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2 <br />EL185\77\970529.v2 <br />WHEREAS, the Purchase Price Note and the Energy Rebate constitute a business subsidy within <br />the meaning of Minnesota Statutes, Sections 116J.993 through 116J.995, as amended (the “Business <br />Subsidy Act”), and the City has adopted criteria for awarding business subsidies that comply with the <br />Business Subsidy Act, after a public hearing for which notice was published in compliance with the <br />Business Subsidy Act; and <br />WHEREAS, the City Council of the City has held a duly noticed public hearing on the business <br />subsidy provided as represented by the Purchase Price Note and the Energy Rebate and this Agreement <br />constitutes a subsidy agreement under the Business Subsidy Act; and <br />WHEREAS, pursuant to a certain Assignment of Purchase Agreement, the Original Developer <br />assigned their rights, title and interest in and to the Purchase Agreement to the Developer; and <br />WHEREAS, to finance the Project, the Developer has received (i) construction loans from First <br />Bank Elk River, a Minnesota state banking corporation (the “Bank”), in the aggregate maximum principal <br />amount of up to $17,554,000 (collectively, the “Bank Loan”), and (ii) a loan (the “SBA Loan” and, <br />together with the Bank Loan, the “Priority Loans”) from Twin Cities-Metro Certified Development <br />Company, a Minnesota nonprofit corporation (the “SBA Lender” and, together with the Bank, the <br />“Lenders”), assigned to the U.S. Small Business Administration, in an amount not to exceed $4,824,000, <br />and the Lenders, and as a condition of giving the Developer the Priority Loans, require that the City <br />execute a certain Subordination Agreements by and between the City and the Lender, pursuant to which <br />the City agrees to subordinate its rights under this Agreement and related documents to the payment of all <br />amounts due to the Lenders under the documents related to the Priority Loans; and <br />WHEREAS, the City, the Developer and the Company now wish to amend and restate the <br />Original Agreement as further provided herein; <br />NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties <br />hereto, each of them does hereby covenant and agree with the other as follows: <br />Page 231 of 327