EXHIBIT 4.6
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GW CAPITAL TRUST II
AMENDED AND RESTATED DECLARATION OF TRUST
among
GREAT WOLF RESORTS, INC., as Sponsor,
WILMINGTON TRUST COMPANY, as Property Trustee and as Delaware Trustee
and
the Administrative Trustees named herein
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June ___, 2006
GW CAPITAL TRUST II
Certain Sections of this Declaration of Trust relating to
Sections 310 through 318 of the Trust Indenture Act of 1939:
Trust Agreement Trust Indenture
Act Section Section
- --------------- -----------------
310(a)(1).......................................................................................... 8.7
(a)(2)............................................................................................. 8.7
(a)(3)............................................................................................. 8.9
(a)(4)............................................................................................. 2.7(a)(ii)
(b)................................................................................................ 8.8, 10.10(b)
311(a)............................................................................................. 8.13, 10.10(b)
(b)................................................................................................ 8.13, 10.10(b)
312(a)............................................................................................. 10.10(b)
(b)................................................................................................ 10.10(b)
(c)................................................................................................ 5.7
313(a)............................................................................................. 8.15(a)
(b)................................................................................................8.15(a), 8.15(b)
(c)................................................................................................ 8.15(a), 10.8
(d)................................................................................................ 8.15(a)
314(a)............................................................................................. 8.16
(b)................................................................................................ Not Applicable
(c)(1)............................................................................................. 8.16, 8.17
(c)(2)............................................................................................. 8.16, 8.17
(c)(3)............................................................................................. 8.16, 8.17
(e)................................................................................................ 8.17
315(a)............................................................................................. 8.1(d)
(b)................................................................................................ 8.2
(c)................................................................................................ 8.1(c)
(d)................................................................................................ 8.1(d)
(e)................................................................................................ Not Applicable
316(a)............................................................................................. Not Applicable
(a)(1)(A).......................................................................................... Not Applicable
(a)(1)(B).......................................................................................... Not Applicable
(a)(2)............................................................................................. Not Applicable
(b)................................................................................................ 5.13
(c)................................................................................................ 6.7
317(a)(1).......................................................................................... Not Applicable
(a)(2)............................................................................................ 8.14
(b)................................................................................................ 5.10
318(a)............................................................................................. 10.10(a)
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Declaration of Trust.
Table of Contents
Page
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ARTICLE I
DEFINED TERMS
SECTION 1.1. Definitions.........................................................................................1
ARTICLE II
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name...............................................................................................11
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business........................................11
SECTION 2.3. Initial Contribution of Trust Property; Organizational Expenses....................................11
SECTION 2.4. Issuance of the Trust Securities...................................................................11
SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase of Junior Subordinated Debentures.....12
SECTION 2.6. Declaration of Trust...............................................................................13
SECTION 2.7. Authorization to Enter into Certain Transactions...................................................13
SECTION 2.8. Assets of Trust....................................................................................16
SECTION 2.9. Title to Trust Property............................................................................16
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account....................................................................................16
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions......................................................................................17
SECTION 4.2. Redemption.........................................................................................18
SECTION 4.3. Subordination of Common Securities.................................................................20
SECTION 4.4. Payment Procedures.................................................................................21
SECTION 4.5. Tax Returns and Reports............................................................................21
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust.................................................22
SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions.............................................22
SECTION 4.8. Liability of the Holder of Common Securities.......................................................22
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership..................................................................................22
SECTION 5.2. The Trust Securities Certificates..................................................................23
SECTION 5.3. Execution and Delivery of Trust Securities Certificates............................................23
SECTION 5.4. Global Preferred Security..........................................................................23
SECTION 5.5. Registration of Transfer and Exchange Generally; Certain Transfers and
Exchanges; Preferred Securities Certificates.......................................................25
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates.................................26
SECTION 5.7. Persons Deemed Holders.............................................................................26
SECTION 5.8. Access to List of Holders' Names and Addresses.....................................................27
SECTION 5.9. Maintenance of Office or Agency....................................................................27
SECTION 5.10. Appointment of Paying Agent........................................................................27
SECTION 5.11. Ownership of Common Securities by Sponsor..........................................................28
SECTION 5.12. Notices to Clearing Agency.........................................................................28
SECTION 5.13. Rights of Holders..................................................................................28
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Holder's Voting Rights..............................................................30
SECTION 6.2. Notice of Meetings.................................................................................31
SECTION 6.3. Meetings of Holders................................................................................31
SECTION 6.4. Voting Rights......................................................................................32
SECTION 6.5. Proxies, etc.......................................................................................32
SECTION 6.6. Holder Action by Written Consent...................................................................32
SECTION 6.7. Record Date for Voting and Other Purposes..........................................................32
SECTION 6.8. Acts of Holders....................................................................................33
SECTION 6.9. Inspection of Records..............................................................................34
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee and the Delaware Trustee....................34
SECTION 7.2. Representations and Warranties of Sponsor..........................................................35
ARTICLE VIII
THE ISSUER TRUSTEES; THE ADMINISTRATIVE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities................................................................35
SECTION 8.2. Certain Notices....................................................................................37
SECTION 8.3. Certain Rights of Property Trustee.................................................................38
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities.............................................40
SECTION 8.5. May Hold Securities................................................................................40
SECTION 8.6. Compensation; Indemnity; Fees......................................................................40
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Trustees and Administrative Trustees...........42
SECTION 8.8. Conflicting Interests..............................................................................42
SECTION 8.9. Co-Trustees and Separate Trustee...................................................................42
SECTION 8.10. Resignation and Removal; Appointment of Successor..................................................44
SECTION 8.11. Acceptance of Appointment by Successor.............................................................45
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business.......................................45
SECTION 8.13. Preferential Collection of Claims Against Sponsor or Issuer Trust..................................46
SECTION 8.14. Trustee May File Proofs of Claim...................................................................46
SECTION 8.15. Reports by Property Trustee........................................................................46
SECTION 8.16. Reports to the Property Trustee....................................................................47
SECTION 8.17. Evidence of Compliance with Conditions Precedent...................................................47
SECTION 8.18. Number of Issuer Trustees..........................................................................47
SECTION 8.19. Delegation of Power................................................................................47
SECTION 8.20. Appointment of Administrative Trustees.............................................................48
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date...................................................................48
SECTION 9.2. Early Termination..................................................................................48
SECTION 9.3. Termination........................................................................................49
SECTION 9.4. Liquidation........................................................................................49
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of the Issuer Trust.........................51
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders...................................................................52
SECTION 10.2. Amendment.........................................................................................52
SECTION 10.3. Separability......................................................................................53
SECTION 10.4. Governing Law.....................................................................................53
SECTION 10.5. Payments Due on Non-Business Day..................................................................54
SECTION 10.6. Successors........................................................................................54
SECTION 10.7. Headings..........................................................................................54
SECTION 10.8. Reports, Notices and Demands......................................................................55
SECTION 10.9. Agreement Not to Petition.........................................................................55
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act............................................56
SECTION 10.11. Acceptance of Terms of Declaration of Trust, Guarantee and Indenture..............................56
SECTION 10.12. Counterparts......................................................................................57
Exhibit A Certificate of Trust
Exhibit B Form of Certificate Depositary Agreement
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Preferred Securities Certificate
Exhibit E Form of Expense Agreement
DECLARATION OF TRUST
Amended and Restated Declaration of Trust, dated as of June __, 2006,
among (i) Great Wolf Resorts, Inc., a Delaware corporation, as sponsor
(including any successors or assigns, the "Sponsor"), (ii) Wilmington Trust
Company, a Delaware banking corporation, as property trustee, (in such capacity,
the "Property Trustee"), (iii) Wilmington Trust Company, a Delaware banking
corporation, as Delaware trustee (the "Delaware Trustee") (the Property Trustee
and the Delaware Trustee are referred to collectively herein as the "Issuer
Trustees"), (iv) two individuals selected by the holders of the Common
Securities (as defined herein) to act as administrative trustees with respect to
the Issuer Trust (the "Administrative Trustees") and (v) the several Holders, as
hereinafter defined.
WITNESSETH:
WHEREAS, the Issuer Trust (as defined herein) has been established under
the Delaware Statutory Trust Act pursuant to a certain Declaration of Trust,
dated as of May 25, 2006, (the "Original Declaration of Trust"), and by the
filing of the Certificate of Trust of the Issuer Trust with the Secretary of
State of the State of Delaware on May 25, 2006, (the "Certificate of Trust"),
which Certificate of Trust is attached as Exhibit A; and
WHEREAS, the parties hereto desire to amend and restate the Original
Declaration of Trust in its entirety as set forth herein to provide for, among
other things, (i) the issuance and sale of the Common Securities by the Issuer
Trust to the Sponsor, (ii) the issuance and sale of the Preferred Securities by
the Issuer Trust pursuant to the Underwriting Agreement, (iii) the acquisition
by the Issuer Trust from the Sponsor of all of the right, title and interest in
the Junior Subordinated Debentures and (iv) the appointment of the
Administrative Trustees.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, hereby amends and restates the
Original Declaration of Trust in its entirety and agrees, intending to be
legally bound, as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1. Definitions. For all purposes of this Declaration of Trust,
except as otherwise expressly provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(b) All other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) The words "include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted accounting
principles as in effect at the time of computation;
(e) Unless the context otherwise requires, any reference to an "Article"
or a "Section" refers to an Article or a Section, as the case may be, of this
Declaration of Trust; and
(f) The words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Declaration of Trust as a whole and not to any
particular Article, Section or other subdivision.
"2005 Junior Subordinated Indenture" means the Junior Subordinated
Indenture, dated as of March 15, 2005, between the Sponsor and JPMorgan Chase
Bank, National Association, as trustee, pursuant to which the Existing Junior
Subordinated Debentures were issued.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and a given period, the amount of Additional Interest (as
defined in the Indenture) paid by the Sponsor on Junior Subordinated Debentures
having a principal amount equal to such Liquidation Amount for such period.
"Additional Sums" means any additional amounts paid by the Sponsor as
specified in Section 2.03(r) of the Indenture.
"Administrative Trustees" means each Person appointed in accordance with
Section 8.20 solely in such Person's capacity as Administrative Trustee of the
Issuer Trust and not in such Person's individual capacity, or any successor
Administrative Trustee appointed as herein provided; with the initial
Administrative Trustees being J. Michael Schroeder and James A. Calder.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Global Preferred Security or beneficial interest therein, the rules
and procedures of the Depositary for such Preferred Security, in each case to
the extent applicable to such transaction and as in effect from time to time.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in the
premises judging such Person a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under
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any applicable federal or State bankruptcy, insolvency, reorganization or other
similar law, or appointing a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of such Person or of any substantial
part of its property or ordering the winding up or liquidation of its affairs,
and the continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person or of any substantial part of its property or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due and its willingness
to be adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board of Directors" means either the Board of Directors of the Sponsor or
any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions, certified by
the Secretary or an Assistant Secretary of the Sponsor to have been duly adopted
or consented to by the Board of Directors and to be in full force and effect,
and delivered to the Issuer Trustees.
"Business Day" means a day other than (a) a Saturday or Sunday and (b) a
day on which banking institutions in Wilmington, Delaware and The City of New
York are authorized or required by law or executive order to remain closed.
"Certificate Depositary Agreement" means the agreement between the Issuer
Trust and the Depositary, as the initial Clearing Agency, dated as of
______________, substantially in the form attached as Exhibit B, as the same may
be amended and supplemented from time to time.
"Certificate of Trust" has the meaning specified in the preamble to this
Declaration of Trust.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act. The Depositary shall be the initial
Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" has the meaning specified in the Underwriting Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
3
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing ownership
of Common Securities, substantially in the form attached as Exhibit C.
"Common Securities Subscription Agreement" means the common securities
subscription agreement between the Issuer Trust and the Sponsor dated June ___,
2006 and any other common securities subscription agreement between the Issuer
Trust and the Sponsor relating to up to _________ additional Common Securities
issuable in connection with the exercise by the Underwriters of their option to
purchase an additional [300,000] Preferred Securities.
"Common Security" means an undivided beneficial interest in the assets of
the Issuer Trust, having a Liquidation Amount of $25 and having the rights
provided therefor in this Declaration of Trust, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Corporate Trust Office" means the principal office of the Property
Trustee located in The City of Wilmington, Delaware which at the time of the
execution of this Declaration of Trust is located at Rodney Square North, 1100
North Market Street, Wilmington, Delaware 19890-0001; Attention: Corporate Trust
Administration, or such other address as the Property Trustee may designate from
time to time by notice to the Holders and the Sponsor, or the principal
corporate trust office of any successor Property Trustee (or such other address
as such successor Trustee may designate from time to time by notice to the
Holders and the Sponsor).
"Debenture Default" means a "Default" as defined in the Indenture.
"Debenture Event of Default" means an "Event of Default" as defined in the
Indenture.
"Debenture Redemption Date" means, with respect to any Junior Subordinated
Debentures to be redeemed under the Indenture, the date fixed for redemption of
such Junior Subordinated Debentures under the Indenture.
"Debt Securities Trustee" means Wilmington Trust Company, a Delaware
banking corporation, as Trustee under the Indenture and any successor.
"Declaration of Trust" means this Amended and Restated Declaration of
Trust, as the same may be modified, amended or supplemented in accordance with
the applicable provisions hereof, including (i) all Exhibits hereto, and (ii)
for all purposes of this Amended and Restated Declaration of Trust and any such
modification, amendment or supplement, the provisions of the Trust Indenture Act
that are deemed to be a part of and govern this Amended and Restated Declaration
of Trust and any modification, amendment or supplement, respectively.
"Delaware Statutory Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. Section 3801, et seq., as it may be amended from time
to time.
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"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" in the preamble to this Declaration of Trust solely in its capacity as
Delaware Trustee of the Issuer Trust and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee appointed as
herein provided.
"Depositary" means The Depository Trust Company or any successor thereto.
"Direct Action" has the meaning specified in Section 5.13.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust Securities
as provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Default or a Debenture Event of Default;
or
(b) default by the Issuer Trust or the Property Trustee in the payment of
any Distribution when it becomes due and payable, and continuation of such
default for a period of 30 days; or
(c) default by the Issuer Trust or the Property Trustee in the payment of
any Redemption Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Issuer Trustees in this Declaration of Trust (other
than a covenant or warranty, a default in the performance of which or the breach
of which is dealt with in clause (b) or (c) above) and continuation of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Issuer Trustees and the Sponsor by the
Holders of at least 25% in aggregate Liquidation Amount of the Outstanding
Preferred Securities, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(e) the occurrence of any Bankruptcy Event with respect to the Property
Trustee or all or substantially all of its property if a successor Property
Trustee has not been appointed within a period of 90 days thereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and any successor statute thereto, in each case as amended from time to time.
"Existing Junior Subordinated Debentures" means the Floating Rate Junior
Subordinated Debentures due 2035 issued by the Issuer under the 2005 Junior
Subordinated Indenture.
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"Expense Agreement" means the Agreement as to Expenses and Liabilities,
dated as of the Closing Date, between the Sponsor, in its capacity as holder of
the Common Securities, and the Issuer Trust, substantially in the form attached
as Exhibit E, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Global Preferred Securities Certificate" means a Preferred Securities
Certificate evidencing ownership of Global Preferred Securities.
"Global Preferred Security" means a Preferred Security, the ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 5.4.
"Guarantee Agreement" means the Preferred Securities Guarantee Agreement
executed and delivered by the Sponsor and Wilmington Trust Company, as Guarantee
Trustee, contemporaneously with the execution and delivery of this Declaration
of Trust, for the benefit of the holders of the Preferred Securities, as amended
from time to time.
"Holder" means a Person in whose name a Trust Security or Trust Securities
is registered in the Securities Register; any such Person shall be a beneficial
owner within the meaning of the Delaware Statutory Trust Act.
"Indenture" means the Junior Subordinated Indenture, dated as of June ___,
2006, between the Sponsor and the Debt Securities Trustee (as amended or
supplemented from time to time) relating to the issuance of the Junior
Subordinated Debentures.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Investment Company Event" means the receipt by the Issuer Trust of an
Opinion of Counsel experienced in such matters, who shall not be an officer or
employee of the Sponsor or any of its Affiliates, to the effect that, as a
result of the occurrence of a change in law or regulation or a written change
(including any announced prospective change) in interpretation or application of
law or regulation by any legislative body, court, governmental agency or
regulatory authority, there is more than an insubstantial risk that the Issuer
Trust is or will be considered an "investment company" that is required to be
registered under the Investment Company Act, which change or prospective change
becomes effective or would become effective, as the case may be, on or after
June ___, 2006.
"Issuer Trust" means GW Capital Trust II.
"Issuer Trustees" means, collectively, the Property Trustee and the
Delaware Trustee.
"Junior Subordinated Debentures" means the aggregate principal amount of
the Sponsor's ____% Junior Subordinated Debentures due 2036, issued pursuant to
the Indenture.
"Junior Subordinated Debenture Subscription Agreement" means the junior
subordinated debenture subscription agreement between the Issuer Trust and the
Sponsor dated June ___, 2006 and any other junior subordinated debenture
subscription agreement between the Issuer Trust and the Sponsor relating to up
to $_____________ aggregate principal amount of additional junior
6
subordinated debentures issuable in connection with the exercise by the
Underwriters of their option to purchase an additional [$7,500,000] aggregate
liquidation amount of Preferred Securities.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to that portion of the
principal amount of Junior Subordinated Debentures to be contemporaneously
redeemed in accordance with the Indenture, allocated to the Common Securities
and to the Preferred Securities based upon the relative Liquidation Amounts of
such classes and (b) with respect to a distribution of Junior Subordinated
Debentures to Holders of Trust Securities in connection with a dissolution or
liquidation of the Issuer Trust, Junior Subordinated Debentures having a
principal amount equal to the Liquidation Amount of the Trust Securities of the
Holder to whom such Junior Subordinated Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date on which Junior Subordinated Debentures
are to be distributed to Holders of Trust Securities in connection with a
dissolution and liquidation of the Issuer Trust pursuant to Section 9.4.
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Majority in Liquidation Amount of the Preferred Securities" or "Majority
in Liquidation Amount of the Common Securities" means, except as provided by the
Trust Indenture Act, Preferred Securities or Common Securities, as the case may
be, representing more than 50% of the aggregate Liquidation Amount of all then
Outstanding Preferred Securities or Common Securities, as the case may be.
"Officer's Certificate" means a certificate signed by the the Chairman of
the Board, the Chief Executive Officer, the President, an Executive Vice
President, the Chief Financial Officer, the General Counsel, or the Treasurer of
the Sponsor, or any other person authorized by the Board of Directors of the
Sponsor to execute any such written statement, and delivered to the party
provided herein. Any Officer's Certificate delivered with respect to compliance
with a condition or covenant provided for in this Declaration of Trust shall
include:
(a) a statement by the officer signing the Officer's Certificate that such
officer has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officer's Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
7
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may, unless
otherwise specified herein, be counsel for, or an officer or employee of, the
Sponsor or any Affiliate of the Sponsor.
"Original Declaration of Trust" has the meaning specified in the preamble
to this Declaration of Trust.
"Outstanding," with respect to Trust Securities, means, as of the date of
determination, all Trust Securities theretofore executed and delivered under
this Declaration of Trust, except:
(a) Trust Securities theretofore canceled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Trust Securities, provided that if such
Trust Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Declaration of Trust; and
(c) Trust Securities which have been paid or in exchange for or in lieu of
which other Trust Securities have been executed and delivered pursuant to
Sections 5.4, 5.5, 5.6 and 5.13;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Sponsor, or any Issuer Trustee, any
Administrative Trustee or any Affiliate of the Sponsor or any Issuer Trustee
shall be disregarded and deemed not to be Outstanding, except that (a) in
determining whether any Issuer Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Preferred Securities that such Issuer Trustee or such Administrative Trustee, as
the case may be, actually knows to be so owned shall be so disregarded and (b)
the foregoing shall not apply at any time when all of the outstanding Preferred
Securities are owned by the Sponsor, one or more of the Issuer Trustees, one or
more of the Administrative Trustees and/or any such Affiliate. Preferred
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Administrative
Trustees the pledgee's right so to act with respect to such Preferred Securities
and that the pledgee is not the Sponsor or any Affiliate of the Sponsor.
"Owner" means each Person who is the beneficial owner of Global Preferred
Securities as reflected in the records of the Clearing Agency or, if a Clearing
Agency Participant is not the Owner, then as reflected in the records of a
Person maintaining an account with such Clearing Agency (directly or
indirectly), in accordance with the rules of such Clearing Agency.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.10 and shall initially be the Property Trustee.
8
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained with the Property Trustee in its trust department for the
benefit of the Holders in which all amounts paid in respect of the Junior
Subordinated Debentures will be held and from which the Property Trustee,
through the Paying Agent, shall make payments to the Holders in accordance with
Sections 4.1 and 4.2.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, company,
limited liability company, trust, unincorporated organization or government or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as Exhibit
D.
"Preferred Security" means a preferred undivided beneficial interest in
the assets of the Issuer Trust, having a Liquidation Amount of $25 and having
the rights provided therefor in this Declaration of Trust, including the right
to receive Distributions and a Liquidation Distribution as provided herein.
"Property Trustee" means the Person identified as the "Property Trustee"
in the preamble to this Declaration of Trust solely in its capacity as Property
Trustee of the Issuer Trust and not in its individual capacity, or its successor
in interest in such capacity, or any successor property trustee appointed as
herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Declaration
of Trust; provided that each Debenture Redemption Date and the stated maturity
of the Junior Subordinated Debentures shall be a Redemption Date for a Like
Amount of Trust Securities, including but not limited to any date of redemption
pursuant to the occurrence of any Redemption Event.
"Redemption Event" means any Tax Event or Investment Company Event.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to but excluding the Redemption Date.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Responsible Officer" when used with respect to the Property Trustee means
any officer assigned to the Corporate Trust Office, including any vice
president, assistant vice president, assistant treasurer, assistant secretary,
trust officer or any other officer of the Property Trustee customarily
performing functions similar to those performed by any of the above designated
officers and having direct responsibility for the administration of this
Declaration of Trust, and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge of
and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended, and any
successor statute thereto, in each case as amended from time to time.
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"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.5.
"Senior Indebtedness" has the meaning specified in the Indenture.
"Special Event" means such time as (i) any Outstanding Preferred
Securities shall cease to be listed on the New York Stock Exchange (the "NYSE"),
the American Stock Exchange (the "AMEX") or quoted on the The Nasdaq National
Market (the "Nasdaq"), and (ii) the Sponsor shall cease to be subject to the
reporting requirements of the Exchange Act, but the Preferred Securities remain
Outstanding.
"Special Event Termination Date" means the date on which (i) the Preferred
Securities are again listed on the NYSE or the AMEX or quoted on the Nasdaq
(following their not being so listed or quoted) and (ii) the Sponsor becomes
subject to the reporting requirements of the Exchange Act (following it not
having been subject to such requirements).
"Sponsor" has the meaning specified in the preamble to this Declaration of
Trust.
"Tax Event" means the receipt by the Issuer Trust of an Opinion of Counsel
experienced in such matters, who shall not be an officer or employee of the
Sponsor or any of its Affiliates, to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein affecting taxation or as a
result of any official or administrative pronouncement or action or judicial
decision interpreting or applying such laws or regulations, which amendment or
change is effective or which pronouncement, action or decision is announced on
or after June ___, 2006, there is more than an insubstantial risk that (i) the
Issuer Trust is, or will be within 90 days of the delivery of such Opinion of
Counsel, subject to United States Federal income tax with respect to income
received or accrued on the Junior Subordinated Debentures, (ii) interest payable
by the Sponsor to the Issuer Trust on the Junior Subordinated Debentures is not,
or within 90 days of the delivery of such Opinion of Counsel will not be,
deductible by the Sponsor, in whole or in part, for United States Federal income
tax purposes, or (iii) the Issuer Trust is, or will be within 90 days of the
delivery of such Opinion of Counsel, subject to more than a de minimis amount of
other taxes, duties or other governmental charges; provided, however, that Tax
Event shall not include any event described above that requires the Sponsor for
United States Federal income tax purposes to defer taking a deduction for any
original issue discount that accrues with respect to the Junior Subordinated
Debentures until the interest payment related to such original issue discount is
paid by the Sponsor in cash.
"Trust Indenture Act" means the Trust Indenture Act of 1939 or any
successor statute, in each case as amended from time to time.
"Trust Property" means (a) the Junior Subordinated Debentures, (b) any
cash on deposit in, or owing to, the Payment Account, and (c) all proceeds and
rights in respect of the foregoing or any other property and assets for the time
being held or deemed to be held by the Property Trustee pursuant to the terms of
this Declaration of Trust.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
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"Trust Security" means any one of the Common Securities or the Preferred
Securities.
"Underwriters" has the meaning specified in the Underwriting Agreement.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
June ___, 2006, among the Issuer Trust, the Sponsor and Morgan Stanley & Co.
Incorporated on behalf of the Underwriters named therein, as the same may be
amended from time to time.
ARTICLE II
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name. The Issuer Trust continued hereby shall be known as "GW
Capital Trust II," as such name may be modified from time to time by the
Administrative Trustees following written notice to the Holders of Trust
Securities and the Issuer Trustees, in which name the Administrative Trustees
and the Issuer Trustees may engage in the transactions contemplated hereby, make
and execute contracts and other instruments on behalf of the Issuer Trust and
sue and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is Rodney
Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001,
Attention: Corporate Trust Administration, or such other address in the State of
Delaware as the Delaware Trustee may designate by written notice to the Holders
and the Sponsor. The principal executive office of the Issuer Trust is in care
of Great Wolf Resorts, Inc., 122 West Washington Avenue, Madison, Wisconsin
53703, Attention: General Counsel and Corporate Secretary.
SECTION 2.3. Initial Contribution of Trust Property; Organizational
Expenses.
The Issuer Trust acknowledges receipt in trust from the Sponsor in
connection with this Declaration of Trust of the sum of $10, which constitutes
the initial Trust Property. The Sponsor shall pay all organizational expenses of
the Issuer Trust as they arise or shall, upon request of any Issuer Trustee,
promptly reimburse such Issuer Trustee for any such expenses paid by such Issuer
Trustee. The Sponsor shall make no claim upon the Trust Property for the payment
of such expenses.
SECTION 2.4. Issuance of the Trust Securities.
The Sponsor, both on its own behalf and on behalf of the Issuer Trust
pursuant to the Original Declaration of Trust, executed and delivered the
Underwriting Agreement. Contemporaneously with the execution and delivery of
this Declaration of Trust, an Administrative Trustee, on behalf of the Issuer
Trust, shall execute, manually or by facsimile, in accordance with Section 5.3,
the Property Trustee shall authenticate in accordance with Section 5.3, and the
Issuer Trust shall deliver to the Underwriters, Preferred Securities
Certificates, registered in the names requested by the Underwriters, in an
aggregate amount of [2,000,000] Preferred Securities having an aggregate
Liquidation Amount of [$50,000,000], against receipt of the aggregate purchase
price of such Preferred Securities of [$50,000,000] by the Issuer Trust.
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If the Underwriters exercise their option to purchase all or any portion
of an additional [300,000] Preferred Securities pursuant to the terms of the
Underwriting Agreement, then an Administrative Trustee, on behalf of the Issuer
Trust, shall execute, manually or by facsimile, in accordance with Section 5.3,
the Property Trustee shall authenticate in accordance with Section 5.3, and the
Issuer Trust shall deliver to the Underwriters, additional Preferred Securities
Certificates, registered in the names requested by the Underwriters, in an
aggregate amount of up to [300,000] additional Preferred Securities having an
aggregate Liquidation Amount of up to [$7,500,000], against receipt of the
aggregate purchase price of such additional Preferred Securities of up to
[$7,500,000] by the Issuer Trust.
SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase
of Junior Subordinated Debentures.
Contemporaneously with the execution and delivery of this Declaration of
Trust, an Administrative Trustee, on behalf of the Issuer Trust, shall execute
or cause to be executed in accordance with Section 5.2 and deliver to the
Sponsor a Common Securities Certificate, registered in the name of the Sponsor,
in an aggregate amount of ____________ Common Securities having an aggregate
Liquidation Amount of $___________ against receipt of the aggregate purchase
price of such Common Securities of $_______________ by the Issuer Trust.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Issuer
Trust, shall subscribe for and purchase from the Sponsor the Junior Subordinated
Debentures, registered in the name of the Issuer Trust and having an aggregate
principal amount equal to $___________ and, in satisfaction of the purchase
price for such Junior Subordinated Debentures, the Property Trustee, on behalf
of the Issuer Trust, shall deliver to the Sponsor the sum of $___________ (being
the sum of the amounts delivered to the Property Trustee pursuant to (i) the
second sentence of Section 2.4, and (ii) the first sentence of this Section 2.5)
and receive on behalf of the Issuer Trust the Junior Subordinated Debentures.
If the Underwriters exercise their option to purchase additional Preferred
Securities pursuant to the terms of the Underwriting Agreement, then an
Administrative Trustee, on behalf of the Issuer Trust, shall execute or cause to
be executed in accordance with Section 5.2 and deliver to the Sponsor,
additional Common Securities Certificates, registered in the name of the
Sponsor, in an aggregate amount of up to ____________ additional Common
Securities having an aggregate Liquidation Amount of up to $___________ against
receipt of the aggregate purchase price of up to $___________ by the Issuer
Trust. Contemporaneously therewith, an Administrative Trustee, on behalf of the
Issuer Trust, shall subscribe for and purchase from the Sponsor, Junior
Subordinated Debentures, registered in the name of the Issuer Trust and having
an aggregate principal amount of up to $_____________ and, in satisfaction of
the purchase price for such Junior Subordinated Debentures, the Property
Trustee, on behalf of the Issuer Trust, shall deliver to the Sponsor an
aggregate amount equal to the sum of the amounts delivered to the Property
Trustee pursuant to (i) the third sentence of Section 2.4, and (ii) the third
sentence of this Section 2.5, and receive on behalf of the Issuer Trust such
Junior Subordinated Debentures.
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SECTION 2.6. Declaration of Trust.
The exclusive purposes and functions of the Issuer Trust are to (a) issue
and sell Trust Securities and use the proceeds from such sale to acquire the
Junior Subordinated Debentures, and (b) engage in only those other activities
necessary, convenient or incidental thereto. The Sponsor hereby appoints the
Issuer Trustees as trustees of the Issuer Trust, to have all the rights, powers
and duties to the extent set forth herein, and the Issuer Trustees hereby accept
such appointment. The Property Trustee hereby declares that it will hold the
Trust Property in trust upon and subject to the conditions set forth herein for
the benefit of the Issuer Trust and the Holders. The Sponsor hereby appoints the
Administrative Trustees, with such Administrative Trustees having all rights,
powers and duties set forth herein with respect to accomplishing the purposes of
the Issuer Trust, and the Administrative Trustees hereby accept such
appointment. The Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and responsibilities, of
the Property Trustee or the Administrative Trustees set forth herein. The
Delaware Trustee shall be one of the trustees of the Issuer Trust for the sole
and limited purpose of fulfilling the requirements of Section 3807 of the
Delaware Statutory Trust Act and for taking such actions as are required to be
taken by a Delaware trustee under the Delaware Statutory Trust Act.
SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Issuer Trustees and the Administrative Trustees shall conduct the
affairs of the Issuer Trust in accordance with the terms of this Declaration of
Trust. Subject to the limitations set forth in paragraph (b) of this Section and
in accordance with the following provisions (i) and (ii), the Issuer Trustees
and the Administrative Trustees shall act as follows:
(i) Each Administrative Trustee, acting singly or jointly, is
authorized, on behalf of the Trust, to:
(A) comply with the Underwriting Agreement regarding the
issuance and sale of the Preferred Securities;
(B) assist in compliance with the Securities Act, applicable
state securities or blue sky laws, and the Trust Indenture Act;
(C) assist in the listing of the Preferred Securities upon
such securities exchange or exchanges as shall be determined by the
Sponsor, with the registration of the Preferred Securities under the
Exchange Act, if required, and the preparation and filing of all
periodic and other reports and other documents pursuant to the
foregoing;
(D) execute the Trust Securities on behalf of the Issuer Trust
in accordance with this Declaration of Trust;
(E) execute and deliver an application for a taxpayer
identification number for the Issuer Trust;
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(F) execute on behalf of the Issuer Trust any documents that
the Administrative Trustees have the power to execute pursuant to
this Declaration of Trust, including without limitation Junior
Subordinated Debenture Subscription Agreements, Common Securities
Subscription Agreements, a Certificate Depositary Agreement and an
Expense Agreement, all by and between the Issuer Trust and the
Sponsor; and
(G) take any action incidental to the foregoing as necessary
or advisable to give effect to the terms of this Declaration of
Trust (and any actions taken in furtherance of the above prior to
the date of this Declaration of Trust by the Administrative Trustees
are hereby ratified and confirmed in all respects).
(ii) The Property Trustee shall have the power and authority to act
on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and any
other payments made in respect of the Junior Subordinated Debentures
in the Payment Account;
(D) the distribution of amounts owed to the Holders in respect
of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges
of a holder of the Junior Subordinated Debentures;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Junior Subordinated
Debentures to the Holders in accordance with this Declaration of
Trust;
(G) the distribution of the Trust Property in accordance with
the terms of this Declaration of Trust;
(H) to the extent provided in this Declaration of Trust, the
winding up of the affairs of and liquidation of the Issuer Trust and
the execution of the certificate of cancellation with the Secretary
of State of the State of Delaware; and
(I) after an Event of Default (other than under the definition
of such term if such Event of Default is by or with respect to the
Property Trustee), compliance with the provisions of this
Declaration of Trust and the taking of any action to give effect to
the terms of this Declaration of Trust and protect and conserve the
Trust Property for the benefit of the Holders (without consideration
of the effect of any such action on any particular Holder);
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provided, however, that nothing in this Section 2.7(a)(ii) shall require the
Property Trustee to take any action that is not otherwise required in this
Declaration of Trust.
(b) So long as this Declaration of Trust remains in effect, the Issuer
Trust (or the Issuer Trustees or Administrative Trustees acting on behalf of the
Issuer Trust) shall not undertake any business, activities or transaction except
as expressly provided herein or contemplated hereby. In particular, neither the
Issuer Trustees nor the Administrative Trustees shall (i) acquire any
investments, reinvest the proceeds derived from investments, or engage in any
activities not authorized by this Declaration of Trust, (ii) sell, assign,
transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the
Trust Property or interests therein, including to Holders, except as expressly
provided herein, (iii) take any action that would reasonably be expected to
cause the Issuer Trust to fail or cease to qualify as a grantor trust for United
States Federal income tax purposes or to cause the Issuer Trust to become
taxable as a corporation or a partnership for United States Federal income tax
purposes, (iv) incur any indebtedness for borrowed money or issue any other
debt, (v) issue any securities or other evidences of beneficial ownership of, or
beneficial interests in, the Issuer Trust other than the Trust Securities or
(vi) take or consent to any action that would result in the placement of a Lien
on any of the Trust Property. The Property Trustee shall defend all claims and
demands of all Persons at any time claiming any Lien on any of the Trust
Property adverse to the interest of the Issuer Trust or the Holders in their
capacity as Holders.
(c) In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the right and responsibility to assist the Issuer Trust with
respect to, or effect on behalf of the Issuer Trust, the following (and any
actions taken by the Sponsor in furtherance of the following prior to the date
of this Declaration of Trust are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Issuer Trust, and execution on
behalf of the Issuer Trust, of a registration statement, and a prospectus
in relation to the Preferred Securities, including any amendments thereto
and the taking of any action necessary or desirable to sell the Preferred
Securities in a transaction or a series of transactions not exempt from
the registration requirements of the Securities Act;
(ii) the determination of the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and the determination of any and all such acts, other than
actions that must be taken by or on behalf of the Issuer Trust, and the
advice to the Issuer Trustees of actions they must take on behalf of the
Issuer Trust, and the preparation for execution and filing of any
documents to be executed and filed by the Issuer Trust or on behalf of the
Issuer Trust, as the Sponsor deems necessary or advisable in order to
comply with the applicable laws of any such States in connection with the
sale of the Preferred Securities;
(iii) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of the
Preferred Securities;
(iv) compliance with the listing requirements of the Preferred
Securities upon such securities exchange or exchanges as shall be
determined by the Sponsor, the
15
registration of the Preferred Securities under the Exchange Act, if
required, and the preparation and filing of all periodic and other reports
and other documents pursuant to the foregoing; and
(v) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative
Trustees and the Property Trustee are authorized and directed to conduct the
affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer
Trust will not be deemed to be an "investment company" required to be registered
under the Investment Company Act, and will not be taxable as a corporation, a
partnership or any other arrangement other than as a grantor trust for United
States Federal income tax purposes and so that the Junior Subordinated
Debentures will be treated as indebtedness of the Sponsor for United States
Federal income tax purposes. In this connection, the Property Trustee and the
Holders of Common Securities are authorized to take any action, not inconsistent
with applicable law, the Certificate of Trust or this Declaration of Trust, that
the Property Trustee and Holders of Common Securities determine in their
discretion to be necessary or desirable for such purposes, as long as such
action does not adversely affect in any material respect the interests of the
Holders of the Outstanding Preferred Securities. In no event shall the
Administrative Trustees or the Issuer Trustees be liable to the Issuer Trust or
the Holders for any failure to comply with this section that results from a
change in law or regulations or in the interpretation thereof.
SECTION 2.8. Assets of Trust.
The assets of the Issuer Trust shall consist solely of the Trust Property.
SECTION 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Issuer Trust and the Holders in
accordance with this Declaration of Trust.
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and its agents shall have exclusive
control and sole right of withdrawal with respect to the Payment Account for the
purpose of making deposits in and withdrawals from the Payment Account in
accordance with this Declaration of Trust. All monies and other property
deposited or held from time to time in the Payment Account shall be held by the
Property Trustee in the Payment Account for the exclusive benefit of the Holders
and for distribution as herein provided, including (and subject to) any priority
of payments provided for herein.
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(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Junior Subordinated Debentures.
Amounts held in the Payment Account shall not be invested by the Property
Trustee pending distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in the
Trust Property, and Distributions (including of Additional Amounts) will be made
on the Trust Securities at the rate and on the dates that payments of interest
(including of Additional Interest, as defined in the Indenture) are made on the
Junior Subordinated Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative and
will accumulate whether or not there are funds of the Issuer Trust
available for the payment of Distributions. Distributions shall accumulate
from and including June ___, 2006, and, except in the event (and to the
extent) that the Sponsor exercises its right to defer the payment of
interest on the Junior Subordinated Debentures pursuant to the Indenture,
shall be payable quarterly in arrears not later than 10:00 a.m. (New York
City time) on March ___, June ___, September ___ and December ___ of each
year, commencing on September ___, 2006. If any date on which a
Distribution is otherwise payable on the Trust Securities is not a
Business Day, then the payment of such Distribution shall be made on the
next succeeding day that is a Business Day (without any interest or other
payment in respect of any such delay), with the same force and effect as
if made on the date on which such payment was originally payable (each
date on which distributions are payable in accordance with this Section
4.1(a), a "Distribution Date"). The amount of Distributions payable
pursuant to (a)(ii) and (a)(iii) of this Section for any period shall
include any Additional Amounts in respect of such period.
(ii) The Trust Securities shall be entitled to Distributions payable
at a rate of ____% per annum of the Liquidation Amount of the Trust
Securities, subject to an increase in the rate pursuant to (a)(iii) of
this Section. The amount of Distributions payable for any period less than
a full Distribution period shall be computed on the basis of a 360-day
year of twelve 30-day months and the actual number of days elapsed in a
partial month in a period. Distributions on the Trust Securities will
accumulate from and including the most recent Distribution Date to which
Distributions have been paid or duly provided for, or, if no Distributions
have been paid or duly provided for, from and including June ___, 2006 to
but excluding the date the Liquidation Amount has been paid or duly made
available for payment. Distributions payable for each full Distribution
period will be computed by dividing the distribution rate per annum by
four (4).
(iii) If a Special Event occurs, beginning on the 30th calendar day
following the date on which a Special Event occurs through and including
the earlier of a Special Event Termination Date and the maturity date of
the Junior Subordinated Debentures (an
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"Increased Rate Period"), the Outstanding Trust Securities shall be
entitled to Distributions payable at a rate of ____% per annum of the
Liquidation Amount of the Trust Securities. The amount of Distributions
payable for any Increased Rate Period shall be computed on the basis of a
360-day year of twelve 30-day months and the actual number of days elapsed
in such period. Following the Special Event Termination Date, the Trust
Securities shall be entitled to Distributions payable as provided in
Section 4.1(a)(ii) above.
(iv) So long as no Debenture Event of Default has occurred and is
continuing, the Sponsor has the right under the Indenture to defer the
payment of interest on the Junior Subordinated Debentures at any time and
from time to time for a period not exceeding six consecutive quarterly
periods (an "Extension Period"), provided that no Extension Period may
extend beyond the stated maturity of the Junior Subordinated Debentures.
As a consequence of any such deferral, quarterly Distributions on the
Trust Securities by the Issuer Trust will also be deferred to the extent
and except as provided in the Junior Subordinated Debentures, and the
amount of Distributions to which Holders of the Trust Securities are
entitled that have been so deferred will accumulate additional
Distributions thereon at the rate per annum as provided for in (a)(ii) and
(a)(iii) of this Section, compounded quarterly from and including the most
recent Distribution payment date on which Distributions were paid,
computed on the basis of a 360-day year of twelve 30-day months and the
actual number of days elapsed in a partial month in such period.
Additional Distributions payable for each full Distribution period will be
computed by dividing the rate per annum by four (4). The term
"Distributions" as used in Section 4.1 shall include any such additional
Distributions provided pursuant to this Section 4.1(a)(iv).
(v) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable not later
than 10:00 a.m. (New York City time) on each Distribution Date only to the
extent that the Issuer Trust has funds then on hand and available in the
Payment Account for the payment of such Distributions.
(b) Distributions on the Trust Securities with respect to a Distribution
Date shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities at the close of business on the relevant
record date, which shall be at the close of business on the 15th calendar day
next preceding the relevant Distribution Date, whether or not a Business Day.
SECTION 4.2. Redemption.
(a) On each Debenture Redemption Date and on the stated maturity of the
Junior Subordinated Debentures, the Issuer Trust will be required to redeem a
Like Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall state:
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(i) the Redemption Date;
(ii) the Redemption Price or, if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the manner
of calculation of the Redemption Price provided pursuant to the Indenture
together with a statement that the Redemption Price will be calculated on
the third Business Day prior to the Redemption Date (and if the manner of
calculation of the Redemption Price is provided, a further notice shall be
sent of the Redemption Price on the date, or as soon as practicable
thereafter, that notice of such Redemption Price is received pursuant to
the Indenture);
(iii) the CUSIP number or CUSIP numbers of the Preferred Securities
affected;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed;
(v) that, on the Redemption Date, the Redemption Price will become
due and payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accumulate on and after said date,
except as provided in Section 4.2(d) below; and
(vi) the place or places where Trust Securities are to be
surrendered for the payment of the Redemption Price.
The Issuer Trust in issuing the Trust Securities shall use "CUSIP" numbers, and
the Property Trustee shall indicate the "CUSIP" numbers of the Trust Securities
in notices of redemption and related materials as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Trust Securities or as
contained in any notice of redemption and related material.
Any notice of redemption may state that the redemption of the Preferred
Securities may be, at the Sponsor's discretion, subject to the satisfaction of
one or more conditions precedent.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the applicable proceeds from the
contemporaneous redemption of Junior Subordinated Debentures. Redemptions of the
Trust Securities shall be made and the Redemption Price shall be payable in cash
on each Redemption Date only to the extent that the Issuer Trust has funds then
on hand and legally available in the Payment Account for the payment of such
Redemption Price.
(d) If the Issuer Trust gives a notice of redemption in respect of any
Preferred Securities, then, by 12:00 noon, New York City time, on the Redemption
Date, subject to Section 4.2(c), the Property Trustee will, with respect to
Preferred Securities held in book-entry form, irrevocably deposit with the
Clearing Agency for such Preferred Securities, to the extent available therefor,
funds sufficient to pay the applicable Redemption Price and will give such
Clearing Agency irrevocable instructions and authority to pay the Redemption
Price to the Holders of the Preferred Securities. With respect to Preferred
Securities that are not held in book-entry form, the Property Trustee, subject
to Section 4.2(c), will irrevocably deposit with the
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Paying Agent, to the extent available therefor, funds sufficient to pay the
applicable Redemption Price and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price to the Holder of the
Preferred Securities upon surrender of their Preferred Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then, upon the date of such deposit, all rights of
Holders holding Trust Securities so called for redemption will cease, except the
right of such Holders to receive the Redemption Price and any Distribution
payable in respect of the Trust Securities on or prior to the Redemption Date,
but without interest, and such Securities will cease to be Outstanding. In the
event that any date on which any applicable Redemption Price is payable is not a
Business Day, then payment of the applicable Redemption Price payable on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay) with the same force
and effect as if made on such date. In the event that payment of the Redemption
Price in respect of any Trust Securities called for redemption is improperly
withheld or refused and not paid either by the Issuer Trust or by the Sponsor
pursuant to the Guarantee Agreement, Distributions on such Trust Securities will
continue to accumulate, as set forth in Section 4.1, from and including the
Redemption Date originally established by the Issuer Trust for such Trust
Securities to but excluding the date such applicable Redemption Price is
actually paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the applicable Redemption Price.
(e) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of such Trust Securities to be redeemed shall be allocated
pro rata to the Common Securities and the Preferred Securities based on the
relative aggregate Liquidation Amounts of such classes. The particular Preferred
Securities to be redeemed shall be selected on a pro rata basis based on their
respective Liquidation Amounts not more than 60 days prior to the Redemption
Date by the Property Trustee from the Outstanding Preferred Securities not
previously called for redemption by any method the Property Trustee deems fair
and appropriate, or if the Preferred Securities are then held in the form of a
Global Preferred Security in accordance with the customary procedures for the
Clearing Agency. The Property Trustee shall promptly notify the Securities
Registrar in writing of the Preferred Securities selected for redemption and, in
the case of any Preferred Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of this Declaration
of Trust, unless the context otherwise requires, all provisions relating to the
redemption of Preferred Securities shall relate, in the case of any Preferred
Securities redeemed or to be redeemed only in part, to the portion of the
aggregate Liquidation Amount of Preferred Securities that has been or is to be
redeemed.
SECTION 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if applicable)
on, the Redemption Price of, and the Liquidation Distribution in respect of, the
Trust Securities, as applicable, shall be made, subject to Section 4.2(e), pro
rata among the Common Securities and the Preferred Securities based on the
Liquidation Amount of such Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date an Event of Default resulting from
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a Debenture Default shall have occurred and be continuing, no payment of any
Distribution (including any Additional Amounts) on, Redemption Price of, or
Liquidation Distribution in respect of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions (including any Additional Amounts) on all Outstanding
Preferred Securities for all Distribution periods terminating on or prior
thereto, or, in the case of payment of the Redemption Price, the full amount of
such Redemption Price on all Outstanding Preferred Securities then called for
redemption, or in the case of payment of the Liquidation Distribution the full
amount of such Liquidation Distribution on all Outstanding Preferred Securities,
shall have been made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in cash of all
Distributions (including any Additional Amounts) on, the Redemption Price of, or
the Liquidation Distribution in respect of Preferred Securities then due and
payable. The existence of an Event of Default does not entitle the Holders of
Trust Securities to accelerate the maturity thereof.
(b) In the case of the occurrence of any Event of Default resulting from a
Debenture Default, the Holder of the Common Securities shall have no right to
act with respect to any such Event of Default under this Declaration of Trust
until the effects of all such Events of Default with respect to the Preferred
Securities have been cured, waived or otherwise eliminated. Until all such
Events of Default under this Declaration of Trust with respect to the Preferred
Securities have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Preferred Securities
and not on behalf of the Holder of the Common Securities, and only the Holders
of the Preferred Securities will have the right to direct the Property Trustee
to act on their behalf.
SECTION 4.4. Payment Procedures.
Payments of Distributions (including any Additional Amounts) in respect of
the Preferred Securities shall be made by check mailed to the address of the
Person entitled thereto as such address shall appear on the Securities Register
or, if the Preferred Securities are held by a Clearing Agency, such
Distributions shall be made to the Clearing Agency in immediately available
funds, which will credit the relevant accounts on the applicable Distribution
Dates. Payments of Distributions, other than Distributions payable at maturity,
to Holders of $1,000,000 or more in aggregate Liquidation Amount of Preferred
Securities may be made by wire transfer of immediately available funds upon
written request of such Holder to (and appropriate wire transfer instructions
received by) the Securities Registrar not later than 15 calendar days prior to
the date on which the Distribution is payable. Payments in respect of the Common
Securities shall be made in such manner as shall be mutually agreed between the
Property Trustee and the Holder of the Common Securities.
SECTION 4.5. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared), at
the Sponsor's expense, and file all United States Federal, state and local tax
and information returns and reports required to be filed by or in respect of the
Issuer Trust. In this regard, the Administrative Trustees shall (a) prepare and
file (or cause to be prepared and filed) all Internal Revenue Service
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forms required to be filed in respect of the Issuer Trust in each taxable year
of the Issuer Trust and (b) prepare and furnish (or cause to be prepared and
furnished) to each Holder all Internal Revenue Service forms required to be
provided by the Issuer Trust. The Administrative Trustees shall provide the
Sponsor and the Property Trustee with a copy of all such returns and reports
promptly after such filing or furnishing. The Issuer Trustees shall comply with
United States Federal withholding and backup withholding tax laws and
information reporting requirements with respect to any payments to Holders under
the Trust Securities.
On or before December 15 of each year during which any Preferred
Securities are Outstanding, the Administrative Trustees shall furnish to the
Property Trustee such information as may be reasonably requested by the Property
Trustee in order that the Property Trustee may prepare the information which it
is required to report for such year on Internal Revenue Service Forms 1096 and
1099 pursuant to Section 6049 of the Code. Such information shall include the
amount of original issue discount, if any, with respect to each Outstanding
Preferred Security during such year.
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust.
Upon receipt under the Junior Subordinated Debentures of Additional Sums,
the Property Trustee shall promptly pay, or cause the Administrative Trustees to
pay in connection with the filing of any tax returns or reports pursuant to
Section 4.5, any taxes, duties or governmental charges of whatsoever nature
(other than withholding taxes) imposed on the Issuer Trust by the United States
or any other taxing authority.
SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Preferred Securities (or
Owner) shall be reduced by the amount of any corresponding payment such Holder
has directly received pursuant to Section 5.01 of the Indenture or Section 5.13
of this Declaration of Trust.
SECTION 4.8. Liability of the Holder of Common Securities.
The Holder of Common Securities shall be liable for the debts and
obligations of the Issuer Trust (other than with respect to the Trust
Securities) to the extent not satisfied out of the Issuer Trust's assets.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
Upon the creation of the Issuer Trust and the contribution by the Sponsor
pursuant to Section 2.3 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are Outstanding, the Sponsor shall be
the sole beneficial owner of the Issuer Trust.
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SECTION 5.2. The Trust Securities Certificates.
(a) The Trust Securities Certificates shall be issued in multiples of $25
and shall be executed on behalf of the Issuer Trust by manual or facsimile
signature of at least one Administrative Trustee. Trust Securities Certificates
bearing the manual signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Issuer
Trust, shall be validly issued and entitled to the benefits of this Declaration
of Trust, notwithstanding that such individuals or any of them shall have ceased
to be so authorized prior to the delivery of such Trust Securities Certificates
or did not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
Holder, and shall be entitled to the rights and subject to the obligations of a
Holder hereunder, upon due registration of such Trust Securities Certificate in
such transferee's name pursuant to Section 5.5.
(b) Upon their original issuance, Preferred Securities Certificates shall
be issued in the form of one or more fully registered Global Preferred
Securities Certificates which will be deposited with or on behalf of the
Depositary and registered in the name of the Depositary's nominee. Unless and
until it is exchangeable in whole for the Preferred Securities in definitive
form, a global security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor of such Depositary or a nominee of such successor.
(c) Common Securities Certificates representing the Common Securities
shall be issued to the Sponsor in the form of one or more definitive Common
Securities Certificates.
SECTION 5.3. Execution and Delivery of Trust Securities Certificates.
At the Closing Date, and on the date, if any, on which the Underwriters
exercise their option to purchase additional Preferred Securities pursuant to
the terms of the Underwriting Agreement, as applicable, at least one of the
Administrative Trustees shall cause Trust Securities Certificates, in an
aggregate Liquidation Amount as provided in Sections 2.4 and 2.5, to be executed
on behalf of the Issuer Trust by manual or facsimile signature. The Preferred
Securities so executed shall be delivered to the Property Trustee and upon such
delivery the Property Trustee shall manually authenticate upon the written order
of the Sponsor such Preferred Securities Certificates and deliver such Preferred
Securities Certificates upon the written order of the Sponsor, executed by an
authorized officer thereof, without further corporate action by the Sponsor, in
authorized denominations.
SECTION 5.4. Global Preferred Security.
(a) Any Global Preferred Security issued under this Declaration of Trust
shall be registered in the name of the nominee of the Clearing Agency and
delivered to such custodian therefor, and such Global Preferred Security shall
constitute a single Preferred Security for all purposes of this Declaration of
Trust.
(b) Notwithstanding any other provision in this Declaration of Trust, a
Global Preferred Security may not be exchanged in whole or in part for Preferred
Securities registered,
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and no transfer of the Global Preferred Security in whole or in part may be
registered, in the name of any Person other than the Clearing Agency for such
Global Preferred Security, or its nominee thereof unless (i) such Clearing
Agency advises the Property Trustee in writing that such Clearing Agency is no
longer willing or able to properly discharge its responsibilities as Clearing
Agency with respect to such Global Preferred Security or if it ceases to be a
Clearing Agency under the Exchange Act, and the Sponsor is unable to locate a
qualified successor within 90 days after receiving such notice or becoming aware
that the Depositary is no longer so registered, or (ii) the Issuer Trust at its
option advises the Depositary in writing that it elects to terminate the
book-entry system through the Clearing Agency.
(c) If a Preferred Security is to be exchanged in whole or in part for a
beneficial interest in a Global Preferred Security, then either (i) such Global
Preferred Security shall be so surrendered for exchange or cancellation as
provided in this Article V or (ii) the aggregate Liquidation Amount thereof
shall be reduced or increased by an amount equal to the portion thereof to be so
exchanged or cancelled or equal to the Liquidation Amount of such other
Preferred Security to be so exchanged for a beneficial interest therein, as the
case may be, by means of an appropriate adjustment made on the records of the
Security Registrar, whereupon the Property Trustee, in accordance with the
Applicable Procedures, shall instruct the Clearing Agency or its authorized
representative to make a corresponding adjustment to its records. Upon any such
surrender or adjustment of a Global Preferred Security by the Clearing Agency,
accompanied by registration instructions, the Property Trustee shall, subject to
Section 5.4(b) and as otherwise provided in this Article V, authenticate and
deliver any Preferred Securities issuable in exchange for such Global Preferred
Security (or any portion thereof) in accordance with the instructions of the
Clearing Agency. The Property Trustee shall not be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be fully
protected in relying on, such instructions.
(d) Every Preferred Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Preferred Security or
any portion thereof, whether pursuant to this Article V or Article IV or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Preferred Security, unless such Global Preferred Security is registered
in the name of a Person other than the Clearing Agency for such Global Preferred
Security or a nominee thereof.
(e) The Clearing Agency or its nominee, as the registered owner of a
Global Preferred Security, shall be considered the Holder of the Preferred
Securities represented by such Global Preferred Security for all purposes under
this Declaration of Trust and the Preferred Securities, and owners of beneficial
interests in such Global Preferred Security shall hold such interests pursuant
to the Applicable Procedures and, except as otherwise provided herein, shall not
be entitled to receive physical delivery of any such Preferred Securities in
definitive form and shall not be considered the Holders thereof under this
Declaration of Trust. Accordingly, any such owner's beneficial interest in the
Global Preferred Security shall be shown only on, and the transfer of such
interest shall be effected only through, records maintained by the Clearing
Agency or its nominee. Neither the Property Trustee nor the Securities Registrar
shall have any liability in respect of any transfers effected by the Clearing
Agency.
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(f) The rights of owners of beneficial interests in a Global Preferred
Security shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such owners and the
Clearing Agency.
SECTION 5.5. Registration of Transfer and Exchange Generally; Certain
Transfers and Exchanges; Preferred Securities Certificates.
(a) The Property Trustee shall keep or cause to be kept at its Corporate
Trust Office a register or registers for the purpose of registering Preferred
Securities Certificates and transfers and exchanges of Preferred Securities
Certificates in which the registrar and transfer agent with respect to the
Preferred Securities (the "Securities Registrar"), subject to such reasonable
regulations as it may prescribe, shall provide for the registration of Preferred
Securities Certificates and Common Securities Certificates (subject to Section
5.11 in the case of Common Securities Certificates) and registration of
transfers and exchanges of Preferred Securities Certificates as herein provided.
Such register is herein sometimes referred to as the "Securities Register." The
Property Trustee is hereby appointed "Securities Registrar" for the purpose of
registering Preferred Securities and transfers of Preferred Securities as herein
provided.
Upon surrender for registration of transfer of any Preferred Security at
the offices or agencies of the Property Trustee designated for that purpose an
Administrative Trustee shall execute, and the Property Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Preferred Securities of the same series of any
authorized denominations of like tenor and aggregate Liquidation Amount and
bearing such legends as may be required by this Declaration of Trust.
At the option of the Holder, Preferred Securities may be exchanged for
other Preferred Securities of any authorized denominations, of like tenor and
aggregate Liquidation Amount and bearing such legends as may be required by this
Declaration of Trust, upon surrender of the Preferred Securities to be exchanged
as such office or agency. Whenever any securities are so surrendered for
exchange, an Administrative Trustee shall execute and the Property Trustee shall
authenticate and deliver the Preferred Securities that the Holder making the
exchange is entitled to receive.
All Preferred Securities issued upon any transfer or exchange of Preferred
Securities shall be the valid obligations of the Issuer Trust, evidencing the
same debt, and entitled to the same benefits under this Declaration of Trust, as
the Preferred Securities surrendered upon such transfer or exchange.
Every Preferred Security presented or surrendered for transfer or exchange
shall (if so required by the Property Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Property Trustee and the Securities Registrar, duly executed by the Holder
thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or exchange
of Preferred Securities, but the Property Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Preferred Securities.
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Neither the Issuer Trust nor the Property Trustee shall be required,
pursuant to the provisions of this Section, (i) to issue, register the transfer
of or exchange any Preferred Security during a period beginning at the opening
of business 15 days before the first mailing of the notice of redemption, or
(ii) to register the transfer of or exchange any Preferred Security so selected
for redemption in whole or in part, except, in the case of any such Preferred
Security to be redeemed in part, any portion thereof not to be redeemed.
(b) Trust Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration of Trust.
To the fullest extent permitted by law, any transfer or purported transfer of
any Trust Security not made in accordance with this Declaration of Trust shall
be null and void. A Preferred Security that is not a Global Preferred Security
may be transferred, in whole or in part, to a Person who takes delivery in the
form of another Trust Security that is not a Global Security as provided in
Section 5.5(a). Subject to this Section 5.5, Preferred Securities shall be
freely transferable. A beneficial interest in a Global Preferred Security may be
exchanged for a Preferred Security that is not a Global Preferred Security as
provided in Section 5.4.
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered to
the Securities Registrar, or if the Securities Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Securities Registrar and the
Administrative Trustees such security or indemnity as may be required by them to
save each of them harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide purchaser, the
Administrative Trustees, or any one of them, on behalf of the Issuer Trust shall
execute and make available for delivery, and the Property Trustee shall
authenticate, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Trust Securities Certificate, a new Trust Securities Certificate of
like class, tenor and denomination. In connection with the issuance of any new
Trust Securities Certificate under this Section, the Administrative Trustees or
the Securities Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Trust Securities Certificate issued pursuant to this
Section shall constitute conclusive evidence of an undivided beneficial interest
in the assets of the Issuer Trust corresponding to that evidenced by the lost,
stolen or destroyed Trust Certificate, as if originally issued, whether or not
the lost, stolen or destroyed Trust Securities Certificate shall be found at any
time.
SECTION 5.7. Persons Deemed Holders.
The Issuer Trustees or the Securities Registrar shall treat the Person in
whose name any Trust Securities are issued as the owner of such Trust Securities
for the purpose of receiving Distributions and for all other purposes
whatsoever, and none of the Issuer Trustees, the Administrative Trustees nor the
Securities Registrar shall be bound by any notice to the contrary.
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SECTION 5.8. Access to List of Holders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold the
Sponsor, the Property Trustee, or the Administrative Trustees accountable by
reason of the disclosure of its name and address, regardless of the source from
which such information was derived.
SECTION 5.9. Maintenance of Office or Agency.
The Property Trustee shall designate, with the consent of the
Administrative Trustees, which consent shall not be unreasonably withheld, an
office or offices or agency or agencies where Preferred Securities Certificates
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Issuer Trustees in respect of the Trust Securities
Certificates may be served. The Property Trustee initially designates its
Corporate Trust Office at Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-0001; Attention: Corporate Trust Administration, as
its corporate trust office for such purposes. The Property Trustee shall give
prompt written notice to the Sponsor, the Administrative Trustees and to the
Holders of any change in the location of the Securities Register or any such
office or agency.
SECTION 5.10. Appointment of Paying Agent.
The Paying Agent shall make Distributions to Holders from the Payment
Account and shall report the amounts of such Distributions to the Property
Trustee and the Administrative Trustees. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account solely for the
purpose of making the Distributions referred to above. The Property Trustee may
revoke such power and remove any Paying Agent in its sole discretion. The Paying
Agent shall initially be the Property Trustee. Any Person acting as Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Administrative Trustees and the Property Trustee. In the event that the Property
Trustee shall no longer be the Paying Agent or a successor Paying Agent shall
resign or its authority to act be revoked, the Property Trustee shall appoint a
successor (which shall be a bank or trust company) that is reasonably acceptable
to the Administrative Trustees to act as Paying Agent. Such successor Paying
Agent or any additional Paying Agent appointed by the Property Trustee shall
execute and deliver to the Issuer Trustees an instrument in which such successor
Paying Agent or additional Paying Agent shall agree with the Issuer Trustees
that as Paying Agent, such successor Paying Agent or additional Paying Agent
will hold all sums, if any, held by it for payment to the Holders in trust for
the benefit of the Holders entitled thereto until such sums shall be paid to
such Holders. The Paying Agent shall return all unclaimed funds to the Property
Trustee and upon removal of a Paying Agent such Paying Agent shall also return
all funds in its possession to the Property Trustee. The provisions of Sections
8.1, 8.3 and 8.6 herein shall apply to the Bank also in its role as Paying
Agent, for so long as the Bank shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in this
Declaration of Trust to the Paying Agent shall include any co-paying agent
chosen by the Property Trustee unless the context requires otherwise.
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SECTION 5.11. Ownership of Common Securities by Sponsor.
At the Closing Date, the Sponsor shall acquire and retain beneficial and
record ownership of the Common Securities. Neither the Sponsor nor any successor
Holder of the Common Securities may transfer less than all the Common
Securities, and the Sponsor or any such successor Holder may transfer the Common
Securities only (i) in connection with a consolidation or merger of the Sponsor
into another Person or any conveyance, transfer or lease by the Sponsor of its
properties and assets substantially as an entirety to any Person, pursuant to
Section 9.01 of the Indenture, or (ii) to an Affiliate of the Sponsor in
compliance with applicable law (including the Securities Act and applicable
state securities and blue sky laws). To the fullest extent permitted by law, any
attempted transfer of the Common Securities, other than as set forth in the
immediately preceding sentence, shall be void. The Administrative Trustees shall
cause each Common Securities Certificate issued to the Sponsor to contain a
legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE SPONSOR OR AN
AFFILIATE OF THE SPONSOR IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF
THE DECLARATION OF TRUST."
SECTION 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Holders is
required under this Declaration of Trust, for so long as Preferred Securities
are represented by a Global Preferred Securities Certificate, the Administrative
Trustees and the Issuer Trustees shall give all such notices and communications
specified herein to be given to the Clearing Agency, and shall have no
obligations to the Owners.
SECTION 5.13. Rights of Holders.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Holders shall not have any right or title therein other than the undivided
beneficial interest in the assets of the Issuer Trust conferred by their Trust
Securities and they shall have no right to call for any partition or division of
property, profits or rights of the Issuer Trust except as described below. The
Trust Securities shall be personal property giving only the rights specifically
set forth therein and in this Declaration of Trust. The Trust Securities shall
have no preemptive or similar rights and when issued and delivered to Holders
against payment of the purchase price therefor, as provided herein, will be
fully paid and nonassessable by the Issuer Trust. Except as otherwise provided
in Section 4.8, the Holders of the Trust Securities, in their capacities as
such, shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if, upon a
Debenture Event of Default, the Debt Securities Trustee fails or the holders of
not less than 25% in principal amount of the outstanding Junior Subordinated
Debentures fail to declare the principal of all of the Junior Subordinated
Debentures to be immediately due and payable, the Holders of at least 25% in
Liquidation Amount of the Preferred Securities then Outstanding shall have such
right to make such declaration by a notice in writing to the Property Trustee,
the Sponsor and the Debt Securities Trustee.
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At any time after such a declaration of acceleration with respect to the
Junior Subordinated Debentures has been made and before a judgment or decree for
payment of the money due has been obtained by the Debt Securities Trustee as
provided in the Indenture, the Holders of a Majority in Liquidation Amount of
the Preferred Securities, by written notice to the Property Trustee, the Sponsor
and the Debt Securities Trustee, may waive all defaults and rescind and annul
such declaration and its consequences if:
(i) the Sponsor has paid or deposited with the Debt Securities
Trustee a sum sufficient to pay
(A) all overdue installments of interest on all of the Junior
Subordinated Debentures,
(B) any accrued Additional Interest on all of the Junior
Subordinated Debentures,
(C) the principal of (and premium, if any, on) any Junior
Subordinated Debentures which have become due otherwise than by such
declaration of acceleration and interest and Additional Interest
thereon at the rate borne by the Junior Subordinated Debentures, and
(D) all sums paid or advanced by the Debt Securities Trustee
under the Indenture and the reasonable compensation, expenses,
disbursements and advances of the Debt Securities Trustee and the
Property Trustee, their agents and counsel; and
(ii) all Debenture Defaults with respect to the Junior Subordinated
Debentures, other than the non-payment of the principal of the Junior
Subordinated Debentures which has become due solely by such acceleration,
have been cured or waived as provided in Section 5.10 of the Indenture.
If the Property Trustee fails to annul any such declaration and waive such
default, the Holders of at least a Majority in Liquidation Amount of the
Preferred Securities shall also have the right to rescind and annul such
declaration and its consequences by written notice to the Sponsor, the Property
Trustee and the Debt Securities Trustee, subject to the satisfaction of the
conditions set forth in Clause (i) and (ii) of this Section 5.13(b).
The Holders of at least a Majority in Liquidation Amount of the Preferred
Securities may, on behalf of the Holders of all the Preferred Securities, waive
any past default under the Indenture, except a default in the payment of
principal or interest (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Debt Securities Trustee) or a default
in respect of a covenant or provision which under the Indenture cannot be
modified or amended without the consent of the holder of each outstanding Junior
Subordinated Debentures. No such rescission shall affect any subsequent default
or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of the Preferred
Securities all or part of which is
29
represented by Global Preferred Securities, a record date shall be established
for determining Holders of Outstanding Preferred Securities entitled to join in
such notice, which record date shall be at the close of business on the day the
Property Trustee receives such notice. The Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to join in
such notice, whether or not such Holders remain Holders after such record date;
provided, that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day which is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 5.13(b).
(c) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Declaration of
Trust and the Indenture, upon the occurrence of a Debenture Event of Default,
any Holder of Preferred Securities shall have the right to institute a
proceeding directly against the Sponsor, pursuant to Section 5.01 of the
Indenture, for enforcement of payment to such Holder of the principal amount of
or interest on Junior Subordinated Debentures having an aggregate principal
amount equal to the aggregate Liquidation Amount of the Preferred Securities of
such Holder (a "Direct Action"). Except as set forth in Sections 5.13(b) and
5.13(c), the Holders of Preferred Securities shall have no right to exercise
directly any right or remedy available to the holders of, or in respect of, the
Junior Subordinated Debentures.
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Holder's Voting Rights.
(a) Except as provided in this Declaration of Trust and in the Indenture
and as otherwise required by law, no Holder of Preferred Securities shall have
any right to vote or in any manner otherwise control the administration,
operation and management of the Issuer Trust or the obligations of the parties
hereto, nor shall anything herein set forth or contained in the terms of the
Trust Securities Certificates be construed so as to constitute the Holders from
time to time as members of an association.
(b) So long as any Junior Subordinated Debentures are held by the Property
Trustee on behalf of the Issuer Trust, the Property Trustee shall not (i) direct
the time, method and place of conducting any proceeding for any remedy available
to the Debt Securities Trustee, or executing any trust or power conferred on the
Property Trustee with respect to such Junior Subordinated Debentures, (ii) waive
any past default that may be waived under Section 5.10 of the Indenture, (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Junior Subordinated Debentures shall be due and payable or (iv) consent to
any amendment,
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modification or termination of the Indenture or the Junior Subordinated
Debentures, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of at least a Majority in
Liquidation Amount of the Preferred Securities, provided, however, that where a
consent under the Indenture would require the consent of each Holder of Junior
Subordinated Debentures affected thereby, no such consent shall be given by the
Property Trustee without the prior written consent of each Holder of Preferred
Securities. The Property Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of Preferred Securities, except
by a subsequent vote of the Holders of Preferred Securities. The Property
Trustee shall promptly notify all Holders of the Preferred Securities of any
notice of default received with respect to the Junior Subordinated Debentures.
In addition to obtaining the foregoing approvals of the Holders of the Preferred
Securities, prior to taking any of the foregoing actions, the Property Trustee
shall, at the expense of the Sponsor, obtain an Opinion of Counsel experienced
in such matters to the effect that such action will not cause the Issuer Trust
to be taxable as a corporation, a partnership or any other arrangement other
than as a grantor trust for United States Federal income tax purposes.
(c) If any proposed amendment to the Declaration of Trust provides for, or
the Issuer Trust otherwise proposes to effect, (i) any action that would
adversely affect in any material respect the interests, powers, preferences or
special rights of the Preferred Securities, whether by way of amendment to the
Declaration of Trust or otherwise, or (ii) the dissolution, winding-up or
termination of the Issuer Trust, other than pursuant to the terms of this
Declaration of Trust, then the Holders of Outstanding Preferred Securities as a
class will be entitled to vote on such amendment or proposal and such amendment
or proposal shall not be effective except with the approval of the Holders of at
least a Majority in Liquidation Amount of the Preferred Securities.
SECTION 6.2. Notice of Meetings.
Notice of all meetings of the Holders, stating the time, place and purpose
of the meeting, shall be given by the Property Trustee pursuant to Section 10.8
to each Holder of record, at his registered address, at least 15 days and not
more than 90 days before the meeting. At any such meeting, any business properly
before the meeting may be so considered whether or not stated in the notice of
the meeting. Any adjourned meeting may be held as adjourned without further
notice.
SECTION 6.3. Meetings of Holders.
No annual meeting of Holders is required to be held. The Property Trustee,
however, shall call a meeting of Holders to vote on any matter upon the written
request of the Holders of record of 25% of the aggregate Liquidation Amount of
the Preferred Securities and the Administrative Trustees or the Property Trustee
may, at any time in their discretion, call a meeting of Holders of Preferred
Securities to vote on any matters as to which Holders are entitled to vote.
Holders of at least a Majority in Liquidation Amount of the Preferred
Securities, present in person or represented by proxy, shall constitute a quorum
at any meeting of Holders of the Preferred Securities.
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If a quorum is present at a meeting, an affirmative vote by the Holders of
record present, in person or by proxy, holding Preferred Securities representing
at least a Majority in Liquidation Amount of the Preferred Securities held by
the Holders present, either in person or by proxy, at such meeting shall
constitute the action of the Holders of Preferred Securities, unless this
Declaration of Trust requires a greater number of affirmative votes.
SECTION 6.4. Voting Rights.
Holders shall be entitled to one vote for each $25 of Liquidation Amount
represented by their Outstanding Trust Securities in respect of any matter as to
which such Holders are entitled to vote.
SECTION 6.5. Proxies, etc.
At any meeting of Holders, any Holder entitled to vote thereat may vote by
proxy, provided that no proxy shall be voted at any meeting unless it shall have
been placed on file with the Property Trustee, or with such other officer or
agent of the Issuer Trust as the Property Trustee may direct, for verification
prior to the time at which such vote shall be taken. Pursuant to a resolution of
the Property Trustee, proxies may be solicited in the name of the Property
Trustee or one or more officers of the Property Trustee. Only Holders of record
shall be entitled to vote. When Trust Securities are held jointly by several
Persons, any one of them may vote at any meeting in person or by proxy in
respect of such Trust Securities, but if more than one of them shall be present
at such meeting in person or by proxy, and such joint owners or their proxies so
present disagree as to any vote to be cast, such vote shall not be received in
respect of such Trust Securities. A proxy purporting to be executed by or on
behalf of a Holder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger. No
proxy shall be valid more than three years after its date of execution.
SECTION 6.6. Holder Action by Written Consent.
Any action which may be taken by Holders at a meeting may be taken without
a meeting and without prior notice if Holders holding at least a Majority in
Liquidation Amount of all Trust Securities entitled to vote in respect of such
action (or such larger proportion thereof as shall be required by any other
provision of this Declaration of Trust) shall consent to the action in writing.
SECTION 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Holders who are entitled to notice of
and to vote at any meeting or by written consent, or to participate in any
distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Declaration of Trust, or for the purpose of any
other action, the Administrative Trustees or Property Trustee may from time to
time fix a date, not more than 90 days prior to the date of any meeting of
Holders or the payment of a distribution or other action, as the case may be, as
a record date for the determination of the identity of the Holders of record for
such purposes.
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SECTION 6.8. Acts of Holders.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Declaration of Trust to be given,
made or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such instrument or
instruments are delivered to the Property Trustee. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Declaration of Trust and (subject to Section 8.1) conclusive in favor of the
Issuer Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which any Issuer Trustee or Administrative Trustee receiving the
same deems sufficient.
The ownership of Trust Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Trust Security shall bind every future Holder of
the same Trust Security and the Holder of every Trust Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Issuer Trustees,
the Administrative Trustees or the Issuer Trust in reliance thereon, whether or
not notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise among the Holders, the Administrative Trustees
or the Issuer Trustees with respect to the authenticity, validity or binding
nature of any request, demand, authorization, direction, consent, waiver or
other Act of such Holder or Issuer Trustee under this Article VI, then the
determination of such matter by the Property Trustee shall be conclusive with
respect to such matter.
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SECTION 6.9. Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Issuer Trust shall be open to inspection by Holders
during normal business hours for any purpose reasonably related to such Holder's
interest as a Holder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee and
the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf of
and as to itself, hereby represents and warrants for the benefit of the Sponsor
and the Holders that:
(a) The Property Trustee is a banking corporation with trust powers, duly
organized, validly existing and in good standing under the laws of Delaware,
with trust power and authority to execute and deliver, and to carry out and
perform its obligations under the terms of this Declaration of Trust.
(b) The execution, delivery and performance by the Property Trustee of
this Declaration of Trust have been duly authorized by all necessary corporate
action on the part of the Property Trustee; and this Declaration of Trust has
been duly executed and delivered by the Property Trustee, and constitutes a
legal, valid and binding obligation of the Property Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such remedies
is considered in a proceeding in equity or at law).
(c) The Delaware Trustee is duly organized, validly existing and in good
standing as a banking corporation under the laws of the State of Delaware, with
trust power and authority to execute and deliver, and to carry out and perform
its obligations under the terms of, the Declaration of Trust.
(d) The execution, delivery and performance by the Delaware Trustee of
this Declaration of Trust have been duly authorized by all necessary corporate
action on the part of the Delaware Trustee; and this Declaration of Trust has
been duly executed and delivered by the Delaware Trustee, and constitutes a
legal, valid and binding obligation of the Delaware Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' right generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such remedies
is considered in a proceeding in equity or at law).
(e) The Delaware Trustee is an entity which has its principal place of
business in the State of Delaware.
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(f) The Property Trustee is a national- or state-chartered bank and has
capital and surplus of at least $50,000,000.
SECTION 7.2. Representations and Warranties of Sponsor.
The Sponsor hereby represents and warrants for the benefit of the Holders
that:
(a) the Trust Securities Certificates issued at the Closing Date on behalf
of the Issuer Trust have been duly authorized and will have been duly and
validly executed, issued and delivered by the Issuer Trustees pursuant to the
terms and provisions of, and in accordance with the requirements of, this
Declaration of Trust, and the Holders will be, as of each such date, entitled to
the benefits of this Declaration of Trust; and
(b) there are no taxes, fees or other governmental charges payable by the
Issuer Trust (or the Issuer Trustees on behalf of the Issuer Trust) under the
laws of the State of Delaware or any political subdivision thereof in connection
with the execution, delivery and performance by either the Property Trustee or
the Delaware Trustee, as the case may be, of this Declaration of Trust.
ARTICLE VIII
THE ISSUER TRUSTEES; THE ADMINISTRATIVE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Issuer Trustees and the
Administrative Trustees shall be as provided by this Declaration of Trust and,
in the case of the Property Trustee, by the Trust Indenture Act. Notwithstanding
the foregoing, no provision of this Declaration of Trust shall require the
Issuer Trustees or the Administrative Trustees to expend or risk their own funds
or otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this
Declaration of Trust relating to the conduct or affecting the liability of or
affording protection to the Issuer Trustees or the Administrative Trustees shall
be subject to the provisions of this Section. Nothing in this Declaration of
Trust shall be construed to release an Administrative Trustee from liability for
its own grossly negligent action, its own grossly negligent failure to act, or
its own willful misconduct. To the extent that, at law or in equity, an Issuer
Trustee or Administrative Trustee has duties and liabilities relating to the
Issuer Trust or to the Holders, such Issuer Trustee or Administrative Trustee
shall not be liable to the Issuer Trust or to any Holder for such Issuer
Trustee's or Administrative Trustee's good faith reliance on the provisions of
this Declaration of Trust. The provisions of this Declaration of Trust, to the
extent that they restrict the duties and liabilities of the Issuer Trustees and
Administrative Trustees otherwise existing at law or in equity, are agreed by
the Sponsor and the Holders to replace such other duties and liabilities of the
Issuer Trustees and Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in respect
of the Trust Securities shall be made only from the revenue and proceeds from
the Trust Property and
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only to the extent that there shall be sufficient revenue or proceeds from the
Trust Property to enable the Property Trustee or a Paying Agent to make payments
in accordance with the terms hereof. Each Holder, by its acceptance of a Trust
Security, agrees that it will look solely to the revenue and proceeds from the
Trust Property to the extent legally available for distribution to it as herein
provided and that neither the Issuer Trustees nor the Administrative Trustees
are personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.1(b) does not limit the liability of the Issuer Trustees expressly set
forth elsewhere in this Declaration of Trust or, in the case of the Property
Trustee, in the Trust Indenture Act.
(c) The Property Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Declaration of Trust (including pursuant to Section 10.10), and no implied
covenants shall be read into this Declaration of Trust against the Property
Trustee. If an Event of Default has occurred (that has not been cured or waived
pursuant to Article V of the Indenture), the Property Trustee shall enforce this
Declaration of Trust for the benefit of the Holders and shall exercise such of
the rights and powers vested in it by this Declaration of Trust, and use the
same degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Declaration of Trust shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Property Trustee shall
be determined solely by the express provisions of this Declaration
of Trust (including pursuant to Section 10.10), and the Property
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Declaration of Trust (including pursuant to Section 10.10); and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this Declaration of
Trust; but in the case of any such certificates or opinions that by
any provision hereof or of the Trust Indenture Act are specifically
required to be furnished to the Property Trustee, the Property
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Declaration
of Trust;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
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(iii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of at least a Majority in Liquidation Amount
of the Preferred Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred upon the Property
Trustee under this Declaration of Trust;
(iv) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Junior Subordinated
Debentures and the Payment Account shall be to deal with such property in
a similar manner as the Property Trustee deals with similar property for
its own account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Declaration of Trust and the
Trust Indenture Act;
(v) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree with the Sponsor;
and money held by the Property Trustee need not be segregated from other
funds held by it except in relation to the Payment Account maintained by
the Property Trustee pursuant to Section 3.1 and except to the extent
otherwise required by law;
(vi) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrative Trustees or the Sponsor with their
respective duties under this Declaration of Trust, nor shall the Property
Trustee be liable for the default or misconduct of any other Issuer
Trustee, the Administrative Trustees or the Sponsor; and
(vii) no provision of this Declaration of Trust shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if the Property Trustee shall
have reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Declaration of Trust or adequate indemnity against such risk or liability
is not reasonably assured to it.
(e) The Administrative Trustees shall not be responsible for monitoring
the compliance by the Issuer Trustees or the Sponsor with their respective
duties under this Declaration of Trust, nor shall either Administrative Trustee
be liable for the default or misconduct of any other Administrative Trustee, the
Issuer Trustees or the Sponsor.
SECTION 8.2. Certain Notices.
Within ten (10) Business Days after the occurrence of any Event of Default
actually known to a Responsible Officer of the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
10.8, notice of such Event of Default to the Holders and the Administrative
Trustees, unless such Event of Default shall have been cured or waived.
Within ten (10) Business Days after the receipt of notice of the Sponsor's
exercise of its right to defer the payment of interest on the Junior
Subordinated Debentures pursuant to the Indenture, the Property Trustee shall
transmit, in the manner and to the extent provided in
37
Section 10.8, notice of such exercise to the Holders and the Administrative
Trustees, unless such exercise shall have been revoked.
Within one (1) Business Day after the receipt of notice of (a) an "event
of default" (as such term is defined in the 2005 Junior Subordinated Debenture)
or (b) the Existing Junior Subordinated Debentures are accelerated pursuant to
the terms of the 2005 Junior Subordinated Indenture, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.8, notice of
such event of default or acceleration to the Holders and the Administrative
Trustees.
SECTION 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any direction or act of the Sponsor contemplated by this Declaration
of Trust shall be sufficiently evidenced by an Officer's Certificate;
(c) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
re-recording, refiling or registration thereof;
(d) the Property Trustee may consult with counsel of its own choosing
(which counsel may be counsel to the Sponsor or any of its Affiliates, and may
include any of its employees) and the advice of such counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon and in
accordance with such advice; the Property Trustee shall have the right at any
time to seek instructions concerning the administration of this Declaration of
Trust from any court of competent jurisdiction;
(e) the Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Declaration of Trust at the request or
direction of any of the Holders pursuant to this Declaration of Trust, unless
such Holders shall have offered to the Property Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction; provided, that
nothing contained in this Section 8.3(e) shall be taken to relieve the Property
Trustee, upon the occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this Declaration of Trust;
(f) the Property Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or
38
other paper or document, unless requested in writing to do so by one or more
Holders, but the Property Trustee may make such further inquiry or investigation
into such facts or matters as it may see fit;
(g) the Property Trustee may execute any of the trusts or powers hereunder
or perform any of its duties hereunder either directly or by or through its
agents or attorneys, provided that the Property Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(h) whenever in the administration of this Declaration of Trust the
Property Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders (which instructions may
only be given by the Holders of the same proportion in Liquidation Amount of the
Trust Securities as would be entitled to direct the Property Trustee under the
terms of the Trust Securities in respect of such remedy, right or action), (ii)
may refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be fully protected in
acting in accordance with such instructions;
(i) except as otherwise expressly provided by this Declaration of Trust,
the Property Trustee shall not be under any obligation to take any action that
is discretionary under the provisions of this Declaration of Trust. No provision
of this Declaration of Trust shall be deemed to impose any duty or obligation on
any Issuer Trustee or Administrative Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to any Issuer Trustee or
Administrative Trustee shall be construed to be a duty;
(j) if (i) in performing its duties under this Declaration of Trust the
Property Trustee is required to decide between alternative courses of action or
(ii) in construing any of the provisions of this Declaration of Trust the
Property Trustee finds the same ambiguous or inconsistent with any other
provisions contained herein or (iii) the Property Trustee is unsure of the
application of any provision of this Declaration of Trust, then, except as to
any matter as to which the Holders are entitled to vote under the terms of this
Declaration of Trust, the Property Trustee shall deliver a notice to the Sponsor
requesting written instructions of the Sponsor as to the course of action to be
taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Sponsor; provided, however, that if the Property
Trustee does not receive such instructions of the Sponsor within ten Business
Days after it has delivered such notice, or such reasonably shorter period of
time set forth in such notice (which to the extent practicable shall not be less
than two Business Days), it may, but shall be under no duty to, take or refrain
from taking such action not inconsistent with this Declaration of Trust as it
shall deem advisable and in the best interests of the Holders, in which event
the Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(k) whenever in the administration of this Declaration of Trust, the
Property Trustee shall deem it desirable that a matter be established before
undertaking, suffering or omitting any
39
action hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part, request
and conclusively rely upon an Officer's Certificate which, upon receipt of such
request, shall be promptly delivered by the Sponsor or the Administrative
Trustee;
(l) when the Property Trustee incurs expenses or renders services in
connection with a Bankruptcy Event, such expenses (including the fees and
expenses of its counsel) and the compensation for such services are intended to
constitute expenses of administration under any bankruptcy law or law relating
to creditors' rights generally; and
(m) the Property Trustee shall not be charged with knowledge of an Event
of Default unless such Event of Default has occurred as a result of the act or
failure to act of the Property Trustee, a Responsible Officer of the Property
Trustee obtains actual knowledge of such event or the Property Trustee receives
written notice of such event from Holders of at least 25% of the Outstanding
Trust Securities (based upon Liquidation Amount).
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Issuer Trust, and the Issuer Trustees
and the Administrative Trustees do not assume any responsibility for their
correctness. The Issuer Trustees and the Administrative Trustees shall not be
accountable for the use or application by the Sponsor of the proceeds of the
Junior Subordinated Debentures.
SECTION 8.5. May Hold Securities.
The Administrative Trustees, any Issuer Trustee or any other agent of any
Issuer Trustee or the Issuer Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and, subject to Sections 8.8 and
8.13, and except as provided in the definition of the term "Outstanding" in
Article I, may otherwise deal with the Issuer Trust with the same rights it
would have if it were not an Administrative Trustee, Issuer Trustee or such
other agent.
SECTION 8.6. Compensation; Indemnity; Fees.
The Sponsor, as borrower, agrees:
(a) to pay to the Issuer Trustees from time to time such reasonable
compensation for all services rendered by them hereunder as the parties shall
agree from time to time (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(b) to reimburse the Issuer Trustees upon request for all reasonable
expenses, disbursements and advances incurred or made by the Issuer Trustees in
accordance with any provision of this Declaration of Trust (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to their negligence or willful misconduct; and
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(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Issuer Trustee, (ii) each Administrative Trustee, (iii)
any Affiliate of any Issuer Trustee, (iv) any officer, director, shareholder,
employee, representative or agent of any Issuer Trustee, and (v) any employee or
agent of the Issuer Trust (referred to herein as an "Indemnified Person") from
and against any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by such Indemnified Person arising out of or
in connection with the creation, operation or dissolution of the Issuer Trust or
any act or omission performed or omitted by such Indemnified Person in good
faith on behalf of the Issuer Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Declaration of Trust, except that no Indemnified
Person (other than an Administrative Trustee) shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such Indemnified
Person by reason of negligence or willful misconduct with respect to such acts
or omissions, and further provided that no Administrative Trustee shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
such Administrative Trustee by reason of gross negligence or willful misconduct
with respect to such acts or omissions.
The provisions of this Section 8.6 shall survive the termination of this
Declaration of Trust or the earlier resignation or removal of any Issuer
Trustee.
No Issuer Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.6.
The Sponsor, any Administrative Trustee and any Issuer Trustee (subject to
Section 8.8) may engage in or possess an interest in other business ventures of
any nature or description, independently or with others, similar or dissimilar
to the business of the Issuer Trust, and the Issuer Trust and the Holders of
Trust Securities shall have no rights by virtue of this Declaration of Trust in
and to such independent ventures or the income or profits derived therefrom, and
the pursuit of any such venture, even if competitive with the business of the
Issuer Trust, shall not be deemed wrongful or improper. Neither the Sponsor, any
Administrative Trustee, nor any Issuer Trustee shall be obligated to present any
particular investment or other opportunity to the Issuer Trust even if such
opportunity is of a character that, if presented to the Issuer Trust, could be
taken by the Issuer Trust, and the Sponsor, any Administrative Trustee or any
Issuer Trustee shall have the right to take for its own account (individually or
as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Issuer Trustee may engage or be interested
in any financial or other transaction with the Sponsor or any Affiliate of the
Sponsor, or may act as depository for, trustee or agent for, or act on any
committee or body of holders of, securities or other obligations of the Sponsor
or its Affiliates.
In the event that the Property Trustee is also acting as Paying Agent or
Securities Registrar hereunder, the rights and protections afforded to the
Property Trustee pursuant to this Article VIII shall also be afforded to such
Paying Agent or Securities Registrar.
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SECTION 8.7. Corporate Property Trustee Required; Eligibility of Trustees
and Administrative Trustees.
(a) There shall at all times be a Property Trustee hereunder with respect
to the Trust Securities. The Property Trustee shall be a Person that is a
national- or state-chartered bank and eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Property Trustee with respect to the Trust Securities shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder. Each Administrative Trustee shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
persons authorized to bind that entity. An employee, officer or Affiliate of the
Sponsor may serve as an Administrative Trustee.
(c) There shall at all times be a Delaware Trustee. The Delaware Trustee
shall either be (i) a natural person who is at least 21 years of age and a
resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
SECTION 8.8. Conflicting Interests.
(a) If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Declaration
of Trust.
(b) The Guarantee Agreement and the Indenture shall be deemed to be
sufficiently described in this Declaration of Trust for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture Act.
SECTION 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at any
time or times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust Property may
at the time be located, the Property Trustee shall have power to appoint, and
upon the written request of the Property Trustee, the Sponsor and the
Administrative Trustees shall for such purpose join with the Property Trustee in
the execution, delivery, and performance of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by the Property
Trustee either to act as co-trustee, jointly with the Property Trustee, of all
or any part of such Trust Property, or to the extent required by law to act as
separate trustee of any such property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such Person or Persons
in the
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capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section. Any co-trustee or
separate trustee appointed pursuant to this Section shall either be (i) a
natural person who is at least 21 years of age and a resident of the United
States or (ii) a legal entity with its principal place of business in the United
States that shall act through one or more persons authorized to bind such
entity.
Should any written instrument from the Sponsor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Sponsor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed by one or more Administrative
Trustees, and the Preferred Securities shall be authenticated by the manual
signature of the Property Trustee and delivered and all rights, powers, duties,
and obligations hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited or pledged with,
the Property Trustees specified hereunder, shall be exercised, solely by the
Property Trustee and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate trustee,
except to the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Property Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or separate
trustee.
(c) The Property Trustee at any time, by an instrument in writing executed
by it, with the written concurrence of the Sponsor, may accept the resignation
of or remove any co-trustee or separate trustee appointed under this Section,
and, in case a Debenture Default has occurred and is continuing, the Property
Trustee shall have power to accept the resignation of, or remove, any such
co-trustee or separate trustee without the concurrence of the Sponsor. Upon the
written request of the Property Trustee, the Sponsor shall join with the
Property Trustee in the execution, delivery and performance of all instruments
and agreements necessary or proper to effectuate such resignation or removal. A
successor to any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally liable
by reason of any act or omission of the Property Trustee or any other trustee
hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee or any employees or agents of a co-trustee and
separate trustee nor shall it be liable for the supervision of a co-trustee or
separate trustee or employees or agents of a co-trustee and separate trustee.
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(f) Any Act of Holders delivered to the Property Trustee shall be deemed
to have been delivered to each such co-trustee and separate trustee.
SECTION 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Issuer Trustee (the "Relevant Trustee")
and no appointment of a successor Issuer Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Issuer
Trustee in accordance with the applicable requirements of Section 8.11 and, in
the case of the Delaware Trustee, the filing of an amendment to the Certificate
of Trust in accordance with the Delaware Statutory Trust Act.
Subject to the immediately preceding paragraph, a Relevant Trustee may
resign at any time by giving written notice thereof to the Holders. If the
instrument of acceptance by the successor Issuer Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within 60 days after
the giving of such notice of resignation, the Relevant Trustee may petition, at
the expense of the Issuer Trust, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
Unless a Debenture Default shall have occurred and be continuing, the
Property Trustee or the Delaware Trustee may be removed at any time by an Act of
the Holders of a Majority in Liquidation Amount of the Common Securities. The
Property Trustee or the Delaware Trustee may be removed at any time by Act of
the Holders of at least a Majority in Liquidation Amount of the Preferred
Securities, delivered to the Relevant Trustee (in its individual capacity and on
behalf of the Issuer Trust) (i) for cause, or (ii) if a Debenture Default shall
have occurred and be continuing at any time. If the instrument of such removal
shall not have been delivered to the Relevant Trustee within 60 days after such
Act, the Relevant Trustee may petition, at the expense of the Issuer Trust, any
court of competent jurisdiction for appointment of a successor Relevant Trustee.
If any Issuer Trustee shall resign, be removed or become incapable of
continuing as a trustee at a time when no Debenture Default has occurred and is
continuing, the Holders of the Common Securities, by an Act of the Holders of a
Majority in Liquidation Amount of the Common Securities delivered to the
retiring Relevant Trustee, shall promptly appoint a successor Relevant Trustee,
and the retiring Relevant Trustee shall comply with the applicable requirements
of Section 8.11. If any Issuer Trustee shall resign, be removed or become
incapable of continuing as a trustee at a time when a Debenture Default has
occurred and is continuing, the Holders of Preferred Securities, by an Act of
the Holders of a Majority in Liquidation Amount of the Preferred Securities then
Outstanding delivered to the retiring Relevant Trustee shall promptly appoint a
successor Relevant Trustee, and the retiring Relevant Trustee shall comply with
the applicable requirements of Section 8.11. If no successor Relevant Trustee
shall have been so appointed in accordance with this Section 8.10 and accepted
appointment in the manner required by Section 8.11, any Holder, on behalf of
himself and all others similarly situated, or any other Issuer Trustee, may
petition any court of competent jurisdiction for the appointment of a successor
Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of an Issuer Trustee and each appointment of a successor Issuer Trustee
to all Holders in the manner
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provided in Section 10.8 and shall give notice to the Sponsor and to the
Administrative Trustees. Each notice shall include the name of the successor
Relevant Trustee and the address of its Corporate Trust Office if it is the
Property Trustee.
Notwithstanding the foregoing or any other provision of this Declaration
of Trust, in the event any Delaware Trustee who is a natural person dies or
becomes, in the opinion of the Holders of the Common Securities, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by the Property Trustee following the procedures regarding expenses
and charges set forth above (with the successor in each case being a Person who
satisfies the eligibility requirements for Delaware Trustee set forth in Section
8.7).
SECTION 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant Trustee, the
retiring Relevant Trustee (if requested by the Sponsor) and each such successor
Relevant Trustee with respect to the Trust Securities shall execute, acknowledge
and deliver an amendment hereto wherein each successor Relevant Trustee shall
accept such appointment and which (a) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers, trusts and duties of the
retiring Relevant Trustee with respect to the Trust Securities and the Issuer
Trust, and (b) shall add to or change any of the provisions of this Declaration
of Trust as shall be necessary to provide for or facilitate the administration
of the Issuer Trust by more than one Relevant Trustee and upon the execution and
delivery of such amendment the resignation or removal of the retiring Relevant
Trustee shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee; but, on request of the Issuer Trust or any successor Relevant
Trustee such retiring Relevant Trustee shall, upon payment of its charges, duly
assign, transfer and deliver to such successor Relevant Trustee all Trust
Property, all proceeds thereof and money held by such retiring Relevant Trustee
hereunder with respect to the Trust Securities and the Issuer Trust.
Upon request of any such successor Relevant Trustee, the Issuer Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may
be.
No successor Relevant Trustee shall accept its appointment unless at the
time of such acceptance such successor Relevant Trustee shall be qualified and
eligible under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which an Issuer Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Issuer Trustee shall be a party, or
any Person succeeding to all or substantially all the corporate trust business
of such Issuer Trustee, shall be the successor of such Issuer Trustee hereunder,
provided that such Person shall be otherwise qualified and eligible under this
Article,
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without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
SECTION 8.13. Preferential Collection of Claims Against Sponsor or Issuer
Trust.
If and when the Property Trustee shall be or become a creditor of the
Sponsor (or any other obligor upon the Trust Securities), the Property Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Sponsor (or any such other obligor) as is
required by the Trust Indenture Act.
SECTION 8.14. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Issuer Trust or any other obligor upon the Trust
Securities or the property of the Issuer Trust or of such other obligor, the
Property Trustee (irrespective of whether any Distributions on the Trust
Securities shall then be due and payable and irrespective of whether the
Property Trustee shall have made any demand on the Issuer Trust for the payment
of any past due Distributions) shall be entitled and empowered, to the fullest
extent permitted by law, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Trust Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Property Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Property Trustee and, in the event the Property Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Property Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel, and
any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or compensation affecting the Trust
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 8.15. Reports by Property Trustee.
(a) Not later than May 15 of each year commencing with May 15, 2007, the
Property Trustee shall provide to the Holders of the Trust Securities such
reports as are required by Section 313 of the Trust Indenture Act, if any, in
the form, in the manner and at the times
46
provided by Section 313 of the Trust Indenture Act. The Property Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Property Trustee with the Sponsor.
SECTION 8.16. Reports to the Property Trustee.
Each of the Sponsor and the Administrative Trustees on behalf of the
Issuer Trust shall provide to the Property Trustee, the Commission and the
Holders of the Trust Securities, as applicable, such documents, reports and
information as required by Section 314(a)(1) - (3) (if any) of the Trust
Indenture Act and the compliance certificates required by Section 314(a)(4) and
(c) of the Trust Indenture Act (provided that any certificate to be provided
pursuant to Section 314(a)(4) of the Trust Indenture Act shall be provided
within 120 days of the end of each fiscal year of the Issuer Trust).
SECTION 8.17. Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Administrative Trustees on behalf of the
Issuer Trust shall provide to the Property Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Declaration of Trust
which relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given pursuant to
Section 314(c) shall comply with Section 314(e) of the Trust Indenture Act.
SECTION 8.18. Number of Issuer Trustees.
(a) The number of Issuer Trustees shall be two. The Property Trustee and
the Delaware Trustee may be the same Person, in which case the number of Issuer
Trustees may be one.
(b) If an Issuer Trustee ceases to hold office for any reason, a vacancy
shall occur. The vacancy shall be filled with an Issuer Trustee appointed in
accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy, dissolution,
termination, incompetence or incapacity to perform the duties of an Issuer
Trustee shall not operate to dissolve, terminate or annul the Issuer Trust or
terminate this Declaration of Trust.
SECTION 8.19. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
2.7(a) or making any governmental filing; and
(b) The Administrative Trustees shall have power to delegate from time to
time to such of their number the doing of such things and the execution of such
instruments either in the name of the Issuer Trust or the names of the
Administrative Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of this Declaration of Trust.
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SECTION 8.20. Appointment of Administrative Trustees.
(a) The number of Administrative Trustees shall be such number as shall be
fixed from time to time by the Holders of a Majority in Liquidation Amount of
the Common Securities. The Administrative Trustees shall be appointed by the
Holders of a Majority in Liquidation Amount of the Common Securities and may be
removed by the Holders of a Majority in Liquidation Amount of the Common
Securities or may resign at any time. Upon any resignation or removal, the
Sponsor shall appoint a successor Administrative Trustee. Each Administrative
Trustee shall execute this Declaration of Trust thereby agreeing to comply with,
and be legally bound by, all of the terms, conditions and provisions of this
Declaration of Trust. If at any time there is no Administrative Trustee, the
Property Trustee or any Holder who has been a Holder of Trust Securities for at
least six months may petition any court of competent jurisdiction for the
appointment of one or more Administrative Trustees.
(b) Whenever a vacancy in the number of Administrative Trustees shall
occur, until such vacancy is filled by the appointment of an Administrative
Trustee in accordance with this Section 8.20, the Administrative Trustees in
office, regardless of their number (and notwithstanding any other provision of
this Declaration of Trust), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Declaration of Trust.
(c) Notwithstanding the foregoing, or any other provision of this
Declaration of Trust, in the event any Administrative Trustee who is a natural
person dies or becomes, in the opinion of the Holders of a Majority in
Liquidation Amount of the Common Securities, incompetent, or incapacitated, the
vacancy created by such death, incompetence or incapacity may be filled by the
remaining Administrative Trustees, if there were at least two of them prior to
such vacancy, and by the Sponsor, if there were not two such Administrative
Trustees immediately prior to such vacancy (with the successor in each case
being a Person who satisfies the eligibility requirement for Administrative
Trustees set forth in Section 8.7).
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Issuer Trust shall automatically dissolve on
June ___, 2041 (the "Expiration Date"), and thereafter the Trust Property shall
be distributed in accordance with Section 9.4.
SECTION 9.2. Early Termination.
The first to occur of any of the following events is an "Early Termination
Event" and the occurrence of which shall cause the dissolution of the Issuer
Trust:
(a) the occurrence of the appointment of a receiver or other similar
official in any liquidation, insolvency or similar proceeding with respect to
the Sponsor or all or substantially all of its property, or a court or other
governmental agency shall enter a decree or order and such
48
decree or order shall remain unstayed and undischarged for a period of 60 days,
unless the Sponsor shall transfer the Common Securities as provided by Section
5.11, in which case this provision shall refer instead to any such successor
Holder of the Common Securities;
(b) the written direction to the Property Trustee from the Holder of the
Common Securities at any time to dissolve the Issuer Trust and to distribute a
Like Amount of the Junior Subordinated Debentures to Holders in exchange for the
Preferred Securities (which direction, subject to Section 9.4(a) and to
obtaining any required regulatory approval, is optional and wholly within the
discretion of the Holders of the Common Securities);
(c) the redemption of all of the Preferred Securities in connection with
the redemption of all the Junior Subordinated Debentures or the maturity of the
Junior Subordinated Debentures; and
(d) the entry of an order for dissolution of the Issuer Trust by a court
of competent jurisdiction.
SECTION 9.3. Termination.
As soon as is practicable after the occurrence of an event referred to in
Section 9.1 or 9.2, and upon the completion of the winding up and liquidation of
the Issuer Trust, the Administrative Trustees or the Issuer Trustees (each of
whom is hereby authorized to take such action) shall file a certificate of
cancellation with the Secretary of State of the State of Delaware terminating
the Trust and, upon such filing, the respective obligations and responsibilities
of the Issuer Trustees, the Administrative Trustees and the Issuer Trust shall
terminate.
SECTION 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or (d) of
Section 9.2 occurs or upon the Expiration Date, the Issuer Trust shall be wound
up and liquidated by the Property Trustee as expeditiously as the Property
Trustee determines to be possible by distributing, after paying or making
reasonable provision to pay all claims and obligations of the Issuer Trust in
accordance with Section 3808(e) of the Delaware Statutory Trust Act, to each
Holder an amount equal to the Liquidation Amount per Trust Security owned by
such Holder plus accumulated and unpaid Distributions to but excluding the date
of payment, which may be paid in a Like Amount of Junior Subordinated
Debentures, subject to Section 9.4(d). Notice of liquidation shall be given by
the Property Trustee by first-class mail, postage prepaid, mailed not later than
15 nor more than 45 days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities Register. All
notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that, from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Junior Subordinated Debentures; and
49
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for Junior
Subordinated Debentures, or if Section 9.4(d) applies, receive a
Liquidation Distribution, as the Administrative Trustees or the Property
Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Issuer Trust and distribution of the Junior Subordinated
Debentures to Holders, the Property Trustee shall establish a record date for
such distribution (which shall be not more than 30 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Junior Subordinated Debentures in
exchange for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation
Date, (i) the Preferred Securities and Common Securities will no longer be
deemed to be Outstanding, (ii) the Clearing Agency for the Preferred Securities
or its nominee, as the registered holder of the Global Preferred Securities
Certificate, shall receive a registered global certificate or certificates
representing the Junior Subordinated Debentures to be delivered upon such
distribution with respect to Preferred Securities held by the Clearing Agency or
its nominee, and, (iii) any Preferred Securities Certificates not held by the
Clearing Agency for the Preferred Securities or its nominee as specified in
clause (ii) above will be deemed to represent Junior Subordinated Debentures
having a principal amount equal to the stated Liquidation Amount of the
Preferred Securities represented thereby and bearing accrued and unpaid interest
in an amount equal to the accumulated and unpaid Distributions on such Preferred
Securities until such certificates are presented to the Securities Registrar for
transfer or reissuance.
(d) If, notwithstanding the other provisions of this Section 9.4, whether
because of an order for dissolution entered by a court of competent jurisdiction
or otherwise, distribution of the Junior Subordinated Debentures is not
practical, or if any Early Termination Event specified in clause (c) of Section
9.2 occurs, the Issuer Trust shall be dissolved and wound up and the Trust
Property shall be liquidated by the Property Trustee in such manner as the
Property Trustee determines. In such event, on the date of the dissolution of
the Issuer Trust, unless the Trust Securities have been redeemed or are to be
redeemed on such date pursuant to Article IV, Holders will be entitled to
receive out of the assets of the Issuer Trust available for distribution to
Holders, after paying or making reasonable provision to pay all claims and
obligations of the Issuer Trust in accordance with Section 3808(e) of the
Delaware Statutory Trust Act, an amount in cash equal to the aggregate of
Liquidation Amount per Trust Security plus accumulated and unpaid Distributions
thereon to but excluding the date of payment (such amount being the "Liquidation
Distribution"). If, upon any such dissolution, the Liquidation Distribution can
be paid only in part because the Issuer Trust has insufficient assets available
to pay in full the aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Issuer Trust on the Trust
Securities shall be paid on a pro rata basis (based upon Liquidation Amounts).
The Holders of the Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution pro rata (determined as aforesaid) with
Holders of Preferred Securities, except that, if a Debenture Default has
occurred and is continuing, the Preferred Securities shall have a priority over
the Common Securities as provided in Section 4.3.
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SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of the
Issuer Trust.
The Issuer Trust may not merge with or into, consolidate, amalgamate, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, any entity, except pursuant to this Section 9.5
or Section 9.4. At the request of the Holders of the Common Securities, and with
the consent of the Holders of at least a Majority in Liquidation Amount of the
Preferred Securities, the Issuer Trust may merge with or into, consolidate,
amalgamate, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to a trust organized as such under the laws
of any State; provided, however, that (i) such successor entity either (a)
expressly assumes all of the obligations of the Issuer Trust with respect to the
Preferred Securities or (b) substitutes for the Preferred Securities other
securities having substantially the same terms as the Preferred Securities (the
"Successor Securities") so long as the Successor Securities have the same
priority as the Preferred Securities with respect to distributions and payments
upon liquidation, redemption and otherwise, (ii) a trustee of such successor
entity possessing the same powers and duties as the Property Trustee is
appointed to hold the Junior Subordinated Debentures, (iii) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
cause the Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization in the
event the Preferred Securities are then rated, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of the Preferred
Securities (including any Successor Securities) in any material respect, (v)
such successor entity has a purpose substantially identical to that of the
Issuer Trust, (vi) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Issuer Trustee has received an
Opinion of Counsel from independent counsel experienced in such matters to the
effect that (a) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders of the Preferred Securities (including any
Successor Securities) in any material respect, and (b) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, neither
the Issuer Trust nor such successor entity will be required to register as an
"investment company" under the Investment Company Act and (vii) the Sponsor or
any permitted transferee to whom it has transferred the Common Securities
hereunder own all of the common securities of such successor entity and
guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee Agreement.
Notwithstanding the foregoing, the Issuer Trust shall not, except with the
consent of Holders of 100% in Liquidation Amount of the Preferred Securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the Issuer Trust or the successor
entity to be taxable as a corporation, a partnership or any other arrangement
other than as a grantor trust for United States Federal income tax purposes.
51
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death, incapacity, dissolution,
termination or bankruptcy of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Declaration
of Trust, nor dissolve or terminate the Issuer Trust, nor entitle the legal
representatives, successors or heirs of such Person or any Holder for such
Person, to claim an accounting, take any action or bring any proceeding in any
court for a partition or winding-up of the arrangements contemplated hereby, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them. Any merger or similar agreement authorized in accordance with
this Declaration of Trust shall be executed by one or more of the Administrative
Trustees on behalf of the Issuer Trust.
SECTION 10.2. Amendment.
(a) This Declaration of Trust may be amended in accordance with Section
8.11 hereof. This Declaration of Trust may be amended from time to time by the
Property Trustee and the Holders of a Majority in Liquidation Amount of the
Common Securities, without the consent of any Holder of the Preferred
Securities, (i) to cure any ambiguity, correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this
Declaration of Trust, provided, however, that such amendment shall not adversely
affect in any material respect the interests of any Holder or (ii) to modify,
eliminate or add to any provisions of this Declaration of Trust to such extent
as shall be necessary to ensure that the Issuer Trust will not be taxable as a
corporation, a partnership or any other arrangement other than as a grantor
trust for United States Federal income tax purposes at any time that any Trust
Securities are Outstanding or to ensure that the Issuer Trust will not be
required to register as an investment company under the Investment Company Act.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Declaration of Trust may be amended by the Property Trustee and the Holders of a
Majority in Liquidation Amount of the Common Securities with (i) the consent of
Holders of at least a Majority in Liquidation Amount of the Preferred Securities
and (ii) receipt by the Issuer Trustees of an Opinion of Counsel to the effect
that such amendment or the exercise of any power granted to the Issuer Trustees
in accordance with such amendment will not cause the Issuer Trust to be taxable
as a corporation, a partnership or any other arrangement other than as a grantor
trust for United States Federal income tax purposes or affect the Issuer Trust's
exemption from status of an "investment company" under the Investment Company
Act.
(c) In addition to and notwithstanding any other provision in this
Declaration of Trust, without the consent of each affected Holder, this
Declaration of Trust may not be amended to (i) change the amount or timing of
any Distribution on the Trust Securities or otherwise adversely affect the
amount of any Distribution required to be made in respect of the Trust
52
Securities as of a specified date or (ii) restrict the right of a Holder to
institute suit for the enforcement of any such payment on or after such date.
(d) Notwithstanding any other provisions of this Declaration of Trust, no
Issuer Trustee shall enter into or consent to any amendment to this Declaration
of Trust which would cause the Issuer Trust to fail or cease to qualify for the
exemption from status as an "investment company" under the Investment Company
Act or to fail or cease to qualify as a grantor trust for United States Federal
income tax purposes.
(e) Notwithstanding anything in this Declaration of Trust to the contrary,
without the consent of the Sponsor and the Administrative Trustees, this
Declaration of Trust may not be amended in a manner which imposes any additional
obligation on the Sponsor or the Administrative Trustees.
(f) In the event that any amendment to this Declaration of Trust is made,
the Administrative Trustees or the Property Trustee shall promptly provide to
the Sponsor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Declaration of Trust which affects
its own rights, duties or immunities under this Declaration of Trust. The
Property Trustee shall be entitled to receive an Opinion of Counsel and an
Officer's Certificate stating that any amendment to this Declaration of Trust is
in compliance with this Declaration of Trust.
(h) Any amendments to this Declaration of Trust, pursuant to Section
10.2(a), shall become effective when notice of such amendment is given to the
Holders of the Trust Securities.
(i) Notwithstanding any other provision of this Declaration of Trust, no
amendment to this Declaration of Trust may be made if, as a result of such
amendment, it would cause the Issuer Trust to be taxable as a corporation, a
partnership or any other arrangement other than as a grantor trust for United
States Federal income tax purposes.
SECTION 10.3. Separability.
In case any provision in this Declaration of Trust or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 10.4. Governing Law.
THIS DECLARATION OF TRUST AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
HOLDERS, THE ISSUER TRUST, THE SPONSOR, THE ISSUER TRUSTEES AND THE
ADMINISTRATIVE TRUSTEES SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED
BY SUCH LAWS WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS OF THE STATE
OF DELAWARE OR ANY OTHER JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE
LAW OF ANY JURISDICTION OTHER THAN THE STATE OF
53
DELAWARE; PROVIDED, HOWEVER, THAT THERE SHALL NOT BE APPLICABLE TO THE HOLDERS,
THE ISSUER TRUST, THE SPONSOR, THE ISSUER TRUSTEES, THE ADMINISTRATIVE TRUSTEES
OR THIS DECLARATION OF TRUST ANY PROVISION OF THE LAWS (STATUTORY OR COMMON) OF
THE STATE OF DELAWARE PERTAINING TO TRUSTS THAT RELATE TO OR REGULATE, IN A
MANNER INCONSISTENT WITH THE TERMS HEREOF (A) THE FILING WITH ANY COURT OR
GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND
CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST BONDS FOR TRUSTEES, OFFICERS,
AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY FOR OBTAINING COURT OR OTHER
GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION OF REAL
OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS,
AGENTS OR EMPLOYEES OF A TRUST, (E) THE ALLOCATION OF RECEIPTS AND EXPENDITURES
TO INCOME OR PRINCIPAL, (F) RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE
NATURE, AMOUNT OR CONCENTRATION OF TRUST INVESTMENTS OR REQUIREMENTS RELATING TO
THE TITLING, STORAGE OR OTHER MANNER OF HOLDING OR INVESTING TRUST ASSETS OR (G)
THE ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR
LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE
LIMITATIONS OR LIABILITIES OR AUTHORITIES AND POWERS OF THE ISSUER TRUSTEES OR
THE ADMINISTRATIVE TRUSTEES AS SET FORTH OR REFERENCED IN THIS DECLARATION OF
TRUST. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THE
ISSUER TRUST.
SECTION 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date but
may be made on the next succeeding day that is a Business Day, with the same
force and effect as though made on the date fixed for such payment, and no
Distributions shall accumulate on such unpaid amount for the period after such
date.
SECTION 10.6. Successors.
This Declaration of Trust shall be binding upon and shall inure to the
benefit of any successor to the Sponsor, the Issuer Trust, the Administrative
Trustees and any Issuer Trustee, including any successor by operation of law.
Except in connection with a consolidation, merger or sale involving the Sponsor
that is permitted under Article IX of the Indenture and pursuant to which the
assignee agrees in writing to perform the Sponsor's obligations hereunder, the
Sponsor shall not assign its obligations hereunder.
SECTION 10.7. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Declaration of Trust.
54
SECTION 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication that by any provision of
this Declaration of Trust is required or permitted to be given or served to or
upon any Holder or the Sponsor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a Holder
of Preferred Securities, to such Holder as such Holder's name and address may
appear on the Securities Register; and (b) in the case of the Holder of Common
Securities or the Sponsor, to Great Wolf Resorts, Inc., 122 West Washington
Avenue, Madison, Wisconsin 53703, Attention: General Counsel and Corporate
Secretary, facsimile no.: (608) 661-4701 or to such other address as may be
specified in a written notice by the Sponsor to the Property Trustee. Such
notice, demand or other communication to or upon a Holder shall be deemed to
have been sufficiently given or made, for all purposes, upon hand delivery,
mailing or transmission. Such notice, demand or other communication to or upon
the Sponsor shall be deemed to have been sufficiently given or made only upon
actual receipt of the writing by the Sponsor.
Any notice, demand or other communication which by any provision of this
Declaration of Trust is required or permitted to be given or served to or upon
the Property Trustee, the Delaware Trustee, the Administrative Trustees, or the
Issuer Trust shall be given in writing addressed (until another address is
published by the Issuer Trust) as follows: (a) with respect to the Property
Trustee to Wilmington Trust Company, Rodney Square North, 1100 North Market
Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust
Administration; (b) with respect to the Delaware Trustee to Wilmington Trust
Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware
19890-0001, Attention: Corporate Trust Administration; and (c) with respect to
the Administrative Trustees, to them at the address above for notices to the
Sponsor, marked "Attention: Office of the Secretary." Such notice, demand or
other communication to or upon the Issuer Trust, the Property Trustee or the
Administrative Trustees shall be deemed to have been sufficiently given or made
only upon actual receipt of the writing by the Issuer Trust, the Property
Trustee, or such Administrative Trustee.
SECTION 10.9. Agreement Not to Petition.
Each of the Issuer Trustees, the Administrative Trustees and the Sponsor
agree for the benefit of the Holders that, until at least one year and one day
after the Issuer Trust has been terminated in accordance with Article IX, they
shall not file, or join in the filing of, a petition against the Issuer Trust
under any bankruptcy, insolvency, reorganization or other similar law
(including, without limitation, the United States Bankruptcy Code)
(collectively, "Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Issuer Trust under any Bankruptcy Law. In the event the
Sponsor takes action in violation of this Section 10.9, the Property Trustee
agrees, for the benefit of Holders, that at the expense of the Sponsor, it shall
file an answer with the bankruptcy court or otherwise properly contest the
filing of such petition by the Sponsor against the Issuer Trust or the
commencement of such action and raise the defense that the Sponsor has agreed in
writing not to take such action and should be estopped and precluded therefrom
and such other defenses, if any, as counsel for the Issuer Trustee or the Issuer
Trust may assert. If any Issuer Trustee or Administrative Trustee takes action
in violation of this Section 10.9, the Sponsor agrees, for the benefit of the
Holders, that at the expense of the Sponsor, it shall file an answer with the
bankruptcy court or otherwise properly contest the filing
55
of such petition by such Person against the Sponsor or the commencement of such
action and raise the defense that such Person has agreed in writing not to take
such action and should be estopped and precluded therefrom and such other
defenses, if any, as counsel for the Issuer Trustee or the Issuer Trust may
assert. The provisions of this Section 10.9 shall survive the termination of
this Declaration of Trust.
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) Trust Indenture Act; Application. (i) This Declaration of Trust is
subject to the provisions of the Trust Indenture Act that are required to be a
part of this Declaration of Trust and shall, to the extent applicable, be
governed by such provisions; (ii) if and to the extent that any provision of
this Declaration of Trust limits, qualifies or conflicts with the duties imposed
by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control; (iii) for purposes of this Declaration of Trust, the
Property Trustee, to the extent permitted by applicable law and/or the rules and
regulations of the Commission, shall be the only Issuer Trustee which is a
trustee for the purposes of the Trust Indenture Act; and (iv) the application of
the Trust Indenture Act to this Declaration of Trust shall not affect the nature
of the Preferred Securities and the Common Securities as equity securities
representing undivided beneficial interests in the assets of the Issuer Trust.
(b) Lists of Holders of Preferred Securities. (i) Each of the Sponsor and
the Administrative Trustees on behalf of the Trust shall provide the Property
Trustee with such information as is required under Section 312(a) of the Trust
Indenture Act at the times and in the manner provided in Section 312(a) and (ii)
the Property Trustee shall comply with its obligations under Sections 310(b),
311 and 312(b) of the Trust Indenture Act.
(c) Disclosure of Information. The disclosure of information as to the
names and addresses of the Holders of Trust Securities in accordance with
Section 312 of the Trust Indenture Act, regardless of the source from which such
information was derived, shall not be deemed to be a violation of any existing
law or any law hereafter enacted which does not specifically refer to Section
312 of the Trust Indenture Act, nor shall the Property Trustee be held
accountable by reason of mailing any material pursuant to a request made under
Section 312(b) of the Trust Indenture Act.
SECTION 10.11. Acceptance of Terms of Declaration of Trust, Guarantee and
Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY
OF ALL THE TERMS AND PROVISIONS OF THIS DECLARATION OF TRUST, THE GUARANTEE
AGREEMENT AND THE INDENTURE, AND THE AGREEMENT TO THE SUBORDINATION PROVISIONS
AND OTHER TERMS OF THE GUARANTEE AGREEMENT AND THE INDENTURE, AND SHALL
CONSTITUTE THE AGREEMENT OF THE ISSUER TRUST, SUCH HOLDER AND SUCH OTHERS THAT
THE TERMS AND PROVISIONS OF
56
THIS DECLARATION OF TRUST SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN
THE ISSUER TRUST AND SUCH HOLDER AND SUCH OTHERS.
SECTION 10.12. Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
57
GREAT WOLF RESORTS, INC.,
as Sponsor
By:_____________________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Property Trustee
By:_____________________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By:_____________________________________
Name:
Title:
________________________________________
Name: J. Michael Schroeder
Title: Administrative Trustee
________________________________________
Name: James A. Calder
Title: Administrative Trustee
[Amended and Restated Declaration of Trust]
Exhibit A
CERTIFICATE OF TRUST
[Attached hereto]
A-1
Exhibit B
FORM OF CERTIFICATE DEPOSITARY AGREEMENT
B-1
Exhibit C
FORM OF COMMON SECURITIES CERTIFICATE
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE SPONSOR OR AN AFFILIATE OF
THE SPONSOR IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE
DECLARATION OF TRUST.
Certificate Number: C-
Number of Common Securities:
Certificate Evidencing Common Securities
of
GW Capital Trust II
____% Common Securities
(liquidation amount $25 per Common Security)
GW Capital Trust II, a statutory trust created under the laws of the State
of Delaware (the "Issuer Trust"), hereby certifies that Great Wolf Resorts, Inc.
(the "Holder") is the registered owner of ( ) common securities of the Issuer
Trust representing undivided beneficial interests in assets of the Issuer Trust
and designated the ____% Common Securities (liquidation amount $25 per Common
Security) (the "Common Securities"). Except in accordance with Section 5.11 of
the Declaration of Trust (as defined below), the Common Securities are not
transferable and, to the fullest extent permitted by law, any attempted transfer
hereof other than in accordance therewith shall be void. The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Declaration of Trust of
the Issuer Trust, dated as of June ___, 2006, as the same may be amended from
time to time (the "Declaration of Trust"), among Great Wolf Resorts, Inc., as
Sponsor, Wilmington Trust Company, as Property Trustee, Wilmington Trust
Company, as Delaware Trustee, two individuals selected by the holders of the
Common Securities to act as administrative trustees with respect to the Issuer
Trust (the "Administrative Trustees"), and the holders of Trust Securities,
including the designation of the terms of the Common Securities as set forth
therein. The Holder is entitled to the benefits of a Common Securities Guarantee
Agreement, as amended from time to time, entered into by Great Wolf Resorts,
Inc., as Guarantor, dated as of June ___, 2006 (the "Guarantee Agreement"), to
the extent provided therein. The Issuer Trust will furnish a copy of the
Declaration of Trust and the Guarantee Agreement to the Holder without charge
upon written request to the Issuer Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by the Declaration
of Trust and is entitled to the benefits thereunder.
C-1
The Issuer Trust, and by acceptance of a beneficial interest in the Common
Securities, each beneficial owner of the Common Securities will be deemed to
have agreed to treat, for United States Federal income tax purposes, the Junior
Subordinated Debentures as indebtedness of the Sponsor and to treat the Common
Securities as evidence of a beneficial ownership interest in the Junior
Subordinated Debentures through a grantor trust.
Terms used but not defined herein have the meanings set forth in the
Declaration of Trust.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Issuer Trust
has executed this certificate this day of , 200 .
GW CAPITAL TRUST II
By:_____________________________________
Name:
Title: Administrative Trustee
C-2
EXHIBIT D
FORM OF PREFERRED SECURITIES CERTIFICATE
[THIS PREFERRED SECURITIES CERTIFICATE IS A GLOBAL PREFERRED SECURITIES
CERTIFICATE WITHIN THE MEANING OF THE DECLARATION OF TRUST HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY.
THIS PREFERRED SECURITIES CERTIFICATE IS EXCHANGEABLE FOR PREFERRED SECURITIES
CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE DECLARATION OF TRUST
AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
DECLARATION OF TRUST.]
THE ISSUER TRUST, AND BY ACCEPTANCE OF A BENEFICIAL INTEREST IN THE PREFERRED
SECURITIES, EACH BENEFICIAL OWNER OF THE PREFERRED SECURITIES WILL BE DEEMED TO
HAVE AGREED TO TREAT, FOR UNITED STATES FEDERAL INCOME TAX PURPOSES, THE JUNIOR
SUBORDINATED DEBENTURES AS INDEBTEDNESS OF THE SPONSOR AND TO TREAT THE
PREFERRED SECURITIES AS EVIDENCE OF A BENEFICIAL OWNERSHIP INTEREST IN THE
JUNIOR SUBORDINATED DEBENTURES THROUGH A GRANTOR TRUST.
[UNLESS THIS PREFERRED SECURITIES CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO GW CAPITAL TRUST II OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY PREFERRED SECURITIES CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF SUCH NOMINEE AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO SUCH ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO A PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
HAS AN INTEREST HEREIN.]
NO EMPLOYEE BENEFIT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OTHER PLAN OR INDIVIDUAL RETIREMENT
ACCOUNT SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE"), OR EMPLOYEE BENEFIT PLAN THAT IS A GOVERNMENTAL PLAN, AS DEFINED
IN SECTION 3(32) OF ERISA, A CHURCH PLAN, AS DEFINED IN SECTION 3(33) OF ERISA,
OR A NON-U.S. PLAN, AS DESCRIBED IN SECTION 4(B)(4) OF ERISA, SUBJECT TO SIMILAR
RULES UNDER OTHER APPLICABLE LAWS OR DOCUMENTS ("SIMILAR LAW") (EACH, A "PLAN"),
NO ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S
INVESTMENT IN THE ENTITY (A "PLAN ASSET ENTITY"), AND NO PERSON INVESTING "PLAN
ASSETS" OF ANY PLAN, MAY ACQUIRE OR HOLD THIS PREFERRED SECURITIES CERTIFICATE
OR ANY
D-1
INTEREST HEREIN, UNLESS SUCH PURCHASE AND HOLDING IS COVERED BY THE EXEMPTIVE
RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS
EXEMPTION ("PTCE") 96 23, 95 60, 91 38, 90 1 OR 84 14 OR SIMILAR LAW, OR THERE
IS NO BASIS ON WHICH THE PURCHASE AND HOLDING COULD CONSTITUTE A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR
LAW. ANY PURCHASER OR HOLDER OF THE PREFERRED SECURITIES CERTIFICATE OR ANY
INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING
HEREOF THAT EITHER (A) THE PURCHASER AND HOLDER ARE NOT A PLAN OR A PLAN ASSET
ENTITY AND ARE NOT PURCHASING SUCH SECURITIES ON BEHALF OF OR WITH "PLAN ASSETS"
OF ANY PLAN, OR (B) THE PURCHASE AND HOLDING OF THE PREFERRED SECURITIES ARE
COVERED BY THE EXEMPTIVE RELIEF PROVIDED BY PTCE 96 23, 95 60, 91 38, 90 1 OR 84
14 OR SIMILAR LAW, OR THERE IS NO BASIS ON WHICH THE PURCHASE AND HOLDING COULD
CONSTITUTE A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA, SECTION 4975 OF
THE CODE OR SIMILAR LAW.
D-2
CERTIFICATE NUMBER: C- CUSIP NO. ___________________
Preferred Securities
CERTIFICATE EVIDENCING PREFERRED SECURITIES OF
GW CAPITAL TRUST II
____% PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
GW Capital Trust II, a statutory trust created under the laws of the State
of Delaware (the "Issuer Trust"), hereby certifies that ________________ (the
"Holder") is the registered owner of $ in aggregate liquidation amount of
capital securities of the Issuer Trust representing a preferred undivided
beneficial interest in the assets of the Issuer Trust and designated the GW
Capital Trust II ____% Preferred Securities (liquidation amount $25 per
Preferred Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Issuer Trust, in person or by a
duly authorized attorney, upon surrender of this certificate duly endorsed and
in proper form for transfer as provided in Section 5.5 of the Declaration of
Trust (as defined below). The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities are set
forth in, and this certificate and the Preferred Securities represented hereby
are issued and shall in all respects be subject to the terms and provisions of,
the Amended and Restated Declaration of Trust of the Issuer Trust, dated as of
June ___, 2006, as the same may be amended from time to time (the "Declaration
of Trust"), among Great Wolf Resorts, Inc., as Sponsor, Wilmington Trust
Company, as Property Trustee, Wilmington Trust Company, as Delaware Trustee, two
individuals selected by the holders of the Common Securities to act as
administrative trustees with respect to the Issuer Trust (the "Administrative
Trustees") and the holders of Trust Securities, including the designation of the
terms of the Preferred Securities as set forth therein. The Holder is entitled
to the benefits of the Preferred Securities Guarantee Agreement entered into by
Great Wolf Resorts, Inc., as Guarantor, and Wilmington Trust Company, as
Guarantee Trustee, dated as of June ___, 2006, as the same may be amended from
time to time (the "Guarantee Agreement"), to the extent provided therein. The
Issuer Trust will furnish a copy of the Declaration of Trust and the Guarantee
Agreement to the Holder without charge upon written request to the Issuer Trust
at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Declaration
of Trust and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth in the
Declaration of Trust.
D-3
IN WITNESS WHEREOF, one of the Administrative Trustees of the Issuer Trust
has executed this certificate this day of , 200 .
GW CAPITAL TRUST II
By:
Name:
Title: Administrative Trustee
AUTHENTICATED, COUNTERSIGNED AND
REGISTERED:
Wilmington Trust Company,
not in its individual capacity,
but solely as Property Trustee
By:
Authorized Signatory
Dated: _______________________
D-4
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints__________________________ agent to transfer this
Preferred Securities Certificate on the books of the Issuer Trust. The agent may
substitute another to act for him or her.
Date:__________________ Signature:________________________________________
(Sign exactly as your name appears on
the other side of this Preferred
Securities Certificate)
Signature Guarantee:_________________________
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Property Trustee, which requirements include
membership or participation in the Security Transfer Agent medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Property Trustee in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
D-5
Exhibit E
FORM OF EXPENSE AGREEMENT
AGREEMENT AS TO EXPENSES AND LIABILITIES, dated as of June ___, 2006 (this
"Agreement"), between Great Wolf Resorts, Inc., a Delaware corporation, as
Sponsor (the "Sponsor"), and GW Capital Trust II, a Delaware statutory trust
(the "Issuer Trust").
WHEREAS, the Issuer Trust intends to issue its Common Securities (the
"Common Securities") to and acquire ____% Junior Subordianted Debentures (the
"Debentures") from the Sponsor, and to issue and sell ____% Preferred
Securities, (the "Preferred Securities") with such powers, preferences and
special rights and restrictions as are set forth in the Amended and Restated
Declaration of Trust of the Issuer Trust, dated as of June ___, 2006, among
Great Wolf Resorts, Inc., as Sponsor, Wilmington Trust Company, as Property
Trustee, Wilmington Trust Company, as Delaware Trustee, two individuals selected
by the holders of the Common Securities to act as administrative trustees with
respect to the Issuer Trust (the "Administrative Trustees"), and the holders of
Trust Securities, as the same may be amended from time to time (the "Declaration
of Trust");
WHEREAS, the Sponsor will own all of the Common Securities of the Trust;
WHEREAS, capitalized terms used but not defined herein have the meanings
set forth in the Declaration of Trust;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I.
Section 1.01. Guarantee by the Sponsor. Subject to the terms and
conditions hereof, the Sponsor hereby irrevocably and unconditionally guarantees
to each person or entity to whom the Issuer Trust is now or hereafter becomes
indebted or liable (the "Beneficiaries") the full payment, when and as due, of
any and all Obligations (as hereinafter defined) to such Beneficiaries. As used
herein, "Obligations" means any costs, expenses or liabilities of the Issuer
Trust, other than obligations of the Issuer Trust to pay to holders of any Trust
Securities the amounts due such holders pursuant to the terms of the Trust
Securities. This Agreement is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
Section 1.02. Subordination of Guarantee. The guarantee and other
liabilities and obligations of the Sponsor under this Declaration of Trust shall
constitute unsecured obligations of the Sponsor and shall rank subordinate and
junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) of the Sponsor to the extent and in the manner set forth in the
Indenture with respect to the Debentures, and the provisions of Article XIII of
the Indenture will apply, mutatis mutandis, to the obligations of the Sponsor
hereunder. The
obligations of the Sponsor hereunder do not constitute Senior Indebtedness (as
defined in the Indenture) of the Sponsor.
Section 1.03. Term of Agreement. This Agreement shall terminate and be of
no further force and effect upon the dissolution or termination of the Issuer
Trust, provided, however, that this Agreement shall continue to be effective or
shall be reinstated, as the case may be, if at any time any holder of Preferred
Securities or any Beneficiary is required to repay any sums paid under the
Preferred Securities, under any Obligation, under the Guarantee Agreement dated
the date hereof by the Sponsor and Wilmington Trust Company, as guarantee
trustee, or under the Declaration of Trust for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.04. Waiver of Notice. The Sponsor hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Sponsor hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
Section 1.05. No Impairment. The obligations, covenants, agreements and
duties of the Sponsor under this Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Issuer Trust of all or
any portion of the Obligations or for the performance of any other obligation
under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Issuer Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer Trust or any of the assets of
the Issuer Trust (other than the dissolution of the Issuer Trust in accordance
with the terms thereof).
There shall be no obligation of the Beneficiaries to give notice to, or
obtain the consent of, the Sponsor with respect to the happening or any of the
foregoing.
Section 1.06. Enforcement. A Beneficiary may enforce this Agreement
directly against the Sponsor and the Sponsor waives any right or remedy to
require that any action be brought against the Issuer Trust or any other person
or entity before proceeding against the Sponsor.
Section 1.07. Subrogation. The Sponsor shall be subrogated to all rights
(if any) of any Beneficiary against the Issuer Trust in respect of any amounts
paid to the Beneficiaries by the Sponsor under this Agreement; provided,
however, that the Sponsor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any rights that it may
acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all
cases as a result of payment under this Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Agreement or any payments are
due to the holders of Preferred Securities under the Declaration of Trust.
ARTICLE II.
Section 2.01. Assignment. This Agreement may not be assigned by either
party hereto without the consent of the other, and any purported assignment
without such consent shall be void; except that upon any transfer of the Common
Securities, this Agreement shall be assigned and delegated by the Sponsor to its
successor with such transfer without any action by either party hereto.
Section 2.02. Binding Effect. All guarantees and agreements contained in
this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Sponsor and shall inure to the benefit of the
Beneficiaries.
Section 2.03. Amendment. So long as there remains any Beneficiary or any
Preferred Securities are outstanding, this Agreement shall not be modified or
amended in any manner adverse to such Beneficiary or to the holders of the
Preferred Securities without the consent of such Beneficiary or the holders of
the Preferred Securities, as the case may be.
Section 2.04. Notices. Any notice, request or other communication required
or permitted to be given hereunder shall be given in writing by delivering the
same against receipt therefor by facsimile transmission (confirmed by mail),
telex or by registered or certified mail, addressed as follows (and if so given,
shall be deemed given when mailed or upon receipt of an answer-back, if sent by
telex):
[to be provided]
With a copy to:
[to be provided]
Section 2.05. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
THIS AGREEMENT is executed as of the day and year first above written.
GREAT WOLF RESORTS, INC.
By: ____________________________________
Name:
Title:
GW CAPITAL TRUST II
By: ____________________________________
Name:
Title: Administrative Trustee