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Home My WebLink About20092043.tiff ( Kum & go Tuesday, August 04, 2009 Jennifer Vandegdom Clerk to the Board's Office Weld County 915 10th Street Greeley, CO 80832 RE: Request for Concurrent Review/New License Application Kum & GoLCdba Kum & Go#913 13799 Pacific Circle Mead, CO 80504 Dear Jennifer: By this application; I am requesting that you forward the above-mentioned application to the State for concurrent review. I appreciate your cooperation. Please do not hesitate to contact me if you have any questions concerning this license application. PERMISSION GIVEN FOR THIS APPLICATION Sincerely TO BE FORWARDED TO THE STATE LIQUOR LICENSING DIVISION FOR CONCURRENT REVIEW c -,� � � Lori Miller BY rk'9/"z r).42Q.44/10 ouglas Rademach r Licensing Specialist Chair Pro-Tern, Bo rd of County Commissions Phone (515)457-8164 Fax (515)457-0159 DATE: 8/10/2009 lamSkumandgo.com Consen+ A nd& /C( OO5/ 08 I/o) 2009-2043 DR 5403(03/19/09) /'� COLORADO DEPARTMENT OF REVENUE L LIQUOR ENFORCEMENT DIVISION 1375 SHERMAN STREET DENVER CO 80251 COLORADO FERMENTED MALT BEVERAGE (3.2% BEER) LICENSE APPLICATION Z NEW LICENSE ❑ TRANSFER OF OWNERSHIP ❑ LICENSE RENEWAL • ALL ANSWERS MUST BE PRINTED IN BLACK INK OR TYPEWRITTEN • APPLICANT MUST CHECK THE APPROPRIATE BOX(ES) • LOCAL LICENSE FEE $ • APPLICANT SHOULD OBTAIN A COPY OF THE COLORADO LIQUOR AND BEER CODE(Call 303.370-2165) DO NOT WRITE IN THIS SPACE 1. Applicant is applying as a ❑ Corporation ❑ Partnership(includes Limited Liability and Husband and Wife Partnerships) ❑ Individual ® Limited Liability Company ❑ Association or Other 2. Applicant(s)If an LLC,name of LLC;if partnership,at least 2 partners'names;if corporation,name of corporation Fein Number Kum & Go LC 42-1465780 2a.Trade Name of Establishment(DBA) State Sales Tax No. Business Telephone Kum& Go#913 12-40424-0028 pending 3. Address of Premises(specify exact location of premises) 13799 Pacific Circle City County State ZIP Code Mead Weld CO 80504 4. Mailing Address (Number and Street) City or Town State ZIP Code 6400 Westown Parkway West Des Moines, IA 50266 CO 50266 5. If the premises currently have a liquor or beer license,you MUST answer the following questions: Present Trade Name of Establishment(DBA) Present State License No. Present Class of License Present Expiration Date ),IA@ SECTION A NONREFUNDABLE APPLICATION FEES LIA@ SECTIONS 3,2%BEER LICENSE FEES;'. 2300 ❑ Application Fee for New License $1,025.00 2121 ❑ Retail 3.2%Beer On-Premises(City) $ 96.25 2302 121 Application Fee for New License- 2124 ❑ Retail 3.2%Beer On-Premises(County) $117.50 w/Concurrent Review $1,125.00 P122 7 Retail 3.2%Beer Off-Premises(City) $ 96.25 2310 ❑ Application Fee for Transfer $1,025.00 2125 Wr Retail 3.2%Beer Off-Premises(County) $117.50 2123 ❑ Retail 3.2%Beer On/Off Premises(City) $ 96.25 2126 ❑ Retail 3.2%Beer On/Off Premises(County) $117.50 2370®Master File Location Fee $ 25.00 x 1 Total 25.00 2375❑Master File Background $250.00 x Total DO NOT WRITE IN THIS SPACE-FOR DEPARTMENT OF REVENUE USE ONLY LIABILITY INFORMATION County City Industry Type License Account Number Liability Date License Issued Through (Expiration Date) FROM TO State City County -750(999) 2180-100(999) 2190-100(999) Cash Fund Nov License GM Fund Transfer Lldenu 2300-100 2310-100 TOTAL (999) (999) DR 8403 (03/19/09)Page 3 6. Is the applicant(including any of the partners,if a partnership;members or manager if a limited liability company;or officers,stock- Yes No holders or directors if a corporation)or manager under the age of twenty-one years? Q ❑ 7. Has the applicant(including any of the partners,if a partnership;members or manager if a limited liability company;or officers, stockholders or directors if a corporation)or manager ever(in Colorado or any other state); Yes No (a) been denied an alcohol beverage license? ❑ (b) had an alcohol beverage license suspended or revoked? ❑ VII (c) had interest in another entity that had an alcohol beverage license suspended or revoked? ❑ O If you answered yes to 7a,b or c,explain in detail on a separate sheet. Yes No 8. Has a 3.2 beer license for the premises to be licensed been denied within the preceding one year?If"yes,"explain in detail. ❑ vi 9. Has a liquor or beer license ever been issued to the applicant(including any of the partners,if a partnership;members or manager it a limited liability company;or officers,stockholders or directors if a corporation)?If yes,identify the name of the business and list any Yes No current or former financial interest in said business including any loans to or from a licensee.es G /r_ Q El10. Does the Applicant,as listed on line 2 of this application,have legal possession of the premises by virtue of ownership, lease or other Yes No arrangement? ❑ j Ovnership )Lease ❑ Other(Explain in Detail) a. If leased,list name of landlord and tenant,and date of expiration,EXACTLY as they appear on the lease: Landlord Teppa t Expires Ashwar:A-07 c-ffrost, hu-t1le 6oA,L / 43101-cin Attach a diagram and outline or designate the area to be licensed(including dimensions)which shows the bars, brewery,walls,partitions, entrances,exits and what each room shall be utilized for in this business.This diagram should be no larger than 8 1/2"X 11". (Doesn't have to be to scale) 11. Who,besides the owners listed in this application(including persons,firms,partnerships,corporations, limited liability companies), will loan or give money, inventory,furniture or equipment to or for use in this business;or who will receive money from this business. Attach a separate sheet if necessary. Name Date of Birth FEIN or SSN Interest none Attach copies of all notes and security instruments, and any written agreement, or details of any oral agreement,by which any person(including partnerships, corporations,limited liability companies,etc.)will share in the profit or gross proceeds of this establishment, and any agreement relating to the business which is contingent or conditional in any way by volume, profit, sales,giving of advice or consultation. h v /// . 12. Name of Manager for all on and on/off applicants. ,0 G:'^U1i Cr—C-- ny h ann 13. Does this manager act as the manager of,or have a financial interest in,any other liquor `/ Yes No licensed establishment in the State of Colorado? If yes,provide name,type of license and account number. ❑ 14. Tax Distraint Information. Does the applicant or any other person listed on this application and including its partners,officers, Yes No directors,stockholders,members(LLC)or managing members(LLC)and any other persons with a 10%or greater financial interest in ❑ No the applicant currently have an outstanding tax distraint issued to them by the Colorado Department of Revenue? If yes,provide an explanation and include copies of any payment agreements. DA 6403 (03/18/C9)Page 4 15. If applicant is a corporation,partnership, association or a limited liability company,applicant must list ALL OFFICERS, DIRECTORS, GENERAL PARTNERS,AND MANAGING MEMBERS. In addition applicant must list any stockholders,partners,or members with OWNER- SHIP OF 10%OR MORE IN THE APPLICANT.ALL PERSONS LISTED BELOW must also attach form DR 8404-I(Individual History Record), and submit finger print cards to their local licensing authority. Name Home Address,City&State Date of Birth Position %Owned' Krause Holdings Inc 6400 Westown Parkway West Des Moines IA 50266 na shareholder 100 Kyle Krause 30375 Napa Ranch Rd Waukee IA 50263 CFO 0 ❑' If total ownership percentage disclosed here does not total 100%,applicant must check this box Applicant affirms that no individual,other than those disclosed herein,owns 10%or more of the applicant Additional Documents to be submitted by type of entity LI CORPORATION ❑ Cert.of Incorp. LI Cert.of Good Standing(if more than 2 yrs.old) ❑ Cert.of Auth. (if a foreign corp.) ❑ PARTNERSHIP ❑ Partnership Agreement(General or Limited) ❑ Husband and Wife partnership(no written agreement) V LIMITED LIABILITY COMPANY 2 Articles of Organization [7 Cert.of Authority(if foreign company) V Operating Agrmt. ❑ ASSOCIATION OR OTHER Attach copy of agreements creating association or relationship between the parties Registered Agent(if applicable) Address for Service Corporations Service Company ; 1560 Broadway Ste 2090 Denver, CO 80202 OATH OF APPLICANT • /declare under penalty of perjury in the second degree that this application and all attachments are true, correct,and complete to the best of my knowledge. I also acknowledge that it is my responsibility and the responsibility of my agents and employees to comply with the provisions of the Colorado Liquor or Beer Code which affect my license Authorized Signature Title Date PORT AND APPROVAL OF LOCAL LICENSING AUTHORITY(CITY/COUNTY) Date application filed with local authority i Date of local authority hearing(for new license applicants;cannot be less than 30 days from date of application 12-47-311(1))C.R.S. Tub 27 300CI THE LOCAL LICENSING AUTHORITY HEREBY AFFIRMS: That each person required to file DR 8404-I(Individual History Record)has: Yes No ❑ Been fingerprinted ❑ ❑ ❑ Been subject to background investigation, including NCIC/CCIC check for outstanding warrants ❑ ❑ That the local authority has conducted,or intends to conduct,an inspection of the proposed premises to ensure that the applicant is in compliance with,and aware of,liquor code provisions affecting their class of license ❑ ❑ (Check One) ❑ Date of Inspection or Anticipated Date ❑ Upon approval of state licensing authority. The foregoing application has been examined;and the premises,business to be conducted,and character of the applicant are satisfactory. We do report that such license,if granted,will meet the reasonable requirements of the neighborhood and the desires of the adult inhabitants, and will comply with the provisions of Title 12, Article 46 or 47,C.R.S. THEREFORE,THIS APPLICATION IS APPROVED. 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THIS LICENSE MUST BE POSTED AT THE FOLLOWING LOCATION THIS LIC lS is NOT IN A CONSPICUOUS PLACE: 1 -25 EXIT 243 TRANS BASLE MEAD CO 11111111 I111111III11111111111111111111111111r111rr111111I KUM & GO LLC KUM&GO # 913 6400 WESTOWN PKWY WEST DES MONIES IA 50266-7709 Ex tive'Director Department of Revenue A DETACH HERE A IMPORTANT NOTICE from the Colorado Department of Revenue Please VERIFY that all information on your new sales license is correct. You can notify the Department of errors by calling (303) 238-SERV(7378), by e-mail at Customer Support on our web site www.taxcolorado.com or by writing to: Colorado Department of Revenue Denver CO 80261-0013 Preprinted forms will be mailed within six weeks.Tax reporting and payment are your responsibility whether or not you re- ceive your returns before the filing deadline. Blank tax forms can be obtained from our Web site www.taxcolorado.com or by calling (303)238-FAST(3278). In order to avoid late penalties and interest, returns must be POSTMARKED on or before the due date. You must notify the Department if you discontinue sales at this location. IMPORTANT INFORMATION ABOUT YOUR LICENSE Colorado law requires that you file the required sales tax returns even when you have no retail sales activity. If you do not file the required sales tax retums,the Department will automatically dose your account and this license will no longer be valid. NEW AUTOMATED SERVICES FOR AND ABOUT BUSINESSES The Colorado Department of Revenue Sales Tax Information System provides the following automated services: * Colorado Sales Tax rates-find specific city, county and special district rates. * Verification of Sales Tax License and Exemption Numbers-determine whether a Colorado sales tax license or exemption certificate is valid. • Tax Rates by Account Number-find sales tax rates and locations for specific sales tax accounts. The new system is online at www.taxview.state.co.us or by phone at(303)238-FAST(3278). For general information visit www.taxcolorado.com or call (303)238-SERV(7378). SERVICE CENTER LOCATIONS: DENVER SERVICE CENTER GRAND JUNCTION SERVICE CENTER 1375 Sherman Street 222 S.Sixth Street,Room 208 Denver CO 80261 Grand Junction CO 81501 COLORADO SPRINGS REGIONAL SERVICE CENTER PUEBLO SERVICE CENTER 4420 Austin Bluffs Parkway 310 E.Abriendo Avenue,Suite A4 Colorado Springs CO 80918 Pueblo CO 81004 FORT COLLINS REGIONAL SERVICE CENTER 1121 W.Prospect Rd.,Building D Fort Collins CO 80526 p'YI c_.,j Stmt @g¢i,J 1 q E1 q Pi 5Fbi6ta ,� ,� dE�$ t� A v .,! 4o ©E) �'�9g ' 1d{��it�i71t� �'A ' 1:;'.. q i.e ,' I I , l R 61/ :ryll I5 .,m ii A f. " Yfb P E. i.w{5 E 1 p5 $ >. G i'' lL� 'iti Matti It ilil T. i 'e 8 ' tm� ri p/!5 �� kid II f ♦ {! g 15 t FIF 3, v r_po �% Et v rug b ♦„silh: ai Niln ... wr 5yt e�5 4. Ili . • III • 9f All If 3 9E If 5 a 2 $t ©p 4 RI 4 4>. / . eI,�I s 9 0 /% i5P ill li I iii 1 i�9q ¢:��; Ii ≥ Ill i N L_a t�1.1 .. A. I��O 1CI i II 1 P R a� 11 0 d9 � t"I ° ₹2 �3z II ' E• t DJa,,.,u.,,,,,,,btam I Mi . LL, � - t'b• 8Ay" z UJ fad11 H • O II!: 11:lif. m-' ii d : g9 dli 0 €`° cTh J 321. n ; )g KUM & GO STORE #913 S IIIFFLERI t ii of FLOOR PLAN SCALE yr-ra p.w.�s FOv e+w.�A .T�Esf LEASE AGREEMENT THIS LEASE is made and entered into on or as of the 1st day of March 14, 2007,by and between ASHWORTH AT 60th, L.C., an Iowa limited liability company, (hereinafter the "Landlord"),and KUM&GO,L.C.,an Iowa limited liability company(hereinafter the"Tenant"); WITNESSETH: WHEREAS, Tenant desires to Lease the premises described below from Landlord; NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, and for other good and valuable consideration, Landlord and Tenant agree as follows: ARTICLE I INCORPORATION OF RECITALS AND DEFINITIONS Section 1.01 Incorporation of Recitals. The Recitals set forth above are incorporated by this reference. Section 1.02 Definitions. All capitalized terms used and not otherwise defined in this Lease shall have the following meanings unless a different meaning clearly appears from the context: "Base Rent" means the rental obligation under this Lease as described in Section 3.01. "Effective Date"means the commencement date of the term of this Lease,which is March 14, 2007. "Event(s) of Default"shall have the meaning ascribed to it in Article XIII. "Extended Term" shall have the meaning ascribed to it in Section 2.04. "Initial Term" shall have the meaning ascribed to it in Section 2.03. "Landlord"means Ashworth at 60th, L.C. "Lease"means this Lease Agreement, as the same may be from time-to-time modified, amended or supplemented. "Personalty" shall have the meaning ascribed to it in Section 2.02. "Premises" means the real estate legally described as set forth in Section 2.01. "Right of First Refusal" shall have the meaning ascribed to it in Section 4.01. "Store" is synonymous with the term Premises. "Tenant" means Kum & Go, L.C., an Iowa limited liability company. "USTs"means underground storage tanks. ARTICLE II LEASED PREMISES AND TERM Section 2.01 Leased Premises. Landlord hereby demises and leases to Tenant,and Tenant does hereby lease and take from Landlord,the "Premises" locally described as Kum & Go ft 913, 13799 Pacific Circle, Mead, Colorado 80504, and legally described as follows, to-wit: Lot 1, Lyons 66 Pacific Commerce Park, Weld County, Colorado; together with all buildings, structures,and improvements located thereon and all rights,easements and appurtenances thereto belonging. Landlord owns the Service Center next to the Convenience Store. Section 2.02 Personalty. It is acknowledged by Landlord and Tenant that the property being leased includes all property used or intended for use in connection with the operation of the Store,including but not limited to:(i)all furniture,fixtures and equipment, including all appliances, food service equipment,coolers,refrigeration equipment and compressors; (ii)all shelving,racks, counters and signage;(iii)all tanks,lines,pumps and systems relating thereto;(iv)all canopies; and (v)all supplies and materials held for use or consumption (the "Personalty"). Section 2.03 Term. The initial term of this Lease shall commence as of its Effective Date and shall terminate at midnight on March 13, 2017 (the "Initial Term"). Section 2.04 Renewal Option. Landlord hereby grants to Tenant the option to extend the term of this Lease for two (2) additional five (5) year periods (hereinafter said options are individually and collectively referred to as the"Extended Term")commencing when the prior term expires upon each of the following terms and conditions: A. Tenant gives Landlord written notice of the exercise of the option(s)not less than ninety(90)days prior to the expiration of the Initial Term, or an Extended Term, as the case may be; B. Tenant, at the exercise of said option, is not in material default under this Lease beyond any applicable grace periods; C. All of the terms and conditions of this Lease shall apply to the Extended Term; and D. Tenant shall pay the applicable Base Rent for the Extended Term. —2— Section 2.05 Permitted Use. The Premises may be used for any legal purpose or purposes, including, but not limited to, a convenience store that sells liquor, gasoline, diesel fuel, and other petroleum products. ARTICLE III BASE RENT Section 3.01 Base Rent. During the Initial Term and any Extended Term,Tenant shall pay to Landlord the following as monthly"Base Rent,"to-wit: Initial Term Years Monthly Base Rent 1-10 $5,000.00 First Extended Term Years Monthly Base Rent 11-15 $5,250.00 Second Extended Term Years Monthly Base Rent 16-20 $5,512.50 ARTICLE IV RIGHT OF FIRST REFUSAL Section 4.01 Right of First Refusal. Landlord hereby grants to Tenant a right of first refusal with respect to the acquisition of the Premises (the "Right of First Refusal"). Upon Landlord's receipt of any such offer (or upon Landlord's desire to dispose of the Premises at a stated price), Landlord shall deliver to Tenant a written offer of sale for the Premises designating (i) the exact portion of or interest in the Premises to be sold; (ii)the name and address of the intended transferee if any; (iii) the total price to be paid for the Premises; and (iv) the manner, mode, and terms of purchase. Upon receipt of said offer, the Tenant shall within twenty(20) days notify Landlord in writing whether it desires to acquire the Premises in accordance with the terms set forth in the notice. If Tenant declines said offer or fails to timely exercise its rights with respect to said offer, then Tenant shall be deemed to have completely rejected said offer and the Premises may be sold by Landlord to any third party on the same terms for a total price equal to or greater than, but in no event less than, the total price set forth in the initial notice to Tenant at any time within a period of six (6) months after the expiration of the aforementioned twenty (20) day option period. It is acknowledged by Landlord,however,that any such sale or transfer by Landlord of its interest in the Premises shall be subject to this Lease, unless Tenant is the purchaser. Notwithstanding the -3- foregoing, the terms and provisions of this Section shall not apply to any transfer by Landlord to another entity owned or controlled by the principals of Landlord or Landlord's immediate family members, or transfers between the partners. ARTICLE V ADDITIONAL RENT: TAXES, UTILITIES AND INSURANCE Section 5.01 Real Estate Taxes. Tenant shall be responsible for and pay all real estate or personal property taxes levied or assessed against the Premises which would become delinquent if not paid during the term of this Lease; provided, however, that the foregoing shall not preclude Tenant from seeking administrative or judicial review of or relief from the amount,applicability,or constitutionality of any tax or tax statute relating to the taxation of the Premises. Section 5.02 Special Assessments. Tenant shall be responsible for and pay any special assessments levied or assessed against the Premises which would become delinquent if not paid during the term of this Lease; provided, however, that Tenant shall not be precluded from seeking administrative or judicial review of the amount, applicability or constitutionality of any special assessment relating to the Premises. Section 5.03 Utilities. Tenant,during the term of this Lease,shall pay,before delinquency, all charges for use of telephone,water,sewer,gas,heat,electricity,power,air conditioning,garbage disposal, and all other utilities and services of whatever kind and nature which may be used in or upon the Premises. Section 5.04 Insurance. Tenant shall procure, pay for, and maintain the insurance coverages described in this Lease. ARTICLE VI REPAIRS, IMPROVEMENTS AND FIXTURES Section 6.01 Repairs and Improvements. Except as otherwise provided in this Lease, Landlord shall not be required to make any repairs,replacements, or improvements of any kind on or to the Premises. Tenant,at its cost,may(but without any obligation to do so)make such repairs, alterations and improvements to the Premises as Tenant may deem desirable for its use thereof provided that in each instance the market value thereof is not diminished, including,but not limited to, doing any one or more of the following: A. Altering or remodeling any building or improvements on the Premises; B. Constructing an addition or additions thereto; and C. Razing any building or improvement situated on the Premises and erecting in place thereof a new building or improvement. -4- Tenant agrees that it will not permit any mechanic's,materialmen's or other liens to stand against the Premises for work or materials furnished to Tenant in connection with any such alterations, remodeling,additions or new construction;provided,however,that Tenant may contest the validity of such lien or claim, but upon final determination,Tenant shall immediately pay any judgment or decree rendered against Tenant,with all proper costs and charges and shall cause any such lien to be released of record without cost to Landlord. Section 6.02 Installation and Removal of Fixtures,Paintings and Signs. Tenant may place or install on, in or about the Premises such fixtures and equipment as it shall deem desirable for the conduct of business. Tenant may paint the building improvements such colors as it may elect. Tenant shall have the exclusive right to paint and erect signs in and over the Premises. Personal property, fixtures and equipment used in the conduct of Tenant's business (as distinguished from fixtures and equipment used in connection with the operation and maintenance of the building improvements)placed on the Premises by Tenant or any predecessor of Tenant shall not become part of the realty even if nailed down or screwed or otherwise fastened to the Premises,and Tenant may remove any of said items at any time. Any damage caused by the removal of such property shall be repaired by Tenant at its expense. Section 6.03 Condition. Upon the expiration of the lease term or such earlier termination of this Lease, Tenant shall leave the Premises in good condition, ordinary wear and tear excepted. Tenant shall not be required to restore the Premises to the condition it was in at the commencement of the Lease and Landlord agrees to accept the Premises"AS IS"with such alterations,remodeling, additions, or new construction (if any) as may have been made by Tenant in accordance with the authorization contained in this Article. Tenant shall not be required to repair or replace any items of Personalty. ARTICLE VII INSURANCE Section 7.01 Property Insurance. From and after the Effective Date, Tenant agrees to procure and maintain with respect to the Premises standard property insurance covering losses included in the Insurance Services Broad Form Causes of Losses in an amount equal to one hundred percent (100%) of the insurable replacement value thereof(exclusive of the cost of excavations, footings below ground and foundations)and shall cause the Landlord to be named as an additional insured, with any such proceeds payable as respective interests may appear. Section 7.02 Liability Insurance. From and after the Effective Date,Tenant shall cause to be procured comprehensive general liability insurance with respect to the Premises in an amount not less than $2,000,000 per occurrence naming the Landlord as an additional insured. Section 7.03 Blanket Insurance. Tenant shall have the right to insure and maintain the insurance coverages required by this Lease under blanket insurance coverages covering other Premises so long as such blanket insurance policies specify a stated value for the Premises,comply with the amounts of insurance and the requirements provided hereunder. -5- Section 7.04 Policy Terms. All policies of insurance procured by Tenant shall contain endorsements providing as follows: A. Such insurance may not be materially changed,amended or canceled with respect to Landlord except after twenty(20)days prior written notice from the insurance company to Landlord, sent by certified mail. B. Tenant shall be solely responsible for the payment of all premiums under said policies and that Landlord or other parties required to be designated as named insureds or loss payees shall have no obligation for the payment thereof notwith- standing that such parties are named in said policies. C. Duly executed Certificates of Insurance, together with reasonably satisfactory evidence of payment of the premium thereof,shall be delivered to the Landlord with all renewals of such policies. Section 7.05 Waiver of Subrogation.Notwithstanding anything contained in this Lease to the contrary, each of Landlord and Tenant hereby waives all rights of recovery, claims, actions, or causes of action against the other for any loss or damage that may occur to the Premises, any improvements thereto,any personal property of Landlord or Tenant or any personal injury arising for any cause that(i) would be insured against under the terms of any insurance required to be carried hereunder;or(ii) is insured against under the terms of any insurance actually carried,regardless of whether it is required hereunder. The foregoing waiver shall apply regardless of the cause or origin of the claim, including but not limited to the negligence of a party or its agents,officers,employees or contractors. The foregoing waiver shall not apply to the extent that it invalidates any insurance coverage of Landlord or Tenant. Each party shall obtain any special endorsements required by its insurer to evidence compliance with this waiver. ARTICLE VIII BASIC INDEMNIFICATION AND ENVIRONMENTAL INDEMNIFICATION Section 8.01 Definitions. As used in this Lease, the following terms shall have the following meanings: "Damages" means any loss, cost, liability,claim,damage,fine,penalty,judgment,award, settlement, expense (including the cost of investigation and defense and reasonable attorneys' fees and expenses),whether or not involving a third party claim. "Environmental Law" means any Legal Requirement that requires or relates to(i)cleaning up pollutants or hazardous substances that have been released, preventing the threat of release or paying the costs of such cleanup, containment, remediation or prevention; (ii)making responsible parties pay private parties for bodily injury (including, but not limited to illness, disability, and death), personal injury, property damage (including trespass, nuisance, wrongful eviction, deprivation of use of real property or diminution in value thereof) resulting from the release of -6- pollutants or hazardous substances or materials; (iii)making responsible parties pay private parties, or groups of them,for damages done to their health or the environment or permitting self-appointed representatives of the public interest to recover for injuries done to public assets resulting from the release of pollutants or hazardous substances or materials; (iv) advising appropriate authorities, employees or the public of intended or actual releases of pollutants or hazardous substances or materials, violations of discharge limits of other prohibitions and the commencement of activities, such as resource extraction or construction; (v) preventing or reducing to acceptable levels the release of pollutants or hazardous substances or materials into the environment, (vi) reducing the quantities, preventing the release or minimizing the hazardous characteristics of wastes that are generated;(vii)protecting resources,and(viii)reducing to acceptable levels the risks inherent in the transportations of hazardous substances, pollutants, petroleum, oil or other potentially harmful substances. Without limiting the generality of the foregoing, the term "Environmental Law"shall include the: Comprehensive Environmental Response,Compensation and Liability Act,42 U.S.C. Section 9601, et seq.; Resource Conservation and Recovery Act, 42 U.S.C. Section 6901,et seq.; Federal Water Pollution Control Act, 33 U.S.C. Section 1251, et seq.; Clean Air Act, 42 U.S.C. Section 7401,et seq.;Toxic Substances Control Act, 15 U.S.C.Section 2601,et seq.; Safe Drinking Water Act,42 U.S.C.Section 300;the Federal Insecticide,Fungicide and Rodenticide Act,7 U.S.C. Section 136, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. 1801, et seq. "Environmental Liabilitv(ies)" means any Damages, obligations or other responsibilities arising under any Environmental Law. "Landlord Indemnified Persons" means Landlord and its directors, officers, agents, employees, insurers, shareholders, managers, members and affiliates. "Legal Requirement" means any federal,state, local,or municipal constitution,law,statute, ordinance,principle of common law, code, or regulation. "Tenant Indemnified Persons" means Tenant and its directors, officers, agents,employees, insurers, shareholders, managers, members and affiliates. Section 8.02 Basic Indemnification: Landlord to Tenant. Except for Environmental Liabilities (which are covered below), Landlord shall protect, indemnify and hold harmless the Tenant Indemnified Persons from and against:(i)any and all Damages and obligations of every kind and description,contingent or otherwise,arising from or related to the operation of the Store prior to the Closing Date;and(ii)any and all Damages resulting from any misrepresentations,breach of any representation, warranty or covenant, or nonfulfillment of any agreement on the part of Landlord under this Lease, or from any misrepresentation of or omission from any certificate or other instrument furnished by Landlord to Tenant pursuant to this Lease, or in connection with any transactions contemplated hereby. Section 8.03 Basic Indemnification: Tenant to Landlord. Except for Environmental Liabilities(which are covered below),and except as otherwise provided in this Lease,Tenant shall protect,indemnify and hold harmless the Landlord Indemnified Persons from and against:(i)any and all Damages and obligations of every kind and description,contingent or otherwise,arising from or related to the operation and management of the Store on,or subsequent to,the Closing Date through -7- the term of this Lease;and(ii)any and all Damages resulting from any misrepresentation,breach of representation,warranty or covenant,or nonfulfillment of any agreement on the part of Tenant under this Lease, or from any misrepresentation of or omission from any certificate or other instrument furnished by Tenant to Landlord pursuant to this Lease,or in connection with any of the transactions contemplated hereby. Section 8.04 Environmental Matters: Indemnification by Landlord. With respect to Environmental Liabilities, Landlord shall protect, indemnify and hold harmless the Tenant Indemnified Persons,and shall reimburse the Tenant Indemnified Persons,for any Damages arising from or in connection with any Environmental Liabilities based upon conditions existing at the Store at any time prior to the Closing Date. Section 8.05 Environmental Matters: Indemnification by Tenant. With respect to Environmental Liabilities, Tenant shall protect, indemnify and hold harmless the Landlord Indemnified Persons, and shall reimburse the Landlord Indemnified Persons, for any Damages arising from or in connection with any Environmental Liabilities based upon conditions first existing at the Store resulting from a new occurrence on, or subsequent to, the Closing Date. Section 8.06 Rent Abatement. If remediation is required at the Store due to an Environmental Liability based upon conditions existing at the Store at any time prior to the Closing Date,then,in such event,Base Rent,and other additional rent,shall be proportionately abated while remediation occurs based on the extent of interference with Tenant's use of the Premises. In the event, however, that said remediation materially interferes with Tenant's use of the Premises and said material interference continues(or is expected to continue)more than ninety(90)days,Tenant may, by written notice to Landlord,terminate this Lease. ARTICLE IX ASSIGNMENT AND SUBLETTING Section 9.01 Assignment and Subletting. Tenant may assign this Lease or sublet the whole or any part of the Premises without the written consent of the Landlord;provided,however,that any such assignment or sublease shall not release Tenant from the obligations of the Tenant under this Lease unless and then only to the extent the Landlord so consents in writing. -8- ARTICLE X CASUALTY AND CONDEMNATION Section 10.01 Destruction. If the Premises shall be damaged or destroyed by fire or other casualty required to be insured under insurance policies,then,upon receipt of the insurance proceeds, Tenant shall promptly repair or restore the Premises to substantially the condition thereof immediately prior to such damage or destruction. In the event of such a loss,this Lease shall remain in full force,but for each day that the Tenant is not able to operate its business on the Premises,a day shall be added to the end of the term wherein no Base Rent shall be due from Tenant to Landlord. Notwithstanding the foregoing,if any such damage is not reasonably repairable within one-hundred twenty(120)days,Tenant may elect to assign or pay over to Landlord all insurance proceeds payable as a result of said loss and terminate this Lease. Section 10.02 Condemnation. Should the whole or any part of the Premises be condemned or taken by a competent authority for any public or quasi-public use or purpose,each party shall be entitled to retain,as its own property,any award payable to it;provided,however,that in the event a single award is made on account of the condemnation,each party will then be entitled to take such portion of said award as may be fair and reasonable. In the event that any such taking materially interferes with the normal operation of Tenant's business, Tenant shall have the right to terminate this Lease at its option. ARTICLE XI SUBORDINATION AND ATTORNMENT Section 11.01 Attornment. In the event of the sale or assignment of Landlord's interest in the Premises or in the event of exercise of the power of sale under any mortgage made by Landlord covering the Premises,Tenant shall attorn to the purchaser and recognize such purchaser as Landlord under this Lease, provided said purchaser agrees to perform and be responsible for all of the obligations imposed upon Landlord in this Lease. Section 11.02 Subordination. This Lease and Tenant's interest hereunder shall be subject and subordinate at all times to any mortgage or other security instrument, including all renewals, extensions, consolidations, assignments and refinances of the same, as well as all advances made upon the security thereof, which now or hereafter become liens upon the Landlord's fee and/or leasehold interest in the Premises; provided, however, that in each such case, the holder of said mortgage or other security instrument shall agree that this Lease shall not be divested or in any way affected by foreclosure or other default proceedings under said mortgage or other security instrument, so long as Tenant shall not be in default under the terms of this Lease. -9- ARTICLE XII LANDLORD'S COVENANTS, PEACEFUL ENJOYMENT AND WAIVER Section 12.01 Landlord's Covenants. Landlord covenants that it has good and marketable title to the Premises in fee simple absolute and that the Premises is not subject to any leases, tenancies, agreements, encumbrances, liens, restrictions, or defects in title adversely affecting the Premises or the rights granted Tenant in this Lease. There are no restrictive covenants, zoning or other ordinances or regulations applicable to the Premises which would prevent Tenant from conducting its usual business. Landlord covenants that Tenant shall at all times have ingress and egress to and from the Premises to a public street or highway. Section 12.02 Peaceful Enjoyment. Landlord covenants that upon Tenant paying the rent herein reserved and performing all agreements to be performed as provided in this Lease, Tenant shall peaceably have,hold and enjoy the Premises for the term of this Lease free from interference, eviction, or disturbance by the Landlord or any other persons or legal entity whatsoever. Section 12.03 Landlord Lien Waiver. Landlord hereby waives any right it may have to a statutory or contractual landlord's lien against Tenant's property and disclaims any right to a security interest under the Uniform Commercial Code in Tenant's property. ARTICLE XIII EVENTS OF DEFAULT AND REMEDIES Section 13.01 Events of Default by Tenant. From the Effective Date of this Lease through and including its termination,the following shall constitute "Events of Default"by Tenant,to-wit: A. Failure by Tenant to make any payment of Base Rent or any other monetary payment required to be made by Tenant hereunder, whether to Landlord or to a third party, as and when due. B. Failure by Tenant to provide Landlord with reasonable evidence of insurance required under this Lease. C. Any other material breach by Tenant of the terms, covenants, conditions, or provisions of this Lease. Section 13.02 Landlord's Remedies on Default. Whenever any Event of Default by Tenant occurs and is continuing,Landlord,as specified below,may take any one or more of the following actions after the giving of thirty(30)days'written notice by Landlord to Tenant,but only if the Event of Default has not been cured within said thirty(30)days or if the Event of Default cannot be cured within thirty(30)days and Tenant does not provide assurances reasonably satisfactory to Landlord that the Event of Default will be cured as soon as reasonably possible: —10- A. Landlord may (but without any obligation to do so) cure such default and such expense shall be paid by Tenant to Landlord within ten (10) days after a statement therefor is rendered. B. Landlord shall have the right to (i) terminate this Lease upon the expiration of fifteen (15)days after written notice of such intent is given to Tenant, in which event the terms hereof shall expire and terminate with the same force and effect as though the date set forth in said notice were the dates originally set forth herein and fixed for the expiration of the term,(ii)re-enter the Premises either by force or otherwise and dispossess Tenant and/or other occupants of the Premises, Tenant agreeing that no such re-entry or taking possession of the Premises by Landlord shall be construed as an election on Landlord's part to terminate this Lease, such right, however, being continuously reserved by Landlord or (iii) perform any obligation of Tenant under this Lease and charge the costs of such performance to Tenant and Tenant shall pay such costs to Landlord within ten (10) days after receipt of an invoice therefor. C. In the event Landlord elects to re-enter the Premises whether or not the Lease is terminated, Landlord may, but shall not be obligated to, make such alterations and repairs as may be necessary in order to relet the Premises, and relet said Premises or any part thereof for such term or terms (which may extend beyond the term of this Lease) and at such rental and upon such other terms and conditions as Landlord in its discretion may deem advisable. Upon each such reletting all rentals and other sums received by Landlord from such reletting shall be applied, first, to the payment of any indebtedness other than Base Rent due hereunder from Tenant to Landlord; second, to the payment of any costs and expenses of such reletting, including reasonable brokerage fees and attorneys' fees and of costs of such alterations and repairs; third, to the payment of Base Rent and other charges due and unpaid hereunder;and the residue,if any,shall be held by Landlord and applied in payment of future Base Rent and other charges as the same may become due and payable hereunder. D. Should Landlord at any time terminate this Lease for any Event of Default, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such default,including the costs of recovering the Premises, reasonable attorneys' fees, and including the worth at the time of such termination of the excess,if any,of the amount of Base Rent reserved in this Lease for the remainder of the stated term over the then reasonable rental value of the Premises for the remainder of the stated term discounted to present value at the rate of five percent (5%) per annum, all of which amounts shall be immediately due and payable from Tenant to Landlord. E. Landlord acknowledges that it has a duty to mitigate its damages. -11- Section 13.03 Events of Default by Landlord. From the Effective Date of this Lease through and including the expiration of its term, the following shall constitute "Events of Default" by the Landlord, to-wit: A. A breach of its covenant of peaceful enjoyment set forth in this Lease. B. Failure by Landlord to substantially observe or perform any covenant,condition, obligation or agreement on its part to be observed or performed under this Lease. Section 13.04 Tenant's Remedies on Default. Whenever any Event of Default by Landlord occurs and is continuing, Tenant, as described below, may take any one or more of the following actions after the giving of thirty(30)days'written notice by Tenant to Landlord,but only if the Event of Default has not been cured within said thirty(30)days or if the Event of Default cannot be cured within thirty (30) days and the Landlord does not provide assurances reasonably satisfactory to Tenant that the Event of Default will be cured as soon as reasonably possible: A. Tenant may (but without any obligation to do so) cure such default and such expense shall be paid by Landlord to Tenant within ten (10) days after a statement therefor is rendered. B. Tenant may terminate this Lease. C. Tenant may utilize any and all other remedies or actions at law or in equity available to it. ARTICLE XIV MISCELLANEOUS Section 14.01 Holding Over. If Tenant holds over or remains in possession of the Premises after the expiration of the lease term,such holding over or continued possession shall,if rent is paid by Tenant and accepted by Landlord, be considered a month-to-month tenancy which may at any time be terminated by either party by giving the other party thirty(30)days' advance written notice. Section 14.02 Notices. Any notice,demand or other communication required or permitted by this instrument shall be given in writing and shall be deemed to have been given and received in all respects when personally delivered, when sent via prepaid overnight courier, when sent by facsimile transmission with confirmation of completion of the transmission, or three(3)days after deposited in the United States mail,certified mail,postage prepaid,return receipt requested,in each case addressed to the respective parties at their addresses (or facsimile numbers) set forth below; provided, however, that notice of change in address shall be effective only upon receipt of written notice thereof: —12— IF TO LANDLORD: Ashworth at 60th, L.C. 6400 Westown Parkway West Des Moines, IA 50266 TEL: (515)457-6269 FAX: (515)457-6179 IF TO TENANT: Kyle J. Krause, Manager Kum &Go, L.C. 6400 Westown Parkway West Des Moines, IA 50266 TEL: (515)457-6219 FAX: (515)457-6179 With copy to: James J. Brandt, General Counsel Kum& Go,L.C. 6400 Westown Parkway West Des Moines, IA 50266 TEL: (515) 457-6269 FAX: (515)457-6179 Section 14.03 Memorandum of Lease. The parties agree to execute and record a Memorandum of Lease to serve as notice to the public of the existence of the provisions of this Lease,and the rights and interest held by Landlord and Tenant by virtue thereof. Tenant shall pay all costs of recording. Section 14.04 Counterparts. This Lease may be executed in any number of counterparts, each of which shall constitute one and the same instrument. Section 14.05 Titles and Captions. All captions and headings contained in this Lease are for convenience only and shall not be used in the interpretation or construction of this Lease. Section 14.06 Entire Agreement. This Lease, including all exhibits and schedules(if any) attached hereto,constitutes the entire agreement between the parties and supersedes any and all prior agreements between them relating to the subject matter hereof, and may not be amended except in writing signed by the party to be bound. Section 14.07 Governing Law. This Lease shall be governed and construed in accordance with the laws and public policies of the State of Iowa. Section 14.08 Binding. This Lease shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. -13- IN WITNESS WHEREOF,the parties hereto have caused this Lease to be executed all on or as of the day and year first above written. ASHWORTH AT 60TH, L.C., an Iowa limited KUM & GO, L.C., an Iowa limited liability liability company company By: .. r3 ._s-"" By: its: 1.4,o v.+�;c e _...w.�.._M . Its: v...4c P. oaul ' -14- 111111111111111111111111111111111111111111111111311111 089 3462089 03/15/2007 11:37A Weld County,CO / 1 of 1 R 6.00 0 61.50 Steve Moreno Clerk d Recorder 1f WHEN RECORDED RETURN TO: V Ashworth at 60th,L.C.,a Iowa limited liability company 6400 Westown Pkwy. SDF$61.50 West Des Moines, IA 50266 WARRANTY DEED THIS DEED,dated March 14, 2007,between Lyons 66 Pacific,LLC,a Colorado limited liability company of the County of Weld and State of Colorado,grantor(s),and /Ashworth at 60th, L.C.,a Iowa limited liability company, whose legal address Is 6400 Westown Pkwy., West Des Moines, IA 50266, of the County of 17cr JQ,S and State of Iowa,grantee(s): WITNESS, that the grantor(s), for and In consideration of the sum of Six Hundred Fifteen Thousand and 00/100 Dollars ($615,000.00), the receipt and sufficiency of which is hereby acknowledged, has granted, bargained, sold and conveyed, and by these presents does grant, bargain, sell, convey and confirm, unto the grantee(s), his heirs and assigns forever, all the real property, together with Improvements, If any, situate, lying and being in the County of Weld and State of Colorado, described as follows: Lot 1, Lyons 66 Pacific Commerce Park, County of Weld,State of Colorado also known by street and number as: Vacant Land,CO TOGETHER with all and singular the hereditaments and appurtenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, Issues and profits thereof, and all the estate, right, title, interest, claim and demand whatsoever of the grantor(s), either in law or equity, of, In and to the above bargained premises,with the hereditaments and appurtenances; TO HAVE AND TO HOLD the said premises above bargained and described, with the appurtenances, unto the grantee(s), his heirs and assigns forever. The grantor(s), for himself, his heirs, and personal representatives, does covenant, grant, bargain and agree to and with the grantee(s), his heirs and assigns, that of the time of the ensealing and delivery of these presents, he Is well seized of the premises above conveyed, has good,sure, perfect, absolute and indefeasible estate of inheritance, In law, in fee simple, and has good right, full power and lawful authority to grant, bargain,sell and convey the same in manner and form as aforesaid,and that the same are free and clear from all former and other grants, bargains, sales, liens, taxes, assessments, encumbrances and restrictions of whatever kind or nature whatsoever, except general taxes for the year 2007 and subsequent years, and except easements,covenants, conditions,restrictions,reservations,and rights of way of record,if any. The grantor(s) shall and will WARRANT AND FOREVER DEFEND the above-bargained premises in the quiet and peaceable possession of the grantee(s), his heirs and assigns, against all and every person or persons lawfully claiming the whole or any part thereof. The singular number shall include the plural,the plural the singular,and the use of any gender shall be applicable to all genders. IN WITNESS WHEREOF,the grantor has executed this deed on the date set forth above. Lyons 66.P,a ifIc,LLC,a rado limited liability company 7/Ujti, B .John H. Davis ts: Manager STATE OF COLORADO )SS COUNTY OF Larimer 7ll ��//��,,n.l�� The foregoing instrument was acknowledged before me on/7///////le/4I 214 by John H. Davis as Manager of Lyons 66 Pacific, LLC,a Colorado limited liability company. Witness my hand and official seal. 2.,,,/y;1 My Commission Expires: 31310V "Notary Public e It PO . NANCY , T�pZ SS WALLER I rllcaa t .Op File No.:TNFC0001055 WD Indv to Indv-DOC 3/13/07 9:28 AM 111111111111111111111111 II I111111111111III11111 IIII1111 3 066 3462088 03/15/2007 11:37A Weld County,CO 1 of 1 R 6.00 0 0.00 Steve Moreno Clerk d Recorder WHEN RECORDED RETURN TO:/ Ashworth at 60th,LC.,a Iowa limited liability company 6400 Westown Pkwy. West Des Moines,IA 50266 STATEMENT OF AUTHORITY 1. This Statement of Authority relates to an entity named Ashworth at 60th,L.C.,a Iowa limited liability company. 2. The type of entity is a _ Corporation Non-Profit Corporation _ General Partnership Limited Partnership _ Limited Partnership Association Registered Limited Liability Partnership _ Registered Limited Liability Limited Partnership Unincorporated Non-Profit Association _ Government,Governmental Subdivision or Agency United Liability Company Trust Business Trust Other 3. The entity Is formed under the laws of So"4 4. The malting address for the entity Is 6400 Westown Pkwy.,West Des Moines,IA 50266 5. The name and position of each person authorized to execute Instruments conveying,encumbering,or otherwise affecting title to real property on behalf of the entity is Kyle Krause as Manager 6. (Optional)The authority of the foregoing person(s)to bind the entityZ is not limited❑Is limited as follows: 7. (opeenal)Other matters concerning the manner In which the entity deals with interests In real property: 8. This Statement of Authority is executed on behalf of the entity pursuant to the provisions of Section 38-30-172,C.R.S. Executed this (3a I. day of MOrci, 2007. Ashworth at 60th.L.C.,a Iowa limited liability company J By:Kyle Krause It's:Manager STATE OF Sou. )SS COUNTY OF 0wde5 ) The foregoing instrument was acknowledged before me on ,41'ya4 IS,tool by Kyle Krause as Manager of Ashworth at 60th,L.C.,a Iowa limited liability company ///777^ Witness my hand and official seal. I.- / My FompiIssion Expires: Notary Pu lc l//! 11 141 Inn ♦ CHARLES W.CAMPSELLIR I ' . .SFOa tunerHI76t9 g, My Cammliskil M20Egra File No.:TNF00001055 3/12/07 12:05 PH Statement or Autt,rty-OOC STATE OF COLORADO COLORADO DEPARTMENT OF REVENUE of Liquor/Tobacco Enforcement Division 0Busile ness Location O 1881 Pierce Street,Suite 108A• Lakewood,Colorado 80214 Phone 303.205.2300 FAX 303.205.2341 Bill Owens E-mail:LED@spike.dor.state.co.us Governor Website:www.revenue.state.co.us/liquorenforcement M.Michael Cooke Executive Director Matt D.Cook October 20, 2006 Division Director Kum & Go LLC Kum & Go 6400 Westown Parkway West Des Moines IA 50266 Re: Kum & Go LLC d/b/a Kum & Go Dear Sir or Madam: This is to advise you that the State Liquor Enforcement Division has, at your request, created a "master file" for the above-listed applicant. As of the date of this letter our master file includes the following items which you have submitted: 1. Individual History Records (Form DR-8404) for the following persons: Kyle J. Krause 2. Fingerprint cards bearing the names and birthdates of the person(s) listed in paragraph 1 have been submitted by us to the Colorado Bureau of Investigation. The FBI and CBI have checked the prints and reportedly found no record of any criminal history. 3. Certificate of Authority or a Certificate of Good Corporate standing from the Colorado Secretary of State which indicates that Kum & Go is a corporation authorized to do business in Colorado. DR 8481 (12/14/04) Kum & Go LLC D/B/A Kum & Go Page 2 You must check with the local licensing authority to determine what documents they may require to process your application. Please feel free to provide them with this letter, as many local authorities will not require you again to submit fingerprint cards to them if you have already submitted such documents to the State Liquor Enforcement Division. This letter will serve to inform the local authorities exactly which documents you have already submitted to the State Enforcement Division. Finally, once the local authority has approved your application, it must be sent to the Liquor Enforcement Division. The local authority need not send change of corporate structure information previously reported to the Liquor Enforcement Division, as listed in and approved by this letter. The only documents which are needed for a new or transfer of ownership application by the Division are: ❑ 1. The approved application signed by the local authority; ❑ 2. The appropriate fees; ❑ 3. A copy of this letter; ❑ 4. Proof of possession of the premises; ❑ 5. A diagram of the licensed premises; ❑ 6. Completed form DR 8442, if manager's registration is required. Sincerely,yo. av Ac; Laura Harris Director of Licensing Kum&Go2.mas.ka DR 8404-I (01/06/05) COLORADO DEPARTMENT OF REVENUE LIQUOR ENFORCEMENT DIVISION 1881 PIERCE STREET RM 108A DENVER CO 80261 INDIVIDUAL HISTORY RECORD To be completed by each individual applicant, all general partners of a partnership, and limited partners owning 10% (or more)of a partnership; all officers and directors of a corporation, and stockholders of a corporation owning 10% (or more) of the stock of such corporation; all limited liability company MANAGING members, and officers or other limited liability company members with a 10% (or more)ownership interest in such company and all managers of a Hotel and Restaurant or a Tavern License. NOTICE: This individual history record provides basic information which is necessary for the licensing authority investigation. All questions must be answered in their entirety or your application may be delayed or not processed. EVERY answer you give will be checked for its truthfulness. A deliberate falsehood or omission will jeopardize the application as such falsehood within itself constitutes evidence regarding the character of the applicant. 1.Name of usiness Cs ija F 2.Your II C Name( t,first,middle) X ,( e 6. 3.LisXE) t y other names you ve used. /i, li l/J Joy . 4.Mailing addrdss(if different froti residence) Home Telephone q7:1--53 /o/o 5.List all residence addresses below. Include current and previous addresses for the past five years. STREET AND NUMBER CITY,STATE, ZIP FROM TO Current A toS/ ge2(nl ( ,q/. %Ed- & 4' d, 0 . a000 4t'serif- Previous 6.List all current and former employers or businesses engaged in within the last five years(Attach separate sheet if necessary) NAME OF EMPLOYER ADDRESS(STREET, NUMBER,CITY,STATE, ZIP) POSITION HELD FROM TO Je,e/y7evs__. 455' 6. / v ,/ Long/mg-Pa .(_.yo,,- %-/vi 4/p9 /6h//5 /360 5. iko-e.,-.) 1,0179 & /95rn f,/9 . /a8' 7.List the name(s)of relatives working in or holding a financial interest in the Colorado alcohol beverage industry. NA E OF RELATIVE RELATIONSHIP TO YOU POSITION HELD NAME OF LICENSEE 8.Have you ever applied for,held,or had an interest in a State of Colorado Liquor or Beer License,or loaned money,furniture or fixtures,equipment or inventory,to any liquor or beer licensee?If yes,answer in detail. iii Yes 'No 9.Have you ever received a violation notice suspension or revocation,for a liquor law vi ation,or have you applied for or been denied a liquor or beer license anywhere in the U.S.?If yes,explain in detail. ❑Yes No 10.Have you ever been convicted of a crime or received a suspended sentence,deferred sentence,or forfeited bail for any offense in criminal or military court or do yo any charges pending?Include arrests for DUI and DWAI. (If yes,explain in detail.) ;❑Yes No 11.Are y rrently under probation(supervised or unsupervised),parole,or completing the requirements of a deferred sentence? (if yes,explain in detail.) ❑Yes ' No 12.Have o ever had any STATE issued licenses suspended, revoked,or denied including a drivers license? (If yes,explain in detail.) ❑Yes 1 No PERSONAL AND FINANCIAL INFORMATION Unless otherwise provided by law in 24-72-204 C.R.S.,information provided below will be treated as CONFIDENTIAL. Colorado liquor licensing authorities require the following personal information in order to determine your suitability for licensure pursuant to 12-47-307 C.R.S. 13a.Date of Birth/ 'b.Social/ K (_ , / mo j es ❑No e.rrrr Naturalizzed,State where f.When 'g.Name of District Court h.Naturalization Certificate Number I.Date of Certification j.If an Alien,Give Alien's Registration Card Number k.Permanent Residence Card Number f!H igfit.. -m.Weight� jn.H r Color o.. a Color p.Sex q..Racy I r.Do you have a current Driver's License?If so,give number and state I /5O .4/7 L.4ri-i F ; ex,/ 1 es ❑No 14.Financial Information. a.Total purchase price$__. /V ._ _ __ (if buying an existing business)or investment being made by the applying entity,corporation, partnership,limited liability company,other$._...___......_ . b.List the total amount of your inves en in his business including any notes,loans,cash,services or equipment,operating capital, stock purchases and fees paid$ . ..... ......... c.Provide details of Investment. You must account for the sources of ALL cash(how acquired).Attach a separate sheet if needed. Type:Cash,Services or Equipment Source:Name of Bank;Account Type and Number Amount ifli 6- d.Loan Information(attach copies of all notes or loans) Name of Lender and Account Number Address Term Security Amount ii/I-;-- - 15.Give name of bank where business account will be maintained;Account Name and Account Number;and the name or names of persons authorized to draw thereon.rl Oath of Applicant I declare under penalty of perjury in the second degree that this application and all attachments are true,correct,and complete to the best of my kn wledge. Auth ' ed Sig tine i JQ Title/� 1-174ie Date QLay 7//e� 9 OFFICE OF THE SECRETARY OF STATE OF THE STATE OF COLORADO CERTIFICATE I, Mike Coffman, as the Secretary of State of the State of Colorado, hereby certify that, according to the records of this office, KUM& GO, L.C. is an entity formed or registered under the law of Iowa has complied with all applicable requirements of this office, and is in good standing with this office. This entity has been assigned entity identification number 20011042768 . This certificate reflects facts established or disclosed by documents delivered to this office on paper through 08/07/2008 that have been posted, and by documents delivered to this office electronically through 08/14/2008 @ 07:10:54 . This certificate does not reflect whether the entity is transacting business or conducting activities in Colorado under an assumed name. I have affixed hereto the Great Seal of the State of Colorado and duly generated, executed, authenticated, issued, delivered and communicated this official certificate at Denver, Colorado on08/14/2008 @ 07:10:54 pursuant to and in accordance with applicable law. This certificate is assigned Confirmation Number 7157738 w. Secretary of State of the State of Colorado ****************************************End of Certificate**************************************** Notice:A certificate issued electronically hom the Colorado Secretary of State's Web site is fully and immediately valid and effective. However, as an option,the issuance and validity of a certificate obtained electronically may be established by visiting the Certificate Confirmation Page of the Secretary of State's Web site, httfilfivww.sos.state.co.us/biz/CertificateSearchCriteriado entering the certificate's confirmation number displayed on the certificate, and following the instructions displayed. Confirming the issuance of a certificate is merely optional and is not necessary to the valid and effective issuance of a certificate. For more information,visit our Web site, http:Owww.sos.state.co.us/click Business Center and select"Frequently Asked Questions." CERT GS_T Revised 01/02/2007 ut:u-oi-euua RD u3:52 P11 KRAUSE GENTLE C0RP, FAX NO, 15152239370 P. 03 r�, RESTATED ARTICLES OF ORGANIZATION w .fi OF F )/ 5,r25 g KUM & GO, L.C. F TO: THE SECRETARY OF STATE OF THE STATE OF IOWA Pursuant to Section 1102 of the Iowa Limited Liability Company Act,the undersigned adopts the following Restated Articles of Organization for the company: ARTICLE L NAME The name of the limited liability company is ICUM&GO,L.C. (the "Company"). ARTICLE U. REGISTERED OFFICE AND REGISTERED AGENT The street address of the Company's current registered office in the State of Iowa is 6400 Westown Parkway,West Des Moines,Iowa 50266,andthe name of its current registered agent at said address is James J. Brandt. ARTICLE III. PRLNCIPAL OFFICE The street address of the Company's principal office is 6400 Westown Parkway,West Des Moines,Iowa 50266. ARTICLE TV. PERIOD OF DURATION The period of the Company's existence shall be perpetual. +1 A .-2003 WED 03:52 P11 KRAUSE GENTLE CORP. FAX NO, 15152239370 Pi 04 ARTICLE V. MANAGER MANAGED The business and affairs of the Company shall be governed by managers elected by the members in the manner described in the Company's operating agreement. ARTICLE VI. , NON-LIABILITY AND INDEMNIFICATION A. A manager of this Company shall not be personally liable to the Company or its members • for monetary damages for breach of fiduciary duty as a manager,except for liability(i)for any breach of the manager's duty of loyalty to the Company or its members,(ii)for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for a transaction from which the manager derived an improper personal benefit or a wrongful distribution in violation of Section 807 of the Iowa Limited Liability Company Act. B. Each person who is or was a manager of the Company(and the heirs,executors,personal representatives, administrators,or successors of such person) who was or is made a party to, or is involved in any threatened,pending or completed action,suit orproceeding,whether civil,criminal, administrative or investigative, by reason of the fact that such person is or was a manger of the Company or is or was serving at the request of the Company as a manager,director,officer,partner, trustee,employee oragent of another limited liability company,corporation,partnership,joint venture, trust,employee benefit plan or other entetprise("Indemnitee"),shall be indemnified and held harmless by the Company to the fullest extent permitted by applicable law,as the same exists or may hereafter be amended. In addition to the indemnification conferred in this Article,the Indemnitee shall also be entitled to have paid directly by the Company the expenses reasonably incurred in defending any such proceeding against such Indemmtee in advance of its final disposition,to the fullest extent authorized -2- ut:u-it-zuui itt) 03:52 P11 KRAUSE GENTLE CORP. FAX NO, 15152239370 P. 05 f ` by applicable law, as the same exists or may hereafter be amended. The right to indemnification conferred in this Article shall be a contract right. C. The Company may, by action of the managers,provide indemnification to such of the officers,employees and agents of the Company to such extent and to such effect as the managers shall determine to be appropriate and authorized by applicable law. D. The rights and authority conferred in this Article shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the articles of organization or operating agreement of the Company,agreement,vote of members or disinterested managers, or otherwise. E. Any repeal or amendment of this Article by the members of the Company shall not adversely affect any right or protection of a manager or officer existing at the time of such repeal or amendment. ARTICLE VII, EFFECTIVE DATE AND TIME The effective date and time of this instrument shall be January 1,2004,at 12:01 a.m.,Central Standard Time. ARTICLE VIII. $UPERSEDES ORIGINAL AND ALL AMENDMENTS The duly adopted Restated Articles of Organization set forth herein supersede the original Articles of Organization and all amendments to them. -3- r81.e vEu-ii-zuus WED 03;52 PM KRAUSE GENTLE CORP. FAX NO. 15152239370 P. 06 ARTICLE DC. CERTIFICATE OF ADOPTION The Restated Articles of Organization were duly adopted by the members and the managers of the Company on December 31,2003. IN WITNESS WHEREOF,the undersigned has caused this instrument to be executed on this 31st day of December, 2003. KUM dc GO, L.C. By: c") J es J.�ndt, Its Secretary/Manager FILED IOWA SECRETARY OF STATE jficl 4 W368271 { �• RESTATED OPERATING AGREEMENT OFKUM & GO L,c. (an Iowa limited liab nity company manager mod) .P* f: TABLE OF CONTENTS ARTICLE I • DEFINITIONS -1- ARTICLE II FORMATION OF COMPANY AND PURPOSE -4- 2.1 Formation -4- 2.2 Name -4 2.3 Principal Office -4• - 2.4 Registered Office and Registered Agent -4— 2.5 Tenn -4- 2.6 Purpose of Company -4- 2.7 Units of Initial Members .4- . q ARTICLE III RIGHTS AND DUTIES OF MANAGERS . 3.1 Manage -5- 3.2 Nu fiber, lnitfdl''Managers.Tenure and Oualifications -6- 3.3 Certain Powers of Managers _ 3.4 No Member Power to Bin& -6 3.5 Liability for Certain Acts . -7- 3.6 Managers Have No Exclusive Duffle Company -7- 3.7 Indemnity-of the MaiiA„ecs 3.8 Resignation -8- 3.9 Removal -8- 3.10• • Vacancies -8- 3.11 Salaries -8- 3.12 Officers -8- -8- ARTICLE IV RIGHTS AND OBLI.Q QNS OF MEMI}ERS 4.1 Limitation of Liability o- 4.2 List of M ers emb .0- 4.3 Company Books -9- 4.4 No Right to Withdraw and No Demand of Member Capital 9 4.5 Waiver of Action for Partition 4.6 Voting of Units -9- — -.. - _.... I'roxios 9 4.8 Election of Managers 4.9 Ouorunq -y- -i0- ii t r ---- 4.10 Action Requiring Member Approval ` 4.11 Meetings 10- 4.12 Place of Meetings 10- 4.13 Notice of Mer ngg • • -10- -11- 4.14 Meeting of aII 1Vfe ttieis 4.15 Record Date -11- w : 11- 4.16 Action by Members Without a.Meetina Telephonic:Meetings . . . . . . -11- 4.17 Waiver of Notice . '; ARTICLE V CONTRIBUTIONS TO THE COMPANY. -11- CAPITAL UNITS AND CAPITAL ACCOUI '� :.; . . . 5.1 Capital Contributions 11- 5.2 S'eiparate Capital Acco -12- 5.3 Units 12- 5.4 Classes of Uni -12- 5.5 Certificates Units ., � L ., -12- afes of IYa��ehtotttetest . . . -13- ARTICLE VI ALLOCATION4.AND INCOME TAX- 6.1 Distributions -14 6.2 Limitation ti '� -14- 1alRon Distnbuttons -14- 6.3 AccquDttnng EtJBc g 6.4 Interest on nd R urn 14 of apitat �onhurine,c 6.5 Loans to C •• ""�` 14 6.6 Returns o • -14- 6.7 Tax Matters Member 15- 6.8 Allocation of Profits and Losses s -15- 6.9 No Right to Withdraw and No Demand of Member Capital -17- ARTICLE VII T_ NSFERAATT7TV 7.1 Assignment of Interest -17- t of Assignee -17- 7.2 Right gnee to Become a Substitute Member _17- prohibition on Certain Transfers -17- ARTICLE VIII ADDITIONAL AND SUBSTITUTE MEMBERS 17- 3.1 ti.ti.gn Qf New Members,_._ 17 err -------- -- 17 ---- iii 1� i • ARIICLE DISSOLUTION ANP TERMINATION I8. . . . 9.1 Djssolution -18- 9.2 Payment Unon Redemption of Membership Interest -18- 93 Articles of Dissolution( . . . . . . . 9.4 Winding Un -18 5" SaboC -18- e' CQntraets . c'. 9.6 Proceeds of Liquidation( -19- ARTICLE X 1vIISCELLANEOUS.PROVISIO _ 19- 10.1 Notices -19- 10.2 Books of Account and Recce -19- 10.3 Application of Iowa Law -20- 10.4 Execution of Additional Instruments . _°- 10.5 Construction 20- 10.6 I adi esn -20- 10.7 Waivers 10.8 Rights and Remedies Cumulative 20- 10.9 S.everability 10.10 Heirs,Successors and Assiens 20 gyp_ 10.11 Creditors. . . . . . . . . . 10.12 Counterparts Za 10.13 Entire resit -21- 10.14 Non-Disclesure of Confidential DiselC ac 21_ 10.15 Facsimile .. . . . . . . . . tr .,' -`. iv w Kum& co,L.C. ARTICLE DEFINITIONS. The following terms used in this Operating Agreement shall have the following meanings (unless a different meaning clearly appears.from the context): o (a). "MdittonaLMember"shall mean•anny;,Person or lttity,who or which is admitted to the Company-as an;Additional Member pursuant to tins OperatingAgreement. (b) "Cauita4Aceet ett"shallmean,with respexticanyMember,the initial Capital Contribution. made, by sucIttAirenaber deductions allocated to such Member, (ii) cleereasb n°.amountt° l losses h or Liquidation Proceeds or other property made to such Member and(iii)rt ble liabilitiesC of Net Me.�nherassumed.byth ( ) any profits af llocated to such Member,(ii)any subsequent Capital Cont bons made by such) y (iii) ey liabilities of the Company that are assumed by such Member. Capital any m0ntaIP ip aecor nee , thePtovi Capital Accounts shall be SecriolL' : arid,to the`extent notinconsisteattherewith,geaeraII Ling of the Regulet lations Account balances shall be determined as of the last ddaaypofof the fiscal year inmwhich a�salle refits,arcing, liquitlAtiortootFfs,b4PliOt to diSi disposition resulting in the gain being alloca,ted _ t weeds of the sale or other(c) _ "Qujunantnibosuc shall_eorihii.... to the - mean„-with, to each-Member,. any capital ofthe Comparry m cask or*fair-marIces value a contributed by a Member whenever made "In tial, �a e initial contribution to the Capital of the pursuant to this r 'rtaean the qty Pmt th�QpAgreeraeat. (d) "Code" shall mean the Internal Revenue Code of 1986 or corresponding provisions of subsequent superseding federal revenue laws. (e) "conflux" shall refer to SUM& GO, L.C. (f) Waite shall mean any general partnership, liability company,corporation,joint venture,trust,business trustcoo d partnership, limited cooperative or association. (g) "Final Cani 4cattut" shall mean an amount,equal to the Member's Restated Capital Account as of the date of dissolution. "Restated CanitaLAce mt shall mean a Member's Ca ital Account after it rev nation-oftheCompany'spzuperryinaccordancewithSection 1:704-l(b 3) ' Regulations in connection with: )(�)(ivl(�ofthe -1- gum&Go,L.C. (1)the making of an additional Capital Contribution by an existing Member or by a new Member, or (2)the liquidation ofafotnrerItt nber'sInterestincidenttothedissolutionof the Company. The fair market value of the`Coinpatirs•propert3, shall be determined in accordance with Section 1.704-I(b)(2)(iv)(h)of the Regulations,if the Members and their.successors._anel .assigns haves re rii ;intereats to satisfy the Reggae:Was- Q se;tire fait ltet-cable*attliit irmpai 9'i property shall be determined by a qualified,independent appraiser selected by the assigning Member or by-ehe.8rr£mer Memk er(or th efoameic o€at lean fear and assigns)$om a list fiedr ependent "provided&by the nonassigning or 91), 't `�' shall mean the Cbm ny"s frseai calendar,yeat Y wiirch shall be the "Itttt L e shagmean A gleeandi ttatrseHOldhigs, Ing ; "shall meanttherinrttatmembers bf the-company whose names and signatures appear tit the ' �> 'pgg,E'he,eiC. k{ltj " +shaiPmean the outstan U "gpE g"m Units (or^' eitia h&hictore exch�ed by a s fl: any, which are OPeratifig-Agreendertt saidEiterest representing theliferakettpiereentage shmtter dtiter"defined sharejcif the•Campaay's'businesa, assets, profits and losses. (1) "Iowa Ace"shall mean the Towatimited 490A of the Code of Iowa, as amended.. Liability Company Act Chapter (m) ["shaU mean one ormore managers elected bythe Members pursuant to this® a.7.- ngAgreementand the'IowaAct. Thepresentmana s are WillfamA.Krause and Kyler f; Krause.- (n) "Make'shall mean each ofthe Initial Ivfernbers;AdditionalMembers,and Substituted Members:who-are, as of'a given time, a member of the Company. (o). "Net Distributable Cur shall mean all cash and funds-received by the Company(other than funds received as Capital Contributions or as Net Liquidation Proceeds r . Kum&Go,L.C. by the Company)less the sum of the following to the extentmadefrom such cash and funds received by the Company(butnet to the extent made from other sources,including-without limitation from Capital.Contributions,NetLiquidation Proceeds orcash by the Company):(1:) 11 principal andint stpaa sonindebtd of e yard all other sums paid to lenders; diress°$�aC`�Pmtn 5) incurred. (2) all cash expenditures (including capital expenditures) incident to the operation of the Compa r °eagtiiit additions.thereto as the Ivrembeta shall such cash reserves and Company. a amadvtsable'ai�d%n the best interests of the (p) "NebL.i<.sk. .,.-,� ----,•shall Wean the mount of money the amount of any indebtedness due to the principal distribution) of any and all otherthe-Company the�irmaPl>tefvaitro"(as'0€Ttte'date of Company, property, distributed to the Members in liquidation of the P y,reduced by any liabilities Of the'Company that are assumed by such Members or which are secured by any property that is distributed by the Company to such Members. (q) Sialtaik" shall mean,for each Fiscal Year,the income and gains of the Company deter in accordance with ace ounstagprinciples to year arid information as repret rrrr file ly,or inorted,.separate -.the a* ppropria on the acarWstentLya Comp year rom federal income tax under the Code.eerat hrcutiie tai p � any indite e�ctim S (r) "Diglastatu shadiest,for eachl iscnl Dear,the lossentatdeductions of the Company dereaninedin accordance with accounting principles consistently applied from year to-year and as reporteskseparately aria the aggregate;as appropriater infwon tax.ce tuagtaled: Waalincome f an rein Company's deductihis.in computing its taxable.income and n ox u under the Code. P�Per1Y'chargeable to capital account (s) "Qaustkittammtur shall meastt<tis: executed and as art fmm; to time. &Agreement,as originally (t) "Q ni alma T'^`al1888"shall mean those expenses incurredin connection with the:formation of the Cowpany. (u) "range shall mean any individual or Entity, and the heirs, administrators; legal representatives, successors, and assigns.of such " executors, context so admits. > an." where the (v) " " shall mean the Federal Income Tax Regulations, including tem o v -3- • , . - - Knm&Go,L.C. (w ,;. -"Reser'aec abailIgennt-widtreallo0t to air rued Period',funds.set aside or amounts allocated*hag such pelted to reserves which shall be maintained in'amounts deemed sufficient 4w wodcinging capital and tdpaytaxes4 Insurance,debtservlce,or other costs or.expenses ncidentf 91 Ow skwperalaiwOr.aperaticn of the Company's business. • • (a.), "Substitute?flambee', shalt mean any Persona or Emit?who or which is admjneei.to,the Company as a,SubstitnteMemberpitrsiani ttrt,hieOpet ng'i gieement. (y) "Units" shall mean the units of ownership as defined in this Operating mpany>to. ra in:e ^h*vgrttrrcontributions, which AgreemenE.tsaued..b?s;the Co repEesent the.Membes'a Interesa la;the:Compswy: °, FORMATION OF COMPANY AND PURPOSE 2,.1 Fo of. . on. As,et-•NevembertilatL9ftk>the Company was:organizeelias an Iowa limited liabitityccompaey,andel.and ppattatagatoAte'Iowa/Act.. the effective dam at the"original operating ment...was-Novewbex I&Il4.547.-,-Thteffxetivewe .o$disoOpenting Agreerhent (as restated)is January 1,2004. ?2, .: .Acme0 the GbmpanyislgThil k 24 - irtcipal'Offis „ The g ipaS•office of than Coapanysliall be 0400 Westown Paal w IONS 5f044. eonapaan t> `IbCatC'it8 p}aCCx(*ruthless and reghgeredi offica•at anyothaplaceorplaces emit nuty fora tints.hut t:adv ble 2.4 Registered Office andReeistered Agent The Company's registered office shall be at the office of iteragistcred agent ar kWed .w wl W*..li€ Ha . roes,Iowa 50323,and the name of its initial registered agent at such addicts iaJs 'Tia 25 Lam. The term-of the Company shalt!berpexpe turil;Wiliam the Company is earlier dissolved in accordance with either the provisions of this.Operaiing Agreement orthe Iowa Act 2.6 Purpose of Company. The purpose of the-Company shall-lie to engage in any lawful business or businesses and,to engage in all other activities necessary; customary, convenient, or incident thereto. 2.7 Units of Initial Members. The originaiMembers of the Company and theirrespecuve Interps s e listed on.SrherInl •"a -4- t . . \ • Bum&Go,L.C. ARTICLE In • RIGS ANTI]]j]' S OF MaNa r7n e 3.1 aita ent. The business'and affairs of the Cb tt mP�Y shall be tmanagedCotr o Manager or Managers: Bach,Mas f the business of the Company liarticipate in the direction;management and Control of to.the best o€his ability The follovvingprocedbres shall apply with respect to the conduct cif ineetings and the management of the Company by the Managers:- (a) A majority(tithe total number&Managers fixed.by,or in the niatinerprovided in,theArtietegof ttransaction Iof ebusinessO�of lionthe an � tingAgreementshallconstituteaquonimforthe an cnng which a Managers,and the act of a majority of the Managers present at quonniepassett shall be the actoftnellitm p�entatameetingoffheMaaageraat which actionoii n 'C A ag�whois �E nm n raked iutea of Ito ira�ei�assettt�t�r'the�actiotrurrl'ess ht3't�isaeats�tail be�entered.m thenmtntrtey of the meeting or unless he shall fileldswritftedissent to suciraction;with the Person acting as secretary of the meeting before theadjournment thereof or shall'deliver such dissent to the Company immediarelyaf rthe'adjotnamettt of themeeting: Such right to.dissent shall not apply to a Manager who voted'itr favor ofsucb•action. (b) Meetings of the Managers may be held at such place or places as shall be determinedfrom=eta thnebyreselation ofthe business shag be:transacted in such otdei ass to j' the Managers resolution of the Managers. time to dine be'determined by re resolution of Attendance of a Manager at a meeting shall constitute a waiver of objecting tou the hmeetintexcept saction ofany where eibusttMana eraettendaameetmgfortheexpress-puLpose called or convened ground that the meeting is not lawfully (c) In connection-with any annual meeting of members at which managers were elected,thaM nagersmay,ifaquetnm is presentholiatheu first meothigfOrthetransaction of business immediately after and at the same placer such annual meeting dithe Members. Notice of such meeting at such time and place shall not be required. (d)". . Regular meetings of the Managers shall be held at such times and places as shall be designated from time to time byresolution of the Managers. Notice of such regular meeting shall not be required. (e) Special meetings of the Managers may be called by a Manager on at least 24 hours notice to each of the other Managers. Such notice need not state the purpose orpurposes of, nor the business to be transacted at, such meeting. (1) Any action permitted or required by the Iowa Act,the Articles of Organization, or this Operating Agreement to be taken at a meeting of the Managers, or any committee -5- : ` • designated by the Managers,may be taken without a meeting if a consent in writing,setting forth the action to be taken,is signed by all the Managers or members of such committee,as the case may be, Such consent shall have the same force and effect as a unanimous vote at a meeting,and the execution of such consent shall constitute attendance or presence in Person at a meeting of the Managers or any such.coumuttee,.as. the case may tree,:Managers, or members of any committeedesigiiatedhythellii Epn. Y Fie inagiholcl a"mac by means of a,telephone cenfçzence or hysimfiar communjcawns equipment wherebyeach" Person participatingin"the meeting can hear.each other„andparticipation insuchmeeting shall constitute attendance and presence in person at such meeting, except where a Person Participates in the meeting.for.the expressPurpose:of objecting,to-the transaction o€ any business on the load that the marring lawfully called of convened, 3.2 Number Ini9al Manager .Tenure R49nalifiPannaa,, The of the Company shall.be.TWO(2) The nunpberma be clyang c}fagm mane to[line hythe u rmative vote ofIVfembet,s,butinnomctanrP,shail,there;beiessthanoatlyf+mxger..'. he:T ial Itiie;mbas agree that the'execnttoa of"this eperating,Agrcemertt shallconstitute watten:consent to the electron of the Persons&sistated•on Schedule A attachedheteto.as..tl e. parry: EackManager Ivisnagpsof tlicGom shall hold office until his successor shallhave been.el by in the manner set forth in this mid shall be elected Cpe<aung.. greement.Managers need;not be,residents.of the State of Iowa or Members of the Company. 33 Certain Powers of Managers;, Without lttniting.the.regality:of.Section 3:1, each Manager, actingSlone shall have power and authority on behalf of the Company.. (a) To acquire propertyfrom any PersonorEntityasshetVr_?n . ay determine. (b) To borrow money for the Company from banks,other lending institutions,the Members, or affiliates. of.the Members on,such terms,.an-they deem appropriate, and in connection therewith,to mortgage,encumber and.ggatttseeruityinteets ht•the aeaet&of the Company.to secure repayment of the borrowed sums.(and no such actioa.shall require vote of the Members). (c) To purchase liability and.other insurance to protect the Company's property and business. (d) . To hold and own any Company real and/or personal properties in the name of the Company. (e) To invest any Company funds temporarily (by way of example but not investments and otherwise conduct or direct the Company's banking activities; -6- tun&Go,L.C. (U To sell or otherwise dispose of assets(Whether real;;persOPParor mixed)of the Company; (g) To exeerrte on behalf of the Company all ms tints and without limitation checks, docnmentsedeeds ee including, drafts;notes and other negotiable instruments ; o�'ages or dads of tan-securi ty agreements,financing statements documents spositioir of the Company's ? vtdfn ,s ofeale,acquisitions mortgage or dl Partnership agreements, and any otherinstruments or acumetts; drills of sale, leases, . or documents; (h- To-empRsp accountamy, regal counsel, managing agents or other experts. perform services for die Company and to compensate them from Company finals; to.. (r) To enter into any and all other conrrscts or Company to c agteelnents on behalf of the carry out the ptnposes ofthe Company,with any other P purpose, in such forms as the erson Or Entity for any Managers may approve; (1) To declare and pay distributions to the Members as described in Section 9.2. hereof;acid (k) To do and perform all other acts as may be necessary or appnpriare,to the conduct of the Con y's'business and'notincorisi`stent with applicable-law,the ardclea.of Opasling Agreement 14 Polder o Bind Unless anthorizedto dose by this Operagp orhy:ai�nagerot� _ of t Company,nol!rlemher'agent;or le y have any pow grant antitheft-3+4n bind theCoimree t t�C t pecuniarily for any-purpose. p8p 'm any way,taPledgeits credit orSo rende�if liable 3.5 Li entro • m peftiaipatingin the '.,,�h Manager shall exercise his business j does not,in any way, f the Fxtsiaesik operation$nif afgatra ofihe Co g in Members from the operations of the e return mpany of e members CapitalContri}iutionsorana profit f ol.the 3.6 l avi a No Excl si n 'vr utv to nnuianz m A manage the Company as his-sole and exclusive function-and he(�ager sag not be y required er business interests and may engage in other activities in addition to those relating to the Company. any Manager) may have other Neither the Company nor any Member shall have any tight,by vitme,ofthis,q an Participate in such other investments or activities of the Manager or to the incomeorp oc , d derived d therefrom. proceeds derived Aidgmnitaitzmana =The Managers shill be indemnified by the Company to the extent provided in the Company's Articles of Organization. 0 • Faun&Go,LC. 3.8 Re ?inatson Any yManaager the of Com pang may resign.et any time by giving written notice to the inain ersofthedouipanv. The rSgnation of anyManagershall take effectupon receipt of notice thereof or'at such later time as shall be specified in such notice; and, unless otherwise specified therein, the acceptance of such resiwation.shall:not he necessary to make it effective. 3 9 I2ehrovat' At a meetingcalled expressly for that pu9ese,:.allopanyleaser,number of Managers may fie tbrnoved at any;trine with or withQut cause,by the.affirmative vote of Members. 3.10 Vacancieg. Any vacancy occurring for any reason in the number of Managers of the Companytray be filledbythe affianattve vgte off ajo e g A lagers the*irroffice, prov dadifiatfrthere areno t uts vacane r �. ., . � W .) �5J1edt►�Ythea�imative vote of Members A 1V4anager el '" to a vacancy shall be elected for the unexpired term of his predecessor in office and shall_ hold o ce,untl)*the emilfat pit of auckyrion and until his successor shall be eiectetd and shad gtrallfy or Crta saber desk# tmp al. tt 3.11 Salaries. The salaries and'othei c anon of the a ompens bfanagers shall be fined from time to time by the Managers,subjectyto,the,apprcyal of Members hc;ldjpg*least a:majority of all oustaiictig tTnit,artdno Manager shall be prevented from receiving such salary byt>eaarnxafthe fact chat he is also a Member of the Company. 3`12 df cet The a�, ointthemsely oro�?a��,.X� ., 4a: theEisnch,vrdrral�a as officers of the Companytvhieh t�ay`inclbtlo, but sha not"be htmit tp (a), xecutne:Qffteer„: Chief Operatirig officer, (c) Chief Financial Officer, (d) president; (e) one or more vice presidents; (f) secretary and(g)treasurer. ,The Mang may dear?a por#m,$t.frk ay management respansibrlitte Many such ofd is, aa_d�te npr ,.by thr .e Vim,rgs,g r�}.N�+R suctu om a 3ti8n et ottb lE ofraad interests oftfietompany Viso aizifi forizedbythe Managers. unless the Maps s deeideotherwiser if the title is one commonly used for officers of a business corporation formed under the Iowa Business Corporapons Act,,the a is4iIIIP*140-tatwiktides>3all cogs ' the deie to such Person of the authority attd duties, tha(ate A _ � ` °` — o. isrme�Iy.aes�caatmd ast��tlta�E,o$i'ca;�st:-Era any specific delegation of authority!nit dtities node herceo. ARTICLE IV RIGHTS AND OBLIGATION$ OF MEMBERS 4.1 Limitation of Liability, No Member shall be personally liable for any debts or losses of the Company beyond his or her respective Capital Contribution. 4.2 List of Members. Upon written request of any Member, the Managers shall provide __— c rnvmn t e n�rne o , -8- ' e r• 4.3 Kum&Go,LC. the Company Co an Boo . The Managers relevant Company documents ern shall din main atMP to(a)at current office of name and last known business address of each Member and Man ur not 'reel ( )aa a current list ofrt the full Organization and articles of amendment thereto;(c)c' .•' Manager,(b)a federal, the Articles al income tax returns and reports,if an for the °P ofthe Cot an s feof any, three mostrecent e P Y � , des O the Operating and Agreement and of any financial statements for the Y tits,and .l copies of the Agreement banshallhayctheri three most recentyears. Ureasonable ue each Member g g inarybusiness-Murs,'toin °°ahlcompany documents at the Member's expense. . mr;3`eopysuchcompany 4.4 vote of the No lV d• wa'tdN©Dernanrl�,r• - " •Members (t)a Member shall not have the power or right to �upon the and Cu)a Member shall not be emitted affirmative Interest(Li)a the Campanlnot lthe-Company.to demand or receive from the Company the from the of his other applicable previsions of the Act s c&ssolved in accordance with the provisions'hereof or 4.5 Waiverof ._ the Company tion fnr i�a ' Each Memberimevocably waives during the the Coo yanynghtthatitmayhavetomaintainanya�onforpartitionwith Hof mPanY- respectto the property 4.6 Votineof i to the contrary,a j �. Except as otherwise expresslyprovidedin this references in this Operatthe means the affirmative vote of Ong A�eement to affiraraQvevoteo¢the Agent means which t Members holitiugat least amaj y bf'tltq Units aiititIed to vo a f the Members t hi quorum represent Such affirmative vote of the Members matters,including extraordinaryshall be the act ov shall be entitled to �rtcrs• EachMemberhoIdingUuitsentitleata vote one vote for each Unit. 4.7 halal* . Mall. _ executed in h by the meetings of Members, a Member may vote in writing Member orbyaduI• person or by proxy with a Managers of the Com an yaathorized attonne�in=fact Such proxy shall be filed montira:err o th Company before or the time of the dataefiteexeeution unless meeting; Noptheproall.be valid after o<fierwiscprovided is it ply; 4.3 gleCti,,,.,.F11,r..nam 'Me Managers shall be elected plur by the Members holding Units to vote in election at a meeting at by a hick ality of the votes cast Stated another way,each Member holding Unitssentitledto vote shall'been titled to vote the number of Units owned by quorum is present. that Member bons many persons as there 4.9 Ou-- Managers to be elected. n . Members holding at least arnajorityofalloutstanding Units entitledtovote, represented in person or by proxy, shall constitute a quorum at any meeting of absence of a quorum at.any such meeting, a majority of the outstanding Uniitt4, so Members.represented In may adjourn the meeting from time to time-for a period not to excme i fin ,. , --ua � may elic joummentis-tosmore 9,._without, is fixed for the adjourned meeting, a notice o thedyournedme gjall be given to each Meese` of record entitled to vote at the meeting. l untment anewrecord date Member -9- -...-. _ Kum&W,L.C. At such adjourned mee ;ng at which a quorum shall be present or represented, any business may be transacted which Might-have been transacted at the meeting as originally noticed. :The Members present at a duly organized meeting may continue to transact:business until adjournment, notwithstanding the withdrawarduringSuchmeeting of that nu ztberof.InterestSwhoseabsence would cause less than a quorum. 4.10 Action Requiring Member Approval. Th;Con,panyshalinottakeany of the actions described below without the affirmative vote of the Members:• - (a) Approval of sa uie• ,s,and Dozer:compensation to=Maaagets. (b) The sale, exchange or other disposition (other than-the mortgage; pledge or other grant of security interest)of all or substantialy all the assets of the Company: • (c) The merger of the Company with another entity. (dy The voluntary dissolution of the Company. (e) The amendment of the Articles of Organization or this Operating Agreement, 4.11. Meetings: (a) An.annual meeting of thelvlembers holdingUnitsentidedtovoteIan be held for the o M n of may proms:elt�ctt" anagecs„and.for the tta�sAetiprto€y�h.other tae come before the meeting,at the Company's laincipalofttceat&-Ollpsa..l tlme-onthe first Tuesday of March each year: (b) Special meetings of the Members, for any purpose or purposes, unless otherwise prescribed by statute,.may.be called la}a any Maaages,.or by,any Member or Members holding at least rem of the outstanding Unitsentided.taVote: 4.12 place of Meetina; The Meinbers.may desighatetany places.either withmz-or outside the State of Iowa,as the place of meeting for any meeting of the Members. If no designation is made, the place of meeting shall be the.principal office of die.Company. 4.13 Notice ofMeetinga,..Written'notice.statingihe.place,day and hour of the meeting and the purpose or purposes for which the meeting is calledshallbe delivered not less than ten nor more than fifty days before the date of the meeting,either personally or by mail,by or at the direction of the Managers or person calling the.meeting,to.each,Member entitled.to vote at such meeting. 4.14 Meeting of all Members. If all of the Members holding Units entitled to vote shall meet at any time and place,either within or outside of the State of Iowa, and consent to the holding of a meeting"arouch-ame-andplace,such tmgslu Lbes. lutwthoutonUornvticP uad.at uthnicctui� lawful action may be taken. -10- e • . Y • 4.15 ecordDa . For the Kum ,L at anXtn4eting ofMernhers anyOrPurpose of.de C ternurMept in ent eedtordc vepaym of vote distribution,or in o adjourning*Uiersee�E,or order to make a determination ofMem entitled to receive t ntfany notice of the meeting is mailed or the date o betsforanyother adopted;as ,,which the Purpose,the date on which adopted,a s the case ' sal bethe'recorri date for such t resolution-declaring io such distribution a this rmi fMembers entitled to vote at any meettn&op When a om such deterrninaf shall l> been apply to any adjor�t�thereof m�as provided in 4.16 Action by Members Wi h permitted to be taken at a out a)4� meeting of Members ma n. a ` Action requiredevidenced by one more y be taken Without aaction is en evidenced by one or mli written consents,;des meeting if each h with the to' erg of the �action taken, signed by Member Comp record& Action taimalM der t,,� y ion in the minutes en erfifieg for to votephave signed t, the Collett speciEes:a • effe>;t effective when all entitled signs a switma r consent bets entrtteci to tare aetiog shout a t date.e the Brat e� shall be the date the first Member Members may participate in and hold a .J, �mm �a equipment spate in each�ouueeang by means of:elephone conference or similar pwhere,a Person articipation in ` gsLc y ite attendance gift m�tgcats heareach other,and any busme3s on th the meetiin gismo of objecting to resencean Person at hea transaction t& not 12wfttlly called or:eonvened °p of 4.17 Wtivero�Notr thereof in wntirtsigned'" — Wh nY nottcaxsregw to be,given to an thereof bar the person entitled to such notice, whether before Y Memberr,a waiver therein,shall be equivalent to the vving_of notice:. -- - or after the time AATrr V Calaratlangacauraccaurnallt 5.1 catLitat�ontrihnh Schedule "A" ---� Each D?ember shall contaibute suc to as its. Capital-Contribution: No subsequent a mount as is set forth in Capital Contributions shall be required of any Member 5.2 teCarrital for each Member in accordance wictici here The Company shall maintain a separate Capital regulations promulgated under Section 704 Pi Account 0'3 rats. Each Member's ownership (b?of the Code. Units, desigiatedbyclass: An u � interest in the Company-shall be represented b Additional y is at a particular lass-as-set-forth-on r Members shall receive the number and class of Units determined Schedule A a embe hereto. ermined by the Members. The -11- �i ' • number and class of Units issued.to an A Kum &Go,L.C. Unitsz shall be within the,sole discretion of IIt; b ter the �aPi Contributror• got such 5.4 Class a of rntfg ' --, The Units of the Company shall consist of the f'ollowin : (a) � > ^ •Votir Brasses: shag ali have the following I cieiie(il T i The C �} „V©ti p f g attributes: =: �d'Units (i) -4 pae kaltie tsfaCl flitpi t:__ • (a) A:dtstnbupioar rate at 8 a ate> ' . distatbuttot ihalf be ciad vc onthly.in ate, re eive sai e�tfe sai o disuxbutiorts and ea f as t Ionize rug tdd U sal3 riot'hi enteledi v}ded at subsectim }:. t; said Ai°st Car ottto wthea:•diste-_ Itlet er disEribittions,of tlte-assets of the Company. (iii) The. Units:shalt have a can " ref . &� wherein'wherein' �arty . britaa whichiiipkof• holdarsafsa4dtUttttssBtlTbee*,ed, rece ogEubtaf + the +Ymeiits P4Sht o a• r '$ .itlas>• rlitii§ Affei payment of the full a ants aforesaid, the holders of Class.4 U F�etentitl mounts further'P cipalions in any diatillautior .. tt s' the'eor to y. of the a to t ecimpany (iv) The Umtsfsl ri ~caiked to vote on _ •. r which the Members have a rig any matter or matters upon matters,nor sf j1 t e ,ht to vote, including of matters, the right al M ere holding saidUnits be entitled gh Participate irk ar! to notice 3"ng of the Members. (b) (((v) The.Utttts shallnot be vertible to-any-Other Class. .ac1aB9�;tIOn-�dtlafg�'omm _ - shalIhave sIl the of: """'^ . The ClassB Non-Votin •.. Units avea o be eb� vote oat C voting Common said Common Units o with the Members that ve a right to vote, including extra any matter or matters upon whichh-the M entitled to noticee, inc of nr tex_raor o�matters, nor shall the Members embers its a participate in any Members. .said Units be meeeing.af the iYrembers: (c) Svs Vo[Ina('sumnn it and possess allr residual rights of ownership f iThe e Class Voting.Common _._ __ allrs :dc lrighsive on %nfUnits nitslhave -- i awe . n P. Y The holdera of cajfi i;om,o . r •Jet to vote on all ma.te1, upon which Members holding_ dints-are entitled-to-vote.- EaLl, Ot rshall-be entitled to one:vote. -12- l • 5.5 all ofCe fides ofMem "rest. Kum &Go,L�C. Units ---ham mL _ TheMe a or a l of the, the of th Company either with or Without,certificates: emtj ficn may I thotits the isce i forthorn d, the certificates wiltbe-d'sjiclyf beers shall Pttf Crib hce of anon �mfica[es shall °was�1C�1embers shall with cezafcates cord nits are without cer d cater hue. not affect Units alzeadlirep ennat Prescribe: Any authoriny, zation theterrific tee a surrvents E `Allt�iiits of the-C i am sts„p evidence�,OPerating ��4114 the�, l�nanctsnba�t ;oii� s dented mtere � > Y y Unxr sIaiI beaz.eie h•mitY?equt a t1m ce, Lei acrd con sons of totty ma requite ' 'foRbwing terms that *er pt m 7f a issudd to y to membership Units: a---, <is'tfie Members order fr1 wfir"clr ms • Alf s-be issued-anct forlitttss he mama Contr ftr 04 the President mated-i shaQ'4G either arty get, f the ofm Company,as of the dent and the Secretary � �.the ot to the the C this Operating, aanysame may be properly `m an Assistant Sectz President tad. Agmeme7 The si apporated O1 designated �' uweif esident nd44 ,.�.,, pastes Company itself or br t trsferag�t, or a Y ltc 5 ice an employee of the Company a`ngistrar, other the (b) ReWul certificates for Unexpedient; mit its. In � the fifer and Cq d��'' I�deem (c) rngistration of anYtttfcaGt, : In the even&gi.E eir Ot&name don of satisfactoryrnayconicerning f am e theft hr e itt**ace'laustiant to such atalc onsaat6°nb at dek CO err .,, � theme had _ s s an d `art pose;ot rated by m'i4r,. 4 aj N Syeab .p djf shone the respectiveate, the respective �yencc;and if on the books of the.respective dates of cancellation..Thepesso. ates thereof an4 in t of the-Company: ?aAaay sita}l be rlan7se U omPe1ty d ed'the °wnet'thereei"ii'rad - Units stand Poses as regards the books of the Company fgtaultti{i` T fern of Units of the Company theauth000ks f y ptµ, f attorney the record owner thereof,on bk�his o h shall be made only on sunder of the certificate duly executed and-filed with ° thereunto of the de rtificate or certificates for such Units, the Company, and on the Company and the Interestsrepresented rats,if anyl pr`° Y endorsed upon and sub'ect to -- thereby shall in all events All Units ent - -i3- --- Kum dt Go, ArI�' .,�'" - - L.C. AE7�K31YSty4 anrn�r, 6l �.i'"l xYisttl`t tan accoIansc c 1 �strfiCed trintc1ILe to-q 'i �j ,�I��p`:�.y��y� e!egi l Oll 4. among apizoud C 't90.4Ytpa m dills ill iron th , . ' sak' -•'vislq q q• `.:. - pl,-a iii----flaw e*lit trled� tharelev ttt� m6er�` r•foe Plc shad be g}'7�,{ hfeafed as 6.2 Llmttaaon Upon n,m,,r, . disinbuaon ts. (1)the C' bI° sR t `�°R- 15m1r �ise.of�`busrness;tor�2) m a p*qpaa4n1Pa ts• de8Cs� ,afin the habuitrets "" ]?�srtotat assets wine Abe due in the t1• K l�s-than;the yom, its to Hes > , total ac"val ffr4.cli tt ga �tl et �., . -� .9f snood Cbtnp t on the a �a„ °` I�- wit • x • . accounting 6.4 _and Ree„�„ o t . interest on its C' i i. otkto shy 1 entitled to speciticanyl &line of it�;t apipaj �' bttfion, exce{re:as°itse 6.5 Fans m romna„�, Nothing from mainng goblkill in this Goa`_.>. t unee etH antt tb the t lip ' Comp Member •t tit Ednineurms Minns deemed necessary inquired to be filed by the y pursuant .the P Pet'atd n and ter tax Copies ofsuch sary and required m ha tige to the_ a all other tax a reasoaa61g`hri p't� y'� � ; t°thc. b with n 6 7 Taz t� ..__ .. . withi ofComl67Yfor infizabst °1;K is hereby d Ma fiber Matteis info ptuposesof r 63 of. the Code and the Tress designated the Tart may be changed by the Members. All tax electi Rations thereunder. The Tax Company under federal or state laws shall be.made by irTi aliens tied to ber�rnade by the y thcMerttbms-izF-ttieir discittion.. 5.8 AashijaQuadm.autraita (a) _Cac otr oFt' altlindr g •Net.PMfitsoftheComPartY realized for each nscal year shall frrstbe'allocated- i respect to such purposes of this allocation to Class A Units,Net hall be determined without Lakin g into consideration depreciation expense as deters mined for tax purposes. All remaining -14- unallocated Net Profits d Net Kum &co,Lc. _ all unallocated d td. an Loases.of the Company realized for each fiscal e the hQldeis of the Glass Band Class..C Uauts: year shall be }accordancewhSe¢tianZ d a ' razable income, t coil and de °ftie code and the Re cou gubuted t die ca of the C smp yt`shall„solely.,fon:F. : . � s, be all contributed tomongpthe Ada to take into account purposes, allocated among property for Fedetai tACome;tai. ration 'eett�tEre adjusted basis of such Conieaer.jua'poses and its fait markkt vim. as recorded on the boo o ny.AlAs � n �"l $v) tli&Reguiati in the event that the °In&a?a7�s boo t revaluation of Companypm tied i_c Kika ks"`chem sttbsegttaab allocations afr' Paid r t.to such'propart3t.Mid?ter taxable income, gain,e less and td basis sue ( acLount any variation between Vela,as on .. .. $ '1 I?a8os and its adjusted fair mares ` m�a'+�attce d t:�1i$o un�this paragraph be ret1ec in Members' Accounts- I eFoEts and,consequently,all be made in any Meanfier s Interest in the Cv •In the event then is a tt a any, of all;,or Ili oEi a d' tat fisca year (e.g., as a result of a�v�ge a f �i) a,or pa . fibers:. ); t P fis and Net Losses shall be appitpon the A as CO comply with Section 706(d) of the t the varying interests of the ,yQ� ( Eyll 9h i _ .. toTth oritt y,Iif. mat ofm°° ;nam,los�mdednc yv G�'d etrienreetitt l r s libationson allocati1 �parrngraaz, otlitions icoun'�nahe!oOoes . C) "Partraernonrzco �. �. : _. ._ _...- ..� -,- , --. 1704-erne and(s of �at b d'anddefnedinSection "par1? er.no laabihi Regulations attributable to a particular n nom ty" (had -in Section t7Q4-2(b)(4); guaranteed) snail be ty which' one• or more .Mem6ets; have. cated ataog the Members to the ratio h which the Members bear theec liability; oaaomic tisk ofloss with arspect tasuch (ii) Items of Company P y •ass income and gain shall be allocated among the Members to the extent neces fornomeocuase habit—leis-it. fo - naau---- .--- 1.704-2(0 and 1.'042(1)(4) of the Regulations; and in Sections -15- iei . Kum&Go,L.C. Items of company gems income arictgain Shall be allzacett,atoong.the It msofCgtnpanygrossincomearidgainshallbeallgcated,ainong;the -Members to the extent necessary to comply with the qualified income offset provisions set forth in Section 1.704-1(b)(2)(ii)(d) of the .Ite ti ? niklA deficit,capital accotuu balances 6'- jaftertalcing:intaaccotmt(i)itcapital account adjustttt'twnts t escnbed ,,,in. Section, 1,..7o4.1(b)(2,ci'xa)''Of they Retie aatbhs and- (ii) each .1gember's-share,if atm Of ttieCompany's parCtershi min mum gain and partner nonrecotn e.minimum at i, +`- ----- gain proyr c� in, Sections 1.704-2(g)(1): and 1.704-2t!f)(5)t of the Regurat ons. Since the allocations set forth in:tfnsSertionr(the"Regulatory ocations")may effect results notc.onsistcn with the manner in whrc"'.ttie Members intend.to divide Company sttibutions the IsteM i. • to divido ether �are authorized etherallocationa•ofnet,profits; l ' �s osse�,an<f'a�Faer items among the• 'seas ttiipte Vent the R ocatums from �. *tottingthemanaes�inw i$ > trt<diis di the Ivlenghecs but foci 'n among applicatfOr oil the>Re ,t ins: The Members shall.have.•discrtitioa• to accomplish this =suit in any reasonable manner that is consistent with Section 704 of the Code and- the releted._$egil May- us t�ritten consent,to nos a any election-Permitted Pa anemo • by e the Regµlatione ander Section 704,of the Code that rimy reduce or eju ninfee any ,RegiriatpntAllocatica.mat*bolt otherwise be required, - . (e) Tax Conformity;Reliance on Attorneys orAccountag.The determination of each IY%mber's arc((each.item,ofincomc g nl tegt,'. en c of . " o'$sca j(ear shill forade „ purposetof Sections 702 and 704 ofrlie C'�e,be made . h U c allocations sat.forth::ia thin Section. The Members shall have no fab► to mbtancethe:CoitrpanfiftheMentherreliesupot the wntten opinion of tax cbutiisei or accountants retained by the Company with respect to all matters(including • disputes)relatingto computations and determinations required to be made underthis Section or other Thcovisiona,of thin Agreement: 0' No Rights)Withdraw andNo Demandof Member Capital.Except upon the affirmative vote of theMembe s. (1)a Member shall not have:the power or right to withdraw from the Company and'fii)a Meniber Shall not beentitled to demand or receive from the Company the liquidation of his Interest in the Company until die Company is dissolved in accordance with the provisions hereof or other applicable provisions of the Iowa Act. -16- Kum at Go,LC. ARTICLE VII ?Karts-I .!" AsstgnmentofInterest. Member However,. a Me b A Membermay assign Ms or herbs m er shall cease to be a Member upon rotethen w in part aff ti tterest Anassigp tdoeenet,entitleth t!went of. theMember's te mRu?Y, or Income. entire etit:rat the ato or to:exercise an .n P-em t17 ffie. rand wizuld assignee Theassigtipr recetverto *e extant asstgne i del the 'a g'1eml7er Suds an assist be entitled &edge.of or Y t,lie , or�arnst anY`or alI of the in g'of a` ►ir ty'interes uRon to rules • ancLshaIl'nof depnVe h_e In_nb o *rubes net cause the Member mber to cease" or 7� power tatexereise any rights''or powers ta;be a llQ t er t o aMeffiher becomeaSubstxtute r. ». 7.3- g��'�Yot'th1'4eoutstandiag' Aeriellinz h �+on.on Cry zT ..^ _ geemetit to the contrary, standing ariy 1?t'oon is this p assignment or transfer would portion ult n a to Member's Inteltist ,be assrgnedor ' e ermination described in Section 708 tfansfe�if the �) of the Code. ARBCLE;VIg _ • �D1TT[�NdT 8.1 AdhnasionofNtwlt`Pr,,,,� e... _:,.. after the date of the_formation.' of Addthonal of ttie outstandth$Units,sirb �aY,.with�may�athe Comzp�Y ofrte tc'ii leactatheterawand. conditias�ofthi �tiolitolctiarsn mpany Interests for such conasderatiatt 4tha nr:m=44e e° osalo • C° ?Y shalt one, to at'Y`t' r>'e`au. �Additlae �, ° `on of to t omParacti ants opaon, ac theme' °°r ede b� _ensr• t e. incCoome b°°�far though the Co anytij aa9 Ad tioaal br 3ubatttute M s °�clo . oma and expense deta year had ended) ated, close the Company's deductions to an.Additi,ort�,.or or °Pro ruts allocations of loss, Yearin which an Additiaaal,or Substitutes ` Lei` ed inac " the provisions-afSection 706(d)of the Code "was admitted, Por<ron, of the and the Treasury Regulations rd.in axed thereunder. Promulgated theitundar. ARTICLE IX DIS O UTIO A i RMniA i rON The_ — _ following-events: ompany shall be-dtssot ed-upon the occ utrence of any of the -17_ , Kum&Go,L.C. (a)at the time or upon the happening of an event specified in the Iowa Act, the Articles of Organization or this Operating Agreement; or (b) upon affirmative vote of the Members holding a majenty of the outstanding Units. 9 t~ >U a 'C 7h''u' q„ O Payment Upon Redemption.of MsmberaltM llirtertest WTien, as.pera ,rte¢.bi this peanng'.lgfeement,-aMember withdraws,a WhgembeiesInterest is otherwise redeer:404 the Interest shall&valued at anct fxed.at:an aieuutterf to the farmer M embers-R:esta_ted capital Account 'epittAcgctutii:Ir tehle> or}flsassignee,sh fbeerutidedto intpretttihe .undistnbuteer a ce of suci .,� htii<a�.CaPitplAceounta$tlts'applfcabte'federaf7ong-l1pmratefytegiaas of thedate t[ st is redeemed..At the. ogtioraarl2heGahapanq;the•und"si triiiuted balance of the former?t b'—s Anal Capitaf Account shall be paid(i) in cash in full within f5Q:days from the date the Interest is redeemed or (ii) itt Ififfoqualti awtatiastirthentirineladhriciaa insrallmetltcha',rnryearfori ttieds'fe tall Want earths sst hest arasigasd�ittnt aanr>al inshallinettta �ch and`every year thereafter until-the entire undistributed balance of.the Irma! Capital Account, togethe r wit ac h atued;i�tE.xest; tktta3d'ia.� ''FhcCcrmpany`fiay prepay,,.y obligantm, fri iviftle or in pi t.5.4.�tx>t ti _ - _ . 93 .° 'Articles ofDis'solutioq When all debts,liabilities and obligations have been paid and discharged or adequate provisions have been,made_thetefor and all of the remaining property, and assets have been distributed to the Members,articles of dissolution ahallbe executed and filed with the Iowa Secretary of State.. the eatince:titthe p purpose of suits, other y' cease, except for the Proceeffings-arid appropriate action as provided in the Iowa.Act. gq, Wmtfin S. atP� derl≤bg`iaw;ispintt''diss tto each MemberIstgiocs#04 loot s lel to offheCombe • fcrlheatrRolitsetldttaltantribtaon ffthe;Cgtapaaypopezxy remairang aftnelayment oiniachaeffikofthadehteandithibrillies oftha Company is insufficient to return the Capital Contiibiiaon of each Member,such Member shall have no reco Member. Further,no Member shalLbe- t ,Fo..tastr;ra utseag�rnst other �d. � . ,. .,... �.. .. �s oe Prep. . .L-�4caoertE c J allnot be,ttestedas.an asset.ott e g up affairs of the, onrpatt�'`TCia''wmrlin . - Oft11e Company and the dii:tribution of its,asserashall be conducted exclusively by the Members; 9.5 Survival of Company Contracts. Any'act prevent (including the passage of time) causing dissolution of the Company,shall in no-way affect thevalidity of,or shorten.the term,of,.any lease; deed-or trust, mortgage, contract or other obligation entered into by or on behalf of the Company, or acquired by the Company as assignee. 9.5 Proceeds of Liquidation. Net Liquidation Proceeds shall be applied and distributed in the following order of pnonty: (1) First, to the payment of or provision-forte-debts andliabillties of-the Company (including loans from Members) and the expenses of liquidation in order of priority as provided by -18- law, and to the creation of any reserves which ma be re on �'&Go,LC. unforeseen:liabilities'o :L ons;� :.,. •�.a y ::.r n X ue sary,fora gebt or their,Final Capital(2)Second,pro rata to formerMembers il}Proportions()the un interest Account; in PgYmenrof heir I-t*Capital Accounts ` accrued balances of s plus d but unpaid ": ..r r r ct .rJfl iii, I:r .. . (3)Third, to the Members in repayment of their Capital aP Accounts in the Company;and (411"ttnslly,to Ute Metnbeis I P ntOttietrrespecttve its rnFlteoaipsny I SCETta pUS PROy*ern,.m 1Q.1.- :art any Pmvtst 'es€thae ?nt'cair. .N.-. _.,k. k<fsgivettoeseriled ame is r all purposes if delivered personally to the puny or to Have baf a by directed or,if sent b executive officer of the parry to whom the the y registered or certified c�Mem .and/or C 7's: ss as tt ' e d' used e. after Pt doh ase here r?seiefrttotf f 3S : ,a9t aft rtii ed Staffs sesste- ` rffr iii pa . . Sz bu addressed and sent as aforesaid Y matacamedi' tketel 14.2,..: shall be o kept or shall be caussd. ept by• t ntsandtt ,,, t- aceY all transactions and other matters relating tot m which shall be entered detain n d 4 -•w "." pare booicaaudmrttDdss� soft" and • office es consistenby applied The books andiecorda eataizeaineseseaecontince With geaerauy accept accounting wesuiptealokbytheCtunpare*Slitti' euatinioasimmiliseMiestheie or their .theco�p tilts. `a dul .� .. imablei!thneAbernaincalaithillibt attentive y attphortzet during le bui utaaho g teasonablesmess bouts. x�noir & Sur - - iatetpre10.3 hereof,shall be --�• :mss Opeiadag.` k and the application and-specifically the.lowa Act v�ed exclusively by its terms and by.the lawn of attire 10.4 Execution of adr;;r; a , a other and further statements of interest • Each Member hereby to execute such and holdings, designations, powers oagref torney and other instruments necess ary to-comply with any lawst-rules orregulations. when required by the context,11-eie hall include the u is used in this Operattn ,q the feminine and neuter gendersplural,and the masculine Operating Agreement dee and vice versa. ndershallinclude -19- I w • Kum & Go,L.C. 10.6 leadinss. The headings in this are inserted for convenience drily and are in no way .intendedto•lescribe m teclnet;defltre;otHtnrCt[ie scope,extent-aiizntemt�ttrT§� " i;Riitd ''"` 'irment or any provision hereof. M 161 °�{Faivers. M1nz c ,a strict The failure oi"arix pa}tr ip.seeli redsz.for viwlarawof tifto•insist b a the performance: any covenant`or'cot d`itfon of this Operating Agreement shnllzi'tot pre vent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation. 10.8 Rights and Remedies Cumulative. Then p bythis Operating Ageernename eliminativeaitrithertise'ofanyoneremedybyanypartyshallnotprecludeorwaivethe right to use any or all other remedies. Said nghrafd remedies are given in addition to any other rights the panics may have by law, statute oidrnance or otherwise. 10.9 Severability If'a +�nevrsto r aftli s peratrng Agreement orthe application thereof to to any person or circumstance shall be invalid>i1 (o �de.appfieatraathet�eo s�'eaft to die Eillt tentpearixtteebyfty 49014'abet' St dwarf � a,%ach frill a ,r to ce i tl '" ue asp*in ette thebeneitiortheipitrigistretteWaig eagreapiem it , s+ a w� . �._ RCctinxs r..plrti�.fanQes, 10.11 Creditors. None of the pravisiopy,o f tis tie forthc benefit o£or. p: ttor�of the y fain . whir5ksltt4 ber�c3eemeeh'ig bri' . ,lz. imeettinterpartr each of 'irafbdlall`of wl ch Oiscitcsuitituta.oactanattliniatheniittrim'aik e'• 1 U.13 13ntire AYg�e>3see 1116120e6 bexein ig eaihat a}f nertofotanadie be tweet Matti are m d in ergethis,Ogpiming •with' and completely expresses their awcu „g it witli respect td the subject matter hereof. There,are no promises, agreements, conditions, understandings, warrandea, on _ oral or written,,expresa of implied;-among the paitins[ieretd,ofherihan.assettorttrrr<.aftiaOperating4nt0nd the Articlm.All prior agreements among the parties are superseded by this Operating Agreement, which integrates all promises, agreements, conditions, and understandings among the parties with respect to the Company and its property. 10.14 Non-Disclosure of ConfidentialDisclai . Each of the Members aciarowledge and agree that each will be contributing rie i o --�++ia piutut..t,LLyinfurmauuu shall.only bets i .{c.bu e9e;ptapeseaofthe- omvany-and -- for no other purpose. In no event shall"a Member utilize any proprietary information provided by another Member for his own personal gain. -20- L +1 ♦ • I0.15 ac ` r Rum &Go,L.C. shall be deemed as effective oas an an �of executing ttus Operating afacsimilesignature actual signature. SCHEDULE A Voting Percent "Common " Ownership n e r s h i p Percent IGnuse Gentle Co •.ration No crass A �'-� 98.7596- . M Vonn_ U•'. . 6,00G NIA i'�" auras Votin_ Common Units 790 1 .010%, TOTAL �. No Si t� Class Co00% mmon Units 9400 0.01096 99.12096 �- 7QOIXJ( 100.000096 NOTE: It should be noted that immediately Non-Voting Common Units were held by Solar Transportthe Company date a of 0,i 00 Class C 30,000 Voting C Common Units were held by Kyle I. Krause. Contemporaneous Co a with and 30.000 t C Non-Voting Solar Transport Company was merged into Krause . n the effective sate of this document, to Krause Holdings,Inc.in exchange for shares ofHoldings,Holdings, I.Inc.Kinle I. Krause def contributed pursuant to Section 351 of the Internal revKrauseKta c.in a tax units emus Code. 'defected exchange CERTIFICATE c� The undersigned hereby agrees, acknowledges, totes consisting of 22 pages, including Schedule and" but ex ltudiat the the Table Contents the Operating Agreement of KUM& GO, "A," ' but excluding Table of Contents, Company as of January 1, 2004. L. adopted by the Me of the n William A. Krause Kyle e KRAUSE HOLDINGS, INC. By: Kyl . Kraus , esident -71- • fs A ASSIGNMENT AND BILL OF This instrument is given pursuant to that one certain Agreement dated December 23, 2003 ^~ by and among the parties identified below. Any capitalized terms used herein and not otherwise. • herein defined shall have the same meaning ascribed to them in the Agreement, which is incorporated by this reference. K lOW ALL PERSONS BY THESE PRESENTS:• That,KRAUSE GENTLE CORPORATION("Seller"),for and in the consideration of One Dollar($1.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby aclmowledged, has bargained and sold and by these presents does hereby GRANT,SELL, ASSIGN, TRANSFER, CONVEY and set over unto KUM&GO,LC., an Iowa limited liability iabil ty company("Buyer"),all of its right, title and interest in and to the following assets associated with the Stores, to-wit: All furniture,fixtures,equipment,contract rights,goodwill, era1� property used or intended for use in connection with tfie �b les and other r including, but not limited to: 0) all computers and POS systems;operation of each Store, service equipment,coolers,refrigeration ys�s; rs; appliances, food racks,counters and si equipment and compressors; (iii)-all shelving, a supplies and age; (iv)all tanks,lines,pumps and systems relating thereto;(v) upP materials held for use or consumption;(vi)all franchise rights with quick service restaurants and others; (vii)all rental or leasehold agreements wherein Seller is the lessor, and other forms of income streams identified with each Store; (viii) all Intellectual Property; and (ix) all computer rights. programs, computer software and software TO HAVE AND TO HOLD unto Bu yer, its successors and assigns.are being Seller presents,warrants and covenants that all of the assets,whether tangible or intangible, delivered free and clear of all liabilities,obligations,liens and encumbrances whatsoever, except for any Assumed Obligations (as defined in the Agreement). This instrument shall be construed and enforced in accordance with the laws and public policies of the State of Iowa. This instrument may be executed in two or more counterparts,each of which shall be deemed an original but all of which taken together shall constitute one and the same instrument In addition, for purposes of executing this instrument, a facsimile signature shall be deemed as effective as an actual signature. IN' -- •. WITNESS WHEREOF, the Seller has cau3e_d this Asstn any R;ji of urater, executed on or as of the 1st day of January, 2004. KRAUSE ORPORATION KCTM& GO, L.C. By: By: ,) Its:sSi r-y7 It3. hf,dssz_R Hello