect and has not been amended, restated, supplemented
or otherwise modified or replaced. |
| (y) | RBC
Investor Services Trust, at its principal office in Toronto, Ontario has been duly appointed
as the valuation agent of the Trust pursuant to the valuation services agreement, made
and entered into as of December 17, 2012, as amended, restated, supplemented or otherwise
modified (the “Valuation Services Agreement” and together with the
Trust Agreement, the Management Agreement, the Storage Agreements and the Transfer Agent
Agreement, the “Related Agreements”), and such agreement has been
duly authorized, executed and delivered by the Manager, in its capacity as manager of
the Trust, and is enforceable against the Manager in accordance with its terms, and such
agreement is in full force and effect and has not been amended, restated, supplemented
or otherwise modified or replaced. |
| (z) | The
Trust has good and marketable title to all physical platinum bullion and physical palladium
owned by it and all other personal property owned by it which is material to the business
of the Trust, in each case free and clear of all liens, encumbrances and defects; and
all of the physical platinum bullion and physical palladium owned by the Trust is held
by the Mint as custodian (or a subcustodian appointed by the Mint) pursuant to the Storage
Agreements as described in the Prospectuses. |
| (aa) | (aa)
There are no contracts, agreements or understandings between the Trust or the Manager
and any person granting such person the right to require the Trust or the Manager to
file a registration statement under the Securities Act or a prospectus under Canadian
Securities Laws with respect to any securities of the Trust or to require the Trust or
the Manager to include such securities with the Placement Units registered pursuant to
the Registration Statement or the Placement Units qualified by the Canadian Final Prospectus,
except as described in the Prospectuses. |
| (bb) | Neither
the Trust, the Manager nor any officer, employee or affiliate, nor, to the knowledge
of the Trust and the Manager, any agent or representative, of the Trust or the Manager
or any of their affiliates has taken, or will take, any action, in furtherance of an
offer, payment, promise to pay, or authorization or approval of the payment or giving
of money, property, gifts or anything else of value, directly or indirectly, to any “government
official” (including any officer or employee of a government or government-owned
or controlled entity or of a public international organization, or any person acting
in an official capacity for or on behalf of any of the foregoing, or any political party
or party official or candidate for political office) to influence official action or
secure an improper advantage; and the Trust, the Manager and their respective affiliates
have conducted their businesses in compliance with applicable anti-corruption laws and
have instituted and maintain and will continue to maintain policies and procedures designed
to promote and achieve compliance with such laws and with the representation and warranty
contained herein. |
| (cc) | The
operations of each of the Trust and the Manager are and have been conducted at all times
in compliance with all applicable financial recordkeeping and reporting requirements,
including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act
of 2001 (USA PATRIOT Act), of the Proceeds of Crime (Money Laundering) and Terrorist
Financing Act (Canada), the Corruption of Foreign Public Officials Act (Canada) and the
applicable anti-money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered
or enforced by any governmental agency (collectively, the “Anti-Money Laundering
Laws”), and no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Trust or the Manager with respect
to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Trust and
the Manager, threatened. |
| (dd) | None
of the Trust, the Manager or, to the knowledge of the Trust or the Manager, any director,
officer, agent, employee, affiliate or representative of the Trust or the Manager is
an individual or entity (“Person”) that is, or is owned or controlled
by a Person that is, the subject of any U.S. sanctions administered or enforced by the
Office of Foreign Assets Control of the U.S. Department of Treasury, the U.S. Department
of State, the United Nations Security Council, the European Union, His Majesty’s
treasury, the Office of the Superintendent of Financial Institutions (Canada), or pursuant
to the Special Economic Measures Act (Canada) or other relevant sanctions authority or
relevant statute, rule, or regulation (collectively, “Sanctions”),
nor located, organized or resident in a country or territory that is the subject of Sanctions
(including, without limitation, Cuba, Iran, North Korea, Syria,
the Crimea Region and the non-government controlled areas of Zaporizhzhia and Kherson
Regions of Ukraine, the so-called Donetsk People’s Republic and the so-called Luhansk
People’s Republic); and each of the Trust and the Manager will not, directly or
indirectly, use the proceeds of the offering of Placement Units hereunder, or lend, contribute
or otherwise make available such proceeds to any subsidiary, joint venture partner or
other Person, to fund or facilitate any activities of or business with any Person, or
in any country or territory that, at the time of such funding or facilitation, is the
subject of any Sanctions, or in a manner that will result in a violation of the Sanctions
by any Person (including any Person involved in or facilitating the offering of the Units,
whether as underwriter, advisor, investor or otherwise). |
| (ee) | Subsequent
to the respective dates as of which information is given in each of the Registration
Statement and the Prospectuses, except in each case as described in the Registration
Statement and the Prospectus, Respectively, (i) the Trust has not incurred any material
liability or obligation, direct or contingent, nor entered into any material transaction;
(ii) except for Units redeemed in accordance with the applicable provisions of the Trust
Agreement, the Trust has not purchased any outstanding Units or other equity interest
in the capital of the Trust, nor declared, paid or otherwise made any dividend or distribution
of any kind on its Units or other equity interest in the capital of the Trust; and (iii)
there has not been any material change in the capital, short-term debt or long-term debt
of the Trust. |
| (ff) | Each
of the Trust and the Manager owns, possesses or licenses, or can acquire on reasonable
terms, all material patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and trade names currently
employed by it, in each case, in connection with the business now operated by them, and
neither the Trust nor the Manager has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or finding, would
have a material adverse effect on the Trust or the Manager, as applicable. |
| (gg) | The
Manager is insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the businesses in which
it is engaged; it has not been refused any insurance coverage sought or applied for;
and it has no reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that would not have a
material adverse effect on the Manager, except as described in the Prospectuses. |
| (hh) | Each
of the Trust and the Manager possesses all certificates, authorizations and permits issued
by the appropriate federal, provincial, state or foreign regulatory authorities necessary
to conduct its business, and neither the Trust nor the Manager has received any notice
of proceedings relating to the revocation or modification of any such certificate, authorization
or permit which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a material adverse effect on the Trust or the Manager,
as applicable, except as described in the Prospectuses. |
| (ii) | The
financial statements included in the Registration Statement and the Prospectuses, together
with the related schedules and notes, present fairly the financial position of the Trust
at the dates indicated and the statements of financial position of the Trust for the
periods specified; such financial statements have been prepared in conformity with the
International Financial Reporting Standards as issued by the International Accounting
Standards Board (“IFRS”) applied on a consistent basis throughout
the periods involved. The supporting schedules, if any, included in the Registration
Statement present fairly in accordance with IFRS the information required to be stated
therein. |
| (jj) | KPMG
LLP (“KPMG”) have been the Trust’s auditors beginning January 1, 2016.
KPMG is an independent public accountant as required by Canadian Securities Laws and
the rules and regulations of the Canadian Securities Commissions thereunder, is independent
in accordance with the requirements of the institute of chartered professional accountants
in each of the Canadian Qualifying Jurisdictions in respect of a listed entity (as defined
in such requirements) and is an independent registered public accounting firm within
the meaning of the Securities Act and the applicable rules and regulations thereunder
adopted by the Commission and the Public Company Accounting Oversight Board (United States).
There has not been any disagreement (within the meaning of National Instrument 51-102
– Continuous Disclosure Obligations) with KPMG with respect to the audit
of the Trust. |
| (kk) | The
Manager maintains a system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s general
or specific authorizations, (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with IFRS principles and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management’s general
or specific authorization, and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences. Except as described in the Prospectuses, there has been (x)
no material weakness in the Trust’s or the Manager’s internal control over
financial reporting (whether or not remediated) and (y) no change in the Trust’s
or the Manager’s internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Trust’s or the Manager’s,
applicable, internal control over financial reporting. |
| (ll) | The
Manager maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act;
such disclosure controls and procedures have been designed to ensure that material information
relating to the Trust is made known to the Manager by others within those entities; and
such disclosure controls and procedures are effective. |
| (mm) | Except
as set forth in the Prospectuses and except for the Units previously owned by Sonia M.
Yung, as settlor of the Trust, and the Units issued in connection with the Trust’s
public offerings that have been disclosed on EDGAR and/or SEDAR+, the Trust has not sold,
issued or distributed any Units, including any sales pursuant to Rule 144A under, or
Regulation D or S of, the Securities Act or on a private placement basis under
one or more exemptions from the prospectus requirement under Canadian Securities Laws
other than Permitted Private Placements (as defined below). |
| (nn) | There
are no business relationships, related-party transactions or off-balance sheet transactions
or any other non-arm’s length transactions involving the Trust that are required
to be disclosed that have not been described in the Prospectuses. |
| (oo) | Except
for the Agents, there is no person, firm or corporation acting or purporting to act for
the Trust, entitled to any brokerage or finder’s fee in connection with this Agreement
or any of the transactions contemplated hereunder. |
| (pp) | The
net proceeds of the offering of Placement Units will be used in the manner specified
in the Prospectuses and for no other purpose. |
| (qq) | The
terms and conditions of the offering of Placement Units comply and will comply in all
material respects with Canadian Securities Laws including, without limitation, NI 81-102,
except to the extent that an exemption therefrom has been obtained from applicable Canadian
Securities Commissions in each of the Canadian Qualifying Jurisdictions. |
| (rr) | Neither
the Trust nor the Manager has any liabilities (contingent or otherwise) which might interfere
with the performance of their obligations hereunder or under any of the Related Agreements
to which it is a party. |
| (ss) | Each
of the Trust and the Manager is current and up-to-date with all material filings required
to be made by each of them under the laws of Canada and each of the provinces and territories
thereof, including all Canadian Securities Laws. |
| (tt) | None
of the directors or officers of the general partner of the Manager or any associate or
affiliate of any of the foregoing had, has or, to the knowledge of the Manager, intends
to have, any material interest, direct or indirect, in any material transaction contemplated
by this Agreement, any of the Related Agreements or the Registration Statement or the
Prospectuses or in any proposed transaction with the Trust which materially affects,
is material to or will materially affect the Trust, except as and to the extent disclosed
in the Registration Statement and the Prospectuses. |
| (uu) | The
Trust is a “foreign private issuer” (as defined in Rule 405 under
the Securities Act) and meets the requirements for use of Form F-10 under the Securities
Act and is eligible for the use of the Shelf Procedures under Canadian Securities
Laws; no order suspending the trading or distribution of the Units has been issued by
the Canadian Securities Commissions and no proceedings, for that purpose, have been instituted
or are pending or, to the Trust’s knowledge, are contemplated by the Canadian Securities
Commissions; no stop order suspending the effectiveness of the Registration Statement
has been issued by the Commission or the Canadian Securities Commissions, as applicable,
and no proceedings for that purpose have been instituted or are pending or to the Trust’s
knowledge, are contemplated by either the Commission or the Canadian Securities Commissions;
the Registration Statement, including the Base Prospectus and such amendments to such
Registration Statement as may have been required to the date of this Agreement, has been
prepared by the Trust under the applicable provisions of the Securities Act and
has been filed with the Commission; pursuant to Rule 467(a) under the Securities Act,
the Registration Statement became effective on September 6, 2024. The Canadian Final
Prospectus, the Registration Statement and the Prospectuses and the offer and sale of
Placement Units as contemplated hereby shall, upon their filing, meet the requirements
of NI 44-102 and comply in all material respects with the provisions thereof and other
applicable Canadian Securities Laws. Any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the Prospectuses or
to be filed as exhibits to the Registration Statement or the Prospectuses have been so
described or filed. Copies of the Registration Statement, the Prospectus or the Canadian
Final Prospectus, and any such amendments or supplements and all documents incorporated
by reference therein that were filed with the Commission or the Canadian Securities Commissions,
as applicable, on or prior to the date of this Agreement have been delivered, or are
available on EDGAR or SEDAR+, as the case may be, to the Agents and their counsel. The
Prospectus and the Canadian Final Prospectus will name the Agents as the agents in the
section entitled “Plan of Distribution.” There are no reports or information
that must be filed or made publicly available in connection with the listing of the Placement
Units on the TSX (other than routine post-closing filings) that have not been filed or
made publicly available as required, other than the Canadian Final Prospectus; there
are no documents required to be filed with the Canadian Securities Commissions, in connection
with the Canadian Base Prospectus or the Canadian Final Prospectus that have not been
filed as required. The Commission has not issued an order preventing or suspending the
use of the Registration Statement or the Base Prospectus, any free writing prospectus
or the Prospectus relating to the proposed offering of the Placement Units and no proceedings
for such purpose have been instituted or are pending or, to the Trust’s knowledge,
are contemplated or threatened by the Commission. The Trust has not distributed and,
prior to the later to occur of each Settlement Date and completion of the distribution
of the Placement Units, will not distribute any offering material in connection with
the offering or sale of the Placement Units other than the Registration Statement and
the Prospectus and any Issuer Free Writing Prospectus (as defined below) to which the
Agents have consented, which consent shall not be unreasonably withheld or delayed. |
| (vv) | The
Trust has not relied upon the Agents or legal counsel for the Agents for any legal, tax
or accounting advice in connection with the offering and sale of the Placement Units. |
| (ww) | There
is and has been no failure on the part of the Trust or the Manager or any of their directors
or officers, in their capacities as such, to comply in all material respects with any
applicable provisions of the Sarbanes-Oxley Act and the rules and regulations promulgated
thereunder. Each of the principal executive officer and the principal financial officer
of the Trust (or each former principal executive officer of the Trust and each former
principal financial officer of the Trust as applicable) has made all certifications required
by Sections 302 and 906 of the Sarbanes-Oxley Act with respect to all reports, schedules,
forms, statements and other documents required to be filed by it with the Commission.
For purposes of the preceding sentence, “principal executive officer” and
“principal financial officer” shall have the meanings given to such terms
in the Sarbanes-Oxley Act. |
| (xx) | The
Manager, on behalf of the Trust, is not a party to any agreement with an agent or underwriter
for any other “at-the-market” or continuous equity transaction. |
| (yy) | The
Trust acknowledges and agrees that the Agents have informed the Trust that the Agents
may, to the extent permitted under the Securities Act and the Exchange Act, purchase
and sell Units for its own account while this Agreement is in effect, provided,
that (i) no such purchase or sales shall take place while a Placement Notice is in effect
(except to the extent each Agent may engage in sales of Placement Units purchased or
deemed purchased from the Trust as a “riskless principal” or in a
similar capacity) and (ii) the Trust shall not be deemed to have authorized or consented
to any such purchases or sales by the Agents. |
| (zz) | Neither
the issuance, sale and delivery of the Placement Units nor the application of the proceeds
thereof by the Trust as described in the Registration Statement and the Prospectuses
will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System
or any other regulation of such Board of Governors. |
| (aaa) | On
each Settlement Date, all stock transfer or other taxes (other than income taxes) which
are required to be paid in connection with the sale and transfer of the Placement Units
to be sold hereunder will be, or will have been, fully paid or provided for by
the Trust and all laws imposing such taxes will be or will have been fully complied with. |
| (bbb) | The
Units are registered pursuant to Section 12(b) of the Exchange Act and are listed
for trading on the NYSE under the symbol “SPPP” and the TSX under the symbols
“SPPP” and “SPPP.U,” and the Trust has taken no action designed
to terminate the registration of the Units under the Exchange Act or delisting the Units
from either of the Exchanges, nor, except as disclosed in the Registration Statement
and the Prospectuses, has the Trust received any notification that the Commission, the
Canadian Securities Commissions or either of the Exchanges is contemplating terminating
such registration or listing. Except as disclosed in the Registration Statement and the
Prospectuses, the Trust has complied in all material respects with the applicable requirements
of the Exchanges for maintenance of inclusion of the Units thereon. The Trust has obtained
all necessary consents, approvals, authorizations or orders of, or filing, notification
or registration with, the Exchanges, the Commission and the Canadian Securities Commissions,
where applicable, required for the listing and trading of the Placement Units, subject
only to satisfying their standard listing and maintenance requirements. The Trust has
no reason to believe that it will not in the foreseeable future continue to be in compliance
with all such listing and maintenance requirements of each Exchange. |
Any
certificate signed by the Manager on behalf of the Trust or the Manager and delivered to the Agents or to counsel for the Agents
pursuant to or in connection with this Agreement shall be deemed to be a representation and warranty by the Trust and the Manager,
as applicable, to the Agents as to the matters set forth therein.
| Section 8 | Covenants
of the Trust and the Manager |
The
Trust and the Manager, jointly and severally, covenant with the Agents as follows:
| (a) | Registration
Statement and Prospectus Amendments. After the date of this Agreement and during
any period in which a Prospectus or Canadian Final Prospectus relating to any Placement
Units is required to be delivered by the Agents under the Securities Act or Canadian
Securities Laws (including in circumstances where such requirement may be satisfied pursuant
to Rule 172 under the Securities Act), (i) the Trust will notify the Agents promptly
of the time when any subsequent amendment to the Registration Statement, other than documents
incorporated by reference has been filed with the Commission or the Canadian Securities
Commissions and/or has become effective or any subsequent supplement to the Prospectus
or Canadian Final Prospectus has been filed and of any request by the Commission for
any amendment or supplement to the Registration Statement, Prospectus or Canadian Final
Prospectus, as applicable, or for additional information, (ii) the Trust will prepare
and file with the Commission or the Canadian Securities Commissions, promptly upon the
Agents’ request, any amendments or supplements to the Registration Statement, Prospectus
or the Canadian Final Prospectus, as applicable, that, in the Agents’ reasonable
opinion, may be necessary or advisable in connection with the distribution of the Placement
Units by the Agents (provided, however, that the failure of the Agents to make
such request shall not relieve the Trust or the Manager of any obligation or liability
hereunder, or affect the Agents’ right to rely on the representations and warranties
made by the Trust and the Manager in this Agreement and provided, further, that
the only remedy the Agents shall have with respect to the failure to make such filing
shall be to cease making sales under this Agreement until such amendment or supplement
is filed), (iii) the Trust will not file any amendment or supplement to the Registration
Statement, Prospectus or Canadian Final Prospectus relating to the Placement Units or
a security convertible into the Placement Units unless a copy thereof has been submitted
to the Agents within a reasonable period of time before the filing and the Agents has
not objected thereto (provided, however, that the failure of the Agents to make
such objection shall not relieve the Trust or the Manager of any obligation or liability
hereunder, or affect the Agents’ right to rely on the representations and warranties
made by the Trust or the Manager in this Agreement and provided, further, that
the only remedy the Agents shall have with respect to the failure by the Trust or the
Manager to obtain such consent shall be to cease making sales under this Agreement) and
the Trust will furnish to the Agents at the time of filing thereof a copy of any document
that upon filing is deemed to be incorporated by reference into the Registration Statement,
Prospectus or Canadian Final Prospectus, except for those documents available via EDGAR
or SEDAR+, as applicable and (iv) the Trust will cause each amendment or supplement to
the Prospectus or the Canadian Final Prospectus to be filed with the Commission or the
Canadian Securities Commissions as required pursuant to applicable Canadian Securities
Laws and the provisions of Form F-10 or, in the case of any document to be incorporated
therein by reference, to be filed with the Commission as required pursuant to the Exchange
Act or applicable Canadian Securities Laws, within the time period prescribed (the determination
to file or not file any amendment or supplement with the Commission under this Section 8(a),
based on the Trust’s reasonable opinion or reasonable objections, shall be made
exclusively by the Trust). |
| (b) | Notice
of Commission Stop Orders. The Trust will advise the Agents, promptly after it receives
notice or obtains knowledge thereof, of the issuance or threatened issuance by the Commission
or the Canadian Securities Commissions of any stop order suspending the effectiveness
of the Registration Statement, of the suspension of the qualification of the Placement
Units for offering or sale in any jurisdiction, or of the initiation or threatening of
any proceeding for any such purpose; and it will promptly use its commercially reasonable
efforts to prevent the issuance of any stop order or to obtain its withdrawal if such
a stop order should be issued. The Trust will advise the Agents promptly after it receives
any request by the Commission or the Canadian Securities Commissions for any amendments
to the Registration Statement or any amendment or supplements to the Prospectus, Canadian
Final Prospectus or any Issuer Free Writing Prospectus or for additional information
related to the offering of the Placement Units or for additional information related
to the Registration Statement, the Prospectus, the Canadian Final Prospectus or any Issuer
Free Writing Prospectus. |
| (c) | Delivery
of Prospectus; Subsequent Changes. During any period in which the Prospectus relating
to the Placement Units is required to be delivered by the Agents under the Securities
Act or Canadian Securities Laws with respect to the offer and sale of the Placement
Units, (including in circumstances where such requirement may be satisfied pursuant to
Rule 172 under the Securities Act), the Trust will comply with all requirements imposed
upon it by the Securities Act and the Canadian Securities Laws, as from time to
time in force, and file on or before their respective due dates all reports required
to be filed by the Trust with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d)
or any other provision of or under the Exchange Act or with the Canadian Securities Commissions
pursuant to Canadian Securities Laws. If during such period any event occurs as a result
of which the Prospectus or the Canadian Final Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances then existing,
not misleading, or if during such period it is necessary to amend or supplement the Registration
Statement or Prospectus to comply with the Securities Act or the Canadian Final
Prospectus to comply with applicable Canadian Securities Laws, the Manager, on behalf
of the Trust, will promptly notify the Agents to suspend the offering of Placement Units
during such period and the Trust will promptly amend or supplement the Registration Statement,
Prospectus or the Canadian Final Prospectus (at the expense of the Trust) so as to correct
such statement or omission or effect such compliance; provided however, that the
Trust may delay the filing of any such amendment or supplement if the manager deems it
to be in the best interest of the Trust. |
| (d) | Listing
of Placement Units. During any period in which the Prospectus or the Canadian Final
Prospectus relating to the Placement Units is required to be delivered by the Agents
under the Securities Act or Canadian Securities Laws, as applicable, with respect
to the offer and sale of the Placement Units, the Manager, on behalf of the Trust, will
use its reasonable best efforts to cause the Placement Units to be listed on each Exchange. |
| (e) | Delivery
of Registration Statement and Prospectus. The Trust will furnish to the Agents and
their counsel (at the expense of the Trust) copies of the Registration Statement, Prospectus
and the Canadian Final Prospectus (including all documents incorporated by reference
therein), and all amendments and supplements to the Registration Statement, Prospectus
or the Canadian Final Prospectus that are filed with the Commission or the Canadian Securities
Commissions, as applicable, during any period in which the Prospectus or the Canadian
Final Prospectus relating to the Placement Units is required to be delivered under the
Securities Act (including all documents filed with the Commission during such
period that are deemed to be incorporated by reference therein) or delivered under Canadian
Securities Law, as applicable, in each case as soon as reasonably practicable and in
such quantities as the Agents may from time to time reasonably request and, at the Agents’
request, will also furnish copies of the Prospectus to each exchange or market on which
sales of the Placement Units may be made; provided, however, that the Trust
shall not be required to furnish any document (other than the Prospectus) to the Agents
to the extent such document is available on EDGAR or SEDAR+, as the case may be. |
| (f) | Earnings
Statement. The Trust will make generally available to its security holders as soon
as practicable, but in any event not later than 15 months after the end of the Trust’s
current fiscal quarter, an earnings statement covering a 12-month period that satisfies
the provisions of Section 11(a) and Rule 158 of the Securities Act. |
| (g) | Use
of Proceeds. The Trust will use the Net Proceeds as described in the Prospectus in
the section entitled “Use of Proceeds.” |
| (h) | Notice
of Other Sales. Other than Permitted Private Placements, the Trust will not, without
the prior written consent of the Agents, directly or indirectly, offer to sell, sell,
contract to sell, grant any option to sell or otherwise dispose of any Units (other than
the Placement Units offered pursuant to this Agreement) or securities convertible into
or exchangeable for Units, warrants or any rights to purchase or acquire, Units during
the period beginning on the fifth (5th) Trading Day immediately prior to the date on
which any Placement Notice is delivered to the Agents hereunder and ending on the fifth
(5th) Trading Day immediately following the final Settlement Date with respect to Placement
Units sold pursuant to such Placement Notice (or, if the Placement Notice has been terminated
or suspended prior to the sale of all Placement Units covered by a Placement Notice,
the date of such suspension or termination); and will not directly or indirectly in any
other “at-the-market” or continuous equity transaction offer to sell,
sell, contract to sell, grant any option to sell or otherwise dispose of any Units (other
than the Placement Units offered pursuant to this Agreement) or securities convertible
into or exchangeable for Units, warrants or any rights to purchase or acquire, Units
prior to the later of the termination of this Agreement and the sixtieth (60th) day immediately
following the final Settlement Date with respect to Placement Units sold pursuant to
such Placement Notice; provided, however, that such restrictions will not be required
in connection with the Trust’s issuance or sale of (i) Units, options to purchase
Units or Units issuable upon the exercise of options, pursuant to any employee or director
stock option or benefits plan, stock ownership plan or dividend reinvestment plan (but
not Units subject to a waiver to exceed plan limits in respect of any such dividend reinvestment
plan) of the Trust whether now in effect or hereafter implemented, (ii) Units issuable
upon conversion of securities or the exercise of warrants, options or other rights in
effect or outstanding, and disclosed in filings by the Trust available on SEDAR+ or otherwise
in writing to the Agents and (iii) Units or securities convertible into or exchangeable
for Units as consideration for mergers, acquisitions, other business combinations or
strategic alliances occurring after the date of this Agreement which are not issued for
capital raising purposes. For the purposes of this Agreement, “Permitted
Private Placements” shall mean any issuance of Units where the consideration
to be received by the Trust in exchange of such Units consists of platinum and palladium. |
| (i) | Change
of Circumstances. The Manager, on behalf of the Trust, will, at any time during the
pendency of a Placement Notice advise the Agents promptly after it shall have received
notice or obtained knowledge thereof, of any information or fact that would alter or
affect in any material respect any opinion, certificate, letter or other document required
to be provided to the Agents pursuant to this Agreement. |
| (j) | Due
Diligence Cooperation. The Manager, on behalf of the Trust, will cooperate with any
reasonable due diligence review conducted by the Agents or its representatives in connection
with the transactions contemplated hereby, including, without limitation, providing information
and making available documents and senior corporate officers, during regular business
hours and at the Trust’s principal offices, as the Agents may reasonably request. |
| (k) | Required
Filings Relating to Placement of Placement Units. The Trust agrees that on such dates
as the Canadian Securities Laws and Form F-10 shall require, the Trust will (i) file
a prospectus supplement with the Canadian Securities Commissions and the Commission (each
and every filing, a “Filing Date”), which prospectus supplement
will set forth, within the relevant period, the amount of Placement Units to be sold
through the Agents, the Net Proceeds to the Trust and the compensation payable to the
Agents with respect to such Placement Units, and (ii) deliver such number of copies of
each such prospectus supplement to each exchange or market on which such sales were effected
as may be required by the rules or regulations of such exchange or market. In each quarterly
report, annual information form or annual financial statements filed by the Trust in
respect of any period in which sales of Placement Units were made by the Agents under
this Agreement, the Trust shall set forth with regard to such period the number of Placement
Units sold through the Agents under this Agreement, the Net Proceeds received by the
Trust and the compensation paid by the Trust to the Agents with respect to sales of Placement
Units pursuant to this Agreement, in each case to the extent required by Canadian Securities
Laws. The Agents will deliver to the Trust for each fiscal quarter of the Trust and fiscal
year of the Trust during which Units are sold pursuant to this Agreement, and otherwise
as reasonably requested by the Trust to enable the Trust to meet its quarterly and annual
or other reporting requirements under Canadian Securities Laws or any applicable requirements
of the TSX or NYSE, within three Trading Days (or such lesser number of days as agreed
to by the Trust and the Agents) after the end of the fiscal quarter or fiscal year, as
applicable, a report stating the number of Units distributed pursuant to this Agreement
during such fiscal quarter or fiscal year, together with such other information reasonably
requested and specified in this Section 8(k), calculated on a quarterly basis or annual basis, as appliable. For so long
as the Units are listed on the Exchanges, the Trust will provide the Exchanges with all
information it requires with respect to the offering and sale of Placement Units pursuant
to this Agreement within the timelines prescribed by the Exchanges. |
| (l) | Representation
Dates; Certificate. (i) On or prior to the date of the first Placement Notice, and
(ii) each time the Trust: |
| (i) | files
the Prospectus relating to the Placement Units or amends or supplements (other than a
prospectus supplement relating solely to an offering of securities other than the Placement
Units) the Registration Statement or the Prospectus relating to the Placement Units by
means of a post- effective amendment, sticker, or supplement but not by means of incorporation
of documents by reference into the Registration Statement or the Prospectus relating
to the Placement Units; |
| (ii) | files
or amends an annual report on Form 20-F or Form 40-F under the Exchange Act (including
any Form 20-F/A or Form 40-F/A containing amended financial statements or a material
amendment to the previously filed Form 20-F); |
| (iii) | files
or furnishes its interim financial statements on Form 6-K under the Exchange Act; or |
| (iv) | files
or furnishes a Form 6-K containing amended financial statements under the Exchange Act
(each date of filing of one or more of the documents referred to in clauses (i) through
(iv) shall be a “Representation Date”); |
the
Manager, on behalf of the Trust, shall furnish the Agents (but in the case of clause (iv) above, only if the Agents reasonably
determine that the information contained in such Form 6-K is material) with a certificate, in the form and substance satisfactory
to the Agents and their counsel, substantially similar to the form previously provided to the Agents and their counsel, modified,
as necessary, to relate to the Registration Statement and the Prospectus as amended or supplemented. The requirement to provide
a certificate under this Section 8(l) shall be waived for any Representation Date occurring at a time a Suspension is in effect,
which waiver shall continue until the earlier to occur of the date the Manager, on behalf of the Trust, delivers instructions
for the sale of Placement Units hereunder (which for such calendar quarter shall be considered a Representation Date) and the
next occurring Representation Date. Notwithstanding the foregoing, if the Manager, on behalf of the Trust, subsequently decides
to sell Placement Units following a Representation Date when a Suspension was in effect and did not provide the Agents with a
certificate under this Section 8(l), then before the Manager, on behalf of the Trust, delivers the instructions for the sale of
Placement Units or the Agents sell any Placement Units pursuant to such instructions, the Manager, on behalf of the Trust, shall
provide the Agents with a certificate in conformity with this Section 8(l) dated as of the date that the instructions for the
sale of Placement Units are issued.
| (m) | Legal
Opinions. (i) On or prior to the date of the first Placement Notice, and (ii) within
five (5) Trading Days of each Representation Date (except for any date that is a Representation
Date solely due to the filing of a prospectus supplement pursuant to Section 8(k)
hereunder) with respect to which the Manager, on behalf of the Trust, is obligated to
deliver a certificate pursuant to Section 8(l) for which no waiver is applicable and
excluding the date of this Agreement, the Trust shall cause to be furnished to the Agents
a written opinion of each of Seward & Kissel LLP (“U.S. Trust Counsel”)
(in favour of the U.S. Agents only) and Stikeman Elliott LLP (“Canadian Trust
Counsel”), or other counsel(s) satisfactory to the Agents, as applicable,
in form and substance satisfactory to the Agents and their counsel, substantially similar
to the forms previously provided to the Agents and their counsel, modified, as
necessary, to relate to the Registration Statement, the Canadian Final Prospectus and
the Prospectus, as applicable, as then amended or supplemented; provided, however,
that the Manager, on behalf of the Trust, shall be required to furnish to the Agents
no more than one opinion hereunder per calendar quarter. The requirement to provide an
opinion under this Section 8(l) shall be waived for any Representation Date occurring
at a time a Suspension is in effect, which waiver shall continue until the earlier to
occur of the date the Manager, on behalf of the Trust, delivers instructions for the
sale of Placement Units hereunder (which for such calendar quarter shall be considered
a Representation Date) and the next occurring Representation Date. Notwithstanding the
foregoing, if the Manager, on behalf of the Trust, subsequently decides to sell Placement
Units following a Representation Date when a Suspension was in effect and did not provide
the Agents with an opinion under this Section 8(l), then before the Manager, on behalf
of the Trust, delivers the instructions for the sale of Placement Units or the Agents
sell any Placement Units pursuant to such instructions, the Manager, on behalf of the
Trust, shall instruct U.S. Trust Counsel and Canadian Trust Counsel to provide the Agents
with an opinion in conformity with this Section 8(l) dated as of the date that the instructions
for the sale of Placement Units are issued. |
| (n) | Comfort Letter. (i) Prior to the
date of the first Placement Notice, and (ii) within five Trading Days of each Representation Date (except for any date that is a
Representation Date solely due to the filing of a prospectus supplement pursuant to Section 8(k) hereunder) with respect to
which the Manager, on behalf of the Trust, is obligated to deliver a certificate pursuant to Section 8(l) for which no waiver is
applicable and excluding the date of this Agreement, the Trust shall cause its independent registered accounting firm to furnish the
Agents a letter (the “Comfort Letters”), dated the date the Comfort Letter is delivered, which shall meet the
requirements set forth in this Section 8(n); provided, that if requested by the Agents, the Trust shall cause a Comfort
Letter to be furnished to the Agents within ten (10) Trading Days of the date of occurrence of any material transaction or event,
including the restatement of the Trust’s financial statements. The Comfort Letter from the Trust’s independent
registered public accounting firm shall be in a form and substance satisfactory to the Agents, (i) confirming that they are an
independent registered public accounting firm within the meaning of the Securities Act and the Public Company Accounting
Oversight Board (United States) and are an independent auditor as required by Canadian Securities Laws, (ii) stating, as of such
date, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by
accountants’ “comfort letters” to underwriters in connection with registered public offerings (the first such
letter, the “Initial Comfort Letter”) and (iii) updating the Initial Comfort Letter with any information
that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to
the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter. The requirement to provide a
Comfort Letter under this Section 8(n) shall be waived for any Representation Date occurring at a time a Suspension is in effect,
which waiver shall continue until the earlier to occur of the date the Manager, on behalf of the Trust, delivers instructions for
the sale of Placement Units hereunder (which for such calendar quarter shall be considered a Representation Date) and the next
occurring Representation Date. Notwithstanding the foregoing, if the Manager, on behalf of the Trust, subsequently decides to sell
Placement Units following a Representation Date when a Suspension was in effect and did not provide the Agents with a Comfort Letter
under this Section 8(n), then before the Manager, on behalf of the Trust, delivers the instructions for the sale of Placement Units
or the Agents sell any Placement Units pursuant to such instructions, the Manager, on behalf of the Trust, shall cause the current
auditor of the Trust to provide the Agents with a Comfort Letter in conformity with this Section 8(n) dated as of the date that the
instructions for the sale of Placement Units are issued. |
| (o) | Market
Activities. The Trust and Manager will not, directly or indirectly, (i) take any
action designed to cause or result in, or that constitutes or would reasonably be expected
to constitute, the stabilization or manipulation of the price of any security of the
Trust to facilitate the sale or resale of Units or (ii) sell, bid for, or purchase Units,
or pay anyone any compensation for soliciting purchases of the Placement Units other
than the Agents; provided, however, that the foregoing shall not prevent
the Trust and the Manager from engaging in marketing activities in the ordinary course
of business. |
| (p) | Investment
Company Act. The Trust will conduct its affairs in such a manner so as to reasonably
ensure that it will not be or become, at any time prior to the termination of this Agreement,
required to register as an “investment company,” as such term is defined
in the Investment Company Act. |
| (q) | No
Offer to Sell. Other than an Issuer Free Writing Prospectus approved in advance by
the Manager, on behalf of the Trust, and the Agents in their capacity as agents hereunder,
neither the Agents nor the Manager, on behalf of the Trust (including its agents and
representatives, other than the Agents in its capacity as such) will make, use, prepare,
authorize, approve or refer to any written communication (as defined in Rule 405 under
the Securities Act), required to be filed with the Commission, that constitutes an offer
to sell or solicitation of an offer to buy Placement Units hereunder. |
| (r) | Blue
Sky and Other Qualifications. The Manager, on behalf of the Trust, will use its commercially
reasonable efforts, in cooperation with the Agents, to qualify the Placement Units for
offering and sale, or to obtain an exemption for the Placement Units to be offered and
sold, under the applicable securities laws of such states and other jurisdictions (domestic
or foreign) as the Agents may designate and to maintain such qualifications and exemptions
in effect for so long as required for the distribution of the Placement Units (but in
no event for less than one year from the date of this Agreement); provided, however,
that the Trust shall not be obligated to file a prospectus, registration statement or
similar disclosure document with any regulatory authority or any general consent to service
of process or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in respect
of doing business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Placement Units have been so qualified or exempt, the Trust
will file such statements and reports as may be required by the laws of such jurisdiction
to continue such qualification or exemption, as the case may be, in effect for so long
as required for the distribution of the Placement Units (but in no event for less than
one year from the date of this Agreement). |
| (s) | Sarbanes-Oxley
Act. The Manager, on behalf of the Trust, will maintain and keep accurate books and
records reflecting their assets and maintain internal accounting controls in a manner
designed to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with
generally accepted accounting principles and including those policies and procedures
that (i) pertain to the maintenance of records that in reasonable detail accurately and
fairly reflect the transactions and dispositions of the assets of the Trust, (ii) provide
reasonable assurance that transactions are recorded as necessary to permit the preparation
of the Trust’s consolidated financial statements in accordance with IFRS, (iii)
that receipts and expenditures of the Trust are being made only in accordance with management’s
and the Trust’s directors’ authorization, and (iv) provide reasonable assurance
regarding prevention or timely detection of unauthorized acquisition, use or disposition
of the Trust’s assets that could have a material effect on its financial statements.
The Manager, on behalf of the Trust, will maintain such controls and other procedures,
including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley
Act, and the applicable regulations thereunder that are designed to ensure that information
required to be disclosed by the Trust in the reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported, within the time periods
specified in the Commission’s rules and forms, including, without limitation, controls
and procedures designed to ensure that information required to be disclosed by the Trust
in the reports that it files or submits under the Exchange Act is accumulated and communicated
to the Manager, on behalf of the Trust management, including its principal executive
officer and principal financial officer, or persons performing similar functions, as
appropriate to allow timely decisions regarding required disclosure and to ensure that
material information relating to the Trust is made known to them by others within those
entities, particularly during the period in which such periodic reports are being prepared. |
| (t) | Secretary’s
Certificate; Further Documentation. On or prior to the date of the first Placement
Notice, the Trust and Manager shall deliver to the Agents a certificate of an officer
of the Manager, on behalf of the Trust, and attested to by an executive officer of the
Manager, dated as of such date, certifying as to (i) the constituent and governing documents
of the Trust and Manager, (ii) the resolutions of the Trust and Manager authorizing the
execution, delivery and performance of this Agreement and the issuance of the Placement
Units, and (iii) the incumbency of the officers duly authorized to execute this Agreement
and the other documents contemplated by this Agreement. Within five (5) Trading Days
of each Representation Date, the Manager, on behalf of the Trust, shall have furnished
to the Agents such further information, certificates and documents as the Agents may
reasonably request. |
| (u) | Canadian
Securities Laws, Securities Act, and Exchange Act. The Manager, on behalf of the
Trust, will use its commercially reasonable efforts to comply with all requirements imposed
upon it by Canadian Securities Laws, the Securities Act, the Exchange Act and the rules
of the Exchanges as from time to time in force, so far as necessary to permit the continuance
of sales of, or dealings in, the Placement Units as contemplated by the provisions hereof
and the Prospectus. |
| (v) | Reports,
etc. The Manager, on behalf of the Trust, shall (i) file promptly all reports required
to be filed by the Trust with the Commission or the Canadian Securities Commissions,
(ii) file promptly all reports and other documents required to be filed by the Trust
to comply with Canadian Securities Laws, (iii) provide the Agents with a copy of such
reports and statements and other documents filed by the Trust pursuant to the Canadian
Securities Laws and to promptly notify the Agents of such filing unless available on
SEDAR+, and (iv) advise the Agents, promptly after it receives notices thereof, (x) of
any request by the Canadian Securities Commissions or the Commission to amend or supplement
the Registration Statement, the Canadian Base Prospectus, the Base Prospectus, the Canadian
Final Prospectus, the Prospectus or the Issuer Free Writing Prospectus, if any, or for
additional information with respect thereto or (y) of the issuance by the Commission
or the Canadian Securities Commissions of any stop order suspending the use or effectiveness
of the Registration Statement or either of the Prospectuses, respectively, or the institution
or threatening of any proceeding for any such purpose. |
| (w) | Shelf
Procedures. The Trust shall comply with the requirements of the Shelf Procedures
and General Instruction II.L of Form F-10 and file the Canadian Final Prospectus with
the Canadian Securities Commissions and the Prospectus with the Commission on the day
which is no later than two Business Days following the date of this Agreement. If during
the period in which a prospectus is required by law to be delivered by the Agents, any
event shall occur that makes any statement made in the Registration Statement, the Prospectus,
or the Canadian Final Prospectus or the Issuer Free Writing Prospectus, if any, untrue
or that as a result of which, in the judgment of the Trust or in the reasonable opinion
of the Agents or counsel for the Agents, it becomes necessary to amend or supplement
the Registration Statement in order to make the statements therein not misleading, or
the Prospectus or the Canadian Final Prospectus in order to (i) constitute full, true
and plain disclosure of all material facts, and (ii) make the statements therein, in
the light of the circumstances in which they are made, not misleading, or, if it is necessary
at any time to amend or supplement the Registration Statement, the Prospectus, the Canadian
Final Prospectus or the Issuer Free Writing Prospectus, if any, to comply with any law,
the Trust promptly will prepare and file with the Commission and the Canadian Securities
Commissions, and furnish at its own expense to the Agents, an appropriate amendment to
the Registration Statement or supplement to the Prospectus, Canadian Final Prospectus
or the Issuer Free Writing Prospectus, if any, so that the Registration Statement as
so amended or the Prospectus or the Canadian Final Prospectus, as so amended or supplemented
will (x) constitute full, true and plain disclosure of all material facts; and (y) not,
in the light of the circumstances when it is so delivered, be misleading, or so that
the Registration Statement, Prospectus or the Canadian Final Prospectus shall comply
with such law. Before amending the Registration Statement or amending or supplementing
the Prospectus or the Canadian Final Prospectus in connection with this Agreement, the
Trust shall furnish the Agents with a copy of such proposed amendment or supplement and
shall not file such amendment or supplement to which the Agents reasonably object. |
| Section 9 | Payment
of Expenses |
The
Trust will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the preparation
and filing of the Registration Statement, including any fees required by the Commission or the Canadian Securities Commissions,
and the printing or electronic delivery of the Registration Statement, each of the Trust Form F-X and the Trustee Form F-X and
the Prospectuses as originally filed and of each amendment and supplement thereto, in such number as the Agents shall deem necessary,
(ii) the printing and delivery to the Agents of this Agreement and such other documents as may be required in connection with
the offering, purchase, sale, issuance or delivery of the Placement Units, (iii) the preparation, issuance and delivery of the
certificates, if any, for the Placement Units to the Agents, including any stock or other transfer taxes and any capital duties,
stamp duties or other duties or taxes payable upon the sale, issuance or delivery of the Placement Units to the Agents, (iv) the
fees and disbursements of the counsel, accountants and other advisors to the Trust, (v) the fees and disbursements of the counsel
to the Agents, payable upon the execution of this Agreement, in an amount not to exceed US$25,000, (vi) the qualification or exemption
of the Placement Units under state and provincial securities laws in accordance with the provisions of Section 8(r) hereof, including
filing fees, but excluding fees of the Agents’ counsel, (vii) the printing and delivery to the Agents of copies of any Permitted
Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto in such number as the Agents shall
deem necessary, (viii) the preparation, printing and delivery to the Agents of copies of the blue sky survey in an amount not
to exceed $2,500, (ix) the fees and expenses of the transfer agent and registrar for the Units, (x) the filing and other fees
incident to any review by FINRA of the terms of the sale of the Placement Units including the fees of the Agents’ counsel
(subject to the cap set forth in clause (v) above) and (xi) the fees and expenses incurred in connection with the listing of the
Placement Units on each Exchange.
| Section 10 | Conditions
to an Agent’s Obligations |
The
obligations of the Agents hereunder with respect to a Placement will be subject to the continuing accuracy and completeness of
the representations and warranties made by the Trust and Manager herein, to the due performance by the Trust and Manager of their
obligations hereunder, to the completion by the Agents of a due diligence review satisfactory to them in their reasonable judgment,
and to the continuing satisfaction (or waiver by the Designated Agent in respect of the Placement in its sole discretion) of the
following additional conditions:
| (a) | Registration
Statement Effective. The Registration Statement shall have become effective and shall
be available for the (i) resale of all Placement Units issued to an Agent and not yet
sold by such Agent and (ii) sale of all Placement Units contemplated to be issued by
any Placement Notice. |
| (b) | No
Material Notices. None of the following events shall have occurred and be continuing:
(i) receipt by the Trust of any request for additional information from the Commission,
the Canadian Securities Commissions or any other federal, state or provincial governmental
authority during the period of effectiveness of the Registration Statement, the response
to which would require any post-effective amendments or supplements to the Registration
Statement or the Prospectus, (ii) the issuance by the Commission, the Canadian Securities
Commissions or any other federal, state or provincial governmental authority of any stop
order suspending the use of or effectiveness of the Registration Statement or the initiation
of any proceedings for that purpose, (iii) receipt by the Trust of any notification with
respect to the suspension of the qualification or exemption from qualification of any
of the Placement Units for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose, or (iv) the occurrence of any event that makes any
statement made in the Registration Statement or either of the Prospectuses or any document
incorporated or deemed to be incorporated therein by reference untrue in any material
respect or that requires the making of any changes in the Registration Statement, the
Prospectuses or documents so that, in the case of the Registration Statement, it will
not contain any materially untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein not misleading
and, that in the case of each Prospectus, it will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which they were
made, not misleading, and (iv) the Manager’s, on behalf of the Trust, reasonable
determination that an amendment to a Prospectus would be appropriate. |
| (c) | No
Misstatement or Material Omission. The Agents shall not have advised the Manager,
on behalf of the Trust, that the Registration Statement or Prospectus, or any amendment
or supplement thereto, contains an untrue statement of fact that in the Agents’
reasonable opinion is material, or omits to state a fact that in the Agents’ reasonable
opinion is material and is required to be stated therein or is necessary to make the
statements therein not misleading. |
| (d) | Material
Changes. Except as contemplated in the Prospectuses, or disclosed in the Trust’s
reports filed with the Commission and the Canadian Securities Commissions, there shall
not have been any material adverse change in the authorized Units or other equity of
the Trust or any material adverse effect or any development that could reasonably be
expected to cause a material adverse effect, or a downgrading in or withdrawal of the
rating assigned to any of the Trust’s securities (other than asset backed securities)
by any rating organization or a public announcement by any rating organization that it
has under surveillance or review its rating of any of the Trust’s securities (other
than asset backed securities), the effect of which, in the case of any such action by
a rating organization described above, in the reasonable judgment of the Agents (without
relieving the Trust of any obligation or liability it may otherwise have), is so material
as to make it impracticable or inadvisable to proceed with the offering of the Placement
Units on the terms and in the manner contemplated in the Prospectus. |
| (e) | Legal
Opinions. The Agents shall have received the opinions and negative assurance letters,
as applicable, of each of U.S. Trust Counsel and Canadian Trust Counsel required to be
delivered pursuant to Section 8(m) on or before the date on which such delivery of such
opinion is required pursuant to Section 8(m). |
| (f) | Comfort
Letter. The Agents shall have received the Comfort Letters required to be delivered
pursuant to Section 8(n) on or before the date on which such delivery of such Comfort
Letters are required pursuant to Section 8(n). |
| (g) | Representation
Certificate. The Agents shall have received the certificate required to be delivered
pursuant to Section 8(l) on or before the date on which delivery of such certificate
is required pursuant to Section 8(l). |
| (h) | No
Suspension. Trading in the Units shall not have been suspended on either Exchange
and the Units shall not have been delisted from either Exchange. |
| (i) | Other
Materials. On each date on which the Manager, on behalf of the Trust, is required
to deliver a certificate pursuant to Section 8(l), the Manager, on behalf of the Trust,
shall have furnished to the Agents such appropriate further information, opinions, certificates,
letters and other as the Agents may reasonably request. All such opinions, certificates,
letters and other documents will be in compliance with the provisions hereof. |
| (j) | Securities
Act Filings Made. All filings with the Canadian Securities Commissions and the Commission
required by Canadian Securities Laws and Form F-10 to have been filed prior to the issuance
of any Placement Notice hereunder shall have been made within the applicable time period
prescribed for such filing. |
| (k) | Approval
for Listing. The Placement Units shall either have been (i) approved for listing
on each Exchange, subject only to notice of issuance, or (ii) the Manager, on behalf
of the Trust, shall have filed an application for listing of the Placement Units on each
Exchange at, or prior to, the issuance of any Placement Notice and each Exchange shall
have reviewed such application and not provided any objections thereto. |
| (l) | FINRA.
If applicable, FINRA shall have raised no objection to the terms of this offering and
the amount of compensation allowable or payable to the Agents as described in the Prospectus. |
| (m) | No
Termination Event. There shall not have occurred any event that would permit the
Agents to terminate this Agreement pursuant to Section 13(a). |
| (n) | No
Governmental Objections. No U.S., Canadian, or other governmental authority shall
have issued any opinion, guidance, objection, or advice that can be construed as limiting
or restricting in any way the ability of the Agents to carry out the transactions contemplated
hereunder. |
| Section 11 | Indemnification
and Contribution |
| (a) | Trust
and Manager Indemnification. The Trust and the Manager, jointly and severally, agree
to indemnify and hold harmless the Agents, their affiliates and their respective partners,
members, directors, officers, employees and agents and each person, if any, who controls
the appliable Agent or any respective affiliate within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act as follows: |
| (i) | against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint
or several, arising out of or based upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement (or any amendment thereto),
or the omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or arising out of
any untrue statement or alleged untrue statement of a material fact included in any related
Issuer Free Writing Prospectus or the Prospectuses (or any amendment or supplement thereto),
or the omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were
made, not misleading; |
| (ii) | against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint
or several, to the extent of the aggregate amount paid in settlement of any litigation,
or any investigation or proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 11(d)
below) any such settlement is effected with the written consent of the Trust and the
Manager, which consent shall not unreasonably be delayed or withheld; and |
| (iii) | against
any and all expense whatsoever, as incurred (including the fees and disbursements of
counsel), reasonably incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above, |
provided,
however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement or omission made solely in reliance upon and in conformity
with the Agents’ Information (as defined below); and provided, further, that this indemnity shall not impose
any personal liability to any trustee and/or unitholder of the Trust and there will be no resort to the trustee’s and/or
unitholder’s private property for satisfaction of any obligation or claim arising out of or in connection with this Agreement.
| (b) | Indemnification
by the Agents. Each respective Agent, severally but not jointly, agrees to indemnify
and hold harmless the Manager and the Trust, the officers of the Manager who sign the
Registration Statement and each person, if any, who controls the Trust within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act against
any and all loss, liability, claim, damage and expense described in the indemnity contained
in Section 11(a), as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement (or any
amendments thereto) or the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with information relating to such respective Agent and furnished
to the Trust in writing by such respective Agent expressly for use therein. The Trust
and the Manager hereby acknowledge that the only information that the Agents have furnished
to the Trust and the Manager expressly for use in the Registration Statement, the Prospectus
or any Issuer Free Writing Prospectus (or any amendment or supplement thereto) are the
statements set forth in the seventh paragraph and the last sentence in the ninth paragraph
under the caption “Plan of Distribution” in the Prospectus
(the “Agents’ Information”). |
| (c) | Procedure.
Any party that proposes to assert the right to be indemnified under this Section 11 will,
promptly after receipt of notice of commencement of any action against such party in respect
of which a claim is to be made against an indemnifying party or parties under this Section
11, notify each such indemnifying party of the commencement of such action, enclosing a copy
of all papers served, but the omission so to notify such indemnifying party will not relieve
the indemnifying party from (i) any liability that it might have to any indemnified party
otherwise than under this Section 11 and (ii) any liability that it may have to any indemnified
party under the foregoing provision of this Section 11 unless, and only to the extent that,
such omission results in the forfeiture of substantive rights or defenses by the indemnifying
party. If any such action is brought against any indemnified party and it notifies the indemnifying
party of its commencement, the indemnifying party will be entitled to participate in and,
to the extent that it elects by delivering written notice to the indemnified party promptly
after receiving notice of the commencement of the action from the indemnified party, jointly
with any other indemnifying party similarly notified, to assume the defense of the action,
with counsel reasonably satisfactory to the indemnified party, and after notice from the
indemnifying party to the indemnified party of its election to assume the defense, the indemnifying
party will not be liable to the indemnified party for any legal or other expenses except
as provided below and except for the reasonable costs of investigation subsequently
incurred by the indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the fees, expenses and other
charges of such counsel will be at the expense of such indemnified party unless (i) the employment
of counsel by the indemnified party has been authorized in writing by the indemnifying party,
(ii) the indemnified party has reasonably concluded (based on advice of counsel) that there
may be legal defenses available to it or other indemnified parties that are different from
or in addition to those available to the indemnifying party, (iii) a conflict or potential
conflict exists (based on advice of counsel to the indemnified party) between the indemnified
party and the indemnifying party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified party), or (iv) the
indemnifying party has not in fact employed counsel to assume the defense of such action
or counsel reasonably satisfactory to the indemnified party, in each case, within a reasonable
time after receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party or parties shall
not, in connection with any proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees, disbursements and other charges of more than one separate
firm (plus local counsel) admitted to practice in such jurisdiction at any one time for all
such indemnified party or parties. All such fees, disbursements and other charges will be
reimbursed by the indemnifying party promptly after the indemnifying party receives a written
invoice relating to fees, disbursements and other charges in reasonable detail. An indemnifying
party will not, in any event, be liable for any settlement of any action or claim effected
without its written consent. No indemnifying party shall, without the prior written consent
of each indemnified party, settle or compromise or consent to the entry of any judgment in
any pending or threatened claim, action or proceeding relating to the matters contemplated
by this Section 11 (whether or not any indemnified party is a party thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each indemnified
party, in form and substance reasonably satisfactory to such indemnified party, from all
liability arising out of such litigation, investigation, proceeding or claim, and (ii) does
not include a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party. |
| (d) | Settlement
Without Consent if Failure to Reimburse. If an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for reasonable fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any settlement
of the nature contemplated by Section 11(a)(ii) effected without its written consent
if (i) such settlement is entered into more than 45 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall have received notice
of the terms of such settlement at least 30 days prior to such settlement being entered
into, and (iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement. |
| (e) | Contribution.
In order to provide for just and equitable contribution in circumstances in which the
indemnification provided for in the foregoing paragraphs of this Section 11 is
applicable in accordance with its terms but for any reason is held to be unavailable
from the Trust and the Manager, or an Agent, the Trust and the Manager, and such Agent
will contribute to the total losses, claims, liabilities, expenses and damages (including
any investigative, legal and other expenses reasonably incurred in connection with, and
any amount paid in settlement of, any action, suit or proceeding or any claim asserted,
but after deducting any contribution received by the Trust and the Manager from persons
other than such Agent, such as persons who control the Trust within the meaning of the
Securities Act, officers of the Trust who signed the Registration Statement and directors
of the Trust, who also may be liable for contribution) to which the Trust and the Manager,
and the Agents may be subject in such proportion as shall be appropriate to reflect the
relative benefits received by the Trust and the Manager on the one hand and the Agents
on the other hand. The relative benefits received by the Trust and the Manager on the
one hand and the Agents on the other hand shall be deemed to be in the same proportion
as the total net proceeds from the sale of the Placement Units (before deducting expenses)
received by the Trust bear to the total compensation received by the Agents (before deducting
expenses) from the sale of Placement Units on behalf of the Trust. If, but only if, the
allocation provided by the foregoing sentence is not permitted by applicable law,
the allocation of contribution shall be made in such proportion as is appropriate to
reflect not only the relative benefits referred to in the foregoing sentence but also
the relative fault of the Trust and the Manager, on the one hand, and the Agents, on
the other hand, with respect to the statements or omission that resulted in such loss,
claim, liability, expense or damage, or action in respect thereof, as well as any other
relevant equitable considerations with respect to such offering. Such relative fault
shall be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Trust and the Manager, or the Agents, the
intent of the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Trust and the Manager, and each
Agent agree that it would not be just and equitable if contributions pursuant to this
Section 11(e) were to be determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss, claim, liability,
expense, or damage, or action in respect thereof, referred to above in this Section 11(e)
shall be deemed to include, for the purpose of this Section 11(e), any legal or other
expenses reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim to the extent consistent with Section 11(c) hereof.
Notwithstanding the foregoing provisions of this Section 11(e), no Agent shall be required
to contribute any amount in excess of the commissions received by it under this Agreement
and no person found guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) will be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this Section
11(e), any person who controls a party to this Agreement within the meaning of the Securities
Act, and any officers, directors, partners, employees or agents of an Agent, will have
the same rights to contribution as that party, and each director of the Trust and each
officer of the Trust who signed the Registration Statement will have the same rights
to contribution as the Trust, subject in each case to the provisions hereof. Any party
entitled to contribution, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made under this
Section 11(e), will notify any such party or parties from whom contribution may be sought,
but the omission to so notify will not relieve that party or parties from whom contribution
may be sought from any other obligation it or they may have under this Section 11(e)
except to the extent that the failure to so notify such other party materially prejudiced
the substantive rights or defenses of the party from whom contribution is sought. Except
for a settlement entered into pursuant to the last sentence of Section 11(c) hereof,
no party will be liable for contribution with respect to any action or claim settled
without its written consent if such consent is required pursuant to Section 11(c) hereof.
The Agents’ respective obligations to contribute pursuant to this Section 11(e)
are several in proportion to the respective number of Placement Units they have sold
hereunder, and not joint. |
| Section 12 | Representations
and Agreements to Survive Delivery |
The
indemnity and contribution agreements contained in Section 11 of this Agreement and all representations and warranties of the
Trust and the Manager herein or in certificates delivered pursuant hereto shall survive, as of their respective dates, regardless
of (i) any investigation made by or on behalf of any Agent, any controlling persons, or the Trust and the Manager (or any of their
respective officers, directors or controlling persons), (ii) delivery and acceptance of the Placement Units and payment therefor
or (iii) any termination of this Agreement.
| (a) | An
Agent may terminate this Agreement with respect to itself, by notice to the Trust and
the Manager, as hereinafter specified at any time (i) if there has been, since the time
of execution of this Agreement or since the date as of which information is given in
the Prospectuses, any change, or any development or event involving a prospective change,
in the condition, financial or otherwise, or in the business, properties, earnings, results
of operations or prospects of the Trust considered as one enterprise, whether or not
arising in the ordinary course of business, which individually or in the aggregate, in
the sole judgment of such Agent is material and adverse and makes it impractical or inadvisable
to market the Placement Units or to enforce contracts for the sale of the Placement Units,
(ii) if there has occurred any material adverse change in the financial markets in the
United States or the international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development involving
a prospective change in national or international political, financial or economic conditions,
in each case the effect of which is such as to make it, in the judgment of such Agent,
impracticable or inadvisable to market the Placement Units or to enforce contracts for
the sale of the Placement Units, (iii) if trading in the Units has been suspended or
limited by the Commission, the Canadian Securities Commissions or either Exchange, or
if trading generally on either Exchange has been suspended or limited, or minimum prices
for trading have been fixed on either Exchange, (iv) if any suspension of trading of
any securities of the Trust on any exchange or in the over-the-counter market shall have
occurred and be continuing, (v) if a major disruption of securities settlements or clearance
services in the United States or Canada shall have occurred and be continuing, or (vi)
if a banking moratorium has been declared by either Canadian or U.S. Federal or New York
authorities. Any such termination shall be without liability of any party to any other
party except that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification
and Contribution), Section 12 (Representations and Agreements to Survive Delivery), Section
18 (Governing Law and Time; Waiver of Jury Trial), Section 19 (Consent to Jurisdiction),
Section 20 (Appointment of Agent for Service) and Section 21 (Judgment Currency) hereof
shall remain in full force and effect notwithstanding such termination. If an Agent elects
to terminate this Agreement as provided in this Section 13(a), such Agent shall
provide the required notice as specified in Section 14 (Notices). For the avoidance of
doubt, the termination by one of the Agents of its rights and obligations under this
Agreement pursuant to this Section 13(a) shall not affect the rights and obligations
of the other Agents under this Agreement. |
| (b) | The
Trust shall have the right, by giving ten (10) days’ notice as hereinafter specified
to terminate this Agreement in its sole discretion at any time after the date of this
Agreement. Any such termination shall be without liability of any party to any other
party except that the provisions of Section 9, Section 11, Section 12, Section 18, Section
19, Section 20 and Section 21 hereof shall remain in full force and effect notwithstanding
such termination. |
| (c) | Each
of the Agents shall have the right, by giving ten (10) days’ notice as hereinafter
specified to terminate this Agreement in its sole discretion at any time after the date
of this Agreement, with respect to such Agent’s rights and obligations under this
Agreement. Any such termination shall be without liability of any party to any other
party except that the provisions of Section 9, Section 11, Section 12, Section 18, Section
19, Section 20 and Section 21 hereof shall remain in full force and effect notwithstanding
such termination. For the avoidance of doubt, the termination by one of the Agents of
its rights and obligations under this Agreement pursuant to this Section 13(c) shall
not affect the rights and obligations of the other Agents under this Agreement. |
| (d) | This
Agreement shall remain in full force and effect unless terminated pursuant to Sections
13(a), 13(b), or 13(c) above or otherwise by mutual agreement of the parties; provided,
however, that any such termination by mutual agreement shall in all cases be deemed
to provide that Section 9, Section 11, Section 12, Section 18, Section 19, Section 20
and Section 21 shall remain in full force and effect. |
| (e) | Any
termination of this Agreement shall be effective on the date specified in such notice
of termination; provided, however, that such termination shall not be effective
until the close of business on the date of receipt of such notice by an Agent or the
Trust, as the case may be. If such termination shall occur prior to the Settlement Date
for any sale of Placement Units, such Placement Units shall settle in accordance with
the provisions of this Agreement. |
All
notices or other communications required or permitted to be given by any party to any other party pursuant to the terms of this
Agreement shall be in writing, unless otherwise specified, and if sent to the Agents, shall be delivered to:
Cantor
Fitzgerald & Co.
110 E 59th Street
New York, NY 10022
Attention: Capital Markets
Facsimile: (212) 307-3730
Cantor
Fitzgerald Canada Corporation
181 University Avenue, Suite 1500
Toronto, ON M5H 3M7
Attention: Elan Shevel
Telephone: (416) 350-5212
and:
Virtu
Americas LLC
1633 Broadway
New York, NY 10019
Attention: Virtu Capital Markets
Virtu
Canada Corp.
222 Bay Street, Suite 1720
Toronto, ON M5K 1B7
Attention: Ryan Quattrini
Telephone: (416) 970-7124
and:
Canaccord
Genuity Corp.
40 Temperance Street, Suite 2100
Toronto, ON M5H 0B4
and:
Canaccord
Genuity LLC
One Post Office Square, Suite 3000
Boston, MA 02109
and:
BMO
Nesbitt Burns Inc.
1 First Canadian Place
100 King Street West
3rd Floor Podium
Toronto, ON M5X 1H3
Attention: Joshua Goldfarb
Telephone: (416) 359-5992
and:
BMO
Capital Markets Corp.
151 West 42nd Street
New York, NY 10036
Attention: Brad Pavelka
Telephone: (347) 491-1880
with
a copy to:
Cantor
Fitzgerald & Co.
110 E 59th Street
New York, NY 10022
Attention: General Counsel
Facsimile: (212) 829-4708
and:
Cooley
LLP
55 Hudson Yards
New York, NY 10001-2157
Attention: Daniel I. Goldberg, Esq.
Facsimile: (212) 479-6275
and:
Borden
Ladner Gervais LLP
Bay Adelaide Centre, East Tower
22 Adelaide St W
Toronto, ON, Canada M5H 4E3
Attention: Ben Keen
Telephone: (416) 367-6254
and
if to the Trust or Manager, shall be delivered to:
Sprott
Physical Platinum and Palladium Trust/Sprott Asset Management LP
Royal Bank Plaza, South Tower
200 Bay Street, Suite 2600
Toronto, Ontario M5J 2J1
Attention: Lara Misner
Telephone: (416) 943-6388
with
a copy to:
Seward
& Kissel LLP
901 K Street N.W., 8th Floor
Washington DC 20001
Attention: Anthony Tu-Sekine
Facsimile: 202-737-5184
and:
Stikeman
Elliott LLP
5300 Commerce Court west
199 Bay Street
Toronto, Ontario M5L 1B9
Attention: J.R. Laffin
Facsimile: (416) 947-0866
Each
party to this Agreement may change such address for notices by sending to the parties to this Agreement written notice of a new
address for such purpose. Each such notice or other communication shall be deemed given (i) when delivered personally or by verifiable
facsimile transmission (with an original to follow) on or before 4:30 p.m., New York City time, on a Business Day or, if such
day is not a Business Day, on the next succeeding Business Day, (ii) on the next Business Day after timely delivery to a nationally-recognized
overnight courier and (iii) on the Business Day actually received if deposited in the U.S. mail (certified or registered mail,
return receipt requested, postage prepaid). For purposes of this Agreement, “Business Day” shall mean any day
on which each Exchange and commercial banks in the City of New York are open for business.
An
electronic communication (“Electronic Notice”) shall be deemed written notice for purposes of this Section
14 if sent to the electronic mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed
received at the time the party sending Electronic Notice receives verification of receipt by the receiving party. Any party receiving
Electronic Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic form (“Non-electronic
Notice”) which shall be sent to the requesting party within 10 days of receipt of the written request for Non-electronic
Notice.
| Section 15 | Successors
and Assigns |
This
Agreement shall inure to the benefit of and be binding upon the Trust and the Manager and the Agents and their respective successors
and the affiliates, controlling persons, officers and directors referred to in Section 11 hereof. References to any of the parties
contained in this Agreement shall be deemed to include the successors and permitted assigns of such party. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted
assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement. Neither party may assign its rights or obligations under this Agreement without the prior written consent
of the other party; provided, however, that each Agent may assign its rights and obligations hereunder to an affiliate
thereof without obtaining the Trust’s or Manager’s consent.
| Section 16 | Adjustments
for Splits |
The
parties acknowledge and agree that all Unit-related numbers contained in this Agreement shall be adjusted to take into account
any Unit split, Unit dividend or similar event effected with respect to the Placement Units.
| Section 17 | Entire
Agreement; Amendment; Severability; Waiver |
This
Agreement (including all schedules and exhibits attached hereto and Placement Notices issued pursuant hereto) constitutes the
entire agreement and supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among
the parties hereto with regard to the subject matter hereof other than the side letter signed as of the date hereof. Neither this
Agreement nor any term hereof may be amended except pursuant to a written instrument executed by the Manager, on behalf of the
Trust, the Manager and each of the Agents. In the event that any one or more of the provisions contained herein, or the application
thereof in any circumstance, is held invalid, illegal or unenforceable as written by a court of competent jurisdiction, then such
provision shall be given full force and effect to the fullest possible extent that it is valid, legal and enforceable, and the
remainder of the terms and provisions herein shall be construed as if such invalid, illegal or unenforceable term or provision
was not contained herein, but only to the extent that giving effect to such provision and the remainder of the terms and provisions
hereof shall be in accordance with the intent of the parties as reflected in this Agreement. No implied waiver by a party shall
arise in the absence of a waiver in writing signed by such party. No failure or delay in exercising any right, power, or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any right, power, or privilege hereunder.
| Section 18 | Governing Law and Time; Waiver of Jury
Trial |
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES
OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
| Section 19 | Consent to Jurisdiction |
EACH
PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK,
BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED HEREBY,
AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY
SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT
THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND
CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL,
RETURN RECEIPT REQUESTED) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE
SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT
IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.
| Section 20 | Appointment
of Agent for Service |
The
Trust and the Manager hereby irrevocably appoint Anthony Tu-Sekine of Seward & Kissel LLP, with offices at 901 K Street N.W.,
8th Floor, Washington DC 20001 as its agent for service of process in any suit, action or proceeding described in the preceding
paragraph and agrees that service of process in any such suit, action or proceeding may be made upon it at the office of such
agent. The Trust and the Manager waive, to the fullest extent permitted by law, any other requirements of or objections to personal
jurisdiction with respect thereto. The Trust and the Manager represent and warrant that such agent has agreed to act as the agent
for service of process for the Trust and the Manager, and the Trust and the Manager agrees to take any and all action, including
the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect.
| Section 21 | Judgment
Currency |
The
Trust agrees to indemnify the Agents against any loss incurred by the Agents as a result of any judgment or order being given
or made for any amount due hereunder and such judgment or order being expressed and paid in a currency (the “judgment
currency”) other than Canadian dollars and as a result of any variation as between (i) the rate of exchange at which
the Canadian dollar amount is converted into the judgment currency for the purpose of such judgment or order, and (ii) the rate
of exchange at which such indemnified person is able to purchase Canadian dollars with the amount of the judgment currency actually
received by the indemnified person. The foregoing indemnity shall constitute a separate and independent obligation of the Trust
and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange”
shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, the relevant
currency.
This
Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile or
by electronic delivery of a portable document format (PDF) file (including any electronic signature covered by the U.S. federal
ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g.,
www.docusign.com).
| Section 23 | Effect
of Headings |
The
section and exhibit headings herein are for convenience only and shall not affect the construction hereof.
| Section 24 | Permitted
Free Writing Prospectuses |
The
Trust represents, warrants and agrees that, unless it obtains the prior consent of each of the Agents, which consent shall not
be unreasonably withheld, delayed or conditioned, and each of the Agents represent, warrant and agree that, unless they obtains
the prior consent of the Trust and the other Agents, they have not made and will not make any offer relating to the Placement
Units that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,”
as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Agents
or by the Trust, as the case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus.” The
Trust represents and warrants that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer
free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433
applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and
record keeping. For the purposes of clarity, the parties hereto agree that all free writing prospectuses, if any, listed in Exhibit 1
hereto are Permitted Free Writing Prospectuses.
| Section 25 | Absence
of Fiduciary Relationship |
The
Trust and the Manager acknowledge and agree that:
| (a) | each
Agent is acting solely as agent in connection with the public offering of the Placement
Units and in connection with each transaction contemplated by this Agreement and the
process leading to such transactions, and no fiduciary or advisory relationship between
the Trust and the Manager or any of its respective affiliates, shareholders (or other
equity holders), creditors or employees or any other party, on the one hand, and the
Agents, on the other hand, has been or will be created in respect of any of the transactions
contemplated by this Agreement, irrespective of whether or not such Agent has advised
or is advising the Trust or the Manager on other matters, and no Agent has an obligation
to the Trust and the Manager with respect to the transactions contemplated by this Agreement
except the obligations expressly set forth in this Agreement; |
| (b) | it
is capable of evaluating and understanding, and understands and accepts, the terms, risks
and conditions of the transactions contemplated by this Agreement; |
| (c) | neither
the Agents nor their affiliates have provided any legal, accounting, regulatory
or tax advice with respect to the transactions contemplated by this Agreement and it
has consulted its own legal, accounting, regulatory and tax advisors to the extent it
has deemed appropriate; |
| (d) | it
is aware that each Agent and its affiliates are engaged in a broad range of transactions
which may involve interests that differ from those of the Trust and the Manager and the
Agents and their affiliates have no obligation to disclose such interests and transactions
to the Trust and the Manager by virtue of any fiduciary, advisory or agency relationship
or otherwise; and |
| (e) | it
waives, to the fullest extent permitted by law, any claims it may have against an Agent
or its affiliates for breach of fiduciary duty or alleged breach of fiduciary duty in
connection with the sale of Placement Units under this Agreement and agrees that such
Agent and its affiliates shall not have any liability (whether direct or indirect, in
contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any
person asserting a fiduciary duty claim on its behalf or in right of it or the Trust
and the Manager, employees or creditors of Trust, other than in respect of the Agents’
obligations under this Agreement and to keep information provided by the Trust
and the Manager to the Agents and the Agents' counsel confidential to the extent not
otherwise publicly-available. Notwithstanding the foregoing or anything herein to the
contrary, the Agents or its representatives, may, if requested by any governmental, regulatory
or self-regulatory agency or authority having jurisdiction over such entity, disclose
such confidential information without notice to or consent from the Trust or the Manager. |
As
used in this Agreement, the following terms have the respective meanings set forth below:
“Applicable
Time” means (i) each Representation Date, (ii) the time of each sale of any Placement Units pursuant to this Agreement,
and (iii) each Settlement Date.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433,
relating to the Placement Units that (i) is required to be filed with the Commission by the Trust, (ii) is a “road show”
that is a “written communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be filed
with the Commission, or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Placement
Units or of the offering that does not reflect the final terms, in each case in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in the Trust’s records pursuant to Rule 433(g) under the
Securities Act Rules and Regulations.
All
references in this Agreement to financial statements and schedules and other information that is “contained,”
“included” or “stated” in the Registration Statement or the Prospectuses (and all other
references of like import) shall be deemed to mean and include all such financial statements and schedules and other information
that is incorporated by reference in the Registration Statement or the Prospectuses, as the case may be.
All
references in this Agreement to the Registration Statement, the Prospectus or any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Commission pursuant to EDGAR; all references in this Agreement to any Issuer
Free Writing Prospectus (other than any Issuer Free Writing Prospectuses that, pursuant to Rule 433, are not required to be filed
with the Commission) shall be deemed to include the copy thereof filed with the Commission pursuant to EDGAR; and all references
in this Agreement to “supplements” to the Prospectuses shall include, without limitation, any supplements,
“wrappers” or similar materials prepared in connection with any offering, sale or private placement of any
Placement Units by the Agents outside of the United States.
[Signature
Page Follows]
If
the foregoing correctly sets forth the understanding among the Trust, the Manager and the Agents, please so indicate in the space
provided below for that purpose, whereupon this letter shall constitute a binding agreement among the Trust, the Manager and the
Agents.
| |
Very
truly yours,
SPROTT
PHYSICAL PLATINUM AND PALLADIUM TRUST
By
its manager, Sprott Asset Management LP
By
its general partner, Sprott Asset Management GP Inc.
|
| |
By: |
/s/
John Ciampaglia |
| |
|
Name: |
John Ciampaglia |
| |
|
Title: |
Chief Executive Officer |
| |
SPROTT
ASSET MANAGEMENT LP
By
its general partner, Sprott Asset Management GP Inc.
|
| |
By: |
/s/
John Ciampaglia |
| |
|
Name: |
John Ciampaglia |
| |
|
Title: |
Chief Executive Officer |
| |
ACCEPTED
as of the date first-above written: |
| |
CANTOR
FITZGERALD & CO. |
| |
By: |
/s/ Sameer Vasudev |
| |
|
Name: |
Sameer Vasudev |
| |
|
Title: |
Managing Director |
| |
CANTOR FITZGERALD CANADA CORPORATION |
| |
By: |
/s/
Elan Shevel |
| |
|
Name: |
Elan Shevel |
| |
|
Title: |
Chief Compliance Officer |
| |
VIRTU
AMERICAS LLC |
| |
By: |
/s/
Joshua R. Feldman |
| |
|
Name: |
Joshua R. Feldman |
| |
|
Title: |
Managing Director |
| |
VIRTU
CANADA CORP. |
| |
By: |
/s/
Ryan Quattrini |
| |
|
Name: |
Ryan Quattrini |
| |
|
Title: |
Chief Financial
Officer |
| |
CANACCORD
GENUITY CORP. |
| |
By: |
/s/
David Sadowski |
| |
|
Name: |
David Sadowski |
| |
|
Title: |
Managing Director, Head of Canadian Metals & Mining Investment Banking |
| |
CANACCORD
GENUITY LLC |
| |
By: |
/s/ Jennifer Pardi |
| |
|
Name: |
Jennifer Pardi |
| |
|
Title: |
Managing Director |
| |
BMO
NESBITT BURNS INC. |
| |
By: |
/s/
Joshua Goldfarb |
| |
|
Name: |
Joshua Goldfarb |
| |
|
Title: |
Managing Director |
| |
BMO
CAPITAL MARKETS CORP. |
| |
By: |
/s/ Brad Pavelka |
| |
|
Name: |
Brad Pavelka |
| |
|
Title: |
Managing Director |
SCHEDULE
“A”
________________________________
FORM
OF PLACEMENT NOTICE
_________________________________
| From: |
Sprott
Physical Platinum and Palladium Trust, by its manager, Sprott Asset Management LP, by its general partner, Sprott Asset Management
GP Inc. |
| To: |
[●]
(the “Designated Agent”)
Attention:
[●]
|
| Subject:
Placement Notice |
| Date: |
[●],
202[●] |
Ladies
and Gentlemen:
Pursuant
to the terms and subject to the conditions contained in the Amended and Restated Sales Agreement among Sprott Physical Platinum and
Palladium Trust, a trust formed and organized under the laws of the Province of Ontario (the “Trust”) and
managed by Sprott Asset Management LP, a limited partnership organized under the laws of the Province of Ontario (the
“Manager”), Cantor Fitzgerald & Co. (“Cantor”), Cantor Fitzgerald Canada
Corporation (“Cantor Canada”), Virtu Americas LLC (“Virtu”), Virtu Canada Corp.
(“Virtu Canada”), Canaccord Genuity Corp. (“Canaccord Canada”), Canaccord
Genuity LLC (“Canaccord”), BMO Nesbitt Burns Inc. (“BMO Canada”) and BMO Capital
Markets Corp. (“BMO”, and together with Cantor, Virtu, Virtu Canada, Canaccord Canada, Canaccord and BMO
Canada, the “Agents”), dated December [●], 2024, the Manager, on behalf of
the Trust, hereby requests that [Cantor/Cantor Canada/Virtu/Virtu Canada/Canaccord Canada/Canaccord/BMO Canada/BMO/Agents] sell up
to [●] of the Trust’s units at a minimum market price of [US/CAD]$[●]
per unit, during the time period beginning [month, day, time] and ending [month, day, time]. Sales by Cantor Canada, Virtu Canada,
Canaccord Canada and BMO Canada shall be conducted only on the TSX or on any other “marketplace” (as such term is
defined in National Instrument 21-101 – Marketplace Operation) in Canada, and sales by Cantor, Virtu, Canaccord and BMO
shall be conducted only on the NYSE or to or through a market maker in the United States.
SCHEDULE
“B”
_________________________________
COMPENSATION
_________________________________
The
Trust shall pay to the Designated Agent in cash, upon each sale of Placement Units pursuant to this Agreement, an amount equal
to up to 3.0% of the aggregate gross proceeds from each sale of Placement Units.
SCHEDULE
“C”
_________________________________
NOTICE PARTIES
_________________________________
The
Manager
Arthur
Einav (aeinav@sprott.com)
John
Ciampaglia (jciampaglia@sprott.com)
Lara
Misner (lmisner@sprott.com)
Cantor
Fitzgerald & Co. and Cantor Fitzgerald Canada Corporation
Sameer
Vasudev (svasudev@cantor.com)
Graham
Moylan (gmoylan@cantor.com)
Matthew
Crawford (matthew.crawford@cantor.com)
Jackson
Hughes (jackson.hughes@cantor.com)
With
copies to:
CFCEO@cantor.com
Virtu
Capital Markets
Jeff
Lumby (jlumby@virtu.com)
Joshua
Feldman (jfeldman@virtu.com)
Conor
Lumby (clumby@virtu.com)
With
copies to:
ATM@virtu.com
ATMCanada@virtu.com
Canaccord
Genuity Corp. And Canaccord Genuity LLC
David
Sadowski (dsadowski@cgf.com)
Ron
Sedran (rsedran@cgf.com)
Michael
Klizs (mklizs@cgf.com)
Brad
Delaney (bdelaney@cgf.com)
BMO
Nesbitt Burns Inc.
Joshua
Goldfarb (Joshua.goldfarb@bmo.com)
Jesse
Pearlstein (jesse.pearlstein@bmo.com)
Jenny
Min (jenny.min@bmo.com)
BMO
Capital Markets Corp.
Brad
Pavelka (Brad.Pavelka@bmo.com)
Joseph Erbe (Joseph.Erbe@bmo.com)
Eli Rossman (Eli.Rossman@bmo.com)
EXHIBIT
1
Permitted Free Writing Prospectus
None.
Sprott Physical Platinum... (AMEX:SPPP)
과거 데이터 주식 차트
부터 11월(11) 2024 으로 12월(12) 2024
Sprott Physical Platinum... (AMEX:SPPP)
과거 데이터 주식 차트
부터 12월(12) 2023 으로 12월(12) 2024
