EXHIBIT 7.2
EXECUTION COPY
INTRAWEST CORPORATION
6.875% SENIOR NOTES DUE OCTOBER 15, 2009
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
October 6, 2004
Deutsche Bank Securities Limited
Scotia Capital Inc.
BMO Xxxxxxx Xxxxx Inc.
RBC Dominion Securities Inc.
TD Securities Inc.
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Intrawest Corporation, a Canadian corporation (the "Company"), proposes
to issue and sell to the Initial Purchasers (as defined herein) upon the terms
set forth in the Purchase Agreement (as defined herein) its 6.875% Senior Notes
due October 15, 2009. As an inducement to the Initial Purchasers to enter into
the Purchase Agreement and in satisfaction of a condition to the obligations of
the Initial Purchasers thereunder, the Company agrees with the Initial
Purchasers for the benefit of holders (as defined herein) from time to time of
the Registrable Securities (as defined herein) as follows:
1. Certain Definitions. For purposes of this Exchange and Registration
Rights Agreement, the following terms shall have the following
respective meanings:
"Base Interest" shall mean the interest that would otherwise accrue on
the Securities under the terms thereof and the Indenture, without giving effect
to the provisions of this Agreement.
The term "broker-dealer" shall mean any broker or dealer registered
with the Commission under the Exchange Act.
"Canadian Securities Laws" shall have the meaning assigned thereto in
Section 2(a) hereof.
"Closing Date" shall mean the date on which the Securities are
initially issued.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.
"Effective Time," in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective, (ii) a Shelf Registration, shall mean the
time and date as of which the Commission declares the Shelf Registration
Statement effective or as of which the Shelf Registration Statement otherwise
becomes effective and (iii) an Exchange Offer Prospectus, shall mean the time
and date of the final receipts obtained from the securities commissions of the
Relevant Provinces for such Exchange Offer Prospectus.
"Electing Holder" shall mean any holder of Registrable Securities that
has returned a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Offer Prospectus" shall have the meaning assigned thereto in
Section 2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(c) hereof.
"Exchange Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
The term "holder" shall mean each of the Initial Purchasers and other
persons who acquire Registrable Securities from time to time (including any
successors or assigns), in each case for so long as such person owns any
Registrable Securities.
"Indenture" shall mean the indenture, dated as of October 6, 2004, (the
"Indenture") between the Company and JPMorgan Chase Bank, as U.S. Trustee (the
"U.S. Trustee"), and CIBC Mellon Trust Company, as Canadian Trustee (the
"Canadian Trustee", and together with the U.S. Trustee each a "Trustee", and,
collectively, the "Trustees") as the same shall be amended from time to time.
"Initial Purchasers" shall mean the Initial Purchasers named in
Schedule I to the Purchase Agreement.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
The term "person" shall mean a corporation, association, partnership,
organization, business, individual, government or political subdivision thereof
or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of
September 22, 2004, between the Initial Purchasers and the Company relating to
the Securities.
"Registrable Securities" shall mean the Securities; provided, however,
that a Security shall cease to be a Registrable Security when (i) in the
circumstances contemplated by Section 2(a) hereof, the Security has been
exchanged for an Exchange Security in an Exchange Offer as contemplated in
Section 2(a) hereof (provided that any Exchange Security that, pursuant to the
last two sentences of Section 2(a), is included in a prospectus for use in
connection with resales by broker-dealers shall be deemed to be a Registrable
Security with respect to Sections 5, 6 and 9 until resale of such Registrable
Security has been effected within the 180-day period referred to in Section
2(a)); (ii) in the circumstances contemplated by Section 2(b) hereof, a Shelf
Registration Statement registering such Security under the Securities Act has
been declared or becomes effective and such Security has been sold or otherwise
transferred by the holder thereof pursuant to and in a manner contemplated by
such effective Shelf Registration Statement; (iii) such Security is sold
pursuant to Rule 144 under circumstances in which any legend borne by such
Security relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is
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removed by the Company or pursuant to the Indenture; (iv) such Security is
eligible to be sold pursuant to paragraph (k) of Rule 144; or (v) such Security
shall cease to be outstanding.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Relevant Provinces" means the provinces of Canada in which the
Securities are sold.
"Resale Period" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of the
Company within the meaning of Rule 405, (ii) a holder who acquires Exchange
Securities outside the ordinary course of such holder's business, (iii) a holder
who has arrangements or understandings with any person to participate in the
Exchange Offer for the purpose of distributing Exchange Securities and (iv) a
holder that is a broker-dealer, but only with respect to Exchange Securities
received by such broker-dealer pursuant to an Exchange Offer in exchange for
Registrable Securities acquired by the broker-dealer directly from the Company.
"Rule 144," "Rule 405" and "Rule 415" shall mean, in each case, such
rule promulgated under the Securities Act (or any successor provision), as the
same shall be amended from time to time.
"Securities" shall mean, collectively, the 6.875% Senior Notes due
October 15, 2009 of the Company to be issued and sold to the Initial Purchasers,
and securities issued in exchange therefor or in lieu thereof pursuant to the
Indenture.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in Section
2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned thereto
in Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in Section
2(c) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision.
2. Registration Under the Securities Act and Qualification under
Canadian Securities Laws.
(a) Except as set forth in Section 2(b) below, the Company agrees
to file under the Securities Act, as soon as practicable, but
no later than 60 days after the Closing Date, a registration
statement relating to an offer to exchange (such registration
statement, the "Exchange Registration Statement", and such
offer, the "Exchange Offer") any and all of the Securities for
a like aggregate principal amount of debt securities issued by
the Company,
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which debt securities are substantially identical to the
Securities (and are entitled to the benefits of a trust
indenture which is substantially identical to the Indenture or
is the Indenture and which has been qualified under the Trust
Indenture Act), except that they have been registered pursuant
to an effective registration statement under the Securities
Act and qualified under an Exchange Offer Prospectus (as
defined below) for which final receipts from the securities
commissions of the Relevant Provinces have been obtained and
do not contain provisions for the additional interest
contemplated in Section 2(c) below (such new debt securities
hereinafter called "Exchange Securities"). The Company agrees
to use its best efforts to cause the Exchange Registration
Statement to become effective under the Securities Act as soon
as practicable, but no later than 180 days after the Closing
Date. The Exchange Offer will be registered under the
Securities Act on the appropriate form and will comply with
all applicable tender offer rules and regulations under the
Exchange Act. The Company further agrees to use its best
efforts to commence and complete the Exchange Offer promptly,
but no later than 45 days after such registration statement
has become effective, hold the Exchange Offer open for at
least 30 days and exchange Exchange Securities for all
Registrable Securities that have been properly tendered and
not withdrawn on or prior to the expiration of the Exchange
Offer.
In addition, the Company agrees to file, as soon as
practicable, but no later than 60 days after the Closing Date,
with the securities commissions of the Relevant Provinces a
short form prospectus (the "Exchange Offer Prospectus")
qualifying the distribution of the Exchange Securities
issuable in connection with the Exchange Offer in the Relevant
Provinces. The Company agrees to use its best efforts to
obtain final receipts for the Exchange Offer Prospectus from
the securities commissions of the Relevant Provinces, as soon
as practicable, but no later than 180 days after the Closing
Date. The Exchange Offer in the Relevant Provinces will comply
with all applicable statutes, rules and regulations of, or
applicable in, the Relevant Provinces ("Canadian Securities
Laws"). The Company further agrees to use its best efforts to
commence and complete the Exchange Offer in the Relevant
Provinces promptly, but no later than 45 days after final
receipts have been obtained for the Exchange Offer Prospectus,
hold the Exchange Offer in the Relevant Provinces open for at
least 30 days, and exchange Exchange Securities for all
Securities that have been properly tendered and not withdrawn
on or prior to the expiration of the Exchange Offer in the
Relevant Provinces.
The Exchange Offer will be deemed to have been "completed"
only if the debt securities received by holders other than
Restricted Holders in the Exchange Offer for Registrable
Securities are, upon receipt, transferable by each such holder
without restriction under the Securities Act, the Exchange Act
and the Canadian Securities Laws and without material
restrictions under the blue sky or securities laws of a
substantial majority of the States of the United States of
America.
The Exchange Offer shall be deemed to have been completed upon
the earlier to occur of (i) the Company having exchanged the
Exchange Securities for all outstanding Registrable Securities
pursuant to the Exchange Offer and (ii) the Company having
exchanged, pursuant to the Exchange Offer, Exchange Securities
for all Registrable Securities that have been properly
tendered and not withdrawn before the expiration of the
Exchange Offer, which shall be on a date that is at least 30
days following the commencement of the Exchange Offer. The
Company agrees (x) to include in the Exchange Registration
Statement a prospectus for use in any resales by any holder of
Exchange Securities that is a broker-dealer and (y) to keep
such Exchange Registration
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Statement effective and the Exchange Offer Prospectus
qualified for a period (the "Resale Period") beginning when
Exchange Securities are first issued in the Exchange Offer and
ending upon the earlier of the expiration of the 180th day
after the Exchange Offer has been completed or such time as
such broker-dealers no longer own any Registrable Securities.
With respect to such Exchange Registration Statement and the
Exchange Offer Prospectus, such holders shall have the benefit
of the rights of indemnification and contribution set forth in
Sections 6(a), (c), (d) and (e) hereof.
(b) If (i) on or prior to the time the Exchange Offer is completed
existing Commission interpretations are changed such that the
debt securities received by holders other than Restricted
Holders in the Exchange Offer for Registrable Securities are
not or would not be, upon receipt, transferable by each such
holder without restriction under the Securities Act, (ii) the
Exchange Offer has not been completed within 225 days
following the Closing Date or (iii) the Exchange Offer is not
available to any holder of the Securities, the Company shall,
in lieu of (or, in the case of clause (iii), in addition to)
conducting the Exchange Offer contemplated by Section 2(a),
file under the Securities Act as soon as practicable, but no
later than the later of 30 days after the time such obligation
to file arises, a "shelf" registration statement providing for
the registration of, and the sale on a continuous or delayed
basis by the holders of, all of the Registrable Securities,
pursuant to Rule 415 or any similar rule that may be adopted
by the Commission (such filing, the "Shelf Registration" and
such registration statement, the "Shelf Registration
Statement"). The Company agrees to use its best efforts (x) to
cause the Shelf Registration Statement to become or be
declared effective no later than 120 days after such Shelf
Registration Statement is filed and to keep such Shelf
Registration Statement continuously effective for a period
ending on the earlier of the second anniversary of the
Effective Time or such time as there are no longer any
Registrable Securities outstanding, provided, however, that no
holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement or to use
the prospectus forming a part thereof for resales of
Registrable Securities unless such holder is an Electing
Holder, and (y) after the Effective Time of the Shelf
Registration Statement, promptly upon the request of any
holder of Registrable Securities that is not then an Electing
Holder, to take any action reasonably necessary to enable such
holder to use the prospectus forming a part thereof for
resales of Registrable Securities, including, without
limitation, any action necessary to identify such holder as a
selling securityholder in the Shelf Registration Statement,
provided, however, that nothing in this Clause (y) shall
relieve any such holder of the obligation to return a
completed and signed Notice and Questionnaire to the Company
in accordance with Section 3(d)(iii) hereof. The Company
further agrees to supplement or make amendments to the Shelf
Registration Statement, as and when required by the rules,
regulations or instructions applicable to the registration
form used by the Company for such Shelf Registration Statement
or by the Securities Act or rules and regulations thereunder
for shelf registration, and the Company agrees to furnish to
each Electing Holder copies of any such supplement or
amendment prior to its being used or promptly following its
filing with the Commission.
(c) In the event that (i) the Company has not filed the Exchange
Registration Statement, Shelf Registration Statement or the
Exchange Offer Prospectus on or before the date on which such
registration statement or prospectus is required to be filed
pursuant to Section 2(a) or 2(b), respectively, or (ii) such
Exchange Registration Statement, Shelf Registration Statement
or Exchange Offer Prospectus has not become effective or been
declared effective by the Commission or final receipts have
not been obtained from the securities commissions of the
Relevant Provinces on or before the date on which such
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registration statement is required to become or be declared
effective or final receipts are required to have been obtained
for such prospectus pursuant to Section 2(a) or 2(b),
respectively, or (iii) the Exchange Offer has not been
completed within 45 days after the initial effective date of
the Exchange Registration Statement or the date final receipts
are obtained for the Exchange Offer Prospectus relating to the
Exchange Offer (if the Exchange Offer is then required to be
made) or (iv) any Exchange Registration Statement or Shelf
Registration Statement required by Section 2(a) or 2(b) hereof
is filed and declared effective but shall thereafter either be
withdrawn by the Company or shall become subject to an
effective stop order issued pursuant to Section 8(d) of the
Securities Act suspending the effectiveness of such
registration statement (except as specifically permitted
herein) without being succeeded immediately by an additional
registration statement filed and declared effective, or such
final receipts in respect of the Exchange Offer Prospectus be
rescinded (each such event referred to in clauses (i) through
(iv), a "Registration Default" and each period during which a
Registration Default has occurred and is continuing, a
"Registration Default Period"), then, as liquidated damages
for such Registration Default, subject to the provisions of
Section 9(b), special interest ("Special Interest"), in
addition to the Base Interest, shall accrue at a per annum
rate of 0.5% for the first 90 days of the Registration Default
Period, and at a per annum rate of 1.0% thereafter for the
remaining portion of the Registration Default Period. Upon the
cure of the Registration Default, the Special Interest shall
no longer accrue and the Securities will bear interest at the
original rate; provided, however, that if, after any such
cure, a different Registration Default occurs, then Special
Interest shall again accrue in accordance with the foregoing
provisions.
(d) The Company shall take all actions necessary or advisable to
be taken by it to ensure that the transactions contemplated
herein are effected as so contemplated.
(e) Any reference herein to a registration statement as of any
time shall be deemed to include any document incorporated, or
deemed to be incorporated, therein by reference as of such
time and any reference herein to any post-effective amendment
to a registration statement as of any time shall be deemed to
include any document incorporated, or deemed to be
incorporated, therein by reference as of such time.
3. Registration and Qualification Procedures.
If the Company files a registration statement and prospectus pursuant
to Section 2(a) or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the
Shelf Registration, as the case may be, the Indenture shall
have been qualified by the Company under the Trust Indenture
Act.
(b) In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company
shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
(c) In connection with the Company's obligations with respect to
the registration of Exchange Securities as contemplated by
Section 2(a) (the "Exchange Registration"), if applicable, the
Company shall, as soon as practicable (or as otherwise
specified):
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(i) prepare and file with the Commission and the
securities commissions of the Relevant Provinces, as
the case may be, as soon as practicable but no later
than 60 days after the Closing Date, an Exchange
Registration Statement on any form which may be
utilized by the Company and an Exchange Offer
Prospectus, respectively, and which shall permit the
Exchange Offer and resales of Exchange Securities by
broker-dealers during the Resale Period to be
effected as contemplated by Section 2(a), and use its
best efforts to cause such Exchange Registration
Statement to become effective and to obtain final
receipts for such Exchange Offer Prospectus as soon
as practicable thereafter, but no later than 180 days
after the Closing Date;
(ii) as soon as practicable prepare and file with the
Commission or the securities commissions of the
Relevant Provinces, as the case may be, such
amendments and supplements to such Exchange
Registration Statement and the prospectus included
therein or the Exchange Offer Prospectus, as may be
necessary to effect and maintain the effectiveness of
such Exchange Registration Statement or Exchange
Offer Prospectus for the periods and purposes
contemplated in Section 2(a) hereof and as may be
required by the applicable rules and regulations of
the Commission and the instructions applicable to the
form of such Exchange Registration Statement or
Canadian Securities Laws, as the case may be, and
promptly provide each broker-dealer holding Exchange
Securities with such number of copies of the
prospectus included therein (as then amended or
supplemented), in conformity in all material respects
with the requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of
the Commission thereunder and Canadian Securities
Laws, as such broker-dealer reasonably may request
prior to the expiration of the Resale Period, for use
in connection with resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has requested
or received copies of the prospectus included in such
registration statement or the Exchange Offer
Prospectus, and confirm such advice in writing, (A)
when such Exchange Registration Statement or the
prospectus included therein or any prospectus
amendment or supplement or post-effective amendment
or the Exchange Offer Prospectus has been filed, and,
with respect to such Exchange Registration Statement
or any post-effective amendment, when the same has
become effective, (B) of any comments by the
Commission or the British Columbia Securities
Commission and by the blue sky or securities
commissioner or regulator of any state or province
with respect thereto or any request by the Commission
for amendments or supplements to such Exchange
Registration Statement or prospectus or for
additional information, (C) of the issuance by the
Commission or the securities commission of a Relevant
Province of any stop order or cease trade order
suspending the effectiveness of such Exchange
Registration Statement or Exchange Offer Prospectus
or the initiation or threatening of any proceedings
for that purpose, (D) if at any time the
representations and warranties of the Company
contemplated by Section 5 cease to be true and
correct in all material respects, (E) of the receipt
by the Company of any notification with respect to
the suspension of the qualification of the Exchange
Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such
purpose, or (F) at any time during the Resale Period
when a prospectus is required to be delivered under
the Securities Act or Canadian Securities Laws, that
such Exchange Registration Statement, Exchange
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Offer Prospectus, prospectus, prospectus amendment or
supplement or post-effective amendment does not
conform in all material respects to the applicable
requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the
Commission thereunder or Canadian Securities Laws or
contains an untrue statement of a material fact or
omits to state any material fact required to be
stated therein or necessary to make the statements
therein not misleading in light of the circumstances
then existing;
(iv) in the event that the Company would be required,
pursuant to Section 3(e)(iii)(F) above, to notify any
broker-dealers holding Exchange Securities, without
delay prepare and furnish to each such holder a
reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter
delivered to purchasers of such Exchange Securities
during the Resale Period, such prospectus shall
conform in all material respects to the applicable
requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the
Commission thereunder and Canadian Securities Laws
and shall not contain an untrue statement of a
material fact or omit to state a material fact
required to be stated therein or necessary to make
the statements therein not misleading in light of the
circumstances then existing;
(v) use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of such Exchange
Registration Statement or any post-effective
amendment thereto, or ceasing the distribution of the
Exchange Securities under Canadian Securities Laws,
at the earliest practicable date;
(vi) use its best efforts to (A) register or qualify the
Exchange Securities under Canadian Securities Laws or
the securities laws or blue sky laws of such
jurisdictions as are contemplated by Section 2(a) no
later than the commencement of the Exchange Offer,
(B) keep such registrations or qualifications in
effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in
such jurisdictions until the expiration of the Resale
Period and (C) take any and all other actions as may
be reasonably necessary or advisable to enable each
broker-dealer holding Exchange Securities to
consummate the disposition thereof in such
jurisdictions; provided, however, that the Company
shall not be required for any such purpose to (1)
qualify as a foreign corporation in any jurisdiction
wherein it would not otherwise be required to qualify
but for the requirements of this Section 3(c)(vi),
(2) consent to general service of process in any such
jurisdiction or (3) make any changes to its
constating documents or by-laws or any agreement
between it and its shareholders;
(vii) use its best efforts to obtain the consent or
approval of each governmental agency or authority,
whether federal, state, provincial or local, which
may be required to effect the Exchange Registration,
the Exchange Offer and the offering and sale of
Exchange Securities by broker-dealers during the
Resale Period;
(viii) provide a CUSIP number for all Exchange Securities,
not later than the applicable Effective Time;
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(ix) comply with all applicable rules and regulations of
the Commission and the securities commissions of the
Relevant Provinces, and make generally available to
its securityholders as soon as practicable but no
later than eighteen months after the effective date
of such Exchange Registration Statement, an earnings
statement of the Company and its subsidiaries
complying with Section 11(a) of the Securities Act
(including, at the option of the Company, Rule 158
thereunder).
(d) In connection with the Company's obligations with respect to
the Shelf Registration, if applicable, the Company shall, as
soon as practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but in any case within the time periods
specified in Section 2(b), a Shelf Registration
Statement on any form which may be utilized by the
Company and which shall register all of the
Registrable Securities for resale by the holders
thereof in accordance with such method or methods of
disposition as may be specified by such of the
holders as, from time to time, may be Electing
Holders and use its best efforts to cause such Shelf
Registration Statement to become effective as soon as
practicable but in any case within the time periods
specified in Section 2(b);
(ii) not less than 30 calendar days prior to the Effective
Time of the Shelf Registration Statement, mail the
Notice and Questionnaire to the holders of
Registrable Securities; no holder shall be entitled
to be named as a selling securityholder in the Shelf
Registration Statement as of the Effective Time, and
no holder shall be entitled to use the prospectus
forming a part thereof for resales of Registrable
Securities at any time, unless such holder has
returned a completed and signed Notice and
Questionnaire to the Company by the deadline for
response set forth therein; provided, however,
holders of Registrable Securities shall have at least
28 calendar days from the date on which the Notice
and Questionnaire is first mailed to such holders to
return a completed and signed Notice and
Questionnaire to the Company;
(iii) after the Effective Time of the Shelf Registration
Statement, upon the request of any holder of
Registrable Securities that is not then an Electing
Holder, promptly send a Notice and Questionnaire to
such holder; provided that the Company shall not be
required to take any action to name such holder as a
selling securityholder in the Shelf Registration
Statement or to enable such holder to use the
prospectus forming a part thereof for resales of
Registrable Securities until such holder has returned
a completed and signed Notice and Questionnaire to
the Company;
(iv) as soon as practicable prepare and file with the
Commission such amendments and supplements to such
Shelf Registration Statement and the prospectus
included therein as may be necessary to effect and
maintain the effectiveness of such Shelf Registration
Statement for the period specified in Section 2(b)
hereof and as may be required by the applicable rules
and regulations of the Commission and the
instructions applicable to the form of such Shelf
Registration Statement, and furnish to the Electing
Holders copies of any
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such supplement or amendment simultaneously with or
prior to its being used or filed with the Commission;
(v) comply with the provisions of the Securities Act and
the securities laws of the Province of British
Columbia and other applicable provinces of Canada
with respect to the disposition of all of the
Registrable Securities covered by such Shelf
Registration Statement in accordance with the
intended methods of disposition by the Electing
Holders provided for in such Shelf Registration
Statement;
(vi) provide (A) the Electing Holders, (B) the
underwriters (which term, for purposes of this
Exchange and Registration Rights Agreement, shall
include a person deemed to be an underwriter within
the meaning of Section 2(a)(11) of the Securities
Act), if any, thereof, (C) any sales or placement
agent therefor, (D) counsel for any such underwriter
or agent and (E) not more than one counsel for all
the Electing Holders the opportunity to participate
in the preparation of such Shelf Registration
Statement, each prospectus included therein or filed
with the Commission and each amendment or supplement
thereto;
(vii) for a reasonable period prior to the filing of such
Shelf Registration Statement, and throughout the
period specified in Section 2(b), make available at
reasonable times at the Company's principal place of
business or such other reasonable place for
inspection by the persons referred to in Section
3(d)(vi) who shall certify to the Company that they
have a current intention to sell the Registrable
Securities pursuant to the Shelf Registration such
financial and other information and books and records
of the Company, and cause the officers, employees,
counsel and independent chartered accountants of the
Company to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the
respective counsel referred to in such Section, to
conduct a reasonable investigation within the meaning
of Section 11 of the Securities Act; provided,
however, that each such party shall be required to
maintain in confidence and not to disclose to any
other person any information or records reasonably
designated by the Company as being confidential,
until such time as (A) such information becomes a
matter of public record (whether by virtue of its
inclusion in such registration statement or
otherwise), or (B) such person shall be required so
to disclose such information pursuant to a subpoena
or order of any court or other governmental agency or
body having jurisdiction over the matter (subject to
the requirements of such order, and only after such
person shall have given the Company prompt prior
written notice of such requirement), or (C) such
information is required to be set forth in such Shelf
Registration Statement or the prospectus included
therein or in an amendment to such Shelf Registration
Statement or an amendment or supplement to such
prospectus in order that such Shelf Registration
Statement, prospectus, amendment or supplement, as
the case may be, complies with applicable
requirements of the federal securities laws and the
rules and regulations of the Commission and does not
contain an untrue statement of a material fact or
omit to state therein a material fact required to be
stated therein or necessary to make the statements
therein not misleading in light of the circumstances
then existing;
(viii) promptly notify each of the Electing Holders, any
sales or placement agent therefor and any underwriter
thereof (which notification may be made
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through any managing underwriter that is a
representative of such underwriter for such purpose)
and confirm such advice in writing, (A) when such
Shelf Registration Statement or the prospectus
included therein or any prospectus amendment or
supplement or post-effective amendment has been
filed, and, with respect to such Shelf Registration
Statement or any post-effective amendment, when the
same has become effective, (B) of any comments by the
Commission or the British Columbia Securities
Commission and by the blue sky or securities
commissioner or regulator of any state or province
with respect thereto or any request by the Commission
for amendments or supplements to such Shelf
Registration Statement or prospectus or for
additional information, (C) of the issuance by the
Commission of any stop order suspending the
effectiveness of such Shelf Registration Statement or
the initiation or threatening of any proceedings for
that purpose, (D) if at any time the representations
and warranties of the Company contemplated by Section
3(d)(xvii) or Section 5 cease to be true and correct
in all material respects, (E) of the receipt by the
Company of any notification with respect to the
suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such
purpose, or (F) if at any time when a prospectus is
required to be delivered under the Securities Act,
that such Shelf Registration Statement, prospectus,
prospectus amendment or supplement or post-effective
amendment does not conform in all material respects
to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and
regulations of the Commission thereunder or the
securities laws of the Province of British Columbia
and other applicable provinces of Canada or contains
an untrue statement of a material fact or omits to
state any material fact required to be stated therein
or necessary to make the statements therein not
misleading in light of the circumstances then
existing;
(ix) use its best efforts to obtain the withdrawal of (A)
any order suspending the effectiveness of such
registration statement or any post-effective
amendment thereto at the earliest practicable date,
(B) the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction
or (c) the initiation or threatening of any
proceeding for such purpose;
(x) if requested by any managing underwriter or
underwriters, any placement or sales agent or any
Electing Holder, promptly incorporate in a prospectus
supplement or post-effective amendment such
information as is required by the applicable rules
and regulations of the Commission and as such
managing underwriter or underwriters, such agent or
such Electing Holder specifies should be included
therein relating to the terms of the sale of such
Registrable Securities, including information with
respect to the principal amount of Registrable
Securities being sold by such Electing Holder or
agent or to any underwriters, the name and
description of such Electing Holder, agent or
underwriter, the offering price of such Registrable
Securities and any discount, commission or other
compensation payable in respect thereof, the purchase
price being paid therefor by such underwriters and
with respect to any other terms of the offering of
the Registrable Securities to be sold by such
Electing Holder or agent or to such underwriters; and
make all required filings of such prospectus
supplement or post-effective amendment promptly after
notification of the matters to be incorporated in
such prospectus supplement or post-effective
amendment;
11
(xi) furnish to each Electing Holder, each placement or
sales agent, if any, therefor, each underwriter, if
any, thereof and the respective counsel referred to
in Section 3(d)(vi) an executed copy (or, in the case
of an Electing Holder, a conformed copy) of such
Shelf Registration Statement, each such amendment and
supplement thereto (in each case including all
exhibits thereto (in the case of an Electing Holder
of Registrable Securities, upon request) and
documents incorporated by reference therein) and such
number of copies of such Shelf Registration Statement
(excluding exhibits thereto and documents
incorporated by reference therein unless specifically
so requested by such Electing Holder, agent or
underwriter, as the case may be) and of the
prospectus included in such Shelf Registration
Statement (including each preliminary prospectus and
any summary prospectus), in conformity in all
material respects with the applicable requirements of
the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission
thereunder and the British Columbia Securities
Commission, and such other documents, as such
Electing Holder, agent, if any, and underwriter, if
any, may reasonably request in order to facilitate
the offering and disposition of the Registrable
Securities owned by such Electing Holder, offered or
sold by such agent or underwritten by such
underwriter and to permit such Electing Holder, agent
and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and the Company
hereby consents to the use of such prospectus
(including such preliminary and summary prospectus)
and any amendment or supplement thereto by each such
Electing Holder and by any such agent and
underwriter, in each case in the form most recently
provided to such person by the Company, in connection
with the offering and sale of the Registrable
Securities covered by the prospectus (including such
preliminary and summary prospectus) or any supplement
or amendment thereto;
(xii) use best efforts to (A) register or qualify the
Registrable Securities to be included in such Shelf
Registration Statement under such securities laws or
blue sky laws of such jurisdictions as any Electing
Holder and each placement or sales agent, if any,
therefor and underwriter, if any, thereof shall
reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so
as to permit the continuance of offers, sales and
dealings therein in such jurisdictions during the
period the Shelf Registration is required to remain
effective under Section 2(b) above and for so long as
may be necessary to enable any such Electing Holder,
agent or underwriter to complete its distribution of
Securities pursuant to such Shelf Registration
Statement and (C) take any and all other actions as
may be reasonably necessary or advisable to enable
each such Electing Holder, agent, if any, and
underwriter, if any, to consummate the disposition in
such jurisdictions of such Registrable Securities;
provided, however, that the Company shall not be
required for any such purpose to (1) qualify as a
foreign corporation in any jurisdiction wherein it
would not otherwise be required to qualify but for
the requirements of this Section 3(d)(xii), (2)
consent to general service of process in any such
jurisdiction or (3) make any changes to its
constating documents or by-laws or any agreement
between it and its shareholders;
(xiii) use its best efforts to obtain the consent or
approval of each governmental agency or authority,
whether federal, state, provincial or local, which
may be required to effect the Shelf Registration or
the offering or sale in
12
connection therewith or to enable the selling holder
or holders to offer, or to consummate the disposition
of, their Registrable Securities;
(xiv) unless any Registrable Securities shall be in
book-entry only form, cooperate with the Electing
Holders and the managing underwriters, if any, to
facilitate the timely preparation and delivery of
certificates representing Registrable Securities to
be sold, which certificates, if so required by any
securities exchange upon which any Registrable
Securities are listed, shall be penned, lithographed
or engraved, or produced by any combination of such
methods, on steel engraved borders, and which
certificates shall not bear any restrictive legends;
and, in the case of an underwritten offering, enable
such Registrable Securities to be in such
denominations and registered in such names as the
managing underwriters may request at least two
business days prior to any sale of the Registrable
Securities;
(xv) provide a CUSIP number for all Registrable
Securities, not later than the applicable Effective
Time;
(xvi) enter into one or more underwriting agreements,
engagement letters, agency agreements, "best efforts"
underwriting agreements or similar agreements, as
appropriate, including customary provisions relating
to indemnification and contribution, and take such
other actions in connection therewith as any Electing
Holders aggregating at least 25% in aggregate
principal amount of the Registrable Securities at the
time outstanding shall request in order to expedite
or facilitate the disposition of such Registrable
Securities;
(xvii) whether or not an agreement of the type referred to
in Section 3(d)(xvi) hereof is entered into and
whether or not any portion of the offering
contemplated by the Shelf Registration is an
underwritten offering or is made through a placement
or sales agent or any other entity, (A) make such
representations and warranties to the Electing
Holders and the placement or sales agent, if any,
therefor and the underwriters, if any, thereof in
form, substance and scope as are customarily made in
connection with an offering of debt securities
pursuant to any appropriate agreement or to a
registration statement filed on the form applicable
to the Shelf Registration; (B) obtain an opinion of
counsel to the Company in customary form and covering
such matters, of the type customarily covered by such
an opinion, as the managing underwriters, if any, or
as any Electing Holders of at least 25% in aggregate
principal amount of the Registrable Securities at the
time outstanding may reasonably request, addressed to
such Electing Holder or Electing Holders and the
placement or sales agent, if any, therefor and the
underwriters, if any, thereof and dated the effective
date of such Shelf Registration Statement (and if
such Shelf Registration Statement contemplates an
underwritten offering of a part or all of the
Registrable Securities, dated the date of the closing
under the underwriting agreement relating thereto)
(it being agreed that the matters to be covered by
such opinion shall include the due incorporation,
amalgamation, continuance or formation and good
standing of the Company and its subsidiaries; the
qualification of the Company and its subsidiaries to
transact business as foreign corporations; the due
authorization, execution and delivery of the relevant
agreement of the type referred to in Section
3(d)(xvi) hereof; the due authorization, execution,
authentication and issuance, and the validity and
enforceability, of the Securities;
13
the absence of material legal or governmental
proceedings involving the Company; the absence of a
breach by the Company or any of its subsidiaries of,
or a default under, material agreements binding upon
the Company or any subsidiary of the Company; the
absence of governmental approvals required to be
obtained in connection with the Shelf Registration,
the offering and sale of the Registrable Securities,
this Exchange and Registration Rights Agreement or
any agreement of the type referred to in Section
3(d)(xvi) hereof, except such approvals as may be
required under state securities or blue sky laws; the
material compliance as to form of such Shelf
Registration Statement and any documents incorporated
by reference therein and of the Indenture with the
requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the
Commission thereunder, respectively; and, as of the
date of the opinion and of the Shelf Registration
Statement or most recent post-effective amendment
thereto, as the case may be, the absence from such
Shelf Registration Statement and the prospectus
included therein, as then amended or supplemented,
and from the documents incorporated by reference
therein (in each case other than the financial
statements and other financial information contained
therein) of an untrue statement of a material fact or
the omission to state therein a material fact
necessary to make the statements therein not
misleading (in the case of such documents, in the
light of the circumstances existing at the time that
such documents were filed with the British Columbia
Securities Commission and with the Commission under
the Exchange Act)); (C) obtain a "cold comfort"
letter or letters from the independent chartered
accountants of the Company addressed to the selling
Electing Holders, the placement or sales agent, if
any, therefor or the underwriters, if any, thereof,
dated (i) the effective date of such Shelf
Registration Statement and (ii) the effective date of
any prospectus supplement to the prospectus included
in such Shelf Registration Statement or
post-effective amendment to such Shelf Registration
Statement which includes unaudited or audited
financial statements as of a date or for a period
subsequent to that of the latest such statements
included in such prospectus (and, if such Shelf
Registration Statement contemplates an underwritten
offering pursuant to any prospectus supplement to the
prospectus included in such Shelf Registration
Statement or post-effective amendment to such Shelf
Registration Statement which includes unaudited or
audited financial statements as of a date or for a
period subsequent to that of the latest such
statements included in such prospectus, dated the
date of the closing under the underwriting agreement
relating thereto), such letter or letters to be in
customary form and covering such matters of the type
customarily covered by letters of such type; (D)
deliver such documents and certificates, including
officers' certificates, as may be reasonably
requested by any Electing Holders of at least 25% in
aggregate principal amount of the Registrable
Securities at the time outstanding or the placement
or sales agent, if any, therefor and the managing
underwriters, if any, thereof to evidence the
accuracy of the representations and warranties made
pursuant to clause (A) above or those contained in
Section 5(a) hereof and the compliance with or
satisfaction of any agreements or conditions
contained in the underwriting agreement or other
agreement entered into by the Company; and (E)
undertake such obligations relating to expense
reimbursement, indemnification and contribution as
are provided in Section 6 hereof;
(xviii) notify in writing each holder of Registrable
Securities of any proposal by the Company to amend or
waive any provision of this Exchange and Registration
14
Rights Agreement pursuant to Section 9(h) hereof and
of any amendment or waiver effected pursuant thereto,
each of which notices shall contain the text of the
amendment or waiver proposed or effected, as the case
may be;
(xix) in the event that any broker-dealer registered under
the Exchange Act shall underwrite any Registrable
Securities or participate as a member of an
underwriting syndicate or selling group or "assist in
the distribution" (within the meaning of the Conduct
Rules (the "Conduct Rules) of the National
Association of Securities Dealers, Inc. ("NASD") or
any successor thereto, as amended from time to time)
thereof, whether as a holder of such Registrable
Securities or as an underwriter, a placement or sales
agent or a broker or dealer in respect thereof, or
otherwise, assist such broker-dealer in complying
with the requirements of such Conduct Rules,
including by (A) if such Conduct Rules shall so
require, engaging a "qualified independent
underwriter" (as defined in such Conduct Rules) to
participate in the preparation of the Shelf
Registration Statement relating to such Registrable
Securities, to exercise usual standards of due
diligence in respect thereto and, if any portion of
the offering contemplated by such Shelf Registration
Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the
yield of such Registrable Securities, (B)
indemnifying any such qualified independent
underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof (or to such
other customary extent as may be requested by such
underwriter), and (C) providing such information to
such broker-dealer as may be required in order for
such broker-dealer to comply with the requirements of
the Conduct Rules; and
(xx) comply with all applicable rules and regulations of
the Commission, and make generally available to its
securityholders as soon as practicable but in any
event not later than eighteen months after the
effective date of such Shelf Registration Statement,
an earning statement of the Company and its
subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the
Company, Rule 158 thereunder).
(e) In the event that the Company would be required, pursuant to
Section 3(d)(viii)(F) above, to notify the Electing Holders,
the placement or sales agent, if any, therefor and the
managing underwriters, if any, thereof, the Company shall
without delay prepare and furnish to each of the Electing
Holders, to each placement or sales agent, if any, and to each
such underwriter, if any, a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter
delivered to purchasers of Registrable Securities, such
prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder and the securities laws of the Province of British
Columbia and other applicable provinces of Canada and shall
not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading in
light of the circumstances then existing. Each Electing Holder
agrees that upon receipt of any notice from the Company
pursuant to Section 3(d)(viii)(F) hereof, such Electing Holder
shall forthwith discontinue the disposition of Registrable
Securities pursuant to the Shelf Registration Statement
applicable to such Registrable Securities until such Electing
Holder shall have received copies of such amended or
supplemented prospectus, and if so directed by the Company,
such Electing Holder shall deliver to the Company (at the
Company's expense) all copies, other than permanent file
copies, then in such Electing
15
Holder's possession of the prospectus covering such
Registrable Securities at the time of receipt of such notice.
(f) In the event of a Shelf Registration, in addition to the
information required to be provided by each Electing Holder in
its Notice Questionnaire, the Company may require such
Electing Holder to furnish to the Company such additional
information regarding such Electing Holder and such Electing
Holder's intended method of distribution of Registrable
Securities as may be required in order to comply with the
Securities Act. Each such Electing Holder agrees to notify the
Company as promptly as practicable of any inaccuracy or change
in information previously furnished by such Electing Holder to
the Company or of the occurrence of any event in either case
as a result of which any prospectus relating to such Shelf
Registration contains or would contain an untrue statement of
a material fact regarding such Electing Holder or such
Electing Holder's intended method of disposition of such
Registrable Securities or omits to state any material fact
regarding such Electing Holder or such Electing Holder's
intended method of disposition of such Registrable Securities
required to be stated therein or necessary to make the
statements therein not misleading in light of the
circumstances then existing, and promptly to furnish to the
Company any additional information required to correct and
update any previously furnished information or required so
that such prospectus shall not contain, with respect to such
Electing Holder or the disposition of such Registrable
Securities, an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading in
light of the circumstances then existing.
(g) Until the expiration of two years after the Closing Date, the
Company will not, and will not permit any of its "affiliates"
(as defined in Rule 144) to, resell any of the Securities that
have been reacquired by any of them except pursuant to an
effective registration statement under the Securities Act.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly all
expenses incident to the Company's performance of or compliance with
this Exchange and Registration Rights Agreement, including (a) all
Commission, securities commissions in the Relevant Provinces and any
NASD registration, filing and review fees and expenses including fees
and disbursements of counsel for the placement or sales agent or
underwriters in connection with such registration, filing and review,
(b) all fees and expenses in connection with the qualification of the
Securities for offering and sale under the State securities and blue
sky laws referred to in Section 3(d)(xii) hereof and determination of
their eligibility for investment under the laws of such jurisdictions
as any managing underwriters or the Electing Holders may designate,
including any fees and disbursements of counsel for the Electing
Holders or underwriters in connection with such qualification and
determination, (c) all expenses relating to the preparation, printing,
production, distribution and reproduction of each registration
statement required to be filed hereunder, each prospectus included
therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the expenses of preparing the Securities
for delivery and the expenses of printing or producing any underwriting
agreements, agreements among underwriters, selling agreements and blue
sky or legal investment memoranda and all other documents in connection
with the offering, sale or delivery of Securities to be disposed of
(including certificates representing the Securities), (d) messenger,
telephone and delivery expenses relating to the offering, sale or
delivery of Securities and the preparation of documents referred in
clause (c) above, (e) fees and expenses of the Trustee under the
Indenture, any agent of the Trustee and
16
any counsel for the Trustee and of any collateral agent or custodian,
(f) internal expenses (including all salaries and expenses of the
Company's officers and employees performing legal or accounting
duties), (g) fees, disbursements and expenses of counsel and
independent chartered accountants of the Company (including the
expenses of any opinions or "cold comfort" letters required by or
incident to such performance and compliance), (h) fees, disbursements
and expenses of any "qualified independent underwriter" engaged
pursuant to Section 3(d)(xix) hereof, (i) fees, disbursements and
expenses of one counsel for the Electing Holders retained in connection
with a Shelf Registration, as selected by the Electing Holders of at
least a majority in aggregate principal amount of the Registrable
Securities held by Electing Holders (which counsel shall be reasonably
satisfactory to the Company), (j) any fees charged by securities rating
services for rating the Securities, and (k) fees, expenses and
disbursements of any other persons, including special experts, retained
by the Company in connection with such registration (collectively, the
"Registration Expenses"). To the extent that any Registration Expenses
are incurred, assumed or paid by any holder of Registrable Securities
or any placement or sales agent therefor or underwriter thereof, the
Company shall reimburse such person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after
receipt of a request therefor. Notwithstanding the foregoing, the
holders of the Registrable Securities being registered shall pay all
agency fees and commissions and underwriting discounts and commissions
attributable to the sale of such Registrable Securities and the fees
and disbursements of any counsel or other advisors or experts retained
by such holders (severally or jointly), other than the counsel and
experts specifically referred to above.
5. Representations and Warranties.
The Company represents and warrants to, and agrees with, each Initial
Purchaser and each of the holders from time to time of Registrable
Securities that:
(a) Each registration statement covering Registrable Securities,
each prospectus (including any preliminary or summary
prospectus) contained therein or furnished pursuant to Section
3(d) or Section 3(c) hereof and each prospectus filed with the
securities commissions in the Relevant Provinces and any
further amendments or supplements to any such registration
statement or prospectus, when it becomes effective or is filed
with the Commission or the securities commissions of the
Relevant Provinces, as the case may be, and, in the case of an
underwritten offering of Registrable Securities, at the time
of the closing under the underwriting agreement relating
thereto, will conform in all material respects to the
requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder and
Canadian Securities Laws and will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading; and at all times subsequent
to the Effective Time when a prospectus would be required to
be delivered under the Securities Act or Canadian Securities
Laws, other than from (i) such time as a notice has been given
to holders of Registrable Securities pursuant to Section
3(d)(viii)(F) or Section 3(c)(iii)(F) hereof until (ii) such
time as the Company furnishes an amended or supplemented
prospectus pursuant to Section 3(e) or Section 3(c)(iv)
hereof, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or
furnished pursuant to Section 3(d) or Section 3(c) hereof, as
then amended or supplemented, will conform in all material
respects to the requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the
Commission thereunder and Canadian Securities Laws and will
not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading in
17
the light of the circumstances then existing; provided,
however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the
Company by a holder of Registrable Securities expressly for
use therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they become or became
effective or are or were filed with the Commission, as the
case may be, will conform or conformed in all material
respects to the requirements of the Securities Act or the
Exchange Act, the securities Laws of the Province of British
Columbia and other applicable provinces of Canada as
applicable, and none of such documents will contain or
contained an untrue statement of a material fact or will omit
or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished
in writing to the Company by a holder of Registrable
Securities expressly for use therein.
(c) The compliance by the Company with all of the provisions of
this Exchange and Registration Rights Agreement and the
consummation of the transactions herein contemplated will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any subsidiary of the
Company is a party or by which the Company or any subsidiary
of the Company is bound or to which any of the property or
assets of the Company or any subsidiary of the Company is
subject, nor will such action result in any violation of the
provisions of the constating documents, as amended, or the
by-laws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any subsidiary of the Company
or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for
the consummation by the Company of the transactions
contemplated by this Exchange and Registration Rights
Agreement, except the registration under the Securities Act of
the Securities, qualification of the Indenture under the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
laws and regulations of the Province of British Columbia and
other applicable provinces of Canada or state securities or
blue sky laws in connection with the offering and distribution
of the Securities.
(d) This Exchange and Registration Rights Agreement has been duly
authorized, executed and delivered by the Company.
6. Indemnification.
(a) Indemnification by the Company. The Company will indemnify and
hold harmless each of the holders of Registrable Securities
included in an Exchange Registration Statement or Exchange
Offer Prospectus, each of the Electing Holders of Registrable
Securities included in a Shelf Registration Statement and each
person who participates as a placement or sales agent or as an
underwriter in any offering or sale of such Registrable
Securities against any losses, claims, damages or liabilities,
joint or several, to which such holder, agent or underwriter
may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an
untrue statement or alleged
18
untrue statement of a material fact contained in any Exchange
Registration Statement, Shelf Registration Statement or
Exchange Offer Prospectus as the case may be, under which such
Registrable Securities were registered under the Securities
Act or Canadian Securities Laws, as the case may be, or any
preliminary, final or summary prospectus contained therein or
furnished by the Company to any such holder, Electing Holder,
agent or underwriter, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and will reimburse such holder, such Electing
Holder, such agent and such underwriter for any legal or other
expenses reasonably incurred by them in connection with
investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company
shall not be liable to any such person in any such case to the
extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such
registration statement, or preliminary, final or summary
prospectus, or amendment or supplement thereto, in reliance
upon and in conformity with written information furnished to
the Company by such person expressly for use therein.
(b) Indemnification by the Holders and any Agents and
Underwriters. The Company may require, as a condition to
including any Registrable Securities in any registration
statement filed pursuant to Section 2(b) hereof and to
entering into any underwriting agreement with respect thereto,
that the Company shall have received an undertaking reasonably
satisfactory to it from the Electing Holder of such
Registrable Securities and from each underwriter named in any
such underwriting agreement, severally and not jointly, to (i)
indemnify and hold harmless the Company, and all other holders
of Registrable Securities, against any losses, claims, damages
or liabilities to which the Company or such other holders of
Registrable Securities may become subject, under the
Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in such registration
statement, or any preliminary, final or summary prospectus
contained therein or furnished by the Company to any such
Electing Holder, agent or underwriter, or any amendment or
supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information
furnished to the Company by such Electing Holder or
underwriter expressly for use therein, and (ii) reimburse the
Company for any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any
such action or claim as such expenses are incurred; provided,
however, that no such Electing Holder shall be required to
undertake liability to any person under this Section 6(b) for
any amounts in excess of the dollar amount of the proceeds to
be received by such Electing Holder from the sale of such
Electing Holder's Registrable Securities pursuant to such
registration.
(c) Notices of Claims, Etc. Promptly after receipt by an
indemnified party under subsection (a) or (b) above of written
notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made
against an indemnifying party pursuant to the indemnification
provisions of or contemplated by this Section 6, notify such
indemnifying party in writing of the commencement of such
action; but the omission so to notify the indemnifying party
shall not relieve it from any
19
liability which it may have to any indemnified party otherwise
than under the indemnification provisions of or contemplated
by Section 6(a) or 6(b) hereof. In case any such action shall
be brought against any indemnified party and it shall notify
an indemnifying party of the commencement thereof, such
indemnifying party shall be entitled to participate therein
and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of
the indemnified party, be counsel to the indemnifying party),
and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense
thereof, such indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying
party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification
or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such
action or claim and (ii) does not include a statement as to or
an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable
to or insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the
Initial Purchasers on the other from the offering of the
Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice
required under subscription (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative
fault of the indemnifying party and the indemnified party in
connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable
considerations. The relative fault of such indemnifying party
and indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission
to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and
equitable if contributions pursuant to this Section 6(d) were
determined by pro rata allocation (even if the holders or any
agents or underwriters or all of them were treated as one
entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations
referred to in this Section 6(d). The amount paid or payable
by an indemnified party as a result of the losses, claims,
damages, or liabilities (or actions in respect thereof)
referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such
action or claim.
20
Notwithstanding the provisions of this Section 6(d), no holder
shall be required to contribute any amount in excess of the
amount by which the dollar amount of the proceeds received by
such holder from the sale of any Registrable Securities (after
deducting any fees, discounts and commissions applicable
thereto) exceeds the amount of any damages which such holder
has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and
no underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the
Registrable Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of
any damages which such underwriter has otherwise been required
to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent
misrepresentation. The holders' and any underwriters'
obligations in this Section 6(d) to contribute shall be
several in proportion to the principal amount of Registrable
Securities registered or underwritten, as the case may be, by
them and not joint.
(e) The obligations of the Company under this Section 6 shall be
in addition to any liability which the Company may otherwise
have and shall extend, upon the same terms and conditions, to
each officer, director and partner of each holder, agent and
underwriter and each person, if any, who controls any holder,
agent or underwriter within the meaning of the Securities Act;
and the obligations of the holders and any agents or
underwriters contemplated by this Section 6 shall be in
addition to any liability which the respective holder, agent
or underwriter may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the
Company including any person who, with his consent, is named
in any registration statement as about to become a director of
the Company and to each person, if any, who controls the
Company within the meaning of the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable
Securities covered by the Shelf Registration are to be sold
pursuant to an underwritten offering, the managing underwriter
or underwriters thereof shall be designated by Electing
Holders holding at least a majority in aggregate principal
amount of the Registrable Securities to be included in such
offering, provided that such designated managing underwriter
or underwriters is or are reasonably acceptable to the
Company.
(b) Participation by Holders. Each holder of Registrable
Securities hereby agrees with each other such holder that no
such holder may participate in any underwritten offering
hereunder unless such holder (i) agrees to sell such holder's
Registrable Securities on the basis provided in any
underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. Rule 144.
The Company covenants to the holders of Registrable Securities that to
the extent it shall be required to do so under the Exchange Act, the
Company shall timely file the reports required to be filed by it under
the Exchange Act or the Securities Act (including the reports under
Section
21
13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of
Rule 144 adopted by the Commission under the Securities Act) and the
rules and regulations adopted by the Commission thereunder, and shall
take such further action as any holder of Registrable Securities may
reasonably request, all to the extent required from time to time to
enable such holder to sell Registrable Securities without registration
under the Securities Act within the limitations of the exemption
provided by Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar or successor rule or
regulation hereafter adopted by the Commission. Upon the request of any
holder of Registrable Securities in connection with that holder's sale
pursuant to Rule 144, the Company shall deliver to such holder a
written statement as to whether it has complied with such requirements
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not
grant, registration rights with respect to Registrable
Securities or any other securities which would be inconsistent
with the terms contained in this Exchange and Registration
Rights Agreement.
(b) Specific Performance. The parties hereto acknowledge that
there would be no adequate remedy at law if the Company fails
to perform any of its obligations hereunder and that the
Initial Purchasers and the holders from time to time of the
Registrable Securities may be irreparably harmed by any such
failure, and accordingly agree that the Initial Purchasers and
such holders, in addition to any other remedy to which they
may be entitled at law or in equity, shall be entitled to
compel specific performance of the obligations of the Company
under this Exchange and Registration Rights Agreement in
accordance with the terms and conditions of this Exchange and
Registration Rights Agreement, in any court of the United
States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall
be deemed to have been duly given when delivered by hand, if
delivered personally or by courier, or three days after being
deposited in the mail (registered or certified mail, postage
prepaid, return receipt requested) as follows: If to the
Company, to its address as set forth in the Offering Circular,
Attention: Xxxx Xxxxxx, Chief Financial Officer, and if to a
holder, to the address of such holder set forth in the
security register or other records of the Company, or to such
other address as the Company or any such holder may have
furnished to the other in writing in accordance herewith,
except that notices of change of address shall be effective
only upon receipt.
(d) Parties in Interest. All the terms and provisions of this
Exchange and Registration Rights Agreement shall be binding
upon, shall inure to the benefit of and shall be enforceable
by the parties hereto and the holders from time to time of the
Registrable Securities and the respective successors and
assigns of the parties hereto and such holders. In the event
that any transferee of any holder of Registrable Securities
shall acquire Registrable Securities, in any manner, whether
by gift, bequest, purchase, operation of law or otherwise,
such transferee shall, without any further writing or action
of any kind, be deemed a beneficiary hereof for all purposes
and such Registrable Securities shall be held subject to all
of the terms of this Exchange and Registration Rights
Agreement, and by taking and holding such Registrable
Securities such transferee shall be entitled to receive the
benefits of, and be conclusively deemed to have agreed to be
bound by all of the applicable terms and provisions of this
Exchange and Registration
22
Rights Agreement. If the Company shall so request, any such
successor, assign or transferee shall agree in writing to
acquire and hold the Registrable Securities subject to all of
the applicable terms hereof.
(e) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth
in this Exchange and Registration Rights Agreement or made
pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the
results thereof) made by or on behalf of any holder of
Registrable Securities, any director, officer or partner of
such holder, any agent or underwriter or any director, officer
or partner thereof, or any controlling person of any of the
foregoing, and shall survive delivery of and payment for the
Registrable Securities pursuant to the Purchase Agreement and
the transfer and registration of Registrable Securities by
such holder and the consummation of an Exchange Offer.
(f) Governing Law. This Exchange and Registration Rights Agreement
shall be governed by and construed in accordance with the laws
of the State of New York.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement
are inserted for convenience only, do not constitute a part of
this Exchange and Registration Rights Agreement and shall not
affect in any way the meaning or interpretation of this
Exchange and Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and Registration
Rights Agreement and the other writings referred to herein
(including the Indenture and the form of Securities) or
delivered pursuant hereto which form a part hereof contain the
entire understanding of the parties with respect to its
subject matter. This Exchange and Registration Rights
Agreement supersedes all prior agreements and understandings
between the parties with respect to its subject matter. This
Exchange and Registration Rights Agreement may be amended and
the observance of any term of this Exchange and Registration
Rights Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively)
only by a written instrument duly executed by the Company and
the holders of at least a majority in aggregate principal
amount of the Registrable Securities at the time outstanding.
Each holder of any Registrable Securities at the time or
thereafter outstanding shall be bound by any amendment or
waiver effected pursuant to this Section 9(h), whether or not
any notice, writing or marking indicating such amendment or
waiver appears on such Registrable Securities or is delivered
to such holder.
(i) Inspection. For so long as this Exchange and Registration
Rights Agreement shall be in effect, this Exchange and
Registration Rights Agreement and a complete list of the names
and addresses of all the holders of Registrable Securities
shall be made available for inspection and copying on any
business day by any holder of Registrable Securities for
proper purposes only (which shall include any purpose related
to the rights of the holders of Registrable Securities under
the Securities, the Indenture and this Agreement) at the
offices of the Company at the address thereof set forth in
Section 9(c) above and at the office of the Trustee under the
Indenture.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute
one and the same instrument.
23
(k) Service of Process. The Company irrevocably (i) agrees that
any legal suit, action or proceeding against the Company
brought by any holder, agent or underwriter or by any person
who controls any holder, agent or underwriter arising out of
or based upon this Agreement or the transactions contemplated
hereby may be instituted in any New York Court, (ii) waives,
to the fullest extent it may effectively do so, any objection
which it may now or hereafter have to the laying of venue of
any such proceeding and (iii) submits to the exclusive
jurisdiction of such courts in any such suit, action or
proceeding. The Company has appointed PTSGE Corp., 000 Xxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx 00000-0000, as its
authorized agent (the "Authorized Agent") upon whom process
may be served in any such action arising out of or based on
this Agreement or the transactions contemplated hereby which
may be instituted in any New York Court by any holder, agent
or underwriter or by any person who controls any holder, agent
or underwriter, expressly consents to the jurisdiction of any
such court in respect of any such action, and waives any other
requirements of or objections to personal jurisdiction with
respect thereto. Such appointment shall be irrevocable. The
Company represents and warrants that the Authorized Agent has
agreed to act as such agent for service of process and agrees
to take any and all action, including the filing of any and
all documents and instruments, that may be necessary to
continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent and
written notice of such service to the Company shall be deemed,
in every respect, effective service of process upon the
Company.
(l) Judgment Currency. In respect of any judgment or order given
or made for any amount due hereunder that is expressed and
paid in a currency (the "judgment currency") other than
Canadian dollars, the Company will indemnify each holder,
agent or underwriter against any loss incurred by such holder,
agent or underwriter as a result of any variation as between
(i) the rate of exchange at which the Canadian dollar amount
is converted into the judgment currency for the purpose of
such judgment or order and (ii) the rate of exchange at which
an holder, agent or underwriter is able to purchase Canadian
dollars with the amount of judgment currency actually received
by such holder, agent or underwriter. The foregoing indemnity
shall constitute a separate and independent obligation of the
Company and shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The
term "rate of exchange" shall include any premiums and costs
of exchange payable in connection with the purchase of or
conversion into Canadian dollars.
24
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company and one for each of the Initial Purchasers
plus one for each counsel counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Initial Purchasers, this letter and such
acceptance hereof shall constitute a binding agreement between each of the
Initial Purchasers and the Company.
Very truly yours,
Intrawest Corporation
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Corporate Secretary and
Chief Privacy Officer
The foregoing Agreement
is hereby confirmed and accepted
as of the date first written above.
Deutsche Bank Securities Limited
Scotia Capital Inc.
BMO Xxxxxxx Xxxxx Inc.
RBC Dominion Securities Inc.
TD Securities Inc.
By: DEUTSCHE BANK SECURITIES LIMITED
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and CEO
By: /s/ Xxxx Xxx
--------------------------------------
Name: Xxxx Xxx
Title: Director
By: SCOTIA CAPITAL INC.
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
By: BMO XXXXXXX XXXXX INC.
By: Xxxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Executive Managing Director
By: RBC DOMINION SECURITIES INC.
By: Xxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
By: TD SECURITIES INC.
By: Xxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
EXHIBIT A
INTRAWEST CORPORATION
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE] *
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in the Intrawest Corporation (the
"Company") 6.875% Senior Notes due October 15, 2009 (the "Securities") are held.
The Company is in the process of registering the Securities under the
Securities Act of 1933 for resale by the beneficial owners thereof. In order to
have their Securities included in the registration statement, beneficial owners
must complete and return the enclosed Notice of Registration Statement and
Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy
of the enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy
of the enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact Intrawest
Corporation, Xxxxx 000, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx
X0X 0X0, telephone: (000) 000-0000.
-----------
* Not less than 28 calendar days from date of mailing.
INTRAWEST CORPORATION
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement (the
"Exchange and Registration Rights Agreement") between Intrawest Corporation (the
"Company") and the Initial Purchasers named therein. Pursuant to the Exchange
and Registration Rights Agreement, the Company has filed with the United States
Securities and Exchange Commission (the "Commission") a registration statement
on Form F-10 (the "Shelf Registration Statement") for the registration and
resale under the Securities Act of 1933, as amended (the "Securities Act"), of
the Company's 6.875% Senior Notes due October 15, 2009 (the "Securities"). A
copy of the Exchange and Registration Rights Agreement is attached hereto. All
capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is entitled
to have the Registrable Securities beneficially owned by it included in the
Shelf Registration Statement. In order to have Registrable Securities included
in the Shelf Registration Statement, this Notice of Registration Statement and
Selling Securityholder Questionnaire ("Notice and Questionnaire") must be
completed, executed and delivered to the Company's counsel at the address set
forth herein for receipt ON OR BEFORE [DEADLINE FOR RESPONSE]. Beneficial owners
of Registrable Securities who do not complete, execute and return this Notice
and Questionnaire by such date (i) will not be named as selling securityholders
in the Shelf Registration Statement and (ii) may not use the Prospectus forming
a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus. The term "Registrable Securities" is defined in the Exchange
and Registration Rights Agreement.
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Exchange and Registration Rights
Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and
as Exhibit B to the Exchange and Registration Rights Agreement. The Selling
Securityholder hereby provides the following information to the Company and
represents and warrants that such information is accurate and complete:
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as in
(a) above) of Registrable Securities Listed in Item (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not
the same as (b) above) Through Which Registrable Securities
Listed in Item (3) below are Held:
(2) Address for Notices to Selling Securityholder:
---------------
---------------
---------------
Telephone:
--------------------
Fax:
--------------------
Contact Person:
--------------------
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned
does not beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned:
CUSIP No(s). of such Registrable Securities:
(b) Principal amount of Securities other than Registrable Securities
beneficially owned:
-----------------------------
CUSIP No(s). of such other Securities:
-----------------------
(c) Principal amount of Registrable Securities which the undersigned
wishes to be included in the Shelf Registration Statement:
-----------------------------------------------------
CUSIP No(s). of such Registrable Securities to be included in the
Shelf Registration Statement:
-------------------------------------
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned
Selling Securityholder is not the beneficial or registered
owner of any other securities of the Company, other than the
Securities listed above in Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor
any of its affiliates, officers, directors or principal equity
holders (5% or more) has held any position or office or has had any
other material relationship with the Company (or its predecessors
or affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in
Item (3) only as follows (if at all): Such Registrable Securities
may be sold from time to time directly by the undersigned Selling
Securityholder or, alternatively, through underwriters,
broker-dealers or agents. Such Registrable Securities may be sold
in one or more transactions at fixed prices, at prevailing market
prices at the time of sale, at varying prices determined at the
time of sale, or at negotiated prices. Such sales may be effected
in transactions (which may involve crosses or block transactions)
(i) on any national securities exchange or quotation service on
which the Registered Securities may be listed or quoted at the time
of sale, (ii) in the over-the-counter market, (iii) in transactions
otherwise than on such exchanges or services or in the
over-the-counter market, or (iv) through the writing of options. In
connection with sales of the Registrable Securities or otherwise,
the Selling Securityholder may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the
Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable
Securities short and deliver Registrable Securities to close out
such short positions, or loan or pledge Registrable Securities to
broker-dealers that in turn may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M and with any applicable provisions of the Canadian Securities Laws.
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement. By signing below, the Selling Securityholder
consents to the disclosure of the information contained herein in its answers to
Items (1) through (6) above and the inclusion of such information in the Shelf
Registration Statement and related Prospectus. The Selling Securityholder
understands that such information will be relied upon by the Company in
connection with the preparation of the Shelf Registration Statement and related
Prospectus.
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Exchange and Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Exchange and Registration
Rights Agreement shall be made in writing, by hand-delivery, first-class mail,
or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
-------------------------
-------------------------
-------------------------
-------------------------
-------------------------
(ii) With a copy to:
-------------------------
-------------------------
-------------------------
-------------------------
-------------------------
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above. This
Agreement shall be governed in all respects by the laws of the State of New
York.
33
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated: .
------------------
--------------------------------------------------------------------------
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable Securities)
By:
-----------------------------------------------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
-------------------------
-------------------------
-------------------------
-------------------------
-------------------------
34
EXHIBIT B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
JPMORGAN CHASE BANK
INTRAWEST CORPORATION
c/o JPMORGAN CHASE BANK
GLOBAL TRUST SERVICES 0 XXX XXXX XXXXX, 00XX XXXXX, XXX XXXX, XX, U.S.A 10004
Attention: Trust Officer
Re: INTRAWEST CORPORATION (the "Company")
6.875% Senior Notes due October 15, 2009
Dear Sirs:
Please be advised that ______________ has transferred C$_______ aggregate
principal amount of the above-referenced Notes pursuant to an effective
Registration Statement on Form F-10 (File No. 333- ) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Holder" in the Prospectus
dated [DATE] or in supplements thereto, and that the aggregate principal amount
of the Notes transferred are the Notes listed in such Prospectus opposite such
owner's name. Dated:
Very truly yours,
---------------------------------
(Name)
By:
---------------------------------
(Authorized Signature)
35
