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HomeMy WebLinkAboutOrdinance 4327 �1 fi/( tD ORDINANCE NO. 4327 CO C 0 P� 1 � lNO//LP�o�HFTa��� IDS 8 AN ORDINANCE CALLING AN ELECTION ON THE QUES"118-) 01 THEE ISSUANCE OF NOT TO EXCEED ONE HUNDRED TWENTY PIS MILLION DOLLARS ($ 125,000,000) OF CAPITAL IMPROVEMENT BOND BY THE CITY FOR THE PURPOSE OF FINANCING ALL OR A PORTION OF THE COSTS OF THE ACQUISITION, CONSTRUCTION, RECONSTRUCTION, EXTENDING, IMPROVING AND EQUIPPING OF WASTEWATER TREATMENT PLANTS, SEWERAGE, AND RELATED FACILITIES ; LEVYING A SPECIAL LOCAL SALES AND USE TAX AT THE RATE OF THREE-QUARTERS OF ONE PERCENT (0.75%) WITHIN THE CITY TO BE PLEDGED TO THE PAYMENT OF THE BONDS, WHICH LEVY SHALL CEASE UPON RETIREMENT OF THE BONDS ; CALLING AND SETTING A DATE FOR A SPECIAL ELECTION ON THE QUESTION OF THE ISSUANCE OF THE BONDS; DEFINING THE TERM "SINGLE TRANSACTION"; AND PRESCRIBING OTHER MATTERS PERTAINING THERETO. WHEREAS, the City Council of the City of Fayetteville, Arkansas recognizes and determines there is a great and pressing need to substantially increase the City's wastewater treatment capacity; and WHEREAS, if the citizens of Fayetteville elect to use a special citywide sale tax to finance this capital improvement, many millions of dollars of financing expense would be saved in comparison with financing this improvement by a large increase in sewer rates for the customers of the Fayetteville wastewater system; and WHEREAS, the City Council of the City of Fayetteville, Arkansas has determined that there is a great need for additional sources of revenue to finance capital improvements to meet the needs of the residents of the City; and WHEREAS, Title 14, Chapter 164, Subchapter 3 of the Arkansas Code of 1987 Annotated (the "Local Government Bond Act of 1985") authorizes the issuance of capital improvement bonds by cities, which bonds may be secured by the pledge of the receipts of the special citywide sales and use tax prescribed by the Local Government Bond Act of 1985; and WHEREAS, said special citywide sales and use tax is to be levied and collected only on the first $2,500 of each single transaction; and WHEREAS, an existing citywide sales and use tax is presently being levied pursuant to the Local Government Bond Act at the rate of One Percent (1 %), which levy 0 • Ord . No . 4327 expires on March 31, 2002; and WHEREAS, if approved by the electors of Fayetteville the City Council of Fayetteville, Arkansas has determined to issue its capital improvement bonds in principal amount not to exceed One Hundred Twenty-Five Million Dollars ($125,000,000) for the purpose of financing all or a portion of the costs of the acquisition, construction, reconstruction, extending, improving, and equipping of wastewater treatment plants, sewerage and related facilities, which Bonds are to be secured by the pledge of all of the receipts of a three-quarters of one percent (0.75 % ) special citywide sales and use tax, as authorized by the Local Government Bond Act; and WHEREAS, the purpose of this Ordinance is to call a special election on the issuance of the Bonds by the City of Fayetteville, and to define the term "single transaction'; NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Fayetteville, Arkansas: Section 1. That under the authority of the Local Government Bond Act and subject to the approval by the electors of the City of Fayetteville as provided in Section 3 below, there is hereby authorized the issuance of the City's capital improvement bonds in the aggregate principal amount of not to exceed One Hundred Twenty-Five Million Dollars ($125,000,000) (the "Bonds') for the purpose of financing all or a portion of the costs of acquiring, constructing, reconstructing, extending, improving and equipping wastewater treatment plants, sewerage and related facilities (the " Project" ). If the issuance of the Bonds is approved by the electors of the City, the Bonds may thereafter be issued in one or more series from time to time in an aggregate principal amount not to exceed the principal amount approved by the City's electors. If approved by the electors of the City and issued, the Bonds shall be secured by a pledge of and a lien upon all of the receipts of a three-quarters of one percent (0.75 % ) special citywide sales and use tax (the "Sales and Use Tax"), as authorized by the Local Government Bond Act. Section 2. That under the authority of the Local Government Bond Act and subject to approval by the electors of the City as provided in Section 3 below, there is hereby levied the Sales and Use Tax at the rate of three-quarters of one percent (0.75 %) on the gross receipts from the sale at retail within the City of all items which are subject to the Arkansas Gross Receipts Act of 1941, as amended (Arkansas Code of 1987 Annotated §26-52-101 et seq.), and an excise (or use) tax on the storage, use, distribution or other consumption within the City of tangible personal property purchased, leased or rented from any retailer outside the State of Arkansas after the effective date of the Sales and Use Tax for storage, use, distribution or other consumption in the City at the 2 • • Ord . 4327 rate of three-quarters of one percent (0.75 %) on the sale price of the property or, in the case of leases or rentals, on the lease or rental price, the rate of the use tax to correspond to the rate of the sale tax. The use tax portion of the Sales and Use Tax shall be collected according to the terms of the Arkansas Compensating Tax Act of 1949, as amended (Arkansas Code of 1987 Annotated §26-53-101 et seq.). The Sales and Use Tax shall be levied and collected only on the first $2,500 of each "single transaction" (as defined in Section 9 hereof). The levy and collection of the Sales and Use Tax shall commence on April 1, 2002 and shall cease upon retirement of the Bonds. Section 3. That there be, and there is hereby called, a special election to be held on Tuesday, November 6, 2001, at which election there shall be submitted to the electors of the City the question of the issuance of the Bonds. Section 4. That the question shall be placed on the ballot for the special election in substantially the following form: There is submitted to the qualified electors of the City of Fayetteville, Arkansas, the question of the issuance of capital improvement bonds in principal amount not to exceed One Hundred Twenty-Five Million Dollars [$125,000,000] (the 'Bonds") pursuant to Title 14, Chapter 164, Subchapter 3 of the Arkansas Code of 1987 Annotated (the "Local Government Bond Act of 1985") for the purpose of financing all or a portion of the costs of the acquisition, construction, reconstruction, extending, improving and equipping of the Wastewater System Improvement Project which encompasses building and equipping a second wastewater treatment plant, modifying, extending and improving the sewer collection system, reconstruction and improving the current wastewater treatment plant, making land and equipment purchases, procuring construction and professional services, obtaining regulatory approvals and permits, and doing all other necessary things to increase and improve the City of Fayetteville's wastewater treatment capacity and related facilities. If the issuance of the Bonds is approved, the Bonds shall be secured by a pledge of and lien upon all of the receipts of a special citywide sales and use tax at the rate of three-quarters of one percent (0.75 %) levied pursuant to the Local Government Bond Act (the "Sales and Use Tax"). If the issuance of the Bonds is approved, the levy and collection of the Sales and Use Tax shall commence on April 1, 2002 and shall cease upon retirement of the Bonds. 3 • • Ord . 4327 Vote on the question by placing an "X" in one of the squares following the question, either for or against: FOR the issuance of Bonds in principal amount not to exceed One Hundred Twenty-Five Million Dollars ($125,000,000) for the purpose of financing all or a portion of the costs of acquiring, constructing, reconstructing, extending, improving and equipping wastewater treatment plants, sewerage and other related improvements . . . . . . . . . . . . . . . ❑ AGAINST the issuance of Bonds in principal amount not to exceed One Hundred Twenty-Five Million Dollars [$125,000,000] for the purpose of financing all or a portion of the costs of acquiring, constructing, reconstructing, extending, improving and equipping wastewater treatment plants, sewerage and other related improvements . . . . . . . . . . . . . . . ❑ Section 5. That the election shall be held and conducted and the vote canvassed and the results declared under the law and in the manner now provided for Arkansas municipal elections unless otherwise provided in the Local Government Bond Act, and only qualified voters of the City shall have the right to vote at the election. The City Clerk is hereby directed to give notice of the special election by one advertisement in the Northwest Arkansas Times, the publication to be not less than ten (10) days prior to the date of the election. Section 6. That a copy of this Ordinance shall be given to the Washington County Board of Election Commissioners so that the necessary election officials and supplies may be provided. A certified copy of this Ordinance and a map clearly showing the boundaries of the City shall also be provided to the Director of the Department of Finance and Administration and to the Treasurer of the State of Arkansas as soon as practical. Section 7. That the results of the special election shall be proclaimed by the Mayor, and his proclamation shall be published one time in the Northwest Arkansas Times. The proclamation shall advise that the results as proclaimed shall be conclusive unless attacked in the Circuit Court of Washington County within thirty (30) days after the date of publication of the proclamation. Section 8. That the Mayor and the City Clerk, for and on behalf of the City, be, and they hereby are authorized and directed to do any and all things necessary to call and hold the special election as herein provided and, if the levy of the issuance of the Bonds is approved by the electors, to cause the Sales and Use Tax to be collected in 4 0 • Ord . 4327 accordance with the Local Government Bond Act, and to perform all acts of whatever nature necessary to carry out the authority conferred by this Ordinance. Section 9. That, for purposes of the Sales and Use Tax, the term "single transaction' is defined according to the nature of the goods purchased as follows: A. When two or more devices in which, upon which or by which any person or property is, or may be, transported or drawn, including, but not limited to, on-road vehicles, off-road vehicles or farm vehicles, whether required to be licensed or not, airplanes, water vessels, motor vehicles, non-motorized vehicles and mobile homes, are sold to a person by a seller, each individual unit, whether part of a "fleet" sale or not, shall be treated as a single transaction for the purposes of the Sales and Use Tax; B. Charges for utility services which are subject to the Sales and Use Tax, and which are furnished on a continuous service basis, whether such services are paid for daily, weekly, monthly or annually, shall be computed in daily increments, and each such daily charge increment shall be considered to be a single transaction for the purposes of the Sales and Use Tax; C. For sales of building materials and supplies to contractors, builders or other persons, a single transaction, for the purposes of the Sales and Use Tax, shall be deemed to be any single sale which is reflected on a single invoice, receipt or statement, on which an aggregate sales (or use) tax figure has been reported and remitted to the State of Arkansas; D. When two or more items of major household appliances, commercial appliances, major equipment or machinery are sold, each individual unit shall be treated as a single transaction for the purposes of the Sales and Use Tax; and E. For groceries, drug items, dry goods and other tangible personal property and/ or services not expressly covered in this Section 9, a single transaction, for the purposes of the Sales and Use Tax, shall be deemed to be any single sale which is reflected on a single invoice, receipt or statement, on which an aggregate sales tax figure has been reported and remitted to the State of Arkansas. 5 0 0 Ord . 4327 Section 10. That Kutak Rock LLP is hereby engaged as Bond Counsel and Stephens Inc. is hereby engaged as Underwriter or Financial Advisor, as appropriate, with respect to the issuance of the Bonds. The fees and expenses of Bond Counsel and the Underwriter or Financial Advisor shall be a cost of issuance of the Bonds to be paid with Bond proceeds, if allowed. Section 11. That all ordinances and parts thereof in conflict herewith are hereby repealed to the extent of such conflict. PASSED AND APPROVED this 7th day of August, 2001 . APPROVED: By -4W- &Q Z��4 : : F DAN GOODY, Mayor sok By: He _err Woodruff, City Clerk (S E A L) cJ CERTIFICATE The undersigned, City Clerk of the City of Fayetteville, Arkansas, hereby certifies that the foregoing is a true and perfect copy of an Ordinance adopted at a regular meeting of the City Council of the City of Fayetteville, Arkansas, held in Room 219 of the City Administration Building at 6:30 p.m. on August 7, 2001 . DATED: August 8, 2001 Heaer Woodruff f, City Clerk 1. Lt 6 c© Py FAYET7 r. ILLE SPECIAL ELE& ON BALLOT M M 'A= CITY OF FAYETTEVILLF BM WASHINGTON COUNTY CM NOVEMBER 6, 2001 INSTRUCTIONS TO VOTER 1 . TO VOTE YOU MUST BLACKEN - " THE OVAL ( � ) COMPLETELY - NEXT TO YOUR CHOICE. 2.USE ONLY THE PENCIL PRO- VIDED. 3. AFTER VOTING, DEPOSIT THE - BALLOT IN THE BALLOT BOX, BALLOT STUB IN STUB BOX. r 0 There is submitted to the qualified electors of the City of Fayetteville, Arkansas, the question of the issuance of capital improvement bonds in prin- cipal amount not to exceed One hun- dred Twenty-Five Million Dollars [$125,000,000] (the "Bonds°) pursuant - to Title 14, Chapter 164, Subchapter 3 of the Arkansas Code of 1987 Annotated (the "Local Government Bond Act of 1985") for the purpose of financing all or a portion of the costs of the acquisition, construction, recon- struction, extending, improving and equipping of the Wastewater System Improvement Project which encom- passes building and equipping a sec- ond wastewater treatment plant, modi- 49 fying, extending and improving the sewer collection system, reconstruc- 4, tion and improving the current waste- water treatment plant, making land u and equipment purchases, procuring construction and professional ser- M 43 M vices, obtaining regulatory approvals and permits, and doing all other neces- sary things to increase and improve the City of Fayetteville's wastewater treatment capacity and related facili- ties. If the issuance of the Bonds is approved, the Bonds shall be secured by a pledge of and lien upon all of the receipts of a special citywide sales and use tax at the rate of three-quarters of one percent (0.75%) levied pursuant to the Local Government Bond Act (the "Sales and Use Tax"). If the issuance of the Bonds is approved, the levy and 51 collection of the Sales and Use Tax - shall commence on April 1 , 2002 and shall cease upon retirement of the - Bonds. - O FOR the issuance of Bonds in prin- cipal amount not to exceed One - Hundred Twenty-Five Million Dollars ($125,000,000) for the pur- pose of financing all or a portion of the costs of acquiring, construct- ing, reconstructing, extending, improving and equipping waste- water treatment plants, sewerage and other related improvements. - o AGAINST the issuance of Bonds in principal amount not to exceed - One Hundred Twenty-Five Million Dollars ($125,000,000) for the pur- pose of financing all or a portion of the costs of acquiring, construct- ing, reconstructing, extending, improving and equipping waste- water treatment plants, sewerage and other related improvements. B1C= 001 © Esas 1981 NAME OF FILE: Ordinance No. 4327 CROSS REFERENCE: 08/07/01 Ordinance No. 4327 08/15/01 Letter from Heather Woodruff, City Clerk, to the Washington County Election Commission regarding a city-wide special election to be held on Tuesday, November 6, 2001 . 08/ 10/01 & Proof of Publication 08/12/2001 NOTES : FAYETTEVIPLE THE CITY OF FAYETTEVILLE, ARKANSAS August 15, 2001 Washington County Election Commission 280 North College Fayetteville, Arkansas 72701 Dear Sir or Madam: Enclosed please find a copy of Fayetteville Ordinance 4327 calling for a city-wide special election to be held on Tuesday, November 6, 2001 , on the question of levying a three-quarter of one per-cent city-wide sales and use tax. The proceeds of which shall be used for the purpose of paying all or a portion of the costs associated with wastewater treatment facilities. Please consider this letter a formal request pursuant to Section 6 of the ordinance for the Washington County Election Commission to provide for the necessary election officials and supplies for such election. If there is anything further that we may do to cooperate and ensure the timely and orderly election called for in the ordinance you have only to ask. Please feel free to call me at 575-8323 or City Attorney Kit Williams at 575-8313 for any assistance or information you may require. Sincerely, / Hea er Woodruff City Clerk 113 WEST MOUNTAIN 72701 501521-7700 FAX 501575-8257 Arkansas De mocrat wcOz AFFIDAVIT 011PUBLICA"PION RECEIVED 1 AUG 14 2001 CITY OF FAYETTEVILLE swcal' 111a1: 1 ant Lcoal Glak OEllic Arlwnsas CITY CLERICS OFFICE llcnlocl:lt-GclzcttcNcwspapcl', prinlul anil puhlishcul al, l .c,l,vcll , Arkan:;as ;uli1 . 111a1 From 1113, ilwn per:;unal knuwlcdi ,c and 1'cfct'cncc Lo Lhc flIcs Of saiLl publication the advcrtiscmcnL of' \\kc: im :rfcd in the rc�ular cdiliuns on Publiallion Ch;lrl,c _�f��7_�S__ Purchase OrLlu' II Subscribed and sworn to U rc nic alis 2001 . NoULl'y Public My commission cxpirc:; OFFICIAL SEAL t ' CAgRO��LyYbN� COAKLEY Eqpt ro idgT9, asa ULS lvcnuc, l:lycltcvitic, Arl;anm:i "2"101 , (50 ] )S"71 -6167 08 - 14 - GIA70 : 20 RCVD NORTHWEST ARKANSAS TIMER Sunday, Ootpber 14, 2001 A3 VA J/ Aa4,6,ev Zk CITY OF FAYMEVILLE NOTICE OF SPECIAL ELECTION Notice is hereby given that the City of Fayetteville, Arkansas, will hold a special election on November 6,2001 , at which there will be submitted to the electors of the City the question of the levy of the Sales and Use Tax in substan- tially the following form: Vote on each question by placing an "X" in the square oppo- site the question either "FOR" or "AGAINST": ❑ FOR the issuance of Bonds in principal amount not to exceed One Hundred Twenty-Five Million Dollars ($125,000,000) for the purpose of financing all or. a portion of the costs of acquiring, constructing, reconstructing, extending, improving and equipping wastewater treatment plants, sewerage and other related improvements. ❑ AGAINST the issuance of Bonds in principal amount not to 'exceed One Hundred Twenty-Five Million Dollars ($ 125,000,000) for the purpose of financing all or a portion of the costs of acquiring, constructing, reconstructing, extending, improving and equipping wastewater treatment plants, sewerage and other related improvements. If approved by the voters, the Bonds shall be paid by the levy of a three-quarters of one percent (0.75%) sales and use tax (pledged exclusively to payment of these Bonds) which shall begin on April 1 , 2002 after the termination of the current one percent ( 1 .00%) sales and use tax which has funded the City Library's new construction. Upon payment in full of the Bonds. authorized i above, the levy of the sales'rand useF'taxl P.75%) shall eease automatically. . . I T i" - J_ MICROFILMED - AFFIDAVIT OF PUBLICATION STATE OF ARKANSAS, County of Washington L ,\ m �\ ' n� ,�1 do solemnly swear that I am of The Morning News of Northwest Arkansas, a daily newspaper having a general circulation in said county, and do solemnly swear the said ad- vertisement was published for consecutive in said newspaper, the said publication ap- pearing: day of�� l day of " day of r ' day of day of f � Sub n re me thi � �— day of Misty Fischer No1+Y Public - Arkansas of :. County of W"hirloo ZAS \ 1 Comminion Exp. 0726/2010 \ otary Public My commission expires Publication charge is $ �� , � • ORDINANCE NO. 4327 AN ORDINANCE CALLING AN ELECTION ON THEI ?STION OF THE ISSUANOe OF NOT TO EXCE' )NE HUN- DRED TWENTY-FIVE MILLION DOLLARS ($125,000,0 u) OF CAPITAL IMPROVEMENT BONDS BY THE C._-/ FOR THE PURPOSE OF FINANCING ALL OR A PORTION OF THE COSTS OF THE ACQUISITION, CONSTRUCTION, RECON- STRUCTION, EXTENDING, IMPROVING AND EQUIPPING OF WASTEWATER TREATMENT PLANTS, SEWERAGE, AND RELATED FACILITIES; LEVYING A SPECIAL LOCAL SALES AND USE TAX AT THE RATE OF THREE-QUARTERS OF ONE PERCENT (0.75%) WITHIN THE CITY TO BE PLEDGED TO THE PAYMENT OF THE BONDS, WHICH LEVY SHALL CEASE UPON RETIREMENT OF THE BONDS; CALLING AND SETTING A DATE FOR A SPECIAL ELECTION ON THE QUESTION OF THE ISSUANCE OF THE BONDS; DEFINING THE TERM "SINGLE TRANSACTION"; AND PRESCRIBING OTHER MATTERS PERTAINING THERETO. WHEREAS, the City Council of the City of Fayetteville, Arkansas recognizes and determines there is a great and pressing need to substantially increase the City's wastewater treatment capacity; and WHEREAS, if the citizens of Fayetteville elect to use especial citywide sale tax to finance this capital improvement, many millions of dollars of financing expense would be saved in comparison with financing this improvement by a large increase in sewer rates for the customers of the Fayetteville wastewater system; and WHEREAS, the City Council of the City of Fayetteville, Arkansas has determined that there is a great need for additional sources of revenue to finance capital improvements to meet the needs of the residents of the City; and WHEREAS, Title 14, Chapter 164, Subchapter 3 of the Arkansas Code of 1987 Annotated (the "Local Government Bond Act of 1985") authorizes the issuance of capital improvement bonds by cities, which bonds may be secured by the pledge of the receipts of the special citywide sales and use tax prescribed by the Local Government Bond Act of 1985; and WHEREAS, said special citywide sales and use tax is to be levied and collected only on the first $2,500 of each single transaction; and WHEREAS, an existing citywide sales and use tax is presently being levied pursuant to the Local Government Bond Act at the rate of One Percent (1%), which levy expires on March 31, 2002; and WHEREAS, if approved by the electors of Fayetteville the City Council of Fayetteville,Arkansas has determined to issue its capital improvement bonds in principal amount not to Exceed One Hundred Twenty -Five Million Dollars ($125,000,000) for the purpose of financing all or a portion of the costs of tie acquisition, construction, reconstruction, extending, improving, and equipping of wastewater treatment plants, sewerage aid related facilities, which Bonds are to be secured by the pledge of all of the receipts of a three-quarters of one percent (075%) special citywide sales and use tax, as authorized by the Local Government Bond Act; and WHEREAS, the purpose of this Ordinance is to cell a special election on the issuance of the Bonds by the City of Fayetteville, and to define the term "single transaction; NOW, THEREFORE, BE IT ORDAINED by the CityCouncil of the City of Fayetteville, Arkansas: Section 1. That under the authority of the Local Government Bond Act and subject to the approval by the electors of the City of Fayetteville as provided in Section 3 below, thee is hereby authorized the issuance of the City's capital improvement bonds in the aggregate principal amount of not to exceed One Hundred Twenty -Five Million Dollars ($125,000,000) (the "Bonds") for the purpose of financing all or a portion of the costs of acquiring, constructing, reconstructing, extending, improv- ing and equipping wastewater treatment plants, sewerage and related facilities (the "Project"). If the issuance of the Bonds is approved by the electors of the City, the Bonds may th 'after be issued in one or more series from time to time in an aggre- gate principal amount not to exceed the principal amottit approved by the City's electors. If approved by the electors of the City and issued, the Bonds shall be secured by a pledge of and a lien upon all of the receipts of a three-quarters of one per- cent (0.75%) special citywide sales and use tax (the "Sles and Use Tax"), as authorized by the Local Government Bond Act. Section 2. That under the authority of the Local Govrnment Bond Act and subject to approval by the electors of the City as provided in Section 3 below, there is hereby leviecthe Sales and Use Tax at the rate of three-quarters of one percent (0.75%) on the gross receipts from the sale at retail jithin the City of all items which are subject to the Arkansas Gross Receipts Act of 1941, as amended (Arkansas Code of 987 Annotated §26-52-101 et seq.), and an excise (or use) tax on the storage, use, distribution or other consumption within tie City of tangible personal property purchased, leased or rented from any retailer outside the State of Arkansas after the elective date of the Sales and Use Tax for storage, use, distribution or other consumption in the City at the rate of three-quaters of one percent (0.75%) on the sale price of the property or, in the case of leases or rentals, on the lease or rental price, the rate of the use tax to correspond to the rate of the sale tax. The use tax portion of the Sales and Use Tax shall be collected according to the terms of the Arkansas Compensating Tax Act of 1949, as amended (Arkansas Code of 1987 Annotated §26-53-101 et seq.). The Sales and Use Tax shall be levied and col- lected only on the first $2,500 of each "single transaction' (as defined in Section 9 hereof). The levy and collection of the Sales and Use Tax shall commence on April 1, 2002 and shall cease upon retirement of the Bonds. Section 3. That there be, and there is hereby called, a special election to be held on Tuesday, November 6, 2001, at which election there shall be submitted to the electors of the City the question of the issuance of the Bonds. Section 4, That the question shall be placed on the ballot for the special election in substantially the following form: There is submitted to the qualified electors of the City of Fayetteville, Arkansas, the question of the issuance of capital improvement bonds in principal amount not to exceed One Hundred Twenty -Five Million Dollars [$125,000,000] (the "Bonds") pursuant to Title 14, Chapter 164, Subchapter 3 of the Arkansas Code of 1987 Annotated (the "Local Government Bond Act of 1985") for the purpose of financing all or a portion of the costs of the acquisition, construction, reconstruction, extending, improving and equipping of the Wastewater System Improvement Project which encom- passes building and equipping a second wastewatertreatment plant, modifying, extending and improving the sewer col- lection system, reconstruction and improving the current wastewater treatment plant, making land and equipment pur- chases, procuring construction and professional services, obtaining regulatory approvals and permits, and doing all other necessary things to increase and improve the City of Fayetteville's wastewater treatment capacity and related facilities. If the issuance of the Bonds is approved, the Bonds shall be secured by a pledge of and lien upon all of the receipts of a special citywide sales and use tax at the rate of three-quarters of one percent (0.75%) levied pursuant to the Local Government Bond Act (the "Sales and Use Tax"). If the issuance of the Bonds is approved, the levy and col- lection of the Sales and Use Tax shall commence on April 1, 2002 and shall cease upon retirement of the Bonds. Vote on the question by placing an "X" in one of the squares following the question, either for or against: FOR the issuance of Bonds in principal amount not to exceed One Hundred Twenty -Five Million Dollars ($125,000,000) for the purpose of financing all or a portion of the costs of acquiring, constructing, reconstructing, extending, improving and equipping wastewater treatment plants, sewerage and other related improvements ...............❑ AGAINST the issuance of Bonds in principal amount not to exceed One Hundred Twenty -Five Million Dollars [$125,000,000] for the purpose of financing all or a portion of the costs of acquiring, constructing, reconstructing, extending, improving and equipping wastewater treatment plants, sewerage and other related improvements ...............❑ Section 5. That the election shall be held and conducted and the vote canvassed and the results declared under the law and in the manner now provided for Arkansas municipal elections unless otherwise provided in the Local Government Bond Act, and only qualified voters of the City shall have the right to vote at the election. The City Clerk is hereby directed to give notice of the special election by one advertisement in the Northwest Arkansas Times, the publication to be not less than ten (10) days prior to the date of the election. Section 6. That a copy of this Ordinance shall be given to the Washington County Board of Election Commissioners so that the necessary election officials and supplies may be provided. A certified copy of this Ordinance and a map clearly showing the boundaries of the City shall also be provided to the Director of the Department of Finance and Administration and to the Treasurer of the State of Arkansas as soon as practical. . Section 7. That the results of the special election shall be proclaimed by the Mayor, and his proclamation shall be pub -I lished one time in the Northwest Arkansas Times. The proclamation shall advise that the results as proclaimed shall be con- clusive unless attacked in the Circuit Court of Washington County within thirty (30) days after the date of publication of the Droclamation. Section 8. That the Mayor and the City Clerk, for and on behalf of the City, be, and they hereby are authorized and direct- ed to do any and all things necessary to call and hold the special election as herein provided and, if the levy of the issuance of the Bonds is approved by the electors, to cause the Sales and Use Tax to be collected in accordance with the Local Government Bond Act, and to perform all acts of whatever nature necessary to carry out the authority conferred by this Ordinance. Section 9. That, for purposes of the Sales and Use Tax, the term "single transaction" is defined according to the nature of the goods purchased as follows: A. When two or more devices in which, upon which or by which any person or property is, or may be, transported or drawn, including, but not limited to, on -road vehicles, off -road vehicles or farm vehicles, whether required to be licensed or not, airplanes, water vessels, motor vehicles, non -motorized vehicles and mobile homes, are sold to a person by a seller, each individual unit, whether part of a 'fleet" sale or not, shall be treated as a single transaction for the purpos- es of the Sales and Use Tax; B. Charges for utility services which are subject to the Sales and Use Tax, and which are furnished on a continuous service basis, whether such services are paid for daily, weekly, monthly or annually, shall be computed in daily incre- ments, and each such daily charge increment shall be considered to be a single transaction for the purposes of the Sales and Use Tax; C. For sales of building materials and supplies to contractors, builders or other persons, a single transaction, for the purposes of the Sales and Use Tax, shall be deemed to be any single sale which is reflected on a single invoice, receipt or statement, on which an aggregate sales (or use) tax figure has been reported and remitted to the State of Arkansas; D. When two or more items of major household appliances, commercial appliances, major equipment or machinery are sold, each individual unit shall be treated as a single transaction for the purposes of the Sales and Use Tax; and E. For groceries, drug items, dry goods and other tangible personal property and/or services not expressly covered in this Section 9, a single transaction, for the purposes of the Sales and Use Tax, shall be deemed to be any single sale which is reflected on a single invoice, receipt or statement, on which an aggregate sales tax figure has been reported and remitted to the State of Arkansas. Section 10. That Kutak Rock LLP is hereby engaged as Bond Counsel and Stephens Inc. is hereby engaged as Jnderwriter or Financial Advisor, as appropriate, with respect to the issuance of the Bonds. The fees and expenses of Bond :ounsel and the Underwriter or Financial Advisor shall be a cost of issuance of the Bonds to be paid with Bond proceeds, if tllowed. Section 11. That all ordinances and parts thereof in conflict herewith are hereby repealed to the extent of such conflict. PASSED AND APPROVED this 7th day of August, 2001. APPROVED: By: DAN COODY, Mayor ATTEST: By: GINA ROBERTS, Deputy Clerk Heather Woodruff, City Clerk (SEAL) CERTIFICATE The undersigned, City Clerk of the City of Fayetteville, Arkansas, hereby certifies that the foregoing is a true and perfect opy of an Ordinance adopted at a regular meeting of the City Council of the City of Fayetteville, Arkansas, held in Room 219 it the City Administration Building at 6:30 p.m. on August 7, 2001. DATED: August 8, 2001 Sunday, August 12, 2001 GINA ROBERTS, Deputy Clerk Heather Woodruff, City Clerk / ORDINANCE NO. 4327 a ORDIIUIIa CAIWIG AN bE(TIOII 01THE QUFSIION OF SHE ISSUANCE OF MOTTO ONE HUNDRED IWEMII'-FIVE MI WON DOLLARS(51250O0,080) OF CAPRAL EXT BONDS BY THE (III WR POSE OF NNANONG ALL OR A PORTION OF THE COSTS OF THE ACQUISITION, CONMRU ION, RECONSTRUCT ON, EXTENDING, IMPROVING AND EQUIPPING OF WASTEWAI TMENT PUNK, SEWERAGE, AND ATED FAOMES; LEVYING A SPECIAL LOCAL SALES AND USE TAX AT THE RATE OF THREE-QUARTERS OF ONE PERCENT (0.75%) WITHIN THE 011 10 BE PLEDGED 10Th! PAYMTI OF THE BONDS, WHICH LEVY SHALL SE UPON RETIREMENT OF THE BONDS; CAVING AND SETTING A DATE FOR A SPECIAL ELECTION ON THE QUESTION OF THE ISSUANCE OF THE BONDS; DONNING THE TERM 'SINGLE TRANSACTION; AND PRESOUBIIU(�' ERMATTEps PERWNING THERETO. WHEREAS, the City Cound of the thy of Fayetteville, Arkoemm recoWches and determtm there is a Sweet and pressing and to subamNally hmeme de City's wastewater I dhnent topmily, and ':' WHEREAS, H the dinar of Coye"evas elect to um a spend citywide sob cox to firm= ths cvphd improremem, marry m4em of dollars of fmmdeg up= weld be saved in mmpmisan with HamTi krprarenat by a Imgr lmem= in near rots for the msimen of the Fayedevdle wostenmer system; and l'HEREAS, the thy Council of the City of Faymerde, *dams has determined dal draw is a Wart need for o9tiond sources of revenue to finance optical improvements to most the needs of the tesidmtU ho Cary and WHEREAS, ml. 14, Chapter 164, Stdxha Ater 3 of t e Arkansas Coda of 1987 Automated (the tad Goranmm Bond Ad of 19851 melanin Tat ¢warm of mptd bryuovmm bonds by apes, w.hidh cis may ha stood by de Sedge of the rmegrs d To spdal city bye sags ad use tart presanhd by Te lad Government Sad Ad of 1985; and ' .� WHEREAS, said spend dlywMh sales ad use tar b to be livid and cogged oily an the first 52,500 of each singletrmndion; and WHEREAS, an existing dtyaids cis ad use cox a French being levied purvnnl to due Lamy Goverment Road Act at the rem d Oan Pea (M), which levy' expos an March 31, 20D2; and ' WHEREAS, if approved by the cede of leyeuevMe the City (wind of Fayetmn9e, known has detexmmed to issue Its capital improve ent Ie avh in prmipd accord amt m exceed One Hundred 15yddy; AM= Mars (SI2S,PO0,0O0) for the purpose of finmmm8 dicta portion of dw costs of the acgaaisitim, cc MnacHeR remnsmthm, extant bipovfrcg, and equipping of movaul s treatment plmq sewerage relatd notifies, which Bonds m m be secured by the pldge of dl of the receipts d a daeeyuaden d ere permat (0.75%) spend citywide sobs and use cox, m aulhadzd by the tod Goveranneat Bard Ai,, mid WHEREAS, the purpose of nib Ord'omn a to mO a spend el dm m de esnanceof the Binds by dm Gtyd kyetten'Re, and m define the termslagI aasocdon'; NOSY, IXEREFORF. BE ITORDAINED by de Gry (oumi ofTer Gry ofFoyeiev 1e, Arkarmm: Sdiwi 1. That under the odevily of Te Local Conmmm Band Ad hod subjM n the approd by the decors of the City of Fayetmlle as provldd in Section 3 below, them Is hereby mlhorizedthe. onceof the Oty's capital bnprovmont hods in She ag negate principal ammmt of art to exceed One HundredTwwary-Fare Millon Dollars (SI25,000,000) (the'eond') for the purpose of famadng oO or a pmtmn o1 casts of acquiring conhudng, reconstructing extending improving and egdpping wastrMer treatment plank, sewerage and related fadities (the 'Pro(ed'1. If the immune alibi Bonds is approved by the eklToc' he Gty the Bonds may thereafM be head in one a more secs from rime m none in an aggregate principal amount non m iced the principal amount approved by the Gry's eledms. If ap roved by the ded'ons of Gry ad issued, the gads shall be seared by o pledge of ad a Gm upon all of t e receipts of a ilmee-quorters d one percent (0.15%) spdal citywide sals and aao cox (thhe Sales and On Tu'b as outherhed by tha d Government BondAd. d a Section 2. Thai under the outhodry of the Lad Government Sod Ad and subject m approval by the decors of the Gty m providd in Section 3 hdow, Shen a hereby bsid the Sales and Use Tax ai Poe of tme"Forlas of oan permm (0.75%) a de Wm receipts from the sale ai rating within the Gry d all item whic hpres %Ned m t e Arkmas Gross Redpts M of 1941, m moaned (Arkmsm Code of 1987 anted 826-52.101 a seq.), ad an excise (a se) cox on the storage, se, knlxdtm or other conumption wtdim the Gry of tangOde personal proprty pardoned, land a rental hm my Mader outside t e SMM ukase after do of ecove dole of the Sdm and Um Tax (a singe, m, &Mlufion a other maampdon m the Ory ai To ram of Aaeeyumm of me pear (0.75%) a doe sole prim of doe propdy a, m der + i of Imo a ratan, an the hose or rental prim, the ram of the use to to mnespond to the rate of de de ts. These to portion of the Sags and Uo Tar shag be zwOedd according m Tat Mm d do kkar ss Wanting Tu Add 1949, as amedd (Art Ham Cde of 1987 AmoMW 826-53-101 et se4f. The Sala and Use Tu shag 6e levied end rogeatd oily on de first 52,500 d eada's'vpb tmmdm' Ica defaed'm� Ion 9 hereon. the levy and mOeclbn of To Says and UseTax shill cornmmm an AWg 1, 2002 od shag ease upon ream enl of t e Bads. Sedan 3. Thai Tore be, od there h hereby riled, o special dmhn m be held an Tnesdot,, Nora nee 6, 2001, at which drum dame drag be subm'nd to tiro comers d the City de persons d 16 came d tFa Binds. + Sedan 4. That de question shag ha plead a Act 6agai (m the spend daHa m whsMdiagy der mgarwing Tam: re is submitted lathe qualified electors of der City of FaymmOle, Arkmm, the question of Tat Issuance of capital Improvement hands in pri4d amount not to aced One Hundred Tweny-Flat MnIMM Dooms 25,000,0001 The 7adsl prewar laic. 14, Chapter 164, Sedmprer 3 of the Arkanmm Code of 1987 An n uncd (the Sad Gormmm Bad Ad of 1985') fa de purpose d fammrg ag a a paCon of t e cash he mQlteifia, mm1udw, remMrmNm, uteadmg improving and equipping of the Wastewater System mgvovmerd Project which emcanpmms building and equipping a second wadewmc treatment plead, I Illybq, extemEng ad bnprovmp the snow colledon system, communication arc Improving the snarl wastewater keatmem trim, making lend and equipment purdho s, procuring co trudMa and ptofmimd dm, obtofsg regulatory approvah and pardts, and doing d other mammy *Sgs to Semi and improve the Dry of FoyemedOe's wmMMs treatment copdry and rented facilities hum Six, of tan Bad pproved, the Bands M be seared by a pldge of and Den upon a8 of the receipts of o special dryoide soles ad ern to ai da role of Taeeguncen d ere person (0.75%) lerled pawn m der land Govamme d Ac (the Sales ad Uo Tu'1. If Tat mumrce of the Bads b approved, the levy ad collection of de Sails and Use Tox shad) wnmame m Apd 1, 2002 and shag sae upon retirmm ofthe Bade s a der case by ptdng an'!C in one of the square following the qumion, either for or against lha mane of Bonds in principal mount a to exceed One Hundrd Tweary-Five MRGon Dolkers (5125,000,000) fm the purpse of finaaag d a a pardon d the mots d aryutoag con mud'mg, rKMft Mg x Sang, unpnvbry and egdpping enumerator treatment pIents, sewerage and other related improvements ...............T Cl JUST the swami of Bonds in prmdpol mount not to exceed One Hundred Twenty -Ave Milton Dollars [SI2S,0O0,0O0) for the purpose of financing all or a portion of the cosh of acquiring constructing reconsmucthil coding, improving and equipping wmte otter treatment plants, sewerage and other related improvements ...............9 O ar Sella 5. That the election shag be held and conducted and the vote canvassed and the results declared under them and in the mature now provided for Arkansas municipal ehdos unless otherwise tided in To heal Governmm BondM, and oily qualified voters ofthe Gry shall have the rightto vote atthe election. The Gry Dark a hereby dfmtd to givenoun oft e spdalelection by we advertisement in o Nadhwest Arkan s Tars, the pubfrcuto tobe not less than can (10) days priortothe date of the eledon. Sedan 6. That a copy of this Ordmme shill be Olin m the Washhington CantyBowd ofElection Commissioners so Tel T e necsory eMion officials and supplies may be provid. A mttfiedcopy of Ord'monn and a map dearly showbry the houdartes of the Gty shall also be providd m Tre Director of the Deporomed of finance ad Admoahhation and m Tea Trensurer of the Strom d Arkanon as sae us pre ' Scion 7. Dart the refitsofthe spdd elecion shed be proclaimed by the Maya, and he prodomafon shag be published ere Hme m the Hamm Arkansas Tanes. The itsodwnolion shag dvhe dot rants m prams ed shag be cadusive udes amchedin Tat O i Coad of Wmhmgton Countyraft dmty (30) days after the data ofpoEtSonof the prdmadn x Section 8. That the Maya and the City Dek, for ad a behalf of ire City, ha, and they hereby ore outhorhedad drecd to do nay and all thmW nmamy m cog and hod the spdd eledm m herein did cad, N T e levy of do issuam of the Bonds b approved by Te dement, to muse The Sales and Un Taxm be refried in acordonm with the Local Gmrmrmt Band Set, and m perform ag cis ofwholes ne maswy m any a the ahority confusedby cite Ordhnce. Sedan 9. Than, Ica purpss of the Sales ad Use Ter, the term *00 trsemodton7 a defied nordmg m ire nature of do gads purdmd asfdbws: • A Man two a can dim in which, upan which a by which my pees or property e, a maybe, trmmported a drown, ireli , but not feared! m, mtoad veld* oHiad vdddm a fain vehidm :chow regvrd to be finemd or not, cepmm, wow vessels, mote vddds, nummoMbed vdddes and mdnle hags, are sold too pea by a saga, each indmdd uadt, whether pct of a led sale or at, slag G rid m a sinao tnmdim f r do purposes oftyre Salesand UseTar; B. C hmpe hr t dry steins which m w* m t e Sales and Use Tax, and which n lumehd an a cantbwa sake bads, whether such servics see paid for daily, weekly, mmhly a mao0y shag be gored m da7y bmmonh, and each such dailydmpe mommsheNbe caMdered tobe a sbgle Trmaadan forlhepaapsesof to Sales and Use Tax; ; P C. For sides of bugdmg mataine ad supplies m emrmtork bdders a other person, a siah9le Trmmada, far To purposes d de Sams and the Tar, shag be demd m be m y to sale which a reflataid o sbag'o broke, arc* a snmmat, anwhich an aggregate sales (a use) cox fiWae hen been reported and remitted to the Stole ofA tansas D. When two or more tterm of mo[w household appEoems, commercial affiances, molar equipment or machinery we sold, each Individual unit shag be healed as a skate transaction for the pseposied ,. SdesandUseTaz;and —J I. E. For Wades, dreg ham, dry grads and ocher tmygle peron property and/or savkes ns expresdy' coved to Tags Sedtan 9, a single mnsadon, for Tae purposes of the Soles anal Use Tar, shall be �; and to be nary single sale which b reger ed a a ample invoke, receipt or stotmam, an which anaggregate sides cox figure ha been repoaedand redmd to the StateofArkomos. l' Sedon 10. That Kutok Rock M e hereby eagogd m Bend Cound and Slephm Inc a hereby engaged m Underwd r or Nnanaid Advka, m appropriate, with raspe m do enance of the Bonds. The i and expermes of Bond Counsel and the Underwriter or financial Adviser shall be a cost of issuance of the Bonds to be paid with Bond proceeds, if allowed. Sedan I1. That all ordinmmes and parts thereof in conflict herewitltm hereby repealed to the extent of such conflict. PASSED AND APPROVED the 7th day of Augn, 211. APPROVED: By DAN GOODY, Maya EA L) unkroped, Gry Deck d the Gty of FayetM0e, Arkamas, hereby cerdM that To forepdnp isa me and perfect caPy' of an Ordmae aalopted ai o regal r mmHg of de (tty Camel of de City of faptterme omen, hcMm Room 219 of the City Admhnration Bathing at 6:30 p.m. on August 7, 2001. ED: August 8, 2001 h Rthnts,DcputyGry auk t l • KUTAK ROCK LLP DRAFT 3/14/02 CITY OF FAYETTEVILLE, ARKANSAS to BANK OF OKLAHOMA, N.A. as Trustee TRUST INDENTURE Dated as of May 1, 2002 Providing for: City of Fayetteville, Arkansas Water and Sewer System Refunding Revenue Bonds Series 2002A KIiTiI City of Fayetteville, Arkansas Water and Sewer System Refunding Revenue Bonds Series 2002B Prepared by: Kutak Rock LLP 425 West Capitol Avenue, Suite 1100 Little Rock, Arkansas 72201 10-32371.02 ma A x1] niix►Y u aRY Ily (This Table of Contents is not a part of the Trust Indenture and is only for convenience of reference.) Parties........................................................................................................................... Recitals......................................................................................................................... GrantingClauses.......................................................................................................... Section 101. Section 102. Section 201. Section 202. Section 203. Section 204. Section 205. Section 206. Section 207. Section 208. Section 209. Section 210. Section 211. Section 212. Section 213. Section 214. Section 215. Section 216. Section 217. Section 301. Section 302. Section 303. Section 304. 10-32371.02 ARTICLE I DEFINITIONS Definitions...................................................................................... Useof Words................................................................................. ARTICLE II THE BONDS Page No. ................1 ................1 ................ 2 ............... 5 ...0......... 11 Securityfor the Bonds................................................................................... 12 Authorized Amount of Bonds........................................................................ 12 Details of Series 2002 Bonds......................................................................... 12 Form............................................................................................................... 14 Payment.......................................................................................................... 14 Execution....................................................................................................... 14 [RESERVED]................................................................................................ 14 Authentication................................................................................................ 14 Deliveryof the Bonds.................................................................................... 15 Mutilated, Destroyed or Lost Bonds.............................................................. 16 Registration and Transfer of Bonds............................................................... 17 Cancellation................................................................................................... 18 AdditionalBonds........................................................................................... 18 Superior Obligations Prohibited.................................................................... 19 Subordinate Obligations.................................................................................19 TemporaryBonds........................................................................................... 19 Book -Entry Bonds; Securities Depository..................................................... 20 ARTICLE III REDEMPTION OF BONDS BEFORE MATURITY Redemption of Series 2002 Bonds................................................................. 21 Notice............................................................................................................. 21 Selection of Bonds to be Redeemed.............................................................. 21 Surrender of Bonds Upon Redemption.......................................................... 22 I Section 305. Section 306. Section 401. Section 402. Section 403. Section 404. Section 405. Section 406. Section 407. Section 408. Section 409. Section 410. Section 411. Section 412. Section 413. Section 414. Section 415. Section 416. Section 417. Section 501. Section 502. Section 503. Section 504. Section 505. Section 506. Section 507. Section 508. Section 509. Redemptionin Part........................................................................................ 22 Redemption of Additional Bonds.................................................................. 22 ARTICLE IV GENERAL COVENANTS AND REPRESENTATIONS Payment of Principal, Premium, if any, and Interest ..................................... 22 Performance of Covenants............................................................................. 23 Instruments of Further Assurance.................................................................. 23 Recordation and Filing................................................................................... 23 Inspection of Books....................................................................................... 23 TaxCovenants............................................................................................... 23 Ratesand Charges.......................................................................................... 23 Taxes, Charges and Assessments................................................................... 24 Construction of Facilities; Certification of Completion Date ........................ 24 Encumbrances................................................................................................ 24 Insurance........................................................................................................ 25 Damage or Destruction; Condemnation......................................................... 25 Revenues To Be Used As Provided In Indenture .......................................... 26 Accounting; Reports...................................................................................... 26 AnnualBudget............................................................................................... 26 Operation and Maintenance of System; Disposition of System Assets......... 26 Continuing Disclosure................................................................................... 26 ARTICLE V FUNDS AND DEPOSITS Revenue Fund ..................................... Operation and Maintenance Fund ....... BondFund ........................................... Debt Service Reserve Fund ................. Renewal and Replacement Fund ......... Surplus................................................ Costs of Issuance Fund ....................... Rebate Fund ........................................ Separate Accounts Authorized ............ ARTICLE VI ........................................................ 27 ........................................................ 27 ..............................................4 28 ..........................................4.... 29 ............................................... 29 ....................................... 30 ....................................... 30 CUSTODY AND APPLICATION OF PROCEEDS OF BONDS Section 601. Creation of Construction Fund....................................................................... 31 Section 602. Payments into Construction Fund.................................................................. 31 Section 603. Disbursements from Construction Fund ........................................................ 32 Section 604. Balance in Construction Fund........................................................................ 32 10-32371.02 ii INVESTMENTS Section 701. Investment of Moneys.................................................................................... 33 Section Section Section 702. 703. 704. Investment Earnings....................................................................................... Valuation of Funds......................................................................................... Responsibility of Trustee............................................................................... 34 34 34 ARTICLE VIII DISCHARGE OF LIEN Section 801. Discharge of Lien........................................................................................... 34 Section 802. Bonds Deemed Paid....................................................................................... 34 Section 803. Non -Presentment of Bonds............................................................................ 35 ARTICLE IX DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND BONDHOLDERS Section 901. Events of Default........................................................................................... 35 Section 902. Acceleration................................................................................................... 36 Section 903. Other Remedies; Rights of Bondholders....................................................... 36 Section 904. Right of Bondholders to Direct Proceedings ................................................. 37 Section 905. Appointment of Receiver............................................................................... 37 Section906. Waiver............................................................................................................ 37 Section 907. Application of Moneys.................................................................................. 37 Section 908. Remedies Vested in Trustee........................................................................... 38 Section 909. Rights and Remedies of Bondholders............................................................ 38 Section 910. Termination of Proceedings........................................................................... 39 Section 911. Waivers of Events of Default......................................................................... 39 ARTICLE X TRUSTEE AND PAYING AGENTS Section 1001. Acceptance of Trusts...................................................................................... 40 Section 1002. Fees, Charges and Expenses of Trustee and Paying Agents; Trustee's PriorLien....................................................................................................... 42 Section 1003. Additional Duties of Trustee.......................................................................... 42 Section 1004. Notice to Bondholders of Default..................................................................43 Section 1005. Intervention by Trustee..................................................................................43 Section 1006. Merger or Consolidation of Trustee............................................................... 43 Section 1007. Resignation by Trustee.................................................................................. 43 Section 1008. Removal of Trustee........................................................................................ 44 Section 1009. Appointment of Successor Trustee................................................................ 44 10-32371.02 iii C Section 1010. Concerning Any Successor Trustee............................................................... 44 Section 1011. Reliance Upon Instruments............................................................................ 44 Section 1012. Appointment of Co-Trustee........................................................................... 44 Section 1013. Designation and Succession of Paying Agents .............................................. 45 ARTICLE XI SUPPLEMENTAL INDENTURES Section 1101. Supplemental Indentures Not Requiring Consent of Bondholders ................ 46 Section 1102. Supplemental Indentures Requiring Consent of Bondholders ....................... 47 Section 1103. Effect of Supplemental Indentures................................................................. 47 Section 1201 Section 1202 Section 1203 Section 1204 Section 1205 Section 1206 Section 1207 Section 1208 Section 1209 Section 1210 ARTICLE XII MISCELLANEOUS Consents, etc. of Bondholders ................... Notices....................................................... Limitation of Rights ................................... Severability......................................0......... Applicable Provisions of Law .................... Counterparts ............................................... Successors and Assigns .............................. Captions..................................................... Photocopies and Reproductions ................. Bonds Owned by the City .......................... ............................................... 47 ..........................................4.... 48 ............................................... 48 ............................................ 48 ...................................4........ 49 ............................................ 49 .............................................. 49 Exhibit A Form of Series 2002A Bond......................................................................... A-1 Exhibit B Form of Series 2002B Bond......................................................................... B-1 10-32371.02 iv TRUST INDENTURE THIS TRUST INDENTURE dated as of May 1, 2002, by and between the CITY OF FAYETTEVILLE, ARKANSAS (the "City"), a city of the first class organized under and existing by virtue of the laws of the State of Arkansas, and BANK OF OKLAHOMA, N.A., as trustee (the "Trustee"), a banking corporation organized under and existing by virtue of the laws of the United States of America and having its principal corporate trust office in Tulsa, Oklahoma; WITNESSETH: WHEREAS, the City presently owns a public water and sewer utility system (which system, together with all capital improvements thereto, is herein collectively called the "System") serving the residents of the City and its environs; and WHEREAS, the City is authorized and empowered under the provisions of the Constitution and laws of the State of Arkansas, including particularly Amendment 65 to the Constitution and Arkansas Code Annotated (1998 Repl. & 2001 Supp.) Sections 14-164-401 et seq., Sections 14-234-201 et seq. and Sections 14-235-201 et seq. (collectively, and as from time to time amended, the "Act"), to issue and sell its water and sewer revenue bonds and to expend the proceeds thereof to finance the costs of acquisition, construction, equipping, improving, maintaining, operating and repairing the System, and to refund any bonds issued under the Act or any bonds issued under other applicable legislation payable from and secured by a pledge of revenues derived from the System; and WHEREAS, pursuant to the provisions of Ordinance No. 3829 of the City, adopted and approved on September 20, 1994, the City has previously issued its Water and Sewer System Revenue Bonds, Series 1994 (the "Series 1994 Bonds"), in the original principal amount of $5,500,000, for the purpose of financing the cost of improvements to the System; and WHEREAS, pursuant to the provisions of Ordinance No. 4159 of the City, adopted and approved on April 20, 1999, the City has previously issued its Water and Sewer System Refunding Revenue Bonds, Series 1999 (the "Series 1999 Bonds"), in the original principal amount of $8,365,000, for the purpose of refunding outstanding bonds of the City previously issued to finance and refinance the cost of improvements to the System; and WHEREAS, pursuant to the provisions of Ordinance No. 4276 of the City, adopted and approved on October 17, 2000, the City has previously issued its Water and Sewer System Subordinate Revenue Bonds, Series 2000 (the "Series 2000 Bonds"), in the original principal amount of $10,000,000, for the purpose of financing the cost of improvements to the System; and WHEREAS, in accordance with the provisions of the Act, the City proposes to issue its Water and Sewer System Refunding Revenue Bonds, Series 2002A and Series 2002B (collectively, the "Series 2002 Bonds"), in the aggregate principal amount of $ for the purpose of refunding all of the outstanding Series 1994 Bonds and Series 2000 Bonds, establishing a debt service reserve for the Series 2002 Bonds, and paying printing, underwriting, 10-32371.02 legal and other expenses incidental to the issuance of the Series 2002 Bonds, such Series 2002 Bonds to be payable solely from and secured by a pledge of the net revenues of the System on a junior and subordinate basis to the pledge of System net revenues securing the Series 1999 Bonds; and WHEREAS, the City has further determined to enter into this Indenture to authorize the issuance of and to secure the Series 2002 Bonds by granting to the Trustee a pledge and assignment of the interests and other rights herein contained, and certain funds created hereby; and WHEREAS, the Series 2002 Bonds are to be dated, bear interest, mature and be subject to redemption as hereinafter in this Indenture set forth in detail; and WHEREAS, provision is made in this Indenture for the issuance of Additional Bonds (hereinafter defined) upon compliance with certain conditions set forth herein; and WHEREAS, the execution and delivery of this Indenture and the issuance of the Series 2002 Bonds have been in all respects duly and validly confirmed, authorized and approved by Ordinance No. , adopted and approved by the City Council of the City on March _, 2002; and WHEREAS, all things necessary to make the Series 2002 Bonds, when authenticated by the Trustee and issued as in this Indenture provided, the valid, binding and legal obligations of the City according to the import thereof, and to constitute this Indenture a valid pledge of the Net Revenues (hereinafter defined) to the payment of the principal of, premium, if any, and interest on the Series 2002 Bonds, as specified in and in accordance with the provisions hereof, have been done and performed, and the creation, execution and delivery of this Indenture and the creation, execution, issuance and delivery of the Series 2002 Bonds, subject to the terms hereof, have in all respects been duly authorized; 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 Series 2002 Bonds by the holders and owners thereof, and the sum of Ten Dollars ($10.00), lawful money of the United States of America, to it duly paid by the Trustee, at or before the execution and delivery of these presents, and for other good and valuable consideration, the receipt of which is hereby acknowledged, and in order to secure the payment of the principal of, premium, if any, and interest on the Series 2002 Bonds and all Additional Bonds (hereinafter defined) according to their tenor and effect, and to secure the performance and observance by the City of all the covenants expressed or implied herein and in the Bonds, does hereby grant, bargain, sell, convey, mortgage, assign, transfer and pledge unto the Trustee, and unto its successor or successors in trust, and to them and their assigns forever, for the securing of the performance of the obligations of the City hereinafter set forth the following: 10-32371.02 Subject only to (i) the prior pledge thereof and lien thereon securing the Prior Bonds (hereinafter defined) and (ii) the provisions of this Indenture permitting the application thereof for the purposes and on the terms and conditions set forth herein, the Net Revenues (hereinafter defined), including particularly the moneys in and pledged to the Bond Fund (hereinafter defined) and the Debt Service Reserve Fund (hereinafter defined) established by this Indenture, including the investment earnings thereon, if any. 2. All moneys, securities and obligations from time to time held by the Trustee under the terms of this Indenture (except for moneys, securities or obligations deposited with or paid to the Trustee for the redemption or payment of Bonds which are deemed to have been paid in accordance with Article VIII hereof), and any and all real and personal property, rights and interests of every kind and nature from time to time which have been, are hereby, or hereafter are, by delivery or by writing or transfer 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, or with the written consent of the City, to the Trustee, which is hereby authorized to receive any and all such properties, rights and interests at any time and at all times and to hold and apply the same subject to the terms hereof. ii Arkansas Code Annotated Section 14-164-412 provides that the Indenture may state the nature and extent of any lien on the System securing the Bonds and, therefore, proceeding under that authorization, it is hereby determined and stated that: Subject to the conditions and covenants hereinafter set forth, the owners of the Bonds shall not have a foreclosable lien on the System but shall have a lien to the full extent necessary to protect the rights for or pertaining to Trustee receivership and mandamus and the other covenants, rights, priorities and remedies set forth in this Indenture with respect to the System, including particularly Article IX hereof. As provided herein, except for Permitted Encumbrances (hereinafter defined), the City cannot confer a lien, pledge or right on the System which would, or could, result in any person obtaining a prior lien, pledge or right on the System or the Net Revenues, or a lien, pledge or right ranking on a parity with any outstanding Bonds issued hereunder except in accordance with the provisions of this Indenture pertaining to Additional Bonds (hereinafter defined) and except for the prior pledge and lien securing the Prior Bonds (hereinafter defined). TO HAVE AND TO HOLD all the same with all privileges and appurtenances hereby conveyed and assigned, or agreed or intended so to be, to 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 owners of the said Bonds issued under and secured by this Indenture without privilege, priority or distinction as to lien or otherwise of 10-32371.02 3 any of the Bonds over any of the other Bonds; provided, however, that if the City, its successors or assigns, shall well and truly pay, or cause to be paid, the principal of, premium, if any, and interest due on the Bonds, at the times and in the manner provided in the Bonds, according to the true intent and meaning thereof, and shall make the payments as required under this Indenture or shall provide, as permitted 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 of the covenants and conditions pursuant to the terms of this Indenture to be kept, 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 or deposits this Indenture and the lien and rights hereby granted shall cease, determine and be void; otherwise, this Indenture is to be and remain in full force and effect. THIS INDENTURE FURTHER WITNESSETH that, and it is expressly declared that, all Bonds issued and secured hereunder are to be issued, authenticated and delivered and all revenues and income hereby pledged are to be dealt with and disposed of under, upon and subject to the terms, conditions, 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 Trustee and with the respective owners from time to time of the Bonds or any part thereof, as follows, that is to say: [END OF RECITALS AND GRANTING CLAUSES] 10-32371.02 4 ARTICLE I DEFINITIONS Section 101. Definitions. In addition to the words and terms elsewhere defined in this Indenture, the following words and terms as used in this Indenture shall have the following meanings: "Act" means collectively, Arkansas Code Annotated (1998 Repl. & Supp. 2001) Sections 14-164-401 et seq., Sections 14-234-201 et seq. and Sections 14-235-201 et seq., as from time to time amended. "Additional Bonds" mean Bonds in addition to the Series 2002 Bonds which are issued under the provisions of Section 213 of this Indenture. "Annual Debt Service" means, with respect to all or any particular amount of Bonds, Prior Bonds or Subordinate Obligations, as the case may be, the Debt Service for any particular Fiscal Year required to be paid or set aside during such Fiscal Year, less the amount of such payment which is provided from the proceeds of the sale of Bonds, Prior Bonds or Subordinate Obligations or from sources other than Net Revenues. "Authorizing Ordinance" means Ordinance No. , adopted by the City on March _, 2002, which authorized the issuance of the Series 2002 Bonds pursuant to this Indenture. "Bond Counsel" means any firm of nationally recognized municipal bond counsel selected by the City and acceptable to the Trustee. "Bond Fund" means the fund by that name created and established in Section 502 of this Indenture. "Bonds" mean the Series 2002 Bonds and all Additional Bonds issued by the City pursuant to this Indenture. "Book -Entry System" means the book -entry system maintained by the Securities Depository described in Section 217 of this Indenture. "Budget" means the annual budget to be prepared and filed pursuant to Section 415 of this Indenture. "City" means the City of Fayetteville, Arkansas, a municipality and political subdivision under the laws of the State of Arkansas. "City Clerk" means the person holding the office and performing the duties of the City Clerk of the City. 10-32371.02 5 "Closing Date" means, with respect to any series of Bonds, the date upon which there is an exchange of such series of Bonds for the proceeds representing the purchase price for such series of Bonds by the original purchaser or purchasers thereof. "Code" means the Internal Revenue Code of 1986, as from time to time amended, and applicable regulations issued or proposed thereunder. "Completion Date" means the date upon which Facilities are first ready for normal continuous operation or the date upon which damaged Facilities are replaced in normal continuous operation as determined by a Qualified Engineer. "Construction Fund" means the fund by that name created and established in Section 601 of this Indenture. "Continuing Disclosure Agreement" means, collectively, each Continuing Disclosure Agreement between the City and the Trustee, dated the date of issuance and delivery of a series of Bonds, as originally executed and as amended from time to time in accordance with the terms thereof. "Costs of Construction" mean all costs paid or incurred by the City in connection with acquiring, constructing and equipping of Facilities and placing of the same in operation or the reconstruction and re -equipping of damaged Facilities and replacing them in operation, including, without limitation, paying all or a portion of the interest on any series of Bonds issued for such purpose; paying into the Debt Service Reserve Fund from the proceeds of Bonds all or a portion of the amount or amounts required to make the amounts therein equal to the Reserve Requirements with respect to the particular series of Bonds being issued; paying or reimbursing the City or any fund for expenses of the City incident and properly allocable to such acquisition, construction, and equipping or reconstruction and re -equipping and the placing or replacing of the Facilities in operation; and all other expenses incident and properly allocable to the acquisition, construction, and equipping or the reconstruction and re -equipping of Facilities, the financing of the same, and the placing of the same in operation. "Costs of Issuance Fund" means the fund by that name created and established in Section 507 of this Indenture. "Debt Service" means, with respect to all or any particular amount of Bonds, Prior Bonds or Subordinate Obligations, as the case may be, the total as of any particular date of computation and for any particular period of the scheduled amount of interest and amortization of principal payable on such Bonds, Prior Bonds and Subordinate Obligations, excluding amounts scheduled during such period which relate to principal which has been retired before the beginning of such period. "Debt Service Reserve Fund" means the fund by that name created and established in Section 504 of this Indenture. 10-32371.02 "Depository" means a national or state banking corporation or association (which may include the Trustee and any Paying Agent) which holds membership in the Federal Deposit Insurance Corporation. "Escrow Agreement" means the Escrow Deposit Agreement dated May _, 2002, between the City and the Escrow Trustee, providing for the redemption of the Series 1994 Bonds and the Series 2000 Bonds. "1994 Escrow Fund" means the fund established under the Escrow Agreement for deposit of moneys and investment securities to be held for redemption of the Series 1994 Bonds. "2000 Escrow Fund" means the fund established under the Escrow Agreement for deposit of moneys [and investment securities] to be held for redemption of the Series 2000 Bonds. "Escrow Trustee" means Bank of Oklahoma, N.A., in its capacity as escrow trustee under the Escrow Agreement. "Event of Default" means any event of default specified in Section 901 hereof. "Facilities" mean land, buildings, structures, machinery, equipment and all related or necessary property, tangible or intangible, constituting the System, including, but not limited to, consumables, rights, easements, franchises, and common facilities (being facilities used in common by the City in the furnishing of water or sewer services) which are used or useful in the collection, storage, distribution, treatment, sale or other use of water or wastewater, and to which the City has right, title or ownership, in whole or undivided part, and, if in undivided part, then to the extent of the City's right, title or ownership therein. "Fiscal Year" means the 12 -month period used, at any time, by the City for accounting purposes with respect to the System, which may be the calendar year. "Government Securities" means (i) bonds, notes, certificates of indebtedness, treasury bills or other securities constituting direct obligations of, or obligations on which the full and timely payment of principal and interest is fully and unconditionally guaranteed by, the United States of America (including any such securities issued or held in book -entry form on the books of the Department of Treasury of the United States of America), and (ii) evidences of direct ownership or proportionate or individual interest in future interest or principal payments on specified direct obligations of, or obligations on which the full and timely payment of principal and interest is fully and unconditionally guaranteed by, the United States of America, which obligations are held by a bank or trust company organized and existing under the laws of the United States of America or any state thereof in the capacity of custodian in form and substance satisfactory to the Trustee. "Holder" or "bondholder" or "owner of the Bonds" means the registered owner of any 10-32371.02 7 "Indenture" means this Trust Indenture dated as of May 1, 2002, between the City and the Trustee, pursuant to which the Bonds are issued, and any amendments and supplements hereto. "Investment Securities" means, if and to the extent the same are at the time legal for investment of funds held under this Indenture: (a) Government Securities; (b) bonds, notes or other obligations of any state of the United States of America or any political subdivision of any state, which at the time of their purchase are rated in either of the two highest rating categories by a nationally recognized Rating Agency; (c) certificates of deposit or time or demand deposits constituting direct obligations of any bank, bank holding company, savings and loan association or trust company organized under the laws of the United States of America or any state thereof (including the Trustee or any of its affiliates), except that investments may be made only in certificates of deposit or time or demand deposits which are: (1) insured by the Federal Deposit Insurance Corporation, or any other similar United States Government deposit insurance program then in existence; or (2) continuously and fully secured by Government Securities, which have a market value, exclusive of accrued interest, at all times at least equal to the principal amount of such certificates of deposit or time or demand deposits; (d) repurchase agreements with any bank, bank holding company, savings and loan association, trust company or other financial institution organized under the laws of the United States of America or any state thereof (including the Trustee or any of its affiliates), that are continuously and fully secured by Government Securities and which have a market value, exclusive of accrued interest, at all times at least equal to the principal amount of such repurchase agreements, provided that each such repurchase agreement conforms to current industry standards as to form and time, is in commercially reasonable form, is for a commercially reasonable period, results in transfer of legal title to identified Government Securities which are segregated in a custodial or trust account for the benefit of the Trustee, and further provided that Government Securities acquired pursuant to such repurchase agreements shall be valued at the lower of the then current market value thereof or the repurchase price thereof set forth in the applicable repurchase agreement; (e) short term discount obligations of the Federal National Mortgage Association and the Government National Mortgage Association; and (f) money market mutual funds (1) that invest in Government Securities or that are registered with the federal Securities and Exchange Commission (SEC), meeting the requirements of Rule 2a-7 under the Investment Company Act of 1940, and (2) that are rated in either of the two highest categories by a nationally recognized Rating Agency. 10-32371.02 8 "Mayor" means the person holding the office and performing the duties of the Mayor of the City. "Net Revenues" means, for any period, Revenues less Operation and Maintenance Expenses. "Operation and Maintenance Expenses" means, for any period, all ordinary and necessary expenses of operation, repair, maintenance and insuring of the System under generally accepted accounting principles, except that there shall not be included (i) any allowance for depreciation, (ii) any deposits or transfers to the credit of (a) the Bond Fund or to any fund or account created for the payment of debt service on the Prior Bonds or any Subordinate Obligations, (b) the Debt Service Reserve Fund or any debt service reserve fund or account created in connection with the Prior Bonds or any Subordinate Obligations, or (c) the Renewal and Replacement Fund, or (iii) any payments with respect to obligations not payable in whole or in part under any circumstances from Revenues. Operating Expenses shall specifically include obligations of the City to the Beaver Water District of Benton and Washington Counties, Arkansas. "Operation and Maintenance Fund" means the fund by that name confirmed and described in Section 502 of this Indenture. "Original Purchaser" means the first purchaser(s) of a series of Bonds from the City. "Outstanding" means, when used with reference to the Bonds, as of any particular date, the aggregate of all Bonds authenticated and delivered under this Indenture except: (a) Bonds cancelled at or prior to such date or delivered to or acquired by the Trustee at or prior to such date for cancellation; (b) Bonds deemed to be paid in accordance with Article VIII of this Indenture; and (c) Bonds in lieu of or in exchange or substitution for which other Bonds shall have been authenticated and delivered pursuant to this Indenture. "Participants" means those financial institutions for whom the Securities Depository effects book -entry transfers and pledges of securities deposited with the Securities Depository in the Book -Entry System, as such listing of Participants exists at the time of such reference. "Paying Agent" means any bank or trust company named by the City as the place at which the principal of and premium, if any, and interest on the Bonds are payable. "Permitted Encumbrances" mean (i) any mortgage lien for the security of the Bonds or the Prior Bonds; (ii) liens for taxes, assessments and other governmental charges not then delinquent or which can be paid without penalty, (iii) unfiled, inchoate mechanics' and materialmen's liens, (iv) workmen's, repairmen's, warehousemen's, and carriers' liens and others similar liens, if any, arising in the ordinary course of business, and (v) any easements, restrictions, mineral, oil, gas and mining rights and reservations, zoning laws and defects in title 10-32371.02 9 or other encumbrances to which Facilities may be subject because of their acquisition, construction and installation as part of the System. "Person" means any natural person, firm, association, corporation, limited liability company, partnership, joint stock company, joint venture, trust, unincorporated organization or firm, or a government or any agency or political subdivision thereof or other public body.. "Prior Bonds" means the Series 1999 Bonds and any additional indebtedness issued and secured by the City on a parity basis therewith. "Qualified Accountant" means an independent certified public accountant or firm of independent certified public accountants not in the regular employ of the City. "Qualified Engineer" means an independent consulting engineer or firm of independent consulting engineers not in the regular employ of the City. "Rating Agency" means Moody's Investors Service, Standard & Poor's Ratings Services or Fitch, Inc., and their respective successor and assigns. If any such corporation ceases to act as a securities rating agency, the City may appoint any nationally recognized securities rating agency as a replacement. "Rebate Fund" means the fund by that name created and established in Section 508 of this Indenture. "Record Date" means with respect to any interest payment date of the Bonds, the first day of the calendar month in which such interest payment date falls. "Renewal and Replacement Fund" means the fund by that name confirmed and described in Section 505 of this Indenture. "Reserve Requirement" means, at any particular time, an amount equal to 50% of the aggregate maximum Annual Debt Service in any Fiscal Year thereafter with respect to Outstanding Bonds of all series. "Revenue Fund" means the fund by that name confirmed and described in Section 501 of this Indenture. "Revenues" means all fees, tolls, rates, rentals and charges levied and collected in connection with, and all other income and receipts of whatever kind or character derived by the City from, the operation of the System. Revenues shall specifically include, but shall not be limited to, revenues from water sales, sewer service charges, fire protection charges and interest income on Revenue Fund balances. Notwithstanding the foregoing, Revenues shall not include acreage, connection, front -footage, tap -on, assessment and similar fees, charges, contributions or grants derived by the City in connection with the provision of or payment for capital improvements constituting a part of the System. 10-32371.02 10 "Securities Depository" means The Depository Trust Company, New York, New York, or its nominee, and its successors and assigns. "Series 1994 Bonds" means City of Fayetteville, Arkansas Water and Sewer System Revenue Bonds, Series 1994, issued in the original aggregate principal amount of $5,500,000, to be refunded with the proceeds of the Series 2002A Bonds. "Series 1999 Bonds" means City of Fayetteville, Arkansas Water and Sewer System Refunding Revenue Bonds, Series 1999, issued in the original aggregate principal amount of $8,365,000. "Series 2000 Bonds" means City of Fayetteville, Arkansas Water and Sewer System Subordinate Revenue Bonds, Series 2000, issued in the original aggregate principal amount of $10,000,000, to be refunded with the proceeds of the Series 2002B Bonds. "Series 2002 Bonds" means, collectively, the Series 2002A Bonds and the Series 2002B Bonds. "Series 2002A Bonds" means one of the initial series of Bonds being issued under and secured by this Indenture in the aggregate principal amount of $ for the purpose of refunding the Series 1994 Bonds. "Series 2002B Bonds" means one of the initial series of Bonds being issued under and secured by this Indenture in the aggregate principal amount of $ for the purpose of refunding the Series 2000 Bonds. "Subordinate Obligations" mean debt obligations of the City secured by a pledge of Net Revenues that is subordinate to the lien thereon securing the payment of the Bonds and the Prior Bonds, permitted by the provisions of Section 215 of this Indenture. "System" means the City's combined water and sewer utility system. "Tax Regulatory Agreement" means with respect to any series of Bonds, that Tax Regulatory Agreement of the City relating to maintenance of the excludability of interest on such Bonds from gross income for federal income tax purposes, delivered in connection with the issuance of such series of Bonds. "Trustee" means the banking corporation or association designated as Trustee in the Indenture, and its successor or successors as such Trustee. The original Trustee is Bank of Oklahoma, N.A., Tulsa, Oklahoma. "Trust Estate" means the property described in the granting clauses of this Indenture. 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", "owner", "holder" and "person" shall include the plural, as well as the singular, number. 10-32371.02 11 ARTICLE II THE BONDS Section 201. Security for the Bonds. The Bonds are special and limited obligations of the City payable as to principal, premium, if any, and interest solely out of Net Revenues, which Net Revenues shall be, and the same hereby are, pledged and charged to such payment in accordance with the provisions of this Indenture, and the Bonds do not constitute an indebtedness for which the faith and credit of the State of Arkansas or the City is pledged within the meaning of any Constitutional or statutory limitation. The Bonds shall never constitute an obligation of or a charge against the general credit or taxing powers of the City. The Bonds shall be secured by such pledge and charge and by a lien on the Net Revenues and by the trusts and assignments herein made or made pursuant hereto, all in accordance with and subject to the conditions and provisions of this Indenture. This pledge, charge and lien shall be inferior and subordinate to the pledge, charge and lien on the Net Revenues securing the Prior Bonds and such pledge, charge and lien shall not prevent the application of such pledged moneys and revenues for the purposes and on the terms set forth in this Indenture. The pledge, charge, lien, trusts and assignments made herein and hereby shall be valid and binding, and shall be deemed continuously perfected from the time of issuance of the Series 2002 Bonds, and the Net Revenues shall thereupon be immediately subject to the pledge, charge, lien, trust and assignment created hereby upon receipt thereof by or for the City or by the Trustee or the Paying Agent hereunder, without any physical delivery, segregation thereof or further act, and such pledge, charge, lien, trust and assignment shall be valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the City, irrespective of whether such parties have notice thereof. The Bonds shall be equally and ratably payable and secured hereunder without priority by reason of date of adoption of this Indenture or any Supplemental Indenture authorizing their issuance or by reason of their series, number, date, date of issue, execution, authentication or sale, or otherwise. No Bonds may be issued under the provisions of this Indenture except in accordance with this Article II. Section 202. Authorized Amount of Bonds. No Bonds may be issued under the provisions of this Indenture except in accordance with this Article II. The total principal amount of Bonds that may be issued is hereby expressly limited to $ , except as provided in Section 210 and Section 213 hereof. Section 203. Details of Series 2002 Bonds. (a) The Series 2002A Bonds (i) shall be designated "City of Fayetteville, Arkansas Water and Sewer System Refunding Revenue Bonds, Series 2002A," (ii) shall be in the aggregate principal amount of $ , (iii) shall be dated as of May 1, 2002, (iv) shall bear interest from such date at the rates hereinafter provided until paid, payable semiannually on February 15 and August 15 of each year, commencing August 15, 2002, (v) shall be issued in denominations of $5,000 each, or any integral multiple thereof, (vi) shall be numbered from R02A-1 upwards in order of issuance according to the records of the Trustee, and (vii) shall mature, unless sooner redeemed in the manner in this 10-32371.02 12 Indenture set forth, on August 15 in each of the years and in the amounts set forth in the following table, which table also sets forth the interest rates for the Series 2002A Bonds: Year (August 15) 2002 2003 2004 2005 2006 2007 2008 Principal Amount Interest Rate $ 04 (b) The Series 2002B Bonds (i) shall be designated "City of Fayetteville, Arkansas Water and Sewer System Refunding Revenue Bonds, Series 2002B," (ii) shall be in the aggregate principal amount of $ , (iii) shall be dated as of May 1, 2002, (iv) shall bear interest from such date at the rates hereinafter provided until paid, payable semiannually on February 15 and August 15 of each year commencing August 15, 2002, (v) shall be issued in denominations of $5,000 each, or any integral multiple thereof, (vi) shall be numbered from R02B-1 upwards in order of issuance according to the records of the Trustee, and (vii) shall mature, unless sooner redeemed in the manner in this Indenture set forth, on August 15 in each of the years and in the amounts set forth in the following table, which table also sets forth the interest rates for the Series 2002B Bonds: Year (August 15) 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Principal Amount R Interest Rate 10-32371.02 13 Section 204. Form. The Series 2002 Bonds shall be issued as registered Bonds without coupons. The Series 2002A Bonds and the Trustee's certificate of authentication to be endorsed thereon shall be in substantially the form set forth in Exhibit A hereto, with appropriate variations, insertions and omissions as permitted or required by this Indenture. The Series 2002B Bonds and the Trustee's certificate of authentication to be endorsed thereon shall be in substantially the form set forth in Exhibit B hereto, with appropriate variations, insertions and omissions as permitted or required by this Indenture. Section 205. Payment. The Bonds shall be payable, with respect to principal, premium, if any, and interest in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts. The principal of and premium, if any, on the Bonds shall be payable upon surrender thereof at the principal corporate trust office of the Trustee. Payment of interest on each Bond shall be made by check or draft mailed to the registered owner of such Bond as of the applicable Record Date at his address as it appears on the registration books maintained by the Trustee. For purposes of this Indenture, interest on the Bonds shall be deemed to accrue on the basis of a 360 day year of twelve 30 day months. So long as the Securities Depository or its nominee is the sole registered owner of the Bonds, payment of interest thereon shall be made by wire transfer of immediately available funds by the Paying Agent to the Securities Depository or its nominee. All payments shall be made in lawful money of the United States of America. Section 206. Execution. The Bonds shall be executed on behalf of the City by the manual or facsimile signatures of its Mayor and City Clerk and shall have impressed or imprinted thereon the seal of the City. A facsimile signature shall have the same force and effect as if manually signed. In case any officer whose manual signature or a 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 such official had remained in office until delivery. Section 207. [RESERVED] Section 208. Authentication. Only such Bonds as shall have endorsed thereon a certificate of authentication substantially in the form set forth in Exhibit A and Exhibit B attached hereto duly executed by the Trustee shall be entitled to any right or benefit under this Indenture. No Bond shall be valid and obligatory for any purpose unless and until such certificate of authentication shall have been duly executed 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 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. 10-32371.02 14 Section 209. Delivery of the Bonds. The City shall execute and deliver to the Trustee and the Trustee shall authenticate the Bonds of any series and deliver said Bonds to the original purchaser or purchasers thereof as may be directed in this Section 209, in Section 213 hereof or in any supplemental indenture. (1) Prior to the delivery or original issuance by the Trustee of any authenticated Bonds of any series, there shall be delivered to the Trustee: (a) An original executed counterpart of this Indenture or, in the case of Additional Bonds, a supplemental indenture by and between the City and the Trustee setting forth the details concerning such Additional Bonds; (b) A written order to the Trustee by the City to authenticate and deliver the Bonds to the original purchaser or purchasers thereof upon payment to the Trustee, but for the account of the City, of a sum specified in such order plus accrued interest thereon, if any, to the date of delivery; (c) A copy, duly certified by the City Clerk, of the proceedings of the City authorizing the issuance of the Bonds; (d) A written opinion of Bond Counsel approving the legality of the Bonds; (e) In the case of any series of Additional Bonds, a certificate signed by the Mayor of the City certifying that (i) the City is not then in default in the performance of any of the covenants, conditions, agreements or provisions contained in this Indenture, and (ii) the City is current as to all required deposits at that time in all the funds described in Article V of this Indenture or hereafter created by supplemental indentures, or if the City is in default or is not so current, certifying in the case of (i) or (ii) as to that fact and that upon the application of the proceeds of the sale of such Additional Bonds as provided in the supplemental indenture authorizing the issuance thereof, the City will not be in default or will be current thereafter; and (f) In the case of any series of Additional Bonds, a written opinion of Bond Counsel to the effect that the exemption from federal income tax of the interest on the Prior Bonds, the Series 2002 Bonds and any Additional Bonds theretofore issued will not be adversely affected by the issuance of the Additional Bonds being issued. (2) Simultaneously with the delivery of the Series 2002A Bonds, the Trustee shall apply the proceeds thereof as follows: (a) The amount, if any, received as accrued interest on the Series 2002A Bonds shall be deposited in the Bond Fund; (b) An amount equal to $ , the proportionate share of the Reserve Requirement, shall be deposited in the Debt Service Reserve Fund; 10-32371.02 15 S (c) An amount equal to $ shall be transferred to the Escrow Trustee to be held in the 1994 Escrow Fund for redemption of Series 1994 Bonds; [(d) An amount equal to $ shall be paid to proportionate share of the premium for [BOND INSURANCE];] ,ct i (e) An amount equal to $ shall be deposited in the Costs of Issuance Fund for payment of Costs of Issuance pursuant to the written direction of the City; and (f) The balance of said proceeds in the amount of $ shall be deposited in the Bond Fund. (3) Simultaneously with the delivery of the Series 2002B Bonds, the Trustee shall apply the proceeds thereof as follows: (a) The amount, if any, received as accrued interest on the Series 2002B Bonds shall be deposited in the Bond Fund; (b) An amount equal to $ , the proportionate share of the Reserve Requirement, shall be deposited in the Debt Service Reserve Fund; (c) An amount equal to $ shall be transferred to the Escrow Trustee to be held in the 2000 Escrow Fund for redemption of the Series 2000 Bonds; [(d) An amount equal to $ shall be paid to as a proportionate share of the premium for the [BOND INSURANCE];] (e) An amount equal to $ shall be deposited in the Costs of Issuance Fund for payment of Costs of Issuance pursuant to the written direction of the City; and (f) The balance of said proceeds in the amount of $ shall be deposited in the Bond Fund. Section 210. Mutilated, Destroyed or Lost Bonds. In case any Bond issued hereunder shall become mutilated or be destroyed or lost, the City shall, if not then prohibited by law, cause to be executed and the Trustee may authenticate and deliver a new Bond of like series, date, number, maturity and tenor in exchange and substitution for and upon cancellation of such mutilated Bond, or in lieu of and in substitution for such Bond destroyed or lost, upon the holder'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, filing by the holder with the Trustee evidence satisfactory to the Trustee that such Bonds were destroyed or lost, and of the holder's ownership thereof, and furnishing the City and Trustee with indemnity satisfactory to them. The Trustee is hereby authorized to authenticate any such new Bond. In the event any such Bonds shall have matured, instead of issuing a new Bond, the City may pay the same without the surrender thereof Upon the issuance of a new Bond under this Section 210, the City may require the payment of a sum sufficient to cover any tax or other governmental charge that may 10-32371.02 16 S be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. Section 211. Registration and Transfer of Bonds. The City hereby constitutes and appoints the Trustee as Bond registrar of the City, and as Bond registrar the Trustee shall keep books for the registration and for the transfer of the Bonds as provided in this Indenture at the principal corporate trust office of the Trustee. The person in whose name any Bond shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes and payment of or on account of the principal of and interest on any such Bond shall be made only to or upon the order of the registered owner thereof, or the owner's legal representative, and neither the City, the Trustee nor the Bond registrar shall be affected by any notice to the contrary, but such registration may be changed as herein provided. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Bond to the extent of the sum or sums so paid. Bonds may be transferred on the books of registration kept by the Trustee by the registered owner in person or by the owner's duly authorized attorney, upon surrender thereof, together with a written instrument of transfer duly executed by the registered owner or the owner's duly authorized attorney. Upon surrender for transfer of any Bond at the principal corporate office of the Trustee, the City shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Bond or Bonds of the same series and in the same aggregate principal amount and of any authorized denomination or denominations. Bonds may be exchanged at the principal corporate trust office of the Trustee for an equal aggregate principal amount of Bonds of any other authorized denomination or denominations of the same series with corresponding maturities. The City shall execute and the Trustee shall authenticate and deliver Bonds which the bondholder making the exchange is entitled to receive, bearing numbers not contemporaneously then outstanding. The execution by the City of any Bond of any denomination shall constitute full and due authorization of such denomination and the Trustee shall thereby be authorized to authenticate and deliver such Bond. Such transfers of registration or exchanges of Bonds shall be without charge to the holders of such Bonds, but any taxes or other governmental charges required to be paid with respect to the same shall be paid by the holder of the Bond requesting such transfer or exchange as a condition precedent to the exercise of such privilege. The Trustee shall not be required to transfer or exchange any Bond during the period from and including a Record Date to the next succeeding interest payment date of such Bond nor to transfer or exchange any Bond after the mailing of notice calling such Bond for redemption has been made, and prior to such redemption. If the Securities Depository or its nominee is the sole registered owner of the Bonds, transfers of ownership and exchanges shall be effected on the records of the Securities Depository and its Participants pursuant to rules and procedures established by the Securities Depository and its Participants. In such case, the Trustee shall deal with the Securities Depository as representative of the beneficial owners of the Bonds for purposes of exercising the 10-32371.02 17 • rights of Bondholders hereunder, and the rights of the beneficial owners of such Bonds held by the Securities Depository or its nominee shall be limited to those established by law and agreements between such beneficial owners and the Securities Depository and its Participants. Requests, consents and directions from, and votes of, the Securities Depository or its nominee as representative shall not be deemed inconsistent if they are made with respect to different Participants or beneficial owners. Section 212. Cancellation. All Bonds surrendered for payment, redemption, transfer or exchange, if surrendered to the Trustee, shall be promptly cancelled by it, and, if surrendered to any person other than the Trustee, shall be delivered to the Trustee and, if not already cancelled, shall be promptly cancelled by it. The City may at any time deliver to the Trustee for cancellation any Bonds previously authenticated and delivered hereunder, which the City may have acquired in any manner whatsoever, and all Bonds so delivered shall be promptly cancelled by the Trustee. All cancelled Bonds held by the Trustee shall be disposed of as directed by the City. Whenever in this Indenture provision is made for the cancellation by the Trustee and the delivery to the City of any Bonds, the Trustee may, upon the written request of the City, in lieu of such cancellation and delivery, destroy such Bonds in the presence of any officer of the City (but only if the City shall so require), and deliver a certificate of such destruction to the City. Section 213. Additional Bonds. The City may issue from time to time one or more series of Additional Bonds for the purpose of (i) financing Costs of Construction in connection with the acquisition, construction or equipping of Facilities, (ii) refunding the Prior Bonds, the Series 2002 Bonds or any series of Additional Bonds or Subordinate Obligations, in whole or in part, or (iii) any combination thereof. Additional Bonds shall be secured equally and ratably with the Series 2002 Bonds and any other series of Additional Bonds theretofore issued and then Outstanding, except insofar as any terms or conditions of redemption or purchase established under this Indenture may afford additional benefit or security for the Bonds of any particular series. Before any Additional Bonds are authenticated, there shall be delivered to the Trustee the items required for the issuance of Bonds by Section 209 hereof, plus a statement by a Qualified Accountant reciting the opinion, based upon necessary investigation, that the Net Revenues of the System for the Fiscal Year immediately preceding the Fiscal Year in which such Additional Bonds are to be issued were not less than (i) 130% of the average Annual Debt Service on all then outstanding Bonds, Prior Bonds and Subordinate Obligations, plus the Additional Bonds then proposed to be issued, (ii) the amount, if any, need to make required deposits to the Debt Service Reserve Fund and any debt service reserve funds with respect to the Prior Bonds and Subordinate Obligations, and (iii) the amount, if any, needed to make required deposits to the Renewal and Replacement Fund. If any changes have been made, and are in effect on the date of issuance of the Additional Bonds, in any rates and charges imposed by the City for System services which were not in effect during the entire preceding Fiscal Year, the Qualified Accountant may, if such changes resulted in increases in such rates and charges, and shall, if such changes resulted in reductions in such rates and changes, adjust the Net Revenues for the preceding Fiscal Year to reflect any changes in such Net Revenues which would have occurred if the changed rates and changes had been in effect during the entire preceding Fiscal Year. 10-32371.02 18 • Notwithstanding anything herein to the contrary, no Additional Bonds shall be issued unless there is no default at the time of issuance under this Indenture. Section 214. Superior Obligations Prohibited. Except with respect to additional series of Prior Bonds and except to the extent permitted in Section 213 hereof for the issuance of Additional Bonds, from and after the issuance of any of the Bonds and for so long as any of the Bonds are Outstanding, the City shall not create or permit the creation of any indebtedness, or issue any bonds, notes, warrants, certificates or other obligations or evidences of indebtedness payable in any manner from the Revenues or Net Revenues or otherwise from the Trust Estate which (i) will in any way be superior to or rank on a parity with the Bonds, or (ii) will in any way be secured by a lien and charge on the Revenues or Net Revenues or on the moneys deposited in or to be deposited in the Revenue Fund, prior to or equal with the lien, pledge and charge created herein for the security of the Bonds, or (iii) will be payable prior to or equal with the payments to be made from the Revenues and the Revenue Fund into the Bond Fund and Debt Service Reserve Fund or from said Bond Fund and Debt Service Reserve Fund for the payment of the Bonds. Section 215. Subordinate Obligations. Nothing in this Indenture shall prevent the City from authorizing and issuing bonds, notes, bond anticipation notes, warrants, certificates or other obligations or evidences of indebtedness, the payment of the principal of and premium, if any, and interest on which shall be made from Revenues or Net Revenues or from a special fund to be established and maintained from Revenues or Net Revenues, provided payments from Revenues or Net Revenues or from Revenues or Net Revenues into such special fund, and the lien and charge on such Revenues or Net Revenues, shall be made junior and subordinate to the lien, pledge and charge created herein for the security and payment of the Bonds and other payments under this Indenture, including, without limitation, the following payments out of Revenues specified by this Indenture: (i) payments of Operation and Maintenance Expenses; (ii) payments into the Bond Fund; (iii) payments into the Debt Service Reserve Fund; and (iv) payments into the Renewal and Replacement Fund. Notwithstanding anything herein to the contrary, no Subordinate Obligations shall be issued unless there is no default at the time of issuance under this Indenture. Section 216. Temporary Bonds. Until Bonds in definitive form are ready for delivery, the City may execute, and upon the request of the City, the Trustee shall authenticate and deliver, subject to the provisions, limitations and conditions set forth herein, one or more Bonds in temporary form, whether printed, typewritten, lithographed or otherwise produced, substantially in the form of the definitive Bonds, with appropriate omissions, variations and insertions, and in authorized denominations. Until exchanged for Bonds in definitive form, such Bond in temporary form shall be entitled to the lien and benefit of this Indenture. Upon the presentation and surrender of any Bond or Bonds in temporary form, the City shall, without unreasonable delay, prepare, execute and deliver to the Trustee and the Trustee shall authenticate and deliver, in exchange therefor, a Bond or Bonds in definitive form. Such exchange shall be made by the Trustee without making any charge therefor to the holder of such Bond in temporary form. 10-32371.02 19 Section 217. Book -Entry Bonds; Securities Depository. The Bonds shall initially be registered to Cede & Co., the nominee for The Depository Trust Company, New York, New York (the "Securities Depository"), and no beneficial owner will receive certificates representing their respective interests in the Bonds, except in the event the Trustee issues replacement bonds as provided in this Section 217. It is anticipated that during the term of the Bonds, the Securities Depository will make book -entry transfers among its Participants and receive and transmit payment of principal of, premium, if any, and interest on, the Bonds to the Participants until and unless the Trustee authenticates and delivers replacement bonds to the beneficial owners as described in the following paragraph. If the City or the Trustee determines (A) that the Securities Depository is unable to properly discharge its responsibilities, or (B) that the Securities Depository is no longer qualified to act as a securities depository and registered clearing agency under the Securities and Exchange Act of 1934, as amended, or (C) that the continuation of a Book -Entry System to the exclusion of any Bonds being issued to any bondholder other than Cede & Co. is no longer in the best interests of the beneficial owners of the Bonds, or (2) if the Trustee receives written notice from Participants representing interests in not less than 50% of the Bonds Outstanding, as shown on the records of the Securities Depository (and certified to such effect by the Securities Depository), that the continuation of a Book -Entry System to the exclusion of any Bonds being issued to any bondholder other than Cede & Co. is no longer in the best interests of the beneficial owners of the Bonds, then the Trustee shall notify the bondholders of such determination or such notice and of the availability of certificates to bondholders requesting the same, and the Trustee shall register in the name of and authenticate and deliver replacement bonds to the beneficial owners or their nominees in principal amounts representing the interest of each; provided, that in the case of a determination under (A) or (B) of this paragraph, the City or the Trustee may select a successor securities depository in accordance with the following paragraph to effect book -entry transfers. In such event, all references to the Securities Depository herein shall relate to the period of time when the Securities Depository has possession of at least one Bond. Upon the issuance of replacement bonds, all references herein to obligations imposed upon or to be performed by the Securities Depository shall be deemed to be imposed upon and performed by the Trustee, to the extent applicable with respect to such replacement bonds. If the Securities Depository resigns and the City, the Trustee or bondholders are unable to locate a qualified successor of the Securities Depository in accordance with the following paragraph, then the Trustee shall authenticate and cause delivery of replacement bonds to bondholders, as provided herein. The Trustee may rely conclusively on information from the Securities Depository and its Participants as to the names and addresses of the beneficial owners of the Bonds. The cost of printing, registration, authentication, and delivery of replacement bonds shall be paid for by the City. In the event the Securities Depository resigns, is unable to properly discharge its responsibilities, or is no longer qualified to act as a securities depository and registered clearing agency under the Securities and Exchange Act of 1934, as amended, the City may appoint a successor Securities Depository provided the Trustee receives written evidence satisfactory to the Trustee with respect to the ability of the successor Securities Depository to discharge its responsibilities. Any such successor Securities Depository shall be a securities depository which is a registered clearing agency under the Securities and Exchange Act of 1934, as amended, or 10-32371.02 20 other applicable statute or regulation that operates a securities depository upon reasonable and customary terms. The Trustee upon its receipt of a Bond or Bonds for cancellation shall cause the delivery of Bonds to the successor Securities Depository in appropriate denominations and form as provided herein. REDEMPTION OF BONDS BEFORE MATURITY Section 301. Redemption of Series 2002 Bonds. The Series 2002 Bonds shall be subject to redemption prior to maturity as follows: (a) The Series 2002A Bonds shall not be subject to redemption prior to maturity. (b) The Series 2002B Bonds are subject to redemption prior to maturity, at the option of the City, on and after August 15, 2012, in whole at any time or in part in inverse order of maturity (and selected by the Trustee by lot within a maturity) on any interest payment date, from funds from any source, at a redemption price of 100% of the principal amount of the Series 2002B Bonds being redeemed, plus accrued interest to the date of redemption. Section 302. Notice. Notice of the call for any redemption, identifying the Bonds or portions thereof being called and the date on which they shall be presented for payment, shall be mailed by the Trustee by first class mail (or, so long as the Securities Depository or its nominee is the sole registered owner of the Bonds, by any other means acceptable to the Securities Depository, including facsimile) to the registered owner of each such Bond addressed to such registered owner at his registered address and placed in the mails not less than thirty (30) nor more than sixty (60) days prior to the date fixed for redemption; provided, however, that failure to give such notice by mailing, or any defect therein, shall not affect the validity of any proceeding for the redemption of any Bond with respect to which no such failure or defect has occurred. Any notice mailed as provided in this Section 302 shall be conclusively presumed to have been duly given, whether or not the registered owner receives the notice. Section 303. Selection of Bonds to be Redeemed. If less than all of the Bonds of like series, maturity, interest rate and otherwise identical payment terms shall be called for redemption, the particular Bonds or portions of Bonds to be redeemed shall be selected by lot by the Trustee in such manner as the Trustee in its discretion may deem fair and appropriate; provided, however, that the portion of any Bond of a denomination of larger than the minimum denomination may be redeemed in the principal amount of such minimum denomination or a multiple thereof, and that for purposes of selection and redemption, any such Bond of a denomination larger than the minimum denomination shall be considered to be that number of separate Bonds of such minimum denomination which is obtained by dividing the principal amount of such Bond by such minimum denomination. So long as the Securities Depository or 10-32371.02 21 its nominee is the sole registered owner of a series of Bonds, the procedures established by the Securities Depository shall control with respect to the selection of the particular Bonds of such series to be redeemed. Section 304. Surrender of Bonds Upon Redemption. Notice having been given in the manner and under the conditions hereinabove provided, and moneys for payment of the redemption price being held by the Trustee as provided in this Indenture (i) the Bonds or portions of Bonds so called for redemption shall, on the date fixed for redemption designated in such notice, become due and payable at the redemption price provided for redemption of such Bonds, and interest on such Bonds or portions of Bonds so called for redemption shall cease to accrue, (ii) upon surrender of the Bonds or portions of Bonds so called for redemption in accordance with such notice, such Bonds or portions of Bonds shall be paid at the applicable redemption price, (iii) such Bonds or portions of Bonds shall cease to be entitled to any lien, benefit or security under this Indenture, and (iy) the owners of said Bonds or portions of Bonds shall have no rights in respect thereof except to receive payment of the redemption price thereof. Section 305. Redemption in Part. Any Bond which is to be redeemed only in part shall be surrendered to the Trustee (with, if the City or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the City and the Trustee duly executed by, the owner thereof or his attorney duly authorized in writing), and the appropriate officials of the City shall execute and the Trustee shall authenticate and deliver to the owner of such Bond, without service charge, a new Bond or Bonds of the same series, of any authorized denomination or denominations, having the same maturity and interest rate as requested by such owner, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Bond so surrendered. Section 306. Redemption of Additional Bonds. Additional Bonds may be made subject to optional, extraordinary and mandatory sinking fund redemption, in whole or in part, in such manner, at such times and at such prices as may be provided in the Supplemental Indenture providing for their issuance. ARTICLE IV GENERAL COVENANTS AND REPRESENTATIONS Section 401. Payment of Principal, Premium, if any, and Interest. The City covenants that it will promptly pay or cause to be paid the principal of and premium, if any, and interest on every Bond issued under this Indenture at the place, on the dates and in the manner provided herein and in the Bonds according to the true intent and meaning thereof. The principal, premium, if any, and interest (except interest paid from the proceeds from the sale of the Bonds and accrued interest) are payable solely from the Trust Estate which is hereby specifically pledged to the payment thereof in the manner and to the extent herein specified, and nothing in the Bonds or this Indenture should be considered as assigning or pledging any funds or assets of the City other than the Trust Estate. Anything in this Indenture to the contrary notwithstanding, it is understood that whenever the City makes any covenants involving financial commitments it pledges no funds or assets other than the Trust Estate in the manner and 10-32371.02 22 to the extent herein specified, but nothing herein shall be construed as prohibiting the City from using any other funds or assets. Section 402. Performance of Covenants. The City covenants that it will faithfully perform at all times any and all covenants, undertakings, stipulations and provisions contained in this Indenture, in any and every Bond executed, authenticated and delivered hereunder, and in all ordinances pertaining hereto. The City covenants that it is duly authorized under the Constitution and laws of the State of Arkansas, including particularly and without limitation the Act, to issue the Bonds authorized hereby and to execute this Indenture and to make the pledge of Net Revenues and to make the 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 enforceable obligations of the City according to the import thereof. Section 403. Instruments of Further Assurance. The City covenants that it will do, execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered such indenture or indentures supplemental hereto and such further acts, instruments and transfers as the Trustee may reasonably require for the better assuring, transferring, mortgaging, pledging, assigning and confirming unto the Trustee of the Trust Estate. Section 404. Recordation and Filing. To the extent necessary, the City covenants that it will cause this Indenture, such security agreements, financing statements, and all supplements thereto and other instruments as may be required from time to time to be kept, to be recorded and filed in such manner and in such places as may be required by law in order to fully preserve and protect the security of the owners of the Bonds and the rights of Trustee hereunder, and to perfect the security interest created by this Indenture. Section 405. Inspection of Books. All books and documents in the possession of the City relating to the System and the Revenues shall at all reasonable times be open to inspection by such accountants or other agencies as the Trustee may from time to time designate and by any Qualified Engineer and the Qualified Accountant required pursuant to the provisions hereof. Section 406. Tax Covenants. The City shall not use or permit the use of any Bond proceeds or any other funds of the City, directly or indirectly, in any manner, and will not take or permit to be taken any other action or actions which would adversely effect the exclusion of interest on any Bond from gross income for federal income tax purposes. No part of the proceeds of the Bonds shall at any time be used, directly or indirectly, to acquire securities or obligations the acquisition of which would cause any of such Bonds to be an "arbitrage bond" as defined in Sections 148(a) and (b) of the Code. The City agrees that so long as any of the Bonds remain Outstanding, it will comply with the provisions of each applicable Tax Regulatory Agreement. Section 407. Rates and Charges. The rates charged for services of the System heretofore fixed by ordinances of the City and the conditions, rights and obligations pertaining 10-32371.02 23 thereto, as set forth in said ordinances, are ratified, confirmed and continued by the Authorizing Ordinance. The City covenants that rates for System services will never be reduced while any of the Bonds are Outstanding unless there is obtained from a Qualified Accountant a certificate to the effect that Net Revenues, with the reduced rates, in the current Fiscal Year will be at least equal to (i) 125% of the average Annual Debt Service on all Bonds, Prior Bonds and Subordinate Obligations, (ii) the amount, if any, needed to make required deposits to the Debt Service Reserve Fund and any debt service reserve funds with respect to the Prior Bonds and Subordinate Obligations, and (iii) the amount, if any, needed to make required deposits to the Renewal and Replacement Fund. The City further covenants that the rates for System services shall, if and when necessary, from time to time, be increased in such manner as will produce Net Revenues at least equal to (i) 125% of the current Annual Debt Service on all Bonds, Prior Bonds and Subordinate Obligations, (ii) the amount, if any, needed to make required deposits to the Debt Service Reserve Fund and any debt service reserve funds with respect to the Prior Bonds and Subordinate Obligations, and (iii) the amount, if any, needed to make required deposits to the Renewal and Replacement Fund. Section 408. Taxes, Charges and Assessments. The City covenants that it will promptly pay all lawful taxes, charges, assessments, imposts and governmental charges at any time levied or assessed upon or against the System, its Revenues or any part thereof; provided, however, that nothing contained in this Section 408 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. Section 409. Construction of Facilities; Certification of Completion Date. The City covenants that in the case of each series of Additional Bonds issued to finance Costs of Construction in connection with the acquisition, construction or equipping of Facilities, it will forthwith proceed to acquire, construct and equip the Facilities for which the Bonds of such series shall be issued, in accordance with applicable plans and specifications and in conformity with law and all requirements of all governmental authorities having jurisdiction thereover, and that it will complete the acquiring, constructing and equipping of such Facilities with all expedition practicable. Promptly after the Completion Date, the City shall submit to the Trustee the certificate of a Qualified Engineer which shall specify the Completion Date and shall state that acquisition, construction and equipping of the Facilities have been completed and the Costs of Construction have been paid, except for any Costs of Construction which have been incurred but are not then due and payable, or the liability for the payment of which is being contested or disputed by the City, and for the payment of which the Trustee is directed to retain specified amounts of moneys in specified accounts within the Construction Fund. Notwithstanding the foregoing, such certificate may state that it is given without prejudice to any rights against third parties which exist at the date thereof or which may subsequently come into being. Section 410. Encumbrances. The City covenants that it will not create or suffer to be created any lien or charge upon the System or any part thereof (other than Permitted Encumbrances) or upon the Revenues, except in accordance with the provisions of this Indenture, and that, from Revenues, it will pay or cause to be discharged, or will make adequate 10-32371.02 24 provision to satisfy and discharge, within ninety (90) days after the same shall accrue, all lawful claims and demands for labor, materials, supplies or other objects which, if unpaid, might by law become a lien upon the System or any part thereof or upon the Revenues; provided, however, that nothing in this Section 410 contained shall require the City to pay or cause to be discharged, or make provision for, any such lien or charge so long as the validity thereof shall be contested in good faith and by appropriate legal proceedings. Section 411. Insurance. The City covenants and agrees to insure and at all times keep insured, in the amount of the actual value thereof, by a responsible insurance company or companies authorized and qualified under the laws of the State of Arkansas to assume the risk thereof, all properties of the System, other than water storage tanks, mains and lines for the transmission, distribution or collection of water or wastewater, against loss or damage from fire, lightning, tornado, winds, strike, malicious damage or explosion and against loss or damage from any other causes customarily insured against by private companies engaged in a similar type of business. In the event of loss, the proceeds of such insurance shall be applied solely toward the reconstruction, replacement or repair of the System, and in such event the City shall, with reasonable promptness, cause to be commenced and completed the reconstruction, replacement and repair work. If such proceeds are more than sufficient for such purposes, the balance remaining shall be deposited to the credit of the Bond Fund and the bond funds for the Prior Bonds, pro rata, in relation to the then outstanding principal amounts of the Bonds and the Prior Bonds, and, if such proceeds shall be insufficient for such purposes, the deficiency shall be supplied, first, from moneys in the Renewal and Replacement Fund and, second, from any available moneys in the Revenue Fund pursuant to Section 506 hereof. Section 412. Damage or Destruction; Condemnation. The City covenants and agrees that in the event of damage to or destruction of the System, or if all or any part of the System shall be taken under the exercise of eminent domain, it will immediately notify the Trustee. All insurance money paid or net amounts awarded shall be paid to the City, and the City shall proceed to restore, repair, replace or rebuild the Facilities of the System as nearly as possible to the condition they were in immediately prior to such damage or condemnation, to the extent that the same may be feasible, subject to such alterations as the City may elect to make. If the insurance money or net amounts awarded shall be insufficient to pay all costs of the restoration, the City shall pay the deficiency and shall nevertheless proceed to complete the restoration and pay the cost thereof. Any balance of the insurance or condemnation proceeds remaining over and above the cost of the restoration shall be deposited into the Revenue Fund. The City's obligations to make all payments set forth herein and to perform all other covenants and agreements on its part to be performed shall not be affected by any such damage or destruction or condemnation. Notwithstanding the foregoing provisions of this Section 412, the City shall not be required to repair, restore, replace or rebuild the Facilities of the System, or any part thereof, if the City shall elect to redeem prior to maturity on the next possible redemption date all of the Bonds and Prior Bonds then Outstanding, together with accrued interest to the redemption date, and to pay all charges, fees and expenses necessarily incurred and required to be incurred in 10-32371.02 25 connection with such redemption, and all other amounts then owing by the City. In that event, the proceeds of all insurance or condemnation awards shall be placed in and become part of the Bond Fund and any bond fund for the Prior Bonds. If there be any deficiency in the moneys on deposit in the Bond Fund after the deposit of all such proceeds, the City shall immediately deposit therein the amount of the deficiency. Section 413. Revenues To Be Used As Provided In Indenture. The City covenants that no Revenues will be used for any purpose other than as provided in this Indenture, and that no contract or contracts will be entered into or any action taken by which the rights of the Trustee or of the bondholders might be impaired or diminished. The City further covenants that it will adopt such resolutions and such rules and regulations as may be necessary or appropriate to carry out the obligations of the City under the provisions of this Indenture and the Act. Section 414. Accounting; Reports. The City covenants that it will keep the funds and accounts of the System separate from all other funds and accounts of the City, and that it will keep accurate records of all items of cost and of all expenditures relating to the System, and of the collection and application of Revenues, in accordance with generally accepted accounting principles. Such records and accounts shall be open to inspection by the Trustee under reasonable circumstances. The City further covenants that at the end of each Fiscal Year it will cause an audit to be made of the books and accounts for that Fiscal Year pertaining to the System by a Qualified Accountant. Costs of such audits so incurred shall be considered Operation and Maintenance Expenses. Section 415. Annual Budget. The City shall prepare an annual Budget for System operations for each Fiscal Year. A copy of each Budget shall be filed with the Trustee and a copy shall be maintained in the office of the Administrative Services Director of the City. Section 416. Operation and Maintenance of System; Disposition of System Assets. The City covenants that it will continuously operate the System in a diligent fashion in accordance with prudent utility practice and as a revenue -producing undertaking in compliance with all applicable laws and regulations and all the covenants and obligations under this Indenture. The City further covenants that it will maintain the System in sound condition and repair, that it will not sell or otherwise dispose of any property necessary to the proper operation of the System or to the maintenance of Revenues, and that it will not enter into any lease or agreement which will impair or impede the operation of the System or adversely affect the rights of the bondholders. Section 417. Continuing Disclosure. The City hereby covenants and agrees that it will comply with and carry out all of the provisions of the Continuing Disclosure Agreement. Notwithstanding any other provision of this Indenture to the contrary, failure of the City or the Trustee to comply with the Continuing Disclosure Agreement shall not be considered an Event of Default hereunder; however, the Trustee may (and at the request of the Original Purchaser of a 10-32371.02 26 series of Bonds or the owners of at least 25% in aggregate Outstanding principal amount of such series of Bonds, shall) or any Beneficial Owner may take such actions as may be necessary and appropriate, including seeking mandate or specific performance by court order, to cause the City or the Trustee, as the case may be, to comply with its obligations under this Section 417. For purposes of this Section 417, "Beneficial Owner" shall mean any Person which (a) has the power, directly or indirectly, to vote or consent with respect to, or to dispose of ownership of, any Bonds (including Persons holding Bonds through nominees, depositories or other intermediaries) or (b) is treated as the owner of Bonds for federal income tax purposes. ARTICLE V FUNDS AND DEPOSITS Section 501. Revenue Fund. (a) There is hereby confirmed and continued a special fund in the name of the City, designated as the "Revenue Fund" (the "Revenue Fund"), created by Ordinance No. 3638 of the City, adopted August 18, 1992. (b) All Revenues shall, as and when received, be deposited into the Revenue Fund. All moneys at any time in the Revenue Fund shall be applied to the payment of Operation and Maintenance Expenses of the System, the payment of Annual Debt Service on the Bonds, the Prior Bonds, and any Subordinate Obligations, the maintenance of the Debt Service Reserve Fund and any debt service reserve fund for the Prior Bonds and any Subordinate Obligations, and the providing of the Renewal and Replacement Fund, in the order, at the times and in the amounts set forth below. Section 502. Operation and Maintenance Fund. (a) There is hereby confirmed and continued a special fund in the name of the City, designated "Operation and Maintenance Fund" (the "Operation and Maintenance Fund"), created by Ordinance No. 3638 of the City, adopted August 18, 1992. (b) Prior to making the required payments into the bond funds and debt service reserve funds with respect to the Prior Bonds, into the Bond Fund and Debt Service Reserve Fund, into the bond funds and debt service reserve funds for any Subordinate Obligations, and into the Renewal and Replacement Fund, there shall be paid from the Revenue Fund into the Operation and Maintenance Fund, not later than the fifth business day preceding the fifteenth day in each month while any of the Bonds shall be Outstanding, an amount sufficient to cause amounts on deposit therein to equal projected Operation and Maintenance Expenses for the next two succeeding months (as shown by the Budget of proposed Operation and Maintenance Expenses for the then current Fiscal Year) and from which disbursements shall be made only for those purposes. Fixed annual charges such as insurance premiums and the cost of major repair and maintenance expenses may be computed and set up on an annual basis, and 1/12 of the amount thereof may be paid into the Operation and Maintenance Fund each month. (c) If in any month for any reason there shall be a failure to transfer and pay the required amount into the Operation and Maintenance Fund, the amount of any deficiency shall 10-32371.02 27 be added to the amount otherwise required to be transferred and paid into the Operation and Maintenance Fund in the next succeeding month. Section 503. Bond Fund. (a) There is hereby created and ordered established with the Trustee a special fund, in the name of the City, to be designated "Water and Sewer System Revenue Bond Fund" (the "Bond Fund"). (b) Immediately following the making of the required deposits into the Operation and Maintenance Fund and into the bond funds and debt service reserve funds with respect to the Prior Bonds, there shall be paid from the Revenue Fund into the Bond Fund, beginning on the fifth business day preceding the fifteenth day of the first month following delivery of the Series 2002 Bonds (unless delivery of the Series 2002 Bonds occurs on or prior to the fifth business day preceding the fifteenth day in a given month, in which case the date of commencement shall be the fifth business day preceding the fifteenth day of the month of delivery of the Series 2002 Bonds), and continuing not later than the fifth business day preceding the fifteenth day of each month thereafter until all outstanding Bonds with interest thereon have been paid in full, or provision made for such payment, a sum equal to (i) 1/6 of the installment of interest coming due on the Bonds (whether at maturity, upon mandatory redemption, or otherwise) during the then next six (6) months, and (ii) 1/12 of the installment of principal coming due on the Bonds (whether at maturity, upon mandatory redemption, or otherwise) during the then next twelve (12) months, @rovided, however, that the first payments hereunder into the Bond Fund with respect to a series of Bonds shall be prorated from the date of issuance of such series of Bonds). All moneys in the Bond Fund shall be used solely for the purpose of paying Annual Debt Service on the Bonds or for any redemption of the Bonds, except as herein specifically provided. The Trustee shall withdraw from the Bond Fund, on the date of any principal or interest payment, an amount equal to the amount of such payment for the sole purpose of paying the same, which direction the Trustee hereby accepts. (c) If the Revenues are insufficient to make the required payment into the Bond Fund, the amount of any such deficiency in the payment made shall be added to the amount otherwise required to be paid into the Bond Fund not later than the fifth business day preceding the fifteenth day of the next succeeding month. If a surplus shall exist in the Bond Fund over and above the amount required for making all Annual Debt Service payments during the then next twelve (12) months on all Outstanding Bonds, such surplus shall be deposited into the bond funds and debt service reserve funds with respect to the Prior Bonds and into the Debt Service Reserve Fund to the extent of any deficiency therein, then into the Renewal and Replacement Fund until it is fully funded, and may thereafter be applied to the payment of Debt Service on any Bonds that may be called for redemption prior to maturity. (d) When the moneys held in the Bond Fund and the Debt Service Reserve Fund shall be and remain sufficient to pay in full the principal of and premium, if any, and interest on all Bonds then Outstanding, there shall be no obligation to make further payments into the Bond Fund. 10-32371.02 28 Section 504. Debt Service Reserve Fund. (a) There is hereby created and ordered established with the Trustee a special fund, in the name of the City, to be designated "Water and Sewer System Revenue Bond Debt Service Reserve Fund" (the "Debt Service Reserve Fund"). (b) Except as provided below, from the proceeds of sale of each series of Bonds there shall be deposited into the Debt Service Reserve Fund that amount which, together with the amounts then on deposit therein, will be equal to the Reserve Requirement with respect to all Outstanding Bonds. If the amount in the Debt Service Reserve Fund is reduced below the Reserve Requirement, it shall be reimbursed to the Reserve Requirement through monthly payments, beginning not later than the fifth business day preceding the fifteenth day of the month immediately following the month in which the Debt Service Reserve Fund was reduced below the Reserve Requirement, and continuing not later than the fifth business day preceding the fifteenth day of each month thereafter until such reimbursement shall have been accomplished, from any funds in the Revenue Fund (after making the required deposits into Operation and Maintenance Fund and into the Bond Fund and the bond funds and debt service reserve funds with respect to the Prior Bonds), in an amount equal to 1/12 of the Reserve Requirement deficiency. If a surplus shall exist in the Debt Service Reserve Fund over and above the Reserve Requirement, such surplus shall be deposited into the Bond Fund and into the bond funds and debt service reserve funds with respect to the Prior Bonds to the extent of any deficiency therein, then into the Renewal and Replacement Fund until it is fully funded, and then into the Revenue Fund. (c) The amount on deposit in the Debt Service Reserve Fund (i) shall be used to the extent necessary to prevent a default in the payment of Annual Debt Service on the Bonds and Trustee's and Paying Agent's fees and (ii) may be used, together with other available funds, to provide for the payment at maturity or to redeem prior to maturity all, but not less than all, of the Outstanding Bonds. Section 505. Renewal and Replacement Fund. (a) There is hereby confirmed and continued a special fund in the name of the City, designated "Renewal and Replacement Fund" (the "Renewal and Replacement Fund"), created by Ordinance No. 3638 of the City, adopted August 18, 1992. (b) After making the required payments into the Operation and Maintenance Fund, into the bond funds and debt service reserve funds with respect to the Prior Bonds, into the Bond Fund and the Debt Service Reserve Fund, and into the bond funds and debt service reserve funds with respect to any Subordinate Obligations, there shall be paid from the Revenue Fund into the Renewal and Replacement Fund not later than the fifth business day preceding the fifteenth day of each month while any of the Bonds are Outstanding, an amount sufficient to cause the amount on deposit therein to equal $300,000 or such greater amount as the City may determine from time to time is appropriate, provided that the amount to be deposited in any month need not exceed 1/12 of the amount then required to be on deposit therein. The moneys in the Renewal and Replacement Fund shall be used solely for the purpose of paying the costs of necessary repairs or replacements due to depreciation of the System and not paid for with moneys in the 10-32371.02 29 Operation and Maintenance Fund and costs of damage caused to the System by unforeseen catastrophes. Section 506. Surplus. Any surplus in the Revenue Fund after making all disbursements and providing for all funds described above may be used, at the option of the City, for any lawful purpose. Section 507. Costs of Issuance Fund. (a) There is hereby created and ordered to be established with the Trustee, a special fund, in the name of the City, to be designated "Water and Sewer System Revenue Bond Costs of Issuance Fund" (the "Costs of Issuance Fund"). (b) That portion of the proceeds from the issuance and sale of a series of Bonds as shall be specified in Section 209 hereof and such other amounts as shall be delivered by the City for deposit therein shall be deposited into the Costs of Issuance Fund. (c) Moneys at any time held in the Costs of Issuance Fund shall be used for and applied solely to pay costs of issuance of the Bonds, including consultants, legal and financial advisory fees and expenses. (d) Payments from the Costs of Issuance Fund shall be made by the Trustee, upon receipt of written authorization, signed by the Mayor or Administrative Services Manager of the City. Upon receipt of each such authorization, the Trustee shall pay each such item directly to the person or party entitled thereto as named in such authorization, or, if directed by the City, shall deliver to the City a check, draft or warrant in an amount sufficient for the payment thereof. (e) Upon delivery of a certificate of the Mayor or Administrative Services Manager of the City stating that all costs of issuance of the series of Bonds from which moneys in the Costs of Issuance Fund was derived have been paid, the Trustee shall transfer the balance of moneys in the Costs of Issuance Fund to the Bond Fund for use in payment of interest on the related series of Bonds on the next interest payment date and the Costs of Issuance Fund shall be closed. Section 508. Rebate Fund. (a) There is hereby created and ordered to be established with the Trustee, a special fund, in the name of the City, to be designated "Water and Sewer System Revenue Bond Rebate Fund" (the "Rebate Fund"), which fund is not pledged to the payment of any Bonds. (b) There shall be deposited in the Rebate Fund the amount of all income or gain on moneys deposited in any of the funds and accounts established by this Indenture which is required to be rebated to the United States and is designated for deposit therein, as calculated by the City to be owing to the United States pursuant to the Tax Regulatory Agreement, which shall be delivered by the City concurrently with the issuance of a series of Bonds. (c) The Trustee, upon receipt of written instructions from the Mayor or Administrative Services Manager of the City, shall pay to the United States out of amounts in the Rebate Fund such amounts as are required pursuant to the Tax Regulatory Agreement. 10-32371.02 30 (d) Any moneys remaining in the Rebate Fund after payment to the United States, within sixty (60) days after the date on which the last Bond is redeemed, of one hundred percent (100%) of the rebate amount as described in Section 148(f)(2) of the Code, shall be transferred to the Revenue Fund. Section 509. Separate Accounts Authorized. A Supplemental Indenture authorizing the issuance of Additional Bonds may provide for the creation of separate accounts within the Bond Fund, Debt Service Reserve Fund, Construction Fund, Costs of Issuance Fund and Rebate Fund for such series of Bonds and such other accounts as the City may direct; provided, that the creation of such separate accounts shall be solely for the ease of administration and shall in no event affect the equal and ratable security of the Bonds of each series. If any Supplemental Indenture authorizing the issuance of Additional Bonds provides for the establishment of separate accounts for a series of Bonds, then such Supplemental Indenture shall require that the Revenues received by the City shall be deposited pursuant to written direction of the City into each of the accounts within the Bond Fund and Debt Service Reserve Fund for each series of Bonds on the basis of the installments of principal, premium, if any, and interest on each series of Bonds and the amounts required to be deposited in the accounts within the Debt Service Reserve Fund during the applicable period, to the end that the Bonds of each series shall be equally and ratable secured by the Revenues. Any Supplemental Indenture authorizing the issuance of Additional Bonds may provide that any proceeds of such series of Bonds and investment earnings thereon remaining after some specified date, or after the construction of all Facilities to be financed with the proceeds of such series of Bonds, shall be applied to the redemption of such series of Bonds. ARTICLE VI CUSTODY AND APPLICATION OF PROCEEDS OF BONDS Section 601. Creation of Construction Fund. There is hereby created and ordered to be established with the Trustee a special fund, in the name of the City, to be designated "Water and Sewer System Revenue Bond Construction Fund" (the "Construction Fund"). Section 602. Payments into Construction Fund. The proceeds from the issuance and sale of each series of Additional Bonds issued to finance the acquisition, construction or equipping of Facilities shall be deposited into the Construction Fund, except as follows: (a) There shall be deposited into the Bond Fund (i) the accrued interest, if any, on such Bonds to the date of delivery thereof paid by the Original Purchaser or Purchasers thereof, and (ii) the future interest to be paid on such Bonds from the proceeds thereof as specified in delivery instructions from the City to the Trustee on the Closing Date; (b) There shall be deposited into the Debt Service Reserve Fund the amount required by Section 503 hereof, 10-32371.02 31 (c) There shall be deposited in the Costs of Issuance Fund the amount specified in delivery instructions from the City to the Trustee on the Closing Date to be necessary to pay the costs of issuance of the series of Bonds issued and delivered on that date; and (d) Proceeds of Bonds issued for refunding purposes shall be deposited into a separate fund or funds with the Trustee or with another banking corporation or association to be used for such purpose as specified in delivery instructions from the City to the Trustee on the Closing Date. Section 603. Disbursements from Construction Fund. Moneys in the Construction Fund shall be disbursed by the Trustee to pay Costs of Construction on the basis of requisitions signed by the Mayor, the Administrative Services Director or any other person designated to the Trustee in writing by the Mayor or the Administrative Services Director. Each requisition shall specify: (a) The name of the person, firm or corporation to whom payment is to be made; (b) The amount of the payment; (c) The purpose of the payment; (d) That the payment is for a proper Cost of Construction, with a copy of invoice, statement or other evidence attached as appropriate; (e) That the disbursement shall not render inaccurate any of the representations or covenants with respect thereto contained in this Indenture; and (f) That the requisition has not been the basis of any previous disbursement from the Construction Fund. The Trustee shall keep and maintain adequate records pertaining to the Construction Fund and all disbursements therefrom and shall file an accounting thereof with the City. Section 604. Balance in Construction Fund. On the applicable Completion Date, any balance then remaining in the Construction Fund (except for amounts retained by the Trustee at the City's direction for Costs of Construction not then due and payable, to remedy defects, or for seasonal completion) shall be disbursed by the Trustee in payment or reimbursement of any part of Costs of Construction not theretofore paid or reimbursed to the City. Any portion of the balance then remaining in the Construction Fund (in excess of amounts, if any, retained by the Trustee as above provided) shall be segregated by the Trustee for (a) the redemption of Bonds of the same series of Bonds from which such moneys were derived on or prior to the earliest redemption date permitted by the Indenture without a premium or penalty in accordance with the provisions of this Indenture; (b) the payment of a portion of the annual principal due on Bonds of the same series from which such moneys were derived in years before such Bonds are subject to redemption, in years when such Bonds are subject to redemption but only in an amount in excess 10-32371.02 32 of the unexpended proceeds of such Bonds, or in years when such Bonds are subject to redemption but a call premium or penalty is required for early redemption; provided, however, that the portion of the annual principal payment due on such Bonds that may be paid hereunder shall not exceed an amount that bears the same ratio to the annual principal due that the total unexpended proceeds of such Bonds (exclusive of investment earnings) bear to the face amount of such Bonds; or (c) any other purpose provided that the Trustee is furnished with an opinion of Bond Counsel to the effect that such use is lawful under the Act and will not adversely affect the exclusion from federal income taxes of interest on any of the Bonds. Until used for one or more of the foregoing purposes, such segregated amount may be invested as permitted by this Indenture but may not be invested, without an opinion of Bond Counsel to the effect that such investment will not adversely affect the exclusion from federal income taxes of interest on any of the Bonds, to produce a yield greater than the yield on the Bonds, all in accordance with Section 148 of the Code and the regulations promulgated thereunder. ARTICLE VII INVESTMENTS Section 701. Investment of Moneys. At the direction of the City or absent such direction, the Trustee shall invest moneys in funds or accounts held by the Trustee in Investment Securities with maturity or redemption dates consistent with the times at which said moneys will be required for the purposes provided in this Indenture; provided, however, the stated maturity dates of Investment Securities of Debt Service Reserve Fund moneys shall not exceed five years from the date of investment therein. Moneys in separate funds or accounts may be commingled for the purpose of investment. The City may invest moneys held in the Revenue Fund, Operation and Maintenance Fund and Renewal and Replacement Fund in any investment obligations permitted by Arkansas law. Obligations purchased as an investment of moneys in any fund or account created by this Indenture shall be deemed at all times to be a part of such fund or account, and any income or loss due to an investment thereof shall be charged to the respective fund or account for which the investment was made except as otherwise provided in this Indenture. Investments in any fund or account shall be evaluated at least annually by the City or the Trustee, as may be appropriate. For the purpose of determining the amount in any fund or account, the City and the Trustee shall value all Investment Securities credited to such fund or account at the price at which such Investment Securities are redeemable by the holders or owners thereof at their option if so redeemable, or, if not so redeemable, at the lesser of (i) the cost of such Investment Securities minus the amortization of any premium or plus the amortization of any discount thereon and (ii) the market value of such Investment Securities, provided that Investment Securities credited to the Debt Service Reserve Fund, if not so redeemable, shall be valued at the cost thereof minus the amortization of any premium or plus the amortization of any discount thereon. 10-32371.02 33 Section 702. Investment Earnings. Subject to the provisions of the Tax Regulatory Agreement and Article V hereof, Investment Securities purchased with moneys held in or attributable to any fund or account held by the City or the Trustee under the provisions of this Indenture shall be deemed at all times to be a part of such fund or account and the income or interest earned, profits realized or losses suffered by a fund or account due to the investment thereof shall be retained in, credited or charged, as the case may be, to such fund or account unless otherwise provided pursuant to this Indenture. Section 703. Valuation of Funds. In determining the value of any fund or account held by the Trustee under this Indenture, the Trustee shall credit Investment Securities at the fair market value thereof, as determined by the Trustee by any method selected by the Trustee in its reasonable discretion. No less frequently than annually, and in any event within thirty (30) days prior to the end of each Fiscal Year, the Trustee shall determine the value of each fund and account held hereunder and shall report such determination to the City. The Trustee shall sell or present for redemption any Investment Securities as necessary in order to provide money for the purpose of making any payment required hereunder, and the Trustee shall not be liable for any loss resulting from any such sale. Section 704. Responsibility of Trustee. The Trustee shall not be responsible or liable for any loss suffered in connection with any investment of moneys made by it at the direction of the City. ARTICLE VIII DISCHARGE OF LIEN Section 801. Discharge of Lien. If the City shall pay or cause to be paid to the owners of the Bonds 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 thereupon the Trustee shall cancel and discharge the lien of this Indenture, and execute and deliver to the City such instruments 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 moneys or Government Securities held by it for the payment of the principal of and premium, if any, and interest on the Bonds. Section 802. Bonds Deemed Paid. Any Bond shall be deemed to be paid within the meaning of this Article VIII when payment of the principal of and premium, if any, and interest on such Bond (whether at maturity or upon redemption as provided in this Indenture, or otherwise), either (i) shall have been made or caused to be made in accordance with the terms thereof, or (ii) shall have been provided for by irrevocably depositing with the Trustee, in trust and irrevocably set aside exclusively for such payment, (1) moneys sufficient to make such 10-32371.02 34 payment or (2) Government Securities (provided that such deposit will not affect the tax-exempt status of the interest on any of the Bonds or cause any of the Bonds to be classified as "arbitrage bonds" within the meaning of Section 148(a) of the Code, as reflected in an opinion of Bond Counsel delivered to the Trustee), maturing as to principal and interest in such amount and at such times as will provide sufficient moneys to make such payment, and all necessary and proper fees, compensation and expenses of the Trustee and any Paying Agent pertaining to the Bonds' with respect to which such deposit is made shall have been paid or the payment thereof provided for to the satisfaction of the Trustee and any said Paying Agent. Section 803. Non -Presentment of Bonds. In the event 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, if there shall have been deposited with the Trustee for that purpose, or left in trust if previously so deposited, funds sufficient to pay the principal thereof, and premium, if any, together with all interest unpaid and due thereon, to the due date thereof, for the benefit of the holder thereof, all liability of the City to the holder thereof for the payment of the principal thereof, premium if any, and interest thereon, shall forthwith cease, determine and be completely discharged, and thereupon it shall be the duty of the Trustee to hold such fund or funds, without liability for interest thereon, for the benefit of the holder of such Bonds, 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, the Bonds. ARTICLE IX DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND BONDHOLDERS Section 901. Events of Default. Each of the following events shall constitute and is referred to in this Indenture as an "Event of Default": (a) Default in the due and punctual payment of any interest on any Bond or Prior Bond; (b) Default in the due and punctual payment of the principal of or premium, if any, on any Bond or Prior Bond, whether at the stated maturity thereof, or upon proceedings for redemption thereof, or upon the maturity thereof by declaration; (c) Default in the payment of any other amount required to be paid under this Indenture or the performance or observance of any other of the covenants, agreements or conditions contained in this Indenture, or in the Bonds issued hereunder, and continuance thereof for a period of sixty (60) days after written notice specifying such failure and requesting that it be remedied shall have been given to the City by the Trustee, which may give such notice in its discretion and shall give such notice at the written request of bondholders of not less than 51% in aggregate principal amount of the Bonds then Outstanding, unless the Trustee, or the Trustee and holders of an aggregate principal amount of Bonds not less than the aggregate principal amount of Bonds the holders of 10-32371.02 35 which requested such notice, as the case may be, shall agree in writing to an extension of such period prior to its expiration; provided, however, if the failure stated in the notice cannot be corrected within the applicable period, the Trustee will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by the City within such period and is being diligently pursued; and (d) The filing of a petition in bankruptcy by or against the City under the United States Bankruptcy Code or the commencement of a proceeding by or against the City under any other law concerning insolvency, reorganization or bankruptcy. The term "default" as used in clauses (a), (b) and (c) above 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. Section 902. Acceleration. may, and upon the written request amount of Bonds Outstanding beret the principal of all Bonds then immediately due and payable, and immediately due and payable. Upon the occurrence of an Event of Default, the Trustee of the holders of not less than 51% in aggregate principal ender shall, by notice in writing delivered to the City, declare Outstanding, together with the interest accrued thereon, such principal and interest shall thereupon become and be Section 903. Other Remedies; Rights of Bondholders. Upon the occurrence of an Event of Default, the Trustee may, as an alternative, pursue any available remedy by suit at law or in equity, including, without limitation, mandamus to enforce the payment of the principal of and premium, if any, and interest on the Bonds then Outstanding hereunder. If an Event of Default shall have occurred, and if it shall have been requested so to do by the holders of not less than 51% in aggregate principal amount of Bonds Outstanding hereunder and if it shall have been indemnified as provided in Section 1001 hereof, the Trustee shall be obligated to exercise such one or more of the rights and powers conferred upon it by this Section 903 as the Trustee, being advised by counsel, shall deem most expedient in the interests of the bondholders. 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 shall impair any rights or remedies consequent thereon. 10-32371.02 36 Section 904. Right of Bondholders to Direct Proceedings. Anything in this Indenture to the contrary notwithstanding, the holders of not less than 51% in aggregate principal 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 connection 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 905. Appointment of Receiver. Upon the occurrence of an Event of Default, and upon the filing of a suit or other commencement of judicial proceedings to enforce the rights of the Trustee and of the bondholders under this Indenture, the Trustee shall be entitled to the appointment of a receiver or receivers of the System and of the tolls, rents, revenues, issues, earnings, income, products and profits thereof, including, without limitation, the Trust Estate, pending such proceedings with such powers as the court making such appointment shall confer. Section 906. Waiver. 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 the City or under the City shall or will set up, claim or seek to take advantage of any appraisement, valuation, stay, extension or redemption laws now or thereafter in force, in 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 right of appraisement and redemption to which it may be entitled under the laws of the State of Arkansas. Section 907. Application of Moneys. Available 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 maturity of the installments of such interest, and, if the amount available shall not be sufficient to pay in full any particular installment, then to the payment ratably, according to the amounts due on such installment, to the Persons entitled thereto, without any discrimination or privilege; Second: To the payment to the Persons entitled thereto of the unpaid principal of any of the Bonds which shall have become due (other than Bonds called for redemption for the payment of which moneys are held pursuant to the provisions of this Indenture), in the order of their due dates, with interest on such Bonds from the respective dates upon which they become due, and, if the amount available shall not be sufficient to pay in full Bonds due on any particular date, together with such interest, then to the payment ratably, according to the amount of principal due on such date, to the Persons entitled thereto without any 10-32371.02 37 discrimination or privilege of any Bond over any other Bond and without preference or priority of principal over interest or of interest over principal; and Third: 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 first to the payment of the interest then due and unpaid upon the Bonds, and then to the payment of the principal then due and unpaid upon the Bonds, in each case without preference or priority of any Bond over any other Bond, ratably, according to the amounts due respectively for principal and interest, to the person entitled thereto. (c) If the principal of all the Bonds shall have been declared due and payable, and if such declaration shall thereafter have been rescinded and annulled under the provisions of this Article IX then, subject to the provisions of paragraph (b) of this Section 907, 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 907. Whenever moneys are to be applied by the Trustee pursuant to the provisions of this Section 907, 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 moneys available for application and the likelihood of additional 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 Bond until such Bond shall be presented to the Trustee for appropriate endorsement or for cancellation if fully paid. Section 908. Remedies Vested in Trustee. All rights of action (including the right to file proof of claim) under this Indenture or under any of the Bonds may be enforced by the Trustee without the possession of any of the Bonds or the production thereof in any trial or other proceeding 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. Section 909. Rights and Remedies of Bondholders. No holder of any Bond 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 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 1001, or of which by said subsection it is deemed to have 10-32371.02 38 notice, nor unless such default shall have become an Event of Default and the holders of not less than 51% 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 subsection (I) of Section 1001, 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 shall have any right in any manner whatsoever to affect, disturb or prejudice the lien of this Indenture by action of the holder or holders or to enforce any right hereunder except in the manner herein provided, and that all proceedings at law or in equity shall be instituted, held 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 bondholders to enforce the payment of the principal of and premium, if any, and interest on any Bonds at and after the maturity thereof, or the obligation of the City to pay the principal of and premium, if any, and interest on each of the Bonds issued hereunder to the respective holders thereof at the time and place in said Bonds expressed. Section 910. Termination of Proceedings. In case the Trustee shall have proceeded to enforce any right under this Indenture by the appointment of a receiver or otherwise, and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee, then and in every such case the City and the Trustee shall be restored to their former positions and 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 determination. Section 911. Waivers of Events of Default. The Trustee may, and upon the written request of the holders of not less than 51% in principal amount of all Bonds Outstanding hereunder shall, waive any Event of Default hereunder and its consequences and rescind any declaration of maturity of principal; provided, however, there shall not be waived any Event of Default described in clause (a) or (b) of the first paragraph of Section 901 hereof, unless prior to such waiver or rescission all arrears of principal (due otherwise than by declaration) and interest, and all expenses of the Trustee and Paying Agent, shall have been paid or provided for. In case of any such waiver or rescission the City, Trustee and 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 subsequent thereon. 10-32371.02 39 ARTICLE X TRUSTEE AND PAYING AGENTS Section 1001. Acceptance of Trusts. The Trustee hereby accepts the trusts imposed upon it by this Indenture and agrees to perform said trusts, but only upon and subject to 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 trusts hereof and its duties hereunder, and may in all cases pay reasonable compensation to all such attorneys, agents, receivers and employees as may reasonably be employed in connection with the trusts hereof. Reimbursement of such compensation paid by the Trustee is subject to the provisions of Section 1002 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 retained 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 1001, 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 responsible for any loss or damage resulting from an action or nonaction in accordance with any such opinion or advice. (b) The Trustee shall not be responsible for any recital herein, or in the Bonds (except in respect to the certificate of authentication of the Trustee endorsed on such Bonds), or for insuring the System or collecting any insurance moneys, or for the validity of the execution by the City of this Indenture or of any supplemental indentures or instruments of further assurance, or for the sufficiency of the security for 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 conveyed 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 performance or observance of any covenants, conditions and agreements aforesaid as to the condition of the property herein conveyed. (c) The Trustee may become the owner of Bonds 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 exchange therefor or in place thereof. 10-32371.02 40 (e) As to the existence or nonexistence 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 1001, or of which by that subsection it is deemed to have notice, shall also be at liberty to accept a similar certificate to the effect that any particular dealing, transaction, 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 in the form therein set forth has been adopted by the City as conclusive evidence that such resolution 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 gross negligence or willful misconduct. (g) The Trustee shall not be required to take notice or be deemed to have notice of any default hereunder (except for defaults under clause (a) or (b) of the first paragraph of Section 901 hereof as to 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 10% in aggregate principal amount of Bonds Outstanding hereunder, and 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 principal corporate trust office of the Trustee, and in the absence of such notice so delivered, the Trustee may conclusively assume there is no such 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- fulfillment of contracts during any period in which it may be in the possession of or managing the System as in this Indenture provided. (i) At any and all reasonable times the Trustee, and its duly authorized agents, attorneys, experts, engineers, accountants 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 System 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, 10-32371.02 41 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 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 liability which is adjudicated to have resulted from the gross negligence or willful misconduct of the Trustee, by reason of any action so taken by the Trustee. Section 1002. Fees, Charges and Expenses of Trustee and Paying Agents; Trustee's Prior Lien. (a) Subject to subsection (b) of this Section 1002, the City shall, from moneys lawfully available therefor, pay to the Trustee and any Paying Agent reasonable compensation for all services performed hereunder and also all reasonable expenses, charges and other disbursements and those of their attorneys, agents and employees incurred in and about the administration and execution of the trusts hereby created and the performance of the powers and duties hereunder and, to the extent permitted by law and from moneys lawfully available therefor, shall indemnify and save the Trustee harmless against any liabilities which it may incur in the exercise and performance of its powers and duties hereunder. If the City shall fail to make any payment required by this subsection (a), the Trustee may make such payment from any moneys in its possession under the provisions of this Indenture and shall be entitled to a preference therefor over any of the Bonds Outstanding hereunder. The City shall not be required to indemnify the Trustee against any liabilities which the Trustee may incur as a result of negligent or wrongful acts or omissions of the Trustee. (b) The City shall pay to the Trustee compensation for its services as described in this Section 1002 in accordance with a separate agreement between the City and the Trustee, provided that such compensation, together with all expenses, charges and other disbursements of the Trustee and its attorneys, agents and employees and all reimbursements to the Trustee for all costs and other disbursements as described in Section 1001(a) hereof shall not exceed $5,000 annually without the prior written approval of the City, which approval shall not be unreasonably withheld. If the Trustee wishes to consult with or retain counsel for any purpose hereunder whose anticipated fees, together with all other compensation, disbursements and reimbursements of the Trustee and its attorneys, agents and employees to be paid by the City hereunder, shall exceed $10,000 annually, then such counsel shall have to be acceptable to the City and such fees shall have to be approved by the City as described above. Section 1003. Additional Duties of Trustee. (a) In addition to the other duties of the Trustee described in this Indenture, it shall be the duty of the Trustee, on or before the tenth day of each month after the month in which the Series 2002 Bonds are delivered, to file with the City a statement setting forth in respect of the preceding calendar month: (i) the amount withdrawn or transferred by it and the amount deposited with it on account of each fund and account held by it under the provisions of this Indenture; 10-32371.02 42 (ii) the amount on deposit with it at the end of such month to the credit of each such fund and account; (iii) a brief description of all obligations held by it as an investment of moneys in each such fund and account; (iv) the amount applied to the purchase or redemption of Bonds under the provisions of this Indenture and a description of the Bonds or portions of Bonds so purchased or redeemed; and (v) any other information that the City may reasonably request. All records and files pertaining to each such fund and account in the custody of the Trustee hereunder shall be open at all reasonable times to the inspection of the City and its agents and representatives, and the City may make copies thereof. (b) The Trustee additionally shall be responsible for the preparation and timely distribution of any and all forms and reports required by law to all bondholders, the State of Arkansas and the Internal Revenue Service in connection with the payment to the bondholders of interest on the Bonds. Section 1004. Notice to Bondholders of Default. If a default occurs of which the Trustee is pursuant to the provisions of Section 1001(g) deemed to have or is given notice, the Trustee shall promptly make demand upon the City and give notice to each owner of Bonds then Outstanding. Section 1005. 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 holders of Bonds issued hereunder, the Trustee may intervene on behalf of bondholders and shall do so if requested in writing by the holders of at least 51% of the aggregate principal amount of Bonds Outstanding hereunder. The rights and obligations of the Trustee under this Section 1005 are subject to the approval of the court having jurisdiction in the premises. Section 1006. Merger or Consolidation of Trustee. Any bank or trust company to 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 notwithstanding; provided, however, that such successor trustee shall have capital and surplus of at least $20 million. Section 1007. Resignation by Trustee. The Trustee and any successor trustee may at any time resign from the trusts hereby created by giving written notice to the City and the 10-32371.02 43 bondholders, and such resignation shall take effect upon the appointment of a successor trustee by the bondholders or by the City. Such notice may be served personally or sent by registered mail (to the City) or first class mail (to the bondholders). Section 1008. 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 holders of not less than 51% in aggregate principal amount of Bonds Outstanding hereunder. Section 1009. Appointment of Successor Trustee. In case the Trustee hereunder shall resign or be removed, or be dissolved, or shall be in course of dissolution 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 holders of not less than 51% in aggregate principal amount of Bonds Outstanding hereunder, by an instrument or concurrent instruments in writing signed by such holders, 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. Any such temporary trustee appointed by the City shall immediately and without further act be superseded by the trustee appointed by such bondholders. 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 $20 million. Section 1010. Concerning Any 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 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 from 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. Section 1011. Reliance Upon Instruments. 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 its actions taken hereunder. Section 1012. Appointment of Co -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 instruments necessary or proper to appoint, another corporation or 10-32371.02 44 one or more Persons approved by the Trustee, 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, with such powers as may be provided in the instrument of appointment and to vest in such corporation or Person or Persons as such co -trustee any property, title, right or power deemed necessary or desirable. In the event that the City shall not have joined in such appointment within fifteen (15) 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 co -trustee so appointed for more fully and certainly vesting in and confirming to such co - trustee such properties, rights, powers, trusts, duties and obligations, any and all such deeds, conveyances and instruments in writing shall, on request, be executed, acknowledged and delivered by the City. Every such co -trustee shall, to the extent permitted 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 conferred upon the Trustee in respect of the custody of all money and securities pledged or deposited hereunder, 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 shall refer to this Indenture and the conditions of this Article X expressed, and upon the acceptance in writing by such co -trustee, the co -trustee 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 separate trustee to act alone), subject to all the trusts, conditions and provisions of this Indenture. Any such co -trustee may at any time, by an instrument in writing, constitute the Trustee as the co -trustee's 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 the co -trustee, for and on behalf of the co -trustee and in the co -trustee's name. In case any co -trustee shall die, become incapable of acting, resign or be removed, all the estate, properties, rights, powers, trusts, duties and obligations of said co -trustee shall vest in and be exercised by the Trustee until the appointment of a new trustee or a successor to such co -trustee. Section 1013. Designation and Succession of Paying Agents. The Trustee and any other banks or trust companies designated as Paying Agent or Paying Agents in any supplemental indenture or in an instrument appointing a successor Trustee shall be the Paying Agent or Paying Agents for the Bonds. Any bank or trust company with which or into which any Paying Agent may be merged or consolidated, or to which the assets and business of such Paying Agent may be sold, shall be deemed the successor of such Paying Agent for the purposes of this Indenture. If the position of Paying Agent shall become vacant for any reason, the City shall, within thirty (30) days thereafter, appoint such bank or trust company as shall be specified by the City as such Paying Agent to fill such vacancy; provided, however, that, if the City shall fail to appoint such Paying Agent within said period, the Trustee shall make such appointment. 10-32371.02 45 The Paying Agents shall enjoy the same protective provisions in the performance of its duties hereunder as are specified in Section 1001 hereof with respect to the Trustee insofar as such provisions may be applicable. ARTICLE XI SUPPLEMENTAL INDENTURES Section 1101. Supplemental Indentures Not Requiring Consent of Bondholders. The City and the Trustee may, from time to time and at any time, without the consent of or notice to the bondholders, enter into supplemental indentures as follows: (a) to cure any formal defect, omission, inconsistency or ambiguity in this Indenture; (b) to grant to or confer or impose upon the Trustee for the benefit of the bondholders any additional rights, remedies, powers, authority, security, liabilities or duties which may lawfully be granted, conferred or imposed and which are not contrary to or inconsistent with this Indenture as theretofore in effect, provided that no such additional liabilities or duties shall be imposed upon the Trustee without its consent; (c) to add to the covenants and agreements of, and limitations and restrictions upon, the City in this Indenture other covenants, agreements, limitations and restrictions to be observed by the City which are not contrary to or inconsistent with this Indenture as theretofore in effect; (d) to confirm, as further assurance, any pledge under, and the subjection to any claim, lien or pledge created or to be created by, this Indenture, of the Trust Estate or of any other moneys, securities or funds; (e) to comply with the requirements of the Trust Indenture Act of 1939, as from time to time amended; (f) to authorize the issuance and sale of one or more series of Additional Bonds; (g) to make such additions, deletions or modifications as may be necessary to assure compliance with Section 148(1) of the Code relating to required rebate to the United States or otherwise as may be necessary to assure exemption from federal income taxation of interest on the Bonds; or (h) to modify, alter, amend or supplement this Indenture in any other respect which is not materially adverse to the bondholders and which does not involve a change described in clause (a), (b), (c), (d), (e) or (f) of Section 1102 hereof and which, in the judgment of the Trustee, is not to the prejudice of the Trustee. 10-32371.02 46 Section 1102. Supplemental Indentures Requiring Consent of Bondholders. Subject to the terms and provisions contained in this Section, and not otherwise, the holders of not less than 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 supplemental indenture; provided, however, that nothing herein contained shall permit or be construed as permitting (a) an extension of the maturity (or mandatory redemption date) of the principal of or the interest on any Bond issued hereunder, or (b) a reduction in the principal amount of or redemption premium or rate of interest on any Bond issued hereunder, or (c) the creation of any lien on the Trust Estate or any part thereof, except as hereinbefore expressly permitted, 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 indenture, or (f) deprive the holder of any Bond then Outstanding of the lien hereby created on the Trust Estate. Nothing herein contained, however, shall be construed as making necessary the approval of bondholders of the execution of any supplemental indenture as provided in Section 1101 of this Article XI. If, at any time the City shall request the Trustee to enter into any supplemental indenture for any of the purposes of this Section, the Trustee shall, at the expense of the City, cause notice of the proposed execution of such supplemental indenture to be mailed by first class mail to each registered owner of the Bonds. 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 bondholders. The Trustee shall not, however, be subject to any liability to any bondholder by reason of its failure to mail such notice, and any such failure shall not affect the validity of such supplemental indenture when consented to and approved as provided in this Section 1102. If the holders of not less than 2/3 in aggregate principal amount of the Bonds Outstanding at the time of the execution of any such supplemental indenture shall have consented 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. Section 1103. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture entered into pursuant to Section 1101 or 1102 hereof, this Indenture shall be deemed to be modified and amended in accordance therewith. ARTICLE XII MISCELLANEOUS Section 1201. Consents, etc. of Bondholders. Any request, direction, objection or other instrument required by this Indenture to be signed and executed by the bondholders may be 10-32371.02 47 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 conclusive in favor of the Trustee with regard to any action taken by it under such request or other instrument, namely: (a) The fact and date of the execution by any 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 such officer the execution thereof, or by an affidavit of any witness to such execution. (b) The fact of ownership of Bonds and the amount or amounts, numbers, and other identification of such Bonds, and the date of holding the same shall be proved by the registration books of the City maintained by the Trustee, as Bond registrar. Section 1202. Notices. Except as otherwise provided in this Indenture, all notices, certificates or other communications shall be sufficiently given and shall be deemed given when mailed by registered or certified mail, postage prepaid, to the City or the Trustee. Notices, certificates or other communications shall be sent to the following addresses: City: City of Fayetteville City Hall 113 West Mountain Fayetteville, Arkansas 72701 Attention: Mayor Trustee: Bank of Oklahoma, N.A. P. O. Box 2300 Tulsa, Oklahoma 74192 Attention: Cynthia Wilkinson Either of the foregoing may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. Section 1203. 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 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 hereby secured as herein provided. Section 1204. 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 10-32371.02 48 provisions or 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 unenforceable in any other case or circumstance, or of rendering any other provision or provisions herein contained invalid, inoperative or unenforceable to any extent whatever. The invalidity of any one or more phrases, sentences, clauses or paragraphs in this Indenture contained shall not affect the remaining portions of this Indenture or any part thereof. Section 1205. Applicable Provisions of Law. 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. Section 1206. 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. Section 1207. Successors and Assigns. All the covenants, stipulations, provisions, agreements, rights, remedies and claims of the parties hereto in this Indenture contained shall bind and inure to the benefit of their successors and assigns. Section 1208. Captions. The captions or headings in this Indenture are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Indenture. Section 1209. Photocopies and Reproductions. A photocopy or other reproduction of this Indenture may be filed as a financing statement pursuant to the Uniform Commercial Code, although the signatures of the City and the Trustee in such reproduction are not original manual signatures. Section 1210. Bonds Owned by the City. In determining whether bondholders of the requisite aggregate principal amount of the Bonds have concurred in any direction, consent or waiver under this Indenture, Bonds which are owned by the City shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that, for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver, only Bonds which the Trustee knows are so owned shall be so disregarded. Bonds so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Bonds and that the pledgee is not the City. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee. 10-32371.02 49 IN WITNESS WHEREOF, the City 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 duly authorized officers and its corporate seal to be hereto affixed. CITY OF FAYETTEVILLE By: Mayor ATTEST: City Clerk (SEAL) BANK OF OKLAHOMA, N.A., as Trustee By: Title: ATTEST: By: Title: (SEAL) 10-32371.02 50 EXHIBIT A TO TRUST INDENTURE Form of Series 2002A Bond Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC'), to the City or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by the authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), any transfer, pledge or other use hereof for value or otherwise by or to any person is wrongful inasmuch as the registered owner hereof Cede & Co., has an interest herein. No. R02A- UNITED STATES OF AMERICA STATE OF ARKANSAS CITY OF FAYETTEVILLE, ARKANSAS WATER AND SEWER SYSTEM REFUNDING REVENUE BOND, SERIES 2002A Interest Rate: % Date of Bond: May 1, 2002 Registered Owner: CEDE & CO. Principal Amount: KNOW ALL MEN BY THESE PRESENTS: Maturity Date: August 15, 20_ CUSIP: Dollars That the City of Fayetteville, Arkansas, a municipality and political subdivision organized and existing by virtue of the laws of the State of Arkansas (the "City"), for value received, promises to pay to the Registered Owner shown above, or registered assigns, on the Maturity Date shown above, but solely from the source and in the manner hereinafter set forth, the Principal Amount shown above, and in like manner to pay interest on said amount from the date hereof until payment of such Principal Amount has been made or duly provided for, at the Interest Rate per annum shown above, such interest to be payable semiannually on February 15 and August 15 of each year, commencing on the February 15 or August 15 next succeeding the date of this bond shown above, except as the provisions hereinafter set forth with respect to redemption of this bond prior to maturity may become applicable hereto. The principal of and premium, if any, on this bond are payable in lawful money of the United States of America upon the presentation and surrender hereof at the principal corporate trust office of Bank of Oklahoma, N.A., Tulsa, Oklahoma, or its successor or successors, as trustee (the "Trustee"). So long as Cede & Co. or another nominee of DTC is the registered owner of this bond, payment of interest hereon shall be made by wire transfer of immediately available funds by the Trustee to the Registered Owner as of the first day of the calendar month in which such interest payment date shall fall (the "Record Date"). At any time thereafter, payment of interest hereon shall be made 10-32371.02 A-1 by check or draft of the Trustee to the Registered Owner as of the applicable Record Date, at the owner's address as it appears on the bond registration books of the City kept by the Trustee. This bond, designated "City of Fayetteville, Arkansas Water and Sewer System Refunding Revenue Bond, Series 2002A," is one of a series of bonds in the aggregate original principal amount of $ (the "Series 2002A Bonds"), issued for the purpose of refunding the City's outstanding Water and Sewer System Revenue Bonds, Series 1994, establishing a debt service reserve for the Series 2002A Bonds, and paying expenses of issuing the Series 2002A Bonds. The Series 2002A Bonds are issued under and are secured and entitled to the protection given by a Trust Indenture dated as of May 1, 2002 (the "Indenture"), duly executed and delivered by the City to the Trustee. Simultaneously with the issuance of the Series 2002A Bonds, the City has issued its Water and Sewer System Refunding Revenue Bonds, Series 2002B in the aggregate original principal amount of $ (the "Series 2002B Bonds"). The Series 2002A Bonds are not general obligations of the City, but are limited and special obligations payable solely from and secured by a pledge of the net revenues (the "Net Revenues") of the City's water and sewer system (the "System"), as specified in, and in accordance with the provisions of, the Indenture. The Series 2002A Bonds are secured by a pledge of the Net Revenues on a parity basis with the pledge of Net Revenues securing the Series 2002B Bonds. The pledge of Net Revenues securing the Series 2002A Bonds and Series 2002B Bonds is junior and subordinate to the prior pledge of Net Revenues securing the payment of debt service on the City's outstanding Water and Sewer System Refunding Revenue Bonds, Series 1999 (the "Series 1999 Bonds"). The Indenture provides that the City may hereafter issue Additional Bonds from time to time under certain terms and conditions contained in the Indenture and, if issued, such Additional Bonds will rank on a parity of security with the Series 2002A Bonds and Series 2002B Bonds and be equally and ratably secured by and entitled to the protection of the Indenture. Reference is hereby made to the Indenture and to all indentures supplemental thereto for the provisions, among others, with respect to the nature and extent of the security, the rights, duties and obligations of the City, the Trustee and the registered owners of the Series 2002A Bonds, and the terms upon which the Series 2002A Bonds are issued and secured. The Series 2002A Bonds are issued pursuant to and in full compliance with the Constitution and laws of the State of Arkansas, including particularly Amendment 65 to the Constitution and Arkansas Code Annotated (1998 Repl. & Supp. 2001) §§14-164-401 et seq., §§14-234-201 et seq. and §§14-235-201 et seq. (collectively, and as from time to time amended, the "Act"), and pursuant to Ordinance No. of the City adopted on March _, 2002. The Series 2002A Bonds do not constitute an indebtedness of the City within the meaning of any constitutional or statutory limitation. Provision has been made in the Indenture for the creation or maintenance of a Revenue Fund, an Operation and Maintenance Fund, a Bond Fund (and for the payment into the Bond Fund of sufficient amounts of Net Revenues to pay the principal of and premium, if any, and interest on the Series 2002A Bonds when due), a Debt Service Reserve Fund and a Renewal and Replacement Fund. The City covenants in the Indenture to always maintain rates for System 10-32371.02 A-2 services which will produce Net Revenues (gross revenues of the System less all reasonable and necessary costs and expenses incurred in the operation, maintenance, repair and insuring of the System) in each fiscal year at least equal to 130% of the average annual debt service on all outstanding indebtedness of the City secured by System revenues, plus the amount, if any, required to be deposited into the Debt Service Reserve Fund and any debt service reserve fund established with respect to outstanding indebtedness of the City secured by System revenues, and plus the amount, if any, required to make deposits to the Renewal and Replacement Fund. Reference is hereby made to the Indenture for the details of the rate covenant. The Series 2002A Bonds shall never constitute an obligation or charge against the general credit or taxing powers of the City. The holder of this Series 2002A 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 or defend any suit or other proceeding with respect 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 Series 1999 Bonds, the Series 2002A Bonds, the Series 2002B Bonds and Additional Bonds, if any, issued under the Indenture and then outstanding may be declared and may become 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 2002A Bonds shall not be subject to redemption prior to maturity. This Series 2002A Bond may be transferred on the books of registration kept by the Trustee by the registered owner or by his duly authorized attorney upon surrender hereof, together with a written instrument of transfer duly executed by the registered owner or his duly authorized attorney. The Series 2002A Bonds are issuable as registered bonds without coupons in denominations of $5,000 and any integral multiple thereof. Subject to the limitations and upon payment of the charges provided in the Indenture, Series 2002A Bonds may be exchanged for a like aggregate principal amount of Series 2002A Bonds of other authorized denominations. No recourse shall be had for the payment of the principal of or premium, if any, or interest on any of the Series 2002A Bonds or for any claim based thereon or upon any obligation, covenant or agreement contained in the Series 2002A Bonds or the Indenture against any past, present or future alderman, officer or employee of the City, or any successor, as such, either directly or through the City or any successor of the City, under any rule of law or equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise, and all such liability of any such alderman, officer or employee as such is hereby expressly waived and released as a condition of and consideration for the issuance of any of the Series 2002A Bonds. This Series 2002A Bond is issued with the intent that the laws of the State of Arkansas will govern its construction. 10-32371.02 A-3 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 Series 2002A Bonds do exist, have happened and have been performed in due time, form and manner as required by law; that the indebtedness represented by the Series 2002A Bonds, together with all obligations of the City, does not exceed any constitutional or statutory limitation; and that the revenues pledged to the payment of the principal of and premium, if any, and interest on the Series 2002A Bonds as the same become due and payable will be sufficient in amount for that purpose. This Series 2002A 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 Series 2002A Bond to be executed by its Mayor and City Clerk, thereunto duly authorized (by their manual or facsimile signatures), and its corporate seal to be affixed or imprinted hereon, all as of the date hereof shown above. CITY OF FAYETTEVILLE, ARKANSAS By: Mayor ATTEST: By: City Clerk (SEAL) 10-32371.02 A-4 ED (Form of Trustee's Certificate) TRUSTEE'S CERTIFICATE OF AUTHENTICATION This bond is one of the Series 2002A Bonds of the issue described in and issued under the provisions of the within mentioned Indenture. Attached hereto is the complete text of the opinion of Kutak Rock LLP, a signed original of which is on file with the undersigned, delivered and dated the date of the original delivery of and payment for the Series 2002A Bonds. BANK OF OKLAHOMA, N.A., as Trustee By: Authorized Signature 10-32371.02 A-5 (Form of Assignment) ASSIGNMENT FOR VALUE RECEIVED, , hereby sells, assigns, and transfers unto , the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints as attorney to transfer the within Bond on the books kept for registration thereof with full power of substitution in the premises. DATE: __________,20__ Transferor GUARANTEED BY: NOTICE: Signature(s) must be guaranteed by an institution satisfactory to the Trustee or other transfer agent. 10-32371.02 A-6 EXHIBIT B TO TRUST INDENTURE Form of Series 2002B Bond Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC'), to the City or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by the authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), any transfer, pledge or other use hereof for value or otherwise by or to any person is wrongful inasmuch as the registered owner hereof Cede & Co., has an interest herein. No. R02B-_ UNITED STATES OF AMERICA STATE OF ARKANSAS CITY OF FAYETTEVILLE, ARKANSAS WATER AND SEWER SYSTEM REFUNDING REVENUE BOND, SERIES 2002B P Interest Rate: % Maturity Date: August 15, 20 Date of Bond: May 1, 2002 Registered Owner: CEDE & CO. Principal Amount: KNOW ALL MEN BY THESE PRESENTS: CUSIP: Dollars That the City of Fayetteville, Arkansas, a municipality and political subdivision organized and existing by virtue of the laws of the State of Arkansas (the "City"), for value received, promises to pay to the Registered Owner shown above, or registered assigns, on the Maturity Date shown above, but solely from the source and in the manner hereinafter set forth, the Principal Amount shown above, and in like manner to pay interest on said amount from the date hereof until payment of such Principal Amount has been made or duly provided for, at the Interest Rate per annum shown above, such interest to be payable semiannually on February 15 and August 15 of each year, commencing on the February 15 or August 15 next succeeding the date of this bond shown above, except as the provisions hereinafter set forth with respect to redemption of this bond prior to maturity may become applicable hereto. The principal of and premium, if any, on this bond are payable in lawful money of the United States of America upon the presentation and surrender hereof at the principal corporate trust office of Bank of Oklahoma, N.A., Tulsa, Oklahoma, or its successor or successors, as trustee (the "Trustee"). So long as Cede & Co. or another nominee of DTC is the registered owner of this bond, payment of interest hereon shall be made by wire transfer of immediately available funds by the Trustee to the Registered Owner as of the first day of the calendar month in which such interest payment date shall fall (the "Record Date"). At any time thereafter, payment of interest hereon shall be made 10-32371.02 B-1 by check or draft of the Trustee to the Registered Owner as of the applicable Record Date, at the owner's address as it appears on the bond registration books of the City kept by the Trustee. This bond, designated "City of Fayetteville, Arkansas Water and Sewer System Refunding Revenue Bond, Series 2002B," is one of a series of bonds in the aggregate original principal amount of $ (the "Series 2002B Bonds"), issued for the purpose of refunding the City's outstanding Water and Sewer System Subordinate Revenue Bonds, Series 2000, establishing a debt service reserve for the Series 2002B Bonds, and paying expenses of issuing the Series 2002B Bonds. The Series 2002B Bonds are issued under and are secured and entitled to the protection given by a Trust Indenture dated as of May 1, 2002 (the "Indenture"), duly executed and delivered by the City to the Trustee. Simultaneously with the issuance of the Series 2002B Bonds, the City has issued its Water and Sewer System Refunding Revenue Bonds, Series 2002A in the aggregate original principal amount of $ (the "Series 2002A Bonds"). The Series 2002B Bonds are not general obligations of the City, but are limited and special obligations payable solely from and secured by a pledge of the net revenues (the "Net Revenues") of the City's water and sewer system (the "System"), as specified in, and in accordance with the provisions of, the Indenture. The Series 2002B Bonds are secured by a pledge of the Net Revenues on a parity basis with the pledge of Net Revenues securing the Series 2002A Bonds. The pledge of Net Revenues securing the Series 2002A Bonds and Series 2002B Bonds is junior and subordinate to the prior pledge of Net Revenues securing the payment of debt service on the City's outstanding Water and Sewer System Refunding Revenue Bonds, Series 1999 (the "Series 1999 Bonds"). The Indenture provides that the City may hereafter issue Additional Bonds from time to time under certain terms and conditions contained in the Indenture and, if issued, such Additional Bonds will rank on a parity of security with the Series 2002A Bonds and Series 2002B Bonds and be equally and ratably secured by and entitled to the protection of the Indenture. Reference is hereby made to the Indenture and to all indentures supplemental thereto for the provisions, among others, with respect to the nature and extent of the security, the rights, duties and obligations of the City, the Trustee and the registered owners of the Series 2002B Bonds, and the terms upon which the Series 2002B Bonds are issued and secured. The Series 2002B Bonds are issued pursuant to and in full compliance with the Constitution and laws of the State of Arkansas, including particularly Amendment 65 to the Constitution and Arkansas Code Annotated (1998 Repl. & Supp. 2001) §§14-164-401 et seq., §§14-234-201 et seq. and §§14-235-201 et seq. (collectively, and as from time to time amended, the "Act"), and pursuant to Ordinance No. of the City adopted on March _, 2002. The Series 2002B Bonds do not constitute an indebtedness of the City within the meaning of any constitutional or statutory limitation. Provision has been made in the Indenture for the creation or maintenance of a Revenue Fund, an Operation and Maintenance Fund, a Bond Fund (and for the payment into the Bond Fund of sufficient amounts of Net Revenues to pay the principal of and premium, if any, and interest on the Series 2002B Bonds when due), a Debt Service Reserve Fund and a Renewal and 10-32371.02 B-2 Replacement Fund. The City covenants in the Indenture to always maintain rates for System services which will produce Net Revenues (gross revenues of the System less all reasonable and necessary costs and expenses incurred in the operation, maintenance, repair and insuring of the System) in each fiscal year at least equal to 130% of the average annual debt service on all outstanding indebtedness of the City secured by System revenues, plus the amount, if any, required to be deposited into the Debt Service Reserve Fund and any debt service reserve fund established with respect to outstanding indebtedness of the City secured by System revenues, and plus the amount, if any, required to make deposits to the Renewal and Replacement Fund. Reference is hereby made to the Indenture for the details of the rate covenant. The Series 2002B Bonds shall never constitute an obligation or charge against the general credit or taxing powers of the City. The holder of this Series 2002B 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 or defend any suit or other proceeding with respect 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 Series 1999 Bonds, the Series 2002A Bonds, the Series 2002B Bonds and Additional Bonds, if any, issued under the Indenture and then outstanding may be declared and may become 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 2002B Bonds are subject to redemption prior to maturity, at the option of the City, on and after August 15, 2012, in whole at any time or in part in inverse order of maturity (and selected by the Trustee by lot within a maturity) on any interest payment date, from funds from any source, at a redemption price equal to one hundred percent (100%) of the principal amount of the Series 2002B Bonds being redeemed, plus accrued interest to the date of redemption Notwithstanding the foregoing, so long as DTC or its nominee is the sole registered owner of the Series 2002B Bonds, the particular Series 2002B Bonds or portions thereof to be redeemed in part within a maturity shall be selected by lot by DTC in such manner as DTC shall determine. In selecting Series 2002B Bonds for redemption prior to maturity, in the case any outstanding Series 2002B Bond is in a denomination greater than $5,000, each $5,000 of face value of such Series 2002B Bond shall be treated as a separate Series 2002B Bond of the denomination of $5,000. In the event any of the Series 2002B Bonds or portions thereof (which shall be $5,000 or any integral multiple thereof) are called for redemption, notice thereof shall be given by the Trustee by first class mail to the registered owner of each such Series 2002B Bond addressed to such registered owner at his registered address and placed in the mails not less than thirty (30) nor more than sixty (60) days prior to the date fixed for redemption; provided, however, that failure to give such notice by mailing, or any defect therein, shall not affect the validity of the proceedings for the redemption of any Series 2002B Bond with respect to which no such failure or defect has occurred. Each notice shall identify the Series 2002B Bonds or portions thereof 10-32371.02 B-3 being called, and the date on which they shall be presented for payment. After the date specified in such call notice, the Series 2002B Bond or Series 2002B Bonds so called for redemption will cease to bear interest provided funds sufficient for their redemption 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 Series 2002B Bond may be transferred on the books of registration kept by the Trustee by the registered owner or by his duly authorized attorney upon surrender hereof, together with a written instrument of transfer duly executed by the registered owner or his duly authorized attorney. The Series 2002B Bonds are issuable as registered bonds without coupons in denominations of $5,000 and any integral multiple thereof. Subject to the limitations and upon payment of the charges provided in the Indenture, Series 2002B Bonds may be exchanged for a like aggregate principal amount of Series 2002B Bonds of other authorized denominations. No recourse shall be had for the payment of the principal of or premium, if any, or interest on any of the Series 2002B Bonds or for any claim based thereon or upon any obligation, covenant or agreement contained in the Series 2002B Bonds or the Indenture against any past, present or future alderman, officer or employee of the City, or any successor, as such, either directly or through the City or any successor of the City, under any rule of law or equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise, and all such liability of any such alderman, officer or employee as such is hereby expressly waived and released as a condition of and consideration for the issuance of any of the Series 2002B Bonds. This Series 2002B Bond is issued with the 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 Series 2002B Bonds do exist, have happened and have been performed in due time, form and manner as required by law; that the indebtedness represented by the Series 2002B Bonds, together with all obligations of the City, does not exceed any constitutional or statutory limitation; and that the revenues pledged to the payment of the principal of and premium, if any, and interest on the Series 2002B Bonds as the same become due and payable will be sufficient in amount for that purpose. This Series 2002B 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. 10-32371.02 B-4 IN WITNESS WHEREOF, the City of Fayetteville, Arkansas has caused this Series 2002B Bond to be executed by its Mayor and City Clerk, thereunto duly authorized (by their manual or facsimile signatures), and its corporate seal to be affixed or imprinted hereon, all as of the date hereof shown above. CITY OF FAYETTEVILLE, ARKANSAS Mayor ATTEST: By: City Clerk (SEAL) 10-32371.02 B-5 (Form of Trustee's Certificate) TRUSTEE'S CERTIFICATE OF AUTHENTICATION This bond is one of the Series 2002B Bonds of the issue described in and issued under the provisions of the within mentioned Indenture. Attached hereto is the complete text of the opinion of Kutak Rock LLP, a signed original of which is on file with the undersigned, delivered and dated the date of the original delivery of and payment for the Series 2002B Bonds. BANK OF OKLAHOMA, N.A., as Trustee By: Authorized Signature 10-32371.02 B-6 (Form of Assignment) ASSIGNMENT FOR VALUE RECEIVED, , hereby sells, assigns, and transfers unto , the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints as attorney to transfer the within Bond on the books kept for registration thereof with full power of substitution in the premises. DATE: _________,20_ Transferor GUARANTEED BY: NOTICE: Signature(s) must be guaranteed by an institution satisfactory to the Trustee or other transfer agent. 10-32371.02 B-7 KUTAK ROCK LLP IPRELINARY OFFICIAL STATEMENT DATED MARCH _,2002 DRAFT 3/13/02 NEW ISSUE *RATINGS: ITO BE PROVIDED) $ ; BOOK -ENTRY ONLY (See the caption "RATINGS" herein) g v in the opinion of Bond Counsel, under existing law and assuming compliance with certain covenants described herein, interest on the Series 2002 Bondi o u is excludedfrom gross income of the owners thereoffor federal income tax purposes and is not an item of tax preference for purposes of the federal alternative minimum tax imposed on individuals and corporations; however, with respect to corporations, interest on the Series 2002 Bonds will be taken into account in determining adjusted current earnings and profits for purposes of computing the federal alternative minimum tax. Under existing law, Bond Counsel is of the u v opinion that the Series 2002 Bonds and the interest thereon are exempt from all state, county and municipal taxes in the State of Arkansas. See the caption $ a "TAX EXEMPTION herein. a g CITY OF FAYETTEVILLE, ARKANSAS = WATER AND SEWER SYSTEM REFUNDING REVENUE BONDS or SERIES 2002A AND SERIES 2002B Dated: May 1, 2002 Due: August 15, as shown below The Water and Sewer System Refunding Revenue Bonds, Series 2002A and Series 2002B (collectively, the "Series 2002 Bonds"), are being issued by the City of Fayetteville, Arkansas (the "City") for the purpose of refunding certain outstanding indebtedness of the City, funding a debt service reserve, a g and paying certain expenses in connection with the issuance of the Series 2002 Bonds. See the captions "ESTIMATED SOURCES AND USES OF FUNDS" and "THE REFUNDING PROGRAM" herein. a o The Series 2002 Bonds are issuable only as fully registered bonds and, when issued, will be registered in the name of Cede & Co., as nominee of The e Depository Trust Company ("DTC"), New York, New York, to which principal, premium, if any, and interest payments on the Series 2002 Bonds will be Too made so long as Cede & Co. is the registered owner of the Series 2002 Bonds. Individual purchases of the Series 2002 Bonds will be made only in book -entry . . form, in denominations of $5,000 or integral multiples thereof. Individual purchasers ("Beneficial Owners") of Series 2002 Bonds will not receive physical .a•a delivery of bond certificates. See the caption 'BOOK -ENTRY ONLY SYSTEM' herein. 'N t The Series 2002 Bonds shall bear interest from their dated date, payable on February IS and August IS of each year, commencing August I5, 2002. All such interest payments shall be payable to the persons in whose name such Series 2002 Bonds are registered on the bond registration books maintained by the `o '^ Bank of Oklahoma, N.A., Tulsa, Oklahoma, as trustee (the "Trustee"), as of the first day of the calendar month in which the applicable interest payment date falls. Principal of and premium, if any, on the Series 2002 Bonds shall be payable at the principal corporate trust office of the Trustee. So long as DTC or its o `o nominee is the registered owner of the Series 2002 Bonds, disbursement of such payments to DTC Participants is the responsibility of DTC, and the S disbursement of such payments to Beneficial Owners is the responsibility of DTC Participants or Indirect Participants, as more fully described herein. 'e o Pursuant to a Trust Indenture dated as of May 1, 2002, between the City and the Trustee, the principal of, premium, if any, and interest on the Series 2002 5 n� Bonds are secured by a pledge of the Net Revenues (as defined herein) of the water and sewer system (the "System") of the City. The pledge of Net Revenues -� securing the Series 2002 Bonds shall be junior and subordinate to the prior pledge of Net Revenues securing $7,350,000 outstanding principal amount of the City's Water and Sewer System Refunding Revenue Bonds, Series 1999. The City has covenanted to fix and maintain rates for System services which shall v c $ produce Net Revenues at least equal to (i) 125% of the current annual debt service on all indebtedness of the City to which System revenues are pledged, (ii) u the amount, if any, needed to fund debt service reserve deficiencies with respect to all indebtedness of the City to which System revenues are pledged, and (iii) v 8 the amount, if any, needed to make required deposits to the Renewal and Replacement Fund (as defined herein). See the caption "SECURITY FOR THE yBONDS" herein. The Series 2002A Bonds are not subject to redemption prior to maturity. The Series 2002B Bonds are subject to optional redemption prior 2 to maturity as more fully described herein under the caption "THE SERIES 2002 BONDS - Redemption." c = The Series 2002 Bonds are special obligations of the City secured by and payable solely from the Net Revenues of the System. The Series 2002 `—� Bonds do not constitute an indebtedness of the City within the meaning of any constitutional or statutory debt limitation or restriction. The issuance E O a' of the Series 2002 Bonds shall not directly, indirectly or contingently obligate the City to levy or pledge any taxes whatsoever or to make any $ 0 appropriation for the payment of the Series 2002 Bonds, except as described herein with respect to Net Revenues of the System. Si MATURITY SCHEDULE* i m $ Series 2002A Bonds '^ B Maturity Principal Interest Maturity Principal Interest m'S 9 (August 15) Amount Rate Price (August 15) Amount Rate Price y u 2002 $ % % 2006 $ % % L v 2003 2007 2004 2008 c Sc m 2005 $ Series 2002B Bonds S Maturity Principal Interest Maturity Principal Interest o P P � o (August 15) Amount Rate Price (August 15) Amount Rate Price € 3 2002 $ % % 2010 $ % 2003 2011 o c m 2004 2012 i E c 2005 2013 o , 2006 2014 .-9- 2007 2015 v c o 2008 2016 E 5 2009 2017 (Plus accrued interest) n v o The Series 2002 Bonds are offered when, as and if issued by the City and are subject to the final approving opinion of Kutak Rock LLP, Little Rock, a Arkansas. Bond Counsel. Certain matters will be passed upon for the City by its counsel, Kit Williams, Esq., City Attorney. It is expected that the Series 2002 o '; s Bonds will be available for delivery in New York, New York, on or about May __.2002. E g = Stephens Inc. a .a The date of this Official Statement is May __,2002. z � C O Ak r Preliminary; subject to change. CITY OF FAYETTEVILLE, ARKANSAS Issuer City Council Dan Coody, Mayor Bob Davis Lioneld Jordan Robert Reynolds Kevin Santos Brenda Thiel Trent Trumbo Cyrus Young Ted Webber, Administrative Services Director Greg Boettcher, Public Works Director Steve Davis, Budget Manager Heather Woodruff, City Clerk Kit Williams, City Attorney BANK OF OKLAHOMA, N.A. Tulsa, Oklahoma Trustee and Paying Agent KUTAK ROCK LLP Little Rock, Arkansas Bond Counsel STEPHENSINC. Little Rock, Arkansas Underwriter 10-32374.02 No dealer, broker, salesman or other person has been authorized by the City or by Stephens Inc. (the "Underwriter") to give any information or to make any representations, other than those contained herein; and, if given or made, such other information or representations must not be relied upon as having been authorized by either of the foregoing. This Official Statement does not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of any Series 2002 Bonds in any jurisdiction in which such offer is not authorized, or in which the person making such offer, solicitation or sale is not qualified to do so, or to any person to whom it is unlawful to make such offer, solicitation or sale. The information and expressions of opinion contained herein are subject to change without notice, and neither the delivery of this Official Statement nor any sale made hereunder shall, under any circumstances, create any implication that there has been no change in the affairs of the City or the System since the date hereof. THE SERIES 2002 BONDS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR HAS THE TRUST INDENTURE BEEN QUALIFIED UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, IN RELIANCE UPON CERTAIN EXEMPTIONS FROM SUCH REGISTRATION AND QUALIFICATION CONTAINED IN SUCH LAWS. CERTAIN INFORMATION CONTAINED HEREIN HAS BEEN OBTAINED FROM THE CITY, THE DEPOSITORY TRUST COMPANY AND OTHER SOURCES WHICH ARE BELIEVED TO BE RELIABLE. THE UNDERWRITER HAS REVIEWED THE INFORMATION IN THIS OFFICIAL STATEMENT IN ACCORDANCE WITH, AND AS PART OF, ITS RESPONSIBILITIES TO INVESTORS UNDER THE FEDERAL SECURITIES LAWS AS APPLIED TO THE FACTS AND CIRCUMSTANCES OF THIS TRANSACTION, BUT THE UNDERWRITER DOES NOT GUARANTY THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. IN CONNECTION WITH THIS OFFERING, THE UNDERWRITER MAY OVERALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SERIES 2002 BONDS AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME. TABLE OF CONTENTS IntroductoryStatement................................................................................................ TheSeries 2002 Bonds................................................................................................ Securityfor the Bonds................................................................................................... Book -Entry Only System............................................................................................. Estimated Sources and Uses of Funds........................................................................... TheRefunding Program................................................................................................. Estimated Debt Service Requirements......................................................................... Estimated Debt Service Coverage................................................................................ TheCity....................................................................................................................... TheSystem.................................................................................................................. Definitions of Certain Terms....................................................................................... Summary of the Indenture........................................................................................... Summary of the Continuing Disclosure Agreement .................................................... Underwriting................................................................................................................ TaxExemption............................................................................................................. Ratings.......................................................................................................................... LegalMatters................................................................................................................ FinancialStatements..................................................................................................... Miscellaneous............................................................................................................... Accuracy and Completeness of Official Statement...................................................... APPENDIX A - Audited General Purpose Financial Statements and Supplemental Financial Statements of the City for the year ended December 31, 2000 ............................ APPENDIX B - Unaudited Financial Statements of the City's Water and Sewer Fund for the year ended December 31, 2001............................................................................ APPENDIX C - Form of Bond Counsel Opinion........................................................................... .... A-1 ............. B- I ............. C-1 10-32374.02 :on .c s ti nii r t�151 �1►Y Y CITY OF FAYETTEVILLE, ARKANSAS WATER AND SEWER SYSTEM REFUNDING REVENUE BONDS SERIES 2002A AND SERIES 2002B INTRODUCTORY STATEMENT The following introductory statement is subject in all respects to the more complete information set forth in this Official Statement. All descriptions and summaries of documents hereinafter set forth are qualified in their entirety by reference to each such document. Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms under the caption "DEFINITIONS OF CERTAIN TERMS" herein. This Official Statement, including the cover page and the Appendices hereto, is furnished in connection with the offering of Water and Sewer System Refunding Revenue Bonds, Series 2002A in the principal amount of $ * (the "Series 2002A Bonds"), and Series 2002B in the principal amount of $ * (the "Series 2002B Bonds," and together with the Series 2002A Bonds, the "Series 2002 Bonds"), by the City of Fayetteville, Arkansas (the "City"). The City is a city of the first class organized and existing under the laws of the State of Arkansas (the "State"). The City is authorized under Amendment 65 to the Constitution of the State ("Amendment 65") and Arkansas Code Annotated (1998 Repl. & 2001 Supp.) §§14-164-401 et seq., §§14-234-201 et seq., and §§14-235-201 et seq. (collectively, and as from time to time amended, the "Act"), to issue and sell revenue bonds for the purpose of financing and refinancing the cost of improvements and betterments to its water and sewer system (the "System"). The Series 2002 Bonds are to be issued by the City pursuant to Amendment 65, the Act and Ordinance No. , adopted and approved on , 2002 (the "Authorizing Ordinance"), for the purpose of (i) refunding the City's $3,215,000 outstanding principal amount Water and Sewer System Revenue Bonds, Series 1994, (ii) refunding the City's $10,000,000 outstanding principal amount Water and Sewer System Subordinate Revenue Bonds, Series 2000, (iii) establishing a debt service reserve for the Series 2002 Bonds, and (iv) paying the costs of issuing the Series 2002 Bonds. See the captions "ESTIMATED SOURCES AND USES OF FUNDS" and `THE REFUNDING PROGRAM" herein. The Series 2002 Bonds are special obligations of the City, payable solely from and secured by a pledge of the Net Revenues (as defined herein) of the System on a junior and subordinate basis to the pledge of Net Revenues securing the payment of debt service on $7,350,000 outstanding principal amount of the City's Water and Sewer System Refunding Revenue Bonds, Series 1999 (the "Series 1999 Bonds"), and any additional bonds subsequently issued and secured on a parity basis with the Series 1999 Bonds. The Series 2002A Bonds and the Series 2002B Bonds will be issued and secured on a parity basis. The City has covenanted to fix and maintain rates for System services which shall produce Net Revenues at least equal to (i) 125% of the current annual debt service on all indebtedness of the City to which System revenues are pledged, (ii) the amount needed to fund debt service reserve deficiencies with respect to all indebtedness of the City to which System revenues are pledged, and (iii) the amount needed to make required deposits to the Renewal and Replacement Fund (as defined herein). See the captions "SECURITY FOR THE BONDS" and "SUMMARY OF THE INDENTURE" herein. The faith and credit of the City are not pledged to the payment of the Series 2002 Bonds, and the Series 2002 Bonds do not constitute an indebtedness of the City within the meaning of any constitutional or statutory debt limitation or restriction. The issuance of the Series 2002 Bonds shall not directly, indirectly or contingently obligate the City to levy or pledge any taxes whatsoever or to make any appropriation for the payment of the Series 2002 Bonds, except as described herein with respect to Net Revenues. * Preliminary; subject to change. 10-32374.02 Additional bonds may be issued on a parity of security with the Series 2002 Bonds under certain circumstances set forth in the Indenture (hereinafter defined). See the caption "THE SERIES 2002 BONDS - Additional Bonds" herein. The Series 2002 Bonds and any Additional Bonds are herein collectively referred to as the "Bonds." Additional bonds may be issued on a parity of security with the Series 1999 Bonds under certain circumstances set forth in Ordinance No. 4159 of the City adopted on April 20, 1999. See the caption "SECURITY FOR THE BONDS — Prior Bonds" herein. Pursuant to the provisions of a Continuing Disclosure Agreement dated as of the date of delivery of the Series 2002 Bonds, by and between the City and the Trustee (the "Continuing Disclosure Agreement"), the City has undertaken certain obligations with respect to providing ongoing disclosure of certain financial and operating data concerning the System and of the occurrence of certain material events. See the caption "SUMMARY OF THE CONTINUING DISCLOSURE AGREEMENT" herein. This Official Statement contains brief descriptions or summaries of, among other matters, the City, the System, the Series 2002 Bonds, the Continuing Disclosure Agreement, and the Trust Indenture dated as of May 1, 2002, (the "Indenture"), by and between the City and Bank of Oklahoma, N.A., Tulsa, Oklahoma, as trustee (the "Trustee"), pursuant to which the Series 2002 Bonds are issued and secured. Such descriptions and information do not purport to be comprehensive or definitive. All references herein to the Indenture and the Continuing Disclosure Agreement are qualified in their entirety by reference to each such documents, and all references to the Series 2002 Bonds are qualified in their entirety by reference to the definitive form thereof and the information with respect thereto included in the Indenture. Copies of the Continuing Disclosure Agreement, the Indenture, and the forms of Series 2002A Bond and Series 2002B Bond included therein, are available from the City by writing to the attention of the Administrative Services Director, City of Fayetteville, City Hall, 113 West Mountain, Fayetteville, Arkansas 72701 and, during the initial offering period only, from the Underwriter, Stephens Inc., 3425 North Futrall, Suite 201, Fayetteville, Arkansas 72703. Certain financial and operating data has been provided by the City from the audited records of the System and certain demographic information has been obtained from other sources which are believed to be reliable. THE SERIES 2002 BONDS Description. The Series 2002 Bonds will be initially dated as of May 1, 2002, and will bear interest payable semiannually on February 15 and August 15 of each year, commencing August 15, 2002, at the rates set forth on the cover page hereof. The Series 2002 Bonds will mature on August 15 in the years and in the principal amounts set forth on the cover page hereof. The Series 2002 Bonds are issuable only in the form of fully registered bonds and, when issued, will be registered in the name of Cede & Co., as nominee of The Depository Trust Company ("DTC"), New York, New York, to which principal, premium, if any, and interest payments on the Series 2002 Bonds will be made so long as Cede & Co. is the registered owner of the Series 2002 Bonds. Individual purchases of the Series 2002 Bonds will be made only in book -entry form, in denominations of $5,000 or integral multiples thereof. Individual purchasers ("Beneficial Owners") of Series 2002 Bonds will not receive physical delivery of bond certificates. See the caption "BOOK -ENTRY ONLY SYSTEM" herein. All interest payments on the Series 2002 Bonds shall be payable to the persons in whose name such Series 2002 Bonds are registered on the bond registration books maintained by the Trustee, as of the first day of the calendar month in which the applicable interest payment date falls. Principal of and premium, if any, on the Series 2002 Bonds shall be payable at the principal corporate trust office of the Trustee. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Series 2002 Bond to the extent of the sum or sums so paid. So long as DTC or its nominee is the registered owner of the Series 2002 Bonds, disbursement of such payments to DTC Participants is the responsibility of DTC, and the disbursement of such payments to Beneficial Owners is the responsibility of DTC Participants or Indirect Participants, as more fully described herein. Redemption. The Series 2002 Bonds are subject to redemption prior to maturity as follows: (a) The Series 2002A Bonds are not subject to redemption prior to maturity. (b) The Series 2002B Bonds are subject to redemption prior to maturity, at the option of the City, on and after August 15, 2012, in whole at any time or in part in inverse order of maturity (and selected by the Trustee by lot within a maturity) on any interest payment date, from funds from any source, at a 10-32374.02 2 redemption price of 100% of the principal amount of the Series 2002B Bonds being redeemed, plus accrued interest to the date of redemption. Partial Redemption of a Series 2002B Bond. In selecting Series 20028 Bonds for redemption prior to maturity, in the case any outstanding Series 2002B Bond is in a denomination greater than $5,000, each $5,000 of face value of such Series 2002B Bond shall be treated as a separate Series 2002B Bond in the denomination of $5,000; provided, however, that so long as DTC or its nominee is the sole registered owner of the Series 2002B Bonds, the particular Series 2002B Bonds or portions thereof to be redeemed within a maturity shall be selected by lot in such manner as DTC shall determine. Notice of Redemption. Notice of the call for any redemption, identifying the Series 2002B Bonds or portions thereof being called and the date on which they shall be presented for payment, shall be mailed by the Trustee by first class mail (or, so long as DTC or its nominee is the sole registered owner of the Series 2002B Bonds, by any other means acceptable to DTC, including facsimile) to the registered owner of each such Series 2002B Bond addressed to such registered owner at his registered address and placed in the mails not less than thirty (30) nor more than sixty (60) days prior to the date fixed for redemption; provided, however, that failure to give such notice by mailing, or any defect therein, shall not affect the validity of any proceeding for the redemption of any Series 2002B Bond with respect to which no such failure or defect has occurred. Any notice mailed as provided above shall be conclusively presumed to have been duly given, whether or not the registered owner receives the notice. Additional Bonds. The City may issue from time to time one or more series of Additional Bonds for the purpose of (i) financing Costs of Construction in connection with the acquisition, construction and equipping of Project facilities, (ii) refunding the Prior Bonds, the Series 2002 Bonds or any series of Additional Bonds or Subordinate Obligations, in whole or in part, or (iii) any combination thereof. Additional Bonds shall be secured equally and ratably with the Series 2002 Bonds and any other series of Additional Bonds theretofore issued and then Outstanding, except insofar as any terms or conditions of redemption or purchase established under the Indenture may afford additional benefit or security for the Bonds of any particular series. Before any Additional Bonds are authenticated, there shall be delivered to the Trustee the items required for the issuance of Bonds by the Indenture, plus a statement by a Qualified Accountant reciting the opinion, based upon necessary investigation, that the Net Revenues of the System for the Fiscal Year immediately preceding the Fiscal Year in which such Additional Bonds are to be issued were not less than (i) 130% of the average Annual Debt Service on all then outstanding Bonds, Prior Bonds and Subordinate Obligations, plus the Additional Bonds then proposed to be issued, (ii) the amount, if any, need to make required deposits to the Debt Service Reserve Fund and any debt service reserve funds with respect to the Prior Bonds and Subordinate Obligations, and (iii) the amount, if any, needed to make required deposits to the Renewal and Replacement Fund. If any changes have been made, and are in effect on the date of issuance of the Additional Bonds, in any rates and charges imposed by the City for System services which were not in effect during the entire preceding Fiscal Year, the Qualified Accountant may, if such changes resulted in increases in such rates and charges, and shall, if such changes resulted in reductions in such rates and charges, adjust the Net Revenues for the preceding Fiscal Year to reflect any changes in such Net Revenues which would have occurred if the changed rates and charges had been in effect during the entire preceding Fiscal Year. Notwithstanding any of the foregoing, no Additional Bonds shall be issued unless there is no default existing at the time of issuance under the Indenture. Subordinate Obligations. Nothing in the Indenture shall prevent the City from authorizing and issuing bonds, notes, bond anticipation notes, warrants, certificates or other obligations or evidences of indebtedness, the payment of the principal of and premium, if any, and interest on which shall be made from Revenues or Net Revenues or from a special fund to be established and maintained from Revenues or Net Revenues, provided payments from Revenues or Net Revenues or from Revenues or Net Revenues such special fund, and the lien and charge on such Revenues or Net Revenues, shall be made junior and subordinate to the lien, pledge and charge created in the Indenture for the security and payment of the Bonds and other payments under the Indenture, including, without limitation, the following payments out of Revenues specified by the Indenture: (i) payments of Operation and Maintenance Expenses; (ii) payments into the Bond Fund; (iii) payments into the Debt Service Reserve Fund; and (iv) payments into the Renewal and Replacement Fund. 10-32374.02 Transfer or Exchange. The Bonds may be transferred on the books of registration kept by the Trustee by the registered owner in person or by the owner's duly authorized attorney, upon surrender thereof, together with a written instrument of transfer duly executed by the registered owner or the owner's duly authorized attorney. Upon surrender for transfer of any Bond at the principal corporate office of the Trustee, the City shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Bond or Bonds of the same series and in the same aggregate principal amount and of any authorized denomination or denominations. Transfers of registration or exchanges of Bonds shall be without charge to the holders of such Bonds, but any taxes or other governmental charges required to be paid with respect to the same shall be paid by the holder of the Bond requesting such transfer or exchange as a condition precedent to the exercise of such privilege. The Trustee shall not be required to transfer or exchange any Bond during the period from and including a Record Date to the next succeeding interest payment date of such Bond nor to transfer or exchange any Bond after the mailing of notice calling such Bond for redemption has been made, and prior to such redemption. So long as DTC or its nominee is the sole registered owner of the Series 2002 Bonds, transfers of beneficial interests in the Series 2002 Bonds shall be in accordance with the rules and procedures of DTC and its direct and indirect participants. See the caption "BOOK -ENTRY ONLY SYSTEM" herein. SECURITY FOR THE BONDS General. The Bonds are special obligations of the City secured by and payable solely from the Net Revenues derived from operation of the System. The Bonds do not constitute an indebtedness of the City within the meaning of any constitutional or statutory debt limitation or restriction. The issuance of the Bonds shall not directly, indirectly or contingently obligate the City to levy or pledge any taxes whatsoever or to make any appropriation for the payment of the Bonds, except as described herein with respect to the Net Revenues of the System. Rate Covenant. The rates charged for services of the System heretofore fixed by ordinances of the City and the conditions, rights and obligations pertaining thereto, as set forth in said ordinances, are ratified, confirmed and continued by the Authorizing Ordinance. In the Indenture, the City covenants that the rates for System services will never be reduced while any of the Bonds are Outstanding unless there is obtained from a Qualified Accountant a certificate to the effect that Net Revenues, with the reduced rates, in the current Fiscal Year will be at least equal to (i) 125% of the average Annual Debt Service on all Bonds, Prior Bonds and Subordinate Obligations, (ii) the amount, if any, make required deposits to the Debt Service Reserve Fund and any debt service reserve funds with respect to the Prior Bonds and Subordinate Obligations, and (iii) the amount, if any, needed to make required deposits to the Renewal and Replacement Fund. The City further covenants that the rates for System services shall, if and when necessary, from time to time, be increased in such manner as will produce Net Revenues at least equal to (i) 125% of the current Annual Debt Service on all Bonds, Prior Bonds and Subordinate Obligations, (ii) the amount, if any, needed to make required deposits to the Debt Service Reserve Fund and any debt service reserve funds with respect to the Prior Bonds and Subordinate Obligations, and (iii) the amount, if any, needed to make required deposits to the Renewal and Replacement Fund. The Indenture defines "Net Revenues" as Revenues less Operation and Maintenance Expenses. Revenues include all fees, tolls, rates, rentals and charges levied and collected in connection with, and all other income and receipts of whatever kind or character derived by the City from, the operation of the System. Operation and Maintenance Expenses include all ordinary and necessary expenses of operation, repair, maintenance and insuring of the System under generally accepted accounting principles. Such term includes the cost of purchased water and payments to all taxing authorities, but does not include debt service and depreciation expense. Debt Service Reserve. From the proceeds of sale of each series of Bonds issued pursuant to the Indenture, there shall be deposited into the Debt Service Reserve Fund an amount which, together with the amounts then on deposit therein, will be equal to 50% of the aggregate maximum Annual Debt Service on all Outstanding Bonds in any Fiscal Year thereafter (the "Reserve Requirement"). If the amount in the Debt Service Reserve Fund is ever reduced below the Reserve Requirement, it shall be reimbursed to the Reserve Requirement through monthly payments, beginning not later than the fifth business day preceding the fifteenth day of the month immediately following the month in which the Debt Service Reserve Fund was reduced below the Reserve Requirement, and continuing not later than the fifth business day preceding the 10-32374.02 fifteenth day of each month thereafter until such reimbursement shall have been accomplished, from any funds in the Revenue Fund (after making the required deposits into the Operation and Maintenance Fund, into the Bond Fund and into the bond funds and debt service reserve funds with respect to the Prior Bonds, as provided in the Indenture), in an amount equal to 1/12 of the Reserve Requirement deficiency. If a surplus shall exist in the Debt Service Reserve Fund over and above the Reserve Requirement, such surplus shall be deposited into the Operation and Maintenance Fund, into the Bond Fund and into the bond funds and debt service reserve funds with respect to the Prior Bonds to the extent of any deficiency therein, then into the Renewal and Replacement Fund until it is fully funded, and then into the Revenue Fund. The moneys on deposit in the Debt Service Reserve Fund (i) shall be used to the extent necessary to prevent a default in the payment of Annual Debt Service on the Bonds and Trustee's and any Paying Agent's fees and (ii) may be used, together with other available funds, to provide for the payment at maturity or to redeem prior to maturity all, but not less than all, of the Outstanding Bonds. Prior Bonds. The City presently has outstanding approximately $7,350,000 of its Water and Sewer System Refunding Revenue Bonds, Series 1999 (the "Series 1999 Bonds"), secured by a prior pledge of the Net Revenues of the System. The pledge of Net Revenues securing the Bonds shall be on a junior and subordinate basis to the pledge of Net Revenues securing the Series 1999 Bonds and any additional bonds issued on a parity of security with the Series 1999 Bonds (collectively, the "Prior Bonds"). The Series 1999 Bonds have a final maturity date of August 15, 2012. The ordinance authorizing the issuance of the Series 1999 Bonds permits the issuance of additional parity indebtedness upon procurement of a statement by a certified public accountant or consulting engineer reciting the opinion that the Net Revenues of the System for each of the two Fiscal Years preceding the Fiscal Year in which such parity indebtedness is proposed to be issued were not less than 120% of the maximum annual debt service requirements on all outstanding Prior Bonds and the parity indebtedness then proposed to be issued. BOOK -ENTRY ONLY SYSTEM The Series 2002 Bonds will be issued only as one fully registered Series 2002 Bond for each maturity in each series, in the name of Cede & Co., as nominee for The Depository Trust Company, New York, New York ("DTC"), as registered owner of all the Series 2002 Bonds. The fully registered Series 2002 Bonds will be retained and immobilized in the custody of DTC. DTC (or any successor securities depository) or its nominee for all purposes under the Indenture will be considered by the City and the Trustee to be the owner or holder of the Series 2002 Bonds. Owners of any book entry interests in the Series 2002 Bonds (the "book entry interest owners") described below, will not receive or have the right to receive physical delivery of the Series 2002 Bonds, and will not be considered by the City and the Trustee to be, and will not have any rights as, owners or holders of the Series 2002 Bonds under the bond proceedings and the Indenture except to the extent, if any, expressly provided thereunder. CERTAIN INFORMATION REGARDING DTC AND DIRECT PARTICIPANTS IS SET FORTH BELOW. THIS INFORMATION HAS BEEN PROVIDED BY DTC. THE CITY, THE UNDERWRITER AND BOND COUNSEL ASSUME NO RESPONSIBILITY FOR THE ACCURACY OF SUCH STATEMENTS. DTC is a limited -purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code, and a "clearing agency" registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds securities that its participants ("Direct Participants") deposit with DTC. DTC also facilitates the settlement among Direct Participants of securities transactions, such as transfers and pledges, in deposited securities through electronic computerized book -entry changes in Direct Participants' accounts, thereby eliminating the need for physical movement of securities certificates. Direct Participants include securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is owned by a number of its Direct Participants and by the New York Stock Exchange, Inc., the American Stock Exchange LLC, and the National Association of Securities Dealers, Inc. Access to the DTC system is also available to others such as securities brokers and dealers, banks, and trust companies that clear through or maintain a custodial relationship with a Direct Participant, either directly or indirectly ("Indirect Participants"). The Rules applicable to DTC and its Direct and Indirect Participants are on file with the Securities and Exchange Commission. 10-32374.02 Purchases of Series 2002 Bonds under the DTC system must be made by or through Direct Participants, which will receive a credit for the Series 2002 Bonds on DTC's records. The ownership interest of each actual purchaser of each Series 2002 Bond ("Beneficial Owner") is in turn to be recorded on the Direct and Indirect Participants' records. Beneficial Owners will not receive written confirmation from DTC of their purchase, but Beneficial Owners are expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into the transaction. Transfers of ownership interests in the Series 2002 Bonds are to be accomplished by entries made on the books of Direct and Indirect Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests in Series 2002 Bonds, except in the event that use of the book -entry system for the Series 2002 Bonds is discontinued. To facilitate subsequent transfers, all Series 2002 Bonds deposited by Direct Participants with DTC are registered in the name of DTC's partnership nominee, Cede & Co. or such other name as may be requested by an authorized representative of DTC. The deposit of Series 2002 Bonds with DTC and their registration in the name of Cede & Co. or such other nominee do not effect any change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the Series 2002 Bonds, DTC's records reflect only the identity of the Direct Participants to whose accounts such Series 2002 Bonds are credited, which may or may not be the Beneficial Owners. The Direct and Indirect Participants will remain responsible for keeping account of their holdings on behalf of their customers. Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time. Neither DTC nor Cede & Co. (nor such other DTC nominee) will consent or vote with respect to the Series 2002 Bonds. Under its usual procedures, DTC will mail an Omnibus Proxy to the City as soon as possible after the Record Date. The Omnibus Proxy will assign Cede & Co.'s consenting or voting rights to those Direct Participants to whose accounts the Series 2002 Bonds are credited on the Record Date (identified in a listing attached to the Omnibus Proxy). Payment of debt service on the Series 2002 Bonds will be made to Cede & Co., or such other nominee as may be required by an authorized representative of DTC. DTC's practice is to credit Direct Participants' accounts, upon DTC's receipt of funds and corresponding detail information from the City or the Trustee on payable date in accordance with their respective holdings shown on DTC's records. Payments by Participants to Beneficial Owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in "street name," and will be the responsibility of such Participant and not of DTC, the Trustee or the City, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of debt service to Cede & Co. (or such other nominee as may be requested by an authorized representative of DTC) is the responsibility of the City or the Trustee, disbursement of such payments to Direct Participants shall be the responsibility of DTC, and disbursement of such payments to the Beneficial Owners shall be the responsibility of Direct and Indirect Participants. BENEFICIAL OWNERS SHOULD CONSULT WITH THE DIRECT PARTICIPANTS OR INDIRECT PARTICIPANTS FROM WHOM THEY PURCHASE A BOOK ENTRY INTEREST TO OBTAIN INFORMATION CONCERNING THE SYSTEM MAINTAINED BY SUCH DIRECT PARTICIPANTS OR INDIRECT PARTICIPANTS TO RECORD SUCH INTERESTS, TO MAKE PAYMENTS, TO FORWARD NOTICES OF REDEMPTION AND OF OTHER INFORMATION. THE CITY AND THE TRUSTEE HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY ASPECTS OF THE RECORDS OR NOTICES RELATING TO, OR PAYMENTS MADE ON ACCOUNT OF, BOOK ENTRY INTEREST OWNERSHIP, OR FOR MAINTAINING, SUPERVISING OR REVIEWING ANY RECORDS RELATING TO THAT OWNERSHIP. The Trustee and the City, so long as a book entry method of recording and transferring interest in the Series 2002 Bonds is used, will send any notice of redemption or of any Indenture amendment or supplement or other notices to Bondholders under the Indenture only to DTC (or any successor securities depository) or its nominee. Any failure of DTC to advise any Direct Participants, or of any Direct Participants or Indirect Participants to notify any Beneficial Owner, of any such notice and its content or effect will not affect the validity of the redemption of 10-32374.02 the Series 2002 Bonds called for redemption, the Indenture amendment or supplement, or any other action premised on notice given under the Indenture. The City and the Trustee cannot and do not give any assurances that DTC, Direct Participants, Indirect Participants or others will distribute payments of debt service on the Series 2002 Bonds made to DTC or its nominee as the registered owner of the Series 2002 Bonds, or any redemption or other notices, to the Beneficial Owners, or that they will do so on a timely basis, or that DTC will serve and act in a manner described in this Official Statement. DTC may discontinue providing its services as securities depository with respect to the Series 2002 Bonds at any time by giving reasonable notice to the City or the Trustee. Under such circumstances, in the event that a successor securities depository is not obtained, bond certificates are required to be printed and delivered. In addition, the City may decide to discontinue use of the system of book -entry transfers through DTC (or a successor securities depository). In that event, bond certificates will be printed and delivered. DTC advises that the current "Rules" applicable to DTC are on file with the Securities and Exchange Commission, and the current "Procedures" of DTC to be followed in dealing with DTC Participants are on file with DTC. ESTIMATED SOURCES AND USES OF FUNDS The proceeds of the Series 2002A Bonds are expected to be used as follows: Sources of Funds* Series 2002A Bond Proceeds Available Moneys in Series 1994 Bond Fund and Debt Service Reserve Fund Total Sources: $ Uses of Funds* Deposit to Series 1994 Bond Escrow Fund Debt Service Reserve Fund Deposit Costs of Issuance and Underwriter's Discount Total Uses: $ * Preliminary, subject to change. The proceeds of the Series 2002B Bonds are expected to be used as follows: Sources of Funds* Series 2002B Bond Proceeds $ Available Moneys in Series 2000 Bond Fund, Debt Service Reserve Fund and Project Fund Total Sources: $ Uses of Funds* Deposit to Series 2000 Bond Escrow Fund $ Debt Service Reserve Fund Deposit Costs of Issuance and Underwriter's Discount Total Uses: $ * Preliminary, subject to change. 10-32374.02 THE REFUNDING PROGRAM The proceeds of the Series 2002A Bonds will be used to accomplish an advance refunding of $3,215,000 outstanding principal amount of the City's Water and Sewer System Revenue Bonds, Series 1994, dated October 1, 1994 (the "Series 1994 Bonds"). The Series 1994 Bonds were issued to provide funds to finance various capital improvements to the water storage, transmission and distribution components of the System. The proceeds of the Series 2002B Bonds will be used to accomplish a current refunding of $10,000,000 outstanding principal amount of the City's Water and Sewer System Subordinate Revenue Bonds, Series 2000, dated November 1, 2000 (the "Series 2000 Bonds"). The Series 2000 Bonds were issued to provide funds to finance the initial expenses of the acquisition, construction and equipping of an additional wastewater treatment plant. See the caption "THE SYSTEM — Present System" herein. Upon the delivery of the Series 2002 Bonds, a portion of the proceeds thereof will be deposited with Bank of Oklahoma, N.A., Tulsa, Oklahoma, as escrow trustee (the "Escrow Trustee"), under an irrevocable Escrow Deposit Agreement (the "Escrow Agreement"), between the City and the Escrow Trustee. The proceeds derived from the Series 2002A Bonds will be held by the Escrow Trustee under the Escrow Agreement in trust for the holders of the Series 1994 Bonds, and will be sufficient to pay the principal, premium, and interest due on the Series 1994 Bonds when redeemed on August 15, 2004. The proceeds derived from the Series 2002B Bonds will be held by the Escrow Trustee under the Escrow Agreement in trust for the holders of the Series 2000 Bonds, and will be sufficient to pay the principal and interest due on the Series 2000 Bonds when redeemed on June 1, 2002. Amounts held by the Escrow Trustee will be irrevocably pledged for the benefit of the holders of the Series 1994 Bonds and the Series 2000 Bonds. After such deposits, the Series 1994 Bonds and the Series 2000 Bonds will no longer be deemed to be outstanding and will be secured solely by the amounts held by the Escrow Trustee. See the caption "SOURCES AND USES OF FUNDS" herein. The accuracy of (a) the arithmetical computations of the adequacy of the maturing principal amounts of the United States Treasury obligations and uninvested cash on hand in the Series 1994 escrow account under the Escrow Agreement to pay, when due, the principal of, premium, and interest on the Series 1994 Bonds being refunded, and (b) the mathematical computations supporting the conclusion that the Series 2002A Refunding Bonds are not "arbitrage bonds" under Section 148 of the Code, will be verified by Thomas & Thomas, Little Rock, Arkansas, independent certified public accountants. Such verification of mathematical accuracy and mathematical computations will be based upon the mathematical computations provided by the Underwriter. [THIS SPACE INTENTIONALLY BLANK] 10-32374.02 ESTIMATED DEBT SERVICE REQUIREMENTS As of the date of closing, the Series 1999 Bonds and the Series 2002 Bonds constitute the only debt obligations secured by Revenues of the System. The following table details amounts required to pay scheduled principal and interest on the Series 1999 Bonds and the Series 2002 Bonds during each year: Series 1999 Series 1999 Series 2002 Series 2002 Total Debt Year Principal Interest Principal(') Interest(�1 Service 2002 $ 485,000 $ 303,710 $ $ $ 2003 500,000 286,008 2004 525,000 267,257 2005 545,000 246,783 2006 565,000 225,255 2007 590,000 202,655 2008 615,000 178,760 2009 640,000 153,237 2010 665,000 126,358 2011 695,000 98,095 2012 1,525,000 67,862 2013 - - 2014 - - 2015 - - 2016 - - 2017 - Totals: $7-350.000 S2.155.980 $ $ $ Preliminary; subject to change. (2) Assuming for the purposes of this Preliminary Official Statement an average coupon rate of % on the Series 2002 Bonds. [THIS SPACE INTENTIONALLY BLANK] 10-32374.02 9 ESTIMATED DEBT SERVICE COVERAGE The following table shows estimated maximum and average annual debt service coverage with respect to the outstanding Series 1999 Bonds and Series 2002 Bonds utilizing historical Net Revenues of the System. 2000 2001 (Audited) (Unaudited) Historical Gross Revenues of the System $ $ Historical Operating Expenses Net Revenues Available for Debt Service(1l $ $ Maximum Annual Debt Service Requirement on Series 1999 Bonds and Series 2002 Bonds(�1 $ $ Average Annual Debt Service Requirement on Series 1999 Bonds and Series 2002 Bonds(2X3) $ $ Maximum Annual Debt Service Coverage X X Average Annual Debt Service Coverage Net Revenues means gross revenues of the System less the amounts required to pay the costs of operation, maintenance and repair of the System in accordance with generally accepted accounting principles applicable to municipal water systems (excluding depreciation, interest and amortization expenses). (�) See the caption "ESTIMATED DEBT SERVICE REQUIREMENTS" herein. (3) For the years 2002-2012 while both the Series 1999 Bonds and the Series 2002 Bonds will be outstanding. THE NET REVENUES AVAILABLE FOR SYSTEM DEBT SERVICE SET FORTH ABOVE ARE BASED ON THE HISTORICAL RESULTS OF OPERATION OF THE SYSTEM. FUTURE NET REVENUES AVAILABLE FOR DEBT SERVICE WILL DEPEND ON NUMEROUS FACTORS, AND THERE CAN BE NO ASSURANCE THAT FUTURE NET REVENUES AVAILABLE FOR SYSTEM DEBT SERVICE WILL APPROXIMATE SUCH HISTORICAL RESULTS. THE CITY General. The City is a city of the first class organized and existing under the laws of the State of Arkansas. The City is the seat of government of Washington County (the "County") and is the [sixth] largest city in the State. The City is located in the Metropolitan Statistical Area of Fayetteville/Springdale/Rogers (the "MSA"), which includes all of Washington and Benton Counties in the northwest comer of the State and is approximately 185 miles northwest of Little Rock, Arkansas, 125 miles east of Tulsa, Oklahoma, and 210 miles south of Kansas City, Missouri. The City is served by U.S. Interstate 540, U.S. Highways 62 and 71, and State Highways 16, 45, 112, 156, 180 and 265. The Burlington Northern Railroad has several lines running through the City, and a municipal airport with a 6,006 -foot runway is available for limited commuter travel. The Northwest Arkansas Regional Airport is located approximately 40 minutes from downtown Fayetteville and provides daily flights to numerous venues. Government. The City currently operates under the Mayor -Council form of government pursuant to which a mayor, city attorney, city clerk and eight aldermen are elected, two from each of the City's four wards. The mayor, city attorney and city clerk are full-time positions elected to four year terms. Aldermen also serve four year terms. There is currently one vacant alderman position. 10-32374.02 10 The City's elected officials and the dates on which their respective terms expire are as follows Name Office Term Expires Dan Coody Mayor 12/31/04 Kit Williams City Attorney 12/31/_ Heather Woodruff City Clerk 12/31/_ Bob Davis Alderman 12/31/_ Lioneld Jordan Alderman 12/31/ Robert Reynolds Alderman 12/31/_ Kevin Santos Alderman 12/31/_ Brenda Thiel Alderman 12/31/_ Trent Trumbo Alderman 12/31/ Cyrus Young Alderman 12/31/_ Population. The following is a table of population changes for the City, the MSA and the State of Arkansas, according to the United States Census Bureau: City of State of Year Fayetteville MSA Arkansas 1960 20,274 92,069 1,786,272 1970 30,729 127,846 1,923,322 1980 36,608 178,609 2,286,435 1990 42,099 210,908 2,350,624 2000 58,047 302,930 2,673,400 Economic Data. Per capita personal income figures for the MSA and the State of Arkansas are as follows: State of Year MSA Arkansas 1992 $18,260 $16,425 1993 18,765 16,995 1994 19,590 17,750 1995 20,193 18,546 1996 20,870 19,442 1997 21,586 20,228 1998 22,893 21,256 1999 24,213 22,223 Source: Bureau of Economic Analysis. 10-32374.02 11 Retail sales figures for the MSA and the State are as follows: MSA State of MSA as % of Year Arkansas State of Arkansas 1993 $1,880,105,000 $16,997,721,000 11.06% 1994 2,217,229,000 19,090,516,000 11.61 1995 2,486,425,000 20,998,923,000 11.84 1996 2,692,554,000 22,053,022,000 12.21 1997 2,845,968,000 22,872,236,000 12.44 1998 3,018,896,000 23,944,647,000 12.61 1999* n/a n/a n/a 2000 3,526,791,000 28,488,033,000 12.38 2001 3,806,422,000 29,652,693,000 12.84 * Methodology changed to calendar year basis. No reliable information is available for 1999. Source: Sales and Marketing Management Survey of Buyer Power. The following table shows the total assessed value of non -utility real and personal property within the City for the years indicated: Year Real Property Personal Property Total 1994 $245,093,513 $ 86,322,277 $331,415,790 1995 340,593,452 101,274,620 441,868,072 1996 359,369,202 113,157,365 472,526,567 1997 382,798,143 120,064,627 502,862,770 1998 401,001,338 127,575,096 528,576,434 1999 413,648,415 137,404,499 551,052,914 2000 432,951,171 145,147,891 578,099,062 2001 486,853,822 155,794,579 642,648,401 Source: Washington County Tax Assessor's Office. The assessed value represents 20% of the appraised value of property. Building permits issued by the Cityt° are shown below for the years indicated: 1997 Residential Building 326 Permits Commercial Building 39 Permits Value of All Building Permits $59,288,194 1998 1999 2000 2001 304 40 $51,948,911 $ $ $ (1) Does not include building activity of the University of Arkansas, school permits and additions/alterations to existing structures. Source: City of Fayetteville. 10-32374.02 12 C Unemployment figures for the MSA and the State of Arkansas, according to the U.S. Bureau of Labor Statistics, are as follows: Year MSA State of Arkansas 1994 2.4% 5.3% 1995 2.4 4.9 1996 2.9 5.4 1997 3.0 5.3 1998 3.2 5.5 1999 2.4 4.5 2000 2.1 4.4 2001 N/A 5.1 2002• N/A 5.9 * January only. Employment and Industry. The principal campus of the University of Arkansas is located in the City and had total enrollment for the Spring semester of 2002 of approximately 15,000. For the 2001-02 fiscal year ending June 30, 2002, the University has an operating budget in excess of $98.7 million, which does not include the agricultural experimentation station or other associated operations. On the Fayetteville campus, the University employs approximately 2,635 faculty, administrative, secretarial, clerical and maintenance personnel in both full- time and part-time positions, making the University the largest employer in the City. Other major employers in the City, their products or services and approximate number of employees are set forth below: Employer Product or Service Employee Range Campbell Soup Co. Frozen Dinners 1,000-2,499 Superior Industries Cast Aluminum Wheels 1,000-2,499 Tyson's Original Mexican Mexican Food Products 500-599 Tyson's Entree Division Frozen Dinner Entrees 500-599 Levi Straus Jackets 300-399 McClinton -Anchor Co. Limestone & Hot Mix 300-399 American Air Filter Air Filters 200-299 Baldwin Piano & Organ Elec. Organs & Circ. Bed 200-299 Marshalltown Tools Cement Finishing Tools 200-299 Standard Register Business Forms 200-299 Danaher Tool Group Hand tools 100-199 Kearney Company Hi -Line Connectors 100-199 Source: Fayetteville Chamber of Commerce. 10-32374.02 13 THE SYSTEM Water Supply. The water supply for the City is provided by the Beaver Water District of Benton and Washington Counties, Arkansas (the "District"), which is the source of supply for an approximate population of [180,000] people in northwest Arkansas. The District was organized as a public water distribution district by order of the Benton County Circuit Court on July 17, 1959 for the purpose of obtaining water storage rights in Beaver Reservoir from the U.S. Corps of Engineers, and supplying treated water to municipalities within Benton and Washington counties. Through the joint efforts of the cities of Bentonville, Fayetteville, Rogers and Springdale, Arkansas (the "Participating Cities"), the District entered into a contract with the U.S. Corps of Engineers providing for the supply to the District of up to 120 million gallons of water per day ("mgd"). The Beaver Reservoir has a capacity of 1,952,000 acre feet. The District currently has a firm pumping capacity of [27] mgd to the City. The District's facilities are located on a 300 acre site owned by the District approximately 2 1/2 miles east of Lowell, Arkansas, near its intake structure on Beaver Reservoir. The District's water treatment plant has a present nominal design capacity of [80] mgd with a current peak demand of [63.7] mgd. The District's 1996 master plan indicates that an expansion of capacity will be undertaken when peak demand exceeds 70 mgd. Water Supply Contracts with Beaver Water District. In 1967, the District and the Participating Cities entered into a Memorandum of Understanding and Contract for Construction, Maintenance, Operation and Expansion of Beaver Water Supply Facilities (the "Memorandum of Understanding"). Pursuant to the Memorandum of Understanding, the District agreed to construct, operate, maintain and expand a drinking water treatment plant as required to meet the then present and future needs of the Participating Cities. The Participating Cities agreed to build and maintain their own water supply lines from the point of the water discharge at the District's drinking water treatment plant to their respective distribution systems. The Participating Cities are also permitted to serve, through their distribution systems, other smaller cities and other approved water distribution agencies within Benton and Washington counties. The Memorandum of Understanding provides that the Participating Cities will make payments to the District for drinking water used by each Participating City based on the total cost to the District of the water delivered, including, but not limited to, amortization of the District's indebtedness, operation and maintenance of the District's facilities and the cost of the expansion of the District's facilities. The District issued water revenue bonds in 1990 and 1991 to finance a 40 mgd expansion to the then existing water treatment facility. The 1990 and 1991 water bonds were defeased with 1994 water revenue bonds dated as of June 1, 1994. The Participating Cities' obligations to make payments under the Memorandum of Understanding are evidenced, as to each Participating City, by water rate ordinances duly enacted in accordance with State law. While each Participating City has agreed, in principle, to make payments to the District sufficient to pay its proportionate share of the District's cost of providing water, the Participating Cities' sources of payment are limited to revenues from their respective water systems pursuant to these water rate ordinances. The revenues derived from these water rate ordinances are not pledged by the Participating Cities to the repayment of the District's bonds and are subject to the debt requirements on any outstanding bonds of the Participating Cities secured by water revenues. Payments made to the District by the Participating Cities are considered by the Participating Cities to be operating expenses. The water supply contracts further provide that the Participating Cities agree to buy their water from the District as long as there are bonds of the District outstanding. The 1994 water revenue bonds are currently the only outstanding bonded indebtedness of the District, although the District has preliminary plans to issue additional bonds within the next two years. As of December 31, 2001, the 1994 water revenue bonds were outstanding in the principal amount of $19,500,000, and had a scheduled final maturity in 2009. The costs of the water storage rights are treated as a cost of water produced and therefore the Participating Cities pay based on water consumption. The City treats these costs as Operation and Maintenance Expenses of the System and they are to be paid from Revenues deposited to the Operation and Maintenance Fund prior to the payment of debt service on the Prior Bonds or the Series 2002 Bonds. The contracts between the City and the District provide, among other things, that when the District constructs additional improvements, the District and the City (along with the other Participating Cities named above) will enter into supplemental contracts increasing the required payments to amounts sufficient to enable the 10-32374.02 14 District to provide for the payment of all of its outstanding bonds, including any bonds issued by the District to finance the construction of the additional improvements. It is the City's understanding that the District presently intends to issue additional bonds within the next two years to finance an expansion to its water intake and treatment facilities. As such expansion is currently contemplated, the additional bonds would be issued in a principal amount in excess of $80 million. The City has received no information from the District as to the potential impact of the additional bonds on future water prices. The District's total water sales for the previous two fiscal years ending September 30 are represented in the following table: City 2000 2001 Fayetteville $ $ Springdale Rogers Bentonville TOTALS: $ $ Source: Audited Financial Statements of the District dated September 30, 2000 and 2001. Each Participating City is billed monthly based on metered water consumption and effective rates at that time for drinking water purchased. On the basis of the District's annual audit, a cost for providing service to the Participating Cities is determined. Based on the District's annual operating costs, a charge or credit is then applied to each City for under- or over -payment for the drinking water used in that year. The rates charged by the District to the Participating Cities since 1967 for the cost of water delivered are as follows: Effective Date Rate Per Million Gal. Effective Date Rate Per Million Gal. 1967 $180.00 12-1-86 $ 410.00 9-1-77 270.00 2-1-89 610.00 9-1-82 320.00 2-1-90 810.00 11-1-85 370.00 2-1-91 1,010.00 [There have been no rate changes since 1991.] Customers. At December 31, 2001, the City had approximately water customers and sewer customers. [Water customers are billed solely on the basis of water usage and meter and line size. See the caption "THE SYSTEM — Rate Structure" below. Consequently, water customers are not categorized by the City.] The following table classifies sewer customers for the years indicated: 2001 2000 1999 1998 1997 Residential Commercial/Industrial Outside City Limits Totals: Source: City of Fayetteville. 10-32374.02 15 The System's 10 largest water customers, based upon water revenues produced during 2001, are as follows: Percentage of 2001 Customer Total Revenues Water Revenues Source: City of Fayetteville. Historical Statistics. The following table shows historical water usage statistics for the water distribution component of the System: Average Daily Use Maximum Days' Use Year in Million Gallons in Million Gallons 1992 10.20 MG 17.84 MG 1993 10.70 MG 17.95 MG 1994 10.62 MG 18.94 MG 1995 12.45 MG 21.50 MG 1996 12.55 MG 21.50 MG 1997 12.33 MG 20.53 MG 1998 13.26 MG 23.80 MG 1999 MG MG 2000 MG MG 2001 MG MG Source: City of Fayetteville. The following table shows historical sewer treatment statistics for the wastewater treatment component of the System: Average Daily Flow Year in Million Gallons 1992 10.40 MG 1993 11.90 MG 1994 11.35 MG 1995 11.73 MG 1996 11.69 MG 1997 11.01 MG 1998 11.22 MG 1999 MG 2000 MG 2001 MG Source: City of Fayetteville. 10-32374.02 16 Present System. As described above under this caption in the subcaptions "- Water Supply" and "- Water Supply Contracts With Beaver Water District," the City purchases treated water from the Beaver Water District. The City distributes such treated water to its residents as well as to the residents of certain surrounding cities and communities as described below. The City presently owns and operates a single wastewater treatment plant serving residents of the City and surrounding areas. The water distribution component of the System is made up of approximately [470] miles of water main, [1,625] fire hydrants, [260] miles of service lines and approximately [29] million gallons of storage capacity held in [ 14] water storage tanks. [The water distribution component of the System provides service to the City, to the Cities of Farmington and Greenland, to parts of the City of Johnson, and to other rural areas surrounding the City. Wholesale service is provided to the Cities of Elkins and West Fork, to the Mount Olive Rural Water System and to the Rural Development Authority of Washington County, Arkansas.] [The City currently has no written agreements with respect to the provision of its water services to, and the operation of the water systems of, the Cities of Farmington, Greenland and Johnson. Continuing water sales and the operation of these systems is based on terms and provisions of expired contracts and mutual understandings between the City and each of the Cities of Farmington, Greenland and Johnson. There can be no assurance that these relationships will continue in the future. The City has a current contract in place with respect to wholesale service to the Mount Olive Rural Water System and is currently in the process of renegotiating wholesale contracts with the City of West Fork and with the Rural Development Authority of Washington County, Arkansas. There is no written agreement currently in force with respect to the sale of water to the City of Elkins, and continuing sales are based on the terms and provisions of an expired contract and mutual understandings between the City and the City of Elkins.] The sewage collection component of the System consists of approximately [430] miles of sewer main and [7,400] manholes. The type of pipe in the sewage collection system is principally vitrified clay pipe with varying amounts of ABS composite pipe, plastic pipe and cast iron pipe. The age of the sewage collection system varies from new to 85 years. The City has implemented an ongoing sewer rehabilitation program with over $_ million spent in related capital improvements through 2001. Sewer collection and treatment services are provided to residents of the City, [to the Cities of Farmington and Greenland, and to small parts of the City of Johnson]. Some rural residents in the City's growth area also receive sewer collection and treatment service. [Wholesale service is provided to the City of Elkins.] Total revenues collected for water and sewer services to nonresidents of the City represented approximately _% of total revenues of the System during 2001. Revenues collected for water services to nonresidents represented approximately % of the total revenues of the System during 2001. The Rural Development Authority of Washington County, Arkansas was the largest nonresident water customer accounting for approximately _°/o of total revenues of the System during 2001. Revenues collected for sewer services to nonresidents of the City represented approximately % of total revenues of the System during 2001. The City of Farmington was the largest nonresident sewer customer accounting for approximately _% of total revenues of the System during 2001. When added together, the water and sewer service revenues derived from the City of Farmington accounted for approximately _% of total revenues of the System during 2001. The City's existing wastewater treatment plant ("WWTP") went into operation in 1987. Treatment stages consist of the plant headworks (bar screens, vacutators and influent lift station), primary sedimentation, aeration basins, secondary sedimentation basins, biological and chemical nutrient removal, and U.V. disinfection. The sludge treatment process consists of aerobic digestion disposal by land application. Average daily flow treated was mgd in 2001. Average peak flows in 2001 were approximately mgd. The WWTP is operated on a contract basis by Operations Management International. The WWTP was originally designed to meet the needs of the City through 2005. A comprehensive study of the System was completed in February of 1997. The study's conclusions included recommendations for enhancing facilities at the existing wastewater treatment plant and a proposal to construct a new wastewater treatment facility west of the City. A site for the new plant has been acquired and preliminary design reports have been prepared. The new wastewater treatment facility is presently expected to be under construction by the quarter of 20 and completed by the quarter of 20_. The new facility will be designed with a wastewater treatment capacity of MGD. Projected Capital Expenditures. The City anticipates the cost of contemplated expansions and capital improvements to the System over the next five years, including the construction of the wastewater treatment plant, 10-32374.02 17 to be as set forth in the following table. Said expansions and improvements are expected to be financed from a combination of System revenues and the receipts from a dedicated 3/4% City sales and use tax (the "Sales Tax") approved by the voters of the City at an election held November 6, 2001. Collection of the Sales Tax commences on April 1, 2002. Pursuant to the election, Sales Tax revenues are dedicated to the payment of debt service on obligations to be issued to finance wastewater treatment and sewerage improvements. The precise breakdown of funding sources for the new wastewater treatment plant has yet to be finalized; however, it is likely that the costs thereof will be financed by a combination of sources, including, but not limited to, System revenues and proceeds from debt issuances secured by System revenues and/or Sales Tax revenues. 2002' 2003 2004 2005 2006 Miscellaneous Water System Improvements $ $ $ $ $ Miscellaneous Sewer System Improvements Wastewater Treatment Plant Expansion TOTALS: $ $ $ $ $ I From the City's 2002 annual budget. Source: Public Works Director, City of Fayetteville, Arkansas. Rate Structure. Effective November 1, 1997, the following tables set forth the City's current water and sewer rate structure: WATER RATES Monthly Treated Water Rates Usage Rate (in gallons) Inside City Outside City First 10,000 $2.55 $3.20 Next 290,000 2.20 2.75 Next 4,700,000 1.60 2.00 Over 5,000,000 1.45 1.80 Monthly Meter Service Charge Meter Size (inches) Inside City Outside City 5/8 $ 3.53 $ 4.48 3/4 3.77 4.79 1 4.90 6.22 8.60 10.92 2 12.45 15.81 3 29.00 36.83 4 48.00 60.96 6 96.00 121.92 8 144.00 182.88 Monthly Standby Fire Protection Service Charge Line Size (inches) Inside/Outside City 2 $ 6.00 3 18.00 4 36.00 6 100.00 8 210.00 10 360.00 Monthly Wholesale Treated Water Rates (Outside City Limits) Usage Rate Per 1,000 Gallons $ 2.70 Reduced Demand 2.49 Meter Charge 58.20 10-32374.02 18 L SEWER RATES Monthly Quantity Charge User Type Usage Rate Per 1,000 Gallons Residential $2.39 Commercial/Industrial 1.87 Outside City Limits 4.00 City of Elkins 1.80 Monthly Service Charge Meter Size (inches) Inside City Outside City 5/8 $ 8.00 $ 9.60 3/< 9.25 11.10 1 10.40 12.48 1%: 14.54 17.45 2 19.36 23.23 3 40.40 48.48 4 71.11 85.33 6 135.75 162.90 8 213.08 255.70 Charges to Residents Within Wedington Sewer Improvement District No. I Family Size Flat Charge Per Month I to 2 members (based on 4,600 gallons) $18.99 3 or more members (based on 7,500 gallons) 25.93 Abnormal Sewage Surcharge BOD unit charge p/pou SS unit charge p/pou Source: City of Fayetteville. $0.2061 0.1030 Rate Comparison. The following is a comparison of the monthly water and sewer charges for the City of Fayetteville with the charges of other area municipalities, based upon combined water and sewer charges for the average residential unit with 6,000 gallons of water consumption per month: City Cost Per Month Fayetteville $[41.17] Bentonville [44.02] Fort Smith [22.12] Rogers [38.101 Springdale [23.17] Source: City water and sewer departments. 10-32374.02 19 0 Billing Procedures, Delinquency and Uncollectible Accounts. The City Code of Ordinances provides that bills for water and sewer services are rendered in the net amount due. Water bills are due and payable on or before the twentieth day following the billing date stated on the water bill. Currently, water bills not paid on or before the due date are considered delinquent and an additional charge of 10% of the total current bill is assessed against the account. In the event that bills due the City for water service are not paid on or before the twentieth day following the billing date stated on the water bill, notice by mail is sent to each customer concerned advising him that such bill is due and payable immediately. Should any delinquent bill remain unpaid, the appropriate ordinance provides that service will be discontinued on the twenty-eighth day following the billing date stated on the water bill, and the customer's deposit will be forfeited in an amount sufficient to cover the gross amount of his due bill. The forfeiture of the deposit will take place if the customer has not paid the delinquent bill plus all applicable service charges within seven days after disconnection. If the forfeited deposit is not sufficient to cover the delinquent bill plus all applicable service charges and the bill is delinquent by more than 90 days, the matter is turned over to a collection agency. Over the last five years, the City's bad debt expense experience has been as follows: Fiscal Year Ending Water and Sewer Bad Debt Bad Debt December 31 Operating Revenues Expense Percentage 1997 $17,682,426 $77,086 .44% 1998 19,416,264 91,518 .47 1999 19,356,739 90,250 .47 2000 2001 (REMAINDER OF PAGE INTENTIONALLY BLANK] 10-32374.02 20 • Financial Information. Set forth in Appendix A to this Official Statement are the audited general purpose financial statements and supplemental financial statements of the City for the year ended December 31, 2000, which financial statements have been audited by Arthur Andersen, LLP, independent certified public accountants, as stated in their report also appearing in Appendix A. The notes set forth in Appendix A are an integral part of such financial statements, and the statements and notes should be read in their entirety. Following is a summary of revenues, expenses and changes in fund equity of the City's Water and Sewer Fund for the five years ended December 31, 2001. Information for the summary for the years ended December 31, 1997, 1998, 1999 and 2000 was derived from the financial statements of the City audited by Arthur Andersen, LLP, independent certified public accountants. The audits were performed for the purpose of rendering an opinion on the general purpose financial statements of the City taken as a whole, and not for the purpose of rendering an opinion on the fair presentation of the City's Water and Sewer Fund. Information for the summary for the year ended December 31, 2001 was derived from the unaudited financial statements of the City's Water and Sewer Fund attached as Appendix B to this Official Statement. The following table should be read in conjunction with the audited financial statements and related notes in Appendix A and the unaudited financial statements in Appendix B. City of Fayetteville, Arkansas Water and Sewer Fund Statement of Revenues, Expenses and Changes in Fund Equity For the Years Ended December 31, 1997 1998 1999 2000 20011° Operating revenues: Water services $ 9,842,621 $ 11,094,325 $ 10,717,253 $10,874,563 Sewer services 7.839.805 8,321.939 8.639.486 8.587.859 Total operating revenues 17,682,426 19,416,264 19,356,739 19,462,422 Operating expenses: Operations and administration 2,246,500 2,350,368 2,430,483 2,410,107 Water supply 3,628,302 3,737,587 3,528,175 3,748,951 Water transmission and distribution 967,880 937,419 1,180,593 1,057,616 Sewer collection 999,872 1,070,428 1,131,662 1,137,836 Wastewater treatment 3,441,015 3,734,472 3,970,703 3,919,332 Customer service 1,192,183 1.480.280 1.513.294 1.414.992 Total operating expenses before depreciation 12.475.752 13.310,552 13,754.910 13.688.834 Operating income before depreciation 5,206,674 6,105,712 5,601,829 5,773,588 Depreciation 4.679.448 4.818.553 1432.070 3.568.916 Operating income 527,226 1,287,159 2,169,759 2,204,672 Nonoperating income (expense) Intergovernmental 279,056 260,006 550,000 915,000 Interest expenses and fees (788,899) (759,063) (670,521) (651,383) Interest income 677,664 779,724 729,392 791,237 Net increase in fair value of investments — 6,956 (23,579) 82,003 Other 198.175 166.966 197.442 111.836 Total nonoperating income (expense) 365,996 454.589 782.734 1,248,693 Income before operating transfers 893,222 1,741,748 2,952,493 3,453,365 Operating transfers in - 5,000 - - Operating transfers out - — - Net income 893,222 1,746,748 2,952,493 3,453,365 Add back depreciation on assets acquired with contributed capital 3.274.351 3.446.222 2,163.774 2.596.745 Increase in retained earnings 4,167,573 5,192,970 5,116,267 6,050,110 Retained earnings, beginning of year 43,357,925 47,525,498 52,714,552 57,721,928 Cumulative effect of change in accounting principle - (3,916) (108,891) - Retained earnings, beginning of year, as restated 43.357.925 47.521.582 52,605,661 57.721.928 Retained earnings, end of year 47,525,498 52,714,552 57,721,928 63,772,038 Contributed capital, beginning of year 45,292,067 44,061,834 45,180,987 46,356,387 Capital contributions 2,044,118 4,565,375 3,474,102 3,535,034 Cumulative effect of change in accounting principle - - (134,928) - Depreciation on assets acquired with contributed capital (3.274,35 I) (3.446.222) (2.163.774) (2,596,745) Contributed capital, end of year 44.061.834 45.180.987 46.356.387 47.294.676 Total fund equity, end of year CI) Unaudited. 10-32374.02 21 DEFINITIONS OF CERTAIN TERMS The following are definitions of certain terms used in this Official Statement: "Act" — Arkansas Code Annotated (1998 Repl. and Supp. 2001) §§ 14-164-401 et seq., §§ 14-234-201 et seq. and §§ 14-235-201 et seq., as from time to time amended. "Additional Bonds" — Bonds in addition to the Series 2002 Bonds which are issued under the provisions of the Indenture. "Annual Debt Service" — With respect to all or any particular amount of Bonds, Prior Bonds or Subordinate Obligations, as the case may be, the Debt Service for any particular Fiscal Year required pursuant to the provisions of the Indenture to be paid or set aside during such Fiscal Year, less the amount of such payment which is provided from the proceeds of the sale of Bonds, Prior Bonds or Subordinate Obligations or from sources other than Net Revenues. "Authorizing Ordinance" — Ordinance No. of the City, adopted and approved on March , 2002, authorizing the issuance of the Series 2002 Bonds pursuant to the Indenture. "Bond Counsel" — Any firm of nationally recognized municipal bond counsel selected by the City and acceptable to the Trustee. "Bond Fund" — The fund by that name created and established in the Indenture. "Bonds" — The Series 2002 Bonds and all Additional Bonds issued by the City pursuant to the Indenture. "City" — The City of Fayetteville, Arkansas, a municipality and political subdivision under the laws of the State of Arkansas. "Code" — The Internal Revenue Code of 1986, as from time to time amended, and applicable regulations issued or proposed thereunder. "Cost of Issuance Fund" — The fund by that name created and established in the Indenture. "Debt Service" — With respect to all or any particular amount of Bonds, Prior Bonds or Subordinate Obligations, as the case may be, the total as of any particular date of computation and for any particular period of the scheduled amount of interest and amortization of principal payable on such Bonds, Prior Bonds or Subordinate Obligations, excluding amounts scheduled during such period which relate to principal which has been retired before the beginning of such period. "Debt Service Reserve Fund" — The fund by that name created and established in the Indenture. "Depository" — A national or state banking corporation or association (which may also include the Trustee and any Paying Agent) which holds membership in the Federal Deposit Insurance Corporation. "Escrow Agreement" means the Escrow Deposit Agreement dated May_, 2002, between the City and the Escrow Trustee, providing for the redemption of the Series 1994 Bonds and the Series 2000 Bonds. "Escrow Trustee" means Bank of Oklahoma, N.A., in its capacity as escrow trustee under the Escrow Agreement. "Event of Default" — Any event of default specified in the Indenture. See the caption "SUMMARY OF THE INDENTURE — Events of Default" herein. "Fiscal Year" — The 12 -month period used, at any time, by the City for accounting purposes with respect to the System, which may be the calendar year. Currently, the fiscal year of the City ends on December 31 of each year. "Government Securities" — (i) bonds, notes, certificates of indebtedness, treasury bills or other securities constituting direct obligations of, or obligations on which the full and timely payment of principal and interest is fully and unconditionally guaranteed by, the United States of America (including any such securities issued or held in book -entry form on the books of the Department of Treasury of the United States of America), and (ii) evidences of direct ownership or proportionate or individual interest in future interest or principal payments on specified direct obligations of, or obligations on which the full and timely payment of principal and interest is fully and unconditionally guaranteed by, the United States of America, which obligations are held by a bank or trust company 10-32374.02 22 organized and existing under the laws of the United States of America or any state thereof in the capacity of custodian in form and substance satisfactory to the Trustee. "Holder" or "bondholder" or "owner of the Bonds" — The registered owner of any Bond. "Indenture" — The Trust Indenture dated as of May 1, 2002, between the City and the Trustee, pursuant to which the Bonds are issued, and any amendments and supplements thereto. "Investment Securities" — If and to the extent the same are at the time legal for investment of funds held under the Indenture: (a) Government Securities; (b) bonds, notes or other obligations of any state of the United States of America or any political subdivision of any state, which at the time of their purchase are rated in either of the two highest rating categories by a nationally recognized Rating Agency; (c) certificates of deposit or time or demand deposits constituting direct obligations of any bank, bank holding company, savings and loan association or trust company organized under the laws of the United States of America or any state thereof (including the Trustee or any of its affiliates), except that investments may be made only in certificates of deposit or time or demand deposits which are: (1) insured by the Federal Deposit Insurance Corporation, or any other similar United States Government deposit insurance program then in existence; or (2) continuously and fully secured by Government Securities, which have a market value, exclusive of accrued interest, at all times at least equal to the principal amount of such certificates of deposit or time or demand deposits; (d) repurchase agreements with any bank, bank holding company, savings and loan association, trust company or other financial institution organized under the laws of the United States of America or any state thereof (including the Trustee or any of its affiliates), that are continuously and fully secured by Government Securities and which have a market value, exclusive of accrued interest, at all times at least equal to the principal amount of such repurchase agreements, provided that each such repurchase agreement conforms to current industry standards as to form and time, is in commercially reasonable form, is for a commercially reasonable period, results in transfer of legal title to identified Government Securities which are segregated in a custodial or trust account for the benefit of the Trustee, and further provided that Government Securities acquired pursuant to such repurchase agreements shall be valued at the lower of the then current market value thereof or the repurchase price thereof set forth in the applicable repurchase agreement; (e) short term discount obligations of the Federal National Mortgage Association and the Government National Mortgage Association; and (f) money market mutual funds (1) that invest in Government Securities or that are registered with the federal Securities and Exchange Commission (SEC), meeting the requirements of Rule 2a-7 under the Investment Company Act of 1940, and (2) that are rated in either of the two highest categories by a nationally recognized Rating Agency. "Net Revenues" — Revenues less Operation and Maintenance Expenses. "Operation and Maintenance Expenses" — For any period, all ordinary and necessary expenses of operation, repair, maintenance and insuring of the System under generally accepted accounting principles, except that there shall not be included (i) any allowance for depreciation, (ii) any deposits or transfers to the credit of (a) the Bond Fund or to any fund or account created for the payment of debt service on the Prior Bonds or any Subordinate Obligations, (b) the Debt Service Reserve Fund or any debt service reserve fund or account created in connection with the Prior Bonds or any Subordinate Obligations, or (c) the Renewal and Replacement Fund, or (iii) any payments with respect to obligations not payable in whole or in part under any circumstances from Revenues. Operating Expenses shall specifically include obligations of the City to the Beaver Water District of Benton and Washington Counties, Arkansas. "Operation and Maintenance Fund" — The fund by that name described in the Indenture. 10-32374.02 23 "Outstanding" — When used with reference to the Bonds, as of any particular date, the aggregate of all Bonds authenticated and delivered under the Indenture except: (a) Bonds cancelled at or prior to such date or delivered to or acquired by the Trustee at or prior to such date for cancellation; (b) Bonds deemed to be paid in accordance with Article Vlll of the Indenture; and (c) Bonds in lieu of or in exchange or substitution for which other Bonds shall have been authenticated and delivered pursuant to the Indenture. "Paying Agent" — Any bank or trust company named by the City as the place at which the principal of and premium, if any, and interest on the Bonds are payable. "Permitted Encumbrances" — (i) Any mortgage lien for the security of the Bonds or the Prior Bonds; (ii) liens for taxes, assessments and other governmental charges not then delinquent or which can be paid without penalty; (iii) unfiled, inchoate mechanics' and materialmen's liens; (iv) workmen's, repairmen's, warehousemen's, and carriers' liens and others similar liens, if any, arising in the ordinary course of business; and (v) any easements, restrictions, mineral, oil, gas and mining rights and reservations, zoning laws and defects in title or other encumbrances to which System facilities may be subject because of their acquisition, construction and installation as part of the System. "Person" — Any natural person, firm, association, corporation, limited liability company, partnership, joint stock company, joint venture, trust, unincorporated organization or firm, or a government or any agency, or political subdivision thereof or other public body. "Prior Bonds" — The Series 1999 Bonds and any additional indebtedness issued and secured by the City on a parity basis therewith. "Qualified Accountant" — An independent certified public accountant or firm of independent certified public accountants not in the regular employ of the City. "Rating Agency" — Moody's Investors Service, Standard & Poor's Ratings Services or Fitch, Inc., and their respective successors and assigns. If any such corporation ceases to act as a securities rating agency, the City may appoint any nationally recognized securities rating agency as a replacement. "Rebate Fund" — The fund by that name created and established in the Indenture. "Record Date" — With respect to any interest payment date of the Bonds, the first day of the calendar month in which such interest payment date falls. "Renewal and Replacement Fund — The fund by that name confirmed and described in the Indenture. "Reserve Requirement" — At any particular time, an amount equal to 50% of the aggregate maximum Annual Debt Service in any Fiscal Year thereafter with respect to Outstanding Bonds of all series. "Revenues" — All fees, tolls, rates, rentals and charges levied and collected in connection with, and all other income and receipts of whatever kind or character derived by the City from, the operation of the System. Revenues shall specifically include, but shall not be limited to, revenues from water sales, sewer service charges, fire protection charges and interest income on Revenue Fund balances. Notwithstanding the foregoing, Revenues shall not include acreage, connection, front -footage, tap -on, assessment and similar fees, charges, contributions or grants derived by the City in connection with the provision of or payment for capital improvements constituting a part of the System. "Revenue Fund" — The fund by that name confirmed and described in the Indenture. "Series 1994 Bonds" — City of Fayetteville, Arkansas Water and Sewer System Revenue Bonds, Series 1994, issued in the original aggregate principal amount of $5,500,000, to be refunded with the proceeds of the Series 2002A Bonds. "Series 1999 Bonds" — City of Fayetteville, Arkansas Water and Sewer System Refunding Revenue Bonds, Series 1999, issued in the original aggregate principal amount of $8,365,000. 10-32374.02 24 "Series 2000 Bonds" — City of Fayetteville, Arkansas Water and Sewer System Subordinate Revenue Bonds, Series 2000, issued in the original aggregate principal amount of $10,000,000, to be refunded with the proceeds of the Series 2002B Bonds. "Series 2002 Bonds" — Collectively, the Series 2002A Bonds and the Series 2002B Bonds. "Series 2002A Bonds" — One of the initial series of Bonds being issued under and secured by the Indenture in the aggregate principal amount of $ * for the purpose of refunding the Series 1994 Bonds. "Series 2002B Bonds" — One of the initial series of Bonds being issued under and secured by this Indenture in the aggregate principal amount of $ * for the purpose of refunding the Series 2000 Bonds. "Subordinate Obligations" — Debt obligations of the City secured by a pledge of Net Revenues that is subordinate to the lien thereon securing the payment of the Bonds and the Prior Bonds, permitted by the provisions of the Indenture. "System" — The City's combined water and sewer utility system. "Trustee" — The banking corporation or association designated as Trustee in the Indenture, and its successor or successors as such Trustee. The original Trustee is Bank of Oklahoma, N.A., Tulsa, Oklahoma. "Trust Estate" — The property described in the granting clauses of the Indenture. * Preliminary; subject to change. SUMMARY OF THE INDENTURE The following statements are brief summaries of certain provisions of the Indenture. The statements do not purport to be complete, and reference is made to the Indenture, copies of which are available for examination at the offices of the Administrative Services Director of the City, for a hill statement thereof Funds and Disposition of Revenues. Net Revenues are pledged by the Indenture to the payment of the principal of and premium, if any, and interest on the Bonds, subject to various provisions permitting application for other purposes. The following funds are referenced with respect to the Bonds: Fund Held By Revenue Fund City Operation and Maintenance Fund City Bond Fund Trustee Debt Service Reserve Fund Trustee Renewal and Replacement Fund City Cost of Issuance Fund Trustee Rebate Fund Trustee Application of Revenues. The application of Revenues is as follows: (a) Revenue Fund. All Revenues shall, as and when received, be deposited into the Revenue Fund. All moneys at any time in the Revenue Fund shall be applied to the payment of Operation and Maintenance Expenses of the System, the payment of Annual Debt Service on the Bonds, the Prior Bonds and any Subordinate Obligations, the maintenance of the Debt Service Reserve and any debt service reserve for the Prior Bonds and any Subordinate Obligations, and the providing of the Renewal and Replacement Fund in the order, at the times and in the amounts set forth as follows: (b) Operation and Maintenance Fund. Prior to making the required payments into the bond funds and debt service reserve funds with respect to the Prior Bonds, and into the Bond Fund and Debt Service Reserve Fund, into the bond funds and debt service reserve funds for any Subordinate Obligations, and into the Renewal and Replacement Fund, there shall be paid from the Revenue Fund into the Operation and Maintenance Fund, not later 10-32374.02 25 than the fifth business day preceding the fifteenth day in each month while any of the Bonds shall be Outstanding, an amount sufficient to cause amounts on deposit therein to equal projected Operation and Maintenance Expenses for the next two succeeding months (as shown in the budget of proposed Operation and Maintenance Expenses for the then current Fiscal Year) and from which disbursements shall be made only for those purposes. Fixed annual charges such as insurance premiums and the cost of major repair and maintenance expenses may be computed and set up on an annual basis, and 1/12 of the amount thereof may be paid into the Operation and Maintenance Fund each month. If in any month for any reason there shall be a failure to transfer and pay the required amount into the Operation and Maintenance Fund, the amount of any deficiency shall be added to the amount otherwise required to be transferred and paid into the Operation and Maintenance Fund in the next succeeding month. (c) Bond Fund. Immediately following the making of required deposits into the Operation and Maintenance Fund and into the bond funds and debt service reserve funds with respect to the Prior Bonds, there shall be paid from the Revenue Fund into the Bond Fund, beginning on the fifth business day preceding the fifteenth day of the first month following delivery of the Series 2002 Bonds (unless delivery of the Series 2002 Bonds occurs on or prior to the fifth business day preceding the fifteenth day in a given month, in which case the date of commencement shall be the fifth business day preceding the fifteenth day of the month of delivery of the Series 2002 Bonds), and continuing not later than the fifth business day preceding the fifteenth day of each month thereafter until all Outstanding Bonds with interest thereon have been paid in full, or provision made for such payment, a sum equal to (i) 1/6 of the installment of interest coming due on the Bonds (whether at maturity, upon mandatory redemption, or otherwise) during the then next six (6) months, and (ii) 1/12 of the installment of principal coming due on the Bonds (whether at maturity, upon mandatory redemption, or otherwise) during the then next twelve (12) months (provided, however, that the first payments required under the Indenture with respect to a series of Bonds shall be prorated from the date of issuance of such series of Bonds). All moneys in the Bond Fund shall be used solely for the purpose of paying Annual Debt Service on the Bonds or for any redemption of the Bonds, except as specifically provided in the Indenture. The Trustee shall withdraw from the Bond Fund, on the date of any principal or interest payment, an amount equal to the amount of such payment for the sole purpose of paying the same. If Revenues are insufficient to make the required payment into the Bond Fund, the amount of any such deficiency in the payment made shall be added to the amount otherwise required to be paid into the Bond Fund not later than the fifth business day preceding the fifteenth day of the next succeeding month. If a surplus shall exist in the Bond Fund over and above the amount required for making all Annual Debt Service payments during the then next twelve (12) months on all Outstanding Bonds, such surplus shall be deposited into the bond funds and debt service reserve funds with respect to the Prior Bonds to the extent of any deficiency therein, then to the Debt Service Reserve Fund until it is fully funded, then into the Renewal and Replacement Fund until it is fully funded, and may thereafter be applied to the payment of Debt Service on any Bonds that may be called for redemption prior to maturity. When the moneys held in the Bond Fund and the Debt Service Reserve Fund shall be and remain sufficient to pay in full the principal of and premium, if any, and interest on all Bonds then Outstanding, there shall be no obligation to make further payments into the Bond Fund. (d) Debt Service Reserve Fund. See the caption "SECURITY FOR THE BONDS — Debt Service Reserve" herein. (e) Renewal and Replacement Fund. After making the required deposits into the Operation and Maintenance Fund, into the bond funds and debt service reserve funds with respect to the Prior Bonds, into the Bond Fund and Debt Service Reserve Fund, and into the bond funds and debt service reserve funds with respect to any Subordinate Obligations, there shall be paid from the Revenue Fund into the Renewal and Replacement Fund not later than the fifth business day preceding the fifteenth day of each month while any of the Bonds are Outstanding, an amount sufficient to cause the amount on deposit therein to equal $300,000 or such greater amount as the City may determine from time to time is appropriate, provided that the amount to be deposited in any month need not exceed 1/12 of the amount then required to be on deposit therein. The moneys in the Renewal and Replacement Fund shall be used solely for the purpose of paying the cost of necessary repairs or replacements due to the depreciation of the System. 10-32374.02 26 (f) Surplus. Any surplus in the Revenue Fund after making all disbursements and providing for all funds described above may be used, at the option of the City for any lawful purpose. Investment of Funds. At the direction of the City or absent such direction, the Trustee shall invest moneys in funds or accounts held by the Trustee in Investment Securities with maturity or redemption dates consistent with the times at which said moneys will be required for the purposes provided in this Indenture; provided, however, the stated maturity dates of Investment Securities of Debt Service Reserve Fund moneys shall not exceed five years from the date of investment therein. Moneys in separate funds or accounts may be commingled for the purpose of investment. The City may invest moneys held in the Revenue Fund, Operation and Maintenance Fund and Renewal and Replacement Fund in any investment obligations permitted by Arkansas law. Obligations purchased as an investment of moneys in any fund or account created by this Indenture shall be deemed at all times to be a part of such fund or account, and any income or loss due to an investment thereof shall be charged to the respective fund or account for which the investment was made except as otherwise provided in this Indenture. Investments in any fund or account shall be evaluated at least annually by the City or the Trustee, as may be appropriate. For the purpose of determining the amount in any fund or account, the City and the Trustee shall value all Investment Securities credited to such fund or account at the price at which such Investment Securities are redeemable by the holders or owners thereof at their option if so redeemable, or, if not so redeemable, at the lesser of (i) the cost of such Investment Securities minus the amortization of any premium or plus the amortization of any discount thereon and (ii) the market value of such Investment Securities, provided that Investment Securities credited to the Debt Service Reserve Fund, if not so redeemable, shall be valued at the cost thereof minus the amortization of any premium or plus the amortization of any discount thereon. Valuation of Funds and Accounts. In determining the value of any fund or account held by the Trustee under the Indenture, the Trustee shall credit Investment Securities at the fair market value thereof, as determined by the Trustee by any method selected by the Trustee in its reasonable discretion. No less frequently than annually, and in any event within thirty (30) days prior to the end of each Fiscal Year, the Trustee shall determine the value of each fund and account held under the Indenture and shall report such determination to the City. The Trustee shall sell or present for redemption any Investment Securities as necessary in order to provide money for the purpose of making any payment required under the Indenture, and the Trustee shall not be liable for any loss resulting from any such sale. Responsibility of Trustee. The Trustee shall not be responsible or liable for any loss suffered in connection with any investment of moneys made by it at the direction of the City. Operation and Maintenance of System; Disposition of System Assets. The City covenants that it will continuously operate the System in a diligent fashion in accordance with prudent utility practice and as a revenue -producing undertaking in compliance with all applicable laws and regulations and all the covenants and obligations under the Indenture. The City further covenants that it will maintain the System in sound condition and repair, that it will not sell or otherwise dispose of any property necessary to the proper operation of the System or to the maintenance of Revenues, and that it will not enter into any lease or agreement which will impair or impede the operation of the System or adversely affect the rights of the bondholders. Insurance. The City covenants and agrees to insure and at all times keep insured, in the amount of the actual value thereof, by a responsible insurance company or companies authorized and qualified under the laws of the State of Arkansas to assume the risk thereof, all properties of the System, other than water storage tanks, mains and lines for the transmission, distribution or collection of water or wastewater, against loss or damage from fire, lightning, tornado, winds, strike, malicious damage or explosion and against loss or damage from any other causes customarily insured against by private companies engaged in a similar type of business. In the event of loss, the proceeds of such insurance shall be applied solely toward the reconstruction, replacement or repair of the System, and in such event the City shall, with reasonable promptness, cause to be commenced and completed the reconstruction, replacement and repair work. If such proceeds are more than sufficient for such purposes, the balance remaining shall be deposited to the credit of the Bond Fund and the bond funds for the Prior Bonds, pro rata, in relation to the then outstanding principal amounts of the Bonds and the Prior Bonds, and, if such proceeds shall be 10-32374.02 27 • insufficient for such purposes, the deficiency shall be supplied, first, from moneys in the Renewal and Replacement Fund and, second, from any available moneys in the Revenue Fund pursuant to Section 506 hereof. Damage or Destruction; Condemnation. The City covenants and agrees that in the event of damage to or destruction of the System, or if all or any part of the System shall be taken under the exercise of eminent domain, it will immediately notify the Trustee. All insurance money paid or net amounts awarded shall be paid to the City, and the City shall proceed to restore, repair, replace or rebuild System facilities as nearly as possible to the condition they were in immediately prior to such damage or condemnation, to the extent that the same may be feasible, subject to such alterations as the City may elect to make. If the insurance money or net amounts awarded shall be insufficient to pay all costs of the restoration, the City shall pay the deficiency and shall nevertheless proceed to complete the restoration and pay the cost thereof. Any balance of the insurance or condemnation proceeds remaining over and above the cost of the restoration shall be deposited into the Revenue Fund. The City's obligations to make all payments set forth in the Indenture and to perform all other covenants and agreements on its part to be performed shall not be affected by any such damage or destruction or condemnation. Notwithstanding the foregoing provisions, the City shall not be required to repair, restore, replace or rebuild System facilities, or any part thereof, if the City shall elect to redeem prior to maturity on the next possible redemption date all of the Bonds and Prior Bonds then Outstanding, together with accrued interest to the redemption date, and to pay all charges, fees and expenses necessarily incurred and required to be incurred in connection with such redemption, and all other amounts then owing by the City. In that event, the proceeds of all insurance or condemnation awards shall be placed in and become part of the Bond Fund. If there be any deficiency in the moneys on deposit in the Bond Fund after the deposit of all such proceeds, the City shall immediately deposit therein the amount of the deficiency. Accounting; Reports. The City covenants that it will keep the funds and accounts of the System separate from all other funds and accounts of the City, and that it will keep accurate records of all items of cost and of all expenditures relating to the System, and of the collection and application of Revenues, in accordance with generally accepted accounting principles. Such records and accounts shall be open to inspection by the Trustee under reasonable circumstances. The City further covenants that at the end of each Fiscal Year it will cause an audit to be made of the books and accounts for that Fiscal Year pertaining to the System by a Qualified Accountant. Copies of each such audit shall be filed with the Trustee and furnished to the holders of outstanding Bonds making written request therefor. Annual Budget. The City shall prepare an annual budget for System operations for each Fiscal Year. A copy of each budget shall be filed with the Trustee and a copy shall be maintained in the office of the Administrative Services Director of the City. Defeasance. Any Bond shall be deemed to be paid within the meaning of the Indenture when payment of the principal of and premium, if any, and interest on such Bond (whether at maturity or upon redemption as provided in the Indenture, or otherwise), either (i) shall have been made or caused to be made in accordance with the terms thereof, or (ii) shall have been provided for by irrevocably depositing with the Trustee, in trust and irrevocably set aside exclusively for such payment, (1) moneys sufficient to make such payment or (2) Government Securities (provided that such deposit will not affect the tax-exempt status of the interest on any of the Bonds or cause any of the Bonds to be classified as "arbitrage bonds" within the meaning of Section 148(a) of the Code, as reflected in an opinion of Bond Counsel delivered to the Trustee), maturing as to principal and interest in such amounts and at such times as will provide sufficient moneys to make such payment, and all necessary and proper fees, compensation and expenses of the Trustee and any Paying Agent pertaining to the Bonds with respect to which such deposit is made shall have been paid or the payment thereof provided for to the satisfaction of the Trustee and any said Paying Agent. Events of Default. Each of the following events shall constitute and is referred to in the Indenture as an "Event of Default": (a) Default in the due and punctual payment of any interest on any Bond or Prior Bond; 10-32374,02 28 (b) Default in the due and punctual payment of the principal of or premium, if any, on any Bond or Prior Bond, whether at the stated maturity thereof, or upon proceedings for redemption thereof, or upon the maturity thereof by declaration; (c) Default in the payment of any other amount required to be paid under the Indenture or the performance or observance of any other of the covenants, agreements or conditions contained in the Indenture, or in the Bonds issued under the Indenture, and continuance thereof for a period of sixty (60) days after written notice specifying such failure and requesting that it be remedied, shall have been given to the City by the Trustee, which may give such notice in its discretion and shall give such notice at the written request of holders of not less than fifty-one percent (51%) in aggregate principal amount of the Bonds then Outstanding, unless the Trustee, or the Trustee and holders of an aggregate principal amount of Bonds not less than the aggregate principal amount of Bonds the holders of which requested such notice, as the case may be, shall agree in writing to an extension of such period prior to its expiration; provided, however, if the failure stated in the notice cannot be corrected within the applicable period, the Trustee will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by the City within such period and is being diligently pursued; and (d) The filing of a petition in bankruptcy by or against the City under the United States Bankruptcy Code or the commencement of a proceeding by or against the City under any other law concerning insolvency, reorganization or bankruptcy. The term "default" as used in clauses (a), (b) and (c) above shall mean default by the City in the performance or observance of any of the covenants, agreements or conditions on its part contained in the Indenture, or in the Bonds Outstanding thereunder, exclusive of any period of grace required to constitute a default an "Event of Default" as described above. Acceleration. Upon the occurrence of an Event of Default, the Trustee may, and upon the written request of the holders of not less than 51% in aggregate principal amount of Bonds Outstanding shall, by notice in writing delivered to the City, declare the principal of all Bonds then Outstanding, together with any premium and the interest accrued thereon, immediately due and payable, and such principal and interest shall thereupon become and be immediately due and payable. Other Remedies; Rights of Bondholders. Upon the occurrence of an Event of Default, the Trustee may, as an alternative, pursue any available remedy by suit at law or in equity, including, without limitation, mandamus to enforce the payment of the principal of and premium, if any, and interest on the Bonds then Outstanding. If an Event of Default shall have occurred, and if it shall have been requested so to do by the holders of 51% in aggregate principal amount of Bonds Outstanding and if it shall have been indemnified as provided in the Indenture, the Trustee shall be obligated to exercise such one or more of the rights and powers conferred upon it by the Indenture as the Trustee, being advised by counsel, shall deem most expedient in the interests of the bondholders. No remedy by the terms of the 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 under the Indenture 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 under the Indenture, whether by the Trustee or by the bondholders, shall extend to or shall affect any subsequent default or Event of Default or shall impair any rights or remedies consequent thereon. Rights and Remedies of Bondholders. No holder of any Bond shall have any right to institute any suit, action or proceeding in equity or at law for the enforcement of the Indenture or for the execution of any trust thereof or for the appointment of a receiver or any other remedy thereunder, unless a default has occurred of which the Trustee has been notified as provided in the Indenture, or of which by the Indenture it is deemed to have notice, nor unless such default shall have become an Event of Default and the holders of not less than 51% in aggregate principal amount of Bonds Outstanding shall have made written request to the Trustee and shall have offered it 10-32374.02 29 reasonable opportunity either to proceed to exercise the powers 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 the Indenture nor unless the Trustee shall thereafter fail or refuse to exercise the powers granted, or to institute such action, suit, or proceeding in its own name; and such notification, request and offer of indemnity are declared in every such case at the option of the Trustee to be conditions precedent to the execution of the powers and trusts of the Indenture, and to any action or cause of action for the enforcement of the Indenture or for the appointment of a receiver or for any other remedy thereunder; it being understood and intended that no one or more holders of the Bonds shall have any right in any manner whatsoever to affect, disturb or prejudice the lien of the Indenture by action of the holder or holders or to enforce any right under the Indenture except in the manner therein provided, and that all proceedings at law or in equity shall be instituted, held and maintained in the manner therein provided for the equal benefit of the holders of all Bonds Outstanding thereunder. Nothing in the Indenture contained shall, however, affect or impair the right of any bondholders to enforce the payment of the principal of and premium, if any, and interest on any Bonds at and after the maturity thereof, or the obligation of the City to pay the principal of and premium, if any, and interest on each of the Bonds issued under the Indenture to the respective holders thereof at the time and place in said Bonds expressed. Supplemental Indentures Not Requiring Consent of Bondholders. The City and the Trustee may, from time to time and at any time, without the consent of or notice to the bondholders, enter into supplemental indentures as follows: (a) to cure any formal defect, omission, inconsistency or ambiguity in the Indenture; (b) to grant to or confer or impose upon the Trustee for the benefit of the bondholders any additional rights, remedies, powers, authority, security, liabilities or duties which may lawfully be granted, conferred or imposed and which are not contrary to or inconsistent with the Indenture as theretofore in effect, provided that no such additional liabilities or duties shall be imposed upon the Trustee without its consent; (c) to add to the covenants and agreements of, and limitations and restrictions upon, the City in the Indenture other covenants, agreements, limitations and restrictions to be observed by the City which are not contrary to or inconsistent with the Indenture as theretofore in effect; (d) to confirm, as further assurance, any pledge under, and the subjection to any claim, lien or pledge created or to be created by, the Indenture, of the Trust Estate or of any other moneys, securities or funds; (e) to comply with the requirements of the Trust Indenture Act of 1939, as from time to time amended; (I) to authorize the issuance and sale of one or more series of Additional Bonds; (g) to make such additions, deletions or modifications as may be necessary to assure compliance with Section 148(f) of the Code relating to required rebate to the United States or otherwise as may be necessary to assure exemption from federal income taxation of interest on the Bonds; or (h) to modify, alter, amend or supplement the Indenture in any other respect which is not materially adverse to the bondholders and which does not involve a change described in clause (a), (b), (c), (d), (e) or (f) below and which, in the judgment of the Trustee, is not to the prejudice of the Trustee. Supplemental Indentures Requiring Consent of Bondholders. Subject to the terms and provisions contained in this paragraph, and not otherwise, the holders of not less than 2/3 in aggregate principal amount of the Bonds then Outstanding shall have the right, from time to time, anything contained in the Indenture to the contrary notwithstanding, to consent to and approve the execution by the City and the Trustee of such indenture or indentures supplemental to the Indenture 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 the Indenture or in any supplemental indenture; provided, however, that nothing contained in the Indenture shall permit or be construed as permitting (a) an extension of the maturity (or mandatory redemption date) of the principal of or the interest on any Bond issued thereunder, or (b) a reduction in the principal amount of or redemption premium or rate of interest on any Bond issued thereunder, or (c) the creation of any lien on the Trust Estate or any part thereof, except as expressly permitted in the 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 indenture, or (f) deprive the holder of any Bond then Outstanding of the lien created on the Trust Estate. 10-32374.02 30 If, at any time the City shall request the Trustee to enter into any supplemental indenture for any of the purposes described above, the Trustee shall, at the expense of the City, cause notice of the proposed execution of such supplemental indenture to be mailed by first class mail to each registered owner of the Bonds. 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 bondholders. The Trustee shall not, however, be subject to any liability to any bondholder by reason of its failure to mail such notice, and any such failure shall not affect the validity of such supplemental indenture when consented to and approved as provided above. If the holders of not less than 2/3 in aggregate principal amount of the Bonds Outstanding at the time of the execution of any such supplemental indenture shall have consented to and approved the execution thereof, 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. SUMMARY OF THE CONTINUING DISCLOSURE AGREEMENT [TO BE REVISED] The City has entered into an undertaking in the form of the Continuing Disclosure Agreement as required by the Indenture for the benefit of the Beneficial Owners of the Series 2002 Bonds to cause certain financial information to be sent to certain information repositories annually and to cause notice to be sent to such information repositories of certain specified events, pursuant to the requirements of Section (b)(5)(i) of Rule 15c2-12 of the Securities Exchange Act of 1934, as amended (the "Rule"). The City has not failed to comply with any previous undertaking pursuant to the Rule. The Continuing Disclosure Agreement contains the following covenants and provisions: (a) The City shall, not later than August I of each year, commencing August 1, 2002, provide to each Repository and the Trustee its Annual Financial Information consistent with the requirements of subsection (d) below. (b) If, on the date specified in subsection (a) above for providing the Annual Financial Information to Repositories, the Trustee has not received a copy of the Annual Financial Information, the Trustee shall contact the Disclosure Representative to determine if the City is in compliance with subsection (a). (c) If the Trustee is unable to verify that the Annual Financial Information has been provided to the Repositories by the date required within subsection (a), the Trustee shall file a notice to such effect with the Repositories and the MSRB. (d) The City's Annual Financial Information shall contain or incorporate by reference the following: (i) The following general categories of financial data and operating data with respect to the City's water and sewer system (the "System") for the prior fiscal year: [TO BE PROVIDED] (ii) The City's audited financial statements for the prior fiscal year, prepared in accordance with generally accepted accounting principles ("GAAP") as such principles are modified by the governmental accounting standards promulgated by the Government Accounting Standards Board ("GASB") and by mandated principles of the State of Arkansas, if any, as in effect from time to time, which financial statements have been audited by such auditor as shall then be required or permitted by the laws of the State of Arkansas. If the City's audited financial statements are not available by the time its Annual Financial Information is required to be filed pursuant to subsection (a) above, the Annual Financial Information shall contain the unaudited financial statements of the City in a format similar to its audited financial statements contained in the Official Statement for the Series 2002 Bonds, and the audited financial statements shall be filed in the same manner as the Annual Financial Information when they become available. 10-32374.02 31 (e) The City has agreed to instruct the Trustee to deliver to each National Repository, or the MSRB and the Arkansas State Repository, notice of the occurrence of any of the following Specified Events, if deemed material: (i) Principal and interest payment delinquencies; (ii) Non-payment related defaults; (iii) Unscheduled draws on any debt service reserve reflecting financial difficulties; (iv) Unscheduled draws on any credit enhancement reflecting financial difficulties; (v) Substitution of any credit or liquidity providers, or their failure to perform; (vi) Adverse tax opinions or events affecting the tax-exempt status of the Series 2002 Bonds; (vii) Modifications to rights of Bondowners; (viii) Bond calls; (ix) Defeasances; (x) Release, substitution or sale of property securing payment of the Series 2002 Bonds; or (xi) Rating changes. (f) The City has agreed that the foregoing undertakings shall be for the benefit of the Beneficial Owners of the Series 2002 Bonds, and shall be enforceable by any Beneficial Owner of the Series 2002 Bonds in an action for specific performance against the City. (g) The continuing obligation of the City to provide Annual Financial Information and notice of the occurrence of Specified Events, if material, will terminate if the City is no longer an "obligated party" within the meaning of the Rule or upon the maturity, defeasance, prior redemption or payment in full of the Series 2002 Bonds. The City and the Trustee may amend the Continuing Disclosure Agreement, and any provision of the Continuing Disclosure Agreement may be waived, if such amendment or waiver is supported by an opinion of counsel, reasonably acceptable to each of the City and the Trustee, to the effect that such amendment or waiver would not, in and of itself, cause the undertakings under the Continuing Disclosure Agreement to violate the Rule, taking into account any subsequent change in or official interpretation of the Rule. (h) The following terms used under this caption shall have the meanings set forth below: "Annual Financial Information" means the annual financial information to be provided by the City of the type described in the Continuing Disclosure Agreement. "Arkansas State Repository" means any public or private repository or entity as may be designated by the State of Arkansas as a state repository for purposes of the Rule and recognized as such by the SEC. As of the date of the Continuing Disclosure Agreement, there is no Arkansas State Repository. "Beneficial Owner" means any person which has the power, directly or indirectly, to vote or consent with respect to, or to dispose of ownership of, any Series 2002 Bonds, including persons holding Series 2002 Bonds through nominees or depositories. "Disclosure Representative" means the City's Administrative Services Director or his or her designee, or such other officer or employee as the City shall designate in writing to the Trustee from time to time. "MSRB" means the Municipal Securities Rulemaking Board. "National Repository" means any nationally recognized municipal securities information repository for purposes of the Rule. "Participating Underwriter" means Stephens Inc. 10-32374.02 32 "Repository" means each National Repository and the Arkansas State Repository. "Specified Events" means each of the events with respect to the Series 2002 Bonds listed in subsection (e) above. (i) A failure by the City to comply with the provisions of the Continuing Disclosure Agreement will not constitute an Event of Default under the Indenture, and the sole remedy in such an event shall be an action to compel specific performance. Nevertheless, such a failure to comply must be reported in accordance with the Rule and must be considered by any broker, dealer or municipal securities dealer before recommending the purchase or sale of the Series 2002 Bonds in the secondary market. Consequently, such a failure may adversely affect the transferability and liquidity of the Series 2002 Bonds. UNDERWRITING Under a bond purchase agreement entered into by and among the City and Stephens Inc. (the "Underwriter"), the Series 2002 Bonds are being purchased at a purchase price of $ (representing the stated principal amount of the Series 2002 Bonds less an underwriting discount of $) ) plus accrued interest from May 15, 2002 to the date of delivery of the Series 2002 Bonds. The bond purchase agreement provides that the Underwriter will purchase all of the Series 2002 Bonds if any are purchased. The obligation of the Underwriter to accept delivery of the Series 2002 Bonds is subject to various conditions contained in the bond purchase agreement, including the absence of pending or threatened litigation questioning the validity of the Series 2002 Bonds or any proceedings in connection with the issuance thereof, and the absence of material adverse changes in the financial condition of the System. The Underwriter intends to offer the Series 2002 Bonds to the public initially at the offering prices as set forth on the cover page of this Official Statement, which offering prices (or bond yields establishing such offering prices) may subsequently change without any requirement of prior notice. The Underwriter reserves the right to join with dealers and other underwriters in offering the Series 2002 Bonds to the public, and may offer the Series 2002 Bonds to such dealers and other underwriters at a price below the public offering price. The City has agreed to indemnify the Underwriter against certain civil liabilities in connection with the offering and sale of the Series 2002 Bonds, including certain liabilities under federal securities laws. TAX EXEMPTION Federal Income Taxes. In the opinion of Kutak Rock LLP, Bond Counsel, under existing law, the interest on the Series 2002 Bonds is excludable from the gross income of the owners thereof for federal income tax purposes and is not an item of tax preference for purposes of the federal alternative minimum tax imposed on individuals and corporations; it should be noted, however, that for purposes of computing the alternative minimum tax imposed on corporations (as defined for federal income tax purposes), such interest is taken into account in determining adjusted current earnings and profits. The opinions set forth in the preceding sentence are subject to the condition that the City comply with all requirements of the Code that must be satisfied subsequent to the issuance of the Series 2002 Bonds in order that the interest thereon be, or continue to be, excludable from gross income for federal income tax purposes. The City has covenanted to comply with each such requirement. Failure to comply with certain of such requirements may cause the inclusion of interest on the Series 2002 Bonds in gross income for federal income tax purposes to be retroactive to the date of issuance of the Series 2002 Bonds. Bond Counsel expresses no opinion regarding other federal tax consequences arising with respect to the Series 2002 Bonds. Prospective purchasers of the Series 2002 Bonds should be aware that ownership of tax-exempt obligations may result in collateral federal income tax consequences to certain taxpayers, including, without limitation, financial institutions, property and casualty insurance companies, certain foreign corporations doing business in the United States, certain Subchapter S corporations with excess passive income, individual recipients of Social Security or Railroad Retirement benefits and taxpayers who may be deemed to have incurred or continued indebtedness to purchase or carry tax-exempt obligations. Prospective purchasers of the Series 2002 Bonds should consult their tax advisors as to applicability of any such collateral consequences. State Taxes. Bond Counsel is of the opinion that, under existing law, the interest on the Series 2002 Bonds is exempt from all state, county and municipal taxes in the State of Arkansas. 10-32374.02 33 RATINGS [TO BE PROVIDED] LEGAL MATTERS Legal Opinions. Legal matters incident to the authorization and issuance of the Series 2002 Bonds are subject to the unqualified approving opinion of Kutak Rock LLP, Little Rock, Arkansas, Bond Counsel, a copy of whose approving opinion will be delivered with the Series 2002 Bonds. Certain legal matters will be passed upon for the City by its counsel, Kit Williams, Esq., City Attorney. Litigation. There is no litigation pending seeking to restrain or enjoin the issuance or delivery of the Series 2002 Bonds or questioning or affecting the legality of the Series 2002 Bonds or the proceedings and authority under which the Series 2002 Bonds are to be issued, or questioning the right of the City to issue the Series 2002 Bonds. Except as set forth in the following paragraph, there is no action, suit or proceeding known to be pending or threatened, restraining or enjoining the City in any way which could have a material adverse effect on the City or the System's financial affairs. [DESCRIBE CIVIL RIGHTS SUIT] FINANCIAL STATEMENTS The general purpose financial statements of the City at December 31, 2000 and for the year then ended, included herein as Appendix A, have been audited by Arthur Andersen, LLP, independent certified public accountants, as set forth in their report dated April 13, 2001, which report is also included in Appendix A. The notes set forth in Appendix A are an integral part of the financial statements, and the statements and notes should be read in their entirety. Set forth in Appendix B to this Official Statement are the unaudited financial statements of the City's Water as Sewer Fund for the year ended December 31, 2001. Additional financial information concerning the City may be obtained from the City's Administrative Services Director, City of Fayetteville, City Hall, 113 West Mountain, Fayetteville, Arkansas 72701. MISCELLANEOUS Any statements made in this Official Statement involving matters of opinion or of estimates, whether or not so expressly stated, are set forth as such and not as representations of fact, and no representation is made that any of the estimates will be realized. This Official Statement is not to be construed as a contract or agreement between the City and the purchasers or owners of any of the Series 2002 Bonds. 10-32374.02 34 ACCURACY AND COMPLETENESS OF OFFICIAL STATEMENT The information contained in this Official Statement has been taken from sources considered to be reliable, but is not guaranteed. To the best of the knowledge of the City, this Official Statement does not include any untrue statement of a material fact, nor does it omit the statement of any material fact required to be stated herein, or necessary to make the statements herein, in light of the circumstances under which they were made, not misleading. The execution and delivery of this Official Statement has been duly authorized by the City of Fayetteville, Arkansas. CITY OF FAYETTEVILLE, ARKANSAS By: Mayor 10-32374.02 35 I APPENDIX A AUDITED GENERAL PURPOSE FINANCIAL STATEMENTS AND SUPPLEMENTAL FINANCIAL STATEMENTS OF THE CITY FOR THE YEAR ENDED DECEMBER 31, 2000 10-32374.02 A -I UNAUDITED FINANCIAL STATEMENTS OF THE CITY'S WATER AND SEWER FUND FOR THE YEAR ENDED DECEMBER 31, 2001 10-32374.02 B -I APPENDIX C Proposed Form of Bond Counsel Opinion Kutak Rock LLP, Bond Counsel, will render an opinion with respect to the Series 2002 Bonds, dated the date of issuance and delivery thereof, in substantially the following form: May _, 2002 City of Fayetteville, Arkansas Fayetteville, Arkansas Bank of Oklahoma, N.A., as Trustee _ Tulsa, Oklahoma Stephens Inc. Little Rock, Arkansas City of Fayetteville, Arkansas Water and Sewer System Refunding Revenue Bonds Series 2002A and Series 2002B Ladies and Gentlemen: We have acted as bond counsel in connection with the issuance and sale by the City of Fayetteville, Arkansas (the "City"), a political subdivision of the State of Arkansas, of its $ * Water and Sewer System Refunding Revenue Bonds, Series 2002A and Series 2002B (the "Bonds"). The Bonds are being issued pursuant to the provisions of the Constitution and laws of the State of Arkansas, including, particularly, Amendment 65 and Arkansas Code Annotated (1998 Repl. & Supp. 2001) §§14- 164-401 et seq., §§ 14-234-201 et seq. and §14-235-20l et seq.(collectively, and as from time to time amended, the "Authorizing Legislation"), pursuant to Ordinance No. of the City, duly adopted and approved on 2002 (the "Bond Ordinance"), and pursuant to a Trust Indenture dated as of May 1, 2002 (the "Indenture"), by and between the City and Bank of Oklahoma, N.A., as trustee (the "Trustee"). Reference is hereby made to the Indenture and to all indentures supplemental thereto for the provisions, among others, with respect to the conditions for the issuance of parity debt by the City, the nature and extent of the security for the Bonds, the rights, duties and obligations of the City, the Trustee and the holders of the Bonds, and the terms upon which the Bonds are issued and secured. Reference is made to an opinion of even date herewith of Kit Williams, Esq., City Attorney, a copy of which is on file with the Trustee, with respect, among other matters, to the status and valid existence of the City, the power of the City to adopt the Bond Ordinance and enter into and perform its obligations under the Indenture, the valid adoption of the Bond Ordinance and the due authorization, execution and delivery of the Indenture by the City, and with respect to the Indenture being enforceable upon the City. We have examined the law and such certified proceedings and other papers as we have deemed necessary to render this opinion. As to questions of fact material to our opinion, we have relied upon the representations of the City contained in the Bond Ordinance and the Indenture and in the certified proceedings and other certifications of public officials furnished to us, without undertaking to verify the same by independent investigation. Preliminary, subject to change. 10-32374.02 C-1 Based upon the foregoing, we are of the opinion, under existing law, as follows: I. The City is duly created and validly existing as a municipal corporation of the State of Arkansas. Pursuant to the Constitution and laws of the State of Arkansas, including, particularly, Amendment 65 and the Authorizing Legislation, the City is empowered to adopt the Bond Ordinance, to execute and deliver the Indenture, to perform the agreements on its part contained therein, and to issue the Bonds. 2. The Bond Ordinance has been duly adopted by the City and constitutes a valid and binding obligation of the City enforceable upon the City in accordance with its terms. 3. The Indenture has been duly authorized, executed and delivered by the City and is a valid and binding obligation of the City enforceable upon the City in accordance with its terms. 4. The Bonds have been validly authorized, executed, issued and delivered by the City and represent valid and binding special obligations of the City. The principal, premium, if any, and interest on the Bonds shall be payable from, and shall be secured by an assignment and pledge by the City to the Trustee of, the Net Revenues (as defined in the Indenture) of the City's water and sewer system, subject to the prior pledge of Net Revenues securing the City's Water and Sewer System Refunding Revenue Bonds, Series 1999, and any additional Prior Bonds (as defined in the Indenture) issued hereafter. 5. The Net Revenues have been duly and validly assigned and pledged to the Trustee under the Indenture, and the Indenture creates, as security for the Bonds, a valid security interest in the Net Revenues. 6. The interest on the Bonds is excluded from gross income for federal income tax purposes and is not an item of tax preference for purposes of the federal alternative minimum tax imposed on individuals and corporations; it should be noted, however, that, for the purpose of computing the alternative minimum tax imposed on corporations (as defined for federal income tax purposes), such interest is taken into account in determining adjusted current earnings for purposes of such alternative minimum tax. The opinions set forth in the preceding sentence are subject to the condition that the City comply with all requirements of the Internal Revenue Code of 1986, as amended, that must be satisfied prior to or subsequent to the issuance of the Bonds in order that the interest thereon be, or continue to be, excluded from gross income for federal income tax purposes. The City has covenanted to comply with each such requirement. Failure to comply with certain of such requirements may cause the inclusion of interest on the Bonds in gross income for federal income tax purposes to be retroactive to the date of issuance of the Bonds. We express no opinion regarding other federal tax consequences arising with respect to the Bonds. The interest on the Bonds is exempt from all state, county and municipal taxes in the State of Arkansas. 8. The Bonds are exempt from registration pursuant to the Securities Act of 1933, as amended, and the Indenture is not required to be qualified under the Trust Indenture Act of 1939, as amended, in connection with the offer and sale of the Bonds. It is to be understood that the rights of the registered owners of the Bonds and the enforceability of the Bonds, the Bond Ordinance and the Indenture may be subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights heretofore or hereafter enacted to the extent constitutionally applicable and that their enforcement may also be subject to the exercise ofjudicial discretion in appropriate cases. Very truly yours, 10-32374.02 C-2 • KUTAK ROCK LLP DRAFT 3/14/02 CONTINUING DISCLOSURE AGREEMENT This Continuing Disclosure Agreement dated as of May _, 2002 (this "Agreement"), is executed and delivered by the City of Fayetteville, Arkansas (the "City") and Bank of Oklahoma, N.A., as trustee (the "Trustee"), in connection with the issuance of the City's $ Water and Sewer System Refunding Revenue Bonds, Series 2002A and Series 2002B (the "Bonds"). The Bonds are being issued pursuant to the terms and provisions of Ordinance No. duly adopted by the City Council of the City on March _, 2002 (the "Authorizing Ordinance"), and a Trust Indenture dated as of May 1, 2002, by and between the City and the Trustee. In connection with the issuance of the Bonds, the City and the Trustee agree as follows: • Section 1. Purpose of this Agreement. This Agreement is being executed and delivered by the City and the Trustee for the benefit of the Beneficial Owners of the Bonds and in order to assist the Participating Underwriter in complying with, and constitutes the written undertaking for the benefit of the Beneficial Owners of the Bonds required by, Section (b)(5)(i) of Securities and Exchange Commission Rule 15c2-12 under the Securities Act of 1934, as amended (17 C.F.R. Section 240.15c2-12) (the "Rule"). Section 2. Definitions. In addition to the definitions set forth in the Authorizing Ordinance, which apply to any capitalized term used in this Agreement unless otherwise defined in this Section, the following capitalized terms shall have the following meanings: "Annual Financial Information" shall mean the annual financial information provided by the City pursuant to, and as described in, Sections 3 and 4 of this Agreement. "Arkansas State Repository" shall mean any public or private repository or entity as may be designated by the State of Arkansas as a state repository for the purpose of the Rule and recognized as such by the SEC. As of the date of this Agreement, there is no Arkansas State Repository. "Beneficial Owner" shall mean any person which has the power, directly or indirectly, to vote or consent with respect to, or to dispose of ownership of, any Bonds, including persons holding Bonds through nominees or depositories. "Disclosure Representative" shall mean the City's Administrative Services Director or his or her designee, or such other officer or employee as the City shall designate in writing to the Trustee from time to time. "MSRB" shall mean the Municipal Securities Rulemaking Board established in accordance with the provisions of Section 15B(b)(1) of the 1934 Act. "National Repository" shall mean any Nationally Recognized Municipal Securities Information Repository for purposes of the Rule. The National Repositories currently approved by the Securities and Exchange Commission are set forth in Exhibit B hereto. "Participating Underwriter" shall mean Stephens Inc. 10-32370.01 "Repository" shall mean each National Repository and the Arkansas State Repository, if any. "Rule" shall mean Rule 15c2-I2(b)(5) adopted by the Securities and Exchange Commission ("SEC") under the Securities Exchange Act of 1934, as the same may be amended from time to time ("1934 Act"). "Specified Events" shall mean any of the events with respect to the Bonds listed in Section 5(a) of this Agreement. Section 3. Provision of Annual Financial Information. (a) The City shall, not later than August 1 of each year, commencing August 1, 2002, provide to each Repository and to the Trustee its Annual Financial Information which is consistent with the requirements of Section 4 of this Agreement. The City's Annual Financial Information may be submitted as a single document or as separate documents comprising a package, and may cross-reference other information as provided in Section 4(b) hereof; provided that the audited financial statements of the City may be submitted separately from the balance of its Annual Financial Information and later than the date required above for the filing of the Annual Financial Information if they are not available by that date. If the City's fiscal year changes, it shall give notice of such change in the same manner as for a material Specified Event under Section 5 of this Agreement. (b) If, on the date specified in subsection (a) for providing the Annual Financial Information to Repositories, the Trustee has not received a copy of the Annual Financial Information, the Trustee shall contact the Disclosure Representative to determine if the City is in compliance with subsection (a). (c) If the Trustee is unable to verify that the Annual Financial Information has been provided to the Repositories by the date required in subsection (a), the Trustee shall file a notice with the Repositories and the MSRB in substantially the form set forth in Exhibit A and as required by the Rule. (d) The City shall: (i) determine each year prior to the date for providing the Annual Financial Information the name and address of each Repository; and (ii) file a report with the Trustee certifying that the Annual Financial Information has been provided pursuant to this Agreement, stating the date it was provided, and listing all of the Repositories to which it was provided. Section 4. Content of Annual Financial Information. (a) The City's Annual Financial Information shall contain or incorporate by reference the following: 10-32370.01 2 (i) The following general categories of financial information and operating data with respect to the City's water and sewer system (the "System") for the prior fiscal year: (A) Changes in wholesale water rates charged by the Beaver Water District; (B) Changes in the City's water and sewer rate structure; (C) Annual System operating revenues, bad debt expense and bad debt expense percentage; (D) Costs for projected System capital improvements for the current fiscal year; (E) Usage revenues and percentages of all water revenues provided by the System's ten largest customers; (F) Average daily water use and maximum day's water use; and (G) Average daily sewage flow. (ii) The City's audited financial statements for the prior fiscal year, prepared in accordance with generally accepted accounting principles ("GAAP") as such principles are modified by the governmental accounting standards promulgated by the Government Accounting Standards Board ("GASB") and by mandated principles of the State of Arkansas, if any, as in effect from time to time, which financial statements have been audited by such auditor as shall then be required or permitted by the laws of the State of Arkansas. If the City's audited financial statements are not available by the time its Annual Financial Information is required to be filed pursuant to Section 3(a) hereof, the Annual Financial Information shall contain the unaudited financial statements of the City in a format similar to its audited financial statements contained in the Official Statement for the Bonds, and the audited financial statements shall be filed in the same manner as the Annual Financial Information when they become available. (b) Any or all of the items listed above may be incorporated by reference from other documents, including official statements of debt issues of the City or related public entities, which have been submitted to each of the Repositories or the Securities and Exchange Commission. If the document has been incorporated by reference in a final official statement, it must be available from the Municipal Securities Rulemaking Board. The City must clearly identify each such other document incorporated by reference. Section 5. Reporting of Specified Events. (a) This Section 5 shall govern the giving of notices of the occurrence of any of the following events with respect to the Bonds, if material: 10-32370.01 3 (1) Principal and interest payment delinquencies; (2) Non-payment related defaults; (3) Unscheduled draws on debt service reserves reflecting financial difficulties; (4) Unscheduled draws on credit enhancements reflecting financial difficulties; (5) Substitution of any credit or liquidity providers, or their failure to perform; (6) Adverse tax opinions or events affecting the tax-exempt status of the Bonds; (7) Modifications to rights of Bondowners; (8) Bond calls; (9) Defeasances; (10) Release, substitution, or sale of property securing repayment of the Bonds; and (11) Rating changes. (b) The Trustee, upon obtaining actual knowledge of the occurrence of any of the Specified Events, shall promptly inform the Disclosure Representative of any Specified Event that has occurred, and shall request that the City promptly notify the Trustee in writing whether to report the event pursuant to subsection (e). (c) If the City determines that the occurrence of a Specified Event is material to a Beneficial Owner of the Bonds, the Disclosure Representative shall promptly notify the Trustee in writing. Such notice shall instruct the Trustee to report the occurrence pursuant to subsection (e) below. (d) If the City determines that the occurrence of a Specified Event is not material, the Disclosure Representative shall so notify the Trustee in writing and instruct the Trustee not to report the occurrence pursuant to subsection (e) below. (e) If the Trustee has been instructed by the Disclosure Representative to report the occurrence of a Specified Event, the Trustee shall file a notice of such occurrence with each National Repository, or with the MSRB and the Arkansas State Repository. The Trustee shall not be obligated to report the occurrence of a Specified Event if there is no instruction to do so from the Disclosure Representative. Notwithstanding the foregoing: 10-32370.01 El (i) notice of the occurrence of a Specified Event described in subsections (a)(1), (4) or (5) shall be given by the Trustee unless the Disclosure Representative gives the Trustee affirmative instructions not to disclose such occurrence; and (ii) notice of the Specified Events described in subsections (a)(8) and (9) need not be given under this subsection any earlier than the notice (if any) of the underlying event is given to Beneficial Owners of affected Bonds pursuant to the Indenture. Section 6. Termination of Reporting Obligation. The City's obligations under this Agreement shall terminate if the City is no longer an "obligated person" within the meaning of the Rule. The City's obligations under this Agreement shall terminate upon the maturity, defeasance, prior redemption or payment in full of all of the Bonds. Section 7. Amendment; Waiver. Notwithstanding any other provision of this Agreement, the City and the Trustee may amend this Agreement (and the Trustee shall consent in its discretion, such consent not to be unreasonably withheld, to any amendment so requested by the City), and any provision of this Agreement may be waived, if such amendment or waiver is supported by an opinion of counsel, reasonably acceptable to each of the City and the Trustee, to the effect that such amendment or waiver would not, in and of itself, cause the undertakings herein to violate the Rule taking into account any subsequent change in or official interpretation of the Rule. Section 8. Additional Information. Nothing in this Agreement shall be deemed to prevent the City from disseminating any other information, using the means of dissemination set forth in this Agreement or any other means of communication, or including any other information in any Annual Financial Information or notice of occurrence of a Specified Event, in addition to that which is required by this Agreement. If the City chooses to include any information in any Annual Financial Information or notice of occurrence of a Specified Event in addition to that which is specifically required by this Agreement, the City shall have no obligation under this Agreement to update such information or include it in any future Annual Financial Information or notice of occurrence of a Specified Event. Section 9. Default. (a) In the event of a failure of the City to provide to the Repositories the Annual Financial Information as undertaken by the City in this Agreement, the Beneficial Owner of any Bonds may take such actions as may be necessary and appropriate, including seeking mandamus or specific performance by court order, to cause the City to comply with its obligations to provide Annual Financial Information or notices under this Agreement. (b) Notwithstanding the foregoing, no Beneficial Owner of the Bonds shall have the right to challenge the content or adequacy of the information provided pursuant to Sections 3, 4 or 5 of this Agreement by mandamus, specific performance or other equitable proceedings unless the City shall have been given ninety (90) days' written 10-32370.01 5 S . notice by a Beneficial Owner of the Bonds to remedy the alleged inadequacy of the information provided and unless Beneficial Owners of Bonds representing at least 25% aggregate principal amount of outstanding Bonds shall join in such proceedings. (c) A default under this Agreement shall not be deemed an Event of Default under the Trust Indenture, and the sole remedy under this Agreement in the event of any failure of the City or the Trustee to comply with this Agreement shall be an action to compel performance. Section 10. Duties, Immunities and Liabilities of Trustee. Article X of the Trust Indenture is hereby made applicable to this Agreement as if this Agreement were (solely for this purpose) contained in the Trust Indenture The Trustee shall have only such duties as are specifically set forth in this Agreement, and the City agrees to indemnify and save the Trustee, its officers, directors, employees and agents, harmless against any liabilities which it may incur arising out of or in the exercise or performance of its powers and duties hereunder, including the costs and expenses (including attorneys' fees and expenses) of defending against any claim of liability, but excluding liabilities due to its own negligence or willful misconduct. Section 11. Beneficiaries. This Agreement shall inure solely to the benefit of the City, the Trustee and the Beneficial Owners from time to time of the Bonds, and shall create no rights in any other person or entity. Section 12. Counterparts. This Agreement 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. CITY OF FAYETTEVILLE, ARKANSAS By: Title: Mayor BANK OF OKLAHOMA, N.A., as Trustee By: Title: 10-32370.01 6 EXHIBIT A NOTICE TO REPOSITORIES REGARDING FINANCIAL INFORMATION NAME OF ISSUER: City of Fayetteville, Arkansas NAME OF BOND ISSUE: $ Water and Sewer System Refunding Revenue Bonds, Series 2002A and Series 2002B DATE OF ISSUANCE: May _, 2002 NOTICE IS HEREBY GIVEN that the City of Fayetteville, Arkansas (the "City") has not yet provided Annual Financial Information with respect to the above -named Bonds as required by Section 3 of the Continuing Disclosure Agreement dated as of May _, 2002, between the City and Bank of Oklahoma, N.A., as trustee. [The City anticipates that the Annual Financial Information will be filed by .] Dated: BANK OF OKLAHOMA, N.A., as Trustee cc: City of Fayetteville Stephens Inc. 10-32370.01 raw EXHIBIT B List of Nationally Recognized Municipal Securities Information Repositories at the time of execution and delivery of the Continuing Disclosure Agreement This list may change from time to time. The Agreement requires that information and notices be provided to each Repository. This list should be checked for changes each time information or notice is to be provided. A current list may be obtained from the Securities and Exchange Commission over the Internet at http://www.sec.gov/info/municipal/nrmsir.htm. Bloomberg Municipal Repository 100 Business Park Drive Skillman, NJ 08558 Phone: (609) 279-3225 Fax: (609) 279-5962 E-mail: Munis@Bloomberg.com DPC Data Inc. One Executive Drive Fort Lee, NJ 07024 Phone: (201) 346-0701 Fax: (201) 947-0107 E-mail: nrmsir@dpcdata.com FT Interactive Data Attn: NRMSIR 100 William Street New York, New York 10038 Phone: (212) 771-6999 Fax: (212) 771-7390 (Secondary Market Information) (212) 771-7391 (Primary Market Information) Email: NRMSIR(2 FTID.com Standard & Poor's J. J. Kenny Repository 55 Water Street 45`s Floor New York, NY 10041 Phone: (212) 438-4595 Fax: (212) 438-3975 Email: nrmsir_repository@sandp.com 10-32370.01 B -I BOND PURCHASE AGREEMENT KUTAK ROCK LLP DRAFT 3/14/02 April 2002 City of Fayetteville 113 West Mountain Fayetteville, Arkansas 72701 City of Fayetteville, Arkansas Water and Sewer System Refunding Revenue Bonds, Series 2002A and Series 2002B Ladies and Gentlemen: On the basis of the representations, warranties and agreements and upon the terms and conditions contained herein, the undersigned, Stephens Inc. (the "Underwriter"), hereby offers to enter into this Bond Purchase Agreement (this "Bond Purchase Agreement") with the City of Fayetteville, Arkansas (the "City") which, upon your acceptance of this offer, will be binding upon you and upon the Underwriter. Terms not otherwise defined herein shall have the same meanings as set forth in the Authorizing Ordinance defined and described below. This offer is made subject to your acceptance of this Bond Purchase Agreement on or before midnight on April _, 2002. I. General. Upon the terms and conditions and in reliance upon the respective representations, warranties and covenants herein, the Underwriter hereby agrees to purchase from the City, and the City hereby agrees to sell to the Underwriter, all (but not less than all) of $ City of Fayetteville, Arkansas Water and Sewer System Refunding Revenue Bonds, Series 2002 (the "Bonds"), at the purchase price (the "Purchase Price") of $ (equal to the par amount of the Bonds less underwriter's discount of $ ) plus accrued interest from May 1, 2002, to the Closing Date (hereinafter defined). The Bonds shall be issued by the City pursuant to the provisions of the Constitution and laws of the State of Arkansas, including, particularly, Amendment 65 to the Constitution and Arkansas Code Annotated (1998 Repl. & Supp. 2001) §§14-234-201 et seq., §§14-235-201 et seq. and §§14-164-401 et seq. (collectively, the "Authorizing Legislation"). The Bonds will constitute special and limited obligations of the City, secured solely by and payable solely from (1) a pledge of and lien on the net revenues (the "Net Revenues") of the City's combined water and sewer system (the "System") and (2) moneys on deposit in the Bond Fund and the Debt Service Reserve Fund established by a Trust Indenture to be dated as of May 1, 2002 (the "Indenture"), by and between the City and Bank of Oklahoma, N.A., Tulsa, Oklahoma, as trustee (the "Trustee"), all as more particularly described in the Indenture. The pledge of Net Revenues securing the Bonds is subject and subordinate to a prior pledge of Net 10-32375.01 Revenues securing the City's outstanding Water and Sewer System Refunding Revenue Bonds, Series 1999 (the "Series 1999 Bonds"). The Bonds shall be issued and secured pursuant to an ordinance of the City Council of the City (the "Authorizing Ordinance") which was adopted on March _, 2002, and pursuant to the Indenture. The Bonds shall have the maturities and interest rates as set forth in Exhibit A hereto. The Bonds shall be subject to redemption as set forth in the Indenture and in the Official Statement (hereinafter defined). The proceeds of the Bonds will be utilized (i) to effect an advance refunding of $3,215,000 outstanding principal amount of the City's Water and Sewer System Revenue Bonds, Series 1994 (the "Series 1994 Bonds"), (ii) to effect a current refunding of $10,000,000 outstanding principal amount of the City's Water and Sewer System Subordinate Revenue Bonds, Series 2000 (the "Series 2000 Bonds," and together with the Series 1994 Bonds, the "Refunded Bonds"), (iii) to fund a debt service reserve, (iv) [to pay the premium on a policy of municipal bond insurance], and (v) to pay the costs of issuance of the Bonds. A portion of the proceeds of the Bonds will be deposited pursuant to an Escrow Deposit Agreement to be dated as of the date of delivery of the Bonds (the "Escrow Agreement"), between the City and Bank of Oklahoma, N.A., Tulsa, Oklahoma, as escrow trustee (the "Escrow Trustee"), and will be held, invested and utilized (along with other available moneys) to redeem the Refunded Bonds at the times and in the amount provided in the Escrow Agreement. The City will undertake, pursuant to a Continuing Disclosure Agreement to be dated as of the date of delivery of the Bonds (the "Continuing Disclosure Agreement"), to provide certain annual financial and operating information and notices of the occurrence of certain events, if material, as required by Section (b)(5)(i) of Rule 15c2-12 under the Securities Exchange Act of 1934, as amended (the "Rule"). A description of this undertaking is set forth in the Preliminary Official Statement and will also be set forth in the Official Statement (each hereinafter defined). The City is not in default with respect to any of its obligations under previous undertakings pursuant to the Rule. In order to ensure compliance with the provisions of the Internal Revenue Code of 1986, as amended (the "Code"), the City will enter into a Tax Regulatory Agreement dated as of the date of delivery of the Bonds (the "Tax Regulatory Agreement"). 2. Bona Fide Public Offering. The Underwriter agrees to make a bona fide public offering of all of the Bonds at the offering prices set forth on the cover of the final Official Statement described below. 3. Delivery of Official Statement. (a) The City has previously provided the Underwriter with copies of its Preliminary Official Statement, including the cover page and the appendices thereto, dated March _, 2002, relating to the Bonds (the "Preliminary Official Statement"). As of its date, the Preliminary Official Statement is "deemed final" by the City for purposes of SEC Rule 15c2-12(b)(I). The Preliminary Official Statement, as amended to conform to the terms of this Bond Purchase Agreement, including Exhibit A hereto, and with such other changes and amendments as are mutually agreed to by the City and the Underwriter, is herein referred to as the "Official Statement." 10-32375.01 2 (b) The City agrees to deliver to the Underwriter, at such address as the Underwriter shall specify, as many copies of the final Official Statement dated April _, 2002, relating to the Bonds as the Underwriter shall reasonably request as necessary to comply with paragraph (b)(4) of the Rule (as defined above) and with Rule G-32 and all other applicable rules of the Municipal Securities Rulemaking Board. The City agrees to deliver such final Official Statement within seven (7) business days after the execution hereof. (c) The City hereby authorizes and approves the Preliminary Official Statement and the final Official Statement, consents to their distribution and use by the Underwriter and authorizes the execution of the final Official Statement by a duly authorized officer of the City. (d) The Underwriter shall give notice to the City on the date after which no participating underwriter, as such term is defined in the Rule, remains obligated to deliver final Official Statements pursuant to paragraph (b)(4) of the Rule. 4. City's Representation and Warranties. The City represents and warrants to the Underwriter that: (a) The City is a duly organized and existing political subdivision under the Constitution and laws of the State of Arkansas (the "State"). The City is authorized by the provisions of the Authorizing Legislation to issue the Bonds for the purpose of refunding the Refunded Bonds. (b) The City has the full legal right, power and authority (i) to adopt the Authorizing Ordinance authorizing the issuance of and sale of the Bonds, (ii) to enter into this Bond Purchase Agreement, the Indenture, the Escrow Agreement, the Continuing Disclosure Agreement and the Tax Regulatory Agreement, (iii) to issue, sell and deliver the Bonds to the Underwriter as provided herein, (iv) to deposit the proceeds of the Bonds with the Escrow Trustee pursuant to the Escrow Agreement for the purpose of refunding the Refunded Bonds, (v) to pledge irrevocably the Net Revenues to the payment of the principal of, premium, if any, and interest on the Bonds, and (vi) to carry out and consummate all other transactions contemplated by each of the aforesaid documents, and the City has complied with all provisions of applicable law, including the Authorizing Legislation, in all matters relating to such transactions. (c) The City has duly authorized (i) the execution and delivery of the Bonds and the execution, delivery and due performance of this Bond Purchase Agreement, the Indenture, the Escrow Agreement, the Continuing Disclosure Agreement and the Tax Regulatory Agreement, (ii) the distribution and use of the Preliminary Official Statement and the execution, delivery and distribution of the final Official Statement, and (iii) the taking of any and all such actions as may be required on the part of the City to carry out, give effect to and consummate the transactions contemplated by such instruments. All consents or approvals necessary to be obtained by the City in connection with the foregoing have been received, and the consents or approvals so received remain still in full force and effect. 10-32375.01 3 (d) The Authorizing Ordinance has been duly adopted by City Council of the City, is in full force and effect and constitutes the legal, valid and binding act of the City; and this Bond Purchase Agreement, the Indenture, the Escrow Agreement, the Continuing Disclosure Agreement and the Tax Regulatory Agreement, when executed and delivered, will constitute legal, valid and binding obligations of the City, and this Bond Purchase Agreement, the Indenture, the Escrow Agreement, the Continuing Disclosure Agreement and the Tax Regulatory Agreement are enforceable against the City in accordance with their respective terms, except as enforceability thereof may be limited by bankruptcy, insolvency or other laws affecting creditors' rights generally. (e) When delivered to or at the direction of the Underwriter, the Bonds will have been duly authorized, executed, authenticated, issued and delivered and will constitute legal, valid and binding obligations of the City in conformity with the laws of the State of Arkansas, including the Authorizing Legislation, and will be entitled to the benefit and security of the Authorizing Ordinance and the Indenture. (0 The City has duly approved and authorized the distribution and use of the Preliminary Official Statement and the execution, delivery and distributionof the Official Statement. (g) The information contained in the Preliminary Official Statement is, and as of the Closing Date such information in the final Official Statement will be, true and correct in all material respects, and the Preliminary Official Statement does not and the final Official Statement will not contain any untrue or misleading statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (h) If, at any time prior to the earlier of (i) receipt of notice from the Underwriter pursuant to Section 3(d) hereof that Official Statements are no longer required to be delivered under the Rule or (ii) 25 days after the Closing Date, any event occurs as a result of which the Official Statement, as then amended or supplemented, might include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the City shall promptly notify the Underwriter in writing of such event. Any information supplied by the City for inclusion in any amendments or supplements to the Official Statement will not contain any untrue or misleading statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Upon the request of the Underwriter therefor, the City shall prepare and deliver to the Underwriter, at the City's expense, as many copies of an amendment or supplement to the Official Statement which will correct any untrue statement or omission therein as the Underwriter may reasonably request. (i) Neither the adoption of the Authorizing Ordinance, the execution and delivery of this Bond Purchase Agreement, the Bonds, the Indenture, the Escrow Agreement, the Continuing Disclosure Agreement or the Tax Regulatory Agreement, nor the consummation of the transactions contemplated herein or therein or the compliance 10-32375.01 4 with the provisions hereof or thereof will conflict with, or constitute on the part of the City a violation of, or a breach of or default under, (i) any statute, indenture, mortgage, commitment, note or other agreement or instrument to which the City is a party or by which it is bound, (ii) any provision of the Constitution of the State of Arkansas, or (iii) any existing law, rule, regulation, ordinance, judgment, order or decree to which the City (or the members of its City Council or any of its officers in their respective capacities as such) is subject. All consents, approvals, authorizations and orders of governmental or regulatory authorities, if any, which are required for the City's execution and delivery of, consummation of the transactions contemplated by, and compliance with the provisions of this Bond Purchase Agreement, the Authorizing Ordinance, the Bonds, the Indenture, the Escrow Agreement, the Continuing Disclosure Agreement and the Tax Regulatory Agreement have been obtained. 0) The City has never been in default at any time as to the payment of principal of or interest on any obligation which it has issued, including those which it has issued as a conduit for another entity, except as specifically disclosed in the Official Statement. (k) Except as is specifically disclosed in the Official Statement, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, pending or, to the best knowledge of the City, threatened, which in any way questions the powers of the City referred to in subparagraph 4(b) above, or the validity of any proceeding taken by the City in connection with the issuance of the Bonds, or wherein an unfavorable decision, ruling or finding could materially adversely affect the transactions contemplated by this Bond Purchase Agreement, or of any other document or instrument required or contemplated by the Bond financing, or which, in any way, could adversely affect the validity or enforceability of the Authorizing Ordinance, the Bonds, the Indenture, the Escrow Agreement, the Continuing Disclosure Agreement, the Tax Regulatory Agreement or this Bond Purchase Agreement or, to the knowledge of the City, which in any way questions the exclusion from gross income of the recipients thereof of the interest on the Bonds for federal income tax purposes or in any other way questions the status of the Bonds under federal or State of Arkansas tax laws or regulations. (1) Any certificate signed by any official of the City and delivered to the Underwriter shall be deemed a representation and warranty by the City to the Underwriter as to the truth of the statements therein contained. (m) The City has not been notified of any listing or proposed listing by the Internal Revenue Service to the effect that it is a bond issuer whose arbitrage certifications may not be relied upon. (n) The audited general purpose financial statements and supplemental financial statements of the City for the year ended December 31, 2000, and the unaudited financial statements of the City's Water and Sewer Fund for the year ended December 31, 2001, included in the Official Statement, present fairly the financial position of the City and its Water and Sewer Fund as of the dates indicated and the results of the City's 10-32375.01 5 and its Water and Sewer Fund's operations for the periods specified, and such financial reports and statements have been prepared in conformity with generally accepted governmental accounting principles consistently applied in all material respects to the periods involved, except as otherwise stated in the notes thereto. There has been no material change in the general affairs, management, properties, financial position, capitalization or results of operations of the City or its Water and Sewer Fund since the date of such financial statements except as set forth in the Official Statement. (o) The City will not knowingly take or omit to take any action, which action or omission will in any way cause the proceeds from the sale of the Bonds to be applied in a manner other than as provided in the Indenture or the Escrow Agreement, or which would cause the interest on the Bonds to be includable in gross income for federal income tax purposes. 5. City's Covenants. The City covenants with the Underwriter as follows: (a) The City will cooperate with the Underwriter in qualifying the Bonds for offer and sale under the securities or Blue Sky laws of such jurisdictions of the United States as the Underwriter may request; provided, however, that the City shall not be required to consent to suit or to service of process in any jurisdiction. The City consents to the use by the Underwriter in the course of its compliance with the securities or Blue Sky laws of the various jurisdictions of the documents relating to the Bonds, subject to the right of the City to withdraw such consent for cause by written notice to the Underwriter. (b) Prior to the earlier of (i) receipt of notice from the Underwriter pursuant to Section 3(d) hereof that final Official Statements are no longer required under the Rule or (ii) 25 days after the Closing Date, the City shall provide the Underwriter with such information regarding the City, its Water and Sewer Fund, and the current financial condition and ongoing operations of the City and its Water and Sewer Fund , all as the Underwriter may reasonably request. 6. Closing. At 10:00 a.m. Little Rock time on May _, 2002, or at such other time and/or date as shall have been mutually agreed upon by the City and the Underwriter (the "Closing Date"), the City will deliver the Bonds, or cause the Bonds to be delivered, to or at the direction of the Underwriter, said Bonds to be in definitive form duly executed by the City and authenticated by Bank of Oklahoma, N.A., Tulsa, Oklahoma, as trustee (the "Trustee"), together with the other documents hereinafter mentioned; and the Underwriter will accept such delivery and pay the Purchase Price of the Bonds by making a wire transfer of federal funds payable to the order of the Trustee for the account of the City. The Bonds shall be delivered to The Depository Trust Company in New York, New York, and the activities relating to the final execution and delivery of the Authorizing Ordinance, the Indenture, the Escrow Agreement, the Continuing Disclosure Agreement and the Tax Regulatory Agreement and the other documents related to the Bonds and the payment for the Bonds and the delivery of the certificates, opinions and other instruments as described in Section 8 of this Bond Purchase Agreement shall occur in the offices of Kutak Rock LLP, 425 10-32375.01 6 C1 West Capitol Avenue, Suite 1100, Little Rock, Arkansas ("Bond Counsel") or at such other place as shall have been mutually agreed upon between the City and the Underwriter. The payment for the Bonds and simultaneous delivery of the Bonds to or at the direction of the Underwriter is herein referred to as the "Closing." 7. Underwriter's Right to Cancel. The Underwriter shall have the right to cancel its obligation to purchase the Bonds hereunder by notifying the City in writing or by telegram of its election to do so between the date hereof and the Closing, if at any time hereafter and prior to the Closing: (i) the House of Representatives or the Senate of the Congress of the United States, or a committee of either, shall have pending before it, or shall have passed or recommended favorably, legislation introduced previous to the date hereof, which legislation, if enacted in its form as introduced or as amended, would have the purpose or effect of imposing federal income taxation upon revenues or other income of the general character to be derived by the City or by any similar body under the Authorizing Ordinance or the Indenture or similar documents or upon interest received on obligations of the general character of the Bonds or the Bonds, or of causing interest on obligations of the general character of the Bonds, or the Bonds, to be includable in gross income for purposes of federal income taxation, and such legislation, in the Underwriter's opinion, materially adversely affects the market price of the Bonds; or (ii) a tentative decision with respect to legislation shall be reached by a committee of the House of Representatives or the Senate of the Congress of the United States, or legislation shall be favorably reported or rereported by such a committee or be introduced, by amendment or otherwise, in or be passed by the House of Representatives or the Senate, or recommended to the Congress of the United States for passage by the President of the United States, or be enacted or a decision by a federal court of the United States or the United States Tax Court shall have been rendered, or a ruling, release, order, regulation or official statement by or on behalf of the United States Treasury Department, the Internal Revenue Service or other governmental agency shall have been made or proposed to be made having the purpose or effect, or any other action or event shall have occurred which has the purpose or effect, directly or indirectly, of adversely affecting the federal income tax consequences of owning the Bonds or of any of the transactions contemplated in connection herewith, including causing interest on the Bonds to be included in gross income for purposes of federal income taxation, or imposing federal income taxation upon revenues or other income of the general character to be derived by the City or by any similar body under the Authorizing Ordinance or the Indenture or similar documents or upon interest received on obligations of the general character of the Bonds, or the Bonds which, in the opinion of the Underwriter, materially adversely affects the market price of or market for the Bonds; or (iii) legislation shall have been enacted, or actively considered for enactment with an effective date prior to the Closing, or a decision by a court of the United States shall have been rendered, the effect of which is that the Bonds, including any underlying obligations, or the Indenture, as the case may be, is not exempt from the registration, qualification or other requirements of the Securities Exchange Act of 1933, as amended and 10-32375.01 7 as then in effect, the Securities Exchange Act of 1934, as amended and as then in effect, or the Trust Indenture Act of 1939, as amended and as then in effect; or (iv) a stop order, ruling, regulation or official statement by the Securities and Exchange Commission or any other governmental agency having jurisdiction of the subject matter shall have been issued or made or any other event occurs, the effect of which is that the issuance, offering or sale of the Bonds, including any underlying obligations, or the execution and delivery of the Indenture as contemplated hereby or by the Official Statement, is or would be in violation of any provision of the federal securities laws, including the Securities Act of 1933, as amended and as then in effect, the Securities Exchange Act of 1934, as amended and as then in effect, or the Trust Indenture Act of 1939, as amended and as then in effect; or (v) any event shall have occurred or any information shall have become known to the Underwriter which causes the Underwriter to reasonably believe that the Official Statement as then amended or supplemented includes an untrue statement of a material fact, or omits to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; or (vi) there shall have occurred any outbreak of hostilities or any national or international calamity or crisis, including a financial crisis, the effect of which on the financial markets of the United States is such as, in the reasonable judgment of the Underwriter, would materially adversely affect the market for or market price of the Bonds; or (vii) there shall be in force a general suspension of trading on the New York Stock Exchange, the effect of which on the financial markets of the United States is such as, in the reasonable judgment of the Underwriter, would materially adversely affect the market for or market price of the Bonds; or (viii) a general banking moratorium shall have been declared by federal, New York or State authorities; or (ix) any proceeding shall be pending or threatened by the Securities and Exchange Commission against the City; or (x) additional material restrictions not in force as of the date hereof shall have been imposed upon trading in securities generally by any governmental authority or by any national securities exchange; or (xi) the New York Stock Exchange or other national securities exchange, or any governmental authority, shall impose, as to the Bonds or obligations of the general character of the Bonds, any material restrictions not now in force, or increase materially those now in force, with respect to the extension of credit by, or the charge to the net capital requirements of the Underwriter. 8. Conditions to Underwriter's Obligations. The obligation of the Underwriter to purchase the Bonds shall be subject (a) to the performance by the City of its obligations to be 10-32375.01 performed hereunder at and prior to the Closing, (b) to the accuracy of the representations and warranties of the City herein as of the date hereof and as of the time of the Closing, and (c) to the following conditions, including the delivery by the City of such documents as are enumerated herein in form and substance satisfactory to the Underwriter: (a) The Bonds shall have been duly authorized, executed and delivered in the forms approved by the City in the Indenture with only such changes therein as the Underwriter and the City shall mutually agree upon, which shall in all instances be as described in the final Official Statement; (b) At the time of Closing, (i) the Official Statement, this Bond Purchase Agreement, the Indenture, the Authorizing Ordinance, the Escrow Agreement, the Continuing Disclosure Agreement and the Tax Regulatory Agreement shall be in full force and effect and shall not have been amended, modified or supplemented from the date hereof, except as may have been agreed to in writing by the Underwriter, (ii) the proceeds of the sale of the Bonds and other funds shall be deposited and applied as described in the Indenture Ordinance and the Escrow Agreement, (iii) no default or event of default under the Indenture shall have occurred and be continuing, and (iv) no material adverse change affecting the City or its water and sewer system (the "System") shall have occurred, nor shall any development involving a prospective and material adverse change in, or affecting the business, financial condition, results of operations, prospects or properties of the City or the System have occurred; (c) Receipt of fully executed originals of the Indenture, the Continuing Disclosure Agreement, the Escrow Agreement and the Tax Regulatory Agreement at or prior to the Closing; (d) At or prior to the Closing, the Underwriter shall receive the following documents in such number of counterparts as shall be mutually agreeable to the Underwriter and Bond Counsel: (1) A final approving opinion of Bond Counsel, dated the Closing Date, in substantially the form set forth in Exhibit B hereto; (2) A supplemental opinion of Bond Counsel, addressed to the City, the Trustee and the Underwriter and dated the Closing Date, in substantially the form set forth in Exhibit C hereto; (3) An opinion of Bond Counsel, addressed to the City and the trustee for the Refunded Bonds, to the effect that upon deposit of the moneys as described under the Escrow Agreement with the Escrow Trustee, the Refunded Bonds will be deemed to be paid and discharged and the lien on revenues and net revenues of the System securing the Refunded Bonds will be released; (4) The Official Statement executed by a duly authorized officer of the City; 10-32375.01 9 0 0 (5) Certified copies of the Authorizing Ordinance and all other ordinances and resolutions of the City relating to the Bonds; (6) Photocopies of the Bonds as executed and delivered; (7) A letter from [RATING AGENCY] to the effect that the Bonds have been assigned a rating of no less than "_", which rating shall be in effect as of the Closing Date; (8) [BOND INSURANCE POLICY AND SUPPORTING CERTIFICATES AND OPINIONS]; (9) A letter from Arthur Anderson LLP, independent certified public accountants, in which consent is given to the use of its report on the audited financial statements of the City in the Official Statement and to the references made to the firm in the Official Statement; (10) [AGREED UPON PROCEDURES/COMFORT LETTER FROM ACCOUNTANTS?]; (11) Verification by Thomas & Thomas, Little Rock, Arkansas, independent certified public accountants, of the mathematical accuracy of computations supporting (i) the adequacy of the maturing principal of, and interest on, the Government Obligations (as defined in the Escrow Agreement) deposited under the Escrow Agreement to pay the principal of, redemption premium, if any, and interest on the Series 1994 Bonds, and (ii) the conclusion that the Bonds are not "arbitrage bonds" within the meaning of Section 148(a) of the Internal Revenue Code of 1986, as amended; (12) A certificate, in form and substance satisfactory to the Underwriter, of any duly authorized officer or official of the City satisfactory to the Underwriter, dated as of the Closing Date, to the effect that: (i) each of the City's representations, warranties and covenants contained herein are true and correct as of the Closing Date; (ii) the City has duly adopted the Authorizing Ordinance by all action necessary under the Authorizing Legislation and the laws and Constitution of the State of Arkansas, and has duly authorized the execution, delivery and due performance of the Bonds, the Indenture, the Escrow Agreement, the Continuing Disclosure Agreement, the Tax Regulatory Agreement, the Official Statement and this Bond Purchase Agreement; (iii) no litigation is pending, or to the knowledge of the officer or official of the City signing the certificate after due investigation and inquiry, threatened, to restrain or enjoin the issuance or sale of the Bonds or in any way affecting any authority for or the validity of the Bonds, the Official Statement, the Authorizing Ordinance, the Indenture, the Escrow Agreement, the Continuing Disclosure Agreement, the Tax Regulatory Agreement, or this Bond Purchase Agreement; (iv) the Bonds, the Indenture, the Escrow Agreement, this Bond Purchase Agreement, the Continuing Disclosure Agreement and the Tax Regulatory Agreement, as executed and 10-32375.01 10 delivered by the City, are in the form or in substantially the form approved for such execution by appropriate proceedings of the City; (v) since December 31, 2001, there has not been any material adverse change in the financial condition or results of operations of the City or the System whether or not arising in the ordinary course of business, other than as set forth in the Official Statement; (vi) the Authorizing Ordinance has not been amended, modified or repealed as of the Closing Date, and the Authorizing Ordinance remains in full force and effect; (vii) none of the proceedings of the City taken preliminary to the issuance of the Bonds, as certified in such certificate, has been in any manner repealed, amended or changed; (viii) the City has complied in all respects with the provisions of the Authorizing Legislation and has full legal right, power and authority to issue the Bonds for the purposes stated in the Authorizing Legislation and to enter into this Bond Purchase Agreement, to adopt the Authorizing Ordinance, to issue, sell and deliver the Bonds as provided in this Bond Purchase Agreement, and to carry out and consummate all other transactions contemplated by this Bond Purchase Agreement, the Authorizing Ordinance, the Indenture, the Escrow Agreement, the Continuing Disclosure Agreement and the Tax Regulatory Agreement; (ix) neither the Official Statement nor any amendment or supplement thereto contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; and (x) to the best knowledge of the officer or official of the City signing the certificate, no event affecting the City or the System has occurred since the date of the Official Statement which should be disclosed in the Official Statement for the purposes for which it is used that is necessary to disclose therein in order to make the statements and information therein not misleading in any respect; (13) An opinion of Kit Williams, Esq., City Attorney, dated the Closing Date and addressed to the Underwriter, Bond Counsel and the Trustee, to the effect that (i) the City is a duly organized and validly existing political subdivision and city of the first class, organized under the laws of the State of Arkansas, with full power and authority to adopt the Authorizing Ordinance and to execute and deliver the Bonds, the Indenture, the Escrow Agreement, the Continuing Disclosure Agreement, the Tax Regulatory Agreement and this Bond Purchase Agreement; (ii) the City has duly approved the Preliminary Official Statement and the Official Statement; (iii) the Authorizing Ordinance has been duly adopted by the City by all action necessary under the Authorizing Legislation and the laws and Constitution of the State of Arkansas, and remains in full force and effect; (iv) the Indenture, the Escrow Agreement, the Continuing Disclosure Agreement, the Tax Regulatory Agreement and this Bond Purchase Agreement have been duly authorized, approved, executed and delivered by the City and, subject to the extent that the enforceability of the rights and remedies set forth therein may be limited by bankruptcy, insolvency or other laws affecting creditors' rights generally, constitute valid and binding agreements of the City enforceable in accordance with their terms; (v) the information in the Official Statement under the captions "THE CITY," "THE SYSTEM" and "LEGAL MATTERS" (apart from financial or statistical data contained or incorporated 10-32375.01 11 therein, as to which no view need be expressed) is fair, accurate and complete and does not omit any matter which, in such counsel's opinion, for the purposes for which the Official Statement is to be used, should be included or referred to therein; (vi) excepting those matters discussed in the Official Statement, there is no action, suit or proceeding at law or in equity before or by any court, public board or body, pending or threatened, against or affecting the City, challenging the validity of the transactions contemplated by the Official Statement or the validity of the Bonds, the Authorizing Ordinance, the Indenture, the Escrow Agreement, the Continuing Disclosure Agreement, the Tax Regulatory Agreement or this Bond Purchase Agreement and, to the best of such counsel's knowledge, there is no investigation, pending or threatened, and no threatened action, suit or proceeding involving any of the matters hereinabove mentioned in this clause (vi); (vii) the execution and delivery of the Authorizing Ordinance, the Indenture, the Escrow Agreement, the Continuing Disclosure Agreement, the Tax Regulatory Agreement and this Bond Purchase Agreement, and compliance with the provisions hereof and thereof, under the circumstances contemplated hereby and thereby, do not and will not in any material respect conflict with or constitute on the part of the City a breach of or default under any agreement or other instrument to which the City is a party or any existing law, regulation, court order or consent decree to which the City is subject; and (viii) based upon the examinations which such counsel has made as counsel to the City, which shall be specified, nothing has come to such counsel's attention which would lead such counsel to believe that the Official Statement (except for the financial statements and other financial data included in the Official Statement, as to which no view need be expressed) contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (14) Evidence that Federal Form 8038-G has been executed by the City and is ready for filing with the Internal Revenue Service. (15) Evidence that, except as disclosed in the Official Statement, all necessary approvals, whether legal or administrative, have been obtained from applicable federal, state and local entities and agencies; and (16) Such additional legal opinions, certificates, proceedings, instruments and other documents as the Underwriter and Bond Counsel may reasonably request to evidence compliance by the City with legal requirements, the truth and accuracy, as of the time of Closing, of the representations of the City herein contained and the due performance or satisfaction by the City at or prior to such time of all agreements then to be performed and all conditions then to be satisfied. If the City shall be unable to satisfy the conditions to the obligations of the Underwriter contained in this Bond Purchase Agreement, or if the obligation of the Underwriter to purchase and accept delivery of the Bonds shall be terminated for any reason permitted by this Bond 10-32375.01 12 Purchase Agreement, this Bond Purchase Agreement shall terminate and neither the Underwriter nor the City shall be under further obligation hereunder; except that the respective obligations to pay expenses, as provided in Section 12 hereof, shall continue in full force and effect. 9. Conditions to Obligations of the City. The obligations of the City hereunder are subject to the performance by the Underwriter of its obligations hereunder. 10. Survival. All representations, warranties and agreements of the City shall remain operative and in full force and effect, regardless of any investigations made by or on behalf of the Underwriter, and shall survive the Closing. The obligations of the City under Sections 11 or 12 hereof shall survive any termination of this Bond Purchase Agreement by the Underwriter pursuant to the terms hereof. 11. Indemnification. The City, to the extent permitted by law, agrees to indemnify and hold harmless the Underwriter, each member, officer, director, partner or employee of the Underwriter and each person who controls the Underwriter within the meaning of Section 15 of the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as amended (collectively called the "Indemnified Parties"), against any and all losses, claims, damages, liabilities or expenses (including any legal or other expenses incurred by an Indemnified Party in connection with investigating any claims against an Indemnified Party and defending any actions) whatsoever caused by any untrue statement or misleading statement or alleged untrue statement or alleged misleading statement of a material fact contained in the Official Statement or caused by any omission or alleged omission from the Official Statement of any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading insofar as such losses, claims, damages, liabilities or expenses are caused by any such untrue or misleading statement or omission or alleged untrue or misleading statement or omission in the information contained in the Official Statement; provided, however, that the City shall not be liable to an Indemnified Party in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in any of such documents in reliance upon and in conformity with written information furnished to the City by the Underwriter specifically for use therein. No Indemnified Parties shall be indemnified hereunder for any losses, claims, damages or liabilities resulting from the negligence of such Indemnified Parties. 12. Payment of Expenses. The City will pay or cause to be paid all reasonable expenses incident to the performance of its obligations under this Bond Purchase Agreement, including, but not limited to, expenses of mailing or delivery of the Bonds, costs of printing the Bonds, the Preliminary and final Official Statements, any amendment or supplement to the Preliminary or final Official Statement and this Bond Purchase Agreement, fees and disbursements of Bond Counsel, any fees charged by investment rating agencies for the rating of the Bonds, bond insurance premiums, if any, fees of the Trustee and any paying agent fees, and any fees and disbursements in connection with the qualification of the Bonds for sale under the securities or "Blue Sky" laws of the various jurisdictions and the preparation of "Blue Sky" memoranda. In the event this Bond Purchase Agreement shall terminate because of the default of the Underwriter, the City will, nevertheless, pay, or cause to be paid, all of the expenses specified above. The Underwriter shall pay all advertising expenses in connection with the 10-32375.01 13 public offering of the Bonds, and all other expenses incurred by it in connection with the public offering and distribution of the Bonds, including the fees and expenses of any counsel retained by the Underwriter. If the City defaults under this Bond Purchase Agreement, the Underwriter may bring whatever legal action it may have against the City to recover damages, if any, incurred by the Underwriter. 13. Notices. Any notice or other communication to be given to the City under this Bond Purchase Agreement may be given by delivering the same in writing at the address set forth above, and any notice or other communication to be given to the Underwriter under this Bond Purchase Agreement may be given by delivering the same in writing to Stephens Inc., 3425 North Futrall, Suite 201, Fayetteville, AR 72703, Attention: Mr. Dennis Hunt. 14. Nonassignability. This Bond Purchase Agreement is made solely for the benefit of the City and the Underwriter (including any successor or assign of the Underwriter), and no other person, including any purchaser of the Bonds, shall acquire or have any right hereunder or by virtue hereof. 15. Applicable Law. This Bond Purchase Agreement shall be governed by and construed in accordance with the laws of the State of Arkansas. 16. Counterparts. This Bond Purchase Agreement shall become effective upon your acceptance hereof and may be executed in counterparts, each of which shall be regarded as an original and all of which shall constitute one and the same document. Very truly yours, STEPHENSINC. By: Authorized Representative Accepted and agreed to as of the date first above written: CITY OF FAYETTEVILLE, ARKANSAS By: Title: Mayor 10-32375.01 14 EXHIBIT A MATURITY SCHEDULE SERIES 2002A BONDS (August 15) Principal Interest (August 15) Principal Interest Maturity Amount Rate Maturity Amount Rate 2002 $ % 2006 $ % 2003 2007 2004 2008 2005 (with accrued interest on all Series 2002A Bonds from May 1, 2002) The Series 2002A Bonds are not subject to redemption prior to maturity. SERIES 2002B BONDS (August 15) Principal Interest (August 15) Principal Interest Maturity Amount Rate Maturity Amount Rate 2002 $ % 2010 $ % 2003 2011 2004 2012 2005 2013 2006 2014 2007 2015 2008 2016 2009 2017 (with accrued interest on all Series 2002B Bonds from May I, 2002) The Series 2002B Bonds are subject to redemption prior to maturity as described in the Indenture. 10-32375.01 A-1 EXHIBIT B PROPOSED FORM OF BOND COUNSEL APPROVING OPINION Upon delivery of the Series 2002 Bonds in definitive form, Kutak Rock LLP, Little Rock, Arkansas, proposes to deliver its approving opinion in substantially the following form: May _, 2002 City of Fayetteville, Arkansas Fayetteville, Arkansas Bank of Oklahoma, N.A., as Trustee Tulsa, Oklahoma Stephens Inc. Little Rock, Arkansas City of Fayetteville, Arkansas Water and Sewer System Refunding Revenue Bonds Series 2002A and Series 2002B Ladies and Gentlemen: We have acted as bond counsel in connection with the issuance and sale by the City of Fayetteville, Arkansas (the "City"), a political subdivision of the State of Arkansas, of its $ Water and Sewer System Refunding Revenue Bonds, Series 2002A and Series 2002B (the "Bonds"). The Bonds are being issued pursuant to the provisions of the Constitution and laws of the State of Arkansas, including, particularly, Amendment 65 and Arkansas Code Annotated (1998 Repl. & Supp. 2001) §§14-164-401 et seq., §§14-234-201 et seq. and §§14-235-201 et seq. (collectively, and as from time to time amended, the "Authorizing Legislation"), pursuant to Ordinance No. of the City, duly adopted and approved on , 2002 (the "Bond Ordinance" ), and pursuant to a Trust Indenture dated as of May 1, 2002 (the "Indenture"), by and between the City and Bank of Oklahoma, N.A., as trustee (the "Trustee"). Reference is hereby made to the Indenture and to all indentures supplemental thereto for the provisions, among others, with respect to the conditions for the issuance of parity debt by the City, the nature and extent of the security for the Bonds, the rights, duties and obligations of the City, the Trustee and the holders of the Bonds, and the terms upon which the Bonds are issued and secured. Reference is made to an opinion of even date herewith of Kit Williams, Esq., City Attorney, a copy of which is on file with the Trustee, with respect, among other matters, to the status and valid existence of the City, the power of the City to adopt the Bond Ordinance and 10-32375.01 B -I enter into and perform its obligations under the Indenture, the valid adoption of the Bond Ordinance and the due authorization, execution and delivery of the Indenture by the City, and with respect to the Indenture being enforceable upon the City. We have examined the law and such certified proceedings and other papers as we have deemed necessary to render this opinion. As to questions of fact material to our opinion, we have relied upon the representations of the City contained in the Bond Ordinance and the Indenture and in the certified proceedings and other certifications of public officials furnished to us, without undertaking to verify the same by independent investigation. Based upon the foregoing, we are of the opinion, under existing law, as follows: I. The City is duly created and validly existing as a municipal corporation of the State of Arkansas. Pursuant to the Constitution and laws of the State of Arkansas, including, particularly, Amendment 65 and the Authorizing Legislation, the City is empowered to adopt the Bond Ordinance, to execute and deliver the Indenture, to perform the agreements on its part contained therein, and to issue the Bonds. 2. The Bond Ordinance has been duly adopted by the City and constitutes a valid and binding obligation of the City enforceable upon the City in accordance with its terms. 3. The Indenture has been duly authorized, executed and delivered by the City and is a valid and binding obligation of the City enforceable upon the City in accordance with its terms. 4. The Bonds have been validly authorized, executed, issued and delivered by the City and represent valid and binding special obligations of the City. The principal, premium, if any, and interest on the Bonds shall be payable from, and shall be secured by an assignment and pledge by the City to the Trustee of, the Net Revenues (as defined in the Indenture) of the City's water and sewer system, subject to the prior pledge of Net Revenues securing the City's Water and Sewer System Refunding Revenue Bonds, Series 1999, and any additional Prior Bonds (as defined in the Indenture) issued hereafter. 5. The Net Revenues have been duly and validly assigned and pledged to the Trustee under the Indenture, and the Indenture creates, as security for the Bonds, a valid security interest in the Net Revenues. 6. The interest on the Bonds is excluded from gross income for federal income tax purposes and is not an item of tax preference for purposes of the federal alternative minimum tax imposed on individuals and corporations; it should be noted, however, that, for the purpose of computing the alternative minimum tax imposed on corporations (as defined for federal income tax purposes), such interest is taken into account in determining adjusted current earnings for purposes of such alternative minimum tax. The opinions set forth in the preceding sentence are subject to the condition that the City comply with all requirements of the Internal Revenue Code of 1986, as amended, that must be satisfied prior to or subsequent to the issuance of the Bonds in order that the interest thereon be, or continue to be, excluded from gross income for federal income tax purposes. The City has covenanted to comply with each such requirement. Failure to comply with certain of such requirements may cause the inclusion of interest on the Bonds in 10-32375.01 B-2 gross income for federal income tax purposes to be retroactive to the date of issuance of the Bonds. We express no opinion regarding other federal tax consequences arising with respect to the Bonds. 7. The interest on the Bonds is exempt from all state, county and municipal taxes in the State of Arkansas. 8. The Bonds are exempt from registration pursuant to the Securities Act of 1933, as amended, and the Indenture is not required to be qualified under the Trust Indenture Act of 1939, as amended, in connection with the offer and sale of the Bonds. It is to be understood that the rights of the registered owners of the Bonds and the enforceability of the Bonds, the Bond Ordinance and the Indenture may be subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights heretofore or hereafter enacted to the extent constitutionally applicable and that their enforcement may also be subject to the exercise of judicial discretion in appropriate cases. Very truly yours, 10-32375.01 B-3 EXHIBIT C PROPOSED FORM OF BOND COUNSEL SUPPLEMENTAL OPINION City of Fayetteville, Arkansas Fayetteville, Arkansas Bank of Oklahoma, N.A., as Trustee Tulsa, Oklahoma Stephens Inc. Little Rock, Arkansas May _, 2002 City of Fayetteville, Arkansas Water and Sewer System Refunding Revenue Bonds Series 2002A and Series 2002B Ladies and Gentlemen: This opinion supplements our bond approving opinion, dated the date hereof, relating to the above -captioned bonds (the "Bonds"). Except as otherwise defined herein, the terms used herein shall have the meanings prescribed for them said opinion. In addition to the documents specifically mentioned in that opinion, we have examined the portions of the Official Statement dated May _, 2002, with respect to the Bonds (the "Official Statement"), captioned "INTRODUCTORY STATEMENT," "THE SERIES 2002 BONDS," "SECURITY FOR THE BONDS," "ESTIMATED SOURCES AND USES OF FUNDS," "DEFINITIONS OF CERTAIN TERMS," "SUMMARY OF THE INDENTURE," "SUMMARY OF THE CONTINUING DISCLOSURE AGREEMENT," "TAX EXEMPTION," and "APPENDIX C — Form of Opinion of Bond Counsel" (the "Relevant Captions") insofar as they relate to this opinion. In connection with this opinion, we have also examined: (a) An executed counterpart of the Trust Indenture dated as of May 1, 2002 (the "Indenture"), by and between the City and Bank of Oklahoma, N.A., as trustee (the "Trustee"); (b) An executed counterpart of the Escrow Deposit Agreement dated as of May _, 2002 (the "Escrow Agreement"), by and between the City and Bank of Oklahoma, N.A., as escrow trustee (the "Escrow Trustee"); (c) An executed counterpart of the Continuing Disclosure Agreement dated as of May _, 2002 (the "Continuing Disclosure Agreement"), by and between the City and the Trustee; 10-32375.01 C-1 (d) An executed counterpart of the Tax Regulatory Agreement dated as of May _, 2002 (the "Tax Regulatory Agreement"), by and between the City and the Trustee; and (e) An executed counterpart of the Bond Purchase Agreement dated April _, 2002 (the "Bond Purchase Agreement"), by and between the City and Stephens Inc. (the "Underwriter"). Based on our examination, we are of the opinion, as of the date hereof and under existing law, as follows: 1. The statements contained in the Official Statement under the Relevant Captions, insofar as such statements purport to summarize certain provisions of the Bonds, the Indenture and the Continuing Disclosure Agreement, or conclusions of law and legal opinions, are true, accurate and correct summaries thereof in all material respects and do not omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. 2. The Indenture has been duly authorized, executed and delivered by the City and, assuming due authorization, execution and delivery by the Trustee, the Indenture Agreement represents the valid and binding agreement of the City enforceable in accordance with its terms. 3. The Escrow Agreement has been duly authorized, executed and delivered by the City and, assuming due authorization, execution and delivery by the Escrow Trustee, the Escrow Agreement represents the valid and binding agreement of the City enforceable in accordance with its terms. 4. The Continuing Disclosure Agreement has been duly authorized, executed and delivered by the City and, assuming due authorization, execution and delivery by the Trustee, the Continuing Disclosure Agreement represents the valid and binding agreement of the City enforceable in accordance with its terms. 5. The Tax Regulatory Agreement has been duly authorized, executed and delivered by the City and, assuming due authorization, execution and delivery by the Trustee, the Tax Regulatory Agreement represents the valid and binding agreement of the City enforceable in accordance with its terms. 6. The Bond Purchase Agreement has been duly authorized, executed and delivered by the City and, assuming due authorization, execution and delivery by the Underwriter, the Bond Purchase Agreement represents the valid and binding agreement of the City enforceable in accordance with its terms. The obligations of the parties, and the enforceability thereof, with respect to the documents and other items described above are subject, in part, to the provisions of the bankruptcy laws of the United States of America and to other applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally, now or hereafter in effect. Certain of the obligations, and the enforcement thereof, are also 10-32375.01 C-2 �� • subject to general equity principles, which may limit the specific enforcement of certain remedies but which do not affect the validity of such item. This opinion is being rendered to you solely for your benefit. Very truly yours, 10-32375.01 C-3 KUTAK ROCK LLP DRAFT 3/18/02 ESCROW DEPOSIT AGREEMENT Dated May _, 2002 Between CITY OF FAYETTEVILLE, ARKANSAS Issuer and BANK OF OKLAHOMA, N.A. Escrow Trustee Pertaining to: Advance Refunding of: $3,215,000 City of Fayetteville, Arkansas Water and Sewer System Revenue Bonds Series 1994 and Current Refunding of: $10,000,000 City of Fayetteville, Arkansas Water and Sewer System Subordinate Revenue Bonds Series 2000 Prepared by: Kutak Rock LLP 425 West Capitol Avenue, Suite 1100 Little Rock, Arkansas 72201 10-32372.01 LDi.Y1T.Z1Ivan ' 17.y Y txeT:iu I IRfl 1 THIS ESCROW DEPOSIT AGREEMENT (this "Agreement"), dated May _, 2002, by and between the City of Fayetteville, Arkansas (the "City"), a city of the first class organized and existing by virtue of the laws of the State of Arkansas, and Bank of Oklahoma, N.A., as escrow trustee (the "Escrow Trustee"), a banking corporation organized under and existing by virtue of the laws of the United States of America and having its principal corporate trust office in Tulsa, Oklahoma; WITNESSETH: WHEREAS, the City has heretofore issued its $5,500,000 Water and Sewer System Revenue Bonds, Series 1994, dated October 1, 1994, of which $3,215,000 in aggregate principal amount remain outstanding and are stated to mature (or be subject to mandatory sinking fund redemption) on August 15, 2002 to 2008, inclusive (the "Series 1994 Bonds"), as identified on the attached Schedule I; and WHEREAS, the City has heretofore issued its $10,000,000 Water and Sewer System Subordinate Revenue Bonds, Series 2000, dated November 1, 2000, of which $10,000,000 in aggregate principal amount remain outstanding and are stated to mature in whole on November 1, 2006 (the "Series 2000 Bonds"), as identified on the attached Schedule I; and WHEREAS, pursuant to Ordinance No. adopted and approved by the City Council of the City on March 18 2002, and the Constitution and laws of the State of Arkansas, the City has authorized (i) the issuance of $ aggregate principal amount of its Water and Sewer System Refunding Revenue Bonds, Series 2002A (the "Series 2002A Bonds"), a portion the proceeds of which are to be utilized, together with other available funds and investment earnings thereon, to accomplish an advance refunding of all of the Series 1994 Bonds in accordance with the requirements of Sections _ and _ of Ordinance No. adopted and approved on , 1994, and (ii) the issuance of $ aggregate principal amount of its Water and Sewer System Refunding Revenue Bonds, Series 2002B (the "Series 2002B Bonds"), a portion of the proceeds of which are to be utilized, together with other available funds, to accomplish a current refunding of all of the Series 2000 Bonds in accordance with the requirements of Section 301(a) of a Trust Indenture dated as of November 1, 2000, by and between the City and Bank of Oklahoma, N.A., as trustee; and WHEREAS, the City has made arrangements for the Escrow Trustee to purchase, with (a) a portion of the proceeds derived from the sale of the Series 2002A Bonds, (b) amounts released from the Bond Fund for the Series 1994 Bonds, and (c) amounts released from the Debt Service Reserve Fund for the Series 1994 Bonds, the 1994 Government Obligations (hereinafter defined), the principal of and interest on which, when due, together with an initial cash deposit, will provide sufficient moneys to enable the Escrow Trustee: (i) to deposit with itself as the trustee and the paying agent for the Series 1994 Bonds (the "1994 Paying Agent") sufficient moneys to pay, as the same shall become due 10-32372.01 and payable, the principal of all of the Series 1994 Bonds at maturity and upon redemption to and including August 15, 2004; and (ii) to deposit with itself as the 1994 Paying Agent sufficient moneys to pay, as the same shall become due and payable, the interest to accrue on all Series 1994 Bonds to their respective dates of payment or redemption; and WHEREAS, (i) a portion of the proceeds derived from the sale of the Series 2002B Bonds, (ii) amounts released from the Bond Fund for the Series 2000 Bonds, (iii) amounts released from the Debt Service Reserve Fund for the Series 2000 Bonds, and (iv) amounts released from the Project Fund for the Series 2000 Bonds, will in the aggregate provide sufficient moneys to enable the Escrow Trustee: (i) to deposit with itself as the trustee and the paying agent for the Series 2000 Bonds (the "2000 Paying Agent") sufficient moneys to pay, as the same shall become due and payable upon redemption, the principal of all of the Series 2000 Bonds to and including [June] 1, 2002; and (ii) to deposit with itself as the 2000 Paying Agent sufficient moneys to pay, as the same shall become due and payable, the interest to accrue on all Series 2000 Bonds to their respective dates of payment or redemption; and WHEREAS, the schedule of principal and interest requirements for retiring the Series 1994 Bonds and the Series 2000 Bonds upon redemption prior to maturity is attached hereto as Schedule II; and WHEREAS, the City has entered into this Agreement with the Escrow Trustee prior to the delivery of the Series 2002A Bonds and the Series 2002B Bonds in order to make adequate provision for the retirement and redemption of the Series 1994 Bonds and the Series 2000 Bonds and to make provision for the payment of the fees and expenses of the Escrow Trustee; NOW, THEREFORE, in consideration of the mutual covenants and benefits hereinafter set forth and for other valuable consideration, the receipt of which is hereby acknowledged by each party hereto, the Issuer and the Escrow Trustee agree as follows: Section 1. (a) There is hereby created and established with the Escrow Trustee a special, segregated and irrevocable escrow account designated "City of Fayetteville, Arkansas - 1994 Refunding Escrow Fund" (the "1994 Escrow Fund") to be held in the custody of the Escrow Trustee as a trust fund for the benefit of the registered owners of the Series 1994 Bonds, separate and apart from other funds of the City and the Escrow Trustee. The Escrow Trustee hereby accepts the 1994 Escrow Fund and acknowledges the receipt and irrevocable deposit to the credit of the 1994 Escrow Fund of the sum of $ in immediately available funds consisting of (a) $ of proceeds received by the City from the sale and delivery of the Series 2002A Bonds (the "2002A Bond Proceeds"), (b) $ released from the Bond Fund for the Series 1994 Bonds (the "1994 Bond Fund Moneys") and (c) $ released 10-32372.01 2 from the Debt Service Reserve Fund for the Series 1994 Bonds (the "1994 Reserve Fund Moneys"). (b) There is hereby created and established with the Escrow Trustee a special, segregated and irrevocable escrow account designated "City of Fayetteville, Arkansas - 2000 Refunding Escrow Fund" (the "2000 Escrow Fund") to be held in the custody of the Escrow Trustee as a trust fund for the benefit of the registered owners of the Series 2000 Bonds, separate and apart from other funds of the City and the Escrow Trustee. The Escrow Trustee hereby accepts the 2000 Escrow Fund and acknowledges the receipt and irrevocable deposit to the credit of the 2000 Escrow Fund of the sum of $ in immediately available funds consisting of (a) $ of proceeds received by the City from the sale and delivery of the Series 2002B Bonds (the "2002B Bond Proceeds"), (b) $ released from the Bond Fund for the Series 2000 Bonds (the "2000 Bond Fund Moneys"), (c) $ released from the Debt Service Reserve Fund for the Series 2000 Bonds (the "2000 Reserve Fund Moneys"), and (d) $ released from the Project Fund for the Series 2000 Bonds (the "2000 Project Fund Moneys"). Section 2. The Escrow Trustee represents and acknowledges that, concurrently with the deposit of the amounts set forth in Section 1(a) above, it will use the 2002A Bond Proceeds, the 1994 Bond Fund Moneys and the 1994 Reserve Fund Moneys (i) to purchase on behalf of and for the account of the City from the United States Treasury certain [United States Treasury Certificates of [Indebtedness][Deposit] and Notes —State and Local Government Series ("SLGS"), which are the noncallable direct obligations of the United States of America in book -entry form] in the aggregate principal or par amount of $ , as further described in Schedule III hereto (the "1994 Government Obligations"), by payment of said principal or par amount to the Federal Reserve Bank Branch, [Louisville, Kentucky], and (ii) to make a cash deposit in the 1994 Escrow Fund in the amount of $_____ (the "1994 Cash Deposit"). The Escrow Trustee will receive book -entry credits for the 1994 Government Obligations and will credit the 1994 Government Obligations to the 1994 Escrow Fund. The 1994 Cash Deposit will be made from 2002A Bond Proceeds and will be held uninvested as cash and disbursed by the Escrow Trustee to pay a portion of the interest due on the Series 1994 Bonds. Section 3. The Escrow Trustee represents and acknowledges that, concurrently with the deposit of the amounts set forth in Section I (b) above, it will hold the 2002B Bond Proceeds, the 2000 Bond Fund Moneys, the 2000 Reserve Fund Moneys and the 2000 Project Fund Moneys as uninvested cash (the "2000 Cash Deposit") in the 2000 Escrow Fund to be disbursed by the Escrow Trustee to pay the principal of and interest on the Series 2000 Bonds due on [June] 1, 2002. Section 4. In reliance upon the mathematical verifications performed by Thomas & Thomas, Little Rock, Arkansas, certified public accountants, the City has determined that the interest on and the principal amounts successively maturing on the 1994 Government Obligations in accordance with their terms and the 1994 Cash Deposit are sufficient in the aggregate to assure that moneys will be available to the Escrow Trustee in amounts sufficient, without further investment, to pay and redeem the Series 1994 Bonds and to pay the interest thereon as described 10-32372.01 3 in the preamble to this Agreement and in Schedule II hereto. If the City shall fail to deposit initially with the Escrow Trustee cash and the 1994 Government Obligations the interest on and principal of which shall be sufficient, together with such cash, to make such payments as they become due and payable, the City shall timely deposit in the 1994 Escrow Fund such additional amounts as may be required to meet fully the amount so to become due and payable. Notice of any insufficiency shall be given by the Escrow Trustee to the City as promptly as possible, but the Escrow Trustee shall in no manner be responsible for any insufficiency of funds or the City's failure to make deposits. Section 5. (a) The Escrow Trustee shall, from the moneys and investments in the 1994 Escrow Fund, timely provide the 1994 Paying Agent with amounts sufficient to pay the principal of and interest on each of the Series 1994 Bonds as the same become due and payable in accordance with Schedule II hereto. (b) The Escrow Trustee shall, from the moneys and investments in the 2000 Escrow Fund, timely provide the 2000 Paying Agent with amounts sufficient to pay the principal of and interest on each of the Series 2000 Bonds as the same become due and payable in accordance with Schedule II hereto. Section 6. (a) The Escrow Trustee shall hold the 1994 Government Obligations and the 1994 Cash Deposit in the 1994 Escrow Fund at all times as a special and separate trust fund irrevocably pledged for the benefit of the registered owners of the Series 1994 Bonds, wholly segregated from other funds and securities on deposit with it, shall never commingle the 1994 Government Obligations or the 1994 Cash Deposit with other funds or securities owned or held by it, and shall never at any time use, loan or borrow the same in any way other than as provided in this Agreement. (b) The Escrow Trustee shall hold the 2000 Cash Deposit in the 2000 Escrow Fund at all times as a special and separate trust fund irrevocably pledged for the benefit of the registered owners of the Series 2000 Bonds, wholly segregated from other funds and securities on deposit with it, shall never commingle the 2000 Government Obligations or the 2000 Cash Deposit with other funds or securities owned or held by it, and shall never at any time use, loan or borrow the same in any way other than as provided in this Agreement. (c) The Escrow Trustee shall also hold any other money in the 1994 Escrow Fund and the 2000 Escrow Fund wholly segregated from other funds on deposit with it, shall never commingle such money with other funds owned or held by it, and shall never at any time use, loan or borrow the same in any way other than as provided in this Agreement. Nothing herein contained shall be construed as requiring the Escrow Trustee to keep the identical money, or any part thereof, in the 1994 Escrow Fund or the 2000 Escrow Fund if it is impractical, but money of an equal amount, except to the extent represented by the 1994 Government Obligations, must always be maintained on deposit in the 1994 Escrow Fund and the 2000 Escrow Fund as trust funds held by the Escrow Trustee; and special accounts for the 1994 Escrow Fund and the 2000 Escrow Fund evidencing such facts shall at all times be maintained on the books of the Escrow Trustee. 10-32372.01 4 I Section 7. The Escrow Trustee shall from time to time collect and receive the interest accruing and payable on the 1994 Government Obligations and the maturing principal amounts of the 1994 Government Obligations as the same become due and immediately credit the same to the 1994 Escrow Fund so that the interest on and principal of the 1994 Government Obligations, as such become due, will be available, together with the 1994 Cash Deposit, to meet the payment requirements of the Series 1994 Bonds, as shown on Schedule II hereto. Section 8. (a) As shown on Schedule IV hereto, the Escrow Trustee shall apply the principal and interest received from the 1994 Government Obligations and the 1994 Cash Deposit to the payment of the interest on and the maturing principal of the Series 1994 Bonds. Principal and interest received on the 1994 Government Obligations and not needed at the time to make the aforesaid payments on the Series 1994 Bonds shall remain in trust and be held in cash uninvested. The 1994 Escrow Fund shall continue in effect to and including the date upon which the Escrow Trustee makes the final deposit with itself as the 1994 Paying Agent in an amount sufficient to pay the balance of the principal of and interest coming due on the Series 1994 Bonds, whereupon the Escrow Trustee shall transfer any remaining balance in the 1994 Escrow Fund to the Bond Fund for the Series 2002A Bonds. (b) The Escrow Trustee shall apply the 2000 Cash Deposit to the payment of the interest on and the maturing principal of the Series 2000 Bonds. The 2000 Escrow Fund shall continue in effect to and including the date upon which the Escrow Trustee makes the final deposit with itself as the 2000 Paying Agent in an amount sufficient to pay the balance of the principal of and interest coming due on the Series 2000 Bonds, whereupon the Escrow Trustee shall transfer any remaining balance in the 2000 Escrow Fund to the Bond Fund for the Series 2002B Bonds. Section 9. At the written request of the City and upon compliance with the conditions hereinafter set forth, the Escrow Trustee shall have the power to sell, transfer or otherwise dispose of or request the redemption of the 1994 Government Obligations acquired hereunder and to substitute for the 1994 Government Obligations (a) other direct noncallable obligations of, or direct noncallable and nonprepayable obligations the full and timely payment of principal of and interest on which is unconditionally guaranteed by, the United States of America, and/or (b) to the extent then authorized by law, evidences of direct ownership of future interest and principal payments on either direct noncallable obligations of the United States of America or direct non -callable and nonprepayable obligations, the full and timely payment of principal of and interest on which is unconditionally guaranteed by the United States of America, which obligations are held by a bank or trust company organized and existing under the laws of the United States of America or any state thereof in the capacity of custodian in safekeeping on behalf of the holders or owners of such securities or interests (collectively, the "1994 Substitute Defeasance Obligations"). The City hereby covenants that it will not request the Escrow Trustee to exercise any of the powers described in the preceding sentence in any manner which, if reasonably expected on the date of issuance hereof, would cause any of the Series 2002A Bonds or any of the Series 1994 Bonds to be an "arbitrage bond" within the meaning of Section 148 of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder in effect on the date of such request and applicable to obligations issued on the issue date of the Series 2002A Bonds. The Escrow Trustee shall purchase such 1994 Substitute Defeasance Obligations with the proceeds derived from the sale, transfer, disposition or redemption of the 10-32372.01 5 1994 Government Obligations together with any other funds available for such purpose. The foregoing transactions may be effected only if: (i) an independent certified public accountant shall certify that after such transactions the principal amount of and interest income on the 1994 Substitute Defeasance Obligations will, together with any remaining 1994 Government Obligations and other moneys available for the purpose, be sufficient without further investment to pay, as the same become due at maturity or earlier redemption, all principal of and interest on the Series 1994 Bonds which have not been paid previously; (ii) the amounts and dates of the anticipated transfers from the 1994 Escrow Fund to the 1994 Paying Agent for the Series 1994 Bonds will not be diminished or postponed thereby; (iii) the 1994 Substitute Defeasance Obligations will be of comparable credit standing to the 1994 Government Obligations originally purchased; (iv) [notification will be given to Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc., and any other rating agency that the City selects, and] (v) the Escrow Trustee shall receive an unqualified opinion of attorneys nationally recognized on the subject of municipal bonds to the effect that such disposition, substitution or purchase would not cause any of the Series 2002A Bonds or any of the Series 1994 Bonds to be an "arbitrage bond" within the meaning of Section 148 of the Code and the regulations thereunder in effect on the date of such disposition, substitution or purchase and applicable to obligations issued on the issue date of the Series 2002A Bonds. Section 10. The Escrow Trustee shall not be liable or responsible for any loss resulting from any investment made in the 1994 Government Obligations or any 1994 Substitute Defeasance Obligations. Section 11. In the event of the Escrow Trustee's failure to account for any funds or securities received by it for the City's account under this Agreement, such funds and securities shall be and remain the property of the 1994 Escrow Fund or the 2000 Escrow Fund, as the case may be, and the City and the registered owners of the Series 1994 Bonds and the Series 2000 Bonds shall be entitled to the preferred claim and shall have the first lien upon such funds and securities enjoyed by a trust beneficiary. The funds and securities received by the Escrow Trustee under this Agreement shall not be considered as a banking deposit by the City, and the City shall have no right or title with respect thereto. The funds and securities so received by the Escrow Trustee as escrowee and trustee under this Agreement shall not be subject to checks or drafts drawn by the City or claims against the City by any creditor of the City other than the holders or registered owners of the Series 1994 Bonds and the Series 2000 Bonds. Section 12. On or before the last day of February and August of each year, commencing in August 2002, so long as the 1994 Escrow Fund is maintained under this Agreement, the Escrow Trustee shall forward to the City, to the attention of the Administrative Services Director of the City, a statement in detail of the 1994 Government Obligations and the cash in the 1994 Escrow Fund as of the February 15 or August 15, respectively, next preceding and the income to the credit of and withdrawals of money from the 1994 Escrow Fund since the last statement furnished pursuant to this paragraph. Section 13. The City has specifically and irrevocably elected (i) to redeem on August 15, 2004 all of the Series 1994 Bonds maturing on and after August 15, 2005 and (ii) to redeem on [June] 1, 2002 all of the Series 2000 Bonds. The Escrow Trustee is hereby 10-32372.01 6 irrevocably authorized and directed, and hereby agrees, to give or cause to be given notice of such redemption of the Series 1994 Bonds in substantially the form set forth in Appendix A to this Agreement as provided below and to inform the City promptly and in writing of the giving of such notice. [WILL NOTICE OF REDEMPTION OF THE SERIES 2000 BONDS ALREADY HAVE BEEN GIVEN TO BONDHOLDERS AND UNDER THE CDA?] Such notice of redemption shall be mailed by [registered or certified] [first class] mail to all registered owners of the Series 1994 Bonds at their addresses appearing on the registration books of the City maintained by the 1994 Paying Agent, such notice to be placed in the mails not less than 30 days nor more than 60 days prior to the redemption date. The Escrow Trustee is also hereby irrevocably authorized and directed, and hereby agrees, to mail by [registered or certified] [first class] mail, as soon as practicable, to all registered owners of the Series 1994 Bonds at their addresses appearing on such registration books a notice in substantially the form set forth in Appendix B to this Agreement that the Series 1994 Bonds are deemed to have been paid, and the Escrow Trustee will inform the City promptly and in writing of the giving of such notice. The cost of the giving of such notices shall be borne by the City. Section 14. The Escrow Trustee shall have no responsibility to the City or any person in connection herewith except as specifically provided herein and shall not be responsible for anything done or omitted to be done by it except for its own negligence or default in the performance of any obligation imposed on it hereunder. The Escrow Trustee, except as herein specifically provided for, is not a party to, nor is it bound by nor need it give consideration to the terms or provisions of, any other agreement or undertaking between the City and any other person, and the Escrow Trustee assents to and is to give consideration only to the terms and provisions of this Agreement. Unless specifically provided herein, the Escrow Trustee has no duty to determine or inquire into the happening or occurrence of any event or contingency or the performance or failure of performance of the City with respect to arrangements or contracts with others, the Escrow Trustee's sole duty hereunder being to safeguard the 1994 Escrow Fund and the 2000 Escrow Fund, to invest moneys therein and to dispose of and deliver the same in accordance with the provisions of this Agreement. If, however, the Escrow Trustee is called upon by the terns of this Agreement to determine the occurrence of any event or contingency, the Escrow Trustee shall be obligated in making such determination to exercise reasonable care and diligence, and in event of error in making such determination the Escrow Trustee shall be liable for its own misconduct or its negligence. In determining the occurrence of any such event or contingency, the Escrow Trustee may request from the City or any person such reasonable additional evidence as the Escrow Trustee in its discretion may deem necessary to determine any fact relating to the occurrence of such event or contingency and in this connection may inquire and consult with the City, among others, at any time. The Escrow Trustee may consult with legal counsel, and the opinion of such counsel shall be full and complete authority and protection to the Escrow Trustee as to any action taken or omitted by it in good faith and in accordance with such opinion. Section 15. This Agreement is between the City and the Escrow Trustee only, and in connection therewith the Escrow Trustee is authorized by the City to rely upon the 10-32372.01 7 representations of the City with respect to the adequacy of the calculations made by Thomas & Thomas in connection with this Agreement, and the Escrow Trustee shall not be liable to any person in any manner for such reliance. The duty of the Escrow Trustee hereunder shall be only to the City and the registered owners of the Series 1994 Bonds and the Series 2000 Bonds. Neither the City nor the Escrow Trustee shall assign or attempt to assign or transfer its interest or obligations hereunder or any part hereof. Any such assignment or attempted assignment shall be in direct conflict with this Agreement and without effect. Section 16. The Escrow Trustee may act upon any written notice, request, waiver, consent, certificate, receipt, authorization, power of attorney or other instrument or document which the Escrow Trustee in good faith believes to be genuine and to be what it purports to be. Section 17. Any notice, authorization, request or demand required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given when mailed by [registered or certified] [first class] mail, postage prepaid, addressed as follows: If to the City: City of Fayetteville, Arkansas 113 West Mountain Fayetteville, AR 72701 Attention: Administrative Services Director If to the Escrow Trustee: Bank of Oklahoma, N.A. P.O. Box 2300 Tulsa, OK 74192 Attention: Cynthia Wilkinson Any of such addresses may be changed at any time upon written notice of such change sent by [registered or certified][first class] mail, postage prepaid, to the other persons named in this Section 17 by the person effecting the change. Section 18. Whenever under the terms of this Agreement the performance date of any act to be done hereunder shall fall on a day which is not a legal banking day and upon which the Escrow Trustee is not open for business, the performance thereof on the next succeeding business day of the Escrow Trustee shall be deemed to be in full compliance with this Agreement. Whenever time is referred to in this Agreement, it shall be the time recognized by the Escrow Trustee in the ordinary conduct of its normal business transactions. Section 19. Time shall be of the essence in the performance of obligations from time to time imposed upon the Escrow Trustee by this Agreement. Section 20. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective personal representatives, successors and assigns. Section 21. The Escrow Trustee acknowledges receipt of $ and other good and valuable consideration as compensation for all of its costs, charges, services and expenses as Escrow Trustee, 1994 Paying Agent and 2000 Payment Agent for the services rendered or to be rendered pursuant to this Agreement; provided, however, that, to the extent permitted by law, the 10-32372-O1 8 City agrees to indemnify the Escrow Trustee and hold it harmless against any liability which it may incur while acting in good faith and without negligence in its capacity as Escrow Trustee under this Agreement, including, but not limited to, any court costs and reasonable attorneys' fees. Such costs and fees and any other expenses related to such indemnification of the Escrow Trustee shall be paid by the City, and in no event shall such costs and fees and any other expenses related to such indemnification give rise to any claim against the 1994 Escrow Fund or the 2000 Escrow Fund, the moneys in which are solely for the benefit of the registered owners of the Series 1994 Bonds and the Series 2000 Bonds, respectively, until the payment thereof. Section 22. The Escrow Trustee agrees to serve under this Agreement until all of the Series 1994 Bonds and Series 2000 Bonds have been redeemed and to accept as full compensation for its services hereunder and its services as 1994 Paying Agent and 2000 Paying Agent the amount paid pursuant to Section 21. The provisions of this Section 22 shall be binding upon any successor to the Escrow Trustee. Section 23. This Agreement shall terminate when the Series 1994 Bonds and Series 2000 Bonds and the interest thereon have been paid and discharged in accordance with the proceedings authorizing the Series 1994 Bonds and Series 2000 Bonds. Series 24. If any one or more of the covenants or agreements provided in this Agreement on the part of the City or the Escrow Trustee to be performed should be determined by a court of competent jurisdiction to be contrary to law, such covenants or agreements shall be deemed and construed to be severable from the remaining covenants and agreements herein contained and shall in no way affect the validity of the remaining provisions of this Agreement. Jurisdiction for the resolution of any conflict arising from this Agreement shall lie with the Washington County Circuit Court with venue in Fayetteville, Arkansas. Section 25. This Agreement may be executed in several counterparts, all or any of which shall be regarded for all purposes as one original and shall constitute and be but one and the same instrument. Section 26. This Agreement shall be governed by the laws of the State of Arkansas. 10-32372.01 9 S IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by their duly authorized officers and their corporate seals to be hereunto affixed and attested as of the date first above written. CITY OF FAYETTEVILLE, ARKANSAS I� Mayor (SEAL) ATTEST: City Clerk BANK OF OKLAHOMA, N.A. (SEAL) Authorized Officer ATTEST: Authorized Officer 10-32372.01 10 SCHEDULEI OUTSTANDING BONDS Series 1994 Bonds Maturity Date Principal Interest (August 15) Amounts Rates 2002 $ 390,000 5.35% 2003 410,000 5.45 2004 430,000 5.55 2005 455,000* 6.00 2006 480,000* 6.00 2007 510,000* 6.00 2008 540,000 6.00 * Mandatory sinking fund redemption. Series 2000 Bonds Maturity Date Principal Interest (November 1) Amount Rate 2006 $10,000,000 Variable 10-32372.01 1-1 SCHEDULE II REQUIREMENTS TO PAY AND REDEEM THE SERIES 1994 BONDS Principal Payment Date Interest Principal Due Redeemed Total Payment August 15, 2002 $ $390,000.00 $ -0- $ February 15, 2003 -0- -0- August 15, 2003 410,000.00 -0- February 15,2004 -0- -0- August 15, 2004 430,000.00 1,985,000.00 REQUIREMENTS TO PAY AND REDEEM THE SERIES 2000 BONDS Principal Payment Date Interest Principal Due Redeemed Total Payment [June] 1, 2002 $ $ -0- $ 10,000,000.00 $ 10-32372.01 Il-I SCHEDULE III 1994 GOVERNMENT OBLIGATIONS Maturity Principal Interest Type Dates Amounts Rates SLGS* August 15, 2002 $ SLGS* February 15, 2002 % SLGS* August 15, 2003 % SLGS* February 15, 2004 % SLGS* August 15, 2004 % * United States Treasury Obligations — State and Local Government Series 10-32372.01 111-1 SCHEDULE IV AVAILABILITY AND APPLICATION OF 1994 ESCROW ACCOUNT Cash Balance at Receipts from 1994 Debt Service Requirement Cash Balance at Period Ending Beginning of Period Government Obligations to Retire Series 1994 Bonds End of Period 5---02 $ $ -- $ -- $ 8-15-02 2-15-03 8-15-03 2-15-04 8-15-04 10-32372.01 IV -1 APPENDIX A NOTICE OF REDEMPTION City of Fayetteville, Arkansas Water and Sewer System Revenue Bonds Series 1994 NOTICE IS HEREBY GIVEN by the Bank of Oklahoma, N.A., Tulsa, Oklahoma, the trustee and paying agent (the "Trustee") for the Water and Sewer Revenue Bonds, Series 1994, of the City of Fayetteville, Arkansas (the "City"), dated October 1, 1994 (the "Bonds"), that all of the outstanding Bonds maturing on August 15, 2008 are hereby called for redemption and prepayment on August 15, 2004. Each of the Bonds so called for redemption and prepayment shall be redeemed and prepaid at a redemption price of 100% of the principal amount thereof plus accrued interest to the date of redemption. The Bonds so called for redemption shall be payable upon presentation and surrender at the principal corporate trust offices of the Trustee at , Tulsa, Oklahoma , and such Bonds shall cease to bear interest as of August 15, 2004. Withholding of 30% of gross redemption proceeds of any payment made within the United States may be required by the Economic Growth and Tax Relief Reconciliation Act of 2001, unless the paying agent has the correct taxpayer identification number (social security or taxpayer identification number) or exemption certificate or equivalent when presenting your securities for payment. Dated this day of June, 2004. BANK OF OKLAHOMA, N.A., as Trustee By:_ Title: Instructions: Mail by [registered or certified][first class] mail, postage prepaid, to the registered owner of each Series 1994 Bond to be redeemed, addressed to the owners' registered addresses, and placed in the mails between June 16, 2004 and July 16, 2004. 10-32372.01 A_1 NOTICE OF DEFEASANCE City of Fayetteville, Arkansas Water and Sewer System Revenue Bonds Series 1994 NOTICE IS HEREBY GIVEN by the Bank of Oklahoma, N.A., Tulsa, Oklahoma, the trustee and paying agent (the "Trustee") for the Water and Sewer System Revenue Bonds, Series 1994, of the City of Fayetteville, Arkansas (the "City"), dated October 1, 1994 (the "Bonds"), that all of the outstanding Bonds maturing on August 15, 2008, will be called for redemption and prepayment on August 15, 2004. Each of the Bonds so called for redemption and prepayment shall be redeemed and prepaid at a redemption price of 100% of the principal amount thereof plus accrued interest to the date of redemption. The Bonds so called for redemption shall be payable upon presentation and surrender at the principal corporate trust offices of the Trustee at , Tulsa, Oklahoma , and such Bonds shall cease to bear interest as of August 15, 2004. Pursuant to Ordinance No. , adopted by the Board of Directors of the City on , 1994 and providing for the issuance of the Bonds (the "1994 Bond Ordinance"), there have been deposited, with the Trustee, Government Obligations (as defined in the 1994 Bond Ordinance), the principal of and the interest on which when due will provide moneys which, together with other moneys which have also been deposited with the Trustee, shall be sufficient to pay when due the principal of and interest due and to become due on the Bonds on or prior to August 15, 2002, February 15, 2003, August 15, 2003, February 15, 2004 and August 15, 2004, as required by Section of the 1994 Bond Ordinance, and the Bonds are deemed to have been paid in accordance with Section _ of the 1994 Bond Ordinance. Dated this day of , 2002. BANK OF OKLAHOMA, N.A., as Trustee By_ Title: Instructions: Mail by [registered or certified][first class] mail, postage prepaid, to the registered owner of each Series 1994 Bond to be redeemed, addressed to the owners' registered addresses, and placed in the mails as soon as possible after the date of delivery of this Escrow Agreement. 10-32372.01 B-1 SCANNED MIcRO.y L&,m $zsEVILLE TT CITY OF FAYEEVILLE, ARKANSAS SALES AND USE TAX CAPITAL IMPROVEMENT BONDS SERIES 2002 TRANSCRIPT OF PROCEEDINGS 10 Dated as of June 1, 2002 Prepared By: • KUTAK ROCK LLP 425 West Capitol, Suite 1100 Little Rock, Arkansas 72201 $25,000,000 CITY OF FAYETTEVILLE, ARKANSAS SALES AND USE TAX CAPITAL IMPROVEMENT BONDS SERIES 2002 CLOSING INDEX TAB Proceedings and Certificates Related to Election Certificate of City of Fayetteville, Arkansas (the "City") as to Election Matters Exhibit A - Ordinance No. 4327 adopted August 7, 2001, calling a special election and levying a (0.75%) city-wide sales and use tax Exhibit B - Minutes of City Council meeting held August 7, • 2001, reciting adoption of Ordinance No. 4327 3 Exhibit C - Proof of Publication of Ordinance No. 4327 in the Arkansas Democrat -Gazette on August 10, 2001 4 Exhibit D — Notice of Special Election and Proof of Publication in The Morning News of Northwest Arkansas on November 1, 2001 Exhibit E — Copy of Ballot for Special Election Exhibit F — Mayor's Proclamation of Election Results and Proof of Publication in the Northwest Arkansas Times on November 16, 2001 Certificate of Washington County Board of Election Commissioners Ascertaining and Declaring Results of Special Election held November 6, 2001 Proceedings and Certificates Related to Bond Issuance Closing Certificate and Request of the City 9 10-36561.01 • Exhibit A - Ordinance No. 4389 adopted May 7, 2002, authorizing issuance of the Bonds and pledging a (0.75%) city-wide sales and use tax 10 Exhibit B - Minutes of City Council meeting held May 7, 2002, reciting adoption of Ordinance No. 4389 11 Exhibit C - Proof of Publication of Ordinance No. 4389 in the Arkansas Democrat -Gazette on May 18, 2002 12 Exhibit D — Schedule of Bond Issuance Costs to be Paid at Closing 13 Form 8038-G and Proof of Mailing to Internal Revenue Service 14 Principal Documents Trust Indenture dated as of June 1, 2002, by and between the City and Simmons First Trust Company, N.A., as trustee (the "Trustee") 15 Tax Regulatory Agreement dated June 20, 2002, by and between the City and the Trustee L Continuing Disclosure Agreement dated June 20, 2002, by and • between the City and the Trustee 17 Copies of Bonds 18 Bond Purchase Agreement dated June 12, 2002, by and between the City and Stephens Inc., as underwriter (the "Underwriter") 19 Preliminary Official Statement 20 Official Statement 21 Opinions Approving Opinion of Bond Counsel 22 Supplemental Opinion of Bond Counsel 23 Opinion of City Attorney 24 10-36561.01 • TAB Miscellaneous Certificates of Arkansas Department of Finance and Administration and State Treasurer asto Sales and Use Taxes 25 Trustee's Certificate 26 Underwriter's Receipt 27 Certificate of Underwriter 28 Trustee's Receipt and Certificate as to Application of Funds 29 DTC Letter of Representation Standard & Poor's Rating Letter Form of Requisition • Transcripts delivered to: City of Fayetteville, Attn: Mr. Ted Webber (1 Bound; 1 CD Rom) Simmons First Trust Company, Attn: Ms. Glenda Dean (1 Bound) Stephens Inc., Attn: Mr. Dennis Hunt (1 Bound) Fayetteville City Attorney, Attn: Kit Williams, Esq. (1 Bound) Kutak Rock LLP (I Bound; I CD Rom) I 30 31 32 10-36561.01 rd $25,000,000 CITY OF FAYETTEVILLE, ARKANSAS SALES AND USE TAX CAPITAL IMPROVEMENT BONDS SERIES 2002 TRANSCRIPT OF PROCEEDINGS Dated as of June 1, 2002 Prepared By: KUTAK ROCK LLP 425 West Capitol, Suite 1100 Little Rock, Arkansas 72201 10-36561.01 L $25,000,000 CITY OF FAYETTEVILLE, ARKANSAS SALES AND USE TAX CAPITAL IMPROVEMENT BONDS SERIES 2002 CLOSING INDEX TAB Proceedings and Certificates Related to Election Certificate of City of Fayetteville, Arkansas (the "City") as to Election Matters Exhibit A - Ordinance No. 4327 adopted August 7, 2001, calling a special election and levying a (0.75%) city-wide sales and use tax Exhibit B - Minutes of City Council meeting held August 7, • 2001, reciting adoption of Ordinance No. 4327 3 Exhibit C - Proof of Publication of Ordinance No. 4327 in the Arkansas Democrat -Gazette on August 10, 2001 4 Exhibit D — Notice of Special Election and Proof of Publication in The Morning News of Northwest Arkansas on November 1, 2001 Exhibit E — Copy of Ballot for Special Election Exhibit F — Mayor's Proclamation of Election Results and Proof of Publication in the Northwest Arkansas Times on November 16, 2001 Certificate of Washington County Board of Election Commissioners Ascertaining and Declaring Results of Special Election held November 6, 2001 Proceedings and Certificates Related to Bond Issuance Closing Certificate and Request of the City 6 10-36561.01 Exhibit A - Ordinance No. 4389 adopted May 7, 2002, • authorizing issuance of the Bonds and pledging a (0.75%) city-wide sales and use tax 10 Exhibit B - Minutes of City Council meeting held May 7, 2002, reciting adoption of Ordinance No. 4389 11 Exhibit C - Proof of Publication of Ordinance No. 4389 in the Arkansas Democrat -Gazette on May 18, 2002 12 Exhibit D - Schedule of Bond Issuance Costs to be Paid at Closing 13 Form 8038-G and Proof of Mailing to Internal Revenue Service 14 Principal Documents Trust Indenture dated as of June 1, 2002, by and between the City and Simmons First Trust Company, N.A., as trustee (the "Trustee") 15 Tax Regulatory Agreement dated June 20, 2002, by and between the City and the Trustee 16 Continuing Disclosure Agreement dated June 20, 2002, by and • between the City and the Trustee 17 Copies of Bonds 18 Bond Purchase Agreement dated June 12, 2002, by and between the City and Stephens Inc., as underwriter (the "Underwriter") 19 Preliminary Official Statement 20 Official Statement 21 Opinions Approving Opinion of Bond Counsel 22 Supplemental Opinion of Bond Counsel 23 Opinion of.City Attorney 24 10-36561.01 • TAB Miscellaneous Certificates of Arkansas Department of Finance and Administration and State Treasurer as to Sales and Use Taxes 25 Trustee's Certificate 26 Underwriter's Receipt 27 Certificate of Underwriter 28 Trustee's Receipt and Certificate as to Application of Funds 29 DTC Letter of Representation • Standard & Poor's Rating Letter Form of Requisition Transcripts delivered to: City of Fayetteville, Attn: Mr. Ted Webber (1 Bound; 1 CD Rom) Simmons First Trust Company, Attn: Ms. Glenda Dean (1 Bound) Stephens Inc., Attn: Mr. Dennis Hunt (1 Bound) Fayetteville City Attorney, Attn: Kit Williams, Esq. (1 Bound) Kutak Rock LLP (1 Bound; 1 CD Rom) 31 32 10-36561.01 4 • CERTIFICATE OF CITY AS TO ELECTION MATTERS The undersigned Mayor and City Clerk of the City of Fayetteville, Arkansas, a duly organized municipality and political subdivision of the State of Arkansas (the "City"), do hereby certify and covenant as follows: I. The undersigned are the duly elected, qualified and acting Mayor and City Clerk of the City, and as such officials have in their possession or have access to the official books and corporate records of the City. This Certificate is executed and delivered in connection with the issuance of the City's $25,000,000 Sales and Use Tax Capital Improvement Bonds, Series 2002 (the "Bonds"). 2. Attached hereto as Exhibit A is a true, complete, and correct copy of Ordinance No. 4327 (the "Election Ordinance"), duly adopted by City Council of the City, at a regular meeting, open to the public, held August 7, 2001, pursuant to which there was submitted to the qualified electors of the City (i) the question of the levy of a three-quarter of one percent (0.75%) city-wide sales and use tax (the "Sales and Use Tax") under the authority of Arkansas Code Annotated (1998 Repl. & Supp. 2001) Sections 14-164-301 et seq., and (ii) the question of the issuance of the Bonds. Attached hereto as Exhibit B is a true, complete and correct copy of the minutes of a duly called regular meeting of the City Council, open to the public, held August 7, 2001, reciting the adoption of the Election Ordinance, as said minutes appear in the official records of the City; at the meeting a quorum was present and acted throughout; the Election Ordinance is in full force • and effect and has not been altered, amended, or repealed as of the date hereof. No petition or petitions to refer the Election Ordinance to the people under Amendment No. 7 to the Constitution of the State of Arkansas has been filed as of the date hereof and the City Council has not referred the Election Ordinance to the people for adoption or rejection. Attached hereto as Exhibit C is a true, complete, and correct copy of a publisher's affidavit showing publication of the Election Ordinance in the Arkansas Democrat -Gazette on August 10, 2001. 3. The meeting of the City Council referred to in paragraph 2 hereof was open to the public in compliance with the provisions of Section 25-19-106 of the Arkansas Code Annotated, as amended and supplemented. 4. The City has not adopted any by-laws or rules of procedure relating to the conduct of its meetings. 5. Regular meetings of the City Council are held on the first and third Tuesdays of each month. 6. In the City the time for filing a referendum petition is fixed at 31 days after the publication of local measures passed by the City Council of the City. 7. Attached hereto as Exhibit D is a true, complete and correct copy of the Notice of Special Election and a true, complete, and correct copy of a publisher's affidavit showing publication of the Notice of Special Election in The Morning News of Northwest Arkansas on • November 1, 2001. 10-36605.01 • 8. Attached hereto as Exhibit E is a true, complete and correct copy of the official ballot utilized in the Special Election. 9. Attached hereto as Exhibit F is a true, complete and correct copy of a Mayor's Proclamation of Election Results declaring the results of the Special Election and a true, complete, and correct copy of a publisher's affidavit showing publication of the Proclamation in the Northwest Arkansas Times on November 16, 2001. IN WITNESS WHEREOF, the undersigned have hereunto set their hands this day of June, 2002. CITY OF FAYETTEVILLE, ARKANSAS By: -00/7 egl,rl/�/ eather Woodruff, City erk • (SEAL) • 10-36605.01 2 I RUL , Leo ORDINANCE NO. 4327 C0 P "N 4 „ 8 �Hn. n ✓ //LA .0 AN ORDINANCE CALLING AN ELECTION ON THE QUE3+1ONi C)l, DFJE, ISSUANCE OF NOT TO EXCEED ONE HUNDRED TWENTY' PTY (I MILLION DOLLARS ($125,000,000) OF CAPITAL IMPROVEMENT BONDS'- BY THE CITY FOR THE PURPOSE OF FINANCING ALL OR A PORTION OF THE COSTS OF THE ACQUISITION, CONSTRUCTION, RECONSTRUCTION, EXTENDING, IMPROVING AND EQUIPPING OF WASTEWATER TREATMENT PLANTS, SEWERAGE, AND RELATED FACILITIES; LEVYING A SPECIAL LOCAL SALES AND USE TAX AT THE RATE OF THREE-QUARTERS OF ONE PERCENT (0.75%) WITHIN THE CITY TO BE PLEDGED TO THE PAYMENT OF THE BONDS, WHICH LEVY SHALL CEASE UPON RETIREMENT OF THE BONDS; CALLING AND SETTING A DATE FOR A SPECIAL ELECTION ON THE QUESTION OF THE ISSUANCE OF THE BONDS; DEFINING THE TERM "SINGLE TRANSACTION"; AND PRESCRIBING OTHER MATTERS PERTAINING THERETO. WHEREAS, the City Council of the City of Fayetteville, Arkansas recognizes and determines there is a great and pressing need to substantially increase the City's wastewater treatment capacity; and WHEREAS, if the citizens of Fayetteville elect to use a special citywide sale tax to finance this capital improvement, many millions of dollars of financing expense would be saved in comparison with financing this improvement by a large increase in sewer rates for the customers of the Fayetteville wastewater system; and WHEREAS, the City Council of the City of Fayetteville, Arkansas has determined that there is a great need for additional sources of revenue to finance capital improvements to meet the needs of the residents of the City; and WHEREAS, Title 14, Chapter 164, Subchapter 3 of the Arkansas Code of 1987 Annotated (the "Local Government Bond Act of 1985") authorizes the issuance of capital improvement bonds by cities, which bonds may be secured by the pledge of the receipts of the special citywide sales and use tax prescribed by the Local Government Bond Act of 1985; and WHEREAS, said special citywide sales and use tax is to be levied and collected only on the first $2,500 of each single transaction; and WHEREAS, an existing citywide sales and use tax is presently being levied • pursuant to the Local Government Bond Act at the rate of One Percent (1%), which levy • • Ord. No. 4327 rexpires on March 31, 2002; and WHEREAS, if approved by the electors of Fayetteville the City Council of Fayetteville, Arkansas has determined to issue its capital improvement bonds in principal amount not to exceed One Hundred Twenty -Five Million Dollars ($125,000,000) for the purpose of financing all or a portion of the costs of the acquisition, construction, reconstruction, extending, improving, and equipping of wastewater treatment plants, sewerage and related facilities, which Bonds are to be secured by the pledge of all of the receipts of a three-quarters of one percent (0.75%) special citywide sales and use tax, as authorized by the Local Government Bond Act; and WHEREAS, the purpose of this Ordinance is to call a special election on the issuance of the Bonds by the City of Fayetteville, and to define the term "single transaction"; NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Fayetteville, Arkansas: Section 1. That under the authority of the Local Government Bond Act and subject to the approval by the electors of the City of Fayetteville as provided in Section 3 below, there is hereby authorized the issuance of the City's capital improvement bonds in the aggregate principal amount of not to exceed One Hundred Twenty -Five Million Dollars ($125,000,000) (the "Bonds") for the purpose of financing all or a portion of the costs of acquiring, constructing, reconstructing, extending, improving and equipping wastewater treatment plants, sewerage and related facilities (the "Project"). If the issuance of the Bonds is approved by the electors of the City, the Bonds may thereafter be issued in one or more series from time to time in an aggregate principal amount not to exceed the principal amount approved by the City's electors. If approved by the electors of the City and issued, the Bonds shall be secured by a pledge of and a lien upon all of the receipts of a three-quarters of one percent (0.75%) special citywide sales and use tax (the "Sales and Use Tax"), as authorized by the Local Government Bond Act. Section 2. That under the authority of the Local Government Bond Act and subject to approval by the electors of the City as provided in Section 3 below, there is hereby levied the Sales and Use Tax at the rate of three-quarters of one percent (0.75%) on the gross receipts from the sale at retail within the City of all items which are subject to the Arkansas Gross Receipts Act of 1941, as amended (Arkansas Code of 1987 Annotated §26-52-101 et seq.), and an excise (or use) tax on the storage, use, distribution or other consumption within the City of tangible personal property purchased, leased • or rented from any retailer outside the State of Arkansas after the effective date of the Sales and Use Tax for storage, use, distribution or other consumption in the City at the Ord. 4327 • S • rate of three-quarters of one percent (0.75%) on the sale price of the property or, in the case of leases or rentals, on the lease or rental price, the rate of the use tax to correspond to the rate of the sale tax. The use tax portion of the Sales and Use Tax shall be collected according to the terms of the Arkansas Compensating Tax Act of 1949, as amended (Arkansas Code of 1987 Annotated §26-53-101 et seq.). The Sales and Use Tax shall be levied and collected only on the first $2,500 of each "single transaction" (as defined in Section 9 hereof). The levy and collection of the Sales and Use Tax shall commence on April 1, 2002 and shall cease upon retirement of the Bonds. Section 3. That there be, and there is hereby called, a special election to be held on Tuesday, November 6, 2001, at which election there shall be submitted to the electors of the City the question of the issuance of the Bonds. Section 4. That the question shall be placed on the ballot for the special election in substantially the following form: There is submitted to the qualified electors of the City of Fayetteville, Arkansas, the question of the issuance of capital improvement bonds in principal amount not to exceed One Hundred Twenty -Five Million Dollars [$125,000,000] (the "Bonds") pursuant to Title 14, Chapter 164, Subchapter 3 of the Arkansas Code of 1987 Annotated (the "Local Government Bond Act of 1985") for the purpose of financing all or a portion of the costs of the acquisition, construction, reconstruction, extending, improving and equipping of the Wastewater System Improvement Project which encompasses building and equipping a second wastewater treatment plant, modifying, extending and improving the sewer collection system, reconstruction and improving the current wastewater treatment plant, making land and equipment purchases, procuring construction and professional services, obtaining regulatory approvals and permits, and doing all other necessary things to increase and improve the City of Fayetteville's wastewater treatment capacity and related facilities. If the issuance of the Bonds is approved, the Bonds shall be secured by a pledge of and lien upon all of the receipts of a special citywide sales and use tax at the rate of three-quarters of one percent (0.75%) levied pursuant to the Local Government Bond Act (the "Sales and Use Tax"). If the issuance of the Bonds is approved, the levy and collection of the Sales and Use Tax shall commence on April 1, 2002 and shall cease upon retirement of the Bonds. • • • Ord. 4327 • Vote on the question by placing an "X" in one of the squares following the question, either for or against: FOR the issuance of Bonds in principal amount not to exceed One Hundred Twenty -Five Million Dollars ($125,000,000) for the purpose of financing all or a portion of the costs of acquiring, constructing, reconstructing, extending, improving and equipping wastewater treatment plants, sewerage and other related improvements ............... ❑ AGAINST the issuance of Bonds in principal amount not to exceed One Hundred Twenty -Five Million Dollars [$125,000,000] for the purpose of financing all or a portion of the costs of acquiring, constructing, reconstructing, extending, improving and equipping wastewater treatment plants, sewerage and other related improvements ............... ❑ Section 5. That the election shall be held and conducted and the vote canvassed and the results declared under the law and in the manner now provided for Arkansas municipal elections unless otherwise provided in the Local Government Bond Act, and only qualified voters of the City shall have the right to vote at the election. The City Clerk is hereby directed to give notice of the special election by one advertisement in • the Northwest Arkansas Times, the publication to be not less than ten (10) days prior to the date of the election. Section 6. That a copy of this Ordinance shall be given to the Washington County Board of Election Commissioners so that the necessary election officials and supplies may be provided. A certified copy of this Ordinance and a map clearly showing the boundaries of the City shall also be provided to the Director of the Department of Finance and Administration and to the Treasurer of the State of Arkansas as soon as practical. Section 7. That the results of the special election shall be proclaimed by the Mayor, and his proclamation shall be published one time in the Northwest Arkansas Times. The proclamation shall advise that the results as proclaimed shall be conclusive unless attacked in the Circuit Court of Washington County within thirty (30) days after the date of publication of the proclamation. Section 8. That the Mayor and the City Clerk, for and on behalf of the City, be, and they hereby are authorized and directed to do any and all things necessary to call and hold the special election as herein provided and, if the levy of the issuance of the Bonds is approved by the electors, to cause the Sales and Use Tax to be collected in • r 0 • Ord. 4327 . accordance with the Local Government Bond Act, and to perform all acts of whatever nature necessary to carry out the authority conferred by this Ordinance. Section 9. That, for purposes of the Sales and Use Tax, the term "single transaction" is defined according to the nature of the goods purchased as follows: A. When two or more devices in which, upon which or by which any person or property is, or may be, transported or drawn, including, but not limited to, on -road vehicles, off -road vehicles or farm vehicles, whether required to be licensed or not, airplanes, water vessels, motor vehicles, non -motorized vehicles and mobile homes, are sold to a person by a seller, each individual unit, whether part of a "fleet" sale or not, shall be treated as a single transaction for the purposes of the Sales and Use Tax; B. Charges for utility services which are subject to the Sales and Use Tax, and which are furnished on a continuous service basis, whether such services are paid for daily, weekly, monthly or annually, shall be computed in daily increments, and each such daily charge increment shall be considered to be a single transaction for the purposes of the Sales and • Use Tax; C. For sales of building materials and supplies to contractors, builders or other persons, a single transaction, for the purposes of the Sales and Use Tax, shall be deemed to be any single sale which is reflected on a single invoice, receipt or statement, on which an aggregate sales (or use) tax figure has been reported and remitted to the State of Arkansas; D. When two or more items of major household appliances, commercial appliances, major equipment or machinery are sold, each individual unit shall be treated as a single transaction for the purposes of the Sales and Use Tax; and E. For groceries, drug items, dry goods and other tangible personal property and/or services not expressly covered in this Section 9, a single transaction, for the purposes of the Sales and Use Tax, shall be deemed to be any single sale which is reflected on a single invoice, receipt or statement, on which an aggregate sales tax figure has been reported and remitted to the State of Arkansas. • 0 • Ord. 4327 • Section 10. That Kutak Rock LLP is hereby engaged as Bond Counsel and Stephens Inc. is hereby engaged as Underwriter or Financial Advisor, as appropriate, with respect to the issuance of the Bonds. The fees and expenses of Bond Counsel and the Underwriter or Financial Advisor shall be a cost of issuance of the Bonds to be paid with Bond proceeds, if allowed. Section 11. That all ordinances and parts thereof in conflict herewith are hereby repealed to the extent of such conflict. PASSED AND APPROVED this 7th day of August, 2001. APPROVED: By: 44( 42224 - DAN COODY, Mayor So`er By: He4fheerr Woo+oodruff, City Clerk (SEAL) tJ CERTIFICATE CERTIFICATE OF RECORD State of Arkansas City of Fayettos I, Heather Woodruff, City Clerk/Treasurer for the City of Fayetteville, do hereby certify that the foregoing instrument is a true ar:d correct copy of the original filed in my office on the 7 ...__day of __Wo hand and sea his?dLd.""•�-�' earner Wootlruff, Giry Clerk/iraaaur The undersigned, City Clerk of the City of Fayetteville, Arkansas, hereby certifies that the foregoing is a true and perfect copy of an Ordinance adopted at a regular meeting of the City Council of the City of Fayetteville, Arkansas, held in Room 219 of the City Administration Building at 6:30 p.m. on August 7, 2001. DATED: August 8, 2001 CI WoodruffCiityClerk 6 • MINUTES OF A MEETING OF THE CITY COUNCIL AUGUST 7, 2001 A meeting of the Fayetteville City Council was held on August 7, 2001 at 6:30 p.m. in Room 219 of the City Administration Building located at 113 West Mountain Street, Fayetteville, Arkansas. PRESENT: Mayor Coody, Aldermen Santos, Jordan, Reynolds, Thiel, Young, Zurcher, Trumbo, and Davis, Interim City Attorney Kit Williams, Deputy City Clerk Gina Roberts, Staff, Press, Audience. Mayor Coody congratulated city employees; Scott Caldwell, John Goddard, and Clyde Randall for their Special Achievement in GIS Award. Mayor Coody stated they were putting the finishing touches on an agreement with the Boys'and Girls Club, which will be presented to the City at the next Council meeting. Mike Hill, Boys and Girls Club, stated they had been working with the City Staff on an agreement and that they should be presenting it at their next meeting.' AUDIT COMMITTEE REPORT • Mr. Marty Bryan, Chairman of the Audit Committee, stated the Audit Committee had been established October 3, 2000, its purpose was to serve as an advisory capacity between the City Council, Independent Auditor, Internal Auditor, and the Management, audit internal controls and compliance. The committee was comprised of four people, one city council member and three private citizens. Their responsibilities were to serve on the review committee to select the external auditor, review the city's annual financial status, including any certification or report rendered by the independent auditor, review the performance of the independent auditors and review financial and accounting personnel adequacy and the effectiveness of the accounting and financial controls of the city and to advise the city council on any issues reported by internal audit staff The results of the 2000 audit was an unqualified clean opinion. In accounting, that was excellent. There were no disagreements with management on financial reporting matters and no scope limitations related to audit work. There was open and affective communication with management. We received a certificate for excellence in financial reporting and budgeting for the twelfth consecutive year from the GFOA (Government Finance Officers Association). CONSENT AGENDA APPROVAL OF THE MINUTES Approval of the minutes from the July 17, 2001 meeting. • • City Council Minutes August 7, 2001 Page 2 RAVEN TRAIL AND GULLEY PARK TRAIL: A resolution awarding the construction contract for Raven Trail and Gulley Park Trail to Jerry D. Sweetser in the amount of $190,605.50 and approving funding for the project contingency and material testing for the projects. REMO VED FROM THE CONSENT AGENDA. OLD MISSOURI: A resolution approving amendment number one, in an amount not to exceed $24,947 to the engineering services contract with Garver Engineers for additional conceptual designs and cost estimates for improvements to Old Missouri Road from the intersection of Rolling Hills north to Mud Creek Bridge. RESOLUTION 109-01 AS RECORDED IN THE OFFICE OF THE CITY CLERK. GREGG STREET: A resolution agreeing to pay for right-of-way and the movement of utilities, if the Highway Department widens Gregg Street from Township to the Bypass. RESOLUTION 110-01 AS RECORDED IN THE OFFICE OF THE CITY CLERK. • TRACKING SYSTEMS: A resolution certifying local government endorsement of Tracking Systems to participate in the Advantage Arkansas Program also known as the Arkansas Enterprise Zone Program. RESOL UTION 111-01 AS RECORDED IN THE OFFICE OF THE CITY CLERK. CARGO VAN: A resolution approving the purchase of a 2001 Ford E-150 Cargo Van for the sum of $21,164.00 from Ron Blackwell Ford. This unit will be used by the Police Department. RESOLUTION 112-01 AS RECORDED IN THE OFFICE OF THE CITY CLERK. Alderman Davis moved to approve the Consent Agenda. Alderman Santos seconded the motion. Upon roll call the motion carried unanimously. RAVEN TRAIL AND GULLEY PARK TRAIL: A resolution awarding the construction contract for Raven Trail and Gulley Park Trail to Jerry D. Sweetser in the amount of $190,605.50 and approving funding for the project contingency and material testing for the projects. Mr. Greg Boettcher, Public Works Director, stated the Arkansas Highway and Transportation Department awarded to the city a sum of $750,000 for multi -use trails in Fayetteville. This grant is eighty -percent of the eligible project costs, with the cityproviding a sum of $187,500 to go with that. • The Raven and Gulley Trails which they were considering tonight constitute some $223,196, which was about twenty-three percent of their $937,500 total project funding. Joyce Boulevard, East Mud • City Council Minutes August 7, 2001 Page 3 Creek and West Mud Creek(CMN Property) are other trails which have been designed. They have been submitted to the Arkansas Highway and Transportation Department. They were expecting approval to bid those in September. They were moving ahead on these projects. The current funding that they have of $937,500 is not expected to be adequate to do all five trails. What they were planning to do was the West Mud Creek Trail which will be segmented into bid units, so they could tailor the last piece of the project to use all of the enhancement funds. There will be additional funding cycles which they hoped to apply for and move forward. At this point, Paul Libertini in the Engineering Division had been a key individual in moving this ahead and designing for the five trails. As it moved forward, the Trails Coordinator would pick up and work with Engineering on those. There was a map showing where the trails are. Alderman Thiel stated it was wonderful that they had been able to obtain funding. As alderman for Ward One, she knew they were working on a Walker Park Trail. Mr. Boettcher stated there would be future funding cycles. In the case of these funds that have been awarded they were project specific and must be used for the five trails the Highway Department identified. • Alderman Davis stated they had purchased land for the Prairie Creek Trail which went from Sixth Street to the Walton Art Center area. The intent at the start of this project was to find land that the city owned, which happened to be in Ward Three. Mayor Coody stated they had received notice today that the Transportation Enhancement Funds were becoming available. They were going to start applying for more grant money. Alderman Davis thanked Chuck Rutherford for all his work on putting this together. Alderman Davis moved to approve the item. Alderman Thiel seconded the motion. Upon roll call the motion carried unanimously. RESOLUTION 113-01 AS RECORDED IN THE OFFICE OF THE CITY CLERK. OLD BUSINESS SPECIAL SALES TAX ELECTION: An ordinance calling a special election to decide whether or not to approve a three -fourths cent ('/40) sales and use tax to fund the issuance of not to exceed one hundred twenty-five million dollars of Capital Improvement Bonds to finance all or a portion of the acquisition, construction, reconstruction, extending, improving and equipping of wastewater treatment plants, sewerage and related facilities. The ordinance was left on the second reading. iAlderman Trumbo stated that they had a number of public hearings. Bringing this forward would City Council Minutes • August 7, 2001 Page 4 allow the public the right to vote on whether or not to go forward with the proposed new wastewater treatment plant, retrofitting their existing plant, and improving their collection system. This was not just about adding capacity, it was also about clean water. This was a lot of money. They had a number of public hearings and had talked at length about the three percent revolving loan, which was available to the city. It was unprecedented in terms of the low interest cost. They had talked about the fact that if this was defeated that they still have to do fifty million dollars of improvements to their existing plant which would mean doubling sewer rates for existing rate payers. They had looked at all the different financing mechanisms, the interest costs and the amortization, the schematics, the plans. He just thought it was time to move forward and to let the general public vote on this proposal on floating a bond and to do what was right for Fayetteville. There were those who wanted to defeat this to shut down growth in Fayetteville. That was not what this was about. It was adding capacity, but it was also increasing the technology of their existing facility and adding more capacity. It was an ongoing process of fixing up their collection system and it would allow them to not take slug all the way across Fayetteville. Mayor Coody stated they had been given an administrative order back in 1989 from the EPA that put them on notice that they had to improve their sewer system. They were under this executive order until 1995 when they started going through the process of starting the engineering of a new system • and rebuilding their antiquated infrastructure and building a new plant on the west side of town. Once they saw us making serious headway, they lifted the order. They did not have a choice about building a sewer plant. The plant was just one quarter of the project. The entire sewer system was what they were having to rebuild. They did not have an option. The election was basically going to be asking the question of how they would pay for it. They were giving the voters a chance to approve the three-quarter cent sales and use tax. He personally felt that when they looked at the money they would be saving by doing this, they would save twenty-six million dollars in interest. They would also pay for it in half of the time, ten years verses twenty. If the voters turned down a three-quarter cent sales tax, they would be locked into having to find another funding mechanism to rebuild the system with. The only other option that could be used as collateral for this debt would be an increase in sewer rates. Sewer rates and sales tax were the two most predictable incomes the city has. If they did not have the sales tax, they will have to have a substantial increase in sewer rates. That would narrow their pool on the number of people who would be paying for it. They had to let people know it was not a question of if they were going to get a new system, the question was what mechanism of funding will they chose to pay for it. Alderman Trumbo stated they were over taxing Fayetteville. They were paying eight and one -eight percent city tax. One penny of that was for the HMR, One for Parks, one general fund and one for capitol improvements. He stated the library tax would sunset and this tax would pickup. The people voted and said that they wanted the Town Center, the Library, and the two mills for the Senior Center added to the property taxes. They were over taxed, but there were city services and needs they were having to make democratic decisions on. • • City Council Minutes August 7, 2001 Page 5 Alderman Young moved to suspend the rules and go to the third and final reading. Alderman Davis seconded the motion. Upon roll call the motion carried unanimously. Mr. Williams read the ordinance for the third and final time. Alderman Young stated hotels and motels were collecting 12.125%. Restaurants were collecting 10.125%, every one else was collecting 8.125%. In response to questions from Alderman Zurcher, Mr. Steve Davis stated there were approximately 29,000 sewer system customers, which included Fayetteville, Greenland, Farmington and Johnson. Alderman Reynolds stated there were 2,199 customers outside the City of Fayetteville. Mr. Davis stated there was a single connection to Elkins. They had one customer, which was the city of Elkins. They did not have any control over how many connections that they had. They did not do anything past that one connection with Elkins. It was based on volume. • Alderman Trumbo stated he had heard some people say why didn't they just shut off the communities that were not in Fayetteville and let them build their own plant. He asked if they had • long standing contracts with those municipalities for service. Mr. Davis stated that was correct. The closest contract that they had would expire in 2008. Alderman Zurcher stated it would be unfair to charge just the rate payers in Fayetteville to pay for this thing. At the same time to completely rely on a sales tax wasn't fair either. He asked if the communities that did not have their own sewer plants could they pitch in a little more. Can the industries pitch in a little more. Could they not raise them. He would like to look more at a package than just one thing that they were going to vote on. Mayor Coody stated about five years from now, they would have to have a relative small rate increase on their sewer fees. They were going to do everything that they could to come in under budget on this project. They will have to increase sewer rates five years from now once the plant goes on line. They will have to have the money to operate. They will see an increase in there sewer rates in the year 2005 or 2006. That would be the first rate increase in about nine years. To do a package deal to use different mechanisms to fund this might complicate their bond issue. Mr. Hunt stated that they needed to keep in mind that the revolving loan fund only allowed the one sales tax that they were talking about that they could pay off early. If they decided to combine with anything other than the one sales tax they would not be able to pay off as early with the other revenues. That was one of the reasons that they felt that from the perspective of participating in the • Revolving Loan Fund and maximizing their ability to reduce their interest expends that it made sense for them to use the sales tax alone in this case. Only this specific sales tax, there were other sales tax City Council Minutes August 7, 2001 Page 6 that the revolving loan fund would not allow them to do. The statute specifically state that it was the only thing they could use this sales tax for was to pay off the debt. The State was not going to say they could not use the sales tax to do that, so they allowed them to do early redemption or paying it off early. That was one of the key advantages of reducing their interest because they had the money coming in. From the current numbers, it looks like they would be able to pay it off in 2015. With a Revenue Bond issue they would be talking about going out to 2025. That was where the twenty-six million dollars in additional interest expenses would come in. It would be a slightly higher rate, plus they could not pay off early. If they did not use the Revolving Loan method and went out into the open market then they would be talking about nearly fifty million dollars in additional interest. In response to questions, he stated with the Revolving Loan there would be a ten year call protection. After ten years they could use any resource to help pay down the loan, but they would still have the ten year period that they could not make any redemptions. Mayor Coody stated he had seen in the paper where they were going to have an election on November 20 for Asa Hutchinson's position. Would it be a mistake to move the election from November 6 to November 20. . Mr. Wilburn stated the statute stated "general or special election". It really did not matter. Mayor Coody asked if it would affect their timing? Mr. Wilburn stated they could push it back that far. Alderman Young stated they did not know the exact date of the election. Mr. William stated this was a one hundred and twenty-five million dollar bond issue. If they changed the date of the election they might present an opening for someone to challenge this. They had worked very hard to make sure that this particular ordinance was very legal and constitutional and covered all the bases. He would hate for something which represented such a tiny amount of the bond issue to endanger a potential bond issue. He stated they needed to chose a date tonight. If they wanted to chose November 20, then they could amend Section Three. They could move to reconsider this amendment at their next council meeting. They could not come back anytime they wanted to amend this ordinance without leaving opening for someone to challenge this. Mayor Coody stated the money to him was a small factor in this. One of the things he had heard quite often was that the public felt that they had special elections in order to time it when people were out of town and only the interested people would show up. It would not hurt to make the extra effort to try and get the public to understand they wanted as many people as possible to come to this. • Alderman Young stated November 20 was not as good a date as November 6. Have an election just City Council Minutes August 7, 2001 Page 7 before Thanksgiving when a lot of people were out of town. Alderman Zurcher moved to table the ordinance. In response to questions, Mr. Williams stated the next item if it passed would postpone any ordinance for ninety days. That would get them outside time frame. Anytime they were dealing with a large bond issue like this they needed to be as clean as possible and to follow the law exactly and not through any new legal changes. They did not want to push the envelope and be creative when it came to something like this. His advice to them was to go as straight as possible. They did not want to give any room for challenges. The more they played around with this the more openings could happen. They had studied the issue very carefully and had come up with this ordinance after a lot of work. This ordinance right now as it was written, they knew what would it do. If they started changing things on the fly he could not tell them what it would do. When they were dealing with one hundred and twenty-five millions dollars they did not want to learn after the fact that they had made a mistake and that someone could claim that they were confused on what they were voting on. Or that they confused the voters by changing the dates or putting a date in that was not certain and that was set by someone else. They did not want to do anything like that. They wanted it to be clear to the voters exactly what the issue was. Alderman Thiel asked Mr. Wilburn if he was in total agreement with Mr. Williams. Mr. Wilburn stated he agreed with Mr. Williams. They needed to go straight down the line with what had been proven and up held. Alderman Zurcher again moved to table the item to the next meeting. The motion failed from lack of a second. Alderman Jordan stated the three-quarter sales tax was the best way that they could go with that. He felt sales taxes were regressive, but in this case he thought the alternative to doubling the sewer rate, that the three-quarter sales tax was the better way to go. He had always been in favor of putting taxes before a vote of the people. This was no exception. If the people voted this down, do not expect him to support doubling people's sewer rates. Mr. Geary Lowery, an area resident, stated he would like to inform them of a rumor that the proposed west side treatment plant already needed expansion to include other communities that lie west of Fayetteville and other communities wanting on line to the Fayetteville Sewer Plant. At another meeting it had been proposed that a park could go around the new sewer plant. At that time the Mayor stated they might need that land for expansion. The number of people using our sewer out side of city limits was one large main tap to Elkins which served them at the current rate of four hundred and seventy-nine sewer connections. Who they were and what they were, the city did not know. They had sixty three commercial taps in Farmington. They had twenty two commercial and • City Council Minutes August 7, 2001 Page 8 industrial taps in Greenland. In the growth area they had one large major industrial tap. They had twelve hundred and seventy five residential taps in Farmington, three hundred and eleven in Greenland, four hundred and seventy nine in Elkins and one hundred and fifty eight in Johnson and twenty two in the growth area. They currently had twenty four other from Farmington and twenty one other Greenland, and one other for the city of Elkins. He had been trying to get some figures from OMI. Everyone seemed concerned about the infill and age of our sewer lines. They had a lot of problems. They needed to improve their system. He was upset at the cost and that it was only going to be for Fayetteville. It was for Fayetteville and the other communities surrounding us. He was tired of this city taking a hit. There were people within city limits that did not have sewer service who would like to have it. Before they expanded anymore or any more sewer taps were given to anyone else, they needed to tap into their own constituents. It was the duty of the city to service all of the citizens. In the last five years this city has had revenue profits in excess of five million dollars a year in revenue capital improvement money for the sewer system. Why did they need to increase their rates in the next five years, if they had five to nine million dollars available for sewer improvements. Mr. Jeff Erf, an area resident, stated he would like to pin point the numbers that they were talking about for the sewer treatment plant. He asked that they correct him ifhe was wrong. So far they had • spent about seven million dollars already towards this project for land, engineering and other related costs. The engineer was estimating that the current cost for the plant and improvements to the Noland Plant and other associated costs was one hundred and twenty million dollars. Mr. Greg Boettcher stated that was correct. Mr. Erf asked if that included construction cost, engineering, legal and administrative costs? Mr. Boettcher stated it also included some contingencies on construction. Mr. Erf stated that the amount of bonds that would need to be sold was about a hundred and fifteen million and five of that came from a bond issue that had been approved last year and carried over to this year for a total of one hundred and twenty million dollars of money that was available for capital costs. The interest on the hundred and fifteen million dollars was roughly twenty and a half million dollars. Mayor Coody stated that was correct. Mr. Erf stated if he tallied up the seven million they had already spent, the one hundred and twenty million construction cost and related expenses and the interest on all of that, he came up with one hundred and forty seven million and one half dollars. He asked if that seemed right for total project cost or the amount of tax payer dollars which would be spent on the project as estimated today. • In response to comments from Mr. Hunt, Mr. Erf stated the total project cost would be nearly one hundred and fifty million dollars. The ballot was asking the voters to approve a bond issue up to one • City Council Minutes August 7, 2001 Page 9 hundred and twenty five million dollars. Another thing that concerned him was if the voters voted against this bond issue, what did that mean? Mayor Coody replied they could raise sewer rates. If they did not correct their system and get it in line with what the EPA required then not only could they shut them down, but they could fine them twenty five thousand dollars per occurrence. Mr. Erf stated he did not believe the EPA was requiring that the city of Fayetteville provide capacity for eighty five thousand people. He questioned if the voters turned this down in November did the rates have to go up. He thought they needed to put that on the ballot. Mayor Coody stated he was exactly right, but whether the legal department agreed with him or not was another question. Mr. Erf stated he had problem with the choice of"being build " or "build it". They were only talking about how to pay for it. That concerned him. If they were going to see this as a mandate, then that meant they were voting for a rate increase. • Mayor Coody stated they did not want to be in the position of having the public think that if they voted down the three-quarter cent and then they skyrocketed the sewer rates. The public will then say that the city was shoving the rate increase down their throat so that they could get what they want. They kept talking about the need for this project and the fact that it was really the question of how they were going to pay for it. They were trying to make it as clear as they could. They had to let the public know what they were dealing with. Even if not another person moved into town, they had to rebuild their system. Right now they were pumping all their waste from the west side of town through nine lift stations, over the ridge, and down to the Paul Noland Plant and then they were sending it right over the mountain again to the Illinois River. They were trying to do as much as they could with the public. There was one lift station where the sewage crosses the ridge three times to get treated once. They would be able to eliminate nine lift stations and all the required industrial and electrical pumping that went with that. It should decrease their operating cost. Mr. Erf stated it was his understanding that after the new plant was on line and the old plant was improved and all the pipes were put in that they were talking about, an increase in twenty-eight percent for operation and management of the new system. Any saving from the removal of the lift stations was eliminated. Mr. Boettcher stated that grade was calculated on 2005. It was predicted for four years ahead rather than today's dollars. • Mr. Erf stated if the voters were to approve this bond issue, it permitted them to go up to one hundred and twenty five million dollars in bonds. Could any of that be used for maintenance or • City Council Minutes August 7, 2001 Page 10 operation expenses? Mayor Coody replied they could not, it was for the building and construction. He hoped the public realized that those were the choices. This project started ten years ago. It was time they did something. Doing nothing was simply not an option. Mr. Erf asked if there would be an ordinance in place regarding impact fees before the election. Mayor Coody replied things did not move that fast around here. Mr. Earnest stated impact fees would still be in discussion at the time of the election. Alderman Thiel stated it was her understanding that they could use the impact fees for sewer capacity needs and not to pay the bonds off. It was not going to make her shy away from impact fees, just because they could not be used directly towards this. Alderman Zurcher stated he was going to have trouble supporting this issue if he did not know before hand that the developers were going to pay their fair share by using impact fees. • Alderman Thiel stated the people who had lived here for a long time had paid their dues. Some of the affect of.the growth needed to be paid for by the people that were creating the need. Alderman Zurcher moved to amend Section Three from "November 6,2001", to "this election would fall on the same day that would be set by Governor Huckabee for the election for the third congressional district seat". Alderman Davis stated their bond council agreed with Mr. Williams. Since both of them felt the same way, they were probably correct. The motion died from lack of a second. Mayor Coody asked shall this ordinance pass. Upon roll call the ordinance passed unanimously. ORDINANCE 4327 AS RECORDED IN THE OFFICE OF THE CITY CLERK. REFERENDUM PETITIONS: An ordinance amending Section 36.15 of the Code of Fayetteville to change the number of days allowed for referendum petitions to be filed from thirty-one days to ninety days. The ordinance was left on the first reading. • Alderman Young moved to suspend the rules and move to the second reading. Alderman Jordan seconded the motion. Upon roll the motion carried unanimously. • City Council Minutes August 7, 2001 Page 11 Mr. Williams read the ordinance for the second time. Mr. Hunt stated they had brought bond issues to them in the past and that it was important that they take all three readings in one evening because investors had indicated they would buy the bonds, but they did not want to be delayed over a ninety -day period. The market could change dramatically during that period of time. There would become a resistance on the part of the investors to purchase bonds. He thought they needed to be concerned that Arkansas was one of very few States that had the thirty -day referendum requirement currently for bond issues. This was a concern if this was an interest rate environment where interest rates were creeping up. If they went to the ninety -days, he thought they would be compounding that problem significantly. hi terms of financing a bond issue, they should seriously consider the implications it would have. Someone was going to buy the bonds, the city was going to be the one taking the interest rate risk. They were going to want a higher interest rate, because they were talking about such an extended period of time. They were not only talking about ninety -days, they would be talking about hundred and ten days before the ordinance was completed. Alderman Zurcher asked if an emergency clause would work? • Mr. Williams stated they would have to be very careful with an emergency clause. Generally they had to be for peace and safety as opposed to money. When they were dealing with large bond issues, that made it a target. If they did not have a good reason to have an emergency clause, then that was another way that they could be challenged. That was why they did not have an emergency clause here. Mr. Wilburn stated even with the emergency clause they would still wait thirty -days. If the ordinance passed they would wait ninety -days. The supreme court has cracked down on the use of the emergency clause. People were putting them on every thing. For them to be comfortable to close a multi -million dollar bond issue they would wait the thirty or ninety -days. If the ordinance was not validly adopted, it was his opinion on the line. Mayor Coody stated he was concerned about extending this to ninety -days because they already had initiated referendum on the books. Anyone at anytime can put something on a ballot to be voted on without having to do it in thirty-one days. They could spend up to a year and a half to get something on a ballot. Alderman Young stated he did not think that was correct. He thought they had sixty or ninety -days. • Mr. Williams stated if someone wanted something on the ballot they could go through the initiated ballot process. He was not sure when they could start collecting the petitions, but they would have • City Council Minutes August 7, 2001 Page 12 time to get very organized and have their people ready to go out. If they had an issue they were concerned about, they could get their group together and get organized. They would have plenty of lead time to get on the general election ballot. Mayor Coody stated that within the last ten years there has only been two ordinance that have been questioned with a petition. They had passed over forty ordinance this year alone. Alderman Thiel asked if they would consider forty-five days. In responses to suggestions from Aldermen, Mr. Williams stated Amendment 7, and stated they needed to pick a date and that was when they took affect or the deadline for the referendum. The City Council was not given the right to fine tune it as they went along, ordinance by ordinance. The City Council had to chose a time or if they did not chose a time, then it was ninety -days. He could find nothing in Amendment 7 which would allow a city council to make exceptions for ordinances which were going to be challenged. Amendment 7 was part of their constitution. They had to fall within that framework. They could not go outside either the statutory or the constitutional law. Mayor Coody stated by using parliamentary procedure they had the option to use a motion to • reconsider. Mr. Williams stated there were parliamentary ways that they could postpone the affect date of an ordinance. Normally that was not a good thing to do in a tax sort of issue. A lot of these have not been tested in court. But it was a potential possible way it could be done. Alderman Zurcher stated that defeated the purpose of allowing citizens to get something on a ballot. What they.were doing was not always the best decision. This would give people the chance to petition the government to put it to a vote. That was different than us allowing it. This would allow them the time to do, because we would not do it. It was not because they agreed with us. It was giving away a little bit of their power to the people and who wanted to give up power. This made him want to almost want to vote wrong so that he would be in the majority on these things so that he could bring it up later. But he was not going to. Alderman Jordan did not believe thirty-one days was long enough. Alderman Davis stated usually it was over something controversial and they were already getting set up. He did not think that thirty-one days was a problem. Usually very few things were done in three readings. They would have some warning ahead of time that this could be, a problem. • Alderman Trumbo moved to suspend the rules and go to the third and final reading. Alderman Thiel seconded the motion. Upon roll call the motion carried unanimously. City Council Minutes August 7, 2001 Page 13 Mr. Williams read the ordinance for the third and final time. Ms. Paula Marioni, an area resident, stated she had worked on an effort to save Camel! Hall. They had gotten four thousand signatures in thirty days during their petition drive. They were already organized. It was already an impassioned issue. She did not bring this issue forward, but she could relate to it. Thirty days was not really enough time for the citizens to be able to rally interest and to make their concerns be known. When they get the energy rolling and people were excited about it, then they would jump in. If it was not there it was going to drag on forever. Alderman Thiel asked the attorneys what they thought of the forty-five day proposal. It was critical for bonding purposes? Mr. Wilburn stated they would be different from everyone else in the State. As far as he knew, everyone else in the State was thirty-one days. Alderman Young stated there was a law passed stating that any one who did not have an ordinance on the books, the affective date was ninety -days. Mr. Wilburn stated he had not come across any city which did not have that ordinance on the books. Alderman Santos stated there were other re -courses. They were trying to change an ordinance which was going to have an adverse affect on ninety-nine percent of their ordinances. Alderman Zurcher asked who was being hurt by the delay besides the bond issuer. Alderman Reynolds called for the vote. Mayor Coody asked shall the ordinance pass. Upon roll call the ordinance failed by a votes of 3-5-0, Santos, Reynolds, Thiel, Trumbo, and Davis voting nay. ORDINANCE FAILED. NEW BUSINESS CLIFFS APARTMENTS: An ordinance waiving Ordinance 3793 to accept money- in -lieu of the park land requirement for the Cliffs Apartments Phase II Development. Mr. Williams read the ordinance for the first time. Alderman Davis stated he was in favor of this. The developer was giving one hundred and thirty- • five thousand dollars in lieu of land. They were also going to be putting in an olympic sized pool, jogging and walking trails. • City Council Minutes August 7, 2001 Page 14 Mr. Williams stated they were developing as a PUD and this was private park land that they were having for their residents. They were donating money rather than giving additional land for a public park. In response to questions, Mr. Tim Conklin stated this was an extension of the Cliffs. The property is surrounded to the east and north by the original Cliffs Boulevard and Highway 265. The planning and development was in the process right now. They were meeting the open space requirements with regard to the request for increase in density bonus. They had a two hundred and fifty foot setback around the perimeter. It was a Planned Unit Development. It was an expansion of the original Cliffs. They will have park like amenities within the development in addition to the one hundred thirty thousand five hundred dollars. Alderman Thiel stated that they did have parks near by and that they did not really need the park land. Park land acquisition to the north was preferred in the future. She supported this. Ms. Connie Edmonston stated that they encouraged developments to add park amenities for their people because it took stress of the park system. They can still serve the area with other park • amenities such as soccer fields or skate board parks. It was a good compromise that when they had a development with the community spirit of providing for the people recreational activities that it was a good deal for both people. Alderman Davis moved to suspend the rules and move to the second reading; Alderman Jordan seconded the motion. Upon roll call the motion carried unanimously. Mr. Williams read the ordinance for the second time. Alderman Santos stated he would like to explain that this fee was an impact fee, it was based on the demand for parks created by the new residents. This was going to be a public park, but it was going to provide recreational facilities for these residents. It was a great deal for the city because in addition to providing for the demand created by the development they were also contributing to the greenspace fund, just as if they had not included a park in their development which already met their new residents demands for recreational facilities. Alderman Santos moved to suspend the rules and move to the third and final reading. Alderman Thiel seconded the motion. Upon roll call the motion carried unanimously. Mr. Williams read the ordinance for the third and final time. Mr. Geary Lowery, an area resident, stated make sure that they collect the money. Subdivisions and • places that were suppose to dedicate money or land to the city have not done so. The area where he lived was supposed to dedicate fourteen thousand eight hundred and forty-eight dollars toward the • City Council Minutes August 7, 2001 Page 15 Parks and Recreation department. They had yet to fulfill their obligation. He suggested that they get their documents recorded and checks certified. Ms. Edmonston stated upon final plat approval there were spaces where everyone had to sign off on. One of them was the parks. If they were requiring park land or money in lieu. If it was land they did not sign off until a deed is received. If it was money they did not sign off until they had paid the money to the city. They did have check and balances in place now. She did not think that could happen. Alderman Thiel stated she had checked on it, during that time the individual when they built a house within a subdivision they were supposed to take care of this. That became very difficult to track. There were probably a lot of older subdivisions still where that happened. For them to try and track that now would be cost prohibitive. Their ordinances now protected them from that situation. Mayor Coody asked shall the ordinance pass. Upon roll call the ordinance passed unanimously. ORDINANCE 4328 AS RECORDED IN THE OFFICE OF THE CITY CLERK. • RZN 01-10.00: An ordinance approving rezoning request RZN 01-10.00 submitted by George Faucette on behalf of James and Judy McDonald, for property located at 461 East Township. The property is zoned R- 1, Low Density Residential and contains approximately.42 acres. The request is to rezone to C-2, Thoroughfare Commercial. Mr. Williams read the ordinance for the first time. Alderman Santos asked to leave this item and the next on the first reading tonight. He did not have a problem with any of them. But they needed to give people in the community more time. Mr. Faucett stated this item had passed the Planning Commission by a vote of 9-0. In addition to that over half of the lot was zoned C-2. He thought there was a problem with the zoning map. Alderman Trumbo moved to suspend the rules and move to the second reading. Alderman Davis seconded the motion. Upon roll call the motion carried unanimously. Mr. Williams read the ordinance for the second time. Alderman Trumbo moved to suspend the rules and move to the third and final reading. • Alderman Reynolds seconded the motion. Upon roll call the motion carried unanimously. . City Council Minutes August 7, 2001 Page 16 Mr. Williams read the ordinance for the third and final time. Mr. Conklin stated the staff had recommended approval, the Planning Commission did approve it. In this situation, it was a lot which was half zoned C-2 and half R- 1. The use had been established in the early seventy's. It was a clean-up rezoning. There was currently a retail business there. Mayor Coody asked shall the ordinance pass. Upon roll the ordinance passed unanimously. ORDINANCE 4329 AS RECORDED IN THE OFFICE OF THE CITY CLERK. ANX 01-2.00: An ordinance approving annexation request ANX 01-2.00 for property located east of Sunshine Road and South of Mount Comfort. The property is in the planning area and contains approximately 14.47 acres. The request is to annex the subject property into the City of Fayetteville. Mr. Williams read the ordinance for the first time. Alderman Zurcher asked if they had any idea of when they wanted those planning areas to develop. • Mr.Conklin stated this annexation is directly north of a forty acre annexation that they looked at a couple of months ago. At that time, the Mayor brought up that they would begin looking at annexation policy for the City of Fayetteville. His staff has begun that effort, along with updating their general plan with the 2000 census numbers. What he intended to do was to bring forward an amended General Plan with the first three chapters and adding a chapter with regard to annexation policy. That would be brought through the Planning Commission and the City Council. Most cities that had an annexation policy have placed those policies within their Comprehensive plan. That was what they were looking to do. Mr. Philip Humbard, Engineering Services, this parcel did contain the park land that they were going to dedicate to the city as part of the development. Alderman Thiel stated this was part of a large park. Mr. Conklin stated this was along Hamstring Creek. The idea was to have the land dedicated as part of a potential greenway system along the creek. They had received other land dedications in other developments closer into town. The idea was this would make an ideal location for some type of trail or greenway system. It contained floodway and floodplain. It was a beautiful piece of property that would be good for a trail. ORDINANCE WAS LEFT ON THE FIRST READING. • RZN 01-11.00: An ordinance approving rezoning request RZN 01-11.00 submitted by Phillip • City Council Minutes August 7, 2001 Page 17 Humbard of Engineering Services on behalfof Cross Creek Subdivision for property located east of Sunshine Road and South of Mount Comfort Road. The property is zoned A-1, Agricultural, and contains approximately 14.47 acres. The request is to rezone to R-1, Low Density Residential. Mr. Williams read the ordinance for the first time. ORDINANCE WAS LEFT ON THE FIRST READING. RZN 01-12.00: An ordinance approving rezoning request RZN 01-12.00 submitted by Rob Sharp, on behalf of Brian Reindl, for property located at 509 West Spring Street. The property is zoned I-1, Heavy Commercial/Light Industrial, and contains approximately 1.91 acres. The request is to rezone to C-3, Central Commercial. Mr. Williams read the ordinance for the first time. Alderman Zurcher stated this has been used as commercial. He was concerned about the people who were doing some light industrial there, would they be forced out? Mr. Conklin stated any use that was allowed in I-1, that is now unconforming would be grandfathered in. They did have standards within their zoning ordinances and how long they could be abandoned until they had to comply with the C-3 zone. Typically it was six months. Any parts of the building that was currently being used and continue to be used in that manner can continue as long as they did not stop having business. They were grandfathered in. The city was not going to send them a letter ordering them to discontinue. Alderman Davis asked if they were allowed to expand the inside that building. Mr. Conklin stated they were not allowed to expand. There were limitations on how much remodeling or renovations that they could do. It would allow the business to stay in operation. It was not going to put any burdens on them. C-3 had been passed a few years ago to help revitalize Dickson Street. This allowed existing buildings to used or converted from warehousing to retail without requiring additional parking. Prior to that they required parking. It was very difficult to provide that parking. They had seen a lot of their old industrial buildings on Dickson Street and that area be converted from warehousing /industrial uses to retail, entertainment uses. This rezoning would allow them to convert additional space within that building to retail, restaurants, and entertainment uses without having to provide additional parking. It encouraged the use of these old buildings. Alderman Zurcher moved to suspend the rules and move to the second reading. Alderman • Trumbo seconded the motion. Upon roll call the motion carried unanimously. C City Council Minutes August 7, 2001 Page 18 Mr. Williams read the ordinance for the second time. Mr. Bob Sharp, applicant representative, stated they had been approved at the July 9, 2001 Planning Commission meeting. He would appreciate it if they could approve this tonight. Alderman Davis moved to suspend the rules and move to the third and final reading. Alderman Zurcher seconded the motion. Upon roll call the motion carried unanimously. Mr. Williams read the ordinance for the third and final time. Mayor Coody asked shall the ordinance pass. Upon roll call the ordinance passed unanimously. ORDINANCE 4330 AS RECORDED IN THE OFFICE OF THE CITY CLERK. SPECIAL ELECTION: A resolution expressing the intent of the City Council to call a special election to dedicate one -quarter cent (.25%) sales and use tax for bonds to fund development of projects toward achieving the goals of the Master Park Plan and the Master Sidewalk and Trail Plan. Alderman Thiel stated she had brought this forward because she knew that people had wanted parks and trails and sidewalks. She had brought this forward now because of the proposed park they had planned around the proposed wastewater treatment plant. She thought it would be a selling point to tie the three-quarter cent sales tax to the park and trail sales tax. She thought people would support the one -quarter of a cent sales tax. The arguments that she had heard indicated that it would complicate the ballot and cause confusion to the voters. Her intention was not to jeopardize the three quarter sales tax proposal. It was critical that it got passed. She wanted to see if people were interested in this idea. No one has come forward one way or the other. She would leave it up to someone else to make a motion. If no one made a motion it would die from lack of a motion. Mayor Coody stated they were starting the budget process for 2002. They have found some ways to consolidate funds to be more affective providing services. Alderman Thiel stated the park proposal around the plant was roughly forty percent of the master • park plan. It was roughly a fourteen million dollar park project. She was going to support it for many reasons. It was going to be difficult to fund that project within the next twenty years with their City Council Minutes August 7, 2001 Page 19 current funding. She thought it was better to not mix it with this issue. FAILED FROM LACK OF A MOTION. Meeting adjourned at 8:45 p.m. • • • Arkansas Democrat°I., Al l ll)A\'!'!' 01" 1'UJ3LlC,Vf[ON I' dusulcnuily swear dial I am Legal Clerk of the Arkansas Deniocrat-Gazelic Newspaper, primed and publi:;hed al I cwcll, Arkan::cLs and (harum my Own persunal knuwludi;e;inkl reference Lo the files of said publication the advertisement of . \\/a>; in - •rtcd in the rcgtdar cdiliuns on / c a Publication Ch;u'lc— f/ f2_ 7 9s— Perch;lse Order 11 RECEIVED AUG 14 2001 CITY OF FAYETTEVILLE CITY CLERK'S OFFICE Subscribed and sworAtob s me this /clay of -2001. Notary Public My commission expires 3 . ' OFFICIAL SEAL • CAROLYN COAKLEY aKir%tol u 0SaisA�ucnuc, Fayeticvilic, Arkan:;as %2%01, (501)571-6467 • 08-14-01A10:20 RCVD ORDINANCE NO. 4327 - '•'n • AN OR9INANCE CALL'NG AN ELECTIOR OATH! QUESTOH OF THE ISSUANCE OF NOT TO. ONE HUMORED TWENT6FWE MILLION DOLLARS (S12S,OOQ000) OF CMTAL I!MINT BONDS BY THE CITYMRhyNP,1e PURPOSE OF PNANONG ALL OR A PORTION OF THE (0515 OF THE ACQUISTIION, CONSIRUCOON, RECONSTRUCTION, EXTENDING, IMPROVING AND EQUIPPING OF WASTEWATb,•..4TMS4T PUNTS, SEWERAGE, AND RELATED FACILITIES, LEVYING A SPECIAL LOCAL SALES AND USE TAX AT THE RATE OF IHREE-OUARER5 OF ONE PERCENT (0.75%) WITHIN THE CITY TOOL P(®GED TO THE PAYMENT Of THE BONDS, TrH101 EM SHALL.. .. CEASE UPON RETIREMENT OF THE BONDS; CAIUNG AND SETTING A DATE FOR A SPECIAL ELECTION ON THE QUESTION OF THE ISSUANCE OF THE BONDS; DEfNING THE TERM SINGLE TRANSACTION'; AND'PIlESCR'(g*'P" OTHER MAPTDK PERTAINING THERETO. .. .. •" ,nIW WHEREAS, the City (ound of the Cry of Fayetteville, Arkansas recognizes and determines there Is a great and pressing need to subftfl y (muse the City's sediment treatment mpgdy, dpd",!"'ryil WHEREAS, If the totem of Fayetteville Bled to use a spedol diywtde sale tax to Iwonce this capital improvement, many millions of dollar of f iondng expense would be saved hi camparhosh w Ill (Ipdpying this improvemem by a large increase in sewer rates for the cntanen of the Fayettedfe wdewula system; and r:,,v,hern WHEREAS, the Cry Count]! of the City of Fayetteville, Arkansas has determined that these is a Breen need for additional soaces of revenue e to Pressure capitol Improvements to most the need of iltall6 ohs of the thy; mid ....,.. ;u,nnn WHEREAS, Title 14, Chapter 164, Subchapter 3 of the Arkansas Code of 1987 Annotated (the 'Local Government Bond Ad of 19851 auhaire the Issuance of espial improvement bands?y dHe3 iv,, bads may be searced by the pledge of the recoip6 of the spedd drywde salesand use tax pmm'6ed by the Lad Government Bad Ad of 1985; and •.:r_uos rv.,tuldak!:I WHEREAS, sold spedd dtywMe soles and use tax Is to be levied and cfecied only on the BM $2,500 of eats stay a tsonsodmr, and •, q;;ty^le WHEREAS, an a dding dtyMde soda and use tax h presently being ltd pursuant to the Leal Govensme is Baud Ad at the rots of On Percent (I%), which Msy expire an Martz 31, 2002,' mid '.5vd l WHEREAS, 9 approved by the aboard of Fayetteville the City Count of FMiterwlle, Ackamas has determined to Issue in capital hprovemem bonds In prbdpd amount teat to exceed OneHfadred Five Mdlaa Dollars (S125,000,DDO) for the purpose of Drindng all at a portion of the costs of the acquisition, tmcmmdlm, recomtmdon, extendhsg, improdag, and equipping of watesrme neaknan`philS •YI and related facilties, which Bands an to be secured by the pledge of o0 of the recdpts of a Ihree-qua"en of one percent (0.75%) spedod dtyMde sales ad we to; as auNeand by the Loral WHEREAS, the purp%e of Ihh Ordinanro h toml a speaid eleda on the ksuohn of the Bonds by the Gy of foyettevle, and to define tat term'slrgle Iransadon ; NOW, THEREFORL BE TI ORDAINED by the (y Counal of the City of Fayetteville, Arkansan:PP� Section 1. That underthaauihairy of the Local Government Bond Ac and subled to the approval fry the eh alas of the City Fayetledle m provided in Section 3 blow, there k herchypulliul$,llse_. issuance of the Cry's capitol improvement bonds In the aggregate principal amount of not to exceed One HundredTwenty-Five Million DoRms ($125,000,000) (the 'Bands') for the purpose of 8nantlnp` 0 a dpor GIs' .� the costs of acquiring, co%kucMB renaatrudPog extending, Improving and equipping wastewater treatment plank, sewerage and related fdlges (toe 'Pro(ed'1. If the Iswace of the Bads is approved by the 0IA(feif.�, of Its Cly, $e Bads may thereafter be kind in ate ormate sed%from time to Ome in a aggregate principal amount rot te exced due prided meal apprend by tee GIW e elected. If approvd bythe eledbripl to ad iswed,.tee Bonds shoo be seared h a d e of ad a Gen ail of the rani of a threF anted of eat m CBY r id B aPoa Ph w peram (0.75%1 spdd drywue sod% and meta (ten Sodas and um Ta'1; as��I, fN�,;, Local Govemmam BondAd. Soda 2. That ceder the authority of the Local Government Bad Ad ad uplifted to approval by the elders of the City as provided in Sella 3 below, then Is hereby levied the Sales and Use To at the rote of tivasioners of one percent (0.75%) a des gross rocdpys Isom tie ask at town withM tat ay of ail Nam which ate so* to the Arkam%Gm Reaepys Act of 1941, m ammdd (Arkansas lode of 119Ei'—"` Amounted 626-52.101 et seq.), and an excise (or me) tax on the dotage, use, diswbutian a other consumption within the City of longihie personal property purchased, lensed or rend From a" rem0efSA the Stair of Admens after Ube effective date of the Soles ad On Ta Ior dust use, datrthation a other eawmption la 1M Ory at des rate of drus"unters of am percent (0.75%) on tat ads Piro of tee pra'peiiy&*,In the case of leases or rentals, an the Into a nasal price, the rate of the use tax to correspond to the rote of the sale tax. The use to potion of the Sales ad Use To shag be collected acmrdng to the terms of II AilSmos • Compensating Ta Ad of 1949, as anedd (Arkamos Code of 1987 Annotated 626.53-101 el seq.). The Sales and Use Tax shag be levied ad collected only on that first $2,500 of each'single transaction" (as defined G Section? hereof). The levy and collodion of the Soles ad Use Tax shag commence on April 1, 2002 and shall team upon retirement t of the Bads. Sedan 3. That there be, and there is hereby coned, a special election to be held an Tuesday, November 6, 2001, at which election there shag be submitted to the electors of the City the question of the issuance of the Bonds. Section 4. That the question shun he placed on the ballot for the Vestal election in substantially the following fore: Thera Is submitted ta due qualified elders of the Gry of Fayetteville, Arkansas, the question of the issuance of moral impre t bands to pchdpal amount rat w aced One Huard Twenty-Fhe Million Di (5125,000,0001 (the 'Bads') pursuant to Tide II, Ompter 164, Subchapter 3 of tie Arkansas Code of 1987 Annotated (tat iaal Government Bond Ad of 198S) for the purpose of fimmsdhg an or o portionof the of the acquisition, amso di , reconstruction, extending improving and equipping of the Wastewater System Improvement Project which emmmpmses bulling and equlppwp a second wastewater mom. W plans, modfywg extending and improvig the sewn collection system, reconstruction and improving the torrent wmtaoter treatment plant, mating land and equip ent purchases, proadp arMudfon and professional ravkas, ahimnMg regulatory approwk ad permits, and doing all other neassay tmgs to increase arid improve the City of FayetMil e's remainder treatment capacity and mland faNdes. If the iavane of in. Bads b approved, t e Bads shoo be secured 6y a pledge of ad fien upon all of t%recelpk of o special dlywide mks and me tax at dm Me of tuerquders of eat p osted (0.75%) levied Forwal ta the Lora Wvermnal Band Art (tat Sales and Use Ta'1. If to Issuanceof tie gads Is approvd, the levy ad collection of she Selm and Use Tax shag museum an Apr81, 2002 and shag came uponre*remem of rise gads. Vat on tiro questionby Placing anT in rem ofthe squares Mowing the quaion, dates for or against: FOR the Issuance of Bonds bn principal amount not to exceed One Hundred Twenty -Fie Million Dollars (5125,000,000) for the purpose of financing all or a portion of the ash of acquiring caatrusting, fnamfrudNg extending, Improving and equipping wastewater treatment plants, sewerage and other related Improvements ...............7 O AGAINST the Issuance of Bonds in principal amount nor to exceed One Hundred TwentpAve Million Dollars (5125,000,0001 fa the purpose of finadng all a a pension of the costs of acquiring, constructing recomhudnd extending, Improving and equipping wastewater treatment plays, sewerage and otter related improvements ...............70 - Soda 5. That the election shall be had and conducted and the vote canvassed and the results ddared under the.law and in the answer new provided for Arkansas municipal elections unless otherwise provided in the Leal Government Bond Ad, and only qualified "ten oldie Cry shall have the right to vote at the election. The City Clerk is hereby directed to give notice of the special election by one odvertseuant In tie Nat wart Arkamm Times, the publication to be not In than ten (10) days pilot to the dote of the election. -- Section 6. Then a copy of this Ordnance shill be given to the Washwgion Cosmry Board of Oedion Co mmsslaers so Act the necessary election officials and supple% may be podded. A certified copy of ;hb Ordnance ad a map lady showing The boundaries of tie City shall oho be podded ta IM Director of the Depaaenl d Huaae ad AMdnIstratla ad w the Treasurer d A11 Stole of Arkmum %soon as prod Section?. That the resuhs of the special election shag be produimedby tat Maya, ad his prdmnation skadl be pAtdatd 4011 IDn in the Nadnf Arkanas Times. The prodmaSan shall dv s$ that y The reuht as palaimed shag be comlus a uness awritd in tat Garuit Court of Wmhwgton County within testy (30) dogs ofM the dad d publmtion of Ae prdmna an. Sedin 8. That rbe Maya od the Cry tlerk, for ad on beholl of Ae Cry, b11, and Any hereby are ouAorited cod dadd ta do ay ad erg td netessory se nd ad hold Ae spacial aledan provided ad, U Ae levy of tat ssuence of Ae ponds s approved by The elders, to come the Saks and Use Tax io bat collected te arodace Math Ae laaE Govemmml Bond Ad, and ta perform oil uai of'v` " ^• nature necessary to retry out the authority conferred by this Ordnance. - .. `"• :_*' . Section 9. That, for purposes of the Solos and Use Tax, the term 'single tronsodion Is defined according to the nature of the goods purchased %follows: P E.1"rTiw �f d A. When two or more devises ern which, upon which or by whhh any person or property is, or may be, transpded m drown, including ben nor B aid lo, orp vehicles, ofaad Jets cis a; s. whether required to be licensed or not, airplanes, water vessels, motor vehicles, non -motorized vehicles and mobile homes, ore said to a person by a seller, each Individual amt, whither pat of a ,, 1 sated a o single hansedion for the purposesof the Sdesad UseTax; r., Y p. i•,r B. Charges for airy services are subjd to the Sales and Use Tax, and which are Furnished on a continuous service bass, whether such services are paid for daily, weekl), exactly a ennui$ shoo • camPuhd in dimly bhaernents, aced each such dally shape incrementshoo beaahsidetd to be a single homdion fa the pacpa%of the Soles and Use Tact; . e C For sale of building moteclab ad supplies w contractors, holders a other persons, o shple transaction, fa the purposes of tiro Sdes ad Vm Tax, shoo be deemed w he my siagle ask which Mlles an a single sh"ke, receipt a di.iawc , an which an aggregate sates (or use) tax Rgue has ban reported and mined to the Stan of Arkamr "• D. When two a more (tam of moja homensid apphonces, cammerdd applances, major equipment or moddumy two sold, each id t" umt droll be treated as a shhple tromadietif�epip41d rbeSalescdUseTat;ad E For growl%, drug ftnr dry goods and other tangible personal property and/or services net expressly covered in this Sedan 9, a single anctioc far the purposes of the Sales and Use Tdx, dial be deenned to be any singlesale which k refedd a a single invoice, receipt or stanmad, an wfikh an aggregate oaks tax figurehas been remand and reMtld totat Stan of Arkmua Se10. Th%Hutek Rock LIP Is bereby engagd as Bond (pond and Stephens Ins. b hereby engaged as Underwriter or Finadd Advsor, as approprMe, with respM te the hum danem of the Bads.The fees and expenses d Bond Conrad and Ae Uderwriter or Flmmmol Adykar shall be o cod of issuance of the gads to he paid with Bod Proteds, If allowd. y Section 1.1.. That an ordinances and parts rheref in conflict hernithae hereby repealed to the extent of such eonPoct. PASSED AND APPROVED his 7th day of August, 2001. <g <.h i•, .-:�-.,.rwwanvbmcettsv.^wr "APPROVED: By DAN C00DY, Mayor Gteo Roberts, Deputy Ory Oak .as yt Sa c EAL) OIHUTE i undersigned, thy Clerk of the City of Fayetteville, Adurnms, hereby certifies that the foregoing is a true and perfect copy of an Ordinance adopted at a regular meeting of the City Count of the City of Fayetteville, comas, held in Room 219 of the City Administration Building at 6:30 p.ro. on August 7, 2001. TED: August 8,2001 te Roberts, Deputy Cry awn ,` •aP%'tAS. fiw vie .,�:a5 w'r;•...,yP,,,,;,y I• 1• RECEIVED OCT 19 2001 ACCTG. DEP1 AFFIDAVIT OF PUBLICATION STATE OF ARKANSAS, `of The Morning News of Northwest VIL:LE Arkansas, a daily newspaper having a general circulation in said county, ION 4 and do solemnly swear the said ad- vertisement was published for ii.elec l .re• wilt ! t consecu the ity the 3'Tax in said H ic.>., s : newspaper, the said publication ap- ih the pear - I`1 l y da of rincipal, sl e •I day of fie;pur� I day of day of I • tsonas autnonzeulauove; the ietiyuiuie uies4 j02301 A08 : 14 I N and use tax (0:75%)shall ceaseautomahcally.k S FAYETTEVILLE SPECIAL ELECTION BALLOT rACITY OF FAYt ii EVILLE B WASHINGTON COUNTY C NOVEMBER 6.2001 INSTRUCTIONS TO VOTER 1.TO VOTE YOU MUST BLACKEN - " THE OVAL ( � ) COMPLETELY - NEXT TO YOUR CHOICE. 2.USE ONLY THE PENCIL PRO- - VIDED. 3. AFTER VOTING, DEPOSIT THE - BALLOT IN THE BALLOT BOX, BALLOT STUB IN STUB BOX. „ There Is submitted to the qualified electors of the City of Fayetteville, Arkansas, the question of the issuance of capital Improvement bonds in prin- cipal amount not to exceed One hun- dred Twenty -Five Million Dollars [$125,000,000] (the "Bonds") pursuant to Title 14, Chapter 164, Subchapter 3 of the Arkansas Code of 1987 Annotated (the "Local Government Bond Act of 1985") for the purpose of financing all or a portion of the costs of • the acquisition, construction, recon- struction, extending, Improving and equipping of the Wastewater System Improvement Project which encom- passes building and equipping a sec- ond wastewater treatment plant, modi- fying, extending and improving the sewer collection system, reconstruc- tion and improving the current waste- water treatment plant, making land o � and equipment purchases, procuring construction and professional ser- vices, obtaining regulatory approvals and permits, and doing all other ne6es- sary things to increase and improve the City of Fayetteville's wastewater treatment capacity and related facili- ties. If the Issuance of the Bonds is approved, the Bonds shall be secured by a pledge of and lien upon all of the receipts of a special citywide sales and use tax at the rate of three-quarters of one percent (0.75%) levied pursuant to the Local Government Bond Act (the "Sales and Use Tax"). If the issuance of the Bonds Is approved, the levy and s1 collection of the Sales and Use Tax • shall commence on April 1, 2002 and shall cease upon retirement of the Bonds. o FOR the Issuance of Bonds in prin- cipal amount not to exceed One Hundred Twenty -Five Million • Dollars ($125,000,000) for the pur- pose of financing all or a portion of the costs of acquiring, construct- - Ing, reconstructing, extending, Improving and equipping waste- water treatment plants, sewerage and other related improvements. o AGAINST the Issuance of Bonds In principal amount not to exceed One Hundred Twenty -Five Million Dollars ($125,000,000) for the pur- pose of financing all or a portion of the costs of acquiring, construct- - ing, reconstructing, extending, improving and equipping waste- water treatment plants, sewerage and other related improvements. B C 001 _._J Q Ease 1981 PROCLAMATION DECLARING RESULTS OF ELECTION • I, the undersigned mayor of the City of Fayetteville, Arkansas, (the "City"), after examining the election returns and the Certificate of the Washington County Board of Election Commissioners certifying the vote FOR and AGAINST the question of the issuance of capital improvement bonds in principal amount not to exceed One Hundred Twenty -Five Million Dollars (the "Bonds") pursuant to Title 14, Chapter 164, Subchapter 3 of the Arkansas Code of 1987 Annotated (the "Local Government Bond Act of 1985") for the purpose of financing all or a portion of the costs of the acquiring, constructing, reconstructing, extending, improving, and equipping of the Wastewater System Improvement Project which encompasses building and equipping a second wastewater treatment plant, modifying, extending and improving the sewer collection system, reconstruction and improving the current wastewater treatment plant, making land and equipmentpurchases, procuring construction andprofessional services, obtaining regulatory approvals and permits, and doing all other necessary things to increase and improve the City of Fayetteville's wastewater treatment capacity and related facilities. If the issuance of the Bonds is approved, the Bonds shall be secured by a pledge of and lien upon all of the receipts of a special citywide sales and use tax at a rate of three-quarters of one percent (.75%) levied pursuant to the Local Government Bond Act (the "Sales and Use Tax"). If the issuance of the bonds is approved, the levy and collection of the Sales and Use Tax shall commence on April 1, 2002, and shall cease upon retirement of the Bonds, therefore, pursuant to Ordinance 4327 of the City of Fayetteville adopted August 7, 2001, I do hereby proclaim that the votes FOR and AGAINST the issuance of bonds were as follows: 4069 FOR the issuance of Bonds in principal amount not to exceed One Hundred Twenty -Five Million Dollars ($125,000,000) for the purpose of financing all or a portion of the costs of acquiring, constructing, reconstructing, extending, improving and equipping wastewater treatment plants, sewerage and other related improvements. 649 AGAINST the issuance ofBonds inprincipal amount not to exceed One Hundred Twenty -Five Million Dollars ($125,000,000) for the purpose of financing all or a portion of the costs of acquiring, constructing, reconstructing, extending, improving and equipping wastewater treatment plants, sewerage and other related improvements. • All persons are hereby notified that the results of the election on the question of the levy of the sales and use tax shall be conclusive unless attacked in the Circuit Court of Washington County within thirty (30) days after the publication hereof. GIVEN this 14 day of November, 2001. By an Co y, Mayor CERTIFICATE OF CITY CLERK STATE OF ARKANSAS CITY OF FAYEITEVILLE COUNTY OF WASHINGTON ) I, Heather Woodruff, City Clerk, within and for the City of Fayetteville, Arkansas do hereby certify that the forgoing is a true and correct copy of the original Mayor's Proclamation Declaring Results of Election filed in this office, said Proclamation now appearing of record in my office. IN WITNESS WHEREOF, I have hereunto set my hand and seal this 1 m ay of November 2001. By: Heather Woodruff, City Clerl CERTIFICATE OF RECORD City of Fayetteville, Arkansas State of Arkansas City of Fayetteville J ss. I, Heather Woodruff, City Clerk/Ireasurer for the City of Fayetteville, do hereby certify that the foregoing instrume t is true and corre t y y of the original / filed ' my office oji the / `y` day of Witne's my hand and seal thisd� ,L w O O i Ca 'a O In 'd •u .Ly 'u p2 H In P, , • d G] 1 y O..In P y •to C. G'. [+ C P. V4 w N '\] - ry \may . O N .1- rj (p M� 0 0 0 o -r N , N vq ly ti C7 m G N p' ♦ •'• •yi' N \N -I G P. ry .-r V. p o = .`y ,; R''; 1 p. P. P. G1. 'b N p'—, CD N 71 .�,., ,W�" rNi• r"�+•... w ` 1. E` can : � w w w w H• ]C cwi LA w w o �C In 0 0 0 0 G W o O �� .: O• n� .� Iv H to �, % y: n • I' :7 V, ran " to \' o r•0, "' n. ..J - w O y NuJ .C 1�� n - > ^ P w N �I �. • v .a P G I . a rl��� rV ' CL \ M O y .b n v ci co H °' O I I v N W N \b .-p '.J to .�- y N N N N w Abe 3 . �• N n O A •f °f'r 7n"+L`nf1C] W. ::. 2 1L �. *g` 3 ` �(� i O+ 2'2�w� Vim, ��. i �fr-� yTI� r' .. Y... l Fi l 3 . V` ! .''i�Jj 66�i YCr 4�• l ¢ is �. v� ._ '["•Y•22 :. Nz. A < 1;:` 1 `e ."wFi�i .P:6 �` r G 3 rte"• (n ^• o -,O. ^. O : nmCD ma , n Ca " :c 4a y o - o m m j aIvy - r. G a' m t o Gil Zr- L -0) o r. 0 cl .�mz 0 i CERTIFICATE OF WASHINGTON COUNTY BOARD OF ELECTION COMMISSIONERS ASCERTAIN fl AND DECLARING RESULTS OF SPECIAL SEWER BOND thCIION HELD IN THE CITY OF.FAYETTEVJI91... NOVEMBER 6, 2001 U1 STATE OF ARKANSAS COUNTY OF WASHINGTON ) We. the undersigned members of the Board of Election Commissioners of Washington County. Arkansas, do hereby certify that: - Returns of the votes of the special sewer bond election held November 6. 2001. in the City of Fayetteville in Washington County. Arkansas have been delivered to us by the County Clerk: We ascertain and declare the results of the election to be: On the question of the issuance of bonds and 3/4 cent sales tax: FOR 4069 AGAINST 649 . We further certify that the polls were open from 7:30 A. M. until 7:30 P.M.. that only the duly appointed Election officials made due returns of the votes cast, and that we have canvassed the cotes as required by law. IN TESTIMONY WHEREOF, we have hereinto set our hands this 9th day of November. 2001. BOARD OF ELECTION COMMISSIONERS WA HflTONTI NSAS Jo J( 1 Torn l"RCATE OF RECORD Dank Williams. Member State of,Ar ,3 City of Fay_ , } ss. I, Heather Woc .. _. City Clerk/Treasurer for the City of Fayetteville, do hereby certify that the foregoing insir um t is true n orre c y of the c , :.i G// CCGdlir� i�i1.2r�1o✓ filed i in ott;ce gn ih lI day of seal thi. hand and RECEIVED r • ; r0 ,!1L; Woodruff, city C:erk/Treasur NO • 1 �i 2001 an' OF FAYEUEVH.LE CITY CLERK'S OFFICE 11-14-01 P03;1$ IN CLOSING CERTIFICATE AND REQUEST OF THE CITY The undersigned Mayor and City Clerk of the City of Fayetteville, Arkansas, a duly organized municipality and political subdivision of the State of Arkansas (the "City"), do hereby certify, represent, covenant and request as follows: 1. The undersigned are the duly elected, qualified, and acting Mayor and City Clerk of the City, and as such officials have in their possession or have access to the official books and corporate records of the City. This Certificate is executed and delivered in connection with the issuance of the City's $25,000,000 Sales and Use Tax Capital Improvement Bonds, Series 2002 (the "Bonds"). 2. Attached hereto as Exhibit A is a true, complete, and correct copy of Ordinance No. 4389 (the "Bond Ordinance"), duly adopted by a majority of the City Council at a duly called regular meeting of the City Council, open to the public, held May 7, 2002. The Bond Ordinance authorizes the issuance, sale and delivery of the Bonds, and the Bond Ordinance is in full force and effect and has not been altered, amended or repealed as of the date hereof. No petition or petitions to refer the Bond Ordinance to the people under Amendment No. 7 to the Constitution of the State of Arkansas have been filed as of the date hereof, and the City Council has not referred the Bond Ordinance to the people for adoption or rejection. Attached hereto as Exhibit B is a true, complete and correct copy of the minutes of a • meeting of the City Council held May 7, 2002, showing adoption of the Bond Ordinance, as said minutes appear in the official records of the City. At said meeting a quorum was present and acted throughout. Attached hereto as Exhibit C is a true, complete, and correct copy of a publisher's affidavit showing publication of the Bond Ordinance in the Arkansas Democrat -Gazette on May 18, 2002. No authority or proceeding in connection with the issuance, sale and delivery of the Bonds has been repealed, revoked or rescinded. 3. The following described instruments, as executed and delivered by the Mayor and/or City Clerk, are in substantially the same form and text as the copies of such instruments which were before and approved by the City Council at the May 7, 2002 meeting referred to in paragraph 2 above, with such changes not inconsistent with the Bond Ordinance as have been approved by the officials executing the same. Document Date Other Party or Parties Trust Indenture June 1, 2002 Simmons First Trust Company, as trustee (the "Trustee") • Tax Regulatory Agreement June 20, 2002 Trustee 10-36632.01 Document Date Other Party or Parties Continuing Disclosure Agreement June 20, 2002 Trustee • Bond Purchase Agreement June 12, 2002 Stephens Inc., as underwriter (the "Underwriter") Official Statement June 12, 2002 None The Trust Indenture, the Tax Regulatory Agreement, the Continuing Disclosure Agreement, the Bond Purchase Agreement and the Official Statement are hereinafter collectively referred to as the "City Documents." 4. The persons named below were on the date or dates of the execution of the City Documents, and are on the date hereof, the duly qualified and acting incumbents of the offices of the City set opposite their respective names. The undersigned, or their successors in office, are the authorized representatives of the City for all purposes of the Bond Ordinance and the City Documents. Title Name Mayor Dan Coody City Clerk Heather Woodruff 5. The undersigned Mayor of the City did manually execute each of the City Documents and the undersigned City Clerk of the City did manually attest the Trust Indenture. The undersigned Mayor of the City did manually execute and the undersigned City Clerk did manually attest $25,000,000 aggregate principal amount of Sales and Use Tax Capital Improvement Bonds, Series 2002 (the "Bonds"), said series of bonds being initially issued in the form of four fully registered bonds numbered from R02-1 upwards, initially dated June 1, 2002. 6. The City has duly authorized, executed and delivered the Bonds and each of the City Documents by all necessary action and, as of the date hereof, the Bonds and each of the City Documents are in full force and effect and each constitutes the valid, binding and enforceable obligation of the City, except to the extent their enforceability may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally, or by the availability of equitable remedies, and the City is entitled to the benefits of the same. 7. Any certificate signed by any official of the City (including this certificate) delivered to the Trustee or the Underwriter shall be deemed a representation and warranty by the City to the Trustee or the Underwriter as to the statements made therein (and herein). 8. The seal affixed to this certificate is the legally adopted, proper and only official seal of the City, and has been duly affixed to the Bonds. 10-36632.01 2 • 9. The meeting of the City Council of the City referred to in paragraph 2 hereof was open to the public in compliance with the provisions of Section 25-19-106 of the Arkansas Code Annotated (2002 Repl.), as amended and supplemented. 10. The present officials of the City and their respective terms are as follows: Date of Expiration Name Office of Term Dan Coody Mayor 12-31-04 Heather Woodruff City Clerk 12-31-04 Kit Williams City Attorney 12-31-02 Bob Davis Alderman 12-31-04 Lioneld Jordan Alderman 12-31-04 Don Marr Alderman 12-31-04 Robert Reynolds Alderman 12-31-02 Kevin Santos Alderman 12-31-02 Brenda Thiel Alderman 12-31-04 Cyrus Young Alderman 12-31-02 11. The Authorized Representative, of the City for all purposes of the Trust Indenture is Dan Coody, Mayor, whose signature appears on page 5. Until further written notice to you, • any instrument authorized by the Trust Indenture to be signed by an Authorized Representative of the City is to be honored if it contains the manual signature of this individual. 12. The City has not and will not engage in any activity which might result in the income of the Bonds becoming taxable to it or any interest on the Bonds becoming taxable to the recipients thereof under the Federal income tax laws. This covenant is made to all owners of the Bonds, their successors and assigns, as a further inducement for the purchase of the Bonds. 13. All of the conditions, covenants and agreements required in the Trust Indenture to be satisfied or performed by the City at or prior to the issuance and sale of the Bonds have been complied with, satisfied or performed in the manner and with the effect contemplated in the Bond Purchase Agreement and the Trust Indenture. The representations and warranties of the City contained in the Bond Purchase Agreement and the Trust Indenture are true and correct in all material respects on and as of the date of this Certificate as if made on the date of this Certificate. 14. The information contained in the Official Statement relating to the City, its organization, properties, operations and financial condition, and the description of the Bonds, the Trust Indenture, Ordinance No. 4327 of the City adopted August 7, 2001 (the "Election Ordinance"), the Bond Ordinance, the three-quarters of one percent (0.75%) special city-wide sales and use tax levied by the Election Ordinance (the "Sales and Use Tax"), and the pledged receipts of the Sales and Use Tax is true and correct in all material respects. To the best of the knowledge of the undersigned, as of its issue date, the Official Statement does not contain any . untrue or incorrect statement of a material fact and does not omit to state a material fact 10-36632.01 3 . necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading. 15. There are hereby delivered to the Trustee four (4) typewritten Bonds, one for each maturity, in the aggregate principal amount of $25,000,000, to be registered in the name of Cede & Co. The Trustee is hereby requested to authenticate the Bonds and to receipt for and upon the order of the Underwriter on behalf of the City, deliver the Bonds to The Depository Trust Company, New York, New York, after authentication and upon payment therefor of $25,213,105.70 plus accrued interest to the date of delivery in the amount of $43,048.72, for a total purchase price of $25,256,154.42. The Trustee is hereby directed to deposit the Bond proceeds as follows: (a) Deposit the accrued interest on the Bonds in the amount of $43,048.72 into the Interest Account of the Bond Fund; (b) Deposit $1,250,000.00, an amount equal to the Reserve Requirement (as defined in the Trust Indenture), into the Debt Service Reserve Fund; (c) Deposit $75,000.00 into the Costs of Issuance Fund and immediately pay those Costs of Issuance, with respect to the Bonds, as set forth in Exhibit D hereto; and (d) Deposit the remaining balance, in the amount of $23,888,105.70, in the Project • Fund to pay Qualified Project Costs (as defined in the Tax Regulatory Agreement) and invest said moneys pursuant to instructions from the City. 16. The City is a city of the first class pursuant to Title 14, Subtitle 3, Chapter 43 of the Arkansas Code Annotated. The City is operating under the major -council form of government pursuant to Title 14. 17. The City has not adopted any by-laws or rules of procedure relating to the conduct of its City Council meetings. 18. There is no action, suit, proceeding, inquiry or investigation involving the City before or by any court or public board or body pending or, to the knowledge of the undersigned, threatened wherein an unfavorable decision, ruling or finding would: (i) affect the creation, organization, existence or powers of the City or the titles of its officials to their respective offices, (ii) enjoin or restrain the issuance, sale or delivery of any of the Bonds or the City Documents, the levy or collection of the Sales and Use Tax, or the pledge of the receipts thereof, or the accomplishment of the Project (as defined in the Trust Indenture), (iii) in any way question or affect any of the rights, powers, duties or obligations of the City with respect to the Sales and Use Tax, (iv) in any way question or affect any authority for the issuance, authorization, execution, authentication, sale or delivery of the Bonds or the validity or enforceability of the Bonds, the City Documents, the Sales and Use Tax, the Election Ordinance, the Bond Ordinance, or the assignment by the City of any of the moneys, instruments or other rights pledged under the • Trust Indenture, or (v) in any way question or affect the Official Statement or the transactions 10-36632.01 4 • contemplated thereby, or any other agreement or instrument to which the City is a party and relating to the Bonds. 19. The City will apply the proceeds from the sale of the Bonds to finance capital improvements of a public nature, as provided in the Trust Indenture. The Sales and Use Tax authorized under the Act (as defined in the Trust Indenture) has been levied within the City pursuant to the Election Ordinance and the collection of such Sales and Use Tax commenced on April 1, 2002, as approved by the voters of the City. Receipts of the Sales and Use Tax are not presently pledged or hypothecated in any manner or for any purpose other than for the payment of the Bonds as provided in the Trust Indenture. 20. In the City, the time for filing a referendum petition is fixed at 31 days after the publication of the measure upon which the referendum is sought. 21. The adoption of the Election Ordinance and the Bond Ordinance, the execution and delivery of the City Documents, the authorization, execution and delivery of the Bonds, and compliance with the provisions thereof under the circumstances contemplated thereby does not and will not in any material respect conflict with, or constitute on the part of the City a breach or default under, any agreement or other instrument to which the City is a party, or any existing law, administrative regulation, court order or consent decree to which the City is subject. 22. The City's employer tax identification number is 71-6018462. • 23. Dan Coody, Mayor, hereby certifies that the signature of Heather Woodruff, City Clerk, affixed hereto is her true and correct signature, and Heather Woodruff, City Clerk, hereby certifies that the signature of Dan Coody, Mayor, affixed hereto is his true and correct signature. IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of June 20, 2002. CITY OF FAYETTEVILLE, ARKANSAS By: Dan Coody ayor • 10-36632.01 5 EXHIBIT D COSTS OF ISSUANCE Bond Counsel Fee and Expenses (estimated through closing and transcript preparation) Kutak Rock LLP 425 West Capitol Avenue, Suite 1 100 Little Rock, AR 72201 $50,000.00 Rating Fee Standard & Poor's Corporation 2542 Collection Center Drive Chicago, IL 60693 12,800.00 Trustee Acceptance Fee Simmons First Trust Company, N.A. 501 Main Street Pine Bluff, AR 71601 4,750.00 Official Statement Printing Document Solutions 400 West Capitol Avenue Little Rock, AR 72201 • Preliminary Official Statement $1,131.51 Official Statement 334.43 1,465.94 Underwriting Expenses Stephens Inc. 3425 North Futrall Drive, Suite 201 Fayetteville, AR 72703 1,485.72 Total: $70.50 1.66 J Reimbursement for Ordinance Publication Expenses City of Fayetteville 113 West Mountain Fayetteville, AR 72701 Attn: Administrative Services Director Amount to be determined 10-36632.01 D-1 • ORDINANCE NO. 4389 MICROFILMED AN ORDINANCE AUTHORIZING THE ISSUANCE AND SALE OF NOT TO EXCEED $25,000,000 OF SALES AND USE TAX CAPITAL IMPROVEMENT BONDS, SERIES 2002, BY THE CITY OF FAYETTEVILLE, ARKANSAS FOR THE PURPOSE OF FINANCING A PORTION OF THE COST OF IMPROVEMENTS TO THE CITY'S WASTEWATER TREATMENT, SEWERAGE AND RELATED FACILITIES; AUTHORIZING THE EXECUTION AND DELIVERY OF A TRUST INDENTURE PURSUANT TO WHICH THE BONDS WILL BE ISSUED AND SECURED; AUTHORIZING THE EXECUTION AND DELIVERY OF AN OFFICIAL STATEMENT PURSUANT TO WHICH THE BONDS WILL BE OFFERED; AUTHORIZING THE EXECUTION AND DELIVERY OF A BOND PURCHASE AGREEMENT PROVIDING FOR THE SALE OF THE BONDS; AUTHORIZING THE EXECUTION AND DELIVERY OF A CONTINUING DISCLOSURE AGREEMENT; AND PRESCRIBING OTHER MATTERS RELATING THERETO. WHEREAS, the City Council of the City of Fayetteville, Arkansas (the "City") has determined that there is a great need for a source of revenue to finance the costs of acquisition, construction, reconstruction, extension, improving and equipping of wastewater treatment plants, • sewerage and related facilities (the "Project"); and WHEREAS, the City is authorized and empowered under the provisions of the Constitution and laws of the State of Arkansas, including particularly Amendment 62 to the Constitution of the State of Arkansas ("Amendment 62") and Arkansas Code Annotated (1998 Repl. & 2001 Supp.) Sections 14-164-301 et seq. (as from time to time amended, the "Local Government Bond Act"), to issue and sell its capital improvement bonds to finance the costs of various capital improvements such as those comprising the Project, which capital improvement bonds may be secured by and payable from the receipts of the special city-wide sales and use tax authorized by the Local Government Bond Act; and WHEREAS, pursuant to the provisions of Ordinance No. 4327 of the City, adopted and approved on August 7, 2001 (the "Election Ordinance"), there was submitted to the qualified electors of the City the question of the issuance of not to exceed $125,000,000 in aggregate principal amount of capital improvement bonds pursuant to Amendment 62 and the Local Government Bond Act to finance the Project improvements described in the Election Ordinance, said bonds to be secured by a pledge of and lien upon all of the receipts of a special city-wide sales and use tax levied at the rate of three-quarters of one percent (0.75%) pursuant to the Local Government Bond Act (the "Sales and Use Tax"); and WHEREAS, at a special election held November 6, 2001, a majority of the qualified electors of the City voting on the question approved the issuance of said capital improvement • bonds (and the corresponding levy of the Sales and Use Tax and the pledge of Sales and Use Tax receipts to the payment of the capital improvement bonds); and 10-34907.02 • . Ord. 4389 WHEREAS, as authorized under the provisions of Amendment 62 and the Local Government Bond Act and as approved by the qualified electors of the City, the City has now determined to issue and sell its Sales and Use Tax Capital Improvement Bonds, Series 2002, in the principal amount of not to exceed $25,000,000 (the "Bonds"), in order to provide for the funding of a portion of the Project; and WHEREAS, as authorized by the provisions of the Election Ordinance, the City has previously made arrangements for the sale of the Bonds to Stephens Inc., Little Rock, Arkansas (the "Underwriter"), pursuant to the terms of a Bond Purchase Agreement between the City and the Underwriter (the "Bond Purchase Agreement") in substantially the form presented to the City Council before this meeting; NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Fayetteville, Arkansas that: Section 1. Under the authority of the Constitution and laws of the State of Arkansas, including particularly Amendment 62 to the Constitution of the State of Arkansas and the Local Government Bond Act, there is hereby authorized the issuance of bonds of the City to be designated as "Sales and Use Tax Capital Improvement Bonds, Series 2002" (the "Bonds"). The Bonds shall be issued in the original aggregate principal amount of not to exceed Twenty -Five Million Dollars ($25,000,000), shall mature not later than December 31, 2009, and shall bear interest at the rates specified in the Bond Purchase Agreement. The average yield on the Bonds as a whole shall not exceed 4.00% per annum, and the yield on no single Bond shall exceed • 4.00%. The proceeds of the Bonds will be utilized to finance a portion of the cost of the acquisition, construction, reconstruction, extension, improving and equipping of the Project, to establish a debt service reserve for the Bonds or purchase a surety bond for reserve purposes, to pay a premium for bond insurance, if deemed economically beneficial, and to pay printing, underwriting, legal and other expenses incidental to the issuance of the Bonds. The Bonds shall be issued in the forms and denominations, shall be dated, shall be numbered, shall mature, shall be subject to redemption prior to maturity, and shall contain such other terms, covenants and conditions, all as set forth in the Trust Indenture submitted at this meeting. The Mayor is hereby authorized and directed to execute and deliver the Bonds in one or more series, each series to be in substantially the form thereof contained in the Trust Indenture submitted to this meeting, and the City Clerk is hereby authorized and directed to execute and deliver the Bonds and to affix the seal of the City thereto, and the Mayor and City Clerk are hereby authorized and directed to cause the Bonds to be accepted and authenticated by the Trustee. The Mayor is hereby authorized to confer with the Trustee, the Underwriter and Kutak Rock LLP, Little Rock, Arkansas ("Bond Counsel"), in order to complete the Bonds in substantially the form contained in the Trust Indenture submitted at this meeting, with such changes as shall be approved by such persons executing the Bonds, their execution to constitute conclusive evidence of such approval. Section 2. In order to pay the principal of and interest on the Bonds as they mature or are called for redemption prior to maturity, there is hereby pledged all of the receipts of the Sales • and Use Tax levied by the Election Ordinance. The levy and collection of the Sales and Use Tax shall continue until such time as the Bonds are no longer outstanding or sufficient funds are on 10-34907.02 2 • Ord. 4389 deposit with the Trustee under the Trust Indenture to redeem the Bonds in full. The City covenants and agrees that all receipts from the Sales and Use Tax will be accounted for separately as special funds on the books of the City, and receipts of said Sales and Use Tax will be deposited and will be used solely as provided in the Trust Indenture. Section 3. To prescribe the terms and conditions upon which the 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 "Trust Indenture"), by and between the City and Simmons First Trust Company, N.A., Pine Bluff, Arkansas (the "Trustee"), and the City Clerk is hereby authorized and directed to execute and acknowledge the Trust Indenture and to affix the seal of the City thereto, and the Mayor and the City Clerk are hereby authorized and directed to cause the Trust Indenture to be accepted, executed and acknowledged by the Trustee. The Trust Indenture is hereby approved in substantially the form submitted at this meeting, including, without limitation, the provisions thereof pertaining to the pledge of Sales and Use Tax receipts and the terms of the Bonds. The Mayor is hereby authorized to confer with the Trustee, the Underwriter and Bond Counsel in order to complete the Trust Indenture in substantially the form submitted at this meeting, with such changes as shall be approved by such persons executing the Trust Indenture, their execution to constitute conclusive evidence of such approval. (Advice is given that a copy of the Trust Indenture in substantially the form authorized to be executed is on file with the City Clerk and is available for inspection by any interested person.) Section 4. There is hereby authorized and approved a Preliminary Official Statement of the City, including the cover page and appendices attached thereto, relating to the Bonds. The Preliminary Official Statement is hereby "deemed final" by the City within the meaning of U.S. Securities and Exchange Commission Rule 15c2-12. The distribution of the Preliminary Official Statement is hereby approved. The Preliminary Official Statement, as amended to conform to the terms of the Bond Purchase Agreement, including Exhibit A thereto, and with such other changes and amendments as are mutually agreed to by the City and the Underwriter, is herein referred to as the "Official Statement," and the Mayor is hereby authorized to execute the Official Statement for and on behalf of the City. The Official Statement is hereby approved in substantially the form of the Preliminary Official Statement submitted at this meeting, and the Mayor is hereby authorized to confer with the Trustee, the Underwriter and Bond Counsel in order to complete the Official Statement in substantially the form of the Preliminary Official Statement submitted at this meeting, with such changes as shall be approved by such persons, the Mayor's execution to constitute conclusive evidence of such approval. (Advice is given that a copy of the Preliminary Official Statement is on file with the City Clerk and is available for inspection by any interested person.) Section 5. In order to prescribe the terms and conditions upon which the Bonds are to be sold to the Underwriter, the Mayor is hereby authorized and directed to execute a Bond Purchase Agreement on behalf of the City, to be dated as of the date of its execution (the "Bond • Purchase Agreement"), by and between the City and the Underwriter, and the Bond Purchase Agreement is hereby approved in substantially the form submitted at this meeting, and the Mayor 10-34907.02 3 S • . Ord.. 4389 is hereby authorized to confer with the Underwriter and Bond Counsel in order to complete the Bond Purchase Agreement in substantially the form submitted at this meeting, with such changes as shall be approved by such persons executing the Bond Purchase Agreement, their execution to constitute conclusive evidence of such approval. (Advice is given that a copy of the Bond Purchase Agreement in substantially the form authorized to be executed is on file with the City Clerk and is available for inspection by any interested person.) Section 6. In order to provide for continuing disclosure of certain financial and operating information with respect to the Sales and Use Tax and the City in compliance with the provisions of Rule 15c2-12 of the U. S. Securities and Exchange Commission, the Mayor is hereby authorized and directed to execute a Continuing Disclosure Agreement to be dated as of the date of its execution (the "Continuing Disclosure Agreement"), by and between the City and the Trustee, and the Mayor is hereby authorized and directed to cause the Continuing Disclosure Agreement to be executed by the Trustee. The Continuing Disclosure Agreement is hereby approved in substantially the form submitted at this meeting, and the Mayor is hereby authorized to confer with the Trustee, the Underwriter and Bond Counsel in order to complete the Continuing Disclosure Agreement in substantially the form submitted at this meeting, with such changes as shall be approved by such persons executing the Continuing Disclosure Agreement, their execution to constitute conclusive evidence of such approval. (Advice is given that a copy of the Continuing Disclosure Agreement in substantially the form authorized to be executed is on file with the City Clerk and is available for inspection by any interested person.) Section 7. In order to secure lower interest rates on the Bonds, the Underwriter has proposed that the City consider the purchase of a policy of bond insurance with a portion of the proceeds of the Bonds, which policy would guarantee the payment of the principal of and interest on the Bonds when due. If deemed economically advantageous by the Mayor, upon the advice of the Underwriter, the Mayor is hereby authorized to execute an insurance commitment and to do any and all things necessary to accomplish the delivery of a bond insurance policy with respect to the Bonds. Section 8. The Mayor and City Clerk, for and on behalf of the City, are hereby authorized and directed to do any and all things necessary to effect the issuance, sale, execution and delivery of the Bonds and to effect the execution and delivery of the Trust Indenture, the Bond Purchase Agreement, the Official Statement, the Continuing Disclosure Agreement and a Tax Regulatory Agreement relating to the tax exemption of interest on the Bonds, and to perform all of the obligations of the City under and pursuant thereto. The Mayor and the City Clerk are 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 9. As previously provided in the Election Ordinance, Kutak Rock LLP, Little Rock, Arkansas, is hereby confirmed as Bond Counsel on behalf of the City in connection with the issuance and sale of the Bonds. 10-34907.02 4 S • ..Ord. 4389 • Section 10. The provisions of this Ordinance are hereby declared to be severable, and if any section, phrase or provision shall for any reason be declared to be illegal or invalid, such declaration shall not affect the validity of the remainder of the sections, phrases or provisions of this Ordinance. Section 11. All ordinances, resolutions and parts thereof in conflict herewith are hereby repealed to the extent of such conflict. PASSED and APPROVED this the 7w day of May, 2002. APPROVED: By: LZI DA COODY, Mayor ATTEAST!.! ,;;r CERTIFICATE OF RECORD Stan of Arkansas City of Fayetteville } as. I, Heather Woodruff, City Clerk/heasurer for the City of Fayetteville, do hereby certify that the foregoing instrument is a true nd correct copy of the original �99 filed in my office on the. _2 2_ day of seal ;r+9lday of L Wline's fn and and ather Woodruff, CityClerk areasurer 10-34907.02 5 MINUTES OF A MEETING • OF THE CITY COUNCIL MAY 7, 2002 A meeting of the Fayetteville City Council will be held on May 7, 2002 at 6:30 p.m. in Room 219 of the City Administration Building located at 113 West Mountain Street, Fayetteville, Arkansas. PRESENT: Mayor Coody, Aldermen Young, Davis, Santos, Jordan, Reynolds, and Thiel, City. Attorney Kit Williams, City Clerk Heather Woodruff, Staff, Press, and Audience. CONSENT APPROVAL OF THE MINUTES TRAILS GRANT: A resolution authorizing a recreational trails grant application and authorizing resources for a 20% share of project=s cost. RESOL UTION 67-02 AS RECORDED IN THE OFFICE OF THE CITY CLERK. MOTOROLA: A resolution awarding a contract to Motorola in the amount of $130,378.99 to upgrade the radio system to allow digital and encryption capabilities to be added to the Police • Department=s radios and approve a $10,000 contingency to the project. RESOLUTION 68-02 AS RECORDED IN THE OFFICE OF THE CITY CLERK. MAXIMUM AVIATION SERVICES: A resolution approving License to Maximum Aviation Services for use of Fayetteville Municipal Airport ramp space to park temporarily out of service airliners. RESOLUTION 69-02 AS RECORDED IN THE OFFICE OF THE CITY CLERK. DON NELMS: A resolution approving Don Nelms ground lease agreement for the purpose of constructing an aircraft hangar. RESOLUTION 70-02 AS RECORDED IN THE OFFICE OF THE CITY CLERK. FLYING INVESTMENTS: A resolution approving Flying Investments ground lease agreement for the purpose of constructing an aircraft hangar. RESOLUTION 71-02 AS RECORDED IN THE OFFICE OF THE CITY CLERK. • JUVENILE BLOCK GRANT: A resolution accepting the 2002 Juvenile Accountability Incentive . Block Grant Program. This grant is in the amount of $34,440.00 plus a ten percent match requirement of $3,827.00 for a total of $38,267.00. The proposed use of these grant funds is for software and equipment. RESOLUTION 72-02 AS RECORDED IN THE OFFICE OF THE CITY CLERK. FIRE APPARATUS: A resolution approving the return of $15,100.00 to the Fire Departments Operations Budget from the sale of fire apparatus. The money will be used to replace personal protective equipment for Firefighters. RESOLUTION 73-02 AS RECORDED IN THE OFFICE OF THE CITY CLERK. TRAFFIC STUDY: A resolution approving a transfer of Sanitary Sewer Rehab. Costs of $564,000 from CIP Sales Tax Fund to Water and Sewer Enterprise Fund, with $200,000 of the available CIP Sales Tax Funds to budget for a Master Traffic Study and $25,000 to be transferred to other Drainage Improvements. RESOLUTION 74-02 AS RECORDED IN THE OFFICE OF THE CITY CLERK. CDBG: A resolution to waive the building permit fee and other development fees for the Community Development. • RESOLUTION 75-02 AS RECORDED IN THE OFFICE OF THE CITY CLERK. BLACK AND VEATCH: A resolution approving a contract amendment with Black and Veatch for water and sewer system operations and rate study services and approval of a budget adjustment. RESOLUTION 76-02 AS RECORDED IN THE OFFICE OF THE CITY CLERK. MCGOODWIN, WILLIAMS & YATES: A resolution approving Amendment No. 2 to the contract with McGoodwin, Williams and Yates and approval of a contract contingency in the amount of $25,000 relating to the Wastewater System Improvement Project. RESOLUTION 77-02 AS RECORDED IN THE OFFICE OF THE CITY CLERK. Alderman Davis moved to approve the Consent Agenda. Alderman Jordan seconded. Upon roll call the motion carried unanimously. OLD BUSINESS • RZN 02-7.00: An ordinance approving rezoning request RZN 02-7.00 as submitted by Lindsey and Associates on behalf of the Estate of Marie Frankie Hughes for property located west of Porter Road and north of Valley Drive. The property is zoned R-1, Low Density Residential and contains approximately 11.94 acres. The request is to rezone to RMF-12, Moderate Density Family Residential. The item was left on the first reading at the Apirl 16, 2002 meeting. Alderman Davis moved to table the item. Alderman Young seconded. Upon roll call the motion carried unanimously. ORDINANCE WAS TABLED. NEW BUSINESS WASTEWATER SYSTEM IMPROVEMENTS: An ordinance authorizing the issuance and sale of up to $25 million of Sales and Use Tax Capital Improvement Bonds for the Wastewater System Improvement Project. Mr. Williams read the ordinance for the first time. Alderman Davis moved to suspend the rules and move to the second reading. Alderman . Santos seconded the motion. Upon roll call the motion carried unanimously. Mr. Williams read the ordinance for the second time. Alderman Santos moved to suspend the rules and move to the third and final reading. Alderman Reynolds seconded. Upon roll call the motion carried unanimously. Mr. Williams read the ordinance for the third and final time. Alderman Davis asked if there were any changes coming the bond market in the near future. Mr. Dennis Hunt, Stevens Inc., stated they Fed Fund rate had not been changed. Most analysis believe that it will be at least until August. They will have this transaction completed prior to that date if there were any changes in the Fed Fund rate. In response to questions, he stated they would do duel tracking. They will apply for a rating on this issue. They will analyze how the bonds could be marketed with that particular rating and analyze that against the cost of bond insurance premium. Whichever would be the most economically advantageous to the city that was what they would recommend to the city. Mayor Coody asked shall the ordinance pass. Upon roll call the ordinance passed unanimously. ORDINANCE 4309 AS RECORDED IN THE OFFICE OF THE CITY CLERK. • SALES AND USE TAX: An ordinance providing for the levy of a one percent sales and use tax and • providing for an expiration date for such replacement Sales and Use Tax of June 30, 2013. Mayor Coody stated the city was currently collecting this money. They started this in 1993 with a sunset in 2003. this one penny brought in between twelve and thirteen million dollars per year. This helped fund their fire and police. This would bean ongoing tax, that they collected currently. This was not a new tax. This tax would start at the sunset of the pervious one. There would not be any overlap. Alderman Davis stated he had not seen the ordinance that had been passed in 1993. Did this read verbatim to what was done at that time or had changes had been made. Mr. Williams stated he had reviewed the previous ordinances and then looked at the current law, which had not changed significantly. There had been some minor changes on how they defined a single transaction. This ordinance tracked very closely with their previous ordinance. Mr. Williams read the ordinance for the first time. Mr. Pete Reagan, President of the Fayetteville Firefighters Local Association, stated in 1999 the Insurance Services Office preformed a fire defense analysis of the Fayetteville Fire Department. They had been able to keep their ISO Rating of 4, but the report brought to light the realities we realized for the last fifteen years. That reality is that they have not grown with the rest of the city. • They were not able to meet their goal of the four minute response times. Their resources have been stretched thin. In 1963 the city had four fire stations, twenty-nine years ago. In 1978 they added a fifth fire station, that was twenty-four years ago. Today they still served their city with five fire stations. He was not sure how many runs they made twenty-nine years ago, but they are anticipating 5,000 runs this year. The 1999 ISO Report gave them a rating of 1.82 out of a possible 4 points for fire station locations. This was less than fifty percent of the possible points. What they were saying was that they did not have enough firefighters, apparatus, or fire stations. The International Association of Firefighters preformed a graphic information study on their city this year. They have seen the draft and they were saying the same thing. They were short firefighters, fire apparatus and fire stations. National Fire Protection Code 1710 recommends a minimum staffing on an engine company with four persons and a minimum staffing of a latter company of four persons. Unless they existed a high target area or high raise complex, such as the University of Arkansas. They then recommended five to six personnel per company. They were currently staffed with three. They were in desperate need of at least three new fire stations with apparatus, forty-five firefighters and a fully equipped reserved apparatus both engines and trucks. Their new fire chief had the insight to build the Fayetteville Fire Department into the best fire department in the State of Arkansas. They could not build this department without money and it will take millions of dollars to accomplish this. He was representing all eighty-three members ofthe Fayetteville Fire Department to ask them to support the one -cent sales tax. Without it there would be fire station closings and firefighters will be laid off their jobs. Chief Bosh stated the Fire Department was working diligently to ensure that they provide a • comprehensive blank of public safety and fire service and rescue services. They were in the process of working on their strategic plan for their organization which will help them to address the needs of their community. They were in need of additional personnel and station resources. Detective Tad Scott, President of the Fraternal Order of Police, stated he understood the dire situation that the city was going to be in without the restructuring of the sales tax. He wanted to express their support in favor of the restructuring as well as the election for the sales tax. It concerned him, not just as a police officer, but his fellow employees and citizens. It also affected their ability to maintain their quality of service. Chief Rick Hoyt, stated in 1993 when this tax was first passed, they began the job of building up the police department and adding police officers. They were not in as bad of shape as the Fire Department because they had been able to take advantage of Federal Grants that they have not had. He has been involved with the budget process since 1986, this years budget was the roughest one that he has ever been involved in. They had come to the end of the money. They could not afford to let this tax go by without getting passed. The police department uses approximately twenty-eight percent of the General Fund. They were a big user. if they did not have the money from the sales tax next year to operate, it would mean jobs and public safety would suffer. He had taken a call last week from a man who wanted to know why it had taken the police twenty-five minutes to get to the day care center where there was a custody dispute going on. When he checked on the call, he found that it had not been twenty-five minutes; it had been fifty minutes. They only had seven officers on the street and every one of the officers was busy. They were all on high priority calls. They track what they called Code Zero. That meant, every time a citizen called and needed a police officer and they did not have any, because they were all busy. For a one-year period, they would have • approximately one thousand Code Zeros. They tracked them by priority. Two or three hundred of those will be high priority calls. They did not add any personnel this year, but the citizens still needed the police. The needed this tax because they had to keep moving forward. Alderman Davis stated currently the sales tax was distributed 25% general fund and 75% CIP. What was this administrations view on this? Mayor Coody stated he knew they needed to restructure. What worked in 1993 does not work for 2002. They had plenty of money in Capitol and not enough money in operations. They could build a couple of fire stations, but they could not afford to staff them. Mr. Steve Davis stated he had not updated the projections from the November briefing. In November they had produced a briefing for city council which indicated that they would use approximately 1.9 million dollars in reserves to fund 2002 operations. Our adopted budget uses 1.879 million. Based on where their spending totals were and based on where their revenue projects are for the 2002 budget, the essential elements for the briefing in November indicated that a minimum split of 50/50 would fund General Fund ongoing operation through 2006. In 2006 they would use approximately $400,000 of reserves to fund the ongoing operations. Mayor Coody stated they did not have a formal position yet, but they had been discussing approving a 50/50 split with the option to review after five years to see if it was still a valid approach or not. In 1993, they did not project what the world would look like in 2003 and they did not allow any flexibility to be able to maintain a good relation ship between operations and the Capital expenditures. They would like to have some flexibility down the road. Mr. Davis stated from 1990 through 2000, they had experienced a greater then twenty-five percent increase in population. With that kind of growth, it was hard to set hard and fast number early in the game. It was his recommendation that the council give themselves some flexibly, especially in the last five years of this tax. Alderman Young asked how they would restructure this. All the ordinance called for was the reallocation of the tax. Mr. Williams stated the resolution that was passed by the city council in 1993, those sorts of resolutions, were not enforceable from a constitutional point of view or legal point of view. It was a moral commitment by the city council. It was the guarantee that city council and mayor gave to the voters. He suggested another resolution similar to the one passed back then. It did not have firm legal affect, but he thought it will be enforced just like this one had been. Alderman Young asked why the resolution had not been prepared for tonight. Mr. Williams did not believe they should pass the ordinance tonight. He did not believe it was his place to start pulling out percentages or length of time. This was a council decision for them. Alderman Davis stated a lot of people had approached him on this and they would like to know the split between the operational and capital. A lot of people looked at this as being brick and mortar. . They needed to let the population and let them know what their split was going to be. Alderman Young stated the proportion should be up to the mayor. It was his proposal. Mayor Coody stated what he would propose would be a 50/50. They have not come up with a stance because they were wanting to take input from the council. Alderman Young stated the public needed to know exactly what they were voting on. Alderman Thiel stated they needed to draft a resolution with the percentage on there, then they could debate this and take public comment. Mr. Williams asked if they supported a 50/50 split for the first five years of this tax, 2008 and/or if there is to be any modification. What did they want him to put into the resolution? Alderman Thiel stated she agreed they should review it after five years. ORDINANCE WAS LEFT ON THE FIRST READING. 0 SPECIAL ELECTION: An ordinance calling for a special election on the question of levying a one • percent Sales and Use Tax within the City of Fayetteville, to replace the one percent Sales and Use Tax expiring on June 30, 2003 and providing for an expiration date for such tax of June 30, 2013. Mr. Williams read the ordinance for the first time. Alderman Thiel stated they needed to have the election in July in order to give them enough time to do their budget for next year. ORDINANCE WAS LEFT ON THE FIRST READING. RZN 02-9.00: An ordinance approving rezoning RZN 02-9.00 as submitted by Julian and Jane Archer for property located at 2231 Markham Road. The property is zoned R-1, Low Density Residential and contains approximately 18.80 acres. The request is to rezone to A-1, Agricultural. Mr. Conklin stated the Archers have offered a bill of assurance limiting the use of the property to the uses allowed in A-1 zoning district and limits certain uses within that district. Use Unit 8 will be limited to single-family homes, no manufactured homes. Use unit 7 was also limited, Use unit 6 was eliminated. Basically, the Archers would like to reestablish a barn on the property and bring in horse and other type of live stock for their own personal use. Alderman Santos stated the Archers use to have a horse, but it died and they were wanting to get another horse and to build a barn for it. This would help preserve the mountain top. • Alderman Davis asked if this ran with the owner or the land. Mr. Conklin stated it ran with the land. Alderman Davis moved to suspend the rules and move to the second reading. Alderman Davis seconded. Upon roll call the motion carried unanimously. Mr. Williams read the ordinance. ORDINANCE WAS LEFT ON THE SECOND READING. RZN 02-12.00: An ordinance approving rezoning request RZN 02-12.00 as submitted by Julian and Jan Archer for property located at 2231 Markham Road. The property is zoned R-1, Low Density Residential and contains approximately 4.10 acres. The request is to rezone to A-1, Agricultural. Mr. Williams read the ordinance. Alderman Davis moved to suspend the rules and move to the second reading. Alderman Jordan seconded. Upon roll call the motion carried unanimously. • Mr. Williams read the ordinance. ORDINANCE WAS LEFT ON THE SECOND READING. • VA 02-1.00: An ordinance submitted by Greg Brockman for property located north of 15th Street and west of Duncan Streets the request is to vacate a 30' side portion ofan unimproved Price Avenue right-of-way. Mr. Williams read the ordinance. Alderman Thiel stated half of this right-of-way had been vacated. Alderman Davis moved to suspend the rules and move to the second reading. Alderman Reynolds seconded. Upon roll call the motion carried unanimously. Mr. Williams read the ordinance. Alderman Jordan moved to suspend the rules and move to the third and final reading. Alderman Reynolds seconded. Upon roll call the motion carried unanimously. Mr. Williams read the ordinance. Mayor Coody asked shall the ordinance pass. . ORDINANCE 4390 AS RECORDED IN THE OFFICE OF THE CITY CLERK. PLANNING COMMISSION APPEAL: Appeal of a Planning Commission Decision regarding LSD 02-7.00 for property located at the southwest comer of Fletcher Avenue and Rodgers Drive. Alderman Santos moved to table the item until the second meeting in June. Alderman Jordan seconded. Upon roll call the motion carried unanimously. APPEAL WAS TABLED UNTIL THE JUNE 18, 2002 MEETING. WATER MAIN REPLACEMENT: A resolution to budget the 1.5 million of Water and Sewer Operating Funds reimbursed from Bond Proceeds, towards accelerated water main replacement activities, including approval of a budget adjustment and an addition to the fiscal year 2002 Capital Improvements Program. Mr. Boetcher stated they had been using water system revenues to cash flow their wastewater improvement costs. Recently, they had obtained a reimbursement of those expenditures totally about 1.5 million dollars from the bonds that they had passed. In looking at their water system, they had approximately 525 miles of water main and about seventy-five thousand customers, tarring thirteen million gallons per day. They were fmding their loses were running a little high. They were losing about twenty percent of water on an annual basis of the water that they purchase. They should be down in the fifteen percent range. They were not keeping up with the maintenance of the system. They were not replacing the lines at the same rate that they were aging. Their current in-house • program, they targeted 8,000 feet of water main to replace in 2002. at that rate it would be three hundred and forty years before they replaced it again. They felt it was important to reinvest this 1.5 • million back into the system. They had about fifty water main projects that have been identified where they need replacements. They would be outsourcing the design to an engineer, but they would be defining what they wanted designed and minimize the administrative costs. Most of the money they were asking for here would go into actual construction to replace water lines. Alderman Santos moved to approve the resolution. Alderman Jordan seconded. Upon roll call the motion carried unanimously. RESOLUTION 78-02 AS RECORDED IN THE OFFICE OF THE CITY CLERK. BURNS AND MCDONNELL: A resolution to approve an agreement with Bums and McDonnell to perform program management services in connection with the Wastewater System Improvement Project. Mayor Coody stated they did not have the staff to do this in-house. This has been through the selection process. They wanted to put everything regarding this project on the web. All the information will be on the web and accessible. They would be the central clearing house for this entire project. All communications will be electronic and public. Mr. James Foil and Mr. Jerry Sondrager??? • Mr. Foil stated gave an overview of their company and the scope of services that they provide. Mr. Sondrager??? stated they provide professional liability insurances and other insurances. They understood the scope and the cost of this project as set out in the contract. There would not be a change in the scope or the cost without prior written approval of the City Council. The overall scope of this project was to provide coordination between all of the various consultants. There were four to five major consultants and major projects within this one. It will be their task to ensure the coordination among those and to make sure that they were all working toward a common goal. It was very important to note that what they were hiring them to do was to act as an extension of their owner's staff. The owner did not have the staff to coordinate or manage a project of this size. They will be identifying the status of existing contracts. There were a number of contracts in place. They will then develop a program schedule and budget for the overall program. They will develop a steering document with a phasing plan. They would be able to coordinate the four to five designs and indicate what needed to be done first, etc. They would also control the cost of the overall project. Alderman Young asked if the city would get a copy of the Cad standards. Mr. Sondrager replied yes. Alderman Young asked if there would be another contract for construction or would they amend this contract for construction. • Mr. Sondrage stated it would be up to the city council. The way the contract was written at this point, it was a stand alone project. The contract was written for predesign services only. If the council wished, the design services would follow that, followed by the construction phases. Mr. Boetcher stated they would develop standards so all the construction and design contracts will be the same. They were trying to get the project started off the a lot of uniformity and togetherness. It would allow the city to have one set of standard contract forms, plan layouts, sheet drawings. To put the whole thing together. They did not include any subsequent phases. For the councils information, there were subsequent services that they will have to negotiate with some firm, which included value engineering, construction phase services, and design phase services were not included. He had felt it was appropriate to negotiate this phase of the work to get them off to a good start. If they have a successful relationship, they can negotiate another contract or an amendment, what ever was fitting. Alderman Davis moved to approve the resolution. Alderman Young seconded. Mr. Erf stated he thought it was a good idea to hire them. He asked if they would provide a web site ready information from their presentations. Mr. Foil stated the active project software that they used allowed them to a variety of levels of security. Parts of it could be opened to the public, some could be reserved by access to the engineering firms. They could put a lot of documents on the web site and have it available to the public in whatever format would be appropriate. • Upon roll call the motion carried unanimously. RESOLUTION 79-02 AS RECORDED IN THE OFFICE OF THE CITY CLERK. RAZE AND REMOVAL: A resolution approving a raze and removal of house at 1200 S. Roberts as per Ordinance 3948. Mayor Coody stated this was a public hearing on the raze and removal. Ms. Cora Langford, owner, stated she had lived there for thirty-four years. The house was run down, but she was in the process of selling it. The residence was not currently livable. Alderman Reynolds asked if the buyers were going to tear the house down. Ms. Langford stated it was her understanding that they were going to tear the house down. Mr. Ernest stated the city had been contacted by loan officers with Arvest Bank; and Mr. and Mrs. Ray Aired. Their recommendation was that the council pass the resolution which required a raze and removal of the house. It was a house that needed to be removed for public health and safety. They have moved very slowly on this in order to make sure that they notified every one. Alderman Young stated he would be in favor of tabling this until the second meeting in June to give • them time to close on the house. Alderman Reynolds stated even though she was selling this property, they would like to have a time limit for the house to be torn down in. He did not want the buyer to think he had time to fix this up. He wanted to make it clear to the buyer that he was buying a lot. This house needed to make sure the house was torn down. Alderman Davis stated he did not want them to do this and give her a bill for something that was not included in the sale price. He did not want to take any money out of her pocket. Alderman Young moved to table the item until June 18. Alderman Davis seconded. Upon roll call the motion carried unanimously. RESOLUTION WAS TABLED UNTIL THE JUNE 18, 2002 MEETING. RURAL FIRE CONTRACTS: An ordinance amending the Code of Fayetteville to establish annual fees for Rural Fire Contracts for a two year period from June 1, 2002 through May 31, 2004. Mr. Williams read the ordinance. Chief Bosh stated they had offer service by contract. They had an individual contact and an association contract. On an individual contract they were losing about $87.00, an association membership they were losing $300 per response. This ordinance and fee increase will simplify the process. One fee fits all. There would be no associations. This would help them recover some the . costs that they did inure when they responded outside the city. This was a voluntary agreement. No one was forced to sign a contract with the city. Alderman Santos moved to suspend the rules and move to the second reading. Alderman Jordan seconded. Upon roll call the motion carried unanimously. Mr. Williams read the ordinance Alderman Santos moved to suspend the rules and move to the third reading. Alderman Jordan seconded. Upon roll call the motion carried unanimously. Mr. Williams read the ordinance Mayor Coody asked shall the ordinance pass. Upon roll call the ordinance passed unanimously. ORDINANCE 4391 AS RECORDED IN THE OFFICE OF THE CITY CLERK. MEETING ADJOURNED AT 8:45p. m. 0 I CITY OF FAYETTEVILLE 113 W MOUNTAIN/PERSONNEL FAYETTEVILLE AR 72701 ATTN: HEATHER DATE : 05/18/02 INVOICE #: 3122 ACCT #: L5004205 P.O. #: COUNTY OF PULASKI, I ss. I, Elizabeth Myers do solemnly swear that I am the Legal Billing Clerk of the Arkansas Democrat - Gazette, a daily newspaper printed and published in said County, State of Arkansas; that I was so related to this publication at and during the publication of the annexed legal advertisement in the matter of: ORD 4389 pending in the Court, in said County, and at the dates of the several publications of said advertisement stated below, and that during said periods and at said dates, said newspaper was printed and had a bona fide circulation in said County; that said newspaper had been regularly printed and published in said County, and had a bona fide circulation therein for the period of one month before the date of the first publication of said advertisement; and that said advertisement was published in the regular daily issues of said newspaper as stated below. DATE DAY LINAGE RATE DATE DAY LINAGE RATE 05/18 Sat 559 1.00 TOTAL COST ------------------- ---i Billing Ad #: 7403379 sN F. NOTARY a..\PUBLIC ¢ REMIT TO: ARKANSAS DEMOCRAT -GAZETTE, INC. P.O. BOX 2221 LITTLE ROCK, AR 72203 05-22-02 BILLING QUESTIONS CALL 378-3812 AD COPY RECEIVED MAY 22 2002 CITY OF FAYETTEVILLE CITY CLERK'S OFFICE 0:28 RCVD i . • [J CERTIFICATE OF RECORD State of Arkansas City of Fayetteville if as. 1, Heather Woodruff, City Clerk/Treasurer for the City of Fayetteville, do hereby certify that the foregoing instrum t Is tr a and cor act copy of the original �� a 7 filed in my office on t e a0- day of 7- Witness my hand and seal is.ZQday of 7 Heather Woodruff, CM CIerIt/f urer . EXHIBIT D COSTS OF ISSUANCE Bond Counsel Fee and Expenses (estimated through closing and transcript preparation) Kutak Rock LLP 425 West Capitol Avenue, Suite 1100 Little Rock, AR 72201 Rating Fee Standard & Poor's Corporation 2542 Collection Center Drive Chicago, IL 60693 Trustee Acceptance Fee Simmons First Trust Company, N.A. 501 Main Street Pine Bluff, AR 71601 Official Statement Printing Document Solutions 400 West Capitol Avenue Little Rock, AR 72201 • Preliminary Official Statement Official Statement Underwriting Expenses Stephens Inc. 3425 North Futrall Drive, Suite 201 Fayetteville, AR 72703 Total: CI Reimbursement for Ordinance Publication Expenses City of Fayetteville 113 West Mountain Fayetteville, AR 72701 Attn: Administrative Services Director $1,131.51 334.43 $50,000.00 12,800.00 2,000.00 1,465.94 1,485.72 $6735 1.66 Amount to be determined 10-36632.01 D-1 KUTAK T A K ROCK LLP Check Remit To: • LITTLE ROCK, ARKANSAS Kutak Rock LLP Telephone 501-975-3000 PO Box 30057 Facsimile 501-975-3001 Omaha, NE 68103-1157 Federal ID 47-0597598 June 20, 2002 City of Fayetteville 113 West Mountain Fayetteville, AR 72701 Wire Transfer Remit To: ABA # 104000016 First National Bank of Omaha Kutak Rock LLP A/C # 24-690470 Matter No. 1123401-7 $25,000,000 CITY OF FAYETTEVILLE, ARKANSAS SALES AND USE TAX CAPITAL IMPROVEMENT BONDS SERIES 2002 For Professional Legal Services Rendered as Bond Counsel in connection with the issuance of $25,000,000 City of Fayetteville, Arkansas Sales and Use Tax Capital Improvement Bonds, Series 2002 $47,500.00 Estimated expenses through Closing and Transcript Distribution 2,500.00 TOTAL FEES AND ESTIMATED EXPENSES DUE $50.000.00 06/18/02 TUE 13:16 FAX 5017187490 • Standard & Poor's A Uivifimt.(l leAfG.m.-flUJ agmdes MR. DENNIS HUNT STEPHENS INC. 3425 NORTH FUTRALL DRIVE STE 201 FAYETTEVILLE AR 72703 i L 1 STEPHENS NW AR Standard & Poor's Ratings Services Fedasl I.D.: 13-10x4995 Services Provided To: 1004 Invoice No.: 225785 Acct. No.: 1000012791 Date: 06/11/02 Pape: 1 Purchase Order: MR. DENNIS HUNT STEPHENS INC. 3425 NORTH FUTRALL DRIVE STE 201 FAYETTEVILLE AR 72703 101015 ANALYTICAL SERVICES RENDERED IN CONNECTION WITH: $12,800.00 USD 125.000,000 City of Fayetteville. Arkansas, Sales and Use Tax Capital Improvement Bonds, Series 2002, dated: June 1, 2002, due: June 1, 2007 [Fee Discounted For Frequent Issuance] FOR INQUIRIES CONTACT: KIMBERLY SHERRITON TEL:1-800.767-1896 EXT $3 FAX:1.212.438-5178 kimberlsherritorAsandp:com Spacial Instructions MR. DENNIS HUNT STEPHENS INC. 3425 NORTH FUTRALL DRIVE STE 201 FA.YETTEVILLE AR -72703 10000127912 0225785 01280000 1 700 10 07 0602 7 TOTAL STANDARD AND POOR'S 2542 COLLECTION CENTER DRIVE CHICAGO, IL 80693 TOTAL AMOUNT DUE AMOUNT - $12.800.00 USD ENCLOSED VU! 591 VS LUG 1J.11 m A JVLI SV 1YVV Jsct LLL11J 1111 nn 1td VVI Sent By: HP LaserJet 3100; 4795758241; 13 -May -02 9:38AM; Page 5/5 City of Fayetteville, Arkansas Trustee and Paying Agent Fee Schedule 100,000,000 City of Fayetteville, Arkansas Soil & Water Commission Revolving Loan Program (14 year maturity) Authentication Fcc $ 2,000.00 Annual Administration $ 2,500.00 Plus an additional $500.00 per year if trustee will be handling construction funds Acceptance & Registration Included in Authentication Fee Legal & Additional Fees or Charges Dissemination of financial material to NMSIRS annually $100.00 If 5 copies of financials arc not provided Any out of pocket expenses or required consultation with Trustee Council will be passed on at cost. Paying Agent Fees Included in Annual Administration a%rov-al .391100,000 City of Fayetteville, Arkansas (5 year maturity) Authentication Fee $ 2,000.00 Annual Administration s i,}gp,gg l a a-4 m Plus an additional $500.00 per year if trustee will be handling construction funds Acceptance & Registration Included in Authentication Fee Legal & Additional Fees or Charges Dissemination of financial material to NMSIRS annually $100.00 If 5 copies of financials are not provided Any out of pocket expenses or required consultation with Trustee Council will be passed on at cost. Paying Agent Fees Included in Annual Administration Duly Certified and Authorized this 12o Day of April 2002. t Trust Co n N.A. • We L Dean, rporate Trust Officer 06/18/02 TUE 13:16 FAX 5017187490 FROM 'b3 FAX NO. :5013768001 DOCUMENT SOLUTIONS 4O0W. Capitol. We. 1840 Utue Rock, A*wv4 s 72201 Phone: (501) 3768000 Fez (501) 376-8001 O1D7C STEPHEN'S INC. 111 CENTER STREET, SUITE 2300 LITTLE ROCK AR 72201 ORDERED BY: DENNIS STEPHENS NW AR _ X005_ Sun, 12 2002 1�:31N P1 PLEASE PAY FROM THIS INVOICE INwtcE DT $ 06/12/02 INvrncE NUMBER: £2349 ----- UfTCI ICWILtfW NET30 200 QUANTITY REM NUMBER DESCRIP110N UTIR PRiC@ EXTENSION 6,710 405 STRAIGIir RUN 0.050 335.50 184 426 COLOR COPIES 0.990 182.16 184 455 G.B.C, COMB BINDING 2.000 368.00 1 500 POSTAGE 171.500 171.50 49 476 STUFF, SEAL, APPLY LABEL 8 POS rAGE 0.300 14.70 1 { L, l2 Item I: 1,071.88 Sales T , 5965 Shippin : 0.00 THANK YOU FOR CHOOSING DOCUMENT SOLUTIONS dlnfl 1131.51 �, i•.ote. nn P.iu Within So 4.ee, . R. Pv,e (S'% o..... C.,.1. Ln be nAAM • 06)12/02 RED 10:27 (TI/RI No 5261) I Zoo/too In H'TIIASLT3Xe3 C.. JNI SN3Wd3T¢ P)OZLLC T08A cn:/T 7n/nTi.n 06/18/02 TUE 13:17 FAX 5017187490 06/18/02 08:29 '@501 3772044 j soLUTTON3...: I ___ nwp,e.y i • DOCUMENT SOLUTIONS 400 W. Capital, Ste. 1640 Little R«k, k*ansas 72201 Phone; (501) 370-8000 Fat (501) 376.8001 SOLD TO: STEPHEN'S INC. 111 CENTER STREET, SUITE 2300 LITTLE ROCK, AR 72201 ORDERED BY: MICHELLE STEPHENS NN AR - ID 008 _ STEPHENS INC. +.. FAiEIT5VILLE ®0a1/oo1 PLEASE PAy FROM THIS INVOICE INVOICE DOE: 06/17/02 INVOICE NUMBER; 52515 30 •200 QUANTITY ITEM NUMBER DESCRIPTION UNITPRICE EXTENSION 3,423 405 STRAIGHT RUN • 0050 171.15 95 454 FASTBACK BINDING - 1.500 142.50 Item T : 313.65 Sales T 20.78 Shlppin : 0.00 £O tsl 334.43 HANKYOII P0R CHnnclsn nncluinrr en r rmnue Y bw.k, 11 net paid w0un30 dams Ri.e Pet as 6rN finance 4w9. nca be bdom. •1 Zd t4d9£:£e Z002 LT 4'f T0e99L£TOS! W )OiJ Sc: 41021d 06/18/02 TUE 13:15 FAX 5017187490 STEPHENS NW AR 1003 0 • Stephens Inc. COST OF ISSUANCE STATEMENT $25,000,000 City of Fayetteville, Arkansas Sales and Use Tax Capital Improvement Bonds, Series 2002 Clearing: Cusip Service Bureau DTC Misc. (Fcderal Express, Ticket Charges) Day Loan Total Expenses $ 225.00 343.80 215.36 701.56 $1,485.72 Investment Bankers w hcn 3425 North Futrell Drive Suite 201, Fayeneville, Arkansas 72703 501-718-7400 Fax 501-718-7490 800-20-8613 Form 8038-G Information Return for Tax -Exempt Governmental Obligations ► Under Internal Revenue Code section 149(e) ( ) OMB No. 1545-0720 (Rev. November 2000) ► See separate Instructions. • me internal ev f the ereasury Caution: lithe issue rice is under $100.000, use Form 8038 -GC. Internal Revenue TreceIeimuI (� Reporting Authority If Amended Return, check here ► F 1 Issuer's name 2 Issuer's employer identification number City of Fayetteville 71 : en,paco 3 Number and street (or P.O. box if mail is not delivered to street address) Room/suite 4 Report number 113 West Mountain Street 3 02-2 5 City, town, or post office, state, and ZIP code 6 Date of issue Fayetteville, AR 72701 6120/02 7 Name of issue 8 CUSIP number Sales and Use Tax Capital Improvement Bonds, Series 2002 312673CP9 9 Name and title of officer or legal representative whom the IRS may call for more information 10 Telephone number of officer or legal representative Gordon M. Wilbourn, Esq. ( 501 1 975-3000 Type of Issue (check applicable box(es) and enter the issue price) See instructions and attach schedule 11 LJ Education - 12 ❑ Health and hospital . . . . . . . . . . . ' RECEIVED 13 ❑ Transportation . . . . . . . . tn, 14 ❑ Public safety. ) LN,"7, ZgQ2 IO 15 1 Environment (including sewage bonds) . . . . . - J(D 16 ❑ Housing . . . . . . . . . . ... t J �✓ 17 ❑ Utilities o )DEN U 18 ❑ Other. Describe ► 19 If obligations are TANs or RANs, check box ► ❑ If obligations are BANs, check box ► ❑ 20 If obligations are in the form of a lease or installment sale, check box ► ❑ 11 12 13 14 15 25,3 16 p 18 ImuHI Description of Obligations. Complete for the entire issue for which this form is being filed. (a) Final maturity date tb) Issue price (c) stated redemption price at maturity (d) Weighted average maturity (e) Yield 21 6-1-07 $ 25,388,106 $ 25,000,000 2.557 years 2.i Uses of Proceeds of Bond Issue including underwriters' discount 22 Proceeds used for accrued interest . . . . . . . . . . . . . . . . . 23 Issue price of entire issue (enter amount from line 21, column (b)) . 24 Proceeds used for bond issuance costs (including underwritersdiscount) 24 250,000 25 Proceeds used for credit enhancement . . . . . . . . . . 25 -0- 26 Proceeds allocated to reasonably required reserve or replacement fund 26 1,250,000 27 Proceeds used to currently refund prior issues . . . . . . . . 27 -0- 28 Proceeds used to advance refund prior issues . . . . . . . . 28 .0- 29 Total (add lines 24 through 28) . . . . . . . . . . . . . . . 30 Nonrefunding proceeds of the issue (subtract line 29 from line 23 and enter amount heral 22 23 25,31 1,5( 29 an n ar 106 31 Enter the remaining weighted average. maturity of the bonds to be currently refunded . . . ► years 32 Enter the remaining weighted average maturity of the bonds to be advance refunded . ► years 33 Enter the last date on which the refunded bonds will be called . . ► 34 Enter the date(s) the refunded bonds were issued ► . _ .a:---" ------- 35 Enter the amount of the state volume cap allocated to the issue under section 141(b)(5) . 35 36a Enter the amount of gross proceeds invested or to be invested in a guaranteed investment contract (see instructions) 36a b Enter the final maturity date of the guaranteed investment contract ► 37 Pooled financings: a Proceeds of this issue that are to be used to make loans to other governmental units •37a b If this issue is a loan made from the proceeds of another tax-exempt issue, check box ► ❑ and enter the name of the issuer ► and the date of the issue ► 38 If the issuer has designated the issue under section 265(b)(3)(B)(i)(III) (small issuer exception), check box . . . ► ❑ 39 If the issuer has elected to pay a penalty in lieu of arbitrage rebate, check box . . . . ► ❑ 40 If the issuer has identified a hed e, check box ► ❑ Under penalties of perjury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge and belief, they are true, correct, and complete. ign ere I V Signature of issuer's authorized representative For Paperwork Reduction Act Notice, see page 2 of the 0 �U—vc Dan Coody, Mayor Date ' Type or print name and title is. Cat. No. 637735 Form 8038-G (Rev. 11-2000) KUTAK ROCK LLP ATLANTA CHICAGO SUITE 11OO • DENVER 425 WEST CAPITOL AVENUE KANSAS CITY LINCOLN LITTLE ROCK, ARKANSAS 722O1 -34 O9 NEWPORT BEACH OKLAHOMA CITY 5O1-975-3OOO OMAHA FACSIMILE 5O1-975-3OO1 PASADENA www.kutakrock.com RICHMOND SCOTTSDALE WASHINGTON GORDON M. WILBOURN June 20, 2002 gordon.wilboum®kuubock.com (501)975-3101 VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED Receipt#70993400001583546664 Internal Revenue Service Center Ogden, Utah 84201 $25,000,000 City of Fayetteville, Arkansas Sales and Use Tax Capital Improvement Bonds Series 2002 Ladies and Gentlemen: I have enclosed for filing an original and one copy of Form 8038-G, with respect to the above -captioned matter. Please return the copy, showing your file mark, in the enclosed prepaid, self-addressed envelope. Very truly yo b Gordon M. Wilbourn paj Enclosures 10-37039.01 • • EXECUTION COPY CITY OF FAYETTEVILLE, ARKANSAS to SIMMONS FIRST TRUST COMPANY, N.A. as Trustee TRUST INDENTURE Dated as of June 1, 2002 Providing for: $25,000,000 City of Fayetteville, Arkansas Sales and Use Tax Capital Improvement Bonds Series 2002 Prepared by: Kutak Rock LLP • 425 West Capitol Avenue, Suite 1100 Little Rock, Arkansas 72201 10-34187.07 TABLE OF CONTENTS (This Table of Contents is not a part of the Trust Indenture and is only for convenience of reference.) Page No. Parties.............................................................................................................................................. 1 Recitals............................................................................................................................................ 1 GrantingClauses............................................................................................................................. 2 ARTICLE I DEFINITIONS Section101. Definitions........................................................................................................ 4 Section 102. Use of Words................................................................................................. 11 ARTICLE II THE BONDS • Section 201. Security for the Bonds................................................................................... 11 Section 202. Authorized Amount....................................................................................... 12 Section 203. Details of Series 2002 Bonds......................................................................... 12 Section204. Form............................................................................................................... 12 Section205. Payment.......................................................................................................... 12 Section206. Execution....................................................................................................... 13 Section 207. Authentication................................................................................................ 13 Section 208. Delivery of the Bonds.................................................................................... 13 Section 209. Mutilated, Destroyed or Lost Bonds.............................................................. 14 Section 210. Registration and Transfer of Bonds............................................................... 15 Section 211. Cancellation................................................................................................... 16 Section 212. Additional Bonds and Drawdowns Under RLF Loans..................................16 Section 213. Superior Obligations Prohibited.................................................................... 17 Section 214. [RESERVED]................................................................................................ 17 Section 215. Temporary Bonds........................................................................................... 17 Section 216. Book -Entry Bonds; Securities Depository ..................................................... 17 ARTICLE III REDEMPTION OF BONDS BEFORE MATURITY Section 301. Redemption of Series 2002 Bonds................................................................. 18 • Section302. Notice............................................................................................................. 19 Section 303. Selection of Bonds to be Redeemed.............................................................. 19 Section 304. Surrender of Bonds Upon Redemption..........................................................20 10-34187.07 Section 305. Redemption in Part ........................................................................................ 20 • Section 306. Redemption of Additional Bonds.................................................................. 20 ARTICLE IV GENERAL COVENANTS AND REPRESENTATIONS Section 401. Section 402. Section 403. Section 404. Section 405. Payment of Principal, Premium, if any, and Interest ..................................... Performance of Covenants............................................................................. Instruments of Further Assurance.................................................................. Recordation and Filing................................................................................... Inspection of Books....................................................................................... 20 21 21 21 21 Section Section Section Section 406. 407. 408. 409. Tax Covenants............................................................................................... Trustee's and Paying Agent's Fees and Expenses ......................................... Construction of Project; Certification of Completion Date ........................... Encumbrances................................................................................................ 21 22 22 22 Section 410. Continuing Disclosure................................................................................... 22 Section 411. Drawdowns Under RLF Loans...................................................................... 23 ARTICLE V FUNDS AND DEPOSITS • Section 501. Creation of Funds and Accounts ........................... Section 502. Project Fund.......................................................... Section 503. Revenue Fund ....................................................... Section 504. Bond Fund............................................................. Section 505. Cost of Issuance Fund ........................................... Section 506. Redemption Fund .................................................. Section 507. Rebate Fund.......................................................... Section 508. Debt Service Reserve Fund ................................... Section 509. Cessation of Fund Deposits .................................. Section 510. Separate Accounts Authorized. ............................. CJ ARTICLE VI INVESTMENTS ........................................ 23 ........................................ 23 .............. P.....................4... 24 .............................4.......... 25 ........................................ 26 .................................... 26 ................................4.27 ........................................ 27 ..................................4..... 28 .......................................A 28 Section Section Section 601. 602. 603. Investment of Moneys.................................................................................... Investment Earnings............ Valuation of Funds......................................................................................... 29 29 29 Section 604. Responsibility of Trustee............................................................................... 30 10-34187.07 ii 0 ARTICLE VII DISCHARGE OF LIEN Section 701. Discharge of Lien........................................................................................... 30 Section 702. Bonds Deemed Paid....................................................................................... 30 Section 703. Non -Presentment of Bonds............................................................................ 30 ARTICLE VIII DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND BONDHOLDERS Section 801. Events of Default........................................................................................... 31 Section 802. Acceleration................................................................................................... 32 Section 803. Other Remedies; Rights of Bondholders....................................................... 32 Section 804. Right of Bondholders to Direct Proceedings ................................................. 32 Section 805. Appointment of Receiver............................................................................... 33 Section806. Waiver............................................................................................................ 33 Section 807. Application of Moneys.................................................................................. 33 Section 808. Remedies Vested in Trustee........................................................................... 34 Section 809. Rights and Remedies of Bondholders............................................................ 34 Section 810. Termination of Proceedings........................................................................... 35 Section 811. Waivers of Events of Default......................................................................... 35 • ARTICLE IX TRUSTEE AND PAYING AGENTS Section 901. Acceptance of Trusts...................................................................................... 35 Section 902. Fees, Charges and Expenses of Trustee and Paying Agents; Trustee's Section Section Section Section Section 903. 904. 905. 906. 907. PriorLien....................................................................................................... Additional Duties of Trustee.......................................................................... Notice to Bondholders of Default.................................................................. Intervention by Trustee.................................................................................. Merger or consolidation of Trustee............................................................... Resignation by Trustee.................................................................................. 37 38 39 39 39 39 Section Section Section Section Section Section 908. 909. 910. 911. 912. 913. Removal of Trustee........................................................................................ Appointment of Successor Trustee................................................................ Concerning Any Successor Trustee............................................................... Reliance Upon Instruments............................................................................ Appointment of Co-Trustee........................................................................... Designation and Succession of Paying Agents .............................................. 39 40 40 40 40 41 • l0-34I8zW . iii C ARTICLE X SUPPLEMENTAL INDENTURES Section 1001. Supplemental Indentures Not Requiring Consent of Bondholders ................ 42 Section Section 1002. 1003. Supplemental Indentures Requiring Consent of Bondholders ....................... Effect of Supplemental Indentures................................................................. 42 43 ARTICLE XI MISCELLANEOUS Section 1101. Consents, etc. of Bondholders....................................................................... 43 Section1102. Notices........................................................................................................... 44 Section 1103. Limitation of Rights....................................................................................... 44 Section1104. Severability.................................................................................................... 44 Section 1105. Applicable Provisions of Law........................................................................ 45 Section1106. Counterparts................................................................................................... 45 Section 1107. Successors and Assigns.................................................................................. 45 Section1108. Captions......................................................................................................... 45 Section 1109. Photocopies and Reproductions..................................................................... 45 Section 1110. Bonds Owned by the City.............................................................................. 45 • Exhibit A Form of Series 2002 Bond........................................................................... A-1 Exhibit B Form of Coverage Certificate....................................................................... B-1 Exhibit C Requisition Form.......................................................................................... C-1 • 10-34187.07 IV • TRUST INDENTURE THIS TRUST INDENTURE dated as of June 1, 2002, by and between the CITY OF FAYETTEVILLE, ARKANSAS (the "City"), a city of the first class organized under and existing by virtue of the laws of the State of Arkansas, and SIMMONS FIRST TRUST COMPANY, N.A., as trustee (the "Trustee"), a national banking association organized under and existing by virtue of the laws of the United States of America and having its principal corporate trust office in Pine Bluff, Arkansas; WITNESSETH: WHEREAS, the City presently owns a public water and sewer utility system (which system, together with all capital improvements thereto, is herein collectively called the "System") serving the residents of the City and its environs; and WHEREAS, the City Council of the City has determined that there is a great need for a source of revenue to finance all or a portion of the costs of acquiring, constructing, reconstructing, extending, improving and equipping System wastewater treatment plants, sewerage and related facilities (the "Project"); and WHEREAS, the people of the State of Arkansas (the "State") by the adoption of Amendment No. 62 to the Constitution of the State, approved November 6, 1984 ("Amendment • 62"), have authorized cities and counties in the State to issue bonds, upon voter approval, to finance and refinance certain capital improvements of a public nature, and to secure said bonds by a pledge of the proceeds of certain taxes; and WHEREAS, the provisions of Amendment 62 have been implemented by the Local Government Bond Act of 1985, codified as Arkansas Code Annotated (1998 Repl. & Supp. 2001) Sections 14-164-301 et seq. (as from time to time amended, the "Act"); and WHEREAS, pursuant to the provisions of Ordinance No. 4327, duly adopted by the City Council of the City on August 7, 2001 (the "Election Ordinance"), there was submitted to the qualified electors of the City the question of the issuance of not to exceed $125,000,000 in principal amount of capital improvement bonds pursuant to Amendment 62 and the Act to finance the Project, said bonds to be secured by a pledge of and lien upon all of the receipts of a special city-wide sales and use tax at the rate of three-quarters of one percent (0.75%) levied pursuant to the Act (the "Sales and Use Tax"); and WHEREAS, at a special election held November 6, 2001, a majority of the qualified electors of the City voting on the aforementioned question approved the issuance of the capital improvement bonds and the corresponding levy of the Sales and Use Tax and pledge of Sales and Use Tax receipts to the payment of the capital improvement bonds; and WHEREAS, pursuant to the provisions of Ordinance No. 4389 of the City, adopted by . the City Council on May 7, 2002 (the "Authorizing Ordinance"), and in accordance with the provisions of Amendment 62 and the Act, the City proposes to issue its Sales and Use Tax 10-34187.07 Capital Improvement Bonds, Series 2002 (the "Series 2002 Bonds"), in the aggregate principal amount of $25,000,000, in order to provide for the financing of a portion of the Project; and WHEREAS, the City has further determined to enter into this Indenture to authorize the issuance of and to secure the Series 2002 Bonds by granting to the Trustee a pledge and assignment of the interests and other rights herein contained, and certain funds and accounts created hereby; and WHEREAS, the Series 2002 Bonds are to be dated, bear interest, mature and be subject to redemption as hereinafter in this Indenture set forth in detail; and WHEREAS, provision is made in this Indenture for the issuance of Additional Bonds (hereinafter defined) upon compliance with certain conditions set forth herein; and WHEREAS, the execution and delivery of this Indenture and the issuance of the Series 2002 Bonds have been in all respects duly and validly confirmed, authorized and approved under the provisions of the Authorizing Ordinance; and WHEREAS, all things necessary to make the Series 2002 Bonds, when authenticated by the Trustee and issued as in this Indenture provided, the valid, binding and legal obligations of the City according to the import thereof, and to constitute this Indenture a valid pledge of the Sales and Use Tax receipts to the payment of the principal of, premium, if any, and interest on • the Series 2002 Bonds, as specified in and in accordance with the provisions hereof, have been done and performed, and the creation, execution and delivery of this Indenture and the creation, execution, issuance and delivery of the Series 2002 Bonds, subject to the terms hereof, have in all respects been duly authorized; 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 Series 2002 Bonds by the Holders and owners thereof, and the sum of Ten Dollars ($10.00), lawful money of the United States of America, to it duly paid by the Trustee, at or before the execution and delivery of these presents, and for other good and valuable consideration, the receipt of which is hereby acknowledged, and in order to secure the payment of the principal of, premium, if any, and interest on the Series 2002 Bonds and all Additional Bonds (hereinafter defined), if any, according to their tenor and effect, and to secure the performance and observance by the City of all the covenants expressed or implied herein and in the Series 2002 Bonds and Additional Bonds (collectively, the "Bonds"), does hereby grant, bargain, sell, convey, mortgage, assign, transfer and pledge unto the Trustee, and unto its successor or successors in trust, and to them and their assigns forever, for the securing of the performance of the obligations of the City hereinafter set forth the following: • 10-34187.07 2 Subject only to the provisions of this Indenture permitting the application thereof for the purposes and on the terms and conditions set forth herein, (i) the proceeds of the sale of the Bonds, (ii) all receipts from the Sales and Use Tax, which are hereby irrevocably assigned and pledged to secure all obligations under this Indenture, and (iii) the Revenue Fund, Bond Fund, Debt Service Reserve Fund (subject to the limitations set forth in Section 508 hereof), Project Fund and Redemption Fund established by this Indenture, including the investment earnings thereon, if any. 2. Any and all other properties, rights and interests of every kind and nature from time to time which have been, are hereby, or hereafter are, by delivery or by writing or transfer 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, or with the written consent of the City, to the Trustee, which is hereby authorized to receive any and all such properties, rights and interests at any time and at all times and to hold and apply the same subject to the terms hereof. TO HAVE AND TO HOLD all the same (the "Trust Estate") with all privileges and appurtenances hereby conveyed and assigned, or agreed or intended 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 owners of the said Bonds issued under and secured by this Indenture without privilege, priority or distinction as to lien or otherwise of any of the Bonds over any of the other Bonds; provided, however, that if the City, its successors or assigns, shall well and truly pay, or cause to be paid, the principal of, premium, if any, and interest due on the Bonds, at the times and in the manner provided in the Bonds, according to the true intent and meaning thereof, and shall make the payments as required under this Indenture or shall provide, as permitted 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 of the covenants and conditions pursuant to the terms of this Indenture to be kept, 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 or deposits this Indenture and the lien and rights hereby granted shall cease, determine and be void; otherwise, this Indenture is to be and remain in full force and effect. THIS INDENTURE FURTHER WITNESSETH that, and it is expressly declared that, all Bonds issued and secured hereunder are to be issued, authenticated and delivered and all revenues and income hereby pledged are to be dealt with and disposed of under, upon and subject to the terms, conditions, 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 Trustee and with the respective owners from time to time of the Bonds or any part thereof, as follows, that is to say: 10-34187.07 3 • ARTICLE I DEFINITIONS Section 101. Definitions. In addition to the words and terms elsewhere defined in this Indenture, the following words and terms as used in this Indenture shall have the following meanings: "Account" means an Account established by Article V of this Indenture. "Act" means the Local Government Bond Act of 1985, codified as Arkansas Code Annotated (1998 Repl. & Supp. 2001) Sections 14-164-301 et seq., as from time to time amended. "Additional Bonds" mean Bonds in addition to the Series 2002 Bonds which are issued under the provisions of Section 212 of this Indenture. "Amendment 62" means Amendment No. 62 to the Constitution of Arkansas, approved by the voters of the State on November 6, 1984. "Annual Debt Service" means, with respect to all or any particular amount of Bonds or • any RLF Loan, as the case may be, the Debt Service for any particular Fiscal Year required to be paid or set aside during such Fiscal Year, less the amount of such payment which is provided from the proceeds of the sale of Bonds or which is drawn under an RLF Loan or from sources other than Sales and Use Tax receipts. "Authorized Representative" means either the Mayor or Administrative Service Director of the City and such additional persons as from time to time may be designated to act on behalf of the City by a Certificate furnished to the Trustee containing the specimen signature thereof and executed on behalf of the City by its Mayor. "Authorizing Ordinance" means Ordinance No. 4389, adopted by the City on May 7, 2002, which authorized the issuance of the Series 2002 Bonds pursuant to this Indenture. "Beneficial Owner" means any Person who acquires beneficial ownership interest in a Bond held by the Securities Depository. In determining the Beneficial Owner of any Bond, the Trustee may rely exclusively upon written representations made and information given to the Trustee by the Securities Depository or its Participants with respect to any Bond held by the Securities Depository in which a beneficial ownership interest is claimed. "Bond Counsel" means any firm of nationally recognized municipal bond counsel selected by the City and acceptable to the Trustee. "Bond Fund" means the fund by that name created and established in Section 501 of this • Indenture. 10-34187.07 • "Bonds" mean the Series 2002 Bonds and all Additional Bonds issued by the City pursuant to this Indenture. Except to the extent provided in Section 209 hereof and except for refunding bonds issued under the provisions of Section 212 hereof, the aggregate principal amount of Bonds issued hereunder and any RLF Loan incurred by the City shall not exceed $125,000,000. "Book -Entry System" means the book -entry system maintained by the Securities Depository described in Section 216 of this Indenture. "Certificate" means a document signed by an Authorized Representative of the City attesting to or acknowledging the circumstances or other matters therein stated. "City" means the City of Fayetteville, Arkansas, a municipality and political subdivision under the laws of the State of Arkansas. "City Clerk" means the person holding the office and performing the duties of the City Clerk of the City. "Closing Date" means, with respect to any series of Bonds, the date upon which there is an exchange of such series of Bonds for the proceeds representing the purchase price for such series of Bonds by the Original Purchaser or Purchasers thereof. • "Code" means the Internal Revenue Code of 1986, as from time to time amended, and applicable regulations issued or proposed thereunder. "Completion Date" means the date upon which the Project is first ready for normal continuous operation, as determined by a Qualified Engineer. "Continuing Disclosure Agreement" means, collectively, each Continuing Disclosure Agreement between the City and the Trustee, dated the date of issuance and delivery of a series of Bonds, as originally executed and as amended from time to time in accordance with the terms thereof. "Costs of Issuance" means all items of expense payable or reimbursable directly or indirectly by the City and related to the authorization, sale and issuance of the Bonds, including, but not limited to, underwriting discounts, fees and expenses, election expenses, publication expenses, expenses of printing, reproducing, filing and recording documents, initial fees and charges of the Trustee and any Paying Agent, fees and expenses for legal, accounting and other professional services, rating fees, costs of securing any credit enhancement for the Bonds, costs of execution, transportation and safekeeping of the Bonds, and other costs, charges and fees incurred in connection with the foregoing. "Costs of Issuance Fund" means the fund by that name created and established in Section 501 of this Indenture. . "Debt Service" means, with respect to all or any particular amount of Bonds or any RLF Loan, as the case may be, the total as of any particular date of computation and for any particular 10-34187-07 5 • period of the scheduled amount of interest and amortization of principal payable on such Bonds and any RLF Loan, excluding amounts scheduled during such period which relate to principal which has been retired before the beginning of such period. "Debt Service Reserve Fund" means the fund by that name created and established in Section 501 of this Indenture. "Election Ordinance" means Ordinance No. 4327, adopted by the City Council on August 7, 2001, pursuant to which there was submitted to the qualified electors of the City the question of the issuance of the Bonds. "Event of Default" means any event of default specified in Section 801 hereof. "Fiscal Year" means the 12 -month period used, at any time, by the City for accounting purposes, which may be the calendar year. "Fund" means a fund established by Article V of this Indenture. "Government Securities" means (i) bonds, notes, certificates of indebtedness, treasury bills or other securities constituting direct obligations of, or obligations on which the full and timely payment of principal and interest is fully and unconditionally guaranteed by, the United States of America (including any such securities issued or held in book -entry form on the books • of the Department of Treasury of the United States of America), and (ii) evidences of direct ownership or proportionate or individual interest in future interest or principal payments on specified direct obligations of, or obligations on which the full and timely payment of principal and interest is fully and unconditionally guaranteed by, the United States of America, which obligations are held by a bank or trust company organized and existing under the laws of the United States of America or any state thereof in the capacity of custodian in form and substance satisfactory to the Trustee. "Holder" or "Bondholder" or "owner of the Bonds" means the registered owner of any Bond. "Indenture" means this Trust Indenture dated as of June 1, 2002, between the City and the Trustee, pursuant to which the Bonds are issued, and any amendments and supplements hereto. "Investment Securities" means, if and to the extent the same are at the time legal for investment of Funds and Accounts held under this Indenture: (a) Government Securities; (b) bonds, notes or other obligations of any state of the United States of America or any political subdivision of any state, which at the time of their purchase are rated in either of the two highest rating categories by a nationally recognized Rating • Agency; 10-34187.07 6 • (c) certificates of deposit or time or demand deposits constituting direct obligations of any bank, bank holding company, savings and loan association or trust company organized under the laws of the United States of America or any state thereof (including the Trustee or any of its affiliates), except that investments may be made only in certificates of deposit or time or demand deposits which are: (1) insured by the Federal Deposit Insurance Corporation, or any other similar United States Government deposit insurance program then in existence; or (2) continuously and fully secured by Government Securities, which have a market value, exclusive of accrued interest, at all times at least equal to the principal amount of such certificates of deposit or time or demand deposits; (d) short term discount obligations of the Federal National Mortgage Association and the Government National Mortgage Association; and (e) money market mutual funds (1) that invest in Government Securities or that are registered with the federal Securities and Exchange Commission (SEC), meeting the requirements of Rule 2a-7 under the Investment Company Act of 1940, and (2) that are rated in either of the two highest categories by a nationally recognized Rating Agency. • "Mayor" means the person holding the office and performing the duties of the Mayor of the City. "Original Purchaser" means the first purchaser(s) of a series of Bonds from the City. "Outstanding" means, as of any date of computation, Bonds theretofore or thereupon being delivered under this Indenture, except: (a) Bonds cancelled at or prior to such date or delivered to or acquired by the Trustee at or prior to such date for cancellation; (b) Bonds deemed to be paid in accordance with Article VII of this Indenture; (c) Bonds in lieu of or in exchange or substitution for which other Bonds shall have been authenticated and delivered pursuant to this Indenture. "Participants" means those financial institutions for whom the Securities Depository effects book -entry transfers and pledges of securities deposited with the Securities Depository in the Book -Entry System, as such listing of Participants exists at the time of such reference. "Paying Agent" means any bank or trust company named by the City as the place at which the principal of and premium, if any, and interest on the Bonds are payable. • 10-34187.07 7 • "Person" means any natural person, firm, association, corporation, limited liability company, partnership, joint stock company, joint venture, trust, unincorporated organization or firm, or a government or any agency or political subdivision thereof or other public body.. "Project" means the acquisition, construction, reconstruction, extension, improving and equipping of System wastewater treatment plants, sewerage and related facilities. "Project Costs" means, to the extent permitted by the Act or other applicable laws, with respect to the Project, all costs of planning, designing, purchasing, acquiring, constructing, improving, enlarging, extending, repairing, financing and placing in operation, including obtaining governmental approvals, certificates, permits and licenses with respect thereto, heretofore or hereafter paid or incurred by or on behalf of the City and which shall include, but shall not be limited to: (a) interest accruing in whole or in part on the Bonds prior to and during construction of the Project, including all amounts required by this Indenture to be paid from the proceeds of the Bonds into the Bond Fund; (b) preliminary investigation and development costs, engineering fees, contractors' fees, labor costs, the cost of materials, equipment, utility services and supplies, costs of obtaining permits, licenses and approvals, costs of real property, insurance premiums, legal and financing fees and costs, administrative and general costs, • and all other costs properly allocable to the acquisition, construction and equipping of the Project and placing the same in operation; (c) all costs relating to injury and damage claims arising out of the acquisition, construction or equipping of the Project; (d) all other costs incurred in connection with, and properly allocable to, the acquisition, construction and equipping of the Project; and (e) amounts to pay or reimburse the City or any City fund for expenses of the City incident and properly allocable to such planning, designing, purchasing, acquiring, constructing, improving, enlarging, extending, repairing, financing and placing in operation of the Project. "Project Fund" means the fund by that name created and established in Section 501 of this Indenture. "Qualified Engineer" means an independent consulting engineer or firm of independent consulting engineers not in the regular employ of the City. "RLF Loan" means any loan to the City under the Arkansas Soil and Water Conservation Commission Revolving Loan Fund Program, which loan is to be secured by Sales and Use Tax • receipts on a parity basis with the Bonds. Any RLF Loan may, but need not, be structured in the form of an Additional Bond or Additional Bonds issued hereunder. 10-34187.07 8 "Rating Agency" means Moody's Investors Service, Standard & Poor's Ratings Services, a Division of The McGraw-Hill Companies, Inc., or Fitch, Inc., and their respective successors and assigns. If any such corporation ceases to act as a securities rating agency, the City may appoint any nationally recognized securities rating agency as a replacement. "Rebate Fund" means the fund by that name created and established in Section 501 of this Indenture. "Record Date" means the fifteenth day of the calendar month preceding the calendar month in which an interest payment date on the Bonds occurs. "Redemption Fund" means the fund by that name established in Section 501 of this Indenture. "Requisition" means a written requisition of the City, consecutively numbered, signed by an Authorized Representative including, without limitation, the following with respect to each payment requested: (i) the name of the person or party to whom payment is to be made and the purpose of the payment, (ii) the amount to be paid thereunder; (iii) that such amount has not been previously paid by the City and is justly due and owing to the person(s) named therein as a proper payment or reimbursement of a Project Cost; and (iv) that no Event of Default exists under the Indenture and that, to the knowledge of the Authorized Representative, no event has occurred and continues which with notice or lapse of time or both would constitute an Event of Default under the Indenture. "Reserve Requirement" means, at any particular time, an amount equal to 5% of the aggregate principal amount of Outstanding Bonds of all series, except as may otherwise be provided by Section 508 hereof. "Revenue Fund" means the fund by that name created and established in Section 501 of this Indenture. "Sales and Use Tax" means the three-quarters of one percent (0.75%) city-wide sales and use tax authorized under the Act which has been levied within the City pursuant to the Election Ordinance, the collection of which tax commenced on April 1, 2002, as approved by the voters of the City. Receipts of the Sales and Use Tax are pledged to the payment of Debt Service on the Bonds. • "Securities Depository" means The Depository Trust Company, New York, New York, or its nominee, and its successors and assigns. 10-34187.07 9 • "Series 2002 Bonds" means the City's Sales and Use Tax Capital Improvement Bonds, Series 2002, issued under and secured by this Indenture in the aggregate principal amount of $25,000,000. "State" means the State of Arkansas. "Supplemental Indenture" means any indenture supplemental to or amendatory of this Indenture, adopted by the City in accordance with Article X hereof. "Surplus Tax Receipts" shall have the meaning ascribed to such term in Section 503 hereof. "System" means the City's combined water and sewer utility system. "Tax Regulatory Agreement" means with respect to any series of Bonds, that Tax Regulatory Agreement of the City relating to maintenance of the excludability of interest on such Bonds from gross income for federal income tax purposes, delivered in connection with the issuance of such series of Bonds. "Trustee" means the banking corporation or association designated as Trustee in the Indenture, and its successor or successors as such Trustee. The original Trustee is Simmons First Trust Company, N.A. "Trust Estate" means the property described in the granting clauses of this Indenture. "Value" means, as of any particular time of determination, the value of any Investment Securities calculated as follows: (a) as to investments the bid and asked prices of which are published on a regular basis in The Wall Street Journal (or, if not there, then in The New York Times): the average of the bid and asked prices for such investments so published on or most recently prior to such time of determination; (b) as to investments the bid and asked prices of which are not published on a regular basis in The Wall Street Journal or The New York Times: the average bid price at such time of determination for such investments by any two nationally recognized government securities dealers (selected by the Trustee in its absolute discretion) at the time making a market in such investments or the bid price published by a nationally recognized pricing service; (c) as to certificates of deposit: the face amount thereof, plus accrued interest; (d) as to direct obligations of the United States (State and Local Government Series) in book -entry form: the par or face principal amount thereof; and • (e) as to any investment not specified above: the value thereof established by prior agreement between the City and the Trustee. 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", "owner", "holder" and "person" shall include the plural, as well as the singular, number. ARTICLE II THE BONDS Section 201. Security for the Bonds. (a) The Bonds are special and limited obligations of the City payable as to principal, premium, if any, and interest solely out of the Trust Estate. The Trust Estate is hereby pledged, appropriated and assigned to the payment of the principal of, premium, if any, and interest on the Bonds, all in accordance with their terms and the provisions of this Indenture. The Bonds do not constitute an indebtedness for which the faith and credit of the State of Arkansas or the City is pledged within the meaning of any Constitutional or statutory limitation. The Bonds shall never constitute an obligation of or a charge against the general credit or general taxing powers of the City. (b) The pledge, charge, lien, trusts and assignments made herein with respect to the Trust Estate shall be valid and binding, and shall be deemed continuously perfected from the time of issuance of the Series 2002 Bonds, and the Trust Estate shall thereupon be immediately subject to the pledge, charge, lien, trust and assignment created hereby upon receipt thereof by or • for the City or by the Trustee or the Paying Agent hereunder, without any physical delivery, segregation thereof or further act, and such pledge, charge, lien, trust and assignment shall be valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the City, irrespective of whether such parties have notice thereof. (c) The Bonds shall be equally and ratably payable and secured hereunder without priority by reason of date of adoption of this Indenture or any Supplemental Indenture authorizing their issuance or by reason of their series, number, date, date of issue, execution, authentication or sale, or otherwise; provided, however, Surplus Tax Receipts shall be applied to the redemption of the Series 2002 Bonds prior to the application of such Surplus Tax Receipts to the redemption of Bonds of other series or any RLF Loan prior to maturity. (d) So long as any Bonds are Outstanding under the provisions of this Indenture, all receipts derived from the Sales and Use Tax shall be deemed to be necessary to accomplish the purposes of the City and shall be subject to the covenants and agreements set forth in this Indenture, and no such revenues or receipts shall ever be used or deposited otherwise except as herein expressly permitted. (e) The City covenants, as permitted by the Act, that while any of the Bonds are Outstanding it will use due diligence in causing the collection of the Sales and Use Tax. Nothing herein shall prohibit the City from increasing any sales and use tax from time to time, to the extent permitted by law, and no part of the revenues or receipts derived by the City from any • such increase shall become part of the receipts derived from the Sales and Use Tax unless authorized and pledged by a Supplemental Indenture. 10-34187.07 1 l • Section 202. Authorized Amount. There is hereby authorized the issuance of bonds of the City to be designated "Sales and Use Tax Capital Improvement Bonds, Series 2002" in the principal amount of Twenty -Five Million Dollars ($25,000,000) (the "Series 2002 Bonds"). No Bonds may be issued under the provisions of this Indenture except in accordance with this Article II. The total principal amount of Bonds that may be issued hereunder and any RLF Loans that may be incurred by the City is hereby expressly limited to $125,000,000, except as provided in Section 209 and except for refunding bonds issued under the provisions of Section 212 hereof. Section 203. Details of Series 2002 Bonds. The Series 2002 Bonds (i) shall be designated "City of Fayetteville, Arkansas Sales and Use Tax Capital Improvement Bonds, Series 2002," (ii) shall be in the aggregate principal amount of $25,000,000, (iii) shall be dated as of June 1, 2002, (iv) shall bear interest from such date at the rates hereinafter provided until paid, payable semiannually on June 1 and December 1 of each year, commencing December 1, 2002, (v) shall be issued in denominations of $5,000 each, or any integral multiple thereof, (vi) shall be numbered from R02-1 upwards in order of issuance according to the records of the Trustee, and (vii) shall mature, unless sooner redeemed in the manner in this Indenture set forth, on June 1 in each of the years and in the amounts set forth in the following table, which table also sets forth the interest rates for the Series 2002 Bonds: Year June 1) Principal Amount Interest Rate • 2003 $6,455,000 2.00% 2004 6,365,000 4.00% 2005 5,275,000 4.00% 2007 6,905,000 3.20% Section 204. Form. The Series 2002 Bonds shall be initially issued as fully registered Bonds, without coupons, in the form of four typewritten bond certificates (one for each maturity) to be delivered to the Securities Depository. Each such certificate shall be initially registered in the name of the nominee of the Securities Depository, and no Beneficial Owner will receive a certificate representing his interest in the Series 2002 Bonds, except upon the occurrence of the events described in Section 216 hereof. Beneficial Owners shall be deemed to have waived any right to receive a bond certificate except under the circumstances described in Section 216. The Series 2002 Bonds and the Trustee's certificate of authentication to be endorsed thereon shall be in substantially the form set forth in Exhibit A hereto, with appropriate variations, insertions and omissions as permitted or required by this Indenture. Section 205. Payment. The Bonds shall be payable, with respect to principal, premium, if any, and interest in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts. The principal of and premium, if any, on the Bonds shall be payable upon surrender thereof at the principal corporate trust office of the Trustee. Payment of interest on each Bond shall be made by check or draft mailed to the registered owner of such Bond as of the applicable Record Date at his address as it appears on the registration books maintained by the Trustee. For purposes of this 10-34187.07 12 • Indenture, interest on the Bonds shall be deemed to accrue on the basis of a 360 -day year of twelve 30 -day months. So long as the Securities Depository or its nominee is the sole registered owner of the Bonds, payment of interest thereon shall be made by wire transfer of immediately available funds by the Paying Agent to the Securities Depository or its nominee. All payments shall be made in lawful money of the United States of America. Section 206. Execution. The Bonds shall be executed on behalf of the City by the manual or facsimile signatures of its Mayor and City Clerk and shall have impressed or imprinted thereon the seal of the City. A facsimile signature shall have the same force and effect as if manually signed. In case any officer whose manual signature or a 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 such official had remained in office until delivery. Section 207. Authentication. Only such Bonds as shall have endorsed thereon a certificate of authentication substantially in the form set forth in Exhibit A attached hereto duly executed by the Trustee shall be entitled to any right or benefit under this Indenture. No Bond shall be valid and obligatory for any purpose unless and until such certificate of authentication shall have been duly executed 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 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. Section 208. Delivery of the Bonds. The City shall execute and deliver to the Trustee and the Trustee shall authenticate the Bonds of any series and deliver said Bonds to the Securities Depository as may be directed in this Section 208, in Section 212 hereof or in any Supplemental Indenture. (1) Prior to the delivery or original issuance by the Trustee of any authenticated Bonds of any series, there shall be delivered to the Trustee: (a) An original executed counterpart of this Indenture or, in the case of Additional Bonds, a Supplemental Indenture by and between the City and the Trustee setting forth the details concerning such Additional Bonds; (b) Original executed counterparts of the Continuing Disclosure Agreement and the Tax Regulatory Agreement applicable to such series of Bonds; (c) A Certificate directing the Trustee to authenticate the Bonds and containing instructions as to the delivery of the Bonds upon payment to the Trustee, for the account of the City, of a sum specified in such Certificate; (d) A copy, duly certified by the City Clerk, of the proceedings of the City • authorizing the levy of the Sales and Use Tax and the issuance of the Bonds; (e) A written opinion of Bond Counsel approving the legality of the Bonds; 10-34187.07 13 S(f) In the case of any series of Additional Bonds, a Certificate signed by the Mayor of the City certifying that (i) the City is not then in default in the performance of any of the covenants, conditions, agreements or provisions contained in this Indenture, and (ii) the City is current as to all required deposits at that time in all the Funds and Accounts described in Article V of this Indenture or hereafter created by Supplemental Indentures, or if the City is in default or is not so current, certifying in the case of (i) or (ii) as to that fact and that, upon the application of the proceeds of the sale of such Additional Bonds as provided in the Supplemental Indenture authorizing the issuance thereof, the City will not be in default or will be current thereafter; (g) In the case of any series of Additional Bonds, a written opinion of Bond Counsel to the effect that the exemption from federal income tax of the interest on the Series 2002 Bonds and any Additional Bonds theretofore issued will not be adversely affected by the issuance of the Additional Bonds being issued; and (h) Such further documents and certificates as may be required by the Original Purchaser of such series of Bonds. (2) Simultaneously with the delivery of the Series 2002 Bonds, the Trustee shall apply the proceeds thereof as follows: (a) The amount, if any, received as accrued interest on the Series 2002 Bonds • shall be deposited in the Bond Fund; (b) $1,250,000.00, an amount equal to the Reserve Requirement, shall be deposited in the Debt Service Reserve Fund; (c) An amount equal to $75,000.00 shall be deposited in the Costs of Issuance Fund for payment of Costs of Issuance as directed by a Certificate of the City; and (d) The balance of said proceeds, in the amount of $23,888,105.70, shall be deposited in the Project Fund. Section 209. Mutilated, Destroyed or Lost Bonds. In case any Bond issued hereunder shall become mutilated or be destroyed or lost, the City shall, if not then prohibited by law, cause to be executed and the Trustee may authenticate and deliver a new Bond of like series, date, number, maturity and tenor in exchange and substitution for and upon cancellation of such mutilated Bond, or in lieu of and in substitution for such Bond destroyed or lost, upon the Holder'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, filing by the Holder with the Trustee evidence satisfactory to the Trustee that such Bonds were destroyed or lost, and of the Holder's ownership thereof, and furnishing the City and Trustee with indemnity satisfactory to them. The Trustee is hereby authorized to authenticate any such new Bond. In the event any such Bonds shall have matured, instead of issuing a new Bond, the City may pay the same without the • surrender thereof Upon the issuance of a new Bond under this Section 209, the City may require the payment of a sum sufficient to cover any tax or other governmental charge that may 10-34187.07 14 be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. Section 210. Registration and Transfer of Bonds. The City hereby constitutes and appoints the Trustee as Bond registrar of the City, and as Bond registrar the Trustee shall keep books for the registration and for the transfer of the Bonds as provided in this Indenture at the principal corporate trust office of the Trustee. The person in whose name any Bond shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes and payment of or on account of the principal of and interest on any such Bond shall be made only to or upon the order of the registered owner thereof, or the owner's legal representative, and neither the City, the Trustee nor the Bond registrar shall be affected by any notice to the contrary, but such registration may be changed as herein provided. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Bond to the extent of the sum or sums so paid. Bonds may be transferred on the books of registration kept by the Trustee by the registered owner in person or by the owner's duly authorized attorney, upon surrender thereof, together with a written instrument of transfer duly executed by the registered owner or the owner's duly authorized attorney. Upon surrender for transfer of any Bond at the principal corporate office of the Trustee, the City shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Bond or Bonds of the same series and in the same aggregate principal amount and of any authorized denomination or denominations. • Bonds may be exchanged at the principal corporate trust office of the Trustee for an equal aggregate principal amount of Bonds of any other authorized denomination or denominations of the same series with corresponding maturities. The City shall execute and the Trustee shall authenticate and deliver Bonds which the Bondholder making the exchange is entitled to receive, bearing numbers not contemporaneously then outstanding. The execution by the City of any Bond of any denomination shall constitute full and due authorization of such denomination and the Trustee shall thereby be authorized to authenticate and deliver such Bond. Such transfers of registration or exchanges of Bonds shall be without charge to the Holders of such Bonds, but any taxes or other governmental charges required to be paid with respect to the same shall be paid by the Holder of the Bond requesting such transfer or exchange as a condition precedent to the exercise of such privilege. The Trustee shall not be required to transfer or exchange any Bond during the period from and including a Record Date to the next succeeding interest payment date of such Bond nor to transfer or exchange any Bond after the mailing of notice calling such Bond for redemption has been made, and prior to such redemption. If the Securities Depository or its nominee is the sole registered owner of the Bonds, transfers of ownership and exchanges shall be effected on the records of the Securities Depository and its Participants pursuant to rules and procedures established by the Securities Depository and its Participants. In such case, the Trustee shall deal with the Securities • Depository as representative of the Beneficial Owners of the Bonds for purposes of exercising 10-34187.07 15 • the rights of Bondholders hereunder, and the rights of the Beneficial Owners of such Bonds held by the Securities Depository or its nominee shall be limited to those established by law and agreements between such Beneficial Owners and the Securities Depository and its Participants. Requests, consents and directions from, and votes of, the Securities Depository or its nominee as representative shall not be deemed inconsistent if they are made with respect to different Participants or Beneficial Owners. Section 211. Cancellation. All Bonds surrendered for payment, redemption, transfer or exchange, if surrendered to the Trustee, shall be promptly cancelled by it, and, if surrendered to any person other than the Trustee, shall be delivered to the Trustee and, if not already cancelled, shall be promptly cancelled by it. The City may at any time deliver to the Trustee for cancellation any Bonds previously authenticated and delivered hereunder, which the City may have acquired in any manner whatsoever, and all Bonds so delivered shall be promptly cancelled by the Trustee. All cancelled Bonds held by the Trustee shall be disposed of as directed by the City. Whenever in this Indenture provision is made for the cancellation by the Trustee and the delivery to the City of any Bonds, the Trustee may, upon the written request of the City, in lieu of such cancellation and delivery, destroy such Bonds in the presence of any officer of the City (but only if the City shall so require), and deliver a certificate of such destruction to the City. Section 212. Additional Bonds and Drawdowns Under RLF Loans. The City may issue from time to time one or more series of Additional Bonds for the purpose of (i) financing Project Costs in connection with the completion of the Project, (ii) refunding the Series 2002 Bonds or any series of Additional Bonds or any RLF Loan, in whole or in part, or (iii) any combination thereof. Additional Bonds shall be secured equally and ratably with the Series 2002 Bonds and any other series of Additional Bonds theretofore issued or any RLF Loan theretofore incurred and then Outstanding, except insofar as any terms or conditions of redemption or purchase established under this Indenture may afford additional benefit or security for the Bonds of any particular series and except for the security afforded by any municipal bond insurance obtained with respect to a particular series of Bonds; provided, however, that RLF Loans structured as Additional Bonds shall not be secured by the Debt Service Reserve Fund. Before any Additional Bonds are authenticated, there shall be delivered to the Trustee the items required for the issuance of Bonds by Section 208 hereof, plus a Certificate of the Administrative Services Director of the City (in the form attached as Exhibit B hereto) certifying that, based upon necessary investigation, the Sales and Use Tax receipts transferred to the Trustee for deposit to the Revenue Fund during the most recent twelve (12) months were not less than (i) 125% of the maximum Annual Debt Service on all then Outstanding Bonds and any RLF Loan, plus the Additional Bonds then proposed to be issued, and (ii) the amount, if any, needed to make required deposits to the Debt Service Reserve Fund. Prior to any drawdown on an RLF Loan, there shall be delivered to the Trustee a Certificate of the Administrative Services Director of the City (in the form attached as Exhibit B hereto) certifying that, based upon necessary • investigation, the Sales and Use Tax receipts transferred to the Trustee for deposit to the Revenue Fund during the most recent twelve (12) months were not less than 125% of the maximum Annual Debt Service on all the Outstanding Bonds and any RLF Loan theretofore incurred, plus the maximum Annual Debt Service on the amount of the additional RLF Loan to • be incurred. Notwithstanding anything herein to the contrary, no Additional Bonds shall be 10-34187.07 16 issued and no RLF Loan shall be incurred unless there is no default at the time of issuance under this Indenture. Section 213. Superior Obligations Prohibited. Except to the extent permitted in Section 212 hereof for the issuance of Additional Bonds, from and after the issuance of any of the Bonds and for so long as any of the Bonds are Outstanding, the City shall not create or permit the creation of any indebtedness, or issue any bonds, notes, warrants, certificates or other obligations or evidences of indebtedness payable in any manner from the Sales and Use Tax receipts or otherwise from the Trust Estate which (i) will in any way be superior to or rank on a parity with the Bonds, or (ii) will in any way be secured by a lien and charge on the Sales and Use Tax receipts or on the moneys deposited in or to be deposited in the Revenue Fund, prior to or equal with the lien, pledge and charge created herein for the security of the Bonds, or (iii) will be payable prior to or equal with the payments to be made from the Sales and Use Tax receipts and the Revenue Fund into the Bond Fund, Debt Service Reserve Fund and Redemption Fund or from said Bond Fund, Debt Service Reserve Fund and Redemption Fund for the payment of the Bonds. Section 214. [RESERVED]. Section 215. Temporary Bonds. Until Bonds in definitive form are ready for delivery, the City may execute, and upon the request of the City, the Trustee shall authenticate and deliver, subject to the provisions, limitations and conditions set forth herein, one or more Bonds in temporary form, whether printed, typewritten, lithographed or otherwise produced, substantially in the form of the definitive Bonds, with appropriate omissions, variations and insertions, and in authorized denominations. Until exchanged for Bonds in definitive form, such Bond in temporary form shall be entitled to the lien and benefit of this Indenture. Upon the presentation and surrender of any Bond or Bonds in temporary form, the City shall, without unreasonable delay, prepare, execute and deliver to the Trustee and the Trustee shall authenticate and deliver, in exchange therefor, a Bond or Bonds in definitive form. Such exchange shall be made by the Trustee without making any charge therefor to the Holder of such Bond in temporary form. Section 216. Book -Entry Bonds; Securities Depository. The Bonds shall initially be registered to Cede & Co., the nominee for The Depository Trust Company, New York, New York (the "Securities Depository"), and no Beneficial Owner will receive certificates representing their respective interests in the Bonds, except in the event the Trustee issues replacement bonds as provided in this Section 216. It is anticipated that during the term of the Bonds, the Securities Depository will make book -entry transfers among its Participants and receive and transmit payment of principal of, premium, if any, and interest on, the Bonds to the Participants until and unless the Trustee authenticates and delivers replacement bonds to the Beneficial Owners as described in the following paragraph. If the City or the Trustee determines (A) that the Securities Depository is unable to properly discharge its responsibilities, or (B) that the Securities Depository is no longer qualified to act as a securities depository and registered clearing agency under the Securities and Exchange • Act of 1934, as amended, or (C) that the continuation of a Book -Entry System to the exclusion of any Bonds being issued to any Bondholder other than Cede & Co. is no longer in the best 10-34187.07 17 • interests of the Beneficial Owners of the Bonds, or (2) if the Trustee receives written notice from Participants representing interests in not less than 50% of the Bonds Outstanding, as shown on the records of the Securities Depository (and certified to such effect by the Securities Depository), that the continuation of a Book -Entry System to the exclusion of any Bonds being issued to any Bondholder other than Cede & Co. is no longer in the best interests of the Beneficial Owners of the Bonds, then the Trustee shall notify the Bondholders of such determination or such notice and of the availability of certificates to Bondholders requesting the same, and the Trustee shall register in the name of and authenticate and deliver replacement bonds to the Beneficial Owners or their nominees in principal amounts representing the interest of each; provided, that in the case of a determination under (A) or (B) of this paragraph, the City or the Trustee may select a successor securities depository in accordance with the following paragraph to effect book -entry transfers. In such event, all references to the Securities Depository herein shall relate to the period of time when the Securities Depository has possession of at least one Bond. Upon the issuance of replacement bonds, all references herein to obligations imposed upon or to be performed by the Securities Depository shall be deemed to be imposed upon and performed by the Trustee, to the extent applicable with respect to such replacement bonds. If the Securities Depository resigns and the City, the Trustee or Bondholders are unable to locate a qualified successor of the Securities Depository in accordance with the following paragraph, then the Trustee shall authenticate and cause delivery of replacement bonds to Bondholders, as provided herein. The Trustee may rely conclusively on information from the Securities Depository and its Participants as to the names and addresses of the Beneficial Owners of the Bonds. The cost of printing, registration, authentication, and delivery of replacement . bonds shall be paid for by the City. In the event the Securities Depository resigns, is unable to properly discharge its responsibilities, or is no longer qualified to act as a securities depository and registered clearing agency under the Securities and Exchange Act of 1934, as amended, the City may appoint a successor Securities Depository provided the Trustee receives written evidence satisfactory to the Trustee with respect to the ability of the successor Securities Depository to discharge its responsibilities. Any such successor Securities Depository shall be a securities depository which is a registered clearing agency under the Securities and Exchange Act of 1934, as amended, or other applicable statute or regulation that operates a securities depository upon reasonable and customary terms. The Trustee upon its receipt of a Bond or Bonds for cancellation shall cause the delivery of Bonds to the successor Securities Depository in appropriate denominations and form as provided herein. ARTICLE III REDEMPTION OF BONDS BEFORE MATURITY Section 301. Redemption of Series 2002 Bonds. The Series 2002 Bonds shall be subject to redemption prior to maturity as follows: • (a) The Series 2002 Bonds shall be redeemed prior to maturity, in whole or in part, on any interest payment date, in inverse order of maturity and by lot in such manner as the 10-34187.07 18 • Trustee shall determine within a maturity, at a redemption price equal to 100% of the principal amount being redeemed, plus accrued interest to the date of redemption, from Project Fund moneys in excess of the amount needed to complete the Project, which moneys shall be transferred to the Redemption Fund pursuant to Section 502 hereof. (b) The Series 2002 Bonds shall be redeemed prior to maturity, in whole or in part, on any interest payment date, in inverse order of maturity and by lot in such manner as the Trustee shall determine within a maturity, at a redemption price equal to 100% of the principal amount being redeemed, plus accrued interest to the date of redemption, from Surplus Tax Receipts deposited in the Redemption Fund pursuant to Section 503 hereof. Notwithstanding any other provision of this Indenture to the contrary, Surplus Tax Receipts shall be applied to the redemption of the Series 2002 Bonds prior to their application for redemption prior to maturity of any other series of Bonds issued hereunder or any RLF Loan. (c) The Series 2002 Bonds maturing on June 1, 2007, are subject to mandatory redemption, to be selected by lot in such manner as the Trustee shall determine, on June I in the years and the amounts set forth below, at a redemption price equal to 100% of the principal amount being redeemed, plus accrued interest to the date of redemption. Date Principal Amount June 1, 2006 $4,205,000 • June 1, 2007 (maturity) 2,700,000 Section 302. Notice. Notice of the call for any redemption, identifying the Bonds or portions thereof being called and the date on which they shall be presented for payment, shall be mailed by the Trustee by first class mail (or, so long as the Securities Depository or its nominee is the sole registered owner of the Bonds, by any other means acceptable to the Securities Depository, including facsimile) to the registered owner of each such Bond addressed to such registered owner at his registered address and placed in the mails not less than thirty (30) nor more than sixty (60) days prior to the date fixed for redemption; provided, however, that failure to give such notice by mailing, or any defect therein, shall not affect the validity of any proceeding for the redemption of any Bond with respect to which no such failure or defect has occurred. Any notice mailed as provided in this Section 302 shall be conclusively presumed to have been duly given, whether or not the registered owner receives the notice. Section 303. Selection of Bonds to be Redeemed. If less than all of the Bonds of like series, maturity, interest rate and otherwise identical payment terms shall be called for redemption, the particular Bonds or portions of Bonds to be redeemed shall be selected by lot by the Trustee in such manner as the Trustee in its discretion may deem fair and appropriate; provided, however, that the portion of any Bond of a denomination of larger than the minimum denomination may be redeemed in the principal amount of such minimum denomination or a • multiple thereof, and that for purposes of selection and redemption, any such Bond of a denomination larger than the minimum denomination shall be considered to be that number of 10-34187.07 19 • separate Bonds of such minimum denomination which is obtained by dividing the principal amount of such Bond by such minimum denomination. So long as the Securities Depository or its nominee is the sole registered owner of a series of Bonds, the procedures established by the Securities Depository shall control with respect to the selection of the particular Bonds of such series to be redeemed. Section 304. Surrender of Bonds Upon Redemption. Notice having been given in the manner and under the conditions hereinabove provided, and moneys for payment of the redemption price being held by the Trustee as provided in this Indenture (i) the Bonds or portions of Bonds so called for redemption shall, on the date fixed for redemption designated in such notice, become due and payable at the redemption price provided for redemption of such Bonds, and interest on such Bonds or portions of Bonds so called for redemption shall cease to accrue, (ii) upon surrender of the Bonds or portions of Bonds so called for redemption in accordance with such notice, such Bonds or portions of Bonds shall be paid at the applicable redemption price, (iii) such Bonds or portions of Bonds shall cease to be entitled to any lien, benefit or security under this Indenture, and (iv) the owners of said Bonds or portions of Bonds shall have no rights in respect thereof except to receive payment of the redemption price thereof. Section 305. Redemption in Part. Any Bond which is to be redeemed only in part shall be surrendered to the Trustee (with, if the City or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the City and the Trustee duly executed by, the owner thereof or his attorney duly authorized in writing), and the appropriate officials of the City shall execute and the Trustee shall authenticate and deliver to the owner of such Bond, without service charge, a new Bond or Bonds of the same series, of any authorized denomination or denominations, having the same maturity and interest rate as requested by such owner, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Bond so surrendered. Section 306. Redemption of Additional Bonds. Additional Bonds may be made subject to optional, extraordinary and mandatory sinking fund redemption, in whole or in part, in such manner, at such times and at such prices as may be provided in the Supplemental Indenture providing for their issuance. ARTICLE IV GENERAL COVENANTS AND REPRESENTATIONS Section 401. Payment of Principal, Premium, if any, and Interest. The City covenants that it will promptly pay or cause to be paid the principal of and premium, if any, and interest on every Bond issued under this Indenture at the place, on the dates and in the manner provided herein and in the Bonds according to the true intent and meaning thereof. The principal, premium, if any, and interest (except interest paid from the proceeds from the sale of the Bonds and accrued interest) are payable solely from the Trust Estate which is hereby specifically pledged to the payment thereof in the manner and to the extent herein specified, and . nothing in the Bonds or this Indenture should be considered as assigning or pledging any funds or assets of the City other than the Trust Estate. Anything in this Indenture to the contrary 10-34187.07 20 notwithstanding, it is understood that whenever the City makes any covenants involving financial commitments it pledges no funds or assets other than the Trust Estate in the manner and to the extent herein specified, but nothing herein shall be construed as prohibiting the City from using any other funds or assets. The City covenants to use due diligence in causing the collection of the Sales and Use Tax. Section 402. Performance of Covenants. The City covenants that it will faithfully perform at all times any and all covenants, undertakings, stipulations and provisions contained in this Indenture, in any and every Bond executed, authenticated and delivered hereunder, and in all ordinances pertaining hereto. The City covenants that it is duly authorized under the Constitution and laws of the State of Arkansas, including particularly and without limitation Amendment 62 and the Act, to issue the Bonds authorized hereby and to execute this Indenture and to make the pledge of the Sales and Use Tax receipts and to make the 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 enforceable obligations of the City according to the import thereof. Section 403. Instruments of Further Assurance. At any and all times the City shall, so far as it may be authorized by law, pass, make, do, execute, acknowledge and deliver, all and every such further resolutions, ordinances, acts, deeds, conveyances, assignments, transfers and assurances as may be necessary or desirable for the better assuring, conveying, granting, • pledging, assigning and confirming of all and singular the receipts from the Sales and Use Tax and all other moneys hereby pledged or assigned, or intended so to be, or which the City may become bound to pledge or assign. Section 404. Recordation and Filing. To the extent necessary, the City covenants that it will cause this Indenture, such security agreements, financing statements, and all supplements thereto and other instruments as may be required from time to time to be kept, to be recorded and filed in such manner and in such places as may be required by law in order to fully preserve and protect the security of the owners of the Bonds and the rights of Trustee hereunder, and to perfect the security interest created by this Indenture. Section 405. Inspection of Books. The City shall keep proper books of record and account (separate from all other records and accounts) in which complete and correct entries shall be made of its transactions relating to the Project and the Funds and Accounts established by this Indenture. Section 406. Tax Covenants. The City shall not use or permit the use of any Bond proceeds or any other funds of the City, directly or indirectly, in any manner, and will not take or permit to be taken any other action or actions which would adversely effect the exclusion of interest on any Bond from gross income for federal income tax purposes. No part of the proceeds of the Bonds shall at any time be used, directly or indirectly, to acquire securities or obligations the acquisition of which would cause any of such Bonds to be an "arbitrage bond" as • defined in Sections 148(a) and (b) of the Code. The City agrees that so long as any of the Bonds 10-34187.07 21 • remain Outstanding, it will comply with the provisions of each applicable Tax Regulatory Agreement. Section 407. Trustee's and Paying Agent's Fees and Expenses. Subject to the provisions of Section 902 hereof, the City hereby agrees and covenants to make payments for the fees, expenses and charges of the Trustee and Paying Agent, if any, as authorized and provided by this Indenture. The City is to make payments on statements rendered by the Trustee and Paying Agent either (i) directly to the Trustee and Paying Agent or (ii) pursuant to Section 503(b) hereof. Section 408. Construction of Project; Certification of Completion Date. The City hereby covenants to use its best efforts to acquire, construct and equip each portion of the Project being financed with proceeds of the Bonds with all reasonable dispatch and to use its best efforts to cause the acquisition, construction and equipping of such portion of the Project to be completed as soon as may be practicable, but in any case within a period not to exceed three years after the issuance of the applicable series of Bonds, delays caused by force majeure only excepted, but if for any reason such acquisition, construction and equipping is not completed within said period, there shall be no diminution or postponement of payments required hereunder to be made by the City. Promptly after each such Completion Date, the City shall submit to the Trustee the certificate of a Qualified Engineer which shall specify the Completion Date and shall state that acquisition, construction and equipping of the portion of the Project being financed • with a particular series of Bond proceeds has been completed and the Project Costs have been paid, except for any Project Costs which have been incurred but are not then due and payable, or the liability for the payment of which is being contested or disputed by the City, and for the payment of which the Trustee is directed to retain specified amounts of moneys in the Project Fund. Notwithstanding the foregoing, such certificate may state that it is given without prejudice to any rights against third parties which exist at the date thereof or which may subsequently come into being. Section 409. Encumbrances. The City covenants that it will not create or suffer to be created any lien or charge upon the Trust Estate, except in accordance with the provisions of this Indenture. Section 410. Continuing Disclosure. The City hereby covenants and agrees that it will comply with and carry out all of the provisions of the Continuing Disclosure Agreement. Notwithstanding any other provision of this Indenture to the contrary, failure of the City or the Trustee to comply with the Continuing Disclosure Agreement shall not be considered an Event of Default hereunder; however, the Trustee may (and at the request of the Original Purchaser of a series of Bonds, the owners of at least 25% in aggregate Outstanding principal amount of such series of Bonds, shall) or any Beneficial Owner may take such actions as may be necessary and appropriate, including seeking mandate or specific performance by court order, to cause the City or the Trustee, as the case may be, to comply with its obligations under this Section 410. For purposes of this Section 410 only, "Beneficial Owner" shall mean any Person which (a) has the power, directly or indirectly, to vote or consent with respect to, or to dispose of ownership of, . any Bonds (including Persons holding Bonds through nominees, depositories or other intermediaries) or (b) is treated as the owner of Bonds for federal income tax purposes. 10-34187.07 22 C Section 411. Drawdowns Under RLF Loans. The City hereby covenants and agrees not to requisition amounts available under any RLF Loan unless the Sales and Use Tax receipts during the Fiscal Year immediately preceding the Fiscal Year in which such requisition is to occur were not less than 125% of the maximum Annual Debt Service on all Outstanding Bonds and any RLF Loan following such requisition. ARTICLE V FUNDS AND DEPOSITS Section 501. Creation of Funds and Accounts. (a) There are hereby created and established the following Funds and Accounts: (i) Project Fund; (ii) Revenue Fund; (iii) Bond Fund, and an Interest Account and a Principal Account therein; (iv) Redemption Fund; (v) Debt Service Reserve Fund; (vi) Cost of Issuance Fund; and (vii) Rebate Fund. (b) All Funds and Accounts shall be held by the Trustee, which shall hold and maintain said Funds and Accounts in trust, for the use and benefit of the Bondholders and the City, but subject to the permitted applications expressed herein. Section 502. Project Fund. (a) The Trustee shall deposit a portion of the proceeds of the Series 2002 Bonds to the credit of the Project Fund in accordance with the written directions of the City given as provided in Section 208 of this Indenture. (b) Moneys credited to the Project Fund shall be expended only as set forth in this Section 502. (c) Amounts in the Project Fund shall be expended and applied for the payment of Project Costs. Disbursements shall be made from the Project Fund on the basis of consecutively numbered Requisitions in the form attached hereto as Exhibit C signed by an Authorized Representative. Requisitions may be submitted to the Trustee by certified mail, first class mail or facsimile transmission. If the Trustee deems that a Requisition submitted by the City is sufficient pursuant to this Section 502, the amount requested thereunder shall be disbursed in payment of the Project Costs set forth therein, 10-34187.07 23 • or in reimbursement of such Project Costs, within two (2) business days of the date of receipt of such Requisition by the Trustee. Each Requisition shall specify: (i) the name of the person or party to whom payment is to be made and the purpose of the payment; (ii) the amount to be paid thereunder; (iii) that such amount has not been previously paid by the City and is justly due and owing to the person(s) named therein as a proper payment or reimbursement of a Project Cost; and (iv) that no Event of Default exists under the Indenture and that, to the knowledge of the Authorized Representative, no event has occurred and continues which with notice or lapse of time or both would constitute an Event of Default under the Indenture. (d) The Trustee shall keep full and complete records concerning and reflecting all disbursements from the Project Fund and shall file an accounting of said disbursements if and when requested by the City. The Trustee shall only make payments from the Project Fund pursuant to and in accordance with Requisitions. In making payments from the Project Fund, the Trustee may rely on any Requisitions delivered to it • pursuant to this Section 502, and the Trustee shall be relieved of all liability relating to payments made in accordance with such Requisitions and any supporting certificate or certificates requested by the Trustee without physical inspection of the Project. Within ninety (90) days following completion of the portion of the Project being financed with a particular series of Bonds, the City shall deliver to the Trustee its Certificate stating that the applicable portion of the Project is complete and the Trustee shall transfer the remaining moneys in the Project Fund relating to such series of Bonds (save and except moneys needed to satisfy unpaid Project Costs) to the Redemption Fund for application to the retirement of Bonds by redemption or purchase, as provided by Section 301(a) and Section 506 hereof. (e) Upon the occurrence and continuance of an Event of Default or the occurrence and continuance of an event which with notice or lapse of time or both would constitute an Event of Default, amounts on deposit in the Project Fund shall not be disbursed but shall instead be applied to the payment of Debt Service or the redemption price of the Bonds. Section 503. Revenue Fund. (a) There shall be deposited to the credit of the Revenue Fund, as and when received, all receipts derived from the Sales and Use Tax. For the purposes of financial reporting by the City with respect to the Sales and Use Tax, "receipts" and "revenues" shall have the same meaning. (b) Upon receipt, but in no event later than the last day of each month in • which Sales and Use Tax receipts are deposited in the Revenue Fund, commencing no 10-34187.07 F later than June 30, 2002, there shall be transferred from the Revenue Fund, in the following order, the amounts set forth below: FIRST: For deposit to the Interest Account of the Bond Fund, an amount equal to one -sixth (1/6) of the interest on the Outstanding Bonds due on the next interest payment date and an amount equal to the interest component of any monthly payment prescribed with respect to any RLF Loan; SECOND: For deposit to the Principal Account of the Bond Fund, an amount equal to one -twelfth (1/12) of the next scheduled principal maturity of Outstanding Bonds (including mandatory sinking fund redemptions) and an amount equal to the principal component of any monthly payment prescribed with respect to any RLF Loan; THIRD: For deposit to the Debt Service Reserve Fund, an amount sufficient to cure any deficiency in the Debt Service Reserve Fund; FOURTH: For deposit to the Rebate Fund, an amount sufficient to satisfy the City's obligations under Section 507 hereof; FIFTH: For payment to the Trustee and Paying Agent, the amount, if any, necessary to pay or reimburse the Trustee and Paying Agent for fees and expenses related to the Bonds or any RLF Loan; and • SIXTH: All remaining moneys ("Surplus Tax Receipts") will be transferred to the Redemption Fund and shall be applied to call Bonds or RLF Loans for redemption prior to maturity as provided in Section 301(b) and Section 506 hereof. (c) Required deposits into the Interest Account and Principal Account of the Bond Fund and the Debt Service Reserve Fund shall be reduced by investment earnings, if any, in said Funds and Accounts and, with respect to required deposits to the Interest Account of the Bond Fund only, by any accrued interest deposited to the Interest Account of the Bond Fund upon the initial sale of a series of Bonds. In the event there shall be insufficient moneys in the Revenue Fund in a particular month to make the required transfers described above, then any deficiencies shall be added to the required deposits during the next month. Section 504. Bond Fund. (a) There shall be deposited to the credit of the Bond Fund all moneys required to be transferred thereto pursuant to Sections 208, 503, 505, 506 and 508 of this Indenture and all other moneys received for said Fund. (b) Moneys credited to the Bond Fund shall be expended only as set forth in this Section 504. (c) (i) On each interest payment date for any of the Bonds Outstanding, the Trustee shall pay out of moneys credited to the Interest Account of the Bond Fund the amounts required for the payment of interest on the Bonds due on such date, and on each redemption date, the amounts required for the payment of accrued interest on Bonds then 10-34187.07 25 to be redeemed or purchased unless the payment of such accrued interest shall be otherwise provided for, and such amounts shall be applied to such payments. (ii) On each principal payment or redemption date for any of the Bonds Outstanding, the Trustee shall pay out of moneys credited to the Principal Account of the Bond Fund the amounts required for the payment of principal and premium, if any, due on the Bonds on such date and such amounts shall be applied to such payments. (iii) If there shall be insufficient moneys in the Bond Fund to pay in full interest, principal or premium, if any, due on the Bonds on any interest or principal payment or redemption date, the Trustee shall, one day prior to such date, transfer an amount equal to the deficiency into the appropriate Account of the Bond Fund from the Funds indicated in the following order: FIRST: the Revenue Fund; SECOND: the Redemption Fund; and THIRD: the Debt Service Reserve Fund (for payment of principal and interest on any interest or principal payment date only). . (d) All payments made pursuant to this Section 504 shall be made in immediately available funds. Section 505. Cost of Issuance Fund. There shall be deposited to the credit of the Cost of Issuance Fund all moneys received for said Fund pursuant to Section 208 hereof. The Trustee shall pay those Costs of Issuance as directed by the City pursuant to a Certificate delivered on a Closing Date. After all Costs of Issuance have been paid (and in any event not later than November 1, 2002 with respect to the Series 2002 Bonds), any remaining moneys in the Cost of Issuance Fund shall be transferred to the Interest Account of the Bond Fund. Section 506. Redemption Fund. (a) There shall be deposited to the credit of the Redemption Fund all moneys required to be transferred thereto pursuant to Section 502 and Section 503 of this Indenture. (b) Moneys credited to the Redemption Fund shall be expended only as set forth in this Section 506. (c) Moneys in the Redemption Fund shall be transferred to the Principal Account of the Bond Fund at such times as may be necessary to effectuate, on the first available date, redemptions of Bonds required by Section 301(a) and (b) of this Indenture. (d) The amounts accumulated in the Redemption Fund, if so directed by the • City by means of a Certificate delivered to the Trustee, shall be applied by the Trustee to the purchase of Bonds of the maturities which would otherwise be redeemed pursuant to 10-34187.07 26 Section 301(a) and (b) and this Section 506 but for the provisions of this subsection (d), at prices directed by the City not exceeding the applicable redemption prices of the Bonds which would be redeemed but for the operation of this sentence. Interest accrued on the Bonds so purchased shall be paid from moneys credited to the Interest Account of the Bond Fund. Section 507. Rebate Fund. (a) The Trustee shall establish and maintain, separate and apart from any other Funds and Accounts established and maintained hereunder, a Fund to be designated as the Rebate Fund, which Fund is not pledged to the payment of any Bonds. Subject to the transfer provisions provided in subsection (c) below, all moneys at any time deposited in the Rebate Fund shall be held by the Trustee in trust, to the extent required to satisfy the Rebate Amount (as defined in each Tax Regulatory Agreement), for payment to the United States of America, and neither the City nor the Owner of any Bond shall have any rights in or claim to such money. All amounts deposited into or on deposit in the Rebate Fund shall be governed by this Section 507, by Section 406, and by each Tax Regulatory Agreement (which are incorporated herein by reference). (b) As provided in Section 503(b) hereof, there shall be deposited in the Rebate Fund the amount of all income or gain on moneys deposited in any of the Funds and Accounts established by this Indenture which is required to be rebated to the United States and is designated for deposit therein, as calculated by the City to be owing to the United States pursuant to the Tax Regulatory Agreement, which shall be delivered by the • City concurrently with the issuance of a series of Bonds. (c) The Trustee, upon receipt of written instructions from the Mayor or Administrative Services Director of the City, shall pay to the United States out of amounts in the Rebate Fund such amounts as are required pursuant to each Tax Regulatory Agreement. (d) Any moneys remaining in the Rebate Fund after payment to the United States, within sixty (60) days after the date on which the last Bond is redeemed, of one hundred percent (100%) of the rebate amount as described in Section 148(O(2) of the Code, shall be transferred to the Revenue Fund. (e) The Trustee, as instructed by Certificate of the City, shall invest all amounts held in the Rebate Fund in Investment Securities, subject to the restrictions set forth in the applicable Tax Regulatory Agreement. Money shall not be transferred from the Rebate Fund except as provided in subsection (c). (0 Notwithstanding any other provision of this Indenture, the obligation to remit the Rebate Amount to the United States and to comply with all other requirements of this Section 507, Section 406 and each Tax Regulatory Agreement shall survive the defeasance or payment in full of the Bonds. • Section 508. Debt Service Reserve Fund. As provided in Section 208(2)(b) hereof, upon the issuance of each series of Bonds, there shall be deposited into the Debt Service Reserve 10-34187.07 27 • Fund, from proceeds of the Bonds, an amount sufficient to cause the amounts on deposit therein to be equal to the Reserve Requirement; provided, however, that no proceeds of RLF Loans will be deposited in the Debt Service Reserve Fund and the Debt Service Reserve Fund will not secure RLF Loans, whether or not structured as Additional Bonds. The Debt Service Reserve Fund shall be maintained in an amount equal to the Reserve Requirement. The Debt Service Reserve Fund shall be used solely to pay the principal of and interest on Outstanding Bonds (not including RLF Loans) for which there are no available funds in the Bond Fund to make such payments, as the same become due at maturity (including mandatory sinking fund redemption). If the Debt Service Reserve Fund, by virtue of any such payment, is reduced below the Reserve Requirement, it shall be reimbursed in the amount of any such deficiency as provided in Section 503. Notwithstanding the above provisions of this Section 508, the amount on deposit in the Debt Service Reserve Fund may be used, together with other available funds, to provide for the payment at maturity or to redeem prior to maturity all, but not less than all, of the Outstanding Bonds (not including RLF Loans). If an excess shall exist in the Debt Service Reserve Fund over and above the Reserve Requirement, such excess shall be transferred to the Interest Account of the Bond Fund. Section 509. Cessation of Fund Deposits. When the moneys in the Revenue Fund, the Bond Fund, the Debt Service Reserve Fund and the Redemption Fund shall be and remain sufficient to pay in full the principal and interest on all Bonds and RLF Loans then Outstanding in accordance with Article VII of this Indenture, together with the required fees and expenses to • be paid or reimbursed to the Trustee and any Paying Agent, the City shall have no further obligation to make further payments into said Funds. Pursuant to Arkansas Code Annotated Section 14-164-329(c)(2), the Sales and Use Tax shall be abolished on the first day of the calendar month subsequent to the expiration of thirty (30) days from the date there is filed with the Director of the Arkansas Department of Finance and Administration a written statement signed by the Mayor and the Trustee wherein either (a) the Trustee certifies that it has or will have sufficient funds on hand to pay the principal of and interest on the Bonds and any RLF Loan at maturity or upon redemption prior to maturity, and the Mayor certifies that the Sales and Use Tax is not pledged to any other indebtedness of the City, or (b) the Mayor certifies that there are no longer any Bonds or any RLF Loan outstanding payable from Sales and Use Tax receipts. Section 510. Separate Accounts Authorized. A Supplemental Indenture authorizing the issuance of Additional Bonds may provide for the creation of separate Accounts within the Bond Fund, Debt Service Reserve Fund, Project Fund, Costs of Issuance Fund and Rebate Fund for such series of Bonds and such other Accounts as the City may direct; provided, that the creation of such separate Accounts shall be solely for the ease of administration and shall in no event affect the equal and ratable security of the Bonds of each series. If any Supplemental Indenture authorizing the issuance of Additional Bonds provides for the establishment of separate Accounts for a series of Bonds, then such Supplemental Indenture shall require that the Sales and Use Tax receipts received by the City shall be deposited pursuant to written direction of the City into each of the Accounts within the Bond Fund and Debt Service Reserve Fund for each series of Bonds on the basis of the installments of principal, premium, if • any, and interest on each series of Bonds and the amounts required to be deposited in the 10-34187.07 28 • Accounts within the Debt Service Reserve Fund during the applicable period, to the end that the Bonds of each series shall be equally and ratable secured by the Sales and Use Tax receipts. Any Supplemental Indenture authorizing the issuance of Additional Bonds may provide that any proceeds of such series of Bonds and investment earnings thereon remaining after some specified date, or after the construction of all facilities to be financed with the proceeds of such series of Bonds, shall be applied to the redemption of such series of Bonds. ARTICLE VI INVESTMENTS Section 601. Investment of Moneys. At the direction of the City or absent such direction, the Trustee shall invest moneys in Funds or Accounts held by the Trustee in Investment Securities with maturity or redemption dates consistent with the times at which said moneys will be required for the purposes provided in this Indenture; provided, however, the stated maturity dates of Investment Securities of Debt Service Reserve Fund moneys shall not exceed five years from the date of investment therein. Moneys in separate Funds or Accounts may be commingled for the purpose of investment. Obligations purchased as an investment of moneys in any Fund or Account created by this Indenture shall be deemed at all times to be a part of such Fund or Account, and any income • or loss due to an investment thereof shall be charged to the respective Fund or Account for which the investment was made except as otherwise provided in this Indenture. Investments in any Fund or Account shall be evaluated at least annually by the Trustee. For the purpose of determining the amount in any Fund or Account, the City and the Trustee shall value all Investment Securities credited to such Fund or Account at the price at which such Investment Securities are redeemable by the Holders or owners thereof at their option if so redeemable, or, if not so redeemable, at the lesser of (i) the cost of such Investment Securities minus the amortization of any premium or plus the amortization of any discount thereon and (ii) the market value of such Investment Securities, provided that Investment Securities credited to the Debt Service Reserve Fund, if not so redeemable, shall be valued at the cost thereof minus the amortization of any premium or plus the amortization of any discount thereon. Section 602. Investment Earnings. Subject to the provisions of the Tax Regulatory Agreement and Article V hereof, Investment Securities purchased with moneys held in or attributable to any Fund or Account held by the Trustee under the provisions of this Indenture shall be deemed at all times to be a part of such Fund or Account and the income or interest earned, profits realized or losses suffered by a Fund or Account due to the investment thereof shall be retained in, credited or charged, as the case may be, to such Fund or Account unless otherwise provided pursuant to this Indenture. Section 603. Valuation of Funds. In determining the value of any Fund or Account . held by the Trustee under this Indenture, the Trustee shall credit Investment Securities at the fair market value thereof, as determined by the Trustee by any method selected by the Trustee in its 10-34187.07 29 • reasonable discretion. No less frequently than annually, and in any event within thirty (30) days prior to the end of each Fiscal Year, the Trustee shall determine the value of each Fund and Account held hereunder and shall report such determination to the City. The Trustee shall sell or present for redemption any Investment Securities as necessary in order to provide money for the purpose of making any payment required hereunder, and the Trustee shall not be liable for any loss resulting from any such sale. Section 604. Responsibility of Trustee. The Trustee shall not be responsible or liable for any loss suffered in connection with any investment of moneys made by it at the direction of the City. ARTICLE VII DISCHARGE OF LIEN Section 701. Discharge of Lien. If the City shall pay or cause to be paid to the owners of the Bonds 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 thereupon the Trustee shall cancel and discharge the lien of • this Indenture, and execute and deliver to the City such instruments 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 moneys or Government Securities held by it for the payment of the principal of and premium, if any, and interest on the Bonds. Section 702. Bonds Deemed Paid. Any Bond shall be deemed to be paid within the meaning of this Article VII when payment of the principal of and premium, if any, and interest on such Bond (whether at maturity or upon redemption as provided in this Indenture, or otherwise), either (i) shall have been made or caused to be made in accordance with the terms thereof, or (ii) shall have been provided for by irrevocably depositing with the Trustee, in trust and irrevocably set aside exclusively for such payment, (1) moneys sufficient to make such payment or (2) Government Securities (provided that such deposit will not affect the tax-exempt status of the interest on any of the Bonds or cause any of the Bonds to be classified as "arbitrage bonds" within the meaning of Section 148(a) of the Code, as reflected in an opinion of Bond Counsel delivered to the Trustee), maturing as to principal and interest in such amount and at such times as will provide sufficient moneys to make such payment, and all necessary and proper fees, compensation and expenses of the Trustee and any Paying Agent pertaining to the Bonds with respect to which such deposit is made shall have been paid or the payment thereof provided for to the satisfaction of the Trustee and any said Paying Agent. Section 703. Non -Presentment of Bonds. In the event 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, if there shall have been deposited with the Trustee for 10-34187.07 30 that purpose, or left in trust if previously so deposited, funds sufficient to pay the principal thereof, and premium, if any, together with all interest unpaid and due thereon, to the due date thereof, for the benefit of the Holder thereof, all liability of the City to the Holder thereof for the payment of the principal thereof, premium if any, and interest thereon, shall forthwith cease, determine and be completely discharged, and thereupon it shall be the duty of the Trustee to hold such fund or funds, without liability for interest thereon, for the benefit of the Holder of such Bonds, 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, the Bonds. ARTICLE VIII DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND BONDHOLDERS Section 801. Events of Default. Each of the following events shall constitute and is referred to in this Indenture as an "Event of Default": (a) Default in the due and punctual payment of any interest on any Bond; (b) Default in the due and punctual payment of the principal of or premium, if any, on any Bond, whether at the stated maturity thereof, or upon proceedings for redemption thereof, or upon the maturity thereof by declaration; • (c) Default in the payment of any other amount required to be paid under this Indenture or the performance or observance of any other of the covenants, agreements or conditions contained in this Indenture, or in the Bonds issued hereunder, and continuance thereof for a period of sixty (60) days after written notice specifying such failure and requesting that it be remedied shall have been given to the City by the Trustee, which may give such notice in its discretion and shall give such notice at the written request of Bondholders of not less than 51% in aggregate principal amount of the Bonds then Outstanding, unless the Trustee, or the Trustee and Holders of an aggregate principal amount of Bonds not less than the aggregate principal amount of Bonds the Holders of which requested such notice, as the case may be, shall agree in writing to an extension of such period prior to its expiration; provided, however, if the failure stated in the notice cannot be corrected within the applicable period, the Trustee will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by the City within such period and is being diligently pursued; (d) The filing of a petition in bankruptcy by or against the City under the United States Bankruptcy Code or the commencement of a proceeding by or against the City under any other law concerning insolvency, reorganization or bankruptcy; and (e) If the State has limited or altered the rights of the City pursuant to the Act, as in force on the date of this Indenture, to fulfill the terms of any agreements made with • the Trustee or the Bondholders or in any way impaired the rights and remedies of the Trustee or the Bondholders while any Bonds are Outstanding. 10-34187.07 31 • The term "default" as used in clauses (a), (b) and (c) above 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. Section 802. Acceleration. Upon the occurrence of an Event of Default, the Trustee may, and upon the written request of the Holders of not less than 51% in aggregate principal amount of Bonds Outstanding hereunder shall, by notice in writing delivered to the City, declare the principal of all Bonds then Outstanding, together with the interest accrued thereon, immediately due and payable, and such principal and interest shall thereupon become and be immediately due and payable. Section 803. Other Remedies; Rights of Bondholders. Upon the occurrence of an Event of Default, the Trustee may, as an alternative, pursue any available remedy by suit at law or in equity, including, without limitation, mandamus to enforce the payment of the principal of and premium, if any, and interest on the Bonds then Outstanding hereunder. If an Event of Default shall have occurred, and if it shall have been requested so to do by the Holders of not less than 51% in aggregate principal amount of Bonds Outstanding hereunder and if it shall have been indemnified as provided in Section 901(l) hereof, the Trustee shall be obligated to exercise such one or more of the rights and powers conferred upon it by this Section 803 as the Trustee, being advised by counsel, shall deem most expedient in the interests of the • Bondholders. 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 shall impair any rights or remedies consequent thereon. Section 804. Right of Bondholders to Direct Proceedings. Anything in this Indenture to the contrary notwithstanding, the Holders of not less than 51% in aggregate principal 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 connection 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. 10-34187.07 32 • Section 805. Appointment of Receiver. Upon the occurrence of an Event of Default, and upon the filing of a suit or other commencement of judicial proceedings to enforce the rights of the Trustee and of the Bondholders under this Indenture, the Trustee shall be entitled to the appointment of a receiver or receivers of the Trust Estate and of the tolls, rents, revenues, issues, earnings, income, products and profits thereof, including, without limitation, the Sales and Use Tax receipts, pending such proceedings with such powers as the court making such appointment shall confer. Section 806. Waiver. 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 the City or under the City shall or will set up, claim or seek to take advantage of any appraisement, valuation, stay, extension or redemption laws now or thereafter in force, in 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 right of appraisement and redemption to which it may be entitled under the laws of the State. Section 807. Application of Moneys. Available 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 maturity of the installments of such interest, and, if the amount available shall not be sufficient to pay in full any particular installment, then to the payment ratably, according to the amounts due on such installment, to the Persons entitled thereto, without any discrimination or privilege; Second: To the payment to the Persons entitled thereto of the unpaid principal of any of the Bonds which shall have become due (other than Bonds called for redemption for the payment of which moneys are held pursuant to the provisions of this Indenture), in the order of their due dates, with interest on such Bonds from the respective dates upon which they become due, and, if the amount available shall not be sufficient to pay in full Bonds due on any particular date, together with such interest, then to the payment ratably, according to the amount of principal due on such date, to the Persons entitled thereto without any discrimination or privilege of any Bond over any other Bond and without preference or priority of principal over interest or of interest over principal; and Third: 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. C J 10-34187.07 33 (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 first to the payment of the interest then due and unpaid upon the Bonds, and then to the payment of the principal then due and unpaid upon the Bonds, in each case without preference or priority of any Bond over any other Bond, ratably, according to the amounts due respectively for principal and interest, to the Persons entitled thereto. (c) If the principal of all the Bonds shall have been declared due and payable, and if such declaration shall thereafter have been rescinded and annulled under the provisions of this Article VIII then, subject to the provisions of paragraph (b) of this Section 807, 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 807. Whenever moneys are to be applied by the Trustee pursuant to the provisions of this Section 807, 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 moneys available for application and the likelihood of additional 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 Bond until such Bond shall be presented to the Trustee for appropriate endorsement or for cancellation if fully paid. Section 808. Remedies Vested in Trustee. All rights of action (including the right to file proof of claim) under this Indenture or under any of the Bonds may be enforced by the Trustee without the possession of any of the Bonds or the production thereof in any trial or other proceeding 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 Bondholders hereby secured, and any recovery of judgment shall be for the equal benefit of the Holders of all Outstanding Bonds. Section 809. Rights and Remedies of Bondholders. No Bondholder 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 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 901, 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 not less than 51% 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 • subsection (I) of Section 901, 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 10-34187.07 34 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 shall have any right in any manner whatsoever to affect, disturb or prejudice the lien of this Indenture by action of the Holder or Holders or to enforce any right hereunder except in the manner herein provided, and that all proceedings at law or in equity shall be instituted, held 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 Bondholders to enforce the payment of the principal of and premium, if any, and interest on any Bonds at and after the maturity thereof, or the obligation of the City to pay the principal of and premium, if any, and interest on each of the Bonds issued hereunder to the respective Holders thereof at the time and place in said Bonds expressed. Section 810. Termination of Proceedings. In case the Trustee shall have proceeded to enforce any right under this Indenture by the appointment of a receiver or otherwise, and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee, then and in every such case the City and the Trustee shall be restored to their former positions and 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 determination. Section 811. Waivers of Events of Default. The Trustee may, and upon the written request of the Holders of not less than 51% in principal amount of all Bonds Outstanding hereunder shall, waive any Event of Default hereunder and its consequences and rescind any declaration of maturity of principal; provided, however, there shall not be waived any Event of Default described in clause (a) or (b) of the first paragraph of Section 801 hereof, unless prior to such waiver or rescission all arrears of principal (due otherwise than by declaration) and interest, and all expenses of the Trustee and Paying Agent, shall have been paid or provided for. In case of any such waiver or rescission the City, Trustee and 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 subsequent thereon. ARTICLE IX TRUSTEE AND PAYING AGENTS Section 901. Acceptance of Trusts. The Trustee hereby accepts the trusts imposed upon it by this Indenture and agrees to perform said trusts, but only upon and subject to 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 trusts hereof and its duties 10-34187.07 35 hereunder, and may in all cases pay reasonable compensation to all such attorneys, agents, receivers and employees as may reasonably be employed in connection with the trusts hereof. Reimbursement of such compensation paid by the Trustee is subject to the provisions of Section 902 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 retained 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 901, 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 responsible for any loss or damage resulting from an action or nonaction in accordance with any such opinion or advice. (b) The Trustee shall not be responsible for any recital herein, or in the Bonds (except in respect to the certificate of authentication of the Trustee endorsed on such Bonds), or for the validity of the execution by the City of this Indenture or of any Supplemental Indentures or instruments of further assurance, or for the sufficiency of the security for 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 conveyed 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 performance or observance of any covenants, conditions and • agreements aforesaid as to the condition of the property herein conveyed. (c) The Trustee may become the owner of Bonds 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 exchange therefor or in place thereof. (e) As to the existence or nonexistence 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 901, or of which by that subsection it is deemed to have notice, shall also be at liberty to accept a similar certificate to the effect that any particular dealing, transaction, 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 in the form therein set forth has been 10-34187.07 36 • adopted by the City as conclusive evidence that such resolution 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 gross negligence or willful misconduct. (g) The Trustee shall not be required to take notice or be deemed to have notice of any default hereunder (except for defaults under clause (a) or (b) of the first paragraph of Section 801 hereof as to 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 10% in aggregate principal amount of Bonds Outstanding hereunder, and 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 principal corporate trust office of the Trustee, and in the absence of such notice so delivered, the Trustee may conclusively assume there is no such default except as aforesaid. (h) [Reserved]. (i) At any and all reasonable times the Trustee, and its duly authorized agents, attorneys, experts, engineers, accountants 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 Sales and Use Tax receipts 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 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 liability which is adjudicated to have resulted from the gross negligence or willful misconduct of the Trustee, by reason of any action so taken by the Trustee. • Section 902. Fees, Charges and Expenses of Trustee and Paying Agents; Trustee's Prior Lien. (a) Subject to subsection (b) of this Section 902, the City shall, from moneys lawfully available therefor, pay to the Trustee and any Paying Agent reasonable compensation 10-34187.07 37 • for all services performed hereunder and also all reasonable expenses, charges and other disbursements and those of their attorneys, agents and employees incurred in and about the administration and execution of the trusts hereby created and the performance of the powers and duties hereunder and, to the extent permitted by law and from moneys lawfully available therefor, shall indemnify and save the Trustee harmless against any liabilities which it may incur in the exercise and performance of its powers and duties hereunder. With respect to the Series 2002 Bonds, the Trustee's initial authentication fee shall be $2,000 and the annual administration fee of the Trustee shall be up to, but not exceeding, $2,850. With respect to RLF Loans in aggregate principal amount up to $100 million, the Trustee's initial authentication fee shall be $2,000 and the annual administration fee of the Trustee shall be up, but not exceeding, $3,100. If the City shall fail to make any payment required by this subsection (a), the Trustee may make such payment from any moneys in its possession under the provisions of this Indenture and shall be entitled to a preference therefor over any of the Bonds Outstanding hereunder. The City shall not be required to indemnify the Trustee against any liabilities which the Trustee may incur as a result of negligent or wrongful acts or omissions of the Trustee. (b) The City shall pay to the Trustee compensation for its services as described in Section 902(a), provided that such compensation, together with all expenses, charges and other disbursements of the Trustee and its attorneys, agents and employees and all reimbursements to the Trustee for all costs and other disbursements as described in Section 901(a) hereof shall not exceed $7,500 annually (not including the initial authentication fee) without the prior written • approval of the City, which approval shall not be unreasonably withheld. If the Trustee wishes to consult with or retain counsel for any purpose hereunder whose anticipated fees, together with all other compensation, disbursements and reimbursements of the Trustee and its attorneys, agents and employees to be paid by the City hereunder, shall exceed $10,000 annually, then such counsel shall have to be acceptable to the City and such fees shall have to be approved by the City as described above. Section 903. Additional Duties of Trustee. (a) In addition to the other duties of the Trustee described in this Indenture, it shall be the duty of the Trustee, on or before the tenth day of each month after the month in which the Series 2002 Bonds are delivered, to file with the City a statement setting forth in respect of the preceding calendar month: (i) the amount withdrawn or transferred by it and the amount deposited with it on account of each Fund and Account held by it under the provisions of this Indenture; (ii) the amount on deposit with it at the end of such month to the credit of each such Fund and Account; (iii) a brief description of all obligations held by it as an investment of moneys in each such Fund and Account; (iv) the amount applied .to the purchase or redemption of Bonds under the provisions of this Indenture and a description of the Bonds or portions of Bonds so • purchased or redeemed; and 10-34187.07 38 • (v) any other information that the City may reasonably request, including, but not limited to, submittal of monthly statements of activity relating to the Bonds and any RLF Loan. Such information shall also be provided at the direction of the City to one additional designated entity. All records and files pertaining to each such Fund and Account in the custody of the Trustee hereunder shall be open at all reasonable times to the inspection of the City and its agents and representatives, and the City may make copies thereof. (b) The Trustee additionally shall be responsible for the preparation and timely distribution of any and all forms and reports required by law to all Bondholders, the State and the Internal Revenue Service in connection with the payment to the Bondholders of interest on the Bonds. Section 904. Notice to Bondholders of Default. If a default occurs of which the Trustee is pursuant to the provisions of Section 901(g) deemed to have or is given notice, the Trustee shall promptly make demand upon the City and give notice to each owner of Bonds then Outstanding. Section 905. 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 Holders of Bonds issued hereunder, the Trustee may intervene on behalf of Bondholders and shall do so if requested in writing by the Holders of at least 51% of the aggregate principal amount of Bonds Outstanding hereunder. The rights and obligations of the Trustee under this Section 905 are subject to the approval of the court having jurisdiction in the premises. Section 906. Merger or Consolidation of Trustee. Any bank or trust company to 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 notwithstanding; provided, however, that such successor trustee shall have capital and surplus of at least $40 million. Section 907. Resignation by Trustee. The Trustee and any successor trustee may at any time resign from the trusts hereby created by giving written notice to the City and the Bondholders, and such resignation shall take effect upon the appointment of a successor trustee by the Bondholders or by the City. Such notice may be served personally or sent by registered mail (to the City) or first class mail (to the Bondholders). • Section 908. 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 10-34187.07 39 signed by the Holders of not less than 51% in aggregate principal amount of Bonds Outstanding hereunder. Section 909. Appointment of Successor Trustee. In case the Trustee hereunder shall resign or be removed, or be dissolved, or shall be in course of dissolution 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 Holders of not less than 51% in aggregate principal amount of Bonds Outstanding hereunder, by an instrument or concurrent instruments in writing signed by such Holders, 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. Any such temporary trustee appointed by the City shall immediately and without further act be superseded by the trustee appointed by such Bondholders. 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 $40 million. Section 910. Concerning Any 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 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 from 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. Section 911. Reliance Upon Instruments. 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 its actions taken hereunder. Section 912. Appointment of Co -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 instruments necessary or proper to appoint, another corporation or one or more Persons approved by the Trustee, 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, with such powers as may be provided in the instrument of appointment and to vest in such corporation or Person or Persons as such co -trustee any property, title, right or power deemed necessary or desirable. In the event that the City shall not have joined in such appointment within fifteen (15) days after the • receipt by it of a request so to do, the Trustee alone shall have the power to make such 10-34187.07 40 • appointment. Should any deed, conveyance or instrument in writing from the City be required by the co -trustee so appointed for more fully and certainly vesting in and confirming to such co - trustee such properties, rights, powers, trusts, duties and obligations, any and all such deeds, conveyances and instruments in writing shall, on request, be executed, acknowledged and delivered by the City. Every such co -trustee shall, to the extent permitted 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 conferred upon the Trustee in respect of the custody of all money and securities pledged or deposited hereunder, 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 shall refer to this Indenture and the conditions of this Article IX expressed, and upon the acceptance in writing by such co -trustee, the co -trustee 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 separate trustee to act alone), subject to all the trusts, conditions and provisions of this Indenture. Any such co -trustee may at any time, by an instrument in writing, constitute the Trustee as the co -trustee's 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 the co -trustee, for and on behalf of the co -trustee and in the co -trustee's name. In case any co -trustee shall die, become incapable of acting, resign or be removed, all the estate, properties, rights, powers, trusts, duties and obligations of said co -trustee shall vest in and be exercised by the Trustee until the appointment of a new trustee or a successor to such co -trustee. Section 913. Designation and Succession of Paying Agents. The Trustee and any other banks or trust companies designated as Paying Agent or Paying Agents in any Supplemental Indenture or in an instrument appointing a successor Trustee shall be the Paying Agent or Paying Agents for the Bonds. Any bank or trust company with which or into which any Paying Agent may be merged or consolidated, or to which the assets and business of such Paying Agent may be sold, shall be deemed the successor of such Paying Agent for the purposes of this Indenture. If the position of Paying Agent shall become vacant for any reason, the City shall, within thirty (30) days thereafter, appoint such bank or trust company as shall be specified by the City as such Paying Agent to fill such vacancy; provided, however, that, if the City shall fail to appoint such Paying Agent within said period, the Trustee shall make such appointment. The Paying Agents shall enjoy the same protective provisions in the performance of its duties hereunder as are specified in Section 901 hereof with respect to the Trustee insofar as such provisions may be applicable. • 10-34187.07 41 • ARTICLE X SUPPLEMENTAL INDENTURES Section 1001. Supplemental Indentures Not Requiring Consent of Bondholders. The City and the Trustee may, from time to time and at any time, without the consent of or notice to the Bondholders, enter into Supplemental Indentures as follows: (a) to cure any formal defect, omission, inconsistency or ambiguity in this Indenture; (b) to grant to or confer or impose upon the Trustee for the benefit of the Bondholders any additional rights, remedies, powers, authority, security, liabilities or duties which may lawfully be granted, conferred or imposed and which are not contrary to or inconsistent with this Indenture as theretofore in effect, provided that no such additional liabilities or duties shall be imposed upon the Trustee without its consent; (c) to add to the covenants and agreements of, and limitations and restrictions upon, the City in this Indenture other covenants, agreements, limitations and restrictions to be observed by the City which are not contrary to or inconsistent with this Indenture as theretofore in effect; • (d) to confirm, as further assurance, any pledge under, and the subjection to any claim, lien or pledge created or to be created by, this Indenture, of the Trust Estate or of any other moneys, securities or funds; (e) to comply with the requirements of the Trust Indenture Act of 1939, as from time to time amended; (f) to authorize the issuance and sale of one or more series of Additional Bonds; (g) to make such additions, deletions or modifications as may be necessary to assure compliance with Section 148(f) of the Code relating to required rebate to the United States or otherwise as may be necessary to assure exemption from federal income taxation of interest on the Bonds; or (h) to modify, alter, amend or supplement this Indenture in any other respect which is not materially adverse to the Bondholders and which does not involve a change described in clause (a), (b), (c), (d), (e) or (f) of Section 1002 hereof and which, in the judgment of the Trustee, is not to the prejudice of the Trustee. Section 1002. Supplemental Indentures Requiring Consent of Bondholders. Subject to the terms and provisions contained in this Section 1002, and not otherwise, the Holders of not less than 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 10-34187.07 42 • 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 Supplemental Indenture; provided, however, that nothing herein contained shall permit or be construed as permitting (a) an extension of the maturity (or mandatory redemption date) of the principal of or the interest on any Bond issued hereunder, or (b) a reduction in the principal amount of or redemption premium or rate of interest on any Bond issued hereunder, or (c) the creation of any lien on the Trust Estate or any part thereof, except as hereinbefore expressly permitted, 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 Indenture, or (f) depriving the Holder of any Bond then Outstanding of the lien hereby created on the Trust Estate. Nothing herein contained, however, shall be construed as making necessary the approval of Bondholders of the execution of any Supplemental Indenture as provided in Section 1001 of this Article X. If, at any time the City shall request the Trustee to enter into any Supplemental Indenture for any of the purposes of this Section, the Trustee shall, at the expense of the City, cause notice of the proposed execution of such Supplemental Indenture to be mailed by first class mail to each registered owner of the Bonds. 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 Bondholders. The Trustee shall not, however, be subject to any liability to any Bondholder by reason of its failure to mail such notice, and any such failure shall not affect the validity of such Supplemental Indenture when consented to and approved as • provided in this Section 1002. If the Holders of not less than 2/3 in aggregate principal amount of the Bonds Outstanding at the time of the execution of any such Supplemental Indenture shall have consented 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. Section 1003. Effect of Supplemental Indentures. Upon the execution of any Supplemental Indenture entered into pursuant to Section 1001 or 1002 hereof, this Indenture shall be deemed to be modified and amended in accordance therewith. ARTICLE XI MISCELLANEOUS Section 1101. Consents, etc. of Bondholders. Any request, 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 conclusive in favor of the Trustee with regard to any action taken by it under such request or other instrument, namely: 10-34187.07 43 • (a) The fact and date of the execution by any 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 such officer the execution thereof, or by an affidavit of any witness to such execution. (b) The fact of ownership of Bonds and the amount or amounts, numbers, and other identification of such Bonds, and the date of holding the same shall be proved by the registration books of the City maintained by the Trustee, as Bond registrar. Section 1102. Notices. Except as otherwise provided in this Indenture, all notices, certificates or other communications shall be sufficiently given and shall be deemed given when mailed by registered or certified mail, postage prepaid, to the City or the Trustee. Notices, certificates or other communications shall be sent to the following addresses: City: City of Fayetteville City Administration Building 113 West Mountain Fayetteville, Arkansas 72701 Attention: Mayor Trustee: Simmons First Trust Company, N.A. • 501 Main Street Pine Bluff, Arkansas 71601 Attention: Glenda L. Dean, Corporate Trust Either of the foregoing may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. Section 1103. 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 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 hereby secured as herein provided. Section 1104. 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 or 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 unenforceable in any other case or circumstance, or of rendering any other provision or provisions herein contained invalid, inoperative or unenforceable to any extent whatever. • The invalidity of any one or more phrases, sentences, clauses or paragraphs in this Indenture contained shall not affect the remaining portions of this Indenture or any part thereof. 10-34187.07 44 Section 1105. Applicable Provisions of Law. 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. Section 1106. 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. Section 1107. Successors and Assigns. All the covenants, stipulations, provisions, agreements, rights, remedies and claims of the parties hereto in this Indenture contained shall bind and inure to the benefit of their successors and assigns. Section 1108. Captions. The captions or headings in this Indenture are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Indenture. Section 1109. Photocopies and Reproductions. A photocopy or other reproduction of this Indenture may be filed as a financing statement pursuant to the Uniform Commercial Code, although the signatures of the City and the Trustee in such reproduction are not original manual signatures. • Section 1110. Bonds Owned by the City. In determining whether Bondholders of the requisite aggregate principal amount of the Bonds have concurred in any direction, consent or waiver under this Indenture, Bonds which are owned by the City shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that, for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver, only Bonds which the Trustee knows are so owned shall be so disregarded. Bonds so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Bonds and that the pledgee is not the City. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee. L� 10-34187.07 45 • IN WITNESS WHEREOF, the City 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 duly authorized officers and its corporate seal to be hereto affixed. CITY OF FAYETTEVILLE, ARKANSAS By: 44 9AV Mayor ATTEST: (SEAL) SIMMONS FIRST TRUST COMPANY, N.A., as Trustee Title: Corporate Trust Officer ATTEST: By: Title: Vice President (SEAL) 10-34187.07 46 • IN WITNESS WHEREOF, the City 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 duly authorized officers and its corporate seal to be hereto affixed. CITY OF FAYETTEVILLE, ARKANSAS By: Mayor ATTEST: City Clerk (SEAL) • SIMMONS FIRST TRUST COMPANY, N.A., as Trustee By: Title: Co orate Trust O f er ATTEST: By: Title: Vice President (SEAL) 10-34187.07 46 • • Li ACKNOWLEDGMENT STATE OF ARKANSAS ss. COUNTY OF WASHINGTON Before me a Notary Public, duly commissioned, qualified and acting within and for the State and county aforesaid, appeared in person the within named Dan Coody and Heather Woodruff, Mayor and City Clerk, respectively, of the City of Fayetteville, 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 City, 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 1C) day of June, 2002. My Commission expires: (SEAL) OFFICIAL SEAL Kelly S. Thomas NOTARY PUBLIC - ARKANSAS WASHINGTON COUNTY EXPIRES 02)14/2007 Notary Public [ACKNOWLEDGEMENT TO TRUST INDENTURE] 10-34187.07 47 • • • ACKNOWLEDGMENT STATE OF ARKANSAS ss. COUNTY OF JEFFERSON Before me a Notary Public, duly commissioned, qualified and acting within and for the State and county aforesaid, appeared in person the within named Glenda Dean and Roy Ferrell, the Corporate Trust Officer and the Vice President, respectively, of Simmons First Trust Company, N.A., 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 Trust Company, 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 ab day of June, 2002. My Commission expires: oa-w-or7 (SEAL) OFFICIAL SEAL Kelly S. Thomas NOTARY PUBLIC - ARKANSAS WASHINGTON COUNTY EXPIRES 02/14/2007 _ �ivan'Y"u� Notary Public A. [ACKNOWLEDGEMENT TO TRUST INDENTURE] 10-34187.07 r• C EXHIBIT A TO TRUST INDENTURE Form of Series 2002 Bond Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC'), to the City or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by the authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), any transfer, pledge or other use hereof for value or otherwise by or to any person is wrongful inasmuch as the registered owner hereof Cede & Co., has an interest herein. REGISTERED No. R02 - Interest Rate: REGISTERED UNITED STATES OF AMERICA STATE OF ARKANSAS CITY OF FAYETTEVILLE, ARKANSAS SALES AND USE TAX CAPITAL IMPROVEMENT BOND SERIES 2002 Date of Bond: June 1, 2002 Registered Owner: CEDE & CO. Principal Amount: KNOW ALL MEN BY THESE PRESENTS: Maturity Date: June 1, 20 CUSIP: DOLLARS That the City of Fayetteville, Arkansas, a municipality and political subdivision organized and existing by virtue of the laws of the State of Arkansas (the "City"), for value received, promises to pay to the Registered Owner shown above, or registered assigns, on the Maturity Date shown above, but solely from the source and in the manner hereinafter set forth, the Principal Amount shown above, and in like manner to pay interest on said amount from the date hereof until payment of such Principal Amount has been made or duly provided for, at the Interest Rate per annum shown above, such interest to be payable semiannually on June 1 and December 1 of each year, commencing on the June 1 or December 1 next succeeding the date of this bond shown above, except as the provisions, hereinafter set forth with respect to redemption of this bond prior to maturity may become applicable hereto. The principal of and premium, if any, on this bond are payable in lawful money of the United States of America upon the presentation and surrender hereof at the principal corporate trust office of Simmons First Trust Company, N.A., Pine Bluff, Arkansas, or its successor or successors, as trustee (the "Trustee"). So long as Cede & Co. or another nominee of DTC is the registered owner of this bond, payment of interest hereon shall be made by wire transfer of immediately available funds by the Trustee to the Registered Owner as of the fifteenth day of the calendar month preceding the calendar month 10-34187.07 A-1 in which such interest payment date shall fall (the "Record Date"). At any time thereafter, payment of interest hereon shall be made by check or draft of the Trustee to the Registered Owner as of the applicable Record Date, at the owner's address as it appears on the bond registration books of the City kept by the Trustee. This bond, designated "Sales and Use Tax Capital Improvement Bond, Series 2002", is one of a series of bonds aggregating Twenty Five Million Dollars ($25,000,000) (the "Bonds"). The Bonds are being issued for the purpose of financing the costs of acquiring, constructing, reconstructing, extending, improving and equipping wastewater treatment plants, sewerage and related facilities (collectively the "Project"), funding a debt service reserve, and paying the costs of issuance of the Bonds. The Bonds are issued under and are secured by and entitled to the protection of a Trust Indenture dated as of June 1, 2002 (the "Indenture"), by and between the City and the Trustee, which Indenture is available for inspection at the principal corporate trust office of the Trustee. Reference is hereby made to the Indenture and to all indentures supplemental thereto for the provisions, among others, with respect to the nature and extent of the security, the rights, duties and obligations of the City, the Trustee and the owners of the Bonds, and the terms upon which the Bonds are issued and secured. The Bonds are issued pursuant to and in full compliance with the Constitution and laws of the State of Arkansas, including particularly Amendment No. 62 to the Constitution of • Arkansas, as implemented by the Local Government Bond Act of 1985, codified as Arkansas Code Annotated (1998 Repl. & Supp. 2001) §§14-164-301 et seq. (as from time to time amended, the "Local Government Bond Act"), Ordinance No. 4389 of the City adopted May 7, 2002, which ordinance authorized the execution and delivery of the Indenture, and a special election duly held on November 6, 2001, at which a majority of the qualified electors of the City voting approved the issuance of the Bonds. In accordance with the Local Government Bond Act, the City has pledged all receipts from a three-quarters of one percent (0.75%) local sales and use tax (the "Sales and Use Tax") levied by the City pursuant to Ordinance No. 4327, adopted by the City on August 7, 2001, to provide funds for the repayment of the Bonds. The pledge of the receipts of the Sales and Use Tax (collectively, the "Tax Receipts") presently secure payment of the Bonds only, but such Tax Receipts may additionally be pledged to secure the payment of up to $100,000,000 in aggregate principal amount of (i) Additional Bonds issued under the provisions of the Indenture and (ii) loans obtained under the Arkansas Soil and Water Conservation Commission Revolving Loan Program ("RLF Loans"). The Indenture provides that the City may hereafter issue Additional Bonds and incur RLF Loans from time to time under certain terms and conditions contained in the Indenture and, if issued or incurred, such Additional Bonds and RLF Loans will rank on a parity of security with the Bonds and be equally and ratably secured by and entitled to the protection of the Indenture (except that RLF Loans will not be secured by the debt service reserve). The Bonds are not general obligations of the City, but are special obligations secured by • an irrevocable pledge of and lien on the Tax Receipts, as more particularly described in the 10-34187.07 A-2 Indenture. In no event shall the Bonds 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 or defend any suit or other proceeding with respect 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 and Additional Bonds, if any, issued under the Indenture and then outstanding may be declared and may become 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 Bonds shall be redeemed prior to maturity, in whole or in part, on any interest payment date, in inverse order of maturity and by lot in such manner as the Trustee shall determine within a maturity, at a redemption price equal to 100% of the principal amount being redeemed, plus accrued interest to the date of redemption, from Project Fund moneys in excess of the amount needed to complete the Project. The Bonds shall be redeemed prior to maturity, in whole or in part, on any interest payment date, in inverse order of maturity and by lot in such manner as the Trustee shall determine within a maturity, at a redemption price equal to 100% of the principal amount being redeemed, plus accrued interest to the date of redemption, from Surplus Tax Receipts. "Surplus Tax Receipts" are Tax Receipts in excess of the amount necessary to (i) insure the prompt payment of scheduled debt service on the Bonds, Additional Bonds and any RLF Loan, (ii) maintain the debt service reserve fund at the required level, (iii) pay any arbitrage rebate due under Section 148(0 of the Internal Revenue Code of 1986, as amended, with respect to the Bond or any Additional Bonds, and (iv) pay the fees and expenses of the Trustee and any paying agent. Surplus Tax Receipts shall be applied to the redemption of the Bonds prior to their application for redemption prior to maturity of any series of Additional Bonds or any RLF Loan. The Bonds maturing on June 1, 2007, are subject to mandatory redemption, to be selected by lot in such manner as the Trustee shall determine, on June 1 in the years and the amounts set forth below, at a redemption price equal to 100% of the principal amount being redeemed, plus accrued interest to the date of redemption. Date Principal Amount June 1, 2006 $4,205,000 June 1, 2007 (maturity) 2,700,000 Notwithstanding the foregoing, so long as DTC or its nominee is the sole registered owner of the Bonds, the particular Bonds or portions thereof to be redeemed in part within a maturity shall be selected by lot by DTC in such manner as DTC shall determine. In selecting • Bonds for redemption prior to maturity, in the case any outstanding Bond is in a denomination 10-34187.07 A-3 • greater than $5,000, each $5,000 of face value of such Bond shall be treated as a separate Bond of the denomination of $5,000. In the event any of the Bonds or portions thereof (which shall be $5,000 or any integral multiple thereof) are called for redemption, notice thereof shall be given by the Trustee by first class mail to the registered owner of each such Bond addressed to such registered owner at his registered address and placed in the mails not less than thirty (30) nor more than sixty (60) days prior to the date fixed for redemption; provided, however, that failure to give such notice by mailing, or any defect therein, shall not affect the validity of the proceedings for the redemption of any Bond with respect to which no such failure or defect has occurred. Each notice shall identify the Bonds or portions thereof being called, and the date on which they shall be presented for payment. After the date specified in such call notice, the Bond or Bonds so called for redemption will cease to bear interest provided funds sufficient for their redemption 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 transferred on the books of registration kept by the Trustee by the registered owner or by his duly authorized attorney upon surrender hereof, together with a written instrument of transfer duly executed by the registered owner or his duly authorized attorney. The Bonds are issuable as registered bonds without coupons in denominations of $5,000 and any integral multiple thereof. Subject to the limitations and upon payment of the charges provided in the Indenture, Bonds may be exchanged for a like aggregate principal amount of Bonds of other authorized denominations. No recourse shall be had for the payment of the principal of or premium, if any, or interest on any of the Bonds or for any claim based thereon or upon any obligation, covenant or agreement contained in the Bonds or the Indenture against any past, present or future alderman, officer or employee of the City, or any successor, as such, either directly or through the City or any successor of the City, under any rule of law or equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise, and all such liability of any such alderman, officer or employee as such is hereby expressly waived and released as a condition of and consideration for the issuance of any of the Bonds. This Bond is issued with the 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 represented by the Bonds, together with all obligations of the City, does not exceed any constitutional or statutory limitation; and that the revenues pledged to the payment of the principal of and premium, if any, and interest on the Bonds as the same become • due and payable will be sufficient in amount for that purpose. 10-34187.07 A-4 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 (by their manual or facsimile signatures), and its corporate seal to be affixed or imprinted hereon, all as of the date hereof shown above. CITY OF FAYETTEVILLE, ARKANSAS By: Mayor ATTEST: By: City Clerk (SEAL) . (Form of Trustee's Certificate) TRUSTEE'S CERTIFICATE OF AUTHENTICATION This bond is one of the Bonds of the issue described in and issued under the provisions of the within mentioned Indenture. Attached hereto is the complete text of the opinion of Kutak Rock LLP, a signed original of which is on file with the undersigned, delivered and dated the date of the original delivery of and payment for the Bonds. SIMMONS FIRST TRUST COMPANY, N.A., as Trustee Authorized Signature 10-34187.07 A-5 9 (Form of Assignment) ASSIGNMENT FOR VALUE RECEIVED, , hereby sells, assigns, and transfers unto , the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints as attorney to transfer the within Bond on the books kept for registration thereof with full power of substitution in the premises. DATE: __________,20__ Transferor GUARANTEED BY: 0 NOTICE: Signature(s) must be guaranteed by an institution satisfactory to the Trustee or other transfer agent. 0 10-34187.07 • EXHIBIT B TO TRUST INDENTURE COVERAGE CERTIFICATE City of Fayetteville, Arkansas Series 2002 Sales and Use Tax Capital Improvement Bonds Date: TO: Simmons First Trust Company, as Trustee This certificate is provided pursuant to the provisions of Section 212 of the Trust Indenture dated as of June 1, 2002 (the "Indenture"), by and between the City of Fayetteville, Arkansas (the "Issuer") and you, as trustee, in connection with (i) the proposed issuance of Additional Bonds or (ii) a drawdown under an RLF Loan. In connection with such issuance or drawdown, the undersigned certifies as follows: (a) Receipts of Sales and Use Tax by Trustee for preceding twelve (12) months: • (b) Maximum Annual Debt Service on all Outstanding Bonds and RLF Loans, plus (i) the proposed Additional Bonds or (ii) following the drawdown on the RLF Loan: $ (c) (a) divided by (b) _ % (which is greater than 125%) The undersigned hereby certifies that he is authorized to deliver this Certificate on behalf of the Issuer. No Event of Default exists under the Indenture and, to the knowledge of the undersigned, no event has occurred and continues which with notice or lapse of time or both would constitute an Event of Default under the Indenture. All capitalized terms not otherwise defined herein shall have the meanings set forth in the Indenture. CITY OF FAYETTEVILLE, ARKANSAS By. Administrative Services Director 10-34187.07 B -I • EXHIBIT C TO TRUST INDENTURE REQUISITION City of Fayetteville, Arkansas Series 2002 Sales and Use Tax Capital Improvement Bonds Requisition No.: TO: Simmons First Trust Company, as Trustee Pursuant to the provisions of Section 502 of the Trust Indenture dated as of June 1, 2002 (the "Indenture"), by and between the City of Fayetteville, Arkansas (the "Issuer") and you, as trustee, you are authorized to make the following described payment directly to the Payee named below from the Project Fund: Name and Address of Payee: • Amount of Payment: General Classification of the Expenditures: The undersigned hereby certifies that he is authorized to deliver this Requisition on behalf of the Issuer. The amount requested hereunder has not been the basis for any previous Requisition by the Issuer and is justly due and owing to the person(s) named herein as a proper payment or reimbursement of a Project Cost. No Event of Default exists under the Indenture and, to the knowledge of the undersigned, no event has occurred and continues which with notice or lapse of time or both would constitute an Event of Default under the Indenture. CITY OF FAYETTEVILLE, ARKANSAS • By: Authorized Representative 10-34187.07 C-1 0 0 C EXECUTION COPY rn Nillll:V (II)mats u I DR 1 between CITY OF FAYETTEVILLE, ARKANSAS SIMMONS FIRST TRUST COMPANY, N.A. as Trustee Dated as of June 20, 2002 Relating to: $25,000,000 City of Fayetteville, Arkansas Sales and Use Tax Capital Improvement Bonds Series 2002 Prepared by: Kutak Rock LLP 425 West Capitol Avenue Suite 1100 Little Rock, Arkansas 72201 10-36562O3 TAX REGULATORY AGREEMENT THIS TAX REGULATORY AGREEMENT (this "Tax Regulatory Agreement) is made and dated as of June 20, 2002, by and between the CITY OF FAYETTEVILLE, ARKANSAS, a city of the first class and political subdivision of the State of Arkansas (the "Issuer"), and SIMMONS FIRST TRUST COMPANY, N.A., a national banking association organized and existing under the laws of the United States of America, not in its individual capacity but solely in its capacity as the trustee (the "Trustee") named under that certain Trust Indenture dated as of June 1, 2002, by and between the Issuer and the Trustee (the "Indenture"). WITNESSETH: WHEREAS, pursuant to the Constitution and laws of the State of Arkansas, including particularly Amendment 62 and Arkansas Code Annotated §§ 14-164-301 et seq. (as from time to time amended, the "Authorizing Legislation"), the Issuer has authorized the issuance of $25,000,000 principal amount of its Sales and Use Tax Capital Improvement Bonds, Series 2002 (the "Series 2002 Bonds"), pursuant to the Indenture and Ordinance No. 4389, adopted and approved on May 7, 2002 (the "Authorizing Ordinance"), for the purposes of providing the funds to (i) acquire, construct, reconstruct, extend, improve and equip certain wastewater treatment plants, sewerage and related facilities as specified in the Authorizing Ordinance (the "Project") (ii) funding a debt service reserve, and (iii) paying the costs of issuance of the Series 2002 Bonds; and • WHEREAS, the Issuer has determined that the issuance, sale and delivery of the Series 2002 Bonds is necessary in order to provide a portion of the financing for the Project; and WHEREAS, this Tax Regulatory Agreement has been entered into by the Issuer and the Trustee to provide for compliance with the provisions of the Internal Revenue Code of 1986, as amended, and the Regulations promulgated thereunder; and WHEREAS, this Tax Regulatory Agreement is executed in part for the purpose of setting forth the facts, estimates and expectations of the Issuer on the date hereof as to future events regarding the Series 2002 Bonds; NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Issuer and the Trustee hereby agree as follows: ARTICLE I DEFINITIONS Section I.I. Definitions. The following words and phrases shall have the following meanings. Any capitalized word or term used herein but not defined herein shall have the same meaning given in the Indenture. • 10-36562.03 • "Adjusted Fair Market Value" of an investment means the Fair Market Value plus the sum of all adjustments, if any, made to the issue price of such investment under Section 1272 of the Code, since the date the investment became a Nonpurpose Obligation. "Arbitrage Rebate Consultant" means an accounting firm or a firm of attorneys or another person or firm with knowledge of or experience in advising bond trustees with respect to the provisions of Section 148(f) of the Code. "Bond Counsel" means Kutak Rock LLP or an attorney or firm of attorneys recognized as having expertise in matters relating to the issuance of tax-exempt obligations reasonably acceptable to the Trustee. "Bond Year" means the one-year period beginning on the day after expiration of the preceding bond year. The first Bond Year begins on the date of issue of the Series 2002 Bonds and ends June!, 2003. "Code" means the Internal Revenue Code of 1986, as amended, and the Regulations thereunder. "Computation Period" means each period from the date of issue through the date on which a determination of the Rebate Amount is made. "Costs of Issuance" means all costs incurred in connection with the borrowing. • Examples of costs of issuance include (but are not limited to): (a) underwriter's spread (whether realized directly or derived through purchase of the Series 2002 Bonds at a discount below the price at which a substantial number of Series 2002 Bonds are sold to the public); (b) counsel fees (including bond counsel, underwriter's counsel, issuer's counsel, trustee counsel and any other specialized counsel fees incurred in connection with the borrowing); (c) financial advisor fees (including the Issuer's financial advisor) incurred in connection with the borrowing; (d) rating agency fees; (e) trustee fees incurred in connection with the borrowing; (1) paying agent and certifying and authenticating agent fees related to issuance of the Series 2002 Bonds; (g) accountant fees related to issuance of the Series 2002 Bonds; (h) printing costs (for the Series 2002 Bonds and of preliminary and final offering materials); and (i) costs incurred in connection with the required public approval process (e.g., publication costs for public notices generally and costs of any public hearing or voter • referendum or election expense); 10-36562.03 2 • "Fair Market Value" of an investment means the fair market value, including accrued interest, of such investment at the time it becomes a Nonpurpose Obligation. "Gross Proceeds" means: (a) Sale proceeds (as defined in Section 1.148-1(b) of the Regulations); (b) Investment proceeds (as defined in Section 1.148-1(b) of the Regulations); (c) Transferred proceeds (as defined in Section 1.148-9 of the Regulations); (d) Any amounts held as a sinking fund for the Series 2002 Bonds; (e) Any amounts held in a pledged fund or reserve fund for the Series 2002 Bonds; and (f) Any other replacement proceeds (as defined in Section 1.148-1(c) of the Regulations). "Net Sale Proceeds" means sale proceeds, less the portion of those sales proceeds invested in a reasonably required reserve or replacement fund under Section 148(d) of the Code. "Nonpurpose Obligation" means any investment property, as defined in Section 148(b) of the Code, in which Gross Proceeds are invested and which is not acquired to carry out the governmental purpose of the issue. • "Project" means the various facilities to be financed with proceeds of the Series 2002 Bonds. "Qualified Project Costs" means Project Costs (as defined in the Indenture); provided, however, that (i) Project Costs paid or incurred more than sixty (60) days prior to October 5, 1999 shall not be deemed to be Qualified Project Costs (except for costs under the de minimis and preliminary expenditure exceptions set forth in Section 1.150-2 of the U.S. Treasury Regulations), (ii) Costs of Issuance shall not be deemed to be Qualified Project Costs, and (iii) interest prior to the Completion Date (as defined in the Indenture) of the Project, letter of credit fees, and municipal bond insurance premiums which represent a transfer of credit risk must be allocated between Qualified Project Costs and other costs and expenses to be paid with Series 2002 Bond proceeds. "Rebate Amount" means, with respect to the Series 2002 Bonds, the amount computed as described in Section 4.13 hereof. "Regulation" or "Regulations" means the temporary, proposed or final Income Tax Regulations promulgated by the Department of the Treasury and applicable to the Series 2002 Bonds. "Series 2002 Bonds" means the Issuer's $25,000,000 Sales and Use Tax Capital Improvement Bonds, Series 2002. • "State" means the State of Arkansas. 10-36562.03 3 • "Tax Regulatory Agreement" means this Tax Regulatory Agreement. "Trustee" means Simmons First Trust Company, N.A., a national banking association organized and existing under the laws of the United States of America, or any successor trustee under the Indenture. "Underwriter" means Stephens Inc. "Yield" means, with respect to the Series 2002 Bonds, yield computed under Section 1.148-4 of the Regulations, and with respect to an investment, yield computed under Section 1.148-5 of the Regulations. Section 1.2. Reliance on Issuer Information. Bond Counsel and the Trustee shall be permitted to rely upon the contents of this Tax Regulatory Agreement and any certification, document or instructions provided pursuant to this Tax Regulatory Agreement and shall not be responsible or liable in any way for the accuracy of their contents or the failure of the Issuer to deliver any required information. ARTICLE II REPRESENTATIONS AND COVENANTS BY THE ISSUER Section 2.1. Organization and Authority. The Issuer hereby represents that it (1) is a . political subdivision duly organized and existing under the laws of the State of Arkansas, and (2) has lawful power and authority to issue the Series 2002 Bonds for the purposes set forth in the Indenture, to enter into, execute and deliver the Indenture and this Tax Regulatory Agreement, and to carry out its obligations under such documents, and (3) by all necessary action has been duly authorized to execute and deliver the Indenture and this Tax Regulatory Agreement, acting by and through its duly authorized officials. Section 2.2. Use of Bond Proceeds; Ownership of the Project. The Issuer hereby represents and warrants for the benefit of the Bond Counsel, the Trustee and holders of the Series 2002 Bonds that the proceeds of the Series 2002 Bonds will be used to finance or reimburse a portion of the costs of the acquisition, construction, reconstruction, extending, improving and equipping of the Project (except those limited proceeds which are used to fund a debt service reserve and to pay Costs of Issuance) and that all of the Project financed with proceeds of the Series 2002 Bonds will be owned and operated by the Issuer. Section 2.3. Change in Use or Ownership of the Project. The Issuer represents that it intends to own and operate the Project at all times during the term of the Series 2002 Bonds. The Issuer does not know of any reason why the Project will not be so used in the absence of (i) supervening circumstances not now anticipated by it, (ii) adverse circumstances beyond its control, or (iii) obsolescence of such insubstantial parts or portions thereof as may occur as a result of normal wear and tear. The Issuer covenants that it will not change the use, ownership or nature of any portion of the Project so long as any of the Series 2002 Bonds are outstanding . unless, in the written opinion of Bond Counsel, such change will not result in the inclusion of interest on the Series 2002 Bonds in the gross income of the recipient thereof for purposes of federal income taxation, except that the Issuer may, without an opinion, sell or otherwise dispose 10-36562.03 4 • of minor parts or portions of the Project as may be necessary or desirable due to normal wear, tear or obsolescence. Section 2.4. Bonds in Registered Form. The Series 2002 Bonds will be issued in registered form as required by Section 149(a) of the Code. Section 2.5. Information Reporting. The Issuer covenants to file IRS Form 8038-G (Information Return for Tax -Exempt Governmental Obligations) with the Internal Revenue Service in connection with the issuance of the Series 2002 Bonds, as required by § 149(e) of the Code. Section 2.6. No Federal Guarantee. The Issuer represents and covenants that it has not taken and will not take, or permit to be taken, any action that will cause the Series 2002 Bonds to be "federally guaranteed" within the meaning of § 149(b) of the Code. Section 2.7. Series 2002 Bonds Not Hedge Bonds. The Issuer represents that it reasonably expects to expend at least 85 percent of the "spendable proceeds" of the Series 2002 Bonds for the specific purposes for which the Series 2002 Bonds are issued within three years of the date hereof and not more than 50 percent of the proceeds of the Series 2002 Bonds will be invested in Nonpurpose Obligations having substantially guaranteed Yields for four years or more. Section 2.8. Reimbursement The Issuer acknowledges its understanding that if any • proceeds of the Series 2002 Bonds are used to reimburse the Issuer for costs relating to the Project that were paid prior to the date of issuance of the Series 2002 Bonds, such costs shall be deemed Qualified Project Costs eligible for requisition from the Project Fund by the Issuer only if the reimbursement is valid under §1.150-2 of the Regulations. The Issuer further acknowledges its understanding that, in general, a reimbursement is valid only if (A) such costs were paid no sooner than sixty (60) days prior to October 5, 1999, the date the Issuer adopted an ordinance expressing its official intent to issue tax-exempt bonds to finance the Project, and (B) Series 2002 Bond proceeds are allocated to reimburse such costs within eighteen (18) months after the later of the date such expenditures were made or the date the Project is placed in service, but in no event later than three (3) years after the original expenditure was paid. Series 2.9. No Replacement. No portion of the amounts received from the sale of the Series 2002 Bonds will be used as a substitute for other funds which were otherwise to be used as a source of financing for the Project, and which will be used to acquire, directly or indirectly, investment obligations producing a Yield in excess of the Yield on the Series 2002 Bonds. Section 2.10. No Abusive Arbitrage Device. The Issuer represents that the Series 2002 Bonds are not and will not be part of a transaction or series of transactions that has the effect of (1) enabling the Issuer to exploit the difference between tax-exempt and taxable interest rates to gain a material financial advantage, and (2) overburdening the tax-exempt bond market. Section 2.11. Single Issue. The Issuer represents that the Series 2002 Bonds constitute • a single "issue" under §1.150-1(c) of the Regulations. No other obligations of the Issuer (1) are being sold within fifteen (15) days of the sale of the Series 2002 Bonds, (2) are being sold pursuant to the same plan of financing as the Series 2002 Bonds, and (3) are expected to be paid 10-36562.03 5 from substantially the same source of funds (disregarding guaranties from third parties, such as • bond insurance) as the Series 2002 Bonds. Section 2.12. Representations as to Limits on the Use of Proceeds. The amount of Series 2002 Bond proceeds to be deposited to the Debt Service Reserve Fund shall not exceed the lesser of (i) 10 percent of the initial stated principal amount of the Series 2002 Bonds, (ii) the maximum annual debt service on the Series 2002 Bonds, or (iii) 125 percent of the average annual debt service on the Series 2002 Bonds. Section 2.13. Reliance on Representations of Issuer; Survival. The Issuer understands and acknowledges that Bond Counsel is relying on the various representations, warranties and covenants of the Issuer contained in this Tax Regulatory Agreement for purposes of delivering its approving opinion. All representations and certifications of the Issuer contained in this Tax Regulatory Agreement will survive the execution and delivery of this Tax Regulatory Agreement and the issuance, sale and delivery of the Series 2002 Bonds, as representations of facts existing as of the date of the execution and delivery of this Tax Regulatory Agreement. The covenants and warranties of the Issuer contained in this Article II will remain in full force and effect notwithstanding the defeasance of the Series 2002 Bonds and the discharge of the Indenture, until the final maturity date of all Series 2002 Bonds Outstanding and payment of such Series 2002 Bonds. ARTICLE III . COVENANTS OF THE TRUSTEE Section 3.1. Covenants of the Trustee. The Trustee covenants to the Issuer that it will comply with all applicable provisions of this Tax Regulatory Agreement and any written letter or opinion of Bond Counsel which sets forth any action necessary by the Trustee to preserve interest on the Series 2002 Bonds from the gross income of the recipients thereof for federal income tax purposes. Such covenant will remain in full force and effect notwithstanding the defeasance of the Series 2002 Bonds and the discharge of the Indenture, until the final maturity date of all Series 2002 Bonds Outstanding and payment of such Series 2002 Bonds. The Trustee shall keep records of the expenditure of Gross Proceeds of the Series 2002 Bonds for the term of this Tax Regulatory Agreement. Such records, if any, as are maintained by the Trustee may, at the option of the Trustee, be maintained by electronic filing or record keeping systems. ARTICLE IV ARBITRAGE AND REBATE Section 4.1. Purpose. The purpose of this Article IV is to certify, pursuant to §1.148- 2(b) of the Regulations, the reasonable expectations of the Issuer as to the sources, uses and investment of Series 2002 Bond proceeds and other moneys in order to support the Issuer's conclusion that the Series 2002 Bonds will not be deemed to be "arbitrage bonds" within the meaning of § 148 of the Code. The person executing this Tax Regulatory Agreement on behalf of the Issuer is an officer of the Issuer responsible for issuing and delivering the Series 2002 10-36562.03 6 Bonds. The Issuer has not been notified of any listing or proposed listing of the Issuer by the • Internal Revenue Service as an issuer that may not certify its bonds. Section 4.2. Reasonable Expectations. The facts, estimates, expectations and representations of the Issuer set forth in this Article IV are based upon the Issuer's understanding of various documents and certificates executed in connection with the issuance of the Series 2002 Bonds, including (1) the Indenture, (2) this Tax Regulatory Agreement, and (3) a certificate of the Underwriter. To the Issuer's knowledge, the facts, estimates and expectations set forth in this Tax Regulatory Agreement are reasonable. The Issuer has no knowledge that would cause it to believe that the representations, warranties and certifications described herein are unreasonable or inaccurate or may not be relied upon. Section 4.3. Authority and Purpose for Series 2002 Bonds. The Issuer is issuing and delivering the Series 2002 Bonds simultaneously with the execution of this Tax Regulatory Agreement, pursuant to the Authorizing Legislation, the Indenture and an ordinance adopted by the City Council of the Issuer. The Series 2002 Bonds are being issued for the purposes of providing a portion of the funds needed for (i) acquiring, constructing, reconstructing, extending, improving and equipping the Project, (ii) funding a debt service reserve, and (iii) paying Costs of Issuance of the Series 2002 Bonds. The proceeds of the Series 2002 Bonds to be used to acquire, construct, reconstruct, extend, improve and equip the Project, together with other available moneys and investment earnings on such moneys and proceeds, do not exceed the amount necessary to provide for such acquisition, construction, equipping and improvement. • Section 4.4. Funds and Accounts. The following funds and accounts have been established with the Trustee pursuant to the Indenture in connection with the Series 2002 Bonds: Project Fund; Revenue Fund; Bond Fund; Redemption Fund; Debt Service Reserve Fund; Costs of Issuance Fund; and Rebate Fund. Section 4.5. Source and Disbursement of Series 2002 Bond Proceeds. The Series 2002 Bonds will be sold to the public at a purchase price equal to $25,431,154.42 (representing the $25,000,000.00 par amount of the Series 2002 Bonds, plus an original offering premium of $388,105.70 and $43,048.72 of accrued interest thereon). The Underwriter will retain an underwriting discount of $175,000.00. Accordingly, the net amount of proceeds of the Series 2002 Bonds to be received by the Issuer shall be $25,256,154.42, which amount shall be • deposited and expended as follows: 10.36562.03 7 • (a) $43,048.72, representing the accrued interest on the Series 2002 Bonds, will be transferred to the Interest Account of the Bond Fund and will be utilized to make a portion of the first interest payment due on the Series 2002 Bonds on December 1, 2002; (b) $1,250,000.00, an amount equal to the Reserve Requirement (as defined in the Indenture), shall be deposited in the Debt Service Reserve Fund; (c) $75,000.00 of the proceeds will be deposited into the Cost of Issuance Fund and used to pay Costs of Issuance of the Series 2002 Bonds; and (d) the remaining $23,888,105.70 of proceeds will be deposited in the Project Fund and will be used to pay Qualified Project Costs. Section 4.6. Costs of Issuance Fund. The Indenture creates the Costs of Issuance Fund which will be initially funded with $75,000.00 of Series 2002 Bond proceeds. Moneys in the Cost of Issuance Fund will be used to pay Costs of Issuance associated with the Series 2002 Bonds. Proceeds of the Series 2002 Bonds deposited in the Costs of Issuance Fund shall be spent within a one-year period beginning on the date of issuance of the Series 2002 Bonds and may be invested until expended in Nonpurpose Obligations that bear a Yield that is materially higher than the Yield on the Series 2002 Bonds. The earnings on such investments will be subject to the rebate requirements described in Section 4.13 of this Tax Regulatory Agreement unless the Issuer qualifies under one of the rebate exemptions described in the Code and the Regulations. Section 4.7. Revenue Fund, Bond Fund and Redemption Fund The Indenture creates the Revenue Fund, the Bond Fund and the Redemption Fund. Moneys will be transferred to the Revenue Fund, and from the Revenue Fund to the Bond Fund as described in the Indenture, to provide for the payment of principal of and interest on the Series 2002 Bonds as due. Moneys will be transferred from the Revenue Fund to the Redemption Fund as described in the Indenture to provide for the payment prior to maturity of the principal of the Series 2002 Bonds. Moneys deposited in the Revenue Fund, the Bond Fund and the Redemption Fund will be spent within a 13 -month period beginning on the date of the original deposit in the Revenue Fund, and any amount received from investment of moneys held in the Revenue Fund, the Bond Fund or the Redemption Fund will be spent within a one-year period beginning on the date of receipt. The Revenue Fund, the Bond Fund and the Redemption Fund will be completely depleted at least once a year. Accordingly, the Revenue Fund, the Bond Fund and the Redemption Fund constitute "bona fide debt service funds" for the Series 2002 Bonds. Amounts in the Revenue Fund, Bond Fund and Redemption Fund may be invested until expended in Nonpurpose Obligations that bear a Yield that is materially higher than the Yield on the Series 2002 Bonds. The earnings on such investments will be subject to the rebate requirements described in Section 4.13 of this Tax Regulatory Agreement for any year in which the sum of such investment earnings equals or exceeds $100,000 unless the Issuer qualifies under one of the other rebate exemptions described in the Code and the Regulations. Section 4.8. Debt Service Reserve Fund. The Indenture creates the Debt Service • Reserve Fund into which $1,250,000.00 of Series 2002 Bond proceeds will be deposited. 10-36562.03 8 • Moneys in the Debt Service Reserve Fund will be expended solely to pay principal of and interest on the Series 2002 Bonds when the same become due, when and if there is a deficiency in the Bond Fund available to make such payments. The Debt Service Reserve Fund will be maintained in an amount equal to 5% of the initial principal amount of the Series 2002 Bonds. The Issuer is of the opinion, based on representations of the Underwriter, that the amount deposited in the Debt Service Reserve Fund is reasonably required for the purposes for which such fund is established. Accordingly, the Debt Service Reserve Fund is a "reasonably required reserve fund" for the Series 2002 Bonds within the meaning of the Code and the Regulations. Amounts in the Debt Service Reserve Fund may be invested until expended in Nonpurpose Obligations that bear a Yield that is materially higher than the Yield on the Series 2002 Bonds. The earnings on such investments will be subject to the rebate requirements described in Section 4.13 of this Tax Regulatory Agreement unless the Issuer qualifies under one of the rebate exemptions described in the Code and the Regulations. Section 4.9. Project Fund. The Indenture creates the Project Fund which will be initially funded with $23,888,105.70 of Series 2002 Bond proceeds. Moneys in the Project Fund will be used to pay costs associated with the acquisition, construction, reconstruction, extending, improving and equipping of the Project. The Issuer has incurred, or will incur within six (6) months of the date of issuance of the Series 2002 Bonds, a substantial binding obligation to a third party to spend at least 5% of the Net Sale Proceeds on the Project. The completion of the Project and the allocation of Net Sale Proceeds to expenditures will proceed with due diligence. Completion of the portion of the Project to be financed with proceeds of the Series 2002 Bonds • is expected to occur on or before June 20, 2005. At least 85% of the Net Sale Proceeds will be allocated to Project expenditures within three (3) years from the date of issuance of the Series 2002 Bonds. Until June 20, 2005, the Net Sale Proceeds of the Series 2002 Bonds deposited in the Project Fund may be invested until expended in Nonpurpose Obligations that bear a Yield that is materially higher than the Yield on the Series 2002 Bonds. The earnings on such investments will be subject to the rebate requirements described in Section 4.13 of this Tax Regulatory Agreement unless the Issuer qualifies under one of the rebate exemptions described in the Code and the Regulations. Section 4.10. Yield on the Series 2002 Bonds. (a) The Underwriter has certified (i) that the initial offering price of the Series 2002 Bonds, as set forth in Section 4.5 of this Tax Regulatory Agreement, represents the maximum initial offering price at which a substantial amount of each maturity of the Series 2002 Bonds were offered for sale and sold to purchasers (exclusive of bond houses, brokers or similar persons acting in the capacity of underwriters or wholesalers) through a bona fide offering, (ii) that such initial offering prices were established by a bona fide bid without regard to any amounts which would increase the Yield on any maturity of the Series 2002 Bonds above its market yield and (iii) that the description of interest rates and Yields contained in the final Official Statement with respect to the Series 2002 Bonds constitutes a true and correct summary thereof. (b) The Yield on the Series 2002 Bonds has been calculated by the Underwriter to be not less than 2.795688%. The calculation of Yield has been made on the basis of semiannual . compounding using a 360 -day year and upon the assumption that payments are made on the last day of each semiannual interest payment period. For purposes of computing Yield on 10-36562.03 9 . Nonpurpose Obligations, the purchase price of any such obligation is equal to the Fair Market Value as of the date of a binding contract to acquire such obligation. Section 4.11. Arbitrage Representations. Pursuant to the issuance of the Series 2002 Bonds, the Issuer hereby represents, certifies and warrants as follows: (a) Other than Revenue Fund, the Bond Fund, the Redemption Fund, the Project Fund, the Debt Service Reserve Fund and the Costs of Issuance Fund created under the Indenture, there has not been created or established and the Issuer does not expect that there will be created or established, any sinking fund, pledged fund or similar fund, including, without limitation, any arrangement under which money, securities or obligations are pledged directly or indirectly to secure the Series 2002 Bonds or any contract securing the Series 2002 Bonds or any arrangement providing for compensating balances to be maintained by the Issuer with any holder of the Series 2002 Bonds. (b) All funds established pursuant to the Indenture will be invested pursuant to the Indenture and this Tax Regulatory Agreement. (c) The Issuer will instruct the Trustee with respect to investment of the various funds held under the Indenture. (i) The Issuer will not instruct the Trustee to invest in any Nonpurpose Obligation unless at Fair Market Value. The Fair Market Value of a • Nonpurpose Obligation shall be the price at which a willing buyer would purchase the investment from a willing seller in a bona fide, arm's -length transaction determined as of the date on which the contract to buy or sell the investment is entered into. (ii) If a Nonpurpose Obligation is acquired or sold or disposed of in an arm's length transaction without regard to any amount paid to reduce the Yield on the Nonpurpose Obligation, or any reduction in sale or disposition price to reduce the Rebate Amount, the Fair Market Value of the Nonpurpose Obligation shall be the amount paid for, or the amount realized upon the sale or disposition of, the Nonpurpose Obligation. (iii) If a United States Treasury obligation is acquired directly from or sold or disposed of directly to the United States Treasury, such acquisition or sale or disposition shall be treated as establishing a market for the obligation and as establishing the Fair Market Value of the obligation. (iv) The purchase or sale of a certificate of deposit issued by a commercial bank will be at Fair Market Value if the Yield at which it is purchased is not less than (i) the Yield of comparable United States Treasury Obligations and (ii) the highest Yield posted by such provider on comparable deposits to the public. (v) The Trustee, on behalf of the Issuer, may not purchase or sell Nonpurpose Obligations pursuant to any investment contract or repurchase 10-36562.03 10 . agreement unless (i) it receives at least three bids from persons other than those with an interest in the Series 2002 Bonds, (ii) a certification is provided by the person whose bid is accepted stating the administrative costs that are reasonably expected to be paid to third parties in connection with the investment contract, (iii) a certification is provided by the person whose bid is accepted stating that the Yield of the investment contract is not less than the Yield of comparable investment contracts to other persons who do not utilize proceeds of tax-exempt bonds to purchase such contracts, (iv) the Yield on the investment contract is at least equal to the Yield offered under the highest bid received from a noninterested party, (v) the bidding for the investment contract takes into account as a significant factor the expected drawdown schedule of the Series 2002 Bond proceeds, and (vi) any collateral security requirements of the investment contract are reasonable. Section 4.12. Arbitrage Compliance. The Issuer acknowledges that the continued exclusion of interest on the Series 2002 Bonds from gross income of the recipients for purposes of federal income taxation depends, in part, upon compliance with the arbitrage limitations imposed by Section 148 of the Code, including the rebate requirement described in Sections 4.13, 4.14 and 4.15 below. The Issuer hereby agrees and covenants that it shall not permit at any time or times any of the proceeds of the Series 2002 Bonds or other funds of the Issuer to be used, directly or indirectly, to acquire any asset or obligation, the acquisition of which would cause the Series 2002 Bonds to be "arbitrage bonds" for purposes of Section 148 of the Code. • The Issuer further agrees and covenants that it shall do and perform all acts and things necessary in order to ensure that the requirements of Section 148 of the Code are met. To that end, the Issuer hereby agrees to take the actions described in Sections 4.13 through 4.15 below with respect to the investment of Gross Proceeds on deposit in the funds and accounts established under the Indenture and to direct the Trustee to make the required transfers and dispositions described in Sections 4.13, 4.14 and 4.15, below. Section 4.13. Rebate Fund; Calculation of Rebate Amount. Section 148(f) of the Code requires the payment to the United States of the excess of the amount earned on the investment of Gross Proceeds in Nonpurpose Obligations over the amount that would have been earned on such investments had the amount so invested been invested at a rate equal to the Yield on the Series 2002 Bonds, together with any income attributable to such excess. The Cost of Issuance Fund, the Project Fund, the Revenue Fund, the Bond Fund, the Redemption Fund, the Debt Service Reserve Fund and the Rebate Fund (defined below) are subject to this rebate requirement. In accordance with the requirements set out in the Code, the Rebate Fund (the "Rebate Fund") has been created in the Indenture with respect to the Series 2002 Bonds to be held by the Trustee and used as provided in this Section 4.13. The Rebate Fund shall be held and disbursed in accordance with the following: (a) All money at any time deposited in the Rebate Fund shall be held by the Trustee in trust, except as may otherwise be directed in writing by the Issuer, for payment to the federal government of the United States of America. All amounts deposited into or on deposit in the Rebate Fund shall be governed by this Tax Regulatory Agreement. The 10-36562.03 1 1 . Trustee shall be deemed conclusively to have complied with this Tax Regulatory Agreement if it follows the directions of the Issuer or an Arbitrage Rebate Consultant engaged by the Issuer, and shall have no liability or responsibility to enforce compliance by the Issuer with the terms of this Tax Regulatory Agreement. (b) (i) Any funds remaining in the Rebate Fund after redemption and payment of all the Series 2002 Bonds and the final payment to the United States of America described in Section 4.14 below, or provision made therefor including accrued interest and payment of any applicable fees and expenses to the Trustee and any Arbitrage• Rebate Consultant and satisfaction of the payment of the Rebate Amount in accordance with directions from the Issuer, shall be withdrawn by the Trustee upon written instructions from the Issuer and remitted to the Issuer. (ii) Notwithstanding anything to the contrary in this Tax Regulatory Agreement, any amount received from the investments of amounts held in the Rebate Fund which represents an amount earned shall be credited to and retained in the Rebate Fund upon the receipt thereof. (iii) In the event that on the first day of any Bond Year the amount on deposit in the Rebate Fund exceeds the aggregate Rebate Amount as certified by an Arbitrage Rebate Consultant engaged by or on behalf of the Issuer, the Trustee, upon written instructions from the Issuer, shall withdraw the excess from the Rebate Fund, • pay any amounts then due and payable under the Indenture and pay any remaining excess to the Issuer. (iv) For purposes of crediting amounts to the Rebate Fund or withdrawing amounts from the Rebate Fund, Nonpurpose Obligations shall be valued in the manner provided in this Tax Regulatory Agreement. (c) On or before 30 days following the end of the fifth Bond Year, upon the Issuer's written direction, an amount shall be deposited to the Rebate Fund by the Trustee from deposits made by the Issuer, if and to the extent required, so that the balance of the Rebate Fund shall equal the aggregate Rebate Amount required as of the end of such fifth Bond Year. (d) In order to meet the Issuer's obligations in complying with the rebate requirement of Section 148(f) of the Code, the Trustee and the Issuer agree and covenant to take the following actions: (i) For each investment of amounts held with respect to the Series 2002 Bonds (other than investments in obligations described in Section 103(a) of the Code, including amounts so treated) in the (I) Costs of Issuance Fund, (II) Project Fund, (III) Revenue Fund, (IV) Bond Fund, (V) Redemption Fund, (VI) Debt Service Reserve Fund, and (VII) Rebate Fund, the Trustee shall record the purchase date of such investment, its purchase price, the accrued interest due . on its purchase date, its face amount, its coupon rate, the frequency of its interest payment, and if disposed of, its disposition price, accrued interest due on its disposition date and its disposition date. If so engaged by the Issuer, an Arbitrage 10-36562.03 12 . Rebate Consultant shall calculate the Fair Market Value for such investments and the Yield thereon. The Yield for an investment shall be calculated by using as its purchase price its Fair Market Value on the purchase date of such investment or on the date on which it becomes a Nonpurpose Obligation, whichever is later. (ii) Any Arbitrage Rebate Consultant shall determine the amount of earnings received on all investments described in paragraph (i) above, other than investments in obligations described in Section 103(a) of the Code (including amounts so treated) which are not defined by the Code as "investment property" or amounts in the Revenue Fund, Bond Fund and Redemption Fund if the earnings on the Revenue Fund, Bond Fund and Redemption Fund do not, in the aggregate, exceed $100,000 for any Bond Year, during the Computation Periods ending with the following determination dates: (I) the last day of the first Bond Year and each succeeding last day of each Bond Year; (II) the maturity date of the Series 2002 Bonds; and (III) if all outstanding Series 2002 Bonds are redeemed prior to the maturity date of the Series 2002 Bonds, the date on which all Series 2002 Bonds are redeemed. In addition, where Nonpurpose Obligations are retained by the Trustee after retirement of the Series 2002 Bonds, any unrealized gains or losses as of the date of retirement of the Series 2002 Bonds must be taken into account in calculating the earnings on such Nonpurpose Obligations with each such obligation treated as sold for its Fair Market Value. In calculating the earnings described above, earnings received in a Bond Year shall include amounts • which would be treated as income under Section 1272 of the Code regarding the accrual of original issue discount. In addition, earnings received in any Bond Year within the Computation Period shall include the gain or loss on the sale of any investment determined by subtracting the Adjusted Fair Market Value of the investment from the disposition price of the investment. For purposes of assisting the Issuer or an Arbitrage Rebate Consultant engaged by or on behalf of the Issuer in making such determinations, the Trustee shall provide to the Issuer or Arbitrage Rebate Consultant all information requested by the Issuer or Arbitrage Rebate Consultant in the possession of the Trustee. (iii) For each Computation Period specified in paragraph (ii) above, the Issuer or an Arbitrage Rebate Consultant engaged by the Issuer shall determine the amount of earnings on all investments held in the Rebate Fund during the Computation Period. In calculating the earnings, earnings within the Computation Period shall include amounts which would be treated as income under Section 1272 of the Code regarding the accrual of original issue discount. In addition, earnings in any Bond Year within the Computation Period shall include the gain or loss on the sale of any investment determined by subtracting the Adjusted Fair Market Value of the investment from the disposition price of the investment. (iv) For each Computation Period specified in paragraph (ii) above, the Issuer or an Arbitrage Rebate Consultant engaged by the Issuer shall calculate the • Rebate Amount by any appropriate method described in the Code and Regulations applicable or which become applicable to the Series 2002 Bonds. 10-36562.03 13 . (v) For each Computation Period specified in paragraph (ii) above and within 30 days of the end of each such Computation Period, the Issuer or an Arbitrage Rebate Consultant engaged by the Issuer shall calculate the Rebate Amount and notify the Issuer (if the calculation is made by an Arbitrage Rebate Consultant) and the Trustee in writing of the Rebate Amount. If the Rebate Amount (less amounts previously rebated to the United States) exceeds the amount on deposit in the Rebate Fund, the Issuer shall immediately pay such amount to the Trustee for deposit into the Rebate Fund. If the Issuer does not pay such amount within 20 days of notice of the Rebate Amount to the Trustee, the Trustee shall withdraw and transfer such amount, first, from amounts on deposit in the funds and accounts under the Indenture (and the Trustee, without direction from the Issuer, and without making demand on, but with notice to, the Issuer, shall immediately withdraw such amount from such funds and accounts) and, if such amounts are insufficient, second, from any other source. Section 4.14. Payment to United States. (a) Within 45 days after the end of the fifth Bond Year and after every fifth Bond Year thereafter, the Issuer shall direct the Trustee to pay to the United States, not later than 45 days after the end of the fifth Bond Year, and not later than five years after each preceding payment was due or would have been due if a Rebate Amount existed at that time, an amount equal to not less than the excess of (i) 90% of the sum of the balance, if any, in the Rebate Fund at such time plus all previous payments made to the United States, over (ii) all previous payments made to the United States. The Issuer shall direct the • Trustee and the Trustee, in accordance with such directions, shall pay to the United States, not later than 60 days after the last outstanding Series 2002 Bonds are paid or redeemed, 100% of the Rebate Amount as of the end of the final Computation Period less all previous payments made to the United States. (b) Each payment of Rebate Amount shall be mailed by the Trustee to the Internal Revenue Service Center, Ogden, Utah 84201. Each payment shall be accompanied by a copy of the Form 8038-T and the statement summarizing the determination of the Rebate Amount. (c) If during any Computation Period, the aggregate amount earned on Nonpurpose Obligations in which the Gross Proceeds of the Series 2002 Bonds are invested is less than the amount that would have been earned if the obligations had been invested at a rate equal to the Yield on the Series 2002 Bonds, such deficit may at the request of the Issuer be withdrawn from the Rebate Fund and paid to the Issuer. The Issuer may direct that any overpayment of rebate may be recovered from any Rebate Amount previously paid to the United States under any procedure that may, after the date of this Tax Regulatory Agreement, be permitted by the Code or the Regulations. (d) The Issuer shall provide to the Trustee all information and calculations necessary for the Trustee to fulfill its obligations under this Section 4.14. Section 4.15. Recordkeeping. In connection with the rebate requirement, the Trustee and the Issuer shall maintain the following records: • 10-36562.03 14 . (a) The Trustee and the Issuer shall record all amounts paid to the United States pursuant to Section 4.14. (b) The Trustee and the Issuer shall retain records of any rebate calculations until six years after the retirement of the last obligation of the issue. Section 4.16. Payment to Arbitrage Rebate Consultant. The Issuer shall pay the fees and expenses of any Arbitrage Rebate Consultant. If at any time when the Issuer has retained and is required to pay an Arbitrage Rebate Consultant and the Issuer does not make sufficient payment, the Trustee, 20 days after receiving from the Arbitrage Rebate Consultant a demand for such payment, shall withdraw from the funds and accounts established under the Indenture (except for the Rebate Fund) such amount as may be needed to pay the fees and expenses of the Arbitrage Rebate Consultant. ARTICLE V TERM OF TAX REGULATORY AGREEMENT Section 5.1. Term. Including all representations, warranties and covenants herein, this Tax Regulatory Agreement shall be effective from the date of issuance of the Series 2002 Bonds through the date that is six years after the last Series 2002 Bond is redeemed, paid or deemed paid pursuant to the Indenture. • ARTICLE VI AMENDMENTS Section 6.1. Amendments. Notwithstanding any other provision hereof, any provision of this Tax Regulatory Agreement may be deleted or modified at any time at the option of the Issuer if the Issuer has provided to the Trustee an opinion of Bond Counsel, in form and substance satisfactory to the Trustee, that such deletion or modification will not adversely affect the exclusion of interest on the Series 2002 Bonds from the gross income of the recipients for purposes of federal income taxation. ARTICLE VII EVENTS OF DEFAULT; REMEDIES Section 7.1. Events of Default. The failure of either party to this Tax Regulatory Agreement to perform any of its required duties under any provision hereof shall constitute an Event of Default under this Tax Regulatory Agreement. Section 7.2. Remedies for an Event of Default. Upon an occurrence of an Event of Default under Section 7.1 hereof, the Issuer or the Trustee may, in their discretion, proceed to protect and enforce their rights and the rights of the holders of the Series 2002 Bonds by pursuing any available remedy, including a suit at law or in equity. 10-36562.03 15 • ARTICLE VIII PROTECTION OF TRUSTEE Section 8.1. Protection of Trustee. (a) It is hereby recognized and agreed that the Trustee is entering into this Tax Regulatory Agreement in its respective capacity as Trustee under the Indenture, and the Trustee shall, with respect to this Tax Regulatory Agreement, be entitled to all of the same rights, protections and immunities hereunder as are afforded to the Trustee under the Indenture. (b) The parties hereto acknowledge that the Trustee has no liabilities with respect to compliance with the Code except to take administrative actions as directed by the Issuer pursuant to this Tax Regulatory Agreement. (c) The Issuer hereby agrees to indemnify and hold the Trustee harmless for, from and against any and all claims, losses, damages, judgments, costs and expenses incurred by the Trustee relating to this Tax Regulatory Agreement except for claims caused by the negligence, breach of trust or willful misconduct of the Trustee. C I [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.] CI 10-36562.03 16 • IN WITNESS WHEREOF, the Issuer and the Trustee have caused this Tax Regulatory Agreement to be executed in their respective names and by their proper officers thereunto duly authorized, all as of the day and year first written above. CITY OF FAYETTEVILLE, ARKANSAS By: 4? Mayor SIMMONS FIRST TRUST COMPANY, N.A., as Trustee By: Title: orporate Trust fficer • • [SIGNATURE PAGE TO TAX REGULATORY AGREEMENT] 10-36562.03 17 EXECUTION COPY • CONTINUING DISCLOSURE AGREEMENT This Continuing Disclosure Agreement dated as of June 20, 2002 (this "Agreement"), is executed and delivered by the City of Fayetteville, Arkansas (the "City") and Simmons First Trust Company, N.A., as trustee (the "Trustee"), in connection with the issuance of the City's $25,000,000 Sales and Use Tax Capital Improvement Bonds, Series 2002 (the "Bonds"). The Bonds are being issued pursuant to the terms and provisions of Ordinance No. 4389 duly adopted by the City Council of the City on May 7, 2002 (the "Authorizing Ordinance"), and a Trust Indenture dated as of June 1, 2002 (the "Indenture"), by and between the City and the Trustee. In connection with the issuance of the Bonds, the City and the Trustee agree as follows: Section 1. Purpose of this Agreement. This Agreement is being executed and delivered by the City and the Trustee for the benefit of the Beneficial Owners of the Bonds and in order to assist the Participating Underwriter in complying with, and constitutes the written undertaking for the benefit of the Beneficial Owners of the Bonds required by, Section (b)(5)(i) of Securities and Exchange Commission Rule 15c2-12 under the Securities Act of 1934, as amended (17 C.F.R. Section 240.15c2-12) (the "Rule"). The City hereby represents that it has not failed to comply with any previous undertaking pursuant to the Rule. Section 2. Definitions. In addition to the definitions set forth in the Indenture, which apply to any capitalized term used in this Agreement unless otherwise defined in this Section, the following capitalized terms shall have the following meanings: • "Annual Financial Information" shall mean the annual financial information provided by the City pursuant to, and as described in, Sections 3 and 4 of this Agreement. "Arkansas State Repository" shall mean any public or private repository or entity as may be designated by the State of Arkansas as a state repository for the purpose of the Rule and recognized as such by the SEC. As of the date of this Agreement, there is no Arkansas State Repository. "Beneficial Owner" shall mean any person which has or shares the power, directly or indirectly, to vote or consent with respect to, or to dispose of ownership of, any Bonds, including persons holding Bonds through nominees, depositories or other intermediaries. "Disclosure Representative" shall mean the City's Administrative Services Director or his or her designee, or such other officer or employee as the City shall designate in writing to the Trustee from time to time. "Fiscal Year" shall mean the 12 -month period used, at any time, by the City for accounting purposes, which may be the calendar year. "MSRB" shall mean the Municipal Securities Rulemaking Board established in accordance with the provisions of Section 15B(b)(1) of the 1934 Act. • 10-35374.03 "National Repository" shall mean any Nationally Recognized Municipal Securities Info• rmation Repository for purposes of the Rule. The National Repositories currently approved by the Securities and Exchange Commission are set forth in Exhibit B hereto. "Participating Underwriter" shall mean Stephens Inc. "Repository" shall mean each National Repository and the Arkansas State Repository, if any. "Rule" shall mean Rule 15c2 -12(b)(5) adopted by the Securities and Exchange Commission ("SEC") under the Securities Exchange Act of 1934, as the same may be amended from time to time ("1934 Act"). "Sales and Use Tax" shall mean the three-quarters of one percent (0.75%) city-wide sales and use tax authorized under the Act which has been levied within the City pursuant to Ordinance No. 4327 adopted by the City on August 7, 2001, the collection of which tax commenced on April 1, 2002, as approved by the voters of the City. "Specified Events" shall mean any of the events with respect to the Bonds listed in Section 5(a) of this Agreement. Section 3. Provision of Annual Financial Information. • (a) The City shall, not later than August 1 of each year, commencing August 1, 2002, provide to each Repository and to the Trustee its Annual Financial Information which is consistent with the requirements of Section 4 of this Agreement. The City's Annual Financial Information may be submitted as a single document or as separate documents comprising a package, and may cross-reference other information as provided in Section 4(b) hereof; provided that the audited financial statements of the City may be submitted separately from the balance of its Annual Financial Information and later than the date required above for the filing of the Annual Financial Information if they are not available by that date. If the City's fiscal year changes, it shall give notice of such change in the same manner as for a material Specified Event under Section 5 of this Agreement. (b) If, on the date specified in subsection (a) for providing the Annual Financial Information to Repositories, the Trustee has not received a copy of the Annual Financial Information, the Trustee shall contact the Disclosure Representative to determine if the City is in compliance with subsection (a). (c) If the Trustee is unable to verify that the Annual Financial Information has been provided to the Repositories by the date required in subsection (a), the Trustee shall file a notice with the Repositories and the MSRB in substantially the form set forth in Exhibit A and as required by the Rule. • (d) The City shall: 10-35374.03 2 (i) determine each year prior to the date for providing the Annual Financial Information the name and address of each Repository; and (ii) file a report with the Trustee certifying that the Annual Financial Information has been provided pursuant to this Agreement, stating the date it was provided, and listing all of the Repositories to which it was provided. Section 4. Content of Annual Financial Information. (a) The City's Annual Financial Information shall contain or incorporate by reference the following: (i) Receipts of the Sales and Use Tax for the latest Fiscal Year and for the four previous Fiscal Years, if available (ii) The City's audited financial statements for the prior Fiscal Year, prepared in accordance with accounting principles generally accepted in the United States ("GAAP") as such principles are modified by the governmental accounting standards promulgated by the Government Accounting Standards Board ("GASB") and by mandated principles of the State of Arkansas, if any, as in effect from time to time, which financial statements have been audited by such auditor as shall then be required or permitted by the laws of the State of Arkansas. If the City's audited financial statements are not available by the time its Annual Financial Information is required to be filed pursuant to Section 3(a) hereof, the Annual Financial Information shall contain the unaudited financial statements of the City, and the audited financial statements shall be filed in the same manner as the Annual Financial Information when they become available. (b) Any or all of the items listed above may be incorporated by reference from other documents, including official statements of debt issues of the City or related public entities, which have been submitted to each of the Repositories or the Securities and Exchange Commission. If the document has been incorporated by reference in a final official statement, it must be available from the Municipal Securities Rulemaking Board. The City must clearly identify each such other document incorporated by reference. Section 5. Reporting of Specified Events. (a) This Section 5 shall govern the giving of notices of the occurrence of any of the following events with respect to the Bonds, if material: (1) Principal and interest payment delinquencies; (2) Non-payment related defaults; (3) Unscheduled draws on debt service reserves reflecting financial difficulties; 10-35374.03 . (4) Unscheduled draws on credit enhancements reflecting financial difficulties; (5) Substitution of any credit or liquidity providers, or their failure to perform; (6) Adverse tax opinions or events affecting the tax-exempt status of the Bonds; (7) Modifications to rights of Bondowners; (8) Bond calls; (9) Defeasances; (10) Release, substitution, or sale of property securing repayment of the Bonds; and (11) Rating changes. (b) The Trustee, upon obtaining actual knowledge of the occurrence of any of the Specified Events, shall promptly inform the Disclosure Representative of any Specified Event that has occurred, and shall request that the City promptly notify the Trustee in writing whether to report the event pursuant to subsection (e). (c) If the City determines that the occurrence of a Specified Event is material to a Beneficial Owner of the Bonds, the Disclosure Representative shall promptly notify the Trustee in writing. Such notice shall instruct the Trustee to report the occurrence pursuant to subsection (e) below. (d) If the City determines that the occurrence of a Specified Event is not material, the Disclosure Representative shall so notify the Trustee in writing and instruct the Trustee not to report the occurrence pursuant to subsection (e) below. (e) If the Trustee has been instructed by the Disclosure Representative to report the occurrence of a Specified Event, the Trustee shall file a notice of such occurrence with each National Repository, or with the MSRB and the Arkansas State Repository. The Trustee shall not be obligated to report the occurrence of a Specified Event if there is no instruction to do so from the Disclosure Representative. Notwithstanding the foregoing: (i) notice of the occurrence of a Specified Event described in subsections (a)(1), (4) or (5) shall be given by the Trustee unless the Disclosure Representative gives the Trustee affirmative instructions not to disclose such occurrence; and (ii) notice of the Specified Events described in subsections (a)(8) and • (9) need not be given under this subsection any earlier than the notice (if any) of 10-35374.03 4 . the underlying event is given to Beneficial Owners of affected Bonds pursuant to the Indenture. Section 6. Termination of Reporting Obligation. The City's obligations under this Agreement shall terminate if the City is no longer an "obligated person" within the meaning of the Rule. The City's obligations under this Agreement shall terminate upon the maturity, defeasance, prior redemption or payment in full of all of the Bonds. Section 7. Amendment; Waiver. Notwithstanding any other provision of this Agreement, the City and the Trustee may amend this Agreement (and the Trustee shall consent in its discretion, such consent not to be unreasonably withheld, to any amendment so requested by the City), and any provision of this Agreement may be waived, if such amendment or waiver is supported by an opinion of counsel, reasonably acceptable to each of the City and the Trustee, to the effect that such amendment or waiver would not, in and of itself, cause the undertakings herein to violate the Rule taking into account any subsequent change in or official interpretation of the Rule. Section 8. Additional Information. Nothing in this Agreement shall be deemed to prevent the City from disseminating any other information, using the means of dissemination set forth in this Agreement or any other means of communication, or including any other information in any Annual Financial Information or notice of occurrence of a Specified Event, in addition to that which is required by this Agreement. If the City chooses to include any • information in any Annual Financial Information or notice of occurrence of a Specified Event in addition to that which is specifically required by this Agreement, the City shall have no obligation under this Agreement to update such information or include it in any future Annual Financial Information or notice of occurrence of a Specified Event. Section 9. Default. (a) In the event of a failure of the City to provide to the Repositories the Annual Financial Information as undertaken by the City in this Agreement, the Beneficial Owner of any Bonds may take such actions as may be necessary and appropriate, including seeking mandamus or specific performance by court order, to cause the City to comply with its obligations to provide Annual Financial Information or notices under this Agreement. (b) Notwithstanding the foregoing, no Beneficial Owner of the Bonds shall have the right to challenge the content or adequacy of the information provided pursuant to Sections 3, 4 or 5 of this Agreement by mandamus, specific performance or other equitable proceedings unless the City shall have been given ninety (90) days' written notice by a Beneficial Owner of the Bonds to remedy the alleged inadequacy of the information provided and unless Beneficial Owners of Bonds representing at least 25% aggregate principal amount of outstanding Bonds shall join in such proceedings. (c) A default under this Agreement shall not be deemed an Event of Default • under the Trust Indenture, and the sole remedy under this Agreement in the event of any 10-35374.03 5 failure of the City or the Trustee to comply with this Agreement shall be an action to compel performance. Section 10. Duties, Immunities and Liabilities of Trustee. Article IX of the Trust Indenture is hereby made applicable to this Agreement as if this Agreement were (solely for this purpose) contained in the Trust Indenture The Trustee shall have only such duties as are specifically set forth in this Agreement, and the City agrees to indemnify and save the Trustee, its officers, directors, employees and agents, harmless against any liabilities which it may incur arising out of or in the exercise or performance of its powers and duties hereunder, including the costs and expenses (including attorneys' fees and expenses) of defending against any claim of liability, but excluding liabilities due to its own negligence or willful misconduct. Section 11. Beneficiaries. This Agreement shall inure solely to the benefit of the City, the Trustee and the Beneficial Owners from time to time of the Bonds, and shall create no rights in any other person or entity. Section 12. Counterparts. This Agreement 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. CITY OF FAYETTEVILLE, ARKANSAS • Ty: Title: Mayor SIMMONS FIRST TRUST COMPANY, N.A., as Trustee By: Title: CORPORAT TRUST OFFICER 10-35374.03 6 • EXHIBIT A NOTICE TO REPOSITORIES REGARDING FINANCIAL INFORMATION NAME OF ISSUER: City of Fayetteville, Arkansas NAME OF BOND ISSUE: $25,000,000 Sales and Use Tax Capital Improvement Bonds, Series 2002 DATE OF ISSUANCE: June 20, 2002 NOTICE IS HEREBY GIVEN that the City of Fayetteville, Arkansas (the "City") has not yet provided Annual Financial Information with respect to the above -named Bonds as required by Section 3 of the Continuing Disclosure Agreement dated as of June 20, 2002, between the City and Simmons First Trust Company, N.A., as trustee. [The City anticipates that the Annual Financial Information will be filed by .1 Dated: SIMMONS FIRST TRUST COMPANY, N.A., as Trustee C 11 cc: City of Fayetteville Stephens Inc. A-1 10-35374.03 • EXHIBIT B List of Nationally Recognized Municipal Securities Information Repositories at the time of execution and delivery of the Continuing Disclosure Agreement This list may change from time to time. The Agreement requires that information and notices be provided to each Repository. This list should be checked for changes each time information or notice is to be provided. A current list may be obtained from the Securities and Exchange Commission over the Internet at http://www.sec.gov/info/municival/nrmsir.htm. Bloomberg Municipal Repository 100 Business Park Drive Skillman, NJ 08558 Phone: (609) 279-3225 Fax: (609) 279-5962 E-mail: Munis@Bloomberg.com DPC Data Inc. One Executive Drive Fort Lee, NJ 07024 • Phone: (201) 346-0701 Fax: (201) 947-0107 E-mail: nnnsir@dpcdata.com FT Interactive Data Attn: NRMSIR 100 William Street New York, New York 10038 Phone: (212) 771-6999 Fax: (212) 771-7390 (Secondary Market Information) (212) 771-7391 (Primary Market Information) Email: NRMSIR@FTID.com Standard & Poor's J. J. Kenny Repository 55 Water Street 450' Floor New York, NY 10041 Phone: (212) 438-4595 Fax: (212) 438-3975 Email: nrmsir_repository@sandp.com II B -I 10-35374.03 COPY Unless this certificate is presented by an authorized representative of The Depository Trust • Company, a New York corporation ("DTC'), to the City or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by the authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), any transfer, pledge or other use hereof for value or otherwise by or to any person is wrongful inasmuch as the registered owner hereof Cede & Co., has an interest herein. REGISTERED REGISTERED No. R02-1 $6,455,000 UNITED STATES OF AMERICA STATE OF ARKANSAS CITY OF FAYETTEVILLE, ARKANSAS SALES AND USE TAX CAPITAL IMPROVEMENT BOND SERIES 2002 Interest Rate: 2.00% Date of Bond: June 1, 2002 Registered Owner: CEDE & CO. Maturity Date: June 1, 2003 CUSIP: 312673CL8 • Principal Amount: SIX MILLION FOUR HUNDRED FIFTY-FIVE THOUSAND DOLLARS KNOW ALL MEN BY THESE PRESENTS: That the City of Fayetteville, Arkansas, a municipality and political subdivision organized and existing by virtue of the laws of the State of Arkansas (the "City"), for value received, promises to pay to the Registered Owner shown above, or registered assigns, on the Maturity Date shown above, but solely from the source and in the manner hereinafter set forth, the Principal Amount shown above, and in like manner to pay interest on said amount from the date hereof until payment of such Principal Amount has been made or duly provided for, at the Interest Rate per annum shown above, such interest to be payable semiannually on June 1 and December 1 of each year, commencing on the June 1 or December 1 next succeeding the date of this bond shown above, except as the provisions hereinafter set forth with respect to redemption of this bond prior to maturity may become applicable hereto. The principal of and premium, if any, on this bond are payable in lawful money of the United States of America upon the presentation and surrender hereof at the principal corporate trust office of Simmons First Trust Company, N.A., Pine Bluff, Arkansas, or its successor or successors, as trustee (the "Trustee"). So long as Cede & Co. or another nominee of DTC is the registered owner of this bond, payment of interest hereon shall be made by wire transfer of immediately available funds by the Trustee to the Registered Owner as of the fifteenth day of the calendar month preceding the calendar month in which such interest payment date shall fall (the "Record Date"). At any time thereafter, payment of interest hereon shall be made by check or draft -of the Trustee to the Registered Owner as of the applicable Record Date, at the owner's address as it appears on the bond registration books of the City kept by the Trustee. 10-36864.01 COPY Unless this certificate is presented by an authorized representative of The Depository Trust • Company, a New York corporation ("DTC"), to the City or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by the authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), any transfer, pledge or other use hereof for value or otherwise by or to any person is wrongful inasmuch as the registered owner hereof Cede & Co., has an interest herein. REGISTERED No. R02-2 REGISTERED $6,365,000 UNITED STATES OF AMERICA STATE OF ARKANSAS CITY OF FAYETTEVILLE, ARKANSAS SALES AND USE TAX CAPITAL IMPROVEMENT BOND SERIES 2002 Interest Rate: 4.00% Date of Bond: June 1, 2002 Registered Owner: CEDE & CO. Maturity Date: June 1, 2004 CUSIP: 312673CM6 • Principal Amount: SIX MILLION THREE HUNDRED SIXTY-FIVE THOUSAND DOLLARS KNOW ALL MEN BY THESE PRESENTS: That the City of Fayetteville, Arkansas, a municipality and political subdivision organized and existing by virtue of the laws of the State of Arkansas (the "City"), for value received, promises to pay to the Registered Owner shown above, or registered assigns, on the Maturity Date shown above, but solely from the source and in the manner hereinafter set forth, the Principal Amount shown above, and in like manner to pay interest on said amount from the date hereof until payment of such Principal Amount has been made or duly provided for, at the Interest Rate per annum shown above, such interest to be payable semiannually on June 1 and December 1 of each year, commencing on the June 1 or December 1 next succeeding the date of this bond shown above, except as the provisions hereinafter set forth with respect to redemption of this bond prior to maturity may become applicable hereto. The principal of and premium, if any, on this bond are payable in lawful money of the United States of America upon the presentation and surrender hereof at the principal corporate trust office of Simmons First Trust Company, N.A., Pine Bluff, Arkansas, or its successor or successors, as trustee (the "Trustee"). So long as Cede & Co. or another nominee of DTC is the registered owner of this bond, payment of interest hereon shall be made by wire transfer of immediately available funds by the Trustee to the Registered Owner as of the fifteenth day of the calendar month preceding the calendar month in which such interest payment date shall fall (the "Record Date"). At any time thereafter, payment of interest hereon shall be made by check or draft of the Trustee to the Registered Owner as of the applicable Record Date, at the owner's address as it appears on the bond registration books of the City kept by the Trustee. 10-36864.01 COPY Unless this certificate is presented by an authorized representative of The Depository Trust • Company, a New York corporation ("DTC'), to the City or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by the authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), any transfer, pledge or other use hereof for value or otherwise by or to any person is wrongful inasmuch as the registered owner hereof Cede & Co., has an interest herein. REGISTERED REGISTERED No. R02-3 $5,275,000 UNITED STATES OF AMERICA STATE OF ARKANSAS CITY OF FAYETTEVILLE, ARKANSAS SALES AND USE TAX CAPITAL IMPROVEMENT BOND SERIES 2002 Interest Rate: 4.00% Date of Bond: June 1, 2002 Registered Owner: CEDE & CO. Maturity Date: June 1, 2005 CUSIP: 312673CN4 Principal Amount: FIVE MILLION TWO HUNDRED SEVENTY-FIVE THOUSAND • DOLLARS KNOW ALL MEN BY THESE PRESENTS: That the City of Fayetteville, Arkansas, a municipality and political subdivision organized and existing by virtue of the laws of the State of Arkansas (the "City"), for value received, promises to pay to the Registered Owner shown above, or registered assigns, on the Maturity Date shown above, but solely from the source and in the manner hereinafter set forth, the Principal Amount shown above, and in like manner to pay interest on said amount from the date hereof until payment of such Principal Amount has been made or duly provided for, at the Interest Rate per annum shown above, such interest to be payable semiannually on June 1 and December 1 of each year, commencing on the June 1 or December 1 next succeeding the date of this bond shown above, except as the provisions hereinafter set forth with respect to redemption of this bond prior to maturity may become applicable hereto. The principal of and premium, if any, on this bond are payable in lawful money of the United States of America upon the presentation and surrender hereof at the principal corporate trust office of Simmons First Trust Company, N.A., Pine Bluff, Arkansas, or its successor or successors, as trustee (the "Trustee"). So long as Cede & Co. or another nominee of DTC is the registered owner of this bond, payment of interest hereon shall be made by wire transfer of immediately available funds by the Trustee to the Registered Owner as of the fifteenth day of the calendar month preceding the calendar month in which such interest payment date shall fall (the "Record Date"). At any time thereafter, • payment of interest hereon shall be made by check or draft of the Trustee to the Registered Owner as of the applicable Record Date, at the owner's address as it appears on the bond registration books of the City kept by the Trustee. 10-36864.01 • COPY • Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the City or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by the authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), any transfer, pledge or other use hereof for value or otherwise by or to any person is wrongful inasmuch as the registered owner hereof Cede & Co., has an interest herein. REGISTERED No. R02-4 REGISTERED $6,905,000 UNITED STATES OF AMERICA STATE OF ARKANSAS CITY OF FAYETTEVILLE, ARKANSAS SALES AND USE TAX CAPITAL IMPROVEMENT BOND SERIES 2002 Interest Rate: 3.20% Date of Bond: June 1, 2002 Registered Owner: CEDE & CO. Maturity Date: June 1, 2007 CUSIP: 312673CP9 • Principal Amount: SIX MILLION NINE HUNDRED FIVE THOUSAND DOLLARS KNOW ALL MEN BY THESE PRESENTS: That the City of Fayetteville, Arkansas, a municipality and political subdivision organized and existing by virtue of the laws of the State of Arkansas (the "City"), for value received, promises to pay to the Registered Owner shown above, or registered assigns, on the Maturity Date shown above, but solely from the source and in the manner hereinafter set forth, the Principal Amount shown above, and in like manner to pay interest on said amount from the date hereof until payment of such Principal Amount has been made or duly provided for, at the Interest Rate per annum shown above, such interest to be payable semiannually on June 1 and December 1 of each year, commencing on the June 1 or December I next succeeding the date of this bond shown above, except as the provisions hereinafter set forth with respect to redemption of this bond prior to maturity may become applicable hereto. The principal of and premium, if any, on this bond are payable in lawful money of the United States of America upon the presentation and surrender hereof at the principal corporate trust office of Simmons First Trust Company, N.A., Pine Bluff, Arkansas, or its successor or successors, as trustee (the "Trustee"). So long as Cede & Co. or another nominee of DTC is the registered owner of this bond, payment of interest hereon shall be made by wire transfer of immediately available funds by the Trustee to the Registered Owner as of the fifteenth day of the calendar month preceding the calendar month in which such interest payment date shall fall (the "Record Date"). At any time thereafter, payment of interest hereon shall be made by check or draft of the Trustee to the Registered • Owner as of the applicable Record Date, at the owner's address as it appears on the bond registration books of the City kept by the Trustee. 10-36864.01 Copy • This bond, designated "Sales and Use Tax Capital Improvement Bond, Series 2002", is one of a series of bonds aggregating Twenty Five Million Dollars ($25,000,000) (the "Bonds"). The Bonds are being issued for the purpose of financing the costs of acquiring, constructing, reconstructing, extending, improving and equipping wastewater treatment plants, sewerage and related facilities (collectively the "Project"), funding a debt service reserve, and paying the costs of issuance of the Bonds. The Bonds are issued under and are secured by and entitled to the protection of a Trust Indenture dated as of June 1, 2002 (the "Indenture"), by and between the City and the Trustee, which Indenture is available for inspection at the principal corporate trust office of the Trustee. Reference is hereby made to the Indenture and to all indentures supplemental thereto for the provisions, among others, with respect to the nature and extent of the security, the rights, duties and obligations of the City, the Trustee and the owners of the Bonds, and the terms upon which the Bonds are issued and secured. The Bonds are issued pursuant to and in full compliance with the Constitution and laws of the State of Arkansas, including particularly Amendment No. 62 to the Constitution of Arkansas, as implemented by the Local Government Bond Act of 1985, codified as Arkansas Code Annotated (1998 Repl. & Supp. 2001) §§14-164-301 et seq. (as from time to time amended, the "Local Government Bond Act"), Ordinance No. 4389 of the City adopted May 7, 2002, which ordinance authorized the execution and delivery of the Indenture, and a special election duly held on November 6, 2001, at which a majority of the qualified electors of the City voting approved the issuance of the Bonds. In accordance with the Local Government Bond Act, • the City has pledged all receipts from a three-quarters of one percent (0.75%) local sales and use tax (the "Sales and Use Tax") levied by the City pursuant to Ordinance No. 4327, adopted by the City on August 7, 2001, to provide funds for the repayment of the Bonds. The pledge of the receipts of the Sales and Use Tax (collectively, the "Tax Receipts") presently secure payment of the Bonds only, but such Tax Receipts may additionally be pledged to secure the payment of up to $100,000,000 in aggregate principal amount of (i) Additional Bonds issued under the provisions of the Indenture and (ii) loans obtained under the Arkansas Soil and Water Conservation Commission Revolving Loan Program ("RLF Loans"). The Indenture provides that the City may hereafter issue Additional Bonds and incur RLF Loans from time to time under certain terms and conditions contained in the Indenture and, if issued or incurred, such Additional Bonds and RLF Loans will rank on a parity of security with the Bonds and be equally and ratably secured by and entitled to the protection of the Indenture (except that RLF Loans will not be secured by the debt service reserve). The Bonds are not general obligations of the City, but are special obligations secured by an irrevocable pledge of and lien on the Tax Receipts, as more particularly described in the Indenture. In no event shall the Bonds 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 or defend any suit or other proceeding with respect thereto, except as provided in the Indenture. In certain events, on the conditions, in 10-36864.01 2 COPY the manner and with the effect set forth in the Indenture, the principal of all the Bonds and • Additional Bonds, if any, issued under the Indenture and then outstanding may be declared and may become 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 Bonds shall be redeemed prior to maturity, in whole or in part, on any interest payment date, in inverse order of maturity and by lot in such manner as the Trustee shall determine within a maturity, at a redemption price equal to 100% of the principal amount being redeemed, plus accrued interest to the date of redemption, from Project Fund moneys in excess of the amount needed to complete the Project. The Bonds shall be redeemed prior to maturity, in whole or in part, on any interest payment date, in inverse order of maturity and by lot in such manner as the Trustee shall determine within a maturity, at a redemption price equal to 100% of the principal amount being redeemed, plus accrued interest to the date of redemption, from Surplus Tax Receipts. "Surplus Tax Receipts" are Tax Receipts in excess of the amount necessary to (i) insure the prompt payment of scheduled debt service on the Bonds, Additional Bonds and any RLF Loan, (ii) maintain the debt service reserve fund at the required level, (iii) pay any arbitrage rebate due under Section 148(f) of the Internal Revenue Code of 1986, as amended, with respect to the Bond or any Additional Bonds, and (iv) pay the fees and expenses of the Trustee and any paying agent. Surplus Tax Receipts shall be applied to the redemption of the Bonds prior to their application for redemption prior to maturity of any series of Additional Bonds or any RLF Loan. • The Bonds maturing on June 1, 2007, are subject to mandatory redemption, to be selected by lot in such manner as the Trustee shall determine, on June I in the years and the amounts set forth below, at a redemption price equal to 100% of the principal amount being redeemed, plus accrued interest to the date of redemption. Date Principal Amount June 1, 2006 $4,205,000 June 1, 2007 (maturity) 2,700,000 Notwithstanding the foregoing, so long as DTC or its nominee is the sole registered owner of the Bonds, the particular Bonds or portions thereof to be redeemed in part within a maturity shall be selected by lot by DTC in such manner as DTC shall determine. In selecting Bonds for redemption prior to maturity, in the case any outstanding Bond is in a denomination greater than $5,000, each $5,000 of face value of such Bond shall be treated as a separate Bond of the denomination of $5,000. In the event any of the Bonds or portions thereof (which shall be $5,000 or any integral multiple thereof) are called for redemption, notice thereof shall be given by the Trustee by first class mail to the registered owner of each such Bond addressed to such registered owner at his registered address and placed in the mails not less than thirty (30) nor more than sixty (60) days • prior to the date fixed for redemption; provided, however, that failure to give such notice by mailing, or any defect therein, shall not affect the validity of the proceedings for the redemption 10-36864.01 3 COPY of any Bond with respect to which no such failure or defect has occurred. Each notice shall . identify the Bonds or portions thereof being called, and the date on which they shall be presented for payment. After the date specified in such call notice, the Bond or Bonds so called for redemption will cease to bear interest provided funds sufficient for their redemption 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 transferred on the books of registration kept by the Trustee by the registered owner or by his duly authorized attorney upon surrender hereof, together with a written instrument of transfer duly executed by the registered owner or his duly authorized attorney. The Bonds are issuable as registered bonds without coupons in denominations of $5,000 and any integral multiple thereof. Subject to the limitations and upon payment of the charges provided in the Indenture, Bonds may be exchanged for a like aggregate principal amount of Bonds of other authorized denominations. No recourse shall be had for the payment of the principal of or premium, if any, or interest on any of the Bonds or for any claim based thereon or upon any obligation, covenant or agreement contained in the Bonds or the Indenture against any past, present or future alderman, officer or employee of the City, or any successor, as such, either directly or through the City or any successor of the City, under any rule of law or equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise, and all such liability of any such • alderman, officer or employee as such is hereby expressly waived and released as a condition of and consideration for the issuance of any of the Bonds. This Bond is issued with the 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 represented by the Bonds, together with all obligations of the City, does not exceed any constitutional or statutory limitation; and that the revenues pledged to the payment of the principal of and premium, if any, and interest on the Bonds as the same become due and payable 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. CI 10-36864.01 4 • IN WITNESS WHEREOF, the City of Fayetteville, Arkansas has caused this Bond to be executed by its Mayor and City Clerk, thereunto duly authorized (by their manual or facsimile signatures), and its corporate seal to be affixed or imprinted hereon, all as of the date hereof shown above. ATTEST: (SEAL) CITY OF FAYETTEVILLE, ARKANSAS By: i3&i Mayor (Form of Trustee's Certificate) TRUSTEE'S CERTIFICATE OF AUTHENTICATION • This bond is one of the Bonds of the issue described in and issued under the provisions of the within mentioned Indenture. i Attached hereto is the complete text of the opinion of Kutak Rock LLP, a signed original of which is on file with the undersigned, delivered and dated the date of the original delivery of and payment for the Bonds. SIMMONS FIRST TRUST COMPANY, N.A., as Trustee By: Autlf&ized Signa 10-36864.01 • .(Form of Assignment) ASSIGNMENT FOR VALUE RECEIVED, , hereby sells, assigns, and transfers unto the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints as attorney to transfer the within Bond on the books kept for registration thereof with full power of substitution in the premises. DATE: __________,20_ Transferor GUARANTEED BY: • NOTICE: Signature(s) must be guaranteed by an institution satisfactory to the Trustee or other transfer agent. • 10-36864.01 Cl EXECUTION COPY • BOND PURCHASE AGREEMENT June 12, 2002 City of Fayetteville City Administration Building 113 West Mountain Fayetteville, Arkansas 72701 $25,000,000 City of Fayetteville, Arkansas Sales and Use Tax Capital Improvement Bonds, Series 2002 Ladies and Gentlemen: On the basis of the representations, warranties and agreements and upon the terms and conditions contained herein, the undersigned, Stephens Inc. (the "Underwriter"), hereby offers to enter into this Bond Purchase Agreement (this "Bond Purchase Agreement") with the City of Fayetteville, Arkansas (the "City") which, upon your acceptance of this offer, will be binding upon you and upon the Underwriter. Terms not otherwise defined herein shall have the same meanings as set forth in the Indenture defined and described below. • This offer is made subject to your acceptance of this Bond Purchase Agreement on or before midnight on June 12, 2002. 1. General. Upon the terms and conditions and in reliance upon the respective representations, warranties and covenants herein, the Underwriter hereby agrees to purchase from the City, and the City hereby agrees to sell to the Underwriter, all (but not less than all) of $25,000,000 City of Fayetteville, Arkansas Sales and Use Tax Capital Improvement Bonds, Series 2002 (the "Bonds"), at the purchase price (the "Purchase Price") of $25,213,105.70 (equal to the par amount of the Bonds plus an offering premium of $388,105.70 and less underwriter's discount of $175,000.00) plus accrued interest, if any, from June 1, 2002, to the Closing Date (hereinafter defined). The Bonds shall be issued by the City pursuant to the provisions of the Constitution and laws of the State of Arkansas, including, particularly, Amendment 62 to the Constitution and Arkansas Code Annotated (1998 Repl. & Supp. 2001) §§14-164-301 et seq. (the "Act"). The Bonds will constitute special and limited obligations of the City, secured solely by and payable solely from (1) a pledge of and lien on the receipts from a three-quarters of one percent (0.75%) city-wide sales and use tax (the "Sales and Use Tax") authorized under the Act and levied within the City pursuant to Ordinance No. 4327 of the City Council of the City which was adopted on August 7, 2001 (the "Election Ordinance"), which levy was approved by the • voters of the City at a special election held November 6, 2001, and (2) moneys on deposit in the Revenue Fund, Bond Fund and the Debt Service Reserve Fund established by a Trust Indenture 10-35375.04 • to be dated as of June 1, 2002 (the "Indenture"), by and between the City and Simmons First Trust Company, N.A., Pine Bluff, Arkansas, as trustee (the "Trustee"), all as more particularly described in the Indenture: The Bonds shall be issued and secured pursuant to Ordinance No. 4389 of the City Council of the City which was adopted on May 7, 2002 (the "Authorizing Ordinance"), and pursuant to the Indenture. The Bonds shall have the maturities and interest rates as set forth in Exhibit A hereto. The Bonds shall be subject to redemption as set forth in the Indenture and in the Official Statement (hereinafter defined). The proceeds of the Bonds will be utilized (i) to finance a portion of the costs of the Project (as defined in the Indenture), (ii) to fund a debt service reserve, and (iii) to pay the costs of issuance of the Bonds. The City will undertake, pursuant to a Continuing Disclosure Agreement to be dated as of the date of delivery of the Bonds (the "Continuing Disclosure Agreement"), to provide certain annual financial and operating information and notices of the occurrence of certain events, if material, as required by Section (b)(5)(i) of Rule 15c2-12 under the Securities Exchange Act of 1934, as amended (the "Rule"). A description of this undertaking is set forth in the Preliminary Official Statement and will also be set forth in the Official Statement (each hereinafter defined). The City is not in default with respect to any of its obligations under previous undertakings pursuant to the Rule. • In order to ensure compliance with the provisions of the Internal Revenue Code of 1986, as amended (the "Code"), the City will enter into a Tax Regulatory Agreement dated as of the date of delivery of the Bonds (the "Tax Regulatory Agreement"). 2. Bona Fide Public Offering. The Underwriter agrees to make a bona fide public offering of all of the Bonds at the offering prices set forth on the cover of the final Official Statement described below. 3. Delivery of Official Statement. (a) The City has previously provided the Underwriter with copies of its Preliminary Official Statement, including the cover page and the appendices thereto, dated June 5, 2002, relating to the Bonds (the "Preliminary Official Statement"). As of its date, the Preliminary Official Statement is "deemed final" by the City for purposes of SEC Rule 15c2 -12(b)(1). The Preliminary Official Statement, as amended to conform to the terms of this Bond Purchase Agreement, including Exhibit A hereto, and with such other changes and amendments as are mutually agreed to by the City and the Underwriter, is herein referred to as the "Official Statement." (b) The City agrees to deliver to the Underwriter, at such address as the Underwriter shall specify, as many copies of the final Official Statement dated June 12, 2002, relating to the Bonds as the Underwriter shall reasonably request as necessary to comply with paragraph (b)(4) of the Rule (as defined above) and with Rule G-32 and all other applicable rules of the Municipal Securities Rulemaking Board. The City agrees to • deliver such final Official Statement within seven (7) business days after the execution hereof. 2 10-35375.04 • (c) The City hereby authorizes and approves the Preliminary Official Statement and the final Official Statement, consents to their distribution and use by the Underwriter and authorizes the execution of the final Official Statement by a duly authorized officer of the City. (d) The Underwriter shall give notice to the City on the date after which no participating underwriter, as such term is defined in the Rule, remains obligated to deliver final Official Statements pursuant to paragraph (b)(4) of the Rule. 4. City's Representation and Warranties. The City represents and warrants to the Underwriter that: (a) The City is a duly organized and existing political subdivision under the Constitution and laws of the State of Arkansas (the "State"). The City is authorized by the provisions of the Act to issue the Bonds for the purpose of financing a portion of the Project. (b) The City has the full legal right, power and authority (i) to adopt the Election Ordinance levying the Sales and Use Tax, (ii) to adopt the Authorizing Ordinance authorizing the issuance of and sale of the Bonds, (iii) to enter into this Bond Purchase Agreement, the Indenture, the Continuing Disclosure Agreement and the Tax Regulatory Agreement, (iv) to levy the Sales and Use Tax, (v) to issue, sell and deliver the Bonds to the Underwriter as provided herein, (vi) to pledge irrevocably the receipts of • the Sales and Use Tax to the payment of the principal of, premium, if any, and interest on the Bonds, and (vii) to carry out and consummate all other transactions contemplated by each of the aforesaid documents, and the City has complied with all provisions of applicable law, including the Act, in all matters relating to such transactions. (c) The City has duly authorized (i) the execution and delivery of the Bonds and the execution, delivery and due performance of this Bond Purchase Agreement, the Indenture, the Continuing Disclosure Agreement and the Tax Regulatory Agreement, (ii) the distribution and use of the Preliminary Official Statement and the execution, delivery and distribution of the final Official Statement, and (iii) the taking of any and all such actions as may be required on the part of the City to carry out, give effect to and consummate the transactions contemplated by such instruments. All consents or approvals necessary to be obtained by the City in connection with the foregoing have been received, and the consents or approvals so received remain still in full force and effect. (d) The Election Ordinance and the Authorizing Ordinance have been duly adopted by City Council of the City, are each in full force and effect and each constitutes the legal, valid and binding act of the City; and this Bond Purchase Agreement, the Indenture, the Continuing Disclosure Agreement and the Tax Regulatory Agreement, when executed and delivered, will constitute legal, valid and binding obligations of the City, and this Bond Purchase Agreement, the Indenture, the Continuing Disclosure • Agreement and the Tax Regulatory Agreement are enforceable against the City in 3 10-35375.04 • accordance with their respective terms, except as enforceability thereof may be limited by bankruptcy, insolvency or other laws affecting creditors' rights generally. (e) When delivered to or at the direction of the Underwriter, the Bonds will have been duly authorized, executed, authenticated, issued and delivered and will constitute legal, valid and binding obligations of the City in conformity with the laws of the State of Arkansas, including the Act, and will be entitled to the benefit and security of the Authorizing Ordinance and the Indenture. (1) The City has duly approved and authorized the distribution and use of the Preliminary Official Statement and the execution, delivery and distribution of the Official Statement. - (g) The information contained in the Preliminary Official Statement is, and as of the Closing Date such information in the final Official Statement will be, true and correct in all material respects, and the Preliminary Official Statement does not and the final Official Statement will not contain any untrue or misleading statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (h) If, at any time prior to the earlier of (i) receipt of notice from the Underwriter pursuant to Section 3(d) hereof that Official Statements are no longer required to be delivered under the Rule or (ii) 25 days after the Closing Date, any event • occurs as a result of which the Official Statement, as then amended or supplemented, might include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the City shall promptly notify the Underwriter in writing of such event. Any information supplied by the City for inclusion in any amendments or supplements to the Official Statement will not contain any untrue or misleading statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Upon the request of the Underwriter therefor, the City shall prepare and deliver to the Underwriter, at the City's expense, as many copies of an amendment or supplement to the Official Statement which will correct any untrue statement or omission therein as the Underwriter may reasonably request. (i) Neither the adoption of the Authorizing Ordinance or the Election Ordinance, the execution and delivery of this Bond Purchase Agreement, the Bonds, the Indenture, the Continuing Disclosure Agreement or the Tax Regulatory Agreement, nor the consummation of the transactions contemplated herein or therein or the compliance with the provisions hereof or thereof will conflict with, or constitute on the part of the City a violation of, or a breach of or default under, (i) any statute, indenture, mortgage, commitment, note or other agreement or instrument to which the City is a party or by which it is bound, (ii) any provision of the Constitution of the State of Arkansas, or (iii) any existing law, rule, regulation, ordinance, judgment, order or decree to which the City (or the members of its City Council or any of its officers in their respective capacities as such) is • subject. All consents, approvals, authorizations and orders of governmental or 4 10-35375.04 • regulatory authorities, if any, which are required for the City's execution and delivery of, consummation of the transactions contemplated by, and compliance with the provisions of this Bond Purchase Agreement, the Authorizing Ordinance, the Election Ordinance, the Bonds, the Indenture, the Continuing Disclosure Agreement and the Tax Regulatory Agreement have been obtained. (j) The City has never been in default at any time as to the payment of principal of or interest on any obligation which it has issued, including those which it has issued as a conduit for another entity, except as specifically disclosed in the Official Statement. (k) Except as is specifically disclosed in the Official Statement, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, pending or, to the best knowledge of the City, threatened, which in any way questions the powers of the City referred to in subparagraph 4(b) above, or the validity of any proceeding taken by the City in connection with the issuance of the Bonds or the levy of the Sales and Use Tax, or wherein an unfavorable decision, ruling or finding could materially adversely affect the transactions contemplated by this Bond Purchase Agreement, or of any other document or instrument required or contemplated by the Bond financing, or which, in any way, could adversely affect the validity or enforceability of the Authorizing Ordinance, the Election Ordinance, the Bonds, the Indenture, the Continuing Disclosure Agreement, the Tax Regulatory • Agreement or this Bond Purchase Agreement or, to the knowledge of the City, which in any way questions the exclusion from gross income of the recipients thereof of the interest on the Bonds for federal income tax purposes or in any other way questions the status of the Bonds under federal or State of Arkansas tax laws or regulations. (1) Any certificate signed by any official of the City and delivered to the Underwriter shall be deemed a representation and warranty by the City to the Underwriter as to the truth of the statements therein contained. (m) The City has not been notified of any listing or proposed listing by the Internal Revenue Service to the effect that it is a bond issuer whose arbitrage certifications may not be relied upon. (n) The collection history with respect to the City's previously levied sales and use taxes set forth in the Preliminary Official Statement under the caption entitled "HISTORICAL SALES AND USE TAX COLLECTIONS" is fair, accurate and complete. (o) The City will not knowingly take or omit to take any action, which action or omission will in any way cause the proceeds from the sale of the Bonds to be applied in a manner other than as provided in the Indenture, or which would cause the interest on the Bonds to be includable in gross income for federal income tax purposes. • 5 10-35375.04 • 5. City's Covenants. The City covenants with the Underwriter as follows: (a) The City will cooperate with the Underwriter in qualifying the Bonds for offer and sale under the securities or Blue Sky laws of such jurisdictions of the United States as the Underwriter may request; provided, however, that the City shall not be required to consent to suit or to service of process in any jurisdiction. The City consents to the use by the Underwriter in the course of its compliance with the securities or Blue Sky laws of the various jurisdictions of the documents relating to the Bonds, subject to the right of the City to withdraw such consent for cause by written notice to the Underwriter. (b) Prior to the earlier of�i) receipt of notice from the Underwriter pursuant to Section 3(d) hereof that final Official Statements are no longer required under the Rule or (ii) 25 days after the Closing Date, the City shall provide the Underwriter with such information regarding the City, Sales and Use Tax receipts, and the current financial condition and ongoing operations of the City, all as the Underwriter may reasonably request. 6. Closing. At 10:00 a.m. Little Rock time on June 20, 2002, or at such other time and/or date as shall have been mutually agreed upon by the City and the Underwriter (the "Closing Date"), the City will deliver the Bonds, or cause the Bonds to be delivered, to or at the direction of the Underwriter, said Bonds to be in definitive form duly executed by the City and authenticated by Simmons First Trust Company, N.A., Pine Bluff, Arkansas, as trustee (the • "Trustee"), together with the other documents hereinafter mentioned; and the Underwriter will accept such delivery and pay the Purchase Price of the Bonds by making a wire transfer of federal funds payable to the order of the Trustee for the account of the City. The Bonds shall be delivered to The Depository Trust Company in New York, New York, and the activities relating to the final execution and delivery of the Authorizing Ordinance, the Election Ordinance, the Indenture, the Continuing Disclosure Agreement and the Tax Regulatory Agreement and the other documents related to the Bonds and the payment for the Bonds and the delivery of the certificates, opinions and other instruments as described in Section 8 of this Bond Purchase Agreement shall occur in the offices of Kutak Rock LLP, 425 West Capitol Avenue, Suite 1100, Little Rock, Arkansas ("Bond Counsel") or at such other place as shall have been mutually agreed upon between the City and the Underwriter. The payment for the Bonds and simultaneous delivery of the Bonds to or at the direction of the Underwriter is herein referred to as the "Closing." 7. Underwriter's Right to Cancel. The Underwriter shall have the right to cancel its obligation to purchase the Bonds hereunder by notifying the City in writing or by telegram of its election to do so between the date hereof and the Closing, if at any time hereafter and prior to the Closing: (i) the House of Representatives or the Senate of the Congress of the United States, or a committee of either, shall have pending before it, or shall have passed or • recommended favorably, legislation introduced previous to the date hereof, which legislation, if enacted in its form as introduced or as amended, would have the purpose or 6 10-35375.04 • effect of imposing federal income taxation upon revenues or other income of the general character to be derived by the City or by any similar body under the Authorizing Ordinance or the Indenture or similar documents or upon interest received on obligations of the general character of the Bonds or the Bonds, or of causing interest on obligations of the general character of the Bonds, or the Bonds, to be includable in gross income for purposes of federal income taxation, and such legislation, in the Underwriter's opinion, materially adversely affects the market price of the Bonds; or (ii) a tentative decision with respect to legislation shall be reached by a committee of the House of Representatives or the Senate of the Congress of the United States, or legislation shall be favorably reported or rereported by such a committee or be introduced, by amendment or otherwise, in or be passed by the House of Representatives or the Senate, or recommended to the Congress of the United States for passage by the President of the United States, or be enacted or a decision by a federal court of the United States or the United States Tax Court shall have been rendered, or a ruling, release, order, regulation or official statement by or on behalf of the United States Treasury Department, the Internal Revenue Service or other governmental agency shall have been made or proposed to be made having the purpose or effect, or any other action or event shall have occurred which has the purpose or effect, directly or indirectly, of adversely affecting the federal income tax consequences of owning the Bonds or of any of the transactions contemplated in connection herewith, including causing interest on the Bonds to be included in gross income for purposes of federal income taxation, or imposing federal income • taxation upon revenues or other income of the general character to be derived by the City or by any similar body under the Authorizing Ordinance or the Indenture or similar documents or upon interest received on obligations of the general character of the Bonds, or the Bonds which, in the opinion of the Underwriter, materially adversely affects the market price of or market for the Bonds; or (iii) legislation shall have been enacted, or actively considered for enactment with an effective date prior to the Closing, or a decision by a court of the United States shall have been rendered, the effect of which is that the Bonds, including any underlying obligations, or the Indenture, as the case may be, is not exempt from the registration, qualification or other requirements of the Securities Exchange Act of 1933, as amended and as then in effect, the Securities Exchange Act of 1934, as amended and as then in effect, or the Trust Indenture Act of 1939, as amended and as then in effect; or (iv) a stop order, ruling, regulation or official statement by the Securities and Exchange Commission or any other governmental agency having jurisdiction of the subject matter shall have been issued or made or any other event occurs, the effect of which is that the issuance, offering or sale of the Bonds, including any underlying obligations, or the execution and delivery of the Indenture as contemplated hereby or by the Official Statement, is or would be in violation of any provision of the federal securities laws, including the Securities Act of 1933, as amended and as then in effect, the Securities Exchange Act of 1934, as amended and as then in effect, or the Trust Indenture Act of 1939, as amended and as then in effect; or C 7 10-35375.04 • (v) any event shall have occurred or any information shall have become known to the Underwriter which causes the Underwriter to reasonably believe that the Official Statement as then amended or supplemented includes an untrue statement of a material fact, or omits to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; or (vi) there shall have occurred any outbreak of hostilities or any national or international calamity or crisis, including a financial crisis, the effect of which on the financial markets of the United States is such as, in the reasonable judgment of the Underwriter, would materially adversely affect the market for or market price of the Bonds; or (vii) there shall be in force a general suspension of trading on the New York Stock Exchange, the effect of which on the financial markets of the United States is such as, in the reasonable judgment of the Underwriter, would materially adversely affect the market for or market price of the Bonds; or (viii) a general banking moratorium shall have been declared by federal, New York or State authorities; or (ix) any proceeding shall be pending or threatened by the Securities and Exchange Commission against the City; or • (x) additional material restrictions not in force as of the date hereof shall have been imposed upon trading in securities generally by any governmental authority or by any national securities exchange; or (xi) the New York Stock Exchange or other national securities exchange, or any governmental authority, shall impose, as to the Bonds or obligations of the general character of the Bonds, any material restrictions not now in force, or increase materially those now in force, with respect to the extension of credit by, or the charge to the net capital requirements of the Underwriter. 8. Conditions to Underwriter's Obligations. The obligation of the Underwriter to purchase the Bonds shall be subject (a) to the performance by the City of its obligations to be performed hereunder at and prior to the Closing, (b) to the accuracy of the representations and warranties of the City herein as of the date hereof and as of the time of the Closing, and (c) to the following conditions, including the delivery by the City of such documents as are enumerated herein in form and substance satisfactory to the Underwriter: (a) The Bonds shall have been duly authorized, executed and delivered in the forms approved by the City in the Indenture with only such changes therein as the Underwriter and the City shall mutually agree upon, which shall in all instances be as described in the final Official Statement; (b) At the time of Closing, (i) the Official Statement, this Bond Purchase • Agreement, the Indenture, the Authorizing Ordinance, the Election Ordinance, the Continuing Disclosure Agreement and the Tax Regulatory Agreement shall be in full 10-35375.04 • force and effect and shall not have been amended, modified or supplemented from the date hereof, except as may have been agreed to in writing by the Underwriter, (ii) the proceeds of the sale of the Bonds and other funds shall be deposited and applied as described in the Indenture, (iii) no default or event of default under the Indenture shall have occurred and be continuing, and (iv) no material adverse change affecting the City or the Sales and Use Tax shall have occurred, nor shall any development involving a prospective and material adverse change in, or affecting the business, financial condition, results of operations, prospects or properties of the City have occurred; (c) Receipt of fully executed originals of the Indenture, the Continuing Disclosure Agreement and the Tax Regulatory Agreement at or prior to the Closing; (d) At or prior to the Closing, the Underwriter shall receive the following documents in such number of counterparts as shall be mutually agreeable to the Underwriter and Bond Counsel: (1) A final approving opinion of Bond Counsel, dated the Closing Date, in substantially the form set forth in Exhibit B hereto; (2) A supplemental opinion of Bond Counsel, addressed to the City, the Trustee and the Underwriter and dated the Closing Date, in substantially the form set forth in Exhibit C hereto; • (3) The Official Statement executed by a duly authorized officer of the City; (4) Certified copies of the Authorizing Ordinance and the Election Ordinance and all other ordinances and resolutions of the City relating to the Bonds; (5) Certified copies of the Notice of Election and Mayor's Proclamation of Election Results, together with proofs of publication thereof, (6) Photocopies of the Bonds as executed and delivered; (7) A letter from Standard & Poor's Ratings Services, a Division of The McGraw-Hill Companies, Inc., to the effect that the Bonds have been assigned a rating of no less than "AA-", which rating shall be in effect as of the Closing Date; (8) A certificate, in form and substance satisfactory to the Underwriter, of any duly authorized officer or official of the City satisfactory to the Underwriter, dated as of the Closing Date, to the effect that: (i) each of the City's representations, warranties and covenants contained herein are true and correct as of the Closing Date; (ii) the City has duly adopted the Authorizing Ordinance and the Election Ordinance by all action necessary under the Act and • the laws and Constitution of the State of Arkansas, and has duly authorized the execution, delivery and due performance of the Bonds, the Indenture, the 9 10-35375.04 • Continuing Disclosure Agreement, the Tax Regulatory Agreement, the Official Statement and this Bond Purchase Agreement; (iii) no litigation is pending, or to the knowledge of the officer or official of the City signing the certificate after due investigation and inquiry, threatened, to restrain or enjoin the issuance or sale of the Bonds or in any way affecting any authority for or the validity of the Bonds, the Sales and Use Tax, the Official Statement, the Authorizing Ordinance, the Election Ordinance, the Indenture, the Continuing Disclosure Agreement, the Tax Regulatory Agreement, or this Bond Purchase Agreement; (iv) the Bonds, the Indenture, this Bond Purchase Agreement, the Continuing Disclosure Agreement and the Tax Regulatory Agreement, as executed and delivered by the City, are in the form or in substantially the form approved for such execution by appropriate proceedings of the City; (v) since December 31, 2001, there has not been any material adverse change in the financial condition or results of operations of the City whether or not arising in the ordinary course of business, other than as set forth in the Official Statement; (vi) neither the Authorizing Ordinance nor the Election Ordinance have been amended, modified or repealed as of the Closing Date, and the Authorizing Ordinance and the Election Ordinance remain in full force and effect; (vii) none of the proceedings of the City taken preliminary to the issuance of the Bonds, as certified in such certificate, including the levy of the Sales and Use Tax, have been in any manner repealed, amended or changed; (viii) the City has complied in all respects with the provisions of the Act and has full legal right, power and authority to levy the Sales and Use Tax and to issue the • Bonds for the purposes stated in the Act and to enter into this Bond Purchase Agreement, to adopt the Authorizing Ordinance and the Election Ordinance, to issue, sell and deliver the Bonds as provided in this Bond Purchase Agreement, and to carry out and consummate all other transactions contemplated by this Bond Purchase Agreement, the Authorizing Ordinance, the Election Ordinance, the Indenture, the Continuing Disclosure Agreement and the Tax Regulatory Agreement; (ix) neither the Official Statement nor any amendment or supplement thereto contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; and (x) to the best knowledge of the officer or official of the City signing the certificate, no event affecting the City or the Sales and Use Tax has occurred since the date of the Official Statement which should be disclosed in the Official Statement for the purposes for which it is used that is necessary to disclose therein in order to make the statements and information therein not misleading in any respect; (9) An opinion of Kit Williams, Esq., City Attorney, dated the Closing Date and addressed to the Underwriter, Bond Counsel and the Trustee, to the effect that (i) the City is a duly organized and validly existing political subdivision and city of the first class, organized under the laws of the State of Arkansas, with full power and authority to adopt the Authorizing Ordinance and Election Ordinance, to levy the Sales and Use Tax, and to execute and deliver the • Bonds, the Indenture, the Continuing Disclosure Agreement, the Tax Regulatory Agreement and this Bond Purchase Agreement; (ii) the City has duly approved the Preliminary Official Statement and the Official Statement; (iii) the 10 10-35375.04 • Authorizing Ordinance and the Election Ordinance have been duly adopted by the City by all action necessary under the Act and the laws and Constitution of the State of Arkansas, and remains in full force and effect; (iv) the Indenture, the Continuing Disclosure Agreement, the Tax Regulatory Agreement and this Bond Purchase Agreement have been duly authorized, approved, executed and delivered by the City and, subject to the extent that the enforceability of the rights and remedies set forth therein may be limited by bankruptcy, insolvency or other laws affecting creditors' rights generally, constitute valid and binding agreements of the City enforceable in accordance with their terms; (v) the information in the Official Statement under the captions "THE PROJECT," "THE CITY" and "LEGAL MATTERS" (apart from financial or statistical data contained or incorporated therein, as to which no view need be expressed) is fair, accurate and complete and does not omit any matter which, in such counsel's opinion, for the purposes for which the Official Statement is to be used, should be included or referred to therein; (vi) excepting those matters discussed in the Official Statement, there is no action, suit or proceeding at law or in equity before or by any court, public board or body, pending or threatened, against or affecting the City, challenging the validity of the transactions contemplated by the Official Statement or the validity of the Bonds, the Sales and Use Tax, the Authorizing Ordinance, the Election Ordinance, the Indenture, the Continuing Disclosure Agreement, the Tax Regulatory Agreement or this Bond Purchase Agreement and, to the best of such counsel's knowledge, there is no investigation, pending or • threatened, and no threatened action, suit or proceeding involving any of the matters hereinabove mentioned in this clause (vi); (vii) the execution and delivery of the Authorizing Ordinance, the Election Ordinance, the Indenture, the Continuing Disclosure Agreement, the Tax Regulatory Agreement and this Bond Purchase Agreement, and compliance with the provisions hereof and thereof, under the circumstances contemplated hereby and thereby, do not and will not in any material respect conflict with or constitute on the part of the City a breach of or default under any agreement or other instrument to which the City is a party or any existing law, regulation, court order or consent decree to which the City is subject; and (viii) based upon the examinations which such counsel has made as counsel to the City, which shall be specified, nothing has come to such counsel's attention which would lead such counsel to believe that the Official Statement (except for the financial statements and other financial data included in the Official Statement, as to which no view need be expressed) contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (10) Evidence that Federal Form 8038-G has been executed by the City and is ready for filing with the Internal Revenue Service. (11) Evidence that, except as disclosed in the Official Statement, all necessary approvals, whether legal or administrative, have been obtained from • applicable federal, state and local entities and agencies; and 10-35375.04 • (12) Such additional legal opinions, certificates, proceedings, instruments and other documents as the Underwriter and Bond Counsel may reasonably request to evidence compliance by the City with legal requirements, the truth and accuracy, as of the time of Closing, of the representations of the City herein contained and the due performance or satisfaction by the City at or prior to such time of all agreements then to be performed and all conditions then to be satisfied. If the City shall be unable to satisfy the conditions to the obligations of the Underwriter contained in this Bond Purchase Agreement, or if the obligation of the Underwriter to purchase and accept delivery of the Bonds shall be terminated for any reason permitted by this Bond Purchase Agreement, this Bond Purchase Agreement shall terminate and neither the Underwriter nor the City shall be under further obligation hereunder; except that the respective obligations to pay expenses, as provided in Section 12 hereof, shall continue in full force and effect. 9. Conditions to Obligations of the City. The obligations of the City hereunder are subject to the performance by the Underwriter of its obligations hereunder. 10. Survival. All representations, warranties and agreements of the City shall remain operative and in full force and effect, regardless of any investigations made by or on behalf of the Underwriter, and shall survive the Closing. The obligations of the City under Sections 11 or 12 hereof shall survive any termination of this Bond Purchase Agreement by the Underwriter pursuant to the terms hereof. • 11. Indemnification. The City, to the extent permitted by law, agrees to indemnify and hold harmless the Underwriter, each member, officer, director, partner or employee of the Underwriter and each person who controls the Underwriter within the meaning of Section 15 of the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as amended (collectively called the "Indemnified Parties"), against any and all losses, claims, damages, liabilities or expenses (including any legal or other expenses incurred by an Indemnified Party in connection with investigating any claims against an Indemnified Party and defending any actions) whatsoever caused by any untrue statement or misleading statement or alleged untrue statement or alleged misleading statement of a material fact contained in the Official Statement or caused by any omission or alleged omission from the Official Statement of any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading insofar as such losses, claims, damages, liabilities or expenses are caused by any such untrue or misleading statement or omission or alleged untrue or misleading statement or omission in the information contained in the Official Statement; provided, however, that the City shall not be liable to an Indemnified Party in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in any of such documents in reliance upon and in conformity with written information furnished to the City by the Underwriter specifically for use therein. No Indemnified Parties shall be indemnified hereunder for any losses, claims, damages or liabilities resulting from the negligence of such Indemnified Parties. • 12 10-35375.04 • 12. Payment of Expenses. The City will pay or cause to be paid all reasonable expenses incident to the performance of its obligations under this Bond Purchase Agreement, including, but not limited to, expenses of mailing or delivery of the Bonds, costs of printing the Bonds, the Preliminary and final Official Statements, any amendment or supplement to the Preliminary or final Official Statement and this Bond Purchase Agreement, fees and disbursements of Bond Counsel, any fees charged by investment rating agencies for the rating of the Bonds, bond insurance premiums, if any, fees of the Trustee and any paying agent fees, and any fees and disbursements in connection with the qualification of the Bonds for sale under the securities or "Blue Sky" laws of the various jurisdictions and the preparation of "Blue Sky" memoranda. In the event this Bond Purchase Agreement shall terminate because of the default of the Underwriter, the City will, nevertheless, pay, or cause to be paid, all of the expenses specified above. The Underwriter shall pay all advertising expenses in connection with the public offering of the Bonds, and all other expenses incurred by it in connection with the public offering and distribution of the Bonds, including the fees and expenses of any counsel retained by the Underwriter. If the City defaults under this Bond Purchase Agreement, the Underwriter may bring whatever legal action it may have against the City to recover damages, if any, incurred by the Underwriter. 13. Notices. Any notice or other communication to be given to the City under this Bond Purchase Agreement may be given by delivering the same in writing to the Mayor at the address set forth above, and any notice or other communication to be given to the Underwriter under this Bond Purchase Agreement may be given by delivering the same in writing to Stephens • Inc., 3425 North Futrall, Suite 201, Fayetteville, AR 72703, Attention: Mr. Dennis Hunt. 14. Nonassignability. This Bond Purchase Agreement is made solely for the benefit of the City and the Underwriter (including any successor or assign of the Underwriter), and no other person, including any purchaser of the Bonds, shall acquire or have any right hereunder or by virtue hereof. 15. Applicable Law. This Bond Purchase Agreement shall be governed by and construed in accordance with the laws of the State of Arkansas. • 13 10-35375.04 . 16. Counterparts. This Bond Purchase Agreement shall become effective upon your acceptance hereof and may be executed in counterparts, each of which shall be regarded as an original and all of which shall constitute one and the same document. Very truly yours, STEPHENS INC. By: Authc rized Representative Accepted and agreed to as of the date first above written: CITY OF FAYETTEVILLE, ARKANSAS • Ty: Title: yor 14 10-35375.04 • EXHIBIT A MATURITY SCHEDULE (June 1) Principal Interest Maturity Amount Rate Price 2003 $6,455,000 2.00% 100.280% 2004 6,365,000 4.00% 103.198% 2005 5,275,000 4.00% 103.156% 2006* 4,205,000 3.20% 100.000% 2007 2,700,000 3.20% 100.000% (with accrued interest on all Bonds from June 1, 2002) * Mandatory sinking fund redemption. E 10-35375.04 A-1 • EXHIBIT B PROPOSED FORM OF BOND COUNSEL APPROVING OPINION Upon delivery of the Bonds in definitive form, Kutak Rock LLP, Little Rock, Arkansas, proposes to deliver its approving opinion in substantially the following form: June 20, 2002 City of Fayetteville, Arkansas Fayetteville, Arkansas Simmons First Trust Company, N.A., as Trustee Little Rock, Arkansas Stephens Inc. Little Rock, Arkansas $25,000,000 City of Fayetteville, Arkansas Sales and Use Tax Capital Improvement Bonds • Series 2002 Ladies and Gentlemen: We have acted as bond counsel in connection with the issuance and sale by the City of Fayetteville, Arkansas (the "City"), a political subdivision of the State of Arkansas, of its $25,000,000* Sales and Use Tax Capital Improvement Bonds, Series 2002 (the "Bonds"). The Bonds are being issued pursuant to the provisions of the Constitution and laws of the State of Arkansas, including, particularly, Amendment 62 and Arkansas Code Annotated (1998 Repl. & Supp. 2001) §§14-164-301 et seq. (as from time to time amended, the "Act"), pursuant to Ordinance No. 4389 of the City, duly adopted and approved on May 7, 2002 (the "Authorizing Ordinance"), and pursuant to a Trust Indenture dated as of June 1, 2002 (the "Indenture"), by and between the City and Simmons First Trust Company, N.A., as trustee (the "Trustee"). Reference is hereby made to the Indenture and to all indentures supplemental thereto for the provisions, among others, with respect to the conditions for the issuance of parity debt by the City, the nature and extent of the security for the Bonds, the rights, duties and obligations of the City, the Trustee and the Holders of the Bonds, and the terms upon which the Bonds are issued and secured. Reference is made to an opinion of even date herewith of Kit Williams, Esq., City Attorney, a copy of which is on file with the Trustee, with respect, among other matters, to the status and valid existence of the City, the power of the City to adopt the Election Ordinance and • the Authorizing Ordinance and to enter into and perform its obligations under the Indenture, the valid adoption of the Election Ordinance and the Authorizing Ordinance, and the due 10-35375.04 B -I • authorization, execution and delivery of the Indenture by the City, and with respect to the Indenture being enforceable upon the City. We have examined the law and such certified proceedings and other papers as we have deemed necessary to render this opinion. As to questions of fact material to our opinion, we have relied upon the representations of the City contained in the Election Ordinance, the Authorizing Ordinance and the Indenture and in the certified proceedings and other certifications of public officials furnished to us, without undertaking to verify the same by independent investigation. Based upon the foregoing, we are of the opinion, under existing law, as follows: 1. The City is duly created and validly existing as a municipal corporation of the State of Arkansas. Pursuant to the Constitution and laws of the State of Arkansas, including, particularly, Amendment 62 and the Act, the City is empowered to adopt the Election Ordinance and the Authorizing Ordinance, to execute and deliver the Indenture, to perform the agreements on its part contained therein, and to issue the Bonds. 2. The Authorizing Ordinance has been duly adopted by the City and constitutes a valid and binding obligation of the City enforceable upon the City in accordance with its terms. 3. The Indenture has been duly authorized, executed and delivered by the City and is a valid and binding obligation of the City enforceable upon the City in accordance with its terms. • 4. The Bonds have been validly authorized, executed, issued and delivered by the City and represent valid and binding special obligations of the City. The principal, premium, if any, and interest on the Bonds shall be payable from, and shall be secured by an assignment and pledge by the City to the Trustee of, the receipts of the Sales and Use Tax (as defined in the Indenture). 5. The Sales and Use Tax receipts have been duly and validly assigned and pledged to the Trustee under the Indenture, and the Indenture creates, as security for the Bonds, a valid security interest in the Sales and Use Tax receipts. Under the laws of the State of Arkansas, including, particularly, Arkansas Code Annotated (2001 Repl.) Section 4-9-109(d)(14), the pledge, assignment and security interest in the Sales and Use Tax receipts securing the Bonds is and shall be prior to any judicial lien hereafter imposed on the Sales and Use Tax receipts to enforce a judgment against the City on a simple contract, and it is not necessary to file a Uniform Commercial Code financing statement in order to perfect a security interest in the Sales and Use Tax receipts. 6. The interest on the Bonds is excluded from gross income for federal income tax purposes and is not an item of tax preference for purposes of the federal alternative minimum tax imposed on individuals and corporations; it should be noted, however, that, for the purpose of computing the alternative minimum tax imposed on corporations (as defined for federal income tax purposes), such interest is taken into account in determining adjusted current earnings for • purposes of such alternative minimum tax. The opinions set forth in the preceding sentence are subject to the condition that the City comply with all requirements of the Internal Revenue Code of 1986, as amended, that must be satisfied prior to or subsequent to the issuance of the Bonds in 10-35375.04 B-2 • order that the interest thereon be, or continue to be, excluded from gross income for federal income tax purposes. The City has covenanted to comply with each such requirement. Failure to comply with certain of such requirements may cause the inclusion of interest on the Bonds in gross income for federal income tax purposes to be retroactive to the date of issuance of the Bonds. We express no opinion regarding other federal tax consequences arising with respect to the Bonds. 7. The interest on the Bonds is exempt from all state, county and municipal taxes in the State of Arkansas. 8. The Bonds are exempt from registration pursuant to the Securities Act of 1933, as amended, and the Indenture is not required to be qualified under the Trust Indenture Act of 1939, as amended, in connection with the offer and sale of the Bonds. It is to be understood that the rights of the registered owners of the Bonds and the enforceability of the Bonds, the Authorizing Ordinance and the Indenture may be subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights heretofore or hereafter enacted to the extent constitutionally applicable and that their enforcement may also be subject to the exercise of judicial discretion in appropriate cases. Very truly yours, • 10-35375.04 B-3 • EXHIBIT C PROPOSED FORM OF BOND COUNSEL SUPPLEMENTAL OPINION June 20, 2002 City of Fayetteville, Arkansas Fayetteville, Arkansas Simmons First Trust Company, N.A., as Trustee Pine Bluff, Arkansas - Stephens Inc. Little Rock, Arkansas $25,000,000 City of Fayetteville, Arkansas Sales and Use Tax Capital Improvement Bonds Series 2002 Ladies and Gentlemen: • This opinion supplements our bond approving opinion, dated the date hereof, relating to the above -captioned bonds (the "Bonds"). Except as otherwise defined herein, the terms used herein shall have the meanings prescribed for them in said opinion. We have examined the law and such certified proceedings and other papers as we have deemed necessary to render this opinion.. As to questions of fact material to our opinion, we have relied upon the representations of the City contained in the Indenture and in the certified proceedings and other certifications of public officials furnished to us, without undertaking to verify the same by independent investigation. In addition to the documents specifically mentioned in the approving opinion, in connection with this opinion we have also examined: (a) An executed counterpart of the Bond Purchase Agreement dated June 12, 2002 (the "Bond Purchase Agreement"), by and between the City and Stephens Inc., as underwriter (the "Underwriter"); (b) An executed counterpart of the Continuing Disclosure Agreement dated June 20, 2002 (the "Disclosure Agreement"), by and between the City and Simmons First Trust Company, N.A., as trustee (the "Trustee"); . (c) An executed counterpart of the Tax Regulatory Agreement dated June 20, • 2002 (the "Tax Regulatory Agreement"), by and between the City and the Trustee; and 10-35375.04 C-1 • (d) Portions of the Official Statement dated June 12, 2002, with respect to the Bonds (the "Official Statement"), captioned "INTRODUCTORY STATEMENT," "THE SERIES 2002 BONDS," "SECURITY FOR THE BONDS," "ESTIMATED SOURCES AND USES OF FUNDS," "THE SALES AND USE TAX," "DEFINITIONS OF CERTAIN TERMS," "SUMMARY OF THE INDENTURE," "SUMMARY OF THE CONTINUING DISCLOSURE AGREEMENT," "TAX EXEMPTION," and "APPENDIX A — Form of Opinion of Bond Counsel" (the "Relevant Captions") insofar as they relate to this opinion. Based on our examination, we are of the opinion, as of the date hereof and under existing law, as follows: 1. The Bond Purchase Agreement has been duly authorized, executed and delivered by the City and, assuming due authorization, execution and delivery by the Underwriter, the Bond Purchase Agreement constitutes the valid and binding agreement of the City enforceable in accordance with its terms. 2. The Disclosure Agreement has been duly authorized, executed and delivered by the City and, assuming due authorization, execution and delivery by the Trustee, the Disclosure Agreement constitutes the valid and binding agreement of the City enforceable in accordance with its terms. 3. The Tax Regulatory Agreement has been duly authorized, executed and • delivered by the City and, assuming due authorization, execution and delivery by the Trustee, the Tax Regulatory Agreement constitutes the valid and binding agreement of the City enforceable in accordance with its terms. 4. The statements contained in the Official Statement under the Relevant Captions, insofar as such statements purport to summarize certain provisions of the Bonds, the Indenture and the Continuing Disclosure Agreement, or conclusions of law and legal opinions, are true, accurate and correct summaries thereof in all material respects and do not omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The enforceability of the respective obligations of the parties to the documents and other items described above, and the availability of certain rights and remedies provided for therein, may be limited by bankruptcy, receivership, insolvency, reorganization, moratorium, marshalling or other similar statutes or rules of law affecting creditors' rights and remedies, to general principles of equity and to the discretion of any court in granting any relief or issuing any order, whether the proceeding is considered a proceeding at law or equity. In particular, the right to indemnification under any of the documents or other items described above may be limited by federal of state securities laws or by the public policy underlying such laws. • 10-35375.04 C-2 This opinion is being rendered to you solely for your use and benefit and may not be relied upon • in any manner, nor used, by any other person. Very truly yours, 10-35375.04 C-3 V c -5 W V E � u It. -...- a u a $ '0 8 y N O y v N 6$ ti c.. 0 00 V W N _c L a 0 o 0 u 0 O N '-'I- c. y T cc 0g o — e ic o o'o n.-. U .a. -..C o u $t N A ; r N 00 O o m a N • Y V 3 �• E � c E E i `oh a O. V O Q C E O o• n c g5 0 0 E � N N - c 'm o Ota— h 6 s u 0 W C C O 0 0 .nco 3 A „ o , 7 In Hi cE c N S a u (dOO 0 A y 0 V 9 N N U a �ut q C V E 9 2 a A N U O -OA PRELIMINARY OFFICIAL STATEMENT DATED JUNE 5, 2002 NEW ISSUE BOOK -ENTRY ONLY *RATING: S&P:"AA" In the opinion of Bond Counsel, under existing law and assuming compliance with certain covenants described herein, interest on the Series 2002 Bonds is excluded from gross income of the owners thereoffor federal income tax purposes and is not an item of tax preference for purposes of the federal alternative minimum tax imposed on individuals and corporations; however, with respect to corporations, interest on the Series 2002 Bonds will be taken into account in determining adjusted current earnings and profits for purposes of computing the federal alternative minimum tax. Under existing law, Bond Counsel is of the opinion that the Series 2002 Bonds and the interest thereon are exempt from all state, county and municipal taxes in the State of Arkansas. See the caption "TAX EXEMPTION" herein. $25,000,000** CITY OF FAYETTEVILLE, ARKANSAS SALES AND USE TAX CAPITAL IMPROVEMENT BONDS SERIES 2002 Dated: June 1,2002 Due: June 1, as shown below The Sales and Use Tax Capital Improvement Bonds, Series 2002 (the "Series 2002 Bonds"), are being issued by the City of Fayetteville, Arkansas (the "City") for the purpose of financing a portion of the costs of certain improvements to the City's wastewater treatment plants, sewerage and related facilities, funding a debt service reserve, and paying certain expenses in connection with the issuance of the Series 2002 Bonds. See the captions "ESTIMATED SOURCES AND USES OF FUNDS" and "THE PROJECT' herein. The Series 2002 Bonds are issuable only as fully registered bonds and, when issued, will be registered in the name of Cede & Co., as nominee of The Depository Trust Company ("DTC"), New York, New York, to which principal, premium, if any, and interest payments on the Series 2002 Bonds will be made so long as Cede & Co. is the registered owner of the Series 2002 Bonds. Individual purchases of the Series 2002 Bonds will be made only in book -entry form, in denominations of $5,000 or integral multiples thereof. Individual purchasers ("Beneficial Owners") of Series 2002 Bonds will not receive physical delivery of bond certificates. See the caption "BOOK -ENTRY ONLY SYSTEM" herein. The Series 2002 Bonds shall bear interest from their dated date, payable on June I and December I of each year, commencing December 1, 2002. All such interest payments shall be payable to the persons in whose name such Series 2002 Bonds are registered on the bond registration books maintained by Simmons First Trust Company, N.A., Pine Bluff, Arkansas as trustee (the "Trustee"), as of the fifteenth day of the calendar month preceding the calendar month in which the applicable interest payment date falls. Principal of and premium, if any, on the Series 2002 Bonds shall be payable at the principal corporate trust office of the Trustee. So long as DTC or its nominee is the registered owner of the Series 2002 Bonds, disbursement of such payments to DTC Participants is the responsibility of DTC, and the disbursement of such payments to Beneficial Owners is the responsibility of DTC Participants or Indirect Participants, as more fully described herein. Pursuant to a Trust Indenture dated as of June 1, 2002 (the "Indenture"), between the City and the Trustee, the payment of the principal of, premium, if any, and interest on the Series 2002 Bonds is secured by a pledge of the receipts from a three-quarters of one percent (0.75%) city-wide sales and use tax (the "Sales and Use Tax"). See the caption "SECURITY FOR THE BONDS" herein. Assuming the satisfaction of certain coverage tests, the City has reserved the right to incur up to $100,000,000 of additional indebtedness to be secured on a parity basis with the Series 2002 Bonds. See the caption "THE SERIES 2002 BONDS — Additional Bonds and RLF Loans" herein. The Series 2002 Bonds are subject to mandatory redemption prior to maturity as more fully described herein under the caption "THE SERIES 2002 BONDS - Redemption." The Series 2002 Bonds are special obligations of the City secured by and payable solely from receipts of the Sales and Use Tax. The Series 2002 Bonds do not constitute an indebtedness of the City within the meaning of any constitutional or statutory debt limitation or restriction. The issuance of the Series 2002 Bonds shall not directly, indirectly or contingently obligate the City to levy or pledge any taxes whatsoever or to make any appropriation for the payment of the Series 2002 Bonds, except as described herein with respect to the Sales and Use Tax. MATURITY SCHEDULE** Maturity Principal Interest June I Amount Rate 2003 $6,590,000 2004 6,505,000 2005 5,320,000 Maturity Principal Interest June 1 Amount Rate 2006 $4,200,000 2007 2,385,000 (All Series 2002 Bonds are offered at par plus accrued interest) The Series 2002 Bonds arc offered when, as and if issued by the City and are subject to the final approving opinion of Kutak Rock LLP, Little Rock, Arkansas, Bond Counsel. Certain matters will be passed upon for the City by its counsel, Kit Williams, Esq., City Attorney. It is expected that the Series 2002 Bonds will be available for delivery in New York, New York, on or about June 20, 2002. See the caption "RATING" herein. •' Preliminary; subject to change. Stephens Inc. The date of this Official Statement is Jute _, 2002. CITY OF FAYETTEVILLE, ARKANSAS Issuer City Council Dan Coody, Mayor Bob Davis Lioneld Jordan Don Marr Robert Reynolds Kevin Santos Brenda Thiel Cyrus Young Ted Webber, Administrative Services Director Greg Boettcher, Public Works Director Stephen Davis, Budget Manager Heather Woodruff, City Clerk Kit Williams, City Attorney SIMMONS FIRST TRUST COMPANY, N.A. Pine Bluff, Arkansas Trustee and Paying Agent KUTAK ROCK LLP Little Rock, Arkansas Bond Counsel STEPHENS INC. Little Rock, Arkansas Underwriter No dealer, broker, salesman or other person has been authorized by the City or by Stephens Inc. (the "Underwriter") to give any information or to make any representations, other than those contained herein; and, if given or made, such other information or representations must not be relied upon as having been authorized by either of the foregoing. This Official Statement does not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of any Series 2002 Bonds in any jurisdiction in which such offer is not authorized, or in which the person making such offer, solicitation or sale is not qualified to do so, or to any person to whom it is unlawful to make such offer, solicitation or sale. The information and expressions of opinion contained herein are subject to change without notice, and neither the delivery of this Official Statement nor any sale made hereunder shall, under any circumstances, create any implication that there has been no change in the affairs of the City since the date hereof. THE SERIES 2002 BONDS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR HAS THE TRUST INDENTURE BEEN QUALIFIED UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, IN RELIANCE UPON CERTAIN EXEMPTIONS FROM SUCH REGISTRATION AND QUALIFICATION CONTAINED IN SUCH LAWS. CERTAIN INFORMATION CONTAINED HEREIN HAS BEEN OBTAINED FROM THE CITY, THE DEPOSITORY TRUST COMPANY AND OTHER SOURCES WHICH ARE BELIEVED TO BE RELIABLE. THE UNDERWRITER HAS REVIEWED THE INFORMATION IN THIS OFFICIAL STATEMENT IN ACCORDANCE WITH, AND AS PART OF, ITS RESPONSIBILITIES TO INVESTORS UNDER THE FEDERAL SECURITIES LAWS AS APPLIED TO THE FACTS AND CIRCUMSTANCES OF THIS TRANSACTION, BUT THE UNDERWRITER DOES NOT GUARANTY THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. IN CONNECTION WITH THIS OFFERING, THE UNDERWRITER MAY OVERALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SERIES 2002 BONDS AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME. TABLE OF CONTENTS • TaxExemption............................................................................................................ Rating............................................................................................................. LegalMatters................................................................................................ Miscellaneous............................................................................................... Accuracy and Completeness of Official Statement ....................................... APPENDIX A - Form of Bond Counsel Opinion ............... Pape 2 4 4 6 7 7 8 8 9 9 12 18 22 26 28 29 ............................... A- I PRELIMINARY OFFICIAL STATEMENT 525,000,000* CITY OF FAYETTEVILLE, ARKANSAS SALES AND USE TAX CAPITAL IMPROVEMENT BONDS SERIES 2002 INTRODUCTORY STATEMENT The following introductory statement is subject in all respects to the more complete information set forth in this Official Statement. All descriptions and summaries of documents hereinafter set forth are qualified in their entirety by reference to each such document. Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms under the caption "DEFINITIONS OF CERTAIN TERMS" herein. This Official Statement, including the cover page and the Appendices hereto, is furnished in connection with the offering of Sales and Use Tax Capital Improvement Bonds, Series 2002, in the principal amount of $25,000,000(the "Series 2002 Bonds"), by the City of Fayetteville, Arkansas (the "City"). The City is a city of the first class organized and existing under the laws of the State of Arkansas (the "State"). The City is authorized under Amendment 62 to the Constitution of the State ("Amendment 62") and Arkansas Code Annotated (1998 Repl. & 2001 Supp.) §§14-164-301 et seq. (as from time to time amended, the "Act"), to issue and sell bonds for the purpose of financing and refinancing the cost of capital improvements of a public nature. The Series 2002 Bonds are to be issued by the City pursuant to Amendment 62, the Act and Ordinance No. 4389, adopted and approved on May 7, 2002 (the "Authorizing Ordinance"), for the purpose of (i) financing a portion of the costs of acquiring, constructing, reconstructing, extending, improving and equipping the City's • wastewater treatment plants, sewerage and related facilities (the "Project"), (ii) establishing a debt service reserve for the Series 2002 Bonds, and (iii) paying the costs of issuing the Series 2002 Bonds. See the captions "ESTIMATED SOURCES AND USES OF FUNDS" and THE PROJECT" herein. The Series 2002 Bonds are not general obligations of the City, but are special obligations payable solely from and secured by a pledge of the receipts of a special city-wide sales and use tax levied pursuant to the Act at the rate of three-quarters of one percent (0.75%) (the "Sales and Use Tax"). See the captions "SECURITY FOR THE BONDS," "HISTORICAL SALES AND USE TAX COLLECTIONS" and "SUMMARY OF THE INDENTURE" herein. The faith and credit of the City are not pledged to the payment of the Series 2002 Bonds, and the Series 2002 Bonds do not constitute an indebtedness of the City within the meaning of any constitutional or statutory debt limitation or restriction. The issuance of the Series 2002 Bonds shall not directly, indirectly or contingently obligate the City to levy or pledge any taxes whatsoever or to make any appropriation for the payment of the Series 2002 Bonds, except as described herein with respect to the Sales and Use Tax. Additional Bonds may be issued on a parity of security with the Series 2002 Bonds under certain circumstances set forth in the Indenture (hereinafter defined). The Series 2002 Bonds and any Additional Bonds are herein collectively referred to as the "Bonds." In addition, the City may incur loans under the Arkansas Soil and Water Conservation Commission Revolving Loan Fund Program ("RLF Loans"), which RLF Loans will be secured on a parity basis with the Bonds, except that RLF Loans will not be secured by the Debt Service Reserve Fund. Pursuant to the Indenture, the maximum principal amount of Bonds and RLF Loans that may be issued or incurred is limited to $125,000,000. See the caption "THE SERIES 2002 BONDS - Additional Bonds and RLF Loans" herein. The Series 2002 Bonds are subject to redemption from excess moneys in the Project Fund following completion of the Project and from Surplus Tax Receipts. See the captions "THE SERIES 2002 BONDS — Redemption" and "PROJECTED MANDATORY REDEMPTIONS." • Preliminary; subject to change. Pursuant to the provisions of a Continuing Disclosure Agreement dated as of the date of delivery of the Series 2002 Bonds, by and between the City and the Trustee (the "Continuing Disclosure Agreement"), the City has undertaken certain obligations with respect to providing ongoing disclosure of certain financial and operating data concerning the City and the Sales and Use Tax and of the occurrence of certain material events. See the caption "SUMMARY OF THE CONTINUING DISCLOSURE AGREEMENT" herein. This Official Statement contains brief descriptions or summaries of, among other matters, the City, the Series 2002 Bonds, the Sales and Use Tax, the Continuing Disclosure Agreement, and the Trust Indenture dated as of June 1, 2002, (the "Indenture"), by and between the City and Simmons First Trust Company, N.A., Pine Bluff, Arkansas, as trustee (the "Trustee"), pursuant to which the Series 2002 Bonds are issued and secured. Such descriptions and information do not purport to be comprehensive or definitive. All references herein to the Indenture and the Continuing Disclosure Agreement are qualified in their entirety by reference to each such documents, and all references to the Series 2002 Bonds are qualified in their entirety by reference to the definitive form thereof and the information with respect thereto included in the Indenture. Copies of the Continuing Disclosure Agreement, the Indenture, and the form of Series 2002 Bond included therein, are available from the City by writing to the attention of the Administrative Services Director, City of Fayetteville, City Administration Building, 113 West Mountain, Fayetteville, Arkansas 72701 and, during the initial offering period only, from the Underwriter, Stephens Inc., 3425 North Futrall, Suite 201, Fayetteville, Arkansas 72703. Certain financial and operating data has been provided by the City from the audited records of the City and certain demographic information has been obtained from other sources which are believed to be reliable. THE SERIES 2002 BONDS Description. The Series 2002 Bonds will be initially dated as of June 1, 2002, and will bear interest payable semiannually on June 1 and December 1 of each year, commencing December 1, 2002, at the rates set forth on the cover page hereof. The Series 2002 Bonds will mature on June 1 in the years and in the principal amounts set forth on the cover page hereof. The Series 2002 Bonds are issuable only in the form of fully registered bonds and, when issued, will be registered in the name of Cede & Co., as nominee of The Depository Trust Company ("DTC"), New York, • New York, to which principal, premium, if any, and interest payments on the Series 2002 Bonds will be made so long as Cede & Co. is the registered owner of the Series 2002 Bonds. Individual purchases of the Series 2002 Bonds will be made only in book -entry form, in denominations of $5,000 or integral multiples thereof. Individual purchasers ("Beneficial Owners") of Series 2002 Bonds will not receive physical delivery of bond certificates. See the caption "BOOK -ENTRY ONLY SYSTEM" herein. All interest payments on the Series 2002 Bonds shall be payable to the persons in whose name such Series 2002 Bonds are registered on the bond registration books maintained by the Trustee, as of the fifteenth day of the calendar month preceding the calendar month in which the applicable interest payment date falls. Principal of and premium, if any, on the Series 2002 Bonds shall be payable at the principal corporate trust office of the Trustee. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Series 2002 Bond to the extent of the sum or sums so paid. So long as DTC or its nominee is the registered owner of the Series 2002 Bonds, disbursement of such payments to DTC Participants is the responsibility of DTC, and the disbursement of such payments to Beneficial Owners is the responsibility of DTC Participants or Indirect Participants, as more fully described herein. Redemption. The Series 2002 Bonds are subject to redemption prior to maturity as follows: (a) The Series 2002 Bonds shall be redeemed prior to maturity, in whole or in part, on any interest payment date, in inverse order of maturity and by lot in such manner as the Trustee shall determine within a maturity, at a redemption price equal to 100% of the principal amount being redeemed, plus accrued interest to the date of redemption, from Project Fund moneys in excess of the amount needed to complete the Project. (b) The Series 2002 Bonds shall be redeemed prior to maturity, in whole or in part, on any interest payment date, in inverse order of maturity and by lot in such manner as the Trustee shall determine within a maturity, at a redemption price equal to 100% of the principal amount being redeemed, plus accrued interest to the date of redemption, from Surplus Tax Receipts. "Surplus Tax Receipts" are • collections of the Sales and Use Tax in excess of the amount necessary to (i) insure the prompt payment of the principal of and interest on Outstanding Bonds and any RLF Loan, (ii) maintain the Debt Service Reserve Fund in an amount equal to the Reserve Requirement, (iii) pay any arbitrage rebate due under Section 148(f) of the Internal Revenue Code of 1986, as amended (the "Code"), and (iv) pay Trustee and Paying Agent fees and expenses. So long as the Series 2002 Bonds are Outstanding, all Surplus Tax Receipts shall be applied to the redemption of the Series 2002 Bonds prior to maturity. See the caption "PROJECTED MANDATORY REDEMPTIONS" herein. Partial Redemption of a Series 2002 Bond. If less than all of the Series 2002 Bonds of a maturity are called for redemption, the particular Series 2002 Bonds or portions of Series 2002 Bonds to be redeemed shall be selected by lot in such manner as the Trustee in its discretion may deem fair and appropriate. So long as DTC or its nominee is the sole registered owner of the Series 2002 Bonds, the procedures established by DTC shall control with respect to the selection of the particular Series 2002 Bonds to be redeemed. Notice of Redemption. Notice of the call for any redemption, identifying the Series 2002 Bonds or portions thereof being called and the date on which they shall be presented for payment, shall be mailed by the Trustee by first class mail (or, so long as DTC or its nominee is the sole registered owner of the Series 2002 Bonds, by any other means acceptable to DTC, including facsimile) to the registered owner of each such Series 2002 Bond addressed to such registered owner at his registered address and placed in the mails not less than thirty (30) nor more than sixty (60) days prior to the date fixed for redemption; provided, however, that failure to give such notice by mailing, or any defect therein, shall not affect the validity of any proceeding for the redemption of any Series 2002 Bond with respect to which no such failure or defect has occurred. Any notice mailed as provided above shall be conclusively presumed to have been duly given, whether or not the registered owner receives the notice. Additional Bonds and RLF Loans. The City may issue from time to time one or more series of Additional Bonds for the purpose of (i) financing Project Costs in connection with the completion of the Project, (ii) refunding the Series 2002 Bonds or any series of Additional Bonds or any RLF Loan, in whole or in part, or (iii) any combination thereof. Additional Bonds shall be secured equally and ratably with the Series 2002 Bonds and any other series of Additional Bonds theretofore issued or any RLF Loan theretofore incurred and then Outstanding, except insofar as any terms or conditions of redemption or purchase established under the Indenture may afford additional benefit or security for the Bonds of any particular series and except for the security afforded by any municipal bond insurance obtained with respect to any particular series of Bonds; provided, however, that RLF • Loans structured as Additional Bonds shall not be secured by the Debt Service Reserve Fund. Before any Additional Bonds are authenticated, there shall be delivered to the Trustee the items required for the issuance of Bonds by the Indenture, plus a Certificate of the Administrative Services Director of the City certifying that, based upon necessary investigation, the Sales and Use Tax receipts transferred to the Trustee during the most recent twelve (12) months were not less than (i) 125% of the maximum Annual Debt Service on all then Outstanding Bonds and any RLF Loan, plus the Additional Bonds then proposed to be issued, and (ii) the amount, if any, needed to make required deposits to the Debt Service Reserve Fund. Prior to any drawdown on an RLF Loan, there shall be delivered to the Trustee a Certificate of the Administrative Services Director of the City certifying that, based upon necessary investigation, the Sales and Use Tax receipts transferred to the Trustee during the most recent twelve (12) months were not less than 125% of the maximum Annual Debt Service on all the Outstanding Bonds and any RLF Loan theretofore incurred, plus the maximum Annual Debt Service on the amount of the additional RLF Loan to be incurred. No Additional Bonds shall be issued and no RLF Loan shall be incurred unless there is no default at the time of issuance under the Indenture. It is the City's present intention to obtain an.RLF Loan in the approximate amount of $100 million in order to obtain the additional funds needed to complete the acquisition, construction and equipping of the Project. It is anticipated that the RLF Loan will be entered into in the fourth quarter of 2002 and funds will be drawn down over a period of 24-36 months, beginning December, 2003. The RLF Loan may, but need not, be structured in the form of an Additional Bond or Bonds. If the proceeds of the Series 2002 Bonds and the amounts available under an RLF Loan are insufficient to complete the funding of the Project, the City may issue Additional Bonds to the extent needed. Pursuant to the Indenture, the maximum principal amount of Bonds and RLF Loans that may be issued or incurred is limited to $125,000,000. Transfer or Exchange. The Bonds may be transferred on the books of registration kept by the Trustee by the registered owner in person or by the owner's duly authorized attorney, upon surrender thereof, together with a written instrument of transfer duly executed by the registered owner or the owner's duly authorized attorney. Upon surrender for transfer of any Bond at the principal corporate office of the Trustee, the City shall execute and the • Trustee shall authenticate and deliver in the name of the transferee or transferees a new Bond or Bonds of the same series and in the same aggregate principal amount and of any authorized denomination or denominations. Transfers of registration or exchanges of Bonds shall be without charge to the Holders of such Bonds, but any taxes or other governmental charges required to be paid with respect to the same shall be paid by the Holder of the Bond requesting such transfer or exchange as a condition precedent to the exercise of such privilege. • The Trustee shall not be required to transfer or exchange any Bond during the period from and including a Record Date to the next succeeding interest payment date of such Bond nor to transfer or exchange any Bond after the mailing of notice calling such Bond for redemption has been made, and prior to such redemption. So long as DTC or its nominee is the sole registered owner of the Series 2002 Bonds, transfers of beneficial interests in the Series 2002 Bonds shall be in accordance with the rules and procedures of DTC and its direct and indirect participants. See the caption "BOOK -ENTRY ONLY SYSTEM" herein. SECURITY FOR THE BONDS General. The Bonds are special obligations of the City secured by and payable from the receipts of a three- quarters of one percent (0.75%) city-wide sales and use tax (the "Sales and Use Tax"). The Sales and Use Tax was levied under Ordinance No. 4327, duly adopted by the City Council of the City on August 7, 2001 (the "Election Ordinance"). Pursuant to the Election Ordinance, a special election was held on November 6, 2001, at which time the qualified electors of the City approved the issuance of capital improvement bonds in principal amount not to exceed $125,000,000 and the corresponding levy of the Sales and Use Tax. The receipts of the Sales and Use Tax were pledged to secure the payment of Debt Service on the Series 2002 Bonds pursuant to Ordinance No. 4389, duly adopted by the City Council of the City on May 7, 2002 (the "Authorizing Ordinance"). The collection of the Sales and Use Tax commenced April I, 2002. See the captions "THE SALES AND USE TAX" and "HISTORICAL SALES AND USE TAX COLLECTIONS" herein. The Bonds do not constitute an indebtedness of the City within the meaning of any constitutional or statutory debt limitation or restriction. The issuance of the Bonds shall not directly, indirectly or contingently obligate the City to levy or pledge any taxes whatsoever or to make any appropriation for the payment of the Bonds, except as described herein with respect to the Sales and Use Tax. Debt Service Reserve. From the proceeds of sale of each series of Bonds issued pursuant to the Indenture, there shall be deposited into the Debt Service Reserve Fund an amount which, together with the amounts then on deposit therein, will be equal to 5% of the aggregate principal amount on all Outstanding Bonds (the "Reserve Requirement"); provided, however, that no proceeds of RLF Loans will be deposited in the Debt Service Reserve Fund and the Debt Service Reserve Fund will not secure RLF Loans structured as Additional Bonds. The Debt Service Reserve Fund shall be used solely to pay the principal of and interest on Outstanding Bonds (not including RLF Loans) as due for which there are no available funds in the Bond Fund to make such payments. If the amount in the Debt Service Reserve Fund is ever reduced below the Reserve Requirement, it shall be reimbursed to an amount equal to the Reserve Requirement through monthly payments, beginning not later than the last day of the month in which the Debt Service Reserve Fund was reduced below the Reserve Requirement, and continuing not later than the last day of each month thereafter until such reimbursement shall have been accomplished, from any funds in the Revenue Fund (after making the required deposits into the Interest Account and Principal Account of the Bond Fund and after providing for the payment of monthly principal and interest payments on RLF Loans, as provided in the Indenture). If a surplus shall exist in the Debt Service Reserve Fund over and above the Reserve Requirement, such surplus shall be deposited into the Interest Account of the Bond Fund. The moneys on deposit in the Debt Service Reserve Fund may be used, together with other available funds, to provide for the payment at maturity or to redeem prior to maturity all, but not less than all, of the Outstanding Bonds (not including RLF Loans). BOOK -ENTRY ONLY SYSTEM The Series 2002 Bonds will be issued only as one fully registered Series 2002 Bond for each maturity in the name of Cede & Co., as nominee for The Depository Trust Company, New York, New York ("DTC"), as registered owner of all the Series 2002 Bonds. The fully registered Series 2002 Bonds will be retained and immobilized in the custody of DTC. DTC (or any successor securities depository) or its nominee for all purposes under the Indenture will be • considered by the City and the Trustee to be the owner or Holder of the Series 2002 Bonds. Owners of any book entry interests in the Series 2002 Bonds (the "book entry interest owners") described below, will not receive or have the right to receive physical delivery of the Series 2002 Bonds, and will not be . considered by the City and the Trustee to be, and will not have any rights as, owners or Holders of the Series 2002 Bonds under the bond proceedings and the Indenture except to the extent, if any, expressly provided thereunder. CERTAIN INFORMATION REGARDING DTC AND DIRECT PARTICIPANTS IS SET FORTH BELOW. THIS INFORMATION HAS BEEN PROVIDED BY DTC. THE CITY, THE UNDERWRITER AND BOND COUNSEL ASSUME NO RESPONSIBILITY FOR THE ACCURACY OF SUCH STATEMENTS. DTC is a limited -purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code, and a "clearing agency" registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds securities that its participants ("Direct Participants") deposit with DTC. DTC also facilitates the settlement among Direct Participants of securities transactions, such as transfers and pledges, in deposited securities through electronic computerized book -entry changes in Direct Participants' accounts, thereby eliminating the need for physical movement of securities certificates. Direct Participants include securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is owned by a number of its Direct Participants and by, the New York Stock Exchange, Inc., the American Stock Exchange LLC, and the National Association of Securities Dealers, Inc. Access to the DTC system is also available to others such as securities brokers and dealers, banks, and trust companies that clear through or maintain a custodial relationship with a Direct Participant, either directly or indirectly ("Indirect Participants"). The Rules applicable to DTC and its Direct and Indirect Participants are on file with the Securities and Exchange Commission. Purchases of Series 2002 Bonds under the DTC system must be made by or through Direct Participants, which will receive a credit for the Series 2002 Bonds on DTC's records. The ownership interest of each actual purchaser of each Series 2002 Bond ("Beneficial Owner") is in turn to be recorded on the Direct and Indirect Participants' records. Beneficial Owners will not receive written confirmation from DTC of their purchase, but Beneficial Owners are expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the Direct or Indirect Participant through which the Beneficial Owner • entered into the transaction. Transfers of ownership interests in the Series 2002 Bonds are to be accomplished by entries made on the books of Direct and Indirect Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests in Series 2002 Bonds, except in the event that use of the Book -Entry System for the Series 2002 Bonds is discontinued. To facilitate subsequent transfers, all Series 2002 Bonds deposited by Direct Participants with DTC are registered in the name of DTC's partnership nominee, Cede & Co. or such other name as may be requested by an authorized representative of DTC. The deposit of Series 2002 Bonds with DTC and their registration in the name of Cede & Co. or such other nominee do not effect any change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the Series 2002 Bonds, DTC's records reflect only the identity of the Direct Participants to whose accounts such Series 2002 Bonds are credited, which may or may not be the Beneficial Owners. The Direct and Indirect Participants will remain responsible for keeping account of their holdings on behalf of their customers. Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time. Neither DTC nor Cede & Co. (nor such other DTC nominee) will consent or vote with respect to the Series 2002 Bonds. Under its usual procedures, DTC will mail an Omnibus Proxy to the City as soon as possible after the Record Date. The Omnibus Proxy will assign Cede & Co.'s consenting or voting rights to those Direct Participants to whose accounts the Series 2002 Bonds are credited on the Record Date (identified in a listing attached to the Omnibus Proxy). Payment of Debt Service on the Series 2002 Bonds will be made to Cede & Co., or such other nominee as may be required by an authorized representative of DTC. DTC's practice is to credit Direct Participants' accounts, upon DTC's receipt of funds and corresponding detail information from the City or the Trustee on payable date in accordance with their respective holdings shown on DTC's records. Payments by Participants to Beneficial Owners • will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in "street name," and will be the responsibility of such Participant and not of DTC, the Trustee or the City, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of Debt Service to Cede & Co. (or such other nominee as may be requested by an authorized representative of DTC) is the responsibility of the City or the Trustee, disbursement of such payments to Direct Participants shall be the responsibility of DTC, and disbursement of such payments to the Beneficial Owners shall be the responsibility of Direct and Indirect Participants. BENEFICIAL OWNERS SHOULD CONSULT WITH THE DIRECT PARTICIPANTS OR INDIRECT PARTICIPANTS FROM WHOM THEY PURCHASE A BOOK ENTRY INTEREST TO OBTAIN INFORMATION CONCERNING THE BOOK -ENTRY SYSTEM MAINTAINED BY SUCH DIRECT PARTICIPANTS OR INDIRECT PARTICIPANTS TO RECORD SUCH INTERESTS, TO MAKE PAYMENTS, TO FORWARD NOTICES OF REDEMPTION AND OF OTHER INFORMATION. THE CITY AND THE TRUSTEE HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY ASPECTS OF THE RECORDS OR NOTICES RELATING TO, OR PAYMENTS MADE ON ACCOUNT OF, BOOK ENTRY INTEREST OWNERSHIP, OR FOR MAINTAINING, SUPERVISING OR REVIEWING ANY RECORDS RELATING TO THAT OWNERSHIP. The Trustee and the City, so long as a book entry method of recording and transferring interest in the Series 2002 Bonds is used, will send any notice of redemption or of any Indenture amendment or supplement or other notices to Bondholders under the Indenture only to DTC (or any successor securities depository) or its nominee. Any failure of DTC to advise any Direct Participants, or of any Direct Participants or Indirect Participants to notify any Beneficial Owner, of any such notice and its content or effect will not affect the validity of the redemption of the Series 2002 Bonds called for redemption, the Indenture amendment or supplement, or any other action premised on notice given under the Indenture. The City and the Trustee cannot and do not give any assurances that DTC, Direct Participants, Indirect Participants or others will distribute payments of Debt Service on the Series 2002 Bonds made to DTC or its nominee as the registered owner of the Series 2002 Bonds, or any redemption or other notices, to the Beneficial Owners, or that they will do so on a timely basis, or that DTC will serve and act in a manner described in this Official Statement. DTC may discontinue providing its services as securities depository with respect to the Series 2002 Bonds at any time by giving reasonable notice to the City or the Trustee. Under such circumstances, in the event that a • successor securities depository is not obtained, bond certificates are required to be printed and delivered. In addition, the City may decide to discontinue use of the system of book -entry transfers through D7'C (or a successor securities depository). In that event, bond certificates will be printed and delivered. DTC advises that the current "Rules" applicable to DTC are on file with the Securities and Exchange Commission, and the current "Procedures" of DTC to be followed in dealing with DTC Participants are on file with DTC. THE PROJECT Existing Wastewater System. The City presently operates and maintains a municipal wastewater system, including administrative services, a collection system, pumping stations and a wastewater treatment plant. The existing wastewater system includes an estimated 430 miles of pipelines, a 12.6 million gallon per day advanced wastewater treatment plant and 33 wastewater pumping stations. These facilities serve an estimated population equivalent of 75,000 and transport an average daily flow in excess of 12 million gallons. Growth of the service area population has consumed the available wastewater system capacity and has justified the construction of core system improvements. A comprehensive facility plan has been developed which identifies a number of wastewater system components that must be upgraded, expanded or replaced in order to meet the service area needs for a projected 20 -year design period. In addition to the provision of needed infrastructure capacity, the proposed improvements address ancillary issues of bypassing, odor control, residuals management and operational economies. A study of numerous alternatives and scenarios found the selected scope of the Project to represent the most cost-effective strategy based upon a combination of construction costs and the present worth of long-term operating costs. Proposed Project Improvements. The scope of the Project includes the construction of additional interceptor sewer lines, force mains and pumping stations, existing treatment plant renovations, the construction of a • new wastewater treatment plant with a capacity of 10 million gallons per day, and related wastewater improvements. The current wastewater system is configured to pump all of the City's wastewater flow to a single treatment plant on the eastern side of the City, with a portion of the treated wastewater flow being pumped back to the western side of the City. Completion of the Project will eliminate this duplicate pumping between watersheds by construction of a new west side treatment plant. More than 30 miles of new pipelines ranging in size from 8 -inch to 48 -inch in diameter will be constructed as part of the Project. A revised collection system will eliminate the need for six • existing lift stations, and nine existing lift stations will be upgraded. The construction of the new west side plant, coupled with the upgrade of the existing east side treatment plant (revised capacity of 11.8 million gallons per day is reduced as a result of improved odor control and processing), will increase total wastewater treatment capacity from 12.6 to 21.8 million gallons per day and will satisfy projected 20 -year needs. The total cost of the Project is expected to be approximately $120 million. This cost estimate has been developed by the various design firms and includes allowances for inflation. Within the $120 million Project budget are cost allowances for professional services, right-of-way purchase, construction contracts, start-up services, performance evaluation services and a contract contingency. The preliminary Project schedule anticipates commencement of construction in the fourth quarter of 2003 and completion late in 2005. The Project is expected to be financed by a combination of Bonds and RLF Loans, the debt service on each to be paid from Sales and Use Tax receipts. The issuance of Bonds and the incurrence of RLF Loans in aggregate principal amount not to exceed $125 million, and the pledge of Sales and Use Tax receipts to pay the debt service thereon, has been approved by the voters of the City. In the event proceeds of Bonds and RLF Loans are insufficient to provide for the costs of the Project in full, the deficiency is expected to be funded with System revenues or indebtedness secured by System revenues. HISTORICAL SALES AND USE TAX COLLECTIONS Collection of the Sales and Use Tax commenced April 1, 2002. Set forth below is a table showing receipts of the City's 1% general city-wide sales and use tax for the last five years and for the twelve-month period from April I, 2001 to March 31, 2002. The table also shows the growth percentage of historical receipts and what historical receipts of the general city-wide sales and use tax would have been had the rate been three-quarters of one percent (0.75%). Historical Collections Projected Collections . Year (1.00%) Growth Percentage (0.75%) 1997 S 9,601,424 n/a $7,201,068 1998 10,445,093 8.75% 7,833,820 1999 10,985,041 5.17% 8,238,781 2000 11,580,857 5.42% 8,685,643 2001 11,935,870 3.07% 8,951,902 2002111 12,189,524 n/a 9,142,143 For the twelve-month period from April 1.2001 to March 31, 2002. ESTIMATED SOURCES AND USES OF FUNDS The proceeds of the Series 2002 Bonds are expected to be used as follows: Sources of Funds'l Series 2002 Bond Proceeds $25,000,000 Total Sources: S25.000000. Uses of Funds'l Deposit to Project Fund $23,507,680 Debt Service Reserve Fund Deposit 1,250,000 Costs of Issuance and Underwriter's Discount 242,320 • Total Uses: 525.000.000 lt) Preliminary; subject to change. ESTIMATED DEBT SERVICE REQUIREMENTS As of the date of closing, the Series 2002 Bonds will constitute the only debt obligations secured by • receipts of the Sales and Use Tax. The following table sets forth estimates of the amounts required to pay scheduled principal of and interest on the Series 2002 Bonds during each year: Series 2002 Series 2002 Total .Debt Year Principal Interest('] Service 2002 $ - $ 340,293 $ 340,293 2003 6,590,000 614,685 7,204,685 2004 6,505,000 467,472 6,972,472 2005 5,320,000 306,360 5,626,360 2006 4,200,000 156,210 4,356,210 2007 2,385,000 42,930 2,427,930 Totals: S25.000.000 SI.927.950 $26.927.950 Preliminary; subject to change. Assuming for purposes of this Preliminary Official State, an average coupon rate on the Series 2002 Bonds of 2999% per annum. ESTIMATED DEBT SERVICE COVERAGE The following table shows estimated maximum and average annual debt service coverage with respect to the Series 2002 Bonds utilizing historical sales and use tax receipts from April 1, 2001, to March 31, 2002. Historical Sales and Use Tax Receipts' $9,142,143 Maximum Annual Debt Service Requirement on Series 2002 Bonds12> $7,204,685 Average Annual Debt Service Requirement on Series 2002 Bonds(2) $5,317,531 Maximum Annual Debt Service Coverage I.27X Average Annual Debt Service Coverage 1.72X (t) Based on 75% of the historical collections of the 1% general city-wide sales and use tax for the twelve-month period from April 1, 2001 to March 31, 2002. See the caption "HISTORICAL SALES AND USE TAX COLLECTIONS" herein. (2) Preliminary; subject to change. Calculated for the years 2003-2007. See the caption "ESTIMATED DEBT SERVICE REQUIREMENTS" herein. THE COVERAGE NUMBERS SET FORTH ABOVE ARE BASED ON HISTORICAL SALES AND USE TAX RECEIPTS. ACTUAL RECEIPTS OF THE SALES AND USE TAX WILL DEPEND ON NUMEROUS FACTORS, AND THERE CAN BE NO ASSURANCE THAT FUTURE SALES AND USE TAX RECEIPTS AVAILABLE TO PAY DEBT SERVICE ON THE SERIES 2002 BONDS WILL APPROXIMATE SUCH HISTORICAL RESULTS. • • PROJECTED MANDATORY REDEMPTIONS The table under the caption "ESTIMATED DEBT SERVICE REQUIREMENTS" does not reflect possible • mandatory redemptions of the Series 2002 Bonds from Surplus Tax Receipts, if available. Surplus Tax Receipts are all receipts of the Sales and Use Tax in excess of the amount necessary (i) to assure the prompt payment of the principal of and interest on Outstanding Bonds and any RLF Loan, (ii) to maintain the Debt Service Reserve Fund in an amount equal to the Reserve Requirement, (iii) to pay any arbitrage rebate due under Section 148(O of the Code, and (iv) to pay Trustee and Paying Agent fees and expenses. So long as any of the Series 2002 Bonds are Outstanding, Surplus Tax Receipts are required to be used to redeem Series 2002 Bonds prior to maturity. THERE CAN BE NO ASSURANCE GIVEN THAT SALES AND USE TAX RECEIPTS WILL BE REALIZED IN THE AMOUNTS ASSUMED IN THE TABLE ABOVE. See the caption "THE SALES AND USE TAX — Future Sales and Use Tax Receipts" herein. IN ADDITION, THERE CAN BE NO ASSURANCE GIVEN AS TO THE PRECISE AMOUNT AND TIMING OF DEBT SERVICE PAYMENTS ON ANY RLF LOAN OR EARNINGS ON THE DEBT SERVICE RESERVE FUND. Year Ending Series 2002 Bonds Redeemed Total Series 2002 Bond June I(') Principal Due Prior to Maturity(2) Principal Retired 2003 $6,590,000 $1,860,000 $8,450,000 2004 6,505,000 1,925,000 8,430,000 2005 5,320,000 2,800,000 8,120,000 Series 2002 Bonds are subject to mandatory redemption from Surplus Tax Receipts on each June I and December 1. See the caption "TI'IE SERIES 2002 BONDS —Redemption" herein. (2) Assuming Sales and Use Tax receipts of $9,142.143 for the twelve months ending June 1, 2003, 2004 and 2005, scheduled debt service on an RLF Loan of $-0- for the twelve months ending June 1. 2003, $219,178 for the twelve months ending June 1, 2004, and $1,561,301 for the twelve months ending June 1, 2005, earnings on the Debt Service Reserve Fund at a rate of 3.10% and use of the entire amount in the Debt Service Reserve Fund ($1.250,000) to redeem Series 2002 Bonds on June 1, 2005. THE CITY • • General. The City is a city of the first class organized and existing under the laws of the State of Arkansas. The City is the seat of government of Washington County (the "County") and is the sixth largest city in the State. The City is located in the Metropolitan Statistical Area of Fayetteville/Springdale/Rogers (the "MSA"), which includes all of Washington and Benton Counties in the northwest comer of the State and is approximately 185 miles northwest of Little Rock, Arkansas, 125 miles east of Tulsa, Oklahoma, and 210 miles south of Kansas City, Missouri. The City is served by U.S. Interstate 540, U.S. Highways 62 and 71, and State Highways 16, 45, 112, 156, 180 and 265. The Burlington Northern Railroad has several lines running through the City, and a municipal airport with a 6,006 -foot runway is available for limited commuter travel. The Northwest Arkansas Regional Airport is located approximately 40 minutes from downtown Fayetteville and provides daily flights to numerous venues. Government. The City currently operates under the Mayor -Council form of government pursuant to which a mayor, city attorney, city clerk and eight aldermen are elected, two from each of the City's four wards. The mayor, city attorney and city clerk are full-time positions elected to four year terms. Aldermen also serve four year terms. There is currently one vacant alderman position. 1 t The City's elected officials and the dates on which their respective terms expire are as follows: Name Office Term Expires • Dan Coody Mayor 12/31/04 Kit Williams. City Attorney 12/31/02 Heather Woodruff City Clerk 12/31/04 Bob Davis Alderman 12/31/04 Lioneld Jordan Alderman 12/31/04 Don Man Alderman 12/31/04 Robert Reynolds Alderman 12/31/02 Kevin Santos Alderman 12/31/02 Brenda Thiel Alderman 12/31/04 Cyrus Young Alderman 12/31/02 Population. The following is a table of population changes for the City, the MSA and the State of Arkansas, according to the United States Census Bureau: City of State of Year Fayetteville MSA Arkansas 1960 20,274 92,069 1,786,272 1970 30,729 127,846 1,923,322 1980 36,608 178,609 2,286,435 1990 42,099 210,908 2,350,624 2000 58,047 311,121 2,673,400 Economic Data. Per capita personal income figures for the MSA and the State of Arkansas are as follows: State of Year MSA Arkansas 1992 $18,765 $16,995 • J1 1993 18,765 16,995 1994 19,590 17,750 1995 20,193 18,546 1996 20,870 19,442 1997 21,586 20,228 1998 22,893 21,256 1999 24,213 22,223 Source: Bureau of Economic Analysis. Retail sales figures for the MSA and the State are as follows: MSA State of MSA as % of Year Arkansas State of Arkansas 1993 $1,880,105,000 $16,997,721,000 11.06% 1994 2,217,229,000 19,090,516,000 11.61 1995 2,486,425,000 20,998,923,000 11.84 1996 2,692,554,000 22,053,022,000 12.21 1997 2,845,968,000 22,872,236,000 12.44 1998 3,018,896,000 23,944,647,000 12.61 1999* n/a n/a n/a 2000 3,526,791,000 28,488,033,000 12.38 2001 3,806,422,000 29,652,693,000 12.84 * Methodology changed to calendar year basis. No reliable information is available for 1999. Source: Sales and Marketing Management Survey of Buyer Power. • 10 I The following table shows the total assessed value of non -utility real and personal property within the City for the years indicated: • Year Real Property Personal Property Total 1994 $245,093,513 $ 86,322,277 $331,415,790 1995 340,593,452 101,274,620 441,868,072 1996 359,369,202 113,157,365 472,526,567 1997 382,798,143 120,064,627 502,862,770 1998 401,001,338 127,575,096 528,576,434 1999 413,648,415 137,404,499 551,052,914 2000 432,951,171 145,147,891 578,099,062 2001 486,853,822 155,794,579 642,648,401 t Source: Washington County Tax Assessor's Office. The assessed value represents 20% of the appraised value of property. Building permits issued by the City' l are shown below for the years indicated: 1997 1998 1999 2000 2001 Residential Building 326 304 451 361 339 Permits Commercial Building 39 41 59 27 38 Permits Value of All Building Permits $59,288,194 $51,948.911 $100.744.816 $121,887.263 $85.262,302 (t) Does not include building activity of the Universityof Arkansas. school permits and additions/alterations to existing structures. Source: City of Fayetteville. • Unemployment figures for the MSA and the State of Arkansas, according to the U.S. Bureau of Labor Statistics, are as follows: Year MSA State of Arkansas 1994 2.4% 5.3% 1995 2.4 4.9 1996 2.9 5.4 1997 3.0 5.3 1998 3.2 5.5 1999 2.4 4.5 • 2000 2.1 4.4 2001 1.7 5.1 2002* 2.6 5.9 * February only. Employment and Industry. The principal campus of the University of Arkansas is located in the City and had total enrollment for the Spring semester of 2002 of approximately 15,000. For the 2001-02 fiscal year ending June 30, 2002, the University has an operating budget in excess of $98.7 million, which does not include the agricultural experimentation station or other associated operations. On the Fayetteville campus, the University employs approximately 2,635 faculty, administrative, secretarial, clerical and maintenance personnel in both full- time and part-time positions, making the University the largest employer in the City. • I1 Other major employers in the City, their products or services and approximate number of employees are set forth below: Employer Product or Service Employee Range Pinnacle Foods Frozen Dinners 1,000-2,499 Superior Industries Cast Aluminum Wheels 1,000-2,499 Tyson's Original Mexican Mexican Food Products 500-599 Tyson's Entree Division Frozen Dinner Entrees 500-599 Levi Straus Jackets 300-399 McClinton -Anchor Co. Limestone & Hot Mix 300-399 American Air Filter Air Filters 200-299 Baldwin Piano & Organ Elec. Organs & Circ. Bed 200-299 Marshalltown Tools Cement Finishing Tools 200-299 Standard Register Business Forms 200-299 Danaher Tool Group Hand tools 100-199 Kearney Company Hi -Line Connectors 100-199 Source: Fayetteville Chamber of Commerce. THE SALES AND USE TAX Generally. The Sales and Use Tax is levied under the Election Ordinance pursuant to the authority of the Act. The Sales and Use Tax is a tax within the City on all items which are subject to taxation under The Arkansas Gross Receipts Act of 1941 and a tax on the receipts from storing, using or consuming tangible personal property under The Arkansas Compensating (Use) Tax Act of 1949. The Sales and Use Tax is collected only on the first $2,500 of gross receipts, gross proceeds or sales price from any single transaction. Pursuant to the Indenture and the Authorizing Ordinance, the City has pledged the receipts of the Sales and Use Tax to the payment of the Series 2002 Bonds. Collection of the Sales and Use Tax commenced April 1, 2002. Sales Tax. The sales tax portion of the Sales and Use Tax is generally levied upon the gross proceeds and receipts derived from all sales to any Person within the City of the following: (a) Tangible personal property; (b) Natural or artificial gas, electricity, water, ice, steam, or any other utility or public service except transportation services, sewer services and sanitation or garbage collection services; (c) (i) Service by telephone, telecommunications and telegraph companies to subscribers or users, including transmission of messages or images, whether local or long distance, including all service, installation, construction and rental charges having any connection with transmission of any message or image; (ii) Service of furnishing rooms, suites, condominiums, townhouses, rental houses or other accommodations by hotels, apartment hotels, lodging houses, tourist camps, tourist courts, property management companies, or any other provider of accommodations to transient guests; (iii) Service of cable television, community antenna television, and any and all other distribution of television, video, or radio services with or without the use of wires provided to subscribers, paying customers or users, including installation, service, rental, repair and other charges having any connection with the providing of the said services; (iv) Service or alteration, addition, cleaning, refinishing, replacement and repair of motor vehicles, aircraft, farm machinery and implements, motors of all kinds, tires and batteries, boats, electrical appliances and devices, furniture, rugs, upholstery, household appliances, televisions and radios, jewelry, watches and clocks, engineering instruments, medical and surgical instruments, machinery of all kinds, bicycles, office machines and equipment, shoes, tin and sheet metal, mechanical tools and shop equipment; however, the tax does not apply to (A) coin operated car washes, (B) the maintenance or repair of railroad • • 12 parts, railroad cars and equipment brought into the City solely and exclusively for the purpose of being repaired, refurbished, modified, or converted within the City, (C) the service of alteration, addition, • cleaning, refinishing, replacement or repair of commercial jet aircraft or commercial jet aircraft components or subcomponents, (D) the repair or remanufacture of industrial metal rollers or platens that have a remanufactured non-metallic material covering on all or a part of the roller or platen surface, or (E) the alteration, addition, cleaning, refinishing, replacement or repair of non -mechanical, passive or manually operated components of buildings or other improvements or structures affixed to real estate; (v) Service of providing transportation or delivery of money, property or valuables by armored car; service of providing cleaning or janitorial work; service of pool cleaning and servicing; pager services; telephone answering services; landscaping and non-residential lawn care services; service of parking a motor vehicle or allowing a motor vehicle to be parked; service of storing a motor vehicle; service of storing furs; and the service of providing indoor tanning at a tanning salon; (d) Printing of all kinds, types and characters, including the service of overprinting, and photography of all kinds; (e) Tickets or admissions to places of amusement, to athletic, entertainment, recreational events, or fees for the privilege of having access to or the use of amusement, entertainment, athletic or recreational facilities, including free or complimentary passes and tickets, admissions, dues or fees; (f) Dues and fees to health spas, health clubs and fitness clubs; dues and fees to private clubs which hold any permit from the Alcoholic Beverage Control Board allowing the sale, dispensing or serving of alcoholic beverages of any kind on the premises; and (g) Lease or rental of motor vehicles, other than diesel trucks rented for residential moving or commercial shipping or farm machinery rented or leased for a commercial purpose, for a period less than 30 days, or purchase of motor vehicles for rental or lease regardless of the length of the rental or lease. • Exemptions from Sales Tar. As summarized below, several types of transactions have been exempted from the sales tax by the General Assembly of the State. Some of the current exemptions include the sale of: (a) New or used house trailers, mobile homes, aircraft, motor vehicles, trailers or semi -trailers and a used house trailer, mobile home, aircraft, motor vehicle, trailer or semi -trailer is taken as a credit or part payment of the purchase price, when the total consideration is less than the following: $2,000 for aircraft, house trailers and mobile homes (or $10,000 in case the house trailer or mobile home is a "manufactured home"); and $2,500 for motor vehicles, trailers and semi -trailers; (b) Aircraft held for resale and used for rental or charter, whether by a business or an individual for a period not to exceed one year from the date of purchase of aircraft; (c) Tangible personal property or services by churches, except where such organizations may be engaged in business for profit; (d) Tangible personal property, or service by charitable organizations, except where such organizations may be engaged in business for profit; (e) Food in public, common, high school or college cafeterias and lunchrooms operated primarily for teachers and pupils, and not operated primarily for the public or for profit; (f) Newspapers; (g) Property or services to the United States Government; motor vehicles and adaptive equipment to disabled veterans who have purchased said vehicles or equipment with financial assistance of the Veterans Administration; tangible personal property to the Salvation Army, Heifer Project International, Inc., Habitat for Humanities, the Boy Scouts of America, the Girl Scouts of America or any of the Scout Councils in the State; tangible personal property or • service to the Boys Clubs of America or any local councils or organizations of the Boys Clubs of America, the Girls Clubs of America or any local councils or organizations of the Girls Clubs of 13 America, to the Poets' Roundtable of Arkansas, to 4-H Clubs and FFA Clubs, to the Arkansas 4-H Foundation, the Arkansas Future Farmers of America Foundation and the Arkansas Future Farmers of America Association; (h) Gasoline or motor vehicle fuel on which the motor vehicle fuel or gasoline tax has been paid to the • State and special fuel or petroleum products sold for consumption by vessels, barges and other commercial watercraft and railroads; (i) Property resales to Persons regularly engaged in the business of reselling the articles purchased:, (j) Advertising space in newspapers and publications and billboard advertising services; (k) Gate admissions at State, district, county or township fairs or at any rodeo if the receipts derived from gate admissions to the rodeo are used exclusively for the improvement, maintenance and operation of such rodeo, and if no part of the net earnings thereof inures to the benefit of any private stockholder or individual; (1) Property or services which the State is prohibited by the constitution or laws of the United States or by the constitution of the State from taxing or further taxing and tangible personal property exempted from taxation by the Arkansas Compensating (Use) Tax Act of 1949, as amended; (m) Isolated sales not made by an established business; (n) Cotton, seed cotton, lint cotton, bated cotton, whether compressed or not, or cotton seed in its original condition; seed for use in commercial production of an agricultural product or of seed; raw products from the farm, orchard or garden, where such sale is made by the producer of such raw products directly to the consumer and user; livestock, poultry, poultry products and dairy products of producers owning not more than five cows; and baby chickens; (o) Foodstuffs to governmental agencies for free distribution to any public, penal and eleemosynary institutions or for free distribution to the poor and needy, and the rental or sale of medical equipment, for the benefit of Persons enrolled in and eligible for Medicare or Medicaid programs; (p) Tangible personal property or services provided to any hospital or sanitarium operated for charitable and nonprofit purposes or any nonprofit organization whose sole purpose is to provide temporary housing to the family members of patients in a hospital or sanitarium; (q) Used tangible personal property when the used property was (I) traded in and accepted by the seller as part of the sale of other tangible personal property and (2) the Arkansas Gross Receipts Tax was collected and paid on the total amount of consideration for the sale of the other tangible personal property without any deduction or credit for the value of the used tangible personal property; provided, however, this exemption does not apply to transactions involving used automobiles, used mobile homes, or used aircraft; (r) Unprocessed crude oil; (s) Tangible personal property consisting of machinery and equipment used directly in producing, manufacturing, fabricating, assembling, processing, finishing or packaging of articles of commerce at (i) new manufacturing or processing plants or facilities in the State or (ii) existing manufacturing or processing plants or facilities in the State if the tangible personal property is used to replace existing machinery and equipment; (t) Property consisting of machinery and equipment required by State law or regulation to be installed and utilized by manufacturing or processing plants or facilities to prevent or reduce air and/or water pollution or contamination; (u) Electricity used in the manufacture of aluminum metal by the electrolytic reduction process and sale of articles sold on the premises of the Arkansas Veterans Home; (v) Automobile parts which constitute "core charges," which are received for the purpose of securing a trade-in for the article purchased; (w) Bagging and other packaging and tie materials sold to and used by cotton gins for packaging and/or tying baled cotton and from the sale of twine which is used in the production of tomato crops; (x) Prescription drugs by licensed pharmacists, hospitals, oncologists or dispensing physicians, and oxygen sold for human use on prescription of a licensed physician; 14 (y) Property or services to humane societies; (z) Vessels, barges and towboats of at least fifty tons load displacement and parts and labor used in • the repair and construction of the same; (aa) Property or sales to all orphans' homes, or children's homes, which are not operated for profit and whether operated by a church, religious organization or other benevolent charitable association; (bb) Agricultural fertilizer, agricultural limestone and agricultural chemicals; (cc) Sale of tickets or admissions, by municipalities, to places of amusement, to athletic entertainment, recreational events, or fees for the privilege of having access to or the use of amusement, entertainment, athletic or recreational facilities, including free or complimentary passes, tickets, admissions, dues or fees; (dd) Rental and/or lease of specialized equipment used in the filming of a motion picture; (ee) New and used farm machinery and equipment; (IT) New automobiles to a veteran of the United States Armed Services who is blind as a result of a service connected injury; (gg) Motor vehicles sold to municipalities, counties, school districts, and state supported colleges and universities; (hh) School buses sold to school districts and, in certain cases, to other purchasers providing school bus service to school districts; (ii) Natural gas, LP gas, or electricity sold to a processor or mining company engaging in open pit and underground mining or processing of bauxite; (jj) Feedstuffs used in the commercial production of livestock or poultry; (kk) New custom manufactured homes constructed from materials on which the State sales tax has been paid; • (II) The first 500 kilowatt hours of electricity per month and the total franchise taxes billed to each residential customer whose household income is less than $12,000 per year; (mm) Waste fuel used in producing, manufacturing, fabricating, assembling, processing, finishing, or packaging of articles of commerce at manufacturing or processing plants or facilities in the State; (nn) Electricity and natural gas to qualified steel manufacturers; (oo) Tangible personal property lawfully purchased with food stamps, food coupons, food instruments or vouchers in connection with certain Federal programs; (pp) Publications sold through regular subscriptions; (qq) Tickets for admission to athletic events and interscholastic activities of public and private elementary and secondary schools in the State and tickets for admission to athletic events at public and private colleges and universities in the State; (rr) Prescriptive adaptive medical equipment and prescriptive disposable medical equipment; (ss) Insulin and test strips for testing blood sugar levels in humans; (it) Telephone instruments sent into the State for refurbishing or repair and then shipped back to the state of origin; (uu) Industrial metal rollers sent into the State for repair or remanufacture and then shipped back to the state of origin; (vv) New motor vehicles purchased by non-profit organizations and used for the performance of contracts with the Department of Human Services, and new motor vehicles purchased with Urban Mass Transit Administration funds if (i) the vehicles are purchased in lots of ten vehicles, (ii) meet minimum State specifications, and (iii) vehicles are used for transportation under the Department of Human Services' programs for the aging, • disabled, mentally ill, and children and family services; (ww) Motor fuels to owners or operators of motor buses operated on designated streets according to regular schedule and under municipal franchise which are used for municipal transportation purposes; 15 (xx) Parts or other tangible personal property incorporated into or which become a part of commercial jet aircraft component or subcomponent; (yy) Transfer of fill material by a business engaged in transporting or delivering fill material; (zz) Long-term leases, thirty days or more, of commercial trucks used for interstate transportation of goods under certain conditions; (aaa) Foodstuffs to nonprofit agencies; (bbb) Tangible personal property consisting of forms constructed of plaster, cardboard, fiberglass, natural fibers, synthetic fibers or composites and which are destroyed or consumed during the manufacture of the item; (ccc) Natural gas used as a fuel in the process of manufacturing glass; (ddd) Sales to Fort Smith Clearinghouse; (eee) Substitute fuel used in producing, manufacturing, fabrication, assembling, processing, finishing or packaging of articles at manufacturing facilities or processing plants in the State; (ffl) Railroad rolling stock used in transporting persons or property in interstate commerce; (ggg) Parts or other tangible personal property which become apart of railroad parts, railroad cars and equipment brought into the State for the purpose of being repaired, refurbished, modified or converted within the State; (hhh) Fire protection and emergency equipment to be owned by and exclusively used by a volunteer fire department, and supplies and materials to be used in the construction and maintenance of volunteer fire departments; and (iii) Gas produced from biomass and sold for the purpose of generating energy to be sold to the gas producer. Reference is made to "The Arkansas Gross Receipts Act of 1941," Title 26, Chapter 52 of the Arkansas Code of • 1987 Annotated, for more information concerning the sales tax. Use Tax. The use tax portion of the Sales and Use Tax is levied on every Person for the privilege of storing, using, distributing or consuming in the City any article of tangible personal property purchased for storage, use, distribution or consumption. The use tax applies to the use, distribution, storage or consumption of every article of tangible personal property except as hereinafter provided. The use tax does not apply to aircraft equipment, and railroad parts, cars, and equipment, nor to tangible personal property owned or leased by aircraft, automotive or railroad companies brought into the City solely and exclusively for refurbishing, conversion, or modification within the City or storage for use outside or inside the City regardless of the length of time any such property is so stored in the City. The use tax is levied on the following described tangible personal property: (a) Tractors, trailers, semi -trailers, trucks, buses and other rolling stock, including replacement tires, used directly in the transportation of persons or property in intrastate or interstate common carrier transportations; (b) Property (except fuel) consumed in the operation of railroad rolling stock,: (c) Transmission lines and pumping or pressure control equipment used directly in or connected to the primary pipeline facility engaged in intrastate or interstate common carrier transportation of property; (d) Airplanes and navigation instruments used directly in or becoming a part of flight aircraft engaged in transportations of persons or property in regular scheduled intrastate or interstate common carrier transportation; (e) Exchange equipment, lines, boards and all accessory devices used directly in and connected to the primary facility engaged in the transmission of messages; (t) Transmission and distribution pipelines in pumping or pressure control and equipment used in connection therewith used directly in primary pipeline facility for the purpose of transporting and delivering natural gas; (g) Transmission and distribution lines, pumping machinery and controls used in connection therewith • in cleaning or treating equipment of primary water distribution system; 16 (h) Property of public electric power companies consisting of all machinery and equipment including reactor cores and related accessory devices used in the generation and production of electric power and energy and • transmission facilities consisting of the lines, including poles, towers and other supporting structures, transmitting electric power and energy together with substations located on or attached to such lines; and (i) Computer software. Exemptions from Use Tax. Some of the property exempted from the use tax by the General Assembly of the State is as follows: (a) Property, the storage, use or consumption of which the State is prohibited from taxing under the Constitution or laws of the United States of America or the State; (b) Sales of tangible personal property in which the tax under the Arkansas Gross Receipts Act of 1941 is levied; (c) Tangible personal property which is exempted from the sales tax under the Arkansas Gross Receipts Act of 1941; (d) Feedstuffs used in the commercial production of livestock or poultry in the State; (e) Unprocessed crude oil; (I) Machinery and equipment used directly in producing, manufacturing, fabricating, assembling, processing, finishing or packaging of articles of commerce at manufacturing or processing plants or facilities in the State, including facilities and plants for manufacturing feed, processing of poultry and/or eggs and livestock and the hatching of poultry and such equipment is either (1) purchased to create or expand manufacturing or processing plants in the State, (2) purchased to replace existing machinery and used directly in producing, manufacturing, fabricating, assembling, processing, finishing or packaging of articles of commerce at manufacturing or processing plants in the State, or (3) required by State law to be installed and utilized by manufacturing or processing plants to prevent or reduce air and/or water pollution or contamination; (g) Custom manufactured homes constructed with materials on which the sales or use tax has once • been paid; (h) Aircraft, aircraft equipment, railroad parts, cars, and equipment, and tangible personal property owned or leased by aircraft, airmotive, or railroad companies, brought into the State solely and exclusively for refurbishing, conversion, or modification or for storage for use outside or inside the State; (i) Vessels, barges, and towboats of at least 50 tons load displacement and parts and labor used in the repair and construction of them; 0) Motor fuels to the owners or operators of motor buses operated on designated streets according to regular schedule, under municipal franchise, which are used for municipal transportation purposes; (k) Agricultural fertilizer, agricultural limestone, agricultural chemicals, including agricultural pesticides and herbicides used in commercial production of agricultural products, and vaccines, medications, and medicinal preparations, used in treating livestock and poultry being grown for commercial purposes and other ingredients used in the commercial production of yeast; (I) All new and used motor vehicles, trailers or semi -trailers that are purchased for a total consideration of less than $2,000; and (m) Any tangible personal property used, consumed, distributed, or stores in this State upon which a like tax, equal to or greater than the Arkansas Compensating (Use) Tax, has been paid in another state. Reference is made to "The Arkansas Compensation (Use) Tax Act of 1949," Title 26, Chapter 53 of the Arkansas Code of 1987 Annotated, for more information concerning the use tax. Administration. Pursuant to the Act, the Commissioner of Revenues of the State (the "Commissioner") performs all functions incidental to the administration, collection, enforcement and operation of the Sales and Use Tax. All Sales and Use Tax receipts collected, less certain charges payable and retainage due the commissioner for administrative services in the amount of 3% of the gross Sales and Use Tax receipts, shall be remitted by the State • Treasurer to the Trustee monthly. See the caption "SUMMARY OF THE INDENTURE —Application of Sales and Use Tar Receipts" herein. 17 Future Sales and Use Tax Receipts. Sales and Use Tax receipts will be contingent upon the sale and use of property and services within the City, which activity is generally dependent upon economic conditions within the City. Also, Sales and Use Tax receipts may be affected by changes to transactions exempted from the Sales and Use • Tax made by legislation adopted by the General Assembly of the State or by the people of the State in the form of a constitutional amendment or initiated act. In the past the General Assembly of the State has considered new exemptions to the Sales and Use Tax, such as food sales, which, if adopted, would materially reduce Sales and Use Tax receipts. The City has no control over actions of the General Assembly or the people of the State and cannot predict whether changes to the Sales and Use Tax may be made. Accordingly, the City cannot predict with certainty the expected amount of Sales and Use Tax receipts to the be received and, therefore, there can be no assurance that Sales and Use Tax receipts will be sufficient to pay the principal of and interest on the Bonds. DEFINITIONS OF CERTAIN TERMS The following are definitions of certain terms used in this Official Statement: "Account" means an Account established by Article V of the Indenture. "Act" means the Local Government Bond Act of 1985, codified as Arkansas Code Annotated (1998 Repl. & Supp. 2001) Sections 14-164-301 el seq., as from time to time amended. "Additional Bonds" means Bonds in addition to the Series 2002 Bonds which are issued under the provisions of Section 212 of the Indenture. "Amendment 62" means Amendment No. 62 to the Constitution of Arkansas, approved by the voters of the State on November 6, 1984. "Annual Debt Service" means, with respect to all or any particular amount of Bonds or any RLF Loan, as the case may be, the Debt Service for any particular Fiscal Year required to be paid or set aside during such Fiscal Year, less the amount of such payment which is provided from the proceeds of the sale of Bonds or which is drawn under an RLF Loan or from sources other than Sales and Use Tax receipts. "Authorized Representative" means either the Mayor or Administrative Service Director of the City and such additional persons as from time to time may be designated to act on behalf of the City by a Certificate furnished to the Trustee containing the specimen signature thereof and executed on behalf of the City by its Mayor. "Authorizing Ordinance" means Ordinance No. 4389, adopted by the City on May 7, 2002, which authorized the issuance of the Series 2002 Bonds pursuant to the Indenture. "Beneficial Owner" means any Person who acquires beneficial ownership interest in a Bond held by the Securities Depository. In determining the Beneficial Owner of any Bond, the Trustee may rely exclusively upon written representations made and information given to the Trustee by the Securities Depository or its Participants with respect to any Bond held by the Securities Depository in which a beneficial ownership interest is claimed. "Bond Counsel" means any firm of nationally recognized municipal bond counsel selected by the City and acceptable to the Trustee. "Bond Fund" means the fund by that name created and established in the Indenture. "Bonds" mean the Series 2002 Bonds and all Additional Bonds issued by the City pursuant to the Indenture. Except to the extent provided in Section 209 of the Indenture and except for refunding bonds issued under the Indenture, the aggregate principal amount of Bonds and any RLF Loan incurred by the City shall not exceed $125,000,000. "Book -Entry System" means the book -entry system maintained by the Securities Depository and described in the Indenture. "Certificate" means a document signed by an Authorized Representative of the City attesting to or acknowledging the circumstances or other matters therein stated. "City" means the City of Fayetteville, Arkansas, a municipality and political subdivision under the laws of the State of Arkansas. "Closing Date" means, with respect to any series of Bonds, the date upon which there is an exchange of • such series of Bonds for the proceeds representing the purchase price for such series of Bonds by the Original Purchaser or Purchasers thereof. "Code" means the Internal Revenue Code of 1986, as from time to time amended, and applicable regulations issued or proposed thereunder. • "Continuing Disclosure Agreement" means, collectively, each Continuing Disclosure Agreement between the City and the Trustee, dated the date of issuance and delivery of a series of Bonds, as originally executed and as amended from time to time in accordance with the terms thereof. "Costs of Issuance" means all items of expense payable or reimbursable directly or indirectly by the City and related to the authorization, sale and issuance of the Bonds, including, but not limited to, underwriting discounts, fees and expenses, election expenses, publication expenses, expenses of printing, reproducing, filing and recording documents, initial fees and charges of the Trustee and any Paying Agent, fees and expenses for legal, accounting and other professional services, rating fees, costs of securing any credit enhancement for the Bonds, costs of execution, transportation and safekeeping of the Bonds, and other costs, charges and fees incurred in connection with the foregoing. "Costs of Issuance Fund" means the fund by that name created and established in the Indenture. "Debt Service" means, with respect to all or any particular amount of Bonds or any RLF Loan, as the case may be, the total as of any particular date of computation and for any particular period of the scheduled amount of interest and amortization of principal payable on such Bonds and any RLF Loan, excluding amounts scheduled during such period which relate to principal which has been retired before the beginning of such period. "Debt Service Reserve Fund" means the fund by that name created and established in the Indenture. "Election Ordinance" means Ordinance No. 4327, adopted by the City Council on August 7, 2001, pursuant to which there was submitted to the qualified electors of the City the question of the issuance of the Bonds. "Event of Default" means any event of default specified in Section 801 of the Indenture. "Fiscal Year" means the 12 -month period used, at any time, by the City for accounting purposes, which may be the calendar year. "Fund" means a fund established by the Indenture. • "Government Securities" means (i) bonds, notes, certificates of indebtedness, treasury bills or other securities constituting direct obligations of, or obligations on which the full and timely payment of principal and interest is fully and unconditionally guaranteed by, the United States of America (including any such securities issued or held in book -entry form on the books of the Department of Treasury of the United States of America), and (ii) evidences of direct ownership or proportionate or individual interest in future interest or principal payments on specified direct obligations of, or obligations on which the full and timely payment of principal and interest is fully and unconditionally guaranteed by, the United States of America, which obligations are held by a bank or trust company organized and existing under the laws of the United States of America or any state thereof in the capacity of custodian in form and substance satisfactory to the Trustee. "Holder" or "Bondholder" or "owner of the Bonds" means the registered owner of any Bond. "Indenture" means the Trust Indenture dated as of June 1, 2002, between the City and the Trustee, pursuant to which the Bonds are issued, and any amendments and supplements thereto. "Investment Securities" means, if and to the extent the same are at the time legal for investment of Funds and Accounts held under the Indenture: (a) Government Securities; (b) bonds, notes or other obligations of any state of the United States of America or any political subdivision of any state, which at the time of their purchase are rated in either of the two highest rating categories by a nationally recognized Rating Agency; (c) certificates of deposit or time or demand deposits constituting direct obligations of any bank, bank holding company, savings and loan association or trust company organized under the laws of the United States of America or any state thereof (including the Trustee or any of its affiliates), except that • investments may be made only in certificates of deposit or time or demand deposits which are: (1) insured by the Federal Deposit Insurance Corporation, or any other similar United States Government deposit insurance program then in existence; or 19 (2) continuously and fully secured by Government Securities, which have a market value, exclusive of accrued interest, at all times at least equal to the principal amount of such certificates of deposit or time or demand deposits; (d) short term discount obligations of the Federal National Mortgage Association and the Government National Mortgage Association; and (e) money market mutual funds (1) that invest in Government Securities or that are registered with the federal Securities and Exchange Commission (SEC), meeting the requirements of Rule 2a-7 under the Investment Company Act of 1940, and (2) that are rated in either of the two highest categories by a nationally recognized Rating Agency. "Mayor" means the person holding the office and performing the duties of the Mayor of the City. "Original Purchaser" means the first purchaser(s) of a series of Bonds from the City. "Outstanding" means, as of any date of computation, Bonds theretofore or thereupon being delivered under the Indenture, except: (a) Bonds cancelled at or prior to such date or delivered to or acquired by the Trustee at or prior to such date for cancellation; (b) Bonds deemed to be paid in accordance with Article VII of the Indenture; and (c) Bonds in lieu of or in exchange or substitution for which other Bonds shall have been authenticated and delivered pursuant to the Indenture. "Participants" means those financial institutions for whom the Securities Depository effects book -entry transfers and pledges of securities deposited with the Securities Depository in the Book -Entry System, as such listing of Participants exists at the time of such reference. "Paying Agent" means any bank or trust company named by the City as the place at which the principal of and premium, if any, and interest on the Bonds are payable. "Person" means any natural person, firm, association, corporation, limited liability company, partnership, • joint stock company, joint venture, trust, unincorporated organization or firm, or a government or any agency or political subdivision thereof or other public body.. "Project" means the acquisition, construction, reconstruction, extension, improving and equipping of System wastewater treatment plants, sewerage and related facilities. "Project Costs" means, to the extent permitted by the Act or other applicable laws, with respect to the Project, all costs of planning, designing, purchasing, acquiring, constructing, improving, enlarging, extending, repairing, financing and placing in operation, including obtaining governmental approvals, certificates, permits and licenses with respect thereto, heretofore or hereafter paid or incurred by or on behalf of the City and which shall include, but shall not be limited to: (a) interest accruing in whole or in part on the Bonds prior to and during construction of the Project, including all amounts required by the Indenture to be paid from the proceeds of the Bonds into the Bond Fund; (b) preliminary investigation and development costs, engineering fees, contractors' fees, labor costs, the cost of materials, equipment, utility services and supplies, costs of obtaining permits, licenses and approvals, costs of real property, insurance premiums, legal and financing fees and costs, administrative and general costs, and all other costs properly allocable to the acquisition, construction and equipping of the Project and placing the same in operation; (c) all costs relating to injury and damage claims arising out of the acquisition, construction or equipping of the Project; (d) all other costs incurred in connection with, and properly allocable to, the acquisition, construction and equipping of the Project; and (e) amounts to pay or reimburse the City or any City fund for expenses of the City incident • and properly allocable to such planning, designing, purchasing, acquiring, constructing, improving, enlarging, extending, repairing, financing and placing in operation of the Project. 20 "Project Fund" means the fund by that name created and established in the Indenture. "Qualified Engineer" means an independent consulting engineer or firm of independent consulting • engineers not in the regular employ of the City. "RLF Loan" means any loan to the City under the Arkansas Soil and Water Conservation Commission Revolving Loan Fund Program, which loan is to be secured by Sales and Use Tax receipts on a parity basis with the Bonds. Any RLF Loan may, but need not, be structured in the form of an Additional Bond or Additional Bonds issued hereunder. "Rating Agency" means Moody's Investors Service, Standard & Poor's Ratings Services, a Division of The McGraw-Hill Companies, Inc., or Fitch, Inc., and their respective successors and assigns. If any such corporation ceases to act as a securities rating agency, the City may appoint any nationally recognized securities rating agency as a replacement. "Rebate Fund" means the fund by that name created and established in the Indenture. "Record Date" means the fifteenth day of the calendar month preceding the calendar month in which an interest payment date on the Bonds occurs. "Redemption Fund" means the fund by that name established in the Indenture. "Requisition" means a written requisition of the City, consecutively numbered, signed by an Authorized Representative including, without limitation, the following with respect to each payment requested: (i) the name of the Person or party to whom payment is to be made and the purpose of the payment, (ii) the amount to be paid thereunder; (iii) that such amount has not been previously paid by the City and is justly due and owing to the Person(s) named therein as a proper payment or reimbursement of a Project Cost; and (iv) that no Event of Default exists under the Indenture and that, to the knowledge of the • Authorized Representative, no event has occurred and continues which with notice or lapse of time or both would constitute an Event of Default under the Indenture. "Reserve Requirement" means, at any particular time, an amount equal to 5% of the aggregate Outstanding principal amount of Outstanding Bonds of all series, except as may otherwise be provided in Section 508 of the Indenture with respect to RLF Loans. "Revenue Fund" means the fund by that name created and established in the Indenture. "Sales and Use Tax" means the three-quarters of one percent (0.75%) city-wide sales and use tax authorized under the Act which has been levied within the City pursuant to the Election Ordinance, the collection of which tax commenced on April 1, 2002, as approved by the voters of the City. Receipts of the Sales and Use Tax are pledged to the payment of Debt Service on the Bonds. "Securities Depository" means The Depository Trust Company, New York, New York, or its nominee, and its successors and assigns. "Series 2002 Bonds" means the City's Sales and Use Tax Capital Improvement Bonds, Series 2002, issued under and secured by the Indenture in the aggregate principal amount of $25,000,000'. "State" means the State of Arkansas. "Supplemental Indenture" means any indenture supplemental to or amendatory of the Indenture. "Surplus Tax Receipts" shall have the meaning ascribed to such term in Section 503 of the Indenture. "System" means the City's combined water and sewer utility system. "Tax Regulatory Agreement" means with respect to any series of Bonds, that Tax Regulatory Agreement of the City relating to maintenance of the excludability of interest on such Bonds from gross income for federal income tax purposes, delivered in connection with the issuance of such series of Bonds. • • Preliminary; subject to change. 21 "Trustee" means the banking corporation or association designated as Trustee in the Indenture, and its successor or successors as such Trustee. The original Trustee is Simmons First Trust Company, N.A. "Trust Estate" means the property described in the granting clauses of the Indenture. • SUMMARY OF THE INDENTURE The following statements are brief summaries of certain provisions of the Indenture. The statements do not purport to be complete, and reference is made to the Indenture, copies of which are available for examination at the offices of the Administrative Services Director of the City, for a full statement thereof Funds and Accounts. Receipts of the Sales and Use Tax are pledged by the Indenture to the payment of the principal of and interest on the Bonds. The following Funds and Accounts have been established with the Trustee in connection with the Bonds: Funds and Accounts Revenue Fund Bond Fund, and a Principal Account and an Interest Account therein Debt Service Reserve Fund Redemption Fund Project Fund Cost of Issuance Fund Rebate Fund Application of Sales and Use Receipts. The application of Sales and Use Tax receipts is as follows: (a) Revenue Fund. All Sales and Use Tax receipts shall, as and when received, be deposited into the Revenue Fund. All moneys at any time in the Revenue Fund shall be applied on a monthly basis to the payment of • Debt Service on the Bonds and any RLF Loans, to the maintenance of the Debt Service Reserve Fund, to the payment of any arbitrage rebate due under Section 148(1) of the Code, to the payment of fees and expenses of the Trustee and any Paying Agent, and to the early redemption of the Bonds, at the times and in the amounts set forth as follows: (b) Bond Fund. Upon receipt, but in no event later than the last day of each month in which Sales and Use Tax receipts are deposited in the Revenue Fund, commencing no later than June 30, 2002, there shall be transferred from the Revenue Fund (i) into the Interest Account of the Bond Fund, an amount equal to 1/6 of the interest on the Bonds due on the next interest payment date and an amount equal to the interest component of any monthly payment prescribed with respect to any RLF Loan, and (ii) into the Principal Account of the Bond Fund, an amount equal to 1/12 of the principal on the Bonds due on the next principal payment date and an amount equal to the principal component of any monthly payment prescribed with respect to any RLF Loan. Moneys in the Bond Fund shall be used solely for the purpose of paying Annual Debt Service on the Bonds or RLF Loans or for redemption of the Bonds, as provided in the Indenture. The Trustee shall withdraw from the Bond Fund, on the date of any principal or interest payment, an amount equal to such payment for the sole purpose of paying the same. If Sales and Use Tax receipts in the Revenue Fund are insufficient to make the required monthly payment into the Bond Fund, the amount of any such deficiency in the payment made shall be added to the amount otherwise required to be paid into the Bond Fund not later than last day of the next succeeding month. When the moneys held in the Revenue Fund, the Bond Fund, the Debt Service Reserve Fund and the Redemption Fund shall be and remain sufficient to pay in full the principal of and interest on all Bonds and RLF Loans then Outstanding in accordance with the Indenture, together with the required fees and expenses to be paid or reimbursed to the Trustee and any Paying Agent, the City shall have no further obligation to make payments into such Funds and the levy of the Sales and Use Tax shall cease. (c) Debt Service Reserve Fund. See the caption "SECURITY FOR THE BONDS — Debt Service Reserve" herein. (d) Redemption Fund. After making the required deposits into the Bond Fund, into the Debt Service • Reserve Fund, and into the Rebate Fund, and after paying the fees and expenses of the Trustee and any Paying 22 Agent, there shall be paid from the Revenue Fund into the Redemption Fund all remaining moneys in the Revenue Fund (the "Surplus Tax Receipts"). Moneys in the Redemption Fund shall be transferred to the Principal Account of • the Bond Fund at such times as may be necessary to effectuate redemptions of the Bonds on the first available redemption date. So long as the Series 2002 Bonds are Outstanding, all Surplus Tax Receipts shall be applied to the redemption of the Series 2002 Bonds prior to maturity. See the captions "THE SERIES 2002 BONDS — Redemption" and "PROJECTED MANDATORY REDEMPTIONS" herein. (e) Project Fund. A portion of the proceeds of the Series 2002 Bonds shall be deposited in the Project Fund. See the caption "ESTIMATED SOURCES AND USES OF FUNDS" herein. Amounts in the Project Fund shall be expended only for the payment of Project Costs upon the submission of Requisitions by the City to the Trustee. The Trustee shall only make payments from the Project Fund pursuant to and in accordance with Requisitions. Within ninety (90) days following completion of the portion of the Project being financed with a particular series of Bonds, the City shall deliver to the Trustee its Certificate stating that the applicable portion of the Project is complete and the Trustee shall transfer the remaining moneys in the Project Fund relating to such series of Bonds (save and except moneys needed to satisfy unpaid Project Costs) to the Redemption Fund for application to the retirement of Bonds. See the caption "THE SERIES 2002 Bonds — Redemption" herein. (1) Cost of Issuance Fund. A portion of the proceeds of the Series 2002 Bonds shall be deposited to the credit of the Cost of Issuance Fund. The Trustee shall pay those Costs of Issuance as directed by the City pursuant to a Certificate delivered on a Closing Date. After all Costs of Issuance have been paid with respect to a series of Bonds, any remaining moneys in the Cost of Issuance Fund shall be transferred to the Interest Account of the Bond Fund. (g) Rebate Fund. The Trustee shall establish and maintain, separate and apart from any other Funds and Accounts established and maintained under the Indenture, the Rebate Fund, which Fund is not pledged to the payment of any Bonds or RLF Loan. Subject to transfer to the United States in payment of any arbitrage rebate due under Section 148(f) of the Code, all moneys at any time deposited in the Rebate Fund shall be held by the Trustee in trust, and neither the City nor the Owner of any Bond shall have any rights in or claim to such money. Any amounts remaining in the Rebate Fund after payment in full of the rebate amount owing to the United States, within sixty (60) days after the date on which the last Bond is redeemed, shall be transferred to the Revenue Fund. • Investment of Funds. At the direction of the City or absent such direction, the Trustee shall invest moneys in Funds or Accounts held by the Trustee in Investment Securities with maturity or redemption dates consistent with the times at which said moneys will be required for the purposes provided in the Indenture; provided, however, the stated maturity dates of Investment Securities of Debt Service Reserve Fund moneys shall not exceed five years from the date of investment therein. Moneys in separate Funds or Accounts may be commingled for the purpose of investment. Obligations purchased as an investment of moneys in any Fund or Account created by the Indenture shall be deemed at all times to be a part of such Fund or Account, and any income or loss due to an investment thereof shall be charged to the respective Fund or Account for which the investment was made except as otherwise provided in the Indenture. Investments in any Fund or Account shall be evaluated at least annually by the Trustee. For the purpose of determining the amount in any Fund or Account, the City and the Trustee shall value all Investment Securities credited to such Fund or Account at the price at which such Investment Securities are redeemable by the Holders or owners thereof at their option if so redeemable, or, if not so redeemable, at the lesser of (i) the cost of such Investment Securities minus the amortization of any premium or plus the amortization of any discount thereon and (ii) the market value of such Investment Securities, provided that Investment Securities credited to the Debt Service Reserve Fund, if not so redeemable, shall be valued at the cost thereof minus the amortization of any premium or plus the amortization of any discount thereon. Valuation of Funds and Accounts. In determining the value of any Fund or Account held by the Trustee under the Indenture, the Trustee shall credit Investment Securities at the fair market value thereof, as determined by the Trustee by any method selected by the Trustee in its reasonable discretion. No less frequently than annually, and in any event within thirty (30) days prior to the end of each Fiscal Year, the Trustee shall determine the value of each Fund and Account held under the Indenture and shall report such determination to the City. The Trustee shall sell or present for redemption any Investment Securities as necessary in order to provide • money for the purpose of making any payment required under the Indenture, and the Trustee shall not be liable for any loss resulting from any such sale. 23 Responsibility of Trustee. The Trustee shall not be responsible or liable for any loss suffered in connection with any investment of moneys made by it at the direction of the City. Instruments of Further Assurance. At any and all times the City shall, so far as it may be authorized by law, pass, make, do, execute, acknowledge and deliver, all and every such further resolutions, ordinances, acts, deeds, conveyances, assignments, transfers and assurances as may be necessary or desirable for the better assuring, conveying, granting, pledging, assigning and confirming of all and singular the receipts from the Sales and Use Tax and all other moneys pledged or assigned by the Indenture, or intended so to be, or which the City may become bound to pledge or assign. Tax Covenants. The City shall not use or permit the use of any Bond proceeds or any other funds of the City, directly or indirectly, in any manner, and will not take or permit to be taken any other action or actions which would adversely effect the exclusion of interest on any Bond from gross income for federal income tax purposes. No part of the proceeds of the Bonds shall at any time be used, directly or indirectly, to acquire securities or obligations the acquisition of which would cause any of such Bonds to be an "arbitrage bond" as defined in Sections 148(a) and (b) of the Code. The City agrees that so long as any of the Bonds remain Outstanding, it will comply with the provisions of each applicable Tax Regulatory Agreement. Drawdowns Under RLF Loans. The City covenants and agrees not to requisition amounts available under any RLF Loan unless the Sales and Use Tax receipts during the Fiscal Year immediately preceding the Fiscal Year in which such Requisition is to occur were not less than 125% of the maximum Annual Debt Service on all Outstanding Bonds and any RLF Loan following such Requisition. Defeasance. Any Bond shall be deemed to be paid within the meaning of the Indenture when payment of the principal of and premium, if any, and interest on such Bond (whether at maturity or upon redemption as provided in the Indenture, or otherwise), either (i) shall have been made or caused to be made in accordance with the terms thereof, or (ii) shall have been provided for by irrevocably depositing with the Trustee, in trust and irrevocably set aside exclusively for such payment, (1) moneys sufficient to make such payment or (2) Government Securities (provided that such deposit will not affect the tax-exempt status of the interest on any of the Bonds or cause any of the Bonds to be classified as "arbitrage bonds" within the meaning of Section 148(a) of the Code, as reflected in an opinion of Bond Counsel delivered to the Trustee), maturing as to principal and interest in such amounts and at such times as will provide sufficient moneys to make such payment, and all necessary and proper fees, compensation and • expenses of the Trustee and any Paying Agent pertaining to the Bonds with respect to which such deposit is made shall have been paid or the payment thereof provided for to the satisfaction of the Trustee and any said Paying Agent. Events of Default. Each of the following events shall constitute and is referred to in the Indenture as an "Event of Default": (a) Default in the due and punctual payment of any interest on any Bond; (b) Default in the due and punctual payment of the principal of or premium, if any, on any Bond, whether at the stated maturity thereof, or upon proceedings for redemption thereof, or upon the maturity thereof by declaration; (c) Default in the payment of any other amount required to be paid under the Indenture or the performance or observance of any other of the covenants, agreements or conditions contained in the Indenture, or in the Bonds issued under the Indenture, and continuance thereof for a period of sixty (60) days after written notice specifying such failure and requesting that it be remedied, shall have been given to the City by the Trustee, which may give such notice in its discretion and shall give such notice at the written request of Holders of not less than fifty-one percent (51%) in aggregate principal amount of the Bonds then Outstanding, unless the Trustee, or the Trustee and Holders of an aggregate principal amount of Bonds not less than the aggregate principal amount of Bonds the Holders of which requested such notice, as the case may be, shall agree in writing to an extension of such period prior to its expiration; provided, however, if the failure stated in the notice cannot be corrected within the applicable period, the Trustee will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by the City within such period and is being diligently pursued; (d) The filing of a petition in bankruptcy by or against the City under the United States Bankruptcy Code or the commencement of a proceeding by or against the City under any other law concerning insolvency, reorganization or bankruptcy. And • 24 (e) If the State has limited or altered the rights of the City pursuant to the Act, as in force on the date of the Indenture, to fulfill the terms of any agreements made with the Trustee or the Bondholders or in any way • impaired the rights and remedies of the Trustee or the Bondholders while any Bonds are Outstanding. The term "default" as used in clauses (a), (b) and (c) above shall mean default by the City in the performance or observance of any of the covenants, agreements or conditions on its part contained in the Indenture, or in the Bonds Outstanding thereunder, exclusive of any period of grace required to constitute a default an "Event of Default" as described above. Acceleration. Upon the occurrence of an Event of Default, the Trustee may, and upon the written request of the Holders of not less than 51% in aggregate principal amount of Bonds Outstanding shall, by notice in writing delivered to the City, declare the principal of all Bonds then Outstanding, together with any premium and the interest accrued thereon, immediately due and payable, and such principal and interest shall thereupon become and be immediately due and payable. Other Remedies; Rights of Bondholders. Upon the occurrence of an Event of Default, the Trustee may, as an alternative, pursue any available remedy by suit at law or in equity, including, without limitation, mandamus to enforce the payment of the principal of and premium, if any, and interest on the Bonds then Outstanding. If an Event of Default shall have occurred, and if it shall have been requested so to do by the Holders of 51% in aggregate principal amount of Bonds Outstanding and if it shall have been indemnified as provided in the Indenture, the Trustee shall be obligated to exercise such one or more of the rights and powers conferred upon it by the Indenture as the Trustee, being advised by counsel, shall deem most expedient in the interests of the Bondholders. No remedy by the terms of the 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 under the Indenture 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 under the Indenture, whether by the Trustee or by the Bondholders, shall extend to or shall affect any subsequent default or Event of Default or shall impair any rights or remedies consequent thereon. Rights and Remedies of Bondholders. No Holder of any Bond shall have any right to institute any suit, action or proceeding in equity or at law for the enforcement of the Indenture or for the execution of any trust thereof or for the appointment of a receiver or any other remedy thereunder, unless a default has occurred of which the Trustee has been notified as provided in the Indenture, or of which by the Indenture it is deemed to have notice, nor unless such default shall have become an Event of Default and the Holders of not less than 51% in aggregate principal amount of Bonds Outstanding shall have made written request to the Trustee and shall have offered it reasonable opportunity either to proceed to exercise the powers 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 the Indenture nor unless the Trustee shall thereafter fail or refuse to exercise the powers granted, or to institute such action, suit, or proceeding in its own name; and such notification, request and offer of indemnity are declared in every such case at the option of the Trustee to be conditions precedent to the execution of the powers and trusts of the Indenture, and to any action or cause of action for the enforcement of the Indenture or for the appointment of a receiver or for any other remedy thereunder; it being understood and intended that no one or more Holders of the Bonds shall have any right in any manner whatsoever to affect, disturb or prejudice the lien of the Indenture by action of the Holder or Holders or to enforce any right under the Indenture except in the manner therein provided, and that all proceedings at law or in equity shall be instituted, held and maintained in the manner therein provided for the equal benefit of the Holders of all Bonds Outstanding thereunder. Nothing in the Indenture contained shall, however, affect or impair the right of any Bondholders to enforce the payment of the principal of and premium, if any, and interest on any Bonds at and after the maturity thereof, or the obligation of the City to pay the principal of and premium, if any, and interest on each of the Bonds issued under the Indenture to the respective Holders thereof at the time and place in • said Bonds expressed. Supplemental Indentures Not Requiring Consent of Bondholders. The City and the Trustee may, from time to time and at any time, without the consent of or notice to the Bondholders, enter into Supplemental Indentures as follows: 25 (a) to cure any formal defect, omission, inconsistency or ambiguity in the Indenture; (b) to grant to or confer or impose upon the Trustee for the benefit of the Bondholders any additional rights, remedies, powers, authority, security, liabilities or duties which may lawfully be granted, conferred or • imposed and which are not contrary to or inconsistent with the Indenture as theretofore in effect, provided that no such additional liabilities or duties shall be imposed upon the Trustee without its consent; (c) to add to the covenants and agreements of, and limitations and restrictions upon, the City in the Indenture other covenants, agreements, limitations and restrictions to be observed by the City which are not contrary to or inconsistent with the Indenture as theretofore in effect; (d) to confirm, as further assurance, any pledge under, and the subjection to any claim, lien or pledge created or to be created by, the Indenture, of the Trust Estate or of any other moneys, securities or funds; (e) to comply with the requirements of the Trust Indenture Act of 1939, as from time to time amended; (f) to authorize the issuance and sale of one or more series of Additional Bonds; (g) to make such additions, deletions or modifications as may be necessary to assure compliance with Section 148(f) of the Code relating to required rebate to the United States or otherwise as may be necessary to assure exemption from federal income taxation of interest on the Bonds; or (h) to modify, alter, amend or supplement the Indenture in any other respect which is not materially adverse to the Bondholders and which does not involve a change described in clause (a), (b), (c), (d), (e) or (f) below and which, in the judgment of the Trustee, is not to the prejudice of the Trustee. Supplemental Indentures Requiring Consent of Bondholders. Subject to the terms and provisions contained in this paragraph, and not otherwise, the Holders of not less than 2/3 in aggregate principal amount of the Bonds then Outstanding shall have the right, from time to time, anything contained in the Indenture to the contrary notwithstanding, to consent to and approve the execution by the City and the Trustee of such indenture or indentures supplemental to the Indenture 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 the Indenture or in any Supplemental Indenture; provided, however, that nothing contained in the Indenture shall permit or be construed as permitting (a) an extension of the maturity (or mandatory redemption date) of the principal of or the interest on any Bond issued thereunder, or (b) a reduction in the principal amount of or redemption premium or rate of interest on any Bond issued thereunder, or (c) the creation of any lien on the Trust Estate or any part thereof, except as expressly permitted in the 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 Indenture, or (f) depriving the Holder of any Bond then Outstanding of the lien created on the Trust Estate. If, at any time the City shall request the Trustee to enter into any Supplemental Indenture for any of the purposes described above, the Trustee shall, at the expense of the City, cause notice of the proposed execution of such Supplemental Indenture to be mailed by first class mail to each registered owner of the Bonds. 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 Bondholders. The Trustee shall not, however, be subject to any liability to any Bondholder by reason of its failure to mail such notice, and any such failure shall not affect the validity of such Supplemental Indenture when consented to and approved as provided above. If the Holders of not less than 2/3 in aggregate principal amount of the Bonds Outstanding at the time of the execution of any such Supplemental Indenture shall have consented to and approved the execution thereof, 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. SUMMARY OF THE CONTINUING DISCLOSURE AGREEMENT The City has entered into an undertaking in the form of the Continuing Disclosure Agreement as required by the Indenture for the benefit of the Beneficial Owners of the Series 2002 Bonds to cause certain financial information to be sent to certain information repositories annually and to cause notice to be sent to such information • repositories of certain specified events, pursuant to the requirements of Section (b)(5)(i) of Rule 15c2-12 of the Securities Exchange Act of 1934, as amended (the "Rule"). The City has not failed to comply with any previous undertaking pursuant to the Rule. 26 The Continuing Disclosure Agreement contains the following covenants and provisions: (a) The City shall, not later than August I of each year, commencing August I, 2002, provide to each • Repository and the Trustee its Annual Financial Information consistent with the requirements of subsection (d) below. (b) If, on the date specified in subsection (a) above for providing the Annual Financial Information to Repositories, the Trustee has not received a copy of the Annual Financial Information, the Trustee shall contact the Disclosure Representative to determine if the City is in compliance with subsection (a). (c) If the Trustee is unable to verify that the Annual Financial Information has been provided to the Repositories by the date required within subsection (a), the Trustee shall file a notice to such effect with the Repositories and the MSRB. (d) The City's Annual Financial Information shall contain or incorporate by reference the following: (i) Receipts of the Sales and Use Tax for the latest Fiscal Year and for the four previous Fiscal Years, if available. . (ii) The City's audited financial statements for the prior Fiscal Year, prepared in accordance with accounting principles generally accepted in the United States ("GAAP") as such principles are modified by the governmental accounting standards promulgated by the Government Accounting Standards Board ("GASB") and by mandated principles of the State of Arkansas, if any, as in effect from time to time, which financial statements have been audited by such auditor as shall then be required or permitted by the laws of the State of Arkansas. If the City's audited financial statements are not available by the time its Annual Financial Information is required to be filed pursuant to subsection (a) above, the Annual Financial Information shall contain the unaudited financial statements of the City, and the audited financial statements shall be filed in the same manner as the Annual Financial Information when they become available. (e) The City has agreed to instruct the Trustee to deliver to each National Repository, or the MSRB and the Arkansas State Repository, notice of the occurrence of any of the following Specified Events, if deemed • material: (i) Principal and interest payment delinquencies; (ii) Non-payment related defaults; (iii) Unscheduled draws on any debt service reserve reflecting financial difficulties; (iv) Unscheduled draws on any credit enhancement reflecting financial difficulties; (v) Substitution of any credit or liquidity providers, or their failure to perform; (vi) Adverse tax opinions or events affecting the tax-exempt status of the Series 2002 Bonds; (vii) Modifications to rights of Bondowners; (viii) Bond calls; (ix) Defeasances; (x) Release, substitution or sale of property securing payment of the Series 2002 Bonds; or (xi) Rating changes. (f) The City has agreed that the foregoing undertakings shall be for the benefit of the Beneficial Owners of the Series 2002 Bonds, and shall be enforceable by any Beneficial Owner of the Series 2002 Bonds in an action for specific performance against the City. (g) The continuing obligation of the City to provide Annual Financial Information and notice of the occurrence of Specified Events, if material, will terminate if the City is no longer an "obligated person" within the meaning of the Rule or upon the maturity, defeasance, prior redemption or payment in full of the Series 2002 Bonds. The City and the Trustee may amend the Continuing Disclosure Agreement, and any provision of the Continuing • Disclosure Agreement may be waived, if such amendment or waiver is supported by an opinion of counsel, reasonably acceptable to each of the City and the Trustee, to the effect that such amendment or waiver would not, in and of itself, cause the undertakings under the Continuing Disclosure Agreement to violate the Rule, taking into account any subsequent change in or official interpretation of the Rule. 27 (h) The following terms used under this caption shall have the meanings set forth below: "Annual Financial Information" means the annual financial information to be provided by the City of the • type described in the Continuing Disclosure Agreement. "Arkansas State Repository" means any public or private repository or entity as may be designated by the State of Arkansas as a state repository for purposes of the Rule and recognized as such by the SEC. As of the date of the Continuing Disclosure Agreement, there is no Arkansas State Repository. "Beneficial Owner" means any Person which has the power, directly or indirectly, to vote or consent with respect to, or to dispose of ownership of, any Series 2002 Bonds, including Persons holding Series 2002 Bonds through nominees or depositories. "Disclosure Representative" means the City's Administrative Services Director or his or her designee, or such other officer or employee as the City shall designate in writing to the Trustee from time to time. "Fiscal Year" means the 12 -month period used, at any time, by the City for accounting purposes, which may be the calendar year. The City's fiscal year presently ends on December 31. "MSRB" means the Municipal Securities Rulemaking Board. "National Repository" means any nationally recognized municipal securities information repository for purposes of the Rule. "Participating Underwriter" means Stephens Inc. "Repository" means each National Repository and the Arkansas State Repository "Specified Events" means each of the events with respect to the Series 2002 Bonds listed in subsection (e) above. (i) A failure by the City to comply with the provisions of the Continuing Disclosure Agreement will not constitute an Event of Default under the Indenture, and the sole remedy in such an event shall be an action to compel specific performance. Nevertheless, such a failure to comply must be reported in accordance with the Rule and must be considered by any broker, dealer or municipal securities dealer before recommending the purchase or sale of the Series 2002 Bonds in the secondary market. Consequently, such a failure may adversely affect the transferability and liquidity of the Series 2002 Bonds. UNDERWRITING Under a bond purchase agreement entered into by and among the City and Stephens Inc. (the "Underwriter"), the Series 2002 Bonds are being purchased at a purchase price of $ (representing the stated principal amount of the Series 2002 Bonds less an underwriting discount of $_ ) plus accrued interest from June 1, 2002 to the date of delivery of the Series 2002 Bonds. The bond purchase agreement provides that the Underwriter will purchase all of the Series 2002 Bonds if any are purchased. The obligation of the Underwriter to accept delivery of the Series 2002 Bonds is subject to various conditions contained in the bond purchase agreement, including the absence of pending or threatened litigation questioning the validity of the Series 2002 Bonds or any proceedings in connection with the issuance thereof, and the absence of material adverse changes in the financial condition of the City. The Underwriter intends to offer the Series 2002 Bonds to the public initially at the offering prices as set forth on the cover page of this Official Statement, which offering prices (or bond yields establishing such offering prices) may subsequently change without any requirement of prior notice. The Underwriter reserves the right to join with dealers and other underwriters in offering the Series 2002 Bonds to the public, and may offer the Series 2002 Bonds to such dealers and other underwriters at a price below the public offering price. The City has agreed to indemnify the Underwriter against certain civil liabilities in connection with the offering and sale of the Series 2002 Bonds, including certain liabilities under federal securities laws. Stephens Inc. has served the City in the capacity of a financial advisor in connection with the financing of the Project. For the purpose of facilitating a negotiated bond financing or financings to finance a portion of the cost of the Project, the City and Stephens Inc. have amended their financial advisory agreement to limit the scope of the • agreement solely to the portion of the financing of the Project to be provided by an RLF Loan and to exclude from the scope of the agreement any financial advisory services relating to the Series 2002 Bonds or any other bond financing of the Project. The City and Stephens Inc. acknowledge that a conflict of interest could arise from the 28 change of the role of Stephens Inc. from financial advisor to Underwriter. Stephens Inc. will receive compensation for its services as Underwriter in an amount equal to the underwriting discount, as set forth in the second preceding • paragraph. TAX EXEMPTION Federal Income Taxes. In the opinion of Kutak Rock LLP, Bond Counsel, under existing law, the interest on the Series 2002 Bonds is excludable from the gross income of the owners thereof for federal income tax purposes and is not an item of tax preference for purposes of the federal alternative minimum tax imposed on individuals and corporations; it should be noted, however, that for purposes of computing the alternative minimum tax imposed on corporations (as defined for federal income tax purposes), such interest is taken into account in determining adjusted current earnings and profits. The opinions set forth in the preceding sentence are subject to the condition that the City comply with all requirements of the Code that must be satisfied subsequent to the issuance of the Series 2002 Bonds in order that the interest thereon be, or continue to be, excludable from gross income for federal income tax purposes. The City has covenanted to comply with each such requirement. Failure to comply with certain of such requirements may cause the inclusion of interest on the Series 2002 Bonds in gross income for federal income tax purposes to be retroactive to the date of issuance of the Series 2002 Bonds. Bond Counsel expresses no opinion regarding other federal tax consequences arising with respect to the Series 2002 Bonds. Prospective purchasers of the Series 2002 Bonds should be aware that ownership of tax-exempt obligations may result in collateral federal income tax consequences to certain taxpayers, including, without limitation, financial institutions, property and casualty insurance companies, certain foreign corporations doing business in the United States, certain Subchapter S corporations with excess passive income, individual recipients of Social Security or Railroad Retirement benefits and taxpayers who may be deemed to have incurred or continued indebtedness to purchase or carry tax-exempt obligations. Prospective purchasers of the Series 2002 Bonds should consult their tax advisors as to applicability of any such collateral consequences. State Taxes. Bond Counsel is of the opinion that, under existing law, the interest on the Series 2002 Bonds is exempt from all state, county and municipal taxes in the State of Arkansas. 0 ]RATING Standard & Poor's Ratings Services, a Division of The McGraw-Hill Companies, Inc. ("S&P"), has given the Series 2002 Bonds the rating of "AA-". Such rating reflects only the view of S&P at the time such rating was given. An explanation of the significance of the rating may be obtained from S&P. There is no assurance that such rating will continue for any given period of time or that the rating will not be revised downward or withdrawn entirely by S&P if in its judgment circumstances so warrant. Any downward revision or withdrawal of the rating may have an adverse effect on the market price of the Series 2002 Bonds. Neither the City nor the Underwriter have undertaken any responsibility subsequent to the issuance of the Series 2002 Bonds to assure the maintenance of the rating or to oppose any revision or withdrawal of the rating. No application has been made to any Rating Agency other than S&P for a rating on the Series 2002 Bonds. LEGAL MATTERS Legal Opinions. Legal matters incident to the authorization and issuance of the Series 2002 Bonds are subject to the unqualified approving opinion of Kutak Rock LLP, Little Rock, Arkansas, Bond Counsel, a copy of whose approving opinion will be delivered with the Series 2002 Bonds and a form of which is attached hereto as Appendix A. Certain legal matters will be passed upon for the City by its counsel, Kit Williams, Esq., City Attorney. Litigation. There is no litigation pending seeking to restrain or enjoin the issuance or delivery of the Series 2002 Bonds or questioning or affecting the legality of the Series 2002 Bonds or the proceedings and authority under which the Series 2002 Bonds are to be issued, or questioning the right of the City to issue the Series 2002 Bonds. Except as set forth in the following paragraph, there is no action, suit or proceeding known to be pending or threatened, restraining or enjoining the City in any way which could have a material adverse effect on the City or its • financial affairs. The City is presently a defendant or co-defendant in two separate actions where the amount of damages sought exceeds $50,000. In one of these cases, the City has prevailed at the trial court level with a summary 29 judgment. This case is currently on appeal. In the second case, a motion to dismiss filed by the City and other defendants is pending. Counsel for the City is actively defending each of these proceedings, and as of the date of this Official Statement, the City believes the likelihood of unfavorable outcomes is remote. Further, the City does • not know of any fact or set of facts from which the liability might arise which individually or collectively would materially affect the financial position of the City. MISCELLANEOUS Any statements made in this Official Statement involving matters of opinion or of estimates, whether or not so expressly stated, are set forth as such and not as representations of fact, and no representation is made that any of the estimates will be realized. This Official Statement is not to be construed as a contract or agreement between the City and the purchasers or owners of any of the Series 2002 Bonds. ACCURACY AND COMPLETENESS OF OFFICIAL STATEMENT The information contained in this Official Statement has been taken from sources considered to be reliable, but is not guaranteed. To the best of the knowledge of the City, this Official Statement does not include any untrue statement of a material fact, nor does it omit the statement of any material fact required to be stated herein, or necessary to make the statements herein, in light of the circumstances under which they were made, not misleading. The execution and delivery of this Official Statement has been duly authorized by the City of Fayetteville, Arkansas. CITY OF FAYETTEVILLE, ARKANSAS Mayor 0 • 30 APPENDIX A Proposed Form of Bond Counsel Opinion Kutak Rock LLP, Bond Counsel, will render an opinion with respect to the Series 2002 Bonds, dated the date of issuance and delivery thereof, in substantially the following form: June ,2002 City of Fayetteville, Arkansas Fayetteville, Arkansas Simmons First Trust Company, N.A., as Trustee Little Rock, Arkansas Stephens Inc. Little Rock, Arkansas $25,000,000* City of Fayetteville, Arkansas Sales and Use Tax Capital Improvement Bonds Series 2002 Ladies and Gentlemen: We have acted as bond counsel in connection with the issuance and sale by the City of Fayetteville, • Arkansas (the "City"), a political subdivision of the State of Arkansas, of its $25,000,000* Sales and Use Tax Capital Improvement Bonds, Series 2002 (the "Bonds"). The Bonds are being issued pursuant to the provisions of the Constitution and laws of the State of Arkansas, including, particularly, Amendment 62 and Arkansas Code Annotated (1998 Repl. & Supp. 2001) §§14- 164-301 et seq. (as from time to time amended, the "Act"), pursuant to Ordinance No. 4389 of the City, duly adopted and approved on May 7, 2002 (the "Authorizing Ordinance"), and pursuant to a Trust Indenture dated as of June 1, 2002 (the "Indenture"), by and between the City and Simmons First Trust Company, N.A., as trustee (the "Trustee"). Reference is hereby made to the Indenture and to all indentures supplemental thereto for the provisions, among others, with respect to the conditions for the issuance of parity debt by the City, the nature and extent of the security for the Bonds, the rights, duties and obligations of the City, the Trustee and the Holders of the Bonds, and the terms upon which the Bonds are issued and secured. Reference is made to an opinion of even date herewith of Kit Williams, Esq., City Attorney, a copy of which is on file with the Trustee, with respect, among other matters, to the status and valid existence of the City, the power of the City to adopt the Election Ordinance and the Authorizing Ordinance and to enter into and perform its obligations under the Indenture, the valid adoption of the Election Ordinance and the Authorizing Ordinance, and the due authorization, execution and delivery of the Indenture by the City, and with respect to the Indenture being enforceable upon the City. We have examined the law and such certified proceedings and other papers as we have deemed necessary to render this opinion. As to questions of fact material to our opinion, we have relied upon the representations of the City contained in the Election Ordinance, the Authorizing Ordinance and the Indenture and in the certified proceedings and other certifications of public officials furnished to us, without undertaking to verify the same by independent investigation. • Based upon the foregoing, we are of the opinion, under existing law, as follows: A-1 1. The City is duly created and validly existing as a municipal corporation of the State of Arkansas. Pursuant to the Constitution and laws of the State of Arkansas, including, particularly, Amendment 62 and the Act, the City is empowered to adopt the Election Ordinance and the Authorizing Ordinance, to execute and deliver the Indenture, to perform the agreements on its part contained therein, and to issue the Bonds. 2. The Authorizing Ordinance has been duly adopted by the City and constitutes a valid and binding obligation of the City enforceable upon the City in accordance with its terms. 3. The Indenture has been duly authorized, executed and delivered by the City and is a valid and binding obligation of the City enforceable upon the City in accordance with its terms. 4. The Bonds have been validly authorized, executed, issued and delivered by the City and represent valid and binding special obligations of the City. The principal, premium, if any, and interest on the Bonds shall be payable from, and shall be secured by an assignment and pledge by the City to the Trustee of, the receipts of the Sales and Use Tax (as defined in the Indenture). 5. The Sales and Use Tax receipts have been duly and validly assigned and pledged to the Trustee under the Indenture, and the Indenture creates, as security for the Bonds, a valid security interest in the Sales and Use Tax receipts. Under the laws of the State of Arkansas, including, particularly, Arkansas Code Annotated (2001 Repl.) Section 4-9-109(d)(14), the pledge, assignment and security interest in the Sales and Use Tax receipts securing the Bonds is and shall be prior to any judicial lien hereafter imposed on the Sales and Use Tax receipts to enforce a judgment against the City on a simple contract, and it is not necessary to file a Uniform Commercial Code financing statement in order to perfect a security interest in the Sales and Use Tax receipts. 6. The interest on the Bonds is excluded from gross income for federal income tax purposes and is not an item of tax preference for purposes of the federal alternative minimum tax imposed on individuals and corporations; it should be noted, however, that, for the purpose of computing the alternative minimum tax imposed on corporations (as defined for federal income tax purposes), such interest is taken into account in determining adjusted current earnings for purposes of such alternative minimum tax. The opinions set forth in the preceding sentence are subject to the condition that the City comply with all requirements of the Internal Revenue Code of 1986, as amended, that must be satisfied prior to or subsequent to the issuance of the Bonds in order that the interest thereon be, or continue to be, excluded from gross income for federal income tax purposes. The City has covenanted to comply with each such requirement. Failure to comply with certain of such requirements may cause the inclusion of interest on the Bonds in gross income for federal income tax purposes to be retroactive to the date of issuance of the Bonds. We express no opinion regarding other federal tax consequences arising with respect to the Bonds. 7. The interest on the Bonds is exempt from all state, county and municipal taxes in the State of Arkansas. 8. The Bonds are exempt from registration pursuant to the Securities Act of 1933, as amended, and the Indenture is not required to be qualified under the Trust Indenture Act of 1939, as amended, in connection with the offer and sale of the Bonds. It is to be understood that the rights of the registered owners of the Bonds and the enforceability of the Bonds, the Authorizing Ordinance and the Indenture may be subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights heretofore or hereafter enacted to the extent constitutionally applicable and that their enforcement may also be subject to the exercise of judicial discretion in appropriate cases. Very truly yours, • A-2 OFFICIAL STATEMENT BON ISSUE BOOK -ENTRY ONLY `RATING: S&P: "AA-" In the opinion of Bond Counsel, under existing law and assuming compliance with certain covenants described herein, interest on the Series 2002 Bonds is excluded from gross income of the owners thereof far federal income tax purposes and is not an item of tax preference jar purposes of the federal alternative minimum tax imposed on individuals and corporations; however, with respect to corporations, interest on the Series 2002 Bonds will be taken into account in determining adjusted current earnings and profits for purposes of computing the federal alternative minimum tax. Under existing law, Bond Counsel is of the opinion that the Series 2002 Bonds and the interest thereon are exempt from all state, county and municipal taxes in the State of Arkansas. See the caption "TAX EXEMPTION" herein. Dated: June 1,2002 525,000,000 CITY OF FAYETTEVILLE, ARKANSAS SALES AND USE TAX CAPITAL IMPROVEMENT BONDS SERIES 2002 Due: June 1, as shown below The Sales and Use Tax Capital Improvement Bonds, Series 2002 (the "Series 2002 Bonds"), are being issued by the City of Fayetteville, Arkansas (the "City") for the purpose of financing a portion of the costs of certain improvements to the City's wastewater treatment plants, sewerage and related facilities, funding a debt service reserve, and paying certain expenses in connection with the issuance of the Series 2002 Bonds. See the captions "ESTIMATED SOURCES AND USES OF FUNDS" and "THE PROJECT' herein. The Series 2002 Bonds are issuable only as fully registered bonds and, when issued, will be registered in the name of Cede & Co.. as nominee of The Depository Trust Company ("DTC"), New York, New York, to which principal, premium, if any, and interest payments on the Series 2002 Bonds will be made so long as Cede & Co. is the registered owner of the Series 2002 Bonds. Individual purchases of the Series 2002 Bonds will be made only in book -entry form, in denominations of $5,000 or integral multiples thereof. Individual purchasers ("Beneficial Owners") of Series 2002 Bonds will not receive physical delivery of bond certificates. See the caption "BOOK -ENTRY ONLY SYSTEM" herein. The Series 2002 Bonds shall bear interest from their dated date, payable on June I and December 1 of each year, commencing December I, 2002. All such interest payments shall be payable to the persons in whose name such Series 2002 Bonds are registered on the bond registration books maintained by Simmons First Trust Company, N.A., Pine Bluff, Arkansas as trustee (the "Trustee"), as of the fifteenth day of the calendar month • preceding the calendar month in which the applicable interest payment date falls. Principal of and premium, if any, on the Series 2002 Bonds shall be payable at the principal corporate tmst office of the Trustee. So long as DTC or its nominee is the registered owner of the Series 2002 Bonds, disbursement of such payments to DTC Participants is the responsibility of DTC. and the disbursement of such payments to Beneficial Owners is the responsibility of DTC Participants or Indirect Participants, as more fully described herein. Pursuant to a Trust Indenture dated as of June 1, 2002 (the "Indenture"), between the City and the Trustee, the payment of the principal of, premium, if any. and interest on the Series 2002 Bonds is secured by a pledge of the receipts from a three-quarters of one percent (0.75%) city-wide sales and use tax (the "Sales and Use Tax"). See the caption "SECURITY FOR THE BONDS" herein. Assuming the satisfaction of certain coverage tests, the City has reserved the right to incur up to $100,000.000 of additional indebtedness to be secured on a parity basis with the Series 2002 Bonds. See the caption "THE SERIES 2002 BONDS — Additional Bonds and RLF Loans" herein. The Series 2002 Bonds are subject to mandatory redemption prior to maturity as more fully described herein under the caption "THE SERIES 2002 BONDS - Redemption." The Series 2002 Bonds are special obligations of the City secured by and payable solely from receipts of the Sales and Use Tax. The Series 2002 Bonds do not constitute an indebtedness of the City within the meaning of any constitutional or statutory debt limitation or restriction. The issuance of the Series 2002 Bonds shall not directly, indirectly or contingently obligate the City to levy or pledge any taxes whatsoever or to make any appropriation for the payment of the Series 2002 Bonds, except as described herein with respect to the Sales and Use Tax. MATURITY SCHEDULE Maturity Principal Interest Maturity Principal Interest (June 1 Amount Rate Price (June I) Amount Rate Price 2003 $6,455,000 2.00% 100.280% 2005 $5,275,000 4.00% 103.156% 2004 6,365,000 4.00% 103.198% $6,905,000 3.20% Series 2002 Term Bond due June 1, 2007 — Price: 100.000% (Plus accrued interest) The Series 2002 Bonds are offered when, as and if issued by the City and are subject to the final approving opinion of Kutak Rock LLP, Little Rock, Arkansas, Bond Counsel. Certain matters will be passed upon for the City by its counsel, Kit Williams, Esq., City Attorney. It is expected that the Series 2002 Bonds will be available for delivery in New York, New York, on or about June 20, 2002. Stephens Inc. The date of this Official Statement is June 12.2002. * See the caption 'RATING' herein. CITY OF FAYETTEVILLE, ARKANSAS Issuer City Council Dan Coody, Mayor Bob Davis Lioneld Jordan Don Man Robert Reynolds Kevin Santos Brenda Thiel Cyrus Young Ted Webber, Administrative Services Director Greg Boettcher, Public Works Director Stephen Davis, Budget Manager Heather Woodruff, City Clerk Kit Williams, City Attorney SIMMONS FIRST TRUST COMPANY, N.A. Pine Bluff, Arkansas Trustee and Paying Agent KUTAK ROCK LLP Little Rock, Arkansas Bond Counsel STEPHENSINC. Little Rock, Arkansas Underwriter No dealer, broker, salesman or other person has been authorized by the City or by Stephens Inc. (the "Underwriter") to give any information or to make any representations, other than those contained herein; and, if • given or made, such other information or representations must not be relied upon as having been authorized by either of the foregoing. This Official Statement does not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of any Series 2002 Bonds in any jurisdiction in which such offer is not authorized, or in which the person making such offer, solicitation or sale is not qualified to do so, or to any person to whom it is unlawful to make such offer, solicitation or sale. The information and expressions of opinion contained herein are subject to change without notice, and neither the delivery of this Official Statement nor any sale made hereunder shall, under any circumstances, create any implication that there has been no change in the affairs of the City since the date hereof. THE SERIES 2002 BONDS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR HAS THE TRUST INDENTURE BEEN QUALIFIED UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, IN RELIANCE UPON CERTAIN EXEMPTIONS FROM SUCH REGISTRATION AND QUALIFICATION CONTAINED IN SUCH LAWS. CERTAIN INFORMATION CONTAINED HEREIN HAS BEEN OBTAINED FROM THE CITY, THE DEPOSITORY TRUST COMPANY AND OTHER SOURCES WHICH ARE BELIEVED TO BE RELIABLE. THE UNDERWRITER HAS REVIEWED THE INFORMATION IN THIS OFFICIAL STATEMENT IN ACCORDANCE WITH, AND AS PART OF, ITS RESPONSIBILITIES TO INVESTORS UNDER THE FEDERAL SECURITIES LAWS AS APPLIED TO THE FACTS AND CIRCUMSTANCES OF THIS TRANSACTION, BUT THE UNDERWRITER DOES NOT GUARANTY THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. IN CONNECTION WITH THIS OFFERING, THE UNDERWRITER MAY OVERALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SERIES 2002 BONDS AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME. TABLE OF CONTENTS Page Introductory Statement......................................................................................................................................... • I TheSeries 2002 Bonds......................................................................................................................................... 2 Securityfor the Bonds.......................................................................................................................................... 4 Book -Entry Only System...................................................................................................................................... 5 TheProject............................................................................................................................................................ 6 Historical Sales and Use Tax Collections............................................................................................................. 7 Sourcesand Uses of Funds................................................................................................................................... 8 DebtService Requirements.................................................................................................................................. 8 EstimatedDebt Service Coverage........................................................................................................................ 8 ProjectedMandatory Redemptions....................................................................................................................... 9 TheCity................................................................................................................................................................ 9 TheSales and Use Tax.......................................................................................................................................... 12 Definitionsof Certain Terms................................................................................................................................ I S Summaryof the Indenture.................................................................................................................................... 22 Summary of the Continuing Disclosure Agreement............................................................................................. 26 Underwriting......................................................................................................................................................... 28 TaxExemption...................................................................................................................................................... 29 Rating..................................................................................................................................................................... 29 LegalMatters........................................................................................................................................................ 29 Miscellaneous....................................................................................................................................................... 30 Accuracy and Completeness of Official Statement.............................................................................................. 30 APPENDIX A - Form of Bond Counsel Opinion................................................................................................. A-1 • OFFICIAL STATEMENT $25,000,000 CITY OF FAYETTEVILLE, ARKANSAS SALES AND USE TAX CAPITAL IMPROVEMENT BONDS SERIES 2002 INTRODUCTORY STATEMENT The following introductory statement is subject in all respects to the more complete information set forth in this Official Statement. All descriptions and summaries of documents hereinafter set forth are qualified in their entirety by reference to each such document. Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms under the caption "DEFINITIONS OF CERTAIN TERMS" herein. This Official Statement, including the cover page and the Appendices hereto, is furnished in connection with the offering of Sales and Use Tax Capital Improvement Bonds, Series 2002, in the principal amount of $25,000,000 (the "Series 2002 Bonds"), by the City of Fayetteville, Arkansas (the "City"). The City is a city of the first class organized and existing under the laws of the State of Arkansas (the "State"). The City is authorized under Amendment 62 to the Constitution of the State ("Amendment 62") and Arkansas Code Annotated (1998 Repl. & 2001 Supp.) §§14-164-301 et seq. (as from time to time amended, the "Act"), to issue and sell bonds for the purpose of financing and refinancing the cost of capital improvements of a public nature. The Series 2002 Bonds are to be issued by the City pursuant to Amendment 62, the Act and Ordinance No. 4389, adopted and approved on May 7, 2002 (the "Authorizing Ordinance"), for the purpose of (i) financing a • portion of the costs of acquiring, constructing, reconstructing, extending, improving and equipping the City's wastewater treatment plants, sewerage and related facilities (the "Project"), (ii) establishing a debt service reserve for the Series 2002 Bonds, and (iii) paying the costs of issuing the Series 2002 Bonds. See the captions "SOURCES AND USES OF FUNDS" and 'THE PROJECT" herein. The Series 2002 Bonds are not general obligations of the City, but are special obligations payable solely from and secured by a pledge of the receipts of a special city-wide sales and use tax levied pursuant to the Act at the rate of three-quarters of one percent (0.75%) (the "Sales and Use Tax"). See the captions "SECURITY FOR THE BONDS," "HISTORICAL SALES AND USE TAX COLLECTIONS" and "SUMMARY OF THE INDENTURE" herein. The faith and credit of the City are not pledged to the payment of the Series 2002 Bonds, and the Series 2002 Bonds do not constitute an indebtedness of the City within the meaning of any constitutional or statutory debt limitation or restriction. The issuance of the Series 2002 Bonds shall not directly, indirectly or contingently obligate the City to levy or pledge any taxes whatsoever or to make any appropriation for the payment of the Series 2002 Bonds, except as described herein with respect to the Sales and Use Tax. Additional Bonds may be issued on a parity of security with the Series 2002 Bonds under certain circumstances set forth in the Indenture (hereinafter defined). The Series 2002 Bonds and any Additional Bonds are herein collectively referred to as the "Bonds." In addition, the City may incur loans under the Arkansas Soil and Water Conservation Commission Revolving Loan Fund Program ("RLF Loans"), which RLF Loans will be secured on a parity basis with the Bonds, except that RLF Loans will not be secured by the Debt Service Reserve Fund. Pursuant to the Indenture, the maximum principal amount of Bonds and RLF Loans that may be issued or incurred is limited to $125,000,000. See the caption "THE SERIES 2002 BONDS - Additional Bonds and RLFLoans" herein. The Series 2002 Bonds are subject to redemption from excess moneys in the Project Fund following completion of the Project and from Surplus Tax Receipts. See the captions "THE SERIES 2002 BONDS — • Redemption" and "PROJECTED MANDATORY REDEMPTIONS." Pursuant to the provisions of a Continuing Disclosure Agreement dated as of the date of delivery of the Series 2002 Bonds, by and between the City and the Trustee (the "Continuing Disclosure Agreement"), the City has undertaken certain obligations with respect to providing ongoing disclosure of certain financial and operating data concerning the City and the Sales and Use Tax and of the occurrence of certain material events. See the caption • "SUMMARY OF THE CONTINUING DISCLOSURE AGREEMENT" herein. This Official Statement contains brief descriptions or summaries of, among other matters, the City, the Series 2002 Bonds, the Sales and Use Tax, the Continuing Disclosure Agreement, and the Trust Indenture dated as of June 1, 2002, (the "Indenture"), by and between the City and Simmons First Trust Company, N.A., Pine Bluff, Arkansas, as trustee (the "Trustee"), pursuant to which the Series 2002 Bonds are issued and secured. Such descriptions and information do not purport to be comprehensive or definitive. All references herein to the Indenture and the Continuing Disclosure Agreement are qualified in their entirety by reference to each such documents, and all references to the Series 2002 Bonds are qualified in their entirety by reference to the definitive form thereof and the information with respect thereto included in the Indenture. Copies of the Continuing Disclosure Agreement, the Indenture, and the form of Series 2002 Bond included therein, are available from the City by writing to the attention of the Administrative Services Director, City of Fayetteville, City Administration Building, 113 West Mountain, Fayetteville, Arkansas 72701 and, during the initial offering period only, from the Underwriter, Stephens Inc., 3425 North Futrall, Suite 201, Fayetteville, Arkansas 72703. Certain financial and operating data has been provided by the City from the audited records of the City and certain demographic information has been obtained from other sources which are believed to be reliable. THE SERIES 2002 BONDS Description. The Series 2002 Bonds will be initially dated as of June 1, 2002, and will bear interest payable semiannually on June I and December I of each year, commencing December 1, 2002, at the rates set forth on the cover page hereof. The Series 2002 Bonds will mature on June 1 in the years and in the principal amounts set forth on the cover page hereof. The Series 2002 Bonds are issuable only in the form of fully registered bonds and, when issued, will be registered in the name of Cede & Co., as nominee of The Depository Trust Company ("DTC"), New York, New York, to which principal, premium, if any, and interest payments on the Series 2002 Bonds will be made so long as Cede & Co. is the registered owner of the Series 2002 Bonds. Individual purchases of the Series 2002 Bonds will be made only in book -entry form, in denominations of $5,000 or integral multiples thereof. Individual purchasers ("Beneficial Owners") of Series 2002 Bonds will not receive physical delivery of bond certificates. See the caption "BOOK -ENTRY ONLY SYSTEM" herein. All interest payments on the Series 2002 Bonds shall be payable to the persons in whose name such Series 2002 Bonds are registered on the bond registration books maintained by the Trustee, as of the fifteenth day of the calendar month preceding the calendar month in which the applicable interest payment date falls. Principal of and premium, if any, on the Series 2002 Bonds shall be payable at the principal corporate trust office of the Trustee. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Series 2002 Bond to the extent of the sum or sums so paid. So long as DTC or its nominee is the registered owner of the Series 2002 Bonds, disbursement of such payments to DTC Participants is the responsibility of DTC, and the disbursement of such payments to Beneficial Owners is the responsibility of DTC Participants or Indirect Participants, as more fully described herein. Redemption. The Series 2002 Bonds are subject to redemption prior to maturity as follows: (a) The Series 2002 Bonds shall be redeemed prior to maturity, in whole or in part, on any interest payment date, in inverse order of maturity and by lot in such manner as the Trustee shall determine within a maturity, at a redemption price equal to 100% of the principal amount being redeemed, plus accrued interest to the date of redemption, from Project Fund moneys in excess of the amount needed to complete the Project. (b) The Series 2002 Bonds shall be redeemed prior to maturity, in whole or in part, on any interest payment date, in inverse order of maturity and by lot in such manner as the Trustee shall determine within a maturity, at a redemption price equal to 100% of the principal amount being redeemed, plus accrued interest to the date of redemption, from Surplus Tax Receipts. "Surplus Tax Receipts" are collections of the Sales and Use Tax in excess of the amount necessary to (i) insure the prompt payment of the principal of and interest on Outstanding Bonds and any RLF Loan, (ii) maintain the Debt Service Reserve Fund in an amount equal to the Reserve Requirement, (iii) pay any arbitrage rebate due under Section 148(f) of the Internal Revenue Code of 1986, as amended (the "Code"), and (iv) pay Trustee and Paying Agent fees and expenses. So long as the Series 2002 Bonds are Outstanding, all Surplus Tax • Receipts shall be applied to the redemption of the Series 2002 Bonds prior to maturity. See the caption "PROJECTED MANDATORY REDEMPTIONS" herein. (c) The Series 2002 Bonds maturing on June 1, 2007, are subject to mandatory sinking fund redemption, to be selected by lot in such manner as the Trustee shall determine, on June I in the years and amounts set forth below, at a redemption price equal to 100% of the principal amount thereof, plus accrued interest to the date of redemption. Date Principal Amount June 1, 2006 $4,205,000 June 1, 2007 (maturity) 2,700,000 Partial Redemption of a Series 2002 Bond. If less than all of the Series 2002 Bonds of a maturity are called for redemption, the particular Series 2002 Bonds or portions of Series 2002 Bonds to be redeemed shall be selected by lot in such manner as the Trustee in its discretion may deem fair and appropriate. So long as DTC or its nominee is the sole registered owner of the Series 2002 Bonds, the procedures established by DTC shall control with respect to the selection of the particular Series 2002 Bonds to be redeemed. Notice of Redemption. Notice of the call for any redemption, identifying the Series 2002 Bonds or portions thereof being called and the date on which they shall be presented for payment, shall be mailed by the Trustee by first class mail (or, so long as DTC or its nominee is the sole registered owner of the Series 2002 Bonds, by any other means acceptable to DTC, including facsimile) to the registered owner of each such Series 2002 Bond addressed to such registered owner at his registered address and placed in the mails not less than thirty (30) nor more than sixty (60) days prior to the date fixed for redemption; provided, however, that failure to give such notice by mailing, or any defect therein, shall not affect the validity of any proceeding for the redemption of any Series 2002 Bond with respect to which no such failure or defect has occurred. • Any notice mailed as provided above shall be conclusively presumed to have been duly given, whether or not the registered owner receives the notice. Additional Bonds and RLF Loans. The City may issue from time to time one or more series of Additional Bonds for the purpose of (i) financing Project Costs in connection with the completion of the Project, (ii) refunding the Series 2002 Bonds or any series of Additional Bonds or any RLF Loan, in whole or in part, or (iii) any combination thereof. Additional Bonds shall be secured equally and ratably with the Series 2002 Bonds and any other series of Additional Bonds theretofore issued or any RLF Loan theretofore incurred and then Outstanding, except insofar as any terms or conditions of redemption or purchase established under the Indenture may afford additional benefit or security for the Bonds of any particular series and except for the security afforded by any municipal bond insurance obtained with respect to any particular series of Bonds; provided, however, that RLF Loans structured as Additional Bonds shall not be secured by the Debt Service Reserve Fund. Before any Additional Bonds are authenticated, there shall be delivered to the Trustee the items required for the issuance of Bonds by the Indenture, plus a Certificate of the Administrative Services Director of the City certifying that, based upon necessary investigation, the Sales and Use Tax receipts transferred to the Trustee during the most recent twelve (12) months were not less than (i) 125% of the maximum Annual Debt Service on all then Outstanding Bonds and any RLF Loan, plus the Additional Bonds then proposed to be issued, and (ii) the amount, if any, needed to make required deposits to the Debt Service Reserve Fund. Prior to any drawdown on an RLF Loan, there shall be delivered to the Trustee a Certificate of the Administrative Services Director of the City certifying that, based upon necessary investigation, the Sales and Use Tax receipts transferred to the Trustee during the most recent twelve (12) months were not less than 125% of the maximum Annual Debt Service on all the Outstanding Bonds and any RLF Loan theretofore incurred, plus the maximum Annual Debt Service on the amount of the additional RLF Loan to be incurred. No Additional Bonds shall be issued and no RLF Loan shall be incurred unless there is no default at the time of issuance under the Indenture. It is the City's present intention to obtain an RLF Loan in the approximate amount of $100 million in order to obtain the additional funds needed to complete the acquisition, construction and equipping of the Project. It is • anticipated that the RLF Loan will be entered into in the fourth quarter of 2002 and funds will be drawn down over a period of 24-36 months, beginning December, 2003. The RLF Loan may, but need not, be structured in the form of an Additional Bond or Bonds. If the proceeds of the Series 2002 Bonds and the amounts available under an RLF Loan are insufficient to complete the funding of the Project, the City may issue Additional Bonds to the extent needed. Pursuant to the Indenture, the maximum principal amount of Bonds and RLF Loans that may be issued or incurred is limited to $125,000,000. Transfer or Exchange. The Bonds may be transferred on the books of registration kept by the Trustee by the registered owner in person or by the owner's duly authorized attorney, upon surrender thereof, together with a written instrument of transfer duly executed by the registered owner or the owner's duly authorized attorney. Upon surrender for transfer of any Bond at the principal corporate office of the Trustee, the City shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Bond or Bonds of the same series and in the same aggregate principal amount and of any authorized denomination or denominations. Transfers of registration or exchanges of Bonds shall be without charge to the Holders of such Bonds, but any taxes or other governmental charges required to be paid with respect to the same shall be paid by the Holder of the Bond requesting such transfer or exchange as a condition precedent to the exercise of such privilege. The Trustee shall not be required to transfer or exchange any Bond during the period from and including a Record Date to the next succeeding interest payment date of such Bond nor to transfer or exchange any Bond after the mailing of notice calling such Bond for redemption has been made, and prior to such redemption. So long as DTC or its nominee is the sole registered owner of the Series 2002 Bonds, transfers of beneficial interests in the Series 2002 Bonds shall be in accordance with the rules and procedures of DTC and its direct and indirect participants. See the caption "BOOK -ENTRY ONLY SYSTEM" herein. SECURITY FOR THE BONDS General. The Bonds are special obligations of the City secured by and payable from the receipts of a three- quarters of one percent (0.75%) city-wide sales and use tax (the "Sales and Use Tax"). The Sales and Use Tax was levied under Ordinance No. 4327, duly adopted by the City Council of the City on August 7, 2001 (the "Election Ordinance"). Pursuant to the Election Ordinance, a special election was held on November 6, 2001, at which time the qualified electors of the City approved the issuance of capital improvement bonds in principal amount not to exceed $125,000,000 and the corresponding levy of the Sales and Use Tax. The receipts of the Sales and Use Tax were pledged to secure the payment of Debt Service on the Series 2002 Bonds pursuant to Ordinance No. 4389, duly • adopted by the City Council of the City on May 7, 2002 (the "Authorizing Ordinance"). The collection of the Sales and Use Tax commenced April 1, 2002. See the captions "THE SALES AND USE TAX" and "HISTORICAL SALES AND USE TAX COLLECTIONS" herein. The Bonds do not constitute an indebtedness of the City within the meaning of any constitutional or statutory debt limitation or restriction. The issuance of the Bonds shall not directly, indirectly or contingently obligate the City to levy or pledge any taxes whatsoever or to make any appropriation for the payment of the Bonds, except as described herein with respect to the Sales and Use Tax. Debt Service Reserve. From the proceeds of sale of each series of Bonds issued pursuant to the Indenture, there shall be deposited into the Debt Service Reserve Fund an amount which, together with the amounts then on deposit therein, will be equal to 5% of the aggregate principal amount on all Outstanding Bonds (the "Reserve Requirement"); provided, however, that no proceeds of RLF Loans will be deposited in the Debt Service Reserve Fund and the Debt Service Reserve Fund will not secure RLF Loans structured as Additional Bonds. The Debt Service Reserve Fund shall be used solely to pay the principal of and interest on Outstanding Bonds (not including RLF Loans) as due for which there are no available funds in the Bond Fund to make such payments. If the amount in the Debt Service Reserve Fund is ever reduced below the Reserve Requirement, it shall be reimbursed to an amount equal to the Reserve Requirement through monthly payments, beginning not later than the last day of the month in which the Debt Service Reserve Fund was reduced below the Reserve Requirement, and continuing not later than the last day of each month thereafter until such reimbursement shall have been accomplished, from any funds in the Revenue Fund (after making the required deposits into the Interest Account and Principal Account of the Bond Fund and after providing for the payment of monthly principal and interest payments on RLF Loans, as provided in the Indenture). If a surplus shall exist in the Debt Service Reserve Fund over and above the Reserve Requirement, such surplus shall be deposited into the Interest Account of the Bond Fund. The moneys on deposit in the Debt Service Reserve Fund may be used, together with other available funds, to provide for the payment at maturity or to redeem prior to maturity all, but not less than all, of the Outstanding • Bonds (not including RLF Loans). BOOK -ENTRY ONLY SYSTEM • The Series 2002 Bonds will be issued only as one fully registered Series 2002 Bond for each maturity in the name of Cede & Co., as nominee for The Depository Trust Company, New York, New York ("DTC"), as registered owner of all the Series 2002 Bonds. The fully registered Series 2002 Bonds will be retained and immobilized in the custody of DTC. DTC (or any successor securities depository) or its nominee for all purposes under the Indenture will be considered by the City and the Trustee to be the owner or Holder of the Series 2002 Bonds. Owners of any book entry interests in the Series 2002 Bonds (the "book entry interest owners") described below, will not receive or have the right to receive physical delivery of the Series 2002 Bonds, and will not be considered by the City and the Trustee to be, and will not have any rights as, owners or Holders of the Series 2002 Bonds under the bond proceedings and the Indenture except to the extent, if any, expressly provided thereunder. CERTAIN INFORMATION REGARDING DTC AND DIRECT PARTICIPANTS IS SET FORTH BELOW. THIS INFORMATION HAS BEEN PROVIDED BY DTC. THE CITY, THE UNDERWRITER AND BOND COUNSEL ASSUME NO RESPONSIBILITY FOR THE ACCURACY OF SUCH STATEMENTS. DTC is a limited -purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code, and a "clearing agency" registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds securities that its participants ("Direct Participants") deposit with DTC. DTC also facilitates the settlement among Direct Participants of securities transactions, such as transfers and pledges, in deposited securities through electronic computerized book -entry changes in Direct Participants' accounts, thereby eliminating the need for physical movement of securities certificates. Direct Participants include securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is owned by a number of its Direct Participants and by the New York Stock Exchange, Inc., the American Stock Exchange LLC, and the National Association of Securities Dealers, Inc. Access to the DTC system is also available to others such as securities brokers and dealers, banks, and trust companies that clear through or maintain a custodial relationship with a Direct • Participant, either directly or indirectly ("Indirect Participants"). The Rules applicable to DTC and its Direct and Indirect Participants are on file with the Securities and Exchange Commission. Purchases of Series 2002 Bonds under the DTC system must be made by or through Direct Participants, which will receive a credit for the Series 2002 Bonds on DTC's records. The ownership interest of each actual purchaser of each Series 2002 Bond ("Beneficial Owner") is in turn to be recorded on the Direct and Indirect Participants' records. Beneficial Owners will not receive written confirmation from DTC of their purchase, but Beneficial Owners are expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into the transaction. Transfers of ownership interests in the Series 2002 Bonds are to be accomplished by entries made on the books of Direct and Indirect Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests in Series 2002 Bonds, except in the event that use of the Book -Entry System for the Series 2002 Bonds is discontinued. To facilitate subsequent transfers, all Series 2002 Bonds deposited by Direct Participants with DTC are registered in the name of DTC's partnership nominee, Cede & Co. or such other name as may be requested by an authorized representative of DTC. The deposit of Series 2002 Bonds with DTC and their registration in the name of Cede & Co. or such other nominee do not effect any change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the Series 2002 Bonds, DTC's records reflect only the identity of the Direct Participants to whose accounts such Series 2002 Bonds are credited, which may or may not be the Beneficial Owners. The Direct and Indirect Participants will remain responsible for keeping account of their holdings on behalf of their customers. Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time. Neither DTC nor Cede & Co. (nor such other DTC nominee) will consent or vote with respect to the Series • 2002 Bonds. Under its usual procedures, DTC will mail an Omnibus Proxy to the City as soon as possible after the Record Date. The Omnibus Proxy will assign Cede & Co.'s consenting or voting rights to those Direct Participants to whose accounts the Series 2002 Bonds are credited on the Record Date (identified in a listing attached to the Omnibus Proxy). Payment of Debt Service on the Series 2002 Bonds will be made to Cede & Co., or such other nominee as may be required by an authorized representative of DTC. DTC's practice is to credit Direct Participants' accounts, upon DTC's receipt of funds and corresponding detail information from the City or the Trustee on payable date in accordance with their respective holdings shown on DTC's records. Payments by Participants to Beneficial Owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in "street name," and will be the responsibility of such Participant and not of DTC, the Trustee or the City, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of Debt Service to Cede & Co. (or such other nominee as may be requested by an authorized representative of DTC) is the responsibility of the City or the Trustee, disbursement of such payments to Direct Participants shall be the responsibility of DTC, and disbursement of such payments to the Beneficial Owners shall be the responsibility of Direct and Indirect Participants. BENEFICIAL OWNERS SHOULD CONSULT WITH THE DIRECT PARTICIPANTS OR INDIRECT PARTICIPANTS FROM WHOM THEY PURCHASE A BOOK ENTRY INTEREST TO OBTAIN INFORMATION CONCERNING THE BOOK -ENTRY SYSTEM MAINTAINED BY SUCH DIRECT PARTICIPANTS OR INDIRECT PARTICIPANTS TO RECORD SUCH INTERESTS, TO MAKE PAYMENTS, TO FORWARD NOTICES OF REDEMPTION AND OF OTHER INFORMATION. THE CITY AND THE TRUSTEE HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY ASPECTS OF THE RECORDS OR NOTICES RELATING TO, OR PAYMENTS MADE ON ACCOUNT OF, BOOK ENTRY INTEREST OWNERSHIP, OR FOR MAINTAINING, SUPERVISING OR REVIEWING ANY RECORDS RELATING TO THAT OWNERSHIP. The Trustee and the City, so long as a book entry method of recording and transferring interest in the Series 2002 Bonds is used, will send any notice of redemption or of any Indenture amendment or supplement or other notices to Bondholders under the Indenture only to DTC (or any successor securities depository) or its nominee. Any failure of DTC to advise any Direct Participants, or of any Direct Participants or Indirect Participants to notify any Beneficial Owner, of any such notice and its content or effect will not affect the validity of the redemption of the Series 2002 Bonds called for redemption, the Indenture amendment or supplement, or any other action premised on notice given under the Indenture. The City and the Trustee cannot and do not give any assurances that DTC, Direct Participants, Indirect Participants or others will distribute payments of Debt Service on the Series 2002 Bonds made to DTC or its nominee as the registered owner of the Series 2002 Bonds, or any redemption or other notices, to the Beneficial Owners, or that they will do so on a timely basis, or that DTC will serve and act in a manner described in this Official Statement. DTC may discontinue providing its services as securities depository with respect to the Series 2002 Bonds at any time by giving reasonable notice to the City or the Trustee. Under such circumstances, in the event that a successor securities depository is not obtained, bond certificates are required to be printed and delivered. In addition, the City may decide to discontinue use of the system of book -entry transfers through DTC (or a successor securities depository). In that event, bond certificates will be printed and delivered. DTC advises that the current "Rules" applicable to DTC are on file with the Securities and Exchange Commission, and the current "Procedures" of DTC to be followed in dealing with DTC Participants are on file with DTC. THE PROJECT • • Existing Wastewater System. The City presently operates and maintains a municipal wastewater system, including administrative services, a collection system, pumping stations and a wastewater treatment plant. The existing wastewater system includes an estimated 430 miles of pipelines, a 12.6 million gallon per day advanced wastewater treatment plant and 33 wastewater pumping stations. These facilities serve an estimated population equivalent of 75,000 and transport an average daily flow in excess of 12 million gallons. Growth of the service area population has consumed the available wastewater system capacity and has justified the construction of core system improvements. A comprehensive facility plan has been developed which identifies a number of wastewater system components that must be upgraded, expanded or replaced in order to meet the service area needs for a projected 20 -year design period. In addition to the provision of needed infrastructure • capacity, the proposed improvements address ancillary issues of bypassing, odor control, residuals management and operational economies. A study of numerous alternatives and scenarios found the selected scope of the Project to represent the most cost-effective strategy based upon a combination of construction costs and the present worth of long-term operating costs. • • Proposed Project Improvements. The scope of the Project includes the construction of additional interceptor sewer lines, force mains and pumping stations, existing treatment plant renovations, the construction of a new wastewater treatment plant with a capacity of 10 million gallons per day, and related wastewater improvements. The current wastewater system is configured to pump all of the City's wastewater flow to a single treatment plant on the eastern side of the City, with a portion of the treated wastewater flow being pumped back to the western side of the City. Completion of the Project will eliminate this duplicate pumping between watersheds by construction of a new west side treatment plant. More than 30 miles of new pipelines ranging in size from 8 -inch to 48 -inch in diameter will be constructed as part of the Project. A revised collection system will eliminate the need for six existing lift stations, and nine existing lift stations will be upgraded. The construction of the new west side plant, coupled with the upgrade of the existing east side treatment plant (revised capacity of 11.8 million gallons per day is reduced as a result of improved odor control and processing), will increase total wastewater treatment capacity from 12.6 to 21.8 million gallons per day and will satisfy projected 20 -year needs. The total cost of the Project is expected to be approximately $120 million. This cost estimate has been developed by the various design firms and includes allowances for inflation. Within the $120 million Project budget are cost allowances for professional services, right-of-way purchase, construction contracts, start-up services, performance evaluation services and a contract contingency. The preliminary Project schedule anticipates commencement of construction in the fourth quarter of 2003 and completion late in 2005. The Project is expected to be financed by a combination of Bonds and RLF Loans, the debt service on each to be paid from Sales and Use Tax receipts. The issuance of Bonds and the incurrence of RLF Loans in aggregate principal amount not to exceed $125 million, and the pledge of Sales and Use Tax receipts to pay the debt service thereon, has been approved by the voters of the City. In the event proceeds of Bonds and RLF Loans are insufficient to provide for the costs of the Project in full, the deficiency is expected to be funded with System revenues or indebtedness secured by System revenues. HISTORICAL SALES AND USE TAX COLLECTIONS Collection of the Sales and Use Tax commenced April 1, 2002. Set forth below is a table showing receipts of the City's 1% general city-wide sales and use tax for the last five years and for the twelve-month period from April 1, 2001 to March 31, 2002. The table also shows the growth percentage of historical receipts and what historical receipts of the general city-wide sales and use tax would have been had the rate been three-quarters of one percent (0.75%). Historical Collections Projected Collections Year (1.00%) Growth Percentage (0.75%) 1997 $ 9,601,424 n/a $7,201,068 1998 10,445,093 8.75% 7,833,820 1999 10,985,041 5.17% 8,238,781 2000 11,580,857 5.42% 8,685,643 2001 11,935,870 3.07% 8,951,902 2002['1 12,189,524 n/a 9,142,143 (1) For the twelve-month period from April I, 2001 to March 31, 2002. SOURCES AND USES OF FUNDS The proceeds of the Series 2002 Bonds will be used as follows: • Sources of Funds Par amount of Series 2002 Bonds $25,000,000 Reoffering Premium 388,106 Total Sources: $25.388.106 Uses of Funds Deposit to Project Fund $23,898,106 Debt Service Reserve Fund Deposit 1,250,000 Costs of Issuance and Underwriter's Discount 240.000 Total Uses: $25.388.106 DEBT SERVICE REQUIREMENTS As of the date of closing, the Series 2002 Bonds will constitute the only debt obligations secured by receipts of the Sales and Use Tax. The following table sets forth the amounts required to pay scheduled principal of and interest on the Series 2002 Bonds during each year: Series 2002 Series 2002 Total Debt Year Principal"' Interest Service 2002 $ - $ 407,830 $ 407,830 2003 6,455,000 751,110 7,206,110 2004 6,365,000 559,260 6,924,260 2005 5,275,000 326,460 5,601,460 2006 4,205,000 153,680 4,358,680 2007 2,700,000 43.200 2,743,200 • Totals: S25.000.000 $2.241.540 S27.241,540 Includes mandatory sinking fund redemptions. ESTIMATED DEBT SERVICE COVERAGE The following table shows estimated maximum and average annual debt service coverage with respect to the Series 2002 Bonds utilizing historical sales and use tax receipts from April 1, 2001, to March 31, 2002. Historical Sales and Use Tax Receipts(DI $9,142,143 Maximum Annual Debt Service Requirement on Series 2002 Bonds(2) $7,206, 110 Average Annual Debt Service Requirement on Series 2002 Bonds(2) $5,366,742 Maximum Annual Debt Service Coverage 1.27X Average Annual Debt Service Coverage I.70X 'H Based on 75% of the historical collections of the 1% general city-wide sales and use tax for the twelve-month period from April 1. 2001 to March 31, 2002. See the caption "HISTORICAL SALES AND USE TAX COLLECTIONS" herein. (2) Calculated for the years 2003-2007. See the caption "ESTIMATED DEBT SERVICE REQUIREMENTS" herein. THE COVERAGE NUMBERS SET FORTH ABOVE ARE BASED ON HISTORICAL SALES AND USE TAX RECEIPTS. ACTUAL RECEIPTS OF THE SALES AND USE TAX WILL DEPEND ON NUMEROUS FACTORS, AND THERE CAN BE NO ASSURANCE THAT FUTURE SALES AND USE TAX RECEIPTS • AVAILABLE TO PAY DEBT SERVICE ON THE SERIES 2002 BONDS WILL APPROXIMATE SUCH HISTORICAL RESULTS. PROJECTED MANDATORY REDEMPTIONS • The table under the caption "DEBT SERVICE REQUIREMENTS" does not reflect possible mandatory redemptions of the Series 2002 Bonds from Surplus Tax Receipts. if available. Surplus Tax Receipts are all receipts of the Sales and Use Tax in excess of the amount necessary (i) to assure the prompt payment of the principal of and interest on Outstanding Bonds and any RLF Loan, (ii) to maintain the Debt Service Reserve Fund in an amount equal to the Reserve Requirement, (iii) to pay any arbitrage rebate due under Section 148(f) of the Code, and (iv) to pay Trustee and Paying Agent fees and expenses. So long as any of the Series 2002 Bonds are Outstanding, Surplus Tax Receipts are required to be used to redeem Series 2002 Bonds prior to maturity. THERE CAN BE NO ASSURANCE GIVEN THAT SALES AND USE TAX RECEIPTS WILL BE REALIZED IN THE AMOUNTS ASSUMED IN THE TABLE ABOVE. See the caption "THE SALES AND USE TAX — Future Sales and Use Tax Receipts" herein. IN ADDITION, THERE CAN BE NO ASSURANCE GIVEN AS TO THE PRECISE AMOUNT AND TIMING OF DEBT SERVICE PAYMENTS ON ANY RLF LOAN OR EARNINGS ON THE DEBT SERVICE RESERVE FUND. Year Ending Series 2002 Bonds Redeemed Total Series 2002 Bond June II'J Principal Due Prior to Maturity(2) Principal Retired 2003 $6,455,000 $1,895,000 $8,350,000 2004 6,365,000 1,920,000 8,285,000 2005 5,275,000 3,090,000 8,365,000 U) Series 2002 Bonds are subject to mandatory redemption from Surplus Tax Receipts on each June I and December I. See the caption "THE SERIES 2002 BONDS — Redemption" herein. (2) Assuming Sales and Use Tax receipts of $9,142,143 for the twelve months ending June I, 2003, 2004 and 2005, scheduled debt service on an RLF Loan of $-0- for the twelve months ending June 1. 2003. $219,178 for the twelve months ending June 1, 2004, and $1,561,301 for the twelve months ending June 1, 2005, earnings on the Debt Service Reserve Fund at a rate of 3.10% and use of the entire amount in the Debt Service Reserve Fund ($1,250,000) to redeem Series 2002 Bonds on June 1, 2005. • THE CITY General. The City is a city of the first class organized and existing under the laws of the State of Arkansas. The City is the seat of government of Washington County (the "County") and is the sixth largest city in the State. The City is located in the Metropolitan Statistical Area of Fayetteville/Springdale/Rogers (the "MSA"), which includes all of Washington and Benton Counties in the northwest corner of the State and is approximately 185 miles northwest of Little Rock, Arkansas, 125 miles east of Tulsa, Oklahoma, and 210 miles south of Kansas City, Missouri. The City is served by U.S. Interstate 540, U.S. Highways 62 and 71, and State Highways 16, 45, 112, 156, 180 and 265. The Burlington Northern Railroad has several lines running through the City, and a municipal airport with a 6,006 -foot runway is available for limited commuter travel. The Northwest Arkansas Regional Airport is located approximately 40 minutes from downtown Fayetteville and provides daily flights to numerous venues. Government. The City currently operates under the Mayor -Council form of government pursuant to which a mayor, city attorney, city clerk and eight aldermen are elected, two from each of the City's four wards. The mayor, city attorney and city clerk are full-time positions elected to four year terms. Aldermen also serve four year terms. There is currently one vacant alderman position. • The City's elected officials and the dates on which their respective terms expire are as follows: Name Office Term Expires • Dan Coody Mayor 12/31/04 Kit Williams City Attorney 12/31/02 Heather Woodruff City Clerk 12/31/04 Bob Davis Alderman 12/31/04 Lioneld Jordan Alderman 12/31/04 Don Marr Alderman 12/31/04 Robert Reynolds Alderman 12/31/02 Kevin Santos Alderman 12/31/02 Brenda Thiel Alderman 12/31/04 Cyrus Young Alderman 12/31/02 Population. The following is a table of population changes for the City, the MSA and the State of Arkansas, according to the United States Census Bureau: City of State of Year Fayetteville MSA Arkansas 1960 20,274 92,069 1,786,272 1970 30,729 127,846 1,923,322 1980 36,608 178,609 2,286,435 1990 42,099 210,908 2,350,624 2000 58,047 311,121 2,673,400 Economic Data. Per capita personal income figures for the MSA and the State of Arkansas are as follows: State of Year MSA Arkansas 1992 $18,765 $16,995 • 1993 18,765 16,995 1994 19,590 17,750 1995 20,193 18,546 1996 20,870 19,442 1997 21,586 20,228 1998 22,893 21,256 1999 24,213 22,223 Source: Bureau of Economic Analysis. Retail sales figures for the MSA and the State are as follows: MSA State of MSA as % of Year Arkansas State of Arkansas 1993 $1,880,105,000 $16,997,721,000 11.06% 1994 . 2,217,229,000 19,090,516,000 11.61 1995 2,486,425,000 20,998,923,000 11.84 1996 2,692,554,000 22,053,022,000 12.21 1997 2,845,968,000 22,872,236,000 12.44 1998 3,018,896,000 23,944,647,000 12.61 1999* n/a n/a n/a 2000 3,526,791,000 28,488,033,000 12.38 2001 3,806,422,000 29,652,693,000 12.84 * Methodology changed to calendar year basis. No reliable information is available for 1999. Source: Sales and Marketing Management Survey of Buyer Power. • 10 The following table shows the total assessed value of non -utility real and personal property within the City for the years indicated: • Year Real Property Personal Property Total 1994 $245,093,513 $ 86,322,277 $331,415,790 1995 340,593,452 101,274,620 441,868,072 1996 359,369,202 113,157,365 472,526,567 1997 382,798,143 120,064,627 502,862,770 1998 401,001,338 127,575,096 528,576,434 1999 413,648,415 137,404,499 551,052,914 2000 432,951,171 145,147,891 578,099,062 2001 486,853,822 155,794,579 642,648,401 Source: Washington County Tax Assessor's Office. The assessed value represents 20% of the appraised value of property. Building permits issued by the City' l are shown below for the years indicated: 1997 1998 1999 2000 2001 Residential Building 326 304 451 361 339 Permits Commercial Building 39 41 59 27 38 Permits Value of All Building Permits $59,288.194 $51,948,911 $100,744.816 $121,887,263 $85,262,302 t'1 Does not include building activity of University of Arkansas, school permits and additionstalterations to existing structures. Source: City of Fayetteville. • Unemployment figures for the MSA and the State of Arkansas, according to the U.S. Bureau of Labor Statistics, are as follows: Year MSA State of Arkansas 1994 2.4% 5.3% 1995 2.4 4.9 1996 2.9 5.4 1997 3.0 5.3 1998 3.2 5.5 1999 2.4 4.5 2000 2.1 4.4 2001 1.7 5.1 2002* 2.6 5.9 • February only. Employment and Industry. The principal campus of the University of Arkansas is located in the City and had total enrollment for the Spring semester of 2002 of approximately 15,000. For the 2001-02 fiscal year ending June 30, 2002, the University has an operating budget in excess of $98.7 million, which does not include the agricultural experimentation station or other associated operations. On the Fayetteville campus, the University employs approximately 2,635 faculty, administrative, secretarial, clerical and maintenance personnel in both full- time and part-time positions, making the University the largest employer in the City. • 11 Other major employers in the City, their products or services and approximate number of employees are set forth below: Employer Product or Service Employee Range Pinnacle Foods Frozen Dinners 1,000-2,499 Superior Industries Cast Aluminum Wheels 1,000-2,499 Tyson's Original Mexican Mexican Food Products 500-599 Tyson's Entree Division Frozen Dinner Entrees 500-599 Levi Straus Jackets 300-399 McClinton -Anchor Co. Limestone & Hot Mix 300-399 American Air Filter Air Filters 200-299 Baldwin Piano & Organ Elec. Organs & Ore. Bed 200-299 Marshalltown Tools Cement Finishing Tools 200-299 Standard Register Business Forms 200-299 Danaher Tool Group Hand tools 100-199 Kearney Company Hi -Line Connectors 100-199 Source: Fayetteville Chamber of Commerce. THE SALES AND USE TAX Generally. The Sales and Use Tax is levied under the Election Ordinance pursuant to the authority of the Act. The Sales and Use Tax is a tax within the City on all items which are subject to taxation under The Arkansas Gross Receipts Act of 1941 and a tax on the receipts from storing, using or consuming tangible personal property under The Arkansas Compensating (Use) Tax Act of 1949. The Sales and Use Tax is collected only on the first $2,500 of gross receipts, gross proceeds or sales price from any single transaction. Pursuant to the Indenture and the Authorizing Ordinance, the City has pledged the receipts of the Sales and Use Tax to the payment of the Series 2002 Bonds. Collection of the Sales and Use Tax commenced April 1, 2002. Sales Tax. The sales tax portion of the Sales and Use Tax is generally levied upon the gross proceeds and receipts derived from all sales to any Person within the City of the following: (a) Tangible personal property; (b) Natural or artificial gas, electricity, water, ice, steam, or any other utility or public service except transportation services, sewer services and sanitation or garbage collection services; (c) (i) Service by telephone, telecommunications and telegraph companies to subscribers or users, including transmission of messages or images, whether local or long distance, including all service, installation, construction and rental charges having any connection with transmission of any message or image; (ii) Service of furnishing rooms, suites, condominiums, townhouses, rental houses or other accommodations by hotels, apartment hotels, lodging houses, tourist camps, tourist courts, property management companies, or any other provider of accommodations to transient guests; (iii) Service of cable television, community antenna television, and any and all other distribution of television, video, or radio services with or without the use of wires provided to subscribers, paying customers or users, including installation, service, rental, repair and other charges having any connection with the providing of the said services; • (iv) Service or alteration, addition, cleaning, refinishing, replacement and repair of motor vehicles, aircraft, farm machinery and implements, motors of all kinds, tires and batteries, boats, electrical appliances and devices, furniture, rugs, upholstery, household appliances, televisions and radios, jewelry, • watches and clocks, engineering instruments, medical and surgical instruments, machinery of all kinds, bicycles, office machines and equipment, shoes, tin and sheet metal, mechanical tools and shop equipment; however, the tax does not apply to (A) coin operated car washes, (B) the maintenance or repair of railroad 12 parts, railroad cars and equipment brought into the City solely and exclusively for the purpose of being repaired, refurbished, modified, or converted within the City, (C) the service of alteration, addition, • cleaning, refinishing, replacement or repair of commercial jet aircraft or commercial jet aircraft components or subcomponents, (D) the repair or remanufacture of industrial metal rollers or platens that have a remanufactured non-metallic material covering on all or a part of the roller or platen surface, or (E) the alteration, addition, cleaning, refinishing, replacement or repair of non -mechanical, passive or manually operated components of buildings or other improvements or structures affixed to real estate; (v) Service of providing transportation or delivery of money, property or valuables by armored car; service of providing cleaning or janitorial work; service of pool cleaning and servicing; pager services; telephone answering services; landscaping and non-residential lawn care services; service of parking a motor vehicle or allowing a motor vehicle to be parked; service of storing a motor vehicle; service of storing furs; and the service of providing indoor tanning at a tanning salon; (d) Printing of all kinds, types and characters, including the service of overprinting, and photography of all kinds; (e) Tickets or admissions to places of amusement, to athletic, entertainment, recreational events, or fees for the privilege of having access to or the use of amusement, entertainment, athletic or recreational facilities, including free or complimentary passes and tickets, admissions, dues or fees; (t) Dues and fees to health spas, health clubs and fitness clubs; dues and fees to private clubs which hold any permit from the Alcoholic Beverage Control Board allowing the sale, dispensing or serving of alcoholic beverages of any kind on the premises; and (g) Lease or rental of motor vehicles, other than diesel trucks rented for residential moving or commercial shipping or farm machinery rented or leased for a commercial purpose, for a period less than 30 days, or purchase of motor vehicles for rental or lease regardless of the length of the rental or lease. • Exemptions from Sales Tar. As summarized below, several types of transactions have been exempted from the sales tax by the General Assembly of the State. Some of the current exemptions include the sale of: (a) New or used house trailers, mobile homes, aircraft, motor vehicles, trailers or semi -trailers and a used house trailer, mobile home, aircraft, motor vehicle, trailer or semi -trailer is taken as a credit or part payment of the purchase price, when the total consideration is less than the following: $2,000 for aircraft, house trailers and mobile homes (or $10,000 in case the house trailer or mobile home is a "manufactured home"); and $2,500 for motor vehicles, trailers and semi -trailers; (b) Aircraft held for resale and used for rental or charter, whether by a business or an individual for a period not to exceed one year from the date of purchase of aircraft; (c) Tangible personal property or services by churches, except where such organizations may be engaged in business for profit; (d) Tangible personal property, or service by charitable organizations, except where such organizations may be engaged in business for profit; (e) Food in public, common, high school or college cafeterias and lunchrooms operated primarily for teachers and pupils, and not operated primarily for the public or for profit; (I) Newspapers; (g) Property or services to the United States Government; motor vehicles and adaptive equipment to disabled veterans who have purchased said vehicles or equipment with financial assistance of the Veterans • Administration; tangible personal property to the Salvation Army, Heifer Project International, Inc., Habitat for Humanities, the Boy Scouts of America, the Girl Scouts of America or any of the Scout Councils in the State; tangible personal property or service to the Boys Clubs of America or any local councils or organizations of the Boys Clubs of America, the Girls Clubs of America or any local councils or organizations of the Girls Clubs of 13 America, to the Poets' Roundtable of Arkansas, Arkansas Future Farmers of America Foundatioi (h) Gasoline or motor vehicle fuel State and special fuel or petroleum products watercraft and railroads; to 4-H Clubs and FFA Clubs, to the Arkansas 4-H Foundation, the and the Arkansas Future Farmers of America Association; on which the motor vehicle fuel or gasoline tax has been paid to the • sold for consumption by vessels, barges and other commercial (i) Property resales to Persons regularly engaged in the business of reselling the articles purchased:, (j) Advertising space in newspapers and publications and billboard advertising services; (k) Gate admissions at State, district, county or township fairs or at any rodeo if the receipts derived from gate admissions to the rodeo are used exclusively for the improvement, maintenance and operation of such rodeo, and if no part of the net earnings thereof inures to the benefit of any private stockholder or individual; (I) Property or services which the State is prohibited by the constitution or laws of the United States or by the constitution of the State from taxing or further taxing and tangible personal property exempted from taxation by the Arkansas Compensating (Use) Tax Act of 1949, as amended; (m) Isolated sales not made by an established business; (n) Cotton, seed cotton, lint cotton, bated cotton, whether compressed or not, or cotton seed in its original condition; seed for use in commercial production of an agricultural product or of seed; raw products from the farm, orchard or garden, where such sale is made by the producer of such raw products directly to the consumer and user; livestock, poultry, poultry products and dairy products of producers owning not more than five cows; and baby chickens; (o) Foodstuffs to governmental agencies for free distribution to any public, penal and eleemosynary institutions or for free distribution to the poor and needy, and the rental or sale of medical equipment, for the benefit of Persons enrolled in and eligible for Medicare or Medicaid programs; (p) Tangible personal property or services provided to any hospital or sanitarium operated for • charitable and nonprofit purposes or any nonprofit organization whose sole purpose is to provide temporary housing to the family members of patients in a hospital or sanitarium; (q) Used tangible personal property when the used property was (I) traded in and accepted by the seller as part of the sale of other tangible personal property and (2) the Arkansas Gross Receipts Tax was collected and paid on the total amount of consideration for the sale of the other tangible personal property without any deduction or credit for the value of the used tangible personal property; provided, however, this exemption does not apply to transactions involving used automobiles, used mobile homes, or used aircraft; (r) Unprocessed crude oil; (s) Tangible personal property consisting of machinery and equipment used directly in producing, manufacturing, fabricating, assembling, processing, finishing or packaging of articles of commerce at (i) new manufacturing or processing plants or facilities in the State or (ii) existing manufacturing or processing plants or facilities in the State if the tangible personal property is used to replace existing machinery and equipment; (t) Property consisting of machinery and equipment required by State law or regulation to be installed and utilized by manufacturing or processing plants or facilities to prevent or reduce air and/or water pollution or contamination; (u) Electricity used in the manufacture of aluminum metal by the electrolytic reduction process and sale of articles sold on the premises of the Arkansas Veterans Home; (v) Automobile parts which constitute "core charges," which are received for the purpose of securing a trade-in for the article purchased; (w) Bagging and other packaging and tie materials sold to and used by cotton gins for packaging and/or tying baled cotton and from the sale of twine which is used in the production of tomato crops; (x) Prescription drugs by licensed pharmacists, hospitals, oncologists or dispensing physicians, and • oxygen sold for human use on prescription of a licensed physician; 14 (y) Property or services to humane societies; • (z) Vessels, barges and towboats of at least fifty tons load displacement and parts and labor used in the repair and construction of the same; (aa) Property or sales to all orphans' homes, or children's homes, which are not operated for profit and whether operated by a church, religious organization or other benevolent charitable association; (bb) Agricultural fertilizer, agricultural limestone and agricultural chemicals; (cc) Sale of tickets or admissions, by municipalities, to places of amusement, to athletic entertainment, recreational events, or fees for the privilege of having access to or the use of amusement, entertainment, athletic or recreational facilities, including free or complimentary passes, tickets, admissions, dues or fees; (dd) Rental and/or lease of specialized equipment used in the filming of a motion picture; (ee) New and used farm machinery and equipment; (ff) New automobiles to a veteran of the United States Armed Services who is blind as a result of a service connected injury; (gg) Motor vehicles sold to municipalities, counties, school districts, and state supported colleges and universities; (hh) School buses sold to school districts and, in certain cases, to other purchasers providing school bus service to school districts; (ii) Natural gas, LP gas, or electricity sold to a processor or mining company engaging in open pit and underground mining or processing of bauxite; (jj) Feedstuffs used in the commercial production of livestock or poultry; (kk) New custom manufactured homes constructed from materials on which the State sales tax has been paid; • (II) The first 500 kilowatt hours of electricity per month and the total franchise taxes billed to each residential customer whose household income is less than $12,000 per year; (mm) Waste fuel used in producing, manufacturing, fabricating, assembling, processing, finishing, or packaging of articles of commerce at manufacturing or processing plants or facilities in the State; (nn) Electricity and natural gas to qualified steel manufacturers; (oo) Tangible personal property lawfully purchased with food stamps, food coupons, food instruments or vouchers in connection with certain Federal programs; (pp) Publications sold through regular subscriptions; (qq) Tickets for admission to athletic events and interscholastic activities of public and private elementary and secondary schools in the State and tickets for admission to athletic events at public and private colleges and universities in the State; (rr) Prescriptive adaptive medical equipment and prescriptive disposable medical equipment; (ss) Insulin and test strips for testing blood sugar levels in humans; (tt) Telephone instruments sent into the State for refurbishing or repair and then shipped back to the state of origin; (uu) Industrial metal rollers sent into the State for repair or remanufacture and then shipped back to the state of origin; (vv) New motor vehicles purchased by non-profit organizations and used for the performance of contracts with the Department of Human Services, and new motor vehicles purchased with Urban Mass Transit Administration funds if (i) the vehicles are purchased in lots of ten vehicles, (ii) meet minimum State specifications, • and (iii) vehicles are used for transportation under the Department of Human Services' programs for the aging, disabled, mentally ill, and children and family services; (ww) Motor fuels to owners or operators of motor buses operated on designated streets according to regular schedule and under municipal franchise which are used for municipal transportation purposes; 15 (xx) Parts or other tangible personal property incorporated into or which become a part of commercial jet aircraft component or subcomponent; (yy) Transfer of fill material by a business engaged in transporting or delivering fill material; (zz) Long-term leases, thirty days or more, of commercial trucks used for interstate transportation of goods tinder certain conditions; (aaa) Foodstuffs to nonprofit agencies; (bbb) Tangible personal property consisting of forms constructed of plaster, cardboard, fiberglass, natural fibers, synthetic fibers or composites and which are destroyed or consumed during the manufacture of the item; (ccc) Natural gas used as a fuel in the process of manufacturing glass; (ddd) Sales to Fort Smith Clearinghouse; (eee) Substitute fuel used in producing, manufacturing, fabrication, assembling, processing, finishing or packaging of articles at manufacturing facilities or processing plants in the State; (fff) Railroad rolling stock used in transporting persons or property in interstate commerce; (ggg) Parts or other tangible personal property which become apart of railroad parts, railroad cars and equipment brought into the State for the purpose of being repaired, refurbished, modified or converted within the State; (hhh) Fire protection and emergency equipment to be owned by and exclusively used by a volunteer fire department, and supplies and materials to be used in the construction and maintenance of volunteer fire departments; and (iii) Gas produced from biomass and sold for the purpose of generating energy to be sold to the gas producer. Reference is made to "The Arkansas Gross Receipts Act of 1941," Title 26, Chapter 52 of the Arkansas Code of • 1987 Annotated, for more information concerning the sales tax. Use Tax. The use tax portion of the Sales and Use Tax is levied on every Person for the privilege of storing, using, distributing or consuming in the City any article of tangible personal property purchased for storage, use, distribution or consumption. The use tax applies to the use, distribution, storage or consumption of every article of tangible personal property except as hereinafter provided. The use tax does not apply to aircraft equipment, and railroad parts, cars, and equipment, nor to tangible personal property owned or leased by aircraft, automotive or railroad companies brought into the City solely and exclusively for refurbishing, conversion, or modification within the City or storage for use outside or inside the City regardless of the length of time any such property is so stored in the City. The use tax is levied on the following described tangible personal property: (a) - Tractors, trailers, semi -trailers, trucks, buses and other rolling stock, including replacement tires, used directly in the transportation of persons or property in intrastate or interstate common carrier transportations; (b) Property (except fuel) consumed in the operation of railroad rolling stock,: (c) Transmission lines and pumping or pressure control equipment used directly in or connected to the primary pipeline facility engaged in intrastate or interstate common carrier transportation of property; (d) Airplanes and navigation instruments used directly in or becoming a part of flight aircraft engaged in transportations of persons or property in regular scheduled intrastate or interstate common carrier transportation; (e) Exchange equipment, lines, boards and all accessory devices used directly in and connected to the primary facility engaged in the transmission of messages; (f) Transmission and distribution pipelines in pumping or pressure control and equipment used in connection therewith used directly in primary pipeline facility for the purpose of transporting and delivering natural gas; (g) Transmission and distribution lines, pumping machinery and controls used in connection therewith • in cleaning or treating equipment of primary water distribution system; 16 (h) Property of public electric power companies consisting of all machinery and equipment including reactor cores and related accessory devices used in the generation and production of electric power and energy and • transmission facilities consisting of the lines, including poles, towers and other supporting structures, transmitting electric power and energy together with substations located on or attached to such lines; and (1) Computer software. Exemptions from Use Tax. Some of the property exempted from the use tax by the General Assembly of the State is as follows: (a) Property, the storage, use or consumption of which the State is prohibited from taxing under the Constitution or laws of the United States of America or the State; (b) Sales of tangible personal property in which the tax under the Arkansas Gross Receipts Act of 1941 is levied; (c) Tangible personal property which is exempted from the sales tax under the Arkansas Gross Receipts Act of 1941; (d) Feedstuffs used in the commercial production of livestock or poultry in the State; (e) Unprocessed crude oil; (t) Machinery and equipment used directly in producing, manufacturing, fabricating, assembling, processing, finishing or packaging of articles of commerce at manufacturing or processing plants or facilities in the State, including facilities and plants for manufacturing feed, processing of poultry and/or eggs and livestock and the hatching of poultry and such equipment is either (I) purchased to create or expand manufacturing or processing plants in the State, (2) purchased to replace existing machinery and used directly in producing, manufacturing, fabricating, assembling, processing, finishing or packaging of articles of commerce at manufacturing or processing plants in the State, or (3) required by State law to be installed and utilized by manufacturing or processing plants to prevent or reduce air and/or water pollution or contamination; (g) Custom manufactured homes constructed with materials on which the sales or use tax has once • been paid; (h) Aircraft, aircraft equipment, railroad parts, cars, and equipment, and tangible personal property owned or leased by aircraft, airmotive, or railroad companies, brought into the State solely and exclusively for refurbishing, conversion, or modification or for storage for use outside or inside the State; (i) Vessels, barges, and towboats of at least 50 tons load displacement and parts and labor used in the repair and construction of them; (j) Motor fuels to the owners or operators of motor buses operated on designated streets according to regular schedule, under municipal franchise, which are used for municipal transportation purposes; (k) Agricultural fertilizer, agricultural limestone, agricultural chemicals, including agricultural pesticides and herbicides used in commercial production of agricultural products, and vaccines, medications, and medicinal preparations, used in treating livestock and poultry being grown for commercial purposes and other ingredients used in the commercial production of yeast; (I) All new and used motor vehicles, trailers or semi -trailers that are purchased for a total consideration of less than $2,000; and (m) Any tangible personal property used, consumed, distributed, or stores in this State upon which a like tax, equal to or greater than the Arkansas Compensating (Use) Tax, has been paid in another state. Reference is made to "The Arkansas Compensation (Use) Tax Act of 1949," Title 26, Chapter 53 of the Arkansas Code of 1987 Annotated, for more information concerning the use tax. Administration. Pursuant to the Act, the Commissioner of Revenues of the State (the "Commissioner") performs all functions incidental to the administration, collection, enforcement and operation of the Sales and Use Tax. All Sales and Use Tax receipts collected, less certain charges payable and retainage due the commissioner for • administrative services in the amount of 3% of the gross Sales and Use Tax receipts, shall be remitted by the State Treasurer to the Trustee monthly. See the caption "SUMMARY OF THE INDENTURE — Application of Sales and Use Tar Receipts" herein. 17 Future Sales and Use Tax Receipts. Sales and Use Tax receipts will be contingent upon the sale and use of property and services within the City, which activity is generally dependent upon economic conditions within the City. Also, Sales and Use Tax receipts may be affected by changes to transactions exempted from the Sales and Use • Tax made by legislation adopted by the General Assembly of the State or by the people of the State in the form of a constitutional amendment or initiated act. In the past the General Assembly of the State has considered new exemptions to the Sales and Use Tax, such as food sales, which, if adopted, would materially reduce Sales and Use Tax receipts. The City has no control over actions of the General Assembly or the people of the State and cannot predict whether changes to the Sales and Use Tax may be made. Accordingly, the City cannot predict with certainty the expected amount of Sales and Use Tax receipts to the be received and, therefore, there can be no assurance that Sales and Use Tax receipts will be sufficient to pay the principal of and interest on the Bonds. DEFINITIONS OF CERTAIN TERMS The following are definitions of certain terms used in this Official Statement: "Account" means an Account established by Article V of the Indenture. "Act" means the Local Government Bond Act of 1985, codified as Arkansas Code Annotated (1998 Repl. & Supp. 2001) Sections 14-164-301 et seq., as from time to time amended. "Additional Bonds" means Bonds in addition to the Series 2002 Bonds which are issued under the provisions of Section 212 of the Indenture. "Amendment 62" means Amendment No. 62 to the Constitution of Arkansas, approved by the voters of the State on November 6, 1984. "Annual Debt Service" means, with respect to all or any particular amount of Bonds or any RLF Loan, as the case may be, the Debt Service for any particular Fiscal Year required to be paid or set aside during such Fiscal Year, less the amount of such payment which is provided from the proceeds of the sale of Bonds or which is drawn under an RLF Loan or from sources other than Sales and Use Tax receipts. "Authorized Representative" means either the Mayor or Administrative Service Director of the City and such additional persons as from time to time may be designated to act on behalf of the City by a Certificate furnished to the Trustee containing the specimen signature thereof and executed on behalf of the City by its Mayor. "Authorizing Ordinance" means Ordinance No. 4389, adopted by the City on May 7, 2002, which authorized the issuance of the Series 2002 Bonds pursuant to the Indenture. "Beneficial Owner" means any Person who acquires beneficial ownership interest in a Bond held by the Securities Depository. In determining the Beneficial Owner of any Bond, the Trustee may rely exclusively upon written representations made and information given to the Trustee by the Securities Depository or its Participants with respect to any Bond held by the Securities Depository in which a beneficial ownership interest is claimed. "Bond Counsel" means any firm of nationally recognized municipal bond counsel selected by the City and acceptable to the Trustee. "Bond Fund" means the fund by that name created and established in the Indenture. "Bonds" mean the Series 2002 Bonds and all Additional Bonds issued by the City pursuant to the Indenture. Except to the extent provided in Section 209 of the Indenture and except for refunding bonds issued under the Indenture, the aggregate principal amount of Bonds and any RLF Loan incurred by the City shall not exceed $125,000,000. "Book -Entry System" means the book -entry system maintained by the Securities Depository and described in the Indenture. "Certificate" means a document signed by an Authorized Representative of the City attesting to or acknowledging the circumstances or other matters therein stated. "City" means the City of Fayetteville, Arkansas, a municipality and political subdivision under the laws of the State of Arkansas. "Closing Date" means, with respect to any series of Bonds, the date upon which there is an exchange of • such series of Bonds for the proceeds representing the purchase price for such series of Bonds by the Original Purchaser or Purchasers thereof. IS "Code" means the Internal Revenue Code of 1986, as from time to time amended, and applicable regulations issued or proposed thereunder. • "Continuing Disclosure Agreement" means, collectively, each Continuing Disclosure Agreement between the City and the Trustee, dated the date of issuance and delivery of a series of Bonds, as originally executed and as amended from time to time in accordance with the terms thereof. "Costs of Issuance" means all items of expense payable or reimbursable directly or indirectly by the City and related to the authorization, sale and issuance of the Bonds, including, but not limited to, underwriting discounts, fees and expenses, election expenses, publication expenses, expenses of printing, reproducing, filing and recording documents, initial fees and charges of the Trustee and any Paying Agent, fees and expenses for legal, accounting and other professional services, rating fees, costs of securing any credit enhancement for the Bonds, costs of execution, transportation and safekeeping of the Bonds, and other costs, charges and fees incurred in connection with the foregoing. "Costs of Issuance Fund" means the fund by that name created and established in the Indenture. "Debt Service" means, with respect to all or any particular amount of Bonds or any RLF Loan, as the case may be, the total as of any particular date of computation and for any particular period of the scheduled amount of interest and amortization of principal payable on such Bonds and any RLF Loan, excluding amounts scheduled during such period which relate to principal which has been retired before the beginning of such period. "Debt Service Reserve Fund" means the fund by that name created and established in the Indenture. "Election Ordinance" means Ordinance No. 4327, adopted by the City Council on August 7, 2001, pursuant to which there was submitted to the qualified electors of the City the question of the issuance of the Bonds. "Event of Default" means any event of default specified in Section 801 of the Indenture. "Fiscal Year" means the 12 -month period used, at any time, by the City for accounting purposes, which may be the calendar year. • "Fund" means a fund established by the Indenture. "Government Securities" means (i) bonds, notes, certificates of indebtedness, treasury bills or other securities constituting direct obligations of, or obligations on which the full and timely payment of principal and interest is fully and unconditionally guaranteed by, the United States of America (including any such securities issued or held in book -entry form on the books of the Department of Treasury of the United States of America), and (ii) evidences of direct ownership or proportionate or individual interest in future interest or principal payments on specified direct obligations of, or obligations on which the full and timely payment of principal and interest is fully and unconditionally guaranteed by, the United States of America, which obligations are held by a bank or trust company organized and existing under the laws of the United States of America or any state thereof in the capacity of custodian in form and substance satisfactory to the Trustee. "Holder" or "Bondholder" or "owner of the Bonds" means the registered owner of any Bond. "Indenture" means the Trust Indenture dated as of June 1, 2002, between the City and the Trustee, pursuant to which the Bonds are issued, and any amendments and supplements thereto. "Investment Securities" means, if and to the extent the same are at the time legal for investment of Funds and Accounts held under the Indenture: (a) Government Securities; (b) bonds, notes or other obligations of any state of the United States of America or any political subdivision of any state, which at the time of their purchase are rated in either of the two highest rating categories by a nationally recognized Rating Agency; (c) certificates of deposit or time or demand deposits constituting direct obligations of any bank, bank holding company, savings and loan association or trust company organized under the laws of the United States of America or any state thereof (including the Trustee or any of its affiliates), except that • investments may be made only in certificates of deposit or time or demand deposits which are: (1) insured by the Federal Deposit Insurance Corporation, or any other similar United States Government deposit insurance program then in existence; or 19 (2) continuously and fully secured by Government Securities, which have a market value, exclusive of accrued interest, at all times at least equal to the principal amount of such certificates of deposit or time or demand deposits; (d) short term discount obligations of the Federal National Mortgage Association and the Government National Mortgage Association; and (e) money market mutual funds (1) that invest in Government Securities or that are registered with the federal Securities and Exchange Commission (SEC), meeting the requirements of Rule 2a-7 under the Investment Company Act of 1940, and (2) that are rated in either of the two highest categories by a nationally recognized Rating Agency. "Mayor" means the person holding the office and performing the duties of the Mayor of the City. "Original Purchaser" means the first purchaser(s) of a series of Bonds from the City. "Outstanding" means, as of any date of computation, Bonds theretofore or thereupon being delivered under the Indenture, except: (a) Bonds cancelled at or prior to such date or delivered to or acquired by the Trustee at or prior to such date for cancellation; (b) Bonds deemed to be paid in accordance with Article VII of the Indenture; and (c) Bonds in lieu of or in exchange or substitution for which other Bonds shall have been authenticated and delivered pursuant to the Indenture. "Participants" means those financial institutions for whom the Securities Depository effects book -entry transfers and pledges of securities deposited with the Securities Depository in the Book -Entry System, as such listing of Participants exists at the time of such reference. "Paying Agent" means any bank or trust company named by the City as the place at which the principal of and premium, if any, and interest on the Bonds are payable. "Person" means any natural person, firm, association, corporation, limited liability company, partnership, • joint stock company, joint venture, trust, unincorporated organization or firm, or a government or any agency or political subdivision thereof or other public body.. "Project" means the acquisition, construction, reconstruction, extension, improving and equipping of System wastewater treatment plants, sewerage and related facilities. "Project Costs" means, to the extent permitted by the Act or other applicable laws, with respect to the Project, all costs of planning, designing, purchasing, acquiring, constructing, improving, enlarging, extending, repairing, financing and placing in operation, including obtaining governmental approvals, certificates, permits and licenses with respect thereto, heretofore or hereafter paid or incurred by or on behalf of the City and which shall include, but shall not be limited to: (a) interest accruing in whole or in part on the Bonds prior to and during construction of the Project, including all amounts required by the Indenture to be paid from the proceeds of the Bonds into the Bond Fund; (b) preliminary investigation and development costs, engineering fees, contractors' fees, labor costs, the cost of materials, equipment, utility services and supplies, costs of obtaining permits, licenses and approvals, costs of real property, insurance premiums, legal and financing fees and costs, administrative and general costs, and all other costs properly allocable to the acquisition, construction and equipping of the Project and placing the same in operation; (c) all costs relating to injury and damage claims arising out of the acquisition, construction or equipping of the Project; (d) all other costs incurred in connection with, and properly allocable to, the acquisition, construction and equipping of the Project; and (e) amounts to pay or reimburse the City or any City fund for expenses of the City incident • and properly allocable to such planning, designing, purchasing, acquiring, constructing, improving, enlarging, extending, repairing, financing and placing in operation of the Project. 20 "Project Fund" means the fund by that name created and established in the Indenture. • "Qualified Engineer" means an independent consulting engineer or firm of independent consulting engineers not in the regular employ of the City. "RLF Loan" means any loan to the City under the Arkansas Soil and Water Conservation Commission Revolving Loan Fund Program, which loan is to be secured by Sales and Use Tax receipts on a parity basis with the Bonds. Any RLF Loan may, but need not, be structured in the form of an Additional Bond or Additional Bonds issued hereunder. "Rating Agency" means Moody's Investors Service, Standard & Poor's Ratings Services, a Division of The McGraw-Hill Companies, Inc., or Fitch, Inc., and their respective successors and assigns. If any such corporation ceases to act as a securities rating agency, the City may appoint any nationally recognized securities rating agency as a replacement. "Rebate Fund" means the fund by that name created and established in the Indenture. "Record Date" means the fifteenth day of the calendar month preceding the calendar month in which an interest payment date on the Bonds occurs. "Redemption Fund" means the fund by that name established in the Indenture. "Requisition" means a written requisition of the City, consecutively numbered, signed by an Authorized Representative including, without limitation, the following with respect to each payment requested: (i) the name of the Person or party to whom payment is to be made and the purpose of the payment, (ii) the amount to be paid thereunder; (iii) that such amount has not been previously paid by the City and is justly due and owing to the Person(s) named therein as a proper payment or reimbursement of a Project Cost; and • (iv) that no Event of Default exists under the Indenture and that, to the knowledge of the Authorized Representative, no event has occurred and continues which with notice or lapse of time or both would constitute an Event of Default under the Indenture. "Reserve Requirement" means, at any particular time, an amount equal to 5% of the aggregate Outstanding principal amount of Outstanding Bonds of all series, except as may otherwise be provided in Section 508 of the Indenture with respect to RLF Loans. "Revenue Fund" means the fund by that name created and established in the Indenture. "Sales and Use Tax" means the three-quarters of one percent (0.75%) city-wide sales and use tax authorized under the Act which has been levied within the City pursuant to the Election Ordinance, the collection of which tax commenced on April 1, 2002, as approved by the voters of the City. Receipts of the Sales and Use Tax are pledged to the payment of Debt Service on the Bonds. "Securities Depository" means The Depository Trust Company, New York, New York, or its nominee, and its successors and assigns. "Series 2002 Bonds" means the City's Sales and Use Tax Capital Improvement Bonds, Series 2002, issued under and secured by the Indenture in the aggregate principal amount of $25,000,000. "State" means the State of Arkansas. "Supplemental Indenture" means any indenture supplemental to or amendatory of the Indenture. "Surplus Tax Receipts" shall have the meaning ascribed to such term in Section 503 of the Indenture. "System" means the City's combined water and sewer utility system. "Tax Regulatory Agreement" means with respect to any series of Bonds, that Tax Regulatory Agreement of the City relating to maintenance of the excludability of interest on such Bonds from gross income for federal income • tax purposes, delivered in connection with the issuance of such series of Bonds. 21 "Trustee" means the banking corporation or association designated as Trustee in the Indenture, and its successor or successors as such Trustee. The original Trustee is Simmons First Trust Company, N.A. "Trust Estate" means the property described in the granting clauses of the Indenture. SUMMARY OF THE INDENTURE The following statements are brief summaries of certain provisions of the Indenture. The statements do not purport to be complete, and reference is made to the Indenture, copies of which are available for examination at the offices of the Administrative Services Director of the City, for a full statement thereof. Funds and Accounts. Receipts of the Sales and Use Tax are pledged by the Indenture to the payment of the principal of and interest on the Bonds. The following Funds and Accounts have been established with the Trustee in connection with the Bonds: Funds and Accounts Revenue Fund Bond Fund, and a Principal Account and an Interest Account therein Debt Service Reserve Fund Redemption Fund Project Fund Cost of Issuance Fund Rebate Fund Application of Sales and Use Receipts. The application of Sales and Use Tax receipts is as follows: • (a) Revenue Fund. All Sales and Use Tax receipts shall, as and when received, be deposited into the Revenue Fund. All moneys at any time in the Revenue Fund shall be applied on a monthly basis to the payment of Debt Service on the Bonds and any RLF Loans, to the maintenance of the Debt Service Reserve Fund, to the payment of any arbitrage rebate due under Section 148(f) of the Code, to the payment of fees and expenses of the • Trustee and any Paying Agent, and to the early redemption of the Bonds, at the times and in the amounts set forth as follows: (b) Bond Fund. Upon receipt, but in no event later than the last day of each month in which Sales and Use Tax receipts are deposited in the Revenue Fund, commencing no later than June 30, 2002, there shall be transferred from the Revenue Fund (i) into the Interest Account of the Bond Fund, an amount equal to 1/6 of the interest on the Bonds due on the next interest payment date and an amount equal to the interest component of any monthly payment prescribed with respect to any RLF Loan, and (ii) into the Principal Account of the Bond Fund, an amount equal to 1/12 of the principal on the Bonds due on the next principal payment date (including mandatory sinking fund redemptions) and an amount equal to the principal component of any monthly payment prescribed with respect to any RLF Loan. Moneys in the Bond Fund shall be used solely for the purpose of paying Annual Debt Service on the Bonds or RLF Loans or for redemption of the Bonds, as provided in the Indenture. The Trustee shall withdraw from the Bond Fund, on the date of any principal or interest payment, an amount equal to such payment for the sole purpose of paying the same. If Sales and Use Tax receipts in the Revenue Fund are insufficient to make the required monthly payment into the Bond Fund, the amount of any such deficiency in the payment made shall be added to the amount otherwise required to be paid into the Bond Fund not later than last day of the next succeeding month. When the moneys held in the Revenue Fund, the Bond Fund, the Debt Service Reserve Fund and the Redemption Fund shall be and remain sufficient to pay in full the principal of and interest on all Bonds and RLF Loans then Outstanding in accordance with the Indenture, together with the required fees and expenses to be paid or reimbursed to the Trustee and any Paying Agent, the City shall have no further obligation to make payments into such Funds and the levy of the Sales and Use Tax shall cease. (c) Debt Service Reserve Fund. See the caption "SECURITY FOR THE BONDS — Debt Service Reserve" herein. (d) Redemption Fund. After making the required deposits into the Bond Fund, into the Debt Service Reserve Fund, and into the Rebate Fund, and after paying the fees and expenses of the Trustee and any Paying 22 Agent, there shall be paid from the Revenue Fund into the Redemption Fund all remaining moneys in the Revenue Fund (the "Surplus Tax Receipts"). Moneys in the Redemption Fund shall be transferred to the Principal Account of • the Bond Fund at such times as may be necessary to effectuate redemptions of the Bonds on the first available redemption date. So long as the Series 2002 Bonds are Outstanding, all Surplus Tax Receipts shall be applied to the redemption of the Series 2002 Bonds prior to maturity. See the captions "THE SERIES 2002 BONDS — Redemption" and "PROJECTED MANDATORY REDEMPTIONS" herein. (e) Project Fund. A portion of the proceeds of the Series 2002 Bonds shall be deposited in the Project Fund. See the caption "ESTIMATED SOURCES AND USES OF FUNDS" herein. Amounts in the Project Fund shall be expended only for the payment of Project Costs upon the submission of Requisitions by the City to the Trustee. The Trustee shall only make payments from the Project Fund pursuant to and in accordance with Requisitions. Within ninety (90) days following completion of the portion of the Project being financed with a particular series of Bonds, the City shall deliver to the Trustee its Certificate stating that the applicable portion of the Project is complete and the Trustee shall transfer the remaining moneys in the Project Fund relating to such series of Bonds (save and except moneys needed to satisfy unpaid Project Costs) to the Redemption Fund for application to the retirement of Bonds. See the caption "THE SERIES 2002 Bonds — Redemption" herein. (I) Cost of Issuance Fund. A portion of the proceeds of the Series 2002 Bonds shall be deposited to the credit of the Cost of Issuance Fund. The Trustee shall pay those Costs of Issuance as directed by the City pursuant to a Certificate delivered on a Closing Date. After all Costs of Issuance have been paid with respect to a series of Bonds, any remaining moneys in the Cost of Issuance Fund shall be transferred to the Interest Account of the Bond Fund. (g) Rebate Fund. The Trustee shall establish and maintain, separate and apart from any other Funds and Accounts established and maintained under the Indenture, the Rebate Fund, which Fund is not pledged to the payment of any Bonds or RLF Loan. Subject to transfer to the United States in payment of any arbitrage rebate due under Section 148(f) of the Code, all moneys at any time deposited in the Rebate Fund shall be held by the Trustee in trust, and neither the City nor the Owner of any Bond shall have any rights in or claim to such money. Any amounts remaining in the Rebate Fund after payment in full of the rebate amount owing to the United States, within sixty (60) days after the date on which the last Bond is redeemed, shall be transferred to the Revenue Fund. • Investment of Funds. At the direction of the City or absent such direction, the Trustee shall invest moneys in Funds or Accounts held by the Trustee in Investment Securities with maturity or redemption dates consistent with the times at which said moneys will be required for the purposes provided in the Indenture; provided, however, the stated maturity dates of Investment Securities of Debt Service Reserve Fund moneys shall not exceed five years from the date of investment therein. Moneys in separate Funds or Accounts may be commingled for the purpose of investment. Obligations purchased as an investment of moneys in any Fund or Account created by the Indenture shall be deemed at all times to be a part of such Fund or Account, and any income or loss due to an investment thereof shall be charged to the respective Fund or Account for which the investment was made except as otherwise provided in the Indenture. Investments in any Fund or Account shall be evaluated at least annually by the Trustee. For the purpose of determining the amount in any Fund or Account, the City and the Trustee shall value all Investment Securities credited to such Fund or Account at the price at which such Investment Securities are redeemable by the Holders or owners thereof at their option if so redeemable, or, if not so redeemable, at the lesser of (i) the cost of such Investment Securities minus the amortization of any premium or plus the amortization of any discount thereon and (ii) the market value of such Investment Securities, provided that Investment Securities credited to the Debt Service Reserve Fund, if not so redeemable, shall be valued at the cost thereof minus the amortization of any premium or plus the amortization of any discount thereon. Valuation of Funds and Accounts. In determining the value of any Fund or Account held by the Trustee under the Indenture, the Trustee shall credit Investment Securities at the fair market value thereof, as determined by the Trustee by any method selected by the Trustee in its reasonable discretion. No less frequently than annually, and in any event within thirty (30) days prior to the end of each Fiscal Year, the Trustee shall determine the value of each Fund and Account held under the Indenture and shall report such determination to the City. • The Trustee shall sell or present for redemption any Investment Securities as necessary in order to provide money for the purpose of making any payment required under the Indenture, and the Trustee shall not be liable for any loss resulting from any such sale. 23 Responsibility of Trustee. The Trustee shall not be responsible or liable for any loss suffered in connection with any investment of moneys made by it at the direction of the City. Instruments of Further Assurance. At any and all times the City shall, so far as it may be authorized by law, • pass, make, do, execute, acknowledge and deliver, all and every such further resolutions, ordinances, acts, deeds, conveyances, assignments, transfers and assurances as may be necessary or desirable for the better assuring, conveying, granting, pledging, assigning and confirming of all and singular the receipts from the Sales and Use Tax and all other moneys pledged or assigned by the Indenture, or intended so to be, or which the City may become bound to pledge or assign. Tax Covenants. The City shall not use or permit the use of any Bond proceeds or any other funds of the City, directly or indirectly, in any manner, and will not take or permit to be taken any other action or actions which would adversely effect the exclusion of interest on any Bond from gross income for federal income tax purposes. No part of the proceeds of the Bonds shall at any time be used, directly or indirectly, to acquire securities or obligations the acquisition of which would cause any of such Bonds to be an "arbitrage bond" as defined in Sections 148(a) and (b) of the Code. The City agrees that so long as any of the Bonds remain Outstanding, it will comply with the provisions of each applicable Tax Regulatory Agreement. Drawdowns Under RLF Loans. The City covenants and agrees not to requisition amounts available under any RLF Loan unless the Sales and Use Tax receipts during the Fiscal Year immediately preceding the Fiscal Year in which such Requisition is to occur were not less than 125% of the maximum Annual Debt Service on all Outstanding Bonds and any RLF Loan following such Requisition. Defeasance. Any Bond shall be deemed to be paid within the meaning of the Indenture when payment of the principal of and premium, if any, and interest on such Bond (whether at maturity or upon redemption as provided in the Indenture, or otherwise), either (i) shall have been made or caused to be made in accordance with the terms thereof, or (ii) shall have been provided for by irrevocably depositing with the Trustee, in trust and irrevocably set aside exclusively for such payment, (1) moneys sufficient to make such payment or (2) Government Securities (provided that such deposit will not affect the tax-exempt status of the interest on any of the Bonds or cause any of the Bonds to be classified as "arbitrage bonds" within the meaning of Section 148(a) of the Code, as reflected in an opinion of Bond Counsel delivered to the Trustee), maturing as to principal and interest in such amounts and at such times as will provide sufficient moneys to make such payment, and all necessary and proper fees, compensation and • expenses of the Trustee and any Paying Agent pertaining to the Bonds with respect to which such deposit is made shall have been paid or the payment thereof provided for to the satisfaction of the Trustee and any said Paying Agent. Events of Default. Each of the following events shall constitute and is referred to in the indenture as an "Event of Default": (a) Default in the due and punctual payment of any interest on any Bond; (b) Default in the due and punctual payment of the principal of or premium, if any, on any Bond, whether at the stated maturity thereof, or upon proceedings for redemption thereof, or upon the maturity thereof by declaration; (c) Default in the payment of any other amount required to be paid under the Indenture or the performance or observance of any other of the covenants, agreements or conditions contained in the Indenture, or in the Bonds issued under the Indenture, and continuance thereof for a period of sixty (60) days after written notice specifying such failure and requesting that it be remedied, shall have been given to the City by the Trustee, which may give such notice in its discretion and shall give such notice at the written request of Holders of not less than fifty-one percent (51%) in aggregate principal amount of the Bonds then Outstanding, unless the Trustee, or the Trustee and Holders of an aggregate principal amount of Bonds not less than the aggregate principal amount of Bonds the Holders of which requested such notice, as the case may be, shall agree in writing to an extension of such period prior to its expiration; provided, however, if the failure stated in the notice cannot be corrected within the applicable period, the Trustee will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by the City within such period and is being diligently pursued; (d) The filing of a petition in bankruptcy by or against the City under the United States Bankruptcy Code or the commencement of a proceeding by or against the City under any other law concerning insolvency, • reorganization or bankruptcy; and 24 (e) If the State has limited or altered the rights of the City pursuant to the Act, as in force on the date of the Indenture, to fulfill the terms of any agreements made with the Trustee or the Bondholders or in any way • impaired the rights and remedies of the Trustee or the Bondholders while any Bonds are Outstanding. The term "default" as used in clauses (a), (b) and (c) above shall mean default by the City in the performance or observance of any of the covenants, agreements or conditions on its part contained in the Indenture, or in the Bonds Outstanding thereunder, exclusive of any period of grace required to constitute a default an "Event of Default" as described above. Acceleration. Upon the occurrence of an Event of Default, the Trustee may, and upon the written request of the Holders of not less than 51% in aggregate principal amount of Bonds Outstanding shall, by notice in writing delivered to the City, declare the principal of all Bonds then Outstanding, together with any premium and the interest accrued thereon, immediately due and payable, and such principal and interest shall thereupon become and be immediately due and payable. Other Remedies; Rights of Bondholders. Upon the occurrence of an Event of Default, the Trustee may, as an alternative, pursue any available remedy by suit at law or in equity, including, without limitation, mandamus to enforce the payment of the principal of and premium, if any, and interest on the Bonds then Outstanding. If an Event of Default shall have occurred, and if it shall have been requested so to do by the Holders of 51% in aggregate principal amount of Bonds Outstanding and if it shall have been indemnified as provided in the Indenture, the Trustee shall be obligated to exercise such one or more of the rights and powers conferred upon it by the Indenture as the Trustee, being advised by counsel, shall deem most expedient in the interests of the Bondholders. No remedy by the terms of the 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 under the Indenture 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 under the Indenture, whether by the Trustee or by the Bondholders, shall extend to or shall affect any subsequent default or Event of Default or shall impair any rights or remedies consequent thereon. Rights and Remedies of Bondholders. No Holder of any Bond shall have any right to institute any suit, action or proceeding in equity or at law for the enforcement of the Indenture or for the execution of any trust thereof or for the appointment of a receiver or any other remedy thereunder, unless a default has occurred of which the Trustee has been notified as provided in the Indenture, or of which by the Indenture it is deemed to have notice, nor unless such default shall have become an Event of Default and the Holders of not less than 51% in aggregate principal amount of Bonds Outstanding shall have made written request to the Trustee and shall have offered it reasonable opportunity either to proceed to exercise the powers 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 the Indenture nor unless the Trustee shall thereafter fail or refuse to exercise the powers granted, or to institute such action, suit, or proceeding in its own name; and such notification, request and offer of indemnity are declared in every such case at the option of the Trustee to be conditions precedent to the execution of the powers and trusts of the Indenture, and to any action or cause of action for the enforcement of the Indenture or for the appointment of a receiver or for any other remedy thereunder; it being understood and intended that no one or more Holders of the Bonds shall have any right in any manner whatsoever to affect, disturb or prejudice the lien of the Indenture by action of the Holder or Holders or to enforce any right under the Indenture except in the manner therein provided, and that all proceedings at law or in equity shall be instituted, held and maintained in the manner therein provided for the equal benefit of the Holders of all Bonds Outstanding thereunder. Nothing in the Indenture contained shall, however, affect or impair the right of any Bondholders to enforce the payment of the principal of and premium, if any, and interest on any Bonds at and after the maturity thereof, or the obligation of the City to pay the principal of and premium, if any, and interest on each of the Bonds issued under the Indenture to the respective Holders thereof at the time and place in • said Bonds expressed. Supplemental Indentures Not Requiring Consent of Bondholders. The City and the Trustee may, from time to time and at any time, without the consent of or notice to the Bondholders, enter into Supplemental Indentures as follows: 25 (a) to cure any formal defect, omission, inconsistency or ambiguity in the Indenture; (b) to grant to or confer or impose upon the Trustee for the benefit of the Bondholders any additional rights, remedies, powers, authority, security, liabilities or duties which may lawfully be granted, conferred or imposed and which are not contrary to or inconsistent with the Indenture as theretofore in effect, provided that no such additional liabilities or duties shall be imposed upon the Trustee without its consent; (c) to add to the covenants and agreements of, and limitations and restrictions upon, the City in the Indenture other covenants, agreements, limitations and restrictions to be observed by the City which are not contrary to or inconsistent with the Indenture as theretofore in effect; (d) to confirm, as further assurance, any pledge under, and the subjection to any claim, lien or pledge created or to be created by, the Indenture, of the Trust Estate or of any other moneys, securities or funds; (e) to comply with the requirements of the Trust Indenture Act of 1939, as from time to time amended; (f) to authorize the issuance and sale of one or more series of Additional Bonds; (g) to make such additions, deletions or modifications as may be necessary to assure compliance with Section 148(1) of the Code relating to required rebate to the United States or otherwise as may be necessary to assure exemption from federal income taxation of interest on the Bonds; or (h) to modify, alter, amend or supplement the Indenture in any other respect which is not materially adverse to the Bondholders and which does not involve a change described in clause (a), (b), (c), (d), (e) or (f) below and which, in the judgment of the Trustee, is not to the prejudice of the Trustee. Supplemental Indentures Requiring Consent of Bondholders. Subject to the terms and provisions contained in this paragraph, and not otherwise, the Holders of not less than 2/3 in aggregate principal amount of the Bonds then Outstanding shall have the right, from time to time, anything contained in the Indenture to the contrary notwithstanding, to consent to and approve the execution by the City and the Trustee of such indenture or indentures supplemental to the Indenture 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 the Indenture or in any Supplemental Indenture; provided, however, that nothing contained in the Indenture shall permit • or be construed as permitting (a) an extension of the maturity (or mandatory redemption date) of the principal of or the interest on any Bond issued thereunder, or (b) a reduction in the principal amount of or redemption premium or rate of interest on any Bond issued thereunder, or (c) the creation of any lien on the Trust Estate or any part thereof, except as expressly permitted in the 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 Indenture, or (1) depriving the Holder of any Bond then Outstanding of the lien created on the Trust Estate. If, at any time the City shall request the Trustee to enter into any Supplemental Indenture for any of the purposes described above, the Trustee shall, at the expense of the City, cause notice of the proposed execution of such Supplemental Indenture to be mailed by first class mail to each registered owner of the Bonds. 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 Bondholders. The Trustee shall not, however, be subject to any liability to any Bondholder by reason of its failure to mail such notice, and any such failure shall not affect the validity of such Supplemental Indenture when consented to and approved as provided above. If the Holders of not less than 2/3 in aggregate principal amount of the Bonds Outstanding at the time of the execution of any such Supplemental Indenture shall have consented to and approved the execution thereof, 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. SUMMARY OF THE CONTINUING DISCLOSURE AGREEMENT The City has entered into an undertaking in the form of the Continuing Disclosure Agreement as required by the Indenture for the benefit of the Beneficial Owners of the Series 2002 Bonds to cause certain financial information to be sent to certain information repositories annually and to cause notice to be sent to such information • repositories of certain specified events, pursuant to the requirements of Section (b)(5)(i) of Rule 15c2-12 of the Securities Exchange Act of 1934, as amended (the "Rule"). The City has not failed to comply with any previous undertaking pursuant to the Rule. 26 The Continuing Disclosure Agreement contains the following covenants and provisions: • (a) The City shall, not later than August 1 of each year, commencing August 1, 2002, provide to each Repository and the Trustee its Annual Financial Information consistent with the requirements of subsection (d) below. (b) If, on the date specified in subsection (a) above for providing the Annual Financial Information to Repositories, the Trustee has not received a copy of the Annual Financial Information, the Trustee shall contact the Disclosure Representative to determine if the City is in compliance with subsection (a). (c) If the Trustee is unable to verify that the Annual Financial Information has been provided to the Repositories by the date required within subsection (a), the Trustee shall file a notice to such effect with the Repositories and the MSRB. (d) The City's Annual Financial Information shall contain or incorporate by reference the following: (i) Receipts of the Sales and Use Tax for the latest Fiscal Year and for the four previous Fiscal Years, if available. (ii) The City's audited financial statements for the prior Fiscal Year, prepared in accordance with accounting principles generally accepted in the United States ("GAAP") as such principles are modified by the governmental accounting standards promulgated by the Government Accounting Standards Board ("GASH") and by mandated principles of the State of Arkansas, if any, as in effect from time to time, which financial statements have been audited by such auditor as shall then be required or permitted by the laws of the State of Arkansas. If the City's audited financial statements are not available by the time its Annual Financial Information is required to be filed pursuant to subsection (a) above, the Annual Financial Information shall contain the unaudited financial statements of the City, and the audited financial statements shall be filed in the same manner as the Annual Financial Information when they become available. (e) The City has agreed to instruct the Trustee to deliver to each National Repository, or the MSRB • and the Arkansas State Repository, notice of the occurrence of any of the following Specified Events, if deemed material: (i) Principal and interest payment delinquencies; (ii) Non-payment related defaults; (iii) Unscheduled draws on any debt service reserve reflecting financial difficulties; (iv) Unscheduled draws on any credit enhancement reflecting financial difficulties; (v) Substitution of any credit or liquidity providers, or their failure to perform; (vi) Adverse tax opinions or events affecting the tax-exempt status of the Series 2002 Bonds; (vii) Modifications to rights of Bondowners; (viii) Bond calls; (ix) Defeasances; (x) Release, substitution or sale of property securing payment of the Series 2002 Bonds; or (xi) Rating changes. (f) The City has agreed that the foregoing undertakings shall be for the benefit of the Beneficial Owners of the Series 2002 Bonds, and shall be enforceable by any Beneficial Owner of the Series 2002 Bonds in an action for specific performance against the City. (g) The continuing obligation of the City to provide Annual Financial Information and notice of the occurrence of Specified Events, if material, will terminate if the City is no longer an "obligated person" within the meaning of the Rule or upon the maturity, defeasance, prior redemption or payment in full of the Series 2002 Bonds. The City and the Trustee may amend the Continuing Disclosure Agreement, and any provision of the Continuing • Disclosure Agreement may be waived, if such amendment or waiver is supported by an opinion of counsel, reasonably acceptable to each of the City and the Trustee, to the effect that such amendment or waiver would not, in and of itself, cause the undertakings under the Continuing Disclosure Agreement to violate the Rule, taking into account any subsequent change in or official interpretation of the Rule. 27 (h) The following terms used under this caption shall have the meanings set forth below: "Annual Financial Information" means the annual financial information to be provided by the City of the • type described in the Continuing Disclosure Agreement. "Arkansas State Repository" means any public or private repository or entity as may be designated by the State of Arkansas as a state repository for purposes of the Rule and recognized as such by the SEC. As of the date of the Continuing Disclosure Agreement, there is no Arkansas State Repository. "Beneficial Owner" means any Person which has the power, directly or indirectly, to vote or consent with respect to, or to dispose of ownership of, any Series 2002 Bonds, including Persons holding Series 2002 Bonds through nominees or depositories. "Disclosure Representative" means the City's Administrative Services Director or his or her designee, or such other officer or employee as the City shall designate in writing to the Trustee from time to time. "Fiscal Year" means the 12 -month period used, at any time, by the City for accounting purposes, which may be the calendar year. The City's fiscal year presently ends on December 31. "MSRB" means the Municipal Securities Rulemaking Board. "National Repository" means any nationally recognized municipal securities information repository for purposes of the Rule. "Participating Underwriter" means Stephens Inc. "Repository" means each National Repository and the Arkansas State Repository. "Specified Events" means each of the events with respect to the Series 2002 Bonds listed in subsection (e) above. (i) A failure by the City to comply with the provisions of the Continuing Disclosure Agreement will not constitute an Event of Default under the Indenture, and the sole remedy in such an event shall be an action to compel specific performance. Nevertheless, such a failure to comply must be reported in accordance with the Rule and must be considered by any broker, dealer or municipal securities dealer before recommending the purchase or sale of the Series 2002 Bonds in the secondary market. Consequently, such a failure may adversely affect the transferability and liquidity of the Series 2002 Bonds. UNDERWRITING Under a bond purchase agreement entered into by and among the City and Stephens Inc. (the "Underwriter"), the Series 2002 Bonds are being purchased at a purchase price of $25,256,154.42 (representing the stated principal amount of the Series 2002 Bonds plus an original offering premium of $388,105.70 and less an underwriting discount of $175,000.00) plus accrued interest from June 1, 2002 to the date of delivery of the Series 2002 Bonds. The bond purchase agreement provides that the Underwriter will purchase all of the Series 2002 Bonds if any are purchased. The obligation of the Underwriter to accept delivery of the Series 2002 Bonds is subject to various conditions contained in the bond purchase agreement, including the absence of pending or threatened litigation questioning the validity of the Series 2002 Bonds or any proceedings in connection with the issuance thereof, and the absence of material adverse changes in the financial condition of the City. The Underwriter intends to offer the Series 2002 Bonds to the public initially at the offering prices as set forth on the cover page of this Official Statement, which offering prices (or bond yields establishing such offering prices) may subsequently change without any requirement of prior notice. The Underwriter reserves the right to join with dealers and other underwriters in offering the Series 2002 Bonds to the public, and may offer the Series 2002 Bonds to such dealers and other underwriters at a price below the public offering price. The City has agreed to indemnify the Underwriter against certain civil liabilities in connection with the offering and sale of the Series 2002 Bonds, including certain liabilities under federal securities laws. Stephens Inc. has served the City in the capacity of a financial advisor in connection with the financing of the Project. For the purpose of facilitating a negotiated bond financing or financings to finance a portion of the cost of the Project, the City and Stephens Inc. have amended their financial advisory agreement to limit the scope of the agreement solely to the portion of the financing of the Project to be provided by an RLF Loan and to exclude from the scope of the agreement any financial advisory services relating to the Series 2002 Bonds or any other bond financing of the Project. The City and Stephens Inc. acknowledge that a conflict of interest could arise from the W APPENDIX A Proposed Form of Bond Counsel Opinion Kutak Rock LLP, Bond Counsel, will render an opinion with respect to the Series 2002 Bonds, dated the date of issuance and delivery thereof, in substantially the following form: June ,2002 City of Fayetteville, Arkansas Fayetteville, Arkansas Simmons First Trust Company, N.A., as Trustee Little Rock, Arkansas Stephens Inc. Little Rock, Arkansas $25,000,000 City of Fayetteville, Arkansas Sales and Use Tax Capital Improvement Bonds Series 2002 Ladies and Gentlemen: We have acted as bond counsel in connection with the issuance and sale by the City of Fayetteville, • Arkansas (the "City"), a political subdivision of the State of Arkansas, of its $25,000,000* Sales and Use Tax Capital Improvement Bonds, Series 2002 (the "Bonds"). The Bonds are being issued pursuant to the provisions of the Constitution and laws of the State of Arkansas, including, particularly, Amendment 62 and Arkansas Code Annotated (1998 Repl. & Supp. 2001) §§14- 164-301 et seq. (as from time to time amended, the "Act"), pursuant to Ordinance No. 4389 of the City, duly adopted and approved on May 7, 2002 (the "Authorizing Ordinance"), and pursuant to a Trust Indenture dated as of June 1, 2002 (the "Indenture"), by and between the City and Simmons First Trust Company, N.A., as trustee (the "Trustee"). Reference is hereby made to the Indenture and to all indentures supplemental thereto for the provisions, among others, with respect to the conditions for the issuance of parity debt by the City, the nature and extent of the security for the Bonds, the rights, duties and obligations of the City, the Trustee and the Holders of the Bonds, and the terms upon which the Bonds are issued and secured. Reference is made to an opinion of even date herewith of Kit Williams, Esq., City Attorney, a copy of which is on file with the Trustee, with respect, among other matters, to the status and valid existence of the City, the power of the City to adopt the Election Ordinance and the Authorizing Ordinance and to enter into and perform its obligations under the Indenture, the valid adoption of the Election Ordinance and the Authorizing Ordinance, and the due authorization, execution and delivery of the Indenture by the City, and with respect to the Indenture being enforceable upon the City. We have examined the law and such certified proceedings and other papers as we have deemed necessary to render this opinion. As to questions of fact material to our opinion, we have relied upon the representations of the City contained in the Election Ordinance, the Authorizing Ordinance and the Indenture and in the certified proceedings and other certifications of public officials furnished to us, without undertaking to verify the same by independent investigation. Based upon the foregoing, we are of the opinion, under existing law, as follows: GPI I. The City is duly created and validly existing as a municipal corporation of the State of Arkansas. Pursuant to the Constitution and laws of the State of Arkansas, including, particularly, Amendment 62 and the Act, the City is empowered to adopt the Election Ordinance and the Authorizing Ordinance, to execute and deliver the Indenture, to perform the agreements on its part contained therein, and to issue the Bonds. 2. The Authorizing Ordinance has been duly adopted by the City and constitutes a valid and binding obligation of the City enforceable upon the City in accordance with its terms. 3. The Indenture has been duly authorized, executed and delivered by the City and is a valid and binding obligation of the City enforceable upon the City in accordance with its terms. 4. The Bonds have been validly authorized, executed, issued and delivered by the City and represent valid and binding special obligations of the City. The principal, premium, if any, and interest on the Bonds shall be payable from, and shall be secured by an assignment and pledge by the City to the Trustee of, the receipts of the Sales and Use Tax (as defined in the Indenture). 5. The Sales and Use Tax receipts have been duly and validly assigned and pledged to the Trustee under the Indenture, and the Indenture creates, as security for the Bonds, a valid security interest in the Sales and Use Tax receipts. Under the laws of the State of Arkansas, including, particularly, Arkansas Code Annotated (2001 Repl.) Section 4-9-109(d)(14), the pledge, assignment and security interest in the Sales and Use Tax receipts securing the Bonds is and shall be prior to any judicial lien hereafter imposed on the Sales and Use Tax receipts to enforce a judgment against the City on a simple contract, and it is not necessary to file a Uniform Commercial Code financing statement in order to perfect a security interest in the Sales and Use Tax receipts. 6. The interest on the Bonds is excluded from gross income for federal income tax purposes and is not an item of tax preference for purposes of the federal alternative minimum tax imposed on individuals and corporations; it should be noted, however, that, for the purpose of computing the alternative minimum tax imposed on corporations (as defined for federal income tax purposes), such interest is taken into account in determining adjusted current earnings for purposes of such alternative minimum tax. The opinions set forth in the preceding sentence are subject to the condition that the City comply with all requirements of the Internal Revenue Code of 1986, as amended, that must be satisfied prior to or subsequent to the issuance of the Bonds in order that the interest thereon be, or continue to be, excluded from gross income for federal income tax purposes. The City has covenanted to comply with each such requirement. Failure to comply with certain of such requirements may cause the inclusion of interest on the Bonds in gross income for federal income tax purposes to be retroactive to the date of issuance of the Bonds. We express no opinion regarding other federal tax consequences arising with respect to the Bonds. The interest on the Bonds is exempt from all state, county and municipal taxes in the State of Arkansas. 8. The Bonds are exempt from registration pursuant to the Securities Act of 1933, as amended, and the Indenture is not required to be qualified under the Trust Indenture Act of 1939, as amended, in connection with the offer and sale of the Bonds. It is to be understood that the rights of the registered owners of the Bonds and the enforceability of the Bonds, the Authorizing Ordinance and the Indenture may be subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights heretofore or hereafter enacted to the extent constitutionally applicable and that their enforcement may also be subject to the exercise of judicial discretion in appropriate cases. Very truly yours, • A-2 change of the role of Stephens Inc. from financial advisor to Underwriter. Stephens Inc. will receive compensation for its services as Underwriter in an amount equal to the underwriting discount, as set forth in the second preceding • paragraph. TAX EXEMPTION Federal Income Taxes. In the opinion of Kutak Rock LLP, Bond Counsel, under existing law, the interest on the Series 2002 Bonds is excludable from the gross income of the owners thereof for federal income tax purposes and is not an item of tax preference for purposes of the federal alternative minimum tax imposed on individuals and corporations; it should be noted, however, that for purposes of computing the alternative minimum tax imposed on corporations (as defined for federal income tax purposes), such interest is taken into account in determining adjusted current earnings and profits. The opinions set forth in the preceding sentence are subject to the condition that the City comply with all requirements of the Code that must be satisfied subsequent to the issuance of the Series 2002 Bonds in order that the interest thereon be, or continue to be, excludable from gross income for federal income tax purposes. The City has covenanted to comply with each such requirement. Failure to comply with certain of such requirements may cause the inclusion of interest on the Series 2002 Bonds in gross income for federal income tax purposes to be retroactive to the date of issuance of the Series 2002 Bonds. Bond Counsel expresses no opinion regarding other federal tax consequences arising with respect to the .Series 2002 Bonds. Prospective purchasers of the Series 2002 Bonds should be aware that ownership of tax-exempt obligations may result in collateral federal income tax consequences to certain taxpayers, including, without limitation, financial institutions, property and casualty insurance companies, certain foreign corporations doing business in the United States, certain Subchapter S corporations with excess passive income, individual recipients of Social Security or Railroad Retirement benefits and taxpayers who may be deemed to have incurred or continued indebtedness to purchase or carry tax-exempt obligations. Prospective purchasers of the Series 2002 Bonds should consult their tax advisors as to applicability of any such collateral consequences. State Taxes. Bond Counsel is of the opinion that, under existing law, the interest on the Series 2002 Bonds • is exempt from all state, county and municipal taxes in the State of Arkansas. RATING Standard & Poor's Ratings Services, a Division of The McGraw-Hill Companies, Inc. ("S&P"), has given the Series 2002 Bonds the rating of "AA-". Such rating reflects only the view of S&P at the time such rating was given. An explanation of the significance of the rating may be obtained from S&P. There is no assurance that such rating will continue for any given period of time or that the rating will not be revised downward or withdrawn entirely by S&P if in its judgment circumstances so warrant. Any downward revision or withdrawal of the rating may have an adverse effect on the market price of the Series 2002 Bonds. Neither the City nor the Underwriter have undertaken any responsibility subsequent to the issuance of the Series 2002 Bonds to assure the maintenance of the rating or to oppose any revision or withdrawal of the rating. No application has been made to any Rating Agency other than S&P for a rating on the Series 2002 Bonds. LEGAL MATTERS Legal Opinions. Legal matters incident to the authorization and issuance of the Series 2002 Bonds are subject to the unqualified approving opinion of Kutak Rock LLP, Little Rock, Arkansas, Bond Counsel, a copy of whose approving opinion will be delivered with the Series 2002 Bonds and a form of which is attached hereto as Appendix A. Certain legal matters will be passed upon for the City by its counsel, Kit Williams, Esq., City Attorney. Litigation. There is no litigation pending seeking to restrain or enjoin the issuance or delivery of the Series 2002 Bonds or questioning or affecting the legality of the Series 2002 Bonds or the proceedings and authority under which the Series 2002 Bonds are to be issued, or questioning the right of the City to issue the Series 2002 Bonds. Except as set forth in the following paragraph, there is no action, suit or proceeding known to be pending or • threatened, restraining or enjoining the City in any way which could have a material adverse effect on the City or its financial affairs. The City is presently a defendant or co-defendant in two separate actions where the amount of damages sought exceeds $50,000. In one of these cases, the City has prevailed at the trial court level with a summary 29 judgment. This case is currently on appeal. In the second case, a motion to dismiss filed by the City and other defendants is pending. Counsel for the City is actively defending each of these proceedings, and as of the date of this Official Statement, the City believes the likelihood of unfavorable outcomes is remote. Further, the City does • not know of any fact or set of facts from which the liability might arise which individually or collectively would materially affect the financial position of the City. MISCELLANEOUS Any statements made in this Official Statement involving matters of opinion or of estimates, whether or not so expressly stated, are set forth as such and not as representations of fact, and no representation is made that any of the estimates will be realized. This Official Statement is not to be construed as a contract or agreement between the City and the purchasers or owners of any of the Series 2002 Bonds. ACCURACY AND COMPLETENESS OF OFFICIAL STATEMENT The information contained in this Official Statement has been taken from sources considered to be reliable, but is not guaranteed. To the best of the knowledge of the City, this Official Statement does not include any untrue statement of a material fact, nor does it omit the statement of any material fact required to be stated herein, or necessary to make the statements herein, in light of the circumstances under which they were made, not misleading. The execution and delivery of this Official Statement has been duly authorized by the City of Fayetteville, Arkansas. CITY OF FAYETTEVILLE, ARKANSAS : BY soo Mayor pc/• 30 KUTAK ROCK LLP ATLANTA • CHICAOO SUITE 1100 DENVER 425 WEST CAPITOL AVENUE KANSAS CITY LINCOLN LITTLE ROCK, ARKANSAS 72201-3409 NEWPORT BEACH OKLAHOMA CITY 501-975-3000 oMAXA FACSIMILE 501-975-3001 PASADENA RICHMOND www.kutakrock.com SCOTTSDALE WASHINGTON June 20, 2002 City of Fayetteville, Arkansas Fayetteville, Arkansas Simmons First Trust Company, N.A., as Trustee Little Rock, Arkansas Stephens Inc. Little Rock, Arkansas • $25,000,000 City of Fayetteville, Arkansas Sales and Use Tax Capital Improvement Bonds Series 2002 Ladies and Gentlemen: We have acted as bond counsel in connection with the issuance and sale by the City of Fayetteville, Arkansas (the "City"), a political subdivision of the State of Arkansas, of its $25,000,000 Sales and Use Tax Capital Improvement Bonds, Series 2002 (the "Bonds"). The Bonds are being issued pursuant to the provisions of the Constitution and laws of the State of Arkansas, including, particularly, Amendment 62 and Arkansas Code Annotated (1998 Repl. & Supp. 2001) §§14-164-301 et seq. (as from time to time amended, the "Act"), pursuant to Ordinance No. 4389 of the City, duly adopted and approved on May 7, 2002 (the "Authorizing Ordinance"), and pursuant to a Trust Indenture dated as of June 1, 2002 (the "Indenture"), by and between the City and Simmons First Trust Company, N.A., as trustee (the "Trustee"). Reference is hereby made to the Indenture and to all indentures supplemental thereto for the provisions, among others, with respect to the conditions for the issuance of parity debt by the City, the nature and extent of the security for the Bonds, the rights, duties and obligations of the City, the Trustee and the Holders of the Bonds, and the terms upon which the Bonds are issued and secured. Reference is made to an opinion of even date herewith of Kit Williams, Esq., City Attorney, a copy of which is on file with the Trustee, with respect, among other matters, to the • status and valid existence of the City, the power of the City to adopt the Election Ordinance and the Authorizing Ordinance and to enter into and perform its obligations under the Indenture, the 10-37090.01 KUTAK ROCK LLP • Approving Opinion June 20, 2002 Page 2 valid adoption of the Election Ordinance and the Authorizing Ordinance, and the due authorization, execution and delivery of the Indenture by the City, and with respect to the Indenture being enforceable upon the City. We have examined the law and such certified proceedings and other papers as we have deemed necessary to render this opinion. As to questions of fact material to our opinion, we have relied upon the representations of the City contained in the Election Ordinance, the Authorizing Ordinance and the Indenture and in the certified proceedings and other certifications of public officials furnished to us, without undertaking to verify the same by independent investigation. Based upon the foregoing, we are of the opinion, under existing law, as follows: 1. The City is duly created and validly existing as a municipal corporation of the State of Arkansas. Pursuant to the Constitution and laws of the State of Arkansas, including, particularly, Amendment 62 and the Act, the City is empowered to adopt the Election Ordinance and the Authorizing Ordinance, to execute and deliver the Indenture, to perform the agreements on its part contained therein, and to issue the Bonds. • 2. The Authorizing Ordinance has been duly adopted by the City and constitutes a valid and binding obligation of the City enforceable upon the City in accordance with its terms. 3. The Indenture has been duly authorized, executed and delivered by the City and is a valid and binding obligation of the City enforceable upon the City in accordance with its terms. 4. The Bonds have been validly authorized, executed, issued and delivered by the City and represent valid and binding special obligations of the City. The principal, premium, if any, and interest on the Bonds shall be payable from, and shall be secured by an assignment and pledge by the City to the Trustee of, the receipts of the Sales and Use Tax (as defined in the Indenture). 5. The Sales and Use Tax receipts have been duly and validly assigned and pledged to the Trustee under the Indenture, and the Indenture creates, as security for the Bonds, a valid security interest in the Sales and Use Tax receipts. Under the laws of the State of Arkansas, including, particularly, Arkansas Code Annotated (2001 Repl.) Section 4-9-109(d)(14), the pledge, assignment and security interest in the Sales and Use Tax receipts securing the Bonds is and shall be prior to any judicial lien hereafter imposed on the Sales and Use Tax receipts to enforce a judgment against the City on a simple contract, and it is not necessary to file a Uniform Commercial Code financing statement in order to perfect a security interest in the Sales and Use Tax receipts. 6. The interest on the Bonds is excluded from gross income for federal income tax purposes • and is not an item of tax preference for purposes of the federal alternative minimum tax 10-37090.01 KUTAK ROCK LLP • Approving Opinion June 20, 2002 Page 3 imposed on individuals and corporations; it should be noted, however, that, for the purpose of computing the alternative minimum tax imposed on corporations (as defined for federal income tax purposes), such interest is taken into account in determining adjusted current earnings for purposes of such alternative minimum tax. The opinions set forth in the preceding sentence are subject to the condition that the City comply with all requirements of the Internal Revenue Code of 1986, as amended, that must be satisfied prior to or subsequent to the issuance of the Bonds in order that the interest thereon be, or continue to be, excluded from gross income for federal income tax purposes. The City has covenanted to comply with each such requirement. Failure to comply with certain of such requirements may cause the inclusion of interest on the Bonds in gross income for federal income tax purposes to be retroactive to the date of issuance of the Bonds. We express no opinion regarding other federal tax consequences arising with respect to the Bonds. 7. The interest on the Bonds is exempt from all state, county and municipal taxes in the State of Arkansas. 8. The Bonds are exempt from registration pursuant to the Securities Act of 1933, as amended, and the Indenture is not required to be qualified under the Trust Indenture Act of 1939, • as amended, in connection with the offer and sale of the Bonds. It is to be understood that the rights of the registered owners of the Bonds and the enforceability of the Bonds, the Authorizing Ordinance and the Indenture may be subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights heretofore or hereafter enacted to the extent constitutionally applicable and that their enforcement may also be subject to the exercise of judicial discretion in appropriate cases. Very truly yours, 10-37090.01 KUTAK ROCK LLP ATLANTA • CHICAGO SUITE 1100 DENVER 425 WEST CAPITOL AVENUE KANSAS CITY LINCOLN LITTLE ROCK, ARKANSAS 72201-3409 NEWPORT BEACH OKLAHOMA CITY 501 -975-3000 OMAHA FACSIMILE 501-975-3001 PASADENA RICHMOND www.kutakrock.com SCOTTSDALE WASHINGTON June 20, 2002 City of Fayetteville, Arkansas Fayetteville, Arkansas Simmons First Trust Company, N.A., as Trustee Pine Bluff, Arkansas Stephens Inc. Little Rock, Arkansas • • $25,000,000 City of Fayetteville, Arkansas Sales and Use Tax Capital Improvement Bonds Series 2002 Ladies and Gentlemen: This opinion supplements our bond approving opinion, dated the date hereof, relating to the above -captioned bonds (the "Bonds"). Except as otherwise defined herein, the terms used herein shall have the meanings prescribed for them in said opinion. We have examined the law and such certified proceedings and other papers as we have deemed necessary to render this opinion.. As to questions of fact material to our opinion, we have relied upon the representations of the City contained in the Indenture and in the certified proceedings and other certifications of public officials furnished to us, without undertaking to verify the same by independent investigation. In addition to the documents specifically mentioned in the approving opinion, in connection with this opinion we have also examined: (a) An executed counterpart of the Bond Purchase Agreement dated June 12, 2002 (the "Bond Purchase Agreement"), by and between the City and Stephens Inc., as underwriter (the "Underwriter"); (b) An executed counterpart of the Continuing Disclosure Agreement dated June 20, 2002 (the "Disclosure Agreement"), by and between the City and Simmons First Trust Company, N.A., as trustee (the "Trustee"); 10-37091.01 KUTAK ROCK LLP • Supplemental Opinion June 20, 2002 Page 2 (c) An executed counterpart of the Tax Regulatory Agreement dated June 20, 2002 (the "Tax Regulatory Agreement"), by and between the City and the Trustee; and (d) Portions of the Official Statement dated June 12, 2002, with respect to the Bonds (the "Official Statement"), captioned "INTRODUCTORY STATEMENT," "THE SERIES 2002 BONDS," "SECURITY FOR THE BONDS," "ESTIMATED SOURCES AND USES OF FUNDS," "THE SALES AND USE TAX," "DEFINITIONS OF CERTAIN TERMS," "SUMMARY OF THE INDENTURE," "SUMMARY OF THE CONTINUING DISCLOSURE AGREEMENT," "TAX EXEMPTION," and "APPENDIX A — Form of Opinion of Bond Counsel" (the "Relevant Captions") insofar as they relate to this opinion. Based on our examination, we are of the opinion, as of the date hereof and under existing law, as follows: 1. The Bond Purchase Agreement has been duly authorized, executed and delivered by the City and, assuming due authorization, execution and delivery by the Underwriter, the Bond Purchase Agreement constitutes the valid and binding agreement of the City enforceable in accordance with its terms. 2. The Disclosure Agreement has been duly authorized, executed and delivered by the City and, assuming due authorization, execution and delivery by the Trustee, the Disclosure Agreement constitutes the valid and binding agreement of the City enforceable in accordance with its terms. 3. The Tax Regulatory Agreement has been duly authorized, executed and delivered by the City and, assuming due authorization, execution and delivery by the Trustee, the Tax Regulatory Agreement constitutes the valid and binding agreement of the City enforceable in accordance with its terms. 4. The statements contained in the Official Statement under the Relevant Captions, insofar as such statements purport to summarize certain provisions of the Bonds, the Indenture and the Continuing Disclosure Agreement, or conclusions of law and legal opinions, are true, accurate and correct summaries thereof in all material respects and do not omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The enforceability of the respective obligations of the parties to the documents and other items described above, and the availability of certain rights and remedies provided for therein, may be limited by bankruptcy, receivership, insolvency, reorganization, moratorium, marshalling or other similar statutes or rules of law affecting creditors' rights and remedies, to general principles of equity and to the discretion of any court in granting any relief or issuing any order, whether the proceeding is considered a proceeding at law or equity. In particular, the right to 10-37091.01 KUTAK ROCK LLP • Supplemental Opinion June 20, 2002 Page 3 indemnification under any of the documents or other items described above may be limited by federal of state securities laws or by the public policy underlying such laws. This opinion is being rendered to you solely for your use and benefit and may not be relied upon in any manner, nor used, by any other person. Very truly yours, Kk(, LLf • • 10-37091.01 FAYETTEVILLE • Kit Williams CITY ATTORNEY June 20, 2002 Simmons First Trust Company, N.A., as trustee Pine Bluff, Arkansas Stephens Inc. Little Rock, Arkansas Kutak Rock LLP Little Rock, Arkansas THE CITY OF FAYETTEVILLE. ARKANSAS CITY ATTORNEY DIVISION 113 WEST MOUNTAIN, 72701 PHONE: 501-575-8313 FAX: 501-575-8315 Re: $25,000,000 City of Fayetteville, Arkansas Sales and Use Tax Capital Improvement Bonds, Series 2002 Ladies and Gentlemen: I am counsel to the City of Fayetteville, Arkansas (the "City") and have acted in that capacity in connection with the issuance and sale by the City of its $25,000,000 Sales and Use Tax Capital Improvement Bonds, Series 2002 (the "Bonds"), which Bonds are being sold pursuant to the terms of a Bond Purchase Agreement dated June 12, 2002 (the "Bond Purchase Agreement"), by and between Stephens Inc. and the City. The terms defined in the Bond Purchase Agreement are used in this opinion with the meanings assigned to them in the Bond Purchase Agreement. In this connection, I have reviewed certain documents with respect to the Bonds, and have examined such records, certificates and other documents as I have considered necessary or appropriate for the purposes of this opinion, including Ordinance No. 4327 adopted by the City Council on August 7, 2001 (the "Election Ordinance"), Ordinance No. 4389 adopted by the City Council on May 7, 2002 (the "Bond Ordinance"), the Trust Indenture dated as of June 1, 2002 (the "Indenture"), by and between the City and Simmons First Trust Company, N.A., as trustee (the "Trustee"), the Tax Regulatory Agreement dated June 20, 2002 (the "Tax Regulatory Agreement"), by and between the City and the Trustee, the Continuing Disclosure Agreement dated June 20, 2002 (the "Disclosure Agreement"), by and between the City and the Trustee, the Preliminary Official Statement dated June 5, 2002 (the "Preliminary Official Statement") and the • Official Statement dated June 12, 2002 (the "Official Statement") relating to the offering of the Bonds, and closing certificates of the City. 10-36970.01 Based on such review and such other considerations of law and fact as I believe . to be relevant, I am of the opinion that: 1. The City is a duly organized and validly existing political subdivision and city of the first class, organized under the laws of the State of Arkansas, with full power and authority to adopt the Election Ordinance and the Bond Ordinance,. to levy the Sales and Use Tax, and to execute and deliver the Bonds, the Indenture, the Tax Regulatory Agreement, the Disclosure Agreement and the Bond Purchase Agreement. 2. The City has duly approved the Preliminary Official Statement and the Official Statement 3. The Election Ordinance and the Bond Ordinance have been duly adopted by the City by all action necessary under the Act and the laws and Constitution of the State of Arkansas, and each remains in full force and effect. 4. The Indenture, the Tax Regulatory Agreement, the Disclosure Agreement and the Bond Purchase Agreement have been duly authorized, approved, executed and delivered by the City and, subject to the extent that the enforceability of the rights and remedies set forth therein may be limited by bankruptcy, insolvency or other laws affecting creditors' rights generally, constitute valid and binding agreements of the City • enforceable in accordance with their terms. 5. The information in the Official Statement under the captions "THE PROJECT," "THE CITY" and "LEGAL MATTERS" (apart from financial or statistical data contained or incorporated therein, as to which no view is expressed) is fair, accurate and complete and does not omit any matter which, in my opinion, for the purposes for which the Official Statement is to be used, should be included or referred to therein. 6. Excepting those matters discussed in the Official Statement, there is no action, suit or proceeding at law or in equity before or by any court, public board or body, pending or threatened, against or affecting the City, challenging the validity of the transactions contemplated by the Official Statement or the validity of the Bonds, the Sales and Use Tax, the Election Ordinance, the Bond Ordinance, the Indenture, the Tax Regulatory Agreement, the Disclosure Agreement or the Bond Purchase Agreement and, to the best of such counsel's knowledge, there is no investigation, pending or threatened, and no threatened action, suit or proceeding involving any of the matters hereinabove mentioned in this paragraph 6. 7. The adoption of the Election Ordinance and the Bond Ordinance and the execution and delivery of the Indenture, the Tax Regulatory Agreement, the Disclosure • Agreement and the Bond Purchase Agreement, and compliance with the provisions thereof, under the circumstances contemplated thereby, do not and will not in any 2 10-36970.01 • material respect conflict with or constitute on the part of the City a breach of or default under any agreement or other instrument to which the City is a party or any existing law, regulation, court order or consent decree to which the City is subject. 8. Based upon the examinations which I have made as counsel to the City specified above, nothing has come to my attention which would lead me to believe that the Official Statement (except for financial and statistical data contained or incorporated in the Official Statement, as to which no view is expressed) contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. I hereby consent to the references made to me in the Official Statement. • • KW/jh 3 Sincerely, KIT WILLIAMS Fayetteville City Attorney EI r'YLEQI • CERTIFICATE OF ARKANSAS DEPARTMENT OF FINANCE AND ADMINISTRATION The undersigned hereby certify as follows: 1. The undersigned is the duly qualified and acting Excise Tax Administrator of the Department of Finance and Administration of the State of Arkansas. 2. This Certificate is executed in connection with the issuance of $25,000,000 Sales and Use Tax Capital Improvement Bonds, Series 2002 (the "Bonds"), by the City of Fayetteville, Arkansas (the "City"). 3. There has been filed in this office a certified copy of Ordinance No. 4327 of the City, adopted August 7, 2001, a map of the City, a proclamation declaring the results of an election held November 6, 2001, within the City, a copy of a proof of publication of such proclamation, and a certified copy of Ordinance No. 4389 of the City, adopted May 7, 2002, all relating to the levy by the City of a three-quarter of one percent (0.75%) city-wide sales and use tax under the authority of Arkansas Code Annotated Sections 14-164-301 et seq. (the "Special Tax") and the pledge of the receipts from the Special Tax to the payment of the Bonds. 4. The collection of the Special Tax commenced April 1, 2002. • Certified this 14day of June, 2002. DEPARTMENT OF FINANCE AND ADMINISTRATION B Tom Atchley xcise Tax Administrator ED 10-36638.01 CERTIFICATE OF TREASURER • OF THE STATE OF ARKANSAS The undersigned hereby certifies as follows: I. The undersigned is a duly qualified officer acting on behalf of the Treasurer of the State of Arkansas. 2. This Certificate is executed in connection with the issuance of $25,000,000 Sales and Use Tax Capital Improvement Bonds, Series 2002 (the "Bonds"), by the City of Fayetteville, Arkansas (the "City"). 3. There has been filed in the office of the Treasurer of the State of Arkansas a certified copy of Ordinance No. 4327 of the City, adopted August 7, 2001, a map of the City, a proclamation declaring the results of an election held November 6, 2001, within the City, a copy of a proof of publication of such proclamation, and a certified copy of Ordinance No. 4389 of the City, adopted May 7, 2002, all relating to the levy by the City of a three-quarter of one percent (0.75%) city-wide sales and use tax under the authority of Arkansas Code Annotated Sections 14-164-301 et seq. (the "Special Tax") and the pledge of the receipts from the Special Tax to the payment of the Bonds. Certified this tS, day of June, 2002. • TREASURER OF THE STATE OF ARKANSAS By: Titl 10-36637.01 TRUSTEE'S CERTIFICATE • Simmons First Trust Company, N.A., Pine Bluff, Arkansas, as trustee for $25,000,000 City of Fayetteville, Arkansas Sales and Use Tax Capital Improvement Bonds, Series 2002 (the "Bonds"), hereby certifies that: 1. Pursuant to the provisions of a Trust Indenture dated as of June 1, 2002 (the "Indenture") by and between the City of Fayetteville, Arkansas (the "City") and Simmons First Trust Company, N.A., arrangements have been made for Simmons First Trust Company, N.A. to serve as trustee and paying agent (the "Trustee") with respect to the Bonds. The Trustee hereby accepts such appointment. 2. Pursuant to the provisions of the Indenture and directions from the City, Glenda Dean, Corporate Trust Officer, has duly authenticated the initial Bonds in the aggregate principal amount of $25,000,000, being in the form of four typewritten registered bonds, numbered R02-1 through R02-4, inclusive, of the Series 2002 Bonds. 3. Each person who, on behalf of the Trustee, authenticated the initial Bonds or executed the Indenture, the Tax Regulatory Agreement dated as of June 20, 2002, or the Continuing Disclosure Agreement dated as of June 20, 2002, with respect to the Bonds was at the date thereof and is now duly elected, appointed or authorized, qualified and acting as an officer or authorized signatory of the Trustee and is duly authorized to perform such acts at the respective times of such acts, and the signatures of such persons appearing on such documents are their genuine signatures. • 4. The following are names, titles and specimen signatures of each of the above - mentioned officers of the Trustee: Name Office S' nature Glenda Dean Corporate Trust Officer Roy Ferrell Vice President 5. The Trustee is a national banking association duly organized, validly existing and in good standing under the laws of the United States of America. The Trustee has all requisite power and authority to carry out its obligations as Trustee under the Indenture. IN WITNESS WHEREOF, SIMMONS FIRST TRUST COMPANY, N.A., has caused this certificate to be executed in its corporate name by an officer thereunto duly authorized. Dated: June 20, 2002. SIMMONS FIRST TRUST COMPANY, N.A. Pine Bluff, Arkansas By: • Na . Joe Clement Title: President 10-36641.01 • UNDERWRITER'S RECEIPT The undersigned, on behalf of Stephens Inc., as purchaser (the "Purchaser") of $25,000,000 City of Fayetteville, Arkansas Sales and Use Tax Capital Improvement Bonds, Series 2002 (the "Bonds"), hereby acknowledges receipt of each and all of the Bonds, said Bonds being in the form of four typewritten fully registered bonds in the name of Cede & Co., as nominee of The Depository Trust Company, in the authorized denomination, bearing interest and containing such other terms and provisions as set forth in that certain Trust Indenture dated as of June 1, 2002, by and between the City of Fayetteville, Arkansas (the "City") and Simmons First Trust Company, N.A., as trustee (the "Trustee"). The Bonds have been checked, inspected and approved by the Purchaser. The Purchaser further acknowledges the receipt of, or waives the requirement for, each opinion, document and certificate contemplated by the Bond Purchase Agreement dated June 12, 2002, between the City and the Purchaser, and acknowledges that each such opinion, document and certificate, to the extent received, is satisfactory to the Purchaser as to form and substance. Dated: June 20, 2002 STEPHENSINC. By: • 10-37049.01 • CERTIFICATE OF UNDERWRITER The undersigned, on behalf of Stephens Inc., as underwriter in connection with the issuance of $25,000,000 aggregate principal amount of Sales and Use Tax Capital Improvement Bonds, Series 2002 (the "Series 2002 Bonds"), by the City of Fayetteville, Arkansas (the "Issuer"), hereby represents that: 1. The Yield on the Series 2002 Bonds, as set forth in Section 4.10(b) of the Tax Regulatory Agreement dated June 20, 2002 (the "Tax Regulatory Agreement"), by and between the Issuer and Simmons First Trust Company, N.A., as trustee for the Series 2002 Bonds (the "Trustee"), calculated in accordance with the Regulations, is equal to 2.795688%. 2. The offering prices of the Series 2002 Bonds, as set forth in Section 4.5 of the Tax Regulatory Agreement, represent the maximum initial offering prices at which a substantial amount of each maturity of the Series 2002 Bonds were offered for sale and sold to the public (exclusive of bond houses, brokers or similar persons acting in the capacity of underwriters or wholesalers) through a bona fide offering. Such initial offering prices were established by a bona fide bid without regard to any amounts which would increase the Yield on any maturity of the Series 2002 Bonds above its market yield. The description of the interest rates and Yields contained in the final Official Statement with respect to the Series 2002 Bonds constitutes a true and correct summary thereof. 3. To the best knowledge of the undersigned, the representations of the Issuer • contained in the Tax Regulatory Agreement are true and correct. 4. With respect to the Debt Service Reserve Fund established for the Series 2002 Bonds, the establishment of the Debt Service Reserve Fund at the level of funding described in Section 4.8 of the Tax Regulatory Agreement is, in the best judgment of the undersigned, reasonably required to market the Series 2002 Bonds at an economical interest rate for the Issuer and is, in the judgment of the undersigned, established at a level of funding comparable to that found for obligations similar to the Series 2002 Bonds issued within the past year. 5. We understand that this Certificate shall form a part of the basis for the opinion, dated the date hereof, of Kutak Rock LLP, as Bond Counsel, to the effect that interest on the Series 2002 Bonds is not includible in the gross income of the recipients thereof for purposes of federal income taxation under existing laws, regulations, rulings and judicial decisions. IN WITNESS WHEREOF, the undersigned has set his hand as of the date set forth below. STEPHENS INC. By: Dated: June 20, 2002 Autho ized Representative • 10-37050.01 • TRUSTEE'S RECEIPT AND CERTIFICATE AS TO APPLICATION OF FUNDS The undersigned, Simmons First Trust Company, N.A., as trustee (the "Trustee") under a Trust Indenture dated as of June 1, 2002 (the "Indenture"), by and between City of Fayetteville, Arkansas (the "City") and the Trustee, with respect to the County's $25,000,000 Sales and Use Tax Capital Improvement Bonds, Series 2002 (the "Bonds"), hereby certifies that: 1. The Trustee has received this date, on behalf of the City, from Stephens Inc. (the "Underwriter"), $25,256,154.42, that being the agreed purchase price of the Bonds pursuant to the Bond Purchase Agreement dated June 12, 2002, between the City and the Underwriter. 2. The total proceeds of the sale of the Bonds (i.e., $25,256,154.42) have been deposited or will be applied, in accordance with the written directions of the City, as follows: (a) $43,048.72, representing the accrued interest on the Bonds, will be deposited to the Interest Account of the Bond Fund; (b) $1,250,000.00 of proceeds will be deposited in the Debt Service Reserve Fund; (c) $75,000.00 of proceeds will be deposited into the Cost of Issuance Fund and $67,751.66 will be utilized immediately pay those costs of issuance of the Bonds set • forth on Exhibit D to the City's Closing Certificate and Request; and (d) the remaining $23,888,105.70 of proceeds will be deposited in the Project Fund. Dated: June 20, 2002 SIMMONS FIRST TRUST COMPANY, N.A., as Trustee 13 Title: rporate Trust Officer 10-36642.01 11-12-99 62:21?)[ PROM DTC UNDERWRITING tll i • Ii'. Blanket Issuer Letter of Representations (To be Complfld by bsu•l City of fayettev111e AR (N• of faun) 1: 1 • 1 an . Y • • �. 1�.�1. •. ••y . • • • 1 1. ••• - • ' •.. . with • •1 _ • _ w .. • ..• •1 i •' . -0 • . •. THE DEFQbITORYTRU$TCOMPANY Very wlyyours. Fayetteville, AR 72701 aeon (s m) () 501-575-8330 ,!S".T7'L!1�S. O . •#I••1• • S. p q IJ ••• • •. J• _ -I •• • ••• • . • vim.• \ • • ul• .p: ..• 5 a q• — •! 1.• a •-••. pug • •. . ••-• .1.11• Y r• f1 -.+ .ate •• • \ u • • SS_ '1• • p r J •• . ' R• •.q • b Y P ♦. 4 U •Ir11 .155 -Ii !• • -• •. .•. •• • I•.- •—•I. • • Y.! Y ••lfl l r •!n u u• • 11 .0 • • i .II V u •'I •.' e••y •• • • •.. Pp. •.. ••L•1 • • • •- • •-• n. •:-r •- .• a •bl•• • 1 •- •1 put :1•• 4i• LI] Ratings Services 500 North Akard Street Lincoln Plaza. Suite 3200 Dallas, TX 75201 Tel 214 871-1402 Reference No.: 565778 Standard & Poor's A Division of The McGrawHil1C,onq ut Malachy Fallon Managing Director Public Finance Ratings June 5, 2002 Mr. Ted Webber Administrative Services Director City of Fayetteville 113 W. Mountain St. Fayetteville, AR 72701 Re: $25,000,000 City of Fayetteville, Arkansas, Sales and Use Tax Capital Improvement Bonds, Series 2002, dated: June 1, 2002, due: June 1, 2007 Dear Mr. Webber: Pursuant to your request for a Standard & Poor's rating on the above debt obligations, we have reviewed the information furnished to us and, subject to the terms and conditions of the MEMORANDUM OF AGREEMENT on the reverse side hereof, have assigned a rating of 'AA-' to the obligations. S&P views the outlook for this rating over the intermediate to longer term as stable. Please note that the ongoing information required includes annual audits and budgets and, for revenue bond ratings in connection with construction financing, progress reports, not less often than quarterly, covering the project being financed and should be forwarded to: Standard & Poor's Ratings Services Public Finance 55 Water Street, Muni Drop Box No. 1, 38-3-10 New York, NY 10041-0003 S&P relies on the issuer and its counsel, accountants and other experts for the accuracy and completeness of the information submitted in connection with the rating. In addition, it should be understood that the rating is not a "market" rating nor a recommendation to buy, hold or sell these securities. Please note that the rating, as is the case with all of S&P's municipal ratings, does not address the likelihood that interest payable on the Bonds may be deemed or declared includable in the gross income of Bondholders by the relevant authorities at any time. In the event that you decide to include this rating in an Official Statement, prospectus or other offering literature, we request that you include S&P's definition of the rating together with a statement that the rating may be changed, suspended or withdrawn as a result of changes in, or unavailability of, information. We are pleased to have been of service to you. Thank you for choosing Standard & Poor's Ratings Services. If you have any questions, please contact us. Very truly yours, km cc: Mr. Dennis Hunt, Senior Vice President Stephens Inc. MEMORANDUM OF AGREEMENT RE: PUBLIC FINANCE DEBT CONTRACT RATINGS Standard & Pools Ratings Services (S&P) rates the creditworthiness of specific bonds or debt obligations for a fee upon written request from an issuer, or from an • underwriter, financial consultant, institution or other purchaser, provided that the issuer has knowledge of the request. The fee is based on the time and effort to determine the rating and accrues upon completion or termination of the rating process and is not contingent upon the sale of the bonds or debt obligations. The fee is not a payment to circulate, disseminate or publicize the rating. However. S&P has the right to disseminate the rating to its own customers and subscribers or through its own or other media. Expenses incurred, such as those for meetings outside S&P's offices or for field trips ,are also payable to S&P. The Applicant agrees to provide or otherwise furnish to S&P all pertinent information in a timely manner together with all subsequent material changes in and additions to such information prior to, at the time of, and subsequent to the assignment of the rating. S&P should also be informed of any subsequent swap or derivative transactions. Failure to furnish information in a timely manner may result in no rating or withdrawal of the rating. S&P relies on the party submitting such information for its accuracy and completeness and substantiation thereof. It is understood that the rating is an evaluation of the information submitted and does not involve an audit by S&P. S&P has the right to raise, lower, suspend or withdraw the rating at any time, in its sole discretion, depending on the information S&P then has, or the lack thereof, or other circumstances, including, but not limited to. issuance of new bonds or debt obligations by the issuer, all without notice. Neither party may assign this agreement without the consent of the other party. CORPORATE AND PUBLIC FINANCE DEBT RATINGS DEFINITIONS Long-term debt A Standard & Poor's corporate or public finance debt rating is a current Opinion of the creditworthiness of an obligor with respect to a specific obligation. This opinion may take into consideration obligors such as guarantors, insurers, or lessees. The debt rating is not a recommendation to purchase, sell, or hold a security. inasmuch as it does not comment as to market price or suitability for a particular investor. The ratings are based on current information furnished by the issuer or obtained by S&P from other sources It considers reliable. S&P does not perform an audit in connec- don with any rating and may, on occasion, rely on unaudited financial information. The rat- ings may be changed. suspended, or withdrawn as a result of changes in or unavailability of, such nformation, or for other circumstances. The ratings are based, in varying degrees, on the following considerations: 1. Likelihood of default -capacity and willingness of the obligor as to the timely payment of interest and repayment of principal in accordance with the terms of the obligation; 2. Nature of and provisions of the obligation; 3. Protection afforded by, and relative position of. the obligation in the event of bankruptcy reorganization, or other arrangement under the laws of bankruptcy and other laws affecting creditors rights. AAA Debt rated 'AAA' has Me highest rating assigned by Standard & Poor s. Capacity to pay interest and repay principal is extremely strong. AA Debt rated 'AA' has a very strong capacity to pay interest and repay principal and differs from the highest rated issues only in small degree. A Debt rated A' has a strong capacity to pay interest and repay principal although it Is somewhat more susceptible to the adverse effects of changes in circumstances and economic conditions than debt in higher rated categories. BBB Debt rated '866' Is regarded as having an adequate capacity to pay interest and repay principal. Whereas it normally exhibit adequate protection parameters. adverse economic conditions or changing circumstances are more likely to lead to weakened capacity to pay interest and repay principal for debt in this category than in higher rated categories. Speculative grade rating definitions Debt rate 'BB"B''CCCCC' C' is regarded as having predominantly speculative char- acteristics with respect to capacity to pay interest and repay principal. 'BB' indicates the least degree of speculation and C' to higher. While such debt will likely have some quali- ty and protective characteristics, these are outweighed by large uncertainties or major exposures to adverse conditions. BB Debt rated 'BB' has less near -term vulnerability to default than other speculative issues. However, it faces major ongoing uncertainties or exposure to adverse business, financial, or economic conditions which could lead to inadequate capacity to meet timely Interest and principal payments. B Debt rate 'B' has a greater vulnerability to default but currently has the capacity to meet interest payments and principal repayments. Adverse business, financial, or economic conditions will likely impair capacity or willingness to pay interest and repay principal. The 'B' rating categay.y is also used for debt subordinated to senior debt that is assigned an actual or implied'BB' or'BB—'rating. CCC Debt rated CCC' has a currently deniable vulnerability to default, and is dependent upon favorable business, financial, and economic conditions to meet timely payment of interest and repayment of principal. In the event of adversebusiness, financial, or economic conditions, it is not likely to have the capacity to pay Interest and repay principal. CC The rating 'CC is typically applied to debt subordinated to senior debt which Is assigned an actual or Implied CCC—' debt rating. C The rating 'C is typically applied to debt subordinated to senior debt which is assigned an actual or implied CCC— debt rating. Cl The rating 'Cl' is reserved for income bonds on which no interest is being paid. D Debt rated 'D' is in payment default. The "D' rating category is used when interest payments or principal payments are not made on the date due even if the applicable grace period has not expired, unless S&P believes that such payments will be made during such grace period. The 'Orating also will be used upon the filing of a bankruptcy petition it debt service payments are jeopardized. Plus (+) or Minus (.): The ratings from 'AA' to'CCC' may be modified by the addition of a plus or minus to show relative standings within the major ratings categories. Provisional Ratings: The letter )f indicates that the rating is previsional. A pro- visional rating assumes the successful completion of the project being financed by the debt being rated and indicates that payment of debt service requirement is largely or entirely dependent upon the successful and timely completion of the project, makes no comment on the likelihood of, or the risk of default upon failure of, such completion. The investor should exercise judgement with respect to such likelihood and risk. 'Continuance of the rating is contingent upon S&P receipt of an executed copy of the escrow agreement or dosing documentation confirming investments and cash flow. r The 'r' is attached to highlight derivative, hybrid, and certain other obligations that S&P believes may experience high volatility or high variability in expected returns due to noncredit risks. The absence of an 'r' symbol should not be taken as an indication that an obligation will exhibit no volatility or variability in total return. Note Ratings A Standard & Poor s note rating reflects the liquidity concerns and market access risks unique to notes. Notes due in 3 years or less will likely receive a note rating. Notes matur- ing beyond 3 years will most likely receive a long-term debt rating. The following criteria will be used in making that assessment: —Amortization schedule (the larger the final maturity relative to other maturities the more likely it will be treated as a note). —Source of payment (the more dependent the issue is on the market for Its refinancing, the more likely it will be treated as a note.) Note rating symbols are as follows: SP -1 Very strong or strong capacity to pay principle and interest. Those issues determined to possess overwhelming safety characteristics will be given a plus (.) designation. SP -2 Satisfactory capacity to pay principal and interest. SP -3 Speculative capacity to pay principal and interest. Dual Ratings Standard & Pooes assign fuar ratings to all debt issues that have as part of their structure a put option or demand feature. The first rating addresses the likelihood of repayment of principal and interest as due. and the second rating addresses only the demand feature. The lag -term debt rating sym- bats are used for bonds to denote the long-term maturity and the commercial paper rating symbols for its put option (for example,: AANA-I+'). With shat -term demand debt, the rote rating symbol is used with its comm vial paper rating (for example. 'SP -1 +/A-1+'). • C Publication date: 05 -Jun -2002 Reprinted from RatingsDirect Fayetteville, Arkansas, Sales and Use Tax Capital Improvement Bonds, Series 2002 Analyst: Wendy Wipperman, Dallas (1) 214-871-1421; Theodore Chapman, Dallas (1) 214-871-1401 Credit Profile Rationale $25 mil Sales and Use Tax The 'AA ' rating on Fayetteville, Ark.'s sales and use tax capital improvement cap trop ends ser 2002 bonds is based on a pledge of a dedicated 0.75% citywide sales and use tax, Ate Saledate: 10 -JUN -2002 which was voter authorized on Nov. 6, 2001. The rating reflects: OUTLOOK: STABLE . A stable economic base, anchored by the University of Arkansas; • Strong legal provisions, including a capped lien and mandatory use of surplus sales tax revenues for principal prepayment; a Good debt service coverage; . The healthy historical growth of the pledged revenue stream; and a A short five-year maturity with an expected earlier retirement. The expected issuance of $100 million in parity debt through the Arkansas Soil and Water Conservation Commission revolving loan fund program is an offsetting credit factor. The maximum amount of parity debt that may be issued or incurred is limited to $125 million, including the expected revolving loan fund loan. The University of Arkansas and the poultry industry anchor Fayetteville's economy. With an enrollment of 15,000 students, the university accounts for about 26% of the city's population of 58,047. Population growth has been solid, increasing 38% since 1990. Per capita incomes are 114% and 98% of the state and national medians, respectively, despite the significant student population. Per capita retail sales are 3% above the national average. The unemployment rate is well below the state and nation, averaging 2.2% in 2001. The fiscal 2001 three -quarter -cent sales tax revenues of about $8.95 million provided 1.24 times (x) coverage of maximum annual debt service (MADS). Sales tax collections for the 12 -month period ending March 31, 2002, generated 1.26x coverage of MADS. Sales tax revenues reflect healthy growth, increasing 24% between fiscals 1997 and 2001. Legal provisions are exceptionally strong due to state statutory requirements, which provide that tax receipts may be used solely to pay principal, interest, and administrative fees. Any surplus revenues must be used to redeem bonds before maturity in inverse order of maturity. The bonds mature in 2007. City management, however, projects that the bonds will be fully redeemed in 2005 due to surplus sales tax collections. Other legal provisions feature a debt service reserve funded at 5% of the outstanding principal amount funded from the bond proceeds. The additional bonds test requires that pledged sales tax revenues provide 1.25x coverage of MADS, including any revolving fund loan. Bond and loan proceeds will fund: The construction of a new 10 million gallons per day (mgd) wastewater treatment plant, . The expansion of the existing wastewater treatment plant, and • . Sewer collection system improvements. Outlook The stable outlook reflects the stable economic base and Standard & Poors expectation that the pledged sales tax revenue stream will provide solid future debt service coverage and rapid principal retirement. Service Area Economy The University of Arkansas, with an enrollment of 15,000 students, and the poultry industry anchor Fayetteville's economy. The university is the city's leading employer with 2,635 employees. Additional leading employers include Pinnacle Foods Corp.; Tyson Foods Inc., which produces its entree and Mexican food lines in the city; Wal-Mart Stores Inc. (Wal-Mart); and Superior Industries International Inc., as well as other locally based companies. Tax base growth has been steady, increasing an average of 6.9% annually between 1997 and 2001. The university has been undergoing an aggressive capital improvement program over the past several years. Finances While the bonds have a final maturity date of 2005, Fayetteville projects that surplus sales tax collections will allow for the early redemption of all bonds outstanding by June 1, 2005. The city expects to enter into a revolving loan agreement with the Arkansas Soil and Water Conservation Commission in late 2002. The city will draw down funds over a 24- to 36 -month period beginning in December 2003. The bond indenture requires that prior to any drawdown on a revolving fund loan, the city certifies that the pledged sales and use tax receipts for the immediately preceding fiscal year were sufficient • to provide 1.25x coverage of MADS on all bonds outstanding and any revolving fund loan. City management expects to begin making interest payments on the state revolving loan beginning in June 2004. Capital Improvement Program Fayetteville owns a single wastewater treatment plant and contracts privately for its operation. The plant has a 17 mgd capacity, which is designed to meet needs through 2005. The average daily flow through the plant is 11.7 mgd, having increased 31% over the past decade. Average peak flows are roughly 34.6 mgd, necessitating the construction of a new wastewater treatment plant. The construction of the second 10 mgd wastewater treatment facility is in its initial design phase. The entire project is expected to cost about $120 million and will be financed primarily by a $100 million loan from the Arkansas Soil and Water Conservation Commission revolving loan fund program and this bond issue. Article 9 Provisions The sales and use tax receipts have been duly and validly assigned and pledged to the trustee under the indenture, and the indenture creates, as security for the bonds, a valid security interest in the sales and use tax receipts. Under the laws of the state of Arkansas, including, particularly, Arkansas Code Annotated (2001 Repl) Section 4-9-109(d)(14), the pledge, assignment, and security interest in the sales and use tax receipts securing the bonds is, and will be prior to any judicial lien hereafter imposed on the sales and use tax receipts to enforce a judgment against the city on a simple contract, and it is not necessary to file a Uniform Commercial Code financing statement in order to perfect a security interest in the sales and use tax receipts. This report was reproduced from Standard & Poors RatingsDirect, the premier source of real-time,,Web-based credit ratings and research from an REQUISITION SCity of Fayetteville, Arkansas Series 2002 Sales and Use Tax Capital Improvement Bonds Date: Requisition No.: TO: Simmons First Trust Company, as Trustee Pursuant to the provisions of Section 502 of the Trust Indenture dated as of June 1, 2002 (the "Indenture"), by and between the City of Fayetteville, Arkansas (the "Issuer") and you, as trustee, you are authorized to make the following described payment directly to the Payee named below from the Project Fund: Name and Address of Payee: Amount of Payment: • General Classification of the Expenditures: The undersigned hereby certifies that he is authorized to deliver this Requisition on behalf of the Issuer. The amount requested hereunder has not been the basis for any previous Requisition by the Issuer and is justly due and owing to the person(s) named herein as a proper payment or reimbursement of a Project Cost. No Event of Default exists under the Indenture and, to the knowledge of the undersigned, no event has occurred and continues which with notice or lapse of time or both would constitute an Event of Default under the Indenture. CITY OF FAYETTEVILLE, ARKANSAS S. Authorized Representative 10-37093.01 STATE OF ARKANSAS Department of Finance and Administration http:/Iwww.state.ar.us/dfa Mayor Dan Coody City of Fayetteville 113 West Mountain Fayetteville, AR 72701 RE: Ordinances for the City of Fayetteville Date of Election: November 6, 2001 Tax Rate: .75% Bonds Dear Mayor Coody: SALES & • O/2/) </3d7 Orev. ��G`fl0 h USE TAX SECTIOM %% / G /D J P. O. BOX 3566 LITTLE ROCK, AR 72203-3566 PHONE (501) 682-7105 FAX (501) 683-4283 sales.tax@rev.state.ar.us November 17. 2004 (, J The Department of Finance and Administration has reviewed your ordinance to determine if the ordinance is in compliance with the provisions of Arkansas Code § 26-25-107. Findings of our review: • Ordinances are in compliance with § 26-25-107. Within ten (10) days of the election approving the sales and use tax, please furnish the following items: A) Certified copies of the levying ordinance and the ordinance calling for the election plus your single transaction definition. B) Proof of Publication of the Mayor's/Judges Proclamation of Election Results. Mail to: Mr. Tom Atchley, Excise Tax Administrator Excise Tax Administration PO Box 8054 Little Rock AR 72203-8054 In the event that the city annexes additional territory, please mail a certified copy of the annexing ordinances to Mr. Atchley at the address above. If I may be of further assistance, please call me at 501-682-7118. Sin rely, Deborah Spangler, FT Interim anager Electronic Fund Transfer and Local Tax Unit Deborah.Spangler@rev.state.ar.us frd3�7 I -7-6l KUTAK ROCK LLP SUITE 1100 425 WEST CAPITOL AVENUE LITTLE ROCK, ARKANSAS 72201-3409 501-975-3000 FACSIMILE 501-975-3001 www.kutakrock.com GORDON M. WILEdURN July 2, 2002 gordon.wiIboum®k0fakIDOk.fdin (501)975-3101 TO THE ATTACHED DISTRIBUTION LIST: $25,000000 CITY OF FAYETTEVILLE, ARKANSAS SALES AND USE TAX CAPITAL IMPROVEMENT BONDS SERIES 2002 Gentlemen and Ms. Dean: ATLANTA DENVER KANSAS CITY LINCOLN NEW YORK NEWPORT BEACH OKLAHOMA CITY OMAHA PASADENA PITTSBURGH RICHMOND SCOTTSDALE WASHINGTON Enclosed is a copy of the final transcript with respect to the above -captioned matter. Ted, your CD will be forthcoming in a few weeks. If you have any questions or require anything additional, please let me know. As always, it was a pleasure working with each of you. Sincerely, Gordon M. Wilbourn paj Enclosure 10-37495.01 KUTAK ROCK LLP DISTRIBUTION LIST $25,000,000 CITY OF FAYETFEVILLE, ARKANSAS SALES AND USE TAX CAPITAL IMPROVEMENT BONDS SERIES 2002 City of Fayetteville, Arkansas Mr. Ted H. Webber, CPA (I bound; 1 CD) Administrative Services Director City of Fayetteville, Arkansas 113 West Mountain Fayetteville, AR 72701 Simmons First Trust Company Ms. Glenda Dean, Corporate Trust Officer (1 bound) Simmons First Trust Company, N.A. 501 Main Street Pine Bluff, AR 71601 Stephens Inc. Mr. Dennis R. Hunt (1 bound) Senior Vice President and Manager Stephens Inc. 3425 North Futrall Drive, Suite 201 Fayetteville, AR 72703 Counsel for the City of Fayetteville, Arkansas (1 bound) Kit Williams, Esq. City Attorney City of Fayetteville, Arkansas 113 West Mountain Fayetteville, AR 72701 10-37495.01 EXECUTION COPY BOND PURCHASE AGREEMENT June 12, 2002 City of Fayetteville City Administration Building 113 West Mountain Fayetteville, Arkansas 72701 $25,000,000 City of Fayetteville, Arkansas Sales and Use Tax Capital Improvement Bonds, Series 2002 Ladies and Gentlemen On the basis of the representations, warranties and agreements and upon the terms and conditions contained herein, the undersigned, Stephens Inc. (the "Underwriter"), hereby offers to enter into this Bond Purchase Agreement (this "Bond Purchase Agreement") with the City of Fayetteville, Arkansas (the "City") which, upon your acceptance of this offer, will be binding upon you and upon the Underwriter. Terms not otherwise defined herein shall have the same meanings as set forth in the Indenture defined and described below. This offer is made subject to your acceptance of this Bond Purchase Agreement on or before midnight on June 12, 2002. 1. General. Upon the terms and conditions and in reliance upon the respective representations, warranties and covenants herein, the Underwriter hereby- agrees to purchase from the City, and the City hereby agrees to sell to the Underwriter, all (but not less than all) of $25,000,000 City of Fayetteville, Arkansas Sales and Use Tax Capital Improvement Bonds, Series 2002 (the "Bonds"), at the purchase price (the "Purchase Price") of�25,213,105.70 (equal to the par amount of the Bonds plus an offering premium of $388,105.70 and less underwriter's discount of $175,000.00) plus accrued interest, if any, from June 1, 2002, to the Closing Date (hereinafter defined). The Bonds shall be issued by the City pursuant to the provisions of the Constitution and laws of the State of Arkansas, including, particularly, Amendment 62 to the Constitution and Arkansas Code Annotated (1998 Repl. & Supp. 2001) §§14-164-301 et seq. (the "Act"). The Bonds will constitute special and limited obligations of the City, secured solely by and payable solely from (1) a pledge of and lien on the receipts from a three-quarters of one percent (0.75%) city-wide sales and use tax (the "Sales and Use Tax") authorized under the Act and levied within the City pursuant to Ordinance No. 4327 of the City Council of the City which was adopted on August 7, 2001 (the "Election Ordinance"), which levy was approved by the voters of the City at a special election held November 6, 2001, and (2) moneys on deposit in the Revenue Fund, Bond Fund and the Debt Service Reserve Fund established by a Trust Indenture 10-35375.04 to be dated as of June 1, 2002 (the "Indenture"), by and between the City and Simmons First Trust Company, N.A., Pine Bluff, Arkansas, as trustee (the "Trustee"), all as more particularly described in the Indenture. The Bonds shall be issued and secured pursuant to Ordinance No. 4389 of the City Council of the City which was adopted on May 7, 2002 (the "Authorizing Ordinance"), and pursuant to the Indenture. The Bonds shall have the maturities and interest rates as set forth in Exhibit A hereto. The Bonds shall be subject to redemption as set forth in the Indenture and in the Official Statement (hereinafter defined). The proceeds of the Bonds will be utilized (i) to finance a portion of the costs of the Project (as defined in the Indenture), (ii) to fund a debt service reserve, and (iii) to pay the costs of issuance of the Bonds. The City will undertake, pursuant to a Continuing Disclosure Agreement to be dated as of the date of delivery of the Bonds (the "Continuing Disclosure Agreement"), to provide certain annual financial and operating information and notices of the occurrence of certain events, if material, as required by Section (b)(5)(i) of Rule 15c2-12 under the Securities Exchange Act of 1934, as amended (the "Rule"). A description of this undertaking is set forth in the Preliminary Official Statement and will also be set forth in the Official Statement (each hereinafter defined). The City is not in default with respect to any of its obligations under previous undertakings pursuant to the Rule. In order to ensure compliance with the provisions of the Internal Revenue Code of 1986, as amended (the "Code"), the City will enter into a Tax Regulatory Agreement dated as of the date of delivery of the Bonds (the "Tax Regulatory Agreement"). 2. Bona Fide Public Offering. The Underwriter agrees to make a bona fide public offering of all of the Bonds at the offering prices set forth on the cover.nf the final Official Statement described below. 3. Delivery of Official Statement. (a) The City has previously provided the Underwriter with copies of its Preliminary Official Statement, including the cover page and the appendices thereto, dated June 5, 2002, relating to the Bonds (the "Preliminary Official Statement"). As of its date, the Preliminary Official Statement is "deemed final" by the City for purposes of SEC Rule 15c2 -12(b)(1). The Preliminary Official Statement, as amended to conform to the terms of this Bond Purchase Agreement, including Exhibit A hereto, and with such other changes and amendments as are mutually agreed to by the City and the Underwriter, is herein referred to as the "Official Statement." (b) The City agrees to deliver to the Underwriter, at such address as the Underwriter shall specify, as many copies of the final Official Statement dated June 12, 2002, relating to the Bonds as the Underwriter shall reasonably request as necessary to comply with paragraph (b)(4) of the Rule (as defined above) and with Rule G-32 and all other applicable rules of the Municipal Securities Rulemaking Board. The City agrees to deliver such final Official Statement within seven (7) business days after the execution hereof. 2 10-35375.04 (c) The City hereby authorizes and approves the Preliminary Official Statement and the final Official Statement, consents to their distribution and use by the Underwriter and authorizes the execution of the final Official Statement by a duly authorized officer of the City. (d) The Underwriter shall give notice to the City on the date after which no participating underwriter, as such term is defined in the Rule, remains obligated to deliver final Official Statements pursuant to paragraph (b)(4) of the Rule. 4. City's Representation and Warranties. The City represents and warrants to the Underwriter that: (a) The City is a duly organized and existing political subdivision under the Constitution and laws of the State of Arkansas (the "State"). The City is authorized by the provisions of the Act to issue the Bonds for the purpose of financing a portion of the Project. (b) The City has the full legal right, power and authority (i) to adopt the Election Ordinance levying the Sales and Use Tax, (ii) to adopt the Authorizing Ordinance authorizing the issuance of and sale of the Bonds, (iii) to enter into this Bond Purchase Agreement, the Indenture, the Continuing Disclosure Agreement and the Tax Regulatory Agreement, (iv) to levy the Sales and Use Tax, (v) to issue, sell and deliver the Bonds to the Underwriter as provided herein, (vi) to pledge irrevocably the receipts of the Sales and Use Tax to the payment of the principal of, premium, if any, and interest on the Bonds, and (vii) to carry out and consummate all other transactions contemplated by each of the aforesaid documents, and the City has complied with all provisions of applicable law, including the Act, in all matters relating to such transactions. (c) The City has duly authorized (i) the execution and delivery of the Bonds and the execution, delivery and due performance of this Bond Purchase Agreement, the Indenture, the Continuing Disclosure Agreement and the Tax Regulatory Agreement, (ii) the distribution and use of the Preliminary Official Statement and the execution, delivery and distribution of the final Official Statement, and (iii) the taking of any and all such actions as may be required on the part of the City to carry out, give effect to and consummate the transactions contemplated by such instruments. All consents or approvals necessary to be obtained by the City in connection with the foregoing have been received, and the consents or approvals so received remain still in full force and effect. (d) The Election Ordinance and the Authorizing Ordinance have been duly adopted by City Council of the City, are each in full force and effect and each constitutes the legal, valid and binding act of the City; and this Bond Purchase Agreement, the Indenture, the Continuing Disclosure Agreement and the Tax Regulatory Agreement, when executed and delivered, will constitute legal, valid and binding obligations of the City, and this Bond Purchase Agreement, the Indenture, the Continuing Disclosure Agreement and •the Tax Regulatory Agreement are enforceable against the City in 3 10-35375.04 accordance with their respective terms, except as enforceability thereof may be limited by bankruptcy, insolvency or other laws affecting creditors' rights generally. (e) When delivered to or at the direction of the Underwriter, the Bonds will have been duly authorized, executed, authenticated, issued and delivered and will constitute legal, valid and binding obligations of the City in conformity with the laws of the State of Arkansas, including the Act, and will be entitled to the benefit and security of the Authorizing Ordinance and the Indenture. (f) The City has duly approved and authorized the distribution and use of the Preliminary Official Statement and the execution, delivery and distribution of the Official Statement. (g) The information contained in the Preliminary Official Statement is, and as of the Closing Date such information in the final Official Statement will be, true and correct in all material respects, and the Preliminary Official Statement does not and the final Official Statement will not contain any untrue or misleading statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (h) If, at any time prior to the earlier of (i) receipt of notice from the Underwriter pursuant to Section 3(d) hereof that Official Statements are no longer required to be delivered under the Rule or (ii) 25 days after the Closing Date, any event occurs as a result of which the Official Statement, as then amended or supplemented, might include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the City shall promptly notify the Underwriter in writing of such event. Any information supplied by the City for inclusion in any amendments or supplements to the Official Statement will not contain any untrue or misleading statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Upon the request of the Underwriter therefor, the City shall prepare and deliver to the Underwriter, at the City's expense, as many copies of an amendment or supplement to the Official Statement which will correct any untrue statement or omission therein as the Underwriter may reasonably request. (i) Neither the adoption of the Authorizing Ordinance or the Election Ordinance, the execution and delivery of this Bond Purchase Agreement, the Bonds, the Indenture, the Continuing Disclosure Agreement or the Tax Regulatory Agreement, nor the consummation of the transactions contemplated herein or therein or the compliance with the provisions hereof or thereof will conflict with, or constitute on the part of the City a violation of. or a breach of or default under, (i) any statute, indenture, mortgage, commitment, note or other agreement or instrument to which the City is a party or by which it is bound, (ii) any provision of the Constitution of the State of Arkansas, or (iii) any existing law_ rule, regulation, ordinance, judgment, order or decree to which the City (or the members of its City Council or any of its officers in their respective capacities as such) is subject. All consents, approvals, authorizations and orders of governmental or 4 10-35375.04 regulatory authorities, if any, which are required for the City's execution and delivery of, consummation of the transactions contemplated by, and compliance with the provisions of this Bond Purchase Agreement, the Authorizing Ordinance, the Election Ordinance, the Bonds, the Indenture, the Continuing Disclosure Agreement and the Tax Regulatory Agreement have been obtained. (j) The City has never been in default at any time as to the payment of principal of or interest on any obligation which it has issued, including those which it has issued as a conduit for another entity, except as specifically disclosed in the Official Statement. (k) Except as is specifically disclosed in the Official Statement, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, pending or, to the best knowledge of the City, threatened, which in any way questions the powers of the City referred to in subparagraph 4(b) above, or the validity of any proceeding taken by the City in connection with the issuance of the Bonds or the levy of the Sales and Use Tax, or wherein an unfavorable decision, ruling or finding could materially adversely affect the transactions contemplated by this Bond Purchase Agreement, or of any other document or instrument required or contemplated by the Bond financing, or which, in any way, could adversely affect the validity or enforceability of the Authorizing Ordinance, the Election Ordinance, the Bonds, the Indenture, the Continuing Disclosure Agreement, the Tax Regulatory Agreement or this Bond Purchase Agreement or, to the knowledge of the City, which in any way questions the exclusion from gross income of the recipients thereof of the interest on the Bonds for federal income tax purposes or in any other way questions the status of the Bonds under federal or State of Arkansas tax laws or regulations. (1) Any certificate signed by any official of the City and delivered to the Underwriter shall be deemed a representation and warranty byy the City to the Underwriter as to the truth of the statements therein contained. (m) The City has not been notified of any listing or proposed listing by the Internal Revenue Service to the effect that it is a bond issuer whose arbitrage certifications may not be relied upon. (n) The collection history with respect to the City's previously levied sales and use taxes set forth in the Preliminary Official Statement under the caption entitled "HISTORICAL SALES AND USE TAX COLLECTIONS" is fair, accurate and complete. (o) The City will not knowingly take or omit to take any action, which action or omission will in any way cause the proceeds from the sale of the Bonds to be applied in a manner other than as provided in the Indenture, or which would cause the interest on the Bonds to be includable in gross income for federal income tax purposes. 5 10-35375.04 5. City's Covenants. The City covenants with the Underwriter as follows: (a) The City will cooperate with the Underwriter in qualifying the Bonds for offer and sale under the securities or Blue Sky laws of such jurisdictions of the United States as the Underwriter may request; provided, however, that the City shall not be required to consent to suit or to service of process in any jurisdiction. The City consents to the use by the Underwriter in the course of its compliance with the securities or Blue Sky laws of the various jurisdictions of the documents relating to the Bonds, subject to the right of the City to withdraw such consent for cause by written notice to the Underwriter. (b) Prior to the earlier of (i) receipt of notice from the Underwriter pursuant to Section 3(d) hereof that final Official Statements are no longer required under the Rule or (ii) 25 days after the Closing Date, the City shall provide the Underwriter with such information regarding the City, Sales and Use Tax receipts, and the current financial condition and ongoing operations of the City, all as the Underwriter may reasonably request. 6. Closing. At 10:00 a.m. Little Rock time on June 20, 2002, or at such other time and/or date as shall have been mutually agreed upon by the City and the Underwriter (the "Closing Date"), the City will deliver the Bonds, or cause the Bonds to be delivered, to or at the direction of the Underwriter, said Bonds to be in definitive form duly executed by the City and authenticated by Simmons First Trust Company, N.A., Pine Bluff, Arkansas, as trustee (the "Trustee"), together with the other documents hereinafter mentioned; and the Underwriter will accept such delivery and pay the Purchase Price of the Bonds by making a wire transfer of federal funds payable to the order of the Trustee for the account of the City. The Bonds shall be delivered to The Depository Trust Company in New York, New York, and the activities relating to the final execution and delivery of the Authorizing Ordinance, the Election Ordinance, the Indenture, the Continuing Disclosure Agreement and the Tax Regulatory Agreement and the other documents related to the Bonds and the payment for the Bonds and the delivery of the certificates, opinions and other instruments as described in Section 8 of this Bond Purchase Agreement shall occur in the offices of Kutak Rock LLP, 425 West Capitol Avenue, Suite 1100, Little Rock, Arkansas ("Bond Counsel") or at such other place as shall have been mutually agreed upon between the City and the Underwriter. The payment for the Bonds and simultaneous delivery of the Bonds to or at the direction of the Underwriter is herein referred to as the "Closing." 7. Underwriter's Right to Cancel. The Underwriter shall have the right to cancel its obligation to purchase the Bonds hereunder by notifying the City in writing or by telegram of its election to do so between the date hereof and the Closing, if at any time hereafter and prior to the Closing: (i) the House of Representatives or the Senate of the Congress of the United States, or a committee of either, shall have pending before it, or shall have passed or recommended favorably, legislation introduced previous to the date hereof, which legislation, if enacted in its form as introduced or as amended, would have the purpose or 6 10-35375.04 effect of imposing federal income taxation upon revenues or other income of the general character to be derived by the City or by any similar body under the Authorizing Ordinance or the Indenture or similar documents or upon interest received on obligations of the general character of the Bonds or the Bonds, or of causing interest on obligations of the general character of the Bonds, or the Bonds, to be includable in gross income for purposes of federal income taxation, and such legislation, in the Underwriter's opinion, materially adversely affects the market price of the Bonds; or (ii) a tentative decision with respect to legislation shall be reached by a committee of the House of Representatives or the Senate of the Congress of the United States, or legislation shall be favorably reported or rereported by such a committee or be introduced, by amendment or otherwise, in or be passed by the House of Representatives or the Senate, or recommended to the Congress of the United States for passage by the President of the United States, or be enacted or a decision by a federal court of the United States or the United States Tax Court shall have been rendered, or a ruling, release, order, regulation or official statement by or on behalf of the United States Treasury Department, the Internal Revenue Service or other governmental agency shall have been made or proposed to be made having the purpose or effect, or any other action or event shall have occurred which has the purpose or effect, directly or indirectly, of adversely affecting the federal income tax consequences of owning the Bonds or of any of the transactions contemplated in connection herewith, including causing interest on the Bonds to be included in gross income for purposes of federal income taxation, or imposing federal income taxation upon revenues or other income of the general character to be derived by the City or by any similar body under the Authorizing Ordinance or the Indenture or similar documents or upon interest received on obligations of the general character of the Bonds, or the Bonds which, in the opinion of the Underwriter, materially adversely affects the market price of or market for the Bonds; or (iii) legislation shall have been enacted, or actively considered for enactment with an effective date prior to the Closing, or a decision by a court of the United States shall have been rendered, the effect of which is that the Bonds, including any underlying obligations, or the Indenture, as the case may be, is not exempt from the registration, qualification or other requirements of the Securities Exchange Act of 1933, as amended and as then in effect, the Securities Exchange Act of 1934, as amended and as then in effect, or the Trust Indenture Act of 1939, as amended and as then in effect; or (iv) a stop order, ruling, regulation or official statement by the Securities and Exchange Commission or any other governmental agency having jurisdiction of the subject matter shall have been issued or made or any other event occurs, the effect of which is that the issuance, offering or sale of the Bonds, including any underlying obligations, or the execution and delivery of the Indenture as contemplated hereby or by the Official Statement, is or would be in violation of any provision of the federal securities laws, including the Securities Act of 1933, as amended and as then in effect, the Securities Exchange Act of 1934, as amended and as then in effect, or the Trust Indenture Act of 1939, as amended and as then in effect; or 7 10-35375.04 (v) any event shall have occurred or any information shall have become known to the Underwriter which causes the Underwriter to reasonably believe that the Official Statement as then amended or supplemented includes an untrue statement of a material fact, or omits to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; or (vi) there shall have occurred any outbreak of hostilities or any national or international calamity or crisis, including a financial crisis, the effect of which on the financial markets of the United States is such as, in the reasonable judgment of the Underwriter, would materially adversely affect the market for or market price of the Bonds; or (vii) there shall be in force a general suspension of trading on the New York Stock Exchange, the effect of which on the financial markets of the United States is such as, in the reasonable judgment of the Underwriter, would materially adversely affect the market for or market price of the Bonds; or (viii) a general banking moratorium shall have been declared by federal, New York or State authorities; or (ix) any proceeding shall be pending or threatened by the Securities and Exchange Commission against the City; or (x) additional material restrictions not in force as of the date hereof shall have been imposed upon trading in securities generally by any governmental authority or by any national securities exchange; or (xi) the New York Stock Exchange or other national securities exchange, or any governmental authority, shall impose, as to the Bonds or obligations of the general character of the Bonds, any material restrictions not now in force, or increase materially those now in force, with respect to the extension of credit by, or the charge to the net capital requirements of the Underwriter. 8. Conditions to Underwriter's Obligations. The obligation of the Underwriter to purchase the Bonds shall be subject (a) to the performance by the City of its obligations to be performed hereunder at and prior to the Closing, (b) to the accuracy of the representations and warranties of the City herein as of the date hereof and as of the time of the Closing, and (c) to the following conditions, including the delivery by the City of such documents as are enumerated herein in form and substance satisfactory to the Underwriter: (a) The Bonds shall have been duly authorized, executed and delivered in the forms approved by the City in the Indenture with only such changes therein as the Underwriter and the City shall mutually agree upon, which shall in all instances be as described in the final Official Statement; (b) At the time of Closing, (i) the Official Statement, this Bond Purchase Agreement, the Indenture, the Authorizing Ordinance, the Election Ordinance, the Continuing Disclosure Agreement and the Tax Regulatory Agreement shall be in full 8 10-35375.04 force and effect and shall not have been amended, modified or supplemented from the date hereof, except as may have been agreed to in writing by the Underwriter, (ii) the proceeds of the sale of the Bonds and other funds shall be deposited and applied as described in the Indenture, (iii) no default or event of default under the Indenture shall have occurred and be continuing, and (iv) no material adverse change affecting the City or the Sales and Use Tax shall have occurred, nor shall any development involving a prospective and material adverse change in, or affecting the business, financial condition, results of operations, prospects or properties of the City have occurred; (c) Receipt of fully executed originals of the Indenture, the Continuing Disclosure Agreement and the Tax Regulatory Agreement at or prior to the Closing; (d) At or prior to the Closing, the Underwriter shall receive the following documents in such number of counterparts as shall be mutually agreeable to the Underwriter and Bond Counsel: (1) A final approving opinion of Bond Counsel, dated the Closing Date, in substantially the form set forth in Exhibit B hereto; (2) A supplemental opinion of Bond Counsel, addressed to the City, the Trustee and the Underwriter and dated the Closing Date, in substantially the form set forth in Exhibit C hereto; (3) The Official Statement executed by a duly authorized officer of the City; (4) Certified copies of the Authorizing Ordinance and the Election Ordinance and all other ordinances and resolutions of the City relating to the Bonds; (5) Certified copies of the Notice of Election and Mayor's Proclamation of Election Results, together with proofs of publication thereof, (6) Photocopies of the Bonds as executed and delivered; (7) A letter from Standard & Poor's Ratings Services, a Division of The McGraw-Hill Companies, Inc., to the effect that the Bonds have been assigned a rating of no less than "AA-", which rating shall be in effect as of the Closing Date; (S) A certificate, in form and substance satisfactory to the Underwriter, of any duly authorized officer or official of the City satisfactory to the Underwriter, dated as of the Closing Date, to the effect that: (i) each of the City's representations, warranties and covenants contained herein are true and correct as of the Closing Date; (ii) the City has duly adopted the Authorizing Ordinance and the Election Ordinance by all action necessary under the Act and the laws and Constitution of the State of Arkansas, and has duly authorized the execution, delivery and due performance of the Bonds; the Indenture, the 9 10-35375.04 Continuing Disclosure Agreement, the Tax Regulatory Agreement, the Official Statement and this Bond Purchase Agreement; (iii) no litigation is pending, or to the knowledge of the officer or official of the City signing the certificate after due investigation and inquiry, threatened, to restrain or enjoin the issuance or sale of the Bonds or in any way affecting any authority for or the validity of the Bonds, the Sales and Use Tax, the Official Statement, the Authorizing Ordinance, the Election Ordinance, the Indenture, the Continuing Disclosure Agreement, the Tax Regulatory Agreement, or this Bond Purchase Agreement; (iv) the Bonds, the Indenture, this Bond Purchase Agreement, the Continuing Disclosure Agreement and the Tax Regulatory Agreement, as executed and delivered by the City, are in the form or in substantially the form approved for such execution by appropriate proceedings of the City; (v) since December 31, 2001, there has not been any material adverse change in the financial condition or results of operations of the City whether or not arising in the ordinary course of business, other than as set forth in the Official Statement; (vi) neither the Authorizing Ordinance nor the Election Ordinance have been amended, modified or repealed as of the Closing Date, and the Authorizing Ordinance and the Election Ordinance remain in full force and effect; (vii) none of the proceedings of the City taken preliminary to the issuance of the Bonds, as certified in such certificate, including the levy of the Sales and. Use Tax, have been in any manner repealed, amended or changed; (viii) the City has complied in all respects with the provisions of the Act and has full legal right, power and authority to levy the Sales and Use Tax and to issue the Bonds for the purposes stated in the Act and to enter into this Bond Purchase Agreement, to adopt the Authorizing Ordinance and the Election Ordinance, to issue, sell and deliver the Bonds as provided in this Bond Purchase Agreement, and to carry out and consummate all other transactions contemplated by this Bond Purchase Agreement, the Authorizing Ordinance, the Election Ordinance, the Indenture, the Continuing Disclosure Agreement and the Tax Regulatory Agreement; (ix) neither the Official Statement nor any amendment or supplement thereto contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; and (x) to the best knowledge of the officer or official of the City signing the certificate, no event affecting the City or the Sales and Use Tax has occurred since the date of the Official Statement which should be disclosed in the Official Statement for the purposes for which it is used that is necessary to disclose therein in order to make the statements and information therein not misleading in any respect; (9) An opinion of Kit Williams, Esq., City Attorney, dated the Closing Date and addressed to the Underwriter, Bond Counsel and the Trustee, to the effect that (i) the City is a duly organized and validly existing political subdivision and city of the first class, organized under the laws of the State of Arkansas. with full power and authority to adopt the Authorizing Ordinance and Election Ordinance, to levy the Sales and Use Tax, and to execute and deliver the Bonds, the Indenture, the Continuing Disclosure Agreement, the Tax Regulatory Agreement and this Bond Purchase Agreement; (ii) the City has duly approved the Preliminary Official Statement and the Official Statement; (iii) the 10 10-35375.04 Authorizing Ordinance and the Election Ordinance have been duly adopted by the City by all action necessary under the Act and the laws and Constitution of the State of Arkansas, and remains in full force and effect; (iv) the Indenture, the Continuing Disclosure Agreement, the Tax Regulatory Agreement and this Bond Purchase Agreement have been duly authorized, approved, executed and delivered by the City and, subject to the extent that the enforceability of the rights and remedies set forth therein may be limited by bankruptcy, insolvency or other laws affecting creditors' rights generally, constitute valid and binding agreements of the City enforceable in accordance with their terms; (v) the information in the Official Statement under the captions "THE PROJECT," "THE CITY" and "LEGAL MATTERS" (apart from financial or statistical data contained or incorporated therein, as to which no view need be expressed) is fair, accurate and complete and does not omit any matter which, in such counsel's opinion, for the purposes for which the Official Statement is to be used, should be included or referred to therein; (vi) excepting those matters discussed in the Official Statement, there is no action, suit or proceeding at law or in equity before or by any court, public board or body, pending or threatened, against or affecting the City, challenging the validity of the transactions contemplated by the Official Statement or the validity of the Bonds, the Sales and Use Tax, the Authorizing Ordinance, the Election Ordinance, the Indenture, the Continuing Disclosure Agreement, the Tax Regulatory Agreement or this Bond Purchase Agreement and, to the best of such counsel's knowledge, there is no investigation, pending or threatened, and no threatened action, suit or proceeding involving any of the matters hereinabove mentioned in this clause (vi); (vii) the execution and delivery of the Authorizing Ordinance, the Election Ordinance, the Indenture, the Continuing Disclosure Agreement, the Tax Regulatory Agreement and this Bond Purchase Agreement, and compliance with the provisions hereof and thereof, under the circumstances contemplated hereby and thereby, do not and will not in any material respect conflict with or constitute on the part of -the City a breach of or default under any agreement or other instrument to which the City is a party or any existing law, regulation, court order or consent decree to which the City is subject; and (viii) based upon the examinations which such counsel has made as counsel to the City, which shall be specified, nothing has come to such counsel's attention which would lead such counsel to believe that the Official Statement (except for the financial statements and other financial data included in the Official Statement, as to which no view need be expressed) contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (10) Evidence that Federal Form 8038-G has been executed by the City and is ready for filing with the Internal Revenue Service. (11) Evidence that, except as disclosed in the Official Statement, all necessary approvals, whether legal or administrative, have been obtained from applicable federal, state and local entities and agencies; and 11 10-35375.04 (12) Such additional legal opinions, certificates, proceedings, instruments and other documents as the Underwriter and Bond Counsel may reasonably request to evidence compliance by the City with legal requirements, the truth and accuracy, as of the time of Closing, of the representations of the City herein contained and the due performance or satisfaction by the City at or prior to such time of all agreements then to be performed and all conditions then to be satisfied. If the City shall be unable to satisfy the conditions to the obligations of the Underwriter contained in this Bond Purchase Agreement, or if the obligation of the Underwriter to purchase and accept delivery of the Bonds shall be terminated for any reason permitted by this Bond Purchase Agreement, this Bond Purchase Agreement shall terminate and neither the Underwriter nor the City shall be under further obligation hereunder; except that the respective obligations to pay expenses, as provided in Section 12 hereof, shall continue in full force and effect. 9. Conditions to Obligations of the City. The obligations of the City hereunder are subject to the performance by the Underwriter of its obligations hereunder. 10. Survival. All representations, warranties and agreements of the City shall remain operative and in full force and effect, regardless of any investigations made by or on behalf of the Underwriter, and shall survive the Closing. The obligations of the City under Sections 11 or 12 hereof shall survive any termination of this Bond Purchase Agreement by the Underwriter pursuant to the terms hereof 11. Indemnification. The City, to the extent permitted by law, agrees to indemnify and hold harmless the Underwriter, each member, officer, director, partner or employee of the Underwriter and each person who controls the Underwriter within the meaning of Section 15 of the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as amended (collectively called the "Indemnified Parties"), against any and all losses, claims, damages, liabilities or expenses (including any legal or other expenses incurred by an Indemnified Party in connection with investigating any claims against an Indemnified Party and defending any actions) whatsoever caused by any untrue statement or misleading statement or alleged untrue statement or alleged misleading statement of a material fact contained in the Official Statement or caused by any omission or alleged omission from the Official Statement of any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading insofar as such losses, claims, damages, liabilities or expenses are caused by any such untrue or misleading statement or omission or alleged untrue or misleading statement or omission in the information contained in the Official Statement; provided, however, that the City shall not be liable to an Indemnified Party in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in any of such documents in reliance upon and in conformity with written information furnished to the City by the Underwriter specifically for use therein. No Indemnified Parties shall be indemnified hereunder for any losses, claims, damages or liabilities resulting from the negligence of such Indemnified Parties. 12 10-35375.04 12. Payment of Expenses. The City will pay or cause to be paid all reasonable expenses incident to the performance of its obligations under this Bond Purchase Agreement, including, but not limited to, expenses of mailing or delivery of the Bonds, costs of printing the Bonds, the Preliminary and final Official Statements, any amendment or supplement to the Preliminary or final Official Statement and this Bond Purchase Agreement, fees and disbursements of Bond Counsel, any fees charged by investment rating agencies for the rating of the Bonds, bond insurance premiums, if any, fees of the Trustee and any paying agent fees, and any fees and disbursements in connection with the qualification of the Bonds for sale under the securities or "Blue Sky" laws of the various jurisdictions and the preparation of "Blue Sky" memoranda. In the event this Bond Purchase Agreement shall terminate because of the default of the Underwriter, the City will, nevertheless, pay, or cause to be paid, all of the expenses specified above. The Underwriter shall pay all advertising expenses in connection with the public offering of the Bonds, and all other expenses incurred by it in connection with the public offering and distribution of the Bonds, including the fees and expenses of any counsel retained by the Underwriter. If the City defaults under this Bond Purchase Agreement, the Underwriter may bring whatever legal action it may have against the City to recover damages, if any, incurred by the Underwriter. 13. Notices. Any notice or other communication to be given to the City under this Bond Purchase Agreement may be given by delivering the same in writing to the Mayor at the address set forth above, and any notice or other communication to be given to the Underwriter under this Bond Purchase Agreement may be given by delivering the same in writing to Stephens Inc., 3425 North Futrall, Suite 201, Fayetteville, AR 72703, Attention: Mr. Dennis Hunt. 14. Nonassignability. This Bond Purchase Agreement is made solely for the benefit of the City and the Underwriter (including any successor or assign of the Underwriter), and no other person, including any purchaser of the Bonds, shall acquire or have any right hereunder or by virtue hereof. 15. Applicable Law. This Bond Purchase Agreement shall be governed by and construed in accordance with the laws of the State of Arkansas. 13 10-35375.04 16. Counterparts. This Bond Purchase Agreement shall become effective upon your acceptance hereof and may be executed in counterparts, each of which shall be regarded as an original and all of which shall constitute one and the same document. Very truly yours, STEPHENSINC. UR Authorized Representative Accepted and agreed to as of the date first above written: CITY OF FAYETTEVILLE, ARKANSAS Title: Mayor 14 10-35375.04 EXHIBIT A MATURITY SCHEDULE (June 1) Principal Interest Maturity Amount Rate Price 2003 $6,455,000 2.00% 100.280% 2004 6,365,000 4.00% 103.198% 2005 5,275,000 4.00% 103.156% 2006* 4,205,000 3.20% 100.000% 2007 2,700,000 3.20% 100.000% (with accrued interest on all Bonds from June 1, 2002) * Mandatory sinking fund redemption. 10-35375.04 A-1 EXHIBIT B PROPOSED FORM OF BOND COUNSEL APPROVING OPINION Upon delivery of the Bonds in definitive form, Kutak Rock LLP, Little Rock, Arkansas, proposes to deliver its approving opinion in substantially the following form: June 20, 2002 City of Fayetteville, Arkansas Fayetteville, Arkansas Simmons First Trust Company, N.A., as Trustee Little Rock, Arkansas Stephens Inc. Little Rock, Arkansas $25,000,000 City of Fayetteville, Arkansas Sales and Use Tax Capital Improvement Bonds Series 2002 Ladies and Gentlemen: We have acted as bond counsel in connection with the issuance and sale by the City of Fayetteville, Arkansas (the "City"), a political subdivision of the State of Arkansas, of its $25,000,000* Sales and Use Tax Capital Improvement Bonds, Series 2002 (the `Bonds"). The Bonds are being issued pursuant to the provisions of the Constitution and laws of the State of Arkansas, including, particularly, Amendment 62 and Arkansas Code Annotated (1998 Repl. & Supp. 2001) §%14-164-301 et seq. (as from time to time amended, the "Act"), pursuant to Ordinance No. 4389 of the City, duly adopted and approved on May 7, 2002 (the "Authorizing Ordinance"), and pursuant to a Trust Indenture dated as of June 1, 2002 (the "Indenture"), by and between the City and Simmons First Trust Company, N.A., as trustee (the "Trustee"). Reference is hereby made to the Indenture and to all indentures supplemental thereto for the provisions, among others, with respect to the conditions for the issuance of parity debt by the City, the nature and extent of the security for the Bonds, the rights, duties and obligations of the City, the Trustee and the Holders of the Bonds, and the terms upon which the Bonds are issued and secured. Reference is made to an opinion of even date herewith of Kit Williams. Esq., City Attorney, a copy of which is on file with the Trustee, with respect, among other matters, to the status and valid existence of the City, the power of the City to adopt the Election Ordinance and the Authorizing Ordinance and to enter into and perform its obligations under the Indenture, the valid adoption of the Election Ordinance and the Authorizing Ordinance, and the due 10-35375.04 B -I authorization, execution and delivery of the Indenture by the City, and with respect to the Indenture being enforceable upon the City. We have examined the law and such certified proceedings and other papers as we have deemed necessary to render this opinion. As to questions of fact material to our opinion, we have relied upon the representations of the City contained in the Election Ordinance, the Authorizing Ordinance and the Indenture and in the certified proceedings and other certifications of public officials famished to us, without undertaking to verify the same by independent investigation. Based upon the foregoing, we are of the opinion, under existing law, as follows: 1. The City is duly created and validly existing as a municipal corporation of the State of Arkansas. Pursuant to the Constitution and laws of the State of Arkansas, including, particularly, Amendment 62 and the Act, the City is empowered to adopt the Election Ordinance and the Authorizing Ordinance, to execute and deliver the Indenture, to perform the agreements on its part contained therein, and to issue the Bonds. 2. The Authorizing Ordinance has been duly adopted by the City and constitutes a valid and binding obligation of the City enforceable upon the City in accordance with its terms. 3. The Indenture has been duly authorized, executed and delivered by the City and is a valid and binding obligation of the City enforceable upon the City in accordance with its terms. 4. The Bonds have been validly authorized, executed, issued and delivered by the City and represent valid and binding special obligations of the City. The principal, premium, if any, and interest on the Bonds shall be payable from, and shall be secured by an assignment and pledge by the City to the Trustee of, the receipts of the Sales and Use Tax (as defined in the Indenture). 5. The Sales and Use Tax receipts have been duly and validly assigned and pledged to the Trustee under the Indenture, and the Indenture creates, as security for the Bonds, a valid security interest in the Sales and Use Tax receipts. Under the laws of the State of Arkansas, including, particularly, Arkansas Code Annotated (2001 Repl.) Section 4-9-109(d)(14), the pledge, assignment and security interest in the Sales and Use Tax receipts securing the Bonds is and shall be prior to any judicial lien hereafter imposed on the Sales and Use Tax receipts to enforce a judgment against the City on a simple contract, and it is not necessary to file a Uniform Commercial Code financing statement in order to perfect a security interest in the Sales and Use Tax receipts. 6. The interest on the Bonds is excluded from gross income for federal income tax purposes and is not an item of tax preference for purposes of the federal alternative minimum tax imposed on individuals and corporations; it should be noted, however, that, for the purpose of computing the alternative minimum tax imposed on corporations (as defined for federal income tax purposes), such interest is taken into account in determining adjusted current earnings for purposes of such alternative minimum tax. The opinions set forth in the preceding sentence are subject to the condition that the City comply with all requirements of the Internal Revenue Code of 1986, as amended, that must be satisfied prior to or subsequent to the issuance of the Bonds in 10-35375.04 B-2 order that the interest thereon be, or continue to be, excluded from gross income for federal income tax purposes. The City has covenanted to comply with each such requirement. Failure to comply with certain of such requirements may cause the inclusion of interest on the Bonds in gross income for federal income tax purposes to be retroactive to the date of issuance of the Bonds. We express no opinion regarding other federal tax consequences arising with respect to the Bonds. 7. The interest on the Bonds is exempt from all state, county and municipal taxes in the State of Arkansas. 8. The Bonds are exempt from registration pursuant to the Securities Act of 1933, as amended, and the Indenture is not required to be qualified under the Trust Indenture Act of 1939, as amended, in connection with the offer and sale of the Bonds. It is to be understood that the rights of the registered owners of the Bonds and the enforceability of the Bonds, the Authorizing Ordinance and the Indenture may be subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights heretofore or hereafter enacted to the extent constitutionally applicable and that their enforcement may also be subject to the exercise of judicial discretion in appropriate cases. Very truly yours, 10-35375.04 B-3 EXHIBIT C PROPOSED FORM OF BOND COUNSEL SUPPLEMENTAL OPINION June 20, 2002 City of Fayetteville, Arkansas Fayetteville, Arkansas Simmons First Trust Company, N.A., as Trustee Pine Bluff, Arkansas Stephens Inc. Little Rock, Arkansas $25,000,000 City of Fayetteville, Arkansas Sales and Use Tax Capital Improvement Bonds Series 2002 Ladies and Gentlemen: This opinion supplements our bond approving opinion, dated the date hereof, relating to the above -captioned bonds (the "Bonds"). Except as otherwise defined herein, the terms used herein shall have the meanings prescribed for them in said opinion. We have examined the law and such certified proceedings and other papers as we have deemed necessary to render this opinion.. As to questions of fact material to our opinion, we have relied upon the representations of the City contained in the Indenture and in the certified proceedings and other certifications of public officials furnished to us, without undertaking to verify the same by independent investigation. In addition to the documents specifically mentioned in the approving opinion, in connection with this opinion we have also examined: (a) An executed counterpart of the Bond Purchase Agreement dated June 12, 2002 (the "Bond Purchase Agreement"), by and between the City and Stephens Inc., as underwriter (the "Underwriter"); (b) An executed counterpart of the Continuing Disclosure Agreement dated June 20, 2002 (the "Disclosure Agreement"), by and between the City and Simmons First Trust Company, N.A., as trustee (the "Trustee"); (c) An executed counterpart of the Tax Regulatory Agreement dated June 20, 2002 (the "Tax Regulatory Agreement"), by and between the City and the Trustee; and 10-35375.04 C-1 (d) Portions of the Official Statement dated June 12, 2002, with respect to the Bonds (the "Official Statement"), captioned "INTRODUCTORY STATEMENT," "THE SERIES 2002 BONDS," "SECURITY FOR THE BONDS," "ESTIMATED SOURCES AND USES OF FUNDS," "THE SALES AND USE TAX," "DEFINITIONS OF CERTAIN TERMS," "SUMMARY OF THE INDENTURE," "SUMMARY OF THE CONTINUING DISCLOSURE AGREEMENT," "TAX EXEMPTION," and "APPENDIX A — Form of Opinion of Bond Counsel" (the "Relevant Captions") insofar as they relate to this opinion. Based on our examination, we are of the opinion, as of the date hereof and under existing law, as follows: 1. The Bond Purchase Agreement has been duly authorized, executed and delivered by the City and, assuming due authorization, execution and delivery by the Underwriter, the Bond Purchase Agreement constitutes the valid and binding agreement of the City enforceable in accordance with its terms. 2. The Disclosure Agreement has been duly authorized, executed and delivered by the City and, assuming due authorization, execution and delivery by the Trustee, the Disclosure Agreement constitutes the valid and binding agreement of the City enforceable in accordance with its terms. 3. The Tax Regulatory Agreement has been duly authorized, executed and delivered by the City and, assuming due authorization, execution and delivery by the Trustee, the Tax Regulatory Agreement constitutes the valid and binding agreement of the City enforceable in accordance with its terms. . 4. The statements contained in the Official Statement under the Relevant Captions, insofar as such statements purport to summarize certain provisions of the Bonds, the Indenture and the Continuing Disclosure Agreement, or conclusions of law and legal opinions, are true, accurate and correct summaries thereof in all material respects and do not omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The enforceability of the respective obligations of the parties to the documents and other items described above, and the availability of certain rights and remedies provided for therein, may be limited by bankruptcy, receivership, insolvency, reorganization, moratorium, marshalling or other similar statutes or rules of law affecting creditors' rights and remedies, to general principles of equity and to the discretion of any court in granting any relief or issuing any order, whether the proceeding is considered a proceeding at law or equity. In particular, the right to indemnification under any of the documents or other items described above may be limited by federal of state securities laws or by the public policy underlying such laws. 10-35375.04 C-2 This opinion is being rendered to you solely for your use and benefit and may not be relied upon in any manner, nor used, by any other person. Very truly yours, 10-35375.04 C-3 HP LaserJet 3200 (4r, FAYETTEVILLE CITY 2ND FLOOR i n v e n t 5015758273 JUN -4-2002 12:22PM Job Date Time Type Identification Duration 66 6/ 4/2002 12:21:28PM Send 97187490 0:59 FACSIMILE TRANSMISSION COVER SHEET M FAYETTEVILLE City of Fayetteville 113 West Mountain Fayetteville, Arkansas 72701 FAX Number: (501) 575-8273 Ilhamminion cannot he read tinily please cell beck as soon as possible as the number listed below. Thank you. 0 ATTN: FROM: PHONE: ;e -,y/ DATE: 6/V/aa-- NUMBER OF PAGES (Including cover sheet) _a NOTES: Pages 2 Result OK City of Fayetteville, Arkansas 1% City sales tax collections by revenue month For the twelve-month periods ended March 31, 2001 and March 31, 2002 Revenue Period end Period end Month 03/31/01 03/31/2002 April 967,649 1,027,213 May 945,472 889,112 June 979,946 1,040,998 July 977,947 1,021,266 August 928,382 950,268 September 1,023,210 1,049,116 October 1,013,442 1,031,323 November 861,946 999,997 December 923,826 1,008,762 January 1,166,250 1,309,304 February 892,148 938,010 March 859,418 924,155 11,539,636 12,189,524 FAYE'T'TEVILLE THE CITY OF FAYETTEVILLE, ARKANSAS DEPARTMENTAL CORRESPOND To: Ted Webber, Administrative Services From: Heather Woodruff, City Clerk Date: May 8, 2002 RECEIVED MAY 30 2002 ACCTG. DEPT Please find attached a copy of Ordinance No. 4389-02 authorizing the issuance and sale of Sales and Use Tax Capital Improvement Bonds for the Wastewater System Improvement Project. The original will be microfilmed and filed with the City Clerk cc: Nancy Smith, Internal Auditor EmmaBadgley, Accounting Division Marsha Farthing, Accounting Division Stephen Davis, Budget & Research i ORDINANCE NO. 4389 AN ORDINANCE AUTHORIZING THE ISSUANCE AND SALE OF NOT TO EXCEED $25,000,000 OF SALES AND USE TAX CAPITAL IMPROVEMENT BONDS, SERIES 2002, BY THE CITY OF FAYETTEVILLE, ARKANSAS FOR THE PURPOSE OF FINANCING A PORTION OF THE COST OF IMPROVEMENTS TO THE CITY'S WASTEWATER TREATMENT, SEWERAGE AND RELATED FACILITIES; AUTHORIZING THE EXECUTION AND DELIVERY OF A TRUST INDENTURE PURSUANT TO WHICH THE BONDS WILL BE ISSUED AND SECURED; AUTHORIZING THE EXECUTION AND DELIVERY OF AN OFFICIAL STATEMENT PURSUANT TO WHICH THE BONDS WILL BE OFFERED; AUTHORIZING THE EXECUTION AND DELIVERY OF A BOND PURCHASE AGREEMENT PROVIDING FOR THE SALE OF THE BONDS; AUTHORIZING THE EXECUTION AND DELIVERY OF A CONTINUING DISCLOSURE AGREEMENT; AND PRESCRIBING OTHER MATTERS RELATING THERETO. WHEREAS, the City Council of the City of Fayetteville, Arkansas (the "City") has determined that there is a great need for a source of revenue to finance the costs of acquisition, construction, reconstruction, extension, improving and equipping of wastewater treatment plants, sewerage and related facilities (the "Project"); and WHEREAS, the City is authorized and empowered under the provisions of the Constitution and laws of the State of Arkansas, including particularly Amendment 62 to the Constitution of the State of Arkansas ("Amendment 62") and Arkansas Code Annotated (1998 Repl. & 2001 Supp.) Sections 14-164-301 et seq. (as from time to time amended, the "Local Government Bond Act"), to issue and sell its capital improvement bonds to finance the costs of various capital improvements such as those comprising the Project, which capital improvement bonds may be secured by and payable from the receipts of the special city-wide sales and use tax authorized by the Local Government Bond Act; and WHEREAS, pursuant to the provisions of Ordinance No. 4327 of the City, adopted and approved on August 7, 2001 (the "Election Ordinance"), there was submitted to the qualified electors of the City the question of the issuance of not to exceed $125,000,000 in aggregate principal amount of capital improvement bonds pursuant to Amendment 62 and the Local Government Bond Act to finance the Project improvements described in the Election Ordinance, said bonds to be secured by a pledge of and lien upon all of the receipts of a special city-wide sales and use tax levied at the rate of three-quarters of one percent (0.75%) pursuant to the Local Government Bond Act (the "Sales and Use Tax"); and WHEREAS, at a special election held November 6, 2001, a majority of the qualified electors of the City voting on the question approved the issuance of said capital improvement bonds (and the corresponding levy of the Sales and Use Tax and the pledge of Sales and Use Tax receipts to the payment of the capital improvement bonds); and 10-34907.02 Ord. 4389 WHEREAS, as authorized under the provisions of Amendment 62 and the Local Government Bond Act and as approved by the qualified electors of the City, the City has now determined to issue and sell its Sales and Use Tax Capital Improvement Bonds, Series 2002, in the principal amount of not to exceed $25,000,000 (the "Bonds"), in order to provide for the funding of a portion of the Project; and WHEREAS, as authorized by the provisions of the Election Ordinance, the City has previously made arrangements for the sale of the Bonds to Stephens Inc., Little Rock, Arkansas (the "Underwriter"), pursuant to the terms of a Bond Purchase Agreement between the City and the Underwriter (the "Bond Purchase Agreement") in substantially the form presented to the City Council before this meeting; NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Fayetteville, Arkansas that: Section 1. Under the authority of the Constitution and laws of the State of Arkansas, including particularly Amendment 62 to the Constitution of the State of Arkansas and the Local Government Bond Act, there is hereby authorized the issuance of bonds of the City to be designated as "Sales and Use Tax Capital Improvement Bonds, Series 2002" (the "Bonds"). The Bonds shall be issued in the original aggregate principal amount of not to exceed Twenty -Five Million Dollars ($25,000,000), shall mature not later than December 31, 2009, and shall bear interest at the rates specified in the Bond Purchase Agreement. The average yield on the Bonds as a whole shall not exceed 4.00% per annum, and the yield on no single Bond shall exceed 4.00%. The proceeds of the Bonds will be utilized to finance a portion of the cost of the acquisition, construction, reconstruction, extension, improving and equipping of the Project, to establish a debt service reserve for the Bonds or purchase a surety bond for reserve purposes, to pay a premium for bond insurance, if deemed economically beneficial, and to pay printing, underwriting, legal and other expenses incidental to the issuance of the Bonds. The Bonds shall be issued in the forms and denominations, shall be dated, shall be numbered, shall mature, shall be subject to redemption prior to maturity, and shall contain such other terms, covenants and conditions, all as set forth in the Trust Indenture submitted at this meeting. The Mayor is hereby authorized and directed to execute and deliver the Bonds in one or more series, each series to be in substantially the form thereof contained in the Trust Indenture submitted to this meeting, and the City Clerk is hereby authorized and directed to execute and deliver the Bonds and to affix the seal of the City thereto, and the Mayor and City Clerk are hereby authorized and directed to cause the Bonds to be accepted and authenticated by the Trustee. The Mayor is hereby authorized to confer with the Trustee, the Underwriter and Kutak Rock LLP, Little Rock, Arkansas ("Bond Counsel"), in order to complete the Bonds in substantially the form contained in the Trust Indenture submitted at this meeting, with such changes as shall be approved by such persons executing the Bonds, their execution to constitute conclusive evidence of such approval. Section 2. In order to pay the principal of and interest on the Bonds as they mature or are called for redemption prior to maturity, there is hereby pledged all of the receipts of the Sales and Use Tax levied by the Election Ordinance. The levy and collection of the Sales and Use Tax shall continue until such time as the Bonds are no longer outstanding or sufficient funds are on 10-34907.02 2 Ord. 4389 deposit with the Trustee under the Trust Indenture to redeem the Bonds in full. The City covenants and agrees that all receipts from the Sales and Use Tax will be accounted for separately as special funds on the books of the City, and receipts of said Sales and Use Tax will be deposited and will be used solely as provided in the Trust Indenture. Section 3. To prescribe the terms and conditions upon which the 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 "Trust Indenture"), by and between the City and Simmons First Trust Company, N.A., Pine Bluff, Arkansas (the "Trustee"), and the City Clerk is hereby authorized and directed to execute and acknowledge the Trust Indenture and to affix the seal of the City thereto, and the Mayor and the City Clerk are hereby authorized and directed to cause the Trust Indenture to be accepted, executed and acknowledged by the Trustee. The Trust Indenture is hereby approved in substantially the form submitted at this meeting, including, without limitation, the provisions thereof pertaining to the pledge of Sales and Use Tax receipts and the terms of the Bonds. The Mayor is hereby authorized to confer with the Trustee, the Underwriter and Bond Counsel in order to complete the Trust Indenture in substantially the form submitted at this meeting, with such changes as shall be approved by such persons executing the Trust Indenture, their execution to constitute conclusive evidence of such approval. (Advice is given that a copy of the Trust Indenture in substantially the form authorized to be executed is on file with the City Clerk and is available for inspection by any interested person.) Section 4. There is hereby authorized and approved a Preliminary Official Statement of the City, including the cover page and appendices attached thereto, relating to the Bonds. The Preliminary Official Statement is hereby "deemed final" by the City within the meaning of U.S. Securities and Exchange Commission Rule 15c2-12. The distribution of the Preliminary Official Statement is hereby approved. The Preliminary Official Statement, as amended to conform to the terms of the Bond Purchase Agreement, including Exhibit A thereto, and with such other changes and amendments as are mutually agreed to by the City and the Underwriter, is herein referred to as the "Official Statement," and the Mayor is hereby authorized to execute the Official Statement for and on behalf of the City. The Official Statement is hereby approved in substantially the form of the Preliminary Official Statement submitted at this meeting, and the Mayor is hereby authorized to confer with the Trustee, the Underwriter and Bond Counsel in order to complete the Official Statement in substantially the form of the Preliminary Official Statement submitted at this meeting, with such changes as shall be approved by such persons, the Mayor's execution to constitute conclusive evidence of such approval. (Advice is given that a copy of the Preliminary Official Statement is on file with the City Clerk and is available for inspection by any interested person.) Section 5. In order to prescribe the terms and conditions upon which the Bonds are to be sold to the Underwriter, the Mayor is hereby authorized and directed to execute a Bond Purchase Agreement on behalf of the City, to be dated as of the date of its execution (the "Bond Purchase Agreement"), by and between the City and the Underwriter, and the Bond Purchase Agreement is hereby approved in substantially the form submitted at this meeting, and the Mayor 10-34907.02 3 Ord. 4389 is hereby authorized to confer with the Underwriter and Bond Counsel in order to complete the Bond Purchase Agreement in substantially the form submitted at this meeting, with such changes as shall be approved by such persons executing the Bond Purchase Agreement, their execution to constitute conclusive evidence of such approval. (Advice is given that a copy of the Bond Purchase Agreement in substantially the form authorized to be executed is on file with the City Clerk and is available for inspection by any interested person.) Section 6. In order to provide for continuing disclosure of certain financial and operating information with respect to the Sales and Use Tax and the City in compliance with the provisions of Rule 15c2-12 of the U. S. Securities and Exchange Commission, the Mayor is hereby authorized and directed to execute a Continuing Disclosure Agreement to be dated as of the date of its execution (the "Continuing Disclosure Agreement"), by and between the City and the Trustee, and the Mayor is hereby authorized and directed to cause the Continuing Disclosure Agreement to be executed by the Trustee. The Continuing Disclosure Agreement is hereby approved in substantially the form submitted at this meeting, and the Mayor is hereby authorized to confer with the Trustee, the Underwriter and Bond Counsel in order to complete the Continuing Disclosure Agreement in substantially the form submitted at this meeting, with such changes as shall be approved by such persons executing the Continuing Disclosure Agreement, their execution to constitute conclusive evidence of such approval. (Advice is given that a copy of the Continuing Disclosure Agreement in substantially the form authorized to be executed is on file with the City Clerk and is available for inspection by any interested person.) Section 7. In order to secure lower interest rates on the Bonds, the Underwriter has proposed that the City consider the purchase of a policy of bond insurance with a portion of the proceeds of the Bonds, which policy would guarantee the payment of the principal of and interest on the Bonds when due. If deemed economically advantageous by the Mayor, upon the advice of the Underwriter, the Mayor is hereby authorized to execute an insurance commitment and to do any and all things necessary to accomplish the delivery of a bond insurance policy with respect to the Bonds. Section 8. The Mayor and City Clerk, for and on behalf of the City, are hereby authorized and directed to do any and all things necessary to effect the issuance, sale, execution and delivery of the Bonds and to effect the execution and delivery of the Trust Indenture, the Bond Purchase Agreement, the Official Statement, the Continuing Disclosure Agreement and a Tax Regulatory Agreement relating to the tax exemption of interest on the Bonds, and to perform all of the obligations of the City under and pursuant thereto. The Mayor and the City Clerk are 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 9. As previously provided in the Election Ordinance, Kutak Rock LLP, Little Rock, Arkansas, is hereby confirmed as Bond Counsel on behalf of the City in connection with the issuance and sale of the Bonds. 10-34907.02 4 .Ord. 4389 Section 10. The provisions of this Ordinance are hereby declared to be severable, and if any section, phrase or provision shall for any reason be declared to be illegal or invalid, such declaration shall not affect the validity of the remainder of the sections, phrases or provisions of this Ordinance. Section 11. All ordinances, resolutions and parts thereof in conflict herewith are hereby repealed to the extent of such conflict. PASSED and APPROVED this the 7`" day of May, 2002. APPROVED: By:lit24. DA GOODY, Mayor ATTEST!t.1 t .l / r , 10-34907.02 5 FA YETTEVILLE THE CITY OF FAYETTEVILLE, ARKANSAS ADMINISTRATIVE SERVICES DEPARTMENTAL CORRESPONDENCE To: Mayor and City Council t. From: Ted H. Webber, Director of Administrative Servic'N 1 / )J(� Date: April 19, 2002 Subject: Sales and Use Tax Bond Ordinance for the Wastewater System Improvements Project Background On November 6, 2001, voters of the City of Fayetteville approved a Sales and Use Tax to repay up to $125 million of sales tax bonds whose proceeds will, in turn, be used pay for the planning and construction of wastewater system improvements. The Arkansas Soil and Water Conservation Commission has earmarked up to $100 million for a State Revolving Fund (SRF) loan, at an interest rate of 3%, to partially finance the cost of these improvements. On the SRF application, the City requested funding for the entire project cost. However, the State agency did not award the entire requested amount and it cannot guarantee that future SRF funding will be available for the project cost not already set aside. This requires the City to consider the use of non-SRF financing for the remaining cost of the project. The City's Financial Advisor, Stephens, Inc., has recommended that the City at this time issue additional bonds on the open market to cover this remaining cost and provide the City with the greatest flexibility to finance this project. The recommended approach is to issue $25 million in short term sales tax bonds and subsequently downsize the $100 million SRF loan as dictated by actual project costs. This short term approach is at very competitive interest rates and results in less overall interest costs for the project. Why formulate a bond issue at this time? Amendment 62 to the Arkansas Constitution places a limit on the amount of interest that the City can pay on bonds that it issues. For any sales tax bonds issued to finance the costs of the Wastewater System Improvement Project, the constitution places a limit on bond interest paid, which is a maximum of 2% above the Federal Discount Rate on the date of the election when the tax collections were authorized by the voters. The election for the Water and Sewer Sales and Use Tax Bonds was November 6, 2001 and the Federal Discount Rate on that day was 2%. This means that, per the Arkansas Constitution, any bond issue that the City sells pursuant to the election on November 8, 2001, must have a coupon rate less than the mandated ceiling of 4% Page 1 of 2 Due to the uncertainties of the financial markets and their volatility, the City's ability to place these bonds within the constraints of Amendment 62 of the State Constitution may become severely limited. When bond rates rise, underthese constitutional usury limits, the City is very limited in how much capital it can raise beyond the SRF loan proceeds which may be needed for the remaining unfunded Wastewater Systems Improvement Project cost. Therefore, the City has a real need to pursue a bond issue at this time. If the City does not pursue this in the immediate future, depending on the speed with which the bond rates rise, then the City may be prohibited forever from selling bonds that can be repaid by the Sales and Use Tax proceeds. The project's implementation plan, as being developed by the Public Works Department, anticipates that significant expenditures will be required in the near term as the design, segmented construction and priority items of the project are completed. The $100 million SRF loan proceeds are not available to the City until the loan is closed, following the formal approval of the project's design and the bidding of the resultant contracts. Accordingly, the sale of this portion of the bonds now will provide interim funding for these required activities and will also be used to pay those costs that are not allowable under the SRF rules (these costs are generally for real estate easements and right-of-way acquisitions). Recommendation: On May 7, 2002, we recommend that the City Council pass the attached Bond Ordinance which will ensure that this bond issue can be sold expeditiously, thereby mitigating the negative impact of any rise in the bond rates that may be announced by the Federal Reserve Board in the future. The City's best financial interests are served by getting this bond issue to the market without delay. Page.2 of 2 STAFF REVIEW FORM X AGENDA REQUEST CONTRACT REVIEW GRANT REVIEW For the Fayetteville City Council FROM: of May 7, 2002 Ted Webber Admin Admin Name Division Department ACTION REQUIRED: An Ordinance authorizing the issuance and sale of up to $25 million of Sales and Use Tax capital Improvement Bonds for the Wastewater System Improvement Project. COST TO CITY: NA Cost of this Request Account Number Project Number BUDGET REVIEW Category/Project Budget Funds Used To Date Category/Project Name Program Name Remaining Balance Fund CONTRACT/GRANT/LEASE REVIEW: Budgeted Item _ Budget Adjustment Attached Administrative GRANTING AGENCY: Accounting Manager -)94t_e ADA Coordinator t- 32 L.t Date 310Y 'ty At rney i5�A gate In ernal itor d a3IdD- Date Purchasing Officer Date Grant Officer Date STAFF RECOMMENDATION: Division Head Date Cross Reference Date ayay Date New Item: Yes No Prev Ord/Res p: Orig Contract Date: STAFF REVIEW FORM Page 2 Description Comments: Budget Coordinator Accounting Manager City Attorney Purchasing Officer ADA Coordinator Internal Auditor Grants Offcier Meeting Date Reference Comments: Reference Comments: Reference Comments: Reference Comments: Reference Comments: Reference Comments: Reference Comments: Arkansas Democrat W (I5azette STATEMENT OF LEGAL ADVERTISING CITY OF FAYETTEVILLE 113 W MOUNTAIN/PERSONNEL FAYETTEVILLE AR 72701 ATTN: HEATHER DATE : 05/18/02 INVOICE #: 3122 ACCT #: L5004205 P.O. #: J 1Al L. VL flA S\r_& f.), COUNTY OF PULASKI, j ss. I, Elizabeth Myers do solemnly swear that I am the Legal Billing Clerk of the Arkansas Democrat - Gazette, a daily newspaper printed and published in said County, State of Arkansas; that I was so related to this publication at and during the publication of the annexed legal advertisement in the matter of: ORD 4389 pending in the Court, in said County, and at the dates of the several publications of said advertisement stated below, and that during said periods and at said dates, said newspaper was printed and had a bona fide circulation in said County; that said newspaper had been regularly printed and published in said County, and had a bona fide circulation therein for the period of one month before the date of the first publication of said advertisement; and that said advertisement was published in the regular daily issues of said newspaper as stated below. DATE DAY LINAGE RA'Z'E DATE DAY LINAGE RATE 05/18 Sat 559 1.00 TOTAL COST------------------------j,wi u,,,, 559.00 Billing Ad if: 7403379 Qom E.t. ' . n� :, PUB, IC ! . REMIT TO: ARKANSAS DEMOCRAT -GAZETTE, INC. P.O. BOX 2221 LITTLE ROCK, AR 72203 05-22-02 BILLING QUESTIONS CALL 378-3812 AD COPY. RECEIVED MAY 2 2 2002 CITY OF FAYETTEVILLE CITY CLERK'S OFFICE 0:28 RCVD moth rand Act-1to hsue and of and use tax around is provi- 7 of the I on Au - t areh Seas auth he Mr canter tax Section 2. In order to pay the re of principal of and interest on the Bonds h the as they mature or are called for (the redemption prior to maturity, there Is hereby pledged an of the receipts of ,lion the Sales and Use Tax levied by the tv of Election Ordinance. The levy end collection of the Sales and Use Tax City i the shall continue until such time as the merit Bonds are no longer outstanding or vy ct sufficient funds are on deposit with bdpeiI the Trudee underthe Tmst Indenture the to redeem the,Bonds In full The City . meet covenants and ogees 00 ail receipts from the Sales and Use Tax will be under i accounted for separately as special 3 an0 funds on the books of the Cittyy,end land - receipts of said Sales and UseTax will mtas� be deposited and wig be used solely in totem asxo'ded toTrst Indenture. sand I Section 3. To prescribe the tame ands, I and conditions upon which the Bdcds mount are to be executed, authenticated, 0 (the issued,accepfShSSsaCurad. or the the Maya is hereby authorized and deeded to execute andackmmvledge �ehd ... a Trust Indenture (the 'Trust as ed In the Bond Purchase ant The average yield on the as a whole shall not exceed )a eaten, and the yield on no bad shall exceed 4.00%. The is of the Bonds wB he uhf¢ed ore a podion of the ws d the a form authored to be executed is or file with the City Clerk and is available for inspection by any Interestec Section 4. There is'herebl authorized and approved h PrelMmary Official Statement of thi City. Including the cover page am al Statement is The Preliminary as amended to 1 order to"complete the Continuing r Disclosure Agreemed M substantially the form submitted it this meeting, with such changes as shall be py such Corinne executing CmWadig Disaoeae Agreanetht, their execution to constitute conclusive evdahce of such approval dAce Is given that a copy of the Continuing Disclosure Agreement in adsan0aly the lam authorized to be ezecuted's on file with the City Chat and is available for inspection by am interested peson.) Section inn order to secure lower end conditions, a0 as set forth In the r mu U 11111 o,e,o,.....„I Trust Indenture submitted at this Mayor Is hereby euthodied to ex- acute the Official Statement for and t! = - - --• , on behalf of the City. The Official 0>, n 8'c ov 0u at 20 ° 00 u y u � a ° c9O) o y n ° I- T O 0 cL O o Olrs o,. w u .00 o n c'_. T O C° C V n o V ,n L o y o`o V V o 0 n c o o a'a L o s E c c'2 C 3. o h . L V n O ° v ors C o o d� v, E L O � 6 L V V .00 2.2 ° V E� C 0 9 0 0 � C Q1 v c c 0 0 L C O 8 v2 $ 82 '' se0 rnv o � S I�y y L O .. .0 A 3 E o .2 a- �9 O .? PRELIMINARY OFFICIAL STATEMENT DATED JUNE 5, 2002 NEW ISSUE BOOK -ENTRY ONLY KUTAK ROCK LLP DRAFT 6/4/02 *RATING: S&P: "AA" In the opinion of Bond Counsel, under existing law and assuming compliance with certain covenants described herein, interest on the Series 2002 Bonds is excluded from gross income of the owners ttereoffor federal income tax purposes and is not an item of tax preference for purposes of the federal alternative minimum tax imposed on individuals and corporations; however, with respect to corporations, interest on the Series 2002 Bonds will be taken into account in determining adjusted current earnings and profits for purposes of computing the federal alternative minimum tax. Under existing law, Bond Counsel is of the opinion that the Series 2002 Bonds and the interest thereon are exempt front all state. county and municipal tares in the State of Arkansas. See the caption "TAX EXEMPTION herein. $25,000,000** CITY OF FAYETTEVILLE, ARKANSAS SALES AND USE TAX CAPITAL IMPROVEMENT BONDS SERIES 2002 Dated: June 1, 2002 Due: June 1, as shown below The Sales and Use Tax Capital Improvement Bonds, Series 2002 (the "Series 2002 Bonds"), are being issued by the City of Fayetteville, Arkansas (the "Cif/') for the purpose of financing a portion of the costs of certain improvements to the City's wastewater treatment plants, sewerage and related '' facilities, funding a debt service reserve, and paying certain expenses in connection with the issuance of the Series 2002 Bonds. See the captions "ESTIMATED SOURCES AND USES OF FUNDS" and "THE PROJECT' herein. The Series 2002 Bonds are issuable only as fully registered bonds and, when issued, will be registered in the name of Cede & Co., as nominee of The Depository Trust Company ("DTC"), New York, New York, to which principal, premium, if any, and interest payments on the Series 2002 Bonds will be made so long as Cede & Co. is the registered owner of the Series 2002 Bonds. Individual purchases of the Series 2002 Bonds will be made only in book -entry form, in denominations of $5,000 or integral multiples thereof. Individual purchasers ("Beneficial Owners") of Series 2002 Bonds will not receive physical delivery of bond certificates. See the caption "BOOK -ENTRY ONLY SYSTEM" herein. The Series 2002 Bonds shall bear interest from their dated date, payable on June I and December I of each year, commencing December I, 2002. All such interest payments shall be payable to the persons in whose name such Series 2002 Bonds are registered on the bond registration books maintained by Simmons First Trust Company, N.A., Pine Bluff, Arkansas as trustee (the "Trustee"), as of the fifteenth day of the calendar month preceding the calendar month in which the applicable interest payment date falls. Principal of and premium, if any, on the Series 2002 Bonds shall be payable at the principal corporate trust office of the Trustee. So long as DTC or its nominee is the registered owner of the Series 2002 Bonds, disbursement of such payments to DTC Participants is the responsibility of DTC, and the disbursement of such payments to Beneficial Owners is the responsibility of DTC Participants or Indirect Participants, as more fully described herein. Pursuant to a Trust Indenture dated as of June 1, 2002 (the "Indenture"), between the City and the Trustee, the payment of the principal of, premium, if any, and interest on the Series 2002 Bonds is secured by a pledge of the receipts from a three-quarters of one percent (0.75%) city-wide sales and use tax (the "Sales and Use Tax"). See the caption "SECURITY FOR THE BONDS" herein. Assuming the satisfaction of certain coverage tests, the City has reserved the right to incur up to $100,000,000 of additional indebtedness to be secured on a parity basis with the Series 2002 Bonds. See the caption "THE SERIES 2002 BONDS — Additional Bonds and RLF Loans" herein. The Series 2002 Bonds are subject to mandatory redemption prior to maturity as more fully described herein under the caption "THE SERIES 2002 BONDS - Redemption." — The Series 2002 Bonds are special obligations of the City secured by and payable solely from receipts of the Sales and Use Tax. The Series 2002 Bonds do not constitute an indebtedness of the City within the meaning of any constitutional or statutory debt limitation or restriction. The issuance of the Series 2002 Bonds shall not directly, indirectly or contingently obligate the City to levy or pledge any taxes whatsoever or to make any appropriation for the payment of the Series 2002 Bonds, except as described herein with respect to the Sales and Use Tax. MATURITY SCHEDULE** Maturity Principal Interest Maturity Principal Interest (June I Amount Rate (June 1 Amount Rate 2003 $6,590,000 - % 2006 $4,200,000 .2004 6,505,000- 2007 2,385,000 2005 5,320,000 , (All Series 2002 Bonds are offered at par plus accrued interest) The Series 2002 Bonds are offered when, as and if issued by the City and are subject to the final approving opinion of Kutak Rock LLP, Little Rock, Arkansas, Bond Counsel. Certain matters will be passed upon for the City by its counsel, Kit Williams, Esq., City Attorney. It is expected that the Series 2002 Bonds will be available for delivery in New York, New York, on or about June 20, 2002. • See the caption "RATING" herein. •• Preliminary; subject to change. Stephens Inc. The date of this Official Statement is June _, 2002. CITY OF FAYETTEVILLE, ARKANSAS Issuer City Council Dan Coody, Mayor Bob Davis Lioneld Jordan Don Man Robert Reynolds Kevin Santos Brenda Thiel Cyrus Young Ted Webber, Administrative Services Director Greg Boettcher, Public Works Director Stephen Davis, Budget Manager Heather Woodruff, City Clerk Kit Williams, City Attorney SIMMONS FIRST TRUST COMPANY, N.A. Pine Bluff, Arkansas Trustee and Paying Agent KUTAK ROCK LLP Little Rock, Arkansas Bond Counsel STEPHENSINC. Little Rock, Arkansas Underwriter No dealer, broker, salesman or other person has been authorized by the City or by Stephens Inc. (the "Underwriter") to give any information or to make any representations, other than those contained herein; and, if given or made, such other information or representations must not be relied upon as having been authorized by either of the foregoing. This Official Statement does not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of any Series 2002 Bonds in any jurisdiction in which such offer is not authorized, or in which the person making such offer, solicitation or sale is not qualified to do so, or to any person to whom it is unlawful to make such offer, solicitation or sale. The information and expressions of opinion contained herein are subject to change without notice, and neither the delivery of this Official Statement nor any sale made hereunder shall, under any circumstances, create any implication that there has been no change in the affairs of the City since the date hereof. THE SERIES 2002 BONDS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR HAS THE TRUST INDENTURE BEEN QUALIFIED UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, IN RELIANCE UPON CERTAIN EXEMPTIONS FROM SUCH REGISTRATION AND QUALIFICATION CONTAINED IN SUCH LAWS. CERTAIN INFORMATION CONTAINED HEREIN HAS BEEN OBTAINED FROM THE CITY, THE DEPOSITORY TRUST COMPANY AND OTHER SOURCES WHICH ARE BELIEVED TO BE RELIABLE. THE UNDERWRITER HAS REVIEWED THE INFORMATION IN THIS OFFICIAL STATEMENT IN ACCORDANCE WITH, AND AS PART OF, ITS RESPONSIBILITIES TO INVESTORS UNDER THE FEDERAL SECURITIES LAWS AS APPLIED TO THE FACTS AND CIRCUMSTANCES OF THIS TRANSACTION, BUT THE UNDERWRITER DOES NOT GUARANTY THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. IN CONNECTION WITH THIS OFFERING, THE UNDERWRITER MAY OVERALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SERIES 2002 BONDS AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME. TABLE OF CONTENTS Page IntroductoryStatement......................................................................................................................................... 1 TheSeries 2002 Bonds......................................................................................................................................... 2 Securityfor the Bonds.......................................................................................................................................... 4 Book -Entry Only System..................................................................................................................................... 4 TheProject........................................................................................................................................................... 6 Historical Sales and Use Tax Collections............................................................................................................. 7 Estimated Sources and Uses of Funds.................................................................................................................. 7 Estimated Debt Service Requirements................................................................................................................. 8 EstimatedDebt Service Coverage........................................................................................................................ 8 Projected Mandatory Redemptions...................................................................................................................... 9 The City ................................................................................................................................................................ 9 TheSales and Use Tax......................................................................................................................................... 19 Definitionsof Certain Terms................................................................................................................................ 18 Summaryof the Indenture............................................................................................:....................................... 22 Summary of the Continuing Disclosure Agreement............................................................................................. 26 Underwriting........................................................................................................................................................ 28 TaxExemption..................................................................................................................................................... 29 Rating.................................................................................................................................................................... 29 LegalMatters........................................................................................................................................................ 29 Miscellaneous....................................................................................................................................................... 30 Accuracy and Completeness of Official Statement.............................................................................................. 30 APPENDIX A - Form of Bond Counsel Opinion................................................................................................ A-1 PRELIMINARY OFFICIAL STATEMENT $25,000,000* CITY OF FAYETTEVILLE, ARKANSAS SALES AND USE TAX CAPITAL IMPROVEMENT BONDS SERIES 2002 INTRODUCTORY STATEMENT The following introductory statement is subject in all respects to the more complete information set forth in this Official Statement. All descriptions and summaries of documents hereinafter set forth are qualified in their entirety by reference to each such document. Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms under the caption "DEFINITIONS OF CERTAIN TERMS" herein. This Official Statement, including the cover page and the Appendices hereto, is furnished in connection with the offering of Sales and Use Tax Capital Improvement Bonds, Series 2002, in the principal amount of $25,000,000• (the "Series 2002 Bonds"), by the City of Fayetteville, Arkansas (the "City"). The City is a city of the first class organized and existing under the laws of the State of Arkansas (the "State"). The City is authorized under Amendment 62 to the Constitution of the State ("Amendment 62") and Arkansas Code Annotated (1998 Repl. & 2001 Supp.) §§14-164-301 et seq. (as from time to time amended, the "Act"), to issue and sell bonds for the purpose of financing and refinancing the cost of capital improvements of a public nature. The Series 2002 Bonds are to be issued by the City pursuant to Amendment 62, the Act and Ordinance No. 4389, adopted and approved on May 7, 2002 (the "Authorizing Ordinance"), for the purpose of (i) financing a portion of the costs of acquiring, constructing, reconstructing, extending, improving and equipping the City's wastewater treatment plants, sewerage and related facilities (the "Project"), (ii) establishing a debt service reserve for the Series 2002 Bonds, and (iii) paying the costs of issuing the Series 2002 Bonds. See the captions "ESTIMATED SOURCES AND USES OF FUNDS" and `THE PROJECT" herein. The Series 2002 Bonds are not general obligations of the City, but are special obligations payable solely from and secured by a pledge of the receipts of a special city-wide sales and use tax levied pursuant to the Act at the rate of three-quarters of one percent (0.75%) (the "Sales and Use Tax"). See the captions "SECURITY FOR THE BONDS," "HISTORICAL SALES AND USE TAX COLLECTIONS" and "SUMMARY OF THE INDENTURE" herein. The faith and credit of the City are not pledged to the payment of the Series 2002 Bonds, and the Series 2002 Bonds do not constitute an indebtedness of the City within the meaning of any constitutional or statutory debt limitation or restriction. The issuance of the Series 2002 Bonds shall not directly, indirectly or contingently obligate the City to levy or pledge any taxes whatsoever or to make any appropriation for the payment of the Series 2002 Bonds, except as described herein with respect to the Sales and Use Tax. Additional Bonds may be issued on a parity of security with the Series 2002 Bonds under certain circumstances set forth in the Indenture (hereinafter defined). The Series 2002 Bonds and any Additional Bonds are herein collectively referred to as the "Bonds." In addition, the City may incur loans under the Arkansas Soil and Water Conservation Commission Revolving Loan Fund Program ("RLF Loans"), which RLF Loans will be secured on a parity basis with the Bonds, except that RLF Loans will not be secured by the Debt Service Reserve Fund. Pursuant to the Indenture, the maximum principal amount of Bonds and RLF Loans that may be issued or incurred is limited to $125,000,000. See the caption "THE SERIES 2002 BONDS - Additional Bonds and RLF Loans" herein. The Series 2002 Bonds are subject to redemption from excess moneys in the Project Fund following completion of the Project and from Surplus Tax Receipts. See the captions "THE SERIES 2002 BONDS - Redemption" and "PROJECTED MANDATORY REDEMPTIONS." Preliminary; subject to change. Pursuant to the provisions of a Continuing Disclosure Agreement dated as of the date of delivery of the Series 2002 Bonds, by and between the City and the Trustee (the "Continuing Disclosure Agreement"), the City has undertaken certain obligations with respect to providing ongoing disclosure of certain financial and operating data concerning the City and the Sales and Use Tax and of the occurrence of certain material events. See the caption "SUMMARY OF THE CONTINUING DISCLOSURE AGREEMENT" herein. This Official Statement contains brief descriptions or summaries of, among other matters, the City, the Series 2002 Bonds, the Sales and Use Tax, the Continuing Disclosure Agreement, and the Trust Indenture dated as of June 1, 2002, (the "Indenture"), by and between the City and Simmons First Trust Company, N.A., Pine Bluff, Arkansas, as trustee (the "Trustee"), pursuant to which the Series 2002 Bonds are issued and secured. Such descriptions and information do not purport to be comprehensive or definitive. All references herein to the Indenture and the Continuing Disclosure Agreement are qualified in their entirety by reference to each such documents, and all references to the Series 2002 Bonds are qualified in their entirety by reference to the definitive form thereof and the information with respect thereto included in the Indenture. Copies of the Continuing Disclosure Agreement, the Indenture, and the form of Series 2002 Bond included therein, are available from the City by writing to the attention of the Administrative Services Director, City of Fayetteville, City Administration Building, 113 West Mountain, Fayetteville, Arkansas 72701 and, during the initial offering period only, from the Underwriter, Stephens Inc., 3425 North Futrall, Suite 201, Fayetteville, Arkansas 72703. Certain financial and operating data has been provided by the City from the audited records of the City and certain demographic information has been obtained from other sources which are believed to be reliable. THE SERIES 2002 BONDS Description. The Series 2002 Bonds will be initially dated as of June 1, 2002, and will bear interest payable semiannually on June 1 and December 1 of each year, commencing December 1, 2002, at the rates set forth on the cover page hereof. The Series 2002 Bonds will mature on June 1 in the years and in the principal amounts set forth on the cover page hereof. The Series 2002 Bonds are issuable only in the form of fully registered bonds and, when issued, will be registered in the name of Cede & Co., as nominee of The Depository Trust Company ("DTC"), New York, New York, to which principal, premium, if any, and interest payments on the Series 2002 Bonds will be made so long as Cede & Co. is the registered owner of the Series 2002 Bonds. Individual purchases of the Series 2002 Bonds will be made only in book -entry form, in denominations of $5,000 or integral multiples thereof. Individual purchasers ("Beneficial Owners") of Series 2002 Bonds will not receive physical delivery of bond certificates. See the caption "BOOK -ENTRY ONLY SYSTEM" herein. All interest payments on the Series 2002 Bonds shall be payable to the persons in whose name such Series 2002 Bonds are registered on the bond registration books maintained by the Trustee, as of the fifteenth day of the calendar month preceding the calendar month in which the applicable interest payment date falls. Principal of and premium, if any, on the Series 2002 Bonds shall be payable at the principal corporate trust office of the Trustee. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Series 2002 Bond to the extent of the sum or sums so paid. So long as DTC or its nominee is the registered owner of the Series 2002 Bonds, disbursement of such payments to DTC Participants is the responsibility of DTC, and the disbursement of such payments to Beneficial Owners is the responsibility of DTC Participants or Indirect Participants, as more fully described herein. Redemption. The Series 2002 Bonds are subject to redemption prior to maturity as follows: (a) The Series 2002 Bonds shall be redeemed prior to maturity, in whole or in part, on any interest payment date, in inverse order of maturity and by lot in such manner as the Trustee shall determine within a maturity, at a redemption price equal to 100% of the principal amount being redeemed, plus accrued interest to the date of redemption, from Project Fund moneys in excess of the amount needed to complete the Project. (b) The Series 2002 Bonds shall be redeemed prior to maturity, in whole or in part, on any interest payment date, in inverse order of maturity and by lot in such manner as the Trustee shall determine within a maturity, at a redemption price equal to 100% of the principal amount being redeemed, plus accrued interest to the date of redemption, from Surplus Tax Receipts. "Surplus Tax Receipts" are collections of the Sales and Use Tax in excess of the amount necessary to (i) insure the prompt payment of the principal of and interest on Outstanding Bonds and any RLF Loan, (ii) maintain the Debt Service Reserve Fund in an amount equal to the Reserve Requirement, (iii) pay any arbitrage rebate due under Section 148(f) of the Internal Revenue Code of 1986, as amended (the "Code"), and (iv) pay Trustee and Paying Agent fees and expenses. So long as the Series 2002 Bonds are Outstanding, all Surplus Tax Receipts shall be applied to the redemption of the Series 2002 Bonds prior to maturity. See the caption "PROJECTED MANDATORY REDEMPTIONS" herein. Partial Redemption of a Series 2002 Bond. If less than all of the Series 2002 Bonds of a maturity are called for redemption, the particular Series 2002 Bonds or portions of Series 2002 Bonds to be redeemed shall be selected by lot in such manner as the Trustee in its discretion may deem fair and appropriate. So long as DTC or its nominee is the sole registered owner of the Series 2002 Bonds, the procedures established by DTC shall control with respect to the selection of the particular Series 2002 Bonds to be redeemed. Notice of Redemption. Notice of the call for any redemption, identifying the Series 2002 Bonds or portions thereof being called and the date on which they shall be presented for payment, shall be mailed by the Trustee by first class mail (or, so long as DTC or its nominee is the sole registered owner of the Series 2002 Bonds, by any other means acceptable to DTC, including facsimile) to the registered owner of each such Series 2002 Bond addressed to such registered owner at his registered address and placed in the mails not less than thirty (30) nor more than sixty (60) days prior to the date fixed for redemption; provided, however, that failure to give such notice by mailing, or any defect therein, shall not affect the validity of any proceeding for the redemption of any Series 2002 Bond with respect to which no such failure or defect has occurred. Any notice mailed as provided above shall be conclusively presumed to have been duly given, whether or not the registered owner receives the notice. Additional Bonds and RLF Loans. The City may issue from time to time one or more series of Additional Bonds for the purpose of (i) financing Project Costs in connection with the completion of the Project, (ii) refunding the Series 2002 Bonds or any series of Additional Bonds or any RLF Loan, in whole or in part, or (iii) any combination thereof. Additional Bonds shall be secured equally and ratably with the Series 2002 Bonds and any other series of Additional Bonds theretofore issued or any RLF Loan theretofore incurred and then Outstanding, except insofar as any terms or conditions of redemption or purchase established under the Indenture may afford additional benefit or security for the Bonds of any particular series and except for the security afforded by any municipal bond insurance obtained with respect to any particular series of Bonds; provided, however, that RLF Loans structured as Additional Bonds shall not be secured by the Debt Service Reserve Fund. Before any Additional Bonds are authenticated, there shall be delivered to the Trustee the items required for the issuance of Bonds by the Indenture, plus a Certificate of the Administrative Services Director of the City certifying that, based upon necessary investigation, the Sales and Use Tax receipts transferred to the Trustee during the most recent twelve (12) months were not less than (i) 125% of the maximum Annual Debt Service on all then Outstanding Bonds and any RLF Loan, plus the Additional Bonds then proposed to be issued, and (ii) the amount, if any, needed to make required deposits to the Debt Service Reserve Fund. Prior to any drawdown on an RLF Loan, there shall be delivered to the Trustee a Certificate of the Administrative Services Director of the City certifying that, based upon necessary investigation, the Sales and Use Tax receipts transferred to the Trustee during the most recent twelve (12) months were not less than 125% of the maximum Annual Debt Service on all the Outstanding Bonds and any RLF Loan theretofore incurred, plus the maximum Annual Debt Service on the amount of the additional RLF Loan to be incurred. No Additional Bonds shall be issued and no RLF Loan shall be incurred unless there is no default at the time of issuance under the Indenture. It is the City's present intention to obtain an RLF Loan in the approximate amount of $100 million in order to obtain the additional funds needed to complete the acquisition, construction and equipping of the Project. It is anticipated that the RLF Loan will be entered into in the fourth quarter of 2002 and funds will be drawn down over a period of 24-36 months, beginning December, 2003. The RLF Loan may, but need not, be structured in the form of an Additional Bond or Bonds. if the proceeds of the Series 2002 Bonds and the amounts available under an RLF Loan are insufficient to complete the funding of the Project, the City may issue Additional Bonds to the extent needed. Pursuant to the Indenture, the maximum principal amount of Bonds and RLF Loans that may be issued or incurred is limited to $125,000,000. Transfer or Exchange. The Bonds may be transferred on the books of registration kept by the Trustee by the registered owner in person or by the owner's duly authorized attorney, upon surrender thereof, together with a written instrument of transfer duly executed by the registered owner or the owner's duly authorized attorney. Upon surrender for transfer of any Bond at the principal corporate office of the Trustee, the City shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Bond or Bonds of the same series and in the same aggregate principal amount and of any authorized denomination or denominations. Transfers of registration or exchanges of Bonds shall be without charge to the Holders of such Bonds, but any taxes or other governmental charges required to be paid with respect to the same shall be paid by the Holder of the Bond requesting such transfer or exchange as a condition precedent to the exercise of such privilege. The Trustee shall not be required to transfer or exchange any Bond during the period from and including a Record Date to the next succeeding interest payment date of such Bond nor to transfer or exchange any Bond after the mailing of notice calling such Bond for redemption has been made, and prior to such redemption. So long as DTC or its nominee is the sole registered owner of the Series 2002 Bonds, transfers of beneficial interests in the Series 2002 Bonds shall be in accordance with the rules and procedures of DTC and its direct and indirect participants. See the caption "BOOK -ENTRY ONLY SYSTEM" herein. SECURITY FOR THE BONDS General. The Bonds are special obligations of the City secured by and payable from the receipts of a three- quarters of one percent (0.75%) city-wide sales and use tax (the "Sales and Use Tax"). The Sales and Use Tax was levied under Ordinance No. 4327, duly adopted by the City Council of the City on August 7, 2001 (the "Election Ordinance"). Pursuant to the Election Ordinance, a special election was held on November 6, 2001, at which time the qualified electors of the City approved the issuance of capital improvement bonds in principal amount not to exceed $125,000,000 and the corresponding levy of the Sales and Use Tax. The receipts of the Sales and Use Tax were pledged to secure the payment of Debt Service on the Series 2002 Bonds pursuant to Ordinance No. 4389, duly adopted by the City Council of the City on May 7, 2002 (the "Authorizing Ordinance"). The collection of the Sales and Use Tax commenced April 1, 2002. See the captions "THE SALES AND USE TAX" and "HISTORICAL SALES AND USE TAX COLLECTIONS" herein. The Bonds do not constitute an indebtedness of the City within the meaning of any constitutional or statutory debt limitation or restriction. The issuance of the Bonds shall not directly, indirectly or contingently obligate the City to levy or pledge any taxes whatsoever or to make any appropriation for the payment of the Bonds, except as described herein with respect to the Sales and Use Tax. Debt Service Reserve. From the proceeds of sale of each series of Bonds issued pursuant to the Indenture, there shall be deposited into the Debt Service Reserve Fund an amount which, together with the amounts then on deposit therein, will be equal to 5% of the aggregate principal amount on all Outstanding Bonds (the "Reserve Requirement"); provided, however, that no proceeds of RLF Loans will be deposited in the Debt Service Reserve Fund and the Debt Service Reserve Fund will not secure RLF Loans structured as Additional Bonds. The Debt Service Reserve Fund shall be used solely to pay the principal of and interest on Outstanding Bonds (not including RLF Loans) as due for which there are no available funds in the Bond Fund to make such payments. If the amount in the Debt Service Reserve Fund is ever reduced below the Reserve Requirement, it shall be reimbursed to an amount equal to the Reserve Requirement through monthly payments, beginning not later than the last day of the month in which the Debt Service Reserve Fund was reduced below the Reserve Requirement, and continuing not later than the last day of each month thereafter until such reimbursement shall have been accomplished, from any funds in the Revenue Fund (after making the required deposits into the Interest Account and Principal Account of the Bond Fund and after providing for the payment of monthly principal and interest payments on RLF Loans, as provided in the Indenture). If a surplus shall exist in the Debt Service Reserve Fund over and above the Reserve Requirement, such surplus shall be deposited into the Interest Account of the Bond Fund. The moneys on deposit in the Debt Service Reserve Fund may be used, together with other available funds, to provide for the payment at maturity or to redeem prior to maturity all, but not less than all, of the Outstanding — Bonds (not including RLF Loans). BOOK -ENTRY ONLY SYSTEM The Series 2002 Bonds will be issued only as one fully registered Series 2002 Bond for each maturity in the name of Cede & Co., as nominee for The Depository Trust Company, New York, New York ("DTC"), as registered owner of all the Series 2002 Bonds. The fully registered Series 2002 Bonds will be retained and immobilized in the custody of DTC. DTC (or any successor securities depository) or its nominee for all purposes under the Indenture will be considered by the City and the Trustee to be the owner or Holder of the Series 2002 Bonds. Owners of any book entry interests in the Series 2002 Bonds (the "book entry interest owners") described below, will not receive or have the right to receive physical delivery of the Series 2002 Bonds, and will not be considered by the City and the Trustee to be, and will not have any rights as, owners or Holders of the Series 2002 Bonds under the bond proceedings and the Indenture except to the extent, if any, expressly provided thereunder. CERTAIN INFORMATION REGARDING DTC AND DIRECT PARTICIPANTS IS SET FORTH BELOW. THIS INFORMATION HAS BEEN PROVIDED BY DTC. THE CITY, THE UNDERWRITER AND BOND COUNSEL ASSUME NO RESPONSIBILITY FOR THE ACCURACY OF SUCH STATEMENTS. DTC is a limited -purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniforrn Commercial Code, and a "clearing agency" registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds securities that its participants ("Direct Participants") deposit with DTC. DTC also facilitates the settlement among Direct Participants of securities transactions, such as transfers and pledges, in deposited securities through electronic computerized book -entry changes in Direct Participants' accounts, thereby eliminating the need for physical movement of securities certificates. Direct Participants include securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is owned by a number of its Direct Participants and by the New York Stock Exchange, Inc., the American Stock Exchange LLC, and the National Association of Securities Dealers, Inc. Access to the DTC system is also available to others such as securities brokers and dealers, banks, and trust companies that clear through or maintain a custodial relationship with a Direct Participant, either directly or indirectly ("Indirect Participants"). The Rules applicable to DTC and its Direct and Indirect Participants are on file with the Securities and Exchange Commission. Purchases of Series 2002 Bonds under the DTC system must be made by or through Direct Participants, which will receive a credit for the Series 2002 Bonds on DTC's records. The ownership interest of each actual purchaser of each Series 2002 Bond ("Beneficial Owner") is in turn to be recorded on the Direct and Indirect Participants' records. Beneficial Owners will not receive written confirmation from DTC of their purchase, but Beneficial Owners are expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into the transaction. Transfers of ownership interests in the Series 2002 Bonds are to be accomplished by entries made on the books of Direct and Indirect Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests in Series 2002 Bonds, except in the event that use of the Book -Entry System for the Series 2002 Bonds is discontinued. To facilitate subsequent transfers, all Series 2002 Bonds deposited by Direct Participants with DTC are registered in the name of DTC's partnership nominee, Cede & Co. or such other name as may be requested by an authorized representative of DTC. The deposit of Series 2002 Bonds with DTC and their registration in the name of Cede & Co. or such other nominee do not effect any change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the Series 2002 Bonds, DTC's records reflect only the identity of the Direct Participants to whose accounts such Series 2002 Bonds are credited, which may or may not be the Beneficial Owners. The Direct and Indirect Participants will remain responsible for keeping account of their holdings on behalf of their customers. Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time. Neither DTC nor Cede & Co. (nor such other DTC nominee) will consent or vote with respect to the Series 2002 Bonds. Under its usual procedures, DTC will mail an Omnibus Proxy to the City as soon as possible after the Record Date. The Omnibus Proxy will assign Cede & Co.'s consenting or voting rights to those Direct Participants to whose accounts the Series 2002 Bonds are credited on the Record Date (identified in a listing attached to the Omnibus Proxy). Payment of Debt Service on the Series 2002 Bonds will be made to Cede & Co., or such other nominee as may be required by an authorized representative of DTC. DTC's practice is to credit Direct Participants' accounts, upon DTC's receipt of funds and corresponding detail information from the City or the Trustee on payable date in accordance with their respective holdings shown on DTC's records. Payments by Participants to Beneficial Owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in "street name," and will be the responsibility of such Participant and not of DTC, the Trustee or the City, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of Debt Service to Cede & Co. (or such other nominee as may be requested by an authorized representative of DTC) is the responsibility of the City or the Trustee, disbursement of such payments to Direct Participants shall be the responsibility of DTC, and disbursement of such payments to the Beneficial Owners shall be the responsibility of Direct and Indirect Participants: BENEFICIAL OWNERS SHOULD CONSULT WITH THE DIRECT PARTICIPANTS OR INDIRECT PARTICIPANTS FROM WHOM THEY PURCHASE A BOOK ENTRY INTEREST TO OBTAIN INFORMATION CONCERNING THE BOOK -ENTRY SYSTEM MAINTAINED BY SUCH DIRECT PARTICIPANTS OR INDIRECT PARTICIPANTS TO RECORD SUCH INTERESTS, TO MAKE PAYMENTS, TO FORWARD NOTICES OF REDEMPTION AND OF OTHER INFORMATION. THE CITY AND THE TRUSTEE HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY ASPECTS OF THE RECORDS OR NOTICES RELATING TO, OR PAYMENTS MADE ON ACCOUNT OF, BOOK ENTRY INTEREST OWNERSHIP, OR FOR MAINTAINING, SUPERVISING OR REVIEWING ANY RECORDS RELATING TO THAT OWNERSHIP. The Trustee and the City, so long as a book entry method of recording and transferring interest in the Series 2002 Bonds is used, will send any notice of redemption or of any Indenture amendment or supplement or other notices to Bondholders under the Indenture only to DTC (or any successor securities depository) or its nominee. Any failure of DTC to advise any Direct Participants, or of any Direct Participants or Indirect Participants to notify any Beneficial Owner, of any such notice and its content or effect will not affect the validity of the redemption of the Series 2002 Bonds called for redemption, the Indenture amendment or supplement, or any other action premised on notice given under the Indenture. The City and the Trustee cannot and do not give any assurances that DTC, Direct Participants, Indirect Participants or others will distribute payments of Debt Service on the Series 2002 Bonds made to DTC or its nominee as the registered owner of the Series 2002 Bonds, or any redemption or other notices, to the Beneficial Owners, or that they will do so on a timely basis, or that DTC will serve and act in a manner described in this Official Statement. DTC may discontinue providing its services as securities depository with respect to the Series 2002 Bonds at any time by giving reasonable notice to the City or the Trustee. Under such circumstances, in the event that a successor securities depository is not obtained, bond certificates are required to be printed and delivered. In addition, the City may decide to discontinue use of the system of book -entry transfers through DTC (or a successor securities depository). In that event, bond certificates will be printed and delivered. DTC advises that the current "Rules" applicable to DTC are on file with the Securities and Exchange Commission, and the current "Procedures" of DTC to be followed in dealing with DTC Participants are on file with DTC. THE PROJECT Existing Wastewater System. The City presently operates and maintains a municipal wastewater system, including administrative services, a collection system, pumping stations and a wastewater treatment plant. The existing wastewater system includes an estimated 430 miles of pipelines, a 12.6 million gallon per day advanced wastewater treatment plant and 33 wastewater pumping stations. These facilities serve an estimated population equivalent of 75,000 and transport an average daily flow in excess of 12 million gallons. Growth of the service area population has consumed the available wastewater system capacity and has justified the construction of core system improvements. A comprehensive facility plan has been developed which identifies a number of wastewater system components that must be upgraded, expanded or replaced in order to meet the service area needs for a projected 20 -year design period. In addition to the provision of needed infrastructure capacity, the proposed improvements address ancillary issues of bypassing, odor control, residuals management and operational economies. A study of numerous alternatives and scenarios found the selected scope of the Project to represent the most cost-effective strategy based upon a combination of construction costs and the present worth of long-term operating costs. Proposed Project Improvements. The scope of the Project includes the construction of additional interceptor sewer lines, force mains and pumping stations, existing treatment plant renovations, the construction of a new wastewater treatment plant with a capacity of 10 million gallons per day, and related wastewater improvements. The current wastewater system is configured to pump all of the City's wastewater flow to a single treatment plant on the eastern side of the City, with a portion of the treated wastewater flow being pumped back to the western side of the City. Completion of the Project will eliminate this duplicate pumping between watersheds by construction of a new west side treatment plant. More than 30 miles of new pipelines ranging in size from 8 -inch to 48 -inch in diameter will be constructed as part of the Project. A revised collection system will eliminate the need for six existing lift stations, and nine existing lift stations will be upgraded. The construction of the new west side plant, coupled with the upgrade of the existing east side treatment plant (revised capacity of 11.8 million gallons per day is reduced as a result of improved odor control and processing), will increase total wastewater treatment capacity from 12.6 to 21.8 million gallons per day and will satisfy projected 20 -year needs. The total cost of the Project is expected to be approximately $120 million. This cost estimate has been developed by the various design firms and includes allowances for inflation. Within the $120 million Project budget are cost allowances for professional services, right-of-way purchase, construction contracts, start-up services, performance evaluation services and a contract contingency. The preliminary Project schedule anticipates commencement of construction in the fourth quarter of 2003 and completion late in 2005. The Project is expected to be financed by a combination of Bonds and RLF Loans, the debt service on each to be paid from Sales and Use Tax receipts. The issuance of Bonds and the incurrence of RLF Loans in aggregate principal amount not to exceed $125 million, and the pledge of Sales and Use Tax receipts to pay the debt service thereon, has been approved by the voters of the City. In the event proceeds of Bonds and RLF Loans are insufficient to provide for the costs of the Project in full, the deficiency is expected to be funded with System revenues or/ indebtedness secured by System revenues. ✓ HISTORICAL SALES AND USE TAX COLLECTIONS Collection of the Sales and Use Tax commenced April 1, 2002. Set forth below is a table showing receipts of the City's 1% general city-wide sales and use tax for the last five years and for the twelve-month period from April 1, 2001 to March 31, 2002. The table also shows the growth percentage of historical receipts and what historical receipts of the general city-wide sales and use tax would have been had the rate been three-quarters of one percent (0.75%). Historical Collections Projected Collections Year (1.00%) Growth Percentage (0.75%) 1997 $ 9,601,424 n/a $7,201,068 1998 10,445,093 8.75% 7,833,820 1999 10,985,041 5.17% 8,238,781 2000 11,580,857 5.42% 8,685,643 2001 11,935,870 3.07% 8,951,902 2002tt1 12,189,524 n/a 9,142,143 For the twelve-month period from April 1, 2001 to March 31, 2002. ESTIMATED SOURCES AND USES OF FUNDS The proceeds of the Series 2002 Bonds are expected to be used as follows: Sources of Fundsttl Series 2002 Bond Proceeds $25,000,000 Total Sources: $2 4�QQ 4Q0 Uses of Fundsltl Deposit to Project Fund $23,507,680 Debt Service Reserve Fund Deposit 1,250,000. Costs of Issuance and Underwriter's Discount 242,320. Total Uses: $25 Preliminary; subject to change ESTIMATED DEBT SERVICE REQUIREMENTS As of the date of closing, the Series 2002 Bonds will constitute the only debt obligations secured by receipts of the Sales and Use Tax. The following table sets forth estimates of the amounts required to pay scheduled principal of and interest on the Series 2002 Bonds during each year: Series 2002 Series 2002 Total Debt Year Principal Interest)[) Service 2002 $ . - $ 340,293 $ 340,293 2003 6,590,000- 614,685 7,204,685 2004 6,505,000r 467,472 6,972,472 2005 5,320,000' 306,360 5,626,360 2006 4,200,000- 156,210 4,356,210 2007 2.385.000 ' 42.930 2.427,930 Totals: 25.000.000 $ 2L �Z454 $26.927.950 Preliminary; subject to change. Assuming for purposes of this Preliminary Official State, an average coupon rate on the Series 2002 Bonds of 2.999% per annum. ESTIMATED DEBT SERVICE COVERAGE The following table shows estimated maximum and average annual debt service coverage with respect to the Series 2002 Bonds utilizing historical sales and use tax receipts from April 1, 2001, to March 31, 2002. Historical Sales and Use Tax Receipts[') $9,142,143 Maximum Annual Debt Service Requirement on Series 2002 Bonds(2) $7,204,685 Average Annual Debt Service Requirement on Series 2002 Bonds(2) $5,317,531 Maximum Annual Debt Service Coverage 1.27X Average Annual Debt Service Coverage 1.72X lt) Based on 75% of the historical collections of the 1% general city-wide sales and use tax for the twelve-month period from April I, 2001 to March 31, 2002. See the caption "HISTORICAL SALES AND USE TAX COLLECTIONS" herein. (2) Preliminary; subject to change. Calculated for the years 2003-2007. See the caption "ESTIMATED DEBT SERVICE REQUIREMENTS" herein. THE COVERAGE NUMBERS SET FORTH ABOVE ARE BASED ON HISTORICAL SALES AND USE TAX RECEIPTS. ACTUAL RECEIPTS OF THE SALES AND USE TAX WILL DEPEND ON NUMEROUS FACTORS, AND THERE CAN BE NO ASSURANCE THAT FUTURE SALES AND USE TAX RECEIPTS AVAILABLE TO PAY DEBT SERVICE ON THE SERIES 2002 BONDS WILL APPROXIMATE SUCH HISTORICAL RESULTS. PROJECTED MANDATORY REDEMPTIONS . The table under the caption "ESTIMATED DEBT SERVICE REQUIREMENTS" does not reflect possible mandatory redemptions of the Series 2002 Bonds from Surplus Tax Receipts, if available. Surplus Tax Receipts are all receipts of the Sales and Use Tax in excess of the amount necessary (i) to assure the prompt payment of the principal of and interest on Outstanding Bonds and any RLF Loan, (ii) to maintain the Debt Service Reserve Fund in an amount equal to the Reserve Requirement, (iii) to pay any arbitrage rebate due under Section 148(fj of the Code, and (iv) to pay Trustee and Paying Agent fees and expenses. So long as any of the Series 2002 Bonds are Outstanding, Surplus Tax Receipts are required to be used to redeem Series 2002 Bonds prior to maturity. THERE CAN BE NO ASSURANCE GIVEN THAT SALES AND USE TAX RECEIPTS WILL BE REALIZED IN THE AMOUNTS ASSUMED IN THE TABLE ABOVE. See the caption "THE SALES AND USE TAX — Future Sales and Use Tax Receipts" herein. IN ADDITION, THERE CAN BE NO ASSURANCE GIVEN AS TO THE PRECISE AMOUNT AND TIMING OF DEBT SERVICE PAYMENTS ON ANY RLF LOAN OR EARNINGS ON THE DEBT SERVICE RESERVE FUND. Year Ending Series 2002 Bonds Redeemed Total Series 2002 Bond June 1(tl Principal Due Prior to Maturity(�1 Principal Retired 2003 $6,590,000 $1,860,000 r $8,450,000 2004 6,505,000- 1,925,000 ' 8,430,000 2005 5,320,000 - 2,800,000 , 8,120,000 (1) Series 2002 Bonds are subject to mandatory redemption from Surplus Tax Receipts on each June I and December I. See the caption "THE SERIES 2002 BONDS — Redemption" herein. (2) Assuming Sales and Use Tax receipts of $9,142,143 for the twelve months ending June I, 2003, 2004 and 2005, scheduled debt service on an RLF Loan of $-0- for the twelve months ending June 1, 2003, $219,178 for the twelve months ending June 1, 2004, and $1,561,301 for the twelve months ending June 1, 2005, earnings on the Debt Service Reserve Fund at a rate of 3.10% and use of the entire amount in the Debt Service Reserve Fund ($1,250,000) to redeem Series 2002 Bonds on June 1, 2005. THE CITY General. The City is a city of the first class organized and existing under the laws of the State of Arkansas. The City is the seat of government of Washington County (the "County") and is the sixth largest city in the State. The City is located in the Metropolitan Statistical Area of Fayetteville/Springdale/Rogers (the "MSA"), which includes all of Washington and Benton Counties in the northwest comer of the State and is approximately 185 miles northwest of Little Rock, Arkansas, 125 miles east of Tulsa, Oklahoma, and 210 miles south of Kansas City, Missouri. The City is served by U.S. Interstate 540, U.S. Highways 62 and 71, and State Highways 16, 45, 112, 156, 180 and 265. The Burlington Northern Railroad has several lines running through the City, and a municipal airport with a 6,006 -foot runway is available for limited commuter travel. The Northwest Arkansas Regional Airport is located approximately 40 minutes from downtown Fayetteville and provides daily flights to numerous venues. Government. The City currently operates under the Mayor -Council form of government pursuant to which a mayor, city attorney, city clerk and eight aldermen are elected, two from each of the City's four wards. The mayor, city attorney and city clerk are full-time positions elected to four year terms. Aldermen also serve four year terms. There is currently one vacant alderman position. The City's elected officials and the dates on which their respective terms expire are as follows: Name Office Term Expires Dan Coody Mayor 12/31/04 Kit Williams City Attorney 12/31/02 Heather Woodruff City Clerk 12/31/04 Bob Davis Alderman 12/31/04 Lioneld Jordan Alderman 12/31/04 Don Marr Alderman 12/31/04 Robert Reynolds Alderman 12/31/02 Kevin Santos Alderman 12/31/02 Brenda Thiel Alderman 12/31/04 Cyrus Young Alderman 12/31/02 Population. The following is a table of population changes for the City, the MSA and the State of Arkansas, according to the United States Census Bureau: City of State of Year Fayetteville MSA Arkansas 1960 20,274 92,069 1,786,272 1970 30,729 127,846 1,923,322 1980 36,608 178,609 2,286,435 1990 42,099 210,908 2,350,624 2000 58,047 311,121 2,673,400 Economic Data. Per capita personal income figures for the MSA and the State of Arkansas are as follows: State of Year MSA Arkansas 1992 $18,260 $16,425 1993 18,765 16,995 1994 19,590 17,750 1995 20,193 18,546 1996 20,870 19,442 1997 21,586 20,228 1998 22,893 21,256 1999 24,213 22,223 Source: Bureau of Economic Analysis. Retail sales figures for the MSA and the State are as follows: MSA State of MSA as % of Year Arkansas State of Arkansas 1993 $1,880,105,000 $16,997,721,000 11.06% 1994 2,217,229,000 19,090,516,000 11.61 1995 2,486,425,000 20,998,923,000 11.84 1996 2,692,554,000 22,053,022,000 12.21 1997 2,845,968,000 22,872,236,000 12.44 1998 3,018,896,000 23,944,647,000 12.61 1999 n/a n/a n/a 2000 3,526,791,000 28,488,033,000 12.38 2001 3,806,422,000 29,652,693,000 12.84 Methodology changed to calendar year basis. No reliable information is available for 1999. Source: Sales and Marketing Management Survey of Buyer Power. 10 The following table shows the total assessed value of non -utility real and personal property within the City for the years indicated: Year Real Property Personal Property Total 1994 $245,093,513 $ 86,322,277 $331,415,790 1995 340,593,452 101,274,620 441,868,072 1996 359,369,202 113,157,365 472,526,567 1997 382,798,143 120,064,627 502,862,770 1998 401,001,338 127,575,096 528,576,434 1999 413,648,415 137,404,499 551,052,914 2000 432,951,171 145,147,891 578,099,062 2001 486,853,822 155,794,579 642,648,401 Source: Washington County Tax Assessor's Office. The assessed value represents 20% of the appraised value of property. Building permits issued by the City' 1 are shown below for the years indicated: 1997 1998 1999 2000 2001 Residential Building 326 304 451 361 339 Permits Commercial Building 39 41 59 27 38 Permits Value of All Building Permits $59,288,194 $51,948,911 $100,744,816 $121,887,263 $85,262,302 tt1 Does not include building activity of the University of Arkansas, school permits and additions/alterations to existing structures. Source: City of Fayetteville. Unemployment figures for the MSA and the State of Arkansas, according to the U.S. Bureau of Labor Statistics, are as follows: Year MSA . State of Arkansas 1994 2.4% 5.3% 1995 2.4 4.9 1996 2.9 5.4 1997 3.0 5.3 1998 3.2 5.5 1999 2.4 4.5 2000 2.1 4.4 2001 1.7 5.1 2002' 2.6 5.9 * February only. Employment and Industry. The principal campus of the University of Arkansas is located in the City and had total enrollment for the Spring semester of 2002 of approximately 15,000. For the 2001-02 fiscal year ending June 30, 2002, the University has an operating budget in excess of $98.7 million, which does not include the agricultural experimentation station or other associated operations. On the Fayetteville campus, the University employs approximately 2,635 faculty, administrative, secretarial, clerical and maintenance personnel in both full- time and part-time positions, making the University the largest employer in the City. 11 Other major employers in the City, their products or services and approximate number of employees are set forth below: Employer Product or Service Employee Range Pinnacle Foods Frozen Dinners 1,000-2,499 Superior Industries Cast Aluminum Wheels 1,000-2,499 Tyson's Original Mexican Mexican Food Products 500-599 Tyson's Entree Division Frozen Dinner Entrees 500-599 Levi Straus Jackets 300-399 McClinton -Anchor Co. Limestone & Hot Mix 300-399 American Air Filter Air Filters 200-299 Baldwin Piano & Organ Elec. Organs & Circ. Bed 200-299 Marshalltown Tools Cement Finishing Tools 200-299 Standard Register Business Forms 200-299 Danaher Tool Group Hand tools 100-199 Kearney Company Hi -Line Connectors 100-199 Source: Fayetteville Chamber of Commerce. THE SALES AND USE TAX Generally. The Sales and Use Tax is levied under the Election Ordinance pursuant to the authority of the Act. The Sales and Use Tax is a tax within the City on all items which are subject to taxation under The Arkansas Gross Receipts Act of 1941 and a tax on the receipts from storing, using or consuming tangible personal property under The Arkansas Compensating (Use) Tax Act of 1949. The Sales and Use Tax is collected only on the first $2,500 of gross receipts, gross proceeds or sales price from any single transaction. Pursuant to the Indenture and the Authorizing Ordinance, the City has pledged the receipts of the Sales and Use Tax to the payment of the Series 2002 Bonds. Collection of the Sales and Use Tax commenced April 1, 2002. Sales Tax. The sales tax portion of the Sales and Use Tax is generally levied upon the gross proceeds and receipts derived from all sales to any Person within. the City of the following: (a) Tangible personal property; (b) Natural or artificial gas, electricity, water, ice, steam, or any other utility or public service except transportation services, sewer services and sanitation or garbage collection services; (c) (i) Service by telephone, telecommunications and telegraph companies to subscribers or users, including transmission of messages or images, whether local or long distance, including all service, installation, construction and rental charges having any connection with transmission of any message or image; (ii) Service of furnishing rooms, suites, condominiums, townhouses, rental houses or other accommodations by hotels, apartment hotels, lodging houses, tourist camps, tourist courts, property management companies, or any other provider of accommodations to transient guests; (iii) Service of cable television, community antenna television, and any and all other distribution of television, video, or radio services with or without the use of wires provided to subscribers, paying customers or users, including installation, service, rental, repair and other charges having any connection with the providing of the said services; (iv) Service or alteration, addition, cleaning, refinishing, replacement and repair of motor vehicles, aircraft, farm machinery and implements, motors of all kinds, tires and batteries, boats, electrical appliances and devices, furniture, rugs, upholstery, household appliances, televisions and radios, jewelry, watches and clocks, engineering instruments, medical and surgical instruments, machinery of all kinds, bicycles, office machines and equipment, shoes, tin and sheet metal, mechanical tools and shop equipment; however, the tax does not apply to (A) coin operated car washes, (B) the maintenance or repair of railroad 12 parts, railroad cars and equipment brought into the City solely and exclusively for the purpose of being repaired, refurbished, modified, or converted within the City, (C) the service of alteration, addition, cleaning, refinishing, replacement or repair of commercial jet aircraft or commercial jet aircraft components or subcomponents, (D) the repair or remanufacture of industrial metal rollers or platens that have a remanufactured non-metallic material covering on all or a part of the roller or platen surface, or (E) the alteration, addition, cleaning, refinishing, replacement or repair of non -mechanical, passive or manually operated components of buildings or other improvements or structures affixed to real estate; (v) Service of providing transportation or delivery of money, property or valuables by armored car; service of providing cleaning or janitorial work; service of pool cleaning and servicing; pager services; telephone answering services; landscaping and non-residential lawn care services; service of parking a motor vehicle or allowing a motor vehicle to be parked; service of storing a motor vehicle; service of storing furs; and the service of providing indoor tanning at a tanning salon; (d) Printing of all kinds, types and characters, including the service of overprinting, and photography of all kinds; (e) Tickets or admissions to places of amusement, to athletic, entertainment, recreational events, or fees for the privilege of having access to or the use of amusement, entertainment, athletic or recreational facilities, including free or complimentary passes and tickets, admissions, dues or fees; (f) Dues and fees to health spas, health clubs and fitness clubs; dues and fees to private clubs which hold any permit from the Alcoholic Beverage Control Board allowing the sale, dispensing or serving of alcoholic beverages of any kind on the premises; and (g) Lease or rental of motor vehicles, other than diesel trucks rented for residential moving or commercial shipping or farm machinery rented or leased for a commercial purpose, for a period less than 30 days, or purchase of motor vehicles for rental or lease regardless of the length of the rental or lease. Exemptions from Sales Tax. As summarized below, several types of transactions have been exempted from the sales tax by the General Assembly of the State. Some of the current exemptions include the sale of: (a) New or used house trailers, mobile homes, aircraft, motor vehicles, trailers or semi -trailers and a used house trailer, mobile home, aircraft, motor vehicle, trailer or semi -trailer is taken as a credit or part payment of the purchase price, when the total consideration is less than the following: $2,000 for aircraft, house trailers and mobile homes (or $10,000 in case the house trailer or mobile home is a "manufactured home"); and $2,500 for motor vehicles, trailers and semi -trailers; (b) Aircraft held for resale and used for rental or charter, whether by a business or an individual for a period not to exceed one year from the date of purchase of aircraft; (c) Tangible personal property or services by churches, except where such organizations may be engaged in business for profit; (d) Tangible personal property, or service by charitable organizations, except where such organizations may be engaged in business for profit; (e) Food in public, common, high school or college cafeterias and lunchrooms operated primarily for teachers and pupils, and not operated primarily for the public or for profit; (f) Newspapers; (g) Property or services to the United States Government; motor vehicles and adaptive equipment to disabled veterans who have purchased said vehicles or equipment with financial assistance of the Veterans Administration; tangible personal property to the Salvation Army, Heifer Project International, Inc., Habitat for Humanities, the Boy Scouts of America, the Girl Scouts of America or any of the Scout Councils in the State; tangible personal property or service to the Boys Clubs of America or any local councils or organizations of the Boys Clubs of America, the Girls Clubs of America or any local councils or organizations of the Girls Clubs of 13 America, to the Poets' Roundtable of Arkansas, to 4-H Clubs and FFA Clubs, to the Arkansas 4-H Foundation, the Arkansas Future Farmers of America Foundation and the Arkansas Future Farmers of America Association; (h) Gasoline or motor vehicle fuel on which the motor vehicle fuel or gasoline tax has been paid to the State and special fuel or petroleum products sold for consumption by vessels, barges and other commercial watercraft and railroads; (i) Property resales to Persons regularly engaged in the business of reselling the articles purchased:, (j) Advertising space in newspapers and publications and billboard advertising services; (k) Gate admissions at State, district, county or township fairs or at any rodeo if the receipts derived from gate admissions to the rodeo are used exclusively for the improvement, maintenance and operation of such rodeo, and if no part of the net earnings thereof inures to the benefit of any private stockholder or individual; (1) Property or services which the State is prohibited by the constitution or laws of the United States or by the constitution of the State from taxing or further taxing and tangible personal property exempted from taxation by the Arkansas Compensating (Use) Tax Act of 1949, as amended; (m) Isolated sales not made by an established business; (n) Cotton, seed cotton, lint cotton, bated cotton, whether compressed or not, or cotton seed in its original condition; seed for use in commercial production of an agricultural product or of seed; raw products from the farm, orchard or garden, where such sale is made by the producer of such raw products directly to the consumer and user; livestock, poultry, poultry products and dairy products of producers owning not more than five cows; and baby chickens; (o) Foodstuffs to governmental agencies for free distribution to any public, penal and eleemosynary institutions or for free distribution to the poor and needy, and the rental or sale of medical equipment, for the benefit of Persons enrolled in and eligible for Medicare or Medicaid programs; (p) Tangible personal property or services provided to any hospital or sanitarium operated for charitable and nonprofit purposes or any nonprofit organization whose sole purpose is to provide temporary housing to the family members of patients in a hospital or sanitarium; (q) Used tangible personal property when the used property was (1) traded in and accepted by the seller as part of the sale of other tangible personal property and (2) the Arkansas Gross Receipts Tax was collected and paid on the total amount of consideration for the sale of the other tangible personal property without any deduction or credit for the value of the used tangible personal property; provided, however, this exemption does not apply to transactions involving used automobiles, used mobile homes, or used aircraft; (r) Unprocessed crude oil; (s) Tangible personal property consisting of machinery and equipment used directly in producing, manufacturing, fabricating, assembling, processing, finishing or packaging of articles of commerce at (i) new manufacturing or processing plants or facilities in the State or (ii) existing manufacturing or processing plants or facilities in the State if the tangible personal property is used to replace existing machinery and equipment; (t) Property consisting of machinery and equipment required by State law or regulation to be installed and utilized by manufacturing or processing plants or facilities to prevent or reduce air and/or water pollution or contamination; (u) Electricity used in the manufacture of aluminum metal by the electrolytic reduction process and sale of articles sold on the premises of the Arkansas Veterans Home; (v) Automobile parts which constitute "core charges," which are received for the purpose of securing a trade-in for the article purchased; (w) Bagging and other packaging and tie materials sold to and used by cotton gins for packaging and/or tying baled cotton and from the sale of twine which is used in the production of tomato crops; (x) Prescription drugs by licensed pharmacists, hospitals, oncologists or dispensing physicians, and oxygen sold for human use on prescription of a licensed physician; 14 (y) Property or services to humane societies; (z) Vessels, barges and towboats of at least fifty tons load displacement and parts and labor used in the repair and construction of the same; (aa) Property or sales to all orphans' homes, or children's homes, which are not operated for profit and whether operated by a church, religious organization or other benevolent charitable association; (bb) Agricultural fertilizer, agricultural limestone and agricultural chemicals; (cc) Sale of tickets or admissions, by municipalities, to places of amusement, to athletic entertainment, recreational events, or fees for the privilege of having access to or the use of amusement, entertainment, athletic or recreational facilities, including free or complimentary passes, tickets, admissions, dues or fees; (dd) Rental and/or lease of specialized equipment used in the filming of a motion picture; (ee) New and used farm machinery and equipment; (ft) New automobiles to a veteran of the United States Armed Services who is blind as a result of a service connected injury; (gg) Motor vehicles sold to municipalities, counties, school districts, and state supported colleges and universities; (hh) School buses sold to school districts and, in certain cases, to other purchasers providing school bus service to school districts; (ii) Natural gas, LP gas, or electricity sold to a processor or mining company engaging in open pit and underground mining or processing of bauxite; (jj) Feedstuffs used in the commercial production of livestock or poultry; (kk) New custom manufactured homes constructed from materials on which the State sales tax has been paid; (11) The first 500 kilowatt hours of electricity per month and the total franchise taxes billed to each residential customer whose household income is less than $12,000 per year; (mm) Waste fuel used in producing, manufacturing, fabricating, assembling, processing, finishing, or packaging of articles of commerce at manufacturing or processing plants or facilities in the State; (nn) Electricity and natural gas to qualified steel manufacturers; (oo) Tangible personal property lawfully purchased with food stamps, food coupons, food instruments or vouchers in connection with certain Federal programs; (pp) Publications sold through regular subscriptions; (qq) Tickets for admission to athletic events and interscholastic activities of public and private elementary and secondary schools in the State and tickets for admission to athletic events at public and private colleges and universities in the State; (rr) Prescriptive adaptive medical equipment and prescriptive disposable medical equipment; (ss) Insulin and test strips for testing blood sugar levels in humans; (tt) Telephone instruments sent into the State for refurbishing or repair and then shipped back to the state of origin; (uu) Industrial metal rollers sent into the State for repair or remanufacture and then shipped back to the state of origin; (vv) New motor vehicles purchased by non-profit organizations and used for the performance of contracts with the Department of Human Services, and new motor vehicles purchased with Urban Mass Transit Administration funds if (i) the vehicles are purchased in lots of ten vehicles, (ii) meet minimum State specifications, and (iii) vehicles are used for transportation under the Department of Human Services' programs for the aging, disabled, mentally ill, and children and family services; (ww) Motor fuels to owners or operators of motor buses operated on designated streets according to regular schedule and under municipal franchise which are used for municipal transportation purposes; 15 (xx) Parts or other tangible personal property incorporated into or which become a part of commercial jet aircraft component or subcomponent; (yy) Transfer of fill material by a business engaged in transporting or delivering fill material; (zz) Long-term leases, thirty days or more, of commercial trucks used for interstate transportation of goods under certain conditions; (aaa) Foodstuffs to nonprofit agencies; (bbb) Tangible personal property consisting of forms constructed of plaster, cardboard, fiberglass, natural fibers, synthetic fibers or composites and which are destroyed or consumed during the manufacture of the item; (ccc) Natural gas used as a fuel in the process of manufacturing glass; (ddd) Sales to Fort Smith Clearinghouse; (eee) Substitute fuel used in producing, manufacturing, fabrication, assembling, processing, finishing or packaging of articles at manufacturing facilities or processing plants in the State; (fff) Railroad rolling stock used in transporting persons or property in interstate commerce; (ggg) Parts or other tangible personal property which become apart of railroad parts, railroad cars and equipment brought into the State for the purpose of being repaired, refurbished, modified or converted within the State; (hhh) Fire protection and emergency equipment to be owned by and exclusively used by a volunteer fire department, and supplies and materials to be used in the construction and maintenance of volunteer fire departments; and (iii) Gas produced from biomass and sold for the purpose of generating energy to be sold to the gas producer. Reference is made to "The Arkansas Gross Receipts Act of 1941," Title 26, Chapter 52 of the Arkansas Code of 1987 Annotated, for more information concerning the sales tax. Use Tax. The use tax portion of the Sales and Use Tax is levied on every Person for the privilege of storing, using, distributing or consuming in the City any article of tangible personal property purchased for storage, use, distribution or consumption. The use tax applies to the use, distribution, storage or consumption of every article of tangible personal property except as hereinafter provided. The use tax does not apply to aircraft equipment, and railroad parts, cars, and equipment, nor to tangible personal property owned or leased by aircraft, automotive or railroad companies brought into the City solely and exclusively for refurbishing, conversion, or modification within the City or storage for use outside or inside the City regardless of the length of time any such property is so stored in the City. The use tax is levied on the following described tangible personal property: (a) Tractors, trailers, semi -trailers, trucks, buses and other rolling stock, including replacement tires, used directly in the transportation of persons or property in intrastate or interstate common carrier transportations; (b) Property (except fuel) consumed in the operation of railroad rolling stock,: (c) Transmission lines and pumping or pressure control equipment used directly in or connected to the primary pipeline facility engaged in intrastate or interstate common carrier transportation of property; (d) Airplanes and navigation instruments used directly in or becoming a part of flight aircraft engaged in transportations of persons or property in regular scheduled intrastate or interstate common carrier transportation; (e) Exchange equipment, lines, boards and all accessory devices used directly in and connected to the primary facility engaged in the transmission of messages; (f) Transmission and distribution pipelines in pumping or pressure control and equipment used in connection therewith used directly in primary pipeline facility for the purpose of transporting and delivering natural gas; (g) Transmission and distribution lines, pumping machinery and controls used in connection therewith in cleaning or treating equipment of primary water distribution system; (h) Property of public electric power companies consisting of all machinery and equipment including reactor cores and related accessory devices used in the generation and production of electric power and energy and 16 transmission facilities consisting of the lines, including poles, towers and other supporting structures, transmitting electric power and energy together with substations located on or attached to such lines; and (i) Computer software. Exemptions from Use Tax. Some of the property exempted from the use tax by the General Assembly of the State is as follows: (a) Property, the storage, use or consumption of which the State is prohibited from taxing under the Constitution or laws of the United States of America or the State; (b) Sales of tangible personal property in which the tax under the Arkansas Gross Receipts Act of 1941 is levied; (c) Tangible personal property which is exempted from the sales tax under the Arkansas Gross Receipts Act of 1941; (d) Feedstuffs used in the commercial production of livestock or poultry in the State; (e) Unprocessed crude oil; (f) Machinery and equipment used directly in producing, manufacturing, fabricating, assembling, processing, finishing or packaging of articles of commerce at manufacturing or processing plants or facilities in the State, including facilities and plants for manufacturing feed, processing of poultry and/or eggs and livestock and the hatching of poultry and such equipment is either (1) purchased to create or expand manufacturing or processing plants in the State, (2) purchased to replace existing machinery and used directly in producing, manufacturing, fabricating, assembling, processing, finishing or packaging of articles of commerce at manufacturing or processing plants in the State, or (3) required by State law to be installed and utilized by manufacturing or processing plants to prevent or reduce air and/or water pollution or contamination; (g) Custom manufactured homes constructed with materials on which the sales or use tax has once been paid; (h) Aircraft, aircraft equipment, railroad parts, cars, and equipment, and tangible personal property owned or leased by aircraft, airmotive, or railroad companies, brought into the State solely and exclusively for refurbishing, conversion, or modification or for storage for use outside or inside the State; (i) Vessels, barges, and towboats of at least 50 tons load displacement and parts and labor used in the repair and construction of them; (j) Motor fuels to the owners or operators of motor buses operated on designated streets according to regular schedule, under municipal franchise, which are used for municipal transportation purposes; (k) Agricultural fertilizer, agricultural limestone, agricultural chemicals, including agricultural pesticides and herbicides used in commercial production of agricultural products, and vaccines, medications, and medicinal preparations, used in treating livestock and poultry being grown for commercial purposes and other ingredients used in the commercial production of yeast; (I) All new and used motor vehicles, trailers or semi -trailers that are purchased for a total consideration of less than $2,000; and (m) Any tangible personal property used, consumed, distributed, or stores in this State upon which a like tax, equal to or greater than the Arkansas Compensating (Use) Tax, has been paid in another state. Reference is made to "The Arkansas Compensation (Use) Tax Act of 1949," Title 26, Chapter 53 of the Arkansas Code of 1987 Annotated, for more information concerning the use tax. Administration. Pursuant to the Act, the Commissioner of Revenues of the State (the "Commissioner") performs all functions incidental to the administration, collection, enforcement and operation of the Sales and Use Tax. All Sales and Use Tax receipts collected, less certain charges payable and retainage due the commissioner for administrative services in the amount of 3% of the gross Sales and Use Tax receipts, shall be remitted by the State Treasurer to the Trustee monthly. See the caption "SUMMARY OF THE INDENTURE — Application of Sales and Use Tax Receipts" herein. Future Sales and Use Tax Receipts. Sales and Use Tax receipts will be contingent upon the sale and use of property and services within the City, which activity is generally dependent upon economic conditions within the City. Also, Sales and Use Tax receipts may be affected by changes to transactions exempted from the Sales and Use 17 Tax made by legislation adopted by the General Assembly of the State or by the people of the State in the form of a constitutional amendment or initiated act. In the past the General Assembly of the State has considered new exemptions to the Sales and Use Tax, such as food sales, which, if adopted, would materially reduce Sales and Use Tax receipts. The City has no control over actions of the General Assembly or the people of the State and cannot predict whether changes to the Sales and Use Tax.may be made. Accordingly, the City cannot predict with certainty the expected amount of Sales and Use Tax receipts to the be received and, therefore, there can be no assurance that Sales and Use Tax receipts will be sufficient to pay the principal of and interest on the Bonds. DEFINITIONS OF CERTAIN TERMS The following are definitions of certain terms used in this Official Statement: "Account" means an Account established by Article V of the Indenture. "Act" means the Local Government Bond Act of 1985, codified as Arkansas Code Annotated (1998 Repl. & Supp. 2001) Sections 14-164-301 et seq., as from time to time amended. "Additional Bonds" means Bonds in addition to the Series 2002 Bonds which are issued under the provisions of Section 212 of the Indenture. "Amendment 62" means Amendment No. 62 to the Constitution of Arkansas, approved by the voters of the State on November 6, 1984. "Annual Debt Service" means, with respect to all or any particular amount of Bonds or any RLF Loan, as the case may be, the Debt Service for any particular Fiscal Year required to be paid or set aside during such Fiscal Year, less the amount of such payment which is provided from the proceeds of the sale of Bonds or which is drawn under an RLF Loan or from sources other than Sales and Use Tax receipts. "Authorized Representative" means either the Mayor or Administrative Service Director of the City and such additional persons as from time to time may be designated to act on behalf of the City by a Certificate furnished to the Trustee containing the specimen signature thereof and executed on behalf of the City by its Mayor. "Authorizing Ordinance" means Ordinance No. 4389, adopted by the City on May 7, 2002, which authorized the issuance of the Series 2002 Bonds pursuant to the Indenture. "Beneficial Owner" means any Person who acquires beneficial ownership interest in a Bond held by the Securities Depository. In determining the Beneficial Owner of any Bond, the Trustee may rely exclusively upon written representations made and information given to the Trustee by the Securities Depository or its Participants with respect to any Bond held by the Securities Depository in which a beneficial ownership interest is claimed. "Bond Counsel" means any firm of nationally recognized municipal bond counsel selected by the City and acceptable to the Trustee. "Bond Fund" means the fund by that name created and established in the Indenture. "Bonds" mean the Series 2002 Bonds and all Additional Bonds issued by the City pursuant to the Indenture. Except to the extent provided in Section 209 of the Indenture and except for refunding bonds issued under the Indenture, the aggregate principal amount of Bonds and any RLF Loan incurred by the City shall not exceed $125,000,000. "Book -Entry System" means the book -entry system maintained by the Securities Depository and described in the Indenture. "Certificate" means a document signed by an Authorized Representative of the City attesting to or acknowledging the circumstances or other matters therein stated. "City" means the City of Fayetteville, Arkansas, a municipality and political subdivision under the laws of the State of Arkansas. "Closing Date" means, with respect to any series of Bonds, the date upon which there is an exchange of such series of Bonds for the proceeds representing the purchase price for such series of Bonds by the Original Purchaser or Purchasers thereof. "Code" means the Internal Revenue Code of 1986, as from time to time amended, and applicable regulations issued or proposed thereunder. 18 "Continuing Disclosure Agreement" means, collectively, each Continuing Disclosure Agreement between the City and the Trustee, dated the date of issuance and delivery of a series of Bonds, as originally executed and as amended from time to time in accordance with the terms thereof. "Costs of Issuance" means all items of expense payable or reimbursable directly or indirectly by the City and related to the authorization, sale and issuance of the Bonds, including, but not limited to, underwriting discounts, fees and expenses, election expenses, publication expenses, expenses of printing, reproducing, filing and recording documents, initial fees and charges of the Trustee and any Paying Agent, fees and expenses for legal, accounting and other professional services, rating fees, costs of securing any credit enhancement for the Bonds, costs of execution, transportation and safekeeping of the Bonds, and other costs, charges and fees incurred in connection with the foregoing. "Costs of Issuance Fund" means the fund by that name created and established in the Indenture. "Debt Service" means, with respect to all or any particular amount of Bonds or any RLF Loan, as the case may be, the total as of any particular date of computation and for any particular period of the scheduled amount of interest and amortization of principal payable on such Bonds and any RLF Loan, excluding amounts scheduled during such period which relate to principal which has been retired before the beginning of such period. "Debt Service Reserve Fund" means the fund by that name created and established in the Indenture "Election Ordinance" means Ordinance No. 4327, adopted by the City Council on August 7, 2001, pursuant to which there was submitted to the qualified electors of the City the question of the issuance of the Bonds. "Event of Default" means any event of default specified in Section 801 of the Indenture. "Fiscal Year" means the 12 -month period used, at any time, by the City for accounting purposes, which may be the calendar year. "Fund" means a fund established by the Indenture. "Government Securities" means (i) bonds, notes, certificates of indebtedness, treasury bills or other securities constituting direct obligations of, or obligations on which the full and timely payment of principal and interest is fully and unconditionally guaranteed by, the United States of America (including any such securities issued or held in book -entry form on the books of the Department of Treasury of the United States of America), and (ii) evidences of direct ownership or proportionate or individual interest in future interest or principal payments on specified direct obligations of, or obligations on which the full and timely payment of principal and interest is fully and unconditionally guaranteed by, the United States of America, which obligations are held by a bank or trust company organized and existing under the laws of the United States of America or any state thereof in the capacity of custodian in form and substance satisfactory to the Trustee. "Holder" or "Bondholder" or "owner of the Bonds" means the registered owner of any Bond. "Indenture" means the Trust Indenture dated as of June 1, 2002, between the City and the Trustee, pursuant to which the Bonds are issued, and any amendments and supplements thereto. "Investment Securities" means, if and to the extent the same are at the time legal for investment of Funds and Accounts held under the Indenture: (a) Government Securities; (b) bonds, notes or other obligations of any state of the United States of America or any political subdivision of any state, which at the time of their purchase are rated in either of the two highest rating categories by a nationally recognized Rating Agency; (c) certificates of deposit or time or demand deposits constituting direct obligations of any bank, bank holding company, savings and loan association or trust company organized under the laws of the United States of America or any state thereof (including the Trustee or any of its affiliates), except that investments may be made only in certificates of deposit or time or demand deposits which are: (1) insured by the Federal Deposit Insurance Corporation, or any other similar United States Government deposit insurance program then in existence; or 19 (2) continuously and fully secured by Government Securities, which have a market value, exclusive of accrued interest, at all times at least equal to the principal amount of such certificates of depositor time or demand deposits; (d) short term discount obligations of the Federal National Mortgage Association and the Government National Mortgage Association; and (e) money market mutual funds (1) that invest in Government Securities or that are registered with the federal Securities and Exchange Commission (SEC), meeting the requirements of Rule 2a-7 under the Investment Company Act of 1940, and (2) that are rated in either of the two highest categories by a nationally recognized Rating Agency. "Mayor" means the person holding the office and performing the duties of the Mayor of the City. "Original Purchaser" means the first purchaser(s) of a series of Bonds from the City. "Outstanding" means, as of any date of computation, Bonds theretofore or thereupon being delivered under the Indenture, except: (a) Bonds cancelled at or prior to such date or delivered to or acquired by the Trustee at or prior to such date for cancellation; (b) Bonds deemed to be paid in accordance with Article VII of the Indenture; and (c) Bonds in lieu of or in exchange or substitution for which other Bonds shall have been authenticated and delivered pursuant to the Indenture. "Participants" means those financial institutions for whom the Securities Depository effects book -entry transfers and pledges of securities deposited with the Securities Depository in the Book -Entry System, as such listing of Participants exists at the time of such reference. "Paying Agent" means any bank or trust company named by the City as the place at which the principal of and premium, if any, and interest on the Bonds are payable. "Person" means any natural person, firm, association, corporation, limited liability company, partnership, joint stock company, joint venture, trust,, unincorporated organization or firm, or a government or any agency or political subdivision thereof or other public body.. "Project" means the acquisition, construction, reconstruction, extension, improving and equipping of System wastewater treatment plants, sewerage and related facilities. "Project Costs" means, to the extent permitted by the Act or other applicable laws, with respect to the Project, all costs of planning, designing, purchasing, acquiring, constructing, improving, enlarging, extending, repairing, financing and placing in operation, including obtaining governmental approvals, certificates, permits and licenses with respect thereto, heretofore or hereafter paid or incurred by or on behalf of the City and which shall include, but shall not be limited to: (a) interest accruing in whole or in part on the Bonds prior to and during construction of the Project, including all amounts required by the Indenture to be paid from the proceeds of the Bonds into the Bond Fund; (b) preliminary investigation and development costs, engineering fees, contractors' fees, labor costs, the cost of materials, equipment, utility services and supplies, costs of obtaining permits, licenses and approvals, costs of real property, insurance premiums, legal and financing fees and costs, administrative and general costs, and all other costs properly allocable to'the acquisition, construction and equipping of the Project and placing the same in operation; (c) all costs relating to injury and damage claims arising out of the acquisition, construction or equipping of the Project; (d) all other costs incurred in connection with, and properly allocable to, the acquisition, construction and equipping of the Project; and (e) amounts to pay or reimburse the City or any City fund for expenses of the City incident and properly allocable to such planning, designing, purchasing, acquiring, constructing, improving, enlarging, extending, repairing, financing and placing in operation of the Project. go "Project Fund" means the fund by that name created and established in the Indenture. "Qualified Engineer" means an independent consulting engineer or firm of independent consulting engineers not in the regular employ of the City. "RLF Loan" means any loan to the City under the Arkansas Soil and Water Conservation Commission Revolving Loan Fund Program, which loan is to be secured by Sales and Use Tax receipts on a parity basis with the Bonds. Any RLF Loan may, but need not, be structured in the form of an Additional Bond or Additional Bonds issued hereunder. "Rating Agency" means Moody's Investors Service, Standard & Poor's Ratings Services, a Division of The McGraw-Hill Companies, Inc., or Fitch, Inc., and their respective successors and assigns. If any such corporation ceases to act as a securities rating agency, the City may appoint any nationally recognized securities rating agency as a replacement. "Rebate Fund" means the fund by that name created and established in the Indenture. "Record Date" means the fifteenth day of the calendar month preceding the calendar month in which an interest payment date on the Bonds occurs. "Redemption Fund" means the fund by that name established in the Indenture. "Requisition" means a written requisition of the City, consecutively numbered, signed by an Authorized Representative including, without limitation, the following with respect to each payment requested: (i) the name of the Person or party to whom payment is to be made and the purpose of the payment, (ii) the amount to be paid thereunder; (iii) that such amount has not been previously paid by the City and is justly due and owing to the Person(s) named therein as a proper payment or reimbursement of a Project Cost; and (iv) that no Event of Default exists under the Indenture and that, to the knowledge of the Authorized Representative, no event has occurred and continues which with notice or lapse of time or both would constitute an Event of Default under the Indenture. "Reserve Requirement" means, at any particular time, an amount equal to 5% of the aggregate Outstanding principal amount of Outstanding Bonds of all series, except as may otherwise be provided in Section 508 of the Indenture with respect to RLF Loans. "Revenue Fund" means the fund by that name created and established in the Indenture. "Sales and Use Tax" means the three-quarters of one percent (0.75%) city-wide sales and use tax authorized under the Act which has been levied within the City pursuant to the Election Ordinance, the collection of which tax commenced on April 1, 2002, as approved by the voters of the City. Receipts of the Sales and Use Tax are pledged to the payment of Debt Service on the Bonds. "Securities Depository" means The Depository Trust Company, New York, New York, or its nominee, and its successors and assigns. "Series 2002 Bonds" means the City's Sales and Use Tax Capital Improvement Bonds, Series 2002, issued under and secured by the Indenture in the aggregate principal amount of $25,000,000*. "State" means the State of Arkansas. "Supplemental Indenture" means any indenture supplemental to or amendatory of the Indenture. "Surplus Tax Receipts" shall have the meaning ascribed to such term in Section 503 of the Indenture. "System" means the City's combined water and sewer utility system. "Tax Regulatory Agreement" means with respect to any series of Bonds, that Tax Regulatory Agreement of the City relating to maintenance of the excludability of interest on such Bonds from gross income for federal income tax purposes, delivered in connection with the issuance of such series of Bonds. Preliminary; subject to change. 21 "Trustee" means the banking corporation or association designated as Trustee in the Indenture, and its successor or successors as such Trustee. The original Trustee is Simmons First Trust Company, N.A. "Trust Estate" means the property described in the granting clauses of the Indenture. SUMMARY OF THE INDENTURE The following statements are brief summaries of certain provisions of the Indenture. The statements do not purport to be complete, and reference is made to the Indenture, copies of which are available for examination at the offices of the Administrative Services Director of the City, for a full statement thereof. Funds and Accounts. Receipts of the Sales and Use Tax are pledged by the Indenture to the payment of the principal of and interest on the Bonds. The following Funds and Accounts have been established with the Trustee in connection with the Bonds: Funds and Accounts Revenue Fund Bond Fund, and a Principal Account and an Interest Account therein Debt Service Reserve Fund Redemption Fund Project Fund Cost of Issuance Fund Rebate Fund Application of Sales and Use Receipts. The application of Sales and Use Tax receipts is as follows (a) Revenue Fund. All Sales and Use Tax receipts shall, as and when received, be deposited into the Revenue Fund. All moneys at any time in the Revenue Fund shall be applied on a monthly basis to the payment of Debt Service on the Bonds and any RLF Loans, to the maintenance of the Debt Service Reserve Fund, to the payment of any arbitrage rebate due under Section 148(f) of the Code, to the payment of fees and expenses of the Trustee and any Paying Agent, and to the early redemption of the Bonds, at the times and in the amounts set forth as follows: (b) Bond Fund. Upon receipt, but in no event later than the last day of each month in which Sales and Use Tax receipts are deposited in the Revenue Fund, commencing no later than June 30, 2002, there shall be transferred from the Revenue Fund (i) into the Interest Account of the Bond Fund, an amount equal to 1/6 of the interest on the Bonds due on the next interest payment date and an amount equal to the interest component of any monthly payment prescribed with respect to any RLF Loan, and (ii) into the Principal Account of the Bond Fund, an amount equal to 1/12 of the principal on the Bonds due on the next principal payment date and an amount equal to the principal component of any monthly payment prescribed with respect to any RLF Loan. Moneys in the Bond Fund shall be used solely for the purpose of paying Annual Debt Service on the Bonds or RLF Loans or for redemption of the Bonds, as provided in the Indenture. The Trustee shall withdraw from the Bond Fund, on the date of any principal or interest payment, an amount equal to such payment for the sole purpose of paying the same. If Sales and Use Tax receipts in the Revenue Fund are insufficient to make the required monthly payment into the Bond Fund, the amount of any such deficiency in the payment made shall be added to the amount otherwise required to be paid into the Bond Fund not later than last day of the next succeeding month. When the moneys held in the Revenue Fund, the Bond Fund, the Debt Service Reserve Fund and the Redemption Fund shall be and remain sufficient to pay in full the principal of and interest on all Bonds and RLF Loans then Outstanding in accordance with the Indenture, together with the required fees and expenses to be paid or reimbursed to the Trustee and any Paying Agent, the City shall have no further obligation to make payments into such Funds and the levy of the Sales and Use Tax shall cease. (c) Debt Service Reserve Fund. See the caption "SECURITY FOR THE BONDS — Debt Service Reserve" herein. (d) Redemption Fund. After making the required deposits into the Bond Fund, into the Debt Service Reserve Fund, and into the Rebate Fund, and after paying the fees and expenses of the Trustee and any Paying 22 Agent, there shall be paid from the Revenue Fund into the Redemption Fund all remaining moneys in the Revenue Fund (the "Surplus Tax Receipts"). Moneys in the Redemption Fund shall be transferred to the Principal Account of the Bond Fund at such times as may be necessary to effectuate redemptions of the Bonds on the first available redemption date. So long as the Series 2002 Bonds are Outstanding, all Surplus Tax Receipts shall be applied to the redemption of the Series 2002 Bonds prior to maturity. See the captions "THE SERIES 2002 BONDS — Redemption" and "PROJECTED MANDATORY REDEMPTIONS" herein. (e) Project Fund. A portion of the proceeds of the Series 2002 Bonds shall be deposited in the Project Fund. See the caption "ESTIMATED SOURCES AND USES OF FUNDS" herein. Amounts in the Project Fund shall be expended only for the payment of Project Costs upon the submission of Requisitions by the City to the Trustee. The Trustee shall only make payments from the Project Fund pursuant to and in accordance with Requisitions. Within ninety (90) days following completion of the portion of the Project being financed with a particular series of Bonds, the City shall deliver to the Trustee its Certificate stating that the applicable portion of the Project is complete and the Trustee shall transfer the remaining moneys in the Project Fund relating to such series of Bonds (save and except moneys needed to satisfy unpaid Project Costs) to the Redemption Fund for application to the retirement of Bonds. See the caption "THE SERIES 2002 Bonds — Redemption" herein. (f) Cost of Issuance Fund. A portion of the proceeds of the Series 2002 Bonds shall be deposited to the credit of the Cost of Issuance Fund. The Trustee shall pay those Costs of Issuance as directed by the City pursuant to a Certificate delivered on a Closing Date. After all Costs of Issuance have been paid with respect to a series of Bonds, any remaining moneys in the Cost of Issuance Fund shall be transferred to the Interest Account of the Bond Fund. (g) Rebate Fund. The Trustee shall establish and maintain, separate and apart from any other Funds and Accounts established and maintained under the Indenture, the Rebate Fund, which Fund is not pledged to the payment of any Bonds or RLF Loan. Subject to transfer to the United States in payment of any arbitrage rebate due under Section 148(f) of the Code, all moneys at any time deposited in the Rebate Fund shall be held by the Trustee in trust, and neither the City nor the Owner of any Bond shall have any rights in or claim to such money. Any amounts remaining in the Rebate Fund after payment in full of the rebate amount owing to the United States, within sixty (60) days after the date on which the last Bond is redeemed, shall be transferred to the Revenue Fund. Investment of Funds. At the direction of the City or absent such direction, the Trustee shall invest moneys in Funds or Accounts held by the Trustee in Investment Securities with maturity or redemption dates consistent with the times at which said moneys will be required for the purposes provided in the Indenture; provided, however, the stated maturity dates of Investment Securities of Debt Service Reserve Fund moneys shall not exceed five years from the date of investment therein. Moneys in separate Funds or Accounts may be commingled for the purpose of investment. Obligations purchased as an investment of moneys in any Fund or Account created by the Indenture shall be deemed at all times to be a part of such Fund or Account, and any income or loss due to an investment thereof shall be charged to the respective Fund or Account for which the investment was made except as otherwise provided in the Indenture. Investments in any Fund or Account shall be evaluated at least annually by the Trustee. For the purpose of determining the amount in any Fund or Account, the City and the Trustee shall value all Investment Securities credited to such Fund or Account at the price at which such Investment Securities are redeemable by the Holders or owners thereof at their option if so redeemable, or, if not so redeemable, at the lesser of (i) the cost of such Investment Securities minus the amortization of any premium or plus the amortization of any discount thereon and (ii) the market value of such Investment Securities, provided that Investment Securities credited to the Debt Service Reserve Fund, if not so redeemable, shall be valued at the cost thereof minus the amortization of any premium or plus the amortization of any discount thereon. Valuation of Funds and Accounts. In determining the value of any Fund or Account held by the Trustee under the Indenture, the Trustee shall credit Investment Securities at the fair market value thereof, as determined by the Trustee by any method selected by the Trustee in its reasonable discretion. No less frequently than annually, and in any event within thirty (30) days prior to the end of each Fiscal Year, the Trustee shall determine the value of each Fund and Account held under the Indenture and shall report such determination to the City. The Trustee shall sell or present for redemption any Investment Securities as necessary in order to provide money for the purpose of making any payment required under the Indenture, and the Trustee shall not be liable for any loss resulting from any such sale. 23 Responsibility of Trustee. The Trustee shall not be responsible or liable for any loss suffered in connection with any investment of moneys made by it at the direction of the City. Instruments of Further Assurance. At any and all times the City shall, so far as it may be authorized by law, pass, make, do, execute, acknowledge and deliver, all and every such further resolutions, ordinances, acts, deeds, conveyances, assignments, transfers and assurances as may be necessary or desirable for the better assuring, conveying, granting, pledging, assigning and confirming of all and singular the receipts from the Sales and Use Tax and all other moneys pledged or assigned by the Indenture, or intended so to be, or which the City may become bound to pledge or assign. Tax Covenants. The City shall not use or permit the use of any Bond proceeds or any other funds of the City, directly or indirectly, in any manner, and will not take or permit to be taken any other action or actions which would adversely effect the exclusion of interest on any Bond from gross income for federal income tax purposes. No part of the proceeds of the Bonds shall at any time be used, directly or indirectly, to acquire securities or obligations the acquisition of which would cause any of such Bonds to be an "arbitrage bond" as defined in Sections 148(a) and (b) of the Code. The City agrees that so long as any of the Bonds remain Outstanding, it will comply with the provisions of each applicable Tax Regulatory Agreement. Drawdowns Under RLF Loans. The City covenants and agrees not to requisition amounts available under any RLF Loan unless the Sales and Use Tax receipts during the Fiscal Year immediately preceding the Fiscal Year in which such Requisition is to occur were not less than 125% of the maximum Annual Debt Service on all Outstanding Bonds and any RLF Loan following such Requisition. Defeasance. Any Bond shall be deemed to be paid within the meaning of the Indenture when payment of the principal of and premium, if any, and interest on such Bond (whether at maturity or upon redemption as provided in the Indenture, or otherwise), either (i) shall have been made or caused to be made in accordance with the terms thereof, or (ii) shall have been provided for by irrevocably depositing with the Trustee, in trust and irrevocably set aside exclusively for such payment, (1) moneys sufficient to make such payment or (2) Government Securities (provided that such deposit will not affect the tax-exempt status of the interest on any of the Bonds or cause any of the Bonds to be classified as "arbitrage bonds" within the meaning of Section 148(a) of the Code, as reflected in an opinion of Bond Counsel delivered to the Trustee), maturing as to principal and interest in such amounts and at such times as will provide sufficient moneys to make such payment, and all necessary and proper fees, compensation and expenses of the Trustee and any Paying Agent pertaining to the Bonds with respect to which such deposit is made shall have been paid or the payment thereof provided for to the satisfaction of the Trustee and any said Paying Agent. Events of Default. Each of the following events shall constitute and is referred to in the Indenture as an "Event of Default": (a) Default in the due and punctual payment of any interest on any Bond; (b) Default in the due and punctual payment of the principal of or premium, if any, on any Bond, whether at the stated maturity thereof, or upon proceedings for redemption thereof, or upon the maturity thereof by declaration; (c) Default in the payment of any other amount required to be paid under the Indenture or the performance or observance of any other of the covenants, agreements or conditions contained in the Indenture, or in the Bonds issued under the Indenture, and continuance thereof for a period of sixty (60) days after written notice specifying such failure and requesting that it be remedied, shall have been given to the City by the Trustee, which may give such notice in its discretion and shall give such notice at the written request of Holders of not less than fifty-one percent (51%) in aggregate principal amount of the Bonds then Outstanding, unless the Trustee, or the Trustee and Holders of an aggregate principal amount of Bonds not less than the aggregate principal amount of Bonds the Holders of which requested such notice, as the case may be, shall agree in writing to an extension of such period prior to its expiration; provided, however, if the failure stated in the notice cannot be corrected within the applicable period, the Trustee will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by the City within such period and is being diligently pursued; (d) The filing of a petition in bankruptcy by or against the City under the United States Bankruptcy Code or the commencement of a proceeding by or against the City under any other law concerning insolvency, reorganization or bankruptcy. And 24 (e) If the State has limited or altered the rights of the City pursuant to the Act, as in force on the date of the Indenture, to fulfill the terms of any agreements made with the Trustee or the Bondholders or in any way impaired the rights and remedies of the Trustee or the Bondholders while any Bonds are Outstanding. The term "default" as used in clauses (a), (b) and (c) above shall mean default by the City in the performance or observance of any of the covenants, agreements or conditions on its part contained in the Indenture, or in the Bonds Outstanding thereunder, exclusive of any period of grace required to constitute a default an "Event of Default" as described above. Acceleration. Upon the occurrence of an Event of Default, the Trustee may, and upon the written request of the Holders of not less than 51% in aggregate principal amount of Bonds Outstanding shall, by notice in writing delivered to the City, declare the principal of all Bonds then Outstanding, together with any premium and the interest accrued thereon, immediately due and payable, and such principal and interest shall thereupon become and be immediately due and payable. Other Remedies; Rights of Bondholders. Upon the occurrence of an Event of Default, the Trustee may, as an alternative, pursue any available remedy by suit at law or in equity, including, without limitation, mandamus to enforce the payment of the principal of and premium, if any, and interest on the Bonds then Outstanding. If an Event of Default shall have occurred, and if it shall have been requested so to do by the Holders of 51% in aggregate principal amount of Bonds Outstanding and if it shall have been indemnified as provided in the Indenture, the Trustee shall be obligated to exercise such one or more of the rights and powers conferred upon it by the Indenture as the Trustee, being advised by counsel, shall deem most expedient in the interests of the Bondholders. No remedy by the terms of the 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 under the Indenture 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 under the Indenture, whether by the Trustee or by the Bondholders, shall extend to or shall affect any subsequent default or Event of Default or shall impair any rights or remedies consequent thereon. Rights and Remedies of Bondholders. No Holder of any Bond shall have any right to institute any suit, action or proceeding in equity or at law for the enforcement of the Indenture or for the execution of any trust thereof or for the appointment of a receiver or any other remedy thereunder, unless a default has occurred of which the Trustee has been notified as provided in the Indenture, or of which by the Indenture it is deemed to have notice, nor unless such default shall have become an Event of Default and the Holders of not less than 51% in aggregate principal amount of Bonds Outstanding shall have made written request to the Trustee and shall have offered it reasonable opportunity either to proceed to exercise the powers 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 the Indenture nor unless the Trustee shall thereafter fail or refuse to exercise the powers granted, or to institute such action, suit, or proceeding in its own name; and such notification, request and offer of indemnity are declared in every such case at the option of the Trustee to be conditions precedent to the execution of the powers and trusts of the Indenture, and to any action or cause of action for the enforcement of the Indenture or for the appointment of a receiver or for any other remedy thereunder; it being understood and intended that no one or more Holders of the Bonds shall have any right in any manner whatsoever to affect, disturb or prejudice the lien of the Indenture by action of the Holder or Holders or to enforce any right under the Indenture except in the manner therein provided, and that all proceedings at law or in equity shall be instituted, held and maintained in the manner therein provided for the equal benefit of the Holders of all Bonds Outstanding thereunder. Nothing in the Indenture contained shall, however, affect or impair the right of any Bondholders to enforce the payment of the principal of and premium, if any, and interest on any Bonds at and after the maturity thereof, or the obligation of the City to pay the principal of and premium, if any, and interest on each of the Bonds issued under the Indenture to the respective Holders thereof at the time and place in said Bonds expressed. Supplemental Indentures Not Requiring Consent of Bondholders. The City and the Trustee may, from time to time and at any time, without the consent of or notice to the Bondholders, enter into Supplemental Indentures as follows: 25 (a) to cure any formal defect, omission, inconsistency or ambiguity in the Indenture; (b) to grant to or confer or impose upon the Trustee for the benefit of the Bondholders any additional rights, remedies, powers, authority, security, liabilities or duties which may lawfully be granted, conferred or imposed and which are not contrary to or inconsistent with the Indenture as theretofore in effect, provided that no such additional liabilities or duties shall be imposed upon the Trustee without its consent; (c) to add to the covenants and agreements of, and limitations and restrictions upon, the City in the Indenture other covenants, agreements, limitations and restrictions to be observed by the City which are not contrary to or inconsistent with the Indenture as theretofore in effect; (d) to confirm, as further assurance, any pledge under, and the subjection to any claim, lien or pledge created or to be created by, the Indenture, of the Trust Estate or of any other moneys, securities or funds; (e) to comply with the requirements of the Trust Indenture Act of 1939, as from time to time amended; (f) to authorize the issuance and sale of one or more series of Additional Bonds; (g) to make such additions, deletions or modifications as may be necessary to assure compliance with Section 148(f) of the Code relating to required rebate to the United States or otherwise as may be necessary to assure exemption from federal income taxation of interest on the Bonds; or (h) to modify, alter, amend or supplement the Indenture in any other respect which is not materially adverse to the Bondholders and which does not involve a change described in clause (a), (b), (c), (d), (e) or (f) below and which, in the judgment of the Trustee, is not to the prejudice of the Trustee. Supplemental Indentures Requiring Consent of Bondholders. Subject to the terms and provisions contained in this paragraph, and not otherwise, the Holders of not less than 2/3 in aggregate principal amount of the Bonds then Outstanding shall have the right, from time to time, anything contained in the Indenture to the contrary notwithstanding, to consent to and approve the execution by the City and the Trustee of such indenture or indentures supplemental to the Indenture 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 the Indenture or in any Supplemental Indenture; provided, however, that nothing contained in the Indenture shall permit or be construed as permitting (a) an extension of the maturity (or mandatory redemption date) of the principal of or the interest on any Bond issued thereunder, or (b) a reduction in the principal amount of or redemption premium or rate of interest on any Bond issued thereunder, or (c) the creation of any lien on the Trust Estate or any part thereof, except as expressly permitted in the 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 Indenture, or (f) depriving the Holder of any Bond then Outstanding of the lien created on the Trust Estate. If, at any time the City shall request the Trustee to enter into any Supplemental Indenture for any of the purposes described above, the Trustee shall, at the expense of the City, cause notice of the proposed execution of such Supplemental Indenture to be mailed by first class mail to each registered owner of the Bonds. 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 Bondholders. The Trustee shall not, however, be subject to any liability to any Bondholder by reason of its failure to mail such notice, and any such failure shall not affect the validity of such Supplemental Indenture when consented to and approved as provided above. If the Holders of not less than 2/3 in aggregate principal amount of the Bonds Outstanding at the time of the execution of any such Supplemental Indenture shall have consented to and approved the execution thereof, 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. SUMMARY OF THE CONTINUING DISCLOSURE AGREEMENT The City has entered into an undertaking in the form of the Continuing Disclosure Agreement as required by the Indenture for the benefit of the Beneficial Owners of the Series 2002 Bonds to cause certain financial information to be sent to certain information repositories annually and to cause notice to be sent to such information repositories of certain specified events, pursuant to the requirements of Section (b)(5)(i) of Rule 15c2-12 of the Securities Exchange Act of 1934, as amended (the "Rule"). The City has not failed to comply with any previous undertaking pursuant to the Rule. 26 The Continuing Disclosure Agreement contains the following covenants and provisions: (a) The City shall, not later than August 1 of each year, commencing August 1, 2002, provide to each Repository and the Trustee its Annual Financial Information consistent with the requirements of subsection (d) below. (b) If, on the date specified in subsection (a) above for providing the Annual Financial Information to Repositories, the Trustee has not received a copy of the Annual Financial Information, the Trustee shall contact the Disclosure Representative to determine if the City is in compliance with subsection (a). (c) If the Trustee is unable to verify that the Annual Financial Information has been provided to the Repositories by the date required within subsection (a), the Trustee shall file a notice to such effect with the Repositories and the MSRB. (d) The City's Annual Financial Information shall contain or incorporate by reference the following: (i) Receipts of the Sales and Use Tax for the latest Fiscal Year and for the four previous Fiscal Years, if available. . (ii) The City's audited financial statements for the prior Fiscal Year, prepared in accordance with accounting principles generally accepted in the United States ("GAAP") as such principles are modified by the governmental accounting standards promulgated by the Government Accounting Standards Board ("GASB") and by mandated principles of the State of Arkansas, if any, as in effect from time to time, which financial statements have been audited by such auditor as shall then be required or permitted by the laws of the State of Arkansas. If the City's audited financial statements are not available by the time its Annual Financial Information is required to be filed pursuant to subsection (a) above, the Annual Financial Information shall contain the unaudited financial statements of the City, and the audited financial statements shall be filed in the same manner as the Annual Financial Information when they become available. (e) The City has agreed to instruct the Trustee to deliver to each National Repository, or the MSRB and the Arkansas State Repository, notice of the occurrence of any of the following Specified Events, if deemed material: (i) Principal and interest payment delinquencies; (ii) Non-payment related defaults; (iii) Unscheduled draws on any debt service reserve reflecting financial difficulties; (iv) Unscheduled draws on any credit enhancement reflecting financial difficulties; (v) Substitution of any credit or liquidity providers, or their failure to perform; (vi) Adverse tax opinions or events affecting the tax-exempt status of the Series 2002 Bonds; (vii) Modifications to rights of Bondowners; (viii) Bond calls; (ix) Defeasances; (x) Release, substitution or sale of property securing payment of the Series 2002 Bonds; or (xi) Rating changes. (f) The City has agreed that the foregoing undertakings shall be for the benefit of the Beneficial Owners of the Series 2002 Bonds, and shall be enforceable by any Beneficial Owner of the Series 2002 Bonds in an action for specific performance against the City. (g) The continuing obligation of the City to provide Annual Financial Information and notice of the occurrence of Specified Events, if material, will terminate if the City is no longer an "obligated person" within the meaning of the Rule or upon the maturity, defeasance, prior redemption or payment in full of the Series 2002 Bonds. The City and the Trustee may amend the Continuing Disclosure Agreement, and any provision of the Continuing Disclosure Agreement may be waived, if such amendment or waiver is supported by an opinion of counsel, reasonably acceptable to each of the City and the Trustee, to the effect that such amendment or waiver would not, in and of itself, cause the undertakings under the Continuing Disclosure Agreement to violate the Rule, taking into account any subsequent change in or official interpretation of the Rule. 27 (h) The following terms used under this caption shall have the meanings set forth below: "Annual Financial Information" means the annual financial information to be provided by the City of the type described in the Continuing Disclosure Agreement. "Arkansas State Repository" means any public or private repository or entity as may be designated by the State of Arkansas as a state repository for purposes of the Rule and recognized as such by the SEC. As of the date of the Continuing Disclosure Agreement, there is no Arkansas State Repository. "Beneficial Owner" means any Person which has the power, directly or indirectly, to vote or consent with respect to, or to dispose of ownership of, any Series 2002 Bonds, including Persons holding Series 2002 Bonds through nominees or depositories. "Disclosure Representative" means the City's Administrative Services Director or his or her designee, or such other officer or employee as the City shall designate in writing to the Trustee from time to time. "Fiscal Year" means the 12 -month period used, at any time, by the City for accounting purposes, which may be the calendar year. The City's fiscal year presently ends on December 31. "MS" means the Municipal Securities Rulemaking Board. "National Repository" means any nationally recognized municipal securities information repository for purposes of the Rule. "Participating Underwriter" means Stephens Inc. "Repository" means each National Repository and the Arkansas State Repository. "Specified Events" means each of the events with respect to the Series 2002 Bonds listed in subsection (e) above. (i) A failure by the City to comply with the provisions of the Continuing Disclosure Agreement will not constitute an Event of Default under the Indenture, and the sole remedy in such an event shall be an action to compel specific performance. Nevertheless, such a failure to comply must be reported in accordance with the Rule and must be considered by any broker, dealer or municipal securities dealer before recommending the purchase or sale of the Series 2002 Bonds in the secondary market. Consequently, such a failure may adversely affect the transferability and liquidity of the Series 2002 Bonds. UNDERWRITING Under a bond purchase agreement entered into by and among the City and Stephens Inc. (the "Underwriter"), the Series 2002 Bonds are being purchased at a purchase price of $ (representing the stated principal amount of the Series 2002 Bonds less an underwriting discount of $) plus accrued interest from June 1, 2002 to the date of delivery of the Series 2002 Bonds. The bond purchase agreement provides that the Underwriter will purchase all of the Series 2002 Bonds if any are purchased. The obligation of the Underwriter to accept delivery of the Series 2002 Bonds is subject to various conditions contained in the bond purchase agreement, including the absence of pending or threatened litigation questioning the validity of the Series 2002 Bonds or any proceedings in connection with the issuance thereof, and the absence of material adverse changes in the financial condition of the City. The Underwriter intends to offer the Series 2002 Bonds to the public initially at the offering prices as set forth on the cover page of this Official Statement, which offering prices (or bond yields establishing such offering prices) may subsequently change without any requirement of prior notice. The Underwriter reserves the right to join with dealers and other underwriters in offering the Series 2002 Bonds to the public, and may offer the Series 2002 Bonds to such dealers and other underwriters at a price below the public offering price. The City has agreed to indemnify the Underwriter against certain civil liabilities in connection with the offering and sale of the Series 2002 Bonds, including certain liabilities under federal securities laws. Stephens Inc. has served the City in the capacity of a financial advisor in connection with the financing of the Project. For the purpose of facilitating a negotiated bond financing or financings to finance a portion of the cost of the Project, the City and Stephens Inc. have amended their financial advisory agreement to limit the scope of the agreement solely to the portion of the financing of the Project to be provided by an RLF Loan and to exclude from the scope of the agreement any financial advisory services relating to the Series 2002 Bonds or any other bond financing of the Project. The City and Stephens Inc. acknowledge that a conflict of interest could arise from the change of the role of Stephens Inc. from financial advisor to Underwriter. Stephens Inc. will receive compensation for its services as Underwriter in an amount equal to the underwriting discount, as set forth in the second preceding paragraph. TAX EXEMPTION Federal Income Taxes. In the opinion of Kutak Rock LLP, Bond Counsel, under existing law, the interest on the Series 2002 Bonds is excludable from the gross income of the owners thereof for federal income tax purposes and is not an item of tax preference for purposes of the federal alternative minimum tax imposed on individuals and corporations; it should be noted, however, that for purposes of computing the alternative minimum tax imposed on corporations (as defined for federal income tax purposes), such interest is taken into account in determining adjusted current earnings and profits. The opinions set forth in the preceding sentence are subject to the condition that the City comply with all requirements of the Code that must be satisfied subsequent to the issuance of the Series 2002 Bonds in order that the interest thereon be, or continue to be, excludable from gross income for federal income tax purposes. The City has covenanted to comply with each such requirement. Failure to comply with certain of such requirements may cause the inclusion of interest on the Series 2002 Bonds in gross income for federal income tax purposes to be retroactive to the date of issuance of the Series 2002 Bonds. Bond Counsel expresses no opinion regarding other federal tax consequences arising with respect to the Series 2002 Bonds. Prospective purchasers of the Series 2002 Bonds should be aware that ownership of tax-exempt obligations may result in collateral federal income tax consequences to certain taxpayers, including, without limitation, financial institutions, property and casualty insurance companies, certain foreign corporations doing business in the United States, certain Subchapter S corporations with excess passive income, individual recipients of Social Security or Railroad Retirement benefits and taxpayers who may be deemed to have incurred or continued indebtedness to purchase or carry tax-exempt obligations. Prospective purchasers of the Series 2002 Bonds should consult their tax advisors as to applicability of any such collateral consequences. State Taxes. Bond Counsel is of the opinion that, under existing law, the interest on the Series 2002 Bonds is exempt from all state, county and municipal taxes in the State of Arkansas. RATING Standard & Poor's Ratings Services, a Division of The McGraw-Hill Companies, Inc. ("S&P"), has given the Series 2002 Bonds the rating of "AA-". Such rating reflects only the view of S&P at the time such rating was given. An explanation of the significance of the rating may be obtained from S&P. There is no assurance that such rating will continue for any given period of time or that the rating will not be revised downward or withdrawn entirely by S&P if in its judgment circumstances so warrant. Any downward revision or withdrawal of the rating may have an adverse effect on the market price of the Series 2002 Bonds. Neither the City nor the Underwriter have undertaken any responsibility subsequent to the issuance of the Series 2002 Bonds to assure the maintenance of the rating or to oppose any revision or withdrawal of the rating. No application has been made to any Rating Agency other than S&P for a rating on the Series 2002 Bonds. LEGAL MATTERS Legal Opinions. Legal matters incident to the authorization and issuance of the Series 2002 Bonds are subject to the unqualified approving opinion of Kutak Rock LLP, Little Rock, Arkansas, Bond Counsel, a copy of whose approving opinion will be delivered with the Series 2002 Bonds and a form of which is attached hereto as Appendix A. Certain legal matters will be passed upon for the City by its counsel, Kit Williams, Esq., City Attorney. Litigation. There is no litigation pending seeking to restrain or enjoin the issuance or delivery of the Series 2002 Bonds or questioning or affecting the legality of the Series 2002 Bonds or the proceedings and authority under which the Series 2002 Bonds are to be issued, or questioning the right of the City to issue the Series 2002 Bonds. Except as set forth in the following paragraph, there is no action, suit or proceeding known to be pending or threatened, restraining or enjoining the City in any way which could have a material adverse effect on the City or its financial affairs. The City is presently a defendant or co-defendant in two separate actions where the amount of damages sought exceeds $50,000. In one of these cases, the City has prevailed at the trial court level with a summary 29 judgment. This case is currently on appeal. In the second case, a motion to dismiss filed by the City and other defendants is pending. Counsel for the City is actively defending each of these proceedings, and as of the date of this Official Statement, the City believes the likelihood of unfavorable outcomes is remote. Further, the City does not know of any fact or set of facts from which the liability might arise which individually or collectively would materially affect the financial position of the City. MISCELLANEOUS Any statements made in this Official Statement involving matters of opinion or of estimates, whether or not so expressly stated, are set forth as such and not as representations of fact, and no representation is made that any of the estimates will be realized. This Official Statement is not to be construed as a contract or agreement between the City and the purchasers or owners of any of the Series 2002 Bonds. ACCURACY AND COMPLETENESS OF OFFICIAL STATEMENT The information contained in this Official Statement has been taken from sources considered to be reliable, but is not guaranteed. To the best of the knowledge of the City, this Official Statement does not include any untrue statement of a material fact, nor does it omit the statement of any material fact required to be stated herein, or necessary to make the statements herein, in light of the circumstances under which they were made, not misleading. The execution and delivery of this Official Statement has been duly authorized by the City of Fayetteville, Arkansas. CITY OF FAYETTEVILLE, ARKANSAS Mayor 30 APPENDIX A Proposed Form of Bond Counsel Opinion Kutak Rock LLP, Bond Counsel, will render an opinion with respect to the Series 2002 Bonds, dated the date of issuance and delivery thereof, in substantially the following form: June _, 2002 City.of Fayetteville, Arkansas Fayetteville, Arkansas Simmons First Trust Company, N.A., as Trustee Little Rock, Arkansas Stephens Inc. Little Rock, Arkansas $25,000,000* City of Fayetteville, Arkansas Sales and Use Tax Capital Improvement Bonds Series 2002 Ladies and Gentlemen: We have acted as bond counsel in connection with the issuance and sale by the City of Fayetteville, Arkansas (the "City"), a political subdivision of the State of Arkansas, of its $25,000,000Sales and Use Tax Capital Improvement Bonds, Series 2002 (the "Bonds"). The Bonds are being issued pursuant to the provisions of the Constitution and laws of the State of Arkansas, including, particularly, Amendment 62 and Arkansas Code Annotated (1998 Repl. & Supp. 2001) §§14- 164-301 et seq. (as from time to time amended, the "Act"), pursuant to Ordinance No. 4389 of the City, duly adopted and approved on May 7, 2002 (the "Authorizing Ordinance"), and pursuant to a Trust Indenture dated as of June 1, 2002 (the "Indenture"), by and between the City and Simmons First Trust Company, N.A., as trustee (the "Trustee"). Reference is hereby made to the Indenture and to all indentures supplemental thereto for the provisions, among others, with respect to the conditions for the issuance of parity debt by the City, the nature and extent of the security for the Bonds, the rights, duties and obligations of the City, the Trustee and the Holders of the Bonds, and the terms upon which the Bonds are issued and secured. Reference is made to an opinion of even date herewith of Kit Williams, Esq., City Attorney, a copy of which is on file with the Trustee, with respect, among other matters, to the status and valid existence of the City, the power of the City to adopt the Election Ordinance and the Authorizing Ordinance and to enter into and perform its obligations under the Indenture, the valid adoption of the Election Ordinance and the Authorizing Ordinance, and the due authorization, execution and delivery of the Indenture by the City, and with respect to the Indenture being enforceable upon the City. We have examined the law and such certified proceedings and other papers as we have deemed necessary to render this opinion. As to questions of fact material to our opinion, we have relied upon the representations of the City contained in the Election Ordinance, the Authorizing Ordinance and the Indenture and in the certified proceedings and other certifications of public officials furnished to us, without undertaking to verify the same by independent investigation. Based upon the foregoing, we are of the opinion, under existing law, as follows: A-1 1. The City is duly created and validly existing as a municipal corporation of the State of Arkansas. Pursuant to the Constitution and laws of the State of Arkansas, including, particularly, Amendment 62 and the Act, the City is empowered to adopt the Election Ordinance and the Authorizing Ordinance, to execute and deliver the Indenture, to perform the agreements on its part contained therein, and to issue the Bonds. 2. The Authorizing Ordinance has been duly adopted by the City and constitutes a valid and binding obligation of the City enforceable upon the City in accordance with its terms. 3. The Indenture has been duly authorized, executed and delivered by the City and is a valid and binding obligation of the City enforceable upon the City in accordance with its terms. 4. The Bonds have been validly authorized, executed, issued and delivered by the City and represent valid and binding special obligations of the City. The principal, premium, if any, and interest on the Bonds shall be payable from, and shall be secured by an assignment and pledge by the City to the Trustee of, the receipts of the Sales and Use Tax (as defined in the Indenture). 5. The Sales and Use Tax receipts have been duly and validly assigned and pledged to the Trustee under the Indenture, and the Indenture creates, as security for the Bonds, a valid security interest in the Sales and Use Tax receipts. Under the laws of the State of Arkansas, including, particularly, Arkansas Code Annotated (2001 Repl.) Section 4-9-109(d)(14), the pledge, assignment and security interest in the Sales and Use Tax receipts securing the Bonds is and shall be prior to any judicial lien hereafter imposed on the Sales and Use Tax receipts to enforce a judgment against the City on a simple contract, and it is not necessary to file a Uniform Commercial Code financing statement in order to perfect a security interest in the Sales and Use Tax receipts. 6. The interest on the Bonds is excluded from gross income for federal income tax purposes and is not an item of tax preference for purposes of the federal alternative minimum tax imposed on individuals and corporations; it should be noted, however, that, for the purpose of computing the alternative minimum tax imposed on corporations (as defined for federal income tax purposes), such interest is taken into account in determining adjusted current earnings for purposes of such alternative minimum tax. The opinions set forth in the preceding sentence are subject to the condition that the City comply with all requirements of the Internal Revenue Code of 1986, as amended, that must be satisfied prior to or subsequent to the issuance of the Bonds in order that the interest thereon be, or continue to be,excluded from gross income for federal income tax purposes. The City has covenanted to comply with each such requirement. Failure to comply with certain of such requirements may cause the inclusion of interest on the Bonds in gross income for federal income tax purposes to be retroactive to the date of issuance of the Bonds. We express no opinion regarding other federal tax consequences arising with respect to the Bonds. 7. The interest on the Bonds is exempt from all state, county and municipal taxes in the State of Arkansas. 8. The Bonds are exempt from registration pursuant to the Securities Act of 1933, as amended, and the Indenture is not required to be qualified under the Trust Indenture Act of 1939, as amended, in connection with the offer and sale of the Bonds. It is to be understood that the rights of the registered owners of the Bonds and the enforceability of the Bonds, the Authorizing Ordinance and the Indenture may be subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights heretofore or hereafter enacted to the extent constitutionally applicable and that their enforcement may also be subject to the exercise of judicial discretion in appropriate cases. Very truly yours, A-2 RECEIVEC MAY 13 2002 ACCTG. DEP1 SIMMONS FIRST TRUST COMPANY, N.A. April 12, 2002 City of Fayetteville Attn: Peggy Vice 113 West Mountain Fayetteville, AR 72701 Ref: City of Fayetteville, Arkansas Sales Tax Bonds Dear Peggy: Thank you for providing Simmons First the opportunity to assist you with your banking needs. A brief certification of acceptance for the issue and a description of the fees are enclosed for your review. If you have any questions or require any additional information please feel free to contact me. I may be reached at the following: Glenda L. Dean, Corporate Trust Officer Simmons First Trust Company, N.A. 501 Main Pine Bluff, AR 71601 P.O. Box7009 at Pine Bluff, AR 71611 Phone 870.541.1424 800 # 1.800.442.0888 extension 1424 Fax 870.541.1418 E Mail glenda dean(asimmonsfirst.com LuJuana Jones will be administrative assistant assigned to the account and she may be reached at the following numbers: Phone 870.541.1079 E Mail luivana.iones@simmonsfirst.com t. 501 MAIN STREET / P. 0. BOX 7009 / PINE BLUFF. ARKANSAS 71 61 1-7009 / (870) 541-1110 City of Fayetteville April 12, 2002 Page 2 Again, thank you for providing Simmons First the opportunity to meet your banking needs. Sincerely, CGS Glenda L. Dean Corporate Trust Officer Enclosure (1) Cc: File CERTIFICATE OF TRUSTEE RELATING TO TRUST POWERS AND INCUMBENCY, AUTHORIZATION, AND IDENTIFICATION OF OFFICER I, the undersigned duly authorized officer of Simmons First Trust Company, N.A., Pine Bluff, Arkansas appointed as Trustee for the City of Fayetteville, Arkansas Sales & Use Tax Bond, duly certified and authorized to execute and deliver this Certificate and other documents on behalf of the Trustee. The Trustee is a national banking association validly existing in good standing under the laws of the United States, and its officers have the power and lawful authority to act as Trustee and Paying Agent. 2. Simmons First Trust Company, N.A. does hereby reaffirm its acceptance of the duties and obligations imposed on it as Trustee and Paying Agent. The below named officer of the Trust Company were at the time of the acts mentioned above duly elected or appointed, qualified and acting officer of the Trust Company and duly authorized to perform such acts. Glenda L. Dean, Corporate Trust Officer IN WITNESS WHEREOF, I have hereunto set my hand this 12th day of April 2002 SIMMONS FIRST TRUST COMPANY, N.A. By: e Clement, III President City of Fayetteville, Arkansas Trustee and Paying Agent Fee Schedule 100,000,000 City of Fayetteville, Arkansas Soil & Water Commission Revolving Loan Program (14 year maturity) Authentication Fee $ 2,000.00 Annual Administration $ 2,500.00 Plus an additional $500.00 per year if trustee will be handling construction funds Acceptance & Registration Included in Authentication Fee Legal & Additional Fees or Charges Dissemination of financial material to NMSIRS annually $100.00 If 5 copies of financials are not provided Any out of pocket expenses or required consultation with Trustee Council will be passed on at cost. Paying Agent Fees Included in Annual Administration 15,000,000 City of Fayetteville, Arkansas (5 year maturity) Authentication Fee $ 2,000.00 Annual Administration $ 2,100.00 Plus an additional $500.00 per year if trustee will be handling construction funds Acceptance & Registration Included in Authentication Fee Legal & Additional Fees or Charges Dissemination of financial material to NMSIRS annually $100.00 If 5 copies of financials are not provided Any out of pocket expenses or required consultation with Trustee Council will be passed on at cost. Paying Agent Fees Included in Annual Administration Duly Certified and Authorized this 12" Day of April 2002. Sim s i st Trust Co an , N.A. B: nda L. Dean, Q rporate Trust Officer rr 1 CITY OF FAYETTEVILLE, ARKANSAS Sales and Use Tax (Wastewater Treatment Plant Project) Series 2002 SCHEDULE OF EVENTS May 10, 2002 A ril 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Stephens Inc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 i 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 2002 Date Event Responsible Parties April 10 Obtain Most Recent Sales Tax Collections Stephens April 26 Prepare and distribute first draft of financing documents Kutak Rock April 30 Financing Presented to City Council Agenda Session City / Stephens May 7 Bond Ordinance approved by City Council City / Kutak Rock / Stephens May 10 Publish Bond Ordinance City/ Kutak Rock May 13 Comments due on financing documents All Parties May 17 Blacklined financing documents distributed Kutak Rock May 20 Comments due on blacklined financing documents All Parties May 21 Submit Financing Documents to Rating Agency / Insurance Stephens June 3 Obtain Rating Stephens June 5 Final Preliminary Official Statement to the printer Kutak Rock / Stephens June 6 Distribute POS to Investors Stephens Stephens Inc. June 12 Pre -pricing meeting with the City Stephens June 13 Offer bonds Stephens June 14 Commit to underwrite Stephens June 17 Final draft of the Official Statement distributed Kutak Rock June 17 City Executes BPA City / Stephens June 19 Comments due on Official Statement All Parties June 20 Print final Official Statements Kutak Rock / Stephens June 27 Closing of issue All Parties Stephens Inc. City of Fayetteville Sales & Use Tax Bonds Series 2002 Distribution List 'j1m1ra! nil Mayor Dan Coody 479-575-8330 479-575-8257 Mayor of the City of Fayetteville City of Fayetteville 113 W Mountain Fayetteville, AR 72701 Email: mayor@ci.fayetteville.ar.us Ted H. Webber 479-575-8330 479-575-8257 Administrative Services Director City of Fayetteville 113 W Mountain Fayetteville, AR 72701 Email: twebber@ci.faetteville.ar.us Steve Davis 479-575-8296 479-575-8225 Budget Manager City of Fayetteville 113 W Mountain Fayetteville, AR 72701 Email: sdavis@ci.fayetteville.ar.us Kit Williams 479-575-8313 479-575-8315 City Attorney City of Fayetteville 113 W Mountain Fayetteville, AR 72701 Email: kwilliams ci.fa etteviIle.ar.us Marsha Farthing 479-575-8288 479-575-8273 Accounting Manager City of Fayetteville 113 W. Mountain Fayetteville, AR 72701 Email: mfarthin ci.fa etteville.ar.us Nancy Smith 479-575-8261 479-575-8273 .Internal Auditor City of Fayetteville 113 W. Mountain Fayetteville, AR 72701 Email: nsmith@ci.fayetteville.ar.us Stephens Inc. rEf Glenda L. Dean 870-541-1424 870-541-1418 Corporate Trust Officer 800-442-0888 Simmons First Trust Company, N.A. Ext. 1424 501 Main Pine Bluff, AR 71601 Email: glenda.deansimmonsfirst.com Gordon Wilbourn 501-975-3101 501-975-3001 Kutak Rock LLP 425 W Capitol Ave Suite 1100 Little Rock, AR 72201-3409 Email: gordon.wilboumkuta1crock.com Dennis Hunt 479-718-7400 479-718-7490 Stephens Inc. 3425 North Futrall, Suite 201 Fayetteville, AR 72703 Email: dhunt ste hens.com c Arkansas 'AN 07 2002 Soil and cWater Conservation Commission 101 EAST CAPITOL J. Randy Young, P.E. SUITE 350 Executive Director LITTLE ROCK, ARKANSAS 72201 11 I ►/ I :&'i1i1 IiIkuI TO: All Federal Revolving Loan Fund Participants FROM: �'6arla Brooks, Financial Programs Manager DATE: January 3, 2002 SUBJECT: Cut-off Date for Submittal of Monthly Disbursement Requests PHONE 501.682-1611 FAX 501.682-3991 The Water Resources Development Division coordinates with the Arkansas Development Finance Authority so that cities receive disbursements in a timely manner. Toward this end, disbursement requests must be submitted to the Division office for processing by the close of business on the fourth business day prior to the end of each month. Disbursement requests not received at the Division office by this deadline will not be processed and paid until the following month. For your convenience, and to avoid confusion, I have outlined the deadlines for disbursement request submittals in 2002: Monday, January 28 Monday, February 25 Tuesday, March 26 Thursday, April 25 Monday, May 27 Tuesday, June 25 *Special holiday schedule Friday, July 26 Tuesday, August 27 Wednesday, September 25 Monday, October 28 Friday, November 22* Friday, December 20* Checks should be received by the borrowers within the first 10 business days of the month. Our goal is to provide the best possible service to our borrowers,, and we appreciate your cooperation with our disbursement policy. An Equal Opportunity Employer FAYETTEVILLE THE CITY OF FAYETTEVILLE, ARKANSAS RFri IVED MAY 162002 tL,L i U. vEPT. DEPARTMENTAL CORRESPONDENCE To: Ted Webber, Administrative Services From: Heather Woodruff, City Clerk Date: May 8, 2002 ,Please find attached a copy of Ordinance No. 4389-02 authorizing the issuance and sale of Sales and Use Tax Capital Improvement Bonds for the Wastewater System Improvement Project. The original will be microfilmed and filed with the City Clerk. cc: Nancy Smith, Internal Audit /9 54%1 /fccoe—. (1 S7ETi- ,uae7 _, ORDINANCE NO. 4389 AN ORDINANCE AUTHORIZING THE ISSUANCE AND SALE OF NOT TO EXCEED $25,000,000 OF SALES AND USE TAX CAPITAL IMPROVEMENT BONDS, SERIES 2002, BY THE CITY OF FAYETTEVILLE, ARKANSAS FOR THE PURPOSE OF FINANCING A PORTION OF THE COST OF IMPROVEMENTS TO THE CITY'S WASTEWATER TREATMENT, SEWERAGE AND RELATED FACILITIES; AUTHORIZING THE EXECUTION AND DELIVERY OF A TRUST INDENTURE PURSUANT TO WHICH THE BONDS WILL BE ISSUED AND SECURED; AUTHORIZING THE EXECUTION AND DELIVERY OF AN OFFICIAL STATEMENT PURSUANT TO WHICH THE BONDS WILL BE OFFERED; AUTHORIZING THE EXECUTION AND DELIVERY OF A BOND PURCHASE AGREEMENT PROVIDING FOR THE SALE OF THE BONDS; AUTHORIZING THE EXECUTION AND DELIVERY OF A CONTINUING DISCLOSURE AGREEMENT; AND PRESCRIBING OTHER MATTERS RELATING THERETO. WHEREAS, the City Council of the City of Fayetteville, Arkansas (the "City") has determined that there is a great need for a source of revenue to finance the costs of acquisition, construction, reconstruction, extension, improving and equipping of wastewater treatment plants, sewerage and related facilities (the "Project"); and WHEREAS, the City is authorized and empowered under the provisions of the Constitution and laws of the State of Arkansas, including particularly Amendment 62 to the Constitution of the State of Arkansas ("Amendment 62") and Arkansas Code Annotated (1998 Repl. & 2001 Supp.) Sections 14-164-301 et seq. (as from time to time amended, the "Local Government Bond Act"), to issue and sell its capital improvement bonds to finance the costs of various capital improvements such as those comprising the Project, which capital improvement bonds may be secured by and payable from the receipts of the special city-wide sales and use tax authorized by the Local Government Bond Act; and WHEREAS, pursuant to the provisions of Ordinance No. 4327 of the City, adopted and approved on August 7, 2001 (the "Election Ordinance"), there was submitted to the qualified electors of the City the question of the issuance of not to exceed $125,000,000 in aggregate principal amount of capital improvement bonds pursuant to Amendment 62 and the Local Government Bond Act to finance the Project improvements described in the Election Ordinance, said bonds to be secured by a pledge of and lien upon all of the receipts of a special city-wide sales and use tax levied at the rate of three-quarters of one percent (0.75%) pursuant to the Local Government Bond Act (the "Sales and Use Tax"); and WHEREAS, at a special election held November 6, 2001, a majority of the qualified electors of the City voting on the question approved the issuance of said capital improvement bonds (and the corresponding levy of the Sales and Use Tax and the pledge of Sales and Use Tax receipts to the payment of the capital improvement bonds); and 10-34907.02 Ord, 4389 WHEREAS, as authorized under the provisions of Amendment 62 and the Local Government Bond Act and as approved by the qualified electors of the City, the City has now determined to issue and sell its Sales and Use Tax Capital Improvement Bonds, Series 2002, in the principal amount of not to exceed $25,000,000 (the `Bonds"), in order to provide for the funding of a portion of the Project; and WHEREAS, as authorized by the provisions of the Election Ordinance, the City has previously made arrangements for the sale of the Bonds to Stephens Inc., Little Rock, Arkansas (the "Underwriter"), pursuant to the terms of a Bond Purchase Agreement between the City and the Underwriter (the "Bond Purchase Agreement") in substantially the form presented to the City Council before this meeting; NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Fayetteville, Arkansas that: Section 1. Under the authority of the Constitution and laws of the State of Arkansas, including particularly Amendment 62 to the Constitution of the State of Arkansas and the Local Government Bond Act, there is hereby authorized the issuance of bonds of the City to be designated as "Sales and Use Tax Capital Improvement Bonds, Series 2002" (the "Bonds"). The Bonds shall be issued in the original aggregate principal amount of not to exceed Twenty -Five Million Dollars ($25,000,000), shall mature not later than December 31, 2009, and shall bear interest at the rates specified in the Bond Purchase Agreement. The average yield on the Bonds as a whole shall not exceed 4.00% per annum, and the yield on no single Bond shall exceed 4.00%. The proceeds of the Bonds will be utilized to finance a portion of the cost of the acquisition, construction, reconstruction, extension, improving and equipping of the Project, to establish a debt service reserve for the Bonds or purchase a surety bond for reserve purposes, to pay a premium for bond insurance, if deemed economically beneficial, and to pay printing, underwriting, legal and other expenses incidental to the issuance of the Bonds. The Bonds shall be issued in the forms and denominations, shall be dated, shall be numbered, shall mature, shall be subject to redemption prior to maturity, and shall contain such other terms, covenants and conditions, all as set forth in the Trust Indenture submitted at this meeting. The Mayor is hereby authorized and directed to execute and deliver the Bonds in one or more series, each series to be in substantially the form thereof contained in the Trust Indenture submitted to this meeting, and the City Clerk is hereby authorized and directed to execute and deliver the Bonds and to affix the seal of the City thereto, and the Mayor and City Clerk are hereby authorized and directed to cause the Bonds to be accepted and authenticated by the Trustee. The Mayor is hereby authorized to confer with the Trustee, the Underwriter and Kutak Rock LLP, Little Rock, Arkansas ("Bond Counsel"), in order to complete the Bonds in substantially the form contained in the Trust Indenture submitted at this meeting, with such changes as shall be approved by such persons executing the Bonds, their execution to constitute conclusive evidence of such approval. Section 2. In order to pay the principal of and interest on the Bonds as they mature or are called for redemption prior to maturity, there is hereby pledged all of the receipts of the Sales and Use Tax levied by the Election Ordinance. The levy and collection of the Sales and Use .Tax shall continue until such time as the Bonds are no longer outstanding or sufficient funds are on 10-34907.02 2 Ord. 4389 deposit with the Trustee under the Trust Indenture to redeem the Bonds in full. The City covenants and agrees that all receipts from the Sales and Use Tax will be accounted for separately as special funds on the books of the City, and receipts of said Sales and Use Tax will be deposited and will be used solely as provided in the Trust Indenture. Section 3. To prescribe the terms and conditions upon which the 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 "Trust Indenture"), by and between the City and Simmons First Trust Company, N.A., Pine Bluff, Arkansas (the "Trustee"), and the City Clerk is hereby authorized and directed to execute and acknowledge the Trust Indenture and to affix the seal of the City thereto, and the Mayor and the City Clerk are hereby authorized and directed to cause the Trust Indenture to be accepted, executed and acknowledged by the Trustee. The Trust Indenture is hereby approved in substantially the form submitted at this meeting, including, without limitation, the provisions thereof pertaining to the pledge of Sales and Use Tax receipts and the terms of the Bonds. The Mayor is hereby authorized to confer with the Trustee, the Underwriter and Bond Counsel in order to complete the Trust Indenture in substantially the form submitted at this meeting, with such changes as shall be approved by such persons executing the Trust Indenture, their execution to constitute conclusive evidence of such approval. (Advice is given that a copy of the Trust Indenture in substantially the form authorized to be executed is on file with the City Clerk and is available for inspection by any interested person.) Section 4. There is hereby authorized and approved a Preliminary Official Statement of the City, including the cover page and appendices attached thereto, relating to the Bonds. The Preliminary Official Statement is hereby "deemed final" by the City within the meaning of U.S. Securities and Exchange Commission Rule 15c2-12. The distribution of the Preliminary Official Statement is hereby approved. The Preliminary Official Statement, as amended to conform to the terms of the Bond Purchase Agreement, including Exhibit A thereto, and with such other changes and amendments as are mutually agreed to by the City and the Underwriter, is herein referred to as the "Official Statement," and the Mayor is hereby authorized to execute the Official Statement for and on behalf of the City. The Official Statement is hereby approved in substantially the form of the Preliminary Official Statement submitted at this meeting, and the Mayor is hereby authorized to confer with the Trustee, the Underwriter and Bond Counsel in order to complete the Official Statement in substantially the form of the Preliminary Official Statement submitted at this meeting, with such changes as shall be approved by such persons, the Mayor's execution to constitute conclusive evidence of such approval. (Advice is given that a copy of the Preliminary Official Statement is on file with the City Clerk and is available for inspection by any interested person.) Section 5. In order to prescribe the terms and conditions upon which the Bonds are to be sold to the Underwriter, the Mayor is hereby authorized and directed to execute a Bond Purchase Agreement on behalf of the City, to be dated as of the date of its execution (the "Bond Purchase Agreement"), by and between the City and the Underwriter, and the Bond Purchase Agreement is hereby approved in substantially the form submitted at this meeting, and the Mayor 10-34907.02 3 Ord. 4389 •..4 is hereby authorized to confer with the Underwriter and Bond Counsel in order to complete the Bond Purchase Agreement in substantially the form submitted at this meeting, with such changes as shall be approved by such persons executing the Bond Purchase Agreement, their execution to constitute conclusive evidence of such approval. (Advice is given that a copy of the Bond Purchase Agreement in substantially the form authorized to be executed is on file with the City Clerk and is available for inspection by any interested person.) Section 6. In order to provide for continuing disclosure of certain financial and operating information with respect to the Sales and Use Tax and the City in compliance with the provisions of Rule 15c2-12 of the U. S. Securities and Exchange Commission, the Mayor is hereby authorized and directed to execute a Continuing Disclosure Agreement to be dated as of the date of its execution (the "Continuing Disclosure Agreement"), by and between the City and the Trustee, and the Mayor is hereby authorized and directed to cause the Continuing Disclosure Agreement to be executed by the Trustee. The Continuing Disclosure Agreement is hereby approved in substantially the form submitted at this meeting, and the Mayor is hereby authorized to confer with the Trustee, the Underwriter and Bond Counsel in order to complete the Continuing Disclosure Agreement in substantially the form submitted at this meeting, with such changes as shall be approved by such persons executing the Continuing Disclosure Agreement, their execution to constitute conclusive evidence of such approval. (Advice is given that a copy of the Continuing Disclosure Agreement in substantially the form authorized to be executed is on file with the City Clerk and is available for inspection by any interested person.) Section 7. In order to secure lower interest rates on the Bonds, the Underwriter has proposed that the City consider the purchase of a policy of bond insurance with a portion of the proceeds of the Bonds, which policy would guarantee the payment of the principal of and interest on the Bonds when due. If deemed economically advantageous by the Mayor, upon the advice of the Underwriter, the Mayor is hereby authorized to execute an insurance commitment and to do any and all things necessary to accomplish the delivery of a bond insurance policy with respect to the Bonds. Section 8. The Mayor and City Clerk, for and on behalf of the City, are hereby authorized and directed to do any and all things necessary to effect the issuance, sale, execution and delivery of the Bonds and to effect the execution and delivery of the Trust Indenture, the Bond Purchase Agreement, the Official Statement, the Continuing Disclosure Agreement and a Tax Regulatory Agreement relating to the tax exemption of interest on the Bonds, and to perform all of the obligations of the City under and pursuant thereto. The Mayor and the City Clerk are 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 9. As previously provided in the Election Ordinance, Kutak Rock LLP, Little Rock, Arkansas, is hereby confirmed as Bond Counsel on behalf of the City in connection with the issuance and sale of the Bonds. 10-74907.02 4 .Ord. 4389 Section 10. The provisions of this Ordinance are hereby declared to be severable, and if any section, phrase or provision shall for any reason be declared to be illegal or invalid, such declaration shall not affect the validity of the remainder of the sections, phrases or provisions of this Ordinance. Section 11. All ordinances, resolutions and parts thereof in conflict herewith are hereby repealed to the extent of such conflict. PASSED and APPROVED this the 7th day of May, 2002. ATTEST: By: ;e�ather Woodruff, City Clerk 10-34907.02 FAYETTEVILLE THE CITY OF FAYETTEVILLE, ARKANSAS To: Mayor and City Council From: Ted H. Webber, Director of Administrative Date: April 19, 2002 Subject: Sales and Use Tax Bond Ordinance for the Wastewater System Improvements Project Background On November 6, 2001, voters of the City of Fayetteville approved a Sales and Use Tax to repay up to $125 million of sales tax bonds whose proceeds will, in turn, be used pay for the planning and construction of wastewater system improvements. The Arkansas Soil and Water Conservation Commission has earmarked up to $100 million for a State Revolving Fund (SRF) loan, at an interest rate of 3%, to partially finance the cost of these. improvements. On the SRF application, the City requested funding for the entire project cost. However, the State agency did not award the entire requested amount and it cannot guarantee that future SRF funding will be available for the project cost not already set aside. This requires the City to consider the use of non-SRF financing for the remaining cost of the project. The City's Financial Advisor, Stephens, Inc., has recommended that the City at this time issue additional bonds on the open market to cover this remaining cost and provide the City with the greatest flexibility to finance this project. The recommended approach is to issue $25 million in short term sales tax bonds and subsequently downsize the $100 million SRF loan as dictated by actual project costs. This short term approach is at very competitive interest rates and results in less overall interest costs for the project. Why formulate a bond issue at this time? Amendment 62 to the Arkansas Constitution places a limit on the amount of interest that the City can pay on bonds that it issues. For any sales tax bonds issued to finance the costs of the Wastewater System Improvement. Project, the constitution places a limit on bond interest paid, which is a maximum of 2% above the Federal Discount Rate on the date of the election when the tax collections were authorized by the voters. The election for the Water and Sewer Sales and Use Tax Bonds was November 6, 2001 and the Federal Discount Rate on that day was 2%. This means that, per the Arkansas Constitution, any bond issue that the City sells pursuant to the election on November 8, 2001, must have a coupon rate less than the mandated ceiling of 4% Page 1 of 2 Due to the uncertainties of the financial markets and their volatility, the City's ability to place these bonds within the constraints of Amendment 62 of the State Constitution may become severely limited. When bond rates rise, under these constitutional usury limits, the City is very limited in how much capital it can raise beyond the SRF loan proceeds which may be needed for the remaining unfunded Wastewater Systems Improvement Project cost. Therefore, the City has a real need to pursue a bond issue at this time. If the City does not pursue this in the immediate. future, depending on the speed with which the bond rates rise, then the City may be prohibited forever from selling bonds that can be repaid by the Sales and Use Tax proceeds. The project's implementation plan, as being developed by the Public Works Department, anticipates that significant expenditures will be required in the near term as the design, segmented construction and priority items of the project are completed. The $100 million SRF loan proceeds are not available to the City until the loan is closed, following the formal approval of the project's design and the bidding of the resultant contracts. Accordingly, the sale of this portion of the bonds now will provide interim funding for these required activities and will also be used to pay those costs that are not allowable under the SRF rules (these costs are generally for real estate easements and right-of-way acquisitions). Recommendation: On May 7, 2002, we recommend that the City Council pass the attached Bond Ordinance which will ensure that this bond issue can be sold expeditiously, thereby mitigating the negative impact of any rise in the bond rates that may be announced by the Federal Reserve Board in the future. The Citys best financial interests are served by getting this bond issue to the market without delay. Page 2 of 2 STAFF REVIEW FORM X AGENDA REQUEST t CONTRACT REVIEW GRANT REVIEW a For the Fayetteville City Council meeting of May 7, 2002 FROM: Ted Webber Admin Admin Name Division Department ACTION REQUIRED: An Ordinance authorizing the issuance and sale of up to $25 million of Sales and Use Tax capital Improvement Bonds for the Wastewater System Improvement Project. COST TO NA Cost of this Request Category/Project Budget Account Number Funds Used To Date Category/Project Name Program Name Project Number Remaining Balance Fund BUDGET REVIEW: - Budgeted Item _ Budget Adjustment Attached 22 -c1 CONTRACT/GRANT/LEASE REVIEW: GRANTING AGENCY: e ADA Coordinator Date '//23/6._ 23/0) - ate In ernal itor Date Q a3 Ibz- Purchasing Officer Date _ Grant Officer - Date STAFF RECOMMENDATION: Division Head Date Cross Reference New Item: Yes No Date 71 Prev Ord/Res 0: Date Orig Contract Date: STAFF REVIEW FORM Page 2 Descripti Comments: Budget Coordinator Accounting Manager City Attorney Purchasing Officer ADA Coordinator Internal Auditor Grants Offcier Meeting Reference Comments: Reference Comments: Reference Comments: Reference Comments: Reference Comments: Reference Comments: Reference Comments: