EXHIBIT 4.12
COMMON SECURITIES GUARANTEE AGREEMENT
of
GREAT WOLF RESORTS, INC.
(as Guarantor)
June ___, 2006
TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS
Section 1.1. Definitions....................................................................................................... 2
ARTICLE II
GUARANTEE
Section 2.1. Guarantee......................................................................................................... 2
Section 2.2. Waiver of Notice and Demand....................................................................................... 3
Section 2.3. Obligations Not Affected.......................................................................................... 3
Section 2.4. Rights of Holders................................................................................................. 4
Section 2.5. Guarantee of Payment.............................................................................................. 4
Section 2.6. Subrogation....................................................................................................... 4
Section 2.7. Independent Obligations........................................................................................... 4
ARTICLE III
COVENANTS AND SUBORDINATION
Section 3.1. Subordination..................................................................................................... 5
Section 3.2. Pari Passu Guarantees............................................................................................. 5
ARTICLE IV
TERMINATION
Section 4.1. Termination....................................................................................................... 5
ARTICLE V
MISCELLANEOUS
Section 5.1. Successors and Assigns............................................................................................ 5
Section 5.2. Amendments........................................................................................................ 6
Section 5.3. Notices........................................................................................................... 6
Section 5.4. Benefit........................................................................................................... 7
Section 5.5. Interpretation.................................................................................................... 7
Section 5.6. Governing Law..................................................................................................... 7
Section 5.7. Counterparts...................................................................................................... 7
This GUARANTEE AGREEMENT, dated as of June __, 2006 is executed and
delivered by GREAT WOLF RESORTS, INC., a Delaware corporation (the "Guarantor")
having its principal office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
for the benefit of the Holders (as defined herein) from time to time of the
Common Securities (as defined herein) of GW Capital Trust II, a Delaware
statutory trust (the "Issuer Trust").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Trust Agreement"), dated as of June __, 2006, among Great Wolf Resorts, Inc.,
as Sponsor, Wilmington Trust Company, as Property Trustee (the "Property
Trustee"), Wilmington Trust Company, as Delaware Trustee (the "Delaware
Trustee") (collectively, the "Issuer Trustees"), two individuals selected by the
holders of the Common Securities to act as administrative trustees with respect
to the Issuer Trust and the Holders from time to time of undivided beneficial
ownership interests in the assets of the Issuer Trust, the Issuer Trust is
issuing $__ aggregate liquidation amount of its __% Common Securities,
liquidation amount $25 per common security (the "Common Securities") [(including
$___ in aggregate liquidation amount of additional Common Securities being
issued pursuant to an over-allotment option granted to the underwriters of the
trust preferred securities of the Trust)], representing common undivided
beneficial ownership interests in the assets of the Issuer Trust and having the
terms set forth in the Trust Agreement;
WHEREAS, as incentive for the Holders to purchase the Common Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth herein, to pay to the Holders of the Common Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Trust Preferred Securities Guarantee Agreement") for the benefit
of the holders of the Trust Preferred Securities (as defined in the Trust
Agreement) in substantially identical terms to this Common Securities Guarantee
Agreement, except that if any Event of Default (as defined in the Trust
Agreement) resulting from a Debenture Default has occurred and is continuing,
the rights of Holders of the Common Securities to receive Guarantee Payments
under this Common Securities Guarantee Agreement are subordinated to the rights
of holders of Trust Preferred Securities to receive Guarantee Payments under the
Trust Preferred Securities Guarantee Agreement.
NOW, THEREFORE, in consideration of the purchase of the Common Securities
by each Holder, which purchase the Guarantor hereby acknowledges shall benefit
the Guarantor, and intending to be legally bound hereby, the Guarantor executes
and delivers this Guarantee Agreement for the benefit of the Holders from time
to time of the Common Securities.
ARTICLE I
DEFINITIONS
Section 1.1. Definitions.
As used in this Guarantee Agreement, the terms set forth below shall,
unless the context otherwise requires, have the following meanings. Capitalized
terms used but not otherwise defined herein shall have the meanings assigned to
such terms in the Trust Agreement as in effect on the date hereof.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Common Securities, to the extent not paid or
made by or on behalf of the Issuer Trust: (i) any accumulated and unpaid
Distributions required to be paid on the Common Securities, to the extent the
Issuer Trust shall have funds on hand available therefor at such time, (ii) the
Redemption Price, with respect to the Common Securities called for redemption by
the Issuer Trust, to the extent that the Issuer Trust shall have funds on hand
available therefor at such time, and (iii) upon a voluntary or involuntary
dissolution, winding-up or liquidation of the Issuer Trust, unless Junior
Subordinated Debentures are distributed to the Holders, the lesser of (a) the
aggregate of the liquidation amount and all accumulated and unpaid Distributions
to but excluding the date of payment, to the extent that the Issuer Trust shall
have funds on hand available therefor at such time, and (b) the amount of assets
of the Issuer Trust remaining available for distribution to Holders on
liquidation of the Issuer Trust (in either case, the "Liquidation
Distribution"). If any Event of Default resulting from a Debenture Default has
occurred and is continuing, no Guarantee Payments with respect to the Common
Securities shall be made until holders of Trust Preferred Securities shall be
paid in full the Guarantee Payments to which they are entitled under the Trust
Preferred Securities Guarantee Agreement.
"Holder" means any holder, as registered on the books and records of the
Issuer Trust, of any Common Securities.
ARTICLE II
GUARANTEE
Section 2.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full, on a
subordinated basis as set forth in Article III, to the Holders the Guarantee
Payments (without duplication of amounts theretofore paid by or on behalf of the
Issuer Trust), as and when due, regardless of any defense, right of set-off or
counterclaim which the Issuer Trust may have or assert, except the defense of
payment. The Guarantor's obligation to make a Guarantee Payment may be satisfied
by direct payment of the required amounts by the Guarantor to the Holders or by
causing the
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Issuer Trust to pay such amounts to the Holders. The Guarantor shall give prompt
written notice to the Guarantee Trustee in the event it makes any direct payment
hereunder.
Section 2.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the Guarantee Agreement
and of any liability to which it applies or may apply, presentment, demand for
payment, any right to require a proceeding first against the Issuer Trust or any
other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
Section 2.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under
this Guarantee 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 release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer Trust of any express or implied
agreement, covenant, term or condition relating to the Common Securities to be
performed or observed by the Issuer Trust;
(b) the extension of time for the payment by the Issuer Trust of all
or any portion of the Distributions (other than an extension of time for payment
of Distributions that results from the extension of any interest payment period
on the Junior Subordinated Debentures as so provided in the Indenture),
Redemption Price, Liquidation Distribution or any other sums payable under the
terms of the Common Securities or the extension of time for the performance of
any other obligation under, arising out of, or in connection with, the Common
Securities;
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Common Securities, or any
action on the part of the Issuer Trust granting indulgence or extension of any
kind;
(d) 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;
(e) any invalidity of, or defect or deficiency in, the Common
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor (other than payment of
the underlying obligation), it being the intent of this Section 2.3 that the
obligations of the Guarantor hereunder shall be absolute and unconditional under
any and all circumstances.
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There shall be no obligation of the Holders to give notice to, or obtain
the consent of, the Guarantor with respect to the happening of any of the
foregoing.
Section 2.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement
will be for the benefit of the Holders; (ii) the Holders of a Majority in
Liquidation Amount of the Common Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available in
respect of this Guarantee Agreement or exercising any trust or power conferred
under this Guarantee Agreement; and (iii) any Holder may institute a legal
proceeding directly against the Guarantor to enforce its rights under this
Guarantee Agreement, without first instituting a legal proceeding against the
Issuer Trust or any other Person.
Section 2.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment of
the Guarantee Payments in full (without duplication of amounts theretofore paid
by the Issuer Trust) or upon the distribution of Junior Subordinated Debentures
to Holders as provided in the Trust Agreement.
Section 2.6. Subrogation.
The Guarantor shall be subrogated to all rights (if any) of the Holders
against the Issuer Trust in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any rights which it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee Agreement, at the time of any such
payment, any amounts are due and unpaid under this Guarantee Agreement or any
payments are due to the holders of Trust Preferred Securities under the Trust
Agreement. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Holders.
Section 2.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer Trust with respect to the Common Securities and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 2.3 hereof.
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ARTICLE III
COVENANTS AND SUBORDINATION
Section 3.1. Subordination.
This Guarantee Agreement will constitute an unsecured obligation of the
Guarantor and will rank subordinate and junior in right of payment to all Senior
Indebtedness of the Guarantor to the extent and in the manner set forth in the
Indenture with respect to the Junior Subordinated Debentures, and the provisions
of Article XIII of the Indenture will apply, mutatis mutandis, to the
obligations of the Guarantor hereunder. The obligations of the Guarantor
hereunder do not constitute Senior Indebtedness of the Guarantor.
Section 3.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement shall rank
pari passu with any similar guarantee agreements issued by the Guarantor on
behalf of the holders of common securities issued by the Issuer Trust and with
any other security, guarantee or other obligation that is expressly stated to
rank pari passu with the obligations of the Guarantor under this Guarantee
Agreement.
ARTICLE IV
TERMINATION
Section 4.1. Termination.
This Guarantee Agreement shall terminate and be of no further force and
effect upon (i) full payment of the Redemption Price of all Common Securities,
(ii) the distribution of Junior Subordinated Debentures to the Holders in
exchange for all of the Common Securities or (iii) full payment of the amounts
payable in accordance with Article IX of the Trust Agreement upon liquidation of
the Issuer Trust. Notwithstanding the foregoing, this Guarantee Agreement will
continue to be effective or will be reinstated, as the case maybe, if at any
time any Holder is required to repay any sums paid with respect to Common
Securities or this Guarantee Agreement.
ARTICLE V
MISCELLANEOUS
Section 5.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement shall
bind the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Common Securities
then outstanding. Except in connection with a consolidation, merger or sale
involving the Guarantor that is permitted under Article IX of the Indenture and
pursuant to which the assignee agrees in writing to perform the Guarantor's
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obligations hereunder, the Guarantor shall not assign its obligations hereunder,
and any purported assignment that is not in accordance with these provisions
shall be void.
Section 5.2. Amendments.
Except with respect to any changes that do not materially adversely affect
the rights of the Holders (in which case no consent of the Holders will be
required), this Guarantee Agreement may only be amended with the prior approval
of the Holders of not less than a Majority in Liquidation Amount of the Common
Securities. The provisions of Article VI of the Trust Agreement concerning
meetings of the Holders shall apply to the giving of such approval.
Section 5.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied (confirmed by delivery of the original) or
mailed by first class mail as follows:
(a) if given to the Guarantor, to the address or telecopy number set
forth below or such other address or telecopy number or to the attention of such
other Person as the Guarantor may give notice to the Holders:
Great Wolf Resorts, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Office of the Secretary
(b) if given to the Issuer Trust, in care of the Property Trustee, at
the Issuer Trust's (and the Property Trustee's) address set forth below or such
other address or telecopy number or to the attention of such other Person as the
Property Trustee on behalf of the Issuer Trust may give notice to the Holders:
c/o Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
with a copy to:
Great Wolf Resorts, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Office of the Secretary
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(c) if given to any Holder, at the address set forth on the books and
records of the Issuer Trust.
All notices hereunder shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
Section 5.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and is
not separately transferable from the Common Securities.
Section 5.5. Interpretation.
In this Guarantee Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined
in the preamble hereto have the respective meanings assigned to them in Section
1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a reference to the singular includes the plural and vice versa;
and
(f) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
Section 5.6. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 5.7. 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.
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THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
GREAT WOLF RESORTS, INC., as Guarantor
By: _________________________
Name:
Title:
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