Covenants of the REIT. 3.1 The REIT covenants and agrees with the Underwriters that: 3.1.1 the Units will be duly and validly created, authorized and issued on the payment therefor and such Units will have attributes corresponding in all material respects to the descriptions thereof in this Agreement and in the Preliminary Prospectus, the Prospectus and any Supplementary Material; 3.1.2 the REIT shall have prepared and filed the Preliminary Prospectus in both the English and French languages in accordance with the Passport System with the Ontario Securities Commission in its capacity as the principal regulator under the Passport System and will use commercially reasonable efforts to obtain a receipt for the Preliminary Prospectus from the principal regulator on behalf of the Securities Commissions in each of the Qualifying Jurisdictions not later than 5:00 p.m. (Toronto time) on May 6, 2014; 3.1.3 the REIT shall prepare and file the Prospectus in each of the Qualifying Jurisdictions with Securities Commissions under the Securities Laws, and will use commercially reasonable efforts to obtain the Final Receipt not later than 5:00 p.m. (Toronto time) on May 13, 2014, or such later time as may be agreed upon by the REIT and the Lead Underwriters, on behalf of the Underwriters, acting reasonably, and will have taken all other commercially reasonable steps and proceedings that may be necessary in order to qualify the Units for distribution in each of the Qualifying Jurisdictions by the Underwriters and other persons who are registered in a category permitting them to distribute the Units under the Securities Laws and who comply with Securities Laws; 3.1.4 until the completion of the distribution of the Units, it shall allow and assist the Underwriters to participate fully in the preparation of the Prospectus and any Supplementary Material and shall allow the Underwriters to conduct all "due diligence" investigations which the Underwriters may reasonably require to fulfill the Underwriters' obligations as underwriters and to enable the Underwriters responsibly to execute any certificate required to be executed by the Underwriters in any such documentation; 3.1.1 it shall cause the Marketing Materials, if any, as approved by the REIT and the Lead Underwriters, to be filed with the Securities Commissions, in the manner contemplated by applicable Securities Laws, not later than the day on which such Marketing Materials are first provided to a potential investor in connection with the Offering. Any comparables (as defined in NI 41-101) and all disclosure relating to such comparables shall be redacted from the Marketing Materials so filed; 3.1.2 it will comply with section 57 of the Securities Act (Ontario) and with the comparable provisions of the other applicable Securities Laws and during the period from the date of signing the Preliminary Prospectus to the date of completion of distribution of the Units, will promptly notify the Underwriters in writing of the full particulars of: (i) any material change, actual, anticipated or, to the Knowledge of the REIT, threatened, in the assets, business, operations or financial condition of the REIT (on a consolidated basis); (ii) any material fact which has arisen or has been discovered and would have been required to have been stated in any Offering Document had that fact arisen or been discovered on, or prior to, the date of any of the Offering Documents; or (iii) any change in any material fact contained or referred to in any of the Offering Documents, whether any event or state of facts has occurred after the date of this Agreement, which, in any case, is or may be of such a nature as to render any of the Offering Documents untrue, false or misleading in any material respect or result in a Misrepresentation in any of the Offering Documents. The REIT shall, to the satisfaction of the Underwriters and their counsel, acting reasonably, promptly comply with all applicable filing and other requirements under the Securities Laws in the Qualifying Jurisdictions (and any other applicable securities laws) as a result of such change. The REIT shall, in good faith, first discuss with the Lead Underwriters any change in circumstances (actual, proposed or, to the REIT's Knowledge, threatened) which is of such a nature that there is reasonable doubt whether notice need be given to the Underwriters pursuant to this paragraph 3.1.4 and, in any event, prior to making any filing referred to in this paragraph 3.1.
Appears in 1 contract
Samples: Underwriting Agreement
Covenants of the REIT. 3.1 The REIT covenants and agrees with the Underwriters that:
3.1.1 the Offered Units will be duly and validly created, authorized and issued on the payment therefor and such Offered Units will have attributes corresponding in all material respects to the descriptions thereof in this Agreement and in the Preliminary Prospectus, the Prospectus and any Supplementary MaterialAmendment;
3.1.2 it shall fulfill to the satisfaction of the Underwriters all legal requirements to be fulfilled by it to enable the Offered Units to be offered for sale and sold (i) to the public in Canada by or through the Selling Firms who comply with all applicable Securities Laws in each of the Qualifying Jurisdictions and (ii) in the United States in transactions exempt from the registration requirements of the U.S. Securities Act and applicable state securities laws to Qualified Institutional Buyers in accordance with Rule 144A; the REIT will use commercially reasonable efforts to fulfill all legal requirements to permit the distribution of the Offered Units in each Qualifying Jurisdiction as soon as possible but in any event not later than the Qualification Deadline; such fulfillment shall have prepared include, without limiting the generality of the foregoing, compliance with all applicable Securities Laws including, without limitation, compliance with all requirements with respect to the preparation and filed filing of the Preliminary Prospectus and the Prospectus in both the English and French languages in accordance form and substance satisfactory to the Underwriters in each of the Qualifying Jurisdictions with the Passport System Securities Commissions under the Securities Laws, the preparation and filing of the Prospectus in such Qualifying Jurisdictions with such changes from the Preliminary Prospectus as the REIT and the Underwriters may approve, such approval to be evidenced by the signing of the Prospectus by the REIT and the Underwriters, and the obtaining of an NP 11-202 receipt therefor from the Ontario Securities Commission as soon as possible after the filing but in its capacity any event on or before the Qualification Deadline, and the delivering of a copy thereof to the Underwriters and their counsel; and, for greater certainty, the REIT will, as soon as possible following the execution of this Agreement (or such other time and/or date as the principal regulator REIT and the Joint Bookrunners, on behalf of the Underwriters, may in writing agree) prepare and file the Preliminary Prospectus in form and substance satisfactory to the Underwriters in each of the Qualifying Jurisdictions with the Securities Commissions under the Passport System Securities Laws, and will use commercially its reasonable efforts to obtain a an NP 11-202 receipt for the Preliminary Prospectus from the principal regulator on behalf of the Securities Commissions in each of the Qualifying Jurisdictions therefor on the date of such filing, and in any event shall obtain such receipt no later than the next Business Day after the date of such filing, and deliver a copy thereof to the Underwriters and their counsel; and, for greater certainty, the REIT will use its reasonable commercial efforts to promptly satisfy or resolve all comments of the Securities Commissions regarding the Preliminary Prospectus and will, as soon as possible following the satisfaction or resolution of such comments, and, in any event, not later than 5:00 p.m. the Qualification Deadline (Toronto time) on May 6, 2014;
3.1.3 or such other time and/or date as the REIT shall and the Joint Bookrunners, on behalf of the Underwriters, may in writing agree) prepare and file the Prospectus in each of the Qualifying Jurisdictions accordance with Securities Commissions under the Securities LawsNP 11-202;
3.1.3 it will provide its full cooperation, and will use commercially reasonable efforts cause its management to obtain provide their full cooperation, in marketing the Final Receipt not later than 5:00 p.m. (Toronto time) on May 13Offering as the Underwriters may reasonably request, 2014including in connection with the preparation of any marketing materials for provision to any potential investor in the Offered Units that the Underwriters reasonably request, or and any template version of any such later time as may marketing materials shall be agreed upon by the REIT and the Lead UnderwritersJoint Bookrunners, on behalf of each acting reasonably (which agreement shall constitute the Underwriters' authority to use such Marketing Documents, acting reasonablyincluding any limited-use versions thereof, in connection with the Offering), and will have taken all other commercially reasonable steps and proceedings that may be necessary in order to qualify file such template version with the Units for distribution in each of the Qualifying Jurisdictions Securities Commissions as soon as reasonably practical after it has been so agreed upon by the Underwriters REIT and other persons who are registered the Joint Bookrunners and, in a category permitting them any event, not later than the day on which such marketing materials have or will be first provided to distribute any potential investor in the Units under Offering. Any comparables (and all disclosure relating to such comparables) shall be redacted (to the fullest extent permitted by NI 44-101) from the template version of any marketing materials filed with the Securities Laws Commissions pursuant to this paragraph 3.1.3 and, where applicable, a complete template version of such marketing materials (containing the redacted comparables and who comply related disclosure) shall be delivered to the applicable Securities Commissions by the REIT in compliance with Securities LawsNI 44-101;
3.1.4 until the completion of the distribution of the Offered Units, it shall allow and assist the Underwriters to participate fully in the preparation of the Prospectus Preliminary Prospectus, the Prospectus, any Amendment, the Preliminary U.S. Private Placement Memorandum and any Supplementary Material the U.S. Private Placement Memorandum and shall allow the Underwriters to conduct all "due diligence" investigations which the Underwriters may reasonably require to fulfill the Underwriters' obligations as underwriters underwriters, to enable the Underwriters to avail themselves of a defence to any claim for misrepresentation in the Preliminary Prospectus, the Prospectus or any Amendment and to enable the Underwriters responsibly to execute any certificate required to be executed by the Underwriters in any such documentation. It shall be a condition precedent to the Underwriters' execution of any certificate in the Preliminary Prospectus, the Prospectus or any Amendment that the Underwriters be satisfied, acting reasonably, as to the form and content of the document and the execution thereby of such certificate shall be conclusive evidence of such satisfaction;
3.1.1 it shall cause the Marketing Materials, if any, as approved by the REIT and the Lead Underwriters, to be filed with the Securities Commissions, in the manner contemplated by applicable Securities Laws, not later than the day on which such Marketing Materials are first provided to a potential investor in connection with the Offering. Any comparables (as defined in NI 41-101) and all disclosure relating to such comparables shall be redacted from the Marketing Materials so filed;
3.1.2 3.1.5 it will comply with section 57 of the Securities Act (Ontario) and with the other comparable provisions of the other applicable Securities Laws and during the period from the date of signing the Preliminary Prospectus to the date of completion of distribution of the Offered Units, will promptly notify the Underwriters in writing of the full particulars of: (i) of any material change, actual, anticipated oranticipated, to the Knowledge of the REITcontemplated, proposed or threatened, in the business, financial condition, assets, business, liabilities (contingent or otherwise) or results of operations or financial condition of the REIT (on a consolidated basis); (ii) any material fact which has arisen or has been discovered and would have been required to have been stated in any Offering Document had that fact arisen or been discovered on, or prior to, the date of any of the Offering Documents; or (iii) any change in any material fact contained or referred to in the Preliminary Prospectus, the Prospectus or in any Amendment or in the Preliminary U.S. Private Placement Memorandum or the U.S. Private Placement Memorandum, and of the Offering Documentsexistence of any material fact which is, whether any event or state of facts has occurred after the date of this Agreement, which, in any case, is or may be be, of such a nature as to render the Preliminary Prospectus, the Prospectus or any of Amendment or the Offering Documents Preliminary U.S. Private Placement Memorandum or the U.S. Private Placement Memorandum, untrue, false or misleading in any a material respect or result in a Misrepresentation in any of the Offering Documentsmisrepresentation. The REIT It shall, to the satisfaction of the Underwriters and their counsel, acting reasonably, promptly comply with all applicable filing and other requirements under the Securities Laws in the Qualifying Jurisdictions (and any other applicable securities lawsU.S. Securities Laws) as a result of such change. The REIT It shall, in good faith, first discuss with the Lead Underwriters Joint Bookrunners any change in circumstances (actual, proposed or, to within the REIT's Knowledge, threatened) which is of such a nature that there is reasonable doubt whether notice need be given to the Underwriters pursuant to this paragraph 3.1.4 3.1.5 and, in any event, prior to making any filing referred to in this paragraph 3.13.1.5. For greater certainty but not so as to limit the generality of the foregoing, it is understood and agreed that, during the period from the date of signing the Preliminary Prospectus to the date of completion of the distribution of the Offered Units, if the Joint Bookrunners reasonably determine, after consultation with the REIT, that a material change or change in a material fact has occurred which makes untrue or misleading any statement of a material fact contained in the Preliminary Prospectus, the Prospectus or in any Amendment or in the Preliminary U.S. Private Placement Memorandum or the U.S. Private Placement Memorandum, or which may result in a misrepresentation, the REIT will:
3.1.5.1 prepare and file promptly any Amendment which in its opinion, acting reasonably, may be necessary or advisable, after consultation with the Underwriters; and
3.1.5.2 contemporaneously with filing the Amendment under the applicable laws of the Qualifying Jurisdictions, deliver to the Underwriters:
3.1.5.2.1 a copy of the Amendment, signed by the REIT as required by the Securities Laws;
3.1.5.2.2 a copy of all documents relating to the proposed distribution of the Offered Units by the REIT and filed with the Amendment under the applicable Securities Laws; and
3.1.5.2.3 such other documents of the REIT as the Underwriters shall reasonably require;
3.1.6 it will ensure that, when issued, the Offered Units issuable hereunder will be conditionally approved for listing on the Stock Exchange, subject only to compliance with Standard Listing Conditions.
3.2 During the period commencing on the date hereof and ending on the date the Joint Bookrunners, on behalf of the Underwriters, notify the REIT of the completion of the distribution of the Offered Units, the REIT will promptly inform the Underwriters of the full particulars of:
3.2.1 any request of any Securities Commission for any amendment to the Preliminary Prospectus, the Prospectus or any Amendment or for any additional information in connection with the Offering;
3.2.2 the issuance by any Securities Commission, the Stock Exchange or any other Governmental Authority (including the SEC) of any order to cease or suspend trading of any securities of the REIT or of the institution or threat of institution of any proceedings for that purpose; and
3.2.3 any notice or other correspondence received by any of them from any Governmental Authority (including the SEC) requesting information, a meeting or a hearing or commencing or threatening any investigation into any of them or their business that could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise) or results of operations of the REIT (on a consolidated basis) or the completion of the Offering.
3.3 The REIT will, and will cause each of the REIT Entities to, use reasonable commercial efforts to promptly do, make, execute, deliver or cause to be done, made, executed or delivered, all such acts, documents and things as the Underwriters may reasonably require from time to time for the purpose of giving effect to this Agreement.
3.4 The REIT will apply the net proceeds from the issue and sale of the Offered Units substantially in accordance with the disclosure set forth under the heading "Use of Proceeds" in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement
Covenants of the REIT. 3.1 The REIT covenants and agrees with the Underwriters that:
3.1.1 (a) the Offered Units will be duly and validly created, authorized and issued on the payment therefor and such Offered Units will have attributes corresponding in all material respects to the descriptions thereof in this Agreement and in the Preliminary Prospectus, the Prospectus and any Supplementary MaterialAmendment;
3.1.2 (b) it shall fulfill to the REIT satisfaction of the Underwriters all legal requirements to be fulfilled by it to enable the Offered Units to be offered for sale and sold to the public in Canada by or through the Selling Firms who comply with all applicable Securities Laws in each of the Qualifying Jurisdictions; such fulfillment shall have prepared include, without limiting the generality of the foregoing, compliance with all applicable Securities Laws including, without limitation, the preparation and filed filing of the Preliminary Prospectus in both the English and French languages in accordance form and substance satisfactory to the Underwriters in each of the Qualifying Jurisdictions, the preparation and filing of the Prospectus in both the English and French languages in such Qualifying Jurisdictions with such changes from the Preliminary Prospectus as the REIT and the Underwriters may approve, such approval to be evidenced by the signing of the Prospectus by the REIT and the Underwriters, and the obtaining of an NP 11-202 receipt therefor from the British Columbia Securities Commission as soon as possible after the filing but in any event on or before the Qualification Deadline, and the delivering of a copy thereof to the Underwriters and their counsel; and for greater certainty, the REIT will, as soon as possible following the execution of this Agreement, and, in any event, not later than 2:00 p.m. (Vancouver time) on October 10, 2014 (or such other time and/or date as the REIT and the Co-Lead Underwriters, on behalf of the Underwriters, may in writing agree) prepare and file the Preliminary Prospectus in form and substance satisfactory to the Underwriters in each of the Qualifying Jurisdictions with the Passport System with the Ontario Securities Commission in its capacity as the principal regulator Commissions under the Passport System Securities Laws and will use commercially reasonable efforts to obtain a an NP 11-202 receipt for the Preliminary Prospectus from the principal regulator on behalf of the Securities Commissions in each of the Qualifying Jurisdictions not later than 5:00 p.m. (Toronto time) therefor on May 6the date of such filing and deliver a copy thereof to the Underwriters and their counsel; and for greater certainty, 2014;
3.1.3 the REIT shall prepare and file the Prospectus in each of the Qualifying Jurisdictions with Securities Commissions under the Securities Laws, and will use its commercially reasonable efforts to obtain promptly satisfy or resolve all comments of the Final Receipt Securities Commissions regarding the Preliminary Prospectus and will, as soon as possible following the satisfaction or resolution of such comments, and, in any event, not later than 5:00 p.m. the Qualification Deadline (Toronto time) on May 13, 2014, or such later other time and/or date as may be agreed upon by the REIT and the Co-Lead Underwriters, on behalf of the Underwriters, acting reasonably, may in writing agree) prepare and will have taken all other commercially reasonable steps and proceedings that may be necessary file the Prospectus in order to qualify the Units for distribution in each of the Qualifying Jurisdictions by the Underwriters and other persons who are registered in a category permitting them to distribute the Units under the Securities Laws and who comply accordance with Securities LawsNP 11-202;
3.1.4 (c) until the completion of the distribution of the Offered Units, it shall allow and assist the Underwriters to participate fully in the preparation of the Preliminary Prospectus, the Prospectus and any Supplementary Material Amendment and shall allow the Underwriters to conduct all "“due diligence" ” investigations which the Underwriters may reasonably require to fulfill the Underwriters' ’ obligations as underwriters underwriters, to enable the Underwriters to avail themselves of a defence to any claim for misrepresentation in the Preliminary Prospectus, the Prospectus or any Amendment and to enable the Underwriters responsibly to execute any certificate required to be executed by the Underwriters in any such documentation. It shall be a condition precedent to the Underwriters’ execution of any certificate in the Preliminary Prospectus, the Prospectus or any Amendment that the Underwriters be satisfied, acting reasonably, as to the form and content of the document and the execution thereby of such certificate shall be conclusive evidence of such satisfaction;
3.1.1 it shall cause the Marketing Materials, if any, as approved by the REIT and the Lead Underwriters, to be filed with the Securities Commissions, in the manner contemplated by applicable Securities Laws, not later than the day on which such Marketing Materials are first provided to a potential investor in connection with the Offering. Any comparables (as defined in NI 41-101d) and all disclosure relating to such comparables shall be redacted from the Marketing Materials so filed;
3.1.2 it will comply with section 57 of the Securities Act (Ontario) and with the other comparable provisions of the other applicable Securities Laws and during the period from the date of signing the Preliminary Prospectus to the date of completion of distribution of the Offered Units, will promptly notify the Underwriters in writing of the full particulars of: (i) of any material change, actual, anticipated or, to the Knowledge of the REIT, or threatened, in the business, financial condition, assets, businessliabilities (contingent or otherwise), results of operations or financial condition prospects of the REIT (on a consolidated basis); (ii) any material fact which has arisen or has been discovered and would have been required to have been stated in any Offering Document had that fact arisen or been discovered on, or prior to, the date of any of the Offering Documents; or (iii) any change in any material fact contained or referred to in the Preliminary Prospectus, the Prospectus or in any Amendment, and of the Offering Documentsexistence of any material fact which is, whether any event or state of facts has occurred after the date of this Agreement, which, in any case, is or may be be, of such a nature as to render the Preliminary Prospectus, the Prospectus or any of the Offering Documents Amendment, untrue, false or misleading in any a material respect or result in a Misrepresentation in any of the Offering Documentsmisrepresentation. The REIT It shall, to the satisfaction of the Underwriters and their counsel, acting reasonably, promptly comply with all applicable filing and other requirements under the Securities Laws in the Qualifying Jurisdictions (and any other applicable securities laws) as a result of such change. The REIT It shall, in good faith, first discuss with the Co-Lead Underwriters any change in circumstances (actual, proposed or, to within the REIT's ’s Knowledge, threatened) which is of such a nature that there is reasonable doubt whether notice need be given to the Underwriters pursuant to this paragraph 3.1.4 3.1(d) and, in any event, prior to making any filing referred to in this paragraph 3.13.1(d). For greater certainty but not so as to limit the generality of the foregoing, it is understood and agreed that, during the period from the date of signing the Preliminary Prospectus to the date of completion of the distribution of the Offered Units, if the Underwriters reasonably determine, after consultation with the REIT, that a material change or change in a material fact has occurred which makes untrue or misleading any statement of a material fact contained in the Preliminary Prospectus, the Prospectus or in any Amendment, or which may result in a misrepresentation, the REIT will:
(i) prepare and file promptly any Amendment which in its opinion, acting reasonably, may be necessary or advisable, after consultation with the Underwriters; and
(ii) contemporaneously with filing the Amendment under the Laws of the Qualifying Jurisdictions, deliver to the Underwriters:
(A) a copy of the Amendment, signed as required by the Securities Laws;
(B) a copy of all documents relating to the proposed distribution of the Offered Units and file them with the Amendment under the applicable Securities Laws; and
(C) such other documents as the Underwriters shall reasonably require; and
(e) it will ensure that, when issued, the Offered Units issuable hereunder will be conditionally approved for listing on the Exchange, subject only to compliance with the Standard Listing Conditions.
3.2 During the period commencing on the date hereof and ending on the date the Underwriters notify the REIT of the completion of the distribution of the Offered Units, the REIT will promptly inform the Underwriters of the full particulars of:
(a) any request of any Securities Commission for any amendment to the Preliminary Prospectus, the Prospectus or any Amendment or for any additional information in connection with the Offering;
(b) the issuance by any Securities Commission, the Exchange or any other Governmental Authority of any order to cease or suspend trading of any securities of the REIT or of the institution or threat of institution of any proceedings for that purpose; or
(c) any notice or other correspondence received by any of them from any Governmental Authority requesting information, a meeting or a hearing or commencing or threatening any investigation into any of them or their business that could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT (on a consolidated basis) or the completion of the Offering.
3.3 The REIT agrees that it will not agree, and will cause the other REIT Entities not to agree, to
(A) any change to the aggregate purchase price for the Oklahoma Properties as set forth in the Oklahoma Properties Purchase and Sale Agreement and the Texas Properties as set forth in the Texas Properties Purchase and Sale Agreement, (B) any material changes to the assets to be acquired or liabilities to be assumed by the REIT, directly or indirectly, pursuant to the Oklahoma Properties Purchase and Sale Agreement and the Texas Properties Purchase and Sale Agreement, (C) any changes to, or waivers of, any material condition (in the determination of the REIT, acting reasonably) to the closing of the Acquisitions as set forth in the Oklahoma Properties Purchase and Sale Agreement and the Texas Properties Purchase and Sale Agreement or (D) any material changes to the terms of the Acquisitions to the extent such terms are described in the Prospectuses, in each case, without the consent of the Co-Lead Underwriters, on behalf of the Underwriters, which consent may not be unreasonably withheld or delayed.
3.4 The REIT will use commercially reasonable efforts to promptly do, make, execute, deliver or cause to be done, made, executed or delivered, all such acts, documents and things as the Underwriters may reasonably require from time to time for the purpose of giving effect to the transactions contemplated by this Agreement, the Preliminary Prospectus and the Prospectus and take all such steps as may be reasonably within its power to implement to the full extent the provisions of this Agreement and the transactions contemplated thereby and the Preliminary Prospectus and the Prospectus.
3.5 The REIT will apply the net proceeds from the issue and sale of the Offered Units substantially in accordance with the disclosure set forth under the heading “Use of Proceeds” in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement
Covenants of the REIT. 3.1 The REIT covenants and agrees with the Underwriters that:
3.1.1 3.1 the Units Offered Securities will be duly and validly created, authorized and issued on the payment therefor and such Units Offered Securities will have attributes corresponding in all material respects to the descriptions thereof in this Agreement and in the Preliminary Prospectus, the Prospectus and any Supplementary MaterialAmendment;
3.1.2 3.2 the REIT shall have prepared Underlying Securities will be duly and filed validly authorized for issuance and, when issued pursuant to the Preliminary Prospectus in both terms of the English and French languages Subscription Receipts in accordance with the Passport System Subscription Receipt Agreement, or upon the conversion, redemption or repayment of the Debentures in accordance with the Ontario Securities Commission Indenture, or for delivery to the Debenture Trustee in its capacity respect of the payment of interest on the Debentures in accordance with the Indenture, as the principal regulator under the Passport System case may be, will be issued as fully paid and non-assessable and will have attributes corresponding in all material respects to the descriptions thereof in the Prospectus and any Amendment;
3.3 it shall fulfill to the satisfaction of the Underwriters all legal requirements to be fulfilled by the REIT to enable the Offered Securities to be offered for sale and sold to the public in Canada by or through the Selling Firms who comply with all applicable Securities Laws in each of the Qualifying Jurisdictions; the REIT will use commercially its reasonable best efforts to obtain a receipt for fulfill all legal requirements to permit the distribution of the Offered Securities in each Qualifying Jurisdiction as soon as possible but in any event not later than the Qualification Deadline; such fulfillment shall include, without limiting the generality of the foregoing, compliance with all applicable Securities Laws including, without limitation, compliance with all requirements with respect to the preparation and filing of the Preliminary Prospectus from the principal regulator on behalf of the Securities Commissions in each of the Qualifying Jurisdictions not later than 5:00 p.m. (Toronto time) on May 6, 2014;
3.1.3 and the REIT shall prepare preparation and file filing of the Prospectus in each of the Qualifying Jurisdictions with Securities Commissions under such changes from the Securities LawsPreliminary Prospectus as the REIT and the Underwriters (acting reasonably) may approve, and will use commercially reasonable efforts such approval to obtain be evidenced by the Final Receipt not later than 5:00 p.m. (Toronto time) on May 13, 2014, or such later time as may be agreed upon signing of the Prospectus by the REIT and the Lead Underwriters, on behalf of the Underwriters, acting reasonably, and will have taken all other commercially reasonable steps and proceedings that may be necessary in order to qualify the Units for distribution in each of the Qualifying Jurisdictions by the Underwriters and other persons who are registered in a category permitting them to distribute the Units under the Securities Laws and who comply with Securities Laws;
3.1.4 until the completion of the distribution of the Units, 3.4 it shall allow and assist the Underwriters to participate fully in the preparation of the Prospectus Prospectus, any Amendment and any Supplementary Material and shall allow the Underwriters to conduct all "“due diligence" ” investigations which the Underwriters may reasonably require to fulfill the Underwriters' ’ obligations as underwriters and to enable the Underwriters responsibly to execute any certificate required to be executed by the Underwriters in any such documentation;
3.1.1 it shall cause the Marketing Materials, if any, as approved by the REIT and the Lead Underwriters, to be filed with the Securities Commissions, in the manner contemplated by applicable Securities Laws, not later than the day on which such Marketing Materials are first provided to a potential investor in connection with the Offering. Any comparables (as defined in NI 41-101) and all disclosure relating to such comparables shall be redacted from the Marketing Materials so filed;
3.1.2 3.5 it will comply with section 57 of the Securities Act (Ontario) and with the other comparable provisions of the other applicable Securities Laws in each of the Qualifying Jurisdictions and during the period from the date of signing the Preliminary Prospectus to the date of completion of distribution of the UnitsOffered Securities, will promptly notify inform the Underwriters in writing of the full particulars of: (i) of any material changechange (for greater certainty, material in the context of the Assets and the related business), actual, anticipated oranticipated, to the Knowledge of the REIT, contemplated or threatened, in the operating, financial or physical condition of the Assets or in the financial condition, assets, liabilities, business, affairs or operations or financial condition of the REIT (on and its subsidiaries taken as a consolidated basis); (ii) any material fact which has arisen whole or has been discovered and would have been required to have been stated in any Offering Document had that fact arisen or been discovered on, or prior to, the date of any of the Offering Documents; or (iii) any change in any material fact (which, for purposes of this Agreement shall be deemed to include the disclosure of any previously undisclosed material fact) contained or referred to in the Preliminary Prospectus, the Prospectus or any Amendment or Supplementary Material, and of the Offering Documentsexistence of any material fact which is, whether any event or state of facts has occurred after the date of this Agreement, which, in any case, is or may be be, of such a nature as to render the Preliminary Prospectus, the Prospectus or any of the Offering Documents Amendment or Supplementary Material, untrue, false or misleading in any a material respect or result in a Misrepresentation misrepresentation or which would result in any of the Offering DocumentsProspectus not complying with applicable Securities Laws. The REIT shall, to the satisfaction of the Underwriters and their counsel, counsel acting reasonably, promptly comply with all applicable filing and other requirements under the Securities Laws in the Qualifying Jurisdictions (and any other applicable securities laws) as a result of such change. The REIT shall, in good faith, first discuss with the Lead Underwriters TD Securities any change in circumstances (actual, actual or proposed or, to within the REIT's Knowledge, threatened’s knowledge) which is of such a nature that there is reasonable doubt whether notice need be given to the Underwriters pursuant to this paragraph 3.1.4 3.5 and, in any event, prior to making any filing referred to in this paragraph 3.1.3.5. For greater certainty, it is understood and agreed that, during the period from the date of signing the Preliminary Prospectus to the completion of the distribution of the Offered Securities, if the Underwriters reasonably determine, after consultation with the REIT, that a material change or change in a material fact has occurred or a previously undisclosed material fact has been discovered which, in any case, makes untrue or misleading any statement of a material fact contained in the Prospectus or any Amendment or Supplementary Material thereto, or which may result in a misrepresentation, the REIT will:
3.5.1 after consultation with the Underwriters, prepare and file promptly any Amendment which in its opinion and the opinion of the Underwriters, acting reasonably, may be necessary or advisable; and
3.5.2 contemporaneously with filing the Amendment under the applicable Securities Laws, deliver to the Underwriters:
3.5.2.1 a copy of the Amendment, originally signed as required by the Securities Laws;
3.5.2.2 an originally signed copy of all documents relating to the proposed distribution of the Offered Securities and filed with the Amendment under the applicable Securities Laws; and
3.5.2.3 such other documents as the Underwriters shall reasonably require;
3.6 it will not, and will use its reasonable efforts to ensure that the trustees and senior officers of the REIT listed in the AIF under “Trustees and Officers of the REIT” (other than any of such trustees and/or senior officers who are not, as of the date of filing, employees of the REIT, but including any trustees of and/or senior officers employed by the REIT and not so listed in the AIF) do not, bid for or purchase, for their own account or any account in which they have a beneficial interest, any securities of the REIT after the date hereof until the Closing Date without the written consent of TD Securities, not to be unreasonably withheld or delayed;
3.7 it will use its commercially reasonable efforts to achieve and maintain the REIT’s status in the Qualifying Jurisdictions as a reporting issuer, or its equivalent, not in default under the Securities Laws;
3.8 except as contemplated by the Prospectus, it will not agree, and will cause the other REIT Entities not to agree, to (A) any increase to the aggregate purchase price for the Acquisition Properties as set forth in the Acquisition Agreements,
Appears in 1 contract
Samples: Underwriting Agreement
Covenants of the REIT. 3.1 The REIT covenants and agrees with the Underwriters that:
3.1.1 3.1 the Units will be duly and validly created, authorized and issued on the payment therefor and such Units will have attributes corresponding in all material respects to the descriptions thereof in this Agreement and in the Preliminary Prospectus, the Prospectus and any Supplementary MaterialAmendment;
3.1.2 3.2 it shall fulfill to the satisfaction of the Underwriters all legal requirements to be fulfilled by the REIT to enable the Units to be offered for sale and sold to the public in Canada by or through the Selling Firms who comply with all applicable Securities Laws in each of the Qualifying Jurisdictions; the REIT will use its reasonable best efforts to fulfill all legal requirements to permit the distribution of the Units in each Qualifying Jurisdiction as soon as possible but in any event not later than the Qualification Deadline; such fulfillment shall have prepared include, without limiting the generality of the foregoing, compliance with all applicable Securities Laws including, without limitation, compliance with all requirements with respect to the preparation and filed filing of the Preliminary Prospectus in both the English and French languages in accordance with the Passport System with the Ontario Securities Commission in its capacity as the principal regulator under the Passport System and will use commercially reasonable efforts to obtain a receipt for the Preliminary Prospectus from the principal regulator on behalf of the Securities Commissions in each of the Qualifying Jurisdictions not later than 5:00 p.m. (Toronto time) on May 6, 2014;
3.1.3 and the REIT shall prepare preparation and file filing of the Prospectus in each of the Qualifying Jurisdictions with Securities Commissions under such changes from the Securities LawsPreliminary Prospectus as the REIT and the Underwriters (acting reasonably) may approve, and will use commercially reasonable efforts such approval to obtain be evidenced by the Final Receipt not later than 5:00 p.m. (Toronto time) on May 13, 2014, or such later time as may be agreed upon signing of the Prospectus by the REIT and the Lead Underwriters, on behalf of the Underwriters, acting reasonably, and will have taken all other commercially reasonable steps and proceedings that may be necessary in order to qualify the Units for distribution in each of the Qualifying Jurisdictions by the Underwriters and other persons who are registered in a category permitting them to distribute the Units under the Securities Laws and who comply with Securities Laws;
3.1.4 until the completion of the distribution of the Units, 3.3 it shall allow and assist the Underwriters to participate fully in the preparation of the Prospectus Prospectus, any Amendment and any Supplementary Material and shall allow the Underwriters to conduct all "“due diligence" ” investigations which the Underwriters may reasonably require to fulfill the Underwriters' ’ obligations as underwriters and to enable the Underwriters responsibly to execute any certificate required to be executed by the Underwriters in any such documentation;
3.1.1 it shall cause the Marketing Materials, if any, as approved by the REIT and the Lead Underwriters, to be filed with the Securities Commissions, in the manner contemplated by applicable Securities Laws, not later than the day on which such Marketing Materials are first provided to a potential investor in connection with the Offering. Any comparables (as defined in NI 41-101) and all disclosure relating to such comparables shall be redacted from the Marketing Materials so filed;
3.1.2 3.4 it will comply with section 57 of the Securities Act (Ontario) and with the other comparable provisions of the other applicable Securities Laws in each of the Qualifying Jurisdictions and during the period from the date of signing the Preliminary Prospectus to the date of completion of distribution of the Units, will promptly notify inform the Underwriters in writing of the full particulars of: (i) of any material changechange (for greater certainty, material in the context of the Assets and the related business), actual, anticipated oranticipated, to the Knowledge of the REIT, contemplated or threatened, in the operating, financial or physical condition of the Assets or in the financial condition, assets, liabilities, business, affairs or operations or financial condition of the REIT (on and its subsidiaries taken as a consolidated basis); (ii) any material fact which has arisen whole or has been discovered and would have been required to have been stated in any Offering Document had that fact arisen or been discovered on, or prior to, the date of any of the Offering Documents; or (iii) any change in any material fact (which, for purposes of this Agreement shall be deemed to include the disclosure of any previously undisclosed material fact) contained or referred to in the Preliminary Prospectus, the Prospectus or any Amendment or Supplementary Material, and of the Offering Documentsexistence of any material fact which is, whether any event or state of facts has occurred after the date of this Agreement, which, in any case, is or may be be, of such a nature as to render the Preliminary Prospectus, the Prospectus or any of the Offering Documents Amendment or Supplementary Material, untrue, false or misleading in any a material respect or result in a Misrepresentation misrepresentation or which would result in any of the Offering DocumentsProspectus not complying with applicable Securities Laws. The REIT shall, to the satisfaction of the Underwriters and their counsel, counsel acting reasonably, promptly comply with all applicable filing and other requirements under the Securities Laws in the Qualifying Jurisdictions (and any other applicable securities laws) as a result of such change. The REIT shall, in good faith, first discuss with the Lead Underwriters TD Securities any change in circumstances (actual, actual or proposed or, to within the REIT's Knowledge, threatened’s knowledge) which is of such a nature that there is reasonable doubt whether notice need be given to the Underwriters pursuant to this paragraph 3.1.4 3.4 and, in any event, prior to making any filing referred to in this paragraph 3.13.4. For greater certainty, it is understood and agreed that, during the period from the date of signing the Preliminary Prospectus to the completion of the distribution of the Units, if the Underwriters reasonably determine, after consultation with the REIT, that a material change or change in a material fact has occurred or a previously undisclosed material fact has been discovered which, in any case, makes untrue or misleading any statement of a material fact contained in the Prospectus or any Amendment or Supplementary Material thereto, or which may result in a misrepresentation, the REIT will:
3.4.1 after consultation with the Underwriters, prepare and file promptly any Amendment which in its opinion and the opinion of the Underwriters, acting reasonably, may be necessary or advisable; and
3.4.2 contemporaneously with filing the Amendment under the applicable Securities Laws, deliver to the Underwriters:
3.4.2.1 a copy of the Amendment, originally signed as required by the Securities Laws;
3.4.2.2 an originally signed copy of all documents relating to the proposed distribution of the Units and filed with the Amendment under the applicable Securities Laws; and
3.4.2.3 such other documents as the Underwriters shall reasonably require;
3.5 it will not, and will use its reasonable efforts to ensure that the trustees and senior officers of the REIT listed in the AIF under “Trustees and Officers of the REIT” (other than any of such trustees and/or senior officers who are not, as of the date of filing, employees of the REIT, but including any trustees of and/or senior officers employed by the REIT and not so listed in the AIF) do not, bid for or purchase, for their own account or any account in which they have a beneficial interest, any units of the REIT after the date hereof until the Closing Date without the written consent of TD Securities, not to be unreasonably withheld or delayed;
3.6 it will use its commercially reasonable efforts to achieve and maintain the REIT’s status in the Qualifying Jurisdictions as a reporting issuer, or its equivalent, not in default under the Securities Laws; and
3.7 it will ensure that, upon the issue thereof, the Units will be conditionally approved for listing on the Stock Exchange, subject only to compliance with standard listing conditions.
Appears in 1 contract
Samples: Underwriting Agreement
Covenants of the REIT. 3.1 The REIT covenants and agrees with the Underwriters that:
3.1.1 the Offered Units will be duly and validly created, authorized and issued on the payment therefor and such Offered Units will have attributes corresponding in all material respects to the descriptions thereof in this Agreement and in the Preliminary Prospectus, the Prospectus and any Supplementary MaterialAmendment;
3.1.2 it shall fulfill to the satisfaction of the Underwriters all legal requirements to be fulfilled by it to enable the Offered Units to be offered for sale and sold (i) to the public in Canada by or through the Selling Firms who comply with all applicable Securities Laws in each of the Qualifying Jurisdictions and (ii) in the United States in transactions exempt from the registration requirements of the U.S. Securities Act and applicable state securities laws to Qualified Institutional Buyers in accordance with Rule 144A; the REIT will use commercially reasonable efforts to fulfill all legal requirements to permit the distribution of the Offered Units in each Qualifying Jurisdiction as soon as possible but in any event not later than the Qualification Deadline; such fulfillment shall have prepared include, without limiting the generality of the foregoing, compliance with all applicable Securities Laws including, without limitation, compliance with all requirements with respect to the preparation and filed filing of the Preliminary Prospectus and the Prospectus in both the English and French languages in accordance form and substance satisfactory to the Underwriters in each of the Qualifying Jurisdictions with the Passport System Securities Commissions under the Securities Laws, the preparation and filing of the Prospectus in such Qualifying Jurisdictions with such changes from the Preliminary Prospectus as the REIT and the Underwriters may approve, such approval to be evidenced by the signing of the Prospectus by the REIT and the Underwriters, and the obtaining of an NP 11-202 receipt therefor from the Ontario Securities Commission as soon as possible after the filing but in its capacity any event on or before the Qualification Deadline, and the delivering of a copy thereof to the Underwriters and their counsel; and, for greater certainty, the REIT will, as soon as possible following the execution of this Agreement (or such other time and/or date as the principal regulator REIT and the Joint Bookrunners, on behalf of the Underwriters, may in writing agree) prepare and file the Preliminary Prospectus in form and substance satisfactory to the Underwriters in each of the Qualifying Jurisdictions with the Securities Commissions under the Passport System Securities Laws, and will use commercially its reasonable efforts to obtain a an NP 11-202 receipt for the Preliminary Prospectus from the principal regulator on behalf of the Securities Commissions in each of the Qualifying Jurisdictions therefor on the date of such filing, and in any event shall obtain such receipt no later than the next Business Day after the date of such filing, and deliver a copy thereof to the Underwriters and their counsel; and, for greater certainty, the REIT will use its reasonable commercial efforts to promptly satisfy or resolve all comments of the Securities Commissions regarding the Preliminary Prospectus and will, as soon as possible following the satisfaction or resolution of such comments, and, in any event, not later than 5:00 p.m. the Qualification Deadline (Toronto time) on May 6, 2014;
3.1.3 or such other time and/or date as the REIT shall and the Joint Bookrunners, on behalf of the Underwriters, may in writing agree) prepare and file the Prospectus in each of the Qualifying Jurisdictions accordance with Securities Commissions under the Securities LawsNP 11-202;
3.1.3 it will provide its full cooperation, and will use commercially reasonable efforts cause its management to obtain provide their full cooperation, in marketing the Final Receipt not later than 5:00 p.m. (Toronto time) on May 13Offering as the Underwriters may reasonably request, 2014including in connection with the preparation of any marketing materials for provision to any potential investor in the Offered Units that the Underwriters reasonably request, or and any template version of any such later time as may marketing materials shall be agreed upon by the REIT and the Lead UnderwritersJoint Bookrunners, on behalf of the Underwriters, each acting reasonably, and will have taken all other commercially reasonable steps and proceedings that may be necessary in order to qualify the Units for distribution in each of the Qualifying Jurisdictions by the Underwriters and other persons who are registered in a category permitting them to distribute the Units under the Securities Laws and who comply with Securities Laws;
3.1.4 until the completion of the distribution of the Units, it reasonably (which agreement shall allow and assist the Underwriters to participate fully in the preparation of the Prospectus and any Supplementary Material and shall allow the Underwriters to conduct all "due diligence" investigations which the Underwriters may reasonably require to fulfill constitute the Underwriters' obligations authority to use such Marketing Documents, including any limited-use versions thereof, in connection with the Offering), and file such template version with the Securities Commissions as underwriters and to enable the Underwriters responsibly to execute any certificate required to be executed by the Underwriters in any such documentation;
3.1.1 soon as reasonably practical after it shall cause the Marketing Materials, if any, as approved has been so agreed upon by the REIT and the Lead Underwriters, to be filed with the Securities CommissionsJoint Bookrunners and, in the manner contemplated by applicable Securities Lawsany event, not later than the day on which such Marketing Materials are marketing materials have or will be first provided to a any potential investor in connection with the Offering. Any comparables (as defined in NI 41-101) and all disclosure relating to such comparables comparables) shall be redacted (to the fullest extent permitted by NI 44-101) from the Marketing Materials so filed;
3.1.2 it will comply template version of any marketing materials filed with section 57 of the Securities Act (Ontario) and with the comparable provisions of the other applicable Securities Laws and during the period from the date of signing the Preliminary Prospectus to the date of completion of distribution of the Units, will promptly notify the Underwriters in writing of the full particulars of: (i) any material change, actual, anticipated or, to the Knowledge of the REIT, threatened, in the assets, business, operations or financial condition of the REIT (on a consolidated basis); (ii) any material fact which has arisen or has been discovered and would have been required to have been stated in any Offering Document had that fact arisen or been discovered on, or prior to, the date of any of the Offering Documents; or (iii) any change in any material fact contained or referred to in any of the Offering Documents, whether any event or state of facts has occurred after the date of this Agreement, which, in any case, is or may be of such a nature as to render any of the Offering Documents untrue, false or misleading in any material respect or result in a Misrepresentation in any of the Offering Documents. The REIT shall, to the satisfaction of the Underwriters and their counsel, acting reasonably, promptly comply with all applicable filing and other requirements under the Securities Laws in the Qualifying Jurisdictions (and any other applicable securities laws) as a result of such change. The REIT shall, in good faith, first discuss with the Lead Underwriters any change in circumstances (actual, proposed or, to the REIT's Knowledge, threatened) which is of such a nature that there is reasonable doubt whether notice need be given to the Underwriters Commissions pursuant to this paragraph 3.1.4 and, in any event, prior to making any filing referred to in this paragraph 3.1.paragraph
Appears in 1 contract
Samples: Underwriting Agreement
Covenants of the REIT. 3.1 The REIT covenants and agrees with the Underwriters that:
3.1.1 (a) the Units Offered Subscription Receipts will be duly and validly created, authorized and issued on the payment therefor and such Units Offered Subscription Receipts will have attributes corresponding in all material respects to the descriptions thereof in this Agreement and in the Preliminary Prospectus, the Prospectus and any Supplementary MaterialAmendment;
3.1.2 (b) it shall fulfill to the REIT satisfaction of the Underwriters all legal requirements to be fulfilled by it to enable the Offered Subscription Receipts to be offered for sale and sold to the public in Canada by or through the Selling Firms who comply with all applicable Securities Laws in each of the Qualifying Jurisdictions; such fulfillment shall have prepared include, without limiting the generality of the foregoing, compliance with all applicable Securities Laws including, without limitation, the preparation and filed filing of the Preliminary Prospectus in both the English and French languages in accordance form and substance satisfactory to the Underwriters in each of the Qualifying Jurisdictions, the preparation and filing of the Prospectus in such Qualifying Jurisdictions with such changes from the Preliminary Prospectus as the REIT and the Underwriters may approve, such approval to be evidenced by the signing of the Prospectus by the REIT and the Underwriters, and the obtaining of an NP 11-202 receipt therefor from the British Columbia Securities Commission as soon as possible after the filing but in any event on or before the Qualification Deadline, and the delivering of a copy thereof to the Underwriters and their counsel; and for greater certainty, the REIT will, as soon as possible following the execution of this Agreement, and, in any event, not later than 1:00 p.m. (Vancouver time) on October 17, 2013 (or such other time and/or date as the REIT and the Co-Lead Underwriters, on behalf of the Underwriters, may in writing agree) prepare and file the Preliminary Prospectus in form and substance satisfactory to the Underwriters in each of the Qualifying Jurisdictions with the Passport System with the Ontario Securities Commission in its capacity as the principal regulator Commissions under the Passport System Securities Laws and will use commercially reasonable efforts to obtain a an NP 11-202 receipt for the Preliminary Prospectus from the principal regulator on behalf of the Securities Commissions in each of the Qualifying Jurisdictions not later than 5:00 p.m. (Toronto time) therefor on May 6the date of such filing and deliver a copy thereof to the Underwriters and their counsel; and for greater certainty, 2014;
3.1.3 the REIT shall prepare and file the Prospectus in each of the Qualifying Jurisdictions with Securities Commissions under the Securities Laws, and will use its commercially reasonable efforts to obtain promptly satisfy or resolve all comments of the Final Receipt Securities Commissions regarding the Preliminary Prospectus and will, as soon as possible following the satisfaction or resolution of such comments, and, in any event, not later than 5:00 p.m. the Qualification Deadline (Toronto time) on May 13, 2014, or such later other time and/or date as may be agreed upon by the REIT and the Co-Lead Underwriters, on behalf of the Underwriters, acting reasonably, may in writing agree) prepare and will have taken all other commercially reasonable steps and proceedings that may be necessary file the Prospectus in order to qualify the Units for distribution in each of the Qualifying Jurisdictions by the Underwriters and other persons who are registered in a category permitting them to distribute the Units under the Securities Laws and who comply accordance with Securities LawsNP 11-202;
3.1.4 (c) until the completion of the distribution of the UnitsOffered Subscription Receipts, it shall allow and assist the Underwriters to participate fully in the preparation of the Preliminary Prospectus, the Prospectus and any Supplementary Material Amendment and shall allow the Underwriters to conduct all "“due diligence" investigations which the Underwriters may ” reasonably require to fulfill the Underwriters' obligations as underwriters Underwrite the Underwriters to avail themselves of a defence to any claim for misrepresentation in the Preliminary Prospectus, the Prospectus or any Amendment and to enable the Underwriters responsibly to execute any certificate required to be executed by the Underwriters in any such documentation. It shall be a condition precedent to the Underwriters’ execution Porelfiminaary nPyrospeccteusr, tthie ficate Prospectus or any Amendment that the Underwriters be satisfied, acting reasonably, as to the form and content of the document and the execution thereby of such certificate shall be conclusive evidence of such satisfaction;
3.1.1 it shall cause the Marketing Materials, if any, as approved by the REIT and the Lead Underwriters, to be filed with the Securities Commissions, in the manner contemplated by applicable Securities Laws, not later than the day on which such Marketing Materials are first provided to a potential investor in connection with the Offering. Any comparables (as defined in NI 41-101d) and all disclosure relating to such comparables shall be redacted from the Marketing Materials so filed;
3.1.2 it will comply with section 57 of the Securities Act (Ontario) and with the other comparable provisions of the other applicable Securities Laws and during the period from the date of signing the Preliminary Prospectus to the date of completion of distribution of the UnitsOffered Subscription Receipts, will promptly notify the Underwriters in writing of the full particulars of: (i) of any material change, actual, anticipated or, to the Knowledge of the REIT, or threatened, in the business, financial condition, assets, businessliabilities (contingent or otherwise), results of operations or financial condition prospects of the REIT (on a consolidated basis); (ii) any material fact which has arisen or has been discovered and would have been required to have been stated in any Offering Document had that fact arisen or been discovered onthe Acquisition Properties, or prior to, the date of any of the Offering Documents; or (iii) any change in any material fact contained or referred to in the Preliminary Prospectus, the Prospectus or in any Amendment, and of the Offering Documentsexistence of any material fact which is, whether any event or state of facts has occurred after the date of this Agreement, which, in any case, is or may be be, of such a nature as to render the Preliminary Prospectus, the Prospectus or any of the Offering Documents Amendment, untrue, false or misleading in any a material respect or result in a Misrepresentation in any of the Offering Documentsmisrepresentation. The REIT It shall, to the satisfaction of the Underwriters and their counsel, acting reasonably, promptly comply with all applicable filing and other requirements under the Securities Laws in the Qualifying Jurisdictions (and any other applicable securities laws) as a result of such change. The REIT It shall, in good faith, first discuss with the Co-Lead Underwriters any change in circumstances (actual, proposed or, to the REIT's Knowledge, threatenedwiKtnhowilendge,tthhreaeteneRdE) which is of wIhiTch’issof such a nature that there is reasonable doubt whether notice need be given to the Underwriters pursuant to this paragraph 3.1.4 3.1(d) and, in any event, prior to making any filing referred to in this paragraph 3.13.1(d). For greater certainty but not so as to limit the generality of the foregoing, it is understood and agreed that, during the period from the date of signing the Preliminary Prospectus to the date of completion of the distribution of the Offered Subscription Receipts, if the Underwriters reasonably determine, after consultation with the REIT, that a material change or change in a material fact has occurred which makes untrue or misleading any statement of a material fact contained in the Preliminary Prospectus, the Prospectus or in any Amendment, or which may result in a misrepresentation, the REIT will:
(i) prepare and file promptly any Amendment which in its opinion, acting reasonably, may be necessary or advisable, after consultation with the Underwriters; and
(ii) contemporaneously with filing the Amendment under the Laws of the Qualifying Jurisdictions, deliver to the Underwriters:
(A) a copy of the Amendment, signed as required by the Securities Laws;
(B) a copy of all documents relating to the proposed distribution of the Offered Subscription Receipts and filed with the Amendment under the applicable Securities Laws; and
(C) such other documents as the Underwriters shall reasonably require; and; and
(e) it will ensure that, when issued, the Offered Subscription Receipts issuable hereunder will be conditionally approved for listing on the Exchange, subject only to compliance with the Standard Listing Conditions.
3.2 During the period commencing on the date hereof and ending on the date the Underwriters notify the REIT of the completion of the distribution of the Offered Subscription Receipts, the REIT will promptly inform the Underwriters of the full particulars of:
(a) any request of any Securities Commission for any amendment to the Preliminary Prospectus, the Prospectus or any Amendment or for any additional information in connection with the Offering;
(b) the issuance by any Securities Commission, the Exchange or any other Governmental Authority of any order to cease or suspend trading of any securities of the REIT or of the institution or threat of institution of any proceedings for that purpose; or
(c) any notice or other correspondence received by any of them from any Governmental Authority requesting information, a meeting or a hearing or commencing or threatening any investigation into any of them or their business that could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT (on a consolidated basis) or the completion of the Offering.
3.3 The REIT agrees that it will not agree, and will cause the other REIT Entities not to agree, to
(A) any change to the aggregate purchase price for the Acquisition Properties as set forth in the Purchase and Sale Agreement, (B) any material changes to the assets to be acquired or liabilities to be assumed by the REIT, directly or indirectly, pursuant to the Purchase and Sale Agreement, (C) any changes to, or waivers of, any material condition (in the determination of the REIT, acting reasonably) to the closing of the Acquisition as set forth in the Purchase and Sale Agreement or (D) any material changes to the terms of the Acquisition to the extent such terms are described in the Prospectuses, in each case, without the consent of the Co-Lead Underwriters, on behalf of the Underwriters, which consent may not be unreasonably withheld or delayed; provided, however, that the parties hereto acknowledge that the Acquisition may involve completion of the acquisition of three of the four Acquisition Properties, in the manner contemplated by the Purchase and Sale Agreement.
3.4 The REIT will use commercially reasonable efforts to promptly do, make, execute, deliver or cause to be done, made, executed or delivered, all such acts, documents and things as the Underwriters may reasonably require from time to time for the purpose of giving effect to the transactions contemplated by this Agreement, the Subscription Receipt Agreement, the Purchase and Sale Agreement, the Preliminary Prospectus and the Prospectus and take all such steps as may be reasonably within its power to implement to the full extent the provisions of this Agreement and the transactions contemplated thereby and the Preliminary Prospectus and the Prospectus.
3.5 The REIT will apply the net proceeds from the issue and sale of the Offered Subscription Receipts substantially in accordance with the disclosure setUsefoforth un
Appears in 1 contract
Samples: Underwriting Agreement
Covenants of the REIT. 3.1 The REIT covenants and agrees with the Underwriters that:
3.1.1 (a) the Units Offered Subscription Receipts will be duly and validly created, authorized and issued on the payment therefor and such Units Offered Subscription Receipts will have attributes corresponding in all material respects to the descriptions thereof in this Agreement and in the Preliminary Prospectus, the Prospectus and any Supplementary MaterialAmendment;
3.1.2 (b) it shall fulfill to the REIT satisfaction of the Underwriters all legal requirements to be fulfilled by it to enable the Offered Subscription Receipts to be offered for sale and sold to the public in Canada by or through the Selling Firms who comply with all applicable Securities Laws in each of the Qualifying Jurisdictions; such fulfillment shall have prepared include, without limiting the generality of the foregoing, compliance with all applicable Securities Laws including, without limitation, the preparation and filed filing of the Preliminary Prospectus in both the English and French languages in accordance form and substance satisfactory to the Underwriters in each of the Qualifying Jurisdictions, the preparation and filing of the Prospectus in such Qualifying Jurisdictions with such changes from the Preliminary Prospectus as the REIT and the Underwriters may approve, such approval to be evidenced by the signing of the Prospectus by the REIT and the Underwriters, and the obtaining of an NP 11-202 receipt therefor from the British Columbia Securities Commission as soon as possible after the filing but in any event on or before the Qualification Deadline, and the delivering of a copy thereof to the Underwriters and their counsel; and for greater certainty, the REIT will, as soon as possible following the execution of this Agreement, and, in any event, not later than 1:00 p.m. (Vancouver time) on October 17, 2013 (or such other time and/or date as the REIT and the Co-Lead Underwriters, on behalf of the Underwriters, may in writing agree) prepare and file the Preliminary Prospectus in form and substance satisfactory to the Underwriters in each of the Qualifying Jurisdictions with the Passport System with the Ontario Securities Commission in its capacity as the principal regulator Commissions under the Passport System Securities Laws and will use commercially reasonable efforts to obtain a an NP 11-202 receipt for the Preliminary Prospectus from the principal regulator on behalf of the Securities Commissions in each of the Qualifying Jurisdictions not later than 5:00 p.m. (Toronto time) therefor on May 6the date of such filing and deliver a copy thereof to the Underwriters and their counsel; and for greater certainty, 2014;
3.1.3 the REIT shall prepare and file the Prospectus in each of the Qualifying Jurisdictions with Securities Commissions under the Securities Laws, and will use its commercially reasonable efforts to obtain promptly satisfy or resolve all comments of the Final Receipt Securities Commissions regarding the Preliminary Prospectus and will, as soon as possible following the satisfaction or resolution of such comments, and, in any event, not later than 5:00 p.m. the Qualification Deadline (Toronto time) on May 13, 2014, or such later other time and/or date as may be agreed upon by the REIT and the Co-Lead Underwriters, on behalf of the Underwriters, acting reasonably, may in writing agree) prepare and will have taken all other commercially reasonable steps and proceedings that may be necessary file the Prospectus in order to qualify the Units for distribution in each of the Qualifying Jurisdictions by the Underwriters and other persons who are registered in a category permitting them to distribute the Units under the Securities Laws and who comply accordance with Securities LawsNP 11-202;
3.1.4 (c) until the completion of the distribution of the UnitsOffered Subscription Receipts, it shall allow and assist the Underwriters to participate fully in the preparation of the Preliminary Prospectus, the Prospectus and any Supplementary Material Amendment and shall allow the Underwriters to conduct all "“due diligence" ” investigations which the Underwriters may reasonably require to fulfill the Underwriters' ’ obligations as underwriters underwriters, to enable the Underwriters to avail themselves of a defence to any claim for misrepresentation in the Preliminary Prospectus, the Prospectus or any Amendment and to enable the Underwriters responsibly to execute any certificate required to be executed by the Underwriters in any such documentation. It shall be a condition precedent to the Underwriters’ execution of any certificate in the Preliminary Prospectus, the Prospectus or any Amendment that the Underwriters be satisfied, acting reasonably, as to the form and content of the document and the execution thereby of such certificate shall be conclusive evidence of such satisfaction;
3.1.1 it shall cause the Marketing Materials, if any, as approved by the REIT and the Lead Underwriters, to be filed with the Securities Commissions, in the manner contemplated by applicable Securities Laws, not later than the day on which such Marketing Materials are first provided to a potential investor in connection with the Offering. Any comparables (as defined in NI 41-101d) and all disclosure relating to such comparables shall be redacted from the Marketing Materials so filed;
3.1.2 it will comply with section 57 of the Securities Act (Ontario) and with the other comparable provisions of the other applicable Securities Laws and during the period from the date of signing the Preliminary Prospectus to the date of completion of distribution of the UnitsOffered Subscription Receipts, will promptly notify the Underwriters in writing of the full particulars of: (i) of any material change, actual, anticipated or, to the Knowledge of the REIT, or threatened, in the business, financial condition, assets, businessliabilities (contingent or otherwise), results of operations or financial condition prospects of the REIT (on a consolidated basis); (ii) any material fact which has arisen or has been discovered and would have been required to have been stated in any Offering Document had that fact arisen or been discovered onthe Acquisition Properties, or prior to, the date of any of the Offering Documents; or (iii) any change in any material fact contained or referred to in the Preliminary Prospectus, the Prospectus or in any Amendment, and of the Offering Documentsexistence of any material fact which is, whether any event or state of facts has occurred after the date of this Agreement, which, in any case, is or may be be, of such a nature as to render the Preliminary Prospectus, the Prospectus or any of the Offering Documents Amendment, untrue, false or misleading in any a material respect or result in a Misrepresentation in any of the Offering Documentsmisrepresentation. The REIT It shall, to the satisfaction of the Underwriters and their counsel, acting reasonably, promptly comply with all applicable filing and other requirements under the Securities Laws in the Qualifying Jurisdictions (and any other applicable securities laws) as a result of such change. The REIT It shall, in good faith, first discuss with the Co-Lead Underwriters any change in circumstances (actual, proposed or, to within the REIT's ’s Knowledge, threatened) which is of such a nature that there is reasonable doubt whether notice need be given to the Underwriters pursuant to this paragraph 3.1.4 3.1(d) and, in any event, prior to making any filing referred to in this paragraph 3.13.1(d). For greater certainty but not so as to limit the generality of the foregoing, it is understood and agreed that, during the period from the date of signing the Preliminary Prospectus to the date of completion of the distribution of the Offered Subscription Receipts, if the Underwriters reasonably determine, after consultation with the REIT, that a material change or change in a material fact has occurred which makes untrue or misleading any statement of a material fact contained in the Preliminary Prospectus, the Prospectus or in any Amendment, or which may result in a misrepresentation, the REIT will:
(i) prepare and file promptly any Amendment which in its opinion, acting reasonably, may be necessary or advisable, after consultation with the Underwriters; and
(ii) contemporaneously with filing the Amendment under the Laws of the Qualifying Jurisdictions, deliver to the Underwriters:
(A) a copy of the Amendment, signed as required by the Securities Laws;
(B) a copy of all documents relating to the proposed distribution of the Offered Subscription Receipts and filed with the Amendment under the applicable Securities Laws; and
(C) such other documents as the Underwriters shall reasonably require; and; and
(e) it will ensure that, when issued, the Offered Subscription Receipts issuable hereunder will be conditionally approved for listing on the Exchange, subject only to compliance with the Standard Listing Conditions.
3.2 During the period commencing on the date hereof and ending on the date the Underwriters notify the REIT of the completion of the distribution of the Offered Subscription Receipts, the REIT will promptly inform the Underwriters of the full particulars of:
(a) any request of any Securities Commission for any amendment to the Preliminary Prospectus, the Prospectus or any Amendment or for any additional information in connection with the Offering;
(b) the issuance by any Securities Commission, the Exchange or any other Governmental Authority of any order to cease or suspend trading of any securities of the REIT or of the institution or threat of institution of any proceedings for that purpose; or
(c) any notice or other correspondence received by any of them from any Governmental Authority requesting information, a meeting or a hearing or commencing or threatening any investigation into any of them or their business that could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT (on a consolidated basis) or the completion of the Offering.
3.3 The REIT agrees that it will not agree, and will cause the other REIT Entities not to agree, to
(A) any change to the aggregate purchase price for the Acquisition Properties as set forth in the Purchase and Sale Agreement, (B) any material changes to the assets to be acquired or liabilities to be assumed by the REIT, directly or indirectly, pursuant to the Purchase and Sale Agreement, (C) any changes to, or waivers of, any material condition (in the determination of the REIT, acting reasonably) to the closing of the Acquisition as set forth in the Purchase and Sale Agreement or (D) any material changes to the terms of the Acquisition to the extent such terms are described in the Prospectuses, in each case, without the consent of the Co-Lead Underwriters, on behalf of the Underwriters, which consent may not be unreasonably withheld or delayed; provided, however, that the parties hereto acknowledge that the Acquisition may involve completion of the acquisition of three of the four Acquisition Properties, in the manner contemplated by the Purchase and Sale Agreement.
3.4 The REIT will use commercially reasonable efforts to promptly do, make, execute, deliver or cause to be done, made, executed or delivered, all such acts, documents and things as the Underwriters may reasonably require from time to time for the purpose of giving effect to the transactions contemplated by this Agreement, the Subscription Receipt Agreement, the Purchase and Sale Agreement, the Preliminary Prospectus and the Prospectus and take all such steps as may be reasonably within its power to implement to the full extent the provisions of this Agreement and the transactions contemplated thereby and the Preliminary Prospectus and the Prospectus.
3.5 The REIT will apply the net proceeds from the issue and sale of the Offered Subscription Receipts substantially in accordance with the disclosure set forth under the heading “Use of Proceeds” in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement
Covenants of the REIT. 3.1 The REIT covenants and agrees with the Underwriters that:
3.1.1 3.1 the Units will be duly and validly created, authorized and issued on the payment therefor and such Units will have attributes corresponding in all material respects to the descriptions thereof in this Agreement and in the Preliminary Prospectus, the Prospectus and any Supplementary MaterialAmendment;
3.1.2 3.2 it shall fulfill to the satisfaction of the Underwriters all legal requirements to be fulfilled by the REIT to enable the Units to be offered for sale and sold to the public in Canada by or through the Selling Firms who comply with all applicable Securities Laws in each of the Qualifying Jurisdictions; the REIT will use its reasonable best efforts to fulfill all legal requirements to permit the distribution of the Units in each Qualifying Jurisdiction as soon as possible but in any event not later than the Qualification Deadline; such fulfillment shall have prepared include, without limiting the generality of the foregoing, compliance with all applicable Securities Laws including, without limitation, compliance with all requirements with respect to the preparation and filed filing of the Preliminary Prospectus in both the English and French languages in accordance with the Passport System with the Ontario Securities Commission in its capacity as the principal regulator under the Passport System and will use commercially reasonable efforts to obtain a receipt for the Preliminary Prospectus from the principal regulator on behalf of the Securities Commissions in each of the Qualifying Jurisdictions not later than 5:00 p.m. (Toronto time) on May 6, 2014;
3.1.3 and the REIT shall prepare preparation and file filing of the Prospectus in each of the Qualifying Jurisdictions with Securities Commissions under such changes from the Securities LawsPreliminary Prospectus as the REIT and the Underwriters (acting reasonably) may approve, and will use commercially reasonable efforts such approval to obtain be evidenced by the Final Receipt not later than 5:00 p.m. (Toronto time) on May 13, 2014, or such later time as may be agreed upon signing of the Prospectus by the REIT and the Lead Underwriters, on behalf of the Underwriters, acting reasonably, and will have taken all other commercially reasonable steps and proceedings that may be necessary in order to qualify the Units for distribution in each of the Qualifying Jurisdictions by the Underwriters and other persons who are registered in a category permitting them to distribute the Units under the Securities Laws and who comply with Securities Laws;
3.1.4 until the completion of the distribution of the Units, 3.3 it shall allow and assist the Underwriters to participate fully in the preparation of the Prospectus Prospectus, any Amendment and any Supplementary Material and shall allow the Underwriters to conduct all "“due diligence" ” investigations which the Underwriters may reasonably require to fulfill the Underwriters' ’ obligations as underwriters and to enable the Underwriters responsibly to execute any certificate required to be executed by the Underwriters in any such documentation;
3.1.1 it shall cause the Marketing Materials, if any, as approved by the REIT and the Lead Underwriters, to be filed with the Securities Commissions, in the manner contemplated by applicable Securities Laws, not later than the day on which such Marketing Materials are first provided to a potential investor in connection with the Offering. Any comparables (as defined in NI 41-101) and all disclosure relating to such comparables shall be redacted from the Marketing Materials so filed;
3.1.2 3.4 it will comply with section 57 of the Securities Act (Ontario) and with the other comparable provisions of the other applicable Securities Laws in each of the Qualifying Jurisdictions and during the period from the date of signing the Preliminary Prospectus to the date of completion of distribution of the Units, will promptly notify inform the Underwriters in writing of the full particulars of: (i) of any material changechange (for greater certainty, material in the context of the Assets and the related business), actual, anticipated oranticipated, to the Knowledge of the REIT, contemplated or threatened, in the operating, financial or physical condition of the Assets or in the financial condition, assets, liabilities, business, affairs or operations or financial condition of the REIT (on and its subsidiaries taken as a consolidated basis); (ii) any material fact which has arisen whole or has been discovered and would have been required to have been stated in any Offering Document had that fact arisen or been discovered on, or prior to, the date of any of the Offering Documents; or (iii) any change in any material fact (which, for purposes of this Agreement shall be deemed to include the disclosure of any previously undisclosed material fact) contained or referred to in the Preliminary Prospectus, the Prospectus or any Amendment or Supplementary Material, and of the Offering Documentsexistence of any material fact which is, whether any event or state of facts has occurred after the date of this Agreement, which, in any case, is or may be be, of such a nature as to render the Preliminary Prospectus, the Prospectus or any of the Offering Documents Amendment or Supplementary Material, untrue, false or misleading in any a material respect or result in a Misrepresentation misrepresentation or which would result in any of the Offering DocumentsProspectus not complying with applicable Securities Laws. The REIT shall, to the satisfaction of the Underwriters and their counsel, counsel acting reasonably, promptly comply with all applicable filing and other requirements under the Securities Laws in the Qualifying Jurisdictions (and any other applicable securities laws) as a result of such change. The REIT shall, in good faith, first discuss with the Lead Underwriters TD Securities any change in circumstances (actual, actual or proposed or, to within the REIT's Knowledge, threatened’s knowledge) which is of such a nature that there is reasonable doubt whether notice need be given to the Underwriters pursuant to this paragraph 3.1.4 3.4 and, in any event, prior to making any filing referred to in this paragraph 3.13.4. For greater certainty, it is understood and agreed that, during the period from the date of signing the Preliminary Prospectus to the completion of the distribution of the Units, if the Underwriters reasonably determine, after consultation with the REIT, that a material change or change in a material fact has occurred or a previously undisclosed material fact has been discovered which, in any case, makes untrue or misleading any statement of a material fact contained in the Prospectus or any Amendment or Supplementary Material thereto, or which may result in a misrepresentation, the REIT will:
3.4.1 after consultation with the Underwriters, prepare and file promptly any Amendment which in its opinion and the opinion of the Underwriters, acting reasonably, may be necessary or advisable; and
3.4.2 contemporaneously with filing the Amendment under the applicable Securities Laws, deliver to the Underwriters:
3.4.2.1 a copy of the Amendment, originally signed as required by the Securities Laws;
3.4.2.2 an originally signed copy of all documents relating to the proposed distribution of the Units and filed with the Amendment under the applicable Securities Laws; and
3.4.2.3 such other documents as the Underwriters shall reasonably require;
3.5 it will not, and will use its reasonable efforts to ensure that the trustees and senior officers of the REIT listed in the AIF under “Trustees and Officers of the REIT” (other than any of such trustees and/or senior officers who are not, as of the date of filing, employees of the REIT, but including any trustees of and/or senior officers employed by the REIT and not so listed in the AIF) do not, bid for or purchase, for their own account or any account in which they have a beneficial interest, any units of the REIT after the date hereof until the Closing Date without the written consent of TD Securities, not to be unreasonably withheld or delayed;
3.6 it will use its commercially reasonable efforts to achieve and maintain the REIT’s status in the Qualifying Jurisdictions as a reporting issuer, or its equivalent, not in default under the Securities Laws;
3.7 during the period commencing on the date hereof and ending on the date of completion of the distribution of the Units, it will promptly provide TD Securities, on behalf of the Underwriters, with drafts of any material public disclosure of the REIT (prior to its release and/or filing, as the case may be) for review and approval by TD Securities and its counsel, such approval not to be unreasonably withheld or delayed; and
3.8 it will ensure that, upon the issue thereof, the Units will be conditionally approved for listing on the Stock Exchange, subject only to compliance with standard listing conditions.
Appears in 1 contract
Samples: Underwriting Agreement
Covenants of the REIT. 3.1 The REIT covenants and agrees with the Underwriters that:
3.1.1 3.1 the Units Debentures will be duly and validly created, authorized and issued on the payment therefor and such Units Debentures will have attributes corresponding in all material respects to the descriptions thereof in this Agreement and in the Preliminary ProspectusAgreement, the Prospectus and any Supplementary MaterialAmendment;
3.1.2 3.2 the REIT shall have prepared Debenture Units will be duly and filed validly authorized for issuance and, when issued upon the Preliminary Prospectus conversion, redemption or repayment of the Debentures or for delivery to the Debenture Trustee in both respect of the English and French languages payment of interest on the Debentures in accordance with the Passport System with the Ontario Securities Commission in its capacity Indenture, will be issued as the principal regulator under the Passport System fully paid and non-assessable and will have attributes corresponding in all material respects to the descriptions thereof in this Agreement, the Prospectus and any Amendment;
3.3 it shall fulfill to the satisfaction of the Underwriters all legal requirements to be fulfilled by the REIT to enable the Debentures to be offered for sale and sold to the public in Canada by or through the Selling Firms who comply with all applicable Securities Laws in each of the Qualifying Jurisdictions; the REIT will use commercially its reasonable best efforts to obtain a receipt for fulfill all legal requirements to permit the distribution of the Debentures in each Qualifying Jurisdiction as soon as possible but in any event not later than the Qualification Deadline; such fulfillment shall include, without limiting the generality of the foregoing, compliance with all applicable Securities Laws including, without limitation, compliance with all requirements with respect to the preparation and filing of the Preliminary Prospectus from the principal regulator on behalf of the Securities Commissions in each of the Qualifying Jurisdictions not later than 5:00 p.m. (Toronto time) on May 6, 2014;
3.1.3 and the REIT shall prepare preparation and file filing of the Prospectus in each of the Qualifying Jurisdictions with Securities Commissions under such changes from the Securities LawsPreliminary Prospectus as the REIT and the Underwriters (acting reasonably) may approve, and will use commercially reasonable efforts such approval to obtain be evidenced by the Final Receipt not later than 5:00 p.m. (Toronto time) on May 13, 2014, or such later time as may be agreed upon signing of the Prospectus by the REIT and the Lead Underwriters, on behalf of the Underwriters, acting reasonably, and will have taken all other commercially reasonable steps and proceedings that may be necessary in order to qualify the Units for distribution in each of the Qualifying Jurisdictions by the Underwriters and other persons who are registered in a category permitting them to distribute the Units under the Securities Laws and who comply with Securities Laws;
3.1.4 until the completion of the distribution of the Units, 3.4 it shall allow and assist the Underwriters to participate fully in the preparation of the Prospectus Prospectus, any Amendment and any Supplementary Material and shall allow the Underwriters to conduct all "“due diligence" ” investigations which the Underwriters may reasonably require to fulfill the Underwriters' ’ obligations as underwriters and to enable the Underwriters responsibly to execute any certificate required to be executed by the Underwriters in any such documentation;
3.1.1 it shall cause the Marketing Materials, if any, as approved by the REIT and the Lead Underwriters, to be filed with the Securities Commissions, in the manner contemplated by applicable Securities Laws, not later than the day on which such Marketing Materials are first provided to a potential investor in connection with the Offering. Any comparables (as defined in NI 41-101) and all disclosure relating to such comparables shall be redacted from the Marketing Materials so filed;
3.1.2 3.5 it will comply with section 57 of the Securities Act (Ontario) and with the other comparable provisions of the other applicable Securities Laws in each of the Qualifying Jurisdictions and during the period from the date of signing the Preliminary Prospectus to the date of completion of distribution of the UnitsDebentures, will promptly notify inform the Underwriters in writing of the full particulars of: (i) of any material changechange (for greater certainty, material in the context of the Assets and the related business), actual, anticipated oranticipated, to the Knowledge of the REIT, contemplated or threatened, in the operating, financial or physical condition of the Assets or in the financial condition, assets, liabilities, business, affairs or operations or financial condition of the REIT (on and its subsidiaries taken as a consolidated basis); (ii) any material fact which has arisen whole or has been discovered and would have been required to have been stated in any Offering Document had that fact arisen or been discovered on, or prior to, the date of any of the Offering Documents; or (iii) any change in any material fact (which, for purposes of this Agreement shall be deemed to include the disclosure of any previously undisclosed material fact) contained or referred to in the Preliminary Prospectus, the Prospectus or any Amendment or Supplementary Material, and of the Offering Documentsexistence of any material fact which is, whether any event or state of facts has occurred after the date of this Agreement, which, in any case, is or may be be, of such a nature as to render the Preliminary Prospectus, the Prospectus or any of the Offering Documents Amendment or Supplementary Material, untrue, false or misleading in any a material respect or result in a Misrepresentation misrepresentation or which would result in any of the Offering DocumentsProspectus not complying with applicable Securities Laws. The REIT shall, to the satisfaction of the Underwriters and their counsel, counsel acting reasonably, promptly comply with all applicable filing and other requirements under the Securities Laws in the Qualifying Jurisdictions (and any other applicable securities laws) as a result of such change. The REIT shall, in good faith, first discuss with the Lead Underwriters any change in circumstances (actual, actual or proposed or, to within the REIT's Knowledge, threatened’s knowledge) which is of such a nature that there is reasonable doubt whether notice need be given to the Underwriters pursuant to this paragraph 3.1.4 3.5 and, in any event, prior to making any filing referred to in this paragraph 3.13.5. For greater certainty, it is understood and agreed that, during the period from the date of signing the Preliminary Prospectus to the completion of the distribution of the Debentures, if the Underwriters reasonably determine, after consultation with the REIT, that a material change or change in a material fact has occurred or a previously undisclosed material fact has been discovered which, in any case, makes untrue or misleading any statement of a material fact contained in the Prospectus or any Amendment or Supplementary Material thereto, or which may result in a misrepresentation, the REIT will:
3.5.1 after consultation with the Underwriters, prepare and file promptly any Amendment which in its opinion and the opinion of the Underwriters, acting reasonably, may be necessary or advisable; and
3.5.2 contemporaneously with filing the Amendment under the applicable Securities Laws, deliver to the Underwriters:
3.5.2.1 a copy of the Amendment, originally signed as required by the Securities Laws;
3.5.2.2 an originally signed copy of all documents relating to the proposed distribution of the Debentures and filed with the Amendment under the applicable Securities Laws; and
3.5.2.3 such other documents as the Underwriters shall reasonably require;
3.6 it will not, and will use its reasonable efforts to ensure that the trustees and senior officers of the REIT listed in the AIF under “Trustees and Officers of the REIT” (other than any of such officers who are not, as of the date of filing, employees of the REIT, but including any trustees of and/or senior officers employed by the REIT and not so listed in the AIF) do not, bid for or purchase, for their own account or any account in which they have a beneficial interest, any units of the REIT or any Debentures exchangeable or exercisable for or convertible into units of the REIT after the date hereof until the Closing Date without the written consent of TD Securities, not to be unreasonably withheld or delayed;
3.7 it will use its commercially reasonable efforts to achieve and maintain the REIT’s status in the Qualifying Jurisdictions as a reporting issuer, or its equivalent, not in default under the Securities Laws; and
3.8 it will ensure that, upon the issue thereof, the Debentures and the Debenture Units will be conditionally approved for listing on the Stock Exchange, subject only to compliance with standard listing conditions.
Appears in 1 contract
Samples: Underwriting Agreement
Covenants of the REIT. 3.1 The REIT covenants and agrees with the Underwriters that:
3.1.1 (a) the Offered Units will be duly and validly created, authorized and issued on the payment therefor and such Offered Units will have attributes corresponding in all material respects to the descriptions thereof in this Agreement and in the Preliminary Prospectus, the Prospectus and any Supplementary MaterialAmendment;
3.1.2 (b) it shall fulfill to the REIT satisfaction of the Underwriters all legal requirements to be fulfilled by it to enable the Offered Units to be offered for sale and sold to the public in Canada by or through the Selling Firms who comply with all applicable Securities Laws in each of the Qualifying Jurisdictions; such fulfillment shall have prepared include, without limiting the generality of the foregoing, compliance with all applicable Securities Laws including, without limitation, the preparation and filed filing of the Preliminary Prospectus in both the English and French languages in accordance form and substance satisfactory to the Underwriters in each of the Qualifying Jurisdictions, the preparation and filing of the Prospectus in both the English and French languages in such Qualifying Jurisdictions with such changes from the Preliminary Prospectus as the REIT and the Underwriters may approve, such approval to be evidenced by the signing of the Prospectus by the REIT and the Underwriters, and the obtaining of an NP 11-202 receipt therefor from the British Columbia Securities Commission as soon as possible after the filing but in any event on or before the Qualification Deadline, and the delivering of a copy thereof to the Underwriters and their counsel; and for greater certainty, the REIT will, as soon as possible following the execution of this Agreement, and, in any event, not later than 2:00 p.m. (Vancouver time) on December 9, 2016 (or such other time and/or date as the REIT and CIBC World Markets, on behalf of the Underwriters, may in writing agree) prepare and file the Preliminary Prospectus in form and substance satisfactory to the Underwriters in each of the Qualifying Jurisdictions with the Passport System with the Ontario Securities Commission in its capacity as the principal regulator Commissions under the Passport System Securities Laws and will use commercially reasonable efforts to obtain a an NP 11-202 receipt for the Preliminary Prospectus from the principal regulator on behalf of the Securities Commissions in each of the Qualifying Jurisdictions not later than 5:00 p.m. (Toronto time) therefor on May 6the date of such filing and deliver a copy thereof to the Underwriters and their counsel; and for greater certainty, 2014;
3.1.3 the REIT shall prepare and file the Prospectus in each of the Qualifying Jurisdictions with Securities Commissions under the Securities Laws, and will use its commercially reasonable efforts to obtain promptly satisfy or resolve all comments of the Final Receipt Securities Commissions regarding the Preliminary Prospectus and will, as soon as possible following the satisfaction or resolution of such comments, and, in any event, not later than 5:00 p.m. the Qualification Deadline (Toronto time) on May 13, 2014, or such later other time and/or date as may be agreed upon by the REIT and the Lead UnderwritersCIBC World Markets, on behalf of the Underwriters, acting reasonably, may in writing agree) prepare and will have taken all other commercially reasonable steps and proceedings that may be necessary file the Prospectus in order to qualify the Units for distribution in each of the Qualifying Jurisdictions by the Underwriters and other persons who are registered in a category permitting them to distribute the Units under the Securities Laws and who comply accordance with Securities LawsNP 11-202;
3.1.4 (c) until the completion of the distribution of the Offered Units, it shall allow and assist the Underwriters to participate fully in the preparation of the Preliminary Prospectus, the Prospectus and any Supplementary Material Amendment and shall allow the Underwriters to conduct all "“due diligence" ” investigations which the Underwriters may reasonably require to fulfill the Underwriters' ’ obligations as underwriters underwriters, to enable the Underwriters to avail themselves of a defence to any claim for misrepresentation in the Preliminary Prospectus, the Prospectus or any Amendment and to enable the Underwriters responsibly to execute any certificate required to be executed by the Underwriters in any such documentation. It shall be a condition precedent to the Underwriters’ execution of any certificate in the Preliminary Prospectus, the Prospectus or any Amendment that the Underwriters be satisfied, acting reasonably, as to the form and content of the document and the execution thereby of such certificate shall be conclusive evidence of such satisfaction;
3.1.1 it shall cause the Marketing Materials, if any, as approved by the REIT and the Lead Underwriters, to be filed with the Securities Commissions, in the manner contemplated by applicable Securities Laws, not later than the day on which such Marketing Materials are first provided to a potential investor in connection with the Offering. Any comparables (as defined in NI 41-101d) and all disclosure relating to such comparables shall be redacted from the Marketing Materials so filed;
3.1.2 it will comply with section 57 of the Securities Act (Ontario) and with the other comparable provisions of the other applicable Securities Laws and during the period from the date of signing the Preliminary Prospectus to the date of completion of distribution of the Offered Units, will promptly notify the Underwriters in writing of the full particulars of: (i) of any material change, actual, anticipated or, to the Knowledge of the REIT, or threatened, in the business, financial condition, assets, businessliabilities (contingent or otherwise), results of operations or financial condition prospects of the REIT (on a consolidated basis); (ii) any material fact which has arisen or has been discovered and would have been required to have been stated in any Offering Document had that fact arisen or been discovered on, or prior to, the date of any of the Offering Documents; or (iii) any change in any material fact contained or referred to in the Preliminary Prospectus, the Prospectus or in any Amendment, and of the Offering Documentsexistence of any material fact which is, whether any event or state of facts has occurred after the date of this Agreement, which, in any case, is or may be be, of such a nature as to render the Preliminary Prospectus, the Prospectus or any of the Offering Documents Amendment, untrue, false or misleading in any a material respect or result in a Misrepresentation in any of the Offering Documentsmisrepresentation. The REIT It shall, to the satisfaction of the Underwriters and their counsel, acting reasonably, promptly comply with all applicable filing and other requirements under the Securities Laws in the Qualifying Jurisdictions (and any other applicable securities laws) as a result of such change. The REIT It shall, in good faith, first discuss with the Lead Underwriters CIBC World Markets any change in circumstances (actual, proposed or, to within the REIT's ’s Knowledge, threatened) which is of such a nature that there is reasonable doubt whether notice need be given to the Underwriters pursuant to this paragraph 3.1.4 3.1(d) and, in any event, prior to making any filing referred to in this paragraph 3.13.1(d). For greater certainty but not so as to limit the generality of the foregoing, it is understood and agreed that, during the period from the date of signing the Preliminary Prospectus to the date of completion of the distribution of the Offered Units, if the Underwriters reasonably determine, after consultation with the REIT, that a material change or change in a material fact has occurred which makes untrue or misleading any statement of a material fact contained in the Preliminary Prospectus, the Prospectus or in any Amendment, or which may result in a misrepresentation, the REIT will:
(i) prepare and file promptly any Amendment which in its opinion, acting reasonably, may be necessary or advisable, after consultation with the Underwriters; and
(ii) contemporaneously with filing the Amendment under the Laws of the Qualifying Jurisdictions, deliver to the Underwriters:
(A) a copy of the Amendment, signed as required by the Securities Laws;
(B) a copy of all documents relating to the proposed distribution of the Offered Units and file them with the Amendment under the applicable Securities Laws; and
(C) such other documents as the Underwriters shall reasonably require; and
(e) it will ensure that, when issued, the Offered Units issuable hereunder will be conditionally approved for listing on the Exchange, subject only to compliance with the Standard Listing Conditions.
3.2 During the period commencing on the date hereof and ending on the date the Underwriters notify the REIT of the completion of the distribution of the Offered Units, the REIT will promptly inform the Underwriters of the full particulars of:
(a) any request of any Securities Commission for any amendment to the Preliminary Prospectus, the Prospectus or any Amendment or for any additional information in connection with the Offering;
(b) the issuance by any Securities Commission, the Exchange or any other Governmental Authority of any order to cease or suspend trading of any securities of the REIT or of the institution or threat of institution of any proceedings for that purpose; or
(c) any notice or other correspondence received by any of the REIT Entities from any Governmental Authority requesting information, a meeting or a hearing or commencing or threatening any investigation into any of the REIT Entities or their business that could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT (on a consolidated basis) or the completion of the Offering.
3.3 The REIT will use commercially reasonable efforts to promptly do, make, execute, deliver or cause to be done, made, executed or delivered, all such acts, documents and things as the Underwriters may reasonably require from time to time for the purpose of giving effect to the transactions contemplated by this Agreement, the Preliminary Prospectus and the Prospectus and take all such steps as may be reasonably within its power to implement to the full extent the provisions of this Agreement and the transactions contemplated thereby and the Preliminary Prospectus and the Prospectus.
3.4 The REIT will apply the net proceeds from the issue and sale of the Offered Units substantially in accordance with the disclosure set forth under the heading “Use of Proceeds” in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement
Covenants of the REIT. 3.1 The REIT covenants and agrees with the Underwriters that:
3.1.1 (a) the Offered Units will be duly and validly created, authorized and issued on the payment therefor and such Offered Units will have attributes corresponding in all material respects to the descriptions thereof in this Agreement and in the Preliminary Prospectus, the Prospectus and any Supplementary MaterialAmendment;
3.1.2 (b) it shall fulfill to the REIT satisfaction of the Underwriters all legal requirements to be fulfilled by it to enable the Offered Units to be offered for sale and sold to the public in Canada by or through the Selling Firms who comply with all applicable Securities Laws in each of the Qualifying Jurisdictions; such fulfillment shall have prepared include, without limiting the generality of the foregoing, compliance with all applicable Securities Laws including, without limitation, the preparation and filed filing of the Preliminary Prospectus in both the English and French languages in accordance form and substance satisfactory to the Underwriters in each of the Qualifying Jurisdictions, the preparation and filing of the Prospectus in both the English and French languages in such Qualifying Jurisdictions with such changes from the Preliminary Prospectus as the REIT and the Underwriters may approve, such approval to be evidenced by the signing of the Prospectus by the REIT and the Underwriters, and the obtaining of an NP 11-202 receipt therefor from the British Columbia Securities Commission as soon as possible after the filing but in any event on or before the Qualification Deadline, and the delivering of a copy thereof to the Underwriters and their counsel; and for greater certainty, the REIT will, as soon as possible following the execution of this Agreement, and, in any event, not later than 2:00 p.m. (Vancouver time) on July 11, 2016 (or such other time and/or date as the REIT and the Lead Underwriter, on behalf of the Underwriters, may in writing agree) prepare and file the Preliminary Prospectus in form and substance satisfactory to the Underwriters in each of the Qualifying Jurisdictions with the Passport System with the Ontario Securities Commission in its capacity as the principal regulator Commissions under the Passport System Securities Laws and will use commercially reasonable efforts to obtain a an NP 11-202 receipt for the Preliminary Prospectus from the principal regulator on behalf of the Securities Commissions in each of the Qualifying Jurisdictions not later than 5:00 p.m. (Toronto time) therefor on May 6the date of such filing and deliver a copy thereof to the Underwriters and their counsel; and for greater certainty, 2014;
3.1.3 the REIT shall prepare and file the Prospectus in each of the Qualifying Jurisdictions with Securities Commissions under the Securities Laws, and will use its commercially reasonable efforts to obtain promptly satisfy or resolve all comments of the Final Receipt Securities Commissions regarding the Preliminary Prospectus and will, as soon as possible following the satisfaction or resolution of such comments, and, in any event, not later than 5:00 p.m. the Qualification Deadline (Toronto time) on May 13, 2014, or such later other time and/or date as may be agreed upon by the REIT and the Lead UnderwritersUnderwriter, on behalf of the Underwriters, acting reasonably, may in writing agree) prepare and will have taken all other commercially reasonable steps and proceedings that may be necessary file the Prospectus in order to qualify the Units for distribution in each of the Qualifying Jurisdictions by the Underwriters and other persons who are registered in a category permitting them to distribute the Units under the Securities Laws and who comply accordance with Securities LawsNP 11-202;
3.1.4 (c) until the completion of the distribution of the Offered Units, it shall allow and assist the Underwriters to participate fully in the preparation of the Preliminary Prospectus, the Prospectus and any Supplementary Material Amendment and shall allow the Underwriters to conduct all "“due diligence" ” investigations which the Underwriters may reasonably require to fulfill the Underwriters' ’ obligations as underwriters underwriters, to enable the Underwriters to avail themselves of a defence to any claim for misrepresentation in the Preliminary Prospectus, the Prospectus or any Amendment and to enable the Underwriters responsibly to execute any certificate required to be executed by the Underwriters in any such documentation. It shall be a condition precedent to the Underwriters’ execution of any certificate in the Preliminary Prospectus, the Prospectus or any Amendment that the Underwriters be satisfied, acting reasonably, as to the form and content of the document and the execution thereby of such certificate shall be conclusive evidence of such satisfaction;
3.1.1 it shall cause the Marketing Materials, if any, as approved by the REIT and the Lead Underwriters, to be filed with the Securities Commissions, in the manner contemplated by applicable Securities Laws, not later than the day on which such Marketing Materials are first provided to a potential investor in connection with the Offering. Any comparables (as defined in NI 41-101d) and all disclosure relating to such comparables shall be redacted from the Marketing Materials so filed;
3.1.2 it will comply with section 57 of the Securities Act (Ontario) and with the other comparable provisions of the other applicable Securities Laws and during the period from the date of signing the Preliminary Prospectus to the date of completion of distribution of the Offered Units, will promptly notify the Underwriters in writing of the full particulars of: (i) of any material change, actual, anticipated or, to the Knowledge of the REIT, or threatened, in the business, financial condition, assets, businessliabilities (contingent or otherwise), results of operations or financial condition prospects of the REIT (on a consolidated basis); (ii) any material fact which has arisen or has been discovered and would have been required to have been stated in any Offering Document had that fact arisen or been discovered on, or prior to, the date of any of the Offering Documents; or (iii) any change in any material fact contained or referred to in the Preliminary Prospectus, the Prospectus or in any Amendment, and of the Offering Documentsexistence of any material fact which is, whether any event or state of facts has occurred after the date of this Agreement, which, in any case, is or may be be, of such a nature as to render the Preliminary Prospectus, the Prospectus or any of the Offering Documents Amendment, untrue, false or misleading in any a material respect or result in a Misrepresentation in any of the Offering Documentsmisrepresentation. The REIT It shall, to the satisfaction of the Underwriters and their counsel, acting reasonably, promptly comply with all applicable filing and other requirements under the Securities Laws in the Qualifying Jurisdictions (and any other applicable securities laws) as a result of such change. The REIT It shall, in good faith, first discuss with the Lead Underwriters Underwriter any change in circumstances (actual, proposed or, to within the REIT's ’s Knowledge, threatened) which is of such a nature that there is reasonable doubt whether notice need be given to the Underwriters pursuant to this paragraph 3.1.4 3.1(d) and, in any event, prior to making any filing referred to in this paragraph 3.13.1(d). For greater certainty but not so as to limit the generality of the foregoing, it is understood and agreed that, during the period from the date of signing the Preliminary Prospectus to the date of completion of the distribution of the Offered Units, if the Underwriters reasonably determine, after consultation with the REIT, that a material change or change in a material fact has occurred which makes untrue or misleading any statement of a material fact contained in the Preliminary Prospectus, the Prospectus or in any Amendment, or which may result in a misrepresentation, the REIT will:
(i) prepare and file promptly any Amendment which in its opinion, acting reasonably, may be necessary or advisable, after consultation with the Underwriters; and
(ii) contemporaneously with filing the Amendment under the Laws of the Qualifying Jurisdictions, deliver to the Underwriters:
(A) a copy of the Amendment, signed as required by the Securities Laws;
(B) a copy of all documents relating to the proposed distribution of the Offered Units and file them with the Amendment under the applicable Securities Laws; and
(C) such other documents as the Underwriters shall reasonably require; and
(e) it will ensure that, when issued, the Offered Units issuable hereunder will be conditionally approved for listing on the Exchange, subject only to compliance with the Standard Listing Conditions.
3.2 During the period commencing on the date hereof and ending on the date the Underwriters notify the REIT of the completion of the distribution of the Offered Units, the REIT will promptly inform the Underwriters of the full particulars of:
(a) any request of any Securities Commission for any amendment to the Preliminary Prospectus, the Prospectus or any Amendment or for any additional information in connection with the Offering;
(b) the issuance by any Securities Commission, the Exchange or any other Governmental Authority of any order to cease or suspend trading of any securities of the REIT or of the institution or threat of institution of any proceedings for that purpose; or
(c) any notice or other correspondence received by any of the REIT Entities from any Governmental Authority requesting information, a meeting or a hearing or commencing or threatening any investigation into any of the REIT Entities or their business that could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT (on a consolidated basis) or the completion of the Offering.
3.3 The REIT will use commercially reasonable efforts to promptly do, make, execute, deliver or cause to be done, made, executed or delivered, all such acts, documents and things as the Underwriters may reasonably require from time to time for the purpose of giving effect to the transactions contemplated by this Agreement, the Preliminary Prospectus and the Prospectus and take all such steps as may be reasonably within its power to implement to the full extent the provisions of this Agreement and the transactions contemplated thereby and the Preliminary Prospectus and the Prospectus.
3.4 The REIT will apply the net proceeds from the issue and sale of the Offered Units substantially in accordance with the disclosure set forth under the heading “Use of Proceeds” in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement
Covenants of the REIT. 3.1 The REIT covenants and agrees with each of the Underwriters thatthat the REIT:
3.1.1 (a) will advise the Units will be duly and validly created, authorized and issued on the payment therefor and such Units will have attributes corresponding in all material respects to the descriptions thereof in this Agreement and in Underwriters promptly after receiving notice that the Preliminary Prospectus, the Prospectus and any Supplementary MaterialMaterial have been filed and the Preliminary Receipt or the Final Receipt, as applicable, has been obtained therefor and will provide evidence satisfactory to the Underwriters of each such filing and the issuance of such Preliminary Receipt or Final Receipt, as applicable;
3.1.2 the REIT shall have prepared and filed the Preliminary Prospectus in both the English and French languages in accordance with the Passport System with the Ontario Securities Commission in its capacity as the principal regulator under the Passport System and (b) will use commercially reasonable efforts to obtain a receipt for the Preliminary Prospectus from the principal regulator on behalf of the Securities Commissions in each of the Qualifying Jurisdictions not later than 5:00 p.m. (Toronto time) on May 6, 2014;
3.1.3 the REIT shall prepare and file the Prospectus in each of the Qualifying Jurisdictions with Securities Commissions under the Securities Laws, and will use commercially reasonable efforts to obtain the Final Receipt not later than 5:00 p.m. (Toronto time) on May 13, 2014, or such later time as may be agreed upon by the REIT and the Lead Underwriters, on behalf of the Underwriters, acting reasonably, and will have taken all other commercially reasonable steps and proceedings that may be necessary in order to qualify the Units for distribution in each of the Qualifying Jurisdictions by advise the Underwriters and other persons who are registered in a category permitting them to distribute the Units under the Securities Laws and who comply with Securities Laws;promptly after receiving notice or obtaining knowledge of:
3.1.4 until the completion of the distribution of the Units, it shall allow and assist the Underwriters to participate fully in the preparation of the Prospectus and any Supplementary Material and shall allow the Underwriters to conduct all "due diligence" investigations which the Underwriters may reasonably require to fulfill the Underwriters' obligations as underwriters and to enable the Underwriters responsibly to execute any certificate required to be executed by the Underwriters in any such documentation;
3.1.1 it shall cause the Marketing Materials, if any, as approved by the REIT and the Lead Underwriters, to be filed with the Securities Commissions, in the manner contemplated by applicable Securities Laws, not later than the day on which such Marketing Materials are first provided to a potential investor in connection with the Offering. Any comparables (as defined in NI 41-101) and all disclosure relating to such comparables shall be redacted from the Marketing Materials so filed;
3.1.2 it will comply with section 57 of the Securities Act (Ontario) and with the comparable provisions of the other applicable Securities Laws and during the period from the date of signing the Preliminary Prospectus to the date of completion of distribution of the Units, will promptly notify the Underwriters in writing of the full particulars of: (i) the issuance by any material change, actual, anticipated or, to Securities Commission of any order suspending or preventing the Knowledge use of the REIT, threatened, in the assets, business, operations or financial condition of the REIT (on a consolidated basis); any Offering Document;
(ii) any material fact which has arisen or has been discovered and would have been required to have been stated in any Offering Document had that fact arisen or been discovered on, or prior to, the date of any suspension of the Offering Documents; qualification of the Subscription Receipts for offering or (iii) any change in any material fact contained or referred to sale in any of the Offering DocumentsQualifying Jurisdictions;
(iii) the institution, whether threatening or contemplation of any event or state of facts has occurred after the date of this Agreement, which, in any case, is or may be of such a nature as to render proceeding for any of the Offering Documents untruepurposes described in (i) or (ii); or
(iv) any request made by any Securities Commission to amend or supplement the Preliminary Prospectus or the Prospectus or for additional information, false and it will use its reasonable commercial efforts to prevent the issuance of any such order or misleading in request and, if any material respect such order or result in a Misrepresentation in any request is issued, to obtain the withdrawal of the Offering Documents. The REIT shall, such order or request as promptly as possible;
(c) shall fulfill to the satisfaction of the Underwriters all legal requirements to be fulfilled by it to enable the Subscription Receipts to be offered for sale and sold
(i) to the public in Canada by or through the Selling Group who comply with all applicable Securities Laws in each of the Qualifying Jurisdictions, and (ii) in the United States in transactions exempt from the registration requirements of the U.S. Securities Act and applicable state securities laws to Qualified Institutional Buyers in accordance with Rule 144A (as defined in Schedule A hereto);
(d) will apply, or cause to be applied, the net proceeds from the Offering as described in the Prospectus under the heading "Use of Proceeds";
(e) will not agree, and will cause the other REIT Entities not to agree, to (i) any changes to the terms of the Transaction, or the Transaction Agreement, the Environmental Indemnity Agreement, the Co-Ownership Agreements, the Lease Amendments or the Sobeys Leases, or (ii) a waiver of any condition to the closing of the Transaction without the consent of the Underwriters, which consent may not be unreasonably withheld;
(f) will use reasonable commercial efforts to promptly do, make, execute, deliver or cause to be done, made, executed or delivered, all such acts, documents and things as the Underwriters may reasonably require from time to time for the purpose of giving effect to this Agreement and the Related Agreements and the transactions contemplated by the Prospectus and take all such steps as may be reasonably within its power to implement to the full extent the provisions of this Agreement and the Related Agreements and the transactions contemplated by the Prospectus, including, without limitation, obtaining unitholder approval of the Transaction prior to the Transaction Closing Date in compliance with the rules and policies of the TSX;
(g) shall cause to be delivered to the Underwriters, at the Time of Closing, a reliance letter from Stantec, dated the Closing Date, in form and substance satisfactory to the Underwriters and their counsel, acting reasonablyaddressed to the Underwriters, promptly comply permitting such parties to rely on the environmental reports and property condition reports prepared by Stantec with all applicable filing and other requirements respect to the properties acquired by the REIT Entities that are referred to in the Preliminary Prospectus under the Securities Laws in the Qualifying Jurisdictions section entitled "Recent Developments";
(and any other applicable securities lawsh) as a result of such change. The REIT shall, in good faith, first discuss with the Lead Underwriters any change in circumstances (actual, proposed or, shall cause to the REIT's Knowledge, threatened) which is of such a nature that there is reasonable doubt whether notice need be given delivered to the Underwriters pursuant a reliance letter from Stantec regarding each environmental report and property condition report prepared by Stantec in respect of any Acquisition Property and delivered to this paragraph 3.1.4 andthe REIT prior to the Transaction Closing Time, in form and substance satisfactory to the Underwriters and their counsel, addressed to the Underwriters, permitting such parties to rely on such environmental report or property condition report; and
(i) will not declare any event, cash distributions to holders of Units with a record date prior to making any filing referred to in this paragraph 3.1the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement
Covenants of the REIT. 3.1 The REIT covenants and agrees with the Underwriters that:
3.1.1 (a) the Units Offered Securities will be duly and validly created, authorized and issued on the payment therefor and such Units Offered Securities will have attributes corresponding in all material respects to the descriptions thereof in this Agreement and in the Preliminary Prospectus, the Supplemented Prospectus and any Supplementary MaterialAmendment;
3.1.2 (b) at the time of their issuance in accordance with the terms of the Trust Indenture, the Underlying Units will be duly and validly authorized and issued and such Underlying Units have attributes corresponding in all material respects to the descriptions thereof in this Agreement and in the Supplemented Prospectus and any Amendment;
(c) the REIT shall have has prepared and filed the Preliminary Base Shelf Prospectus and it shall fulfill, to the satisfaction of the Underwriters, all legal requirements to be fulfilled by it to enable the Offered Securities to be offered for sale and sold to the public in Canada by or through the Selling Firms who comply with all applicable Securities Laws in each of the Qualifying Jurisdictions; such fulfillment shall include, without limiting the generality of the foregoing, compliance with all applicable Securities Laws including, without limitation, the preparation and filing of the Prospectus Supplement in both the English and French languages in accordance with form and substance satisfactory to the Passport System with the Ontario Securities Commission in its capacity as the principal regulator under the Passport System and will use commercially reasonable efforts to obtain a receipt for the Preliminary Prospectus from the principal regulator on behalf of the Securities Commissions Underwriters in each of the Qualifying Jurisdictions Jurisdictions, such approval to be evidenced by the signing of the Prospectus Supplement by the REIT and the Underwriters; and for greater certainty, the REIT will, as soon as possible following the execution of this Agreement, and, in any event, not later than 5:00 8:00 p.m. (Toronto Vancouver time) on May 6June 2, 2014;
3.1.3 2017 (or such other time and/or date as the REIT shall and CIBC World Markets, on behalf of the Underwriters, may in writing agree) prepare and file the Prospectus Supplement in form and substance satisfactory to the Underwriters in each of the Qualifying Jurisdictions with the Securities Commissions under the Securities Laws, and will use commercially reasonable efforts to obtain the Final Receipt not later than 5:00 p.m. (Toronto time) on May 13, 2014, or such later time as may be agreed upon by the REIT and the Lead Underwriters, on behalf of the Underwriters, acting reasonably, and will have taken all other commercially reasonable steps and proceedings that may be necessary in order to qualify the Units for distribution in each of the Qualifying Jurisdictions by the Underwriters and other persons who are registered in a category permitting them to distribute the Units under the Securities Laws and who comply with Securities Laws;
3.1.4 (d) until the completion of the distribution of the UnitsOffered Securities, it shall allow and assist the Underwriters to participate fully in the preparation of the Prospectus Supplement and any Supplementary Material Amendment, the U.S. Private Placement Memorandum and any amendment to the U.S. Private Placement Memorandum, and shall allow the Underwriters to conduct all "“due diligence" ” investigations which the Underwriters may reasonably require to fulfill the Underwriters' ’ obligations as underwriters underwriters, to enable the Underwriters to avail themselves of a defence to any claim for misrepresentation in the Supplemented Prospectus, any Amendment, the U.S. Private Placement Memorandum or any amendment to the U.S. Private Placement Memorandum, and to enable the Underwriters responsibly to execute any certificate required to be executed by the Underwriters in any such documentation. It shall be a condition precedent to the Underwriters’ execution of any certificate in the Prospectus Supplement or any Amendment that the Underwriters be satisfied, acting reasonably, as to the form and content of the document and the execution thereby of such certificate shall be conclusive evidence of such satisfaction;
3.1.1 it shall cause the Marketing Materials, if any, as approved by the REIT and the Lead Underwriters, to be filed with the Securities Commissions, in the manner contemplated by applicable Securities Laws, not later than the day on which such Marketing Materials are first provided to a potential investor in connection with the Offering. Any comparables (as defined in NI 41-101e) and all disclosure relating to such comparables shall be redacted from the Marketing Materials so filed;
3.1.2 it will comply with section 57 of the Securities Act (Ontario) and with the other comparable provisions of the other applicable Securities Laws and during the period from the date of signing the Preliminary Prospectus Supplement by the Underwriters to the date of completion of distribution of the UnitsOffered Securities, will promptly notify the Underwriters in writing of the full particulars of: (i) of any material change, actual, anticipated or, to the Knowledge of the REIT, or threatened, in the business, financial condition, assets, businessliabilities (contingent or otherwise), results of operations or financial condition prospects of the REIT (on a consolidated basis); (ii) any material fact which has arisen or has been discovered and would have been required to have been stated in any Offering Document had that fact arisen or been discovered onthe Eastern Seaboard Properties, or prior to, the date of any of the Offering Documents; or (iii) any change in any material fact contained or referred to in the Supplemented Prospectus, any Amendment, the U.S. Private Placement Memorandum or any amendment to the U.S. Private Placement Memorandum, and of the Offering Documentsexistence of any material fact which is, whether any event or state of facts has occurred after the date of this Agreement, which, in any case, is or may be be, of such a nature as to render the Supplemented Prospectus, any of Amendment, the Offering Documents U.S. Private Placement Memorandum or any amendment to the U.S. Private Placement Memorandum, untrue, false or misleading in any a material respect or result in a Misrepresentation in any of the Offering Documentsmisrepresentation. The REIT It shall, to the satisfaction of the Underwriters and their counsel, acting reasonably, promptly comply with all applicable filing and other requirements under the Securities Laws in the Qualifying Jurisdictions (and any other applicable securities laws) as a result of such change. The REIT It shall, in good faith, first discuss with the Lead Underwriters CIBC World Markets any change in circumstances (actual, proposed or, to within the REIT's ’s Knowledge, threatened) which is of such a nature that there is reasonable doubt whether notice need be given to the Underwriters pursuant to this paragraph 3.1.4 3.1(e) and, in any event, prior to making any filing referred to in this paragraph 3.13.1(e). For greater certainty but not so as to limit the generality of the foregoing, it is understood and agreed that, during the period from the date of signing the Prospectus Supplement by the Underwriters to the date of completion of the distribution of the Offered Securities, if the Underwriters reasonably determine, after consultation with the REIT, that a material change or change in a material fact has occurred which makes untrue or misleading any statement of a material fact contained in the Supplemented Prospectus, in any Amendment, the U.S. Private Placement Memorandum or any amendment to the U.S. Private Placement Memorandum, or which may result in a misrepresentation, the REIT will:
(i) prepare and file promptly any Amendment or any amendment to the U.S. Private Placement Memorandum which in its opinion, acting reasonably, may be necessary or advisable, after consultation with the Underwriters; and
(ii) contemporaneously with filing the Amendment or any amendment to the U.S. Private Placement Memorandum under the Laws of the Qualifying Jurisdictions, deliver to the Underwriters:
(A) a copy of the Amendment or any amendment to the U.S. Private Placement Memorandum, signed as required by the Securities Laws;
(B) a copy of all documents relating to the proposed distribution of the Offered Securities and file them with the Amendment or any amendment to the U.S. Private Placement Memorandum under the applicable Securities Laws; and
(C) such other documents as the Underwriters shall reasonably require; and
(f) it will ensure that, when issued, the Offered Securities and Underlying Units issuable hereunder will be conditionally approved for listing on the Exchange, subject only to compliance with the Standard Listing Conditions.
3.2 During the period commencing on the date hereof and ending on the date the Underwriters notify the REIT of the completion of the distribution of the Offered Securities, the REIT will promptly inform the Underwriters of the full particulars of:
(a) any request of any Securities Commission for any amendment to the Supplemented Prospectus or any Amendment or for any additional information in connection with the Offering;
(b) the issuance by any Securities Commission, the Exchange or any other Governmental Authority of any order to cease or suspend trading of any securities of the REIT or of the institution or threat of institution of any proceedings for that purpose; or
(c) any notice or other correspondence received by any of the REIT Entities from any Governmental Authority requesting information, a meeting or a hearing or commencing or threatening any investigation into any of the REIT Entities or their business that could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT (on a consolidated basis) or the completion of the Offering.
3.3 The REIT agrees that it will not agree, and will cause the other REIT Entities not to agree, to (A) any change to the aggregate purchase price for the Eastern Seaboard Properties as set forth in the Eastern Seaboard PSA, (B) any material changes to the assets to be acquired or liabilities to be assumed by the REIT, directly or indirectly, pursuant to the Eastern Seaboard PSA, or (C) any material changes to the terms of the acquisition of the Eastern Seaboard Portfolio to the extent such terms are described in the Supplemented Prospectus or any Amendment, in each case, without the consent of CIBC World Markets, on behalf of the Underwriters, which consent may not be unreasonably withheld or delayed.
3.4 The REIT will use commercially reasonable efforts to promptly do, make, execute, deliver or cause to be done, made, executed or delivered, all such acts, documents and things as the Underwriters may reasonably require from time to time for the purpose of giving effect to the transactions contemplated by this Agreement, the Trust Indenture, the Eastern Seaboard PSA, the Supplemented Prospectus and the U.S. Private Placement Memorandum and take all such steps as may be reasonably within its power to implement to the full extent the provisions of this Agreement and the transactions contemplated thereby, by the Supplemented Prospectus and the U.S. Private Placement Memorandum.
3.5 The REIT will apply the net proceeds from the issue and sale of the Offered Securities substantially in accordance with the disclosure set forth under the heading “Use of Proceeds” in the Prospectus Supplement.
Appears in 1 contract
Samples: Underwriting Agreement
