Exhibit 4.3
DECLARATION OF TRUST
This Declaration of Trust, dated as of October 30, 2003, by and among
WestCoast Hospitality Corporation, a Washington corporation, as "Sponsor," and
Xxxxx X. Xxxxxxxx, Xxxxxx X. XxXxxxxxx and Wilmington Trust Company, as
"Trustees."
The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "WestCoast
Hospitality Capital Trust," in which name the Trustees, or the Sponsor to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts on behalf of the Trust, and xxx and be sued on behalf of the Trust.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. The Trustees hereby acknowledge receipt of such amount in
trust from the Sponsor, which amount shall constitute the initial trust estate.
The Trustees hereby declare that they will hold the trust estate in trust for
the Sponsor. It is the intention of the parties hereto that the Trust created
hereby constitute a statutory trust under Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Sections 3801 et seq. (the "Statutory Trust Act"), and that
this document constitutes the governing instrument of the Trust. The Trustees
are hereby authorized and directed to execute and file a certificate of trust
with the Delaware Secretary of State in accordance with the provisions of the
Statutory Trust Act.
3. The Sponsor and the Trustees will enter into an amended and restated
Declaration of Trust, satisfactory to each such party, to provide for the
contemplated operation of the Trust created hereby and the issuance of the Trust
Preferred Securities and Trust Common Securities referred to therein. Prior to
the execution and delivery of such amended and restated Declaration of Trust,
the Trustees shall not have any duty or obligation hereunder or with respect to
the trust estate, except as otherwise required by applicable law or as may be
necessary to obtain prior to such execution and delivery of any licenses,
consents or approvals required by applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct the Sponsor,
as the sponsor of the Trust, to prepare, execute and file with the Securities
and Exchange Commission a registration statement on Form S-1, including any and
all amendments thereto (the "Registration Statement") under the Securities Act
of 1933, as amended, in forms prepared by the Sponsor, in relation to the
offering and sale of Trust Preferred Securities to the public, as contemplated
by the prospectus included as a part of the Registration Statement, as such
prospectus may be amended or supplemented from time to time, (b) a registration
statement on Form 8-A or other appropriate form, including any and all
amendments thereto, and (c) to do all things necessary, convenient or advisable
in connection with the offering and sale of Trust Preferred Securities to the
public. In connection with the foregoing, the Sponsor and each Trustee, solely
in its capacity as Trustee of the Trust, hereby constitutes and appoints Xxxxx
X. Xxxxxxxx and Xxxxxx X. XxXxxxxxx and each of them, as his or its, as the case
may be, true and lawful attorneys-in-fact and agents, with full power of
substitution, for the Sponsor or in the Sponsor's name, place and stead, in any
and all capacities, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as the Sponsor might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
respective substitute or substitutes, shall do or cause to be done by virtue
hereof.
5. This Declaration of Trust may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor, which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the
Statutory Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Sponsor is entitled to appoint or remove without cause any Trustee at any time.
A Trustee may resign upon 30-days' prior notice to the Sponsor.
7. Wilmington Trust Company, in its capacity as Trustee, shall not have
the powers or the duties of the Trustees set forth herein (except as may be
required under the Statutory Trust Act) and shall be a Trustee hereunder for the
sole and limited purpose of fulfilling the requirements of Section 3807 of the
Statutory Trust Act.
8. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be executed as of the day and year first above written.
WESTCOAST HOSPITALITY CORPORATION
as Sponsor
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, President and CEO
XXXXX X. XXXXXXXX,
as Trustee
/s/ Xxxxx X. Xxxxxxxx
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XXXXXX X. XxXXXXXXX,
as Trustee
/s/ Xxxxxx X. XxXxxxxxx
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WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ Xxxxx Xxxxxxxx
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Authorized Signatory
