EXHIBIT 7.1
INTRAWEST CORPORATION
10.50% SENIOR NOTES DUE FEBRUARY 1, 2010
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
September 18, 2002
Deutsche Bank Securities Inc.
Scotia Capital (USA) Inc.
As representatives of the several Initial Purchasers
c/o Deutsche Bank Securities Inc.
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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 10.50% Senior Notes
due February 1, 2010. 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.
"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 and (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.
"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 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 September 18, 2002,
(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 13, 2002, 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 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.
"Resale Period" shall have the meaning assigned thereto in Section 2(a)
hereof.
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"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 10.50% Senior Notes due
February 1, 2010 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.
(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, 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 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
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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. 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
and the Exchange Act 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 Statement effective 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, 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,
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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 or Shelf Registration Statement on or
before the date on which such registration statement is required
to be filed pursuant to Section 2(a) or 2(b), respectively, or
(ii) such Exchange Registration Statement or Shelf Registration
Statement has not become effective or been declared effective by
the Commission on or before the date on which such registration
statement is required to become or be declared effective 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 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 (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 Procedures.
If the Company files a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall apply:
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(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Company shall qualify the
Indenture 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):
(i) prepare and file with the Commission, 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 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 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 such amendments and supplements to such
Exchange Registration Statement and the prospectus
included therein as may be necessary to effect and
maintain the effectiveness of such Exchange Registration
Statement 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, 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, 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, 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 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 of any stop order suspending
the effectiveness of such Exchange Registration Statement
or
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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, that such Exchange 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;
(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 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 at the
earliest practicable date;
(vi) use its best efforts to (A) register or qualify the
Exchange Securities under the laws and regulations of the
Province of British Columbia and other applicable
provinces of Canada 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
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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;
(ix) comply with all applicable rules and regulations of the
Commission and the British Columbia Securities Commission,
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 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).
(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;
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(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 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
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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 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
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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;
(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
11
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
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
12
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
13
Securities; 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
14
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 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
15
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 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 and any NASD registration, filing and review fees and
16
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 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 and
each prospectus (including any preliminary or summary prospectus)
contained therein or furnished pursuant to Section 3(d) or Section
3(c) hereof and any further amendments or supplements to any such
registration statement or prospectus, when it becomes effective or
is filed with the Commission, 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
17
Commission thereunder and the securities laws of the Province of
British Columbia and other applicable provinces of Canada 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, 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 the securities laws of the Province of
British Columbia and other applicable provinces of Canada 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 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
▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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, 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 untrue statement of a
material fact contained in any Exchange Registration Statement or
Shelf Registration Statement, as the case may be, under which such
Registrable Securities were registered under the Securities Act,
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
19
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
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
20
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.
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.
21
(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 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: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Executive Vice President and 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.
22
(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 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.
23
(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.
(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., ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 United States
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 United States 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 United States 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 United States 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. It is understood that your acceptance of this letter
on behalf of each of the Initial Purchasers is pursuant to the authority set
forth in a form of Agreement among Initial Purchasers, the form of which shall
be submitted to the Company for examination upon request, but without warranty
on your part as to the authority of the signers thereof.
Very truly yours,
Intrawest Corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Corporate Secretary
The foregoing Agreement
is hereby confirmed and accepted
as of the date first written above.
Deutsche Bank Securities Inc.
Scotia Capital (USA) Inc.
By: DEUTSCHE BANK SECURITIES INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name:
Title:
By: /s/ A. ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name:
Title:
For itself and on behalf of the Representatives and the Initial Purchasers
25
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")
10.50% Senior Notes due February 1, 2010 (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, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇, telephone: (▇▇▇) ▇▇▇-▇▇▇▇.
--------
* Not less than 28 calendar days from date of mailing.
26
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 10.50% Senior Notes due February 1, 2010 (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.
27
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:
28
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
29
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:
30
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.
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:
____________________________________________
____________________________________________
____________________________________________
____________________________________________
____________________________________________
31
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.
32
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:
____________________________________________
____________________________________________
____________________________________________
____________________________________________
____________________________________________
33
EXHIBIT B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
JPMORGAN CHASE BANK
INTRAWEST CORPORATION
c/o JPMORGAN CHASE BANK
GLOBAL TRUST SERVICES ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇, ▇.▇.▇. 10001
Attention: Trust Officer
Re: INTRAWEST CORPORATION (the "Company")
10.50% Senior Notes due February 1, 2010
Dear Sirs:
Please be advised that ____________________________ has transferred $__________
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)
34