HomeMy WebLinkAbout20011351.tiff RESOLUTION
RE: APPROVE TRANSFER OF OWNERSHIP REQUEST FOR 3.2% BEER LICENSE
FROM ALPINE STATION, LLC, DBA CONOCO FOOD STORES - EXPIRES MAY 29,
2002
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, Alpine Station, LLC, dba Conoco Food Stores, has presented to the Board
of County Commissioners of Weld County, Colorado, an application for a Transfer of
Ownership of a County Retail License for the sale of fermented malt beverages, containing not
more than 3.2% of alcohol by weight, in sealed containers not for consumption at the place
where sold, said license previously held by Cono Services, Inc., dba Conoco #06394, and
WHEREAS, pursuant to Weld County Ordinance No. 6, Section II., C., said applicant
has paid the required fees to the County of Weld for a Transfer of Ownership of the existing
license, and
WHEREAS, said applicant has exhibited a State License for the sale of 3.2% fermented
malt beverages in sealed containers not for consumption at the place where sold, outside the
corporate limits of any town or city in the County of Weld at the location described as follows:
3851 Highway 119, Longmont, Colorado 80501
NOW, THEREFORE, BE IT RESOLVED that the Board of County Commissioners of
Weld County, Colorado, having examined said application and the other qualifications of the
applicant, does hereby grant License Number 2001-05, to said applicant to sell 3.2% fermented
malt beverages in sealed containers not for consumption at the place where sold, only at retail
at said location and does hereby authorize and direct the issuance of said license by the Chair
of the Board of County Commissioners, attested to by the Clerk to the Board of Weld County,
Colorado, which license shall be in effect until May 29, 2002, providing that said place where
the licensee is authorized to sell 3.2% fermented malt beverages in sealed containers not for
consumption at the place where sold, shall be conducted in strict conformity to all of the laws of
the State of Colorado and the rules and regulations relating thereto, heretofore passed by the
Board of County Commissioners of Weld County, Colorado, and any violations thereof shall be
cause for revocation of the license.
2001-1351
�� ' ' 6-O LC0031
TRANSFER OF OWNERSHIP OF 3.2% BEER LICENSE - CONOCO FOOD STORES
PAGE 2
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 21st day of May, A.D., 2001.
BOARD OF COUNTY COMMISSIONERS
WELD TJNTY, COLORADO
ATTEST: 4>tety / E 6\ Ap_ PfLtJ
M. J. Geile, Chair
Weld County Clerk to th-[S '` ,
1 �Q;:k; XCUSED
BY: �Q�/J / Glenn Vaad, Pro-Tern
Deputy Clerk to the Boa+� 1 ' 'i / r7'AA-9
-� H. Jerke
KAPPR D A RM:
ed'
aid E. Lon
County Atney
obert D. Masden
2001-1351
LC0031
THIS LICENSE MUST BE POSTED IN PUBLIC VIEW
DR 8402102/99)
STATE OF COLORADO
DEPARTMENT OF REVENUE
Liquor Enforcement Division
1375 Sherman Street
Denver,Colorado 80261
ALPINE STATION LLC
CONOCO FOOD STORES
3851 HWY 119
LONGMONT CO 80503
ALCOHOL BEVERAGE LICENSE
Liability Information
Account Number County City Indust. Type Liability Date LICENSE EXPIRES AT MIDNIGHT
40-67790-0001 03 206 005541 B 053001 MAY 29, 2002
Type Name and Description of License Fee
2122 3.2 PERCENT BEER RETAIL $ 50.00
LICENSE (OFF PREMISES)
2190 COUNTY 85 PERCENT OAP FEE $ 42.50
TOTAL FEEIS) $ 92.50
This license is issued subject to the laws of the State of Colorado and especially under the
provision of Title 12, Articles 46 or 47, CRS 1973, as amended. This license is
nontransferableaad shall becoespicuously posted in the place above described.This license is
only valid through the expiration date shown above. Questions concerning this license should
be addressed to the Department of Revenue, Liquor Enforcement Division, 1375 Sherman
Street,Denver,CO 80261.
In testimony whereof,I have hereunto set my hand. .
Qc„„., G LM i ,. .Q W /“ -
Division Director MAY 3 1 2001
Executiv
e Director
ONLY 3.2 % BEER SOLD HERE
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STATE OF > COLORADO `� ]{LE3
3 -; . '-
COUNTY OF WELD . w" ,
loe v BY AUTHORITY OF THE BOARD OF COUNTY COMMISSIONERSicriiiir '
4:: ds Fermented Malt Beverage License
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RETAIL��I e
unlit; LS to flPYfff1J, That AlgineStationl LLCLdba Conoco Food Stores
ti: _•___•__•-____•_____•-__•____•_
j I,� ° of the State of Colorado, having applied for a License to sell FERMENTED MALT BEVERAGES at retail and having '
' ` ' �� y, L Dollars therefor, the above applicant is•v ,fig` paid to the Treasurer of Weld Count the sum of seven and 50 100 ' :l
hereby licensed to sell FERMENTED MALT BEVERAGES containing not more than 3,2% of Alcohol by weight at 'i!>
x`14 3851 Highway 119, Longmont, Colorado 80501 ,
r�;" �` in the County of Weld, Colorado, for oneyear from the 30th da of Max 2001 � r.-,-.....
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rr S y
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to the 29th day of May , 2003 unless this License be sooner revoked
Y _ as provided by law.
, ����� This License is issued subject to the Laws of the State of Colorado, and especially under the pro- v•�, ",* ,, /
n Est",' �
z ape „ visions of Article 46 of Title 12, Colorado Revised Statutes, as amended. x
ax .. IN TESTIMONY WHEREOF, The Board of County Commissioners has hereunto subscribed its
ii * „ name by its officers I my authorized,this day of May , 2001 t e H
w m3' a a$"s " D9..0 r _yA • u .,,.x a < ,`. sr ma nn a.na vria " v
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TO BE POSTED IN A CONSPICUOUS PLACE
TH S LICENSE EXPIRES MAY 29_ -- - __ , 2002 NON-TRANSFERABLE
rucu yr.ocrinWr-tar r ne ArnaiLANT
BY DILL DILL CARR STONBRAKER&HUTCHINGS.P.C
DR 8404 (06/00) Page 1 (303)7774737 21
COLORADO DEPARTMENT OF REVENUE
LIQUOR ENFORCEMENT DIVISION COLORADO LIQUOR
DENVER CO 80261 OR 3.2% FERMENTED MALT BEVERAGE
RETAIL LICENSE APPLICATION
❑ NEW LICENSE ® TRANSFER OF OWNERSHIP 0 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 UQUOR AND BEER CODE(Call 303.321-4164) DO NOT WRITE IN THIS SPACE
1. Applicant is applying as a 0 Individual
❑ Corporation X® Limited Liability Company
O Partnership(includes Limited Liability and Husband and Wife Partnerships) 0 Association or Other
2. Name of Applicant(s) If partnership,list partners'names(at least two);if corporation,name of corporation Fein Number
ALPINE STATION, LLC 91-2115415
2a.Trade Name of Establishment(DBA) State Sales Tax No. Business Telephone
CONOCO FOOD STORES 40-67790-0001 (303) 776-9396
3. Address of Premises(specify exact location of premises)
3851 HWY 119
City County State ZIP Code
LONGMONT WELD CO 80504
4. Mailing Address (Number and Street) City or Town State ZIP Code
2329 SW 15TH STREET EDMOND OK 73013
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
CONOCO STORE #06394 21-35816-0067 3.2% FMB 04-05-2002
LIAR SECTION A Nonrefundable APPLICATION FEES LIAB SECTION D LIQUOR LICENSE FEES
2300 El Application Fee for New License 850.00 `:1940 ❑ Retail Liquor Store License(city) $202.50
2300 ❑ Application Fee-New License Concurrent Review....950.00 1940 ❑ Retail Liquor Store License(county) 287.50
2310)Z1 Application Fee for Transfer of Ownership 850.00 1950 ❑ Liquor Licensed Drugstore (city) 202.50
SECTION B 3.2%BEER LICENSE FEES 1950 5 Liquor Licensed Drugstore (county) 287.50
2121 ❑ Retail 3.2%Beer On Premises-(city) $71.25 1960 ❑ Beer&Wine License (city) 326.25
2121 ElRetail 3.2%Beer On Premises-(county) 92.50 1960 Iii Beer&Wine License (county) 411.25
2122 5 Retail 3.2% Beer Off Premises-(city) 71.25 1970 El H& R License ❑city in county 475.00
CI H &R License w/opt Prem ❑city ❑county 475.00
2122 ® Retail 3.2% Beer Off Premises-(county) 92.50 1980
❑ Club License ❑city ❑county 283.75
2123 III Retail 3.2% Beer On/Off Premises-(city) 71.25 1990
0 ❑ Tavern License city county 475.00
2123 ❑ Retail 3.2% Beer On/Off Premises-(county) 92.50 20 ❑ ❑
❑ Arts License ❑city ❑county - 283.75
SECTION C RELATED FEES AND PERMITS 2030 ❑ Racetrack License ❑city ❑county 475.00
1985-100(999)❑Addition of related Facility Permits to existing 2040 ❑ Optional Premises License ❑ city ❑county 475.00
Resort Complex license 1505 ❑ Retail Gaming Tavern Lic ❑city ❑county 475.00
$50.00 x Total Fee 1975 El Brew-Pub License 725.00
2210-100(999)El Retail Warehouse Storage Permit $75.00 1985 ❑ Resort Complex License 475.00
1980-100(999)❑Addition of Optional Premises to existing hotel/restaurant No Fee❑3.2% Beer On/Off Premises Only Delivery Permit
$75.00 x Total Fee No Fee CI Retail Liquor Store Delivery Permit
ElH/R-Tavern Managers Registration $75.00
DO NOT WRITE IN THIS SPACE-FOR DEPARTMENT OF REVENUE USE ONLY
LIABILITY INFORMATION
Li
County City Industry Type License Account Number Liability Date Ex
( Issued Through
(Expiration Date)
FROM TO
State City I County I Managers Reg
-750(999) 2180-100 (999) 2190.100(999) -750(999)
Cash Fund New License Cash Fund Transfer License TOTAL
2300-100 2310.100
(999) (999)
A
c . .
DR 8404(06/00) Paget APPLICATION DOCUMENTS
CHECKLIST AND WORKSHEET
Instructions:This check list should be utilized to assist applicants with filing all required documents for licensure. All documents must
be properly signed and correspond with the name of the applicant exactly.All documents must be typed or legibly printed. Upon final State
approval the license will be mailed to the local licensing authority. Application fees are nonrefundable.
ITEMS SUBMITTED, PLEASE CHECK ALL APPROPRIATE BOXES COMPLETED OR DOCUMENTS SUBMITTED
I. APPLICANT INFORMATION
rgi A. Applicant/Licensee identified.
XJ B. State sales tax license number listed or applied for at time of application.
C. License type or other transaction identified.
D. Return originals to local authority.
E. Additional information may be required by the local licensing authority.
II. DIAGRAM OF THE PREMISES
I A. No larger than 8 1/2"X 11".
IN B. Dimensions included (doesn't have to be to scale). Exterior areas should show control (fences,walls, etc.).
❑ C. Separate diagram for each floor(if multiple levels).
❑ D. Kitchen-identified if Hotel and Restaurant. .
III. PROOF OF PROPERTY POSSESSION
❑ A. Deed in name of the Applicant ONLY(or)
pi B. Lease in the name of the Applicant ONLY.
/U, C. Lease Assignment in the name of the Applicant(ONLY)with proper consent from the Landlord and acceptance by the Applicant.
❑ D. Other Agreement if not deed or lease.
IV. BACKGROUND INFORMATION AND FINANCIAL DOCUMENTS
IIA. Individual History Record(s) (Form DR 8404-I).
kB. Fingerprints taken and submitted to local authority. (State authority for master file applicants.)
C. Purchase agreement, stock transfer agreement, and or authorization to transfer license.
D. List of all notes and loans.
V. CORPORATE APPLICANT INFORMATION (If Applicable)
5 A. Certificate of Incorporation (and/or)
❑ B. Certificate of Good Standing if incorporated more than 2 years ago.
5 C. Certificate of Authorization if foreign corporation.
5 D. List of officers, directors and stockholders of parent corporation (designate 1 person as"principal officer").
VI. PARTNERSHIP APPLICANT INFORMATION(If Applicable)
❑ A. Partnership Agreement(general or limited). Not needed if husband and wife.
VII. LIMITED LIABILITY COMPANY APPLICANT INFORMATION (If Applicable)
r) A. Copy of articles of organization (date stamped by Colorado Secretary of State's Office).
.IN B. Copy of operating agreement.
❑ C. Certificate of Authority(if foreign company).
VIII. MANAGER REGISTRATION FOR HOTEL AND RESTAURANT,TAVERN LICENSES WHEN INCLUDED WITH THIS
APPLICATION
❑ A. $75.00 fee.
❑ B. Individual History Record (DR 8404-I).
DR 8404(06/00) 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? ❑
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);
(a) been denied an alcoholic beverage license? ❑ El
(b) had an alcoholic beverage license suspended or revoked? ❑
(c) had interest in another entity that had an alcoholic beverage license suspended or revoked? ❑
If you answered yes to 7a,b or c,explain in detail on a separate sheet.
Ba. Has a liquor license application(same license class),that was located within 500 feet of the proposed premises,been denied within the
preceding two years?If"yes,"explain in detail. ❑ El
8b. Has a 3.2 beer license for the premises to be licensed been denied within the preceding one year?If"yes,"explain in detail. ❑
9. Are the premises to be licensed within 500 feet of any public or private school that meets compulsory education requirements of ❑ 10
Colorado law,or the principal campus of any college, university or seminary?
10. Has a liquor or beer license ever been issued to 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)?If yes,identify the name of the business and list any ❑ Cal
current financial interest in said business including any loans to or from a licensee. NONE IN COLORADO. DOUBLE K GROCERIES IN
11. Does the Applicant,as listed on line 2 of this application,have legal possession of the premises for at least 1 year from the date that OKLAHOMA.
this license will b sued by virtue of ownership,lease or other arrangement? 7[] ❑
❑ Ownership Q 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:
LapARLDISUS INVESTMENTS, LLC dlorcTeant
n'a,RINE STATION, LLC Expires
15 YEARS
Attach a diagram and outline 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)
12. 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
•
SHELL CAPITAL COMMERCIAL FINANCE N/A 2329 S.W. 15TH ST. , $9,950,000
EDMOND, OK 73013
PARADISUS INVESTMENTS.LLC N/A 91-2112762 CO-BORROWER WITH APPLICANT
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.
13. Optional Premises or Hotel and Restaurant Licenses with Optional Premises - Yes No
A local ordinance or resolution authorizing optional premises has been adopted. N/A ❑ ❑
Number of separate Optional Premises areas requested.
14. Liquor Licensed Drug Store applicants,answer the following:
(a) Does the applicant for a Liquor Licensed Drug Store have a license issued by the Colorado Board of N/A Yes No
Pharmacy?COPY MUST BE ATTACHED. ❑ ❑
15. Club Liquor License applicants answer the following and attach:
(a) Is the applicant organization operated solely for a national,social,fraternal,patriotic,political or athletic purpose and 5 ❑
not for pecuniary gain? N/A
(b) Is the applicant organization a regularly chartered branch,lodge or chapter of a national organization which is ❑ ❑
operated solely for the object of a patriotic or fraternal organization or society,but not for pecuniary gain?
(c) How long has the club been incorporated? (d) How long has applicant occupied the premises
(Three years required) to be licensed as a club?(Three years required)
16. Brew-Pub License Applicants answer the following: N/A
(a) Has the applicant received or applied for a Federal Brewers Notice? ❑ ❑
(Copy of notice or application must be attached)
17a. Name of Manager STEVE C. PRENTICE (If this is an application for a Hotel, Date of Birth
Restaurant or Tavern License,the manager must also submit an Individual History Record(DR 8404-I).
17b. 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. ❑ ]
18. 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 the applicant currently have an outstanding tax distraint issued to them by the Colorado Department of Revenue? ❑ E
If yes, provide an explanation and include copies of any payment agreements.
DR 8404(06/00) Page 4
19. If applicant is a corporation,partnership,association or a limited liability company,it is required to list by position all officers and directors,
general partners, managing members, all stockholders,partners(including limited partners)and members who have a 10%or greater
financial interest in the applicant.All persons listed here or by attachment must submit and attach a DR 8404-I(Individual History Record)
and provide fingerprint cards to their local licensing authority.
NAME HOME ADDRESS,CITY&STATE DATE F POSITION °/0 OWNED
BIRTH
KENNETH KNIGHT 13508 GREEN CEDAR, OKLAHOMA CITY, OK
MEMBER 22%
20. Has the Applicant provided,or does the applicant intend to provide their staff with server training. Yes No
Additional Documents to be submitted by type of entity •
❑ CORPORATION ❑ Cert.of lncorp. ❑ 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)
®LIMITED LIABILITY COMPANY E Articles of Organization ❑ Cert.of Authority(if foreign company) ® Operating Agrmt.
❑ ASSOCIATION OR OTHER Attach copy of agreements creating association or relationship between the parties
Registered Agent(if applicable) Address for Service
MARK MEYER 1200 SEVENTEENTH ST. , SUITE 3000, DENVER, CO 80202
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 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 Sig rte
tube ' Title Date
J
REPORT AND APPROVAL OF LOCAL LICENSING AUTHORITY(CITY/COUNTY)
Date application filed with local authority 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.
Each person required to rile DR 8404-I: Yes No
a.Has been fingerprinted ❑ ❑
b.Background investigation and NCIC and CCIC check for outstanding warrants conducted
c.The local authority has already coed.::,:-.:,or intends to conduct,a premise inspection to insure that the applicant is ❑ ❑
in compliance with,and aware of,liquor code provisions affecting their class of license.
If not,does the authority want the state to conduct such an inspection. (date of inspection) ❑ ❑
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.
Local Licensing Authority for Telephone Number ❑ TOWN,CITY
O COUNTY
Signature Title Date
Signature(attest) Title Date
If premises are located within a town or city,the above approval should be signed by the mayor and clerk,if in a county,then by the chairman
of the board of county commissioners and the clerk to the board. If,by ordinance or otherwise,the local licensing authority is some other official,
then such approval should be given by such official.
LEASE AGREEMENT
THIS LEASE, made and entered into this day of , 2001, by
and between Paradisus Investments, LLC, a Colorado limited liability company,
hereinafter referred to as "Lessor", and Alpine Station, LLC, a Colorado limited
liability company, hereinafter referred to as "Lessee".
WITNESSETH:
1. Lessor desires to grant, demise and lease unto Lessee certain real estate
situated at
and further described as follows, to wit:
Subject to easements, restrictions, reservations, and zoning regulations of
record.
The premises to be leased to the Lessee includes a building of approximately
square feet---being utilized as a convenience store; gasoline pumps and
underground gasoline storage tanks adjacent to such building and associated with the
convenience store operation; a car wash facility adjacent to the convenience store
building; together with paved parking areas and driveways located upon the real estate.
2. The term of this lease shall be for fifteen (15) years. This lease §hall not
be construed to be a month to month lease during the fifteen (15) year term thereof.
3. This lease shall commence on the day of 2001, and shall
run for fifteen (15) years from that date. The rental that Lessee shall pay to Lessor for
the above-described premises shall be paid monthly on the first day of each month
in the amounts set forth in the schedule attached as Exhibit A. In the event any
monthly rental payment shall be more than five (5) days late, then a late fee of 5% of that
monthly rental shall be imposed upon Lessee, and shall be paid by it forthwith.
4. Upon the signing of this lease agreement, the first month's rental, in the
total amount of $ , shall be paid in advance. All subsequent lease payments
shall be due and payable on the 1st day of each month in the respective amounts set
forth in the schedule attached as Exhibit A.
5. This lease shall not automatically renew at the end of the fifteen (15) year
term, but rather, this lease shall then terminate, unless the Lessee exercises its options
to renew the lease as provided in this paragraph. The Lessee shall have two
consecutive options to renew the term of this lease as follows: provided that Lessee is
not then in default under this lease, Lessee shall have the option to extend the term
for an additional period of five (5) years ("first extended term") by giving notice to
Lessor of Lessee's exercise of the first option at least ninety (90) days prior to the
expiration of the initial fifteen (15) year term. Upon expiration of the first extended
term, and provided that Lessee is not then in default under this lease, Lessee shall
then have the option to extend the term of this lease for an additional five (5) years
beyond the first extended term by giving notice to Lessor of its exercise of the second
option at least ninety (90) days prior to the expiration of the first extended term. If
the Lessee does pursue a five year option to renew the lease, the monthly rental shall be
at a lease rate of the then current lease rate, plus two percent per annum beginning on
the first month of the applicable extended term.
If the Lessee does not pursue a renewal option, the premises shall be vacated at no
later than 5:00AM on the day following the last day of the term of the lease. The
failure of the Lessee to surrender the premises on the termination of the term of this lease,
and the subsequent holding over by Lessee, with or without the consent of Lessor, shall
result in the creation of a tenancy from month to month, at a monthly rental equal to the
monthly rental immediately preceding such termination, and payable as set out above,
during the month to month tenancy. This provision does not give Lessee any right to
hold over at the expiration of the term of this lease. All other terms and conditions of this
lease (except those provisions relating to the option to purchase) shall remain in full force
and effect during any month to month tenancy hereunder. Nothing herein shall prohibit
Lessor from bringing any action to evict Lessee in the event it shall fail or refuse to
vacate the premises upon the termination of this lease.
6. Lessee shall purchase from current operator all of the inventory of
gasoline, merchandise, and other supplies at the convenience store and the car wash, as of
2
. The parties agree that an Inventory Services Company shall perform
an inventory of such items no later than , and Lessee shall thereafter pay
to current operator the value of such inventory forthwith upon the completion of the
inventory by an Inventory Services Company. Such inventory, merchandise, and
supplies shall be valued at , and not the retail value of such
inventory.
7. Lessee shall use the premises let for the purpose of conducting a
convenience store business and car wash, or similar and related business activities;
provided, however, that the Lessee shall have the right to assign or sublet part or all of
the premises with the written consent of the Lessor, which shall not be unreasonably
withheld; and provided further that any such assignment or subletting shall not relieve the
original Lessee of liability for payments or performance due under this agreement. Any
sublease shall be conditional upon the premises being used as a convenience store and car
wash unless otherwise agreed.
8. Lessee agrees that it will conduct its business at least hours
per day, and in a lawful manner and in good faith, and will abide by all-ordinances and
regulations affecting the premises and businesses operated on said premises, with
particular regard to the cleanliness and safety in the occupation and use of the same.
9. In the event additional fixtures or equipment are necessary for the
operation of Lessee's business, any costs for purchase or maintenance of such items shall
be the responsibility of Lessee. Any additional lighting, equipment, fixtures, and exterior
sign shall be approved by the Lessor in writing prior to the installation thereof.
10. Lessee shall maintain, at its expense, the interior and exterior of the
building, together with any fixtures belonging thereto, the gasoline pumps and tanks, the
car wash fixtures and equipment, any plumbing systems, electrical systems, air
conditioning systems, pipes', glass, doors, and the gasoline pumps and tanks, in good
repair and shall take good care of the property and fixtures which are the subject of this
lease and shall allow no waste thereto. Lessee shall maintain the parking area during the
term of this lease, and shall keep the same in good, neat and clean condition, free from
debris and other trash at all times. Lessee shall maintain the cleanliness of the
convenience store building at all times during the term of this lease.
3
11. Lessor shall have the right to enter upon the leased premises at all
reasonable hours for the purpose of inspecting the same. If any reasonable repairs or
cleanup should be deemed necessary, Lessor may make demand upon the Lessee for
such repairs or cleanup, and such demand shall be in writing. If Lessee refuses or
neglects to commence and complete such repairs or cleanup within thirty (30) days of the
written demand, Lessor may make, or cause to be made, such repairs or cleanup, the cost
of which shall be immediately due and payable by Lessee hereunder.
12. All changes or alterations of the premises shall be made only upon the
written approval of Lessor, which approval shall not be unreasonably withheld. Any such
changes or alterations shall be at Lessee's sole expense. All such changes or alterations
shall comply with all laws, ordinances, and regulations applicable to the city,
county, and state in which the real estate is located, shall be paid for by Lessee so as to
avoid any liens or other claims for payment by contractors and other third parties, and
shall also be subject to approval of the insurance underwriters.
13. Any alterations, additions or improvements installed by Lessee which
become part of the real estate being leased hereunder, shall remain and become property
of the Lessor. Any improvements which are placed on the real estate and which are
removable without damage to the building or other structures or fixtures, shall remain
personal property and shall remain the property of Lessee and said personal property may
be removed from the premises by the Lessee at or prior to the expiration or termination of
this lease.
14. In the event any of the building structure, gasoline pumps or tanks, or car
wash fixtures or equipment, including any related roof, plumbing, heating, air
conditioning, or electrical systems fail, partially or completely, and as a result of such
failure, damage occurs to the fixtures or personal property owned by Lessee, any such
loss or damage shall be borne by Lessee, and Lessor shall have no responsibility or
liability for such loss,'or for any loss to Lessee's business by way of lost profits or
otherwise.
15. Lessee, at its expense, agrees to carry broadform liability insurance on
the premises, with limits of a least $500,000.00 per person, $1,000,000.00 per accident,
and $500,000 for property damage. Lessee, at its expense, shall also obtain fire, wind,
4
and other extended coverage sufficient to fully repair or replace the premises in the event
of fire or other damage. In addition to the above insurance coverages, Lessee, at its
expense, shall further obtain and maintain Underground Storage Tank Liability Insurance
with coverage as mandated by the State of Colorado. Lessee shall name Lessor in any
insurance policy or policies obtained as an additional named insured, and will furnish
Lessor with current certificates of insurance.
16. In the event that the leased premises shall become uninhabitable, whether
by fire, tornado or other storm, explosion or earthquake, or any other unavoidable
casualty, the Lessor may, if it so elects, either rebuild and put the premises in condition
so as to be fit for occupancy within a reasonable period of time, or may give notice in
writing thus terminating this lease. Lessor shall not be required to rebuild. If Lessor
elects to rebuild the premises, it will give Lessee reasonable notice of such intent, and
then proceed with reasonable speed to effect the same. Lessee shall not be obligated to
pay any rent from the time of such destruction or damage until the premises are again fit
and ready for occupancy.
17. Lessee shall indemnify and hold Lessor harmless from any and all
liability or loss, costs (including attorney's fees), damages, and expense in connection
with Lessee's use of the Remises, or claims for damages as a result of injury to or death
of any person or property damage to any property sustained by Lessee, or anyone else,
which arise from or in any manner grow out of any use of the premises or any act of
neglect on or about the premises by Lessee, its agent, employees, customers, invitees,
contractors, or subcontractors.
18. If, as part of its business, Lessee stores or allows or suffers any
hazardous or foreign substances to spill upon or to enter the ground, then Lessee shall
defend and hold Lessor absolutely harmless therefrom, both during the term of this lease
and at any time thereafter. ,
19. Lessee ,warrants that it had full opportunity to examine the leased
premises, and it accepts the same, as is, where is, except that the parties agree that Lessor
shall perform the work or repairs set out in the attachment hereto, which work or repairs
shall be completed within the times set out in such attachment.
5
20. Lessee agrees that it is familiar with the operation of the business that is
the subject of this Lease, and with the operation of convenience stores, gas stations, and
car washes in general. Lessee has knowledge of and is familiar with the relationships
between Lessor and various suppliers of gasoline and merchandise for the convenience
store operation and the car wash operation. Lessor has made no promises or
representations guaranteeing the future profitability of the convenience store operation or
the car wash operation, and the parties understand and agree the future profitability of
such businesses is not a condition of this lease agreement and shall not be a basis for
modification or termination of this lease by Lessee.
21. Ad valorem property taxes and installments of special assessments
shall be paid by Lessor, and Lessee shall reimburse said payments to Lessor within
thirty (30) days of the date the Lessee receives an invoice from Lessor for
reimbursement of said ad valorem tax payments and/or installments of special
assessments. Lessee's failure to reimburse Lessor for said payments within the time
stated above shall constitute an event of default on the part of the Lessee. Any
inventory or personal property taxes, sales taxes, or other taxes of any kind shall be the
sole responsibility of the Lessee, including any penalties or interest thereon. Ad valorem
property taxes and installments of special assessments for 2001 shall be prorated as of
. Ad valorem property taxes and installments of special assessments for
the final year of the term of this lease shall be prorated as of the date of termination of the
lease. Inventory and personal property taxes for 2001 shall also be prorated as of
. Inventory and personal property taxes for the final year of the term of
this lease shall be prorated as of the date of termination of the lease.
22. Lessee agrees to pay all utilities used in connection with its business,
including any initial fees or deposits.
23. Time is of She essence of this agreement and, should the Lessee fail to
make the payments alid/or reimbursements at the times and places indicated, or if
Lessee shall violate or neglect any covenant or agreement or stipulation contained herein,
and said default shall continue for a period of ten (10) days after written notice to cure is
given, then, in addition to any other remedies now or hereafter provided by law, the
Lessor may, at its option, cancel or annul this lease.
6
If Lessee is in default, Lessor may, at the expiration of said ten (10) day
period, remove all persons, furniture, fixtures, equipment, and inventory from the leased
premises, and/or take any other action or remedy provided for by Colorado law, and in
addition thereto, Lessee shall be liable for all consequential damages owed on account of
its default. If by reason of default or breach on the part of Lessee in the performance of
any of the provisions of this Lease, enforcement of Lessor's rights under this lease if
undertaken or legal action is instituted, Lessee agrees to pay all reasonable costs and
attorney's fees in connection therewith, if Lessor prevails. It is agreed that the venue of
any legal action brought under the terms of this lease shall be in
Colorado.
At the termination of this Lease, Lessee agrees to surrender the premises
in neat and clean condition, said condition to be substantially the same as received at the
beginning of this lease, normal wear and tear alone excepted.
24. Upon termination of this lease, all equipment which was present or
utilized in the business operation as of , together with any equipment
purchased by Lessee thereafter as replacement or trade-in for any such equipment, shall
be and remain the property of Lessor, and shall not be removed from the premises by
Lessee, and such equipment shall be returned or delivered to Lessor upon the termination
of this lease in good working order, normal wear and tear alone excepted.
25. Nothing contained herein shall be deemed or construed by the party, or by
any third party, as creating a relationship of principal and agent, or a partnership, or a
joint venture between the Lessor and Lessee.
26. Lessee shall not permit the premises to be encumbered by mortgage,
mechanic's liens, or other liens or encumbrances caused or suffered by Lessee.
27. The terms, conditions and covenants contained in this agreement shall be
binding upon the parties hereto and their respective heirs, executors, successors, and
assigns.
28. No changes or modifications of this agreement or any of the terms thereof
shall be valid unless in writing and signed by both parties.
29. Any notices given, or required to be given, under the provisions of this
lease, shall be in writing. Any notice or documents required or permitted to be given or
7
delivered hereunder shall be sent by certified mail, return receipt requested, when
deposited in the United States Mail, Postage Prepaid, addressed to the parties hereto at
their respective addresses set out after their names below:
Lessee: Alpine Station, LLC
c/o Kenneth L. Knight
2329 SW 15th Street
Edmond, OK 73013
Lessor: Paradisus Investments, LLC
c/o Kenneth L. Knight
2329 SW 15th Street
Edmond, OK 73013
and
c/o Bryan J. Beaver
Carter Petroleum Products, Inc.
6000 Metcalf
Overland Park, KS 66201
30. The parties agree that in the event Lessee shall be a corporation, a limited
liability company, a limited partnership, a limited liability partnership, or a partnership,
then the individual shareholders, partners, or members of such corporation or entity
shall be individually bound by the terms of this lease agreement, and shall be jointly and
severally liable with the corporation, limited liability company, limited partnership,
limited liability partnership, or partnership, for the obligations set out herein. Provided
that, in the event of Lessee's assignment of this lease which complies with
paragraph seven (7) above, then such individual shareholders, partners, • or
members of Lessee shall, from the effective date of the assignment, be relieved of
any individual, joint, and several liability for the obligations of Lessee set forth in
this lease. In addition to the execution of this agreement by the business entity, any such
shareholders or partners shall execute this lease agreement in their individual capacities.
31. Bankruptcy of the Lessee shall be considered a Breach of this Agreement,
and upon the filing of any such bankruptcy, Lessee on demand shall immediately
surrender possession of the premises to Lessor.
8
IN WITNESS WHEREOF, we have executed this lease on the day and year first
above written.
Lessee: Alpine Station, LLC
by:
Kenneth L. Knight, Member
by:
K.C. Kelley, Member
by:
Jim Davis, Member
by:
Kevin Kalies, Member
Lessor: Paradisus Investments, LLC
by:
Kenneth L. Knight, Member
Carter Petroleum Products, Inc., Member, by
Bryan J. Beaver, its President
430757_2.DOC
9
EXHIBIT "A"
SCHEDULE OF MONTHLY RENTAL PAYMENTS
1. Years one through three (months 1 through 36): $
2. Year four (months 37 through 48): $
3. Year five (months 49 through 60): $
4. Year six (months 61 through 72): $
5. Year seven (months 73 through 84): $
6. Year eight (months 85 through 96): $
7. Year nine (months 97 through 108): $
8. Year ten(months 109 through 120): $
9. Year eleven (months 121 through 132): $
10. Year twelve (months 133 through 144): $
11. Year thirteen (months 145 through 156): $
12. Year fourteen (months 157 through 168): $
13. Year fifteen (months 169 through 180): $
NOTE FOR DRAFT PURPOSES: IN YEAR FOUR, RENT WILL INCREASE SIX
PERCENT OVER THEJ(ENT FOR YEARS ONE THROUGH THREE. EACH
YEAR AFTER YEAR FOUR, RENT WILL INCREASE TWO PERCENT PER
YEAR.
•
10
SALES AGREEMENT
(Improved Land)
Earnest Money
PART I
SPECIAL TERMS r
THIS AGREEMENT made and entered into this alsrday of ,hirurL , 2001
("Effective Date"), by and between CONOCO INC., a Delaware corporation and KAYO OIL COMPANY, a
Delaware corporation (collectively "Seller"), and CARTER PETROLEUM PRODUCTS, INC., or assigns, a
Missouri corporation ("Buyer").
WITNESSETH:
Seller hereby agrees to sell to Buyer, and Buyer hereby agrees to buy from Seller, upon and
subject to the terms and conditions hereinafter set forth, the property or properties described in Exhibit"A"
attached hereto and made a part hereof, together with all and singular the tenements, hereditaments,
buildings, fixtures, improvements, and appurtenances pertaining thereto and situated thereon ("Property"
or"Properties"), along with all equipment and inventories, except the equipment deleted from Exhibit"C."
SECTION 1 SALES PRICE
The sales price ("Sales Price") of the Property or Properties shall be Nine Million Three Hundred
Thousand Dollars ($9,300,000), payable as follows:
Earnest Money of Ninety-three Thousand Dollars ($93,000) shall be payable within five (5) days
from date hereof. Within thirty (30) days from the Effective Date, Buyer must provide Seller a comfort
letter from a reputable financial institution which states that adequate financing is available to allow Buyer
to purchase the Properties. If Buyer is unable to provide a comfort letter from a reputable financial
institution within thirty (30) days from Effective Date. Earnest Money will be refunded and the Agreement
terminated. However, if after receipt of a comfort letter, this transaction does not close because of
Buyer's failure to obtain financing, earnest money will be retained by Seller.
Balance $ 9,207,000 payable on the Closing Date to Title Company.
SECTION 2 ALLOCATION OF SALES PRICE
The value to be`iaocated to land, building, and equipment has been negotiated by the parties and
is set out on Exhibit"B"which is attached hereto and made a part hereof.
SECTION 3 PART II AND OTHER ATTACHMENTS
This Part I and any attachments hereto, including Part II and the various Exhibits, are hereinafter
referred to as the "Agreement."
SECTION 4 CLOSING DATE
Date: May 15, 2001
Place: Title Company
or such other date and place as may be mutually agreed upon by the parties ("Closing Date"). •
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SECTION 5 TITLE COMPANY
Name: Title Services, Inc.
Address: 6061 Willow Drive, Suite 150
Englewood, CO 80111
Attention: Cathy Coca
Telephone: (303)779-9555
Facsimile: (303)779-0761
SECTION 6 NOTICES
Notices shall be sent by overnight express mail, certified mail, or personal delivery. The date of
service will be the date on which notice is received by the noticed party. Notices shall be sent to the
following addresses:
To Seller: To Buyer:
Conoco Inc. Carter Petroleum Products, Inc.
13059 E. PeakviewAve., Suite 110 ItO-NW-Parkway (OOOO METCALV
Centennial, CO 80111 Riverside, Missouri 64150, OUGRLAN , B,&k, kS b c
Attn: Randy Amen Attention: Mr. Robert J. McCall
Telephone: (303)649-4044 Telephone: X3&3-) Q13- (D Zi - ?no.
Facsimile: (303)649-4182 Facsimile: (303)
with copy to:
Ken Knight
c/o Weschad, Inc.
2329 SW 15th Street
Edmond, OK 73013
4O5-34( - agoo
SECTION 7 CONTAMINATION CRITERIA
7.01 Soil Contamination - The measured concentration of hydrocarbons in the soil underlying
the Property shall not exceed the applicable Colorado Department of Labor and
Employment Oil Inspection Section (OIS) standards effective as of the date hereof,
unless provided to the contrary hereinafter.
Subsurface Soils:
a) Benzene shall not exceed 0.26 milligram per kilogram (ppm).
b) Ethylbenzene shall not exceed 200 milligram per kilogram (ppm).
c) Xylenes shall not exceed 1900 milligram per kilogram (ppm).
d) Toluene shall not exceed 170 milligrams per kilogram (ppm).
e) Total"-Petroleum Hydrocarbons shall not exceed 500 milligrams per kilogram
(PPm).
f) In the event that Total Petroleum Hydrocarbons exceed 500 milligrams per
kilogram (ppm), testing will proceed pursuant to Section 7.7 of 7 C.C.R. 1101-14.
The PAH RBSLs shall not exceed the limits set out in Table 7-3 of 7 C.C.R.
1101-14.
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and
7.02 Groundwater Contamination - The measured concentration of the motor fuel constituents
in the groundwater underlying the Property shall not exceed the levels currently
applicable to the Property pursuant to the Colorado Maximum Contaminant Limit (MCL),
as provided hereinafter:
a) Benzene shall not exceed 5 micrograms per liter(ppb).
b) Ethylbenzene shall not exceed 680 micrograms per liter(ppb).
c) Toluene shall not exceed 1,000 micrograms per liter(ppb).
d) Total Xylenes shall not exceed 10,000 micrograms per liter(ppb).
SECTION 8 ADDITIONAL SPECIAL PROVISIONS
8.01 Buyer agrees to keep the Properties branded Conoco for a period of ten (10) years from
the Closing Date, and to ensure that agreement to this provision is obtained from any subsequent buyer if
Buyer sells the Properties. Buyer and Seller agree that this provision does not create an obligation on
Seller's part to supply Conoco brand light oil products to Buyer or any subsequent buyer.
8.02 On the Closing Date, Buyer shall execute in recordable form, an option to purchase the
Properties in the event Buyer, or Buyer's successor in interest debrands a Property. Seller's option to
purchase as set forth in this paragraph shall expire ten (10) years from the Closing Date. The form of
option to purchase is attached hereto and made a part hereof as Exhibit"A-1."
8.03 On the Closing Date, Buyer shall execute in recordable form, a Right of First Refusal to
repurchase the Properties in the event Buyer receives an acceptable bona fide offer to purchase from a
third party. Seller's Right of First Refusal as set forth in this paragraph shall expire ten (10) years from
the Closing Date. The form of Right of First Refusal is attached hereto and made a part hereof as
Exhibit"A-2."
8.04 Before the Closing Date, Buyer must obtain liquor licenses for the applicable Properties.
If Buyer has not obtained the applicable liquor licenses, closing shall not occur and Seller shall have the
right to terminate this Agreement and retain all Earnest Money paid hereunder.
8.05 On the Closing Date, Seller will assign to Buyer as lessor the "Hair Sensations and
Associates" Lease located at 1260 14th Street S.W. Loveland, Colorado, and the "Subway"'ease located
at 3851 Highway 119, Longmont, Colorado, copies of which are attached hereto as Exhibits A-3 and A-4
respectively.
8.06 In the event Buyer assigns this Agreement and Buyer's assignee closes on the
transaction, Buyer will have no further obligation under this Agreement.
•
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8.07 At closing, in addition to Sales Price, Buyer will deposit sufficient money into escrow to
"pay off'and terminate the car wash leases at the following locations:
Store# Address
06437 9201 Huron, Thornton, CO
06396 680 E. 84th Avenue, Thornton, CO
06350 7199 Federal Boulevard, Westminster, CO
06319 19001 W. Quincy Avenue, Aurora, CO
06391 2880 S. Circle Drive, Colorado Springs, CO
06395 6740 N. Academy, Colorado Springs, CO
8.08 Before the Closing Date, Buyer and Seller will conduct a walk through to determine if the
Equipment is in working order.
8.09 Buyer will build a public restroom at Store No. 06312, 15351 E. Iliff Avenue, Aurora,
Colorado by July 31, 2001. SEPTEm BER. 28 , aoo I . \ 'cry
8.10 Buyer agrees to first offer Seller branding rights for all units which Seller supplies or will
supply light oils to in the Front Range of the Rocky Mountains. If Buyer assigns this Agreement, this
provision will apply to Carter Petroleum Products, Inc. as well as to its assignees.
IN WITNESS WHEREOF the parties hereto have fully executed this Agreement in triplicate, the
date first above written.
CARTER PETROLEUM•PRODUCTS, INC. CONOCO INC.
By: By:
Printed Signature: =y (L; i/ J,< Printed Signature: Vk eQi ` SC T \-u l be12Sk
Buyer Seller
Tile: Title: , i c o(Geld -! nJ _ Fit
Tax Identification Number: 'IS- O S&4 ?a_ Tax Identification Number 73-0196000
KAYO OIL COMPANY
By: \
Printed Signature: \✓AL-ekic SkiWIGc,SCi
Buyer .$et\er
Title: V Ie 6 -ekes 1 NEn,T'
Tax Identification Number: 62-0609963
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•
PART II
GENERAL TERMS AND CONDITIONS
FOR REAL ESTATE PURCHASES
SECTION 1 TITLE PROCEDURES
1.01 Seller shall, within ten (10) days from the Agreement date set forth in Part I, at Seller's
sole cost and expense, make available to Buyer:
(a) A title commitment issued by the title company referred to in Part I, paragraph 5
("Title Company")which shows the conditions under which the Title Company will issue to Buyer its policy
of owners or leasehold title insurance insuring against title defects of the Property or Properties ("Title
Commitment"). (The title commitment shall be at Buyer's cost.)
(b) Any site plot plan and survey which Seller may already have in its possession,
describing the location, size, and boundaries of the Property or Properties.
(c) Copies of significant or relevant information contained in Seller's files relating to
title or to leasehold interest in the Property or Properties, including, but not limited to, all building plans
and other engineering files including those relating to leaks from, installation, repair and replacement of
underground tanks and lines, spills and condition of soil and groundwater, abstracts, title reports, surveys
and plats.
(d) A detailed list of all of the tanks, lines, dispensers, pumps, sign boxes and poles,
air compressors, light fixtures, cash registers, coolers, freezers, furniture, office machines, and other
items of operating equipment owned by Seller on or before the Closing Date located on the Property or
Properties ("Equipment"), which list shall be attached hereto as Exhibit"C." The Equipment will be in
operating condition on the Closing Date. Other than the fact that the Equipment will be in operating
condition on the Closing Date, Buyer is purchasing the Equipment on an AS IS WHERE IS basis and
Seller EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
(e) A copy of any leases and operating agreements that pertain to the Property or
Properties which Seller desires to assign to Buyer. Buyer may reject any-that it does not wish to acquire
and Seller will be responsible for terminating those not assigned.
1.02 Buyer shall have twenty (20) days after receipt of the Title Commitment in which to
examine same and notify Seller whether the title to or interest in the Property is marketable in Seller. If
Buyer finds that title to or interest in the Property is not marketable in Seller, Buyer shall notify Seller in
writing of the exceptions in the Title Commitment which render title to or interest in the Property
unmarketable, and Seller, at Seller's cost, shall have twenty (20) days thereafter in which to attempt to
cure same and render the title or interest marketable. If Seller does not cure the defect giving rise to such
exception within such period of twenty (20) days, then Buyer shall have the rights set forth herein in
para;,lraph 7.03.
1.03 Buyer shall also have a reasonable time, not to exceed five (5) days from`and after the
date of execution of Part I, to examine title to the Equipment to satisfy itself that Seller presently holds
free and unencumbered title thereto. If Buyer should determine that there are any defects in Seller's title
to the Equipment, Buyer shall advise Seller of said defects and Seller shall have a period of thirty (30)
days from date of notification in which to cure said defects.
1.04 The cost of any owner's policy or leasehold policy of title insurance shall be paid by
Seller.
1.05 If any license or permit required for the operation of the Property or Properties is
transferable, Seller will transfer such permits or licenses to Buyer. In addition Seller shall convey to Buyer
all of Seller's interests in any easements and rights of way appurtenant to Seller's ownership of the
Property or Properties. Buyer shall assume responsibility for obtaining all required permits or licenses
required for the operation of the business it desires to operate on the Property or Properties.
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1.06 Buyer shall have access to the Property or Properties for purposes of performing pre-
closing surveys and tests; provided, however, that Buyer shall indemnify and hold Seller harmless from
and against all losses, damages, demands, claims, suits, and other liabilities, including attorneys' fees
and other expenses of litigation, because of personal or bodily injury or property damage resulting from
Buyer's surveys or tests.
1.07 Before the Closing Date, Seller will secure a current ALTA survey showing all
improvements for all of the Properties and Buyer will reimburse Seller one-half (1/2) the cost on the
Closing Date.
SECTION 2 REPRESENTATIONS AND WARRANTIES
2.01 To the extent that Seller and Buyer are corporations, Seller and Buyer represent and
warrant from the date hereof to the Closing Date that:
(a) They are corporations duly organized, validly existing, and in good standing
under and by virtue of the laws of their respective states of incorporation and are duly qualified to do
business wherever necessary to perform their obligations under the Agreement.
(b) They have full legal power to enter into and perform the terms of the Agreement.
(c) The execution, delivery, and performance of the Agreement have been duly
authorized by all necessary corporate action.
2.02 Seller hereby represents and warrants that:
(a) On the Closing Date Seller will hold marketable title to the Property or Properties,
or its leasehold estate in the Property or Properties, as the case may be, as well as the Equipment and
inventories thereon, free and clear of all liens and leasehold interests placed thereon by Seller.
(b) Seller has not: entered into any agreements or arrangements other than this
Agreement for the sale and disposition of the Property or Properties, or granted any preferential right to
purchase any of the assets comprising the Property or Properties.
(c) To the best knowledge of Seller on the Closing Date (i)the Property or Properties
is not subject to any law, ordinance, regulation or other restriction prohibiting the use of the Property or
Properties as now used by Seller; (ii)the location of the buildings, pump islands, and signs, as now
situated on the Property or Properties, does not violate any setback law, ordinance, or regulation; and
(iii) Seller currently has sufficient right to use the existing driveways on the Property or Properties for the
purpose of ingress and egress to and from streets or highways upon which they abut.
(d) Seller has no obligation to any third parties involving the Property or Properties,
as well as the Equipment and inventories thereon, that Buyer would be obligated to assume except those
that have been previously disclosed in writing to Buyer by Seller.
(e) The Property or Properties are operated by employees, and not by franchisees,
dealers, or lessees.
(f) Between the date of this Agreement and the Closing Date, Seller will not change
its pricing policy, levels of inventories, staffing, or any other material operating policy at tike Property or
Properties, such that any or all of the Property or Properties would experience a decrease in business,
cash flow, or customer volume as a result thereof.
(g) None of the persons employed by Seller and working at the Property or
Properties ("Employees") are subject to contracts between Seller and any union or collective bargaining
unit, and none of the Employees have filed Unfair Labor Practice charges or claims, or any similar
charges or claims, with the National Labor Relations Board, or any state or local labor relations board or
commission, except those that>'1ave been previously disclosed in writing to Buyer by Seller.
•
SECTION 3 PAYMENT OF SALES PRICE, CLOSING DOCUMENTS AND PROCEDURES
3.01 On the Closing Date, Buyer shall wire transfer the Sales Price, less any deposited
Earnest Money, to the escrow account of the Title Company in immediately available funds.
3.02 On the Closing Date, Seller shall deliver to Buyer title and possession of the Property or
Properties and shall execute and tender to Buyer the following:
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(a) A general warranty deed or deeds conveying marketable title to the Property or
Properties to Buyer.
(b) A good and sufficient assignment of any leased Property or Properties.
(c) Good and sufficient bills of sale transferring good and marketable title to all
owned Equipment and inventories to Buyer.
(d) A nonforeign affidavit given pursuant to Section 1445 of the Internal Revenue
Code of 1986 wherein Seller states that withholding of tax is not required upon the sale of the Property or
Properties to Buyer because Seller is a U.S. person and not a non-resident alien, foreign corporation,
foreign partnership, foreign trust, or foreign estate for purposes of U.S. taxation.
3.03 All escrow fees, recording fees, and other closing costs shall be paid one-half by Seller
and one-half by Buyer, except as otherwise provided in this Agreement.
3.04 On the Closing Date, representatives of Seller and Buyer shall jointly conduct inventories
to determine the quantity of:
(a) All saleable gasoline, kerosene, and diesel fuel owned by Seller on the Closing Date
located on the Property or Properties ("Light Oil Inventory"). Within ten (10) days from Seller's invoice,
Buyer shall pay Seller for all gasoline and diesel fuel at a price equal to the Rack Price for Conoco
branded gasoline and diesel fuel at the normal supply terminal to the Property or Properties on the date of
the inventory plus the cost of short haul freight from the supply terminal to the Property or Properties.
Kerosene will be invoiced at cost.
(b) All saleable motor oils, antifreeze, and merchandise owned by Seller and located on
the Property or Properties on the Closing Date, including, without limitation, all foods, staples, drinks,
beverages, tobacco products (excluding cigarettes), toiletries, and other various and sundry items
("Merchandise Inventory"). Such Merchandise Inventory shall not include soft drink mix, soft drink cups,
bulk coffee, coffee cups, bulk popping corn, popcorn boxes, paper bags, napkins, and other supplies not
priced separately by Seller for retail sale, and cleaning supplies and other operating and maintenance
supplies not held for retail sale, owned by Seller on the Closing Date located on the Property or
Properties ("Miscellaneous Merchandise"). Within ten (10) days after date of Seller's invoice, Buyer shall
pay for the Merchandise Inventory, excluding Miscellaneous Merchandise, computed at seventy-two
percent (72%) of Seller's established retail price therefor in effect on the date of inventory.
Notwithstanding anything contained herein, cigarettes shall be invoiced at cost. Within the same period
after date of Seller's invoice fo Miscellaneous Merchandise, Buyer shall pay Seller therefor, computed at
Seller's actual cost. Seller shall provide Buyer with evidence of such cost upon Buyer's request.
3.05 Anything contained in this Section 3 to the contrary notwithstanding, Buyer shall have no
obligation to purchase any inventory which is unfit for use or resale.
3.06 Seller shall notify alt of the utility companies servicing the Property or Properties that
services on behalf of Seller shall be terminated effective as of the Closing Date, and in this regard, Seller
shall promptly pay for all charges or fees relating to such utility services supplied prior tb the Closing
Date.
3.07 Any and all trade names, trademarks, brand names, labels, insignia, or imprints
identifying Seller, its subsidiaries, affiliates, or divisions, shall be and remain the property of Seller, and
shall not be conveyed to Buyer hereunder.
7
REALEST\COLORADO\CARTER PETROLEUM SALES AGT
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March 20,2001
SECTION 4 ENVIRONMENTAL
4.01 Prior to, and within sixty(60) days of the Closing Date, Seller shall cause all underground
tanks, product lines and other associated piping and vent systems relating to the storage or dispensing of
motor fuel, heating oil or waste oil, at the Property to be tested for tightness using the "Petrotite" test, or
other test mutually acceptable to the parties. The tanks and lines shall be considered tight if net liquid loss
does not exceed 0.05 gallons (190 ml) per hour. Seller shall choose the contractor subject to Buyer's
approval, and pay for the cost of the tank and line tests. The results of such test, which shall be furnished
to Buyer at least thirty (30) days prior to the Closing Date, shall be final and binding upon the parties
hereto. In addition, Seller shall furnish Buyer with copies of any previous underground tanks and/or
product lines testing conducted within the past two years. If requested by Buyer, Seller shall furnish
copies of tank inventory records for the past year.
4.02 If a tank or product vent line does not pass tightness testing pursuant to paragraph 4.01
above, Seller shall elect to either repair said tank or product or vent line, or credit Buyer at closing with
the cost for removing the existing tank or product or vent line, and for acquiring and installing a tank or
product or vent line of the same size and type.
4.03 Prior to the Closing Date, Seller and Buyer shall cause an Environmental Investigation of
the soil and groundwater underlying the Properties which is attached and to be conducted by a mutually
agreed upon contractor in accordance with the scope of work set in Exhibit "D" which is attached hereto
and made a part hereof to determine whether the concentration of contamination, if any, is greater than
the Texas Action Levels. The cost of the Environmental Investigation will be shared equally by Seller and
Buyer. The results of such tests shall be final and binding upon the parties hereto. Should the soil and
groundwater testing levels exceed analytical detection limits but be less than the Texas Action Levels,
Conoco will report the results to the State.
4.04 If, as a result of the Environmental Investigation, or other investigations, contamination
exceeding the Texas Action Levels is found prior to the Closing, Seller shall be obligated to investigate
and define the full lateral and vertical limits of the contamination and remediate same to the satisfaction of
the appropriate regulatory agency. In order for Seller to remediate the contamination, Seller and Buyer
shall on the Closing Date, execute the Remediation and Indemnification Agreement which is attached and
made a part hereof as Exhibit-1E."
4.05 Buyer's representatives shall have the right to be present at all testing done pursuant to
this Section 4; provided, however, that Buyer shall indemnify and hold Seller harmless from and against
all losses, damages, demands, claims, suits, and other liabilities, including attorneys' fees and other
expenses of litigation, because of personal injury or property damage incurred by riuyer'c representatives
attending such tests. Seller shall notify Buyer in advance of the date and time of an tests.
4.06 If either Buyer or Seller determines that the environmental contamination is of such a
magnitude that the Property should not be sold hereunder, then the party making the determination shall
give written notice to the other party that this Agreement is terminated for the referenced Property and
Seller will refund to Buyer any Earnest Money paid hereunder for that Property.
SECTION 5 ALLOCATION OF LIABILITIES, INDEMNITIES, DEFENSE OF ACTION
5.01 Buyer agrees (o indemnify and hold harmless Seller, and any and all of Seller's
subsidiaries and affiliates„irtdividually and jointly, and the directors, officers, employees, contractors, or
agents of any of them from and against any claims, demands, suits, losses, employment termination or
transfer claims or suits, liabilities, administrative enforcement actions, government actions, penalties, or
remedial actions, (and for all expense of suits, attorneys' fees, and all costs), including but not limited to
claims, demands, suits, losses, or liabilities caused by or resulting from, growing out of, or incidental to
causes of action which arise after the Closing Date.
8
REALESTCOLORADOICARTER PETROLEUM SALES AGT
11 sites
March 20,2001
5.02 Seller agrees to indemnify and hold harmless Buyer, and any or all Buyer's subsidiaries
and affiliates, individually and jointly, and the directors, officers, employees, contractors, or agents of any
of them from and against any claims, demands, suits, losses, employment termination or transfer claims
or suits, liabilities, administrative enforcement actions, government actions, or penalties (and for all
expense of suits, attorneys' fees, and all costs), including but not limited to claims, demands, suits,
losses, or liabilities caused by or resulting from, growing out of, or incidental to causes of action which
arose while Seller owned or controlled the Property or Properties. The above notwithstanding, Seller is
giving no environmental indemnities hereunder. Seller's environmental indemnities are in the
Remediation and Indemnification Agreement, if one was required.
5.03 The indemnifying party shall also, at its sole cost and expense, investigate, handle,
respond to, and provide defense for any claim, demand, or suit, loss or liability for which it gives indemnity
herein.
5.04 Each indemnified party shall notify the indemnifying party immediately of any claim,
demand, or suit, loss or liability that may be presented to it by any claimant, affording such indemnifying
party full opportunity to assume the defense of such claim, demand, or suit and to protect itself under the
obligations of this Section.
SECTION 6 EMPLOYEES
6.01 Buyer is not purchasing an ongoing business but is purchasing fixed assets and
inventory, and Buyer shall not be considered a successor to Seller for the purpose of any claims or
charges for unemployment compensation, worker's compensation, Fair Labor Standards Act violations,
Occupational Safety and Health Act violations, Equal Employment Opportunity violations, or any similar
federal, state or local statutes or regulations.
6.02 Buyer shall have no obligation to employ or offer employment to any of the Employees
but shall have the right to interview and offer employment to any or all Employees. BUYER AGREES
NOT TO INTERVIEW OR TALK WITH ANY EMPLOYEES UNTIL SELLER HAS GIVEN BUYER
WRITTEN CONSENT.
SECTION 7 DEFAULT -
7.01 Time is of the essence in this Agreement.
7.02 Seller shall keep and maintain the Property or Properties in good condition and repair
and deliver the same to Buyer in the same condition as they now are, ordinary wear and tear excepted,
and Seller shall maintain in full force and effect existing fire and extended coverage insurance on the
Property or Properties, it being understood that the risk of loss, damage or destruction thereof by fire or
otherwise prior to the Closing Date shall rest with Seller. In the event that all or part of the Property or
Properties is lost, damaged or destroyed by fire or otherwise prior to the Closing Date, Buyer shall have
the option to
(a) accept the Property or Properties in their then present condition along with a
negotiated reduction of the Sales Price to reflect the change in value; or
(b) reject the aforesaid part of the Property or Properties and cancel this Agreement as
to the aforesaid part of the Property or Properties.
7.03 In the event on the Closing Date that:
(a) Seller fails or is unable to cure any defects in title to or interest in any part of the
Property or Properties and Buyer is unwilling to accept title to that part of the Property or Properties
subject to such defect; or
(b) A substantial portion of any part of the Property or Properties has been
appropriated or taken by a public authority or any other party exercising the right of eminent domain, and
Buyer is not willing to accept title to that part of the Property or Properties, together with the award paid or
9
REALEST\COLORADO\CARTER PETROLEUM SALES AGT
11 sites
March 20,2001
•
payable, less the land and related improvements condemned or appropriated, and pay the Sales Price
therefor(which Buyer shall have the right to do); or
(c) The operation of a retail gasoline and convenience food store and car wash on
any part of the Property or Properties constitutes an illegal, nonconforming use under the applicable
zoning laws, ordinances, or regulations; or
(d) Buyer obtains an accurate survey showing that any part of the Property or
Properties varies materially in location, size, boundaries, easements, encroachments, or setback, in a
way that would interfere with the use of the Property or Properties as a retail motor fuel and convenience
food store and car wash, from the description set forth in Exhibit "A;" or
(e) Buyer, through no fault or delay of its own, has been unable to obtain all the
necessary permits to authorize the operation of a business currently being or previously conducted
thereon with respect to the Property or Properties, including, without limitation, licenses or permits for fast
moving consumable items such as beer (other than permits, if any, unavailable until Buyer receives title to
the Property or Properties unless Buyer has reasonable grounds to believe that such permits will not be
issued after Buyer receives title; or
(f) Seller is unable to terminate its lease with any tenant occupying the Property as
of the date hereof;
Then, in the event that one or more of the above described conditions listed in
subparagraphs (a), (b), (c), (d), (e) and (f) of this paragraph 7.03 exist with respect to any part of the
Property or Properties, Buyer, at its option, shall have the right either to:
(i) cancel the Agreement as to that part of the Property or Properties and be
relieved of all obligations as to that part of the Property or Properties; or
(ii) purchase the Property or Properties without any reduction in the Sales Price.
7.04 If the parties fail to close on all of the Properties because of one or more of the conditions
listed in paragraph 7.03 above, any Earnest Money paid by Buyer shall be promptly returned to Buyer. If
the parties fail to close on any of the Properties due to a default by Buyer, and if earnest monies have
previously been paid, Seller's sole and exclusive remedy shall be to retain such Earnest Money as
liquidated damages.
SECTION 8 TAXES
8.01 All real, persoeal, and ad valorem taxes for the current taxable year assessed against the
Property or Properties shall be prorated to the Closing Date as though paid in arrears between Seller and
Buyer, said proration to be based on one hundred five percent (105%) of the prior year tax bill, unless the
current year tax assessment for the Property or Properties is established. Any special assessments
assessed against the Property will be paid in their entirety by Seller on the Closing Date.
8.02 The expo:ise of all revenue stamps, transfer taxes, and/or charges levied against the
transfer of the Property or Properties or the documents evidencing such transfer shall be paid by Seller.
For the purpose of calculating such charges the parties agree to use the value of the Property shown in
the Allocation of Sales Price set out in Part I, paragraph 2.
8.03 Buyer shall be entitled to recover any motor fuels taxes which are included in the price of
the Light Oil Inventory to be paid to Seller.
8.04 Any sales or use tax due with respect to the sale of the Equipment or inventories shall be
paid by Buyer, provided howevef, if Seller is assessed any sales or use tax, Buyer will pay same. Buyer
shall furnish Seller with resale exemption certificates as to sales taxes on the inventories as well as
certificates showing payment of any sales or use taxes on the Equipment.
the CIGsin,ateY
8.05 Buyer and Seller agree that this transaction is not subject to the reporting requirements of
Section 1060 of the Internal Revenue Code of 1986, as amended. Both parties agree to timely inform the
other if it is subsequently determined that such reporting is required.
10
REALESTICOLORADOICARTER PETROLEUM SALES AGT
11 sites
March 20,2001
SECTION 9 MISCELLANEOUS PROVISIONS
9.01 In the event Buyer and Seller have a dispute under this Agreement, they both undertake
to explore resolution of the dispute through negotiation, mediation, or similar alternative dispute resolution
techniques before pursuing full-scale litigation. If either party believes that the dispute is not suitable for
such alternative dispute resolution techniques, or if such techniques do not produce results satisfactory to
the parties, either party may proceed with litigation.
9.02 In the event the parties are unable to resolve any dispute by the alternative techniques
described in paragraph 9.01 above, and either party proceeds with litigation, the losing party shall pay the
prevailing party's attorneys'fees.
9.03 The parties agree that the provisions of Part I, Section 8 and all warranties, indemnities
and other such obligations created in this Agreement shall survive the Closing Date and shall be valid and
enduring legal obligations between the parties and their respective successors and assigns.
9.04 The section headings contained in this Agreement are for the convenience of the parties
only and shall not be interpreted as part of this Agreement.
9.05 Waiver by one party of the other's breach of any provision of this Agreement shall not be
deemed a waiver of any subsequent or continuing breach of such provision or of the breach of any other
provision or provisions hereof.
9.06 Neither party shall assign this Agreement or any rights hereunder without the written
consent of the other party unless such assignment is made for the purposes of a tax deferred exchange
or to a customer of assignor or to a person controlling, controlled by, or under common control with
assignor, in which event assignor shall remain responsible for nonperformance. Neither party shall
unreasonably withhold its consent to the assignment of this Agreement.
9.07 Seller shall be responsible for any and all realtors' or brokers' fees or commissions.
Buyer acknowledges that Buyer has not entered into any agreements with realtors or brokers on the listed
properties.
9.08 Part I, and the attachments thereto (including this Part II) contain the entire Agreement of
the parties; there are no other promises, representations or warranties. Any modification of this
Agreement shall be by written instrument executed by duly authorized representatives of the respective
parties. Any conflict between Part I and this Part II shall be resolved in favor of Part I. Any conflict
between Part I or Part II and any other attachment to this Agreement shall bF esolved in favor of the
other attachment.
•
11
REALEST\COLORADO\CARTER PETROLEUM SALES AGT
11 sites
March 20.2001
EXHIBIT"A"
Property Descriptions
12
REALES11COLORADO\CARTER PETROLEUM SALES AGT
11 sites
March 20.2001
r- - S-r0RC # 0 big_
--...-\
LEGAL DESCRIPTION J
A TRACT OF LAND LOCATED IN THE SEI/4 OF SECTION 3, TOWNSHIP 2
NORTH, RANGE 68 WEST"OF THE 6TH P.M., COUNTY OF MID; STATE OF
COLORADO, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST_CORNER 9F SAID SECTl9 l 3, THENCE
SOUTH ant WEST p1STANCE.-"O 448:0 FELT TO &POINT: -
-NocTHENCEE SOU TH $W* ' WEST Na THE MINER,NORTH RIGHT
OF RUTS`N " 1?9 --'O1S1ANCE OP TQ8.0 FEET
A OLSNANC,EDISTANCE OF S 'A A WYE
A DISTANCE aF 63 Y- 10 A �lH RIGHT OF WAY
OF.COLORADO HW .'. to Y<ALDNG So RIGHT
OF WAY 346 van TO'^A . or 9EDINNIN% EXCEPT THAT PORTION
CONVEYED TD'THE D 'OF HIG}IWAYS .STATE OF COLORADO
BY DEED RECORDED DECEMBER 2, 1970 IN BOOK 636 AS RECEPTION
N0. 1556306.
ALSO EXCEPT THAT PORTION CONVEYED TO DEPARTMENT OF
TRANSPORTATION, STATE OF COLORADO, BY DEED RECORDED
AUGUST 18. 1997 IN BOOK 1621 AS RECEPTION NO. 2563828.
PARCEL CONTAINS (201,220 SQUARE FEET) 4.6194 ACRES.
S'toR£ 64358
LEGAL DESCRIPTION
AS PROVIDED
A TRACT OF LAND IN THE RANCH ACRES SUBDIVISION. SITUATED IN
SECTION 35, TOWNSHIP 6 NORTH, RANGE 69 WEST OF THE 6TH P.M.,
WHICH CONSIDERING THE EAST UNE OF SAID SECTION 35 AS BEARING
SOUTH 00 DEGREES 07 MINUTES EAST, AND WITH ALL BEARINGS
CONTAINED HEREIN RELATIVE THERETO, IS CONTAINED WITHIN THE
BOUNDARY LINES WHICH BEARS NORTH 88 DEGREES 33 MINUTES
WEST, 80.01 FEE, AND AGAIN NORTH 00 DEGREES 07 MINUTES WEST,
60.01 FEET FROM THE EAST QUARTER CORNER OF SAID SECTION 35,
AND RUN THENCE NORTH 00 DEGREES 07 MINUTES WEST, 150.00 FEET;
THENCE NORTH 88 DEGREES 33 MINUTES WEST, 270.10 FEET TO A
POINT ON THE EAST UNE OF GRANITE STREET; THENCE ALONG SAID
EAST UNE SOUTH 00 DEGREES 07 MINUTES EAST 150.00 FEET; THENCE
SOUTH 88 DEGREES 33 MINUTES EAST, 270.10 FEET TO THE POINT OF
BEGINNING.
COUNTY OF LARIMER, STATE OF COLORADO.
PARCEL CONTAINS (40,500 SQUARE FEET) 0.9298 ACRES.
i
fet STaRS 040357
LEGAL DESCRIPTION
LOT 1, BLOCK 1, SHERRI-MAR SIXTH AODMON, TO THE CITY OF
LOVELAND, COUNTY OF LARIMER, STATE OF COLORADO.
PARCEL CONTAINS (33,815 SQUARE FEET) 0.7763 ACRES.
•
,.
LEGAL DESCRIPTION
LOT 1,
TEXACO MINOR SUBDIVISION,
COUNTY OF JEFFERSON,
STATE OF COLORADO,
FORMERLY KNOWN AS:
Q-SUPERETTE PCD ACCORDING TO FINAL DEVELOPMENT PLAN AND
PLAT RECORDED APRIL 6, 1989, IN BOOK 100, PACE 11, RECEPTION NO.
89029738, A RESUBDNISION OF LOTS 1 & 2, UNITED METHODIST MINOR
SUBDMSION, A PART OF THE NORTHEAST QUARTER OF SECTION 26,
TOWNSHIP 3 SOUTH, RANGE 69 WEST OF THE 6TH P.M., JEFFERSON
COUNTY, COLORADO.
PARCEL CONTAINS (41,623 SQUARE FEET) 0.9555 ACRES.
of
rSToke 460(0431
- LEGAL DESCRIPTION
LOT 1,
CONOCO CENTER SUBOIVISION FILING NO. 1,
COUNTY OF ADAMS,
STATE OF COLORADO.
PARCEL CONTAINS (49,235 SQUARE FEET) 1.1303 ACRES.
•
.5'70 RE, # b1.310
r—
L LEGAL DESCRIPTION
LOT 1,
BLOCK 1,
NORTH VALLEY CONOMART SUBDIVISION FLING NO. 1.
COUNTY OF ADAMS,
STATE OF COLORADO.
PARCEL CONTAINS (29,962 SQUARE FEET) 0.6878 ACRES.
II
STORE, 46 b 1.3 So
LEGAL DESCRIPTION
LOT 1,
BLOCK 1,
WESTMINSTER CONOCO SUBDIVISION FILING NO, 1,
EXCEPT THAT PORTION CONVEYED IN DEED RECORDED JUNE 28, 1993
IN BOOK 4099 AT PAGE 264,
COUNTY OF ADAMS,
STATE OF COLORADO.
PARCEL CONTAINS (25,166 SQUARE FEET) 0.5777 ACRES.
S'7oRE # 0431 a
— — -- —
LEGAL DESCRIPTION II
LOT 6,
BLOCK 1,
SAGE EAST sueosvistou FILING NO. 1,
COUNTY OF ARAPAHOE,
STATE OF COLORADO.
PARCEL CONTAINS (28,610 SQUARE FEET) 0.8568 ACRES.
•
� I
s`r.. *0,,,14 _ \\
LEGAL DESCRIPTION
LOT 1, BLOCK 1, HIGHPOINT SHOPPING CENTER SUBDIVISION FILING NO.
3, COUNTY OF ARAPAHOE, STATE OF COLORADO.
PARCEL CONTAINS (55,121 SQUARE FEET) 01.2654 ACRES.
_ •
�....,_ _�7 _ - SERE `O b 3 9 I _____ _T y
LEGAL DESCRIPTION
•
LOT 4 IN BLOCK 1 IN A REPLAT OF HARRISON SUBDIVISION F1UNG NO. 1,
A SURVEY CORRECTION PLAT CORRECTING HARRISON SUBDIVISION
FILING NO. 1, IN THE CITY OF COLORADO SPRINGS, EL PASO COUNTY,
COLORADO, EXCEPT THAT PORTION CONVEYED TO THE DEPARTMENT
OF TRANSPORTATION BY WARRANTY DEED RECORDED SEPTEMBER 1,
1998 AT RECEPTION NO. 98125127.
PARCEL CONTAINS' (29858 SQUARE FEET) 0.6854 ACRES.
I
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k 00395 ,
S-roR.�+ *
- D. ----- FON RECORDED .NBOOK L .-- - y-' R ,-- ., y '' µ z,K ji h {n zte.Se i L r k C .$
That portion,of Biock 6 .in Yorkshire,. Estates .as- rogotod{i`i ° -?r a' , ,Bof ,y '` , ,
nx .9��e r^Ge„ ° +°a'�A5 -- ta�9 a� a, -, - - hod& _ Wr
H-2 at .Fage 1. Of the Records ^ yrgfr , �
follows: ,d� `M -r y. ;,
'E r r +e� ail � ` 4 Aµ2H,
commencing att-the southwest ,coril:er of • Said Block 6 , rtin�east:q 'I.y ,�ti� e4 ,
southerly •boundary 'o€ sara Yorkshire' Estates,, ,a�:,das.taxtce{u�t ,5'8-z 7?tf ' d
to the. 'PPOINT O?' BEGINNINQG^'of the_ tfact, herein de5Gr1bedl . h2ehpe aig.Y �
left 9460 ,' 57'' northerly!. 215 . 5'G�'.;feet to interseab the sos therl ; gulf rr,
of way line :of York :goad- in said,;Yorkshire -Estates;; thepce,�,apgle rfg, aiir H
59°50 ' 45" to. :the tangent ,of a curve on said southerly rig11t of way .
of York; Rop.d,,:. thence northeaster:lyr on said curve to, the , .eft, wkrSc r - 1
has' a cnt eral;; angle of 04'°31 '15k".;;- a radius of 630, 0:0 teet�'1 and an rs y r'- t
length of 49: $'3 _feet, thence 'continue northeasterly Rost the d'onther,. s
it' way line of said York Road .on, the .forward=ta gsent t o 9,aSt,me i r `
o- �,
curve 1 52 kit; thence cc�nta.ni��+�,aa;a ter ly apci Sbli��eas �r �{, ii1� t{>{.,e:„�,� �
southerly ri _ t of way line Of said York, goad on e "aux've., `Q >+ttLe ra•> h€m5 ,
which curve has a central angle_1of 90°00 '•OQ','', a radius () „00 t.01#4 � r.
and an arc length of 78: 5.4 fe „;" � a&oint on the ,south"w0� e.&3-y_ rrg ,��
oaf way line • Atip__- .'O. j °a "Y4. P�.;y e e continue 'southea erly on said'
southwesterly" • of way line of Academy Boulevard on tier forward ,..
tangent to the last mentioned curve 131 . 03 ,feet; thence southeasterhy'-
along said southwesterly right of way on a curve to the right which cork,
has a central angle of 14°13 ' 18'" , a radius of 5'60. 27 feet°, 'and an are, .
length of 139. 07 feet to the southeasterly corner of said :Yorkshiret
-Estates; thence angle right 110°47 '32" from the forward tangent of the T
last mentioned, curve westerly on the southerly boundary gf said, Yorkhaty `-.
Estates 10 . 77. feet; thence angle left 00°16 '44" along said southerly ' ": . -
boundary 241'."00 feet to the POINT OF BEGINNING, and contaiining 44 , 631` -
square feet (1 .025 acres) by description "F
ALONG WITH a parcel of land more : fully described as follows : BEGINNI•NG "
at the northwest corner of a parcel described in Book 2197 at page . 17,_.:-.:,,, T.,--;; t;
o€ the records of the El. Paso County Clerk and Recorder; thence westerly:4
20 . 00 feet along the southerly right of way of York •Road, also being'the,,,:;
arc of a curve which has a central angle of 01 °49 ''08" , a radius of 63.p..;-._094
feet, and an?arc length of 20. 00 feet; thence southerly on an angle to ?
the right ..6f. 1.08'132 ' ( from the tangent) a distance of 102 . 23 feet' to r
a -point on the westerly Line of the parcel described in Book '2197 at O.4.:_egAis
17 which lies105. 00 feet north of the southwest corner of this parcel ,
thence northerly. on an angle to the right of 09°49' 12" a distance of ;110 m
feet to return to the POINT OF BEGINNING, and. .containing 962 square feet t
(0 . 022 acres ) . Total site area 45 , 593 square feet ('1 . 047 acres ) . .-
EXHIBIT A-1
Property Address:
OPTION TO PURCHASE
This Option to Purchase is made and entered into as of , 2001,by CARTER PETROLEUM
PRODUCTS, INC., a Missouri corporation ("Owner").
Owner is the owner of a tract of land in County, Colorado, as described in Exhibit A,
attached hereto and made a part hereof, together with all improvements, fixtures, and equipment located
thereon(the"Property").
Owner desires to grant to CONOCO INC., a Delaware corporation("Conoco"), an Option to Purchase the
Property under the terms and conditions hereinafter set forth.
Accordingly, for and in consideration of Ten Dollars and other good and valuable consideration, Owner
hereby grants to Conoco the Option to Purchase the Property for the period specified in paragraph 4
hereof under the following terms and conditions:
1. If Owner or Owner's successor in interest at any time during the term hereof debrands the
Property Conoco, Owner shall give Conoco immediate notice("Notice") of such debranding. Upon
receipt of the Notice, Conoco shall have sixty(60) days("Review Period") in which to exercise its Option
to Purchase.
2. In the event Conoco elects to exercise its Option to Purchase the Property, Conoco shall
so notify Owner in writing within the Review Period, and Conoco and Owner shall thereafter diligently
proceed to complete and close the purchase. During the Review Period, Conoco shall have the right to
inspect the Property, take soil samples and perform any other environmental testing it deems necessary,
and to review all Owner's files, information and data regarding the presence,if any, of pollutants or
contaminants in the air, surface water, groundwater, and soil of the Property. The price for the Property
shall be seventy percent(70%) of a current MAI appraisal during years one(1) through two(2), seventy-
five percent(75%) during years three(3)through five(5), and eighty percent(80%)during years six(6)
through ten(10). If there is a lien on the Property the proceeds of the Price will first be applied to the pay
off of any liens. The owner will receive the amount remaining after the payout of all liens.
3. In the event of a market withdrawal (as defined or explained in the Conoco Petroleum
Marketer Agreement existing between Conoco and Owner as the same may be supplemented by an
addendum thereto concerning the subject properties) from the marketing area that is applicable to the
subject property, Owner shall thereupon be permitted to discontinue the Conoco brand and shall cancel
Owner's option as herein set forth.
4. This Option to Purchase expires , , or sixty(60) days after Conoco
has received the Notice and has not exercised its Option to Purchase, whichever occurs first.
REALESTICOLORADOICARTERIOPTION TO PURCHASE
5. The addresses of the parties for notice purposes are:
Conoco Inc. Carter Petroleum Products, Inc.
Attn: Manager,Branded Marketing, Rockies Attn:
13059 E. Peakview Ave., Suite 110 100 NW Parkway
Centennial, Colorado 80111 Riverside, Missouri 64150
Any and all notices shall be either delivered in person to the addressee or sent to the addressee by
certified mail.
6. This Option to Purchase shall inure to the benefit of and be binding upon the parties hereto,
their heirs, successors, and assigns.
CARTER PETROLUM PRODUCTS, INC.
By:
Tide:
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this day of
12001, by , the of
CARTER PETROLEUM PRODUCTS, INC., a Missouri corporation, on behalf of said corporation.
Witness my hand and official seal.
NOTARY PUBLIC IN AND FOR
COUNTY
MY COMMISSION EXPIRES:
After recording retum to: -- Prepared in the law office of:
Randy Amen F. Edward Adams III
Conoco Inc. Conoco Inc.--Legal Department
13059 E. Peakview Ave., Suite 110 P. O. Box 4783,ML 2068
Centennial, Colorado 80111 Houston, Texas 77210
2
REALEST\COLORAOO\CARTER\OPTION TO PURCHASE
EXHIBIT A-2
Property address:
RIGHT OF FIRST REFUSAL
This Right of First Refusal is made and entered into as of 2001,by and
CARTER PETROLEUM PRODUCTS, INC., a Missouri corporation("Owner").
Owner is the owner of a tract of land in County, Colorado, as described in Exhibit A
attached hereto and made a part hereof, together with all improvements, fixtures, and equipment located
thereon (the"Property").
Owner desires to grant to CONOCO INC., a Delaware corporation("Conoco"), the right of first refusal to
purchase the Property under the terms and conditions hereinafter set forth.
Accordingly, for and in consideration of Ten Dollars and other good and valuable consideration, Owner
hereby grants to Conoco the right of first refusal to purchase the Property for the period specified in
paragraph 4 hereof under the following terms and conditions:
1. If Owner at any time during the term hereof receives a bona fide offer to purchase the
Property and Owner desires to sell the Property under the terms of said offer, Owner shall give Conoco
immediate notice in writing of such bona fide offer, setting forth the name and address of the proposed
purchaser who has made the offer, with a full disclosure of all terms and provisions thereof. Conoco shall
have the right of first refusal to purchase the Property on the same terms of any such proposal.
2. In the event Conoco elects to exercise its right to purchase the Property, Conoco shall so
notify Owner in writing within sixty(60) days(the"Review Period")of receipt of Owner's notice, and
Conoco and Owner shall thereafter diligently proceed to complete and close the purchase on the terms.
During the Review Period, Conoco shall have the right to inspect the Property,take soil samples and
perform any other environmental testing it deems necessary, and to review all Owner's files, information
and data regarding the presence, if any, of pollutants or contaminants in the air, surface water,
groundwater, and soil of the Property.
3. In the event Conoco elects not to exercise its right to purchase the Property(whether by
notice to Owner or failure to provide any response within the Review Period), then Conoco's rights
hereunder shall terminate and lapse, provided that Owner subsequently closes a sale of the Property
within 90 days after the end of the Review Period to any purchaser not a party hereto at a price not less
than and on terms no more favorable to the purchaser than those stated in the aforementioned notice to
Conoco. In the event the Property is not so sold within such 90 day period, then the terms hereof shall
continue to apply as though no bona fide offer to purchase the Property had been received by Owner.
4. This Right of First Refusal will expire on
5. The addresses of the parties for notice purposes are:
Conoco Inc. Carter Petroleum Products, Inc.
Attn: Manager, Branded Marketing,Rockies Attn:
13059 E. Peakview Ave., Suite 110 100 NW Parkway
Centennial, Colorado S0111 Riverside, Missouri 64150
REALEST\COLORAOOICARTER RIGHT OF FIRST REFUSAL
Any and all notices shall be either delivered in person to the addressee or sent to the addressee by
certified mail.
6. The rights of the parties hereto shall be subordinate to the aforementioned lien on the
Property.
7. This Right of First Refusal shall inure to the benefit of and be binding upon the parties
hereto,their heirs, successors, and assigns.
8. If this Property is part of a group of properties under one contract,then a fair and
reasonable allocation must be made among all the properties under the contract.
9. In the event of a market withdrawal (as defined or explained in the Conoco Petroleum
Marketer Agreement existing between Conoco and Owner as the same may be supplemented by an
addendum thereto concerning the subject properties) from the marketing area that is applicable to the
subject property, Owner shall thereupon be permitted to discontinue the Conoco brand and shall cancel
Owner's Right of First Refusal as herein set forth.
CARTER PETROLEUM PRODUCTS, INC.
By:
Title:
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this day of
, 2001,by , the of
CARTER PETROLEUM PRODUCTS,INC., a Missouri corporation, on behalf of said corporation.
Witness my hand and official seal.
NOTARY PUBLIC IN AND FOR
COUNTY
MY COMMISSION EXPIRES:
•
After recording return to: Prepared in the law office of:
Randy Amen F. Edward Adams III
Conoco Inc. Conoco Inc.--Legal Department
13059 E. Peakview Ave., Suite 110 P. O. Box 4783,ML 2068
Centennial, Colorado 80111 Houston,Texas 77210
2
REALESTCOLORADO\CARTER RIGHT OF FIRST REFUSAL
1
EXHIBIT"B"
Allocation
PROPERTY LOCATION LAND BUILDING EQUIPMENT TOTAL
Store No. 06394
3851 Hwy. 119 $800,000 $500,000 $700,000 $2,000,000
Longmont, CO
Store No. 06358
5009 N. Garfield $350,000 $300,000 $350,000 $1,000,000
Loveland, CO
Store No. 06357
1260 14th Street S.W. $300,000 $225,000 $300,000 $825,000
Loveland, CO
Store No. 06439
3790 Wadsworth Blvd. $250,000 $250,000 $250,000 $750,000
Wheatridge, CO
Store No. 06437
9201 Huron $150,000 $200,000 $225,000 $575,000
Thornton, CO
Store No. 06396
680 E. 84th Avenue $150,000 $225,000 $275,000 $650,000
Thornton, CO II
Store No. 06350
7199 Federal Boulevard $250,000 $250,000 $300,000 $800,000
Westminster, CO
Store No. 06312
15351 E. Iliff Avenue $150,000 $150,000 $150,000 $450,000
Aurora, CO
Store No. 06319
19001 W. Quincy Avenue $250,000 $250,000 $300,000 $800,000
Aurora, CO
Store No. 06391
2880 S. Circle Drive .. $250,000 $200,000 $275,000 $725,000
Colorado Springs, CO
Store No. 06395 -
6740 N. Academy $250,000 $225,000 $250,000 $725,000
Colorado Springs, CO
TOTAL $3,150,000 $2,775,000 $3,375,000 $9,300,000
N.
13
REALESTICOLORADOICARTER PETROLEUM SALES AGT
11 sites
March 20,2001
EXHIBIT"C"
[Equipment]
1
14
REALESTCOLORA0OICARTER PETROLEUM SALES AGT
11 sites
March 20.2001
Location: Store#06394
Main number Cap.date Name
10078280 6/1/90 Building
10078281 6/1/90 Canopy
10078282 6/1/90 Sign,B-9
10078283 6/1/90 Sgn,Enter&Exit
10078285 6/1/90 C-Store Equip,Dell Case
10078286 6/1/90 C-Store Equip,Walk In Cooler Shelving
10078287 411/90 Building
10078288 4/1/90 Canopy
10078289 4/1/90 Drive,Other Ground Improvements
10078290 4/1/90 C-Store Equip,Walk-In Cooler
10078291 4/1/90 C-Store Equip,Walk-In Freezer
10078292 4/1/90 Heating/Air Cond,Centrel Heat&Air Unit
10078293 4/1/90 Sign,Price &Pole
10078294 5/1/94 Tank,
10078295 5/1/94 Tank,
10078296 5/1/94 Tank,
10078297 5/1/94 Tank,
10078298 5/1/94 Tank,
10078299 5/1/94 Tank,OiWVater Separator
10078300 11/1/93 Grade/Clear Site
10078301 11/1/93 Sewers/Sanitary
10078302 11/1/93 Drive
10078303 11/1/93 Drive
10078304 11/1/93 Landscaping
10078304 12/1/00 Landscaping,Curb&Guttednigation system,Sod
10078305 11/1/93 Drive
10078306 11/1/93 Canopy
10078307 11/1/93 Pump
10078308 11/1/93 Pump
10078309 11/1/93 Pump
10078310 11/1/93 Pump,Diesel
10078311 11/1/93 Pump,Diesel
10078312 11/1/93 Piping,Double Wall _
10078313 11/1/93 Grade/Clear Site
10078314 11/1/93 Landscaping
10078315 11/1/93 Drive
10078316 11/1/93 Drive
10078317 11/1/93 Canopy,lncludes Lights
10078318 11/1/93 FenceNWall/Dike
10078319 11/1/93 Dispenser.Diesel Master
10078320 11/1/93 Dispenser
10078321 11/1/93 Dispenser
10078322 11/1/93 Dispenser
10078323 11/1/93 Dispenser
10078324 11/1/93 Dispenser,Salemaker li
10078325 11/1/93 Dispenser,Salemaker li
10078326 11/1/93 Dispenser,Master/Slave Combo
10078327 11/1/93 Dispenser,Master/Slave Combo
10078328 11/1/93 Dispenser,Master/Slave Combo
10078329 11/1/93 C-Store Equip
10078330 11/1/93 Sign,Highnse
10078331 5/1/96 C-Store Equip,lce Maker 8d0692Ns
10078332 5/1/96 C-Store Equip,ce Maker 8d0692Ns
10078333 5/1/96 C-Store Equip,Post Mix 3030Ak10Pb
10078334 5/1/96 C-Store Equip,Post Mix 3030Ak10Pb
10078335 1211/96 Heating/Air Cond,Hvac System
10078336 4/1/97 C-Store Equip,H-T-G Cabinets
10078338 4/1/97 C-Store Equip,Deli Case Gsvp15272
10078339 4/1/97 C-Store Equip,Ice Cream.Cabinet Lbn-4
10078340 6/1/97 C-Store Equip,TrendafCredit Card System
10078341 7/1/97 Building,Remodel Store Interior
10078343 2/1/98 Canopy,Conoco Red
10078344 2/1/98 Sign,Conoco Red
10085916 4/1/90 Land,
10085917 4/1/90 Land,Additional Purchase
10116321 1/1/99 Tank.Gauging TLS-350
10121761 12/1/00 Tank,Spill Containers,OPW 1-2115,5 Tanks
10121770 12/1/00 Tank.3 Tank Electronic Line Leak Detector System
Location: Store#06358
Main number Cap.date Name
10077578 10/1/89 Building, Brick Covered
10077579 10/1/89 Drive,Paving Concrete
10077580 10/1/89 Dispenser,Decade 2400 Console Cc-Sy2400-16
10077581 10/1/89 C-Store Equip,Walk-In Cooler
10077582 10/1/89 C-Store Equip,Upright Freezer UmI-2-Bs
10077584 10/1/89 C-Store Equip,Display Shelves
10077585 8/1/90 Piping
10077586 8/1/90 Tank
10077587 8/1/90 Tank
10077588 8/1/90 Tank
10077589 8/1/90 Tank,T1s250l With 3 Probes
10077590 8/1/90 Pump,1001407900
10077591 10/1/90 Landscaping
10077592 10/1/90 Building,Conoco Conversion
10077593 10/1/90 Canopy
10077594 9/1/91 C-Store Equip,Walk-In Cooler Shelving
10077595 9/1/93 Grade/Clear Site
10077596 9/1/93 Landscaping
10077597 9/1/93 Water Lines
10077598 9/1/93 Sewers/Sanitary
10077599 9/1/93 Drive
10077600 9/1/93 Landscaping
10077601 9/1/93 Building,Car Wash
10077602 9/1/93 C-Store Equip,Area Lights W/Pole
10077603 8/1/96 C-Store Equip,Booths
10077604 9/1/96 Heating/Air Cond,Hvac System
10077605 3/1/97 Car Wash,Carwash Doors
10077606 4/1/97 C-Store Equip,H-T-G Cabinets
10077607 4/1/97 C-Store Equip,lce Maker Bd692Ns
10077608 4/1/97 C-Store Equip,lce Maker Bd692Ns
10077609 4/1/97 C-Store Equip,Post Mix 10 Head 3030-Ak10
10077610 4/1/97 C-Store Equip,Post Mix 10 Head 3030-Ak10
10077612 4/1/97 C-Store Equip,Freezer Gdm-49F
10077613 6/1/97 Building,Remodel Store Interior
10077615 2/1/98 Dispenser,Adv Single Hose Mpd W/Monochrome Crind I
10077616 2/1/98 Dispenser,Adv Single Hose Mpd W/Monochrome Crind I
10077617 2/1/98 Dispenser,Adv Single Hose Mpd W/Monochrome Crind I
10077618 5/1/98 Canopy,Conoco Red
10077619 5/1/98 Sign,Conoco Red -_
10077620 5/1/98 Sign,Conoco Red
10077621 8/1/98 C-Store Equip,Intercom
10085894 10/1/89 Land
10085895 3/1/91 Land
10085896 4/1/92 Land,Road Improvements
10085897 3/1/93 Land,Special Assessment-Street Improvement
10085898 3/1/94 Land,Special Assessment-Street Improvement
10116326 1/1/99 Tank, Gauging TLS-350
10120665 2/1/00 Dispenser Drip Boxes(3)
10121768 12/1/00 Tank,3 Tank Electronic Line Leak Detector System
Location: Store#06357
Main number Cap.date Name
10077546 9/1/89 Building,Ss W/A0 Smith Hotwater Heater 75GaI Mod
10077547 9/1/89 Canopy
10077548 9/1/89 Tank,U/G Premium Unleaded
10077549 9/1/89 Tank,U/G Regular
10077550 9/1/89 Tank,U/G Regular
10077551 9/1/89 Pump,Subpump 10014088
10077552 9/1/89 Pump,Subpump 10014088
10077553 9/1/89 Pump,Subpump 10014088
10077554 9/1/89 C-Store Equip,Walk-In Cooler 1000R
10077556 9/1/89 Drive,Paving Concrete
10077557 1/1/90 Building
10077558 1/1/90 Canopy
10077559 5/1/91 C-Store Equip,Post Mix
10077560 5/1/96 C-Store Equip,lce Cream Crest Freezer Mod Lbf6
10077561 8/1/96 C-Store Equip,Walk-In-Cooler Remote Condenser
10077562 8/1/96 Heating/Air Cond,Hvac System
10077563 8/1/96 Sewers/Sanitary,3 Sewer Line Clean-Out Modificatio
10077564 8/1/96 C-Store Equip,Booths
10077565 4/1/97 C-Store Equip,H-T-G Cabinets
10077566 4/1/97 C-Store Equip,Ice Maker Bd692Ns
10077567 4/1/97 C-Store Equip,Post Mix 12 Head Ed300
10077569 6/1/97 Building,Remodel Store Interior
10077570 9/1/97 Tank, Monitor Tls 350
10077572 2/1/98 Dispenser,Adv Single Hose Mpd W/Monochrome Crind I
10077573 2/1/98 Dispenser,Adv Single Hose Mpd W/Monochrome Crind I
10077574 2/1/98 Dispenser,Adv Single Hose Mpd W/Monochrome Crind I
10077575 7/1/98 Canopy,Conoco Red
10077576 7/1/98 Sign,Conoco Red
/0085893 10/1/89 Land
10120664 2/1/00 Subpump Containmt Boxes(3) Dispenser Drip Boxes(3)
Location: Store #06439
Main number Cap.date Name
10079815 4/1/96 Sewers/Sanitary,Sewer Line/Connection On 38Th Stre
10079816 12/1/96 Car Wash,Polycarbonate Carwash Doors
10079817 1/1/97 Building,Electrical Work For Ice Maker
10079818 2/1/97 Tank,TIs-350 Wireless
10079819 2/1/97 Dispenser,Adv Mpd Blender W/Crind
10079820 2/1/97 Dispenser,Adv Mpd Blender W/Crind
10079821 2/1/97 Dispenser,Adv Mpd Blender W/Crind
10079822 2/1/97 Dispenser,Adv Mpd Blender W/Crind
10079823 2/1/97 Dispenser,Adv Mpd Blender W/Crind
10079824 2/1/97 Dispenser,Adv Mpd Blender W/Crind
10079825 2/1/97 Dispenser,Adv Diesel Disp W/Crind
10079826 2/1/97 Dispenser,Adv Diesel Disp W/Crind
10079827 2/1/92 Tank,
10079828 2/1/92 Building,
10079829 5/1/92 Building,Bldg. Conversion & Counters
10079830 7/1/92 Building,Modification To Install New Hot-To-Go
10079831 5/1/92 Canopy,
10079832 2/1/92 Building,Car Wash
10079833 5/1/92 Fence/Wall/Dike,
10079834 2/1/92 Pump,
10079835 5/1/92 C-Store Equip,
10079836 2/1/92 C-Store Equip,
10079837 2/1/92 C-Store Equip,
10079838 2/1/92 Equip-
10079839 5/1/92 Sign,
10079840 5/1/92 Sign,
10079841 12/1/94 Car Wash,Heat Mats For Entrance/Exit
10079842 7/1/92 C-Store Equip,Post Mix Drink Dispenser
10079843 2/1/92 C-Store Equip,
10079844 2/1/92 C-Store Equip,
10079845 2/1/92 C-Store Equip,
10079846 3/1/98 Building,Remodel Interior
10079847 3/1/98 C-Store Equip,Fast Food Counters
10079848 2/1/98 Canopy,Conoco Red Conversion
10079849 2/1/98 C-Store Equip,Conoco Red Conversion
10079850 2/1/98 Sign,Co9oco Red Conversion
10079851 2/1/98 Sign,Conoco Red Conversion
10079852 8/1/98 Cat Wash
10079852 1/1/99 Car Wash, Additional Cost
10085977 2/1/92 Land,
10085978 2/1/92 Land
10121749 12/1/00 Tank,Spill Containers,OPW 1-2115,3 Tanks
Location: Store#06437
Main number Cap.date Name
10078832 4/1/95 Tank,Dbl Wall Fiberglass
10078833 4/1/95 Tank,Dbl Wall Fiberglass
10078834 4/1/95 Tank,Dbl Wall Fiberglass
10078835 4/1/95 Canopy,6 Column
10078836 4/1/95 Dispenser
10078837 4/1/95 Dispenser
10078838 4/1/95 Dispenser
10078839 4/1/95 Dispenser
10078840 4/1/95 Dispenser,Pam 1000 Board
10078841 4/1/95 Grade/Clear Site
10078842 4/1/95 Water Lines
10078843 4/1/95 Sewers/Sanitary
10078844 4/1/95 Drive
10078845 4/1/95 Drive
10078846 4/1/95 Piping
10078847 4/1/95 Tank,Tank Gauging,Veeder Root TLS300i
10078847 12/1/00 Tank,Tank Gauging,Upgrade VR from 300i to 350 and
10078848 4/1/95 Building,C-Store/Car Wash
10078849 4/1/95 Fence/Wall/Dike
10078850 4/1/95 Landscaping
10078851 4/1/95 C-Store Equip,lntercom
10078852 4/1/95 C-Store Equip,Hot-To-Go Counters
10078853 4/1/95 Equip,Security Shield
10078854 4/1/95 Sign,B-3 Price
10078855 4/1/95 Car Wash,Overhead Doors
10078857 4/1/95 C-Store Equip,Ice Machine
10078858 4/1/95 C-Store Equip,ice Machine
10078859 4/1/95 C-Store Equip,Post Mix
10078860 4/1/95 C-Store Equip,Post Mix
10078861 4/1/95 C-Store Equip,Sandwich Cooler
10078863 4/1/95 C-Store Equip,Wic Shelving
10078864 4/1/95 C-Store Equip,Wic Doors
10078865 4/1/95 C-Store Equip,Wic Box
10078866 9/1/96 Car Wash,Fiberglass Walls On
10078867 2/1/98 Canopy,Conoco Red Conversion
10078868 2/1/98 C-Store E,quip,Conoco Red Conversion
10078869 2/1/98 Sign,Conoco Red Conversion
10078870 2/1/98 Sigri,Conoco Red Conversion
10085943 4/1/93 Land
10121754 12/1/00 Tank,Spill Containers,OPW 1-2115,3 Tanks
Location: Store#06396
Main number Cap.date Name
10078239 9/1/90 Grade/Clear Site
10078240 9/1/90 Landscaping
10078241 9/1/90 Fence/Wall/Dike
10078242 9/1/90 Water Lines
10078243 9/1/90 Sewers/Sanitary
10078244 9/1/90 Drive
10078245 9/1/90 Drive
10078246 9/1/90 Landscaping
10078247 9/1/90 Piping,Fiberglass Dwp
10078248 9/1/90 Tank,Double Wall Dwt-2P
10078249 9/1/90 Tank,Double Wall Dwt-2P
10078250 9/1/90 Tank,Double Wall Dwt-2P
10078251 9/1/90 Tank,Tls 250 W/3 Probes
10078252 9/1/90 Building,Car Wash
10078253 9/1/90 Canopy
10078254 9/1/90 Heating/Air Cond,Model Gcs-16-653
10078255 9/1/90 Building
10078256 9/1/90 Landscaping
10078257 9/1/90 C-Store Equip,Model Sho-400-Sma
10078258 9/1/90 C-Store Equip,Model 400-Sma
10078259 9/1/90 Dispenser,Model Pa01330000
10078260 9/1/90 Sign,Monument
10078261 9/1/90 Sign,Ko-6A Neon System
10078262 9/1/90 C-Stole Equip,Fast Food Counter
10078263 9/1/90 C-Store Equip,Sales Counter
10078264 9/1/90 C-Store Equip,Walk-In Cooler
10078265 12/1/96 Car Wash,Polycarbonate Carwash Doors
10078266 4/1/97 C-Store Equip,Ice Maker 692Ns
10078267 4/1/97 C-Store Equip,Post-Mix Ed-200
10078268 7/1/97 C-Store Equip,Intercom System
10078269 1/1/98 Dispenser,Mpd Model B8522G
10078271 1/1/98 Dispenser,Mpd Model B8522G
10078272 1/1/98 Dispenser,Mpd Model B8522G
10078273 1/1/98 Dispenser,Mpd Model B8522G
10078274 2/1/98 Canopy,Conoco Red Conversion
10078275 2/1/98 C-Store,Equip,Conoco Red Conversion
10078276 2/1/98 Sign;Conoco Red Conversion
10078277 2/1/98 $tgn,Conoco Red Conversion
10078279 9/1/98 Tank, Gauge Tls 350 W/Printer
10085915 3/1/90 Land, (Net Proceeds)
10121771 12/1/00 Tank,3 Tank Electronic Line Leak Detector System
Location: Store#06350
Main number Cap.date Name
10077191 7/1/90 Grade/Clear Site
10077192 7/1/90 Landscaping
10077193 7/1/90 Water Lines
10077194 7/1/90 Sewers/Sanitary
10077195 7/1/90 Drive
10077196 7/1/90 Drive
10077197 7/1/90 Landscaping
10077198 7/1/90 Piping,Fiberglass-Double Wall
10077199 7/1/90 Tank
10077200 7/1/90 Tank
10077201 7/1/90 Tank
10077202 7/1/90 Building,Car Wash
10077203 7/1/90 Canopy
10077204 7/1/90 Building
10077205 7/1/90 Landscaping
10077206 7/1/90 C-Store Equip
10077207 7/1/90 C-Store Equip
10077208 7/1/90 Sign,Neon Interior System
10077209 7/1/90 C-Store Equip,Walk-In-Cooler
10077210 1/1/93 Fence/Wall/Dike,Cedar Picket Fence
10077211 3/1/93 Fence/Wall/Dike,lnstallation Of Fence
10077212 5/1/96 C-Store Equip,Ice Maker Bd0692Ns
10077213 5/1/96 C-Store Equip,Ice Maker Bd0692Ns
10077214 5/1/96 C-Store Equip,Post Mix 3030Ak10Pb
10077215 5/1/96 C-Store Equip,Post Mix 3030Ak10Pb
10077216 1/1/97 Car Wash,Polycarbonate Carwash Doors
10077217 3/1/97 Car Wash,Carwash Bay Electrical & Heat Mats
10077219 2/1/98 Dispenser,Adv Single Hose Mpd W/Monochrome Crind I
10077220 2/1/98 Dispenser,Adv Single Hose Mpd W/Monochrome Crind I
10077221 2/1/98 Dispenser,Adv Single Hose Mpd W/Monochrome Crind I
•
10077222 2/1/98 Dispenser,Adv Single Hose Mpd W/Monochrome Crind I
10077223 2/1/98 Dispenser,Adv Single Hose Mpd W/Monochrome Crind I
10077224 2/1/98 Dispenser,Adv Single Hose Mpd W/Monochrome Crind I
10077225 2/1/98 Canopy,Conoco Red
10077226 2/1/98 C-Store Equip,Conoco Red
10077227 2/1/98 Sign,Cono2o Red
10077228 2/1/98 Sign,Conoco Red
10077230 9/1/98 Tank[Gauge Tls 350 W/Printer
10085879 3/1/90 Land
10120663 2/1/00 Dispenser Drip Boxes(4)
10121767 12/1/00 Tank,3 Tank Electronic Line Leak Detector System
Location: Store#06312
Main number Cap.date Name
10075643 4/1/84 Grade/Clear Site,Clear Grade Fill Site
10075644 4/1/84 Landscaping
10075645 4/1/84 Drive,Concrete s Islands
10075646 4/1/84 Drive,Asphalt s
10075647 4/1/84 Piping,Pipe And Fittings
10075648 4/1/84 Tank,10000 Gal Ug
10075649 4/1/84 Tank,10000 Gal Ug
10075650 4/1/84 Tank,10000 Gal Ug
10075651 4/1/84 Building, Canopy
10075652 4/1/84 Building
10075653 2/1/88 Building,Canopy Conversion C42
10075654 4/1/84 C-Store Equip,Canopy Lights Ls1 (24)
10075655 4/1/84 C-Store Equip,Shelving Package
10075656 4/1/84 C-Store Equip,Walk-In Cooler Tonka
10075657 1/1/90 C-Store Equip,Sales Counter
10075658 1/1/96 Drive,Concrete s
10075659 1/1/96 Piping,Pipe & Fittings For New Dispensers
10075660 5/1/96 Heating/Air Cond,Heat&NC Unit
10075661 5/1/96 C-Store Equip,lce Maker Bd0692Ns
10075662 5/1/96 C-Store Equip,Post Mix Ed300-Bc _
10075663 5/1/96 Landscaping,Landscape Front Curb/Bedding Area Arou
10075664 9/1/97 Tank, Monitor Tls 350
10075665 1/1/96 Dispenser,Mpd W/Crind
10075666 1/1/96 Dispenser,Mpd Blender W/Crind
10075667 1/1/96 Dispenser,Mpd Blender W/Crind
10075668 1/1/96 Dispenser,Mpd Blender W/Crind
10075670 3/1/98 Security Shield
10075671 5/1/98 Canopy,Conoco Red
1007oh72 5/1/98 Sign,Conoco Red
10085825 1/1/84 Land
10085826 4/1/89 Land,Spec Assmt
10085827 4/1/88 Land,Spec Assmt
10085828 2/1/90 Land,Sewer Assessment Rqc003625
10121734 12/1/00 Tank,Spill Containers,OPW 1-2115,3 Tanks
Location: Store#06319
Main number Cap.date Name
10075791 3/1/87 Drive,Concrete s
10075792 3/1/87 Drive,Asphalt s
10075793 3/1/87 Building
10075794 3/1/87 Canopy
10075795 2/1/88 Building,Canopy Conversion
10075796 3/1/87 C-Store Equip,Area Lights 6 Units
10075797 3/1/87 C-Store Equip,Canopy Lights 24 Units
10075798 3/1/87 C-Store Equip,Shelving Package
10075799 3/1/87 Sign,Logo 8X7
10075800 3/1/87 C-Store Equip,Kalt Walk In Mma/50
10075801 1/1/90 C-Store Equip,Sales Counter
10075802 4/1/93 C-Store Equip,Post Mix With Ice Maker
10075803 5/1/94 C-Store Equip,Nyla Trac Cooler Shelving
10075804 1 2/1/94 Tank,Tank Gauging,VR TLS300i
10075804 12/1/00 Tank,Tank Gauging,Upgrade VR from 300i to 350
10075805 1/1/96 Dispenser,s
10075806 1/1/96 Tank,U/G s
10075807 1/1/96 Landscaping
10075808 1/1/96 Water Lines
10075809 __ 1/1/96 Sewers/Sanitary
10075810 1/1/96 Drive
10075811 1/1/S6 Drive
10075812 1/1/96 Piping,Dw Fiberglass Product Lines
10075813 1/1/96 Tank,Pnstallation Of s-See Afe 4772
10075814 1/1/96 Building,Carwash
10075815 1/1/96 Canopy,Additional
10075816 1/1/96 Dispenser,Drip Boxes For s
10075817 1/1/96 Tank,Ug Fiberglass Doublewall
10075818 1/1/96 Tank,Ug Fiberglass Doublewall
10075819 1/1/96 Dispenser,Mpd Blenders W/Crind
10075820 1/1/96 Dispenser,Mpd Blenders W/Crind
10075821 1/1/96 Dispenser,Mpd Blenders W/Crind
10075822 1/1/96 Dispenser,Mpd Blenders W/Crind
10075823 7/1/97 Landscaping,Upgrade
10075825 3/1/98 Equip,Security Shield
10075826 2/1/98 Canopy,Conoco Red
10075827 2/1/98 Sign,Conoco Red
10075828 2/1/98 Sign,Conoco Red
10085833 1/1/85 Land
10085834 7/1/95 Land,Additional
10119089 9/1/99 Building, Restroom Addition
10121642 1/1/00 Car Wash,Baywatch Door Openers (2)
10121735 12/1/00 Tank,Spill Containers,OPW 1-2115,2 Tanks
Location: Store#06391
Main number Cap.date Name
10078037 5/1/90 Grade/Clear Site
10078038 5/1/90 Landscaping
10078039 5/1/90 Water Lines
10078040 5/1/90 Sewers/Sanitary
10078041 5/1/90 Drive
10078042 5/1/90 Landscaping
10078043 5/1/90 Piping,Fiberglass
10078044 5/1/90 Tank,Fiberglass
10078045 5/1/90 Tank,Fiberglass
10078046 5/1/90 Tank,Fiberglass
10078047 5/1/90 Building,Car Wash
10078048 5/1/90 Canopy
10078049 5/1/90 Heating/Air Cond
10078050 5/1/90 Building
10078051 5/1/90 C-Store Equip
10078052 5/1/90 C-Store Equip
10078053 5/1/90 Dispenser,Model A11230A
10078054 5/1/90 Dispenser,Model A11230A
10078055 5/1/90 Dispenser,Model A11230A
10078056 5/1/90 Dispenser,ModelAI1230A
10078057 5/1/90 Sign,A-3
10078058 5/1/90 Sign,Neon System
10078059 5/1/90 C-Store Equip,Walk-In
10078060 5/1/90 C-Store'Equip,Shelving
10078062 4/1/96 Dispenser,Crind Heads For sMate
10078063 5/1/96 C-Store Equip,lce Maker Bd0692Ns
10078065 5/1/96 C-Store Equip,Post Mix 3030Ak10Pb
10078067 9/1/96 C-Store Equip,lce Cream Fzr 4Ft Lbn4
10078068 1/1/97 Car Wash,Polycarbonate Carwash Doors
10078069 9/1/97 Tank, Monitor Tls 350
10078070 2/1/98 Canopy,Conoco Red
10078071 2/1/98 C-Store Equip,Conoco Red
10078072 2/1/98 Sign,Conoco Red
10078073 2/1/98 Sign,Conoco Red
10085909 1/1/89 Land,Nwc S Circle/Janitell
10120666 2/1/00 Dispenser Drip Boxes(4)
Location: Store #06395
Main number Cap.date Name
10078193 8/1/90 Grade/Clear Site
10078194 8/1/90 Landscaping
10078195 8/1/90 Fence/Wall/Dike
10078196 8/1/90 Water Lines
10078197 8/1/90 Sewers/Sanitary
10078198 8/1/90 Drive
10078199 8/1/90 Drive
10078200 8/1/90 Piping,Double Wall
10078201 8/1/90 Tank,Double Wall
10078202 8/1/90 Tank,Double Wall
10078203 8/1/90 Tank,Double Wall
10078205 8/1/90 Building,Car Wash
10078206 8/1/90 Canopy
10078207 8/1/90 Heating/Air Cond,Lenox
10078208 8/1/90 Building
10078209 8/1/90 Fence/Wall/Dike
10078210 8/1/90 Landscaping
10078214 8/1/90 Sign,B-6
10078215 8/1/90 Sign,lnterior Neon Package
10078218 8/1/90 C-Store Equip,Shelving-Nylatrac
10078219 8/1/90 C-Store Equip,lce Maker
10078220 8/1/90 C-Store Equip,Post Mix
10078221 8/1/90 C-Store Equip,Deli Case
10078222 8/1/90 C-Store Equip,Fast Food Counter
10078223 8/1/90 C-Store Equip,Cashier Counter
10078224 8/1/90 C-Store Equip,Walk-In Cooler
10078225 9/1/96 C-Store Equip,Post Mix 12 Head
10078226 9/1/96 C-Store Equip,lce Maker
10078228 1/1/98 C-Store Equip,Intercom System
10078230 3/1/98 Dispenser,Adv Single Hose Mpd W/Monochrome Crind I
10078231 3/1/98 Dispenser,Adv Single Hose Mpd W/Monochrome Crind I
10078232 3/1/98 Dispenser,Adv Single Hose Mpd W/Monochrome Crind I
10078233 3/1/98 Dispenser,Adv Single Hose Mpd W/Monochrome Crind I
10078234 4/1/98 Canopy,Conqco Red
10078235 4/1/98 C-Store Equip,Conoco Red
10078236 4/1/98 Sign,Connco Red
10078237 4/1/98 Sign,Conoco Red
10085914 6/1/90 Land
10116309 1/1/99 Tank, Gauging TLS-350
10121646 1/1/00 Car Wash,Baywatch Door Openers (2)
EXHIBIT"I)"
ENVIRONMENTAL INVESTIGATION SCOPE OF WORK
FOR A TYPICAL
CONOCO MARKETING REAL ESTATE TRANSACTION
1. The work program identified herein describes the activities to be performed by a Consultant
agreeable to both parties to provide an environmental assessment of the properties described in
the contract to which this is made a part. Buyer or Seller may conduct additional assessment
work beyond the scope of this agreement with the understanding that the costs shall be borne
solely by that party.
2. The intent of this environmental investigation is to detect contamination typically associated with
the operation of a retail gasoline station. In this regard it is acknowledged that this investigation
is of limited scope and is not intended to fully define the subsurface conditions at the property but
is meant to determine whether or not contamination exists on the site.
3. This investigation and report are to be performed under the direction of an experienced
professional geologist or engineer who is licensed to practice in the state in which the
investigation is being conducted.
4. The SCOPE OF WORK is to consist of the following:
(a) RECORDS REVIEW
A review of the public records available at the offices of the environmental regulatory
agencies. Data to be reviewed includes but is not limited to: records of any past spills or
releases for the site and for a % mile radius of the site existing on site monitoring wells,
well construction reports, records of past environmental investigations or audits, and
other relevant environmental information available in the public record.
(b) HEALTH AND SAFETY PLAN
A site specific Health and Safety Plan shall be developed for site investigation activities.
Sampling crews must have completed a Health and Safety training course which fulfills
OSHA regulations(OSHA 29 CFR 1910.120(e) and SARA 126).
(c) FIELD ASSESSMENT ACTIVITIES
One of the following techniques will be used for field assessments: Geoprobe®, or an
equivalent direct push probe, and/or hollow stem auger soil borings with continuous
sampling. Site specific conditions (e.g., knowledge based on previous activities and/or
investigations,_tight clays, alluvium, sands, etc.) dictate which of these techniques is the
best choice'for obtaining satisfactory, meaningful, and representative information.
Therefore); the Buyer and Seller, with input and guidance from the mutually agreed upon
Contractor selected for the environmental work, will select which one or which
combination of these techniques will be used to characterize the site.
REALEST FORMSIENVIROMENTAL INVESTIGATION
Exhibit D
[Revised 9/1/00)
Exhibit"D" Page 2 of 7
Environmental Investigation Scope of Work
for a Typical Conoco Real Estate Transaction
5.0 Soil Borings/Sampling,
5.1 The purpose of Soil Borings is to gather information on the geologic and environmental condition
of the subsurface of the site(s).
Soil Borings involve the drilling of borings using a drill rig equipped with hollow stem
auger and continuous core sampling devices. Prior to conducting any subsurface
investigation the local utilities must be notified so that they can mark their respective
easements and service. Bore holes shall be logged in the field by an experienced
geologist following the Unified Soil Classification System. Prior to commencing drilling
on the site, all drilling equipment will be decontaminated by steam cleaning and pressure
washing.
5.1.1 The locations and numbers of the borings will be agreed upon by Buyer and
Seller.
5.1.2 Two (2) borings will be drilled adjacent to the existing tank basin. The borings
will be drilled to a depth of approximately 25 feet or until auger refusal or
groundwater is encountered.
5.1.3 At sites where there have been previous investigations and the groundwater flow
direction is known, one (1) boring will be installed on, or near, the down gradient
property boundary. The borings will be drilled to 25 feet unless there is auger
refusal or groundwater is encountered. In either of the latter cases, the boring
will be terminated and a sample of the soil will be collected for analysis.
5.1.4 On sites where there have not been previous investigations, one(1)boring will be
installed at the approximate mid-point of each property line to determine if there
is offsite migration of impacted groundwater. The borings will be drilled to 25
feet unless there is auger refusal or groundwater is encountered. In either of the
latter cases, the boring will be terminated and a sample of the soil will be
collected for analysis.
5.1.5 One (1) to three (3) borings will be drilled in the vicinity of the dispenser islands
and lines. Each boring will be dr lled to fifteen feet. unless there is auger refusal
or groundwater is encountered. In either of the latter cases, the boring will be
terminated and a sample of the soil will be collected for laboratory analysis.
5.1.6 Additional borings may be drilled at other areas of the site where historical data,
observed field conditions, and/or measurements indicate potential hydrocarbon
levels that warrant further investigation. A boring located at a typical historical
location could be at the location of former tanks and/or dispenser islands. If
buyer and seller cannot agree to additional borings, then the party requesting the
additional work may do so at their own expense.
5.1.7 If groundwater is not detected in the deepest boring completed onsite, and total
volatile organic compounds levels at the maximum depth of the boring exceeds
10 ppm volatile organic hydrocarbons using a portable hydrocarbon vapor
analyzer (PID or equivalent), a boring will be completed to a depth where
groundwater is encountered, or to a depth where the PIE) readings are less than
10 ppm. If groundwater is not encountered or PM readings of less than 10 ppm
RE"PST FORMS\ENVIROMENTAL INVESTIGATION
Exhibit O
[Revised 9/7/001
Exhibit"D" Page 3 of 7
Environmental Investigation Scope of Work
for a Typical Conoco Real Estate Transaction
are not reached within 50 feet of the surface, the boring will be terminated and
the soil from the bottom interval will be sampled for laboratory analysis.
5.2 Additional soil samples may be collected at the request of the Buyer or Seller. If buyer
and seller cannot agree upon additional samples, then the party requesting the additional
samples can have the samples collected and pay the associated costs.
5.3 Continuous, undisturbed soil samples will be collected throughout the entire depth of all
borings, using split-spoon drive samplers or Shelby tubes.
5.4 All samples will be field screened for the presence of hydrocarbons using a portable
hydrocarbon vapor analyzer (PII) or equivalent). The field analysis shall be a
standardized method internally consistent throughout Consultant's work on Conoco
projects. In states where specific methods have been prescribed by regulatory authorities,
Contractor will follow the State method. Field screening values shall be recorded on the
boring logs.
5.5 The soil sample exhibiting the highest field reading from each boring will be retained for
laboratory analysis. If no obvious hydrocarbon impacts is encountered in a boring then a
single sample from the most appropriate depth will be retained for analysis (e.g., just
below the depth of any nearby lines or tanks, at the groundwater interface, from the
bottom of the boring., etc.). No composite samples will be allowed.
5.6 If groundwater is encountered, a water sample shall be collected by constructing a
temporary monitoring well in the boring. This temporary well shall be purged and
sampled using standard industry protocol. Soil at the groundwater interface should be
field screened to determine whether or not a soil sample should be collected for
laboratory analysis.
5.7 Any existing,monitoring wells or tank backfill wells shall be examined for the presence
of free product with an electronic interface probe. Water samples from existing
monitoring wells may be collected for laboratory analysis if Buyer and Seller agree that
such samples should be collected for analysis.
5.8 All samples collected for laboratory analysis shall be collected in the appropriate
containers and preserved as specified in EPA Manual SW-846. All samples for
laboratory testing should be logged on a chain of custody form and placedkin iced storage
at 4 degrees Celsius.
5.9 A sufficient number of field blanks must be taken to ensure the quality of the data.
5.10 The analytical testing of all soil and groundwater samples shall be conducted by a
reputable laboratory which specializes in this type of testing and is familiar with the
procedures outlined in EPA Manual SW 846 and 40 CFR 136. The laboratory must be
acceptable to and, if required, certified by the state in which the investigation is being
conducted.
(a) All samples are to be tested for the presence of gasoline, diesel, oil and grease as
appropriate. All testing shall be conducted in accordance with the requirements
of EPA SW 846 or other state guidelines as appropriate.
REALEST FORMSIENVIROMENTAL INVESTIGATION
Exhibit O
[Revised 9/7/00]
Exhibit"D" Page 4 of 7
Environmental Investigation Scope of Work
for a Typical Conoco Real Estate Transaction
(b) Total Petroleum Hydrocarbons (TPH) including Diesel Range Organics (DRO)
and Gasoline Range Organics (GRO) or equivalent shall be analyzed by
methodologies that comply with applicable rules of the state in which the
investigation is being conducted (example: modified version of EPA method
8015).
(c) Testing for volatile hydrocarbons, benzene, toluene, ethylbenzene, xylene
(BTEX), and MTBE shall be by EPA method 8021B.
(d) All analytical work shall be performed by a qualified individual knowledgeable
in the performance of soil and groundwater analysis for petroleum impact.
(e) All chromatograms must be reviewed and corrected for spurious data.
5.11 After the drilling and sampling are complete, the borings are to be backfilled with a neat
cement and bentonite, grout, or as specified by the state in which the investigation is
being conducted, and the surface repaired to match the surrounding conditions. All
drilling equipment shall be decontaminated by steam cleaning and pressure washing prior
to leaving the site.
6.0 Geoprobe®Assessment/Sampling
The Geoprobe®, or for the purpose of this document, "Probe" Assessment is a fast and relatively
inexpensive method of gathering information on the environmental condition of the subsurface, to
screen for the occurrence and extent of volatile compounds within the soil and groundwater
beneath the site. Environmental data gathered using a probe may only be acceptable to state
agencies as a screening tool to determine if there is, or is not, hydrocarbon impact present in the
sample. Prior to conducting any subsurface investigation the local utilities must be notified so
that they can mark their respective easements and service.
Probe pushes involve the pushing of hollow rods into the ground using a pneumatic hammer and
collecting continuous soil samples inside of the hollow push rods. Samples shall be logged in the
field by an experienced geologist following the Unified Soil Classification System. Prior to
commencing drilling on the site, all probe equipment will be decontaminated by steam cleaning
and pressure washing.
6.1 Work Scope: As a minimum, the Probe Assessments will consist of the following
items:
6.1.1 Two (2) probe pushes will be installed adjacent to the existing tank basin. The
probes will be pushed to a depth of approximately 25 feet or until probe refusal
or groundwater is encountered. In either of the latter cases, the push will be
terminated and a sample of the soil will be collected for laboratory analysis.
6.1.2 One (1) to three (3) probe pushes will be installed in the vicinity of the dispenser
islands and dispenser lines. Each will have a design depth of fifteen feet or until
probe refusal or groundwater is encountered. In either of the latter cases, the
push will be terminated and a sample of the soil will be collected for laboratory
analysis.
REALEST FORMS\ENVIROMENTAL INVESTIGATION
Exhibit D
(Revised 9/7/00]
Exhibit"D" Page 5 of 7
Environmental Investigation Scope of Work
for a Typical Conoco Real Estate Transaction
6.1.3 At sites where there have been previous investigations and the groundwater flow
direction is known, one(1)probe push will be installed at the at, or near, the mid-
point of the down gradient property line. The probe will be pushed to 25 feet or
until probe refusal or groundwater is encountered. In the latter two cases, the
push will be terminated and a sample of the soil will be collected for laboratory
analysis.
6.1.4 At sites where there have not been previous investigations, or the groundwater
flow direction is not known, one (1) probe push will be installed at the
approximate mid-point of each property line to determine if there is off site, or on
site, migration of hydrocarbon products. The probe will be pushed to 25 feet or
until probe refusal or groundwater is encountered. In the latter two cases, the
push will be terminated and a sample of the soil will be collected for laboratory
analysis
6.1.5 Additional probes may be pushed at other areas of the site where historical data,
observed field conditions, and/or measurements indicate potential hydrocarbon
levels that warrant further investigation. A probe located at a typical historical
location could be at the location of former tanks and/or dispenser islands. If
buyer and seller cannot agree to additional probe locations, then the party
requesting the additional work may do so at their own expense.
6.1.6 If groundwater is not detected in the deepest probe push completed onsite, and
total volatile organic compounds levels at the maximum depth of the boring
exceeds 10 ppm volatile organic hydrocarbons using a portable hydrocarbon
vapor analyzer (PID or equivalent), a boring will be completed to a depth where
groundwater is encountered, or to a depth where the PID readings are less than
10 ppm. If groundwater is not encountered or PID readings of less than 10 ppm
are not reached within 50 feet of the surface the boring will be terminated and the
soil from the bottom interval will be sampled for laboratory analysis.
6.1.7 Additional soil samples may be collected at the request of the Buyer or Seller. If
buyer and seller cannot agree upon additional samples, then the party requesting
the additional samples can have the samples collected and pay the associated
costs.
6.1.8 All samples will be field screened for the presence of hydrocarbons using a
portable hydrocarbon vapor analyzer (PID or equivalent). The field analysis
shall be a standardized method internally consistent throughout Consultants'
work on Conoco projects. In states where specific methods have been prescribed
by regulatory authorities, Contractor will follow the State method. Field
screening values shall be recorded on the boring logs.
REALEST F0RM51ENVIROMENTAL INVESTIGATION
Exhibit D
(Revised 9/7/00)
Exhibit"D" Page 6 of 7
Environmental Investigation Scope of Work
for a Typical Conoco Real Estate Transaction
6.1.9 The soil sample exhibiting the highest field reading from each probe push will be
retained for laboratory analysis. If no obvious hydrocarbon impact is
encountered in a boring then a single sample from the most appropriate depth
will be retained for analysis. (e.g., just below the depth of any nearby lines or
tanks, at the groundwater interface, at the maximum depth of the sampling
location,etc.). No composite samples will be allowed.
6.1.10 If groundwater is encountered, a "pull back" sampling screen tool shall be used
in the probe or a temporary well shall be installed. A groundwater sample shall
be collected by purging the screen or well and following standard industry
protocol for groundwater sampling. Soil at the groundwater interface should be
field screened to determine whether or not soil at the interface should be
collected for laboratory analysis.
6.1.11 Any existing monitoring wells or tank backfill wells shall be tested for the
presence of free product with an electronic interface probe. Water samples from
existing monitoring wells may be collected for laboratory analysis if Buyer and
Seller agree prior to the initiation of this Scope of Work that such samples should
be collected for analysis.
6.1.12 A sufficient number of field blanks must be taken to ensure the quality of the
data.
6.1.13 The analytical testing of all soil and groundwater samples shall be conducted by
a laboratory which specializes in this type of testing and is familiar with the
procedures outlined in EPA Manual SW 846 and 40 CFR 136. The laboratory
must be acceptable to and, if required, licensed by the state in which the
investigation is being conducted. All samples are to be tested for the presence of
gasoline, diesel, oil and grease as appropriate. All testing shall be conducted in
accordance with the requirements of EPA SW 846 or other state guidelines as
appropriate.
(a) All samples are to be tested for the presence of gasoline, diesel, oil and
grease as appropriate. All testing shall be conducted in accordance with
the requirements of EPA SW 846 or other state guidelines as appropriate.
(b) Total Petroleum Hydrocarbons (TPH) including Diesel Range Organics
(DRO) and Gasoline Range Organics (GRO) or equivalent shall be
analyzed by methodologies that comply with applicable rules of the state
in which the investigation is being conducted(example: modified version
of EPA method 8015).
(c) Testing for volatile hydrocarbons, benzene, toluene, ethylbenzene,
-'xylene(BTEX), and MTBE shall be by EPA method 8021B.
el) All analytical work shall be performed by a qualified individual
knowledgeable in the performance of soil and groundwater analysis for
petroleum impact.
(e) All chromatograms must be reviewed and corrected for spurious data.
REALEST FORMS\ENVIROMENTAL INVESTIGATION
Exhlbd 0
[Revised 9)7100]
Exhibit"D" Page 7 of 7
Environmental Investigation Scope of Work
for a Typical Conoco Real Estate Transaction
6.1.14 After sample collection, the probe hole shall be backfilled with a neat, cement-
bentonite grout, or as specified by the state in which the investigation is being
conducted, and the surface patched with material similar to the surrounding
surface. All probe equipment shall be decontaminated by steam cleaning and
pressure washing prior to leaving the site.
7.0. Report(s)
At the conclusion of the investigation, four reports will be prepared and signed by a responsible
professional geologist or engineer containing at a minimum:
1. Purpose of the probe and/or soil boring investigation
2. Site location map.
3. Station site layout map showing all probe points, soil boring, sampling, and
monitoring well locations(including any preexisting wells).
4. A description of the field work procedures and observations on the site resulting
from inspections of the tank and dispenser areas, including man ways, tank pit
wells or other exposures of the subsurface.
5. A description of the site geologic and hydrologic conditions encountered in the
field and interpreted from the responsible geologist's knowledge of the site and
vicinity.
6. Actual concentrations of each analyte should be shown adjacent to the sampling
location, on the appropriate station site layout maps.
7. A description of the field and laboratory procedures including QA/QC and
detection limits. Include tables summarizing all the analytical data including
field control samples, laboratory duplicates, and any other QA/QC data.
8. A discussion of the information reviewed during the public records search.
9. Conclusions of the findings.
10. Chain-of-Custody for all samples (soil and ground water).
11. Detailed bore hole logs.
12. Laboratory data documentation(hard copy).
13. The final report will be addressed to both the Buyer and Seller.
8.0 These investigations will be conducted at sites which are active commercial operations. The
Consultant is responsible for ensuring that the investigation is conducted in a manner sueit that it
causes as little disruption as possible to the business being conducted on the site.
9.0 The Consultant is responsible for ensuring the site is left in a clean and neat condition. All drill
or probe cuttings and scrap material, purge water, and hazardous materials left on the site must
be properly containerized, labeled, and properly disposed offsite at a disposal facility that has
been approved by Conoco.
•
REALEST FORMSIENVIROMENTAL INVESTIGATION
Exhibit O
[Revised 9/7/00]
EXHIBIT "E"
REMEDIATION AND INDEMNIFICATION AGREEMENT
For the Sale of a Gasoline Station
PROPERTY LOCATION
THIS REMEDIATION AND INDEMNIFICATION AGREEMENT ("Agreement") is made
as of the day of , 2001, by and between CONOCO INC., a Delaware corporation
("Conoco") and CARTER PETROLEUM PRODUCTS, INC., a Missouri corporation.
WITNESSETH:
WHEREAS, Conoco and Buyer have entered into a Sales Agreement dated
2001, under which Buyer agreed to purchase the property ("Property") described on the attached
Exhibit"A,"and
WHEREAS, on , 2001 ("Closing Date"), Conoco and Buyer closed on the
purchase of the Property, and
WHEREAS, the Property which was used as a retail petroleum marketing facility is or may
become subject to environmental assessment, investigation, response and/or remediation (collectively
"Environmental Work") for petroleum hydrocarbon contamination which occurred and was found and
identified before the Closing Date("Pre-Closing Contamination"), and
WHEREAS, as part of the consideration under the Sales Agreement for the purchase of the
Property, Conoco has agreed to perform as required or necessary Environmental Work associated with the
Pre-Closing Contamination -and provide Buyer with an indemnification for the Pre-Closing
Contamination.
IT IS HEREBY AGREED AS FOLLOWS:
1. Property Location. The Property(ies) covered by this Agreement is listed above.
2. Conoco's Indemnity.
2.1 Conoco expressly agrees to indemnify, defend and hold harmless Buyer, its
successors or assigns, including, but not limited to, any lender of Buyer making a loan or loans with the
Property being the security for such loan(s);
2.1.1 ,gainst and from all claims, loss, cost, damages, reasonable attorneys'
fees, liens or expense arising,out of the Pre-Closing Contamination;
i
2.1.2 against and from any fine, penalty, sanction, damage, charges,
government orders and demands imposed for any violations of any law, ordinance, or regulation arising
out of, or attributable to said Pre-Closing Contamination at the Property;
REALEST COLORADOICARTER PETROLEUM Remediadon B Indemnification
2.1.3 against and from any and all claims, loss, cost, damage, liens, expense,
government orders and demands on or to the Property caused by Conoco, its agents, employees or
contractors in implementing, monitoring, performing or failing to perform any Environmental Work to
abate the Pre-Closing Contamination.
2.2 In no event will Conoco or its agents or contractors be responsible for any
exemplary, punitive, indirect, incidental or consequential damages including but not limited to business
interruption at the Property and diminution of the Property's value.
3. Buyer's Indemnity.
3.1 Buyer expressly agrees to indemnify, defend and hold harmless Conoco, its
successors and assigns:
3.1.1 against and from all claims, loss, cost, damages, reasonable attorneys'
fees, liens, expense, government orders and demands arising out of any wastes, hazardous or toxic
substances, petroleum, petroleum products,petroleum contaminants, or additives spilled or released at the
Property after the Closing Date("Post-Closing Contamination").
3.1.2 against and from any fine, penalty, sanction, damage, charges,
government orders and demands imposed for any violations of any law, ordinance, or regulation arising
out of or attributable to said Post-Closing Contamination at the Property;
3.1.3 against and from any and all claims, loss, cost, damage, liens, expense,
government orders and demands on or to the Property caused by Buyer its agents, employees or
contractors in implementing, monitoring, performing or failing to perform any action to abate the Post-
Closing Contamination.
3.2 If Buyer, its employees, contractors, suppliers, agents or invitees directly or
indirectly damage or destroy Conoco's equipment and fixtures used in the Environmental Work
(collectively "Environmental Work Assets"), Buyer shall pay the replacement and installation cost of the
Environmental Work Assets damaged or destroyed.
4. Property Access. Buyer hereby grants to Conoco an irrevocable license to enter onto the
Property to permit Conoco, its agents or contractors at no cost to Buyer, to conduct Environmental Work
including, without limitation, additional site assessment, including soil and groundwater samples, to
install, service, operate, adjust the Environmental Work Assets and to remediate thee Pre-Closing
Contamination. The Environmental Work may include but not be limited to trenching under and across
the Property, excavation and over-excavation of impacted soils, installation of soil vents, probes, wells
and recovery building and the installation and running of electrical and water recovery lines to connect
the wells and vents to the remediation system to be located on the Property as well as other work required
by the regulatory authority(ies) with competent jurisdiction over the Environmental Work and/or the
Property (the "Regulatory Authority"). Conoco or its contractor(s) shall inform Buyer at least twenty-
four(24)hours in advance of alt2ctions to be taken on the Property; such notification may be in the form
of a periodic schedule of acU'vities.
5. Remedial Activities/Accommodation of Development.
5.1 Conoco makes no representation or warranty regarding the length of time
required for Conoco to complete its requirements under this Agreement.
9
REALEWPCOLORADO\CARTER PETROLEUM Remediation S Indemnification
5.2 The Environmental Work shall be accomplished in such a way as to reasonably
accommodate Buyer's business operations, within reason and subject to requirements imposed by the
Regulatory Authority. The foregoing shall include location of the Environmental Work activities, seeking
any necessary approvals from the Regulatory Authority and performing the Environmental Work.
5.3 Conoco's obligation to perform Environmental Work associated with the Pre-
Closing Contamination shall continue until the Regulatory Authority agrees to a risked based closure or
provides a statement in writing indicating that no further action is required at this time. If the Regulatory
Authority agrees to a risked based closure, then Buyer will comply with the requirements of the risked
based closure including, without limitation, the filing and recording of deed restrictions for the Property.
5.4 When the condition set out in paragraph 5.3 above is met, Conoco shall have no
further Environmental Work obligations under this Agreement.
6. Release/Limitation of Actions. Conoco's liability regarding the Pre-Closing
Contamination is limited to that specifically set out herein and all other liability and claims regarding the
existence of the Pre-Closing Contamination and the Environmental Work including, without limitation,
remediation, assessment, operations and equipment are released and waived by Buyer as part of the
consideration of the sale and of this Agreement. Buyer acknowledges that the site is or may be
contaminated with Pre-Closing Contamination and consents to the existence of Pre-Closing
Contamination, if any, at the Property.
7. Assignment of Governmental Reimbursement for Remediation Costs. Buyer hereby
assigns all of its rights to receive any reimbursement from all applicable governmental remediation
reimbursement funds to Conoco Inc. for work performed by Conoco, and at Conoco's request, will
execute an assignment document evidencing said assignment.
8. Post-Closing Contamination. In the event Post-Closing Contamination occurs at the
Property,the following shall apply:
8.1 Buyer shall be responsible for all Post-Closing Contamination.
8.2 Buyer shall notify Conoco in writing within five (5) working days of the
occurrence or finding of the Post-Closing Contamination.
8.3 Buyer will furnish copies of any correspondence to or from a regulatory agency
or third party as to site assessment(s) and corrective action(s) within fifteen (15) days of submittal to the
regulatory agency or third party.
8.4 Buyer will conduct a tank and/or line test within fifteen (15) days of the
indication of a release and furnish the results of such testing to Conoco within fifteen (15) days of receipt
of the report, unless Buyer can reasonably demonstrate that the tank(s) and/or line(s) are not the source of
the release.
8.5 In.the/event of a suspected release, and at the request of Conoco, Buyer will
furnish Conoco with copies of tank inventory records, tank and/or line testing and any other available
inventory monitoring information for the past year. An example would be an unexpected occurrence or
increase in free product in a monitor well.
8.6 If the occurrence is such that Buyer is unable to completely isolate and remove
the Post-Closing Contamination or the Pre-Closing Contamination becomes commingled with the Post-
3
REALEST\cOLORADO\CARTER PETROLEUM Remediation&Indemnification
Closing Contamination, then Conoco and Buyer shall conduct good faith negotiations to develop a cost
sharing arrangement concerning joint remediation efforts. If Buyer and Conoco have not agreed upon a
cost sharing agreement within ninety (90) days after the date of the occurrence of the Post-Closing
Contamination, either party hereto may invoke the terms and conditions of paragraph 13 below.
9. Restoration. Conoco shall, at no cost to Buyer, restore that part of the Property
disturbed by the Environmental Work to the condition substantially similar to the condition that it was in
at the date of this Agreement, including, but not limited to, filling in any trench to the grade level in
existence prior to commencement of the Environmental Work, as well as removing and closing any wells
or other Environmental Work Assets to the satisfaction of the Regulatory Authority.
10. Reports. Conoco shall provide Buyer with copies of any notices, correspondence,
manifests, reports, permits or other documents related to the contamination of the Property and the
Environmental Work to be performed when so requested.
11. Termination. This Agreement shall terminate when the condition stated in
paragraph 5.3 has been met by Conoco and Conoco sends Buyer a notice confirming same.
12. Property Transfer. Buyer agrees not to lease or sell the Property unless the lessee or
new buyer enters into the same form of this Agreement with Conoco.
13. Alternate Dispute Resolution. In the event Buyer and Conoco have a dispute under this
Agreement, they both undertake to explore resolution of the dispute through negotiation, mediation (in
accordance with the Center for Public Resources (CPR) Model Procedure for Mediation of Business
Disputes), or similar alternative dispute resolution techniques before pursuing full-scale litigation. If
either party believes that the dispute is not suitable for such alternative dispute resolution techniques, or if
such techniques do not produce results satisfactory to the parties,either party may proceed with litigation.
14. Notices. Notices shall be sent by overnight express mail, certified mail, or personal
delivery. The date of service will be the date on which notice is received by the noticed party. Notices
shall be sent to the following addresses:
Buyer: Carter Petroleum Products,Inc.
100 NW Parkway
Riverside, Missouri 64150
Conoco: Mr. William E. Rodgers
Ponca 3044
Conoco Inc.
P.O. Box 2197
Houston, Texas 77252-2197
15. Standard Provisions:
15.1 This•Agreement is made in the State of Colorado and its validity, construction
and all rights under it shall be governed by Colorado law.
15.2 This Agreement supersedes any prior agreements and contains the entire
agreement of the parties on the matters covered. No other agreement, statement or promise made by any
party or agent of any party that is not in writing and signed by all the parties to this Agreement shall be
binding. Any amendments to this Agreement shall be in writing and signed by all parties hereto.
4
REALESTICOLORADO\CARTER PETROLEUM Remediabon 8 ndemnifioaton
15.3 The provisions of this Agreement were negotiated by all the parties hereto, and
this Agreement shall be deemed to have been drafted by all the parties hereto.
15.4 This Agreement may be executed in counterparts, each of which shall be deemed
to be an original, but such counterparts when taken together shall constitute but one agreement.
15.5 The paragraph headings throughout this Agreement are for convenience and
reference only. The words contained herein shall not be held to expand, modify, amplify or aid in the
interpretation, construction or meaning of this Agreement.
15.6 If any provision of this Agreement or the application thereof to any person or in
any circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the
application of such provision to other persons or in other circumstances shall not be affected thereby and
shall be enforced to the greatest extent permitted by law.
15.7 Buyer agrees to keep all Properties covered by this Agreement in compliance
with the Underground Storage Tank Statutes and Regulations of Colorado during the term of this
Agreement. Buyer agrees to furnish to Conoco all records, including but not limited to, inventory records
and tank and line testing, required for applicable regulatory compliance and state reimbursement. Failure
to comply for the Property will terminate all of Conoco's obligations under this Agreement for that
Property.
15.8 If Buyer is in material breach of this Agreement and does not remedy the breach
within five (5) days after receiving written notice of the breach from Conoco, Conoco may terminate this
Agreement with no further liability hereunder.
15.9 If any clause or provision of this Agreement is declared illegal, invalid, or
unenforceable during the term of this Agreement, it is the intention of the parties that the validity and
enforceability of the remaining provisions of this Agreement shall not be affected and shall remain in full
force and effect.
IN WITNESS WHEREOF the parties have executed this Agreement as of the date first above
written.
CONOCO INC. CARTER PETROLEUM PRODUCTS, INC.
By: By:
Title: Title:
5
REALESTICOLORAWOICARTER PETROLEUM Remedialion&Indemnification
EXHIBIT"F"
MTBE RIDER
to the
REMEDIATION AND INDEMNIFICATION AGREEMENT
For the Sale of a Gasoline Station
Dated , ,20 , to which
CONOCO INC.
and
CARTER PETROLEUM PRODUCTS, INC.
are parties
Notwithstanding anything contained in the above captioned Agreement to the contrary,the parties
hereto understand and agree as follows:
1. This MTBE Rider is incorporated into the terms and conditions of the above captioned
Agreement. Except as otherwise provided herein, each and every term and provision of the above
captioned Agreement remains in full force and effect.
2. Except as otherwise provided herein,words and terms used in this MTBE Rider which are
defined in the above captioned Agreement are used herein as therein defined.
3. Pre-Closing Contamination specifically includes, among other things, Methyl-Tertiary-Butyl-
Ether(commonly known as "MTBE") which occurred and was found and identified prior to the Closing
Date in soil and/or groundwater samples collected from the Property.
4. Post-Closing Contamination specifically includes, among other things, MTBE spilled or released
after the Closing Date.
5. Conoco shall be obligated to perform MTBE related Environmental Work only if either of the
following occurs: 1)the Regulatory Authority requires MTBE related Environmental Work, or 2) Conoco
determines that MTBE related Environmental Work is necessary.
6. Paragraph 5.3 of the above captioned Agreement is hereby amended as follows:
Conoco's obligation, if any, to perform MTBE Environmental Work associated with the MTBE
Pre-Closing Contamination shall continue until the Regulatory Authority agrees to a risk based
closure or provides-a statement in writing indicating that no further action is required at this time
or, if MTBE is not regulated within five(5) years from the date of this Agreement by the
Regulatory Authority. If the Regulatory Authority agrees to a risk based closure,then Buyer will
comply with the requirements of the risk based closure including, without limitation,the filing
and recording of deed restrictions for the Property.
REALEST FORMS1Remethation 8 Indemnificafon Agt-MTBE Rider
(8/00)
7. Paragraph 5.4 of the above captioned Agreement is hereby amended as follows:
When any of the conditions set out in paragraph 5.3 above are met, Conoco shall have no further
Environmental Work obligations under this Agreement,unless Conoco elects, in its sole
discretion, to continue any Environmental Work under this Agreement.
8. Paragraph 11 of the above captioned Agreement is hereby amended as follows:
Termination. This Agreement shall terminate when any of the conditions stated in paragraph
5.3 are met by Conoco and Conoco sends Buyer a notice confirming same,unless Conoco elects,
in its sole discretion,to continue any Environmental Work under this Agreement.
THIS MTBE RIDER IS AGREED AND ACCEPTED this_day of , 2001.
CONOCO INC. CARTER PETROLEUM PRODUCTS, INC.
By: By:
Title: Title:
l
2
REALEST FORMSRemediaUon S Indemnification Agt—MTBE Rider(8/00)
EXHIBIT"G"
MTBE REMEDIATION AND INDEMNIFICATION AGREEMENT
For the Sale of a Gasoline Station
PROPERTY LOCATION
THIS MTBE REMEDIATION AND INDEMNIFICATION AGREEMENT ("Agreement")
is made as of the day of , 2001, by and between CONOCO INC., a Delaware
corporation ("Conoco") and CARTER PETROLUM PRODUCTS, INC., a Missouri corporation
("Buyer").
WITNESSETH:
WHFREAS, Conoco and Buyer have entered into a Sales Agreement dated
2001, under which Buyer agreed to purchase the property ("Property") described on the attached
Exhibit"A,"and
'WHEREAS, on , 20 ("Closing Date"), Conoco and Buyer closed on the
purchase of the Property,and
WHEREAS, Prior to the Closing Date, Methyl-Tertiary-Butyl-Ether (commonly known as
"MTBE") was measured in soil and/or groundwater samples collected from the Property at the
concentrations shown on Exhibit "B", attached hereto and by reference made a part hereof("MTBE Pre=
Closing Contamination"), and
WHFREAS, the Property, which was used as a retail petroleum marketing facility, is or may
become subject to environmental assessment, investigation, response and/or remediation (collectively
"MTBE Environmental Work") on account of the MTBE Pre-Closing Contamination, and
WHFREAS, Conoco may desire to perform MTBE Environmental Work associated with the
MTBE Pre-Closing Contamination.
IT IS HEREBY AGREED AS FOLLOWS:
1. Property Location. The Property(ies) covered by this Agreement is listed above.
2. Conoco's Indemnity.
2.1 Conoco expressly agrees to indemnify, defend and hold harmless Buyer, its
successors or assigns, including7.but not limited to, any lender of Buyer making a loan or loans with the
Property being the security for`such loan(s);
2.1.1 against and from all claims, loss, cost, damages, reasonable attorneys'
fees, liens or expense arising out of the MTBE Pre-Closing Contamination;
REALEST\COLORADO\CARTER\MIRE Remedlation S Indemnification
2.1.2 against and from any fine, penalty, sanction, damage, charges,
government orders and demands imposed for any violations of any law, ordinance, or regulation arising
out of, or attributable to said MTBE Pre-Closing Contamination at the Property;
2.1.3 against and from any and all claims, loss, cost, damage, liens, expense,
government orders and demands on or to the Property caused by Conoco, its agents, employees or
contractors in implementing, monitoring, performing or failing to perform any MTBE Environmental
Work to abate the MTBE Pre-Closing Contamination.
2.2 In no event will Conoco or its agents or contractors be responsible for any
exemplary, punitive, indirect, incidental or consequential damages including but not limited to business
interruption at the Property and diminution of the Property's value.
3. Buyer's Indemnity.
3.1 Buyer expressly agrees to indemnify, defend and hold harmless Conoco, its
successors and assigns:
3.1.1 against and from all claims, loss, cost, damages, reasonable attorneys'
fees, liens, expense, government orders and demands arising out of any wastes, hazardous or toxic
substances, petroleum, petroleum products, petroleum contaminants, or additives including, without
limitation, MTBE, spilled or released at the Property after the Closing Date ("Post-Closing
Contamination").
3.1.2 against and from any fine, penalty, sanction, damage, charges,
government orders and demands imposed for any violations of any law, ordinance, or regulation arising
out of or attributable to said Post-Closing Contamination at the Property;
3.1.3 against and from any and all claims, loss, cost, damage, liens, expense,
government orders and demands on or to the Property caused by Buyer its agents, employees or
contractors in implementing, monitoring, performing or failing to perform any action to abate the Post-
Closing Contamination.
3.2 If Buyer, its employees, contractors, suppliers, agents or invitees directly or
indirectly damage or destroy Conoco's equipment and fixtures used in the MTBE Environmental Work
(collectively"MTBE Environmental Work Assets"), Buyer shall pay the replacement and installation cost
of the MTBE Environmental Work Assets damaged or destroyed.
4. Property Access. Buyer hereby grants to Conoco an irrevocable license to enter onto the
Property to permit Conoco,its agents or contractors at no cost to Buyer, to conduct MTBE Environmental
Work including, without limitation, additional site assessment, including soil and groundwater samples,
to install, service, operate, adjust the MTBE Environmental Work Assets and to remediate the MTBE Pre-
Closing Contamination. The MTBE Environmental Work may include but not be limited to trenching
under and across the Property, excavation and over-excavation of impacted soils, installation of soil vents,
probes, wells and recovery,building and the installation and running of electrical and water recovery lines
to connect the wells and vents to the remediation system to be located on the Property as well as other
work required by the regulatory authority(ies) with competent jurisdiction over the MTBE Environmental
Work and/or the Property(the "Regulatory Authority"). Conoco or its contractor(s) shall inform Buyer at
least twenty-four (24) hours in advance of all actions to be taken on the Property; such notification may
be in the form of a periodic schedule of activities.
9
REALEST\COLORADo\CARTERRATBE Remediaton 8 Indemnification
5. Remedial Activities/Accommodation of Development.
5.1 Conoco shall be obligated to perform MTBE Environmental Work only if either
of the following occurs: 1) the Regulatory Authority requires MTBE Environmental Work, or 2) Conoco
determines that MTBE Environmental Work is necessary.
5.2 Conoco makes no representation or warranty regarding the length of time
required for Conoco to complete its requirements under this Agreement.
5.3 The MTBE Environmental Work shall be accomplished in such a way as to
reasonably accommodate Buyer's business operations, within reason and subject to requirements imposed
by the Regulatory Authority. The foregoing shall include location of the MTBE Environmental Work
activities, seeking any necessary approvals from the Regulatory Authority and performing the MTBE
Environmental Work.
5.4 Conoco's obligation, if any, to perform MTBE Environmental Work associated
with the MTBE Pre-Closing Contamination shall continue until the Regulatory Authority agrees to a
risked based closure or provides a statement in writing indicating that no further action is required at this
time or, if MTBE is not regulated within five (5) years from the date of this Agreement by the
Regulatory Authority. If the Regulatory Authority agrees to a risked based closure, then Buyer will
comply with the requirements of the risked based closure including, without limitation, the filing and
recording of deed restrictions for the Property.
5.5 When any of the conditions set out in paragraph 5.4 above are met, Conoco shall
have no further MTBE Environmental Work obligations under this Agreement.
6. Release/Limitation of Actions. Conoco's liability regarding the MTBE Pre-Closing
Contamination is limited to that specifically set out herein and all other liability and claims regarding the
existence of the MTBE Pre-Closing Contamination and the MTBE Environmental Work including,
without limitation, remediation, assessment, operations and equipment are released and waived by Buyer
as part of the consideration of the sale and of this Agreement. Buyer acknowledges that the site is or may
be contaminated with MTBE Pre-Closing Contamination and consents to the existence of MTBE Pre-
Closing Contamination, if any, at the Property.
7. Assignment of Governmental Reimbursement for Remediation Costs. Buyer hereby
assigns all of its rights to receive any reimbursement from all applicable governmental remediation
reimbursement funds to Conoco Inc. for work performed by Conoco, and at Conoco' request, will
execute an assignment document evidencing said assignment.
8. Post-Closing Contamination. In the event Post-Closing Contamination occurs at the
Property,the following shall apply:
8.1 Buyer shall be responsible for all Post-Closing Contamination.
8.1 Buyer shall notify Conoco in writing within five (5) working days of the
occurrence or finding of.the Post-Closing Contamination.
8.3 Buyer will furnish copies of any correspondence to or from a regulatory agency
or third party as to site assessment(s) and corrective action(s) within fifteen (15) days of submittal to the
regulatory agency or third party.
3
REALEST\COLORADO\CARTER\MTBE Remediation&Indemnification
8.4 Buyer will conduct a tank and/or line test within fifteen (15) days of the
indication of a release and furnish the results of such testing to Conoco within fifteen (15) days of receipt
of the report,unless Buyer can reasonably demonstrate that the tank(s) and/or line(s) are not the source of
the release.
8.5 In the event of a suspected release, and at the request of Conoco, Buyer will
furnish Conoco with copies of tank inventory records, tank and/or line testing and any other available
inventory monitoring information for the past year. An example would be an unexpected occurrence or
increase in free product in a monitor well.
8.6 If the occurrence is such that Buyer is unable to completely isolate and remove
the Post-Closing Contamination or the MTBE Pre-Closing Contamination becomes commingled with the
Post-Closing Contamination, then Conoco and Buyer shall conduct good faith negotiations to develop a
cost sharing arrangement concerning joint remediation efforts. If Buyer and Conoco have not agreed
upon a cost sharing agreement within ninety(90) days after the date of the occurrence of the Post-Closing
Contamination, either party hereto may invoke the terms and conditions of paragraph 13 below.
9. Restoration. Conoco shall, at no cost to Buyer, restore that part of the Property
disturbed by the MTBE Environmental Work to the condition substantially similar to the condition that it
was in at the date of this Agreement, including, but not limited to, filling in any trench to the grade level
in existence prior to commencement of the MTBE Environmental Work, as well as removing and closing
any wells or other MTBE Environmental Work Assets to the satisfaction of the Regulatory Authority.
10. Reports. Conoco shall provide Buyer with copies of any notices, correspondence,
manifests,reports,permits or other documents related to the contamination of the Property and the MTBE
Environmental Work to be performed when so requested.
11. Termination. This Agreement shall terminate when any of the conditions stated in
paragraph 5.4 are met by Conoco and Conoco sends Buyer a notice confirming same.
12. Property Transfer. Buyer agrees not to lease or sell the Property unless the lessee or
new buyer enters into the same form of this Agreement with Conoco.
13. Alternate Dispute Resolution. In the event Buyer and Conoco have a dispute under this
Agreement, they both undertake to explore resolution of the dispute through negotiation, mediation (in
accordance with the Center for Public Resources (CPR) Model Procedure for Mediation of Business
Disputes), or similar alternative dispute resolution techniques before pursuing full-scale litigation. If
either party believes that the dispute is not suitable for such alternative dispute resolution techniques, or if
such techniques do not produce results satisfactory to the parties, either party may proceed with litigation.
14. Notices. Notices shall be sent by overnight express mail, certified mail, or personal
delivery. The date of service will be the date on which notice is received by the noticed party. Notices
shall be sent to the following addresses:
Buyer: Carter Petroleum Products, Inc.
100 NW Parkway
Riverside,Missouri 64150
4
REALEST-\OOLORADO\CARTER\MTBE Remediation B Indemnification
Conoco: William E. Rodgers
Conoco Inc.
Ponca 3044
P.O. Box 2197
Houston, Texas 77252-2197
15. Standard Provisions:
15.1 This Agreement is made in the State of Colorado and its validity, construction
and all rights under it shall be governed by Colorado law.
15.2 This Agreement supersedes any prior agreements and contains the entire
agreement of the parties on the matters covered. No other agreement, statement or promise made by any
party or agent of any party that is not in writing and signed by all the parties to this Agreement shall be
binding. Any amendments to this Agreement shall be in writing and signed by all parties hereto.
15.3 The provisions of this Agreement were negotiated by all the parties hereto, and
this Agreement shall be deemed to have been drafted by all the parties hereto.
15.4 This Agreement may be executed in counterparts, each of which shall be deemed
to be an original,but such counterparts when taken together shall constitute but one agreement.
15.5 The paragraph headings throughout this Agreement are for convenience and
reference only. The words contained herein shall not be held to expand, modify, amplify or aid in the
interpretation,construction or meaning of this Agreement.
15.6 If any provision of this Agreement or the application thereof to any person or in
any circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the
application of such provision to other persons or in other circumstances shall not be affected thereby and
shall be enforced to the greatest extent permitted by law.
15.7 Buyer agrees to keep all Properties covered by this Agreement in compliance
with the Underground Storage Tank Statutes and Regulations of Colorado during the term of this
Agreement. Buyer agrees to furnish to Conoco all records, including but not limited to, inventory records
and tank and line testing, required for applicable regulatory compliance and state reimbursement. Failure
to comply for the Property will terminate all of Conoco's obligations under this Agreement for that
Property.
15.8 If Buyer is in material breach of this Agreement and does not remedy the breach
within five (5) days after receiving written notice of the breach from Conoco, Conoco may terminate this
Agreement with no further liability hereunder.
15.9 If any clause or provision of this Agreement is declared illegal, invalid, or
unenforceable during the term,of this Agreement, it is the intention of the parties that the validity and
enforceability of the remajping provisions of this Agreement shall not be affected and shall remain in full
force and effect.
5
REALEST\COL0RAD0\CARTERNTSE Remodiation B Indemn canon
IN WITNESS WHEREOF the parties have executed this Agreement as of the date first above
written.
CONOCO INC. CARTER PETROLEUM PRODUCTS, INC.
By: By:
Title: Title:
6
REALEST\COLORADO\CARTERMTBE Remetliatlon&Indemnification
EXHIBIT "B"
MTBE CONCENTRATIONS
7
REALEST\COLORADO\CARTER\MTBE Remedietian&Indemnification
SCHEDULE I
ASSIGNMENT NOTIFICATION
(RELINQUISHED PROPERTY)
("Buyer") is hereby notified that CONOCO INC. ("Seller") has assigned all of its right, title
and interest (but not its obligations) in and to the Agreement dated , to CHASE
BANK OF TEXAS, N. A., acting as a qualified intermediary as defined in Treasury Regulation
Section 1.1031(k)-1(g)(4), in an Assignment of Rights dated , in order to effect an
exchange of properties as provided for in Section 8 of the Sales Agreement. Seller hereby instructs Buyer
to pay all amounts due under the Agreement to Intermediary. Buyer hereby acknowledges receipt of this
notification.
BUYER:
By:
Title:
Date:
SELLER: CONOCO INC.
By:
Name: K. G. WILLIAMS
Title: REAL ESTATE COORDINATOR
Date:
CHASE BANK OF TEXAS, N.A.
By:
Title:
• Date:
/,
CHASE BANK OF TEXAS, N. A.
/
By:
Name:
Title:
Date:
20
REALEST\COLORADO\CARTER PETROLEUM SALES AGT
11 sites
March 20.2001
PARTIAL ASSIGNMENT AND ASSUMPTION OF SALES AGREEMENT
This Agreement, entered into as of this otakiday of inertiNGL , 2001
("Effective Date"), between CARTER PETROLEUM PRODUCTS, INC., a Missouri corporation, with
an office at 100 NW Parkway, Riverside, Missouri 64150-9560 ("Assignor" or "CPP"), and
PARADISUS INVESTMENTS, LLC, a Colorado limited liability company with an office at 2329 S.W.
15'" St., Edmond, Oklahoma 73013 ("Assignee"or"Dealer").
In consideration of the mutual promises and under-takings herein contained, the parties
hereto agree as follows:
1. Assignor hereby assigns and transfers to Assignee all of Assignor's right, title
and interest in and to that certain Sales Agreement dated March 21, 2001 ("Effective Date"), entered into
between CONOCO INC. and KAYO OIL COMPANY, as seller, and CPP, as buyer, limited to the
following property("Property"):
Store No. Address
6394 3851 Hwy 119, Longmont, CO
6358 5009 N. Garfield, Loveland, CO
6357 1260 14th St. S.W., Loveland, CO
6439 3790 Wadsworth Blvd., Wheatridge, CO
6437 9201 Huron, Thornton, CO
6396 680 E. 84th Ave., Thornton, CO
6350 7199 Federal Blvd., Westminster, CO
6312 15351 E. Iliff Ave., Aurora, CO
6319 19001 E. Quincy Ave., Aurora, CO
6391 2880 S. Circle Dr., Colorado Springs, CO
6395 6740 N. Academy, Colorado Springs, CO
A copy of the Sales Agreement is attached hereto as Exhibit"A."
2. Assignee hereby assumes the performance of all of the terms, covenants,
agreements, conditions, and obligations of the Assignor, as buyer, under the Sales Agreement, all with
full force and effect as if the Assignee had signed the Sales Agreement originally as buyer therein.
3. The parties hereto agree that Part I, Sections 8.10 of the Sales Agreement does
not apply to Dealer.
4. The total sales price for the Property is Nine Million Three Hundred Thousand
Dollars ($9,300,000). The valued to be allocated to land, building and equipment have been negotiated by
the parties and are set out on Schedule I which is attached hereto and made a part hereof.
5. Within five (5)days from the Effective Date, Dealer will deposit Ninety Three
Thousand Dollars ($93,000) ("Deposit") with CPP. Within thirty (30) days from the Effective Date,
Dealer must provide a comfort letter satisfactory to CPP from a reputable financial institution which
states that adequate financing is available to allow Dealer to purchase the Property. If Dealer is unable to
provide a comfort letter from a reputable financial institution within thirty (30)days from Effective Date.
Earnest Money will be refunded and the Agreement terminated. However, if after receipt of a comfort
letter, this transaction does not close because of Dealer's failure to obtain financing, earnest money will
be retained by CPP. On the Closing Date, CPP will apply the Deposit on behalf of the Dealer to the Sales
Price.
6. The Property must remain branded Conoco for a period of ten(10)years after the
Closing Date whether the owner thereof is Dealer or any other person.
7. All gasoline and diesel sold from Property must be supplied by CPP for a period
of ten (10)years after Closing Date, whether the owner thereof is Dealer or any other person.
8. Dealer(or its assignees, if any) must fulfill and satisfy all credit requirements of
CPP during the ten (10)year term of this Agreement.
9. Should Dealer sell Property, CPP shall have the right to purchase the Property at
the original purchase price as set forth in Schedule I for a period of 36 months from Effective
Date.
10. On the Closing Date, the Dealer will execute and record an option in the form as
set out on Schedule II which is attached hereto and made a part hereof.
11. On the Closing Date, the Dealer will execute and record a right of first refusal in
the form as set out on Schedule III which is attached hereto and made a part hereof.
12. Any defined term not defined in this Agreement has the same meaning as in the
Sales Agreement.
13. All of the covenants, terms, and conditions set forth herein shall be binding upon
the parties hereto and their respective successors, assigns, and legal representatives and shall inure to the
benefit of the parties hereto, and their respective successors, assigns, and legal representatives.
IN WITNESS WHEREOF, the parties hereto have set their hands the date first above
written.
ASSIGNEE: ASSIGNOR:
PARADISSUS INVESTMENTS, LLF CARTER PET LEU PRO CT INC.
By: G\ "� " �� ' By: �
Title: /✓f fLwt �iP� Title: Zi )c) f
SCHEDULE I
Allocation
PROPERTY LOCATION LAND BUILDING EQUIPMENT TOTAL
Store No. 06394
3851 Hwy. 119 800,000 500,000 700,000 2,000,000
Longmont, CO
Store No. 06358
5009 N. Garfield 350,000 300,000 350,000 1,000,000
Loveland, CO
Store No. 06357
1260 14th Street S.W. 300,000 225,000 300,000 825,000
Loveland, CO
Store No. 06439
3790 Wadsworth Blvd. 250,000 250,000 250,000 750,000
Wheatridge, CO
Store No. 06437
9201 Huron 150,000 200,000 225,000 575,000
Thornton, CO
Store No. 06396
680 E. 84th Avenue 150,000 225,000 275,000 650,000
Thornton, CO
Store No. 06350
7199 Federal Boulevard 250,000 250,000 300,000 800,000
Westminster, CO
Store No. 06312
15351 E. Iliff Avenue 150,000 150,000 150,000 450,000
Aurora, CO
Store No. 06319
19001 W. Quincy Avenue 250,000 250,000 300,000 800,000
Aurora, CO
Store No. 06391
2880 S. Circle Drive 250,000 200,000 275,000 725,000
Colorado Springs, CO
Store No. 06395
6740 N. Academy 250,000 225,000 250,000 725,000
Colorado Springs, CO
TOTAL 3,150,000 2,775,000 3,375,000 9,300,000
SCHEDULE II
Property Address:
OPTION TO PURCHASE
This Option to Purchase is made and entered into as of , 2001, by CARTER PETROLEUM
PRODUCTS, INC., a Missouri corporation ("Owner").
Owner is the owner of a tract of land in County, Colorado, as described in Exhibit A,
attached hereto and made a part hereof, together with all improvements, fixtures, and equipment located
thereon (the"Property").
Owner desires to grant to CONOCO INC., a Delaware corporation("Conoco"), an Option to Purchase the
Property under the terms and conditions hereinafter set forth.
Accordingly, for and in consideration of Ten Dollars and other good and valuable consideration, Owner
hereby grants to Conoco the Option to Purchase the Property for the period specified in paragraph 4
hereof under the following terms and conditions:
1. If Owner or Owner's successor in interest at any time during the term hereof debrands the
Property Conoco, Owner shall give Conoco immediate notice("Notice") of such debranding. Upon
receipt of the Notice, Conoco shall have sixty (60) days ("Review Period") in which to exercise its Option
to Purchase.
2 In the event Conoco elects to exercise its Option to Purchase the Property, Conoco shall
so notify Owner in writing within the Review Period, and Conoco and Owner shall thereafter diligently
proceed to complete and close the-purchase. During the Review Period, Conoco shall have the right to
inspect the Property, take soil samples and perform any other environmental testing it deems necessary,
and to review all Owner's files, information and data regarding the presence, if any, of pollutants or
contaminants in the air, surface water, groundwater, and soil of the Property. The price for the Property
shall be seventy percent(70%) of a current MAI appraisal during years one (1)through two (2), seventy-
five percent(75%) during years three (3) through five (5), and eighty percent(80%) during years six(6)
through ten (10). If there is a lien on the Property the proceeds of the Price will first be applied to the pay
off of any liens. The owner will receive the amount remaining after the payout of all liens.
3. In the event of a market withdrawal (as defined or explained in the Conoco Petroleum
Marketer Agreement existing between Conoco and Owner as the same may be supplemented by an
addendum thereto concerning the subject properties) from the marketing area that is applicable to the
subject property, Owner shall thereupon be permitted to discontinue the Conoco brand and shall cancel
Owner's option as herein set forth. ,
4. This Option to.Purchase expires , , or sixty(60) days after Conoco
has received the Notice and has not exercised its Option to Purchase, whichever occurs first.
REALESTOOLORADO\CARTER\OPTION TO PURCHASE
SCHEDULE III
Property address:
RIGHT OF FIRST REFUSAL
This Right of First Refusal is made and entered into as of , 2001, by and
CARTER PETROLEUM PRODUCTS, NC., a Missouri corporation ("Owner").
Owner is the owner of a tract of land in County, Colorado, as described in Exhibit A
attached hereto and made a part hereof, together with all improvements, fixtures, and equipment located
thereon (the"Property").
Owner desires to grant to CONOCO INC., a Delaware corporation ("Conoco"),the right of first refusal to
purchase the Property under the terms and conditions hereinafter set forth.
Accordingly, for and in consideration of Ten Dollars and other good and valuable consideration, Owner
hereby grants to Conoco the right of first refusal to purchase the Property for the period specified in
paragraph 4 hereof under the following terms and conditions:
1. If Owner at any time during the term hereof receives a bona fide offer to purchase the
Property and Owner desires to sell the Property under the terms of said offer, Owner shall give Conoco
immediate notice in writing of such bona fide offer, setting forth the name and address of the proposed
purchaser who has made the offer, with a full disclosure of all terms and provisions thereof. Conoco shall
have the right of first refusal to purchase the Property on the same terms of any such proposal.
2. In the event Conoco elects to exercise its right to purchase the Property, Conoco shall so
notify Owner in writing within sixty (60) days (the "Review Period")of receipt of Owner's notice, and
Conoco and Owner shall thereafter diligently proceed to complete and close the purchase on the terms.
During the Review Period. Conoco.shall have the right to inspect the Property, take soil samples and
perform any other environmental testing it deems necessary, and to review all Owner's files, information
and data regarding the presence, if any, of pollutants or contaminants in the air, surface water,
groundwater, and soil of the Property.
3. In the event Conoco elects not to exercise its right to purchase the Property(whether by
notice to Owner or failure to provide any response within the Review Period), then Conoco's rights
hereunder shall terminate and lapse, provided that Owner subsequently closes a sale of the ProRerty
within 90 days after the end of the Review Period to any purchaser not a party hereto at a price not less
than and on terms no more favorable to the purchaser than those stated in the aforementioned notice to
Conoco. In the event the Property is not so sold within such 90 day period, then the terms hereof shall
continue to apply as though no bona fide offer to purchase the Property had been received by Owner.
4. This Right of First Refusal will expire on
5. The addresses gfthe parties for notice purposes are:
Conoco Inc. Carter Petroleum Products, Inc.
Attn: Manager, Branded Marketing, Rockies Attn:
13059 E. Peakview Ave., Suite 110 100 NW Parkway
Centennial, Colorado 80111 Riverside, Missouri 64150
REALEST\cOLORAOO\CARTER\RIGRT OF FIRST REFUSAL
5. The addresses of the parties for notice purposes are:
Conoco Inc. Carter Petroleum Products, Inc.
Attn: Manager, Branded Marketing, Rockies Attn:
13059 E. Peakview Ave., Suite 110 100 NW Parkway
Centennial, Colorado 80111 Riverside, Missouri 64150
Any and all notices shall be either delivered in person to the addressee or sent to the addressee by
certified mail.
6. This Option to Purchase shall inure to the benefit of and be binding upon the parties hereto,
their heirs, successors, and assigns.
CARTER PETROLUM PRODUCTS, INC.
By:
Title:
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this day of
, 2001, by , the of
CARTER PETROLEUM PRODUCTS, INC., a Missouri corporation, on behalf of said corporation.
Witness my hand and official seal.
NOTARY PUBLIC IN AND FOR
COUNTY
MY COMMISSION EXPIRES:
After recording return to: Prepared in the law office of:
f�.
Randy Amen F. Edward Adams III
Conoco Inc. Conoco Inc.--Legal Department
13059 E. Peakview Ave., Suite 110 P. O. Box 4783, ML 2068
Centennial, Colorado 80111 Houston, Texas 77210
REALESTCOLORAOCACARTER\OPTION TO PURCHASE SC"
1
Any and all notices shall be either delivered in person to the addressee or sent to the addressee by
certified mail.
6. The rights of the parties hereto shall be subordinate to the aforementioned lien on the
Property.
7. This Right of First Refusal shall inure to the benefit of and be binding upon the parties
hereto, their heirs, successors, and assigns.
8. If this Property is part of a group of properties under one contract, then a fair and
reasonable allocation must be made among all the properties under the contract.
9. In the event of a market withdrawal (as defined or explained in the Conoco Petroleum
Marketer Agreement existing between Conoco and Owner as the same may be supplemented by an
addendum thereto concerning the subject properties) from the marketing area that is applicable to the
subject property, Owner shall thereupon be permitted to discontinue the Conoco brand and shall cancel
Owner's Right of First Refusal as herein set forth.
CARTER PETROLEUM PRODUCTS, INC.
Bv:
Title:
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this day of
, 2001, by , the of
CARTER PETROLEUM PRODUCTS, INC., a Missouri corporation, on behalf of said corporation.
Witness my hand and official seal.
NOTARY PUBLIC IN AND FOR
COUNTY
MY COMMISSION EXPIRES:
After recording return to: �' Prepared in the law office of:
Randy Amen F. Edward Adams III
Conoco Inc. Conoco Inc.--Legal Department
13059 E. Peakview Ave., Suite 110 P. O. Box 4783, ML 2068
Centennial, Colorado 80111 Houston, Texas 77210
REALESTICOLORAOC cARTERcRIGHT OF FIRST REFUSAL
PROM ROTHGERBER, JOHNSON, & LYONS (THU) 3. 29' 01 15:U6/ST. 15:02JN0. 4863771629 P 2
nowarm,vAvtosort
OF STATi
co ,on5£tazt
ocr ARTICLES OF ORGANIZATION C
OF
6168
ALPINE STATION, LLC SECRETARY OF STATE
03-29-2001 jl:50;39
The undersigned natural person of the age of eighteen(18)years or more,acting as organizer
of Alpine Station, LLC, organized and created under the provisions
of the Co of said Limited
d
Liability Company Act, hereby adopts the following Articles of Org
Liability Company:
— FIRST: The name of the Limited Liability Company shall be ALPLNE STATION,
LLC(the "Company")-
SECOND: The period of its duration shall e be perpetual from the date of filing these
Articles of Organization with the Colorado Secretary of
THIRD: The address of the principal place of business of the Ccampany is 2329 S.W.
15th Street, Edmond, Oklahoma 73013.
FOURTH: The address of the initial registered agent of the Company within the state of
Colorado is 1200 Seventeenth Street, Suite 3000, Denver, Colorado 80202.:The name of the
Company's initial registered agent at such address is Mark.Meyer.
FIFTH: Management of the Company shall be vested in its managers rather than its
members. The name and business address of the initial manager is:
Kenneth L. Knight
2329 S.W. 15th Street
Edmund, Oklahoma 73013
SIXTH: Upon the death,retirement, resignation,expulsion,bankruptcy or dissolution
of a member or the occurrence of any other event ch terminates unhe animously continued o to continue the
membership of
a member in the Company, the remaining members may
business of the Company within ninety (90) days after the termination.
SEVENTH: The name and address of the organizer is:
Mark Meyer
1200 17th Street, Suite 3000
Denver, CO 80202
IN WITNESS WHEEE.EOF, I have signed these Articles of Organization this 29th day of
March, 2001, and I acknowledge the same to he my true act and deed.
Signed:
Mark Meyer, Organizer
FROM ROTHGERBER, JOHNSON, & LYONS (THU) 3. 29' 01 15:07/ST. 15 :02/NO. 4963771629 P 3
OVe °4
II SW 1
STATE` �$ � __ RADO '``
DEPARTMENT OF i
STATE
CERTIFICATE
I, DONETTA DAVIDSON, SECRETARY OF STATE CF THE STATE OF
I \
COLORADO HEREBY CERTIFY THAT
ACCORDING TO THE RECORDS OF THIS OFFICE
ALPINE STATION, LLC
(COLORADO LIMITED LIABILITY COMPANY)
FILE # 20011065268 WAS FILED IN THIS OFFICE ON March 29, 2001
AND HAS COMPLIED WITH THE APPLICABLE PROVISIONS OF IN THE
LAWS OF THE STATE. OF COLORADO Ann ON THIS DATE�IS CT I GOOD
STANDING AND AUTHORIZED AND COMPETENT TO TRANS.
OR TO CONDUCT ITS AFFAIRS WITHIN THIS STATE.
iI i j
Dated: March 29, 2001 !
I
i \ i ,
i
SECRETARY OF STATE,
OPERATING AGREEMENT
OF
ALPINE STATION, L.L.C.
THE INTERESTS IN THIS COMPANY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR UNDER THE
SECURITIES LAWS OF ANY STATE AND MAY NOT
BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THAT
ACT AND THE APPLICABLE STATE SECURITIES
LAWS, OR THE COMPANY SHALL HAVE RECEIVED
AN OPINION OF COUNSEL (WHICH COUNSEL AND
OPINION SHALL BE SATISFACTORY TO THE
COMPANY'S COUNSEL) THAT REGISTRATION OF
SUCH SECURITIES UNDER THAT ACT AND UNDER
THE PROVISIONS OF APPLICABLE STATE
SECURITIES LAWS IS NOT REQUIRED.
THE INTERESTS IN THIS COMPANY ARE SUBJECT
TO THE RESTRICTIONS AND PROVISIONS OF THIS
OPERATING AGREEMENT AND MAY ONLY BE
DISPOSED OF OR ENCUMBERED IN COMPLIANCE
HEREWITH.
OPERATING AGREEMENT
of
ALPINE STATION, L.L.C.
As of the effective time of the Articles of Organization of Alpine Station, L.L.C.,
a Colorado limited liability company, the Members enter into this Agreement for the
purpose of setting forth the agreements between themselves and the Company and with
one another. The terms of the Agreement are as follows.
ARTICLE I
Organizational Matters
Section 1.01. Formation. The Company is formed as a limited liability company
pursuant to the provisions of the Act. The rights and obligations of the Members, and the
affairs of the Company, shall be governed first by the mandatory provisions of the Act,
second by the Company's Articles of Organization, third by this Agreement, and fourth
by the optional provisions of the Act. In the event of any conflict among the foregoing,
the conflict shall be resolved in the order of priority set forth in the preceding sentence.
Section 1.02. Name. The name of the Company is "Alpine Station, L.L.C."
Section 1.03. Principal Office. The principal office of the Company is at
The name of its resident agent is
. The Company may also maintain offices at such other
place or places as the Members deem advisable.
Section 1.04. Term. The Company began upon the filing of the Company's
Articles of Organization with the Colorado Secretary of State, and shall have perpetual
existence unless terminated as provided in this Agreement.
ARTICLE II
Definitions
Section 2.01. Definitions. For purposes of this Agreement, the following terms
shall have the meanings asetibed to them.
"Act" means the Colorado Limited Liability Company Act, as it may be amended
from time to time, and any successor to such act.
"Affiliate" means any Person that directly or indirectly controls, is controlled by,
or is under common control with, such Person. As used in this definition of "Affiliate",
the term "control" means either (i) the possession, directly or indirectly, of the power to
2
direct or cause the direction of the management and policies of a Person, whether through
ownership of voting securities, by contract or otherwise or (ii) a direct or indirect equity
interest of ten percent (10%) or more in the entity.
"Agreement" means this Operating Agreement, as it may be amended or
supplemented from time to time.
"Articles of Organization" means the articles of organization, as amended from
time to time, filed by the Company under the Act.
"Assignee" means a Person to whom one or more Units have been transferred, by
transfer or assignment or otherwise, in a manner permitted under this Agreement, and
who has agreed to be bound by the terms of this Agreement, but who has not become a
Substitute Member.
"Capital Account" means each capital account maintained for a Member
pursuant to Section 4.03.
"Capital Contributions" means the sum of the values of cash, property, services
rendered, or a promissory note or other binding obligation to contribute cash or property
or to perform services contributed to the Company by all Members, or any one Member,
as the case may be (or the predecessor holders of any Units of any such Members).
"Capital Gain" means the Company's allocable share of gain from the
disposition by the Company of a capital asset as defined in the Code (including any
portion of such gain treated as ordinary income).
"Cash Available for Distribution" means, with respect to any period, all cash
receipts and funds received by the Company (except for Capital Contributions) minus (i)
all cash expenditures and (ii) the cash reserved for working capital or purposes other than
distributions.
"Code" means the Internal Revenue Code of 1986, as amended, as in effect from
time to time.
"Commencement Date" has the meaning specified in Section 10.02.A.
"Company" means the limited liability company identified in Section 1.02.
"Company Option!"has the meaning specified in Section 10.02.A.2.
"Company Property" means all property owned, leased or acquired by the
Company from time to time.
"Disqualified Member" has the meaning specified in Section 12.01.
"Event of Dissolution" has the meaning specified in Section 12.02.
3
"Indemnitee" has the meaning specified in Section 7.04.A.
"Income" and "Loss" mean an amount equal to the Company's taxable income
or loss (excluding Capital Gain or loss) for each taxable year, determined in accordance
with Section 703(a) of the Code (for this purpose, all items of income, gain, loss, or
deduction required to be stated separately pursuant to Section 703(a)(1) of the Code shall
be included in taxable income or loss), with the following adjustments:
A. Any income of the Company that is exempt from federal income tax
and not otherwise taken into account in computing Income or Loss shall be added to such
Income or Loss.
B. Any expenditures of the Company described in Section 705(a)(2)(B) of
the Code or treated as Section 705(a)(2)(B) of the Code expenditures pursuant to
Treasury Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account
in computing Income or Loss, shall be subtracted from such Income or Loss.
C. Upon the distribution of property by the Company to a Member, gain
or loss attributable to the difference between the fair market value of the property and its
basis shall be treated as recognized.
"Majority Vote of the Members" means the affirmative vote of the holders of a
majority of the Outstanding Units held by the Members, which vote may be recorded in
the minutes of a meeting of the Members or in a written consent in lieu of a meeting.
"Manager" means Kenneth L. Knight or any successor elected Manager of the
Company.
"Mandatory Provisions of the Act" means those provisions of the Act which
may not be waived by the Members acting unanimously or otherwise.
"Member" means those individuals executing this Agreement as Members of the
Company on the signature pages hereto.
"Option Units" has the meaning specified in Section 10.02.A.
"Outstanding" means the number of Units issued by the Company as shown on
the Company's books and records. less any Units held by the Company.
"Overallotment Units" has the meaning specified in Section 10.02.A.1.
"Paradisus Investments, L.L.C." means the Colorado Limited Liability
Company formed by Articles of Organization filed with the Colorado Secretary of State
on March 26, 2001.
4
"Person" means a natural person, partnership, domestic or foreign limited
partnership, domestic or foreign limited liability company, trust, estate, association or
corporation.
"Primary Option" has the meaning specified in Section 10.02.A.1.
"Record Holder" means the Person in whose name such Unit is registered on the
books and records of the Company as of the close of business on a particular Business
Day.
"Substitute Member" means a transferee of a Unit who is admitted as a Member
to the Company pursuant to Section 11.01 in place of and with all the rights of a Member.
"Tax Item" means each item of income, gain, loss, deduction, or credit of the
Company for federal tax purposes, as separately stated and calculated pursuant to the
Code.
"Tax Matters Partner" means the individual designated pursuant to Section
9.02.
"Unit" means a Unit representing an interest in the Company.
ARTICLE III
Purpose
Section 3.01. Purpose of the Company. The Company is formed for the purpose
of transacting any and all lawful business for which limited liability companies may be
organized under the Act.
ARTICLE IV
Capital Contributions
Section 4.01. Units. There shall be an aggregate of Units authorized by the
Company equal to one unit for each one dollar of capital contributed to the Company.
Each Member shall hold that number of Units of capital contributed to the Company.
Section 4.02. Capital Contributions. Each Member shall contribute cash,
property or services to the Company.
Section 4.03. Capital Accounts.
A. The Company shall maintain for each Member a separate Capital
Account. The term "Capital Account" shall mean as to any Member and as to any Units
5
held by that Member the amount of the initial Capital Contribution attributable to the
Units held by that Member, which amount shall be (i) increased by subsequent Capital
Contributions by such Member, and Capital Gain and Income allocated to such Member
pursuant to Section 5.02, and (ii) decreased by distributions to such Member pursuant to
Section 5.01 and Losses allocated to such Member pursuant to Section 5.02.
B. Property or services contributed by a Member shall be credited to such
Member's Capital Account at the fair market value of such property or services.
C. The foregoing definition of Capital Account and certain other
provisions of this Agreement are intended to comply with Treasury Regulations Section
1.704-1(b), and shall be interpreted and applied in a manner consistent with that
regulation. Such regulation contains additional rules governing maintenance of capital
accounts which are incorporated by this reference into this Agreement.
D. An Assignee of a Unit will succeed to the Capital Account relating to
the Unit transferred.
E. At such times as may be permitted or required by Treasury Regulations
issued pursuant to Section 704 of the Code, the Capital Accounts shall be revalued and
adjusted to reflect the then fair market value of Company Property and the Capital
Accounts shall be maintained to comply with Treasury Regulations Section 1.704-
1(b)(2)(iv)(f). All allocations of gain resulting from such revaluation shall be made
consistent with that regulation; and to the extent not inconsistent therewith, the Income
allocation provisions of Section 5.02 hereof.
Section 4.04. Drawing Accounts. A drawing account shall be maintained for
each Member, which account shall be (i) credited with such Member's percentage interest
in income of the Company as provided in Section 5.02 hereof and (ii) charged with such
Member's percentage interest of losses of the Company, as provided in Section 5.02
hereof and (Hi) charged with such Member's withdrawals and any distributions to such
Members, as provided in Section 5.02 hereof. A credit balance in a Member's drawing
account shall constitute a liability of the Company to such Member. A debit balance in a
Member's drawing account shall constitute a liability of the Member to the Company.
Section 4.05. Interest. No interest shall be paid by the Company on Capital
Contributions, on balances in a Member's Capital Account, or on any other funds
distributed or distributable under this Agreement.
Section 4.06. Na- Withdrawal. Except as otherwise required under any
Mandatory Provisions the Act, no Member shall have (i) any right to resign voluntarily
or otherwise to withdraw from the Company, or (H) any right to the withdrawal or
reduction of any part of his or her Capital Contribution, without the consent of all
remaining Members of the Company.
6
Section 4.07. Loans. Loans by a Member to the Company shall not be
considered Capital Contributions.
Section 4.08. Additional Capital Contributions. Members may, but shall have
no obligation to make additional Capital Contributions except as provided herein. Each
Member shall have the right to make their proportionate share of any additional Capital
Contribution in order to maintain their percentage ownership in the Company. The
amount of any additional Capital Contribution shall be added to the Capital Account of
the contributing Member. The Members as a group shall be required to make one or more
additional Capital Contributions to the Company from time to time (but no more often
than once per calendar year) upon the determination by a majority of the Members in
good faith that such additional capital contributions are necessary for the Company due to
an emergency or uninsured event. Upon any such determination, the Member(s) making
the determination shall, by written notice, call for any such additional contributions to be
made by the Members to the capital of the Company. Within 20 days following the
issuance of such a capital call, each Member shall contribute, in cash, to the capital of the
Company an amount (the "Additional Contribution") equal to such Member's Percentage
Interest multiplied by the aggregate additional Capital Contribution to be made by all
Members.
Section 4.09. Defaulting Members. If any Member fails or refuses for any
reason to make in a timely manner any part or all of a required Additional Contribution
pursuant to Section 4.08 above (the "Unpaid Additional Contribution"), such Member
shall be in default hereunder and shall be deemed to be a "Defaulting Member" and the
following shall apply:
a. The Unpaid-Additional Contribution shall constitute an obligation of such
Defaulting Member to the Company and shall bear interest from the date of such
Defaulting Member's default at a floating annual rate of interest equal to the lesser of(A)
four percent (4%) (400 basis points) over the Prime Rate in effect from time to time, or
(B) the maximum rate permitted by law. Interest shall be compounded monthly and be
payable on demand. The Company may, upon the decision of a Majority in Interest
(determined by excluding the Defaulting Member), institute suit in any court of
competent jurisdiction to enforce such obligation of the Defaulting Member. In addition,
the Company shall be entitled to recover in such suit all costs and expenses, including,
but not limited to, court costs and reasonable attorneys' fees, thereby incurred by the
Company and any damages (except incidental or consequential damages) sustained by the
Company as a result of the default by the Defaulting Member.
b. By executing this Agreement, each Member shall be deemed to have
granted to the Company a first priority lien and security interest upon such Member's
Interest as security for the payment of all Additional Contributions and other obligations
of such Member to the Company. This Agreement shall be deemed to be a security
agreement with respect to such security interest and collateral and each Member shall
promptly execute and deliver to the Company any financing statements or other
7
instruments that the Company, or any other Member, may request for purposes of
perfecting or continuing such security interest. Upon the failure of a Member to execute
and deliver such financing statements or other instruments, the other Members, and each
of them, as attorney-in-fact for such Member may execute and deliver such financing
statements or other instruments for, in the name and on behalf of such Member. With
respect to a Defaulting Member, the Company, acting upon the decisions of a Majority in
Interest (determined by excluding the Defaulting Member), shall have all of the rights and
remedies of a secured party under the Uniform Commercial Code, including, without
limitation, and in addition to the rights under such law, the right to sell, effective as of the
first day of the fiscal quarter in which the default occurs or such subsequent date as the
Company may determine, by public or private sale upon 10 days advance notice to the
Defaulting Member, the Defaulting Member's Interest or any part thereof and to cause
the acquirer to become a Substitute Member in lieu of the Defaulting Member with
respect to the Interest so acquired upon compliance with Section 11. In addition, the
Company shall have the right to retain and set-off against the Unpaid Additional
Contribution of a Defaulting Member and any accrued interest thereon all amounts
becoming otherwise distributable or payable to such Defaulting Member by the
Company. Any amount so retained and set-off by the Company shall be deemed to be a
constructive cash distribution to the Defaulting Member and a constructive payment by it
to the Company. Any payment, whether constructive or actual, shall be applied first
against any unpaid accrued interest on the Defaulting Member's Unpaid Additional
Contribution and the remainder shall be applied against its Unpaid Additional
Contribution.
c. Upon the dissolution and termination of the Company, that part of an
Additional Contribution contributed by a non-defaulting Member that corresponds
proportionately to the then Unpaid Additional Contribution of a Defaulting Member shall
be deemed to be a loan to the Company by the non-defaulting Member for purposes of
the distribution priorities set forth in this Agreement.
d. So long as a Member remains a Defaulting Member, such Member shall
have no voting rights with respect to decisions of the Company and only the votes of the
other non-Defaulting Members shall be taken into account for all such purposes. The
Defaulting Members and their Percentage Interests shall be disregarded completely for all
purposes of determining whether the requisite votes have been obtained from a Majority
or Unanimous vote of the Members and such requisite votes shall only be required out of
the non-Defaulting Members.
8
ARTICLE V
Allocations and Distributions
Section 5.01. Distribution of Cash Available for Distribution. Distributions of Cash
Available for Distribution and any property distributions shall be made not less
frequently than annually, unless otherwise agreed by a Majority Vote of the Members.
Any distribution in respect of property shall be allocated to the Member who originally
contributed the property to the Company. Any distribution of cash shall be allocated to
the Members according to the weighted average number of Units held by each Member
with all Outstanding Units being treated alike.
Section 5.02. Limitation on Cash and Property Distributions. Notwithstanding
Section 5.01 above, the company shall at all times maintain sufficient cash reserves at the
end of each day to allow the company to pay all projected accounts payable, as
determined in good faith by the Company's Manager(s), for the next thirty days.
Furthermore, distributions of Cash or other Property shall not in any event be made to
Members in a manner or amount which would result in the Company's violating the
requirements of any lender concerning the conditions precedent to the release of any
personal guarantees of the individual Members for the indebtedness of the Company or of
Paradisus Investments, L.L.C.
Section 5.03. Allocation of Income and Loss.
A. Except as provided in Section 5.03.B herein, all Tax Items shall be
allocated to all Members and Assignees in accordance with the Allocation Percentage
determined in Section 5.01 above during the period of allocation. Any distribution in
respect of stock or other non-cash assets shall be allocated directly to that Member's
capital account who contributed the stock or other non-cash asset to the Company.
B. Notwithstanding anything to the contrary in this Section 5.03, if there
is a net decrease in "minimum gain" (within the meaning of Treasury Regulations Section
1.704) during a fiscal year, all Members with a deficit balance in their Capital Accounts
at the end of that year shall be allocated, before any other allocations of Company, items
for such fiscal year, items of Income and gain for such year (and if necessary, subsequent
years), in an amount and in the proportions necessary to eliminate such deficits as quickly
as possible. The foregoing sentence is intended to be a "minimum gain charge back"
provision as described in Treasury Regulations Section 1.704, and shall be interpreted
and applied in all respects in1accordance with that regulation.
C. If dining any fiscal year of the Company, any Member unexpectedly
receives an adjustment, allocation, or distribution of the type described in Treasury
Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5), or (6), that Member shall be allocated
items of Income in an amount and manner sufficient to eliminate that Member's deficit
Capital Account balance as quickly as possible.
9
D. Under regulations prescribed by the Secretary of the Treasury pursuant
to Section 704(c) of the Code, items of Capital Gain, Income and Loss with respect to
property contributed to the Company by a Member shall be shared among Members as set
forth in Section 5.03.B and so as to take account of the variation between the basis of the
property to the Company and its fair market value at the time of contribution. Any items
allocated under this Section 5.03.D shall not be debited or credited to Capital Accounts to
the extent that item is already taken into account (upon formation or otherwise) in
determining a Member's Capital Account.
E. Upon the transfer of a Unit, Income, Capital Gain and Loss attributable
to the transferred Unit shall, for federal income tax purposes, be allocated to the owners
of such Unit on the basis of the Income or Loss for each month that such Person was the
owner of such Units, determined on a monthly interim closing of the books using the cash
basis method of accounting. The Members may revise, alter or otherwise modify the
method of allocation as they determine necessary to comply with Section 706 of the Code
and regulations or rulings promulgated thereunder.
F. If, and to the extent that, any Member is deemed to recognize Income
as a result of any transaction between the Member and the Company pursuant to Sections
482, 483, 1272-1274, or 7872 of the Code, or any similar provision now or hereafter in
effect, any corresponding resulting Loss or deduction of the Company shall be allocated
to the Member who was charged with that Income.
G. All tax credits for federal or state income tax purposes shall be
allocated to all Members and Assignees in accordance with the Allocation Percentage
determined in Section 5.01 above during the period of allocation.
ARTICLE VI
Management and Operation of Business
Business
Section 6.01. Managers. Management of the Company shall be vested in'one or
more Managers, as are appointed by the Members from time to time pursuant to this
Agreement. In the event that no Managers are appointed, or all Managers have been
removed from office as provided in this Article VI, the business of the Company shall be
under the exclusive management of the Members, and in such case, the unanimous
agreement of all Members shall be necessary for all decisions affecting the Company, and
individual Members shall have no power as such.
Section 6.02. Authority of Managers. A Manager or Managers may exercise all
the powers of the Company whether derived from law, the Articles of Organization or
this Agreement, except such powers as are by statute, by the Articles of Organization or
by this Agreement vested solely in the Members.
to
Section 6.03. Restrictions on Managers. Notwithstanding any other provision
hereof, no Manager or Managers shall, without the written consent or written ratification
of the specific act by all the Members:
A. Sell any Company Property not in the ordinary course of business;
B. Do any business which would make it impossible to carry on the
ordinary business of the Company;
C. Admit a Person as a Member, except as provided in this Agreement; or
D. Knowingly perform any act that would subject a Member to personal
liability.
Section 6.04. Number, Term and Qualifications. The Company may have one
or more Managers. Appointment or removal of Manager(s) or increases or decreases in
the number of Managers may be made as the Members shall from time to time determine,
by unanimous agreement. Each Manager shall hold office until his successor shall have
been appointed. Managers need not be Members of the Company.
Section 6.05 Manner of Acting. Until otherwise determined by a unanimous
vote of the Members, the business of the Company shall be managed by Kenneth L.
Knight who may act alone in managing and regulating the affairs of the Company.
Section 6.06 Outside Activities. Each Manager and such Manager's Affiliates
may have business interest and engage in business activities in addition to those relating
to the Company, including, without limitation, business interest and activities in direct
competition with the Company for such Manager's or such Manager's Affiliates' own
account or for the account of others, and no provision of this Agreement shall be deemed
to prohibit such Manager or such Manager's Affiliates from conducting such businesses
and activities. Neither the Company, the Members or the other Managers shall have any
right by virtue of this Agreement or the relationship contemplated herein in any business
ventures of such Manager or such Manager's Affiliates.
Section 6.07 Limitation on Liability of Managers. No Manager of the
Company shall be liable to the Company or its Members for monetary damages for
breach of fiduciary duty as a Manager; provided, however, that nothing contained herein
shall eliminate or limit the liability of a Manager (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 the law and (iii) for any
transaction from which the Manager derived an improper personal benefit.
ARTICLE VII
Rights and Obligations of the Members
Section 7.01. Limitation of Liability. Notwithstanding anything herein to the
contrary, except as otherwise expressly agreed in writing, a Member shall not be
personally liable for any debts, liabilities, or obligations of the Company, whether to the
Company, to any of the other Members, or to creditors of the Company, beyond the
Capital Account of the Member, together with the Member's share of the assets and
undistributed profits of the Company to the extent not reflected in the Capital Account of
the Member.
Section 7.02. Rights of Member Relating to the Company.
A. Subject to the restrictions of Section 7.03., this Agreement may be
amended only by a Majority Vote of the Members.
B. In addition to other rights provided by this Agreement or by applicable
law, a Member shall have the right on demand and at such Member's own expense:
1. To obtain any and all information regarding the status of the
business and financial condition of the Company;
2. Promptly after becoming available, to obtain a copy of the
Company's federal, state, and local income tax returns for each year;
3. To have furnished to it a current list of the name and last known
business, residence or mailing address of each Member;
4. To obtain information regarding the Capital Contributions made
by each Member;
5. To receive a copy of this Agreement and the Articles of
Organization and all amendments, together with copies of any powers of attorney
pursuant to which this Agreement, the Articles of Organization, and all amendments; and
6. To inspect and copy any of the Company's books and records
and obtain such other information regarding the affairs of the Company.
Section 7.03. Restrictions on Powers. Except as otherwise provided herein or by
the Mandatory Provisions-bf the Act, a Member shall not have the authority or power to
act on behalf of, or to bind, the Company, or any other Member, and a Member shall not
have the right or power to take any action which would change the Company to a general
partnership, change the limited liability of a Member, or affect the status of the Company
for federal income tax purposes.
12
Section 7.04. Indemnification.
A. Company Indemnity. To the maximum extent permitted by law, the
Company shall indemnify and hold harmless all Members, their respective Affiliates, and
the employees and agents of the Company (each, an "Indemnitee") from and against any
and all losses, claims, demands, costs, damages, liabilities,joint and several, expenses of
any nature (including attorneys' fees and disbursements), judgments, fines, settlements,
penalties and other expenses actually and reasonably incurred by the Indemnitee in
connection with any and all claims, demands, actions, suits, or proceedings, civil,
criminal, administrative or investigative, in which the Indenutee may be involved, or
threatened to be involved. as a party or otherwise, by reason of the fact that the
Indemnitee is or was a Member of the Company or is or was an employee or agent of the
Company, including Affiliates of the foregoing, arising out of or incidental to the
business of the Company, provided (i) the Indemnitee's conduct did not constitute willful
misconduct or recklessness; (ii) the action is not based on breach of this Agreement; (iii)
the Indemnitee acted in good faith and in a manner he or she reasonably believed to be in,
or not opposed to, the best interests of the Company and within the scope of such
Indemnitee's authority; and (iv) with respect to a criminal action or proceeding, the
Indemnitee had no reasonable cause to believe its conduct was unlawful. The termination
of any action, suit, or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendre, or its equivalent, shall not, in and of itself, create a presumption or
otherwise constitute evidence that the Indemnitee acted in a manner contrary to that
specified above.
B. Advancement of Expenses. Expenses incurred by an Indemnitee in
defending any claim, demand, action, suit or proceeding subject to this Section 7.04 may,
from time to time, be advanced by the Company prior to the final disposition of such
claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking
by or on behalf of the Indemnitee to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified as authorized in this Section
7.04.
C. Non-Exclusivity. The indemnification provided by this Section 7.04
shall be in addition to any other rights to which the Indemnitee may be entitled under any
agreement, vote of the Members, as a matter of law or equity, or otherwise, and shall
inure to the benefit of the successors, assignees, heirs, personal representatives and
administrators of the Indemnitee,
D. Insurancc. The Company may purchase and maintain insurance, at
the Company's expense;.oh behalf of any Indemnitees against any liability that may be
asserted against or expense that may be incurred by an Indemnitee in connection with the
activities of the Company regardless of whether the Company would have the power to
indemnify such Indemnitee against such liability under the provisions of this Agreement.
13
ARTICLE VIII
Books, Records,Accounting, and Reports
Section 8.01. Books and Records. Appropriate books and records with respect
to the Company's business, including, without limitation, all books and records necessary
to provide to the Member any information, lists and copies of documents required to be
provided pursuant to Section 7.02, shall at all times be kept at the principal office of the
Company or at such other places as agreed to by a majority of the Members. Without
limiting the foregoing, the following shall be maintained at the Company's principal
office: (i) a current list of the full name and last known business address of each Member;
(ii) copies of records that would enable a Member to determine the relative voting rights
of the Members; (iii) a copy of the Articles of Organization, and any amendments thereto;
(iv) copies of the Company's federal, state and local income tax returns and reports, if
any, for the three most recent years; and (v) copies of any financial statements of the
Company for the three most recent fiscal years. Any records maintained by the Company
in the regular course of its business may be kept on, or be in the form of, magnetic tape,
photographs or any other information storage device, provided that the records so kept are
convertible into clearly legible written form within a reasonable period of time.
Section 8.02. Accounting. The books of the Company shall be maintained on a
tax basis of accounting in accordance with the provisions of this Agreement, Section 704
of the Code, and to the extent not inconsistent therewith generally accepted accounting
principles for tax basis accounting.
Section 8.03. Fiscal Year. The fiscal year of the Company shall be the calendar
year, unless otherwise determined by Majority Vote of the Members.
ARTICLE IX
Tax Matters
Section 9.01. Taxable Year. The taxable year of the Company shall be the
calendar year, unless otherwise determined by Majority Vote of the Members.
Section 9.02. Tax Controversies. Subject to the provisions hereof, Kenneth L.
Knight is designated the "Tax Matters Partner" (as defined in Section 6231 of the Code),
and is authorized and required to represent the Company, at the Company's expense, in
connection with all examinations of the Company's affairs by tax authorities, including
resulting administrative and7udicial proceedings. Each Member agrees to cooperate with
the Tax Matters Partner, and to do or refrain from doing any or all things reasonably
required by the Tax Matters Partner to conduct such proceedings.
Section 9.03. Taxation as a Partnership. It being the intent of the Company to
be taxed as a partnership, no election shall be made by the Company or any Member for
14
the Company to be excluded from the application of any provision of Subchapter K,
Chapter 1 of Subtitle A of the Code or from any similar provisions of any state tax laws.
Section 9.04. Section 754 Election. The Company may, upon the Majority Vote
of the Members, elect pursuant to Section 754 of the Code, or the corresponding
provision of subsequent law, to adjust the basis of the Company's assets as provided by
Sections 734 and 743 of the Code.
ARTICLE X
Transfer of Units
Section 10.01. Transfer.
A. The term "transfer", when used in this Article X with respect to a Unit,
shall be deemed to refer to a transaction by which the Member assigns all or a portion of
his or her Units, or any interest therein, to another Person, or by which the holder of a
Unit assigns the Unit to another Person as Assignee, and includes a sale, assignment, gift,
pledge, encumbrance, hypothecation, mortgage, transfer by will or intestate succession,
exchange, or any other disposition.
B. No Units shall be transferred, in whole or in part, except in accordance
with the terms and conditions set forth in this Article X. Any transfer or purported
transfer of any Units not made in accordance with this Article X shall be voidable by the
Company. If the Company does not void the transfer, then the Assignee shall not be a
Substitute Member, and shall have no right to participate in Company's affairs as a
Member thereof, but instead shall be entitled to receive only the share of profits or other
compensation by way of income and the return of contributions to which the transferring
Member would otherwise be entitled at the time said transferring Member would be
entitled to receive the same.
Section 10.02. Transfer of Units by a Member.
A. If a Member intends to transfer or assign all or a portion the Units
owned by the Member to any person pursuant to a bona fide offer to which the Member is
willing to transfer or assign all or a portion of the Member's Units, the Member shall give
fifteen (15) days written notice to the Company and the remaining Members of such
intention. The notice, in addition to stating the Member's intention to transfer all or a
portion of the Member's Units, shall state: (i) the number of Units to be transferred;
(ii) the name and address of the proposed transferee; (iii) the amount of the consideration
associated with the bona'fide offer and (iv) the terms of the proposed transfer. On the
date of the delivery of such notice to the Company, the remaining Members shall become
entitled to exercise purchase options as provided below with respect to all of the Units
proposed to be transferred. For the purposes of this Section, the date on which the
remaining Members become entitled to exercise the purchase options shall be referred to
15
as the "Commencement Date", and the Units to which the purchase options apply shall be
referred to as the "Option Units".
1. Within thirty (30) days after the Commencement Date, each of
the remaining Members may exercise an option to purchase that proportion of the Option
Units which is equal to the proportion of Units owned by such remaining Member bears
to the total number of Units then owned by all such remaining Members. If any
remaining Member elects to purchase fewer than the maximum amount to which such
remaining Member is entitled, each other remaining Member shall be entitled to purchase
a pro rata share of the remaining Option Units (the "Overallotment Units") to be included
in the sale, such pro rata shares to be determined by an iterating process on the basis of
the respective number of Units held by each remaining Member electing to purchase
Overallotment Units. The purchase options described in this Section 10.02.A.1 are
sometimes hereinafter referred to as "Primary Options".
2. If, at the expiration of the thirty (30) day period provided for in
Section 10.02.A.1 for the exercise of Primary Options there are Option Units as to which
an option has not been exercised, the Company, within ten (10) days thereafter, may
exercise an option to purchase the remaining Option Units. The purchase option
described in this Section 10.02.A.2 is sometimes hereinafter referred to as the "Company
Option".
3. Exercise of the purchase options by the remaining Members or
by the Company shall be by delivery of written notice thereof, within the respective
periods hereinabove provided, to the Person from whom the Units will be purchased
pursuant to the option.
4. The purchase options shall be at the same price per Unit and on
the same terms as stated in the proposed transfer notice.
5. If the purchase options are not exercised with respect to all of
the Option Units, all remaining Option Units may be transferred, within thirty (30) days
after the expiration of the period for the exercise of the Company Option, to the transferee
named in the notice of proposed transfer and upon substantially the same terms therein
stated. The transferee and the transferring Member shall execute and file with the
Company all documents evidencing the terms of the transfer. However, as a condition
precedent to such transfer, the transferring Member shall cause the transferee to execute a
counterpart of this Agreement and thereby become subject to all of the provisions hereof
applicable to Members, and failure of such transferee to become a party to this
Agreement shall cause any-transfer to such transferee to be in breach of the provisions of
this Agreement. If the,femaining Options Units are not transferred within such thirty (30)
day period, the remaining Option Units automatically shall become subject once again to
the terms of this Agreement. If the transfer is in the form of a mortgage, security interest,
pledge, hypothecation or encumbrance, the remaining Option Units shall remain subject
to the terms of this Agreement.
16
B. No transferee may become a Substitute Member unless each Member
shall consent to the admission of the transferee as a Substitute Member, which consent
may be granted or withheld in each Member's sole discretion. The consent shall be
evidenced by a written instrument, dated and signed by each Member.
C. In no event shall any Unit be transferred to a minor or any incompetent
except by will or intestate succession or through a decree or judgment from a court of
competent jurisdiction.
D. The Company need not recognize, for any purpose, any transfer or
assignment of a Unit unless there shall have been filed with the Company and recorded
on the Company's books a duly executed and acknowledged counterpart of the instrument
of assignment and such instrument evidences the written acceptance by the transferee of
all of the terms and provisions of this Agreement and represents that such transfer or
assignment was as made in accordance with all applicable laws and regulations.
E. Any holder of a Unit (including a transferee thereof) shall be deemed
conclusively to have agreed to comply with and be bound by all terms and conditions of
this Agreement, with the same effect as if such holder had executed an express
acknowledgment thereof, whether or not such holder in fact has executed such an express
acknowledgment.
F. The transfer by a Member of all or a portion of his or her Units to a
revocable or living trust of the Member of which the Member is the trustee and such trust
is created for the benefit of such Member shall be permitted without the consent of the
other Members and without being subject to the provisions of Sections 10.02.A through
E.
Section 10.03. Restrictions on Transfer. Notwithstanding the other provisions
of this Article X, no transfer of any Unit of any Member in the Company shall be made if
the transfer (i) would violate applicable federal and state securities laws or rules and
regulations of the Securities and Exchange Commission, any state securities commission
or any other governmental authority with jurisdiction over the transfer; (ii) would affect
the classification of the Company as a partnership for federal or state income tax
purposes; or (iii) would affect the Company's qualification as a limited liability company
under the Act.
ARTICLE XI
Admission of Substitute and Additional Members
Section 11.01. Admission of Substitute Members.
A. Upon a transfer of a Unit by a Member in accordance with Article X,
the transferor shall have the power to give, and by transfer of any certificate issued shall
be deemed to have given, the transferee the right to apply to become a Substitute Member
17
with respect to the Unit acquired, subject to the conditions of and in the manner permitted
under this Agreement. A transferee of a certificate representing a Unit shall be an
Assignee with respect to the transferred Unit unless and until all of the following
conditions are satisfied:
1. The instrument of assignment sets forth the intentions of the
assignor that the Assignee succeed to the assignor's interest as a Substitute Member in his
or her place;
2. The assignor and Assignee shall have fulfilled all other
requirements of this Agreement;
3. The Assignee shall have paid all reasonable legal fees and filing
costs incurred by the Company in connection with his or her substitution as a Member;
and
4. The Members shall have unanimously approved such
substitution in writing, which approval may be granted or withheld by each Member in its
sole and absolute discretion and may be arbitrarily withheld, and the books and records of
the Company have been modified to reflect the admission.
B. The admission of an Assignee as a Substitute Member with respect to a
transferred Unit shall become effective on the date the Members give their unanimous
written consent to the admission and the books and records of the Company have been_
modified to reflect such admission. Any Member who transfers all of his or her Units
shall cease to be a Member of the Company only when the transferee or assignee is
admitted as a Substitute Member. Until that time, the transferring Member shall continue
to have all right and obligations of a Member, except those rights to distributions which
were transferred or assigned.
C. Notwithstanding the above, a Member who has acquired additional
Units shall be considered a Member with respect to all Units held by such Member.
Section 11.02. Additional Units and the Admission of Additional
Members. Additional Units may be authorized and issued by the Company for the
purpose of adding additional Members or otherwise upon such terms and conditions as
may be approved by a unanimous vote of the Members. Upon the proposed issuance of
any such additional Units, each existing Member shall have the preemptive right, but not
the obligation, to purchase such portion of the newly issued Units as the ratio of the
number of Units then held-by such Member bears to the total number of Units held by
Members and outstanding before the issuance of the new Units, together with such
Member's proportionate share of the other newly issued Units as to which other Members
fail to exercise their preemptive rights.
18
ARTICLE XII
Dissolution and Liquidation
Section 12.01. Dissolution and Liquidation. The Company shall be dissolved
and its affairs shall be wound up upon the occurrence of any of the following: (i) the term
of the Company stated in the Articles of Organization expires; or (ii) at least 75.5% of the
members vote to dissolve the Company. The death, withdrawal, retirement, resignation,
Bankruptcy or dissolution of a Member or the occurrence of any other event that
terminates the continued membership of a Member or an event of withdrawal of a
Member shall not cause the Company to be dissolved or its affairs to be wound up. Upon
the occurrence of any such event, the Company shall be continued without dissolution,
unless within 90 days following the occurrence of such event, the other Members
unanimously agree in writing to dissolve the Company. If the Company is not so
dissolved, the business of the Company shall continue (A) with the affected Member, if
living, remaining as a Member (unless the Member's Interest is purchased under the
provisions of this Operating Agreement), or (B) if such Interest is transferred to a
successor holder by operation of law, with such assignee being a permitted assignee of
the rights associated with such Interest; provided, that such assignee shall become a
Substitute Member only in accordance with Article 11 above.
Section 12.02. Method of Winding Up. Upon dissolution of the Company
pursuant to Section 12.01, the Company shall immediately commence to liquidate and —
wind up its affairs. The Members shall continue to share profits and losses during the
period of liquidation and winding up in the same proportion as before commencement of
winding up and dissolution. The proceeds from the liquidation and winding up shall be
applied in the following order of priority:
A. To creditors, including Members who are creditors, to the extent
permitted by law, in satisfaction of liabilities of the Company other than liabilities to
Members on account of their Capital Contributions or on account of a Member's
withdrawal from the Company or pursuant to a withdrawal of capital; and
B. The balance, to Members in accordance with their Capital Accounts.
Unless the Members shall unanimously determine otherwise, all distributions will be
made in cash, and the Company Property will be distributed in kind to the Members who
contributed the Company Property.
Section 12.03.,Filing Articles of Dissolution. Upon the occurrence of an event
set forth in Section 12.01, Articles of Dissolution shall be filed as required by the Act,
and each Member agrees to take whatever action may be advisable or proper to carry out
the provisions of this Section.
19
Section 12.04. Return of Capital The return of Capital Contributions shall be
made solely from Company Property.
ARTICLE XIII
Amendment of Agreement; Meetings; Record Date
Section 13.01. Amendments. All amendments to this Agreement shall require a
Majority Vote of the Members.
Section 13.02. Limitations on Amendments. Notwithstanding any other
provision of this Agreement, no amendment to this Agreement may (i) enlarge the
obligations of any Member under this Agreement; or (ii) amend this Section 13.02,
Section 13.01, or Section 7.03, without the unanimous approval of all Members.
Section 13.03. Meetings. Meetings may be called by any Member by giving at
least ten (10) days' prior notice of the time, place and purpose of the meeting to all
Members.
Section 13.04. Adjournment. When a meeting is adjourned to another time or
place, notice need not be given of the adjourned meeting, if the time and place thereof are
announced at the meeting at which the adjournment is taken, unless such adjournment
shall be for more than forty-five (45) days. At the adjourned meeting, the Company may
transact any business which might have been transacted at the original meeting. If the
adjournment is for more than forty-five (45) days, a notice of the adjourned meeting shall
be given in accordance with this Section 13.04.
Section 13.05. Waiver of Notice, Consent to Meeting; Approval of
Minutes. The transactions of any meeting of the Company, however called and noticed,
and whenever held, are as valid as though had at a meeting duly held after regular call
and notice, if a quorum is present either in person or by proxy, and if, either before or
after the meeting, each of the Members entitled to vote, but not present in person or by
proxy, approves by signing a written waiver of notice or an approval to the holding of the
meeting or an approval of the minutes thereof All waivers, consents, and appro'<als shall
be filed with the Company records or made a part of the minutes of the meeting.
Attendance of a Member at a meeting shall constitute a waiver of notice of the meeting,
except when such Member objects, at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or convened; and except that
attendance at a meeting is not a waiver of any right to object to the consideration of
matters required to be included in the notice of the meeting, but not so included, if the
objection is expressly.made at the meeting.
•
Section 13.06. Quorum. The holders of more than fifty percent (50%) of the
Units entitled to vote represented in person or by proxy, shall constitute a quorum at a
meeting of Members. The Members present at a duly called or held meeting at which a
quorum is present may continue to participate at such meeting until adjournment,
20
notwithstanding the withdrawal of enough Members to leave less than a quorum, if any
action taken (other than adjournment) is approved by the requisite percentage of Units of
Members specified in this Agreement. In the absence of a quorum, any meeting of
Members may be adjourned from time to time by a Majority Vote of the Members
represented either in person or by proxy entitled to vote, but no other matters may be
proposed, approved or disapproved, except as provided in Section 13.04.
Section 13.07. Action Without a Meeting. Any action that may be taken by any
vote of the Members may be taken without a meeting if a consent to such action is signed
by Members holding Units representing not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which all Units
entitled to vote thereon were present and voted. Prompt notice of the taking of any action
without a meeting shall be given to those Members who have not consented in writing.
ARTICLE XIV
General Provisions
Section 14.01. Notices. Any notice, demand, request or report required or
permitted to be given or made to a Member under this Agreement shall be in writing and
shall be deemed given or made when delivered in person or when sent by first class mail
to the Member at the address set forth on Exhibit A. Any notice, payment, or report to be
given or sent to a Member hereunder shall be deemed conclusively to have been given or
sent, upon mailing of such notice, payment, or report to the address shown on the records
of the Company, regardless of any claim of any Person who may have an interest in the
Unit by reason of an assignment or otherwise.
Section 14.02. Captions. All article and section captions in this Agreement are
for convenience only. They shall not be deemed part of this Agreement and in no way
define, limit, extend or describe the scope or intent of any provisions hereof. Except as
specifically provided otherwise, references to "Articles" and "Sections" are to Articles
and Sections of this Agreement.
Section 14.03. Pronouns and Plurals. Whenever the context may require, any
pronoun used in this Agreement shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural
and vice versa.
Section 14.04. Further Actions. The parties to this Agreement shall execute and
deliver all documents. provide all information and take or refrain from taking action as
may be necessary or appropriate to achieve the purposes of this Agreement.
Section 14.05. Binding Effect. This Agreement shall be binding upon an inure
to the benefit of the parties hereto and their heirs, executors, administrators, successors,
legal representatives and permitted assignees.
21
Section 14.06. Integration. This Agreement constitutes the entire agreement
among the parties hereto pertaining to the subject matter hereof and supersedes all prior
agreements and understandings pertaining thereto.
Section 14.07. Waiver. No failure by any party to insist upon the strict
performance of any covenants, duty, agreement or condition of this Agreement or to
exercise any right or remedy consequent upon a breach thereof shall constitute waiver of
any such breach or any other covenant, duty, agreement or condition.
Section 14.08. Counterparts. This Agreement may be executed in counterparts,
all of which together shall constitute an agreement binding on all the parties hereto,
notwithstanding that all such parties are not signatories to the original or the same
counterpart. Each party shall become bound by this Agreement immediately upon
affixing its signature hereto, independently of the signature of any other party.
Section 14.09. Applicable Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Colorado, without regard to its
principles of conflict of laws.
Section 14.10. Invalidity of Provisions. If any provision of this Agreement is or
becomes invalid, illegal, or unenforceable in any respect, the validity, legality, an
enforceability of the remaining provisions contained herein shall not be affected thereby.
Section 14.11. Conveyances. All of the assets of the Company shall be held in
the name of the Company unless the Members shall determine that any Member may
hold title to any property as nominee for the Company. Any deed, bill of sale, mortgage,
lease, contract of sale or other instrument purporting to convey or encumber the interest
of the Company of all or any portion of the assets of the Company shall be sufficient if
signed on behalf of the Company by one or more Members. No person shall be required
to inquire into the authority of any individual to sign any instrument which is executed
pursuant to the provisions of this Section 14.11.
Section 14.12. Agreement Supersedes Act The provisions of this Agreement
shall supersede and control over any and all provisions of the Act to the contrary to the
maximum extent permitted by the Act.
Section 14.13. Agreement Drafted by Counsel. Each Member acknowledges
that (i) McKinney & Stringer, P.C., has prepared this Agreement, and (ii) each other
Member has been advised and encouraged by such law firm to seek independent counsel.
The other Members acknowledge that such law firm may serve as counsel for the
Company after the date of this Agreement, and in the course of its representation of the
Company, potential conflicts of interest may exist now or in the future between the
interests of the Members and/or the Company. The other Members, for themselves and
the Company, hereby waive any such conflicts of interest; provided, however, no waiver
22
is hereby given as to any future conflict of interest that may arise. McKinney & Stringer,
P.C., shall be deemed to be a third-party beneficiary of this Section.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
this day of , 2001.
MEMBERS:
Kenneth L. Knight
K.C. Kelley
Jim Davis
Kevin Kalies
31049/00001/430854_1.DOC
23
ACKNOWLEDGMENTS
STATE OF OKLAHOMA )
) SS:
COUNTY OF OKLAHOMA )
Before me, a Notary Public in and for said county and state, on this of
, 2001, personally appeared , to me known to be
the identical person who executed the within and foregoing instrument and acknowledged
to me that he executed the same as his free and voluntary act and deed for the uses and
purposes therein set forth.
Given under my hand and seal of office the day and year last above written.
NOTARY PUBLIC
My Commission Expires
(Seal)
STATE OF OKLAHOMA )
) SS:
COUNTY OF OKLAHOMA )
Before me, a Notary Public in and for said county and state, on this of
, 2001, personally appeared , to me known to be
the identical person who executed the within and foregoing instrument and acknowledged
to me that he executed the same as his free and voluntary act and deed for the uses and
purposes therein set forth.
Given under my hand and seal of office the day and year last above written.
NOTARY PUBLIC
My Commission Expires•'
(Seal)
24
ACKNOWLEDGMENTS
STATE OF OKLAHOMA )
SS:
COUNTY OF OKLAHOMA)
Before me, a Notary Public in and for said county and state, on this of
, 2001, personally appeared , to me known to be
the identical person who executed the within and foregoing instrument and acknowledged
to me that he executed the same as his free and voluntary act and deed for the uses and
purposes therein set forth.
Given under my hand and seal of office the day and year last above written.
NOTARY PUBLIC
My Commission Expires
(Seal)
STATE OF OKLAHOMA )
) SS:
COUNTY OF OKLAHOMA )
Before me, a Notary Public in and for said county and state, on this _ of
, 2001, personally appeared , to me known to be
the identical person who executed the within and foregoing instrument and acknowledged
to me that he executed the same as his free and voluntary act and deed for the uses and
purposes therein set forth.
Given under my hand and seal of office the day and year last above written.
NOTARY PUBLIC
My Commission Expires
(Seal)
25
05/09/01 21:54 FAX 4053484248 ALACO FOODS el 01
EXHIBIT A
Percentage
Name and Address of Member Number of Units Ownership
Kenneth L.Knight 25.5%
K.C.Kelley 25.5%
Jim Davis 22.0%
Kevin Kalies 22.0%
Larry Knight 5.0%
31049/00001/430/54_I.DOC
26
MAY-08-2001 15:21 CO LIQUOR ENFORCEMENT DIU 303 205 2341 P.02/03
STATE OF COLORADC
LIQUOR ENFORCEMENT DIVISION
Department of aevence
Business Location
1881 Pierce Street • Lakewood, Colorado 80214 u{ + , r
Phone 303.205.23W a�`f •
FAX 303.205.2341
Mailing Address
Liquor Enforcement Division • Denver,Colorado 80251
Email nhamoycspike.dor.;tare.co.vs Bill Ower
Website:www,state.co.us/gv air/revenue dir/liquor did Govern;
liquor.hrml
Find Fish(
May 08, 2001 Executive Direct.
David C. Rci'
Alpine Station, LLC Division Direc:c
Conoco Food Stores
2329 SW 15th Street
Edmond OK 73013
Re: Chain Store Application for Alpine Station, LLC dba Conoco Food Stores
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:
Kevin Kalies DOB
2. Fingerprint cards bearing the names and birth dates of the persons listed in
paragraph 1. have been checked by CBI and FBI and reportedly found no
record of any criminal history for those listed above
3. Certificate of Authority or a Certificate of Good Corporate standing from the
Colorado Secretary of State which indicates that Alpine Station, LLC, is a
corporation authorized to do business in Colorado.
MAY-08-2001 15:22 CO LIQUOR ENFORCEMENT DIU 3033 205 2341 P.03'03
Alpine Station, LLC.
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 new license or transfer of ownership
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;
O 3. A copy of this letter;
❑ 4. Proof of possession of the premises;
0 5. A diagram of the licensed premises;
0 6. Completed form DR 8442, if manager's registration is required.
Sincerely,
Matt D. Cook
Licensing Administrator
Alpine2.mas
TOTAL P.03
•-DR MD"- DFFARfMENr OF REVENUE -aeisty t.r3' �'i. 3�t5 1�w��1118 M' -ras-tF- '..�-_:. aiY ^Ct-
•
uotlORerIFORCE►tENrDIVtsION ;..gym ti-T-IT -'1l:1,. _bSYCtLXLCARRS1lMRAll�IHun: mos.PG - -''.77'-'''' r--
t375 SHERMAN STREET ' . . 0)717- 7 - _ .'�,.' i:a
DENVER CO 802(11 . .. . .. - -- -- . : _ ._ -._ _ - :- ' '
- - INDIVIDUAL HISTORY RECORD - - -
To be completed by each individual applicant,all general partners of a partnership,all limited partners owning 10%(or more)of a
partnership;all officers and directors of a corporation,all stockholders of a corporation owning 10%(or more)of the stock of such
corporation;all limited liability company MANAGING members,or other limited liability company members with a 10%(or more)
ownership Interest in such company End all managers of a Hotel and Restaurant license"
NOTICE:This individual history record providesbasic information which is necessary for the licensing authorities investigation.ALL questions
must be answered in their entirety.EVERY answer you give will be checked for its truthfulness.A deliberate falsehood will jeopardize the
application as suc:, :e:sa;:ood within itself constitutes evidence regarding the character of the applicant.
1.Name of Business Date Social Security Number(s)
ALPINE STATION LLC 04/17/01
2.Your Full Name(last,first,middle) 3.Also Known As(maiden nameinickname.etc.;
KNIGHT, KENNETH LYNN KEN
4.Mailing Address(it different from residence) Home Telephone
2329 S.W. 15TH STREET, EDMOND, OK 73013 405-478-7717
5.Residence Address(street and number,oily.state,ZIP)
13508 GREEN CEDAR LANE, OKLAHOMA CITY, OK 73131
6.Date of Birth _ Place of Birth 7.U.S.Citizen?
I JASPER, AL K Yes ri No
If Naturalized,state where When I Name of U.S.Dismct Court
N/A N/A I N/A
Naturalization Certificate Number I Date of Certificate It an Alien.Give Aliens Rasmussen Card Numter I Per ane=nt Residence Card Nutter
N/A N/A N/A I N/A
8.Height Weight I Hair Color Eye Color Sex Race 9.Do You Have a current Dnver's License?If yes,give number.&state
5'10" 170 I BROWN GREEN MALE CAUC P Yes El No
10.Name of Present Empoyer -- I 11.Type of Business or Employment
ALACO FOODS ET. AL./ALPINE STATION LLC FAST FOOD RESTAURANT/CONVENIENCE STORES
12.Address of Business Where Employed(street number,city,state,ZIP) I Business Telephone
2329 S.W. 15TH STREET, EDMOND, OK 73013 1405-341-2800
13.Present Position _
MANAGING MEMBER •
14.Marital Status 15.Name of Spouse(include maiden name if applicable)
MARRIED DEBORAH KELLEY KNIGHT
16.Spouse's Date of Birth Spouse's Place of Birth
TUSCALOOSA, AL
17.Spouse's residence address,if different than yours(street and number,city.state.ZIP)
I SAME - .
a
18.Spouse's Present Employer I Occupation
NONE I N/A
it Address of Spouses Present Employer
- N/A
20. List the name(s) of all relatives working in or having a financial interest in the liquor industry.
NAME OF RELATIVE L RELATIONSHIP TO YOU I POSITION HE-DI NAME OF EMPLOYER i LOCATION OF EMPLOYER
NONE i�
•
21.Do you now,or have you ever held a State of Colorado Liquor or Seer License,or'cared money,furniture.fixtures,equipment or inventory,to any Colorado Liquor or Beer
Licensee?If yes,answer in detai
❑ Yes Ea No
_ rn,muncn nu laminae.=etne - -
•
z2.Mavey0M everbeen convicted aa crime,« bait« offense incritmW« o l4 '•noindu7s
viotaGorro,tnlaas may resulted l ; �� cCSf�of tlrivYg wlderths innuence a dn,ga a !Yak-
explain in detail - «..
tigipm
❑ Yes ® No
23.Have you ever received a violation notice,suspension ex-revocation for a liquor lawviolation,or been denied a liquor or beer license anywhere in the U.S.?It yes.explain in detail.
❑ Yes I." ® No
24.Military Service(branch) - - From To Serial Number I Type of Discharge
NONE L
25.
List all addresses where you have lived for the past five years. (Attach separate sheet if necessary)
STREET AND NUMBER j CITY.STATE.ZIP FROM TO
13508 GREEN CEDAR LANE OKLAHOMA CITY, OK 73131 1994 PRESENT
26.List all former employers or businesses engaged in within the last five years. (Attach separate sheet if necessary.)
NAME OF EMPLOYER i ADDRESS(STREET.NUMBER.CITY,STATE.ZIP) I POSITION HELD I FROM TO
2329 S.W. 15TH STREET, EDMOND, IMEMBERNG '1985 PRESENT
ALACO FOODS ET.AL.
OK 73013
•
27.What is your relationship to the applicant?(sole owner,partner.corporate officer,director,stoWwWer,member or manager)
MANAGING MEMBER
28.If stauhoider,number of shares owned beneficially or of record Percent of outstanding stock owned
N/A N/A
29. if partner,state wnetner ` General E Limited Percent of Partnership Owned If Limited Lability Company(percent owned)
N/A N/A 25.50%
20.Total amount you will invest in this business.including notes,bans.cash.services or equipment,and operating capital.(Reg.46-106.1 and Reg.47-107.1)
Amount S 0
31' Identify the sources of all funds you will invest in this business as listed in 30 above. List all bank names,
account numbers and the amount derived from such source.Also identify all persons authorized to sign on,
or who are part owners of said account. (Attach copies of all your notes or loans used in or for this business.)
Amounts Sources - Account Numbers Names on accounts or person who can
sign on this account
$ NONE
` -
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 knowledge.
Aut wwww Signature Title Date
DR 8404-1(02(94) NSW ItBIALIMPT1eARUCAIR
COLORMUCH N DEPARTMENT ISF ONyeNUE WEI L.OILCAM IOMIRMatHU NGS.PC
MUCH ENFORCEMENT DIVISION
1375 SHERMAN STREET (303)777-3737
DOVER CO 80251
• INDIVIDUAL HISTORY RECORD
To be completed by each individual applicant,all general partners of a partnership,all limited partners owning 10:(or more)of a
partnership;all officers and directors of a corporation,all stockholders of a corporation owning 10%(or more)of the stock of such
corporation; all limited liability company MANAGING members, or other limited liability company members with a 10% (or more)
ownership interest in such company and all managers of a Hotel and Restaurant license.
NOTICE:This individual history record provides basic information which is necessary for the licensing authorities investigaucr,.ALL questions
must be answered in their entirety. EVERY answer you give will be checked for its truthfulness.A deliberate falsehood will jeopardize the
application as such falsehood within itself constitutes evidence regarding the character of the applicant.
1.Name of Business Date Social Security Numbers)
ALPINE STATION LLC 04/17/01
2.Your Full Name(last.first.middle) ( 3.Also Known As(maiden.-arenicxname.etc.,
KELLEY, KIDD CLIFFORD I K.C.
4.Mailing Address(if different from residence) I Home Telephone
N/A 205-759-5593
5-Residence Address Minna and matter,ON,state,ZIP)
417 32ND PLACE E. , TUSCALOOSA, AL 35405
&Date of Birth I Place of Binh 7.U.S.Citizen?
. TUSCALOOSA, AL n Yes El No
If Naturalized.state where When Name of U.S.Oistrict Cour.
N/A N/A N/A
Naturalization Certificate Number Date of Certificate If an Alien.Give Aliens Reparation Card Number Penrarert=+wsra Card"aarver
N/A N/A N/A N/A
B.Height Weight ! Hair Color Eye Color Race
e 9.Do You Have a current Drivers License?If yes,give .-_er.3 state
5'911 1 200 ' BROWN I GREEN MALE CACU g Yes !! Ne
10.Name of Present Employer f 11.Type of Business or Employment
RETIRED N/A
12.Address of Business Where Employed(street number.aty,state,ZIP) Business Teiepnone
N/A N/A
13.Present Position
•
N/A
'4.Startai Status ' 15.Name of Spouse(include maiden name if acpticab!et
MARRIED MARTHA OSBORNE KELLEY
6.Scousa s Date of Blrh l Spouse's Place of 9irn
j TUSCALOOSA, AL
17. Sccuses residence address.t1 different Man yours(street and number.city.state.ZIP)
SAME
13.Spouse's Present Employer Occupation
NONE N/A
19.Address of Spouse's Present Employer
N/A
20. List the name(s) of all relatives working in or having a financial interest in the liquor industry.
NAME OF RELATIVE ' RELATIONSHIP TO YOU I PosnioN HE!DI NAME OF EMPLOYER LOCATION OF EMPLOYER
•
NONE 1 �7'
•
1
1 I
•
I I
21.Do you now,or have you ever hold a State of Colorado Lousy or Beer License.or loaned money,furniture.fixtures.equipment or Inventory,to any Coloratn Liquor or Beer
Lcensee?If yes,answer in detail
LI Yes ® No
CONTINUED ON REVERSE SIDE
_.. DR 84044(2/94) Page __. as _
-
. 22.Have you
,ur'ever kiss lolacrime.or bag for any offense mulmFmiprnY9Wyou (Domfifr i s' �
stain in detail
9 .XaFfi9S�!'d 4t9" a driving under the mnuence orAtye or .�r s.�*.Yom. . Yap..... —
❑ Yes No - art TT(EOE) ,1srx M^ a.
23.Have you ever received a violation notice,suspension or revocation for a liquor law violation,or been denied a liquor or beer license anywhere in the U.S.?II yes,explain in detail.
❑ Yes ' a No
24.Military Service(branch) From I To Serial Number Type of Discharge
NONE N E---- N/A
/A
26. _
List all addresses where you have lived for the past five years. (Attach separate sheet if necessary)
STREET AND NUMBER I CITY, STATE,ZIP FROM TO
I
417 32ND PLACE E. TUSCALOOSA, AL 35405 FOR OVER 5 YEARS
26.
List all 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) I POSITION HELD I FROM I TO
N/A - RETIRED FOR PAST 4 YEARS
I
I
27.What is your relatiansnip to he applicant?(sole owner,partner,corporate officer,director.stodmolder,member or manager)
MEMBER
26.If stocxhoider,number of snares owned benefic:atiy or of record Percent of outstanding stock owned
N/A N/A
29.If partner,state wnetner ;� General L' Limited Percent of Partnership Owned If Limned Lability Company(percent owned)
N/A N/A 25.50%
20.Total amount you will invest in this business.:ncluding notes.:cans,cash.seances or equipment.and operating capital.(Reg.48-106.1 and Reg.47-107.1) •
Amounts 0
31' Identify the sources of all funds you will invest in this business as listed in 30 above. List all bank names,
account numbers and the amount derived from such source.Also identify all persons authorized to sign on,
or who are part owners of said account. (Attach copies of all your notes or loans used in or for this business.)
Amounts Sources -Account Numbers Names on accounts or person who can
sign on this account
$ NONE
$ !
$
$
E78asof
/c.).2,-."..:.:.‘: rc„en ,;r er IIIattachments e, correct, and camp/eie to the best
/ Y' /�:/ .it8 dc.....;t:..r:y'!2@ that:his_Nj.tl0.aGLfi and all attee.e, Ct uo are true,
of my�knatvledge.
Authorized Signature lilts 1 Date
-X C I ttit-e 0.3b� I 4-I9-cl ;
•
• DR 8404-I(0204)• - - - _ 'Pf1�0NlmW,Q7idA}llJG1tR
COLORADO DEPARTMENT OF REVENUE - BYm masem R Sl)+0NlRMIM1R _ . -LIQUOR ENFORCEMENT DIVISION .� .. iRJ1+CHIN03,P.C. -- -
1375 SHERMAN STREET . (30)777-3737
DENVER CO 80281
- INDIVIDUAL HISTORY RECORD
• To be completed by each individual applicant,all general partners of a partnership,all limited partners owning 10%(or more)of a
partnership;all officers and directors of a corporation,all stockholders of a corporation owning 10%(or more)of the stock of suc.'
corporation;all limited liability company MANAGING members,or other limited liability company members with a 10%(or more
ownership Interest in such company and all managers of a Hotel and Restaurant license.
NOTICE:This individual history record providesbasic information which is necessary for the licensing authorities investigation.ALL question:. '
must be answered in their entirety. EVERY answer you give will be checked for its truthfulness.A deliberate falsehood will jeopardize the
application as such falsehood within itself constitutes evidence regarding the character of the applicant.
1.Name of Business Oate Social Security Number(s)
ALPINE STATION LLC 04/17/01
2.Your Full Name(last,first,middle) 3.Also Known As(maiden namenickname,etc.,
DAVIS, JIM L. N/A
4.Marling Address(if different from residence) Home Telephone
SAME - 405-478-3215 •
5.Residence Address(street and number.dry,state.ZIP) - I
13509 SILVEREAGLE TRAIL, EDMOND, OK 73013 -
8.Date of Birth Mace of Binh 7.U.S.Citizen?
OKLAHOMA CITY, OK DiYes ❑ No
If Naturalized state where When Name of U.S.District Court
N/A N/A N/A
Naturalization Certificate Number ' Date at Certificate 8 an Ain,Give Alien's Registration Cam Numcer I Permanent Pes;mce Card Number
N/A N/A N/A I N/A
8.Height Weight Hair Color Eye Calor Sex Race 9.Do You Have a current Dnvers License?If yes,give rumter,&state
6'1" 185 , BROWN BROWN MALE CAUC . SIYes ❑ No
10.Name of Present Employer 11.Type of Business or Employment
SELF / REALATOR I COMMERCIAL REAL ESTATE
12.Address of Business Where Employed(street number,city,state.ZIP) I Business Telephone
SAME AS HOME 405-627-7310
13.Present Position -
REAL ESTATE BROKER
14.Mental Status 15.Name of Spouse(include maiden name if appridable)
MARRIED JERIANNE DAVIS [UNGER]
16.Spouses Date of Birth Spouse's Place of Birth
MIAMI, OK.
17.Sacuse's residence address.I different than yours(street and number.dry.state.ZIP)
SAME -
18.Spouse's Present Employer Occupation
OKLAHOMA SURGERY S UROLOGY CENTER SURGICAL NURSE
t 9.Address of Spouse's Present Employer
5401 N. PORTLAND AVE. , OKLAHOMA CITY, OK 73112
20. List the name(s) of all relatives working in or having a financial interest in the liquor industry.
NAME OF RELATIVE . RELATIONSH)P TO YOU !POSITION HELD I NAME OF EMPLOYER IF LOCATION OF EMPLOYER
NONE
•
•
21.Do you now,or have you ever held a State of Colorado Liquor or Beer License,or loaned money,furniture.fixoues,equipment or inventory,to any Colorado Lquor or Beer
Licensee?If yes.answer in detail
❑ Yes I No
•
.._.. _ rn\IT\II ter\rat IIn a-.-.
..DR 8404.1(2/94) Paget —.._. _ _ _ _ __ .._ ..•
V.Have you ever been convicted clamant a bail for any offense in criminal or milwycourt? not. (Oo , 6lchrdeb.11k
violations,unless they resulted� .qq dzigy`itree%* /stab of drmrg under the influence 01&U93 or ale..be firWel )
explain in tlit-ITT(EOE)
❑ Yes ® No
23.Have you ever received a violation notice,suspension or revocation for a liquor law violation.or been denied a liquor or beer license anywhere in the U.S.?Byes,explain in detail.
❑ yes ® No
24.Mary Service(branch) _ From To Serial Number Type of Discharge
NONE -
25.
List all addresses where you have lived for the past five years. (Attach separate sheet if necessary)
STREET AND NUMBER I CITY, STATE,ZIP FROM TO
13509 SILVEREAGLE TRAIL EDMUND, 01 _710_11 1986 ?RESEN
2e.List all former employers or businesses engaged in within the last five years.(Attach separate sheet if necessary.)
NAME OF EMPLOYER I ADDRESS(STREET,NUMBER,CITY. STATE,ZIP) I POSITION HELD I FROM TO
EAL ESTATE
SELF - SAME AS HOME BROKER 1982 PRESEN
27.What is your relationship to the applicant?(sole owner,partner,corporate officer,director.stockholder.member or manager)
MEMBER •
28.If stockholder,number of shams owned beneficially or of record Percent of outstanding stock owned -
N/A N/A
29.if partner,state wnetner O General O Limited Percent of Partnership Owned If Limited d Liability Company(percent owned)
N/A N/A
30.Total amount you will invest in this business,including notes.loans,cash.services or equipment,and operating capital.(Reg.46-106.1 and Reg.47-107.1) --
Amount S D
37' Identify the sources of all funds you will invest in this business as listed in 30 above. List all bank names,
account numbers and the amount derived from such source.Also identify all persons authorized to sign on,
or who are part owners of said account. (Attach copies of all your notes or loans used in or for this business.)
Amounts j Sources - Account Numbers Names on accounts or person who can
sign on this account
NONE
r
S
S
3
-,. O>idhoF/�ppNcarti
I declare under penalty of perjury in the second degree that this application and all attachments are true, correct,and complete to the bes;earof my knowledge.
Authorized Signature Title Date-
/ MenBf,C g-/7-0/
•
DR 8104 I(02/94) PLIDONIONALPOPTHBANLICANT
LIQUOR
ENFORCEMENT o 0 NVQ/t1E BYDLLDLLGRRSrONRIRA�t!RUTCRINOS.P.G
1375 SH RANRT DIVISION
1375 SHERMAN STREET (303)Tr/'j737
DENVER CO 80261
• INDIVIDUAL HISTORY RECORD
To be completed by each individual applicant,all general partners of a partnership,all limited partners owning 10%(or more)of a
partnership;all officers and directors of a corporation,all stockholders of a corporation owning 10%(or more)of the stock of such
corporation; all limited liability company MANAGING members,or other limited liability company members with a 10% (or more)
ownership interest in such company and all managers of a Hotel and Restaurant license.
NOTICE:This individual history record provides basic information which is necessary for the licensing authorities investigation.ALL questions
must be answered in their entirety. EVERY answer you give will be checked for its truthfulness.A deliberate falsehood will jeopardize the
application as such falsehood within itself constitutes evidence regarding the character of the applicant.
1.Name of Business Date Social Security Number(s)
ALPINE STATION LLC 04/17/01
2.Your Full Name(last.first.middle) ! 3.Also Known As;maiden nameimcxname.etc.,
KALIES, KEVIN N/A
4.Mailing Address(it different from residence) ! Home Teleprcre
SAME j 405-214-6666
5.Residence Address(street and runner.aly.state,ZIP)
37805 45TH STREET, SHAWNEE, OK 74804
6.Date of Birth Papa of Binh 7.U.S.Citizen?
I SHAWNEE, OK Yes ❑ No
If Naturalized.state where j When Maine of U.S.Dismct Court
N/A
Naturalization Certificate Numcer Date of Certificate i !I an Men,Give Miens Regstranon Cara Numcer %eprarent Feccenca Cam Nicar
N/A l i
8.Height I Weight Hair Color I Eye Color Sex Race 9.Do You Have a current Dryers License?:f yes.give-curter.&state
6'2" I 182 BROWN I GREEN MALE CACU M Yes !INo
t0.Name of Pre:.ent Employer 11.Type of Business or Employment
SELF REAL ESTATE
12.Andress of Business Where Employed(street numoer,aty,state,ZIP) Business Telepnone
SAME AS HOME 405-641-8058 •
13.Present Position
INVESTOR •
a.Martial Status • 15.Name of Spouse('.nctuce margin name if a:plicat e,
DIVORCED I N/A •
16.Scotia s Date of Binh Spouses Place of Birm
N/A • I i N/A
7.Scouse s residence adnr?ss,1 ddterent man yours street and number.ary.state.ZIP) •
N/A
:8.Spouse's Present Employer i Occupation
N/A N/A
t9.Andress of Spouses Present Employer
N/A
20. List the name(s) of all relatives working in or having a financial interest in the liquor industry.
NAME OF RELATIVE t RELATIONSHIP TO YOU PCSIIICN HEDI NAME OF EMPLOYER LOCATION OF EMPLOYER
I � I
NONE
t i
' ! I
' I
21.Do you now.or have you ever held a State of Colorado Liquor or Beer License.or loaned money,furniture.fixtures,equipment or inventory.to any Colorado Liquor or Beer
Licenses?If yea,answer in detail
U Yes la No
CONTINOEO ON REVERSE SIDE
•
22.Have you ever been wmiotedofaGine,a"violations;unless
l�i(sioetlf dnvmanyoftenseinedmie o(thu larycvtp(q(ponptjncjtpep j o
explain in detail y ' ... .,« 'gteri? Q' �of driving under the influenie"ordrua ofakroriaicheverapea"r -•
El Yes No SITE-ITT(EOE) 3as_i sca.uss;
Z3.Have you ever received a violation notice.suspension or revocation for a liquor law violation.or been denied a liquor or beer license anywhere in the U.S.?If yes,explain in detail.
❑ Yes in No
24.Hatay Salvia(branch) From To Serial Number Type of Discharge
NONE
25.
List all addresses where you have lived for the past five years.(Attach separate sheet if necessary)
STREET AND NUMBER I CITY.STATE.ZIP I FROM TO
37805 45TH ST. SHAWNEE, OK 74804 00 PRES
33100 GARRETTS LAKE RD. MCLOUD, OK 74874 99 00
3929 N. KICKZPOO SHAWNEE, OK 74804 97 99
37803 45TH ST. SHAWNEE, OK 74804 91 97
zs.
List all former employers or businesses engaged in within the last five years. (Attach separate sheet if necessary.)
NAME OF EMPLOYER ADDRESS(STREET.NUMBER.Cm( STATE,ZIP) I POSITION HELD I FROM I TO
N/A
27.What is your relationship to the applicant?(sole owner,tanner corporate officer.director,stoc anger,memoer or manager)
MEMBER
28.:f stocanocer,number of snares owned beneficarly or of record Percent of outstanding stock owned
N/A N/A
29.if partner,state wnemer ! Genera] J. limited Percent of Partnersnc Owned If Lmited Laoilty Company(percent owned)
N/A N/A 22%
20.Total amount you will Invests this business,stating notes.:pans.oath,services or equipment,and operating capital.(Reg.46-106.1 and Reg.47-107.1)
Amount$ 0
31 Identify the sources of all funds you will invest in this business as listed in 30 above. List all bank names,
account numbers and the amount derived from such source. Also identify all persons authorized to sign on,
or who are part owners of said account (Attach copies of all your notes or loans used in or for this business.)
Amounts Sources -Account Numbers Names on accounts or person who can
sign on this account
•
NONE I /
$ I 7
•
$ J
Oa�ofApp
. _.. _ tl� .+v. . '.. .._. 4>>•.� Rro<- �-Y�?:caw
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 knowledge.
autfgrma Signature Tide Date
04/20/01 03:57 FAT 4053484248 ALACO FOODS la 02
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SHELL CAPITAL COMMERCIAL FINANCE
if
April 20,2001
App Samos,LLC
Paradisua favaatmema,LLC
2329 S.W. 15°St
I Edmond,OK 73013
jkr Shell Capital lac.(the Sande)hear approved the loan appbeatioo ofPandiaus 7avemmeots,1,LC and Alpine
Sudan,IC(collectively the Bottowen")and is pleased to issue this commitment letter(the"Commitmea tn)
subject to sod eourifimed on the following terms and a ndidons:
A. BASIC CREDIT'TAMS
LENDER Shell Capital Inc
BORROWERS: Paradigm Inves eats,LLC and Alpine Station,LLC jointly and
severally
GUARANTOR Each guarantor listed below shall guarantee the Loan in proportion to
their ownaship interest in Paradisus love d:metro,LLC as set forth
i
below.
Kenneth L Knight,25.5%
ICdd C.Kelley,25.5%
�! Kevin B.Kalica,19.S%
Tim L.Davis, 19.5%
Carter Petroleum Products,Inc.,10.0%
li The guarantee would be released alter two yam if(a)Borrowers we in
full compliance with the loan documents,(b)no default Ms ocgaxed,
and(e)Borrowers Gandy)she have a Fixed Charge Coverage''Ratio
above 1.35 atlas end of year two.
111
LOAN AMOUNT: Up to an amount not to emceed 59950,000.
TERM I AMORTIZATION: The tam of the Loan would be 180 months. Monthly principal and
interest payments an the Loan shall be payable in arrears,calculated on
a 180 month amortization.
•
USE OF PROCEEDS: Acquisition of eleven(11)Conoco fence starers and gas atettcoa
it Colorado.
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CONDITIONS TO APPROVAL:
• Lender's receipt of and satisfaction with credit and trade references
from Conoco,Care-Mark and Red Rick Distribution,u well as
remit references from Regions Bank sod Bank of America
• Lender's receipt of and satisfaction with business valuation reports
prepared by Deluitte&Touche(the`D aT Business Valuation.
Reports")on all Sites(sa defined below).
• Each Site must be approved for Student Lender's AID
Environmental Insurance Policy("Ala Policy").
• Lender's Satisfaction with purchase agreement between Carter
Petroleum Products,Inc,Xayo Oil Compete,sod Cameo,Me.
• Lender's receipt of and satisfaction with simply agreement between
Carter Petroleum Products,Inc Ind Conoco,lne.
• Lender's receipt of and satisfaction with agreemmb between
Carter Petroleum.Products,Inc and Borrower,including supply
agreements for each Site,aid management end wasting
agreements if any.
• Lender's receipt of and saafi feedon with the lease agreements
between Paradisus lnvestmeota,LLC end Alpine Station,MC
Least agreements shall be fully suborn mentl to the Loan.
• Lerida'a receipt of and satisfaction with the management
agreement between Alpine Station,LLC and Double IC Croatia,
Inc.Management agreement shell be fully subordinated to the
Loa
• Lender's receipt of and setlsfacttan with the opa sti ng agreements
for Paradisus Investments,LLC and Alpine Station,LLC.
• Leader's receipt of and satisfactory review of all organizational
doaamme of Borrowers.
• trader's receipt of evidence satisfactory to Lender that Borrowers
are ba absence and good standing in their jurisdiction of
incorporation.
• Leader's receipt end satisfactory review of Borrowers'pro forma
frnendes and capital spending budget
• Lender's completion of and satisfaction with other ongoing credit
and due diligence that is usual and customary in this type of
transaction_
• Borrowers shall execute and deliver all accessary closing
documents required by Lent or its oounse.These documents
may include,but ate not limited to a loan and security agreemem,
promissory notes,mortgages,or deeds of mat and assignMents
• Evidence satisfactory to Lender that Borrowers have all toy
certificates of occupancy,approval,licenses and permits to operate
the Sites.
• Lender's receipt of and•ui•faction with all doctrmmtaion
necessary to mere a first lien on and first priority perfected
security interest in the Collateral(defined below?). This
documentation may include, but is not limited to,a mortgage cite
Meat=policy in favor of the Leader,UCC financing statements
/ and surveys.
• Borrowers must maintain hazard,general liability,business
inteauption,and other insurance required by Lender with an
Insurance company acceptable to Lender.
• Opinion of Borrowers' camel in form and substance acceptable m
Lends.
2
04/20/01 03:57 FAX 4053484248 AL0 FOODS X04
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04/20/01 15:27 FAX 7132418548 Shell Capital a 00
E CONDr aNS TO APPROVAL
e (continued)
• Completion of due diligence on the principal owners ofBanowe rs,
including pawl uedit bureau reports.
•
• Leader mum be in receipt of and satisfied with any other pertinent
l legal document to dose the Lora
I.
COLLATERAL: Commercial Real Elate:The Loan will be seemed by a valid and
Iperfected fiat lien mortgage in favor of Lender an all sits(and related
fixtures) listed in OM:0 3ZT A(each,a"Site"and cof eaiveiy,the
1 'Sinew).
I Business Anew; The Loan will be seemed by a first priority aecceity
t interest in aver offender in ell Borrowers'meets located at the Sites,
Iincluding any mete&thereat whether now or hereafter own+8 and
wherever located.
I.
ICROSS-DEFAULT AND
` CROSS COLLATE at r'aTION
PROVISIONS: Ends Loan shall be mbjeec to erns-defeush and cross-relbteraleation
Iprovision.
tt SOURCES&USES: lag
Acquisition Price $9,300,000
Pay-Off Conoco or wash leases —" $87,000
I POS System — 5220,000
Security System S220,000
Purchase Equipment $200,000
l Improv memb $20,000
I Inventory S630,000
` Clmng Cants and Other $418,000
f wig Capital 5133.044
ITataL $11,053,000
Saoram
i. Shell Capital Lost $9950,000
h Bonvwe s: ;1.103.000 `
Total $11,053,000
I
'- INTEREST RATE: The Interest rate volt be set at 385 basis points(3.85%) above the
published avenge yield as U. S.Treasury Notes manning
sppralciraately ten(10)years from the date of closing payable meet*
in were commencing the the month
II. the doh of the toosung
The interest rate will be deberm' two(2)busmen.days prior toF , dosing and based m the yield on s.Treas eylwaIIn,manrng ten
(10)years thersfr trading closest to pa es published on tie
t Blomberg Screen
I
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r.
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•
i7
DEPOSIT: Borrowaa shall remit enoo-tefumdable deposit of 1%less the$25,000
fee that accompanied thelaoposnL This deposit is Intended to
reimburse Lender for all closing coats incurred In eomection with the
trmtsaetlon.If the deposit Is not sufficient to weer all of the closing
costa,Bonowa s shall remit any outstanding balance at closing. Any
remaining balance weal be applied to the Loan OriginationFee.If the
Loan does not close by law 25,2001,due to the Borrowers'delay,
inaction,or withdrawal of their request Sr the Loan,Lander shell be
. . entitled to retain any balance of the Deposit
LOAN ORIGINATION FEE: BORROWERS SHALL RENIT A NON-REFUNDABLE LOAN
ORIGINATION FEE OF 0.90%OF THE PRINCIPAL AMOUNI OF
THE LOAN, WHICH SHALL BE DUE UPON THE INITIAL
DISBURSEMENT OF LOAN PROCEEDS.
i
PRBPAYMENI: No prepayment will be allowed during the drat two years of the Loan
term.Thereafter,provided no default or event of defadt mists,the
Borrowers will be ptaed to prepay the Lean.in whole or in ptr4 by
paying,in addition to the atom=of any prepayment,a prep:o e
! i premium equal to the following
: i
Yen of Loan Percent of Principal Balance
' n 3 5%
i i 4 4%
5 3%
6 2%
Thereafter 154
Additionally, each prepayment shall be accompanied by en
administrative fee of 54,000.
1 : LATE CHARGE AND
DEFAULT DITEREST: A late payment charge of 5%of the payment will be assessed on
each payment received after its scheduled[hoe date.
' - Upon the occ uneice of and during the continuation of any event of
default,Lender shall have the right to biasese the intaeatrate to an
interest rate of 400 basis palate(i.e.,4%)over the rate bthawise
payable;provided that in no at shall Borrowers be obligated to pay a
rate or as amount greater than that allowed by applicable law.
D&T BUSINESS
-
VALUATION: D&T Business Valttari®Reports will be required far the financing of
the Sites;Lender shall advance a mmdmum of 70%of the value
i . 9 . assessed far the Sites. The D&T Business V al union Rep:eta must be
ordered,received and deemed sadthctay by Lender prior to closing of
t the proposed Loaf and disbaren cat of proceeds. The fee for the DST
: ) Business Valuation Reports will be paid to the Lander by Borrowers
upon acceptance of the Conmitmenc
. I
,_i
iI
4
i
h
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04/20/01 03:57 FAX 4053484248 ALACO FOODS RI 06
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ENVIRONMENTAL
REQUIREMENTS: Evidence in form and substance utLdacmry to Lender that all Skea are
free and deer of any environmental concerns Borrowers will complete
an Environmental Questionnaire regarding the Sites and Borroeen
shall execute Pavimnmeotal Warranty and Indemnification Ageeementa
acceptable to Lender. In addition,an AIG Policy will be reguirtd and
any costs associated therewith shall be paid by Borrowers at dosing.
The Sites shall meet or exceed all federal,state and local requirements
or regulations that are in effect and will meet or exceed all applicable
fine federal,state and local requirements or regulations aa they
become effective.
•
Borrowers will promptly take whatever action is necessary when en
environmental issue has arisen including the financial responsibility for
er91 niean-np protean
JUNIOR LIENS: No lime or encumbrancea am any Collateral will be permitted(except
those in favor of Lender)without Leader's price writs permission
(which permeston say be withheld for any ration).
B INDEPANIFICATIONS,
REPRIXO NTA21UN8
AND WARRANTIES The loan documents shall provide indemnifications, reprpanmions
and warranties usual and casmm ary for the type of transaction
contemplated by this Commitment.
C. COVENANTS — The loan docwnents shall provide covenants usual and customary for
the types of transactions a mtemplated hereby inducting,but not limited
to the following:
1. Borrowers(joittdy)shall maintain the following ratios,which shall
be tested on a semi-enterl basis,beginning with tic 6 month period
ending 12/31/01 and tztbc evidencedby a covenant compliance
statement in form sod substance satisfactory to Leader:
• Minimum Corporate Consolidated FCCR.of 1.25.
• Minimum Aggregate Unit PCCP.of 1.25(Sites 1 through 10 in
Exhibit A).
Mmims>m Corporate Consolidated FCCR shall be cleaned as(1)the
sum of net income,plus income tax expense,interest tncpetse,
depredation expense,amortization expense,rem expense end operating
lease expense(without duplicatlm)divided by(2)the nent of the
current portion of:mg term debt and capitalized leases,plum interest
expense,rent and operating lease expense(without duplication).all as
defined by GAAP.
Aggregate Unit FCCR shall be defined as(1)the Bran of aggregate store
• level net income,plus income tax expense,interest expense,
depreciation expense,amortization expense,rent expense and operating
lease expose(without duplication),pier corporate allocated apemen
less 3%of gas von margins end 3%of convenience store revenues,
divided by(2)the sum of the current portion of long term debt and
5
04/20/01 03:57 FAX 4053484248 ALACO FOODS V)07
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t1
i
i-I
capitalized leans,plus interest expense,rent and op
erating lease
expense(without duplication),all as defined by GAAP.
2.Borrowers(jointly)shall maintain a maximum Debt/EB1TDA ratio of
5.5 to 1 which shall be treed on a semi-antual basis,beginning with the
6 month period ending 12/31/01 and further evidenced by a consent
compliance statement in form and substance satisfactory to Leader.
This ratio will also be rated and evidenced by a compliance statement
at the time of any acquldtion by a Borrower or Borrowers'affiliates.
• EBITDA shall be defined as the sum of net income,plus income tax
expense,interest expense,depredation expense and amorti2Bdon
expense,all as defined by GAAP for the previous four calendar
• quartets. Debt shall be defined as the aggregate stated balance sheet
•
amount of all iudebtedncaa of Borrowers and their strbsidiaiea,
•
deteffiirtcd on a consolidated basis in.accordance with GAAP.
Indebtedness shall ittehrele,but not be limited to,both sheet sod long
term debt and capitalized leases inetudmg senior tam loans,
subordinated loans,aleflaneback transactions and amounts
outstanding cm revolving lines of credit
%d
i 3. CPA audited profit and lose statement and balance sheet of
Borrowers prepared in accordance with GAAP must be delivered
to Leader within 120 days after the end of each fiscal year further,
corporate tax rattans shall be provided to Lender within the re
i_I timeframe.
i
-I 4. Interim quarterly consolidated financial natemema prepared in
accordance with CiaAP must be delivered to Lender within 30 days
• of the last day of each quartey period.In addition,management.
prepared and certified combined and emir-level statements will be
provided on all stares provided as collateral on a quarterly basis
Li
5. Management fees,shareholder loans(if permitted)and
subordinated debt shall be subordinate to the Loan. Inter-company
agreements shall be on terms and conditions that are comparable to
arms-length transactions with unrelated third parties. Changes in
key internal agreements,including the fuel supply agreement and
management contracts,shall regime Lender's prior written consent
6. Borrowers will
prepare and provide to Lender,withla 90 drys ever
the end of each semi-anal period beginning lime 30,2001, a
compliance certificate in form and substance satisfactory to Leda.
i 7. No sales,leases or other transfers of any part of the Collateral
without the prior written consent of Lender.
;-
8. No change of control or dissolution of either Borrower without the
prior written consent of Lender.
IA
c.,
8. No change of owns nhip of either Borrower without the prior
wceen consent of Leader
•
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04/20/01 03:57 FAX 4053484248 ALACO FOODS 08
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D CONDITIONS TO CLOSING
DOCUMENTATION: Documentation in the form and ud"tce acceptable to Linda will be
required
FUNDING Ftmding will take place upon I-endues confirmation of compliance with
all terms and conditions ofthis Commitment.
COSTS: fit L Borrowers shall reimburse I cinder for all out of pocket and
fees incurred which are necessary to close the transaction and perfect
L k2',/ Lender's liens stonityintaat%including,bun not limited to.UCC
X/, samba,inspedians, title ins raoce,recording u,rum mortgage mere,
41/4 S surveys,inspection reports and legal fees,whether a not the Loan is
closed.
AUTOMATIC DEBITS: Borrowers shall be required to make Loan payments via automatic
electronic transfers from the Hammers'designated checking account.
SURVEYS: Borrowers will deliver a survey of each Site,in form and substance
acceptable to Leader,showing all improvements thereon and all
easements and other restriction,affecting the property with ALTA
certification is favor of Lender and title insurer.
TITLE INSURANCE' A title insurance policy issued by a title copy approved by Loader,
including deletion-of all exceptions requested by Lender, covering all
Sites.
RISK INSURANCE: The Empowers shall finish to Lander evidence of such fire,hazard,
special hazard,flood,general liability and any other insurance coverage
as Lender may tegtthe on the CallataaL Leader shall be named as
mortgagee,less payee aod/ar additional maned,as applicable. The
minimum amounts of said insurance shall be in.the mamma of the Loan,
unless specified otherwise by Leader. Such imarmee to be in form and
substance acceptable to Leader.
ATTORNEY'S OPINION
ATE Borrowers'counsel shall provide at closing an opinion of cobesel,in
farm and substance acceptable to Lender.
EVIDENCE OF
AUTHORIZATION: Borrowers shall provide evidmee atitfaneay to IN Larder that the
Borrowers have taken all necessary shareholder,company and other
action to authorize the transaction contemplated herein. AM connects
and approvals shall have been obtained_
NO ADVERSE CHANGE: i' Lender has issued this Commitment in reliance of the continuation of
the present management,ownaatdp and financial condition of the
Ha:rowers. Accordingly,should any actual a threatened adverse
change,financial or otherwise,affect the Borrowers or my Collateral,
Lender shall have the right to withdraw this Commitment and shall have
no further obligation to Borrowers to make any loan,or otherwise. The
7
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04/20/01 03:57 FAX 4053484248 ALACO FOODS 109
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determination of adverse change shall be made bit the sole and absolute
discretion of Lender. Additionally, if Borrowers are considered to be in
default by Lander or any of Lender's affiliates under any agreement or
other obligation now or hereeRer in effect,Lender acorn be tmdor no
obligation to extend the credit contemplated be:aln
Further,Lender's obligation to find the Loan is expressly subject to
that not having occurred at any time prior to the funding of the Loan
any adverse change in,deterioration o4 or any occurrence which may
adversely affect domestic or International fman ial,litquidity,barking,
capital of syndication markets,or the Lender's availability or access
thereto,either generally,or specifically with respect to the loan.
tranaactioa described herein,which,in the sole judgment of the Lander,
would adversely affect any of the parties to the transaction described
it herein or the t mactioa itself
In addition,if any of the foregoing adverse changes oeax,Lando.a its
optiam,Anil ban the right,but not the obligahm,to modify the
pricing,settee err to ns afthe Loan if the Lender determines that
such changes ere advisable in order to fimd the Loam In the avem that
the Barmen do not consent to such modification either the Lender
or the Borrowers may terminate this Commitment,'Memnonthis
Commitment shall be of no father fare or effect(except that the
Borrower shall remain obligated to pay the fees, costs and out of
pocket expanses as stated baera which obligations shall survive in the
event this Cent is terminated for any reason).
TERM OF THE COMMITMENT: If this letter is not executed and returned by May 4,2001,this
Commitment shall be null and void Upon receipt of the Commitment
Fee and this executed later,this Commitment shall remain open until,
and must close by June 25,2001 whereupon this Committed shall
expire and become null and void. Borrowers may request In writing
one 60-day ertension of the dossing dare,which Leader in its sole
discretion may allow or disallow.
ASSIGNMENT (a)Denotes may only assign rights and obligations under the Loan
document.in whole and not in part,with Lender's prior written
consent to qualified assignee(s)and upon payment to talker nf en
amount equal to the Fearer of(i)1%of the then ounttsding principal
amens of Boaowera'Loan(s)or(ii)$3,000 together with closing watt
associated therewith.
(b)Borrowers acknowledge and agree that Lender may sell,assign or
transfer the Lean(s)and that all documentation,financial statements,
appraisals and other data,or copies thereof relevant to Boroowea,any
Guarantor or the Loan(s),as determined by Lender in its absolve and
sole discretion,and may be exhibited to and retained by any such
purchaser, assignee or transferee.
i 4
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• ^,1/20/01 03:57 FAX 4053484248 ALACO FOODS 2110
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CHOlC3i OF LAW; This Commitment shall be governed by the internal laws(as
WAIVER apposed to the conflicts of law provisions)and decisions of the Sant of
Connecticut Borrowers waive all rights to special,ioddaxttsl,partitive
or consequential damages that may be alleged to arise out of or relate to
this Commitment or any transaction cariC®plated bmetmder.
INDEMNIFICATION:IFICATION: Bo uwas agree to jointly and severalty ludemmfy arid bold Later and
in officers,employees,directors and agents hermits'against all clams,
damages,liabilities and expenses which may be asserted against Lands
or such pates in calrecdm with a arising out of any inveettgadoi
litigation or proceeding related to the transaction contemplated
•. haetmder.
SURVIVABILITY.. The teens and conditions of this Commitment shall&wive the dosing
of the Loan,and to the en any such terms and conditions conflict
with the Loan dosing documents,the terms end candidaea of the Loan
elaimg doetonetm shall caned.
By aeeepdngthe terms of this Commitment,Borrowers hereby represent and covenant that(a)all information(the
" that has been a will be made available to Lodes by Borrowers of arty of their repteamt etives is or
will be,when furnished,complete aid correct in all material respects and does not or will not,when fumbled.
t• canal any untrue statement of a material fast a omit to state a material fact necaseery in order to make the
stances caeained therein not mentally m&leading fa light of the circumstances under which such statemtmts are
. made and(b)the lavjedione that have Seas a will bemade available to Lender by Borrowers a any of their
repreaemetives have been or will be prepared in good faith baud upon reasonable art umpdons. Borrowers
understand that in arranging the Lola lender may re and rely on the Information and projections without
independent verification thereof.
This Commitment does not purport to summarize all the teens,conditions,covmuetts,representations,warranties
and other provisions which will be contained in definitive legal documeatetion for the financing contemplated
hereby. In all cases,the terms of such definitive legal doer neention will supersede the terms summarized herein.
This Commitment is solely fa the in of the Borrowers and,twiess Lender agrees in writing,it shall not be disclosed
to any person or entity nor affiliated with the Borrowen including,without imitation any other potential financing
sottrce
Any diaper between Lender aid Borrowers arising in connection with this Commitment shall be resolved by
•
arbitration tinder the roles of the American Arbitration Association as of the date hereof.
• We thank you for the opportunity to be of service. If the terms of die Commitmart ere acceptable,please evidence
p acceptance by signing below in the space indicated and returning the executed copy of this latter along with a check
in the amount of$74,500 payable to Shell Capital Inc,representing the remaining portion of the Deposit,to an
F Chanana,Shell Capital Commercial Finance,One Gleadimmng Plane,Westport,CT 06880,on or before 5:00pm
bJ CST,May 4,2001.
If you have any questions cmcarnng this Coaxmitmeot,please feel free to call=at 113-241-9189.
Sincerely,
is
Shell Capital Inc./
gBy 6 4�'v`"w'
. J.David Culbertson
Tit Via President
F
h
G
e
04/20/01 03:57 FAX 4053484248 ALACO FOODS ll1
04/20/01 15:32 FAX 1132418545 " Shell Capital ®all
Acknowledged and Accepted:
BORROWERS:
Pandian Investments,LLC
BY:
Name:
Mee:
Date:
Alpine Station,LLC
Nome:
Titter
Date•.
GUARANTORS:
Kenneth L.Knight
Deer
Kidd C.Kelley
Data:
•
Kayla B.Kdiea
Date:
S
Jim L.Davis
Date:
'I.
Catte Peaolet n Product;loc.
Date:
10
• 04/20/01 03:57 FAX 4053484248 ALACO FOODS a 12
04/20/01 15:32 FAX 7132418549 Shell Capital x012
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DILL, DILL, CARR, STONBRAKER UNION BANK&TRUST
& HUTCHINGS, P.C. DENVER,COLORADO 80203
455 SHERMAN,SUITE 300 23-90-1020 04/26/01
DENVER,COLORADO 80203 e
S
AY TO THE COLORADO DEPARTMENT OF REVENUE
IRDER OF $ *******$942.50 8
0
*NINE HUNDRED FORTY TWO AND 50/100 DOLLARS* DOLLARS
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COLORADO DEPARTMENT OF REVENUE
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AEMO For: alpis.001 �.(....► L: '/ • .i 1
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DIL//LbD1.LLCARRSTONBRAKER& HUTCHINGS STONBRAKER & HUTCHINGS
A PROFESSIONAL CORPORATION ,PROFESSIONAL CORPORATION
ATTORNEYS AT LAW ATTORNEYS AT LAW
BRENDA J. ROWE Fay M.Matsukage"
PARALEGAL Felicity Rossi
Adam P.Stapen
Jon Stonbraker
955 SHERMAN STREET, SUITE 300 / DENVER, COLORADO 80203 Craig A.Stoner
FIRM: 303-777-3737 / DIRECT: 303-282-4135 / FAX 303-777-3823 Patrick D.Tooley
EMAIL:browe@dillanddill.com Leslie Block Kaye'
of Counsel
E-Mail: BROWE@DILLANDDILL.COM •Also licensed in Arizona and New York
v.Also licensed in Nevada
May 9, 2001
Ms. Ester Gesick VIA FEDERAL EXPRESS
Weld County Offices
915 10th Street
Greeley, CO 80632
RE: ALPINE STATION, LLC, d/b/a, CONOCO FOOD STORES
3851 Highway 119; Weld County, Colorado
Transfer of Ownership / Retail 3.2% Beer Off Premises Licese
Dear Ester:
On behalf of our client, find enclosed a transfer of ownership application with the
following documents [Note: This is a master file client]:
• Checks/Application &License Fees, Temporary Permit & Occupation Tax
• $500.00 County Application Fee
• $ 7.50 County License Fee
• $100.00 County / Temporary Permit Fee
• $942.50 Colo Dept of Revenue Application & License Fees
• DR 8404 Colorado FMB Retail License Application w/Attachment
• Letter requesting temporary permit
• Lease*
• Sales Agreement*
• Partial Assignment Assumption of Sales Agreement*
• Articles of Organization [date-stamped]
• Certificate of Good Standing
• Operating Agreement*
• State Master File letter
2001-1351
455 SHERMAN STREET,SUITE 300/DENVER,COLORADO 80203/FAX(303)777-3823/(303)777-3737
E-mail:dillndill@aol.com
Ms. Ester Gesick
May 9, 2001
Page 2
• Copy of individual history record—Kenneth Knight
• Copy of individual history record—K. C. Kelley
• Copy of individual history record—Jim Davis
• Copy of individual history record—Kevin Kalies
• Loan document*
• Floor plan
[*NOTE: Draft copies provided; executed copies will be provided after closing.]
Please call if you have any questions. Please keep me advised on the status of the
temporary permit request and this transfer application.
Respectfully,
Brenda J. R we
Paralegal
/bjr
Enclosures [listed above]
I ESTHER Gesick- Re: Alpine Station, LLC, d/b/a, Conoco Food Stores;3851Highway119 Page 1 1
From: "Brenda Rowe" <browe@dillanddill.com>
To: <EGESICK@co.weld.co.us>
Date: 6/5/01 1:36PM
Subject: Re: Alpine Station, LLC, d/b/a, Conoco Food Stores;3851Highway119
Please send both the state and local licenses to me: Brenda Rowe, Dill & Dill, 455 Sherman Street,
#300, Denver, CO 80203. I will give them to the area manager who will deliver and hang the licenses in
the store. Thank you.
>>> "ESTHER Gesick" <EGESICK@co.weld.co.us> 06/05/01 01:31PM >>>
I received the license back from the State yesterday, so all we are waiting on is the signing of the
Resolution by the Commissioners some time tomorrow, and then I'll call to see if you want to have
someone pick it up, or have it mailed. FYI, we sent the old license to the previous owner by certified
mail on two separate occasions, and it was never properly delivered and was returned to us, so it may
not be a bad idea to have it picked up. Let me know what you would prefer. Thanks!
Esther Gesick
Deputy Clerk to the Board
>>> "Brenda Rowe" <browe@dillanddill.com> 06/05/01 11:35AM >>>
RE: Transfer of Ownership/ Retail 3.2% Beer Off Premise License
Just checking to see if this application has been sent to State. Please advise.
Thank you Esther.
Brenda J. Rowe, Paralegal
E-Mail: browe@dillanddill.com
Main Phone: (303)777-3737
Direct Phone: (303)282-4135
Fax: (303)777-3823
This e-mail message is for the sole use of the intended recipient(s) and may contain confidential and
privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are
not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original
message.
U.S. Postal Service
CERTIFIED MAIL RECEIPT
(Domestic Mail Only; No Insurance Coverage Provided)
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fl.l Postage $ / —
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CReturn Receipt Fee Here
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Total Postage&Fees $
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SENDER' COMPLETE THIS SEC LION COMPLETE THIS SECTION ON DELIVERY
■ Complete items 1,2,and 3.Also complete A. fved y(Plea a Print Clearly) R. Date of Delivery
item 4 if Restricted Delivery is desired.
• Print your name and address on the reverse
so that we can return the card to you. C. Signature
• Attach this card to the back of the mailpiece,
or on the front if space permits. X /v Y ,.,= - Addressee
D. Is delivery address different from iteM 1? O Yes
1. Article Addressed to: If YES,enter delive iyad ab w: ❑ No
Brenda-. tou)e-
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❑ Registered Return Receipt for Merchandise
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2. Article Number(Copy from service label)
WOO 65(90 ,Aoki' 63/07 zS
PS Form 3811,July 1999 Domestic Return Receipt 102595-00-M-0952
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