BRYAN CAVE LLP OCTOBER 15, 2014 relating to $6,030,000 CITY OF OVERLAND PARK, KANSAS SPECIAL ASSESSMENT BONDS, SERIES 2014 (CITY PLACE COMMUNITY IMPROVEMENT DISTRICT PROJECT) October 20, 2014 City of Overland Park, Kansas 8500 Santa Fe Drive Overland Park, Kansas 66212 Attention: City Manager College 69 Associates, LLC c/o Block Real Estate Services, LLC 700 West 47 th Street, Suite 200 Kansas City, Missouri 64112 Attention: Ken Block Ladies and Gentlemen: On behalf of the representations, warranties and covenants and upon the terms and conditions contained in this Private Placement Agreement (this Private Placement Agreement or this Agreement ), the undersigned, UMB Bank, N.A. (the Placement Agent ), hereby agrees to privately place for the City of Overland Park, Kansas (the City ) its $6,030,000 aggregate principal amount of Special Assessment Bonds, Series 2014 (City Place Community Improvement District Project) (the Bonds ) with the original purchasers set forth on Exhibit A to this Agreement. The Bonds are being issued by the City pursuant to the Act (as defined in the hereinafter defined Indenture) and a Trust Indenture, dated as the date of issuance of the Bonds (the Indenture ), between the City and Security Bank of Kansas City, as bond trustee (the Bond Trustee or the Trustee ). The City is issuing the Bonds pursuant to the term of (i) the Ordinance (as defined herein), (ii) the Indenture and (iii) the Development Agreement dated March 7, 2014 (as amended and supplemented, the Development Agreement ), between the City and College 69 Associates, LLC, a Kansas limited liability company (the Developer ). The City will use the proceeds of the Bonds for the purposes set forth in the Indenture, which shall include providing funds to (i) pay the CID Improvements (as defined in the Indenture), (ii) fund capitalized interest for the Bonds, (iii) make a deposit to a debt service reserve fund for the Bonds and (iv) pay the costs of issuance of the Bonds and certain administrative expenses of the City, all as more fully described in the Indenture. This offer is made subject to acceptance of this Agreement by the City and the Developer on or before 10:00 a.m. (central time) on October 21, 2014. Terms not otherwise defined in this Agreement shall have the meaning ascribed thereto in the Indenture. KC01 1165964 CITY OF OVERLAND PARK / CITY PLACE (2014)
1. Introductory. We understand that the City proposes to issue and sell the Bonds pursuant to an ordinance adopted by the governing body of the City on October 20, 2014 (the Ordinance ) and the Indenture. The Bonds and the interest thereon will be special, limited obligations of the City payable solely and only from the CID Special Assessment Revenues and other amounts pledged therefor pursuant to the Indenture. The Bonds and the interest thereon shall not constitute a debt of the State of Kansas (the State ) or any political subdivision thereof. The issuance of the Bonds does not, directly, indirectly or contingently, obligate the City, the State or any political subdivision thereof to levy any form of general taxation therefor or to make any appropriation for their payment. Neither the City, the State, any political subdivision thereof, nor any of their respective directors, officers, employees or agents or any person executing the Bonds shall be liable for the such obligations except to the extent set forth in the Indenture. The Bonds shall not constitute an indebtedness within the meaning of any constitutional, or statutory debt limitation or restriction and are not payable in any manner by taxation. The City and the Developer each acknowledge and agree with respect solely to itself that (i) this Agreement is an arm s-length commercial transaction, (ii) in connection with such transaction, the Placement Agent is acting solely as an agent for the City and not as an advisor (including, without limitation, a Municipal Advisor (as such term is defined in Section 975(e) of the Dodd-Frank Wall Street Reform and Consumer Protection Act)), principal or a fiduciary of the City or the Developer, (iii) the Placement Agent has not assumed a fiduciary responsibility in favor of the City or the Developer with respect to the placement of the Bonds or the process leading thereto (whether or not the Placement Agent or any affiliate thereof has advised or is currently advising the City on other matters) or any other obligation to the City or the Developer except the obligations expressly set forth in this Agreement, (iv) the City and the Developer have each consulted with their own legal and financial advisors to the extent it deemed appropriate in connection with the placement of the Bonds and (v) the Placement Agent is acting solely as a placement agent with respect to the Bonds and is not serving as an underwriter in connection with the transactions described herein. 2. Purchase, Sale and Delivery of the Bonds. On the basis of the representations, warranties and covenants contained herein and in the other agreements referred to herein, and subject to the terms and conditions herein set forth, at the Closing Date the Placement Agent agrees to privately place for the City and the City agrees to sell to the Placement Agent of the Bonds at a purchase price of $6,030,000.00. The Placement Agent initially agrees to privately place the Bonds at the prices set forth in the Private Placement Memorandum. The Placement Agent will be paid from the proceeds of the Bonds a placement fee for its services under this Agreement in the amount of $ (the Placement Fee ). The Bonds shall have the maturities and interest rates and be subject to redemption as set forth in the Indenture and on Schedule I hereto. Payment for the Bonds shall be made by federal wire transfer in immediately available federal funds payable to the order of the Bond Trustee for the account of the City (the Closing ), at the offices of Kutak Rock LLP, Kansas City, Missouri ( Bond Counsel ), at 10:00 a.m. (local time), on November, 2014, or such other place, time or date as shall be mutually agreed upon by the City, the Developer and the Placement Agent. The date of such delivery and payment is herein called the Closing Date. The delivery of the Bonds shall be made in definitive form, as fully registered bonds (in such denominations as the Placement Agent shall specify in writing no later than the day immediately preceding the Closing Date); provided, however, that the Bonds may be delivered in temporary form. 3. Transaction Documents. On or prior to the Closing Date, the Placement Agent shall have received the following documents in form and substance satisfactory to the Placement Agent and its counsel: (a) Bond Counsel Opinion. The approving opinion of Bond Counsel, dated the Closing Date, addressed to the City, the Trustee and the Placement Agent relating to the due KC01 1165964-2- CITY OF OVERLAND PARK / CITY PLACE (2014)
authorization, execution and delivery of the Bonds, the tax-exempt status of the interest on the Bonds for federal or Kansas income tax purposes, and certain other matters, all in form and substance acceptable to the Placement Agent and the City. (b) Developer s Counsel Opinion. The opinion of Polsinelli PC, Overland Park, Kansas, counsel to the Developer, dated the Closing Date, addressed to the City, the Trustee and the Placement Agent, in form and substance reasonably acceptable to such parties and their counsel and to Bond Counsel. (c) Developer s Certificate. A certificate of the Developer dated the date of the Closing, signed by an authorized officer of each Developer, on behalf of the Developer, in form and substance reasonably satisfactory to the City, the Placement Agent, their respective counsel and to Bond Counsel. (d) Bonds. The Bonds. (e) Private Placement Memorandum. The Private Placement Memorandum executed and approved on behalf of the parties thereto by duly authorized officials thereof. (f) (g) parties thereto. Indenture. The Indenture, duly executed by the parties thereto. Tax Compliance Agreement. The Tax Compliance Agreement, duly executed by the (h) Developer Resolution(s). Resolution(s) of the Developer authorizing and approving, as appropriate, the execution and delivery of the Transaction Documents to which it is a party, together with a certificate dated the Closing Date to the effect that such resolution(s) have not been modified, amended or repealed. (i) Developer Documents. The Developer s Articles of Organization, certified by the Secretary of State of the State of Kansas as of a date within ten (10) days prior to the Closing Date, which certificate shall be further certified to by an authorized officer or member of the Developer as of the Closing Date, a copy of the Developer s Operating Agreement, certified by an authorized officer or member of the Developer as of the Closing Date and a good standing certificate for the Developer certified by the Secretary of State of the State of Kansas as of a date within ten (10) days prior to the Closing Date. (j) Certificates. Other certificates listed on a closing agenda to be approved by counsel to the City, Bond Counsel, counsel to the Developer and counsel to the Placement Agent, including any certificates or representations of the Developer required in order for Bond Counsel to deliver the opinion referred to in Section 3(a) of this Agreement. (k) Form 8038. A completed form 8038-G (Information Return for Tax-Exempt Governmental Obligations). (l) Placement Agent s Counsel Opinion. The opinion of Bryan Cave LLP, Kansas City, Missouri, counsel to the Placement Agent, dated the Closing Date, addressed to the Placement Agent and the City, in form and substance acceptable to Bond Counsel. (m) Other Closing Materials. Such additional legal opinions, certificates, proceedings, instruments and other documents as Bond Counsel or counsel for the Placement Agent, the Developer or the City may reasonably request to evidence compliance with all legal requirements, the KC01 1165964-3- CITY OF OVERLAND PARK / CITY PLACE (2014)
truth and accuracy, as of the Closing, of the representations herein and the due performance or satisfaction of all agreements then to be performed and all conditions then to be satisfied. The foregoing documents are hereinafter referred to as the Transaction Documents. The City and the Developer have each authorized the use of the Private Placement Memorandum in connection with the offer, sale and distribution of the Bonds. 4. Representations and Warranties of the City. The City hereby represents and warrants to the Placement Agent and to the Developer that: (a) Status. The City is and will be at Closing a political subdivision organized and existing under the laws of the State with the power and authority to issue the Bonds pursuant to the Act. (b) Authorization By Law. The City is authorized by the laws of the State of Kansas, including particularly the Act, (i) to issue, sell and deliver the Bonds for the purposes set forth in the opening paragraphs hereof, (ii) to enter into and perform its obligations under the Transaction Documents to which it is a party, and (iii) to pledge and assign to the Trustee the Trust Estate (as defined in the Indenture) in accordance with the provisions of the Indenture. (c) Power and Authority. The City has full power and authority to consummate the transactions to be performed by it under the Transaction Documents to which it is a party. (d) Private Placement Memorandum. The information contained in the Private Placement Memorandum with respect to the City under the captions THE CITY and LITIGATION - The City does not and, as of the Closing Date, will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make any statement made therein, in light of the circumstances under which it was made, not misleading. (e) Necessary Action. Prior to the Closing, the City shall have taken all necessary action to be taken by it for: (i) the issuance and sale of the Bonds upon the terms set forth herein; (ii) the approval, execution, delivery and receipt by the City of the Transaction Documents to which it is a party and any and all such other agreements and documents as may be required to be executed, delivered and received by the City in order to carry out, give effect to, and consummate the transactions contemplated hereby; (iii) the pledge and assignment of the Trust Estate to the Trustee; and (iv) making the proceeds of the Bonds available to the Developer in the amounts and subject to the terms of the Indenture and the Development Agreement. (f) Documents Binding. The Bonds when executed, issued, authenticated, delivered and paid for as herein and in the Indenture provided, and the Transaction Documents, to which the City is a party, when executed will have been duly authorized and issued and will constitute legal, valid and binding obligations of the City, enforceable in accordance with their respective terms (subject as to enforcement to any applicable bankruptcy, reorganization, insolvency, moratorium or other law or laws affecting the enforcement of creditors rights generally or against municipal corporations such as the City from time to time in effect and further subject to the availability of equitable remedies). (g) No Litigation. Except as described in the Private Placement Memorandum, there is no action, suit, proceeding, inquiry or investigation at law or in equity or before or by any court, public board or body pending or, to the knowledge of the City, threatened against the City wherein an unfavorable decision, ruling or finding would materially adversely affect the tax-exempt status of the interest on the Bonds for federal or Kansas income tax purposes (as described in the Private KC01 1165964-4- CITY OF OVERLAND PARK / CITY PLACE (2014)
Placement Memorandum), the existence or powers of the City, the transactions contemplated hereby or the validity or enforceability in accordance with their respective terms of this Agreement, the Indenture, the Tax Compliance Agreement, the Bonds or any agreement or instrument to which the City is a party used or contemplated for use in the consummation of the transactions contemplated hereby or by the Private Placement Memorandum. (h) No Conflict or Breach. The execution and delivery by the City of this Agreement, the Indenture, the Tax Compliance Agreement, the Bonds and the other documents contemplated hereby to be executed and delivered by the City, and compliance with the provisions thereof, and the pledge of the Trust Estate to the Trustee pursuant to the Indenture, do not conflict with or constitute on the part of the City a breach of or a default under any existing law, court or administrative regulation, decree, order, agreement, indenture, mortgage or lease by which the City is or may be bound. (i) Certificates. Any certificate signed by an authorized officer of the City and delivered to the Placement Agent shall be deemed a representation and warranty by the City to the Placement Agent as to the statements made therein. 5. Developer s Representations and Warranties. In order to induce the Placement Agent to enter into this Agreement and in order to induce the City to enter into the Transaction Documents to which it is a party, and to issue the Bonds, and in consideration of the foregoing and the execution and delivery of this Agreement, the Developer represents and warrants to and covenants on behalf of itself with the City and the Placement Agent as follows: (a) Status. The Developer is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Kansas. The Developer has all material licenses and permits necessary in order to carry on its business as currently conducted and has obtained all material licenses and permits required to be obtained as of the date hereof in connection with the facilities financed or refinanced with the proceeds of the Bonds. The Developer is not in violation of and has not received any notice of an alleged violation of or liability under any zoning, land use, environmental, pollution control, hazardous waste or similar laws or regulations that would have a material adverse effect on the operations or financial affairs of the Developer or the acquisition, construction and equipping of the CID Improvements. The Developer has full right, power and authority to authorize, approve, enter into, execute and deliver the Transaction Documents to which it is a party and to perform such other acts and things as are provided for in the Transaction Documents. (b) No Conflict or Breach. The execution, delivery, performance (where applicable) and approval by the Developer of the Transaction Documents to which it is a party, and full compliance with the provisions of such Transaction Documents, have been duly authorized by all necessary corporate action of the Developer and do not and will not conflict with or result in the breach of any of the terms, conditions or provisions of, or constitute a default under, the Developer s Articles of Organization or Operating Agreement, any law, court or administrative regulation, decree or order, or any agreement, indenture, mortgage, lease or instrument to which the Developer is a party or by which it is or may be bound. (c) Corporate Action. The Developer has duly authorized all necessary action to be taken by it for: (i) the issuance and sale of the Bonds by the City upon the terms and conditions set forth herein and to be set forth in the Private Placement Memorandum, and (ii) the execution, delivery and performance (where applicable) of the Transaction Documents to which it is a party and any and all such other agreements and documents as may be required to be executed, delivered and performed by the Developer in order to carry out, effectuate and consummate the transactions contemplated hereby and by such Transaction Documents. KC01 1165964-5- CITY OF OVERLAND PARK / CITY PLACE (2014)
(d) Private Placement Memorandum True and Correct. The description and information contained in the Private Placement Memorandum relating to: the Developer; the Developer s organization, operations, company structure, and affairs; application by the Developer of the proceeds to be received from the sale of the Bonds; the CID Improvements; and the Transaction Documents to which the Developer is a party and the Developer s participation in the transactions contemplated by the Transaction Documents are, and with respect to the Private Placement Memorandum, as of its date, true and correct and do not, and with respect to the Private Placement Memorandum, as of its date, contain any untrue statement of any material fact and do not, and with respect to the Private Placement Memorandum, as of its date, omit to state any material fact necessary to make any statement made therein, in light of the circumstances under which it was made, not misleading. (e) Tax Status of Bonds. The Developer will not take or omit to take any action which action or failure to act will in any way cause or result in the proceeds from the sale of the Bonds being applied in a manner other than as provided in the Transaction Documents and as described in the Private Placement Memorandum. (f) No Litigation. Except as may be described in the Private Placement Memorandum, to the Developer s knowledge after reasonable inquiry, there is no action, suit, proceeding, inquiry or investigation at law or in equity or before or by any court, public board or body pending or, to the knowledge of the Developer, threatened against or affecting the Developer wherein an unfavorable decision, ruling or finding could have a material adverse effect on the financial condition of the Developer or the operation by the Developer of its property or the transactions contemplated by the Transaction Documents or on the validity or enforceability in accordance with its terms of any of the Transaction Documents or any other agreement or instrument to which the Developer is a party or by which it is bound or would in any way contest the existence or powers of the Developer. (g) Documents Legal, Valid and Binding. The Developer shall, on or before the Closing, execute and deliver the applicable Transaction Documents and said Transaction Documents, when executed and delivered by the Developer and all of the other parties thereto, will be, and this Agreement is, the legal, valid and binding obligation of the Developer enforceable against it in accordance with its terms, subject, as to enforcement, to any applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors rights generally and further subject to the availability of equitable remedies. (h) Compliance with Laws and Regulations. The Developer shall conduct its affairs and carry on its business and operations in such manner as to comply in all material respects with any and all applicable laws of the United States of America and the several states thereof and to observe and conform in all material respects to all valid orders, regulations or requirements of any governmental authority applicable to the conduct of its business and operations and the ownership of its property. (i) CID Improvements Approvals. As to the CID Improvements, to the best of Developer s knowledge after reasonable inquiry, any notification of or filing with, or consent or approval of any governmental agency or entity required with respect to the issuance of the Bonds or the acquisition, construction and equipping of the CID Improvements, either has been made or obtained or will be prior to the time such are required to be obtained. The financing as contemplated in the Private Placement Memorandum is consistent with and does not violate or conflict with the terms of the various consents or approvals of any such agencies or entities. (j) Certificates. Any certificate signed by an authorized officer or agent of the Developer and delivered to the City or the Placement Agent shall be deemed a representation and warranty by the Developer to such parties as to the statements made therein. KC01 1165964-6- CITY OF OVERLAND PARK / CITY PLACE (2014)
(k) No Default Under Transaction Documents. To the best of Developer s knowledge after reasonable inquiry, no event has occurred and is continuing which with the lapse of time or the giving of notice, or both, would constitute a breach of or an event of default by the Developer under any of the Transaction Documents to which it is a party. (l) Supplements to Private Placement Memorandum. If the Private Placement Memorandum is supplemented or amended pursuant to subsection (m) of this Section 5, at the time of such supplement or amendment thereto, the information contained in the Private Placement Memorandum with respect to the Developer and related matters as provided in subsection (d) of this Section 5 as so supplemented or amended will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (m) Subsequent Events. If between the date of the Private Placement Memorandum and the Closing Date any event shall occur which might or would cause the information contained in the Private Placement Memorandum with respect to the Developer and related matters in subsection (d) of this Section 5 to contain any untrue statement of a material fact or to omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Developer shall notify the Placement Agent thereof, and if in the opinion of the Placement Agent, such event requires the preparation and publication of a supplement or amendment to the Private Placement Memorandum, the Developer will, at its expense, supplement or amend the Private Placement Memorandum in a form and in a manner approved by the Placement Agent. (n) Payment of Taxes and Other Charges. The Developer shall pay or cause to be paid as they become due and payable all taxes, assessments and other governmental charges lawfully levied or assessed or imposed upon the Developer or its property or any part thereof or upon any income therefrom; provided, however, that the Developer shall not be required to pay and discharge or cause to be paid and discharged any such tax, assessment or governmental charge to the extent that the amount, applicability or validity thereof shall be contested in good faith by appropriate proceedings in accordance with applicable laws. (o) Rights, Licenses and Permits. The Developer shall procure and maintain all material rights, licenses and permits necessary in the operation of its business and affairs; provided, however, that the Developer shall not be required to procure or maintain in effect any right, license or permit that the governing board of the Developer shall have determined in good faith is not in the best interests of the Developer and is no longer desirable in the conduct of its business and that lack of such compliance will not materially impair the ability of the Developer to pay or perform its obligations under the Transaction Documents. (p) No Federal Guarantee. The Bonds are not federally guaranteed within the meaning of Section 149(b) of the Code. 6. Reserved. 7. Indemnity, Hold Harmless and Contribution. (a) Developer. The Developer agrees to indemnify and hold harmless the City, the Placement Agent, each director, member, officer, employee or agent of the City or of the Placement Agent and each person, if any, who has the power, directly or indirectly, to direct or cause the direction of the management and policies of the City pursuant to the Act, or of the Placement Agent through the ownership of voting securities, by contract or otherwise (collectively in this subsection (a) called the Indemnified Parties ), from and against any and all losses, claims, demands, damages, liabilities or reasonable expenses whatsoever KC01 1165964-7- CITY OF OVERLAND PARK / CITY PLACE (2014)
caused by (i) any breach of the undertakings or representations of the Developer contained herein; or (ii) any untrue or misleading statement, whether actual or alleged, of a material fact contained in the Private Placement Memorandum or caused by any omission, whether actual or alleged, from the Private Placement Memorandum of any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, insofar as such statements appear in, or matter omitted pertains to material appearing in, any section of the Private Placement Memorandum that either: (A) was prepared from information furnished by the Developer or its agents (including, without limitation, attorneys, accountants or consultants); or (B) contains information about the Developer or the CID Improvements, the Development Project (as defined in the Private Placement Memorandum); or (C) both. In case a claim shall be made or any action shall be brought against one or more of the Indemnified Parties in respect of which indemnity can be sought against the Developer pursuant to the preceding paragraph, the Indemnified Parties shall promptly notify the Developer in writing, and the Developer shall promptly assume the defense thereof, including, with the consent of the Placement Agent and the City, which consents shall not be unreasonably withheld, the employment of counsel, the payment of all expenses and the right to negotiate and consent to settlement. Any one or more of the Indemnified Parties shall have the right to employ separate counsel with respect to any such claim or in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Indemnified Parties unless the employment of such counsel has been specifically authorized in writing by the Developer or there is a conflict of interest that would prevent counsel for the Developer from adequately representing the Developer and the Indemnified Parties. The Developer shall not be liable for any settlement of any such action effected without its written consent, but if settled with the written consent of the Developer or if there be a final judgment for the plaintiff in any such action which the Developer is required hereunder to assume the defense of, the Developer agrees to indemnify and hold harmless the Indemnified Parties from and against any loss or liability by reason of such settlement or judgment. (b) Placement Agent. The Placement Agent agrees to indemnify and hold harmless the City, the Developer, each director, trustee, member, officer or employee of the City or of the Developer and each person, if any, who has the power, directly or indirectly, to direct or cause the direction of the management and policies of the City pursuant to the Act, or of the Developer, by contract or otherwise (collectively in this subsection (b) called the Indemnified Parties ), from and against any and all losses, claims, demands, damages, liabilities or expenses whatsoever caused by (i) any untrue or misleading statement, whether actual or alleged, of a material fact contained in the Private Placement Memorandum, or caused by any omission, whether actual or alleged, from the Private Placement Memorandum of any material fact required to be stated or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading, provided that such indemnification shall be limited solely to statements that appear under, or matters omitted pertaining to material appearing under, the caption PRIVATE PLACEMENT OF BONDS, or such information in the Private Placement Memorandum setting forth the principal amount, interest rates and prices of the Bonds or respecting the Placement Agent, (ii) any materially untrue or materially misleading statement, representation or omission, oral or written, of the Placement Agent, or any broker, dealer, salesman, agent or representative thereof, in connection with marketing of the Bonds, other than as contained in the Preliminary Private Placement Memorandum or the Private Placement Memorandum (except as described in (i), above), (iii) any breach of any representation or undertaking by the Placement Agent hereunder, or (iv) any violation by the Placement Agent of federal or state securities laws or any rule of the Securities and Exchange Commission or the Municipal Securities Rulemaking Board in connection with the Bonds, other than with respect to information contained in or omitted from the Preliminary Private Placement Memorandum or the Private Placement Memorandum (except as described in (i), above). The Placement Agent agrees to indemnify and hold harmless the Indemnified Parties from and against any and all losses, claims, demands, damages, liabilities or expenses caused by the failure of the Placement Agent to comply with any registration or qualification requirements applicable to the Placement Agent or the Bonds in any securities or blue sky law of any jurisdiction in which such registration or KC01 1165964-8- CITY OF OVERLAND PARK / CITY PLACE (2014)
qualification is required; provided, however, that the Placement Agent shall not be required to indemnify and hold harmless an Indemnified Party if the Placement Agent failed to comply with such registration or qualification requirements or furnished inaccurate information in connection with such registration or qualification requirements in reasonable reliance upon information furnished by such party or in reliance on the opinion of Bond Counsel approved by such party. In case a claim shall be made or any action shall be brought against one or more of the Indemnified Parties in respect of which indemnity can be sought against the Placement Agent as described above, the Indemnified Parties shall promptly notify the Placement Agent in writing, and the Placement Agent shall promptly assume the defense thereof, including, with the consent of the City and the Developer, which consents shall not be unreasonably withheld, the employment of counsel, the payment of all expenses and the right to negotiate and consent to settlement. Any one or more of the Indemnified Parties shall have the right to employ separate counsel with respect to any such claim or in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Indemnified Parties unless the employment of such counsel has been specifically authorized, in writing, by the Placement Agent or there is a conflict of interest that would prevent counsel for the Placement Agent from adequately representing both the Placement Agent and the Indemnified Parties. The Placement Agent shall not be liable for any settlement of any such action effected without its written consent, but if settled with the written consent of the Placement Agent or if there be a final judgment for the plaintiff in any such action which the Placement Agent is required hereunder to assume the defense of, the Placement Agent agrees to indemnify and hold harmless the Indemnified Parties from and against any loss or liability by reason of such settlement or judgment. (c) Contribution. In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in this Section 7 is for any reason held to be unavailable to the Placement Agent, the City or the Developer, the Placement Agent and the Developer shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by said indemnity agreement incurred by the Placement Agent, the City and the Developer in such proportion as is appropriate to reflect the relative fault of the Developer and the Placement Agent in connection with the statements, omissions or other actions that resulted in such losses, liabilities, claims, damages and expenses; provided, however, that no person guilty of fraudulent misrepresentation shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section, each person, if any, who controls the Developer or the Placement Agent shall have the same rights to contribution as the Developer or the Placement Agent. (d) Survival. The covenants and agreements contained in this Section 7 shall survive the delivery of the Bonds. 8. Conditions to Obligations of Placement Agent. The obligation of the Placement Agent to place the Bonds and the obligation of the City to sell the Bonds, in each case on the Closing Date, will be subject to the accuracy of the representations and warranties of the Developer and the City herein, to the accuracy of statements to be made on behalf of the City and the Developer hereunder, to the performance by the City and the Developer of their obligations hereunder and to the following additional conditions precedent: (a) At the Closing Date, the Ordinance, the Transaction Documents, and all official action of the City relating thereto and all actions taken by the Trustee and the Developer in connection therewith shall be in full force and effect and shall not have been amended, modified or supplemented, and the Private Placement Memorandum shall not have been amended or supplemented except as may have been agreed to by the Placement Agent. (b) The Placement Agent shall have received each of the documents set forth in Section 3 of this Agreement. KC01 1165964-9- CITY OF OVERLAND PARK / CITY PLACE (2014)
All opinions, letters, certificates, instruments and other documents mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof if, but only if, they are in form and substance satisfactory to the Placement Agent. 9. Right to Termination. The Placement Agent shall have the right to cancel its obligation to place the Bonds upon written notification by the Placement Agent to the City and the Developer if between the date hereof and the date of the Closing: (i) (A) legislation shall be enacted or be actively considered for enactment by the Congress, or recommended to the Congress for passage by the President of the United States, or favorably reported for passage to either House of the Congress by any committee of such House to which such legislation has been referred for consideration or introduced with an effective date which would, if enacted, apply to the Bonds, or (B) a decision by a federal court of the United States or the United States Tax Court shall be rendered, or a ruling, regulation, release or other promulgation by or on behalf of the Treasury Department of the United States, the Internal Revenue Service or other governmental agency shall be made or proposed with respect to federal taxation upon revenues or other income pledged by the City under the Indenture, or upon interest on the Bonds or securities of the general character of the Bonds, or (C) other action or events shall have occurred or transpired, any of which has the purpose or effect, directly or indirectly, in the reasonable opinion of Bond Counsel or counsel to the Placement Agent, of materially adversely affecting the federal or State of Kansas income tax consequences of any of the transactions contemplated in connection herewith, or, in the reasonable opinion of the Placement Agent, materially adversely affects the market for the Bonds or the ability of the Placement Agent to enforce contracts for the sale of the Bonds at the contemplated offering price; or (ii) there shall exist any fact or any event shall have occurred which either (A) makes untrue or incorrect any statement of a material fact or material information contained in the Private Placement Memorandum as then amended or supplemented or (B) is not reflected in the Private Placement Memorandum as then amended or supplemented but should be reflected therein in order to make the statements and information contained therein not misleading in any material respect; or (iii) there shall have occurred any outbreak or escalation of hostilities or any national or international calamity or crisis, including a financial crisis, the effect of which on the financial markets of the United States being such as, in the reasonable opinion of the Placement Agent, would materially adversely affect the market for the Bonds or the ability of the Placement Agent to enforce contracts for the sale of the Bonds at the contemplated offering prices; or (iv) there shall be in force a general suspension of trading on the New York Stock Exchange or a general banking moratorium shall have been declared by federal, Kansas or New York authorities, the effect of which on the financial markets of the United States is such as would materially adversely affect the market for the Bonds or the ability of the Placement Agent to enforce contracts for the sale of the Bonds at the contemplated offering prices; or (v) legislation shall be enacted or considered for enactment by the Congress, or recommended to the Congress for passage by the President of the United States, or introduced in either House of Congress by any Committee of such House to which such legislation has been referred for consideration, or a decision, order or decree of a court of competent jurisdiction shall be rendered, or an order, ruling, regulation or Private Placement Memorandum of or on behalf of the Securities and Exchange Commission or the Municipal Securities Rulemaking Board shall be rendered or made, with the purpose or effect that the issuance, offering or sale of the Bonds, as contemplated by this Agreement or by the Private Placement Memorandum, is or would be in violation of any provision of the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, or the Trust Indenture Act of 1939, as amended, or with the purpose or effect KC01 1165964-10- CITY OF OVERLAND PARK / CITY PLACE (2014)
of otherwise prohibiting the issuance, offering or sale of the Bonds as contemplated by this Agreement or by the Private Placement Memorandum; or (vi) in the reasonable opinion of the Placement Agent, the market price of the Bonds, or the market price generally of obligations of the general character of the Bonds, might be adversely affected because: (A) additional material restrictions not in force as of the date hereof shall have been imposed upon trading in securities generally by any governmental authority or by any national securities exchange; (B) the New York Stock Exchange or other national securities exchange, or any governmental authority, shall impose, as to the Bonds or similar obligations, any material restrictions which are neither now in force nor have been announced to become effective prior to the Closing, or increase materially those now in force or so announced, with respect to the extension of credit by, or the charge to the net capital requirements of, underwriters, or (C) the President of the United States of America, a member of his cabinet or the Securities and Exchange Commission, including a lesser official acting on the behalf of any of them, or a member of the Congress, shall have announced the intended introduction of legislation to achieve the same effect as that described in clause (i) or (v) of this paragraph. 10. Expenses. (a) If the Bonds are sold to the bond purchaser or purchasers by the City, the Developer shall pay or cause the Trustee to pay out of the proceeds of the Bonds the following expenses incident to the performances of its obligations hereunder: (i) the cost of preparing, duplicating (or printing), mailing and delivering the Transaction Documents, including the costs of printing copies of the Preliminary Private Placement Memorandum and the Private Placement Memorandum; (ii) the cost of preparation and printing of the definitive Bonds; (iii) the Placement Fee and the fees and disbursements of Bond Counsel, the Trustee, the City, counsel to the City, the financial advisor to the City and counsel to the Placement Agent; (iv) the registration fees of the Treasurer of the State and the fees of the Attorney General of the State related to the approval of the Bond transcript; and (vi) all other fees and expenses reasonably incurred in connection with the preparation of the Transaction Documents and/or the initial offering and sale of the Bonds except those to be paid by the Placement Agent pursuant to the last paragraph of this Section 10. (b) To the extent not paid pursuant to the foregoing paragraph and if the Bonds are placed by the Placement Agent, the Developer shall pay the Administrative Fees (as defined in the Indenture). (c) Except as otherwise provided above in this Section 10, the Placement Agent shall pay all travel, postage, photocopying, telephone, fax, computer, word processing and other similar expenses incurred by them or any of them in connection with its placement of the Bonds. 11. Notices. Any notice or other communication to be given to the City under this Agreement may be given by delivering the same in writing to the City at its address set forth above, and any notice or other communication to the Developer may be given by delivering the same in writing to the Developer at its address set forth above. Any notice or other communication to be given to the Placement Agent under this Agreement may be given by delivering the same in writing to UMB Bank, N.A., 1010 Grand Boulevard, Kansas City, Missouri 64106, Attention: Phil Richter. 12. Benefits; Successors. This Agreement is made solely for the benefit of the City, the Developer and the Placement Agent and no other person shall acquire or have any right hereunder or by virtue hereof. 13. Governing Law. This Agreement shall be governed by the laws of the State. 14. Survival. All of the representations, warranties and agreements of the City, the Placement Agent and the Developer hereunder shall remain operative and be in full force and effect regardless of any KC01 1165964-11- CITY OF OVERLAND PARK / CITY PLACE (2014)
investigations made by and on behalf of the Placement Agent, and shall survive the delivery of the Bonds to the Placement Agent. 15. Counterparts. This Agreement may be simultaneously executed in counterparts, each of which shall be an original and all of which shall constitute one and the same instrument. 16. Effectiveness. This Agreement (i) shall become effective upon the execution of the acceptance hereof by the City and the Developer and (ii) supersedes all prior agreements between the City, the Developer and the Placement Agent regarding the issuance of the Bonds. (Remainder of this page intentionally left blank) KC01 1165964-12- CITY OF OVERLAND PARK / CITY PLACE (2014)
Very truly yours, UMB BANK, N.A., as Placement Agent By: Name: Title: Accepted: CITY OF OVERLAND PARK, KANSAS By: Title: Date:, 2014 Accepted: COLLEGE 69 ASSOCIATES, LLC, a Kansas limited liability company By: BK Properties, LLC, a Kansas limited liability company, its member By: Title: Date:, 2014 KC01 1165964 S-1 CITY OF OVERLAND PARK / CITY PLACE (2014)
EXHIBIT A Original Purchaser Principal Amount KC01 1165964 A-1 CITY OF OVERLAND PARK / CITY PLACE (2014)
SCHEDULE I TO MATURITY SCHEDULE $6,030,000 CITY OF OVERLAND PARK, KANSAS SPECIAL ASSESSMENT BONDS, SERIES 2014 (CITY PLACE COMMUNITY IMPROVEMENT DISTRICT PROJECT) Maturity (September 1) Principal Amount Interest Rate Price Yield 2034 $6,030,000 % 100.00% % KC01 1165964 Sch. I-1 CITY OF OVERLAND PARK / CITY PLACE (2014)