8318 IRB Connally Implement(Published in the
10-30-73
RoveMtrl 3 A , 1973)
1. ORDINANCE NO. �3 I?
AN ORDINANCE AUTHORIZING AND DIRECTING THE
CITY OF SALINA, KANSAS, TO ACQUIRE A TRACT OF
LAND IN SALINE COUNTY, KANSAS, TOGETHER WITH
THE EXISTING IMPROVEMENTS THEREON, FOR IN-
DUSTRIAL DEVELOPMENT PURPOSES; AUTHORIZING THE
PAYMENT OF THE COST OF IMPROVING, ENLARGING,
CONSTRUCTING AND EQUIPPING INDUSTRIAL FACILITIES
THEREON; AUTHORIZING AND DIRECTING THE ISSUANCE
OF $265,000.00 PRINCIPAL AMOUNT OF INDUSTRIAL
DEVELOPMENT REVENUE BONDS OF SAID CITY FOR THE
PURPOSE OF PAYING THE COST OF PURCHASING, IM-
PROVING, ENLARGING, CONSTRUCTING AND EQUIPPING
SUCH INDUSTRIAL FACILITIES; PRESCRIBING THE
FORM AND DETAILS OF SAID INDUSTRIAL DEVELOPMENT
REVENUE BONDS; PROVIDING FOR THE COLLECTION,
SEGREGATION AND APPLICATION OF THE REVENUES OF
SUCH FACILITY FOR THE PURPOSES AUTHORIZED BY
LAW; PLEDGING SAID FACILITY AND THE REVENUES
FROM SAID FACILITY TO SECURE SUCH BONDS; PRO-
VIDING FOR A TRUSTEE AND PRESCRIBING THE POWERS
AND DUTIES OF SUCH TRUSTEE; AND PRESCRIBING THE
FORM AND AUTHORIZING THE EXECUTION OF A LEASE
AND AGREEMENT BY, BETWEEN AND AMONG SAID CITY
AS -LANDLORD, THE HILL COMPANY, AS TENANT, AND
CONNALLY IMPLEMENT SUPPLY CO., INC., AS GUARANTOR.
0
WHEREAS, the City of Salina, Kansas, a city of the first
class, hereinafter sometimes referred to as the "City," desires to
promote, stimulate and develop the general economic welfare and pros-
perity of the City of Salina, Kansas, and its environs and thereby
to further promote, stimulate and develop the general economic welfare
and prosperity of the State of Kansas; and
WHEREAS, pursuant to the provisions of K.S.A. Sections
12-1740 to 12-1749, inclusive, and all acts amendatory and supplemental
thereof, said City is authorized to issue industrial development
revenue bonds of the City, and it is hereby found and determined to
be advisable and in the interest and for the welfare of the City and
its inhabitants that ;ndustrial development revenue bonds of the City
in the principal amount of $265,000.00 be authorized and issued, for
the purpose of providing funds to pay the cost of acquiring certain
real estate in Saline County, Kansas, together with the existing
?mpr„ve,,ent.^ th-ri^.on, and of _�ur:�-.,asinf , improving. ";:�.� 'r� ,
strutting and equipping industrial facilities thereon to be leased
to The Hill Company, a Texas corporation, said lease to be fully
guaranteed by Connally Implement Supply Co., Inc., a Texas corpor-
ation, such real estate, buildings and equipment hereinafter sometimes
referred to as the "Facility";
NOW, THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF
THE CITY OF SALINA, KANSAS:
SECTION 1. That the City of Salina, Kansas, is hereby
authorized to acquire the following described real estate situated
in Saline County, Kansas, to wit:
A tract of land lying in the Southwest Quarter
(SW/4) of Section Fourteen (14), Township Fourteen
(14) South, Range Three (3) West of the Sixth
Principal Meridian in Saline County, Kansas, des-
cribed as follows: from the southwest corner of
said Southwest Quarter (SW/4), thence east on an
assumed bearing of North 9010' East along the
south line of said Southwest Quarter (SW/4) a
distance of 1771 feet to a point on the east
right-of-way line of U.S. 81 Highway Bypass ex-
tended, thence North 0058145" East along said
east right-of-way line and parallel with the east
line of said Southwest Quarter (SW/4) a distance
of 1309.5 feet to the Point of Beginning, thence
North 9010' east parallel with south line of said
Southwest Quarter (SW/4) a distance of 875.30 feet
to a point on east line of said Southwest Quarter,
said east line also being the west right-of-way
line of the Missouri Pacific Railroad, thence
South 0058'45" West along the east line of said
Southwest Quarter (SW/4) a distance of 300 feet,
thence South 9000' West parallel with the south
line of said Southwest Quarter (SW/4) a distance
of 875.30 feet to a point on the east right-of-way
line of U.S. 81 Highway Bypass, thence North
0°58'45" East along said east right-of-way line a
distance of 300 feet to the point of beginning,
being the same land described in Saline County,
Kansas Recorder deed book 172 page 242, an in-
denture between the Salina Building Company, Inc.
and John Deere Plow Company of Kansas City,
subject to easements and restrictions of record, and to pay the cost
of purchasing, improving, enlarging, constructing and equipping
industrial buildings thereon, including a certain existing building
thereon, in accordance with the provisions of the Lease and Agreement
2.
1
1
1
dated as of November 1, 1973, between said City and said The Hill
Company, as Tenant, and Connally Implement Supply Co., Inc., as
Guarantor, (sometimes referred to hereafter as the "Lease") hereinafter
authorized, all at an amount which will not exceed the cost of
$265,000.00 to said City.
SECTION 2. That for the purpose of providing funds to
pay the cost of acquiring said real estate and of purchasing, improving,
enlarging, constructing and equipping said industrial buildings to
be leased to The Hill Company, a Texas corporation, (sometimes referred
to hereafter as the "Tenant"), there shall be issued and hereby are
authorized and directed to be issued a series of Industrial Development
Revenue Bonds, Series 11-1-73 , of the City of Salina, Kansas, in the
principal amount of $265,000.00. Said bonds herein authorized, here-
inafter sometimes referred to as the "Bonds" or the "Revenue Bonds,"
and all interest thereon shall be paid solely from the money and revenue
received from the Facility and not from any other fund or source.
SECTION 3. Said Industrial.Development Revenue Bonds,
Series 11-1-73 , of the City of Salina, Kansas, shall consist of
53 bonds, numbered from 1 to 53, inclusive, each of said bonds being
in denomination of $5,000.00. All of said bonds shall be dated
November 1, 1973, and said bonds shall be numbered, and shall bear
interest and become due serially on November 1, 1974 and in each
year thereafter as follows:
3.
Bond
Interest
Maturity
Numbers
Amount
Rate
Date
1
to
3,
Incl.
$15,000.00
7%
November
1,
1974
4
to
63
Incl.
15,000.00
7%
November
1,
1975
7
to
9,
Incl.
15,000.00
7%
November
1,
1976
10
to
13,
Incl.
20,000.00
7%
November
1,
1977
14
to
17,
Incl.
205,000.00
7%
November
1,
1978
18
to
213
Incl.
20,000.00
7%
November
13
1979
22
to
26,
Incl.
25,000.00
7%
November
1,
1980
27
to
31,
Incl.
25,000.00
7%
November
1,
1981
32
to
37,
Incl.
30,000.00
7%
November
1,
1982
38
to
43,
Incl.
30,000.00
7%
November
1,
1983
44
to
49,
Incl.
30,000.00
7%
November
13-
1984
50
to
53,
Incl.
20,000.00
7%
November
1,
1985
3.
Said Bonds bear interest from date at the rates of
interest set forth above, payable May 1, 1974, and thereafter semi-
annually on November 1 and May 1 in each year.
Bonds numbered 1 to 26, inclusive, shall become due without
option of prior payment, except as is hereinafter specified. At the
option of the City, which option the City shall exercise upon written
direction from Tenant, Bonds numbered 27 to 53, inclusive, may be
called for redemption and payment in whole or in part, in inverse
numerical order, on November 1, 1980, or on any interest payment date
thereafter at the par value thereof, plus accrued interest thereon
to the date fixed for redemption and payment, together with a premium
which shall be equal to three percent (3%) of the par value of the
principal amount of said Bonds so called for redemption and payment.
All of the Bonds of this issue shall be subject to redemption
and payment at the option of said City, which option the City shall
exercise upon written direction from Tenant, on November 1, 1974, or
on any interest payment date thereafter if title to, or the use for
a limited period of, substantially all of the Facility be condemned by
any authority having power of eminent domain, or in the event that
all or substantially all of such Facility is damaged or destroyed
by fire or other casualty, or if as a result of changes in the Constitution
of the State of Kansas or.of legislative action, or by the final
decree of judgment of any Court entered after Tenant's contest thereof
in good faith, the Lease and Agreement becomes void or unenforceable
or impossible of performance in accordance with the intent and purposes
of the parties as expressed in said Lease and Agreement, or unreasonable
burdens or excessive liabilities are imposed on the City or on the
Tenant, at the par value thereof, plus accrued interest thereon to
the date fixed for redemption and payment.
Notice of any call for redemption and payment shall be
given by one publication in the official city paper and in the
official state paper of the State of Kansas at least thirty (30) days
t .-h-n � t., fi .ca f, ,--
prior U v �: u.c.i.v.. .. a yr r -. ".-",-pt i'on and paymncnt .
shall specify bond numbers of bonds to be redeemed and paid and such
notice shall also be mailed by registered or certified mail not less
than thirty (30) days prior to the date fixed for redemption and
4.
payment to Stifel, Nicolaus and Company, Inc., Wichita, Kansas,
and to the Trustee hereinafter named. Interest shall cease on any
of said bonds so called for redemption and payment as of the date
fixed for redemption and payment, provided funds are available to
pay the same according to their terms.
Said bonds and interest coupons to be attached thereto
as hereinafter provided shall be payable in lawful money of the
United States of America at First National Bank & Trust Company,
Salina, Kansas, hereinafter sometimes referred to as "Trustee" or
as "Paying Agent" or by both titles.
SECTION 4. Said bonds and each of them shall be executed
for and on behalf of the City by the facsimile signature of the Mayor
and attested by the facsimile signature of the City Clerk, with the
seal of the City affixed. Interest coupons shall be attached to
said bonds representing the interest to mature thereon, and said
interest coupons shall bear the facsimile signatures of the Mayor
and City Clerk of said City. All of said bonds shall be registered
by the City Clerk in substantially the form hereinafter set forth
and such registration certificate shall be manually executed by
the City Clerk and attested by the seal of the City. Each of said
bonds shall be authenticated by the manual signature of an authorized
officer of the Trustee and Paying Agent.
SECTION 5. Each of said bonds and interest coupons and
the certificates attached thereto shall be in substantially the following
form:
5•
No. UNITED STA'L'ES OF AMERICA $5,000.00
STATE OF KANSAS
COUNTY OF SALINE
CITY OF SALINA
INDUSTRIAL DEVELOPMENT REVENUE BOND
SERIES If -1- 73
FIVE THOUSAND DOLLARS
in lawful money of the United States of America, on the first day
of November, 19 , and to pay interest thereon from the date
hereof at the rate of seven percent (7%) per annum, payable May 1,
1974, and thereafter semiannually on November 1 and May 1 in each
year after the date hereof until the said principal sum shall have
been paid, upon presentation and surrender of the interest coupons
hereto attached, bearing the facsimile signatures of the Mayor and
City Clerk of said City as said coupons severally become due, both
principal of'and interest on this bond being payable at the
office of the First National Bank & Trust Company, in the City of
Salina, Kansas, Trustee and Paying Agent.
THIS BOND is one of an authorized series of 53 bonds of
like date and tenor, except as to number, privilege of redemption,
and maturity, aggregating the principal amount of $265,000.00,
numbered from 1 to 53, inclusive, being in denominations of $5,000.00,
authorized by Ordinance No. 06318 of said City, issued for the
purpose of providing funds to pay the cost of acquiring certain real
estate and of purchasing, improving, enlarging, constructing, and
equipping industrial buildings thereon (said real estate, buildings
and equipment hereinafter sometimes referred to as the "Facility") to
be leased to The Hill Company, a Texas corporation, (hereinafter
sometimes referred to as the "Facility"), by the authority of and
in conformity with the provisions, restrictions and limitations of
the Constitution and Statutes of the State of Kansas, including K.S.A.
Sections 12-1740 to 12-1749, inclusive, and all amendments thereof
and acts supplemental thereto, and all other provisions of the laws
of said State applicable thereto, and this bond and all interest
and premium, if any, hereon are to be paid by said City of Salina,
Kansas, solely and only from the money and revenue received from the
Facility and not from any other fund or source. Pursuant to the
provisions of said statute, the governing body of the City has pledged
said Facility and the earnings therefrom to the payment of the series of
bonds of which this bond is a part, and the interest and premium, if
any, thereon. Reference is hereby made to the ordinance aforesaid
and to said lease from the City to said Tenant, which lease is fully
and unconditionally guaranteed by Connally Implement Supply Co., Inc.,
a Texas corporation, for a description of the covenants of the City
with respect to the collection, segregation, and application of the
revenues of said Facility, the nature and extent of the security of
said bonds, the rights, duties and obligations of the City and of the
Trustee with respect thereto, and the rights of the holders thereof.
6.
(THE HILL
COMPANY, TENANT,
AND CONNALLY
IMPLEMENT
SUPPLY CO., INC.,
GUARANTOR)
KNOW ALL MEN BY
THESE PRESENTS:
That the City of Salina,
in the County of Saline,
State of Kansas,
for value received, hereby
promises to pay, out of
the revenues hereinafter
specified, to the
bearer, the sum of
FIVE THOUSAND DOLLARS
in lawful money of the United States of America, on the first day
of November, 19 , and to pay interest thereon from the date
hereof at the rate of seven percent (7%) per annum, payable May 1,
1974, and thereafter semiannually on November 1 and May 1 in each
year after the date hereof until the said principal sum shall have
been paid, upon presentation and surrender of the interest coupons
hereto attached, bearing the facsimile signatures of the Mayor and
City Clerk of said City as said coupons severally become due, both
principal of'and interest on this bond being payable at the
office of the First National Bank & Trust Company, in the City of
Salina, Kansas, Trustee and Paying Agent.
THIS BOND is one of an authorized series of 53 bonds of
like date and tenor, except as to number, privilege of redemption,
and maturity, aggregating the principal amount of $265,000.00,
numbered from 1 to 53, inclusive, being in denominations of $5,000.00,
authorized by Ordinance No. 06318 of said City, issued for the
purpose of providing funds to pay the cost of acquiring certain real
estate and of purchasing, improving, enlarging, constructing, and
equipping industrial buildings thereon (said real estate, buildings
and equipment hereinafter sometimes referred to as the "Facility") to
be leased to The Hill Company, a Texas corporation, (hereinafter
sometimes referred to as the "Facility"), by the authority of and
in conformity with the provisions, restrictions and limitations of
the Constitution and Statutes of the State of Kansas, including K.S.A.
Sections 12-1740 to 12-1749, inclusive, and all amendments thereof
and acts supplemental thereto, and all other provisions of the laws
of said State applicable thereto, and this bond and all interest
and premium, if any, hereon are to be paid by said City of Salina,
Kansas, solely and only from the money and revenue received from the
Facility and not from any other fund or source. Pursuant to the
provisions of said statute, the governing body of the City has pledged
said Facility and the earnings therefrom to the payment of the series of
bonds of which this bond is a part, and the interest and premium, if
any, thereon. Reference is hereby made to the ordinance aforesaid
and to said lease from the City to said Tenant, which lease is fully
and unconditionally guaranteed by Connally Implement Supply Co., Inc.,
a Texas corporation, for a description of the covenants of the City
with respect to the collection, segregation, and application of the
revenues of said Facility, the nature and extent of the security of
said bonds, the rights, duties and obligations of the City and of the
Trustee with respect thereto, and the rights of the holders thereof.
6.
At the option of the City, which option the City shall
exercise upon written direction from Tenant, bonds numbered 27 to 53,
inclusive, of the series of bonds of which this bond is one, may be
called for redemption and payment prior to their respective maturities,
in whole or in part, in inverse numerical order, on November 1, 1980,
or on any interest payment date thereafter, at the par value thereof
and accrued interest to date of redemption, together with a premium of
three percent (3%) of the principal amount of said bonds so called for
redemption and payment. Each of the then outstanding bonds of the series
of which this bond is one is also subject to redemption and payment
prior to their respective maturities on any interest payment date, in
the event that all or substantially all of the Facility leased to said
Tenant be condemned by any authority having the power of eminent domain,
or in the event all or substantially all of said Facility be damaged
or destroyed by fire or other casualty, or if as a result of changes in
the Constitution of the State of Kansas or of legislative action, or
by the final decree or judgment of any Court entered after Tenant's
contest thereof in good faith, the Lease and Agreement becomes void
or unenforceable or impossible of performance in accordance with the
intent and purposes of the parties as expressed in the Lease and Agree-
ment, or unreasonable burdens or excessive liabilities are imposed on
the City or on the Tenant, at the par value thereof, plus accrued interest
thereon to date of redemption. Notice of the City's intention to redeem
and pay said bonds, specifying the numbers of the bonds to be redeemed
and paid, shall be given by United States registered or certified mail
to Stifel, Nicolaus and Company, Inc., Wichita, Kansas, the original
purchaser of said bonds, not less than thirty (30) days prior to the
date fixed for redemption and payment and by one publication in the
official city paper and in the official state paper of the State of
Kansas not less than thirty (30) days before the date fixed for redemption
and payment.
a
This bond shall not be valid for any purpose until the
Certificate of Authentication hereon shall have been signed by the
Trustee.
AND IT IS HEREBY DECLARED AND CERTIFIED that all acts,
conditions and things required to be done and to exist precedent to
and in the issuance of this bond have been properly done and performed
and do exist in due and regular form and manner as required by the Con-
stitution and laws of the State of Kansas and the ordinances of the
City of Salina.
IN WITNESS WHEREOF, the City of Salina, in the State of
Kansas, by its governing body, has caused this bond to be signed by
the facsimile signature of its Mayor and attested by the facsimile
signature of its City Clerk, and its corporate seal to be hereto
affixed and the interest coupons hereto attached to be signed with
the facsimile signatures of said officers, and this bond to be dated
this first day of November, 1973•
ATTEST:
(facsimile)
CITY CLERK
MA
(facsimile)
MAYOR
1
1
(FORM 01" COUPON)
Coupon No. The first interest coupon
being payable May 1, 1974)
On the First day of (November)
(May), 19 , (unless the bond to which
this coupon is attached shall have been
previously called for redemption and payment
duly provided for) the City of Salina, Kansas,
will pay bearer, solely from the money and
revenue received from the Facility described
in the bond to which this coupon is attached,
and not from any other fund or source, One
Hundred Seventy -Five and no/100 Dollars, in
lawful money of the United States of America,
at the office of the First National Bank &
Trust Company, Salina, Kansas, being six
months' interest on its Industrial Develop-
ment Revenue Bonds, Series 11-1-75 , dated
November 1, 1973,
No.
facsimile
Mayor
Attest:
(facsimile
City Clerk
STATE OF KANSAS )
ss.
SALINE COUNTY )
Bond No. _
November 1,
May 1,
19
City of
Salina, Kansas
Industrial
Development
Revenue Bonds
Series 11-1- 73
$175.00
I, the undersigned, City'Clerk of the City of Salina, Kansas,
hereby certify that the within Industrial Development Revenue Bond,
Series 11-1-73 of the City of Salina, Kansas, has been duly registered
in my office according to law.
(Seal)
WITNESS my hand and official seal this
City Clerk
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This bond is one of those described in the within mentioned
Ordinance No. M$ of the City of Salina, Kansas.
FIRST NATIONAL BANK & TRUST COMPANY
Salina, Kansas
1
8.
SECTION 6. Said bonds and the coupons affixed thereto
shall be registered on the official records of the City of Salina,
Kansas.
SECTION 7. The Mayor and City Clerk are hereby authorized
and directed to prepare and execute in the manner hereinbefore specified
the Industrial Development Revenue Bonds, Series 1/-1-73 of the City
herein authorized, and to deliver said bonds to Sti.fel, Nicolaus &
Company, Inc., Wichita, Kansas, the purchaser thereof on payment of the
purchase price to First National Bank & Trust Company, Salina, Kansas,
the Trustee hereinafter designated.
SECTION 8. There is hereby authorized and ordered to be
established in the hands of the Trustee a separate fund or account
designated as "THE HILL COMPANY ACQUISITION AND CONSTRUCTION FUND,"
hereinafter referred to as the "CONSTRUCTION FUND." The proceeds from
the sale of said Bonds shall be deposited in said CONSTRUCTION FUND.
Concurrently with the issuance of said bonds, the Trustee shall with-
draw from aaid CONSTRUCTION FUND any accrued interest received by said
City and shall deposit the same in the PRINCIPAL AND INTEREST ACCOUNT
hereinafter created. The Trustee shall make disbursements from said
CONSTRUCTION FUND in accordance with the terms and provisions of the
Lease dated as of November 1, 1973, between said City and said The
Hill Company, as authorized by the provisions of this ordinance and in
accordance with this ordinance. The Trustee is hereby authorized
to pay from the CONSTRUCTION FUND on orders signed by the Project
Manager designated in the Lease and Agreement such sums as may be
necessary to cover the cost of acquisition of the real estate and the
existing improvements thereon, payments required to be made under the
construction contracts, architects' and engineers' fees, fiscal fees,
attorneys' fees, and 01 miscellaneous expenses covering the issuance of
the bonds and the completion of the Facility, including all necessary
equipment for said Facility. The Trustee may rely upon orders of the
Project Manager and shall not be required to determine whether there
has been a proper application of funds. Following the completion of
N
the Facility and the payment of all construction expenses,
which completion and payment shall be evidenced by the certificate
of the Project Manager, any balance remaining in the CONSTRUCTION
FUND shall be transferred by the Trustee to the PRINCIPAL AND INTEREST
ACCOUNT hereafter created, unless all transfers required by this
Ordinance to be made to said PRINCIPAL AND INTEREST ACCOUNT shall
then be current, in which event said balance shall be transferred
by the Trustee to the SURPLUS ACCOUNT hereafter created.
SECTION 9. There are hereby authorized and ordered to
be established in the hands of the Trustee two separate accounts
as follows:
(1) "THE HILL COMPANY PRINCIPAL AND INTEREST
ACCOUNT NO. l," herein referred to as the
"PRINCIPAL AND INTEREST ACCOUNT," or as
"ACCOUNT NO. 13"
(2) "THE HILL COMPANY SURPLUS ACCOUNT, ACCOUNT
NO. 2," herein referred to as the "SURPLUS
ACCOUNT," or as "ACCOUNT NO. 2."
The City covenants and agrees that from and after delivery of any
of the Revenue Bonds herein authorized, and continuing so long as any
of said bonds shall remain outstanding, said City will maintain said
accounts and each of them with the Trustee. All monies paid or to
be paid under said Lease between the City and The Hill Company,
dated as of November 1, 1973, shall be paid to and deposited with
the Trustee, and shall be applied and allocated by said Trustee
on the first day of each month beginning with the month of November,
1973, and continuing thereafter as long as any of the Revenue Bonds
authorized remain outstanding and unpaid, as follows:
(a) There shall first be credited to and deposited in
said PRINCIPAL AND INTEREST ACCOUNT: (1) Beginning November 1,
1973, and on the first day of each month thereafter an amount not less
than one-sixth (1/6) of the amount required to pay the interest on said
bonds becoming due on the next succeeding interest payment date (after
10.
first deducting any monies then on hand in said PRINCIPAL AND INTEREST
ACCOUNT), and in addition (2) on the first day of November, 1973, and
on the first day of each month thereafter an amount not less than
one -twelfth (1/12) of the amount required to pay the principal amount
of the bonds herein authorized becoming due on the next succeeding
bond maturity date.
All amounts credited to and deposited in said PRINCIPAL
AND INTEREST ACCOUNT shall be expended and used by the Trustee for
the sole purpose of paying the interest on and principal of the
Revenue Bonds herein authorized as and when the same become due,
and the Trustee shall apply such amounts immediately upon receipt,
if necessary, for the purpose of paying such principal and interest.
(b) After all deposits required by paragraph (a) of this
Section 9 shall have been made, the Trustee shall deposit the
Agent. The Trustee is authorized to make any such payments upon an
appropriate certificate executed by Tenant setting out the purpose
for which the funds are to be expended and certifying that such ex-
penditures comes within the provisions of this ordinance but subject
to the consent of the City as is provided in paragraph (b) of this
Section 9. Monies in said SURPLUS ACCOUNT shall be used by the Trustee
to increase the balance held in the PRINCIPAL AND INTEREST ACCOUNT for
the purpose of paying the principal of or interest on the bonds herein
authorized in the event that rental payments under the lease are
insufficient for that purpose or if for any other reason no other
monies are available for said purpose. Monies in said SURPLUS ACCOUNT
may also be used by the Trustee for the purpose of purchasing for can-
U4- the Rt enue Bonds herei?1 a1-
1. i zed, pi-ior to their respective
11.
balance
of all monthly rental payments in
the
SURPLUS ACCOUNT. Monies
in said
SURPLUS ACCOUNT shall be paid out
by
the Trustee for the
purpose
of making emergency repairs to the
Facility
aforesaid, for
extensions,
enlargements and improvements
to
the same, for replacements
to any
equipment (constituting a part of the
Facility) located therein,
and to
pay the fees, expenses and charges
for
the Trustee and Paying
Agent. The Trustee is authorized to make any such payments upon an
appropriate certificate executed by Tenant setting out the purpose
for which the funds are to be expended and certifying that such ex-
penditures comes within the provisions of this ordinance but subject
to the consent of the City as is provided in paragraph (b) of this
Section 9. Monies in said SURPLUS ACCOUNT shall be used by the Trustee
to increase the balance held in the PRINCIPAL AND INTEREST ACCOUNT for
the purpose of paying the principal of or interest on the bonds herein
authorized in the event that rental payments under the lease are
insufficient for that purpose or if for any other reason no other
monies are available for said purpose. Monies in said SURPLUS ACCOUNT
may also be used by the Trustee for the purpose of purchasing for can-
U4- the Rt enue Bonds herei?1 a1-
1. i zed, pi-ior to their respective
11.
maturities, provided funds are availahle to pay the same according to
their terms and provided such purchases occur prior to November 1,
1980, and for the purpose of calling any of the bonds which are then
subject to call for redemption and payment prior to their respective
maturities. Monies in the SURPLUS ACCOUNT shall not be paid out by
the Trustee for any of the purposes herein set forth (except to provide
for payment of the principal of or interest on the bonds herein
authorized, and except to pay the fees, expenses and charges of the
Trustee and Paying Agent) unless the Trustee has been furnished with a
written order from Tenant. Unless the City shall have consented to each
such disbursement, the Trustee shall notify the City Clerk of the City
of such proposed disbursement and shall proceed to make such disburse-
ment, unless within ten (10) days after notice to the City Clerk the
City notifies the Trustee that it objects to such disbursement.
SECTION 10. When monies accumulated in said PRINCIPAL AND
and payment, said City shall upon Tenant's direction proceed to give
notice of such redemption in the manner herein specified, and the Trustee
shall apply the necessary funds out of the said PRINCIPAL AND INTEREST
ACCOUNT and said SURPLUS ACCOUNT to redeem and pay said bonds in
accordance with the provisions of this ordinance. Any balance in
said funds and accounts not required for said purpose shall be returned
to Tenant as excess rent.
SECTION 11. Monies in the CONSTRUCTION FUND, the PRINCIPAL
AND INTEREST ACCOUNT, and the SURPLUS ACCOUNT may, upon instruction
by Tenant, be invested by the Trustee in such amounts and at such times
as shall reasonably provide for monies to be available when required,
in obligations of the United States Government or of an agency thereof,
12.
INTEREST ACCOUNT
and in said
SURPLUS
ACCOUNT shall aggregate an
amount sufficient
to pay the
principal of all of said Revenue Bonds
then outstanding
and subject
to call
for redemption prior to their
respective maturities,
together with
all interest thereon, together
with the premium
required to
pay the
same upon call for redemption
and payment, said City shall upon Tenant's direction proceed to give
notice of such redemption in the manner herein specified, and the Trustee
shall apply the necessary funds out of the said PRINCIPAL AND INTEREST
ACCOUNT and said SURPLUS ACCOUNT to redeem and pay said bonds in
accordance with the provisions of this ordinance. Any balance in
said funds and accounts not required for said purpose shall be returned
to Tenant as excess rent.
SECTION 11. Monies in the CONSTRUCTION FUND, the PRINCIPAL
AND INTEREST ACCOUNT, and the SURPLUS ACCOUNT may, upon instruction
by Tenant, be invested by the Trustee in such amounts and at such times
as shall reasonably provide for monies to be available when required,
in obligations of the United States Government or of an agency thereof,
12.
in obligations guaranteed by the United States Government or an agency
thereof, or in Certificates of Deposit issued by the commercial
department of a State or National Bank, including Trustee, provided
said Certificates of Deposit are insured by an agency of ^the
United States Government. The Trustee shall have complete discretion
in determining maturity dates, so as to adequately anticipate
its future cash needs as may be required in said accounts. The Trustee
shall invest such monies so as to obtain the maximum possible return,
with a view, however, to the risk and time involved. All interest
on any bonds or other obligations held in any of said accounts shall
accrue to and become a part of the CONSTRUCTION FUND until completion
and occupancy of the Facility and shall thereafter accrue to and become
a part of the SURPLUS ACCOUNT. In determining the amount held in
any account under the provisions of this Ordinance, obligations shall be
valued at their principal par value or at their then market value,
whichever is lower.
SECTION 12.
So long as any of the principal of and interest
on any of the Revenue Bonds herein authorized remain outstanding and
unpaid, the City covenants with each of the purchasers and owners
of said bonds as follows:
(A) The City will neither make nor permit Tenant, Guarantor
or Trustee to make any use of the proceeds of the bonds herein authorized
which if such use had been reasonably expected on the date of issuance
of said bonds, would have caused said bonds to be arbitrage bonds
within the meaning of Section 103(d) of the Internal Revenue Code of
1954, as amended, and the City will comply with, and will take all
necessary action to cause Tenant, Guarantor and Trustee to comply
with, all applicable requirements of said Section 103(d) and the rules
and regulations of tie United States Treasury Department thereunder
for so long as any of said bonds outstanding and unpaid.
(B) The City will comply fully with all the terms,
provisions and conditions of the Lease which require performance
by, or impose duties on the City and that it will not permit any
13.
default to occur on the part of the City; that it will fully and
promptly enforce all of the terms, provisions and conditions of
the Lease which require performance by, or impose duties on, The
Hill Company, or Connally Implement Supply Co., Inc., and in the
event of the occurrence of a default, as defined in the Lease, will
exercise all rights and remedies conferred by the Lease for the full
and complete protection of the security and rights of the bondholders
and to the extent permitted by the Lease, will use its best efforts
to procure a new tenant or tenants for the leased property under lease
provisions which will provide funds sufficient in amount to make the
rental payments and other charges which The Hill Company is required
to make under the Lease dated as of November 1, 1973. If the City
is unable to procure a new tenant who will enter into such a lease,
the City may, with the consent of the holders of not less than seventy-
five percent (75%) in principal amount of the Bonds herein authorized
at the time outstanding, sell the Facility leased at a price not less than
the amount of then outstanding Revenue Bonds plus interest then unpaid,
plus.the premium required to call said bonds for redemption and payment.
(C) The City will enforce collection of the rental payments
and other charges in the amounts and at the times set forth in the
Lease authorized hereby and will not reduce or cause or permit to be
reduced the rental payments and other charges fixed, established
and required by the Lease, nor change or alter the time or times
when the same are due and payable under said Lease. The City's
obligation to pay the expenses of such enforcement shall be limited to
funds made available to it for that purpose by the holders of the bonds
or other interested or obligated parties.
(D) That until payment of all the Bonds and interest
thereon has been duly made or provided for, the City will not consent
to any assignment or other transfer, in whole or in part, of the
interests of The Hill Company or Connally Implement Supply Co., Inc.
in the Lease, except as provided for in the Lease, nor any change,
amendment, modification or termination of said Lease, which will
in any manner affect adversely the rights, remedies or interests of
the bondholders.
14.
(E) Any purchase price of the leased property received
by the City following the termination of the Lease Agreement, any
proceeds of condemnation awards or any advance rental payments
will be used solely and exclusively to redeem and pay according to
their terms any of the Revenue Bonds herein authorized then outstanding
and unpaid and subject to redemption and payment. Upon receipt of
any such funds, the City shall proceed promptly to call said Revenue
Bonds for redemption and payment and shall give notice thereof
provided for by the terms of this ordinance. Such funds shall be
deposited with the Trustee, and the same shall be used solely for the
payment of the Revenue Bonds herein authorized, accrued interest
thereon, any premium provided for by this ordinance and the charges of
the Trustee for paying the same.
(F) The City will not issue any other obligations payable
from payments made by The Hill Company or by Connally Implement
Supply Co., Inc. pursuant to the Lease, nor voluntarily create or cause
to be created any debt, lien, pledge, assignment, encumbrance, or any
other charge on said payments or on the property subject to said
Lease.
(G) The City will cause The Hill Company to keep constantly
insured all buildings and improvements from time to time constituting
a part of the Facility in the manner provided for by the Lease herein
authorized. The City's share of the proceeds of any such insurance
policies shall be payable to and deposited with the Trustee as In-
surance Trustee. Any of the proceeds of such policies shall be used
and applied in the manner set forth in Section lg of said Lease.
(H) The City will keep books and records, or cause the
Trustee to keep books and records, relating to the Facility, which
shall be separate and apart from all other books, records and accounts
of the City in which correct entries shall be made in accordance with
standard principles of accounting of all transactions relating to
the leased property and improvements and the original purchasers of the
nevenue Bonds iieveiri authorized and any bondholder or any representative
15.
of The dill Company or Connally Implement Supply Co., Inc. shall have
the right at all reasonable times to inspect all records, accounts and
data of the City relating to the leased property and improvements.
In the event said books and records are maintained by the
City rather than by the Trustee, the City shall, at least once a year
at
the
expense
of The Hill
Company cause such
books, records
and accounts
to
be
properly
audited by
a competent auditor
or accountant
of recognized
standing and shall make said audit available at all reasonable times
to any bondholder, to The Hill Company, and to Connally Implement
Supply Co., Inc. A copy of said audit shall also be mailed to Stifel,
Nicolaus & Company, Inc., Wichita, Kansas.
(I) The City will make or cause to be made a biennial
inspection of the Facility and will cause a report of such inspection
with recommendation for changes or improvements in maintenance procedures
to be filed with the City Clerk. The City shall be reimbursed by the
Trustee for any expenses incurred by it in making such inspection of
the Facility and the report thereof.
SECTI0111 13. The provisions of the Bonds authorized by
this ordinance and the provisions of this ordinance may be modified
or amended at any time by the City with the written consent of the
Trustee, the Tenant, the Guarantor and the holders of not less than
seventy-five percent (75%) in aggregate principal amount of the Bonds
herein authorized at the time outstanding; provided, however, that
no such modification or amendment shall permit or be construed as
permitting (a) the extension of the maturity of the principal of any
interest on any Bonds issued hereunder, or (b) a reduction in the principal
amount of any Bonds or the rate of interest thereon, or (c) a reduction
in the aggregate principal amount of Bonds the consent of the holders
of which is required for any such amendment or modification. Any
provisions of the Bonds or of this ordinance may, however, be modified
or amended in any respect with the written consent of the Tenant and
the consent of the holders of all of the Bonds then outstanding. Every
r—endment or mo,' i fi_ at'r,n of r,_ ,sri i,nn of t}ia Rnr;15 Or Ot' this
ordinance to which the written consent of the bondholders is given
as above provided shall be expressed in an ordinance of the City amending
or supplementing the provisions of this ordinance and shall be deemed
16.
to be a part of this ordinance. It shall not be necessary to note
on any of the outstanding Bonds any reference to such amendment or
modification, if any. A certified copy of this ordinance shall always
be kept on file in the office of the City Clerk and shall be made
available for inspection by the Tenant or the Guarantor and by the
holder of any Bond or prospective purchaser or holder of any Bond
authorized by this Ordinance, and upon payment of the reasonable cost
of preparing the same, a certified copy of any such amendatory or
supplemental ordinance or of this ordinance will be sent by the City
Clerk to any such bondholder or prospective bondholder.
SECTION 14. The provisions of this ordinance shall con-
stitute a contract between the City of Salina, Kansas and the holders
of the Revenue Bonds herein authorized, and the holder of any one
or more of said Bonds may sue, in any action, in mandamus, injunction,
or other proceedings, either at law or in equity, to enforce or compel
performance of all duties and obligations required b.y this ordinance
to be done or performed by said City. The City hereby pledges the
Facility hereinabove described together with all additions thereto,
all machinery and equipment therein and thereon purchased or acquired
from the bond proceeds or proceeds from the SURPLUS ACCOUNT, including
any replacements thereof and all accretions thereto, subject to the
replacement provisions provided for in the Lease and Agreement, to the
payment of the Bonds authorized herein and all interest thereon, such
pledge to be enforced in the manner provided by law. Nothing contained
in this ordinance shall, however, be construed to impose on said City
any duty or obligation to levy any taxes either to meet any obligation
contained herein or to pay the principal of or interest on the Revenue
Bonds of the City herein authorized.
SECTION 1�r. The tract of land to be acquired pursuant
to the provisions of this ordinance and the improvements to be acquired,
installed and constructed thereon pursuant to this ordinance shall
be leased to The Hill Company under and pursuant to a Lease and Agreement
dated a;c of luovemb;:r 1, 1973, in the form attached to this ordinance
and made a part hereof by reference, which Lease the Mayor and City
17.
Clerk are hereby authorized and directed to execute for, on behalf'
of and as the act and deed of the City. Said officers are further
authorized and directed to execute and acknowledge a memorandum of
said Lease in such form as they may deem adequate and to have the
same recorded in the office of the Register of Deeds of Saline County,
Kansas.
SECTION 16. The First National Bank & Trust Company,
Salina, Kansas, hereinbefore designated as Trustee and Paying Agent
hereunder, shall have all the power of the City as herein described
upon the filing with the City Clerk of the City of a written acceptance
of the office of the Trustee and Paying Agent. Said Trustee may
enforce in the name of the City or in its own name the Lease and
Agreement and this Ordinance. Should said Trustee fail to accept
such office or should it later resign as Trustee, the City reserves the
right by Ordinance to select and designate a successor Trustee which
shall be a bank having trust powers or trust company located in the
State of Kansas, and which successor Trustee shall have all the
power and duties of the Trustee herein designated upon written
acceptance of the office of Trustee. When all of the bonds have been
paid in full, together with all interest thereon and premium, if any,
and all fees and charges of the Trustee and Paying Agent, the balance,
if any, in all of the accounts shall be paid over by the Trustee to
The Hill Company, and when all of said accounts have been reduced
to a zero balance the office of Trustee and Paying Agent shall
terminate.
The Trustee shall have no duties except those specifically
provided for in the Lease and Agreement and in this Ordinance. The
Trustee in administering the Lease and Agreement and this Ordinance,
shall be entitled to advice of counsel and shall be protected for
any action taken in good faith in reliance upon such advice. The
Trustee shall be entitled to rely fully upon any reports, certificates
or opinions furnished to it by the Project Manager pursuant to the
no
Lease. The Trustee shall riot be liable for any action taken by it
in good faith and reasonably believed by it to be within the dis-
cretion or power conferred by this ordinance or be responsible for,
the consequences of any oversight or error of judgment reasonably
made by it and the Trustee shall be answerable only for its own
acts,
receipts, neglects and
defaults and
not
for those of
any person,
firm
or corporation employed
and selected
with
reasonable
care.
SECTION 17. The City hereby assigns to the Trustee herein
designated, the Lease of the Facility. Such assignment shall continue
only so long as any of the Bonds (including interest thereon) authorized
hereunder shall be outstanding and unpaid, and when said Bonds (in-
cluding interest thereon) shall have all been paid or provisions
shall have been made for their payment, said Lease shall automatically
be reassigned to the City.
SECTION 18. If any one or more of the covenants, agreements
or provisions of this ordinance or of said Lease dated as of
November 1, 1973, should be held contrary to any express provision
of law or contrary to the policy of express law, though not expressly
prohibited, or against public policy, or shall for any reason whatso-
ever be held invalid, then such covenants, agreements or provisions
shall be null and void and shall be deemed separate from the remaining
covenants, agreements or provisions, and shall in no way affect the
validity of the other provisions of this ordinance or of the Bonds
or coupons issued hereunder, or the Lease.
SECTION 19. This ordinance shall take effect and be in
force from and after its passage and publication in the official
City paper.
PASSED ANIS APPROVED at Salina, Kansas, the /, Z e4 day of
1973•
MAYOR
ATTEST:
c
0
_ CITY CLERK
* 19.
• 0-06-73
Lt�,ASE AND AGREEMENT
THIS LEASE AND AGREEMENT made as of the lst day of November,
1973, by, between and among the CITY OF SALINA (Landlord), a municipal
corporation of the State of Kansas, THE HILL COMPANY (Tenant), a Texas
corporation, and CONNALLY IMPLEMENT SUPPLY CO., INC. (Guarantor), a
Texas corporation.
W I T N E S S E T H:
Landlord is a duly existing municipality, a city of the first
class, with full lawful power and authority to enter into this Lease
and Agreement, acting by and through its Governing Body, in the public
interest and for a public purpose, by providing for industrial development
and employment opportunities for its citizens and for the citizens of
the Salina metropolitan area to promote the economic stability of the
State of Kansas, all as authorized by K.S.A. 12-1740 to 12-1749,
as amended.
In reliance upon negotiations heretofore had, and in order
to expedite the anticipated public benefits hereunder by avoiding
delays which would otherwise occur, Tenant has proceeded to acquire
land and certain existing improvements and to cause to be designed
additional improvements to be constructed upon the real estate herein-
after described.
To provide the funds for the acquisition of the fee simple
title to the land hereinafter described and the existing improvements
thereon and to pay the cost of construction of said additional im-
provements, Landlord intends to issue and sell its Industrial Development
Revenue Bonds in the amount of Two Hundred Sixty-five Thousand Dollars
($265,000.00) hereinafter sometimes called the "Bonds." The Bonds
shall be secured by a pledf;e of the Facility as hereinafter defined
and shall also be secured by a first lien on the j;ross rentals from
the said Fa c.,ilit;y under L-a.ae and l„rree, er�t;. Tc yi,-in ;
edc"es that tho net; procecds from the sa_7 o oI' such Bond,-) m�ty be
Ar
to pay for the completed Facility, and intends and agrees to contribute
its own funds to pay any balance required to fully construct and equip
the Facility. Despite any such payments by Tenant the completed Facility
shall be owned by the City. Said Bonds will be authorized by an ordinance
of the Landlord hereinafter sometimes called the "Bond Ordinance," a copy
of which ordinance is attached hereto and made a part hereof.
Concurrently with the execution and delivery of this Lease
and Agreement:
(a) Tenant has caused to be conveyed to Landlord the
fee simple title to the Land hereinafter described, including any
improvements now thereof, free and clear of liens and encumbrances.
(b) Tenant has delivered to Landlord construction plans
and specifications for the buildings and appurtenances to be con-
structed thereon.
NOW, THEREFORE, in consideration of the premises, of other
good and valuable considerations and of the mutual benefits, covenants
and agreements herein contained, the parties hereto agree as follows:
SECTION 1. PREMISES DEMISED. Landlord leases to Tenant
and Tenant hires from Landlord, subject to the terms and conditions
of this Lease and Agreement, and subject to the terms and conditions
of a lease from Jack D. Watson, Trustee, to the John Deere Company, a
copy of which is annexed hereto, the following:
(a) The following described real estate in Saline County,
Kansas, as and when owned by the Landlord in fee simple, to -wit:
A tract of land lying in the Southwest Quarter
(SW/4) of Section Fourteen (14), Township Fourteen
(14) South, Range Three (3) West of the Sixth
Principal Meridian in Saline County, Kansas, des-
cribed as follo;A:s : • from the southwest corner of
said Southwest Quarter (SW/4), thence east on an
assumed bearing of North 9000' East.along the
south line of said Southwest Quarter (SW/4) a
distance of 1771, feet to a point on the east
right-of-way line of U.S. 81 Highway Bypass ex-
tended, thence North 0°58'45".East along said
cast right-of-way Line and parallel with the east
line of said South,�Ilest Quarter. (S14/4) a distance
of 1309.5 feet to the Point of Beginning, thence
North 90°0' east parallel with south line of said
Southrr^�7,t Quarter a d1stance of 875.30 fact
to a t 010f, oil easi, lin(. or -,,aid Southwest Quarter,
sa_Ld ea.,, -,t line a1 so beinf; the right-of-way
line of the I.11ssouri- Pacific 1lai_lrnad, thence
South 0`58'45" Wert along th(� e,3st l.i.ne of „a_i.d
2.
11
1
1
Ll
•
"oIt, h,.'ru:-t; Quart, (-,1, (std/11) a (ti;;tancC of 300 I*CtE t ,
%hence :)oath 90°0' LJr�;�,L p•� r��llcl_ V,ith L11C ,�0,if;h
line o.:'., Qu,_ ,,,Ler (;'):I 11 ) a d:i_stance
of_75.0 feet to a point on t;he east riE:;ht-of
Linc of U. S . 81. F[i „hr;av }3���;�L�:,._ , t!Iencc NoI�tli
0058'11'J" East along said east; rit 1t, -of-. ay line a
distance of 300 feet to the point of beinnlnt;,
beinor the s�uae lend described in Saline County,
Kansas Recorder deed book 1.72 page 2112, an in-
denture between the Salina Building Company, Inc.
and John Deere Plow Company of Kansas City,
(b) All improvements as defined in Section 26 hereof,
constructed thereon and to be constructed thereon, i.ncludin- all
equipment, machinery and fixtures which are a part of such improvements.
(c) All accretions, easements and appurtenances belonging
or in any wise appertaining to the Land.
All of the above are included within the meaning of the term "Facility"
as used herein.
SECTION 2. CONSTRUCTION OF FACILITY BY LANDLORD. Landlord
covenants to cause the additional improvements to be constructed in
accordance with plans and specifications prepared by Tenant and
approved by Tenant, which plans and specifications shall include an
itemized list of the equi.prnent, machinery and fixtures which are to be
purchased or acquired from the proceeds of the Bonds and are to
constitute a part of this Facility, and to pay for the same as provided
in this Section. After consultation with Tenant, Landlordereby
RL I- I, I't , t) L.,t.
designates and appoints as Project
Manager and as La.ndlord's duly authoraj_ed a;ent to perform and exercise
certain of the authorities, directions and elections of Landlord and
to supervise the acquisition of the land and exi_ntin� improvements and the.
construction of the additional improvements covered by said plans and
specifications and who may direct the Trustee to male payi:lent:i out; O
the proceeds of the bonds and further dosignate:-, and appoints
Virgil Warren
as successor ProjectI�ana�cz'. `the Parties
agree t -hat, tnc Lan ll.orci sh�_m ai,rard a eon..triict i_on contract, or
-1 U. -I,
or may peri:ilt Tenant to atioiard such contr_).cts, to L�inci.lord':;
approval_ a.n,t rectui.rc anal
•
•
all payments and all liability of Landlord under such contract; or
contracts shall be limited to the proceeds of the bonds, and none
of Landlord's other funds shall be in any manner obligated on such
contract or contracts. Landlord and Tenant shall have the right to
remove and from time to time designate a new Project Manager. The
Project Manager shall direct reimbursement to the Tenant for sums
theretofore expended by it for engineers' and architects' fees, fiscal
fees, attorneys' fees and other similar payments. All such directions
ftha1l',-be supported by detailed lists showing descriptions of items and
prices and a copy shall be transmitted by the Project Manager to Landlord
and -another copy to Tenant.
It is contemplated that the net proceeds of the Bonds may
be insufficient to fully pay all sums required to be paid to fully
complete the acquisition and construction of the Facility, including
any additions and extras, lien free.. Tenant hereby agrees to pay
any such deficiency by making such payments directly to the contractors
or suppliers and Tenant. shall save Landlord whole and harmless from any
obligation to pay such deficiency. Tenant shall not make any major
change in or amendments to the construction contracts which will_ affect
the basic size or character of the Facility without Landlord's prior
written consent. However, Tenant may request the Project Manager to
make routine changes and alterations in the plans and specifications
and so long as such changes do not impair the market value or usefulness
of the Facility or change the character of the structures thereon,
the Project Manager shall authorize such changes to be made. Tenant
agrees to pay any excess costs which may result from any such changes,
to the extent that such costs exceed the amount available from the bond
proceeds for construction. In addition, Tenant covenants that it will
pay or cease to be paid any and all additional expenses reasonably
required in connection with this Lease and Agreement and the Bond
Ordinance, i.ncludin1-; but not limited to publication expense, bond
pri_ntini and attorneys' fees to the extent that such expen.>es exceed.
1
I
1
•
•
the amount available from the bond. proceeds, including all necessary
administrative expen..es of the Landlord incurred during the term
of the Lease. All costs of platting, or zoning; or other governmental
building requirements shall be complied with and paid for by Tenant.
SECTION 3. DELIVERY OF POSSESSION TO TENANT. Landlord
agrees to place Tenant in full possession of the Facility immediately
upon completion of the additional improvements thereto. Tenant or its
agents and employees shall also, prior to completion of the improve-
ments, be permitted to enter and use the Facility for any reasonable
purpose.
SECTION 4. TERI14. The term of this Lease commences November 1,
1973 and shall end November 1, 1985, subject to prior termination as in
this Lease and Agreement specified, but to continue thereafter until
all of the Bonds and all interest thereon shall have been paid or
provision made for their payment, and is herein called the "Term."
•SECTION 5. BASIC RENT AND ADDITIONAL RENT.
(a) BASIC RENT. Tenant shall pay to Landlord as basic rent
the sum of $3,000.00 on the first day of November, 1973, and a like
sum on the first day of each month thereafter to and including the
first day of October, 1985.
Tenant may at any time prepay all or any part of the basic
rent provided for hereunder.
If at any time the amount held by the Trustee, as provided
for in the Bond Ordinance, is sufficient to pay in full the principal
of (including redemption premium, if any) and interest on all out-
standing Bonds, either at maturity, or on earlier redemption and the
Landlord and Trustee hereinafter designated have caused all of the Bonds
to be called for redemption and payment, then no further basic rent
shall be payable hereunder, and any funds r.,epresent ing payment of basic
rent, i%,h1ch are then field by the Trustee and are in excess of the amount
t}i,� f3oj f In full a�-if��1��:�sa.id shrill be rc,[`lndi-d to Tennnt:
a., excess rant.
J•
(b) ADDITIONAL RENT. Tenant shall pay as additional rent
all Tmpositions (as defined in Section 7 of t}11s Lease),- costs, expenses,
liabilities, obligations and other payments of whatever nature which
Tenant has agreed to pay or assume under the provisions of this Lease
and Agreement, and also such sums of money, in addition to basic
rent, as shall be necessary to pay in full the principal of and in-
terest on all the Bonds remaining outstanding November 1, 1985,
and all other sums necessary to fully retire the Bonds. If -at any time
any amounts paid by Tenant to the Trustee as additional rent are or
become in excess of the amounts required for the purpose for which they
were paid, such excess amounts shall be refunded to Tenant.
(c) CHARGES, FEES AND EXPENSES OF TRUSTEE AND PAYING AGENT.
Tenant shall pay the fees and expenses of the Trustee and Paying Agent
for the Bonds as provided in the Bond Ordinance, semiannually or annually
as statements are rendered by said Trustee and Paying Agent and fur-
nished to Tenant.
Basic rent and additional rent shall be paid on the dates specified
or as required, without notice or demand, and without abatement or
setoff whether or not the additional improvements to the Facility
shall have been completed and whether or not Tenant shall have taken
possession of the Facility, notwithstanding legal curtailment of
Tenant's use of the Facility, change in Landlord's legal organization
or status, or any default of the Landlord and regardless of the invalidity
of'any action of the Landlord, it being the intent hereof that except
as herein specifically set forth, Tenant shall be absolutely and un-
conditionally obligated to pay such basic and additional rent. Guarantor
hereby absolutely and unconditionally guarantees said obligation of
Tenant..
6.
SECTION 6.
MANNER OF PAYVIEIIT OF RENT.
Basic rent
shall
be paid
to Landlord
by Tenant reini.ttIng the same
directly to
the
Trustee
for the account
of Landlord, and shall be
deposited
by the
Trustee
as provided
for in the Pond Ordinance, to
be used by
the
6.
Cl
Trustee as provided in the Bond Ordinance. 1Jandlord agrees to cause
the Trustee to furnish to Tenant annually and at other reasonable
intervals as requested, an accounting of*the funds paid to it and
disbursements made by it. Additional rent specified in Section 5 of
this Lease, except impositions as defined in Section 7 of this Lease,
shall be paid to Landlord by Tenant remitting the same directly to
the Trustee for the account of Landlord to be deposited by the
Trustee and used as provided in the Bond Ordinance.
SECTION 7. PAYMENT OF IMPOSITIONS. Subject to the pro-
visions of Section 8, Tenant shall pay to the authorized governmental
collection agency all taxes and assessments, general and special,
if any, levied and assessed on the Facility during the Term, and all
water and sewer charges, assessments and other governmental charges
and impositions whatsoever, foreseen and unforeseen, which if not
paid when due, would impair the pledge of the Facility or the gross
rentals from the Facility or the security of the Bonds, or encumber
Landlord's title, all of which are herein called Impositions; provided,
however, that any Imposition relating to a fiscal period of the taxing
authority, part of which extends beyond the Term, shall be apportioned
as of the expiration of the Term. Landlord shall promptly forward
to Trustee and,to Tenant any notice, bill or other advice received by
Landlord concerning any Imposition. Tenant may pay any Imposition
in installments if so payable by law, whether or not interest accrues
on the unpaid balance. Tenant shall promptly forward to Landlord
and to the Trustee certification or other evidence satisfactory to
Landlord and to Trustee of payment in fu] -1 or part of any Imposition.
Subject to the provisions of ,Section 8 hereof', Guarantor hereby
expressly guarantees the payment of al_ Impositions which Tenant is
obligated to pay under the provisions of this Lease and Agreement,.
SECTION 8. CONTEST 010 IMPOSITIONS; PAYI1IFNT IN LIEU O
`I'AXF,S. `Tenant, has entered into this Lease and Agreement in contemplation
that under the law of K'an::as the Facility cannot be lega.]A_y subjected
LU iltl _J�Yi (iPc tii LCL%tt I'Oi' Uf LCll '(10) calendar ye;,I,.i c
7•
calendar year in which raid Industrial Development Revenue Bonds
are issued. Landlord covenants that, except as provided in Section 214
and except as provided in this Section 8•with respect to payments in
lieu of taxes, it will not voluntarily part with title to the Facility
assessment be threatened or occur, Landlord shall, at Tenant's request,
fully cooperate with Tenant in all reasonable ways to prevent or contest
any such levy or assessment. Tenant shall have the right in its own
or Landlord's name or both to contest the validity or amount of any
Imposition by appropriate proceedings timely instituted, provided Tenant
gives Landlord, Guarantor and the Trustee written notice of its in-
tention to contest and diligently prosecutes such contest and at all
times effectively stays or prevents any official or judicial sale of
the Facility by reason.of non-payment of any Imposition. Tenant and
Guarantor shall hold Landlord or Trustee whole and harmless from any
costs and expenses Landlord or Trustee may incur related to any such
contest; and promptly.pay any valid final judgment enforcing any
Imposition and cause the same to be satisfied of record. Guarantor
hereby expressly guarantees the prompt payment and satisfaction of
record of any such valid final judgment.
As a further consideration for the leasing of the Facility
herein provided for, Tenant covenants and agrees to pay to Landlord,
- in addition to all other sums due hereunder, an annual amount designated
as a payment in lieu of taxes in accordance with the provisions of K.S.A.
1972 Supp. 12-1742, during each year that the Facility is exempt from
ad valorem taxes by virtue of any present or future provision of the
Constitution or laws of the State of Kansas. Such payments shall. be
made on or before the first day of November in each year during the
period aforesaid, and shall be made direct to the Trustee who shall
promptly remit such payment to the Saline County Treasurer. The amount
of each payment shall be a sum equal to the actual annual ad valorum
taxes levied agai..nst the Facility in the calendar year In whish said
Indo trial Development Revenue Bond,; are issued.
8.
or any part thereof during the
Term or take any
other action which
may reasonably be construed as
tending to cause
or induce levy or
assessment of ad valorem taxes
on the Facility
so long as any of the
bonds be outstanding and unpaid
or for said ten
(10) year period,
whichever shall be the shorter
time, and should
any such levy or
assessment be threatened or occur, Landlord shall, at Tenant's request,
fully cooperate with Tenant in all reasonable ways to prevent or contest
any such levy or assessment. Tenant shall have the right in its own
or Landlord's name or both to contest the validity or amount of any
Imposition by appropriate proceedings timely instituted, provided Tenant
gives Landlord, Guarantor and the Trustee written notice of its in-
tention to contest and diligently prosecutes such contest and at all
times effectively stays or prevents any official or judicial sale of
the Facility by reason.of non-payment of any Imposition. Tenant and
Guarantor shall hold Landlord or Trustee whole and harmless from any
costs and expenses Landlord or Trustee may incur related to any such
contest; and promptly.pay any valid final judgment enforcing any
Imposition and cause the same to be satisfied of record. Guarantor
hereby expressly guarantees the prompt payment and satisfaction of
record of any such valid final judgment.
As a further consideration for the leasing of the Facility
herein provided for, Tenant covenants and agrees to pay to Landlord,
- in addition to all other sums due hereunder, an annual amount designated
as a payment in lieu of taxes in accordance with the provisions of K.S.A.
1972 Supp. 12-1742, during each year that the Facility is exempt from
ad valorem taxes by virtue of any present or future provision of the
Constitution or laws of the State of Kansas. Such payments shall. be
made on or before the first day of November in each year during the
period aforesaid, and shall be made direct to the Trustee who shall
promptly remit such payment to the Saline County Treasurer. The amount
of each payment shall be a sum equal to the actual annual ad valorum
taxes levied agai..nst the Facility in the calendar year In whish said
Indo trial Development Revenue Bond,; are issued.
8.
1
SECTION 9. INSURANCE.
(a) COVERAGES REQUIRED. Until construction of the
additional improvements to the Facility are completed Tenant shall
cause to be kept in force the insurance coverages provided for in the
Construction Contract and deliver to Landlord and to the Trustee
duplicates of the Certificates there provided to be delivered to
the Landlord, and cause Landlord to be named as an additional insured
under the policies provided for. At or before the termination of
the insurance under the Construction Contract and otherwise throughout
the Term, Tenant shall keep the entire Facility insured against loss or
damage by fire and extended coverage in amounts sufficient to prevent
Landlord or Tenant from becoming a co-insurer within the terms of
applicable policies and equal to -one hundred percent (100%) of the
full insurable value thereof, subject to a maximum deductible amount
of $25,000.00. The term "full insurable value" means such value as
shall be determined from time to time at the request of Landlord or
the Trustee (but not more frequently than once in every twenty-four
months) by an architect, contractor, appraiser, appraisal company or
one of the insurers selected by Tenant.
In addition, the Tenant shall maintain policies of general
liability insurance in the amount of not less than $100,000.00 for
any one person, $300,000.00 in any one accident and $50,000.00
property damage with no deductible amount.
(b) DEPOSIT OF INSURANCE POLICIES. Not more than fifteen
(15) days after completion of the additional improvements to the
Facility, and thereafter not less than fifteen (15) days prior to -
the expiration dates of the expiring policies, originals or certificates
of the policies provided for in this Section, each bearing notations
evidencing payment of the premiums or other evidence of such payment
9.'
satisfactory to the Trustee, shall be delivered by Tenant to the
Trustee. Tenant may procure and keep in force, in place of separate
policies, blanket policies of insurance having the same coverage
and provisions as are herein required, and in such case shall deliver
an attested copy of the blanket policy or policies stating the amount
allocated to the Facility.
(c) PROVISIONS OF INSURANCE POLICIES - SELECTION OF
INSURERS. Subject to the provisions of Section 19 hereto and the
limitations hereinafter in this Section set forth, policies of in-
surance provided for in this Section shall:
(i) name Landlord and Tenant as assureds as their
respective interests may appear and except as to general
liability insurance shall be payable to the Trustee;
provided, however, that loss under all policies shall be
adjusted with the insurance companies by Tenant, subject
to the approval of the Trustee in case of any loss in
excess of Twenty Thousand Dollars ($20,000), except with
respect to losses under such general liability insurance,
and shall not be cancellable without at least ten (10)
days' prior written notice to Tenant and the Trustee;
(ii) provide that loss thereunder shall be adjusted
and paid for as aforesaid; and
(iii) be in effect with insurers selected by Tenant
subject to the reasonable approval of the Trustee.
(d) NO RIGHTS OF SUBROGATION. No claim shall be made
and no suit or action at law or in equity shall be brought by Land-
lord or by anyone claiming by, through or under Landlord against
Tenant for any damage to the Facility, however caused, to the extent
the same is covered by insurance as in this Section requi.rcd, provided
.that nothing In this Section containczd shall dirlin:i.sh Tenant's ob-
lii at3_on to repair or rebuild as provided in Section 19 hereof.
1-0.
c, �, Jr� r�,• r� r r� Tenant has the right .
.S1_,(' I ION 10. AL'P Iii ION O111� IICILI l Y .
from time to time to make additions, alterations and changes in or
to the Facility and to construct new improvements on the land not
theretofore occupied by buildings or structures; provided, however,
that no alteration shall be glade which would impair the market value
or usefulnoss of the Facility or change the character of the structures
thereon so that the same will not be appropriate and usable, provided
further, however, that no major change which will require expenditure
of more than x;25,000.00 by Tenant shall_ be made to the Facility
without the prior approval of the Landlord, which approval shall be
deemed to have been given if such change is not disapproved within
fifteen (15) days after written notice to the City Clerk, specifying
the nature of such proposed change. All alterations and additions
shall be deemed a part of the Facility and covered by the pledge of
the Facility; provided, however, that additions and improvements made
by Tenant after completion of the Facility, not purchased or acquired
from°the proceeds of the sale of the bonds and not constituting re-
pairs, renewals or replacements of items so purchased or acquired,
may be demolished or removed by Tenant at any time with the prior
written approval of the Trustee, but Tenant shall repair any damage
to the Facility occasioned by such demolition or removal.
SECTION 11. PUBLIC UTILI`hIES. Tenant shall provide or
cause to be provided all necessary facilities to supply all needed
utilities on the Facility, and shall pay or cause to be paid all
charges for utilities so supplied and obtain all required permits
and licenses and indemnify and save Landlord harmless against any
costs, expenses, liabilities or damages related to utilities supplied
to the Facility.
S"CTION 12. INSPlCTION OY FOCILITY• Tenant shall permit
the Landlord and the Trustee, by their nuthori.:,ed repro: enta�;ivr.: ,
to enter the Facility at all reasonable times durint; u:,u al
hourf; for pl.l7 po ; c of inspec, Lion ,:nd the perf.of ,,,,y jgc)1•1
therein made necenvNry by renron of JA11 <ont, s curt ult under roil, of
11 .
the pi•ovi. •i
ot1: of., th:i_'. 1_,ca:.c quid J10rcctrtenL. The parLie'; aLT'I'cc that
Landlord "ball_ make or cL711:,0 to be made by the Landlord's engincerinU
staff or other qualified personnel a bi.enn_i_:i1. inspection of the
Facility and cause a written report of such 'inspection to be filed
with the City Cleric, and a copy thereof to be furnished to Tenant.
The cost of such inspection shall be borne by Tenant. Said report
shall review the adequacy of maintenance 'procedures with respect to
the Facility, and Tenant agrees to comply with Landlord's reason-
able requests with respect to its recommendations as to improvements
in maintenance procedures on the ;;Facility.
SECTION 13. USE OF FACILITY - COMPLIANCE WITH LEGAL
AND !NSURANCE REQUIREMENTS. Subject to the following provisions
Of this Section, Tenant and Landlord agree that Tenant may use the
Facility for any lawful purpose. Tenant shall during the Term
promptly comply with all valid statutes, laws, ordinances, orders,
judgments, decrees, regulations, directions and requirements of
all Aderal,-state, local and other governments or governmental
authorities, now or hereafter applicable to the Facility or to the
adjoining public ways, as to the manner of use or the condition of
the Facility or of adjoining public ways. Tenant shall, however,
have the right to contest any of the foregoing, and if compliance
therewith may legally be held in abeyance during such contest
without incidence of any lien on the Facility, Tenant may postpone
compliance until final determination of such contest provided such
contest shall be prosecuted with due diligence; and even though a
lien against the Facility may be incurred by reason of such non-
compliance, Tenant may nevertheless delay compliance therewith
during contest thereof, provided Tenant:, if requested, furnishes
Landlord reasonably satisfactory security against any loss by
reason of such lien and effectively prevents foreclosure thereof.
Tenant shal__1. dur:i_riC the Term comply with the mandatory requirements,
rules and rcgulat i.oiis of all :insures under they policies required
to be carnied under the proviniuns 6f 1) llol-enf%
TP.
SECTION 111. I E'I'AIRS AND MA_CNTE.NANCK'. Sul)Jcct to the
provisiolls of f;cct:ion 19 hereof, Tenant shall }.ecp file facility :i.ri
good and tenantable condition and repair durin,,; the Term and, upon
expiration or termination, shall surrender the Facility to Landlord
in as good condition as when Tenant tigas put in possession thereof,
ordinary 1%lear and tel -r excepted.
SECTION 15. WORK BY TENANT ON THE FACILITY. Tenant
shall not do or permit others under its control to do any work on
the Facility related to any repair, rebuilding, alteration of or
addition to the Facility unless Tenant shall have first procured
and paid for all requisite municipal and other governmental permits
and authorizations. Landlord shall join in the application for any
such permit or authorization whenever required, but Tenant shall
indemnify and hold Landlord harmless against and from all costs
and expenses which may be thereby incurred by Landlord. All such
work shall be -done in a good and workmanlike manner and in compliance
with all applicable building, zoning and other laws, ordinances,
governmental regulations and requirements and in accordance with
the requirements, rules and regulations of all insurers under the
Policies required to be carried under the provisions of Section 9
hereof.
SECTION 16. LIENS. If any lien shall be filed'against
the interest of Landlord or of Tenant in the Facility or asserted
against any rent payable hereunder either (i_) by reason of work,
labor, services or materials supplied or claimed to have been
supplied on or to the Facility at the request or with the permission
of Tenant or of anyone claiming under Tenant, or (ii) for any
other reason except: a claim against Landlord (and not `I'en,tnt) un -
elated to the transactions herein conter;;plated, Tenant
ithin thirty (30) days after notice of the f:il:1_11i ttlereof or the
assert;ion t;hr roof a�; �i11: t such �.r;t:;, c ,u'c the .game to
char ;C'( of -r'ocorrJ., or ef•j',.,_.tJ-,,-('1_y j.)I:'C'Jr,tit Lh,(, C:111�O1`i'r�ri�">'�1t rig f'r.o- '-
clor;ure fAtel'(2of the P,'wJl:i.ty or ,;uch rcrrt.;,, by contc�.st,
Payment, depo.".11" bond, order of court or othcl2J_iz;c. Nothing con-
tained in this Leta ,c and /1t;i c ement )11,211 be con-.trued as constituting
the express or implied consc�2zt to or permission of Landlord for the
performance of any labor or services, or the furnishing of any materials
that would give rise to any :;Lich lien against Landlord's interest
in the vacili.Ly. Gii,:.rantor expressly guarantees the performance of
Tenant of its obl.i )a'-J_ons uncler this Section 16.
SECTION 17. INDIsMI.ITFICATION OF LANDLORD AND TRUSTEE.
Tenant and Guarantor shall indemnify and save.Landlord and the
Trustee harmless against and from all claims by or on behalf of
any person, firm or corporation arising from the conduct or manage-
ment of, or from any work or thing done on, the Facility during the
Term, and against and from all_ claims arising during the term from
(a) any condition of the Facility, of (b) any breach or default
on the part of Tenant in the performance of any of its obligations
under this Lease and Agreement, or (c) any act or negligence of
Tenant or of its agents, contractors, servants, employees or
licensees, or (d) any accident, injury or death of any person or
damage to any property occurring in or about the ',Facility. Tenant
.and Guarantor shall indemnify and save Landlord and the Trustee harm-
les.s from and against all costs and expenses incurred in or in
connection with any such .claim arising as aforesaid or in conriection
with any action or proceeding brought thereon, and upon notice from
Landlord or the Trustee, Tenant or Guarantor shall defend them or
either of them in any such action or proceeding.
SEC`T'ION 18. LANDLORD MAY PERFORM TENANT'S OBLIGATIONS'.
If Tenant shall fail to keep or perform any of its obligations as
provided in this Lease and P.greement in respect of: .(a) maintenance
of insurance; (b) payment, of Impositions; (c) repair.-, and maintenance
of, the I1'aci.l.ity; (d) compliance with legal or insurance requirenler2t;
(e) keep=i-ric, tiie Pacil_i_ty lien free, or J_n mal::i_n ; of tiny other pay-
ment or hF ��forrar�nc��.� cif' r:ny �>t.l�c�r oh]..-ii,-_tion, tholi 1',�tndlorcl ,lay (but
shall not be
sc)
to
do)
upon
the continuance of such
failure on
Tenant's part
for
sixty
(60)
days
after written notice
to Tenant, and without waiving or releasing Tenant from any obli.ga-
tion, as an additional but not exclusive remedy, make any such
payment or perform any such obligation, and all sums so paid by
Landlord and all necessary incidental costs and expenses incurred
by Landlord in performing such obligation shall be or at Landlord's
option may be added to any installment of basic rent thereafter
falling due, and if not so paid by Tenant, Landlord shall have the
same rights and remedies as in the case of default by Tenant in
the payment of basic rent.
SECTION 19. DAMAGE TO FACILITY.
(a) If, during the Term, the Facility shall be damaged
by fire or other casualty, in excess of $25,000, Tenant shall im-
mediately notify the Trustee, and unless Tenant shall have elected
to exercise the option to purchase provided for in rection 29, the
Tenant shall promptly and with reasonable diligence, proceed to
repair, remodel and rebuild the Facility.. Tenant shall be reimbursed
for the cost of the above out of the proceeds of the insurance upon
receipt by the Trustee of:
(1) A certificate signed by an officer. of Tenant:
(i) requesting payment of a specified amount
of such.proceeds;
(A) describing in reasonable detail the (a)
work and materials applied to the repair,
remodeling and rebuilding, and in place,
and (b) the equipment and machinery re-
moved and purchased;
(iii) stating that such specified amount: does
not exceed the cost of such work and
materials npplied an afopenaid, the cost
of rcmavi.nL; z>>)d i)t�rr.�hr.�;;.i.n�; c�{u.i.i;�rl,�I)t; Nnd
much twiW tinct Wfw r (u:; W; :i r)�nirinad ill
•
•
connection tlierc: ,J .th,. p1.1l;; the fees of
the arcii_i.tect or eriu;:ineer, ':i.f' ally; and
(iv) stating that no part of itch cost his
previously
been
made the basis
of any
request
for the
withdrawals
of
such insur-
ance pro -cods.
(2) A certificate of an architect or engineer selected
by Tenant and approved in writing by the Trustee,
which approval shall not be unreasonably withheld:
(i) stating that the work and materials des-
cribed in the accompanying officer's
certificate were necessary or appropriate
to the repair or rebuilding and are in
place;
stating that the amount specified in such
certificate does not exceed the reasonable
cost of such work and materials; and
(iii) specifying the additional amount, if any,
required to complete the repair, remodeling,
or rebuilding.
(b) If, during the Term, the Facility shall be damaged
by fire or other casualty, in the amount of $25,000.00 or less,
Tenant shall i.rnmediately notify Trustee and shall promptly proceed
to repair the Facility. Tenant shall be reimbursed for the cost of
repair out of insurance proceeds, if any, upon receipt by Trustee of a
certificate in the form specified in subparagraph (ii) of paragraph
(a) of this Section 1_9.
(c) Any excess of proceeds recovered by the Tru-stee over
and above the cost of performing the aforesaid repairs, remodelin-
and rebu:i.ldJnC tnd remaval of equiprncnt rind purctla: c of other
rri(:�nt ;tia1_:! be dopn"';.i_te(I by th(� and used _i s prov:i ded in
the L'ond
.G.
SHICTION 20. CONDI;MNA`i'TON.
( a) TENANT'S OP`1':I:ON IN EVENT OIC' CONDEMNATION. ON. `1'he right
of Tenant to excrc:i:,e its options to Purchase the Facility Lender the
provisions of ecti.on <� shall remain uni,zipaired notWithc,tandinC, any
taking by etn:inent; cio;r,clin of title to, or of the right of tomporary
use of, all or part of the Faci.li.ty, and the fo.11o-wing provisions
of this Section shall be construed in the light of the effect of
any such option exercised by Tenant, and if Tenant shall exercise any
such option and pay thepunccase price, the entire condemnation award
shell belong and be paid to Tenant notwithstanding any other provisions
Of this Section.
(b) TAKING OF ALL OR SUBSTANTIALLY ALL _OF THE FA-CILI`I'Y.- _.
If during the Term title to all or substontially all of the Facility
shall be taken in any proceeding (hereinafter referred to as the
Proceeding) involving exercise of the right of eminent domain,
this Tease and Agreement (except as to the follo,,aing provisions of
this paragraph (b)) and the Term hereof, and all right, title and
interest of Tenant in the Facility shall_ come to an end at midnight
of the thirty-first (31st) day after the ,resting of title pursuant
y
to the Proceeding, and the Trustee shall be entitled to receive the
entire award, wl-ii.ch ai-;ard T'eiZant- hereby assigns to the Trustee. The
phrase "net award" as used in each of the paragraphs of this Section
means the total amount a;•jarded as compensation for the part of the
Facility taken, plus damages to any part not taken, after deducting
all attorneys' fees and other expenses and costs incurred in the
Proceeding by the party to whvr(1 the award is payable and after deduct-
ing any amounts which Tenant is entitled to receive pursuant to sub-
section (d) of this Section. %If the net a;iard Shall be insufficient,
ogether with the amount then in the several Accounts more fully
escribed in the Bond 03_•di.n.ince, to pay i:l fill -.l oil the next 111tere"'t
payment date tif.ter receipt of,' ttj(a:rrird, Ule rlmo�111t nece ;s�:ry to ply
al_l..,.i";:i]., .T"i�i't'(::;U, lt'Ill;LLI:':J iftt:;, 1.'C'C)efllli[.:iOrl pY'('CII:LLlifl:%, and al.l_
other costs
of
rc dcnlpt:I.�11,
'fellant shcl:il pay such du1fic1_cllcy as
additional
I'eI1t.
Ally excc.-,s
of the
011111 of thc-l)ct
award plus the
amount then
in
the several
Accounts
more re fully
described 1.21 the Bond
Ordinance over
the amoullt
I'erIllil'ed
to m,,, le the
aforesaid payments. on
account of
the
Bonds shall
be paid
to Tenant.
For the purposes of
this parr graph (b) and of 1)�1ra[;raph (c) of this Section, "all or
substantially all of the Facility" shell be deemed to have been
taken if the taking, under any Proceeding shall involve such 'an
area, or such impairment of access to the Facility over public high-
ways., that Tenant cannot in its opinion, evidenced by notice to
Landlord and the Trustee given within thirty (30) days after the
filing.of the Proceeding, reasonably operate its business in the
remainder in substantially the same manner and as satisfactory to it
as before.
(C.) -.TAKING OF LESS THAN ALL -OR SUBSTANTIALLY ALL OF THE
FACILITY. If during the Term title to less than all or substantially
v
all of the Facility shall be taken in any -Proceeding, neither the
Term nor
any of
the
obligations of e=ither
party under this Lease and
Agreement
shall
be
reduced or affected in
any way, and:
(i) If any part of the Facility is taken or damaged,
Tenant shall proceed to repair or rebuild the remaining
part as nearly as possible to the condition existing im-
mediately prior to such taking or damage, to the extent
that the same may be feasible, subject to such alterations
as Tenant may elect to make as permitted by Section 10;
(ii) If no part of the Facility is taken or damaged,
the net award shall be paid to the Trustee and deposited
and applied as provided in the Fond Ordinance, but basic
monthly rent :_hall not be thereby reduced.
If, in such C. -Ise
-11Y par. t of. the Facil:i_ty i.s t<lken or damaged,
Tenant prompt-ly I'n(l 1-r_i_t'h dil-i_gerIce z)rc)(I-ed to
rep':i.r arld rehit_i ld t'he Far -11.-1.1,y, "]lid tl-w rv�t �,�1�1rd, a f t;c1, rc::ilnl�ur�r,�-
18.
111ent of '.1'cta.1tit for :�Ilch repai.i• coat, :;hall be •pai.d to Lh(_
and depoai.L:ed and u:,ed a,: aet out in the Fond Ordinance.
(e) TAKING FOR A LIMITED PERIOD. If.the use, for a
limited period, of all or part of the Facility shall be taken by
right of eminent domain, this Lease and Agreement shall not be
thereby terminated and the parties shall continue to be obligated
under all of its terms and provisions. If such taking is for a
period of time ending on or prior to the expiration of the Term,
Tenant shall be entitled to receive the entire amount of the award
made -for such taking, whether by way of damages, rent or otherwise, and
in such case shall, at the termination of the period of such taking
and upon being restored to possession, restore the Facility as nearly
as may be possible to the condition existing immediately prior to
such taking. If such taking is for a period which extends beyond
the expiration of the Term, Tenant shall be entitled to receive
that portion of the entire award allocable to the period of time
from the date of such taking to the date of the expiration of the
Term and Landlord shall be entitled to the amount allocable to the
remainder of such period.
(d) AWARD
FOR TENANT'S PROF'i?RTY. Tennant
With the viri.tten
right to receive any
award made in any Proceeding for
be unreasonably
taking of Tciiant', o.:n
p2 s)crt y and al _1 other
meets; all of the
awarded ottaer.:i, e th,tn
asco:"pensati.on for the
may this
and of Tenant; in the
part of the Facility taken and as
da ,iages • to the
part not taken.
(e) TAKING FOR A LIMITED PERIOD. If.the use, for a
limited period, of all or part of the Facility shall be taken by
right of eminent domain, this Lease and Agreement shall not be
thereby terminated and the parties shall continue to be obligated
under all of its terms and provisions. If such taking is for a
period of time ending on or prior to the expiration of the Term,
Tenant shall be entitled to receive the entire amount of the award
made -for such taking, whether by way of damages, rent or otherwise, and
in such case shall, at the termination of the period of such taking
and upon being restored to possession, restore the Facility as nearly
as may be possible to the condition existing immediately prior to
such taking. If such taking is for a period which extends beyond
the expiration of the Term, Tenant shall be entitled to receive
that portion of the entire award allocable to the period of time
from the date of such taking to the date of the expiration of the
Term and Landlord shall be entitled to the amount allocable to the
remainder of such period.
1-9.
SECT101\1 21. ASSIGNMENT AND SUBLETTING.
With the viri.tten
consent of the Landlord (Which consent shall not
be unreasonably
withheld,
if the propor,c:.d a:;siLnee or sublessee
meets; all of the
criteria
orit;irially i mpos ed upotl '1-'enanf;) , Tenant:
may this
Lease or
sublet; the pLicility or part tliez•eof•, provided that no such
1-9.
assignment or subletting and no dealings or transactions between
Landlord or the Trustee and any subtenant or assignee shall relieve
Tenant or Guarantor of any of its obligations under this Lease and
Agreement, and Tenant and Guarantor shall remain as fully bound as
though no assignment or subletting had been made, and performance
by any assignee or subtenant shall be considered as performance pro
tanto by Tenant, provided, however, that if Tenant shall assign this
Lease and Agreement as part of a transaction involving the merger or
consolidation of Tenant or Guarantor with or into, or the sale of
all or substantially all of Tenant's or Guarantor's assets to,
another corporation or corporations, and such assignee corporation
shall expressly assume and agree to perform all of Tenant's obliga-
tions under this Lease and Agreement, Tenant shall be released of
all thereafter accruing obligations under this Lease and Agreement,
but only upon condition that, and effective when, Tenant shall have
furnished the Trustee and Landlord with evidence in the form of
financial.statements certified by an independent certified public
wholly owned subsidiary of Guarantor, provided the net asset value
of the resulting corporation is not less than the net assets of Guarantor
at the time of such merger or consolidation. Notwithstanding anything
herein contained to the contrary, Tenant may sublet the Facility
to Guarantor or may assign its interest hereunder to Guarantor without
the necessity of obtaining Landl-ord's consent or approval.
SECTION 22. FINANCIAL STATEUIENTS. Guarantor shall within
one hundred and twenty (120) days after the end of each fiscal year
of Guarantor, have an �,_nnual audit prel-;ared of its operation,-, and
shall. pr�ompt)y sub;nit such audits, i%hich ,-hall include a consolidated
balance of Tenant .nd_ of (,uarantor ;)nd their subsidir�r.ic� as
at the end of ::,rich i':iscal y(,ar, ra1.1 in reasorlal>le det�.t:1.1_ and
acco,,,r),-,nied 1,Y "1. or ("ert-iI'le''IL e of j.nt.jcrt�enc;c°n t; cc�,�t; .i_Led puhl9 c
accountant
or firm of
accountants of
recognized standing, establishing
that the net
assets of
such assignee
are .at least equal to the net
assets of
Guarantor as
shown by the
last previous such statement of
Guarantor.
Notwithstanding
anything
herein contained to the contrary,
Tenant may
merge with
or into or consolidate
with Guarantor or any
wholly owned subsidiary of Guarantor, provided the net asset value
of the resulting corporation is not less than the net assets of Guarantor
at the time of such merger or consolidation. Notwithstanding anything
herein contained to the contrary, Tenant may sublet the Facility
to Guarantor or may assign its interest hereunder to Guarantor without
the necessity of obtaining Landl-ord's consent or approval.
SECTION 22. FINANCIAL STATEUIENTS. Guarantor shall within
one hundred and twenty (120) days after the end of each fiscal year
of Guarantor, have an �,_nnual audit prel-;ared of its operation,-, and
shall. pr�ompt)y sub;nit such audits, i%hich ,-hall include a consolidated
balance of Tenant .nd_ of (,uarantor ;)nd their subsidir�r.ic� as
at the end of ::,rich i':iscal y(,ar, ra1.1 in reasorlal>le det�.t:1.1_ and
acco,,,r),-,nied 1,Y "1. or ("ert-iI'le''IL e of j.nt.jcrt�enc;c°n t; cc�,�t; .i_Led puhl9 c
accountants of rccoj7,n1,.Lc,d stand.i_n,, to Truot.eo, Landlord and St'Ifel,
Nicolaus & Co., Inc. Tn addition, Tenant and Guarantor sh�:tll furnish
to Trustee, Landlord, and Stifel, Nicolaus; & Co., Inc. cop=ies of all
reports sent to Tenant's and Guarantor's stockholders other than
routine reports enclosing; dividend checks.
SEICTION 23. PRIORITY OF LEASE - EIGHTS AND RENLDIES OF
TRUSTEE. This Lease and Agreement and the estate of Tenant hereunder
are and shall continue to be superior and prior to the pledge of the
Facility and the net rentals from the Facility in the Bond Ordinance.
Tenant consents and agrees for the benefit of the Trustee and of the
holders of the Bonds that until payment of all of the Bonds or until
funds sufficient for such payment have been duly provided, this Lease
and Agreement may not be effectively amended, changed or modified without
the concurring written consent of the Trustee and of the holders of
seventy-five percent (75%) in principal amount then outstanding of the
bonds, all as permitted and provided in the Bond Ordinance, and that
the Trustee has and may exercise, by right of subrogation to the
Landlord, all rights and remedies of Landlord provided for in this
Lease and Agreement or in the Bond Ordinance, either in its own name
or in the name of Landlord.
SECTION 24. NO CONVEYANCE BY LANDLORD. During the Term,
Landlord shall not voluntarily sell, transfer or convey Landlord's
interest in the Facility except to Tenant or. to the Trustee for
the benefit of the bondholders and shall not encumber Landlord's
interest in the Facility except for the security of the Bonds under
the Bond Ordinance. Landlord does hereby assign to Trustee its
rights under this Lease and Agreement for the benefit of the bondholders
to the extent set out herein.
SECTION 25. Rl:',MI DIES Al*-, CUJMULA`.i'IVE - NO IMPLIED WAIVER.
Landlord, Tenant: and the Trustee, and Guarantor (if Guarantor Mas
the duty and right under Section 30 of t;h-i.s Lease and Afryecmcnt }
2.1 .
shall each be entitled to specif'ic performance, trod injunctive or
other equitable relief for any breach or'threatencd breach of any
of the provisions of this Lease and Agreement, notwithstanding
availability of an adequate remedy at law, and each party hereby
waives the right to raise such defense in any proceeding in equity.
The specific remedies provided forin this Lease and Agreement are
cumulative and not exclusive of any other remedy. The failure of
either party to insist in any one or more cases upon strict per-
formance shall not be construed as a waiver or relinquishment for the
future. No acceptance of rent with knowledge of any default shall
be deemed a waiver of such default.
SECTION 26. IMPROVEMENTS AT END OF TERM - FIXTURES.
Upon termination of this Lease and Agreement or of the*Term herein
provided for by lapse of time or otherwise (except by exercise of
Tenant's option to purchase) the Facility, as consituted at the time,
shall be and become the property of Landlord without requirement of the
payment of any compensation or consideration. The term "Facility"
however, does not, for any purpose of this Lease and Agreement,
include any of Tenant's property or additions or improvements
made by Tenant not purchased or acquired from the proceeds of the
sale of the Bonds and not constituting repairs, renewals or replace-
ments of items 'so purchased or acquired, even though affixed or
attached to the Land, buildings or structures in such manner as, under
the laws of Kansas, the same might be considered to be fixtures and
part of the real estate, and Tenant may, before or within a reasonable
time after such termination remove all machinery, equipment, fixtures,
additions and improvements not part of the Facility under the fore-
going provisions of this Section 26. Tenant shall_ repair any damage
to the Facility occasioned by such removal..
SECTION 27. CONSTRUCTION AND 111FORCEM1`114T. This Lease
and Agreement "hall be construed and enforced in accordance with
the l-'3ws of Kansas. in this and it, I,-,
provided that elther porty shall or will make ORY paymollt or perforiu
or refrain from performing any act or obligation, each such provision
shall, even thout,h not, so expressed, be con5trucd as an express
covenant to make such payment or to perform, or not to perform,
as the case may be, such act or obligation.. Whenever in this Lease
and Agroement it is provided that Tenant shall or will make any
payment or perform or refrain from performing an,y act or obligation,
each such provision shall., even though not so expressed, be also
construed as an express covenant by Guarantor to -guarantee Tenant's
obligations to make such payment or to perform or not to perform such
act or obligation.
SECTION 28. DEFAULT PROVISIONS. This Lease and Agreement
is made on condition that if:
(a) Tenant defaults in the due and punctual payment of
basic rent or additional rent and such default continues for ten (10)
days after such basic or additional rent is due; or
(b) Tenant defaults in the keeping or performance of any
other covenant or obligation herein contained on Tenant's part to be
kept or performed, and Tenant fails to remedy the same within thirty
(30) days after Landlord or the Trustee has given Tenant and Guarantor
written notice,specifying such default, (or within such additional period,
if any, as may be reasonably required to cure such default, if it is of
such nature that it cannot be cured within said thirty (30) day period
because of governmental restriction orother cause beyond the control
of the Tenant ), and if Guarantor fails to remedy the default as
provided in paragraph (b) of Section 30 of this Lease and Agreement; or
(c) Tenant shall file a voluntary petition under the
Bankruptcy Act, as amended; or an involuntary petition under the
Bankruptcy Act, as amended, if filed against 'Tenant and Tenant, after
full hearing is adjudged to be bankrupt, insolvent or unable to pay
its debts, as they rr!at:ure; or Tenant an for the benefit,
of its ci,cdi.tors,; or a reec�-i_ver, after f'ull lac,ar_ii,{;, be appoint( -2d or
rCt(l.inc'C: t(-) tii,i(' }1:11'';1: W T(-,l�l.ilt'�, 1?11;,1i1�'.,, ; (W "MY PX1-'(11)1,1(:1)
or s1 t;t<1_r.ilnu�l�f; ;;hr11.1 i.�:,uc� �t�;;�ir1:,t; I`crl,_1ni: v!ilc�i-'1,'lli,r�n thc! 1�'rl��:i_7i_ty, or,
shall be t�Jkcn or at: tempted to be taken and t:hanic IS not released
prior to judicial sale thereunder;
then Landlord may at; Landlord's election, but. only with the written
consent of the Trustee, then or at any time thereafter, acid while
such event of default; shall continue, give Tenant and Guarantor
written notice of intention to terminate this Lease and Agreement
and the Term herein provided for oil a date specified therein, which
date shall not be earlier than ten (10) days after such notice is
given, and, if all defaults have not then been cured, on the date so
specified Tenant's right to possession of the Facility shall cease
and the Term, and this .Lease and Agreement, shall thereupon be
terminated, and Landlord may re-enter and take possession of the
Facility as of Landlord's former estate; and as an alternative
remedy Landlord may, without terminating the Term of this Lease
and Agreement, re-enter as above provided or take possession pur-
suant to legal proceedings or pursuant to any notice provided for
by law, and shall use reasonable diligence to relet the Facility,
or parts thereof, for such term or terms (but not beyond the Term
provided for in this Lease and Agreement) and at such reasonable
rental or rentals and upon such othei.° terr;:s and conditions as Landlord
may deem advisable, with the right to make alterations and repairs to
the Improvements; and no such re-entry or taking of possession of the
Facility by Landlord shall'be construed as an election on Landlord's
part to terminate this Lease and Agreement unless the termination
thereof be decreed by a court of competent jurisdiction, and no such
repossession by Landlord shall relieve Tenant or Guarantor of their
obligation to pay basic rent and additional_ rent, or of any of their
other obligations under this Lease and Agreement, all of shish shall
survive such repossession, and Teriant shall continue to pay the basic
rent arid all additional rent .provided for in this Lease and Af;reement
irhether or not the Facllity shall leave been relet, leas the net
proceeds, :it' arty, of any reletting of the Facility after deduction
of a 1 of I_,<1ndlord':; exl`)en.,t�s i.ri or :in with such rel.ett;:i_nf;,
i ircl.ud_i.n,c :ithotit: l_.I_mitation all
of
t1110 of ('or'
1
or' take po;,sessiorr of the Facility without, termin:rt rrZ; ti:h:i.. I,ea::,e and
Agreement or. the `Perm herein provided for, Landlord ►nay (but on] -y
with the written consent of the Trustee) J)y notice to Tenant given
at any time thereafter while Tenant is in default in the payment of
basic rent or additional rent or in the performance of any other
obligat-ion under this Lease and. Agreement elect to terminate this
Lease and Agreement and the Term herein provided for, on a date to be
specified in such notice which date shall be not earlier than ten (10)
days after the giving of such notice, and if all defaults shall not
have then been cured, on the date so specified, the Term, and this
Lease and Agreement, shall thereupon be terminated. If in accordance
with any of the foregoing provisions of this Section, Landlord shall
have the right to elect to re-enter and take possession of the Facility,
Landlord may enter and expel Tenant and those claiming through or under
Tenant and remove the property and effects of both or either (forcibly
if necessary) -without being deemed guilty of any manner of trespass
and without prejudice to any remedies for arrears of rent or preceding
breach of covenant.
In the event of default under paragraph (a) above in the payment
of basic or additional rent, Trustee shall notify Tenant and Guarantor
of such default as soon as possible after the date that such rent
was due but not paid, provided, howevZ2r, that the failure of Trustee
to give such notice or the failure of Tenant or Guarantor to receive
it shall not affect the existence of a condition of default hereunder.
SECTION 29. TENANT'S OPTIONS TO PURCHASE THE FACILITY.
(a) DURING TIME FIRST TEN YEARS OF THE TERIT1. At. any time
prior to November 1, 1983, 'Tenant shall have the right and option to
purchase the Facility, but only if':
(i) Landlord shall. default in the performance of its
obl_ic,,)tion under this Lea,:;e and Af recment,; or
(ii) the Vacil:i.ty shall have been 'damatr,ed to the
extent that it ctannot be retisonably re.;tored to the
condition existing irnunediately preccd111g such damage
within a period of seventy--f:i_ve (75) working days, or
to the extent that Tenant is hereby prevented from
carrying on its operations therein for a period of
seventy --five (75) days, or to the extent that the
restoration cost t,rould exceed the total amount of
insurance carried on the Facility in accordance with
the provisions of Section 9; or
(iii) title to, or the temporary use for a period
in excess of thirty (30) days of, the whole or part of
the Facility shall be taken by eminent domain;
(iv) as a result of changes in the Constitution
of the State of Kansas*or of legislative action, or by
the final decree or judgment of any court entered after
`T'enant's contest thereof in good faith, this Lease and
Agreement becomes void or unenforcible or impossible
of performance in accordance with the intent and
purposes of the parties as expressed in this Lease and
Agreement, or unreasonable burdens or excessive lia-
bilities are imposed upon either party to it.
(b) DURING FINAL TEN YEARS OF THE TERM. On and after
November 1, 1983, and during the remainder of the Term, Tenant shall
have the unconditional right and option to purchase the Facility at
any time.
(c) PURCHASE PRICE. The purchase price payable if
Tenant exercises Tenant's Option to purchase the Facility under
the provisions of para.F;raph (a) of this Section shall, be the full
amount necessary under the provisions of the Bond Ordinance to
redeein and retire all out,,tandinlc�; Bonds (:I ncl.uding, 111t)-Iout limita-
tion, pr3.zic:i.pal, interest (both due rind interest tip to the
first call option date) redemption prerniums, if any, expenses of
redemption, and Trustee's fees) upon the happening of any of the
contingencies set forth in paragraph (a) of this Section, but after.
deduction of any amount then in the several accounts described and
provided for in the Bond Ordinance and available for such redemption,
together with the sum of $2,500.00. The purchase price payable
if Tenant exercises Tenant's option to purchase the Facility under
the provisions of paragraph (b) of this Section shall be the full
amount necessary under the provisions of the Bond Ordinance to redeem
(on the first date thereafter on which all outstanding Bonds may be
redeemed after giving the necessary notice) all the outstanding Bonds
including without limitation principal, interest, redemption
premium, if any, expenses of redemption, but after deduction of any
amount then in the several accounts in the hands of the Trustee and
available for application to such redemption, together with the sum of
$2,500.00. In any case if no Bonds shall be outstanding at the time
of purchase, or the redemption or retirement of the Bonds shall be or
have been otherwise provided for, the purchase price of the Facility
shall. be $2,500.00.
(d) EXERCISE OF OPTIONS. Either of the foregoing options
may be exercised by giving written notice to Trustee and the Landlord
of the exercise thereof, specifying the time and place of closing,
which shall neither be earlier than thirty (30) days, nor later than
ninety (90) days, after the notice is given. At such closing Land-
lord shall, upon receipt of the purchase price hereinabove specified,
deliver to Tenant a special warranty deed conveying the Facility to
Tenant free and clear of all liens and encumbrances except those to
which title was subject when.conveyed to Landlord, or resulting from
any failure of Tenant to perforin any of its obligations under this
Lease and Agreement; provided, holeever, that: if such closing shr:.l1
be prior to the redemption of the Bonds such purchase price shall be
27.
p I i d to the 'rru.';t'k:0 with II I`Stru(:t1')II"; to appa.y ;;ai.d proc:ced:; to ";uctl
SECTION 30. TENANT'S PERFORMANCE GUARANTEED. Guarantor
hereby expressly covenants as primary obligor to absolutely and un-
conditionally assure and guarantee the performance of each and every
obligation, duty and covenant of Tenant under this Lease and Agree-
ment, including but not in any way limited to, the payment of basic
rent, additional rent, or other sums of money due hereunder, and
even though such covenants of guaranty are not elsewhere expressed
in this Lease and Agreement. The words "guarantee," "assure," and
like -words or phrases wherever used in this Lease and Agreement are
understood and agreed to mean, include and be construed consistent
with the following:
(a) In the event that Tenant fails or refuses, for
whatever reason, to perform any obligation to pay money hereunder,
whether due to Landlord or Trustee or some other person, then it
shall be the unconditional_ and absolute duty of Guarantor to pay
such sums of money in the same amount and in the same manner as if
paid by Tenant, provided, hoviever, that
(i) Guarantor's duty to pay such sums shall arise
upon receipt of written notice of nonpayirrent by Tenant
from Landlord or `Trustee; and
(ii) Should Guarantor fail to pay such surlis U,ittlin
ten (10) day"', from the date of .rece:i_pt of s.;i.d i-,ritten
notice, then LaI1d1oI'd may pur:�uc! al.l or .any of tE1e
remcdac;; nv�,�i_l��b_Lc t;o it 1.uldcr th-j-:; 11-1d At;�r�rc:rnc:nt;,
red empt:ion ot; the. C'12'.i.:Lc:;t
po)_;;,:Lblc time, 1n which Cvent
such Bond6
and the 13onci 02'diI1a21ce
:;hill continue
to be a licri on the
Facility
until redemption; and
prov_i (led
ful'ther, however, that if
such
Option is exercised under
the
provision:; of subparagraph
(a) (iii)
of this .;uch titic,
.nay
be .;ubjzct to the right:;,
titles and
intere'-is of +ny p�:rty
h :.:i.r.g
i:a ;gin or who is atterr,ptini
to ta'•,e
title to or use of all
or part
of the Facility by eminent
domain.
SECTION 30. TENANT'S PERFORMANCE GUARANTEED. Guarantor
hereby expressly covenants as primary obligor to absolutely and un-
conditionally assure and guarantee the performance of each and every
obligation, duty and covenant of Tenant under this Lease and Agree-
ment, including but not in any way limited to, the payment of basic
rent, additional rent, or other sums of money due hereunder, and
even though such covenants of guaranty are not elsewhere expressed
in this Lease and Agreement. The words "guarantee," "assure," and
like -words or phrases wherever used in this Lease and Agreement are
understood and agreed to mean, include and be construed consistent
with the following:
(a) In the event that Tenant fails or refuses, for
whatever reason, to perform any obligation to pay money hereunder,
whether due to Landlord or Trustee or some other person, then it
shall be the unconditional_ and absolute duty of Guarantor to pay
such sums of money in the same amount and in the same manner as if
paid by Tenant, provided, hoviever, that
(i) Guarantor's duty to pay such sums shall arise
upon receipt of written notice of nonpayirrent by Tenant
from Landlord or `Trustee; and
(ii) Should Guarantor fail to pay such surlis U,ittlin
ten (10) day"', from the date of .rece:i_pt of s.;i.d i-,ritten
notice, then LaI1d1oI'd may pur:�uc! al.l or .any of tE1e
remcdac;; nv�,�i_l��b_Lc t;o it 1.uldcr th-j-:; 11-1d At;�r�rc:rnc:nt;,
alld Lan�31��r�i mray by 'ippr'opriclLc proccc_(1111-"; or otherwit,c
E'nfOl'CC :r1 J1 covCImnti; t0 pay 11102110 a�;;.li.rlJt TCIIiInt Or
GI.I,Iralltor; and
(iii) In the ca: -,e of default under flection 28 of
this Leese and Pgree,fient, �-;frcr;eunder t•rri_tten notices of
default ar to be clrt ir.,ul.t ;ncoue;l_y to 'Tenant and to
Guarantor, nothing in this paragraph (a) of Section 30
shall be construed as altering or extending the time
provided in said Section 28 for cure of default.
(b) In the event that Tenant fails or refuses, for what-
ever reason, to perform any other obligation, covenant, or condition
under this Lease and Agreement, not provided for in paragraph (a)
Of this Section 30, within the period of time allowed under paragraph
(b) of Section 28 of this Lease and Agreement, then it shall be the
unconditional and absolute duty and right of Guarantor to undertake
and perform said obligation, covenant, or condition as fully as if
performed by Tenant, provided, however, that
(i) Guarantor's duty and right to undertake and
perform such obligations, covenants and conditions shall
arise only after receipt of written notice from Landlord
or Trustee, except that in cases where simultaneous written
notice is given to Tenant and Guarantor as provided in
Section 28, then no further written notice to Guarantor
shall be necessary; and
(ii) Should Guarantor fail to perforin such obliga-
tion, covenant or condition ,-ii.thin thirty (30) day; from
the receipt of said written notice, then Landlord may pur-
sue �i i_1 or a I, of the rerrled:i.e:_; availab-c to it under this
Lease and l:�;recment, and L_111d1ord may by app):,Opriate
pr.ocecdi_n ;:, or, oth(2r,:i_c,e erlf'on--e :;"lid c,bl:i.gcil;:i_on:,, covcn-
a1111C; or col"lditioljl, a( �la_Tli;t. '1�f:ncirl�: or mlar,'ntor; "and
•
•
(iii) :In the c isc of default undej, rection 8 of
this Lease aril Agreement, whereunder written notices
are to be sent simultnneously to Tenant and to Guarantor,
this Section 30 shall not be construed as extending the
time provided in said Section' 28 for cure of default;
and
(iv) Where Tenant has failed to perform an obliga-
tion, covenant or condition which is, by its nature,
personal to Tenant and not reasonably capable of perfor-
mance by Guarantor, then Guarantor shall have an un-
conditional and absolute duty to do any and all acts
Which will or may result in performance by Tenant.
Should Tenant still fail to perform within the time
for cure prescribed in this Lease and Agreement, then
Guarantor shall indemnify and hold Landlord harmless
(d) Where Cuarantor under the provision.- of th1.s Section
30 perforrns any obligation, covenant or condition in the place and
stead of Tenant, �:ny ri.ght or c_lairn of Guar'llitor against Ten,ant
ari-sing on .ccount of such perfoi'ra-nce may be enforced by Gia�ar�ntor
throul;h c3E���ropr.,�t� pxocecd_i.r�t.a or .�thertri..:>� , :in accordance tl.i.i;h
the i_�_aw:; nppl.act,h.l a f:her��to, sand
by
reason of any loss resulting to it from said failure
of
Tenant to perform.
(c) In the event that Guarantor is required by the pro-
visions
of this Lease and Agreement to pay surds of money or to
perform
any other obligation, covenant or condition, nothing herein
shall be
construed to mean that Guarantor is thereby substituted
for Tenant
for purposes of any other of the obligations, covenants
and conditions
of this Lease and Agreement. Tenant shall-, in such
case, remain
fully bound, and shall continue to be under a duty to
pay all
sum, and perform all obligations, covenants and conditions
required
by virtue of this Lease and Agreement
(d) Where Cuarantor under the provision.- of th1.s Section
30 perforrns any obligation, covenant or condition in the place and
stead of Tenant, �:ny ri.ght or c_lairn of Guar'llitor against Ten,ant
ari-sing on .ccount of such perfoi'ra-nce may be enforced by Gia�ar�ntor
throul;h c3E���ropr.,�t� pxocecd_i.r�t.a or .�thertri..:>� , :in accordance tl.i.i;h
the i_�_aw:; nppl.act,h.l a f:her��to, sand
• •
governinL, thhc validity of such right or claim or the rncalh;, rind
manlier of cnforci.zhr, right or claim, provided, however-, that
Guarantor shall do noUhi_ng by 1,1c)y of such erhfor•cenient: thi<it; will or
may give rise to a lien or claim to or on the Facility or any part
thereof, and should any such lien or claim arise through or by
virtue of szlch pr o;.cedi_ng:;, tflcn Guar �ntor• shrill indc :nni fy and hold
Landlord hsrrrle:-s L>y 2•0ason of any lo.�s sustained by Landlord
resulting from the attachment or foreclosure of any such lien o.r
claim.
(e) It is the intention of the parties to this Lease and
Agreement that Guarantor shall be absolutely, unconditionally and
fully bound, as primary obligor, to assure and guarantee the full
performance of each and every obligation of Tenant, and to perform
each and every obligation of Tenant itself as though it were
named as Tenant herein, subject only to the procedural conditions
and provisions of this Section 30.
V
SECTION 31. UNIFORM COMMERCIAL CODE. The parties contem-
plate that the Facility shall consist of land, buildings and such
equipment and fixtures as may be necessary to render the Facility
operable. To the extent, however, that any such items may be re-
garded as being ti,aithin the scope arid intent of the Uniform Commercial
Code, the parties agree that t[-iey will execute and file such finan-
cing statements and ta:ce such other action as may be reasonably required
to protect the interest of the holders of the Bonds.
SECTION 32. NOTICES. All notices, demands and requests
which may or are requ-fired to be given by either party to the other or•
to or by ti -ie Trustee shrill be in writing and each shall be d,:emed to
have been properly given ,Then served per-son,.hlly on an executive offic_r
Of the party to whhorn such notice is to be -,i.ven, or when sentpostage
prepaid by rei;i:Aercd or certified mail , ref,urrh receipt req�_le:.;ted,
31.
by deposit thereof in a duly constituted United States post office
or branch thereof located in one of the present states of the United
States of America, in a sealed envelope addressed as follows:
if intended for Tenant: The Hill Company
9th & Grant Streets
P. 0. Box 2129
Amarillo, Texas 79105
or, if intended for Guarantor: Connally Implement Supply Co., Inc.
9th & Grant Streets
P. 0. Box 2129
Amarillo, Texas 79105
or, if intended for Landlord: City of Salina
Salina, Kansas 67401
For attention of City Clerk
or, if intended for Trustee: First National Bank
Salina, Kansas 67401
For attention of Trust Officer
Either party or the Trustee may change the address and name of addressee
to which subsequent notices are to be sent to it by notice to the others
given as aforesaid, but any such notice of change, if sent by mail,
shall not be effective until the fifth (5th) day after it is mailed.
SECTION 33. ADDITIONAL COVENANTS BY TENANT AND GUARANTOR.
Tenant and Guarantor are and each will remain at all times during
the term hereof corporations duly organized and validly existing
under the laws of their respective states of incorporation, and duly
qualified and empowered to do business in the State of Kansas and
to engage in the transactions contemplated hereby, with full lawful
power and authority to enter into and perform this Lease, acting by
and through their duly authorized officers. The execution of this Lease
and the performance of its terms by Tenant and Guarantor will not result
in a breach of or a default under their respective charters or bylaws,
or, any other indenture, agreement or :instrument to whish they or
either of them are parties or by which they or either of them may
be bound or affected.
32.
a,C'.LIO;v '3111. A11131_iRnGL. Tenant covenants and at;meas th;,rt
it Will not. cause or, pormit to be made, whether by Trustee or otherwise,
any use of the proceeds of the Bonds which., if such use had been
reasonably expected on the date of issuance of said Bonds, would have
caused said Bonds to be arbitrage bonds within the meaning of Section
103(d) of the Internal Revenue Code of 1.9511, as amended. Tenant
further covenants and agrees that it will comply with all. applicable
requirements of said Section 103(d) and the rules and regulations of
the United States Treasury Department thereunder for so long as any
of said Bonds remain outstanding and unpaid.
SECTION 35. INVESTMENT TAX CREDIT; DEPRECIATION. The parties
have entered into this Lease in contemplation that Tenant shall be
entitled to claim the full benefit of (1) any investment credit against
federal or state income tax allowable with respect to expendtures of
the character contemplated hereby under any federal or state income
tax laws now or from time to time hereafter in effect, and (2) any
deduction,for depreciation of the improvements to be constructed or
purchased hereunder from federal or state income taxes. Landlord agrees
that, it will upon Tenant's request execute all_ such elections, returns
or other documents which may be .reasonably necessary or required to
more fully assure the availability of such benefits to Tenant.
SECTION 36. RECORDING. A brief synopsis of this Lease
and Agreement and every assignment and modification hereof shall
be recorded in the Office of the Register of Deeds of Saline County,
Kansas.
SECTION 37. CAPTIONS. The captions or headings of the
sections and paragraphs of this Lease and Agreement are for con-
venience only and
in no
ti,;ay define, Limit
or describe the scope or
intent of any provision
of this Lease and
AF_;reement .
SE'CTIOJvr
38.
TRUSTEE. The Trust(�e
and P(i.ying Agent referred
to here-1-1-1shr:�1.7, be the `-*0`st Nation zll Batik- and TY'ust: Coml-)rIny,
1JC;('1�,�,
�n���� [(:?1' r��il'. �)rU`✓-I � i (�;I;, �")� �,�11,, � �1:>r ;Itl�l �: ;1'�'�'1�1� ili, ,;}l;l �..� ���I Cl�.i '11111
i_nurc t o the bcnef.i.t•' tlrc liar°ties he i eto and t're r re:�pect:ive
succosors and as.si.t;ns, provi_dcd, ho�vcver, that; no one shall lrave
any benefit or acqu_Ire any i,io;hts urldcr. this Lease aril A ;rcernent; pur-
suant to any conveyance, transfer or assignment in violation of any
of its provisions.
IN WITNESS ',;'i}?PEO:', Landlord, beim hereunto authorized
by valid and subsist_i.n`; ordinances duly adopted, has caused this
Lease and Agreement to be executed and delivered in its name and
behalf by and through its Mayor and City Clerk; and Tenant, pursuant
to valid and subsisting resolutions of its Board of Directors, has
caused this Lease and Agreement to be executed and delivered in its
name and behalf by Its officers thereunto duly authorized; and
Guarantor, pursuant to valid and subsisting resolutions of its Board
of Directors, has caused this Lease and Agreement to be executed
and delivered in its name and behalf by its officers thereunto duly
authorized, all the day and year first above written.
ATTEST:
CITY CLERK
ATTEST:
SE'URETAHY
A`}'!'I?; )T :
CITY OF SALINA, KANS (LANDLORD)
B��
y
MAYO
THE HILL COMPANY (TENANT)
By
P S1 DENT
CONIIf�.1:IlY 7,PLL;Ii};N`.P SUI'}'LY CO. , Ct1dC.
(GI]1,.. {hiITOiz)
•
AC KNOt-1I.ED'; ,i1 N'T'S
•
1
IN 1-IITNESS !`THEREOF,
and affixed my official seal,
�. .20E
...I:y PL'DLII
un,y, Kansas
My Commi5s,on Expires
Nov. 12, 1974
I have hereunto subscribed my name
the day and year last above written.
My Commission Expires: `nom-- 1-�, 15'14
STATE OF _ A 5 I )
ss.
COUNTY OF P L,.- )
L) - - &C -A— -
Notary Public
T �, r
BE IT REMEi,BERED that on this ?� day of
1973, before me, a notary public in nd for said county and state,
c am e
tiH i t- r S �, l _,1+� i -}C. 6 ,z�i s l_�. , 6 '-n., of The Hill_ Company,
a Texas corporation, to me personall,? known to be the same person who
executed. the foregoing instrument, and duly acknowledged the execution
of the same for and on behalf and as the act and deed of said corporation.
IN WITNESS 1%THERE0F, I have hereunto subscribed my name and
affixed my official seal on the day and year last above written.
JAN CE ROE
STATE NOTARY PUBLIC
=** _ Saline County, Kansas
Uly Commission Expires
Nov. 12, 1974 I1ot ry Public
I'•Zy Commis.:ion Expires: �� l�, 19174
OF I LI, __ ,
1' I'
7
All
(.,
i , nl;' 11 Iltai„it r 1C 111 f nd I'i,t -lkt Co1111f,`r I I
STATE OF KANSAS
)
) ss.
SALINE COUNTY
)
BE IT
1973, before me,
RI i':IIIRI ICED that on
a notary public
this day of -, ,_
in and 1'or said county and state,
carne r���
,.- r , r ��� Z ,
I•?ayor. of the City of Salina, Kansas,
_ .z
to me personally knor,n to be the
salve person who executed the foregoing
instrument, and
duly ackno�,,1.edged
the execution of the same -for and
on behalf and as
the act and deed
of said City.
1
IN 1-IITNESS !`THEREOF,
and affixed my official seal,
�. .20E
...I:y PL'DLII
un,y, Kansas
My Commi5s,on Expires
Nov. 12, 1974
I have hereunto subscribed my name
the day and year last above written.
My Commission Expires: `nom-- 1-�, 15'14
STATE OF _ A 5 I )
ss.
COUNTY OF P L,.- )
L) - - &C -A— -
Notary Public
T �, r
BE IT REMEi,BERED that on this ?� day of
1973, before me, a notary public in nd for said county and state,
c am e
tiH i t- r S �, l _,1+� i -}C. 6 ,z�i s l_�. , 6 '-n., of The Hill_ Company,
a Texas corporation, to me personall,? known to be the same person who
executed. the foregoing instrument, and duly acknowledged the execution
of the same for and on behalf and as the act and deed of said corporation.
IN WITNESS 1%THERE0F, I have hereunto subscribed my name and
affixed my official seal on the day and year last above written.
JAN CE ROE
STATE NOTARY PUBLIC
=** _ Saline County, Kansas
Uly Commission Expires
Nov. 12, 1974 I1ot ry Public
I'•Zy Commis.:ion Expires: �� l�, 19174
OF I LI, __ ,
1' I'
7
All
(.,
i , nl;' 11 Iltai„it r 1C 111 f nd I'i,t -lkt Co1111f,`r I I
�! /% �.
came _cL1=_L _— kl Z -L L J _--' — %C � ' __ of Connally
Impl.cm�nt St-ippIy Co. , 1_nC . ; a `i.'cx,is corpot',Otion, to mcg personally
known to be the same per:�:;on rrho �>>�,cuted .i;tie Torei;o_in� in:�t;rume and
duly acknowledf; d the ex<>cution o1' the same for .and on behalf and as
the act and deed of said corporation.
1N l'd-l'1'NL,SS WH1FZiIOT', I have hereunto subscribed my name
and affixed my official seal on the day and year last above written.
JAN--.
"`�. STATE h;
. ssti. Saline
My co otary Public
My Commission Expires:
I
Misc. )k L.�p_.,G,.. Pa e
t
N 0T I C E ;
Public notice is hereby given that the City of Salina,
Kansas, a municipal corporation, has leased to The Bill Company, a
Texas corporation duly qualified to do business in the State of
Kansas, the following described property located in Saline County,
Kansas, to -wit:
A tract of land lying in the Southwest Quarter .
(SIV/4) of Section Fourteen (14), Township
Fourteen (14) South, Range Three (3) Nest of
the Sixth Principal Meridian in Saline County,
Kansas, described as follows: from the south-
-west corner of said Southwest Quarter (SIV/4),
thence east on an assumed bearing of North 9000'
East along the south line of said Southwest
Quarter (SIV/4) a distance of 1771 feet to a
point on the.east right-of-way line and parallel
with the east line of U.S. 81 Highway Bypass
extended, thence North 0°58145" East along
said east right-of-way line and parallel with
the east line of said Southwest Quarter (SIV/4)
a distance of 1309.5 feet to the Point of
Beginning, thence North 9000' east parallel
with south line of said Southwest Quarter
(SIV/4) a distance of 875.30 feet to a point
on east line of said Southwest Quarter, said -
east line also being the west right-of-way
line of the Missouri Pacific Railroad, thence
South 0058145" (Vest along the east line of
said Southwest Quarter (SIV/4) a distance of
300 feet, thence South 9000' Nest parallel
with the south line of said Southwest Quarter
(SIV/4) a dist-ante of 875.30 feet to a point
on the east right-of-way line of U.S. 81
Highway Bypass, thence North 0°58145" East
along said east right-of-way line a distance
of 300 feet to the point of beginning, being
the same land described in Saline County,
Kansas Recorder deed book 172 page 242, an
indenture between the Salina Building Company,
Inca and John Deere Plow Company of Kansas City.
Said lease is dated as of November 1, 1973, expires
November 1, 1985, provides for an early term-ination-in the event
of the happening of certain contingencies, provides an option to
purchase the leased facility for prices and on terms set forth in
said Lease, and contains various other covenants, terms and
conditions. The obligation of The Hill Company, as Tenant, under
said Lease, is absolutely and unconditionally guaranteed-by-Co'nnally'>
Impl-emcnt Supply Co., Inc., a Texas corporation duly qualified to
do business in the State of Kansas. A copy of said lease is and
Misc. Book _l6l�__ Page.
..
a
Misc. Book _,ld4 Page
'gill remain permanently on file in the office of the City Clerk of
Salina, Kansas. The Lessor's interest in said lease has been
assigned by the City of Salina, Kansas, to First National Brink and
Trust Company, Salina, Kansas, Trustee, as additional security for
the purposes set out in said assignment in connection with the
issuance by the City of Salina, Kansas, of $.265,000.00 Industrial
Development Revenue Bonds, Series 11-1-73, of'said City; such bonds
being payable solely and only from the money and revenue.received
from the fees charged and rentals received for the use of the
leased facility, and all of the above described property and the
net rentals therefrom have been pledged to the payment of said
Industrial Development Revenue Bonds.
Executed by authority of the governing body of the City
of Salina, Kansas, this / 2— day of" �1,v1✓ , 1973.
THE CITY OF SALINA, KANSAS
B
�{liI2F�,y
Mayor
Jack Weisgerber
ATTffT :
f �
r;s
City Clerk
D. L. Harrison
1
ACKNOWLEDGMENT
STATE OF KANSAS. )
ss:
COUNTY OF SALINE )
STATE OF KANSAS
COUNTY OF SALINE ss
FILED FOR RECORD IN MY OFFICE
ON NOV 2 01973 AT
q,5;/Q-0TL CK1�11. ANDULY RECORDE,O��-�3
((�A 0 _a Pr;GE��''SS?2 9
� REG. OF DEEDS
BE IT REMEMBERED that on this _�,; day of
1973, before me, a notary public in and for the county and state
aforesaid, came I. _, i.. , Mayor of the
City of Salina, Kansas,' a municipal corporation, to me personally
known to be the same person who executed the foregoing instrument
and duly acknowledged the execution of the same, for and on behalf
and as the act and deed of said municipal corporation,
IN WITNESS WHEREOF, I have hereunto subscribed my name
and affixed my official seal the day and year last above written.
JANICE ROE
STATC NOTARY PUCLIC
—✓ii 11 �J
Saline County, Kan,.,;
"f my COITIMIS51C11 Cxp_ ire _ Notary Public
Nov. 12, 1971
Janice Roe
My Conimi.ssion Expires:
2. /
Misc. DOOR ! a �.. P(19C .,