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Phase I Project Completion GuarantyCOMPLETION GUARANTY This Completion Guaranty ("Guaranty") is made effective as of the edgy of MAS , 2024, by Salina Destination Development, LLC, a Kansas limited liability company (the "Guarantor" or the "Developer") in favor of The City of Salina, Kansas (the "City"). PRELIMINARY STATEMENTS A. Guarantor and the City entered into that certain Development Agreement (Phase One Project) dated November 6, 2023 (as may be amended, the "Development Agreement"), regarding Guarantor's development of the Phase One Project (as defined in the Development Agreement). B. To ensure completion of the Phase One Project, the City requires that Guarantor execute and deliver this Guaranty. C. Capitalized words used in this Guaranty and not defined herein shall have the meanings set forth in the Development Agreement. D. NOW, THEREFORE, in consideration of the foregoing and in consideration of the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: GUARANTY 1.1 Guaranty of Performance. For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Guarantor guaranties the full performance of, and agrees to Substantially Complete, the development and construction of the Phase One Project in accordance with Development Agreement (the "Completion Obligation"). Guarantor's satisfaction of the Completion Obligation shall occur when the City issues to Guarantor a final certificate of occupancy for the Phase One Project in substantial conformity with Guarantor's Construction Plans. If the Completion Obligation is not complied with, in any respect whatsoever, and without the necessity of any notice from City to Guarantor, Guarantor agrees to (i) notify the City of such non- compliance in writing ("Non -Compliance Notice"); (ii) assume all responsibility for the completion of the Phase One Project and satisfaction of the Completion Obligation; and (iii) cause the Phase One Project to be fully completed in accordance with the Development Agreement; and (iv) pay all bills in connection with the construction and Substantial Completion of the Phase One Project, provided however that Developer shall have the right to (a) contest in good faith and pursue to resolution with reasonable diligence the validity of any such bills, and (b) withhold payment until resolution of such contest. Notwithstanding anything to the contrary provided in this Guaranty, although Guarantor's obligations hereunder exist as of the date hereof, Guarantor shall not be required to complete construction of the Phase One Project pursuant to the terms of this Guaranty until City provides Guarantor with written demand for such performance. Guarantor shall commence satisfaction of such Substantial Completion of construction within thirty (30) days after receipt of written demand for performance by City. 1.2 City's Remedies. During the existence of an Event of Default, City may bring any action at law or in equity or both, or commence any arbitration proceeding to compel Guarantor to perform the Completion Obligation. Notwithstanding any other provision of this Guaranty, in no event will Guarantor or its members, officers, employees, agents or independent contractors ever be liable for any punitive, special, incidental, or consequential damages in connection with this Guaranty. For purposes of this section, consequential damages include, but are not limited to, lost profits, lost tax revenue, or other similar losses which are not direct out-of-pocket costs incurred by the City. City from time to time may bring such an action or commence such an arbitration proceeding, regardless of whether City has first required performance by Guarantor. 1.3 Absolute Guaranty. Guarantor expressly agrees that until the Phase One Project is fully completed in accordance with the Development Agreement and each and every term, covenant and condition of this Guaranty is fully performed, Guarantor shall not be released by or because of. (a) Any act or event which might otherwise discharge, reduce, limit or modify Guarantor's obligations under this Guaranty; (b) Any waiver, extension, modification, forbearance, delay or other act or omission of City, or its failure to proceed promptly or otherwise as against Developer or Guarantor; and (c) Any action, omission or circumstance which might increase the likelihood that Guarantor may be called upon to perform under this Guaranty or which might affect the rights or remedies of Guarantor as the Developer. Guarantor hereby acknowledges that absent this Section 1.3, Guarantor might have a defense to the enforcement of this Guaranty as a result of one or more of the foregoing acts, omissions, agreements, waivers or matters. Guarantor hereby expressly waives and surrenders any defense to any liability under this Guaranty based upon any of such acts, omissions, agreements, waivers or matters. It is the express intent of Guarantor that Guarantor's obligations under this Guaranty are and shall be absolute, unconditional and irrevocable. 1.4 Guarantor's Waivers. Excluding the Non -Compliance Notice (as defined in Section 1.1 of this Guaranty), Guarantor waives: (a) notice of acceptance of this Guaranty; (b) demand of payment, notice of nonperformance, notice of dishonor, presentation, protest, and indulgences and notices of any kind whatsoever (other than notices required by the Development Agreement or applicable law); (c) all rights to assert or plead any statute of limitations as to or relating to the Development Agreement (and Guarantor agrees that any act which shall toll any statute of limitations applicable to the Developer's obligations under the Development Agreement shall similarly operate to toll the statute of limitations applicable to Guarantor's liability hereunder); (d) any right to require City to proceed against Developer or any other person or entity liable to City; (e) any right to require City to pursue any other remedy City may have before proceeding against Guarantor; (g) any defense that may arise by the reason of (i) the incapacity, lack of authority, disability or other defense of Developer; (ii) the revocation or repudiation of this Guaranty by Guarantor; (iii) failure of City to file or enforce a claim against the estate (either in bankruptcy or any other proceeding) of Developer; (iv) City's election of any remedy against Guarantor hereunder or Developer under the Development Agreement or both; (v) any action or omission by City that directly or indirectly results in or aids the discharge of Guarantor as the Developer by operation of law; and (vi) any offset by Guarantor against any obligation now or at any time owed to Guarantor as the Developer, it being the intention of this Guaranty that Guarantor remain liable to the full extent set forth in this Guaranty until such time as each building comprising the Phase One Project shall have received a final certificate of occupancy, or its equivalent from the applicable governmental authority. 1.5 Subordination of Guaranty. This Guaranty shall be subject to and subordinate at all times to the lien of any mortgage, deed of trust, and any and all liens and security interests securing any indebtedness owed to any lender of the Phase One Project. This clause shall be self operative, and no further instrument of subtordination shall be required to affect the subordination of this Guarantee. If required by any lender of the Phase One Project, City shall execute and deliver to Guarantor any document reasonably required by such lender to recognize such subordination. 1.6 No Waiver. No provision or waiver in this Guaranty shall be construed as limiting the generality of any other provision or waiver contained in this Guaranty. 1.7 Revival and Restatement. If City is required to pay, return or restore to Developer or any other person any amounts previously paid on the Completion Obligation because of any bankruptcy, insolvency or other similar proceeding instituted by or against Developer, any stop notice or any other reason, the obligations of Guarantor hereunder shall be reinstated and revived and the rights of City shall continue with regard to such amounts, all as though they had never been paid. 1.8 Guarantor's Representations and Warranties. Guarantor represents and warrants that: (a) There has been no material adverse change in Guarantor's financial condition since the Effective Date of the Development Agreement; (b) This Guaranty is duly authorized and valid, and is binding upon and enforceable against Guarantor; (c) Guarantor is not, and the execution, delivery and performance by Guarantor of this Guaranty will not cause Guarantor to be, in violation of or in default with respect to any law or in default (or at risk of acceleration of indebtedness) under any material agreement or restriction by which Guarantor is bound or affected; (d) There is no litigation pending or, to the knowledge of Guarantor, threatened before or by any tribunal against or affecting Guarantor, which, if adversely determined, would have a material adverse effect on the financial condition of Guarantor or would adversely impact the development of the Project; Guarantor's representations, warranties and covenants are a material inducement to City to enter into the Development Agreement and shall survive the execution hereof and any bankruptcy, or other event affecting Developer, Guarantor, or any other party. 1.9 Events of Default. City may declare Guarantor to be in default under this Guaranty upon the occurrence of any of the following events (each an "Event of Default"): (a) Guarantor fails to pay or perform any of its obligations under this Guaranty, as and when due and payable or due to be performed hereunder, within thirty (30) days of receiving prior written notice of such failure from City; or (b) Guarantor revokes this Guaranty or this Guaranty becomes ineffective for any reason (other than termination pursuant to the terms hereof or any other termination by City); or (c) Any representation or warranty made or given by Guarantor to City proves to be false or misleading in any material respect when made; or (d) Guarantor becomes insolvent or the subject of any insolvency proceeding, provided, however, if such insolvency proceeding is an involuntary proceeding filed against Guarantor, Guarantor shall not be in default herewith if such proceedings is dismissed within 90 days of filing. 1.10 Governing Law; Forum; Consent to Jurisdiction. This Guaranty is an agreement executed under seal. The validity, enforcement, and interpretation of this Guaranty, shall for all purposes be governed by and construed in accordance with the laws of the State of Kansas and applicable United States federal law, and is intended to be performed in accordance with, and only to the extent permitted by, such laws. All obligations of Guarantor hereunder are performable at the place or places where the Completion Obligation is performable. THE GUARANTOR AND CITY HEREBY IRREVOCABLY CONSENT TO THE JURISDICTION OF THE STATE COURTS OF KANSAS AND THE FEDERAL COURT IN KANSAS, AND AGREE THAT ANY ACTION OR PROCEEDING ARISING OUT OF OR BROUGHT TO ENFORCE THE PROVISIONS OF THIS GUARANTY OR THE DEVELOPMENT AGREEMENT SHALL BE BROUGHT IN THE STATE COURTS OF SALINE COUNTY, KANSAS, OR THE FEDERAL COURT FOR KANSAS. Guarantor and City hereby irrevocably waive, to the fullest extent permitted by law, any objection that Guarantor or City may now or hereafter have to the laving of venue in any such court and any claim that any such court is an inconvenient forum. Final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon Guarantor and City and may be enforced in any court in which Guarantor or City is subject to jurisdiction. 1.11 Invalidity of Certain Provisions. If any provision of this Guaranty or the application thereof to any person or circumstance shall, for any reason and to any extent, be declared to be invalid or unenforceable, neither the remaining provisions of this Guaranty nor the application of such provision to any other person or circumstance shall be affected thereby, and the remaining provisions of this Guaranty, or the applicability of such provision to other persons or circumstances, as applicable, shall remain in effect and be enforceable to the maximum extent permitted by applicable law. 1.12 Attorneys' Fees. In case a lawsuit shall be brought because of the breach or alleged breach of any agreement or obligation contained in this Guaranty on the part of either party to be kept or performed, the prevailing party shall be entitled to recover its reasonable attorneys' fees and expenses in connection with such lawsuit. 1.13 Notices. All notices, requests, consents, demands and other communications required or which any party desires to give hereunder shall be in writing and shall be deemed sufficiently given or furnished if delivered in accordance with the notice provisions of the Development Agreement with respect to Guarantor (as Developer thereunder) and with respect to the City (as the City party thereunder). Any such notice or communication shall be deemed to have been given if given as notice is required under the Development Agreement; provided that, service of a notice required by any applicable statute shall be considered complete when the requirements of that statute are met. Notwithstanding the foregoing, no notice of change of address shall be effective except upon actual receipt. This Section shall not be construed in any way to affect or impair any waiver of notice or demand provided in this Guaranty or to require giving of notice or demand to or upon any person in any situation or for any reason. 1.14 Cumulative Rights. The exercise by City of any right or remedy hereunder, or at law or in equity, shall not preclude the concurrent or subsequent exercise of any other right or remedy. No waiver of any default on the part of Guarantor or of any breach of any of the provisions of this Guaranty or of any other document shall be considered a waiver of any other or subsequent default or breach, and no delay or omission in exercising or enforcing the rights and powers granted herein or in any other document shall be construed as a waiver of such rights and powers, and no exercise or enforcement of any rights or powers hereunder or under any other document shall be held to exhaust such rights and powers, and every such right and power may be exercised from time to time. The granting of any consent, approval or waiver by City shall be limited to the specific instance and purpose therefor and shall not constitute consent or approval in any other instance or for any other purpose. No notice to or demand on Guarantor in any case shall of itself entitle Guarantor to any other or further notice or demand in similar or other circumstances. No provision of this Guaranty or any right, remedy or recourse of City with respect hereto, or any default or breach, can be waived, nor can this Guaranty or Guarantor be released or discharged in any way or to any extent, except specifically in each case by a writing intended for that purpose (and which refers specifically to this Guaranty) executed, and delivered to Guarantor, by City. 1.15 Time of Essence. Time shall be of the essence in this Guaranty with respect to all of Guarantor's obligations hereunder. 1.16 Entire Agreement. This Guaranty embodies the entire agreement between City and Guarantor with respect to the Completion Obligation, except as provided in the Development Agreement. This Guaranty supersedes all prior agreements and understandings, if any, with respect to the guaranty by Guarantor of the Completion Obligation. No condition or conditions precedent to the effectiveness of this Guaranty exist. This Guaranty shall be effective upon execution by Guarantor and delivery to City. This Guaranty may not be modified, amended or superseded except in a writing signed by City and Guarantor 4 referencing this Guaranty by its date and specifically identifying the portions hereof that are to be modified, amended or superseded. 1.17 WAIVER OF JURY TRIAL. GUARANTOR AND CITY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, WAIVE TRIAL BY JURY IN RESPECT OF ANY DISPUTE AND ANY ACTION ON ANY ACTION UNDER THIS GUARANTY THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY GUARANTOR AND CITY, AND GUARANTOR AND CITY HEREBY REPRESENT THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY PERSON OR ENTITY TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THE DEVELOPMENT AGREEMENT. GUARANTOR AND CITY ARE EACH HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER OF JURY TRIAL. GUARANTOR FURTHER REPRESENTS AND WARRANTS THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS GUARANTY AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. 1.18 Termination. This Guaranty shall terminate and the Completion Obligation shall be extinguished without further action or notice of any party at such time as each building comprising the Phase One Project shall have received a final certificate of occupancy or its equivalent from the applicable governmental authority. The parties acknowledge that Guarantor is not guaranteeing the operational performance of the Phase One Project. 1.19 No Personal Liability. No member, manager, official, officer or employee of Guarantor shall be personally liable to City, or any successor in interest, in the event of any failure of performance or default or breach by Guarantor or for any amount which may become due to the City or to its successor, or for breach of any obligation of the terms of this Guaranty. [REMAINDER OF THIS PAGE LEFT BLANK] IN WITNESS WHEREOF, the Guarantor has executed, sealed and delivered this Guaranty as of the date first above written. GUARANTOR: On this da of 'l,,y� y ����/+ { 4 , 2o -before me personally appeared � Vo me known to be the person described in arid who qxecuted the foregoing instrument, who being by me duly sworn, did say such person is the )OLIXV of SALINA DESTINATION DEVELOPMENT, LLC, a Kansas limited IiAility company, and acknowledged said instrument to be such person's free act and deed and the free act and deed of said entity. IN WITNESS WHEREOF, l have hereunto set my hand and affixed my notarial seal the day and year last above written. My Com ission Expires: 4 1 Print Name: Notary Public i and or aid oun y and State LAUREN TOWNS SWEET NOTARY PUBLIC -NOTARY SEAL STATE OF MISSOURI JACKSON COUNTY MY COMMISSION EXPIRES 7/14/2024 COMMISSION # 20032086 0 SALINA DESTINATION DEVELOPMENT, LLC, a Kansas limited liability company By: (/LA "---_ Name: l A STATE OF l�.'1�{'� ) Title: /H �.M{7Qr ss. COUNTY OF MMOD) On this da of 'l,,y� y ����/+ { 4 , 2o -before me personally appeared � Vo me known to be the person described in arid who qxecuted the foregoing instrument, who being by me duly sworn, did say such person is the )OLIXV of SALINA DESTINATION DEVELOPMENT, LLC, a Kansas limited IiAility company, and acknowledged said instrument to be such person's free act and deed and the free act and deed of said entity. IN WITNESS WHEREOF, l have hereunto set my hand and affixed my notarial seal the day and year last above written. My Com ission Expires: 4 1 Print Name: Notary Public i and or aid oun y and State LAUREN TOWNS SWEET NOTARY PUBLIC -NOTARY SEAL STATE OF MISSOURI JACKSON COUNTY MY COMMISSION EXPIRES 7/14/2024 COMMISSION # 20032086 0