EXHIBIT 1.1
Great Wolf Resorts, Inc.
14,000,000 Shares
Common Stock
($0.01 par value)
Underwriting Agreement
New York, New York
__________ , 2004
Citigroup Global Markets Inc.
As Representative of the several Underwriters,
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Great Wolf Resorts, Inc., a corporation organized under the
laws of Delaware (the "Company"), proposes to sell to the several underwriters
named in Schedule I hereto (the "Underwriters"), for whom you (the
"Representative") are acting as representative, 14,000,000 shares of common
stock, $0.01 par value (the "Common Stock") of the Company (said shares to be
issued and sold by the Company being hereinafter called the "Underwritten
Securities"). The Company also proposes to grant to the Underwriters an option
to purchase up to 2,100,000 additional shares of Common Stock to cover
over-allotments (the "Option Securities"; the Option Securities, together with
the Underwritten Securities, being hereinafter called the "Securities"). To the
extent there are no additional Underwriters listed on Schedule I other than you,
the term Representative as used herein shall mean you, as Underwriter, and the
term Underwriters shall mean either the singular or plural as the context
requires. Certain terms used herein are defined in Section 17 hereof.
As part of the offering contemplated by this Agreement, the
Underwriters have agreed to reserve out of the Securities set forth opposite
their names on Schedule I to this Agreement, up to 700,000 shares, for sale by
Citigroup Global Markets Inc. to the Company's officers, directors, employees
and other related persons (collectively, "Participants"), as set forth in the
Prospectus under the heading "Underwriting" (the "Directed Share Program"). The
Securities to be sold pursuant to the Directed Share Program (the "Directed
Shares") will be sold by Citigroup Global Markets Inc. pursuant to this
Agreement at the public offering price. Any Directed Shares not orally confirmed
for purchase by any Participant by 8:00 A.M. New York City time on the business
day following the date on which this Agreement is executed will be offered to
the public by the Underwriters as set forth in the Prospectus.
At or prior to the Closing Date (as hereinafter defined), the
Company and The Great Lakes Companies, Inc., a Wisconsin corporation ("Great
Lakes"), the sole shareholder of the Company as of the date hereof, will
complete a series of transactions described in the Prospectus (as hereinafter
defined) under the heading "Structure and Formation of Our Company"
(collectively, such series of transactions, and any actions necessary for the
consummation of such transactions, being referred to herein as the "Formation
Transactions"). As part of the Formation Transactions, the Company will, as
described in the Prospectus, acquire indirectly through its newly-formed,
wholly-owned subsidiary, GWR Operating Partnership, L.L.L.P., a Delaware limited
liability limited partnership (the "OP"), all of the ownership interests in
certain entities listed on Schedule II-A hereto (collectively, the "Predecessor
Subsidiaries;" each, a "Predecessor Subsidiary"), which entities are currently
affiliated with Great Lakes. The subsidiaries of the Company prior to the
consummation of the Formation Transactions are listed on Schedule II-B hereto
(collectively, the "Subsidiaries;" each, a "Subsidiary"). With respect to
representations, warranties, covenants and opinions set forth in this Agreement
that relate to a time at or after the Closing Date, reference to "Subsidiaries"
shall mean the entities listed on Schedule II-C and there will be no Predecessor
Subsidiaries, as each will be merged out of existence on the Closing Date.
1. Representations and Warranties. Each of the Company and
Great Lakes jointly and severally, represents and warrants to, and agrees with,
each Underwriter as set forth below in this Section 1.
(a) The Company has prepared and filed with the
Commission a registration statement (file number 333-118148) on Form S-1,
including a related preliminary prospectus, for registration under the Act of
the offering and sale of the Securities. The Company may have filed one or more
amendments thereto, including a related preliminary prospectus, each of which
has previously been furnished to you. The Company will next file with the
Commission one of the following: (1) prior to the Effective Date of such
registration statement, a further amendment to such registration statement
(including the form of final prospectus) or (2) after the Effective Date of such
registration statement, a final prospectus in accordance with Rule 430A and Rule
424(b). In the case of clause (2), the Company has included in such registration
statement, as amended at the Effective Date, all information (other than Rule
430A Information) required by the Act and the Rules to be included in such
registration statement and the Prospectus. As filed, such amendment and form of
final prospectus, or such final prospectus, shall contain all Rule 430A
Information, together with all other such required information, and, except to
the extent the Representative shall agree in writing to a modification, shall be
in all substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond that contained in
the latest Preliminary Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein. The Registration Statement has
been declared effective by the Commission or, if applicable, has become
effective under the Act.
(b) On the Effective Date, the Registration Statement did
or will, and when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the
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Closing Date (as defined herein) and on any date on which Option Securities are
purchased, if such date is not the Closing Date (a "settlement date"), the
Prospectus (and any supplements thereto) will, comply in all material respects
with the applicable requirements of the Act and the Rules; on the Effective Date
and at the Execution Time, the Registration Statement did not or will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein not misleading; and, on the Effective Date, the Prospectus, if not filed
pursuant to Rule 424(b), will not, and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date and any settlement date, the Prospectus
(together with any supplement thereto) will not, include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company and Great Lakes make
no representations or warranties as to the information contained in or omitted
from the Registration Statement, or the Prospectus (or any supplement thereto)
in reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Representative
specifically for inclusion in the Registration Statement or the Prospectus (or
any supplement thereto).
(c) No stop order suspending the effectiveness of a
Registration Statement or any part thereof has been issued and no proceeding for
that purpose has been instituted or, to the knowledge of the Company, threatened
or contemplated by the Commission or by the state securities authority of any
jurisdiction. No order preventing or suspending the use of the Prospectus has
been issued and no proceeding for that purpose has been instituted or, to the
knowledge of the Company, threatened or contemplated by the Commission or by the
state securities authority of any jurisdiction.
(d) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own or lease its
properties, as the case may be, and to operate its properties and conduct its
business as described in the Prospectus and to enter into and perform its
obligations under this Agreement and other agreements related to the execution
and consummation of the Formation Transactions and listed on Schedule IV
attached hereto (collectively, the "Formation Agreements") to which the Company
is a party; the Formation Agreements listed on Schedule IV attached hereto
include all material documents required for the execution and consummation of
the Formation Transactions; and the Company is duly qualified to do business as
a foreign corporation and is in good standing in all other jurisdictions in
which its ownership or lease, and operation of property or the conduct of its
business requires such qualification, except where the failure to so qualify
would not have, individually or in the aggregate, a Material Adverse Effect. At
the Closing Date, (i) the OP will own, directly or indirectly, all of the member
interests in the Subsidiaries; (ii) the Company will own (a) all of the limited
partnership interests in the OP and (b) all of the member interests in GWR OP
General Partner, LLC (the "OP General Partner"); and (iii) OP General Partner
will be the sole general partner of the OP.
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(e) Each of Great Lakes, the Subsidiaries and the
Predecessor Subsidiaries has been duly formed and is validly existing as a
corporation, limited partnership, limited liability company or limited liability
limited partnership, as the case may be, in good standing under the laws of the
jurisdiction of its organization, with power and authority (corporate and other)
to own its assets and conduct its business as described in the Prospectus and to
enter into and to perform its obligations under this Agreement (in the case of
Great Lakes only) and the Formation Agreements to which it is a party; and is
duly qualified to do business as a foreign corporation, limited partnership,
limited liability company or limited liability limited partnership in good
standing in all other jurisdictions in which its ownership or lease or operation
of property or the conduct of its business requires such qualification, except
where the failure to so qualify would not have a Material Adverse Effect. The
entities listed on Schedule II-C attached hereto are or will be the only
subsidiaries of the Company as of the Closing Date.
(f) All of the issued and outstanding capital stock or
other ownership interests of each Subsidiary and Predecessor Subsidiary have
been duly authorized and validly issued and are fully paid and non-assessable
and except as described in the Prospectus, each Subsidiary's capital stock or
other ownership interests are owned by the Company, as applicable, directly or
through wholly-owned subsidiaries, free and clear of any security interests,
liens, mortgages, encumbrances, pledges, claims, defects or other restrictions
of any kind (collectively, "Liens"), except for liens securing indebtedness as
described in the Prospectus and except where such Liens would not have a
Material Adverse Effect. None of such equity interests were issued in violation
of any preemptive or other similar rights of any securityholder of such
Subsidiary. There are no outstanding options, rights (preemptive or otherwise)
or warrants to purchase or subscribe for equity interests or other securities of
any Subsidiary or Predecessor Subsidiary; except for the tenant in common
interests and profit interests set forth on Schedule III.
(g) The capital stock of the Company conforms in all
material respects to the description thereof contained in the Prospectus under
the caption "Description of Securities;" the authorized capitalization of the
Company, as of the Closing Date (assuming no Option Securities are purchased at
the Closing Date), will be as set forth in the Prospectus under the caption
"Capitalization." As of the Closing Date, the Company has no outstanding debt
other than as set forth in the Prospectus. Prior to the Closing Date, Great
Lakes was the sole holder of the outstanding capital stock of the Company. None
of the outstanding shares of capital stock of the Company were issued in
violation of any preemptive or other similar rights of any securityholder of the
Company. Except as disclosed in the Prospectus and except for shares of Common
Stock reserved for issuance in connection with the Company's 2004 incentive
stock plan described in the Prospectus (the "Stock Incentive Plan"), no shares
of Common Stock are reserved for any purpose; except (i) as disclosed in the
Prospectus, (ii) for options to purchase Common Stock under the Stock Incentive
Plan and (iii) for the tenant in common interests and profit interests set
forth on Schedule III, there are no outstanding securities convertible into or
exchangeable for any shares of Common Stock and there are no outstanding
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options, rights (preemptive or otherwise) or warrants to purchase or subscribe
for shares of Common Stock or any other securities of the Company.
(h) The Securities and all outstanding shares of capital
stock of the Company have been duly authorized; all outstanding shares of
capital stock of the Company are, and, when the Securities to be issued and sold
by the Company have been issued and delivered and paid for in accordance with
this Agreement on the Closing Date or settlement date, such Securities will have
been, validly issued, fully paid and non-assessable, have been, or will be,
offered and sold in compliance with all applicable laws in all material respects
and will conform, in all material respects, to the description thereof contained
in the Prospectus; and the stockholders of the Company have no preemptive rights
with respect to the Securities to be issued and sold by the Company. Upon
payment of the purchase price and issuance and delivery of the Securities to be
issued and sold by the Company in accordance herewith, the Underwriters will
receive good, valid and marketable title to such Securities free and clear of
all Liens. The certificates to be used to evidence the Securities will be in
substantially the form filed as an exhibit to the Registration Statement and
will, at the Closing Date or settlement date, be in proper form and will comply
in all material respects with all applicable legal requirements, the
requirements of the certificate of incorporation and bylaws of the Company and
the requirements of The Nasdaq Stock Market, Inc. (the "NASDAQ").
(i) There are no transfer taxes or other similar fees or
charges under Federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and delivery of
this agreement or the issuance by the Company or sale by the Company of the
Securities.
(j) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company or Great Lakes and
any person or entity that would give rise to a valid claim against the Company,
Great Lakes or any Underwriter for a brokerage commission, finder's fee or other
like payment in connection with this offering.
(k) Except for the registration rights agreement to be
entered into by the Company in connection with the Formation Transactions (the
"Registration Rights Agreement"), there are no contracts, agreements or
understandings between the Company and any person granting such person the right
to require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such person or
to require the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company under the Act.
(l) The shares of the Company's Common Stock to be issued
in connection with the consummation of the Formation Transactions (the
"Formation Stock") have been duly authorized, and, when issued in accordance
with the terms of the applicable Formation Agreements, will have been validly
issued and fully paid and nonassessable and free of any statutory preemptive
rights and similar rights that entitle or
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will entitle any person to acquire any capital stock upon the issuance thereof
by the Company; the Formation Stock has been and will be offered and sold in
compliance with all applicable corporate and Federal and state securities laws
and, to the Company's knowledge, all other applicable laws.
(m) All applicable filings or notices in connection with
the offer and issuance of the Formation Stock has been made or given as
required; the offer and issuance by the Company of the Formation Stock is exempt
from the registration requirements of Section 5 of the Act.
(n) None of the Company, Great Lakes, any Subsidiary or
any Predecessor Subsidiary (i) is in violation of its charter or bylaws or other
similar organization documents, (ii) is in default (whether with or without the
giving of notice or passage of time or both) in the performance or observance of
any obligation, agreement, term, covenant or condition contained in a contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease (under
which such entity is landlord, tenant or otherwise), ground lease (under which
such entity is tenant or landlord), development agreement, license agreement,
reciprocal easement agreement, deed restriction, utility agreement or other
agreement or instrument to which it is a party or by which it is bound, or to
which any of the Properties (as hereinafter defined) or any of its other
property or assets is subject (collectively, "Agreements and Instruments"),
(iii) is in violation of any statute, law, ordinance, rule, regulation,
judgment, order or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority to which it or the Properties
or any of its other properties or assets is subject except, in the case of
clauses (ii) and (iii), for such defaults or violations that would not have a
Material Adverse Effect.
(o) No consent, approval, authorization, or order of, or
filing or registration with, any governmental agency or body or any court or any
third party is required for the execution, delivery, performance or consummation
of the transactions contemplated by this Agreement or the Formation Agreements,
except such (i) as have been obtained and made under the Act, (ii) as may be
required under blue sky laws of any jurisdiction in connection with the purchase
and distribution of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Prospectus, (iii) consents, approvals,
authorizations, orders, filings or registrations that have been obtained or that
will be obtained or completed by the Closing Date or (iv) that the absence of
which would not, individually or in the aggregate, have a Material Adverse
Effect.
(p) The issue and sale of the Securities and execution,
delivery and performance of this Agreement and the Formation Agreements and the
consummation of the transactions contemplated herein and therein and in the
Registration Statement and the compliance by the Company, Great Lakes, such
Subsidiary and such Predecessor Subsidiary, as applicable, with its respective
obligations hereunder and thereunder have been duly authorized by all necessary
corporate or other action and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute or
result in a breach or violation of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any Lien upon any
property or
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assets of the Company, Great Lakes, any Subsidiary or any Predecessor Subsidiary
pursuant to, the Agreements and Instruments (except for Liens related to the
refinancing transactions described in the Prospectus and such conflicts,
breaches, violations, defaults or Repayment Events or Liens that would not have
a Material Adverse Effect), nor will such action result in any violation of the
provisions of (i) the charter or bylaws of the Company, Great Lakes, any
Subsidiary or any Predecessor Subsidiary or (ii) (except for such violations
that would not have a Material Adverse Effect) any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company, Great Lakes, the Subsidiaries or the Predecessor Subsidiaries, as
applicable or any of their assets, properties or operations. As used herein, a
"Repayment Event" means any event or condition that, without regard to
compliance with any notice or other procedural requirements, gives the holder of
any note, debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company, Great Lakes,
any Subsidiary or any Predecessor Subsidiary.
(q) This Agreement has been duly and validly authorized,
executed and delivered by the Company and Great Lakes, and assuming due
authorization, execution and delivery by the Representative, is a valid and
binding agreement of the Company and Great Lakes, enforceable against the
Company and Great Lakes, in accordance with its terms, except to the extent that
such enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent transfer, moratorium, reorganization or other similar laws now or
hereafter in effect relating to or affecting creditors' rights and general
principles of equity and except as rights to indemnification and contribution
thereunder may be limited by applicable law or policies underlying such law.
(r) At or immediately prior to the Closing Date, each of
the Formation Agreements and each material contract filed as an exhibit to the
Registration Statement that is not also a Formation Agreement will have been
duly and validly authorized, executed and delivered by the Company, Great Lakes,
one or more Subsidiaries or one or more Predecessor Subsidiaries, as applicable,
and, to the knowledge of the Company or Great Lakes, by each of the other
parties thereto (other than the Representative) and, assuming due authorization,
execution and delivery by such other parties, will be a valid and binding
agreement of the Company, Great Lakes, one or more Subsidiaries and one or more
Predecessor Subsidiaries, as applicable, enforceable against the Company, Great
Lakes, one or more Subsidiaries and one or more Predecessor Subsidiaries, as
applicable, in accordance with its terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
transfer, moratorium, reorganization or other similar laws now or hereafter in
effect relating to or affecting creditors' rights and general principles of
equity and except as rights to indemnification and contribution thereunder may
be limited by applicable law or policies underlying such law.
(s) The Company, Great Lakes, the Subsidiaries and the
Predecessor Subsidiaries possess all certificates, authorities, licenses,
consents, approvals, permits and other authorizations (collectively, the
"Licenses") issued by appropriate governmental agencies or bodies or third
parties necessary to conduct the business now operated by them or proposed to be
operated by them, are in compliance with the terms and
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conditions of all such Licenses and have not received any notice of proceedings
relating to the revocation or modification of any such Licenses, except where
the failure to possess any such License or to comply with any of its terms and
conditions, or an adverse determination in any proceeding, would not,
individually or in the aggregate, have a Material Adverse Effect.
(t) The historical balance sheet of the Company included
in the Registration Statement and the Prospectus, together with the related
note, presents fairly in all material respects the financial condition of the
Company as of the period indicated; said balance sheet has been prepared in
conformity with generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the period involved; said balance sheet has been
prepared on a consistent basis with the books and records of the Company. The
combined historical financial statements of Great Lakes Predecessor (as defined
in the Registration Statement) included in the Registration Statement and the
Prospectus, together with the related notes, present fairly in all material
respects the financial condition of Great Lakes Predecessor as of the periods
indicated, and the results of operations, stockholders' equity and cash flows of
Great Lakes Predecessor for the periods specified; said financial statements
have been prepared in conformity with GAAP applied on a consistent basis
throughout the periods involved (except as is indicated in the notes thereto and
subject to normal year-end adjustments in the case of unaudited interim
financial statements); said financial statements have been prepared on a
consistent basis with the books and records of Great Lakes Predecessor. The
historical combined financial statements of Great Bear Lodge of Wisconsin Dells,
LLC ("Wisconsin Dells LLC") and Great Bear Lodge of Sandusky, LLC ("Sandusky
LLC") included in the Registration Statement and the Prospectus, together with
the related notes, present fairly in all material respects the financial
condition of the combined operations of Wisconsin Dells LLC and Sandusky LLC as
of the periods indicated, and the results of operations, members' equity and
cash flows of the combined operations of Wisconsin Dells LLC and Sandusky LLC
for the periods specified; said financial statements have been prepared in
conformity with GAAP applied on a consistent basis throughout the periods
involved (except as is indicated in the notes thereto and subject to normal
year-end adjustments in the case of unaudited interim financial statements);
said financial statements have been prepared on a consistent basis with the
respective books and records of Wisconsin Dells LLC and Sandusky LLC. The
unaudited pro forma condensed consolidated financial statements and the related
notes thereto included in the Registration Statement and the Prospectus have
been prepared in accordance with the applicable accounting requirements under
the Act and the Commission's rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are reasonable and
provide a reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein, and the related
adjustments used therein give appropriate effect to the transactions and
circumstances referred to therein and the pro forma columns therein reflect the
proper application of these adjustments to the corresponding historical
financial statement amounts. The selected financial and other data and the
summary financial and other data included in the Prospectus and Registration
Statement under such captions present fairly the information shown therein and
have been compiled on a basis consistent with that of
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the audited and unaudited financial statements included in the Registration
Statement. Other than the historical and pro forma financial statements included
in the Registration Statement and Prospectus, no other historical or pro forma
financial statements (or schedules) are required by the Act and the Rules to be
included therein. All non-GAAP financial measures included in the Registration
Statement and Prospectus comply with the Act, including Regulation G and Item
10(e) of Regulation S-K, and present fairly the information shown therein and
the Company's basis for using such measures.
(u) Deloitte & Touche LLP is an independent registered
public accounting firm, as defined by the Exchange Act and the Public Company
Accounting Oversight Board (United States), with respect to the Company and the
"Great Lakes Predecessor" (as such term is defined in the Prospectus); Rubin,
Brown, Gornstein & Co. LLP is an independent registered public accounting firm,
as defined by the Exchange Act and the Public Company Accounting Oversight Board
(United States), with respect to Wisconsin Dells LLC and Sandusky LLC.
(v) The Company, Great Lakes, the Subsidiaries and the
Predecessor Subsidiaries have filed all foreign, federal, state and local tax
returns that are required to be filed or have in good faith requested extensions
for the filing thereof (except in any case in which the failure so to file would
not have a Material Adverse Effect); except as set forth in or contemplated in
the Prospectus (exclusive of any supplement thereto), all such returns are true,
correct and complete in all material respects; each of the Company, Great Lakes,
the Subsidiaries and the Predecessor Subsidiaries has paid all taxes required to
be paid by it and any other assessment or similar payments, fine or penalty
levied against it, to the extent that any of the foregoing is due and payable,
except for any such assessment, fine or penalty that (i) is currently being
contested in good faith, (ii) would not have a Material Adverse Effect, or (iii)
is described in or contemplated in the Prospectus (exclusive of any supplement
thereto). No audits or other administrative proceedings or court proceedings are
presently pending nor threatened against the Company, Great Lakes, any of the
Subsidiaries or any of the Predecessor Subsidiaries with regard to any taxes or
returns of such entities, and no taxing authority has notified the Company,
Great Lakes, any of the Subsidiaries or any of the Predecessor Subsidiaries in
writing that it intends to investigate its tax affairs. Except as disclosed in
the Prospectus (exclusive of any supplement thereto), to the knowledge of the
Company or Great Lakes, there is no pending or threatened special assessment,
tax reduction proceeding or other action which could increase or decrease the
real property taxes or assessments of any Property, which, individually or in
the aggregate, would have a Material Adverse Effect.
(w) Except for materials distributed in conformity with
certain exemptions from registration under the Act in connection with
transactions contemplated by the Formation Agreements, the Company, its
Subsidiaries, Great Lakes and the Predecessor Subsidiaries have not distributed,
and prior to the later of the Closing Date and the completion of the
distribution of the Securities, will not distribute, any offering material in
connection with the offering or sale of the Securities other than the
Registration Statement, the Prospectus or any other materials, if any, permitted
by the Act (which were disclosed prior to their distribution to the
Representative and its counsel) (it
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being understood that no representation is made with respect to any other
materials distributed by the Representative).
(x) Each of the Company, Great Lakes, the Subsidiaries
and the Predecessor Subsidiaries is in compliance, in all material respects,
with all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the final regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in ERISA) for
which the Company, Great Lakes, any of the Subsidiaries or any of the
Predecessor Subsidiaries has any liability; none of the Company, Great Lakes,
the Subsidiaries or the Predecessor Subsidiaries has incurred or expects to
incur liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" (as defined in ERISA) or (ii) Sections 412
or 4971 of the Code including the final regulations and published
interpretations thereunder; and each "pension plan" (as defined in ERISA) for
which the Company or any of its Subsidiaries would have any liability and that
is intended to be qualified under Section 401(a) of the Code is a proto-type
plan that has an opinion letter from the Internal Revenue Service that opines as
to the "GUST" law changes, and such pension plan has been operated in material
compliance with Section 401(a) of the Code except where such non-compliance,
reportable events or liabilities would not have a Material Adverse Effect.
(y) To the knowledge of the Company, the assets of the
Company and its Subsidiaries do not constitute "plan assets" of an ERISA
regulated employee benefit plan (as the term "plan assets" is defined in the
regulations under ERISA).
(z) (i) Upon consummation of the Formation Transactions,
the Company and its Subsidiaries will have good and marketable title in fee
simple title (or in the case of the resort in Sheboygan, Wisconsin [AND THE
RESORT IN KANSAS CITY, KANSAS,] a leasehold interest) to all of the properties
and other assets described in the Prospectus to be owned or leased by the
Company or its Subsidiaries as of the Closing Date (the "Properties"), in each
case, free and clear of all Liens, except (A) as set forth in the title reports
set forth on Schedule V hereto, (B) as disclosed in the Prospectus or (C) such
as would not have a Material Adverse Effect; (ii) all Liens on or affecting the
Properties that are required to be disclosed in the Prospectus are disclosed
therein and none of the Company, Great Lakes, the Subsidiaries or the
Predecessor Subsidiaries is in default under any such Lien; (iii) to their
knowledge, none of the Company, Great Lakes, the Subsidiaries or the Predecessor
Subsidiaries are in violation of any municipal, state or federal law, rule or
regulation concerning the Properties or any part thereof which violation would
have a Material Adverse Effect; (iv) each of the Properties complies with all
applicable zoning laws, occupancy laws, laws, ordinances, regulations,
development agreements, reciprocal easement agreements, ground or airspace
leases and deed restrictions or other covenants, except where the failure to
comply would not result in a Material Adverse Effect or could not result in a
forfeiture or reversion of title; and (v) none of the Company, Great Lakes, the
Subsidiaries or the Predecessor Subsidiaries have received from any governmental
authority any written notice of any condemnation of or zoning
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change materially affecting the Properties or any part thereof, and none of the
Company, Great Lakes, the Subsidiaries or the Predecessor Subsidiaries knows of
any such condemnation or zoning change that is threatened and that, if
consummated, would have a Material Adverse Effect. Each of the Company, Great
Lakes, the Subsidiaries and the Predecessor Subsidiaries owns or leases all such
properties as are necessary to the conduct of its operations as presently
conducted or as proposed to be conducted (other than with respect to future
resort developments) in the Prospectus.
(aa) Water, sanitary sewer, electricity and telephone
service necessary to the conduct of its operations as presently conducted or as
proposed to be conducted in the Prospectus are all available at each Property
and, to the knowledge of the Company and Great Lakes, are located on each
Property or over duly dedicated streets or perpetual easements of record
benefiting each Property or other enforceable rights that allow access to each
Property. There exists no restriction, prohibition or moratorium on the right of
the owner of each Property to access all such utilities, nor, to the knowledge
of the Company and Great Lakes, any condition that the owner of each Property
construct or improve utility facilities or lines not on such Property as a
condition to the availability thereof, except such restriction, prohibition,
moratorium or condition that would not have a Material Adverse Effect.
(bb) The Company, Great Lakes, the Subsidiaries and the
Predecessor Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
generally deemed prudent and customary in the businesses in which they are or
will be engaged as described in the Prospectus; all policies of insurance and
fidelity or surety bonds insuring the Company, Great Lakes, the Subsidiaries and
the Predecessor Subsidiaries or their respective businesses, assets, employees,
officers and directors are in full force and effect; each of the Company, Great
Lakes, the Subsidiaries and the Predecessor Subsidiaries is in compliance with
the terms of such policies and instruments in all material respects; there are
no material claims by the Company, Great Lakes, any of the Subsidiaries or any
of the Predecessor Subsidiaries under any such policy or instrument as to which
any insurance company is denying liability or defending under a reservation of
rights clause; none of the Company, Great Lakes, the Subsidiaries or the
Predecessor Subsidiaries have been refused any insurance coverage sought or
applied for in the 12 months prior to the date hereof; and to the knowledge of
the Company, the Company, Great Lakes, the Subsidiaries or the Predecessor
Subsidiaries will be able to obtain insurance coverage substantially similar in
all material respects to the current coverage as and when such coverage expires
from similar insurers as may be necessary to continue to conduct business as
currently conducted or as proposed to be conducted in the Prospectus without an
increase in cost that would have a Material Adverse Effect, except as set forth
or contemplated in the Prospectus (exclusive of any supplement thereto).
(cc) Except as set forth in the Registration Statement and
the Prospectus, the mortgages and deeds of trust encumbering the Properties and
assets are described in the Prospectus and are not convertible and none of the
Company, Great Lakes, the Subsidiaries or the Predecessor Subsidiaries or any
person affiliated therewith holds a participating interest therein, and such
mortgages and deeds of trust are not cross-
11
defaulted or cross-collateralized to or from any property not owned directly or
indirectly by the Company, the Subsidiaries, Great Lakes or the Predecessor
Subsidiaries.
(dd) Except as described or referred to in the Prospectus,
at the Closing Date, the Company, Great Lakes, the Subsidiaries or the
Predecessor Subsidiaries, as applicable, will have title insurance on the fee
interests and/or leasehold interests (in the case of a ground lease interest) in
each of the Properties covering such risks and in such amounts as are
commercially reasonable for the assets owned or leased by them and for the type
of business conducted or to be conducted, and in each case such title insurance
will be in full force and effect. None of the Company, Great Lakes, the
Subsidiaries or the Predecessor Subsidiaries have any reason to believe that any
of them will not be able to obtain title insurance coverage as may be necessary
to continue to conduct business as currently conducted.
(ee) The Company, Great Lakes, the Subsidiaries and the
Predecessor Subsidiaries are, to the Company's knowledge after due inquiry, (i)
in compliance with all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety from hazardous
or toxic substances or wastes, pollutants or contaminants, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received and are in compliance with all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have not
received written notice of any actual or potential liability under any
Environmental Laws, except where such non-compliance with Environmental Laws,
failure to receive or comply with required permits, licenses or other approvals,
or liability would not, individually or in the aggregate, have a Material
Adverse Effect, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto). Except as set forth in the Prospectus,
none of the Company, Great Lakes, the Subsidiaries or the Predecessor
Subsidiaries have been formally designated as a "potentially responsible party"
by the United States Environmental Protection Agency under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended.
(ff) In the ordinary course of its business, the Company
periodically reviews the effect of Environmental Laws on the business,
operations and properties of the Company and the Subsidiaries and Great Lakes
periodically reviews the effect of Environmental Laws on the business,
operations and properties of Great Lakes and the Predecessor Subsidiaries. In
the course of such review each identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws, or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties). On the
basis of such review, the Company and Great Lakes have reasonably concluded that
such associated costs and liabilities would not, singly or in the aggregate,
have a Material Adverse Effect, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
(gg) None of the environmental consultants that prepared
any of the environmental reports with respect to any of the Properties were
employed by the
12
Company or its affiliates for such purpose on a contingent basis or, to the
knowledge of the Company or Great Lakes, had, at the time of retention, any
substantial interest in any of the Company, Great Lakes, the Subsidiaries or the
Predecessor Subsidiaries, and to the knowledge of the Company or Great Lakes,
none of such consultants or any of their directors, officers or employees is
connected with any of the Company, Great Lakes, the Subsidiaries or the
Predecessor Subsidiaries as a promoter, selling agent, managing member,
director, officer or employee.
(hh) The Securities have been approved for listing on
NASDAQ subject to official notice of issuance; such approval was obtained by the
Company prior to the distribution of the Preliminary Prospectus.
(ii) No labor dispute with the employees of any of the
Company, Great Lakes, the Subsidiaries or the Predecessor Subsidiaries exists
or, to the knowledge of the Company or Great Lakes, is threatened or imminent,
and neither the Company nor Great Lakes is aware of any existing or imminent
labor disturbance by the employees of any of its, the Subsidiaries' or the
Predecessor Subsidiaries' principal suppliers, developers, designers,
contractors, business partners, or customers that would have a Material Adverse
Effect, except as set forth in or contemplated by the Prospectus (exclusive of
any supplement thereto).
(jj) The Company, Great Lakes, the Subsidiaries and the
Predecessor Subsidiaries own, possess, license or have or can acquire (with
respect to future operations of the Company) other rights to use, on reasonable
terms, all patents, patent applications, trade and service marks, trade and
service xxxx registrations, trade names, copyrights, licenses, development
rights, inventions, trade secrets, technology, know-how and other property
(collectively, the "Intellectual Property") necessary to conduct the business of
the Company as presently conducted or as proposed in the Prospectus to be
conducted. Except as set forth in the Prospectus (exclusive of any supplement
thereto) or as would not have a Material Adverse Effect, (i) to the knowledge of
the Company or Great Lakes, there are no rights of third parties to any such
Intellectual Property; (ii) to the knowledge of the Company or Great Lakes,
there is no material infringement by third parties of any such Intellectual
Property; (iii) there is no pending or, to the knowledge of the Company or Great
Lakes, threatened action, suit, proceeding or claim by others challenging the
Company's or Great Lakes' rights in or to any such Intellectual Property, and
neither the Company nor Great Lakes is aware of any facts which would form a
reasonable basis for any such claim; (iv) there is no pending or, to the
knowledge of the Company or Great Lakes, threatened action, suit, proceeding or
claim by others challenging the validity or scope of any such Intellectual
Property, and neither the Company nor Great Lakes is aware of any facts which
would form a reasonable basis for any such claim; and (v) there is no pending
or, to the knowledge of the Company or Great Lakes, threatened action, suit,
proceeding or claim by others that the Company or Great Lakes infringed or
otherwise violated any patent, trademark, copyright, trade secret or other
proprietary rights of others, and neither the Company nor Great Lakes is aware
of any other fact which would form a reasonable basis for any such claim.
13
(kk) Except as disclosed in the Prospectus (exclusive of
any supplement thereto), there is no pending action, suit or proceeding against
or affecting any of the Company, Great Lakes, the Subsidiaries or the
Predecessor Subsidiaries or any of the Properties or other assets that, if
determined adversely to such entity, would have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company or Great Lakes,
as applicable, to perform its obligations under this Agreement; and no such
action, suit or proceeding is, to the Company's or Great Lakes' knowledge,
threatened or contemplated.
(ll) Except as disclosed in the Prospectus, since the date
of the latest financial statements included in the Prospectus, (i) there has
been no Material Adverse Effect on the Company, Great Lakes, the Predecessor
Subsidiaries and the Subsidiaries, taken as a whole; (ii) there have been no
transactions entered into by the Company, any of the Subsidiaries, Great Lakes
or any of the Predecessor Subsidiaries that are material with respect to the
Company, the Subsidiaries, Great Lakes and the Predecessor Subsidiaries, taken
as a whole; (iii) none of the Company, any of the Subsidiaries, Great Lakes or
any of the Predecessor Subsidiaries have incurred any obligation or liability,
direct, contingent or otherwise that is or would be material to the Company, the
Subsidiaries, Great Lakes and the Predecessor Subsidiaries, taken as a whole;
and (iv) there has been no dividend or distribution of any kind declared, paid
or made by the Company, Great Lakes, the Subsidiaries or the Predecessor
Subsidiaries on any class of their respective capital stock or other ownership
interests.
(mm) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds thereof
as described in the Prospectus, the Company will not be, an "investment company"
as defined in the Investment Company Act of 1940, as amended.
(nn) There is no contract or other document required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit thereto, which is not described or has not been filed as required; the
statements in the Prospectus under the headings: "Business-Government
Regulation," Business-Environmental Matters," "Business-Development-Tall
Pines Development Agreement," "Management-Executive Officer Compensation -
401(k) Plan," "-2004 Incentive Stock Plan," "-Deferred Compensation Plan,"
"Certain Relationships and Related Transactions-Registration Rights,"
"Description of Securities," and "Shares Eligible for Future Sale," insofar as
such statements summarize legal matters, agreements, documents or proceedings
discussed therein, are accurate and fair summaries of such legal matters,
agreements, documents and proceedings.
(oo) No relationship, direct or indirect, exists between
or among any of the Company, Great Lakes, the Subsidiaries or the Predecessor
Subsidiaries on the one hand, and the directors, officers, stockholders,
interest holders, members, partners, other employees or their respective
affiliates or customers or suppliers of the Company,
14
Great Lakes, the Subsidiaries or the Predecessor Subsidiaries on the other hand,
which is required pursuant to the Act to be described in the Prospectus that is
not so described.
(pp) The Company solely determined, without any direct or
indirect participation by the Underwriters, the persons who will purchase shares
of Common Stock (including the amounts to be purchased by such persons) sold in
the offering by Citigroup Global Markets Inc. pursuant to the Directed Share
Program.
(qq) Each of the Company, Great Lakes, the Subsidiaries
and the Predecessor Subsidiaries (i) makes and keeps books and records that are
accurate in all material respects and (ii) maintains internal accounting
controls that provide reasonable assurance that (A) transactions are executed in
accordance with management's authorization, (B) transactions are recorded as
necessary to permit preparation of its financial statements in conformity with
GAAP and to maintain accountability for its assets, (C) access to its assets is
permitted only in accordance with management's authorization, and (D) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to
differences, if any.
(rr) None of the Company, Great Lakes, the Subsidiaries or
the Predecessor Subsidiaries or, to the knowledge of the Company or Great Lakes,
any director, officer, agent, employee or affiliate of such entities is aware of
or has taken any action, directly or indirectly, that would result in a
violation by such Persons of the FCPA, including, without limitation, making use
of the mails or any means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization of the payment
of any money, or other property, gift, promise to give, or authorization of the
giving of anything of value to any "foreign official" (as such term is defined
in the FCPA) or any foreign political party or official thereof or any candidate
for foreign political office, in contravention of the FCPA and the Company,
Great Lakes, the Subsidiaries and the Predecessor Subsidiaries and, to the
knowledge of the Company or Great Lakes, their affiliates have conducted their
businesses in compliance with the FCPA. "FCPA" means Foreign Corrupt Practices
Act of 1977, as amended, and the rules and regulations thereunder.
(ss) Except as disclosed in the Registration Statement and
the Prospectus, the Company, Great Lakes, the Subsidiaries and the Predecessor
Subsidiaries (i) do not have any material lending or other relationship with any
bank or lending affiliate of the Representative and (ii) do not intend to use
any of the proceeds from the sale of the Securities hereunder to repay any
outstanding debt owed to any affiliate of the Representative.
(tt) None of the Company, Great Lakes or any of their
respective officers, directors, members or controlling persons has taken, or
will take, directly or indirectly, any action designed to or that might
reasonably be expected to result in a violation of Regulation M under the
Exchange Act or cause or result in stabilization or
15
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities.
(uu) The Company intends to apply the net proceeds from
the sale of the Securities being sold by the Company substantially in accordance
with the description set forth in the Prospectus under the heading "Use of
Proceeds."
(vv) Each Subsidiary or Predecessor Subsidiary that is a
partnership or a limited liability company has been properly classified either
as a partnership or as an entity disregarded as separate from the Company or
Great Lakes, respectively, for federal income tax purposes during its existence.
Great Lakes has been a validly electing S corporation within the meaning of
Sections 1361 and 1362 of the Code at all times during its existence and,
subject to the termination of its S corporation status as a result of the
Formation Transactions, Great Lakes will be an S corporation up to and including
the Closing Date. Neither Great Lakes nor any of its subsidiaries holds any
asset the disposition of which could be subject to tax under Section 1374 of the
Code.
(ww) No Subsidiary or Predecessor Subsidiary is currently
prohibited, directly or indirectly, from paying any dividends or distributions
to the Company or Great Lakes, as applicable, from making any other distribution
on such entity's capital stock or other ownership interests, from repaying to
the Company or Great Lakes, as applicable, any loans or advances made by the
Company or Great Lakes, as applicable, to such entity.
(xx) There is and has been no failure on the part of the
Company and any of the Company's directors or officers, in their capacities as
such, to comply in all material respects with any applicable provision of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in
connection therewith (the "Xxxxxxxx-Xxxxx Act"), including Section 402 thereof.
(yy) The operations of the Company, Great Lakes, the
Subsidiaries and the Predecessor Subsidiaries are and have been conducted at all
times in compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all applicable jurisdictions, the
rules and regulations thereunder and any related or similar applicable rules,
regulations or guidelines, issued, administered or enforced by any governmental
agency (collectively, the "Money Laundering Laws") except where such
non-compliance as would not have a Material Adverse Effect, and no action, suit
or proceeding by or before any court or governmental agency, authority or body
or any arbitrator involving the Company or any of its Subsidiaries with respect
to the Money Laundering Laws is pending or, to the best knowledge of the
Company, threatened.
(zz) The solicitation of consents pursuant to the
Solicitation of Consents and Private Placement Memorandum for Combination of
Certain Businesses of the Great Lakes Companies, Inc. and Offering of Common
Stock of Great Wolf Resorts, Inc., dated July 26, 2004 (the "SCPPM") complied
with (i) the terms and provisions of the applicable operating agreement and (ii)
the laws of the state of organization or
16
formation of each entity, as applicable; the requisite consents of the members
necessary for the consummation of the merger transactions contemplated in the
Formation Agreements as described in the Prospectus have been obtained and are
irrevocable.
(aaa) As of the Closing Date, each of the Articles of
Merger and Certificates of Merger necessary to consummate the Formation
Transactions will be or have been filed with the Secretary of State of the
States of Delaware and Wisconsin, and the mergers described therein will be or
are effective under Delaware law and Wisconsin law, as applicable.
Furthermore, the Company represents and warrants to Citigroup Global
Markets Inc. that (i) the Registration Statement, the Prospectus and any
preliminary prospectus comply, and any further amendments or supplements thereto
will comply, with any applicable laws or regulations of foreign jurisdictions in
which the Prospectus or any preliminary prospectus, as amended or supplemented,
if applicable, are distributed in connection with the Directed Share Program,
and that (ii) no authorization, approval, consent, license, order, registration
or qualification of or with any government, governmental instrumentality or
court, other than such as have been obtained, is necessary under the securities
laws and regulations of foreign jurisdictions in which the Directed Shares are
offered outside the United States. The Company has not offered, or caused the
Underwriters to offer, any Securities to any person pursuant to the Directed
Share Program with the specific intent to unlawfully influence (i) a customer or
supplier of the Company to alter the customer's or supplier's level or type of
business with the Company or (ii) a trade journalist or publication to write or
publish favorable information about the Company or its products.
Any certificate signed by any officer of the Company or Great Lakes and
delivered to the Representative or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company or Great Lakes as to matters covered thereby to each
Underwriter. The Company or Great Lakes will furnish the Representative with
such conformed copies of such opinions, certificates, letters and documents as
the Representative reasonably requests.
2. Purchase and Sale. (a) Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
$ ______ per share, the amount of the Underwritten Securities set forth opposite
such Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company hereby grants
an option to the several Underwriters to purchase, severally and not jointly, up
to 2,100,000 Option Securities at the same purchase price per share as the
Underwriters shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised, in whole or in
part, at any time on or before the 30th day after the date of the Prospectus
upon written notice by the Representative to the Company
17
setting forth the number of shares of the Option Securities as to which the
several Underwriters are exercising the option and the settlement date. The
number of Option Securities to be purchased by each Underwriter shall be the
same percentage of the total number of shares of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of the
Underwritten Securities, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made at the offices of King & Spalding
LLP, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 at 10:00 AM, New York City
time, on ________, 2004, or at such time on such later date not more than three
Business Days after the foregoing date as the Representative and the Company
shall determine, which date and time may be postponed by agreement between the
Representative and the Company or as provided in Section 9 hereof (such date and
time of delivery and payment for the Securities being herein called the "Closing
Date"). Delivery of the Securities shall be made to the Representative for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representative of the purchase price thereof to or upon
the order of the Company by wire transfer payable in same-day funds to an
account specified by the Company. Delivery of the Underwritten Securities and
the Option Securities shall be made through the facilities of The Depository
Trust Company unless the Representative shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Company will deliver
the Option Securities (at the expense of the Company) to the Representative, at
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the date specified by the
Representative (which shall be within three Business Days after exercise of said
option) for the respective accounts of the several Underwriters, against payment
by the several Underwriters through the Representative of the purchase price
thereof to or upon the order of the Company by wire transfer payable in same-day
funds to an account specified by the Company. If settlement for the Option
Securities occurs after the Closing Date, the Company will deliver to the
Representative on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become
18
effective. Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or supplement
to the Prospectus or any Rule 462(b) Registration Statement unless the Company
has furnished you a copy for your review prior to filing and will not file any
such proposed amendment or supplement to which you reasonably object. Subject to
the foregoing sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Prospectus is otherwise
required under Rule 424(b), the Company will cause the Prospectus, properly
completed, and any supplement thereto to be filed in a form approved by the
Representative with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed and will provide evidence satisfactory
to the Representative of such timely filing. The Company will promptly advise
the Representative (i) when the Registration Statement, if not effective at the
Execution Time, shall have become effective, (ii) when the Prospectus, and any
supplement thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall
have been filed with the Commission, (iii) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement shall
have been filed or become effective, (iv) of any request by the Commission or
its staff for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Prospectus or for any
additional information, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (vi) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the institution or threatening
of any proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Prospectus to comply with the Act, the Company
promptly will (i) notify the Representative of any such event, (ii) prepare and
file with the Commission, subject to the second sentence of paragraph (a) of
this Section 5, an amendment or supplement that will correct such statement or
omission or effect such compliance; and (iii) supply any supplemented Prospectus
to you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representative an earnings
statement or statements of the Company and its subsidiaries which will satisfy
the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representative and counsel
for the Underwriters signed copies of the Registration Statement (including
exhibits thereto) and
19
to each other Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, as many copies of each Preliminary Prospectus and
the Prospectus and any supplement thereto as the Representative may reasonably
request. The Prospectus shall be so furnished on or prior to 3:00 P.M., New
York time, on the business day following the later of Execution Time or the
Effective Date of the Registration Statement. All other documents shall be so
furnished as soon as available. The Company will pay the expenses of printing
and distributing to the Underwriters all such documents. The aforementioned
documents furnished to the Underwriters or to any dealer shall be identical to
the electronically transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
(e) During the period from the date of this agreement through
the five year anniversary hereof, the Company will furnish upon request to the
Representative and, upon request, to each of the other Underwriters, as soon as
practicable after the end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Company will furnish upon request to the
Representative as soon as available, a copy of each report and any definitive
proxy statement of the Company filed with the Commission under the Exchange Act
or mailed to stockholders.
(f) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such jurisdictions as
the Representative may designate and will maintain such qualifications in effect
so long as required for the distribution of the Securities; provided, however,
that in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not now so
subject.
(g) For a period of 180 days after the date of this Agreement,
the Company will not, without the prior written consent of the Representative,
offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into
any transaction that is designed to, or might reasonably be expected to, result
in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any affiliate
of the Company or any person in privity with the Company or any affiliate of the
Company) directly or indirectly, including the filing (or participation in the
filing) of a registration statement with the Commission (except a registration
statement on (i) Form S-8 relating to the 2004 Stock Incentive Plan or (ii) on
Form S-1 relating to the resale of Formation Stock in respect of, or establish
or increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act, any other shares
of Common Stock or any securities convertible into, or exercisable, or
exchangeable for, shares of Common Stock; or publicly announce an intention to
effect any such transaction; provided, however, that the Company may (x) grant
stock options, Common Stock or restricted stock pursuant to the 2004 Incentive
Stock Plan and (y) grant Common Stock to any deferred compensation plan or a
trust that holds assets on behalf of such deferred compensation plan.
20
(h) The Company will use its best efforts to effect the
listing of the Common Stock (including the Securities) on NASDAQ.
(i) For a period of one year after the date of this Agreement,
the Company will comply in all material respects with all applicable securities
and other applicable laws, rules and regulations, including, without limitation,
the Xxxxxxxx-Xxxxx Act, and will use its best efforts to cause the Company's
directors and officers, in their capacities as such, to comply with such laws,
rules and regulations, including, without limitation, the provisions of the
Xxxxxxxx-Xxxxx Act.
(j) The Company will not take, directly or indirectly, any
action designed to, or that would constitute, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(k) The Company will take such steps as shall be necessary to
ensure that it shall not become an "investment company" within the meaning of
such term under the Investment Company Act of 1940, as amended, and the rules
and regulations of the Commission thereunder.
(l) The Company will use commercially reasonable efforts to
(i) complete the construction of the Great Wolf Lodges in Williamsburg, Virginia
and Pocono Mountains of Pennsylvania and consummate the transactions related to
the Great Wolf Lodge in Niagara Falls, Ontario in accordance with the
description and within the time frame set forth in the Prospectus and (ii)
complete all Formation Transactions (except for the registration of any shares
of Common Stock pursuant to the Registration Rights Agreement filed as an
exhibit to the Registration Statement) on or prior to the Closing Date.
(m) The Company agrees to pay the costs and expenses incident
to the performance of its obligations under this Agreement, relating to the
following matters: (i) the preparation, printing or reproduction and filing with
the Commission of the Registration Statement (including financial statements and
exhibits thereto), each Preliminary Prospectus, the Prospectus, and each
amendment or supplement to any of them; (ii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and
packaging) of such copies of the Registration Statement, each Preliminary
Prospectus, the Prospectus, and all amendments or supplements to any of them, as
may, in each case, be reasonably requested for use in connection with the
offering and sale of the Securities; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Securities,
including any stamp or transfer taxes in connection with the original issuance
and sale of the Securities; (iv) the printing (or reproduction) and delivery of
this Agreement, any blue sky memorandum and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering of the
Securities; (v) the registration of the
21
Securities under the Exchange Act and the listing of the Securities on the
NASDAQ; (vi) any registration or qualification of the Securities for offer and
sale under the securities or blue sky laws of the several states (including
filing fees and the reasonable fees and expenses of counsel for the Underwriters
relating to such registration and qualification in an amount not to exceed
$10,000); (vii) any filings required to be made with the National Association of
Securities Dealers, Inc. ("NASD") (including filing fees and the reasonable fees
and expenses of counsel for the Underwriters related to such filings in an
amount not to exceed $25,000); (viii) the transportation, lodging, meals,
materials and other expenses incurred by or on behalf of the Company's
representatives in connection with attending or hosting meetings or
presentations to prospective purchasers of the Securities; (ix) the fees and
expenses of the Company's accountants, counsel (including local and special
counsel) and transfer agent and registrar for the Company; (x) consummation of
the Formation Transactions and (xi) all other costs and expenses incident to the
performance by the Company of its obligations hereunder.
(n) The Company shall pay (i) all reasonable fees and
disbursements of counsel incurred by Citigroup Global Markets Inc. in connection
with the Directed Share Program, (ii) all costs and expenses incurred by
Citigroup Global Markets Inc. in connection with the printing (or reproduction)
and delivery (including postage, air freight charges and charges for counting
and packaging) of such copies of the Directed Share Program material and (iii)
stamp duties, similar taxes or duties or other taxes, if any, incurred by
Citigroup Global Markets Inc. in connection with the Directed Share Program.
(o) For a period of 180 days after the Closing Date, the
Company shall neither (i) amend its bylaws in any way that would alter or affect
Article V, Section 3 thereof nor (ii) waive any restriction or limitation
provided for in such Section without the prior written consent of the
Representative.
Furthermore, the Company covenants with Citigroup Global Markets Inc.
that the Company will comply in all material respects with all applicable
securities and other applicable laws, rules and regulations in each jurisdiction
in which the Directed Shares are offered in connection with the Directed Share
Program.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwritten Securities and the
Option Securities, as the case may be, shall be subject to (i) the accuracy of
the representations and warranties on the part of the Company contained herein
as of the Execution Time, the Closing Date and any settlement date pursuant to
Section 3 hereof, (ii) the accuracy of the representations and warranties on the
part of Great Lakes contained herein as of the Execution Time and a time
immediately prior to the Closing Date, (iii) the accuracy of the statements of
the Company and Great Lakes made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representative agrees in writing to a
later time, the Registration Statement will become effective not later than (i)
6:00 PM New York City
22
time on the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time on such date or
(ii) 9:30 AM on the Business Day following the day on which the public offering
price was determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement, will
be filed in the manner and within the time period required by Rule 424(b); and
no stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been instituted
or, to the knowledge of the Company, shall be threatened or contemplated by the
Commission.
(b) The Company shall have requested and caused King &
Spalding LLP, counsel for the Company, to have furnished to the Representative
their opinion, dated as of the Closing Date and each settlement date, addressed
to the Representative and in a form satisfactory to the Underwriters' counsel,
to the effect that:
(i) each of the Company and the Subsidiaries has been
duly formed or incorporated, and each of the Company, Great
Lakes, the Subsidiaries and the Predecessor Subsidiaries is
validly existing as a limited liability company, partnership
or corporation in good standing under the laws of the state of
its formation or organization and is duly qualified to do
business as a foreign corporation, partnership or limited
liability company and is in good standing under the laws of
each jurisdiction set forth on a schedule to such opinion,
with limited liability company, partnership or corporate, as
applicable, power and authority to own or lease, as the case
may be, and to operate its properties and conduct its business
as now being conducted and as described in the Prospectus and
to enter into and perform its obligations under this Agreement
(with respect to the Company and Great Lakes only), each
Formation Agreement and each agreement set forth on a schedule
to such opinion; each Formation Agreement and each agreement
set forth on a schedule to such opinion has been duly
authorized, and (except for the Formation Agreements set forth
on a schedule related to Blue Harbor Resort Condominium LLC)
executed and delivered by the Company, Great Lakes, the
Subsidiaries and the Predecessor Subsidiaries, as applicable,
and assuming due authorization, execution and delivery by the
other parties, if any, thereto, constitutes a valid and
binding agreement, enforceable in accordance with its terms;
provided, however, that such counsel need not express an
opinion as to (A) the effect of applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or
other similar federal or state laws affecting the rights of
creditors generally, or (B) the effect or availability of
rules of law governing specific performance, injunctive
relief, fraudulent conveyance or transfer, or other equitable
remedies (regardless of whether any such remedy is considered
in a proceeding at law or in equity);
23
(ii) this Agreement has been duly authorized,
executed and delivered by the Company and Great Lakes;
(iii) the Company's authorized capital stock is as
set forth in the Prospectus under the caption "Description of
Securities;" the capital stock of the Company conforms in all
material respects to the description thereof contained in the
Prospectus; all the shares of capital stock of the Company
outstanding prior to (or issued concurrent with) the issuance
of the Securities (including, without limitation, shares of
Formation Stock) have been duly authorized and validly issued,
are fully paid and nonassessable and free of any statutory
preemptive rights and, except as set forth in the Prospectus
and to the knowledge of such counsel, similar rights that
entitle or will entitle any person to acquire any Common Stock
upon the issuance thereof by the Company;
(iv) all of the issued and outstanding shares of
capital stock or ownership interests, as applicable, of each
Subsidiary have been duly authorized and validly issued and
are fully paid and nonassessable; and except as described in
the Prospectus, the outstanding shares of capital stock or
other ownership interests of the Subsidiaries are owned,
directly or indirectly, by the Company free and clear of all
adverse claims within the meaning of the Uniform Commercial
Code other than such security interests being provided to
certain lenders in connection with the Company's refinancing
transactions described in the Prospectus;
(v) the Company has full power and authority to
authorize, issue and sell the Securities as contemplated by
this Agreement; the Securities have been duly authorized, and,
when issued and delivered to and paid for by the Underwriters
pursuant to this Agreement, will be fully paid and
nonassessable; the certificates representing the Securities
will comply in all material respects with all applicable legal
requirements and the requirements of the certificate of
incorporation and the bylaws of the Company; the holders of
outstanding shares of capital stock of the Company are not
entitled to statutory preemptive or, to such counsel's
knowledge, other rights to subscribe for the Securities;
and, to the knowledge of such counsel, except as set forth in
the Prospectus, no shares of Common Stock are reserved for any
purpose and no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert
any obligations into or exchange any securities for, shares of
capital stock of or ownership interests in the Company are
outstanding, except for the tenant in common interests and
profits interests set forth on a schedule;
(vi) to the knowledge of such counsel, except as
disclosed in the Prospectus, there is no pending or threatened
action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator
involving the Company or any of the Subsidiaries or the
24
Properties or other assets of a character required to be
disclosed in the Registration Statement that is not adequately
disclosed in the Prospectus, and there is no contract or other
document required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit
thereto, which is not described or has not been filed as
required; the statements in the Prospectus under the headings:
"Structure and Formation of Our Company," "Certain
Relationships and Related Transactions-Registration Rights,"
"Description of Securities," and "Shares Eligible for Future
Sale," insofar as such statements summarize legal matters,
agreements, documents or proceedings discussed therein, are
accurate and fair in all material respects;
(vii) the Registration Statement has become effective
under the Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in
accordance with Rule 424(b); to the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement has been issued under the Act, and no proceedings
for that purpose have been initiated by the Commission; the
Registration Statement, as of the date it was declared
effective, and the Prospectus, as of its date (other than the
financial statements and other financial and statistical
information contained therein, as to which such counsel need
express no opinion), complied as to form in all material
respects with the applicable requirements for registration
statements on Form S-1 under the Act;
(viii) the Company is not and, after giving effect
to the offering and sale of the Securities and the application
of the proceeds thereof as described in the Prospectus, will
not be, an "investment company" as defined in the Investment
Company Act of 1940, as amended;
(ix) no consent, approval, authorization, filing with
or order of any court or governmental agency or body is
required in connection with the execution, delivery and
performance of this Agreement or the Formation Agreements by
the Company, Great Lakes, the Subsidiaries or the Predecessor
Subsidiaries, as applicable, and the consummation of the
transactions contemplated herein and therein by the Company,
Great Lakes, the Subsidiaries or the Predecessor Subsidiaries,
as applicable, except such (A) as have been obtained under the
Act, and (B) as may be required under the state securities and
the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the
Underwriters in the manner contemplated in this Agreement and
in the Prospectus and the offer and sale of the Formation
Stock, or (C) other
25
consents, approvals, authorizations, orders, filings or
registrations as have been obtained;
(x) (A) the issue and sale of the Securities by the
Company, (B) the execution, delivery and performance of this
Agreement and the Formation Agreements by the Company, Great
Lakes, the Subsidiaries or the Predecessor Subsidiaries, as
applicable, (C) the consummation of the transactions
contemplated thereby and (D) the compliance by such parties
with their respective obligations under this Agreement and the
Formation Agreements: (1) do not and will not conflict with
any of the terms or provisions of, constitute a breach of, or
default under, or result in the creation or imposition of any
Lien upon any Property of the Company, Great Lakes, any
Subsidiary or any Predecessor Subsidiary pursuant to the terms
of any agreement or instrument filed as an exhibit to the
Registration Statement or any term, condition or provision of
any agreements or instruments listed on Schedule IV hereto,
except such conflicts, breaches, defaults, repayment events,
or Liens that would not have a Material Adverse Effect or
liens related to the refinancing transactions; (2) do not and
will not result in a violation of any law, rule, regulation,
judgment, order, writ or decree known to such counsel after
due inquiry to be applicable to the Company, Great Lakes, the
Subsidiaries or the Predecessor Subsidiaries (other than
applicable state securities and Blue Sky laws as to which such
counsel expresses no opinion), except for violations that
would not have a Material Adverse Effect; or (3) do not and
will not result in any violation of the provisions of the
respective charter, bylaws, operating agreement or partnership
agreement, as applicable, of each of the Company, Great Lakes,
the Subsidiaries or the Predecessor Subsidiaries;
(xi) to such counsel's knowledge, the Company is not
a party to any agreement (other than the Registration Rights
Agreement) that would entitle any holders of securities of the
Company to the registration of such securities under the
Registration Statement;
(xii) each Subsidiary that is a limited liability
company or partnership will be treated for Federal income tax
purposes as partnerships and not as associations taxable as
corporations or as publicly traded partnerships;
(xiii) the solicitation of consents of the members of
each of the Predecessor Subsidiaries that will consummate a
merger under a Formation Agreement (the "Formation Entities")
pursuant to the SCPPM complied with (A) the terms and
provisions of the operating agreement of each Formation Entity
and (B) the laws of the state of organization or formation, as
applicable; the requisite consents of the members of the
26
Formation Entities necessary for the consummation of the
Formation Transactions as described in the Prospectus have
been obtained;
(xiv) all applicable filings or notices in connection
with the offer and issuance of shares of the Formation Stock
pursuant to the SCPPM and the applicable Formation Agreements
as part of the Formation Transactions have been made or given
as required (other than filings required under state
securities laws); the offer and issuance by the Company of the
Formation Stock is exempt from the registration requirements
of Section 5 of the Act;
(xv) each of the Articles of Merger described on
Schedule V hereto have been filed with the Secretary of State
of the States of Delaware and Wisconsin, as applicable, and,
on or prior to the Closing Date, the mergers described therein
are effective under Delaware law and Wisconsin law, as
applicable; and
(xvi) the merger of Great Lakes with and into Great
Lakes Services, LLC will be a reorganization within the
meaning of Section 368(a) of the Code.
In addition, such counsel shall state:
In our capacity as counsel for the Company, we have
participated in conferences with officers and other representatives of the
Company, the independent public accountants for the Company, the representative
of the Underwriters, and counsel to the Underwriters during which the contents
of the Registration Statement and the Prospectus and related matters were
discussed. In addition, in the course of acting as counsel to the Company in
connection with the preparation by the Company of the Registration Statement and
Prospectus, we reviewed the Registration Statement and the Prospectus. Although
we are not passing on and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, except for those referred to in the opinion in
paragraph (vi) above, we have no reason to believe that, as of its effective
date, the Registration Statement or any further amendment thereto made by the
Company prior to the Closing Date (other than the financial statements and notes
thereto, the financial statement schedules and the other financial and
statistical data included therein, as to which we express no opinion) contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that, as of its date, the Prospectus or any further amendment or
supplement thereto made by the Company prior to the Closing Date (other than the
financial statements and notes thereto, and the other financial and statistical
data included therein, as to which we express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading or that, as of the Closing Date, either of the
Registration Statement or the Prospectus or any further amendment or
27
supplement thereto made by the Company prior to the Closing Date (other than
the financial statements and notes thereto, and the other financial and
statistical data included therein, as to which we express no opinion) contains
an untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made (with respect only to the Prospectus), not
misleading.
In rendering such opinion, such counsel may rely as to matters
of fact, to the extent they deem proper, on certificates of responsible officers
of the Company, Great Lakes, the Subsidiaries and the Predecessor Subsidiaries
and public officials and, as to certain matters governed by Delaware law (to be
set forth in such counsel's opinion), on the opinion of Morris, Nichols, Arsht &
Xxxxxxx and, as to matters governed by Wisconsin law, on the opinion of Xxxxxxx
& Xxxx, S.C. Each of the opinions of Morris, Nichols, Arsht & Xxxxxxx and
Xxxxxxx & Xxxx, S.C. shall state that the Representative and the Underwriters'
counsel may rely such opinion. References to the Prospectus in this paragraph
(b) shall also include any supplements thereto at the Closing Date.
(c) The Representative shall have received from Hunton &
Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated as
of the Closing Date and each settlement date and addressed to the
Representative, with respect to the issuance and sale of the Securities, the
Registration Statement, the Prospectus (together with any supplement thereto)
and other related matters customarily addressed in such transactions, and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters. In rendering such
opinion, Hunton & Xxxxxxxx LLP may rely upon the opinions of Morris, Nichols,
Arsht & Xxxxxxx and Xxxxxxx & Xxxx, S.C. referred to above.
(d) The Company shall have furnished to the Representative a
certificate on behalf of the Company, signed by the Chairman of the Board, Chief
Executive Officer or the President and the principal financial or accounting
officer of the Company, dated as of the Closing Date and each settlement date,
to the effect that the signers of such certificate have reviewed the
Registration Statement, the Prospectus, any supplements to the Prospectus and
this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the Closing
Date and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus (exclusive of any
supplement thereto), there has been no material adverse effect
on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its
subsidiaries taken as a whole, whether or not arising from
transactions in
28
the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement
thereto).
(e) Great Lakes shall have furnished to the Representative a
certificate on behalf of Great Lakes, signed by the Chairman of the Board, Chief
Executive Officer or the President and the principal financial or accounting
officer of Great Lakes, dated the Closing Date, to the effect that (i) the
signers of such certificate have reviewed the Registration Statement, the
Prospectus, any supplements to the Prospectus and this Agreement and that the
representations and warranties of Great Lakes in this Agreement are true and
correct as of a time immediately prior to the Closing Date with the same effect
as if made immediately prior to the Closing Date and (ii) since the date of the
most recent financial statements included in the Prospectus (exclusive of any
supplement thereto), there has been no material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of Great
Lakes and the Predecessor Subsidiaries taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time, the Closing Date and each
settlement date, the Representative shall have received letters from each of
Deloitte & Touche LLP (with respect to the Company and "Great Lakes
Predecessor," as such term is defined in the Registration Statement) and Rubin,
Brown, Gornstein & Co. LLP (with respect to Wisconsin Dells LLC and Sandusky
LLC) dated respectively as of the Execution Time, the Closing Date and any such
settlement date, in form and substance reasonably satisfactory to the
Representative, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus. Such letters shall address the
audited financial statements, unaudited interim financial statements, pro forma
financial statements (in the case of Deloitte & Touche LLP's letter), and shall
provide customary negative assurances. At the Execution Time, the Closing Date
and each settlement date, the Representative shall have also received an
"agreed-upon procedures" letter from Rubin, Brown, Gornstein & Co. LLP (with
respect to certain financial information and financial statements of Wisconsin
Dells LLC and Sandusky LLC as of, and for the three-month period ended,
September 30, 2004) dated respectively as of the Execution Time, the Closing
Date and any such settlement date, in form and substance satisfactory to the
Representative. With respect to such letters received on the Closing Date and
each settlement date, the affirmation of statements made in the letters
previously furnished shall be as of a date not more than three (3) Business Days
prior to such Closing Date or settlement date.
(g) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement thereto),
there shall not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (f) of this Section 6; or (ii) any change, or
any development involving a prospective change, in or affecting the condition
(financial or otherwise), earnings, business, properties or prospects of the
Company, the Subsidiaries, Great Lakes and the Predecessor Subsidiaries, taken
as a whole, whether or not arising from transactions
29
in the ordinary course of business, except as set forth in or contemplated in
the Prospectus (exclusive of any supplement thereto) the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the sole judgment of the
Representative, so material and adverse as to make it impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto); or (iii) any suspension or
material limitation by the Commission of trading in the Common Stock on NASDAQ.
(h) Subsequent to the Execution Time, there shall not have
been a downgrading in the rating, if any, of any debt securities of the Company
by a "nationally recognized statistical rating organization" (as defined for the
purposes of Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt securities
of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating).
(i) On or prior to the Closing Date and each settlement date,
the Company shall have furnished to the Representative such further information,
certificates, opinions and documents as the Representative may reasonably
request.
(j) On or prior to the Closing Date, the Company shall have
executed a $75.0 million senior secured revolving credit facility.
(k) On or prior to the Execution Time, the Representative
shall have received a lock-up letter substantially in the form of Exhibit A
attached hereto from each executive officer and director (both current and
proposed) of the Company.
(l) At the Closing Date, the Securities shall have been
approved for listing on NASDAQ, subject only to official notice of issuance.
(m) The Company shall have requested and caused King &
Spalding LLP, counsel for the Company, to have furnished to the Representative a
blue sky memorandum, dated the Closing Date and addressed to the Representative,
relating solely to the offering and issuance of Formation Stock. Such blue sky
memorandum shall be, in form and substance, reasonably satisfactory to the
Representative's counsel.
(n) The NASD shall have confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(o) Nothing has occurred that would prevent the completion of
all Formation Transactions, except for the registration of any shares of Common
Stock pursuant to the Registration Rights Agreement filed as an exhibit to the
Registration Statement.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as provided in this Agreement, or if any of the opinions,
letters or certificates mentioned above or elsewhere in this Agreement shall not
be reasonably satisfactory in
30
form and substance to the Representative and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date or the related settlement date by the
Representative. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing. The Representative in
its sole discretion may waive on behalf of the Underwriters compliance with any
conditions to the obligations of the Underwriters hereunder, whether in respect
of a Closing Date or otherwise.
The documents required to be delivered by this Section 6 shall be
delivered at the office of King & Spalding LLP, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000, on the Closing Date or the related settlement date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through the Representative on demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel not to exceed $250,000)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities without duplication of expenses otherwise owed to the
Underwriters pursuant to any engagement letter and actually reimbursed pursuant
thereto.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in any
Preliminary Prospectus or the Prospectus, or in any amendment thereof 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 agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representative
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability that the Company may otherwise have.
31
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each Underwriter, but only
with reference to written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter through the Representative
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the statements
set forth in the last paragraph of the cover page regarding delivery of the
Securities and, under the heading "Underwriting", (i) the list of Underwriters
and their respective participation in the sale of the Securities, (ii) the
sentences related to concessions and reallowances (iii) the paragraph related to
the offer and sale of the Securities in foreign jurisdictions, (iv) the
paragraph related to electronic distribution of the Prospectus and allocation
for the electronic distribution of the Securities and (v) the paragraphs related
to short sales, stabilization, syndicate covering transactions and penalty bids
in the Preliminary Prospectus and the Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in the Preliminary Prospectus or the Prospectus.
(c) The Company agrees to indemnify and hold harmless
Citigroup Global Markets Inc., the directors, officers, employees and agents of
Citigroup Global Markets Inc. and each person, who controls Citigroup Global
Markets Inc. within the meaning of either the Act or the Exchange Act
("Citigroup Entities"), from and against any and all losses, claims, damages and
liabilities to which they may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim), insofar
as such losses, claims damages or liabilities (or actions in respect thereof)
(i) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the prospectus wrapper material
prepared by or with the consent of the Company for distribution in foreign
jurisdictions in connection with the Directed Share Program attached to the
Prospectus or any Preliminary Prospectus, 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 statement therein, when considered in
conjunction with the Prospectus or any applicable Preliminary Prospectus, not
misleading; (ii) caused by the failure of any Participant to pay for and accept
delivery of the securities which immediately following the Effective Date of the
Registration Statement, were subject to a properly confirmed agreement to
purchase; or (iii) related to, arising out of, or in connection with the
Directed Share Program, except that this clause (iii) shall not apply to the
extent that such loss, claim, damage or liability is finally judicially
determined to have resulted primarily from the gross negligence or willful
misconduct of the Citigroup Entities.
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a), (b)
32
or (c) above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a), (b) or (c) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ not more than one separate
counsel (in addition to any reasonably necessary local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, 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 or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
Notwithstanding anything contained herein to the contrary, if indemnity may be
sought pursuant to paragraph (c) above hereof in respect of such action or
proceeding, then in addition to such separate firm for the indemnified parties,
the indemnifying party shall be liable for the reasonable fees and expenses of
not more than one separate firm (in addition to any reasonably necessary local
counsel) for Citigroup Global Markets Inc., the directors, officers, employees
and agents of Citigroup Global Markets Inc., and all persons, if any, who
control Citigroup Global Markets Inc. within the meaning of either the Act or
the Exchange Act for the defense of any losses, claims, damages and liabilities
arising out of the Directed Share Program.
(e) In the event that the indemnity provided in paragraph (a),
(b) or (c) of this Section 8 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in
33
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and by the Underwriters on the other from the
offering of the Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Underwriters severally shall contribute in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the
Company on the one hand and of the Underwriters on the other in connection with
the statements or omissions that resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriters shall be
deemed to be equal to the total underwriting discounts and commissions, in each
case as set forth on the cover page of the Prospectus. Relative fault shall be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Company on the
one hand or the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation that does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (e), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (e).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the Company shall immediately notify the Representative, and the
remaining Underwriters shall be obligated severally to take up and pay for (in
the respective proportions which the amount of Securities set forth opposite
their names in Schedule I hereto bears to the aggregate amount of Securities set
forth opposite the names of all the remaining Underwriters) the Securities that
the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of Securities
that the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate amount of Securities set forth in Schedule I
hereto, the remaining
34
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such nondefaulting
Underwriters do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Company (provided that
if such default occurs with respect to Option Securities after the Closing Date,
this Agreement will not terminate as to the Underwritten Securities or any
Option Securities purchased prior to such termination). In the event of a
default by any Underwriter as set forth in this Section 9, the Closing Date
shall be postponed for such period, not exceeding five (5) Business Days, as the
Representative shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representative, by written notice
given to the Company prior to delivery of and payment for the Securities, (a) if
at any time prior to such time (i) trading in the Company's Common Stock shall
have been suspended or materially limited by the Commission or NASDAQ,
(ii) trading in securities generally on the NYSE or NASDAQ shall have been
suspended or limited or minimum prices shall have been established on such
exchange, (iii) a banking moratorium shall have been declared either by Federal
or New York State authorities, (iv) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity, crisis, change or development the effect of
which on financial markets is such as to make it, in the sole judgment of the
Representative, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus (exclusive of any
supplement thereto), or (v) if there has been, since the Execution Time or since
the respective dates as of which information is given in the Prospectus, a
Material Adverse Effect or (b) as provided in Sections 6 and 9 of this
Agreement.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company, Great Lakes or their officers and of the several Underwriters set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or Great Lakes or any of the officers, directors, employees, agents or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representative, will be
mailed, delivered or
35
telefaxed to the Citigroup Global Markets Inc. General Counsel (fax no.: (212)
000-0000) and confirmed to the General Counsel, Citigroup Global Markets Inc.,
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: General Counsel;
or, if sent to the Company, will be mailed, delivered or telefaxed to Great Wolf
Resorts, Inc. General Counsel (fax no.:(000) 000-0000) with a copy to King &
Spalding LLP, Attention: Xxxx X. Xxxxxx, and confirmed to Great Wolf Resorts,
Inc., 000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000, Attention: J.
Xxxxxxx Xxxxxxxxx, General Counsel and Corporate Secretary.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Material Adverse Effect" shall mean a material adverse effect
on the condition (financial or otherwise), prospects, earnings,
business, properties or
36
assets of the Company, Great Lakes, the Subsidiaries and the
Predecessor Subsidiaries, taken as a whole whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectus (exclusive of any supplements
thereto).
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
"Prospectus" shall mean the prospectus relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Securities
included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rules" shall mean the rules and regulations of the Commission
promulgated under the Act or the Exchange Act, as applicable.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
"United States or Canadian Person" shall mean any person who
is a national or resident of the United States or Canada, any
corporation, partnership, or other entity created or organized in or
under the laws of the United States or Canada or of any political
subdivision thereof, or any estate or trust the income of which is
subject to United States or Canadian Federal income taxation,
regardless of its source (other than any non-United States or
non-Canadian branch of any United States or Canadian Person), and shall
include any United States or Canadian branch of a person other than a
United States or Canadian Person.
37
"U.S." or "United States" shall mean the United States of
America (including the states thereof and the District of Columbia),
its territories, its possessions and other areas subject to its
jurisdiction.
[SIGNATURES ON THE FOLLOWING PAGES]
38
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company, Great Lakes and the several Underwriters.
Very truly yours,
GREAT WOLF RESORTS, INC.
By:
--------------------------------
Name:
Title:
THE GREAT LAKES COMPANIES, INC.
By:
--------------------------------
Name:
Title:
[Signature Page for the Underwriting Agreement]
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
CITIGROUP GLOBAL MARKETS INC.
By:
-----------------------------------------
Name:
Title:
For itself and the other
several Underwriters named in
Schedule I to the
foregoing Agreement.
[Signature Page for the Underwriting Agreement]
SCHEDULE I
Number of Underwritten
Securities Number of Securities
Underwriters to be Purchased Reserved for the DSP
------------ --------------- -------------------
Citigroup Global Markets Inc. ....................
X.X. Xxxxxxx & Sons, Inc. ........................
Xxxxxxx Xxxxx & Associates, Inc. .................
Calyon Securities (USA) Inc. .....................
Societe Generale .................................
ThinkEquity Partners LLC .........................
---------- ----------
TOTAL ...................................
========== ==========
SCHEDULE II-A
PREDECESSOR SUBSIDIARIES PRIOR TO THE CLOSING DATE
SCHEDULE II-B
COMPANY SUBSIDIARIES PRIOR TO THE CLOSING DATE
SCHEDULE II-C
COMPANY SUBSIDIARIES ON AND AFTER THE CLOSING DATE
SCHEDULE III
RIGHTS TO PURCHASE OR SUBSCRIBE FOR SHARES OF COMMON STOCK
SCHEDULE IV
FORMATION AGREEMENTS
SCHEDULE V
TITLE REPORTS
EXHIBIT A
FORM OF LOCK-UP LETTER
[LETTERHEAD OF OFFICER, DIRECTOR OR MAJOR SHAREHOLDER OF CORPORATION]
Great Wolf Resorts, Inc.
Public Offering of Common Stock
, 20__
Citigroup Global Markets Inc.
As Representative of the several Underwriters,
[c/o Citigroup Global Markets Inc.]
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement"), among Great Wolf
Resorts, Inc., a Delaware corporation (the "Company"),The Great Lakes Companies,
Inc., a Wisconsin corporation, and you as representative of a group of
Underwriters named therein, relating to an underwritten public offering (the
"Public Offering") of Common Stock, $ 0.01 par value (the "Common Stock"), of
the Company.
In order to induce you and the other Underwriters to enter
into the Underwriting Agreement, the undersigned will not, without the prior
written consent of Citigroup Global Markets Inc., offer, sell, contract to sell,
pledge or otherwise dispose of, (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any affiliate of the undersigned or any person
in privity with the undersigned or any affiliate of the undersigned), directly
or indirectly, including the filing (or participation in the filing) of a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
shares of capital stock of the Company or any securities convertible into, or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for a period of 180 days after the
date of the Underwriting Agreement. Notwithstanding the foregoing, nothing in
this letter agreement shall prohibit or otherwise restrict the undersigned from
making (i) a transfer of shares of Common Stock to a transferee or transferees
as a bona fide gift or gifts, provided the transferee or transferees thereof
agree in writing to be bound by this letter agreement, (ii) a pledge of shares
of Common Stock, provided the pledgee or pledgees thereof agree in writing to be
bound by the terms of this letter agreement, (iii)
a transfer of shares of Common Stock to the Company in satisfaction of an
obligation to indemnify the Company under and pursuant to an indemnification
agreement. In addition, any shares of Common Stock acquired by the undersigned
in the open market will not be subject to this letter agreement; provided that
no filing by any party under the Securities Exchange Act of 1934 shall be
required or shall be voluntarily made in connection with subsequent sales of any
such shares of Common Stock acquired in the open market.
If for any reason the Underwriting Agreement shall be
terminated prior to the Closing Date (as defined in the Underwriting Agreement),
the agreement set forth above shall likewise be terminated.
Yours very truly,
[SIGNATURE OF OFFICER, DIRECTOR OR MAJOR
STOCKHOLDER]
[NAME AND ADDRESS OF OFFICER, DIRECTOR OR MAJOR
STOCKHOLDER]
