EXHIBIT 4.5
DECLARATION OF TRUST
This DECLARATION OF TRUST, dated as of May 25, 2006 (this
"Declaration"), among (i) Great Wolf Resorts, Inc., a Delaware corporation, as
sponsor (the "Sponsor"), (ii) J. Xxxxxxx Xxxxxxxxx and Xxxxx X. Xxxxxx, as the
administrative trustees (the "Administrative Trustees"), and (iii) Wilmington
Trust Company, a Delaware banking corporation, as the property trustee (the
"Property Trustee" and collectively with the Administrative Trustees, the
"Trustees"). The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known
as "GW Capital Trust II" in which name the Trustees, or the Sponsor to the
extent provided herein, may engage in the transactions contemplated hereby, make
and execute contracts, and xxx and be sued on behalf of the Trust.
2. The Sponsor hereby assigns, transfers conveys and
sets over to the Property Trustee the sum of $10.00. The Property Trustee hereby
acknowledges receipt of such amount in trust from the Sponsor, which amount
shall constitute the initial trust estate. The Property Trustee hereby declares
that it will hold the trust estate in trust for the Sponsor. It is the intention
of the parties hereto that the Trust created hereby constitute a statutory trust
under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section 3801, et
seq. (the "Trust Act"), and that this document constitute the governing
instrument of the Trust. The Trustees are hereby authorized and directed to
execute and file a certificate of trust in the form of Exhibit A attached hereto
with the Delaware Secretary of State in accordance with the provisions of the
Trust Act.
3. The Sponsor and the Trustees will enter into an
amended and restated Declaration of Trust, satisfactory to each such party and
substantially in the form included as an exhibit to the 1933 Act Registration
Statement (as defined below), to provide for the contemplated operation of the
Trust created hereby and the issuance of the preferred securities and common
securities referred to therein (collectively, the "Trust Securities"). Prior to
the execution and delivery of such amended and restated Declaration of Trust,
the Property Trustee shall not have any duty or obligation hereunder or with
respect to the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise.
4. The Sponsor and/or the Administrative Trustees,
acting individually or jointly, as agents of the Trust, are hereby authorized
(i) to file with the Securities and Exchange Commission (the "Commission") and
execute, in each case on behalf of the Trust, (a) the Registration Statement on
Form S-1 (the "1933 Act Registration Statement"), including any pre-effective or
post-effective amendments to the 1933 Act Registration Statement, relating to
the registration under the Securities Act of 1933, as amended (the "1933 Act"),
of the preferred securities of the Trust and (b, (b) any preliminary prospectus
or prospectus or supplement thereto relating to the preferred securities
required to be filed pursuant to the 1933 Act, and (c) a Registration Statement
on Form 8-A (the "1934 Act Registration Statement") (including all pre-effective
and post-effective amendments thereto) relating to the registration of the
preferred securities of the Trust under the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange, Inc. or any other
national stock exchange or The Nasdaq National Market (each, an "Exchange") and
execute on behalf of the Trust one or more listing
applications and all other applications, statements, certificates, agreements
and other instruments as shall be necessary or desirable to cause the preferred
securities to be listed on any of the Exchanges; (iii) to file and execute on
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as shall be necessary or desirable to register the preferred
securities under the securities or blue sky laws of such jurisdictions as the
Sponsor, on behalf of the Trust, may deem necessary or desirable; (iv) to
execute and deliver letters or documents to, or instruments for filing with, a
depository relating to the preferred securities of the Trust; and (v) to execute
on behalf of the Trust one or more underwriting agreements, in customary form,
relating to the preferred securities.
5. The number of Trustees initially shall be three (3)
and thereafter the number of Trustees shall be such number as shall be fixed
from time to time by a written instrument signed by the Sponsor which may
increase or decrease the number of Trustees; provided, however, that to the
extent required by the Trust Act, one Trustee shall either be a natural person
who is a resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable Delaware law. Subject to the
foregoing, the Sponsor is entitled to appoint or remove without cause any
Trustee at any time. The Trustees may resign upon thirty (30) days' prior notice
to the Sponsor, but such resignation shall not be effective until the Sponsor
has appointed a successor trustee and such successor trustee shall become a
Trustee hereunder.
6. The recitals contained in this Declaration shall be
taken as statements of the Sponsor, and the Property Trustee does not assume any
responsibility for their correctness. The Property Trustee makes no
representations as to the value or condition of the property of the Trust or any
part thereof. The Property Trustee makes no representations as to the validity
or sufficiency of this Declaration.
7. (a) The Administrative Trustees, and the Property
Trustee and its officers, directors, agents and servants (collectively, the
"Fiduciary Indemnified Persons") shall not be liable, responsible or accountable
in damages or otherwise to the Trust, the Sponsor, the Trustees or any holder of
the Trust Securities for any loss, damage or claim incurred by reason of any act
or omission performed or omitted by the Fiduciary Indemnified Persons in good
faith on behalf of the Trust and in a manner the Fiduciary Indemnified Persons
reasonably believed to be within the scope of authority conferred on the
Fiduciary Indemnified Persons by this Declaration or by law, except that the
Fiduciary Indemnified Persons shall be liable for any such loss, damage or claim
incurred by reason of the Fiduciary Indemnified Person's negligence, bad faith
or willful misconduct with respect to such acts or omissions.
(b) The Fiduciary Indemnified Persons shall be fully
protected in relying in good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to the Trust by any
person as to matters the Fiduciary Indemnified Persons reasonably believe are
within such other person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Trust, including
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any
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other facts pertinent to the existence and amount of assets from which
distributions to holders of Trust Securities might properly be paid.
(c) The Sponsor agrees, to the fullest extent permitted
by applicable law, (i) to indemnify and hold harmless each Fiduciary Indemnified
Person, or any of its officers, directors, shareholders, employees,
representatives or agents, from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever incurred by the
Fiduciary Indemnified Persons by reason of the creation, operation or
termination of the Trust, except that no Fiduciary Indemnified Persons shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
the Fiduciary Indemnified Persons by reason of negligence, bad faith or willful
misconduct with respect to such acts or omissions, and (ii) to advance expenses
(including legal fees) incurred by a Fiduciary Indemnified Person in defending
any claim, demand, action, suit or proceeding, from time to time, prior to the
final disposition of such claim, demand, action, suit or proceeding, upon
receipt by the Trust of an undertaking by or on behalf of such Fiduciary
Indemnified Persons to repay such amount if it shall be determined that such
Fiduciary Indemnified Person is not entitled to be indemnified as authorized in
the preceding subsection. Promptly after receipt by a Fiduciary Indemnified
Person of notice of the commencement of any action, such Fiduciary Indemnified
Person will, if a claim in respect thereof is to be made against the Sponsor
under this clause (c), notify the Sponsor in writing of the commencement
thereof, provided that failure to give such prompt notice shall not impair the
obligations of the Sponsor hereunder except to the extent that such failure to
provide notice materially prejudices the Sponsor. The Sponsor shall be entitled
to appoint counsel of the Sponsor's choice at the Sponsor's expense to represent
the Fiduciary Indemnified Persons in any action for which indemnification is
sought; provided, however, that such counsel shall be satisfactory to the
Fiduciary Indemnified Persons. The Sponsor will not, without the prior written
consent of the Fiduciary Indemnified Persons, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification may be sought
unless such settlement, compromise or consent includes an unconditional release
of each Fiduciary Indemnified Person from all liability arising out of such
claim, action, suit or proceeding.
(d) The provisions of this Section 7 shall survive the
termination of this Declaration or the earlier resignation or removal of the
Fiduciary Indemnified Persons.
8. This Declaration shall be governed by, and construed
in accordance with, the laws of the State of Delaware (without regard to
conflict of laws principles).
9. This Declaration may be executed in one or more
counterparts.
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IN WITNESS WHEREOF, the parties hereto have caused this Declaration to
be duly executed as of the day and year first above written.
GREAT WOLF RESORTS, INC.,
as Sponsor
By: /s/ J. Xxxxxxx Xxxxxxxxx
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Name: J. Xxxxxxx Xxxxxxxxx
Title: Corporate Secretary and General
Counsel
WILMINGTON TRUST COMPANY,
as Property Trustee
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
/s/ J. Xxxxxxx Xxxxxxxxx
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J. Xxxxxxx Xxxxxxxxx
Administrative Trustee
/s/ Xxxxx X. Xxxxxx
--------------------------------------
Xxxxx X. Xxxxxx
Administrative Trustee
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