Oppenheimer & Co. Inc.

Transcription

1 This Preliminary Official Statement and the information herein are subject to change, completion or amendment without notice. These securities may not be sold nor may offers to buy be accepted prior to the time the Official Statement is delivered in final form. Under no circumstances shall this Preliminary Official Statement constitute an offer to sell or the solicitation of an offer to buy, nor may there be any sale of these securities in any jurisdiction in which such offer, solicitation or sales would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. NEW ISSUE BOOK-ENTRY ONLY Preliminary Official Statement Dated April 1, 2010 RATING: STANDARD & POOR S: BBB See RATING herein BANK QUALIFIED In the opinion of Kutak Rock LLP, Kansas City, Missouri, Bond Counsel, under existing law, regulations, rulings, and judicial decisions and assuming the accuracy of certain representations and continued compliance with certain requirements of the Internal Revenue Code of 1986, as amended (the Code ), the interest on the Bonds is excluded from gross income for federal income tax purposes, is not a specific item of tax preference and is not included in adjusted current earnings for purposes of the federal alternative minimum tax. The interest on the Bonds is excluded from the computation of Kansas adjusted gross income. The City has designated the Bonds as qualified tax-exempt obligations within the meaning of Section 265(b) of the Code. See TAX MATTERS herein. Dated: Date of Delivery $16,800,000 * CITY OF OVERLAND PARK, KANSAS TRANSPORTATION DEVELOPMENT DISTRICT SALES TAX REVENUE BONDS SERIES 2010 (OAK PARK MALL PROJECT) Due: As shown below The Bonds are issuable only as fully registered Bonds, without coupons, and, when issued, will be registered in the name of Cede & Co., as registered owner and nominee for The Depository Trust Company ( DTC ), New York, New York. DTC will act as securities depository for the Bonds. Purchases of the Bonds will be made in book-entry form in the denomination of $25,000 or any integral multiple of $5,000 in excess thereof. Purchasers will not receive physical certificates representing their interests in Bonds purchased. So long as Cede & Co. is the registered owner of the Bonds, as nominee of DTC, references herein to the Bondowners or Registered Owners shall mean Cede & Co., as aforesaid, and shall not mean the Beneficial Owners (herein defined) of the Bonds. Principal of and semiannual interest on the Bonds will be paid from moneys available therefor under the terms of the Indenture (herein defined). So long as DTC or its nominee, Cede & Co., is the Bondowner, such payments will be made directly to such Bondowner. DTC is expected, in turn, to remit such principal and interest to the DTC Participants (herein defined) for subsequent disbursement to the Beneficial Owners. Interest on the Bonds will be payable semiannually on each April 1 and October 1, beginning October 1, The Bonds are being issued by the City of Overland Park, Kansas (the City ) pursuant to a Trust Indenture dated as of May 1, 2010 (the Indenture ), by and between the City and UMB Bank, N.A., Kansas City, Missouri, as trustee (the Trustee ). The Bonds are special, limited obligations of the City payable solely from and secured by a pledge of, and lien upon, the revenues derived, received and collected from the TDD Sales Tax (as described herein), of one-half of one percent (0.5%) within the Oak Park Mall Transportation Development District and other moneys held by the Trustee pursuant to the Indenture. See SECURITY FOR THE BONDS TDD SALES TAX Security for the Bonds herein. THE BONDS ARE NOT GENERAL OBLIGATIONS OF THE CITY AND NEITHER THE FULL FAITH AND CREDIT NOR THE GENERAL TAXING POWER OF THE CITY, THE STATE OF KANSAS (THE STATE ), OR ANY POLITICAL SUBDIVISION THEREOF IS PLEDGED TO THE PAYMENT OF THE BONDS. THE BONDS SHALL NOT CONSTITUTE AN INDEBTEDNESS OF THE CITY, THE STATE, OR ANY POLITICAL SUBDIVISION THEREOF WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY DEBT LIMITATION OR RESTRICTION. The Bonds involve a high degree of risk, and prospective purchasers should read the Section herein captioned BONDOWNERS RISKS. The Bonds may not be suitable investments for all persons, and prospective purchasers should carefully evaluate the risks and merits of an investment in the Bonds, should confer with their own legal and financial advisors and should be able to bear the risk of loss of their investment in the Bonds before considering a purchase of the Bonds. herein. The Bonds are subject to redemption prior to maturity in certain circumstances, as described herein. See THE BONDS Redemption Provisions Maturity Schedule Maturity Date Principal Amount Interest Rate Yield Price CUSIP April 1, 2020* April 1, 2032* The Bonds are offered when, as and if issued by the City and received by Oppenheimer & Co. Inc. (the Underwriter ), subject to approval of their validity by Kutak Rock LLP, Kansas City, Missouri, Bond Counsel, and subject to certain other conditions. Certain other legal matters will be passed upon for the City by Robert J. Watson, City Attorney, and for the Underwriter by its counsel, Bryan Cave LLP, Kansas City, Missouri. It is expected the Bonds will be available for delivery to the Underwriter on or about May, This cover page contains certain information for quick reference only. It is not a summary of this issue. Investors must read the entire Official Statement to obtain information essential to the making of an informed investment decision. * Preliminary, subject to change. Oppenheimer & Co. Inc.

2 CITY OF OVERLAND PARK, KANSAS 8500 Santa Fe Drive Overland Park, Kansas MAYOR Carl Gerlach CITY COUNCIL Fred Spears, Council President Ward IV David White Ward III Terry Happer Scheier Ward I Terry Goodman Ward IV Dave Janson Ward I Jim Hix Ward V Paul Lyons Ward II John Skubal Ward V Curt Skoog Ward II George Kandt Ward VI Donna Owens Ward III Dan Stock Ward VI CITY MANAGER John Nachbar DEPUTY CITY MANAGER Kristy Cannon Stallings OWNER/DEVELOPER Oak Park Mall, LLC BOND COUNSEL Kutak Rock LLP Kansas City, Missouri DISCLOSURE COUNSEL Kutak Rock LLP Kansas City, Missouri UNDERWRITER Oppenheimer & Co. Inc. Kansas City, Missouri UNDERWRITER S COUNSEL Bryan Cave LLP Kansas City, Missouri TRUSTEE UMB Bank, N.A. Kansas City, Missouri

3 REGARDING USE OF THIS OFFICIAL STATEMENT The use of this Official Statement does not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of the Bonds by any person, in any jurisdiction in which it is unlawful for such person to make such an offer, solicitation or sale. Interested investors are being provided the opportunity to ask such questions and examine such documents and records as they may desire, and are advised to contact the Underwriter to secure further information concerning the Bonds. No dealer, broker, salesman or other person has been authorized to give any information or to make any representations in connection with the offering of the Bonds other than those contained in this Official Statement, and, if given or made, such other information or representations must not be relied upon. The information set forth or incorporated by reference herein has been obtained from sources believed to be reliable, but the accuracy or completeness of that information is not guaranteed by, and should not be construed as a representation by Oppenheimer & Co. Inc., the Underwriter for the Bonds. The information and expressions of opinion herein are subject to change without notice, and neither the delivery of this Official Statement nor any sale made hereunder shall under any circumstances create any implication that the information herein is correct as of any time subsequent to the date hereof or that there has been no change in the affairs of the City since the date hereof (or since the date of any other information dated other than the date hereof). This Official Statement should be considered in its entirety and no one factor considered less important than any other by reason of its position in this Official Statement. Where statutes, resolutions, ordinances, reports or other documents are referred to herein, reference should be made to such statutes, resolutions, ordinances, reports or other documents for more complete information regarding the rights and obligations of parties thereto, facts and opinions contained therein and the subject matter thereof. Upon issuance, the Bonds will not be registered under the Securities Act of 1933, as amended, nor will the Indenture be qualified under the Trust Indenture Act of 1939, as amended, in reliance upon exemptions contained in such Acts, and the Bonds will not be listed on any stock or other securities exchange. Neither the Securities and Exchange Commission nor any other federal, state, municipal or other governmental entity shall have passed upon the accuracy or adequacy of any portion of this Official Statement. Any representation to the contrary is a criminal offense. IN CONNECTION WITH THIS OFFERING, THE UNDERWRITER MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE BONDS AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED OR RECOMMENCED AT ANY TIME. THE PRICES AND OTHER TERMS RESPECTING THE OFFERING AND SALE OF THE BONDS MAY BE CHANGED FROM TIME TO TIME BY THE UNDERWRITER AFTER SUCH TIME AS THE BONDS ARE RELEASED FOR SALE, AND THE BONDS MAY BE OFFERED AND SOLD AT PRICES OTHER THAN THE INITIAL OFFERING PRICE.

4 TABLE OF CONTENTS Page INTRODUCTION...5 THE ISSUER...5 THE TRANSPORTATION PROJECT...5 THE TDD SALES TAX...7 THE BONDS...8 SECURITY FOR THE BONDS TDD SALES TAX...14 ESTIMATED SOURCES & USES OF FUNDS...14 DEBT SERVICE SCHEDULE AND ESTIMATED SALES TAXES...14 BONDOWNERS RISK...15 THE SHOPPING CENTER...21 TENANTS; OCCUPANTS...24 UNDERWRITING...24 NO LITIGATION...24 RATING...25 CERTAIN LEGAL MATTERS...25 CONTINUING DISCLOSURE...25 FINANCIAL ADVISOR...26 TAX MATTERS...26 AUTHORIZATION...28 APPENDIX A RETAIL SALES TAX STUDY OAK PARK MALL TRANSPORTATION DEVELOPMENT DISTRICT APPENDIX B FORM OF TRUST INDENTURE APPENDIX C - MAP OF TRANSPORTATION DEVELOPMENT DISTRICT APPENDIX D - PROPOSED FORM OF OPINION OF BOND COUNSEL APPENDIX E - FORM OF CONTINUING DISCLOSURE AGREEMENTS APPENDIX F ECONOMIC AND DEMOGRPHIC INFORMATION OF THE CITY

5 STATEMENT SUMMARY The following Summary Statement is subject in all respects to more complete information contained elsewhere in this Official Statement, which should be read in its entirety. The offering of the Bonds to potential investors is made only by means of this entire Official Statement. No person is authorized to detach this Summary Statement from the Official Statement or otherwise use it without the entire Official Statement. The order and placement of materials in the Official Statement, including the Appendices, are not to be deemed to be a determination of relevance, materiality or relative importance. All capitalized terms used in this Official Statement that are not otherwise defined herein shall have the meanings ascribed to them in the Indenture. See APPENDIX B attached hereto. Purpose of the Official Statement The purpose of the Official Statement, including the cover page and the Appendices hereto, is to furnish information relating to the Transportation Development District Sales Tax Revenue Bonds, Series 2010 (Oak Park Mall Project) of the City of Overland Park, Kansas (the City ) (the Bonds ), dated the date set forth on the cover hereof in the principal amount of $16,800,000 *. Definitions Capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in APPENDIX B FORM OF TRUST INDENTURE The City, the Transportation Development District and the TDD Sales Tax The City is a municipal corporation organized and existing pursuant to the laws of the State of Kansas as a city of the first class. On August 15, 2007, a petition was filed with the City Clerk of the City proposing the creation of a transportation district to be known as the Oak Park Mall Transportation Development District (the Transportation District ), outlining transportation projects related to the Transportation District and the imposition of a transportation district sales tax in order to pay the costs of the proposed transportation projects. On September 17, 2007, the governing body of the City adopted Resolution No creating the Transportation District and imposing a transportation district sales tax in the amount of 0.5% (the TDD Sales Tax ) imposed on the selling of tangible personal property at retail or rendering or furnishing services taxable pursuant to the provisions of the Kansas Retailers Sales Tax Act within the Transportation District. The TDD Sales Tax became effective January 1, As of September 30, 2009, $2,517, in TDD Sales Tax had been collected by the State of Kansas and received by the City. The TDD Sales Tax will be collected for a maximum period equal to 22 years from the date of issuance of the Bonds (April 1, 2032). In the event that the Bonds are redeemed prior to maturity under the terms of the Special Mandatory Redemption provisions of the Indenture (see THE BONDS Redemption Provisions Special Mandatory Redemption ) then collection of the TDD Sales will end on such date of final redemption or maturity of any Bonds outstanding (but in no event later than April 1, 2032). See THE TDD SALES TAX TDD Sales Taxe Revenues. The City has pledged 100% of the TDD Sales Tax revenues (the TDD Sales Tax Revenues ) received by the City from the TDD Sales Tax for the purpose of providing for the costs of (i) the Transportation Project (as defined herein), (ii) certain * Preliminary, subject to change.

6 costs of issuance of the Bonds and (iii) funding of the Debt Service Reserve Fund for the Bonds. TDD Sales Tax Revenues collected and received by the City before September 30, 2009 in the amount of $2,500,000 have been paid to the Developer to reimburse the Developer for portions of the Transportation Project which have been completed. TDD Sales Tax Revenues collected by the State through January 31, 2010 and remitted to the City in the amount of $ will be transferred by the City to the Trustee to be deposited in the Project Fund and used to pay costs of the Transportation Project. TDD Sales Tax Revenues collected by the State after January 31, 2010 are pledged to the payment of the Bonds. In the Indenture, the City covenants to provide for the payment of the principal of, premium, if any, and interest on the Bonds as and when the same become due and payable, but solely from the pledged TDD Sales Tax Revenues. Reference is made to the entire text of the Indenture attached hereto as APPENDIX B for full and complete descriptions of the covenants of the City relating to security for the Bonds. For more detailed information regarding the TDD Sales Tax, the TDD Sales Tax Revenues and the Transportation Project, see the headings THE TDD SALES TAX and THE TRANSPORTATION PROJECT, respectively. The Transportation District is comprised of approximately 99.5 acres located at the southeast corner of Quivira and 95 th Street within the City. The Oak Park Mall is wholly located within the Transportation District, as well as outparcels and development sites adjacent to the Mall. A map of the boundaries of the Transportation District is attached hereto as APPENDIX C. Purpose of the Bonds The Bonds are being issued to (i) finance a parking lot and other public improvements, as more particularly described herein under the caption THE TRANSPORTATION PROJECT, (ii) to pay certain costs of issuance of the Bonds and (iii) to fund a portion of the Debt Service Reserve Requirement for the Bonds. The Bonds The Bonds will be issued as authorized by an ordinance passed by the City and the Indenture and will bear interest as described on the cover page. The Bonds will be issued in denominations of $25,000 each and integral multiples of $5,000 in excess thereof. The Bonds will be registered bonds without coupons registered in the name of Cede & Co., as registered owner and nominee for The Depository Trust Company. Security for the Bonds The Bonds shall be special, limited obligations of the City payable solely from, and secured by a pledge of and lien upon the revenues derived, received and collected by the City from the TDD Sales Tax collected within the Transportation District. THE BONDS SHALL NOT BE OR CONSTITUTE A GENERAL OBLIGATION OF THE CITY, NOR SHALL THEY CONSTITUTE AN INDEBTEDNESS OF THE CITY WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY PROVISION, LIMITATION OR RESTRICTION. 2

7 The Trustee UMB Bank, N.A., Kansas City, Missouri, is designated pursuant to the Indenture to serve as the Trustee, and act as paying agent, bond registrar and transfer agent in connection with the issuance of the Bonds. The Indenture The City passed an ordinance (the Ordinance ) under which authority the City will execute and deliver the Indenture. Both the Ordinance and Indenture provide the controlling provisions for the issuance of the Bonds. The Transportation Development District Act, K.S.A , 140 et seq., as amended (the TDD Act ), permits, upon passage of the Ordinance, the revenues from the issuance of transportation development district bonds to be used for specific types of Transportation Project Costs. The net Bond proceeds, after funding the debt service reserve fund and payment of issuance costs, will be used to pay for Transportation Project Costs. Redemption The Bonds are subject, in whole or in part, to optional and mandatory redemption as described in THE BONDS Redemption Provisions. Continuing Disclosure Pursuant to continuing disclosure agreements between the City and the Trustee and the Developer and the Trustee, the City and the Developer will undertake to provide certain annual financial information concerning the TDD Sales Tax Revenues and notices of the occurrence of certain material events for the benefit of the Bondholders. The specific nature of the financial information to be provided and the information contained in such notices of material events is set forth in APPENDIX E FORM OF CONTINUING DISCLOSURE AGREEMENTS. The City has never failed to comply in all material aspects with any previous disclosure covenants under S.E.C. Rule 15c2-12(b)(5). TDD Sales Tax Revenue Projections Alvarez and Marsal has prepared the Retail Sales Tax Study Oak Park Mall Transportation Development District (the Revenue Projections ). A copy of the Revenue Projections is attached hereto as APPENDIX A. The City makes no representation or warranty (express or implied) as to the accuracy or completeness of any financial, technical or statistical data or any estimates, projections, assumptions or expressions of opinion set forth in the Revenue Projections. Bondowners Risks The Bonds involve a substantial degree of risk, and prospective purchasers should read the Section herein captioned BONDOWNERS RISKS. Additional Information Additional information regarding the City or the Bonds may be obtained from the Underwriter, Oppenheimer & Co. Inc., Attention: Matthew Webster, (816) , 4717 Grand Boulevard, Suite 700, Kansas City, Missouri (the Underwriter ) or from Public Financial Management, 45 South Seventh Street, Suite 2800, Minneapolis, Minnesota 55402, Attention: Heather Casperson (612) , CASPERSONH@pfm.com. 3

8 Tax Status In the opinion of Bond Counsel, under existing law, the interest accruing on the Bonds is exempt from federal income taxation, subject to certain limitations and exceptions as set forth herein under the heading TAX MATTERS, and is not an item of tax preference or included in adjusted current earnings for purposes of the federal alternative minimum tax imposed upon individuals and corporations. Additionally, under existing laws, the interest on the Bonds is excluded from computation of Kansas adjusted gross income. See APPENDIX D FORM OF BOND COUNSEL OPINION. [Remainder of Page Intentionally Left Blank] 4

9 Purpose of this Official Statement OFFICIAL STATEMENT $16,800,000 * CITY OF OVERLAND PARK, KANSAS TRANSPORTATION DEVELOPMENT DISTRICT SALES TAX REVENUE BONDS SERIES 2010 (OAK PARK MALL PROJECT) INTRODUCTION The purpose of this Official Statement, including its cover page and Appendices, is to furnish information in connection with the offering of the Transportation Development District Sales Tax Revenue Bonds, Series 2010 (Oak Park Mall Project) (the Bonds ), dated the Date of Delivery, being issued by the City of Overland Park, Kansas (the City ), in the principal amount of $16,800,000 *, pursuant to the terms of an ordinance passed by the City and a Trust Indenture dated as of May 1, 2010 (the Indenture ) by and between the City and UMB Bank, N.A., Kansas City, Missouri, as trustee (the Trustee ). There follows in this Official Statement and the Appendices hereto a description of the Bondowners risks, and descriptions of the City, the Transportation Project and the Bonds. Such descriptions do not purport to be comprehensive or definitive. All references herein to the Bonds are qualified in their entirety by reference to such documents, copies of which may be examined at the offices of Oppenheimer & Co., Attention: Matthew Webster, (816) , 4717 Grand Avenue, Suite 700, Kansas City, Missouri (the Underwriter ) or from Public Financial Management, 45 South Seventh Street, Suite 2800, Minneapolis, Minnesota 55402, Attention: Heather Casperson (612) , or will be provided to any prospective purchaser requesting the same in writing. THE ISSUER The City is a municipal corporation duly organized and existing under the laws of the State as a city of the first class. See APPENDIX F ECONOMIC AND DEMOGRAPHIC INFORMATION OF THE CITY. Pursuant to K.S.A ,140 et. seq., as amended (the Act ), the City is authorized to issue transportation development district sales tax revenue bonds, the proceeds of which shall be used for the purpose of paying all or part of the Transportation Project Costs that may be paid through financing as provided in the Act. EXCEPT FOR INFORMATION CONCERNING THE CITY IN THE SECTIONS HEREOF CAPTIONED THE ISSUER, LITIGATION, CONTINUING DISCLOSURE, AND TDD SALES TAX TDD SALES TAX REVENUES, NONE OF THE INFORMATION IN THIS OFFICIAL STATEMENT HAS BEEN SUPPLIED OR VERIFIED BY THE CITY, AND THE CITY MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. THE TRANSPORTATION PROJECT A portion of the proceeds of the Bonds will be used to finance a portion of the costs of the Transportation Project. The Transportation Project consists of certain parking and public improvements * Preliminary, subject to change 5

10 within the Transportation District. The Transportation Project is being developed by Oak Park Mall, LLC (the Developer ), the owner of the Shopping Center. Scope of Transportation-Related Work Description 1. Demolition and Abatement Demolition and repair of selected parking and paving areas Demolition of sidewalks, landscaping and selected underground utilities Demolition of detention basin 2. Site Work Erosion control devices related to transportation-related construction Rough and fine grading of parking, landscape and utility construction areas Engineering, layout and testing of the above 3. Surface Parking Engineering Repair and/or replace sub-grade material Add drains as required Repair or replace stormdrainage structures Re-work or construct, as necessary, concrete curb and gutter Asphalt and concrete paving and Pavement markings, signage, etc 4. Common Areas Replace landscaping and repair irrigation Repair and/or replace exterior common area site amenities including sidewalks and decorative lighting Replace site environmental graphics, signage and way finding Visual and physical pedestrian connections from 95th to Mall Entries 5. Lighting Re-work, repair, replace or install parking lot lights and poles Pedestrian level lighting 6. Infrastructure/Utilities Repair, installation and/or replacement of select primary and secondary utilities including: Water (domestic and fire) Sanitary sewer Electric, Telephone, Gas Storm water Maintenance and repair of existing concrete box culvert under mall parcel Installation of underground detention basin in parking area For more information, see the Section herein captioned THE SHOPPING CENTER. The City and the Developer entered into a Development Agreement dated July 6, 2009, to formalize the construction and financing of the Transportation Project. 6

11 Project Description Estimated Costs* Transportation-Related Costs $ Issuance Costs ** Debt Service Reserve Fund TOTAL $19,300,000 *These projects and costs are estimates only and are subject to change. **Includes legal, administrative, bond counsel, and underwriter fees General Information THE TDD SALES TAX The TDD Sales Tax Revenues which the City has pledged as security for the Bonds are derived from the TDD Sales Tax, which is a one-half of one percent (0.5%) sales tax imposed by the City within the Transportation District. The TDD Sales Tax became effective on January 1, The general authority for the City to impose the TDD Sales Tax is derived from the Act, which allows for the imposition of a transportation district sales tax within a transportation development district created by a city. The TDD Sales Tax will be collected for a maximum period equal to 22 years from the date of issuance of the Bonds (April 1, 2032). In the event that the Boards are redeemed prior to maturity under the terms of the Special Mandatory Redemption provisions of the Indenture (see THE BONDS Redemption Provisions Special Mandatory Redemption ) then collection of the TDD Sales will end on such date of final redemption or maturity of any Bonds outstanding (but in no event later than April 1, Generally, if an item is subject to State sales tax, it is also subject to the TDD Sales Tax. If an item is exempt from the State sales tax, it is exempt from the TDD Sales Tax. A city or county may not grant a retailer an exemption from TDD Sales Tax. Every resident or non-resident who purchases taxable items or services within the Transportation District is subject to the TDD Sales Tax. Except for utilities and cable television service, the TDD Sales Tax is based on the site of the retail transaction. Allocation and Distribution of TDD Sales Tax Pursuant to Kansas law, the TDD sales taxes are required to be administered, collected, and enforced by the State Department of Revenue. The State Department of Revenue collects the TDD sales tax from the retailer at the same time it collects the State sales tax. The Kansas statutes provide the State Director of Taxation with tools to enforce the tax such as the power to issue warrants, hold investigations and hearings, examine records, and place liens on property. There are also provisions in the Kansas statutes for adding interest and penalties to the balance of unpaid taxes. The State is required to make at least quarterly distributions of the TDD sale tax revenues it collects on behalf of local governments. Currently, distributions from the State of the TDD sales tax collections are received by counties and cities monthly, with an approximate three-month lag between retail activity and the date of receipt of TDD sales tax collections by counties and cities. 7

12 TDD Sales Tax Revenues As of September 30, 2009, the State had collected and the City had received $2,517, in TDD Sales Tax Revenues, of which $2,500,000 in TDD Sales Tax Revenues were paid to the Developer to reimburse the Developer for certain Transportation Project Costs. TDD Sales Tax Revenues collected by the State from September 30, 2009 through January 31, 2010 and received by the City will be paid by the City to the Trustee on the Closing Date to be deposited in the Project Fund and applied in accordance with the terms of the Indenture. All TDD Sales Tax received from the State by the City after January 31, 2010 will be transferred to the Trustee for deposit in the Revenue Fund. Alvarez and Marshal has prepared the Revenue Projections for the TDD Sales Tax Revenues. The Revenue Projections are attached hereto as APPENDIX A. Authorization THE BONDS The Bonds are being issued pursuant to the Indenture and pursuant to and in full compliance with the Constitution and laws of the State, including particularly K.S.A , 140 et seq, as amended (the TDD Act ). The City authorized the execution of the documents to which it is a party and the issuance and sale of the Bonds pursuant to an Ordinance passed on, 2010 and the Trust Indenture dated as of May 1, 2010, by and between the City and UMB Bank, N.A., Kansas City, Missouri, as trustee ( Trustee ). Description of the Bonds The Bonds will be issuable in the form of fully registered bonds, without coupons, in minimum denominations of $25,000 and any integral of $5,000 in excess thereof. Ownership interests in the Bonds will be available to purchasers through book-entry only. See BONDOWNERS RISKS Lack of Transferability. The Bonds will be dated as of the date of the Date of Delivery and will mature on the dates set forth on the cover page of the Official Statement. Principal of the Bonds is payable April 1, 2020* and April 1, 2032 * or upon prior redemption. The Bonds will bear interest at the rates per annum set forth on the cover page hereof, which interest will be payable semiannually on April 1 and October 1 in each year (each an Interest Payment Date ), commencing October 1, Interest and mandatory and special mandatory sinking fund payments will be payable by check or draft of the Trustee mailed to the persons who are the registered owners of the Bonds as of the close of business on the 15 th day of the calendar month next preceding such Interest Payment Date. Registration, Transfer and Exchange The Bonds will be issued only in fully registered form. Any Bond may be transferred only on the Bond Register to be maintained by the Trustee upon surrender thereof at the Payment Office of the Trustee duly endorsed for transfer or accompanied by a written instrument of transfer by the registered owner or such owner s attorney or legal representative in such form as shall be satisfactory to the Trustee. No service charge shall be made to any Bondowner for registration, transfer or exchange of Bonds, but the City and the Trustee may make a charge for every such exchange or transfer sufficient to reimburse it for any tax or other governmental charge required to be paid with respect to such exchange or transfer, and such charge shall be paid before any such transfer or exchange shall be completed. The City or the Trustee may impose a charge against a Bondowner for the reimbursement of any governmental charge required to be paid in the event that such Bondowner fails to provide a correct taxpayer identification * Preliminary, subject to change. 8

13 number to the Trustee. Such charge may be deducted from an interest or principal payment due to the Bondowner. The Developer has agreed to pay all costs incurred in connection with the issuance, transfer, exchange, registration, redemption, or payment of the Bonds not otherwise payable from Bond proceeds except (a) the reasonable fees and expenses in connection with the replacement of a Bond or Bonds mutilated, stolen, lost, or destroyed, or (b) any tax or other governmental charge imposed in relation to the transfer, exchange, registration, redemption, or payment of the Bonds. No transfer of a Bond is required to be made by the Trustee on or subsequent to any Special Record Date (as defined in the Indenture) and prior to the succeeding Interest Payment Date or during the fifteen days immediately preceding the selection of Bonds for such redemption or after such Bonds or any portion thereof have been selected for redemption. Redemption Provisions Mandatory Sinking Fund Redemption. The Bonds maturing on April 1, 2020 * and April 1, 2032* are term Bonds and are subject to mandatory redemption prior to maturity, by lot, at a redemption price equal to the principal amount thereof to be redeemed, plus accrued interest to the date fixed for redemption, in the principal amounts and on April 1 of the years set forth below: 2020 Term Bond* **Final Maturity Principal Year Amount 2011 $ 75, $ 20, $ 60, $ 95, $140, $190, $250, $305, $370, $440,000** * Preliminary, subject to change. 9

14 2032 Term Bond * **Final Maturity Principal Year Amount 2021 $ 515, $ 595, $ 690, $ 780, $ 890, $1,000, $1,115, $1,250, $1,390, $1,540, $1,700, $3,390,000** Optional Redemption. The Bonds are subject to redemption prior to maturity at the option of the City, in whole or in part, at any time, in such principal amounts representing Authorized Denominations and from such maturities as the City shall determine, on any date on or after 1, 20 at redemption prices of 100% (expressed as a percentage of the principal amount redeemed), plus accrued interest to the date fixed for redemption. Mandatory Redemption from Moneys in the Project Fund. The Bonds are subject to mandatory redemption by the Trustee on any date at the redemption price of 100% of the principal amount being redeemed, together with accrued interest thereon to the date fixed for redemption from moneys remaining in the Project Fund on the earlier of completion of the Transportation Project or April 1, Special Mandatory Redemption. The Bonds are subject to special mandatory redemption on an Interest Payment Date, at a redemption price equal to 100% of the principal amount thereof plus accrued interest to the redemption date, in an amount equal to the amount which is on deposit in the Redemption Account of the Debt Service Fund in excess of $50,000 (rounded to the nearest $5,000) forty-five (45) days prior to each Interest Payment Date (or if such date is not a Business Day, the immediately preceding Business Day). The Bonds are also subject to special mandatory redemption by the City, in whole but not in part, on any date in the event that moneys in the Debt Service Fund and the Debt Service Reserve Fund are sufficient to redeem all of the Bonds then Outstanding at a redemption price of 100% of the principal amount of the Bonds Outstanding, together with accrued interest thereon to the date fixed for redemption. Selection of Bonds to be Redeemed. Bonds may be redeemed only in the principal amount of minimum Authorized Denominations. No portion of a Bond may be redeemed that would result in a Bond which is smaller than the permitted minimum Authorized Denomination. * Preliminary, subject to change. 10

15 Notice of Call for Redemption. Notice of any redemption, other than mandatory sinking fund redemption, is to be given by the Trustee on behalf of the City by mailing the redemption notice by first class mail at least thirty (30) days and not more than sixty (60) days prior to the Redemption Date to each Bondowner of the Bond or Bonds to be redeemed at the address shown on the Bond Register. The failure of any Bondowner to receive notice given as provided in the Indenture or any defect contained in such notice, 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 Bondowner receives such notice. Book-Entry-Only System The following information concerning The Depository Trust Company ( DTC ), New York, New York and DTC s book-entry system has been obtained from DTC. The City takes no responsibility as to the accuracy or completeness thereof, and neither the Indirect Participants nor the Beneficial Owners should rely on the following information with respect to such matters, but should instead confirm the same with DTC or the Direct Participants, as the case may be. There can be no assurance that DTC will abide by its procedures or that such procedures will not be changed from time to time. General. Ownership interests in the Bonds will be available to purchasers only through a book-entry-only system (the Book-Entry-Only System ) maintained by DTC. The Depository Trust Company ( DTC ), New York, New York, which will act as securities depository for the Bonds. Initially, the Bonds will be issued as one fully-registered Bond for each maturity, registered in the name of Cede & Co. (DTC s partnership nominee), and will be deposited with DTC. The following discussion will not apply to any Bonds issued in certificate form due to the discontinuance of the DTC Book-Entry-Only System, as described below. So long as Cede & Co., as nominee of DTC, is the registered owner of the Bonds, the Beneficial Owners of the Bonds will not receive or have the right to receive physical delivery of the Bonds, and references herein to the Bondholders or registered owners of the Bonds shall mean Cede & Co. and shall not mean the Beneficial Owners of the Bonds. DTC and its Participants. DTC, the world s largest depository, is a limited-purpose trust company organized under the New York Banking Law, a banking organization within the meaning of the New York Banking Law, a member of the Federal Reserve System, a clearing corporation within the meaning of the New York Uniform Commercial Code, and a clearing agency registered pursuant to the provisions of Section 17A of the Securities Exchange Act of DTC holds and provides asset servicing for over 2.2 million issues of U.S. and non-u.s. equity, corporate and municipal debt issues, and money market instruments from over 100 countries that DTC s participants ( Direct Participants ) deposit with DTC. DTC also facilitates the post-trade settlement among Direct Participants of sales and other securities transactions in deposited securities through electronic computerized book-entry transfers and pledges between Direct Participants accounts. This eliminates the need for physical movement of securities certificates. Direct Participants include both U.S. and non-u.s. securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation ( DTCC ). DTCC, in turn, is owned by a number of Direct Participants of DTC and Members of the National Securities Clearing Corporation, Fixed Income Clearing Corporation, and Emerging Markets Clearing Corporation (NSCC, FICC, and EMCC, also subsidiaries of DTCC), as well as by the New York Stock Exchange, Inc., the American Stock Exchange LLC, and the National Association of Securities Dealers, Inc. Access to the DTC system is also available to others such as both U.S. and non-u.s. securities brokers and dealers, banks, trust companies, and clearing corporations that clear through or maintain a custodial relationship with a Direct 11

16 Participant, either directly or indirectly ( Indirect Participants ). DTC has Standard & Poor s highest rating: AAA. The DTC Rules applicable to its Participants are on file with the Securities and Exchange Commission. More information about DTC can be found at and Purchase of Ownership Interests. Purchases of the Bonds under the DTC system must be made by or through Direct Participants, which will receive a credit for the Bonds on DTC s records. The ownership interest of each actual purchaser of each Bond ( Beneficial Owner ) is in turn to be recorded on the Direct and Indirect Participants records. Beneficial Owners will not receive written confirmation from DTC of their purchase. Beneficial Owners are, however, expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into the transaction. Transfers of ownership interests in the Bonds are to be accomplished by entries made on the books of Direct and Indirect Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests in the Bonds, except in the event that use of the book-entry system for the Bonds is discontinued. Transfers. To facilitate subsequent transfers, all Bonds deposited by Direct Participants with DTC are registered in the name of DTC s partnership nominee, Cede & Co. or such other name as may be requested by an authorized representative of DTC. The deposit of the Bonds with DTC and their registration in the name of Cede & Co. or such other nominee do not effect any change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the Bonds; DTC s records reflect only the identity of the Direct Participants to whose accounts such Bonds are credited, which may or may not be the Beneficial Owners. The Direct and Indirect Participants will remain responsible for keeping account of their holdings on behalf of their customers. Notices. Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time. Beneficial Owners of the Bonds may wish to take certain steps to augment the transmission to them of notices of significant events with respect to the Bonds, such as redemptions, tenders, defaults, and proposed amendments to the Bond documents. For example, Beneficial Owners of the Bonds may wish to ascertain that the nominee holding the Bonds for their benefit has agreed to obtain and transmit notices to Beneficial Owners. In the alternative, Beneficial Owners may wish to provide their names and addresses to the registrar and request that copies of notices be provided directly to them. Redemption notices shall be sent to DTC. If less than all of the Bonds within a maturity are being redeemed, DTC s practice is to determine by lot the amount of the interest of each Direct Participant in such maturity to be redeemed. Voting. Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote with respect to the Bonds unless authorized by a Direct Participant in accordance with DTC s Procedures. Under its usual procedures, DTC mails an Omnibus Proxy to the City as soon as possible after the record date. The Omnibus Proxy assigns Cede & Co. s consenting or voting rights to those Direct Participants to whose accounts the Bonds are credited on the record date (identified in a listing attached to the Omnibus Proxy). Payments of Principal and Interest. Payment of principal or redemption price of and interest on the Bonds will be made to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC. DTC s practice is to credit Direct Participants accounts, upon DTC s receipt of funds and corresponding detail information from the City or the Paying Agent, on the payment date in 12

17 accordance with their respective holdings shown on DTC s records. Payments by Participants to Beneficial Owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in street name, and will be the responsibility of such Participant and not of DTC, its nominee, the Paying Agent, or the City, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of principal or redemption price of and interest on the Bonds to Cede & Co. (or such other nominee as may be requested by an authorized representative of DTC) is the responsibility of the City or the Paying Agent. Disbursement of such payments to Direct Participants will be the responsibility of DTC, and disbursement of such payments to the Beneficial Owners will be the responsibility of Direct and Indirect Participants. Discontinuation of Book Entry System. DTC may discontinue providing its services as securities depository with respect to the Bonds at any time by giving reasonable notice to the City and the Paying Agent. Under such circumstances, in the event that a successor securities depository is not obtained, Bond certificates are required to be printed and delivered. The City may decide to discontinue use of the system of book-entry-only transfers through DTC (or a successor securities depository). In that event, Bond certificates will be printed, registered in the name of DTC s partnership nominee, Cede & Co. (or such other name as may be requested by an authorized representative of DTC), and delivered to DTC (or a successor securities depository), to be held by it as securities depository for Direct Participants. If, however, the system of book-entry-only transfers has been discontinued and a Direct Participant has elected to withdraw its Bonds from DTC (or such successor securities depository), Bond certificates may be delivered and printed. None of the City, the Underwriter or the Paying Agent will have any responsibility or obligations to any Direct Participants or Indirect Participants or the persons for whom they act with respect to (i) the accuracy of any records maintained by DTC or any such Direct Participant or Indirect Participant; (ii) the payment by any Participant of any amount due to any Beneficial Owner in respect of the principal of, premium, if any, or interest on the Bonds; (iii) the delivery by any such Direct Participant or Indirect Participant of any notice to any Beneficial Owner that is required or permitted under the terms of the Ordinance to be given to Bondholders; (iv) the selection of the Beneficial Owners to receive payment in the event of any partial redemption of the Bonds; or (v) any consent given or other action taken by DTC as Bondholder. Debt Service Reserve Fund The Indenture provides for the establishment of a Debt Service Reserve Fund for the Bonds. Upon the issuance of the Bonds, proceeds of the Bonds are to be deposited into the Debt Service Reserve Fund in a sum equal to $1,680,000 *. See the Section captioned ESTIMATED SOURCES AND USES OF FUNDS. The amount on deposit in the Debt Service Reserve Fund will be increased to a maximum of $2,520,000 solely from Excess TDD Sales Tax Revenues in the TDD Sales Tax Revenue Fund, if available. In the event that money on deposit in the Debt Service Reserve Fund is withdrawn to pay principal of or interest on the Bonds, the Trustee will be required to replenish the Debt Service Reserve Fund to the Debt Service Reserve Requirement as and to the extent it receives the TDD Sales Tax Revenues. See APPENDIX B FORM OF TRUST INDENTURE. * Preliminary, subject to change. 13

18 SECURITY FOR THE BONDS TDD SALES TAX Security for the Bonds The Bonds are special, limited obligations of the City. Neither the Bonds nor the interest thereon constitute a general obligation or indebtedness of, nor is the payment thereof guaranteed by, the City, the Transportation District, or any governmental subdivision, agency, or instrumentality. The Bonds are not payable from general tax revenues. The Bonds and the interest thereon are payable solely and only from the TDD Sales Tax Revenues, and not from any other funds or source (except to the extent paid out of the moneys attributable to Bond proceeds and the investment thereof). The future ability of the Transportation District to generate TDD Sales Tax Revenues is subject to conditions which may change in the future to an extent that presently cannot be determined. Thus, no assurance can be given that TDD Sales Tax Revenues will be assessed and collected by the City in amounts sufficient to pay the principal of and interest on the Bonds as they become due. TDD Sales Tax Revenues The City has imposed a 0.5% TDD Sales Tax for the purpose of financing and refinancing certain transportation projects in the Transportation District, including the Transportation Project. Oak Park Mall, a retail shopping center, is wholly located within the boundaries of the Transportation District. See THE SHOPPING CENTER herein. The TDD Sales Tax will be collected by the Kansas Department of Revenue and forwarded to the City on a monthly basis. The City will then forward the TDD Sales Tax to the Trustee. ESTIMATED SOURCES & USES OF FUNDS The proceeds derived from the sale of the Bonds and investment earnings thereon are expected to be used to pay the costs of financing the Transportation Project, funding a debt service reserve fund and paying certain Costs of Issuance with respect to the Bonds. The following sets forth the estimated sources and uses of funds relating to the proceeds of the Bonds: Sources of Funds: Principal Amount of the Bonds $ TDD Sales Tax Revenues remitted to the City Accrued Interest Total Sources of Funds $ Uses of Funds: Deposit to Debt Service Reserve Fund $ Deposit of TDD Sales Tax Revenues to Project Fund Deposit to Project Fund Underwriting Discount Costs of Issuance Total Uses of Funds $ DEBT SERVICE SCHEDULE AND ESTIMATED SALES TAXES The following table sets forth the annual amounts required to pay principal, including mandatory sinking fund redemption, and interest on the Bonds during each year ending December

19 Year Debt Service Total Debt Service Estimated Sales Tax Payment Receipts DSRF Earnings 1 Total Revenues Net Coverage 2 Total 1 Based on _% Interest Rate. 2 x coverage. BONDOWNERS RISK Certain risks could affect payments to be made with respect to the Bonds. This discussion of risk factors is not, and is not intended to be, exhaustive and should be read in connection with all other parts of this Official Statement and should not be considered to be a complete description of all the risks that could affect the payment of Debt Service on the Bonds. Each prospective investor should evaluate the merits and risks of the investment, including making an independent evaluation of all information presented in this Official Statement in order to make an informed investment decision. Potential purchasers of the Bonds should carefully analyze the information contained in this Official Statement and the documents attached to the Official Statement as APPENDIX A through APPENDIX F. Particular attention should be given to the significant risk factors described below which, among others, could affect the payment of Debt Service and market price on the Bonds. Suitability of Investment An investment in the Bonds involves a substantial degree of risk. The interest rate borne by the Bonds (as compared to prevailing interest rates on more secure tax exempt bonds such as those which constitute general obligations of fiscally sound municipalities) is intended to compensate the investor for assuming this element of risk. Furthermore, the tax exempt feature of the Bonds is obviously of more value to high tax bracket investors than to investors who are in low tax brackets, and so the value of the interest compensation to any particular investor will vary with his or her applicable individual tax rate. Each prospective investor should carefully examine this Official Statement, including the Appendices hereto, and consider their own financial condition in order to make a judgment as to their ability to bear 15

20 the economic risk of such an investment, and determine whether or not the Bonds are an appropriate investment. Special Obligations The Bonds are special, limited obligations of the City and are payable solely from, and security as to the payment of principal and interest by the TDD Sales Tax Revenues and other moneys held by the Trustee pursuant to the Indenture. The Bonds do not constitute a general obligation or indebtedness of, nor is the payment thereof guaranteed by the City nor do they constitute an indebtedness of the State of Kansas or any other political subdivision thereof within the meaning of any constitutional, statutory or charter debt limitation or restriction. See THE BONDS Security herein. Lack of Transferability The Bonds will not be registered under the Securities Act of 1933, as amended, or any state securities law. The Bonds are not listed on any exchange and no market of any type may exist for the Bonds. THEREFORE, INVESTORS MUST BE PREPARED TO MAINTAIN AND HOLD THE BONDS FOR AN INDEFINITE PERIOD OF TIME AND TO BEAR THE ECONOMIC RISK THEREOF. Limited Sources of Debt Service and Factors Affecting TDD Sales Tax Revenues The Bonds are payable solely from the TDD Sales Tax Revenues. While the future ability of the City to meet its obligations under the Indenture is based upon assumptions and business judgments which the City believes are reasonable and appropriate, they are subject to conditions which may change in the future to an extent that presently cannot be determined. Thus, no assurance can be given that TDD Sales Tax Revenues will be realized by the City in amounts sufficient to pay the principal of and interest on the Bonds as they become due. The amount of funds available for servicing the Bonds is directly related to the amount of sales taxes generated by the businesses operated in the Transportation District. There can be no assurance that the amount of these funds will, in fact, be attained or maintained during the term of the Bonds due to any number of factors, including adverse changes in general or local economic or market conditions. Factors affecting the amount of available funds could include, for example, changes in the amount of sales taxes collected, whether caused by legislative changes, or the actions of the tenants or subsequent owners of the Oak Park Mall, such as their not meeting expected retail sales targets or otherwise suffering financial difficulties. The TDD Sales Tax Revenues generated depend in part on the general economic conditions and employment in the City and the surrounding area. Adverse economic conditions may have a negative effect on the amount of retail sales in the City and, therefore, the amount of TDD Sales Tax Revenues the City can collect to pay debt service on the Bonds. Limited Collateral: No Pledge of any Property or the Transportation Project Neither the Oak Park Mall nor the Transportation Project is pledged to the Trustee under the Indenture. Therefore, in the event of a default, the Trustee will not have the ability to sell the Oak Park Mall nor the Transportation Project to retire the Bonds nor look to the Developer or to any other asset or collateral to secure repayment of the Bonds. 16

21 Debt Service Reserve Fund At the time of issuance of the Bonds, the Debt Service Reserve Fund will be funded with proceeds of the Bonds in the amount of $1,680,000 * (the Debt Service Reserve Requirement). See APPENDIX B FORM OF TRUST INDENTURE. Excess TDD Sales Tax Revenues, if available, will be used to fund a portion of the Debt Service Reserve Requirement. See THE BONDS Debt Service Revenue Fund herein. Moneys in the Debt Service Reserve Fund may be invested in Permitted Investments. Moneys, including such Permitted Investments, may be applied by the City to prevent default in payment of the principal of and interest on the Bonds in accordance with the Indenture in the event funds on hand in the Debt Service Fund are insufficient to provide funds for payments due on any Payment Date. In the event the City is required to sell such Permitted Investments for such purpose, the price realized upon such sale may not equal the Debt Service Reserve Requirement. There can be no assurance that the amounts on deposit in the Debt Service Reserve Fund will be available if needed for payment of the Bonds in the full amount of the Debt Service Reserve Requirement because (1) of fluctuations in the market value of the securities deposited therein and/or (2) if funds are transferred to the Debt Service Fund, sufficient revenues may not be available in the Revenue Fund to replenish the Debt Service Reserve Fund to the Debt Service Reserve Requirement. No Redemption of Bonds in the Event of Taxability The Bonds are not subject to redemption prior to maturity upon the occurrence of an event which has the effect of rendering interest on the Bonds includable in the gross income of the owners of the Bonds for purposes of federal income taxation. No provision is made in the Indenture for any increase or other adjustment in the rate of interest payable on the Bonds in the event of such an occurrence. Amendments, Changes and Modifications to the Principal Financing Documents The principal financing documents can be amended, changed or modified with the written consent of less than 100% of the Bondowners (and in some cases without notice to or consent of any Bondowners), all as more fully described in APPENDIX B FORM OF TRUST INDENTURE. Taxation of Interest on the Bonds An opinion of Bond Counsel will be obtained to the effect that interest earned on the Bonds is excludable from gross income for federal income tax purposes under current provisions of the Code and applicable rulings and regulations under the Code; however, an application for a ruling has not been made and an opinion of counsel is not binding upon the Internal Revenue Service. There can be no assurance that the present provisions of the Code, or the rules and regulations thereunder, will not be adversely amended or modified, thereby rendering the interest earned on the Bonds includable in gross income for federal income tax purposes. The City has covenanted in the Indenture and in other documents and certificates to be delivered in connection with the issuance of the Bonds to comply with the provisions of the Code, including those which require the City to take or omit to take certain actions after the issuance of the Bonds. Because the existence and continuation of the excludability of the interest on the Bonds depends upon events occurring after the date of issuance of the Bonds, the opinion of Bond Counsel described under LEGAL MATTERS assumes the compliance by the City with the provisions of the Code described above and the regulations relating thereto. No opinion is expressed by Bond Counsel with * Preliminary, subject to change. 17

22 respect to the excludability of the interest on the Bonds in the event of noncompliance with such provisions. The failure of the City to comply with the provisions described above may cause the interest on the Bonds to become includable in gross income as of the date of issuance. Legal Matters; Future Changes in the Law Various state and federal laws, regulations and constitutional provisions apply to the obligations created by the Bonds. There is no assurance that there will not be any change in, interpretation of, or addition to such applicable laws, provisions and regulations which would have a material effect, either directly or indirectly, on the City or the taxing authority of the City. There can be no assurance that the State of Kansas will not pass legislation limiting the application of the TDD Sales Tax in the future. In that event, the effect of the legislation on the future TDD Sales Tax Revenues derived from the TDD Sales Tax is unknown. There can be no assurance that the Kansas state legislature will not enact legislation that will amend the applicable state transportation development district financing laws or other laws or the Constitution of the State of Kansas resulting in a reduction of tax revenues, and consequently, an adverse effect on the revenues otherwise available to pay the debt service on the Bonds. Limitations on Remedies Available to Owners of Bonds The rights and remedies of the owners of Bonds, the enforceability thereof, and the obligations incurred by the City in issuing the Bonds, are subject to the following: the federal Bankruptcy Code and applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or affecting the enforcement of creditors rights generally, now or hereafter in effect; usual equity principles which may limit the specific enforcement under state law of certain remedies; the exercise by the United States of America of the power delegated to it by the United States Constitution; and the reasonable and necessary exercise, in certain unusual situations, of the police power inherent in the State of Kansas and its governmental subdivisions in the interest of serving a legitimate and significant public purpose. Bankruptcy proceedings, or the exercise of powers by the federal or state government, if initiated, could subject the owners of the Bonds to judicial discretion and interpretation of their rights in bankruptcy and otherwise, and consequently may involve risks of delay, limitation or modification of their rights. Exemption from Registration of the Bonds The Bonds may be sold by the owners thereof only in compliance with the registration provisions, or certain exemptions therefrom, of the Securities Act of 1933 and applicable state securities laws (which may be prohibitively expensive if registration is required and may not be possible in any event). In some states, specific conditions must be met or approval of the state s securities administrator is required in order for the Bonds to qualify for an exemption from registration. In reliance on the availability of the exemption from registration requirements of tax exempt bonds, the bonds have not been registered with the Securities and Exchange Commission, the Securities Commissioner of the State of Kansas, or any other state securities administrative authority. If the interest on the Bonds for any reason becomes taxable, the exemption from registration on which the initial sale is premised may be unavailable to owners of the Bonds who desire to dispose of their Bonds subsequent to a determination of such taxability; and the burdens and associated cost of registration under applicable securities laws may be prohibitive and may require a holder to retain the Bonds indefinitely. 18

23 Market for the Bonds Secondary Market. There is no assurance that a secondary market will develop for the purchase and sale of the Bonds. It is the present practice of the Underwriter, however, to make a secondary market as dealers in issues of municipal bonds which the Underwriter distributes. The Underwriter intends to continue this practice with respect to the Bonds, but is not obligated to do so. Prices of bonds traded in the secondary market, though, are subject to adjustment upward and downward in response to changes in the credit markets. From time to time it may be necessary for the Underwriter to suspend indefinitely secondary market trading in the Bonds as a result of the financial condition or market position of the Underwriter, prevailing market conditions, lack of adequate current financial information about the City, or a material adverse change in the financial condition of the City, whether or not the Bonds are in default as to principal and interest payments, and other factors which in the opinion of the Underwriter may give rise to uncertainty concerning prudent secondary market practices. General Economic Risks The ability to make payments on the Bonds is dependent upon the economic strength and vitality of the retail stores located within the Transportation District. The Transportation District is subject to all of the risks generally associated with retail shopping centers. Retail shopping centers may be adversely affected by changes in general economic conditions, fluctuations in the real estate market and interest rates, unexpected increases in Transportation Project Costs and by other similar factors. In addition, if there is a decline in the general economy of the area, the owner of the real property or its tenants may be less able or less willing to make timely payments of sales tax revenues to the City from the Transportation District. Financial Feasibility of the Transportation District The financial feasibility of the Oak Park Mall and the Transportation District s generation of sufficient TDD Sales Tax Revenues to pay the Bonds is dependent upon economic and demographic factors. There is no obligation for the stores to remain open and generate TDD Sales Tax Revenues. The Revenue Projections include assumptions relating to the Oak Park Mall and other stores and certain other significant assumptions. Some assumed events and circumstances may not materialize and unanticipated events and circumstances will occur subsequent to the date hereof. Therefore, the actual results achieved during the forecast period may vary from the forecast and the variations may be material. Uninsured Losses. The Oak Park Mall is required to maintain comprehensive insurance, including fire, liability and extended coverage on its stores. However, there are certain types of losses (generally of a catastrophic nature) which may be either uninsurable or not economically insurable. Such excluded risks generally include war, earthquakes and floods, as well as liability for any discrimination, sexual harassment and/or civil rights violations, in addition to awards for punitive damages. If an event occurs which is not be covered by insurance, or if a loss occurs for which no coverage was in effect because the Oak Park Mall was without funds for premium payments, the Oak Park Mall might suffer a loss that could suffer an interruption or cessation of business, resulting in a reduction or cessation of sales tax generating revenues. Competition. The Oak Park Mall faces competition for sales (which, in turn, generate sales tax revenues) from other shopping centers, strip centers, and freestanding retailers located in the greater Kansas City metropolitan area. The Developer has identified Town Center Plaza and the Country Club Plaza as competitors for the Oak Park Mall. In addition if the Corbin Park Shopping Center located within the City is completed it may also become a competitor. 19

24 Environmental Law Compliance The Project is subject to all applicable local, state and federal environmental laws, statutes, ordinances, rules and regulations (collectively, Environmental Laws ). While the City is not aware of any significant environmental concerns with respect to the Transportation Project, the Transportation Project may become or be alleged to be subject to Environmental Laws not currently believed to be applicable to the Transportation Project. In such event, there is no guarantee that the costs of compliance or determination of actual liability will not have a materially adverse effect on the completion of the Transportation Project and the City s ability to pay the principal of and interest on the Bonds from TDD Sales Tax Revenues. Construction Risks Construction of the Transportation Project may be impeded by events beyond the control of the City and the Developer. Such events could include strikes in any industry, labor shortages, or shortages or unavailability of materials, bad weather, unanticipated environmental conditions, unforeseen site problems, nonperformance by the construction contractor, the trade contractors or their subcontractors or suppliers, acts of God and other events related to new construction, any of which may adversely affect the timely construction of the Transportation Project. Any such construction delay could adversely affect the anticipated schedule and amount of TDD Sales Tax Revenues. Factors Affecting TDD Sales Tax Revenues TDD Sales Tax Revenues are contingent and may be adversely affected by a variety of factors, including without limitation economic conditions within the Transportation District and competition from other retail businesses, rental rates and occupancy rates in private developments in the area, local unemployment, availability of transportation, neighborhood changes, crime levels in the area, vandalism and rising operating costs, interruption or termination of operation of the stores as a result of fire, natural disaster, strikes or similar events, among many other factors. As a result of all of the above factors, it is difficult to predict with certainty the expected amount of TDD Sales Tax Revenues which will be available to pay the principal of and interest on the Bonds. The retail sales industry is highly competitive. Existing retail businesses outside of the Transportation District and the future development of retail businesses outside of the Transportation District, which are competitive with retail businesses in the Transportation District may exist or may be developed after the date of this Official Statement. In addition to the foregoing, the partial or complete destruction of the stores, as a result of fire, natural disaster or similar casualty event or the temporary or permanent closing of stores would adversely affect the TDD Sales Tax Revenues and thereby adversely affect the TDD Sales Tax Revenues available to pay the Bonds and the interest thereon. Any insurance maintained by the owner of or the tenants in the Transportation District for such casualty or business interruption would not include coverage for TDD Sales Tax Revenues that otherwise would be generated by the establishment. Revenue Projections The forecasted annual TDD Sales Tax Revenues shown in the Revenue Projections attached as APPENDIX A hereto are based on certain assumptions concerning facts and events over which the Transportation District and the Developer will have no control. No representation or warranty is or can be made about the amount or timing of any future income, loss, increased assessment or revenues, or that actual results will approach the Revenue Projections. The City makes no representation or warranty (express or implied) as to the accuracy or completeness of any financial, technical or statistical data or any 20

25 estimates, projections, assumptions or expressions of opinion set forth in the Revenue Projections. The Revenue Projections reflect all projected receipts of the TDD Sales Tax Revenues. THE FOREGOING STATEMENTS REGARDING BONDOWNERS RISKS SHOULD NOT BE CONSIDERED AS A COMPLETE DESCRIPTION OF ALL RISKS TO BE CONSIDERED IN A DECISION TO PURCHASE THE BONDS. Prospective purchasers of the Bonds should analyze carefully the information contained in this Official Statement and additional information in the form of the complete documents summarized herein, copies of which are available and may be obtained from the Underwriter. Overview THE SHOPPING CENTER Oak Park Mall contains approximately 1,515,000 square feet of space and parking for 6,700 cars. The Shopping Center is located at the intersection of Quivira Road and 95 th Street in the City of Overland Park, Kansas. Further information regarding Oak Park Mall is available at The Shopping Center Owner The Shopping Center is owned by Oak Park Mall, LLC, a Delaware limited liability company (the Shopping Center Owner ), pursuant to a Special Warranty Deed dated October 31, 2005, from Oak Park Investment, L.P., a Delaware limited partnership, to the Shopping Center Owner, filed of record on November 18, 2005, in Book , Page , in the Official Records of the Register s Office for Johnson County, Kansas ( Register s Office ). CBL Holdings I, Inc., a Delaware corporation, is the sole general partner of CBL & Associates Limited Partnership, a Delaware limited partnership, which is the Chief Manager of the Shopping Center Owner. CBL & Associates Limited Partnership and CBL & Associates Management, Inc., a Delaware corporation, are the members of Oak Park Holding I, LLC, a Kansas limited liability company. Oak Park Holding I, LLC and Oak Park Holding II, LLC, a Kansas limited liability company, are the members of Oak Park Member, LLC, a Kansas limited liability company, which is the sole member of the Shopping Center Owner. Ground Lease The Shopping Center Owner is also the current landlord and tenant of the Shopping Center under that certain Ground Lease dated February 23, 1970, by J. C. Nichols Company, as landlord, and P-K Center, Inc., as tenant, as amended, assigned, and subsequently restated in its entirety by Amendment and Restatement of Lease dated December 18, 1992, by and between Challenger, Inc., as landlord, and Oak Park Investment, L.P. ( Oak Park LP ), as tenant (the Ground Lease ). The Ground Lease is evidenced by that Memorandum of Lease dated December 18, 1992, filed of record on December 28, 1992, as Document No , in Volume 3808, Page 728, in the Register s Office, and amended by Amendment of Lease and Memorandum dated October 5, 1995, filed of record as Document No , in Volume 4755, Page 905, in the Register s Office, and Second Amendment of Lease and Memorandum dated October 13, 1997, filed of record as Document No , in Volume 5440, Page 261, in the Register s Office. Oak Park LP acquired fee title to the Shopping Center from Challenger, Inc. by Special Warranty Deed dated August 8, 2003, filed of record in Book 9361, Page 875, in the Register s Office, at which time Oak Park LP elected to have said lease continue in existence and not allow the leasehold estate thereunder to merge with its fee title, as evidenced by Statement of Intent Regarding Ground Lease dated August 8, 2003, filed of record in Book 9361, Page 903, in the Register s Office. Shopping Center Owner assumed Oak Park LP s right, title and interest as lessor and lessee in 21

26 and to the Ground Lease by that Assignment and Assumption of Ground Lease dated November 9, 2005, filed of record in Book , Page , in the Register s Office. Manager The Mall is managed by CBL & Associates Management, Inc., an affiliate of the Shopping Center Owner (the Manager ). Shopping Center Owner and Manager entered into a Property Management Agreement effective as of November 16, 2005 ( Management Agreement ). Unless the Shopping Center Owner and the Manager otherwise expressly agree to the contrary in writing, the Manager shall be entitled to receive a management fee equal to four percent (4%) of all gross revenues generated to the Shopping Center Owner by the Shopping Center. Subject to early termination as hereinafter described, the Management Agreement has an initial term ending on December 31, 2055, and thereafter shall automatically renew from year to year for additional one year terms unless either party has given written notice of said party s election not to renew and notice is received by the non terminating party at least sixty days prior to the conclusion of the initial or any renewal term. Operating Agreements The Shopping Center is governed by the following operating agreements and anchor leases: CORE Agreement. Shopping Center Owner assumed Oak Park LP s rights, obligations, title, and interest as Developer in and to the following documents by Assignment and Assumption of Operating Agreement dated November 9, 2005, filed of record on November 18, 2005, in Book , Page , in the Register s Office: 1. Construction, Operation and Reciprocal Easement Agreement dated as of May 20, 1974, by and among Oak Park Center Holding, Inc., Adcor Realty Corporation, R. H. Macy & Co., Inc., and Montgomery Ward Development Corporation, filed of record on June 28, 1974, in Volume 981, Page 170, in the Register s Office. 2. Amendment to Construction, Operation and Reciprocal Easement Agreement and Adoptive Agreement dated as of January 9, 1975, by and among Oak Park Center Holding, Inc., Adcor Realty Corporation, R. H. Macy & Co., Inc., Montgomery Ward Development Corporation, and J.C. Penney Properties, Inc., filed of record on February 11, 1975, in Volume 1015, Page 150, in the Register s Office. 3. Second Amendment to Construction, Operation and Reciprocal Easement Agreement dated as of July 27, 1976, by and among Oak Park Center Holding, Inc., Adcor Realty Corporation, Goodoak Associates, R. H. Macy & Co., Inc., Montgomery Ward Development Corporation, and J.C. Penney Properties, Inc., filed of record on August 30, 1976, in Volume 1145, Page 309, in the Register s Office. 4. Third Amendment to Construction, Operation and Reciprocal Easement Agreement dated as of February 13, 1986, by and among Oak Park Investment Company, Goodoak Associates, Oak Park Properties Corp., Montgomery Ward Development Corporation, J.C. Penney Properties, Inc. and Connecticut General Life Insurance Company, filed of recorded on June 19, 1987, in Volume 2611, Page 1, in the Register s Office. 5. Fourth Amendment to Construction, Operation and Reciprocal Easement Agreement effective as of January 1, 1993, by and among Oak Park Investment, L.P., Construction Developers, Incorporated, Montgomery Ward Development Corporation, J.C. 22

27 Penney Properties, Inc., and Dillard Department Stores, Inc., filed of record on January 14, 1994, in Volume 4217, Page 486, in the Register s Office. 6. Release of Street Right-of-Way from Construction, Operation and Reciprocal Easement Agreement dated as of September 19, 1996, among Oak Park Investment, L.P., Condev West, Inc. and Montgomery Ward Development Corporation, filed of record on October 1, 1996, in Volume 5003, Page 256, in the Register s Office. 7. Release of Street Right-of-Way from Construction, Operation and Reciprocal Easement Agreement dated as of September 10, 1996, by J.C. Penney Properties, Inc., filed of record on September 30, 1996, in Volume 5001, Page 202, in the Register s Office. 8. Fifth Amendment to Construction, Operation and Reciprocal Easement Agreement dated as of December 19, 1996, by and among Oak Park Investment, L.P., Condev West, Inc., Montgomery Ward Development Corporation, J.C. Penney Properties, Inc. and Nordstrom, Inc., filed of record on December 27, 1996, in Volume 5070, Page 600, in the Register s Office. 9. Release of Street Right-of-Way from Construction, Operation and Reciprocal Easement Agreement filed of record in Book , Page , as amended in Book , Page , in the Register s Office. Anchor Leases - Shopping Center Owner assumed Oak Park LP s rights, obligations, title, and interest as Landlord and assumed the following department store ground leases by an unrecorded Assignment and Assumption of Tenant Leases dated as of November 9, 2005: Competition 1. Dillard North Parcel (approximately 225,947 square feet of retailer-owned gross leaseable area). 2. Dillard South Parcel (approximately 200,523 square feet of retailer-owned gross leasable area). 3. Macy s Parcel (approximately 181,373 square feet of retailer-owned gross leaseable area). 4. Nordstrom Parcel (approximately 200,000 square feet of retailer-owned gross leaseable area). 5. J.C. Penney Parcel (approximately 201,097 square feet of retailer-owned gross leaseable area). The Shopping Center Owner has identified the following shopping centers as competitors for Oak Park Mall: Shopping Center Town Center Plaza County Club Plaza Distance from Oak Park Mall (by car) 7.3 Miles 11.6 Miles 23

28 TENANTS; OCCUPANTS Tenants The following is a representative list of the tenants at the Shopping Center as of October 30, 2009, all of which are located within the Transportation District. The leases typically provide that tenants shall pay their proportionate share of real estate taxes and assessments levied against the leased premises pursuant to a formula set forth in each lease (typically based on a ratio of the floor area of the leased premises versus the floor area of the shopping center). The leases also typically require the tenants to maintain varying levels of public liability and property damage insurance although selfinsurance is permitted under certain circumstances. Certain tenants may assign their interests in their leases without the consent of the Shopping Center Owner. A more complete list of tenants is included in APPENDIX A RETAIL SALES TAX STUDY OAK PARK MALL TRANSPORTATION DEVELOPMENT DISTRICT. Macy s J. C. Penney Nordstrom, Inc. Abercrombie & Fitch Co. Ann Taylor, Inc. Barnes & Noble, Inc. Chick-Fil-A, Inc. Dillards, Inc. Foot Locker, Inc. The Gap Inc. Hallmark Cards, Inc. Limited Brands, LLC New York & Company, Inc. Zale Corporation UNDERWRITING Oppenheimer & Co. Inc. (the Underwriter ), pursuant to a purchase agreement among the Underwriter, the City and the Developer, has agreed, subject to certain conditions, to purchase the Bonds at the aggregate purchase price of $ (which takes into account an underwriter s discount of $ and [an aggregate original issue discount of $ )] plus accrued interest to the date of delivery. The obligation of the Underwriter to purchase the Bonds is subject to certain terms and conditions set forth in the purchase agreement between the Underwriter, the City and the Developer. The Bonds may be sold to certain dealers, banks and others at prices lower than the initial offering prices, and such initial offering prices may be changed, from time to time by the Underwriter. Under the purchase agreement, the Developer has agreed to indemnify the Underwriter under certain circumstances against certain liabilities, including liabilities under federal securities laws. The City NO LITIGATION At the time of delivery of and payment for the Bonds, the City will certify that there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body, pending with respect to which the City has been served with process or is otherwise aware, or, to the knowledge of the officer of the City executing such certificate, threatened against the City affecting the existence of the City or the titles of its officers to their respective offices or seeking to restrain or to enjoin the sale or delivery of the Bonds, the application of the proceeds thereof in accordance with the Ordinance and/or the Indenture, or the collection or application of the taxes provided for the payment of the Bonds, or in any way contesting or affecting the validity or enforceability of the Bonds, the Ordinance, the Indenture, the agreements entered into by the City, or any action of the City contemplated by any of the said documents, or the collection or application of any tax receipts provided for the payment of the Bonds, or in any way contesting the completeness or accuracy of the Ordinance, the Indenture or any amendments or supplements hereto, or contesting the powers of the City contemplated by any of said documents, nor, to the knowledge of the officer of the City executing such certificate, is there any basis therefore. 24

29 The Developer At the time of delivery of and payment for the Bonds, the Developer will certify that there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, pending or threatened by or against the Developer: (i) in any way questioning the due formation and valid existence of the Developer or (ii) in any way questioning or affecting the validity of any agreements entered into by the Developer or the consummation of the transactions contemplated thereby. RATING Standard & Poor s has assigned its municipal bond rating of BBB to the Bonds. Such rating reflects only the views of such rating agency, and an explanation of the significance of such rating may be obtained therefrom. There is no assurance that the rating will remain in effect for any given period of time or that it will not be revised, either downward or upward, or withdrawn entirely, by said rating agency if, in its judgment, circumstances warrant. Any such downward revisions or withdrawal of the ratings may have an adverse affect on the market price of the Bonds. CERTAIN LEGAL MATTERS All legal matters related to the authorization, issuance, sale and delivery of the Bonds are subject to the approval of Kutak Rock LLP, Kansas City, Missouri, Bond Counsel. See APPENDIX D hereto for the proposed form of opinion of Bond Counsel. Certain legal matters will be passed upon for the City by Robert J. Watson, City Attorney, and for the Underwriter by its counsel, Bryan Cave LLP. The legal fees of Bond Counsel and Underwriter s Counsel are contingent upon the issuance of the Bonds. The various legal opinions to be delivered concurrently with the delivery of the Bonds will be qualified as to the enforceability of the various legal instruments by limitations imposed by the valid exercise of the constitutional powers of the State of Kansas and the United States of America and bankruptcy, reorganization, insolvency, or other similar laws affecting the rights of creditors generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). The remedies available to the bondholders upon a default under the Indenture are in many respects dependent upon judicial actions which are often subject to discretion and delay. Under existing constitutional and statutory law and judicial decisions, including specifically Title 11 of the United States Code (the federal bankruptcy code), the remedies provided in the Indenture may not be readily available or may be limited. The various legal opinions to be delivered concurrently with the delivery of the Bonds express the professional judgment of the attorneys rendering the opinions on the legal issues explicitly addressed therein. By rendering a legal opinion, the opinion giver does not become an insurer or guarantor of that expression of professional judgment, of the transaction opined upon, or of the future performance of parties to such transaction. Nor does the rendering of an opinion guarantee the outcome of any legal dispute that may arise out of the transaction. CONTINUING DISCLOSURE The City and the Developer have covenanted, for the benefit of the Bondowners, to provide certain financial information and operating data relating to the City, the Developer and the TDD Sales Tax Revenues, and to provide notices of the occurrence of certain enumerated events relating to the City 25

30 and the Developer, if material. The specific nature of the financial information to be provided and the information contained in such notices of material events is set forth in APPENDIX E FORM OF CONTINUING DISCLOSURE AGREEMENTS. These covenants have been made in order to assist the Underwriter in complying with S.E.C. Rule 15c2-12(b)(5) (the Rule ). The City has never failed to comply in all material aspects with any previous disclosure covenants under the Rule. FINANCIAL ADVISOR The City has retained Public Financial Management of Minneapolis, Minnesota, as financial advisor (the Financial Advisor ) in connection with the issuance of the Bonds. In assisting with the preparation of the Official Statement, the Financial Advisor has relied upon City officials, and the Financial Advisor has not been engaged, nor has it undertaken, to independently verify the accuracy of such information. The Financial Advisor is not a public accounting firm and has not been engaged by the City to compile, review, examine, or audit any information in the Official Statement in accordance with accounting or audit standards. The Financial Advisor is an independent advisory firm and is not engaged in the business of underwriting, trading, or distributing municipal securities or other public securities. The Financial Advisor will not participate in the underwriting of the Bonds. Opinion of Bond Counsel TAX MATTERS Federal and Kansas Tax Exemption. In the opinion of Kutak Rock LLP, Bond Counsel, under existing law, the interest on the Bonds is excluded from gross income for federal income tax purposes and is exempt from income tax in the State. Bond Counsel is further of the opinion that interest on the Bonds is not a specific item of tax preference nor included in adjusted current earnings for purposes of the federal alternative minimum tax. Because the City has properly designated the Bonds as a qualified tax-exempt obligation under Section 265(b)(3) of the Code, in the case of financial institutions as defined in Section 265(b)(5) of the Code owning the Bonds, a deduction is allowed for 80% of that portion of such institutions interest expense allocable to interest on the Bonds. The opinions set forth in this paragraph are subject to the condition that the City comply with all requirements of the Internal Revenue Code of 1986, as amended (the Code ), that must be satisfied subsequent to the issuance of the Bonds in order that interest thereon be, or continue to be, excluded from gross income for federal income tax purposes. The City has covenanted to comply with each such requirement. Failure to comply with certain of such requirements may cause the inclusion of interest on the Bonds in gross income for federal income tax purposes retroactive to the date of issuance of the Bonds. Bond Counsel expresses no opinion regarding other federal or State tax consequences arising with respect to the Bonds. The accrual or receipt of interest on the Bonds may otherwise affect the federal (and, in some cases, state and local) income tax liability of the owners of the Bonds. The extent of these other tax consequences will depend upon such owner s particular tax status and other items of income or deduction. Bond Counsel has expressed no opinion regarding any such consequences. Purchasers of the Bonds, particularly purchasers that are corporations (including S corporations and foreign corporations operating branches in the United States), property or casualty insurance companies, banks, thrifts or other financial institutions, certain recipients of social security or railroad retirement benefits, taxpayers otherwise entitled to claim the earned income credit, or taxpayers who may be deemed to have incurred or continued indebtedness to purchase or carry tax-exempt obligations, should consult their tax advisors as to the tax consequences of purchasing or owning the Bonds. 26

31 Bank Qualified The City has represented that it reasonably anticipates issuing not greater than $30,000,000 of tax-exempt obligations during the calendar year 2010 (excluding certain private activity and refunding obligations) and that is has properly designated the Bonds as qualified tax-exempt obligations within the meaning of Section 265(b)(3) of the Code. Accordingly, Bond Counsel is of the opinion that in the case of certain banks, thrift institutions or other financial institutions owning the Bonds, a deduction is allowed for 80% of the otherwise allowable deduction of that portion of such institutions interest expense allocable to interest on the Bonds. Bond Counsel has expressed no opinion with respect to any deduction for federal tax law purposes of interest on indebtedness incurred or continued by a holder of the Bonds or a related person to purchase or carry the Bonds. Backup Withholding As a result of the enactment of the Tax Increase Prevention and Reconciliation Act of 2005, interest on tax-exempt obligations such as the Bonds is subject to information reporting in a manner similar to interest paid on taxable obligations. Backup withholding may be imposed on payments made after March 31, 2007 to any bondholder who fails to provide certain required information including an accurate taxpayer identification number to any person required to collect such information pursuant to Section 6049 of the Code. The new reporting requirement does not in and of itself affect or alter the excludability of interest on the Bonds from gross income for federal income tax purposes or any other federal tax consequence of purchasing, holding or selling tax-exempt obligations. Changes in Federal Tax Law From time to time, there are legislative proposals in the Congress and in the states that, if enacted, could alter or amend the federal and state tax matters referred to above or adversely affect the market value of the Bonds. It cannot be predicted whether or in what form any such proposal might be enacted or whether if enacted it would apply to bonds issued prior to enactment. In addition, regulatory actions are from time to time announced or proposed and litigation is threatened or commenced which, if implemented or concluded in a particular manner, could adversely affect the market value of the Bonds. It cannot be predicted whether any such regulatory action will be implemented, how any particular litigation or judicial action will be resolved, or whether the Bonds or the market value thereof would be impacted thereby. Purchasers of the Bonds should consult their tax advisors regarding any pending or proposed legislation, regulatory initiatives or litigation. The opinions expressed by Bond Counsel are based upon existing legislation and regulations as interpreted by relevant judicial and regulatory authorities as of the date of issuance and delivery of the Bonds and Bond Counsel has expressed no opinion as of any date subsequent thereto or with respect to any pending legislation, regulatory initiatives or litigation. 27

32 AUTHORIZATION Any statements in this Official Statement involving matters of opinion, whether or not expressly so stated, are intended as such and not as representations of fact. The City and the Developer have authorized the distribution and execution of this Official Statement. City of Overland Park, Kansas By: Title: OAK PARK MALL, LLC By: CBL & Associates Limited Partnership By: Title: Manager By: CBL Holding I, Inc. By: Title: General Partner

33 APPENDIX A RETAIL SALES TAX STUDY OAK PARK MALL TRANSPORTATION DEVELOPMENT DISTRICT

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81 APPENDIX B TRUST INDENTURE

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83 TRUST INDENTURE Dated as of May 1, 2010 Between CITY OF OVERLAND PARK, KANSAS and UMB BANK, N.A. as Trustee Relating to: $16,800,000 * TRANSPORTATION DEVELOPMENT DISTRICT SALES TAX REVENUE BONDS SERIES 2010 (OAK PARK MALL PROJECT) * Preliminary, subject to change.

84 TABLE OF CONTENTS ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION Section 101. Definitions of Words and Terms... 2 Section 102. Rules of Construction... 8 ARTICLE II AUTHORIZATION OF BONDS Section 201. Authorization of Bonds... 8 Section 202. Description of the Bonds... 8 Section 203. Method and Place of Payment of the Bonds... 9 Section 204. Registration, Transfer and Exchange of Bonds Section 205. Execution, Registration, Authentication and Delivery of Bonds Section 206. Mutilated, Lost, Stolen or Destroyed Bonds Section 207. Cancellation and Destruction of Bonds Upon Payment ARTICLE III REDEMPTION OF BONDS Section 301. Redemption by City Section 302. Selection of Bonds to be Redeemed Section 303. Notice and Effect of Call for Redemption ARTICLE IV CREATION OF FUNDS AND ACCOUNTS; DEPOSIT AND APPLICATION OF BOND PROCEEDS Section 401. Creation of Funds and Accounts Section 402. Deposit of Bond Proceeds Section 403. Application of Moneys in the Project Fund Section 404. Debt Service Fund Section 405. Application of Moneys in the Rebate Fund Section 406. Application of Moneys in the Costs of Issuance Fund Section 407. Application of Moneys in the Debt Service Reserve Fund Section 408. Nonpresentment of Bonds ARTICLE V COLLECTION AND APPLICATION OF REVENUES Section 501. Revenue Fund Section 502. Application of Moneys in the Revenue Fund Section 503. Payments Due on Saturdays, Sundays and Holidays Page i

85 ARTICLE VI DEPOSIT AND INVESTMENT OF MONEYS Section 601. Deposits of Moneys Section 602. Investment of Moneys ARTICLE VII REFUNDING BONDS Section 701. Refunding Bonds ARTICLE VIII GENERAL COVENANTS AND PROVISIONS Section 801. City to Issue Bonds and Execute Indenture Section 802. Limited Obligations Section 803. Payment of Bonds Section 804. Performance of Covenants Section 805. Inspection of Books Section 806. Enforcement of Rights ARTICLE IX DEFAULT AND REMEDIES Section 901. Events of Default Section 902. Acceleration of Maturity; Rescission and Annulment Section 903. Exercise of Remedies by the Trustee Section 904. Trustee May File Proofs of Claim Section 905. Limitation on Suits by Bondowners Section 906. Control of Proceedings by Bondowners Section 907. Application of Moneys Collected Section 908. Rights and Remedies Cumulative Section 909. Delay or Omission Not Waiver Section 910. Waiver of Past Defaults ARTICLE X THE TRUSTEE Section Acceptance of Trusts; Certain Duties and Responsibilities Section Certain Rights of Trustee Section Notice of Defaults Section Compensation and Reimbursement Section Corporate Trustee Required; Eligibility ii

86 Section Resignation and Removal of Trustee Section Appointment of Successor Trustee Section Acceptance of Appointment by Successor Section Merger, Consolidation and Succession to Business Section Co-Trustees and Separate Trustees Section Designation of Paying Agents ARTICLE XI SUPPLEMENTAL INDENTURES Section Supplemental Indentures Without Consent of Bondowners Section Supplemental Indentures with Consent of Bondowners Section Execution of Supplemental Indentures Section Effect of Supplemental Indentures Section Reference in Bonds to Supplemental Indentures ARTICLE XII SATISFACTION AND DISCHARGE Section Payment, Discharge and Defeasance of Bonds Section Satisfaction and Discharge of Indenture Section Rights Retained After Discharge ARTICLE XIII TAX COVENANTS Section General Covenants Section Rebate Covenants ARTICLE XIV MISCELLANEOUS PROVISIONS Section Compliance Certificates and Opinions Section Notices, Consents and Other Instruments by Registered Bondowners Section Further Authority Section Severability Section Governing Law Section Notices Section Execution in Counterparts Section Electronic Storage iii

87 Exhibit A Exhibit B Exhibit C Exhibit D Transportation Project Form of Bond Form of Written Request - Costs of Issuance Fund Form of Written Request - Project Fund iv

88 TRUST INDENTURE THIS TRUST INDENTURE (the Indenture ), entered into as of May 1, 2010, between the CITY OF OVERLAND PARK, KANSAS (the City ) and UMB BANK, N.A., a national banking association duly organized and existing under the laws of the United States of America, having a principal corporate trust office located in Kansas City, Missouri and being qualified to accept and administer the trusts hereby created, as trustee (the Trustee ); RECITALS 1. The City of Overland Park, Kansas (the City ), is a municipal corporation and a city of the first class, duly created, organized and existing under the laws of the State of Kansas. 2. The City has the authority to create a transportation development district, impose a transportation development district sales tax and issue transportation development district sales tax revenue bonds for the purpose of financing projects within the transportation development district, pursuant to the Transportation Development District Act, constituting Sections K.S.A ,140 et. seq., as amended (the Act ). 3. On September 17, 2007 the governing body of the City adopted Resolution No creating a transportation development district to be known as the Oak Park Mall Transportation Development District (the Oak Park Mall TDD ) and imposing a transportation district sales tax in the amount of one-half of one percent (.5%) (the TDD Sales Tax ) for the purpose of financing certain transportation related improvements for the Oak Park Mall, as more particularly described in Exhibit A attached hereto (the Transportation Project ). 4. The City has determined that it is in the best interests of the City to issue $16,800,000 * aggregate principal amount of Transportation Development District Sales Tax Revenue Bonds, Series 2010 (Oak Park Mall Project) (the Bonds ). 5. On, 2010, the City passed an ordinance (the Ordinance ), authorizing the issuance of the Bonds pursuant to this Indenture for the above purposes. 6. Pursuant to the Ordinance, the City is authorized to execute and deliver this Indenture for the purpose of issuing and securing the Bonds as hereinafter provided. GRANTING CLAUSES To determine the terms and conditions upon which Bonds are to be authenticated, issued and delivered and to secure the payment of all of the Bonds issued and Outstanding under this Indenture from time to time according to their tenor and effect and to secure the performance and observance by the City of all the covenants, agreements and conditions contained in this Indenture and in the Bonds, and in consideration of the promises, the acceptance by the Trustee of the trusts created by this Indenture, the purchase and acceptance of the Bonds by the owners thereof, the City hereby transfers in trust, pledges and assigns to the Trustee, and hereby grants a * Preliminary, subject to change.

89 security interest to the Trustee in the property described in paragraphs (a), (b) and (c) below (said property referred to herein as the Trust Estate ): (a) All TDD Sales Tax Revenues as defined and identified herein; and (b) All moneys and securities from time to time held by the Trustee under the terms of this Indenture; and (c) All other property of every name and nature, from time to time hereafter by delivery or by writing mortgaged, pledged, delivered or hypothecated as and for additional security under this Indenture by the City or anyone on its behalf or with its written consent in favor of the Trustee. 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 another, except as otherwise expressly provided herein. NOW, THEREFORE, the City covenants and agrees with the Trustee, for the equal and proportionate benefit of the respective owners of the Bonds, 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 AND RULES OF CONSTRUCTION Section 101. Definitions of Words and Terms. In addition to words and terms defined elsewhere in this Indenture, the following capitalized words and terms as used in this Indenture shall have the following meanings: Authorized City Representative means the Mayor, the City Manager, the Deputy City Manager, the City Attorney or the Senior Assistant City Attorney or such other person at the time designated to act on behalf of the City as evidenced by written certificate furnished to the Developer and the Trustee containing the specimen signature of such person and signed on behalf of the City by its Mayor, City Manager or Deputy City Manager. Such certificate may designate an alternate or alternates, each of whom shall be entitled to perform all duties of the Authorized City Representative. Authorized Denominations means a minimum of $25,000 or any integral multiple of $5,000 in excess thereof. Authorized Developer Representative means the of the Developer and such other person or persons at the time designated to act on behalf of the Developer in matters relating to the Indenture as evidenced by a written certificate furnished to the City containing the specimen signature of such person or persons and signed on behalf of the Developer by the Manager of the Developer. 2

90 Bond Counsel means Kutak Rock, LLP, or other firm of nationally recognized bond counsel. Bond Payment Account means the account by that name established within the Debt Service Fund. Bond Register means the books for the registration, transfer and exchange of the Bonds kept at the office of the Trustee. Bonds means $16,800,000 * Transportation Development District Sales Tax Revenue Bonds, Series 2010 (Oak Park Mall Project), of the City authorized and issued pursuant to this Indenture. Business Day means a day other than a Saturday, Sunday or holiday on which the Trustee is scheduled in the normal course of its operations to be open to the public for conduct of its banking operations. Cash Flow Verification Agent means Oppenheimer & Co. Inc. or any other consultant selected by the City from time to time. Certification of Expenditures means those Transportation Project Costs related to the Transportation Project within the Oak Park Mall TDD and approved by the City. City means the City of Overland Park, Kansas, and any successors or assigns. Closing Date means the date the City issues and delivers the Bonds to the Underwriter. Code means the Internal Revenue Code of 1986, as amended, and the applicable regulations proposed or promulgated thereunder of the United States Department of the Treasury. Costs of Issuance means all costs of issuing the Bonds, including all publication, printing, signing and mailing expenses in connection therewith, registration fees, financial advisory fees, Trustee s fees, all legal fees and expenses of Bond Counsel and other legal counsel and expenses incurred in connection with compliance with the Code. Costs of Issuance Fund means the fund by that name created by Section 401 hereof. Date of Delivery and Dated Date means the Closing Date. Debt Service Fund means the fund by that name created by Section 401 hereof. Debt Service Requirements means the aggregate principal payments (whether at maturity or pursuant to scheduled mandatory sinking fund redemption requirements) and interest payments on the Bonds for the period of time for which calculated; provided, however, that for purposes of calculating such amount, principal and interest shall be excluded from the * Preliminary, subject to change. 3

91 determination of Debt Service Requirements to the extent that such principal or interest is payable from amounts deposited in trust, escrowed or otherwise set aside for the payment thereof with the Trustee or other commercial bank or trust company located in the State and having full trust powers. Debt Service Reserve Fund means the fund by that name created in Section 401 hereof. Debt Service Reserve Requirement means initially the sum of $1,680,000 * to be deposited from Bond proceeds in the Debt Service Reserve Fund on the Closing Date, which amount will be increased to a maximum of $2,520,000 solely from Excess TDD Sales Tax revenues in the Revenue Fund, if available. Defaulted Interest means interest on any Bond which is payable but not paid on any Interest Payment Date. Developer and Shopping Center Owner means Oak Park Mall, LLC, a Kansas limited liability company and its successors and assigns. Development Agreement means the Development Agreement dated, 2009, by and between the City and the Developer. Excess TDD Sales Tax Revenues means the TDD Sales Tax Revenues available, after application of the TDD Sales Tax Revenues pursuant to subsections (a) through (g) of Section 502, to deposit first into the Debt Service Reserve Fund until the Debt Service Reserve Requirement is met and then into the Redemption Account. Financing Documents means this Indenture, the Bonds, the Development Agreement, any and all other documents or instruments that evidence or are a part of the transactions referred to in this Indenture, the Development Agreement or contemplated by this Indenture or the Development 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. General Contractor means E M J Corporation, Inc. Government Obligations means direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by the United States of America. Indenture means this Trust Indenture as originally executed by the City and the Trustee, as from time to time amended and supplemented by Supplemental Indentures in accordance with the provisions of this Indenture. * Preliminary, subject to change. 4

92 Interest Payment Date means each April 1 and October 1, commencing October 1, Maturity when used with respect to any Bond means the date on which the principal of such Bond becomes due and payable as therein and herein provided, whether at the Stated Maturity thereof or at a call for redemption or otherwise. Oak Park Mall TDD means that certain transportation development district created pursuant to the Act and Resolution No adopted by the Governing Body of the City on September 17, Officer s Certificate means a written certificate of the Developer, substantially in the form described in Section 1401 hereof signed by the Authorized Developer Representative, which certificate shall be deemed to constitute a representation of, and shall be binding upon, the Developer 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. Opinion of Bond Counsel means a written opinion in the form described in Section 1401 hereof of any legal counsel acceptable to the City and the Trustee who shall be nationally recognized as expert in matters pertaining to the validity of obligations of governmental issuers. Opinion of Counsel means a written opinion in the form described in Section 1401 hereof of any legal counsel acceptable to the recipients thereof, who may be an employee of or counsel to the Developer or the Trustee. Ordinance means Ordinance No. TDD- of the City authorizing the issuance of the Bonds. Outstanding means, when used with respect to Bonds, as of any particular date, the Bonds theretofore issued and delivered under this Indenture, except (a) cancellation; Bonds theretofore cancelled by the Trustee or delivered to the Trustee for (b) Bonds deemed to be paid in accordance with the provisions of Section 1201 hereof; and (c) Bonds in exchange for or in lieu of which other Bonds have been registered and delivered hereunder. Paying Agent means the Trustee and any other commercial bank or trust institution organized under the laws of any state of the United States of America or any national banking association designated pursuant to this Indenture or any Supplemental Indenture as paying agent for any series of Bonds at which the principal of, redemption premium, if any, and interest on such Bonds shall be payable. 5

93 Permitted Investments means any of the following securities and obligations, if and to the extent the same are at the time legal for investment of the City s moneys held in the funds and accounts referred to in Section 501 and Section 502 hereof: (a) Government Obligations; (b) bonds or other obligations of the State of Kansas, or any political subdivision of the State of Kansas, that at the time of their purchase are rated in either of the two highest rating categories by a nationally recognized rating service; (c) repurchase agreements with any bank, bank holding company, savings and loan association, trust company, or other financial institution organized under the laws of the United States or any state (including the Trustee and its affiliates), that are continuously and fully secured by any one or more of the securities described in clause (a) or (b) above and have a market value, exclusive of accrued interest, at all times at least equal to the principal amount of such repurchase agreement and are held in a custodial or trust account for the benefit of the City; (d) obligations of the Federal National Mortgage Association, the Government National Mortgage Association, the Federal Financing Bank, the Federal Intermediate Credit Corporation, Federal Banks for Cooperatives, Federal Land Banks, Federal Home Loan Banks, Farmers Home Administration and Federal Home Loan Mortgage Corporation; (e) certificates of deposit, time deposits or other deposits, whether negotiable or non-negotiable, issued by any bank or trust company organized under the laws of the United States or any state (including the Trustee and its affiliates), provided that such certificates of deposit or time deposits shall be either (1) continuously and fully insured by the Federal Deposit Insurance Corporation, or (2) continuously and fully secured by such securities as are described above in clauses (a), (b) or (d), which shall 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 deposits; (f) money market mutual funds that are registered with the Securities and Exchange Commission meeting the requirements of Rule 2a-7 under the Investment Company Act of 1940 and which invest in securities as are described above in (a), (b) or (d); and (g) any other securities or investments that are lawful for the investment of moneys held in such funds or accounts under the laws of the State of Kansas. Principal Payment Date means April 1, 2020 * and April 1, 2032 *. Project Fund means the fund by that name created by Section 401 hereof. Rebate Fund means the fund by that name created by Section 401 hereof. * Preliminary, subject to change. 6

94 Record Date for the interest payable on any Interest Payment Date means the 15 th day (whether or not a Business Day) of the calendar month next preceding such Interest Payment Date. Redemption Account means the account by that name established within the Debt Service Fund. Redemption Date when used with respect to any Bond to be redeemed means the date fixed for such redemption pursuant to the terms of this Indenture. Redemption Price when used with respect to any Bond to be redeemed means the price at which such Bond is to be redeemed pursuant to the terms of this Indenture, including the applicable redemption premium, if any, but excluding installments of interest whose Stated Maturity is on or before the Redemption Date. Registered Bondowner or Bondowner when used with respect to any Bond means the person in whose name such Bond is registered on the Bond Register. Revenue Fund means the fund by that name created by Section 401 hereof. State means the State of Kansas. Stated Maturity when used with respect to any Bond or any installment of interest thereon means the date specified in such Bond and this Indenture as the fixed date on which the principal of such Bond or such installment of interest is due and payable. Supplemental Indenture means any indenture supplemental or amendatory to this Indenture entered into by the City and the Trustee pursuant to Article XI of this Indenture. Tax Compliance Agreement means the Tax Compliance Agreement of even date herewith, among the City, the Developer and the Trustee, as from time to time amended in accordance with the provisions thereof. TDD Sales Tax means the transportation development district sales tax in the amount of one-half of one percent (0.5%) imposed on the selling of tangible personal property at retail or rendering or furnishing services taxable pursuant to the Kansas Retailer's Sales Tax Act within the Oak Park Mall TDD. TDD Sales Tax Revenues means the revenues derived, received and collected within the Oak Park Mall TDD from the TDD Sales Tax. Treasurer means the duly appointed and acting Treasurer of the City or, in the Treasurer s absence, the duly appointed Deputy or acting Treasurer of the City. Transportation Project means certain transportation related improvements located within the Oak Park Mall TDD as more fully described in Exhibit A hereto. 7

95 Transportation Project Costs means costs permitted under the Act to be paid out of proceeds of the Bonds with respect to the Transportation Project, and any other costs permitted by the Act, in accordance with Exhibit D and the Development Agreement. Trust Estate means the Trust Estate described in the Granting Clauses of this Indenture. Trustee means UMB Bank, N.A., Kansas City, Missouri, and its successors 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 Oppenheimer & Co. Inc. Value as of any particular time of determination, means, (a) with respect to cash the face value thereof and (b) with respect to any investments, the lower of the cost of the investment or the market price of the investment on the date of valuation. Section 102. Rules of Construction. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires: (a) Words of the masculine gender shall be deemed and construed to include correlative words of the feminine and neuter genders. (b) Words importing the singular number shall include the plural and vice versa and words importing person shall include firms, associations and corporations, including public bodies, as well as natural persons. (c) The table of contents hereto and the headings and captions herein are not a part of this document. (d) Terms used in an accounting context and not otherwise defined shall have the meaning ascribed to them by generally accepted principles of accounting. ARTICLE II AUTHORIZATION OF BONDS Section 201. Authorization of Bonds. The Bonds have been authorized and issued pursuant to the Ordinance and the laws of the State of Kansas, including particularly K.S.A ,140 et seq., as amended and supplemented, for the purpose of paying a portion of the Transportation Project Costs, as provided in this Indenture, funding a portion of a debt service reserve fund and paying the Costs of Issuance of the Bonds. Section 202. Description of the Bonds. The Bonds shall consist of fully registered bonds in Authorized Denominations, and shall be numbered in such manner as the Trustee shall determine. The Bonds shall be dated the Dated Date and shall become due in the amounts, on 8

96 the Stated Maturity, and subject to redemption and payment, prior to its Stated Maturity as provided in Article III hereof and shall bear interest at the rates per annum as follows: Term Bonds Stated Maturity Principal Amount Interest Rate April 1, 2020 * April 1, 2032 * The Bonds shall bear interest at the above specified rates (computed on the basis of a 360-day year of twelve 30-day months) from the later of the Dated Date or the most recent Interest Payment Date to which interest has been paid on the Interest Payment Dates in the manner set forth in Section 203 hereof. Each of the Bonds, as originally issued or issued upon transfer, exchange or substitution, shall be printed in accordance with the format required by the Attorney General of the State and shall be substantially in the form attached hereto as Exhibit B or as may be required by the Attorney General pursuant to the Notice of Systems of Registration for Kansas Municipal Bonds, 2 Kan, Reg. 921 (1983), in accordance with the Kansas Bond Registration Law, K.S.A et seq. Section 203. Method and Place of Payment of the Bonds. The principal of, or Redemption Price, and interest on the Bonds shall be payable in any coin or currency which, on the respective dates of payment thereof, is legal tender for the payment of public and private debts. The principal of, Redemption Price or interest payable on each Bond on any Interest Payment Date or Maturity shall be paid to the Bondowner of such Bond as shown on the Bond Register at the close of business on the Record Date for such interest (a) by check or draft mailed by the Trustee to the address of such Bondowner shown on the Bond Register or at such other address as is furnished to the Trustee in writing by such Bondowner or (b) in the case of any payment to the Securities Depository or any Bondowner of $500,000 or more in aggregate principal amount of Bonds, by electronic transfer to such Bondowner upon written notice given to the Trustee by such Bondowner, not less than 5 days prior to the Record Date for such interest, containing the electronic transfer instructions including the bank (which shall be in the continental United States), ABA routing number and account number to which such Bondowner wishes to have such transfer directed. Notwithstanding the foregoing provisions of this Section, any Defaulted Interest with respect to any Bond shall cease to be payable to the Bondowner of such Bond on the relevant Record Date and shall be payable to the Bondowner in whose name such Bond is registered at the close of business on the Special Record Date for the payment of such Defaulted Interest, which Special Record Date shall be fixed as hereinafter specified in this paragraph. The City shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Bond and the date of the proposed payment (which date shall be at least 30 days after * Preliminary, subject to change. 9

97 receipt of such notice by the Trustee) and shall deposit with the Trustee at the time of such notice an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment. Following receipt of such funds the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 nor less than 10 days prior to the date of the proposed payment. The Trustee shall promptly notify the City of such Special Record Date and, in the name and at the expense of the City, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, by first class mail, postage prepaid, to each Bondowner of a Bond entitled to such notice at the address of such Bondowner as it appears on the Bond Register not less than 10 days prior to such Special Record Date. The Trustee shall keep a record of payment of principal and Redemption Price of and interest on all Bonds and at least annually shall forward a copy or summary of such records to the City. Section 204. Registration, Transfer and Exchange of Bonds. The City covenants that, as long as any of the Bonds remain Outstanding, it will cause the Bond Register to be kept at the office of the Trustee as herein provided. Each Bond when issued shall be registered in the name of the Bondowner thereof on the Bond Register. Bonds may be transferred and exchanged only on the Bond Register as provided in this Section. Upon surrender of any Bond at the principal corporate trust office of the Trustee, the Trustee shall transfer or exchange such Bond for a new Bond or Bonds in any authorized denomination of the same Stated Maturity and in the same aggregate principal amount as the Bond that was presented for transfer or exchange. Bonds presented for transfer or exchange shall be accompanied by a written instrument or instruments of transfer or authorization for exchange, in a form and with guarantee of signature satisfactory to the Trustee, duly executed by the Bondowner thereof or by the Bondowner s duly authorized agent. In all cases in which the privilege of transferring or exchanging Bonds is exercised, the Trustee shall authenticate and deliver Bonds in accordance with the provisions of this Indenture. Any additional costs or fees that might be incurred in the secondary market, other than fees of the Trustee, are the responsibility of the Bondowners of the Bonds. In the event any Bondowner fails to provide a correct taxpayer identification number to the Trustee, the Trustee may make a charge against such Bondowner sufficient to pay any governmental charge required to be paid as a result of such failure. In compliance with Section 3406 of the Code, such amount may be deducted by the Trustee from amounts otherwise payable to such Bondowner hereunder or under the Bonds. The City and the Trustee shall not be required (a) to register the transfer or exchange of any Bond that has been called for redemption after notice of such redemption has been mailed by the Trustee pursuant to Section 303 hereof and during the period of 15 days next preceding the date of mailing of such notice of redemption; or (b) to register the transfer or exchange of any Bond during a period beginning at the opening of business on the day after receiving written 10

98 notice from the City of its intent to pay Defaulted Interest and ending at the close of business on the date fixed for the payment of Defaulted Interest pursuant to Section 203 hereof. The City and the Trustee may deem and treat the Person in whose name any Bond is registered on the Bond Register as the absolute Bondowner of such Bond, whether such Bond is overdue or not, for the purpose of receiving payment of, or on account of, the principal or Redemption Price of and interest on said Bond and for all other purposes. All payments so made to any such Bondowner or upon the Bondowner s order shall be valid and effective to satisfy and discharge the liability upon such Bond to the extent of the sum or sums so paid, and neither the City nor the Trustee shall be affected by any notice to the contrary. At reasonable times and under reasonable regulations established by the Trustee, the Bond Register may be inspected and copied by the Bondowners (or a designated representative thereof) of 10% or more in principal amount of the Bonds then Outstanding or any designated representative of such Bondowners whose authority is evidenced to the satisfaction of the Trustee. Section 205. Execution, Registration, Authentication and Delivery of Bonds. Each of the Bonds, including any Bonds issued in exchange or as substitutions for the Bonds initially delivered, shall be executed for and on behalf of the City by the manual or facsimile signature of the Mayor, attested by the manual or facsimile signature of the Clerk and the seal of the City shall be affixed thereto or imprinted thereon. The Mayor and Clerk are hereby authorized and directed to prepare and execute the Bonds in the manner herein specified, and to cause the Bonds to be registered in the office of the Clerk, which registration shall be evidenced by the manual or facsimile signature of the Clerk with the seal of the City affixed thereto or imprinted thereon. The Bonds shall also be registered in the office of the State Treasurer, which registration shall be evidenced by the manual or facsimile signature of the State Treasurer with the seal of the State Treasurer affixed thereto or imprinted thereon. In case any officer whose signature appears on any Bonds ceases to be such officer before the delivery of such Bonds, such signature shall nevertheless be valid and sufficient for all purposes, as if such person had remained in office until delivery. Any Bond may be signed by such persons who at the actual time of the execution of such Bond are the proper officers to sign such Bond although at the date of such Bond such persons may not have been such officers. The Mayor and Clerk are hereby authorized and directed to prepare and execute the Bonds as herein specified, and when duly executed, to deliver the Bonds to the Trustee for authentication. The Bonds shall have endorsed thereon a certificate of authentication substantially in the form attached hereto as Exhibit B hereof, which shall be manually executed by an authorized officer or employee of the Trustee, but it shall not be necessary that the same officer or employee sign the certificate of authentication on all of the Bonds that may be issued hereunder at any one time. No Bond shall be entitled to any security or benefit under this Indenture or be valid or obligatory for any purpose unless and until such certificate of authentication has been duly executed by the Trustee. Such executed certificate of authentication upon any Bond shall be conclusive evidence that such Bond has been duly authenticated and delivered under this 11

99 Indenture. Upon authentication, the Trustee shall deliver the Bonds to the Purchaser upon instructions of the City or its representative. Section 206. Mutilated, Lost, Stolen or Destroyed Bonds. If (a) 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 (b) there is delivered to the City and the Trustee such security or indemnity as may be required by each of them, then, in the absence of notice to the City or the Trustee that such Bond has been acquired by a bona fide purchaser, the City shall execute and, upon the City s request, 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 the same Stated Maturity and of like tenor and principal amount. If any such mutilated, destroyed, lost or stolen Bond has become or is about to become due and payable, the City, in its discretion, may pay such Bond instead of issuing a new Bond. Upon the issuance of any new Bond under this Section, the City may require the payment by the Bondowner of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. Every new Bond issued pursuant to this Section shall constitute a replacement of the prior obligation of the City, and shall be entitled to all the benefits of this Indenture equally and ratably with all other Outstanding Bonds. Section 207. Cancellation and Destruction of Bonds Upon Payment. All Bonds that have been paid or redeemed or that otherwise have been surrendered to the Trustee, either at or before Maturity, shall be cancelled by the Trustee immediately upon the payment, redemption and surrender thereof to the Trustee and subsequently destroyed in accordance with the customary practices of the Trustee. Section 301. Redemption by City. ARTICLE III REDEMPTION OF BONDS (a) Optional Redemption. At the option of the City, the Bonds are subject to redemption and payment prior to their Stated Maturity by the Trustee on April 1, 20 or any date thereafter, in whole or in part, in such principal amounts representing Authorized Denominations, at the redemption price of 100% (expressed as a percentage of the principal amount) plus accrued interest thereon to the Redemption Date. Selection of maturities and the amount of Bonds of each maturity to be redeemed will be determined by the City in such equitable manner as it may determine. (b) Mandatory Redemption from Moneys in the Project Fund. The Bonds are subject to mandatory redemption by the Trustee on any date, at the redemption price of 100% of the principal amount being redeemed, together with accrued interest thereon 12

100 to the Redemption Date from moneys remaining in the Project Fund on the earlier completion of the Transportation Project or April 1, (c) Special Mandatory Redemption. (i) The Bonds are subject to special mandatory redemption on an Interest Payment Date by the Trustee, at a redemption price equal to 100% of the principal amount thereof plus accrued interest to the redemption date, in an amount equal to the amount which is on deposit in the Redemption Account of the Debt Service Fund in excess of $50,000 (rounded to the nearest $5,000) forty-five (45) days prior to each Interest Payment Date (or if such date is not a Business Day, the immediately preceding Business Day). (ii) The Bonds are also subject to special mandatory redemption by the Trustee in whole but not in part, on any date in the event that moneys in the Debt Service Fund, the Redemption Account and the Debt Service Reserve Fund are sufficient to redeem all of the Bonds then Outstanding at a redemption price of 100% of the principal amount of the Bonds Outstanding, together with accrued interest thereon to the date fixed for redemption. (d) Mandatory Sinking Fund Redemption. The Bonds maturing on April 1, 2020 * and April 1, 2032 * are term Bonds and are subject to mandatory redemption prior to maturity, by lot, at a redemption price equal to the principal amount thereof to be redeemed, plus accrued interest to the date fixed for redemption, in the principal amounts and on February 1 of the years set forth below: 2020 Term Bond Year Principal Amount *Final Maturity , , , , , , , , , ,000 * * Preliminary, subject to change. 13

101 2032 Term Bond Year Principal Amount , , , , , ,000, ,115, ,205, ,390, ,540, ,700, ,390,000 * *Final Maturity Section 302. Selection of Bonds to be Redeemed. (a) In the event the City desires to call the Bonds for redemption prior to maturity pursuant to Section 301(a) hereof, written notice of such intent shall be provided to the Trustee in accordance with K.S.A , as amended, not less than 45 days prior to the Redemption Date. The Trustee shall call Bonds for redemption and payment and shall give notice of such redemption as herein provided upon receipt by the Trustee at least 45 days prior to the Redemption Date of written instructions of the City specifying the principal amount, Stated Maturities, Redemption Date and Redemption Prices of the Bonds to be called for redemption. The Trustee is entitled to conclusively rely on any such written request in exercising its duty to give notice of the call for such redemption. If the Bonds are refunded more than 90 days in advance of such Redemption Date, any escrow agreement entered into by the City in connection with such refunding shall provide that such written instructions to the Trustee shall be given by the escrow agent on behalf of the City not more than 90 days prior to the Redemption Date. The Trustee may in its discretion waive such notice period so long as the notice requirements set forth in Section 303 are met. The foregoing provisions of this paragraph shall not apply in the case of any special mandatory redemption of Bonds. (b) Bonds shall be redeemed only in the principal amount of $25,000 or any integral multiple of $5,000 in excess thereof. When less than all of the Bonds are to be redeemed and paid prior to their Stated Maturity, such Bonds shall be redeemed in such manner as the Trustee shall determine, Bonds of less than a full Stated Maturity, shall be selected by the Trustee in $25,000 units of principal amount in such equitable manner as the Trustee may determine. 14

102 (c) In the case of a partial redemption of Bonds by lot when Bonds of denominations greater than $25,000 are then Outstanding, then for all purposes in connection with such redemption each $25,000 of face value shall be treated as though it were a separate Bond of the denomination of $25,000. If it is determined that one or more, but not all, of the $25,000 units of face value represented by any Bond is selected for redemption, then upon notice of intention to redeem such $25,000 unit or units, the Bondowner or the Bondowner s duly authorized agent shall forthwith present and surrender such Bond to the Trustee: (1) for payment of the Redemption Price and interest to the Redemption Date of such $25,000 unit or units of face value called for redemption, and (2) for exchange, without charge to the Bondowner thereof, for a new Bond or Bonds of the aggregate principal amount of the unredeemed portion of the principal amount of such Bond. If the Bondowner of any such Bond fails to present such Bond to the Trustee for payment and exchange as aforesaid, such Bond shall, nevertheless, become due and payable on the redemption date to the extent of the $25,000 unit or units of face value called for redemption (and to that extent only). (d) Prior to the date fixed for redemption pursuant to Section 301(a) hereof, moneys or Government Obligations which are sufficient to pay the Bonds called for redemption and accrued interest thereon to the redemption date and the redemption premium, if any, shall be placed by the City with the Trustee. Upon the happening of the above conditions, and notice having been given as provided herein, the Bonds or the portions of the principal amount of Bonds called for redemption cease to bear interest on the specified redemption date and are not deemed to be outstanding under the provisions of the Indenture. Section 303. Notice and Effect of Call for Redemption. If the City shall call any Bonds for redemption and payment prior to the Stated Maturity thereof, pursuant to Section 302(a) hereof the City shall cause the Trustee to give written notice of redemption to the Bondowners of said Bonds. Each of said written notices shall be deposited in the United States first class mail not less than 30 days and not more than 60 days prior to the Redemption Date. All official notices of redemption shall be dated and shall contain the following information: (a) (b) the Redemption Date; the Redemption Price; (c) if less than all Outstanding Bonds are to be redeemed, the identification (and, in the case of partial redemption of any Bonds, the respective principal amounts) of the Bonds to be redeemed; (d) a statement 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 interest thereon shall cease to accrue from and after the Redemption Date; and (e) the place where such Bonds are to be surrendered for payment of the Redemption Price, which shall be the principal office of the Trustee. 15

103 The failure of any Bondowner to receive notice given as heretofore provided or an immaterial defect therein shall not invalidate any redemption. Prior to any Redemption Date, the City shall deposit with the Trustee an amount of money sufficient to pay the Redemption Price of all the Bonds or portions of Bonds that are to be redeemed on such Redemption Date. Official notice of redemption having been given as aforesaid, the Bonds or portions of Bonds to be redeemed shall become due and payable on the Redemption Date, at the Redemption Price therein specified, and from and after the Redemption Date (unless the City defaults in the payment of the Redemption Price) such Bonds or portion of Bonds shall cease to bear interest. Upon surrender of such Bonds for redemption in accordance with such notice, the Redemption Price of such Bonds shall be paid by the Trustee. Installments of interest due on or prior to the Redemption Date shall be payable as herein provided for payment of interest. Upon surrender for any partial redemption of any Bond, there shall be prepared for the Bondowner a new Bond or Bonds of the same Stated Maturity in the amount of the unpaid principal as provided herein. All Bonds that have been surrendered for redemption shall be cancelled and destroyed by the Trustee as provided herein and shall not be reissued. ARTICLE IV CREATION OF FUNDS AND ACCOUNTS; DEPOSIT AND APPLICATION OF BOND PROCEEDS Section 401. Creation of Funds and Accounts. There are hereby created and ordered to be established with the Trustee the following separate funds and accounts, which funds and accounts shall be held in the custody of the Trustee pursuant to this Indenture: (a) (b) (c) (d) (e) (f) Revenue Fund. Project Fund. Debt Service Fund, which shall contain a Bond Payment Account and a Redemption Account. Debt Service Reserve Fund. Cost of Issuance Fund. Rebate Fund. Said funds and accounts shall be segregated and kept separate and apart from all other moneys, revenues, funds and accounts of the Trustee and shall not be commingled with any other moneys, revenues, funds and accounts of the Trustee. The funds and accounts referred to above shall be maintained and administered in the manner provided in this Indenture so long as any of the Bonds remain Outstanding hereunder. 16

104 Section 402. Deposit of Bond Proceeds. The net proceeds received from the sale of the Bonds shall be deposited simultaneously with the delivery of the Bonds as follows: (a) Accrued interest, if any, received from the sale of the Bonds shall be deposited in the Bond Payment Account of the Debt Service Fund and applied in accordance with Section 502(a) hereof. (b) The sum of $ shall be deposited in the Costs of Issuance Fund and applied in accordance with Section 406 hereof. Fund. (c) The sum of $ shall be deposited in the Debt Service Reserve (d) The remaining balance of the proceeds derived from the sale of the Bonds shall be deposited in the Project Fund and shall be applied in accordance with Section 403 hereof. Section 403. Application of Moneys in the Project Fund. Moneys in the Project Fund shall be used for the sole purpose of paying the costs of the Transportation Project. Withdrawals from the Project Fund shall be made after receipt by the Trustee of written disbursement requests signed by the Authorized Developer Representative and the General Contractor in substantially the form of Exhibit D attached hereto and only when approved in writing by the Authorized City Representative. Upon completion of the Transportation Project, any surplus remaining in the Project Fund shall be deposited in the Debt Service Fund. Section 404. Debt Service Fund. (a) The Trustee shall make deposits and credits to the Debt Service Fund, as and when received, as follows: (1) The amounts required to be deposited therein by Sections 402(a) and 502 hereof. (2) Any amount required to be transferred from the Project Fund to the Debt Service Fund upon completion of the Transportation Project pursuant to Section 403. (b) The moneys in the Debt Service Fund shall be held in trust and shall be applied solely in accordance with the provisions of this Indenture to pay the principal of and redemption premium, if any, and interest on the Bonds as the same become due and payable. Except as otherwise provided herein or in the Tax Compliance Agreement, moneys in the Debt Service Fund shall be expended solely as follows: (a) to pay interest on the Bonds as the same becomes due; (b) to pay principal of the Bonds as the same mature or become due and upon mandatory redemption thereof; and (c) to pay principal of and redemption premium, if any, on the Bonds as the same become due upon redemption prior to maturity. 17

105 (c) The City hereby authorizes and directs the Trustee to withdraw sufficient funds from the Debt Service Fund to pay principal of, redemption premium, if any, and interest on the Bonds as the same become due and payable at maturity or upon redemption and to make said funds so withdrawn available to the Trustee and any Paying Agent for the purpose of paying said principal, redemption premium, if any, and interest. (d) The Trustee shall make any transfers from the Debt Service Fund to the Rebate Fund to the extent required to do so by the Tax Compliance Agreement. (e) 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 Bond Indenture), all arbitrage rebate to the United States and the fees, charges and expenses of the Trustee, any Paying Agent and the City, and any other amounts required to be paid under this Indenture, all amounts remaining in the Debt Service Fund shall be paid to the City to be used in accordance with the Act. Section 405. Application of Moneys in the Rebate Fund. (a) There shall be deposited in the Rebate Fund such amounts as are required to be deposited therein pursuant to the Tax Compliance Agreement. All money at any time deposited in the Rebate Fund shall be held in trust, to the extent required to satisfy the Rebate Amount (as defined in the Tax Compliance Agreement), for payment to the United States of America, and neither the City nor the Bondowner of any Bonds shall have any rights in or claim to such money. All amounts deposited into or on deposit in the Rebate Fund shall be governed by this Section and the Tax Compliance Agreement. (b) The City shall cause the amount of any arbitrage rebate under Section 148(f) of the Code in accordance with the Tax Compliance Agreement to be determined, and the Trustee shall make payments to the United States of America at the times and in the amounts determined under the Tax Compliance Agreement. Any moneys remaining in the Rebate Fund after redemption and payment of all of the Bonds and payment and satisfaction of any Rebate Amount, or provision made therefor, shall be deposited into the TDD Sales Tax Revenue Fund. (c) Notwithstanding any other provision of this Indenture, including in particular Article XIII hereof, the obligation to pay arbitrage rebate to the United States of America and to comply with all other requirements of this Section and the Tax Compliance Agreement shall survive the defeasance or payment in full of the Bonds. Section 406. Application of Moneys in the Costs of Issuance Fund. Moneys in the Costs of Issuance Fund shall be used to pay the Costs of Issuance after receipt by the Trustee of written disbursement requests signed by the Authorized Developer Representative in substantially the form of Exhibit C hereto. Any funds remaining in the Costs of Issuance Fund, after payment of all Costs of Issuance, but not later than sixty (60) days after issuance of the Bonds, shall be transferred to the Project Fund until completion of the Transportation Project and thereafter to the Debt Service Fund. 18

106 Section 407. Application of Moneys in the Debt Service Reserve Fund. (a) Except as otherwise provided in this Indenture, moneys in the Debt Service Reserve Fund shall be used by the Trustee without further authorization solely for the payment of the principal of and interest on the Bonds if moneys otherwise available for such purpose as provided in this Indenture are insufficient to pay the same as they become due and payable. In the event the balance of moneys in the Debt Service Fund is insufficient to pay principal of or interest on the Bonds when due and payable, moneys in the Debt Service Reserve Fund shall be transferred into the Debt Service Fund in an amount sufficient to make up such deficiency. The Trustee may use moneys in the Debt Service Reserve Fund for such purpose whether or not the amount in the Debt Service Reserve Fund at that time equals the Debt Service Reserve Requirement. Such moneys shall be used first to make up any deficiency in the payment of interest and then principal. Moneys in the Debt Service Reserve Fund shall also be used to pay the last Bonds becoming due unless such Bonds and all interest hereon be otherwise paid. (b) The amount on deposit in the Debt Service Reserve Fund shall be valued by the Trustee 45 days prior to each Interest Payment Date (or if such date is not a Business Day, the immediately preceding Business Day) and the Trustee shall give immediate written notice to the City and the Developer if such amount is less than the Debt Service Reserve Requirement. For the purpose of determining the amount on deposit in the Debt Service Reserve Fund, the value of any investments shall be valued at their fair market value on the date of valuation. Moneys in the Debt Service Reserve Fund that are in excess of the Debt Service Reserve Requirement shall be deposited by the Trustee without further authorization in the Debt Service Fund. (c) 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 arbitrage rebate to the United States and the fees, charges and expenses of the Trustee, any Paying Agents and the City, and any other amounts required to be paid under this Indenture, all amounts remaining in the Debt Service Reserve Fund shall be paid to the City to be used in accordance with the Act. Section 408. Nonpresentment of Bonds. If any Bond is not presented for payment when the principal thereof becomes due at Maturity, if funds sufficient to pay such Bond have been made available to the Trustee all liability of the City to the Bondowner thereof for the payment of such Bond shall forthwith cease, determine and be completely discharged, and thereupon it shall be the duty of the Trustee to hold such funds, without liability for interest thereon, for the benefit of the Bondowner 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 is not presented for payment within five years following the date when such Bond becomes due at Maturity, the Trustee shall repay to the City the funds theretofore held by it for payment of such Bond, and such Bond shall, subject to the defense of any applicable statute of limitation, thereafter be an unsecured obligation of the City, and the Bondowner thereof shall be entitled to look only to the City for payment, and then only to the extent of the amount so repaid to it by the Trustee, and the City shall not be liable for any interest thereon and shall not be regarded as a trustee of such money. 19

107 ARTICLE V COLLECTION AND APPLICATION OF REVENUES Section 501. Revenue Fund. The City covenants and agrees that from and after the delivery of the Bonds, and continuing as long as any of the Bonds remain Outstanding hereunder, all of the TDD Sales Tax Revenues derived and collected from the Oak Park Mall TDD and received by the City on or after March 31, 2010 shall as and when received be paid and deposited into the Revenue Fund held by the Trustee under the Indenture. The City covenants and agrees that the City shall transfer to the Trustee TDD Sales Tax Revenues in the amount of $ collected and received from the State from September 30, 2009 through March 31, 2010, which shall be deposited by the Trustee in the Project Fund. TDD Sales Tax Revenues shall be segregated and kept separate and apart from all other moneys, revenues, funds and accounts of the City and shall not be commingled with any other moneys, revenues, funds and accounts of the City. The Revenue Fund shall be administered and applied solely for the purposes and in the manner provided in Section 502. Section 502. Application of Moneys in the Revenue Fund. The City covenants and agrees that from and after the delivery of the Bonds and continuing so long as any of the Bonds shall remain Outstanding, it will cause the Trustee on the 45 th day preceding each Interest Payment Date (or if such date is not a Business Day, the immediately preceding Business Day) to administer and allocate all of the moneys then held in the Revenue Fund as follows: (a) Debt Service Fund -- Interest. There shall be paid by the Trustee and credited semi-annually to the Debt Service Fund, an amount equal to the interest becoming due on the Bonds on the next Interest Payment Date; provided, that any amounts deposited in the Debt Service Fund as accrued interest in accordance with Section 402(a) shall be credited against the amount required to be deposited therein. (b) Debt Service Fund Principal. There shall next be paid by the Trustee and credited semi-annually to the Debt Service Fund, an amount equal to the principal, if any, becoming due on the Bonds on the next Principal Payment Date. (c) Debt Service Reserve Fund. There shall next be paid by the Trustee and credited semi-annually to the applicable account in the Debt Service Reserve Fund, if the amount on deposit is less than the Debt Service Reserve Requirement, such amounts as are necessary to restore any deficiency to the Debt Service Reserve Fund. (d) Rebate Fund. There shall next be paid by the Trustee and credited to the Rebate Fund, an amount sufficient to pay rebate, if any, to the United States of America, owed under Section 148 of the Code, as directed in writing by the City in accordance with the Tax Compliance Agreement. (e) Trustee s Fees. There shall be paid to the Trustee or any Paying Agent, an amount sufficient for payment of any fees and expenses which are due and owing to the Trustee or any Paying Agent, upon delivery to the City of an invoice for such amounts. 20

108 (f) Administrative Expenses. There shall be paid to the city an annual amount of $ for administrative expenses. (g) Cash Flow Verification. There shall be paid the Cash Flow Verification account an amount not to exceed $ annually to prepare its annual report. (h) Excess TDD Sales Tax Revenues. Forty-five (45) days prior to each Interest Payment Date, the Trustee shall determine the amount of Excess TDD Sales Tax Revenues. The Trustee shall give written notice of the amount of such Excess TDD Sales Tax Revenues to the City. The Trustee shall deposit all Excess TDD Sales Tax Revenues in the Debt Service Reserve Fund until the Debt Service Reserve Requirement is met and thereafter Excess TDD Sales Tax Revenues shall be deposited in the Redemption Account. Moneys in the Redemption Account shall be used by the Trustee to call for special mandatory redemption pursuant to Section 301(c) on an Interest Payment Date, the principal amount of Bonds that can be redeemed based upon the Excess TDD Sales Tax Revenues on deposit in the Redemption Account. Section 503. Payments Due on Saturdays, Sundays and Holidays. In any case where a Interest Payment Date is not a Business Day, then payment of principal, Redemption Price or interest need not be made on such Interest Payment Date but may be made on the next succeeding Business Day with the same force and effect as if made on such Interest Payment Date, and no interest shall accrue for the period after such Interest Payment Date. ARTICLE VI DEPOSIT AND INVESTMENT OF MONEYS Section 601. Deposits of Moneys. Moneys in each of the funds and accounts created by and referred to in this Indenture and held by the Trustee shall be continuously and adequately secured as provided by the laws of the State and invested in Permitted Investments as directed in writing by the Developer. All moneys deposited with or paid to the Trustee for the account of the various funds established under this Indenture shall be held by the Trustee in trust and shall be applied only in accordance with this Indenture. Section 602. Investment of Moneys. Moneys held under the Indenture in any fund or account referred to in this Indenture shall be invested by the Trustee as directed by the Developer in writing in Permitted Investments; provided, however, that no such investment shall be made for a period extending longer than the date when the moneys invested may be needed for the purpose for which such fund was created. All earnings on any investments held in any fund shall be deposited into the Debt Service Fund. ARTICLE VII REFUNDING BONDS Section 701. Refunding Bonds. The City shall have the right to refund all of the Bonds under the provisions of any law then available. The City shall have the right to refund 21

109 any portion of the Bonds, and the refunding bonds so issued shall enjoy complete equality of pledge with any of the Bonds that are not refunded, if any, upon the funds and accounts pledged under this Indenture. ARTICLE VIII GENERAL COVENANTS AND PROVISIONS Section 801. City to Issue Bonds and Execute Indenture. The City covenants that it is duly authorized under the Constitution and laws of the State of Kansas 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 City 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 802. Limited Obligations. The Bonds and the interest thereon shall be special, limited obligations of the City payable (except to the extent paid out of Bond proceeds or the income from the temporary investment thereof and proceeds) solely out of the TDD Sales Tax Revenues, and are secured by a transfer, 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 of Kansas 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 of Kansas or of any political subdivision thereof; but shall be payable solely from the TDD Sales Tax Revenues and the funds provided for in this Indenture. The issuance of the Bonds shall not, directly, indirectly or contingently, obligate the State of Kansas, the City or any political subdivision thereof to levy any form of taxation therefor or to make any appropriation for their payment. The State of Kansas 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 City. No breach by the City of any such pledge, mortgage, obligation or agreement may impose any liability, pecuniary or otherwise, upon the State of Kansas or any charge upon its general credit or against its taxing power. Section 803. Payment of Bonds. The City shall duly and punctually pay, 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 and this Indenture. Section 804. Performance of Covenants. The City shall (to the extent within its control) faithfully perform at all times any and all covenants, undertakings, stipulations and provisions contained in this Indenture, in the Bonds and in all proceedings pertaining thereto. Section 805. Inspection of Books. The City covenants and agrees that all books and documents in its possession relating to the Bonds, this Indenture and the Redevelopment 22

110 Agreement, and the transactions relating thereto shall at all reasonable times be open to inspection by 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, this Indenture and the Development Agreement, and the transactions relating thereto shall be open to inspection by the City during business hours upon reasonable notice. Section 806. Enforcement of Rights. The City 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 City may enforce all rights of the City and the Trustee and all obligations of the Developer under and pursuant to the Redevelopment Agreement and any other Financing Documents for and on behalf of the bondowners, whether or not the City is in default hereunder. The Development Agreement and all other Financing Documents shall be delivered to and held by the Trustee. ARTICLE IX DEFAULT AND REMEDIES Section 901. 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; or (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); or (c) default in the performance, or breach, of any covenant or agreement of the City in this Indenture (other than a covenant or agreement a default in the performance or breach of which is specifically dealt with elsewhere in this Section), and continuance of such default or breach for a period of 60 days after there has been given to the City and the Developer by the Trustee or to the City, the Developer and the Trustee by the owners of at least 10% 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 City 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. Anything herein contained to the contrary notwithstanding, nothing herein contained shall require the City to expend any funds of the City to remedy any default other than Revenues pledged to the payment of the Bonds. 23

111 With regard to any alleged default concerning which notice is given to the Developer under the provisions of this Section, the Developer hereby grants the City full authority for the account of the Developer to perform any covenant or obligation, the nonperformance of which is alleged in said notice to constitute a default, in the name and stead of the Developer, with full power to do any and all things and acts to the same extent that the City could do and perform any such things and acts in order to remedy such default. Section 902. 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 a majority in principal amount of the Bonds Outstanding shall, by written notice to the City and the Developer, 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 City, the Developer and the Trustee, rescind and annul such declaration and its consequences if: (a) the City has deposited with the Trustee a sum sufficient to pay: (1) all overdue installments of interest on all Bonds; (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 prescribed therefor in the Bonds; (3) interest upon overdue installments of interest at the rate prescribed therefor in the Bonds; and (4) 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 910 of this Indenture. No such rescission and annulment shall affect any subsequent default or impair any right consequent thereon. Section 903. Exercise of Remedies by the Trustee. Upon the occurrence and continuance of any event of default under this Indenture, unless the same is waived or cured 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: 24

112 (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 City 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 a majority in principal amount of Bonds Outstanding and if indemnified as provided in Section 1002(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 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 City or the Developer 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 907 hereof, be for the equal and ratable benefit of the owners of the Bonds in respect of which such judgment has been recovered. 25

113 (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 City, the Developer, 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 904. Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the City or any other obligor upon the Bonds or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Bonds shall then be due and payable, as therein expressed or by declaration or otherwise, and irrespective of whether the Trustee shall have made any demand on the City for the payment of overdue principal, premium or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise: (a) to file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the Outstanding Bonds and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the bondowners allowed in such judicial proceeding, and (b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each bondowner to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the bondowners, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any bondowner any plan of reorganization, arrangement, adjustment or composition affecting the Bonds or the rights of any owner thereof, or to authorize the Trustee to vote in respect of the claim of any bondowner in any such proceeding. Section 905. Limitation on Suits by Bondowners. No owner of any Bond shall have any right to institute any proceeding, judicial or otherwise, under or with respect to this Indenture, or for the appointment of a receiver or trustee or for any other remedy under this Indenture, unless: 26

114 (a) such owner has previously given written notice to the Trustee of a continuing event of default; (b) the owners of not less than a majority 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 Section 1002(e), Section 1002(k) and Section 1004 of 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 maturities 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 906. 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, provided indemnity has been provided to the Trustee in accordance with Section 1002(e), Section 1002(k) and Section 1004: (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; 27

115 (2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and (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 907. Application of Moneys Collected. Any moneys collected by the Trustee pursuant to this Article (after the deductions for payment of reasonable 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: (a) First: To the payment of all undeducted amounts due the Trustee under Section 1004 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 of the remainder, if any, to the City 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 908. 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 28

116 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. Section 909. Delay or Omission Not Waiver. 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 910. 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 City, on behalf of the owners of all the Bonds waive any past default hereunder and its consequences, except a default: (a) Bond; or in the payment of the principal of (or premium, if any) or interest on any (b) in respect of a covenant or provision hereof which under Article XI cannot be modified or amended without the consent of the owner of each Outstanding Bond affected. 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. ARTICLE X THE TRUSTEE Section 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 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. 29

117 (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 person would exercise or use under the circumstances in the conduct of its own affairs. (c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, 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 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 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 (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. (d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or conveying insights and duties or affording protection to the Trustee, whether in its capacity as Trustee, Paying Agent, bond registrar or any other capacity, shall be subject to the provisions of this Article X. Section Certain Rights of Trustee. Section 1001 of this Indenture: Except as otherwise provided in (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 Developer mentioned herein, the existence or nonexistence of any fact or the sufficiency or validity of any instrument, paper or proceeding, or that a resolution in the form therein set forth has been adopted by the Developer has been duly adopted, and is in full force and effect. 30

118 (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 an Officer s Certificate. (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) Notwithstanding anything in this Indenture to the contrary, the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture whether at the request or direction of any of the bondowners pursuant to this Indenture or otherwise, unless such bondowners or other party shall have offered to the Trustee reasonable security or indemnity satisfactory to the Trustee against the fees, advances, costs, expenses and liabilities (except as may result from the Trustee s own negligence or willful misconduct) which might be incurred by it in connection with such rights or powers. (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 City, 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 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 City or the Developer of any of the Bonds or the proceeds thereof or of any money paid to or upon the order of the City or the Developer 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 City or the Developer 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 to investments authorized and directed pursuant to Section 602 of this Indenture. 31

119 (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. (k) Notwithstanding anything elsewhere in this Indenture contained, before taking any action under this Indenture, the Trustee may require that satisfactory indemnity be furnished to it for the reimbursement of all reasonable costs and expenses to which it may be put and to protect it against all liability which it may incur in or by reason of such action. (l) The Trustee may elect not to proceed in accordance with the directions of the Bondowners without incurring any liability to the Bondowners if in the opinion of the Trustee such direction may result in environmental liability to the Trustee, in its individual capacity for which the Trustee has not received indemnity pursuant to Section 1002 and Section 1004 hereof from the Bondowners, and the Trustee may rely upon an Opinion of Counsel addressed to the City and the Trustee in determining whether any action directed by the bondowners may result in such liability. (m) The Trustee may inform the bondowners of environmental hazards that the Trustee has reason to believe exist, and the Trustee has the right to take no further action and, in such event no fiduciary duty exists, which imposes any obligation for further action with respect to the Trust Estate or any portion thereof if the Trustee, in its individual capacity, determines that any such action would materially and adversely subject the Trustee to environmental or other liability for which the Trustee has not received indemnity pursuant to Section 1002 and Section 1004 hereof. (n) The permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or its willful misconduct. (o) The Trustee shall not be required to give any bond or security in respect of the execution of the said trusts and powers or otherwise in respect to the premises. Section Notice of Defaults. The Trustee shall not be required to take notice or be deemed to have notice of any default hereunder, unless the Trustee shall be specifically notified in writing of such default by the City, the Developer, or the owners of at least 10% in principal amount of all Bonds Outstanding, 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 Trustee has received notice of any default or the occurrence of any default hereunder of which the Trustee is deemed to have notice, the Trustee shall give written notice of such default by first class mail to 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 of (or premium, if any) or interest on any Bond, the Trustee shall be protected in withholding such notice to the bondholders if and so long as the Trustee in good faith determines that the withholding of such notice is in the interests of the 32

120 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 as defined in Section 901. Section Compensation and Reimbursement. The Trustee shall be entitled to payment or reimbursement: (a) from time to time for reasonable compensation for all services (including extraordinary services if required) 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 reasonably incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel, as well as extraordinary costs and expenses), except any such expense, disbursement or advance as may be attributable to the Trustee s negligence or bad faith; and (c) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence 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 action, suit, demand, judgment, claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. 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 first lien prior to the Bonds, and shall have the right to use and apply any trust moneys held by it under Article IV hereof. Section Corporate Trustee Required; Eligibility. There shall at all times be a Trustee hereunder which shall be a 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. If such entity 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 entity 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 Resignation and Removal of Trustee. (a) The Trustee may resign at any time by giving written notice thereof to the City, the Developer, and each owner of Bonds Outstanding as shown by the list of bondowners required by this Indenture to be kept at the office of 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 33

121 Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee. (b) If the Trustee has or shall acquire any conflicting interest, it shall, within 90 days after ascertaining that it has a conflicting interest, or within 30 days after receiving written notice from the City that it has a conflicting interest, either eliminate such conflicting interest or resign in the manner and with the effect specified in subsection (a). (c) The Trustee may be removed at any time by the City or by an instrument or concurrent instruments in writing delivered to the City and the Trustee signed by the owners of a majority in principal amount of the Outstanding Bonds. (d) 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. (e) 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 Section 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 City, 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 City 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 City 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 manner herein provided, 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 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. 34

122 Section Acceptance of Appointment by Successor. Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the City 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 and the duties and obligations of the retiring Trustee shall cease and terminate; but, on request of the City 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. Upon request of any such successor Trustee, the City 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 Merger, Consolidation and Succession to Business. Any bank or association into which the Trustee may be merged or with which it may be consolidated, or any bank or association resulting from any merger or consolidation to which the Trustee shall be a party, or any bank 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 bank 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 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 City 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, protection, immunity, right or power deemed necessary or desirable, subject to the other provisions of this Section. If the City does not join in such appointment within 15 days after the receipt by it of a request so to do, or in 35

123 case an event of default has occurred and is continuing, the Trustee alone shall have power to make such appointment. Should any written instrument from the City 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 City. 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 City 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 City. Upon the written request of the Trustee, the City 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 Designation of Paying Agents. The Trustee is hereby designated and agrees to act as principal Paying Agent for and in respect to the Bonds. The City 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 36

124 funds hereunder for the payment of the principal of, premium, if any, and interest on the Bonds of any series, or at the principal corporate trust 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 City in connection with the appointment of any successor Trustee. ARTICLE XI SUPPLEMENTAL INDENTURES Section Supplemental Indentures Without Consent of Bondowners. Without the consent of the owners of any Bonds, the City and the Trustee may from time to time enter into one or more Supplemental Indentures for any of the following purposes: (a) 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; or (b) to add to the conditions, limitations and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of Bonds or of any series of Bonds, as herein set forth, additional conditions, limitations and restrictions thereafter to be observed; or (c) to evidence the appointment of a separate trustee or the succession of a new trustee under this Indenture; or (d) to add to the covenants of the City or to the rights, powers and remedies of the Trustee for the benefit of the owners of all Bonds or to surrender any right or power herein conferred upon the City; or (e) 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, which shall not be inconsistent with the provisions of this Indenture, provided such action shall not materially adversely affect the interests of the owners of the Bonds; or (f) 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 Supplemental Indentures with Consent of Bondowners. With the consent of the owners of not less than a majority in principal amount of the Bonds then Outstanding affected by such Supplemental Indenture, the City and the Trustee may enter into 37

125 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 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); or (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 compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences; or (c) modify the obligation of the City to make payment on or provide funds for the payment of any Bond; or (d) modify or alter the provisions of the proviso to the definition of the term Outstanding ; or (e) modify any of the provisions of this Section or Section 910, 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 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. 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 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 be entitled to receive, and, subject to Article X, shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such Supplemental Indenture is authorized and permitted by and in compliance with the terms of this Indenture. The Trustee may, but shall not be obligated to, enter into any such Supplemental Indenture which affects the Trustee s own rights, duties or immunities under this Indenture or otherwise. 38

126 Section 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. Section 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 City shall so determine, new Bonds so modified as to conform, in the opinion of the Trustee and the City, to any such Supplemental Indenture may be prepared and executed by the City and authenticated and delivered by the Trustee in exchange for Outstanding Bonds. ARTICLE XII SATISFACTION AND DISCHARGE Section 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 City 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 or other Paying Agent 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. The Bonds may be defeased in advance of their maturity or redemption dates only with Government Obligations pursuant to subsection (c) above, subject to receipt by the Trustee of (1) a verification report in form and substance satisfactory to the Trustee prepared by independent certified public accountants, or other verification agent, satisfactory to the Trustee, and (2) an Opinion of Counsel addressed and delivered to the Trustee in form and substance satisfactory to the Trustee 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 39

127 required to be paid under the provisions of this Indenture has been provided for in the manner set forth in this Indenture. The foregoing notwithstanding, the liability of the City 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 (either directly or through any Paying Agent, as the Trustee may determine) 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 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 of transfer or exchange of Bonds herein provided for) 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 1201; and (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. Thereupon, the Trustee shall execute and deliver to the City 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 City, 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 Rights Retained After Discharge. Notwithstanding the satisfaction and discharge of this Indenture, the rights of the Trustee under Section 1004 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 or any Paying Agent for the payment of the principal of, redemption premium, if any, or interest on any Bond remaining unclaimed for six 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 deposited in the City s general fund to be expended in accordance with the Act, and all liability of the Trustee or any Paying Agent or the City with respect to such moneys shall thereupon cease. 40

128 Section General Covenants. ARTICLE XIII TAX COVENANTS (a) The City covenants and agrees that (1) it will comply with all applicable provisions of the Code, including Sections 103 and 141 through 150, necessary to maintain the exclusion from gross income for federal income tax purposes of the interest on the Bonds and (2) it will not use or permit the use of any proceeds of Bonds or any other funds of the City, will not take or permit any other action, or fail to take any action, if any such action or failure to take action would adversely affect the exclusion from gross income of the interest on the Bonds. The City will, in addition, adopt such other ordinances or resolutions and take such other actions as may be necessary to comply with the Code and with all other applicable future laws, regulations, published rulings and judicial decisions, in order to ensure that the interest on the Bonds will remain excluded from federal gross income, to the extent any such actions can be taken by the City. (b) The City covenants and agrees that (1) it will make the proceeds of the Bonds available as soon as practicable and with all reasonable dispatch for the purposes for which the Bonds are issued, and (2) it will not invest or directly or indirectly use or permit the use of any proceeds of the Bonds or any other funds of the City in any manner, or take or omit to take any action, that would cause the Bonds to be arbitrage bonds within the meaning of Section 148(a) of the Code. (c) The City covenants and agrees that it will not use any portion of the proceeds of the Bonds, including any investment income earned on such proceeds, directly or indirectly, in a manner that would cause any Bond to be a private activity bond within the meaning of Section 141(a) of the Code, or to make or finance a loan to any Person other than the State or a political subdivision thereof. Section Rebate Covenants. The City covenants and agrees that it will pay or provide for the payment from time to time all amounts required to be rebated to the United States pursuant to Section 148(f) of the Code and the Tax Compliance Agreement. This covenant shall survive payment in full or defeasance of the Bonds. The Tax Compliance Agreement may be amended or replaced if, in the opinion of Bond Counsel such amendment or replacement will not adversely affect the exclusion from gross income for federal income tax purposes of interest on the Bonds. ARTICLE XIV MISCELLANEOUS PROVISIONS Section Compliance Certificates and Opinions. Upon any application or request by the City to the Trustee to take any action under any provision of this Indenture, the City shall furnish to the Trustee an Officer s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an 41

129 Opinion of Counsel, paid for by the Developer, stating that in the Opinion of Counsel rendering such opinion all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include: (a) a statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions herein relating thereto; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (c) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such condition or covenant has been complied with; and (d) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. Section Notices, Consents and Other Instruments by Registered Bondowners. Any notice, consent, request, direction, approval, objection or other instrument required by this Indenture to be signed and executed by the Registered Bondowners other than the assignment of the Bondownership of the Bonds, may be in any number of concurrent writings of similar tenor and may be signed or executed by such Registered Bondowners in person or by agent appointed in writing. Proof of the execution of any such instrument or of the writing appointing any such agent and of the ownership of the Bonds, if made in the following manner, shall be sufficient for any of the purposes of this Indenture, and shall be conclusive in favor of the City and the Trustee with regard to any action taken, suffered or omitted under any such instrument, namely: (a) The fact and date of the execution by any person of any such instrument may be proved by a certificate of any officer in any jurisdiction who by law has power to take acknowledgments within such jurisdiction that the person signing such instrument acknowledged before such officer the execution thereof, or by affidavit of any witness to such execution. (b) The fact of ownership of the Bonds, the amount or amounts, numbers and other identification of the Bonds, and the date of holding the same shall be proved by the Bond Register of the City maintained by the Trustee. In determining whether the Registered Bondowners of the requisite principal amount of Bonds Outstanding have given any request, demand, authorization, direction, notice, consent or waiver under this Indenture, Bonds registered in the name of the City shall be disregarded and deemed not to be Outstanding under this Indenture, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, 42

130 notice, consent or waiver, only Bonds so owned shall be so disregarded. Notwithstanding the foregoing, Bonds so owned which have been pledged in good faith shall not be disregarded as aforesaid if the pledgee establishes to the satisfaction of the Trustee the pledgee s right so to act with respect to such Bonds and that the pledgee is not the City. Section Further Authority. The officers of the City, including the City Administrator and the City Clerk, are hereby authorized and directed to execute all documents, including without limitation an agreement with the Trustee, and take such actions as they may deem necessary or advisable in order to carry out and perform the purposes of this Indenture and to make any changes or additions in this Indenture and the foregoing agreements, statements, instruments and other documents herein approved, authorized and confirmed which they determine to be in the City s best interest, and the execution or taking of such action shall be conclusive evidence of such determination. Section Severability. If any section or other part of this Indenture, whether large or small, is for any reason held invalid, the invalidity thereof shall not affect the validity of the other provisions of this Indenture. Section Governing Law. This Indenture shall be governed exclusively by and constructed in accordance with the applicable laws of the State. Section 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, upon receipt by such person if the same shall be delivered in person or duly mailed by registered or certified mail, postage prepaid, at the following addresses: To the Developer: Oak Park Mall, LLC CBL Center Suite Hamilton Place Boulevard Chattanooga, Tennessee With copies to: Lewis Pete A. Heaven, Jr. Lathrop & Gage, L.C Mastin Boulevard, Suite 1000 Overland Park, Kansas

131 To the City: City of Overland Park City Hall 8500 Santa Fe Drive Overland Park, Kansas Attention: City Manager With copies to: Robert Watson City Attorney City of Overland Park 8500 Santa Fe Overland Park, KS Janet S. Garms Kutak Rock, LLP 1010 Grand Blvd., Suite 500 Kansas City, MO To the Trustee: UMB Bank, N.A Grand Boulevard, 4 th Floor Kansas City, Missouri Attention: Corporate Trust Department or at such other addresses as the parties may indicate in writing to the other either by personal delivery, courier, or by registered mail, return receipt requested, with proof of delivery thereof. Mailed notices shall be deemed effective on the third day after mailing; all other notices shall be effective when delivered. Notices to Bondowners shall be given by first-class mail at the address of each Bondowner as shown on the Bond Register maintained by the Trustee. 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 the other Bondowners. Section Execution in Counterparts. This Indenture may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section Electronic Storage. The parties hereto agree that the transaction described herein may be conducted and related documents may be stored by electronic means. Copies, telecopies, facsimiles, electronic files and other reproductions of original executed documents shall be deemed to be authentic and valid counterparts of such original documents for all purposes, including the filing of any claim, action or suit in the appropriate court of law. 44

132 IN WITNESS WHEREOF, the City and the Trustee have caused this Trust Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, by their duly authorized officers, all as of the day and year first above written. CITY OF OVERLAND PARK, KANSAS (Seal) By: Carl Gerlach, Mayor ATTEST: By: Marian Cook City Clerk

133 IN WITNESS WHEREOF, the City and the Trustee have caused this Trust Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, by their duly authorized officers, all as of the day and year first above written. UMB BANK, N.A. as Trustee By: Name: Title: (SEAL) ATTEST: By: Name: Title:

134 EXHIBIT A TRANSPORTATION PROJECT The general nature of the Transportation Project is to improve, construct, reconstruct, maintain, restore, replace, renew, repair, install, furnish, equip, or extend any streets, roads, highway access roads, interchanges, intersections, signings, signalization, or any other transportation-related project or infrastructure. The components of the Transportation Project are generally described as: A-1

135 EXHIBIT B FORM OF BOND REGISTERED NUMBER R- REGISTERED $ THE UNITED STATES OF AMERICA CITY OF OVERLAND PARK, KANSAS TRANSPORTATION DEVELOPMENT DISTRICT SALES TAX REVENUE BONDS SERIES 2010 (OAK PARK MALL PROJECT) Interest Rate Maturity Date Dated CUSIP REGISTERED OWNER: TAX I.D. NO.: PRINCIPAL AMOUNT: The City of Overland Park, Kansas (the Issuer ), for value received, hereby promises to pay (but only out of the TDD Sales Tax Revenues, as defined in the Trust Indenture hereinafter mentioned, and other assets pledged therefore as hereinafter mentioned) to the Registered Owner identified above, or registered assigns, on the Maturity Date identified above (subject to any right of prior redemption hereinafter mentioned), the Principal Amount identified above in lawful money of the United States of America; and to pay interest in like lawful money until payment of such Principal Amount shall be discharged as provided in the Indenture, at the Interest Rate per annum as set forth above, payable on February 1 and August 1 (or, if such day is not a Business Day, on the next succeeding Business Day) in each year, commencing August 1, 2010 (each, an Interest Payment Date ). The principal hereof is payable upon presentation hereof upon maturity, redemption or acceleration, at the designated corporate trust office of UMB Bank, N.A., Kansas City, Missouri (together with any successor as paying agent under the Indenture, the Trustee and the Paying Agent ). Interest hereon is payable by check or draft mailed to the Registered Owner hereof, or by wire transfer if the Registered Owner hereof owns at least $500,000 in aggregate principal amount of Bonds as provided in the Indenture. Such interest is payable to the person whose name appears on the bond registration books of the Trustee, as Bond Registrar, as the Registered Owner hereof as of the close of business on the fifteenth (15 th ) day (whether or not a Business Day) of the calendar month next preceding an Interest Payment Date, at such person s address as it appears on such registration books. Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Trust Indenture dated as of May 1, 2010 (the Indenture ), by and between the Issuer and the Trustee. B-1

136 This Bond is being issued pursuant to the provisions of K.S.A ,140 et seq. as amended and supplemented (the Act ). The Bonds are special obligations of the City payable solely from and secured as to payment of principal and interest from a pledge of revenues received from the imposition of a transportation development district sales tax in the amount of one-half of one percent (.5%) (the TDD Sales Tax ) on the selling of tangible personal property at retail or rendering or furnishing services taxable pursuant to the provisions of the Kansas Retailer's Sales Tax Act on property located within the Oak Park Mall Transportation Development District (the Oak Park Mall TDD ) created by the Issuer by Resolution No adopted on September 17, 2007, in accordance with the Act. The Bonds are in conformity with the provisions, restrictions and limitations of the Act. The Bonds mature no more than twenty (20) years from the date of issuance. The Bonds constitute valid and legally binding special obligations of the Issuer, payable solely from the TDD Sales Tax as described in the Indenture. The Bonds are not general obligations of the Issuer, the State of Kansas or any political subdivision thereof and neither the full faith and credit nor the general taxing power of the Issuer, the State of Kansas, or any political subdivision thereof is pledged to the payment of the Bonds. The Bonds do not give rise to a charge against the general credit or taxing powers of the Issuer. This Bond is one of a duly authorized issue of bonds of the Issuer designated as City of Overland Park Transportation Development District Sales Tax Revenue Bonds, Series 2010 (Oak Park Mall Project) (the Bonds ), issued in the original principal amount of $, pursuant to the provisions of an ordinance of the Issuer passed on (the Ordinance ), and pursuant to the Indenture. The Bonds are issued for the purpose of (i) financing the construction of certain transportation development district projects as more fully described in the Ordinance and the Indenture (the "Project") within the Oak Park Mall TDD (ii) funding a reserve fund and (iii) paying certain costs relating to issuance of the Bonds; Reference is hereby made to the Indenture (copy of which is on file at the corporate trust office of the Trustee in Kansas City, Missouri) and all indentures and agreements supplemental thereto and to the Ordinance for a description of the rights thereunder of the Bondholders of the Bonds of the nature and extent of the security, of the rights, duties and immunities of the Trustee and of the rights and obligations of the Issuer thereunder, to all the provisions of which the Bondholder of this Bond, by acceptance hereof, assents and agrees. The Bonds and the interest thereon are payable from the TDD Sales Tax that are available to the Trustee pursuant to the Indenture, as and to the extent provided in the Indenture. The Bonds and the interest thereon are secured by a pledge and assignment of the TDD Sales Tax and of amounts held in certain funds and accounts established pursuant to the Indenture, subject only to the provisions of the Indenture permitting the application thereof for the purposes and on the terms and conditions set forth in the Indenture. Redemption Provisions Optional Redemption. At the option of the City, the Bonds are subject to redemption and payment prior to their Stated Maturity by the Trustee on April 1, 20 or any date thereafter, in B-2

137 whole or in part, in such principal amounts representing Authorized Denominations, at the redemption price of 100% (expressed as a percentage of the principal amount) plus accrued interest thereon to the Redemption Date. Selection of maturities and the amount of Bonds of each maturity to be redeemed will be determined by the City in such equitable manner as it may determine. Mandatory Redemption from Moneys in the Project Fund. The Bonds are subject to mandatory redemption by the Trustee on any date, at the redemption price of 100% of the principal amount being redeemed, together with accrued interest thereon to the Redemption Date from moneys remaining in the Project Fund on the earlier completion of the Transportation Project or April 1, Special Mandatory Redemption. The Bonds are subject to special mandatory redemption on an Interest Payment Date by the Trustee, at a redemption price equal to 100% of the principal amount thereof plus accrued interest to the redemption date, in an amount equal to the amount which is on deposit in the Redemption Account of the Debt Service Fund in excess of $50,000 (rounded to the nearest $5,000) forty-five (45) days prior to each Interest Payment Date (or if such date is not a Business Day, the immediately preceding Business Day). The Bonds are also subject to special mandatory redemption by the Trustee in whole but not in part, on any date in the event that moneys in the Debt Service Fund, the Redemption Account and the Debt Service Reserve Fund are sufficient to redeem all of the Bonds then Outstanding at a redemption price of 100% of the principal amount of the Bonds Outstanding, together with accrued interest thereon to the date fixed for redemption. Mandatory Sinking Fund Redemption. The Bonds maturing on April 1, and April 1, 2032 * are term Bonds and are subject to mandatory redemption prior to maturity, by lot, at a redemption price equal to the principal amount thereof to be redeemed, plus accrued interest to the date fixed for redemption, in the principal amounts and on February 1 of the years set forth below: 8 Preliminary, subject to change. B-3

138 2020 Term Bond Year Principal Amount *Final Maturity , , , , , , , , , ,000 * 2032 Term Bond Year Principal Amount , , , , , ,000, ,115, ,205, ,390, ,540, ,700, ,390,000 * *Final Maturity If this Bond is called for redemption and payment is duly provided therefor as specified in the Indenture, interest shall cease to accrue hereon from and after the date fixed for redemption. Notice of optional redemption of Bonds shall be given by mail to the Registered Owners of Bonds to be redeemed not less than thirty (30) days prior to the date fixed for redemption. B-4

139 It is hereby certified and recited that any and all conditions, things and acts required to exist, to have happened and to have been performed precedent to and in the issuance of this Bond do exist, have happened and have been performed in due time, form and manner as required by the Indenture and by the Constitution and laws of the State, and that the amount of this Bond is not in excess of the amount of Bonds permitted to be issued under the Indenture. This Bond shall not be entitled to any benefit under the Indenture, or become valid or obligatory for any purpose, until the certificate of authentication hereon shall have been signed by the Trustee. B-5

140 IN WITNESS WHEREOF, the Issuer has caused this Bond certificate 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 official seal to be affixed hereto or imprinted hereon, and has caused the Bonds to be dated the Dated Date shown herein. CITY OF OVERLAND PARK, KANSAS (Seal) By: Mayor ATTEST: By: City Clerk B-6

141 (FORM OF TRUSTEE S CERTIFICATE OF AUTHENTICATION) This Bond certificate evidences ownership of the City of Overland Park, Kansas, Transportation Development District Sales Tax Revenue Bonds, Series 2010 (Oak Park Mall Project), as described herein and in the within-mentioned Trust Indenture. The date of authentication of this Bond is. UMB BANK, N.A. as Trustee Registration No. By: Authorized Signature B-7

142 CERTIFICATE OF STATE TREASURER OFFICE OF THE TREASURER, STATE OF KANSAS I, the undersigned, Treasurer of the State of Kansas, hereby certify that a transcript of the proceedings leading up to the issuance of this Bond has been filed in my office, and that this Bond was registered in my office according to law on this day of, WITNESS my hand and official seal. By: Treasurer of the State of Kansas (SEAL) B-8

143 (FORM OF ASSIGNMENT) For value received, the undersigned hereby sells, assigns and transfer unto Print or Type Name and Address of Transferee the Bonds represented by this certificate and all rights thereunder, and hereby authorizes the transfer of the within Bond on the books kept by the Bond Registrar and Paying Agent for the registration and transfer of Bonds. 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. Signature Guaranteed By: [Seal of Bank] (Name of Eligible Guarantor Institution) By: Title: Signature must be guaranteed by an eligible guarantor institution as defined by S.E.C. Rule 17 Ad-15 (17 C.F.R Ad-15) B-9

144 EXHIBIT C TO TRUST INDENTURE Request No: Date: WRITTEN REQUEST (Section COSTS OF ISSUANCE FUND) To: UMB Bank, N.A., as Trustee Kansas City, Missouri Re: $16,800,000 * City of Overland Park, Kansas Transportation Development District Sales Tax Revenue Bonds, Series 2010 (Oak Park Mall Project) You are hereby requested and directed as Bond Trustee under the Trust Indenture dated as of May 1, 2010 (the Bond Indenture ), between the City of Overland Park, Kansas and you, as Bond Trustee, to pay from moneys in the Costs of issuance Fund, pursuant to Section 406 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 Authorized Developer Representative hereby states and certifies that each item listed above is a proper Costs 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. OAK PARK MALL, LLC By: Title: Authorized Developer Representative CITY OF OVERLAND PARK, KANSAS * Preliminary, subject to change. By: Title: Authorized City Representative C-1

145 EXHIBIT D TO TRUST INDENTURE WRITTEN REQUEST (Section 403 PROJECT FUND) CERTIFICATION OF EXPENDITURE To: UMB Bank, N.A., as Trustee Kansas City, Missouri Re: $16,800,000 * City of Overland Park, Kansas Transportation Development District Sales Tax Revenue Bonds, Series 2010 (Oak Park Mall Project) You are hereby requested and directed as Bond Trustee under the Trust Indenture dated as of May 1, 2010 (the Indenture ), between the City of Overland Park, Kansas and you, as Bond Trustee, to pay from moneys in the Project Fund, pursuant to Section 403 of the Bond Indenture, to the Developer for payment to the following payees the following amounts for the following Transportation Project Costs (as defined in the Indenture): Description of Transportation Payee Amount Project Costs The undersigned Authorized Developer Representative and General Contractor hereby state and certify that: 1. The amount to be paid is $. 2. The obligation to be paid under this Written Request was properly incurred and is a proper Transportation Project Cost payable from the Project Fund. 3. With respect to items covered by this Requisition, there are no vendors, mechanics, or other liens, bailment leases or conditional sales contracts which should be satisfied or discharged before the payments as requisitioned herein are made, or which will not be discharged before the payments requisitioned herein are made, or which will not be discharged by such payment. 4. The amount remaining in the Project Fund after the payment of this Written Request, together with other amounts reasonably expected to be available therefor, will be sufficient to pay all remaining Transportation Project Costs to be sought for reimbursement. 5. No Event of Default has occurred and is continuing and no event or condition has occurred which, with notice or passage of time or both, would constitute an Event of Default. * Preliminary, subject to change. D-1

146 6. Attached hereto is a summary statement setting forth, with respect to each budget category of Transportation Project Costs in question, the then current estimate of costs relating thereto and the total amount heretofore disbursed with respect to such budget category (exclusive of the amount being requisitioned hereby). 7. Each item listed above is a valid cost under the Kansas Transportation Development District Act and a proper Transportation Project Cost (as defined in the Indenture) that was incurred in the acquisition, construction, renovation, remodeling, expansion, completion or equipping of portions of the Transportation Project in accordance with the Plans and Specifications, if required. 8. Each item listed above has not previously been paid or reimbursed from moneys in the Project Fund and no part thereof has been included in any other Written Request previously filed with the Bond Trustee under the provisions of the Indenture or reimbursed to the Developer from Bond proceeds. OAK PARK MALL, LLC By: Title: Authorized Developer Representative GENERAL CONTRACTOR By: Title: APPROVED: CITY OF OVERLAND PARK, KANSAS By: Title: Authorized City Representative D-2

147 APPENDIX C MAP OF TRANSPORTATION DEVELOPMENT DISTRICT

148 (THIS PAGE LEFT BLANK INTENTIONALLY)

149 APPENDIX C MAP OF TRANSPORTATION DEVELOPMENT DISTRICT ((Transportation Districted outlined in yellow) ) TDD Outparcel List 1 Outback Steakhouse 7 Chick-fil-A Restaurant 2 Mimi's Café 8 AT&T Phone Store 3 Cheddar's Restaurant 9 Sonic Restaurant (under construction, 4 On the Border Restaurant to open April 2010) 5 TGI Friday's Restaurant 10 Future Oak Park Plaza restaurant site 6 Macy's Furniture Galleries A Future Oak Park Plaza retail site W 95 th ST Hillcrest Bank (not in TDD) QUIVRA RD JC Penney Dillard s South Dillard s North Macy s NIEMAN RD Nordstrom W 97 th ST Future Oak Park Plaza Target Store (not in TDD) W 99 th ST