ORD 41023 - Interlocal Lease-Purchase Hilton Hotel - Omaha Public Facilities Corporation I01-
'"H"'"Fsp ; Finance Department
u
s Omaha/Douglas Civic Ccntcr
Syr C 1819 Iarnam Street,Suite 1004
x , , Omaha,Nebraska 68183-1004
o� . V• •
t ° (402)444 541?
p � l'cicfax(402)546-1150
R4rED FF13It
Stephen Curtiss
City of Omaha finance Director
Jean Stothert,Mayor ,
Allen Herink
City Comptroller
Honorable President
and Members of the City Council
ORDINANCE AUTHORIZING LEASE PURCHASE AGREEMENT
BETWEEN CITY OF OMAHA AND
OMAHA PUBLIC FACILITIES CORPORATION
We present this Ordinance for your consideration authorizing and approving a Lease Purchase
Agreement between the City of Omaha Public Facilities Corporation and the City of Omaha,
Nebraska, a copy of which Agreement is attached as Exhibit "A", to provide funds for the lease-
purchase of certain real property rights in an upscale convention hotel facility constructed
adjacent to the City's Convention Center. Also included is a Site Lease Agreement between the
Corporation and the City for the leasing of the reversion right in and to the Project of the City to
the Corporation, attached as Exhibit "B" and an Indenture of Trust between the Corporation
and First National Bank of Omaha, as Trustee and Paying Agent, attached as Exhibit "C".
Respectfully submitted, Referred to City Council for Consideration:
(-Lt.'
Ste en Curtiss D e Mayor's Office/Title Date
Finance Director
4M€ . eci'f-16 A) i9
of i3/ r
ORDINANCE NO.IIO00
An Ordinance authorizing and approving a Lease Purchase Agreement (the
"Agreement") between the City of Omaha Public Facilities Corporation (the "Corporation")
and the City of Omaha, Nebraska (the "City"), a copy of which Agreement is attached hereto as
Exhibit A and incorporated herein by this reference, to provide funds for the lease-purchase of
certain real property rights in a upscale convention hotel facility (the "Project") constructed
adjacent to the City's convention center; authorizing and approving a Site Lease Agreement (the
"Site Lease") between the Corporation and the City for the leasing of the reversion right in and
to the Project of the City to the Corporation, a copy of which Site Lease is attached hereto as
Exhibit B and incorporated herein by this reference; approving an Indenture of Trust (the
"Indenture") between the Corporation and First National Bank of Omaha, as Trustee and Paying
Agent, 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 not to exceed $140,000,000
Lease Revenue Bonds (the `Bonds"), to be issued in one or more separate series as set forth in
the Indenture and the issuance and delivery thereof; delegating authority to the City's Finance
Director to determine the final price, interest rates, principal amount, tax status and redemption
provisions for the Bonds; and 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:
ARTICLE I
FINDINGS AND DETERMINATIONS
The Mayor and Council of the City of Omaha hereby find and determine:
(a) the City of Omaha Public Facilities Corporation, a nonprofit corporation
organized under Nebraska law (the "Corporation"), has been established for the purpose
of assisting the City of Omaha, Nebraska (the "City") in the (i) acquisition, construction,
furnishing and equipping of improvements and additions to public buildings and (ii)the
acquisition of equipment and vehicles for the benefit of the City; and
(b) the City intends that certain parcels of real estate owned by the City,
which are within the geographical boundaries of the City, constitute the sites of the
Project (collectively, the "Project Sites"). The Project Sites are currently encumbered by
two Site Lease Agreements dated as of April 24, 2002 (collectively, the "2002 Leases"),
by and between the City and City of Omaha Convention Hotel Corporation, a Nebraska
nonprofit corporation (the "Hotel Corporation"); and
(c) Under the 2002 Leases, the City maintains fee ownership of the Project
Sites and a reversion right to the improvements, including the upscale convention hotel
(the "Project") located on the Project Sites (the Project Sites together with the Project
shall be referred to herein as the "Property"); and
4823-6802-7711.3
Ordinance No. 4/0,50
Page 2
(d) the Corporation is willing to issue its lease revenue bonds, in one or more
series, in the aggregate principal amount of not to exceed $140,000,000 (the "Bonds") on
behalf of the City, the proceeds of which Bonds will be used, in part, to acquire the
Project and to lease rights in and to the Project to the City; and
(e) 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 (i) entering into the Site Lease Agreement (the "Site Lease"), whereby the
Corporation will lease certain rights in and to the Property from the City and (ii) entering
into a Lease-Purchase Agreement (the "Agreement") whereby the City will lease the
rights of the Corporation to the Property 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
(f) the Corporation is willing to enter into an Indenture of Trust (the
"Indenture") with First National Bank of Omaha, as trustee and paying agent (the
"Trustee"), setting forth the maturities, interest rates and other terms and conditions of
the Bonds, and providing for the application of the proceeds of the Bonds to the costs of
the Project; and
(g) 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 may qualify for exclusion from gross income of the holders for the
purpose of federal income taxation; and
(h) the Corporation has requested D.A. Davidson & Co. (the "Underwriter")
to underwrite the Bonds; and
(i) the City has determined that it is in its best interest that the Corporation
issue the Bonds and apply the proceeds thereof to (i) acquiring the certain interest in and
to the Property and that it is necessary for the City to enter into the Agreement, and the
Site Lease, approve the Indenture and satisfy certain requirements of federal income tax
law in order that the interest on the Bonds may be excluded from gross income of the
holders thereof for federal income tax purposes.
ARTICLE II
AUTHORIZATIONS AND APPROVALS
Section 2.1. The previous formation of the Corporation is hereby acknowledged,
approved and ratified by the City Council, and the Corporation is requested and 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 (i) acquiring certain interest in and to the Property, and
(ii) paying costs of issuance of the Bonds.
4823-6802-7711.3
Ordinance No. 7JO3
Page 3
Section 2.2. 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
fillings-in of blanks as shall have been approved by the City officials executing the same
pursuant to this Section. The execution and delivery of the Agreement by such officials is
conclusive evidence of the approval of such officials of any such changes, insertions, omissions
or filling-in of blanks.
Section 2.3. The Site Lease is hereby authorized and approved, and the Mayor of the
City shall execute the Site 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. The execution and delivery of the Site
Lease by such officials is conclusive evidence of the approval of such officials of any such
changes, insertions, omissions or filling-in of blanks.
Section 2.4. The Indenture in substantially the form presented to the City Council and
attached hereto as Exhibit C, is hereby authorized and approved.
Section 2.5. Payment by the City of the lease-purchase rental amounts from time to time
respectively due under and pursuant to the Agreement is hereby authorized and directed.
Section 2.6. The City Finance Director (or the City Comptroller if the Finance Director
is unable for any reason to exercise such authority) is authorized and directed to approve on
behalf of the City, subject to the provisions of this Ordinance, the Corporation's designation and
establishment of the following terms in connection with each series of the Bonds: (1) the
aggregate principal amount of the Bonds to be issued, not exceeding the aggregate principal
amounts set forth in Article I, (2) the years in which a principal maturity of the Bonds shall occur
and the principal amount of the Bonds to mature in each of such years, maturing on such dates as
he or she may determine in each year, (3) the date of final maturity of the Bonds, which shall in
no event be later than thirty-five years from the date of issuance of the Bonds, (4)the date or
dates upon which the Bonds shall be sold, (5) the rate or rates of interest to be carried by each
maturity of each series of the Bonds, such that the true interest cost of the each series of Bonds
shall not exceed 6.00% per annum, (6) the first interest payment date for each series of the
Bonds, (7) the purchase price for each series of the Bonds, which shall be no less than 96.0% of
the principal amount thereof(including an underwriter discount of not to exceed 0.70%), (8) the
designation of such Bonds as taxable series or tax-exempt series, as may provide, in the best
judgment of the Finance Director or City Comptroller, optimal marketability of the Bonds under
then-prevailing market conditions, and (9) all other terms of the Bonds not otherwise determined
or fixed by the provisions of this Ordinance.
Section 2.7. The issuance and delivery by the Corporation of the Bonds is subject to
final written approval of the terms of the Bonds by the City Finance Director, as provided by
4823-6802-7711.3
Ordinance No. 7/O g3
Page 4
Section 2.6, in an Award Certificate delivered by the City and executed on the date of sale of the
Bonds (the "Award Certificate").
Section 2.8. 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 Site Lease and the
Indenture. 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 2.9. The City will accept delivery of full legal and unencumbered title to the
Property not later than the end of the term of the corresponding series of the Bonds, subject to
the 2002 Leases.
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.
[Signature Page to Follow]
4823-6802-7711.3
Ordinance No. 1d03
Page 5
INTRODUCED BY CO,'
MIEMBER
APPROVED:
PASSED jAti 3 1201
f 65 Q. eitd «Z.) /,
- 0MAYOR OF THE DA E
CITY OF OMAHA
ATTEST:
CI ERK OF TH C TY OF OMAH0/0/7
ATE
APP OVED AS TO FORM:
/ei
13°IYI
Dth44 Li CITY ATTORNEY DATE
4823-6802-7711.3
EXHIBIT A
CITY OF OMAHA PUBLIC FACILITIES CORPORATION,
as Lessor
to
CITY OF OMAHA,NEBRASKA,
as Lessee
LEASEPURCHASE AGREEMENT
Dated as of March 1, 2017
I
4820-8302-9056.1
Section 1. Term of Lease 1
Section 2. Rental Payments 1
Section 3. Place of Payment and Assignment of Rentals 2
Section 4. Repairs and Maintenance 3
Section 5. Insurance,Damage or Destruction 3
Section 6. Condemnation 4
Section 7. Indemnification of Corporation 4
Section 8. Corporation's Right of Inspection 4
Section 9. Alterations,Additions and Improvements; Further Development 4
Section 10. Use of Premises and Equipment 5
Section 11. [Tax Covenant 5
Section 12. Subletting 5
Section 13. No Right of Surrender 5
Section 14. Acquisition of the Project 5
Section 15. Termination of Interest 6
Section 16. DefauIt 6
Section 17. Donations to City 6
Section 18. Financing 6
Section 19. Amendment of This Agreement 7
Section 20. Refund of Sales Tax 7
Section 21. Discrimination 7
Section 22. Authority of Parties 7
Section 23. Compliance With Laws 7
Section 24. Notices 7
Section 25. Waiver 7
Section 26. No Merger 8
Section 27. Benefit 8
Section 28. Section Captions 8
Section 29. Performance by City of Omaha Convention Hotel Corporation 8
SCHEDULE I SCHEDULE OF BASIC RENT PAYABLE BY THE CITY OF OMAHA,
NEBRASKA
APPENDIX A LEASEHOLD PROPERTY DESCRIPTION
4820-8302-9056.1
LEASEPURCHASE AGREEMENT
THIS LEASEPURCHASE AGREEMENT (the "Agreement") is made and entered into
as of March 1, 2017 by and between CITY OF OMAHA PUBLIC FACILITIES
CORPORATION, a Nebraska nonprofit corporation (the "Corporation"), as Lessor, and the
CITY OF OMAHA, NEBRASKA, a municipal corporation (the "City"), as.Lessee, and is an
amendment to the LeasePurchase Agreement by and between the Corporation and the City dated
as of December 1, 2006 (the "Original Agreement") within the meaning of Section 2.09 of the
Indenture of Trust between the Corporation and First National Bank of Omaha, as trustee, dated
as of December 1, 2006 (the"Original Indenture").
RECITALS:
The Corporation hereby leases to the City the property rights and interest to the real
property described at Appendix A hereto (the "Project"). All words and phrases defined in the
hereinafter defined Indenture shall have the same meanings for the purposes of this Agreement.
Section 1. Term of Lease. The term of this Agreement shall begin as of the date hereof and end
on February 1,20 ; unless sooner terminated or extended as hereinafter in Section 15 provided.
Section 2. Rental Payments.
(a) Basic Rent. The City shall pay to the Corporation in the form of cash, Basic Rent in the
amounts and on or before the dates shown on Schedule I, which is attached hereto and made a
part hereof by this reference. It is the intention of the Corporation and the City that the Basic
Rent herein specified shall be net to the 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 the City and that the Corporation shall
be indemnified by the City against all such costs, expenses and obligations. Such Basic Rent
shall be sufficient to pay, when due, the principal of and interest on the Bonds (as hereinafter
defined). In addition to Basic Rent, the 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. Such Rental Payments shall be and constitute those increases to the Basic Rent and
Additional Rent as payable by the City under the Original Agreement required by Section 2.09 of
the Original Indenture as a precondition to the issuance of Bonds of Other Series within the
meaning of the Original Indenture.
(b) Additional Rent. The City acknowledges:
(i) that under present law, the Project is subject to taxation and that the City shall pay such
taxes so that the Basic Rent will be net to the Corporation;
(ii) that to pay the costs of financing the Project, as provided in Section 14 hereof, the
Corporation will issue its Lease Revenue Bonds, Series 2017 (the "Bonds") in the aggregate
principal amount of$ , payable from the Basic Rent; that First National Bank of
3
4820-8302-9056.1
Omaha, as trustee ("Trustee"), will serve under the Indenture of Trust dated as of March 1, 2017
between the Trustee and the 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 or on behalf of City.
Accordingly, as between itself and the Corporation, the 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 the Corporation promptly forwarding to the City any notice,bill or other advice received by
the Corporation regarding any such taxes, assessments or charges (provided that any failure by
the Corporation so to forward any such notice, bill or other advice shall not release the City from
its obligation to pay hereunder);
(B) the fees and expenses of the Trustee under the Indenture governing the issuance of the
Bonds, with the City paying such fees and expenses as statements are rendered by the Trustee to
the City; and
(C) the expenses in connection with any audit or examination of the Corporation's records
requested by the City.
(c) Unconditional Obligation. The obligations of the City under this Agreement are general
obligations of the City payable from the City's General Fund each year of the term of this
Agreement on the same basis as operating expenses and other contractual obligations of the City.
This Agreement is an unconditional obligation of the City and is not subject to annual renewal.
(d) No Default. The City is not in default under the Original Agreement.
Section 3. Place of Payment and Assignment of Rentals. All Basic Rent shall be paid directly
to the Trustee for the benefit of the owner or owners of the Bonds issued by Corporation. The
Trustee is the assignee of all of the Corporation's rights to collect Basic Rent due hereunder, and,
as such assignee, the Trustee may enforce the Corporation's rights hereunder to collect and
receive Basic Rent.
The City shall have the right at its option, exercisable at any time, to prepay all or a
portion of the Basic Rent without prepayment penalty or premium. The City shall select and
shall provide written notice to the Trustee and the Corporation the Bonds to which any
prepayments shall be applied. To the extent such prepayments extinguish all Basic Rent
obligations of the City associated with the Bonds, this Agreement shall terminate. Such
prepayments shall be applied to redeem all or a portion of the Bonds identified by the City on
such Bond's first permitted redemption date, plus interest to accrue on such Bonds to said
4
4820-8302-9056.1
redemption date all as provided by the terms of the Indenture. In such event, the City shall
continue to pay the Trustee's fees and the Additional Rent as specified in Section 2(b) hereof
until the Bonds are fully paid
Section 4. Repairs and Maintenance. Throughout the term of this Agreement, the 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, mechanical and electrical, 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 the City shall be at least equal in quality and class to the
original work. The 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) The City shall obtain and keep in force during the term of this Agreement fire and
extended coverage insurance with respect to the Project in an amount at least equal to the full
insurable value of the Project. The term "full insurable value," as used herein, shall mean the
actual replacement value or, at the option of the City, any lesser amount which is equal to or
greater than the amount of the Bonds then outstanding. Such insurance shall name the City, the
Corporation and the Trustee as insureds as their interest may appear. So long as the City is not in
default hereunder, any loss shall be adjusted by and paid to the City. The City shall maintain
possession of the policies or certificates evidencing such insurance.
(b) Notwithstanding the foregoing, if the City shall insure properties similar to the Project by
self-insurance, the City may, at its option, insure the Project, in whole or in part, by means of an
adequate selfinsurance fund set aside and maintained out of its revenues.
(c) No damage to or destruction of any part of the Project, whether by fire or any other
casualty, shall entitle the 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 the City
shall elect not to replace or restore the Project and shall provide to the Trustee funds sufficient to
redeem a principal amount of the of Bonds equal to the ratio of the dollar amount of damage or
destruction award to the principal amount of the related Bonds then outstanding, plus accrued
interest to the redemption date.
(d) The City represents, warrants and covenants that it owns such real estate described in
Appendix A hereto in fee simple subject to those easements, covenants and restrictions of record,
including the Site Lease Agreements each dated as of April 24, 2002 by and between the City
and the City of Omaha Convention Hotel Corporation. The City warrants and will defend title to
such real estate against the lawful claims of all persons claiming the same or any part thereof
through, by or under the City.
5
4820-8302-9056.1
Section 6. Condemnation. If at any time during the term of this Agreement the whole or any
part of the 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 the City to pay the Rental Payments provided in
Section 2 hereof and to perform all of the other obligations of the City hereunder, and the 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 the Corporation and applied on the last
unpaid Basic Rent installment for the Project, unless the City shall elect to have all or a portion
of the Bonds relating to the Project redeemed in an amount equal to the ratio of the dollar amount
of the condemnation award to the principal amount of the Bonds then outstanding, as provided
by the Indenture.
Section 7. Indemnificat►on of Corporation. The City shall indemnify the 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)the City's performance of, or the failure of the
City to perform, any obligation to be performed by the City hereunder; (b) any use or condition
of the Project or any part thereof or, in the case of the real estate portion thereof; any public
street, alley, sidewalk, curb, passageway or space within or adjacent thereto; (c) any personal
injury, including death resulting therefrom, or property damage occurring by operation or
casualty of or on or about the Project or, in the case of the real estate portion thereof, any
adjacent street, alley, sidewalk, curb, passageway or space; (d)the failure of the City to comply
with any requirement of any governmental authority; or (e) any construction lien or security
agreement filed against the Project or any part thereof.
Section 8. Corporation's Right of Inspection. The Corporation, its agents and representatives
shall have the right to access or enter upon the Project at any reasonable time for the purpose of
inspection.
Section 9. Alterations, Additions and Improvements; Further Development. The 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 the Corporation be obligated or
required to make any alterations, additions or improvements except as provided in Section 14
hereof.
Section 10. Use of Premises and Equipment. The Project shall be used by the City as an
upscale convention center hotel facility and other such uses as the 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 an upscale convention center hotel facility.
Section 11. [Tax Covenant. The City agrees that it shall not take any action, or permit any
action to be taken, or any condition to exist which causes or may cause the interest on the Bonds
to be or become includable in gross income of the recipients thereof for purposes of federal
income taxation under the Code].
6
4820-8302-9056.1
Section 12. Subletting. [Reserved]
Section 13. No Right of Surrender. The City shall have no right or privilege to surrender the
Project to the Corporation, and the City's abandonment of the Project or the City's failure or
inability to use the Project for any reason at any time shall not relieve the City of its obligation to
pay the Rental Payments required under Section 2 of this Agreement.
Section 14. Acquisition of the Project. The Corporation agrees that it has or will acquire the
Project, and that such project is suitable for the City's use as an upscale convention cent hotel
facility. The Corporation shall have no responsibility for the sufficiency of the Project or any
part thereof. The Corporation agrees to contribute toward the cost of acquiring, the Project such
proceeds of the sale of the Bonds as remain after the payment of expenses of issuing the Bonds.
[Such acquisition may take the form of the purchase of debt which is accompanied by certain
rights to the Project if such debt is not timely paid]. Promptly after execution of this Agreement,
the Corporation will deposit the net proceeds of the sale of the Bonds with Trustee to be
disbursed in payment of costs of acquiring the Project.
A leasehold interest in and to the Project, including any and all buildings, equipment,
improvements and other property, shall vest in the Corporation as such property becomes a part
of the Project, and the Corporation shall continue to have such interest therein until City has
satisfied all of its obligations to the Corporation under this Agreement and the Project is
conveyed to the City.
Upon the completion of the acquisition 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 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 financing or refinancing the
Project in excess of the net proceeds of the sale of the Bonds and other moneys provided by the
City to the Corporation in respect of the Project.
The 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, fee simple title to the real property described in Appendix A not
being vested in City, or any defect in or lien or encumbrance on the City's title to such real
property), in the acquisition or operation of the Project or any part thereof, shall entitle the 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.
The 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
performance, refunds or other adjustments shall be applied toward the costs of the acquisition or
repair of the Project.
The Corporation agrees to cooperate with the City if the City should request that the
Corporation issue its refunding, additional or completion bonds and apply the proceeds thereof to
the redemption of the Bonds or Bonds of Other Series in whole or in part or to additions to or the
7
4820-8302-9056.1
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 refunding, additional or
completion bonds and related costs and expense.
Section 15. Termination of Interest. Upon the City having paid all of the Rental Payments
and moneys due the Corporation hereunder and the termination of this Agreement, the
Corporation's interest in the Project pursuant to the Lease shall terminate, and the City shall have
full and unencumbered title to the real property and all improvements thereon and all personal
property, free and clear of such interest.
The Corporation further covenants and agrees that, after termination of this Agreement,
the Corporation will donate to the City any Bond proceeds or other moneys provided to the
Corporation by the City in respect of the Project and remaining with the Corporation after paying
all of its debts and obligations in respect of the Project.
Section 16. 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 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 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, the
Basic Rent on the dates and in the amounts shown in Schedule I attached hereto. Such remedy
shall not be an exclusive remedy.
Section 17. Donations to City. City may receive and accept donations from any person, firm,
corporation or governmental body to assist in the refinancing, acquisition, construction,
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 refinancing, acquiring, constructing,
improving and equipping the Project.
Section 18. Financing. City consents to and approves of the issuance by Corporation of the
Bonds in the aggregate principal amount of $ , dated the original delivery date
thereof, on the terms and conditions specified in the Indenture. [City covenants and agrees for
the benefit of Corporation and the holders of the Bonds that City shall comply with all necessary
restrictions of the Internal Revenue Code of 1986, as amended, and the Regulations thereunder to
preserve the exclusion of interest on the Bonds from gross income for purposes of federal
income taxation]. City has undertaken to provide ongoing disclosure for the benefit of
Bondholders pursuant to Section(b)(5)(i) of Securities and Exchange Commission Rule 15c212
under the Securities Exchange Act of 1934, as amended (17 C.F.R., § 240.15c212), in that
certain Letter Agreement to be dated the date of original delivery of the Bonds between City and
Trustee.
Section 19. 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.
8
4820-8302-9056.1
Section 20. 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. City
agrees that any refund or rebate of sales or use taxes which it receives, including amounts
remitted by Corporation pursuant to this Section 20, will be used to pay costs of acquiring the
Project.
Section 21. Discrimination. Any contractor shall not, in performance of a contract with City
associated with the Project, 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 22. 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 23. Compliance With Laws. Corporation shall comply with all applicable laws,
ordinances,rules and regulations in connection with the acquisition or refinancing of the Project.
Section 24. 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 City of Omaha Planning Department, 1819 Farnam Street,
Suite 1100, Omaha, Nebraska 68183, Attention: Planning Director and to City at Suite 1000,
1819 Farnam Street, Omaha, Nebraska 68183, Attention: Finance Director, 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 25. 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.
Section 26. No Merger. Neither this Agreement, the Lease nor any provisions hereof or thereof
shall be construed to effect a merger of the leasehold interest of City to the Project sites and
City's leasehold interest herein.
Section 27. Benefit. This Agreement shall be binding upon and shall inure to the benefit of the
parties and their successors or assigns.
Section 28. 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.
Section 29. Performance by City of Omaha Convention Hotel Corporation. The parties
hereby acknowledge and accept that the City may meet any and all of its obligations under this
9
4820-8302-9056.1
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 PUBLIC FACILITIES
CORPORATION
ATTEST:
By
President
Secretary/Treasurer
[Corporation Signature Page to Lease Purchase Agreement]
11
4820-8302-9056.1
SCHEDULE I
SCHEDULE OF BASIC RENT
PAYABLE BY THE CITY OF OMAHA,NEBRASKA
CITY OF OMAHA PUBLIC FACILITIES CORPORATION
LEASE REVENUE BONDS
Series 2017
Period Annual Debt
Ending Principal Coupon Interest Debt Service Service
I-13
4820-8302-9056.1
EXHIBIT B
CITY OF OMAHA,NEBRASKA,
as Lessor
to
CITY OF OMAHA PUBLIC FACILITIES CORPORATION,
as Lessee
SITE LEASE AGREEMENT
Dated as of March 1, 2017
4845-1454-5728.1
SITE LEASE AGREEMENT
THIS SITE LEASE AGREEMENT (the "Site Lease") is made and entered into as of
March 1, 2017 by and between the CITY OF OMAHA, NEBRASKA, a municipal corporation
(the "City"), as lessor, and CITY OF OMAHA PUBLIC FACILITIES CORPORATION, a
Nebraska nonprofit corporation (the "Corporation"), as lessee.
RECITALS:
The City, in consideration of the covenants of the Corporation hereinafter set forth, does
by these presents lease to the Corporation its interest in the parcels of ground and buildings or
improvements now situated thereupon (the "Leased Hotel Real Estate"), located in the City of
Omaha, Nebraska, more specifically described at Appendix A hereto. The City represents,
warrants and covenants that it owns the Leased Hotel Real Estate described at Appendix A
hereto in fee simple, that such Real Estate is free from encumbrances, except those easements,
covenants and restrictions of record, and except the Site Lease Agreements each dated as of
April 24, 2002 by and between the City and the City of Omaha Convention Hotel Corporation,
pursuant to which the City maintains a reversion right to the improvements, including the
upscale convention hotel located on the Leased Hotel Real Estate, and that the City warrants and
will defend title to such Leased Hotel Real Estate against the lawful claims of all persons
claiming the same or any part thereof through,by or under the City.
TO HAVE AND TO HOLD the same unto Corporation from, on and after the date hereof
to and including the earlier of(i)February 1, 20_ or (ii) the termination dates of that certain
LeasePurchase Agreement dated as of March 1, 2017 by and between the Corporation, as lessor,
and City, as lessee, the City warrants to Corporation the reversion right to the improvements
located on the Leased Hotel Real Estate (the"Property Right") for and during the term hereof.
Corporation, in consideration of the leasing of the Property Right as above set forth, has
agreed with the City to pay the City as rent for the use of the same the sum of Ten Dollars
($10.00) per year, which rent has been paid by the Corporation for the entire term, the receipt
and sufficiency of which are hereby acknowledged by the City.
The Corporation further covenants with the City that, at the expiration of the term of this
Site Lease, the Corporation shall release back to the City the Property Right in and to the Leased
Hotel Real Estate, together with any buildings or improvements now or hereafter situated
thereupon during the lease term,without further action or demand.
It is further covenanted and agreed between the parties hereto that Leased Hotel Real
Estate shall be used only in connection with the provision of an upscale convention center hotel
facility, and functions incidental thereto.
The covenants herein shall extend to and be binding upon the successors and assigns of
the parties to this Site Lease.
[Signature Page to Follow]
2
4845-1454-5728.1
IN WITNESS WHEREOF, the parties hereto have caused this Site Lease Agreement to
be executed by their duly authorized officers as of the day and year first written above.
[SEAL] CITY OF OMAHA,NEBRASKA
By
ATTEST: Mayor
By
City Clerk
APPROVED AS TO FORM:
By
City Attorney
[City Signature Page to Site Lease Agreement]
3
4845-1454-5728.1
EXHIBIT C
INDENTURE OF TRUST
between
CITY OF OMAHA PUBLIC FACILITIES CORPORATION
and
FIRST NATIONAL BANK OF OMAHA,
as Trustee
Dated as of March 1,2017
4811-5805-5232.1
ARTICLE I
DEFINITIONS 6
ARTICLE II
ISSUANCE AND EXECUTION OF BONDS
Section 2.01. Issuance of Bonds 8
Section 2.02. Terms, Medium and Place of Payment 8
Section 2.03. Execution 10
Section 2.04. Form of Bonds 10
Section 2.05. Certificate of Authentication 10
Section 2.06. Authorization and Delivery 10
Section 2.07. Mutilated, Lost, Stolen or Destroyed Bonds 10
Section 2.08. Registration and Transfer of Bonds 10
Section 2.09. Additional Bonds 11
Section 2.10. Refunding Bonds 12
Section 2.11. Temporary Bonds 12
Section 2.12. BookEntryOnly Bonds 12
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
Section 3.01. Bonds Redeemable 15
Section 3.02. Optional Redemption 15
Section 3.03. Sinking Fund Redemption 15
Section 3.04. Extraordinary Optional Redemption 16
Section 3.05. Notice of Redemption 16
Section 3.06. Cancellation of Bonds 17
ARTICLE IV
GENERAL COVENANTS
Section 4.01. Payment of Bonds 17
Section 4.02. Books and Records; Annual Accounting 17
Section 4.03. Trustee Enforcement of Agreement 17
Section 4.04. Bonds of Other Series; Parity Bonds 18
Section 4.05. Corporate Existence 18
Section 4.06. Arbitrage,Tax Covenants 18
Section 4.07. Special Representations and Warranties 19
Section 4.08. Development Restriction 20
ARTICLE V
BOND FUND
Section 5.01. Bonds Secured by Basic Rent Payments 21
Section 5.02. Creation of Bond Fund 21
Section 5.03. Deposits to Bond Fund 21
Section 5.04. Use of Moneys in Bond Fund 21
2
4811-5805-5232.1
Section 5.05. Custody of Bond Fund; Withdrawals 21
Section 5.06. Unclaimed Moneys 21
Section 5.07. Additional Rent 21
ARTICLE VI
ACQUISITION FUND,REDEMPTION ESCROW FUND,AND COST OF ISSUANCE FUND
Section 6.01. Creation of Acquisition Fund 22
Section 6.02. Use of Moneys in Acquisition Fund 22
Section 6.03. Requisitions 22
Section 6.04. Creation of Redemption Escrow Fund 22
Section 6.05. Use of Moneys in Redemption Escrow Fund 22
Section 6.06. Creation of Cost of Issuance Fund 22
Section 6.07. Use of Moneys in Cost of Issuance Fund 23
ARTICLE VII
INVESTMENTS 23
ARTICLE VIII
DISCHARGE OF LIEN AND DEFEASANCE 23
ARTICLE IX
DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND BONDHOLDERS
Section 9.01. Events of Default 25
Section 9.02. Acceleration 25
Section 9.03. Other Remedies 26
Section 9.04. Limitation on Bondholders' Right To Institute Proceedings 26
Section 9.05. Possession of Bonds Not Required for Enforcement 26
Section 9.06. Waiver 26
Section 9.07. Application of Moneys 26
Section 9.08. Restoration to Former Position 28
Section 9.09. Bondholders' Right To Direct Proceedings 28
ARTICLE X
THE TRUSTEE
Section 10.01. Acceptance of Trusts 28
Section 10.02. Limitations on Liability 29
Section 10.03. Dealings in Bonds 29
Section 10.04. Compensation 29
ARTICLE XI
AMENDMENT OF INDENTURE
Section 11.01. Supplemental Indentures Not Requiring Consent of Bondholders 29
Section 11.02. Supplemental Indentures Requiring Consent of Bondholders 29
Section 11.03. Consent of Trustee Required 30
3
4811-5805-5232.1
ARTICLE XII
AMENDMENT OF THE LEASE AGREEMENT
Section 12.01. Amendment of Agreement Not Requiring Consent of Bondholders 30
Section 12.02. Amendment of Agreement Requiring Consent of Bondholders 31
Section 12.03. Consent of Trustee Required 31
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Execution of Instruments; Proof of Ownership 31
Section 13.02. Counterparts 31
Section 13.03. No Personal Liability of Corporation Officials;Limited Liability of
Corporation to Bondholders 32
Section 13.04. Severability 32
EXHIBIT A FORM OF BOND
EXHIBIT B FORM OF REQUISITION
4
4811-5805-5232.1
INDENTURE OF TRUST
THIS INDENTURE OF TRUST is made and entered into as of March 1, 2017 by and
between CITY OF OMAHA PUBLIC 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"), and is a supplemental indenture
within the meaning of Section 2.09 of the Indenture of Trust between Corporation and Trustee
dated as of December 1, 2006 (the"Original Indenture").
RECITALS:
WHEREAS, Corporation, as lessor,has entered into a LeasePurchase Agreement dated as
of March 1, 2017 (the "Agreement" which Agreement is an amendment to the Original
Agreement within the meaning of Section 2.09 of the Original Indenture) with the City of
Omaha, Nebraska ("City"), as lessee, under which Corporation has leased to City certain real
property interests in and to an upscale convention center hotel facility and related improvements
(the "Project"); and
WHEREAS, in order to obtain the principal portion of the funds for the acquisition and
equipping of the Project, it is necessary for Corporation to issue its lease revenue bonds in one or
more series in the aggregate principal amount of $ (the "Bonds"). The Bonds as
issued hereunder are"Bonds of Other Series"within the meaning of the Original Indenture; and
WHEREAS, the Bonds are secured by a pledge of the Basic Rent(as hereinafter defined)
to become due under the Agreement, and the Trustee has agreed to act as Trustee under this
Indenture of Trust (this "Indenture") for the benefit of the owner or owners of the Bonds issued
as hereinafter provided; and
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 $10 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, 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 Basic Rent received by Corporation from City under the Agreement, such
5
4811-5805-5232.1
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 (which additional security shall not include the amounts, if
any, on deposit in.the Rebate Fund)by Corporation or by anyone in its behalf(or with its written
consent) to Trustee [to and including bonds purchased by the Corporation with the proceeds of
the Bonds, the receipt of payment on such bonds which shall be pledged hereunder], 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, perfonn 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 (net of Additional Rent) due under
the Agreement, are to be dealt with and disposed of under, upon and subject to the terms,
conditions, trusts, uses and 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.
6
4811-5805-5232.1
"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 purposes specified in Article VI of this Indenture.
"Additional Rent" means the amounts City is required by the Agreement to pay with
respect to the Project, in addition to the Basic Rent.
"Basic Rent"means the amounts City is required by the Agreement to pay to Corporation
as rent for the Project.
"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 Bonds.
"Bonds of Other Series"means bonds issued hereunder other than the Bonds.
"Bond Year" means the period of time, beginning on February 1 of each calendar year
and ending on January 31 of the immediately succeeding calendar year except that the first Bond
Year shall commence on the delivery date of the Bonds and end on February 1, 2018.
["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].
"Lease" means the Site Lease Agreement dated as of March 1, 2017 by and between the
City, as lessor, and the Corporation, as lessee,together with any amendments thereto.
"Original Agreement" means the LeasePurchase Agreement by and between Corporation
and City, dated as of December 1, 2006, as subsequently supplemented.
"Original Indenture" means the Indenture of Trust by and between Corporation and
Trustee dated as of December 1, 2006, as subsequently supplemented.
"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.
"Parity Bonds" means, collectively, each issue of bonds heretofore issued under the
Original Indenture.
"Person"includes natural persons, firms, associations, corporations and public bodies.
7
4811-5805-5232.1
"Record Date"means January 15 and July 15 of each year.
"Rental Payments"means, collectively, the Basic Rent and the Additional Rent.
"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.
ARTICLE II
ISSUANCE AND EXECUTION OF BONDS
Section II.1. Issuance of Bonds. The Bonds in series in the aggregate principal amount
of$ 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 as provided herein.
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 the City to the
Corporation under the Agreement.
Section II.2. Terms, Medium and Place of Payment. The Bonds shall be issued in four series
as fully registered bonds, without coupons, in the denomination of $5,000 or any integral
multiple thereof. The Bonds of each series shall be designated "R-l", and 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 Bonds shall
be dated their date of delivery and shall become due and payable on the maturity date and in the
years set forth below and shall bear interest at the rates per annum as shown below:
Type Maturity Date Principal Interest Type Maturity Date Principal Interest
(February 1) Amount Rate (February 1) Amount Rate
The Bonds shall bear interest from their date of delivery and shall be payable
semiannually on February 1 and August 1 of each year, starting August 1, 2017.
•
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.
8
4811-5805-5232.1
Payment of interest on the Bonds shall be made to the registered owners thereof and shall be paid
(i)by check or draft mailed to each registered owner at its address as it appears on the
registration books of Corporation on the respective 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
owners of$1,000,000 or more in aggregate principal amount of the Bonds upon written notice by
the registered owners given to Trustee not later than the close of business on the respective
Record Date.
Section II.3. 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 II.4. 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 II.5. 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
Bonds 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 Bonds have been authenticated under this Indenture.
Section II.6. 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 aggregate purchase price thereof together with accrued interest, if any,to the date
of payment and delivery of the Bonds.
Section II.7. 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, new Bonds of like date, number,
maturity, series and tenor in exchange and substitution therefor, and upon cancellation of such
mutilated Bonds, or in lieu of and in substitution for such lost Bonds,upon the owner paying the
reasonable expenses and charges of Corporation and Trustee in connection therewith, and, in
case of Bonds destroyed or lost, the owner filing with Trustee evidence satisfactory to it that
such Bonds were destroyed or lost, and furnishing Corporation and Trustee with indemnity
satisfactory to them.
Section II.8. 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.
9
4811-5805-5232.1
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 and series 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 respective Record Date and
ending at the close of business on the business day next preceding any interest 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.
Section II.9. Additional Bonds. Additional series of bonds having status and rank equal to the
Bonds and the Parity Bonds may be issued from time to time under the terms of the Original
Indenture (including for the purposes of this Section 2.09 and Section 2.10 hereof, 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:
(a) Corporation is not in default under the Original Indenture;
(b) City is not in default under the Original Agreement (including for the purposes of this
Section 2.09 and Section 2.10 hereof,the Agreement);
(c) Corporation and City shall, prior to the issuance of such Bonds of Other Series, have
entered into an amendment to the Original 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 the outstanding Parity Bonds, the 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 Rent the fees and expenses
of Trustee with respect to the Bonds of Other Series;
10
4811-5805-5232.1
(d) 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 the Parity Bonds; and
(e) the issuance of such Bonds of Other Series shall have been approved by City.
Nothing herein contained shall prevent Corporation, at the request of City, in its sole
discretion, from authorizing the issuance of bonds which are secured by lease rental payments of
City on a basis junior or inferior to the Rental Payments to be made into the Bond Fund for the
payment of Bonds issued hereunder, either before or after the issuance of such junior lien bonds.
Section II.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:
(a) Corporation is not in default under the Original Indenture, or the default will be cured
immediately after issuance of the refunding bonds;
(b) City is not in default under the Original Agreement;
(c) Basic Rent payable by City under the Original Agreement shall be sufficient to pay,when
due, the principal of and interest on all Bonds and Parity Bonds to be outstanding, including the
refunding bonds;
(d) the issuance of the refunding bonds shall in no manner adversely affect the exclusion
from gross income of the interest on the Bonds or Parity Bonds for federal income tax purposes
(as applicable);
(e) 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
(f) 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 II.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, typewritten, 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 II.12. BookEntryOnly Bonds.
11
4811-5805-5232.1
(a) The Bonds shall initially be issued in bookentry form. The Depository Trust Company,
New York,New York(the "Depository") is hereby appointed the Depository for the Bonds. The
Blanket Issuer Representations Letter incorporated herein by this reference, dated as of June 2,
2005 and signed by Corporation and the Depository, is hereby confirmed. The ownership of one
fully registered Bond for each maturity of each series 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 sameday 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
brokerdealer, 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
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
12
4811-5805-5232.1
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:
(i) any successor securities depository or its nominee;
(ii) 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 bookentry 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 III.1. Bonds Redeemable. The Bonds are noncallable for redemption except pursuant
to Sections 3.02, 3.03 and 3.04 hereof.
Section III.2. Optional Redemption. The Bonds maturing February 1, 20_and thereafter are
subject to redemption at the option of Corporation from any source, in whole or in part at any
time, in such order of maturities as determined by Corporation (and by lot or other random
selection method within a maturity) on or after February 1, 20_at the redemption price of 100%
of the principal amount to be redeemed plus accrued interest to the date of redemption.
13
4811-5805-5232.1
Section III.3. Sinking Fund Redemption. The Bonds maturing on February 1 in the years
20 20_, and 20 , are subject to mandatory sinking fund redemption from Basic Rent
sinking fund payments prior to their respective maturity dates, by lot (or other random selection
method) selected by Trustee, at a price of par without premium in the years and principal
amounts set forth below:
Years of Redemption Principal Required Years of Redemption Principal Required
(February 1) to be Redeemed (February 1) to be Redeemed
To the extent that the Bonds have been previously called for redemption in part and
otherwise than from the sinking fund, each related aforesaid annual sinking fund payment for the
Bonds of such maturity shall be reduced by the amount obtained by multiplying the principal
amount of such Bonds of such maturity so called for redemption,by the ratio which each annual
sinking fund payment for the Bonds of such maturity and series bears to the total sinking fund
payments of such Bonds subject to sinking fund redemption, and by rounding each sinking fund
payment to the nearest$5,000 multiple.
In case a Bond subject to sinking fund redemption is of a denomination larger than
$5,000, a portion of such Bond ($5,000 or any multiple thereof) may be redeemed, but Bonds
shall be redeemed only in the principal amount of$5,000 each or any integral multiple thereof
On or before the thirtieth day prior to each such sinking fund payment date, Trustee shall
proceed to select for redemption (by lot in such manner, as Trustee may determine), from all
Outstanding Bonds subject to sinking fund redemption, a principal amount of such Bonds equal
to the aggregate principal amount of such Bonds redeemable with the required sinking fund
payment, and shall call such Bonds or portions thereof($5,000 or any integral multiple thereof)
for redemption from such sinking fund on the next sinking fund redemption date, and give notice
of such call.
Section III.4. Extraordinary Optional Redemption. The Bonds are subject to redemption at
any time in whole or in part in the event of damage to or destruction of the 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 Project. Any such redemption
shall be at the principal amount of the Bonds equal to the ratio of the dollar amount of such
damage, destruction or condemnation award to the principal amount of the Bonds then
Outstanding,plus accrued interest to the redemption date.
Section III.5. 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
bookentryonly 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 at the address shown on the registration books of the Corporation
kept by the Trustee at the address shown on the registration books of the Corporation kept by the
Trustee not less than 30 days prior to the date fixed for redemption. Any such notice may
provide that the call for redemption on the date specified by such notice is made conditional on
the deposit with Trustee of moneys in an amount equal to the stated redemption price on or
14
4811-5805-5232.1
before such date. 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. 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 III.6. 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 IV.1. Payment of Bonds. Corporation covenants that it will promptly pay the principal
of and interest on the Bonds 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 IV.2. 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 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 IV.3. 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 IV.4. Bonds of Other Series; Parity Bonds.
(a) In satisfaction of the requirements established by Article II of the Original Indenture for
the Bonds to be "Bonds of Other Series", secured on a parity with the Parity Bonds, the
Corporation covenants that (1) it is not in default under the Original Indenture, (2)the City has
15
4811-5805-5232.1
covenanted in the Agreement that it is not in default under the Original Agreement, (3) the City
has approved the issuance of the Bonds, (4)the Agreement amends the Original Agreement to
increase the Basic Rent and Additional Rent (as defined thereby) as contemplated by and
otherwise in accordance with Section 2.09(c) and Section 2.10(c) of the Original Indenture, and
(5)the Bonds are designated by a name indicating that the Bonds are of a different series than the
Parity Bonds.
(b) Corporation covenants that, so long as any of the Bonds are Outstanding, it will not issue
other bonds or notes payable from the Basic Rent due under the Agreement except as permitted
in Article II of the Original Indenture and Article II of this Indenture, and in any event not
without the specific consent to such issuance given by City.
Section IV.S. Corporate Existence. Corporation covenants to maintain its corporate existence
as a nonprofit corporation under the laws of the State of Nebraska, provided that Corporation at
the request and direction of City may merge into or have merged into it one or more nonprofit
public benefit corporations incorporated under the laws of the State of Nebraska for the stated
corporate purpose of assisting City with the acquisition and construction of real and personal
public property and equipment.
Section IV.6. [Arbitrage, Tax Covenants]. (a) 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 Code. 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 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.
(b) 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 applicable regulations. Not
later than 60 days after the final retirement of the Bonds, Corporation shall pay 100% of the
16
4811-5805-5232.1
amount required to be paid pursuant to Section 148(f) of the Code and the applicable regulations.
Each payment shall be filed with the Internal Revenue Service Center, Ogden, Utah 84201. Each
payment shall be accompanied by a copy of the Form 8038T and a statement summarizing the
determination of the amounts paid and to be paid to the United States.
ARTICLE V
BOND FUND
Section V.1. 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, the Parity Bonds and Bonds of Other Series issued as permitted by
Article II.
Section V.2. Creation of Bond Fund. There is hereby created by Corporation and ordered
established with Trustee a trust fund to be designated "2017 Bond Fund", which shall be used to
pay the interest on and principal of the Bonds.
Section V.3. Deposits to Bond Fund. There shall be deposited in the Bond Fund(i) all accrued
interest received, if any, at the time of the issuance, sale and delivery of the Bonds, (ii) all Basic
Rent payments, as and when received, made under the Agreement and (iii)unless otherwise
specified herein, 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 V.4. 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 such Bonds at or prior to
maturity.
Section V.S. 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.
Section V.6. 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.
17
4811-5805-5232.1
Section V.7. Additional Rent. It is understood and agreed that, pursuant to the provisions of
the Agreement, the City agrees to pay costs and expenses as Additional Rent (as that term is
defined in the Agreement), including (i) on the delivery date of the Bonds, the amount required
in addition to the Refunding Bond proceeds deposited in the Redemption Escrow Fund to equal
the Redemption Price of the Refunded Bonds, and(ii)the fees and expenses of Trustee.
ARTICLE VI
ACQUISITION FUND,REDEMPTION ESCROW FUND,AND COST OF ISSUANCE
FUND
Section VI.1. 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 of the
Bonds (excluding accrued interest, if any) in the amount of$ shall be deposited into
the Acquisition Fund. The remaining proceeds of the Bonds shall be deposited in the Costs of
Issuance Fund.
Section VI.2. Use of Moneys in Acquisition Fund. Moneys in the Acquisition Fund shall be
disbursed to the payment of, or to the reimbursement of City for payment of, the costs of the
Project.
Section VI.3. Requisitions. Trustee shall disburse funds in payment of expenses permissible
under Section 6.02 upon receipt of requisitions signed by the President or Secretary of
Corporation, or by the Finance Director of the City of Omaha or the City Comptroller of the City
of Omaha, in each case acting on behalf of Corporation. 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 the Project's costs.
Section VI.4. Creation of Cost of Issuance Fund. A special fund is hereby created with
Trustee to be designated "Cost of Issuance Fund." Upon the issuance and sale of the Bonds, the
proceeds of the Bonds in the amount of$ shall be deposited into the Cost of Issuance
Fund.
Section VI.5. Use of Moneys in Cost of Issuance Fund. Moneys in the Cost of Issuance Fund
shall be disbursed to the pay the expenses of issuing and selling the Bonds, including printing,
legal and financial expenses. Trustee shall disburse moneys from the Cost of Issuance Fund
without further direction by the Corporation or the City. Any such funds not applied to the
payment of the cost of issuing the Bonds within six months of the delivery date of the Bonds
shall be transferred to the Bond Fund.
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 Section 14-563, Reissue Revised Statutes of Nebraska, as amended, viz. securities
of the United States of America, the State of Nebraska, the City, Douglas County, Nebraska, a
18
4811-5805-5232.1
school district of the City, municipally owned and operated public utility property and plants of
the City, or in the same manner as funds of the State of Nebraska are invested, 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 United States
Government Obligations. 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.
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:
(a) a Bond is cancelled whether by reason of payment or redemption prior to maturity;
(b) a Bond is surrendered to Trustee for cancellation;
(c) 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
19
4811-5805-5232.1
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:
(i) such Bond has been irrevocably called or designated for redemption on the first date
thereafter on which such Bonds may be redeemed in accordance with the provisions of
Article III of this Indenture; and
(ii) 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;
(d) 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
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
20
4811-5805-5232.1
Section IX.1. 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:"
(a) 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;
(b) 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
(c) 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.
Section IX.2. 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 IX.3. 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.
21
4811-5805-5232.1
Section IX.4. 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 outstanding hereunder 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 Bonds at or after the maturity thereof to reduce the same to judgment.
Section IX.5. 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 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 IX.6. 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 IX.7. 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:
(a) 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:
(i) 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;
(ii) 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
22
4811-5805-5232.1
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
(iii) 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;
(b) 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 such 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 Bonds over any other Bonds, ratably, according to the amounts due respectively for
principal and interest, to the persons entitled thereto without any discrimination or preference;
and
(c) 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 (b) of this Section, in the
event that the principal of all of such 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 (a) 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 Bonds until such
Bonds shall be surrendered to Trustee for appropriate endorsement, or for cancellation if fully
paid.
Section IX.S. 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
23
4811-5805-5232.1
positions and rights hereunder, respectively, and all rights, remedies, powers and duties of
Trustee shall continue as though no proceeding had been taken.
Section IX.9. Bondholders' Right To Direct Proceedings. Anything in this Indenture to the
contrary notwithstanding, the owners of a majority in principal amount of the Bonds 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 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 X.1. 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 firstclass 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 X.2. 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 X.3. 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 X.4. 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
24
4811-5805-5232.1
and performance of said powers and duties, all of which under the Agreement are to be paid to
Trustee by City.
ARTICLE XI
AMENDMENT OF INDENTURE
Section XI.1. 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 Bonds of Other Series in
accordance with the provisions of Article II of the Original Indenture and 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 XI.2. Supplemental Indentures Requiring Consent of Bondholders. With the
consent of the owners of not less than twothirds of the Bonds outstanding hereunder,
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 Bonds 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 twothirds in aggregate principal amount of the Bonds
outstanding hereunder 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.
25
4811-5805-5232.1
If Trustee and Corporation shall so determine, new Bonds conforming to the amendment
shall be executed and delivered in exchange for Bonds outstanding hereunder 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 XL3. 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 THE LEASE AGREEMENT
Section XII.1. 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(i) 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, or (ii)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 the Original Indenture and this Indenture.
Section XII.2. 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 twothirds in principal amount of all the Bonds Outstanding; provided,however,that in
no event shall the Agreement be amended to reduce the Basic Rent payable by City or extend the
stated date when such Basic Rent shall be due with respect to the Bonds or Bonds of Other
Series, 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 XII.3. Consent of Trustee Required. No amendment, change or modification to the
Agreement shall be made without the written consent of Trustee.
ARTICLE XIII
MISCELLANEOUS
Section XIII.1. 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
26
4811-5805-5232.1
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:
(a) 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;
(b) the fact of the holding of a Bond by any holder and the amount and numbers or other
descriptive details of such Bond and the date of its 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 Bonds 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 XIII.2. 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 XIII.3. 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.
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.
Section XIII.4. 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
27
4811-5805-5232.1
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
[Signature Page to Follow]
•
28
4811-5805-5232.1
IN WITNESS WHEREOF, City of Omaha Public 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 March 1, 2017.
[SEAL] CITY OF OMAHA PUBLIC FACILITIES
CORPORATION
By
President
By
Secretary/Treasurer
[Corporation Signature Page to Trust Indenture]
29
4811-5805-5232.1
EXHIBIT A
(FORM OF BOND)
AS PROVIDED IN THE INDENTURE, UNTIL THE TERMINATION OF THE
SYSTEM OF BOOKENTRYONLY TRANSFERS THROUGH THE DEPOSITORY TRUST
COMPANY, NEW YORK, NEW YORK, REFERRED TO HEREINAFTER AS "DTC"
TOGETHER WITH ANY SUCCESSOR SECURITIES DEPOSITORY APPOINTED
PURSUANT TO THE INDENTURE AND NOTWITHSTANDING ANY OTHER
PROVISIONS OF THE INDENTURE TO THE CONTRARY, A PORTION OF THE
PRINCIPAL AMOUNT OF THIS BOND MAY BE PAID OR REDEEMED WITHOUT
SURRENDER HEREOF TO THE TRUSTEE. DTC, OR A NOMINEE, TRANSFEREE, OR
ASSIGNEE OF DTC OF THIS BOND MAY NOT RELY UPON THE PRINCIPAL AMOUNT
INDICATED HEREON AS THE PRINCIPAL AMOUNT OUTSTANDING AND UNPAID.
THE PRINCIPAL AMOUNT HEREOF OUTSTANDING AND UNPAID SHALL FOR ALL
PURPOSES BE THE AMOUNT DETERMINED IN THE MANNER PROVIDED IN THE
INDENTURE.
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED OFFICER OF DTC
(A) TO THE TRUSTEE FOR REGISTRATION OF TRANSFER OR EXCHANGE OR (B) TO
THE TRUSTEE FOR PAYMENT OF PRINCIPAL, AND ANY BOND ISSUED IN
REPLACEMENT HEREOF OR SUBSTITUTION HEREOF IS REGISTERED IN THE NAME
OF DTC AND ANY PAYMENT IS MADE TO DTC OR ITS NOMINEE, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL BECAUSE ONLY THE REGISTERED OWNER HEREOF, DTC
OR ITS NOMINEE,HAS AN INTEREST HEREIN.
UNITED STATES OF AMERICA
CITY OF OMAHA PUBLIC FACILITIES CORPORATION
LEASE REVENUE BOND
SERIES 2017
No. R $
MATURITY INTEREST DATED
DATE RATE DATE CUSIP
February 1 % March 2017
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS AND NO CENTS ($ )
KNOW ALL MEN BY THESE PRESENTS that City of Omaha Public 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 March 1, 2017 (the "Indenture") by and between
A31
4811-5805-5232.1
the 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 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 30day months) per annum semiannually on February 1
and August 1 of each year, commencing on August 1, 2017, until said Principal Amount 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 Omaha, 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 the Corporation kept by the Trustee
on the Record Date or at such other address as is furnished to the 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 the 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 Basic Rent.
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 the Dated Date
specified above.
(SEAL) CITY OF OMAHA PUBLIC FACILITIES
CORPORATION
By
ATTEST: President
By
Secretary
A32
4811-5805-5232.1
FORM OF REVERSE OF BOND
This Bond is one of an authorized issue of bonds limited to and in the total amount of
$[ ] (the "Bonds"). The Bonds are dated as even date and like tenor except as to,
maturity date, redemption provisions and interest rate issued for the purpose of providing funds
to finance the acquisition of certain real property and related improvements of an upscale
convention center hotel facility (the "Project"). Certain rights in and to the Project have been
leased to City under the LeasePurchase Agreement dated as of March 1, 2017 (the "Agreement")
by and between the Corporation, as lessor, and the City, as lessee. The principal of and interest
on the Bonds are to be paid out of Basic Rent (as that term is defined in the Agreement) payable
by the City pursuant to the Agreement, which Basic Rent have been assigned to the Trustee
under the Indenture, under which the Bonds are issued. The provisions of the Indenture, govern
the rights of the owners of the Bonds. The Basic Rent is in an amount sufficient to pay the
principal of and interest on the Bonds as the same become due.
The Bonds shall be subject to optional redemption, sinking fund redemption and
extraordinary redemption as set forth in the Indenture.
If a Bond in bookentryonly form is to be called for redemption, notice will be mailed to
the Depository not less than 30 days nor more than 60 days prior to the redemption date. If a
Bond not in bookentryonly 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 a bond of the issue of Bonds designated herein and issued under the
provisions of the withinmentioned Indenture.
Date: FIRST NATIONAL BANK OF OMAHA,
Trustee
By
Authorized Officer
A33
4811-5805-5232.1
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, , the undersigned,
hereby sells, assigns and transfers unto (Tax Identification or Social Security
No. ) the withinmentioned 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:
Registered Owner
NOTICE: The signature to this assignment
must correspond with the name as written on the
face of the within bond in every particular,
without alteration or enlargement or any change
whatsoever.
Signature Guaranteed:
NOTICE: Signature(s) must be guaranteed
by a financial institution that is a member of
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.
A34
4811-5805-5232.1
•
EXHIBIT B
FORM OF REQUISITION
Requisition No.
REQUISITION FROM ACQUISITION FUND
TO: First National Bank of Omaha, Trustee
FROM: City of Omaha Public Facilities Corporation
Pursuant to Section 6.03 of the Indenture of Trust (the "Indenture") dated as of March 1,
2017 by and between the City of Omaha Public 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 from the Acquisition Fund:
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 and has not
been the basis of any previous disbursement.
4. A bill or bills or other evidence of each such obligation of the Corporation is
hereby attached.
Dated this day of , 20 .
CITY OF OMAHA
By
Name
Title
D-35
4811-5805-5232.1
{
ORDINANCE NO. g/(33
AN ORDINANCE authorizing and approving a Lease
Purchase Agreement (the "Agreement") between the
City of Omaha Public Facilities Corporation (the
"Corporation") and the City of Omaha, Nebraska
(the "City"), a copy of which Agreement is attached
hereto as Exhibit A and incorporated herein by this
reference, to provide funds for the lease-purchase of
certain real property rights in a upscale convention
hotel facility (the "Project") constructed adjacent to
the City's convention center; authorizing and
approving a Site Lease Agreement (the "Site Lease")
between the Corporation and the City for the leasing
of the reversion right in and to the Project of the City
to the Corporation, a copy of which Site Lease is
attached hereto as Exhibit B and incorporated herein
by this reference; approving an Indenture of Trust
(the "Indenture") between the Corporation and First
National Bank of Omaha, as Trustee and Paying
Agent, 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 not to exceed $140,000,000 Lease PRESENTED TO COUNCIL
Revenue Bonds (the "Bonds"), to be issued in one or more separate series as set forth in the Indenture and 17n9JANi0J142,the issuance and delivery thereof; delegating d `
PUBLICATIONS authority to the City's Finance Director to determine
the final price, interest rates, principal amount, tax r
status and redemption provisions for the Bonds; and Hea ing ,
PUBLICATION OF HEARING satisfying applicable federal income tax law //7
requirements and approving the effective date hereof.
Date 1 r o 11 .5 r ~. Final R ading , k 1 2017
' /, i
PUBLICATION OF ORDINANCE
14823 6802-7711.l rt #141:figi '4-- -' //r' l%/Date 7s �- 49
BUSTER BROWN
City Clerk
MOTION BY COUNCILMEMBER � '
I hereby move that Council Document No. / 9 , Current Series, be
amended in the whole by deleting the existing ordinance and substituting in lieu thereof
the attached ordinance:
APPROVED AS TO FORM:
r,� t a`►7
(r)i-A CI ATTORNEY DAT
• EXHIBIT A
(FORM OF BOND)
AS PROVIDED IN THE INDENTURE, UNTIL THE TERMINATION OF THE
SYSTEM OF BOOKENTRYONLY TRANSFERS THROUGH THE DEPOSITORY TRUST
COMPANY, NEW YORK, NEW YORK, REFERRED TO HEREINAFTER AS "DTC"
TOGETHER WITH ANY SUCCESSOR SECURITIES DEPOSITORY APPOINTED
PURSUANT TO THE INDENTURE AND NOTWITHSTANDING ANY OTHER
PROVISIONS OF THE INDENTURE TO THE CONTRARY, A PORTION OF THE
PRINCIPAL AMOUNT OF THIS BOND MAY BE PAID OR REDEEMED WITHOUT
SURRENDER HEREOF TO THE TRUSTEE. DTC, OR A NOMINEE, TRANSFEREE, OR
ASSIGNEE OF DTC OF THIS BOND MAY NOT RELY UPON THE PRINCIPAL AMOUNT
INDICATED HEREON AS THE PRINCIPAL AMOUNT OUTSTANDING AND UNPAID.
THE PRINCIPAL AMOUNT HEREOF OUTSTANDING AND UNPAID SHALL FOR ALL
PURPOSES BE THE AMOUNT DETERMINED IN THE MANNER PROVIDED IN THE
INDENTURE.
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED OFFICER OF DTC
(A) TO THE TRUSTEE FOR REGISTRATION OF TRANSFER OR EXCHANGE OR (B)TO
THE TRUSTEE FOR PAYMENT OF PRINCIPAL, AND ANY BOND ISSUED IN
REPLACEMENT HEREOF OR SUBSTITUTION HEREOF IS REGISTERED IN THE NAME
OF DTC AND ANY PAYMENT IS MADE TO DTC OR ITS NOMINEE, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL BECAUSE ONLY THE REGISTERED OWNER HEREOF, DTC
OR ITS NOMINEE,HAS AN INTEREST HEREIN.
UNITED STATES OF AMERICA
CITY OF OMAHA PUBLIC FACILITIES CORPORATION
LEASE REVENUE BOND
SERIES 2017
No. R $
MATURITY INTEREST DATED
DATE RATE DATE CUSIP
February 1 % March 2017
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS AND NO CENTS ($ )
KNOW ALL MEN BY THESE PRESENTS that City of Omaha Public 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 March 1, 2017 (the "Indenture") by and between
A31
4811-5B05-5232.1
the 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 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 30day months) per annum semiannually on February 1
and August 1 of each year, commencing on August 1, 2017, until said Principal Amount 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 Omaha, 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 the Corporation kept by the Trustee
on the Record Date or at such other address as is furnished to the 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 the 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 Basic Rent.
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 the Dated Date
specified-above.
(SEAL) CITY OF OMAHA PUBLIC FACILITIES
CORPORATION
By
ATTEST: President
By
Secretary
A32
4811-5805-5232.1
FORM OF REVERSE OF BOND
This Bond is one of an authorized issue of bonds limited to and in the total amount of
$[ ] (the "Bonds"). The Bonds are dated as even date and like tenor except as to,
maturity date, redemption provisions and interest rate issued for the purpose of providing funds
to finance the acquisition of certain real property and related improvements of an upscale
convention center hotel facility (the "Project"). Certain rights in and to the Project have been
leased to City under the LeasePurchase Agreement dated as of March 1, 2017 (the"Agreement")
by and between the Corporation, as lessor, and the City, as lessee. The principal of and interest
on the Bonds are to be paid out of Basic Rent (as that term is defined in the Agreement) payable
by the City pursuant to the Agreement, which Basic Rent have been assigned to the Trustee
under the Indenture, under which the Bonds are issued. The provisions of the Indenture, govern
the rights of the owners of the Bonds. The Basic Rent is in an amount sufficient to pay the
principal of and interest on the Bonds as the same become due.
The Bonds shall be subject to optional redemption, sinking fund redemption and
extraordinary redemption as set forth in the Indenture.
If a Bond in bookentryonly form is to be called for redemption, notice will be mailed to
the Depository not less than 30 days nor more than 60 days prior to the redemption date. If a
Bond not in bookentryonly 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 a bond of the issue of Bonds designated herein and issued under the
provisions of the withinmentioned Indenture.
Date: FIRST NATIONAL BANK OF OMAHA,
Trustee
By
Authorized Officer
A33
4811-5805-5232.1
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, , the undersigned,
hereby sells, assigns and transfers unto (Tax Identification or Social Security
No. ) the withinmentioned 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:
Registered Owner
NOTICE: The signature to this assignment
must correspond with the name as written on the
face of the within bond in every particular,
without alteration or enlargement or any change
whatsoever.
Signature Guaranteed:
NOTICE: Signature(s) must be guaranteed
by a financial institution that is a member of
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.
A34
4811-5805-5232.1
EXHIBIT B
FORM OF REQUISITION
Requisition No.
REQUISITION FROM ACQUISITION FUND
TO: First National Bank of Omaha, Trustee
FROM: City of Omaha Public Facilities Corporation
Pursuant to Section 6.03 of the Indenture of Trust (the "Indenture") dated as of March 1,
2017 by and between the City of Omaha Public 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 from the Acquisition Fund:
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 and has not
been the basis of any previous disbursement.
4. A bill or bills or other evidence of each such obligation of the Corporation is
hereby attached.
Dated this day of , 20_•
CITY OF OMAHA
By
Name
Title
D-35
4811-5805-5232.1
3
ORDINANCE NO.
An Ordinance authorizing and approving a Lease Purchase Agreement (the
"Agreement") between the City of Omaha Public Facilities Corporation (the "Corporation")
and the City of Omaha, Nebraska (the "City"), a copy of which Agreement is attached hereto as
Exhibit A and incorporated herein by this reference, to provide funds for the lease-purchase of
certain real property rights in a upscale convention hotel facility (the "Project") constructed
adjacent to the City's convention center; authorizing and approving a Site Lease Agreement (the
"Site Lease") between the Corporation and the City for the leasing of the reversion right in and
to the Project of the City to the Corporation, a copy of which Site Lease is attached hereto as
Exhibit B and incorporated herein by this reference; approving an Indenture of Trust (the
"Indenture") between the Corporation and First National Bank of Omaha,as Trustee and Paying
Agent, 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 not to exceed $140,000,000
Lease Revenue Bonds (the "Bonds"), to be issued in one or more separate series as set forth in
the Indenture and the issuance and delivery thereof; delegating authority to the City's Finance
Director to determine the final price, interest rates, principal amount, tax status and redemption
provisions for the Bonds; and 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:
ARTICLE I
FINDINGS AND DETERMINATIONS
The Mayor and Council of the City of Omaha hereby find and determine:
(a) the City of Omaha Public Facilities Corporation, a nonprofit corporation
organized under Nebraska law (the "Corporation"), has been established for the purpose
of assisting the City of Omaha, Nebraska(the "City") in the (i) acquisition, construction,
furnishing and equipping of improvements and additions to public buildings and (ii)the
acquisition of equipment and vehicles for the benefit of the City; and
(b) the City intends that certain parcels of real estate owned by the City,
which are within the geographical boundaries of the City, constitute the sites of the
Project(collectively, the "Project Sites"). The Project Sites are currently encumbered by
two Site Lease Agreements dated as of April 24, 2002 (collectively, the "2002 Leases"),
by and between the City and City of Omaha Convention Hotel Corporation, a Nebraska
nonprofit corporation (the "Hotel Corporation"); and
(c) Under the 2002 Leases, the City maintains fee ownership of the Project
Sites and a reversion right to the improvements, including the upscale convention hotel
(the "Project") located on the Project Sites (the Project Sites together with the Project
shall be referred to herein as the "Property"); and
4823-6802-7711.3
Ordinance No.
Page 2
(d) the Corporation is willing to issue its lease revenue bonds, in one or more
series, in the aggregate principal amount of not to exceed $140,000,000 (the "Bonds") on
behalf of the City, the proceeds of which Bonds will be used, in part, to acquire the
Project and to lease rights in and to the Project to the City; and
(e) 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 (i) entering into the Site Lease Agreement (the "Site Lease"), whereby the
Corporation will lease certain rights in and to the Property from the City and (ii) entering
into a Lease-Purchase Agreement (the "Agreement") whereby the City will lease the
rights of the Corporation to the Property 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
(f) the Corporation is willing to enter into an Indenture of Trust (the
"Indenture") with First National Bank of Omaha, as trustee and paying agent (the
"Trustee"), setting forth the maturities, interest rates and other terms and conditions of
the Bonds, and providing for the application of the proceeds of the Bonds to the costs of
the Project; and
(g) 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 may qualify for exclusion from gross income of the holders for the
purpose of federal income taxation; and
(h) the Corporation has requested D.A. Davidson & Co. (the "Underwriter")
to underwrite the Bonds; and
(i) the City has determined that it is in its best interest that the Corporation
issue the Bonds and apply the proceeds thereof to (i) acquiring the certain interest in and
to the Property and that it is necessary for the City to enter into the Agreement, and the
Site Lease, approve the Indenture and satisfy certain requirements of federal income tax
law in order that the interest on the Bonds may be excluded from gross income of the
holders thereof for federal income tax purposes.
ARTICLE II
AUTHORIZATIONS AND APPROVALS
Section 2.1. The previous formation of the Corporation is hereby acknowledged,
approved and ratified by the City Council, and the Corporation is requested and 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 (i) acquiring certain interest in and to the Property, and
(ii) paying costs of issuance of the Bonds.
4823-6802-7711.3
Ordinance No.
Page 3
Section 2.2. 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
fillings-in of blanks as shall have been approved by the City officials executing the same
pursuant to this Section. The execution and delivery of the Agreement by such officials is
conclusive evidence of the approval of such officials of any such changes, insertions, omissions
or filling-in of blanks.
Section 2.3. The Site Lease is hereby authorized and approved, and the Mayor of the
City shall execute the Site 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. The execution and delivery of the Site
Lease by such officials is conclusive evidence of the approval of such officials of any such
changes, insertions, omissions or filling-in of blanks.
Section 2.4. The Indenture in substantially the form presented to the City Council and
attached hereto as Exhibit C, is hereby authorized and approved.
Section 2.5. Payment by the City of the lease-purchase rental amounts from time to time
respectively due under and pursuant to the Agreement is hereby authorized and directed.
Section 2.6. The City Finance Director (or the City Comptroller if the Finance Director
is unable for any reason to exercise such authority) is authorized and directed to approve on
behalf of the City, subject to the provisions of this Ordinance, the Corporation's designation and
establishment of the following terms in connection with each series of the Bonds: (1)the
aggregate principal amount of the Bonds to be issued, not exceeding the aggregate principal
amounts set forth in Article I, (2) the years in which a principal maturity of the Bonds shall occur
and the principal amount of the Bonds to mature in each of such years, maturing on such dates as
he or she may determine in each year, (3)the date of final maturity of the Bonds, which shall in
no event be later than thirty-five years from the date of issuance of the Bonds, (4)the date or
dates upon which the Bonds shall be sold, (5)the rate or rates of interest to be carried by each
maturity of each series of the Bonds, such that the true interest cost of the each series of Bonds
shall not exceed 6.00%per annum, (6)the first interest payment date for each series of the
Bonds, (7)the purchase price for each series of the Bonds, which shall be no less than 96.0% of
the principal amount thereof(including an underwriter discount of not to exceed 0.70%), (8) the
designation of such Bonds as taxable series or tax-exempt series, as may provide, in the best
judgment of the Finance Director or City Comptroller, optimal marketability of the Bonds under
then-prevailing market conditions, and (9) all other terms of the Bonds not otherwise determined
or fixed by the provisions of this Ordinance.
Section 2.7. The issuance and delivery by the Corporation of the Bonds is subject to
final written approval of the terms of the Bonds by the City Finance Director, as provided by
4823-6802-7711.3
Ordinance No.
Page 4
Section 2.6, in an Award Certificate delivered by the City and executed on the date of sale of the
Bonds (the "Award Certificate").
Section 2.8. 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 Site Lease and the
Indenture. 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 2.9. The City will accept delivery of full legal and unencumbered title to the
Property not later than the end of the term of the corresponding series of the Bonds, subject to
the 2002 Leases.
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.
[Signature Page to Follow]
4823-6802-771I.3
Ordinance No.
Page 5
INTRODUCED BY COUNCILMEMBER
APPROVED:
PASSED
MAYOR OF THE DATE
CITY OF OMAHA
ATTEST:
CITY CLERK OF THE CITY OF OMAHA DATE
(9OVED AS TO FORM:
ed,../g 11301)7
of 1,7 CITY ATTORNEY DATE
4823-6802-7711.3
Z
L
J
OV
CO 40
V ceu"
Z °J
M
O CO
U
g
CI
W
H
Z ch
LLI
5ra
ILI fa
CC
rena TO
CL = i.
aO �cd cz, 0
cl
bA Z •c 0 O 'Cj• a .4 44 CN.ueU 'N ue � 0 0cao 'OO ' ' ,� O0 +-
O-0 o co" +.. s. O. r.. .— ,•' c. 0 = y O O.. '
• g . o Q o � co o a�i a� 3 .c U E-" IL.o bs o .= A p„ c ``a'
.. 4, o
Z to c`u„ �,,= o o " �- O O �s -o �: 0 0 e 0
v) • 6)
U •�» to
cs > a� o +� a� c 0 4. c
o °' a� 3bo _ Cie = < aCtO oa) Ct C.) 0cn0w � a '>
?,a a � ed � on � ° os
U al
co O Z ° as � U ° � a -, = Qc•— U 0
Q a� tom, ;�' ai ° ' C4 > ° ^o -- a '� to _ = bq a�
O C V cl C ~ ' 5, a0i U ►0 ca -0 ° 0 -. aa) 4.)* cal 03 =
W
U
fin W
Z Z
1.4
It iit
1.4
O W CC
l2 0
Q 0 0
V o 0
J a a
CO n
m m
d a o a o
EXHIBIT A
CITY OF OMAHA PUBLIC FACILITIES CORPORATION,
as Lessor
to
CITY OF OMAHA,NEBRASKA,
as Lessee -
LEASEPURCHASE AGREEMENT
Dated as of March 1,2017
1
•
4820-8302-9056.1
1
Section 1. Term of Lease 1
Section 2. Rental Payments 1
Section 3. Place of Payment and Assignment of Rentals 2
Section 4. Repairs and Maintenance 3
Section 5. Insurance,Damage or Destruction 3
Section 6. Condemnation 4
Section 7. Indemnification of Corporation 4
Section 8. Corporation's Right of Inspection 4
Section 9. Alterations,Additions and Improvements; Further Development 4
Section 10. Use of Premises and Equipment 5
Section 11. [Tax Covenant 5
Section 12. Subletting 5
Section 13. No Right of Surrender 5
Section 14. Acquisition of the Project 5
Section 15. Termination of Interest 6
Section 16. Default 6
Section 17. Donations to City 6
Section 18. Financing 6
Section 19. Amendment of This Agreement 7
Section 20. Refund of Sales Tax 7
Section 21. Discrimination 7
Section 22. Authority of Parties 7
Section 23. Compliance With Laws 7
Section 24. Notices 7
Section 25. Waiver 7
Section 26. No Merger 8
Section 27. Benefit 8
Section 28. Section Captions 8
Section 29. Performance by City of Omaha Convention Hotel Corporation 8
SCHEDULE I SCHEDULE OF BASIC RENT PAYABLE BY THE CITY OF OMAHA,
NEBRASKA
APPENDIX A LEASEHOLD PROPERTY DESCRIPTION
4820-8302-9056.1
LEASEPURCHASE AGREEMENT
THIS LEASEPURCHASE AGREEMENT (the "Agreement") is made and entered into
as of March 1, 2017 by and between CITY OF OMAHA PUBLIC FACILITIES
CORPORATION, a Nebraska nonprofit corporation (the "Corporation"), as Lessor, and the
CITY OF OMAHA, NEBRASKA, a municipal corporation (the "City"), as.Lessee, and is an
amendment to the LeasePurchase Agreement by and between the Corporation and the City dated
as of December 1, 2006 (the "Original Agreement") within the meaning of Section 2.09 of the
Indenture of Trust between the Corporation and First National Bank of Omaha, as trustee, dated
as of December 1, 2006 (the"Original Indenture").
RECITALS:
The Corporation hereby leases to the City the property rights and interest to the real
property described at Appendix A hereto (the "Project"). All words and phrases defined in the
hereinafter defined Indenture shall have the same meanings for the purposes of this Agreement.
Section 1. Term of Lease. The term of this Agreement shall begin as of the date hereof and end
on February 1, 20_; unless sooner terminated or extended as hereinafter in Section 15 provided.
Section 2. Rental Payments.
(a) Basic Rent. The City shall pay to the Corporation in the form of cash, Basic Rent in the
amounts and on or before the dates shown on Schedule I, which is attached hereto and made a
part hereof by this reference. It is the intention of the Corporation and the City that the Basic
Rent herein specified shall be net to the 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 the City and that the Corporation shall
be indemnified by the City against all such costs, expenses and obligations. Such Basic Rent
shall be sufficient to pay, when due, the principal of and interest on the Bonds (as hereinafter
defined). In addition to Basic Rent, the 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. Such Rental Payments shall be and constitute those increases to the Basic Rent and
Additional Rent as payable by the City under the Original Agreement required by Section 2.09 of
the Original Indenture as a precondition to the issuance of Bonds of Other Series within the
meaning of the Original Indenture.
(b) Additional Rent. The City acknowledges:
(i) that under present law, the Project is subject to taxation and that the City shall pay such
taxes so that the Basic Rent will be net to the Corporation;
(ii) that to pay the costs of financing the Project, as provided in Section 14 hereof, the
Corporation will issue its Lease Revenue Bonds, Series 2017 (the "Bonds") in the aggregate
principal amount of$ , payable from the Basic Rent; that First National Bank of
3
4820-8302-9056.1
Omaha, as trustee ("Trustee"), will serve under the Indenture of Trust dated as of March 1, 2017
between the Trustee and the 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 or on behalf of City.
Accordingly, as between itself and the Corporation, the 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 the Corporation promptly forwarding to the City any notice,bill or other advice received by
the Corporation regarding any such taxes, assessments or charges (provided that any failure by
the Corporation so to forward any such notice,bill or other advice shall not release the City from
its obligation to pay hereunder);
(B) the fees and expenses of the Trustee under the Indenture governing the issuance of the
Bonds, with the City paying such fees and expenses as statements are rendered by the Trustee to
the City; and
(C) the expenses in connection with any audit or examination of the Corporation's records
requested by the City.
(c) Unconditional Obligation. The obligations of the City under this Agreement are general
obligations of the City payable from the City's General Fund each year of the term of this
Agreement on the same basis as operating expenses and other contractual obligations of the City.
This Agreement is an unconditional obligation of the City and is not subject to annual renewal.
(d) No Default. The City is not in default under the Original Agreement.
Section 3. Place of Payment and Assignment of Rentals. All Basic Rent shall be paid directly
to the Trustee for the benefit of the owner or owners of the Bonds issued by Corporation. The
Trustee is the assignee of all of the Corporation's rights to collect Basic Rent due hereunder, and,
as such assignee, the Trustee may enforce the Corporation's rights hereunder to collect and
receive Basic Rent.
The City shall have the right at its option, exercisable at any time, to prepay all or a
portion of the Basic Rent without prepayment penalty or premium. The City shall select and
shall provide written notice to the Trustee and the Corporation the Bonds to which any
prepayments shall be applied. To the extent such prepayments extinguish all Basic Rent
obligations of the City associated with the Bonds, this Agreement shall terminate. Such
prepayments shall be applied to redeem all or a portion of the Bonds identified by the City on
such Bond's first permitted redemption date, plus interest to accrue on such Bonds to said
4
4820-8302-9056.1
redemption date all as provided by the terms of the Indenture. In such event, the City shall
continue to pay the Trustee's fees and the Additional Rent as specified in Section 2(b) hereof
until the Bonds are fully paid
Section 4. Repairs and Maintenance. Throughout the term of this Agreement, the 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, mechanical and electrical, 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 the City shall be at least equal in quality and class to the
original work. The 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) The City shall obtain and keep in force during the term of this Agreement fire and
extended coverage insurance with respect to the Project in an amount at least equal to the full
insurable value of the Project. The term "full insurable value," as used herein, shall mean the
actual replacement value or, at the option of the City, any lesser amount which is equal to or
greater than the amount of the Bonds then outstanding. Such insurance shall name the City, the
Corporation and the Trustee as insureds as their interest may appear. So long as the City is not in
default hereunder, any loss shall be adjusted by and paid to the City. The City shall maintain
possession of the policies or certificates evidencing such insurance.
(b) Notwithstanding the foregoing, if the City shall insure properties similar to the Project by
self-insurance, the City may, at its option, insure the Project, in whole or in part, by means of an
adequate selfinsurance fund set aside and maintained out of its revenues.
(c) No damage to or destruction of any part of the Project, whether by fire or any other
casualty, shall entitle the 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 the City
shall elect not to replace or restore the Project and shall provide to the Trustee funds sufficient to
redeem a principal amount of the of Bonds equal to the ratio of the dollar amount of damage or
destruction award to the principal amount of the related Bonds then outstanding, plus accrued
interest to the redemption date.
(d) The City represents, warrants and covenants that it owns such real estate described in
Appendix A hereto in fee simple subject to those easements, covenants and restrictions of record,
including the Site Lease Agreements each dated as of April 24, 2002 by and between the City
and the City of Omaha Convention Hotel Corporation. The City warrants and will defend title to
such real estate against the lawful claims of all persons claiming the same or any part thereof
through,by or under the City.
5
4820-8302-9056.1
Section 6. Condemnation. If at any time during the term of this Agreement the whole or any
part of the 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 the City to pay the Rental Payments provided in
Section 2 hereof and to perform all of the other obligations of the City hereunder, and the 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 the Corporation and applied on the last
unpaid Basic Rent installment for the Project, unless the City shall elect to have all or a portion
of the Bonds relating to the Project redeemed in an amount equal to the ratio of the dollar amount
of the condemnation award to the principal amount of the Bonds then outstanding, as provided
by the Indenture.
Section 7. Indemnification of Corporation. The City shall indemnify the 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)the City's performance of, or the failure of the
City to perform, any obligation to be performed by the City hereunder; (b) any use or condition
of the Project or any part thereof or, in the case of the real estate portion thereof, any public
street, alley, sidewalk, curb, passageway or space within or adjacent thereto; (c) any personal
injury, including death resulting therefrom, or property damage occurring by operation or
casualty of or on or about the Project or, in the case of the real estate portion thereof, any
adjacent street, alley, sidewalk, curb, passageway or space; (d)the failure of the City to comply
with any requirement of any governmental authority; or (e) any construction lien or security
agreement filed against the Project or any part thereof.
Section 8. Corporation's Right of Inspection. The Corporation, its agents and representatives
shall have the right to access or enter upon the Project at any reasonable time for the purpose of
inspection.
Section 9. Alterations,Additions and Improvements; Further Development. The 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 the Corporation be obligated or
required to make any alterations, additions or improvements except as provided in Section 14
hereof.
Section 10. Use of Premises and Equipment. The Project shall be used by the City as an
upscale convention center hotel facility and other such uses as the 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 an upscale convention center hotel facility.
Section 11. [Tax Covenant. The City agrees that it shall not take any action, or permit any
action to be taken, or any condition to exist which causes or may cause the interest on the Bonds
to be or become includable in gross income of the recipients thereof for purposes of federal
income taxation under the Code].
6
4820-8302-9056.1
Section 12. Subletting. [Reserved]
Section 13. No Right of Surrender. The City shall have no right or privilege to surrender the
Project to the Corporation, and the City's abandonment of the Project or the City's failure or
inability to use the Project for any reason at any time shall not relieve the City of its obligation to
pay the Rental Payments required under Section 2 of this Agreement.
Section 14. Acquisition of the Project. The Corporation agrees that it has or will acquire the
Project, and that such project is suitable for the City's use as an upscale convention cent hotel
facility. The Corporation shall have no responsibility for the sufficiency of the Project or any
part thereof. The Corporation agrees to contribute toward the cost of acquiring, the Project such
proceeds of the sale of the Bonds as remain after the payment of expenses of issuing the Bonds.
[Such acquisition may take the form of the purchase of debt which is accompanied by certain
rights to the Project if such debt is not timely paid]. Promptly after execution of this Agreement,
the Corporation will deposit the net proceeds of the sale of the Bonds with Trustee to be
disbursed in payment of costs of acquiring the Project.
A leasehold interest in and to the Project, including any and all buildings, equipment,
improvements and other property, shall vest in the Corporation as such property becomes a part
of the Project, and the Corporation shall continue to have such interest therein until City has
satisfied all of its obligations to the Corporation under this Agreement and the Project is
conveyed to the City.
Upon the completion of the acquisition 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 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 financing or refinancing the
Project in excess of the net proceeds of the sale of the Bonds and other moneys provided by the
City to the Corporation in respect of the Project.
The 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, fee simple title to the real property described in Appendix A not
being vested in City, or any defect in or lien or encumbrance on the City's title to such real
property), in the acquisition or operation of the Project or any part thereof, shall entitle the 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.
The 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
performance, refunds or other adjustments shall be applied toward the costs of the acquisition or
repair of the Project.
The Corporation agrees to cooperate with the City if the City should request that the
Corporation issue its refunding, additional or completion bonds and apply the proceeds thereof to
the redemption of the Bonds or Bonds of Other Series in whole or in part or to additions to or the
7
4820-8302-9056.1
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 refunding, additional or
completion bonds and related costs and expense.
Section 15. Termination of Interest. Upon the City having paid all of the Rental Payments
and moneys due the Corporation hereunder and the termination of this Agreement, the
Corporation's interest in the Project pursuant to the Lease shall terminate, and the City shall have
full and unencumbered title to the real property and all improvements thereon and all personal
property, free and clear of such interest.
The Corporation further covenants and agrees that, after termination of this Agreement,
the Corporation will donate to the City any Bond proceeds or other moneys provided to the
Corporation by the City in respect of the Project and remaining with the Corporation after paying
all of its debts and obligations in respect of the Project.
Section 16. 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_ 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 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, the
Basic Rent on the dates and in the amounts shown in Schedule I attached hereto. Such remedy
shall not be an exclusive remedy.
Section 17. Donations to City. City may receive and accept donations from any person, firm,
corporation or governmental body to assist in the refinancing, acquisition, construction,
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 refinancing, acquiring, constructing,
improving and equipping the Project.
Section 18. Financing. City consents to and approves of the issuance by Corporation of the
Bonds in the aggregate principal amount of $ , dated the original delivery date
thereof, on the terms and conditions specified in the Indenture. [City covenants and agrees for
the benefit of Corporation and the holders of the Bonds that City shall comply with all necessary
restrictions of the Internal Revenue Code of 1986, as amended, and the Regulations thereunder to
preserve the exclusion of interest on the Bonds from gross income for purposes of federal
income taxation]. City has undertaken to provide ongoing disclosure for the benefit of
Bondholders pursuant to Section(b)(5)(i) of Securities and Exchange Commission Rule 15c212
under the Securities Exchange Act of 1934, as amended (17 C.F.R., § 240.15c212), in that
certain Letter Agreement to be dated the date of original delivery of the Bonds between City and
Trustee.
Section 19. 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.
8
4820-8302-9056.1
Section 20. 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. City
agrees that any refund or rebate of sales or use taxes which it receives, including amounts
remitted by Corporation pursuant to this Section 20, will be used to pay costs of acquiring the
Project.
Section 21. Discrimination. Any contractor shall not, in performance of a contract with City
associated with the Project, 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 22. 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 23. Compliance With Laws. Corporation shall comply with all applicable laws,
ordinances,rules and regulations in connection with the acquisition or refinancing of the Project.
Section 24. 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 City of Omaha Planning Department, 1819 Farnam Street,
Suite 1100, Omaha, Nebraska 68183, Attention: Planning Director and to City at Suite 1000,
1819 Farnam Street, Omaha, Nebraska 68183, Attention: Finance Director, 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 25. 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.
Section 26. No Merger. Neither this Agreement, the Lease nor any provisions hereof or thereof
shall be construed to effect a merger of the leasehold interest of City to the Project sites and
City's leasehold interest herein.
Section 27. Benefit. This Agreement shall be binding upon and shall inure to the benefit of the
parties and their successors or assigns.
Section 28. 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.
Section 29. Performance by City of Omaha Convention Hotel Corporation. The parties
hereby acknowledge and accept that the City may meet any and all of its obligations under this
9
4820-8302-9056.1
Agreement regarding the care, insurance and maintenance of the Project by and through the
actions of the City of Omaha Convention Hotel Corporation.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
10
4820-8302-9056.1
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 PUBLIC FACILITIES
CORPORATION
ATTEST:
By
President
Secretary/Treasurer
•
[Corporation Signature Page to Lease Purchase Agreement]
11
4820-8302-9056.1
•
[SEAL] CITY OF OMAHA,NEBRASKA
ATTEST:
By
Mayor
City Clerk
APPROVED AS TO FORM:
City Attorney
[City Signature Page to Lease Purchase Agreement]
12
4820-8302-9056.1 •
SCHEDULE I
SCHEDULE OF BASIC RENT
PAYABLE BY THE CITY OF OMAHA,NEBRASKA
$
CITY OF OMAHA PUBLIC FACILITIES CORPORATION
LEASE REVENUE BONDS
Series 2017
Period Annual Debt
Ending Principal Coupon Interest Debt Service Service
I-13
4820-8302-9056.1
EXHIBIT B
CITY OF OMAHA,NEBRASKA,
as Lessor
to
CITY OF OMAHA PUBLIC FACILITIES CORPORATION,
as Lessee
SITE LEASE AGREEMENT
Dated as of March 1, 2017
4845-1454-5728.1
SITE LEASE AGREEMENT
THIS SITE LEASE AGREEMENT (the "Site Lease") is made and entered into as of
March 1, 2017 by and between the CITY OF OMAHA, NEBRASKA, a municipal corporation
(the "City"), as lessor, and CITY OF OMAHA PUBLIC FACILITIES CORPORATION, a
Nebraska nonprofit corporation (the "Corporation"), as lessee.
RECITALS:
The City, in consideration of the covenants of the Corporation hereinafter set forth, does
by these presents lease to the Corporation its interest in the parcels of ground and buildings or
improvements now situated thereupon (the "Leased Hotel Real Estate"), located in the City of
Omaha, Nebraska, more specifically described at Appendix A hereto. The City represents,
warrants and covenants that it owns the Leased Hotel Real Estate described at Appendix A
hereto in fee simple, that such Real Estate is free from encumbrances, except those easements,
covenants and restrictions of record, and except the Site Lease Agreements each dated as of
April 24, 2002 by and between the City and the City of Omaha Convention Hotel Corporation,
pursuant to which the City maintains a reversion right to the improvements, including the
upscale convention hotel located on the Leased Hotel Real Estate, and that the City warrants and
will defend title to such Leased Hotel Real Estate against the lawful claims of all persons
claiming the same or any part thereof through, by or under the City.
TO HAVE AND TO HOLD the same unto Corporation from, on and after the date hereof
to and including the earlier of (i)February 1, 20_ or (ii)the termination dates of that certain
LeasePurchase Agreement dated as of March 1, 2017 by and between the Corporation, as lessor,
and City, as lessee, the City warrants to Corporation the reversion right to the improvements
located on the Leased Hotel Real Estate(the"Property Right") for and during the term hereof.
Corporation, in consideration of the leasing of the Property Right as above set forth, has
agreed with the City to pay the City as rent for the use of the same the sum of Ten Dollars
($10.00) per year, which rent has been paid by the Corporation for the entire term, the receipt
and sufficiency of which are hereby acknowledged by the City.
The Corporation further covenants with the City that, at the expiration of the term of this
Site Lease, the Corporation shall release back to the City the Property Right in and to the Leased
Hotel Real Estate, together with any buildings or improvements now or hereafter situated
thereupon during the lease term,without further action or demand.
It is further covenanted and agreed between the parties hereto that Leased Hotel Real
Estate shall be used only in connection with the provision of an upscale convention center hotel
facility, and functions incidental thereto.
The covenants herein shall extend to and be binding upon the successors and assigns of
the parties to this Site Lease.
[Signature Page to Follow]
2
4845-1454-5728.1
IN WITNESS WHEREOF, the parties hereto have caused this Site Lease Agreement to
be executed by their duly authorized officers as of the day and year first written above.
[SEAL] CITY OF OMAHA,NEBRASKA
By
ATTEST: Mayor
By
City Clerk
APPROVED AS TO FORM:
By
City Attorney
[City Signature Page to Site Lease Agreement]
3
4845-1454-5728.1
[SEAL] CITY OF OMAHA PUBLIC FACILITIES
CORPORATION
By
ATTEST: President
By
Secretary/Treasurer
[Corporation Signature Page to Site Lease Agreement]
4
4845-1454-5728.1
EXHIBIT C
INDENTURE OF TRUST
between
CITY OF OMAHA PUBLIC FACILITIES CORPORATION
and
FIRST NATIONAL BANK OF OMAHA,
as Trustee
Dated as of March 1,2017
4811-5805-5232.1
ARTICLE I
DEFINITIONS 6
ARTICLE II
ISSUANCE AND EXECUTION OF BONDS
Section 2.01. Issuance of Bonds 8
Section 2.02. Terms, Medium and Place of Payment 8
Section 2.03. Execution 10
Section 2.04. Form of Bonds 10
Section 2.05. Certificate of Authentication 10
Section 2.06. Authorization and Delivery 10
Section 2.07. Mutilated,Lost, Stolen or Destroyed Bonds 10
Section 2.08. Registration and Transfer of Bonds 10
Section 2.09. Additional Bonds 11
Section 2.10. Refunding Bonds 12
Section 2.11. Temporary Bonds 12
Section 2.12. BookEntryOnly Bonds 12
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
Section 3.01. Bonds Redeemable 15
Section 3.02. Optional Redemption 15
Section 3.03. Sinking Fund Redemption 15
Section 3.04. Extraordinary Optional Redemption 16
Section 3.05. Notice of Redemption 16
Section 3.06. Cancellation of Bonds 17
ARTICLE IV
GENERAL COVENANTS
Section 4.01. Payment of Bonds 17
Section 4.02. Books and Records; Annual Accounting 17
Section 4.03. Trustee Enforcement of Agreement 17
Section 4.04. Bonds of Other Series; Parity Bonds 18
Section 4.05. Corporate Existence 18
Section 4.06. Arbitrage,Tax Covenants 18
Section 4.07. Special Representations and Warranties 19
Section 4.08. Development Restriction 20
ARTICLE V
BOND FUND
Section 5.01. Bonds Secured by Basic Rent Payments 21
Section 5.02. Creation of Bond Fund 21
Section 5.03. Deposits to Bond Fund 21
Section 5.04. Use of Moneys in Bond Fund 21
2
4811-5805-5232.1
Section 5.05. Custody of Bond Fund; Withdrawals 21
Section 5.06. Unclaimed Moneys 21
Section 5.07. Additional Rent 21
ARTICLE VI
ACQUISITION FUND,REDEMPTION ESCROW FUND, AND COST OF ISSUANCE FUND
Section 6.01. Creation of Acquisition Fund 22
Section 6.02. Use of Moneys in Acquisition Fund 22
Section 6.03. Requisitions 22
Section 6.04. Creation of Redemption Escrow Fund 22
Section 6.05. Use of Moneys in Redemption Escrow Fund 22
Section 6.06. Creation of Cost of Issuance Fund 22
Section 6.07. Use of Moneys in Cost of Issuance Fund 23
ARTICLE VII
INVESTMENTS 23
ARTICLE VIII
DISCHARGE OF LIEN AND DEFEASANCE 23
ARTICLE IX
DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND BONDHOLDERS
Section 9.01. Events of Default 25
Section 9.02. Acceleration 25
Section 9.03. Other Remedies 26
Section 9.04. Limitation on Bondholders' Right To Institute Proceedings 26
Section 9.05. Possession of Bonds Not Required for Enforcement 26
Section 9.06. Waiver 26
Section 9.07. Application of Moneys 26
Section 9.08. Restoration to Former Position 28
Section 9.09. Bondholders' Right To Direct Proceedings 28
ARTICLE X
THE TRUSTEE
Section 10.01. Acceptance of Trusts 28
Section 10.02. Limitations on Liability 29
Section 10.03. Dealings in Bonds 29
Section 10.04. Compensation 29
ARTICLE XI
AMENDMENT OF INDENTURE
• Section 11.01. Supplemental Indentures Not Requiring Consent of Bondholders 29
Section 11.02. Supplemental Indentures Requiring Consent of Bondholders 29
Section 11.03. Consent of Trustee Required 30
3
4811-5805-5232.1
ARTICLE XII
AMENDMENT OF THE LEASE AGREEMENT
Section 12.01. Amendment of Agreement Not Requiring Consent of Bondholders 30
Section 12.02. Amendment of Agreement Requiring Consent of Bondholders 31
Section 12.03. Consent of Trustee Required 31
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Execution of Instruments; Proof of Ownership 31
Section 13.02. Counterparts 31
Section 13.03. No Personal Liability of Corporation Officials;Limited Liability of
Corporation to Bondholders 32
Section 13.04. Severability 32
EXHIBIT A FORM OF BOND
EXHIBIT B FORM OF REQUISITION
4
4811-5805-5232.1
INDENTURE OF TRUST
THIS INDENTURE OF TRUST is made and entered into as of March 1, 2017 by and
between CITY OF OMAHA PUBLIC 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"), and is a supplemental indenture
within the meaning of Section 2.09 of the Indenture of Trust between Corporation and Trustee
dated as of December 1,2006(the"Original Indenture").
RECITALS:
WHEREAS, Corporation, as lessor,has entered into a LeasePurchase Agreement dated as
of March 1, 2017 (the "Agreement" which Agreement is an amendment to the Original
Agreement within the meaning of Section 2.09 of the Original Indenture) with the City of
Omaha, Nebraska ("City"), as lessee, under which Corporation has leased to City certain real
property interests in and to an upscale convention center hotel facility and related improvements
(the "Project"); and
WHEREAS, in order to obtain the principal portion of the funds for the acquisition and
equipping of the Project, it is necessary for Corporation to issue its lease revenue bonds in one or
more series in the aggregate principal amount of $ (the "Bonds"). The Bonds as
issued hereunder are"Bonds of Other Series"within the meaning of the Original Indenture; and
WHEREAS, the Bonds are secured by a pledge of the Basic Rent (as hereinafter defined)
to become due under the Agreement, and the Trustee has agreed to act as Trustee under this
Indenture of Trust (this "Indenture") for the benefit of the owner or owners of the Bonds issued
as hereinafter provided; and
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 $10 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, 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 Basic Rent received by Corporation from City under. the Agreement, such
5
4811-5805-5232.1
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 (which additional security shall not include the amounts, if
any, on deposit in,the Rebate Fund)by Corporation or by anyone in its behalf(or with its written
consent) to Trustee [to and including bonds purchased by the Corporation with the proceeds of
the Bonds, the receipt of payment on such bonds which shall be pledged hereunder], 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 (net of Additional Rent) due under
the Agreement, are to be dealt with and disposed of under, upon and subject to the terms,
conditions, trusts, uses and 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.
6
4811-5805-5232.1
"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 purposes specified in Article VI of this Indenture.
"Additional Rent" means the amounts City is required by the Agreement to pay with
respect to the Project, in addition to the Basic Rent.
"Basic Rent"means the amounts City is required by the Agreement to pay to Corporation
as rent for the Project.
"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 Bonds.
"Bonds of Other Series"means bonds issued hereunder other than the Bonds.
"Bond Year" means the period of time, beginning on February 1 of each calendar year
and ending on January 31 of the immediately succeeding calendar year except that the first Bond
Year shall commence on the delivery date of the Bonds and end on February 1, 2018.
["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].
"Lease" means the Site Lease Agreement dated as of March 1, 2017 by and between the
City, as lessor, and the Corporation, as lessee,together with any amendments thereto.
"Original Agreement" means the LeasePurchase Agreement by and between Corporation
and City, dated as of December 1, 2006, as subsequently supplemented.
"Original Indenture" means the Indenture of Trust by and between Corporation and
Trustee dated as of December 1, 2006, as subsequently supplemented.
"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
"Parity Bonds" means, collectively, each issue of bonds heretofore issued under the
Original Indenture.
"Person" includes natural persons, firms, associations, corporations and public bodies.
7
4811-5805-5232.1
"Record Date"means January 15 and July 15 of each year.
"Rental Payments"means, collectively, the Basic Rent and the Additional Rent.
"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.
ARTICLE II
ISSUANCE AND EXECUTION OF BONDS
Section II.1. Issuance of Bonds. The Bonds in series in the aggregate principal amount
of$ 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 as provided herein.
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 the City to the
Corporation under the Agreement.
Section II.2. Terms, Medium and Place of Payment. The Bonds shall be issued in four series
as fully registered bonds, without coupons, in the denomination of $5,000 or any integral
multiple thereof. The Bonds of each series shall be designated "R-1", and 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 Bonds shall
be dated their date of delivery and shall become due and payable on the maturity date and in the
years set forth below and shall bear interest at the rates per annum as shown below:
Type Maturity Date Principal Interest Type Maturity Date Principal Interest
(February 1) Amount Rate (February 1) Amount Rate
The Bonds shall bear interest from their date of delivery and shall be payable
semiannually on February 1 and August 1 of each year, starting August 1, 2017.
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.
8
4811-5805-5232.1
Payment of interest on the Bonds shall be made to the registered owners thereof and shall be paid
(i)by check or draft mailed to each registered owner at its address as it appears on the
registration books of Corporation on the respective 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
owners of$1,000,000 or more in aggregate principal amount of the Bonds upon written notice by
the registered owners given to Trustee not later than the close of business on the respective
Record Date.
Section II.3. 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 II.4. 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 II.5. 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
Bonds 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 Bonds have been authenticated under this Indenture.
Section II.6. 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 aggregate purchase price thereof together with accrued interest, if any, to the date
of payment and delivery of the Bonds.
Section II.7. 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, new Bonds of like date, number,
maturity, series and tenor in exchange and substitution therefor, and upon cancellation of such
mutilated Bonds, or in lieu of and in substitution for such lost Bonds,upon the owner paying the
reasonable expenses and charges of Corporation and Trustee in connection therewith, and, in
case of Bonds destroyed or lost, the owner filing with Trustee evidence satisfactory to it that
such Bonds were destroyed or lost, and furnishing Corporation and Trustee with indemnity
satisfactory to them.
Section II.8. 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.
9
4811-5805-5232.1
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 and series 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 respective Record Date and
ending at the close of business on the business day next preceding any interest 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.
Section II.9. Additional Bonds. Additional series of bonds having status and rank equal to the
Bonds and the Parity Bonds may be issued from time to time under the terms of the Original
Indenture (including for the purposes of this Section 2.09 and Section 2.10 hereof, 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:
(a) Corporation is not in default under the Original Indenture;
(b) City is not in default under the Original Agreement (including for the purposes of this
Section 2.09 and Section 2.10 hereof, the Agreement);
(c) Corporation and City shall, prior to the issuance of such Bonds of Other Series, have
entered into an amendment to the Original 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 the outstanding Parity Bonds, the 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 Rent the fees and expenses
of Trustee with respect to the Bonds of Other Series;
10
4811-5805-5232.1
(d) 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 the Parity Bonds; and
(e) the issuance of such Bonds of Other Series shall have been approved by City.
Nothing herein contained shall prevent Corporation, at the request of City, in its sole
discretion, from authorizing the issuance of bonds which are secured by lease rental payments of
City on a basis junior or inferior to the Rental Payments to be made into the Bond Fund for the
payment of Bonds issued hereunder, either before or after the issuance of such junior lien bonds.
Section II.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:
(a) Corporation is not in default under the Original Indenture, or the default will be cured
immediately after issuance of the refunding bonds;
(b) City is not in default under the Original Agreement;
(c) Basic Rent payable by City under the Original Agreement shall be sufficient to pay,when
due, the principal of and interest on all Bonds and Parity Bonds to be outstanding, including the
refunding bonds;
(d) the issuance of the refunding bonds shall in no manner adversely affect the exclusion
from gross income of the interest on the Bonds or Parity Bonds for federal income tax purposes
(as applicable);
(e) 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
(f) 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 II.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, typewritten, 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 II.12. BookEntryOnly Bonds.
11
4811-5805-5232.1
(a) The Bonds shall initially be issued in bookentry form. The Depository Trust Company,
New York,New York(the "Depository") is hereby appointed the Depository for the Bonds. The
Blanket Issuer Representations Letter incorporated herein by this reference, dated as of June 2,
2005 and signed by Corporation and the Depository, is hereby confirmed. The ownership of one
fully registered Bond for each maturity of each series 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 sameday 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
brokerdealer, 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
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
12
4811-5805-5232.1
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 tenns 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:
(i) any successor securities depository or its nominee;
(ii) 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 bookentry 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 III.1. Bonds Redeemable. The Bonds are noncallable for redemption except pursuant
to Sections 3.02, 3.03 and 3.04 hereof.
Section I1I.2. Optional Redemption. The Bonds maturing February 1, 20_and thereafter are
subject to redemption at the option of Corporation from any source, in whole or in part at any
time, in such order of maturities as determined by Corporation (and by lot or other random
selection method within a maturity) on or after February 1, 20_at the redemption price of 100%
of the principal amount to be redeemed plus accrued interest to the date of redemption.
13
4811-5805-5232.1
Section III.3. Sinking Fund Redemption. The Bonds maturing on February 1 in the years
20_, 20 , and 20_, are subject to mandatory sinking fund redemption from Basic Rent
sinking fund payments prior to their respective maturity dates, by lot (or other random selection
method) selected by Trustee, at a price of par without premium in the years and principal
amounts set forth below:
Years of Redemption Principal Required Years of Redemption Principal Required
(February 1) to be Redeemed (February 1) to be Redeemed
To the extent that the Bonds have been previously called for redemption in part and
otherwise than from the sinking fund, each related aforesaid annual sinking fund payment for the
Bonds of such maturity shall be reduced by the amount obtained by multiplying the principal
amount of such Bonds of such maturity so called for redemption,by the ratio which each annual
sinking fund payment for the Bonds of such maturity and series bears to the total sinking fund
payments of such Bonds subject to sinking fund redemption, and by rounding each sinking fund
payment to the nearest$5,000 multiple.
In case a Bond subject to sinking fund redemption is of a denomination larger than
$5,000, a portion of such. Bond ($5,000 or any multiple thereof) may be redeemed, but Bonds
shall be redeemed only in the principal amount of$5,000 each or any integral multiple thereof.
On or before the thirtieth day prior to each such sinking fund payment date, Trustee shall
proceed to select for redemption (by lot in such manner, as Trustee may determine), from all
Outstanding Bonds subject to sinking fund redemption, a principal amount of such Bonds equal
to the aggregate principal amount of such Bonds redeemable with the required sinking fund
payment, and shall call such Bonds or portions thereof($5,000 or any integral multiple thereof)
for redemption from such sinking fund on the next sinking fund redemption date,and give notice
of such call.
Section III.4. Extraordinary Optional Redemption. The Bonds are subject to redemption at
any time in whole or in part in the event of damage to or destruction of the 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 Project. Any such redemption
shall be at the principal amount of the Bonds equal to the ratio of the dollar amount of such
damage, destruction or condemnation award to the principal amount of the Bonds then
Outstanding,plus accrued interest to the redemption date.
Section III.5. 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
bookentryonly 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 at the address shown on the registration books of the Corporation
kept by the Trustee at the address shown on the registration books of the Corporation kept by the
Trustee not less than 30 days prior to the date fixed for redemption. Any such notice may
provide that the call for redemption on the date specified by such notice is made conditional on
the deposit with Trustee of moneys in an amount equal to the stated redemption price on or
14
4811-5805-5232.1
before such date. 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. 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 III.6. 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 IV.1. Payment of Bonds. Corporation covenants that it will promptly pay the principal
of and interest on the Bonds 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 IV.2. 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 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 IV.3. 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 IV.4. Bonds of Other Series; Parity Bonds.
(a) In satisfaction of the requirements established by Article II of the Original Indenture for
the Bonds to be "Bonds of Other Series", secured on a parity with the Parity Bonds, the
Corporation covenants that (1)it is not in default under the Original Indenture, (2)the City has
15
4811-5805-5232.1
covenanted in the Agreement that it is not in default under the Original Agreement, (3) the City
has approved the issuance of the Bonds, (4)the Agreement amends the Original Agreement to
increase the Basic Rent and Additional Rent (as defined thereby) as contemplated by and
otherwise in accordance with Section 2.09(c) and Section 2.10(c) of the Original Indenture, and
(5)the Bonds are designated by a name indicating that the Bonds are of a different series than the
Parity Bonds.
(b) Corporation covenants that, so long as any of the Bonds are Outstanding, it will not issue
other bonds or notes payable from the Basic Rent due under the Agreement except as permitted
in Article II of the Original Indenture and Article II of this Indenture, and in any event not
without the specific consent to such issuance given by City.
Section IV.5. Corporate Existence. Corporation covenants to maintain its corporate existence
as a nonprofit corporation under the laws of the State of Nebraska, provided that Corporation at
the request and direction of City may merge into or have merged into it one or more nonprofit
public benefit corporations incorporated under the laws of the State of Nebraska for the stated
corporate purpose of assisting City with the acquisition and construction of real and personal
public property and equipment.
Section IV.6. [Arbitrage, Tax Covenants]. (a) 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 Code. 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 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.
(b) 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 applicable regulations. Not
later than 60 days after the final retirement of the Bonds, Corporation shall pay 100% of the
16
4811-5805-5232.1
amount required to be paid pursuant to Section 148(f) of the Code and the applicable regulations.
Each payment shall be filed with the Internal Revenue Service Center, Ogden, Utah 84201. Each
payment shall be accompanied by a copy of the Form 8038T and a statement summarizing the
determination of the amounts paid and to be paid to the United States.
ARTICLE V
BOND FUND
Section V.1. 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, the Parity Bonds and Bonds of Other Series issued as permitted by
Article II.
Section V.2. Creation of Bond Fund. There is hereby created by Corporation and ordered
established with Trustee a trust fund to be designated "2017 Bond Fund", which shall be used to
pay the interest on and principal of the Bonds.
Section V.3. Deposits to Bond Fund. There shall be deposited in the Bond Fund(i) all accrued
interest received, if any, at the time of the issuance, sale and delivery of the Bonds, (ii) all Basic
Rent payments, as and when received, made under the Agreement and (iii)unless otherwise
specified herein, 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 V.4. 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 such Bonds at or prior to
maturity.
Section V.5. 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.
Section V.6. 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.
17
4811-5805-5232.1
Section V.7. Additional Rent. It is understood and agreed that, pursuant to the provisions of
the Agreement, the City agrees to pay costs and expenses as Additional Rent (as that term is
defined in the Agreement), including (i) on the delivery date of the Bonds, the amount required
in addition to the Refunding Bond proceeds deposited in the Redemption Escrow Fund to equal
the Redemption Price of the Refunded Bonds, and(ii)the fees and expenses of Trustee.
ARTICLE VI
ACQUISITION FUND,REDEMPTION ESCROW FUND, AND COST OF ISSUANCE
FUND
Section VI.1. 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 of the
Bonds (excluding accrued interest, if any) in the amount of$ shall be deposited into
the Acquisition Fund. The remaining proceeds of the Bonds shall be deposited in the Costs of
Issuance Fund.
Section VI.2. Use of Moneys in Acquisition Fund. Moneys in the Acquisition Fund shall be
disbursed to the payment of, or to the reimbursement of City for payment of, the costs of the
Project.
Section VI.3. Requisitions. Trustee shall disburse funds in payment of expenses permissible
under Section 6.02 upon receipt of requisitions signed by the President or Secretary of
Corporation, or by the Finance Director of the City of Omaha or the City Comptroller of the City
of Omaha, in each case acting on behalf of Corporation. 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 the Project's costs.
Section VI.4. Creation of Cost of Issuance Fund. A special fund is hereby created with
Trustee to be designated "Cost of Issuance Fund." Upon the issuance and sale of the Bonds, the
proceeds of the Bonds in the amount of$ shall be deposited into the Cost of Issuance
Fund.
Section VI.5. Use of Moneys in Cost of.Issuance Fund. Moneys in the Cost of Issuance Fund
shall be disbursed to the pay the expenses of issuing and selling the Bonds, including printing,
legal and financial expenses. Trustee shall disburse moneys from the Cost of Issuance Fund
without further direction by the Corporation or the City. Any such funds not applied to the
payment of the cost of issuing the Bonds within six months of the delivery date of the Bonds
shall be transferred to the Bond Fund.
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 Section 14-563, Reissue Revised Statutes of Nebraska, as amended, viz. securities
of the United States of America, the State of Nebraska, the City, Douglas County, Nebraska, a
18
4811-5805-5232.1
school district of the City, municipally owned and operated public utility property and plants of
the City, or in the same manner as funds of the State of Nebraska are invested, 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 United States
Government Obligations. 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.
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:
(a) a Bond is cancelled whether by reason of payment or redemption prior to maturity;
(b) a Bond is surrendered to Trustee for cancellation;
(c) 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
19
4811-5805-5232.1
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:
(i) such Bond has been irrevocably called or designated for redemption on the first date
thereafter on which such Bonds may be redeemed in accordance with the provisions of
Article III of this Indenture; and
(ii) 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;
(d) 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
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
20
4811-5805-5232.1
Section IX.1. 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:"
(a) 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;
(b) 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
(c) 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.
Section IX.2. 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 IX.3. 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.
21
4811-5805-5232.1
Section IX.4. 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 outstanding hereunder 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 Bonds at or after the maturity thereof to reduce the same to judgment.
Section IX.5. 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 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 IX.6. 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 IX.7. 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:
(a) 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:
(i) 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;
(ii) 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
22
4811-5805-5232.1
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
(iii) 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;
(b) 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 such 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 Bonds over any other Bonds, ratably, according to the amounts due respectively for
principal and interest, to the persons entitled thereto without any discrimination or preference;
and
(c) 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 (b) of this Section, in the
event that the principal of all of such 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 (a) 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 Bonds until such
Bonds shall be, surrendered to Trustee for appropriate endorsement, or for cancellation if fully
paid.
Section IX.8. 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
23
4811-5805-5232.1
positions and rights hereunder, respectively, and all rights, remedies, powers and duties of
Trustee shall continue as though no proceeding had been taken.
Section IX.9. Bondholders' Right To Direct Proceedings. Anything in this Indenture to the
contrary notwithstanding, the owners of a majority in principal amount of the Bonds 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 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 X.1. 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 firstclass 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 X.2. 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 X.3. 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 X.4. 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
24
4811-5805-5232.1
and performance of said powers and duties, all of which under the Agreement are to be paid to
Trustee by City.
ARTICLE XI
AMENDMENT OF INDENTURE
Section XI.1. 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 Bonds of Other Series in
accordance with the provisions of Article II of the Original Indenture and 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 XI.2. Supplemental Indentures Requiring Consent of Bondholders. With the
consent of the owners of not less than twothirds of the Bonds outstanding hereunder,
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 Bonds 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 twothirds in aggregate principal amount of the Bonds
outstanding hereunder 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.
25
4811-5805-5232.1
If Trustee and Corporation shall so determine, new Bonds conforming to the amendment
shall be executed and delivered in exchange for Bonds outstanding hereunder 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 XI.3. 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 THE LEASE AGREEMENT
Section XII.1. 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(i)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, or (ii) 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 the Original Indenture and this Indenture.
Section XII.2. 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 twothirds in principal amount of all the Bonds Outstanding; provided,however, that in
no event shall the Agreement be amended to reduce the Basic Rent payable by City or extend the
stated date when such Basic Rent shall be due with respect to the Bonds or Bonds of Other
Series,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 XII.3. Consent of Trustee Required. No amendment, change or modification to the
Agreement shall be made without the written consent of Trustee.
ARTICLE XIII
MISCELLANEOUS
Section XIII.1. 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
26
4811-5805-5232.1
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:
(a) 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;
(b) the fact of the holding of a Bond by any holder and the amount and numbers or other
descriptive details of such Bond and the date of its 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 Bonds 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 XIII.2. 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 XIII.3. 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.
Except for the payment when due of the payments and the observance and performance
of the other agreements, conditions, covenants and teens 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.
Section XIII.4. 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
27
4811-5805-5232.l
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
[Signature Page to Follow]
28
4811-5805-5232.1
IN WITNESS WHEREOF, City of Omaha Public 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 March 1, 2017.
•
[SEAL] CITY OF OMAHA PUBLIC FACILITIES
CORPORATION
By
President
By
Secretary/Treasurer
[Corporation Signature Page to Trust Indenture]
29
4811-5805-5232.1
az;c.e
No.
Amendment of the Whole requested by the
Finance Department.
5/V
RECEIVED
Presented to Council:
January 31, 2017 - Passed as amended 4 0
Buster Brown
City Clerk
"NOTICE TO PUBLIC" THE DAILY RECORD
The following Hearing on
been set for OF OMAHA
City Council Hearing on January 24,2017,
at 2:00 p.m.:
An Ordinance authorizing and approving a LYNDA K.HENNINGSEN, Publisher
a between the City of Omaha
Lease Purchase Agreement (the
"Agreement') PROOF OF PUBLICATION
Public Facilities Corporation th
"Corporation") and the City of Om
Nebraska (the "City"), a copy of which
Agreement
attached hereto as
dncoporated herein by this reference, UNITED STATES OF AMERICA,
provide funds for the lease-purchase of The State of Nebraska, gg,
certain real property rights in a upscale
District of Nebraska,
convention hotel facilityh (the "Project") County of Douglas,
constructed; adjacentizingto the City'ppo conventionS
center; authorizing and approving a Site
Lease Agreement(the"Site Lease")between City of Omaha,
the Corporation and the City for the leasing J.$OYD
of the reversion right in and to the Project of
the City to the Corporation, a copy
of which Site Lease is attached hereto as Exhibit B and incorporated herein by this reference;
deposes and says that she is
being duly sworn, p
approving an Indenture of Trust (the"Indenture") between the Corporation and LEGAL EDITOR
First National Bank of Omaha,as Trustee and p printed and
Paying Agent, a copy of which Indenture is
attached hereto as Exhibit C and incorporated of THE DAILY RECORD, of Omaha, a legal nVg newspaper,
fide paid
and conditionsn by this reference;appo atio the or to published daily in the English language, I`de p id
exc $140,000,000 ofthe Lease Revenue
not to
ea as h t e In Bonds Omaha,in aidC County of Douglas,for County in cess of 300 copies,more than fifty-two weeks last
(the"Bonds"), to be issued in one or more
separateand
seriess nc set andorth in ver Indenture that the printed notice hereto attached was published in TIIE
and the issuance delivery thereof; past;
delegating authority to the City's Finance
Director to determine the final price,interest DAILY RECORD,of Omaha,on
rates, i principal amount,
for the Bonds; and January 13,
sa tax status and
tisfying
p
requir mis applicable federal
income
effectve
requirements and approving
date hereof.
BE IT ORDAINED BY THE CITY COUNCIL
OF THE CITY OF OMAHA: arl published and
ARTICLE IN a cr burin hat time w regularly P
FINDINGS AND DETERMINATIONS TiTl t � AL jet 0ii��}B�p n ty time
of Dou ,re of Nebraska.
The Mayor and Council ete of the City of in ge eral`cvc� l�� (>�`k�I
Omaha hereby find and determine:
(a) the City of Omaha Public Facilities My Gomm.Ezp.bee.ii,2017
Corporation, a nonprofit corporation Subscribed' presence and sworn to before
organized under Nebraska law (the
21 70 13th
"Corporation"), has been established for the day of
purpose of assisting the City of Omaha, Publisher's Fee met s h — 7
Nebraska (the "City") in the (i)acquisition, January 2�
construction, furnishing and equipping of Additional Copies $
improvements and additions to public 21__—
buildings and(ii)the acquisition of equipment Total
and vehicles for the benefit of the City;and
.70
(b)the City intends that certain parcels of tary Public in and for Douglas County,
real estate owned by the City, which are State of Nebraska
withinthe tp icsi boundaries of the
City,, constitutetuts thee sites off the Project
(collectively,the"Project Sites"). The Project
Sites are currently encumbered by two Site
Lease Agreements dated as of April 24,2002
(collectively, the "2002 dLeases ty of by
O 2 0and
between the City
a
Convention Hotel Corporation, a Nebraska
nonprofit corporation (the "Hotel
Corporation");and
(c) Under the 2002 Leases, the City
maintains fee ownership of the Project Sites
and a reversion right to the improvements,
• including the upscale convention hotel (the
"Project")located on the Project Sites;and
(d)the Corporation is willing to issue its
lease revenue bonds,in one or more series,
in the aggregate principal amount of not to
exceed$140,000,000(the"Bonds")on behalf
of the City,the proceeds of which Bonds will
be eases rights in part,d,in d to acquire to the Project to the City;
and
(e)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
(i)entering into the Site Lease Agreement
(the"Site Lease"), whereby the Corporation
will lease certain rights in and to the Project
Sites from the City and (ii)entering into a
Lease-Purchase Agreement (the
"Agreement")whereby the City will lease the
rights of the Corporation to the
Proal ject
from
the Corporation and pay as
ents
the amounts necessary timely to discharge
the indebtedness created by the
Corporation's issuance of the Bonds;and
(f)the Corporation is willing to enter into
to
an Indenture of Trust(the"Indenture")
•
First National Bank of Omaha,astr trustee
paying agent (the "Trustee"), setting forth
the maturities,interest rates and other erms
and conditions of the Bonds, and providing
for the application of the proceeds of the
Bonds to the costs of the Project;and
(g) under applicable internal Revenue
...r.,.,c annroval by the City Council
ORDINANCE NO.41023 THE DAILY RECORD
An Ordinance authorizing and approving a
Lease Purchase Agreement (the
"Agreement") between the City of Omaha OF OMAHA
Public Facilities Corporation (the
"Corporation") and the City of Omaha, LYNDA K. HENNINGSEN, Publisher
Nebraska (the "City"), a copy of which
Agreement is attached hereto as Exhibit A PROOF OF PIJDLICATION
and incorporated herein by this reference,to
provide funds for the lease-purchase of
certain real property rights in an upscale UNITED STATES OF AMEI3ICA,
convention hotel facility (the 'Project")
constructed adjacent to the City's convention The State of Nebraska,center; authorizing and approving a Site SS.
Lease Agreement(the"Site Lease")between District of Nebraska,
the Corporation and the City for the leasing County of Douglas,
of the reversion right in and to the Project of
the City to the Corporation, a copy of which City of Omaha,
Site Lease is attached hereto as Exhibit B and
incorporated herein by this reference;
approving an Indenture of Trust (the J. BOYD
"Indenture") between the Corporation and
First National Bank of Omaha,as Trustee and being duly sworn,deposes and says that she is
Paying Agent, a copy of which Indenture is
attached hereto as Exhibit C and incorporated LEGAL EDITOR
herein by this reference;approving the terms
and conditions of the Corporation's not to
exceed $140,000,000.00 Lease Revenue of THE DAILY RECORD, of Omaha, a legal newspaper, printed and
Bonds(the"Bonds"),to be issued in one or published daily in the English language, having a bona fide paid
more separate series as set forth in the
Indenture and the issuance and delivery circulation in Douglas County in excess of 300 copies, printed in
thereof; delegating authority to the City's Omaha,in said County of Douglas,for more than fifty-two weeks last
Finance Director to determine the final price,
interest rates, principal amount, tax status past; that the printed notice hereto attached was published in THE
and redemption provisions for the Bonds;and
satisfying applicable federal income tax law DAILY RECORD,of Omaha on
requirements and approving the effective February $, 2017
date hereof.
BE IT ORDAINED BY THE CITY COUNCIL
OF THE CITY OF OMAHA:
ARTICLE I
FINDINGS AND DETERMINATIONS
The Mayor and Council of the City of
Omaha hereby find and determine:
(a) the City of Omaha Public Facilities That said Newspaper during that time was re ` p ' hed and
Corporation, a nonprofit corporation in ge *- —=— •e Countyof Douglas,
organized under Nebraska law (the g $t of Nebraska.
"Corporation"), has been established for the GENERALNOTARY Stme of Nebimskd
purpose of assisting the City of Omaha, Vh[i ELLEN FREEMAN
Nebraska (the "City") in the (i) acquisition, , ubscribed in my ese ce and sworn to before
J. MyComm.nmExp.De. 11, 017
construction, furnishing and equipping of _ 8
improvements and additions to public 164.E
buildings and(ii)the acquisition of equipment Publisher's Fee $ me this day of
and vehicles for the benefit of the City;and, February 17
(b)the City intends that certain parcels of Additional Copies $ ) , 2 real estate owned by the City, which are Total $164.30 )
within the geographical boundaries of the
City, constitute the sites of the Project
(collectively,the"Project Sites").The Project N ary Public in and for Douglas County,
Sites are currently encumbered by two Site State of Nebraska
,.,.. Lease Agreements dated as of April 24,2002
(collectively, the "2002 Leases"), by and
between the City and City of Omaha
Convention Hotel Corporation, a Nebraska
nonprofit corporation (the. "Hotel
Corporation");and,
(c) Under the 2002 Leases, the City
maintains fee ownership of the Project Sites
and a reversion right to the improvements,
including the upscale convention hotel (the
Project") located on the Project Sites (the
Project Sites together with the Project shall
be referred to herein as the"Property");and,
(d)the Corporation is willing to issue its
lease revenue bonds, in one or more series,
in the aggregate principal amount of not to
exceed $140,000,000.00 (the "Bonds") on
behalf of the City, the proceeds of which
Bonds will be used, in part, to acquire the
Project and to lease rights in and to the
Project to the City;and,
(e)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 (i)
entering into the Site Lease Agreement(the
"Site Lease"), whereby the Corporation will
lease certain rights in and to the Property
from the City and(ii)entering into a Lease-
Purchase Agreement (the "Agreement")
whereby the City will lease the rights of the
Corporation to the Property 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,
(f)the Corporation is willing to enter into
an Indenture of Trust(the "Indenture")with
First National Bank of Omaha,as trustee and
paying agent (the 'Trustee"), setting forth
the maturities,interest rates and other terms
and conditions of the Bonds, and providing
for the application of the proceeds of the
Bonds to the costs of the Project;and,
(g) under applicable Internal Revenue
Service rulings, approval by the City Council