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Home My WebLink AboutOrdinance 2679 FILED FOR RECORD 1900 DEC - 3 All 11 : 48 Y41ASHINGTO1,11 COUNTY, ARK . ALMA KOLLMEYER ORDINANCE NO . CIRCUIT CLERK AN ORDINANCE AUTHORIZING THE ISSUANCE OF A BOND ANTICIPATION NOTE AND INDUSTRIAL DEVELOPMENT REVENUE BONDS UNDER ACT NO . 9 OF THE FIRST EXTRAORDINARY SESSION OF THE SIXTY- SECOND GENERAL ASSEMBLY OF THE STATE OF ARKANSAS , APPROVED JANUARY 21 , 1960 , AS AMENDED , FOR THE PURPOSE OF PROVIDING INTERIM AND PERMANENT FINANCING OF THE COSTS OF SECURING AND DEVELOPING INDUSTRY ( THE PARTICULAR INDUSTRIAL PROJECT IS DESCRIBED IN THE ORDINANCE ) ; AUTHORIZING THE EXECUTION AND DELIVERY OF A TRUST INDENTURE SECURING THE NOTE AND BONDS ; AUTHORIZING AND PRESCRIBING OTHER MATTERS PERTAINING TO THE ACQUI - SITION , CONSTRUCTION , RECONSTRUCTION AND EQUIPPING ( THEREOF ; AND DECLARING AN EMERGENCY . WHEREAS , the City of Fayetteville , Arkansas ( the " City " ) is authorized by Act No . 9 of the First Extraordinary Session of the Sixty- Second General Assembly of the State of Arkansas , approved January 21 , 1960 , as amended ( " Act No . 9 " ) , to acquire lands , construct and equip facilities and to incur other costs and expenses and make other expenditures incidental to and for the implementing and accomplishing of the conduct of manufact - uring operations ; and WHEREAS , the City is' authorized by . Act No . 9 to issue a Bond Anticipation Note and Industrial Development Revenue Bonds payable from revenues derived from such industrial project so acquired and constructed and secured by a lien thereon and security interest therein ; and WHEREAS , the necessary arrangements have been made with Baldwin Piano & Organ Company , an Ohio corporation ( the " Company " ) , for the acquisition , construction , reconstruction and equipping of a manufacturing plant consisting of lands , buildings , improvements , machinery , equipment and facilities which will be utilized for the manufacturing of such products as the Company shall elect to manufacture ( the " Project " ) and to lease the Project to the Company pursuant to the terms of a Lease and Agreement subsequently identified herein and referred i to as the " Lease Agreement " ; and MICROFILMED 2u i WHEREAS , the City is providing interim financing through the issuance of a Bond Anticipation Note in the principal 5 amount of $ 1 , 200 , 000 ( " Note " ) under the Act for the Project costs , necessary costs and expenses incidental thereto and expenses of authorizing and issuing the Note , if required by the Company , and permanent financing of the Project costs , necessary costs and expenditures incidental thereto and expenses of authorizing and issuing bonds by retirement of the Note , is being furnished by the City issuing Industrial Develop- ment Revenue Bonds under the provisions of Act No . 9 ( the " Bonds " ) ; and WHEREAS , the Note will be in the principal amount , bear- ing interest and maturing as hereinafter set forth in the form of a Trust Indenture authorized by this Ordinance ; and WHEREAS , the Bonds are to be sold and issued in series , with there being issued at an appropriate time to retire the Note Series 1980 Bonds in the principal amount , bearing inter- est , maturing and subject to redemption as hereinafter set forth in the form of a Trust Indenture authorized by this Ordinance ; NOW , THEREFORE , BE IT ORDAINED by the Council of the City of Fayetteville , Arkansas : Section 1 . That there be , and there is hereby authorized and directed the following : ( a ) The sale of the Note by the City for the sum of $ 1 , 200 , 000 in accordance with the terms of a Note Purchase Agreement to be executed by the City and the purchaser of the Note ( " Note Purchase Agreement " ) on terms recommended by the Company , and sale of the Series 1980 Bonds by Edward D . Jones & Co . , Maryland Heights , Missouri , or other qualified person and the execution by the Mayor and City Clerk of an Underwriting Agreement ( " Underwriting Agreement " ) with such broker-dealer or other ® 1G0 qualified person for the price and pursuant to the terms recommended ' by the Company ( copies of which Note Purchase Agreement and Underwriting . Agreement , when prepared by the Company and presented to the City for signing shall be so signed and shall be filed in the office of the City Clerk ) ; ( b ) The acquisition , construction , reconstruction and equipping of the Project , and in con- nection therewith , the execution of contracts , and the acceptance of assignments of contracts , for the acquisition , construction , reconstruc - tion and equipping of the Project ; and ( c ) The performance of all obligations of the City under the Lease Agreement pertaining to the acquisition , construction , reconstruction and equipping of the Project and the perfor- mance of all obligations of the City under the contracts referred to in ( b ) above . Section 2 . That the issuance of the Note and Bonds from time to time is hereby authorized , and the immediate delivery of the Note is hereby authorized . To prescribe the terms and conditions upon which the Note and Bonds are to be executed , authenticated , issued , accepted , held and secured , the Mayor is hereby authorized and directed to execute and acknowledge a Trust Indenture ( the " Indenture " ) , and the City Clerk is hereby authorized and directed to execute and acknowledge the Indenture and to affix the seal of the City thereto , and the Mayor and City Clerk are hereby authorized and directed to cause the Indenture to be accepted , executed and acknowledged by the Trustee . The Indenture , which constitutes and is hereby made a part of this Ordinance , shall be in substant- ially the following form , to wit : ( Advice is hereby given that a copy of the Trust Indenture is on file in the office of the City Clerk of the City and is available for inspection by any interested person . ) } all ICU 240 d i r , i TRUST INDENTURE l by and between CITY OF FAYETTEVILLE , ARKANSAS and BANKERS TRUST COMPANY New York , New York Dated as of 1980 This Instrument was Prepared By : DAVIDSON , PLASTIRAS , HORNE , HOLLINGSWORTH & ARNOLD , Ltd , 211 National Investors Life Bldg . Post Office Box 3363 Little Rock , Arkansas 72203 THIS INSTRUMENT ALSO CONSTITUTES A SECURITY AGREEMENT UNDER THE ARKANSAS UNIFORM COMMERCIAL CODE � I TABLE OF CONTENTS Parties 1 Recitals 2 Note Form 2 ( a ) Bond Form 3 Granting Clauses 4 ARTICLE I DEFINITIONS Section 101 Definitions 20 Section 102 Use of Words 25 ARTICLE II THE BONDS Section 201 Authorized Amount of Bonds 26 Section 202 Details of Bonds ; Issuance of Additional Series 26 Section 203 Execution of Bonds ; Limited Obligation 28 Section 204 . Authentication 29 Section 205 . Form of Bonds 30 Section 206 Delivery of Bonds 30 Section 207 Indenture Superior to Laborer ' s , Etc . Liens 30 Sjection 208 Mutilated , Destroyed or Lost Coupons or Bonds 31 Section 209 Registration of Principal and Interest 31 Section 210 Cancellation 33 ARTICLE III REDEMPTION OF BONDS BEFORE MATURITY Section 301 Redemption of Series 1980 Bonds 34 Section 302 Notice 38 Section . 303 Redemption of Subsequent Series 39 Section 304 Unpaid Coupons 39 Section 305 Redemption of Note 41 ARTICLE IV GENERAL COVENANTS Section 401 Payment of Principal and Interest 42 Section 402 Performance of Covenants 42 Section 403 City Warrants Title ; Instruments of Further Assurance 43 Section 404 Payments of Taxes , Charges , Etc . 43 Section 405 Obligations to Maintain and Repair 44 Section 406 Recordation of Trust . Indenture and Lease Agreement 45 Section 407 Books of Record and Account ; Inspection 45 Section 408 List of Bondholders 46 Section 409 Lease Agreement Reference ; Lien of Trust Indenture Subordinate to Lease Agreement ; Enforcement Obligations and Rights ; Guaranty Agreement Reference 47 i Section 410 Covenant not to Sell or Dispose of Interest in Trust Estate and Not to Encumber Except in Accordance with Lease Agreement and Trust Indenture 48 Section 411 Obligation to Insure 49 Section 412 Covenant of Filings Under Section 103 ( b ) ( 6 ) ( D ) of the IRC 49 Section 413 Covenant Not to Violate Section 103 ( b ) of the IRC 49 ARTICLE V REVENUES AND FUNDS Section 501 Creation of Bond Fund 50 Section 502 Payments into Bond Fund 50 Section 503 Use of Moneys in Bond Fund 51 Section 504 Custody of Bond Fund and Withdrawals Therefrom by Trustee 51 Section 505 Non-presentment of Bonds or Coupons 52 Section 506 Fees , Charges and Expenses of Trustee , Paying Agent and Bond Registrar 53 Section 50.7 Moneys to be Held in Trust 53 Section 5.08.. Taxable Interest Account 55 Y Section 509 Refund to Lessee of Excess Payments 55 ARTICLE VI CUSTODY AND APPLICATION OF PROCEEDS OF BONDS Section 601 Deposits Into the Construction Fund 56 Section 602 Disbursements from Construction Fund 56 Section 603 When all Project Costs are Paid Balance Used or Transferred to Bond Fund 57 Section 604 When the Series 1980 Bonds are Issued 58 ARTICLE VII INVESTMENTS Section 701 Investment of Moneys in Construction Fund and Other Funds 59 ARTICLE VIII POSSESSION , USE AND RELEASE OF MORTGAGED PROPERTY Section 801 City ' s Right to Possess , Use and Enjoy 60 Section 802 Trustee Authorized , Pursuant to Specified Conditions , in Joining with City to Release Lien in Event of Partial Condemnation 60 Section 803 Release of Certain Lands to be Used in Expansion Program From Lien of Indenture 60 Section 804 Release of Items of Project Machinery , Equipment and Fixtures 62 ARTICLE IX DISCHARGE OF LIEN Section 901 Discharge of Lien 63 ii ARTICLE X DEFAULT PROVISIONS ; REMEDIES OF TRUSTEE AND BONDHOLDERS r: Section 1001 Events of Default 65 Section 1002 Acceleration 66 Section 1003 Trustee ' s Right to Enter and Take Possession 67 Section 10'04 Other Remedies ; Rights and Obligations . with Reference to Remedies 68 Section 1005 Rights of Majority of Bondholders to Take Charge 69 Section 1006 Appointment of Receiver 69 Section 1007 Waiver by City of Benefit of Laws and Rights of Appraisement and Redemption 70 Section 1008 Application of Available Moneys 70 Section 1009 Remedies Vested In Trustee 72 Section 1010 Rights and Remedies of Bondholders 72 Section 1011 Termination of Proceedings 74 Section 1012 Waiver of Events of Default 74 Section 1013 Notice of Default ; Opportunity of Lessee to Correct 75 Section 1014 Rights and Remedies of Trustee and Bondholders Subject and Subordinate to Rights of Lessee Under Lease Agreement 76 ARTICLE XI THE TRUSTEE Section 1101 Acceptance of Trusts 77 . Se �tion 1102 Fees , Charges and Expenses of Trustee 81 Section 1103 Notice of Bondholders of Default 82 Section 1104 Intervention by Trustee 83 Section 1105 Successor Trustee 83 Section 1106 Resignation by Trustee 83 Section 1107 Removal of Trustee 84 Section 1108 Appointment of Successor Trustee ; Temporary Trustee 84 Section 1109 Acceptance by Successor Trustee 85 Section 1110 Right of Trustee to Pay Taxes and Other Charges 85 Section 1111 Trustee Protected in Relying Upon Resolutions , etc . 86 Section 1112 Trustee Which has Resigned or Been Removed Ceases to be Paying Agent and Bond Registrar 86 Section 1113 Paying Agent ' s and Bond Registrar ' s Fees and Charges 87 Section 1114 Appointment of Co-Trustee or Separate Trustee 87 ARTICLE XII SUPPLEMENTAL INDENTURES Section 1201 Supplemental Indentures Not Requiring Consent of Bondholders 89 Section 1202 Supplemental Indentures Requiring Consent of Bondholders 89 Section 1203 Consent of Lessee to Supplemental Indentures 91 iii ARTICLE XIII AMENDMENT TO LEASE AGREEMENT Section 1301 Amendments to Lease Agreement Not Requiring Consent of Bondholders 92 Section 1302 Amendments to Lease Agreement Requiring Consent of Bondholders 92 ARTICLE XIV MISCELLANEOUS Section 1401 Consents , etc . of Bondholders 94 Section 1402 Limitation of Rights 95 Section 1403 Severability 95 Section 1404 Notice 96 Section 1405 Arkansas Substantive Law Governs 96 Section 1406 Counterparts 96 V iv TRUST INDENTURE This TRUST INDENTURE executed as of the day of r 1., 1980 , by and between the City of Fayetteville , Arkansas a city of the first class , duly existing under the laws of the State of Arkansas ( the " City " ) , as party of the first part , and Bankers Trust Company , an institution organ- ized under and existing by virtue of the laws of the State of New York , with its principal office , domicile and post office address in New York , New York, ( the " Trustee " ) , as party of the second part ; WITNESSETH : WHEREAS , the City is authorized by Act No . 9 of the First Extraordinary Session of the Sixty-Second General Assembly of the State of Arkansas , approved January 21 , 1960 , as amended ( " Act No . 9 " ) , to acquire lands , construct and equip facili - ties and to incur other costs and expenses and make other expenditures incidental to and for the implementing and accom- plishing of the conduct of manufacturing operations ; and WHEREAS , the City is authorized by Act No . 9 to issue Bond Anticipation Notes and Industrial Development Revenue Bonds payable from revenues derived from the industrial pro- ject so acquired and constructed and secured by a lien . thereon and security interest therein ; and WHEREAS , the necessary arrangements have been made with Baldwin Piano & Organ Company , an Ohio corporation . ( sometimes herein referred to as the " Company " ) , for the acquisition , construction and equipment of a manufacturing plant consisting of lands , buildings , improvements , machinery , equipment and facilities which will be utilized for the manufacturing of such products as the Company shall elect to manufacture ( the TI - 1 " Project " ) and to lease the Project to the Company , pursuant r� to the terms of a Lease and Agreement subsequently identified r herein and referred to as the " Lease Agreement " ; . and WHEREAT , interim financing of the Project Costs , neces - sary costs and expenditures incidental thereto and expenses of authorizing and issuing a note and bonds , is being furnished by the City issuing a bond anticipation note in the principal amount of $ 1 , 200 , 000 under the provisions of Act No . 9 ( the " Note " ) ; and , WHEREAS , permanent financing of the Project costs , neces - sary costs and expenditures incidental thereto and expenses of authoriz,ing•..and issuing the Note and the Bonds by retirement 9f the principal of the Note is being furnished by the City i$ suing Industrial Development Revenue Bonds under the provis - ions of Act No . 9 within two years from the date of the l Note , with there to be initially sold and issued Series 1980 Bonds in the principal amount of not to exceed $ 1 , 200 , 000 ( the " Series 1980 Bonds " ) ; and WHEREAS , the execution and delivery of this Trust Inden- ture ( the " Trust Indenture " or the " Indenture " ) and the issu- ance of the Note and Series 1980 Bonds have been in all res - pects duly and validly authorized by ordinance of the City Council of the City adopted and approved on the day of 1980 ; and WHEREAS , the Note and the Series 1980 Bonds , interest coupons to be attached thereto and the Trustee ' s Certificate to be endorsed thereon are all to be in substantially the following form , with necessary and appropriate variations , omissions and insertions as permitted or required by this Indenture , to wit ( the Bond form is set up for Series 1980 Bonds and there shall be necessary, conforming changes in the case of any subsequent series ) : TI - 2 CITY OF FAYETTEVILLE , ARKANSAS BOND ANTICIPATION NOTE BALDWIN PIANO & ORGAN COMPANY PROJECT KNOW ALL MEN.. BY THESE PRESENTS : That the City of Fayetteville , Washington County , Ark- ansas , a municipality under the laws of the State of Arkansas ( the " City " ) , for value received , promises to pay to the order of Bankers Trust Company ( " Payee " ) , on or before the principal sum of ONE MILLION TWO HUNDRED THOUSAND DOLLARS in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of • public and private debts , and to pay in like coin or currency interest on said principal amount from the date hereof until paid at the rate of * ; but the interest payable on this Note shall not exceed , and in no event shall the City be required' = to pay more than 108 per annum interest on the amount received by it , which the City acknowledges to be One Million Two Hundred Thousand Dollars ( $ 1 , 200 , 000 ) or on such lesser amount as may be outstanding at any time , for any period during which this Note is outstanding , .such interest to b2 payable quarterly on the day of , and of each year commencing 19 Principal and interest shal'1 be payable in federal or other immediately available funds at the principal office of Bankers Trust Company , New York , New York ( the " Trustee " and Bond Registrar and the " Paying Agent " ) . If any payment of interest with respect to this Note becomes due and payable on a day which is not a Business Day , ( as defined in the Indenture referred to below ) , then such payment shall be made on the next succeeding Busi- ness Day , except that interest shall continue to accrue on the unpaid principal . This Note , designated " City of Fayetteville , Arkansas Bond Anticipation Note - Baldwin Piano & Organ Company Pro- ject " , is issued for the purpose of providing interim financ- ing and in anticipation of the issuance of permanent and definitive bonds for the payment of Project costs . The Note is issued and is secured and entitled to the protection given by a Trust Indenture ( the " Indenture " ) , dated as of , 1980 , duly executed and delivered by the City to the Trustee , which Indenture is recorded in the office of the Circuit Clerk and Ex-Officio Recorder of Washington County , Arkansas , and reference is hereby made to the Indenture and all indentures supplemental thereto for the provisions , among others , with respect to the conditions for the issuance of this Note , the definitive bonds , the nature and extent of the security , the rights , duties and obligations of the City , the *An amount to be negotiated by and between Baldwin Piano & Organ Company and the purchaser of the Note , which interest rate may fluctuate ( subject to the limitation that it shall not exceed 108 per annum ) . TI - 2 ( a ) Trustee and the holder of the Note , and the terms upon which the Note is issued and secured . The Note is issued pursuant to and in full compliance with the Constitution and laws of the State of Arkansas , r particularly Act No . 9 of the First Extraordinary Session of the Sixty- Second General Assembly of the State of Arkansas , approved Jah'uary 21 , 1960 , as amended ( " Act No . 9 " ) , and pursuant to Ordinance No . of the City , passed and approved on the day of , 1980 , which ordinance authorized the execution and delivery of the Indenture . The Note is not a general obligation of the City , but is a special obligation payable solely from lease rentals and revenues derived from the Project . The Project , consisting of lands , buildings , improvements , machinery , equipment and facilities , has been leased to Baldwin Piano & Organ Company , an Ohio corporation , ( the " Company " ) under a Lease and Agreement which provides for lease rental and mandatory purchase payments sufficient to pay the principal of , premiums , if any , and ' interest on the Note . Provision has been made in the Lease and Agreement for the lease rentals and mandatory purchase payments to be paid directly to the Trustee and deposited in a special account of the City designated " Fayetteville , Arkansas Industrial. Development Revenue Bond Fund - Baldwin Piano and Organ Company Project " ( the " Bond Fund " ) . Project revenues ( including particularly rentals under the Lease and Agreement ) have been duly pledged by the Indenture to the payment of the principal of , premiums , if any , and interest on the Note , and the Note is secured by a lien on and security interest in the Project , subject to an outstanding first mortgage , the Lease and \Agreement and encumbrances permitted by the Indenture . The Note does not constitute an indebtedness of the City within the meaning of any constitutional or statutory limit- ation . Modifications or alterations of the Indenture , or of any indenture supplemental thereto , may be made only to the extent and in the circumstances permitted by the Indenture . The Note shall be subject to redemption by the Issuer prior to maturity at any time upon not less than five ( 5 ) Business Days notice as provided herein . Notice of redemption shall be mailed by registered or certified mail to the Payee and placed in the mail not less than five ( 5 ) Business Days prior to the date fixed for redemption . After the date speci- fied in such Notice , the Note so called will cease to bear interest provided funds for its payment have been deposited with the Trustee , and , except for the purpose of payment , shall no longer be protected by the Indenture and shall not be deemed to be outstanding under the provisions of the Indenture . The principal and interest of this Note are guaranteed by D . H . Baldwin Company under a Guaranty and Indemnification Agreement between D . H . Baldwin Company and Bankers Trust Company dated December , 1980 ( the " Guaranty " ) . Nothing contained in this Note or in the Indenture shall affect or impair the negotiability of this Note and as declar- ed in Act No . 9 , this Note shall be deemed to be a negotiable instrument under the laws of the State of Arkansas . This Note is issued with the intent that the laws of the State of Ark- ansas will govern its construction . TI - 2 ( b ) 4 Neither this Note nor the Guaranty has been registered under the Securities Act of 1933, as amended. This Note may not be offered, sold or otherwise transferred except in comp- liance with applicable federal and state securities laws. • IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts, conditions and things required to exist, happen and be performed precedent to and in the issuance of the Note do exist, have happened and have been performed in due time, form and manner as required by law and that the indebtedness repre- sented by the Note, together with all obligations of the City, does not exceed any applicable and effective constitutional or statutory limitation; arid that the above referred to revenues pledged to the payment of the principal of and interest on the Note as the same becomes due and payable, if received, will be sufficient in amount for that purpose. This Note shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the Indenture until the Certificate of Authentication hereon shall have been signed by the Trustee. IN WIT -NESS WHEREOF, the City of Fayetteville, Arkansas has caused this Note to be executed by its Mayor and City Clerk, thereunto duly authorized, with the manual signature of the Mayor and the manual signature of the City Clerk, and its corporate seal to be affixed, all as of the _ day of • 1980. ti. CITY OF FAYETTEVILLE, ARKANSAS By: Mayor ATTEST; City Clerk (SEAL) (Form of Trustee's Certificate) TRUSTEE'S: CERTIFICATE OF AUTHENTICATION This Note is the Note designated in and issued under the provisions of the within mentioned Indenture. BANKERS TRUST COMPANY, New York, New York, Trustee By Authorized Signature • TI -2(c) r,- .7 Cc) (Form of Bond) UNITED STATES OF AMERICA STATE OF ARKANSAS COUNTY OF WASHINGTON CITY OF FAYETTEVILLE _% INDUSTRIAL DEVELOPMENT REVENUE BOND BALDWIN PIANO & ORGAN COMPANY PROJECT SERIES 1980 No. 1980 - KNOW ALL MEN BY THESE PRESENTS: $5,000 That the City of Fayetteville, Washington County, Arkansas, a municipality under the laws of the State of Arkansas (the "City"), for value received, promises to pay to bearer, or if this Bond be registered to the registered owner hereof, on 19_, the principal sum of FIVE THOUSAND DOLLARS in such coin or currency of the United States of America as at thettime of payment shall be legal tender for the payment of public and private debts, and to pay in like coin or currency interest on said principal amount from the date hereof until paid at the rate of annum, such interest to be payable on of each year commencing per cent ( 8) per and Principal and interest shall be payable at the principal office of Bankers Trust Company, New York, New York, (the "Trustee" and "Paying Agent"). Payment of interest when registered as to interest may be by check or draft to the registered owner as shown on the bond registration books of the City maintained by the Trustee. This Bond, designated "City of Fayetteville, Arkansas Industrial Development Revenue Bond - Baldwin Piano & Organ Company Project, Series 1980," is one of a series of Bonds in r i TI -3 the principal amount of Five Thousand Dollars ($5,000) (the "Series 1980 Bonds"). The City reserves the right to issue. Additional Bonds on a parity of security with the Series 1980 Bonds and the Bonds of all series will be referred to herein as the "Bonds." The Bonds are all issued under and are all equally and ratably secured and entitled to the protection given by a Trust Indenture (the "Indenture"), dated as of 198O duly executed and delivered by the City to the Trustee, which Indenture is recorded in the office of the Circuit Clerk and Ex -Officio Recorder of Washington County, Arkansas, and reference is hereby made to the Indenture and all indentures supplemental thereto for the provisions, among others, with respect to -the conditions for the issuance of additional series, the nature and extent of the security the rights, duties and o)ligations of the City, the Trustee and the holders and regis- tered owners of the Bonds, and the terms upon which the Bonds are issued and secured. The Series 1980 Bonds are being issued for the purpose of financing Project costs and paying expenses of issuing the Series 1980 Bonds. The Series 1980 Bonds are issued pursuant to and in full compliance with the Constitution and laws of the State of Arkansas, particularly Act No. 9 of the First Extraordinary Session of the Sixty -Second General Assembly of the State of Arkansas, approved January 21, 1960, as amended ("Act No. 9"), and pursuant to Ordinance No. of the City, passed and approved on the , 1980, which ordinance autho- rized the execution and delivery of the Indenture. The Series 1980 Bonds are not general obligations of the City, but are special obligations payable solely from lease rentals and revenues derived from the Project (or the Bond Guaranty Agree- ment identified below). The Project, consisting of lands, TI -4 r 1 buildings, improvements, machinery, equipment and facilities, has been leased to the Baldwin Piano & Organ Company, an Ohio corporation (the "Company"), under a Lease and Agreement (the "Lease Agreement"), dated as of , 1980, wherein the City is Lessor and the Company is Lessee, providing for lease rentals and project purchase payments sufficient for the payment of the principal of, premiums, if any, and interest on the Series 1980 Bonds. Provision has been made in the Lease Agreement for the lease rentals and project purchase payments r to be paid directly to the Trustee and deposited in, a special account of the City designated "Fayetteville, Arkansas Indust- rial Development Revenue Bond Fund - Baldwin Piano & Organ Company Project" (the "Bond Fund"). Project revenues (defined in the Indenture including particularly rentals and other pay- ments'under the Lease Agreement) have been duly pledged by the Indenture to the payment of the principal of, premiums, if any, and interest on the Bonds, and the Bonds are secured•by a lien on and security interest in the Mortgaged Property (defined in the Indenture), subject to the Lease Agreement and encum- brances permitted by the Indenture. In addition, the payment of the principal, premiums, if any, and interest of the Series 1980 Bonds has been unconditionally guaranteed by D.H. Baldwin Company, an Ohio corporation, pursuant to a guaranty agreement, dated as of * , and entered into between D.H. Baldwin Company and the Trustee (the "Bond Guaranty Agreement"). The Bonds do not constitute an indebtedness of the City within the meaning of any constitutional or statutory limitation. The holder of this Bond shall have no right to enforce the provisions of the Indenture or to institute action to enforce the covenants therein, or to take any action with respect to any event of default under the Indenture, or to institute, appear in and defend any suit or other proceeding with respect TI -5 thereto, except as -provided in the Indenture. In certain events, on the conditions, in the manner and with the effect set forth in the Indenture, the principal of all the Bonds f I issued under the Indenture and then outstanding may be declared and may became due and payable before the stated maturity thereof, together with accrued interest thereon. Modifications or alterations of the Indenture, or of any indenture supplemental thereto, may be made only to the extent and in the circumstances permitted by the Indenture. The Series 1980 Bonds shall be subject to redemption prior 'to maturity as follows: (1) The Series 1980 Bonds shall be redeemed from the proceeds ofcondemnation of all or substantially all of the Project or from the Company exercising an option to purchase pµrsu,ant to the provisions of Section 2001 A of the Lease Agreement, in whole but not in part, at any time, at a redemp- tion price equal to the principal amount being redeemed plus accrued interest to the redemption date, or, if redeemed from any other source on any interest payment date on or after * at the optional redemption price to be in effect as of the next succeeding interest payment date set forth in (3) hereof. (2) In the event of a "Determination of Taxability," as defined in Section 301(2) of the Trust Indenture the Series 1980 Bonds shall be redeemed in whole from the proceeds of the Company's payments pursuant to the provisions of Section 1905 of the Lease Agreement, at any time, at a redemption price equal to the amount specified in Section 301(2) of the Trust Indenture. *(To be completed on issuance of the Bonds in accordance with the terms of Section 301 of the Trust Indenture.) TI -6 (3) The Series 1980 Bonds may be redeemed on and after * at the option of the City, from funds from any other source, in whole or in part, on any interest payment date in such manner as the Trustee shall determine to be fair and equitable, with there to be no partial redemption of any Bond, at a redemption price equal to the principal amount of .the Bonds being redeemed plus accrued interest to the date of redemption and plus a premium, if any, of the principal amount of the Bonds being redeemed as follows: Redemption Date (*) Redemption (Inclusive) Price _ through , 19 105.00% 19 through , 19 104.50% 19 through , 19 104.00% 19_ through , 19 103.50% 19 through , 19 103.00% 19_ through , 19 102.50% ti 19 through , 19 102.00% 19 through , 19 101.50% 19 through , 19 101.00% 19 through , 19_ 100.50% 19 and thereafter 100.00% (4) At any time after * , any Series 1980 Bond which is registered as to principal and interest may be pre- sented to the Trustee for payment by the City prior to matur- ity on the terms and subject to the conditions following: (a) The aggregate principal amount of Series 1980 Bonds which must be redeemed by the City in each twelve-month period ending * may not exceed (i) $50,000 for all Bond- holders and (ii) except as provided in paragraph (d) hereof, $10,000 for any single Bondholder. (b) Requests for redemption will be honored in the order of their receipt by the Trustee, except for requests presented by the personal representative or surviving joint tenant(s) of s-i TI -7 a deceased holder, as described in paragraphs (c) -and (d) of this provision, which will be given priority over other re- quests in the order of their receipt. For purposes of this 1 provision, such requests are deemed received by the Trustee at such time asthere has been received in the principal office of the Trustee (i) the Bonds for which redemption is sought and any coupons appertaining thereto and (ii) either (A) a written request for redemption in the form satisfactory to the • Bond Registrar signed by the registered holder of the Bond as evidenced in the books of the Bond Registrar, or the duly •authorized attorney of such person, or (B) in the case of a request made by the administrator, executor or personal repre- sentative, by the surviving joint tenant of a deceased owner or by any other person not the registered holder of a Bond, such documents and evidence of authority as the Trustee may require, including when appropriate, but not limited to, a certificate of death as to any deceased Bondholder, inheri- tance tax or estate tax releases or waiver and certified copies of letters of appointment of any executor, administr- ator, guardian or personal representative. (c) Receipt of requests for redemption and of the accom- panying Bonds shall be acknowledged by the Trustee. (d) Requests for redemption made by the duly appointed and acting administrator, executor or personal representative of the estate of a deceased Bondholder, or by the surviving joint tenant(s) of a deceased Bondholder shall be subject to the aggregate $50,000 per year limitation but not to the individual $10,000 per year limitation set out in paragraph (a) hereof. Bonds which under this paragraph (d) qualify for redemption will be paid within ninety days after the date of their receipt by the Trustee. s TI -8 (e) Except as provided in paragraph (d) hereof, the Trustee will pay, on * (or if a holiday, the business day next following such date) of each year in which requests far redemption complying with this provision have been received by the Trustee prior to * of such year (or remain on the books from a prior year pursuant to paragraph (g) of this provision), the principal amount, and accrued interest to such date of payment, of each Bond to be redeemed hereunder. (f) Any request for redemption made under this provision may be withdrawn at any time prior to such redemption except during the period in each year commencing on * and ending with the date of payment fixed for the Bonds covered by such request. (g) The Trustee shall maintain at its principal offices a register in which it shall record, the order of receipt, all requests for redemption of Bonds received by the Trustee under this provision. Unless withdrawn, all such requests shall remain in effect, during the year in which they are received and thereafter from year to year, until the Series 1980 Bonds which are the subject of such request have been redeemed. The Trustee, at the expense of the City, shall publish notice of any call for redemption one time in a newspaper published in the City of Little Rock, Arkansas, and having a general circulation throughout the State of Arkansas, which publication shall not be less than thirty (30) days prior to the date of redemption. In addition, the Trustee at the expense of the City shall mail notice of the call for redemp- tion by registered or certified mail placed in the mails not less than thirty (30) nor more than sixty (60) days prior to the date fixed for redemption to the registered owner of any .1 ra TI -9 Bond called for redemption that is registered as to principal, or as to principal and interest, addressed to such registered r! owner at his registered address and to each holder of a bearer bond called for redemption whose name and address is shown on the list of bondholders maintained by the Trustee. In the event that all of the Bonds called for redemption are registered as to principal, or as to principal and interest, notice in writing by registered or certified mail to the owner or owners thereof not less than thirty (30) nor more than sixty (60) days prior to the date fixed for redemption shall be sufficient, and published notice of the call for redemption need not be given. Each notice shall specify the serial numbers and the maturities of the Bonds being called, and the date and place on which they shall be presented for payment. Failure or defect in respect of the aforementioned notifications by mail shall not affect the validity of such redemption. After the date specified in such call, the Bond or Bonds so called will cease to bear interest provided funds for their payment have been deposited with the Trustee,, and, except for the purpose of payment, shall no longer be protected by the Indenture and shall not be deemed to be outstanding under the provisions of the Indenture. This Bond may be registered as to principal alone or as to principal and interest and may be discharged from such registration in the manner, with the effect and subject to the terms and conditions endorsed hereon and set forth in the Indenture. Subject to the provisions for registration en- dorsed hereon and contained in the Indenture, nothing contain- ed in this Bond or in the Indenture shall affect or impair the negotiability of this Bond and as declared in Act No. 9, this Bond shall be deemed to be a negotiable instrument under the laws of the State of Arkansas. This Bond is issued with the e I TI -10 intent that the laws of the State of Arkansas will govern its construction. IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts, conditions and things required to exist, happen and be performed precedent to and in the issuance of the Bonds do exist, have happened and have been performed in due time, form and manner as required by law; that the indebtedness represen- ted by the Bonds, together with all obligations of the City, does not exceed any constitutional or statutory limitation; and that the above referred to revenues pledged to the payment of the principal of, premiums, if any, and interest on the Bonds as the same become due and payable, if received, will be sufficient in amount for that purpose. This Bond shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the Indenture until the Certificate of Authentication hereon shall have been signed by the Trustee. IN WITNESS WHEREOF, the City of Fayetteville, Arkansas, has caused this Bond to be executed by its Mayor and City Clerk, thereunto duly authorized, with the facsimile signature of the Mayor and the manual signature of the City Clerk, and its corporate seal to be affixed, and has caused the interest coupons hereto attached to be executed by the facsimile signa- ture of its Mayor, all as of the day of 19. CITY OF FAYETTEVILLE, ARKANSAS By Mayor ATTEST: City Clerk (SEAL) TI -11 (Form of Trustee's Certificate) TRUSTEE'S CERTIFICATE OF AUTHENTICATION �. This Bond is one of the Bonds designated Series 1980 in and issued under the provisions of the within mentioned Inden- ture. BANKERS TRUST COMPANY, TRUSTEE By Authorized Signature (Form of Coupon) No. On the first day of , 19, the City of Fay- etteville, Arkansas (unless the Bond to which this coupon is attached shall have been previously called for redemption or shall have become payable as provided in the Indenture referred to in the Bond) will pay, solely from the revenues pledged in the Indenture, to bearer at the principal corporate trust office of Bankers Trust Company, New York, New York, upon presentation and surrender hereof, the sum of DOLLARS in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts, being six (6) months interest then due on its Industrial Development Revenue Bond - Baldwin Piano & Organ Company Project, Series 1980, dated , 19_, and numbered 1980-. CITY OF FAYETTEVILLE, ARKANSAS By (facsimile signature) Mayor r I TI -12 PROVISIONS. -FOR REGISTRATION AND RECONVERSION This Bond may be registered as to principal alone on the e I books of the City kept by the Trustee under the within mention- ed Indentur4 as Bond Registrar upon presentation hereof to the Bond Registrar. The Bond Registrar shall make mention of such registration in the registration blank below, and this Bond may thereafter be transferred only upon an assignment duly executed by the registered owner or his attorney or legal representative in such form as shall be satisfactory to the Bond Registrar, such transfer to be made on such books and endorsed hereon by the Bond Registrar. The principal of this Bond, if registered, shall be payable only to or upon the order of the registered owner or his legal representative. Interest accruing on this Bpnd will be paid only on presentation and surrender of the attached interest coupons as they respectively become due, and notwithstanding the registration of this Bond as to principal, the appurtenant interest coupons shall remain payable to bearer and shall continue to be transferable by delivery until such time as this Bond is redeemed; provided, that if upon registra- tion of this Bond, or at any time thereafter while this Bond is registered in the name of the owner, the unmatured coupons attached evidencing interest to be thereafter paid hereon shall be surrendered to the Bond Registrar, a statement to that effect will be endorsed hereon by the Bond Registrar and there- after interest evidenced by such surrendered coupons may be paid by check or draft of. the Bond Registrar at the times provided herein to the registered owner of this Bond by mail to the address shown on the registration books This Bond when so TI -13 converted into a Bond registered as to both principal and interest may not be reconverted into a coupon Bond. r I :Name of : Manner of : Signature of Date of Registration:Registered Owner:Registration:Bond Registrar • • : : • TI -14 and WHEREAS, all things necessary to make the Note and Series 1980 Bonds, when authenticated by the Trustee and issued as in 6 I this Indenture provided, the valid, binding and legal obliga- tions of the City according to the import thereof, and to constitute this Indenture a valid lien on the mortgaged proper- ty and a valid pledge of revenues to the payment of the prin- cipal of, premiums, if any, and interest on the Note and Series 1980 Bonds, in accordance with the provisions hereof, have been done and performed or duly authorized, and the creation, execu- tion and delivery of this Indenture and the creation, execution and issuance of said Note and Series 1980 Bonds, subject to the terms hereof., have in all respects been duly authorized; I NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, THIS INDENTURE WITNESSETH: That the City in consideration of the premises and the acceptance by the Trustee of the Trusts hereby created and of the purchase and acceptance of the Note and Series 1980 Bonds by the holders and owners thereof, and the sum of One Dollar ($1.00), lawful money of the United States of America, to it duly paid by the Trustee, at or before the execution and deliv- ery of these presents, and for other good and valuable consider- ations, the receipt of which is hereby acknowledged, and in order to secure the payment of the principal of, premiums, if any, and interest on the Note and Series 1980 Bonds according to their tenor and effect and the performance and observance by the City of all the covenants expressed or implied herein and in Note and Series 1980 the Bonds, subject to Permitted Encum- brances (hereinafter defined) and all of the provisions hereof, does hereby grant, bargain, sell, convey, mortgage, assign and pledge unto the Trustee, and unto its successor or successors TI -15 in trust, and to them and their assigns forever, for the securing of the performance of the obligations of the City hereinafter set forth: r I 1. The following described real estate and premises situated in Washington County, State of Arkansas, with all buildings, additions and improvements now or hereafter located thereon, together with the tenements, hereditaments, appurtenances, rights, privileges and immunities thereunto belonging or appertaining, and warrants the title* to the same, to -wit: A part of the SE 1/4 of the NW 1/4 of Section 20, T -16-N, R -30-W of the 5th Principal Meri- dian,. City of Fayetteville, Washington County, Arkansas, and being more particularly described as follows: Beginning at the Northwest corner of the SE 1/4, of the NW 1/4 of said Section 20; thence S 88° 53' E 368.51 feet; thence S 1 07' W 95.43 feet to the point of beginning, thence.S 1 07' W 412.10 feet; thence S 88 53' E 511.58 feet; thence N 1 07' E 237.34 feet; thence S 88° 53' E 83.4 fe8t; thence N 1° 07' E 125.73 feet; thence N 88 53' W 83.4 feet; thence N 1 07' E 49.03 feet; thence N 88 53' W 511.58 feet to the point of beginning and containing 5.08 acres more or less. *Subject to the Lease Agreement and encumbrances per- mitted by the Indenture (including an oustanding first mortgage and assignment of interest in the original amount of $1,465,000 dated December 22, 1975). TI -16 2. All machinery, equipment and other personal property of r I every kind and nature whatever acquired by the City and paid for out of the Construction Fund (identified below) and placed on or in the land and/or improvements described in "1" above, or elsewhere, including, without limitation, all replacements and substitutions which become the property of the City pur- suant to the provisions of the Lease Agreement. All such machinery, equipment and other personal property shall be "identified in a ledger, one copy of which shall be filed with the Trustee and one copy maintained by the Company on the mortgaged property and shall be marked by an appropriate tag or device as being the property of the Lessor (City); provided, hpwever, the failure to so mark the property shall not prevent any item from becoming part of the Project machinery and equip- ment if, pursuant to the provisions of the Lease Agreement, it should be a part thereof. 3. The Lease Agreement and all rights, but not obligations of the City thereunder and all revenues and income derived by the City from the mortgaged property (defined hereinafter), includ- ing, without limitation, all rentals received by the City from the leasing of the mortgaged property and in particular the rentals and profits received under and pursuant to the Lease Agreement. 4. The Bond Fund and the Construction Fund, and all moneys and investments therein but subject to the provisions of this Indenture pertaining thereto, including the making of disburse- ments therefrom. TI -17 5. All guaranty of payment or performance agreements, if any, with respect to obligations incumbent upon the City or the r I Company pursuant to this Trust Indenture, the Lease Agreement or any agreements executed in connection therewith. 6. Any and all other property of every kind and nature from time to time which was heretofore or hereafter is by delivery or by writing of any kind conveyed, mortgaged, pledged, assigned, or transferred, as and for additional security hereunder, by the City or by any other person, firm or corporation, to the Trustee, which is hereby authorized to receive any and all such property at -'.any time and at all times and to hold and apply the game 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 in- tended so to be, to the Trustee and its successors in said trusts 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 holders and owners of the said Note and Series 1980 Bonds and interest coupons thereunto attached issued under and secured by this Indenture without privilege, priority or distinction as to lien or otherwise of any of said Bonds or coupons thereto attached over any of the other of said Note and Series 1980 Bonds; provided, however, that if the City, its successors or assigns, shall well and truly pay, or cause to be paid, the principal of the Note and Series 1980 Bonds and the interest due thereon, at the times and in the manner provided in the Note and Series 1980 Bonds and the interest coupons appertaining to the Note and Series 1980 TI -18 Bonds, respectively, according to the true intent and meaning thereof, and shall make the payments into the Bond Fund as required under Article V hereof or shall provide, as permitted r hereby, for the payment thereof by depositing or causing to be deposited with the 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 to the 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 INDENTURE FURTHER WITNESSETH that, and it is express- ly declared, the Note and all Bonds issued and secured here- and@r are to be issued, authenticated and delivered and all said revenues and income hereby pledged are to be dealt with and disposed of under, upon and subject to the terms, condi- tions, stipulations, covenants, agreements, trusts, uses and purposes as hereinafter expressed, and the City has agreed and covenanted, and does hereby agree and covenant, with the Trus- tee and with the respective holders and owners, from time to time of the said Note and Bonds or coupons or any part thereof, as follows, that is to say: J TI -19 ARTICLE I DEFINITIONS Section 101 - Definitions. In addition to the words and 0 I terms elsewhere defined in this Indenture, the following words and terms as used in this Indenture shall have the following meanings: "Act No. 9" - Act No. 9 of the First Extraordinary Session of the Sixty -Second General Assembly of the State of Arkansas, approved January 21, 1960, as amended. "Additional Bonds" - Any Bonds in addition to the Series 1980 Bonds which are issued pursuant to the provisions of Section 202C of this Indenture. "Authorized Lessee Representative" - The person at the time designated to act on behalf of the Lessee by written certificate furnished to the Lessor and the Trustee containing the specimen signature of such person and signed on behalf of ti the Lessee by the President or any Vice President of the Lessee. Such certificate may designate an alternative or alternates. "Authorized Lessor Representative" - The person at the time designated to act on behalf of the Lessor by written certificate furnished to the Lessee and the Trustee containing the specimen signature of such person and signed on behalf of the Lessor by the Mayor. Such certificate may designate an alternate or alternates. "Bonds" - The City of Fayetteville, Arkansas Industrial Development Revenue Bonds - Baldwin Piano & Organ Company Project, issued under and secured by this Indenture, to be delivered in series from time to time. In addition, for pur- poses of this Trust Indenture, the term "Bonds" shall include, unless otherwise expressly provided, the Note for the interim period during which the same shall be outstanding pending issuance of the Series 1980 Bonds., TI -20 "Bond Fund" - The City of Fayetteville, Arkansas Indus- trial Development Revenue Bond Fund - Baldwin Piano & Organ Company Project, fund created by Section 501 of this Indenture into which moneys are to be deposited and out of which disbur- sements are to be made for paying the principal of, premium, if any, and interest on the Bonds in the manner and for the pur- poses specified in Article V of this Indenture. "Bond Guaranty Agreement" - The guaranty agreement between D.H. Baldwin Company, an Ohio corporation ("Baldwin"), and the "Trustee dated as of the date hereof, pursuant to which Baldwin guarantees the full and prompt payment of the principal, premiums,..if any, and interest on the Series 1980 Bonds, an executed copy is on file at the principal office of the Trustee. "Bond Registrar" - The Trustee for the time being, whether original or successor. t "Business Days" - Any day which shall not be a Saturday, Sunday, legal holiday or a day on which banking institutions in the City of New York are authorized by law or executive order to close. "City" - The City of Fayetteville, Arkansas, a munici- pality under the laws of the State of Arkansas and situated in Washington County, Arkansas. "City Clerk" or "Clerk" or "City Recorder" - The person holding the office and performing the duties of the Clerk of the City or Recorder of the City. "Excess Bond Fund Moneys" - Moneys in the Bond Fund at any time, from any source, in excess of the amounts required for payment of interest, premiums, if any, and principal that will mature prior to the next Basic Rent payment date (set forth in Section 303(a)(1) of the Lease Agreement) and interest, pre - TI -21 miums, if any, and principal of Bonds that have matured but. .= have not been presented for payment. "Government Securities" - Direct or fully guaranteed obligations of the United States of America (including any such securities issued or held in book -entry form on the books of the Department of the Treasury of the United States of America). "Holder" or "bondholder" or "owner of the Bonds" - The bearer of any Bond not registered as to principal and the registered owner of any Bond registered as to principal or as to principal and interest. "Indenture" or "Trust Indenture" - This Trust Indenture together with all indentures supplemental hereto. ' "Industrial Development Revenue Bond Construction Fund - Baldwin Piano & Organ Company Project" or "Construction Fund" - Thq fund created by Section 601 hereof into which the portion of the proceeds of the sale of the Bonds specified in Section 601 hereof is to be deposited and out of which disbursements are to be made in the manner and for the purposes specified in Article VI of the Indenture. "Lease Agreement" - The Lease and Agreement dated as of , 1980 wherein the City is Lessor and Baldwin Piano & Organ Company is Lessee, recorded in the office of the Circuit Clerk and Ex -Officio Recorder of Washington County, Arkansas, described in Section 409 hereof. "Lease Guaranty Agreement" - The guaranty agreement between D.H. Baldwin Company, an Ohio Corporation ("Baldwin") and the City dated as of the date hereof, pursuant to which Baldwin guaranties the prompt performance of the rental and other obligations of the Lessee under the Lease Agreement. "Lessee" or "Company" - Baldwin Piano & Organ Company, an Ohio corporation. The Company is -Lessee under the Lease Agree - TI -22 ment, and the reference includes any assignee pursuant to the provisions thereof, and a guarantor pursuant to the Bond Guar- anty Agreement. "mortgaged property" - The properties comprising the Project, being all of the properties leased to the Company under the Lease Agreement and all other properties which, under the terms of the Indenture, subsequently become subject to the lien of the Indenture, including the properties, interest and rights covered by the granting clauses of the Indenture. "Note" - The City of Fayetteville, Arkansas, Bond Antici- pation Note issued under and secured by the Indenture. "Note Guaranty Agreement" - The Guaranty Agreement between D.H. Baldwin Company, an Ohio corporation ("Baldwin"), and the Trustee dated as of the date hereof, pursuant to which Baldwin guarantees the full and prompt payment of the principal, pre- miums, if any, and interest on the Note, an executed copy is on file at the principal office of the Trustee. "outstanding hereunder" or "Bonds outstanding hereunder" - All Bonds which have been authenticated and delivered under the Indenture except: (a) Bonds cancelled because of payment or redemption prior to maturity; (b) Bonds for the payment or redemption of which cash or Government Securities shall have been theretofore deposited with the Trustee (whether upon or prior to the maturity or redemption date of any such Bonds) provided that if such Bonds are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given or provision satisfactory to the Trustee shall have been made therefor, or a waiver of such notice, satisfactory in form to the Trustee, shall have been filed with the Trustee; and TI -23 (c) Bonds in lieu of which others have been authenticated under Section 203 hereof. "Paying Agent" - The bank or trust company named by the City as the .olace at which the principal of and interest on the Bonds are payable. The Paying Agent is the Trustee. "Permitted Encumbrances" - (i) This Trust Indenture and the Lease Agreement; (ii) utility, access and other easements and rights -of -way, restrictions, reversions and exceptions that the Lessee certifies will not interfere with or impair the operations being conducted in the Project; (iii) such minor defects, irregularities, encumbrances, easements, rights -of -way and clouds on title as normally exist with respect to proper- ties similar in character to the Project, and as do not mater- ially impair the property affected thereby for the purpose for which it was acquired or held by the City; and, (iv) an out- standing first mortgage and assignment of interest in the original amount of $1,465,000 dated December 22, 1975. "person" - Includes natural persons, firms, associations, corporations and public bodies. "Project" - The lands, buildings, improvements and facil- ities embodied in and pertaining to the industrial project leased to the Company and being financed out of the proceeds of the Series 1980 Bonds, including the properties in the trust estate. The Project will be utilized by the Company for the conduct of its business, including, without limitation, the manufacture of such products as the Company shall determine to manufacture. "Project costs" - The costs of acquisition, construction, reconstruction and equipping the Project described in Section 203 of the Lease Agreement. a -S 1 TI -24 "revenues" - The income, charges, and moneys realized from the lease, sale or other disposition of the Project, including all rentals and other sums to be received under the Lease Agreement. "Series 1980 Bonds" - The initial series of Bonds being .issued to retire the Note under and secured by this Indenture in the principal amount of $1,200,000. "Trustee" - The Trustee for the time being, whether origi- nal or successor, with the original Trustee being Bankers Trust COmpany, New York, New York. The Trustee is also the Paying Agent and the Bond Registrar. "Trust -Estate" - The same as the mortgaged property. "Underwriter" - Edward D. Jones & Co., Maryland Heights, Missouri or such other registered broker dealer as is selected by agreement between the Lessor and the Lessee. Section 102 - Use of Words. Words of the masculine gender shall be deemed and construed to include correlative words of the feminine and neuter genders. Unless the context shall otherwise indicate the words "Bond", "coupon", "owner", "holder" and "person" shall include the plural, as well as the singular, number. s-i TI -25 ARTICLE II THE BONDS Section 201 - Authorized Amount of Bonds. No Bonds may be issued under the provisions of this Indenture except in accordance with this Article. Section 202 - Details of Bonds; Issuance of Additional Series. A. The Note shall be designated "City of Fayette- ville, Arkansas Bond Anticipation Note - Baldwin Piano & Organ Company Project". The Note bears interest at * annum and will be dated and payable on , per The principal is due Interest on the unpaid balance of the Note.is payable quarterly on the and day of of each year, commencing (except that final payment of the entire indebtedness of the Note, if not sooner paid, shall be due and payable ** ). Payments shall discharge the obligation of the City to the extent thereof. B. The Series 1980 Bonds shall be designated "City of Fayetteville, Arkansas Industrial Development Revenue Bonds - Baldwin Piano & Organ Company, Project, Series 1980," shall be in the principal amount of $1,200,000, and shall be issued at the request of the Trustee and the Company for the purpose of retiring the Note. The Series 1980 Bonds shall be dated on the date of retirement of the Note. Interest shall be payable *An amount to be negotiated by and between Baldwin Piano & Organ Company and the purchaser of the Note, which interest rate may fluctuate (subject to the limitation that it shall not exceed 10% per annum). **(A date not more than two years following the date of the Note). J S.. TI -26 •semiannually commencing six months following the date of the Series 1980 Bonds. They shall be numbered consecutively from 1 to 240, inokusive, shall be in the denomination of $5,000 each and the principal thereof shall mature, unless sooner redeemed in the manner in this Indenture set forth, twenty-five years from the date thereof. C. Additional Bonds may be subsequently issued at any time for the purpose of paying costs, expenses and expenditures .in connection with acquisition, construction and equipping of the Project or any additional facilities (land, building, machines, equipment or other facilities) which may, at any time, be subsequently acquired, constructed or equipped and the expenses of issuing the Additional Bonds. Such Additional Bonds shall be dated, interest shall be payable semiannually, may\have serial maturities or all may have the same maturity, or a combination thereof, may contain provisions for redemption prior to maturity and may contain such other provisions, all as may be set forth in the supplemental indenture authorized by ordinance of the City Council and executed and delivered in connection with each issue of Additional Bonds. Additional Bonds shall be secured by this Indenture and shall rank on a parity of security (excluding the Bond Guaranty Agreement which may not apply to the Additional Bonds) in all respects with the Bonds of previously issued series. The details concerning the Additional Bonds shall be embodied in a supplemental trust indenture by and between the City and the Trustee, and an executed copy of each supplemental trust indenture, together with a certified copy of each authorizing ordinance, shall be filed with the Trustee prior to delivery of any such Additional Bonds. In addition there must be filed with the Trustee (i) an executed copy of a supplemental lease agreement increasing the TI -27 Basic Rent (defined in the Lease Agreement) or otherwise pro- viding for payment of the amount necessary to provide for the r% prompt payment of the principal of and interest on the Addi- tional Bonds of the particular series then being issued, (ii) supplemental guaranty agreement satisfactory to the parties and (iii) the opinion of counsel experienced in the field of muni- cipal bonds that the delivery of the Additional Bonds will not affect the tax exemption on the Series 1980 Bonds. When there shall have been filed with the Trustee a certified copy of the ordinance, an executed copy of the supplemental trust inden- ture, an executed copy of the supplemental lease agreement, and a supplemental guaranty agreement, all as aforesaid, and an opinion of counsel satisfactory to the Trustee approving the legality of Additional Bonds series then proposed to be issued, the Trustee shall authenticate the Additional Bonds when exe- cuted and delivered to it with the seal of the City affixed and deliver such Additional Bonds as provided in the supplemental trust indenture. Section 203 - Execution of Bonds; Limited Obligation. The Bonds shall be executed on behalf of the City by the Mayor (by his manual or facsimile signature) and the City Clerk (by his manual signature) thereof and shall have impressed thereon the seal of the City. The coupons attached to the Bonds shall be executed by the facsimile signature of the Mayor. The Mayor's facsimile signature shall have the same force and effect as if personally signed with respect to the Bonds. The Mayor shall file the certificate required by Act No. 69 of the Acts of Arkansas of 1959 and otherwise comply with the provisions of that Act, and his facsimile signature shall have the same force and effect as if he had personally signed. The Bonds, together with interest thereon, shall be payable from the "Bond Fund," TI -28 as hereinafter set forth, and shall be a valid claim of the holders thereof only against such fund and the revenues pledged to such fund (but in addition shall be secured by a lien on and security interest in the mortgaged property, subject to the Lease Agreement and Permitted Encumbrances), which revenues are hereby pledged and mortgaged for the equal and ratable payment of the Bonds (principal, premiums, if any, and interest) and shall be used for no other purpose than to pay the principal of, premiums, if any, and interest on the Bonds, and the Paying Agent's fees, except as may be otherwise expressly authorized in this Indenture. The Bonds and interest thereon shall not constitute_an indebtedness of the City within the meaning of any constitutional or statutory provision and shall never constitute an obligation of or a charge against the general credit or taxing powers of the City. In case any officer whose signature or facsimile of whose signature shall appear on the Bonds shall cease to be such officer before the delivery of such Bonds, such signature or such facsimile shall nevertheless be valid and sufficient for all purposes, the same as if he had remained in office until delivery. Section 204 - Authentication. Only such Bonds as shall have endorsed thereon a Certificate of Authentication substan- tially in the form hereinabove set forth duly executed by the Trustee shall be entitled to any right or benefit under this Indenture. No Bond and no coupon appertaining to any Bond shall be valid and obligatory for any purpose unless, and until such Certificate of Authentication shall have been duly exe- cuted by the Trustee, and such Certificate of the Trustee upon any such Bond shall be conclusive evidence that such Bond has been authenticated and delivered under this Indenture. The Trustee's Certificate of Authentication on any Bond shall be I 1 TI -29 deemed to have been executed if signed by an authorized officer of the Trustee, but it shall not be necessary that the same officer sign the Certificate of Authentication on all of the Bonds issued hereunder. Before authenticating or delivering any Bonds, the Trustee shall detach and cancel all matured coupons, if any, appertaining thereto, and such cancelled coupons shall be cremated by the Trustee. Section 205 - Form of Bonds. The Bonds issued under this Indenture and the coupons attached thereto shall be substan- tially in the form hereinabove set forth with such appropriate variations, omissions and insertions as are permitted or re- quired by.this Indenture. Section 206 - Delivery of Bonds. Upon the execution and delivery of this Indenture, the City shall execute and deliver to the Trustee and the Trustee shall authenticate the Note and del'iver it to the purchaser upon payment of the purchase price plus accrued interest from the date of the Note to the date of delivery, and the Trustee shall be entitled to rely upon any certificate, ordinance or resolution as to the purchase price and the purchasers. Upon the request of the Company, the City shall execute and deliver to the Trustee and the Trustee shall authenticate the Series 1980 Bonds and deliver them to the purchasers upon payment of the purchase price plus accrued interest from the date of the Bonds to the date of delivery, and the Trustee shall be entitled to rely upon any certificate, ordinance or resolution as to the purchase price and the pur- chasers. Section 207 - Indenture Superior to Laborer's, Etc. Liens, This Indenture is given in order to secure funds to pay for new construction and by reason thereof, it is intended that this Indenture shall be superior to any laborers', mechanics' or materialmen's liens which may be 'placed upon the Project. TI -30 Section 208 -Mutilated, Destroyed or Lost Coupons or Bonds. In case any Bond issued hereunder shall become mutilated or be destroyed or lost, the City shall, if not then prohibited by Sr law, cause to be executed and the Trustee may authenticate and deliver a new Bond of like date, number, maturity and tenor in exchange and substitution for and upon cancellation of such mutilated Bond and its interest coupons, or in lieu of and in substitution for such Bond and its coupons destroyed or lost, upon the holder's or owner's paying the reasonable expenses and charges of the City and the Trustee in connection therewith, and, in the case of a Bond destroyed or lost, his filing with the Trustee evidence satisfactory to it that such Bond and coupons were destroyed or lost, and of his ownership thereof, and furnishing the City and Trustee with indemnity satisfactory to them. The Trustee is hereby authorized to authenticate any sucnew Bond. In the event any such Bonds or coupons shall have matured, instead of issuing a new Bond or coupon, the City may pay the same without the surrender thereof. Section 209 - Registration of Principal and Interest. Title to any Bond, unless such Bond is registered in the manner herein provided, and to any interest coupon shall pass by delivery in the same manner as a negotiable instrument payable to bearer. The City shall cause books for the registration and for the transfer of the Bonds as provided in this Indenture to be kept by the Trustee as Bond Registrar. At the option of the bearer, any Bond may be registered as to principal alone on such books, upon presentation thereof to the Bond Registrar, which shall make notation of such registration thereon. Any Bond registered as to principal may thereafter be transferred only upon an assignment duly executed by the registered owner or his attorney or legal representative in such form as shall TI -31 be satisfactory to the Bond Registrar, such transfer to be made on such books and endorsed on the coupon by the Bond Registrar. The principal of any Bond registered as to principal alone, ' shall be payable only to or upon the order of the registered owner or his legal representative, but the coupons appertaining to any Bond registered as to principal shall remain payable to bearer notwithstanding such registration, until such time as such Bond is redeemed, provided, that if upon registration of any such Bond, or at any time thereafter while registered in the name of the owner, the unmatured coupons attached evid- encing interest to be thereafter paid thereon shall be sur- rendered to, the Bond Registrar a statement to the effect will be endorsed thereon and thereafter interest evidenced by such surrendered coupons may be paid by check or draft by the Bond Registrar at the times provided therein to the registered owner by fail to the address shown on the registration books. Each of the Bonds when converted as aforesaid into a Bond registered as to both principal and interest may not be reconverted into a coupon Bond. No charge shall be made to any bondholder for the privilege of registration and transfer hereinabove granted, but any bondholder requesting any such registration or transfer shall pay any tax or other governmental charge required to be paid with respect thereto. As to any Bond registered as to principal, the person in whose name the same shall be regis- tered shall be deemed and regarded as the absolute owner thereof for all purposes and payment of or on account of the principal of any such Bond shall be made only to or upon the order of the registered owner thereof, or his legal represent- ative, and neither the City, the Trustee, nor the Bond Regis- trar shall be affected by any notice to the contrary but such registration may be changed as herein provided. All such TI -32 payments shall be valid and effectual to satisfy and discharge the liability upon such coupon Bond to the extent of the sum or sums so paid. The City, the Trustee, the Bond Registrar and the Paying Agent may deem and treat the bearer of any Bond which shall not at the time be registered as to principal, and the bearer of any coupon appertaining to any Bond, whether such Bond be registered as to principal or not, as the absolute owner of such Bond or coupon, as the case may be, whether such Bond or coupon shall be overdue or not, for the purpose of receiving payment thereof and for all other purposes what- soever, and neither the City, the Trustee, the Bond Registrar nor the Paying Agent shall be affected by any notice to the contrary. Section 210 - Cancellation. All Bonds and coupons which are paid, either at maturity or redemption prior to maturity (ingluding unmatured coupons to any Bond which is redeemed), shall be cancelled and cremated, shredded or otherwise disposed of. Upon such cremating, shredding or other disposition, the Trustee shall execute and forward to the City and the Company an appropriate certificate describing the Bonds involved and the manner of disposition. e I TI -33 ARTICLE III REDEMPTION OF BONDS BEFORE MATURITY Section 301 - Redemption of Series 1980 Bonds. The Series 1980 Bonds shall be subject to redemption prior to maturity as follows: (1) The Series 1980 Bonds shall be redeemed from the proceeds of condemnation of all or substantially all of the •. Project or from the Lessee exercising an option to purchase pursuant to the provisions of Section 2001 A of the Lease Agreement, in whole but not in part, at any time, at a redemp- tion price equal to the principal amount being redeemed plus •accrued interest to the redemption date or, if redeemed from any other sburce on any interest payment date on or after the date five (5) years following the date of the Series 1980 Bonds, at the optional redemption price to be in effect as of the next succeeding interest payment date set forth in (3) hereof. (2) In the event of a "Determination of Taxability," as hereinafter defined, the Series 1980 Bonds shall be redeemed in whole from the proceeds of the Company's payments pursuant to the provisions of Section 1905 of the Lease Agreement, at any time, at a redemption price equal to the following: (a) The principal amount plus an amount equal to one years interest on the then outstanding Bonds plus accrued inter- est to the redemption date; plus (b) An additional amount equal to 2.00% of amount of all Bonds then outstanding for e period, or any part thereof, from the date months after the time of the occurrence of Taxability, as hereinafter defined, to the demption. the principal ach three months twelve (12) the Event of date of re - A "Determination of Taxability" shall mean any deter- mination, decision or decree made in regard to Section 103 of the Code, by the Commissioner or any District Director of Internal Revenue, or, if there is an appeal from any such determination by a Commissioner or District Director, when a f 1 TI -34 final administrative or judicial determination has been made, or by a final decision of any court of competent jurisdiction, that the interest payable on the Bonds is includable in the gross income' of the holders of the Bonds (other than a holder who is a substantial user or related person as such are defined in the Code) by virtue of the occurrence of an Event of Taxa- bility as defined below. An Event of Taxability (the "Event"), shall mean the occurrence of any event which would cause Sec- tion 103(b)(6)(D) of the Code to no longer be applicable to the Bonds, which the Determination shall have found to have occurr- ed, with the result that the interest payable on the Bonds becomes includable in the gross income of the holders of the fonds (other than a holderwho is a substantial user or related person as such are defined in the Code). (3) The Series 1980 Bonds may be redeemed on and after the date five (5) years from the date thereof at the option of the City, from funds from any other source, in whole or in part, on any interest payment date, in inverse order of maturity (Bonds within a maturity shall be redeemed in such manner as the Trustee shall deem to be fair and equitable), with there to be no partial redemption of any Bond, at a redemption price equal to the principal amount of the Bonds being redeemed plus accrued interest to the date of redemption and plus a premium of the principal amount of the Bonds being redeemed as follows: TI -35 Redemption Date* Redemption* (Inclusive) Price During the 6th 12 month period following date of Bonds 105.00% 7th 104.50% 8th 104.00% 9th 103.50% 10th 103.00% 11th 102.50% 12th 102.00% 13th 101.50% 14th 101.00% 15th 100.50% 16th and thereafter 100.00% (4) At any time after the date twelve months following the date of the Series 1980 Bonds any Series 1980 Bond which is registered as to principal and interest may be presented to the Trustee for payment by the City prior to maturity on the terms and subject to the conditions following: (a) The aggregate principal amount of Series 1980 Bonds which must be redeemed by the City in each successive twelve month period beginning on the date twelve months following the date of the Series 1980 Bonds may not exceed (1) $50,000 for all Bondholders and (ii), except as provided in paragraph (d) hereof, $10,000 for any single Bondholder. (b) Requests for redemption will be honored in the order of their receipt by the Trustee, except for requests presented by the personal representative or surviving joint tenant(s) of a deceased holder, as described in paragraphs (c) and (d) of this provision, which will be given priority over other re- quests in the order of their receipt. For purposes of this *(Unless otherwise agreed to between the City, the Company and the Underwriter at the time of issuance of the Series 1980 Bonds). r: TI -36 provision, such requests are deemed received by the Trustee at such time as there has been received in the principal office of the Trustee (i) the Bonds for which redemption is sought and any coupons` appertaining thereto and (ii) either (A) a written request for redemption in the form satisfactory to the Bond Registrar signed by the registered holder of the Bond as evidenced in the books of the Bond Registrar, or the duly authorized attorney of such person, or (B) in the case of a request made by the administrator, executor or personal re- presentative, by the surviving joint tenant or a deceased owner or by any other person not the registered holder of a Bond, such documents and evidence of authority as the Trustee may require, including when appropriate, but not limited to, a certificate of death as to any deceased Bondholder, inheritance tax of estate tax releases or waiver and certified copies of letters of appointment of any executor, administrator, guardian or personal representative. (c) Receipt of requests for redemption and of the accompanying Bonds shall be acknowledged by the Trustee. (d) Requests for redemption made by the duly appointed and acting administrator, executor or personal representative of the estate of deceased bondholder, or by the surviving joint tenant(s) of a deceased Bondholder shall be subject to the aggregate $50,000 per year limitation but not to the individual $10,000 per year limitation set out in paragraph (a) hereof. Bonds which under this paragraph (d) qualify for redemption will be paid within ninety days after the date of their receipt by the Trustee. (e) Except as provided in paragraph (d) hereof, the Trustee will pay, on the last day of each successive twelve month period set out in'4(a) above (or if a holiday, the r I TI -37 business day next following such date) of each year in which requests for redemption complying with this provision have been received by the Trustee not less than ten days prior to such payment date (or remain on the books from a prior year pursuant to paragraph (g) of this provision), the principal amount, and accrued interest to such date of payment, of each Bond to be redeemed hereunder. (f) Any request for redemption made under this provision may be withdrawn at any time prior to such redemption except during the period commencing ten days prior to the date of payment in accordance with the terms hereof and ending with the date of payment fixed for the Bonds covered by such request. (g) The Trustee shall maintain at its principal offices a register in which it shall record, the order of receipt, all requests for redemption of Bonds received by the Trustee under this provision. Unless withdrawn, all such requests shall remain in effect, during the year in which they are received and thereafter from year to year, until the Series 1980 Bonds which are the subject of such request have been redeemed. Section 302 - Notice. Except with respect to the Note, the Trustee, at the expense of the City, shall publish notice of the call for redemption one time in a newspaper published in the City of Little Rock, Arkansas, and having a general cir- culation throughout the State of Arkansas, which publication shall not be less than thirty (30) days prior to the date of redemption. In addition, the Trustee, at the expense of the City, shall mail notice of the call for redemption by regis- tered or certified mail placed in the mails not less than thirty (30) days prior to the date fixed for redemption to the registered owner of any Bond called for redemption that is ri 1 TI -38 registered as to principal, or as to principal and interest, addressed to such registered owner at his registered address and to each holder of a bearer Bond called for redemption whose name and address is shown on the list of bondholders maintained by the Trustee pursuant to Section 408 hereof. In the event that all of the Bonds called for redemption are registered as .to principal, or as to principal and interest, notice in writing by registered or certified mail to the owner or owners thereof not less than thirty (30) days prior to the date fixed for redemption shall be sufficient, and published notice of the call for redemption need not be given. Each notice shall specify the numbers and the maturities of the Bonds being called, and the date on which they shall be presented for payment. Failure or defects in respect of the aforementioned notifications by mail shall not affect the validity of such redtemption. After the date specified in such call, the Bond or Bonds so called will cease to bear interest provided funds for their payment have been deposited with the Trustee, and, except for the purpose of payment, shall no longer be protected by the Indenture and shall not be deemed to be outstanding under the provisions of the Indenture. Section 303 - Redemption of Subsequent Series. The Bonds of any series issued under the provisions of Section 202 C hereof may be subject to redemption, in whole or in part, in such manner, at such times and at such prices as may be pro- vided for in the ordinance authorizing their issuance. Section 304 - Unpaid Coupons. All unpaid coupons which appertain to Bonds so called for redemption and which shall have become payable on or prior to the date of redemption shall f I TI -39 continue to be payable to the bearers severally and respect- ively upon the presentation and surrender of such coupons. 4 - Such coupons bearing maturity dates after the date of redemp- tion shall be cancelled and shall be deemed to have been paid and retired. Section 305 - Redemption of Note. The Note shall be subject to redemption by the City prior to maturity at any time upon not less than five (5) Business Days notice as provided herein. Notice of redemption shall be mailed by registered or certified mail to the Payee and placed in the mail not less than five (5) Business Days prior to the date fixed for•redemption. After the date specified in such call, the Note so called will cease to bear interest provided funds fpr its payment have been deposited with the Trustee, and, except for the purpose of payment, shall no longer be pro- tected by the Indenture and shall not be deemed to be out- standing under the provisions of the Indenture. TI -41 ARTICLE IV GENERAL COVENANTS Section 401 - Payment of Principal and Interest. The City covenants that it will promptly pay or cause to be paid the principal of, premiums, if any, and interest on every Bond issued under this Indenture at the place, on the dates and in 4' the manner provided herein and in said Bonds, and in the coupons appertaining thereto according to the true intent and meaning thereof. The principal, premium, if any, and interest are payable solely from revenues derived from the Project (as defined herein), which revenues are hereby specifically pledged to the payment thereof in the manner and to the extent herein specified, and nothing in the Bonds or coupons or in this 'Indenture should be considered as pledging any other funds or astsets of the City (except the securing of the indebtedness evidenced by the Bonds and coupons by a lien on and security interest in the mortgaged property, subject to the Lease Agree- ment and Permitted Encumbrances). Anything in this Indenture to the contrary notwithstanding, it is understood that whenever the City makes any covenants involving financial commitments, including, without limitation, those in the various sections of this Article IV, it pledges no funds or revenues other than those provided for in the Lease Agreement and the revenues derived from the avails of the mortgaged property as provided herein, but nothing herein shall be construed as prohibiting the City from using any other funds. Section 402 - Performance of Covenants.. The City covenants that it will faithfully perform at all times any and all coven- ants, undertakings, stipulations and provisions contained in this Indenture, in any and every Bond executed, authenticated J TI -42 and delivered hereunder and in all ordinances pertaining r.' thereto. The City covenants that it is duly authorized under the Constitution and laws of the State of Arkansas, including particularly and without limitation Act No. 9, to issue Bonds authorized hereby and to execute this Indenture and to make the pledge and covenants in the manner and to the extent herein set forth; that all action on its part for the issuance of the Bonds and the execution and delivery of this Indenture has been duly and effectively taken; and that the Bonds in the hands of " -the holders and owners thereof are and will be valid and en- forceable obligations of the City according to the import thereof.. Section 403 - City Warrants Title; Instruments of Further ,Assurance. The City covenants that it lawfully owns and is lawfully possessed of the mortgaged property and that it has good and merchantable title and estate therein, subject to Permitted Encumbrances and the rights of the Lessee, which exceptions will not substantially interfere with the util- ization of the mortgaged property for the purposes intended, and that it warrants and will defend its title to the Trustee, its successors and assigns, for the benefit of the holders and owners of the Bonds against the claims and demands of all persons whomsoever. The City covenants that it will do, exe- cute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered, such indenture or indentures sup- plemental hereto and such further acts, instruments and trans- fers as the Trustee may reasonably require for the better assuring, transferring, mortgaging, pledging, assigning and confirming unto the Trustee the mortgaged property. Section 404 - Payments of Taxes, Charges, Etc. The City covenants that it will promptly cause to be paid all lawful r 1 TI -43 taxes, charges, assessments, imposts and governmental charges at any time levied or assessed upon or against the mortgaged property, or any part thereof, which might impair or prejudice the lien-apd priority of this Indenture; provided, however, that nothing contained in this Section 404 shall require the City to cause to be paid any such taxes, assessments, imposts or charges so long as the validity thereof is being contested in good faith and by appropriate legal proceedings. It is understood that the City has made provisions in the Lease Agreement for the payment of such taxes, charges, assessments, imposts and governmental charges, pursuant to the terms of which the -Lessee is obligated to pay the same as set forth in the Lease Agreement, and so long as the Lease Agreement is in force and effect the City shall be deemed to be in compliance with its obligations under this Section 404. Section 405 - Obligations to Maintain and Repair. The City covenants that it will at all times cause the mortgaged property to be maintained, preserved and kept in good con- dition, repair and working order, and that it will from time to time cause to be made all needed repairs so that the operation and business pertaining to the mortgaged property shall at all times be conducted properly and so that the mortgaged property shall be fully maintained. It is understood that the City has made provisions in the Lease Agreement for such maintenance, pursuant to the terms of which the Lessee is obligated to maintain the mortgaged property as set forth in the Lease Agreement, and so long as the Lease Agreement is in force and effect the City shall be deemed to be in compliance with its obligations under this Section 405. e I TI -44 Section 406 - Recordation of Trust Indenture and Lease Agreement. The Lease Agreement provides that the Lessee will cause this Indenture, the Lease Agreement, and all instruments supplemental thereto, to be kept, recorded, and filed in such manner and in such places (if any) as may be required by law in order fully to preserve and protect the security of the bondholders and the rights of the Trustee hereunder. Section 407 - Books of Record and Account; Inspection. The City covenants that so long as any Bonds issued hereunder and secured by this Indenture shall be outstanding and unpaid, the City will keep or cause to be kept, 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 derived from the Project. When requested by the Trustee, the City agrees to have the said books of record and account audited by an independent Certified Public Accountant. The audit report shall contain at least the following information: (a) All revenues derived from the Project and all expen- ses incurred by the City in connection with the Project; (b) All payments, deposits and credits to any payments, transfers and withdrawals from the funds created under the provisions of this Indenture; (c) The details pertaining to Bonds issued, paid and redeemed; and (d) The amounts on hand in each fund showing the respec- tive amounts to the credit of each fund and any security held therefor and showing the details of any investments thereof. The City further covenants that all books and documents relating to the Project and the revenues derived from the Project shall at all times be open to the inspection of such accountants or other agencies as the Trustee may from time to e 1 TI -45 time designate. In this regard, so long as the Lease Agree- ment is in force and effect, records furnished by the Lessor and Lessee to, or kept by, the Trustee in connection with its duties as such shall be deemed to be compliance with the • City's obligations under this Section 407. Section 408 - List of Bondholders. To the extent that such information shall be made known to the City under the terms of this Section 408, it will keep on file at the office of the Trustee a list of names and addresses of the last known •holders of all Bonds payable to bearer and believed to be held by each of such last known holders. Any bondholder may request that his name and address be placed on said list by filing a written request with the City or with the Trustee, .which request shall include a statement of the principal amount of Bonds held by such holder and the numbers of such Bonds. Neither the City nor the Trustee shall be under any responsibility with regard to the accuracy of said list. At reasonable times and under reasonable regulations established by the Trustee, said list may be inspected and copied by holders and/or owners (or a designated representative thereof) of ten percent (10%) or more in principal amount of Bonds outstanding hereunder, such ownership and the authority of any such designated representative to be evidenced to the satis- faction of the Trustee. Notice or report required herein to be given to the bondholders on such list shall also be given to the registered owners of all Bonds registered as to prin- cipal or as to principal and interest reflected on the book maintained by the Bond Registrar. e I TI -46 Section 409 - Lease Agreement Reference; Lien of Trust is Indenture Subordinate to Lease Agreement; Enforcement Obli- gations and Rights; Guaranty Agreement Reference. A. It is understood sand agreed that the Project has been leased to the Lessee under the Lease Agreement. The Lease Agreement is recorded in the office of the Circuit Clerk and Ex -Officio Recorder of Washington County, Arkansas, and an executed copy is on file in the office of the Clerk of the City and in the office of the Trustee. Reference is hereby made to the Lease Agreement for a detailed statement of the terms and conditions thereof and for a statement of the rights and obligations of the parties thereunder. The lien of this Indenture is subject and subordinate to the Lease Agreement. The City agrees, upon .the.request of the Trustee, to enforce all covenants and obligations of the Lessee under the Lease Agreement and agrees t that the Trustee, in its own name or in the name of the City, may and is hereby granted the right to enforce all rights of the Lessor and all obligations of the Lessee under and pur- suant to the Lease Agreement, whether or not the Lessor is in default in its covenant to enforce such rights and obliga- tions. TI -47 B. Baldwin has unconditionally guaranteed the prompt performance of the rental and all other obligations of the Lessee under the Lease Agreement and the Lease Guaranty Agreement is pledged -and assigned to the Trustee as security for the payment of the principal of the interest on the Note and the Series 1980 Bonds. All references herein to pledging the revenues derived from the Project or the revenues derived from the mortgaged property shall include all payments under the Lease Guaranty Agreement. Furthermore, the City agrees, upon ` the request of the Trustee, to enforce all covenants and obligations of the Guarantor under the Lease Guaranty Agreement and agrees -that the Trustee, in its own name or in the name of the City, may and is hereby granted the right to enforce all obligations of the Guarantor under the Lease Guaranty Agreement, whether or not the City is in default in its covenants to enforce said obligations. Reference is hereby made to the provisions of the Lease Guaranty Agreement for a detailed statement of the terms thereunder, including beneficiaries thereunder. Section 410 - Covenant not to Sell or Dispose of Interest in Trust Estate and Not to Encumber Except in Accordance with Lease Agreement and Trust Indenture. The City covenants that so long as any Bonds authorized by and issued under this Indenture are outstanding, it will not sell or otherwise dispose of its interest in the mortgaged property, except in accordance with the provisions of the Lease Agreement, and that it will not encumber the same, or any part thereof, or its interest therein, or create or permit to be created any charge or lien on the revenues derived therefrom (as defined herein), except as provided in this Indenture. P. -H TI -48 Section 411 - Obligation to Insure. The City covenants that at all times while any Bonds are outstanding, it will keep or cause to be kept the mortgaged property insured against the perils and to the extent set forth in the Lease Agreement and that the Trustee shall be named as a party insured pursuant to a standard mortgagee clause as its in- terest may appear. It is understood that the City has made provisions in the Lease Agreement for such insurance, pursuant to the terms of which the Lessee is obligated to keep the property insured as set forth in this Lease Agreement, and so long as the Lease Agreement is in force and effect, the City shall be deemed to be in compliance with its obligations under this Section 411. Section 412 - Covenant of Filings Under Section 103(b)(6) (D) of the IRC. The City covenants that it has made all necessary filings to effect an election with respect to the Bonds under Section 103(b)(6)(D) of the Internal Revenue Code of 1954, as amended, if applicable. Section 413 - Covenant Not to Violate Section 103(b) of the IRC. The City and the Trustee covenant that neither of them shall take any action or suffer or permit any action to be taken or condition to exist which causes or may cause the interest payable on the Bonds to be subject to federal income taxation. Without limiting the generality of the foregoing the City and the Trustee covenant that the proceeds of the sale of the Bonds will not be used directly or indirectly in such manner as to cause the Bonds to be treated as "arbitrage bonds" within the meaning of Section 103(c) of the Code. —i' r TI -49 ARTICLE V REVENUES AND FUNDS Section 501 - Creation of Bond Fund. There is hereby created and ordered to be established with the Trustee a trust fund of and in the name of the City to be designated "City of Fayetteville, Arkansas Industrial Development Revenue Bond Fund - Baldwin Piano & Organ Company Project" (herein so- metimes referred to as the "Bond Fund"). Section 502 - Payments into Bond Fund. There shall be deposited into the Bond Fund as and when received: (a) The accrued interest, if any; (b) In accordance with the provisions of Section 603 .hereof, the amount remaining in the Construction Fund hereinafter created after all costs and ex- penses of and in connection with the Project have been paid; (c) All Basic Rent specified in Section 303(a) of the Lease Agreement; (d) All payments under the Bond Guaranty Agreement; and (e) All moneys received by the Trustee under and pur- suant to any of the provisions of the Lease Agree- ment or this Indenture which are not directed to be paid into a fund (or held) other than the Bond Fund. Furthermore, the City covenants and agrees that so long as any of the Bonds secured by this Indenture are outstanding, it will at all times deposit, or cause to be deposited, in the Bond Fund sufficient moneys from revenues and income derived from the Project (whether or not under and pursuant to the Lease Agreement) to promptly meet and pay the principal of, premium, if any, and interest on the Bonds as the same become due and payable, and to this end the City covenants and agrees that, so long as any Bonds are outstanding, it will use its best efforts to cause the Project to be continuously and efficiently operated as a revenue and income producing under- taking, and that should there be a default under the Lease 1 Ti -7u Agreement with the result that the right of possession of the mortgaged property is returned to the City, the City will -` fully cooperate with the Trustee and with the holders and registered, owners of the Bonds, to the end of fully protecting the rights and security of the holders of the Bonds, and if and when requested by the Trustee, the City shall diligently proceed in good faith and use its best efforts to secure another tenant for the mortgaged property to the end of at all times deriving sufficient revenues and income from the Project to promptly meet and pay the principal of and interest on the Bonds as the same become due and payable. Nothing herein shall be construed as requiring the City to use any funds or revenues from any sources other than funds and revenues derived from the Project for the payment of the principal of and interest on the Bonds and discharging other obligations of thetCity under this Trust Indenture, but nothing herein shall be construed as prohibiting the City from doing so. Section 503 - Use of Moneys in Bond Fund. Moneys in the Bond Fund shall be used solely for the payment of the prin- cipal of, premiums, if any, and interest on the Bonds either at maturity or at redemption or purchase (in those instances when Excess Bond Fund Moneys are authorized to be used for purchase of Bonds in accordance with the provisions of the Lease Agreement or this Indenture) prior to maturity; pro- vided, however, that such provisions shall not be construed as prohibiting a refund to the Lessee under the Lease Agreement of excess Basic Rents, if any, in accordance with the pro- visions of the Lease Agreement. Section 504 - Custody of Bond Fund and Withdrawals There- from by Trustee. The Bond Fund shall be in the name of the J / 1 TI -51 City, designated as set forth in Section 501 hereof, and the City hereby irrevocably authorizes and directs the Trustee to withdraw from the Bond Fund sufficient funds to pay the prin- cipal of, premium, if any, and interest on the Bonds at maturity and redemption or purchase (in those instances when Excess Bond Fund Moneys are authorized to be used for purchase of Bonds in accordance with the provisions of the Lease Agree- ment or this Indenture) prior to maturity and to use such funds for the purpose of paying principal, premiums, if any, ,and interest in accordance with the provisions hereof pertain- ing to payment, including the making of necessary arrangements with the Paying Agent for the handling of payment by the Paying Agent. and the transfer of funds to the Paying Agent, which authorization and direction the Trustee hereby accepts. Section 505 - Non -presentment of Bonds or Coupons. In thetevent any Bonds shall not be presented for payment when the principal thereof becomes due, either at maturity or otherwise, or at the date fixed for redemption thereof, or in the event any coupon shall not be presented for payment at the due date thereof, if there shall have been deposited with the Paying Agent for that purposd, or left in trust if previously so deposited, funds sufficient to pay the principal thereof, together with all interest unpaid and due thereon, to the date of maturity thereof, or to pay such coupon, as the case may be for the benefit of the holder thereof or 1the holder of such coupon, all liability of the City to the holder thereof for the payment of the principal thereof, premium, if any, and interest thereon, or to the holder of said overdue coupon for the payment thereof, as the case may be, shall forthwith cease, determine and be completely discharged, and thereupon TI -52 it shall be the duty of the Paying Agent to hold such fund or funds, without liability for interest thereon, for benefit of the holder of such Bond, or the holder of such coupon, as the case may be, who shall thereafter be restricted exclusively to such fund or funds, for any claim of whatever nature on his part under this Indenture or on, or with respect to, said Bond or coupon. Section 506 - Fees, Charges and Expenses of Trustee Paying Agent and Bond Registrar. It is understood and agreed that pursuant to the provisions of Section 303(b) of the Lease Agreement, the Lessee agrees to pay as Additional Rent the fees, expenses and charges of the Trustee, Paying Agent and Bond Registrar as authorized and provided by this Indenture and the fees, expenses and charges of the City as authorized, required and provided by this Indenture and by the Lease Agreement. The Lessee is to make payments on statements rendered by the Trustee or by the City as appropriate. All such Additional Rent payments under the Lease Agreement which are received by the Trustee shall not be paid into the Bond Fund, but shall be set up in separate accounts appropriately designated to identify the particular account and shall be expended solely for the purpose for which such payments are received, and the Trustee hereby agrees to so establish said accounts and to make payment therefrom for said purposes. Section 507 - Moneys to be Held in Trust. All moneys required to be deposited with or paid to the Trustee under any provision of this Indenture shall be held by the Trustee in trust, and except for moneys deposited with or paid to the Trustee for the redemption of Bonds, notice of which redemption has been duly given, shall, while held by the Trustee, consti- tute part of the trust estate and be subject to the lien TI -53 hereof. Any moneys received by or paid to the Trustee pur- suant to any provisions of the Lease Agreement calling for the Trustee to hold, administer and disburse the same in accord- ance with the specific provisions of the Lease Agreement shall be held, administered and disbursed pursuant to said pro- visions, and where required by the provisions of the Lease Agreement the Trustee shall set the same aside ina separate account. The City agrees that if it shall receive any moneys pursuant to applicable provisions of the Lease Agreement, it will forthwith upon receipt thereof pay the same over to the Trustee to be held, administered and disbursed by the Trustee in accordance with the provisions of the Lease Agreement pursuant to which the City may have received the same. 'Furthermore, if for any reason the Lease Agreement ceases to b'e in -force and effect while any Bonds are outstanding, the City agrees that if it shall receive any moneys derived from the mortgaged property, it will forthwith upon receipt thereof pay the same over to the Trustee to be held, administered and disbursed by the Trustee in accordance with provisions of the Lease Agreement that would be applicable if the Lease Agree- ment were then in force and effect, and if there be no such provisions which would be so applicable, then the Trustee shall hold, administer and disburse such moneys solely for the discharge of the City's obligations under this Indenture. -1 TI -54 Section 508 -Refund to Lessee of Excess Payments. Anything herein to the contrary notwithstanding, the Trustee is authorized and directed to refund to the Lessee under the Lease Agreement all excess amounts as specified in the Lease Agreement, whether such excess amounts be in the Bond Fund or in special accounts. TI -55 ARTICLE VI CUSTODY AND APPLICATION OF PROCEEDS OF BONDS Section 601 - Deposits Into the Construction Fund. The. proceeds (other than accrued interest) of the sale of the I i Note shall be deposited in a special account of the City in the Trustee, which account shall be designated "Industrial Development Revenue Bond Construction Fund - Baldwin Piano & Organ Company Project" (the "Construction Fund"). Section 602 - Disbursements from Construction Fund. Moneys in the Construction Fund shall be disbursed by the Trustee for Project Costs as set forth in Section 203 of the Lease Agreement (as it may be supplemented). Such disbursements shall be in accordance with and pursuant to requisitions which shall be signed by an Authorized Lessee Representative and an Authorized Lessor Representative. Each requisition shall specify:. (1) The name of the person, firm or corporation to whom payment is to be made; (2) The amount of the payment; (3) The purpose of the expenditure; and (4) That the disbursement is for a proper item of Project Costs. In addition, in the case of disbursements to make payment or reimbursement for Project machinery and equipment, as defined in the Lease Agreement, the requisition shall contain a descrip- tion of the Project machinery and equipment that is sufficient to perfect the security interest of the Trustee therein under the provisions of Article Nine of the Arkansas Uniform Commer- cial Code, regarding the form and content of financing state- ments. The Trustee shall keep records concerning and reflecting all disbursements from the Construction Fund and shall file an TI -56 accounting of disbursements if and when requested by the City or by the Lessee. The Trustee shall make payment from the Construction Fund pursuant to and in accordance with said requisitions. Section 603 - When all Project Costs are Paid Balance Used or Transferred to Bond Fund. Whenever the City and the Lessee jointly notify the Trustee in writing (which may be by the same writing or in different writings) that any balance remaining in the Construction Fund will not be needed for completion of the Project, the remaining balance shall be deposited in the Bond Fund and such remaining balance shall be applied by the Trustee as directed by the Lessee either (i) to a, reduction of the next thereafter accruing Basic Rent obliga- tion of Lessee under the Lease Agreement, provided, however, there shall be no application to a reduction of Basic Rent It which would affect the tax exempt status of interest on the Bonds for federal income tax purposes, or (ii) to the immediate redemption of all outstanding Bonds then callable prior to maturity to the extent such remaining balance is not applied to a reduction of Basic Rent or (iii) a combination of (i) and (ii). Any portion of the balance deposited in the Bond Fund not applied as above provided to a reduction of Basic Rent because such application would affect the tax exempt status of interest on the Bonds for federal income tax purposes or otherwise, or to the immediate redemption of Bonds prior to maturity because the amount of callable Bonds was less than the balance available for such redemption, shall be deposited in a special account in the Bond Fund of the City to be estab- lished in the Trustee designated "Bond Redemption Account" and shall be used by the Trustee for the redemption of Bonds prior TI -57 • to maturity at the earliest possible call date(s) in accordance with the provisions of this Indenture or for the payment of Bonds 'at maturity to the extent of any excess. Moneys held for the credit of the Bond Redemption Account shall not be invested so as to produce a yield greater than the yield on the Bonds. In lieu of redemption of Bonds prior to maturity, as provided above, moneys available for such redemption may be applied to the purchase of Bonds in the open market if, prior `to such purchase, the Trustee receives an opinion of counsel experienced in the field of municipal bonds and satisfactory to the Trustee, to the effect that such purchase will not adversely affect the exemption of interest on the Bonds from federal income taxation. Section 604 - When the Series 1980 Bonds are Issued. Pro- ceeds from the sale of the Series 1980 Bonds shall be deposit- ed into the Bond Fund and immediately and simultaneously used for the sole purpose of retiring the principal of the Note. TI -58 ARTICLE VII INVESTMENTS Section 701 - Investment of Moneys in Construction Fund and Other Funds. (a) Moneys held for the credit of the Construction Fund shall, upon direction by the Authorized Lessee Representative, be invested and reinvested by the Trustee in (i) Government Securities, or (ii) certificates of deposit of banks or trust companies, including the Trustee, organized under the laws of the United States or any State thereof, having maturity dates, or subject to redemption by the holder at the option of the holder, on or prior to the dates the funds will be needed as reflected by a statement of the Authorized Lessee Representative which statement must be on file with the Trustee prior to any investment. (b) Moneys held for the credit of the Bond Fund or any othdr fund or account, to the extent practicable, shall be invested and reinvested in Government Securities which will mature, or which will be subject to redemption by the holder thereof at the option of the holder, not later than the date or dates on which the money held for credit of the particular fund shall be required for the purposes intended. The Trustee shall so invest and reinvest pursuant to written instructions from the Authorized Lessee Representative. (c) Obligations so purchased as an investment of moneys in any such fund or account shall be deemed at all times a part of such fund. Any profit and income realized from such investments shall be credited to the fund and any loss shall be charged to the fund. The Trustee shall not be responsible for losses on investments made pursuant to the terms of this Section. 3 TI -59 ARTICLE VIII POSSESSION, USE AND ASE OF MORTGAGED PROPERTY I Section 801 - City's Right to Possess, Use and Enjoy. So long as not otherwise provided in this Trust Indenture, the City and the Lessee shall be suffered and permitted to pos- sess, use and enjoy the mortgaged property and appurtenances. Section 802 - Trustee Authorized, Pursuant to Specified Conditions, in joining with City to Release Lien in Event of Partial Condemnation. The Trustee shall be authorized to and shall, when requested by the City or the Lessee, join with the City in taking the necessary steps, or, if required, to execute �� appropriate release of the lien of this Indenture, to grant sewer, utility, road and street easements over, `along, across and under the mortgaged property, provided that the location of any such easements and the nature thereof shall not interfere with the present or logical future use of the mortgaged property by the Lessee, or to execute an appropriate release of the lien of this Indenture in the case of a partial condemnation (or threat of condemnation) of the.mortgaged property covered by Section 1501 B of the Lease Agreement, and in eithercase, the Trustee shall be entitled to rely upon and act in accordance with a certificate of a duly qualified engineer, who may be an engineer employed by the Lessee, and • the prior written approval of the Lessee shall be obtained in each instance. Section 803 - Release of Certain Lands to be used in Expansion Program From Lien of Indenture. It is hereby recog- nized by the City and the Trustee that the Lessee to the extent provided in Article XXIV of the Lease Agreement, has reserved the right therein to obtain the release from the lien TI -60 of this Indenture of certain of the lands in the mortgaged property. Upon a sufficient showing to the'Trustee that the terms, provisions and conditions of the Lease Agreement per- taining to such release have been met and satisfied, the Trustee shall, and is hereby authorized and directed to, take the necessary steps to release the lands from the lien of this Indenture. Furthermore, it is recognized that the City may issue bonds (in addition to the Bonds secured by this In- denture) to finance the cost of any expansion program, and nothing in this Indenture shall be construed as prohibiting the City from issuing bonds for such purpose, from entering into a separate lease agreement with the Lessee, or entering into a supplemental lease agreement with the Lessee, or the Lessee's authorized successors and assigns, from pledging the rentals derived from any such separate lease agreement or any such supplemental lease solely to the payment of the bonds then being issued, from placing a first lien by mortgage on and pledging all revenues derived from any lands and impro- vements covered by the separate lease agreement or the supple- mental lease agreement, and on any facilities, equipment and other properties purchased, constructed, or otherwise acquired out of the proceeds of the bonds then being issued, even though some of the properties may be located on lands and improvements constituting part of the mortgaged property under this Indenture and even though some of the properties may have been released from the lien of this Indenture pursuant to the provisions of this Article VIII. Also, without releasing the lien of this Indenture, the City may place a lien upon any portion of the mortgaged property under this Indenture as security for the Bonds then being issued, or make a pledge of any of the revenues pledged under this Indenture in favor of 3 r TI -61 the Bonds then being issued, so long as any such lien on the mortgaged property covered by this Indenture and any such pledge is subordinate to the lien and pledge of this Indenture to and iit.favor of the Bonds secured hereby. Section 804 - Release of Items of Project Machinery, Equipment and Fixtures. Provided no event of default exists, any building service equipment and any items of Project ma- chinery and equipment may be removed, sold, replaced or other- wise disposed of as provided in the Lease Agreement and, without limitation, particularly in Article XXV thereof, and the Trustee shall, and is hereby authorized to, upon a showing to the Trustee of compliance with the said applicable pro- visions of the Lease Agreement pertaining to such removal, sale, replacement or disposition, take the necessary steps to release such properties from the lien of this Indenture. The proceeds of any such removal, sale or other disposition shall be handled by the Trustee in accordance with the provisions of the Lease Agreement, incuding, without limitation, the pro- visions of Article XXV thereof. Any equipment, machinery, fixtures and personal property obtained in exchange or in lieu of any property sold, removed or disposed of under this Section 804 shall automatically become and be subject to the lien of this Indenture as if specifically mortgaged hereby. The City will, however, upon written request by the Trustee, convey the same to the Trustee by an indenture supplemental hereto in form and substance satisfactory to. the Trustee, or other appropriate instrument as requested by the Trustee, and cause the same to be recorded and filed in such manner as the Trustee requests, to secure and continue the lien of this Indenture thereon. .5 TI -62 ARTICLE IX DISCHARGE OF LIEN Section 901 - Discharge of Lien. If the City shall pay or cause to be paid to the holders and owners of the Bonds and coupons the principal, premium, if any, and interest to become due thereon at the times and in the manner stipulated therein, and if the City 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 on its part, then these presents and the estate and rights hereby granted shall cease, determine and be void, and there- upon therustee shall cancel and discharge the lien of this Indenture, and execute and deliver to the City such instru- ments in writing as shall be requisite to satisfy the lien hereof, and reconvey to the City the estate hereby conveyed, and assign and deliver to the City any property at the time subject to the lien of this Indenture which may then be in its possession, except cash held by it for the payment of the principal of, premiums, if any, and interest on the Bonds. Bonds and coupons for the payment or redemption of which moneys or Government Securities maturing on or prior to the maturity or redemption date of the Bonds shall have been deposited with the Trustee (whether upon or prior to the maturity or the redemption date of such Bonds) shall be deemed to be paid within the meaning of this Indenture; provided, however, that if such Bonds are to be redeemed prior to the maturity thereof, notice of such redemption shall have been duly given or arrangements satisfactory to the Trustee must have been made for the giving of such notice. In determining the sufficiency of the deposit there shall be considered the s TI -63 principal amount of such Government Securities and interest to be earned thereon until the maturity of such Government Secur- ities. e I The City may at any time surrender to the Trustee for cancellation by it any Bonds previously authenticated and delivered hereunder, together with any unpaid coupons thereto belonging, which the City may have acquired in any manner whatsoever, and such Bonds and coupons, upon such surrender and cancellation, shall be deemed to be paid and retired. I. TI -64 ARTICLE X DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND BONDHOLDERS IJ Section 1001 - Events of Default If any of the following events occur, subject to the provisions of Section 1013 hereof, 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 any interest on any Bond hereby secured and outstanding and the continuation of.such default for a period of ten (10) days; (b) Default in the due and punctual payment of any moneys required to be paid to the Trustee under the provisions of Article'V hereof and the continuation of such default for a period of ten (10) days; (c) Default in the due and punctual payment of the prin- cipal of, and premium, if any, on any Bond hereby secured and outstanding, whether at the stated maturity thereof, or upon proceedings for redemption thereof, or upon the maturity thereof by declaration; (d) Default in the performance or observance of any other of the covenants, agreements or conditions on its part in this Indenture, or in the Bonds contained, and the contin- uance thereof for a period of sixty (60) days after written notice to the City by the Trustee or by the holders of not less than ten percent (10%) in aggregate principal amount of Bonds outstanding hereunder. The term "default" shall mean default by the City in the performance or observance of any of the covenants, agreements or conditions on its part contained in this Indenture, or in the Bonds outstanding hereunder, exclusive of any period of grace required to constitute a default an "event of default" as hereinabove provided. TI -65 If an event of default (except for the passage of time) shall occur, the Trustee shall within five (5) days after .S• obtaining knowledge of such event of default give written notice by registered or certified mail, of such event of default to the City, the Company and Baldwin. However, in no event shall failure to give any such notice limit or otherwise affect the rights of the Trustee or Bondholders with respect to such default. Section 1002 - Acceleration Upon the occurrence of an event of default, the Trustee may, and upon the written re- quest of the holders of twenty-five percent (25%) in aggregate principal amount of Bonds outstanding hereunder, shall, by notice in writing delivered to the City, declare the principal Of all Bonds hereby secured then outstanding and the interest accrued thereon immediately due and payable and such principal and \interest shall thereupon become and be immediately due and payable. The provisions of the above paragraph are subject to the condition that if, at any time after such principal and any premium and interest shall have been so declared due and payable and prior to (a) the entry of a judgment in a court of law or equity for enforcement hereunder or (b) the appointment and confirmation thereof, of a receiver after an opportunity for a hearing by the City, and the Company, all sums payable hereunder except the principal of, and interest accrued after the next succeeding interest payment date on the Bonds which are due and payable solely by reason of said declaration shall have been duly paid and provided for by deposit with the Trustee and all existing defaults shall have been made good, including without limitation reasonable fees, charges and expenses of the Trustee and its counsel and of the holders of the Bonds, then and in every such case such payment or provision rI TI -66 for payment shall ipso facto constitute a waiver of such default and its consequences and an automatic rescission and annullment of such declaration under the above paragraph, but no such waiver or rescission shall extend to or affect any subsequent event of default or impair any rights consequent thereof. Section 1003 - Trustee's Right to Enter and Take Posses- sion. Upon the occurrence of an event of default, the City, upon demand of the Trustee, shall forthwith surrender to it the actual possession of, and it shall be lawful for the Trustee, by such officer or agent as it may appoint, to take possession of, all or any part of the mortgaged property with the books, papers and accounts of the City pertaining thereto and to hold;'operate and manage the same, and from time to time to make all needful repairs and improvements as by the Tru`stee.shall be deemed wise; and the Trustee, with or without such permission, may collect, receive and sequester the tolls, rents, •, revenues, issues, earnings, income, products and pro- fits therefrom and out of the same and any moneys received from any receiver of any part thereof pay, and/or set up proper reserves for the payment of, all proper costs and expenses of so taking, holding and managing the same, includ- ing reasonable compensation to the Trustee, its agents and counsel, and any charges of the Trustee hereunder and any taxes, and assessments and other charges prior to the lien of this Indenture which the Trustee may deem it wise to pay, and all expenses of such repairs and improvements, and apply the remainder of the moneys so received by the Trustee in accord- ance with the provisions of Section 1008 hereof. Whenever all that is due upon such Bonds and installments of interest under the terms of this Indenture shall have been paid and all TI -67 defaults made good, the Trustee shall surrender possession of such mortgaged property to the City, its successors or assigns; the same right of entry, however, to exist upon any subsequent event of default. While in possession of such mortgaged property the Trustee shall render annually to the holders and registered owners of the Bonds, at their addresses as set forth in the list re- quired by Section 408 hereof and on the bond registration book maintained by the Trustee, a summarized statement of income .and expenditures in connection therewith. Section 1004 - Other Remedies; Rights and Obligations with_' Reference to Remedies. Upon the occurrence of an event of default, the Trustee may, as an alternative, proceed either after entry or without entry, to pursue any available remedy by suit at law or in equity to enforce the payment of the principal of and interest on the Bonds then outstanding here- under, including, without limitation„ foreclosure and mandamus. If an event of default shall have occurred, and if it shall have been requested so to do by the holders of twenty- five percent (25%) in aggregate principal amount of Bonds outstanding hereunder and shall have been indemnified as provided in Section 1101 hereof, the Trustee shall be obli- gated to exercise such one or more of the rights and powers conferred upon it by this Section 1004 and by Section 1003 as the Trustee, being advised by counsel, shall deem most ex- pedient in the interests of the bondholders. TI -68 4 No remedy by the terms of this Indenture conferred upon or reserved to the Trustee (or to the bondholders) is intended to be exclusive of any other remedy, but each and every such remedy shall be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default or event of default shall impair any such right or power or shall be construed to be a waiver of any such default or event of default or acquiescence therein; and every such right and power may be exercised from time to time and as often as may be deemed expedient. No waiver of any default or event of default hereunder, whether by the Trustee or by the bondholders, shall extend to or shall affect any subsequent default or event of default or sh"all impair any rights or remedies consequent thereon. Section 1005 - Rights of Majority of Bondholders to Take Charge. Anything in this Indenture to the contrary notwithstanding the holders of a majority in aggregate princi- pal amount of Bonds outstanding hereunder shall have the right, at any time, by an instrument or instruments in writing executed and delivered to the Trustee, to direct the method and place of conducting all proceedings to be taken in connec- tion with the enforcement of the terms and conditions of this Indenture, or for the appointment of a receiver or any other proceeding hereunder; provided that such direction shall not be otherwise than in accordance with the provisions of law and of this Indenture. Section 1006 - Appointment of Receiver. Upon the occur- rence of an event of default, and upon the filing of a suit or r I TI -69 other commencement of judicial proceedings to enforce the rights of the Trustee and of the bondholders under this Inden- ture, the Trustee shall be entitled, as a matter of right, to the appointment of.a receiver or receivers of the mortgaged property and of the tolls, rents, revenues, issues, earnings, income products and profits thereof, pending such proceedings with such powers as the court making such appointment shall confer. Section 1007 - Waiver by City of Benefit of Laws and Rights of Appraisement and Redemption. In case of an event of default on its part, as aforesaid, to the extent that such rights may then lawfully be waived, neither the City nor anyone claiming through it or under it shall or will set up, 1 claim, or seek to take advantage of any appraisement, valuation, `stay, extension or redemption laws now or hereafter in force, irk order to. prevent or hinder the enforcement of this Indenture, but the City, for itself and all who may claim through or under it, hereby waives, to the extent that it lawfully may do so, the benefit of all such laws and all rights of appraisement and redemption to which it may be entitled under the laws of the State of Arkansas. ction 1008 - Application of Available Moneys. Avail- able moneys remaining after discharge of costs, charges and liens prior to this Indenture shall be applied by the Trustee 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: First: To the payment to the persons entitled thereto of all installments of interest then due, in the order of the s TI -70 maturity of the installments of such interest, and, if the amount available shall not be sufficient to pay in full any particulan installment, then to the payment ratably, according to the amounts due on such installment, to the persons entitled thereto, without any discrimination or privilege; and Second: To the payment of the interest on and the principal of the Bonds, and to the redemption of Bonds, all in accordance with the provisions of Article V of this Indenture. (b) If the principal of all the Bonds shall have become due or shall have been declared due and payable, all such moneys shall be applied to the payment of the principal and interest then due and unpaid upon the Bonds, without preference or priority of principal over interest or of interest over principal, or of any Bond over any other Bond, ratably, accord- ing to the amounts due respectively for principal and interest, to the person entitled thereto without discrimination or privilege. (c) If the principal of all the Bonds shall have been declared due and payable, and if such declaration shall there- after have been rescinded and annulled under the provisions of this Article X then, subject to the provisions of paragraph (b) of this Section 1008 in the event that the principal of all the Bonds shall later become due or be declared due and payable, the moneys shall be applied in accordance with the provisions of paragraph (a) of this Section 1008. Whenever moneys are to be applied by the Trustee pursuant to the provisions of this Section 1008, such moneys shall be applied by it at such times, and from time to time, as it shall determine, having due regard to the amount of such TI -7l moneys available for application and the likelihood of addi- tional moneys becoming available for such application in the future. Whenever the Trustee shall apply such funds, it shall fix the date (which shall be an interest payment date unless it 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 dates shall cease to accrue. The Trustee shall give such notice as it may deem appropriate of the deposit with it of any such moneys and of the fixing of any such date and shall not be required to make payment to the holder of any unpaid coupon or any Bond until such coupon or such Bond and all unmatured coupons, if any, appertaining to such Bond shall be presented to the Trustee for appropriate endorsement or for cancellation if fully paid. Section 1009 - Remedies Vested In Trustee. All rights of adtion (including the right to file proof of claim) under this Indenture or under any of the Bonds or coupons may be enforced by the Trustee without the possession of any of the Bonds or coupons or the production thereof in any trial or other pro- ceeding relating thereto and any such suit or proceeding instituted by the Trustee shall be brought in its name as Trustee, without the necessity of joining as plaintiffs or defendants any holders of the Bonds hereby secured, and any recovery of judgment shall be for the equal benefit of the holders of the outstanding Bonds and coupons. Section 1010 - Rights and Remedies of Bondholders. No holder of any Bond or coupon shall have any right to institute any suit, action or proceeding in equity or at law for the enforcement of this Indenture or for the execution of any r I TI -72 6 trust hereof or for the appointment of a receiver or any other remedy hereunder, unless a default has occurred of which the Trustee has been notified as provided in subsection (g) of Section 1'111 hereof, or of which by said subsection it is deemed to have notice, nor unless such default shall have become an event of default and the holders of twenty-five percent (25%) in aggregate principal amount of Bonds outstanding hereunder shall have made written request to the Trustee and shall have offered it reasonable opportunity either to proceed to exercise the powers hereinbefore granted or to institute such action, suit or proceeding in its own name, nor unless also they' -have offered to the Trustee indemnity as provided in Section 1101 hereof, nor unless the Trustee shall thereafter fail or refuse to exercise the powers hereinbefore granted, or to institute such action, suit or proceeding in its own name; and such notification, request and offer of indemnity are hereby declared in every such case at the option of the Trustee to be conditions precedent to the execution of the powers and trusts of this Indenture, and to any action or cause of action for the enforcement of this Indenture or for the appointment of a receiver or for any other remedy hereunder; it being understood and intended that no one or more holders of the Bonds or coupons shall have any right in any manner whatsoever to affect, disturb or prejudice the lien of this Indenture by his or their action or to enforce any right hereunder except in the manner herein provided, and that all proceedings at law or in equity shall be instituted, had and maintained in the manner herein provided for the equal benefit of the holders of all Bonds outstanding hereunder. Nothing in this Indenture contained shall, however, affect or impair the right of any e I TI -73 bondholders to enforce the payment of the principal of and interest on any Bond at and after the maturity thereof, or the obligation of the City to pay the principal of and interest on each of the fonds issued hereunder to the respective holders thereof at the time and place in said Bonds and the appurtenant coupons expressed. Section 1011 - Termination of Proceedings. In case the Trustee shall have proceeded to enforce any right under this Indenture by the appointment of a receiver, by entry or other- wise, and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adver- sely to the=Trustee, then and in every such case the City and the Trustee shall be restored to their former positions and I rights hereunder with respect to the property herein conveyed, and all rights, remedies and powers of the Trustee shall continue as if no such proceedings had been taken, except to the extent the Trustee is legally bound by such adverse deter- mination. Section 1012 - Waiver of Events of Default. The Trustee may in its discretion waive any event of default hereunder and its consequences and rescind any declaration of maturity of principal and shall do so upon the written request of the holders of a majority in principal amount of all Bonds out- standing hereunder, provided, however, that there shall not be waived (a) any event of default in the payment of the principal of any Bonds issued hereunder and outstand- ing hereunder at the date of maturity specified therein or (b) any default in the payment of the interest unless prior to such waiver or rescission all arrears of principal (due otherwise TI -74 than by declaration) and interest and all expenses of the. Trustee and Paying Agent, shall have been paid or provided for, and in case of any such waiver or rescission the City, Trustee aria the bondholders shall be restored to their former positions and rights hereunder respectively; but no such waiver or rescission shall extend to any subsequent or other default, or impair any right consequent thereon. Section 1013 - Notice of Default; Opportunity of Lessee to Correct. Anything herein, to the contrary notwithstanding, no default (other than a default under Section 1001(a), (b) and (c) hereof to which this Section 1013 shall not be appli- cable) shall constitute an event of default until actual notice of such default by registered or certified mail (with or without return receipt requested) shall be given to the Lessee, and the Lessee shall have had sixty (60) days after receipt of such notice to correct such default or cause said default to be corrected, and the Lessee shall not have corrected said default or caused said default to be corrected within said sixty (60) day period; provided, however, if said default be such that it cannot be corrected within sixty (60) days, it shall not constitute an event of default if corrective action is instituted within said sixty (60) day period and diligently pursued until the default is corrected. With regard to any alleged default concerning which notice is given to the Lessee under the provisions of this Section 1013, the City hereby names and appoints the Lessee as its attorney in fact and agent with full authority to perform any covenant or obliga- tions of the City alleged in said notice to constitute a default in the name and stead of the City with full power to 'I- TI -75 do any such things and acts to the same extent that the City could do and perform any such things and acts and with power of substitution. In this regard, it is agreed that the parties hereto have familiarized themselves with the terms and pro- visions of the Lease Agreement. Section 1014 - Rights and Remedies of Trustee and Bond- holders Subject and Subordinate to Rights of Lessee Under Lease Agreement. The rights and remedies provided in favor of the Trustee and the holders of the Bonds by the provisions of this Indenture are in each case subject to the provision that each and every such right and remedy shall be and may be exer- cised only subject and subordinate to the rights of the Lessee. t TI -76 ARTICLE XI THE TRUSTEE I 1 Section 1101 - Acceptance of Trusts. The Trustee hereby and accepts the•�trusts imposed upon it by this Indenture,agrees to act in accordance with applicable requirements of law and the following expressed terms and conditions: (a) The Trustee may execute any of the trusts or powers hereof and perform any duties required of it by or through attorneys, agents, receivers or employees, and shall be entitled to advice of counsel concerning all matters of trust hereof and its duties hereunder, and may in all cases pay reasonable compensation, to all such attorneys, agents, receivers and em- Qloyees as may reasonably be employed in connection with the trusts hereof. The Trustee may act upon the opinion or advice of any attorney, surveyor, engineer or accountant selected by it in the exercise of reasonable care, or, if selected or re- tained by the City prior to the occurrence of a default of which the Trustee has been notified as provided in subsection (g) of this Section 1101, or of which by said subsection the Trustee is deemed to have notice, approved by the Trustee in the exercise of such care. The Trustee shall not be respon- sible for any loss or damage resulting from an action or non - action in accordance with any such opinion or advice. (b) The Trustee shall not be responsible for any recital herein, or in said Bonds (except in respect to the certificate of the Trustee endorsed on such Bonds), or for the recording or re-recording, filing or re -filing of this Indenture, or for insuring the property herein conveyed or collecting any insur- TI -77 ance moneys, or for the validity of the execution by the City of this Indenture or of any supplemental indentures or ins tru ment of further assurance, or for the sufficiency of the l security £pr the Bonds issued hereunder or intended to be secured hereby, or for the value of the title of the property herein conveyed or otherwise as to the maintenance of the security hereof; except that in the event the Trustee enters into possession of a part or all of the property herein con- veyed pursuant to any provision of this Indenture, it shall use due diligence in preserving such property; and the Trustee shall not be bound to ascertain or inquire as to the perform- ance or observance of any covenants, conditions or agreements on the part of the City, except as hereinafter set forth; but the Trustee may require of the City full information and advice as to the performance of the covenants, conditions and agreements aforesaid as to the condition of the property herein conveyed. (c) The Trustee may become the owner of the Bonds and coupons secured hereby with the same rights which it would have if not Trustee. (d) The Trustee shall be protected in acting upon any notice, request, consent, certificate, order, affidavit, letter, telegram or other paper or document believed by it, in the exercise of reasonable care, to be genuine and correct and to have been signed or sent by the proper person or persons. Any action taken by the Trustee pursuant to this Indenture upon the request or authority or consent of the owner of any Bond secured hereby, shall be conclusive and binding upon all future owners of the same Bond and upon Bonds issued in ex- change therefor or in place thereof. TI -78 (e) As to the existence or non-existence of any fact or as to the sufficiency or validity of any instrument, paper or proceeding, the Trustee shall be entitled to rely upon a certificate of the City signed by its Mayor and attested by the City Clerk as sufficient evidence of the facts therein contained and prior to the occurrence of a default of which it has been notified as provided in subsection (g) of this Section 1101, or of which by said subsection it is deemed to have notice, and shall also be at liberty to accept a similar certificate to the effect that any particular dealing, trans- action or action is necessary or expedient, but may at its discretion, at the reasonable expense of the City, in every case secure such further evidence as it may think necessary or advisable but shall in no case be bound to secure the same. The Trustee may accept a certificate of the City Clerk of the City under its seal to the effect that a resolution or ordi- nance in the form therein set forth has been adopted by the City as conclusive evidence that such resolution or ordinance has been duly adopted, and is in full force and effect. (f) The permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty of the Trustee, and the Trustee shall be answerable only for its own negligence or willful default. (g) The Trustee shall not be required to take notice or be deemed to have notice of any default hereunder (except a default under Section 1001(a), (b) or (c) concerning which the Trustee shall be deemed to have notice) unless the Trustee shall be specifically notified in writing of such default by the City or by the holders of at least ten percent (10%) in aggregate principal amount of Bonds outstanding hereunder and I TI -79 all notices or other instruments required by this Indenture to be delivered to the Trustee must, in order to be effective, be delivered to the office of the Trustee, and in the absence of such notice so delivered, the Trustee may conclusively assume there is no default except as aforesaid. (h) The Trustee shall not be personally liable for any debts contracted or for damages to persons or to personal property injured or damaged, or for salaries or non -fulfill- ment of contracts during any period in which it may be in the possession of or managing the real and tangible personal property as in this Indenture provided. (i) '•At any and all reasonable times the Trustee, and its duly authorized agents, attorneys, experts, engineers, account- ants and representatives, shall have the right fully to inspect any and all of the property herein conveyed, including all books, papers and records of the City pertaining to the Project and the Bonds, and to take such memoranda from and in regard thereto as may be desired. (j) The Trustee shall not be required to give any bond or surety in respect of the execution of the said trusts and powers or otherwise in respect of the premises. (k) Notwithstanding anything elsewhere in this Indenture contained, the Trustee shall have the right, but shall not be required, to demand, in respect of the authentication of any Bonds, the withdrawal of any cash, the release of any property, or any action whatsoever within the purview of this Indenture, any showings, certificates, opinions, appraisals, or other information, or corporate action or evidence thereof, in addition to that by the terms hereof required as a condition of such action by the Trustee, deemed desirable for the purpose TI -80 of establishing the right of the City to the authentication of any Bonds, the withdrawal of any cash, the release of any property, or the taking of any other action by the Trustee. (1) Before taking such action hereunder, the Trustee may require that it be furnished an indemnity bond satisfactory to it for the reimbursement to it of all expenses to which it may be put and to protect it against all liability, except liabi- lity which is adjudicated to have resulted from the negligence or willful default of the Trustee, by reason of any action so taken by the Trustee. Section 1102 - Fees, Charges and Expenses of Trustee. The Trustee shall be entitled to payment and/or reimbursement for its reasonable fees for services rendered hereunder and all advances, counsel fees and other expenses reasonably and necessarily made or incurred by the Trustee in and about the execution of the trusts created by this Indenture and in and about the exercise and performance by the Trustee of the powers and duties of the Trustee hereunder, and for all reason- able and necessary costs and expenses incurred in defending any liability in the premises of any character whatsoever (unless such liability is adjudicated to have resulted from the negligence or willful default of the Trustee). All such fees, costs and expenses of the Trustee must be consistent with those charged by other trustees of industrial development revenue bond issues under similar circumstances at the times involved. The City has made provisions in the Lease Agreement for the payment of said reasonable and necessary advances, fees, costs and expenses and reference is hereby made to the Lease Agreement for the provisions so made. In this regard, it is understood that the City pledges no funds or revenues TI-Bi e I other than those derived from and the avails of the mortgaged property to the payment of any obligation of the City set forth in this Indenture, including the obligations set forth in this Section 1102, but nothing herein shall be construed as prohibiting, the City from using any other funds and revenues for the payment of any of its obligations under this Indenture. Upon default by the City, but only upon default, pursuant to the provisions of this Indenture pertaining to default, the Trustee shall have a first lien with right of payment prior to payment on account of principal or interest of any Bond issued hereunder upon the mortgaged property for said reasonable and necessary advances, fees, costs and expenses incurred by the Trustee. Section 1103 - Notice of Bondholders of Default. The Trustee shall be required to make demand upon and give notice to the Lessee and each registered owner of Bonds then outstand- ing and to each Bondholder of Bonds outstanding on the list maintained pursuant to Section 408 hereof as follows: (a) If the Lessee shall fail to make any payment of Basic Rent or Additional Rent on the day such payment is due and payable, the Trustee shall give notice to and make demand upon the Lessee on the next succeeding business day. (b) If a default occurs of which the Trustee is by Section 1101(g) hereof deemed to have notice or is notified by the City or by the holders of at least ten percent 10% in aggregate principal amount of Bonds then outstanding, the I -5 TI -82 Trustee shall promptly give notice to the Lessee and to the Bondholders. i-4 Section 1104 - Intervention by Trustee. In any judicial proceeding to which the City is a party and which in the opinion of the Trustee and its counsel has a substantial bearing on the interests of owners of Bonds issued hereunder, the Trustee may intervene on behalf of bondholders and shall do so if requested in writing by the owners of at least ten percent (10%) of the aggregate principal amount of Bonds outstanding hereunder. The rights and obligations of the Trustee under this Section 1104 are subject to the approval of the court having jurisdiction in the premises. Section 1105 - Successor Trustee. Any bank or trust 'company into which the Trustee may be merged, or with which it, may be consolidated, or to which it may sell or transfer its trust business and assets as a whole or substantially as a whole, or any bank or trust company resulting from any such sale, merger, consolidation or transfer to which it is a party, ipso facto, shall be and become successor trustee hereunder and vested with all of the title to the whole property or trust estate and all the trusts, powers, discretions, immunities, privileges, and all other matters as was its predecessor, without the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwith- standing; provided, however, that such successor trustee shall have capital and surplus of at least $3,000,000. Section 1106 - Resignation by Trustee. The Trustee and any successor trustee may at any time resign from the trusts hereby created by giving thirty (30) days written notice to TI -83 the City, and such resignation shall take effect at the end of such thirty (30) days, or upon the earlier appointment of a successor trustee by the bondholders or by the City. Such notice may\,be served personally or sent by registered mail. Section 1107 - Removal of Trustee. The Trustee may be removed at any time by an instrument or concurrent instruments in writing delivered to the Trustee and to the City, and signed by the owners of a majority in aggregate principal amount of Bonds outstanding hereunder. Section 1108 - Appointment of Successor Trustee; Tempo- rary Trustee. In case the Trustee hereunder shall resign or be removed., or be dissolved, or shall be in course of dissolu- tion or liquidation, or otherwise become incapable of acting hereunder, or in case it shall be taken under the control of any public officer or officers, or of a receiver appointed by the court, a successor may be appointed by the owners of a majority in aggregate principal amount of Bonds outstanding hereunder, by an instrument or concurrent instruments in writing signed by such owners, or by their attorneys in fact, duly authorized; provided, nevertheless, that in case of such vacancy the City by an instrument executed and signed by its Mayor and attested by its City Clerk under its seal, shall appoint a temporary trustee to fill such vacancy until a successor trustee shall be appointed by the bondholders in the. manner above provided; and any such temporary trustee so appointed by the City shall immediately and without further act be superseded by the trustee so appointed by such bond- holders. Every such temporary trustee and every such successor trustee shall be a trust company or bank in good standing, having capital and surplus of not less than $3,000,000. r I TI -84 Section 1109 — Acceptance by Successor Trustee. Every successor or temporary trustee appointed hereunder shall execute, acknowledge and deliver to its predecessor and also to the City an instrument in writing accepting such appointment hereunder and thereupon such successor or temporary trustee, without any further act or conveyance, shall become fully vested with all the estates, properties, rights, powers, trusts, duties and obligations of its predecessor; but such predecessor trustee shall, nevertheless, on the written request . of the City or of its successor trustee, execute and deliver an instrument transferring to such successor all the estate, properties:, rights, powers and trusts of such predecessor hereunder; and every predecessor trustee shall deliver all securities, moneys and any other property held by it as trustee hereunder to its successor. Should any instrument in writing fr�m the City be required by any successor trustee for more fully and certainly vesting in such successor the estates, rights, powers and duties hereby vested or intended to be vested in the predecessor trustee, any and all such instruments in writing shall, on request, be executed, acknowledged and delivered by the City. The resignation of any trustee and the instrument or instruments removing any trustee and appointing a successor hereunder, together with all other instruments provided for in this Article XI shall, at the expense of the City, be forthwith filed and/or recorded by the successor trustee in each recording office where the Indenture shall have been filed and/or recorded. Section 1110 - Right of Trustee to Pay Taxes and Other Charges. In case the City shall fail seasonably to pay or to cause to be paid any tax, assessment or governmental or other rl TI -85 charge upon any part of the property herein conveyed, to the extent, if any, that the City may be liable for same, the Trustee may pay such tax, assessment or governmental charge, without prejudice, however, to any rights of the Trustee or the bondholders hereunder arising in consequence of such failure; and any amount at any time so paid under this Section 1110 shall be repaid by the City from the revenues derived . from the mortgaged property upon demand with interest at 10%, and shall become so much additional indebtedness secured by this Indenture, and the same shall be given a preference in payment over any of said Bonds, and shall be paid out of the proceeds of -revenues collected from the mortgaged property if not paid by the City; but the Trustee shall be under no obligation to make any such payment unless it shall have been requested to do so by the holders of at least ten percent (10%) of the aggregate principal amount of Bonds outstanding hereunder and shall have been provided with adequate funds for the purpose of such payment. Section Ill - Trustee Protected in Relying Upon Reso- lutions, etc.. The resolutions, opinions, certificates and other instruments provided for in this Indenture may be accepted and relied upon by the Trustee as conclusive evidence of the facts and conclusions stated therein and shall be full warrant, protection and authority to the Trustee for the payment and withdrawal of cash hereunder. Section 1112 - Trustee Which has Resigned or Been Re- moved Ceases to be Pavinq Aqent and Bond Reqistrar. In the event of a change in the office of Trustee, the predecessor Trustee which has resigned or been removed shall cease to be Paying Agent and Bond Registrar and the successor trustee shall serve as the Paying Agent and Bond Registrar. r I Section 1113 - Paying Agent's and Bond Registrar's Fees and Charges. There shall be paid the standard and customary Paying Agent's and Bond Registrar's fees and charges of the Paying Agent for handling the payment of the principal of, ,S premium, if any, and, interest on the Bonds, and funds suffi- cient to pay the same shall be deposited with the Paying Agent and Bond Registrar prior to the dates on which payments are required to be made on principal and interest. Section 1114 - Appointment of Co -Trustee or Separate Trustee. The City and the Trustee shall have power to appoint and upon the request of the Trustee the City shall for such purpose join with the Trustee in the execution of all instru- ments necessary or proper to appoint another corporation or dne or more persons approved by the Trustee and satisfactory to the -Lessee, so long as there is no termination of the interest of the Lessee by virtue of an event of default or, otherwise, either to act as co -trustee or co -trustees jointly with the Trustee of all or any of the property subject to the lien hereof, or to act as separate trustee or trustees of all or any such property, with such powers as may be provided in the instrument of appointment and to vest in such corporation or person or persons as such separate trustee or co -trustee any property, title, right or power deemed necessary or desir- able., In the event that the City shall not have joined in such appointment within fifteen days after the receipt by it of a request so to do, the Trustee alone shall have the power to make such appointment. Should any deed, conveyance or instrument in writing from the City be required by the separate trustee or co -trustee so appointed for more fully certainly vesting in and confirming to him or to it such properties, rights, powers, trusts, duties and obligations, any and all rl TI -87 such deeds, conveyances and instruments in writing shall, on request, be executed, acknowledged and delivered by the City. Every such co -trustee and separate trustee shall, to the extent perttitted by law, be appointed subject to the following provisions and conditions, namely: (1) The Bonds shall be authenticated and delivered, and all powers, duties, obligations and rights con- ferred upon the Trustee in respect of the, custody of all money and securities pledged or deposited here- under, shall be exercised solely by the Trustee; and (2) The Trustee, at any time by an instrument in writing, may remove any such separate trustee or co - trustee. Every instrument, other than this Indenture, appointing any such co -trustee or separate trustee, shall refer to this Indenture and the conditions of this Article XI expressed, and upon the acceptance in writing by such separate trustee or co- tnustee, he, they or it shall be vested with the estate or property specified in such instrument, jointly with the Trustee (except insofar as local law makes it necessary for any separ- ate Trustee to act alone), subject to all the trusts, condi- tions and provisions of this Indenture. Any such separate trustee or co -trustee may at any time, by an instrument in writing, constitute the Trustee as his, their or its agent or attorney -in -fact with full power and authority, to the extent authorized by law, to do all acts and things and exercise all discretion authorized or permitted by him, them or it, for and on behalf of him, them or it and in his, their or its name. In case any separate trustee or co -trustee shall die, become incapable of acting, resign or be removed, all the estate, properties, rights, powers,' trusts, duties and obligations of said separate trustee or co -trustee shall vest in and be exercised by the Trustee until the appointment of a new trustee or a successor to such separate trustee or co -trustee. e I TI -88 ARTICLE XII SUPPLEMENTAL INDENTURES a Section 1201 - Supplemental Indentures Not Requiring Consent of•".Bondholders. The City and the Trustee may, from time to time, without the approval of any bondholder, enter into such indentures supplemental hereto (which supplemental indenture shall hereafter form a part hereof), (a) to cure any ambiguity or formal defect or omission in this Indenture or in any supplemental indenture, or (b) to grant to or confer upon the Trustee for the benefit of the bondholders any additional rights, remedies, powers, authority or security that may lawfully be granted to or conferred upon the bondholders or the Trustee or (c) to subject to the lien and pledge of this Indenture additional revenues, properties or collateral or (d) in connection with the issuance of Additional Bonds pursuant to the provisions of Section 202 B hereof. Section 1202 - Supplemental Indentures Requiring Consent of Bondholders. Subject to the terms and provisions contained in this Section 1202, and not otherwise, the holders of not less than two-thirds (2/3) in aggregate principal amount of the Bonds then outstanding shall have the right, from time to time, anything contained in this Indenture to the contrary notwithstanding, to consent to and approve the execution by the City and the Trustee of such indenture or indentures supplemental hereto as shall be deemed necessary and desirable by the City for the purpose of modifying, altering, amending, adding to or rescinding, in any particular, any of the terms or provisions contained in this Indenture or in any supplemen- tal indenture; provided, however, that nothing herein contained shall permit, or be construed as permitting (a) an extension TI -89 of the maturity of the principal of or the interest on any Bond issued hereunder, or (b) a reduction in the principal amount of any Bond or the rate of interest thereon, or (c) the creation of a lien upon the mortgaged property or a pledge of revenues pledged to the Bonds other than the lien and pledge created or otherwise permitted by this Indenture, or (d) a privilege or priority of any Bond or Bonds over any other Bond or Bonds, or (e) a reduction in the aggregate principal amount of the Bonds required for consent to such supplemental inden- ture. Nothing herein contained, however, shall be construed as making necessary the approval of bondholders of the execu- tion of ahy supplemental indenture as provided in Section 1201 of this Article. If, at any time the City shall request the Trustee to enter into any supplemental indenture for any of the purposes of this Section 1202, the Trustee at the expense of the City, shall cause notice of the proposed execution of such supple- mental indenture to be published one time in a daily newspaper published in the City of Little Rock, Arkansas, and of general circulation throughout the State of Arkansas. Also, a copy of the notice shall be mailed by first class mail to each regis- tered owner at his address on the bond registration book maintained by the Trustee and to each Bondholder on the list maintained pursuant to Section 408 hereof. Such notice shall briefly set forth the nature of the proposed supplemental indenture and shall state that copies thereof are on file at the principal office of the Trustee for inspection by bond- holders. If all outstanding Bonds are registered as to prin- cipal or as to principal and interest, notice by first class mail only shall be required and it shall not be necessary to 3 I TI -90 publish the notice. The Trustee shall not, however, be subject to any liability to any bondholder by reason of its failure to publish or.,mail such notice, and any such failure shall not affect the validity of such supplemental indenture when.con- sented to and approved as provided in this Section. If the holders of not less than two-thirds (2/3) in aggregate prin- cipal amount of the. Bonds outstanding at the time of the execution of any such supplemental indenture shall have con- sented to and approved the execution thereof as herein provided, no holder 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 the Trustee or the City from executing the same or from taking any action pursuant to the provisions thereof. Upon the execution of any such supplemental indenture, this Indenture shall be deemed to be modified and amended in accordance therewith. Section 1203 - Consent of Lessee to Supplemental Inden- tures. Anything herein to the contrary notwithstanding, a supplemental indenture under this Article XII shall not become effective unless and until the Lessee shall have consented to the execution and delivery of such supplemental indenture. In this regard, the Trustee shall cause notice of the proposed execution and delivery of any such supplemental indenture together with a copy of the proposed supplemental indenture to be mailed by certified or registered mail to the Lessee at least fifteen (15) days prior to the proposed date of execution and delivery of any such supplemental indenture. The Lessee shall be deemed to have consented to the execution and delivery of any such supplemental indenture if the Trustee receives a letter or other instrument signed by an authorized officer of the Lessee under the Lease Agreement expressing said consent. f I TI -91 ARTICLE XIII AMENDMENT TO LEASE AGREEMENT Section 1301 - Amendments to Lease Agreement Not Requir- ing Consent of Bondholders. The Trustee may from time to time, and at any time, consent to any amendment, change or modification of the Lease Agreement for the purpose of curing any ambiguity or formal defect or omission or making any other change herein, which in the reasonable judgment of the Trustee is not to the prejudice of the Trustee or the holders of the •Bonds. The Trustee shall not consent to any other amendment, change or modification of the Lease Agreement without the approval -or consent of the holders of not less than two-thirds ,(2/3) in aggregate principal amount of the Bonds at the time .outstanding, evidenced in the manner provided in Section 1401 hereof. Section 1302 - Amendments to Lease Agreement Requiring Consent of Bondholders If at any time the City or Lessee under the Lease Agreement shall request the Trustee's consent to a proposed amendment, change or modification requiring bondholder approval under Section 1301, the Trustee shall, at the expense of the requesting party, cause notice of such proposed amendment, change or modification to be published one time in a newspaper published in the City of Little Rock, Arkansas, and of general circulation throughout the State of Arkansas. Also a copy of the notice should be mailed by first class mail to each registered owner at his address on the bond registration book maintained by the Trustee and to each bond- holder on the list provided for in Section 408 hereof. Such notice shall briefly set forth the nature of such proposed amendment, change or modification and shall state that copies 3 Tt-92 of the instrument embodying the same are on file in the prin- cipal office of the Trustee for inspection by any interested bondholder. If all outstanding bonds are registered as to principal -.or as to principal and interest, notice by first class mail only shall be required and it shall not be necessary to publish the notice. The Trustee shall not, however, be subject to any liability to any bondholder by reason of its failure to publish or mail such notice, and any such failure shall not affect the validity of such amendment, change or modification when consented to by the Trustee in the manner hereinabove provided. TI -93 ARTICLE XIV MISCELLANEOUS rl Section 1401 - Consents, etc. of Bondholders. Any re- quest, direction, objection or other instrument required by this Indenture to be signed and executed by the bondholders may be in any number of concurrent writings of similar tenor and may be signed or executed by such bondholders in person or by agent appointed in writing. Proof of the execution of any such request, direction, objection or other instrument or of •the writing appointing any such agent and of the ownership of Bonds, if made in the following manner, shall be sufficient for any of'..the purposes of this Indenture, and shall be conclu- sive in favor of the Trustee with regard to any action taken py it under such request or other instrument, namely: (a) The fact and date of the execution by and person of any such writing may be proved by the certificate of any officer in any jurisdiction who by law has power to take acknowledgments within such jurisdiction that the person signing such writing acknowledged before him the execution thereof, or by an affidavit of any witness to such execution. (b) The fact of holding by any person of Bonds and/or coupons transferable by delivery and the amounts and numbers of such Bonds, and the date of the holding of the same, may be proved by a certificate executed by any trust company, bank or bankers, wherever situated, stating that at the date thereof the party named therein did exhibit to an officer of such trust company or bank or to such banker, as the property of such party, the Bonds and/or coupons therein mentioned if such certificate shall be deemed by the Trustee to be satisfactory. The Trustee may, in its discretion, require evidence that such TI -^.4 Bonds have been deposited with a bank, bankers or trust company, before taking any action based on such ownership. For all purposes of this Indenture and of the proceedings for the enforcemeri't hereof, upon such certification (deemed acceptable by the Trustee) such person shall be deemed to continue to be the holder of such Bond until the Trustee shall have received notice in writing to the contrary. Section 1402 - Limitation of Rights. With the exception of rights herein expressly conferred, nothing expressed or •mentioned in or to be implied from this Indenture, or the Bonds issued hereunder, is intended or shall be construed to give to any person or company other than the parties hereto, and the holders of the Bonds and coupons secured by this ,Indenture any legal or equitable rights, remedy or claim under or in respect to this Indenture or any covenants, conditions and provisions hereof being intended to be and being for the sole exclusive benefit of the parties hereto and the holders of the Bonds and coupons hereby secured as herein provided. Section 1403 - 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 in any jurisdiction or jurisdictions or in all jurisdictions or in all cases because it conflicts with any provisions of any constitution or statute or rule of public policy, or for any other reason, such circumstances shall not have the effect of rendering the provision in question inoperative or unen- forceable in any other case or circumstance, or of rendering any other provision or provisions herein contained invalid, inoperative or unenforceable to any extent whatever. TI -95 The invalidity of any one or more phrases, sentences, clauses or paragraphs in this Indenture contained shall not. affect thefl remaining portions of this Indenture or any part thereof. Section 1404 - Notice. It shall be sufficient service of any notice, request, complaint, demand or other paperU) on the City if the same shall be delivered to or duly mailed to the Authorized Lessor Representative by registered or certified mail, (ii) on the Lessee if the same shall be delivered to or mailed to the Authorized Lessee Representative by registered or certified mail, (iii) on the Trustee if the same shall be delivered to or mailed to the corporate trust office of the Trustee at -its principal place of business to the attention of its corporate trust officer, and (iv) on Baldwin if the same shall be delivered to or mailed to Baldwin at its principal place of business to the attention of its treasurer. Section 1405 - Arkansas Substantive Law Governs. This Indenture shall be considered to have been executed in the State of Arkansas and it is the intention of the parties that the substantive law of the State of Arkansas govern as to all questions of interpretation, validity and effect. This instrument also constitutes a security agreement under the Arkansas Uniform Commercial Code. Section 1406 - Counterparts. This Indenture may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. l TI -96 IN WITNESS WHEREOF, the City of Fayetteville, Arkansas has caused these presents to be signed in its name and behalf by its Mayor and its corporate seal to be hereunto affixed and attested by'`its City Clerk, and, to evidence its acceptance of the trust hereby created, the Trustee has caused these presents to be signed in its behalf by its Vice President and its corporate seal to be hereto affixed and attested by its Trust Officer. CITY: CITY OF FAYETTEVILLE, ARKANSAS / By: dL ,cl, Mayor ATTEST: .7 - ri City Clerk TRUSTEE: BANKERS TRUST COMPANY By: Tit ATTEST: (Title (SEAL) TI -97 (77 ACRNOPwLEDG^TENT STATE OF ARKANSAS ) COUNTY OF ) SS On this day of 19_, before me, a Notary Public, duly commissioned, qualifed and acting within and for the State and County aforesaid, appeared in person the within named and Mayor and City Clerk, respectively, of the City of Fayetteville, Arkansas, a muni- cipality of the State of Arkansas, to me personally known, who stated that they were duly authorized in their respective capacities to execute the foregoing instrument for and in the name of the municipality, and further stated and acknowledged that they had signed, executed and delivered the foregoing instrument for the consideration, uses and purposes therein mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this day of 19 s r Notary Public My commission expires: E'/ <j < (SEAL) =-9S STATE OF COUNTY OF ACKNOI.7LEDGt.iENT ) SS On this day of , 19_, before me, a Notary Public, duly commissioned, qualified and acting within and for the State and County aforesaid, appeared in person the within named and and , respectively, of Bankers Trust Company, New York, New York, to personally me personally known, who stated that they were duly authorized in their respective capacities to execute the foregoing instru- ment for and in the name and behalf of the Bank, and further stated and acknowledged that they had signed, executed and delivered the foregoing instrument for the consideration, uses and purposes therein mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this day of , 19_. My commission expires: (SEAL) otary Public 1 TI -99 IN WITNESS WHEREOF, the City of Fayetteville, Arkansas has caused these presents to be signed in its name and behalf by its Mayor and its corporate seal to be hereunto affixed and attested by',"its City Clerk, and, to evidence its acceptance of the trust hereby created, the Trustee has caused these presents to be signed in its behalf by its Vice President and its corporate seal to be hereto affixed and attested by its Trust Officer. CITY: CITY OF FAYETTEVILLE, ARKANSAS By: Mayor ATTEST: City Clerk TRUSTEE: By: ATTEST: (Title) (SEAL) BANKERS TRUST COMPANY Title TI -97 STATE OF ARKANSAS COUNTY OF ACKNOWLEDGMENT ) SS On this day of , 19 , before me, a Notary Public, duly commissioned, qualifed and acting within and for the State and County aforesaid, appeared in person the within named and Mayor and City Clerk, respectively, of the City of Fayetteville, Arkansas, a muni- cipality of the State of Arkansas, to me personally known, who stated that they were duly authorized in their respective capacities to execute the foregoing instrument for and in the name of the municipality, and further stated and acknowledged that they had signed, executed and delivered the foregoing instrument for the consideration, uses and purposes therein mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this day of My commission expires: (SEAL) 3 Notary 19 r.: I TI -98 ACKNOWLEDGMENT STATE OF ) SS COUNTY OF On this day of , 19_, before me, a Notary Public, duly commissioned, qualified and acting within and for the State and County aforesaid, appeared in person the within named and and , respectively, of Bankers Trust Company, New York, New York, to personally me personally known, who stated that they were duly authorized in their respective capacities to execute the foregoing instru- ment for and in the name and behalf of the Bank, and further stated and acknowledged that they had signed, executed and delivered the foregoing instrument for the consideration, uses and purposes therein mentioned and set forth. IN TESTIMONY WIIEREOF, I have hereunto set my hand and official seal this day of , 19_. Notary Public My commission expires: Section 3. That the Mayor and City Clerk, for and on behalf of the City be, and they are hereby authorized and directed to do any and all things necessary to effect the execution of the Indenture, its execution and acceptance by the Trustee, the performance of all obligations of the City under and pursuant to the Indenture, the execution and de- livery of the Note and Series 1980 Bonds, and the performance of all acts of whatever nature necessary to effect and carry out, the authority conferred by the Indenture and by this Ordinance. That the Mayor and City Clerk be, and they are hereby further authorized and directed, for and on behalf of the City, to execute all papers, documents, certificates and other instruments that may be required for the carrying out of such authority or to evidence the exercise thereof. Section 4. That the City is here involved with the acquisition, construction, reconstruction and equipping of industrial facilities and therefore competitive bidding is waived, pursuant to applicable laws of the State of Arkansas, including, particularly Act No. 9. Section 5. That the provisions of this Ordinance are hereby declared to be separable, and if any section, phrase or provision shall for any reason be declared to be invalid, such declaration shall not affect the validity of the remainder of the sections, phrases and provisions. Section 6. That all ordinances, resolutions and parts thereof in conflict herewith are hereby repealed to the extent of such conflict. Section 7. That there is hereby found and declared to be an immediate need for the securing and developing of industry in order to provide employment and payrolls, alleviate unem- ployment and otherwise benefit the public health, safety and } ®iG30 24 welfare of the City and the inhabitants thereof, and the issuance of the Note and Bonds authorized hereby and the taking of the other actions authorized hereby are immediately necessary for the accomplishing of these public benefits and purposes. It is, therefore, declared that an emergency exists, and this Ordinance, being necessary for the immediate preservation of the public peace, health and safety shall be in force and effect immediately upon and after its passage. PASSED: November 20, 1980 - ATTEST: kCj. .. • : (9S£A11 ) Yr C :?r�11IGATR Or RECORD ( State of ar.cansas,e SS e is city of Fayc t re Officio Gy t.. Glerk tev _1 iacoo hcra• rinS, I, Bonnie Go, C. raYc ,e -^. IL, recorder for tnc ci^yam..,: Cd cr ft._ :1-, tif} t , r r^' and t 1c s^. 1e ap' t t. by cer c'fi.,, 13 of record is mY Re;,oluao:1 pears i;1 Ordinance O \litness ''Y —�at page ` daY of hand nd seal thi 19��. ti •Y Officio Rccordet City clerk and G. APPROVED: Mayor ®1C fJ ?42 CERTIFICATE OF RECORD STATE OF ARKANSAS I SS. Washington County I, Alma L. Kollmeyer, Circuit Clerk and Ex -Officio Recorder for Washington County, do hereby certify that the annexed or fore. going p)sttrument. was file forre'cOorsim my office on tha3—day of _1� � 196-at4'.O'clocI4t4. and the same rs' duly recorded in record• at pago?: g Witness my hand and seal th' day of 14 Circuit Clerk and Ex• ficioRece e 0 By Deputy Clerk