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HomeMy WebLinkAbout149-00 RESOLUTIONRESOLUTION NO. 149-00 MICR OFXLMED A RESOLUTION APPOINTING UNDER RFP#00-18, BANK OF OKLAHOMA AS THE TRUSTEE AND PAYING AGENT, FOR THE $10,000,000 CITY OF FAYETTEVILLE, WATER AND SEWER SYSTEM REVENUE BONDS, SERIES 2000, WITH AN ANNUAL SERVICE COST OF $4,500. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS* Section 1. That the City Council hereby appoints under RFP#00-18, Bank of Oklahoma as the trustee and paying agent, for the $10,000,000 City of Fayetteville, Water and Sewer System Revenue Bonds, Series 2000, with an annual service cost of $4,500; and authorizes the Mayor and City Clerk to execute an agreement for said services. A copy of the agreement is attached hereto marked Exhibit "A" and made a part hereof. PASSED AND APPROVED this 24th day of October , 2000. ATTEST: By: APPROVED /Eft By: Fred Hanna, Mayor NAME OF FILE: _ CROSS REFERENCE: Date Contents of File Initials D i RESOLUTION NO, 149-00 A RESOLUTION APPOINTING UNDER RFP#00-18, BANK OF OKLAHOMA AS THE TRUSTEE AND PAYING AGENT, FOR THE $10,000,000 CITY OF FAYETTEVILLE, WATER AND SEWER SYSTEM REVENUE BONDS, SERIES 2000, WITH AN ANNUAL SERVICE COST OF $4,500. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council hereby appoints under RFP#00-18, Bank of Oklahoma as the trustee and paying agent, for the $10,000,000 City of Fayetteville, Water and Sewer System Revenue Bonds, Series 2000, with an annual service cost of $4,500; and authorizes the Mayor and City Clerk to execute an agreement for said services. A copy of the agreement is attached hereto marked Exhibit "A" and made a part hereof. PASSED AND APPROVED this 24th day of October , 2000. APPROVED` f By: ATTEST': By: Fred Hanna, Mayor NAME OF FILE: m 7( ,_ / 177 - CROSS REFERENCE: Date Contents of File Initials /G;7 $ov /-79--�i� fi 10-19680.08 • TRUST INDENTURE Dated as of November 1, 2000 Between CITY OF FAYETTEVILLE, ARKANSAS and BANK OF OKLAHOMA, N.A., as Trustee $10,000,000 City of Fayetteville, Arkansas Water and Sewer System Subordinate Revenue Bonds Series 2000 EXECUTION COPY TABLE OF CONTENTS Page No. Parties 1 Recitals 1 Granting Clauses 1 Section 101. Section 102. Section 201. Section 202. Section 203. Section 204. Section 205. Section 206. Section 207. Section 208. Section 209. Section 210. Section 301. Section 302. Section 303. Section 304. Section 305. Section 401. Section 402. 10-19680.08 ARTICLE I DEFINITIONS, RULES OF CONSTRUCTION Definitions of Words and Terms 2 Rules of Construction 10 ARTICLE II THE BONDS Authorization and Terms of Bonds 11 Interest Rates and Interest Rate Periods 13 Limited Obligations 18 Execution and Authentication 18 Registration, Transfer and Exchange 19 Persons Deemed Owners of Bonds 20 Mutilated, Destroyed, Lost and Stolen Bonds 20 Cancellation of Bonds 20 Book -Entry Bonds; Securities Depository 21 Other Indebtedness 22 ARTICLE III REDEMPTION OF BONDS Redemption of Bonds Prior to Maturity 22 Election to Redeem, Notice to Trustee 24 Selection of Bonds to be Redeemed; Bonds Redeemed in Part 24 Notice of Redemption 25 Deposit of Redemption Price; Bonds Payable on Redemption 26 ARTICLE IV TENDER AND PURCHASE OF BONDS Optional Tenders for Purchase 27 Mandatory Tenders for Purchase 28 Section 403. Section 404. Section 405. Section 501. Section 501A. Section 502. Section 503. Section 504. Section 504A. Section 505. Section 506. Section 507. Section 508. Section 509. Section 510. Section 601. Section 602. Section 603.. Section 604. Section 605. Section 606. Section 607. Section 701. Section 702. Section 703. Section 704. Section 705. Section 706. Section 707. Section 708. Section 709. Section 710. Trust Indenture 10-19680.08 Remarketing and Purchase of Tendered Bonds 29 Remarketing Agent 36 Tender Agent 38 ARTICLE V FUNDS AND ACCOUNTS Creation of Funds and Accounts 39 Confirmation of Prior Funds 40 Deposit of Bond Proceeds 40 Project Fund 41 Issuer Payments; Debt Service Fund 42 Debt Service Reserve Fund 46 Bond Purchase Fund 46 Rebate Fund 46 Payments Due on Non -Business Days 47 Nonpresentment of Bonds 47 Investment of Moneys 47 Records and Reports of Trustee 48 ARTICLE VI LIQUIDITY FACILITY Liquidity Facility 48 Altemate Liquidity Facility 49 Draws on Liquidity Facility 50 Surrender of Liquidity Facility 51 Rights of Liquidity Provider 51 Limitation on Rights of the Liquidity Provider 52 Issuer Purchase of Bonds 52 ARTICLE VII REPRESENTATIONS AND COVENANTS Representations by the Issuer 52 Survival of Representations 53 Issuer's Authority 53 Payment of Bonds 53 Performance of Covenants 54 Enforcement of Rights 54 Inspection of Books 54 Tax Covenants 54 Continuing Disclosure 55 Tax Covenants 55 ii Section 711. Rate Covenant 55 ARTICLE VIII DEFAULT AND REMEDIES Section 801. Section 802. Section 803. Section 804. Section 805. Section 806. Section 807. Section 808. Section 809. Section 901. Section 902. Section 903. Section 904. Section 905. Section 906. Section 907. Section 908. Section 909. Section 910. Section 911. Section 1001. Section 1002. Section 1003. Section 1004. Section 1005. Section 1006. Section 1101. Trust Indenture 10-19680.08 Events of Default 56 Acceleration of Maturity; Rescission and Annulment 57 Exercise of Remedies by the Trustee 58 Limitation on Suits by Bondowners 59 Control of Proceedings by Bondowners 60 Application of Moneys Collected 61 Rights and Remedies Cumulative 61 Waiver of Past Defaults 62 Advances by Trustee 62 ARTICLE IX THE TRUSTEE Acceptance of Trusts; Certain Duties and Responsibilities 63 Certain Rights of Trustee 64 Notice of Defaults 65 Compensation and Reimbursement 66 Corporate Trustee Required; Eligibility 67 Resignation and Removal of Trustee 67 Appointment of Successor Trustee 68 Acceptance of Appointment by Successor 69 Merger, Consolidation and Succession to Business 69 Co -Trustees and Separate Trustees 69 Designation of Alternate Paying Agents 70 ARTICLE X SUPPLEMENTAL INDENTURES Supplemental Indentures without Consent of Bondowners 71 Supplemental Indentures with Consent of Bondowners 72 Execution of Supplemental Indentures 73 Effect of Supplemental Indentures 73 Reference in Bonds to Supplemental Indentures 74 Remarketing Agent Consent to Supplemental Indentures 74 ARTICLE XI SATISFACTION AND DISCHARGE Payment, Discharge and Defeasance of Bonds 74 iii Section 1102. Section 1103. Section 1201. Section 1202. Section 1203. Section 1204. Section 1205. Section 1206. Section 1207. Section 1208. Section 1209. Satisfaction and Discharge of Indenture 75 Rights Retained After Discharge 76 ARTICLE XII MISCELLANEOUS PROVISIONS Notices 76 Notices to Liquidity Provider and Rating Agencies 78 Acts of Bondowners 78 Further Assurances 79 Immunity of Officers, Employees and Members of Issuer 79 Benefit of Indenture 79 Severability 80 Execution in Counterparts 80 Governing Law 80 Signatures 81 Exhibit A Exhibit B Exhibit C Trust Indenture 10-19680.08 Form of Bonds A-1 Form of Disbursement Request — Costs of Issuance B-1 Form of Disbursement Request — Costs of the Project C-1 * * * iv TRUST INDENTURE TRUST INDENTURE dated as of November 1, 2000 (the "Indenture"), between the CITY OF FAYETTEVILLE, ARKANSAS, a public instrumentality under the laws of the State of Arkansas (the "Issuer"), and BANK OF OKLAHOMA, N.A., a national banking association having its principal corporate trust office located in Tulsa, Oklahoma, as trustee (the Trustee"); RECITALS 1. The Issuer is authorized under the Constitution and laws of the State of Arkansas, including particularly Arkansas Code Annotated §§ 14-164-401 et seq., §§ 14-234-201 et seq., §§ 14-235-201 et seq., and §§ 19-9-601 et seq., as amended (collectively the "Act"), and an ordinance duly adopted by its City Council on October 17, 2000, to issue $10,000,000 principal amount of Water and Sewer System Subordinate Revenue Bonds, Series 2000 (the "Bonds"), under this Indenture to provide funds to (a) finance and reimburse the costs of wastewater treatment facilities of the Issuer described herein (the "Project"), (b) fund a debt service reserve, and (c) pay costs related to the issuance of the Bonds. 2. A Standby Bond Purchase Agreement of even date herewith (the "Liquidity Facility") has been entered into by and among the Issuer, the Trustee and Bank of America, N.A. (the "Liquidity Provider") in order to provide liquidity support for the payment of the purchase price of Bonds tendered for purchase. 3. All things necessary to make the Bonds, when authenticated by the Trustee and issued as provided in this Indenture, the valid, legal and binding obligations of the Issuer, and to constitute this Indenture a valid, legal and binding pledge and assignment of the property, rights, interests and revenues made herein for the security of the payment of the Bonds, have been done and performed, and the execution and delivery of this Indenture and the execution and issuance of the Bonds, subject to the terms of this Indenture, have in all respects been duly authorized. GRANTING CLAUSES The Issuer, in consideration of the premises, the acceptance by the Trustee of the trusts created by this Indenture, the purchase and acceptance of the Bonds by the owners thereof, and the issuance and delivery of the Liquidity Facility, and to declare the terms and conditions upon which the Bonds are to be authenticated, issued and delivered, to secure the payment of all of the Bonds issued and Outstanding under this Indenture, to secure the performance and observance by the Issuer of all the covenants, agreements and conditions contained in this Indenture, and to secure the payment of the obligations payable to the Liquidity Provider under the Liquidity Facility, pledges and assigns to the Trustee, and grants a security interest to the Trustee in, the following described property (said property, together with the statutory second mortgage lien on the water transmission and distribution portion of the City's water and sewer system, as prescribed by the Act, is referred to herein as the "Trust Estate"): 10-19680.08 • (a) the Net Revenues; provided, however, such pledge of Net Revenues is junior and subordinate to the pledge of Net Revenues securing the Prior Indebtedness; (b) all moneys and securities (except moneys and securities held in the Rebate Fund and the Bond Purchase Fund) from time to time held by the Trustee in the funds and accounts under the terms of this Indenture; and (c) any and all other property (real, personal or mixed) of every kind and nature from time to time, by delivery or by writing of any kind, pledged, assigned or transferred as and for additional security under this Indenture by the Issuer or by anyone in its behalf or with its written consent, to the Trustee, which is hereby authorized to receive any and all such property at any and all times and to hold and apply the same subject to the terms hereof. The Trustee shall hold in trust and administer the Trust Estate upon the terms and conditions set forth in this Indenture for the equal and pro rata benefit and security of each and every owner of Bonds, without preference, priority or distinction as to participation in the lien, benefit and protection of this Indenture of one Bond over or from the others, except as otherwise expressly provided herein, and for the benefit, protection and security of the Liquidity Provider with respect to the obligations of the Issuer under the Liquidity Facility, provided that the benefit, protection and security provided by this Indenture for the Liquidity Provider shall be subordinate in each and every respect to the benefit, protection and security provided by this Indenture for the owners of the Bonds. NOW, THEREFORE, the Issuer covenants and agrees with the Trustee, for the equal and proportionate benefit of the respective owners of the Bonds and for the benefit of the Liquidity Provider, that all Bonds are to be issued, authenticated and delivered and the Trust Estate is to be held and applied by the Trustee, subject to the further covenants, conditions and trusts hereinafter set forth, as follows: ARTICLE I DEFINITIONS, RULES OF CONSTRUCTION Section 101. Definitions of Words and Terms. For all purposes of this Indenture, except as otherwise provided or unless the context otherwise requires, the following words and terms used in this Indenture shall have the following meanings: "Accountant" means a firm of independent certified public accountants of recognized national standing selected from time to time by the Issuer, which may be the firm of accountants that regularly audits the books of the Issuer. "Act" means Arkansas Code Annotated §§ 14-164-401 et seq., §§ 14-234-201 et seq., §§ 14-235-201 et seq. and §§ 19-9-601 et seq., as from time to time amended. 10-19680.08 2 "Alternate Liquidity Facility" means any substitute or replacement liquidity facility providing liquidity support to the Issuer for the payment of the purchase price of Bonds tendered for purchase, delivered in accordance with the provisions of this Indenture in substitution and replacement for a Liquidity Facility. "Bond" or "Bonds" means any bond or bonds of the series of Water and Sewer System Subordinate Revenue Bonds, Series 2000, issued, authenticated and delivered under and pursuant to this Indenture. "Bond Payments" means the payments to be made by the Issuer pursuant to Section 504(b) hereof. "Bond Purchase Agreement" means the Bond Purchase Agreement relating to the Bonds between the Issuer and the Underwriter. "Bond Purchase Fund" means the fund by that name created by Section 501 hereof, including within such fund the "Remarketing Account", the "Liquidity Provider Purchase Account" and the "Issuer Purchase Account." "Book -Entry System" means the book -entry system maintained by the Securities Depository described in Section 209 of this Indenture. "Business Day" means a day other than (a) a Saturday, Sunday or legal holiday, or (b) a day on which banking institutions located in New York, New York, or in any city in which the corporate trust office or payment office of the Trustee, the payment office of the Liquidity Provider for draws under the Liquidity Facility or the primary office of the Remarketing Agent are located, are required or authorized by law to remain closed, or (c) a day on which the New York Stock Exchange or the Securities Depository is closed. "Commercial Paper Rate" means the per annum interest rate on each Bond during a Commercial Paper Rate Period determined as provided in Section 202 hereof. "Commercial Paper Rate Period" means with respect to any Bond each period determined as provided in Section 202 hereof during which such Bond accrues interest at a Commercial Paper Rate. "Conversion Date" means the day on which a particular type of interest rate (Le., a Weekly Rate, Commercial Paper Rate or Fixed Rate), becomes effective for Bonds and the Bonds begin to accrue interest at that type of interest rate pursuant to Section 202 hereof, and which day is immediately preceded by a day on which such Bonds did not accrue interest at that type of interest rate. "Costs of Issuance" means issuance costs with respect to the Bonds that are permitted under the Act to be paid out of proceeds of the Bonds. "Costs of the Project" means all reasonable or necessary costs and expenses of the Project that are permitted under the Act to be paid out of proceeds of the Bonds. 10-19680.08 3 "Debt Service Fund" means the fund by that name created by Section 501 of this Indenture. "Debt Service Reserve Fund" means the fund by that name created by Section 501 of this Indenture. "Electronic Notice" means notice given by facsimile transmission or by telephone (promptly confirmed in writing). "Financing Documents" means this Indenture, the Bonds, the Bond Purchase Agreement, the Official Statement relating to the Bonds, the Tax Compliance Agreement, the Liquidity Facility, the Remarketing Agreement, and any and all future renewals and extensions or restatements of, or amendments or supplements to, any of the foregoing; provided, however, that when the words "Financing Documents" are used in the context of the authorization, execution, delivery, approval or performance of Financing Documents by a particular party, the same shall mean only those Financing Documents that provide for or contemplate authorization, execution, delivery, approval or performance by such party. "Fixed Rate" means the per annum interest rate on the Bonds during the Fixed Rate Period determined as provided in Section 202 hereof. "Fixed Rate Period" means with respect to the Bonds when converted to the Fixed Rate, the period from the Conversion Date to the Maturity Date, unless earlier redeemed. "Government Obligations" means the following: (a) 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; and (b) evidences of direct ownership of a proportionate or individual interest in future interest or principal payments on specified direct obligations of, or obligations or which the full and timely payment of the principal of and interest is unconditionally guaranteed by, the United States of America, which obligations are held by a bank or trust company organized and existing under the laws of the United States of America or any state thereof in the capacity of custodian in form and substance satisfactory to the Trustee. "Gross Revenues" means all fees, tolls, rates, rentals and charges levied and collected in connection with, and all other income and receipts of whatever kind or character derived by the Issuer from, the operation of the System. Gross 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, Gross Revenues shall not include acreage, connection, front -footage, tap -on, assessment and similar fees, charges, contributions or grants derived by the Issuer in connection with the provision of or payment for capital improvements constituting a part of the System. 10-19680.08 4 "Indenture" means this Trust Indenture as originally executed by the Issuer and the Trustee, as from time to time amended and supplemented by Supplemental Indentures in accordance with the provisions of this Indenture. "Interest Payment Date" means: (a) with respect to Bonds accruing interest at Weekly Rates, the 1St day of each calendar month (whether or not a Business Day) following the Weekly Rate Period for which interest is payable, and any day which is a Conversion Date from a Weekly Rate Period; provided, however, that the first Interest Payment Date shall be January 1, 2001; (b) with respect to Bonds accruing interest at a Commercial Paper Rate, the 1g Business Day after the last day of each Commercial Paper Rate Period applicable thereto, and any date which is a Conversion Date from a Commercial Paper Rate Period; (c) with respect to the Bonds when accruing interest at the Fixed Rate, each February 15 and August 15 commencing with the first of such dates which is at least 3 months after the Conversion Date through and including the Maturity Date; and (d) any redemption date, acceleration date and the Maturity Date. "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended, and, when appropriate, any statutory predecessor or successor thereto, and all applicable regulations thereunder and any applicable official rulings, announcements, notices, procedures and judicial determinations relating to the foregoing. "Issuer" means the City of Fayetteville, Arkansas, and its successors and assigns or any body, agency or instrumentality of the State succeeding to or charged with the powers, duties and functions of the Issuer. "Issuer Bonds" means Bonds that are registered in the name of the Issuer or held for the account of the Issuer, and that are not Liquidity Provider Bonds. "Issuer Representative" means the Mayor or the Administrative Services Director of the Issuer and any other person or persons at the time designated to act on behalf of the Issuer in matters relating to this Indenture as evidenced by a written certificate furnished to the Trustee containing the specimen signature of such person or persons and signed on behalf of the Issuer by the Mayor. Such certificate may designate an altemate or alternates each of whom shall be entitled to perform all duties of the Issuer Representative. "Liquidity Facility" means initially the Standby Bond Purchase Agreement dated as of November 1, 2000, entered into by and among the Liquidity Provider, the Issuer and Bank of Oklahoma, N.A., as Trustee and as tender agent, and delivered to the Trustee concurrently with the original issuance of the Bonds, and any extensions thereof, and upon the issuance and delivery of an Altemate Liquidity Facility in accordance with Section 602 hereof, "Liquidity 10-19680.08 5 • Facility" shall include such Alternate Liquidity Facility, and any subsequent extensions or replacements thereof. "Liquidity Provider" means Bank of America, N.A., a national banking association, in its capacity as provider of the initial Liquidity Facility, and its successors and assigns, and if an Alternate Liquidity Facility is issued, the issuer of such Alternate Liquidity Facility, and its successors and assigns. "Liquidity Provider Bonds" means Bonds purchased with moneys drawn on the Liquidity Facility and held for the benefit of the Liquidity Provider pursuant to Section 403(c)(6) hereof. by law. "Maturity Date" means November I, 2006. "Maximum Rate" means the lesser of 11.0% per annum or the maximum rate permitted "Net Revenues" means, for any period, Gross Revenues less Operating Expenses for such period. "Officer's Certificate" means a written certificate of the Issuer signed by the Issuer Representative, which certificate shall be deemed to constitute a representation of, and shall be binding upon, the Issuer with respect to matters set forth therein, and which certificate in each instance, including the scope, form, substance and other aspects thereof, is acceptable to the Trustee. "Operating Expenses" means, for any period, all ordinary and necessary expenses of operation, repair, maintenance and insuring of the System under generally accepted accounting principles, except that there shall not be included (i) any allowance for depreciation, (ii) any deposits or transfers to the credit of (a) the Debt Service Fund or to any fund or account created for the payment of debt service on the Prior Indebtedness or any subordinated indebtedness secured by a pledge of Net Revenues as permitted hereunder, (b) the Debt Service Reserve Fund or any debt service reserve fund or account created in connection with the Prior Indebtedness or any subordinated indebtedness secured by a pledge of Net Revenues as permitted hereunder, 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 Gross Revenues. Operating Expenses shall specifically include obligations of the Issuer to the Beaver Water District of Benton and Washington Counties, Arkansas. "Operation and Maintenance Fund" means the fund of the Issuer by that name created and confirmed in the ordinances authorizing the Prior Indebtedness. "Opinion of Bond Counsel" means a written opinion of the legal counsel who rendered the initial Opinion of Bond Counsel required by Section 201(0 hereof or any other legal counsel acceptable to the Issuer and the Trustee who shall be nationally recognized as expert in matters pertaining to the validity of obligations of governmental issuers and the exemption from federal income taxation of interest on such obligations. 10-19680.08 6 "Opinion of Counsel" means a written opinion of any legal counsel having expertise in the matters covered in such opinion and acceptable to the Issuer and the Trustee, who may be an employee of or counsel to the Issuer or the Trustee. "Outstanding" means when used with respect to Bonds, as of the date of determination, all Bonds theretofore authenticated and delivered under this Indenture, except: (a) Bonds theretofore cancelled by the Trustee or delivered to the Trustee for cancellation as provided in Section 207 of this Indenture; (b) Bonds for whose payment or redemption money or Government Obligations in the necessary amount has been deposited with the Trustee in trust for the owners of such Bonds as provided in Section 1101 of this Indenture, provided that, if such Bonds are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; (c) Bonds in exchange for or in lieu of which other Bonds have been authenticated and delivered under this Indenture; (d) Bonds alleged to have been destroyed, Lost or stolen which have been paid as provided in Section 207 of this Indenture; and (e) Bonds that are not delivered upon mandatory redemption or mandatory tender has occurred. "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. "Permitted Investments" means, if and to the extent the same are at the time legal for investment of funds held under this Indenture: (a) Government Obligations; (b) bonds, notes or other obligations of any state of the United States 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, bankholding company, savings and loan association or trust company organized under the laws of the United States 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: 10-19680.08 7 • (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 Obligations, 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, bankholding company, savings and loan association, trust company or other financial institution organized under the laws of the United States or any state thereof (including the Trustee or any of its affiliates), that are continuously and fully secured by Government Obligations 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 Obligations which are segregated in a custodial or trust account for the benefit of the Trustee, and further provided that Government Obligations acquired pursuant to such repurchase agreements shall be valued at the lower of the then current market value thereof or the repurchase price thereof set forth in the applicable repurchase agreement; (e) short term discount obligations of the Federal National Mortgage Association and the Government National Mortgage Association; and (0 money market mutual funds (1) that invest in Government Obligations 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 service. "Person" means any natural person, firm, association, corporation, limited liability company, partnership, joint stock company, joint venture, trust, unincorporated organization or firm, or a government or any agency or political subdivision thereof or other public body. "Prior Indebtedness" means the Series 1994 Bonds, the Series 1999 Bonds and any additional indebtedness issued and secured by the Issuer on a parity therewith. "Project" means the wastewater treatment facilities of the Issuer, including land, buildings, improvements and equipment, the costs of which will be paid or refinanced in whole or in part, or for which the Issuer will be reimbursed in whole or in part, from the proceeds of the sale of the Bonds, and which costs are authorized under the Act; provided, however, that the Issuer may make changes to the Project. "Project Fund" means the fund by that name created by Section 501 of this Indenture, including within such fund the "Costs of Issuance Account" and the "Project Account." 10-19680.08 8 • • "Rating Agency" means, if the Bonds are rated, Moody's Investors Service if such agency's ratings are in effect with respect to the Bonds, Standard & Poor's Ratings Services if such agency's ratings are in effect with respect to the Bonds, and Fitch, Inc., if such agency's ratings are in effect with respect to the Bonds, and their respective successor and assigns If any such corporation ceases to act as a securities rating agency, the Issuer may appoint any nationally recognized securities rating agency as a replacement. "Rebate Fund" means the fund by that name created by Section 501 hereof. "Record Date" means the close of business (a) in the case of Bonds accruing interest at Weekly or Commercial Paper Rates, the ls` Business Day immediately preceding an Interest Payment Date, or (b) in the case of Bonds accruing interest at the Fixed Rate, the 1st day (whether or not a Business Day) of the calendar month of each Interest Payment Date. "Remarketing Agent" means initially, Banc of America Securities LLC, and subsequently any Person meeting the qualifications of and designated from time to time to act as successor Remarketing Agent under Section 404 hereof. "Remarketing Agreement" means the Remarketing Agreement as originally executed by the Issuer and the Remarketing Agent, as from time to time amended and supplemented in accordance with the provisions of the Remarketing Agreement and this Indenture. "Renewal and Replacement Fund" means the fund of the Issuer by that name created and confirmed in the ordinances authorizing the Prior Indebtedness. "Revenue Fund" means the fund of the Issuer by that name created and confirmed in the ordinances authorizing the Prior Indebtedness and into which all Gross Revenues are to be deposited. "Securities Depository" means The Depository Trust Company, New York, New York, or its nominee, and its successors and assigns. "Series 1994 Bonds" means the Issuer's Water and Sewer System Revenue Bonds, Series 1994. "Series 1999 Bonds" means the Issuer's Water and Sewer System Revenue Refunding Bonds, Series 1999. "State" means the State of Arkansas. "Supplemental Indenture" means any indenture supplemental or amendatory to this Indenture entered into by the Issuer and the Trustee pursuant to Article X of this Indenture. "System" means the Issuer's combined water and sewer utility system. "Tax Compliance Agreement" means the Tax Compliance Agreement of even date herewith between the Issuer and the Trustee, as from time to time amended in accordance with the provisions thereof. 10-19680.08 9 • • "Trust Estate" means the Trust Estate described in the Granting Clauses of this Indenture. "Trustee" means Bank of Oklahoma, N.A., and its successor or successors, and any other corporation or association which at any time may be substituted in its place pursuant to and at the time serving as trustee under this Indenture. "Underwriter" means Banc of America Securities LLC, the purchaser of the Bonds under the Bond Purchase Agreement. "United States Bankruptcy Code" means the United States Bankruptcy Reform Act of 1978, as amended from time to time, or any substitute or replacement legislation. "Weekly Rate" means the per annum interest rate on the Bonds during a Weekly Rate Period determined on a weekly basis as provided in Section 202 hereof. "Weekly Rate Period" means each period described in Section 202 during which Bonds accrue interest at a Weekly Rate. Section 102. Rules of Construction. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires, the following rules of construction apply in construing the provisions of this Indenture: (a) The terms defined in this Article include the plural as well as the singular. (b) All accounting terms not otherwise defined herein shall have the meanings assigned to them, and all computations herein provided for shall be made, in accordance with generally accepted accounting principles. (c) All references herein to "generally accepted accounting principles" refer to such principles in effect on the date of the determination, certification, computation or other action to be taken hereunder using or involving such terms. (d) All references in this instrument to designated "Articles," "Sections" and other subdivisions are to be the designated Articles, Sections and other subdivisions of this instrument as originally executed. (e) The words "herein," "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. (f) The Article and section headings herein and in the Table of Contents are for convenience only and shall not affect the construction hereof. (g) Whenever an item or items are listed after the word "including," such listing is not intended to be a listing that excludes items not listed. 10-1968008 10 ARTICLE II THE BONDS Section 201. Authorization and Terms of Bonds. • (a) Authorization and Amount. There shall be issued under and secured by this Indenture a series of bonds designated "Water and Sewer System Subordinate Revenue Bonds, Series 2000" (the "Bonds"), in the aggregate principal amount of $10,000,000 for the purpose of providing funds to (1) finance, refinance and reimburse Costs of the Project, and (2) pay Costs of Issuance. (b) Date and Maturity. The Bonds shall be dated November 1, 2000, shall bear interest from the date of their original issuance and delivery, and shall mature on the Maturity Date, subject to prior redemption and optional and mandatory tender for purchase, as provided in Article III and Article IV hereof. (c) Interest. The Bonds shall bear interest from their date or from the most recent Interest Payment Date to which interest has been paid or duly provided for, at Weekly Rates, Commercial Paper Rates or the Fixed Rate determined in accordance with Section 202 hereof, payable on each Interest Payment Date as herein provided until payment of the principal or redemption price thereof is made or provided for, whether at maturity, upon redemption, acceleration or otherwise. Interest on the Bonds shall be payable in arrears on each Interest Payment Date, commencing on January 1, 2001. The amount of interest payable with respect to any Bonds on any Interest Payment Date shall be computed (1) during Weekly Rate Periods or Commercial Paper Rate Periods, on the basis of a 365- or 366 -day year for the number of days actually elapsed, based on the calendar year in which the Commercial Paper Rate Period or the Weekly Rate Period commences, and (2) during the Fixed Rate Period, on the basis of a 360 -day year of 12 30 -day months. (d) Method and Place of Payment. The Trustee shall act as paying agent for the purpose of effecting payment of the principal of, redemption premium, if any, and interest on the Bonds. The principal of, redemption premium, if any, and interest on the Bonds shall be payable in any coin or currency of the United States of America which on the respective dates of payment thereof is legal tender for the payment of public and private debts. The principal of and the redemption premium, if any, on all Bonds shall be payable by check or draft at maturity or upon earlier redemption to the Persons in whose names such Bonds are registered on the bond register maintained by the Trustee at the Maturity Date or redemption date thereof, upon the presentation and surrender of such Bonds at the principal corporate trust office or designated payment office of the Trustee. 10-19680.08 11 The interest payable on each Bond on any Interest Payment Date shall be } paid by the Trustee to the registered owner of such Bond as shown on the bond register at the close of business on the Record Date, (1) by check or draft mailed to such registered owner at the address as it appears on the bond register or at such other address as is furnished to the Trustee in writing by such owner, or (2) with respect to Bonds accruing interest at Weekly Rates or Commercial Paper Rates, and with respect to Bonds accruing interest at the Fixed Rate if such Bonds are held by a Securities Depository, or at the written request addressed to the Trustee by any registered owner of Bonds in the aggregate principal amount of at least $1,000,000, by electronic wire transfer in immediately available funds to a bank in the continental United States for credit to the ABA routing number and account number filed with the Trustee no later than 5 Business Days before the applicable Record Date. (e) Form and Denominations. The Bonds shall be issuable as fully registered bonds without coupons in substantially the form set forth in Exhibit A attached to this Indenture, with such necessary or appropriate variations, omissions and insertions as are permitted or required by this Indenture. The Bonds may have endorsed thereon such legends or text as may be necessary or appropriate to conform to any applicable rules and regulations of any governmental authority or any custom, usage or requirement of law with respect thereto. The Bonds, when bearing interest at a Weekly Rate, shall be in the denomination of $100,000 or any integral multiple of $100,000 in excess thereof, when bearing interest at a Commercial Paper Rate, shall be in denominations of $100,000 or any integral multiple of $1,000 in excess thereof, and, when bearing interest at a Fixed Rate, shall be in the denomination of $5,000 or any integral multiple thereof. The Bonds shall be numbered from R -I consecutively upward in order of issuance or in such other manner as the Trustee shall designate, and shall bear appropriate "CUSIP" identification numbers (if then generally in use). (f) Delivery. The Bonds shall be executed in the manner set forth herein and delivered to the Trustee for authentication, but prior to or simultaneously with the authentication and delivery of the Bonds by the Trustee, the following documents shall be filed with the Trustee: (1) A copy, certified by the City Clerk of the Issuer, of the ordinance adopted by the Issuer authorizing the issuance of the Bonds and the execution of this Indenture, the Tax Compliance Agreement, the Liquidity Facility and any other Financing Documents to which it is a party. (2) An original executed counterpart of this Indenture, the Tax Compliance Agreement and the other Financing Documents. (3) The original executed Liquidity Facility. 10-19680.08 12 (4) A request and authorization of the Issuer to the Trustee to authenticate the Bonds and deliver said Bonds to the purchasers therein identified upon payment to the Trustee, for the account of the Issuer, of the purchase price thereof. The Trustee shall be entitled to rely conclusively upon such request and authorization as to the names of the purchasers and the amounts of such purchase price. (5) The Opinions of Bond Counsel, dated the date of original issuance of the Bonds, in substantially the form required by the Bond Purchase Agreement. (6) Such other opinions, certificates, statements, receipts and documents as the Trustee shall reasonably require for the delivery of the Bonds. When the documents specified above have been filed with the Trustee, and when the Bonds shall have been executed and authenticated as required by this Indenture, the Trustee shall deliver the Bonds to or upon the order of the Underwriter, but only upon payment to the Trustee of the purchase price of the Bonds. The proceeds of the sale of the Bonds, including accrued interest and premium thereon, if any, shall be immediately paid over to the Trustee, and the Trustee shall deposit and apply such proceeds as provided in Article V hereof. Section 202. Interest Rates and Interest Rate Periods. The Bonds shall bear interest at a Weekly Rate, Commercial Paper Rate or Fixed Rate, determined as provided in this Section; except that in no event will the interest rate on any Bonds exceed the Maximum Rate. All Bonds shall accrue interest at a Weekly Rate on the date of original issuance of the Bonds and thereafter unless and until the rate period for the Bonds is converted to a different rate period pursuant to this Section. All determinations of interest rates and rate periods pursuant to this Section shall be conclusive and binding upon the Issuer, the Trustee, the Liquidity Provider and the registered owners and beneficial owners of the Bonds to which such rates are applicable. The Bonds may operate at any time in any one type of rate period, provided that all Bonds shall operate in the same type of rate period at any given time. Upon any conversion to a Fixed Rate, no Liquidity Facility will be required under this Indenture. (a) Weekly Rates. A Weekly Rate shall be determined for each Weekly Rate Period as follows: (1) The Remarketing Agent shall determine each Weekly Rate on the Bonds and shall notify the Trustee and the Issuer of such rate by Electronic Notice by 11:00 a.m., Arkansas time, on the V' Business Day preceding the commencement date of the Weekly Rate Period to which it relates. The Remarketing Agent shall determine the interest rate for the Bonds for each Weekly Rate Period as the lowest rate of interest which, in the judgment of the Remarketing Agent, would cause the Bonds to have a market value as of the date of determination equal to the principal amount thereof, plus accrued interest, taking into account prevailing market conditions; provided that in no event will the interest rate on any Bonds exceed the Maximum Rate. The Remarketing Agent shall confirm the 13 interest rate in effect for the Bonds by telephone to the registered owner of any Bond, upon request. (2) The Weekly Rate for each Weekly Rate Period shall be effective from and including the commencement date thereof and remain in effect to and including the last day thereof. Weekly Rate Periods shall commence on a Thursday (except that the initial Weekly Rate Period shall begin on the day of original issuance and delivery of the Bonds) and shall end on Wednesday of the following week and each Weekly Rate Period shall be followed by another Weekly Rate Period until the rate period of the Bonds is converted to another type of rate period; provided that (A) in the case of a conversion to a Weekly Rate Period from a different rate period, the Weekly Rate Period shall commence on the Conversion Date and shall end on Wednesday of the following week; (B) in the case of a conversion from a Weekly Rate Period to a different rate period, the last Weekly Rate Period prior to conversion shall end on the day immediately preceding the Conversion Date to the new rate period. (3) If the Remarketing Agent fails for any reason to determine the Weekly Rate for any Weekly Rate Period, the Weekly Rate in effect for the Bonds for such Weekly Rate Period will be the percentage per annum equal to the current Bond Market Association swap index rate as published in The Bond Buyer (or if The Bond Buyer or such index is no longer published, such other published similar index determined by the Remarketing Agent to be appropriate), plus 15 basis points. (b) Commercial Paper Rates. Commercial Paper Rates and Commercial Paper Rate Periods for the Bonds shall be determined as follows: (1) The Remarketing Agent shall establish the Commercial Paper Rate on a Bond for a specific Commercial Paper Rate Period, and shall notify the Trustee and the Issuer of such Commercial Paper Rate by Electronic Notice by 11:00 a.m., Arkansas time, on the V Business Day of that Commercial Paper Rate Period. The Remarketing Agent shall determine the Commercial Paper Rate for each Commercial Paper Rate Period as the lowest rate of interest which, in the judgment of the Remarketing Agent, would cause the Bonds to have a market value as of the date of determination equal to the principal amount thereof, taking into account prevailing market conditions. The Trustee or the Remarketing Agent shall confirm the interest rate in effect for each Bond by telephone to the registered owner of such Bond, upon request. (2) The Remarketing Agent shall determine the Commercial Paper Rate Period applicable to a Bond on or prior to the V Business Day of such Commercial Paper Rate Period which will, in the judgment of the Remarketing Agent, produce the greatest likelihood of the lowest net interest cost during the term of the Bonds; provided, that each Commercial 10-19680.08 14 C C Paper Rate Period shall be from 1 to 270 days in length, shall not exceed the remaining number of days prior to the Conversion Date if the Remarketing Agent has given or received notice of any conversion to a different rate period, shall commence on a Business Day, shall end on a day preceding a Business Day, and in any event shall end no later than the earlier of the 5th Business Day before the expiration date of the Liquidity Facility or the day preceding the Maturity Date. Each Bond may bear interest at a different Commercial Paper Rate and for a Commercial Paper Rate Period different from any other Bond if deemed advisable by the Remarketing Agent to minimize the aggregate net interest cost on the Bonds, taking into account prevailing market conditions. The Remarketing Agent shall notify the Trustee and the Issuer of the Commercial Paper Rate Period by Electronic Notice by 11:00 a.m., Arkansas time, on the date of determination. (3) If the Remarketing Agent fails for any reason to determine the Commercial Paper Rate for any Bond that accrues interest at a Commercial Paper Rate, the Commercial Paper Rate Period for such Bond shall be 7 days (or, if that Commercial Paper Rate Period would not end on a day before a Business Day, a Commercial Paper Rate Period ending on the day before the next Business Day); and the interest rate for such Commercial Paper Rate Period shall be the most recent Bond Market Association "swap index" published in The Bond Buyer, as determined by the Remarketing Agent (or if The Bond Buyer or such index is no longer published, any other published similar index as is determined by the Remarketing Agent in its sole discretion to be appropriate), plus 15 basis points, until the Trustee is notified of a new Commercial Paper Rate and Commercial Paper Rate Period determined for such Bond by the Remarketing Agent. (c) Fixed Rate. The Fixed Rate Period, the Fixed Rate, and the schedule of principal payments for Bonds bearing interest at the Fixed Rate, shall be determined as follows. (1) The Fixed Rate Period shall commence on the Conversion Date to the Fixed Rate and shall extend to the Maturity Date. (2) The Fixed Rate for the Bonds shall be set forth in the firm underwriting or purchase contract with the firm of bond underwriters or institutional investors delivered to the Trustee as required by Section 202(e)(3) hereof. In determining the Fixed Rate, such firm of bond underwriters or institutional investors shall use the following guidelines: the Fixed Rate shall be the lowest interest rate that will enable the Bonds upon conversion to be remarketed at par, assuming that the entire outstanding principal amount of Bonds then being converted will be due and payable on the Maturity Date, the interest on all Bonds shall be payable semiannually on February 15 and August 15 of each year 10-19680.08 15 (commencing with the first February 15 or August 15 occurring at least 3 months after the Conversion Date), all Bonds shall bear interest at the same rate, and all such Bonds shall only be remarketed at par. The foregoing notwithstanding, another method of providing for payment of principal on the Bonds after the conversion to the Fixed Rate may be established by the firm of bond underwriters or institutional investors underwriting or purchasing such Bonds if there is delivered to the Trustee and the Issuer an Opinion of Bond Counsel to the effect that utilization of such other method will not adversely affect the exclusion from gross income of the interest on any Bonds for federal income tax purposes. (d) Default Rate. While there exists an event of default under this Indenture, the interest rate on the Bonds will be the rate on the Bonds on the day before the event of default occurred. (e) Conversions Between Rate Periods. The Issuer may elect to convert all of the Bonds from one type of rate period to another as provided in this Section, except that Bonds bearing interest at the Fixed Rate may not be converted to any other type of rate period. (1) Notice by Issuer. The Issuer shall give notice of any proposed conversion and the proposed Conversion Date to the Trustee not less than 45 days prior to the proposed Conversion Date. 4 (2) Notices by Trustee. Upon receipt of such notice from the Issuer, the Trustee shall promptly give written notice of the proposed conversion to the Remarketing Agent and the Liquidity Provider. The Trustee shall give notice (which may be combined, where applicable, with any notice of mandatory tender required by Section 402(g) hereof), by first class mail of the proposed conversion to the affected owners of Bonds, and if a Book -Entry System is in effect, the Securities Depository, not less than 30 days before the proposed Conversion Date. Such notice shall state: (A) the proposed Conversion Date, the proposed rate period to be effective on such date and the principal amount of Bonds to be converted; (B) that such Bonds will be subject to mandatory tender for purchase on the Conversion Date; (C) the conditions, if any, to the conversion pursuant to subsection (3) below, and the consequences of such conditions not being fulfilled pursuant to subsection (4) below; 10-19680.08 16 (D) if the Bonds are in certificated form, information with respect to required delivery of Bond certificates and payment of the purchase price; and (E) the new Interest Payment Dates and Record Dates. (3) Conditions to Conversion. No conversion of rate periods will become effective unless: (A) if a Liquidity Facility will be in effect after the Conversion Date, then, upon conversion, the stated coverage of the Liquidity Facility will include an amount sufficient to pay interest on all Bonds outstanding (calculated at the Maximum Rate) for a period of days not less than the number of days in the longest interest payment period for the Bonds in such interest rate mode plus 5 days, or the Trustee has received prior written confirmation from each Rating Agency maintaining a rating on the Bonds that such conversion will not result in a reduction or withdrawal of the then current ratings on the Bonds (no Liquidity Facility is required hereunder after a conversion to the Fixed Rate); (B) if the conversion is from Commercial Paper Rate Periods, the Trustee receives, prior to the date on which notice of conversion is required to be given to owners, written confirmation from the Remarketing Agent that it has not established any Commercial Paper Rate Periods with respect to such Bonds extending beyond the day before the Conversion Date; (C) if the conversion is to the Fixed Rate, the Issuer delivers to the Trustee with the conversion notice under paragraph (1) above, (i) a firm underwriting or purchase contract from a recognized firm of bond underwriters or recognized institutional investors, which may be the Remarketing Agent, to underwrite or purchase all Bonds that are to be converted to the Fixed Rate at a price of 100% of the principal amount thereof at an agreed upon interest rate for the Bonds which such underwriters or institutional investors certify is the lowest rate that will permit the Bonds to be sold at par on the 1St day of the Fixed Rate Period; and (ii) an Opinion of Bond Counsel (which opinion shall be addressed and delivered to the Trustee and the Issuer and shall be confirmed on the Conversion Date) stating that such conversion is authorized or permitted by this Indenture, and that the conversion will not adversely affect the exclusion from gross income of interest on any Bonds for federal income tax purposes; and (D) if any Bonds have been called for redemption and the redemption has not yet occurred, the effective date of the conversion cannot be i�aizl $XuI1 17 before such redemption date; and after a determination is made requiring mandatory redemption of all Bonds on a Determination of Taxability (as defined in Section 301(e)), no change in the method of determining interest on the Bonds may be made. (4) Failure of Conditions to Conversion. If any condition precedent to a conversion set forth in paragraph (3) above is not met, then no conversion shall occur, but the Bonds shall continue to be subject to the mandatory tender otherwise required by Section 402(b) without regard to the failure to fulfill such condition, and thereafter shall accrue interest at Weekly Rates for Weekly Rate Periods determined as provided in Section 202(a). (f) Calculation of Interest. The Trustee shall calculate the interest payable on the Bonds on each Interest Payment Date, using the rates supplied by these notices, and will confirm the amount of interest payable for each Interest Period for the applicable minimum denomination by telephone or in writing to any bondowner, upon request, and to the Issuer as required pursuant to Section 504(b) hereof. Section 203. Limited Obligations. The Bonds and the interest thereon shall be special, limited obligations of the Issuer payable (except to the extent paid out of Bond proceeds or the income from the temporary investment thereof) solely from Net Revenues and from amounts drawn under the Liquidity Facility to pay Bonds tendered for purchase and are secured by a pledge and assignment of and a grant of a security interest in the Trust Estate to the Trustee and in favor of the owners of the Bonds, as provided in this Indenture. The Bonds and interest thereon shall not be deemed to constitute a debt or liability of the State or the Issuer or of any political subdivision thereof within the meaning of any State constitutional provision or statutory limitation and shall not constitute a pledge of the full faith and credit of the State or the Issuer or of any political subdivision thereof, but shall be payable solely from the funds provided for in this Indenture. The issuance of the Bonds shall not, directly, indirectly or contingently, obligate the State or the Issuer or any political subdivision thereof to levy any form of taxation therefor or to make any appropriation for their payment. The State shall not in any event be liable for the payment of the principal of, redemption premium, if any, or interest on the Bonds or for the performance of any pledge, mortgage, obligation or agreement of any kind whatsoever which may be undertaken by the Issuer. No breach by the Issuer of any such pledge, mortgage, obligation or agreement may impose any liability, pecuniary or otherwise, upon the State or any charge upon its general credit or against its taxing power. Section 204. Execution and Authentication. The Bonds shall be executed on behalf of the Issuer by the manual or facsimile signature of its Mayor and attested by the manual or facsimile signature of its City Clerk, and shall have the corporate seal of the Issuer affixed thereto or imprinted thereon. If any officer whose manual or facsimile signature appears on any Bonds shall cease to hold such office before the authentication and delivery of such Bonds, such signature shall nevertheless be valid and sufficient for all purposes, the same as if such person had remained in office until delivery. Any Bond may be signed by such persons as at the actual time of the execution of such Bond shall be the proper officers to sign such Bond although at the date of such Bond such persons may not have been such officers. 10-19680.08 18 No Bond shall be secured by, or be entitled to any lien, right or benefit under, this Indenture or be valid or obligatory for any purpose, unless the certificate of authentication thereon is executed by the Trustee by manual signature of an authorized officer or signatory of the Trustee, and such certificate upon any Bond shall be conclusive evidence, and the only evidence, that such Bond has been duly authenticated and delivered hereunder. At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Bonds executed by the Issuer to the Trustee for authentication and the Trustee shall authenticate and deliver such Bonds as in this Indenture provided and not otherwise. Section 205. Registration, Transfer and Exchange. The Trustee is hereby appointed "bond registrar" for the purpose of registering Bonds and transfers of Bonds as herein provided. The Trustee shall cause to be kept at its principal corporate trust office or other designated payment office a register (referred to herein as the "bond register") in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration, transfer and exchange of Bonds as herein provided. Bonds may be transferred or exchanged only upon the bond register maintained by the Trustee as provided in this Section. Upon surrender for transfer or exchange of any Bond at the designated corporate trust office of the Trustee, the Issuer shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Bonds of any authorized denominations and of a like aggregate principal amount. Every Bond presented or surrendered for transfer or exchange shall (if so required by the Trustee, as bond registrar) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Trustee, as bond registrar, duly executed by the owner thereof or his attorney or legal representative duly authorized in writing. All Bonds issued upon any transfer or exchange of Bonds shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same security and benefits under this Indenture, as the Bonds surrendered upon such transfer or exchange. No service charge shall be made for any registration, transfer or exchange of Bonds, but the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Bonds, and such charge shall be paid before any such new Bond shall be delivered. The fees and charges of the Trustee for making any transfer or exchange and the expense of any bond printing necessary to effect any such transfer or exchange shall be paid by the Issuer. In the event any registered owner fails to provide a correct taxpayer identification number to the Trustee, the Trustee may impose a charge against such registered owner sufficient to pay any governmental charge required to be paid as a result of such failure. In compliance with Section 3406 of the Internal Revenue Code, such amount may be deducted by the Trustee from amounts otherwise payable to such registered owner hereunder or under the Bonds. The Trustee shall not be required (i) to transfer or exchange any Bond during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of such Bond and ending at the close of business on the day of such mailing, or (ii) to transfer or exchange any Bond so selected for redemption in whole or in part, during a period 10-19680.08 19 beginning at the opening of business on any Record Date for such Bonds and ending at the close of business on the relevant Interest Payment Date therefor. Section 206. Persons Deemed Owners of Bonds. The Person in whose name any Bond is registered on the bond register shall be deemed and regarded as the absolute owner thereof for all purposes, except as otherwise provided in this Indenture when Book -Entry System is in effect with respect to the Bonds, and payment of or on account of the principal of and premium, if any, and interest on any such Bond shall be made only to or upon the order of the registered owner thereof or his legal representative, 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. The Trustee will keep on file at its principal corporate trust office or other designated payment office, a list of the names and addresses of the last known owners of all Bonds and the serial numbers of such Bonds held by each of such owners. At reasonable times and under reasonable regulations established by the Trustee, the list may be inspected and copied by the Issuer or the owners of 10% in principal amount of Bonds Outstanding or the authorized representative thereof, provided that the ownership of such owner and the authority of any such designated representative shall be evidenced to the satisfaction of the Trustee. Section 207. Mutilated, Destroyed, Lost and Stolen Bonds. If (i) any mutilated Bond is surrendered to the Trustee, or the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Bond, and (ii) there is delivered to the Issuer and the Trustee such security or indemnity as may be required by the Trustee to save each of them harmless, then, in the absence of notice to the Trustee in the manner prescribed in Section 1201 hereof that such Bond has been acquired by a bona fide purchaser, the Issuer shall execute and the Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Bond, a new Bond of like tenor and principal amount, bearing a number not contemporaneously outstanding. Upon the issuance of any new Bond under this Section, the Issuer and the Trustee 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 connected therewith. Every new Bond issued pursuant to this Section in lieu of any destroyed, lost or stolen Bond, shall constitute an original additional contractual obligation of the Issuer, whether or not the destroyed, lost or stolen Bond shall be at any time enforceable by anyone, and shall be entitled to all the security and benefits of this Indenture equally and ratably with all other Outstanding Bonds. Section 208. Cancellation of Bonds. All Bonds surrendered to the Trustee for payment, redemption, transfer, exchange or replacement shall be promptly cancelled by the Trustee. The Issuer may at any time deliver to the Trustee for cancellation any Bonds previously authenticated and delivered hereunder, which the Issuer may have acquired in any manner whatsoever, and all Bonds so delivered shall be promptly cancelled by the Trustee. No Bond shall be authenticated in lieu of or in exchange for any Bond cancelled as provided in this Section, except as expressly provided by this Indenture. All cancelled Bonds held by the Trustee 10-19680.08 20 0 shall be destroyed and disposed of by the Trustee in accordance with applicable record retention requirements. The Trustee shall execute and deliver to the Issuer a certificate describing the Bonds so cancelled. Section 209. 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. 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. (1) If the Issuer or the Remarketing Agent 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 bondowner 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 bondowner other than Cede & Co. is no longer in the best interests of the beneficial owners of the Bonds, then the Trustee shall notify the bondowners of such determination or such notice and of the availability of certificates to owners 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 (1)(A) or (1)(B) of this paragraph, the Issuer or the Remarketing Agent, with the consent of 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 Issuer, the Trustee or bondowners 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 bondowners, 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 Issuer. 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 Issuer or the Remarketing Agent may appoint a successor Securities Depository provided the Trustee receives 10-19680.08 21 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. Section 210. Other Indebtedness. (a) The Issuer shall be entitled to issue and incur indebtedness secured on a parity with the Prior Indebtedness upon satisfaction of the conditions set forth in the ordinances of the Issuer under which the Prior Indebtedness was issued. (b) So long as any of the Bonds are Outstanding, the Issuer shall not create or permit the creation of any indebtedness secured in any manner by the Trust Estate on a parity basis with the Bonds. (c) Nothing in this Indenture shall prohibit the Issuer from issuing or incurring indebtedness secured by the Net Revenues on a subordinate basis to the Bonds. ARTICLE III 1 REDEMPTION OF BONDS Section 301. Redemption of Bonds Prior to Maturity. The Bonds are subject to redemption prior to their stated maturity as follows: (a) Optional Redemption. Bonds that bear interest at Weekly Rates or Commercial Paper Rates are subject to redemption and payment prior to maturity upon the written direction of the Issuer, in whole or in part, in authorized denominations, on any Interest Payment Date, at a redemption price equal to 100% of the principal amount redeemed, plus interest accrued to the redemption date. Bonds that bear interest at the Fixed Rate are not subject to redemption and payment prior to maturity. (b) Extraordinary Optional Redemption. Bonds that bear interest at the Fixed Rate are subject to redemption and payment prior to the stated maturity thereof, upon written direction from the Issuer, in whole or in part on any Business Day, at a redemption price equal to 100% of the principal amount thereof, plus accrued interest thereon to the redemption date, without premium, if as a result of any changes in the Constitution of the State or the Constitution of the United States of America or of legislative or administrative action (whether state or federal) or by final direction, judgment or order of any court or administrative body (whether 10-19680O8 22 state or federal) entered after the contest thereof by the Issuer in good faith, this Indenture becomes void or unenforceable or impossible of performance in accordance with the intent and purpose of the parties as expressed therein. Any such redemption shall be on a Business Day within 90 days from the date the Issuer directs that the Bonds are to be redeemed, which direction must be given, if at all, within 180 days following the occurrence of any event listed above. (c) [RESERVED] (d) Mandatory Redemption of Liquidity Provider Bonds Upon Demand by Liquidity Provider. Liquidity Provider Bonds are subject to mandatory redemption at a redemption price equal to 100% of the principal amount thereof, plus accrued interest to the redemption date, in whole or in part, without premium, on any Business Day, upon receipt by the Trustee of written notice from the Liquidity Provider requesting such redemption and specifying the principal amount of the Liquidity Provider Bonds to be redeemed. (e) Mandatory Redemption on Determination of Taxability. The Bonds are subject to mandatory redemption and payment prior to the stated maturity thereof in whole (or in part as described below), at a redemption price equal to 100% of the principal amount thereof, plus accrued interest to the redemption date, on any day } within 120 days after the occurrence of a Determination of Taxability. A "Determination of Taxability" shall be deemed to have occurred if a final decree or judgment of any federal court or a final action of the Internal Revenue Service is taken which determines that interest paid or payable on any Bond is or was includable in the gross income of any bondowner, beneficial owner, former bondowner or former beneficial owner for federal income tax purposes under the Internal Revenue Code (other than a "substantial user" of the Project or a "related person" within the meaning of Section 147(a) of the Internal Revenue Code). No such decree, judgment or action will be considered final for this purpose, however, unless the Issuer has been given written notice and, if it is so desired and is legally allowed, has been afforded the opportunity to contest the same, either directly or in the name of any bondowner, beneficial owner, former bondowner or former beneficial owner of a Bond and until conclusion of any appellate review, if sought. If an Opinion of Bond Counsel is delivered to the Trustee stating that the redemption of fewer than all of the Bonds would result in the interest on the Bonds outstanding following such redemption not being includable in the gross income for federal income tax purposes of the holders of such Bonds Outstanding, then fewer than all of the Bonds may be redeemed in the amount specified in such opinion, provided that such redemption must be in authorized denominations. If fewer than all Bonds are redeemed, the Trustee shall select the Bonds to be redeemed by lot or by such other method acceptable to the Trustee as may be approved in an Opinion of Bond Counsel. 10-19680.08 23 (f) Purchase in Lieu of Redemption. When Bonds are subject to redemption pursuant to subsections (d) and (e) of this Section, Bonds paid by the Issuer shall be purchased in lieu of redemption on the applicable redemption date at a purchase price equal to 100% of the principal amount thereof, plus accrued interest thereon to but not including the date of such purchase, if the Trustee has received a written request on or before said purchase date from the Issuer specifying that the moneys provided or to be provided by the Issuer shall be used to purchase Bonds in lieu of redemption. No purchase of Bonds by the Issuer pursuant to this subsection or advance or use of any moneys to effectuate any such purchase shall be deemed to be a payment or redemption of the Bonds or any portion thereof, and such purchase shall not operate to extinguish or discharge the indebtedness evidenced by such Bonds. No Bonds purchased pursuant to this subsection shall be required to be remarketed by the Remarketing Agent pursuant to Section 403 of this Indenture unless the Remarketing Agent specifically agrees to undertake such remarketing. Section 302. Election to Redeem; Notice to Trustee. In case of any redemption at the election of the Issuer, the Issuer shall, at least 45 days prior to the redemption date (unless a shorter notice shall be satisfactory to the Trustee) give written notice to the Trustee directing the Trustee to call Bonds for redemption and give notice of redemption and specifying the redemption date, the principal amount of Bonds to be called for redemption, the applicable redemption price or prices and the provision or provisions of this Indenture pursuant to which such Bonds are to be called for redemption. The foregoing provisions of this Section shall not apply in the case of any mandatory redemption of Bonds under this Indenture, and the Trustee shall call Bonds for redemption and shall give notice of redemption pursuant to such mandatory redemption requirements without the necessity of any action by the Issuer and whether or not the Trustee shall hold in the Debt Service Fund moneys available and sufficient to effect the required redemption. Section 303. Selection of Bonds to be Redeemed; Bonds Redeemed in Part. Bonds may be redeemed only in the principal amount of authorized denominations of the Bonds. No portion of a Bond may be redeemed that would result in a Bond which is smaller than the then permitted minimum authorized denomination. For this purpose, the Trustee shall consider each Bond in a denomination larger than the minimum authorized denomination permitted at the time to be separate Bonds each in the minimum authorized denomination. Provisions of this Indenture that apply to Bonds called for redemption also apply to portions of Bonds called for redemption. If less than all Bonds are to be redeemed, the particular Bonds to be redeemed shall be selected by the Trustee from the Bonds which have not previously been called for redemption, by lot and which may provide for the selection for redemption of portions equal to minimum authorized denominations of the principal of Bonds of a denomination larger than such minimum authorized denominations. Notwithstanding the foregoing, Liquidity Provider Bonds and Issuer Bonds (in that order of priority) shall be redeemed prior to any other Bonds. 10-19680.08 24 Any Bond which is to be redeemed only in part shall be surrendered at the place of payment therefor (with, if the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Trustee duly executed by, the owner thereof or his attorney or legal representative duly authorized in writing) and the Trustee shall authenticate and deliver to the owner of such Bond, without service charge, a new Bond or Bonds of any authorized denomination or denominations as requested by such owner in the aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Bond so surrendered. If the owner of any such Bond shall fail to present such Bond to the Trustee for payment and exchange as aforesaid, said Bond shall, nevertheless, become due and payable on the redemption date to the extent of the unit or units of principal amount in minimum authorized denominations called for redemption (and to that extent only). In lieu of surrender under the preceding paragraph, payment of the redemption price of a portion of any Bond may be made directly to the registered owner thereof without surrender thereof, if there shall have been filed with the Trustee a written agreement of such owner satisfactory in form and substance to the Trustee, and, if such owner is a nominee, the Person for whom such owner is a nominee, that payment shall be so made and that such owner will not sell, transfer or otherwise dispose of such Bond unless prior to delivery thereof such owner shall present such Bond to the Trustee for notation thereon of the portion of the principal thereof redeemed or shall surrender such Bond in exchange for a new Bond or Bonds for the unredeemed balance of the principal of the surrendered Bond. The Trustee shall promptly notify the Issuer in writing of the Bonds selected for redemption and, in the case of any Bond selected for partial redemption, the principal amount thereof to be redeemed. Notwithstanding the foregoing, in the event that the Depository for the Bonds is DTC, the Trustee shall follow the procedure for redemption and notice as set forth in DTC's operational arrangements, as in effect at the time. Section 304. Notice of Redemption. Unless waived by any owner of Bonds to be redeemed, official notice of any such redemption shall be given by the Trustee on behalf of the Issuer by mailing a copy of an official redemption notice by first class mail, at least 30 days prior to the redemption date for Bonds, to each registered owner of the Bonds to be redeemed at the address shown on the bond register. All official notices of redemption shall be dated and shall state: (a) the redemption date; (b) the redemption price; (c) the principal amount (and, in the case of partial redemption, the respective principal amounts, identification numbers and maturity date) of the Bonds to be redeemed; (d) that on the redemption date the redemption price will become due and payable upon each such Bond or portion thereof called for redemption, and that 10-19680.08 25 interest thereon shall cease to accrue from and after said date (unless sufficient moneys are not available to the Trustee to pay the redemption price); and (e) the place where the Bonds to be redeemed are to be surrendered for payment of the redemption price, which place of payment shall be the principal corporate trust office or other designated payment office of the Trustee. With respect to optional redemptions, at the option of the Issuer, such notice may be conditional upon moneys being on deposit with the Trustee on or prior to the redemption date in an amount sufficient to pay the redemption price on the redemption date. If such notice is conditional and moneys are not received, such notice shall be of no force and effect, the Trustee shall not redeem such Bonds and the Trustee shall give notice, in the same manner in which the notice of redemption was given, that such moneys were not so received and that such Bonds will not be redeemed. The failure of any owner of Bonds to receive notice given as provided in this Section, or any defect therein, shall not affect the validity of any proceedings for the redemption of any Bonds. Any notice mailed as provided in this Section shall be conclusively presumed to have been duly given and shall become effective upon mailing, whether or not any owner receives such notice. So long as the Securities Depository is effecting book -entry transfers of the Bonds, the Trustee shall provide the notices specified in this Section only to the Securities Depository. It is expected that the Securities Depository shall, in turn, notify its Participants and that the ) Participants, in turn, will notify or cause to be notified the beneficial owners. Any failure on the part of the Securities Depository or a Participant, or failure on the part of a nominee of a beneficial owner of a Bond to notify the beneficial owner of the Bond so affected, shall not affect the validity of the redemption of such Bond. Section 305. Deposit of Redemption Price; Bonds Payable on Redemption. Prior to any redemption date, moneys shall be deposited with the Trustee in an amount sufficient to pay the redemption price of all the Bonds which are to be redeemed on that date. Such money shall be held in trust for the benefit of the Persons entitled to such redemption price and shall not be deemed to be part of the Trust Estate. Notice of redemption having been given as aforesaid, the Bonds to be redeemed shall, on the redemption date, become due and payable at the. redemption price therein specified and from and after such date (unless moneys sufficient for the payment of the redemption price are not on deposit with the Trustee) such Bonds shall cease to bear interest. Upon surrender of any such Bond for redemption in accordance with said notice, the redemption price of such Bond shall be paid by the Trustee to the registered owner in immediately available funds by close of business on the redemption date. Installments of interest with a due date on or prior to the redemption date shall be payable to the owners of the Bonds registered as such on the relevant Record Dates according to the terms of such Bonds and the provisions of Section 201 hereof. If any Bond called for redemption shall not be so paid upon surrender thereof for redemption, or as otherwise provided under Section 303 in lieu of surrender, the principal (and 10-19680.08 26 premium, if any) shall, until paid, bear interest from the redemption date at the rate prescribed i therefor in the Bond. ARTICLE IV TENDER AND PURCHASE OF BONDS Section 401. Optional Tenders for Purchase. Bonds (except Liquidity Provider Bonds and Issuer Bonds) may be tendered for purchase, at the option of the owners thereof, at a purchase price equal to 100% of the principal amount of such Bonds (or portions in authorized denominations) plus accrued interest, if any, to the purchase date, as follows: (a) Optional Purchase Dates. The owners of Bonds (or the beneficial owners of Bonds held in a Book -Entry System through its direct Participant) accruing interest at Weekly Rates may elect to have their Bonds or beneficial interests (or portions thereof in authorized denominations) purchased on any Business Day upon Electronic Notice of tender given to the Trustee not later than 3:00 p.m., Arkansas time, on a Business Day at least 7 days prior to the purchase date. (b) Bondowner Notice of Optional Tender. Each notice of tender: (I) shall be delivered by the bondowner (or, if the Bonds are held under the • Book -Entry System, by the beneficial owner through its Participant in the Securities Depository) to the Trustee and the Remarketing Agent at their notice addresses (as herein provided) and shall be in form satisfactory to the Trustee; (2) shall state (A) the principal amount of Bonds or beneficial interest (or portion thereof in authorized denominations) to be tendered, (B) that the owner irrevocably demands purchase of such Bond or beneficial interest (or portion thereof in authorized denominations) to be tendered (or a specified portion thereof), (C) the date on which such Bond or beneficial interest (or portion thereof in authorized denominations) to be tendered (or portion thereof) is to be purchased, and (D) the identity of the Participant through which the beneficial owner maintains its interest and payment instructions with respect to the purchase price; and (3) shall automatically constitute (A) an irrevocable offer to sell the Bonds (or portion thereof) to which the notice relates on the purchase date at the purchase price, (B) an irrevocable authorization and instruction to the Trustee to effect transfer of such Bond (or portion thereof) upon payment of the purchase price to the Trustee on the purchase date, (C) an agreement of such owner (or beneficial owner through its participation in the Securities Depository) to make arrangements to deliver and transfer such Bond or beneficial interest being tendered, with all necessary endorsements for transfer and signature guarantees, by delivery to the Trustee at its designated payment office not later than 11:00 a.m., 10-19680.08 27 Arkansas time, on the purchase date, or by causing its direct Participant to transfer its interest in the Bonds equal to such beneficial owner's interest on the records of the Securities Depository to the participant account of the Trustee or its agent with the Securities Depository, and (D) an acknowledgment that such owner will have no further rights with respect to such Bond (or portion thereof) upon payment of the purchase price thereof to the Trustee on the purchase date, except for the right of such owner to receive such purchase price upon delivery of such Bond to the Trustee, and that after the purchase date such owner will hold any undelivered bond certificate as agent for the Trustee. The determination of the Trustee as to whether a notice of tender has been properly delivered pursuant to the foregoing shall be conclusive and binding upon the owner. (c) Notice by Trustee. Not later than 4:00 p.m., Arkansas time, on the I Business Day following the date of receipt of any notice of tender, the Trustee shall notify, by Electronic Notice, the Remarketing Agent and the Issuer of receipt of such tender notice, the principal amount of Bonds or beneficial interest (or portions thereof) to be purchased and the purchase date. Section 402. Mandatory Tenders for Purchase. Bonds bearing interest at Weekly Rates or Commercial Paper Rates are subject to mandatory tender for purchase at a purchase price equal to 100% of the principal amount of such Bonds, plus accrued interest, if any, to the purchase date, as follows: (a) Mandatory Tender of Weekly Rate Bonds. Bonds accruing interest at a Weekly Rate are subject to mandatory tender for purchase on any Interest Payment Date applicable to such Bonds upon written demand of the Liquidity Provider or upon written demand of the Issuer with prior written consent of the Liquidity Provider. (b) Mandatory Tender of Commercial Paper Rate Bonds. Bonds accruing interest at a Commercial Paper Rate are subject to mandatory tender for purchase on each Interest Payment Date applicable to such Bond. (c) Mandatory Tender Upon Conversions between Rate Periods. Bonds to be converted from one type of rate period to a different type of rate period are subject to mandatory tender for purchase on the Conversion Date. (d) Mandatory Tender Upon Expiration or Termination of the Liquidity Facility. The Bonds will be subject to mandatory tender for purchase on the 5' Business Day prior to the expiration or termination of the Liquidity Facility if the Trustee has not received evidence satisfactory to it by the 30" day preceding the scheduled expiration or termination date of an extension of the then existing Liquidity Facility or the issuance of an Alternate Liquidity Facility meeting the requirements set forth in Section 602 hereof; provided, however, that no mandatory tender for purchase will occur as a result of an event of default under 10-19680.08 28 the Liquidity Facility if such event of default results in the immediate suspension } or termination of the obligation of the Liquidity Provider to purchase Bonds under the Liquidity Facility. (e) [RESERVED] (f) Mandatory Tender Upon Reduction of Credit Rating. The Bonds will be subject to mandatory tender for purchase if the Trustee has received evidence that the rating on the Bonds will be reduced or withdrawn. (g) Notice by Trustee of Mandatory Tender. At any time the Bonds are subject to mandatory tender as provided above, the Trustee shall give notice of such mandatory tender for purchase (other than mandatory tenders on an Interest Payment Date during a Commercial Paper Rate Period) to the owners of Bonds, the Issuer, the Liquidity Provider, the Remarketing Agent, principal bond depositories, information services and to each Rating Agency maintaining a rating on the Bonds, not less than 10 days before the mandatory tender date. If the Bonds are in certificated form, such notice shall include information with respect to required delivery of bond certificates and payment of the purchase price. The notice will state (1) the purchase date, (2) the purchase price, (3) if a Book -Entry System is not in effect, that the Bonds subject to mandatory tender must be surrendered to collect the purchase price, (4) if a Book -Entry System is not in effect, the address at which the Bonds must be surrendered, and (5) that interest on the Bonds purchased ceases to accrue on the purchase date. In addition, if a Liquidity Facility is expiring, the notice will state the expiration date. Failure to give any required notice of mandatory tender as to any particular Bonds will not affect the validity of the purchase of any Bonds in respect of which no such failure has occurred. Any notice mailed as provided in this Indenture will be conclusively presumed to have been given whether or not actually received by any bondowner. The owner of any Bond accruing interest at a Commercial Paper Rate shall provide the Trustee with written payment instructions for the purchase price on or before tender thereof to the Trustee. Section 403. Remarketing and Purchase of Tendered Bonds. (a) Remarketing of Tendered Bonds. (1) Unless otherwise instructed by the Issuer, the Remarketing Agent shall offer for sale and use its best efforts to find purchasers for all Bonds or portions thereof for which notice of tender has been received pursuant to Section 401 or which are subject to mandatory tender pursuant to Section 402, as provided herein and in the Remarketing Agreement. The terms of any sale of Bonds to be remarketed by the Remarketing Agent shall provide for the payment of the purchase price for tendered Bonds to the Remarketing Agent in sufficient time for the Remarketing Agent to deliver such funds to the Trustee in immediately available funds at or before 9:30 10-19680.08 29 a.m., Arkansas time, on the purchase date, in exchange for Bonds registered in the name of the new bondowner, which Bonds shall be delivered by the Trustee to the Remarketing Agent at or before 12:00 noon, Arkansas time, on the purchase date if the purchase price with respect to all of the Bonds to be remarketed has been received from the Remarketing Agent by the time set forth above on the purchase date. (2) The Remarketing Agent shall not remarket any Bond that is optionally tendered as to which a notice of redemption or a notice of mandatory tender has been given by the Trustee if the purchase date would occur on or after the 10t° day prior to the redemption date or mandatory tender date, unless the Remarketing Agent consents and has notified the Person to whom the sale is made of the redemption notice or mandatory tender notice, and shall not in any event remarket any such Bond if the purchase date would occur on or after the 2"d day prior to the redemption date or mandatory tender date. (3) The Remarketing Agent shall not remarket any Bonds under this Section during the continuance of an event of default under this Indenture of which the Remarketing Agent has notice, unless the purchaser of such Bonds is given notice of such event of default, and shall not in any event remarket any Bonds following the occurrence of an event of default if the Trustee has declared the principal of, premium, if any, and interest on the Bonds to be immediately due and payable pursuant to Section 802 hereof. (4) The Remarketing Agent shall not remarket any Bonds to the Issuer (or any "insider," as defined in the United States Bankruptcy Code, of the Issuer). (5) The purchase price of each Bond remarketed by the Remarketing Agent must be equal to the principal amount of each Bond plus accrued interest, if any, to the purchase date. The Issuer may direct the Remarketing Agent from time to time to cease and to resume sales efforts with respect to some of or all the Bonds. The Remarketing Agent may buy as principal any Bonds to be offered under this Section. (b) Delivery of Tendered Bonds. (I) When a Book -Entry System is not in effect, all tendered Bonds must be delivered to the Trustee at or prior to 11:00 a.m., Arkansas time, if the Bonds bear interest at the Weekly Rate or the Commercial Paper Rate. Such Bonds shall be accompanied by an instrument of transfer satisfactory to the Trustee, executed in blank by the owner, with all signatures guaranteed. The Trustee may refuse to accept delivery of any Bond for which an instrument of transfer satisfactory to it has not been provided and shall have no obligation to pay the purchase price of such Bond until a satisfactory instrument is delivered. 10-19680.08 30 (2) When a Book -Entry System is in effect, the requirement for physical delivery of the Bonds under this Section shall be deemed satisfied when the ownership rights in the Bonds are transferred by direct Participants on the records of the Securities Depository. (3) The Trustee shall hold all Bonds delivered pursuant to this Section in trust for the benefit of the owners thereof until moneys representing the purchase price of such Bonds shall have been delivered to or for the account of or to the order of such bondowners, and thereafter, if such Bonds are remarketed, shall deliver replacement Bonds, prepared by the Trustee in accordance with the directions of the Remarketing Agent and authenticated by the Trustee, for any Bonds purchased in accordance with the directions of the Remarketing Agent to the Remarketing Agent for delivery to the purchasers thereof. (4) All Bonds to be purchased on any purchase date shall be required to be delivered to the designated payment office of the Trustee or its designated agent or drop service in New York City at or before 11:00 a.m., Arkansas time, on the purchase date. If the owner of any Bond (or portion thereof) in certificated form that is subject to optional or mandatory purchase pursuant to this Article fails to deliver such Bond to the Trustee for purchase on the purchase date, and if the Trustee is in receipt of the purchase price therefor, such Bond (or portion thereof) shall nevertheless } be deemed purchased on the purchase date thereof and ownership of such Bond (or portion thereof) shall be transferred to the purchaser thereof as provided in subsection (c)(5) below. Any owner who fails to deliver such Bond for purchase shall have no further rights thereunder except the right to receive the purchase price thereof upon presentation and surrender of said Bond to the Trustee. The Trustee shall, as to any tendered Bonds which have not been delivered to it (i) promptly notify the Remarketing Agent of such nondelivery, and (ii) place or cause to be placed a stop transfer against an appropriate amount of Bonds registered in the name of such owner(s) on the bond registration books. Notwithstanding anything herein to the contrary, so long as the Bonds are held in a Book Entry System, Bonds will not be delivered as set forth above; rather, transfers of beneficial ownership of the Bonds to the person indicated above will be effected on the registration books of the Securities Depository pursuant to its rules and procedures. (c) Purchase of Tendered Bonds. (1) Notices. At or before 9:00 a.m., Arkansas time, on the purchase date, the Remarketing Agent shall give notice to the Trustee by Electronic Notice of the principal amount of Bonds which have been remarketed, the actual amount of remarketing proceeds that will be delivered by or in behalf of the Remarketing Agent to the Trustee on the purchase date, the names, addresses and taxpayer identification numbers of the purchasers, the 10-19680.08 3! denominations of Bonds to be delivered to each purchaser and, if available, payment instructions for regularly scheduled interest payments, or of any changes in any such information previously communicated. If the Trustee shall fail to receive such notice from the Remarketing Agent by 9:00 a.m. Arkansas time on any purchase date, the Trustee shall contact the Remarketing Agent by telephone to confirm the information required to be provided in such notice. At or before 10:00 a.m., Arkansas time, on the purchase date, upon receipt of such notice, the Trustee shall promptly give Electronic Notice to the Liquidity Provider and the Issuer, specifying the principal amount of tendered Bonds as to which the Remarketing Agent has not found a purchaser at that time or has found a purchaser from whom payment has not been received. (2) Sources of Payments. The Remarketing Agent shall pay or cause to be paid to the Trustee, in immediately available funds, by 9:30 a.m., Arkansas time, on the purchase date of tendered Bonds, all amounts representing proceeds of the remarketing of such Bonds (the "Remarketing Proceeds"), and all such remarketing proceeds shall be deposited by the Trustee directly into the Remarketing Account in the Bond Purchase Fund. If the Remarketing Proceeds will not be sufficient to pay the purchase price on the purchase date of Bonds (other than Liquidity Provider Bonds or Issuer Bonds), the Trustee shall demand payment under the Liquidity Facility by 10:00 a.m., Arkansas time, on the purchase date, in the manner set forth in the Liquidity Facility, and the Liquidity Provider shall furnish to the Trustee immediately available funds by 1:30 p.m., Arkansas time on such purchase date, in an amount sufficient, together with the Remarketing Proceeds and moneys drawn under the Liquidity Facility, to enable the Trustee to pay the purchase price of such Bonds to be purchased on such purchase date; provided, the Trustee shall not make any demand for payment under the Liquidity Facility with respect to Issuer Bonds or Liquidity Provider Bonds. All moneys received by the Trustee as Remarketing Proceeds or from demands by the Trustee under the Liquidity Facility, as the case may be, shall be deposited by the Trustee in the appropriate account of the Bond Purchase Fund as herein provided and shall be used solely for the payment of the purchase price of tendered Bonds and shall not be commingled with other funds held by the Trustee. (3) Bond Purchase Fund. The Trustee shall deposit or cause to be deposited into the Remarketing Account in the Bond Purchase Fund, when and as received, all moneys delivered to the Trustee as and for the purchase price of remarketed Bonds by or on behalf of the Remarketing Agent. The Trustee shall disburse moneys from the Remarketing Account to pay the purchase price of Bonds properly tendered for purchase upon surrender of such Bonds (or to reimburse the Liquidity Provider for amounts paid under the Liquidity Facility with respect to such Bonds) in immediately available moneys by close of business on the purchase date. No purchase 10-19680.08 32 of Bonds by the Trustee or the Issuer or advance use of any funds to effectuate any such purchase shall be deemed to be a payment or redemption of the Bonds or any portion thereof, and such purchase will not operate to extinguish or discharge the indebtedness evidenced by such Bonds. The Trustee shall deposit or cause to be deposited into the Liquidity Provider Purchase Account in the Bond Purchase Fund when and as received, all proceeds from demand made on the Liquidity Facility pursuant to Section 403(c)(2). The Trustee shall disburse moneys from the Liquidity Provider Purchase Account to pay the purchase price of Bonds properly tendered for purchase upon surrender of such Bonds; provided that such proceeds shall not be applied to purchase Liquidity Provider Bonds or Issuer Bonds. The Trustee shall deposit or cause to be deposited into the Issuer Purchase Account in the Bond Purchase Fund, when and as received, all moneys delivered to the Trustee as and for the purchase price of Bonds by or for the account of the Issuer. The Trustee shall disburse moneys from the Issuer Purchase Account to pay the purchase price of Bonds properly tendered for purchase upon surrender of such Bonds; provided, that such proceeds shall not be applied to purchase Liquidity Provider Bonds or Issuer Bonds. The moneys in the Bond Purchase Fund shall not be part of the Trust Estate subject to any lien of this Indenture, but shall be used solely to pay the purchase price of Bonds as aforesaid (or to reimburse the Liquidity Provider for amounts paid under the Liquidity Facility for such purpose) and may not be used for any other purposes. The Trustee shall '. hold the moneys in the Bond Purchase Fund for the benefit of the owners of Bonds which have been properly tendered for purchase or deemed tendered on the purchase date. If sufficient funds to pay the purchase price for such tendered Bonds shall be held by the Trustee in the Bond Purchase Fund for the benefit of the owners thereof, each such owner shall thereafter be restricted exclusively to the Bond Purchase Fund for any claim of whatever nature on such owner's part under this Indenture or on, or with respect to, such tendered Bonds. Moneys held in the Bond Purchase Fund for the benefit of owners of untendered Bonds shall be held in trust and shall be invested at the direction of the Issuer in overnight obligations of the type described in clause (a) of the definition of "Government Obligations" in Section 101 hereof. Moneys in the Bond Purchase Fund which remain unclaimed 3 years after the applicable purchase date shall be remitted to the State Treasurer or to such other officer, board or body as may then be entitled by law to receive the same, and thereafter the owners of the Bonds for which the deposit was made shall look only to the State Treasurer or to such other officer, board or body, as the case may be, for payment and then only to the extent of the 10-19680.08 33 amounts so received, without any interest thereon, and the Trustee shall t have no responsibility with respect to such moneys. (4) Payments by the Trustee. At or before 1:45 p.m., Arkansas time, on the purchase date for tendered Bonds and upon receipt by the Trustee of 100% of the aggregate purchase price of the tendered Bonds, the Trustee shall pay the purchase price of such Bonds to the owners thereof. Such payments shall be made in immediately available funds. The Trustee shall apply to such payments in the following order: (A) moneys paid to it by the Remarketing Agent as proceeds of the remarketing of such Bonds by the Remarketing Agent, (B) proceeds made available through the Liquidity Facility, and (C) other moneys made available by the Issuer. (5) Registration and Delivery of Purchased Bonds. On the date of purchase, the Trustee shall register and deliver (or hold) all Bonds purchased on any purchase date as follows: (A) Bonds purchased or remarketed by the Remarketing Agent shall be registered and made available to the Remarketing Agent by 12:00 noon, Arkansas time, in accordance with the instructions of the Remarketing Agent, (B) Bonds purchased with proceeds made available through the Liquidity Facility shall be registered in the name of the Liquidity Provider and shall be held by the Trustee as Liquidity Provider Bonds in accordance with subparagraph (6) below, and (C) Bonds purchased with amounts provided by the Issuer shall be registered in the name of the Issuer and shall be held in trust by the Trustee on behalf of the Issuer and shall not be released from such trust unless the Trustee shall have received written instructions from the Issuer. Notwithstanding anything herein to the contrary, so long as the Bonds are held under a Book -Entry System, Bonds will not be delivered as set forth above; rather, transfers of beneficial ownership of the Bonds to the Person indicated above will be effected on the registration books of the Securities Depository pursuant to its rules and procedures. (6) Liquidity Provider Bonds. Bonds purchased with proceeds made available through the Liquidity Facility pursuant to this Section shall be deemed purchased by the Issuer for the benefit of the Liquidity Provider, shall constitute "Liquidity Provider Bonds", and shall be held by the Trustee as fiduciary for the Liquidity Provider (and shall be shown as Liquidity Provider Bonds on the bond register or, if the Bonds are held in the Book - Entry System, such Liquidity Provider Bonds shall be recorded in the books of the Securities Depository for the account of the Trustee, as custodian for the Liquidity Provider) in accordance with the provisions of this Indenture and the Liquidity Facility. The Remarketing Agent shall continue to use its best efforts to arrange for the sale of any Liquidity Provider Bonds, subject to full reinstatement of the amount available to be drawn under the Liquidity Facility with respect to such Bonds. 10-19680.08 34 I The Liquidity Provider's security interest in Liquidity Provider Bonds shall be released only after the Trustee has received Electronic Notice from the Liquidity Provider, that the Liquidity Facility has been reinstated by the amount of the funds drawn to purchase Liquidity Provider Bonds (A) as a result of reimbursement by the Issuer to the Liquidity Provider or (B) (i) while the Book -Entry System is in effect, because Liquidity Provider Bonds have been remarketed and the proceeds of such remarketing have been received by the Securities Depository for the account of the Trustee (for the benefit of the Liquidity Provider) or (ii) if the Book -Entry System is not in effect, because Liquidity Provider Bonds have been remarketed and the proceeds of such remarketing have been received by the Trustee (for the benefit of the Liquidity Provider). The Trustee shall promptly give the Liquidity Provider Electronic Notice that the proceeds referred to in clause (B) above have been credited to its account (for the benefit of the Liquidity Provider) by the Securities Depository in the case of clause (B)(i) or have been received by it in the case of clause (B)(ii), and in each case are being sent to the Liquidity Provider by wire transfer in accordance with the Liquidity Provider's written wire instructions. While the Book -Entry System is in effect, if Liquidity Provider Bonds have been released pursuant to clause (B) above, the Trustee shall instruct the Securities Depository to transfer such Bonds on its records to the account of the Remarketing Agent or its Participant and if the Book -Entry System is not in effect, the Trustee shall register such Bonds in accordance with the instructions of the Remarketing Agent. If such Bonds have been released pursuant to clause (A) above, (i) while the Book -Entry System is in effect, the Trustee shall instruct the Securities Depository to transfer any such Bonds to the account of a Participant designated by the Issuer, or (ii) if the Book -Entry System is not in effect, the Trustee shall register such Bonds to the Issuer or its designee. If the Remarketing Agent remarkets any Liquidity Provider Bond, the Remarketing Agent shall direct the purchaser of such Liquidity Provider Bond to transfer, by 9:00 a.rn., Arkansas time, on the purchase date, the purchase price of such remarketed Liquidity Provider Bond to the Trustee for deposit into a separate subaccount of the Remarketing Account of the Bond Purchase Fund, to be disbursed from such subaccount solely for the purposes described in this paragraph. The Trustee shall immediately notify the Liquidity Provider of the receipt of the purchase price for such Liquidity Provider Bond, and upon receipt by the Liquidity Provider in immediately available funds of all amounts due under the Liquidity Facility as reimbursement for the full amount therefore drawn under the Liquidity Facility to purchase such Liquidity Provider Bonds, and of written evidence to the Trustee as provided in the Liquidity Facility of full reinstatement of such amount drawn under the Liquidity Facility, such Liquidity Provider Bond shall be considered released from the pledge to the Liquidity Provider (absent written notice from the Liquidity Provider to the Trustee to the contrary). The Trustee shall transfer such 10-19680.08 35 purchase price to the Liquidity Provider upon receipt thereof in exchange for reinstatement of the amount available to be drawn under the Liquidity Facility (as contemplated above), and give all required notices, in accordance with the terms of the Liquidity Facility. If moneys remain on deposit with the Trustee in such subaccount after payment is made to the Liquidity Provider as described in the preceding sentence, such moneys shall be paid to, or upon the order of, the Issuer. Notwithstanding anything to the contrary in this subsection, if and for so long as the Bonds are held in Book Entry Form, the registration requirements under this subsection shall be deemed satisfied if Liquidity Provider Bonds are (A) registered in the name of the Securities Depository or its nominee, (B) credited on the books of the Securities Depository to the account of (i) the Liquidity Provider (or its designee) or (ii) the Trustee (or its nominee) and further credited on the books of the Trustee (or such nominee) to the account of the Liquidity Provider (or its designee). (7) Issuer Bonds. In the event that any Bonds are registered to the Issuer pursuant to subparagraph (5) or (6) above, to the extent requested by the Issuer the Remarketing Agent shall offer for sale and use its best efforts to remarket such Bonds. (d) Limitations on Tenders. \,._) (l) The owners or beneficial owners shall not have the right or be required, as the case may be, to tender any Bond for purchase on an optional tender date or a mandatory tender date if on such date an event of default shall have occurred and the Trustee shall have declared the principal of, premium, if any, and interest on the Bonds to be immediately due and payable pursuant to Section 802. (2) Owners or beneficial owners of Bonds called for redemption or mandatory repurchase shall not have the right (without the prior consent of the Remarketing Agent) to tender such Bonds for purchase on an optional tender date if such optional tender date will occur on or after the 101h day prior to the date fixed for redemption or mandatory repurchase. Notwithstanding the foregoing, owners or beneficial owners of Bonds called for redemption shall not have the right in any event to tender such Bonds for purchase on an optional tender date if such optional tender date will occur on or after the second day prior to the date fixed for redemption. Section 404. Remarketing Agent. Banc of America Securities LLC shall be the initial Remarketing Agent hereunder and under the Remarketing Agreement, and shall serve as Remarketing Agent at all times while the Bonds bear interest at a Weekly Rate or a Commercial Paper Rate until it resigns or is removed and a successor Remarketing Agent appointed for the Bonds as provided in this Section. The Remarketing Agent shall be a corporation or other legal 10-19680.08 36 entity organized and doing business under the laws of the United States of America or of any state thereof, authorized under such laws to perform all duties imposed upon the Remarketing Agent by this Indenture, and shall be either (a) a member of the National Association of Securities Dealers, Inc. and registered as a Municipal Securities Dealer under the Securities Exchange Act of 1934, as amended, or (b) a national banking association, commercial bank or trust company. So long as the Bonds are held in the Book -Entry System, the Remarketing Agent must be a Participant in the Book -Entry System with respect to the Bonds. The Remarketing Agent shall perform all of the duties imposed upon it by this Indenture and the Remarketing Agreement, but only upon the terms and conditions set forth herein and the Remarketing Agreement, including the following: (a) set the interest rates on the Bonds and perform the other duties provided for in Section 202 hereof, and remarket Bonds as provided in Section 403 hereof and in the Remarketing Agreement; (b) hold all moneys delivered to it hereunder for the purchase of Bonds in trust solely for the benefit of the person or entity which shall have so delivered such moneys until the Bonds purchased with such moneys shall have been delivered to or for the account of such person or entity; (c) keep such books and records as shall be consistent with customary industry practice that shall accurately reflect the transactions hereunder and to make such books and records available for inspection by the Issuer, the Trustee and the Liquidity Provider at all reasonable times; (d) deliver any notices required by this Indenture to be delivered by the Remarketing Agent; and (e) perform all other duties of the Remarketing Agent under this Indenture and the Remarketing Agreement. The Remarketing Agent at any time may resign and be discharged of the duties and obligations imposed upon the Remarketing Agent by this Indenture, by giving written notice thereof to the Issuer, the Trustee and the Liquidity Provider at least 30 days prior to the effective date of such resignation. The Remarketing Agent shall resign immediately at any time that it shall cease to be eligible in accordance with the provisions of this Section. The Remarketing Agent may be removed at any time by the Issuer by an instrument in writing delivered at least 15 days prior to the effective date of such removal to the Remarketing Agent, the Trustee and the Liquidity Provider. If the Remarketing Agent shall resign, be removed or become incapable of acting for any cause, the Issuer shall promptly appoint a successor Remarketing Agent for the Bonds, subject to the conditions set forth herein, by an instrument in writing delivered to the Trustee, the Liquidity Provider, and the retiring Remarketing Agent. Every such successor Remarketing Agent appointed pursuant to the provisions of this Section shall be (i) a member of the National Association of Securities Dealers, Inc., or (ii) a trust company or bank in good standing and 10-19680.08 37 having capital and surplus of not less than $50,000,000, and authorized by law to perform all of the duties imposed upon it by this Indenture. Every successor Remarketing Agent appointed hereunder shall execute and deliver to the Issuer, the Trustee, the Liquidity Provider and the retiring Remarketing Agent an instrument accepting such appointment, designating its principal office and signifying its acceptance of the duties and obligations imposed upon it hereunder. No resignation or removal of the Remarketing Agent and no appointment of a successor Remarketing Agent pursuant to this Section shall become effective until the acceptance of appointment by the successor Remarketing Agent hereunder. The Trustee shall give notice of each resignation and each removal of the Remarketing Agent and each appointment of a successor Remarketing Agent by mailing written notice of such event within 30 days of the resignation or removal of the Remarketing Agent or the appointment of a successor Remarketing Agent, to the Issuer, the Liquidity Provider, each Rating Agency maintaining a rating on the Bonds and the registered owners of the Bonds as their names and addresses appear in the bond register maintained by the Trustee. Each notice shall include the name of the successor Remarketing Agent and the address of its principal office. In the event of the resignation or removal of the Remarketing Agent, and the appointment of a successor Remarketing Agent, the retiring Remarketing Agent shall pay over, assign and deliver any moneys and Bonds held by it in such capacity to its successor. Section 405. Tender Agent. The Trustee shall act as tender agent with respect to the tender and purchase of Bonds, at all times while the Bonds bear interest at a Weekly Rate or a Commercial Paper Rate, as provided in this Article. The Trustee shall perform the duties imposed upon the Trustee under this Article, but only upon the terms and conditions set forth herein, including the following: (a) hold all Bonds delivered to it hereunder in trust for the benefit of the respective owners which shall have so delivered such Bonds until moneys representing the purchase price of such Bonds shall have been delivered to or for the account of or to the order of such owners; (b) hold all moneys delivered to it hereunder for the purchase of Bonds in trust in the Remarketing Account of the Bond Purchase Fund solely for the benefit of the person or entity which shall have so delivered such moneys until the Bonds purchased with such moneys shall have been delivered to or for the account of such person or entity; (c) keep such books and records as shall be consistent with customary industry practice that shall accurately reflect the transactions hereunder and to make such books and records available for inspection by the Issuer, the Remarketing Agent and the Liquidity Provider at all reasonable times; (d) deliver any notices required by this Indenture to be delivered by the Trustee as tender agent; and 10-19680.08 38 (e) perform all other duties of the Trustee as tender agent under this Indenture. The Trustee, with the written consent of the Issuer, the Remarketing Agent and the Liquidity Provider (which consents shall not be unreasonably withheld), may appoint as its agent an alternate tender agent by an instrument in writing delivered to the Issuer, the Remarketing Agent and the Liquidity Provider to act as its agent in performing any of its duties as tender agent hereunder. Any alternate tender agent appointed pursuant to the provisions of this Section shall meet the same eligibility requirements required of the Trustee under Section 905. No alternate tender agent shall accept its appointment unless at the time of such acceptance such alternate tender agent shall be qualified and eligible under this Article. Every alternate tender agent appointed hereunder shall execute and deliver to the Trustee, the Issuer, the Remarketing Agent and the Liquidity Provider an instrument accepting such appointment, designating its principal office and accepting the duties and obligations imposed upon it hereunder. No appointment of an alternate tender agent pursuant to this Section shall become effective until the acceptance of appointment by the alternate tender agent hereunder. The Trustee shall give notice of appointment of an alternate tender agent by mailing written notice of such event, within 30 days of the appointment of an alternate tender agent, to the Issuer, the Liquidity Provider, the Remarketing Agent, each Rating Agency maintaining a rating on the Bonds and the registered owners of Bonds as their names and addresses appear in the bond register maintained by the Trustee. Each notice shall include the name of the alternate tender agent and the address of its principal corporate trust office or designated payment office. ARTICLE V FUNDS AND ACCOUNTS Section 501. Creation of Funds and Accounts. There are hereby created and ordered to be established in the custody of the Trustee the following special trust funds and accounts with respect to the Bonds, to be designated as follows: (a) "Project Fund", and within such fund two separate and segregated trust accounts designated the "Costs of Issuance Account" and the "Project Account." (b) "Debt Service Fund." (c) "Debt Service Reserve Fund." (d) "Rebate Fund." (e) "Bond Purchase Fund", and within the such fund three separate and segregated trust accounts designated the "Remarketing Account", the "Liquidity Provider Purchase Account", and the "Issuer Purchase Account." 10-19680.08 39 The Trustee is authorized to establish separate subaccounts within such funds and accounts or otherwise segregate moneys within such funds and accounts, on a book -entry basis or in such other manner as the Trustee may deem necessary or convenient, or as the Trustee shall be instructed by the Issuer. All moneys deposited with or paid to the Trustee for the funds and accounts held under this Indenture shall be held by the Trustee in trust and shall be applied only in accordance with the provisions of this Indenture, and, until used or applied as herein provided, and constitute part of the Trust Estate and be subject to the lien, terms and provisions hereof (except as provided in Sections 305 and 1101 hereof, and except for moneys in the Bond Purchase Fund and the Rebate Fund which shall be held in trust but are not subject to the lien of this Indenture) and shall not be commingled with any other funds of the Issuer except as provided under Section 509 hereof for investment purposes. Section 501A. Confirmation of Prior Funds. There are hereby confirmed and ratified the existence of the following funds created pursuant to Ordinance No. 3638 adopted by the Issuer on August 18, 1992, and confirmed and continued pursuant to the ordinances of the Issuer authorizing the Prior Indebtedness: (a). Revenue Fund; (b) Operation and Maintenance Fund; and (c) Renewal and Replacement Fund. In addition, there are hereby confirmed and ratified the existence of the bond funds and debt service reserve funds with respect to the Prior Indebtedness created pursuant to the ordinances of the Issuer authorizing the Prior Indebtedness. Section 502. Deposit of Bond Proceeds. The net proceeds of the sale of the Bonds shall be paid to the Trustee, and the Trustee shall deposit and apply such proceeds, as follows: (a) Deposit to the credit of the Costs of Issuance Account in the Project Fund the sum of $75,700.00. The Trustee shall disburse the moneys deposited in the Costs of Issuance Account for the purposes and in the manner set forth in Section 503 of this Indenture. (b) Deposit to the credit of the Debt Service Reserve Fund the sum of $500,000, which amount shall be applied subject to the provisions of Section 504A of this Indenture. (c) Deposit to the credit of the Project Account in the Project Fund the balance of the proceeds of the sale of the Bonds, which deposit shall be disbursed by the Trustee for the purposes and in the manner set forth in Section 503 of this Indenture. 10-19680.08 40 0 Section 503. Project Fund. Moneys in the Costs of Issuance Account in the Project Fund shall be used solely for the purpose of paying Costs of Issuance, as provided in this Section. The Trustee shall pay out of the Costs of Issuance Account upon written disbursement requests of the Issuer, in substantially the form of Exhibit B hereto, signed by the Issuer Representative, amounts equal to the amount of Costs of Issuance certified in such written requests to be paid or reimbursed. At such time as the Trustee is furnished with an Officer's Certificate stating that all Costs of Issuance have been paid, and in any case not later than 6 months from the date of original issuance of the Bonds, the Trustee shall transfer any moneys remaining in the Costs of Issuance Account to the Project Account of the Project Fund. Moneys in the Project Account in the Project Fund shall be used for the purpose of paying Costs of the Project, as provided in this Section and in accordance with the plans and specifications therefor, including any alterations in or amendments to said plans and specifications deemed advisable by the Issuer. The Issuer shall pay all Costs of the Project in excess of the proceeds of the Bonds, and investment income thereon, available therefore. The Trustee shall disburse moneys on deposit in the Project Account from time to time to pay or as reimbursement for payment made for the Costs of the Project (other than Costs of Issuance), in each case within 3 Business Days after receipt by the Trustee of written disbursement requests of the Issuer in substantially the form of Exhibit C hereto, signed by the Issuer Representative. In making payments pursuant to this Section, the Trustee may rely upon such written requests and accompanying certificates and statements and shall not be required to make any independent investigation in connection therewith. The Trustee shall keep and maintain adequate records pertaining to the Project Account and all disbursements therefrom, and shall file periodic statements of activity regarding the Project Account with the Issuer. Within 90 days after the Issuer has determined that it will make no further disbursement requests to the Trustee for the payment of Costs of the Project, the Issuer shall deliver an Officer's Certificate to such effect to the Trustee. If after payment by the Trustee of all disbursement requests theretofore tendered to the Trustee under the provisions of this Section and after receipt by the Trustee of the Officer's Certificate required by this Section, there shall remain any moneys in the Project Account, such moneys shall be deposited in the Debt Service Fund and applied to redeem Bonds at the earliest permissible date under Section 301 of this Indenture; provided, in the discretion of the Issuer, such moneys may be applied for any other purpose that, based on an Opinion of Bond Counsel addressed and delivered to the Issuer and the Trustee, will not adversely affect the exclusion of the interest on the Bonds from gross income for federal income tax purposes. If an event of default specified in Section 801 of this Indenture has occurred and is continuing and the Bonds have been declared due and payable pursuant to Section 802 of this Indenture, any balance remaining in the Project Account, other than amounts required to be transferred to the Rebate Fund pursuant to Section 506 hereof, shall be deposited in the Debt Service Fund by the Trustee with advice to the Issuer of such action. "- 10-19680.08 L • Section 504. Issuer Payments; Debt Service Fund. I (a) The Issuer shall cause all Gross Revenues to be promptly deposited to the credit of the Revenue Fund. Not later than the fifth Business Day preceding the fifteenth day of each month, the Issuer is required to transfer from the Revenue Fund to the following funds in the order indicated: (i) Operation and Maintenance Fund: For deposit into the Operation and Maintenance Fund, the amount necessary to cause moneys therein to equal the System's anticipated Operating Expenses for the next succeeding two months; (ii) Prior Indebtedness Bond Funds: For deposit into the bond funds for the Prior Indebtedness, an amount equal to 1/6 of the interest due on the Prior Indebtedness on the next interest payment date plus 1/12 of the principal due on the Prior Indebtedness on the next principal or sinking fund redemption payment date after taking into account the amounts held in such funds; (iii) Prior Indebtedness Debt Service Revenue Funds: For deposit into the debt service reserve funds for the Prior Indebtedness, in any month in which a deficiency exists therein, an amount at least equal to 1/12 of the amount of such deficiency until the amount therein equals the reserve fund requirement for the Prior Indebtedness; and (iv) Renewal and Replacement Fund: For deposit into the Renewal and Replacement Fund, the amount necessary to cause the amount therein to equal $300,000 or such greater amount as the Issuer 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. (b) The Issuer shall make the following payments ("Bond Payments") to provide for the payment of interest on and principal of, and redemption premium, if any, on the Bonds, directly to the Trustee, in immediately available funds, for deposit in the Debt Service Fund and the Debt Service Reserve Fund, on the following dates, and otherwise as set out below: (i) Debt Service Fund --Interest: On or before 11:00 a.m., Arkansas time, on each Interest Payment Date or any other date that any payment of interest is required to be made in respect of the Bonds pursuant to this Indenture, an amount which is, together with any other moneys available for such purpose in the Debt Service Fund other than the Remarketing Subaccount, not less than the interest to become due on the Bonds on such Interest Payment Date or other date that interest is due. (ii) Debt Service Fund --Principal: On or before 11:00 a.m., Arkansas time, on each principal payment date with respect to the Bonds (whether at maturity or acceleration or otherwise), an amount which, together with any other moneys available for such purpose in the Debt Service Fund, is not less than the principal due on the Bonds on the next principal payment date by maturity, acceleration or otherwise. 10-19680.08 42 •. • (iii) Debt Service Fund --Redemption: On or before the date required by this Indenture, the amount required to redeem Bonds then Outstanding if the Issuer exercises its right to redeem Bonds under any provision of this Indenture or if any Bonds are required to be redeemed under any provision of this Indenture. (iv) Debt Service Reserve Fund: On or before 11:00 a.m., Arkansas time, on each Interest Payment Date in any month in which a deficiency exists in the Debt Service Reserve Fund, an amount at least equal to one -twelfth (1/12) of the original amount of such deficiency until the amount on deposit in the Debt Service Reserve Fund equals $500,000; provided, however, that during any Commercial Paper Rate Period, such deposits shall be required on the first Business Day of each month. The Trustee shall notify the Issuer of the amounts due pursuant to subparagraph (b)(i), (ii) and (iii) above at least five (5) days prior to the due date of said payments. If the Issuer fails to make any of the Bond Payments required in this Section, the item or installment so in default shall continue as an obligation of the Issuer until the amount in default shall have been fully paid, and the Issuer agrees to pay the same with interest thereon from the date when such payment was due until paid in full, at the rate of interest borne by the Bonds. In the event of any deficiency in amounts in the Revenue Fund, the deposits required pursuant to subparagraph (a)(i), (ii) and (iii) shall be made on a priority basis to the deposits required pursuant to subparagraph (b). i 1 (c) The Issuer shall make the following additional payments to the following Persons: (i) Trustee Fees and Professional Fees. The Issuer shall pay to the Trustee and any authenticating agents, registrars, paying agents, counsel, accountants and other Persons when due, all reasonable fees, charges and expenses of such Persons for services rendered under the Indenture and under any of the Financing Documents and expenses incurred in the performance of such services under the Indenture and any of the Financing Documents for which such Persons are entitled to payment or reimbursement, including expenses of compliance with the Tax Compliance Agreement. (ii) Arbitrage Rebate Payments. The Issuer shall pay to the United States Government or the Trustee for deposit in the Rebate Fund, all rebate payments required under Section 148(f) of the Internal Revenue Code, to the extent such amounts are not available to the Trustee in the Rebate Fund. (iii) Purchase Price of Tendered Bonds. The Issuer shall pay to the Trustee, at the times and in the amounts and manner herein specified, the amounts required in order to purchase any Bonds tendered for purchase pursuant to the Indenture; provided, however, that the amounts required to be paid by the Issuer under this paragraph shall be reduced by the amounts made available for such purpose from the proceeds of the remarketing of such Bonds by the Remarketing Agent deposited in the Bond Purchase Fund or through payments by the Liquidity 10-19680.08 43 Provider under the Liquidity Facility deposited in the Bond Purchase Fund under } Section 403 of this Indenture. The Issuer authorizes and directs the Trustee to demand money under the Liquidity Facility in accordance with the provisions of the Liquidity Facility and this Indenture to the extent necessary for the purchase of Bonds pursuant to this Indenture. The Issuer authorizes and directs the Trustee to apply the payments made by the Issuer under this paragraph to the payment of the purchase price of Bonds. (iv) Advances By Trustee. The Issuer shall pay to the Trustee, the amount of all advances of funds made by the Trustee under the provisions of this Indenture, with interest thereon at the prime rate announced from time to time by the Trustee. (v) Costs of Enforcement. In the event the Issuer defaults under any of the provisions of this Indenture and the Trustee employs attorneys or incurs other fees, charges and expenses for the collection of required payments or the enforcement of performance or observance of any obligation or agreement on the part of the Issuer contained in this Indenture, the Issuer on demand therefor shall pay to the Trustee the reasonable fees of such attorneys and such other fees, charges and expenses so incurred by the Trustee. The Issuer also shall pay, and shall indemnify the Trustee from and against, all costs, expenses and charges, including reasonable counsel fees, incurred for the collection of payments due or for the enforcement or performance or observance of any covenant or agreement of the Issuer under this Indenture or any other Financing Document. (vi) Other Amounts Payable. The Issuer shall pay to the Person or Persons entitled thereto, any other amounts which the Issuer is required to pay under this Indenture. (d) The Issuer shall have and is granted the option to prepay from time to time the amounts payable under this Indenture in sums sufficient to redeem or to pay or cause to be paid all or part of the Bonds in accordance with the provisions of this Indenture. Upon written notice and direction by the Issuer to the Trustee to redeem Bonds subject to optional redemption under this Indenture, the Trustee shall forthwith take all steps (other than the payment of the money required for such redemption) necessary under the applicable redemption provisions of this Indenture to effect redemption of all or part of the then Outstanding Bonds, as may be specified by the Issuer, on the date established for such redemption. Whenever any Bonds shall have been called for optional redemption under any provision of this Indenture, the Issuer shall deposit with the Trustee moneys in such amounts and at such times required to redeem such Bonds, including the principal, redemption premium, if any, and accrued interest thereon to the redemption date. The Issuer further agrees that in the event the payment of principal of and interest on the Bonds is accelerated upon the occurrence of an event of default hereunder, all Bond Payments payable for the remainder of the term of this Indenture shall be accelerated and prepayment shall be made in such amounts. Any such prepayments shall be deposited in the Debt Service Fund, and applied by the Trustee in accordance with the provisions of this Indenture. 10-19680.08 44 (e) The obligations of the Issuer under this Indenture are absolute and unconditional obligations of the Issuer; provided, however, that said obligations are payable solely from and secured solely by Net Revenues, and said pledge is junior and subordinate to a prior pledge of Net Revenues by the Issuer securing its obligations with respect to the Prior Indebtedness. The Issuer shall pay all Bond Payments and other payments due hereunder and perform its obligations, covenants and agreements hereunder, without notice or demand, and without abatement, deduction, set-off, counterclaim, recoupment, discrimination or defense or any right of termination or cancellation arising from any circumstances whatsoever, including, without limiting the generality of the foregoing, failure of the Issuer to complete the acquisition, construction, improving and equipping of the Project, the occurrence of any acts or circumstances that may constitute failure of consideration, eviction or constructive eviction, destruction of or damage to the Project, the taking by eminent domain of title to or temporary use of any or all of the Project, commercial frustration of purpose, any change in the tax or other laws of the United States of America or of the State or any political subdivision of either thereof or any failure of the Trustee to perform and observe any agreement, whether express or implied, or any duty, liability or obligation arising out of or connected with this Indenture, and regardless of the invalidity of any portion of this Indenture. To the extent permitted by law, the Issuer waives the provisions of any statute or other law now or hereafter in effect contrary to any of its obligations, covenants or agreements under this Indenture or which releases or purports to release the Issuer therefrom. (0 The Trustee shall deposit and credit to the applicable account in the Debt Service Fund, as and when received, the following: (i) Any amount required to be transferred from the Project Account to the Debt Service Fund upon completion of the Project pursuant to Section 503 hereof shall be deposited and credited to the Debt Service Fund. (ii) All Bond Payments made by the Issuer pursuant to Section 504(b) hereof shall be deposited and credited to the Debt Service Fund. (iii) Any amount required to be transferred from the Debt Service Reserve Fund pursuant to Section 504A hereof shall be deposited and credited to the Debt Service Fund. (iv) Interest earnings and other income on Permitted Investments shall be deposited and credited to the applicable account in the Debt Service Fund pursuant to Section 509 hereof. (v) All other moneys received by the Trustee under and pursuant to any of the provisions of this Indenture, when accompanied by written directions from the person depositing such moneys that such moneys are to be paid into the applicable account of the Debt Service Fund. Moneys in the Debt Service Fund shall be held in trust and shall be applied in accordance with the provisions of this Indenture to pay the principal of and redemption premium, if any, and 10-19680.08 45 interest on the Bonds as the same become due and payable at maturity, upon redemption, by } acceleration or otherwise. The Trustee shall use moneys received from the Issuer pursuant to Section 504(b) hereof and on deposit in the Debt Service Fund to pay the full amount of principal of and interest due on the Bonds on each payment date. After payment in full of the principal of, redemption premium, if any, and interest on the Bonds (or after provision has been made for the payment thereof as provided in this Indenture), all rebatable arbitrage to the United States, and the fees, charges and expenses of the Trustee, and any other amounts required to be paid to the Liquidity Provider under this Indenture, all amounts remaining in the Debt Service Fund shall be paid to the Liquidity Provider (to the extent the Liquidity Provider certifies to the Trustee that the Issuer is indebted to it under the Liquidity Facility) and then to the Issuer. Section 504A. Debt Service Reserve Fund. There shall be deposited into the Debt Service Reserve Fund from time to time the following: (a) At the time of the issuance, sale and delivery of the Bonds, the amount of $500,000; (b) All payments specified in Section 504(b)(iv) of this Indenture; and (c) All other moneys received by the Trustee under and pursuant to any of the t-? provisions of this Indenture which are required to be or which are accompanied by directions that such moneys are to be paid into the Debt Service Reserve Fund. Amounts on deposit in the Debt Service Reserve Fund shall be used and withdrawn by the Trustee for the purpose of paying the last maturing principal of the Bonds, whether at the stated payment date or upon redemption of all of the Bonds before maturity; provided, however, that whenever and to the extent that moneys on deposit in the Debt Service Fund are insufficient for paying the principal of or the interest on the Bonds, whether at the stated payment date or upon redemption prior to maturity, moneys on deposit in the Debt Service Reserve Fund shall be transferred by the Trustee to the Debt Service Fund and used for such purposes. If at any time the amount on deposit in the Debt Service Reserve Fund shall exceed $500,000, such excess shall be transferred to the Debt Service Fund and shall constitute a credit against the next succeeding payment due from the City to the Debt Service Fund. The Debt Service Reserve Fund shall be evaluated annually by the Trustee at current market value. Section 505. Bond Purchase Fund. Moneys in the Bond Purchase Fund shall be held in trust (but not as part of the Trust Estate) and shall be applied for payment of the purchase price of tendered Bonds as provided in Article IV hereof. Section 506. Rebate Fund. There shall be deposited in the Rebate Fund such amounts as are required to be deposited therein pursuant to the Tax Compliance Agreement. All amounts on deposit at any time in the Rebate Fund shall be held by the Trustee in trust to the extent 10-19680.08 46 • required to pay rebatable arbitrage to the United States of America, and neither the Issuer nor the owner of any Bonds shall have any rights in or claim to such money. The Trustee shall withdraw moneys form the Rebate Fund and remit all required rebate installments and a final rebate payment to the United States. The Trustee shall have no obligation to pay any amounts required to be rebated pursuant to this Section and the Tax Compliance Agreement, other than from moneys held in the Rebate Fund as provided in this Indenture or from other moneys provided to it by the Issuer. Any moneys remaining in the Rebate Fund after redemption and payment of all of the Bonds and payment and satisfaction of any rebatable arbitrage shall be withdrawn and paid to the Issuer. Section 507. Payments Due on Non -Business Days. In any case where the date of maturity of principal of, redemption premium, if any, or interest on the Bonds or the date fixed for redemption of any Bonds shall be a day other than a Business Day, then payment of principal, redemption premium, if any, or interest need not be made on such date but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, and no interest shall accrue for the period after such date. Section 508. Nonpresentment of Bonds. In the event any Bond 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 funds sufficient to pay such Bond shall have been made available to the Trustee, all liability of the Issuer to the owner thereof for the payment of such Bond, shall forthwith terminate and be completely discharged, and thereupon it shall be the duty of the Trustee to hold such funds in trust, without liability for interest thereon, for the benefit of the owner of such Bond, who shall thereafter be restricted exclusively to such funds for any claim of whatever nature on his part under this Indenture or on or with respect to said Bond. If any Bond shall not be presented for payment within 5 years following the date when such Bond becomes due, whether by maturity or otherwise, the Trustee shall remit the funds theretofore held by it for payment of such Bond to the State Treasurer or to such other officer, board or body as may then be entitled by law to receive the same, and thereafter the owner thereof shall be entitled to look only to the State Treasurer or to such other officer, board or body, as the case may be, for payment, and then only to the extent of the amount so remitted, and not for any interest thereon. Section 509. Investment of Moneys. The Trustee shall invest and reinvest moneys held for the credit of the Debt Service Reserve Fund in accordance with the provisions of this Indenture and the Tax Compliance Agreement and at the written direction of the Issuer in Permitted Investments which mature not later than five years from the date of investment. Moneys held in each of the other funds and accounts under this Indenture shall be invested and reinvested by the Trustee in accordance with the provisions of this Indenture and the Tax Compliance Agreement and at the written direction of the Issuer in Permitted Investments which mature or are subject to redemption by the owner thereof prior to the date such funds are expected to be needed. The Trustee may make any investments permitted by the provisions of this Section through its own bond department or short-term investment department and may pool moneys for investment purposes, except moneys held in any fund or account that are required to be yield restricted in accordance with the Tax Compliance Agreement shall not be comingled with other moneys and shall be invested separately. Any such Permitted Investments shall be held by or under the control of the Trustee and shall be deemed at all times a part of the fund or 10-19680.08 47 account in which such moneys are originally held. The interest accruing on each fund or account and any profit realized from such Permitted Investments (other than any amounts required to be deposited in the Rebate Fund pursuant to Section 506 hereof) shall be credited to such fund or account, and any loss resulting from such Permitted Investments shall be charged to such fund or account. The Trustee shall sell or present for redemption and reduce to cash a sufficient amount of such Permitted Investments whenever it shall be necessary to provide moneys in any fund or account for the purposes of such fund or account and the Trustee shall not be liable for any loss resulting from such investments. Moneys drawn under the Liquidity Facility and held by the Trustee in the Bond Purchase Fund shall be invested only in Government Obligations maturing not later than the earlier of (i) 30 days form the date of purchase or (ii) the date when such funds are needed. Section 510. Records and Reports of Trustee. The Trustee shall maintain records with respect to any and all moneys or investments held by the Trustee under this Indenture in the Project Fund, the Debt Service Fund, the Debt Service Reserve Fund, the Rebate Fund and the Bond Purchase Fund. The Trustee shall furnish to the Issuer, monthly on the tenth Business Day of each month, a statement showing the status of each of the funds and accounts established under this Article which are held by the Trustee, showing the balance in each such fund or account as of the V' day of the preceding month, the total of deposits to and the total of disbursements from each such fund or account, the dates of such deposits and disbursements, and the balance in each such fund or account on the last day of the preceding month. The Trustee shall render an annual accounting for each calendar year ending December 31 to the Issuer, showing in reasonable detail all financial transactions relating to the Trust Estate during the accounting period, including investment earnings and the balance in any funds or accounts created by this Indenture as of the beginning and close of such accounting period. ARTICLE VI LIQUIDITY FACILITY Section 601. Liquidity Facility. The Issuer shall cause the Liquidity Provider to deliver the Liquidity Facility to the Trustee simultaneously with the original issuance and delivery of the Bonds, and hereby authorizes and directs the Trustee to draw moneys under the Liquidity Facility in accordance with the provisions of this Indenture to the extent necessary to make any payments of the purchase price of the Bonds as and when the same becomes due. The Liquidity Facility delivered to the Trustee simultaneously with the original issuance and delivery of the Bonds constitutes an irrevocable obligation of the Liquidity Provider to pay to the Trustee, upon request and in accordance with the terms thereof, up to an amount equal to the sum of (i) the principal amount of the Bonds then outstanding plus (ii) an amount equal to interest for 35 days on the principal amount of each Bond then outstanding at the Maximum Rate. The Trustee shall hold the Liquidity Facility until the Liquidity Facility terminates in accordance with its terms or an Alternate Liquidity Facility is substituted for the Liquidity Facility under Section 602 hereof. If at any time during the term of the Liquidity Facility the Trustee resigns or is removed, and a successor Trustee is appointed and qualified under this Indenture, the Trustee that is resigning or being removed shall request that the Liquidity Provider 10-19680.08 48 transfer the Liquidity Facility to the successor Trustee, and shall take all actions necessary to effect the transfer of the Liquidity Facility to the successor Trustee. The Issuer shall cause the Liquidity Facility to be continuously maintained in full force and effect (except when the Bonds are being converted to the Fixed Rate) in an amount equal to the principal amount of the Outstanding Bonds plus the amount required for interest thereon, until all of the Bonds have been paid in full or their payment provided for in accordance with Article XI of this Indenture. The Issuer will exercise its best efforts to extend the term of the Liquidity Facility currently in effect or to cause an Alternate Liquidity Facility to be delivered by the Liquidity Provider to the Trustee prior to the termination date of the Liquidity Facility then in effect pursuant to the provisions of this Article. If the Issuer has provided for the extension of the stated expiration of the Liquidity Facility then in effect, the Issuer shall give written notice of such extension to the Trustee at least 30 days prior to the stated expiration of the Liquidity Facility then in effect. Section 602. Alternate Liquidity Facility. The Issuer may at any time, subject to any applicable provisions of the Liquidity Facility, arrange for the replacement of an existing Liquidity Facility with an Alternate Liquidity Facility conforming to the requirements of Section 601 hereof, and the Trustee shall accept any Alternate Liquidity Facility, subject to the following requirements and conditions: (a) Each Alternate Liquidity Facility shall be issued and delivered in substitution for an existing Liquidity Facility, under which any Person (other than the Issuer) authorizes the Trustee to draw funds or undertakes to make or provide funds to make payments of the purchase price of Bonds that have been tendered for purchase and for which proceeds of remarketing have not been received. (b) Each Alternate Liquidity Facility, or a binding commitment satisfactory to the Trustee to issue and deliver the Alternate Liquidity Facility, must be delivered to the Trustee not less than 30 days prior to the date of expiration of the then existing Liquidity Facility, must be effective as of a date on or prior to the date of expiration of the then existing Liquidity Facility, and shall expire no earlier than the Liquidity Facility which it replaces, but may be expressed to expire prior to the final maturity of the Bonds. (c) Each Alternate Liquidity Facility shall be satisfactory in form and substance to the Trustee, and shall be in a stated amount at least equal to the sum of (1) the aggregate principal amount of Bonds at the time outstanding, plus (2) required coverage for interest. Each Alternate Liquidity Facility shall have a term of at least one year and 15 days, beginning not later than the expiration date of the Liquidity Facility then in effect. If the Bonds will be in Commercial Paper Rate Periods, the term of the Alternate Liquidity Facility shall have a term that extends to at least 15 days after the longest Commercial Paper Rate Period in effect for Commercial Paper Rate Bonds. 10-19680.08 49 (d) The Issuer shall give written notice of its intention to replace the existing Liquidity Facility with an Alternate Liquidity Facility to the Trustee and each Rating Agency maintaining a rating on the Bonds not less than 30 days prior to the expiration or termination date of the Liquidity Facility then in effect. Upon receipt of such notice, the Trustee shall promptly mail a notice of the anticipated delivery of the Alternate Liquidity Facility by first-class mail to the Remarketing Agent and each bondowner. A draft of each Alternate Liquidity Facility and appropriate information concerning the issuer of such Alternate Liquidity Facility shall be submitted by the Issuer to each Rating Agency maintaining a rating on the Bonds. (e) The Issuer shall cause to be delivered to the Trustee not less than 30 days prior to the expiration or termination date of the existing Liquidity Facility (1) a commitment by the Liquidity Provider which will issue the Alternate Liquidity Facility, and (2) written notice from each Rating Agency maintaining a rating on the Bonds stating whether the substitution of such Alternate Liquidity Facility will result in a reduction or withdrawal of the rating then in effect on the Bonds. (f) Notwithstanding the foregoing, during a Commercial Paper Rate Period, an existing Liquidity Facility may not be replaced prior to the expiration date of the then applicable Commercial Paper Rate Period, with an Alternate Liquidity Facility. (g) On or prior to the effective date of any Alternate Liquidity Facility, the Issuer shall furnish to the Trustee (1) an Opinion of Counsel stating that delivery of such Alternate Liquidity Facility to the Trustee is authorized under this Indenture and complies with the terms hereof, (2) an Opinion of Counsel from counsel to the Liquidity Provider issuing such Alternate Liquidity Facility to the effect that the Alternate Liquidity Facility is a valid and binding obligation of such issuer or provider, enforceable in accordance with its terms, subject to customary exceptions relating to bankruptcy, insolvency, creditor's rights and equitable relief, (3) an Opinion of Bond Counsel, which shall also be addressed to the Issuer and the Trustee, stating that the delivery of such Alternate Liquidity Facility to the Trustee does not adversely affect the tax-exempt status of the interest on the Bonds, and (4) written evidence from each Rating Agency at the time providing a rating on the Bonds, to the effect that such rating service has reviewed the proposed Alternate Liquidity Facility and whether the substitution of the proposed Alternate Liquidity Facility for the Liquidity Facility will result in a reduction or withdrawal of its rating of the Bonds. The Issuer shall not rescind or terminate the Liquidity Facility unless all conditions to providing an Alternate Liquidity Facility has been satisfied. Section 603. Draws on Liquidity Facility. Whenever a Liquidity Facility is in effect, the Trustee shall draw amounts under the Liquidity Facility in accordance with the terms and conditions set forth therein at the times, in the manner and for the purposes set forth in this Indenture to the extent necessary to make full and timely payment of the purchase price of the Bonds in accordance with this Indenture and the Bonds, except that the Trustee may not draw on 10-19680.08 50 the Liquidity Facility to pay Liquidity Provider Bonds held by the Trustee for the benefit of the Liquidity Provider or to pay Issuer Bonds. All amounts drawn under the Liquidity Facility shall be held by the Trustee in the Liquidity Provider Purchase Account in Bond Purchase Fund and used only for the purposes set forth herein. In drawing on the Liquidity Facility, the Trustee will be acting on behalf of the bondowners by facilitating payment of their Bonds and not on behalf of the Issuer and will not be subject to the Issuer's control. In the event the Liquidity Provider fails to honor a properly presented drawing upon the Liquidity Facility, the Trustee shall provide notice thereof to the Issuer, which notice shall demand payment by the Issuer of any and all amounts then due and payable with respect to the Bonds. Upon a date Bonds are to be purchased pursuant to a tender, the Trustee shall prior to 10:00 a.m. (Arkansas time) draw under the Liquidity Facility then held by the Trustee in accordance with its terms in a manner so that immediately available funds will be available to the Trustee by 1:30 p.m. (Arkansas time) on such purchase date, in an amount sufficient, together with the remarketing proceeds of Bonds which the Remarketing Agent has delivered to the Trustee pursuant to Section 403, to enable the Trustee to pay the purchase price of such Bonds to be purchased on such purchase date, and the Trustee shall deposit those moneys directly into the Liquidity Provider Purchase Account in the Bond Purchase Fund. In the absence of notices from the Remarketing Agent pursuant to Section 403, the Trustee shall draw under the Liquidity Facility an amount sufficient to enable the Trustee to pay the purchase price of all Bonds tendered for purchase on the purchase date. Section 604. Surrender of Liquidity Facility. If at any time an Alternate Liquidity Facility is delivered to the Trustee, together with the other documents and opinions required by this Indenture, then the Trustee shall accept such Alternate Liquidity Facility and promptly (but not sooner than the 1" Business Day after the effective date of the Alternate Liquidity Facility) surrender the Liquidity Facility previously in effect to the issuer thereof, in accordance with the terms thereof, for cancellation. If at any time there shall cease to be any Bonds outstanding under this Indenture, if at any time the Bonds shall have been defeased pursuant to Article XI of this Indenture, or if the Liquidity Facility expires in accordance with the terms of such Liquidity Facility, the Trustee shall promptly (but not sooner than the 1" Business Day after the occurrence of such event) surrender the Liquidity Facility to the issuer thereof, in accordance with the terms thereof, for cancellation. The Trustee shall comply with the procedures set forth in the Liquidity Facility relating to the termination thereof. Section 605. Rights of Liquidity Provider. If (i) an event of default shall occur and be continuing under this Indenture, or (ii) the Trustee shall draw under the Liquidity Facility to pay the purchase price on the Bonds in connection with the tender in whole or in part of the Bonds, and the Liquidity Provider shall have provided the Trustee with funds pursuant to the Liquidity Facility for the payment in full of the purchase price of the Bonds tendered, then, and in such event, the Liquidity Provider shall be subrogated to all rights theretofore possessed under this Indenture by the Trustee and the bondowners in respect of which such purchase price shall have been paid with funds provided by the Liquidity Provider and not fully reimbursed to the Liquidity Provider. The Trustee will, upon request, execute and deliver any instrument reasonably requested by the Liquidity Provider to evidence such subrogation and the Trustee shall assign to the Liquidity Provider its rights in any obligations of the Issuer with respect to which payment of the entire principal balance and accrued interest thereon shall be made by the 10-19680.08 51 C Liquidity Provider. After the payment in full of all Bonds owned by the bondowners, any l^ � reference herein to the holders of the Bonds or to the bondowners shall mean the Liquidity Provider to the extent of those subrogation rights resulting from the payments made pursuant to the Liquidity Facility. Section 606. Limitation on Rights of the Liquidity Provider. Notwithstanding any provision of this Indenture to the contrary, no consent of or notice to the Liquidity Provider shall be required under any provision of this Indenture nor shall the Liquidity Provider have any right to consent to, direct or control any actions, restrictions, rights, remedies, waivers or acceleration pursuant to any provision of this Indenture during any time which: (a) the Liquidity Provider has wrongfully failed to honor a properly presented draw made under and in strict compliance with the terms of the Liquidity Facility which failure has not been cured; or (b) the Liquidity Facility is not in effect and no amounts are due and payable by the Issuer to the Liquidity Provider under the Liquidity Facility. Section 607. Issuer Purchase of Bonds. So long as the Liquidity Facility or any Alternate Liquidity Facility is in effect, the Issuer will not purchase Bonds with any moneys provided by the Issuer, except as required by Section 504(c)(iii) hereof. ARTICLE VII REPRESENTATIONS AND COVENANTS Section 701. Representations by the Issuer. The Issuer represents and warrants to the Trustee as follows: (a) Organization and Authority. The Issuer (1) is a public instrumentality duly organized and existing under the laws of the State, (2) has lawful power and authority to issue the Bonds for the purposes set forth in the Indenture, to enter into, execute and deliver this Indenture and the other Financing Documents required to be executed and delivered by the Issuer in connection with the issuance of the Bonds and to perform its obligations hereunder and thereunder, and (3) by all necessary corporate action has been duly authorized to execute and deliver this Indenture and the other Financing Documents required to be executed and delivered by it in connection with the issuance of the Bonds, acting by and through its duly authorized officers. (b) No Defaults or Violations of Law. The execution and delivery of this Indenture and the other Financing Documents by the Issuer will not result in a breach of any of the terms of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument to which the Issuer is a party or by which it or any of its property is bound or its bylaws or any of the constitutional or statutory rules or regulations applicable to the Issuer or its property. I0-19680.08 52 (c) Absence of Litigation. No litigation, proceedings or investigations are pending or, to the knowledge of the Issuer, threatened against the Issuer at law or in equity before any court, tribunal, governmental authority or arbitration board, seeking to restrain, enjoin or limit the approval or issuance and delivery of the Bonds, this Indenture or any other Financing Documents to which the Issuer is a party, or in which an unfavorable determination could materially and adversely affect the validity or enforceability of the Bonds, the Indenture or any other Financing Document to which the Issuer is a party or its ability to perform its obligations thereunder. (d) The proceeds from the sale of the Bonds will be used only for payment of Costs of the Project and related costs of issuance of the Bonds authorized and permitted by the Act. Section 702. Survival of Representations. All representations of the Issuer contained in this Indenture or in any certificate or other instrument delivered by the Issuer pursuant to this Indenture or any other Financing Document, or in connection with the transactions contemplated thereby, shall survive the execution and delivery thereof and the issuance, sale and delivery of the Bonds, as representations of facts existing as of the date of execution and delivery of the instruments containing such representations. Section 703. Issuer's Authority. The Issuer covenants that it is duly authorized under the Constitution and laws of the State to execute this Indenture, to issue the Bonds and to pledge and assign the Trust Estate in the manner and to the extent herein set forth; that all action on its ./ part for the execution and delivery of this Indenture and the issuance of the Bonds has been duly and effectively taken; and that the Bonds in the hands of the owners thereof are and will be valid and enforceable obligations of the Issuer according to the import thereof, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights to the extent applicable and their enforcement may be subject to the exercise of judicial discretion in appropriate cases. Section 704. Payment of Bonds. The Issuer shall duly and punctually pay or cause to be paid, but solely from the sources specified in this Indenture, the principal of, redemption premium, if any, and interest on the Bonds in accordance with the terms of the Bonds, this Indenture and the Liquidity Facility. When a Liquidity Facility is in effect, the Trustee will make payments of the purchase price of Bonds purchased pursuant to a tender, first, (subject to Section 403), from the remarketing proceeds of the sale of Bonds under Section 403, except proceeds from Bonds sold to, and registered in the name of, the Issuer or any "insider" of the Issuer (as defined in the United States Bankruptcy Code) identified by the Issuer to the Trustee in writing; second, from moneys drawn under the Liquidity Facility; and third, from any other moneys available to the Trustee under this Indenture. When a Liquidity Facility is not in effect, the Trustee will make payments of the purchase price of Bonds purchased pursuant to a tender, first (subject to Section 403) from the remarketing proceeds of the sale of Bonds under Section 403, and second from other moneys available to the Trustee under this Indenture. 10-19680.08 53 0 0 When a Liquidity Facility is in effect, but there has been a failure by the Liquidity Provider to honor a properly presented drawing made thereon, the Trustee will make payments of the purchase price of Bonds first (subject to Section 403) from the remarketing proceeds of the sale of Bonds under Section 403, and second from moneys provided by the Issuer for such purpose. Section 705. Performance of Covenants. The Issuer shall faithfully perform or cause to be performed at all times any and all covenants, undertakings, stipulations and provisions which are to be performed by the Issuer contained in this Indenture, in the Bonds and in all proceedings pertaining thereto. Section 706. Enforcement of Rights. The Issuer agrees that the Trustee, as assignee, transferee, pledgee, and owner of a security interest under this Indenture in its name or in the name of the Issuer may enforce all assigned rights of the Trustee under and pursuant to this Indenture and any other Financing Documents for and on behalf of the bondowners, whether or not the Issuer is in default hereunder. Section 707. Inspection of Books. The Issuer covenants and agrees that all books and documents in its possession relating to the Bonds, the System, the Project and this Indenture shall be open to inspection during business hours upon reasonable notice by the Trustee or such accountants or other agencies as the Trustee may from time to time designate. The Trustee covenants and agrees that all books and documents in its possession relating to the Bonds, the System, the Project and this Indenture, including financial statements of the Issuer relating to the System, shall be open to inspection during business hours upon reasonable notice by the Issuer or such accountants or other agencies as the Issuer may from time to time designate. Section 708. Tax Covenants. The Issuer shall not use or permit the use of any proceeds of Bonds or any other funds of the Issuer, directly or indirectly, in any manner, and shall not take or permit to be taken any other action or actions, which would adversely affect the exclusion of the interest on any Bond from gross income for federal income tax purposes. The Issuer agrees that so long as any of the Bonds remain Outstanding, it will comply with the provisions of the Tax Compliance Agreement applicable to the Issuer. The Trustee agrees to comply with the provisions of the Tax Compliance Agreement. [REMAINDER OF THIS PAGE INTENTIONALLY BLANK] 10-19680.08 54 • Notwithstanding any provision of this Section, if the Issuer provides to the Trustee an Opinion of Bond Counsel to the effect that any action required under this Section is no longer required, or to the effect that some further action is required, to maintain the exclusion of interest on the Bonds from federal gross income, the Trustee may conclusively rely on such opinion in complying with the provisions of this Indenture, and the covenants under this Indenture shall be deemed to be modified to that extent. Section 709. Continuing Disclosure. Although the Bonds are exempt from the disclosure requirements of Rule 15c2-12 (the "Rule") promulgated by the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended, and the Issuer is under no obligation under the Rule to provide or cause to be provided any annual financial information, operating data or notices of certain material events with respect to the Bonds, the Issuer has determined to provide or cause to be provided (i) certain annual financial information and operating data, if customarily prepared and publicly available, and (ii) timely notice of the occurrence of certain material events with respect to the Bonds. Section 710. Tax Covenants. The Issuer hereby represents, warrants and agrees that the Tax Compliance Agreement executed and delivered by the Issuer concurrently with the issuance and delivery of the Bonds is true, accurate and complete in all material respects as of the date on which executed and delivered. The Issuer shall comply with the Tax Compliance Agreement and covenants and agrees that it will not take any action or permit any action to be taken that would adversely affect the exclusion from gross income for federal income tax purposes of the interest on the Bonds and will take whatever action, or refrain from whatever } action, necessary to comply with the requirements of the Internal Revenue Code to maintain the exclusion from gross income for federal income tax purposes of the interest on the Bonds, and the Issuer will pay or provide for payment to the United States Government, all rebate payments required under Section 148(f) of the Internal Revenue Code and the Tax Compliance Agreement. This covenant shall survive payment in full or defeasance of the Bonds. Promptly after the Issuer first becomes aware of any Determination of Taxability (as defined in Section 301(e)), the Issuer shall give written notice thereof to the Liquidity Provider, the Trustee and the Remarketing Agent. Section 711. Rate Covenant. Subject to the immediately following sentence, the Issuer covenants to continue in effect its present schedules of rates for water and sewer services established by ordinance (the "System Rates"). System Rates shall produce Gross Revenues during each fiscal year of the System of at least 125% of the amount required for the prior fiscal year to (i) pay Operating Expenses, (ii) pay principal and interest on the Prior Indebtedness and the Bonds Outstanding, (iii) pay any Trustee fees, (iv) make required deposits into the Debt Service Reserve Fund and the debt service reserve funds securing the Prior Indebtedness, and (v) make required deposits into the Renewal and Replacement Fund. 10-19680.08 55 ARTICLE VIII ) DEFAULT AND REMEDIES Section 801. Events of Default. The term "event of default," wherever used in this Indenture, means any one of the following events (whatever the reason for such event and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (a) default in the payment of any interest on any Bond when such interest becomes due and payable; (b) default in the payment of the principal of (or premium, if any, on) any Bond when the same becomes due and payable (whether at maturity, upon proceedings for redemption, by acceleration or otherwise); (c) default in the payment of the purchase price of any Bond upon tender of such Bond to the Trustee for purchase pursuant to this Indenture when such payment becomes due and payable; (d) default in the performance, or breach, of any covenant or agreement of the Issuer in this Indenture (other than a covenant or agreement a default in the performance J--., or breach of which is specifically dealt with elsewhere in this Section), and S continuance of such default or breach for a period of 60 days after there has been given to the Issuer by the Trustee or to the Issuer and the Trustee by the owners of at least 25% in principal amount of the Bonds Outstanding, a written notice specifying such default or breach and requiring it to be remedied; provided, that if such default cannot be fully remedied within such 60 -day period, but can reasonably be expected to be fully remedied, such default shall not constitute an event of default if the Issuer shall immediately upon receipt of such notice commence the curing of such default and shall thereafter prosecute and complete the same with due diligence and dispatch; (e) [RESERVED] (f) receipt by the Trustee of written notice from the Liquidity Provider that an Event of Default under the Liquidity Facility (as defined therein) has occurred and is continuing and has not been waived by the Liquidity Provider, accompanied by written request of the Liquidity Provider to cause mandatory tender of all of the Bonds pursuant to Section 402(d) of this Indenture; (g) any representation or warranty made by the Issuer in this Indenture or in any written statement or certificate furnished to the Trustee or the purchaser of any Bond in connection with the sale of any Bond proves untrue in any material respect as of the date of the issuance or making thereof and shall not be corrected or brought into compliance within 60 days after there has been given to the Issuer by the Trustee or to the Issuer and the Trustee by the owners of at least 25% in 10-19680.08 56 0 principal amount of the Bonds Outstanding, a written notice specifying such default or breach and requiring it to be remedied; provided, that if such default cannot be fully remedied within such 60 -day period, but can reasonably be expected to be fully remedied, such default shall not constitute an event of default if the Issuer shall promptly upon receipt of such notice commence the curing of such default and shall thereafter prosecute and complete the same with due diligence and dispatch; (h) the entry of a decree or order by a court having jurisdiction in the premises for relief in respect of the Issuer, or adjudging the Issuer a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, adjustment or composition of or in respect of the Issuer under the United States Bankruptcy Code or any other applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of or for the Issuer or any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order remains unstayed and in effect for a period of 90 consecutive days; or (i) the commencement by the Issuer of a voluntary case, or the institution by the Issuer of proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to the Issuer of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, arrangement or relief under the United States Bankruptcy Code or any other applicable federal or state law, or the consent or acquiescence by it to the filing of any such petition or the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Issuer or any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability or its failure to pay its debts generally as they become due, or the taking of corporate action by the Issuer in furtherance of any such action. Section 802. Acceleration of Maturity; Rescission and Annulment. If an event of default occurs and is continuing, the Trustee may, and if requested by the owners of not less than 25% in principal amount of the Bonds Outstanding shall, by written notice to the Issuer and the Remarketing Agent, immediately declare the principal of all Bonds Outstanding and the interest accrued thereon to be due and payable, and upon any such declaration such principal and interest shall become immediately due and payable. At any time after such a declaration of acceleration has been made, but before any judgment or decree for payment of money due on any Bonds has been obtained by the Trustee as provided in this Article, the owners of a majority in principal amount of the Bonds Outstanding may, by written notice to the Issuer and the Trustee, rescind and annul such declaration and its consequences if: (a) there is deposited with the Trustee a sum sufficient to pay: (I) all overdue installments of interest on all Bonds, 10-19680.08 57 (2) the principal of (and premium, if any, on) any Bonds which have become } due otherwise than by such declaration of acceleration and interest thereon at the rate or rates prescribed therefor in such Bonds, and (3) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and (b) all events of default, other than the non-payment of the principal of Bonds which have become due solely by such declaration of acceleration, have been cured or have been waived as provided in Section 808 of this Indenture. Notwithstanding the foregoing, if the Liquidity Facility is in effect, no declaration of acceleration under this Section shall be annulled and rescinded without receipt by the Trustee of written evidence from the Liquidity Provider that the Liquidity Facility is in effect in the full stated amount in effect just prior to the acceleration and that the Liquidity Provider has rescinded any declaration of default under the Liquidity Facility. No such rescission and annulment shall affect any subsequent default or impair any right consequent thereon. Section 803. Exercise of Remedies by the Trustee. Upon the occurrence and continuance of any event of default under this Indenture, unless the same is waived as provided in this Indenture, the Trustee shall have the following rights and remedies, in addition to any other rights and remedies provided under this Indenture or by law: (a) Right to Bring Suit, Etc. The Trustee may pursue any available remedy at law or in equity by suit, action, mandamus or other proceeding to enforce the payment of the principal of, premium, if any, and interest on the Bonds Outstanding, including interest on overdue principal (and premium, if any) and on overdue installments of interest, and any other sums due under this Indenture, to realize on or to foreclose any of its interests or liens under this Indenture or any other Financing Document, to enforce and compel the performance of the duties and obligations of the Issuer as set forth in this Indenture and to enforce or preserve any other rights or interests of the Trustee under this Indenture with respect to any of the Trust Estate or otherwise existing at law or in equity. (b) Exercise of Remedies at Direction of Bondowners. If requested in writing to do so by the owners of not less than 25% in principal amount of Bonds Outstanding and if indemnified as provided in Section 902(e) of this Indenture, the Trustee shall be obligated to exercise such one or more of the rights and remedies conferred by this Article as the Trustee shall deem most expedient in the interests of the bondowners. (c) Appointment of Receiver. Upon the filing of a suit or other commencement of judicial proceedings to enforce the rights of the Trustee and of the bondowners under this Indenture, the Trustee shall be entitled, as a matter of right, to the 10-19680.08 58 0 appointment of a receiver or receivers of the Trust Estate, pending such proceedings, with such powers as the court making such appointment shall confer. (d) Suits to Protect the Trust Estate. The Trustee shall have power to institute and to maintain such proceedings as it may deem expedient to prevent any impairment of the Trust Estate by any acts which may be unlawful or in violation of this Indenture and to protect its interests and the interests of the bondowners in the Trust Estate, including power to institute and maintain proceedings to restrain the enforcement of or compliance with any governmental enactment, rule or order that may be unconstitutional or otherwise invalid, if the enforcement of or compliance with such enactment, rule or order would impair the security under this Indenture or be prejudicial to the interests of the bondowners or the Trustee, or to intervene (subject to the approval of a court of competent jurisdiction) on behalf of the bondowners in any judicial proceeding to which the Issuer is a party and which in the judgment of the Trustee has a substantial bearing on the interests of the bondowners. (e) Enforcement Without Possession of Bonds. All rights of action under this Indenture or any of the Bonds may be enforced and prosecuted by the Trustee without the possession of any of the Bonds or the production thereof in any suit or other proceeding relating thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust. Any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and subject to the provisions of Section 806 hereof, be for the equal and ratable benefit of the owners of the Bonds in respect of which such judgment has been recovered. (f) Restoration of Positions. If the Trustee or any bondowner has instituted any proceeding to enforce any right or remedy under this Indenture by suit, foreclosure, the appointment of a receiver, or otherwise, and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such bondowner, then and in every case the Issuer, the Trustee and the bondowners shall, subject to any determination in such proceeding, be restored to their former positions and rights under this Indenture, and thereafter all rights and remedies of the Trustee and the bondowners shall continue as though no such proceeding had been instituted. Section 804. Limitation on Suits by Bondowners. No owner of any Bond shall have any right to institute any proceeding, judicial or otherwise, under this Indenture, or for the appointment of a receiver or trustee or for any other remedy under this Indenture, unless: (a) such owner has previously given written notice to the Trustee of a continuing event of default; 10-19680.08 59 (b) the owners of not less than 25% in principal amount of the Bonds Outstanding } shall have made written request to the Trustee to institute proceedings in respect of such event of default in its own name as Trustee under this Indenture; (c) such owner or owners have offered to the Trustee indemnity as provided in this Indenture against the costs, expenses and liabilities to be incurred in compliance with such request; (d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and (e) no direction inconsistent with such written request has been given to the Trustee during such 60 -day period by the owners of a majority in principal amount of the Outstanding Bonds; it being understood and intended that no one or more owners of Bonds shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the lien of this Indenture or the rights of any other owners of Bonds, or to obtain or to seek to obtain priority or preference over any other owners or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all Outstanding Bonds. Notwithstanding the foregoing or any other provision in this Indenture, however, the owner of any Bond shall have the right which is absolute and unconditional to receive payment ! of the principal of (and premium, if any) and interest on such Bond on the respective stated maturity expressed in such Bond (or, in the case of redemption, on the redemption date) and nothing contained in this Indenture shall affect or impair the right of any owner to institute suit for the enforcement of any such payment. Section 805. Control of Proceedings by Bondowners. The owners of a majority in principal amount of the Bonds Outstanding shall have the right, during the continuance of an event of default: (a) to require the Trustee to proceed to enforce this Indenture, either by judicial proceedings for the enforcement of the payment of the Bonds and the foreclosure of this Indenture, or otherwise; and (b) to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this Indenture, provided that: (1) such direction shall not be in conflict with any rule of law or this Indenture, (2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and 10-19680.08 60 (3) the Trustee shall not determine that the action so directed would be unjustly prejudicial to the owners not taking part in such direction. Section 806. Application of Moneys Collected. Any moneys collected by the Trustee pursuant to this Article (after the deductions for payment of costs and expenses of proceedings resulting in the collection of such moneys) together with any other sums then held by the Trustee as part of the Trust Estate, shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, upon presentation of the Bonds and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid (provided that moneys received pursuant to draws on the Liquidity Facility shall be applied solely to the payment of the purchase price of the Bonds as provided in this Indenture): (a) First: To the payment of all amounts due the Trustee under Section 904 of this Indenture; (b) Second: To the payment of the whole amount then due and unpaid upon the Outstanding Bonds for principal (and premium, if any) and interest, in respect of which or for the benefit of which such money has been collected, with interest (to the extent that such interest has been collected by the Trustee or a sum sufficient therefor has been so collected and payment thereof is legally enforceable at the respective rate or rates prescribed therefor in the Bonds) on overdue principal (and premium, if any) and on overdue installments of interest; and in case such proceeds shall be insufficient to pay in full the whole amount so due and unpaid upon such Bonds, then to the payment of such principal and interest, without any preference or priority, ratably according to the aggregate amount so due; and (c) Third: To the payment to the Liquidity Provider of any amounts due and owing under the Liquidity Facility and the payment of the remainder, if any, to the Issuer or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct. Whenever moneys are to be applied by the Trustee pursuant to the provisions of this Section, such moneys shall be applied by it at such times, and from time to time, as the Trustee shall determine, having due regard for 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 moneys, 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 date 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 owner of any unpaid Bond until such Bond shall be presented to the Trustee for appropriate endorsement or for cancellation if fully paid. Section 807. Rights and Remedies Cumulative. No right or remedy herein conferred upon or reserved to the Trustee or to the bondowners is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative 10-19690.08 61 • and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. No delay or omission of the Trustee or of any owner of any Bond to exercise any right or remedy accruing upon an event of default shall impair any such right or remedy or constitute a waiver of any such event of default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the bondowners may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the bondowners, as the case may be. Section 808. Waiver of Past Defaults. Before any judgment or decree for payment of money due has been obtained by the Trustee as provided in this Article, the owners of a majority in principal amount of the Bonds Outstanding may, by written notice delivered to the Trustee and the Issuer, on behalf of the owners of all the Bonds waive any past default hereunder and its consequences, except a default: (a) in the payment of the principal of (or premium, if any) or interest on any Bond, or (b) in respect of a covenant or provision hereof which under Article X cannot be modified or amended without the consent of the owner of each Outstanding Bond affected. Notwithstanding the foregoing, so long as a Liquidity Facility is in effect, the Trustee shall not waive any event of default without the receipt of written notice from the Liquidity Provider that the Liquidity Facility is reinstated up to the full amount available. Upon any such waiver, such default shall cease to exist, and any event of default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to or affect any subsequent or other default or impair any right or remedy consequent thereon. Section 809. Advances by Trustee. If the Issuer shall fail to make any payment or perform any of its covenants in this Indenture, the Trustee may, at any time and from time to time, use and apply any moneys held by it under this Indenture, except money drawn on the Liquidity Facility, or make advances, to effect payment or performance of any such covenant on behalf of the Issuer. All moneys so used or advanced by the Trustee, together with interest at the Trustee's announced prime rate per annum, shall be repaid by the Issuer upon demand and such advances shall be secured under this Indenture prior to the Bonds. For the repayment of all such advances the Trustee shall have the right to use and apply any moneys, except money drawn on the Liquidity Facility, at any time held by it under this Indenture but no such use of moneys or advance shall relieve the Issuer from any default hereunder. 10-19680.08 62 • ARTICLE IX THE TRUSTEE Section 901. Acceptance of Trusts; Certain Duties and Responsibilities. The Trustee accepts and agrees to execute the trusts imposed upon it by this Indenture, but only upon the following terms and conditions: (a) Except during the continuance of an event of default: (1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (2) in the absence of bad faith, gross negligence or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture. (b) If an event of default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent corporate trustee would exercise or use under the circumstances. (c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct or bad faith, except that: (1) this subsection shall not be construed to limit the effect of subsection (a) of this Section; (2) the Trustee shall not be liable for any error of judgment made in good faith by an authorized officer of the Trustee, unless it shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts; (3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Liquidity Provider or the owners of a majority in principal amount of the Outstanding Bonds relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; and 10-19680.08 63 n (4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section. Section 902. Certain Rights of Trustee. Except as otherwise provided in Section 901 of this Indenture: (a) The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. (b) The Trustee shall be entitled to rely upon an Officer's Certificate as to the sufficiency of any request or direction of the Issuer mentioned herein, the existence or non-existence of any fact or the sufficiency or validity of any } instrument, paper or proceeding, or that a resolution or ordinance in the form therein set forth has been duly adopted by the City Council of the Issuer and is in full force and effect. (c) Whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon a written certificate of the Issuer Representative. (d) The Trustee may consult with counsel, and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by the Trustee hereunder in good faith and in reliance thereon. (e) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the bondowners pursuant to this Indenture, unless such bondowners shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities (except as may result from the Trustee's own gross negligence, willful misconduct or bad faith) which might be incurred by it in compliance with such request or direction; provided that the Trustee may not require indemnity as a condition to declaring the principal of or interest on the Bonds to be due and payable under 10-19680.08 Section 802, to drawing on the Liquidity Facility or to making any payment of principal, purchase price, premium or interest on the Bonds. (f) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney. (g) The Trustee assumes no responsibility for the correctness of the recitals contained in this Indenture and in the Bonds, except the certificate of authentication on the Bonds. The Trustee makes no representations as to the value or condition of the Trust Estate or any part thereof, or as to the title thereto or as to the security afforded thereby or hereby, or as to the validity or sufficiency of this Indenture or of the Bonds. The Trustee shall not be accountable for the use or application by the Issuer of any of the Bonds or the proceeds thereof or of any money paid to or upon the order of the Issuer under any provision of this Indenture. (h) The Trustee, in its individual or any other capacity, may become the owner or pledgee of Bonds and may otherwise deal with the Issuer with the same rights it would have if it were not Trustee. ; (i) All money received by the Trustee shall, until used or applied or invested as herein provided, be held in trust for the purposes for which they were received. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law or by this Indenture. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Issuer. (j) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. Section 903. Notice of Defaults. The Trustee shall not be required to take notice or be deemed to have notice of any default hereunder except a default in any of the payments to the Trustee required to be made by Article V of this Indenture, unless the Trustee shall be specifically notified in writing of such default by the Issuer or the owners of at least 25% in principal amount of all Bonds Outstanding or the Liquidity Provider, and in the absence of such notice so delivered, the Trustee may conclusively assume there is no default except as aforesaid. Within 30 days after the occurrence of any default hereunder of which the Trustee is required to take notice or has received notice as provided in this Section, the Trustee shall give written notice of such default by mail to the Issuer, the Liquidity Provider and all owners of Bonds as shown on the bond register maintained by the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal 10-19680.08 65 or purchase price of or interest on any Bond, the Trustee shall be protected in withholding such notice if and so long as the Trustee in good faith determines that the withholding of such notice is in the interests of the bondowners. For the purpose of this Section, the term "default" means any event which is, or after notice or lapse of time or both would become, an event of default. Section 904. Compensation and Reimbursement. The Trustee shall be entitled to payment or reimbursement: (a) from time to time for reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (b) except as otherwise expressly provided herein, upon its request, for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture, but such payments and reimbursement, in combination with the compensation described in (a), shall not exceed $5,000 annually without the prior written approval of the Issuer, which approval shall not be unreasonably withheld; provided, however, that the Issuer shall not be obligated to make any payment or reimbursement with respect to any such expense, disbursement or advance as may be attributable to the Trustee's gross negligence, willful misconduct or bad faith; (c) for the reasonable compensation and expenses and disbursements of its agents and counsel, but such payments and reimbursement, in combination with the compensation payments and reimbursement described in (a) and (b), shall not exceed $10,000 annually unless such agents or counsel and such compensation, expenses and disbursements shall be approved by the Issuer, which approval shall not be unreasonably withheld; and (d) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without gross negligence, willful misconduct or bad faith on its part, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder, except that the Trustee may not require that indemnity be furnished as a condition to taking any action in connection with any draw on the Liquidity Facility required hereunder, or making payment on the Bonds when due or causing any acceleration or mandatory redemption or mandatory tender of the Bonds. The Trustee shall promptly notify the Issuer in writing of any claim or action brought against the Trustee in respect of which indemnity may be sought against the Issuer, setting forth the particulars of such claim or action, and the Issuer will assume the defense thereof, including the employment of counsel satisfactory to the Trustee and the payment of all expenses. The Trustee may employ separate counsel in any such action and participate in the defense thereof, and the reasonable fees and expenses of such counsel shall not be payable by the Issuer unless such employment has been specifically authorized by the Issuer. 10-19680.08 66 0 Pursuant to the provisions of this Indenture, the Issuer has agreed to pay to the Trustee all reasonable fees, charges, advances and expenses of the Trustee, and the Trustee agrees to look only to the Issuer for the payment of all reasonable fees, charges, advances and expenses of the Trustee as provided herein. As security for the payment of such compensation, expenses, reimbursements and indemnity under this Section, the Trustee shall be secured under this Indenture by a lien prior to the Bonds (except with respect to moneys drawn under the Liquidity Facility in the Liquidity Facility Account of the Bond Purchase Fund), and shall have the right to use and apply any trust moneys held by it under Article V hereof (except moneys drawn under the Liquidity Facility). Section 905. Corporate Trustee Required; Eligibility. There shall at all times be a Trustee hereunder which shall be a commercial bank or trust company organized and doing business under the laws of the United States of America or of any state thereof, authorized under such laws to exercise corporate trust powers, subject to supervision or examination by federal or state authority, and having a combined capital and surplus of at least $50,000,000, or must provide a guaranty of the full and prompt performance by the Trustee of its obligations under this Indenture and any other agreements made in connection with the Bonds, on terms satisfactory to the Issuer, by a guarantor with such combined capital and surplus. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of such supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect specified in this Article. Section 906. Resignation and Removal of Trustee. (a) The Trustee may resign at any time by giving written notice thereof to the Issuer, the Liquidity Provider, the Remarketing Agent and each owner of Bonds Outstanding as shown by the list of bondowners required by this Indenture to be kept by the Trustee. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee. (b) The Trustee may be removed at any time by an instrument or concurrent instruments in writing delivered to the Issuer, the Liquidity Provider, the Remarketing Agent and the Trustee signed by the owners of a majority in principal amount of the Outstanding Bonds, or, so long as the Issuer is not in default hereunder, by the Issuer. The Issuer or any bondowner may at any time petition any court of competent jurisdiction for the removal for cause of the Trustee. 10-19680.08 67 r (c) If at any time: (1) the Trustee shall cease to be eligible under Section 905 and shall fail to resign after written request therefor by the Issuer or by any such bondowner, or (2) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, the Issuer may remove the Trustee or any bondowner may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. The Trustee shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee by mailing written notice of such event by first-class mail, postage prepaid, to the registered owners of Bonds as their names and addresses appear in the bond register maintained by the Trustee. Each notice shall include the name of the successor Trustee and the address of its principal corporate trust office or other designated payment office. No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee under Section 908. Section 907. Appointment of Successor Trustee. If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Issuer, or the owners of a majority in principal amount of Bonds Outstanding (if an event of default hereunder has occurred and is continuing), by an instrument or concurrent instruments in writing delivered to the Issuer and the retiring Trustee, shall promptly appoint a successor Trustee. In case all or substantially all of the Trust Estate shall be in the possession of a receiver or trustee lawfully appointed, such receiver or trustee, by written instrument, may similarly appoint a temporary successor to fill such vacancy until a new Trustee shall be so appointed by the Issuer or the bondowners. If, within 30 days after such resignation, removal or incapability or the occurrence of such vacancy, a successor Trustee shall be appointed in the manner herein provided, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee and supersede the retiring Trustee and any temporary successor Trustee appointed by such receiver or trustee. If no successor Trustee shall have been so appointed and accepted appointment in the mariner herein provided, the Trustee or any bondowner may petition any court of competent jurisdiction for the appointment of a successor Trustee, until a successor shall have been appointed as above provided. The successor so appointed by such court shall immediately and without further act be superseded by any successor appointed as above provided. Every such successor Trustee appointed pursuant to the provisions of this Section shall be a bank with trust powers or trust company in good standing under the law of the jurisdiction in which it was created and by which it exists, meeting the eligibility requirements of this Article. 10-19680.08 68 0 Section 908. Acceptance of Appointment by Successor. Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Issuer and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the estates, properties, rights, powers, trusts and duties of the retiring Trustee; but, on request of the Issuer or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument conveying and transferring to such successor Trustee upon the trusts herein expressed all the estates, properties, rights, powers and trusts of the retiring Trustee, and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject nevertheless to its lien, if any, provided for in Section 904. Upon request of any such successor Trustee, the Issuer shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such estates, properties, rights, powers and trusts. No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article. Section 909. Merger, Consolidation and Succession to Business. Any corporation or association into which the Trustee may be merged or with which it may be consolidated, or any corporation or association resulting from any merger or consolidation to which the Trustee shall be a party, or any corporation or association succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation or association shall be otherwise qualified and eligible under this Article, and shall be 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 paper or any further act on the part of any of the parties hereto. In case any Bonds shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger or consolidation to such authenticating Trustee may adopt such authentication and deliver the Bonds so authenticated with the same effect as if such successor Trustee had itself authenticated such Bonds. Section 910. Co -Trustees and Separate Trustees. At any time or times, for the purpose of meeting the legal requirements of any jurisdiction in which any of the Trust Estate may at the time be located, or in the enforcement of any default or the exercise any of the powers, rights or remedies herein granted to the Trustee, or any other action which may be desirable or necessary in connection therewith, the Trustee shall have power to appoint, and, upon the written request of the Trustee or of the owners of at least 25% in principal amount of the Bonds Outstanding, the Issuer shall for such purpose join with the Trustee in the execution, delivery and performance of all instruments and agreements necessary or proper to appoint, one or more Persons approved by the Trustee either to act as co -trustee, jointly with the Trustee, of all or any part of the Trust Estate, or to act as separate trustee of any such property, in either case with such powers as may be provided in the instrument of appointment, and to vest in such person or persons in the capacity aforesaid, any property, title, right or power deemed necessary or desirable, subject to the other provisions of this Section. If the Issuer does not join in such appointment within 15 days after the receipt by it of a request so to do, or in case an event of 10-19680.08 69 • default has occurred and is continuing, the Trustee alone shall have power to make such appointment. Should any written instrument from the Issuer be required by any co -trustee or separate trustee so appointed for more fully confirming to such co -trustee or separate trustee such property, title, right or power, any and all such instruments shall, on request, be executed, acknowledged and delivered by the Issuer. Every co -trustee or separate trustee shall, to the extent permitted by law, but to such extent only, be appointed subject to the following terms, namely: (a) The Bonds shall be authenticated and delivered, and all rights, powers, duties and obligations hereunder in respect of the custody of securities, cash and other personal property held by, or required to be deposited or pledged with, the Trustee hereunder, shall be exercised solely, by the Trustee. (b) The rights, powers, duties and obligations hereby conferred or imposed upon the Trustee in respect of any property covered by such appointment shall be conferred or imposed upon and exercised or performed by the Trustee or by the Trustee and such co -trustee or separate trustee jointly, as shall be provided in the instrument appointing such co -trustee or separate trustee, except to the extent that under any law of any jurisdiction in which any particular act is to be performed, the Trustee shall be incompetent or unqualified to perform such act, in which event such rights, powers, duties and obligations shall be exercised and performed by such co -trustee or separate trustee. (c) The Trustee at any time, by an instrument in writing executed by it, with the concurrence of the Issuer evidenced by a resolution, may accept the resignation of or remove any co -trustee or separate trustee appointed under this Section, and, in case an event of default has occurred and is continuing, the Trustee shall have power to accept the resignation of, or remove, any such co -trustee or separate trustee without the concurrence of the Issuer. Upon the written request of the Trustee, the Issuer shall join with the Trustee in the execution, delivery and performance of all instruments and agreements necessary or proper to effectuate such resignation or removal. A successor to any co -trustee or separate trustee so resigned or removed may be appointed in the manner provided in this Section. (d) No co -trustee or separate trustee hereunder shall be personally liable by reason of any act or omission of the Trustee, or any other such trustee hereunder. (e) Any request, demand, authorization, direction, notice, consent, waiver or other act of bondowners delivered to the Trustee shall be deemed to have been delivered to each such co -trustee and separate trustee. Section 911. Designation of Alternate Paying Agents. The Trustee may, in its discretion, cause the necessary arrangements to be made through the Trustee and to be thereafter continued for the designation of alternate paying agents, if any, and for the making available of funds hereunder for the payment of the principal of, premium, if any, and interest on the Bonds, 10-19680.08 • or at the principal corporate trust office or other designated payment office of said alternate paying agents. In the event of a change in the office of Trustee, the predecessor Trustee which has resigned or been removed shall cease to be trustee of any funds provided hereunder and paying agent for principal of, premium, if any, and interest on the Bonds, and the successor Trustee shall become such Trustee and paying agent unless a separate paying agent or agents are appointed by the Issuer in connection with the appointment of any successor Trustee. ARTICLE X SUPPLEMENTAL INDENTURES Section 1001. Supplemental Indentures without Consent of Bondowners. Without the consent of the owners of any Bonds, but with the prior written consent of the Liquidity Provider, the Issuer and the Trustee may from time to time enter into one or more Supplemental Indentures for any of the following purposes: (a) to more precisely identify the Project financed out of the proceeds of the Bonds, or to substitute or add additional property thereto, or to correct or amplify the description of any property at any time subject to the lien of this Indenture, or better to assure, convey and confirm unto the Trustee any property subject or required to be subjected to the lien of this Indenture, or to subject to the lien of this Indenture additional property; ( (b) to add to the conditions, limitations and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Bonds, as herein set forth, additional conditions, limitations and restrictions thereafter to be observed; (c) to evidence the appointment of a separate trustee or the succession of a new trustee under this Indenture, or the appointment of a new Remarketing Agent or Trustee, and in connection therewith to change any times of day specified herein by which any action must be taken; (d) while the Bonds bear interest at Weekly Rates or Commercial Paper Rates, (1) to alter the manner in which the Remarketing Agent may, in the reasonable exercise of its judgment, act pursuant to Section 202(a) to increase the likelihood of achieving the lowest net interest cost during the term of the Bonds, but only if the Issuer provides an Opinion of Bond Counsel addressed to the Trustee to the effect that the amendment will not adversely affect the exclusion from gross income on any Bonds for federal income tax purposes; (2) to change the number of days specified for the giving of notices in Section 202 and to make corresponding changes to the period for notice of mandatory tender of the Bonds, to provide for an uncertificated system of registering the Bonds or to provide for changes to or from the Book -Entry System; (3) to make any change to the effect on a mandatory tender date if disclosed to all purchasers on the purchase date; (4) to add another method of determining the interest rate on the Bonds, and to make any change necessary to preserve the exclusion of interest on the Bonds from the gross 10-19680.08 71 income of the owners thereof for federal income tax purposes; or (5) to alter, prior to the applicable conversion of the Bonds to the Fixed Rate, the manner in which a schedule of principal payments and interest rates may be set pursuant to Section 202(f), or the redemption provisions to be applicable to Bonds accruing interest at the Fixed Rate, but only if the Issuer provides an Opinion of Bond Counsel addressed to the Trustee to the effect that the amendment will not adversely affect the exclusion from gross income on any Bonds for federal income tax purposes; (e) to add to the covenants of the Issuer or to the rights, powers and remedies of the Trustee for the benefit of the owners of all of the Bonds or to surrender any right or power herein conferred upon the Issuer; (f) to cure any ambiguity, to correct or supplement any provision in this Indenture which may be inconsistent with any other provision herein or to make any other change, with respect to matters or questions arising under this Indenture, provided such action shall not materially adversely affect the interests of the owners of the Bonds; (g) to provide for an Alternate Liquidity Facility; or (h) to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to effect the qualification of this Indenture under the Trust Indenture Act of 1939, as amended, or under any similar federal statute hereafter enacted, or to permit the qualification of the Bonds for sale under the securities laws of the United States or any state of the United States. Section 1002. Supplemental Indentures with Consent of Bondowners. With the consent of the Liquidity Provider and the owners of not less than a majority in principal amount of the Bonds then Outstanding affected by such Supplemental Indenture, the Issuer and the Trustee may enter into one or more Supplemental Indentures for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the owners of the Bonds under this Indenture; provided, however, that no such Supplemental Indenture shall, without the consent of the owner of each Outstanding Bond affected thereby, (a) change the stated maturity of the principal of, or any installment of interest on, any Bond, or reduce the principal amount or purchase price thereof or the interest thereon or any premium payable upon the redemption thereof, or change any place of payment where, or the coin or currency in which, any Bond, or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the stated maturity thereof (or, in the case of redemption, on or after the redemption date); (b) reduce the percentage in principal amount of the Outstanding Bonds, the consent of whose owners is required for any such Supplemental Indenture, or the consent of whose owners is required for any waiver provided for in this Indenture of 10-19680.08 72 • compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences; (c) modify the obligation of the Issuer to make payment on or provide funds for the payment of any Bond or eliminate the holders' rights to optionally tender the Bonds, or extend the due date for the purchase of Bonds optionally tendered by the holders thereof or reduce the purchase price of such Bonds; (d) modify or alter the provisions of the proviso to the definition of the term "Outstanding"; (e) modify any of the provisions of this Section or Section 808, except to increase any percentage provided thereby or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the owner of each Bond affected thereby; or (f) permit the creation of any lien ranking prior to or on a parity with the lien of this indenture with respect to any of the Trust Estate (except as provided in Section 210) or terminate the lien of this Indenture on any property at any time subject hereto or deprive the owner of any Bond of the security afforded by the lien of this Indenture. The Trustee may in its discretion determine whether or not any Bonds would be affected r- -. by any Supplemental Indenture and any such determination shall be conclusive upon the owners of all Bonds, whether theretofore or thereafter authenticated and delivered hereunder. The Trustee shall not be liable for any such determination made in good faith. It shall not be necessary for the required percentage of owners of Bonds under this Section to approve the particular form of any proposed Supplemental Indenture, but it shall be sufficient if such act shall approve the substance thereof. Section 1003. Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any Supplemental Indenture permitted by this Article or the modification thereby of the trusts created by this Indenture, the Trustee shall receive, and, subject to Section 901, shall be fully protected in relying upon, an Opinion of Bond Counsel addressed and delivered to the Trustee and the Issuer stating that the execution of such Supplemental Indenture is permitted by and in compliance with this Indenture, and that the execution and delivery thereof will not adversely affect the exclusion from federal gross income of interest on the Bonds. The Trustee may, but shall not, except to the extent required in the case of any Supplemental Indenture entered into under Section 1001(h), be obligated to, enter into any such Supplemental Indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. Section 1004. Effect of Supplemental Indentures. Upon the execution of any Supplemental Indenture under this Article, this Indenture shall be modified in accordance therewith and such Supplemental Indenture shall form a part of this Indenture for all purposes; and every owner of Bonds theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. 10-19680.08 73 Section 1005. Reference in Bonds to Supplemental Indentures. Bonds authenticated and delivered after the execution of any Supplemental Indenture pursuant to this Article may, and if required by the Trustee shall, bear a notation in form approved by the Trustee as to any matter provided for in such Supplemental Indenture. If the Issuer shall so determine, new Bonds so modified as to conform, in the opinion of the Trustee and the Issuer, to any such Supplemental Indenture may be prepared and executed by the Issuer and authenticated and delivered by the Trustee in exchange for Outstanding Bonds. Section 1006. Remarketing Agent Consent to Supplemental Indentures. A Supplemental Indenture under this Article will not become effective unless and until the Remarketing Agent (but only to the extent that such amendment or supplement affects the rights, duties or obligations of the Remarketing Agent hereunder) consents in writing to the execution and delivery of such Supplemental Indenture. ARTICLE XI SATISFACTION AND DISCHARGE Section 1101. Payment, Discharge and Defeasance of Bonds. Bonds will be deemed to be paid and discharged and no longer Outstanding under this Indenture and will cease to be entitled to any lien, benefit or security of this Indenture if the Issuer shall pay or provide for the payment of such Bonds in any one or more of the following ways: (a) by paying or causing to be paid the principal of (including redemption premium, if any) and interest on such Bonds, as and when the same become due and payable; (b) by delivering such Bonds to the Trustee for cancellation; or (c) by depositing in trust with the Trustee moneys and Government Obligations in an amount, together with the income or increment to accrue thereon, without consideration of any reinvestment thereof, sufficient to pay or redeem (when redeemable) and discharge the indebtedness on such Bonds at or before their respective maturity or redemption dates (including the payment of the principal of, premium, if any, and interest payable on such Bonds to the maturity or redemption date thereof); provided that, if any such Bonds are to be redeemed prior to the maturity thereof, notice of such redemption is given in accordance with the requirements of this Indenture or provision satisfactory to the Trustee is made for the giving of such notice; and further provided that Bonds that bear interest at other than the Fixed Rate with respect to, shall not be deemed to have been paid and discharged within the meaning of this Section unless the interest rate payable on such Bonds that may change to a different rate, is calculated at the Maximum Rate. The Bonds may be defeased in advance of their maturity or redemption dates only with cash or Government Obligations pursuant to subsection (c) above, subject to receipt by the Trustee of (1) a verification report prepared by independent certified public accountants, or other 10-19680.08 74 .. 0 I verification agent (which may be the Remarketing Agent), satisfactory to the Trustee and the Issuer, to the effect that the payment of the principal of and redemption premium, if any, and interest on all of the Bonds then Outstanding and any and all other amounts required to be paid under the provisions of this Indenture has been provided for in the manner set forth in this Indenture, and (2) an Opinion of Bond Counsel addressed and delivered to the Trustee and the Issuer to the effect that so providing for the payment of any Bonds will not adversely affect the exclusion of the interest on the Bonds from gross income for federal income tax purposes, notwithstanding the satisfaction and discharge of this Indenture. In any case, if the Bonds are rated by a Rating Agency, the Bonds shall not be deemed to have been paid or discharged by reason of any deposit pursuant to paragraphs (a) and/or (c) above unless such Rating Agency shall have confirmed in writing to the Trustee that its rating will not be withdrawn or lowered as the result of any such deposit. The foregoing notwithstanding, the liability of the Issuer in respect of such Bonds shall continue, but the owners thereof shall thereafter be entitled to payment only out of the moneys and Government Obligations deposited with the Trustee as aforesaid. Moneys and Government Obligations so deposited with the Trustee pursuant to this Section shall not be a part of the Trust Estate but shall constitute a separate trust fund for the benefit of the Persons entitled thereto. Such moneys and Government Obligations shall be applied by the Trustee to the payment to the Persons entitled thereto, of the principal and premium, if any) and interest for whose payment such moneys and Government Obligations have } been deposited with the Trustee. Section 1102. Satisfaction and Discharge of Indenture. This Indenture and the lien, rights and interests created by this Indenture shall cease, determine and become null and void (except as to any surviving rights under Section 1103 hereof) if the following conditions are met: (a) the principal of, premium, if any, and interest on all Bonds has been paid or is deemed to be paid and discharged by meeting the conditions of Section 1101; (b) all other sums payable under this Indenture with respect to the Bonds are paid or provision satisfactory to the Trustee is made for such payment; (c) the Trustee receives an Opinion of Bond Counsel (which may be based upon a ruling or rulings of the Internal Revenue Service) addressed and delivered to the Trustee and the Issuer to the effect that so providing for the payment of any Bonds will not adversely affect the exclusion of the interest on the Bonds from gross income for federal income tax purposes, notwithstanding the satisfaction and discharge of this Indenture; (d) the Trustee receives an opinion of nationally recognized bankruptcy counsel addressed to the Trustee and the Issuer to the effect that any deposit of cash or securities and any deposit of investment earnings thereon to effect such defeasance and subsequent payment to owners of the Bonds shall not constitute a voidable preference in a case commenced under the United States Bankruptcy 10-19680.08 75 Code (including §§ 544 and 547 thereof) or any applicable state statute by or against the Issuer; and (e) the Trustee receives an Opinion of Counsel addressed and delivered to the Trustee and the Issuer to the effect that all conditions precedent in this Section to the satisfaction and discharge of this Indenture have been complied with. Thereupon, the Trustee shall execute and deliver to the Issuer a termination statement and such instruments of satisfaction and discharge of this Indenture as may be necessary and shall pay, assign, transfer and deliver to the Issuer, or other Persons entitled thereto, all moneys, securities and other property then held by it under this Indenture as a part of the Trust Estate, other than moneys or Government Obligations held in trust by the Trustee as herein provided for the payment of the principal of, premium, if any, and interest on the Bonds. Section 1103. Rights Retained After Discharge. Notwithstanding the satisfaction and discharge of this Indenture, the rights of the Trustee under Section 904 shall survive, and the Trustee shall retain such rights, powers and duties under this Indenture as may be necessary and convenient for the payment of amounts due or to become due on the Bonds and the registration, transfer and exchange of Bonds as provided herein. Nevertheless, any moneys held by the Trustee for the payment of_the principal of, redemption premium, if any, purchase price, or interest on any Bond remaining unclaimed for 5 years after the principal of all Bonds has become due and payable, whether at maturity or upon proceedings for redemption or by declaration as provided herein, shall then be paid to the State Treasurer or to such other officer, board or body as may then be entitled by law to receive the same, and thereafter the owner thereof shall be entitled to look only to the State Treasurer or to such other officer, board or body, as the case may be, for payment, and then only to the extent of the amount so remitted, and not for any interest thereon. ARTICLE XII MISCELLANEOUS PROVISIONS Section 1201. Notices. Except as otherwise provided herein, it shall be sufficient service of any notice, request, demand, authorization, direction, consent, waiver or other paper required or permitted by this Indenture to be made, given or furnished to or filed with the following Persons, if the same shall be delivered in person or duly mailed by first class mail, postage prepaid or duly transmitted by telecopy, at the following addresses or telecopy numbers: (a) To the Issuer at: City of Fayetteville, Arkansas 113 West Mountain Fayetteville, Arkansas 72701 Attention: John Maguire, Administrative Services Director Telecopy: 501-575-8257 10-19680.08 76 (b) To the Trustee and Tender Agent at: Bank of Oklahoma, N.A. P. O. Box 880 Tulsa, Oklahoma 74101-0880 Attention: Corporate Trust Department Telecopy: 918-588-6083 (c) To the Bondowners: At the addresses of the bondowners as shown on the bond register maintained by the Trustee under this Indenture. (d) To the Liquidity Provider at: Bank of America One East Center Street Fayetteville, Arkansas 72701 Attention: Larry Manry Telecopy: 501-872-4355 (e) To the Securities Depository at: The Depository Trust Company 7 Hanover Square, 23`° Floor New York, New York 10004-2695 Attention: Supervisor, Put Bond Unit Reorganization Department Telecopy: 212-709-1723 (f) To the Remarketing Agent at: Bank of America Securities, LLC 121 West Trade Street, 12th Floor Charlotte, North Carolina 28255 Attention: Tax Exempt Note Trading Telecopy: 704-388-0393 If, because of the temporary or permanent suspension of mail service or for any other reason, it is impossible or impractical to mail any notice in the manner herein provided, then such delivery of notice in lieu thereof as shall be made with the approval of the Trustee shall constitute a sufficient notice. If notice to bondowners is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular bondowner shall affect the sufficiency of such notice with respect to other bondowners. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers 10-19680.08 77 of notice by bondowners shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. Section 1202. Notices to Liquidity Provider and Rating Agencies. The Trustee shall also give notice to the Liquidity Provider and to each Rating Agency then maintaining a rating on the Bonds if: (a) the Trustee resigns or is removed, or a new Trustee or Co -Trustee is appointed; (b) all of the Bonds are paid, redeemed or defeased in accordance with the provisions of this Indenture; (c) an event of default or acceleration occurs or the Trustee waives any event of default or acceleration under this Indenture; (d) any amendment is made to this Indenture or any of the other Financing Documents; (e) the Liquidity Facility is replaced or terminated or there is any termination, substitution, extension or expiration of the Liquidity Facility; (f) any conversion from one type of rate period to another type of rate period; (g) the giving of notice of a mandatory purchase or a redemption of Bonds in whole } or in part, or a payment of all principal, interest and premium, if any, on the Bonds; or (h) appointment of an alternate tender agent, paying agent or Remarketing Agent. Section 1203. Acts of Bondowners. Any notice, request, demand, authorization, direction, consent, waiver or other action provided by this Indenture to be given or taken by bondowners may be embodied in and evidenced by one or more substantially concurrent instruments of similar tenor signed by such bondowners in person or by an agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee, and, where it is hereby expressly required, to the Issuer. Proof of execution of any such instrument or of a writing appointing any such agent, or of the ownership of Bonds, shall be sufficient for any purpose of this Indenture and conclusive in favor of the Issuer and the Trustee, if made in the following mariner: (a) The fact and date of the execution by any Person of any such instrument or writing may be proved by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof, or by the affidavit of a witness of such execution. Whenever such execution is by an officer of a corporation or a member of a partnership on behalf of such corporation or partnership, such certificate or affidavit shall also constitute sufficient proof of his authority. v1 (b) The fact and date of execution of any such instrument or writing and the authority of any Person executing the same may also be proved in any other manner which the Trustee deems sufficient; and the Trustee may in any instance require further proof with respect to any of the matters referred to in this Section. (c) The 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 bond register maintained by the Trustee. In determining whether the owners of the requisite principal amount of Bonds Outstanding have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Bonds registered in the name of the Issuer shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Bonds which the Trustee knows to be so owned shall be so disregarded. Any notice, request, demand, authorization, direction, consent, waiver or other action by the owner of any Bond shall bind every future owner of the same Bond and the owner of every Bond issued upon the transfer thereof or in exchange therefor or in lieu thereof, in respect of anything done or suffered to be done by the Trustee or the Issuer in reliance thereon, whether or not notation of such action is made upon such Bond. Section 1204. Further Assurances. The Issuer shall do, execute, acknowledge and deliver such Supplemental Indentures and such further acts, instruments, financing statements and assurances as the Trustee may reasonably require for accomplishing the purposes of this Indenture. Section 1205. Immunity of Officers, Employees and Members of Issuer. No recourse shall be had for the payment of the principal of or redemption 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 this Indenture against any past, present or future officer, director, member, employee or agent of the Issuer, or of any successor public corporation, either directly or through the Issuer or any successor public corporation, 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 officers, directors, members, employees or agents as such is hereby expressly waived and released as a condition of and consideration for the execution of this Indenture and the issuance of Bonds. Section 1206. Benefit of Indenture. This Indenture shall inure to the benefit of and shall be binding upon the Issuer, the Trustee and the Liquidity Provider and their respective successors and assigns, subject, however, to the limitations contained herein. With the exception of rights expressly conferred in this Indenture, nothing in this Indenture or in the Bonds, express or implied, shall give to any Person, other than the parties hereto and the Liquidity Provider and their successors and assigns hereunder, any separate trustee or co -trustee appointed under Section 910 and the owners of Outstanding Bonds, any benefit or any legal or equitable right, remedy or claim under this Indenture. 10-19680.08 79 Section 1207. Severability. If any provision in this Indenture or in the Bonds shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 1208. Execution in Counterparts. This Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Section 1209. Governing Law. This Indenture shall be governed by and construed in accordance with the laws of the State. 10-19680.08 E IN WITNESS WHEREOF, the Issuer and the Trustee have caused this Trust Indenture to be duly executed by their duly authorized officers, as of the day and year first above written. CITY OF FAYETTEVILLE, ARKANSAS By: Title: Mayor ATTEST: BANK OF OKLAHOMA, N.A., as Trustee By: - Title: } ATTEST: By: . Title: 10-19680.07 81 ,} IN WITNESS WHEREOF, the Issuer and the Trustee have caused this Trust Indenture to be duly executed by their duly authorized officers, as of the day and year first above written. CITY OF FAYETTEVILLE, ARKANSAS By: Title: Mayor ATTEST: By: Title: City Clerk BANK OF OKLAHOMA, N.A., as Trustee 1 1 - By: Title: V ce President and Trust Officer ATTEST: By: Title: Assistant Cashier 10-19680.06 81 EXHIBIT A } TO TRUST INDENTURE (FORM OF BONDS) Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York Corporation ("DTC"), to the Issuer 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 an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. UNITED STATES OF AMERICA STATE OF ARKANSAS Registered Registered No. R00-1 $10,000,000 CITY OF FAYETTEVILLE, ARKANSAS WATER AND SEWER SYSTEM SUBORDINATE REVENUE BOND SERIES 2000 Interest Rate Maturity Date Dated Date CUSIP Variable (as provided herein) November 1, 2006 November 1, 2000 312693EW0 Registered Owner: ** CEDE & CO. ** Principal Amount: TEN MILLION DOLLARS Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Indenture described herein. 10-19680.08 A-1 THE CITY OF FAYETTEVILLE, ARKANSAS (the "Issuer"), a public instrumentality under the laws of the State of Arkansas (the "State"), for value received, promises to pay, but solely from the sources herein specified to the registered owner named above, or registered assigns, the principal amount stated above on the maturity date stated above, except as the provisions herein set forth with respect to redemption or tender prior to maturity may become applicable hereto, and in like manner to pay interest on said principal amount at the interest rate per annum determined as herein provided, initially at a Weekly Rate, from the date of delivery of the Bonds or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable on each Interest Payment Date as herein described, until said principal amount is paid. Method and Place of Payment. The principal of, premium, if any, and interest on this Bond shall be payable in any coin or currency of the United States of America which on the respective dates of payment thereof is legal tender for the payment of public and private debts. The principal of and redemption premium, if any, on this Bond shall be payable by check or draft to the registered owner at the maturity or redemption date upon presentation and surrender of this Bond at the principal corporate trust office or other designated payment office of Bank of Oklahoma, N.A., in Tulsa, Oklahoma (the "Trustee"). The interest payable on this Bond on any Interest Payment Date shall be paid by the Trustee to the registered owner of this Bond appearing on the bond register maintained by the Trustee at the close of business on the Record Date for such interest, and shall be paid by (1) check or draft mailed to such registered owner at his address as it appears on such bond register or at such other address furnished in writing by such registered owner to the Trustee, or (2) with respect to Bonds accruing interest at Weekly Rates or Commercial Paper Rates, and with respect to Bonds accruing interest at the Fixed Rate if such Bonds are held by a Securities Depository, or at the written request addressed to the Trustee by any registered owner of Bonds in the aggregate principal amount of at least $1,000,000, by electronic wire transfer in immediately available funds to a bank in the continental United States for credit to the ABA routing number and account number filed with the Trustee no later than 5 Business Days before the applicable Record Date. Interest accrued during any Commercial Paper Rate Period shall be paid only upon presentation and surrender of Bonds. Authorization of Bonds. This Bond is one of a duly authorized series of bonds of the Issuer designated "Water and Sewer System Subordinate Revenue Bonds, Series 2000," in the aggregate principal amount of $10,000,000 (the "Bonds"), issued pursuant to the authority of and in full compliance with the applicable laws of the State, including particularly the Act, and pursuant to proceedings duly had by the Issuer. The Bonds are issued under and are equally and ratably secured and entitled to the protection given by a Trust Indenture dated as of November 1, 2000 (said Trust Indenture, as amended and supplemented from time to time in accordance with the provisions thereof, herein called the "Indenture"), between the Issuer and the Trustee, for the purpose of providing funds for the purposes described in the Indenture. Under the Indenture, the Issuer has pledged and assigned to the Trustee, as security for the Bonds, the net revenues of the Issuer's combined water and sewer system (the "Net Revenues"). Such pledge and assignment of Net Revenues is junior and subordinate to a prior pledge and assignment of said Net Revenues securing the Issuer's Water and Sewer System Revenue Bonds, Series 1994 (the "1994 Bonds"), the Issuer's Water and Sewer System Revenue Refunding Bonds, Series 1999 (the "1999 Bonds"), and any additional indebtedness subsequently issued and secured by the Issuer on a parity with the 1994 Bonds and/or the 1999 Bonds. In addition to the pledge of Net Revenues, 10-19680. 08 A-2 the Bonds are secured by a statutory second mortgage lien on the water transmission and distribution portion of the City's combined water and sewer system, as prescribed in the Act, and by a debt service reserve. Pursuant to the ordinances of the Issuer authorizing the 1994 Bonds and the 1999 Bonds, additional indebtedness may be issued by the Issuer secured on a parity basis with the 1994 Bonds and the 1999 Bonds, and secured on a prior and senior basis to the Bonds. The Indenture permits the Issuer to issue subordinated indebtedness payable from Net Revenues subordinate to the lien and pledge securing the Bonds. Reference is hereby made to the Indenture, which may be inspected at the principal corporate trust office of the Trustee, for a description of the property pledged and assigned thereunder, and the provisions, among others, with respect to the nature and extent of the security for the Bonds, and the rights, duties and obligations of the Issuer, the Trustee and the registered owners of the Bonds, and a description of the terms upon which the Bonds are issued and secured, upon which provision for payment of the Bonds or portions thereof and defeasance of the lien of the Indenture with respect thereto may be made and upon which the Indenture may be deemed satisfied and discharged prior to payment of the Bonds. Interest Rate Provisions. The Bonds shall bear interest at Weekly Rates, Commercial Paper Rates or the Fixed Rate, determined as provided in the Indenture, from their date of delivery or from the most recent Interest Payment Date to which interest has been paid or duly provided for; provided, that in no event will the interest rate on any Bonds exceed the Maximum Rate. The Bonds may operate at any time in any one type of rate period, provided that all Bonds shall operate in the same type of rate period at any given time. All Bonds shall accrue interest at a Weekly Rate on the date of` original issuance and thereafter unless and until the rate period for j the Bonds is converted to a different rate period pursuant to the Indenture. Interest shall be payable in arrears on each Interest Payment Date, commencing January 1, 2001. The amount of interest payable with respect to any Bonds on any Interest Payment Date shall be computed (1) during Weekly Rate Periods or Commercial Paper Rate Periods, on the basis of a 365- or 366 -day year for the number of days actually elapsed, based on the calendar year in which the Weekly Rate Period or Commercial Paper Rate Period commences, and (2) during the Fixed Rate Period, on the basis of a 360 -day year of 12 30 -day months. The interest rate for each rate period shall be determined by the Remarketing Agent in accordance with the provisions of the Indenture as the lowest rate of interest which, in the judgment of the Remarketing Agent, would cause the Bonds to have a market value as of the date of determination equal to the principal amount thereof, plus accrued interest, taking into account prevailing market conditions. With respect to Commercial Paper Rates, the Remarketing Agent shall determine the Commercial Paper Rate and the Commercial Paper Rate Period for each Bond at such rate and for such period as it deems advisable in order to minimize the net interest cost on the Bonds, taking into account prevailing market conditions. Each interest rate in effect for Bonds shall be available to owners from the Remarketing Agent or the Trustee at their principal offices on the date such interest rate is determined. Redemption of Bonds Prior to Maturity. The Bonds are subject to redemption prior to their stated maturity, in accordance with the terms and provisions of the Indenture, as follows: 10-19680. 08 A-3 Optional Redemption. Bonds that bear interest at Weekly Rates or Commercial Paper Rates are subject to redemption and payment prior to maturity, upon the written direction of the Issuer, in whole or in part, in authorized denominations, on any Interest Payment Date, at a redemption price equal to 100% of the principal amount redeemed, plus interest accrued to the redemption date. Bonds that bear interest at the Fixed Rate are not subject to optional redemption and payment prior to maturity. Extraordinary Optional Redemption. Bonds that bear interest at the Fixed Rate are subject to redemption and payment prior to the stated maturity thereof, upon written direction from the Issuer, in whole or in part on any Business Day, at a redemption price equal to 100% of the principal amount thereof, plus accrued interest thereon to the redemption date, without premium, if as a result of any changes in the Constitution of the State or the Constitution of the United States of America or of legislative or administrative action (whether state or federal) or by final direction, judgment or order of any court or administrative body (whether state or federal) entered after the contest thereof by the Issuer in good faith, the Indenture becomes void or unenforceable or impossible of performance in accordance with the intent and purpose of the parties as expressed therein. Mandatory Redemption of Liquidity Provider Bonds Upon Demand by Liquidity Provider. Liquidity Provider Bonds are subject to mandatory redemption at a redemption price equal to 100% of the principal amount thereof, plus accrued interest to the redemption date, in whole or in part, without premium, on any Business Day, upon receipt by the Trustee of written notice from the Liquidity Provider requesting such redemption and specifying the principal amount of the Liquidity Provider Bonds to be redeemed. Mandatory Redemption on Determination of Taxability. The Bonds are subject to mandatory redemption and payment prior to the stated maturity thereof in whole (or in part as described in the Indenture) at a redemption price equal to 100% of the principal amount thereof, on any day within 120 days after the occurrence of a Determination of Taxability (as defined in the Indenture). Purchase in Lieu of Redemption. When Bonds are subject to redemption pursuant to the provisions of the preceding paragraphs captioned "Mandatory Redemption of Liquidity Provider Bonds Upon Demand by Liquidity Provider" and "Mandatory Redemption on Determination of Taxability," Bonds paid by the Issuer shall be purchased in lieu of redemption on the applicable redemption date at a purchase price equal to the principal amount thereof, plus accrued interest thereon to but not including the date of such purchase, if the Trustee has received a written request on or before said purchase date from the Issuer, specifying that the moneys provided or to be provided by the Issuer shall be used to purchase Bonds in lieu of redemption. Notice of Redemption. Unless waived by any owner of Bonds to be redeemed, official notice of any such redemption shall be given by the Trustee on behalf of the Issuer by mailing a copy of an official redemption notice by first class mail, at least 30 days prior to the redemption date, to each registered owner of the Bonds to be redeemed at the address shown on the bond register or at such other address as is furnished in writing by such registered owner to the 10-19680. 08 A-4 • 0 Trustee. The failure of any owner of Bonds to receive notice given as provided in this Section, or any defect therein, shall not affect the validity of any proceedings for the redemption of any Bonds. Any notice mailed as provided in the Indenture shall be conclusively presumed to have been duly given and shall become effective upon mailing, whether or not any owner receives such notice. So long as the Securities Depository is effecting book -entry transfers of the Bonds, the Trustee shall provide the notices specified herein to the Securities Depository. It is expected that the Securities Depository shall, in turn, notify its Participants and that the Participants, in turn, will notify or cause to be notified the beneficial owners. Any failure on the part of the Securities Depository or a Participant, or failure on the part of a nominee of a beneficial owner of a Bond (having been mailed notice from the Trustee, the Securities Depository, a Participant or otherwise) to notify the beneficial owner of the Bond so affected, shall not affect the validity of the redemption of such Bond. Optional Tenders for Purchase. Bonds (except Liquidity Provider Bonds and Issuer Bonds) may be tendered for purchase, at the option of the owners thereof, at a purchase price equal to 100% of the principal amount of such Bonds (or portions in authorized denominations) plus accrued interest, if any, to the purchase date, as follows: (a) Optional Purchase Dates. The owners of Bonds (or the beneficial owners of Bonds held in a Book -Entry System through its direct Participant) accruing interest at Weekly Rates may elect to have their Bonds or beneficial interests (or portions thereof in minimum authorized denominations) purchased on any Business Day upon Electronic Notice of tender given to the Trustee not later than 3:00 p.m., Arkansas time, on a Business Day at least 7 days prior to the purchase date. (b) Bondowner Notice of Optional Tender. Each notice of tender: (1) shall be delivered by the bondowner (or the beneficial owner through its Participant in the Securities Depository) to the Trustee and the Remarketing Agent at their notice address (as provided in the Indenture) and be in form satisfactory to the Trustee; (2) shall state (A) the principal amount of Bonds or beneficial interest (or portion thereof in authorized denominations) to be tendered, (B) that the owner irrevocably demands purchase of such Bond or beneficial interest (or portion thereof in authorized denominations) to be tendered (or a specified portion thereof), (C) the date on which such Bond or beneficial interest (or portion thereof in authorized denominations) to be tendered (or portion thereof) is to be purchased, and (D) the identity of the Participant through which the beneficial owner maintains its interest and payment instructions with respect to the purchase price; and (3) shall automatically constitute (A) an irrevocable offer to sell the Bonds (or portion thereof) to which the notice relates on the purchase date at the 10-19680. 08 A-5 purchase price, (B) an irrevocable authorization and instruction to the Trustee to effect transfer of such Bond (or portion thereof) upon payment of the purchase price to the Trustee on the purchase date, (C) an agreement of such owner (or beneficial owner through its participation in the Securities Depository) to make arrangements to deliver and transfer such Bond or beneficial interest being tendered, with all necessary endorsements for transfer and signature guarantees, by delivery to the Trustee at its designated payment office not later than 11:00 a.m., Arkansas time, on the purchase date, or by causing its direct Participant to transfer its interest in the Bonds equal to such beneficial owner's interest on the records of the Securities Depository to the participant account of the Trustee or its agent with the Securities Depository, and (D) an acknowledgment that such owner will have no further rights with respect to such Bond (or portion thereof) upon payment of the purchase price thereof to the Trustee on the purchase date, except for the right of such owner to receive such purchase price upon delivery of such Bond to the Trustee, and that after the purchase date such owner will hold any undelivered bond certificate as agent for the Trustee. The determination of the Trustee as to whether a notice of tender has been properly delivered pursuant to the foregoing shall be conclusive and binding upon the owner. (c) Notice by Trustee. Not later than 4:00 p.m., Arkansas time, on the 151 Business Day following the date of receipt of any notice of tender, the Trustee shall notify, by Electronic Notice, the Remarketing Agent and the Issuer of receipt of such tender notice, the principal amount of Bonds or beneficial interest (or portions thereof) to be purchased and the purchase date. Mandatory Tenders for Purchase. Bonds bearing interest at Weekly Rates and Commercial Paper Rates are subject to mandatory tender for purchase at a purchase price equal to 100% of the principal amount of such Bonds, plus accrued interest, if any, to the purchase date, as follows: (a) Mandatory Tender of Commercial Paper Rate Bonds. Bonds accruing interest at a Commercial Paper Rate are subject to mandatory tender for purchase on each Interest Payment Date applicable to such Bond. (b) Mandatory Tender Upon Conversions between Rate Periods. Bonds to be converted from one type of rate period to a different type of rate period are subject to mandatory tender for purchase on the Conversion Date. (c) Mandatory Tender Upon Expiration or Termination of the Liquidity Facility. The Bonds will be subject to mandatory tender for purchase on the 51 Business Day prior to the expiration or termination of the Liquidity Facility if the Trustee has not received evidence satisfactory to it by the 301° day preceding the scheduled expiration or termination date of either an extension of the then existing Liquidity 10-19680. 08 A-6 Facility or the issuance of an Alternate Liquidity Facility meeting the requirements set forth in the Indenture; provided, however, that no mandatory tender for purchase will occur as a result of an event of default under the Liquidity Facility if such event of default results in the immediate suspension or termination of the obligation of the Liquidity Provider to purchase bonds under the Liquidity Facility. (d) Mandatory Tender Upon Reduction of Credit Rating. The Bonds will be subject to mandatory tender for purchase if the Trustee has received evidence that the rating on the Bonds will be reduced or withdrawn. (e) Notice by Trustee of Mandatory Tender. At any time the Bonds are subject to mandatory tender as provided above, the Trustee shall give notice of such mandatory tender for purchase (other than mandatory tenders on an Interest Payment Date during a Commercial Paper Rate Period) to the affected owners of Bonds, the Issuer, the Liquidity Provider, the Remarketing Agent, principal bond depositories, information services and each Rating Agency maintaining a rating on the Bonds, not less than 10 days before the mandatory tender date. If the Bonds are in certificated form, such notice shall include information with respect to required delivery of bond certificates and payment of the purchase price. The notice will state (1) the purchase date, (2) the purchase price, (3) if a Book -Entry System is not in effect, that the Bonds subject to mandatory tender must be surrendered to collect the purchase price, (4) if a Book -Entry System is not in } effect, the address at which the Bonds must be surrendered, and (5) that interest on the Bonds purchased ceases to accrue on the purchase date. In addition, if a Liquidity Facility is expiring, the notice will state the expiration date. Failure to give any required notice of mandatory tender as to any particular Bonds will not affect the validity of the purchase of any Bonds in respect of which no such failure has occurred. Any notice mailed as provided in this Indenture will be conclusively presumed to have been given whether or not actually received by any bondowner. The owner of any Bond accruing interest at a Commercial Paper Rate shall provide the Trustee with written payment instructions for the purchase price on or before tender thereof to the Trustee. Book -Entry System. The Bonds are being issued by means of a book -entry system with no physical distribution of bond certificates to be made except as provided in the Indenture. One Bond certificate with respect to each date on which the Bonds are stated to mature or with respect to each form of Bonds, registered in the nominee name of the Securities Depository, is being issued and required to be deposited with the Securities Depository and immobilized in its custody. The book -entry system will evidence positions held in the Bonds by the Securities Depository's participants, beneficial ownership of the Bonds in authorized denominations being evidenced in the records of such participants. Transfers of ownership 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. The Issuer and the Trustee will recognize the Securities Depository nominee, while the registered owner of this Bond, as the 10-19680. 08 A-7 owner of this Bond for all purposes, including (i) payments of principal of, and redemption premium, if any, and interest on, this Bond, (ii) notices and (iii) voting. Transfer of principal, interest and any redemption premium payments to participants of the Securities Depository, and transfer of principal, interest and any redemption premium payments to beneficial owners of the Bonds by participants of the Securities Depository will be the responsibility of such participants and other nominees of such beneficial owners. The Issuer and the Trustee will not be responsible or liable for such transfers of payments or for maintaining, supervising or reviewing the records maintained by the Securities Depository, the Securities Depository nominee, its participants or persons acting through such participants. While the Securities Depository nominee is the owner of this Bond, notwithstanding the provisions hereinabove contained, payments of principal of, redemption premium, if any, and interest on this Bond shall be made in accordance with existing arrangements among the Issuer, the Trustee and the Securities Depository. Transfer and Exchange. EXCEPT AS OTHERWISE PROVIDED IN THE INDENTURE, THIS GLOBAL BOND MAY BE TRANSFERRED, IN WHOLE BUT NOT IN PART, ONLY TO ANOTHER NOMINEE OF THE SECURITIES DEPOSITORY OR TO A SUCCESSOR SECURITIES DEPOSITORY OR TO A NOMINEE OF A SUCCESSOR SECURITIES DEPOSITORY. This Bond may be transferred or exchanged, as provided in the Indenture, only upon the bond register maintained by the Trustee at the above - mentioned office of the Trustee by the registered owner hereof in person or by his duly authorized attorney, upon surrender of this Bond together with a written instrument of transfer satisfactory to the Trustee duly executed by the registered owner or his duly authorized attorney, and thereupon anew Bond or Bonds of the same aggregate principal amount, shall be issued to } the transferee in exchange therefor as provided in the Indenture, and upon payment of the charges therein prescribed. Except as otherwise specifically provided herein and in the Indenture with respect to rights of Participants and Beneficial Owners when a Book -Entry System is in effect, the Issuer and the Trustee may deem and treat the person in whose name this Bond is registered on the bond register as the absolute owner hereof for the purpose of receiving payment of, or on account of, the principal or redemption price hereof and interest due hereon and for all other purposes. The Bonds, when bearing interest at a Weekly Rate, shall be in the denomination of $100,000 or any integral multiple of $100,000 in excess thereof, when bearing interest at a Commercial Paper Rate, shall be in denominations of $100,000 or any integral multiple of $1,000 in excess thereof, and, when bearing interest at a Fixed Rate, shall be in the denomination of $5,000 or any integral multiple thereof. Limitation on Rights. The registered owner 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 issued under the Indenture and then outstanding may become or may be declared due and payable before the stated maturity thereof, together with interest accrued thereon. The Bonds or the Indenture may be modified, amended or supplemented only to the extent and in the circumstances permitted by the Indenture. Limited Obligations. The Bonds and the interest thereon are special, limited obligations of the Issuer payable solely from and secured solely by Net Revenues and from amounts drawn 10-19680. 08 A-8 F _ under the Standby Bond Purchase Agreement (the "Liquidity Facility") among the Issuer, the Trustee and Bank of America, N.A. (the "Liquidity Provider") to pay Bonds tendered for purchase and are secured by a pledge and assignment of and a grant of a security interest in the Trust Estate. The Bonds and interest thereon shall not be deemed to constitute a debt or liability of the State or the Issuer or of any political subdivision thereof within the meaning of any state constitutional provision or statutory limitation and shall not constitute a pledge of the full faith and credit of the State or the Issuer or of any political subdivision thereof, but shall be payable solely from the funds provided for in the Indenture. The issuance of the Bonds shall not, directly, indirectly or contingently, obligate the State or the Issuer or any political subdivision thereof to levy any form of taxation therefor or to make any appropriation for their payment. The State shall not in any event be liable for the payment of the principal of, premium, if any, or interest on the Bonds or for the performance of any pledge, mortgage, obligation or agreement of any kind whatsoever which may be undertaken by the Issuer. No breach by the Issuer of any such pledge, mortgage, obligation or agreement may impose any liability, pecuniary or otherwise, upon the State or any charge upon its general credit or its taxing power. Authentication. 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 executed by the Trustee. THE ISSUER HAS DESIGNATED THIS BOND AS A "QUALIFIED TAX EXEMPT OBLIGATION" WITHIN THE MEANING OF SECTION 265(b)(3) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. ( :) This Bond is declared to be a negotiable instrument within the meaning of the negotiable instruments law of the State under the provisions of Title 14, Chapter 164, Subchapter 4, and is issued with the intent that the laws of the State will govern its construction. No covenant or agreement contained in this Bond or in the Indenture shall be deemed to be a covenant or agreement of any past, present or future alderman, director, officer or employee of the Issuer in his individual capacity, and no officer executing this Bond shall be liable personally on this Bond or be subject to any personal liability or accountability by reason of the issuance of this Bond. IT IS HEREBY CERTIFIED AND DECLARED that all acts, conditions and things required to exist, happen and be performed precedent to and in the execution and delivery of the Indenture and the issuance of this Bond do exist, have happened and have been performed in due time, form and manner as required by law. 10-19680. 08 A-9 I IN WITNESS WHEREOF, the CITY OF FAYETTEVILLE, ARKANSAS has caused this Bond to be executed in its name by the manual or facsimile signature of its Mayor and attested by the manual or facsimile signature of its City Clerk and its seal to be affixed or imprinted hereon, all as of the Dated Date specified above. CERTIFICATE OF AUTHENTICATION CITY OF FAYETTEVILLE, ARKANSAS This Bond is one of the Bonds described in the within mentioned Indenture. Date of Authentication: November, 2000 BANK OF OKLAHOMA, N.A., Trustee By: Title: Authorized Signature By: Title: Mayor [SEAL] ATTEST: By: Title: City Clerk 10-19680. 08 A-10 ASSIGNMENT 1' FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto (Please Print or Typewrite Name, Address and Social Security Number or Taxpayer Identification Number of Transferee) the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints Attorney to transfer the within Bond on the books kept for registration thereof, with full power of substitution in the premises. Dated: NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Bond in every particular, without alteration or enlargement --_ ) or any change whatever. Signature Guaranteed By: I (Name of Eligible Guarantor Institution as defined by SEC Rule 17 Ad -15 (17 CFR 240.17 Ad -15)) By: Title: 10-19680. 08 A-1 I LEGAL OPINION The following is a true and correct copy of the legal opinion of Bond Counsel on the within Bond and the series of which said Bond is a part, which opinion was manually executed and was dated and issued as of the date of delivery of and payment for such Bonds. (Opinion of Bond Counsel) November 29, 2000 City of Fayetteville, Arkansas Fayetteville, Arkansas Bank of Oklahoma, N.A., as Trustee Tulsa, Oklahoma Banc of America Securities LLC Houston, Texas $10,000,000 City of Fayetteville, Arkansas Water and Sewer System Subordinate Revenue Bonds Series 2000 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 $10,000,000 Water and Sewer System Subordinate Revenue Bonds, Series 2000 (the "Bonds"). The Bonds are being issued pursuant to the provisions of the Constitution and laws of the State of Arkansas, including particularly Arkansas Code Annotated §§ 14-234-201 et seq.; Arkansas Code Annotated §§ 14-235-201 et seq.; Arkansas Code Annotated §§ 14-164-401 et seq.; Arkansas Code Annotated §§ 19-9-601 et seq. (collectively, the "Authorizing Legislation"), pursuant to Ordinance No. 4276 adopted by the City Council of the City on October 17, 2000, and pursuant to a Trust Indenture (the "Indenture") dated as of November 1, 2000, between the City and Bank of Oklahoma, N.A., as trustee (the "Trustee). Reference is hereby made to the Indenture and to all amendments or supplements thereto for the provisions, among others, with respect to the nature and extent of the security for the Bonds, the conditions for the issuance of parity debt by the City, 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. The proceeds of the Bonds will be used to finance and reimburse the costs of wastewater treatment facilities of the City (the "Project'), to fund a debt service reserve and to pay the costs of issuance of the Bonds. 10-19680.08 A-12 The Bonds are subject to optional and mandatory redemption and tender prior to maturity at the times, in the manner and upon the terms provided in the Bonds and in the Indenture. The City has covenanted in the Indenture and in a Tax Compliance Agreement dated as of November I, 2000 (the "Tax Compliance Agreement"), to comply with all necessary restrictions of the Internal Revenue Code of 1986, as amended (the "Code"), to preserve the tax exemption of interest on the Bonds. Noncompliance by the City with such restrictions may cause the interest on the Bonds to be subject to federal income taxation retroactive to their date of issue. Reference is made to an opinion of even date herewith of Jerry E. Rose, 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 Ordinance No. 4276, the valid execution and delivery of the Indenture, 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 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 that: I. The City is a duly organized and validly existing political subdivision under the laws of the State of Arkansas. Pursuant to the Constitution and laws of the State of Arkansas, j including particularly the Authorizing Legislation, the City is empowered to adopt Ordinance No. 4276, to execute and deliver the Indenture, to perform the agreements on its part contained therein, and to issue the Bonds. 2. The Indenture has been duly executed and delivered by the City and constitutes a valid and binding obligation of the City enforceable upon the City in accordance with its terms. 3. The Bonds have been validly authorized, executed, issued and delivered by the City and represent valid and binding special obligations of the City. The principal, premium, if any, and interest on the Bonds shall be payable from, and shall be secured by an assignment and pledge by the City to the Trustee of, the Net Revenues (as defined in the Indenture) of the City's water and sewer system, subject to the prior pledge of Net Revenues securing the City's Water and Sewer System Revenue Bonds, Series 1994, the City's Water and Sewer System Refunding Revenue Bonds, Series 1999, and any Prior Indebtedness (as defined in the Indenture) issued hereafter. 4. The Net Revenues have been duly and validly assigned and pledged to the Trustee under the Indenture and the Indenture creates, as security for the Bonds, a valid security interest in the Net Revenues. 5. Assuming compliance by the City with the covenants referred to in the fifth paragraph of this letter, under laws, regulations, rulings and judicial decisions existing as of the date hereof, 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 10-19680.08 A-13 tax purposes), such interest is taken into account in determining adjusted current earnings for purposes of such alternative minimum tax. 6. Under laws, rules, regulations and judicial decisions existing as of the date hereof, the Bonds are "qualified tax-exempt obligations" within the meaning of Section 265(b)(3) of the Code, and, in the case of certain financial institutions (within the meaning of Section 265(b)(5) of the Code), a deduction is allowed for 80 percent of that portion of such financial institution's interest expense allocable to interest on the Bonds. We express no opinion regarding other federal tax consequences arising with respect to the Bonds. 7. Under laws, rules, regulations and judicial decisions existing as of the date hereof, interest on he Bonds is exempt from all present Arkansas state, county and municipal taxation. 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. The obligations of the parties, and the enforceability thereof, with respect to the documents and other items described above are subject, in part, to the provisions of the bankruptcy laws of the United State of America and to other applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally, now or hereafter in effect. Certain of the obligations, and the enforcement thereof, contained in the Indenture are also subject to general equity principles, which. may limit the specific enforcement of certain remedies but which do not affect the validity of such item. t Very truly yours, 10-19680. 08 A-14 r -I EXHIBIT B TO TRUST INDENTURE Request No: Date: DISBURSEMENT REQUEST (§ 503 - COSTS OF ISSUANCE) To: Bank of Oklahoma, N.A. Corporate Trust Department Tulsa, Oklahoma as Trustee Re: $10,000,000 City of Fayetteville, Arkansas, Water and Sewer System Subordinate Revenue Bonds, Series 2000 You are hereby requested and directed as Trustee under the Trust Indenture dated as of November 1, 2000 (the "Indenture"), between the City of Fayetteville, Arkansas and you, as Trustee, to pay from moneys in the Costs of Issuance Account, pursuant to Section 503 of the } Indenture, to the following payees the following amounts for the following Costs of Issuance (as defined in the Indenture): Payee Amount Description of Costs of Issuance The undersigned Issuer Representative hereby states and certifies that each item listed above is a proper Cost of Issuance (as defined in the Indenture) that was incurred in connection with the issuance of the above -referenced Bonds, and the amount of this request is justly due and owing and has not been the subject of another requisition which was paid. CITY OF FAYETTEVILLE, ARKANSAS By: . Title: 10-19680.08 EXHIBIT C TO TRUST INDENTURE Request No: Date: DISBURSEMENT REQUEST (§ 503 - COSTS OF THE PROJECT) To: Bank of Oklahoma, N.A. Corporate Trust Department Tulsa, Oklahoma, as Trustee Re: $10,000,000 City of Fayetteville, Arkansas, Water and Sewer System Subordinate Revenue Bonds, Series 2000 You are hereby requested and directed as Trustee under the Trust Indenture dated as of ( November I, 2000 (the "Indenture"), between the City of Fayetteville, Arkansas and you, as Trustee, to pay from moneys in the Project Account, , pursuant to Section 503 of the Indenture, to the following payees the following amounts in payment or reimbursement for the following Costs of the Project: Payee Amount Description of Costs of the Project The undersigned Issuer Representative hereby states and certifies that: Each item listed above is a valid cost authorized under the Act and is a proper Cost of the Project (as defined in the Indenture) that was incurred in the acquisition, construction, expansion, completion or equipping of portions of the Project in accordance with the construction contracts and plans and specifications therefor. These Costs of the Project have been incurred by the Issuer and are presently due and payable or have been paid by the Issuer and are reasonable costs that are 10-19680.08 C -I payable or reimbursable under the Indenture and each item thereof is a proper { charge against the Project Account. 3. Each item listed above has not previously been paid or reimbursed from moneys in the Project Account and no part thereof has been included in any other Disbursement Request previously filed with the Trustee under the provisions of the Indenture or reimbursed to the Issuer from Bond proceeds. 4. No event of default under the Indenture or event which after notice or lapse of time or both would constitute an Event of Default under the Indenture has occurred and not been waived or cured. 5. An invoice or other appropriate evidence of the obligation described herein is available for inspection upon request. CITY OF FAYETTEVILLE, ARKANSAS By: _ Title: 10-19680.08 C-2