ORD 34272 - Formation of City of Omaha Northwest Library Facilities Corporation Ao �, Finance Department "
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OMAHA, NEBRASKA Louis A.D'Ercole
City of Omaha
Director
Hal Daub,Mayor
July 22, 1997
Honorable President
and Members of the City Council,
This Ordinance authorizes and approves the formation of the City of Omaha Northwest Library
Facilities Corporation, a nonprofit corporation. The corporation is organized for the purpose of
assisting the City with the acquisition, construction, furnishing and equipping of public library
facilities within the geographical boundaries of the City of Omaha, Nebraska; authorizing and
approving a lease-purchase agreement(the "Agreement")between the corporation and the City of
Omaha to provide funds for the lease-purchase of three public library facilities. A copy of this -
Agreement is attached to the Ordinance as Exhibit A; authorizing and approving a lease agreement
(the "Lease") between the corporation and the City for the leasing of the project sites by the City,
approving an indenture of trust; and, approving the terms and conditions of the corporation's lease
revenue bonds(Benson Library Project,Millard Library Project,and W.Dale Clark Library Project).
We urge your favorable consideration of this Ordinance.
Respectfully submitted Referred to City Council for Consideration:
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Louis A. D'Ercole Date Mayors ffice,Title Date
Finance Director
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ORDINANCE NO. . 79
AN ORDINANCE APPROVING AND RATIFYING THE FORMATION OF
CITY OF OMAHA NORTHWEST LIBRARY FACILITIES CORPORATION,
A NONPROFIT CORPORATION ORGANIZED UNDER THE LAWS OF THE
STATE OF NEBRASKA (THE "CORPORATION"), FOR THE PURPOSE OF
ASSISTING THE CITY WITH THE ACQUISITION, CONSTRUCTION,
IMPROVING, FURNISHING AND EQUIPPING OF PUBLIC LIBRARY
FACILITIES WITHIN THE GEOGRAPHICAL BOUNDARIES OF THE CITY
OF OMAHA, NEBRASKA; AUTHORIZING AND APPROVING A
LEASE-PURCHASE AGREEMENT (THE "AGREEMENT") BETWEEN THE
CORPORATION AND THE CITY OF OMAHA, NEBRASKA (THE "CITY")
TO PROVIDE FUNDS FOR THE LEASE-PURCHASE OF THREE PUBLIC
LIBRARY FACILITIES AS DESCRIBED THEREIN (THE "PROJECTS"), A
COPY OF WHICH AGREEMENT IS ATTACHED HERETO AS EXHIBIT A
AND INCORPORATED HEREIN BY THIS REFERENCE; AUTHORIZING
AND APPROVING A SITE LEASE AGREEMENT (THE "LEASE")
BETWEEN THE CORPORATION AND THE CITY FOR THE LEASING OF
THE PROJECT SITES BY THE CITY TO THE CORPORATION, A COPY OF
WHICH LEASE IS ATTACHED HERETO AS EXHIBIT B AND
INCORPORATED HEREIN BY THIS REFERENCE; APPROVING AN
INDENTURE OF TRUST (THE "INDENTURE") BY AND BETWEEN THE
CORPORATION AND FIRST NATIONAL BANK OF OMAHA, AS
TRUSTEE, A COPY OF WHICH INDENTURE IS ATTACHED HERETO AS
EXHIBIT C AND INCORPORATED HEREIN BY THIS REFERENCE;
APPROVING THE TERMS AND CONDITIONS OF THE CORPORATION'S
LEASE REVENUE BONDS (OMAHA PUBLIC LIBRARY PROJECTS),
SERIES 1997 (THE "BONDS") AS SET FORTH IN THE INDENTURE AND
THE ISSUANCE AND DELIVERY THEREOF; AUTHORIZING AND
APPROVING THE FORM AND CONTENT OF A LETTER AGREEMENT
(THE "LETTER AGREEMENT") CONSTITUTING AN UNDERTAKING BY
THE CITY TO PROVIDE ONGOING DISCLOSURE ABOUT THE CITY FOR
THE BENEFIT OF THE HOLDERS OF THE BONDS, A COPY OF WHICH
LETTER AGREEMENT IS ATTACHED HERETO AS EXHIBIT D AND
INCORPORATED HEREIN BY THIS REFERENCE; SATISFYING
APPLICABLE FEDERAL INCOME TAX LAW REQUIREMENTS AND
APPROVING THE EFFECTIVE DATE HEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
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ORDINANCE NO. 3'/.27 2-
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ARTICLE I
FINDINGS AND DETERMINATIONS
The Mayor and Council of the City of Omaha hereby find and determine:
(a) the City of Omaha, Nebraska (the "City") wishes to acquire, construct, equip and
furnish expansions and improvements to certain facilities to be used for public library facilities
(the "Projects"); and,
(b) the City intends that certain parcels of real estate, including the buildings and
structures, if any, thereupon, owned or to be owned by the City and located within the
geographical boundaries of the City of Omaha, Nebraska and to be legally described in the
hereinafter defined Lease (the "Project Sites"), constitute a part of and be the location of the
Projects; and,
(c) the City of Omaha Northwest Library Facilities Corporation, a nonprofit
corporation organized under Nebraska law (the "Corporation"), has been established for the
purpose of assisting the City in the acquisition and improvement of public library facilities within
the geographical boundaries of the City of Omaha, Nebraska; and,
(d) the Corporation has previously issued its $2,260,000 original principal amount
Building Refunding Bonds, Series 1994 on behalf of the City, a portion of which remains
outstanding; and,
(e) the Corporation is willing (i) to issue its lease revenue bonds in the aggregate
principal amount not to exceed $8,000,000 (the "Bonds") on behalf of the City, the proceeds of
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ORDINANCE NO.3 2zz
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which Bonds will be used, in part, to acquire, construct, furnish and equip the Projects and (ii)
to lease the Projects to the City; and,
(f) the Corporation is willing to enter into an Indenture of Trust (the "Indenture")
with First National Bank of Omaha, as trustee (the "Trustee"), setting forth the maturity, interest
rate or rates and other terms and conditions of the Bonds; and,
(g) the City and the Corporation, pursuant to Section 5.17 of the Home Rule Charter
of the City of Omaha, 1956, as amended (the "Home Rule Charter"), contemplate entering into
a Site Lease Agreement (the "Lease") whereby the Corporation will lease the Project Sites from
the City and a Lease-Purchase Agreement (the "Agreement") whereby the City will lease the
Projects from the Corporation and pay as rental payments the amounts necessary timely to
discharge the indebtedness created by the Corporation's issuance of the Bonds; and,
(h) under applicable Internal Revenue Service rulings, approval by the City Council
of the issuance of the Bonds by the Corporation is required in order that the interest on the
Bonds be excluded from gross income of the holders for the purpose of federal income taxation,
which exclusion will reduce the Corporation's interest costs and thereby reduce the rental
payments to be made by the City under the Agreement; and,
(i) the Corporation has requested Kirkpatrick Pettis, Smith, Polian Inc. (the
"Underwriter") to underwrite the Bonds; and,
(j) in order that the Underwriter may comply with Section (b)(5)(i)of Securities and
Exchange Commission Rule 15c2-12 (17 C.F.R., § 240.15c2-12) (the "Rule"), the City will
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ORDINANCE NO. 312 72
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enter into the Letter Agreement (the "Letter Agreement") with the Trustee pursuant to which the
City will agree to provide ongoing disclosure about the City for the benefit of the holders of the
Bonds; and,
(k) the City has determined that it is in its best interest that the Corporation issue the
Bonds and apply the proceeds thereof to the acquisition, construction, furnishing and equipping
of the Projects and that it is necessary for the City to enter into the Agreement, the Lease and
the Letter Agreement, approve the Indenture and satisfy certain requirements of federal income
tax law in order that the interest on the Bonds shall be excluded from gross income of the
holders for purposes of federal income taxation.
ARTICLE II
AUTHORIZATIONS AND APPROVALS
Section 1. The previous formation of the Corporation is hereby acknowledged, approved
and ratified by the City Council and the Corporation is authorized to do that which is necessary
and appropriate in order that the Corporation may issue the Bonds on behalf of the City for the
purpose of acquiring, constructing, furnishing and equipping the Projects.
Section 2. The Agreement is hereby authorized and approved in accordance with the
provisions of Section 5.17 of the Home Rule Charter and the Mayor of the City shall execute
the Agreement by and on behalf of the City, with the official seal of the City impressed or
imprinted thereon and attested by the City Clerk, in substantially the form presented to the City
Council and attached hereto as Exhibit A, subject to such changes, insertions and omissions and
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fillings-in of blanks as shall have been approved by the City officials executing the same
pursuant to this Section.
Section 3. The Lease is hereby authorized and approved and the Mayor of the City shall
execute the Lease by and on behalf of the City, with the official seal of the City impressed or
imprinted thereon and attested by the City Clerk, in substantially the form presented to the City
Council and attached hereto as Exhibit B, subject to such changes, insertions and omissions and
fillings-in of blanks as shall have been approved by the City officials executing the same
pursuant to this Section.
Section 4. The Indenture, in substantially the form presented to the City Council and
attached hereto as Exhibit C, is hereby authorized and approved.
Section 5. The Letter Agreement is hereby authorized and approved and the Mayor of
the City shall execute the Letter Agreement by and on behalf of the City, with the official seal
of the City impressed or imprinted thereon and attested by the City Clerk, in substantially the
form presented to the City Council and attached hereto as Exhibit D, subject to such changes,
insertions and omissions and fillings-in of blanks as shall have been approved by the City
officials executing the same pursuant to this Section.
Section 6. Payment by the City of the lease-rental amounts from time to time due under
and pursuant to the Agreement is hereby preliminarily approved, subject to final approval by
subsequent resolution of this City Council.
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Section 7. The issuance and delivery by the Corporation of the Bonds in the aggregate
principal amount, bearing interest at the rates per annum and otherwise on the terms and
conditions set forth in the Indenture is hereby preliminarily approved, subject to final approval
of the terms of the Bonds, a bond purchase agreement, the final Official Statement and related
matters by subsequent resolution of this City Council.
Section 8. (a) The Mayor, City Clerk and Finance Director (or any officer of the City
authorized to act in the capacity of Mayor, City Clerk or Finance Director) are hereby
authorized and directed punctually to execute such instruments, certificates and documents as
may be necessary and appropriate and to do all acts and things required therein by the terms,
covenants, provisions and agreements of this Ordinance, the Bonds, the Agreement, the Lease,
the Indenture and the Letter Agreement.
(b) The officers, employees and agents of the City are hereby authorized and directed
to do all acts and things necessary to carry into effect the provisions of this Ordinance.
Section 10. The City will accept delivery of full legal and unencumbered title to the
Projects at the end of the term of the Bonds.
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ORDINANCE NO. J -2 72—
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ARTICLE III
EFFECTIVE DATE
This Ordinance shall be in full force and effect on the date of its passage, this Ordinance
not being legislative in character and immediate effectiveness being within the provisions•of
Section 2.12 of the Home Rule Charter.
INTRO BY COUNCILMEMBER
APPROVED BY:
PASSED AUG 5 Off ,( —GE4n, "' �"4 / }-, 4,14 ,11,7
A R OF THE DATE
CITY OF OMAHA
ATTEST:
I Y CL K OF E CITY OF OMAHA
APPROVED AS TO FORM:
. ITY RNEY
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02�7 p7C/cs'/97 oar
Exhibit A
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CITY OF OMAHA NORTHWEST LIBRARY FACILITIES CORPORATION,
as Lessor
• to
CITY OF OMAHA, NEBRASKA,
as Lessee
LEASE-PURCHASE AGREEMENT
Dated as of August 1, 1997
Return Copy to:
ATI Title Company
3154 South 19th Street
Omaha, NE 68102
Attention:
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LEASE-PURCHASE AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is not a part of the Lease-Purchase Agreement and is for
convenience of reference.)
Page
RECITALS
1
Section 1. Term of Lease / 1
Section 2. Rental Payments 2
Section 3. Place of Payment and Assignment of Rentals 4
Section 4. Repairs and Maintenance 4
Section 5. Insurance, Damage or Destruction 5
Section 6. Condemnation 1 6
Section 7. Indemnification of Corporation 6
Section 8. Corporation's Right of Inspection 7
Section 9. Alterations, Additions and Improvements 7
Section 10. Use of Premises 7
Section 11. Subletting 7
Section 12. No Right of Surrender 8
Section 13. Acquisition of the Project 8
Section 14. Termination of Leasehold 10
Section 15. Default 10
Section 16. Donations to City 11
Section 17. Financing 11
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Section 18. Amendment of This Agreement 11
Section 19. Refund of Sales Tax 11
Section 20. Discrimination 12
Section 21. Authority of Parties 12
Section 22. Compliance With Laws 12
Section 23. Notices 12
Section 24. Waiver 12
Section 25. No Merger 13
Section 26. Benefit 13
Section 27. Section Captions 13
TESTIMONIUM, SIGNATURES, AND SEALS 13
EXHIBIT A—Schedule of Basic Rent Payable by the City of Omaha, Nebraska
APPENDIX A—Leasehold Property Description—Millard Project
APPENDIX B—Leasehold Property Description—Benson Project
APPENDIX C—Leasehold Property Description—W. Dale Clark Project
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LEASE-PURCHASE AGREEMENT
THIS LEASE-PURCHASE AGREEMENT is made and entered into as of this 1st day
of August, 1997 by and between CITY OF OMAHA NORTHWEST LIBRARY FACILITIES
CORPORATION, a Nebraska nonprofit corporation ("Corporation"), and the CITY OF
OMAHA, NEBRASKA, a municipal corporation ("City").
RECITALS:
Corporation hereby leases to City (i) the property described at Appendix A hereto,
together with all improvements of every kind and description, including such buildings,
structures, fixtures, equipment and personal property thereon and any property of every kind,
whether real or personal, as may, during the term hereof, be situated thereon (the "Millard
Project") and (ii) the property described at Appendix B hereto, together with all improvements
of every kind and description, including such buildings, structures, fixtures, equipment and
personal property thereon and any property of every kind, whether real or personal, as may,
during the term hereof, be situated thereon (the "Benson Project"), (iii) the property described
at Appendix C hereto, together with all improvements of every kind and description, including
such buildings, structures, fixtures, equipment and personal property thereon and any property
of every kind, whether real or personal, as may, during the term hereof, be situated thereon (the
"W. Dale Clark Project," and together with the Millard Project and the Benson Project, the
"Project").
Section 1. Term of Lease. The term of this Lease-Purchase Agreement (this
"Agreement") shall be approximately 20 years beginning as of the date hereof and ending on
August 15, 2017, unless sooner terminated as hereinafter provided.
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Section 2. Rental Payments.
(a) Basic Rent. City shall pay to Corporation cash Basic Rent in the amounts
and on or before the dates shown on Exhibit A which is attached hereto and made a part
hereof by this reference. It is the intention of Corporation and City that the Basic Rent
herein specified shall be net to Corporation in each year during the term of this
Agreement, that all costs, expenses and obligations of every kind (except as otherwise
specifically provided in this Agreement) which may arise or become due with respect to
the Project during the term of this Agreement shall be paid by City and that Corporation
shall be indemnified by City against all such costs, expenses and obligations. In addition
to Basic Rent, City agrees to pay as Additional Rent the items set forth below under (b).
If any Basic or Additional Rent (collectively, the "Rental Payments") is not paid when
due, such rent shall draw interest at the rate of 10% per annum from the due date until
paid.
(b) Additional Rent. City acknowledges:
(i) that under present law, no part of the Project will be subject to
taxation by the State of Nebraska or any political or taxing subdivision thereof;
that Corporation has relied on this factor, among others, in making this
Agreement but that, if the Project should be subject to taxation, City shall pay
such taxes so that the Basic Rent will be net to Corporation;
(ii) that to raise the funds to pay for the Project as provided in
Section 13 hereof, Corporation will issue its lease revenue bonds in the aggregate
principal amount of$8,000,000 (the "Bonds"), payable from the Basic Rent; that
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First National Bank of Omaha, as trustee ("Trustee"), will serve under the
Indenture of Trust dated as of August 1, 1997 between Trustee and Corporation
(the "Indenture") under which the Bonds shall be issued; and that there will be
fees and expenses due to Trustee which shall be payable by City; and
(iii) that there will be utility, operation, maintenance and other charges
incurred in the use of the Project which shall be paid by City.
Accordingly, City agrees to pay, as Additional Rent, the following:
(A) all taxes and assessments, general and special, levied or
assessed with respect to the Project, or any part thereof, during the term
hereof, including any taxes due on the commencement of the term hereof,
• and all water and sewer charges, assessments and other governmental
charges and impositions whatsoever, foreseen and unforeseen, and all
other utility, operation and maintenance charges incurred in the operation,
maintenance and use of the Project, with Corporation promptly forwarding
to City any notice, bill or other advice received by Corporation regarding
any such taxes, assessments or charges (provided that any failure by
Corporation so to forward any such notice, bill or other advice shall not
release City from its obligation to pay hereunder);
(B) the fees and expenses of Trustee under the Indenture
governing the issuance of the Bonds, with City paying such fees and
expenses as statements are rendered by Trustee to City; and
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(C) the expenses in connection with any audit or examination
of Corporation's records requested by City.
Section 3. Place of Payment and Assignment of Rentals. All Basic Rent shall be paid
directly to Trustee for the benefit of the owners of the Bonds issued by Corporation. Trustee
is the assignee of all of Corporation's rights to collect Basic Rent due hereunder, and, as such
assignee, Trustee may enforce Corporation's rights hereunder to collect and receive Basic Rent.
City shall have the right at its option, exercisable at any time, to prepay the Basic Rent
without prepayment penalty or premium and thereby to terminate this Agreement at any time
while not in default of this Agreement upon 30 days' prior written notice to Corporation and the
payment by City to Corporation (or to Trustee while any of the Bonds are outstanding) of an
amount sufficient to pay the principal of all then outstanding Bonds, plus any redemption
premium due on such Bonds on their first permitted redemption date, plus interest to accrue on
such Bonds to such redemption date. In such event, City shall continue to pay Trustee's fees
and the Additional Rent items as specified in Section 2(b) hereof until all Bonds are fully paid.
Section 4. Repairs and Maintenance. Throughout the term of this Agreement, City
shall, at its own expense (but insurance proceeds may be used), put and maintain the Project in
good and safe condition and will make or cause to be made all necessary repairs thereto, both
interior and exterior, structural and nonstructural, ordinary and extraordinary, however the
necessity or desirability for repairs may occur, and whether or not necessitated by fire, flood
or other casualty, wear, tear, obsolescence or defects, latent or otherwise. When used in this
Section, the term "repairs" shall include all necessary replacements, renewals, alterations and
betterments. All repairs made by City shall be at least equal in quality and class to the original
01/574934.2 4
work. City shall also, at its own expense, put and maintain in good and safe order, and free
from dirt, snow, ice, rubbish and other obstructions or encumbrances, the public sidewalks,
gutters and curbs within and adjacent to the Project.
Section 5. Insurance, Damage or Destruction. (a) City shall obtain and keep in force
during the term of this Agreement fire and extended coverage insurance with respect to the
Millard Project, the Benson Project and the W. Dale Clark Project, respectively, in an amount
at least equal to the full insurable value of the Millard Project, the Benson Project or the
W. Dale Clark Project, as applicable. The term "full insurable value," as used herein, shall
mean the actual replacement value or, at the option of City, any lesser amount which is equal
to or greater than the amount of all of the Bonds then outstanding. Such insurance shall name
City, Corporation and Trustee as insureds as their interest may appear. So long as City is not
in default hereunder, any loss shall be adjusted by and paid to City. City shall maintain
possession of the policies or certificates evidencing such insurance.
(b) Notwithstanding the foregoing, if City shall insure properties similar to the Project
by self insurance, City may, at its option, insure the Project, in whole or in part, by means of
an adequate self-insurance fund set aside and maintained out of its revenues.
(c) No damage to or destruction of any part of the Millard Project, the Benson Project
or the W. Dale Clark Project, whether by fire or any other casualty, shall entitle City to
terminate this Agreement or to fail to comply with any of its provisions or in any way suspend,
abate or reduce the Rental Payments then due or thereafter becoming due under the terms of this
Agreement as set forth in Section 2 hereof, unless City shall elect not to replace or restore the
Millard Project, the Benson Project or the W. Dale Clark Project, as applicable, and shall
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provide to Trustee funds sufficient to redeem a portion of the Bonds then outstanding in an
amount permitted pursuant to the Indenture.
(d) City shall deliver to the Trustee as named insured at or prior to the issuance of
the Bonds one or more owner's title insurance policies in the aggregate amount of $8,000,000
insuring that the City has fee simple title to the sites of the Millard Project, the Benson Project
and the W. Dale Clark Project.
Section 6. Condemnation. If at any time during the term of this Agreement the whole
or any part of the Millard Project, the Benson Project or the W. Dale Clark Project, including
the leasehold interest of the Corporation therein, shall be taken as a result of the exercise of the
power of eminent domain or by private purchase in lieu thereof, such taking shall in no way
affect the liability of City to pay the Rental Payments provided in Section 2 hereof and to
perform all of the other obligations of City hereunder, and City shall, at its own expense,
comply with all of the requirements in connection with such taking. Proceeds of any such
condemnation shall be paid to Corporation and applied on the last unpaid Basic Rent installment
for the Projects, unless City shall elect to have a portion of the Bonds redeemed in an amount
permitted by the Indenture.
Section 7. Indemnification of Corporation. City shall indemnify Corporation and any
of its officers, directors, agents or employees (collectively, the "Indemnified Parties") against
all liabilities, penalties, damages and expenses which may be imposed upon, incurred by or
asserted against the Indemnified Parties as a result of (a) City's performance of, or the failure
of City to perform, any obligation to be performed by City hereunder; (b) any use or condition
of the Project or any part thereof or any public street, alley, sidewalk, curb, passageway or
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space within or adjacent thereto; (c) any personal injury, including death resulting therefrom,
or property damage occurring on or about the Projects or any adjacent street, alley, sidewalk,
curb, passageway or space; (d) the failure of City to comply with any requirement of any
governmental authority; and (e) any construction lien or security agreement filed against the
Project or any part thereof.
Section 8. Corporation's Right of Inspection. Corporation, its agents and
representatives shall have the right to enter upon the Project at any reasonable time for the
purpose of inspection.
Section 9. Alterations, Additions and Improvements. City shall have the right to make
any alterations, additions or improvements to the Project, provided that any such alteration,
addition or improvement shall not cause a diminution of the value of the Project. Any
alterations, additions or improvements to the Project shall become a part of the Project and be
covered by this Agreement. In no event shall Corporation be obligated or required to make any
alterations, additions or improvements except as provided in Section 13 hereof.
Section 10. Use of Premises. The Project shall be used by City as public library
facilities and other such uses as City shall deem appropriate from time to time; provided,
however, that any other use of the Project shall not impair City's use of the Project as public
library facilities or the exclusion of interest on the Bonds from the gross income of the holders
thereof for federal income tax purposes.
Section 11. Subletting. City may sublet any part of the Project for any use consistent
with Section 10 hereof for a period not extending beyond the term of this Agreement; provided,
however, that such subletting may not impair City's use of the Project or the exclusion of
01/574934.2 7
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interest on the Bonds from the gross income of the holders thereof for federal income taxation
purposes. Such subletting shall not affect the obligation of City to pay the Rental Payments
required under Section 2 of this Agreement.
Section 12. No Right of Surrender. City shall have no right or privilege to surrender
the Project to Corporation, and City's abandonment of the Project or City's failure or inability
to use the Project at any time shall not relieve City of its obligation to pay the Rental Payments
required under Section 2 of this Agreement.
Section 13. Acquisition of the Project. Corporation agrees that it will acquire and
construct, or cause the acquisition and construction of, the Project, including the acquisition of
such improvements and related fixtures, furnishings, equipment and personal property as are
necessary for the Project to constitute improvements and additions to the Millard Branch
Library, the Benson Branch Library and the W. Dale Clark Library suitable for City's use. The
acquisition, construction, improving, furnishing and equipping of the Project shall be made in
accord with plans and specifications prepared by such Project architects and engineers with such
changes as may be made with the approval of City. Corporation shall have no responsibility for
the sufficiency of the Project or any part thereof. Corporation agrees to contribute toward the
cost of acquisition, construction, improving, furnishing and equipping of the Project such
proceeds of the sale of the Bonds as remain after the payment of expenses of issuing the Bonds.
Promptly after execution of this Agreement, Corporation will deposit the net proceeds of the sale
of the Bonds with Trustee to be disbursed in payment of costs of acquiring, constructing,
improving, furnishing and equipping the Project.
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A leasehold interest in and to the Project, including any and all buildings, improvements
and other property (but not including the Project site in which Corporation has a leasehold
interest pursuant to the Site Lease Agreement (the "Lease") dated as of August 1, 1997 between
City and Corporation), shall vest in Corporation as such property becomes a part of the Project,
and Corporation shall continue to have such interest therein until City has satisfied all of its
obligations to Corporation under this Agreement and the Project is conveyed to City.
Upon completion of the acquisition and construction of the Project, City shall furnish to
Corporation a complete description of all property, both real and personal, covered by this
Agreement. City hereby confirms Corporation's ownership interest in such property, regardless
of whether such property may be initially purchased by Corporation.
Corporation shall have no responsibility to pay any costs of acquiring and constructing
the Project in excess of the net proceeds of the sale of the Bonds and other moneys provided by
City to Corporation in respect of the Project.
City agrees that no delay, failure or insufficiency, for any reason whatsoever (including,
in particular, but without limitation, an insufficiency in the amount of Bond proceeds to pay the
cost of the Project), in the acquisition, construction or operation of the Project or any part
thereof, shall entitle City to terminate this Agreement or operate in any way to suspend, abate
or reduce the Rental Payments due or to become due under the terms of Section 2 of this
Agreement.
Corporation agrees that any and all amounts received by it from any contractor, supplier
or other person (or any surety under any bond) by reason of breach of contract, failure of
01/574934.2 9
performance, refunds or other adjustments shall be applied toward the costs of the acquisition,
construction or repair of the Project.
Corporation agrees to cooperate with City if City should request that Corporation issue
its additional or completion bonds and apply the proceeds thereof to additions to or the
completion of the Project provided that City shall first agree to pay a sufficient additional
amount of Rental Payments to provide for the timely payment of such additional or completion
bonds and related costs and expenses.
Section 14. Termination of Leasehold. Upon City's having paid all of the Rental
Payments and moneys due Corporation hereunder and the termination of this Agreement,
Corporation's leasehold interest in the Project pursuant to the Lease shall terminate, and City
shall have title to the Project free and clear of such leasehold interest.
Corporation further covenants and agrees that, after termination of this Agreement,
Corporation will donate to City any Bond proceeds or other moneys provided to Corporation by
City in respect of the Project and remaining with Corporation after paying all of its debts and
obligations in respect of the Project.
Section 15. Default. In the event City defaults in the performance of any of its
obligations under this Agreement and such default continues for a period of 30 days after written
notice thereof has been given by Corporation to City and Trustee, Corporation may declare this
Agreement terminated, and City shall thereupon surrender possession of the Project to
Corporation or to the Trustee pursuant to Section 9.03 of the Indenture; provided, however, no
such termination or surrender shall operate to relieve City of its obligation to Corporation to pay
the Rental Payments due hereunder pursuant to Section 2 hereof, including, but not limited to,
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the Basic Rent on the dates and in the amounts shown in Exhibit A. Such remedy shall not be
an exclusive remedy.
Section 16. Donations to City. City may receive and accept donations from any person,
firm, corporation or governmental body to assist in the acquisition, construction, improving,
furnishing and equipping of the Project. Any such donations so received by City (where the use
is not otherwise specified by the donor) shall be held in trust and used only to satisfy City's
obligations under this Agreement and to pay costs of acquiring the Project.
Section 17. Financing. City consents to and approves of the issuance by Corporation
of the Bonds in the aggregate principal amount of $8,000,000 dated August 1, 1997, on the
terms and conditions specified in the Indenture. City has undertaken to provide ongoing
disclosure for the benefit of Bondholders pursuant to Section (b)(5)(i)of Securities and Exchange
Commission Rule 15c2-12 under the Securities Exchange Act of 1934, as amended (17 C.F.R.,
§ 240.15c2-12), in that certain Letter Agreement dated the date of delivery of the Bonds between
the City and the Trustee.
Section 18. Amendment of This Agreement. City and Corporation agree that, this
Agreement being collateral for the Bonds, no amendment hereto shall be made without the
consent of Trustee.
Section 19. Refund of Sales Tax. Corporation acknowledges that any refund or rebate
of sales or use taxes which it may receive will be attributable to the sales and use tax exemption
of City, and, therefore, Corporation agrees to pay to City any refund or rebate of sales or use
taxes attributable to the acquisition of the Project. Corporation agrees to take such action, but
at City's expense, as City may request to obtain any such refund or rebate of sales or use taxes.
01/574934.2 1 1
City agrees that any refund or rebate of sales or use taxes which it receives, including amounts
remitted by Corporation pursuant to this Section 19, will be used to pay costs of acquiring the
Project. •
Section 20. Discrimination. Corporation shall not, in performance of this contract,
discriminate or permit discrimination in violation of federal or state or local ordinances because
of race, color, sex, age, political or religious opinions, affiliations or national origin.
Section 21. Authority of Parties. Each of the parties to this Agreement represents that
it has full power and authority to execute, perform and carry out the terms of this Agreement.
Execution of this Agreement has been authorized and directed by appropriate resolutions of the
Board of Directors of Corporation and an ordinance of the City Council of City.
Section 22. Compliance With Laws. Corporation shall comply with all applicable laws,
ordinances, rules and regulations in connection with the acquisition of the Project.
Section 23. Notices. Any notices required or permitted under this Agreement shall be
in writing and shall be sent by certified or registered mail, postage prepaid, return receipt
requested, addressed to Corporation at 215 South 15th Street, Omaha, Nebraska 68102 and to
City at Omaha-Douglas Civic Center, 1819 Farnam Street, Omaha, Nebraska 68183 or to such
other address as a party shall designate. Any notice shall be deemed to have been given at the
time it is duly depositedany in United States Post Office.
Section 24. Waiver. Any waiver at any time by a party to this Agreement of its rights
with respect to a default under this Agreement or with respect to any other matter arising out
of or in connection therewith shall not be deemed a waiver with respect to any subsequent
default or matter.
01/574934.2 12
Section 25. No Merger. Neither this Agreement, the Lease nor any provisions hereof
or thereof shall be construed to effect a merger of the title of City to the Project site and City's
leasehold interest herein.
Section 26. Benefit. This Agreement shall be binding upon and shall inure to the benefit
of the parties and their successors or assigns.
Section 27. Section Captions. The section captions contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or interpretation of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers as of the day and year first above written.
[SEAL] CITY OF OMAHA NORTHWEST LIBRARY
. FACILITIES CORPORATION
ATTEST:
By
President
Secretary
[SEAL] CITY OF OMAHA, NEBRASKA
ATTEST:
By
Mayor
City Clerk
APPROVED AS TO FORM:
ssista Cit tto 1 y
01/574934.2 13
. i
•
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me this day of August, 1997 by
EILEEN M. WIRTH President, and VERDA H. BIALAC, Secretary, of CITY OF OMAHA
NORTHWEST LIBRARY FACILITIES CORPORATION, on behalf of Corporation.
Notary Public
(SEAL)
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me this day of August, 1997 by
HAL DAUB, Mayor of the City of Omaha, Nebraska, and by MARY GALLIGAN CORNETT,
City Clerk, of the CITY OF OMAHA, NEBRASKA, on behalf of City.
Notary Public
(SEAL)
01/574934.2 14
EXHIBIT A
SCHEDULE OF BASIC RENT
PAYABLE BY THE CITY OF OMAHA, NEBRASKA
Date Principal Interest Total
2/15/98 $ $ $
8/15/98 •
2/15/99
8/15/99
2/15/00
8/15/00
2/15/01
8/15/01
2/15/02
8/15/02
2/15/03
8/15/03
2/15/04
8/15/04
2/15/05
8/15/05
2/15/06
8/15/06
2/15/07
8/15/07
2/15/08
8/15/08
2/15/09
8/15/09
2/15/10
01/574934.2
I. r A 1
a , • e
8/15/10
2/15/11
8/15/11
2/15/12
8/15/12
2/15/13
8/15/13
2/15/14
8/15/14
2/15/15
8/15/15
2/15/16
8/15/16
2/15/17
8/15/17
$ $ $
01/574934.2 A-2
A .
APPENDIX A
LEASEHOLD PROPERTY DESCRIPTION
MILLARD PROJECT
All of lot 258, Montclair West Replat, a subdivision as surveyed, platted and recorded in
Douglas County, Nebraska.
01/574934.2
APPENDIX B
LEASEHOLD PROPERTY DESCRIPTION
BENSON PROJECT
Lots one, two, three, four, five, and six, along with lot twenty four,
block 8, Benson Addition to the City of Omaha, Douglas County, Nebraska.
01/574934.2
APPENDIX C
LEASEHOLD PROPERTY DESCRIPTION
W. DALE CLARK PROJECT
Block 119, in the Original City of Omaha, as surveyed and
lithographed, Douglas County, Nebraska
•
Teoj auA
tatr. t
01/574934.2 B-2
4,0 k ,4'• ///0.
Exhibit B
CITY OF OMAHA, NEBRASKA,
as Lessor
to
CITY OF OMAHA NORTHWEST LIBRARY FACILITIES CORPORATION,
as Lessee
SITE LEASE AGREEMENT
Dated as of August 1, 1997
Return Copy to:
ATI Title Company
3154 South 19th Street
Omaha, Nebraska 68102 •
Attention:
01/574933.2 )N(7' L
•
SITE LEASE AGREEMENT
THIS SITE LEASE AGREEMENT is made and entered into as of the 1st day of August,
1997 by and between the CITY OF OMAHA, NEBRASKA, a municipal corporation ("City"),
as lessor, and CITY OF OMAHA NORTHWEST LIBRARY FACILITIES CORPORATION,
a Nebraska nonprofit corporation ("Corporation"), as lessee.
RECITALS:
City, in consideration of the covenants of Corporation hereinafter set forth, does by these
presents lease to Corporation three parcels of ground and all buildings and improvements
situated thereupon, located at (i) 13214 Westwood Lane in the City of Omaha, Nebraska, more
specifically described at Appendix A hereto, (ii) 2918 North 60th Street in the City of Omaha,
more specifically described at Appendix B hereto and (iii) 215 South 15th Street in the City of
Omaha, more specifically described at Appendix C hereto.
TO HAVE AND TO HOLD the same unto Corporation from, on and after the date
hereof to and including the earlier of (i) August 15, 2017 and (ii) the termination date of that
Lease-Purchase Agreement dated as of August 1, 1997 by and between Corporation, as lessor,
and City, as lessee, but in no event earlier than the first date on which the Bonds are no longer
Outstanding under the Indenture (as such terms are defined by such Lease-Purchase Agreement),
and City warrants to Corporation the peaceful and quiet enjoyment of the premises hereby leased
for and during the term hereof.
Corporation, in consideration of the leasing of the premises as above set forth, has agreed
with City to pay City as rent for the use of the same the sum of Ten Dollars ($10.00) per year,
which rent has been paid by Corporation for the entire term, the receipt and sufficiency of which
are hereby acknowledged by City.
Corporation further covenants with City that at the expiration of the term of this Lease
Agreement peaceable possession of said premises, together with any buildings or improvements
now or hereafter situated thereupon during the lease term, shall be given to City.
It is further covenanted and agreed between the parties hereto that the leased premises
shall be used only in connection with the provision of public library services for functions
incidental thereto or such other uses as may be approved by the City Council of City.
The covenants herein shall extend to and be binding upon the successors and assigns of
the parties to this Lease Agreement.
01/574933.2 0
IN WITNESS WHEREOF, the parties hereto have caused this Lease Agreement to be
executed by their duly authorized officers as of the day and year first written above.
[SEAL] CITY OF OMAHA, NEBRASKA
ATTEST:
By
Mayor
By
City Clerk
[SEAL] CITY OF OMAHA NORTHWEST LIBRARY
FACILITIES CORPORATION
ATTEST:
By
By President
Secretary
APPROVED AS TO FORM:
By
Assis nt Ci tt rn y
01/574933.2 2
STATE OF NEBRASKA )
SS.
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me this day of August, 1997 by
HAL DAUB, Mayor of the City of Omaha, Nebraska, and by MARY GALLIGAN CORNETT,
City Clerk, of the CITY OF OMAHA, NEBRASKA, on behalf of City.
[SEAL]
Notary Public
My commission expires:
STATE OF NEBRASKA )
SS.
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me this day of August, 1997, by
EILEEN M. WIRTH, President, and VERDA H. BIALAC, Secretary, of CITY OF OMAHA
NORTHWEST LIBRARY FACILITIES CORPORATION, on behalf of Corporation.
[SEAL]
Notary Public
My commission expires:
01/574933.2 3
f
APPENDIX A
LEASEHOLD PROPERTY DESCRIPTION
MILLARD PROJECT
All of lot 258, Montclair West Replat, A subdivision as surveyed, platted and recorded
in Douglas County, Nebraska.
O1/574933.2 * 0
•
APPENDIX B
LEASEHOLD PROPERTY DESCRIPTION
BENSON PROJECT
Lots one, two, three, four, five, and six, along with lot twenty four, block 8, Benson
Addition to the City of Omaha, Douglas County, Nebraska.
01/574933.2
{ J 1
APPENDIX C
LEASEHOLD PROPERTY DESCRIPTION
W. DALE CLARK PROJECT
Block 119, in the Original City of Omaha, as surveyed and lithographed, Douglas
County, Nebraska.
01/574933.2
•
1 A 4 zee. %,
airs'' ffr/97
Exhibit C
CITY OF OMAHA NORTHWEST LIBRARY FACILITIES CORPORATION
to
FIRST NATIONAL BANK OF OMAHA,
as Trustee
INDENTURE OF TRUST
Dated as of August 1, 1997
01/574936.2
l � '
•
TABLE OF CONTENTS
(This Table of Contents is not part of the Indenture of Trust and is only for convenience
of reference.)
Page
PARTIES 1
RECITALS 1
ARTICLE I
DEFINITIONS 3
ARTICLE II
ISSUANCE AND EXECUTION OF BONDS
Section 2.01. Issuance of Bonds 5
Section 2.02. Terms, Medium and Place of Payment 5
Section 2.03. Execution 6
Section 2.04. Form of Bonds 6
Section 2.05. Certificate of Authentication 6
Section 2.06. Authorization and Delivery 6
Section 2.07. Mutilated, Lost, Stolen or Destroyed Bonds 7
Section 2.08. Registration and Transfer of Bonds 7
Section 2.09. Additional Bonds 8
Section 2.10. Refunding Bonds 8
Section 2.11. Temporary Bonds 9
Section 2.12. Book-Entry-Only Bonds 9
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
Section 3.01. Bonds Redeemable 11
Section 3.02. Optional Redemption 11
Section 3.03. Mandatory Sinking Fund Redemption 11
Section 3.04. Extraordinary Optional Redemption 13
Section 3.05. Selection of Bonds To Be Redeemed 13
Section 3.06. Notice of Redemption 14
Section 3.07. Cancellation of Bonds 14
01/574936.2
Y y
7
}
ARTICLE IV
GENERAL COVENANTS
Section 4.01. Payment of Bonds 14
Section 4.02. Books and Records; Annual Accounting 14
Section 4.03. Trustee Enforcement of Agreement 15
Section 4.04. Parity Bonds 15
Section 4.05. Corporate Existence 15
Section 4.06. Arbitrage and Tax Covenants 15
ARTICLE V
BOND FUND
Section 5.01. Bonds Secured by Basic Rent Payments 16
Section 5.02. Creation of Bond Fund 16
Section 5.03. Deposits to Bond Fund 16
Section 5.04. Use of Moneys in Bond Fund 16
Section 5.05. Custody of Bond Fund; Withdrawals 16
Section 5.06. Unclaimed Moneys 17
Section 5.07. Additional Rent 17
ARTICLE VI
ACQUISITION FUND
Section 6.01. Creation of Acquisition Fund 17
Section 6.02. Use of Moneys in Acquisition Fund 17
Section 6.03. Requisitions 17
ARTICLE VII
INVESTMENTS • 18
ARTICLE VIII
DISCHARGE OF LIEN AND DEFEASANCE 18
01/574936.2 ii /
•
•
ARTICLE IX
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND BONDHOLDERS
Section 9.01. Events of Default 20
Section 9.02. Acceleration 21
Section 9.03. Other Remedies 21
Section 9.04. Limitation on Bondholders' Right To Institute Proceedings 21
Section 9.05. Possession of Bonds Not Required for Enforcement 21
Section 9.06. Waiver 22
Section 9.07. Application of Moneys 22
Section 9.08. Restoration to Former Position 23
Section 9.09. Bondholders' Right To Direct Proceedings 23
ARTICLE X
THE TRUSTEE
Section 10.01. Acceptance of Trusts 24
Section 10.02. Limitations on Liability 24
Section 10.03. Dealings in Bonds 24
Section 10.04. Compensation 24
ARTICLE XI
AMENDMENT OF INDENTURE
Section 11.01. Supplemental Indentures Not Requiring Consent of Bondholders 25
Section 11.02. Supplemental Indentures Requiring Consent of Bondholders 25
Section 11.03. Consent of Trustee Required 26
ARTICLE XII
• AMENDMENT OF LEASE-PURCHASE AGREEMENT
Section 12.01. Amendment of Agreement Not Requiring Consent of Bondholders 26
Section 12.02. Amendment of Agreement Requiring Consent of Bondholders 26
Section 12.03. Consent of Trustee Required 26
01/574936.2 111 \N('
•
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Execution of Instruments; Proof of Ownership 27
Section 13.02. Counterparts 27
Section 13.03. No Personal Liability of Corporation Officials; Limited
Liability of Corporation to Bondholders 27
Section 13.04. Severability 29
EXHIBIT A—Form of Bond
EXHIBIT B—Form of Requisition
EXHIBIT C—Form of Blanket Issuer Letter of Representations
•
•
01/574936.2 1V �.-7
INDENTURE OF TRUST
THIS INDENTURE OF TRUST is made and entered into as of the 1st day of August,
1997 by and between CITY OF OMAHA NORTHWEST LIBRARY FACILITIES
CORPORATION, a Nebraska nonprofit corporation ("Corporation"),.and FIRST NATIONAL
BANK OF OMAHA, a national banking association organized under the laws of the
United States of America, with a corporate trust office in the City of Omaha, Nebraska, as
trustee ("Trustee").
RECITALS
WHEREAS, Corporation, as lessor, has entered into a Lease-Purchase Agreement dated
as of August 1, 1997 (the "Agreement") with the City of Omaha, Nebraska ("City"), as lessee,
under which Corporation has leased to City certain real and personal property situated in
Omaha, Nebraska, commonly known as the Millard Branch Library, the realty being described
at Appendix A to the Agreement, which realty, together with the improvements, fixtures,
equipment and such personal property as may be situated thereon, is herein referred to as the
"Millard Project," certain real and personal property situated in Omaha, Nebraska, commonly
known as the Benson Branch Library, the realty being described at Appendix B to the
Agreement(which realty, together with the improvements, fixtures, equipment and such personal
property as may be situated thereon, is herein referred to as the "Benson. Project"), and certain
real and personal property situated in Omaha, Nebraska, commonly known as the W. Dale Clark
Library, the realty being described at Appendix C to the Agreement (which realty, together with
the improvements, fixtures, equipment and such personal property as may be situated thereon,
is herein referred to as the "W. Dale Clark Project", and together with the Millard Project and
the Benson Project, is herein referred to as the "Project"); and
WHEREAS, in order to obtain a portion of the funds for the acquisition, construction,
furnishing and equipping of the Project, it is necessary for Corporation to issue its Bonds in the
aggregate principal amount of Eight Million Dollars ($8,000,000) (the "Bonds"); the Bonds are
secured by a pledge of the Basic Rent (as hereinafter defined) to become due under the
Agreement, and Trustee has agreed to act as Trustee under this Indenture of Trust (this
"Indenture") for the benefit of the owners of the Bonds issued as hereinafter provided;`
NOW, THEREFORE,KNOW ALL MEN BY THESE PRESENTS:
WITNESSETH:
Corporation, in consideration of the premises, the acceptance by Trustee of the trusts
hereby created, the purchase and acceptance of the Bonds by the original purchasers thereof,
receipt of the sum of One Dollar ($1.00) lawful money of the United States of America to it
duly paid by Trustee at or before the execution and delivery of these presents, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
01/574936.2
,
in order to secure the payment of the principal of and interest on the Bonds issued as herein
provided according to their tenor and effect, and the performance and observance by Corporation
of all the covenants expressed or implied herein and in the Bonds, does hereby grant, bargain,
sell, convey and pledge unto Trustee, and its successors in trust, and to them and their assigns
forever, for the securing of the performance of the obligations of Corporation hereinafter set
forth, the following:
1. All revenues and income derived by Corporation from the Project,
including, without limitation, all Rental Payments received by Corporation from City
under the Agreement, such payments to be made by City directly to Trustee and
deposited by Trustee in an account of Corporation designated "Bond Fund."
2. Any and all other property of every name and nature from time to time
hereafter by delivery or by writing of any kind conveyed, mortgaged, pledged, assigned
or transferred, as and for additional security hereunder by Corporation or by anyone in
its behalf (or with its written consent) to Trustee, which is hereby authorized to receive
any and all such property at any time and to hold and apply the same, subject to the
terms hereof.
TO HAVE AND TO HOLD all the same with all privileges and appurtenances hereby
conveyed and assigned, or agreed or intended so to be, to Trustee and its respective successors
in trust and to them and their assigns forever:
IN TRUST, NEVERTHELESS, upon the terms and trusts herein set forth for the equal
and proportionate benefit, security and protection of all owners of Bonds issued under and
secured by this Indenture, without privilege, priority or distinction as to the lien or otherwise
of any of the Bonds or interest thereon over any of the other said Bonds or interest thereon.
PROVIDED, HOWEVER, that if Corporation, its successors or assigns shall well and
truly pay, or cause to be paid, the principal of and interest on the Bonds due or to become due
thereon, at the times and in the manner mentioned in the Bonds, according to the true intent and
meaning thereof, and shall make the payments to the Bond Fund as required under Article V
hereof, or shall provide as permitted hereby, for the payment thereof by depositing with Trustee
the entire amount due or to become due thereon, and shall well and truly keep, perform and
observe all the covenants and conditions pursuant to the terms of this Indenture to be kept,
performed and observed by it, and shall pay or cause to be paid to Trustee all sums of money
due or to become due to it in accordance with the terms and provisions hereof, then upon such
final payments this Indenture and the rights hereby granted shall cease, determine and be void,
otherwise this Indenture to be and remain in full force and effect.
THIS TRUST INDENTURE FURTHER WITNESSETH: that all Bonds issued and
secured hereunder or to be issued, authenticated and delivered, and all the revenues, income and
other property hereby pledged, including the Rental Payments due under the Agreement, are to
be dealt with and disposed of under, upon and subject to the terms, conditions, trusts, uses and
01/574936.2 2
•
purposes hereinafter expressed, and Corporation has agreed and covenanted and does hereby
agree and covenant with Trustee and with the respective owners, from time to time, of the
Bonds, as follows.
ARTICLE I
DEFINITIONS
In addition to the words and terms elsewhere defined in this Indenture, the following
words and terms as used in this Indenture shall have the following meanings, unless the context
or use indicates another or different meaning or intent.
"Acquisition Fund" means the Fund created by Article VI of this Indenture, into which
the net proceeds of the sale of the Bonds shall be deposited and out of which disbursements are
to be made in the manner and for the purpose specified in Article VI of this Indenture.
"Additional Rent" means the amounts City is required by the Agreement to pay with
respect to the Projects, in addition to the Basic Rent.
"Agreement" means the Lease-Purchase Agreement dated as of August 1, 1997 by and
between Corporation and City, together with any amendments thereto.
"Basic Rent" means the amounts City is required by the Agreement to pay to Corporation
as rent for the Project.
"Benson Project" means the real and personal property described on the first page hereof
and Exhibit B to the Agreement and the Lease and all property now or hereafter constructed or
placed thereon.
"Bond" or "Bonds" means any bond or bonds issued pursuant to, in accordance with, and
secured by this Indenture.
"Bond Fund" means the Fund created by Article V of this Indenture into which the funds
specified in Article V are to be deposited.
"Bondholder(s)" means the owner of any Bond.
"Bonds of Other Series" means bonds issued hereunder other than the Bonds.
"Bond Year" means the period of time beginning on August 15 of a given year and
ending on August 14 of the immediately subsequent year (or the maturity date of the Bonds,
whichever is earlier), except that the initial Bond Year shall commence on the date of original
issuance of the Bonds and end on August 14, 1998.
01/574936.2 3 •
•
"City" means the City of Omaha, Nebraska.
"Code" means the Internal Revenue Code of 1986, as amended, including the
United States Treasury Regulations proposed or in effect with respect thereto and applicable to
the Bonds or the use of the proceeds thereof.
"Corporation" means City of Omaha Northwest Library Facilities Corporation, a
Nebraska nonprofit corporation.
"Indenture" means this Indenture of Trust, together with any supplements hereto.
"Letter of Instructions" means the letter of nationally recognized bond counsel describing
the application of the rebate provisions of the Code.
"Millard Project" means the real and personal property described on the first page hereof
and Exhibit A to the Agreement and the Lease and all property now or hereafter constructed or
placed thereon.
"Outstanding" or "Bonds outstanding hereunder" means all Bonds which have been
authenticated, issued and delivered under this Indenture except:
(a) bonds cancelled because of payment;
(b) bonds for the payment or redemption of which cash funds or United States
Government Obligations as provided in Article VIII shall have been theretofore deposited
with Trustee, whether upon or prior to the maturity or redemption date of any of said
Bonds; and
(c) bonds in lieu of which others have been authenticated as provided under
Article II hereof.
"Person" includes natural persons, firms, associations, corporations and public bodies.
"Project" means, collectively, the Millard Project, the. Benson Project and the
W. Dale Clark Project.
"Record Date" means the first day of each month that includes an interest payment date,
namely February 1 and August 1.
"Rental Payments" means, collectively, the Basic Rent and the Additional Rent.
"Series 1997 Bonds" means the $[PRINCIPAL AMOUNT] of Corporation's Lease
Revenue Bonds (Omaha Public Library Projects), Series 1997.
01/574936.2 4
"Trustee" or "Paying Agent" means First National Bank of Omaha, and its corporate
successor or successors in trust under this Indenture.
"United States Government Obligations" means direct general obligations of, or
obligations the payment of the principal and interest of which are unconditionally guaranteed by,
the United States of America, which are not subject to prior redemption except at prices which
will produce the amount of cash required for the purpose for which the obligations are held.
"W. Dale Clark Project" means the real and personal property described on the first page
hereof and Exhibit C to the Agreement and the Lease and all property now or hereafter
constructed or placed thereon.
ARTICLE II
ISSUANCE AND EXECUTION OF BONDS
Section 2.01. Issuance of Bonds. The Series 1997 Bonds in the aggregate principal.
amount of Eight Million Dollars ($8,000,000) shall be issued by Corporation as soon as
practicable on or following the date of execution of this Indenture, and the proceeds thereof, net
of accrued interest, if any, shall be delivered to Trustee to be deposited by Trustee in the
Acquisition Fund.
The Bonds shall not be a debt of City or a pledge of its faith and credit but, together with
interest thereon, shall be payable solely out of the Rental Payments paid by City to Corporation
under the Agreement.
Section 2.02. Terms, Medium and Place of Payment. The Series 1997 Bonds shall be
issued as fully registered bonds, without coupons, in the denomination of$5,000 or any integral
multiple thereof. The Series 1997 Bonds shall be numbered in consecutive numerical order from
one upwards in chronological order, as issued, or shall be numbered in any other manner as the
Finance Director of City shall determine. The Series 1997 Bonds shall be dated August 15,
1997 and shall become due and payable on August 15 of the years and shall bear interest at the
rates per annum as shown below:
Maturity Date
(August 15) Amount Interest Rate
1998 $ %
1999
2000
2001
2002
2003
2004
2005
01/574936.2 5
5
2006
2007
2012
2017 $
The Series 1997 Bonds shall bear interest from August 15, 1997 and shall be payable
semiannually on February 15 and August 15 of each year, starting February 15, 1998.
The principal of the Bonds shall be payable in lawful money of the United States of
America at the principal corporate trust office of Trustee in Omaha, Nebraska, or its successor.
Payment of interest on the Bonds shall be made to the registered owner thereof and shall be paid
(i) by check or draft mailed to the registered owner at his address as it appears on the
registration books of Corporation on the Record Date or at such other address as is furnished
to Trustee in writing by such registered owner or (ii) by wire transfer to the registered owner
of$1,000,000 in aggregate principal amount of the Bonds upon written notice by the registered
owner given to Trustee not later than the close of business on the Record Date.
Section 2.03. Execution. The Bonds shall be executed on behalf of Corporation by the
President and Secretary of Corporation, each of whose signatures may be a facsimile of the
signature, and the seal, or a facsimile thereof, of Corporation shall be placed on each Bond.
In case any officer whose signature shall appear on the Bonds shall cease to be such officer
before the delivery of such Bonds, such signature shall, nevertheless, be valid and sufficient for
all purposes, the same as if such officer had-remained in office until delivery.
Section 2.04. Form of Bonds. The Bonds shall be in substantially the form set forth
in Exhibit A hereto with such variations, omissions and insertions as are permitted or required
by this Indenture and are deemed advisable by nationally recognized bond counsel to effectuate
the purposes of this Indenture.
Section 2.05. Certificate of Authentication. Only such Bonds as shall have endorsed
thereon a Certificate of Authentication substantially in the form set forth in Exhibit A hereto,
duly manually executed by Trustee, shall be entitled to any right or benefit under this Indenture.
No Bond shall be valid or obligatory for any purpose unless and until such Certificate of
Authentication shall have been duly executed by Trustee, and such executed Certificate shall be
conclusive evidence that such Bond has been authenticated under this Indenture.
Section 2.06. Authorization and Delivery. Upon the execution and delivery of this
Indenture, Corporation shall execute the Bonds and deliver same to Trustee, who shall
authenticate the Bonds. The Bonds shall then be delivered to the original purchasers of the
Bonds upon the payment of the purchase price not less than 98% of the principal amount
thereof, together with interest to the date of payment and delivery of the Bonds.
01/574936.2 6 (/�/
•
•
Section 2.07. Mutilated, Lost, Stolen or Destroyed Bonds. In case any Bond issued
hereunder shall become mutilated, destroyed, stolen or lost, Corporation shall, if not then
prohibited by law, cause to be executed, and Trustee may authenticate and deliver, a new Bond
of like date, number, maturity and tenor in exchange and substitution therefor, and upon
cancellation of such mutilated Bond, or in lieu of and in substitution for such lost Bond, upon
the owner paying the reasonable expenses and charges of Corporation and Trustee in connection.
therewith, and, in case of a Bond destroyed or lost, the owner filing with Trustee evidence
satisfactory to it that such Bond was destroyed or lost, and furnishing Corporation and Trustee
with indemnity satisfactory to them.
Section 2.08. Registration and Transfer of Bonds. Corporation shall cause books for
the registration and for the transfer of the Bonds as provided in this Indenture to be kept by
Trustee. At reasonable times and under reasonable regulations established by the Corporation,
such list may be inspected and copied by the owners (or a designated representative thereof) of
25% or more in aggregate principal amount of Bonds then Outstanding.
Upon surrender for transfer of any Bond at the principal office of Trustee, Trustee shall
deliver in the name of the transferee or transferees a new fully authenticated and registered Bond
of$5,000 principal amount (or integral multiple thereof) of the same maturity for the aggregate
principal amount which the Bondholder is entitled to receive.
All Bonds presented for transfer, redemption or payment shall be accompanied by a
written instrument or instruments of transfer or authorization for exchange, in form and with
guaranty of signature as set forth in the form of Exhibit A hereto or as may be satisfactory to
Corporation and Trustee, duly executed by the Bondholder or by his duly authorized attorney.
Trustee also may require payment from the Bondholder of a sum sufficient to cover any
tax, or other governmental fee or charge that may be imposed in relation thereto. Such taxes,
fees and charges shall be paid before any such new Bond shall be delivered.
Corporation and Trustee, on behalf of Corporation, shall not be required (a) to issue or
register the transfer of any Bond during a period beginning on the Record Date and ending at
the close of business on the business day next preceding any principal payment date or (b) to
transfer any Bond selected, called or being called for redemption in whole or in part.
Bonds delivered upon any transfer as provided herein, or as provided in Section 2.07
hereof, shall evidence the same debt as the Bond surrendered, shall be secured by this Indenture
and shall be entitled to all of the security and benefits hereof to the same extent as the Bond
surrendered.
Corporation and Trustee shall treat the Bondholder, as shown on the registration books
kept by Trustee, as the person exclusively entitled to payment of principal, premium, if any, and
interest and the exercise of all other rights and powers of the Bondholder, except that all interest
payments will be made to the Bondholder as of the Record Date.
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01/574936.2 7
Section 2.09. Additional Bonds. Additional series of bonds having status and rank equal
to the Bonds may be issued from time to time under the terms of this Indenture, providing for
such interest rates and other characteristics as shall be fixed and determined by Corporation and
as set forth in a supplemental indenture, and provided there must be compliance with each of
the following:
(1) Corporation is not in default under this Indenture;
(2) City is not in default under the Agreement;
(3) Corporation and City shall, prior to the issuance of such Bonds of Other
Series, have entered into an amendment to the Agreement to increase the Basic Rent
payable by City to provide sufficient additional funds at the times and in the amounts
necessary to pay the principal of and interest on both the outstanding Bonds and the
• proposed Bonds of Other Series, including any principal due on the Bonds of Other
Series due by mandatory redemption provisions and to provide that City will pay as
Additional Rental the fees and expenses of Trustee with respect to the Bonds of Other
Series;
(4) each issue of Bonds of Other Series shall be designated by some name to
indicate that such Bonds are of a different series than the Bonds; and
(5) the issuance of such Bonds of Other Series shall have been approved by
City.
Section 2.10. Refunding Bonds. Bonds to refund all or any of the Bonds outstanding
hereunder may be issued at any time provided there is compliance with each of the following:
(1) Corporation is not in default under this Indenture, or the default will be
cured immediately after issuance of the refunding bonds;
(2) City is not in default under the Agreement;
(3) Basic Rent payable by City under the Agreement shall be sufficient to pay,
when due, the principal of and interest on all Bonds to be outstanding, including the
refunding bonds;
(4) the issuance of the refunding bonds shall in no manner adversely affect the
exclusion from gross income of the interest on the Bonds for federal income tax
purposes;
(5) the proceeds of the refunding bonds shall be applied in such manner that
the Bonds being refunded are no longer outstanding hereunder after issuance of the
refunding bonds; and
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01/574936.2 8
(6) the issuance of such refunding bonds shall have been approved by City.
Any such refunding bonds shall bear interest and be on such other terms and conditions as shall
be determined by Corporation. Refunding bonds issued in compliance with the foregoing
provisions shall have rank and status equal to the Bonds.
Section 2.11. Temporary Bonds. Until Bonds in definitive form are ready for delivery,
Corporation may execute, and upon the request of Corporation, Trustee shall authenticate and
deliver to the purchasers thereof, subject to the provisions, limitations and conditions set forth
above, one or more Bonds in temporary form, whether printed, type-written, lithographed or
otherwise produced, substantially in the form of the definitive Bonds, with appropriate
omissions, variations and insertions, and in authorized denominations. Until exchanged for
Bonds in definitive form, such Bonds in temporary form shall be entitled to the lien and benefit
of this Indenture. Upon the presentation and surrender of any Bond or Bonds in temporary
form, Corporation shall, without unreasonable delay, prepare, execute and deliver to Trustee,
and Trustee shall authenticate and deliver to the owner or owners thereof, in exchange therefor,
a Bond or Bonds in definitive form. Such exchange shall be made by Trustee without making
any charge therefor to the owners of such Bonds in temporary form.
Section 2.12. Book-Entry-Only Bonds. (a) The Series 1997 Bonds shall initially be
issued in book-entry form. The Depository Trust Company,, New York, New York (the
"Depository") is hereby appointed the Depository for the Bonds. The Blanket Issuer
Representations Letter, attached hereto as Exhibit C and incorporated herein by this reference,
dated as of the date of delivery of the Bonds and signed by Corporation and the Depository, is
hereby approved, and the execution by the President of Corporation is hereby authorized. The
ownership of one fully registered Bond for each maturity as set forth in Section 2.02 hereof,
each in the aggregate principal amount of such maturity, shall be registered in the name of
Cede & Co., as nominee for the Depository. Payment of semiannual interest on any Bond
registered as of each Record Date in the name of Cede & Co. shall be made in same-day funds
or its equivalent, by wire transfer to the account of Cede & Co. on the interest payment dates
and the respective maturity dates for the Bonds, at the address indicated on the Record Date for
Cede & Co. in the registration books of Corporation kept by Trustee.
(b) Trustee and Corporation may treat the Depository (or its :7ominee) as the sole and
exclusive owner of the Bonds registered in its name for the purposes of payment of the principal
of and interest on the Bonds, giving any notice permitted or required to be given to Bondholders
under this Indenture, registering the transfer of Bonds, obtaining any consent or other action to
be taken by Bondholders and for all other purposes whatsoever, and neither Trustee nor
Corporation shall be affected by any notice to the contrary.
(c) Corporation and Trustee shall have no responsibility or obligation to any securities
broker-dealer, bank, trust company, clearing corporation or other organization for which the
Depository holds Bonds as securities depository (each, a "Participant") or to any Participant and
01T574936.2 9 *
•
the person for whom it acquires an interest in the Bonds as nominee (each, a "Beneficial.
Owner") with respect to the following:
(i) the accuracy of the records of the Depository, any nominees of the
Depository or any Participant with respect to any ownership interest in the Bonds;
(ii) the delivery to any Participant, any Beneficial Owner or any other person,
other than the Depository, of any notice with respect to the Bonds, including any notice
of redemption; or
(iii) the payment to any Participant, any Beneficial Owner or any other person,
other than the Depository, of any amount with respect to the Bonds. Trustee shall make
payments with respect to the Bonds only to or upon the order of the Depository or its
nominee, and all such payments shall be valid and effective fully to satisfy and discharge
the obligations with respect to such Bonds to the extent of the sum or sums so paid. No
person other than the Depository shall receive an authenticated Bond.
(d) Notwithstanding any other provision of this Indenture to the contrary, so long as
any Bond is registered in the name of the Depository or any nominee thereof, all payments with.
respect to such Bond and all notices with respect to such Bond shall be made and given,
respectively, to the Depository as provided in the Blanket Issuer Representations Letter.
(e) Upon receipt by Trustee of written notice from the Depository to the effect that
the Depository is unable or unwilling to discharge its responsibilities or upon receipt by Trustee
of written notice from Corporation to the effect that Corporation has determined that the
Depository is incapable of discharging its responsibilities, Trustee shall issue, transfer and
exchange Bonds requested by the Depository in appropriate amounts. Whenever the Depository
requests Trustee to do so, Trustee will cooperate with the Depository in taking appropriate action
after reasonable notice (i) to arrange, with the prior written consent of Corporation, for a
substitute depository willing and able upon reasonable and customary terms to maintain custody
of the Bonds or (ii) to make available Bonds registered in whatever name or names the
Beneficial Owners transferring or exchanging such Bonds shall designate.
(f) If Corporation determines that it is desirable that certificates representing the
Bonds be delivered to the Participants and/or Beneficial Owners of the Bonds and so notifies
Trustee in writing, Trustee shall so notify the Depository, whereupon the Depository will notify
the Participants of the availability through the Depository of bond certificates representing the
Bonds. In such event, Trustee shall issue, transfer and exchange bond certificates representing
the Bonds as requested by the Depository in appropriate amounts and in authorized
denominations.
•
(g) Registered ownership of the Bonds may be transferred on the books of registration
maintained by Trustee, and the Bonds may be delivered in physical form to the following:
01/574936.2 1.
1
(1) any successor securities depository or its nominee;
(2) any person, upon (A) the resignation of the Depository from its functions
as depository or (B) termination of the use of the Depository pursuant to this Section.
(h) In the event of any partial redemption of a Bond unless and until such partially
redeemed Bond has been replaced in accordance with the provisions of Section 2.08 of this
Indenture, the books and records of Trustee shall govern and establish the principal amount of
such Bond as is then outstanding, and all of the Bonds issued to the Depository or its nominee
shall contain a legend to such effect.
(i) If for any reason the Depository resigns and is not replaced, Corporation shall
immediately provide a supply of printed bond certificates for issuance upon the transfers from
the Depository and subsequent transfers or in the event of a partial redemption pursuant to
Section 2.08 of this Indenture.
(j) In the event that the Bonds are no longer held in book-entry form, payment of
interest on the Bonds shall be made to the registered owners thereof as provided by Section 2.02
hereof.
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
Section 3.01. Bonds Redeemable. The Series 1997 Bonds are noncallable for
redemption except pursuant to Sections 3.02, 3.03, 3.04, 3.05 and 3.06 hereof.
Section 3.02. Optional Redemption. The Series 1997 Bonds maturing on August 15,
2012 and 2017 are subject to redemption by Corporation from any source, in whole at any time,
or in part on any interest payment date, in such order of maturities as determined by Corporation
(and by lot or other random selection method within a maturity) on or after August 15, 2007,
at the following redemption prices expressed as a percentage of the principal amount of the
Series 1997 Bonds to be redeemed, plus interest accrued thereon to the date of redemption:
Redemption Period
(dates inclusive) Redemption Price
August 15, 2007 to August 14, 2008 102%
August 15, 2008 to August 14, 2009 101
August 15, 2009 and thereafter 100
Section 3.03. Mandatory Sinking Fund Redemption. The Series 1997 Bonds maturing
on August 15, 2012 shall be subject to mandatory redemption at a redemption price equal to the
01/574936.2 11
2
principal amount thereof, without premium, in the following principal arnounts on the following
mandatory redemption dates:
August 15 Principal Amount
2008
2009
2010
2011 •
The remaining $ principal amount of Series 1997 Bonds maturing on August 15, 2012
shall be paid at maturity on August 15, 2012.
The Series 1997 Bonds maturing on August 15, 2017 shall be subject to mandatory
redemption at a redemption price equal to the principal amount thereof, Without premium, in the
following principal amounts on the following mandatory redemption dates:
August 15 Principal Amount
2013
2014
2015
2016
The remaining$ principal amount of Series 1997 Bonds maturing on August 15, 2017
shall be paid at maturity on August 15, 2017.
To the extent that such Series 1997 Bonds have been previously called for redemption
in part and otherwise than as provided in this Section 3.03, each related aforesaid annual.
redemption amount for the Series 1997 Bonds of such maturity shall be reduced by the amount
obtained by multiplying the principal amount of such Series 1997 Bonds of such maturity so
called for redemption by the ratio which each annual redemption amount for the Series 1997
Bonds of such maturity bears to the total sinking fund payments of such Series 1997 Bonds
subject to redemption as provided in this Section 3.03 and by rounding each such redemption
amount to the nearest $5,000 multiple.
On or before the thirtieth day prior to August 15 of each year listed in this Section 3.03
as a mandatory redemption date, Trustee shall proceed to select for redemption (by lot or other
random selection method in such manner as Trustee may determine), from all outstanding
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01/574936.2 12
•
Series 1997 Bonds subject to such mandatory redemption, a principal amount of such
Series 1997 Bonds, equal to the aggregate principal amount of such Series 1997 Bonds
redeemable, and shall call such Series 1997 Bonds or portions thereof ($5,000 or any integral
multiple thereof) for redemption on each such August 15 and give notice of such call as provided
in Section 3.06.
Section 3.04. Extraordinary Optional Redemption. The Series 1997 Bonds are subject
to redemption at any time in whole, or in part, in the event of damage to or destruction of all
or a portion of the Millard Project, the Benson Project or the W. Dale Clark Project or
condemnation thereof and election by City that the proceeds of such damage, destruction or
condemnation award shall not be used to rebuild or restore the Millard Project, the Benson
Project or the W. Dale Clark Project, as applicable. Any such redemption shall be at a
redemption price equal to the principal amount of the Series 1997 Bonds being redeemed,
without premium, plus accrued interest thereon to the date of redemption. The principal amount
of the Series 1997 Bonds redeemed as a result of the damage, destruction or condemnation of
the Millard Project, the Benson Project or the W. Dale Clark Project, respectively, pursuant to
this Section 3.04 shall not exceed the amount of the Series 1997 Bonds then Outstanding
multiplied by the ratio of disbursements from the Acquisition Fund for the Millard Project, the
Benson Project or the W. Dale Clark Project, respectively, to the amount of proceeds of the
Series 1997 Bonds deposited in the Acquisition Fund, with such amount to be redeemed rounded
up to the nearest $5,000. No Series 1997 Bonds shall be redeemed under this provision, nor
shall any notice of redemption be given by Trustee, until there has been furnished to Trustee
sufficient funds, United States Government Obligations or other provision satisfactory to Trustee
fully to retire all Bonds to be redeemed in accordance with this Section.
Section 3.05. Selection of Bonds To Be Redeemed. (a) The maturities of Bonds of a
series to be redeemed in part shall be selected by Corporation in the principal amount of$5,000
or any integral multiple thereof and the Bonds of a particular maturity to be redeemed shall be
selected by Trustee from the Outstanding Bonds of that maturity by lot (or such other random
selection method as Trustee shall deem equitable), which may provide for the selection for
redemption of portions of the principal of Outstanding Bonds of that maturity of a denomination
larger that $5,000. The portions of the principal of Outstanding Bonds so selected for partial
redemption shall be equal to $5,000 or integral multiples thereof. Any Bond which is to be
redeemed only in part shall be delivered to Trustee who shall authenticate and deliver to the
Bondholder, without service charge, a new Bond or Bonds, of any authorized denomination as
requested by such Bondholder in an aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Bonds so surrendered. If the Bondholder of any such
Bond of a denomination greater that $5,000 shall fail to present such Bond to Trustee for
payment and exchange as aforesaid, such Bond shall, nevertheless, become due and payable on
the redemption date to the extent of the principal amount of such Bond called for redemption
(and to that extent only).
(b) Trustee shall call Bonds for redemption as herein provided upon receipt by
Trustee at least 45 days prior to the redemption date of a written request of Corporation. Such
01/574936.2 13
request shall specify the principal amounts and maturities of Bonds so to be called for
redemption, the applicable redemption price or prices and the provision or provisions of this
Indenture pursuant to which such Bonds are to be called for redemption. Trustee may, in its
sole discretion, waive or reduce the time period of such written notice to Trustee. The
foregoing provisions of this subparagraph (b) shall not apply in the case of any mandatory
redemption of Bonds pursuant to Section 3.03, and Bonds shall be called by Trustee for
redemption pursuant to such mandatory redemption requirements without the necessity of any
action by Corporation and whether or not Trustee shall hold in the Bond Fund moneys available
for and sufficient to effect the required redemption.
Section 3.06. Notice of Redemption. In the event any of the Bonds are called for
redemption as aforesaid, notice thereof identifying such Bonds will be given for Bonds held in
book-entry-only form by mailing to the Depository not less than 30 days nor more than 60 days
prior to the redemption date and for Bonds held in certificated form by mailing by first-class
mail to the registered owner thereof not less than 30 days prior to the date fixed for redemption.
All Bonds so called for redemption will cease to bear interest after the specified redemption date,
provided funds for their redemption are on deposit at the place of payment at that time. Any
funds paid for redemption of Bonds shall be applied first against any interest due and owing on
the Bonds and then against the unpaid principal balance thereof.
Section 3.07. Cancellation of Bonds. All Bonds which have been redeemed shall be
cancelled by Trustee and destroyed by Trustee in accordance with its regular procedures.
ARTICLE IV
GENERAL COVENANTS
Section 4.01. Payment of Bonds. Corporation covenants that it will promptly pay the
principal of and interest on every Bond issued under this Indenture at the place, on the dates and
in the manner provided herein and in the Bonds according to the true intent and meaning hereof.
Such principal and interest are payable solely from revenues in the Bond Fund derived from the
Basic Rent payable under the Agreement or other funds deposited hereunder in the Bond Fund.
Corporation further covenants faithfully to perform at all times any and all covenants,
undertakings, stipulations and provisions contained in this Indenture, and Corporation will do,
execute, acknowledge and deliver, or cause to be done, executed, acknowledged and delivered,
such indentures supplemental hereto and such further acts, instruments and transfers as Trustee
may reasonably require for the better assuring, transferring, mortgaging, pledging, assigning and
confirming unto Trustee the property herein described and the revenues, income and all other
property pledged hereby to the payment of the principal of and interest on the Bonds.
Section 4.02. Books and Records; Annual Accounting. Trustee agrees that, so long
as any Bonds issued hereunder and secured by this Indenture shall be outstanding and unpaid,
it will keep proper books of record and account in which full, true and correct entries will be
made of all dealings or transactions of and in relation to the Project and the revenues, income
,
01/574936.2 14
and all other property derived therefrom. Trustee agrees to furnish to City and Corporation an
accounting annually, and at such other times as either may reasonably request, pertaining to the
dealings and transactions of Trustee in relation to the Project. All books and records of Trustee
relating to the Project and the revenues therefrom shall at all times be open to inspection by
representatives of City and Corporation and the owners of the Bonds.
Section 4.03. Trustee Enforcement of Agreement. The Agreement sets forth the
covenants and obligations of Corporation and City and reference is hereby made to the
Agreement for a detailed statement of the respective obligations. Corporation agrees that
Trustee, in its own name or in the name of Corporation, may enforce all rights and obligations
Corporation may have under and pursuant to the Agreement for and on behalf of the
Bondholders, whether or not Corporation is in default in its covenants to enforce such rights and
obligations.
Section 4.04. Parity Bonds. Corporation covenants that, so long as any of the Bonds
are outstanding, it will not issue other bonds payable from the Basic Rent due under the
Agreement except as permitted in Article II of this Indenture, and in any event not without the
specific consent to such issuance given by City.
Section 4.05. Corporate Existence. Corporation covenants to maintain its corporate
existence as a nonprofit corporation under the laws of the State of Nebraska.
Section 4.06. Arbitrage and Tax Covenants. Corporation aiid Trustee jointly and
severally covenant and certify to each other and for the benefit of the holders of the Bonds that
no use will be made of the proceeds from the issuance and sale of the Bonds nor will use be
made of moneys in the various funds and accounts established under this Indenture which would
cause the Bonds to be classified as arbitrage bonds within the meaning of Section 148 of the
Internal Revenue Code of 1986, as amended (the "Code"), and the Income Tax Regulations
promulgated thereunder (the "Regulations"). Pursuant to such covenant, Corporation and
Trustee obligate themselves to comply throughout the term of the Bonds with the requirements
of said Section 148 of the Code.
Corporation and Trustee acknowledge that, under Section 148 of the Code, investment
of the proceeds of the Bonds, including investment proceeds, is subject to and must comply with.
the provisions of Section 148 of the Code with respect to the acquisition of obligations the yield
on which will be materially higher than the yield on the Bonds during the term of the Bonds.
Corporation and Trustee further acknowledge that investments may be made in materially higher
yield obligations during a temporary period if certain requirements set forth in the regulations
applicable to Section 148 are met. Corporation and Trustee further acknowledge that, under
certain circumstances, earnings on certain funds may be subject to rebate to the United States
in accordance with Section 148 of the Code, and Corporation and Trustee hereby agree to
comply with Section 148 of the Code and all applicable regulations thereunder. Except as
permitted by the rules set forth in such regulations, as they may be revised from time to time,
with respect to investments made during a temporary period, the proceeds of the Bonds shall not
01/574936.2 15
be invested in materially higher yielding investments. All terms used in this Article IV which
are defined in Section 148 of the Code shall have the same meanings in this Article IV as in the
Code.
Trustee shall establish a trust fund (the "Rebate Fund") pursuant to this Indenture for the
purpose of accepting deposits of rebate amounts which may occur by operation of Section 148
of the Code. Corporation shall provide not later than 60 days after the fifth Bond Year and
every five years thereafter for payment to the United States of 90% of the amounts required to
be paid pursuant to Section 148(f) of the Code and the Regulations. Not later than 60 days after
the final retirement of the Bonds, Corporation shall pay 100% of the amount required to be paid
pursuant to Section 148(f) of the Code and the Regulations. Each payment shall be filed with
the Internal Revenue Service Center, Philadelphia, Pennsylvania 19255. Each payment shall be
accompanied by a copy of the Form 8038-T and a statement summarizing the determination of
the amounts paid and to be paid to the United States.
ARTICLE V
BOND FUND
Section 5.01. Bonds Secured by Basic Rent Payments. The Project has been leased to
City under the Agreement and the Basic Rent payments have been and are hereby assigned and
shall be remitted directly to Trustee for the account of Corporation and deposited in the Bond
Fund, and the entire amount of the Basic Rent payments is pledged to the payment of the
principal of and interest on the Bonds and other Bonds issued as permitted by Article II.
Section 5.02. Creation of Bond Fund. There is hereby created by Corporation and
ordered established with Trustee a trust fund to be designated "Bond Fund" which shall be used
to pay the interest on and principal of the Bonds.
Section 5.03. Deposits to Bond Fund. There shall be deposited in the Bond Fund all
accrued interest received, if any, at the time of the issuance, sale and delivery of the Bonds, all
Basic Rent payments, as and when received, made under the Agreement and all other moneys
received by Trustee under and pursuant to any of the provisions of the Agreement directing such
moneys to be paid into the Bond Fund.
Section 5.04. Use of Moneys in Bond Fund. Moneys in the Bond Fund shall be used
solely for the payment of the interest on the Bonds and for the retirement of the Bonds at or
prior to maturity.
Section 5.05. Custody of Bond Fund; Withdrawals. The Bond Fund shall be in the
custody of Trustee, and Corporation hereby authorizes and directs Trustee to withdraw funds
from the Bond Fund in amounts sufficient to meet installments of interest on or principal of the
Bonds when due.
01/574936.2 16
Section 5.06. Unclaimed Moneys. In the event any Bonds shall not be presented for
payment when the principal thereof becomes due, if funds sufficient to pay such Bonds shall
have been made available to Trustee for the benefit of the owners thereof, all liability of
Corporation to the Bondholders for the payment of such Bonds and the interest thereon shall
forthwith cease, determine and be completely discharged and thereupon it shall be the duty of
Trustee to hold such fund or funds, without liability for interest thereon, for a period of
six years after all Bonds shall have matured, for the benefit of the owners of such Bonds, who
shall thereafter be restricted exclusively to such funds for any claim of whatever nature on their
part under this Indenture or with respect to such Bonds. At the expiration of such period, any
unclaimed principal or interest shall be paid to City and thereafter all claimants shall be
restricted exclusively to making claim against City for such principal or interest. City shall have
no liability for interest on any such funds paid to it and shall not be required to hold such funds
in trust nor to, in any manner, segregate such funds on its books.
Section 5.07. Additional Rent. It is understood and agreed that, pursuant to the
provisions of the Agreement, City agrees to pay costs and expenses.as Additional Rent (as that
term is defined in the Agreement), including the fees and expenses of Trustee.
ARTICLE VI
ACQUISITION FUND
Section 6.01. Creation of Acquisition Fund. A special fund is hereby created with
Trustee to be designated "Acquisition Fund." Upon the issuance and sale of the Bonds, the
proceeds thereof, excluding accrued interest, if any, shall be deposited into the Acquisition
Fund.
Section 6.02. Use of Moneys in Acquisition Fund. Moneys in the Acquisition Fund
shall be disbursed for the following purposes:
(1) the payment of expenses of issuing and selling the Bonds, including
printing, legal and financial expenses; and
(2) the amount remaining after payment or provision for payment of the
expenses mentioned in (1) above shall be applied to the payment of the costs of the
Project, including the reimbursement of City for any such costs incurred after June 6,
1997.
Section 6.03. Requisitions. Trustee shall disburse funds in payment of expenses
permissible under Section 6.02(1) and Section 6.02(2)upon receipt of requisitions signed by the
President or Secretary of Corporation or such other person or persons, including officials or
employees of City, as designated in writing by the President and Secretary of the Corporation.
01/574936.2 17
Requisitions submitted to Trustee shall be in the form attached hereto as Exhibit B.
Trustee shall maintain complete and accurate records relating to each such disbursement for
Project's costs.
ARTICLE VII
INVESTMENTS
Moneys for the credit of any fund or account under this Indenture shall be invested and
reinvested by Trustee upon the written direction of Corporation, but only in investments
authorized by Reissue Revised Statutes of Nebraska, 1943, Section 14-563, viz. securities of the
United States, the State of Nebraska, the City, Douglas County, Nebraska, a school district of
the City, municipality owned and operated public utility property and parts of the City, and
certificates of deposit from and make time deposits in bank or capital stock financial institutions
selected as depositories of City funds; provided that moneys deposited from Basic Rent payments
to the credit of the Bond Fund shall only be invested or reinvested by Trustee in direct
obligations of, or obligations the principal of and interest on which are unconditionally
guaranteed by, the United States of America. Any such investment shall mature at such time
and in such amounts so that funds will be available when required. Obligations so purchased
as an investment of moneys shall be held by or under the control of Trustee and shall be deemed
at all times part of the fund or account from which invested, and the interest accruing thereon
and any profit realized from such investments shall be credited to such fund or account and any
loss resulting from such investments shall be charged to such fund or account.
ARTICLE VIII
DISCHARGE OF LIEN AND DEFEASANCE
If Corporation shall pay or cause to be paid to the owners of the Bonds the principal and
interest to become due thereon at the time and in the manner stipulated therein, and if
Corporation shall keep, perform and observe all and singular the covenants and promises in the
Bonds and in this Indenture expressed as to be kept, performed and observed by it or on its part,
then these presents and the estate and rights hereby granted shall cease, determine and be void,
and thereupon Trustee shall cancel and discharge the lien of this Indenture and execute and
deliver to Corporation such instruments in writing as shall be requisite to satisfy the lien hereof
and assign and deliver to Corporation any property at the time subject to the lien of this
Indenture which may then be in its possession, except cash held by Trustee for the payment of
interest on and retirement of the Bonds, or as otherwise provided for herein.
It is specifically understood and agreed that the release of the lien of this Indenture shall
not affect nor cancel the provisions of this Indenture relating to Bonds issued or the rights of
owners of the Bonds, Trustee or Corporation, which provisions shall continue in full force and
effect according to their terms.
01/574936.2 18
•
•
Corporation may at any time surrender to Trustee for cancellation by it any Bonds
previously authenticated and delivered hereunder which Corporation may have acquired in any
manner whatsoever, and such Bonds, upon surrender and cancellation, shall be deemed to be
paid and retired.
For the purposes of this Indenture, any Bond issued hereunder shall be deemed to be
fully discharged and satisfied and no longer outstanding when:
(1) a Bond is cancelled whether by reason of payment or redemption prior to
maturity;
(2) a Bond is surrendered to Trustee for cancellation;
(3) a Bond for which the payment of the principal of and all interest accrued
and to accrue through the due date of payment (regardless of whether such due date
arises by reason of maturity, upon redemption or by declaration as provided herein) has
been made; such payment will be deemed to have been made when there has been
deposited with Trustee sufficient moneys to make such payment or United States
Government Obligations maturing, as to principal and interest, in such amount and at
such times as will insure the availability of sufficient moneys to make any such payment
and all necessary and proper fees, compensation and expenses of Trustee pertaining to
such Bond with respect to which such deposit is made have either been paid or payment
provided for to the satisfaction of Trustee; provided, however, no deposit of cash or
United States Government Obligations shall constitute discharge and satisfaction as to any
Bond to be redeemed prior to their maturity unless:
(a) such Bond has been irrevocably called or designated for redemption
on the first date thereafter on which such Bond may be redeemed in accordance
with the provisions of Article III of this Indenture; and
(b) proper notice of the redemption of such Bond has been mailed as
required by Article III hereof, or irrevocable provision, satisfactory to Trustee,
shall have been made for the mailing of such notice.
(4) a Bond is mutilated, destroyed or lost and, subsequently, a new Bond is
issued as provided under Section 2.07 of this Indenture.
At such time as a Bond shall no longer be deemed to be outstanding hereunder, as
provided in this Section, such Bond shall no longer be secured by or entitled to the benefits of
this Indenture except for the purpose of payment from the cash or United States Government
Obligations deposited with and held by Trustee for such purpose.
Moneys deposited with Trustee under this Section and the proceeds of any United States
Government Obligations held under this Section may be invested and reinvested in United States
01/574936.2 19
Government Obligations which mature in the amounts and at the times required to comply with
the provisions of this Section. Any income from such investments in excess of the requirements
for principal of and interest on any Bond not being outstanding under the provisions of this
Section shall be paid into the Bond Fund to be disbursed or held as provided thereby. •
If cash or United States Government Obligations shall have been deposited with Trustee
in accordance with this Section, in trust for the purpose and sufficient and available to pay the
principal of any Bond, together with all interest due thereon to the due date thereof or to the date
fixed for the redemption thereof, all liability of Corporation for such payments shall terminate
and be discharged, whether or not such Bond shall be presented for payment on the due date,
whether at maturity or upon redemption or by declaration, and Trustee shall hold such moneys
or United States Government Obligations without liability to the owner of such Bond for interest
thereon, in trust for the benefit of the owner of such Bond, who thereafter shall be restricted
exclusively to such moneys or United States Government Obligations for any claim for such
payment of whatsoever nature on his part, except as is provided in Section 5.06 hereof.
ARTICLE IX
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND BONDHOLDERS
Section 9.01. Events of Default. If any of the following events occur, it is hereby
defined as and declared to be and to constitute an "Event of Default":
(1) default in the due and punctual payment of the principal of or the interest
on any Bond hereby secured and outstanding and the continuance thereof for a period of
five days;
(2) default in the due and punctual payment of moneys required to be paid to
Trustee under the provisions of Article V hereof and the continuance thereof for a period
of five days; or
(3) default in the performance or observance of any other of the covenants,
agreements or conditions on Corporation's part contained in this Indenture, or in the
Bonds, and the continuance thereof for a period of 30 days after written notice thereof
to Corporation by Trustee, or by the owners of not less than 20% in aggregate principal
amount of Bonds outstanding hereunder.
The term "default," as used in Section 9.01 hereof, shall mean default by Corporation
in the performance or observance of any of the covenants, agreements or conditions on its part
contained in this Indenture, or in the Bonds, exclusive of any period of grace required to
constitute a default as an "Event of Default," as hereinabove provided, after giving the
_ respective notice for the respective ,periods above stated.
01/574936.2 20
Section 9.02. Acceleration. Upon the occurrence of an Event of Default, Trustee may,
and, upon the written request of the owners of 20% in aggregate principal amount of Bonds
outstanding hereunder, shall, by notice in writing delivered to Corporation, declare the principal
of all Bonds hereby secured then outstanding, and the interest accrued thereon, immediately due
and payable. This provision is subject, however, to the condition that, if at any time after such
declaration of principal and interest to be immediately due, and before any further action has
been taken other than such declaration, the principal amount of all Bonds which have matured
and all arrears of interest, together with the reasonable charges and expenses of Trustee, shall
be paid or caused to be paid, then the owners of a majority of principal amount of the Bonds
then outstanding, by notice in writing delivered to Trustee, may require Trustee to waive such
default and its consequences and rescind such declaration. Until it is required to make the
declaration hereinabove in this Section provided, Trustee shall have power to waive any default
arising hereunder if, in the opinion of Trustee, the same shall have been cured or adequate
satisfaction made therefor or if Trustee deems the declaration not to be in the best interest of the
Bondholders. No such waiver shall extend to or affect any subsequent default.
Section 9.03. Other Remedies. Upon the occurrence and a continuation of an Event of
Default, Trustee may on its own initiative, and shall upon the written request of the owners of
not less than 20% in principal amount of the Bonds then outstanding hereunder, and upon being
indemnified to its reasonable satisfaction against any and all costs, expenses, outlays, counsel
fees and other reasonable disbursements and against all liability, exercise any remedies available
under the Agreement and, to the extent consistent therewith, may sell, lease or manage any
portion of the Project and apply the net proceeds thereof in accordance with Section 9.07 of this
Article, and whether or not it has done so, proceed to take any other steps•needful for the
protection and enforcement of its rights and the rights of the owners of the Bonds as shall be
provided by law, including a suit, action or special proceeding in equity or at law.
Section 9.04. Limitation on Bondholders' Right To Institute Proceedings. No owner
of any of the Bonds shall have any right to institute any suit, action or proceeding in equity or
at law hereunder or for any other remedy hereunder unless such owner previously shall have
given to Trustee written notice of an Event of Default as herein provided and unless the owners
of not less than 20% in principal amount of the Bonds then outstanding shall have made written
request of Trustee, after the right to exercise such powers or rights of action, as the case may
be, shall have accrued, either to proceed to exercise the powers herein granted or to institute
such action, suit or proceeding in the name of Trustee and Trustee shall have refused or
neglected to comply with such request within a reasonable time and after being afforded a
reasonable opportunity to do so and after having been offered security and indemnity satisfactory
to it against the costs, expenses and liabilities to be incurred therein or thereby as aforesaid. All
actions to enforce any provision of this Indenture shall be instituted and maintained for the equal
benefit of all owners of the Bonds, except that nothing herein contained shall impair the right
of any owner of any Bond at or after the maturity thereof to reduce the same to judgment.
Section 9.05. Possession of Bonds Not Required for Enforcement. All rights of action
under this Indenture or under any of the Bonds secured hereby enforceable by Trustee may be
01/574936.2 21
1 I J l 9 ,
enforced without the possession of any of the Bonds or the production thereof at the trial or
other proceedings relative thereto, and any such suit or proceeding instituted by Trustee shall
be brought for the ratable benefit of the owners of the Bonds, subject to the provisions of this
Indenture.
Section 9.06. Waiver. In the event the Bondholders or Trustee waive any default or
breach of duty, such waiver shall not impair any right or power exercisable hereunder by the
Bondholders or Trustee nor shall such waiver be construed to be or be a waiver of any
subsequent default or breach.
Section 9.07. Application of Moneys. Anything in this Indenture to the contrary
notwithstanding, if at any time the moneys in the Bond Fund shall not be sufficient to pay the
interest on or the principal of the Bonds as the same shall become due and payable (either by
their terms or by acceleration of maturities under the provisions of Section 9.02 of this Article),
such moneys, together with any moneys then available or thereafter becoming available for such.
purpose, whether through the exercise of the remedies provided for in this Article or otherwise,
shall be applied as follows:
(1) unless the principal of all the Bonds shall have become or shall have been
declared due and payable, all such moneys shall be applied as follows:
(a) FIRST: to the payment to the persons entitled thereto of all
installments of interest then due and payable in the order in which such
installments became due and payable and, if the amount available shall not be
sufficient to pay in full any particular installment, then to the payment, ratably,
according to the amounts due on such installment, to the persons entitled thereto,
without any discrimination or preference;
(b) SECOND: to the payment to the persons entitled thereto of the
unpaid principal of any of the Bonds which shall have become due and payable
(other than Bonds called for redemption for the payment of which moneys are
held pursuant to the provisions of this Indenture), in the order of their stated
payment dates, with interest on the principal amount of such Bonds from the
respective dates upon which such Bonds became due and payable, and, if the
amount available shall not be sufficient to pay in full the principal of the Bonds
by their stated terms due and payable on any particular date, together with such
interest, ratably, according to the amount of such interest due on such date, and
then to the payment of such principal, ratably, according to the amount of such
principal due on such date, to the persons entitled thereto without any
discrimination or preference; and
(c) THIRD: to the payment of the interest on and the principal of the
Bonds, to the purchase and retirement of Bonds and to the redemption of Bonds,
all in accordance with the provisions of Articles II and III of this Indenture;
01/574936.2 22
.
•
•
(2) if the principal of all the Bonds shall have become or shall have been
declared due and payable, all such moneys shall be applied to the payment of the
principal and interest then due and unpaid upon the Bonds, without preference or priority
of principal over interest or of interest over principal, or of any installment of interest
over any other installment of interest, or of any Bond over any other Bond, ratably,
according to the amounts due respectively for principal and interest, to the persons
entitled thereto without any discrimination or preference; and
(3) if the principal of all the Bonds shall have been declared due and payable
and if such declaration shall thereafter have been rescinded and annulled under the
provisions of Section 9.02 of this Article, then, subject to the provisions of paragraph (2)
of this Section, in the event that the principal of all of the Bonds shall later become or
be declared due and payable, the moneys remaining in and thereafter accruing to the
Bond Fund shall be applied in accordance with the provisions of paragraph (1) of this
Section.
Whenever moneys are to be applied by Trustee pursuant to the provisions of this Section,
such moneys shall be applied by Trustee at such times, and from time to time, as Trustee in its
sole discretion shall determine, having due regard to the amount of such moneys available for
application and the likelihood of additional moneys becoming available for such application in
the future, and the deposit of such moneys, or otherwise setting aside such moneys, in trust for
the proper purpose shall constitute proper application by Trustee; and Trustee shall incur no
liability whatsoever to any Bondholder or to any other person for any delay in applying any such
moneys, so long as Trustee acts with reasonable diligence, having due regard to the
circumstances, and ultimately applies the same in accordance with such provisions of this
Indenture as may be applicable at the time of application by Trustee. Whenever Trustee shall
exercise such discretion in applying such moneys, it shall fix the date (which shall be an interest
payment date unless Trustee shall deem another date more suitable) upon which such application
is to be made and upon such date interest on the amounts of principal to be paid on such date
shall cease to accrue. Trustee shall give such notice as it may deem appropriate of the fixing
of any such date, and shall not be required to make payment to the owner of any Bond until such
Bond shall be surrendered to Trustee for appropriate endorsement, or for cancellation if fully
paid.
Section 9.08. Restoration to Former Position. In case any proceedings taken by Trustee
on account of any default shall have been discontinued or abandoned for any reason, then and
in every such case Corporation, Trustee and the Bondholders shall be restored to their former
positions and rights hereunder, respectively, and all rights, remedies, powers and duties of
Trustee shall continue as though no proceeding had been taken.
Section 9.09. Bondholders' Right To Direct Proceedings. Anything in this Indenture
to the contrary notwithstanding, the owners of a majority in principal amount of the Bonds then
outstanding hereunder shall have the right, by an instrument or concurrent instruments in writing
executed and delivered to Trustee, to direct the method and place of conducting all remedial
01/574936.2 23 •
•
proceedings to be taken by Trustee hereunder, provided that such direction shall not be otherwise
than in accordance with law and the provisions of this Indenture.
ARTICLE X
THE TRUSTEE
Section 10.01. Acceptance of Trusts. Trustee hereby accepts the trusts imposed upon.
it by this Indenture and agrees to perform said trusts as an ordinarily prudent trustee under a
corporate mortgage. Trustee may resign at any time by giving not less than 60 days' notice to
Corporation and to City and, within five days after giving such notice, by mailing to each
Bondholder of record by first-class mail a copy of such notice. Trustee may be removed at any
time upon the written request or upon the affirmative vote of the owners of 51% in principal.
amount of Bonds outstanding. In the event of such resignation or removal, a successor may be
appointed by the owners of 51% in principal amount of the Bonds.outstanding, and such
successor shall have all the powers and obligations of Trustee theretofore vested in its
predecessor, provided that, unless and until the successor trustee shall have been appointed by
the owners of the Bonds as aforesaid, Corporation shall forthwith appoint a trustee to fill such
vacancy. Any successor trustee shall be a bank or trust company in either of the cities of
Lincoln or Omaha, Nebraska, and having a capital and surplus of not less than $10,000,000.
Section 10.02. Limitations on Liability. The duties and obligations of Trustee shall be
determined solely by the express provisions of this Indenture, and Trustee shall not be liable
except for the performance of such duties and obligations as are specifically set forth in this
Indenture. Trustee shall be protected when acting in good faith upon the advice of its counsel,
who may be bond counsel to Corporation. Trustee may conclusively rely upon any certificate
of Corporation executed by any two of the directors of Corporation and upon any requisition
certificate satisfying the requirements of Section 6.03 hereof. Trustee may require of
Corporation full information and advice as to the performance of all covenants, conditions and
agreements of Corporation contained in this Indenture or any supplement hereto, but Trustee
shall not be required to ascertain or inquire as to the correctness of any information, statements,
conclusions or opinions expressed in any certificate, resolution, report, opinion or other
document furnished to it pursuant to any provision of this Indenture.
Section 10.03. Dealings in Bonds. Trustee in its individual capacity may become the
- owner or pledgee of the Bonds with the same rights it would have if it were not Trustee
hereunder.
Section 10.04. Compensation. Trustee shall be entitled to reasonable compensation for
all services rendered by it in the execution, exercise or performance of any of the powers and
duties to be exercised or performed by it pursuant to the provisions of this Indenture and for the
reasonable expenses, charges and other disbursements incurred in connection with the exercise
and performance of said powers and duties, all of which under the Agreement are to be paid to
Trustee by City.
01/574936.2 24
•
ARTICLE XI
AMENDMENT OF INDENTURE
Section 11.01. Supplemental Indentures Not Requiring Consent of Bondholders.
Corporation may without the consent of the Bondholders, but with the consent of Trustee, from
time to time and at any time, amend or supplement this Indenture in such manner as not to be
inconsistent with the terms and provisions hereof, so as to thereby (a) cure any ambiguity or
formal defect or omission in this Indenture, including any subsequent amendments thereto;
(b) grant to and confer upon Trustee for the benefit of the Bondholders any additional rights,
remedies, powers, authority or security that may be lawfully granted to or conferred upon the
Bondholders or Trustee, or surrender any right, power or privilege reserved to or conferred
upon Corporation by this Indenture or any amendment thereto; (c) issue other Bonds in
accordance with the provisions of Article II hereof; (d) comply with such requirements of the
Code as are necessary in the opinion of nationally recognized bond counsel to make the interest
on the Bonds excludable from gross income of the Bondholders for federal income tax purposes;
or (e) to modify, alter, amend or supplement this Indenture in any other respect which in the
judgment of Corporation, as concurred in by Trustee, is not materially adverse to the
Bondholders.
Section 11.02. Supplemental Indentures Requiring Consent of Bondholders. With the
consent of the owners of not less than two-thirds of the Bonds then outstanding, Corporation,
from time to time and at any time, may amend this Indenture in any manner; provided, however,
that, without the specific consent of the owner of each Bond which would be affected thereby,
no such amendment shall permit or be construed as permitting (a) an extension of the maturity
of the principal of or the interest on any Bond issued hereunder, or (b) a reduction in the
principal amount of any Bond or a reduction in the rate of interest thereon, or (c) creation of
any different privilege or priority of any Bond or Bonds over any other Bond or Bonds, or (d) a
reduction in the aggregate principal amount of the Bonds required for consent to such
amendment to this Indenture, or (e) any release or lessening of the pledge and assignment of the
Basic Rent payable by City under the Agreement.
If the owners of not less than two-thirds in aggregate principal amount of the Bonds then
outstanding shall have consented to the amendment proposed, no owner of any Bond shall have
any right to object to any of the terms and provisions contained therein, or the operation thereof,
or in any manner to question the propriety of the execution thereof, or to enjoin or restrain
Trustee or Corporation from taking any action pursuant to the provisions thereof.
After the owners of the required percentage of Bonds shall have filed their consents to
the amending of this Indenture, Corporation shall mail to each Bondholder a copy of the
amendment together with a notice of such amending.
01/574936.2 25
If Trustee and Corporation shall so determine, new Bonds conforming to the amendment
shall be executed and delivered in exchange for Bonds then outstanding upon surrender of the
outstanding Bonds without charge to the owners thereof.
Upon delivery to Trustee of a copy of the amendment to this Indenture certified by the
Secretary of Corporation, together with an opinion of counsel to Corporation that such
amendment is in proper form and was duly adopted in accordance with the provisions hereof and
applicable law, this Indenture as it then exists and the Bonds shall be modified and amended in
accordance with such amendment, and thereafter the respective rights and duties under this
• Indenture of Corporation and the Bondholders shall be determined under this Indenture as so
amended. •
Section 11.03. Consent of Trustee Required. No amendment amending, changing or
modifying any of the rights or obligations of Trustee hereunder may be adopted without the
written consent of Trustee.
ARTICLE XII
AMENDMENT OF LEASE-PURCHASE AGREEMENT
Section 12.01. Amendment of Agreement Not Requiring Consent of Bondholders.
Corporation or Trustee, or each of them, may from time to time, without the approval of the
Bondholders, consent to any amendment, change or modification of the Agreement between
Corporation and City for the purpose of curing any ambiguity, formal defect or omission or
making any other change therein which, in the judgment of Trustee, is not to the prejudice of
Trustee or materially adverse to the Bondholders.
Section 12.02. Amendment of Agreement Requiring Consent of Bondholders. Except
for amendments, changes or modifications as provided in Section 12.01 hereof, no amendment,
change or modification of the Agreement shall be made without the ,written consent of the
owners of two-thirds in principal amount of all the Bonds outstanding, except for the purpose
of increasing the Basic Rent payable thereunder and making such other provisions as shall be
required to permit the issuance of Bonds of Other Series as authorized under this Indenture;
provided, however, that in no event shall the Agreement be amended to reduce the Basic Rent
payable by City or extend the date when such Basic Rent shall be due, without the consent of
the owners of all Bonds outstanding. The proportionate reduction of the amount of Basic Rent
due by City under the Agreement by reason of City's having prepaid a portion of the Bonds shall
not constitute an amendment of the Agreement.
Section 12.03. Consent of Trustee Required. No amendment, change or modification.
to the Agreement shall be made without the written consent of Trustee.
01/574936.2 26
•
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Execution of Instruments; Proof of Ownership. Any request, direction,
consent or other instrument in writing required by this Indenture, or any supplement hereto, to
be signed or executed by owners of Bonds may be in any number of concurrent instruments of
similar tenor and may be signed or executed by such owners in person or by an agent duly
appointed by an instrument in writing. Proof of the execution of any such instrument and of the
ownership of such Bonds shall be sufficient for any purpose of this Indenture, and shall be .
conclusive in favor of Trustee and Corporation with regard to any action taken by them under
such instrument, if made in the following manner:
(1) the fact and date of the execution by any person of any such instrument
may be proved by the certificate of any officer in any jurisdiction who, by the laws
thereof, has power to take acknowledgments of deeds to be recorded within such
jurisdiction, to the effect that the person signing such instrument acknowledged to him
the execution thereof, or by an affidavit of a witness to such execution;
(2) the fact of the holding of a Bond by any holder and the amount and
numbers or other descriptive details of such Bonds and the date of his holding the same
may be proved by the affidavit of the person claiming to be such holder, if such affidavit
shall be deemed by Trustee to be satisfactory or by a certificate issued by any trust
company, bank or other depository, wherever situated, if such certificate shall be deemed
by Trustee to be satisfactory, showing that at the date therein mentioned such person had
on.deposit with such trust company, bank or other depository the Bond described in such
certificate. Trustee may, nevertheless, in its discretion require further proof in cases
where it shall deem further proof desirable. For all purposes of this Indenture and of the
proceedings for the enforcement thereof, such persons shall be deemed to continue to be
the holder of such Bond until Trustee shall have received notice in writing to the
contrary.
Section 13.02. Counterparts. This Indenture may be simultaneously executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the
same instrument.
Section 13.03. No Personal Liability of Corporation Officials; Limited Liability of
Corporation to Bondholders. No covenant or agreement contained in the Bonds or in this
Indenture shall be deemed to be the covenant or agreement of any present or future official,
officer, agent or employee of Corporation, and neither the members of Corporation nor any
official executing the Bonds shall be liable personally on the Bonds or be subject to any personal
liability or accountability by reason of the issuance thereof.
01/574936.2 27
ti
} Except for the payment when due of the payments and the observance and performance
of the other agreements, conditions, covenants and terms required to be performed by it
contained in this Indenture, Corporation shall not have any obligation or liability to the
Bondholders with respect to this Indenture or the preparation, execution, delivery, transfer,
exchange or cancellation of the Bonds or the receipt, deposit or disbursement of the payments
by Trustee or with respect to the performance by Trustee of any obligation required to be
performed by it contained in this Indenture.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
•
•
01/574936.2 28 /
•
IL
•
„+
Section 13.04. Severability. If any provisions of this Indenture shall be held or deemed
to be or shall, in fact, be inoperative or unenforceable as applied in any particular case, for any
reason, such circumstances shall not have the effect of rendering the provision in question
inoperative or unenforceable in any other case or circumstance or of rendering any other
provision or provisions herein contained invalid, inoperative or unenforceable to any extent
whatever. The invalidity of any one or more phrases, sentences, clauses or paragraphs in this
Indenture contained shall not affect the remaining portions of this Indenture or any part thereof.
IN WITNESS WHEREOF, City of Omaha Northwest Library Facilities Corporation has
caused this Indenture to be executed in its behalf by its President and Secretary and its corporate
seal hereunto affixed, and to evidence its acceptance of the trusts hereby created First National.
Bank of Omaha has caused this Indenture to be executed in its name and behalf by duly
authorized officers and its official seal to be hereunto affixed, all as of the 1st day of August,
1997.
[SEAL] • CITY OF OMAHA NORTHWEST
LIBRARY FACILITIES CORPORATION
ATTEST:
By
By President
Secretary
[SEAL] FIRST NATIONAL BANK OF OMAHA,
Trustee
ATTEST:
By
By Authorized Officer
Authorized Officer
d -4-if"-1 ")41 :
/".-( .(7 - 1/4,4
01/574936.2 29
771
S
•
STATE OF NEBRASKA )
) SS.
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me this day of August, 1997 by
EILEEN M. WIRTH and VERDA H. BIALAC of CITY OF OMAHA NORTHWEST
LIBRARY FACILITIES CORPORATION, a Nebraska nonprofit corporation, on behalf of the
corporation.
WITNESS my hand and seal this day of , 1997.
Notary Public
STATE OF NEBRASKA )
) SS.
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me this day of August, 1997 by
and of FIRST NATIONAL BANK OF
OMAHA, a national banking association, on behalf of the bank.
WITNESS my hand and seal this day of August, 1997.
Notary Public
01/574936.2 30
1
•
EXHIBIT A
(FORM OF BOND)
Unless this certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to City of Omaha Northwest Library
Facilities Corporation or its agent for registration and transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name as is requested
by an authorized representative of DTC (and any payment is made to Cede & Co. or to such
other entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
UNITED STATES OF AMERICA
CITY OF OMAHA NORTHWEST LIBRARY FACILITIES CORPORATION
LEASE REVENUE BOND
(OMAHA PUBLIC LIBRARY PROJECTS)
SERIES 1997
No. R- $
MATURITY INTEREST DATED
DATE RATE DATE CUSIP
August 15, % August 15, 1997
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT: DOLLARS
AND NO CENTS ($ )
KNOW ALL MEN BY THESE PRESENTS that City of Omaha Northwest Library
Facilities Corporation ("Corporation"), a nonprofit corporation organized under the laws of the
State of Nebraska, for value received, promises to pay, but only out of the Bond Fund created
under Article V of the Indenture of Trust dated as of August 1, 1997 (the "Indenture") by and
between Corporation and First National Bank of Omaha, as trustee ("Trustee"), to the order of
the Registered Owner identified above, or registered assigns, on the Maturity Date specified
above, upon surrender hereof, the Principal Amount specified above, and in like manner to pay
01/574936.2
•
- V
•
1
•
interest on said sum from the Dated Date specified above at the Interest Rate per annum
specified above (based on a year of 360. days and twelve 30-day months) per annum
semiannually on February 15 and August 15 of each year, commencing on February 15, 1998,
until said principal sum is paid, except as the provisions hereinafter set forth with respect to
redemption of this Bond prior to maturity may become applicable hereto. Both principal of and
interest on this Bond are payable in lawful money of the United States of America. Payment
of principal shall be made at the principal corporate trust office of Trustee in Lincoln, Nebraska
or its successor. Payment of interest on any Bond interest payment date shall be made to the
Registered Owner hereof as of the Record Date (defined in the Indenture) and shall be paid
(i) by check or draft mailed on the Bond interest payment date to the Registered Owner as of
the close of business on the Record Date at its address as it appears on the registration books
of Corporation kept by Trustee on the Record Date or at such other address as is furnished to
Trustee in writing by such Registered Owner not later than the close of business on the Record
Date or (ii) by wire transfer to the Registered Owner of $1,000,000 in aggregate principal
amount of the Bonds upon written notice by the Registered Owner given to Trustee not later than
the close of business on the Record Date.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS BOND
SET FORTH ON THE REVERSE SIDE HEREOF AND SUCH FURTHER PROVISIONS
SHALL, FOR ALL PURPOSES, HAVE THE SAME EFFECT AS IF SET FORTH AT THIS
PLACE.
The Bonds are not a debt of the City of Omaha, Nebraska or a pledge of its faith and
credit but, together with interest thereon, are payable solely from the Rental Payments.
This Bond shall not be valid for any purpose until the Certificate of Authentication hereon
shall have been signed by Trustee.
IN WITNESS WHEREOF, Corporation has caused this Bond to be executed in its name
by the manual or facsimile signature of its President, to be impressed with its corporate seal and
to be attested by the manual or facsimile signature of its Secretary, all as of this 15th day of
August, 1997.
(SEAL) CITY OF OMAHA NORTHWEST LIBRARY
FACILITIES CORPORATION
ATTEST:
By
President
By
Secretary
01/574936.2 A-2.
3
•j 3
`_.
FORM OF REVERSE OF BOND
This Bond is one of an authorized issue of bonds limited to and .in the total amount of
Million Hundred Thousand Dollars ($ ) (the "Bonds"), dated
as even date and like tenor except as to maturity date and interest rate, issued for the purpose
of providing funds for the acquisition, construction, improving, furnishing and equipping of
improvements and additions to the Millard Branch Library, the Benson Branch Library and the
W. Dale Clark Library (the "Project"), which are leased to the City of Omaha, Nebraska
("City"). The Project has been leased to City under the Lease-Purchase Agreement dated as of
August 1, 1997 (the "Agreement") by and between Corporation and City. The principal of and
interest on the Bonds are to be paid out of Rental Payments (as that term is defined in the
Agreement) payable by City pursuant to the Agreement, which Rental Payments have been
assigned to Trustee under the Indenture, under which this Bond is issued; the provisions of the
Indenture, govern the rights of the owners of the Bonds. The Rental Payments are in an amount
sufficient to pay the principal of and interest on the Bonds as the same become due.
The Bonds maturing on August 15, 2012 and 2017 are subject to redemption by
Corporation from any source, in whole at any time or in part, on any interest payment date, in
such order of maturities as determined by Corporation (and by lot or other random selection.
method within a maturity) on or after August 15, 2007 at the redemption prices expressed as a
percentage of principal amount of the Bonds to be redeemed set forth below, plus accrued
interest to the date of redemption:
Redemption Period (dates inclusive) Redemption Price
August 15, 2007 to August 14, 2008 102%
August 15, 2008 to August 14, 2009 101
August 15, 2009 and thereafter 100
The Bonds maturing on August 15, 2012 and 2017 are subject to mandatory sinking fund
redemption on the dates provided in the Indenture at a redemption price equal to the principal
amount thereof, plus accrued interest to the redemption date, without a premium.
The Bonds, of whatever maturity, shall also be subject to redemption at any time, in
whole or in part, in the event of damage to or destruction of all or a part of the Millard Project,
the Benson Project or the W. Dale Clark Project (each as defined in the Agreement),
respectively, or the condemnation thereof and the election by City that any proceeds resulting
from such damage, destruction or condemnation award shall not be used to rebuild or restore
the Millard Project, the Benson Project or the W. Dale Clark Project, as applicable; any such
redemption shall be in a principal amount determined pursuant to the Indenture at a redemption.
price equal to the principal amount of the Bonds being redeemed, without premium, plus accrued
interest thereon to the date of redemption.
If a Bond in book-entry-only form is to be called for redemption, notice will be mailed
to the Depository (defined in the Indenture) not less than 30 days nor more than 60 days prior
01/574936.2 A-3 ` .
to the redemption date. If a Bond not in book-entry-only form is to be called for redemption,
notice will be given by mailing a copy of the redemption notice by first class mail not less than
30 days prior to the date fixed for redemption to the registered owner of each Bond to be
redeemed at the address shown on the registration books of Corporation kept by Trustee. All.
maturities of the Bonds so called for redemption will cease to bear interest after the specified
redemption date, provided funds for their redemption are on deposit at the place of payment at
that time.
This Bond is transferable by the registered owner hereof by execution of an assignment
in the form appearing on this Bond, and upon delivery of this Bond and completed assignment
to Trustee, but subject to the, limitations imposed by law and upon payment of all charges
incurred by Corporation and Trustee.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This Bond is one of the bonds designated herein and issued under the provisions of the
within-mentioned Indenture.
Date: FIRST NATIONAL BANK OF OMAHA,
Trustee
By
Authorized Officer
01/574936.2 A-4
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FORM OF ASSIGNMENT
FOR VALUE RECEIVED, , the undersigned, hereby sells,
assigns and transfers unto (Tax Identification or Social Security No. )
the within-mentioned Bond and all rights thereunder, and hereby irrevocably constitutes and
appoints , attorney, to transfer the within Bond on the
books kept for registration thereof, with full power of substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: The signature to this assignment
must correspond with the name as it appears
upon the face of the within Bond in every
NOTICE: Signature(s) must be guaranteed particular, without alteration or enlargement
by a financial institution that is a member of or any change whatsoever.
the Securities Transfer Agent Medallion
Program ("STAMP"), the Stock Exchange
Medallion Program ("SEMP"), the
New York Stock Exchange, Inc. Medallion
Signature Program ("MSP") or such other
"signature guarantee program" as may be
determined by the Registrar in addition to,
or in substitution for, STAMP, SEMP or
MSP, all in accordance with the Securities
Exchange Act of 1934, as amended.
01/574936.2 A-5
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EXHIBIT B
FORM OF REQUISITION
01/574936.2
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y a
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Requisition No.
REQUISITION FROM ACQUISITION FUND FOR
CITY OF OMAHA NORTHWEST LIBRARY FACILITIES CORPORATION
LEASE REVENUE BONDS
(OMAHA PUBLIC LIBRARY PROJECTS)
SERIES 1997
•
TO: First National Bank of Omaha, as Trustee
Corporate Trust Department
16th and Dodge Streets
Omaha, NE 68102
FROM: City of Omaha Northwest Library Facilities Corporation
Pursuant to Section 6.03 of the Indenture of Trust (the "Indenture") dated as of August 1,
1997 by and between City of Omaha Northwest Library Facilities Corporation ("Corporation")
and you, you are hereby directed to disburse from the Acquisition Fund referred to in the
Indenture (the "Acquisition Fund") the amount indicated below.
1. The name and address of the person, firm or corporation to whom payment is
due:
2. Amount to be disbursed: $
Previous disbursements •
Cumulative disbursements after this requisition $
3. The disbursement herein requested is for expenses properly incurred, pursuant to
Section 6.02 of the Indenture, and is a proper charge against the Acquisition Fund for payment
of [SELECT ONE: expenses pursuant to Section 6.02(1) of the Indenture; costs of the Millard
Project; costs of the Benson Project; costs of the W. Dale Clark Project] and has not been the
basis of any previous disbursement.
4. A bill or bills or other evidence of each such obligation of Corporation is hereby
attached.
01/574936.2
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Dated this day of , 19 .
CITY OF OMAHA NORTHWEST LIBRARY
FACILITIES CORPORATION
By
Name
Title
01/574936.2 • B-2
A •
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it,10
EXHIBIT C
FORM OF BLANKET ISSUER
LETTER OF REPRESENTATIONS
[SEE ITEM .]
Teet 4{
01/574936.2
AeAdjea/ ,ice.
8/�-91 etrap
Exhibit D
LETTER AGREEMENT
August 21, 1997
First National Bank of Omaha, as Trustee
16th and Dodge Streets •
Omaha, NE 68102
$8,000,000
City of Omaha Northwest Library Facilities Corporation
• Lease Revenue Bonds
(Omaha Public Library Projects)
Series 1997
Ladies and Gentlemen:
(a) This Letter Agreement is executed and delivered by the City of Omaha, Nebraska
(the "City") and First National Bank of Omaha, as Trustee (the "Trustee") under that certain
Indenture of Trust dated as of August 1, 1997 (the "Indenture"), for the benefit of the holders
of $8,000,000 City of Omaha Northwest Library Facilities Corporation Lease Revenue Bonds
(Omaha Public Library Projects), Series 1997 (the "Bonds") and to facilitate compliance with
Section (b)(5)(i) of Securities and Exchange Commission Rule 15c2-12 under the Securities
Exchange Act of 1934, as amended (17 C.F.R. § 240.15c2-12) (the "Rule"). This Letter
Agreement is being executed and delivered to assist Kirkpatrick, Pettis, Smith, Polian Inc.
(the "Underwriter"), as Participating Underwriter under the Rule, to comply with the Rule.
Capitalized terms used in this Letter Agreement and not otherwise defined in the Indenture shall
have the meanings assigned such terms in paragraph (b) hereof.
(b) The following are the definitions of the capitalized terms used herein and not
otherwise defined in the Indenture:
"Annual Financial Information" means the financial information or operating data
with respect to the City, provided at least annually, of the type included in Appendix A
to the final Official Statement dated August [ ], 1997 relating to the Bonds. The
financial statements included in the Annual Financial Information shall be prepared in
accordance with generally accepted accounting principles ("GAAP") for governmental
01/574932.2
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units as prescribed by the Government Accounting Standards Board ("GASB"). Such
_ financial statements may, but are not required to, be Audited Financial Statements.
"Audited Financial Statements" means the City's annual financial statements,
prepared in accordance with GAAP for governmental units as prescribed by GASB,
which financial statements shall have been audited by the independent certified public
accounting firm or firms selected by the City Council Audit Committee.
"Material Event" means any of the following events, if material, with respect to
the Bonds:
(i) Principal and interest payment delinquencies;
(ii) Non-payment related defaults;
(iii) Unscheduled draws on debt service reserves reflecting financial
difficulties;
(iv) Unscheduled draws on credit enhancements reflecting financial
difficulties;
(v) Substitution of credit or liquidity providers, or their failure to
perform;
(vi) Adverse tax opinions or events affecting the tax-exempt status of
the Bonds;
(vii) Modifications to rights of Bondholders;
(viii) Bond calls (other than mandatory sinking fund redemptions);
(ix) Defeasances;
(x) Release, substitution or sale of property securing repayment of the
Bonds; and
(xi) Rating changes.
"Material Event Notice" means written or electronic notice of a Material Event.
"NRMSIR" means a nationally recognized municipal securities information
repository, as recognized from time to time by the Securities and Exchange Commission
by no-action letter for the purposes referred to in the Rule. The NRMSIRs as of the date
of this Letter Agreement are set forth in Exhibit A hereto.
01/574932.2 2
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"SID" means a state information depository as operated or designated by the State
of Nebraska and recognized by the Securities and Exchange Commission by no-action
letter as such for the purposes referred to in the Rule. There is not a SID as of the date
of this Letter Agreement.
(c) The City undertakes to provide the following information as provided in this
Letter Agreement:
(1) Annual Financial Information;
(2) Audited Financial Statements, if any; and
(3) Material Event Notices.
(d)(1) The City shall while any Bonds are Outstanding provide the Annual Financial.
Information on or before the date which is 270 days after the end of each fiscal year of the City
• (the "Submission Date") to the Trustee, who shall provide such Annual Financial Information
to each then existing NRMSIR and the SID, if any, on or before the date which is five days after
the Submission Date (the "Report Date") while any Bonds are Outstanding or, if not received
by the Trustee by the second Business Day prior to the Report Date, then within five Business
Days of its receipt by the Trustee. The City shall include with each submission of Annual.
Financial Information to the Trustee a written representation addressed to the Trustee to the
effect that the Annual Financial Information is the Annual Financial Information required hereby
and that it complies with the applicable requirements hereof. If the City changes its fiscal year,
it shall provide written notice of the change of fiscal year to the Trustee and to each then
existing NRMSIR or the Municipal Securities Rulemaking Board ("MSRB") and the SID, if any.
It shall be sufficient if the City provides to the Trustee and the Trustee provides to each then
existing NRMSIR and the SID, if any, any or all of the Annual Financial Information by specific
reference to documents previously provided to each NRMSIR and the SID, if any, or filed with
the Securities and Exchange Commission and, if such a document is a final official statement
within the meaning of the Rule, available from the MSRB.
(2) If not provided as part of the Annual Financial Information, the City shall provide
the Audited Financial Statements to the Trustee when and if available while any Bonds are
Outstanding and the Trustee shall then promptly provide each then existing NRMSIR and the
SID, if any, with such Audited Financial Statements.
(3)(i) If a Material Event occurs while any Bonds are Outstanding, the City shall
provide written or electronic notice of a Material Event in a timely manner to the Trustee. The
Trustee shall promptly prepare a Material Event Notice, which shall be so captioned and shall
prominently state the date, title and CUSIP numbers of the Bonds, and shall promptly provide
the Material Event Notice to each then existing NRMSIR or the MSRB and the SID, if any.
01/574932.2 3
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(ii) The Trustee shall promptly advise the City whenever, in the course of performing
its duties as Trustee hereunder or under the Indenture, the Trustee identifies an occurrence
which, if material, would require the City to provide a Material Event Notice pursuant to
subparagraph (d)(3)(i), provided that the failure of the Trustee to so advise the City shall not
cause a breach by the Trustee of any of its duties and responsibilities hereunder.
(4) The Trustee shall, without further direction or instruction from the City, provide
in a timely manner to each then existing NRMSIR or the MSRB and to the SID, if any, notice
of any failure by the City while any Bonds are Outstanding to provide to the Trustee Annual
Financial Information on or before the Report Date (whether caused by failure of the City to
provide such information to the Trustee by the Submission Date or for any other reason). For
the purposes of determining whether information received from the City is Annual Financial
Information, the Trustee shall be entitled conclusively to rely on the City's written representation
made pursuant to paragraph (d)(1) hereof.
(5) If the City provides to the Trustee information relating to the City or the Bonds,
which information is not designated as a Material Event Notice, and directs the Trustee to
provide such information to information repositories, the Trustee shall provide such information
in a timely manner to the MSRB and the SID, if any.
(6) The Trustee shall determine each year prior to the Report Date the name and
address of each NRMSIR and the SID, if any.
(e) The continuing obligation hereunder of the City to provide Annual Financial.
Information, Audited Financial Statements, if any, and Material Event Notices shall terminate
immediately once the Bonds no longer are Outstanding. This Letter Agreement, or any
provision hereof, shall be null and void in the event that the City delivers to the Trustee an
opinion of nationally recognized bond counsel to the effect that those portions of the Rule which
require this Letter Agreement, or any such provision, are invalid, have been repealed
retroactively or otherwise do not apply to the Bonds, provided that the Trustee shall have
provided notice of such delivery and the cancellation of this Letter Agreement or any provision
hereof to each then existing NRMSIR or the MSRB and the SID, if any.
(f) This Letter Agreement may be amended by the City and the Trustee, without the
consent of the Bondholders, but only upon the delivery by the City to the Trustee of the
proposed amendment and an opinion of nationally recognized bond counsel to the effect that such
amendment, and giving effect thereto, will not adversely affect the compliance of this Letter
Agreement and by the City with the Rule and that such amendment complies with this
paragraph (f), provided that the Trustee shall have provided notice of such delivery and of the
amendment to each then existing NRMSIR or the MSRB and the SID, if any. Any such
amendment shall satisfy the following conditions:
•
01/574932.2 4
•
(1) The amendment may only be made in connection with a change in
circumstances that arises from a change in legal requirements, change in law or change
in the identity, nature or status of the City, or type of business conducted;
(2) This Letter Agreement, as amended, would have complied with the
requirements of the Rule at the time of the primary offering, after taking into account
any amendments or interpretations of the Rule, as well as any change in circumstances;
and
(3) The amendment does not materially impair the interest of holders of the
Bonds, as determined by nationally recognized bond counsel, or by approving vote of
holders of the Bonds pursuant to the terms of the Indenture at the time of the
amendment.
The initial Annual Financial Information after the amendment shall explain, in narrative form,
the reasons for the amendment and the effect of the change in the type of operating data or
financial information being provided.
(g) Any failure by the parties hereto to perform in accordance with this Letter
Agreement shall not constitute an "Event of Default" under the Indenture or the Lease Purchase
Agreement, and the rights and remedies provided by the Indenture upon the occurrence of an
"Event of Default" shall not apply to any such failure. The Trustee shall not have the power
or duty to enforce this Letter Agreement. If the City fails to comply herewith, any Bondholder
may take such actions as may be necessary and appropriate, including seeking specific
performance by court order, to cause the City to comply with its obligations hereunder.
(h) This Letter Agreement shall be governed by and construed in accordance with the
laws of the State of Nebraska, provided that to the extent this Letter Agreement addresses
matters of federal securities laws, including the Rule, this Letter Agreement shall be construed
in accordance with such federal securities laws and official interpretations thereof.
(i) Article X of the Indenture is hereby made applicable to this Letter Agreement as
if this Letter Agreement were (solely for this purpose) contained in the Indenture. The Trustee
shall have only such duties as are specifically set forth in this Letter Agreement, and the City
agrees, subject to the availability of appropriations of funds to it therefor and other moneys
legally available for the purpose, to indemnify and hold harmless the Trustee from and against
any and all claims, damages, losses, liabilities, costs or expenses whatsoever which the Trustee
may incur (or which may be claimed against the Trustee by any person or entity whatsoever)
arising out of or in the exercise or performance of its powers and duties hereunder, but
excluding liabilities due to the Trustee's gross negligence or willful misconduct.
(j) This Letter Agreement shall inure solely to the benefit of the City, the Trustee,
the Underwriter, the City of Omaha Northwest Library Facilities Corporation and the holders
from time to time of the Bonds and shall create no rights in any other person or entity.
01/574932.2 5
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(k) This Letter Agreement may be simultaneously executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and the same
instrument.
Very truly yours,
[SEAL] CITY OF OMAHA, NEBRASKA
ATTEST:
By
Mayor
City Clerk
APPROVED AS TO FORM:
Ass�tantit`/ rney
Acknowledged and Accepted as of
the date first above written:
FIRST NATIONAL BANK OF OMAHA,
as Trustee
By
Authorized Signatory
01/574932.2 6
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EXHIBIT A
EXHIBIT A TO LETTER AGREEMENT
Nationally Recognized Municipal Securities Information Repositories
approved by the Securities and Exchange Commission
1. Bloomberg Municipal Repository 5. Municipal Security Disclosure Archive
Municipal Department 559 Main Street
Post Office Box 840 Hudson,MA 01749
Princeton,NJ 08542-0840 Internet address:http://www.municipal.com
Internet address:MUNIS@bloomberg.com Telephone: 800/580-3670
Telephone: 609/279-3200 FAX: 508/562-1969
FAX: 609/279-5962 and 609/279-5963
6. Thomson NRMSIR
Expedited Delivery Address: Secondary Market Disclosure
100 Business Park Drive 3 Floor, 395 Hudson Street
Skillman, NJ 08558 New York, NY 10014
Internet address:Disclosure@muller.com
2. Disclosure, Inc. Contact: Ms. Caroline Chin
Commercial Indexing Telephone: 212/807-3767
5161 River Road FAX: 212/378-0952
Bethesda,MD 20816
Contact: Ms. Sherri Sewalt 7. DPC Data Inc.
Telephone: 301/718-2390 One Executive Drive
FAX: 301/951-1429 Fort Lee, NJ 07024
Internet address: nrmsir@dpcdata.com
3. JJ Kenny Information Services Telephone: 201/346-0701
The Repository FAX: 201/947-0107
16 Floor, 65 Broadway
New York, NY 10006
Contact: Ms. Joan Horai, Repository
Telephone: 212/770-4568
FAX: 212/797-7994
4. Moody's NRMSIR
Public Finance Information Center
99 Church Street
New York, NY 10007-2796
Main Telephone: 800/339-6306
Contact: Ms. Claudette Stephenson
Telephone: 212/553-0345
FAX: 212/553-1460
01/574932.2
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MOTION BY COUNCILMEMBER
I hereby move to amend Council Document No. /,51?' , Current Series, by substituting
the attached exhibits go the Bond Ordinace in lieu of the existing exhibits,to wit:
Exhibit A-Lease-Purchase Agreement
Exhibit B- Site Lease Attachment
Exhibit C-Indenture of Trust
Exhibit D- Letter Agreement
APPROVED AS TO FORM:
Assis City Att rney
tiO :01 S- CITY L6
0 Ai 311
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Exhibit A
CITY OF OMAHA NORTHWEST LIBRARY FACILITIES CORPORATION,
as Lessor
• to
CITY OF OMAHA, NEBRASKA,
as Lessee
LEASE-PURCHASE AGREEMENT
Dated as of August 1, 1997
Return Copy to:
ATI Title Company
3154 South 19th Street
Omaha, NE 68102
Attention:
01/574934.2
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LEASE-PURCHASE AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is not a part of the Lease-Purchase Agreement and is for
convenience of reference.)
Page
RECITALS 1
Section 1. Term of Lease 1
Section 2. Rental Payments 2
Section 3. Place of Payment and Assignment of Rentals 4
Section 4. Repairs and Maintenance 4
Section 5. Insurance, Damage or Destruction 5
Section 6. Condemnation 6
Section 7. Indemnification of Corporation 6
Section 8. Corporation's Right of Inspection 7
Section 9. Alterations, Additions and Improvements 7
Section 10. Use of Premises 7
Section 11. Subletting 7
Section 12. No Right of Surrender 8
Section 13. Acquisition of the Project 8
Section 14. Termination of Leasehold 10
Section 15. Default 10
Section 16. Donations to City 11
Section 17. Financing 11
01/574934.2
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• Section 18. Amendment of This Agreement 11
Section 19. Refund of Sales Tax 11
Sect
ion 20. Discrimination 12
Section 21. Authority of Parties 12
Section 22. Compliance With Laws • 12
Section 23. Notices 12
Section 24. Waiver 12
Section 25. No Merger er 13
Section 26. Benefit 13
Section 27. Section Captions 13
TESTIMONIUM, SIGNATURES, AND SEALS 13
EXHIBIT A—Schedule of Basic Rent Payable by the City of Omaha, Nebraska
APPENDIX A—Leasehold Property Description—Millard Project
APPENDIX B—Leasehold Property Description—Benson Project
P Y
APPENDIX C—Leasehold Property Description—W. Dale Clark Project
01/574934.2 ii ?'
LEASE-PURCHASE AGREEMENT
THIS LEASE-PURCHASE AGREEMENT is made and entered into as of this 1st day
of August, 1997 by and between CITY OF OMAHA NORTHWEST LIBRARY FACILITIES
CORPORATION, a Nebraska nonprofit corporation ("Corporation"), and the CITY OF
OMAHA, NEBRASKA, a municipal corporation ("City").
RECITALS:
Corporation hereby leases to City (i) the property described at Appendix A hereto,
together with all improvements of every kind and description, including such buildings,
structures, fixtures, equipment and personal property thereon and any property of every kind,
whether real or personal, as may, during the term hereof, be situated thereon (the "Millard
Project") and (ii) the property described at Appendix B hereto, together with all improvements
of every kind and description, including such buildings, structures, fixtures, equipment and
personal property thereon and any property of every kind, whether real or personal, as may,
during the term hereof, be situated thereon (the "Benson Project"), (iii) the property described
at Appendix C hereto, together with all improvements of every kind and description, including
such buildings, structures, fixtures, equipment and personal property thereon and any property
of every kind, whether real or personal, as may, during the term hereof, be situated thereon (the
"W. Dale Clark Project," and together with the Millard Project and the Benson Project, the
"Project").
Section 1. Term of Lease. The term of this Lease-Purchase Agreement (this
"Agreement") shall be approximately 20 years beginning as of the date hereof and ending on
August 15, 2017, unless sooner terminated as hereinafter provided.
01/574934.2
Section 2. Rental Payments.
(a) Basic Rent. City shall pay to Corporation cash Basic Rent in the amounts
and on or before the dates shown on Exhibit A which is attached hereto and made a part
hereof by this reference. It is the intention of Corporation and City that the Basic Rent
herein specified shall be net to Corporation in each year during the term of this
Agreement, that all costs, expenses and obligations of every kind (except as otherwise
specifically provided in this Agreement) which may arise or become due with respect to
the Project during the term of this Agreement shall be paid by City and that Corporation
shall be indemnified by City against all such costs, expenses and obligations. In addition
to Basic Rent, City agrees to pay as Additional Rent the items set forth below under (b).
If any Basic or Additional Rent (collectively, the "Rental Payments") is not paid when
due, such rent shall draw interest at the rate of 10% per annum from the due date until
paid.
(b) Additional Rent. City acknowledges:
(i) that under present law, no part of the Project will be subject to
taxation by the State of Nebraska or any political or taxing subdivision thereof;
that Corporation has relied on this factor, among others, in making this
Agreement but that, if the Project should be subject to taxation, City shall pay
such taxes so that the Basic Rent will be net to Corporation;
(ii) that to raise the funds to pay for the Project as provided in
Section 13 hereof, Corporation will issue its lease revenue bonds in the aggregate
principal amount of$8,000,000 (the "Bonds"), payable from the Basic Rent; that '
01/574934.2 2 `
First National Bank of Omaha, as trustee ("Trustee"), will serve under the
Indenture of Trust dated as of August 1, 1997 between Trustee and Corporation
(the "Indenture") under which the Bonds shall be issued; and that there will be
fees and expenses due to Trustee which shall be payable by City; and
(iii) that there will be utility, operation, maintenance and other charges
incurred in the use of the Project which shall be paid by City.
Accordingly, City agrees to pay, as Additional Rent, the following:
(A) all taxes and assessments, general and special, levied or
assessed with respect to the Project, or any part thereof, during the term
hereof, including any taxes due on the commencement of the term hereof,
• and all water and sewer charges, assessments and other governmental
charges and impositions whatsoever, foreseen and unforeseen, and all
other utility, operation and maintenance charges incurred in the operation,
maintenance and use of the Project, with Corporation promptly forwarding
to City any notice, bill or other advice received by Corporation regarding
any such taxes, assessments or charges (provided that any failure by
Corporation so to forward any such notice, bill or other advice shall not
release City from its obligation to pay hereunder);
(B) the fees and expenses of Trustee under the Indenture
governing the issuance of the Bonds, with City paying such fees and
expenses as statements are rendered by Trustee to City; and
01/574934.2 3
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(C) the expenses in connection with any audit or examination
P
of Corporation's records requested by City.
Section 3. Place of Payment and Assignment of Rentals. All Basic Rent shall be paid
directly to Trustee for the benefit of the owners of the Bonds issued by Corporation. Trustee
is the assignee of all of Corporation's rights to collect Basic Rent due hereunder, and, as such
assignee, Trustee may enforce Corporation's rights hereunder to collect and receive Basic Rent.
City shall have the right at its option, exercisable at any time, to prepay the Basic Rent
without prepayment penalty or premium and thereby to terminate this Agreement at any time
while not in default of this Agreement upon 30 days' prior written notice to Corporation and the
payment by City to Corporation (or to Trustee while any of the Bonds are outstanding) of an
amount sufficient to pay the principal of all then outstanding Bonds, plus any redemption
premium due on such Bonds on their first permitted redemption date, plus interest to accrue on
such Bonds to such redemption date. In such event, City shall continue to pay Trustee's fees
and the Additional Rent items as specified in Section 2(b) hereof until all Bonds are fully paid.
Section 4. Repairs and Maintenance. Throughout the term of this Agreement, City
shall, at its own expense (but insurance proceeds may be used), put and maintain the Project in
good and safe condition and will make or cause to be made all necessary repairs thereto, both
interior and exterior, structural and nonstructural, ordinary and extraordinary, however the
necessity or desirability for repairs may occur, and whether or not necessitated by fire, flood
or other casualty, wear, tear, obsolescence or defects, latent or otherwise. When used in this
Section, the term "repairs" shall include all necessary replacements, renewals, alterations and
betterments. All repairs made by City shall be at least equal in quality and class to the original
01/574934.2 4
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work. City shall also, at its own expense, put and maintain in good and safe order, and free
from dirt, snow, ice, rubbish and other obstructions or encumbrances, the public sidewalks,
gutters and curbs within and adjacent to the Project.
Section 5. insurance, Damage or Destruction. (a) City shall obtain and keep in force
during the term of this Agreement fire and extended coverage insurance with respect to the
Millard Project, the Benson Project and the W. Dale Clark Project, respectively, in an amount
at least equal to the full insurable value of the Millard Project, the Benson Project or the
W. Dale Clark Project, as applicable. The term "full insurable value," as used herein, shall
mean the actual replacement value or, at the option of City, any lesser amount which is equal
to or greater than the amount of all of the Bonds then outstanding. Such insurance shall name
City, Corporation and Trustee as insureds as their interest may appear. So long as City is not
in default hereunder, any loss shall be adjusted by and paid to City. City shall maintain
possession of the policies or certificates evidencing such insurance.
(b) Notwithstanding the foregoing, if City shall insure properties similar to the Project
by self insurance, City may, at its option, insure the Project, in whole or in part, by means of
an adequate self-insurance fund set aside and maintained out of its revenues.
(c) No damage to or destruction of any part of the Millard Project, the Benson Project
or the W. Dale Clark Project, whether by fire or any other casualty, shall entitle City to
terminate this Agreement or to fail to comply with any of its provisions or in any way suspend,
abate or reduce the Rental Payments then due or thereafter becoming due under the terms of this
Agreement as set forth in Section 2 hereof, unless City shall elect not to replace or restore the
Millard Project, the Benson Project or the W. Dale Clark Project, as applicable, and shall
01/574934.2 5 ti I
provide to Trustee funds sufficient to redeem a portion of the Bonds then outstanding in an
amount permitted pursuant to the Indenture.
(d) City shall deliver to the Trustee as named insured at or prior to the issuance of
the Bonds one or more owner's title insurance policies in the aggregate amount of$8,000,000
insuring that the City has fee simple title to the sites of the Millard Project, the Benson Project
and the W. Dale Clark Project.
Section 6. Condemnation. If at any time during the term of this Agreement the whole
or any part of the Millard Project, the Benson Project or the W. Dale Clark Project, including
the leasehold interest of the Corporation therein, shall be taken as a result of the exercise of the
power of eminent domain or by private purchase in lieu thereof, such taking shall in no way
affect the liability of City to pay the Rental Payments provided in Section 2 hereof and to
perform all of the other obligations of City hereunder, and City shall, at its own expense,
comply with all of the requirements in connection with such taking. Proceeds of any such
condemnation shall be paid to Corporation and applied on the last unpaid Basic Rent installment
for the Projects, unless City shall elect to have a portion of the Bonds redeemed in an amount
permitted by the Indenture.
Section 7. Indemnification of Corporation. City shall indemnify Corporation and any
of its officers, directors, agents or employees (collectively, the "Indemnified Parties") against
all liabilities, penalties, damages and expenses which may be imposed upon, incurred by or
asserted against the Indemnified Parties as a result of (a) City's performance of, or the failure
of City to perform, any obligation to be performed by City hereunder; (b) any use or condition
'
of the Project or any part thereof or any public street, alley, sidewalk, curb, passageway or
01/574934.2 6 1
space within or adjacent thereto; (c) any personal injury, including death resulting therefrom,
or property damage occurring on or about the Projects or any adjacent street, alley, sidewalk,
curb, passageway or space; (d) the failure of City to comply with any requirement of any
governmental authority; and (e) any construction lien or security agreement filed against the
Project or any part thereof.
Section 8. Corporation's Right of Inspection. Corporation, its agents and
representatives shall have the right to enter upon the Project at any reasonable time for the
purpose of inspection.
Section 9. Alterations, Additions and Improvements. City shall have the right to make
any alterations, additions or improvements to the Project, provided that any such alteration,
addition or improvement shall not cause a diminution of the value of the Project. Any
alterations, additions or improvements to the Project shall become a part of the Project and be
li required by this Agreement. In no event shall Corporation be obligated or q uired to make any
alterations, additions or improvements except as provided in Section 13 hereof.
Section 10. Use of Premises. The Project shall be used by City as public library
facilities and other such uses as City shall deem appropriate from time to time; provided,
however, that any other use of the Project shall not impair City's use of the Project as public
library facilities or the exclusion of interest on the Bonds from the gross income of the holders
thereof for federal income tax purposes.
Section 11. Subletting. City may sublet any part of the Project for any use consistent
with Section 10 hereof for a period not extending beyond the term of this Agreement; provided,
however, that such subletting may not impair City's use of the Project or the exclusion of
01/574934.2 7
interest on the Bonds from the gross income of the holders thereof for federal income taxation
• purposes. Such subletting shall not affect the obligation of City to pay the Rental Payments
required under Section 2 of this Agreement.
Section 12. No Right of Surrender. City shall have no right or privilege to surrender
the Project to Corporation, and City's abandonment of the Project or City's failure or inability
to use the Project at any time shall not relieve City of its obligation to pay the Rental Payments
required under Section 2 of this Agreement.
Section 13. Acquisition of the Project. Corporation agrees that it will acquire and
construct, or cause the acquisition and construction of, the Project, including the acquisition of
ui ment and personal property as are
furnishings,
such improvements and related fixtures, g , equipment
necessary for the Project to constitute improvements and additions to the Millard Branch
Library, the Benson Branch Library and the W. Dale Clark Library suitable for City's use. The
acquisition, construction, improving, furnishing and equipping of the Project shall be made in
accord with plans and specifications prepared by such Project architects and engineers with such
changes as may be made with the approval of City. Corporation shall have no responsibility for
the sufficiency of the Project or any part thereof. Corporation agrees to contribute toward the
cost of acquisition, construction, improving, furnishing and equipping of the Project such
proceeds of the sale of the Bonds as remain after the payment of expenses of issuing the Bonds.
Promptly after execution of this Agreement, Corporation will deposit the net proceeds of the sale
of the Bonds with Trustee to be disbursed in payment of costs of acquiring, constructing,
improving, furnishing and equipping the Project.
01/574934.2 8 a •j
A leasehold interest in and to the Project, including any and all buildings, improvements
and other property (but not including the Project site in which Corporation has a leasehold
interest pursuant to the Site Lease Agreement (the "Lease") dated as of August 1, 1997 between
City and Corporation), shall vest in Corporation as such property becomes a part of the Project,
and Corporation shall continue to have such interest therein until City has satisfied all of its
obligations to Corporation under this Agreement and the Project is conveyed to City.
Upon completion of the acquisition and construction of the Project, City shall furnish to
Corporation a complete description of all property, both real and personal, covered by this
Agreement. City hereby confirms Corporation's ownership interest in such property, regardless
of whether such property may be initially purchased by Corporation.
Corporation shall have no responsibility to pay any costs of acquiring and constructing
the Project in excess of the net proceeds of the sale of the Bonds and other moneys provided by
City to Corporation in respect of the Project.
City agrees that no delay, failure or insufficiency, for any reason whatsoever (including,
in particular, but without limitation, an insufficiency in the amount of Bond proceeds to pay the
cost of the Project), in the acquisition, construction or operation of the Project or any part
thereof, shall entitle City to terminate this Agreement or operate in any way to suspend, abate
or reduce the Rental Payments due or to become due under the terms of Section 2 of this
Agreement.
Corporation agrees that any and all amounts received by it from any contractor, supplier
or other person (or any surety under any bond) by reason of breach of contract, failure of
Ay
01/574934.2 9 �j
• performance, refunds or other adjustments shall be applied toward the costs of the acquisition,
construction or repair of the Project.
Corporation agrees to cooperate with City if City should request that Corporation issue
its additional or completion bonds and apply the proceeds thereof to additions to or the
completion of the Project provided that City shall first agree to pay a sufficient additional
amount of Rental Payments to provide for the timely payment of such additional or completion
bonds and related costs and expenses.
Section 14. Termination of Leasehold. Upon City's having paid all of the Rental
Payments and moneys due Corporation hereunder and the termination of this Agreement,
Corporation's leasehold interest in the Project pursuant to the Lease shall terminate, and City
shall have title to the Project free and clear of such leasehold interest.
Corporation further covenants and agrees that, after termination of this Agreement,
Corporation will donate to City any Bond proceeds or other moneys provided to Corporation by
City in respect of the Project and remaining with Corporation after paying all of its debts and
obligations in respect of the Project.
Section 15. Default. In the event City defaults in the performance of any of its
obligations under this Agreement and such default continues for a period of 30 days after written
notice thereof has been given by Corporation to City and Trustee, Corporation may declare this
Agreement terminated, and City shall thereupon surrender possession of the Project to
Corporation or to the Trustee pursuant to Section 9.03 of the Indenture; provided, however, no
such termination or surrender shall operate to relieve City of its obligation to Corporation to pay
the Rental Payments due hereunder pursuant to Section 2 hereof, including; but not limited to, '
Ol/574934.2 10 ^,�
the Basic Rent on the dates and in the amounts shown in Exhibit A. Such remedy shall not be
an exclusive remedy.
Section 16. Donations to City. City may receive and accept donations from any person,
firm, corporation or governmental body to assist in the acquisition, construction, improving,
furnishing and equipping of the Project. Any such donations so received by City (where the use
is not otherwise specified by the donor) shall be held in trust and used only to satisfy City's
obligations under this Agreement and to pay costs of acquiring the Project.
Section 17. Financing. City consents to and approves of the issuance by Corporation
of the Bonds in the aggregate principal amount of $8,000,000 dated August 1, 1997, on the
terms and conditions specified in the Indenture. City has undertaken to provide ongoing
disclosure for the benefit of Bondholders pursuant to Section (b)(5)(i)of Securities and Exchange
Commission Rule 15c2-12 under the Securities Exchange Act of 1934, as amended (17 C.F.R.,
§ 240.15c2-12), in that certain Letter Agreement dated the date of delivery of the Bonds between
the City and the Trustee.
Section 18. Amendment of This Agreement. City and Corporation agree that, this
Agreement being collateral for the Bonds, no amendment hereto shall be made without the
consent of Trustee.
Section 19. Refund of Sales Tax. Corporation acknowledges that any refund or rebate
of sales or use taxes which it may receive will be attributable to the sales and use tax exemption
of City, and, therefore, Corporation agrees to pay to City any refund or rebate of sales or use
taxes attributable to the acquisition of the Project. Corporation agrees to take such action, but
at City's expense, as City may request to obtain any such refund or rebate of sales or use taxes. ''
01/574934.2 1 1 .;'
+ ♦ 1
• City agrees that any refund or rebate of sales or use taxes which it receives, including amounts
remitted by Corporation pursuant to this Section 19, will be used to pay costs of acquiring the
Project.
Section 20. Discrimination. Corporation shall not, in performance of this contract,
discriminate or permit discrimination in violation of federal or state or local ordinances because
of race, color, sex, age, political or religious opinions, affiliations or national origin.
Section 21. Authority of Parties. Each of the parties to this Agreement represents that
it has full power and authority to execute, perform and carry out the terms of this Agreement.
Execution of this Agreement has been authorized and directed by appropriate resolutions of the
Board of Directors of Corporation and an ordinance of the City Council of City.
Section 22. Compliance With Laws. Corporation shall comply with all applicable laws,
ordinances, rules and regulations in connection with the acquisition of the Project.
Section 23. Notices. Any notices required or permitted under this Agreement shall be
in writing and shall be sent by certified or registered mail, postage prepaid, return receipt
requested, addressed to Corporation at 215 South 15th Street, Omaha, Nebraska 68102 and to
City at Omaha-Douglas Civic Center, 1819 Farnam Street, Omaha, Nebraska 68183 or to such
other address as a party shall designate. Any notice shall be deemed to have been given at the
time it is duly deposited in any United States Post Office.
Section 24. Waiver. Any waiver at any time by a party to this Agreement of its rights
with respect to a default under this Agreement or with respect to any other matter arising out
of or in connection therewith shall not be deemed a waiver with respect to any subsequent
default or matter.
01/S74934.2 12
• Section 25. No Merger. Neither this Agreement, the Lease nor any provisions hereof
or thereof shall be construed to effect a merger of the title of City to the Project site and City's
leasehold interest herein.
Section 26. Benefit. This Agreement shall be binding upon and shall inure to the benefit
of the parties and their successors or assigns.
Section 27. Section Captions. The section captions contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or interpretation of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers as of the day and year first above written.
[SEAL] CITY OF OMAHA NORTHWEST LIBRARY
FACILITIES CORPORATION
ATTEST:
By
President
Secretary
[SEAL] CITY OF OMAHA, NEBRASKA
ATTEST:
By
Mayor
City Clerk
APPROVED AS 0 FORM:
ssis Cit tto y
01/574934.2 1 3
a
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me this day of August, 1997 by
EILEEN M. WIRTH President, and VERDA H. BIALAC, Secretary, of CITY OF OMAHA
NORTHWEST LIBRARY FACILITIES CORPORATION, on behalf of Corporation.
Notary Public
(SEAL)
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me this day of August, 1997 by
HAL DAUB, Mayor of the City of Omaha, Nebraska, and by MARY GALLIGAN CORNETT,
City Clerk, of the CITY OF OMAHA, NEBRASKA, on behalf of City.
Notary Public
(SEAL)
01/574934.2 14
EXHIBIT A
SCHEDULE OF BASIC RENT
PAYABLE BY THE CITY OF OMAHA, NEBRASKA
Date Principal Interest Total
2/15/98 $ $ $
8/15/98 •
2/15/99
8/15/99
2/15/00
8/15/00
2/15/01
8/15/01
2/15/02
8/15/02
2/15/03
8/15/03
2/15/04
8/15/04
2/15/05
8/15/05
2/15/06
8/15/06
2/15/07
8/15/07
2/15/08
8/15/08
2/15/09
8/15/09
2/15/10
01/574934.2
8/15/10
_ 2/15/11
8/15/11
2/15/12
8/15/12
2/15/13
8/15/13
2/15/14
8/15/14
2/15/15
8/15/15
2/15/16
8/15/16
2/15/17
8/15/17
$ $ $
01/574934.2 A-2
r
, r
.
APPENDIX A
LEASEHOLD PROPERTY DESCRIPTION
MILLARD PROJECT
All of lot 258, Montclair West Replat, a subdivision as surveyed, platted and recorded in
Douglas County, Nebraska.
01/574934.2 f
\_ �. ak
11,
APPENDIX B
LEASEHOLD PROPERTY DESCRIPTION
BENSON PROJECT
Lots one, two, three, four, five, and six, along with lot twenty four,
block 8, Benson Addition to the City of Omaha, Douglas County, Nebraska.
•
01/574934.2 ti
"11 ��
APPENDIX C
• LEASEHOLD PROPERTY DESCRIPTION
W. DALE CLARK PROJECT
Block 119, in the Original City of Omaha, as surveyed and
lithographed, Douglas County, Nebraska
01/574934.2 B-2
. 1
Exhibit B
CITY OF OMAHA, NEBRASKA,
as Lessor
to
CITY OF OMAHA NORTHWEST LIBRARY FACILITIES CORPORATION,
as Lessee
SITE LEASE AGREEMENT
Dated as of August 1, 1997
Return Copy to:
ATI Title Company
3154 South 19th Street
Omaha, Nebraska 68102
Attention:
01/574933.2 '
•
•
SITE LEASE AGREEMENT
THIS SITE LEASE AGREEMENT is made and entered into as of the 1st day of August,
1997 by and between the CITY OF OMAHA, NEBRASKA, a municipal corporation ("City"),
'as lessor, and CITY OF OMAHA NORTHWEST LIBRARY FACILITIES CORPORATION,
a Nebraska nonprofit corporation ("Corporation"), as lessee.
RECITALS:
City, in consideration of the covenants of Corporation hereinafter set forth, does by these
presents lease to Corporation three parcels of ground and all buildings and improvements
situated thereupon, located at (i) 13214 Westwood Lane in the City of Omaha, Nebraska, more
specifically described at Appendix A hereto, (ii) 2918 North 60th Street in the City of Omaha,
more specifically described at Appendix B hereto and (iii) 215 South 15th Street in the City of
Omaha, more specifically described at Appendix C hereto.
TO HAVE AND TO HOLD the same unto Corporation from, on and after the date
hereof to and including the earlier of (i) August 15, 2017 and (ii) the termination date of that
Lease-Purchase Agreement dated as of August 1, 1997 by and between Corporation, as lessor,
and City, as lessee, but in no event earlier than the first date on which the Bonds are no longer
Outstanding under the Indenture (as such terms are defined by such Lease-Purchase Agreement),
and City warrants to Corporation the peaceful and quiet enjoyment of the premises hereby leased
for and during the term hereof.
Corporation, in consideration of the leasing of the premises as above set forth, has agreed
with City to pay City as rent for the use of the same the sum of Ten Dollars ($10.00) per year,
which rent has been paid by Corporation for the entire term, the receipt and sufficiency of which
are hereby acknowledged by City.
Corporation further covenants with City that at the expiration of the term of this Lease
Agreement peaceable possession of said premises, together with any buildings or improvements
now or hereafter situated thereupon during the lease term, shall be given to City.
It is further covenanted and agreed between the parties hereto that the leased premises
shall be used only in connection with the provision of public library services for functions
incidental thereto or such other uses as may be approved by the City Council of City.
The covenants herein shall extend to and be binding upon the successors and assigns of
the parties to this Lease Agreement.
01/574933.2 4
•
•
IN WITNESS WHEREOF, the parties hereto have caused this Lease Agreement to be
executed by their duly authorized officers as of the day and year first written above.
[SEAL] CITY OF OMAHA, NEBRASKA
ATTEST:
By
Mayor
By
City Clerk
[SEAL] CITY OF OMAHA NORTHWEST LIBRARY
FACILITIES CORPORATION
ATTEST:
By
By President
Secretary
APPROVED AS TO FORM:
By
Assis t Ci tt rn y •
01/574933.2 2
•
STATE OF NEBRASKA )
) SS.
•
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me this day of August, 1997 by
HAL DAUB, Mayor of the City of Omaha, Nebraska, and by MARY GALLIGAN CORNETT,
City Clerk, of the CITY OF OMAHA, NEBRASKA, on behalf of City.
[SEAL]
Notary Public
My commission expires:
STATE OF NEBRASKA )
) SS.
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me this day of August, 1997, by
EILEEN M. WIRTH, President, and VERDA H. BIALAC, Secretary, of CITY OF OMAHA
NORTHWEST LIBRARY FACILITIES CORPORATION, on behalf of Corporation.
[SEAL]
Notary Public
My commission expires:
01/574933.2 3
4t.,
APPENDIX A
LEASEHOLD PROPERTY DESCRIPTION
MILLARD PROJECT
All of lot 258, Montclair West Replat, A subdivision as surveyed, platted and recorded
in Douglas County, Nebraska.
01/574933.2 `
a�' /
APPENDIX B
LEASEHOLD PROPERTY DESCRIPTION
BENSON PROJECT
Lots one, two, three, four, five, and six, along with lot twenty four, block 8, Benson
Addition to the City of Omaha, Douglas County, Nebraska.
rl
01/574933.2
APPENDIX C
LEASEHOLD PROPERTY DESCRIPTION
W. DALE CLARK PROJECT
Block 119, in the Original City of Omaha, as surveyed and lithographed, Douglas
County, Nebraska.
01/574933.2 • A
c
r ' T. •t�
r/.
• Exhibit C
•
CITY OF OMAHA NORTHWEST LIBRARY FACILITIES CORPORATION
to
FIRST NATIONAL BANK OF OMAHA,
as Trustee
INDENTURE OF TRUST
•
Dated as of August 1, 1997
01/574936.2
1
•
TABLE OF CONTENTS
(This Table of Contents is not part of the Indenture of Trust and is only for convenience
of reference.)
Page
PARTIES 1
RECITALS 1
ARTICLE I
DEFINITIONS 3
ARTICLE II
ISSUANCE AND EXECUTION OF BONDS
Section 2.01. Issuance of Bonds 5
Section 2.02. Terms, Medium and Place of Payment 5
Section 2.03. Execution 6
Section 2.04. Form of Bonds 6
Section 2.05. Certificate of Authentication 6
Section 2.06. Authorization and Delivery 6
Section 2.07. Mutilated, Lost, Stolen or Destroyed Bonds 7
Section 2.08. Registration and Transfer of Bonds 7
Section 2.09. Additional Bonds 8
Section 2.10. Refunding Bonds 8
Section 2.11. Temporary Bonds 9
Section 2.12. Book-Entry-Only Bonds 9
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
Section 3.01. Bonds Redeemable 11
Section 3.02. Optional Redemption 11
Section 3.03. Mandatory Sinking Fund Redemption 11
Section 3.04. Extraordinary Optional Redemption 13
Section 3.05. Selection of Bonds To Be Redeemed 13
Section 3.06. Notice of Redemption 14
Section 3.07. Cancellation of Bonds 14
01/574936.2
1
!, •; T
rr
ARTICLE IV
GENERAL COVENANTS
Section 4.01. Payment of Bonds 14
Section 4.02. Books and Records; Annual Accounting 14
Section 4.03. Trustee Enforcement of Agreement . . 15
Section 4.04. Parity Bonds 15
Section 4.05. Corporate Existence 15
Section 4.06. Arbitrage and Tax Covenants 15
ARTICLE V
BOND FUND
Section 5.01. Bonds Secured by Basic Rent Payments 16
Section 5.02. Creation of Bond Fund 16
Section 5.03. Deposits to Bond Fund 16
Section 5.04. Use of Moneys in Bond Fund 16
Section 5.05. Custody of Bond Fund; Withdrawals 16
Section 5.06. Unclaimed Moneys 17
Section 5.07. Additional Rent . . . 17
ARTICLE VI
ACQUISITION FUND
Section 6.01. Creation of Acquisition Fund . . . . 17
Section 6.02. Use of Moneys in Acquisition Fund 17
Section 6.03. Requisitions 17
ARTICLE VII
INVESTMENTS 18
ARTICLE VIII
DISCHARGE OF LIEN AND DEFEASANCE 18
01/574936.2 ii •
•
• , , r
•
ARTICLE IX
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND BONDHOLDERS
Section 9.01. Events of Default 20
Section 9.02. Acceleration 21
Section 9.03. Other Remedies 21
Section 9.04. Limitation on Bondholders' Right To Institute Proceedings 21
Section 9.05. Possession of Bonds Not Required for Enforcement 21
Section 9.06. Waiver 22
Section 9.07. Application of Moneys 22
Section 9.08. Restoration to Former Position 23
Section 9.09. Bondholders' Right To Direct Proceedings 23
ARTICLE X
THE TRUSTEE
Section 10.01. Acceptance of Trusts 24
Section 10.02. Limitations on Liability 24
Section 10.03. Dealings in Bonds 24
Section 10.04. Compensation 24
ARTICLE XI
AMENDMENT OF INDENTURE
Section 11.01. Supplemental Indentures Not Requiring Consent of Bondholders 25
Section 11.02. Supplemental Indentures Requiring Consent of Bondholders 25
Section 11.03. Consent of Trustee Required 26
ARTICLE XII
AMENDMENT OF LEASE-PURCHASE AGREEMENT
Section 12.01. Amendment of Agreement Not Requiring Consent of Bondholders 26
Section 12.02. Amendment of Agreement Requiring Consent of Bondholders 26
Section 12.03. Consent of Trustee Required . . . 26
01/574936.2 111
t, y:
•
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Execution of Instruments; Proof of Ownership 27
Section 13.02. Counterparts 27
Section 13.03. No Personal Liability of Corporation Officials; Limited
Liability of Corporation to Bondholders 27
Section 13.04. Severability 29
EXHIBIT A—Form of Bond
EXHIBIT B—Form of Requisition
EXHIBIT C—Form of Blanket Issuer Letter of Representations
01/574936.2 lv
INDENTURE OF TRUST
THIS INDENTURE OF TRUST is made and entered into as of the 1st day of August,
1997 by and between CITY OF OMAHA NORTHWEST LIBRARY FACILITIES
CORPORATION, a Nebraska nonprofit corporation ("Corporation"),.and FIRST NATIONAL
BANK OF OMAHA, a national banking association organized under the laws of the
United States of America, with a corporate trust office in the City of Omaha, Nebraska, as
trustee ("Trustee").
RECITALS
WHEREAS, Corporation, as lessor, has entered into a Lease-Purchase Agreement dated
as of August 1, 1997 (the "Agreement") with the City of Omaha, Nebraska ("City"), as lessee,
under which Corporation has leased to City certain real and personal property situated in
Omaha, Nebraska, commonly known as the Millard Branch Library, the realty being described
at Appendix A to the Agreement, which realty, together with the improvements, fixtures,
equipment and such personal property as may be situated thereon, is herein referred to as the
"Millard Project," certain real and personal property situated in Omaha, Nebraska, commonly
known as the Benson Branch Library, the realty being described at Appendix B to the
Agreement(which realty, together with the improvements, fixtures, equipment and such personal
property as may be situated thereon, is herein referred to as the "Benson Project"), and certain
real and personal property situated in Omaha, Nebraska, commonly known as the W. Dale Clark
Library, the realty being described at Appendix C to the Agreement (which realty, together with
the improvements, fixtures, equipment and such personal property as may be situated thereon,
is herein referred to as the "W. Dale Clark Project", and together with the Millard Project and
the Benson Project, is herein referred to as the "Project"); and
WHEREAS, in order to obtain a portion of the funds for the acquisition, construction,
furnishing and equipping of the Project, it is necessary for Corporation to issue its Bonds in the
aggregate principal amount of Eight Million Dollars ($8,000,000) (the "Bonds"); the Bonds are
secured by a pledge of the Basic Rent (as hereinafter defined) to become due under the
Agreement, and Trustee has agreed to act as Trustee under this Indenture of Trust (this
"Indenture") for the benefit of the owners of the Bonds issued as hereinafter provided;
NOW, THEREFORE,*KNOW ALL MEN BY THESE PRESENTS:
WITNESSETH:
Corporation, in consideration of the premises, the acceptance by Trustee of the trusts
hereby created, the purchase and acceptance of the Bonds by the original purchasers thereof,
receipt of the sum of One Dollar ($1.00) lawful money of the United States of America to it
duly paid by Trustee at or before the execution and delivery of these presents, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
Ol/574936.2
in order to secure the payment of the principal of and interest on the Bonds issued as herein
provided according to their tenor and effect, and the performance and observance by Corporation
of all the covenants expressed or implied herein and in the Bonds, does hereby grant, bargain,
sell, convey and pledge unto Trustee, and its successors in trust, and to them and their assigns
forever, for the securing of the performance of the obligations of Corporation hereinafter set
forth, the following:
1. All revenues and income derived by Corporation from the Project,
including, without limitation, all Rental Payments received by Corporation from City
under the Agreement, such payments to be made by City directly to Trustee and
deposited by Trustee in an account of Corporation designated "Bond Fund."
2. Any and all other property of every name and nature from time to time
hereafter by delivery or by writing of any kind conveyed, mortgaged, pledged, assigned
or transferred, as and for additional security hereunder by Corporation or by anyone in
its behalf (or with its written consent) to Trustee, which is hereby authorized to receive
any and all such property at any time and to hold and apply the same, subject to the
terms hereof.
TO HAVE AND TO HOLD all the same with all privileges and appurtenances hereby
conveyed and assigned, or agreed or intended so to be, to Trustee and its respective successors
in trust and to them and their assigns forever:
IN TRUST, NEVERTHELESS, upon the terms and trusts herein set forth for the equal
and proportionate benefit, security and protection of all owners of Bonds issued under and
secured by this Indenture, without privilege, priority or distinction as to the lien or otherwise
of any of the Bonds or interest thereon over any of the other said Bonds or interest thereon.
PROVIDED, HOWEVER, that if Corporation, its successors or assigns shall well and
truly pay, or cause to be paid, the principal of and interest on the Bonds due or to become due
thereon, at the times and in the manner mentioned in the Bonds, according to the true intent and
meaning thereof, and shall make the payments to the Bond Fund as required under Article V
hereof, or shall provide as permitted hereby, for the payment thereof by depositing with Trustee
the entire amount due or to become due thereon, and shall well and truly keep, perform and
observe all the covenants and conditions pursuant to the terms of this Indenture to be kept,
performed and observed by it, and shall pay or cause to be paid to Trustee all sums of money
due or to become due to it in accordance with the terms and provisions hereof, then upon such
final payments this Indenture and the rights hereby granted shall cease, determine and be void,
otherwise this Indenture to be and remain in full force and effect.
THIS TRUST INDENTURE FURTHER WITNESSETH: that all Bonds issued and
secured hereunder or to be issued, authenticated and delivered, and all the revenues, income and
other property hereby pledged, including the Rental Payments due under the Agreement, are to
be dealt with and disposed of under, upon and subject to the terms, conditions, trusts, uses and
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purposes hereinafter expressed, and Corporation has agreed and covenanted and does hereby
agree and covenant with Trustee and with the respective owners, from time to time, of the
Bonds, as follows.
ARTICLE I
DEFINITIONS
In addition to the words and terms elsewhere defined in this Indenture, the following
words and terms as used in this Indenture shall have the following meanings, unless the context
or use indicates another or different meaning or intent.
"Acquisition Fund" means the Fund created by Article VI of this Indenture, into which
the net proceeds of the sale of the Bonds shall be deposited and out of which disbursements are
to be made in the manner and for the purpose specified in Article VI of this Indenture.
"Additional Rent" means the amounts City is required by the Agreement to pay with
respect to the Projects, in addition to the Basic Rent.
"Agreement" means the Lease-Purchase Agreement dated as of August 1, 1997 by and
between Corporation and City, together with any amendments thereto.
"Basic Rent" means the amounts City is required by the Agreement to pay to Corporation
as rent for the Project.
"Benson Project" means the real and personal property described on the first page hereof
and Exhibit B to the Agreement and the Lease and all property now or hereafter constructed or
placed thereon.
"Bond" or "Bonds" means any bond or bonds issued pursuant to, in accordance with, and
secured by this Indenture.
"Bond Fund" means the Fund created by Article V of this Indenture into which the funds
specified in Article V are to be deposited.
"Bondholder(s)" means the owner of any Bond.
"Bonds of Other Series" means bonds issued hereunder other than the Bonds.
"Bond Year" means the period of time beginning on August 15 of a given year and
ending on August 14 of the immediately subsequent year (or the maturity date of the Bonds,
whichever is earlier), except that the initial Bond Year shall commence on the date of original
issuance of the Bonds and end on August 14, 1998.
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"City" means the City of Omaha, Nebraska.
"Code" means the Internal Revenue Code of 1986, as amended, including the
United States Treasury Regulations proposed or in effect with respect thereto and applicable to
the Bonds or the use of the proceeds thereof.
"Corporation" means City of Omaha Northwest Library Facilities Corporation, a
Nebraska nonprofit corporation.
"Indenture" means this Indenture of Trust, together with any supplements hereto.
"Letter of Instructions" means the letter of nationally recognized bond counsel describing
the application of the rebate provisions of the Code.
"Millard Project" means the real and personal property described on the first page hereof
and Exhibit A to the Agreement and the Lease and all property now or hereafter constructed or
placed thereon.
"Outstanding" or "Bonds outstanding hereunder" means all Bonds which have been
authenticated, issued and delivered under this Indenture except:
(a) bonds cancelled because of payment;
(b) bonds for the payment or redemption of which cash funds or United States
Government Obligations as provided in Article VIII shall have been theretofore deposited
with Trustee, whether upon or prior to the maturity or redemption date of any of said
Bonds; and
(c) bonds in lieu of which others have been authenticated as provided under
Article II hereof.
"Person" includes natural persons, firms, associations, corporations and public bodies.
"Project" means, collectively, the Millard Project, the Benson Project and the
W. Dale Clark Project.
"Record Date" means the first day of each month that includes an interest payment date,
namely February 1 and August 1.
"Rental Payments" means, collectively, the Basic Rent and the Additional Rent.
"Series 1997 Bonds" means the $[PRINCIPAL AMOUNT] of Corporation's Lease
Revenue Bonds (Omaha Public Library Projects), Series 1997.
01/574936.2 4 %.
"Trustee" or "Paying Agent" means First National Bank of Omaha, and its corporate
successor or successors in trust under this Indenture.
"United States Government Obligations" means direct general obligations of, or
obligations the payment of the principal and interest of which are unconditionally guaranteed by,
the United States of America, which are not subject to prior redemption except at prices which
will produce the amount of cash required for the purpose for which the obligations are held.
"W. Dale Clark Project" means the real and personal property described on the first page
hereof and Exhibit C to the Agreement and the Lease and all property now or hereafter
constructed or placed thereon.
•
ARTICLE II
ISSUANCE AND EXECUTION OF BONDS
Section 2.01. Issuance of Bonds. The Series 1997 Bonds in the aggregate principal
amount of Eight Million Dollars ($8,000,000) shall be issued by Corporation as soon as
practicable on or following the date of execution of this Indenture, and the proceeds thereof, net
of accrued interest, if any, shall be delivered to Trustee to be deposited by Trustee in the
Acquisition Fund.
The Bonds shall not be a debt of City or a pledge of its faith and credit but, together with
interest thereon, shall be payable solely out of the Rental Payments paid by City to Corporation
under the Agreement.
Section 2.02. Terms, Medium and Place of Payment. The Series 1997 Bonds shall be
issued as fully registered bonds, without coupons, in the denomination of$5,000 or any integral
multiple thereof. The Series 1997 Bonds shall be numbered in consecutive numerical order from
one upwards in chronological order, as issued, or shall be numbered in any other manner as the
Finance Director of City shall determine. The Series 1997 Bonds shall be dated August 15,
1997 and shall become due and payable on August 15 of the years and shall bear interest at the
rates per annum as shown below:
Maturity Date
(August 15) Amount Interest Rate
1998 $ %
1999
2000
2001
2002
2003
2004
2005
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2006
2007
2012
2017 $
The Series 1997 Bonds shall bear interest from August 15, 1997 and shall be payable
semiannually on February 15 and August 15 of each year, starting February 15, 1998.
The principal of the Bonds shall be payable in lawful money of the United States of
America at the principal corporate trust office of Trustee in Omaha, Nebraska, or its successor.
Payment of interest on the Bonds shall be made to the registered owner thereof and shall be paid
(i) by check or draft mailed to the registered owner at his address as it appears on the
registration books of Corporation on the Record Date or at such other address as is furnished
to Trustee in writing by such registered owner or (ii) by wire transfer to the registered owner
of$1,000,000 in aggregate principal amount of the Bonds upon written notice by the registered
owner given to Trustee not later than the close of business on the Record Date.
Section 2.03. Execution. The Bonds shall be executed on behalf of Corporation by the
President and Secretary of Corporation, each of whose signatures may be a facsimile of the
signature, and the seal, or a facsimile thereof, of Corporation shall be placed on each Bond.
In case any officer whose signature shall appear on the Bonds shall cease to be such officer
before the delivery of such Bonds, such signature shall, nevertheless, be valid and sufficient for
all purposes, the same as if such officer had remained in office until delivery.
Section 2.04. Form of Bonds. The Bonds shall be in substantially the form set forth
in Exhibit A hereto with such variations, omissions and insertions as are permitted or required
by this Indenture and are deemed advisable by nationally recognized bond counsel to effectuate
the purposes of this Indenture.
Section 2.05. Certificate of Authentication. Only such Bonds as shall have endorsed
thereon a Certificate of Authentication substantially in the form set forth in Exhibit A hereto,
duly manually executed by Trustee, shall be entitled to any right or benefit under this Indenture.
No Bond shall be valid or obligatory for any purpose unless and until such Certificate of
Authentication shall have been duly executed by Trustee, and such executed Certificate shall be
conclusive evidence that such Bond has been authenticated under this Indenture.
Section 2.06. Authorization and Delivery. Upon the execution and delivery of this
Indenture, Corporation shall execute the Bonds and deliver same to Trustee, who shall
authenticate the Bonds. The Bonds shall then be delivered to the original purchasers of the
Bonds upon the payment of the purchase price not less than 98% of the principal amount
thereof, together with interest to the date of payment and delivery of the Bonds.
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Section 2.07. Mutilated, Lost, Stolen or Destroyed Bonds. In case any Bond issued
hereunder shall become mutilated, destroyed, stolen or lost, Corporation shall, if not then
prohibited by law, cause to be executed, and Trustee may authenticate and deliver, a new Bond
of like date, number, maturity and tenor in exchange and substitution therefor, and upon
cancellation of such mutilated Bond, or in lieu of and in substitution for such lost Bond, upon
the owner paying the reasonable expenses and charges of Corporation and Trustee in connection
therewith, and, in case of a Bond destroyed or lost, the owner filing with Trustee evidence
satisfactory to it that such Bond was destroyed or lost, and furnishing Corporation and Trustee
with indemnity satisfactory to them.
Section 2.08. Registration and Transfer of Bonds. Corporation shall cause books for
the registration and for the transfer of the Bonds as provided in this Indenture to be kept by
Trustee. At reasonable times and under reasonable regulations established by the Corporation,
such list may be inspected and copied by the owners (or a designated representative thereof) of
25% or more in aggregate principal amount of Bonds then Outstanding.
Upon surrender for transfer of any Bond at the principal office of Trustee, Trustee shall
deliver in the name of the transferee or transferees a new fully authenticated and registered Bond
of$5,000 principal amount (or integral multiple thereof) of the same maturity for the aggregate
principal amount which the Bondholder is entitled to receive.
All Bonds presented for transfer, redemption or payment shall be accompanied by a
written instrument or instruments of transfer or authorization for exchange, in form and with
guaranty of signature as set forth in the form of Exhibit A hereto or as may be satisfactory to
Corporation and Trustee, duly executed by the Bondholder or by his duly authorized attorney.
Trustee also may require payment from the Bondholder of a sum sufficient to cover any
tax, or other governmental fee or charge that may be imposed in relation thereto. Such taxes,
fees and charges shall be paid before any such new Bond shall be delivered.
Corporation and Trustee, on behalf of Corporation, shall not be required (a) to issue or
register the transfer of any Bond during a period beginning on the Record Date and ending at
the close of business on the business day next preceding any principal payment date or (b) to
transfer any Bond selected, called or being called for redemption in whole or in part.
Bonds delivered upon any transfer as provided herein, or as provided in Section 2.07
hereof, shall evidence the same debt as the Bond surrendered, shall be secured by this Indenture
and shall be entitled to all of the security and benefits hereof to the same extent as the Bond
surrendered.
Corporation and Trustee shall treat the Bondholder, as shown on the registration books
kept by Trustee, as the person exclusively entitled to payment of principal, premium, if any, and
interest and the exercise of all other rights and powers of the Bondholder, except that all interest '
payments will be made to the Bondholder as of the Record Date.
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•
Section 2.09. Additional Bonds. Additional series of bonds having status and rank equal
to the Bonds may be issued from time to time under the terms of this Indenture, providing for
such interest rates and other characteristics as shall be fixed and determined by Corporation and
as set forth in a supplemental indenture, and provided there must be compliance with each of
the following:
(1) Corporation is not in default under this Indenture;
(2) City is not in default under the Agreement;
(3) Corporation and City shall, prior to the issuance of such Bonds of Other
Series, have entered into an amendment to the Agreement to increase the Basic Rent
payable by City to provide sufficient additional funds at the times and in the amounts
necessary to pay the principal of and interest on both the outstanding Bonds and the
proposed Bonds of Other Series, including any principal due on the Bonds of Other
Series due by mandatory redemption provisions and to provide that City will pay as
Additional Rental the fees and expenses of Trustee with respect to the Bonds of Other
Series;
(4) each issue of Bonds of Other Series shall be designated by some name to
indicate that such Bonds are of a different series than the Bonds; and
(5) the issuance of such Bonds of Other Series shall have been approved by
City.
Section 2.10. Refunding Bonds. Bonds to refund all or any of the Bonds outstanding
hereunder may be issued at any time provided there is compliance with each of the following:
(1) Corporation is not in default under this Indenture, or the default will be
cured immediately after issuance of the refunding bonds;
(2) City is not in default under the Agreement;
(3) Basic Rent payable by City under the Agreement shall be sufficient to pay,
when due, the principal of and interest on all Bonds to be outstanding, including the
refunding bonds;
(4) the issuance of the refunding bonds shall in no manner adversely affect the
exclusion from gross income of the interest on the Bonds for federal income tax
purposes;
(5) the proceeds of the refunding bonds shall be applied in such manner that
the Bonds being refunded are no longer outstanding hereunder after issuance of the • '
refunding bonds; and
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(6) the issuance of such refunding bonds shall have been approved by City.
Any such refunding bonds shall bear interest and be on such other terms and conditions as shall
be determined by Corporation. Refunding bonds issued in compliance with the foregoing
provisions shall have rank and status equal to the Bonds.
Section 2.11. Temporary Bonds. Until Bonds in definitive form are ready for delivery,
Corporation may execute, and upon the request of Corporation, Trustee shall authenticate and
deliver to the purchasers thereof, subject to the provisions, limitations and conditions set forth
above, one or more Bonds in temporary form, whether printed, type-written, lithographed or
otherwise produced, substantially in the form of the definitive Bonds, with appropriate
omissions, variations and insertions, and in authorized denominations. Until exchanged for
Bonds in definitive form, such Bonds in temporary form shall be entitled to the lien and benefit
of this Indenture. Upon the presentation and surrender of any Bond or Bonds in temporary
form, Corporation shall, without unreasonable delay, prepare, execute and deliver to Trustee,
and Trustee shall authenticate and deliver to the owner or owners thereof, in exchange therefor,
a Bond or Bonds in definitive form. Such exchange shall be made by Trustee without making
any charge therefor to the owners of such Bonds in temporary form.
Section 2.12. Book-Entry-Only Bonds. (a) The Series 1997 Bonds shall initially be
issued in book-entry form. The Depository Trust Company,. New York, New York (the
"Depository") is hereby appointed the Depository for the Bonds. The Blanket Issuer
Representations Letter, attached hereto as Exhibit C and incorporated herein by this reference,
dated as of the date of delivery of the Bonds and signed by Corporation and the Depository, is
hereby approved, and the execution by the President of Corporation is hereby authorized. The
ownership of one fully registered Bond for each maturity as set forth in Section 2.02 hereof,
each in the aggregate principal amount of such maturity, shall be registered in the name of
Cede & Co., as nominee for the Depository. Payment of semiannual interest on any Bond
registered as of each Record Date in the name of Cede & Co. shall be made in same-day funds
or its equivalent, by wire transfer to the account of Cede & Co. on the interest payment dates
and the respective maturity dates for the Bonds, at the address indicated on the Record Date for
Cede & Co. in the registration books of Corporation kept by Trustee.
(b) Trustee and Corporation may treat the Depository (or its nominee) as the sole and
exclusive owner of the Bonds registered in its name for the purposes of payment of the principal
of and interest on the Bonds, giving any notice permitted or required to be given to Bondholders
under this Indenture, registering the transfer of Bonds, obtaining any consent or other action to
be taken by Bondholders and for all other purposes whatsoever, and neither Trustee nor
Corporation shall be affected by any notice to the contrary.
(c) Corporation and Trustee shall have no responsibility or obligation to any securities
broker-dealer, bank, trust company, clearing corporation or other organization for which the
Depository holds Bonds as securities depository (each, a "Participant") or to any Participant and '
01/574936.2 9 f
the person for whom it acquires an interest in the Bonds as nominee (each, a "Beneficial
Owner") with respect to the following:
(i) the accuracy of the records of the Depository, any nominees of the
Depository or any Participant with respect to any ownership interest in the Bonds;
(ii) the delivery to any Participant, any Beneficial Owner or any other person,
other than the Depository, of any notice with respect to the Bonds, including any notice
of redemption; or
(iii) the payment to any Participant, any Beneficial Owner or any other person,
other than the Depository, of any amount with respect to the Bonds. Trustee shall make
payments with respect to the Bonds only to or upon the order of the Depository or its
nominee, and all such payments shall be valid and effective fully to satisfy and discharge
the obligations with respect to such Bonds to the extent of the sum or sums so paid. No
person other than the Depository shall receive an authenticated Bond.
(d) Notwithstanding any other provision of this Indenture to the contrary, so long as
any Bond is registered in the name of the Depository or any nominee thereof, all payments with
respect to such Bond and all notices with respect to such Bond shall be made and given,
respectively, to the Depository as provided in the Blanket Issuer Representations Letter.
(e) Upon receipt by Trustee of written notice from the Depository to the effect that
the Depository is unable or unwilling to discharge its responsibilities or upon receipt by Trustee
of written notice from Corporation to the effect that Corporation has determined that the
Depository is incapable of discharging its responsibilities, Trustee shall issue, transfer and.
exchange Bonds requested by the Depository in appropriate amounts. Whenever the Depository
requests Trustee to do so, Trustee will cooperate with the Depository in taking appropriate action
after reasonable notice (i) to arrange, with the prior written consent of Corporation, for a
substitute depository willing and able upon reasonable and customary terms to maintain custody
of the Bonds or (ii) to make available Bonds registered in whatever name or names the
Beneficial Owners transferring or exchanging such Bonds shall designate.
(f) If Corporation determines that it is desirable that certificates representing the
Bonds be delivered to the Participants and/or Beneficial Owners of the Bonds and so notifies
Trustee in writing, Trustee shall so notify the Depository, whereupon the Depository will notify
the Participants of the availability through the Depository of bond certificates representing the
Bonds. In such event, Trustee shall issue, transfer and exchange bond certificates representing
the Bonds as requested by the Depository in appropriate amounts and in authorized
denominations.
(g) Registered ownership of the Bonds may be transferred on the books of registration
maintained by Trustee, and the Bonds may be delivered in physical form to the following:
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(1) any successor securities depository or its nominee;
(2) any person, upon (A) the resignation of the Depository from its functions
as depository or (B) termination of the use of the Depository pursuant to this Section.
(h) In the event of any partial redemption of a Bond unless and until such partially
redeemed Bond has been replaced in accordance with the provisions of Section 2.08 of this
Indenture, the books and records of Trustee shall govern and establish the principal amount of
such Bond as is then outstanding, and all of the Bonds issued to the Depository or its nominee
shall contain a legend to such effect.
(i) If for any reason the Depository resigns and is not replaced, Corporation shall
immediately provide a supply of printed bond certificates for issuance upon the transfers from
the Depository and subsequent transfers or in the event of a partial redemption pursuant to
Section 2.08 of this Indenture.
(j) In the event that the Bonds are no longer held in book-entry form, payment of
interest on the Bonds shall be made to the registered owners thereof as provided by Section 2.02
hereof.
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
Section 3.01. Bonds Redeemable. The Series 1997 Bonds are noncallable for
redemption except pursuant to Sections 3.02, 3.03, 3.04, 3.05 and 3.06 hereof.
Section 3.02. Optional Redemption. The Series 1997 Bonds maturing on August 15,
2012 and 2017 are subject to redemption by Corporation from any source, in whole at any time,
or in part on any interest payment date, in such order of maturities as determined by Corporation
(and by lot or other random selection method within a maturity) on or after August 15, 2007,
at the following redemption prices expressed as a percentage of the principal amount of the •
Series 1997 Bonds to be redeemed, plus interest accrued thereon to the date of redemption:
Redemption Period
(dates inclusive) Redemption Price
August 15, 2007 to August 14, 2008 102%
August 15, 2008 to August 14, 2009 101
August 15, 2009 and thereafter 100
Section 3.03. Mandatory Sinking Fund Redemption. The Series 1997 Bonds maturing
on August 15, 2012 shall be subject to mandatory redemption at a redemption price equal to the '
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1)
•
principal amount thereof, without premium, in the following principal amounts on the following
mandatory redemption dates:
August 15 Principal Amount
•
2008
2009
2010
2011
The remaining $ principal amount of Series 1997 Bonds maturing on August 15, 2012
shall be paid at maturity on August 15, 2012.
The Series 1997 Bonds maturing on August 15, 2017 shall be subject to mandatory
redemption at a redemption price equal to the principal amount thereof, without premium, in the
following principal amounts on the following mandatory redemption dates:
August 15 Principal Amount
2013
2014
2015
2016
The remaining$ principal amount of Series 1997 Bonds maturing on August 15, 2017
shall be paid at maturity on August 15, 2017.
To the extent that such Series 1997 Bonds have been previously called for redemption
in part and otherwise than as provided in this Section 3.03, each related aforesaid annual
redemption amount for the Series 1997 Bonds of such maturity shall be reduced by the amount
obtained by multiplying the principal amount of such Series 1997 Bonds of such maturity so
called for redemption by the ratio which each annual redemption amount for the Series 1997
Bonds of such maturity bears to the total sinking fund payments of such Series 1997 Bonds
subject to redemption as provided in this Section 3.03 and by rounding each such redemption
amount to the nearest $5,000 multiple.
On or before the thirtieth day prior to August 15 of each year listed in this Section 3.03
as a mandatory redemption date, Trustee shall proceed to select for redemption (by lot or other
random selection method in such manner as Trustee may determine), from all outstanding
01/574936.2 12 ,
y i
Series 1997 Bonds subject to such mandatory redemption, a principal amount of such
Series 1997 Bonds, equal to the aggregate principal amount of such Series 1997 Bonds
redeemable, and shall call such Series 1997 Bonds or portions thereof ($5,000 or any integral
multiple thereof) for redemption on each such August 15 and give notice of such call as provided
in Section 3.06.
Section 3.04. Extraordinary Optional Redemption. The Series 1997 Bonds are subject
to redemption at any time in whole, or in part, in the event of damage to or destruction of all
or a portion of the Millard Project, the Benson Project or the W. Dale Clark Project or
condemnation thereof and election by City that the proceeds of such damage, destruction or
condemnation award shall not be used to rebuild or restore the Millard Project, the Benson
Project or the W. Dale Clark Project, as applicable. Any such redemption shall be at a
redemption price equal to the principal amount of the Series 1997 Bonds being redeemed,
without premium, plus accrued interest thereon to the date of redemption. The principal amount
of the Series 1997 Bonds redeemed as a result of the damage, destruction or condemnation of
the Millard Project, the Benson Project or the W. Dale Clark Project, respectively, pursuant to
this Section 3.04 shall not exceed the amount of the Series 1997 Bonds then Outstanding
multiplied by the ratio of disbursements from the Acquisition Fund for the Millard Project, the
Benson Project or the W. Dale Clark Project, respectively, to the amount of proceeds of the
Series 1997 Bonds deposited in the Acquisition Fund, with such amount to be redeemed rounded
up to the nearest $5,000. No Series 1997 Bonds shall be redeemed under this provision,.nor
shall any notice of redemption be given by Trustee, until there has been furnished to Trustee
sufficient funds, United States Government Obligations or other provision satisfactory to Trustee
fully to retire all Bonds to be redeemed in accordance with this Section.
Section 3.05. Selection of Bonds To Be Redeemed. (a) The maturities of Bonds of a
series to be redeemed in part shall be selected by Corporation in the principal amount of$5,000
or any integral multiple thereof and the Bonds of a particular maturity to be redeemed shall be
selected by Trustee from the Outstanding Bonds of that maturity by lot (or such other random
selection method as Trustee shall deem equitable), which may provide for the selection for
redemption of portions of the principal of Outstanding Bonds of that maturity of a denomination
larger that $5,000. The portions of the principal of Outstanding Bonds so selected for partial
redemption shall be equal to $5,000 or integral multiples thereof. Any Bond which is to be
redeemed only in part shall be delivered to Trustee who shall authenticate and deliver to the
Bondholder, without service charge, a new Bond or Bonds, of any authorized denomination as
requested by such Bondholder in an aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Bonds so surrendered. If the Bondholder of any such
Bond of a denomination greater that $5,000 shall fail to present such Bond to Trustee for
payment and exchange as aforesaid, such Bond shall, nevertheless, become due and payable on
the redemption date to the extent of the principal amount of such Bond called for redemption
(and to that extent only).
(b) Trustee shall call Bonds for redemption as herein provided upon receipt by
Trustee at least 45 days prior to the redemption date of a written request of Corporation. Such
01/574936.2 13 ;
r '
request shall specify the principal amounts and maturities of Bonds so to be called for
redemption, the applicable redemption price or prices and the provision or provisions of this
Indenture pursuant to which such Bonds are to be called for redemption. Trustee may, in its
sole discretion, waive or reduce the time period of such written notice to Trustee. The
foregoing provisions of this subparagraph (b) shall not apply in the case of any mandatory
redemption of Bonds pursuant to Section 3.03, and Bonds shall be called by Trustee for
redemption pursuant to such mandatory redemption requirements without the necessity of any
action by Corporation and whether or not Trustee shall hold in the Bond Fund moneys available
for and sufficient to effect the required redemption.
Section 3.06. Notice of Redemption. In the event any of the Bonds are called for
redemption as aforesaid, notice thereof identifying such Bonds will be given for Bonds held in
book-entry-only form by mailing to the Depository not less than 30 days nor more than 60 days
prior to the redemption date and for Bonds held in certificated form by mailing by first-class
mail to the registered owner thereof not less than 30 days prior to the date fixed for redemption.
All Bonds so called for redemption will cease to bear interest after the specified redemption date,
provided funds for their redemption are on deposit at the place of payment at that time. Any
funds paid for redemption of Bonds shall be applied first against any interest due and owing on
the Bonds and then against the unpaid principal balance thereof.
Section 3.07. Cancellation of Bonds. All Bonds which have been redeemed shall be
cancelled by Trustee and destroyed by Trustee in accordance with its regular procedures.
ARTICLE IV
GENERAL COVENANTS
Section 4.01. Payment of Bonds. Corporation covenants that it will promptly pay the
principal of and interest on every Bond issued under this Indenture at the place, on the dates and
in the manner provided herein and in the Bonds according to the true intent and meaning hereof.
Such principal and interest are payable solely from revenues in the Bond Fund derived from the
Basic Rent payable under the Agreement or other funds deposited hereunder in the Bond Fund.
Corporation further covenants faithfully to perform at all times any and all covenants,
undertakings, stipulations and provisions contained in this Indenture, and Corporation will do,
execute, acknowledge and deliver, or cause to be done, executed, acknowledged and delivered,
such indentures supplemental hereto and such further acts, instruments and transfers as Trustee
may reasonably require for the better assuring, transferring, mortgaging, pledging, assigning and
confirming unto Trustee the property herein described and the revenues, income and all other
property pledged hereby to the payment of the principal of and interest on the Bonds.
Section 4.02. Books and Records; Annual Accounting. Trustee agrees that, so long
as any Bonds issued hereunder and secured by this Indenture shall be outstanding and unpaid,
it will keep proper books of record and account in which full, true and correct entries will be '
made of all dealings or transactions of and in relation to the Project and the revenues, income
01/574936.2 14
and all other property derived therefrom. Trustee agrees to furnish to City and Corporation an
accounting annually, and at such other times as either may reasonably request, pertaining to the
dealings and transactions of Trustee in relation to the Project. All books.and records of Trustee
relating to the Project and the revenues therefrom shall at all times be open to inspection by
representatives of City and Corporation and the owners of the Bonds.
Section 4.03. Trustee Enforcement of Agreement. The Agreement sets forth the
covenants and obligations of Corporation and City and reference is hereby made to the
Agreement for a detailed statement of the respective obligations. Corporation agrees that
Trustee, in its own name or in the name of Corporation, may enforce all rights and obligations
Corporation may have under and pursuant to the Agreement for and on behalf of the
Bondholders, whether or not Corporation is in default in its covenants to enforce such rights and
obligations.
Section 4.04. Parity Bonds. Corporation covenants that, so long as any of the Bonds
are outstanding, it will not issue other bonds payable from the Basic Rent due under the
Agreement except as permitted in Article II of this Indenture, and in any event not without the
specific consent to such issuance given by City.
Section 4.05. Corporate Existence. Corporation covenants to maintain its corporate
existence as a nonprofit corporation under the laws of the State of Nebraska.
Section 4.06. Arbitrage and Tax Covenants. Corporation and Trustee jointly and
severally covenant and certify to each other and for the benefit of the holders of the Bonds that
no use will be made of the proceeds from the issuance and sale of the Bonds nor will use be
made of moneys in the various funds and accounts established under this Indenture which would
cause the Bonds to be classified as arbitrage bonds within the meaning of Section 148 of the
Internal Revenue Code of 1986, as amended (the "Code"), and the Income Tax Regulations
promulgated thereunder (the "Regulations"). Pursuant to such covenant, Corporation and
Trustee obligate themselves to comply throughout the term of the Bonds with the requirements
of said Section 148 of the Code.
Corporation and Trustee acknowledge that, under Section 148 of the Code, investment
of the proceeds of the Bonds, including investment proceeds, is subject to and must comply with
the provisions of Section 148 of the Code with respect to the acquisition of obligations the yield
on which will be materially higher than the yield on the Bonds during the term of the Bonds.
Corporation and Trustee further acknowledge that investments may be made in materially higher
yield obligations during a temporary period if certain requirements set forth in the regulations
applicable to Section 148 are met. Corporation and Trustee further acknowledge that, under
certain circumstances, earnings on certain funds may be subject to rebate to the United States
in accordance with Section 148 of the Code, and Corporation and Trustee hereby agree to
comply with Section 148 of the Code and all applicable regulations thereunder. Except as
permitted by the rules set forth in such regulations, as they may be revised'from time to time,
with respect to investments made during a temporary period, the proceeds of the Bonds shall not
01/574936.2 15
be invested in materially higher yielding investments. All terms used in this Article IV which
are defined in Section 148 of the Code shall have the same meanings in this Article IV as in the
Code.
Trustee shall establish a trust fund (the "Rebate Fund") pursuant to this Indenture for the
purpose of accepting deposits of rebate amounts which may occur by operation of Section 148
of the Code. Corporation shall provide not later than 60 days after the fifth Bond Year and
every five years thereafter for payment to the United States of 90% of the amounts required to
be paid pursuant to Section 148(f) of the Code and the Regulations. Not later than 60 days after
the final retirement of the Bonds, Corporation shall pay 100% of the amount required to be paid
pursuant to Section 148(f) of the Code and the Regulations. Each payment shall be filed with
the Internal Revenue Service Center, Philadelphia, Pennsylvania 19255. Each payment shall be
accompanied by a copy of the Form 8038-T and a statement summarizing the determination of
the amounts paid and to be paid to the United States.
ARTICLE V
BOND FUND
Section 5.01. Bonds Secured by Basic Rent Payments. The Project has been leased to
City under the Agreement and the Basic Rent payments have been and are hereby assigned and
shall be remitted directly to Trustee for the account of Corporation and deposited in the Bond
Fund, and the entire amount of the Basic Rent payments is pledged to the payment of the
principal of and interest on the Bonds and other Bonds issued as permitted by Article II.
Section 5.02. Creation of Bond Fund. There is hereby created by Corporation and
ordered established with Trustee a trust fund to be designated "Bond Fund" which shall be used
to pay the interest on and principal of the Bonds.
Section 5.03. Deposits to Bond Fund. There shall be deposited in the Bond Fund all
accrued interest received, if any, at the time of the issuance, sale and delivery of the Bonds, all
Basic Rent payments, as and when received, made under the Agreement and all other moneys
received by Trustee under and pursuant to any of the provisions of the Agreement directing such
moneys to be paid into the Bond Fund.
Section 5.04. Use of Moneys in Bond Fund. Moneys in the Bond Fund shall be used
solely for the payment of the interest on the Bonds and for the retirement of the Bonds at or
prior to maturity.
Section 5.05. Custody of Bond Fund; Withdrawals. The Bond Fund shall be in the
c
custody of Trustee, and Corporation hereby authorizes and directs Trustee to withdraw funds
from the Bond Fund in amounts sufficient to meet installments of interest on or principal of the
Bonds when due. -
01/574936.2 16
i <
Section 5.06. Unclaimed Moneys. In the event any Bonds shall not be presented for
payment when the principal thereof becomes due, if funds sufficient to pay such Bonds shall
have been made available to Trustee for the benefit of the owners thereof, all liability of
Corporation to the Bondholders for the payment of such Bonds and the interest thereon shall
forthwith cease, determine and be completely discharged and thereupon it shall be the duty of
Trustee to hold such fund or funds, without liability for interest thereon, for a period of
six years after all Bonds shall have matured, for the benefit of the owners of such Bonds, who
shall thereafter be restricted exclusively to such funds for any claim of whatever nature on their
part under this Indenture or with respect to such Bonds. At the expiration of such period, any
unclaimed principal or interest shall be paid to City and thereafter all claimants shall be
restricted exclusively to making claim against City for such principal or interest. City shall have
no liability for interest on any such funds paid to it and shall not be required to hold such funds
in trust nor to, in any manner, segregate such funds on its books.
Section 5.07. Additional Rent. It is understood and agreed that, pursuant to the
provisions of the Agreement, City agrees to pay costs and expenses as Additional Rent (as that
term is defined in the Agreement), including the fees and expenses of Trustee.
ARTICLE VI
ACQUISITION FUND
Section 6.01. Creation of Acquisition Fund. A special fund is hereby created with.
Trustee to be designated "Acquisition Fund." Upon the issuance and sale of the Bonds, the
proceeds thereof, excluding accrued interest, if any, shall be deposited into the Acquisition
Fund.
Section 6.02. Use of Moneys in Acquisition Fund. Moneys in the Acquisition Fund
shall be disbursed for the following purposes:
(1) the payment of expenses of issuing and selling the Bonds, including
printing, legal and financial expenses; and
(2) the amount remaining after payment or provision for payment of the
expenses mentioned in (1) above shall be applied to the payment of the costs of the
Project, including the reimbursement of City for any such costs incurred after June 6,
1997.
Section 6.03. Requisitions. Trustee shall disburse funds in payment of expenses
permissible under Section 6.02(1) and Section 6.02(2)upon receipt of requisitions signed by the
President or Secretary of Corporation or such other person or persons, including officials or
employees of City, as designated in writing by the President and Secretary of the Corporation.
•
01/574936.2 17
Requisitions submitted to Trustee shall be in the form attached hereto as Exhibit B.
Trustee shall maintain complete and accurate records relating to each such disbursement for
Project's costs.
ARTICLE VII
INVESTMENTS
Moneys for the credit of any fund or account under this Indenture shall be invested and
reinvested by Trustee upon the written direction of Corporation, but only in investments
authorized by Reissue Revised Statutes of Nebraska, 1943, Section 14-563, viz. securities of the
United States, the State of Nebraska, the City, Douglas County, Nebraska, a school district of
the City, municipality owned and operated public utility property and parts of the City, and
certificates of deposit from and make time deposits in bank or capital stock fmancial institutions
selected as depositories of City funds; provided that moneys deposited from Basic Rent payments
to the credit of the Bond Fund shall only be invested or reinvested by Trustee in direct
obligations of, or obligations the principal of and interest on which are unconditionally
guaranteed by, the United States of America. Any such investment shall mature at such time
and in such amounts so that funds will be available when required. Obligations so purchased
as an investment of moneys shall be held by or under the control of Trustee and shall be deemed
at all times part of the fund or account from which invested, and the interest accruing thereon
and any profit realized from such investments shall be credited to such fund or account and any
loss resulting from such investments shall be charged to such fund or account.
ARTICLE VIII
DISCHARGE OF LIEN AND DEFEASANCE
If Corporation shall pay or cause to be paid to the owners of the Bonds the principal and
interest to become due thereon at the time and in the manner stipulated therein, and if
Corporation shall keep, perform and observe all and singular the covenants and promises in the
Bonds and in this Indenture expressed as to be kept, performed and observed by it or on its part,
then these presents and the estate and rights hereby granted shall cease, determine and be void,
and thereupon Trustee shall cancel and discharge the lien of this Indenture and execute and.
deliver to Corporation such instruments in writing as shall be requisite to satisfy the lien hereof
and assign and deliver to Corporation any property at the time subject to the lien of this
Indenture which may then be in its possession, except cash held by Trustee for the payment of
interest on and retirement of the Bonds, or as otherwise provided for herein.
It is specifically understood and agreed that the release of the lien of this Indenture shall
not affect nor cancel the provisions of this Indenture relating to Bonds issued or the rights of
owners of the Bonds, Trustee or Corporation, which provisions shall continue in full force and
effect according to their terms.
01/574936.2 18
Corporation may at any time surrender to Trustee for cancellation by it any Bonds
previously authenticated and delivered hereunder which Corporation may have acquired in any
manner whatsoever, and such Bonds, upon surrender and cancellation, shall be deemed to be
paid and retired.
For the purposes of this Indenture, any Bond issued hereunder shall be deemed to be
fully discharged and satisfied and no longer outstanding when:
(1) a Bond is cancelled whether by reason of payment or redemption prior to
maturity;
(2) a Bond is surrendered to Trustee for cancellation;
(3) a Bond for which the payment of the principal of and all interest accrued
and to accrue through the due date of payment (regardless of whether such due date
arises by reason of maturity, upon redemption or by declaration as provided herein) has
been made; such payment will be deemed to have been made when there has been
deposited with Trustee sufficient moneys to make such payment or United States
Government Obligations maturing, as to principal and interest, in such amount and at
such times as will insure the availability of sufficient moneys to make any such payment
and all necessary and proper fees, compensation and expenses of Trustee pertaining to
such Bond with respect to which such deposit is made have either been paid or payment
provided for to the satisfaction of Trustee; provided, however, no deposit of cash or
United States Government Obligations shall constitute discharge and satisfaction as to any
Bond to be redeemed prior to their maturity unless:
(a) such Bond has been irrevocably called or designated for redemption
on the first date thereafter on which such Bond may be redeemed in accordance
with the provisions of Article III of this Indenture; and
(b) proper notice of the redemption of such Bond has been mailed as
required by Article III hereof, or irrevocable provision, satisfactory to Trustee,
shall have been made for the mailing of such notice.
(4) a Bond is mutilated, destroyed or lost and, subsequently, a new Bond is
issued as provided under Section 2.07 of this Indenture.
At such time as a Bond shall no longer be deemed to be outstanding hereunder, as
provided in this Section, such Bond shall no longer be secured by or entitled to the benefits of
this Indenture except for the purpose of payment from the cash or United States Government
Obligations deposited with and held by Trustee for such purpose.
Moneys deposited with Trustee under this Section and the proceeds of any United States '
Government Obligations held under this Section may be invested and reinvested in United States
01/574936.2 19
•
Government Obligations which mature in the amounts and at the times required to comply with
the provisions of this Section. Any income from such investments in excess of the requirements
for principal of and interest on any Bond not being outstanding under the provisions of this
Section shall be paid into the Bond Fund to be disbursed or held as provided thereby. •
If cash or United States Government Obligations shall have been deposited with Trustee
in accordance with this Section, in trust for the purpose and sufficient and available to pay the
principal of any Bond, together with all interest due thereon to the due date thereof or to the date
fixed for the redemption thereof, all liability of Corporation for such payments shall terminate
and be discharged, whether or not such Bond shall be presented for payment on the due date,
whether at maturity or upon redemption or by declaration, and Trustee shall hold such moneys
or United States Government Obligations without liability to the owner of such Bond for interest
thereon, in trust for the benefit of the owner of such Bond, who thereafter shall be restricted
exclusively to such moneys or United States Government Obligations for any claim for such
payment of whatsoever nature on his part, except as is provided in Section 5.06 hereof.
ARTICLE IX
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND BONDHOLDERS
Section 9.01. Events of Default. If any of the following events occur, it is hereby
defined as and declared to be and to constitute an "Event of Default":
(1) default in the due and punctual payment of the principal of or the interest
on any Bond hereby secured and outstanding and the continuance thereof for a period of
five days;
(2) default in the due and punctual payment of moneys required to be paid to
Trustee under the provisions of Article V hereof and the continuance thereof for a period
of five days; or
(3) default in the performance or observance of any other of the covenants,
agreements or conditions on Corporation's part contained in this Indenture, or in the
Bonds, and the continuance thereof for a period of 30 days after written notice thereof
to Corporation by Trustee, or by the owners of not less than 20% in aggregate principal
amount of Bonds outstanding hereunder.
The term "default," as used in Section 9.01 hereof, shall mean default by Corporation
in the performance or observance of any of the covenants, agreements or conditions on its part
contained in this Indenture, or in the Bonds, exclusive of any period of grace required to
constitute a default as an "Event of Default," as hereinabove provided, after giving the
respective notice for the respective periods above stated.
01/574936.2 20 r
Section 9.02. Acceleration. Upon the occurrence of an Event of Default, Trustee may,
and, upon the written request of the owners of 20% in aggregate principal amount of Bonds
outstanding hereunder, shall, by notice in writing delivered to Corporation, declare the principal
of all Bonds hereby secured then outstanding, and the interest accrued thereon, immediately due
and payable. This provision is subject, however, to the condition that, if at any time after such
declaration of principal and interest to be immediately due, and before any further action has
been taken other than such declaration, the principal amount of all Bonds which have matured
and all arrears of interest, together with the reasonable charges and expenses of Trustee, shall
be paid or caused to be paid, then the owners of a majority of principal amount of the Bonds
then outstanding, by notice in writing delivered to Trustee, may require Trustee to waive such
default and its consequences and rescind such declaration. Until it is required to make the
declaration hereinabove in this Section provided, Trustee shall have power to waive any default
arising hereunder if, in the opinion of Trustee, the same shall have been cured or adequate
satisfaction made therefor or if Trustee deems the declaration not to be in the best interest of the
Bondholders. No such waiver shall extend to or affect any subsequent default.
Section 9.03. Other Remedies. Upon the occurrence and a continuation of an Event of
Default, Trustee may on its own initiative, and shall upon the written request of the owners of
not less than 20% in principal amount of the Bonds then outstanding hereunder, and upon being
indemnified to its reasonable satisfaction against any and all costs, expenses, outlays, counsel
fees and other reasonable disbursements and against all liability, exercise any remedies available
under the Agreement and, to the extent consistent therewith, may sell, lease or manage any
portion of the Project and apply the net proceeds thereof in accordance with Section 9.07 of this
Article, and whether or not it has done so, proceed to take any other steps needful for the
protection and enforcement of its rights and the rights of the owners of the Bonds as shall be
provided by law, including a suit, action or special proceeding in equity or at law.
Section 9.04. Limitation on Bondholders' Right To Institute Proceedings. No owner
of any of the Bonds shall have any right to institute any suit, action or proceeding in equity or
at law hereunder or for any other remedy hereunder unless such owner previously shall have
given to Trustee written notice of an Event of Default as herein provided and unless the owners
of not less than 20% in principal amount of the Bonds then outstanding shall have made written
request of Trustee, after the right to exercise such powers or rights of action, as the case may
be, shall have accrued, either to proceed to exercise the powers herein granted or to institute
such action, suit or proceeding in the name of Trustee and Trustee shall have refused or
neglected to comply with such request within a reasonable time and after being afforded a
reasonable opportunity to do so and after having been offered security and indemnity satisfactory
to it against the costs, expenses and liabilities to be incurred therein or thereby as aforesaid. All
actions to enforce any provision of this Indenture shall be instituted and maintained for the equal
benefit of all owners of the Bonds, except that nothing herein contained shall impair the right
of any owner of any Bond at or after the maturity thereof to reduce the same to judgment.
Section 9.05. Possession of Bonds Not Required for Enforcement. All rights of action
under this Indenture or under any of the Bonds secured hereby enforceable by Trustee may be
01/574936.2 21
•
•
enforced without the possession of any of the Bonds or the production thereof at the trial or
other proceedings relative thereto, and any such suit or proceeding instituted by Trustee shall
be brought for the ratable benefit of the owners of the Bonds, subject to the provisions of this
Indenture.
Section 9.06. Waiver. In the event the Bondholders or Trustee waive any default or
breach of duty, such waiver shall not impair any right or power exercisable hereunder by the
Bondholders or Trustee nor shall such waiver be construed to be or be a waiver of any
subsequent default or breach.
Section 9.07. Application of Moneys. Anything in this Indenture to the contrary
notwithstanding, if at any time the moneys in the Bond Fund shall not be sufficient to pay the
interest on or the principal of the Bonds as the same shall become due and payable (either by
their terms or by acceleration of maturities under the provisions of Section 9.02 of this Article),
such moneys, together with any moneys then available or thereafter becoming available for such
purpose, whether through the exercise of the remedies provided for in this Article or otherwise,
shall be applied as follows:
(1) unless the principal of all the Bonds shall have become or shall have been
declared due and payable, all such moneys shall be applied as follows:
(a) FIRST: to the payment to the persons entitled thereto of all
installments of interest then due and payable in the order in which such
installments became due and payable and, if the amount available shall not be
sufficient to pay in full any particular installment, then to the payment, ratably,
according to the amounts due on such installment, to the persons entitled thereto,
without any discrimination or preference;
(b) SECOND: to the payment to the persons entitled thereto of the
unpaid principal of any of the Bonds which shall have become due and payable
(other than Bonds called for redemption for the payment of which moneys are
held pursuant to the provisions of this Indenture), in the order of their stated
payment dates, with interest on the principal amount of such Bonds from the
respective dates upon which such Bonds became due and payable, and, if the
amount available shall not be sufficient to pay in full the principal of the Bonds
by their stated terms due and payable on any particular date, together with such
interest, ratably, according to the amount of such interest due on such date, and
then to the payment of such principal, ratably, according to the amount of such
principal due on such date, to the persons entitled thereto without any
discrimination or preference; and
(c) THIRD: to the payment of the interest on and the principal of the
Bonds, to the purchase and retirement of Bonds and to the redemption of Bonds,
all in accordance with the provisions of Articles II and III of this Indenture;
01/574936.2 22
�..ems;
(2) if the principal of all the Bonds shall have become or shall have been
declared due and payable, all such moneys shall be applied to the payment of the
principal and interest then due and unpaid upon the Bonds, without preference or priority
of principal over interest or of interest over principal, or of any installment of interest
over any other installment of interest, or of any Bond over any other Bond, ratably,
according to the amounts due respectively for principal and interest, to the persons
entitled thereto without any discrimination or preference; and
(3) if the principal of all the Bonds shall have been declared due and payable
and if such declaration shall thereafter have been rescinded and annulled under the
provisions of Section 9.02 of this Article, then, subject to the provisions of paragraph (2)
of this Section, in the event that the principal of all of the Bonds shall later become or
be declared due and payable, the moneys remaining in and thereafter accruing to the
Bond Fund shall be applied in accordance with the provisions of paragraph (1) of this
Section.
Whenever moneys are to be applied by Trustee pursuant to the provisions of this Section,
such moneys shall be applied by Trustee at such times, and from time to time, as Trustee in its
sole discretion shall determine, having due regard to the amount of such moneys available for
application and the likelihood of additional moneys becoming available for such application in
the future, and the deposit of such moneys, or otherwise setting aside such moneys, in trust for
the proper purpose shall constitute proper application by Trustee; and Trustee shall incur no
liability whatsoever to any Bondholder or to any other person for any delay in applying any such.
moneys, so long as Trustee acts with reasonable diligence, having due regard to the
circumstances, and ultimately applies the same in accordance with such provisions of this
Indenture as may be applicable at the time of application by Trustee. Whenever Trustee shall
exercise such discretion in applying such moneys, it shall fix the date (which shall be an interest
payment date unless Trustee shall deem another date more suitable) upon which such application
is to be made and upon such date interest on the amounts of principal to be paid on such date
shall cease to accrue. Trustee shall give such notice as it may deem appropriate of the fixing
of any such date, and shall not be required to make payment to the owner of any Bond until such
Bond shall be surrendered to Trustee for appropriate endorsement, or for cancellation if fully
paid.
Section 9.08. Restoration to Former Position. In case any proceedings taken by Trustee
on account of any default shall have been discontinued or abandoned for any reason, then and
in every such case Corporation, Trustee and the Bondholders shall be restored to their former
positions and rights hereunder, respectively, and all rights, remedies, powers and duties of
Trustee shall continue as though no proceeding had been taken.
Section 9.09. Bondholders' Right To Direct Proceedings. Anything in this Indenture
to the contrary notwithstanding, the owners of a majority in principal amount of the Bonds then
outstanding hereunder shall have the right, by an instrument or concurrent instruments in writing •
executed and delivered to Trustee, to direct the method and place of conducting all remedial
01/574936.2 23
proceedings to be taken by Trustee hereunder, provided that such direction shall not be otherwise
than in accordance with law and the provisions of this Indenture.
ARTICLE X
THE TRUSTEE
Section 10.01. Acceptance of Trusts. Trustee hereby accepts the trusts imposed upon
it by this Indenture and agrees to perform said trusts as an ordinarily prudent trustee under a
corporate mortgage. Trustee may resign at any time by giving not less than 60 days' notice to
Corporation and to City and, within five days after giving such notice, by mailing to each
Bondholder of record by first-class mail a copy of such notice. Trustee may be removed at any
time upon the written request or upon the affirmative vote of the owners of 51% in principal
amount of Bonds outstanding. In the event of such resignation or removal, a successor may be
appointed by the owners of 51% in principal amount of the Bonds outstanding, and such
successor shall have all the powers and obligations of Trustee theretofore vested in its
predecessor, provided that, unless and until the successor trustee shall have been appointed by
the owners of the Bonds as aforesaid, Corporation shall forthwith appoint a trustee to fill such
vacancy. Any successor trustee shall be a bank or trust company in either of the cities of
Lincoln or Omaha, Nebraska, and having a capital and surplus of not less than $10,000,000.
Section 10.02. Limitations on Liability. The duties and obligations of Trustee shall be
determined solely by the express provisions of this Indenture, and Trustee shall not be liable
except for the performance of such duties and obligations as are specifically set forth in this
Indenture. Trustee shall be protected when acting in good faith upon the advice of its counsel,
who may be bond counsel to Corporation. Trustee may conclusively rely upon any certificate
of Corporation executed by any two of the directors of Corporation and upon any requisition
certificate satisfying the requirements of Section 6.03 hereof. Trustee may require of
Corporation full information and advice as to the performance of all covenants, conditions and
agreements of Corporation contained in this Indenture or any supplement hereto, but Trustee
shall not be required to ascertain or inquire as to the correctness of any information, statements,
conclusions or opinions expressed in any certificate, resolution, report, opinion or other
document furnished to it pursuant to any provision of this Indenture.
Section 10.03. Dealings in Bonds. Trustee in its individual capacity may become the
owner or pledgee of the Bonds with the same rights it would have if it were not Trustee
hereunder.
Section 10.04. Compensation. Trustee shall be entitled to reasonable compensation for
all services rendered by it in the execution, exercise or performance of any of the powers and
duties to be exercised or performed by it pursuant to the provisions of this Indenture and for the
reasonable expenses, charges and other disbursements incurred in connection with the exercise
and performance of said powers and duties, all of which under the Agreement are to be paid to
Trustee by City.
01/574936.2 24 sus
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•
ARTICLE XI
AMENDMENT OF INDENTURE
Section 11.01. Supplemental Indentures Not Requiring Consent of Bondholders.
Corporation may without the consent of the Bondholders, but with the consent of Trustee, from
time to time and at any time, amend or supplement this Indenture in such manner as not to be
inconsistent with the terms and provisions hereof, so as to thereby (a) cure any ambiguity or
formal defect or omission in this Indenture, including any subsequent amendments thereto;
(b) grant to and confer upon Trustee for the benefit of the Bondholders any additional rights,
remedies, powers, authority or security that may be lawfully granted to or conferred upon the
Bondholders or Trustee, or surrender any right, power or privilege reserved to or conferred
upon Corporation by this Indenture or any amendment thereto; (c) issue other Bonds in
accordance with the provisions of Article II hereof; (d) comply with such requirements of the
Code as are necessary in the opinion of nationally recognized bond counsel to make the interest
on the Bonds excludable from gross income of the Bondholders for federal income tax purposes;
or (e) to modify, alter, amend or supplement this Indenture in any other respect which in the
judgment of Corporation, as concurred in by Trustee, is not materially adverse to the
Bondholders.
Section 11.02. Supplemental Indentures Requiring Consent of Bondholders. With the
consent of the owners of not less than two-thirds of the Bonds then outstanding, Corporation,
from time to time and at any time, may amend this Indenture in any manner; provided, however,
that, without the specific consent of the owner of each Bond which would be affected thereby,
no such amendment shall permit or be construed as permitting (a) an extension of the maturity
of the principal of or the interest on any Bond issued hereunder, or (b) a reduction in the
principal amount of any Bond or a reduction in the rate of interest thereon, or (c) creation of
any different privilege or priority of any Bond or Bonds over any other Bond or Bonds, or (d) a
reduction in the aggregate principal amount of the Bonds required for consent to such
amendment to this Indenture, or (e) any release or lessening of the pledge and assignment of the
Basic Rent payable by City under the Agreement.
If the owners of not less than two-thirds in aggregate principal amount of the Bonds then
outstanding shall have consented to the amendment proposed, no owner of any Bond shall have
any right to object to any of the terms and provisions contained therein, or the operation thereof,
or in any manner to question the propriety of the execution thereof, or to enjoin or restrain
Trustee or Corporation from taking any action pursuant to the provisions thereof.
After the owners of the required percentage of Bonds shall have filed their consents to
the amending of this Indenture, Corporation shall mail to each Bondholder a copy of the
amendment together with a notice of such amending.
•
01/574936.2 25
If Trustee and Corporation shall so determine, new Bonds conforming to the amendment
shall be executed and delivered in exchange for Bonds then outstanding upon surrender of the
outstanding Bonds without charge to the owners thereof.
Upon delivery to Trustee of a copy of the amendment to this Indenture certified by the
Secretary of Corporation, together with an opinion of counsel to Corporation that such
amendment is in proper form and was duly adopted in accordance with the provisions hereof and
applicable law, this Indenture as it then exists and the Bonds shall be modified and amended in
accordance with such amendment, and thereafter the respective rights and duties under this
Indenture of Corporation and the Bondholders shall be determined under this Indenture as so
amended.
Section 11.03. Consent of Trustee Required. No amendment amending, changing or
modifying any of the rights or obligations of Trustee hereunder may be adopted without the
written consent of Trustee.
ARTICLE XII
AMENDMENT OF LEASE-PURCHASE AGREEMENT
Section 12.01. Amendment of Agreement Not Requiring Consent of Bondholders.
Corporation or Trustee, or each of them, may from time to time, without the approval of the
Bondholders, consent to any amendment, change or modification of the Agreement between
Corporation and City for the purpose of curing any ambiguity, formal defect or omission or
making any other change therein which, in the judgment of Trustee, is not to the prejudice of
Trustee or materially adverse to the Bondholders.
Section 12.02. Amendment of Agreement Requiring Consent of Bondholders. Except
for amendments, changes or modifications as provided in Section 12.01 hereof, no amendment,
change or modification of the Agreement shall be made without the written consent of the
owners of two-thirds in principal amount of all the Bonds outstanding, except for the purpose
of increasing the Basic Rent payable thereunder and making such other provisions as shall be
required to permit the issuance of Bonds of Other Series as authorized under this Indenture;
provided, however, that in no event shall the Agreement be amended to reduce the Basic Rent
payable by City or extend the date when such Basic Rent shall be due, without the consent of
the owners of all Bonds outstanding. The proportionate reduction of the amount of Basic Rent
due by City under the Agreement by reason of City's having prepaid a portion of the Bonds shall
not constitute an amendment of the Agreement.
Section 12.03. Consent of Trustee Required. No amendment, change or modification
to the Agreement shall be made without the written consent of Trustee.
01/574936.2 26
a
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Execution of Instruments; Proof of Ownership. Any request, direction,
consent or other instrument in writing required by this Indenture, or any supplement hereto, to
be signed or executed by owners of Bonds may be in any number of concurrent instruments of
similar tenor and may be signed or executed by such owners in person or by an agent duly
appointed by an instrument in writing. Proof of the execution of any such instrument and of the
ownership of such Bonds shall be sufficient for any purpose of this Indenture, and shall be
conclusive in favor of Trustee and Corporation with regard to any action taken by them under
such instrument, if made in the following manner:
(1) the fact and date of the execution by any person of any such instrument
may be proved by the certificate of any officer in any jurisdiction who, by the laws
thereof, has power to take acknowledgments of deeds to be recorded within such
jurisdiction, to the effect that the person signing such instrument acknowledged to him
the execution thereof, or by an affidavit of a witness to such execution;
(2) the fact of the holding of a Bond by any holder and the amount and
numbers or other descriptive details of such Bonds and the date of his holding the same
may be proved by the affidavit of the person claiming to be such holder, if such affidavit
shall be deemed by Trustee to be satisfactory or by a certificate issued by any trust
company, bank or other depository, wherever situated, if such certificate shall be deemed
by Trustee to be satisfactory, showing that at the date therein mentioned such person had
on deposit with such trust company, bank or other depository the Bond described in such
certificate. Trustee may, nevertheless, in its discretion require further proof in cases
where it shall deem further proof desirable. For all purposes of this Indenture and of the
proceedings for the enforcement thereof, such persons shall be deemed to continue to be
the holder of such Bond until Trustee shall have received notice in writing to the
contrary.
Section 13.02. Counterparts. This Indenture may be simultaneously executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the
same instrument.
Section 13.03. No Personal Liability of Corporation Officials; Limited Liability of
Corporation to Bondholders. No covenant or agreement contained in the Bonds or in this
Indenture shall be deemed to be the covenant or agreement of any present or future official,
officer, agent or employee of Corporation, and neither the members of Corporation nor any
official executing the Bonds shall be liable personally on the Bonds or be subject to any personal
liability or accountability by reason of the issuance thereof.
01/574936.2 27
Except for the payment when due of the payments and the observance and performance
of the other agreements, conditions, covenants and terms required to be performed by it
contained in this Indenture, Corporation shall not have any obligation or liability to the
Bondholders with respect to this Indenture or the preparation, execution, delivery, transfer,
exchange or cancellation of the Bonds or the receipt, deposit or disbursement of the payments
by Trustee or with respect to the performance by Trustee of any obligation required to be
performed by it contained in this Indenture.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
•
01/574936.2 28
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x
• Section 13.04. Severability. If any provisions of this Indenture shall be held or deemed
to be or shall, in fact, be inoperative or unenforceable as applied in any particular case, for any
reason, such circumstances shall not have the effect of rendering the provision in question
inoperative or unenforceable in any other case or circumstance or of rendering any other
provision or provisions herein contained invalid, inoperative or unenforceable to any extent
whatever. The invalidity of any one or more phrases, sentences, clauses or paragraphs in this
Indenture contained shall not affect the remaining portions of this Indenture or any part thereof.
IN WITNESS WHEREOF, City of Omaha Northwest Library Facilities Corporation has
caused this Indenture to be executed in its behalf by its President and Secretary and its corporate
seal hereunto affixed, and to evidence its acceptance of the trusts hereby created First National
Bank of Omaha has caused this Indenture to be executed in its name and behalf by duly
authorized officers and its official seal to be hereunto affixed, all as of the 1st day of August,
1997.
[SEAL] CITY OF OMAHA NORTHWEST
LIBRARY FACILITIES CORPORATION
ATTEST:
By
By President
Secretary
[SEAL] FIRST NATIONAL BANK OF OMAHA,
Trustee
ATTEST:
By
By Authorized Officer
Authorized Officer
•
01/574936.2 29
L
STATE OF NEBRASKA )
) SS.
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me this day of August, 1997 by
EILEEN M. WIRTH and VERDA H. BIALAC of CITY OF OMAHA NORTHWEST
LIBRARY FACILITIES CORPORATION, a Nebraska nonprofit corporation, on behalf of the
corporation.
WITNESS my hand and seal this day of , 1997.
Notary Public
STATE OF NEBRASKA )
) SS.
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me this day of August, 1997 by
and of FIRST NATIONAL BANK OF
OMAHA, a national banking association, on behalf of the bank.
WITNESS my hand and seal this day of August, 1997.
Notary Public
•
•
01/574936.2 30
{
A
EXHIBIT A
(FORM OF BOND)
Unless this certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to City of Omaha Northwest•Library
Facilities Corporation or its agent for registration and transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name as is requested
by an authorized representative of DTC (and any payment is made to Cede & Co. or to such
other entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
UNITED STATES OF AMERICA
CITY OF OMAHA NORTHWEST LIBRARY FACILITIES CORPORATION
LEASE REVENUE BOND
(OMAHA PUBLIC LIBRARY PROJECTS)
SERIES 1997
No. R- $
MATURITY INTEREST DATED
DATE RATE DATE CUSIP
August 15, % August 15, 1997
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT: DOLLARS
AND NO CENTS ($ )
KNOW ALL MEN BY THESE PRESENTS that City of Omaha Northwest Library
Facilities Corporation ("Corporation"), a nonprofit corporation organized under the laws of the
State of Nebraska, for value received, promises to pay, but only out of the Bond Fund created
under Article V of the Indenture of Trust dated as of August 1, 1997 (the "Indenture") by and
between Corporation and First National Bank of Omaha, as trustee ("Trustee"), to the order of
the Registered Owner identified above, or registered assigns, on the Maturity Date specified
above, upon surrender hereof, the Principal Amount specified above, and in like manner to pay
01/514936.2
.. 1. t
• interest on said sum from the Dated Date specified above at the Interest Rate per annum
specified above (based on a year of 360 days and twelve 30-day months) per annum
semiannually on February 15 and August 15 of each year, commencing on February 15, 1998,
until said principal sum is paid, except as the provisions hereinafter set forth with respect to
redemption of this Bond prior to maturity may become applicable hereto. Both principal of and
interest on this Bond are payable in lawful money of the United States of America. Payment
of principal shall be made at the principal corporate trust office of Trustee in Lincoln, Nebraska
or its successor. Payment of interest on any Bond interest payment date shall be made to the
Registered Owner hereof as of the Record Date (defined in the Indenture) and shall be paid
(i) by check or draft mailed on the Bond interest payment date to the Registered Owner as of
the close of business on the Record Date at its address as it appears on the registration books
of Corporation kept by Trustee on the Record Date or at such other address as is furnished to
Trustee in writing by such Registered Owner not later than the close of business on the Record
Date or (ii) by wire transfer to the Registered Owner of $1,000,000 in aggregate principal
given to Trustee not later than
amount of the Bonds upon written notice bythe Registered Owner
P g
the close of business on the Record Date.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS BOND
SET FORTH ON THE REVERSE SIDE HEREOF AND SUCH FURTHER PROVISIONS
SHALL, FOR ALL PURPOSES, HAVE THE SAME EFFECT AS IF SET FORTH AT THIS
PLACE.
The Bonds are not a debt of the City of Omaha, Nebraska or a pledge of its faith and
credit but, together with interest thereon, are payable solely from the Rental Payments.
This Bond shall not be valid for any purpose until the Certificate of Authentication hereon
shall have been signed by Trustee.
IN WITNESS WHEREOF, Corporation has caused this Bond to be executed in its name
by the manual or facsimile signature of its President, to be impressed with its corporate seal and
to be attested by the manual or facsimile signature of its Secretary, all as of this 15th day of
August, 1997.
(SEAL) CITY OF OMAHA NORTHWEST LIBRARY
FACILITIES CORPORATION
ATTEST:
By
President
By
Secretary
01/574936.2 A-2 ,„
FORM OF REVERSE OF BOND
This Bond is one of an authorized issue of bonds limited to and in the total amount of
Million Hundred Thousand Dollars ($ ) (the "Bonds"), dated
as even date and like tenor except as to maturity date and interest rate, issued for the purpose
of providing funds for the acquisition, construction, improving, furnishing and equipping of
improvements and additions to the Millard Branch Library, the Benson Branch Library and the
W. Dale Clark Library (the "Project"), which are leased to the City of Omaha, Nebraska
("City"). The Project has been leased to City under the Lease-Purchase Agreement dated as of
August 1, 1997 (the "Agreement") by and between Corporation and City. The principal of and
interest on the Bonds are to be paid out of Rental Payments (as that term is defined in the
Agreement) payable by City pursuant to the Agreement, which Rental Payments have been
assigned to Trustee under the Indenture, under which this Bond is issued; the provisions of the
Indenture, govern the rights of the owners of the Bonds. The Rental Payments are in an amount
sufficient to pay the principal of and interest on the Bonds as the same become due.
The Bonds maturing on August 15, 2012 and 2017 are subject to redemption by
Corporation from any source, in whole at any time or in part, on any interest payment date, in
such order of maturities as determined by Corporation (and by lot or other random selection
method within a maturity) on or after August 15, 2007 at the redemption prices expressed as a
percentage of principal amount of the Bonds to be redeemed set forth below, plus accrued
interest to the date of redemption:
Redemption Period (dates inclusive) Redemption Price
August 15, 2007 to August 14, 2008 102%
August 15, 2008 to August 14, 2009 101
August 15, 2009 and thereafter 100
The Bonds maturing on August 15, 2012 and 2017 are subject to mandatory sinking fund
redemption on the dates provided in the Indenture at a redemption price equal to the principal
amount thereof, plus accrued interest to the redemption date, without a premium.
The Bonds, of whatever maturity, shall also be subject to redemption at any time, in
whole or in part, in the event of damage to or destruction of all or a part of the Millard Project,
the Benson Project or the W. Dale Clark Project (each as defined in the Agreement),
respectively, or the condemnation thereof and the election by City that any proceeds resulting
from such damage, destruction or condemnation award shall not be used to rebuild or restore
the Millard Project, the Benson Project or the W. Dale Clark Project, as applicable; any such
redemption shall be in a principal amount determined pursuant to the Indenture at a redemption
price equal to the principal amount of the Bonds being redeemed, without premium, plus accrued
interest thereon to the date of redemption.
If a Bond in book-entry-only form is to be called for redemption, notice will be mailed
to the Depository (defined in the Indenture) not less than 30 days nor more than 60 days prior
• 1
01/574936.2 A-3 •
.
s +
t��
y. r
to the redemption date. If a Bond not in book-entry-only form is to be called for redemption,
notice will be given by mailing a copy of the redemption notice by first class mail not less than
30 days prior to the date fixed for redemption to the registered owner of each Bond to be
redeemed at the address shown on the registration books of Corporation kept by Trustee. All
maturities of the Bonds so called for redemption will cease to bear interest after the specified
redemption date, provided funds for their redemption are on deposit at the place of payment at
that time.
This Bond is transferable by the registered owner hereof by execution of an assignment
in the form appearing on this Bond, and upon delivery of this Bond and completed assignment
to Trustee, but subject to the, limitations imposed by law and upon payment of all charges
incurred by Corporation and Trustee.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This Bond is one of the bonds designated herein and issued under the provisions of the
within-mentioned Indenture.
Date: FIRST NATIONAL BANK OF OMAHA,
Trustee
By
• Authorized Officer
•
01/574936.2 A-4
•
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, , the undersigned,hereby sells,
assigns and transfers unto (Tax Identification or Social Security No. )
the within-mentioned Bond and all rights thereunder, and hereby irrevocably constitutes and
appoints
pp s , attorney, to transfer the within Bond on the
books kept for registration thereof, with full power of substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: The signature to this assignment
must correspond with the name as it appears
upon the face of the within Bond in every
NOTICE: Signature(s) must be guaranteed particular, without alteration or enlargement
by a financial institution that is a member of or any change whatsoever.
the Securities Transfer Agent Medallion
Program ("STAMP"), the Stock Exchange
Medallion Program ("SEMP"), the
New York Stock Exchange, Inc. Medallion
Signature Program ("MSP") or such other
"signature guarantee program" as may be
determined by the Registrar in addition to,
or in substitution for, STAMP, SEMP or
MSP, all in accordance with the Securities
Exchange Act of 1934, as amended.
01/574936.2 A-5
. .
EXHIBIT B
FORM OF REQUISITION
• ,
01/574936.2
•
Requisition No.
REQUISITION FROM ACQUISITION FUND FOR
CITY OF OMAHA NORTHWEST LIBRARY FACILITIES CORPORATION
LEASE REVENUE BONDS
(OMAHA PUBLIC LIBRARY PROJECTS)
SERIES 1997
TO: First National Bank of Omaha, as Trustee
Corporate Trust Department
16th and Dodge Streets
Omaha, NE 68102 •
FROM: City of Omaha Northwest Library Facilities Corporation
Pursuant to Section 6.03 of the Indenture of Trust(the "Indenture") dated as of August 1,
1997 by and between City of Omaha Northwest Library Facilities Corporation ("Corporation")
and you, you are hereby directed to disburse from the Acquisition Fund referred to in the
Indenture (the "Acquisition Fund") the amount indicated below.
1. The name and address of the person, firm or corporation to whom payment is
due:
2. Amount to be disbursed: $
Previous disbursements •
Cumulative disbursements after this requisition $
3. The disbursement herein requested is for expenses properly incurred, pursuant to
Section 6.02 of the Indenture, and is a proper charge against the Acquisition Fund for payment
of [SELECT ONE: expenses pursuant to Section 6.02(1) of the Indenture; costs of the Millard
Project; costs of the Benson Project; costs of the W. Dale Clark Project] and has not been the
basis of any previous disbursement.
4. A bill or bills or other evidence of each such obligation of Corporation is hereby
attached.
01/574936.2
i I
Dated this day of , 19 .
CITY OF OMAHA NORTHWEST LIBRARY
FACILITIES CORPORATION
By
Name
Title
01/574936.2 B-2 `7
EXHIBIT C
FORM OF BLANKET ISSUER
LETTER OF REPRESENTATIONS
[SEE ITEM .]
01/574936.2
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t.
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•
Exhibit D
LETTER AGREEMENT
August 21, 1997
First National Bank of Omaha, as Trustee
16th and Dodge Streets
Omaha, NE 68102
$8,000,000
City of Omaha Northwest Library Facilities Corporation
• Lease Revenue Bonds
(Omaha Public Library Projects)
Series 1997
Ladies and Gentlemen:
(a) This Letter Agreement is executed and delivered by the City of Omaha, Nebraska
(the "City") and First National Bank of Omaha, as Trustee (the "Trustee") under that certain
Indenture of Trust dated as of August 1, 1997 (the "Indenture"), for the benefit of the holders
of $8,000,000 City of Omaha Northwest Library Facilities Corporation Lease Revenue Bonds
(Omaha Public Library Projects), Series 1997 (the "Bonds") and to facilitate compliance with
Section (b)(5)(i) of Securities and Exchange Commission Rule 15c2-12 under the Securities
Exchange Act of 1934, as amended (17 C.F.R. § 240.15c2-12) (the "Rule"). This Letter
Agreement is being executed and delivered to assist Kirkpatrick, Pettis, Smith, Polian Inc.
(the "Underwriter"), as Participating Underwriter under the Rule, to comply with the Rule.
Capitalized terms used in this Letter Agreement and not otherwise defined in the Indenture shall
have the meanings assigned such terms in paragraph (b) hereof.
(b) The following are the definitions of the capitalized terms used herein and not
otherwise defined in the Indenture:
"Annual Financial Information" means the financial information or operating data
with respect to the City, provided at least annually, of the type included in Appendix A
to the final Official Statement dated August [ ], 1997 relating to the Bonds. The
financial statements included in the Annual Financial Information shall be prepared in
accordance with generally accepted accounting principles ("GAAP") for governmental
01/574932.2
units as prescribed by the Government Accounting Standards Board ("GASB"). Such
financial statements may, but are not required to, be Audited Financial Statements.
"Audited Financial Statements" means the City's annual financial statements,
prepared in accordance with GAAP for governmental units as prescribed by GASB,
which financial statements shall have been audited by the independent certified public
accounting firm or firms selected by the City Council Audit Committee.
"Material Event" means any of the following events, if material, with respect to
the Bonds:
(i) Principal and interest payment delinquencies;
(ii) Non-payment related defaults;
(iii) Unscheduled draws on debt service reserves reflecting financial
difficulties;
(iv) Unscheduled draws on credit enhancements reflecting financial
difficulties;
(v) Substitution of credit or liquidity providers, or their failure to
perform;
(vi) Adverse tax opinions or events affecting the tax-exempt status of
the Bonds;
(vii) Modifications to rights of Bondholders;
(viii) Bond calls (other than mandatory sinking fund redemptions);
(ix) Defeasances;
(x) Release, substitution or sale of property securing repayment of the
Bonds; and
(xi) Rating changes.
"Material Event Notice" means written or electronic notice of a Material Event.
"NRMSIR" means a nationally recognized municipal securities information
repository, as recognized from time to time by the Securities and Exchange Commission
by no-action letter for the purposes referred to in the Rule. The NRMSIRs as of the date
of this Letter Agreement are set forth in Exhibit A hereto.
01/574932.2 2 �'_
} "SID" means a state information depository as operated or designated by the State
of Nebraska and recognized by the Securities and Exchange Commission by no-action
letter as such for the purposes referred to in the Rule. There is not a SID as of the date
of this Letter Agreement.
(c) The City undertakes to provide the following information as provided in this
Letter Agreement:
(1) Annual Financial Information;
(2) Audited Financial Statements, if any; and
(3) Material Event Notices.
(d)(1) The City shall while any Bonds are Outstanding provide the Annual Financial
Information on or before the date which is 270 days after the end of each fiscal year of the City
(the "Submission Date") to the Trustee, who shall provide such Annual Financial Information
to each then existing NRMSIR and the SID, if any, on or before the date which is five days after
the Submission Date (the "Report Date") while any Bonds are Outstanding or, if not received
by the Trustee by the second Business Day prior to the Report Date, then within five Business
Days of its receipt by the Trustee. The City shall include with each submission of Annual
Financial Information to the Trustee a written representation addressed to the Trustee to the
effect that the Annual Financial Information is the Annual Financial Information required hereby
and that it complies with the applicable requirements hereof. If the City changes its fiscal year,
it shall provide written notice of the change of fiscal year to the Trustee and to each then
existing NRMSIR or the Municipal Securities Rulemaking Board ("MSRB") and the SID, if any.
It shall be sufficient if the City provides to the Trustee and the Trustee provides to each then
existing NRMSIR and the SID, if any, any or all of the Annual Financial Information by specific
reference to documents previously provided to each NRMSIR and the SID, if any, or filed with
the Securities and Exchange Commission and, if such a document is a final official statement
within the meaning of the Rule, available from the MSRB.
(2) If not provided as part of the Annual Financial Information, the City shall provide
the Audited Financial Statements to the Trustee when and if available while any Bonds are
Outstanding and the Trustee shall then promptly provide each then existing NRMSIR and the
SID, if any, with such Audited Financial Statements.
(3)(i) If a Material Event occurs while any Bonds are Outstanding, the City shall
provide written or electronic notice of a Material Event in a timely manner to the Trustee. The
Trustee shall promptly prepare a Material Event Notice, which shall be so captioned and shall
prominently state the date, title and CUSIP numbers of the Bonds, and shall promptly provide
the Material Event Notice to each then existing NRMSIR or the MSRB and the SID, if any.
•
01/574932.2 3
• Y
(ii) The Trustee shall promptly advise the City whenever, in the course of performing
its duties as Trustee hereunder or under the Indenture, the Trustee identifies an occurrence
which, if material, would require the City to provide a Material Event Notice pursuant to
subparagraph (d)(3)(i), provided that the failure of the Trustee to so advise the City shall not
cause a breach by the Trustee of any of its duties and responsibilities hereunder.
(4) The Trustee shall, without further direction or instruction from the City, provide
in a timely manner to each then existing NRMSIR or the MSRB and to the SID, if any, notice
of any failure by the City while any Bonds are Outstanding to provide to the Trustee Annual
Financial Information on or before the Report Date (whether caused by failure of the City to
provide such information to the Trustee by the Submission Date or for any other reason). For
the purposes of determining whether information received from the City is Annual Financial
Information, the Trustee shall be entitled conclusively to rely on the City's written representation
made pursuant to paragraph (d)(1) hereof.
(5) If the City provides to the Trustee information relating to the City or the Bonds,
which information is not designated as a Material Event Notice, and directs the Trustee to
provide such information to information repositories, the Trustee shall provide such information
in a timely manner to the MSRB and the SID, if any.
(6) The Trustee shall determine each year prior to the Report Date the name and
address of each NRMSIR and the SID, if any.
(e) The continuing obligation hereunder of the City to provide Annual Financial
Information, Audited Financial Statements, if any, and Material Event Notices shall terminate
immediately once the Bonds no longer are Outstanding. This Letter Agreement, or any
provision hereof, shall be null and void in the event that the City delivers to the Trustee an
opinion of nationally recognized bond counsel to the effect that those portions of the Rule which
require this Letter Agreement, or any such provision, are invalid, have been repealed
retroactively or otherwise do not apply to the Bonds, provided that the Trustee shall have
provided notice of such delivery and the cancellation of this Letter Agreement or any provision
hereof to each then existing NRMSIR or the MSRB and the SID, if any.
(f) This Letter Agreement may be amended by the City and the Trustee, without the
consent of the Bondholders, but only upon the delivery by the City to the Trustee of the
proposed amendment and an opinion of nationally recognized bond counsel to the effect that such
amendment, and giving effect thereto, will not adversely affect the compliance of this Letter
Agreement and by the City with the Rule and that such amendment complies with this
paragraph (0, provided that the Trustee shall have provided notice of such delivery and of the
amendment to each then existing NRMSIR or the MSRB and the SID, if any. Any such
amendment shall satisfy the following conditions:
01/574932.2 4 �h
(1) The amendment may only be made in connection with a change in
circumstances that arises from a change in legal requirements, change in law or change
in the identity, nature or status of the City, or type of business conducted;
(2) This Letter Agreement, as amended, would have complied with the
requirements of the Rule at the time of the primary offering, after taking into account
any amendments or interpretations of the Rule, as well as any change in circumstances;
and
(3) The amendment does not materially impair the interest of holders of the
Bonds, as determined by nationally recognized bond counsel, or by approving vote of
holders of the Bonds pursuant to the terms of the Indenture at the time of the
amendment.
The initial Annual Financial Information after the amendment shall explain, in narrative form,
the reasons for the amendment and the effect of the change in the type of operating data or
financial information being provided.
(g) Any failure by the parties hereto to perform in accordance with this Letter
Agreement shall not constitute an "Event of Default" under the Indenture or the Lease Purchase
Agreement, and the rights and remedies provided by the Indenture upon the occurrence of an
"Event of Default" shall not apply to any such failure. The Trustee shall not have the power
or duty to enforce this Letter Agreement. If the City fails to comply herewith, any Bondholder
may take such actions as may be necessary and appropriate, including seeking specific
performance by court order, to cause the City to comply with its obligations hereunder.
(h) This Letter Agreement shall be governed by and construed in accordance with the
laws of the State of Nebraska, provided that to the extent this Letter Agreement addresses
matters of federal securities laws, including the Rule, this Letter Agreement shall be construed
in accordance with such federal securities laws and official interpretations thereof.
(i) Article X of the Indenture is hereby made applicable to this Letter Agreement as
if this Letter Agreement were (solely for this purpose) contained in the Indenture. The Trustee
shall have only such duties as are specifically set forth in this Letter Agreement, and the City
agrees, subject to the availability of appropriations of funds to it therefor and other moneys
legally available for the purpose, to indemnify and hold harmless the Trustee from and against
any and all claims, damages, losses, liabilities, costs or expenses whatsoever which the Trustee
may incur (or which may be claimed against the Trustee by any person or entity whatsoever)
arising out of or in the exercise or performance of its powers and duties hereunder, but
excluding liabilities due to the Trustee's gross negligence or willful misconduct.
(j) This Letter Agreement shall inure solely to the benefit of the City, the Trustee,
the Underwriter, the City of Omaha Northwest Library Facilities Corporation and the holders
from time to time of the Bonds and shall create no rights in any other person or entity.
01/574932.2 5 •
6 6-)
(k) This Letter Agreement may be simultaneously executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and the same
instrument.
Very truly yours,
[SEAL] CITY OF OMAHA, NEBRASKA
ATTEST:
By
Mayor
City Clerk
APPROVED AS TO FORM:
AssStantZ/ rney
Acknowledged and Accepted as of
the date first above written:
FIRST NATIONAL BANK OF OMAHA,
as Trustee
By
Authorized Signatory
01/574932.2 6
•
EXHIBIT A
EXHIBIT A TO LETTER AGREEMENT
Nationally Recognized Municipal Securities Information Repositories
approved by the Securities and Exchange Commission
1. Bloomberg Municipal Repository 5. Municipal Security Disclosure Archive
Municipal Department 559 Main Street
Post Office Box 840 Hudson,MA 01749
Princeton,NJ 08542-0840 Internet address:http://www.municipal.com
Internet address:MUNIS@bloomberg.com Telephone: 800/580-3670
Telephone: 609/279-3200 FAX: 508/562-1969
FAX: 609/279-5962 and 609/279-5963
6. Thomson NRMSIR
Expedited Delivery Address: Secondary Market Disclosure
100 Business Park Drive 3 Floor, 395 Hudson Street
Skillman,NJ 08558 New York,NY 10014
Internet address:Disclosure@muller.com
2. Disclosure, Inc. Contact: Ms. Caroline Chin
Commercial Indexing Telephone: 212/807-3767
5161 River Road FAX: 212/378-0952
Bethesda,MD 20816
Contact: Ms. Sherri Sewalt 7. DPC Data Inc.
Telephone: 301/718-2390 One Executive Drive
FAX: 301/951-1429 Fort Lee,NJ 07024
Internet address: nrmsir@dpcdata.com
3. JJ Kenny Information Services Telephone: 201/346-0701
The Repository FAX: 201/947-0107
16 Floor, 65 Broadway
New York, NY 10006
Contact: Ms. Joan Horai, Repository
Telephone: 212/770-4568
FAX: 212/797-7994
4. Moody's NRMSIR
Public Finance Information Center
99 Church Street
New York, NY 10007-2796
Main Telephone: 800/339-6306
Contact: Ms. Claudette Stephenson
Telephone: 212/553-0345
FAX: 212/553-1460
01/574932.2 •
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