EXHIBIT 4(hh)
AMENDED AND RESTATED DECLARATION OF TRUST
CIRCUS FINANCE II
Dated as of [______ __, ____]
TABLE OF CONTENTS
PAGE
ARTICLE I
INTERPRETATION AND DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . .1
SECTION 1.1. Definitions. . . . . . . . . . . . . . . . . . . . . .1
ARTICLE II
TRUST INDENTURE ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
SECTION 2.1. Trust Indenture Act; Application . . . . . . . . . . .8
SECTION 2.2. Lists of Holders of Securities . . . . . . . . . . . .8
SECTION 2.3. Reports by the Property Trustee. . . . . . . . . . . .9
SECTION 2.4. Periodic Reports to Property Trustee . . . . . . . . .9
SECTION 2.5. Evidence of Compliance with Conditions Precedent . . .9
SECTION 2.6. Events of Default; Waiver. . . . . . . . . . . . . . .9
SECTION 2.7. Event of Default; Notice . . . . . . . . . . . . . . 11
ARTICLE III
ORGANIZATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.1. Name . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.2. Office . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.3. Purpose. . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.4. Authority. . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.5. Title to Property of the Trust . . . . . . . . . . . 13
SECTION 3.6. Powers and Duties of the Regular Trustees. . . . . . 13
SECTION 3.7. Prohibition of Actions by the Trust and the Trustees 16
SECTION 3.8. Powers and Duties of the Property Trustee. . . . . . 16
SECTION 3.9. Certain Duties and Responsibilities of the Property
Trustee . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.10. Certain Rights of the Property Trustee . . . . . . . 20
SECTION 3.11. Delaware Trustee . . . . . . . . . . . . . . . . . . 22
SECTION 3.12. Execution of Documents . . . . . . . . . . . . . . . 22
SECTION 3.13. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . . . 22
SECTION 3.14. Duration of Trust. . . . . . . . . . . . . . . . . . 22
SECTION 3.15. Mergers. . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE IV
SPONSOR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.1. Sponsor's Purchase of Common Securities. . . . . . . 24
SECTION 4.2. Responsibilities of the Sponsor. . . . . . . . . . . 24
SECTION 4.3. Expenses . . . . . . . . . . . . . . . . . . . . . . 25
PAGE
ARTICLE V
TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 5.1. Number of Trustees . . . . . . . . . . . . . . . . . 26
SECTION 5.2. Delaware Trustee . . . . . . . . . . . . . . . . . . 26
SECTION 5.3. Property Trustee; Eligibility. . . . . . . . . . . . 26
SECTION 5.4. Qualifications of Regular Trustees and
Delaware Trustee Generally. . . . . . . . . . . . . 27
SECTION 5.5. Initial Trustees . . . . . . . . . . . . . . . . . . 27
SECTION 5.6. Appointment, Removal and Resignation of Trustees . . 28
SECTION 5.7. Vacancies Among Trustees . . . . . . . . . . . . . . 29
SECTION 5.8. Effect of Vacancies. . . . . . . . . . . . . . . . . 29
SECTION 5.9. Meetings . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.10. Delegation of Power. . . . . . . . . . . . . . . . . 30
ARTICLE VI
DISTRIBUTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.1. Distributions. . . . . . . . . . . . . . . . . . . . 31
ARTICLE VII
ISSUANCE OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 7.1. General Provisions Regarding Securities. . . . . . . 31
ARTICLE VIII
DISSOLUTION OF TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 8.1. Dissolution of Trust . . . . . . . . . . . . . . . . 32
ARTICLE IX
TRANSFER OF INTERESTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 9.1. Transfer of Securities . . . . . . . . . . . . . . . 33
SECTION 9.2. Transfer of Certificates . . . . . . . . . . . . . . 34
SECTION 9.3. Deemed Security Holders. . . . . . . . . . . . . . . 34
SECTION 9.4. Book Entry Interests . . . . . . . . . . . . . . . . 34
SECTION 9.5. Notices to Clearing Agency . . . . . . . . . . . . . 35
SECTION 9.6. Appointment of Successor Clearing Agency . . . . . . 35
SECTION 9.7. Definitive Preferred Security Certificates . . . . . 35
SECTION 9.8. Mutilated, Destroyed, Lost or Stolen Certificates. . 36
SECTION 9.9. Mandatory Disposition of Securities Pursuant to
Gaming Laws. . . . . . . . . . . . . . . . . . . . . 36
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS . . . 37
SECTION 10.1. Liability. . . . . . . . . . . . . . . . . . . . . . 37
SECTION 10.2. Exculpation. . . . . . . . . . . . . . . . . . . . . 37
SECTION 10.3. Fiduciary Duty . . . . . . . . . . . . . . . . . . . 38
SECTION 10.4. Indemnification and Reimbursement. . . . . . . . . . 39
PAGE
SECTION 10.5. Outside Businesses . . . . . . . . . . . . . . . . . 39
ARTICLE XI
ACCOUNTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 11.1. Fiscal Year. . . . . . . . . . . . . . . . . . . . . 40
SECTION 11.2. Certain Accounting Matters . . . . . . . . . . . . . 40
SECTION 11.3. Banking. . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 11.4. Withholding. . . . . . . . . . . . . . . . . . . . . 41
ARTICLE XII
AMENDMENTS AND MEETINGS. . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 12.1. Amendments . . . . . . . . . . . . . . . . . . . . . 42
SECTION 12.2. Meetings of the Holders; Action by Written Consent.. 44
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE . . . . . . . . . 45
SECTION 13.1. Representations and Warranties of Property Trustee.. 45
SECTION 13.2. Representations and Warranties of Delaware Trustee . 46
ARTICLE XIV
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 14.1. Notices. . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 14.2. Governing Law. . . . . . . . . . . . . . . . . . . . 48
SECTION 14.3. Intention of the Parties . . . . . . . . . . . . . . 48
SECTION 14.4. Headings . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 14.5. Successors and Assigns . . . . . . . . . . . . . . . 48
SECTION 14.6. Partial Enforceability . . . . . . . . . . . . . . . 48
SECTION 14.7. Counterparts . . . . . . . . . . . . . . . . . . . . 49
ANNEX I
TERMS OF [___]% TRUST ORIGINATED PREFERRED SECURITIES AND COMMON
SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .I-1
1. Designation and Amount . . . . . . . . . . . . . . .I-1
2. Distributions. . . . . . . . . . . . . . . . . . . .I-1
3. Liquidation Distribution Upon Dissolution. . . . . .I-3
4. Redemption and Distribution. . . . . . . . . . . . .I-4
5. Voting Rights - Preferred Securities . . . . . . . .I-8
6. Voting Rights - Common Securities. . . . . . . . . .I-9
7. Amendments to Declaration and Indenture. . . . . . I-11
8. Pro Rata . . . . . . . . . . . . . . . . . . . . . I-12
9. Ranking. . . . . . . . . . . . . . . . . . . . . . I-12
10. Listing. . . . . . . . . . . . . . . . . . . . . . I-12
11. Acceptance of Securities Guarantee and Indenture . I-12
PAGE
12. No Preemptive Rights . . . . . . . . . . . . . . . I-12
13. Miscellaneous. . . . . . . . . . . . . . . . . . . I-13
14. Agreement of Holders and Preferred Security
Beneficial Owners . . . . . . . . . . . . . . . . I-13
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE . . . . . . . . . . . . . . . . . A1-1
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE. . . . . . . . . . . . . . . . . . . A2-1
EXHIBIT B
SPECIMEN OF SUBORDINATED DEBENTURE . . . . . . . . . . . . . . . . . . . .B-1
CROSS-REFERENCE TABLE*
Section of Section of
Trust Indenture Act Declaration
of 1939, as amended
310(a) 5.3(a)
310(b) 5.3(c), 5.3(d)
310(c) Inapplicable
311(a) 2.2(b)
311(b) 2.2(b)
311(c) Inapplicable
312(a) 2.2(a)
312(b) 2.2(b)
313 2.3
314(a) 2.4
314(b) Inapplicable
314(c) 2.5
314(d) Inapplicable
314(e) 1.1, 2.5
314(f) Inapplicable
315(a) 3.9(b)
315(c) 3.9(a)
315(d) 3.9(b)
316(a) Annex I
316(c) 3.6(e)
317(a) 3.8(d)
317(b) 3.8(h)
___________________
* This Cross-Reference Table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
AMENDED AND RESTATED DECLARATION OF TRUST
OF CIRCUS FINANCE II
[______ __, ____]
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration"), dated
and effective as of [______ __, ____], by the Trustees (as defined herein),
the Sponsor (as defined herein) and by the holders, from time to time, of
undivided beneficial interests in the assets of 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 created Circus Finance II
(the "Trust") as a business trust under the Delaware Business Trust Act
pursuant to a Declaration of Trust dated as of June 23, 1998 (the "Original
Declaration") and a Certificate of Trust filed with the Secretary of State of
the State of Delaware on June 23, 1998, for the exclusive purposes of issuing
and selling certain securities representing undivided beneficial interests in
the assets of the Trust, investing the proceeds thereof in certain
Subordinated Debentures of the Subordinated Debenture Issuer (as defined
herein) and engaging in activities necessary or incidental thereto;
WHEREAS, prior to the date hereof, no interests in the Trust have
been issued; and
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
amend and restate each and every term and provision of the Original
Declaration.
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as 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
the securities representing undivided beneficial interests in the assets of
the Trust issued hereunder, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1. DEFINITIONS.
Unless the context otherwise requires:
(a) capitalized terms used in this Declaration but not
defined in the preamble above have the respective meanings assigned to them
in this Section 1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration"
are to this Declaration as modified, supplemented or amended from time to
time;
(d) all references in this Declaration to Articles and
Sections and Annexes and Exhibits are to Articles and Sections of and Annexes
and Exhibits to this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires; and
(f) a reference in this Declaration to the singular includes
the plural and vice versa.
"AFFILIATE" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"AUTHORIZED OFFICER" of a Person means any Person that is
authorized to bind such Person.
"BOOK ENTRY INTEREST" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 9.4.
"BUSINESS DAY" means any day other than a Saturday, a Sunday
or any other day on which banking institutions in New York, New York or the
New York Stock Exchange are authorized or required by law to close.
"BUSINESS TRUST ACT" means Chapter 38 of Title 12 of the
Delaware Code, 12 DEL. CODE Section 3801 ET SEQ., as it may be amended from
time to time.
"CERTIFICATE" means a Common Security Certificate or a
Preferred Security Certificate.
"CLEARING AGENCY" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act that is acting
as depositary for the Preferred Securities and in whose name or in the name
of a nominee of that organization shall be registered
2
a Global Certificate and which shall undertake to effect book entry transfers
and pledges of the Preferred Securities.
"CLEARING AGENCY PARTICIPANT" means a broker, dealer, bank or
other financial institution or other Person for whom from time to time the
Clearing Agency effects book entry transfers and pledges of securities
deposited with the Clearing Agency.
"CLOSING DATE" means [_______ __, ____].
"CODE" means the Internal Revenue Code of 1986 as amended from
time to time, or any successor legislation.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON SECURITIES GUARANTEE" means the guarantee agreement,
dated as of [______ __, ____], of the Sponsor in respect of the Common
Securities.
"COMMON SECURITY" has the meaning specified in Section 7.1.
"COMMON SECURITY CERTIFICATE" means a definitive certificate
in fully registered form representing a Common Security substantially in the
form of Exhibit A-2.
"COVERED PERSON" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent of (i) the
Trust or (ii) the Trust's Affiliates; and (b) any Holder of Securities.
"DELAWARE TRUSTEE" has the meaning set forth in Section 5.2.
"DEFINITIVE PREFERRED SECURITY CERTIFICATES" has the meaning
set forth in Section 9.4.
"DIRECTION" by a Person means a written direction signed:
(a) if the Person is a natural Person, by that Person; or
(b) in any other case, in the name of such Person by one or
more Authorized Officers of that Person.
"DISTRIBUTION" means a distribution payable to Holders of
Securities in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
3
"EVENT OF DEFAULT" in respect of the Securities means an Event
of Default (as defined in the Indenture) has occurred and is continuing in
respect of the Subordinated Debentures.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"GAMING AUTHORITY" means the Nevada Gaming Commission, the
Nevada Gaming Control Board, the Mississippi Gaming Commission, the Illinois
Gaming Board, the Michigan Gaming Control Board, the New Jersey Casino
Control Commission, the New Jersey Division of Gaming Enforcement or any
similar federal, state or local commission, agency or other regulatory body
which has, or may at any time after the time of this Declaration have,
jurisdiction over the gaming activities of the Company or a subsidiary of the
Company (or any joint venture in which the Company or a subsidiary of the
Company is a participant) or ay successor thereto.
"GAMING LAWS" means the gaming laws of a jurisdiction or
jurisdictions to which the Company or a subsidiary of the Company (or any
joint venture in which the Company or a subsidiary of the Company is a
participant) is, or may at any time after the date of this Declaration be,
subject.
"GLOBAL CERTIFICATE" has the meaning set forth in Section 9.4.
"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.
"INDENTURE" means the Indenture dated as of [______ __, ____],
as amended and supplemented by a First Supplemental Indenture, dated as of
[______ __, ____] (the "Supplemental Indenture"), among the Subordinated
Debenture Issuer and the Subordinated Debenture Trustee, and any further
indentures supplemental thereto relating to the Subordinated Debentures.
"INVESTMENT COMPANY" means an investment company (as defined
in the Investment Company Act) that is required to register as such under the
Investment Company Act.
"INVESTMENT COMPANY ACT" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"INVESTMENT COMPANY EVENT" has the meaning set forth in Annex
I hereto.
"LEGAL ACTION" has the meaning set forth in Section 3.6(g).
"MAJORITY IN LIQUIDATION AMOUNT OF THE SECURITIES" means,
except as provided in the terms of the Preferred Securities and by the Trust
Indenture Act, Holder(s) of outstanding Securities voting together as a
single class or, as the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of more than 50% of the aggregate
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions
to the date upon which the voting percentages are determined) of all
outstanding Securities of the relevant class.
4
"MINISTERIAL ACTION" has the meaning set forth in the terms of
the Securities as set forth in Annex I.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate signed on behalf of such Person by two Authorized Officers of
such Person. Any Officers' Certificate delivered with respect to compliance
with a condition or covenant provided for in this Declaration shall include:
(a) a statement that each officer signing the Certificate 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 each officer in rendering the
Certificate;
(c) a statement that each 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
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"PAYING AGENT" has the meaning specified in Section 3.8(h).
"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 SECURITIES GUARANTEE" means the guarantee
agreement, dated as of [______ __, ____], of the Sponsor in respect of the
Preferred Securities.
"PREFERRED SECURITY" has the meaning specified in Section 7.1.
"PREFERRED SECURITY BENEFICIAL OWNER" means, with respect to a
Book Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books
of a Person maintaining an account with such Clearing Agency (directly as a
Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"PREFERRED SECURITY CERTIFICATE" means a certificate
representing a Preferred Security substantially in the form of Exhibit A-1.
5
"PROPERTY TRUSTEE" means the Trustee meeting the eligibility
requirements set forth in Section 5.3.
"PROPERTY TRUSTEE ACCOUNT" has the meaning set forth in
Section 3.8(c).
"QUORUM" means a majority of the Regular Trustees or, if there
are only two Regular Trustees, both of them.
"REGULAR TRUSTEE" means any Trustee other than the Property
Trustee and the Delaware Trustee.
"RELATED PARTY" means, with respect to the Sponsor, any direct
or indirect wholly owned subsidiary of the Sponsor or any other Person that
owns, directly or indirectly, 100% of the outstanding voting securities of
the Sponsor.
"RESPONSIBLE OFFICER" means, with respect to the Property
Trustee, (a) any vice president, any assistant vice president, any assistant
secretary, any assistant treasurer, any trust officer or any other officer in
the corporate trust department of the Property Trustee customarily performing
functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject and (b) who shall
have direct responsibility for the administration of this Declaration.
"RULE 3A-7" means Rule 3a-7 under the Investment Company Act.
"SECURITIES" means the Common Securities and the Preferred
Securities.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"SECURITIES GUARANTEES" means the Preferred Securities
Guarantee and the Common Securities Guarantee.
"SPECIAL EVENT" has the meaning set forth in Annex I hereto.
"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.
"SUBORDINATED DEBENTURE ISSUER" means the Sponsor in its
capacity as issuer of the Subordinated Debentures.
6
"SUBORDINATED DEBENTURE TRUSTEE" means The Bank of New York, as
trustee under the Indenture until a successor is appointed thereunder, and
thereafter means such successor trustee.
"SUBORDINATED DEBENTURES" means the _____% Subordinated
Deferrable Interest Debentures Due ________ __, ____ to be issued by the
Subordinated Debenture Issuer under the Indenture and held by the Property
Trustee. A specimen certificate representing a Subordinated Debenture is
attached hereto as Exhibit B. The Subordinated Debentures will be subordinate
and junior in right of payment to certain other indebtedness of the
Subordinated Debenture Issuer as set forth in the Indenture.
"SUPER MAJORITY" has the meaning set forth in Section 2.6(a)(ii).
"SUPPLEMENTAL INDENTURE" has the meaning ascribed thereto in
the definition of "Indenture."
"TAX EVENT" has the meaning set forth in Annex I hereto.
"10% IN LIQUIDATION AMOUNT OF THE SECURITIES" means, except as
provided in the terms of the Preferred Securities or by the Trust Indenture
Act, Holders of outstanding Securities voting together as a single class or,
as the context may require, Holders of outstanding Preferred Securities or
Holders of outstanding Common Securities, voting separately as a class,
representing 10% of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Securities of the relevant
class.
"TREASURY REGULATIONS" means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by
the United States Treasury, as such regulations may be amended from time to
time (including corresponding provisions of succeeding regulations).
"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 may 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.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939,
as amended to the date hereof.
7
"UNDERWRITING AGREEMENT" means the underwriting agreement
among the Trust, the Subordinated Debenture Issuer and the underwriters
designated by the Regular Trustees with respect to the offer and sale of the
Preferred Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. TRUST INDENTURE ACT; APPLICATION.
(a) This Declaration is subject to the provisions of the
Trust Indenture Act that are required to be part of this Declaration and
shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee that is a
Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
SECTION 2.2. LISTS OF HOLDERS OF SECURITIES.
(a) Each of the Sponsor and the Regular Trustees on behalf of
the Trust shall provide the Property Trustee (i) within 14 days after each
record date for payment of Distributions, a list, in such form as the
Property Trustee may reasonably require, of the names and addresses of the
Holders of the Securities ("List of Holders") as of such record date,
PROVIDED that neither the Sponsor nor the Regular Trustees on behalf of the
Trust shall be obligated to provide such List of Holders at any time the List
of Holders does not differ from the most recent List of Holders given to the
Property Trustee by the Sponsor and the Regular Trustees on behalf of the
Trust, and (ii) at any other time, within 30 days of receipt by the Trust of
a written request therefor, a List of Holders as of a date no more than 14
days before such List of Holders is given to the Property Trustee. The
Property Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in Lists of Holders given to it or
which it receives in the capacity of Paying Agent (if acting in such
capacity); PROVIDED that the Property Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations
under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
8
SECTION 2.3. REPORTS BY THE PROPERTY TRUSTEE.
Within 60 days after May 15 of each year commencing May 15,
199[8][9] or at such other time as required under Section 313(b) of the Trust
Indenture Act, the Property Trustee shall provide to the Holders of the
Securities such reports as are required by Section 313 of the Trust
Indenture Act, if any, in the form and in the manner 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.
SECTION 2.4. PERIODIC REPORTS TO PROPERTY TRUSTEE.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act (if any)
and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act.
SECTION 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with
any conditions precedent, if any, provided for in this Declaration that
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 by an officer
pursuant to Section 314(c)(1) of the Trust Indenture Act may be given in the
form of an Officers' Certificate.
SECTION 2.6. EVENTS OF DEFAULT; WAIVER.
(a) The Holders of a Majority in liquidation amount of
Preferred Securities may, by vote, on behalf of the Holders of all of the
Preferred Securities, waive any past Event of Default in respect of the
Preferred Securities and its consequences, PROVIDED that, if the underlying
Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event of
Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a
majority in principal amount of the holders of the Subordinated Debentures (a
"Super Majority") to be waived under the Indenture, the Event of Default
under the Declaration may only be waived by the vote of the Holders of at
least the proportion in liquidation amount of the Preferred Securities
outstanding that the relevant Super Majority represents of the aggregate
principal amount of the Subordinated Debentures outstanding.
9
The foregoing provisions of this Section 2.6(a) shall be in
lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from
this Declaration and the Securities, as permitted by the Trust Indenture Act.
Upon such waiver, any such default shall cease to exist, and any Event of
Default with respect to the Preferred Securities arising therefrom shall be
deemed to have been cured, for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or Event of Default
with respect to the Preferred Securities or impair any right consequent
thereon. Any waiver by the Holders of the Preferred Securities of an Event
of Default with respect to the Preferred Securities shall also be deemed to
constitute a waiver by the Holders of the Common Securities of any such Event
of Default with respect to the Common Securities for all purposes of this
Declaration without any further act, vote, or consent of the Holders of the
Common Securities.
(b) The Holders of a Majority in liquidation amount of the
Common Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, PROVIDED that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Event of Default
under the Declaration as provided below in this Section 2.6(b), the Event of
Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to
be waived, except where the Holders of the Common Securities are deemed to have
waived such Event of Default under the Declaration as provided below in this
Section 2.6(b), the Event of Default under the Declaration may only be waived by
the vote of the Holders of at least the proportion in liquidation amount of the
Common Securities outstanding that the relevant Super Majority represents of the
aggregate principal amount of the Subordinated Debentures outstanding;
PROVIDED, FURTHER, that each Holder of Common Securities will be
deemed to have waived any such Event of Default and all Events of Default with
respect to the Common Securities and their consequences until all Events of
Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated, and until such Events of Default have been so cured,
waived or otherwise eliminated, the Property Trustee will be deemed to be acting
solely on behalf of the Holders of the Preferred Securities and only the Holders
of the Preferred Securities will have the right to direct the Property Trustee
in accordance with the terms of the Securities. The foregoing provisions of
this Section 2.6(b) shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B)
of the Trust Indenture Act and such Sections 316(a)(1)(A) and 316(a)(1)(B) of
the Trust Indenture Act are hereby expressly excluded from this Declaration and
the Securities, as permitted by the Trust Indenture Act. Subject to the
foregoing provisions of this Section 2.6(b), upon such waiver, any such default
shall cease to exist and any Event of Default with respect to the Common
Securities arising therefrom shall be deemed to have been
10
cured for every purpose of this Declaration, but no such waiver shall extend
to any subsequent or other default or Event of Default with respect to the
Common Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by
the Property Trustee at the direction of the Holders of the Preferred
Securities constitutes a waiver of the corresponding Event of Default under
this Declaration. The foregoing provisions of this Section 2.6(c) shall be
in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from
this Declaration and the Securities, as permitted by the Trust Indenture Act.
SECTION 2.7. EVENT OF DEFAULT; NOTICE.
(a) The Property Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Securities, notices of all defaults with
respect to the Securities actually known to a Responsible Officer of the
Property Trustee, unless such defaults have been cured before the giving of
such notice (the term "defaults" for the purposes of this Section 2.7(a)
being hereby defined to be an Event of Default as defined in the Indenture,
not including any periods of grace provided for therein and irrespective of
the giving of any notice provided therein); PROVIDED that, except for a
default in the payment of principal of (or premium, if any) or interest on
any of the Subordinated Debentures, the Property Trustee shall be protected
in withholding such notice if and so long as the board of directors, the
executive committee, or a trust committee of directors and/or Responsible
Officers of the Property Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the
Securities.
(b) The Property Trustee shall not be deemed to have knowledge
of any default except:
(i) a default under Sections 6.01(a) and 6.01(b) of the
Indenture; or
(ii) any default as to which a Responsible Officer shall
have actual knowledge or a Responsible Officer charged with the administration
of the Declaration shall have obtained written notice.
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ARTICLE III
ORGANIZATION
SECTION 3.1. NAME.
The Trust is named " Circus Finance II," as such name may be
modified from time to time by the Regular Trustees following written notice to
the Holders of the Securities. The Trust's activities may be conducted under
the name of the Trust or any other name deemed advisable by the Regular
Trustees.
SECTION 3.2. OFFICE.
The address of the principal office of the Trust is_____________
______________________________________________________________________. On
ten Business Days written notice to the Holders of the Securities, the Regular
Trustees may designate another principal office.
SECTION 3.3. PURPOSE.
The exclusive purposes and functions of the Trust are (a) to
issue and sell the Securities and use the proceeds from such sale to purchase
and hold the Subordinated Debentures and the Preferred Securities Guarantee,
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, pledge any
of its assets, or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified for United States
federal income tax purposes as a grantor trust.
SECTION 3.4. AUTHORITY.
Subject to the limitations provided in this Declaration and to
the specific duties of the Property Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. Any
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and any action taken by the
Property Trustee in accordance with its powers shall constitute the act of and
serve to bind the Trust. In dealing with the Trustees acting on behalf of the
Trust, no person shall be required to inquire into the authority of the Trustees
to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this
Declaration.
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SECTION 3.5. TITLE TO PROPERTY OF THE TRUST.
Except as provided in Section 3.8 with respect to the
Subordinated Debentures and the Property Trustee Account or as otherwise
provided in this Declaration, legal title to all assets of the Trust shall be
vested in the Trust. The Holders shall not have legal title to any part of
the assets of the Trust, but shall have an undivided beneficial interest in
the assets of the Trust.
SECTION 3.6. POWERS AND DUTIES OF THE REGULAR TRUSTEES.
The Regular Trustees shall have the exclusive power, duty 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 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, that there shall be no
interests in the Trust other than the Securities, and the issuance of Securities
shall be limited to a one-time, simultaneous issuance of both Preferred
Securities and Common Securities on the Closing Date;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission the registration
statement on Form S-3 prepared by the Sponsor, including any amendments thereto,
pertaining to the Preferred Securities;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be necessary in order
to qualify or register all or part of the Preferred Securities in any State in
which the Sponsor has determined to qualify or register such Preferred
Securities for sale;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange, Inc. or any other national securities
exchange or with The Nasdaq Stock Market for listing upon notice of issuance of
any Preferred Securities;
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto, prepared by the
Sponsor, relating to the registration of the Preferred Securities under Section
12(b) or 12(g) of the Exchange Act; and
(v) designate underwriters to be party to the
Underwriting Agreement and execute and enter into the Underwriting Agreement
providing for the sale of the Preferred Securities;
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(c) to acquire the Subordinated Debentures with the proceeds
of the sale of the Preferred Securities and the Common Securities; PROVIDED
that the Regular Trustees shall cause legal title to the Subordinated
Debentures to be held of record in the name of the Property Trustee for the
benefit of the Holders of the Preferred Securities and the Holders of the
Common Securities;
(d) to give the Sponsor and the Property Trustee prompt written
notice of the occurrence of a Special Event; PROVIDED that the Regular Trustees
shall consult with the Sponsor and the Property Trustee before taking or
refraining from taking any Ministerial Action in relation to a Special Event;
(e) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Preferred Securities and Holders of Common Securities
as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be
required of the Regular Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee
has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may
be designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of
the Trust Indenture Act to the Property Trustee, which certificate may be
executed by any Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry
out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar
and transfer agent for the Securities;
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(m) to give prompt written notice to the Holders of the
Securities of any notice received from the Subordinated Debenture Issuer of
its election to defer payments of interest on the Subordinated Debentures by
extending the interest payment period under the Indenture;
(n) 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;
(o) to take all action that may be necessary or appropriate for
the preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Preferred
Securities or to enable the Trust to effect the purposes for which the Trust was
created;
(p) to take any action, not inconsistent with this Declaration
or with applicable law, that the Regular Trustees determine in their discretion
to be necessary or desirable in carrying out the activities of the Trust as set
out in this Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an
Investment Company;
(ii) causing the Trust to be classified for United States
federal income tax purposes as a grantor trust; and
(iii) cooperating with the Subordinated Debenture Issuer
to ensure that the Subordinated Debentures will be treated as indebtedness of
the Subordinated Debenture Issuer for United States federal income tax
purposes,
PROVIDED that such action does not adversely affect the interests
of Holders; and
(q) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Regular Trustees, on behalf of
the Trust.
The Regular Trustees must exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Regular Trustees shall not take any
action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none
of the powers or the authority of the Property Trustee set forth in Section 3.8.
15
SECTION 3.7. PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES.
(a) The Trust shall not, and the Trustees (including the
Property Trustee) shall not, engage in any activity other than as required or
authorized by this Declaration. In particular, the Trust shall not and the
Trustees (including the Property Trustee) shall cause the Trust not to:
(i) invest any proceeds received by the Trust from
holding the Subordinated Debentures, but shall distribute all such proceeds to
Holders of Securities pursuant to the terms of this Declaration and of the
Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust property for other than a Trust
purpose;
(iv) make any loans or incur any indebtedness other than
loans represented by the Subordinated Debentures;
(v) possess any power or otherwise act in such a way as
to vary the Trust assets or the terms of the Securities in any way whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the Securities; or
(vii) other than as provided in this Declaration, (A)
direct the time, method and place of exercising any trust or power conferred
upon the Subordinated Debenture Trustee with respect to the Subordinated
Debentures, (B) waive any past default that is waivable under Section 6.04 of
the Indenture, (C) exercise any right to rescind or annul any declaration
that the principal of all the Subordinated Debentures shall be due and
payable, or (D) consent to any amendment or modification of the Indenture or
the Subordinated Debentures where such consent shall be required unless the
Trust shall have received an opinion of counsel to the effect that such
amendment or modification will not cause more than an insubstantial risk that
for United States federal income tax purposes the Trust will not be
classified as a grantor trust.
(b) The Trustees shall comply with any order or directive of
a Gaming Authority that the Trustees submit an application for any license,
findng of suitability or other approval pursuant to any Gaming Law and will
cooperate fully and completely in any proceeding related to such application.
SECTION 3.8. POWERS AND DUTIES OF THE PROPERTY TRUSTEE.
(a) The legal title to the Subordinated Debentures shall be
owned by and held of record in the name of the Property Trustee in trust for
the benefit of the Holders of the Securities. The right, title and interest
of the Property Trustee to the Subordinated Debentures shall vest
automatically in each Person who may hereafter be appointed as Property
Trustee in accordance with Section 5.6. Such vesting (and cessation as to the
resigning Property Trustee) of title shall be effective whether or not
conveyancing documents with regard to the Subordinated Debentures have been
executed and delivered.
16
(b) The Property Trustee shall not transfer its right, title
and interest in the Subordinated Debentures to the Regular Trustees or to the
Delaware Trustee (if the Property Trustee does not also act as Delaware
Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "Property Trustee Account") in the name of and under
the exclusive control of the Property Trustee on behalf of the Holders of the
Securities and, upon the receipt of payments of funds made in respect of the
Subordinated Debentures held by the Property Trustee, deposit such funds into
the Property Trustee Account and make payments to the Holders of the Preferred
Securities and Holders of the Common Securities from the Property Trustee
Account in accordance with Section 6.1. Funds in the Property Trustee Account
shall be held uninvested until disbursed in accordance with this Declaration.
The Property Trustee Account shall be an account that is maintained with a
banking institution the rating on whose long-term unsecured indebtedness is at
least equal to the rating assigned to the Preferred Securities by a "nationally
recognized statistical rating organization", as that term is defined for
purposes of Rule 436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Preferred Securities
and the Common Securities to the extent the Subordinated Debentures are
redeemed or mature; and
(iii) upon notice of distribution issued by the Regular
Trustees in accordance with the terms of the Securities, engage in such
ministerial activities as shall be necessary or appropriate to effect the
distribution of the Subordinated Debentures to Holders of Securities upon the
occurrence of a Special Event.
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to the
terms of the Securities.
(e) The Property Trustee shall take any Legal Action which
arises out of or in connection with an Event of Default or the Property
Trustee's duties and obligations under this Declaration or the Trust Indenture
Act.
(f) The Property Trustee shall not resign as a Trustee unless
either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders of Securities pursuant to
the terms of the Securities; or
(ii) a successor Property Trustee has been appointed and
has accepted that appointment in accordance with Section 5.6.
17
(g) The Property Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder of Subordinated
Debentures under the Indenture and, if an Event of Default occurs and is
continuing, the Property Trustee shall, for the benefit of Holders of the
Securities, enforce its rights as holder of the Subordinated Debentures
subject to the rights of the Holders pursuant to the terms of such Securities.
(h) The Property Trustee may authorize one or more Persons
(each, a "Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all Securities and
any such Paying Agent shall comply with Section 317(b) of the Trust Indenture
Act. Any Paying Agent may be removed by the Property Trustee at any time and a
successor Paying Agent or additional Paying Agents may be appointed at any time
by the Property Trustee.
(i) Subject to this Section 3.8, the Property Trustee shall have
none of the duties, liabilities, powers or the authority of the Regular Trustees
set forth in Section 3.6.
The Property Trustee must exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Property Trustee shall not take any
action that is inconsistent with the purposes and functions of the Trust set out
in Section 3.3.
SECTION 3.9. CERTAIN DUTIES AND RESPONSIBILITIES OF THE PROPERTY
TRUSTEE.
(a) 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 and no implied covenants shall be read into this Declaration
against the Property Trustee. In case an Event of Default has occurred that
has not been cured or waived pursuant to Section 2.6, the Property Trustee
shall exercise such of the rights and powers vested in it by this Declaration,
and use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) No provision of this Declaration 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 an 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
and the Property Trustee shall not be liable except for the performance of such
duties and obligations as are specifically
18
set forth in this Declaration, and no implied covenants or obligations shall
be read into this Declaration against the Property Trustee; 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; but in the case of any such
certificates or opinions that by any provision hereof 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 (but need not confirm or investigate the
accuracy of mathematical calculations or the facts stated therein);
(ii) the Property Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent in
ascertaining the pertinent facts;
(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 not less than a Majority in liquidation
amount of the 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;
(iv) no provision of this Declaration 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 it 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 or adequate indemnity against
such risk or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of the Subordinated
Debentures and the Property Trustee Account shall be to deal with such
property in a manner that is customary in the industry, subject to the
protections and limitations on liability afforded to the Property Trustee
under this Declaration, the Trust Indenture Act and Rule 3a-7;
(vi) the Property Trustee shall have no duty or
liability for or with respect to the value, genuineness, existence or
sufficiency of the Subordinated Debentures or the payment of any taxes or
assessments levied thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree in writing
with the Sponsor. Money held by the Property Trustee need not be segregated
from other funds held by it except in relation
19
to the Property Trustee Account maintained by the Property Trustee pursuant
to Section 3.8(c)(i) and except to the extent otherwise required by law; and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the Sponsor with their
respective duties under this Declaration, nor shall the Property Trustee be
liable for the default or misconduct of the Regular Trustees or the Sponsor.
SECTION 3.10. CERTAIN RIGHTS OF THE PROPERTY TRUSTEE.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall
be fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, note, other evidence of indebtedness or other paper
or document believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular
Trustees contemplated by this Declaration shall be sufficiently evidenced by a
Direction or an Officers' Certificate;
(iii) whenever in the administration of this Declaration,
the Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any 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
Officers' Certificate which, upon receipt of such request, shall be promptly
delivered by the Sponsor or the Regular Trustees;
(iv) 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
rerecording, refiling or reregistration thereof;
(v) the Property Trustee may consult with counsel or
other experts of its selection and the advice or opinion of such counsel and
experts with respect to legal matters or advice within the scope of such
experts' area of expertise 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 accordance with such advice or opinion. Such counsel may
be counsel to the Sponsor or any of its Affiliates, and may include any of
the Sponsor's or its Affiliates' employees. The Property Trustee shall have the
right at any time to seek instructions concerning the administration of this
Declaration from any court of competent jurisdiction;
20
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration at the
request or direction of any Holder, unless such Holder shall have provided to
the Property Trustee adequate security and indemnity, which would satisfy a
reasonable person in the position of the Property Trustee, against the costs,
expenses (including attorneys' fees and expenses) and liabilities that might be
incurred by it in complying with such request or direction, including such
reasonable advances as may be requested by the Property Trustee; PROVIDED that
nothing contained in this Section 3.10(a)(vi) 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;
(vii) 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, direction, consent,
order, bond, note, other evidence of indebtedness or other paper or document,
but the Property Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and 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;
(ix) any action taken by the Property Trustee or its
agents hereunder shall bind the Trust and the Holders, and the signature of the
Property Trustee or its agents alone shall be sufficient and effective to
perform any such action and no third party shall be required to inquire as to
the authority of the Property Trustee to so act or as to its compliance with any
of the terms and provisions of this Declaration, both of which shall be
conclusively evidenced by the Property Trustee's or its agent's taking such
action;
(x) whenever in the administration of this Declaration
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 of the
Securities which instructions may only be given by the Holders of the same
proportion in liquidation amount of the Securities as would be entitled to
direct the Property Trustee under the terms of the 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 protected in acting in accordance with such instructions; and
(xi) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Declaration.
21
(b) No provision of this Declaration shall be deemed to impose
any duty or obligation on the Property 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 the Property Trustee
shall be construed to be a duty.
SECTION 3.11. DELAWARE TRUSTEE.
Notwithstanding any other provision of this Declaration other
than Section 5.2, 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 Regular Trustees or the Property Trustee described in
this Declaration. Except as set forth in Section 5.2, 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 3.12. EXECUTION OF DOCUMENTS.
Unless otherwise determined by the Regular Trustees, and except
as otherwise required by the Business Trust Act, a majority of or, if there are
only two, any Regular Trustee or, if there is only one, such Regular Trustee is
authorized to execute on behalf of the Trust any documents that the Regular
Trustees have the power and authority to execute pursuant to Section 3.6;
PROVIDED that the registration statement referred to in Section 3.6(b)(i),
including any amendments thereto, shall be signed by all of the Regular
Trustees.
SECTION 3.13. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained in this Declaration and the Securities
shall be taken as the statements of the Sponsor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any part thereof.
The Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.14. DURATION OF TRUST.
The Trust, unless dissolved pursuant to the provisions of Article
VIII hereof, shall have existence for fifty-five (55) years from the Closing
Date.
SECTION 3.15. MERGERS.
(a) The Trust may not 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 corporation or other body, except as
described in Sections 3.15(b) and (c).
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(b) The Trust may, with the consent of the Regular Trustees or,
if there are more than two, a majority of the Regular Trustees and without the
consent of the Holders, the Delaware Trustee or the Property Trustee,
consolidate, amalgamate, merge with or into, or be replaced by a trust organized
as such under the laws of any State; PROVIDED that:
(i) such successor entity (the "Successor Entity")
either:
(A) expressly assumes all of the obligations of
the Trust under the Securities; or
(B) substitutes for the Securities other
securities having substantially the same terms as the Securities (the "Successor
Securities") so long as the Successor Securities rank the same as the Securities
rank with respect to Distributions and payments upon liquidation, redemption and
otherwise;
(ii) the Subordinated Debenture Issuer expressly
acknowledges a trustee of the Successor Entity that possesses the same powers
and duties as the Property Trustee as the Holder of the Subordinated
Debentures;
(iii) the Preferred Securities or any Successor Securities
are listed, or any Successor Securities will be listed upon notification of
issuance, on the New York Stock Exchange, Inc. or such other national securities
exchange or with The Nasdaq Stock Market or such other organization on which the
Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation or
replacement does not cause the Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical rating
organization;
(v) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences and privileges of
the Holders of the Securities (including any Successor Securities) in any
material respect (other than with respect to any dilution of such Holders'
interests in the Successor Entity as a result of such merger, consolidation,
amalgamation or replacement);
(vi) such Successor Entity has a purpose identical to that
of the Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of a nationally recognized
independent counsel to the Trust experienced in such matters to the effect that:
(A) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences and privileges of
the Holders of the
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Securities (including any Successor Securities) in any material respect
(other than with respect to any dilution of the Holders' interest in the
Successor Entity); and
(B) following such merger, consolidation,
amalgamation or replacement, neither the Trust nor the Successor Entity will be
required to register as an Investment Company; and
(viii) the Sponsor guarantees the obligations of such
Successor Entity under the Successor Securities at least to the extent provided
by the Preferred Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except
with the consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge with or into, or be replaced by any other entity
or permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger or replacement would
cause the Trust or Successor Entity to be classified as other than a grantor
trust for United States federal income tax purposes and any Holder of Securities
not to be treated as owning an undivided beneficial interest in the Subordinated
Debentures.
ARTICLE IV
SPONSOR
SECTION 4.1. SPONSOR'S PURCHASE OF COMMON SECURITIES.
On the Closing Date the Sponsor will purchase all of the Common
Securities issued by the Trust, in an amount equal to at least __% of the
capital of the Trust, at the same time as the Preferred Securities are sold.
SECTION 4.2. RESPONSIBILITIES OF THE SPONSOR.
In connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Preferred Securities,
including any amendments thereto;
(b) to determine the States in which to take appropriate action
to qualify or register for sale all or part of the Preferred Securities and to
do any and all such acts, other than actions which must be taken by the Trust,
and advise the Trust of actions it must take, and prepare for execution and
filing any documents to be executed and filed by the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of any such
States;
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(c) to prepare for filing by the Trust an application to the
New York Stock Exchange, Inc. or any other national securities exchange or
with The Nasdaq Stock Market for listing upon notice of issuance of any
Preferred Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) or 12(g) of the Exchange Act,
including any amendments thereto; and
(e) to negotiate the terms of the Underwriting Agreement.
SECTION 4.3. EXPENSES.
(a) The Sponsor shall be responsible for and shall pay for
all debts and obligations (other than with respect to the Securities) and all
costs and expenses of the Trust (including, but not limited to, costs and
expenses relating to the organization of the Trust, the issuance and sale of
the Preferred Securities, the fees and expenses (including reasonable counsel
fees and expenses) of the Trustees, the costs and expenses of accountants,
attorneys, statistical or bookkeeping services, expenses for printing and
engraving and computing or accounting equipment, Paying Agent(s),
registrar(s), transfer agent(s), duplication, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection
with the disposition of Trust assets).
(b) The Sponsor will pay any and all taxes (other than United
States withholding taxes attributable to the Trust or its assets) and all
liabilities, costs and expenses with respect to such taxes of the Trust.
(c) The Sponsor's obligations under this Section 4.3 shall be
for the benefit of, and shall be enforceable by, the Property Trustee and any
Person to whom any such debts, obligations, costs, expenses and taxes are owed
(a "Creditor") whether or not such Creditor has received notice hereof. The
Property Trustee and any such Creditor may enforce the Sponsor's obligations
under this Section 4.3 directly against the Sponsor and the Sponsor irrevocably
waives any right or remedy to require that the Property Trustee or any such
Creditor take any action against the Trust or any other Person before proceeding
against the Sponsor. The Sponsor agrees to execute such additional agreements
as may be necessary or desirable in order to give full effect to the provisions
of this Section 4.3.
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ARTICLE V
TRUSTEES
SECTION 5.1. NUMBER OF TRUSTEES.
The number of Trustees initially shall be five (5), and:
(a) at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the number of
Trustees; and
(b) after the issuance of any Securities, the number of
Trustees may be increased or decreased by vote of the Holders of a majority
in liquidation amount of the Common Securities voting as a class at a meeting
of the Holders of the Common Securities,
PROVIDED that, if the Property Trustee does not also act as
Delaware Trustee, the number of Trustees shall be at least three (3) and
PROVIDED that, if the Property Trustee does also act as Delaware Trustee, the
number of Trustees shall be at least two (2).
SECTION 5.2. DELAWARE TRUSTEE.
If required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware;
or
(b) 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 law, PROVIDED that, if the Property Trustee has its principal
place of business in the State of Delaware and otherwise meets the requirements
of applicable law, then the Property Trustee shall also be the Delaware Trustee
and Section 3.11 shall have no application. The Delaware Trustee may be an
Affiliate of the Property Trustee.
SECTION 5.3. PROPERTY TRUSTEE; ELIGIBILITY.
(a) There shall at all times be one Trustee which shall act as
Property Trustee which shall:
(i) not be an Affiliate of the Sponsor;
(ii) be a corporation organized and doing business under
the laws of the United States of America or any State or Territory thereof or
of the District of Columbia, or a corporation or Person permitted by the
Commission to act as an institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 50 million U.S. dollars
($50,000,000),
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and subject to supervision or examination by federal, State, Territorial or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then for the purposes
of this Section 5.3(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published; and
(iii) if the Trust is excluded from the definition of an
Investment Company solely by means of Rule 3a-7 and to the extent Rule 3a-7
requires a trustee having certain qualifications to hold title to the "eligible
assets" of the Trust, the Property Trustee shall possess those qualifications.
(b) If at any time the Property Trustee shall cease to be
eligible to so act under Section 5.3(a), the Property Trustee shall immediately
resign in the manner and with the effect set forth in Section 5.6(c).
(c) If the Property Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Property Trustee and the Holder of the Common Securities
(as if it were the obligor referred to in Section 310(b) of the Trust
Indenture Act) shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
(d) The Preferred Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of the
first provision contained in Section 310(b) of the Trust Indenture Act.
SECTION 5.4. QUALIFICATIONS OF REGULAR TRUSTEES AND DELAWARE
TRUSTEE GENERALLY.
Each Regular Trustee and the Delaware Trustee (unless the
Property Trustee also acts as Delaware 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 Authorized Officers.
SECTION 5.5. INITIAL TRUSTEES.
The initial Regular Trustees shall be:
__________________
__________________
__________________
The initial Delaware Trustee shall be:
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The Bank of New York (Delaware)
The initial Property Trustee shall be:
The Bank of New York
SECTION 5.6. APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.
(a) Subject to Section 5.6(b), Trustees may be appointed or
removed without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of
the Holders of a Majority in liquidation amount of the Common Securities
voting as a class at a meeting of the Holders of the Common Securities or by
unanimous written consent.
(b) (i) The Trustee that acts as Property Trustee shall not
be removed in accordance with Section 5.6(a) until a successor Property
Trustee has been appointed and has accepted such appointment by written
instrument executed by such successor Property Trustee and delivered to the
Regular Trustees and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not
be removed in accordance with this Section 5.6(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections 5.2
and 5.4 (a "Successor Delaware Trustee") has been appointed and has accepted
such appointment by written instrument executed by such Successor Delaware
Trustee and delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or
resignation. Any Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing signed by the Trustee and
delivered to the Sponsor and the Trust, which resignation shall take effect
upon such delivery or upon such later date as is specified therein; PROVIDED
that:
(i) no such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument executed by such
Successor Property Trustee and delivered to the Trust, the Sponsor and the
resigning Property Trustee; or
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(B) if the Trust is deemed not to be an Investment
Company solely by reason of Rule 3a-7, until the assets of the Trust have
been completely liquidated and the proceeds thereof distributed to the
Holders of the Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee has
been appointed and has accepted such appointment by instrument executed by
such Successor Delaware Trustee and delivered to the Trust, the Sponsor and
the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Property Trustee or Successor Delaware
Trustee, as the case may be, if the Property Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with this Section 5.6.
(e) If no Successor Property Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in
this Section 5.6 within 30 days after delivery of an instrument of
resignation or removal, the Property Trustee or Delaware Trustee resigning or
being removed, as applicable, may (at the expense of the Sponsor) petition
any court of competent jurisdiction for appointment of a Successor Property
Trustee or Successor Delaware Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper and prescribe, appoint
a Successor Property Trustee or Successor Delaware Trustee, as the case may
be.
SECTION 5.7. VACANCIES AMONG TRUSTEES.
If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 5.1, or if the number
of Trustees is increased pursuant to Section 5.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by the Regular Trustees
or, if there are more than two, a majority of the Regular Trustees shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 5.6.
SECTION 5.8. EFFECT OF VACANCIES.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of
a Trustee shall not operate to annul the Trust. Whenever a vacancy in the
number of Regular Trustees shall occur, until such vacancy is filled by the
appointment of a Regular Trustee in accordance with Section 5.6, the Regular
Trustees in office, regardless of their number, shall have all the powers
granted to the Regular Trustees and shall discharge all the duties imposed
upon the Regular Trustees by this Declaration.
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SECTION 5.9. MEETINGS.
If there is more than one Regular Trustee, meetings of the
Regular Trustees shall be held from time to time upon the call of any Regular
Trustee. Regular meetings of the Regular Trustees may be held at a time and
place fixed by resolution of the Regular Trustees. Notice of any in-person
meetings of the Regular Trustees shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 48 hours before such meeting. Notice of any telephonic meetings of
the Regular Trustees or any committee thereof shall be hand delivered or
otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 24 hours before such meeting. Notices shall
contain a brief statement of the time, place and anticipated purposes of the
meeting. The presence (whether in person or by telephone) of a Regular Trustee
at a meeting shall constitute a waiver of notice of such meeting except where a
Regular Trustee attends a meeting for the express purpose of objecting to the
transaction of any activity on the ground that the meeting has not been lawfully
called or convened. Unless provided otherwise in this Declaration, any action
of the Regular Trustees may be taken at a meeting by vote of a majority of the
Regular Trustees present (whether in person or by telephone) and eligible to
vote with respect to such matter, provided that a Quorum is present, or without
a meeting by the unanimous written consent of the Regular Trustees. In the
event there is only one Regular Trustee, any and all action of such Regular
Trustee shall be evidenced by a written consent of such Regular Trustee.
SECTION 5.10. DELEGATION OF POWER.
(a) Any Regular 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
3.6, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) The Regular Trustees shall have power to delegate from time
to time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Regular Trustees or otherwise as the Regular Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
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ARTICLE VI
DISTRIBUTIONS
SECTION 6.1. DISTRIBUTIONS.
Holders shall receive Distributions (as defined herein) in
accordance with the applicable terms of the relevant Holder's Securities.
Distributions shall be made on the Preferred Securities and the Common
Securities in accordance with the preferences set forth in their respective
terms. If and to the extent that the Subordinated Debenture Issuer makes a
payment of interest (including Additional Interest (as defined in the
Indenture)), premium and/or principal on the Subordinated Debentures held by
the Property Trustee (the amount of any such payment being a "Payment
Amount"), the Property Trustee shall and is directed, to the extent funds are
available for that purpose, to make a distribution (a "Distribution") of the
Payment Amount to the Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1. GENERAL PROVISIONS REGARDING SECURITIES.
(a) The Regular Trustees shall on behalf of the Trust issue
one class of preferred securities representing undivided beneficial interests
in the assets of the Trust having such terms as are set forth in Annex I (the
"Preferred Securities") and one class of common securities representing
undivided beneficial interests in the assets of the Trust having such terms
as are set forth in Annex I (the "Common Securities"). The Trust shall not
issue any securities or other interests in respect of the assets of the Trust
other than the Preferred Securities and the Common Securities.
(b) The Certificates shall be signed on behalf of the Trust by
two Regular Trustees. Each such signature shall be the manual or facsimile
signature of any present or any future Regular Trustee. In case any Regular
Trustee of the Trust who shall have signed any of the Certificates shall cease
to be such Regular Trustee before the Certificates so signed shall be delivered
by the Trust, such Certificates nevertheless may be delivered as though the
person who signed such Certificates had not ceased to be such Regular Trustee;
and any Certificate may be signed on behalf of the Trust by such persons who, at
the actual date of execution of such Certificate, shall be the Regular Trustees
of the Trust, although at the date of the execution and delivery of the
Declaration any such person was not such a Regular Trustee. Certificates shall
be printed, lithographed or engraved or may be produced in any other manner as
is reasonably acceptable to the Regular Trustees, as evidenced by their
execution thereof, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements as the Regular
Trustees may deem appropriate, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which Securities may be listed, or to conform to usage.
Upon a written
31
order of the Trust signed by one Regular Trustee, the Property Trustee shall
countersign the Preferred Security Certificate for original issue.
(c) The consideration received by the Trust for the issuance of
the Securities shall constitute a contribution to the capital of the Trust and
shall not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly issued,
fully paid and non-assessable.
(e) Every Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration.
(f) Every Person who becomes a Holder or a Preferred Security
Beneficial Owner shall be deemed to have agreed to treat the Subordinated
Debentures as indebtedness for United States federal income tax purposes and
the Preferred Securities as evidence of an indirect beneficial ownership in
the Subordinated Debentures.
ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1. DISSOLUTION OF TRUST.
(a) The Trust shall dissolve and its affairs shall be wound up:
(i) upon the bankruptcy of the Holder of the Common
Securities or the Sponsor;
(ii) upon the filing of a certificate of dissolution or
its equivalent with respect to the Holder of the Common Securities or the
Sponsor; the filing of a certificate of cancellation with respect to the Trust
or the revocation of the Holder of the Common Securities or the Sponsor's
charter and the expiration of 90 days after the date of revocation without a
reinstatement thereof;
(iii) upon the entry of a decree of judicial dissolution of
the Holder of the Common Securities, the Sponsor or the Trust;
(iv) when all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have been paid
to the Holders in accordance with the terms of the Securities;
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(v) upon the occurrence and continuation of a Special
Event pursuant to which the Trust shall have been dissolved in accordance
with the terms of the Securities and all of the Subordinated Debentures in
accordance with the terms thereof shall have been distributed to the Holders
of Securities in exchange for all of the Securities; or
(vi) before the issuance of any Securities, with the
consent of all of the Regular Trustees and the Sponsor.
(vii) upon the expiration of the term of the Trust as
provided in Section 3.14.
(b) As soon as is practicable after the occurrence of an
event referred to in Section 8.1(a), the Regular Trustees shall file a
certificate of cancellation with the Secretary of State of the State of
Delaware.
(c) The provisions of Section 3.9 and Article X shall survive
the termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1. TRANSFER OF SECURITIES.
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and in
the Securities. Any transfer or purported transfer of any Security not made in
accordance with this Declaration and these Securities shall be null and void.
(b) Subject to this Article IX, Preferred Securities shall be
freely transferable.
(c) Subject to this Article IX, (x) the Sponsor may only
transfer Common Securities to a Related Party and (y) a Related Party may only
transfer Common Securities to the Sponsor or another Related Party; PROVIDED
that any such transfer is subject to the condition precedent that the transferor
obtain the written opinion of nationally recognized independent counsel
experienced in such matters that such transfer would not cause more than an
insubstantial risk that:
(i) the Trust would no longer be classified for United
States Federal income tax purposes as a grantor trust; or
(ii) the Trust would become an Investment Company or the
transferee would become an Investment Company.
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SECTION 9.2. TRANSFER OF CERTIFICATES.
The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Regular Trustees may
require) in respect of any tax or other government charges that may be imposed
in relation to it. Upon surrender for registration of transfer of any
Certificate, the Regular Trustees shall cause one or more new Certificates to be
issued in the name of the designated transferee or transferees. Every
Certificate surrendered for registration of transfer shall be accompanied by a
written instrument of transfer in form satisfactory to the Regular Trustees duly
executed by the Holder or such Holder's attorney duly authorized in writing.
Each Certificate surrendered for registration of transfer shall be canceled by
the Regular Trustees. A transferee of a Certificate shall be entitled to the
rights and subject to the obligations of a Holder hereunder upon the receipt by
such transferee of a Certificate. By acceptance of a Certificate, each
transferee shall be deemed to have agreed to be bound by this Declaration and
the terms of the Securities represented by such Certificate.
SECTION 9.3. DEEMED SECURITY HOLDERS.
The Trustees may treat the Person in whose name any Certificate
shall be registered on the books and records of the Trust as the sole Holder of
such Certificate and of the Securities represented by such Certificate for
purposes of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
SECTION 9.4. BOOK ENTRY INTERESTS.
Unless otherwise specified in the terms of the Preferred
Securities, the Preferred Securities Certificates, on original issuance, will be
issued in the form of one or more, fully registered, global Preferred Security
Certificates (each a "Global Certificate"), to be delivered to DTC, the initial
Clearing Agency, by, or on behalf of, the Trust. Such Global Certificates shall
initially be registered on the books and records of the Trust in the name of
Cede & Co., the nominee of DTC, and no Preferred Security Beneficial Owner will
receive a definitive Preferred Security Certificate representing such Preferred
Security Beneficial Owner's interests in such Global Certificates, except as
provided in Section 9.7. Unless and until definitive, fully registered
Preferred Security Certificates (the "Definitive Preferred Security
Certificates") have been issued to the Preferred Security Beneficial Owners
pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full force
and effect;
(b) the Trust and the Trustees shall be entitled to deal with
the Clearing Agency for all purposes of this Declaration (including the payment
of Distributions on the Global Certificates and receiving approvals, votes or
consents hereunder) as the Holder of the
34
Preferred Securities and the sole holder of the Global Certificates and shall
have no obligation to the Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Declaration, the provisions of this
Section 9.4 shall control; and
(d) the rights of the Preferred Security Beneficial Owners shall
be exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Preferred Security Beneficial
Owners and the Clearing Agency and/or the Clearing Agency Participants. The
Clearing Agency will make book entry transfers among the Clearing Agency
Participants and receive and transmit payments of Distributions on the Global
Certificates to such Clearing Agency Participants.
SECTION 9.5. NOTICES TO CLEARING AGENCY.
Whenever a notice or other communication to the Preferred
Security Holders is required under this Declaration, unless and until Definitive
Preferred Security Certificates shall have been issued to the Preferred Security
Beneficial Owners pursuant to Section 9.7, the Regular Trustees shall give all
such notices and communications specified herein to be given to the Preferred
Security Holders to the Clearing Agency, and shall have no notice obligations to
the Preferred Security Beneficial Owners.
SECTION 9.6. APPOINTMENT OF SUCCESSOR CLEARING AGENCY.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities, the Regular
Trustees may, in their sole discretion, appoint a successor Clearing Agency with
respect to the Preferred Securities.
SECTION 9.7. DEFINITIVE PREFERRED SECURITY CERTIFICATES.
If:
(a) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities and a successor
Clearing Agency is not appointed within 90 days after such election pursuant to
Section 9.6; or
(b) the Regular Trustees elect after consultation with the
Sponsor to terminate the book entry system through the Clearing Agency with
respect to the Preferred Securities,
35
then:
(c) Definitive Preferred Security Certificates shall be prepared
by the Regular Trustees on behalf of the Trust with respect to the Preferred
Securities; and
(d) upon surrender of the Global Certificates by the Clearing
Agency, accompanied by registration instructions, the Regular Trustees shall
cause Definitive Preferred Security Certificates to be delivered to Preferred
Security Beneficial Owners in accordance with the instructions of the
Clearing Agency. Neither the Trustees nor the Trust shall be liable for any
delay in delivery of such instructions and each of them may conclusively rely
on and shall be protected in relying on, said instructions of the Clearing
Agency. The Definitive Preferred Security Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Regular Trustees, as evidenced by their
execution thereof, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements as the Regular
Trustees may deem appropriate, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Preferred Securities may be
listed, or to conform to usage.
SECTION 9.8. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If:
(a) any mutilated Certificate should be surrendered to the
Regular Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such
security or indemnity as may be required by them to keep each of them harmless,
then, in the absence of notice that such Certificate shall have
been acquired by a bona fide purchaser, any Regular Trustee on behalf of the
Trust shall execute and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new Certificate under
this Section 9.8, the Regular Trustees 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 Certificate issued pursuant to this
Section shall constitute conclusive evidence of an ownership interest in the
relevant Securities, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
SECTION 9.9. MANDATORY DISPOSITION OF SECURITIES PURSUANT TO
GAMING LAWS
Each Holder and beneficial owner of Preferred Securities, by
accepting or otherwise acquiring an interest in the Preferred Securities,
shall be deemed to have agreed that if the Gaming Authority of any
jurisdiction in which the Sponsor or any of its subsidiaries (or any joint
venture in which the Sponsor or a subsidiary of the Sponsor is a participant)
now or hereafter conducts or proposes to conduct gaming requires that a
person who is a Holder or beneficial owner of Preferred Securities must be
licensed, qualified or found suitable, or comply with any other requirement
under applicable Gaming Laws, such Holder or beneficial owner shall apply for
a license, qualification or a finding of suitability or comply with such
other requirement, as the case may be, within the prescribed time period. If
such Holder or beneficial owner fails to apply to be, or fails to become,
licensed or qualified, is found unsuitable or fails to comply with any other
requirement, as the case may be (a "failure of compliance"), then the Sponsor
shall have the right, at its option (i) to require such person to dispose of
its Preferred Securities or beneficial interest therein within 30 days of
receipt of notice of the Sponsor's election or such earlier date as may be
requested or prescribed by the Gaming Authority or (ii) to redeem such
Preferred Securities (which redemption may be less than 30 days following the
notice of redemption if so requested or prescribed by the Gaming Authority)
at a redemption price equal to the lesser of (A) such person's cost, (B) 100%
of the principal amount thereof, plus accrued and unpaid cash distributions
to the earlier of the redemption date and the date of any failure of
compliance, or (C) such other amount as may be required by applicable law or
by order of any Gaming Authority. The Sponsor shall notify the Trustee in
writing of any such redemption as soon as practicable. The Sponsor shall not
be responsible for any costs or expenses any such Holder or beneficial owner
may incur in connection with its application for a license, qualification or
a finding of suitability or its compliance with any other requirement of a
Gaming Authority. Immediately upon the imposition by a Gaming Authority of a
requirement that a Holder or beneficial owner of Preferred Securities dispose
of Preferred Securities, such Holder or beneficial owner shall, to the extent
required by applicable Gaming Laws, have no further right (i) to exercise,
directly or indirectly, through any trustee, nominee or any other person or
entity, any right conferred by the Preferred Securities or (ii) to receive
any cash distributions, interest, dividends or any other distributions or
payments with respect to the Preferred Securities or any remuneration in any
form with respect to the Preferred Securities from the Sponsor, the Trust or
the Trustees, except the redemption price referred to in this Section 9.9.
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ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1. LIABILITY.
(a) Except as expressly set forth in this Declaration, the
Securities Guarantees and the terms of the Securities, the Sponsor shall not
be:
(i) personally liable for the return of any portion
of the capital contributions (or any return thereon) of the Holders, which
shall be made solely from assets of the Trust; or
(ii) required to pay to the Trust or to any Holder any
deficit upon dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for all
of the debts and obligations of the Trust (other than with respect to the
Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Preferred Securities 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.
SECTION 10.2. 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 willful misconduct(or, in
the case of the Property Trustee and the Delaware Trustee, negligence or gross
negligence, respectively) 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 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
37
pertinent to the existence and amount of assets from which Distributions to
Holders of Securities might properly be paid.
SECTION 10.3. 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 (other than the duties imposed on the Property
Trustee under the Trust Indenture Act), 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 any 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
interests 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 this
Declaration or by applicable law.
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SECTION 10.4. INDEMNIFICATION AND REIMBURSEMENT.
(a) The Sponsor shall indemnify and hold harmless each
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 by reason of the creation, operation or termination of the
Trust or 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 willful misconduct (or, in
the case of the Property Trustee and the Delaware Trustee, negligence or
gross negligence, respectively) with respect to such acts or omissions.
(b) Expenses (including legal fees and expenses) incurred by
an Indemnified Person in defending any claim, demand, action, suit or
proceeding (whether such claim, demand, action, suit or proceeding arises
between the parties hereto or results from suits involving third parties)
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 10.4(a). The
indemnification set forth in this Section 10.4 shall survive the termination
of this Declaration.
(c) The Sponsor shall reimburse the Trustees upon request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustees in accordance with any provision of this Declaration (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel).
The Property Trustee shall have a lien prior to the Securities
as to all property and funds held by it hereunder for any amount owing it or
any predecessor Property Trustee pursuant to this Section 10.4, except with
respect to funds held in trust for the benefit of the Holders of particular
Securities.
The provisions of this Section shall survive the termination of
this Declaration.
SECTION 10.5. OUTSIDE BUSINESSES.
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Any Covered Person, the Sponsor, the Regular Trustees, the
Delaware Trustee and the Property 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, the Regular Trustees, the Delaware Trustee, or
the Property 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, the Regular Trustees, the Delaware Trustee and the
Property 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, the
Regular Trustees, the Delaware Trustee and the Property 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 depositary 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.
ARTICLE XI
ACCOUNTING
SECTION 11.1. FISCAL YEAR.
The fiscal year ("Fiscal Year") of the Trust shall be the
year ending on January 31, or such other year as is required by the Code.
SECTION 11.2. CERTAIN ACCOUNTING MATTERS.
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents which shall reflect, in reasonable detail, each transaction
of the Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for
United States federal income tax purposes. The books of account and the records
of the Trust shall be examined by and reported upon as of the end of each Fiscal
Year of the Trust by a firm of independent certified public accountants selected
by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared and
delivered to each of the Holders, within 90 days after the end of each Fiscal
Year of the Trust, annual financial statements of the Trust, including a balance
sheet of the Trust as of the end of such Fiscal Year, and the related statements
of income or loss.
(c) The Regular Trustees shall cause to be duly prepared and
delivered to each Holder, any annual United States federal income tax
information statement, required by
40
the Code, containing such information with regard to the Securities held by
such Holder as is required by the Code and the Treasury Regulations.
Notwithstanding any right under the Code to deliver any such statement at a
later date, the Regular Trustees shall endeavor to deliver all such
statements within 30 days after the end of each Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and
filed with the appropriate taxing authority an annual United States federal
income tax return, on a Form 1041 or such other form required by United States
federal income tax law, and any other annual income tax returns required to be
filed by the Regular Trustees on behalf of the Trust with any state or local
taxing authority.
SECTION 11.3. BANKING.
The Trust shall maintain one or more bank accounts in the name
and for the sole benefit of the Trust; PROVIDED that all payments of funds in
respect of the Subordinated Debentures held by the Property Trustee shall be
made directly to the Property Trustee Account and no other funds of the Trust
shall be deposited in the Property Trustee Account. The sole signatories for
such accounts shall be designated by the Regular Trustees; PROVIDED that the
Property Trustee shall designate the signatories for the Property Trustee
Account.
SECTION 11.4. WITHHOLDING.
The Trust and the Regular Trustees shall comply with all
withholding requirements under United States federal, state and local law. The
Trust shall request, and the Holders shall provide to the Trust, such forms or
certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably be
requested by the Trust to assist it in determining the extent of, and in
fulfilling, its withholding obligations. The Regular Trustee shall file
required forms with applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, shall remit amounts withheld
with respect to such Holder to applicable jurisdictions. To the extent that the
Trust is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Holder, the amount withheld shall
be deemed to be a distribution in the amount of the withholding to such Holder.
In the event of any claim over withholding, Holders shall be limited to an
action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made, the Trust may reduce
subsequent Distributions by the amount of such withholding.
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ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1. AMENDMENTS.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by a
written instrument approved and executed by:
(i) the Regular Trustees (or, if there are more than two
Regular Trustees, a majority of the Regular Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the Property Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware Trustee.
(b) No amendment shall be made, and any purported amendment
shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received:
(A) an Officers' Certificate from each of the Trust
and the Sponsor that such amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of the Securities); and
(B) an opinion of counsel (who may be counsel to
the Sponsor or the Trust) that such amendment is permitted by, and conforms
to, the terms of this Declaration (including the terms of the Securities);
42
(ii) to the extent the result of such amendment would be
to:
(A) cause the Trust to fail to continue to be
classified for purposes of United States federal income taxation as a grantor
trust;
(B) reduce or otherwise adversely affect the
powers of the Property Trustee in contravention of the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an
Investment Company required to be registered under the Investment Company Act.
(c) If the Trust has any Securities outstanding, any amendment
that would adversely affect the rights, privileges or preferences of any Holder
of such Securities may be effected only with such additional requirements as may
be set forth in the terms of such Securities.
(d) Section 9.1(c) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities.
(e) Article IV shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities.
(f) The rights of the holders of the Common Securities under
Article V to increase or decrease the number of, and appoint and remove,
Trustees shall not be amended without the consent of the Holders of a Majority
in liquidation amount of the Common Securities.
(g) Notwithstanding Section 12.1(c), this Declaration may be
amended without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Declaration that may be defective or inconsistent with any other provision of
this Declaration;
(iii) add to the covenants, restrictions or obligations of
the Sponsor;
(iv) in the event the Trust is deemed not to be an
Investment Company solely by reason of Rule 3a-7, conform to any change in Rule
3a-7 or written change in interpretation or application of Rule 3a-7 by any
legislative body, court, government agency or
43
regulatory authority which amendment does not have a material adverse effect
on the rights, preferences or privileges of the Holders; and
(v) cause the Trust to continue to be classified for
purposes of United States federal income taxation as a grantor trust; PROVIDED
that such amendment does not have a material adverse effect on the rights,
preferences or privileges of the Holders.
SECTION 12.2. MEETINGS OF THE HOLDERS; ACTION BY WRITTEN CONSENT.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Regular Trustees (or as provided in the terms of
the Securities) to consider and act on any matter on which Holders of such
class of Securities are entitled to act under the terms of this Declaration,
the terms of the Securities or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading. The Regular
Trustees shall call a meeting of the Holders of such class if directed to do
so by the Holders of at least 10% in liquidation amount of such class of
Securities. Such direction shall be given by delivering to the Regular
Trustees one or more calls in a writing stating that the signing Holders wish
to call a meeting and indicating the general or specific purpose for which
the meeting is to be called. Any Holders calling a meeting shall specify in
writing the Security Certificates held by the Holders exercising the right to
call a meeting and only those Securities specified shall be counted for
purposes of determining whether the required percentage set forth in the
second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of
the Securities, the following provisions shall apply to meetings of Holders
of any class of Securities:
(i) notice of any such meeting shall be given to all
the Holders of Securities having a right to vote thereat at least 7 days and
not more than 60 days before the date of such meeting. Whenever a vote,
consent or approval of Holders is permitted or required under this
Declaration or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading, such vote, consent or approval
may be given at a meeting of such Holders. Any action that may be taken at a
meeting of Holders may be taken without a meeting if a consent in writing
setting forth the action so taken is signed by Holders owning not less than
the minimum amount of Securities in liquidation amount that would be
necessary to authorize or take such action at a meeting at which all Holders
of Securities having a right to vote thereon were present and voting. Prompt
notice of the taking of action without a meeting shall be given to the
Holders of Securities entitled to vote who have not consented in writing.
The Regular Trustees may specify that any written consent submitted to
Holders for the purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the Regular Trustees;
(ii) each Holder may authorize any Person to act for it by
proxy on all matters in which such Holder is entitled to participate, including
waiving notice of any
44
meeting, or voting or participating at a meeting. No proxy shall be valid
after the expiration of 11 months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the pleasure of the
Holder executing it. Except as otherwise provided herein, all matters
relating to the giving, voting or validity of proxies shall be governed by
the General Corporation Law of the State of Delaware relating to proxies, and
judicial interpretations thereunder, as if the Trust were a Delaware
corporation and the Holders were stockholders of a Delaware corporation;
(iii) each meeting of Holders shall be conducted by the
Regular Trustees or by such other Person that the Regular Trustees may
designate; and
(iv) unless the Business Trust Act, this Declaration,
the terms of the Securities, the Trust Indenture Act or the listing rules of
any stock exchange on which the Preferred Securities are then listed or
trading otherwise provides, the Regular Trustees, in their sole discretion,
shall establish all other provisions relating to meetings of Holders,
including notice of the time, place or purpose of any meeting at which any
matter is to be voted on by any Holders, waiver of any such notice, action by
consent without a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter with respect
to the exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.1. REPRESENTATIONS AND WARRANTIES OF PROPERTY TRUSTEE.
The Trustee that acts as initial Property Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Declaration,
and each successor Property Trustee represents and warrants to the Trust and
the Sponsor at the time of the successor Property Trustee's acceptance of its
appointment as Property Trustee, that:
(a) the Property Trustee is a banking corporation or
association with trust powers, duly organized, validly existing and in good
standing under the laws of a state of the United States or of the United
States, with trust power and authority to execute and deliver, and to carry
out and perform its obligations under the terms of, the Declaration;
(b) the execution, delivery and performance by the Property
Trustee of the Declaration has been duly authorized by all necessary corporate
action on the part of the Property Trustee. The Declaration has been duly
executed and delivered by the Property Trustee, and it 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);
45
(c) the execution, delivery and performance of the Declaration
by the Property Trustee does not conflict with or constitute a breach of the
charter or by-laws of the Property Trustee; and
(d) no consent, approval or authorization of, or registration
with or notice to, any New York State or Federal banking authority is required
for the execution, delivery or performance by the Property Trustee of the
Declaration.
SECTION 13.2. REPRESENTATIONS AND WARRANTIES OF DELAWARE TRUSTEE.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee, that:
(a) the Delaware Trustee is a Delaware banking corporation with
trust powers, duly organized, validly existing and in good standing 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;
(b) the Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and the Declaration. The
Declaration under Delaware law 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' 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) no consent, approval or authorization of, or registration
with or notice to, any Delaware State or Federal banking authority is required
for the execution, delivery or performance by the Delaware Trustee of the
Declaration; and
(d) the Delaware Trustee is 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.
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ARTICLE XIV
MISCELLANEOUS
SECTION 14.1. NOTICES.
All notices provided for in this Declaration shall be in writing,
duly signed by the party giving such notice, and shall be delivered, telecopied
or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at
the Trust's mailing address set forth below (or such other address as the Trust
may give notice of to the Holders):
Circus Finance II
_____________________
_____________________
_____________________
_____________________
_____________________
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as the Delaware Trustee may give notice of to
the Holders):
The Bank of New York (Delaware)
400 White Clay Center
Route 273
Newark, Delaware 19711
Attention: Corporate Trust Department
(c) if given to the Property Trustee, at the mailing address set
forth below (or such other address as the Property Trustee may give notice of to
the Holders):
The Bank of New York
101 Barclay Street, Floor 21W
New York, New York 10286
Attention: Corporate Trust Trustee Administration
(d) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice of to the Trust):
47
Circus Circus Enterprises, Inc.
__________________________
__________________________
__________________________
Attention: Corporate Trust Trustee Administration
(e) if given to any other Holder, at the address set forth on
the books and records of the Trust.
All such notices shall be deemed to have been given when
received.
SECTION 14.2. 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 14.3. INTENTION OF THE PARTIES.
It is the intention of the parties hereto that the Trust be
classified for United States federal income tax purposes as a grantor trust.
The provisions of this Declaration shall be interpreted to further this
intention of the parties.
SECTION 14.4. HEADINGS.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 14.5. 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 so expressed.
SECTION 14.6. 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
persons or circumstances other than those to which it is held invalid, shall
not be affected thereby.
48
SECTION 14.7. 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.
IN WITNESS WHEREOF, the undersigned has caused this Declaration to be
executed as of the day and year first above written.
, as Trustee
, as Trustee
, as Trustee
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:______________________________
Name:
Title:
THE BANK OF NEW YORK,
as Property Trustee
By:______________________________
Name:
Title:
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CIRCUS CIRCUS ENTERPRISES, INC.
as Sponsor
By:______________________________
Name:
Title:
50
ANNEX I
TERMS OF _____% TRUST ORIGINATED
PREFERRED SECURITIES -SM- COMMON SECURITIES
Further to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of June __, 1998 (as amended from time to time, the
"Declaration"), the designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities and
the Common Securities are set out below (each capitalized term used but not
defined herein has the meaning set forth in the Declaration or, if not
defined in such Declaration, as defined in the Prospectus referred to below):
1. DESIGNATION AND AMOUNT.
(a) PREFERRED SECURITIES. Preferred Securities of the
Trust with an aggregate liquidation amount with respect to the assets of the
Trust of _____________________ dollars ($___________) and a liquidation
amount with respect to the assets of the Trust of $25 per preferred security,
are hereby designated for the purposes of identification only as "______%
Trust Originated Preferred Securities" ("TOPrS-SM-" or the "Preferred
Securities"). The Preferred Security Certificates evidencing the Preferred
Securities shall be substantially in the form of Exhibit A-1 to the
Declaration, with such changes and additions thereto or deletions therefrom
as may be required by ordinary usage, custom or practice or to conform to the
rules of any stock exchange on which the Preferred Securities are listed.
(b) COMMON SECURITIES. Common Securities of the Trust with
an aggregate liquidation amount with respect to the assets of the Trust of
__________________________ dollars ($___________) and a liquidation amount
with respect to the assets of the Trust of $25 per common security, are
hereby designated for the purposes of identification only as "Common
Securities" (the "Common Securities"). The Common Security Certificates
evidencing the Common Securities shall be substantially in the form of
Exhibit A-2 to the Declaration, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage, custom or practice.
2. DISTRIBUTIONS.
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(a) Distributions payable on each Security will be fixed at a
rate per annum of _____% (the "Coupon Rate") of the stated liquidation amount
of $25 per Security, such rate being the rate of interest payable on the
Subordinated Debentures to be held by the Property Trustee. Distributions in
arrears for more than one quarter will bear interest thereon compounded
quarterly at the Coupon Rate (to the extent permitted by applicable law).
The term "Distributions" as used herein includes such cash distributions and
any such interest payable unless otherwise stated. A Distribution is payable
only to the extent that payments are made in respect of the Subordinated
Debentures held by the Property Trustee and to the extent the Property
Trustee has funds available therefor in the Payment Account. The amount of
Distributions payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve 30-day months,
and for any period shorter than a full quarterly Distribution period for
which Distributions are computed, Distributions will be computed on the basis
of the actual number of days elapsed per 90-day quarter.
(b) Distributions on the Securities will be cumulative, will
accrue from the date of original issuance, and will be payable quarterly in
arrears, on [_____ __, _____ __, _____ __ and ____ __] of each year,
commencing on _____ __, ____], except as otherwise described below. The
Distribution payable on [_____ __, ____], which will be based on a period
other than a full quarter, will be in an amount of $_____ per Preferred
Security. The Subordinated Debenture Issuer has the right under the
Indenture to defer payments of interest by extending the interest payment
period from time to time on the Subordinated Debentures for a period not
exceeding twenty (20) consecutive quarters (each an "Extension Period"),
PROVIDED that no Extension Period shall last beyond the date of maturity of
the Subordinated Debentures. As a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon at the Coupon
Rate compounded quarterly during any such Extension Period. Prior to the
termination of any such Extension Period (to the extent permitted by
applicable law), the Subordinated Debenture Issuer may further extend such
Extension Period; PROVIDED that such Extension Period together with all
previous and such further extensions thereof may not exceed twenty (20)
consecutive quarters or last beyond the date of maturity of the Subordinated
Debentures. Payments of accrued Distributions will be payable to Holders as
they appear on the books and records of the Trust on the first record date
for the payment of Distributions after the end of the Extension Period. Upon
the termination of any Extension Period and the payment of all amounts then
due, the Subordinated Debenture Issuer may commence a new Extension Period,
subject to the above requirements.
(c) Distributions on the Securities will be payable to the
Holders thereof as they appear on the books and records of the Trust on the
relevant record dates. While the Preferred Securities remain in book-entry
only form, the relevant record dates shall be one Business Day prior to the
relevant payment dates which payment dates correspond to the interest payment
dates on the Subordinated Debentures. Subject to any applicable laws and
regulations and the provisions of the Declaration, each such payment in
respect of the Preferred Securities will be made as described under the
heading "Description of the Preferred Securities -- Book-Entry Only Issuance
- -- The Depository Trust Company" in the Prospectus Supplement, dated
[_____ __, ____] (the "Prospectus Supplement"), to the Prospectus, dated
[_____ __, ____]
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(the "Base Prospectus," and collectively with the Prospectus Supplement, the
"Prospectus"), that form part of the Registration Statement on Form S-3 of
the Sponsor (in its capacity as the Subordinated Debentures Issuer and the
issuer of the Preferred Securities Guarantee) and the Trust (Reg. No.
___-_____). The relevant record dates for the Common Securities shall be the
same record dates as for the Preferred Securities. If the Preferred
Securities shall not continue to remain in book-entry only form, the relevant
record dates for the Preferred Securities shall conform to the rules of any
securities exchange on which such securities are listed and, if none, shall
be selected by the Regular Trustees, which dates shall be at least one
Business Day but less than 60 Business Days before the relevant payment
dates, which payment dates correspond to the interest payment dates on the
Subordinated Debentures. Distributions payable on any Securities that are
not punctually paid on any Distribution payment date, as a result of the
Subordinated Debenture Issuer having failed to make a payment under the
Subordinated Debentures, will cease to be payable to the Person in whose name
such Securities are registered on the relevant regular record date, and such
defaulted Distribution will instead be payable to the Person in whose name
such Securities are registered on the special record date or other specified
date determined in accordance with the Indenture for the making of such
payment. If any date on which Distributions are payable on the Securities is
not a Business Day, then payment of the Distribution 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) except that, if
such Business Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date. (d) In the event
that there is any money or other property held by or for the Trust that is
not accounted for hereunder, such property shall be distributed Pro Rata (as
defined herein) among the Holders of the Securities.
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION.
In the event of any voluntary or involuntary dissolution,
winding-up or termination of the Trust, the Holders on the date of the
dissolution, winding-up or termination, as the case may be, will be entitled
to receive out of the assets of the Trust available for distribution to
Holders after satisfaction of liabilities of creditors an amount equal to the
aggregate of the liquidation amount of $25 per Security plus accrued and
unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"), unless, in connection with such dissolution,
winding-up or termination, Subordinated Debentures in an aggregate principal
amount equal to the aggregate liquidation amount of such Securities, with an
interest rate equal to the Coupon Rate of, and bearing accrued and unpaid
interest in an amount equal to the accrued and unpaid Distributions on, such
Securities, shall be distributed on a Pro Rata basis to the Holders of the
Securities in exchange for such Securities.
If, upon any such dissolution, the Liquidation Distribution can
be paid only in part because the Trust has insufficient assets available to pay
in full the aggregate
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Liquidation Distribution, then the amounts payable directly by the Trust on
the Securities shall be paid on a Pro Rata basis.
4. REDEMPTION AND DISTRIBUTION.
(a) Upon the repayment of the Subordinated Debentures in
whole or in part, whether at maturity or upon redemption, the proceeds from
such repayment shall be simultaneously applied to redeem Securities having an
aggregate liquidation amount equal to the aggregate principal amount of the
Subordinated Debentures so repaid or redeemed at a redemption price of $25
per Security plus an amount equal to accrued and unpaid Distributions thereon
at the date of the redemption, payable in cash (the "Redemption Price").
Holders will be given not less than 30 nor more than 60 days notice of such
redemption.
(b) If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the Preferred Securities will be redeemed
Pro Rata and the procedure for redeeming Preferred Securities will be as
described in Section 4(f)(ii) below.
(c) If a Tax Event or an Investment Company Event (each as
defined below, and each a "Special Event") shall occur and be continuing, the
Regular Trustees shall, except in certain limited circumstances in relation
to a Tax Event described in this Section 4(c), dissolve the Trust and, after
satisfaction of liabilities to creditors, cause Subordinated Debentures held
by the Property Trustee, having an aggregate principal amount equal to the
aggregate stated liquidation amount of, with an interest rate identical to
the Coupon Rate of, and accrued and unpaid interest equal to accrued and
unpaid Distributions on, and having the same record date for payment, as the
Securities, to be distributed to the Holders in liquidation of such Holders'
interests in the Trust on a Pro Rata basis, within 90 days following the
occurrence of such Special Event (the "90 Day Period"); PROVIDED that, as a
condition of such dissolution and distribution, the Regular Trustees shall
have received an opinion of a nationally recognized independent tax counsel
experienced in such matters (a "No Recognition Opinion"), which opinion may
rely on published revenue rulings of the Internal Revenue Service, to the
effect that the Holders will not recognize any gain or loss for United States
federal income tax purposes as a result of the dissolution of the Trust and
the distribution of Subordinated Debentures, and PROVIDED, FURTHER, that, if
at the time there is available to the Trust the opportunity to eliminate,
within the 90 Day Period, the Special Event by taking some ministerial
action, such as filing a form or making an election, or pursuing some other
similar reasonable measure that has no adverse effect on the Trust, the
Subordinated Debenture Issuer, the Sponsor or the Holders ("Ministerial
Action"), the Trust will pursue such Ministerial Action in lieu of
dissolution.
If in the event of a Tax Event (i), after receipt of a Tax
Event Opinion (as defined hereinafter) by the Regular Trustees, the
Subordinated Debenture Issuer has received an opinion (a "Redemption Tax
Opinion") from a nationally recognized independent tax counsel experienced in
such matters that, as a result of a Tax Event, there is more than an
insubstantial risk that the Subordinated Debenture Issuer would be precluded
from deducting the interest on the
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Subordinated Debentures for United States federal income tax purposes even if
the Subordinated Debentures were distributed to the Holders in liquidation of
such Holders' interests in the Trust as described in this Section 4(c), or
(ii), after receipt of a Tax Event Opinion, the Regular Trustees shall have
been informed by such tax counsel that a No Recognition Opinion cannot be
delivered to the Trust, the Subordinated Debenture Issuer shall have the
right at any time, upon not less than 30 nor more than 60 days notice, to
redeem the Subordinated Debentures in whole or in part for cash within 90
days following the occurrence of such Tax Event, and, following such
redemption, Securities with an aggregate liquidation amount equal to the
aggregate principal amount of the Subordinated Debentures so redeemed shall
be redeemed by the Trust at the Redemption Price on a Pro Rata basis;
PROVIDED that, if at the time there is available to the Trust the opportunity
to eliminate, within such 90 day period, the Tax Event by taking some
Ministerial Action, the Trust or the Subordinated Debenture Issuer will
pursue such Ministerial Action in lieu of redemption.
"Tax Event" means that the Regular Trustees shall have
received an opinion from a nationally recognized independent tax counsel
experienced in such matters (a "Tax Event Opinion") to the effect that, on or
after the date of the Prospectus Supplement, as a result of (a) 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 or (b) any amendment to, or change in,
an interpretation or application of any such laws or regulations by any
legislative body, court, governmental agency or regulatory authority, in each
case which amendment or change is enacted, promulgated, issued or announced
or which interpretation or pronouncement is issued or announced or which
action is taken, on or after the date of the Prospectus Supplement, there is
more than an insubstantial risk that (i) the Trust is, or will be within 90
days of the date thereof, subject to United States federal income tax with
respect to interest accrued or received on the Subordinated Debentures, (ii)
interest payable by the Subordinated Debenture Issuer to the Trust on the
Subordinated Debentures is not, or within 90 days of the date thereof will
not be, deductible, in whole or in part, by the Subordinated Debenture Issuer
for United States federal income tax purposes or (iii) the Trust is, or will
be within 90 days of the date thereof, subject to more than a de minimis
amount of taxes, duties or other governmental charges.
"Investment Company Event" means that the Regular Trustees
shall have received an opinion from a nationally recognized independent
counsel experienced in practice under the Investment Company Act that, as a
result of the occurrence of a change in law or regulation or a written change
in interpretation or application of law or regulation by any legislative
body, court, governmental agency or regulatory authority (a "Change in 1940
Act Law"), there is a more than an insubstantial risk that the Trust is or
will be considered an Investment Company which is required to be registered
under the Investment Company Act, which Change in 1940 Act Law becomes
effective on or after the date of the Prospectus Supplement.
On and from the date fixed by the Regular Trustees for any
distribution of Subordinated Debentures and dissolution of the Trust: (i) the
Securities will no longer be deemed to
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be outstanding and (ii) DTC (the "Depository") or its nominee (or any
successor Clearing Agency or its nominee), as the record Holder of the
Preferred Securities, will receive a registered global certificate or
certificates representing the Subordinated Debentures to be delivered upon
such distribution and (iii) any certificates representing Preferred
Securities not held by the Depository or its nominee (or any successor
Clearing Agency or its nominee) will be deemed to represent beneficial
interests in the Subordinated Debentures having an aggregate principal amount
equal to the aggregate stated liquidation amount of, with an interest rate
identical to the Coupon Rate of, and accrued and unpaid interest equal to
accrued and unpaid Distributions on such Securities until such certificates
are surrendered or presented to the Subordinated Debentures Issuer or its
agent for transfer or reissue.
(d) The Trust may not redeem fewer than all the outstanding
Securities unless all accrued and unpaid Distributions have been paid on all
Securities for all quarterly Distribution periods terminating on or before the
date of redemption.
(e) If the Subordinated Debentures are distributed to holders
of the Securities, pursuant to the terms of the Indenture the Subordinated
Debenture Issuer will use its best efforts to have the Subordinated
Debentures listed on the New York Stock Exchange, Inc. or on such other
national securities exchange or with The Nasdaq Stock Market or such other
organization as the Preferred Securities were listed immediately prior to the
distribution of the Subordinated Debentures .
(f) The following provisions shall apply to any call for
redemption of Securities or any distribution of Subordinated Debentures to
Holders:
(i) Notice of any redemption of, or notice of
distribution of Subordinated Debentures in exchange for, Securities (a
"Redemption/Distribution Notice") will be given by the Trust by mail to each
Holder of Securities to be redeemed or exchanged not fewer than 30 nor more
than 60 days before the date fixed for redemption or exchange thereof which,
in the case of a redemption, will be the date fixed for redemption of the
Subordinated Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given pursuant to
this Section 4(f)(i), a Redemption/Distribution Notice shall be deemed to be
given on the day such notice is first mailed by first-class mail, postage
prepaid, to Holders. Each Redemption/Distribution Notice shall be addressed
to each Holder at the address of such Holder appearing in the books and
records of the Trust. No defect in the Redemption/Distribution Notice or in
the mailing of either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with respect to any other
Holder.
(ii) In the event that fewer than all the outstanding
Securities are to be redeemed, the Securities to be redeemed shall be redeemed
Pro Rata from each Holder of Securities, it being understood that in respect of
Preferred Securities registered in the name of and held of record by the
Depository or its nominee (or any successor Clearing Agency or its nominee), the
distribution of the proceeds of such redemption will be made to each Clearing
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Agency Participant (or Person on whose behalf such Clearing Agency or nominee
holds such securities) by lot in accordance with the procedures applied by such
agency or nominee.
(iii) If Securities are to be redeemed and the Trust
gives a Redemption/Distribution Notice, which notice may only be issued if
the Subordinated Debentures are redeemed as set out in this Section 4 (which
notice will be irrevocable), then (A) while the Preferred Securities are in
book-entry only form, with respect to the Preferred Securities, by 12:00
noon, New York City time, on the redemption date, the Property Trustee will
deposit irrevocably with the Depository or its nominee (or successor Clearing
Agency or its nominee) immediately available funds sufficient to pay the
applicable Redemption Price with respect to the Preferred Securities and will
give the Depository irrevocable instructions and authority to pay the
Redemption Price to the Holders of the Preferred Securities; PROVIDED that
the Subordinated Debenture Issuer has deposited with the Property Trustee a
sufficient amount of cash in connection with the related redemption or
maturity of the Subordinated Debentures by 10:00 a.m., New York City time, on
the redemption date, and (B) with respect to Preferred Securities issued in
definitive form and Common Securities, the Property Trustee will pay the
relevant Redemption Price to the Holders of such Securities by check mailed
to the address of the relevant Holder appearing on the books and records of
the Trust on the redemption date; PROVIDED that the Subordinated Debenture
Issuer has deposited with the Property Trustee a sufficient amount of cash in
connection with the related redemption or maturity of the Subordinated
Debentures, prior to such mailing. If a Redemption/Distribution Notice shall
have been given and funds deposited with the Property Trustee on or before
the redemption date as required, then immediately prior to the close of
business on the redemption date Distributions will cease to accrue on the
Securities so called for redemption and all rights of Holders of such
Securities so called for redemption will cease, except the right of the
Holders of such Securities to receive the Redemption Price, but without
interest on such Redemption Price. Neither the Regular Trustees nor the Trust
shall be required to register or cause to be registered the transfer of any
Securities that have been so called for redemption. If any date fixed for
redemption of Securities is not a Business Day, then payment of the
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) except that, if such Business Day falls in the next
calendar year, such payment will be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date fixed for redemption. If payment of the Redemption Price in respect of
any Securities is improperly withheld or refused and not paid on the
redemption date either by the Property Trustee or by the Sponsor as guarantor
pursuant to the relevant Securities Guarantee, Distributions on such
Securities will continue to accrue from the original redemption date to the
actual date of payment, in which case the actual payment date will be
considered the date fixed for redemption for purposes of calculating the
Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the
Regular Trustees on behalf of the Trust to (A) in respect of the Preferred
Securities, the Depository or its nominee (or any successor Clearing Agency or
its nominee) if the Global Certificates have been issued or, if Definitive
Preferred Security Certificates have been issued, to
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the Holders thereof at their addresses appearing on the books and records of
the Trust, and (B) in respect of the Common Securities to the Holder thereof.
(v) Subject to the foregoing and applicable law
(including, without limitation, United States federal securities laws), the
Sponsor or any of its subsidiaries may at any time and from time to time
purchase outstanding Preferred Securities by tender, in the open market or by
private agreement.
5. VOTING RIGHTS - PREFERRED SECURITIES.
(a) Except as provided under Sections 5(b) and 7 and as
otherwise required by law and the Declaration, the Holders of the Preferred
Securities will have no voting rights.
(b) Subject to the requirements set forth in this paragraph,
the Holders of a Majority in liquidation amount of the Preferred Securities,
voting separately as a class, may direct 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
the Declaration, including (i) directing the time, method, place of
conducting any proceeding for any remedy available to the Subordinated
Debenture Trustee, or exercising any trust or power conferred on the
Subordinated Debenture Trustee with respect to the Subordinated Debentures,
(ii) waive any past default and its consequences that is waivable under
Section 6.04 of the Indenture, or (iii) exercise any right to rescind or
annul a declaration that the principal of all the Subordinated Debentures
shall be due and payable; PROVIDED that where a consent under the Indenture
would require the consent or act of the Holders of greater than a majority in
principal amount of Subordinated Debentures affected thereby (a "Super
Majority"), the Property Trustee may only give such consent or take such
action at the direction of the Holders of at least the proportion in
liquidation amount of the Preferred Securities outstanding which the relevant
Super Majority represents of the aggregate principal amount of the
Subordinated Debentures outstanding. The Property Trustee shall not revoke
any action previously authorized or approved by a vote of the Holders of the
Preferred Securities. Other than with respect to directing the time, method
and place of conducting any remedy available to the Property Trustee or the
Subordinated Debenture Trustee as set forth above, the Property Trustee shall
not take any action in accordance with the directions of the Holders of the
Preferred Securities under this paragraph unless the Property Trustee has
received an opinion of tax counsel to the effect that for the purposes of
United States federal income tax the Trust will not be classified as other
than a grantor trust on account of such action. If the Property Trustee
fails to enforce its rights under the Declaration, any Holder of Preferred
Securities may, to the extent permitted by applicable law, institute a legal
proceeding directly against any Person to enforce the Property Trustee's
rights under the Declaration without first instituting a legal proceeding
against the Property Trustee or any other Person. If an Event of Default
occurs that results from the failure of the Subordinated Debenture Issuer to
pay principal of or interest on the Subordinated Debentures when due, then
during the continuance of such Event of Default each Holder of Preferred
Securities may directly institute proceedings against the Subordinated
Debenture Issuer to
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obtain payment to such Holder of an amount equal to the principal or interest
so defaulted on with respect to Subordinated Debentures in a principal amount
equal to the aggregate liquidation amount of the Preferred Securities owned
by such Holder. No Holder of Preferred Securities will be entitled to
exercise directly against the Subordinated Debenture Issuer any other remedy
available to the Property Trustee, as the record holder of the Subordinated
Debentures, unless the Property Trustee first fails to exercise such remedy.
Any approval or direction of Holders of Preferred Securities
may be given at a separate meeting of Holders of Preferred Securities
convened for such purpose, at a meeting of all of the Holders of Securities
in the Trust or pursuant to written consent. The Regular Trustees will cause
a notice of any meeting at which Holders of Preferred Securities are entitled
to vote, or of any matter upon which action by written consent of such
Holders is to be taken, to be mailed to each Holder of record of Preferred
Securities. Each such notice will include a statement setting forth (i) the
date of such meeting or the date by which such action is to be taken, (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote or of such matter upon which written
consent is sought and (iii) instructions for the delivery of proxies or
consents.
No vote or consent of the Holders of the Preferred Securities
will be required for the Trust to redeem and cancel Preferred Securities or
to distribute the Subordinated Debentures in accordance with the Declaration
and the terms of the Securities.
Notwithstanding that Holders of Preferred Securities are
entitled to vote or consent under any of the circumstances described above,
any of the Preferred Securities that are owned by the Sponsor or any
Affiliate of the Sponsor shall not be entitled to vote or consent and shall,
for purposes of such vote or consent, be treated as if they were not
outstanding.
6. VOTING RIGHTS - COMMON SECURITIES.
(a) Except as provided under Sections 6(b), (c) and 7 or as
otherwise required by law and the Declaration, the Holders of the Common
Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in
accordance with Article V of the Declaration, to vote to appoint, remove or
replace any Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only after
all Events of Default with respect to the Preferred Securities have been
cured, waived, or otherwise eliminated and subject to the requirements of the
penultimate sentence of this paragraph, the Holders of a Majority in
liquidation amount of the Common Securities, voting separately as a class,
may direct 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
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Trustee under the Declaration, including (i) directing the time, method,
place of conducting any proceeding for any remedy available to the
Subordinated Debenture Trustee, or exercising any trust or power conferred on
the Subordinated Debenture Trustee with respect to the Subordinated
Debentures, (ii) waive any past default and its consequences that is waivable
under Section 6.04 of the Indenture, or (iii) exercise any right to rescind
or annul a declaration that the principal of all the Subordinated Debentures
shall be due and payable; PROVIDED that where a consent or action under the
Indenture would require the consent or act of the Holders of a Super
Majority, the Property Trustee may only give such consent or take such action
at the direction of the Holders of at least the proportion in liquidation
amount of the Common Securities outstanding which the relevant Super Majority
represents of the aggregate principal amount of the Subordinated Debentures
outstanding. Notwithstanding any vote pursuant to this Section 6(c), the
Property Trustee shall not revoke any action previously authorized or
approved by a vote of the Holders of the Preferred Securities. Other than
with respect to directing the time, method and place of conducting any remedy
available to the Property Trustee or the Subordinated Debenture Trustee as
set forth above, the Property Trustee shall not take any action in accordance
with the directions of the Holders of the Common Securities under this
paragraph unless the Property Trustee has received an opinion of tax counsel
to the effect that for the purposes of United States federal income tax the
Trust will not be classified as other than a grantor trust on account of such
action. If the Property Trustee fails to enforce its rights under the
Declaration, any Holder of Common Securities, to the extent permitted by
applicable law, may institute a legal proceeding directly against any Person
to enforce the Property Trustee's rights under the Declaration, without first
instituting a legal proceeding against the Property Trustee or any other
Person.
Any approval or direction of Holders of Common Securities may be
given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Common Securities. Each such notice will
include a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote or of
such matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities will
be required for the Trust to redeem and cancel Common Securities or to
distribute the Subordinated Debentures in accordance with the Declaration and
the terms of the Securities.
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7. AMENDMENTS TO DECLARATION AND INDENTURE.
(a) In addition to any requirements under Section 12.1 of the
Declaration, if any proposed amendment to the Declaration provides for, or
the Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than under the
circumstances described in Section 8.1 of the Declaration, then the Holders
of outstanding Securities will be entitled to vote on such amendment or
proposal (but not on any other 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 Securities, voting together as
a single class; PROVIDED that, if any amendment or proposal referred to in
clause (i) above would adversely affect only the Preferred Securities or only
the Common Securities, then only the affected 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 a Majority in liquidation amount of
such class of Securities.
(b) In the event the consent of the Property Trustee as the
holder of the Subordinated Debentures is required under the Indenture with
respect to any amendment or modification of the Indenture or the Subordinated
Debentures, the Property Trustee shall request the direction of the Holders
of the Securities with respect to such amendment or modification and shall
vote with respect to such amendment or modification as directed by a Majority
in liquidation amount of the Securities voting together as a single class;
PROVIDED that where a consent under the Indenture would require the consent
of the holders of a Super Majority, the Property Trustee may only give such
consent at the direction of the Holders of at least the proportion in
liquidation amount of the Securities which the relevant Super Majority
represents of the aggregate principal amount of the Subordinated Debentures
outstanding; PROVIDED, FURTHER, that the Property Trustee shall not take any
action in accordance with the directions of the Holders of the Securities
under this Section 7(b) unless the Property Trustee has received an opinion
of tax counsel to the effect that for the purposes of United States federal
income tax the Trust will not be classified as other than a grantor trust on
account of such action.
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8. PRO RATA.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each
Holder of Securities according to the aggregate liquidation amount of the
Securities held by the relevant Holder in relation to the aggregate
liquidation amount of all Securities outstanding unless, in relation to a
payment, an Event of Default under the Declaration in respect of the
Preferred Securities has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the
Preferred Securities pro rata according to the aggregate liquidation amount
of Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred Securities,
then to each Holder of Common Securities pro rata according to the aggregate
liquidation amount of Common Securities held by the relevant Holder relative
to the aggregate liquidation amount of all Common Securities outstanding.
9. RANKING.
The Preferred Securities rank PARI PASSU, and payment thereon
shall be made Pro Rata, with the Common Securities except that, where an
Event of Default occurs and is continuing under the Indenture in respect of
the Subordinated Debentures held by the Property Trustee, the rights of
Holders of the Common Securities to payment in respect of Distributions and
payments upon liquidation, redemption and otherwise are subordinated to the
rights to payment of the Holders of the Preferred Securities.
10. LISTING.
The Regular Trustees shall use their best efforts to cause the
Preferred Securities to be listed for quotation on the New York Stock Exchange,
Inc.
11. ACCEPTANCE OF SECURITIES GUARANTEE AND INDENTURE.
Each Holder of Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, and to the
provisions of the Indenture, including the subordination provisions of each
document.
12. NO PREEMPTIVE RIGHTS.
The Holders of the Securities shall have no preemptive rights to
subscribe for any additional securities.
I-12
13. MISCELLANEOUS.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Preferred
Securities Guarantee or the Common Securities Guarantee (as may be appropriate)
and the Indenture to a Holder without charge on written request to the Sponsor
at its principal place of business.
14. AGREEMENT OF HOLDERS AND PREFERRED SECURITY BENEFICIAL OWNERS.
Every Person who becomes a Holder or a Preferred Security
Beneficial Owner shall be deemed to have agreed to treat the Subordinated
Debentures as indebtedness for United States federal income tax purposes and
the Preferred Securities as evidence of an indirect beneficial ownership in
the Subordinated Debentures.
I-13
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT - This
Preferred Security is a Global Certificate within the meaning of the Declaration
hereinafter referred to and is registered in the name of The Depository Trust
Company (the "Depositary") or a nominee of the Depositary. This Preferred
Security is exchangeable for Preferred Securities registered in the name of a
person other than the Depositary or its nominee only in the limited
circumstances described in the Declaration and no transfer of this Preferred
Security (other than a transfer of this Preferred Security 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) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the Trust or its agent for registration of transfer, exchange or
payment, and any Preferred Security issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.]
Certificate Number: Number of Preferred Securities
CUSIP NO.
Certificate Evidencing Preferred Securities of CIRCUS FINANCE II _____%
Trust Originated Preferred Securities-SM- (liquidation amount $25 per
Preferred Security)
Circus Finance II, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that
______________ (the "Holder") is the registered owner of _______ preferred
securities of the Trust representing an undivided beneficial interest in the
assets of the Trust designated the _____% Trust Originated Preferred
Securities (liquidation amount $25 per Preferred Security) ("TOPrS-SM-" or
the "Preferred Securities"). The Preferred Securities are transferable on
the books and records of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in proper form
for transfer. 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 Trust
dated as of [_____ __, ____], as the same may be amended from time to time
(the "Declaration") including the designation of the terms of Preferred
Securities as set forth in Annex I to the Declaration. The Preferred
Securities and the Common Securities (as defined in the Declaration) issued
by the Trust pursuant to the Declaration represent undivided beneficial
interests in the assets of the
A1-1
Trust, including the Subordinated Debentures (as defined in the Declaration)
issued by Circus Circus Enterprises, Inc., a Nevada corporation ("Circus"),
to the Trust pursuant to the Indenture referred to in the Declaration. The
Holder is entitled to the benefits of the Preferred Securities Guarantee
Agreement of Circus dated as of [______ __, ____] (the "Guarantee") to the
extent provided therein. The Trust will furnish a copy of the Declaration,
the Guarantee and the Indenture to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.
The Holder of this certificate, by accepting this certificate, is
deemed to have: (i) agreed to the terms of the Indenture and the Subordinated
Debentures, including that the Subordinated Debentures are subordinate and
junior in right to payment to all Senior Indebtedness (as defined in the
Indenture) as and to the extent provided in the Indenture; (ii) agreed to the
terms of the Guarantee, including that the Guarantee is (x) subordinate and
junior in right to payment to all other liabilities of Circus, including the
Subordinated Debentures, except those made pari passu or subordinated by
their terms, (y) pari passu with the most senior preferred or preference
stock now or hereafter issued by Circus and with any guarantee now or
hereafter entered into by Circus in respect of any preferred or preference
stock of any affiliate of Circus and (z) prior to Circus common stock; and
(iii) agreed to treat the Subordinated Debentures as indebtedness for United
States federal income tax purposes and the Preferred Securities as evidence
of an indirect beneficial ownership of the Subordinated Debentures.
This certificate 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.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
A1-2
IN WITNESS WHEREOF, the undersigned Regular Trustees of the Trust
have executed this certificate for and on behalf of the Trust.
Dated: [______ __, ____]
CIRCUS FINANCE II
By:
---------------------------------
Regular Trustee
By:
---------------------------------
Regular Trustee
By:
---------------------------------
Regular Trustee
COUNTERSIGNED AND REGISTERED:
THE BANK OF NEW YORK
(New York, New York)
Transfer Agent and Registrar
By:
--------------------------------
Authorized Signatory
A1-3
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM --as tenants in common UNIF GIFT ACT ___ Custodian___
TEN ENT --as tenants by the entireties (Cust) (Minor)
JT TEN --as joint tenants with Under Uniform Gifts to Minors
right of survivorship and Act _________ (State)
not as tenants in common
Additional abbreviations may also be used though not in the above list.
_____________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFICATION NUMBER
Please print or typewrite name(s) and address(es) including postal
zip code(s), of assignee(s)
_______ of the Preferred Securities represented by this Certificate
and does hereby irrevocably appoint
A1-4
attorney to transfer such Preferred Securities on the books of the Trust.
The attorney may substitute another to act for him or her.
Date:
----------------------------
Signature:
----------------------
(Sign exactly as your name appears on the other side of this
Preferred Security Certificate)
Signature:
----------------------
(Sign exactly as your name appears on the other side of this
Preferred Security Certificate)
*IMPORTANT READ CAREFULLY!
The signature(s) to this assignment must correspond with the
name(s) as written upon the face of the certificate in every particular
without alteration, enlargement or change whatsoever. The signature(s) of
the person(s) executing this power must be guaranteed by an eligible
guarantor institution which, at the time of issuing the guarantee, is a
member of, or a participant in the medallion signature guarantee program
recognized by the Securities Transfer Association.
A1-5
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
Certificate Number: Number of Common Securities:
Certificate Evidencing Common Securities of CIRCUS FINANCE II Common
Securities (liquidation amount $25 per Common Security)
Circus Finance II, a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that ________________
(the "Holder") is the registered owner of common securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the Common Securities (liquidation amount $25 per Common Security)
(the "Common Securities"). The Common Securities are transferable on the
books and records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form for
transfer. The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended
and Restated Declaration of Trust of the Trust dated as of June __, 1998, as
the same may be amended from time to time (the "Declaration"), including the
designation of the terms of the Common Securities as set forth in Annex I to
the Declaration. Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to the
benefits of the Common Securities Guarantee to the extent provided therein.
The Sponsor will provide a copy of the Declaration, the Common Securities
Guarantee and the Indenture to the Holder without charge upon written request
to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Sponsor is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Subordinated Debentures as indebtedness and
the Common Securities as evidence of indirect beneficial ownership in the
Subordinated Debentures.
This certificate 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.
A2-1
IN WITNESS WHEREOF, the undersigned Regular Trustees of the Trust have
executed this certificate this [__ day of ______, ____.]
CIRCUS FINANCE II
By:
--------------------------------
Regular Trustee
By:
-------------------------------
Regular Trustee
By:
-------------------------------
Regular Trustee
A2-2
___________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers this Common Security Certificate unto:
(Insert assignee's name and social security or tax identification
number)
(Insert Address and zip code of assignee)
_______ of the Common Securities represented by this Certificate and
does hereby irrevocably appoint
attorney to transfer these Common Securities on the books of the Trust. The
attorney may substitute another to act for him or her.
Date:
--------------------------
Signature:
---------------------
A2-3
(Sign exactly as your name appears on the other side of this Common
Security Certificate)
A2-4
EXHIBIT B
SPECIMEN OF SUBORDINATED DEBENTURE
B-1