EXHIBIT 4.3
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INDENTURE
between
DENVER ARENA TRUST,
as Issuer Trust
and
THE BANK OF NEW YORK,
as Indenture Trustee
Dated as of July 29, 1998
DENVER ARENA TRUST
Arena Revenue Backed Notes
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions....................................................................... 1
Section 1.02. Rules of Construction............................................................. 1
ARTICLE II
THE NOTES
Section 2.01. Form.............................................................................. 2
Section 2.02. Execution, Authentication, Delivery and Dating.................................... 2
Section 2.03. Registration; Registration of Transfer and Exchange............................... 3
Section 2.04. Mutilated, Destroyed, Lost or Stolen Notes........................................ 4
Section 2.05. Persons Deemed Note Owners........................................................ 5
Section 2.06. Distribution of Principal and Interest; Defaulted Interest........................ 5
Section 2.07. Cancellation...................................................................... 6
Section 2.08. Conditions Precedent to the Authentication of the Notes........................... 6
Section 2.09. Release of Collateral............................................................. 8
Section 2.10. Book-Entry Notes.................................................................. 8
Section 2.11. Notices to Clearing Agency........................................................ 9
Section 2.12. Definitive Notes.................................................................. 9
Section 2.13. Tax Treatment.................................................................... 11
Section 2.14. Limitations on Transfer of the Notes............................................. 11
Section 2.15. CUSIP Numbers.................................................................... 11
ARTICLE III
COVENANTS
Section 3.01. Distribution of Principal and Interest........................................... 12
Section 3.02. Maintenance of Office or Agency.................................................. 12
Section 3.03. Money for Distributions to be Held in Trust...................................... 12
Section 3.04. Existence........................................................................ 14
Section 3.05. Protection of Collateral......................................................... 14
Section 3.06. Annual Opinions as to Collateral................................................. 15
Section 3.07. Performance of Obligations....................................................... 15
Section 3.08. Negative Covenants............................................................... 16
Section 3.09. Annual Statement as to Compliance................................................ 17
Section 3.10. Covenants of the Issuer Trust.................................................... 18
Section 3.11. Restricted Payments.............................................................. 18
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Section 3.12. Notice of Events of Default...................................................... 18
Section 3.13. Further Instruments and Acts..................................................... 18
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.......................................... 19
Section 4.02. Application of Trust Money....................................................... 19
Section 4.03. Repayment of Moneys Held by Paying Agent......................................... 19
ARTICLE V
REMEDIES
Section 5.01. Events of Default................................................................ 20
Section 5.02. Acceleration of Maturity; Rescission and Annulment............................... 22
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Indenture Trustee........ 22
Section 5.04. Remedies; Priorities............................................................. 25
Section 5.05. Optional Preservation of the Collateral.......................................... 26
Section 5.06. Limitation of Suits.............................................................. 26
Section 5.07. Unconditional Rights of Noteholders to Receive Principal and Interest............ 27
Section 5.08. Restoration of Rights and Remedies............................................... 27
Section 5.09. Rights and Remedies Cumulative................................................... 27
Section 5.10. Delay or Omission Not a Waiver................................................... 27
Section 5.11. Control by Noteholders........................................................... 28
Section 5.12. Waiver of Past Defaults.......................................................... 28
Section 5.13. Undertaking for Costs............................................................ 28
Section 5.14. Waiver of Stay or Extension Laws................................................. 29
Section 5.15. Action on Notes.................................................................. 29
Section 5.16. Performance and Enforcement of Certain Obligations............................... 29
Section 5.17. Environmental Site Assessment.................................................... 30
ARTICLE VI
THE INDENTURE TRUSTEE
Section 6.01. Duties of Indenture Trustee...................................................... 30
Section 6.02. Rights of Indenture Trustee...................................................... 32
Section 6.03. Individual Rights of Indenture Trustee........................................... 32
Section 6.04. Indenture Trustee's Disclaimer................................................... 32
Section 6.05. Notices of Default............................................................... 33
Section 6.06. Reports by Indenture Trustee to Holders.......................................... 33
Section 6.07. Compensation and Indemnity....................................................... 33
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Section 6.08. Replacement of Indenture Trustee................................................. 34
Section 6.09. Successor Indenture Trustee by Merger............................................ 35
Section 6.10. Appointment of Co-Indenture Trustee or Separate Indenture Trustee................ 35
Section 6.11. Eligibility; Disqualification.................................................... 36
Section 6.12. Indenture Trustee's Application for Instructions from the Issuer Trust........... 36
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. Issuer Trust to Furnish Indenture Trustee Names and Addresses of Noteholders..... 37
Section 7.02. Preservation of Information...................................................... 37
Section 7.03. Reports by Indenture Trustee..................................................... 37
Section 7.04. 144A Information.................................................................. 37
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. Collection of Money.............................................................. 38
Section 8.02. Trust Accounts; Distributions.................................................... 38
Section 8.03. General Provisions Regarding Accounts............................................ 38
Section 8.04. Servicer's Monthly Statements.................................................... 39
Section 8.05. Release of Collateral............................................................ 39
Section 8.06. Opinion of Counsel............................................................... 40
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Noteholders........................... 40
Section 9.02. Supplemental Indentures with Consent of Noteholders.............................. 41
Section 9.03. Execution of Supplemental Indentures............................................. 42
Section 9.04. Effect of Supplemental Indentures................................................ 42
Section 9.05. Reference in Notes to Supplemental Indentures.................................... 43
Section 9.06. Amendments to Trust Agreement.................................................... 43
ARTICLE X
REDEMPTION OF NOTES
Section 10.01. Mandatory Redemption............................................................ 43
Section 10.02. Redemption at the Option of the Issuer; Election to Redeem...................... 44
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Section 10.03. Notice to Indenture Trustee; Deposits Into The Collection Account............... 44
Section 10.04. Notice of Redemption by the Indenture Trustee................................... 44
Section 10.05. Notes Payable on Optional Redemption Price or Mandatory Redemption Price........ 45
ARTICLE XI
MISCELLANEOUS
Section 11.01. Compliance Certificates and Opinions, etc....................................... 45
Section 11.02. Form of Documents Delivered to Indenture Trustee................................ 46
Section 11.03. Acts of Noteholders............................................................. 47
Section 11.04. Notices, etc., to Indenture Trustee, Issuer Trust and Rating Agencies........... 47
Section 11.05. Notices to Noteholders; Waiver.................................................. 48
Section 11.06. Effect of Headings and Table of Contents........................................ 48
Section 11.07. Successors and Assigns.......................................................... 48
Section 11.08. Separability.................................................................... 49
Section 11.09. Benefits of Indenture........................................................... 49
Section 11.10. Legal Holidays.................................................................. 49
Section 11.11. Governing Law................................................................... 49
Section 11.12. Counterparts.................................................................... 49
Section 11.13. Recording of Indenture.......................................................... 49
Section 11.14. Trust Obligation................................................................ 49
Section 11.15. Inspection...................................................................... 50
EXHIBITS
EXHIBIT A - Form of Note
EXHIBIT B-1 - Form of Rule 144A Transfer Certificate
EXHIBIT B-2 - Form of Purchaser's Letter for Institutional Accredited
Investor
EXHIBIT B-3 - Form of Transfer Affidavit
EXHIBIT C - Form of Legend
SCHEDULES
SCHEDULE A - Targeted Principal Payment Schedule
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This Indenture dated as of July 29, 1998, between DENVER ARENA TRUST,
a Delaware business trust (the "Issuer Trust"), and THE BANK OF NEW YORK, a New
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York banking corporation (the "Indenture Trustee").
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RECITALS:
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The Issuer Trust has duly authorized the execution and delivery of
this Indenture to provide for the issuance of its secured Arena Revenue Backed
Notes (the "Notes") limited in principal amount and issued as in this Indenture
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provided;
All things necessary to make this Indenture a valid agreement of the
Issuer Trust in accordance with its terms have been done;
As collateral security for its obligations under this Indenture and
the Notes, the Issuer Trust has collaterally assigned to the Indenture Trustee
all of its right, title and interest in and to the Collateral pursuant to the
Security Agreement [Indenture Trustee];
The Indenture Trustee, on behalf of the Noteholders, acknowledges the
Grant in the Security Agreement [Indenture Trustee], accepts the trusts
hereunder and agrees to perform its duties required in this Indenture to the
best of its ability to the end that the interests of the Noteholders may
adequately and effectively be protected.
In consideration of the recitals and mutual covenants herein
contained, the Issuer Trust and the Indenture Trustee hereby agree as follows
for the benefit of each of them and for the equal and ratable benefit of the
holders of the Notes:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Except as otherwise specified herein or
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as the context may otherwise require, capitalized terms used in this Indenture
shall have the respective meanings set forth in Appendix A to the Sale and
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Servicing Agreement, dated as of July 29, 1998, among the Issuer Trust, Ascent
Arena Company, LLC, as Transferor and Servicer, and the Indenture Trustee.
Section 1.02. Rules of Construction. Unless the context otherwise
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requires:
(i) a term has the meaning assigned to it;
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(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles
as in effect in the United States from time to time;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural and words in the
plural include the singular; and
(v) any agreement, instrument or statute defined or referred to
herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented (as provided in such documents) and includes (in
the case of agreements or instruments) references to all attachments
thereto and instruments incorporated therein; references to a Person are
also to its permitted successors and assigns.
ARTICLE II
THE NOTES
Section 2.01. Form. The Notes shall be designated as the "Denver
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Arena Trust, Arena Revenue Backed Notes". The Notes shall be in substantially
the form set forth in Exhibit A hereto, with such appropriate insertions,
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omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution thereof. Any portion of the text of any Note may
be set forth on the reverse thereof, with an appropriate reference thereto on
the face of the Note.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods, all as determined by
the officers executing such Notes, as evidenced by their execution of such
Notes.
Each Note shall be dated the date of its authentication. The terms of
the Notes are set forth in Exhibit A hereto. The terms of each Note are part of
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the terms of this Indenture.
Section 2.02. Execution, Authentication, Delivery and Dating. The
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Notes shall be executed on behalf of the Issuer Trust by an Authorized Officer
thereof. The signature of any such Authorized Officer on the Notes may be manual
or facsimile.
Notes bearing the manual or facsimile signature of individuals who
were, at any time, Authorized Officers of the Issuer Trust shall bind the Issuer
Trust, notwithstanding that such individuals or any of them have ceased to hold
such offices prior to the authentication and delivery of such Notes or did not
hold such offices at the date of such Notes.
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Subject to the satisfaction of the conditions set forth in Section
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2.08 hereof, the Indenture Trustee shall upon receipt of an Issuer Order
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authenticate and deliver the Notes for original issue in the following principal
amount: $139,835,000. The aggregate principal amount of the Notes outstanding at
any time may not exceed such amount.
The Notes that are authenticated and delivered by the Indenture
Trustee to or upon the order of the Issuer Trust on the Closing Date shall be
dated July 29, 1998. All other Notes that are authenticated after the Closing
Date for any other purpose under the Indenture shall be dated the date of their
authentication. The Notes shall be issuable as registered Notes in the minimum
denomination of $5,000 and integral multiples of $1,000 in excess thereof.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
Section 2.03. Registration; Registration of Transfer and Exchange.
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The Issuer Trust shall cause to be kept a register (the "Note Register") in
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which, subject to such reasonable regulations as it may prescribe, the Issuer
Trust shall provide for the registration of Notes and the registration of
transfers of Notes. The Indenture Trustee initially shall be the "Note
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Registrar" for the purpose of registering Notes and transfers of Notes as herein
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provided. Upon any resignation of any Note Registrar, the Issuer Trust shall
promptly appoint a successor or, if it elects not to make such an appointment,
assume the duties of Note Registrar.
If a Person other than the Indenture Trustee is appointed by the
Issuer Trust as Note Registrar, the Issuer Trust will give the Indenture Trustee
prompt written notice of the appointment of such Note Registrar and of the
location, and any change in the location, of the Note Register, and the
Indenture Trustee shall have the right to inspect the Note Register at all
reasonable times and to obtain copies thereof, and the Indenture Trustee shall
have the right to rely upon a certificate executed on behalf of the Note
Registrar by an Executive Officer thereof as to the names and addresses of the
Noteholders and the principal amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the office
or agency of the Issuer Trust to be maintained as provided in Section 3.02
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hereof, the Issuer Trust shall execute, and the Indenture Trustee shall
authenticate and the Noteholder shall obtain from the Indenture Trustee, in the
name of the designated transferee or transferees, one or more new Notes in any
authorized denominations, of a like aggregate principal amount as such Note or
Notes.
At the option of the related Noteholder, Notes may be exchanged for
other Notes in any authorized denominations, of a like aggregate principal
amount, upon surrender of the Notes to be exchanged at the office or agency of
the Issuer Trust. Whenever any Notes
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are so surrendered for exchange, the Issuer Trust shall execute, and the
Indenture Trustee shall authenticate and the Noteholder shall obtain from the
Indenture Trustee, the Notes which such Noteholder is entitled to receive.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Issuer Trust, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee duly executed by, the
related Noteholder or such Noteholder's attorney duly authorized in writing.
No service charge shall be made to a Noteholder for any registration
of transfer or exchange of Notes, but the Issuer Trust may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 9.05 hereof not involving any transfer.
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The preceding provisions of this Section 2.03 notwithstanding, the
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Issuer Trust shall not be required to make, and the Note Registrar need not
register, transfers or exchanges of Notes selected for redemption or of any Note
for a period of 15 days preceding the due date for any payment with respect to
such Note.
Section 2.04. Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
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mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Indenture Trustee such security or
indemnity as may be required by it to hold the Issuer Trust and the Indenture
Trustee harmless, then, in the absence of notice to the Issuer Trust, the Note
Registrar or the Indenture Trustee that such Note has been acquired by a bona
fide purchaser, an Authorized Officer of the Issuer Trust shall execute, and
upon its request the Indenture Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a
replacement Note; provided, however, that if any such destroyed, lost or stolen
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Note, but not a mutilated Note, shall have become or within seven days shall be
due and payable, or shall have been called for redemption, instead of issuing a
replacement Note, the Issuer Trust may pay such destroyed, lost or stolen Note
when so due or payable or upon the Redemption Date without surrender thereof.
If, after the delivery of such replacement Note or payment of a destroyed, lost
or stolen Note pursuant to the proviso to the preceding sentence, a bona fide
purchaser of the original Note in lieu of which such replacement Note was issued
presents for payment such original Note, the Issuer Trust and the Indenture
Trustee shall be entitled to recover such replacement Note (or such payment)
from the Person to which it was delivered or any Person taking such replacement
Note from such Person to which such replacement Note was delivered or any
assignee of such Person, except a bona fide purchaser, and shall be entitled to
recover upon the security or indemnity provided
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therefor to the extent of any loss, damage, cost or expense incurred by the
Issuer Trust or the Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section 2.04, the
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Issuer Trust may require the payment by the Holder of such Note of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the fees and
expenses of the Indenture Trustee) connected therewith.
Every replacement Note issued pursuant to this Section 2.04 in
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replacement of any mutilated, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the Issuer Trust, whether or not
the mutilated, destroyed, lost or stolen Note shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section 2.04 are exclusive and shall preclude
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(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.05. Persons Deemed Note Owners. Prior to due presentment
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for registration of transfer of any Note, the Issuer Trust, the Indenture
Trustee and any agent of the Issuer Trust or the Indenture Trustee may treat the
Registered Holder as the Note Owner for the purpose of receiving payments of
principal and interest, if any, on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and none of the Issuer Trust,
the Indenture Trustee or any agent of the Issuer Trust or the Indenture Trustee
shall be affected by notice to the contrary.
Section 2.06. Distribution of Principal and Interest; Defaulted
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Interest . (a) The Notes shall accrue interest at the Note Interest Rate, and
such interest shall be payable on each Distribution Date as specified in the
form of the Notes set forth in Exhibit A hereto, subject to Section 3.01 hereof.
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Each installment of interest or principal, if any, payable on any Note that is
punctually paid or duly provided for by the Issuer Trust on the applicable
Distribution Date shall be paid (i) with respect to Definitive Notes, to the
Person in the name of which such Note (or one or more Predecessor Notes) is
registered on the Record Date by check mailed first-class postage prepaid to
such Person's address as it appears on the Note Register on such Record Date, or
(ii) with respect to Book-Entry Notes, by wire transfer in immediately available
funds to the account designated by the nominee (initially, Cede & Co.) of the
Clearing Agency, except for the final installment of principal payable with
respect to such Note on a Distribution Date or on the Rated Final Maturity Date
(and except for the Optional Redemption Price or the Mandatory Redemption Price
for any Note called for redemption pursuant to Section 10.01 or Section 10.02
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hereof), which shall be payable as provided in Section 2.06(b) below. The funds
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represented by any such installment returned undelivered shall be held in
accordance with Section 3.03 hereof.
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(b) The Targeted Principal Distribution Amount shall be payable in
accordance with the Targeted Principal Payment Schedule attached hereto as
Schedule A. Notwithstanding the foregoing, the entire unpaid principal amount of
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the Notes shall be due
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and payable, if not previously paid, on the earlier of (i) the Rated Final
Maturity Date, (ii) the Optional Redemption Date, (iii) the Mandatory Redemption
Date, or (iv) the date on which an Event of Default shall have occurred and be
continuing, if the Indenture Trustee or the Majority Noteholders shall have
declared the Notes to be immediately due and payable in the manner provided in
Section 5.02 hereof.
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All principal payments on the Notes shall be made pro rata to the
Noteholders. The Indenture Trustee shall notify the Person in the name of which
a Note is registered at the close of business on the Record Date preceding the
Distribution Date on which the Issuer Trust expects that the final installment
of principal of and interest on such Note will be paid. Such notice shall be
mailed or transmitted by facsimile prior to such final Distribution Date and
shall specify that such final installment will be payable only upon presentation
and surrender of such Note and shall specify the place where such Note may be
presented and surrendered for payment of such installment. Notices in connection
with redemptions of Notes shall be mailed to Noteholders as provided in Section
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10.02 hereof.
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Section 2.07. Cancellation. All Notes surrendered for payment,
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registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall promptly be canceled by the Indenture Trustee. The Issuer Trust may at
any time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which Notes the Issuer Trust may have
acquired in any manner whatsoever, and all Notes so delivered shall promptly be
canceled by the Indenture Trustee. No Notes shall be authenticated in lieu of or
in exchange for any Notes canceled as provided in this Section 2.07, except as
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expressly permitted by this Indenture. All canceled Notes may be held or
disposed of by the Indenture Trustee in accordance with its standard retention
or disposal policy as in effect at the time unless the Issuer Trust shall direct
by an Issuer Order that they be returned to it; provided, however, that such
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Issuer Order is timely and the Notes have not been previously disposed of by the
Indenture Trustee.
Section 2.08. Conditions Precedent to the Authentication of the
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Notes. The Notes may be authenticated by the Indenture Trustee upon receipt by
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the Indenture Trustee of the following:
(a) An Issuer Order authorizing the execution and authentication of
such Notes from the Issuer Trust.
(b) All of the items of Collateral specified in Section 2.04(a) of
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the Sale and Servicing Agreement which shall be delivered to the Indenture
Trustee or its designee.
(c) An executed counterpart of the Trust Agreement.
(d) Opinions of Counsel addressed to the Indenture Trustee to the
effect that:
(i) all conditions precedent provided for in this Indenture
relating to the authentication of the Notes have been complied with;
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(ii) the Issuer Trust has power and authority to execute,
deliver and perform its obligations under each Basic Document to which
it is a party and each such document is enforceable against the Owner
Trustee in accordance with its terms;
(iii) the Issuer Trust has been duly formed, is validly existing
as a business trust under the laws of the State of Delaware, 12 Del.
C. Section 3801 et seq., and has power, authority and legal right to
execute and deliver this Indenture and the Sale and Servicing
Agreement;
(iv) assuming due authorization, execution and delivery hereof
by the Indenture Trustee, the Indenture is the valid, legal and
binding obligation of the Issuer Trust, enforceable in accordance with
its terms, subject to bankruptcy, insolvency, reorganization,
arrangement, moratorium, fraudulent or preferential conveyance and
other similar laws of general application affecting the rights of
creditors generally and to general principles of equity (regardless of
whether such enforcement is considered in a Proceeding in equity or at
law);
(v) the Notes, when executed and authenticated as provided
herein and delivered against payment therefor, will be the valid,
legal and binding obligations of the Issuer Trust pursuant to the
terms of this Indenture, entitled to the benefits of this Indenture,
and will be enforceable in accordance with their terms, subject to
bankruptcy, insolvency, reorganization, arrangement, moratorium,
fraudulent or preferential conveyance and other similar laws of
general application affecting the rights of creditors generally and to
general principles of equity (regardless of whether such enforcement
is considered in a Proceeding in equity or at law);
(vi) the Trust Agreement authorizes the Issuer Trust to Grant
the Collateral to the Indenture Trustee as security for the Notes;
(vii) no authorization, approval or consent of any governmental
body having jurisdiction in the premises which has not been obtained
by the Issuer Trust is required to be obtained by the Issuer Trust for
the valid issuance and delivery of the Notes, except that no opinion
need be expressed with respect to any such authorizations, approvals
or consents as may be required under any state securities or "blue
sky" laws; and
(viii) any other matters as the Indenture Trustee may reasonably
request.
(e) An Officer's Certificate (which need not comply with the
requirements of Section 11.01 hereof) stating that:
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(i) the Issuer Trust is not in Default under this Indenture
and the issuance of the Notes applied for will not result in any
breach of any of the
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terms, conditions or provisions of, or constitute a default under, the
Trust Agreement, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Issuer Trust is a party or by
which it is bound, or any order of any court or administrative agency
entered in any Proceeding to which the Issuer Trust is a party or by
which it may be bound or to which it may be subject, and that all
conditions precedent provided in this Indenture relating to the
authentication and delivery of the Notes applied for have been
complied with;
(ii) the Issuer Trust has Granted to the Indenture Trustee all
of its right, title and interest in and to the Collateral, and has
delivered or caused the same to be delivered to the Indenture Trustee;
(iii) attached thereto are true and correct copies of letters
signed by the Rating Agency confirming that the Notes have been rated
"A" by Fitch; and
(iv) all conditions precedent provided for in this Indenture
relating to the authentication of the Notes have been complied with.
Section 2.09. Release of Collateral. Except as otherwise provided
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in Section 11.01 hereof and Section 2.06(c) of the Sale and Servicing Agreement,
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the Indenture Trustee shall release property from the lien of this Indenture
only upon receipt of an Issuer Request accompanied by an Officer's Certificate
and an Opinion of Counsel stating that such release would not adversely affect
the rights of the Noteholders. Written notice of such release of Collateral
shall be provided to the Rating Agency.
Section 2.10. Book-Entry Notes. The Notes, when authorized by an
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Issuer Order, will be issued in book-entry form (the "Book-Entry Notes"), to be
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delivered to The Depository Trust Company, the initial Clearing Agency, by or on
behalf of the Issuer Trust. The Book-Entry Notes shall be registered initially
on the Note Register in the name of Cede & Co., the nominee of the Clearing
Agency, and no Note Owner will receive a definitive Note representing such Note
Owner's interest in such Note, except as provided in Section 2.12 hereof.
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Unless and until Definitive Notes have been issued to such Note Owners pursuant
to Section 2.12 hereof:
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(i) the provisions of this Section 2.10 shall be in full force and
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effect with respect to such Notes;
(ii) the Note Registrar and the Indenture Trustee shall be entitled
to deal with the Clearing Agency for all purposes of this Indenture
(including the payment of principal of and interest on the Notes and the
giving of instructions or directions hereunder) as the sole Holder of the
Notes, and shall have no obligation to the Note Owners;
(iii) to the extent that the provisions of this Section 2.10 conflict
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with any other provisions of this Indenture, the provisions of this Section
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2.10 shall control;
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(iv) the rights of Note Owners shall be exercised only through the
Clearing Agency and shall be limited to those established by law and
agreements between such Note Owners and the Clearing Agency and/or the
Clearing Agency Participants pursuant to the Note Depository Agreement.
Unless and until Definitive Notes are issued pursuant to Section 2.12
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hereof, the initial Clearing Agency will make book-entry transfers among
the Clearing Agency Participants and receive and transmit payments of
principal of and interest on the Notes to such Clearing Agency
Participants; and
(v) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Noteholders evidencing a specified
percentage of the Voting Interests of the Outstanding Notes, the Clearing
Agency shall be deemed to represent such percentage only to the extent that
it has received instructions to such effect from Note Owners and/or
Clearing Agency Participants owning or representing, respectively, such
required percentage of the beneficial interest in the Notes and has
delivered such instructions to the Indenture Trustee.
Section 2.11. Notices to Clearing Agency. Whenever a notice or
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other communication to the Noteholders is required under this Indenture, unless
and until Definitive Notes shall have been issued to such Note Owners pursuant
to Section 2.12 hereof, the Indenture Trustee shall give all such notices and
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communications to the Clearing Agency and shall have no obligation to such Note
Owners.
Section 2.12. Definitive Notes. With respect to the Book-Entry
----------------
Notes, if (i) the Issuer Trust advises the Indenture Trustee in writing that the
Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to such Book-Entry Notes and the Issuer Trust is
unable to locate a qualified successor, (ii) the Issuer Trust advises the
Indenture Trustee in writing that it elects to terminate the book-entry system
through the Clearing Agency or (iii) Note Owners representing beneficial
interests aggregating at least a majority of the Voting Interests of the
Outstanding Book-Entry Notes advise the Clearing Agency in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interests of such Note Owners, then the Clearing Agency shall notify
all Note Owners and the Indenture Trustee of the occurrence of such event and of
the availability of Notes registered in the name of the Note Owners (the
"Definitive Notes") to Note Owners requesting the same. Upon surrender to the
-----------------
Indenture Trustee of the printed Notes representing the Book-Entry Notes by the
Clearing Agency, accompanied by registration instructions, the Issuer Trust
shall execute and the Indenture Trustee shall authenticate the Definitive Notes
in accordance with the instructions of the Clearing Agency. None of the Issuer
Trust, the Note Registrar or the Indenture Trustee 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, such instructions. Upon the issuance of
Definitive Notes to such Note Owners, the Indenture Trustee shall recognize such
Note Owners as Noteholders.
(b) Notwithstanding the foregoing, Note Owners may transfer their
Book-Entry Notes, to transferees who will hold such Notes as Definitive Notes
and (ii) Noteholders
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may transfer their Definitive Notes to transferees who will hold such Notes as
Book-Entry Notes, if the conditions set forth in this Section 2.12 are
------------
satisfied.
Any and all transfers from a Note Owner of a Book-Entry Note to a
transferee wishing to take delivery in the form of a Definitive Note will
require the transferee to take delivery subject to the restrictions on the
transfer of such Definitive Note described in the legend set forth on the face
of the such Definitive Note substantially in the form of Exhibit C attached
---------
hereto (the "Legend"), and such transferee agrees that it will transfer such a
------
Definitive Note only as provided therein and herein. No such transfer shall be
made and the Indenture Trustee shall not register any such transfer unless such
transfer is made in accordance with this Section 2.12(b) and Section 2.14.
--------------- ------------
Upon acceptance for exchange or transfer of a beneficial interest in a
Book-Entry Note for a Definitive Note as provided herein, the Indenture Trustee
shall endorse on (or cause the endorsement of) the schedule affixed to the
related Book-Entry Note (or on a continuation of such schedule affixed to the
such Book-Entry Note and made a part thereof) an appropriate notation evidencing
the date of such exchange or transfer. Unless determined otherwise by the
Indenture Trustee in accordance with applicable law, a Definitive Note issued
upon transfer of or exchange for a beneficial interest in a Book-Entry Note
shall bear the Legend.
If a Holder of a Definitive Note wishes at any time to transfer such
Definitive Note to a Person who wishes to take delivery thereof in the form of a
beneficial interest in a Book-Entry Note, such transfer may be effected only in
accordance with the applicable procedures of the Depository Institution, and in
accordance with this Section 2.12(b) and Section 2.14 hereof. Upon receipt by
--------------- ------------
the Indenture Trustee at the Corporate Trust Office of (1) the Definitive Note
to be transferred with an assignment and transfer, (2) written instructions
given in accordance with the applicable procedures from a participant directing
the Indenture Trustee to credit or cause to be credited to another specified
participant's account a beneficial interest in the Book-Entry Note, in an amount
equal to the Principal Balance of such Definitive Note to be so transferred, (3)
a written order given in accordance with the applicable procedures containing
information regarding the account of the participant to be credited with such
beneficial interest, and (4) transfer documentation received for a "Qualified
Institutional Buyer" pursuant to Section 2.14, the Indenture Trustee shall (i)
------------
cancel such Definitive Note, (ii) execute and deliver a new Note for the
Principal Balance of the Definitive Note so canceled, registered in the name of
Cede & Co. (or such other nominee of the Clearing Agency), and (iii) shall
instruct the Depository Institution to increase the Principal Balance of the
Book-Entry Note by the Principal Balance of the Definitive Note so canceled, and
to credit or cause to be credited to the account of the Person specified in such
instructions a corresponding Principal Balance of the Book-Entry Note.
Under no circumstances may an institutional "accredited investor"
under Regulation D of the Securities Act take delivery in the form of a
beneficial interest in a Book-Entry Note if such purchaser is not a "qualified
institutional buyer" as defined under Rule 144A under the Securities Act.
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An exchange of a beneficial interest in the Book-Entry Note for one or
more Definitive Notes, an exchange of one or more Definitive Notes for a
beneficial interest in the Book-Entry Note and an exchange of one or more
Definitive Notes for one or more other Definitive Notes (in each case, whether
or not such exchange is made in anticipation of subsequent transfer, and in the
case of the Book-Entry Note, so long as the Book-Entry Note remains outstanding
and is held by or on behalf of the Depository Institution), may be made only in
accordance with this Section 2.12(b) and Section 2.14 and in accordance with the
--------------- ------------
rules of the Depository Institution.
Section 2.13. Tax Treatment. The Issuer Trust has entered into
-------------
this Indenture, and the Notes will be issued, with the intention that for all
purposes, including federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
Trust secured by the Collateral. The Issuer Trust, by entering into this
Indenture, and each Noteholder, by its acceptance of a Note (and each Note Owner
by its acceptance of an interest in the applicable Book-Entry Note), agree to
treat the Notes for all purposes, including federal, state and local income,
single business and franchise tax purposes, as indebtedness of the Issuer Trust.
Section 2.14. Limitations on Transfer of the Notes. The Notes have
------------------------------------
not been and will not be registered under the Securities Act or any state
securities law and will not be listed on any exchange. No transfer of a
Definitive Note or exchange of a Definitive Note for a beneficial interest in a
Book-Entry Note (or vice versa) may be made unless such transfer is made
pursuant to an effective registration statement under the Securities Act and any
applicable state securities laws or is exempt from the registration requirements
under the Securities Act and such state securities laws. In the event that a
transfer of a Definitive Note, or transfer of a beneficial interest in a Book-
Entry Note to a transferee who wishes to take delivery thereof in the form of a
Definitive Note, is to be made in reliance upon an exemption from the Securities
Act and state securities laws, in order to assure compliance with the Securities
Act and such laws, the prospective transferee shall (A) in the event that the
transfer is made in reliance upon Rule 144A under the Securities Act, deliver a
certification substantially in the form of Exhibit B-3 hereto and cause the
-----------
transferring Noteholder to deliver a certification substantially in the form of
Exhibit B-1 hereto, or (B) in the event that the transfer is made to an
-----------
institutional "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act that is not a "qualified
institutional buyer," deliver a certification substantially in the form of
Exhibit B-2 hereto.
-----------
Section 2.15. CUSIP Numbers. The Issuer Trust in issuing the Notes
--------------
may use "CUSIP" numbers (if then generally in use), and, if so, the Indenture
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
the Noteholders; provided that any such notice may state that no representation
--------
is made as to the correctness of such numbers either as printed on the Notes or
as contained in any notice of a redemption and that reliance may be placed only
on the other identification numbers printed on the Notes, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Issuer Trust will promptly notify the Indenture Trustee of any change in the
"CUSIP" numbers.
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ARTICLE III
COVENANTS
Section 3.01. Distribution of Principal and Interest. The Issuer
--------------------------------------
Trust will duly and punctually pay (or cause to be paid) the principal of and
interest on the Notes in accordance with the terms of the Notes, the Sale and
Servicing Agreement and this Indenture. Without limiting the foregoing, subject
to and in accordance with Section 5.01(c) of the Sale and Servicing Agreement,
---------------
the Issuer Trust will cause to be distributed all amounts on deposit in the
Collection Account on each Distribution Date deposited therein pursuant to the
Sale and Servicing Agreement for the benefit of the Noteholders. Amounts
properly withheld under the Code by any Person from a payment to any Noteholder
of interest and/or principal shall be considered as having been paid by the
Issuer Trust to such Noteholder for all purposes of this Indenture. The Notes
shall be non-recourse obligations of the Issuer Trust and shall be limited in
right of payment to amounts available from the Collateral, as provided in this
Indenture. The Issuer Trust shall not otherwise be liable for payments on the
Notes. If any other provision of this Indenture shall be deemed to conflict
with the provisions of this Section 3.01, the provisions of this Section 3.01
------------ ------------
shall control.
Section 3.02. Maintenance of Office or Agency. The Issuer Trust will
-------------------------------
maintain in the Borough of Manhattan in The City of New York an office or agency
where Notes may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Issuer Trust in respect of the Notes
and this Indenture may be served. The Issuer Trust hereby initially appoints the
Indenture Trustee to serve as its agent for the foregoing purposes and to serve
as Paying Agent with respect to the Notes. The Issuer Trust will give prompt
written notice to the Indenture Trustee of the location, and of any change in
the location, of any such office or agency. If at any time the Issuer Trust
shall fail to maintain any such office or agency or shall fail to furnish the
Indenture Trustee with the address thereof, such surrenders, notices and demands
may be made or served at the Corporate Trust Office, and the Issuer Trust hereby
appoints the Indenture Trustee as its agent to receive all such surrenders,
notices and demands.
Section 3.03. Money for Distributions to be Held in Trust. All
-------------------------------------------
payments of amounts due and payable with respect to any Notes that are to be
made from amounts withdrawn from the Collection Account pursuant to Section
-------
5.01(c) of the Sale and Servicing Agreement shall be made on behalf of the
-------
Issuer Trust by the Indenture Trustee, in its capacity as Paying Agent, and no
amounts so withdrawn from the Collection Account for payments of Notes shall be
paid over to the Issuer Trust except as provided in this Section 3.03.
------------
On or before the Business Day preceding each Distribution Date and the
Redemption Date, the Paying Agent shall deposit or cause to be deposited in the
Collection Account an aggregate sum sufficient to pay the amounts due on such
Distribution Date or the Redemption Date under the Notes, such sum to be held in
trust for the benefit of the Persons entitled thereto, and (unless the Paying
Agent is the Indenture Trustee) shall promptly notify the Indenture Trustee of
its action or failure so to act.
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Any successor or additional Paying Agent shall be appointed by an
Issuer Order with written notice thereof to the Indenture Trustee. Any Paying
Agent appointed by the Issuer Trust shall be a Person which would be eligible to
be Indenture Trustee hereunder as provided in Section 6.11 hereof and will be,
------------
at the time of such appointment, a Depository Institution.
The Issuer Trust will cause each Paying Agent to execute and deliver
to the Indenture Trustee an instrument in which such Paying Agent shall agree
with the Indenture Trustee (and if the Indenture Trustee acts as Paying Agent,
it hereby so agrees), subject to the provisions of this Section, that such
Paying Agent will:
(i) hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and pay such sums to such Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by the Issuer
Trust (or any other obligor upon the Notes) of which it has actual
knowledge in the making of any payment required to be made with respect to
the Notes;
(iii) at any time during the continuance of any such default, upon
the written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of Notes if
at any time it ceases to meet the standards required to be met by a Paying
Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes of any applicable
withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith; provided, however, that
-------- -------
with respect to withholding and reporting requirements applicable to
original issue discount (if any) on the Notes, the Issuer Trust shall have
first provided the calculations pertaining thereto.
The Issuer Trust may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds or
abandoned property, any money held by the Indenture Trustee or any Paying Agent
in trust for the
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payment of any amount due with respect to any Note and remaining unclaimed for
two years after such amount has become due and payable shall be discharged from
such trust and be paid to the Issuer Trust, and the related Noteholder shall
thereafter, as an unsecured general creditor, look only to the Issuer Trust for
payment thereof (but only to the extent of the amounts so paid to the Issuer
Trust), and all liability of the Indenture Trustee or such Paying Agent with
respect to such trust money shall thereupon cease; provided, however, that the
-------- -------
Indenture Trustee or such Paying Agent, before being required to make any such
repayment, shall at the expense of the Issuer Trust cause to be published, once
in a newspaper of general circulation in The City of New York customarily
published in the English language on each Business Day, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Issuer Trust. The Indenture
Trustee shall also adopt and employ, at the expense of the Issuer Trust, any
other reasonable means of notification of such repayment (including, but not
limited to, mailing notice of such repayment to Noteholder whose Notes have been
called but have not been surrendered for redemption or whose right to or
interest in moneys due and payable but not claimed is determinable from the
records of the Indenture Trustee or of any Paying Agent, at the last address of
record for each such Noteholder).
Section 3.04. Existence. (a) Subject to subparagraph (b) of this
---------
Section 3.04, the Issuer Trust will keep in full effect its existence, rights
------------
and franchises as a business trust under the laws of the State of Delaware
(unless it becomes, or any successor Issuer Trust hereunder is or becomes,
organized under the laws of any other State or of the United States of America,
in which case the Issuer Trust will keep in full effect its existence, rights
and franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes and the Collateral.
(b) Any successor to the Owner Trustee appointed pursuant to Section
-------
10.2 of the Trust Agreement shall be the successor Owner Trustee under this
----
Indenture without the execution or filing of any paper, instrument or further
act to be done on the part of the parties hereto.
(c) Upon any consolidation or merger of or other succession to the
Owner Trustee, the Person succeeding to the Owner Trustee under the Trust
Agreement may exercise every right and power of the Owner Trustee under this
Indenture with the same effect as if such Person had been named as the Owner
Trustee herein.
Section 3.05. Protection of Collateral. Upon receipt of written
------------------------
request from the Servicer in accordance with Section 11.06 of the Sale and
Servicing Agreement, the Issuer Trust will from time to time execute and deliver
all such reasonable supplements and amendments hereto and all such financing
statements, continuation statements, instruments of further assurance and other
instruments, and will take such other action necessary or advisable to:
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(i) provide further assurance with respect to the Grant of all or
any portion of the Collateral;
(ii) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the
purposes hereof;
(iii) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture;
(iv) enforce any rights with respect to the Collateral; or
(v) preserve and defend title to the Collateral and the rights of
the Indenture Trustee and the Noteholders in such Collateral against the
claims of all persons and parties.
Section 3.06. Annual Opinions as to Collateral. On or before March
--------------------------------
15th in each calendar year, beginning in 1999, the Servicer on behalf of the
Issuer Trust shall furnish to the Indenture Trustee an Opinion of Counsel either
stating that, in the opinion of such counsel, such action has been taken with
respect to the recording, filing, re-recording and refiling of this Indenture,
any indentures supplemental hereto, the Security Agreement [Indenture Trustee],
any supplements or amendments thereto, and any other requisite documents and
with respect to the execution and filing of any financing statements and
continuation statements as is necessary to maintain the lien and security
interest created by this Indenture and reciting the details of such action or
stating that in the opinion of such counsel no such action is necessary to
maintain such lien and security interest. Such Opinion of Counsel shall also
describe the recording, filing, re-recording and refiling of this Indenture, any
indentures supplemental hereto, the Security Agreement [Indenture Trustee], any
supplements or amendments thereto and any other requisite documents and the
execution and filing of any financing statements and continuation statements
that will, in the opinion of such counsel, be required to maintain the lien and
security interest of this Indenture until March 15th of the following calendar
year. Upon written request of the Servicer, the Issuer Trust will file any
necessary UCC-3 continuation statements.
Section 3.07. Performance of Obligations. (a) The Issuer Trust
--------------------------
will not take any action and will use its best efforts not to permit any action
to be taken by others that would release any Person from any of such Person's
material covenants or obligations under any instrument or agreement included in
the Collateral or that would result in the amendment, hypothecation,
subordination, termination or discharge of, or impair the validity or
effectiveness of, any such instrument or agreement, except as expressly provided
in this Indenture, the Security Documents, the Arena Agreement or the Sale and
Servicing Agreement.
(b) The Issuer Trust may contract with or otherwise obtain the
assistance of other Persons to assist it in performing its duties under this
Indenture, and any performance of such duties by a Person identified to the
Indenture Trustee in an Officer's Certificate of the Issuer Trust shall be
deemed to be action taken by the Issuer Trust.
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(c) The Issuer Trust will punctually perform and observe all of its
obligations and agreements contained in this Indenture, in the Basic Documents
and in the instruments and agreements included in the Collateral.
(d) If the Issuer Trust shall have knowledge of the occurrence of an
Event of Default under the Sale and Servicing Agreement, the Issuer Trust shall
promptly notify the Indenture Trustee and the Rating Agency thereof in writing,
and shall specify in such notice the action, if any, the Issuer Trust is taking
with respect to curing such default. If such an Event of Default shall arise
from the failure of the Servicer to perform any of its duties or obligations
under the Sale and Servicing Agreement, the Issuer Trust shall take all
reasonable steps available to it to remedy such failure.
(e) Without derogating from the absolute nature of the assignment
granted to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Issuer Trust agrees (i) that it will not,
without the prior written consent of the Indenture Trustee, amend, modify,
waive, supplement, terminate or surrender, or agree to any amendment,
modification, supplement, termination, waiver or surrender of, the terms of any
Collateral (except to the extent otherwise provided in the Security Documents to
which it is a party and the Sale and Servicing Agreement) or waive timely
performance or observance by the Servicer or the Transferor of their respective
obligations under the Sale and Servicing Agreement; and (ii) that any such
amendment shall not (A) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, payments that are required to be made for the
benefit of the Noteholders (except to the extent otherwise provided in the
Security Agreement [Indenture Trustee] and the Sale and Servicing Agreement) or
(B) reduce the aforesaid percentage of the Notes that is required to consent to
any such amendment, without the consent of all of the Noteholders. If any such
amendment, modification, supplement or waiver shall so be consented to by the
Indenture Trustee, the Issuer Trust agrees, promptly following a request by the
Indenture Trustee to do so, to execute and deliver, in its own name and at its
own expense, such agreements, instruments, consents and other documents as the
Indenture Trustee may deem necessary or appropriate in the circumstances.
Notice of any such amendment, modification, supplement or waiver shall be
delivered by the Issuer Trust to the Rating Agency.
Section 3.08. Negative Covenants. So long as any Notes are
------------------
Outstanding, the Issuer Trust shall not:
(i) except as expressly permitted by this Indenture, the Security
Agreement [Indenture Trustee] or the Sale and Servicing Agreement, sell,
transfer, exchange or otherwise dispose of any of the properties or assets
of the Issuer Trust, including those included in the Collateral, unless
directed to do so by the Indenture Trustee;
(ii) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts properly
withheld from such payments under the Code) or assert any claim against any
present or former Noteholder by reason of the payment of the taxes levied
or assessed upon any part of the Collateral;
C-16
(iii) engage in any business or activity other than as permitted by
the Trust Agreement, the Security Agreement [Indenture Trustee] and the
Sale and Servicing Agreement or other than in connection with, or relating
to, the issuance of Notes pursuant to this Indenture, or amend the Trust
Agreement as in effect on the Closing Date other than in accordance with
Section 11.1 thereof;
------------
(iv) issue debt obligations under any other indenture;
(v) incur or assume any indebtedness or guarantee any indebtedness
of any Person, except for such indebtedness as may be incurred by the
Issuer Trust in connection with the issuance of the Notes pursuant to this
Indenture;
(vi) dissolve or liquidate in whole or in part or merge or
consolidate with any other Person;
(vii) (A) permit the validity or effectiveness of this Indenture,
the Arena Agreement or the Security Documents to be impaired, or permit the
City Lien, the Security Documents or of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged except as set forth in
the City Intercreditor Agreements, or permit any Person to be released from
any covenants or obligations with respect to the Notes under this Indenture
except as may expressly be permitted by the City Intercreditor Agreements
or the Security Documents, (B) permit any lien, charge, excise, claim,
security interest, mortgage or other encumbrance (other than the lien of
the Security Documents, this Indenture and the City Lien) to be created on
or extend to or otherwise arise upon or burden the Collateral or any part
thereof or any interest therein or the proceeds thereof (other than tax
liens, mechanics' liens and other liens that arise by operation of law, in
each case on the Site or the New Arena Facility and which shall be promptly
discharged) or (C) permit the lien of the Security Documents and of this
Indenture not to constitute a valid first priority (other than with respect
to any such tax, mechanics' or other lien) security interest in the
Collateral, subject to the terms of the City Intercreditor Agreements; or
(viii) take any other action or fail to take any action which may
cause the Issuer Trust to be taxable as (a) an association pursuant to
Section 7701 of the Code and the corresponding regulations or (b) as a
taxable mortgage pool pursuant to Section 7701(i) of the Code and the
corresponding regulations.
Section 3.09. Annual Statement as to Compliance. The Issuer Trust
---------------------------------
will deliver to the Indenture Trustee, within 120 days after the end of each
fiscal year of the Issuer Trust (commencing in the fiscal year 1998), an
Officer's Certificate stating, as to the Authorized Officer of the Issuer Trust
signing such Officer's Certificate, that:
(i) a review of the activities of the Issuer Trust during such year
and of its performance under this Indenture has been made under such
Authorized Officer's supervision; and
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(ii) to the best of such Authorized Officer's knowledge, based on
such review, the Issuer Trust has complied with all conditions and
covenants under this Indenture throughout such year (without regard to
notice requirements or grace periods), or, if there has been a default in
its compliance with any such condition or covenant, specifying each such
default known to such Authorized Officer and the nature and status thereof.
Section 3.10. Covenants of the Issuer Trust. All covenants of the
-----------------------------
Issuer Trust in this Indenture are covenants of the Issuer Trust and are not
covenants of the Owner Trustee. The Owner Trustee is, and any successor Owner
Trustee under the Trust Agreement will be, entering into this Indenture solely
as Owner Trustee under the Trust Agreement and not in its respective individual
capacity, and in no case whatsoever shall the Owner Trustee or any such
successor Owner Trustee be personally liable on, or for any loss in respect of,
any of the statements, representations, warranties or obligations of the Issuer
Trust hereunder, as to all of which the parties hereto agree to look solely to
the property of the Issuer Trust.
Section 3.11. Restricted Payments. The Issuer Trust shall not,
-------------------
directly or indirectly, (i) pay any dividend or make any payment (by reduction
of capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee, the Servicer, the Transferor, or any Affiliate
thereof, or any owner of a beneficial interest in the Issuer Trust or otherwise
with respect to any ownership or equity interest or security in or of the Issuer
Trust, (ii) redeem, purchase, retire or otherwise acquire for value any such
ownership or equity interest or security or (iii) set aside or otherwise
segregate any amounts for any such purpose; provided, however, that the Issuer
-------- -------
Trust may make, or cause to be made, payments to the Servicer, the Indenture
Trustee, the Owner Trustee, the Paying Agent, the Noteholders and the
Certificateholders as contemplated by, and to the extent funds are available for
such purpose under, the Sale and Servicing Agreement or the Trust Agreement.
Section 3.12. Notice of Events of Default . The Issuer Trust shall
---------------------------
give the Indenture Trustee and the Rating Agency prompt written notice of each
Event of Default hereunder and each default on the part of the Servicer or the
Transferor of their respective obligations under the Sale and Servicing
Agreement.
Section 3.13. Further Instruments and Acts. Upon request of the
----------------------------
Indenture Trustee, the Issuer Trust will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper to
carry out more effectively the purpose of this Indenture.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture. This Indenture
---------------------------------------
shall cease to be of further effect with respect to the Notes (except as to (i)
Sections 3.03, 3.04 and 3.10 hereof, (ii) the rights, obligations and immunities
------------------- ----
of the Indenture Trustee hereunder
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(including the rights of the Indenture Trustee under Section 6.07 hereof and the
------------
obligations of the Indenture Trustee under Section 4.02 hereof) and (iii) the
------------
rights of Noteholders as beneficiaries hereof with respect to the property so
deposited with the Indenture Trustee payable to all or any of them), and the
Indenture Trustee, on demand of and at the expense of the Issuer Trust, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to the Notes, when all of the following have occurred:
(A) either (1) all Notes theretofore authenticated and delivered
(other than Notes that have been destroyed, lost or stolen and that have been
replaced or paid as provided in Section 2.04 hereof) shall have been delivered
------------
to the Indenture Trustee for cancellation; or (2) all Notes not theretofore
delivered to the Indenture Trustee for cancellation shall have become due and
payable, and the Issuer Trust has irrevocably deposited or caused irrevocably to
be deposited with the Indenture Trustee cash or direct obligations of or
obligations guaranteed by the United States of America (which will mature prior
to the date such amounts are payable), in trust for such purpose, in an amount
sufficient to pay and discharge the entire indebtedness on such Notes not
theretofore delivered to the Indenture Trustee for cancellation; and
(B) the latest of (a) 18 months after payment in full of all
outstanding obligations under the Notes, (b) the payment in full of all unpaid
Trust Fees and Expenses and (c) the date on which the Issuer Trust has paid or
caused to be paid all other sums payable hereunder by the Issuer Trust; and
(C) the Issuer Trust shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each meeting the applicable
requirements of Section 11.01(a) hereof and, subject to Section 11.02 hereof,
---------------- -------------
each stating that all conditions precedent herein provided for, relating to the
satisfaction and discharge of this Indenture with respect to the Notes, have
been complied with.
Section 4.02. Application of Trust Money. All moneys deposited
--------------------------
with the Indenture Trustee pursuant to Sections 3.03 and 4.01 hereof shall be
------------- ----
held in trust and applied by it, in accordance with the provisions of the Notes
and this Indenture, to the payment, either directly or through any Paying Agent,
as the Indenture Trustee may determine, to the Noteholders for the payment or
redemption of which such moneys have been deposited with the Indenture Trustee,
of all sums due and to become due thereon for principal and interest; but such
moneys need not be segregated from other funds except to the extent required
herein or in the Sale and Servicing Agreement or required by law.
Section 4.03. Repayment of Moneys Held by Paying Agent. In connection
----------------------------------------
with the satisfaction and discharge of this Indenture with respect to the Notes,
all moneys then held by any Paying Agent other than the Indenture Trustee under
the provisions of this Indenture with respect to such Notes shall, upon demand
of the Issuer Trust, be paid to the Indenture Trustee to be held and applied
according to Section 3.03 hereof and thereupon such Paying Agent shall be
------------
released from all further liability with respect to such moneys.
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ARTICLE V
REMEDIES
Section 5.01. Events of Default. An "Event of Default," wherever used
----------------- ----------------
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body or
otherwise):
(a) notwithstanding that there may be insufficient sums in the
Collection Account for payment thereof on the related Distribution Date, default
in the payment of any interest on any Note when the same becomes due and
payable, and continuance of such default for a period of two (2) Business Days;
or
(b) notwithstanding that there may be insufficient sums in the
Collection Account for payment thereof on the related Distribution Date, default
in the payment of the principal of any Note when the same becomes due and
payable on the Rated Final Maturity Date; or
(c) default in the observance or performance of any covenant or
agreement of the Issuer Trust made in this Indenture (other than a covenant or
agreement, a default in the observance or performance of which is elsewhere in
this Section specifically dealt with) or in any other Basic Document to which
the Issuer Trust is a party, or any representation or warranty of the Issuer
Trust made in this Indenture, any other Basic Document to which the Issuer Trust
is a party or in any certificate or other writing delivered pursuant hereto or
thereto or in connection herewith or therewith proving to have been incorrect in
any material respect as of the time when the same shall have been made, and such
default shall continue or not be cured, or the circumstance or condition in
respect of which such representation or warranty was incorrect shall not have
been eliminated or otherwise cured, for a period of 30 days after there shall
have been given, by registered or certified mail, to the Issuer Trust by the
Indenture Trustee, or to the Issuer Trust and the Indenture Trustee by the
Holders of at least 25% of the Voting Interests of the Outstanding Notes, a
written notice specifying such default or incorrect representation or warranty
and requiring it to be remedied and stating that such notice is a notice of
Default hereunder; or
(d) default in the observance or performance of any material covenant
or agreement of the Transferor made in the Trust Agreement, the Sale and
Servicing Agreement or any other Basic Document to which it is a party or any
representation or warranty of the Transferor made in the Trust Agreement, the
Sale and Servicing Agreement or any other Basic Document to which it is a party,
or in any certificate or other writing delivered pursuant thereto or in
connection therewith proving to have been incorrect in any material respect as
of the time when the same shall have been made, and such default shall continue
or not be cured, or the circumstance or condition in respect of which such
representation or warranty was incorrect shall not have been eliminated or
otherwise cured, for a period of 30 days after there shall have been given, by
registered or certified mail, to the Issuer Trust by the Indenture
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Trustee, or to the Issuer Trust and the Indenture Trustee by the Holders of at
least 25% of the Voting Interests of the Outstanding Notes, a written notice
specifying such default or incorrect representation or warranty and requiring it
to be remedied and stating that such notice is a notice of Default hereunder;
provided, however, that if (i) such default cannot be cured within such 30 day
-------- -------
period, (ii) such default is susceptible of being cured in the reasonable
opinion of the Transferor, (iii) no other Event of Default has occurred and is
continuing, (iv) the Transferor is proceeding with diligence and in good faith
to cure such default, (v) the existence of such default is not reasonably likely
to result in any Revenue Contractor being entitled to discontinue making
payments under its respective Revenue Agreement, and (vi) the Indenture Trustee
has received an Officer's Certificate of the Transferor with respect to clauses
(i), (ii), (iii), (iv) and (v) above, then such 30 day period shall be extended
by up to an additional 60 days as shall be necessary for the Transferor to
diligently cure such default; or
(e) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer Trust or any substantial
part of the Collateral in an involuntary case under any applicable federal or
state bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer Trust or for any substantial part of the
Collateral, or ordering the winding-up or liquidation of the Issuer Trust's
affairs, and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or
(f) the commencement by the Issuer Trust of a voluntary case under
any applicable federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect, or the consent by the Issuer Trust to the entry of an
order for relief in an involuntary case under any such law, or the consent by
the Issuer Trust to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of
the Issuer Trust or for any substantial part of the Collateral, or the making by
the Issuer Trust of any general assignment for the benefit of creditors, or the
failure by the Issuer Trust generally to pay its debts as such debts become due,
or the taking of any action by the Issuer Trust in furtherance of any of the
foregoing; or
(g) failure by the Transferor to pay the amount required to be paid
by it in the event of the mandatory redemption of the Notes pursuant to clauses
(iii) or (iv) of Section 10.01 hereof.
-------------
The Issuer Trust shall deliver to the Indenture Trustee, within five
days after the occurrence thereof, written notice in the form of an Officer's
Certificate of any event which with the giving of notice and the lapse of time
would become an Event of Default under clauses (c) and (d) above, the status of
such event and what action the Issuer Trust is taking or proposes to take with
respect thereto.
Section 5.02. Acceleration of Maturity; Rescission and Annulment. If
--------------------------------------------------
an Event of Default should occur and be continuing, then (i) if such Event of
Default arises under Section 5.01(e) or (f) hereof, automatically and without
----------------------
any further act by the Indenture Trustee, the Issuer Trust or any other Person
and without protest, presentment, demand or
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notice of any kind, all of which are hereby waived by the Issuer Trust, the
unpaid principal amount of the Notes, together with accrued and unpaid interest
shall be immediately due and payable and (ii) in all other cases, the Indenture
Trustee, at the direction or upon the prior written consent of the Majority
Noteholders, may declare all the Notes to be immediately due and payable, by a
notice in writing to the Issuer Trust (and to the Indenture Trustee if given
directly by the Majority Noteholders), and upon any such declaration the unpaid
principal amount of such Notes, together with accrued and unpaid interest
thereon shall become immediately due and payable.
At any time after such declaration of acceleration of maturity has
been made and before a judgment or decree for payment of the moneys due has been
obtained by the Indenture Trustee as hereinafter in this Article V provided, the
---------
Majority Noteholders, by written notice to the Issuer Trust and the Indenture
Trustee, may rescind and annul such declaration and its consequences if:
(a) the Issuer Trust has paid or deposited with the Indenture Trustee
a sum sufficient to pay:
1. all payments of principal and interest on all Notes and all other
amounts that would then be due hereunder or upon such Notes if the
Event of Default giving rise to such acceleration had not occurred;
and
2. all sums paid or advanced by the Indenture Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Indenture Trustee and its agents and counsel; and
(b) all Events of Default, other than the nonpayment of the principal
of the Notes that has become due solely by such acceleration, have been cured or
waived as provided in Section 5.12 hereof. No such rescission shall affect any
------------
subsequent default or impair any right consequent thereto.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Indenture Trustee. (a) The Issuer Trust covenants that if (i) default is made in
-----------------
the payment of any interest on any Note when the same becomes due and payable,
and such default continues for a period of two (2) Business Days, or (ii)
default is made in the payment of the principal of any Note when the same
becomes due and payable on the Rated Final Maturity Date, the Issuer Trust will,
upon demand of the Indenture Trustee, pay to the Indenture Trustee, for the
benefit of the Noteholders, the entire amount then due and payable on such Notes
for principal and interest, with interest upon the overdue principal and, to the
extent payment at such rate of interest shall be legally enforceable, upon
overdue installments of interest at the rate borne by the Notes and in addition
thereto such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its agents and counsel.
(b) In the event that the Issuer Trust shall fail to pay such amounts
upon such demand, the Indenture Trustee may, and shall at the direction of the
Majority
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Noteholders, institute a Proceeding for the collection of the sums so due and
unpaid, and may prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer Trust or other obligor upon such Notes and
collect in the manner provided by law out of the property of the Issuer Trust or
other obligor upon such Notes, wherever situated, the moneys adjudged or decreed
to be payable.
(c) If an Event of Default occurs and is continuing, the Indenture
Trustee may, in its discretion, and shall at the direction of the Majority
Noteholders, as more particularly provided in Section 5.04 hereof, proceed to
------------
protect and enforce its rights and the rights of the Noteholders by such
appropriate Proceedings as the Indenture Trustee shall deem most effective to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy or legal or equitable
right vested in the Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer Trust or
any other obligor upon the Notes or any Person having or claiming an ownership
interest in the Collateral, Proceedings under the Bankruptcy Code or any other
applicable federal or state bankruptcy, insolvency or other similar law, or in
case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer Trust or its property or such other obligor or
Person, or in case of any other comparable judicial Proceedings relative to the
Issuer Trust or other obligor upon the Notes, or to the creditors or property of
the Issuer Trust or such other obligor, the Indenture Trustee, irrespective of
whether the principal of any Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Indenture Trustee shall have made any demand pursuant to the provisions of this
Section, shall be entitled and empowered by intervention in such Proceedings or
otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Indenture Trustee (including any claim for
reasonable compensation to the Indenture Trustee, each predecessor
Indenture Trustee, and its agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all advances
made, by the Indenture Trustee and each predecessor Indenture Trustee,
except as a result of negligence or bad faith) and of the Noteholders
allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote on
behalf of the Noteholders in any election of a trustee, a standby trustee
or Person performing similar functions in any such Proceedings;
(iii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute all amounts received with
respect to the claims of the Noteholders and the Indenture Trustee on their
behalf; and
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(iv) to file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Indenture
Trustee or the Noteholders allowed in any judicial proceedings relative to
the Issuer Trust, its creditors and its property; and any trustee,
receiver, liquidator, custodian or other similar official in any such
Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee and, in the event that the Indenture
Trustee shall consent to the making of payments directly to such
Noteholders, to pay to the Indenture Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred and all advances
made by the Indenture Trustee and each predecessor Indenture Trustee except
as a result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Noteholder or to authorize
the Indenture Trustee to vote in respect of the claim of any Noteholder in any
such Proceeding except, as aforesaid, to vote for the election of a trustee in
bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof in any
trial or other Proceedings relative thereto, and any such action or Proceedings
instituted by the Indenture Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents, attorneys and
counsel, shall be for the ratable benefit of the Noteholders.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Noteholders, and it shall not be necessary to make any
Noteholder a party to any such Proceedings.
Section 5.04. Remedies; Priorities.
--------------------
(a) If an Event of Default shall have occurred and be continuing, the
Indenture Trustee may, and at the direction of the Majority Noteholders shall,
do one or more of the following (subject to Section 5.05 hereof):
------------
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the Notes
or under this Indenture with respect thereto, whether by declaration or
otherwise, enforce any judgment obtained, and collect from the Issuer Trust
and any other obligor upon such Notes moneys adjudged due;
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(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Collateral;
(iii) subject to the City Intercreditor Agreements, exercise any
remedies of a secured party under the UCC and take any other appropriate
action to protect and enforce the rights and remedies of the Indenture
Trustee or the Noteholders; and
(iv) sell the Collateral or any portion thereof or rights or
interest therein in a commercially reasonable manner as provided in the
Security Agreement [Indenture Trustee] and the other Security Documents. In
determining compliance with the Security Documents, the Indenture Trustee
shall obtain and rely upon an opinion of an Independent investment banking
or accounting firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the Collateral for such
purpose.
(b) If the Indenture Trustee collects any money or property
pursuant to this Article V, it shall pay out the money or property in the
---------
following order (subject to the terms of the City Intercreditor Agreements):
FIRST: to the Indenture Trustee for the Indenture Trustee Fee then
due and unpaid and any costs or expenses incurred by it in connection with
the enforcement of the remedies provided for in this Article V and to the
Owner Trustee for the Owner Trustee Fee then due and unpaid;
SECOND: any amounts due and unpaid to the City pursuant to the Lease;
THIRD: to the Servicer for the Servicing Fee then due and unpaid,
unless the Servicer is the initial Servicer and there shall have occurred
and be continuing a Servicer Event of Default;
FOURTH: to the Custodian for the Custodian Fee, if any, then due and
unpaid;
FIFTH: to the Noteholders for amounts due and unpaid on the Notes
for interest and principal, pro rata according to the amounts due and
payable on the Notes;
SIXTH: to the Certificate Paying Agent, for any amounts to be
distributed pro rata to the Certificateholders pursuant to the Trust
Agreement and the City Intercreditor Agreements.
The Indenture Trustee may schedule a record date and Distribution Date
for any payment to be made to the Noteholders pursuant to this Section. At
least 15 days before such record date, the Indenture Trustee shall mail to each
Noteholder and the Issuer Trust a notice that states the record date, the
Distribution Date and the amount to be paid.
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Section 5.05. Optional Preservation of the Collateral. If the
---------------------------------------
Notes have been declared to be due and payable under Section 5.02 hereof
------------
following an Event of Default and such declaration and its consequences have not
been rescinded and annulled, the Indenture Trustee may, but need not, elect to
maintain possession of the Collateral. It is the desire of the parties hereto
and the Noteholders that there be at all times sufficient funds for the payment
of principal of and interest on the Notes, and the Indenture Trustee shall take
such desire into account when determining whether or not to maintain possession
of the Collateral. In determining whether to maintain possession of the
Collateral, the Indenture Trustee may, but need not, obtain and rely upon an
opinion of an Independent investment banking or accounting firm of national
reputation as to the feasibility of such proposed action and as to the
sufficiency of the Collateral for such purpose.
Section 5.06. Limitation of Suits. No Noteholder shall have any
-------------------
right to institute any Proceeding, judicial or otherwise, with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Noteholder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% of the Voting Interests of the
Outstanding Notes have made written request to the Indenture Trustee to
institute such Proceeding in respect of such Event of Default in its own
name as Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture Trustee
indemnity satisfactory to it against the costs, expenses and liabilities to
be incurred in complying with such request;
(d) the Indenture Trustee, for 60 days after its receipt of such
notice, request and offer of indemnity, has failed to institute such
Proceeding; and
(e) no direction inconsistent with such written request has been
given to the Indenture Trustee during such 60-day period by the Majority
Noteholders.
It is understood and intended that no Noteholder shall have any right
in any manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other Noteholder or
to obtain or to seek to obtain priority or preference over any other Noteholder
or to enforce any right under this Indenture, except in the manner herein
provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Noteholders, each
representing less than the Majority Noteholders, the Indenture Trustee in its
sole discretion may determine what action, if any, shall be taken,
notwithstanding any other provisions of this Indenture.
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Section 5.07. Unconditional Rights of Noteholders to Receive
----------------------------------------------
Principal and Interest. Notwithstanding any other provisions in this
----------------------
Indenture, the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest on such Note
on or after the Rated Final Maturity Date or as otherwise provided in this
Indenture (or, in the case of redemption, on or after the Redemption Date) and
to institute suit for the enforcement of any such payment, and such right shall
not be impaired without the consent of such Holder.
Section 5.08. Restoration of Rights and Remedies. If the Indenture
----------------------------------
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer Trust, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had been
instituted.
Section 5.09. Rights and Remedies Cumulative. Except as otherwise
------------------------------
set forth in the last paragraph of Section 2.04 hereof, no right or remedy
------------
herein conferred upon or reserved to the Indenture Trustee or to the Noteholders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.10. Delay or Omission Not a Waiver. No delay or omission
------------------------------
of the Indenture Trustee or any Noteholder to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by law
---------
to the Indenture Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or by
the Noteholders, as the case may be.
Section 5.11. Control by Noteholders. The Majority Noteholders
----------------------
shall have the right to direct the time, method and place of conducting any
Proceeding for any remedy available to the Indenture Trustee with respect to the
Notes or exercising any trust or power conferred on the Indenture Trustee;
provided, however, that:
-------- -------
(a) such direction shall not be in conflict with any applicable rule
of law or with this Indenture;
(b) subject to the express terms of Section 5.04 hereof, any
------------
direction to the Indenture Trustee to sell or liquidate the available
Collateral shall be by Noteholders representing not less than 100% of the
Voting Interests of all Notes Outstanding;
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(c) if the conditions set forth in Section 5.05 hereof have been
------------
satisfied and the Indenture Trustee elects to retain the Collateral
pursuant to such Section, then any direction to the Indenture Trustee by
Noteholders representing less than 100% of the Voting Interests of all
Notes Outstanding to sell or liquidate the Collateral shall be of no force
and effect; and
(d) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee that is not inconsistent with such direction.
Notwithstanding the rights of the Noteholders set forth in this
Section 5.11, subject to Section 6.01 hereof, the Indenture Trustee need not
------------ ------------
take any action that it determines might involve it in liability or might
materially adversely affect the rights of any Noteholders not consenting to such
action.
Section 5.12. Waiver of Past Defaults. The Majority Noteholders
-----------------------
may waive any past Default or Event of Default and its consequences, except a
Default (a) in the payment of principal or interest on any of the Notes or (b)
in respect of a covenant or provision hereof that cannot be modified or amended
without the consent of each Noteholder. In the case of any such waiver, the
Issuer Trust, the Indenture Trustee and the Noteholders shall be restored to
their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto.
Section 5.13. Undertaking for Costs. All parties to this Indenture
---------------------
agree, and each Noteholder by acceptance of the related Note (or a direct or
indirect beneficial interest therein) shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Indenture
Trustee for any action taken, suffered or omitted by it as Indenture Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section shall
not apply to (a) any suit instituted by the Indenture Trustee, (b) any suit
instituted by any Noteholder, or group of Noteholders, in each case holding in
the aggregate more than 10% of the Voting Interests of the Outstanding Notes or
(c) any suit instituted by any Noteholder for the enforcement of the payment of
principal or interest on a Note on or after the related due date expressed in
such Note and in this Indenture (or, in the case of redemption, on or after the
Redemption Date).
Section 5.14. Waiver of Stay or Extension Laws. The Issuer Trust
--------------------------------
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead or in
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any manner whatsoever, claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture or the Security
Agreement [Indenture Trustee], and the Issuer Trust (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Indenture Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
Section 5.15. Action on Notes. The Indenture Trustee's right to
---------------
seek and recover judgment on the Notes or under this Indenture shall not be
affected by the seeking, obtaining or application of any other relief under or
with respect to this Indenture or the Security Agreement [Indenture Trustee].
Neither the lien of this Indenture or of the Security Agreement [Indenture
Trustee], nor any rights or remedies of the Indenture Trustee or the Noteholders
shall be impaired by the recovery of any judgment by the Indenture Trustee
against the Issuer Trust or by the levy of any execution under such judgment
upon any portion of the Collateral or upon any of the assets of the Issuer
Trust. Any money or property collected by the Indenture Trustee shall be
applied in accordance with Section 5.04(b) hereof.
---------------
Section 5.16. Performance and Enforcement of Certain Obligations.
--------------------------------------------------
(a) Promptly following a request from the Indenture Trustee to do so,
the Issuer Trust shall take all such lawful action as the Indenture Trustee may
request to compel or secure the performance and observance by the Transferor and
the Servicer, as applicable, of each of their obligations to the Issuer Trust
under or in connection with the Sale and Servicing Agreement, and to exercise
any and all rights, remedies, powers and privileges lawfully available to the
Issuer Trust under or in connection with the Sale and Servicing Agreement to the
extent and in the manner directed by the Indenture Trustee, including the
transmission of notices of default on the part of the Transferor or the Servicer
thereunder and the institution of legal or administrative actions or Proceedings
to compel or secure performance by the Transferor or the Servicer of each of
their obligations under the Sale and Servicing Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall either be in
writing or by telephone confirmed in writing promptly thereafter) of the Holders
of 66-2/3% of the Voting Rights of the Notes Outstanding shall, exercise all
rights, remedies, powers, privileges and claims of the Issuer Trust against the
Transferor or the Servicer under or in connection with the Sale and Servicing
Agreement, including the right or power to take any action to compel or secure
performance or observance by the Transferor or the Servicer, as the case may be,
of each of their obligations thereunder and to give any consent, request,
notice, direction, approval, extension, or waiver under the Sale and Servicing
Agreement, and any right of the Issuer Trust to take such action shall be
suspended.
Section 5.17. Environmental Site Assessment. The Indenture Trustee
-----------------------------
shall not commence foreclosure of any mortgage on the Property unless a Phase I
(and if appropriate, Phase II) environmental site assessment of the Property is
conducted at the expense of the
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Transferor, and no material environmental liabilities or potential material
liabilities are detected thereby.
ARTICLE VI
THE INDENTURE TRUSTEE
Section 6.01. Duties of Indenture Trustee. (a) If an Event of
---------------------------
Default has occurred and is continuing, the Indenture Trustee shall exercise the
rights and powers vested in it by this Indenture and use the same degree of care
and skill in its exercise as a prudent person would use under the circumstances
in the exercise of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; provided, however, in the case of any such
-------- -------
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Indenture Trustee, the Indenture Trustee
shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).
(c) The Indenture Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section 6.01;
------------
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved
that the Indenture Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Indenture Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.11 hereof.
------------
(d) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to paragraphs (a), (b), (c) and (g) of this Section
-------------------------------- -------
6.01.
----
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(e) The Indenture Trustee shall not be liable for interest on any
money received by it except as the Indenture Trustee may agree in writing with
the Issuer Trust.
(f) Money held in trust by the Indenture Trustee shall be segregated
from other funds except to the extent permitted by law or the terms of this
Indenture or the Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it; provided, however, that the Indenture Trustee
-------- -------
shall not refuse or fail to perform any of its duties hereunder solely as a
result of nonpayment of its normal fees and expenses and provided, further, that
-------- -------
nothing in this Section 6.01(g) shall be construed to limit the exercise by the
---------------
Indenture Trustee of any right or remedy permitted under this Indenture or
otherwise in the event of the Issuer Trust's failure to pay the Indenture
Trustee's fees and expenses pursuant to Section 6.07 hereof. In determining
------------
that such repayment or indemnity is not reasonably assured to it, the Indenture
Trustee must consider not only the likelihood of repayment or indemnity by or on
behalf of the Issuer Trust but also the likelihood of repayment or indemnity
from amounts payable to it from the Collateral pursuant to Section 6.07 hereof.
------------
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section.
(i) The Indenture Trustee shall not be required to take notice or be
deemed to have notice or knowledge of any Event of Default (other than any Event
of Default pursuant to Section 5.01(a) and (b) hereof) unless a Responsible
-----------------------
Officer of the Indenture Trustee shall have received written notice thereof or
otherwise shall have actual knowledge thereof. In the absence of receipt of
notice or such knowledge, the Indenture Trustee may conclusively assume that
there is no Event of Default.
Section 6.02. Rights of Indenture Trustee.
---------------------------
(a) The Indenture Trustee may rely conclusively on any document
believed by it to be genuine and to have been signed or presented by the proper
person. The Indenture Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel. The Indenture
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on an Officer's Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a
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custodian or nominee and the Indenture 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.
(d) The Indenture Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that such action or omission by the
-------- -------
Indenture Trustee does not constitute willful misconduct, negligence or bad
faith.
(e) The Indenture Trustee may consult with counsel of its selection,
and the advice or opinion of counsel with respect to legal matters relating to
this Indenture and the Notes shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered by
it hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) The rights, privileges, protections, immunities and benefits
given to the Indenture Trustee, including, without limitation, its rights to be
indemnified, are extended to, and shall be enforceable by, the Indenture Trustee
in each of its capacities hereunder, and to each agent, custodian and other
Person employed to act hereunder.
Section 6.03. Individual Rights of Indenture Trustee. The Indenture
--------------------------------------
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuer Trust or its Affiliates with the
same rights it would have if it were not Indenture Trustee. Any Paying Agent,
Note Registrar, co-registrar or co-paying agent may do the same with like
rights. However, the Indenture Trustee must comply with Sections 6.11 and 6.12
------------- ----
hereof.
Section 6.04. Indenture Trustee's Disclaimer'. The Indenture Trustee
------------------------------
shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, shall not be accountable for the Issuer
Trust's use of the proceeds from the Notes, or responsible for any statement of
the Issuer Trust in the Indenture or in any document issued in connection with
the sale of the Notes or in the Notes other than the Indenture Trustee's
certificate of authentication.
Section 6.05. Notices of Default. If a Default occurs and is
------------------
continuing and if it is known to a Responsible Officer of the Indenture Trustee,
the Indenture Trustee shall mail to each Noteholder notice of the Default within
90 days after it occurs. Except in the case of a Default in payment of
principal or interest on any Note (including payments pursuant to the mandatory
redemption provisions of such Note), the Indenture Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of Noteholders.
Section 6.06. Reports by Indenture Trustee to Holders. The
---------------------------------------
Indenture Trustee shall deliver to each Noteholder such information as may be
required to enable such Holder to prepare its federal and state income tax
returns.
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Section 6.07. Compensation and Indemnity. As compensation for its
--------------------------
services hereunder, the Indenture Trustee shall be entitled to receive, on each
Distribution Date, the Indenture Trustee's Fee (which compensation shall not be
limited by any law on compensation of a trustee of an express trust) and shall
be entitled to reimbursement by the Servicer for all reasonable out-of-pocket
expenses incurred or made by it, including costs of collection, in addition to
the compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture Trustee's
agents, counsel, accountants and experts. The Issuer Trust agrees to cause the
Transferor to indemnify the Indenture Trustee against any and all loss, damage,
claim (whether asserted by the Issuer Trust or any Noteholder or any other
Person) liability or expense (including attorneys' fees and expenses) incurred
by it in connection with the administration of this trust and the performance of
its duties hereunder. The Indenture Trustee shall notify the Issuer Trust and
the Transferor promptly of any claim for which it may seek indemnity. Failure
by the Indenture Trustee so to notify the Issuer Trust and the Transferor shall
not relieve the Issuer Trust of its obligations hereunder. The Issuer Trust
shall defend or cause the Transferor to defend any such claim, and shall pay or
cause the Transferor to pay the reasonable fees and expenses of separate counsel
obtained by the Indenture Trustee with respect hereof, which counsel shall be
reasonably acceptable to the Transferor. Neither the Issuer Trust nor the
Transferor need reimburse any expense or indemnify against any loss, liability
or expense incurred by the Indenture Trustee through the Indenture Trustee's own
willful misconduct, negligence or bad faith.
The Indenture Trustee shall have a lien prior to the Notes as to all
property and funds held by it hereunder for any amount owing to it or any
predecessor Indenture Trustee pursuant to this Section 6.07, except with respect
------------
to funds held in trust for the benefit of the Noteholders.
The Issuer Trust's payment obligations to the Indenture Trustee
pursuant to this Section 6.07 shall survive the discharge of this Indenture.
------------
When the Indenture Trustee incurs expenses after the occurrence of a Default
specified in Section 5.01(a) hereof with respect to the Issuer Trust, the
---------------
expenses are intended to constitute expenses of administration under Title 11 of
the United States Code or any other applicable federal or state bankruptcy,
insolvency or similar law.
Section 6.08. Replacement of Indenture Trustee. No resignation or
--------------------------------
removal of the Indenture Trustee and no appointment of a successor Indenture
Trustee shall become effective until the acceptance of appointment by the
successor Indenture Trustee pursuant to this Section 6.08. The Indenture
------------
Trustee may resign at any time by so notifying the Issuer Trust. The Majority
Noteholders may remove the Indenture Trustee by so notifying the Indenture
Trustee and may appoint a successor Indenture Trustee. The Issuer Trust shall
remove the Indenture Trustee if:
(a) the Indenture Trustee fails to comply with Section 6.11 hereof;
------------
(b) the Indenture Trustee is adjudged a bankrupt or insolvent;
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(c) a receiver or other public officer takes charge of the Indenture
Trustee or its property; or
(d) the Indenture Trustee otherwise becomes incapable of performing
its obligations under this Indenture.
If the Indenture Trustee resigns or is removed or if a vacancy exists
in the office of Indenture Trustee for any reason (the Indenture Trustee in such
event being referred to herein as the retiring Indenture Trustee), the Issuer
Trust shall promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of
its appointment to the retiring Indenture Trustee and to the Issuer Trust. Upon
receipt of such written acceptance by the Issuer Trust, the resignation or
removal of the retiring Indenture Trustee shall become effective, and the
successor Indenture Trustee shall have all the rights, powers and duties of the
Indenture Trustee under this Indenture and the Security Agreement [Indenture
Trustee]. The successor Indenture Trustee shall mail a notice of its succession
to Noteholders. The retiring Indenture Trustee shall promptly transfer all
property held by it as Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer Trust or the Majority Noteholders may petition, at
the expense of the Issuer Trust, any court of competent jurisdiction for the
appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11 hereof, any
------------
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section 6.08, the Issuer Trust's obligations under Section 6.07 hereof
------------ ------------
shall continue for the benefit of the retiring Indenture Trustee.
Section 6.09. Successor Indenture Trustee by Merger. If the Indenture
-------------------------------------
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Indenture Trustee; provided,
--------
however, that such corporation or banking association shall otherwise be
-------
qualified and eligible under Section 6.11 hereof. The Indenture Trustee
------------
shall provide the Rating Agency prior written notice of any such transaction.
In case at the time such successor or successors by merger, conversion
or consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have
C-34
been authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Notes or in this Indenture
provided that the certificate of the Indenture Trustee shall have.
Section 6.10. Appointment of Co-Indenture Trustee or Separate
-----------------------------------------------
Indenture Trustee. (a) Notwithstanding any other provisions of this
-----------------
Indenture, at any time, for the purpose of meeting any legal requirement of any
jurisdiction in which any part of the Collateral may at the time be located, the
Indenture Trustee shall have the power and may execute and deliver all
instruments to appoint one or more Persons to act as a co-trustee or co-
trustees, or separate trustee or separate trustees, of all or any part of the
Trust, and to vest in such Person or Persons, in such capacity and for the
benefit of the Noteholders, such title to the Collateral, or any part hereof,
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Indenture Trustee may consider necessary
or desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 6.11 hereof
------------
and no notice to Noteholders of the appointment of any co-trustee or separate
trustee shall be required under Section 6.08 hereof.
------------
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Indenture Trustee shall be conferred or imposed upon and exercised
or performed by the Indenture Trustee and such separate trustee or co-
trustee jointly (it being understood that such separate trustee or co-
trustee is not authorized to act separately without the Indenture Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed the
Indenture Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Collateral or any portion thereof in
any such jurisdiction) shall be exercised and performed solely by such
separate trustee or co-trustee, pursuant to and at the direction of the
Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the resignation of
or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
----------
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, jointly with the Indenture
Trustee, subject to all the provisions of this Indenture, specifically including
every provision of this Indenture
C-35
relating to the conduct of, affecting the liability of, or affording protection
to, the Indenture Trustee. Every such instrument shall be filed with the
Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Indenture and the Security Agreement [Indenture Trustee] on its behalf and
in its name. If any separate trustee or co-trustee shall die, become incapable
of acting, resign or be removed, all of its estates, properties, rights,
remedies and trusts shall vest in and be exercised by the Indenture Trustee, to
the extent permitted by law, without the appointment of a new or successor
trustee.
Section 6.11. Eligibility; Disqualification. The Indenture Trustee
-----------------------------
shall at all times be a corporation or a national banking association organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a commercial paper or other short term rating of
the highest short term rating category of the Rating Agency and a combined
capital and surplus of at least $50,000,000, and subject to supervision or
examination by federal or state authority. If such corporation or national
banking association publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation or national banking association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Indenture Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect specified in Section 6.08.
------------
Section 6.12. Indenture Trustee's Application for Instructions from
-----------------------------------------------------
the Issuer Trust. Any application by the Indenture Trustee for written
----------------
instructions from the Issuer Trust or the Servicer on behalf of the Issuer Trust
may, at the option of the Indenture Trustee, set forth in writing any action
proposed to be taken or omitted by the Indenture Trustee under this Indenture
and the date on and/or after which such action shall be taken or such omission
shall be effective. The Indenture Trustee shall not be liable for any action
taken by, or omission of, the Indenture Trustee in accordance with a proposal
included in such application on or after the date specified in such application
(which date shall not be less than seven (7) Business Days after the date any
Officer of the Issuer Trust actually receives such application, unless any such
Officer shall have consented in writing to any earlier date) unless prior to
taking any such action (or the effective date in the case of an omission), the
Indenture Trustee shall have received written instructions in response to such
application specifying the action to be taken or omitted.
C-36
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS'
Section 7.01. Issuer Trust to Furnish Indenture Trustee Names and
---------------------------------------------------
Addresses of Noteholders. The Issuer Trust will furnish or cause to be
------------------------
furnished to the Indenture Trustee (a) not more than five days after the earlier
of (i) each Record Date and (ii) three months after the last Record Date, a
list, in such form as the Indenture Trustee may reasonably require, of the names
and addresses of the Registered Holders, (b) at such other times as the
Indenture Trustee may request in writing, within 30 days after receipt by the
Issuer Trust of any such request, a list of similar form and content as of a
date not more than 10 days prior to the time such list is furnished; provided,
--------
however, that so long as the Indenture Trustee is the Note Registrar, no such
-------
list shall be required to be furnished.
Section 7.02. Preservation of Information. The Indenture Trustee
---------------------------
shall preserve, in as current a form as is reasonably practicable, the names and
addresses of the Noteholders contained in the most recent list furnished to the
Indenture Trustee as provided in Section 7.01 hereof and the names and addresses
------------
of Noteholders received by the Indenture Trustee in its capacity as Note
Registrar. The Indenture Trustee may destroy any list furnished to it as
provided in such Section 7.01 upon receipt of a new list so furnished.
------------
Section 7.03. Reports by Indenture Trustee. The Indenture Trustee
----------------------------
shall comply with all of its obligations as set forth in Article VI of the Sale
and Servicing Agreement.
Section 7.04. 144A Information. The Servicer on behalf of the Issuer
----------------
Trust shall provide to the Indenture Trustee and the Indenture Trustee shall
provide to any Noteholder and any prospective transferee designated by any such
Noteholder information regarding the Notes and the Collateral and such other
information as shall be necessary to satisfy the condition to eligibility set
forth in Rule 144A(d)(4) under the Securities Act for transfer of any such Note
without registration thereof under the Securities Act pursuant to the
registration exemption provided by Rule 144A under the Securities Act. Each
Noteholder desiring to effect such a transfer shall, and does hereby agree to,
indemnify the Issuer Trust, the Owner Trustee, the Indenture Trustee and the
Company against any liability that may result if the transfer is not so exempt
or is not made in accordance with federal and state securities laws.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. Collection of Money.
-------------------
General. Except as otherwise expressly provided herein, the Indenture
-------
Trustee may demand payment or delivery of, and shall receive and collect,
directly and without intervention or assistance of any fiscal agent or other
intermediary, all money and other
C-37
property payable to or receivable by the Indenture Trustee pursuant to this
Indenture. The Indenture Trustee shall apply all such money received by it as
provided in this Indenture. Except as otherwise expressly provided in this
Indenture, if any default occurs in the making of any payment or performance
under any agreement or instrument that is part of the Collateral, the Indenture
Trustee may take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
Proceedings. Any such action shall be without prejudice to any right to claim a
Default or Event of Default under this Indenture and any right to proceed
thereafter as provided in Article V hereof.
---------
Section 8.02. Trust Accounts. On or prior to the Closing Date, the
--------------
Servicer shall establish and maintain, in the name of the Indenture Trustee for
the benefit of the Noteholders, or on behalf of the Owner Trustee for the
benefit of the Certificateholders, the Trust Accounts as provided in Article V
---------
of the Sale and Servicing Agreement. The Indenture Trustee shall deposit
amounts into each of the Trust Accounts in accordance with the terms of the Sale
and Servicing Agreement and the Servicer's Remittance Report.
Section 8.03. General Provisions Regarding Accounts. (a) So long
-------------------------------------
as no Default or Event of Default shall have occurred and be continuing, all or
a portion of the funds in the Trust Accounts shall be invested in Permitted
Investments and reinvested by the Indenture Trustee at the specific written
direction of the Servicer in accordance with the provisions of Article V of the
-----------
Sale and Servicing Agreement. All income or other gain from investments of
moneys deposited in the Trust Accounts, except for the Debt Service Reserve
Account and the Capitalized Interest Account, shall be deposited by the
Indenture Trustee into the Collection Account in accordance with the provisions
of the Sale and Servicing Agreement, and any loss resulting from such
investments shall be charged to such account. The Servicer will not direct the
Indenture Trustee to make any investment of any funds or to sell any investment
held in any of the Trust Accounts unless the security interest Granted and
perfected in such account will continue to be perfected in such investment or
the proceeds of such sale, in either case without any further action by any
Person, and, in connection with any direction to the Indenture Trustee to make
any such investment or sale, the Servicer shall deliver to the Indenture Trustee
an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. The
Indenture Trustee shall have no liability whatsoever for any loss, fee, tax or
other charge in connection with any such investments or the liquidation thereof.
(b) Subject to Section 6.01(c) hereof, the Indenture Trustee shall not
---------------
in any way be held liable by reason of any insufficiency in any of the Trust
Accounts resulting from any loss on any Eligible Investment included therein
except for losses attributable to the Indenture Trustee's failure to make
payments on such Eligible Investments issued by the Indenture Trustee, in its
commercial capacity as principal obligor and not as trustee, in accordance with
their terms.
(c) If (i) the Servicer shall have failed to give investment
directions for any funds on deposit in the Trust Accounts to the Indenture
Trustee by 11:00 a.m. Eastern Time (or such other time as may be agreed by the
Issuer Trust and Indenture Trustee) on any Business Day or (ii) a Default or
Event of Default shall have occurred and be continuing with
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respect to the Notes but the Notes shall not have been declared due and payable
pursuant to Section 5.02 hereof or (iii) the Notes shall have been declared due
------------
and payable following an Event of Default, but amounts collected or receivable
from the Collateral are being applied in accordance with Section 5.05 hereof as
------------
if there had not been such a declaration, then the Indenture Trustee shall, to
the fullest extent practicable, invest and reinvest funds in the Trust Accounts
in one or more Eligible Investments.
Section 8.04. Servicer's Monthly Statements'. On each Distribution
-----------------------------
Date, the Indenture Trustee shall deliver the Servicer's Remittance Report with
respect to such Distribution Date to the Clearing Agency, the Rating Agency and
each Noteholder.
Section 8.05. Release of Collateral. (a) Subject to the payment of
---------------------
its fees and expenses pursuant to Section 6.07 hereof, the Indenture Trustee
------------
may, and when required by the provisions of this Indenture and the Security
Agreement [Indenture Trustee] shall, execute instruments to release property
from the lien of this Indenture and the Security Agreement [Indenture Trustee],
or convey the Indenture Trustee's interest in the same, in a manner and under
circumstances that are not inconsistent with the provisions of this Indenture
and the Security Agreement [Indenture Trustee]. No party relying upon an
instrument executed by the Indenture Trustee as provided in this Article VIII
------------
shall be bound to ascertain the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
moneys.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due to the Certificateholders pursuant to Section
-------
5.02(a) of the Sale and Servicing Agreement, or to the Servicer, the Indenture
-------
Trustee, the Owner Trustee or the Custodian pursuant to Section 5.01(c) of the
---------------
Sale and Servicing Agreement, shall have been paid, release any remaining
portion of the Collateral that secured the Notes from the lien of this Indenture
and the Security Agreement [Indenture Trustee] and release to the Issuer Trust
or any other Person entitled thereto any funds then on deposit in the Trust
Accounts. The Indenture Trustee shall release property from the lien of this
Indenture and the Security Agreement [Indenture Trustee] pursuant to this
Subsection (b) only upon receipt of an Issuer Request accompanied by an
--------------
Officer's Certificate and an Opinion of Counsel meeting the applicable
requirements of Section 11.01 hereof.
-------------
Section 8.06. Opinion of Counsel. The Indenture Trustee shall
------------------
receive at least seven days' prior notice when requested by the Issuer Trust to
take any action pursuant to Section 8.05(a) hereof, accompanied by copies of any
---------------
instruments involved, and the Indenture Trustee shall also receive, as a
condition to such action, an Opinion of Counsel, in form and substance
satisfactory to the Indenture Trustee, stating the legal effect of any such
action, outlining the steps required to complete the same, and concluding that
all conditions precedent to the taking of such action have been complied with
and such action will not materially and adversely impair the security for the
Notes or the rights of the Noteholders in contravention of the provisions of
this Indenture; provided, however, that such Opinion of Counsel shall not be
-------- -------
required to express an opinion as to the fair value of the Collateral. Counsel
rendering any such opinion may rely, without independent investigation, on the
accuracy and validity of any
C-39
certificate or other instrument delivered to the Indenture Trustee in connection
with any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Noteholders.
------------------------------------------------------
(A) Without the consent of any Noteholder but with prior notice to the Rating
Agency, the Issuer Trust and the Indenture Trustee, when authorized by an Issuer
Order, at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Indenture Trustee, for any of
the following purposes:
(i) to correct or amplify the description of any property at any
time subject to the lien of this Indenture or the Security Agreement
[Indenture Trustee], or to better assure, convey and confirm unto the
Indenture Trustee any property subject or required to be subjected to the
lien of this Indenture or the Security Agreement [Indenture Trustee], or to
subject to the lien of this Indenture and the Security Agreement [Indenture
Trustee] additional property;
(ii) to evidence the succession, in compliance with the applicable
provisions hereof, of another person to the Issuer Trust, and the
assumption by any such successor of the covenants of the Issuer Trust
herein and in the Notes contained;
(iii) to add to the covenants of the Issuer Trust, for the benefit of
the Noteholders, or to surrender any right or power herein conferred upon
the Issuer Trust;
(iv) to convey, transfer, assign, mortgage or pledge any property to
or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture that may be inconsistent with any
other provision herein or in any supplemental indenture or to make any
other provisions with respect to matters or questions arising under this
Indenture or in any supplemental indenture; provided, however, that such
-------- -------
action shall not adversely affect the interests of the Noteholders; or
(vi) to evidence and provide for the acceptance of the appointment
hereunder by a successor trustee with respect to the Notes and to add to or
change any of the provisions of this Indenture as shall be necessary to
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI hereof.
The Indenture Trustee is hereby authorized to join in the execution of
any such supplemental indenture and to make any further appropriate agreements
and stipulations that may be therein contained.
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(b) The Issuer Trust and the Indenture Trustee, when authorized by an
Issuer Order, may, also without the consent of any Noteholder but with the prior
consent of the Rating Agency, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of modifying in any
manner the rights of the Noteholders under this Indenture; provided, however,
-------- -------
that such action shall not, as evidenced by (i) an Opinion of Counsel or (ii)
satisfaction of the Rating Agency Condition, adversely affect in any material
respect the interests of any Noteholder.
Section 9.02. Supplemental Indentures with Consent of Noteholders.
---------------------------------------------------
The Issuer Trust and the Indenture Trustee, when authorized by an Issuer Order,
also may, with prior consent of the Rating Agency, and with the consent of the
Majority Noteholders, by Act of such Noteholders delivered to the Issuer Trust
and the Indenture Trustee, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of modifying in any
manner the rights of the Noteholders under this Indenture; provided, however,
-------- -------
that no such supplemental indenture shall, without the consent of each
Noteholder:
(a) change the date of payment of any installment of principal or
interest on any Note, or reduce the Principal Balance thereof, the interest rate
thereon or the Termination Price with respect thereto, change the provisions of
this Indenture relating to the application of collections on, or the proceeds of
the sale of, the Collateral to payment of principal or interest on the Notes, or
change any place of payment where, or the coin or currency in which, any Note or
the interest thereon is payable, or impair the right to institute suit for the
enforcement of the provisions of this Indenture requiring the application of
funds available therefor, as provided in Article V hereof, to the payment of any
---------
such amount due on the Notes on or after the due date thereof (or, in the case
of redemption, on or after the Redemption Date);
(b) reduce the percentage of the Voting Interests of the Outstanding
Notes, the consent of the Holders of which is required for any such supplemental
indenture, or the consent of the Holders of which is required for any waiver of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture;
(c) modify or alter the provisions of the proviso to the definition
of the term "Outstanding" or "Voting Rights";
(d) reduce the percentage of the Voting Rights of the Notes required
to direct the Indenture Trustee to direct the Issuer Trust to sell or liquidate
the Collateral pursuant to Section 5.04 hereof;
------------
(e) modify any provision of this Section except to increase any
percentage specified herein or to provide that certain additional provisions of
this Indenture or the Basic Documents cannot be modified or waived without the
consent of the Holder of each Outstanding Note affected thereby;
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(f) modify any of the provisions of this Indenture in such manner as
to affect the calculation of the amount of any payment of interest or principal
due on any Note on any Distribution Date or to affect the rights of the
Noteholders to the benefit of any provisions for the mandatory redemption of the
Notes contained herein; or
(g) permit the creation of any lien ranking prior to or on a parity
with the lien of this Indenture with respect to any of the Revenue Agreements
or, except as otherwise permitted or contemplated herein, terminate the lien of
this Indenture on any property at any time subject hereto or deprive any
Noteholder of the security provided by the lien of this Indenture.
In connection with requesting the consent of the Noteholders pursuant
to this Section 9.02, the Indenture Trustee shall mail to the Noteholders a
------------
notice setting forth in general terms the substance of such supplemental
indenture. It shall not be necessary for any Act of Noteholders under this
Section 9.02 to approve the particular form of any proposed supplemental
------------
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 9.03. Execution of Supplemental Indentures. In executing, or
------------------------------------
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created
----------
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.01 and 6.02 hereof, shall be fully protected in relying
------------- ----
upon, an Officer's Certificate and an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Indenture Trustee may, but shall not be obligated to, enter into
any such supplemental indenture that affects the Indenture Trustee's own rights,
duties, liabilities or immunities under this Indenture or otherwise.
Section 9.04. Effect of Supplemental Indentures. Upon the
---------------------------------
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be, and shall be deemed to be, modified and amended in
accordance therewith, and the respective rights, limitations of rights,
obligations, duties, liabilities and immunities under this Indenture of the
Indenture Trustee, the Issuer Trust and the Noteholders shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be, and shall be deemed to be, part of the terms
and conditions of this Indenture for any and all purposes.
Section 9.05. Reference in Notes to Supplemental Indentures. Notes
---------------------------------------------
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
----------
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer Trust or the
Indenture Trustee shall so determine, new Notes so modified as to conform, in
the opinion of the Indenture Trustee and the Issuer Trust, to any
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such supplemental indenture may be prepared and executed by the Issuer Trust and
authenticated and delivered by the Indenture Trustee in exchange for Outstanding
Notes.
Section 9.06. Amendments to Trust Agreement.
-----------------------------
Subject to Section 11.1 of the Trust Agreement, the Indenture Trustee
------------
shall, upon receipt of an Issuer Order, consent to any proposed amendment to the
Trust Agreement or an amendment to or waiver of any provision of any other
document relating to the Trust Agreement, such consent to be given without the
necessity of obtaining the consent of any Noteholder upon satisfaction of the
requirements set forth under Section 11.1 of the Trust Agreement. Nothing in
-------------
this Section shall be construed to require that any Person obtain the consent of
the Indenture Trustee to any amendment or waiver or any provision of any
document where the making of such amendment or the giving of such waiver without
obtaining the consent of the Indenture Trustee is not prohibited by this
Indenture or by the terms of the document that is the subject of the proposed
amendment or waiver.
ARTICLE X
REDEMPTION OF NOTES
Section 10.01. Mandatory Redemption.
--------------------
The Notes are subject to mandatory redemption, in whole but not in
part, at the Mandatory Redemption Price, as follows: (i) in the event that
Insurance Proceeds are paid in respect of substantial damage to the New Arena
Facility and the Servicer has certified to the Indenture Trustee that such
damage is irreparable; (ii) in the event that Condemnation Proceeds are paid in
respect of a substantial portion of the New Arena Facility, and the Servicer has
certified to the Indenture Trustee that such property is irreplaceable and that
the remaining property is inadequate for continued use as a first class sports
arena facility; (iii) subject to the receipt by the Indenture Trustee of the
prior written consent of the Majority Noteholders in accordance with Section
-------
11.04, in the event that any Revenue Contractor becomes entitled to terminate
-----
its payment obligations under its respective Revenue Agreement due to any breach
or termination of any User Agreement by the applicable Team Owner and the
failure of the Arena Company to thereafter replace the applicable Team with
another NBA or NHL team within the grace periods provided for in such Revenue
Agreements; and (iv) subject to the receipt by the Indenture Trustee of the
prior written consent of the Majority Noteholders in accordance with Section
-------
11.04, in the event of a failure by the Arena Company to complete construction
-----
of the New Arena Facility by the Outside Completion Date. Upon the occurrence of
the events described, all available funds in the Trust Accounts on the Mandatory
Redemption Date will be applied to pay the Mandatory Redemption Price. Upon the
occurrence of the events described in clauses (iii) or (iv), the Transferor
shall be liable to the Noteholders for any shortfall in the Mandatory Redemption
Price to be paid after application of all funds available in the Collection
Account. In the event of a partial casualty or condemnation, any insurance or
condemnation proceeds payable to the Indenture Trustee shall be deposited in the
Collection Account and paid as described in the Sale and Servicing Agreement.
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Section 10.02. Redemption at the Option of the Issuer; Election to
---------------------------------------------------
Redeem.
------
The Notes are subject to redemption in whole, but not in part, at the
direction of the Majority Certificateholders on any Distribution Date or Monthly
Distribution Date on or after the Distribution Date in July, 2001, by causing
the Issuer Trust to give notice pursuant to Section 10.03 hereof.
-------------
Payments of interest and Targeted Principal Payments due prior to the
Redemption Date, shall continue to be payable to the Holders of the Notes called
for redemption as of the relevant Record Dates according to their terms and the
provisions hereof.
Section 10.03. Notice to Indenture Trustee; Deposits Into the
----------------------------------------------
Collection Account.
------------------
Upon the occurrence of the events causing a Mandatory Redemption as
described in Section 10.01 and receipt of sufficient funds therefor in the
-------------
Collection Account, the Indenture Trustee shall notify the Issuer Trust, the
Securityholders and the Rating Agency of the Mandatory Redemption Date at least
30 days and no more than 60 days prior to the Mandatory Redemption Date.
In the event of any redemption pursuant to Section 10.01 or Section
------------- -------
10.02 hereof, the Servicer on behalf of the Issuer Trust shall, at least 30 days
and no more than 60 days, prior to the Mandatory Redemption Date or the Optional
Redemption Date, as applicable, notify the Indenture Trustee and the Rating
Agency of such Redemption Date and shall cause to be deposited into the
Collection Account on such notification date an amount equal to the aggregate of
(i) Mandatory Redemption Price or the Optional Redemption Price, as applicable,
(ii) any Trust Fees and Expenses due and unpaid as of the Redemption Date and
(iii) any other amounts payable to the Noteholders and the Indenture Trustee
under the Basic Documents.
Section 10.04. Notice of Redemption by the Indenture Trustee.
---------------------------------------------
Upon receipt of the notice and the deposits set forth in Section 10.03
-------------
above, the Indenture Trustee shall provide notice of redemption by first-class
mail, postage prepaid, mailed no later than the Business Day following the day
on which such deposit was made, to each Holder of record on the Record Date next
preceding such Business Day, at such Holder's address appearing in the Note
Register.
All notices of redemption shall identify the Notes (including CUSIP
numbers) to be redeemed and shall state:
(1) the Redemption Date;
(2) the Optional Redemption Price or Mandatory Redemption Price, as
applicable and the amount thereof allocable to the Original Principal Balance of
a Note; and
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(3) that on the Redemption Date, a pro rata portion of the Optional
Redemption Price or the Mandatory Redemption Price, as applicable, will become
due and payable upon each such Note, and that interest thereon shall cease to
accrue on such date.
Notice of redemption of Notes shall be given by the Indenture Trustee
in the name and at the expense of the Issuer Trust. Failure to give notice of
redemption, or any defect therein, to any Noteholder shall not impair or affect
the validity of the redemption of any other Note.
Section 10.05. Notes Payable on Optional Redemption Date or
--------------------------------------------
Mandatory Redemption Date.
-------------------------
Notice of redemption having been given as provided in Section 10.04
-------------
hereof, the Notes to be redeemed shall, on the Redemption Date, become due and
payable at the Optional Redemption Price or the Mandatory Redemption Price, as
applicable, and on such date of redemption (unless the Issuer Trust shall
default in the payment of the Optional Redemption Price), such Notes shall cease
to bear interest.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Compliance Certificates and Opinions, etc. (a) Upon
-----------------------------------------
any application or request by the Issuer Trust to the Indenture Trustee to take
any action under any provision of this Indenture, the Issuer Trust shall furnish
to the Indenture Trustee (i) an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and (ii) an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with except that, in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each signatory of such certificate or opinion
has read or has caused to be read such covenant or condition and
the definitions herein or in the Sale and Servicing Agreement
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(3) a statement that, in the opinion of each such signatory, such
signatory has made such examination or investigation as is
necessary to enable
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such signatory to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such signatory,
such condition or covenant has been complied with.
Section 11.02. Form of Documents Delivered to Indenture Trustee.
------------------------------------------------
In any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one Person, or that they be
so certified or covered by only one document, but one Person may certify or give
an opinion with respect to some matters and one or more other Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer
Trust may be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate of an
Authorized Officer or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Servicer, the Transferor or the Issuer Trust, stating
that the information with respect to such factual matters is in the possession
of the Servicer, the Transferor or the Issuer Trust, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated into
one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
Trust shall deliver any document as a condition of the granting of such
application, or as evidence of the Issuer Trust's compliance with any term
hereof, it is intended that the truth and accuracy, at the time of the granting
of such application or at the effective date of such certificate or report (as
the case may be), of the facts and opinions stated in such document shall in
such case be conditions precedent to the right of the Issuer Trust to have such
application granted or to the sufficiency of such certificate or report. The
foregoing shall not, however, be construed to affect the Indenture Trustee's
right to rely upon the truth and accuracy of any statement or opinion contained
in any such document as provided in Article VI hereof.
----------
Section 11.03. Acts of Noteholders. (a) Any request, demand,
-------------------
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Noteholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Noteholders in person or by agents duly appointed in writing; and except as
herein otherwise expressly provided, such action shall become effective
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when such instrument or instruments are delivered to the Indenture Trustee, and,
where it is hereby expressly required, to the Issuer Trust. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Noteholders signing such instrument or
---
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.01 hereof) conclusive in favor of the Indenture
------------
Trustee and the Issuer Trust, if made in the manner provided in this Section
-------
11.03.
-----
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by examination of the Note
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by any Noteholder shall bind the Holder of every Note
issued upon the registration thereof or in exchange therefor or in lieu thereof,
in respect of anything done, omitted or suffered to be done by the Indenture
Trustee or the Issuer Trust in reliance thereon, whether or not notation of such
action is made upon such Note.
Section 11.04. Notices, etc., to Indenture Trustee, Issuer Trust and
-----------------------------------------------------
Rating Agency. Any request, demand, authorization, direction, notice, consent,
-------------
waiver or Act of Noteholders or other documents provided or permitted by this
Indenture shall be in writing and if such request, demand, authorization,
direction, notice, consent, waiver or act of Noteholders is to be made upon,
given or furnished to or filed with:
(i) the Indenture Trustee by any Noteholder or by the Issuer Trust
shall be sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Indenture Trustee at its Corporate Trust
Office, or
(ii) the Issuer Trust by the Indenture Trustee or by any Noteholder
shall be sufficient for every purpose hereunder if in writing and made,
given, furnished or filed with the Issuer Trust addressed to: Denver Arena
Trust, c/o Wilmington Trust Company, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at any other address previously furnished in writing to
the Indenture Trustee by the Issuer Trust. The Issuer Trust shall promptly
transmit any notice received by it from the Noteholders to the Indenture
Trustee.
Notices required to be given to the Rating Agency by the Issuer Trust,
the Indenture Trustee or the Owner Trustee shall be in writing, personally
delivered or mailed by certified mail, return receipt requested, to Fitch IBCA,
Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ABS
Surveillance Group.
Section 11.05. Notices to Noteholders; Waiver. Where this Indenture
------------------------------
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each
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Noteholder, at the applicable address as it appears on the Note Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. In any case where notice to Noteholders is given
by mail, neither the failure to mail such notice nor any defect in any notice so
mailed to any particular Noteholder shall affect the sufficiency of such notice
with respect to other Noteholders, and any notice that is mailed in the manner
herein provided shall conclusively be presumed to have duly been given.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
In the event that, by reason of the suspension of regular mail service
as a result of a strike, work stoppage or similar activity, it shall be
impractical to mail notice of any event to Noteholders when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Indenture Trustee
shall be deemed to be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agency, failure
to give such notice shall not affect any other rights or obligations created
hereunder, and shall not under any circumstance constitute a Default or Event of
Default.
Section 11.06. Effect of Headings and Table of Contents. The Article
----------------------------------------
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 11.07. Successors and Assigns. All covenants and agreements
----------------------
in this Indenture and the Notes by the Issuer Trust shall bind its successors
and assigns, whether so expressed or not. All agreements of the Indenture
Trustee in this Indenture shall bind its successors, co-trustees and agents.
Section 11.08. Separability. In case any provision in this Indenture
------------
or in the Notes shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 11.09. Benefits of Indenture. Nothing in this Indenture or
---------------------
in the Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, and the Noteholders, and any
other party secured hereunder, and any other Person with an ownership interest
in any part of the Collateral, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section 11.10. Legal Holidays. In any case where the date on which
--------------
any payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the date on which
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nominally due, and no interest shall accrue for the period from and after any
such nominal date.
Section 11.11. GOVERNING LAW. THIS INDENTURE SHALL BE GOVERNED AND
-------------
CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
Section 11.12. Counterparts. This Indenture may be executed in any
------------
number of counterparts, each of which so executed shall be deemed to be an
original, and all of such counterparts shall together constitute but one and the
same instrument.
Section 11.13. Recording of Indenture. If this Indenture is subject
----------------------
to recording in any public recording offices, such recording is to be effected
by the Issuer Trust and at its expense accompanied by an Opinion of Counsel to
the effect that such recording is necessary either for the protection of the
Noteholders or any other Person secured hereunder or for the enforcement of any
right or remedy granted to the Indenture Trustee under this Indenture.
Section 11.14. Trust Obligation. No recourse may be taken, directly
----------------
or indirectly, with respect to the obligations of the Issuer Trust, the Owner
Trustee or the Indenture Trustee on the Notes or, except as expressly provided
for in Article VI hereof, under this Indenture or any certificate or other
----------
writing delivered in connection herewith or therewith, against (i) the Indenture
Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer Trust or (iii) any partner, owner,
beneficiary, agent, officer, director, employee or agent of the Indenture
Trustee or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer Trust, the Owner Trustee or the Indenture
Trustee or of any successor or assign of the Indenture Trustee or the Owner
Trustee in its individual capacity, except as any such Person may expressly have
agreed (it being understood that the Indenture Trustee and the Owner Trustee
have no such obligations in their individual capacity) and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity. For
all purposes of this Indenture, in the performance of any duties or obligations
of the Issuer Trust hereunder, the Owner Trustee shall be subject to, and be
entitled to the benefits of, the terms and provisions of Articles VI, VII and
VIII of the Trust Agreement.
Section 11.15. Inspection. The Issuer Trust agrees that, on
----------
reasonable prior notice, it will permit any representative of the Indenture
Trustee, during the Issuer Trust's normal business hours, to examine all the
books of account, records, reports and other papers of the Issuer Trust, to make
copies and extracts therefrom, to cause such books to be audited by Independent
certified public accountants, and to discuss the Issuer Trust's affairs,
finances and accounts with the Issuer Trust's officers, employees, and
Independent certified public accountants, all at such reasonable times and as
often as may reasonably be requested. The Indenture Trustee shall hold, and
shall cause its representatives to hold, in confidence all such information
except to the extent disclosure may be required by law (and all reasonable
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applications for confidential treatment are unavailing) and except to the extent
that the Indenture Trustee may reasonably determine that such disclosure is
consistent with its obligations hereunder.
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IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Issuer Trust,
and the Indenture Trustee have caused this Indenture to be duly executed by
their respective officers, thereunto duly authorized, all as of the day and year
first above written.
DENVER ARENA TRUST
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK, as Indenture Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Consented to and Approved by:
ASCENT ARENA COMPANY, LLC,
in its capacity as Servicer under the
Sale and Servicing Agreement
By: Ascent Arena and Development Corporation,
a Delaware corporation, as managing member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
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