EXHIBIT 4(ee)
DECLARATION OF TRUST
OF
CIRCUS FINANCE I
THIS DECLARATION OF TRUST (this "Declaration"), dated and effective as
of June 23, 1998, by the undersigned trustees (together with all other
Persons from time to time duly appointed and serving as trustees in
accordance with the provisions of this Declaration, the "Trustees"), Circus
Circus Enterprises, Inc., a Nevada corporation, as trust sponsor (the
"Sponsor"), and by the holders, from time to time, of undivided beneficial
interests in the Trust to be issued pursuant to this Declaration;
W I T N E S S E T H:
WHEREAS, the Trustees and the Sponsor desire to establish a trust (the
"Trust") pursuant to the Delaware Business Trust Act for the sole purpose of
issuing and selling certain securities representing undivided beneficial
interests in the assets of the Trust and investing the proceeds thereof in
certain Debt Securities (as hereinafter defined) of the Debt Issuer (as
hereinafter defined);
NOW THEREFORE, it being the intention of the parties hereto that the
Trust constitute a business trust under the Delaware Business Trust Act and
that this Declaration constitute the governing instrument of such business
trust, the Trustees declare that all assets contributed to the Trust will be
held in trust for the benefit of the holders, from time to time, of undivided
beneficial interests in the assets of the Trust, subject to the provisions of
this Declaration.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. DEFINITIONS. Capitalized terms used in this Declaration
but not defined in the preamble above have the respective meanings assigned
thereto in this Section 1.1. A term defined anywhere in this Declaration has
the same meaning throughout.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a Saturday, Sunday or any day on
which banking institutions in New York, New York are authorized or required
by law to close.
"Business 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.
"Certificate" means a Common Security Certificate or a Preferred
Security Certificate.
"Common Security" means a security representing a common undivided
beneficial interest in the assets of the Trust with such terms as may be set
out in any amendment to this Declaration.
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security.
"Covered Person" means: (a) any trustee, officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or
(ii) the Trust's Affiliates; and (b) any Holder.
"Debt Issuer" means Circus Circus Enterprises, Inc., a Nevada
corporation, or any successor entity in a merger, consolidation or
amalgamation, in its capacity as the issuer of the Debt Securities.
"Debt Securities" means the subordinated deferrable interest debentures
to be issued by the Debt Issuer and purchased with the proceeds of the
Securities.
"Delaware Trustee" has the meaning set forth in Section 3.
"Exchange Act" means the Securities and Exchange Act of 1934, as amended
from time to time, and any successor legislation.
"Holder" means a Person in whose name a Certificate representing a
Security is registered, such Person being a beneficial owner within the
meaning of the Business Trust Act.
"Indemnified Person" means (a) any Trustee; (b) any Affiliate of any
Trustee; (c) any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Trustee; or (d) any employee or
agent of the Trust or its Affiliates.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever
nature.
"Preferred Security" means a security representing a preferred undivided
beneficial interest in the assets of the Trust with such terms as may be set
out in any amendment to this Declaration.
"Preferred Security Certificate" means a certificate representing a
Preferred Security.
"Regular Trustee" means any Trustee other than the Delaware Trustee.
"Securities" mean the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, and any successor legislation.
"Sponsor" means Circus Circus Enterprises, Inc., a Nevada corporation,
or any successor entity in a merger, consolidation or amalgamation, in its
capacity as Sponsor of the Trust.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who from time to time
be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees
hereunder.
SECTION 1.2. INTERPRETATION. Each definition in this Declaration
includes the singular and the plural, and references to the neuter gender
include the masculine and feminine where appropriate. Terms which relate to
accounting matters shall be interpreted in accordance with generally accepted
accounting principles in effect from time to time. References to any statute
mean such statute as amended at that time and include any successor
legislation. The word "or" is not exclusive, and the words "herein,"
"hereof" and "hereunder" refer to this Declaration as a whole. The headings
to the Articles and Sections are for convenience of reference and shall not
affect the meaning or interpretation of this Declaration. Reference to
Articles, Sections and Exhibits means the Articles, Sections and Exhibits of
this Declaration. The Exhibits are hereby incorporated by reference into,
and shall be deemed a part of, this Declaration.
ARTICLE II
ORGANIZATION
SECTION 2.1. NAME. The Trust created by this Declaration is named
"Circus Finance I." The Trust's activities may be conducted under the name
of the Trust or any other name deemed advisable by the Regular Trustees.
SECTION 2.2. OFFICE. The address of the principal office of the Trust
is c/o Circus Circus Enterprises, Inc., 2880 Las Vegas Boulevard South,
Las Vegas, Nevada 89109. At any time, the Regular Trustees may designate
another principal office.
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SECTION 2.3. PURPOSE. The exclusive purposes and functions of the
Trust are (a) to issue and sell Securities and use the proceeds from such
sale to acquire the Debt Securities and (b) except as otherwise limited
herein, to engage in only those other activities necessary or incidental
thereto. The Trust shall not borrow money, issue debt or reinvest proceeds
derived from investments or pledge any of its assets.
SECTION 2.4. AUTHORITY. Subject to the limitations provided in this
Declaration, the Regular Trustees shall have exclusive and complete authority
to carry out the purposes of the Trust. An action taken by the Regular
Trustees in accordance with their powers shall constitute the act of, and
serve to bind, the Trust. In dealing with the Regular Trustees acting on
behalf of the Trust, no Person shall be required to inquire into the
authority of the Regular Trustees to bind the Trust. Persons dealing with
the Trust are entitled to rely conclusively on the power and authority of the
Regular Trustees as set forth in this Declaration.
SECTION 2.5. TITLE TO PROPERTY OF THE TRUST. Legal title to all assets
of the Trust shall be vested in the Trust.
SECTION 2.6. POWERS OF THE REGULAR TRUSTEES. The Regular Trustees
shall have the exclusive power and authority to cause the Trust to engage in
the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; PROVIDED, HOWEVER, that the
Trust may issue no more than one series of Preferred Securities and no more
than one series of Common Securities; and, PROVIDED FURTHER, there shall be
no interests in the Trust other than the Securities and the issuance of the
Securities shall be limited to a one-time, simultaneous issuance of both
Preferred Securities and Common Securities;
(b) in connection with the issue and sale of the Preferred
Securities, under the direction of the Sponsor, to:
(i) execute and file with the Securities and Exchange
Commission a registration statement on Form S-3 prepared by the Sponsor in
relation to the Preferred Securities, including any amendments thereto to be
prepared by the Sponsor;
(ii) determine the states in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to take any and all such acts as they deem necessary or
advisable to comply with the applicable laws of any of those states;
(iii) execute and file an application prepared by the Sponsor
to the New York Stock Exchange, Inc. or any other national stock exchange
and/or the Nasdaq National Market for listing upon notice of issuance of any
Preferred Securities;
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(iv) execute and file with the Securities and Exchange
Commission a registration statement on Form 8-A prepared by the Sponsor
relating to the registration of the Preferred Securities under Section 12(b)
or 12(g) of the Exchange Act, including any amendments thereto; and
(v) designate underwriters to be party to a purchase
agreement with respect to the offer and sale of the Preferred Securities and
to execute and enter into such purchase agreement;
(c) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and provide for reasonable compensation for such services;
(d) to incur expenses which are necessary or incidental to carry
out any of the purposes of this Declaration; and
(e) to execute all documents or instruments, perform all duties
and powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
SECTION 2.7. FILING OF CERTIFICATE OF TRUST. On or after the effective
date of this Declaration, the Trustees shall cause the Certificate of Trust
for the Trust in the form attached hereto as Exhibit A to be filed with the
Secretary of State of the State of Delaware.
SECTION 2.8. DURATION OF TRUST. The Trust, absent termination pursuant
to the provisions of Section 5.2, shall have existence for fifty-five years
from the date hereof.
ARTICLE III
TRUSTEES
SECTION 3.1. TRUSTEES. The number of Trustees shall initially be four,
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. The Sponsor
is entitled to appoint or remove without cause any Trustee at any time;
PROVIDED, HOWEVER, that the number of Trustees shall in no event be less than
three; and PROVIDED FURTHER that one Trustee, in the case of a natural
person, shall be a person who is resident of the State of Delaware or which,
if not a natural person, has its principal place of business in the State of
Delaware and meets the requirements of applicable Delaware law (the "Delaware
Trustee").
Except as expressly set forth in this Declaration, any power of the
Regular Trustees may be exercised by, or with the consent of, a majority of
the Regular Trustees; PROVIDED, HOWEVER, that if there are two or fewer
Regular Trustees, all powers of the Regular Trustees shall be exercised by,
or with the consent of, all of the Regular Trustees.
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The initial Regular Trustees shall be:
Michael S. Ensign
_____________________________
William A. Richardson
_____________________________
Glenn W. Schaeffer
_____________________________
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
SECTION 3.2. DELAWARE TRUSTEE. Notwithstanding any other provisions of
this Declaration, the Delaware Trustee, in its capacity as Delaware Trustee,
shall not be entitled to exercise any of the powers, nor shall the Delaware
Trustee have any of the duties and responsibilities, of the Regular Trustees
described in this Declaration. The Delaware Trustee shall be a Trustee for
the sole and limited purpose of fulfilling the requirements of Section 3807
of the Business Trust Act.
SECTION 3.3. EXECUTION OF DOCUMENTS. (a) The Regular Trustees are
authorized to execute on behalf of the Trust any documents that the Regular
Trustees have the power and authority to cause the Trust to execute pursuant
to Section 2.6.
(b) The Regular Trustees may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 their
power for the purposes of signing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to
Section 2.6.
ARTICLE IV
LIMITATION OF LIABILITY OF HOLDERS
OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1. EXCULPATION. (a) No Indemnified Person shall be liable,
responsible or accountable in damages or otherwise to the Trust or any
Covered Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on
behalf of the Trust and in a manner such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such
Indemnified Person by this Declaration or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim incurred by reason
of such Indemnified Person's gross negligence or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with
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reasonable care by or on behalf of the Trust, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence
and amount of assets from which distributions to Holders might properly be
paid.
SECTION 4.2. FIDUCIARY DUTY. (a) To the extent that, at law or in
equity, an Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration shall not be liable to the
Trust or to any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of an Indemnified Person
otherwise existing at law or in equity, are agreed by the parties hereto to
replace such other duties and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between and Indemnified Person and Covered Persons, or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person shall act
in a manner that is, or provide terms that are, fair and reasonable to the
Trust or any Holder, the Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms, considering in each case
the relative interest of each party (including its own interest) to such
conflict, agreement, transaction or situation and the benefits and burdens
relating to such interests, any customary or accepted industry practices, and
any applicable generally accepted accounting practices or principles. In the
absence of bad faith by the Indemnified Person the resolution, action or term
so made, taken or provided by the Indemnified Person shall not constitute a
breach of this Declaration or any other agreement contemplated herein or of
any duty or obligation of the Indemnified Person at law or in equity or
otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to consider such interest
and factors as it desires, including its own interests, and shall have no
duty or obligation to give any consideration to any interest of, or factors
affecting, the Trust or any other Person; or
(ii) in its "good faith" or under another express standard
the Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by the Declaration or by
applicable law.
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SECTION 4.3. INDEMNIFICATION. (a) To the fullest extent permitted by
applicable law, the Sponsor shall indemnify and hold harmless each
Indemnified Person from and against any loss, damage or claim incurred by
such Indemnified Person by reason of any act or omission performed or omitted
by such Indemnified Person in good faith on behalf of the 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 except
that no Indemnified Person shall be entitled to be indemnified in respect of
any loss, damage or claim incurred by such Indemnified Person by reason of
gross negligence or willful misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in defending any
claim, demand, action, suit or proceeding shall, from time to time, be
advanced by the Sponsor prior to the final disposition of such claim, demand,
action, suit or proceeding upon receipt by the Sponsor of an undertaking by
or on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified as
authorized in Section 4.3(a).
SECTION 4.4. OTHER BUSINESSES. Any Covered Person, the sponsor and the
Delaware Trustee 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 Trust, and the Trust and the Holders
shall have no rights by virtue of this Declaration 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 Trust, shall not
be deemed wrongful or improper. No Covered Person, the Sponsor or the
Delaware Trustee shall be obligated to present any particular investment or
other opportunity to the Trust even if such opportunity is of a character
that, if presented to the Trust, could be taken by the Trust, and any Covered
Person, the Sponsor and the Delaware 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 Covered
Person and the Delaware Trustee may engage or be interested in any financial
or other transaction with the Sponsor or any Affiliate of the Sponsor, or may
act on any committee or body of holders of securities or other obligations of
the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, DISSOLUTION, MISCELLANEOUS
SECTION 5.1. AMENDMENTS. At any time before the issue of any
Securities, this Declaration may be amended by, and only by, a written
instrument executed by a majority of the Regular Trustees and the Sponsor.
SECTION 5.2. DISSOLUTION OF TRUST. (a) The Trust shall dissolve and
its affairs shall be wound up:
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(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the Sponsor's
Certificate of Incorporation;
(iii) upon the entry of a decree of judicial dissolution of
the Sponsor or the Trust; or
(iv) before the issue of any Securities, with the consent of
all of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall file a Certificate of
Cancellation for the Trust with the Secretary of State of the State of
Delaware.
SECTION 5.3. GOVERNING LAW. This Declaration and the rights of the
parties hereunder 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 principles of conflict of laws.
SECTION 5.4. SUCCESSORS AND ASSIGNS. Whenever in this Declaration any
of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements
in this Declaration by the Sponsor and the Trustees shall bind and inure to
the benefit of their respective successors and assigns, whether or not so
expressed.
SECTION 5.5. PARTIAL ENFORCEABILITY. If any provision of this
Declaration, or the application of such provision to any Person or
circumstance, shall be held invalid, the remainder of this Declaration, or
the application of such provision to any Person or circumstances other than
those to which it is held invalid, shall not be affected thereby.
SECTION 5.6. COUNTERPARTS. This Declaration may contain more than one
counterpart of the signature page and this Declaration may be executed by the
affixing of the signature of each of the Trustees to one of such counterpart
signature pages. All of such counterpart signature pages shall be read as
though one, and they shall have the same force and effect as though all of
the signers had signed a single signature page.
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IN WITNESS WHEREOF, the undersigned has caused this Declaration of Trust
of Circus Finance I to be executed as of the day and year first above
written.
TRUSTEES:
/s/ MICHAEL S. ENSIGN
-------------------------------------------
Michael S. Ensign, as Trustee
/s/ WILLIAM A. RICHARDSON
-------------------------------------------
William A. Richardson, as Trustee
/s/ GLENN W. SCHAEFFER
-------------------------------------------
Glenn W. Schaeffer, as Trustee
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ MARY JANE MORRISSEY
--------------------------------------
Name: Mary Jane Morrissey
Title: Authorized Signatory
SPONSOR:
CIRCUS CIRCUS ENTERPRISES, INC.
By: /s/ GLENN W. SCHAEFFER
-------------------------------------
Name: Glenn W. Schaeffer
Title: President
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EXHIBIT A
CERTIFICATE OF TRUST
OF
CIRCUS FINANCE I
This Certificate of Trust of Circus Finance I (the "Trust") dated June __,
1998, is being duly executed and filed by the undersigned, as trustees, to
form a business trust pursuant to the Delaware Business Trust Act,
12 DEL. C. Section 3801, ET SEQ.. The undersigned, as trustees, do hereby
certify as follows:
(1) The name of the business trust being formed hereby is "Circus
Finance I."
(2) The name and business address of the trustee of the Trust which has
its principal place of business in the State of Delaware is as follows:
The Bank of New York (Delaware)
400 White Clay Center
Route 273
Newark, Delaware 19711
(3) This Certificate of Trust shall be effective as of the date of
filing.
IN WITNESS WHEREOF, the undersigned being the sole trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
Dated: June __, 1998
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, as Trustee
-------------------------------
, as Trustee
-------------------------------
, as Trustee
THE BANK OF NEW YORK (DELAWARE)
as Delaware Trustee
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By:
---------------------------
Name:
Title:
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