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HomeMy WebLinkAbout11392RESOLUTION NO. 11392 A RESOLUTION APPROVING AN AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION, AND VESTAS TOWERS AMERICA, INC. RELATING TO A JOB CREATING CAPITAL IMPROVEMENT PROJECT, AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME, AND TRANSFERRING $11,813,400 FROM THE 1992 -2011 SALES AND USE TAX CAPITAL IMPROVEMENT PROJECTS FUND FOR SUCH PURPOSE BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 The City Council finds and determines that the expenditure of $11,813,400 for the job creating capital improvement project with Vestas Towers America, Inc. described in the attached Agreement, meets and complies with the criteria and standards established by Ordinance No. 6381 and will create employment opportunities justifying the expenditure of public funds. SECTION 2 The Agreement dated as of August 25, 2008 between the City of Pueblo and Vestas Towers America, Inc., a copy of which is attached hereto, having been approved as to form by the City Attorney, and upon the recommendation of the Pueblo Economic Development Corporation, is hereby approved. The President of the City Council is authorized to execute and deliver the Agreement in the name of the City. SECTION 3 Funds in an amount of $11,813,400 are hereby authorized to be transferred, expended and made available to Vestas Towers America, Inc. out of the 1992 -2011 Sales and Use Tax Capital Improvement Projects Fund for the sole purpose of the job creating capital improvement project and in the manner described in the attached Agreement. The funds hereby authorized to be transferred and expended shall be released and paid by the Director of Finance to or for the benefit of Vestas Towers America, Inc. after receipt (i) by the City Clerk of the documents required to be filed pursuant to paragraph 2(b) of the Vestas Towers America, Inc. Agreement, and (ii) by the Director of Finance of written requests for payment required by paragraph 2(c) of the Vestas Towers America, Inc. Agreement. SECTION 4 The officers of the City are directed and authorized to perform any and all acts consistent with the intent of this Resolution and attached Agreement to effectuate the transaction described therein. SECTION 5 This Resolution shall become effective upon final approval and passage. BY Judy Weaver Councilperson I i IC I T' i hind, ATTESTED ay: INTRODUCED Auqust 25, 2008 kits (� Paz, D �I ED 0 �J o ° Background Paper for Proposed RESOLUTION AGENDA ITEM # A DATE: August 25, 2008 DEPARTMENT: Law Department TITLE A RESOLUTION APPROVING AN AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION, AND VESTAS TOWERS AMERICA, INC. RELATING TO A JOB CREATING CAPITAL IMPROVEMENT PROJECT, AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME, AND TRANSFERRING $11,813,400 FROM THE 1992 -2011 SALES AND USE TAX CAPITAL IMPROVEMENT PROJECTS FUND FOR SUCH PURPOSE ISSUE Should City Council approve the job creating capital improvement project agreement with Vestas Towers America, Inc.? RECOMMENDATION Pueblo Economic Development Corporation recommends approval. BACKGROUND Vestas Towers America, Inc. ( "Vestas ") has committed to locate its wind tower manufacturing facility and business ( "Tower Operation ") in the City of Pueblo and to employ 450 full -time employees at its Tower Operation. City will make available $11,813,400 to or for the benefit of Vestas for the following purposes: construction of facilities — $11,453,000, and employee training — $360,000 at no more than $800 per full -time employee. If Vestas fails to meet its employment commitment during the 7 -year period starting June 1, 2012, Vestas will on a quarterly basis repay City an amount equal to $937.57 for each full -time employee less than 450 it employs at the Tower Operation. Vestas' commitment and City funding are subject to the following conditions: annexing Vestas' land south of the Minnequa Industrial Park to the City of Pueblo; adoption of an Urban Renewal Plan for the area including tax incremental financing provisions; and Pueblo County and State of Colorado commitments. FINANCIAL IMPACT See Background. AGREEMENT THIS AGREEMENT entered into as of August 25, 2008 between Pueblo, a municipal corporation (the "City ") and Vestas Towers America, Inc., a Delaware corporation authorized to do business in the State of Colorado (the "Company "). WHEREAS, subject to the satisfaction of certain conditions, the Company has expressed a willingness to locate a wind turbine tower manufacturing facility and business (the "Tower Operation ") within the City of Pueblo, Colorado, and in furtherance thereof, the Pueblo Economic Development Corporation ( "PEDCO ") has made application for funds with the City, and WHEREAS, PEDCO has recommended to the City Council that City approve such application, and WHEREAS, the City Council based on PEDCO's recommendations has approved such application and, as described herein, will make funds available to the Company subject to and upon the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City and Company agree as follows: 1. The following terms as used in this Agreement shall have the following meaning unless the context clearly indicates otherwise: "Employment Commitment Date" means June 1, 2012. "Facility" means the buildings and storage area within the jurisdictional boundaries of the City of Pueblo, Colorado where Company will conduct its Tower Operation generally located south of the Minnequa Industrial Park. "Full -Time Employee" means a person who actually performs work at the Facility for not less than thirty -two (32) hours per week, whether employed by Company or by an outside entity acting as an agency to provide Full -Time Employees for Company. The term "Full -Time Employee" shall include independent contractors with a domicile in Pueblo, Colorado, but only to the extent such independent contractors do not exceed ten percent (10 %) of the total number of Full Time Employees, and shall also include officers of the Company residing in Pueblo, but shall not include any independent contractors in excess of ten percent (10 %) of the total number of Full Time Employees, nor officers not residing in Pueblo nor any shareholders of Company. "Quarter" means three consecutive calendar months commencing January 1, April 1, July 1 and October 1 of each calendar year. -1- ,5/� / & "Quarterly Employees" means the sum of the aggregate number of Full -Time Employees on each business day of a Quarter, divided by the number of business days in such Quarter. 2. So long as Company is not in default hereunder, City will, on or before the Employment Commitment Date, advance to or for the benefit of Company funds in the amount of $11,813,400.00 (the "City Funds "), subject to and contingent upon the following conditions and covenants which Company agrees to perform and comply with: (a) City Funds shall be used solely for the following purposes: (i) $11,453,400 will be funded to Company for construction of the Facility which shall be located within the jurisdictional boundaries of the City of Pueblo, Colorado; (ii) $360,000.00 will be funded to the Company for employee training through Pueblo Community College in the amount of $800.00 per Full-Time Employee. (b) Company shall file in the office of the City Clerk the following: (i) copies of Company's certificate or other evidence of authority to transact business in the State of Colorado issued by the Colorado Secretary of State, (ii) certified copy of the resolution of the governing board of Company approving this Agreement and authorizing its officers to execute and deliver this Agreement in the name of Company, (iii) evidence satisfactory to City that Company has entered into enforceable construction contracts for the construction of the Facility adequate for Company's Tower Operation, and (iv) evidence satisfactory to City that Company has adequate financial ability to perform its obligations under this Agreement. The date of the last to occur of the filings required under (i), (ii), (iii) and (iv) of this Paragraph 2(b) shall be referred to herein as "Closing." If Closing does not occur on or before July 1, 2009, or such later date as Company and City shall mutually agree, City, at its sole option, may terminate this Agreement and City and Company shall thereafter be released and discharged from all obligations hereunder. (c) As conditions precedent to disbursement or payment of City Funds, Company shall file with the City Clerk the documents required by (b) above, and (i) with respect to the portion of the City Funds described in subsections 2(a)(i), Company shall file with City's Director of Finance written request for payment certified to be true and correct by an officer of Company that the amounts included in the request for payment have not been included in any prior request for payment and are for the actual cost of construction of the Facility, identifying the work and materials for which payment is sought, including certificates of the architect and/or contractor that the work and materials for which payment is sought has been completed and installed, and (ii) with respect to the portion of the City Funds described in subsection 2(a)(ii) above, Company shall file with City's Director of Finance written request for payment certified to be true and correct by an officer of Company that the amounts included in the request for payment have not been included in any prior request for payment and are for employee training specifying the number of Full -Time Employees who have received training. All City Funds, if any, received by Company shall be deposited in a separate account and held in trust by Company IPA for the sole and only purpose of paying for the items described in Paragraph 2(a)(i) or (ii), as applicable. (d) Company in awarding contracts for the construction of the Project shall allow local contractors a reasonable opportunity to participate in the competitive bidding, or other selection procedure used by Company. A similar provision with respect to qualified local subcontractors and material suppliers shall be included as part of the construction contracts for the Project. For purposes hereof, the term "local" means having its principal place of business in the City or County of Pueblo, Colorado, and the term "qualified" means having all required licenses, experience and bonding capacity to perform the work or supply the material. 3. Company acknowledges and agrees that the primary purpose of City in entering into this Agreement and the sole benefit to the City for making City Funds available to Company hereunder is the creation of jobs. Therefore, Company represents, covenants, and agrees that, other than during the duration of a delay caused by a Force Majeure Event (as hereinafter defined) which prohibits or materially interferes with the contemplated Tower Operation; provided, that over the life of this Agreement, all such delays, when taken together in the aggregate, cannot exceed 12 months, it will continuously conduct its business operations and employ Full -Time Employees at the Facility as follows: (i) during the period from date of this Agreement to the Employment Commitment Date, Company shall diligently use commercially reasonable efforts in good faith to employ as many Full -Time Employees as are reasonably required by its Tower Operation, and (ii) on and after the Employment Commitment Date, Company shall employ not less than four hundred fifty (450) Full -Time Employees at the Facility until the end of the Repayment Period (the "Employment Commitment ") or it shall comply with the Repayment Obligation set forth below. 4. Notwithstanding anything contained - in this Agreement to the contrary, if Company shall for any reason default in its Employment Commitment set forth in Paragraph 3(ii) above, Company shall repay to City a pro -rata share of the City Funds advanced by City under Paragraph 2 hereof based upon the number of Full -Time Employees employed by Company at the Facility (the "Repayment Obligation "), as follows: (a) During the seven (7) year period starting on the Employment Commitment Date and ending eighty -four (84) months thereafter (the "Repayment Period "), Company shall pay to City an amount each Quarter equal to the Quarterly Employees less than four hundred fifty (450) Full -Time Employees employed at the Facility by Company multiplied by $937.57 (the "Company's Quarterly Payments "). For example, if for the second Quarter of the third year after the Employment Commitment Date such Quarterly Employees is 400, the amount payable by Company to City on or before the fifteenth (15th) day of the next calendar month would be (450 - 400) x $937.57 = $46,878.57. (b) Company's Quarterly Payments, if any, shall be paid to the City without notice, demand, deduction or setoff on or before the forty -fifth (45th) day after the end of each Quarter during the Repayment Period and for one month thereafter at the office of the Director of 3- Finance of City, 1 City Hall Place, Pueblo, Colorado, 81003, or such other person or location as the City may designate. All past due Company's Quarterly Payments shall bear interest at the rate of eight (8) percent per annum ( "Default Rate ") until paid. (c) Within forty -five (45) days after the end of each Quarter after the Employment Commitment Date until the last Quarter of the Repayment Period, Company will submit to City's Director of Finance Company's statements showing the Quarterly Employees for the preceding Quarter and the basis upon which Quarterly Employees and Company's Quarterly Payment, if any, were computed certified by an officer of the Company to be true and correct. For purposes of verifying such employment, City shall have access, upon reasonable prior written notice to the Company and during regular working hours, to Company's records relating to Company's employees employed at the Facility to the extent necessary to verify such employment. Except with respect to the number of Quarterly Employees or in the event of any action filed by City to enforce this Agreement, City shall treat such information as confidential and shall not disclose (except pursuant to a subpoena or court order) such information to any party other than those City employees who have a need to know such information. (d) Notwithstanding anything herein to the contrary, if Company defaults for any reason in the payment of its Repayment Obligation, and such default is not cured within sixty (60) days after written notice specifying the default is given by City to Company, then in such event, City may declare the entire balance of the Company's Repayment Obligation due and owing together with interest thereon from the date of default at the Default Rate, and for such purpose, the entire balance of Company's Repayment Obligation shall be an amount equal to 450 times $937.57 multiplied by the remaining Quarters of the Repayment Period plus the amount of Company's previously past due and unpaid Quarterly Payments, if any. Company's Repayment Obligation is absolute and unconditional and shall not be abated, reduced, diminished, modified, withheld or otherwise offset for any cause or reason whatsoever. (e) Except as otherwise provided in Paragraphs 7 and 13 hereof, City's damages for breach of Company's Employment Commitment set forth in Paragraph 3(ii) above or Repayment Obligation and the Company's total Repayment Obligation shall not exceed $11,813,400.00 (plus interest in the event of a late payment as described in Paragraph 4(b) or in the event of acceleration as provided in Paragraph 4(d)), provided, however, that such maximum $11,813,400.00 amount shall be reduced by $421,907.14 for each Quarter Company meets its Repayment Obligation during the Repayment Period by either (i) employing four hundred fifty (450) Quarterly Employees at the Facility, or (ii) paying Company's Quarterly Payments as provided in Paragraph 4(a) above for such Quarter. The maximum $11,813,400.00 as such amount may be reduced on a Quarter by Quarter basis as set forth in this Paragraph 4(e), plus interest, if any, shall be referred to herein as the "Outstanding City Funds Obligation ". (f) If the amount of City funds advanced by City to or for the benefit of Company on or before the Employment Commitment Date pursuant to Paragraph 2 above is less than $11,813,400.00, Company's Repayment Obligation, Company's Quarterly Payments, and the $937.52 per Quarter Employee will be proportionately reduced. -4- /(MA_ 5. The Outstanding City Funds Obligation shall be deemed to be a debt of Company payable to City pursuant to the terms and conditions of this Agreement. 6. (a) Prior to instituting any proceeding to enforce Company's Repayment Obligation under Paragraph 4, City shall notify Company in writing of its intention to institute such proceedings. Company may request relief from its Repayment Obligation by delivering to City within thirty (30) days after date of City's notice, Company's written request for relief specifying the grounds upon which such relief is sought together with documents supporting said grounds. Within ninety (90) days after receipt of Company's request, City will schedule a meeting with the City Council at which Company may appear. City will notify Company of the time and place of the meeting at least ten (10) days before the meeting. Failure of Company to timely deliver its complete written request for relief or to appear at the scheduled meeting with the City Council shall entitle City to immediately institute proceedings to enforce Company's Repayment Obligation. (b) City Council may or may not, in its sole and absolute discretion, relieve Company, in whole or in part, from Company's Repayment Obligation. Any action taken by the City Council relating to a request for relief shall be final and binding on Company, and not subject to judicial review. Any such action by City Council is, and shall constitute, a legislative measure. Nothing contained in this Paragraph 6 shall grant or be construed to grant to Company any right or claim to relief from its Repayment Obligation or hearing with respect thereto. (c) No delay by the City in scheduling a meeting, or failure by City to exercise its right to enforce this Agreement, including Company's Repayment Obligation, and no partial or single exercise of that right, shall constitute a waiver of that right. 7. In the event of any litigation arising under this Agreement, the court shall award to, and the prevailing party shall recover its costs together with all internal and out -of- pocket expenses of any kind relating to the litigation including, but not limited to, reasonable attorney fees. Venue for any such litigation shall be in the United States District Court for the District of Colorado. All such litigation shall be filed in such Federal District Court and each party submits to the jurisdiction of such Federal District Court. To the extent allowed by law, each party waives its right to a jury trial. & This Agreement expresses the entire understanding of the parties and supersedes and abrogates any and all prior dealings and commitments, whether oral or written, with respect to the subject matter of this Agreement and may not be amended or modified except in writing signed by City and Company. Any waiver of any provision of this Agreement must be in writing and signed by the party whose rights are being waived. No waiver of any breach of any provision hereof shall be or be deemed to be a waiver of any preceding or subsequent breach of the same or any other provision of this Agreement. The failure of either party to enforce or seek enforcement of the terms of this Agreement following any breach shall not be construed as a waiver of such breach. -5- 9. This Agreement shall be construed in accordance with and be governed by the laws of the State of Colorado without regard to conflict of law principles. 10. Any notices hereunder shall be sufficiently given if given in writing personally or mailed by first class, registered, or certified mail, postage prepaid, addressed: (a) if to City, City Manager, City of Pueblo, 1 City Hall Place, Pueblo, Colorado, 81003, with copy to Thomas E. Jagger, City Attorney, 503 N. Main Street, Suite 127, Pueblo, Colorado, 81003, or (b) if to the Company, Eric Iversen, Vice President, Engdraget 20, 6800 Varde, Denmark, with copy to Mark A. Senn, Senn Visciano Kirschenbaum, P.C., 1801 California Street, Suite 4300, Denver, Colorado 80202, or to such other person or address within the State of Colorado as either party shall specify in written notice given to the other party pursuant to the provisions of this Paragraph 10. Notice shall be effective (i) upon receipt, if delivered personally, or (ii) three (3) business days after deposit in the mails, if mailed. 11. Time is of the essence hereof. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, provided Company may not assign this Agreement or any interest herein except to an affiliate without the express written consent of the City which shall not be unreasonably withheld, conditioned or delayed. Any assignment or attempted assignment of this Agreement by Company without such consent shall be null and void. No assignment of this Agreement or any interest herein by Company shall release or discharge Company from any of its obligations under this Agreement unless otherwise agreed by City at the time consent to assignment is given. 12. The persons signing this Agreement in the name of and on behalf of Company represent and warrant that they and Company have the requisite power and authority to enter into, execute, and deliver this Agreement, and that this Agreement is a valid and legally binding obligation of Company enforceable against Company in accordance with its terms. The persons signing this Agreement in the name of and on behalf of City represent and warrant that they and the City have the requisite power and authority to enter into, execute, and deliver this Agreement, and that this Agreement is a valid and legally binding obligation of the City enforceable against the City in accordance with its terms. 13. Company represents and warrants that, except as contemplated by City and Company with respect to the persons to be hired in connection with the Tower Operation, no person, entity, or organization has been employed or retained or will receive or be paid, directly or indirectly, any commission, percentage, contingent fee or any other remuneration payment or receipt of which is contingent upon approval of this Agreement by City or City's advancement of City Funds to Company hereunder. For breach or violation of this warranty, City shall have the I right to terminate this Agreement, or recover from Company the full amount of such commission, percentage, contingent fee or other remuneration, or to seek such other remedies legally available to City, which remedies shall be cumulative. 14. In no event shall either party hereto or their respective officers, agents or employees be liable to the other party hereto for punitive, indirect, special or consequential damages, resulting from or arising out of or related to this Agreement or the performance or breach thereof by such party or the failure or delay of such party in the performance of any covenant or provision under this Agreement on its part to be performed. In consideration of each party entering into this Agreement, the other party hereby waives and discharges such party and its officers, agents and employees from all claims for any and all such damages. No breach, default, delay or failure of City under this Agreement shall be or be construed to be a waiver, discharge or release of Company's Repayment Obligation under Paragraph 4 hereof with respect to the Outstanding City Funds Obligation. Notwithstanding the foregoing, Company and/or City may institute an action in specific performance to enforce the performance of the other party's obligations under this Agreement. 15. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the other provisions of this Agreement which shall remain in full force and effect. 16. Neither party shall be, or hold itself out as, agent of the other or as joint ventures under this Agreement. 17. Each party acknowledges that this Agreement was fully negotiated by the parties and, therefore, no provision of this Agreement shall be interpreted against any party because such party or its legal representative drafted such provision. 18. The provisions of this Agreement are for the exclusive benefit of the parties hereto, and no third party shall be a beneficiary, or have any rights by virtue of, this Agreement. 19. This Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed for all purposes to be an original, and all such counterparts shall together constitute but one and the same original. 20. (a) "Force Majeure Event" shall mean any cause beyond the reasonable control of, and not due to the fault or negligence of the Company or which by the exercise of due diligence by Company, it is unable to overcome, including, as applicable, acts of the non - affected party, drought, flood, landslide, earthquake, hurricane, tornado, storm or other unusually adverse weather condition, fire, lightning, epidemic, war, blockade, riot, civil disturbance, famine, accident, sabotage, explosions, theft, casualty, embargo, injunction, shortages of rolling stock, third party strikes, lockouts or other third party labor difficulties, restrictions or restraints imposed by a change in the law by the federal, state or local government or regulatory authority that would prohibit or materially interfere with the contemplated Tower Operation upon all or 7- any material portion of the Facility, a release of a hazardous material by a party other than Company which prohibits or materially interferes with the contemplated Tower Operation, unforeseen subsurface conditions, orders or judgments of any governmental entity, the absence, suspension, termination, interruption, delay in issuance, denial, or failure of renewal of any permit, or any changes in law which prohibits or materially interferes with the contemplated Tower Operation. Force Majeure includes an act or failure of a third party to furnish materials or equipment to Company, if such failure arises as a result of a Force Majeure Event which prohibits or materially interferes with the contemplated Tower Operation. (b) If Company is affected by any event described in Paragraph 20(a) which prohibits or materially interferes with the contemplated Tower Operation, Company shall promptly upon learning of such event, give written notice to City stating the nature of the event, its anticipated duration, how and in what manner the event prohibits or materially interferes with the contemplated Tower Operation, and any action taken by Company to amend or minimize its effect. (c) Upon the occurrence of a Force Majeure Event, the Employment Commitment Date, the Repayment Period, or both may be extended by the duration of delay caused by the Force Majeure Event. Over the life of this Agreement, all of the extensions, when taken together in the aggregate, cannot exceed 12 months. The period of time attributable to each such extension shall be tacked to the end of the Repayment Period and each party's performance, and each milestone or deadline, contemplated hereunder shall be adjusted accordingly. Without limiting the generality of the foregoing and by way of example only, if, as a result of a Force Majeure Event, Company has extended the Repayment Period by 2 months, the commencement date of each remaining Quarter will be delayed by 2 months. Consequently, each remaining "Quarter" may not follow calendar quarters (i.e., January to March, April to May, June to September, etc.). As another example, if, during construction of the wind turbine tower manufacturing facility, Company experiences a Force Majeure Event, it may delay the Employment Commitment Date in accordance herewith. As used herein throughout, the terms "Repayment Period" and "Quarter" shall include any extensions made thereto. Executed at Pueblo, Colorado, the day and year first above written. Pueblo, a Municipal Corporation [SE -ALj Attest: B�� City- .r . President of the City Council _ VESTAS TOWERS AMERICA, INC. a Delaware Corporation By Knud Bjarne H sen, resident 8 L 0 STATE OF COLORADO ) ss. COUNTY OF PUEBLO ) The foregoing instrument was acknowledged before me this � day of August, 2008 by Barbara A. Vidmar as President of the City Council and Gina Dutcher as City Clerk of Pueblo, a municipal corporation. Witness my hand and official seal. My commission expires I4)PWFLE fAVO -NEFF NOTARY PUBLIC STATE OF COLORADO A E OF Col. • 0 ) COUNTY OF Pvtyb The foregoing instrument was acknowledged before me this 2/ L day of August, 2008 by Knud Bjarne Hansen as President of Vestas Towers America, Inc, a Delaware corporation. Witness my hand and official seal. My commission expires: 'K l6 zat . V 1797882 TD 03/05/2009 08:48:14 AM Page: 1 of 5 R 26.00 D 0.00 T 26.00 Gilbert Ortiz Clerk /Recorder, Pueblo County Cc DEED OF TRUST THIS INDENTURE, is made as of the 27` day of February, 2009, between Vestas Towers America, Inc., a Delaware Corporation, whose address is 11140 Eastman Park Drive, Windsor, Colorado, 80550, hereinafter referred to as "Grantor," and the Public Trustee of the County of Pueblo, State of Colorado, hereinafter referred to as Public Trustee, WITNESSETH, THAT, WHEREAS, Grantor executed that certain Agreement dated as of August 25, 2008 ( "Agreement "), whereby Grantor agreed to satisfy by repayment to Pueblo, a municipal corporation, the beneficiary herein, whose address is 1 City Hall Place, Pueblo, Colorado, 81003 ( "Beneficiary"), any Repayment Obligation (as defined in the Agreement) due after the date thereof in accordance with the terms of the Agreement in a maximum aggregate amount not to exceed $11,813,400.00 (the "Indebtedness ") together with default interest, if any, at the rate of eight percent (8 %) per annum, payable in quarterly payments commencing on June 1, 2012, as such date may be extended as provided in the Agreement, calculated in accordance with the terms of Section 4 of the Agreement in an amount not to exceed maximum quarterly payments of $421,907.14; AND WHEREAS, the Grantor is desirous of securing payment of the Indebtedness to the Beneficiary; NOW THEREFORE, the Grantor, in consideration of the premises and for the purpose aforesaid, does hereby grant, bargain, sell and convey unto the said Public Trustee in trust for so long as Grantor has any Repayment Obligation under the Agreement, the following described real property, together with all improvements thereon, whether now existing or hereafter constructed and installed (herein collectively the "property") situate in the County of Pueblo, State of Colorado, to wit:: See attached Exhibit A. also known by street and number as: not available; assessor's schedule or parcel number: not available. TO HAVE AND TO HOLD the same, together with all and singular the privileges and appurtenances thereunto belonging, in trust nevertheless, that: a) in case of default in the payment of the Indebtedness or any part thereof, or in the payment of the interest thereon according to the tenor and effect of said Agreement, or b) in case default shall be made or violation or breach of any of the terms, conditions, covenants or agreements contained in this Deed of Trust, the Beneficiary may declare a violation of any of the covenants herein contained and may elect to advertise said property for sale, and demand such sale by filing a notice of election and demand for sale with the Public Trustee. Upon receipt of such notice of election and demand for sale, the Public Trustee shall cause such notice to be recorded in the recorder's office of the county in which said property is situated. The Public Trustee shall then give public notice of the time and place of sale by advertisement to be published for four weeks (once each week for five successive weeks) in some newspaper of general circulation at that time published in Pueblo County, the county in which said property is located. A copy of such notice shall be mailed to all persons entitled to receive notice as 179 TD 03/05/2009 08:48:14 AM Ga z S Clerk//Reco der, Pueblo County, Co ®IIIW1JVI AIdhl ihV101G4GIINIVINLUM111 ®1III provided by law. It shall and may then be lawful for the Public Trustee to sell said property for the highest and best price the property will bring in cash and to dispose of the said property (en masse or in separate parcels, as the said Public Trustee may think best), together with all the right, title and interest of the Grantor therein, at public auction at any place as may be specified by statute and designated in the notice of sale. The Public Trustee shall make and give to the purchaser of such property at such sale, a certificate of purchase as required by law. Unless the property is redeemed, the public trustee shall execute and record a confirmation deed to the holder of the certificate of purchase no less than fifteen business days after the date of sale or, if later, the expiration of all redemption periods and the receipt of all statutory fees and costs. The Public Trustee shall, out of the proceeds of such sale and after first paying and retaining all fees, charges and costs of making said sale, pay to the Beneficiary hereunder, the Indebtedness and interest due thereon according to the tenor and effect of the Agreement, and all moneys advanced by such Beneficiary for insurance, taxes and assessments, with interest thereon at eight (8) per cent per annum, rendering the overplus, if any, unto those persons entitled thereto as a matter of law. Said sale as evidenced by the confirmation deed executed and recorded by the Public Trustee shall operate as a perpetual bar, both in law and equity, against the Grantor and all other persons claiming the said property, or any part thereof, by, from, through or under the Grantor. The Beneficiary may purchase said property or any part thereof; and it shall not be obligatory upon the purchaser at any such sale to see to the application of the purchase money. The Grantor covenants with and warrants to the Public Trustee, that at the time of the ensealing of and delivery of these presents the Grantor is well seized of the said lands, tenements and property in fee simple, and has good right, full power and lawful authority to grant, bargain, sell and convey the same in the manner and form as aforesaid; hereby fully and absolutely waiving and releasing all rights and claims the Grantor may have in or to said lands, tenements and property as an exemption under and by virtue of any act of the General Assembly of the State of Colorado or of the United States Congress, now existing or which may hereafter be passed in relation thereto, and that the same are free and clear of all liens and encumbrances whatever, except easements, rights -of -way, reservations, restrictions, covenants and conditions of record. The Grantor further warrants to the Public Trustee the quiet and peaceable possession of said property against all persons who may lawfully claim the whole or any part thereof, and that the Grantor shall and will forever defend the title to said property against such person or persons. Until payment in full of the Indebtedness, the Grantor shall timely pay all taxes and assessments actually levied on the property, if any. Grantor will keep all improvements that may be on said lands insured against any casualty loss, including extended coverage, in a company or companies, meeting the net worth requirements of the Beneficiary hereof in an amount which will yield to the Beneficiary, after reduction by co- insurance provisions of the policy, if any, not less than the then total Indebtedness. Each policy shall contain a loss payable clause naming the Beneficiary as mortgagee and shall further provide that the insurance may not be canceled upon less than ten 1797882 TD 03/05/2009 08:48:14 AM Page: 3 of 5 R 25.00 D 0.00 T 26.00 Gilbert Ortiz Clerk /Recorder, Pueblo County Co ®III Wri.IiL"NAWAVIA %Lylimw%Mimi 11111 days written notice to the Beneficiary. At the option of the Beneficiary, the original policy or policies of insurance shall be delivered to the Beneficiary as further security for the Indebtedness. Should the Grantor fail to insure and deliver the policies or to pay taxes or assessments as the same fall due, the Beneficiary may make any such payments or procure any such insurance, and all monies so paid with interest thereon at the rate of eight (8) per cent per annum shall be added to and become a part of the Indebtedness secured by this Deed of Trust and may be paid out of the proceeds of the sale of the property if not paid by the Grantor. In addition, and at its option, the Beneficiary may declare the Indebtedness secured hereby and this Deed of Trust to be in default for fai lure to procure insurance or make any of the payments required by this paragraph. IN CASE OF ANY DEFAULT whereby the right of foreclosure occurs hereunder, the Beneficiary or holder of the certificate of purchase shall at once become entitled to the possession, use and enjoyment of the property aforesaid, and to the rents, issues and profits thereof, from the accruing of such right and during the pendency of foreclosure proceedings and the period of redemption, if any. Such possession shall at once be delivered to the Beneficiary or the holder of the certificate of purchase on request. Upon refusal, delivery of such possession may be enforced by the Beneficiary or the holder of the certificate of purchase by any appropriate civil suit or proceeding. The Beneficiary or holder of the certificate of purchase shall be entitled to a Receiver for said property, and of the rents, issues and profits thereof, after such default, including the time covered by foreclosure proceedings and the period of redemption, if any, and shall be entitled thereto as a matter of right without regard to the solvency or insolvency of the Grantor or of the then owner of said property and without regard to the value thereof. Such Receiver may be appointed by any court of competent jurisdiction upon application by Beneficiary, with prior notice given by certified mail, return receipt requested, to Grantor at the address set forth above (with a copy to Senn Visciano P.C., Arm: Mark Senn, 1801 California Street, Suite 4300, Denver, Colorado 80202), and all rents, issues and profits, income and revenue therefrom shall be applied by such Receiver to the payment of the Indebtedness hereby secured, according to the law and the orders and directions of the court. IN THE CASE OF ANY DEFAULT in the payment of the Indebtedness or any part thereof according to the tenor and effect of said Agreement, or of a breach of violation of any of the covenants or agreements herein by the Grantor, the whole of said principal sum of the Indebtedness hereby secured and the interest thereon to the time of the sale may at once, at the option of the _ Beneficiary, become due and payable; and the said property be sold in the manner and with the same effect as if said Indebtedness had matured. If foreclosure be made by the Public Trustee, attorney's fees in the sum of $15,000.00 for services in the supervision of said foreclosure proceedings shall be allowed by the Public Trustee as part of the cost of foreclosure; and if foreclosure be made through the courts, a reasonable attorney's fee shall be taxed by the court as a part of the cost of such foreclosure proceedings. 17 TD 03/05/2009 08:48:14 AM Ga16er[ r0Reoorder Puebla ou 0 ntY Co ®III hW+PV NAR141 111 HIN MV M K "1 11111 IT IS FURTHER UNDERSTOOD AND AGREED that if a release of this deed of trust is required, Grantor will pay all fees due to the Publ is Trustee in connection therewith and the costs of recording such release, but will not be liable for any other costs or fees incurred by Beneficiary in connection therewith, including without limitation any attorneys fees incurred by Beneficiary; and that all of the covenants and agreements herein contained shall extend to and be binding upon the successors and assigns of the respective parties hereto. ATTEST: - E{CCn , J-Jf Secretary [SEAL] STATE OF COL -DP At4 - ) ss. COUNTY OF yJe lob ) VESTAS TOWERS AMERICA, INC. a Delaware Corporation By Hans Jespersen, S retary The foregoing instrument was acknowledged before me this Z--J day of ryl a rat , 2009, by Hans Jespersen, as Secretary of Vestas Tower America, Inc., a Delaware Corporation. Witness my hand and official seal. My commission expires: I( -ot -o9 to 04 1797882 TD 03/05/2009 08:48:14 AM Page: 5 of 5 R 26.00 D 0.00 T 26.00 Gilbert Ortiz Clerk /Recorder, Pueblo County, Cc ®III K IVIN VY IiNW ALIMMM I 1411111 EXHIBIT A CONSIDERING THE SOUTH LIVE OF THE SE 114 OF SECTION 1, TOWNSHIP 22 SOUTH, RANGE 65 WEST OF THE 6TH PRINCIPAL MERIDIAN TO BEAR N 88 0 38'07` W., AND ALL BEARINGS CONTAINED HEREIN ARE RELATIVE THERETO. ALL OF THE S V2 OF SECTION 35 LYING EAST OF THE INTERSTATE 25 RIGHT -OF -WAY LINE AS PRESENTLY LOCATED AND ALL OF THE S V2 OF SECTION 36 LYING WEST OF THE BURLINGTON NORTHERN & SANTA FE RAILROAD RIGHT -OF -WAY LINE AS PRESENTLY LOCATED IN TOWNSHIP 21 SOUTH, RANGE 65 WEST OF THE 6TH PRINCIPAL MERIDIAN .. AND ALL OF SECTION I LYING WEST OF THE BURLINGTON NORTHERN & SANTA FE RAILROAD RIGHT -0F -WAY LINE AS PRESENTLY LOCATED AND LYING NORTH OF THE LIME ROAD RIGHT -OF -WAY LINE AS PRESENTLY LOCATED AND ALL OF SECTION 2 LYING EAST OF INTERSTATE 25 RIGHT -OF -WAY LINE AS PRESENTLY LOCATED AND LYING NORTH OF THE LIME ROAD RIGHT -OF -WAY LINE AS PRESENTLY LOCATED IN TOWNSHIP 22 SOUTH, RANGE 65 WEST OF THE 6TH PRINCIPAL MERIDIAN EXCEPTING THEREFROM: A PARCEL OF LAND LOCATED IN A PORTION OF SECTION 2, TOWNSHIP 22 SOUTH, RANGE 65 WEST OF THE 6TH PRINCIPAL MERIDIAN BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE EASTERLY RIGHT -OP -WAY LINE OF INTERSTATE 25 AS PRESENTLY LOCATED AND THE NORTHERLY LINE OF SECTION 2, TOWNSHIP 22 SOUTH, RANGE 65 WEST; THENCE S 89 0 13'25 "E., ALONG THE NORTHERLY LINE OF SAID SECTION 2, A DISTANCE OF 179.38 FEET; THENCE S 00 ° 46'33" W„ A DISTANCE OF 3870.47 FEET TO A POINT ON THE NORTHERLY RIGHT -OF -WAY LINE OF LIME ROAD AS PRESENTLY LOCATED; THENCE ALONG THE NORTHERLY RIGHT -OF -WAY LINE OF LIME ROAD AND THE EASTERLY RIGHT -OF -WAY OF INTERSTATE 25 THE FOLLOWING SEVEN (7) COURSES: 1, S 85 °59'00' W., A DISTANCE OF 841-19 FEET; 2. WESTERLY ALONG THE ARC OF A CURVE TO THE RIGHT WHOSE RADIUS 795.00 FEET, A DISTANCE OF 658.09 FEET: 3. N 50 °15'34' W., A DISTANCE OF 152.46 FEET; 4, NORTHWESTERLTALONG-THE ARC OF A CURVE TO THE LEFT WHOSE RADIUS IS 2915.00 ' FEET AND WHOSE CENTER BEARS S 43 4 1720 W., A DISTANCE OF 60.01 FEET- - 5. N 33 "51'06" W., A DISTANCE OF 380.20 - FEET; 6. N 24 0 46'13* E., A DISTANCE OF 1061.33 FEET; 7. N 28°2A'24 E., A DISTANCE OF 2613.00 FEET TO THE POINT OF BEGINNING. ALL IN THE COUNTY OF PUEBLO, STATE OF COLORADO. AND EXCEPT ANY ADJOINING VACATED STREET OR ALLEY, IF ANY, AS EXCEPTED IN WARRANTY DEED RECORDED AUGUST 22, 2008 UNDER RECEPTION NO. 1779800. e t ` 17 ST PUTH 03/05/2009 08:48:14 AM Gl lbert l Or�tiz Clerk/Rec Pueblo County. Cc mill FY.6jVJ4a,'I :lh%RLV1M 1 MIi 1111"1 ®1111 STATEMENT OF AUTHORITY Pursuant to C.R.S. §38 -30 -172, the undersigned hereby executes this Statement of Authority on behalf of Vestas Towers America, Inc., a Delaware corporation, an entity other than an individual, capable of holding title to real property (the "Entity "), and states as follows: The name of the Entity is: Vestas Towers America, Inc. The Entity is a Delaware corporation. The mailing address for the Entity is: 11140 Eastman Park Drive, Windsor, CO 80550 The name or position of the person authorized to execute instruments conveying, encumbering, or otherwise affecting title to real property on behalf of the Entity is: Hans Jespersen as Secretary The limitations upon the authority of the person named above or holding the position described above to bind the Entity are as follows: None. Other matters concerning the manner in which the Entity deals with any interest in real property are: ,None. EXECUTED this ;- 1 ^ d - day of A _ ,2009. Vestas Towers America, Inc., a Delaware corporation, By: O� Name: Ha s Jespersen Title: Secretary 1797881 ST Al1TH 03/05/2009 08:48:14 AM Page: 2 of 2 R 11.00 D 0.00 T 11.00 Gilbert Ortiz ClarklRecortler, Pueblo County, Co ®III 86111 he'lalk 161111W RICLIrhNIM"I 11111 STATE OF COI..o/ -A�Z�0 ) ) ss. COUNTY OF The foregoing instrument was acknowledged before me this , &k day of 64C( - .'c k., , 2009, by Hans Jespersen as Secretary of Vestas Tower 'America, Inc., a Delaware Corporation. Witness my hand and official seal. My commission expires: I I Public.