HomeMy WebLinkAboutOrdinance 4389 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 seg. (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
• 0 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
I0-34907.02 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
• . 1 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`s day of May, 2002.
APPROVED:
By:
DA COODY, Mayor
ATT!
cuff, City Clerk
` itis. i
10-34907.02 5
0 0
NAME OF FILE: Ordinance No. 4389
CROSS REFERENCE:
05/07/02 Ordinance No. 4389
04/19/02 Memo to Mayor and City Council from Ted Webber, Director of Admin.
Services, regarding the Sales and Use Tax Bond Ordinance for the
Wastewater System Improvements Project
05/07/02 Staff Review Form
05/08/02 Memo to Ted Webber, Administrative Services, from Heather Woodruff,
City Clerk
05/18/02 Statement of Legal Advertising from Arkansas Democrat Gazette
NOTES :
FAYETTEVILLE
THE CITY OF FAYETTEVILLE, ARKANSAS
ADMINISTRATIVE, SERVICES DEPARTMENTAL CORRESPONDENCE
To: Mayor and City Council ,
From : Ted H. Webber, Director of Administrative Servic�J� u Jglt' �,
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 foreverfrom 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 meeting of May 7 , 2002
e
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 CITY :
NA
Cost of this Request Category/ Project Budget Category/Project Name
Account Number Funds Used To Date Program Name
Project Number Remaining Balance Fund
BUDGET REVIEW : Budgeted Item Budget Adjustment Attached
Bjdq`ee Manager Administrative Services Director
CONTRACT/GRANT/LEASE REVIEW : GRANTING AGENCY :
Accounting �Mannaag-erg D to ADA Coordinator _ _ Date
�y/G✓�.�� 2s oZ 2310Y
ty At rney ate Internalitor Date
49
4
a3 1d2--
Purchasing Officer Date Grant Officer Date
STAFF RECOMMENDATION :
Division Head Date Cross Reference
New Item : Yee No
Depar ent ' r for Date
L5�071� Prev Ord/ Res # :
Adm ' $VCS ector Date
Orig Contract Date :
Mayor Date
• STAFF REVIEW FORM • Page 2
Description Meeting Date
Comments :
Budget Coordinator Reference Comments :
Accounting Manager Reference Comments :
City Attorney Reference Comments :
Purchasing Officer Reference Comments :
ADA Coordinator Reference Comments :
Internal Auditor Reference Comments :
Grants Offcier Reference Comments :
• �a � 53 S'. _ mu
fk
i
o'- SIM
yaQz j.
fS
� ' U7
9
u In
0 . LLg g ?0�
Ln
In
v g1 =o za N
Sill
8 'c3
P1'3��
a6 _ J ofqj �+
set
as
c rg
g a om a s
v El
A#{{ R m r
14
oY ZFO Yf• - Y ,gPY 8
mg
g RIK
t - p€ > ry m >. •• iy � y] }ais ti`a�._i� �� t C:[' ZIP
'gSi
o9. - am�'.� b .L"i'4gJj . g
:p�4 -
� N
e n z
3'. m e To a nId w c T ..
° � 333y D
M CJ
V M
gg
a m m.
9 /y
rt Iv
S• g - Iril- -Z D o r
i G a
Lo
x D 0
F 9
ru I
p " N- NO 10umI
cr
In f. v
N l ' 0 02
N
ru
v II
5 g/
@@flgg �? gd' d' a
tis '� ?<k :3 ❑ '`�. e$o
d' oV' we
gg sB m m s 33E]w Ll
. o
00
Eli fi- TO
aq g 333 - L o
fR
°ak^ ayn3
54
a Sir
'39VN]°d 3N1 01 9NIRI44V 380438 Ado] SINl NIV138 UNV 118d ��
0
O
N
J
a
w
J
NP
paw
Now
O
0
F
H
CD
O4
r•
0
0
C,
O
0
M
CD
0
O
rt
Y
N
0
'rJ
OO
J
U
-
N
O
Li'
H
V
T V
a
°
I
r
a
3>
2 to
dm
0 d_
y
b
a
m
u
o3'
1
nx\_
y
W
D
9
rt
w
rd
1
7
O
m
N
N
a
L_
r.f
N
s
-
'I
£
r
O
0-
-'
O
,
v
nmCD
n
M„
a
rn
<
u
^
'c
r
r
m
a
V
m
O
CD
41 W
N
O
.A
ru
ru
@ H Q g
aa232., $r �a 8c �— ❑II ❑ _ r❑ oa
R p ti` 1O i�"9 d9 n 66 % inp yp% e,
_i N [I a $i V C e In In
� ty 3 Ym f] JC JI
C.A' 'N =3 cue` zsi;¢' v
m { y .- �'- n m 's m as g3 .4w o
a- ❑ �
q�• ❑ �mm ' o ' N
a m 11, g_ w _ a �a m m
3i6 i S Y O0 yy^^ n a arm❑ 2 a
Re a' V Z9 e. C m m •
��JJ� V A . flnmG 6 ❑T W
y� N I e i g> $ ❑ Zq
Si e
p n 3( •i C sea.ma' 0 €o Tj FY�T
VE: R fl 3 e 9S€g pa
Q a : g3 8 c fLin 2 a
jj m ❑
�O = ■� '_ 3m z OmN
O ''
•y
o Can
I
t♦ �'s I ❑ g ' e m D
❑ mElo
I#J JI 'C
C'S
SOS033H HOOA UO3 MOD Sill! NIV13H
UR1
ZS� �irbili ahr) 832566282099 0Nm 0215 t = { 'r
Tess
nom I\W.,la.,ae,n„ ook
sccountNerEe
Date 06/12/02 Senders Ferber 1049-2012-8
Heather Woodruff
senders
Name City Clerk Phone C 4L95.75=&323—
ITY OF FAYETTEVILLE
113 W MOUNTAIN ST
AYETTEVILLE
Your Internal Billing Reference
Flu lemnane+wa ed[nrmrxe.
To John H. Theis
neciolems
Name Ciammi cajaner of Phone ( I
AR nn 72701
1-a- u -a • a.a - -ee an a •a
Address 7th and Wolf Ledbetter Building
To'191d"nlnFad[amnpnf.abins We[e:nad . PoNana Po. aPeoe.
Room 2
Cm Little Rock State AR zip 72201
BY using dv Arbil Vau agree x -e service cad LOM :r :SS beck of d:ia Airbil
and thou current Samc a G.xe, including tomb -a: k:M o u tiabt ry.
Questions? Visit our Web site at fedex.com
or call 1.800.Go.FedEx"a SODAC3. R.
Ha txpress rackageaemce Paekagerupto 19)1/is
oaMm cm fl nwa[ Wrnrnig lull.
El FedEx P^.ority Overnight XX FedEY Standar-.]vemight r FedEx first Oversight
Nrneucan vr.y .e.::u[r..l I1r-co- Es:l Mn yyyn
d*tyu usnb[a ie
❑ F ddE 20ay edE�aresss Saver ❑ vFWEx Fxda Hours
_J •_aelvCnw
F.tb M*CI l FW}\Ym�ln n'.0as r. Hrm:eY, b9Ye]h'we
4b Express Freight Service Packagesoyerl50/es
O.y [v:e@a[ may p arm pl:[ »la
❑ FedEx Cay Freight' — FedEx 1Dav Fre:cat ❑ FedEx 3Day Freight
Nee bust r —:a[un hm:ea[n ale ymnar on
5
Packaging
'dmm:rOrelnlnnPm
ya
FedEx Emelape
FedEx Pak'
❑ Other Pkg.
%Ek
rIt
—.Ma FgFaenfeaF+
P"Im F,CE,1
Ye Pr. an FKea _...T Pak
r.. naen®nnµp
6
Special Handling
-
.., .
SA11JtAYDeGey _
HOW Weekday
HOLD Sannday
❑
:.1.': . —
at FedEx Locaov.
❑ atFedExLocaocn
UnitD '-'^Mew
-
I. .
ree4 S..:wnmwn
rid F.- array
fa[fa vmeylla.igvw
Oon thS aipmemrndaiedega agmeer
froeaIDaybrtlni[ebe
}[}[I No Yes _ Yes fl Dry Ice
y _arnr rean _9m.rdw.leor py[.aunlaa r_ae
slm.•roxwrm: u'eNM
I❑ Cargo Aircraft Only
FArIMY]1M1
7 Payment 811/%
)Q Sender ❑ Recipient Third Par,. ❑ Credit Card [JCastVCheck
attxo.»rm —
I rMb Sn
Taal PacY.ages TadiWeigM Taal Declared Valuer
1 S W
cur canine b homed to Ymunbss rte declare a mgnn .e be. See back for Lands FedEx Use Onh
8 Release Signature .sv:m[umnve:rNrvnmmnama*g=vl.a✓e
By egnN you autocueu to derverme resonantv.c,om .c mvg a apr:cure
0201466766 and agreeto ndetmyamnold is nanmeu tam any rer[zq clams.
Pb :117Nngn 115115511 C?Y-:S: .:rb r m Nlec a U s: 3BFE 11101
447
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, 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----------------------�al%im m,,, 559.00
Billing Ad .#: 74033.79
ac NOTARY ,e
N PUBL !C ig,
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
of
as shall
file with the Guy Clerk and is avaaable
for inspection by any interested
SeSection 5. b order to prescribe the
terms and conditions upon which the
Bonds are to be sold to the
Underwriter, the Mayor is hereby au-
thorized and directed to execute a
Bond Purchase Agreement on behalf
of the City, to be dated as of the date
of its execution (the 4Bond 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 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
order to complete the Continuing
Disclosure Agreement in substantially
the form submitted at this meeting,
with such changes as shall be
Section 7.In order to secure we
interest rates on the Bonds, thi
Underwriter has proposed that tN
City consider dre purWse of a pohc
of band naumnxi wdh a pomon of th
proceeds of the Bonds, which polm
would guarantee the payment of th'
principal of and v serest on the Bond
when due. If deemed economicalt
bturance cormnament end to Co an.
and all things necessary ti
accomolish the delivery of a bons
PASSED and APPROVED this the
7M day of May, 2002.
APPROVED:
Bv DAN GOODY, Mayor
At1tBT
eatherWoodMf, City Cork
FAYETTEVItLE
THE CITY OF FAYETTEVILLE, ARKANSAS
DEPARTMENTAL CORRESPONDENC
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 Auditor
Emma Badgley, Accounting Division
Marsha Farthing, Accounting Division
Stephen Davis, Budget & Research
010 03 City of Fayetteville
Update ndex Maintenance
Document Ite Action
5/23/2002
8:26:48
Reference Date Ref. Taken Brief Description
ORD 5072002 4389 USE TAX CAPITAL IMPROVEMENTS BONDS
Enter Keywords........: ORD. 4389
File Reference #......:
Security Class........:
Expiration Date.......:
Date for cont/Referred:
Name Referred to.......
SALE
$25.000.000
USE TAX
CAPITAL IMPROVEMENTS BONDS
BONDS
SERIES 2002
WASTEWATER TREATMENT SEWERAGE
MICROFILM
Retention Type:
**** Active ****
Cmdl-Return
Cmd8-Retention
Cmd4-Delete Cmd3-End
Press
'ENTER' to Continue
cmd5-Abstract
Yes No
(c) 1986-1992
Munimetrix
Systems Corp.
•
KUTAK ROCK LLP ATLANTA
CHICAGO
SUITE 1100 DENVER
425 WEST CAPITOL AVENUE KANSAS CITY
LINCOLN
LITTLE ROCK, ARKANSAS 72201-3409 NEWPORT REACH
501-975-3000 OKLAHOMA CITY
OMAHA
FACSIMILE 501-975-3001 PASADENA
www.kutakrock.com RICHMOND
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:
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
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
www.kutakrock.com
RICHMOND
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");
R3YBNL71
•
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,
KWZK �LLe
10-37091.01
Mica
$25,000,000
CITY OF FAYETTEVILLE, 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
10-36561.01
0
$25,000,000
CITY OF FAYETTEVILLE, ARKANSAS
SALES AND USE TAX CAPITAL IMPROVEMENT BONDS
SERIES 2002
CLOSING INDEX
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 2
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
i
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
[ft
Continuing Disclosure Agreement dated June 20, 2002, by and
between the City and the Trustee 17
Copies of Bonds
It
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; I CD Rom)
U17
31
32
10-36561.01 4
•
$25,000,000
CITY OF FAYETTEVILLE, ARKANSAS
SALES AND USE TAX CAPITAL IMPROVEMENT BONDS
SERIES 2002
TRANSCRIPT OF PROCEEDINGS
CI
Dated as of June 1, 2002
Prepared By:
•
KUTAK ROCK LLP
425 West Capitol, Suite 1100
Little Rock, Arkansas 72201
10-36561.01
$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 2
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
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; I CD Rom)
•
30
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
By:
er Woodruff, City erk
(SEAL)
10-36605.01 2
<��RUG IS Pij 2
• ORDINANCE NO. 4327 C0
i'ie ¢ f'f,'p
it
t?
i
AN ORDINANCE CALLING AN ELECTION ON THE QUE3"1181V�OtE
ISSUANCE OF NOT TO EXCEED ONE HUNDRED TWENTY-P.Iy'Y
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
0 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.
•
• •• 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.
• 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:
p.
DAN COODY, Mayor
rr y _
• I CERTIFICATE OF RECORD
I
State of Arkansas l
City of Fayette 4 ,2
By: I, Heather Woodruff, City Clerk/Treasurer for the City
He er Woodruff, City Clerk of Fayetteville. do hereby certify that the
l XA��t_/ foregoing instrument is a true and correct copy
of the original ��-•
(S E A L) filed in my office on the ......day of
_____ nand and
sea his?wae • • ��-�'
earner woodruff. city clerk/rreasur
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
Woodruff, City" Clerk
rl
. 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.
I
• 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.
REMOVED 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.
RESOL UTION 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.
RESOLUTION 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 city providing 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 Libertine 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.
RESOL UTION 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 ('/,¢) 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.
Alderman 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 fluid 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 if he 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 oftown
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. In 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 Carrell 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.
iRZN 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 behalf of 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.
9
9
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 ofthe 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
current funding. She thought it was better to not mix it with this issue.
FAILED FROM LACK OFA MOTION.
Meeting adjourned at 8:45 p.m.
•
•
City Council Minutes
August 7, 2001
Page 19
Arkansas Democrat_��
r .` o I fie. Y'3!✓�
AItISIDAY I 101" PU13LICAI'ION
I du :;ulcnmly
swcar that I am Legal Clerk of the Arkansas
Democrat -Garotte New:;paper, printul and publi:,hul at l.u•.vcll,
Arlcau:cis ;uul that Drum my own licr.;unal Icnuwledl;e anti
referencc to the tiles of said publication the advcrtie;emenl of
• Wa:; in i lecl in the rcgul: r edition:; on
Publication Chu'e
— s
Puuchasc Order II __________________ -
RECEIVED
AUG 14 2001
CITY OF FAYETTEVILLE
CITY CLERK'S OFFICE
Subscribed and sworn to b ')rc me this
—tiny of ''001.
Notary Public
My commission expires d 3
OFFICIAL SEAL
• ' , ' CAROLYN C0AKLEY
t��,pp��bby�rr���qq,��cc�qa.s'als \ cnuc > Pa ycllcvillc Arkansas 72701 (501)571-6467
• asKiristdrTCbuhry'
..
08-14-01A10:20 RCVD
ORDINANCE NO. 4321
• AN 0151NANCE CAUJNG AN OECTIOA ON THE QUESTION OF THE ISSUANCE OF NOT TO , ONE HUNDRED 4awg -FM MIWON DOWERS (SI2S,000,00O) OF CAPITAL ItMENE BONDS BY THE CtTYT11RiHI*'"
PHRPOSE DF FINANCING ALL OR A PORTION OF THE COSTS OF THE ACQUISITION, CONSTRULaON, RECONSTRUCTION, EXTENDING, IMPROVING AND EQUIPPING OF WASfWATk ..1AIMENT PIAN15, SEWIIlAGE, MIND
REIAIm FACILITIES; LEVWNG A SPECIAL LOCAL SATES AND USE TAR AT THE RATE OF TBRET-QUARTERS OF ONE PERCENT (0.75%) WRHIN THE CITY TO BE PLEDfiFO 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'PRESCBIgfA�yly3s
PWI
OTHER MATTERS PERTAINING THERETO. ..,�„•i,:w:�,
WHEREAS, the City CouiW of the City of Fayetteville, Ashman recognizes and determines them h a prom and pressing nod a substan sally knomm to Ory's wmtmMer healmem cgPa„7 art `_^' ^ t
WHEREAS, if the citizens of Foyetev li pled to use a special citywide We lax to finance Ibis capital improvement, may million of dollars of financing expeme would be mid in aunpatson witfh„
this improvement by a large inmese in sewer rates for the customers of the Foyegevlle wastewater system; and
WHEREAS, the City Coundl of the City of Fayetteville, Atkanws has determined ilea (here Is a grant need for addilional soars of revenue to Resume capital Improvements to meet the need of
of the CHy; and .....,,,; doW
WHEREAS, Title 14, Chapter 164, Subchapter 3 of the kkmsas Code of 1987 Annotated (the Taal Government Band Act of 1985) wilbod es the Issumtte of capitol Improvement bands by ddafr1
bonds maybe seemed by the pledge of the reWph of l e special dtyeide sdes and use tax presrn'hd by the Lad Goverment Band Ad of 1985; and
WHEREAS, seM spedd dlywlde sale anduse tax Is tobe Ivied ad cagectd only m the MT 52,500 of each sinle hnodion; and
WHEREAS, an ex'sting diode Wes and use tax Is presenNy being IMd pursmm ro the Local Gov rn mend Bad Ad ai Me rote d One Persem (I%1, which levy expim an March 31, 2002; and`•er��� !
WHEREAS, if approvd by the eledon d Fayeitevige the Ctly Count of FoWwMe, Arkansas has dormbred ro knot m mold improvement hods n principal amasser ml ro exced OmH aidrd
Five Million Doflars ($125,000,000) for the purpose of flnandng all a e portion of the casts of the acquisition, construction, reconstruction, extSng, Improving, and equipping of wastewater healmeai plants; tewmttpe''
and related facilities, whW Bonds are to be severed by the pledge of all of the receipts of a threrquarers of oat percent (0.75%) special diywfde sole and use tax, as authorized by the Local Govemmenf k"b.44 pity,.
WHEREAS, the purpose of dhs Ordinance is to tog a spdd election an the swarm of cite Bar ds by the City of Fayetteville, comb ro ddm the tornin *a a traamtde, . ,' ,,,.. ''1'11 Kin
NOV( THEREFORE, BE O ORDAINED byte CIry Coed of the Ory of Fayettevlh, Arkamac I
Saturn I. Thatuda Ihaouterily of IM Lad Wrerlhmem Bond Ad ad whjedro the ayprawl by be doctors of to thy d Fayenmme as prodded n SeMam 3 below, here B hrn4y, auErorixedlha.
banner of the Ory's mpitd nryrovement bombs n dse aggregate prncipal amount of not to aced One HundredTwenty-Fm MObonooms D(S125,000,000) (the to dsl forthe Impose d flnandip hA or a poll
to cats of acquldng conshuMg, recastnnfmg extending, Improving and equipping wastewater treatment plants, sewerage and reacted fal8da (the'hojett'I. If the bsuann of the ponds is approved by the ask*
of the City, the Bonds may thereafter be bored hi one or more series from time to time Inca aggregate principal amount not to exceed the principal amount approved by the City's dodos. lie byte, deUbrf
the City and Issued,.the Bands shall be second by a pledge of and a Gen upon all of the receipts of a threAyuaders of one percent (0.75%) Wei btywide sales and use tax (the Sales and Use Tax'),raouher a ]hp
Local Governments Bad Act.
Section 2. Thai under the authority of the local Government Bond Ad and subject to approval by the electors of the City as provided in Section 3 blow, there Is hereby levied the Soles and Use Tax at the
role of dwee-quaters of am percent (015%) an the (pons receipts from the We at retail within the Dry of all items which arew6(ed to the Arkamas Grass Receipts Ad of 1941,as amended (Arkansas (ale of 1981""
Anmtoted 826.52.101 es seq.l, arid an excise (or use) tax an the storage, use, dishhutllon or other consumption within the Op of tongue pound property Fathomed, leased a rented from m7 rodelaulilde the S
d Arkmms after the effedee date of the Sala and Use Tax for domain, use, dahibutian or odor consumption n the Cty ai the rote of tM1reequoden d ore percent (0.15%1 an the sale print of 0e"pro" 1y1ar'yhm to
case of leases a renah, a the lease a nomal price, Ile min of the tat tax to comspond to the rare of the We tax. The use tax pardon of she Sala comb Use Tax shoo be wiledd warding ro dro teimf d d� Arlfemn
• Compensating Tax Ad of 1949, as amended (kkansos (ode of 1987 Amatoed 626.53.101 at sea). The Sales and Use Tax shag be levied and collected only an the first $2,500 of each "single hmwcton (as defined
Session 9 hereof). The levy and collection of the Sales and On Tax shag commence an April I, 2002 and shall cease upon retirement of the Bends.
Section]. That there be, and there Is hereby called, a special election robe hold an Tuesday, November 6,1001, at which election (here shag be submitted to Its electors of the City the question of the
Issuanceof the Bonds. ly
Section 4. That thequestion shag be placed on the ballot for de special election n submntially the follSng farm:
There Is subuti to the qualified dedas of the thy of FoyenevWe, Arkansas, the question of the Issuance of capital Imprm l Imds in principal amaml not to exceed One Hundred Twenty -Eke Million Dabs „ �t
IS125,000,D001(16 2andsl pammil ro ide 14, OepM 164, Suhdepler 3 of the Arkaaa Code of 1987 Associated (de'Iad Garemmeru Bend Ad of 19851 fa to purpose d flnandng ail a a portion of the cad
of the acquidlion, mmudian, reconstruction, exlen&ng Improving and equipping of to Wosfwaier System Impraemem Pro(ec which encompasses bu0dap and equ1111 a a second wastewater hmmebl plant,
modifying extmdng and 'onprang the tnt Section system, recamud'en and Improving the current wastewater treatment plant, making Load and equipment purdimes, prancing comhattan end profession
sorbet, obtaining regulatory approvals and permits, and doing all other necessary things to naease and imprme the Dry of Fayemevgle's wastewater treatment capacity and related fadites. lithe Im ue of me Bondi
Is approved, the Bads shag be sec tired by a pledge of and hen upon all of the receipts of a special dtywide ides and use tax at to rate of duee•quarters of one percent (0.75%) hoed pursuant to the Lod Govermnem
Band Act (the Sales and Use Taxi. If the Issuance of the Bonds is approved, the levy and collection of the Sales and Use Tax shag comments anApril I, 2002 and shag cease upon retirement of the Bonds.
Vote ande question by plain an'1C in oat of Ile squaresfdLowing de question, either for a agolnst
FOR the Issuance of Bads in principal amount not to exceed One Hundred Twenty -Fie Million Dofars (S125,000,000) for the purpose of financing all ore portion of the mats of equhng constrict imurrmrall
extending, improving and equipping wastewater treatment plants, sewerage and other related Improvement ...............7 O
AGAINST the Some of Binds In principal mecum not to exceed One Hundred iwenry-fire Million Dooms [5125,000,0001 for the purpose of growing allot a portion of the rests of acquiring, carshudng recd smdna
extending, hnprovng and equipping wastewater treatment plants, sewerage and other related improvements ...............7 O
Section 5. That the election shag be held and conducted and the vote canvassed and the results declared under thlav Sin the matter low prodded for Menses municipal elections unless Whorwhe
provided In the Local Government Band Ad, and only qualified voters of the City shall have the right to vote at the election. The Qty Clerk Is hereby dlreded to give notice of the special election by one advertisement in
the Northwest Arkansas Times, the pubrnatlon to be not less than ten (10) days prior to the dale of the election.
Section 6. Thal a copy of this Ordnance shall be Been to the Washington County Bared of Electron Cmmnhsnmrs so that the necessary election officials and supplies may be provided. A certified copy of
:Ms Orc hanve ad a map steady showng ire boudaries of the Gry shall also he provided to to Director of the Department of FInaae and Admnshatnn and ho the Treaurar of the State of Adimmm m won as pmc l
Section7. Thai the results of the special election shall be prodamed by the Maya, and his proclamation shall be putMsbd o e time in to Nadnnsl Mamas Times. The proclamation shall advise Thal
the results as prodainmed shag be cadaee udes otac ked n the Caam Cam of WasMngton County wihn ddrfy (30) days after the dated puMsadon of to prodanamn.
Section 8. Thai do Maya ad date CHy auk, far and an behalf of de Ory be, and they hereby me aderized and dmcted ro do mry and oil ddmtas naesay te cog and hold the spedd denim
providd and, if die levy of to Imance of die Bonds s apprmed by the devices, to muse the Saps and Use tat to be m1ectd n acardmrce with the La d Govemment Bad M, ad ro perform oil ails a •�•
naturenecessary totarry wed the authorityconferredby this Ordinance. *'•••"^4.'.T
Section 9. That, for purposes of the Sala and Use Tax, the term'single transaction" is defined according to the nature of the goods purchased as fellows: „p�y4t(
A When ten d more dower n wNch, upon which a by which any persona properly I% or maybe, transported a drawn, ncludng but not lmited te, no-load vdddes, o -load Jehk"�`t a1a
whether required to be licemed a not, aimp1anes, water vessels, motor vehicles, non -motorized vehicles and mobde pawn by 4partar"w wt
lames, are sold too a sells, east ndMduol'uai whetherof a sayfdea., .
treated as a single transaction for the purposes of the Sala and Use Tax;
B. Chagas far utl try servhes whaler are sobled to sire Sde and Use Tax, and which furnished an e furnished a continuous service bash, whiffler such services are paid for dally, weekly, monddy a '/, del
• computed n daily Increments, and each such doily dwrge Increment shag be considered to bea sngh mmation for the purposes of do Soles and Use Tox;
E For Was d Building materus and supplies ro comodows, holders a other perwm, a sinle tramaden, for the purposes of the Sales and Use Tent, slag be deemed ho be any s sale wlddl nfied�
an a single h vok retslpt or slatemen(an 4A m agare"ate soh (or un) vex Bgae has been reported and mmmed a de Skte of kkamas; •^ ',• i
D. When two or more Items of major household appliances, commercial appymnres, major equipment or mddnery are sold, each Individual mil shag be trend as a single transaction for lhwputapos_,4Iaf
the Sale and Use Tax; and
Liar groceries, drug items, dry goods and other tongue personal property and/or services not expressly covered in Ibis SecNan 9, a Angle transaction, for the purposes of the Sales and Use Tdx, shop be
deemed a be any single sale which s rdhssed an a single involve, renyl or statement, an which an aaigngore soles tax figure has been reportd and redmd ro de Shoed Arkansas. ' `'°'" ' qt
Section 10. Thus Ratak Rock LLP s hereby mourged as Bond Could and Stephen Inc. Ishereby engaged a Under inn or Fnandd Advsog as appropriate, with respect to the hsironie of the Bands. Ihl
fee and expemes oflard Coumd a d the Underwriter a Anandd Advsor shag be a cast of ssuance of the Bands to he paid with Bondproceeds, N allowed. is
Section 11. That oil ordinance and parts thereof in conflict hernith ore hereby repealed to the extent of such conmd.
PASSED AND APPROVED dash 7th day of Aup d, 2001.
y...•'-Wmmwc:glv>ttmw�.,+.a..,,,,,., PPROVED:
By. DAN COODY, Mayor
Gina Robem, DeputyChy Oerk
e
y
,
E Al)
CTIFICATE
s udadRned, (Try Oetk d th Coy of Fgoftt h, Arkwun, hereby cerBPros thus she foreRdnp s o true and purled copy of an Ordihenro adopted m a regular me dhry d de (By (ounA d the Gy d Foyemd6e, y
avers, held In Room 219 of the City Administration Bulldog at 6:30 p.m. on August 7, 2001.
TED: August B, 200'1
d Roberts, Deputy Dry Clerk
ray
I� �V.I1 ail
•
•
RECEIVED
OCT 19 2001
ACCTG. DEP1
AFFIDAVIT OF PUBLICATION
STATE OF ARKANSAS,
County of Wton
that I am
solemnly swear
,.... ," 'of The Morning News of Northwest
"CITYOFAYEI7EVILLE Arkansas, a daily newspaper having
,max = T,_ La,
NOTICE(PftA4 a general circulation in said county,
cayore,y4 ± bt SPECIAL ELECTION and do solemnly swear the said ad-
fJotiice-4ls hereby -,given^ that the City4of, : vertisement was published for
.-.it!eeti kansas, wiI hold a speclal,elec=
Novembert6j,2001 at wh�ch�there will consecutive
itte0to-the le�e"c[ors o he -City ihe4 ,
there of theESalestand Use Tax in;
�_ �� in said
.tlally the foliowing,(sr1y,`-"� ��r` -�' `+ x � r s �` •� newspaper, the s id publication ap-
each'rquestion by placing anJ(" m the:gearing:o-posite theaquestlon either "FOR" or
k"AGAINST5a a a .! day of Vt
'O�FOR�the.i�sua�dcekof°Bonds�njpnn4ipal,
-amount not4tonexeeed.OnefHundred::Twenty
is a \Ia6nn.nn lam /f17S5nOn�Ofln\ 7n }hatnlir i day of
day of
day of
is
nonas'aullwnwu`auuvC, ute lcvy��l;uleica� 10_p3 —O 1 A08 14 I N
and use tax:(0:75%) shalbcease automabcally.5
11
•
21
40
11, 41
11111
mom
mum
M
FAYETTEVILLE SPECIAL ELECTION BALLOT
INSTRUCTIONS TO VOTER
1.TOVOTEYOU MUST BLACKEN
THE OVAL ( ) COMPLETELY
NEXT TO YOUR CHOICE.
2.USE ONLY THE PENCIL PRO-
VIDED.
3. AFTER VOTING, DEPOSITTHE
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, moth -
tying, extending and Improving the
sewer collection system, reconstruc-
tion and improving the current waste-
water treatment plant, making land
and equipment purchases, procuring
construction and professional•ser-
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
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.
Q Ease 1981
I
PROCLAMATION DECLARING RESULTS OF ELECTION
C1
C i
•
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 Tide 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 regulatoryapprovals 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 Coo 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.
sy:
Heather Woodruff, City Clerk
CERTIFICATE OF RECORD City of Fayetteville, Arkansas
State of Arkansas
City of Fayettev;lle ss.
I, Heather Woodruff, City Clerk/Treasurer for the City
of Fayetteville, do hereby certify that the
foregoing instrume t is true and corre t y
of the original
e.
filedp my office o
fl/day of
seal this...d- r- Witn`" Mmyhand and
HJginer woodruff, city clerk/rreas�
ram
•
•
'4 M M
ry ,
0
UQ 7- d. 4) H h)pN �.
r1
,.,, lb
O
w to v v ° r• u, w
p
Fw Y Y w ' P w w' w �' p • UI O O. C O
0 J
O'
o;p' v' @
`�`,..�, p w w w w a
. :'I n
Q�l 0000
j M M M M
ro
_ ,-; nr---
U, (D
R 1 rr
O
m
N N N IJ O
p a0000
0 0
C M
_rsS�C1y'4�lvA
a
3
m
a
o W
S.
c
n -'
-
D
n
,D
O
O
Di
1
-.
Cr
1
N
tt
S
-
N
0
O
S
i1
v
it
-'<
CD
I I •I I I • c W ti
I o a
CD H N N '7
O N Y{ ry N aim V� J N
x o
CD I
-.
CD " p' C, �. a w W O aC N ''
G "1 CD W N (b w 0
J
Nw (_1., (1; —. N F'�. O. F
p J N
N •--' CD N :n -1 W .O CD x Y.
N N n w N w N r.
CD ID ID
(D
fl. •rJ Ctfl. N CI.
' i, H \ J
W Cn u, CD R
v b H
'b ' N H w
'b 'CS N _��i.I
CERTIFICATE OF WASHINGTON COUNTY BOARD OF
ELECTION COMMISSIONERS ASCERTAINI#9gn
AND DECLARING RESULTS OF SPECIAL SEWER BOND L CTION HELD
IN THE CITY OF FAYETTEVIY EU1 Oj�lu 9 n(1 9 95
NOVEMBER 6, 2001 h
STATE OF ARKANSAS )
COUNTY OF WASHINGTON )
We. the undersigned members of the Board of Election Commissioners of Washington County.
Arkansas, do hereby cenifc 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 votes as required by
law.
IN TESTIMONY WHEREOF, we have hereinto set our hands this 9th day of November. 2001.
OF ELECTION COMMISSIONERS
C fEiOATE OF RECORD Dank Williams. Member
State of Art - •3
City of Fmy: } ss.
I, Heather Woc... _. i, City Clerk/Treasurer for the City
of Fayetteville, do hereby certify that the
foregoing instrum tis true r. corre c
of the f":,,,1� p4//�'L �1��✓l2rULJiG✓
filed i to Office nth l day of
seal ' hand and
c. --���. RECEIVED
• nea[uer W03druff, city cierk/rreasur \ OIV 1 4 2001
CITY OF FAYETTEVILLE
CITY CLERK'S OFFICE
11-14-01 P03:1a 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
Trust Indenture
. Tax Regulatory Agreement
Date Other Party or Parties
June 1, 2002 Simmons First Trust Company, as
trustee (the "Trustee")
June 20, 2002 Trustee
10-36632.01
9 Document Date Other Party or Parties
Continuing Disclosure Agreement June 20, 2002 Trustee
i
i
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 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
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
• 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
$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: $770501.66
i
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
• • . 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: (7
DA GOODY, Mayor
ATT'BST! f f /�
C
C
CERTIFICATE OF RECORD
State of Arkansas
City of Fayetteville } SS.
I, Heather Woodruff, City Clerk/Treasurer for the City
of Fayetteville, do hereby certify that the
foregoing instrument is orrect copy
of the original _h
filed in my office on the
seal .;aday of Witness rnv hand and
aWer voodmr/, city aerk/rreasurer
10-34907.02
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.
RESOLUTION 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 ofbond 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 be an 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 of the 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.
CJ
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 -I 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 of an 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, carring 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 incure 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
• Arkansdf Democrat l azette
STATEMENT OF LEGAL ADVERTISING
REMIT TO:
CITY OF FAYETTEVILLE ARKANSAS DEMOCRAT -GAZETTE, INC.
113 W MOUNTAIN/PERSONNEL P.O. BOX 2221
FAYETTEVILLE AR 72701 LITTLE ROCK, AR 72203
ATTN: HEATHER
DATE : 05/18/02 INVOICE It: 3122 BILLING QUESTIONS CALL 378-3812
ACCT #: L5004205 P.O. #:
STATE OF ARKANSAS, ) -
COUNTY OF PULASKI, ss. AD COPY
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 ----------------------- -%„uunn,,, 559.00
Billing Ad #: 7403379 o`` N F. /{%.;
L
V • . -
- I .
Y
•
• •'w.nu
,� : PUBLIC,
„nuu,un..
05-22-02
RECEIVED
MAY 22 2002
CITY OF FAYErrEVILLE
CITY CLERK'S OFFICE
0:28 RCVD
s
C1
CERTIFICATE OF RECORD
State of Arkansas
City of Fayetteville } as.
I, Heather Woodruff, City Clerk/Treasurer for the City
of Fayetteville, do hereby certify that the
foregoing instrum t is a trye and car ect co
of the onal - �� .i1 B.!/..�
filed in my office on e - aq- day of
Z- Witness my hand and
seal isSOday of Late ,
Heather Woodruff, City Clerl(/T wer
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 $1,131.51
Official Statement 334.43
Underwriting Expenses
Stephens Inc.
3425 North Futrall Drive, Suite 201
Fayetteville, AR 72703
Total:
J
Reimbursement for Ordinance Publication Expenses
City of Fayetteville
113 West Mountain
Fayetteville, AR 72701
Attn: Administrative Services Director
$50,000.00
12,800.00
2,000.00
1,465.94
1,485.72
$67.751 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 $50M00.00
C1
06/18/02 TUE 13:16 FAX 5017187190
Standard & Poor's
A Divuvm n/'I heMpl; a Hil Caegmde
11' MR. DENNIS HUNT
STEPHENS INC.
3425 NORTH FUTRALL DRIVE STE 201
FAYETTEVILLE AR 72703
STEPHENS NW AR
Standard & Poor's Ratings Services
Federal l.D.; 13-1036995
SeMeea Provided To:
004
Invoice No.:
225785
Acct. No.:
1000012791
Date:
06/11/02
Page_
1
Purchase Order.
MR. DENNIS HUNT
STEPHENS INC.
3425 NORTH FUTRALL DRIVE STE 201
FAYETTEVILLE AR 72703
101015 ANALYTICAL SERVICES RENDERED IN CGINECTION WITH: $12,800.00
USD $25.000,000 City of Fayetteville. Arkansas,
Sales and Use Tax Capital Improvement Donds,
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 .
kimberl,y_sherriton@sandp:com
Special Innn,ctions
MR. DENNIS HUNT
STEPHENS INC.
3425 NORTH FUTRALL DRIVE STE 201
F.AYETTEVILLE AR 72703
• 1,0000127912 0225785 01280000 1 700 10 07 0602 7
TOTAL
STANDARD AND POOR'S
2542 COLLECTION CENTER DRIVE
CHICAGO, IL 60693
TOTAL
AMOUNT DUE
AMOUNT $12.800.00 USD
ENCLOSED
VV, LOI VL 1VO 10.11 rnA VV111Vl YOU as.r LLG1,J Pn An
Sent By: HP LaserJet 3100; 4795758241; 13 -May -02 9:39AM;
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 32,000.00
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
115 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
3+9000,000 City of Fayetteville, Arkansas (5 year maturity)
Authentication Fee $ 2,000.00
Annual Administration $,'ir}90:69 *&s4 a
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'h Day otApril 2002.
S AG �yt Trust Co a N.A,
8: f
. nda L Dean, rporate Trust Omeer
I2&4 V I
Page 5/5
06/18/02 TUE 13:16 FAX 5017187490 STEPHENS NW AR
FRIYI DG FAX W. :5013766901
DOCUMENT SOLUTIONS
400 W.. Capitol. 510.1640
Little Rock, AAmnsm 72201
Phone: (501) 3768000
• Fa:: (501) 3768001
nauCMIYadA- ___ M1A,
'OLD TO: STEPHEN'S INC.
111 CENTER STREET, SUITE 2300
LITTLE ROCK. AR 72201
ORDERED BY: DENNIS
_.. _ 21005
Jun. 12 2002 10:31AM P1
PLEASE PAY FROM THIS INVOICE
INVOICE 070 06/12102
INVOICE NUMBER; 52349
...._..-_,"...�
pad I aU
200
OUANTTry REM NUMBER 0E6CRIPTION UNIT PRIce EXTENSION
6,710
405
STRAIGHT RUN
184
426
COLOR COPIES
0.050
$35.50
184
455
G.B.C. COMB BINDING
0.990
182,16
1
500
POSTAGE
2.000
366.00
49
476
STUFF, SEAL, APPLY LABEL & POS
171.500
rAGE 0.300
171.50
14.70
IOU FOR CHOOSING DOCUMENT SOLU11ONS
mN Wit!, In to d. • fl. Pro ,(67•I n,r,aa Clary,
uZ. p2LShippin
m T I: 1,071.88
les T , 5965
: 0.00
1,131.61
9 06/12/02 W® 1021 (TY/RZ NO 5261)
j 200/Z00in HnIAH.LT3XY3 -ONI SNHHd3LS PPOZLLC TOS.G Cn:tT 7n/LTion
•
08/1 0 02 TE 13:17 08:29 S
9 18e601 3772044
DocuMENTSOLUTIONS
400 W. Cepl5�1, Ste. 1640
Wide Rock, ArkaMas 72201
Phale; (501) 376-8000
Fax (501) 376-8001
STD' STEPHEN'S INC.
111 CENTER STREET, SUITE 2300
LITTLE ROCK, AR 72201
OROERED BY: MICHELLE
STEPHENS NW AR _I�j000__
STEPHENS INC. ++-r FAYE11EVILLE ®001/001
PLEASE PAY FROM THIS INVOICE
INVOICE DATE: 06/17/02
INvoICENUMBER; 52515
VLaa4 I FAYETTEVILLE I OS '""''"'"'
NET 30 200
QUANTITY
ITEM NUMBER
DESCRIPTION UNITPRICE E><rEN8lON
3,423
405
STRAIGHT RUN
•
95
454
FASTBACK BINDING
0050
171.15
1.600
142.50
Item T
313.65
Sales 7w
20.78
Shlppin
: 0.00
tOfu 334.43
14ANK'vtU FOR cnnn ING nneluL4nn ant nnnue
■ Nwko If rot PW M W noo ttn . e FNe Percent (5%) anence chep _
ICY he adeo6
Zd Wd9£:£8 E002 Lt 'u•+f T6t399L£ta5I 'W XUd SQ: j
06/18/02 TUE 13:15 FAX 5017187490
STEPHENS NW AR
003
C1
CJ
•
Stephens Inc.
COST OF ISSUANCE STATEMENT
$25,000,000
City of Fayetteville, Arkansas
Sales and Use Tax Capita! 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
www.stcphcns corn
3425 North Funall Drive Suite 201, Fayetteville, Arkansas 72703
501-718-7400 Fax 501.718-7490 800-203-8613
Form 8038-G Information Return for Tax -Exempt Governmental Obligations
► Under Internal Revenue Code section 149(e) ( I OMB No. 15x5.0720
(Rev. November 2000)
See separate Instructions.
• Depan► menl or the Trcasrny Caution: 77 the issue
InterrW Reverx+e ServiceITluI price is under 3700.000, use Form 8038 -GC.
Reporting Authority If Amended Return, check here ► [
1 Issuer's name 2 Issuer's employer identification number
City of Fayetteville 71 : anxpac-t
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
6/20/02
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 ) 975-3000
ttmull
Type of Issue (check applicable box(es) and enter the issue nricel see inctn,rtinnc enrl ntt„-r. ..,
11
12
13
14
15
16
17
18
19
20
❑ Education . . . . . . . . . . .
❑ Health and hospital . . . . . . . . . . . . .
❑ Transportation . . . . . . . . . . . . . . .
❑ Public safety . . . . . . . . . . . .21 . . . .
Environment (including sewage bonds) . . . . . . .
❑ Housing . . . . . . . . . . . . . . . . .
❑ Utilities . . . . . . .. . . .
❑ Other. Describe ►
If obligations are
If obligations are
TANS or RANs, check
in the form of a lease
box ► ❑ If obligations are BANS, check box
or installment sale, check box
► ❑
► ❑
1111
Description
of Obligations.
Complete
for the entire issue for which this
form is being filed
RECEIVED
JUN.,-. 7.2002
UvDEN, Ut
(a) Final maturity date
(b) Issue price
(c) Stated redemption
price at maturity
(d) Weighted
average matunty
(e) yield
21
6-1-07
S 25,388,106
$ 25,000,000
2.557 years
2.7957 g6
Uses of Proceeds of Bond Issue
including underwriters' discount)
22
Proceeds used for accrued interest . . . . . . . . . . . . . . .
22
43,049
23
Issue price of entire issue (enter amount from line 21. column (b)) . .
23
25,388,106
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
29 Total (add lines 24 through 28) . . . . . . . . . . . . . . .
1,500,000
30
Nonrefunding roceeds of the issue (subtract line 29 from line 23 and enter amount here).
30
23,888,106
Description of Refunded Bonds (Complete this part only for refunding bonds.)
31
Enter the remaining weighted average. maturity of the bonds to be currently refunded . . . ►
years
32
33
34
Enter the remaining weighted average maturity of the bonds to be advance refunded . ►
Enter the last date on which the refunded bonds will be called . . ►
Enter the date(s) the refunded bonds were issued ► .
years
'IF1ipYiI
Miscellaneous
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 . . . . . . P'❑
40 If the issuer has identified a hed e, check box ► ❑
Under penalties of per)ury. I declare that I have examined this return and accompanying schedules and statements, and to me test of my knowledge
and belief, they are true, correct, and complete.
sign
Jere l !rL41P/ AZgc �j" ( FM
Signature of issuer's authorized representative
For Paperwork Reduction Act Notice, see page 2 of the
Dan Coody, Mayor
Date ' Type or print name and title
ns. Cat. No. 637735 Form 8038-G (Rev. 11-2000)
KUTAK ROCK LLP ATLANTA
• CHICAGO
SUITE 1100 DENVER Vew
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
GORDON M. WILBOURN June 20, 2002
gordon.wilboum@kuukrock.com
(501)915-3101
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.
paj
Enclosures
Very truly yo
Gordon M. Wilbourn
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
u
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............................................................................................................................................ l
GrantingClauses............................................................................................................................. 2
ARTICLE I
DEFINITIONS
Section101.
Definitions........................................................................................................
4
Section
102.
Use of Words.................................................................................................
11
ARTICLE II
THE BONDS
Section 201.
Section 202.
Section 203.
Security for the Bonds...................................................................................
Authorized Amount.......................................................................................
Details of Series 2002 Bonds.........................................................................
11
12
12
Section204.
Form.................................................................................4.............................
12
Section205.
Payment..........................................................................................................
12
Section206.
Section 207.
Section 208.
Execution.......................................................................................................
Authentication................................................................................................
Delivery of the Bonds....................................................................................
13
13
13
Section 209.
Section 210.
Section 211.
Section Section 212.
Mutilated, Destroyed or Lost Bonds..............................................................
Registration and Transfer of Bonds...............................................................
Cancellation..............................16
Additional Bonds and Drawdowns Under RLF Loans..................................16
14
15
Section 213.
Superior Obligations Prohibited....................................................................17
Section 214.
Section 215.
Section 216.
[RESERVED]................................................................................................17
Temporary Bonds...........................................................................................17
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
GENERAL COVENANTS AND REPRESENTATIONS
Section 401. Payment of Principal, Premium, if any, and Interest ..................................... 20
Section 402. Performance of Covenants............................................................................. 21
Section 403. Instruments of Further Assurance.................................................................. 21
Section 404. Recordation and Filing................................................................................... 21
Section 405. Inspection of Books....................................................................................... 21
Section 406. Tax Covenants............................................................................................... 21
Section 407. Trustee's and Paying Agent's Fees and Expenses.........................................22
Section 408. Construction of Project; Certification of Completion Date ........................... 22
Section409. Encumbrances................................................................................................ 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.................................................................... 23
Section 502. Project Fund..........................................................................................4........23
Section503. Revenue Fund................................................................................................ 24
Section504. Bond Fund...................................................................................................... 25
Section 505. Cost of Issuance Fund...........................................................................4... 4....26
Section 506. Redemption Fund........................................................................................... 26
Section 507. Rebate Fund................................................................................................... 27
Section 508. Debt Service Reserve Fund............................................................................ 27
Section 509. Cessation of Fund Deposits........................................................................... 28
Section 510. Separate Accounts Authorized....................................................................... 28
Mn"191m.aLI
INVESTMENTS
Section 601. Investment of Moneys.................................................................................... 29
Section 602. Investment Earnings....................................................................................... 29
Section 603. Valuation of Funds......................................................................................... 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
PriorLien.......................................................................................................
37
Section
903.
Additional Duties of Trustee..........................................................................
38
Section
904.
Notice to Bondholders of Default..................................................................
39
Section
905.
Intervention by Trustee..................................................................................
39
Section
906.
Merger or Consolidation of Trustee...............................................................
39
Section
907.
Resignation by Trustee..................................................................................
39
Section
908.
Removal of Trustee........................................................................................
39
Section
909.
Appointment of Successor Trustee................................................................
40
Section
910.
Concerning Any Successor Trustee...............................................................
40
Section
911.
Reliance Upon Instruments............................................................................40
Section
912.
Appointment of Co-Trustee...........................................................................
40
Section
913.
Designation and Succession of Paying Agents ..............................................
41
•
10-34187.07. 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
Section 1101.
Section 1102.
Section 1103.
Section 1104.
Section 1105.
Section 1106.
Section 1107.
Section 1108.
Section 1109.
Section 1110.
Exhibit A
Exhibit B
Exhibit C
10-34187.07
ARTICLE XI
MISCELLANEOUS
Consents, etc. of Bondholders.......................................................................
Notices...........................................................................................................
Limitationof Rights.......................................................................................
Severability....................................................................................................
43
44
44
44
Applicable Provisions of Law........................................................................
Counterparts...................................................................................................
45
45
Successorsand Assigns..................................................................................
Captions.........................................................................................................
Photocopies and Reproductions.....................................................................
45
45
45
BondsOwned by the City..............................................................................
45
Form of Series 2002 Bond ..............
Form of Coverage Certificate ..........
Requisition Form .............................
............................................................. A-I
.................................................4........... B-1
..................................4.4........................ C-1
. 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 Rep!. & 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:
CI
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 Rep!. & 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 4
"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;
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.
CI
1034187.07
• "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;
i(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.
10-34187.07 10
• 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 11
SSection 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
• (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 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
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.
Section403. 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
•
•
L
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 24
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
.0-34187.07 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(0(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(1) 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.
CI
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.
(I) 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.
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: 1
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)
•
ATTEST:
By:
Title: Vice President
(SEAL)
SIMMONS FIRST TRUST COMPANY, N.A.,
as Trustee
V.
Title: Co orate Trust O f er
10-34187.07
46
• 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 k) day
of June, 2002.
Notary Public
• My Commission expires:
(SEAL)
=PU83LIC
EAL
mas
RKANSAS
OUNTY
/2007
• [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.
A.
• Notary Public
My Commission expires:
c e -1A-cn
(SEAL)
OFFICIAL SEAL
Kelly S. Thomas
NOTARY PUBLIC - ARKANSAS
WASHINGTON COUNTY
EXPIRES 02/14/2007
[ACKNOWLEDGEMENT TO TRUST INDENTURE]
•
10-74187.07 48
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 -
REGISTERED
UNITED STATES OF AMERICA
STATE OF ARKANSAS
CITY OF FAYETTEVILLE, ARKANSAS
SALES AND USE TAX CAPITAL IMPROVEMENT BOND
SERIES 2002
Interest Rate: _% Maturity Date: June 1, 20
Date of Bond: June 1, 2002 CUSIP:
Registered Owner: CEDE & CO.
Principal Amount: 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
10-34187.07 A -I
• 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(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 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
Mayor
ATTEST:
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
0
(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.
20_
GUARANTEED BY:
Transferor
NOTICE: Signature(s) must be guaranteed by an institution satisfactory to the Trustee or
other transfer agent.
10-34187.07
A-6
9 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-1
C
•
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
41 By:
Authorized Representative
runner M
C-1
•
EXECUTION COPY
TAX REGULATORY AGREEMENT
between
CITY OF FAYETTEVILLE, ARKANSAS
FI
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
10-36562.03
• 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 1.1. 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 1, 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;
(f) 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);
10-36362.03 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
(t) 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.
rite tit I
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
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
lVJ
. 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.
.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
10-36562.03 16
i 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: ,2?p ('&?2�9"
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
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.
"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
K
(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;
0
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 .]
Dated:
SIMMONS FIRST TRUST COMPANY, N.A.,
as Trustee
•
•
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/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(�FTID.com
Standard & Poor's J. J. Kenny Repository
55 Water Street
45th Floor
New York, NY 10041
Phone: (212) 438-4595
Fax: (212) 438-3975
Email: nrmsir_repository@sandp.com
CI
I: 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 I 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 draftof 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 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
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.
0
10-36864.01 4
copy
. 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:
d2//r
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.
•
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:
Autl&ized Signatuj
10-36864.01
copy
(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.
0
10-36864.01
6
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 representationsf 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 Rep!. & 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.
(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
El
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.
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 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
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;
(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
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. Non assign ability. 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.
By:
C C-
Authi rized Representative
Accepted and agreed to as of
the date first above written:
CITY OF FAYETTEVILLE, ARKANSAS
. By:_______
Title: yor
L�
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, I.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-1
• 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
• (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
Y L.
�
•- a
O y
� � U
' aS
y 0
y O
V Y
U A
I N
Y L.
a n
y
C �
O L
yT �
t C
r T
es
22
0
N
e w
T O t
E 0
Y
V � 9
V rVnL
N O
y O T
L —
00
V V
�o ZC Y
—C
t,
VJ
g 9 �
y7 V
N
.c+�S
Di •
vu.
E O o
0 � o
g o
•q � N
614,
•- q O
e4o.
o
GC
,9 R
C,
o Y 9
�g;
y
w c m
cc? 0
Y 0
$ o
R'
= L. V
y = o
E c N
B
fn Y O
q L
0 NL
WEL
E O
y .o
d Z3
�L N
0 a
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 1 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"). Sec 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 0/0
2007
2,385,000
(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
STEPHENS INC.
Little Rock, Arkansas
Underwriter
s
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
PageIntroductory
Statement.........................................................................................................................................
•
I
TheSeries 2002 Bonds.........................................................................................................................................
2
Securityfor the Bonds..........................................................................................................................................
4
Book -Entry Only System......................................................................................................................................
4
TheProject............................................................................................................................................................
6
Historical Sales and Use Tax Collections.............................................................................................................
7
EstimatedSources and Uses of Funds..................................................................................................................
7
Estimated Debt Service Requirements.................................................................................................................
8
Estimated Debt Service Coverage........................................................................................................................
8
Projected Mandatory Redemptions.......................................................................................................................
9
TheCity................................................................................................................................................................
9
TheSales and Use Tax..........................................................................................................................................
12
Definitions of 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 -I
•
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 I, 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 I 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 5125,000,000 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 constriction 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 $ 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
20021" 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("
Series 2002 Bond Proceeds $25,000,000
Total Sources: $25.000.000
Uses of Funds("
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: $25.000.000
1" 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:
$25.000,000
1 27 5
26 27 55O0
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 .L21X
Average Annual Debt Service Coverage 1 72X
(0 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(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 J(')
Principal Due
Prior to Maturit (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
"r Series 2002 Bonds are subject to mandatory redemption from Surplus Tax Receipts on each June I and December 1. 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 1, 2003, 2004 and 2005, scheduled debt
service on an RLF Loan of S-0- for the twelve months ending June I, 2003, $219,178 for the twelve months ending June!, 2004, and
$1561.301 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
r�
u
•
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 Mar
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° 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
(n 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.
•
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 Tar. 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;
(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 (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;
(ti) 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 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;
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;
(1) 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 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.
18
"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 tinder 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:
(I) 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 I, 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(O 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, (I) 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(I) 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.
(1)
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 Slate 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
W&
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 Tares. 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 0
•
30
APPENDIX A
isProposed 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 of 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 I, 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
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.
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
•
BOISSUE
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 miners hereof 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; 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 lmr, 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
$25,000,000
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, finding 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 Yorkc 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 1 and December I of each year, commencing December 1,
2002. Al! 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 I, 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 reservedthe 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 1
'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.
" See the caption "RATING' herein.
Stephens Inc.
The date of this Official Statement is June 12. 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
Introductory Statement.........................................................................................................................................
•
1
TheSeries 2002 Bonds.........................................................................................................................................
2
Securityfor the Bonds..........................................................................................................................................
4
BookEntry Only System......................................................................................................................................
5
TheProject............................................................................................................................................................
6
Historical Sales and Use Tax Collections.............................................................................................................
7
Sourcesand Uses of Funds...................................................................................................................................
8
DebtService Requirements..................................................................................................................................
8
Estimated Debt Service Coverage........................................................................................................................
8
Projected Mandatory Redemptions.......................................................................................................................
9
TheCity................................................................................................................................................................
9
TheSales and Use Tax..........................................................................................................................................
12
Definitions of 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-I
•
[THIS PAGE LEFT BLANK INTENTIONALLY] •
• 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 famished 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 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."
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 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 I 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 I, 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
tong -term operating costs.
•
•
is
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
tt1 For the twelve-month period from April 1, 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 Princiyalltl Interest Service
2002 S - $ 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: $25.000.000 X2.241.540 $21241-,540
(1) 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"" $9,142,143
Maximum Annual Debt Service Requirement on Series 2002 Bondst2l $7,206,110
Average Annual Debt Service Requirement on Series 2002 Bondst2 $5,366,742
Maximum Annual Debt Service Coverage 1.27X
Average Annual Debt Service Coverage I.70X
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) 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 IIt)
Principal Due
Prior to Maturitvl2)
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
•
•
(I) Series 2002 Bonds are subject to mandatory redemption from Surplus Tax Receipts on each June I and December 1. See the caption
"THE SERIES 2002 BONDS— Redemption" herein.
(2) Assuming Sales and Use lax 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 I, 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
entire amount in the Debt Service Reserve Fund ($1250.000) 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 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
$18,260
$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" 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
(0 Does not include building activity of the 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 32 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.
Other major employers in the City, their products or services and approximate number of employees are set
forth below:
Employer
Pinnacle Foods
Superior Industries
Tyson's Original Mexican
Tyson's Entree Division
Levi Straus
McClinton -Anchor Co.
American Air Filter
Baldwin Piano & Organ
Marshalltown Tools
Standard Register
Danaher Tool Group
Kearney Company
Source: Fayetteville Chamber of Commerce.
Product or Service Employee Range •
Frozen Dinners 1,000-2,499
Cast Aluminum Wheels 1,000-2,499
Mexican Food Products 500-599
Frozen Dinner Entrees 500-599
Jackets 300-399
Limestone & Hot Mix 300-399
Air Filters 200-299
Elec. Organs & Circ. Bed 200-299
Cement Finishing Tools 200-299
Business Forms 200-299
Hand tools 100-199
Hi -Line Connectors 100-199
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;
(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 fifly 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;
(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;
(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;
(1) 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.
Evenptions 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 (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;
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 Tax 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.
"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:
(I) 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 namecreated 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(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 (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 (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
(It) 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.
"Spec fed 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
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
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,
•
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 Tares. 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
B : soo
Y
Mayor •
•
30
KUTAK ROCK LLP ATLANTA
• CHICAGO
SUITE 1100 DENVER
425 WEST CAPITOL AVENUE CITY
LINCOLN
LINCOLOLS N
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
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 CITY
LINCOLN
NCOLS OLN
LITTLE ROCK, ARKANSAS 72201-3409 NEWPORT BEACH
SOKLAHOMA CITY
U1 -HT5-3000
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,
10-37091.01
FAYETTEVILLE
C
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
7
Sincerely,
KIT WILLIAMS
Fayetteville City Attorney
1036970.01
• 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
:7:
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 IS. 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 Si 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:
• Nan/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
STEPHENS INC.
• By
Title: % y,� ovu,.y
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 'zed 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
B
Title: rporate Trust Officer
•
10.36642.01
It -12-9d 02:21?W FROM DTC UNDERWRITING
r. 32
Pill
I
0
i
Ill
Blanket Issuer Letter of Representations
(To be Comilla ad by bsuall
City of Fayetteville AR
(N'— at Iauvl
•. o r • • • . .. • 5;.... • • • • .. 1 -
. • • p • •. • the -
Very truly yours.
Reodved and Aa epted: Fred
c[yp•_.It a
THE DEP0SITORYTRUSTCOM•1pANy 113 W- Nountain St_
twee M& nl
By Fayetteville, AR 72701
501-575-8330
( )(•s)
C
• • • •. ,•• • • • •1• • r./w • I • • •• •:I r •
.
• • It • _. • •r•,.•• •• • • • • •-
•- •. _• • ••-I• • .• ••• •
• •• • I
\1
• ••' _• -• -• •
• •••`.• • • •• be ,
• y
• ••:...y • Ian.. '• ••141• • a •. •• 4 •r t ••I ••%1•- y •
•
• ••♦ :• f • •b• • qr• •• •J • • • • .• • 111 _• • • • •..• 1 • • 1 •
• • • • Y • • • • • -55.4t I. l • • I • • . •.1 • :.....l •
•
• 1•Y••: .•• •• 1. _ •• • •.1
C. • • •
•• J•.Y 1 • \ ._\•p a, -•
••✓ J
• .•�� ••
•aJY n •_:• • • or '_J nJ 11
• 1.. -a.-. .I I • • 1 n -a l l S..-... • • • • • • U . .,• 4 u
• • r • • • _ _
•• • ...: II • •I J - •• • • S.
'♦-r1 •1• • J4 J•
•1 bY• • •i_•. to
, r .• • . . • •:.Y• • � r • I.. Y I • 1 • 1 • .
: • • •I.a • 1 • 1 r • •. •.
•. ar.• •• 1: J•_;Y. •. •-1 • ••- ...•....In • •• Y 1• •u
•• .. •--••. •• • _.le__.
• • • _Y s • •u' as to
: • • • r
Y• • ee —ii.. ..p
• • .•._a 4 •uYl J •!n •
•.i• :y• • • Y:.
I • I••' • .••yo•r •. • 41•i I• • r•.••••• • _
y L
U .0 ••i Ian Y n
• •. ..•._. •• • • • . • •.•I
S. 111.• and
0
•
•
CI
Ratings Services
500 North Akard Street
Lincoln Plaza. Suite 3200
Dallas, TX 75201
Tel 214 871-1402
Reference Na: 565778
Standard & Poor's gg
A Division of The McGraw Hill Coupanies
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.
km
cc: Mr. Dennis Hunt, Senior Vice President
Stephens Inc.
Very truly yours,
MEMORANDUM OF AGREEMENT
RE: PUBLIC FINANCE DEBT CONTRACT RATINGS
Standard & Poor's 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 incured, 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 ail subsequent material changes in and
additions to such information prior to, at the lime 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 & Pools corporate or public finance debt rating is a current Winlon 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 information, 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, a other arrangement under the laws of bankruptcy
and other laws affecting creditors rights.
AAA Debt rated 'AAA' has the highest rating assigned by Standard & Poor's.
Capacity to pay interest and repay principal is extremely strong.
AA Debt rated 'M' has a very strong capacity to pay interest and repay principal
and differs Irom the highest rated issues only in man degree.
A Debt rated 'A' has a strong capacity to pay interest and repay principal although
it is somewhat mom susceptible to the adverse effects of changes in circumstances
and economic conditions than debt in higher rated categories.
888 Debt rated 868 Is regarded as having an adequate capacity to pay interest
and repay principal. Whereas it normally exhibits 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' CCC' CC' 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' the higher. White such debt will likely have some quali-
ty and protective characteristics, these are outweighed by large uncertainties or major
exposures to adverse conditions.
B8 Debt rated 'BB' has less near -ten,, 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 Debi 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 category.y is also used for debt subordinated to senior debt that
is assigned an actual or implied 88' m'88—' rating.
CCC Debt rated CCC' has a currently identifiable 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
adverse' business, financial, or economic conditions, it is net 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 "Orating category is used when interest
payments or principal payments am 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' D' rating 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 "p" 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 requirements •
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 closing 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 non-credit risks.
The absence of an'e 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 as refnancing,
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 (i) designation.
SP -2 Satisfactory capacity to pay principal and interest.
SP -3 Speculative capacity to pay principal and interest.
Dual Ratings
Standard & Poor's assign "dear 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 long-term debt rating Sym-
bols are used for bonds to denote the long-term maturity and the commercial paper refine
symbols for the put option (for example, AANA-1 t). With shat -term demand debt, the
note rating symbol is used with the commerical paper rating (for example. SP-1NA-t ♦').
0
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 imp Bnds Ser 2002 bonds is based on a pledge of a dedicated 0.75% citywide sales and use tax,
Sallee
a
'Sdate: 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;
. Good debt service coverage;
. The healthy historical growth of the pledged revenue stream; and
. 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 & Poor's
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 & Poor's RatingsDirect; the
premier source of real-time;Web-based credit ratings and research from an
REQUISITION
•
L�
CI
City 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
Authorized Representative
10-37093.01
u T
A
C
E '-
_ N
L '.1
2 _V
y N
O V
� N
6$
o. o
v u
u n
AN
d C
a m
T y
� L
a B
u
f.5
O
T y
E
y T
°c c
0'.
v,ej
O
o m
TO
E o0 �
v5
u N t
y A �
y O T
U,'-
0
.5 y 1
3 V
N
C
a O c
�aa
EO m
9.0
� � o
c C
u. -n
a m
N N
°-C
I - N c.
d 3
fl m
A y
U!
0 0 �
ill3
� y
u u
°?� io
c � "
U°
� o
a W'�
i'= o
E � N
`�v v
i o
U
d,cr
E
E 5 0
1 m u
-C A
KUTAK ROCK LLP
DRAFT 5/6/02
PRELIMINARY OFFICIAL STATEMENT DATED MAY __,2002
NEW ISSUE *RATINGS: S&P:""(Underlying:"")
(Underlying: "_")
BOOK -ENTRY ONLY ( , Insured)
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 oft/:e federal alternative
minimum tar 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: 1, 2002 Due: 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, [paying the premium for a financial guaranty insurance policy], 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 dare, payable on I and I of each year, commencing 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 _ 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. The Series 2002 Bonds are subject to optional and mandatory redemption
prior to maturity as more fully described herein under the caption "THE SERIES 2002 BONDS - Redemption."
Payment of the principal of and interest on the Series 2002 Bonds when due will be insured by a policy to be issued by
simultaneously with the delivery of the Series 2002 Bonds.
[INSURER LOGO)
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
)
Amount Rate
2002
$ %
2003
2004
2005
Maturity
Principal Interest
( Il
Amount Rate
2006
$
2007
2008
(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 _ 2002.
• See the caption "RATINGS" herein.
'• Preliminary; subject to change.
7.01
Stephens Inc.
The date of this Official Statement is June J 2002.
CITY OF FAYETTEVILLE, ARKANSAS
Issuer
City Council
Dan Coody, Mayor
Bob Davis
Lioneld Jordan
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
10-35407.01
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 PRELIMINARY 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
APPENDIX A - Form of Bond Counsel Opinion................................................................................................. A-1
[APPENDIX B - Specimen of Bond Insurance Policy]........................................................................................ B-1
10-35407.01
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.
adopted and approved on , 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, ](iii) paying the premium for a financial guaranty insurance policy], and
(iv) 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 special obligations of the City, 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"). [The regularly scheduled payment of principal of and interest on the
Series 2002 Bonds when due is guaranteed under a (the " ") issued
concurrently with the delivery of the Series 2002 Bonds by , a
(" "). See the captions "SECURITY FOR THE BONDS," "BOND INSURANCE" 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). 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."
Preliminary; subject to change.
10-35407.01
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 Preliminary 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 I, 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 I, 2002, and will bear interest
payable semiannually on I and I of each year, commencing 1, 2002, at the rates
set forth on the cover page hereof. The Series 2002 Bonds will mature on I 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:
[ADD REDEMPTION PROVISIONS FROM SECTION 301 OF TRUST INDENTURE]
Partial Redemption of a Series 2002 Bond. [SECTION 303 OF INDENTURE].
Notice of Redemption. [SECTION 302 OF INDENTURE]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
10-35407.01
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. [SECTION 212 OF INDENTURE] 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 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, Series 1999 Bonds and Subordinate Obligations, plus the Additional Bonds then proposed to be issued, (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 Series 1999 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. [DISCLOSE PLANS FOR ADDITIONAL BONDS]
Subordinate Obligations. [SECTION 214 OF INDENTURE] 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 in 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.
Transfer or Exchange. [SECTION 210 OF INDENTURE] 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.
10-35407.01 3
SECURITY FOR THE BONDS
General. The Bonds are special obligations of the City secured by and payable solely from the receipts of
the Sales and Use Tax. 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.
[INSERT CHART SHOWING HISTORICAL COLLECTIONS]
Debt Service Reserve. [ARTICLE V OF INDENTURE] 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 _% of the aggregate [maximum][average]
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
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 fund and debt service reserve fund with respect to the Series 1999 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 Bond 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.
Bond Insurance. As described below under the caption "BOND INSURANCE," the payment of principal
of and interest on the Series 2002 Bonds as due is guaranteed under a (the " ")
issued concurrently with the issuance of the Series 2002 Bonds by , a
(41 '').
[BOND INSURANCE[
[TO BE PROVIDED]
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.
10-35407.01
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.
10-35407.01
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
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 Preliminary
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
[TO BE PROVIDEDI
10-35407.01
ESTIMATED SOURCES AND USES OF FUNDS
The proceeds of the Series 2002 Bonds are expected to be used as follows:
Sources of Funds
Series 2002 Bond Proceeds $
Total Sources:
Uses of Funds
Deposit to Project Fund $
Debt Service Reserve Fund Deposit
Costs of Issuance and Underwriter's Discount
and Bond Insurance Premium
Contingency
Total Uses:
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 details amounts required to pay scheduled principal and
interest on the Series 2002 Bonds during each year:
Series 2002 Series 2002 Total Debt
Year Principal Interest Service
$ $ $
Totals: $ $
10-35407.01 7
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.
2000
(Audited)
Historical Sales and Use Tax Receipts $
Maximum Annual Debt Service Requirement on
Series 2002 Bonds(2) $
Average Annual Debt Service Requirement on
Series 2002 Bonds(2) $
Maximum Annual Debt Service Coverage X
Average Annual Debt Service Coverage X
(1) [TO BE PROVIDED]
(2) See the caption "ESTIMATED DEBT SERVICE REQUIREMENTS" herein.
2001
(Audited)
THE SET FORTH ABOVE ARE BASED ON
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.
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 are currently two vacant alderman positions.
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
Robert Reynolds
Alderman
12/31/02
Kevin Santos
Alderman
12/31/02
Brenda Thiel
Alderman
12/31/04
Cyrus Young
Alderman
12/31/02
10-35407.01
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.
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.
10-35407.01 9
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
(') 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.
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.
10-35407.01 10
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 County has pledged the receipts of the Sales and Use Tax to the payment of the Bonds.
The Sales and Use Tax became effective April I, 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
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;
10-35407.01 11
(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 S 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;
(t) 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
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;
(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;
10-35407.01 12
(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;
(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;
10-35407.01
13
(ee) New and used farm machinery and equipment;
(f) 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 S 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;
(xx) Parts or other tangible personal property incorporated into or which become a part of commercial
jet aircraft component or subcomponent;
10-35407.01 14
(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;
(fil) 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;
10-35407.01 15
(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
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;
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;
10-35407.01 16
(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 "THE INDENTURE - Revenue Fund" herein.
Historical Tax Receipts. The City presently levies a one percent (1%) sales and use tax for general
purposes (the "1% Tax"). Collections of the 1% Tax were as follows from 1997-2002:
Year 1% Tax Collections Annual Growth (%)
1997
1998
1999
2000
2001
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: [TO BE REVISED]
"Act" — Arkansas Code Annotated (1998 Repl. and Supp. 2001) §§ 14-164-401 et seq., §§ 14-234-201 ei
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.
"Ambac Assurance" means Ambac Assurance Corporation, a Wisconsin -domiciled stock insurance
company, the issuer of the Financial Guaranty Insurance Policy.
"Annual Debt Service" — With respect to all or any particular amount of Bonds, Series 1999 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, Series 1999 Bonds or Subordinate Obligations or from sources
other than Net Revenues.
"Authorizing Ordinance" — Ordinance No. 4381 of the City, adopted and approved on March 19, 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.
10-35407.01 17
"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, Series 1999 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, Series 1999 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" — The Escrow Deposit Agreement dated May 1, 2002, between the City and the
Escrow Trustee, providing for the redemption of the Series 1994 Bonds and the Series 2000 Bonds.
"Escrow Trustee" — The 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.
"Financial Guaranty Insurance Policy" — The financial guaranty insurance policy issued by Ambac
Assurance insuring the payment when due of the principal of and interest on the Series 2002 Bonds as provided
therein.
"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
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 I, 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:
(I) Government Securities;
(2) Direct obligations of any of the following federal agencies which obligations are not fully guaranteed
by the full faith and credit of the United States of America:
Senior debt obligations issued by the Federal National Mortgage Association
(FNMA) or Federal Home Loan Mortgage Corporation (FHLMC).
Obligations of the Resolution Funding Corporation (REFCORP).
10-35407.01
18
Senior debt obligations of the Federal Home Loan Bank System.
Senior debt obligations of other Government Sponsored Agencies approved by
Ambac Assurance;
(3) U.S. dollar denominated deposit accounts, federal funds and bankers' acceptances with domestic
commercial banks which have a rating on their short term certificates of deposit on the date of
purchase of "P -I" by Moody's and "A -I" or "A -I+" by S&P and maturing no more than 360
calendar days after the date of purchase. (Ratings on holding companies are not considered as the
rating of the bank.);
(4) Investments in a money market fund rated "AAAm" or "AAAm-G" or better by S&P;
(5) Pre -refunded Municipal Obligations defined as follows: any bonds or other obligations of any state of
the United States of America or of any agency, instrumentality or local governmental unit of any such
state which are not callable at the option of the obligor prior to maturity or as to which irrevocable
instructions have been given by the obligor to call on the date specified in the notice; and
(A) which are rated, based on an irrevocable escrow account or fund (the "escrow"), in the highest
rating category of Moody's or S&P or any successors thereto; or
(B) (i) which are fully secured as to principal and interest and redemption premium, if any, by an
escrow consisting only of cash or obligations described in paragraph A(2) above, which escrow
may be applied only to the payment of such principal of and interest and redemption premium, if
any, on such Obligations or other obligations on the maturity date or dates thereof or the specified
redemption date or dates pursuant to such irrevocable instructions, as appropriate, and (ii) which
escrow is sufficient, as verified by a nationally recognized independent certified public
accountant, to pay principal of and interest and redemption premium, if any, on the bonds or other
obligations described in this paragraph on the maturity date or dates specified in the irrevocable
instructions referred to above, as appropriate;
(6) Municipal obligations rated "Aaa/AAA" or general obligations of States with a rating of at least
"A2/A" or higher by both Moody's and S&P.
(7) Investment agreements approved in writing by Ambac Assurance (supported by appropriate opinions
of counsel); and
(8) Other forms of investments (including repurchase agreements) approved in writing by Ambac
Assurance.
"Moody's" — Moody's Investors Service, Inc., and any successor thereto.
"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 Series 1999 Bonds or any Subordinate
Obligations, (b) the Debt Service Reserve Fund or any debt service reserve fund or account created in connection
with the Series 1999 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.
"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;
10-35407.01 19
(b) Bonds deemed to be paid in accordance with Article VIII 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.
Notwithstanding the provisions of (a), (b) and (c), Series 2002 Bonds, the principal of and/or interest on which has
been paid by Ambac Assurance pursuant to the Financial Guaranty Insurance Policy, shall be deemed to remain
Outstanding for all purposes.
"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 Series 1999 Bonds;
(ii) liens for taxes, assessments and other governmental charges not then delinquent or which can be paid without
penalty; (iii) unfired, 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.
"Qualified Accountant" — An independent certified public accountant or firm of independent certified
public accountants not in the regular employ of the City.
"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.
"S&P" — Standard & Poor's Ratings Services, a Division of The McGraw-Hill Companies, Inc., and any
successor thereto.
"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.
"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 $2,730,000 for the purpose of refunding the Series 1994 Bonds.
10-35407.01 20
"Series 2002B Bonds" — One of the initial series of Bonds being issued under and secured by this Indenture
in the aggregate principal amount of $6,540,000 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 Series 1999 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.
SUMMARY OF THE INDENTURE
[TO BE REVISED] 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 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 Series 1999 Bonds and any
Subordinate Obligations, the maintenance of the Debt Service Reserve and the debt service reserves for the Series
1999 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 fund and
debt service reserve fund with respect to the Series 1999 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
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.
10-35407.01 21
(c) Bond Fund. Immediately following the making of required deposits into the Operation and
Maintenance Fund and into the bond fund and debt service reserve fund with respect to the Series 1999 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 and subsequent payment obligations
shall be reduced to the extent of investment earnings and other moneys credited to the Bond Fund from sources
other than monthly payments). 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.
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 fund and debt service reserve fund with respect to the Series 1999 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 and not paid for with moneys in the Operation and Maintenance Fund and costs of
damage caused to the System by unforeseen catastrophes.
(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
10-35407.01 22
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 based on accepted industry standards and from accepted industry providers. 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 fund for the Series 1999 Bonds,
pro rata, in relation to the then outstanding principal amounts of the Bonds and the Series 1999 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 of the
Indenture.
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 pan thereof, if the City shall elect to redeem prior to maturity on the next possible
redemption date all of the Bonds and Series 1999 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
10-35407.01 23
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 Series 1999 Bond;
(b) Default in the due and punctual payment of the principal of or premium, if any, on any Bond or
Series 1999 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
10-35407.01 24
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:
(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;
10-35407.01 25
(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 (I) 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 (I) deprive 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
[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).
10-35407.01 26
(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:
(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 percentages of all water users consuming more than 5% of the System's
water output;
(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 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 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.
(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.
(t) 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.
10-35407.01 27
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.
"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 I, 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.
10-35407.01 28
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.
RATINGS
Standard & Poor's Ratings Services, a Division of The McGraw-Hill Companies, Inc. ("S&P"), has given
the Series 2002 Bonds the rating of "AAA" based on the delivery of the by
and has assigned an underlying rating of" " to the Series 2002 Bonds. Such ratings
reflect only the view of S&P at the time such ratings were given. An explanation of the significance of the ratings
may be obtained from S&P. There is no assurance that such ratings will continue for any given period of time or
that the ratings 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 ratings 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 ratings or to oppose any revision or withdrawal of the ratings.
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. 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 three separate actions where the amount of damages
sought exceeds $50,000. In two of these cases, the City has prevailed at the trial court level with summary
judgments. These cases are currently on appeal. In the third case, a motion to dismiss filed by the City and other
defendants is pending. Each of these proceedings is being actively defended by counsel for the City, and as of the
date of this Preliminary Official Statement, the City believes the likelihood of unfavorable outcomes is remote.
10-35407.01 29
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 PRELIMINARY 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
10-35407.01 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. _ of the City, duly
adopted and approved on , 2002 (the "Authorizing Ordinance"), and pursuant to a Trust Indenture
dated as of 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 Authorizing Ordinance and enter into and perform its obligations under the Indenture,
the valid adoption of 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 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:
10-35407.01 A- I
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 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,
10-35407.01
A-2
KUTAK ROCK LLP
DRAFT 5/6/02
CITY OF FAYETTEVILLE, ARKANSAS
to
SIMMONS FIRST TRUST COMPANY, N.A.
as Trustee
TRUST INDENTURE
Dated as of 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
10-34187.01
TABLE OF CONTENTS
(This Table of Contents is not a part of the Trust
Indenture and is only for convenience of reference.)
Pa e No.
ARTICLE I
DEFINITIONS
Section101. Definitions........................................................................................................ 4
Section 102. Use of Words................................................................................................. II
ARTICLE II
THE BONDS
Section
201.
Security for the Bonds...................................................................................
11
Section
202.
Authorized Amount of Bonds........................................................................
12
Section
203.
Details of Series 2002 Bonds.........................................................................
12
Section204.
Form...............................................................................................................
13
Section205.
Payment..........................................................................................................
13
Section206.
Execution.......................................................................................................
13
Section
207.
Authentication................................................................................................
14
Section
208.
Delivery of the Bonds....................................................................................
14
Section
209.
Mutilated, Destroyed or Lost Bonds..............................................................
15
Section
210.
Registration and Transfer of Bonds...............................................................
15
Section
211.
Cancellation...................................................................................................
17
Section
212.
Additional Bonds...........................................................................................
17
Section
213.
Superior Obligations Prohibited....................................................................
17
Section
214.
Subordinate Obligations.................................................................................
18
Section
215.
Temporary Bonds...........................................................................................
18
Section
216.
Book -Entry Bonds; Securities Depository.....................................................
18
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
Section 301. Redemption of Series 2002 Bonds................................................................. 19
Section302. Notice............................................................................................................. 20
Section 303. Selection of Bonds to be Redeemed.............................................................. 20
Section 304. Surrender of Bonds Upon Redemption.......................................................... 20
10-34187.01 1
Section
305.
Redemption
in Part
.21
Section
306.
Redemption
of Additional Bonds..................................................................
21
ARTICLE IV
GENERAL COVENANTS AND REPRESENTATIONS
Section
401.
Payment of Principal, Premium, if any, and Interest .....................................
21
Section
402.
Performance of Covenants.............................................................................
21
Section
403.
Instruments of Further Assurance..................................................................
22
Section
404.
Recordation and Filing...................................................................................
22
Section
405.
Inspection of Books.......................................................................................
22
Section406.
Tax Covenants...............................................................................................
22
Section
407.
Trustee's, Paying Agent's [and Insurer's] Fees and Expenses ......................22
Section
408.
Construction of Project; Certification of Completion Date ...........................
23
Section
409.
Encumbrances................................................................................................
23
Section
410.
Continuing Disclosure...................................................................................
23
ARTICLE V
FUNDS AND DEPOSITS
Section
501.
Creation of Funds and Accounts....................................................................
24
Section502.
Project Fund...................................................................................................
24
Section
503.
Revenue Fund................................................................................................
25
Section504.
Bond Fund......................................................................................................
26
Section
505.
Cost of Issuance Fund....................................................................................
27
Section
506.
Redemption Fund...........................................................................................
27
Section507.
Rebate Fund...................................................................................................
27
Section
508.
Debt Service Reserve Fund............................................................................
28
Section
509.
Cessation of Fund Deposits...........................................................................
28
Section
510.
Separate Accounts Authorized.......................................................................
28
ARTICLE VII
INVESTMENTS
Section
601.
Investment of Moneys....................................................................................
29
Section
602.
Investment Earnings.......................................................................................
29
Section
603.
Valuation of Funds.........................................................................................
30
Section
604.
Responsibility of Trustee...............................................................................
30
10-34187,01 ii
ARTICLE VII
DISCHARGE OF LIEN
Section
701.
Discharge of Lien...........................................................................................
30
Section
702.
Bonds Deemed Paid.......................................................................................
30
Section
703.
Non -Presentment of Bonds............................................................................
31
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 .................................................
33
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......................................................................................
36
Section
902.
Fees, Charges and Expenses of Trustee and Paying Agents; Trustee's
PriorLien.......................................................................................................
38
Section
903.
Additional Duties of Trustee..........................................................................
38
Section
904.
Notice to Bondholders of Default..................................................................
39
Section
905.
Intervention by Trustee..................................................................................
39
Section
906.
Merger or Consolidation of Trustee...............................................................
39
Section
907.
Resignation by Trustee..................................................................................
39
Section
908.
Removal of Trustee........................................................................................40
Section
909.
Appointment of Successor Trustee................................................................
40
Section
910.
Concerning Any Successor Trustee...............................................................
40
Section
911.
Reliance Upon Instruments............................................................................
40
Section
912.
Appointment of Co-Trustee...........................................................................
40
Section
913.
Designation and Succession of Paying Agents..............................................41
10-34187. 01 iii
ARTICLE X
SUPPLEMENTAL INDENTURES
Section
1001.
Supplemental Indentures
Not Requiring Consent of Bondholders ................
42
Section
1002.
Supplemental Indentures
Requiring Consent of Bondholders .......................
42
Section
1003.
Effect of Supplemental Indentures.................................................................
43
ARTICLE XI
13T1O.u11W0VI ait9
Section 1101.
Consents, etc. of Bondholders.......................................................................
43
Section1102.
Notices...........................................................................................................
44
Section 1103.
Limitation of Rights.......................................................................................
44
Section 1104.
Severability....................................................................................................
44
Section 1105.
Applicable Provisions of Law........................................................................
45
Section 1106.
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..
10-34187. 01
iv
............................... A -I
TRUST INDENTURE
THIS TRUST INDENTURE dated as of
OF FAYETTEVILLE, ARKANSAS (the "City"), a city
existing by virtue of the laws of the State of Arkansa
COMPANY, N.A., as trustee (the "Trustee"), a national
and existing by virtue of the laws of the United States
corporate trust office in Pine Bluff, Arkansas;
- 1, 2002, by and between the CITY
of the first class organized under and
s, and SIMMONS FIRST TRUST
banking association organized under
of America and having its principal
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. of the City, adopted by
the City Council on May _, 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
10-34187.01
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, [the issuance of the Insurance Policy by the Insurer], 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, [to secure the
reimbursement to the Insurer of all amounts reimbursable pursuant to the Insurance Policy], 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:
10-34187.01 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, Project Fund and Redemption Fund established by this Indenture,
including the investment earnings thereon, if any.
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, [and shall pay all amounts due to the Insurer by
way of reimbursement or otherwise], 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:
10-34187.01 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:
"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.
"Account" means an Account established by Article V of this Indenture.
"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
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 or Subordinate Obligations 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. , adopted by the City on
May _, 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.
10-34187.01 4
"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 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
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 and Subordinate Obligations, excluding amounts scheduled during such
period which relate to principal which has been retired before the beginning of such period.
10-34187.01
"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 1, 2002, between the City
and the Trustee, pursuant to which the Bonds are issued, and any amendments and supplements
hereto.
["Insurance Policy"???]
["Insurer"???]
"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;
10-34187.01 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) 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;
(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;
[(g) other forms of investments (including repurchase agreements) authorized
by the laws of the State and approved by the Insurer.]
"Mayor" means the person holding the office and performing the duties of the Mayor of
the City.
"Official Intent Date" means October 5, 1999.
"Original Purchaser" means the first purchaser(s) of a series of Bonds from the City.
10-34187.01 7
"Outstanding" means, as of any date of computation, Bonds theretofore or thereupon
being delivered under this Indenture, [including Bonds for which the principal and interest is
paid by the Insurer pursuant to the Insurance Policy], 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;
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.
"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;
10-34187.01 8
(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 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.
"Qualified Project Costs" means Project Costs; provided, however, that (i) Project Costs
paid or incurred more than sixty (60) days prior to the applicable Official Intent Date 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 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 Bond proceeds.
"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 first day of 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,
10-34187.01 9
(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
Qualified 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 _% of the
aggregate outstanding principal
amount
of Outstanding Bonds
of all series].
"Revenue Fund" means the fund by that name confirmed and described 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.
"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.
"Subordinate Obligations" mean debt obligations of the City secured by a pledge of Sales
and Use Tax receipts that is subordinate to the pledge thereon securing the payment of the
Bonds, permitted by the provisions of Section 214 of this Indenture.
"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
10-34187.01 10
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, the Trustee [and the Insurer].
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 BONDSERROR! BOOKMARK NOT DEFINED.
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 [and to the payment of any and all amounts due and
owing to the Insurer with respect to the Insurance Policy], all in accordance with their terms and
10-34187.01 1 1
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.
(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.
Section 202. Authorized Amount of Bonds. 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 and Subordinate Obligations that may
be issued 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 1, 2002, (iv) shall bear interest from such date at the rates hereinafter provided
until paid, payable semiannually on I and 1 of each year, commencing
1, 2002, (v) shall be issued in denominations of $5,000 each, or any integral multiple
10-34187.01 12
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 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
( 1) Principal Amount Interest Rate
2003 $ %
2004
2005
2006
2007
2008
Section 204. Form. The Series 2002 Bonds shall be initially issued as fully registered
Bonds, without coupons, in the form of 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
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.
10-34187.01 13
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) [The original Insurance Policy and] any bond insurance policy to be issued
in connection with the issuance of Additional Bonds;
(d) 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;
(e)
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;
(f) A written opinion of Bond Counsel approving the legality of the Bonds;
(g) 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;
10-34187.01
14
(h) 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
(i) 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) $ , an amount equal to the Reserve Requirement, shall be
deposited in the Debt Service Reserve Fund;
[(c) $ , an amount equal to the premium for the Insurance Policy,
shall be wire transferred to the Insurer;]
(d) An amount equal to $ shall be deposited in the Costs of Issuance
Fund for payment of Costs of Issuance as directed by a Certificate of the City; and
(e) The balance of said proceeds, in the amount of $ , 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
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
10-34187.01 15
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 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.
10-34187.01 16
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. The City may issue from time to time one or more
series of Additional Bonds for the purpose of (i) financing Qualified Project Costs in connection
with the completion of the Project, (ii) refunding 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 and except for the security
afforded by any municipal bond insurance obtained with respect to a particular series of Bonds.
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 statement by a Qualified
Accountant reciting the opinion, based upon necessary investigation, that Sales and Use Tax
receipts during the calendar year immediately preceding the calendar year in which such
Additional Bonds are to be issued were not less than (i) _% of the [average][maximum]
Annual Debt Service on all then outstanding Bonds [and Subordinate Obligations], plus the
Additional Bonds then proposed to be issued, and (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
Subordinate Obligations. 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. [MAKE
SURE THIS COVERS RLF LOAN[
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.
10-34187.01 17
Section 214. 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 Sales and Use Tax receipts, provided payments
from Sales and Use Tax receipts, and the lien and charge on such Sales and Use Tax receipts,
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 to be made from Sales and Use Tax receipts specified by this
Indenture: (i) payments into the Bond Fund; (ii) payments into the Debt Service Reserve Fund;
(iii) payments into the Redemption Fund; and (iv) payment of the fees and expenses of the
Trustee [and the Insurer]. 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.
[MAKE SURE THIS COVERS RLF LOAN]
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
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
10-34187.01 18
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
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.
10-34187.01 19
(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.
[(c) The Series 2002 Bonds are subject to redemption prior to maturity, at the option
of the City, on and after 1, 20_, in whole at any time 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, from funds from any source, at a redemption price of 100% of the
principal amount of the Series 2002 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
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,
10-34187.01 20
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
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
10-34187.01 21
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
remain Outstanding, it will comply with the provisions of each applicable Tax Regulatory
Agreement.
Section 407. Trustee's, Paying Agent's [and Insurer'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.
[The City shall pay or reimburse the Insurer any and all charges, fees, costs and expenses
which the Insurer may reasonably pay or incur in connection with (i) the administration,
10-34187.01 22
enforcement, defense or preservation of any rights or security in this Indenture; (ii) the pursuit of
any remedies under this Indenture or otherwise afforded by law or equity, (iii) any amendment,
waiver or other action with respect to, or related to, this Indenture, whether or not executed or
completed, (iv) the violation by the City of any law, rule or regulation, or any judgment, order or
decree applicable to it, or (v) any litigation or other dispute in connection with this Indenture or
the transactions contemplated hereby, other than amounts resulting from the failure of the Insurer
to honor its obligations under the Insurance Policy. The Insurer reserves the right to charge a
reasonable fee as a condition to executing any amendment, waiver or consent proposed in respect
of the Indenture.]
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 Qualified Project Costs
have been paid, except for any Qualified 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 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 Insurer] 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 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.
10-34187.01 23
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
Qualified Project Costs. Disbursements shall be made from the Project Fund on the basis of
consecutively numbered Requisitions signed by an Authorized Representative. 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
Qualified 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
10-34187.01 24
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 thirty (30) 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 Qualified 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) [Unless the Insurer otherwise directs], 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.
(b) No later than the fifth day prior to the end of each month, commencing no later
than , 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;
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 Bonds;
THIRD: For deposit to the Debt Service Reserve Fund, an amount sufficient
to cure any deficiency in the Debt Service Reserve Fund;
FOURTH: 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; and
10-34187.01 25
FIFTH: All remaining moneys ("Surplus Tax Receipts") will be transferred
to the Redemption Fund and shall be applied to call Bonds 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 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.
10-34187.01 26
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
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 Section 301 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) 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.
10-34187.01 27
(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.
(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).
(f) 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(c) hereof, upon
the issuance of the Bonds, there shall be deposited into the Debt Service Reserve Fund, from
proceeds of the Bonds, an amount equal to the Reserve Requirement. 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 for
which there are no available funds in the Bond Fund to make such payments, as the same
become due at maturity. 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. 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.
[INSERT INSURANCE PROVISIONS IF APPLICABLE]
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 the principal and interest on all Bonds 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.
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.
10-34187.01 28
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
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
10-34187.01 29
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
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
10-34187.01 30
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
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;
10-34 187.01
31
(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.
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.
10-34187.01 32
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.
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
10-34187.01 33
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.
(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
10-34187.01 34
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 (1) 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
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.
10-34187.01 35
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
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 rightswhich
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.
10-34187.01 36
(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
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.
0) 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
10-34187.01 37
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
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 902 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 901(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. [REVISE??]
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;
10-34187.01 38
(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 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 $20 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).
10-34187.01 39
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
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 $20 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
10-34187.01 40
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 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.
10-34187.01 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
10-34187.01 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 (1) 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
10-34187.01 43
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 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 Hall
113 West Mountain
Fayetteville, Arkansas 72701
Attention: Mayor
Trustee: Simmons First Trust Company, N.A.
Pine Bluff, Arkansas
Attention:
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.
I0 -34187.O1 44
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 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.
10-34187.01 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:
Mayor
ATTEST:
City Clerk
(SEAL)
SIMMONS FIRST TRUST COMPANY, N.A.,
as Trustee
By:
Title:
ATTEST:
By:
Title:
(SEAL)
10-34187.01 46
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.
No. R02 -
UNITED STATES OF AMERICA
STATE OF ARKANSAS
CITY OF FAYETTEVILLE, ARKANSAS
SALES AND USE TAX CAPITAL IMPROVEMENT BOND
SERIES 2002
U
Interest Rate: % Maturity Date: 1, 20
Date of Bond: 1, 2002 CUSIP:
Registered Owner: CEDE & CO.
Principal Amount: Dollars
KNOW ALL MEN BY THESE PRESENTS:
[TO BE PROVIDED]
10-34187.01 B-1
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
2002 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 2002 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 2002 Bonds as the same become due and payable will be sufficient in amount for that
purpose.
This Series 2002 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 2002
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:
City Clerk
(SEAL)
10-34187.01 B-2
(Form of Trustee's Certificate)
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This bond is one of the Series 2002 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 2002 Bonds.
SIMMONS FIRST TRUST COMPANY, N.A.,
as Trustee
By:
Authorized Signature
10-34187.01 B-3
(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.
10-34187.01 B-4
KUTAK ROCK LLP
DRAFT 5/6/02
CONTINUING DISCLOSURE AGREEMENT
This Continuing Disclosure Agreement dated as of , 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. duly
adopted by the City Council of the City on May _, 2002 (the "Authorizing Ordinance"), and a
Trust Indenture dated as of 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.
"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.
10-35374.01
"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, to the Trustee, and to [BOND INSURER
NAME AND ADDRESS], 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, [BOND INSURER] 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.
2
10-35374.01
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 calendar year and
for the four previous years, if available
(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, 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;
(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;
3
10-35374.01
(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 [BOND INSURER] (at its address as provided in Section 3(a) hereof)
and each National Repository, or with [BOND INSURER], 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
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.
4
10-35374.01
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
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
5
10-35374.01
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
SIMMONS FIRST TRUST COMPANY, N.A.,
as Trustee
By:_
Title:
G7
10-35374.01
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: . 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 , 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 .]
Dated:
SIMMONS FIRST TRUST COMPANY, N.A.,
as Trustee
cc: City of Fayetteville
Stephens Inc.
A -I
10-35374.01
UEIIEIJflLI
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.see.aov/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@FTID.com
Standard & Poor's J. J. Kenny Repository
55 Water Street
45`h Floor
New York, NY 10041
Phone: (212) 438-4595
Fax: (212) 438-3975
Email: nrmsir_repository@sandp.com
I
B-1
10-35374.01
KUTAK ROCK LLP
DRAFT 5/6/02
BOND PURCHASE AGREEMENT
2002
City of Fayetteville
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 , 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 $ (equal
to the par amount of the Bonds less underwriter's discount of $ ) plus accrued
interest, if any, from 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 el 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
to be dated as of 1, 2002 (the "Indenture"), by and between the City and Simmons First
10-35375.01
Trust Company, N.A., Pine Bluff, Arkansas, as trustee (the "Trustee"), all as more particularly
described in the Indenture. [BOND INSURANCE??]
The Bonds shall be issued and secured pursuant to Ordinance No. of the City
Council of the City which was adopted on May _, 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, [(iii) to pay the premium
on a policy of municipal bond insurance], and (i) 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 , 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
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
10-35375.01
(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
10-35375.01
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.
(0 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
10-35375.01
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
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. 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
5
10-35375.01
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 , 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
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
6
10-35375.01
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
(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
10-35375.01
(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
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
8
10-35375.01
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) [ELECTION MATERIALS]
(6) Photocopies of the Bonds as executed and delivered;
(7) [A letter or letters from [RATING AGENCY] to the effect that the
Bonds have been assigned a rating of no less than ["AAA"] based on the delivery
of the Policy (as defined below) and an underlying rating of ["_"], which ratings
shall be in effect as of the Closing Date];
(8) [BOND INSURANCE POLICY] (the "Policy") issued by [BOND
INSURER], together with such supporting certificates of the Insurer and opinions
of counsel to the Insurer as shall be satisfactory to Bond Counsel;
(9) 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
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
9
10-35375.01
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;
(10) 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
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
10
10-35375.01
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
(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;
(11) Evidence that Federal Form 8038-G has been executed by the City
and is ready for filing with the Internal Revenue Service.
(12) 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
(13) 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,
11
10-35375.01
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 terns 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
12
10-35375.01
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 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
10-35375.01
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
14
10-35375.01
EXHIBIT A
MATURITY SCHEDULE
( 1) Principal Interest
Maturity Amount Rate
2003 $ %
2004
2005
2006
2007
2008
(with accrued interest on all Bonds from 1, 2002)
A-1
10-35375.01
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:
2002
City of Fayetteville, Arkansas
Fayetteville, Arkansas
Simmons First Trust Company, N.A., as Trustee
Pine Bluff, Arkansas
Stephens Inc.
Little Rock, Arkansas
[BOND INSURER]
New York, New York
$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 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. of the City, duly adopted and approved on , 2002 (the
"Authorizing Ordinance" ), and pursuant to a Trust Indenture dated as of 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.
[TO BE PROVIDED]
B-1
10-35375.01
EXHIBIT C
PROPOSED FORM OF BOND COUNSEL SUPPLEMENTAL OPINION
2002
City of Fayetteville, Arkansas
Fayetteville, Arkansas
Simmons First Trust Company, N.A., as Trustee
Pine Bluff, Arkansas
Stephens Inc.
Little Rock, Arkansas
[BOND INSURER]
New York, New York
$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.
[TO BE PROVIDED]
10-35375.01 C- I
Bond3esource Partners, LP
An affiliate of Ballard Spahr
$25,000,000
City of Fayetteville, Arkansas
Sales and Use Tax Capital Improvement Bonds
Series 2002
For the Period June 20, 2002 to June 1, 2005
FINAL CALCULATION OF ARBITRAGE REBATE
[/5
,o nlrs/i /th/ 225`-
Ord. 4'35'/
Bond�esource Partners, LP
An affiliate ofBallard Spahr
January 17, 2006
The City of Fayetteville. Arkansas
113 West Mountain Street
Fayetteville, Arkansas 72701
FINAL CALCULATION OF ARBITRAGE REBATE
$25,000,000
City of Fayetteville, Arkansas
Sales and Use Tax Capital Improvement Bonds
Series 2002
For the Period June 20, 2002 to June 1, 2005
We have completed our consulting engagement to prepare certain computations to determine
the rebatable arbitrage, if any, relating to the above -captioned bond issue (the "Bonds").
Rebate of arbitrage is required by Section 148(f)(2) of the Internal Revenue Code of 1986 (the
"Code"). Our computations are in accordance with the applicable regulations currently in effect.
The computation of the final rebate amount covers the investment of gross proceeds from June
20, 2002 (the delivery date of the Bonds) through June 1, 2005 (the computation date) The
amount shown below reflects the amount of arbitrage, if any, which is attributable to the period
ended June 1, 2005.
In connection with our engagement, we:
1. Read applicable bond documents.
2. Recomputed the bond yield and agreed the results to the relevant bond documents.
3. Obtained bond, investment, and expenditure data.
4. Computed rebatable arbitrage in accordance with the regulations applicable to the
Bonds, as described below.
City of Fayetteville Series 2002
Page 2
January 17, 2006
In performing the above, we have been provided certain information from the City of
Fayetteville, Arkansas including trust statements detailing the investment activities of the bond
proceeds and debt service payments, as well as other information deemed necessary. The
computational information included herein is an integral part of the computations.
The final arbitrage calculation, as you know, was prepared from data made available to but not
audited or otherwise verified directly by us. We have assumed the data's accuracy and
completeness. We suggest that a careful review be made of the information to determine that
there are no omissions or misstatements of facts.
Our computations are summarized as follows:
Rebatable Arbitrage as of June 1, 2005
(Schedule I) None
The amount stated above is a final calculation to determine the rebatable arbitrage on
investment activity from June 20, 2002 to June 1, 2005.
The rebatable arbitrage has been determined as described in the Regulations under Code
Section 148(f). The IRS has published regulations effective for bonds issued after June 30,
1993, (the "1993 Regulations"). Our methodology for calculating the rebate liability was
developed based on the 1993 Regulations.
This letter is intended solely for the information of, and assistance to the City of Fayetteville.
Arkansas, in connection with the determination of the arbitrage amount. It is not to be used,
referred to or distributed for any other purposes.
We have no responsibility to update this letter for events and circumstances, including changes
in regulations or interpretations thereof, occurring after the date of this letter.
FINAL CALCULATION OF ARBITRAGE REBATE
$25,000,000
CITY OF FAYETTEVILLE, ARKANSAS
SALES AND USE TAX CAPITAL IMPROVEMENT BONDS
SERIES 2002
FOR THE PERIOD JUNE 20, 2002 TO JUNE 1, 2005
TABLE OF CONTENTS
Summary of Computational Information and Definitions .......................... 1
Computation of Rebatable Arbitrage........................................................ 3
SUMMARY OF COMPUTATIONAL INFORMATION AND DEFINITIONS
CITY OF FAYETTEVILLE, ARKANSAS
COMPUTATIONAL INFORMATION
1. For purposes of calculating rebatable arbitrage, investment activity is reflected from June
20, 2002, the delivery date of the Bonds, to June 1, 2005 (the "Computation Period").
2. Computations of yield are based upon a 360 day year and semiannual compounding.
3. For investment cash flow, debt service and yield computation purposes, all payments and
receipts are assumed to be paid or received, respectively, as shown in the attached
schedules.
4. Purchase prices of investments are assumed to be at fair market value, excluding
brokerage or other acquisition fees, representing an arm's length transaction, which did not
reduce the rebate amount required to be paid to the United States.
5. Investment valuations have been calculated as of June 1, 2005 using the present value
and disposition assumptions contained in Code Section 1.148-5(d) of the 1993
Regulations.
6. It is assumed that the Revenue Bond Fund and the Redemption Fund meets the
definitional and timing requirements of a "bona fide debt service fund" as such term is
defined in Regulation Section 1.148-1(b), except for the bond years ended 2002, 2003 and
2004. In any year in which the Bond Fund fails to satisfy the requirements of a "bona fide
debt service fund," the activity is included in the rebate computation. This fund has been
excluded from rebate in each period in which the gross earnings for the bond year do not
exceed the $100,000 earnings limitation of Code Section 148(f)(4)(A)(ii) and the fund
meets the definitional requirements of a "bona fide debt service fund".
DEFINITIONS
1. Computation Date:
The last day of the fifth and each succeeding fifth bond year, where the bond year is each
one-year period (or shorter period from the date of issue) selected by the issuer. The final
computation date is the date an issue is retired.
2. Bond Yield:
U
U
U
S
U
The discount rate that, when used in computing the present value of all unconditionally
payable payments of principal and interest and all the payments for a qualified guarantee
paid and to be paid with respect to the Bonds, produces an amount equal to the present
value of the issue price of the Bonds. Present value is computed as of the date of issue of
the Bonds and at the beginning of each subsequent yield period. We have not audited or
otherwise verified these amounts.
■
■
■
• 3. Issue Price:
• The price determined on the basis of the initial offering price to the public at which price a
substantial amount of the Bonds were sold to the public.
4. Rebatable Arbitrage:
•
The excess of the amount earned on all nonpurpose investments over the amount which
would have been earned if such nonpurpose investments were invested at the Bond Yield,
plus any income attributable to the excess. This amount is computed as the excess of the
• future value of all the nonpurpose receipts over the future value of all the nonpurpose
■ payments. The future value is computed as of the Installment Computation Date using the
Bond Yield.
U
a
•
U
•
U
U
U
U
• _2_
SCHEDULEI
$25,000,000
City of Fayetteville, Arkansas
Sales and Use Tax Capital Improvement Bonds
Series 2002
edule
Arbitrage Rebate Summary
I(A)
Project Construction Fund
1(B)
Revenue Bond Fund
I(C)
Debt Service Reserve Fund
I(D)
Cost of Issuance
I(E)
Redemption Fund
I(F)
Computational Credits
Total
($888,854.34)
(153,931.99)
(43,472.42)
(29.22)
(35,495.03)
(3085.25)
($1,124,868.24)
Reba able
($888,854.34)
(153,931.99)
(43,472.42)
(29.22)
(35,495.03)
(3,085.25)
($1,124,868.24)
NOTE: THE COMMENTS AND ASSUMPTIONS CONTAINED IN THE ACCOMPANYING LETTER ARE AN INTEGRAL PART OF THIS SCHEDULE.
SCHEDULE I(A)
$25,000,000
City of Fayetteville, Arkansas
Sales and Use Tax Capital Improvement Bonds
Series 2002
U
S
N
U
N
Days To
06/01/05
Future Value
Future Value @
Date
Project Construction Fund
30/360 Day Year
Factor
2.79568805 %
06/20/02
($23,888,105.70)
1,061
1.085265
($25,924,934.78)
09/09/02
62,388.69
982
1.078674
67,297.03
09/13/02
85,178.99
978
1.078341
91,851.98
10/16/02
96,093.96
945
1.075600
103,358.66
10/22/02
111,941.55
939
1.075102
120,348.63
11/06/02
11,351.21
925
1.073942
12,190.54
11/21/02
(1,113.94)
910
1.072701
(1,194.92)
11/21/02
1,113.94
910
1.072701
1,194.92
12/05/02
(255.49)
896
1.071543
(273.77)
12/05/02
255.49
896
1.071543
273.77
12/13/02
93,330.38
888
1.070882
99,945.84
12/19/02
(143,375.36)
882
1.070387
(153,467.09)
12/19/02
143,375.36
882
1.070387
153,467.09
12/31/02
46,847.11
871
1.069479
50,102.01
12131/02
1,847.29
871
1.069479
1,975.64
12/31/02
23,591,980.64
871
1.069479
25,231,130.72
12/31/02
(23,593,827.93)
871
1.069479
(25,233,106.36)
09/05/03
112,135.92
626
1.049462
117,682.34
10/06/03
398,420.51
595
1.046956
417,128.59
10/20/03
280,946.02
581
1.045826
293,820.61
10/20/03
115,428.80
581
1.045826
120,718.42
10/24/03
94,210.00
577
1.045503
98,496.86
10/31/03
32,402.84
571
1.045020
33,861.60
11/17/03
286,444.89
554
1.043650
298,948.34
12/08/03
549,467.19
533
1.041962
572,523.71
12/29/03
592,016.72
512
1.040275
615,860.48
12/31/03
4,787.18
511
1.040195
4,979.60
12/31/03
(70,307.04)
511
1.040195
(73,133.05)
12/31/03
21,523,015.63
511
1.040195
22,388,138.75
12/31/03
(21,527,802.81)
511
1.040195
(22,393,118.35)
01/26/04
187,815.26
485
1.038112
194,973.20
02/02/04
74,247.00
479
1.037631
77,041.02
02/19/04
73,415.61
462
1.036272
76,078.53
02/17/04
208,031.14
464
1.036432
215,610.08
02/25/04
313,485.50
456
1.035792
324,705.93
03/03/04
22,598.87
448
1.035154
23,393.30
03/08/04
161,077.56
443
1.034755
166,675.74
03/23/04
241,847.35
428
1.033558
249,963.32
03/23/04
202,982.40
428
1.033558
209,794.13
04/05/04
361,660.07
416
1.032602
373,450.98
04/05/04
129,449.74
416
1.032602
133,670.09
04/12/04
171,833.15
409
1.032045
177,339.53
04/26/04
168,520.00
395
1.030931
173,732.53
04/26/04
126,824.58
395
1.030931
130,747.42
05/05/04
334,116.02
386
1.030216
344,211.64
05/20/04
11,813.06
371
1.029025
12,155.93
■
■
■
■ SCHEDULE I(A)
$25,000,000
• City of Fayetteville, Arkansas
Sales and Use Tax Capital Improvement Bonds
■ Series 2002
S
Days To
■ 06/01/05 Future Value Future Value @
Date Project Construction Fund 30/360 Day Year Factor 2.79568805 %
■ 05/27/04 429,587.79 364 1.028469 441,817.94
■ 06/07/04 131,741.43 354 1.027677 135,387.59
06/07/04 130,888.55 354 1.027677 134,511.11
06/16/04 113,953.51 345 1.026964 117,026.11
• 06/30/04 483,928.75 331 1.025855 496,440.92
07/07/04 147,542.27 324 1.025302 151,275.35
• 07/08/04 243,801.14 323 1.025223 249,950.46
07/12/04 22,860.44 319 1.024906 23,429.81
. 07/21/04 391,145.06 310 1.024195 400,608.95
08/02/04 362,358.02 299 1.023327 370,810.70
08/11/04 124,342.83 290 1.022617 127,155.07
• 08/16/04 729,346.04 285 1.022223 745,554.00
08/23/04 26,293.43 278 1.021671 26,863.23
• 09/01/04 219,504.00 270 1.021041 224,122.53
09/07/04 9,584.05 264 1.020568 9,781.18
09/13/04 474,028.88 258 1.020096 483,555.10
09/27/04 240,945.05 244 1.018995 245,521.92
10/04/04 60,967.74 237 1.018446 62,092.32
• 10/15/04 170,273.06 226 1.017582 173,266.79
10/21/04 185,312.35 220 1.017111 188,483.27
• 11/01/04 3,455.00 210 1.016327 3,511.41
11/08/04 390,383.02 203 1.015779 396,542.72
■ 11/17/04 1,200.00 194 1.015074 1,218.09
11/19/04 260,406.73 192 1.014917 264,291.28
■ 12/06/04 522.50 175 1.013588 529.60
12/06/04 534.00 175 1.013588 541.26
12/13/04 228,802.45 168 1.013040 231,786.15
• 12/27/04 18,979.94 154 1.011947 19,206.70
12/31/04 5,734.32 151 1.011713 5,801.49
. 12/31/04 34,583.61 151 1.011713 34,988.70
12/31/04 13,237,926.71 151 1.011713 13,392,985.52
■ 12/31/04 (13,278,244.64) 151 1.011713 (13,433,775.70)
01/06/05 102,324.53 145 1.011245 103,475.19
01/19/05 150,704.97 132 1.010232 152,246.96
01/21/05 162,470.69 130 1.010076 164,107.75
01/31/05 92,390.96 121 1.009375 93,257.15
• 02/14/05 125,973.48 107 1.008286 127,017.30
02/14/05 29,504.35 107 1.008286 29,748.82
02/25/05 132,038.20 96 1.D07431 133,019.38
■ 03/07/05 15,164.28 84 1.006499 15,262.83
03/21/05 92.50 70 1.005413 93.00
• 04/06/05 6,400.00 55 1.004251 6,427.20
04/11/05 2,550.00 50 1.003863 2,559.85
• 04/15/05 3,780.00 46 1.003554 3,793.43
04125/05 68,186.18 36 1.002780 68,375.75
. 05/02/05 231,191.50 29 1.002239 231,709.14
SCHEDULE I(A)
$25,000,000
City of Fayetteville, Arkansas
Sales and Use Tax Capital Improvement Bonds
Series 2002
Days To
06/01/05
Future Value
Future Value @
Date
Pled Construction Fund
30/360 Day Year
Factor
2.79568805 %
05/09/05
370,411.25
22
1.001698
371,040.24
05/13/05
2,790.00
18
1.001389
2,793.88
05/23/05
120,260.23
8
1.000617
120,334.45
05/31/05
27,800.67
1
1.000077
27,802.81
06/01/05
9,717.12
0
1.000000
9,717.12
06/01/05
11 723,470.66
0
1.000000
11,723,470.66
$779,818.95
($888,854.34)
NOTE: THE COMMENTS AND ASSUMPTIONS CONTAINED IN THE ACCOMPANYING LETTER ARE AN INTEGRAL PART OF THIS SCHEDULE.
SCHEDULE I(B)
$25,000,000
City of Fayetteville, Arkansas
Sales and Use Tax Capital Improvement Bonds
Series 2002
Days To
06/01/05
Future Value
Future Value @
Date
Revenue Bond Fund
30/360 Day Year
Factor
2.79568805 %
06/20/02
($43,048.72)
1,061
1.085265
($46,719.29)
06/27/02
(606,075.84)
1,054
1.084680
(657,398.16)
07/03/02
128.46
1,048
1.084178
139.27
07/03/02
(128.46)
1,048
1.084178
(139.27)
07/03/02
128.46
1,048
1.084178
139.27
07/30/02
(606,075.84)
1,021
1.081923
(655,727.23)
08/02/02
845.37
1,019
1.081756
914.48
08/27/02
(606,075.84)
994
1.079672
(654,363.26)
09/04/02
1,642.36
987
1.079090
1,772.25
09/27/02
(606,075.87)
964
1.077177
(652,851.10)
10/02/02
2,115.95
959
1.076762
2,278.37
10/30/02
(686,579.87)
931
1.074439
(737,688.39)
11/04/02
2,879.42
927
1.074108
3,092.81
11/06/02
(5,080.22)
925
1.073942
(5,455.86)
11/27/02
(686,579.87)
904
1.072204
(736,153.94)
12/02/02
600,000.00
899
1.071791
643,074.61
12/02/02
407,845.25
899
1.071791
437,124.87
12/03/02
2,818.13
898
1.071708
3,020.21
12/27/02
(686,579.87)
874
1.069727
(734,452.74)
12/31/02
2,400.21
871
1.069479
2,566.97
12/31/02
3,524,326.69
871
1.069479
3,769,193.81
12/31/02
(3,526,726.90)
871
1.069479
(3,771,760.79)
01/03/03
2,400.21
868
1.069232
2,566.38
01/30/03
(769,229.18)
841
1.067008
(820,773.40)
02/04/03
2,885.57
837
1.066679
3,077.98
02/26/03
(1,024,013.33)
815
1.064870
(1,090,441.37)
03/04/03
3,293.73
807
1.064214
3,505.23
03/05103
(26,385.97)
806
1.064131
(28,078.14)
03/26/03
(710,256.77)
785
1.062409
(754,583.50)
04/03/03
4,189.72
778
1.061836
4,448.80
04/14/03
(2,885.57)
767
1.060936
(3,061.40)
04/14/03
(3,293.73)
767
1.060936
(3,494.44)
04/14/03
2,855.57
767
1.060936
3,029.58
04/14103
3,239.73
767
1.060936
3,437.15
04/24/03
(697,812.95)
757
1.060118
(739,763.92)
05/02/03
4,445.71
749
1.059464
4,710.07
05/23/03
(779,309.31)
728
1.057749
(824,314.03)
06/02/03
6,457,750.00
719
1.057016
6,825,942.39
06/02/03
398,230.00
719
1.057016
420,935.32
06/03/03
(391,175.00)
718
1.056934
(413,446.19)
06/03/03
5,030.66
718
1.056934
5,317.08
06/26/03
(540,126.00)
695
1.055061
(569,865.87)
■
■
■
SCHEDULE I(B)
$25,000,000
City of Fayetteville, Arkansas
Sales and Use Tax Capital Improvement Bonds
Series 2002
U
■ Days To
06/01/05 Future Value Future Value @
. Date Revenue Bond Fund 30/360 Day Year Factor 2.79568805 %
■ 07/02/03 602.22 689 1.054573 635.08
07/25/03 (540,126.00) 666 1.052704 (568,592.79)
■ 08/04/03 942.34 657 1.051974 991.32
08/27/03 (540,126.00) 634 1.050109 (567,191.32)
09/03/03 1,171.99 628 1.049623 1,230.15
09/25/03 (540,126.00) 606 1.047844 (565,967.87)
10/02/03 1,369.87 599 1.047279 1,434.64
10/27/03 (540,126.00) 574 1.045261 (564,572.87)
11/04/03 1,635.74 567 1.044697 1,708.85
• 11/25/03 (540,126.00) 546 1.043007 (563,355.07)
12/01/03 320,080.00 540 1.042524 333,691.16
• 12/02/03 1,870.34 539 1.042444 1,949.72
12/18/03 (540,126.00) 523 1.041158 (562,356.69)
. 12/31/03 2,073.71 511 1.040195 2,157.06
12/31/03 4,527,331.20 511 1.040195 4,709,308.44
■ 12/31/03 (4,529,404.91) 511 1.040195 (4,711,465.50)
01/05/04 2,073.71 506 1.039794 2,156.23
01/27/04 (426,700.00) 484 1.038032 (442,928.07)
02/03/04 2,218.84 478 1.037551 2,302.16
02/25/04 (426,700.00) 456 1.035792 (441,972.66)
• 03/02/04 2,323.91 449 1.035233 2,405.79
03/29/04 (426,700.00) 422 1.033080 (440,615.28)
04/01/04 2,733.89 420 1.032921 2,823.89
04/29/04 (794,696.82) 392 1.030693 (819,088.24)
• 05/25/04 (881,403.76) 366 1.028628 (906,636.71)
06/01/04 6,367,750.00 360 1.028152 6,547,016.66
■ 06/01/04 293,040.00 360 1.028152 301,289.74
06/15/04 (405,750.00) 346 1.027043 (416,722.62)
■ 06/25/04 (359,892.00) 336 1.026251 (369,339.54)
06/30/04 560.07 331 1.025855 574.55
■ 06/30/04 1594,418.82 331 1.025855 1,635,643.15
$56,129.25 ($153,931.99)
■ NOTE. THE COMMENTS AND ASSUMPTIONS CONTAINED IN THE ACCOMPANYING LETTER ARE AN INTEGRAL PART OF THIS SCHEDULE.
■
■
■
SCHEDULE I(C)
$25,000,000
City of Fayetteville, Arkansas
Sales and Use Tax Capital Improvement Bonds
Series 2002
Days To
06/01/05
Future Value
Future Value
Date Debt
Service Reserve Fund
30/360 Day Year
Factor
2.79568805 %
06/20/02
($1,250,000.00)
1,061
1.085265
($1,356,581.76)
06/28/02
(3,541.67)
1,053
1.084596
(3,841.28)
06/28/02
3,541.67
1,053
1.084596
3,841.28
07/03/02
261.10
1,048
1.084178
283.08
08/02/02
0.58
1,019
1.081756
0.63
09/04/02
0.57
987
1.079090
0.62
10/02/02
0.52
959
1.076762
0.56
11/04/02
0.53
927
1.074108
0.57
12/03/02
0.40
898
1.071708
0.43
12/03/02
(25,925.00)
898
1.071708
(27,784.04)
12/03/02
25,925.00
898
1.071708
27,784.04
12/31/02
(10,015.54)
871
1.069479
(10,711.41)
12/31/02
20.29
871
1.069479
21.70
12/31/02
1,272, 383.33
871
1.069479
1,360,787.41
12/31/02
(1,272,403.62)
871
1.069479
(1,360,809.11)
01103/03
20.29
868
1.069232
21.69
02/04/03
21.07
837
1.066679
22.47
03/04/03
19.41
807
1.064214
20.66
03/05/03
26,385.97
806
1.064131
28,078.14
04/03/03
3.40
778
1.061836
3.61
06/03/03
391,175.00
718
1.056934
413,446.19
07/02/03
47.51
689
1.054573
50.10
08/04/03
0.11
657
1.051974
0.12
09/03/03
0.11
628
1.049623
0.12
10/02/03
0.10
599
1.047279
0.10
12/02/03
42.83
539
1.042444
44.65
11/04/03
0.10
567
1.044697
0.10
12/02/03
42.83
539
1.042444
44.65
12/31/03
421.11
511
1.040195
438.04
12/31/03
859,209.64
511
1.040195
893,745.79
12/31/03
(859,630.75)
511
1.040195
(894,183.83)
01/02/04
88,959.64
509
1.040035
92,521.12
01/05/04
421.11
506
1.039794
437.87
02/03/04
377.07
478
1.037551
391.23
03/02/04
355.96
449
1.035233
368.50
04/02/04
388.34
419
1.032841
401.09
05/04/04
363.20
387
1.030295
374.20
06/02/04
369.93
359
1.028073
380.32
06/15/04
405,750.00
346
1.027043
416,722.62
07/02/04
281.29
329
1.025697
288.52
08/03/04
249.08
298
1.023248
254.87
09/02/04
292.35
269
1.020962
298.48
0
SCHEDULE I(C)
$25,000,000
City of Fayetteville, Arkansas
Sales and Use Tax Capital Improvement Bonds
Series 2002
Days To
06/01/05
Future Value
Future Value
Date Debt
Service Reserve Fund
30/360 Day Year
Factor
2.79568805 %
10/04/04
319.02
237
1.018446
324.90
11/02/04
379.30
209
1.016249
385.46
12/02/04
418.37
179
1.013900
424.19
12/31/04
494.26
151
1.011713
500.05
12/31/04
364,500.00
151
1.011713
368,769.47
12/31/04
(364,994.26)
151
1.011713
(369,269.52)
01/04/05
494.26
147
1.011401
499.90
02/02/05
530.31
119
1.009220
535.20
03/02/05
559.94
89
1.006887
563.80
04/04/05
660.24
57
1.004406
663.15
05/03/05
692.84
28
1.002162
694.34
06/01/05
364,500.00
0
1.000000
364,500.00
06/01/05
772.52
0
1.000000
772.52
$25,141.66
($43,472.42)
NOTE: THE COMMENTS AND ASSUMPTIONS CONTAINED IN THE ACCOMPANYING LETTER ARE AN INTEGRAL PART OF THIS SCHEDULE.
SCHEDULE I(D)
$25,000,000
City of Fayetteville, Arkansas
Sales and Use Tax Capital Improvement Bonds
Series 2002
Days To
06/01/05
Future Value
Future Value
Date
Cost of Issuance
30/360 Day Year
Factor
2.79568805 %
06/20/02
($75,000.00)
1,061
1.085265
($81,394.91)
06/20/02
50,000.00
1,061
1.085265
54,263.27
06/20/02
1,485.72
1,061
1.085265
1,612.40
06/20/02
1,465.94
1,061
1.085265
1,590.93
06/20/02
12,800.00
1,061
1.085265
13,891.40
06/20/02
2,000.00
1,061
1.085265
2,170.53
06/25/02
2,195.05
1,056
1.084847
2,381.29
11/06/02
5,080.22
925
1.073942
5,455.86
11/08/02
(26.93)
923
1.073777
(28.92)
11/08/02
26.93
923
1.073777
28.92
$26.93
($29.22)
NOTE: THE COMMENTS AND ASSUMPTIONS CONTAINED IN THE ACCOMPANYING LETTER ARE AN INTEGRAL PART OF THIS SCHEDULE.
■
■
■
SCHEDULE I(E)
U
$25,000,000
• City of Fayetteville, Arkansas
Sales and Use Tax Capital Improvement Bonds
• Series 2002
U
N
■ Days To
06/01/05 Future Value Future Value• @
Date Redemption Fund 30/360 Day Year Factor 2.79568805 %
■ 06/27/02 ($158,896.16) 1,054 1.084680 ($172,351.44)
07/03/02 (128.46) 1,048 1.084178 (139.27)
■ 07/03/02 (261.10) 1,048 1.084178 (283.08)
07/30/02 (188,710.74) 1,021 1.081923 (204,170.44)
08/02/02 (845.37) 1,019 1.081756 (914.48)
• 08/02/02 (0.58) 1,019 1.081756 (0.63)
08/16/02 85,178.99 1,005 1.080589 92,043.44
• 08/27/02 (161,270.48) 994 1.079672 (174,119.26)
09/04/02 (1,642.36) 987 1.079090 (1,772.25)
• 09/04/02 (0.57) 987 1.079090 (0.62)
09/13/02 (85,178.99) 978 1.078341 (91,851.98)
. 09/27/02 (98,938.50) 964 1.077177 (106,574.30)
10/02/02 (2,115.95) 959 1.076762 (2,278.37)
■ 10/02/02 (0.52) 959 1.076762 (0.56)
10/30/02 (155,558.02) 931 1.074439 (167,137.65)
• 11/04/02 (2,879.42) 927 1.074108 (3,092.81)
11/04/02 (0.53) 927 1.074108 (0.57)
11121/02 (1,886.24) 910 1.072701 (2,023.37)
• 11/21102 1,886.24 910 1.072701 2,023.37
11/27/02 (89,266.22) 904 1.072204 (95,713.78)
• 12/03/02 (2,818.13) 898 1.071708 (3,020.21)
12/03/02 (0,40) 898 1.071708 (0.43)
• 12/04/02 (680.60) 897 1.071626 (729.35)
12/04/02 680.60 897 1.071626 729.35
• 12/06/02 (1.12) 895 1.071460 (1.20)
12/27/02 (79,786.50) 874 1.069727 (85,349.74)
■ 12/31/02 717.00 871 1.069479 766.82
12/31/02 945,689.97 871 1.069479 1,011,395.68
■ 12/31/02 (946,406.97) 871 1.069479 (1,012,162.49)
01/03/03 (2,400.21) 868 1.069232 (2,566.38)
01/03/03 (20.29) 868 1.069232 (21.69)
• 02/04/03 (2,885.57) 837 1.066679 (3,077.98)
02/04/03 (21.07) 837 1.066679 (22.47)
03/04/03 (3,293.73) 807 1.064214 (3,505.23)
03/04/03 (19.41) 807 1.064214 (20.66)
• 04/03/03 (4,189.72) 778 1.061836 (4,448.80)
04103/03 (3.40) 778 1.061836 (3.61)
04114/03 2,885.57 767 1.060936 3,061.40
04114/03 3,293.73 767 1.060936 3,494.44
04/14/03 (2,855.57) 767 1.060936 (3,029.58)
04/14/03 (3,239.73) 767 1.060936 (3,437.15)
05/02/03 (4,445.71) 749 1.059464 (4,710.07)
■
■
■
SCHEDULE I(E)
$25,000,000
• City of Fayetteville, Arkansas
Sales and Use Tax Capital Improvement Bonds
.
Series 2002
U
U
■ Days To
06/01/05 Future Value Future Value @
$ Date Redemption Fund 30/360 Day Year Factor 2.79568805 %
■ 06/03/03 (5,030.66) 718 1.056934 (5,317.08)
06/16/03 850,000.00 705 1.055875 897,493.71
06/26/03 (217,977.39) 695 1.055061 (229,979.44)
• 07/02/03 (602.22) 689 1.054573 (635.08)
07/02/03 (47.51) 689 1.054573 (50.10)
07/25/03 (247,694.59) 666 1.052704 (260,749.08)
08/04/03 (942.34) 657 1.051974 (991.32)
08/04/03 (0.11) 657 1.051974 (0.12)
08/27/03 (268,667.34) 634 1.050109 (282,130.07)
• 09/03/03 (1,171.99) 628 1.049623 (1,230.15)
09/03/03 (0.11) 628 1.049623 (0.12)
. 09/25/03 (253,828.26) 606 1.047844 (265,972.46)
10/02/03 (1,369.87) 599 1.047279 (1,434.64)
■ 10/02/03 (0.10) 599 1.047279 (0.10)
10/27/03 (315,312.35) 574 1.045261 (329,583.83)
11/04/03 (1,635.74) 567 1.044697 (1,708.85)
11/04/03 (0.10) 567 1.044697 (0.10)
11/25/03 (287,791.25) 546 1.043007 (300,168.22)
• 12/01/03 1,690,000.00 540 1.042524 1,761,865.97
12/02/03 (1,870.34) 539 1.042444 (1,949.72)
12/02/03 (42,83) 539 1.042444 (44,65)
12/18/03 (267,311.94) 523 1.041158 (278,314.06)
• 12/31/03 75.66 511 1.040195 78.70
12/31/03 301,172.85 511 1.040195 313,278.57
■ 12/31/03 (301,248.51) 511 1.040195 (313,357.27)
01/02/04 (88,959.64) 509 1.040035 (92,521.12)
■ 01/05/03 (421.11) 866 1.069067 (450.19)
01/05/03 (2,073.71) 866 1.069067 (2,216.93)
01/27/04 (444,142.39) 484 1.038032 (461,033.82)
02/03/04 (2,218.84) 478 1.037551 (2,302.16)
02/03/04 (377.07) 478 1.037551 (391.23)
• 02/25/04 (637,884.11) 456 1.035792 (660,715.57)
03/02/04 (2,323.91) 449 1.035233 (2,405.79)
• 03/02/04 (355.96) 449 1.035233 (368.50)
03/29/04 (363,295.32) 422 1.033080 (375,313.17)
• 04/02/04 (388.34) 419 1.032841 (401.09)
04/02/04 (2,733.89) 419 1.032841 (2,823.67)
• 05/04/04 (363.20) 387 1.030295 (374.20)
06/01/04 1,750,000.00 360 1.028152 1,799,266.49
• 06/02/04 (369.93) 359 1.028073 (380.32)
06/25/04 (461,780.20) 336 1.026251 (473,902.41)
SCHEDULE I(E)
$25,000,000
City of Fayetteville, Arkansas
Sales and Use Tax Capital Improvement Bonds
Series 2002
Days To
06/01/05
Future Value
Future Value
Date Redemption Fund
30/360 Day Year
Factor
2.79568805 %
06/30/04 100.74
331
1.025855
103.34
06/30/04 562,118.44
331
1.025855
576,652.24
$12.916.28
($35,495.03)
NOTE: THE COMMENTS AND ASSUMPTIONS CONTAINED IN THE ACCOMPANYING LETTER ARE AN INTEGRAL PART OF THIS SCHEDULE
SCHEDULE I(F)
$25,000,000
City of Fayetteville, Arkansas
Sales and Use Tax Capital Improvement Bonds
Series 2002
Days To
Computational 06/01/05
Future Value
Future Value @
Date
Credits 30/360 Day Year
Factor
2.79568805 %
06/01/03
($1,000.00) 720
1.057097
($1,057.10)
06/01/04
(1,000.00) 360
1.028152
(1,028.15)
06/01/05
(1,000.00) 0
1.000000
(1,000.00)
($3,000.00)
($3,085.25)
NOTE: THE COMMENTS AND ASSUMPTIONS CONTAINED IN THE ACCOMPANYING LETTER ARE AN INTEGRAL PART OF THIS SCHEDULE.
SCHEDULE II(A)
$25,000,000
City of Fayetteville, Arkansas
Sales and Use Tax Capital Improvement Bonds
Series 2002
Purchase Price of Bonds for Yield Purposes
Par
Accrued Interest
Bond Premium/(Discount)
Purchase Price for Arbitrage Purposes
$25,000,000.00
43,048.72
388,105.70
$25,431,154.42
Present value of bond principal and interest from June 20, 2002 using
a discount rate of 2.79568805% $25,431,154.42
Result: Since the present value of all payments of principal and
interest on the bonds from June 20, 2002 to maturity using a discount
rate of 2.79568805% is equal to the purchase price of such
obligations, the yield on the bonds is 2.79568805%.
NOTE: THE COMMENTS AND ASSUMPTIONS CONTAINED IN THE ACCOMPANYING LETTER ARE AN INTEGRAL PART OF THIS SCHEDULE.
SCHEDULE II(B)
$25,000,000
City of Fayetteville, Arkansas
Sales and Use Tax Capital Improvement Bonds
Series 2002
Debt Service and Arbitrage Yield Calculation
Days From
279568805%
Coupon
Total
06/20102
Present Value
Date
Principal
Price
Oiscovnt
Coupon
Interest
Debt Service
30/360 Day Year
Factor
Present Value
12/01/02
$407,830.00
$407,830.00
161
0.98766041
5402,797.54
06/01/03
$6,455,000.00
100.280
$18,074.00
2.000
407,830.00
8.862.83000
341
0.97404478
6,684,703.74
12/01/03
343,280.00
343,280.00
521
0.96061685
329,76055
06101/04
6,365,000.00
103.198
203,552.70
4.000
343,280.00
6,708,280.00
701
0.94737404
6,355,250.35
12/01/04
215,980.00
215,980.00
881
0.93431379
201,793.09
06/01/05
5,275,000.00
103.156
166,479.00
4.000
215,980.00
5,490,980.00
1,061
0.92143359
5,059,573.41
12/01/05
110,480.00
110,480.00
1,241
0.90873095
100,396.60
06/01/06
4,205,000.00
100.000
0.00
3.200
110,480.00
4,315,480.00
1,421
0.89620342
3,867,547.94
12/01/06
43,200.00
43,200.00
1,801
0.88384860
38,182.26
06/01/07
2700,000.00
100.000
0.00
3.200
43200.00
2.743,200.00
1,781
0.87166409
2,391,148.94
525000,000.00
$388,105.70
$2.241.540.00
$27,241,540.00
$25431,154.42
NOTE: THE COMMENTS AND ASSUMPTIONS CONTAINED IN THE ACCOMPANYING LETTER ARE AN INTEGRAL PART OF THIS SCHEDULE.
SCHEDULE II(C)
$25,000,000
City of Fayetteville, Arkansas
Sales and Use Tax Capital Improvement Bonds
Series 2002
Sources and Uses of Funds
Sources of Funds:
Principal Amount of the Bonds
Original Issue Premium/(Discount)
Accrued Interest
Total Sources of Funds
Uses of Funds:
Project Construction Fund
Revenue Bond Fund
Debt Service Reserve Fund
Cost of Issuance
Underwriter's Discount
Total Uses of Funds
$25,000,000.00
388,105.70
43,048.72
$25,431,154.42
$23,888,105.70
43,048.72
1,250,000.00
75,000.00
175,000.00
$25,431,154.42
NOTE. THE COMMENTS AND ASSUMPTIONS CONTAINED IN THE ACCOMPANYING LETTER ARE AN INTEGRAL PART OF THIS SCHEDULE.