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HomeMy WebLinkAbout13889 RESOLUTION NO. 13889 A RESOLUTION APPROVING A LOAN OF SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($750,000) TO BIG R PROPERTIES, LLC, A COLORADO LIMITED LIABILITY COMPANY AND AN AFFILIATE OF BIG R HOLDINGS, INC., A COLORADO CORPORATION, RELATING TO A JOB CREATING CAPITAL IMPROVEMENT PROJECT, TRANSFERRING SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($750,000) FROM THE 1992-2021 SALES AND USE TAX CAPITAL IMPROVEMENT PROJECTS FUND AND GRANTING A VARIANCE FROM THE CRITERIA AND STANDARDS ESTABLISHED BY SECTION 14-4- 85.3 (b) (7) OF THE PUEBLO MUNICIPAL CODE BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The City Council finds and determines that the expenditure of $750,000 for a job creating capital improvement project with Big R Properties, LLC, a Colorado limited liability company (“Properties”) and Big R Holdings, Inc, a Colorado Corporation (“Holdings”), is for a public purpose and in furtherance of a municipal function and will create employment opportunities justifying the expenditure of public funds. SECTION 2. The City Council further finds that the incentives hereby granted to Properties seemingly fail to meet the criteria and standards established by PMC Sec. 14-4-85.3(b)(7). However, the City Council further finds and concludes that PMC Sec. 14-4-85.3(c) of the Criteria Ordinance provides that the City Council “may grant a variance” of the requirements “if the City Council determines in its sole discretion that the project will create employment for new employees justifying the expenditure of funds.” SECTION 3. The City Council further finds and concludes that good cause exists to grant Properties a variance from the criteria and standards established by Section 14-4-85.3(b)(7) for the following two reasons: 1. Properties and Holdings have fully complied with all of previous employment commitments. 2. The interest payments on the 02-12-18 Promissory Note, at the end of its ten-year term, shall be approximately $250,000 (subject to reductions for prepayments). The interest payments can be deposited in the City’s Capital Buildings Fund. SECTION 4. Funds in the aggregate amount of $750,000 are hereby authorized to betransferred, expended and made available out of the 1992-2021 Sales and Use Tax Capital Improvement Projects Fund for the sole purpose of the job creating capital improvement project authorized herein. The funds hereby authorized to be transferred and expended shall be released, disbursed and paid by the City’s Director of Finance as specified herein. SECTION 5. The officers and staff of the City are authorized and directed to perform any and all acts consistent with the intent of this Resolution which are necessary or desirable to implement the loan transaction described herein. SECTION 6. This Resolution shall become effective immediately upon final passage. INTRODUCED February 12, 2018 BY: Ed Brown MEMBER OF CITY COUNCIL APPROVED: PRESIDENT OF CITY COUNCIL ATTESTED BY: ACTING DEPUTY CITY CLERK City Clerk’s Office Item # Q-1 Background Paper for Proposed Resolution COUNCIL MEETING DATE: February 12, 2018 TO: President Christopher A. Nicoll and Members of City Council CC: Sam Azad, City Manager VIA: Brenda Armijo, Acting City Clerk FROM: Daniel C. Kogovsek, City Attorney SUBJECT: A RESOLUTION APPROVING A LOAN OF SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($750,000) TO BIG R PROPERTIES, LLC, A COLORADO LIMITED LIABILITY COMPANY AND AN AFFILIATE OF BIG R HOLDINGS, INC., A COLORADO CORPORATION, RELATING TO A JOB CREATING CAPITAL IMPROVEMENT PROJECT, TRANSFERRING SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($750,000) FROM THE 1992-2021 SALES AND USE TAX CAPITAL IMPROVEMENT PROJECTS FUND AND GRANTING A VARIANCE FROM THE CRITERIA AND STANDARDS ESTABLISHED BY SECTION 14-4- 85.3 (b) (7) OF THE PUEBLO MUNICIPAL CODE SUMMARY: Attached is a Resolution approving a loan of $750,000 to Big R Properties, LLC, a Colorado limited liability company (the “Properties”). PREVIOUS COUNCIL ACTION: City Council has approved Employment Agreements with Big R Holdings, Inc., a Colorado corporation (“Holdings”) an affiliate of Properties, in 2009, 2013 and 2016 as described below. BACKGROUND: In 2009, City Council granted Holdings economic incentives in the amount of $564,000 in exchange for the creation of 40 full-time primary jobs at a distribution center and office building located at 350 Keeler Parkway in the Pueblo Airport Industrial Park. In 2013, City Council granted Holdings an additional $600,000 in exchange for the creation of 30 additional full-time primary jobs at 350 Keeler Parkway. The 2013 Employment Agreement which obligates Holdings to employ seventy (70) full-time employees, remains in full force and effect. In 2016, the City Council approved the expansion and relocation of Holdings’ distribution center and administrative offices from 350 Keeler Parkway to 1 McDonnell Douglas Street (the former “Boeing Building”) in the Airport Industrial Park. Holdings agreed to hire thirty-three (33) new full- time employees (for a total of 103). On February 1, 2018, the City sold 1 McDonnell Douglas Street (n/k/a 100 Big R Street) to Properties and the City purchased 350 Keeler Parkway from Properties. On February 1, 2018, Properties delivered to the City a Promissory Note in the amount of $6,856,000 with an adjustable interest rate thereon computed at the “prime rate” of Wells Fargo Bank, NA plus one percent (1%). The 02-01-18 Promissory Note obligates the Company to make monthly “interest only” payments for its ten-year term. At the conclusion of the ten-year term, the entire principal balance is due and payable by Properties to the City. Pursuant to PMC Sec. 14-4-85.3 (c), on November 28, 2016, by Resolution No. 13572, the City Council granted Properties a waiver of the requirements of PMC 14-4-85.3 (b) (7), which would have required that interest on the loan to Properties be calculated by using the “prime rate” of Wells Fargo Bank, NA plus three percent (3%), rather than the “prime rate” plus one percent (1.0%) provided for in the 02-01-18 Promissory Note. FINANCIAL IMPLICATIONS: The attached Resolution approves a loan from the City to Properties on the following terms and conditions:  Promissory Note in the principal amount of $750,000 with an adjustable interest rate computed at the “prime rate” of Wells Fargo Bank, NA plus one and one-half percent (1.5%). The 02-12-18 Promissory Note shall obligate Properties to make principal and interest payments for its ten-year term. At the conclusion of the ten-year term, the principal balance shall be paid in full.  The interest rate shall be adjusted annually to reflect changes in the “prime rate” of Wells Fargo Bank, N.A. commencing on the first annual anniversary date of the 02-12-18 Promissory Note.  The 02-12-18 Promissory Note (like the 02-01-18 Promissory Note) shall be secured by a first priority deed of trust to 100 Big R Street, Pueblo, Colorado 81001, which security interest shall be created through an amendment to the deed of trust on this property filed in connection with the 02-01-18 Promissory Note. Properties may elect to prepay the 02- 12-18 Promissory Note in full or in part at any time. PMC Sec.14-4-85.3(b)(7) anticipates that interest on loans made by the City shall be calculated by using the “prime rate” of Wells Fargo Bank, NA plus three percent (3%) rather than the “prime rate” plus one and a half percent (1.5%) provided for in the attached 02-12-18 Promissory Note. However, PMC Sec. 14-4-85.3(c) of the Criteria Ordinance provides that the City Council “may grant a variance” of these requirements “if the City Council determines in its sole discretion that the project will create employment for new employees justifying the expenditure of funds.” City staff is recommending that City Council grant Properties the requested interest rate variance for two reasons: 1. Properties and Holdings have fully complied with all of its previous employment commitments. 2. The interest payments on the 02-12-18 Promissory Note, at the end of its ten-year term shall be approximately $250,000, subject to reductions for prepayments. The interest payments can be deposited in the City’s Capital Buildings Fund. BOARD/COMMISSION RECOMMENDATION: Not applicable to this Resolution. STAKEHOLDER PROCESS: Not applicable to this Resolution. If this Resolution is not approved, the Company will be delayed in its renovation of its distribution and office center located at the Airport Industrial Park. RECOMMENDATION: The Pueblo Economic Development Corporation recommends approval of this Resolution. Attachments: Proposed Resolution; proposed Promissory Note; and proposed Amendment to Deed of Trust. PROMISSORY NOTE Principal Amount: U.S. $750,000.00 Date of Note: February 12, 2018 FOR VALUE RECEIVED, the undersigned Big R Properties, LLC, a Colorado limited liability company, hereinafter referred to as "Borrower" and its successors in interest, promises to pay to the City of Pueblo, a Municipal Corporation, hereinafter referred to as the "Note Holder", the principal sum of Seven Hundred Fifty Thousand and No/100 Dollars (U.S. ($750,000.00), together with per annum interest thereon from the date hereof until paid in full, calculated at the "prime rate" of Wells Fargo Bank, N.A. plus one and one-half percent (1.5%). Annual adjustments of the interest rate will commence on the first anniversary date of this Promissory Note. Borrower shall make monthly payments of combined principal and interest in the amounts set forth on the amortization schedule attached hereto as Exhibit A, payable on the first day of each month while any principal is outstanding hereunder, with the first such payment to be made March 1, 2018. All payments of principal and interest shall be paid in full on February 1, 2028 (the "Maturity Date"). All payments of principal and interest hereunder, provided payment is made in accordance herewith, shall be payable at the Note Holder's office at 1 City Hall Place, Pueblo, Colorado, 81003, or such other place as Note Holder may designate. This Promissory Note and all principal and interest payable hereunder are secured by that certain First Amendment to Deed of Trust ("Deed of Trust") of even date herewith upon real property, and all improvements thereon, situated in the County of Pueblo, State of Colorado and described more particularly as: Lots 46 and 47, Pueblo Memorial Airport Industrial Park Subdivision, Pueblo County, State of Colorado, according to the recorded plat thereof filed in the records of the Pueblo County Clerk and Recorder, also known by street and number as 100 Big R Street (formerly known as 1 McDonnell Douglas Street), Pueblo, CO 81001. The Borrower reserves the right to prepay all or any part of the principal owing on this Note at any time or times prior to maturity without notice or payment of any premium or penalty. Upon any such prepayments, the amortization schedule for this Note shall be updated as necessary to reflect the then-outstanding payments of principal and interest. In the event the Borrower fails to make any payment or principal or interest under this Promissory Note within ten (10) days after receipt of written notice from the Note Holder (such failure, a "Default"), then the entire unpaid principal hereof, together with all accrued interest thereon, shall, at the option of the Note Holder, and without notice, become at once due and payable and shall accrue interest at the default rate of eight percent (8%) per annum thereafter until paid in full, and no failure by the Note Holder to —1— exercise such option shall be deemed or construed as a waiver of the right to exercise the same in the event of any subsequent default or breach. If after an uncured Default, the Note Holder deems it necessary to place this Promissory Note in the hands of an attorney for collection by proceedings in a court of competent jurisdiction or other action is taken by the Note Holder to enforce the provisions of this Promissory Note, then the Borrower agrees to pay all such costs of collection or enforcement, including but not limited to reasonable attorney fees, court costs and all other reasonable expenses incurred in connection with such enforcement and collection. The Borrower hereby waives presentment, dishonor, notice of dishonor, protest and delay. Borrower further agrees that except upon payment in full of this Promissory Note, no release of any security for the indebtedness or extension of time for payment of same, or any installment thereof, and no alteration, amendment or waiver of any provision of this Promissory Note or the Deed of Trust shall in any manner, release, discharge, modify or affect the obligations of Borrower under this Promissory Note. This Promissory Note is made in and shall be governed by and interpreted in accordance with the laws of the State of Colorado. The invalidity or unenforceability of any provision of this Promissory Note or the Deed of Trust shall not affect or impair any other provision, it being the intent of the parties in such circumstances that the remainder of this Promissory Note or Deed of Trust be enforced to the greatest extent practicable, and that the indebtedness be repaid. In the event of any litigation arising under this Promissory Note or the Deed of Trust, exclusive venue for any such litigation shall be Pueblo County, Colorado. All such litigation shall be filed in the District Court and Borrower submits to the jurisdiction of such District Court. Borrower hereby waives trial by jury in any action or proceeding, or any matters whatsoever arising out of or in any way connected with this Promissory Note or the Deed of Trust. REST OF THIS PAGE IS LEFT INTENTIONALLY BLANK SIGNATURE PAGE TO FOLLOW -2- Executed and delivered and effective the date first above written. BORROWER: Big RPr..e By: �' Bryce favid Blain, Jr., a Manager STATE OF COLORADO ) ss. COUNTY OF PUEBLO ) The foregoing instrument was acknowledged before me this io2 day of /rc44to9AY 2018, by Bryce David Blain, Jr., a Manager of Big R Properties, LLC, a Colorado limited liability company. My commission expires: Witness my hand - d official se : i8 NOTARY PUBLIC MICHAEL B. 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AND WHEREAS, Big R Holdings and the City of Pueblo are parties to that certain Agreement dated November 28, 2016, a true, complete and correct copy of which is attached and incorporated herein by reference, as Exhibit B hereto (the "2016 Agreement"), whereby Big R Holdings agreed to comply with certain employment requirements enumerated in the 2016 Agreement in consideration of additional funds in the amount of$1,194,000.00 advanced from the City of Pueblo to Big R Holdings; AND WHEREAS, the Grantor is desirous of securing payment of the Repayment Obligation of Big R Holdings pursuant to Section 4 of the 2016 Agreement (the "2016 Repayment Obligation"); AND WHEREAS, the Grantor has executed a Promissory Note, hereinafter referred to as the "Note", dated the 1st day of February, 2018 (the "2-01-18 Note") for the principal sum of Six Million Eight Hundred Fifty Six Thousand and No/100 Dollars (U.S. $6,856,000.00), payable to the order of the City of Pueblo, a Municipal Corporation, which amount is an indebtedness of Grantor payable with interest in accordance with the terms of said Note; and, 1 R-co des Electronically II*AI wad County 1E6 a Date Time implit e.com 800.460.56 DEED OF TRUST THIS INDENTURE ("Deed of Trust"), with an effective date of February 1, 2018, is made between Big R Properties, LLC, a Colorado limited liability company, whose address is 100 Big R Street (or, alternatively 1 McDonnell Douglas Street), Pueblo, CO 81001 hereinafter referred to as ("Grantor"), and the Public Trustee of the County of Pueblo, State of Colorado hereinafter referred to as ("Public Trustee") for the benefit of the City of Pueblo, a municipal corporation whose address is One City Hall Place, Pueblo, CO 81003 ("City of Pueblo" or "beneficiary"); WITNESSETH THAT, WHEREAS, pursuant to an agreement dated October 1, 2009, the City of Pueblo advanced funds in the amount of $564,000.00 to Big R of Lamar, Inc., a Colorado corporation affiliated with the Grantor, for a job creating capital improvement project; AND WHEREAS, Big R Holdings, Inc., a Colorado corporation affiliated with the Grantor ("Big R Holdings") and the City of Pueblo are parties to that certain Agreement dated December 23, 2013, a true, complete and correct copy of which is attached and incorporated herein by reference, as Exhibit A hereto (the "2013 Agreement"), whereby Big R Holdings agreed to comply with certain employment requirements enumerated in the 2013 Agreement in consideration of the $564,000.00 advanced in 2009 and additional funds in the amount of $600,000.00 subsequently advanced from the City of Pueblo to Big R Holdings; AND WHEREAS, the Grantor is desirous of securing payment of the Repayment Obligation of Big R Holdings pursuant to Section 4 of the 2013 Agreement (the "2013 Repayment Obligation"). AND WHEREAS, Big R Holdings and the City of Pueblo are parties to that certain Agreement dated November 28, 2016, a true, complete and correct copy of which is attached and incorporated herein by reference, as Exhibit B hereto (the "2016 Agreement"), whereby Big R Holdings agreed to comply with certain employment requirements enumerated in the 2016 Agreement in consideration of additional funds in the amount of$1,194,000.00 advanced from the City of Pueblo to Big R Holdings; AND WHEREAS, the Grantor is desirous of securing payment of the Repayment Obligation of Big R Holdings pursuant to Section 4 of the 2016 Agreement (the "2016 Repayment Obligation"); AND WHEREAS, the Grantor has executed a Promissory Note, hereinafter referred to as the "Note", dated the 1st day of February, 2018 (the "2-01-18 Note") for the principal sum of Six Million Eight Hundred Fifty Six Thousand and No/100 Dollars (U.S. $6,856,000.00), payable to the order of the City of Pueblo, a Municipal Corporation, which amount is an indebtedness of Grantor payable with interest in accordance with the terms of said Note; and, OA °,3.3 0 .La, o 7. 1 AND WHEREAS, the Grantor is desirous of securing performance of its payment obligations under the 02-01-18 Note and payment of the indebtedness and interest thereon as specified therein. 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 until the full payment and performance of the contractual and payment obligations of Big R Holdings under the 2013 Agreement and until the full payment and performance of the contractual and payment obligations of Big R Holdings under the 2016 Agreement, as aforesaid, and until the full payment of Grantor's payment obligations under the 02-01-18 Note as aforesaid, the following described real property, to wit: Lots 46 and 47, Pueblo Memorial Airport Industrial Park Subdivision, Pueblo County, State of Colorado, according to the recorded plat thereof filed in the records of the Pueblo County Clerk and Recorder, Except and subject to: ❑ none; or ® the following matters: See Exhibit C attached hereto also known by street and number as 100 Big R Street (or, alternatively, 1 McDonnell Douglas Street), Pueblo, CO 81001 (the "Real Property") TO HAVE AND TO HOLD the same, together with all and singular privileges and appurtenances thereunto belonging (collectively, such Real Property, privileges and appurtenances, the "Property"), in trust nevertheless, that in case of a default by: (a) Big R Holdings in the payment of its 2013 Repayment Obligation; (b) Big R Holdings in the payment of its 2016 Repayment Obligation; or (c) Grantor's payment obligations under the 02-01-18 Note, including payment of the indebtedness as specified therein or of any interest thereon according to the tenor and effect of said Note, any of which payment defaults are not cured within sixty (60) days after written notice specifying the default is given by the City of Pueblo to Grantor, the beneficiary hereunder or the legal holder of the indebtedness secured hereby may declare a violation of any of the covenants herein contained and, subject to any statutory rights of Grantor, 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 four successive weeks) in some newspaper of general circulation at that time published in the county or counties in which said property is located. A copy of such notice shall be mailed to all persons entitled to receive notice as 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 2 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 (a "Certificate of Purchase"). 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 days after 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 any amounts due pursuant to the 2013 Agreement signed Big R Holdings, the 2016 Agreement signed Big R Holdings, or under the 02-01-18 Note signed by Grantor, as applicable, and all moneys advanced by such beneficiary for insurance, taxes and assessments, with interest thereon at eight 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 City of Pueblo 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 beneficiary that on the date of execution of this Deed of Trust, the Grantor has good title to the Real Property in fee simple and has all right, power, and authority required 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 Property as a Homestead Exemption, or other 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 as of the date hereof except liens, easements, conditions, restrictions, covenants and reservations of record and except the Permitted Exceptions listed on Exhibit C which is attached hereto and incorporated herein by reference. The Grantor shall timely pay all taxes and assessments levied on the Property; any and all amounts due on account of principal and interest or other sums on any junior encumbrances, if any; and will keep all improvements that may be on said Real Property insured against any casualty loss, including extended coverage, with a company or companies licensed to authorized to conduct business in the State of Colorado with an A.M. Best rating of B+ or higher, in an amount which will yield to the holder of the indebtedness, after reduction by co-insurance provisions of the policy, if any, not less than the then-total indebtedness as aforesaid. Each policy shall contain a loss payee endorsement naming the beneficiary as mortgagee and shall further provide that the insurance may not be canceled upon less than ten days written notice to the beneficiary. Should the Grantor fail to insure and deliver a certificate evidencing the 3 required coverage under the policies or to pay taxes or assessments as the same fall due, or to pay any amounts payable upon junior encumbrances, if any, 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 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 failure to procure insurance or make any of the payments required by this paragraph, to the extent such default continues for a period of thirty (30) days after written notice thereof is delivered by beneficiary to Grantor. If the Grantor, without beneficiary's prior written consent, hereafter sells or transfers all or any part of the property or an interest therein, excluding a Permitted Transfer (as defined herein) or the creation of a lien or encumbrance subordinate to this Deed of Trust, beneficiary may, at beneficiary's option, declare all the sums secured by this Deed of Trust to be immediately due and payable. The foregoing notwithstanding, Grantor has the right to transfer and assign the Property upon written notice to the beneficiary and Public Trustee to any entity that is an affiliate of Grantor, provided that (i) Grantor shall notify the beneficiary and Public Trustee in writing of the occurrence of such assignment prior to the assignment and shall provide a true and correct copy of assignment and assumption agreement, together with such other documentation supporting or evidencing said assignment as may be reasonably requested by the beneficiary and (ii) the assignee assumes all of the assets and/or liabilities of the Grantor by written agreement and agrees to perform all of the obligations of the Grantor under this Deed of Trust. For purposes of this Deed of Trust, an "affiliate" shall mean any entity controlling, controlled by, or under common control with the Grantor, whether control is by ownership, voting rights, or through contractual rights. IN CASE OF ANY DEFAULT hereunder that is not cured within the time provided for cure thereof, whereby the right of foreclosure occurs hereunder, the holder of a 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 holder of said Certificate of Purchase on request. Upon refusal, delivery of such possession may be enforced by the holder of said certificate of purchase by any appropriate civil suit or proceeding. The holder of said Certificate of Purchase shall be entitled to seek a Receiver for said property and of the rents, issues and profits thereof, after such uncured default, including the time covered by foreclosure proceedings and the period of redemption, if any. Such Receiver may be appointed by any court of competent jurisdiction upon written notice to Grantor, and all rents, issues and profits, income and revenue therefrom shall be applied by any Receiver appointed to the payment of the indebtedness as aforesaid, hereby secured, according to the law and the orders and directions of the court. IN THE CASE OF ANY DEFAULT by Big R Holdings in the payment of its 2013 Repayment Obligation or its 2016 Repayment Obligation, or default by Grantor in 4 Grantor's payment obligations under the 02-01-18 Note and payment of the indebtedness as specified therein, or in the payment of any interest thereon, or of a breach or violation of any of the covenants or agreements herein by the Grantor, any of which defaults is not cured within sixty (60) days after written notice specifying the default is given by the City of Pueblo to Grantor, then the whole of said obligations hereby secured and the interest thereon to the time of the sale may at once, at the option of the legal holder thereof, 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 a reasonable amount for services in the supervision of said foreclosure proceedings shall be allowed by the Public Trustee as a 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. ANYTHING ELSE IN THIS DEED OF TRUST TO THE CONTRARY NOTWITHSTANDING, all tangible and intangible personal property, including without limitation all computers, cabling, furniture, goods, inventory, racks, racking and related equipment, other equipment, including without limitation all trade fixtures (including items bolted to walls or flooring) (collectively, "Personal Property") located at the Real Property is excluded from the Property secured by this Deed of Trust. All Personal Property, whether now owned or hereafter acquired, shall remain the sole property of Big R Holdings or Grantor, and Big R Holdings or Grantor, as applicable, shall have the right to install or remove Trade Fixtures from the Real Property at their sole discretion at any time and from time to time, provided that Grantor shall promptly repair any damage associated with such removal. Grantor shall, in the event of a Default not cured within the time provided for cure thereof and upon written demand by beneficiary or the Public Trustee, at Grantor's sole cost and expense, remove the Trade Fixtures prior to any sale of the Property by the Public Trustee hereunder. REST OF THIS PAGE LEFT INTENTIONALLY BLANK SIGNATURE PAGE TO FOLLOW 5 Executed to be effective the date first above written. GRANTOR: Big R Properties, LLC t B4/ /7y: Adam Carroll, as Agent/Attorney-In-Fact for Bryce David Blain, Jr., Manager STATE OF COLORADO ) ss. COUNTY OF PUEBLO ) The foregoing instrument was acknowledged before me this ( day of LI The 2018, by Adam Carroll, as Agent/Attorney-In-Fact for Bryce David Blain, Jr., aManager of Big R Properties, LLC, a Colorado limited liability company. My commission expires: Witness my hand and official seal: 1 N TARY PUBL' N AND FOR THE STATE OF COLORADO KRISTIE L. BACA NOTARY PUBLIC STATE OF COLORADO NOTARY ID N 20114038606 MY COMMISSION EXPIRES JUNE 13,2019 6 EXHIBIT A 2013 Agreement See attached. 7 AGREEMENT THIS AGREEMENT entered into as of December 23, 2013 between Pueblo, a municipal corporation(the "City") and Big R Holdings, Inc., a Colorado corporation (the "Company"). WHEREAS, Company has expressed a willingness to expand a distribution center and its business administration offices within the City of Pueblo or the Pueblo Memorial Airport Industrial Park, and in furtherance thereof has through the Pueblo Economic Development Corporation made application for funds with the City, and WHEREAS, the City has approved such application and will make funds available to 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: "Continuing Guaranty" means the Continuing Guaranty attached hereto. "Employment Commitment Date" means January 1, 2017. "Equipment" means new business personal property and trade fixtures (including, but not limited to forklifts, trucks, trailers, pickups, fixtures, racking, computers, office furniture, fax machines, scanners, copiers, and other tangible personal property installed, kept, maintained and used by Company in or in conjunction with the Facility, or a new facility, having an exhaustible useful life of more than five (5) years which can be determined or estimated with reasonable accuracy. "Equipment" does not mean computer software or computer software development costs. "Equipment" also includes the cost of building remodeling, including but not limited to electrical, plumbing, lighting, heating, cooling and other building improvements, new offices, docks, doors, paint and other direct improvements to the Facility. "Facility" means the distribution center and business administration offices located at the Pueblo Memorial Airport Industrial Park, having a street address of 350 Keeler Parkway, Pueblo, Colorado, 81001, or such other facility located within the City of Pueblo or the Pueblo Memorial Airport Industrial Park, wherein Company will conduct its business operations. "Full-Time Employee" means a person who actually performs work at the Facility for not less than thirty-five (35) hours per week whether employed by Company or by an outside entity acting as an agency to provide Full-Time Employees for Company. "Quarter" means three consecutive calendar months commencing January 1, April 1, July 1 and October 1 of each calendar year. EXHIBIT 4811-8237.5446.6 "Quarterly Employees" means the sum of the aggregate number of Full-Time Employees on each business day of a Quarter,divided by the sum of the business days in such Quarter. 2. If Company is not in default under this Agreement, City will advance to or for the benefit of Company funds in the amount of $600,000.00 (the "City Funds"), subject to and contingent upon the following conditions and covenants which Company agrees to perform and comply with: (a) City Funds will be advanced by City to Company for the expansion of or improvements to its Facility or a new facility or for the acquisition of Equipment by Company at fair market value from a reputable vendor in an arms-length transaction. Acquisition of equipment from any person or entity related to or a subsidiary of Company is not an arms-length transaction. (b) Company shall file in the office of the City Clerk copies of the following: (i) 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(s) of the governing board of Company approving this Agreement and the First Amendment to Deed of Trust, and authorizing its officers to execute and deliver this Agreement and the First Amendment to Deed of Trust and related documents in the name of Company, (iii) executed Continuing Guaranty, and (iv) evidence reasonably satisfactory to City that Company will expand business operations at the Facility. 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 March 31, 2014, 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 a conditions precedent to the disbursement of City Funds for the acquisition of Equipment or remodeling or construction costs, Company shall file (i) with the City Clerk the documents described in Paragraph (b) above, and (ii) with the 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 or remodeling or for Equipment, identifying the construction or remodeling or Equipment for which payment is sought, including invoices therefore and certificates that such construction has occurred or the delivery and installation of Equipment in the Facility, together with documentation, satisfactory to City, establishing such Equipment has an exhaustible useful life of five (5) or more years. All City Funds, if any, received by Company shall be deposited in a separate account and held in trust by Company for the sole and only purpose of paying for construction or remodeling or the purchase of Equipment. 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 Company will on and after the Employment Commitment Date continuously conduct its business operations at the Facility and employ not less than seventy (70) Full-Time Employees at the Facility whose annual compensation shall average at least $48,416.00. Company will use good 2 4811-8237-5446.6 faith efforts in accordance with its sound business practices to employ residents of the City of Pueblo as Full-Time Employees including, without limitation, engaging in reasonable programs and posting of employment openings in the City of Pueblo (collectively the "Employment Commitment"). 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, 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 seventy (70) Full-Time Employees employed at the Facility by Company multiplied by $593.88 (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 60, the amount payable by Company to City on or before the fifteenth (15th) day of the next calendar month would be (70 - 60)x$593.88 =$5,938.80. (b) Company's Quarterly Payments, if any, shall be paid to the City without notice, demand, deduction or setoff on or before the fifteenth (15th) day of the month after the end of each Quarter during the Repayment Period and for one month thereafter at the office of the Director of 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 percent(8%) per annum ("Default Interest") until paid. (c) Within fifteen (15) days after the end of each Quarter after the Employment Commitment Date and for one calendar month after the Repayment Period, Company will submit to City's Director of Finance Company's statements showing the Quarterly Employees for the preceding Quarter and their annual salary, together with 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 Company's employment and salaries, City shall have access to Company's records relating to Company's employees employed at the Facility. (d) Notwithstanding anything contained in this Paragraph 4 to the contrary, if Company defaults in its Employment Commitment and Company's 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, the entire balance of Company's Repayment Obligation shall become due and payable, without notice, notice being hereby expressly waived, together with Default Interest from the date of default, and for such purpose, the entire balance of Company's Repayment Obligation shall be an amount equal to 70 times $593.88 multiplied by the remaining Quarters of the Repayment Period from and after the default date plus the amount of Company's unpaid Quarterly Payments, if any, but in no event more than the amount of City Funds advanced by City under paragraph 2 hereof plus Default Interest as herein provided. Except as may be agreed by the City Council in its/their sole discretion (as contemplated under 3 4811.8237-5446.6 paragraph 6(b) hereof), 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. 5. Company's Repayment Obligation under this Agreement, if any is owed, shall be deemed to be a debt of Company payable to City until Company performs and discharges its obligations hereunder including its Employment Commitment contained in Paragraph 3 and its Repayment Obligation contained in Paragraph 4. Company's obligations under this Agreement, including its Employment Commitment and Repayment Obligation, shall be secured by an appropriate Deed of Trust to real estate owned by the Company. Contemporaneously with the execution of this Agreement, Company shall execute and deliver to City, a second mortgage security interest in the Facility, evidenced by a First Amendment to Deed of Trust, all in form and content approved by City's Attorney (the "First Amendment to Deed of Trust"). 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 twenty (20) 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. 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 a 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 the prevailing party its costs and reasonable attorney fees. Exclusive venue for any such litigation shall be Pueblo County, Colorado. All such litigation shall be filed in the District Court, County of Pueblo, State of Colorado and each party submits to the jurisdiction of such District Court. To the extent allowed by law, each party waives its right to a jury trial. 8. 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 4 4811-8237-5446.6 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. 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, 200 S. Main Street, Pueblo, CO 81003 with a copy to City Attorney, 1 City Hall Place, Pueblo, Colorado 81003, or (b) if to the Company, 350 Keeler Parkway, Pueblo, Colorado, 81001, attention Adam Carroll. or to such other person or address as either party shall specify in written notice given to the other party pursuant to the provisions of this paragraph 10. 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 for assignments to entities controlling, controlled by or under common control of the Company, which the Company can do solely upon providing written notice to the City) without the express written consent of the City, which consent may be arbitrarily withheld, conditioned or delayed. Any assignment or attempted assignment of this Agreement by Company without such consent shall be null and void. However, if Company proposes to assign this Agreement to a purchaser of its business, the transaction is an arms-length transaction, the purchaser assumes and agrees to perform Company's obligations under this Agreement, and the assignment shall not waive, release or discharge Guarantor's obligations under the Continuing Guaranty, then, in such events, the assignment may be made with the express written consent of the City, which consent may not be unreasonably withheld. The City shall have the right to determine that said proposed purchaser is credit worthy, has sufficient business experience in the retail sector, and is capable of performing Company's obligations under this Agreement. 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 legally binding obligation of Company enforceable against Company in accordance with its terms. 13. Company represents and warrants that 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 or City's advancement of City Funds to Company hereunder. For breach or violation of this warranty, City shall have the right to terminate this Agreement, or recover the full amount of such commission, percentage, contingent fee or other remuneration, 5 4811-8237-5446.6 and/or to seek such other remedies legally available to City,which remedies shall be cumulative. 14. In no event shall City, its officers, agents or employees be liable to Company for damages, including without limitation, compensatory, punitive, indirect, special or consequential damages, resulting from or arising out of or related to this Agreement or the performance or breach thereof by City or the failure or-delay of City in the performance of any covenant or provision under this Agreement on its part to be performed. In consideration of City entering into this Agreement, Company hereby waives and discharges City, 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 amount of City Funds actually advanced or paid by City to or for the benefit of Company pursuant to paragraph 2 hereof. Notwithstanding the above, in the event of breach of this Agreement by the City, Company shall have the right to request specific performance of this Agreement by the City, but not damages. 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 venturers or partners 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 their successors and permitted assigns, 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. Company hereby assumes and agrees to pay the obligations of Big R of Lamar, Inc. in the Agreement between the City and Big R of Lamar, Inc. dated October 1, 2009. Company further agrees to be bound by all conditions and covenants in the Agreement between the City and Big R of Lamar, Inc. dated October 1, 2009. Executed at Pueblo, Colorado,the day and year first above written. [ SEAL] Pueblo, a Municipal Corporation 6 4811-8237.5446.6 [S,E A 1.—]; - Pueblo,a Mu •_- _'.rla. :tion • Attest:'".... I' nit` By - •! +►, ... .-y:.«.- Cy.Clerk +e City Council [SEAL] BIG R HOLDI GS, INC., a Colorado c ration 41110.`. , t By /,- --- Name: Karla Blain Name: Bryce David Blain Title: Secretary Title: President 7 4811.8237-5446,7 EXHIBIT B 2016 Agreement See attached. 8 AGREEMENT THIS AGREEMENT("2016 Agreement") entered into as of November 28, 2016 between Pueblo, a municipal corporation (the "City") and Big R Holdings, Inc., a Colorado corporation (the "Company") and Pueblo Development Foundation, a Colorado nonprofit corporation ("PDF").The City and Company and PDF may be individually referred to herein as "Party"or collectively referred to as"Parties." WHEREAS, the City granted the Company economic incentives to open and operate a distribution center and administrative offices at the Pueblo Memorial Airport Industrial Park pursuant to an agreement dated December 23, 2013 ("2013 Agreement");and WHEREAS, the Parties desire that the 2013 Agreement remain in full force and effect according to its terms and conditions;and WHEREAS, Company has expressed a willingness to expand and relocate its distribution center and its business administration offices within the Pueblo Memorial Airport Industrial Park and in furtherance thereof has through the Pueblo Economic Development Corporation made application for additional funds from the City, and WHEREAS, in connection with its application, the Company has committed that (i) either it or Properties shall invest not less than One Million Eight Hundred Forty Thousand Dollars ($1,840,000) in fixed assets and other investment in a relocated distribution facility and administrative offices within the Pueblo Memorial Airport Industrial Park and (ii)the Company shall provide the employment described in Section 4 of this Agreement. WHEREAS, the City has approved such application and will make additional funds available to 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: "Effective Date"means the date of approval of this Agreement by City Council of City. "Employment Commitment Date" means January 1,2020. "Facility" means the distribution center and business administration offices located at the Pueblo Memorial Airport Industrial Park, having a street address of 1 McDonnell Douglas St., Pueblo, Colorado,81001. "Full-Time Employee"means a person who actually performs work at the Facility for not less than thirty-five (35) hours per week whether employed by Company or by an outside entity acting as an agency to provide Full-Time Employees for Company. 1 EXHIBIT 1 E3 "Quarter"means three consecutive calendar months commencing January 1,April 1, July 1 and October 1 of each calendar year. "Quarterly Employees" means the sum of the aggregate number of Full-Time Employees on each business day of a Quarter, divided by the sum of the business days in such Quarter. "Salary" means direct compensation payable to an employee including vacation pay, bonuses, overtime compensation and the amount of any pretax benefits paid by the employee under flexible spending or other qualified plans. The term does not include employer paid payroll taxes nor benefits such as employer paid health insurance. 2. If Company is not in default under this Agreement,City will advance to or for the benefit of Company funds in the amount of Seven Million Dollars ($7,000,000.00) (the "City Funds"),subject to and contingent upon the following conditions and covenants which Company agrees to perform and comply with: • Pay to the Company's affiliate, Big R Properties, LLC,a Colorado limited liability company ("Properties"), the sum of Three Million Dollars ($3,000,000) for the purchase of the distribution center and business administration offices located at the Pueblo Memorial Airport Industrial Park, having a street address of 350 Keeler Parkway, Pueblo, CO 81001 ("Keeler Property"); .. Disburse to PDF, for the benefit of Company, funds in an amount not to exceed Four Million Dollars ($4,000,000) for the actual costs and expenses of remodeling and renovating the Facility, including the costs of design,engineering and construction services. The disbursement for the purchase of the Keeler Property and remodeling and renovation of the Facility are hereinafter referred to as the "City Funds." City, PDF and the Company agree to perform and comply with the following conditions: (a)(i) Purchase of the Keeler Property. The City agrees to disburse the above funds after submission of the Company's written request for payment, if such request is accompanied by any supporting documentation as required herein. The purchase of the Keeler Property shall be governed by the Contract to Buy and Sell Real Estate,pertaining to the Keeler Property, of even date herewith.The"closing"of the sale of the Keeler Property by Properties to the City shall take place within thirty (30) days of the issuance of a Certificate of Occupancy for the Facility following the remodeling and renovation of the Facility as set forth herein and the seller's obligation to close on such sale is conditioned upon the mutual closing of the transaction referenced in the following paragraph. (ii) Sale of the Facility.City agrees to sell the Facility to Properties in accordance with the terms and conditions of the Contract to Buy and Sell Real Estate pertaining to the Facility of even date herewith.Properties will lease the Facility to the Company for use by the Company as the Company's business administration offices and distribution center. The "closing" of the sale of the Facility by City to Properties shall take place within thirty(30)days 2 } of the issuance of a Certificate of Occupancy for the Facility following the remodeling and renovation of the Facility as set forth herein and simultaneously with the closing of the transaction referenced in the preceding paragraph. (iii) Properties Promissory Note. At the closing of real estate transactions referenced in clauses(ii)and (iii)above, Properties shall deliver to City a promissory note in the principal amount of Six Million Eight Hundred Fifty Six Thousand Dollars($6,856,000.00)with an adjustable interest rate thereon computed at the"prime rate"of Wells Fargo Bank,N.A.plus one(1)percent.The promissory note shall obligate Properties to make monthly"interest only" payments for its ten year term.At the conclusion of the ten year term,the entire principal balance shall be due and payable by Properties to the City.The interest rate shall be adjusted annually to reflect changes in the"prime rate"of Wells Fargo Bank,N.A.commencing on the first annual anniversary date of the promissory note.The promissory note shall be secured by a first-priority Deed of Trust to the Facility from Properties. (b) fianund.Biddi,ng. (i) The Company and Properties, in consultation with PDF shall determine their needs for remodeling and renovation of the Property, and PDF (in consultation with Company and/or Properties) shall cause plans and specifications to be prepared for the work. The plans and specifications shall be filed with the City, but work shall not be performed until and unless the same are approved by City, which approval shall not be unreasonably withheld, conditioned or delayed. Additionally, PDF shall obtain the written approval of the Company prior to any presentation of the plans and specifications to the City for the City's approval. The remodeling and renovation of the Property in accordance with the approved plans and specifications is hereafter referred to as the"Project". (ii) All construction contracts for the work contemplated by the approved plans and specifications ("Construction Contracts") shall be awarded by competitive bidding. PDF shall invite general contractors holding Building Contractors-A (General Unlimited) licenses having their principal place of business in the City or County of Pueblo who are qualified and experienced to perform construction work for the Project("Local Contractors") to submit bids. PDF may invite other qualified general contractors with their principal place of business outside of Pueblo County, Colorado to submit bids. PDF shall assure that the same scope of work to be bid is timely furnished to each general contractor invited to bid. For"design- build" or other contractual arrangements, this requirement may be accomplished by a pre-bid conference or other acceptable competitive bidding procedure which allows Local Contractors a reasonable opportunity to participate in the competitive bidding procedures. All bids will be received and opened publicly. PDF will use its best efforts in good faith to award the construction contract to the lowest qualified bidder. A similar provision with respect to local subcontractors and suppliers shall be included as part of the construction contract with the general contractor who shall use its best efforts in good faith to engage local subcontractors and suppliers for such construction. If the Company, its employees or agents had negotiated with a general contractor, subcontractor or supplier with respect to the Project prior to competitive bidding, neither the Company nor PDF shall not enter into any Construction Contract with such general contractor, subcontractor or supplier for the Project. "Negotiate" means to discuss, confer upon, or arrange the terms and conditions of a Construction Contract including, without limitation, obtaining estimates of construction costs. After award, PDF shall enter into one or 3 • more Construction Contracts for the work and cause the remodeling and renovation to be expeditiously completed, and PDF shall timely pay all contractors for work upon the Facility. PDF shall not allow nor suffer any mechanics liens to be filed upon the Facility and in the event any such liens are filed, shall cause same to be promptly removed. (iii) City Funds will be disbursed by City to PDF solely for the costs of design, renovation and remodeling of the Property in accordance with the plans and specifications approved by City. In the event the cost of the design, remodeling and renovation exceeds $4,000,000 of available City Funds, such costs shall be promptly paid by Company or Properties and not by City. (c) Company shall file in the office of the City Clerk copies of the following: (i)a certificate or other evidence of authority to transact business in the State of Colorado issued by the Colorado Secretary of State for each of the Company and Properties, together with certificates of good standing issued by the governmental jurisdiction of each of Company's and Properties' formation, (ii)certified copies of the resolutions of the governing board of Company (or managers, as it relates to Properties) approving (A)this Agreement; (B) the Contract to Buy and Sell Real Estate for the Facility; and (C) the Contract to Buy and Sell Real Estate for the Keeler Property,and authorizing its officers or manager to execute and deliver said documents in the name of Company or Properties,as applicable, and (iii) (A)this Agreement; (B)the Contract to Buy and Sell Real Estate for the Facility; and(C)the Contract to Buy and Sell Real Estate for the Keeler Property executed by authorized officers of Company(or the manager of Properties). The date of the last to occur of the filings required under (i), (ii) and (iii) of this Section 2(c) shall be referred to herein as "Closing". If the Closing does not occur on or before March 1, 2017, or such later date as Company and City shall mutually agree, the Company and the City, each, at its sole option, may terminate this Agreement and the Contracts to Buy and Sell Real Estate referenced in clauses (B) and (C) above, and City and Company shall thereafter be released and discharged from all obligations hereunder. (d) As conditions precedent to the disbursement of City Funds for the renovation and remodeling of the Facility (i)Company and PDF shall have obtained City's written approval of the plans and specifications for the renovation and remodeling of the Facility, which shall not be unreasonably withheld, conditioned or delayed; (ii)Company shall file with the City Clerk the documents described in subsection(c) above; and (iii)PDF shall file with the City's Director of Finance periodic written requests for payment, certified to be true and correct by an officer of Company or PDF, representing 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 remodeling the Facility, identifying the specific work for which payment is sought, including paid invoices therefor and certificates of delivery and installation in the Facility. PDF shall not submit requests for payment which exceed in the aggregate$4,000,000. 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 hereunder is the creation of jobs. Therefore, Company represents, covenants, and agrees that Company will on and after the Employment Commitment Date continuously conduct its business operations at the Facility and employ not less than thirty-three (33) new Full-Time Employees at the Facility whose annual compensation shall average at least $51,452 in Salary and at least $64,315 including benefits. Company will use good faith efforts in accordance with its sound business 4 practices to employ residents of the City of Pueblo as Full-Time Employees including, without limitation, engaging in reasonable programs and posting of employment openings in the City of Pueblo (collectively the "Employment Commitment"). The thirty-three (33) Full-Time Employees must be new employees employed at the Facility, i.e. in addition to the number of Full Time Employees employed by the Company as of the date of this Agreement. 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, 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 new Quarterly Employees less than thirty-three (33) Full-Time Employees employed at the Facility by Company multiplied by $1,616.88 (the "Company's Quarterly Payments"). For example, if for the second Quarter of the third year after the Employment Commitment Date such new Quarterly Employees is 30,the amount payable by Company to City on or before the fifteenth (15th)day of the next calendar month would be(33 - 30)x$1,616.88=$4,850.64. (b) Company's Quarterly Payments, if any, shall be paid to the City without notice, demand, deduction or setoff on or before the fifteenth (15th) day of the month after the end of each Quarter during the Repayment Period and for one month thereafter at the office of the Director of 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 percent(8%)per annum ("Default Interest")until paid. (c) Within fifteen (15) days after the end of each Quarter after the Employment Commitment Date and for one calendar month after the Repayment Period, Company will submit to City's Director of Finance Company's statements showing the Quarterly Employees for the preceding Quarter and their annual Salary,together with 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 Company's employment and salaries, City shall have access to Company's records relating to Company's employees employed at the Facility. (d) Notwithstanding anything contained in this Paragraph 4 to the contrary, if Company defaults in its Employment Commitment and Company's 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, the entire balance of Company's Repayment Obligation shall become due and payable, without notice, notice being hereby expressly waived, together with Default Interest from the date of default, and for such purpose, the entire balance of Company's Repayment Obligation shall be an amount equal to 33 times$1,616.88 multiplied by the remaining Quarters of the Repayment Period from and after the default date plus the amount of Company's unpaid Quarterly Payments, if any, but in no event more than $1,494,000 plus Default Interest as herein provided Except as may be agreed by the City Council in its/their sole 5 discretion (as contemplated under paragraph 6(b) hereof), 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. 5. Company's Repayment Obligation under this Agreement, if any is owed, shall be deemed to be a debt of Company payable to City until Company performs and discharges its obligations hereunder including its Employment Commitment contained in Paragraph 3 and its Repayment Obligation contained in Paragraph 4. Company's obligations under this Agreement, including its Employment Commitment and Repayment Obligation, shall be secured by a first- in-priority Deed of Trust to the Facility. 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 twenty (20) 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. 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 a 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 the prevailing party its costs and reasonable attorney fees. Exclusive venue for any such litigation shall be Pueblo County, Colorado. All such litigation shall be filed in the District Court, County of Pueblo, State of Colorado and each party submits to the jurisdiction of such District Court. To the extent allowed by law,each party hereby waives its right to a jury trial. 8. 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 and PDF. 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 6 a waiver of such breach. 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, 2nd Floor, Pueblo, CO 81003 with a copy,to City Attorney, 1 City Hall Place, 3`d Floor, Pueblo, Colorado 81003,or (b) if to the Company, 350 Keeler Parkway, Pueblo, Colorado, 81001, attention Adam Carroll, with a copy to Maynes, Bradford, Shipps & Sheftel, LLP, Attn: Sherri Way, 1331 Seventeenth Street, Suite 410, Denver,Colorado,80202,or (c) if to the PDF,301 N.Main Street, Suite 210,Pueblo,Colorado 81003. or to such other person or address as either party shall specify in written notice given to the other party pursuant to the provisions of this Paragraph 10. 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. Company may not assign this Agreement or any interest herein (except for assignments to entities controlling, controlled by or under common control of the Company,which the Company can do solely upon providing written notice to the City)without the express written consent of the City, which consent may be arbitrarily withheld,conditioned or delayed. PDF may not assign this Agreement or any interest herein without the express written consent of the City, which consent may be arbitrarily withheld, conditioned or delayed. Any assignment or attempted assignment of this Agreement by Company or PDF without such consent shall be null and void. However, if Company proposed to assign this Agreement to a purchaser of its business, the transaction is an arms- length transaction, the purchaser assumes and agrees to perform Company's obligations under this Agreement, then in such events,the assignment may be made with the express consent of the City, which consent may not be unreasonably withheld. The City shall have the right to determine that said proposed purchaser is creditworthy, has sufficient business experience in the retail sector,and is capable of performing Company's obligations under this Agreement. 12. The persons signing this Agreement in the name of and on behalf of Company and PDF represent and warrant that they and Company and PDF have the requisite power and authority to enter into, execute, and deliver this Agreement, and that this Agreement is a valid legally binding obligation of Company and PDF enforceable in accordance with its terms. 13. Company represents and warrants that 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 or City's advancement of City Funds hereunder. For breach or violation of this warranty, City shall have the right to terminate this Agreement, or recover the 7 full amount of such commission, percentage,contingent fee or other remuneration,and/or to seek such other remedies legally available to City,which remedies shall be cumulative. 14. In no event shall any Party, its officers, agents or employees (collectively, the "First Party") be liable to any other Party for damages, including without limitation, compensatory, punitive, indirect, special or consequential damages, resulting from or arising out of or related to this Agreement or the performance or breach thereof by the First Party or the failure or delay of any Party other than the First 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 Parties hereby waive and discharge one another, and each of their 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 amount of City Funds actually advanced or paid by City to or for the benefit of Company pursuant to Paragraph 2 hereof. 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 venturers or partners 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 their successors and permitted assigns, 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. Notwithstanding this 2016 Agreement, the terms and conditions of the 2013 Agreement between the City and the Company shall remain in full force and effect in accordance with its terms. REST OF THIS PAGE LEFT INTENTIONALLY BLANK SIGNATURE PAGE TO FOLLOW S Executed at Pueblo, Colorado,the day and year first above written. [ SEAL] Pueblo, a Municipal Corporation Attest: By City Clerk President of the City Council [ SEAL ] BIG R HOLDINGS, INC., a Colorado corporation Attest: By Name: Karla Blain Name: Bryce David Blain, Jr. Title: Secretary Title: President PUEBLO DEVELOPMENT FOUNDATION A Colorado Non-profit Corporation By: ,�', ''� Robert L. Root, President Attest:. •cretary 9 Executed at Pueblo, Colorado,the day and year first above written. [ S E AL.] Pueblo r 'oi== ,0•:.:,'. Attest: � 4. 1� By City rk President of the City Council [ SEAL] BIG R ! DINGS, INC., a Color,•o c.rporation A 4-41911111 By Name: Karla B -rn Name: Bryce David Blain,Jr. Title: Secretary Title: President PUEBLO DEVELOPMENT FOUNDATION A Colorado Non-profit Corporation By: Robert L. Root, President Attest: Secretary 9 EXHIBIT C Permitted Exceptions Taxes and assessments for the year 2018 and subsequent years. Water rights, claims or title to water. Title to all minerals within and underlying the premises, together with all mining and drilling rights and other rights, privileges and other immunities relating thereto. The Company makes no representation as to the present ownership of any such interests. There may be leases, grants, exceptions or reservations of interests that are not listed. Any and all existing roads, highways, ditches, canals, reservoirs, wells, railroad tracks, pipelines, water lines, power lines, telephone lines, and any and all unrecorded rights of way or easements therefore. Easement and Right of Way Agreement in favor of Colorado Eastern Telephone and Telegraph Co. recorded May 7, 1908 in Book 321 at Page 477 as Reception No. 158891. Partial Release recorded September 30, 2011 as Reception No. 1887019. License Agreement granted to The Colorado Postal - Cable Company recorded December 30, 1913 in Book 390at Page 188 as Reception No. 202661. Utility Easement in favor of Colorado Postal Telegraph-Cable Company recorded January 21, 1938 in Book 849 at Page 247 as Reception No. 584415. Quit Claim Deed in favor of United States America for the purpose of a utility easement recorded December 11, 1942 in Book 940 at Page 63 as Reception No. 694374. Easements, restrictions, reservations covenants, conditions, provisions and agreements set forth and more fully described in the Quit Claim Deed recorded July 31, 1948 in Book 1074 at Page 87 as Reception No. 189072. Easement to Colorado Interstate Gas Company, a Delaware corporation, it's successors or assigns, recorded February 18, 1950 in Book 1116 at Page 427 as Reception No. 859157. If found to intersect the subject property. Reservation as contained in Deed of Release from The United States of America, acting by and through the Administrator of Civil Aeronautics to The City of Pueblo, a bod politic under the laws of the State of Colorado, as recorded September 20, 1956 in Book 1309 at Page 146 as Reception No. 24198. Reservation as contained in the Release from The United States of America, acting by the Federal Aviation Administration to The City of Pueblo, as body corporate and politic, under the laws of the State of Colorado, as recorded September 25, 1970 in Book 1678 at Page 155 as Reception No. 397115, and in Deed recorded September 25, 1970 in Book 1678 at Page 159 as Reception No. 397116. Pueblo County Board of County Commissions Resolution No. 86-Z-60 approving plat for Subdivision Exemption No. 86-9 recorded October 30, 1986 in Book 2314 at Page 01 as Reception No. 815855. All matters as depicted on the filed plat for Subdivision Exemption No. 86-9 recorded October 30, 1986 in Map Book S at Page 226 as Reception No. 815856. 9 Pueblo County Board of County Commissioners Resolution No. 87-Z-8 approving the plat Subdivision Exemption No. 87-1 recorded March 16, 1987 in Book 2337 at Page 692 as Reception No. 828001. All matters as depicted on the filed plat for Subdivision Exemption No. 87-1 recorded March 16, 1987 in Map Book S at Page 230 as Reception No. 828002. Easements, restrictions, reservations covenants, conditions, provisions and agreements set forth and more fully described in the Warranty Deed recorded July 25, 1988 in Book 2406 at Page 361 as Reception No. 867863. The effect of Annexation into the City of Pueblo as evidenced by Plat recorded April 6, 1990 in Book 2492 at Page 622 as Reception No. 915966. Easements, restrictions, reservations covenants, conditions, provisions and agreements set forth and more fully described in the Warranty Deed recorded June 6, 1994 in Book 2737 at Page 560 as Reception No. 1046763. Matters as depicted on the plat for Pueblo Memorial Airport Industrial Park Subdivision recorded October 11, 1995 in Book 2836 at Page 665 as Reception No. 1096136. Note: Ratification of Plat recorded October 11, 1995 in Book 2836 at Page 683 as Reception No. 1096149. Terms and Conditions as disclosed in the Subdivision Improvements Agreement for Pueblo Memorial Airport Industrial Park Subdivision recorded October 11, 1995 in Book 2836 at Page 705 as Reception No. 1096167. Easements, restrictions, reservations covenants, conditions, provisions and agreements set forth and more fully described in the Warranty Deed recorded August 25, 2006 as Reception No. 1690590. The affect, if any, of Assessments that may be levied by the Pueblo Conservancy District, per Notice of an Order Approving the Amended Official Plan for the Pueblo Conservancy District, recorded August 1, 2007 as Reception No. 1736292 and Map recorded December 31, 2009 as Reception No. 1829096. Order for Appointment of Commissioners to Serve as Board of Appraisers and Order Amending Previous Order recorded October 9, 2012 as Reception No. 1921465. Pueblo County Board of County Commissioners Resolution No. P&D 18-004 approving the change of address recorded January 24, 2018 as Reception No. 2094810. 10 Reception 2096974 02/15/2018 03:48:36 PM FIRST AMENDMENT TO DEED OF TRUST THIS FIRST AMENDMENT TO DEED OF TRUST ("First Amendment"), with an effective date of February 12, 2018, is made between Big R Properties, LLC, a Colorado limited liability company, whose address is 100 Big R Street (or, alternatively 1 McDonnell Douglas Street), Pueblo, CO 81001 hereinafter referred to as ("Grantor"), and the Public Trustee of the County of Pueblo, State of Colorado hereinafter referred to as ("Public Trustee") for the benefit of the City of Pueblo, a municipal corporation whose address is One City Hall Place, Pueblo, CO 81003 ("City of Pueblo" or "beneficiary"), and amends that certain Deed of Trust dated effective as of February 1, 2018 executed by Grantor for the benefit of the City of Pueblo and recorded at Reception Number 2095923 in the Records of the County of Pueblo, State of Colorado on February 5, 2018 (the "Deed of Trust"). Terms not otherwise defined in this First Amendment to Deed of Trust shall have the meanings assigned to them in the Deed of Trust. WITNESSETH THAT, WHEREAS, pursuant to a Resolution adopted by the City of Pueblo on February 12, 2018, the City of Pueblo agreed to make a loan to Grantor in the principal amount of$750,000.00 (the "$750,000 Loan"); AND WHEREAS, the $750,000 Loan is evidenced by a promissory note dated as of February 12, 2018 made by Grantor to the City of Pueblo in the principal amount of $750,000 (the "02-12-18 Note") AND WHEREAS, the Grantor is desirous of securing performance of its payment obligations under the 02-12-18 Note and payment of the indebtedness and interest thereon as specified therein (the "02-12-18 Repayment Obligations"). NOW THEREFORE, in consideration of the premises and for the purpose aforesaid, the Grantor does by this First Amendment to Deed of Trust add the 02-12-18 Repayment Obligations to the existing obligations secured by the Property and the Deed of Trust, such that from and after the date hereof until the full payment of Grantor's payment obligations under the 02-12-18 Note as aforesaid: In addition to any other defaults set forth in the Deed of Trust, in the case of a default by Grantor of Grantor's payment obligations under the 02-12-18 Note (including payment of the indebtedness as specified therein or of any interest thereon according to the tenor and effect of said Note), which payment default is not cured within sixty (60) days after written notice specifying the default is given by the City of Pueblo to Grantor, the beneficiary hereunder or the legal holder of the indebtedness secured hereby may declare a violation of any of the covenants contained hereunder or under the Deed of Trust and, subject to any statutory rights of Grantor, may elect to take any of the actions set forth herein or in the Deed of Trust as the same are available to the beneficiary or the legal holder of the indebtedness secured hereby including, subject to any statutory rights of Grantor, the election to advertise said property for sale and demand such sale 1 2096974 02/15/2018 03:48'.36 PM Page: 2 of 26 R 138.00 D 0.00 T 138.00 Gilbert Ortiz Clerk/Recorder, Pueblo County, Co • 11111 Fa PM, MIAMI 04I%1.0111.4 Ill 111 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 four successive weeks) in some newspaper of general circulation at that time published in the county or counties in which said property is located. A copy of such notice shall be mailed to all persons entitled to receive notice as 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 (a "Certificate of Purchase"). 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 days after 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 any amounts due pursuant to the 2013 Agreement signed Big R Holdings, the 2016 Agreement signed Big R Holdings, under the 02-01-18 Note signed by Grantor, or under the 02-12-18 Note signed by Grantor, as applicable, and all moneys advanced by such beneficiary for insurance, taxes and assessments, with interest thereon at eight 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 City of Pueblo 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 hereby covenants that (a) the warranties made to the beneficiary under the Deed of Trust remain true as of the date of this First Amendment to Deed of Trust; (b) the Grantor shall timely make all payments of (i) taxes and assessments levied on the Property; (ii) any and all amounts due on account of principal and interest or other sums on any junior encumbrances, if any; and (iii) will keep all improvements that may be on said Real Property insured in accordance with the requirements for insurance set forth in the Deed of Trust. IN THE CASE OF ANY DEFAULT by the Grantor in Grantor's payment obligations under the 02-12-18 Note and payment of the indebtedness as specified therein, or in the payment of any interest thereon, or of a breach or violation of any of 2 the covenants or agreements herein by the Grantor, any of which defaults is not cured within sixty (60) days after written notice specifying the default is given by the City of Pueblo to Grantor, then the whole of said obligations hereby secured and the interest thereon to the time of the sale may at once, at the option of the legal holder thereof, 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 a reasonable amount for services in the supervision of said foreclosure proceedings shall be allowed by the Public Trustee as a 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. ANYTHING ELSE IN THIS FIRST AMENDMENT TO DEED OF TRUST TO THE CONTRARY NOTWITHSTANDING, the Deed of Trust shall remain in full force and effect in accordance with its terms, except as expressly modified by the terms of this First Amendment to Deed of Trust. REST OF THIS PAGE LEFT INTENTIONALLY BLANK SIGNATURE PAGE TO FOLLOW 2096974 02/15/2018 03:48:36 PM Pagge: 3 f 26 138. Gilbert Ortoiz ClerRk/R00ecorderD 0.00 T 138.00 . Pueblo County, Co 1111 lMrr r11,�Zi�li f 'c14�'.Pkti.i1 ".f I ,Rhf',I kaki III II 3 Executed to be effective the date first above written. GRANTOR: Big R Properties, LLC By: �� Y / Bryce David Blain, Jr.,;-1V-1 _,anager STATE OF COLORADO ) ss. COUNTY OF PUEBLO ) The foregoing instrument was acknowledged before me this 42 day of Aggq,gey 2018, by Bryce David Blain, Jr., a Manager of Big R Properties, LLC, a Colorado limited liability company. My commission expires: Z 0o ir3 Witness my hand and official seal: 4%1 NOTARY PUBLIC IN AND FOR THE STATE OF COLORADO MICHAEL B.GARNISH NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20144024286 MY COMMISSION EXPIRES JUNE 18,2018 2096974 02/15/2018 03:48:36 PM Page: 40 of R 138.00 D 0.00 T 138.00 Gilbert Ortiz7;lerk/Recorder Pueblo Conty, co ■111�1r.t/2 "���1�1I41%1P, 4lic: �1pftwarlyi, •I III 4 EXHIBIT A 2013 Agreement See attached. 2096974 02/15/2018 03:48:36 PM Page: 5 of 26 R 138.00 D 0.00 T 138.00 Gilbert Ortiz Clerk/Recorder. Pueblo County, Co VIII [MI6' 116141; 11,111,Iii'a' tiK'evW1',tyi1I III 5 2096974 02/15/2018 03:48:36 PM Page: 6 6 R . 0 0 T8.00 Gilbert Ortofiz2Clerk/R138ecorder00D, Pueblo Count13y, Co VIII RP'rkr+fL40111 ill?Ai iVkaMYL�h AGREEMENT THIS AGREEMENT entered into as of December 23, 2013 between Pueblo, a municipal corporation(the "City") and Big R Holdings, Inc., a Colorado corporation (the "Company"). WHEREAS, Company has expressed a willingness to expand a distribution center and its business administration offices within the City of Pueblo or the Pueblo Memorial Airport Industrial Park, and in furtherance thereof has through the Pueblo Economic Development Corporation made application for funds with the City, and WHEREAS, the City has approved such application and will make funds available to 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: "Continuing Guaranty" means the Continuing Guaranty attached hereto. "Employment Commitment Date" means January 1, 2017. "Equipment" means new business personal property and trade fixtures (including, but not limited to forklifts, trucks, trailers, pickups, fixtures, racking, computers, office furniture, fax machines, scanners, copiers, and other tangible personal property installed, kept, maintained and used by Company in or in conjunction with the Facility, or a new facility, having an exhaustible useful life of more than five (5) years which can be determined or estimated with reasonable accuracy. "Equipment" does not mean computer software or computer software development costs. "Equipment" also includes the cost of building remodeling, including but not limited to electrical, plumbing, lighting, heating, cooling and other building improvements, new offices, docks, doors, paint and other direct improvements to the Facility. "Facility" means the distribution center and business administration offices located at the Pueblo Memorial Airport Industrial Park, having a street address of 350 Keeler Parkway, Pueblo, Colorado, 81001, or such other facility located within the City of Pueblo or the Pueblo Memorial Airport Industrial Park, wherein Company will conduct its business operations. "Full-Time Employee" means a person who actually performs work at the Facility for not less than thirty-five (35) hours per week whether employed by Company or by an outside entity acting as an agency to provide Full-Time Employees for Company. "Quarter" means three consecutive calendar months commencing January 1, April 1, July 1 and October 1 of each calendar year. EXHIBIT 1 A 4811-8237-5446.6 2096974 02/15/2018 03:48:36 PM Page: 7 of 26 R 138.00 D 0.00 T 138.00 Gilbert Ortiz Clerk/Recorder Pueblo County. Co 1111 h011111;i'M'NIAIVillimi li 'Ii. ', �ail �YI�'� 11111 "Quarterly Employees" means the sum of the aggregate number of Full-Time Employees on each business day of a Quarter, divided by the sum of the business days in such Quarter. 2. If Company is not in default under this Agreement, City will advance to or for the benefit of Company funds in the amount of $600,000.00 (the "City Funds"), subject to and contingent upon the following conditions and covenants which Company agrees to perform and comply with: (a) City Funds will be advanced by City to Company for the expansion of or improvements to its Facility or a new facility or for the acquisition of Equipment by Company at fair market value from a reputable vendor in an arms-length transaction. Acquisition of equipment from any person or entity related to or a subsidiary of Company is not an arms-length transaction. (b) Company shall file in the office of the City Clerk copies of the following: (i) 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(s) of the governing board of Company approving this Agreement and the First Amendment to Deed of Trust, and authorizing its officers to execute and deliver this Agreement and the First Amendment to Deed of Trust and related documents in the name of Company, (iii) executed Continuing Guaranty, and (iv) evidence reasonably satisfactory to City that Company will expand business operations at the Facility. 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 March 31, 2014, 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 a conditions precedent to the disbursement of City Funds for the acquisition of Equipment or remodeling or construction costs, Company shall file (i) with the City Clerk the documents described in Paragraph (b) above, and (ii) with the 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 or remodeling or for Equipment, identifying the construction or remodeling or Equipment for which payment is sought, including invoices therefore and certificates that such construction has occurred or the delivery and installation of Equipment in the Facility, together with documentation, satisfactory to City, establishing such Equipment has an exhaustible useful life of five (5) or more years. All City Funds, if any, received by Company shall be deposited in a separate account and held in trust by Company for the sole and only purpose of paying for construction or remodeling or the purchase of Equipment. 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 Company will on and after the Employment Commitment Date continuously conduct its business operations at the Facility and employ not less than seventy (70) Full-Time Employees at the Facility whose annual compensation shall average at least $48,416.00. Company will use good 2 4811-8237-3446.6 2096974 02/15/2018 03:48:36 PM P• age: 8 of 26 R 138.00 D 0.00 T 138.00 Gilbert Ortiz Clerk/Recorder. Pueblo County Co .111 ��'FA''"1i4,rigerfAie 11'6 11111 faith efforts in accordance with its sound business practices to employ residents of the City of Pueblo as Full-Time Employees including, without limitation, engaging in reasonable programs and posting of employment openings in the City of Pueblo (collectively the "Employment Commitment"). 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, 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 seventy (70) Full-Time Employees employed at the Facility by Company multiplied by $593.88 (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 60, the amount payable by Company to City on or before the fifteenth (15th) day of the next calendar month would be (70 - 60)x $593.88 =$5,938.80. (b) Company's Quarterly Payments, if any, shall be paid to the City without notice, demand, deduction or setoff on or before the fifteenth (15th) day of the month after the end of each Quarter during the Repayment Period and for one month thereafter at the office of the Director of 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 percent (8%) per annum ("Default Interest") until paid. (c) Within fifteen (15) days after the end of each Quarter after the Employment Commitment Date and for one calendar month after the Repayment Period, Company will submit to City's Director of Finance Company's statements showing the Quarterly Employees for the preceding Quarter and their annual salary, together with 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 Company's employment and salaries, City shall have access to Company's records relating to Company's employees employed at the Facility. (d) Notwithstanding anything contained in this Paragraph 4 to the contrary, if Company defaults in its Employment Commitment and Company's 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, the entire balance of Company's Repayment Obligation shall become due and payable, without notice, notice being hereby expressly waived, together with Default Interest from the date of default, and for such purpose, the entire balance of Company's Repayment Obligation shall be an amount equal to 70 times $593.88 multiplied by the remaining Quarters of the Repayment Period from and after the default date plus the amount of Company's unpaid Quarterly Payments, if any, but in no event more than the amount of City Funds advanced by City under paragraph 2 hereof plus Default Interest as herein provided. Except as may be agreed by the City Council in its/their sole discretion (as contemplated under 3 4811-8237-5446.6 2096974 02/15/2018 03:48:36 PM Page: 9 of 26 R 138.00 D 0.00 T 138.00 Gilbert Ortiz Clerk/Recorder, Pueblo County; Co uiII .r�" H'iii'k VI ',' 11111 paragraph 6(b) hereof), 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. 5. Company's Repayment Obligation under this Agreement, if any is owed, shall be deemed to be a debt of Company payable to City until Company performs and discharges its obligations hereunder including its Employment Commitment contained in Paragraph 3 and its Repayment Obligation contained in Paragraph 4. Company's obligations under this Agreement, including its Employment Commitment and Repayment Obligation, shall be•secured by an appropriate Deed of Trust to real estate owned by the Company. Contemporaneously with the execution of this Agreement, Company shall execute and deliver to City, a second mortgage security interest in the Facility, evidenced by a First Amendment to Deed of Trust, all in form and content approved by City's Attorney (the "First Amendment to Deed of Trust"). 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 twenty (20) 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. 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 a 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 the prevailing party its costs and reasonable attorney fees. Exclusive venue for any such litigation shall be Pueblo County, Colorado. All such litigation shall be filed in the District Court, County of Pueblo, State of Colorado and each party submits to the jurisdiction of such District Court. To the extent allowed by law, each party waives its right to a jury trial. 8. 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 4 4811-8237-5446.6 2096974 02/15/2018 03:48:36 PM • Page: 10 of 26 R 138.00 D 0.00 T 138.00 Gilbert Ortiz Clerk/Recorder, Pueblo County, Co • 11111 Kirgirif11111Lii9'11InIVI11 1101011:1 kirk�Lr�� 111 II I 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. 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, 200 S. Main Street, Pueblo, CO 81003 with a copy to City Attorney, 1 City Hall Place, Pueblo, Colorado 81003, or (b) if to the Company, 350 Keeler Parkway, Pueblo, Colorado, 81001, attention Adam Carroll. or to such other person or address as either party shall specify in written notice given to the other party pursuant to the provisions of this paragraph 10. 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 for assignments to entities controlling, controlled by or under common control of the Company, which the Company can do solely upon providing written notice to the City) without the express written consent of the City, which consent may be arbitrarily withheld, conditioned or delayed. Any assignment or attempted assignment of this Agreement by Company without such consent shall be null and void. However, if Company proposes to assign this Agreement to a purchaser of its business, the transaction is an arms-length transaction, the purchaser assumes and agrees to perform Company's obligations under this Agreement, and the assignment shall not waive, release or discharge Guarantor's obligations under the Continuing Guaranty, then, in such events, the assignment may be made with the express written consent of the City, which consent may not be unreasonably withheld. The City shall have the right to determine that said proposed purchaser is credit worthy, has sufficient business experience in the retail sector, and is capable of performing Company's obligations under this Agreement. 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 legally binding obligation of Company enforceable against Company in accordance with its terms. 13. Company represents and warrants that 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 or City's advancement of City Funds to Company hereunder. For breach or violation of this warranty, City shall have the right to terminate this Agreement, or recover the full amount of such commission, percentage, contingent fee or other remuneration, 5 4811-8237-5446.6 2096974 02/15/2018 03:48:36 PM Page: 11 of 26 R 138.00 D 0.00 T 138.00 liii bert Ortiz Clerk/Recorder. Pueblo County Co I4!��l � �:1111011111C11:111111141 IN NO II I and/or to seek such other remedies legally available to City, which remedies shall be cumulative. 14. In no event shall City, its officers, agents or employees be liable to Company for damages, including without limitation, compensatory, punitive, indirect, special or consequential damages, resulting from or arising out of or related to this Agreement or the performance or breach thereof by City or the failure or. delay of City in the performance of any covenant or provision under this Agreement on its part to be performed. In consideration of City entering into this Agreement, Company hereby waives and discharges City, 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 amount of City Funds actually advanced or paid by City to or for the benefit of Company pursuant to paragraph 2 hereof. Notwithstanding the above, in the event of breach of this Agreement by the City, Company shall have the right to request specific performance of this Agreement by the City, but not damages. 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 venturers or partners 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 their successors and permitted assigns, 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. Company hereby assumes and agrees to pay the obligations of Big R of Lamar, Inc. in the Agreement between the City and Big R of Lamar, Inc. dated October 1, 2009. Company further agrees to be bound by all conditions and covenants in the Agreement between the City and Big R of Lamar, Inc. dated October 1, 2009. Executed at Pueblo, Colorado,the day and year first above written. [ SEAL] Pueblo, a Municipal Corporation 6 4811-8237.5446.6 • 2096974 02/15/2018 03:48:36 PM Page: 12 of 26 R 138.00 0 0.00 T 138.00 Gilbert Orti2 Clerk/Recorder Pueblo County Co liII IPi!p I'1l11lati1111341011. l'l+l � .W���� 11111 [S,E A IA - Pueblo,a Mu • _ •r :tion Attyest: , By . ■+-, C y.Clerk •e City Council [ SEAL ] BIG RHOLD! GS, INC., a Colorado c ration At — By Name: Karla Blain Name: Bryce David Blain Title: Secretary Title: President 7 4211-8237-5446.7 • EXHIBIT B 2016 Agreement See attached. 2096974 02/15/2018 03:48:36 PM Page: 13 of 26 R/ 138.00 D 0.00 T 138.00 Gilbert Ortiz C1erklRecorder, Pueblo County, Co Ell Nilr11'1FlirFtrlIW1,1, 11111 6 2096974 02/15/2018 03:48:36 PM Page: 14 of 26 R 138.00 D 0.00 T 138.00 Gilbert Ortiz Clerk/Recorder, Pueblo Count,. Co 11111 Meant!IIr1'1iilm*,1,111:1 . Pali',1:1111111,4, 11111 EXHIBIT B 2016 Agreement See attached. 8 2096974 02/15/2018 03:48:36 PM Page: 15 of 26 R 138.00 D 0.00 T 138.00 Gilbert Ortiz Clerk/Recorder, Pueblo County. Co lIII RIV'!:Uii'INhiALVI4P 'F,N0 iR iAi'111I III AGREEMENT THIS AGREEMENT("2016 Agreement") entered into as of November 28, 2016 between Pueblo, a municipal corporation (the "City") and Big R Holdings, Inc., a Colorado corporation (the "Company") and Pueblo Development Foundation, a Colorado nonprofit corporation ("PDF"). The City and Company and PDF may be individually referred to herein as "Party"or collectively referred to as"Parties." WHEREAS, the City granted the Company economic incentives to open and operate a distribution center and administrative offices at the Pueblo Memorial Airport Industrial Park pursuant to an agreement dated December 23, 2013 ("2013 Agreement");and WHEREAS, the Parties desire that the 2013 Agreement remain in full force and effect according to its terms and conditions;and WHEREAS,Company has expressed a willingness to expand and relocate its distribution center and its business administration offices within the Pueblo Memorial Airport Industrial Park and in furtherance thereof has through the Pueblo Economic Development Corporation made application for additional funds from the City, and WHEREAS, in connection with its application, the Company has committed that (i) either it or Properties shall invest not less than One Million Eight Hundred Forty Thousand Dollars ($1,840,000) in fixed assets and other investment in a relocated distribution facility and administrative offices within the Pueblo Memorial Airport Industrial Park and (ii)the Company shall provide the employment described in Section 4 of this Agreement. WHEREAS, the City has approved such application and will make additional funds available to 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: "Effective Date"means the date of approval of this Agreement by City Council of City. "Employment Commitment Date" means January I,2020. "Facility" means the distribution center and business administration offices located at the Pueblo Memorial Airport Industrial Park, having a street address of 1 McDonnell Douglas St., Pueblo, Colorado,81001. "Full-Time Employee"means a person who actually performs work at the Facility for not less than thirty-five(35) hours per week whether employed by Company or by an outside entity acting as an agency to provide Full-Time Employees for Company. EXHIBIT B 2096974 02/15/2018 03:48:36 PM Page: 16 of 26 R 138.00 D 0.00 T 138.00 Gilbert Ortiz Clerk/Recorder, Pueblo County; Co 1111 k►rjI'fi����,ih� �k►, rr Miii .1111 "Quarter" means three consecutive calendar months commencing January 1,April 1, July 1 and October 1 of each calendar year. "Quarterly Employees" means the sum of the aggregate number of Full-Time Employees on each business day of a Quarter, divided by the sum of the business days in such Quarter. "Salary" means direct compensation payable to an employee including vacation pay, bonuses, overtime compensation and the amount of any pretax benefits paid by the employee ► under flexible spending or other qualified plans. The term does not include employer paid payroll taxes nor benefits such as employer paid health insurance. 2. If Company is not in default under this Agreement,City will advance to or for the benefit of Company funds in the amount of Seven Million Dollars ($7,000,000.00) (the "City Funds"),subject to and contingent upon the following conditions and covenants which Company agrees to perform and comply with: I Pay to the Company's affiliate, Big R Properties, LLC,a Colorado limited liability company ("Properties"), the sum of Three Million Dollars ($3,000,000) for the purchase of the distribution center and business administration offices located at the Pueblo Memorial Airport Industrial Park, having a street address of 350 Keeler Parkway, Pueblo, CO 81001 ("Keeler Property"); •. Disburse to PDF, for the benefit of Company, funds in an amount not to exceed Four Million Dollars ($4,000,000) for the actual costs and expenses of remodeling and renovating the Facility, including the costs of design,engineering and construction services. The disbursement for the purchase of the Keeler Property and remodeling and renovation of the Facility are hereinafter referred to as the "City Funds." City, PDF and the Company agree to perform and comply with the following conditions: (a)(i) purchase of the Keeler Property. The City agrees to disburse the above funds after submission of the Company's written request for payment, if such request is accompanied by any supporting documentation as required herein. The purchase of the Keeler Property shall be governed by the Contract to Buy and Sell Real Estate, pertaining to the Keeler Property, of even date herewith.The"closing"of the sale of the Keeler Property by Properties to the City shall take place within thirty(30) days of the issuance of a Certificate of Occupancy for the Facility following the remodeling and renovation of the Facility as set forth herein and the seller's obligation to close on such sale is conditioned upon the mutual closing of the transaction referenced in the following paragraph. (ii) Sal;ofthgFacility. City agrees to sell the Facility to Properties in accordance with the tarns and conditions of the Contract to Buy and Sell Real Estate pertaining to the Facility of even date herewith. Properties will lease the Facility to the Company for use by the Company as the Company's business administration offices and distribution center. The "closing"of the sale of the Facility by City to Properties shall take place within thirty(30)days 2 2096974 02/15/2018 03:48:36 PM Page: 17 of 26 R 138.00 D 0.00 T 138.00 Gilbert Ortiz Clerk/Recorder Pueblo County; Co ■IllR1Qllrl;I0:l111,41'faTl FOrt ErlifikWiiii 11111 of the issuance of a Certificate of Occupancy for the Facility following the remodeling and renovation of the Facility as set forth herein and simultaneously with the closing of the transaction referenced in the preceding paragraph. (iii) Properties Promissory Note. At the closing of real estate transactions referenced in clauses(ii)and(iii)above, Properties shall deliver to City a promissory note in the principal amount of Six Million Eight Hundred Fifty Six Thousand Dollars($6,856,000.00)with an adjustable interest rate thereon computed at the"prime rate"of Wells Fargo Bank,N.A.plus one(1)percent.The promissory note shall obligate Properties to make monthly"interest only" payments for its ten year term.At the conclusion of the ten year term,the entire principal balance shall be due and payable by Properties to the City. The interest rate shall be adjusted annually to reflect changes in the"prime rate"of Wells Fargo Bank,N.A.commencing on the first annual anniversary date of the promissory note. The promissory note shall be secured by a first-priority Deed of Trust to the Facility from Properties. (b) ElaniandAdding. (i) The Company and Properties, in consultation with PDF shall determine their needs for remodeling and renovation of the Property, and PDF (in consultation with Company and/or Properties) shall cause plans and specifications to be prepared for the work. The plans and specifications shall be filed with the City, but work shall not be performed until and unless the same are approved by City, which approval shall not be unreasonably withheld, conditioned or delayed. Additionally, PDF shall obtain the written approval of the Company prior to any presentation of the plans and specifications to the City for the City's approval. The remodeling and renovation of the Property in accordance with the approved plans and specifications is hereafter referred to as the"Project". (ii) All construction contracts for the work contemplated by the approved plans and specifications ("Construction Contracts") shall be awarded by competitive bidding. PDF shall invite general contractors holding Building Contractors-A (General Unlimited) licenses having their principal place of business in the City or County of Pueblo who are qualified and experienced to perform construction work for the Project("Local Contractors") to submit bids. PDF may invite other qualified general contractors with their principal place of business outside of Pueblo County, Colorado to submit bids. PDF shall assure that the same scope of work to be bid is timely furnished to each general contractor invited to bid. For"design- build" or other contractual arrangements, this requirement may be accomplished by a pre-bid conference or other acceptable competitive bidding procedure which allows Local Contractors a reasonable opportunity to participate in the competitive bidding procedures. All bids will be received and opened publicly. PDF will use its best efforts in good faith to award the construction contract to the lowest qualified bidder. A similar provision with respect to local subcontractors and suppliers shall be included as part of the construction contract with the general contractor who shall use its best efforts in good faith to engage local subcontractors and suppliers for such construction. If the Company, its employees or agents had negotiated with a general contractor, subcontractor or supplier with respect to the Project prior to competitive bidding, neither the Company nor PDF shall not enter into any Construction Contract with such general contractor, subcontractor or supplier for the Project. "Negotiate" means to discuss, confer upon, or arrange the terms and conditions of a Construction Contract including, without limitation, obtaining estimates of construction costs. After award, PDF shall enter into one or 3 2096974 02/15/2018 03:48:36 PM Page: 18 of 26 R 138.00 D 0.00 T 138.00 Gilbert Ortiz Clerk/Recorder Pueblo County. Co 1111 �l1?��ll�,�� , � ���P���;I" 11111 more Construction Contracts for the work and cause the remodeling and renovation to be expeditiously completed, and PDF shall timely pay all contractors for work upon the Facility. PDF shall not allow nor suffer any mechanics liens to be filed upon the Facility and in the event any such liens are filed, shall cause same to be promptly removed. (iii) City Funds will be disbursed by City to PDF solely for the costs of design, renovation and remodeling of the Property in accordance with the plans and specifications approved by City. In the event the cost of the design, remodeling and renovation exceeds $4,000,000 of available City Funds, such costs shall be promptly paid by Company or Properties and not by City. (c) Company shall file in the office of the City Clerk copies of the following: (i)a certificate or other evidence of authority to transact business in the State of Colorado issued by the Colorado Secretary of State for each of the Company and Properties, together with certificates of good standing issued by the governmental jurisdiction of each of Company's and Properties' formation, (ii)certified copies of the resolutions of the governing board of Company (or managers, as it relates to Properties) approving (A)this Agreement; (B)the Contract to Buy and Sell Real Estate for the Facility; and (C) the Contract to Buy and Sell Real Estate for the Keeler Property, and authorizing its officers or manager to execute and deliver said documents in the name of Company or Properties,as applicable, and (iii) (A)this Agreement; (B)the Contract to Buy and Sell Real Estate for the Facility; and (C)the Contract to Buy and Sell Real Estate for the Keeler Property executed by authorized officers of Company(or the manager of Properties). The date of the last to occur of the filings required under (i), (ii) and (iii) of this Section 2(c) shall be referred to herein as "Closing". If the Closing does not occur on or before March 1, 2017, or such later date as Company and City shall mutually agree, the Company and the City, each, at its sole option, may terminate this Agreement and the Contracts to Buy and Sell Real Estate referenced in clauses (B) and (C) above, and City and Company shall thereafter be released and discharged from all obligations hereunder. (d) As conditions precedent to the disbursement of City Funds for the renovation and remodeling of the Facility (i)Company and PDF shall have obtained City's written approval of the plans and specifications for the renovation and remodeling of the Facility, which shall not be unreasonably withheld, conditioned or delayed; (ii)Company shall file with the City Clerk the documents described in subsection(c) above; and (iii) PDF shall file with the City's Director of Finance periodic written requests for payment, certified to be true and correct by an officer of Company or PDF, representing 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 remodeling the Facility, identifying the specific work for which payment is sought, including paid invoices therefor and certificates of delivery and installation in the Facility. PDF shall not submit requests for payment which exceed in the aggregate$4,000,000. 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 hereunder is the creation of jobs. Therefore, Company represents, covenants, and agrees that Company will on and after the Employment Commitment Date continuously conduct its business operations at the Facility and employ not less than thirty-three (33) new Full-Time Employees at the Facility whose annual compensation shall average at least $51,452 in Salary and at least $64,315 including benefits. Company will use good faith efforts in accordance with its sound business 4 2096974 02/15/2018 03:48:36 PM Page: 19 of 26 R 138.00 D 0.00 T 138.00 Gilbert Ortiz Clerk/Recorder. Pueblo County, Co 1 VIII�lr11 aNil I:I '�i?r!A'1041 �'V W' ASG�1�f. 111111 practices to employ residents of the City of Pueblo as Full-Time Employees including, without limitation, engaging in reasonable programs and posting of employment openings in the City of Pueblo (collectively the "Employment Commitment"). The thirty-three (33) Full-Time Employees must be new employees employed at the Facility, i.e. in addition to the number of Full Time Employees employed by the Company as of the date of this Agreement. 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, 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 new Quarterly Employees less than thirty-three (33) Full-Time Employees employed at the Facility by Company multiplied by $1,616.88 (the "Company's Quarterly Payments"). For example, if for the second Quarter of the third year after the Employment Commitment Date such new Quarterly Employees is 30, the amount payable by Company to City on or before the fifteenth(15th)day of the next calendar month would be(33 - j 30)x$1,616.88=$4,850.64. (b) Company's Quarterly Payments, if any, shall be paid to the City without notice, demand, deduction or setoff on or before the fifteenth (15th) day of the month after the end of each Quarter during the Repayment Period and for one month thereafter at the office of ( the Director of 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 percent(8%)per annum ("Default Interest")until paid. (c) Within fifteen (15) days after the end of each Quarter after the Employment Commitment Date and for one calendar month after the Repayment Period, Company will submit to City's Director of Finance Company's statements showing the Quarterly Employees for the preceding Quarter and their annual Salary,together with 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 Company's employment and salaries, City shall have access to Company's records relating to Company's employees employed at the Facility. (d) Notwithstanding anything contained in this Paragraph 4 to the contrary, if Company defaults in its Employment Commitment and Company's 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, the entire balance of Company's Repayment Obligation shall become due and payable, without notice, notice being hereby expressly waived, together with Default Interest from the date of default, and for such purpose, the entire balance of Company's Repayment Obligation shall be an amount equal to 33 times $1,616.88 multiplied by the remaining Quarters of the Repayment Period from and after the default date plus the amount of Company's unpaid Quarterly Payments, if any, but in no event more than $1,494,000 plus Default Interest as herein provided Except as may be agreed by the City Council in its/their sole 5 2096974 02/15/2018 03:48:36 PM Page: 20 of 26 R 138.00 D 0.00 T 138.00 • Gilbert Ortiz Clerk/Recorder: Pueblo County. Co gri1 111 II1 discretion (as contemplated under paragraph 6(b) hereof), 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. 5. Company's Repayment Obligation under this Agreement, if any is owed, shall be deemed to be a debt of Company payable to City until Company performs and discharges its obligations hereunder including its Employment Commitment contained in Paragraph 3 and its Repayment Obligation contained in Paragraph 4. Company's obligations under this Agreement, including its Employment Commitment and Repayment Obligation, shall be secured by a first- in-priority Deed of Trust to the Facility. 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 twenty (20) 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. 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 a 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 the prevailing party its costs and reasonable attorney fees. Exclusive venue for any such litigation shall be Pueblo County, Colorado. All such litigation shalt be filed in the District Court, County of Pueblo, State of Colorado and each party submits to the jurisdiction of such District Court. To the extent allowed by law,each party hereby waives its right to a jury trial. 8. 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 and PDF. 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 6 2096974 02/15/2018 03:48:36 PM Page: 21 of 26 R 138.00 D 0.00 T 138.00 Gilbert Ortiz Clerk/Recorder: Pueblo County. Co { 11111 IrA'11111111102141L1h:1111L U+ P:IIARII111111i i 11111 a waiver of such breach. 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, 2nd Floor, Pueblo, CO 81003 with a copy.;to IC:ity Attorney, 1 City Hall Place, 314 Floor, Pueblo, Colorado 81003,or (b) if to the Company, 350 Keeler Parkway, Pueblo, Colorado, 81001, attention Adam Carroll, with a copy to Maynes, Bradford, Shipps & Sheftel, LLP, Attn: Sherri Way, 1331 Seventeenth Street, Suite 410, Denver,Colorado,80202,or (c) if to the PDF,301 N. Main Street, Suite 210,Pueblo,Colorado 81003. or to such other person or address as either party shall specify in written notice given to the other party pursuant to the provisions of this Paragraph 10. 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. Company may not assign this Agreement or any interest herein (except for assignments to entities controlling, controlled by or under common control of the Company, which the Company can do solely upon providing written notice to the City)without the express written consent of the City,which consent may be arbitrarily withheld, conditioned or delayed. PDF may not assign this Agreement or any interest herein without the express written consent of the City, which consent may be arbitrarily withheld, conditioned or delayed. Any assignment or attempted assignment of this Agreement by Company or PDF without such consent shall be null and void. However, if Company proposed to assign this Agreement to a purchaser of its business, the transaction is an arms- length transaction, the purchaser assumes and agrees to perform Company's obligations under this Agreement, then in such events,the assignment may be made with the express consent of the City, which consent may not be unreasonably withheld. The City shall have the right to determine that said proposed purchaser is creditworthy, has sufficient business experience in the retail sector,and is capable of performing Company's obligations under this Agreement. 12. The persons signing this Agreement in the name of and on behalf of Company and PDF represent and warrant that they and Company and PDF have the requisite power and authority to enter into, execute, and deliver this Agreement, and that this Agreement is a valid legally binding obligation of Company and PDF enforceable in accordance with its terms. 13. Company represents and warrants that 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 or City's advancement of City Funds hereunder. For breach or violation of this warranty, City shall have the right to terminate this Agreement, or recover the 7 2096974 02/15/2018 03:48:36 PM Page. 22 of 26 R 138.00 D 0.00 T 138.00 Gilbert Ortiz Clerk/Recorder, Pueblo County, Co 11111!i!�.rI ILI,1,9l:h�k' t,I'i�tkE;ii 11�E'��:��G'�,'tiR�'���i4��� 1I II I full amount of such commission, percentage,contingent fee or other remuneration,and/or to seek such other remedies legally available to City,which remedies shall be cumulative. 14. In no event shall any Party, its officers, agents or employees (collectively, the "First Party") be liable to any other Party for damages, including without limitation, compensatory, punitive, indirect, special or consequential damages, resulting from or arising out of or related to this Agreement or the performance or breach thereof by the First Party or the failure or delay of any Party other than the First 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 Parties hereby waive and discharge one another, and each of their 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 amount of City Funds actually advanced or paid by City to or for the benefit of Company pursuant to Paragraph 2 hereof. 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 venturers or partners 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 their successors and permitted assigns, 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. Notwithstanding this 2016 Agreement, the terms and conditions of the 2013 Agreement between the City and the Company shall remain in full force and effect in accordance with its terms. REST OF THIS PAGE LEFT INTENTIONALLY BLANK SIGNATURE PAGE TO FOLLOW 8 2096974 02/15/2018 03:48:36 PM Page: 23 of 26 R 138.00 D 0.00 T 138.00 Gilbert Ortiz Clerk/Recorder. Pueblo County, Co 1111 .r1�. �14�'4 ��.I �tM�+Phfiii*AK Executed at Pueblo, Colorado,the day and year first above written. [ SEAL] Pueblo,a Municipal Corporation Attest: By City Clerk President of the City Council [ SEAL] BIG R HOLDINGS, INC., a Colorado corporation Attest: By — Name: Karla Blain Name: Bryce David Blain, Jr. Title: Secretary Title: President PUEBLO DEVELOPMENT FOUNDATION A Colorado Non-profit Corporation By: - Robert L. Root, President Attest: l c/ retary 9 2096974 02/15/2018 03:48:36 PM Page: 24 of 26 R 138.00 D 0.00 T 138.00 Gilbert Ortiz Clerk/Recorder. Pueblo County: Co 1111 PPM Ilesir Tri wt I110111e4����104,f'J III Executed at Pueblo, Colorado, the day and year first above written. [ S E AL.] Pueblo . Car:c+� ;,. . Attest: � "3,►�= By"— City rk President of the City Council [ SEAL] BIG R I- DINGS, INC., a Colo o c rporation A 41 .��'�� �C'���`, -c . By Name: Karla B :in Name: Bryce David Blain,Jr. Title: Secretary Title: President PUEBLO DEVELOPMENT FOUNDATION A Colorado Non-profit Corporation By: Robert L. Root, President Attest: Secretary 9 2096974 02/15/2018 03:48:36 PM Page: 25 of 26 R 138 00 D 0.00 T 138.00 Gilbert Ortiz Clerk/Recorder, Pueblo County, Co 11111WWI: I I 11114/111FINgiiiiiiiiAllirailihNiiiiNiiiiii 1111 EXHIBIT C Permitted Exceptions Taxes and assessments for the year 2018 and subsequent years. Water rights, claims or title to water. Title to all minerals within and underlying the premises, together with all mining and drilling rights and other rights, privileges and other immunities relating thereto. The Company makes no representation as to the present ownership of any such interests. There may be leases, grants, exceptions or reservations of interests that are not listed. Any and all existing roads, highways, ditches, canals, reservoirs, wells, railroad tracks, pipelines, water lines, power lines, telephone lines, and any and all unrecorded rights of way or easements therefore. Easement and Right of Way Agreement in favor of Colorado Eastern Telephone and Telegraph Co. recorded May 7, 1908 in Book 321 at Page 477 as Reception No. 158891. Partial Release recorded September 30, 2011 as Reception No. 1887019. License Agreement granted to The Colorado Postal - Cable Company recorded December 30, 1913 in Book 390at Page 188 as Reception No. 202661. Utility Easement in favor of Colorado Postal Telegraph-Cable Company recorded January 21, 1938 in Book 849 at Page 247 as Reception No. 584415. Quit Claim Deed in favor of United States America for the purpose of a utility easement recorded December 11, 1942 in Book 940 at Page 63 as Reception No. 694374. Easements, restrictions, reservations covenants, conditions, provisions and agreements set forth and more fully described in the Quit Claim Deed recorded July 31, 1948 in Book 1074 at Page 87 as Reception No. 189072. Easement to Colorado Interstate Gas Company, a Delaware corporation, it's successors or assigns, recorded February 18, 1950 in Book 1116 at Page 427 as Reception No. 859157. If found to intersect the subject property. Reservation as contained in Deed of Release from The United States of America, acting by and through the Administrator of Civil Aeronautics to The City of Pueblo, a bod politic under the laws of the State of Colorado, as recorded September 20, 1956 in Book 1309 at Page 146 as Reception No. 24198. Reservation as contained in the Release from The United States of America, acting by the Federal Aviation Administration to The City of Pueblo, as body corporate and politic, under the laws of the State of Colorado, as recorded September 25, 1970 in Book 1678 at Page 155 as Reception No. 397115, and in Deed recorded September 25, 1970 in Book 1678 at Page 159 as Reception No. 397116. Pueblo County Board of County Commissions Resolution No. 86-Z-60 approving plat for Subdivision Exemption No. 86-9 recorded October 30, 1986 in Book 2314 at Page 01 as Reception No. 815855. All matters as depicted on the filed plat for Subdivision Exemption No. 86-9 recorded October 30, 1986 in Map Book S at Page 226 as Reception No. 815856. 7 20969748 02/15/2018 03:48:36 PM Page: 26 ofz Clerk/Recorder,138. 0 D 0.00 1lo 138.00 nty Co Gilbert KAT Pr!:11f ialii,1 144',1,!4 I1MtV italiti 111 II I Pueblo County Board of County Commissioners Resolution No. 87-Z-8 approving the plat Subdivision Exemption No. 87-1 recorded March 16, 1987 in Book 2337 at Page 692 as Reception No. 828001. All matters as depicted on the filed plat for Subdivision Exemption No. 87-1 recorded March 16, 1987 in Map Book S at Page 230 as Reception No. 828002. Easements, restrictions, reservations covenants, conditions, provisions and agreements set forth and more fully described in the Warranty Deed recorded July 25, 1988 in Book 2406 at Page 361 as Reception No. 867863. The effect of Annexation into the City of Pueblo as evidenced by Plat recorded April 6, 1990 in Book 2492 at Page 622 as Reception No. 915966. Easements, restrictions, reservations covenants, conditions, provisions and agreements set forth and more fully described in the Warranty Deed recorded June 6, 1994 in Book 2737 at Page 560 as Reception No. 1046763. Matters as depicted on the plat for Pueblo Memorial Airport Industrial Park Subdivision recorded October 11, 1995 in Book 2836 at Page 665 as Reception No. 1096136. Note: Ratification of Plat recorded October 11, 1995 in Book 2836 at Page 683 as Reception No. 1096149. Terms and Conditions as disclosed in the Subdivision Improvements Agreement for Pueblo Memorial Airport Industrial Park Subdivision recorded October 11, 1995 in Book 2836 at Page 705 as Reception No. 1096167. Easements, restrictions, reservations covenants, conditions, provisions and agreements set forth and more fully described in the Warranty Deed recorded August 25, 2006 as Reception No. 1690590. The affect, if any, of Assessments that may be levied by the Pueblo Conservancy District, per Notice of an Order Approving the Amended Official Plan for the Pueblo Conservancy District, recorded August 1, 2007 as Reception No. 1736292 and Map recorded December 31, 2009 as Reception No. 1829096. Order for Appointment of Commissioners to Serve as Board of Appraisers and Order Amending Previous Order recorded October 9, 2012 as Reception No. 1921465. Pueblo County Board of County Commissioners Resolution No. P&D 18-004 approving the change of address recorded January 24, 2018 as Reception No. 2094810. 8