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Home My WebLink About992498.tiffRESOLUTION RE: APPROVE CHANGE OF OWNERSHIP REQUEST FOR 3.2% BEER LICENSE FROM CONO SERVICES, INC., DBA CONOCO #06355 TO PYNERGY, LLC, DBA CONOCO 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, Pynergy, LLC, dba Conoco, has presented to the Board of County Commissioners of Weld County, Colorado, an application for a Change 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 #06355, 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 Change 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: 12354 Weld County Road 2, Brighton, Colorado 80601 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 99-09 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 November 8, 2000, 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. pc; 50, PynerR% 992498 LC0011 CHANGE OWNERSHIP OF 3.2% BEER LICENSE - CONOCO PAGE 2 The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 13th day of October, A.D., 1999. BOARD OF COUNTY COMMISSIONERS COUNTY, CO ORADO ATTEST: Weld County Clerk to the BY a Y Deputy Clerk to the Boa APPROVED AS TO FORM: County Attorney ale K. Hall, Chair enn Vaad 992498 LC0011 THIS LICENSE MUST BE POSTED IN PUBLIC VIEW DR 8402 C` (021991 STATE OF COLORADO DEPARTMENT OF REVENUE Liquor Enforcement Division 1 375 Sherman Street Denver, Colorado 80261 1 ALCOHOL PYNERGY, LLC CONOCO 12354 WELD COUNTY RD 2 BRIGHTON CO 80601 BEVERAGE LICENSE Account Number Liability Information AT MIDNIGHT County City Indust. Type Liability Datel LICENSE EXPIRES 40-14732-0002 03 206 5541 B 110999 NOV 08, 2000 Type Name and Description o5 License I Fee 2122 2190 3.2 PERCENT BEER RETAIL LICENSE (OFF PREMISES) COUNTY 85 PERCENT OAP FEE $ 50.00 $ 42.50 TOTAL FEEISI This license is issued subject to the laws of the State of Colorado and especially provision of Title 12, Articles 46 or 47, CRS 1973, as amended. nontransferable and shall be conspicuously posted in the place above described. only valid through the expiration date shown above. Questions concerning be addressed to the the of Revenue, Liquor Enforcement Division, 1375 Sherman Street, Denver, CO 80261. In testimony whereof, I have hereunto set my hand.. $ 92.50 under the This license is This license is this license should Executive Director Cl) DR 8404 (07/97) Page 1 21 COLORADO DEPARTMENT OF REVENUE LIQUOR ENFORCEMENT DIVISION COLORADO LIQUOR 1375 SHERMAN STREET OR 3.2% FERMENTED MALT BEVERAGE DENVER CO 80261 RETAIL LICENSE APPLICATION DO NOT WRITE IN THIS SPACE ■ NEW LICENSE g TRANSFER OF OWNERSHIP ❑ LICENSE RENEWAL • ALL ANSWERS MUST BE PRINTED IN BLACK INK OR TYPEWRITTEN • APPLICANT MUST CHECK THE APPROPRIATE BOX(ES) • LOCAL LICENSE FEE $ • APPLICANT SHOULD OBTAIN A COPY OF THE COLORADO LIQUOR AND BEER CODE (Call 303.321.4164) 1. Applicant is applying as a ❑ Corporation ❑ Partnership (includes Limited Liability and Husband and Wife Partnerships) ❑ Fl ❑ Individual Limited Liability Company Association or Other 2. Name of Applicant(s) If partnership, list partners' names (at least two); if corporation, name of corporation 'RI0 c Q 1 I �. L -t.-- 2a.Trade Name Rif Estarlisllment (DBA) (.' oLno L.. 0 State Sales Tax No. 1,`A)/ y3aL Business Telephone 72b g3& -5523 3. Address of Premises (specify exact location of premises / a35 W tAkId Coup•1y 2c.4c�/ a City train-Ec4 County UpLlc,l State CO ZIP Code Bo690 / 4. Mailing Address (Number and Street) /Soo -c ydc.„ 54 Cil or Town Ofiii ilf State C O ZIP Code $6, .Z_ C 5. If the premises currently have a liquor or beer license, you MUST answer the following questions: Present T ade Name of Establishment (DBA) COVIo ea L7lq355 Present State License No. a/-35!/ 6, -as/ Present Class of License • Z% Prese Expiration Date th q75? , • SEC IONA APPLICATION,FEES? LIAB t SECTION D LIQUOR LICENSE FEES 2350 2300 2300 2310' ■ Late Renewal Application Fee $500.00 ■ Application Fee for New License 650.00 • Application Fee -New License Concurrent Review 750.00 Q Application Fee for Transfer of Ownership 650.00 1940.1 1gg0 19501 =.1950 1960 1960 1970' 1990: 1990' 2010 2020 -:: 2040 "taw 1975 ` ❑ Retail Liquor Store License (city) $202.50 ❑ Retail Liquor Store License (county) 287.50 Liquor Licensed Drugstore (city) 202.50 M Liquor Licensed Drugstore (county) 287.50 IN Beer & Wine License (city) 326.25 ❑ Beer & Wine License (county) 411.25 ■ H & R License ❑ city ■ county 475.00 ■ H & R License w/opt Prem ■ city ■ county 475.00 ■ Club License M city ❑ county 283.75 ❑ Tavern License • city ❑ county 475.00 • Arts License IN city ■ county 283.75 ■ Racetrack License illcity • county 475.00 ■ Optional Premises License ■ city • county 475.00 ■ Retail Gaming Tavern Lic [Jolty ❑ county 475.00 ❑ Brew -Pub License 725.00 ■ Other SECTION B 3.2% BEER LICENSE FEES 2121 2121 2122 2122 2123 2123 ❑ Retail 3.2% Beer On Premises - (city) $71.25 ❑ Retail 3.2% Beer On Premises - (county) 92.50 • Retail 3.2% Beer Off Premises - (city) 71.25 i Retail 3.2% Beer Off Premises - (county) 92.50 ❑ Retail 3.2% Beer On/Off Premises - (city) 71.25 • Retail 3.2% Beer On/Off Premises - (county) 92.50 SECTION C RELATED FEES AND PERMITS2030 2210-100 (999) ❑ Retail Warehouse Storage Permit $75.00 1980-100 (999) M Addition of Optional Premises to existing hotel/restaurant $75.00 x Total Fee 1970-750 (999) • Manager's Registration (hotel & restaurant only) $75.00 No Fee • 3.2% Beer On/Off Premises Only Delivery Permit No Fee M Retail Liquor Store Delivery Permit DO NOT WRITE IN THIS SPACE - FOR DEPARTMENT OF REVENUE USE ONLY LIABILITY INFORMATION County City Industry Typs. License Issued Through (Expiration Date) License Account Number Liability Date: State -750 (999) City 2180-100 (999) ' .County 2190.100 (999) Managers Reg 1970-750 (999) A Casa Fund Now Lldn.. 2300-100 (999) c.Ih FPndrnn arlitea 231.100 (999) TOTAL A 992498 DR 8404 (07/97) Page 2 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. ITEMS SUBMITTED, PLEASE CHECK ALL APPROPRIATE BOXES COMPLETED OR DOCUMENTS SUBMITTED I. APPLICANT INFORMATION • A. Applicant/Licensee identified. ❑ B. State sales tax license number listed or applied for at time of application. • C. License type or other transaction identified. ❑ D. Retum original & 2 copies to local authority. ❑ E. Additional information may be required by the local licensing authority. II. DIAGRAM OF THE PREMISES ❑ A. No larger than 8 1/2" X 11". ❑ 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) ❑ B. Lease in the name of the Applicant ONLY. ❑ 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 ❑ A. Individual History Record(s) (Form DR 8404-I). B. 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) • A. Certificate of Incorporation (and/or) B. Certificate of Good Standing if incorporated more than 2 years ago. • C. Certificate of Authorization if foreign corporation. ❑ 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) ❑ A. Copy of articles of organization (date stamped by Colorado Secretary of State's Office). • B. Copy of operating agreement. ❑ C. Certificate of Authority (if foreign company). VIII. MANAGER REGISTRATION FOR HOTEL AND RESTAURANT LICENSES WHEN INCLUDED WITH THIS APPLICATION ❑ A. $75.00 fee. • B. Individual History Record (DR 8404-I). DR 8404 (07/97) 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 holders or directors if a corporation) or manager under the age of twenty-one years? No ❑ E 7. Has the applicant (including any of the partners, if a partnership; members or manager if a limited liability company; stockholders or directors if a corporation) or manager ever (in Colorado or any other state); (a) been denied an alcoholic beverage license? (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. or officers, ❑kin II ii �.� Sa. 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. 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. ❑ 7 ❑ R 9. Are the premises to be licensed within 500 feet of any public or private school that meets compulsory education requirements of Colorado law, or the principal campus of any college, university or seminary? ❑ a 10. Has a liquor or beer license ever been issued to the applicant (including any of the partners, if a partnership; members limited liability company; or officers, stockholders or directors if a corporation)? If yes, identify the name of the business current financial interest in said business including any loans to or from a licensee. or manager if a and list any U ❑ 11. a. Attach and Does the Applicant, as listed on line 2 of this application, this license will be issued by virtue of ownership, lease N Ownership ❑ Lease ❑ Other (Explain in If leased, list name of landlord and tenant, and date of have legal possession of the premises for at least 1 year from the date that or other arrangement? Detail) a ❑ expiration, EXACTLY as they appear on the lease: Landlord Tenant Expires a diagram and outline the area to be licensed (including dimensions) which shows the bars, brewery, walls, partitions, entrances, exits 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 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.) wilt 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 A local ordinance or resolution authorizing optional Number of separate Optional Premises areas requested with Optional Premises premises has been adopted. Yes No IN ❑ 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 Yes No Pharmacy? COPY MUST BE ATTACHED. ❑ ❑ 15. Club Liquor License applicants answer the following (a) Is the applicant organization operated solely not for pecuniary gain? (b) Is the applicant organization a regularly operated solely for the object of a patriotic (c) How long has the club been incorporated? (Three years required) and attach: for a national, social, fraternal, patriotic, political or athletic purpose chartered branch, lodge or chapter of a national organization which or fraternal organization or society, but not for pecuniary gain? (d) How long has applicant occupied the premises to be licensed as a club? (Three years required) and is ❑ ❑ El 16. Brew -Pub License Applicants answer the following: (a) Has the applicant received or applied for a Federal Brewers Notice? (Copy of notice or application must be attached) ❑ U 17a. 17b. Name of Manager 9e (If this is an application for a Hotel - Date of Birth I Hotel & Resit-. Yes L._ i Lic. No and Restaurant License, the manager must also submit an Individual History Record (DR 8404-I). Does this manager act as the manager of, or have a financial interest in, any other liquor licensed establishment in the State of Colorado? If yes, provide name, type of license and account number. ❑ • Yes No ❑ ❑ 18. Tax Distraint Information. Does the applicant or any other person listed on this application and including its partners, officers, Yes directors, stockholders, members (LLC) or managing members (LLC) and any other persons with a l0%or greater financial interest in the applicant currently have an outstanding tax distraint issued to them by the Colorado Department of Revenue? If yes, provide an explanation and include copies of any payment agreements. No ❑ pri DR 8404 (07/97) 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 OF BIRTH POSITION % OWNED rid 0itus C1'0'6644(4/ 41(SC S., L'1to,.fAC o PPi r,h rlu'`r✓ C3 „65194, ' 70 Additional Documents to be submitted ❑ CORPORATION ❑ Cert. by type of Incorp. Agreement of entity ❑ Cert. of (General of Organization agreements Good Standing (if more than 2 yrs. old) ❑ Cert. of Auth. (if a foreign corp.) partnership (no written agreement) company) 'I Operating Agrmt. the parties In PARTNERSHIP U Partnership or Limited) I♦ Husband and Wife S. LIMITED LIABILITY COMPANY ❑ ASSOCIATION OR OTHER El. Articles II Cert. of Authority (if foreign Attach copy of creating association or relationship between Registered Agent (if applicable) Address for Service , :., 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. thorized Si r I Title v,+-4- C--- _ ' e a-1dt Date cl-719 c, EPORT AND APPROVAL OF LOCAL LICENSING AUTHORITY (CITY/COUNTY) Date application filed with local authority i Date of local authority hearing (for new license applicants; cannot be less Ithan 30 days from date of application 12-47-311 (1)) C.R.S. IC; - C?LI -c19 Each person required to file DR 8404-I: a. Has been fingerprinted b. Background investigation and NCIC and CCIC check for c. The liquor licensed premises is ready for occupancy and If "no', the building will be completed and ready for inspection outstanding warrants conducted has been inspected by the Local Licensing Authority. by Yes No L J ET C _ ;date) 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 rticle 46 or 47, C.R.S. THEREFORE, THIS APPLICATION IS APPROVED, — Local Licensing Authority for Weld •t;.nt �� ,_ / i Telephone Number I (970)356-4000 I TOWN, CITY COUNTY C„�≥<d�o O Signature + *�► . f�i'' �; TM (. .!�_.�� :• .•:. r, Weld County Board of loners Date 10/13/99 Signatur ttest) �?I�"'', ' ��w/: ,/!". Title •�r'c. ,( D e . -�c.+ _� rty Clerk to the Board Date 10/13/99 If premises are located within a to of the board of county commissioners then such approval should be given by such official. v royal should be signed by the mayor and clerk, if in a county, then by the chairman e board. If, by ordinance or otherwise, the local licensing authority is some other official, SINIMOO da�0o' 2000 U r PUMP ' PQk4P L AND 0 WELD coLuci RDrw U.S. Highway 85 I r •iII 11°1°Hi li l 0 I o o l I 6 I I y l 10 I H 0110 I Z pony ftiunoo Np N s f � m0 Z , Po 00 m CO n m oII°ll _,T P • SALES AGREEMENT (Improved Land) Earnest Money PART I SPECIAL TERMS THIS AGREEMENT made and entered into this ( day of , 1999, by and between KAYO OIL COMPANY, a Delaware corporation, and CONOCO INC., aware corporation (collectively "Seller"), and PYNERGY, LLC, a Colorado limited liability company ("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 three fee 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 (collectively with the Equipment, the "Property" or "Properties"), together with all equipment listed on Exhibit "C" ("Equipment") and inventories, except the equipment shown as deleted from Exhibit "C." SECTION 1 SALES PRICE The sales price ("Sales Price") of the Property or Properties shall be One Million Five Hundred Fifty Seven Thousand Dollars ($1,557,000), payable as follows: Earnest Money $5,000 payable into escrow with the Title Company within five (5) days from date hereof. Balance $1,552,000 payable on the Closing Date. SECTION 2 ALLOCATION OF SALES PRICE The value to be allocated to land, building, and Equipment has been negotiated by the pbrties 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: August 31, 1999 Place: Title Company or such other date and place as may be mutually agreed upon by the parties ("Closing Date"). SECTION 5 TITLE COMPANY Name: Title Services Inc. Address: 6061 S. Willow Drive, Suite 150 Englewood, CO 80111 Attention: Cathy Coca Telephone: (303)779-9555 Facsimile: (303)779-0761 REALESTPMG-SA - CONOCO SELLER August 4. 1999 Store # 6318 - 8170 W. 80" Ave.. Arvada Stare #6326 - 3434 W. Alameda. Denver. Store # 6355 - 12354 Weld Co. Rd.. Bngnton SECTION 6 NOTICES Notices shall be sent by overnight express mail, certified mail, facsimile 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: Conoco Inc. 6855 S. Havanna, Suite 610 Englewood, Colorado 80112 Attn: R. D. Amen Tel: (303)649-4044 Fax: (303) 649-4020 To Buyer: Pynergy, LLC 1500 Leyden Street Denver, Colorado 80220 Attn: Darrell Jackson Tel: Fax: SECTION 7 CONTAMINATION CRITERIA Subject to Part II, Section 4, all soil and/or groundwater shall satisfy the criteria set forth below: 7.01 Soil Contamination - The measured concentration of the soil underlying the property shall not exceed 20 milligrams per kilogram (mg/kg) Total Petroleum Hydrocarbons inclusive of TVH, TEH and/or oil and grease and 5 milligrams per kilogram (mg/kg) Total BTEX. 7.02 Groundwater Contamination - The measured concentration of motor fuel constituent listed below shall not exceed the level listed for that constituent in the groundwater underlying the property. a) b) c) Benzene shall not exceed 5 micrograms per liter (ppb) Ethylbenzene shall not exceed 680 micrograms per liter (ppb). Toluene shall not exceed 1,000 micrograms per liter (ppb). SECTION 8 TAX DEFERRED EXCHANGE 8.01 Seller and Buyer hereby agree that Seller, in lieu of the sale of the Properties to Buyer for the cash consideration provided herein, shall have the right at any time prior to Closing to assign all or a portion of its rights under this Agreement to a qualified intermediary in order to accomplish the transaction in a manner that will comply, either in whole or in part, with the requirements of a like -kind exchange pursuant to Section 1031 of the Internal Revenue Code of 1986, as amended, (the "Code"). In the event Seller assigns its rights under this Agreement, Seller agrees to notify Buyer in writing of such assignment at or before Closing. If Seller assigns its rights under this Agreement, Buyer agrees to (i) acknowledge receipt of Seller's notification of Seller's assignment of its rights in this Agreement in form attached hereto as Schedule I, and (ii) direct the Title Company to deposit the escrow Earnest Money and the balance of the Sales Price with the qualified escrow or qualified trust account at Closing. 8.02 So long as Buyer is not required to hold title to a separate parcel of property or incur any additional obligations, fees, expenses, or liabilities, and so long as all obligations to Buyer hereunder are met by Seller (including, without limitation, all financing obligations and environmental remediation and indemnity agreements), Buyer shall cooperate with Seller so that Seller may structure Buyer's proposed purchase of the Property in connection with a like -kind exchange under the Code, including (a) the substitution of a qualified intermediary for Seller; (b) Seller's assignment of its rights under this Agreement to the qualified intermediary; (c) Buyer's payment of the Sales Price (or whatever portion thereof as may be directed by Seller) through the qualified intermediary; and (d) Buyer's taking other appropriate, reasonable actions executing documents. 2 REALESTPMG-SA - CONOCO SELLER August 4. 1999 Store # 6318 — 81➢0 W. 80th Ave.. Arvada Store #6326 - 3434 W. Alameda, Denver. Store # 6355 - 12359 Weld Co. Rd., Brighton SECTION 9 ... ADDITIONAL SPECIAL PROVISIONS 9.01 Buyer may terminate this Agreement if Buyer is unable to obtain financing suitable to Buyer. In the event of a termination pursuant to this paragraph, Seller will refund Buyer's earnest money. 9.02 If Buyer does not use the Seller's S.T.A.R.T. loan program, Buyer will grant Seller the right of first refusal to repurchase the Property if Buyer sells it within ten (10) years of the Closing Date. The form of the Right of First Refusal is attached hereto and made a part hereof as Exhibit A-1. 9.03 Buyer agrees to keep the Properties branded Conoco for a period of ten (10) years from the Closing Date. If Buyer does not keep the Properties branded Conoco for a period of ten (10) years, then Seller has the right to repurchase the Property at the original Sales Price pursuant to an agreement to repurchase the Property in the form attached hereto and made a part hereof as Exhibit A-2. 9.04 Buyer and Seller must have executed a Petroleum Marketer Agreement prior to the Closing Date. 9.05 Buyer may terminate this Agreement on or before August 20, 1999, by giving written notice to Seller. Seller will refund Buyer's Earnest Money if Seller terminates this Agreement pursuant to this Part I, Section 9.05. IN WITNESS WHEREOF the parties hereto have fully executed this Agreement in triplicate, the date first above written. CONOCO INC. By: Printed Signature: . ErSowls Seller Title: Branded Marketing Manager Tax Identification Number: 73-0196000 REALESTWMG-SA — CONOCO SELLER August 4, 1999 Store # 6318— 8110 W. 80" Ave.. Arvada Store #6326 - 3434 W. Alameda, Denver. Store # 5355. 12354 Weld Co. Rd.. Brighton 3 PYNERNGY, LLC By: ! 1 ) s, Printed Signature: ` , Ede. ( Buyer Title: /'!,47 '4Q 57, Tax Identification Number: PART II GENERAL TERMS AND CONDITIONS FOR REAL ESTATE PURCHASES SECTION 1 TITLE PROCEDURES 1.01 Seller shall, within five (5) 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 title insurance insuring against title defects of the Property or Properties ("Title Commitment") together with copies of all underlying exception documents. Seller will pay one-half of any additional endorsements elected by Buyer. (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 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 free from liens or claims of others and 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 list of any leases and operating agreements that pertain to the Property or Properties which Seller expects Buyer to assume on the Closing Date. 1.02 Buyer shall have five (5) 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 or otherwise acceptable to Buyer, Buyer shall notify Seller in writing of the exceptions in the Title Commitment which render title to or interest in the Property unmarketable or unacceptable, and Seller, at Seller's cost, shall have ten (10) days thereafter in which to attempt to cure same. If Seller does not cure the defect giving rise to such exception within such period of ten (10) days, then Buyer shall have the rights set forth herein in paragraph 7.03. 1.03 Buyer shall also have a reasonable time, not to exceed twenty (20) 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 ten (10) days from date of notification in which to cure said defects. Seller warrants that the Equipment is free and clear of any liens. 1.04 The cost of any owner's 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 4 REALEST11MG-SA - CONOCO SELLER August 4. 1999 Store # 6318 —8170 W. 80" Ave.. Arvada Store #6326 - 3434 W. Alameda. Denver, Store # 5355 - 12354 Weld Co. Rd.. Brighton required for the operation of the business it desires to operate on the Property or Properties. Seller shall provide a list of all licenses and permits necessary to operate the Properties. 1.06 Buyer shall have access to the Property or Properties for purposes of performing due diligence and pre -closing surveys and tests ("Due Diligence"); 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. 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, 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: (i) 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; or (ii) mortgaged or pledged or subjected to lien, charge, or other encumbrance, 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 the 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 have been previously disclosed in writing to Buyer by Seller. 5 REALESTPMG-SA - CONOCO SELLER August 4. 1999 Store # 6318 - 8170 W. 60" Ave.. Arvada Store #6326 - 3434 W. Alameda. Denver. Store # 6355 - 12354 Weld Co. Rd.. Brighton 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: (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 ninety (90) days from Seller's invoice, Buyer shall pay Seller for all gasoline and diesel fuel at a price equal to the Rack Price for 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. (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 ninety (90) days after date of Seller's invoice, Buyer shall pay for the Merchandise Inventory, excluding Miscellaneous Merchandise, computed at sixty-five percent (65%) 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 for 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 outlined in Part II, Section 3.04 above which is unfit for use or resale. 3.06 Seller shall notify all 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 to the Closing Date. All other proratable utility charges and contractual obligations assumed by Buyer (if any) shall be prorated as of the Closing Date. 3.07 Any and all trade names, trademarks, brand names, building and canopy fascia, price sign faces and numbers, 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. 6 REALESTPMG-SA - CONOCO SELLER August 4, 1999 Slate # 6318 — 8170 W. 80" Ave.. Arvada Stare #6326 • 3434 W. Alameda, Denver, Stare # 6355 - 12354 Wed Co. Rd.. Bnghton Seller shall be responsible for the de -identification of the Property or Properties, at its sole cost and expense. SECTION 4 ENVIRONMENTAL 4.01 Prior to 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. Seller shall also 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 Contamination Criteria. The cost of the Environmental Investigation will be paid by Seller. The results of such tests shall be final and binding upon the parties hereto. If Contamination is not detected in excess of the Contamination Criteria, the Property will be deemed to be free of contamination. 4.04 If, as a result of the Environmental Investigation, or other investigations, contamination exceeding the Contamination Criteria 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 "E." 4.05 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 to indemnify and hold harmless Seller, and any and all of Seller'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, 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 in connection with Buyer's ownership or operation of the Properties. Nothing herein shall be deemed to be an assumption of any claims or causes of action against Seller or the Properties arising prior to the Closing Date. 7 REALESTIPMG-SA - CONOCO SELLER August 4, 1999 Store # 6318 — 8170 W. 806 Ave., Arvada Store #6326 - 3434 W. Alameda. Denver. Store # 6355 - 12354 We'd Co. Rd.. Brighton 5.02 Seller agrees to indemnify and hold harmless Buyer, and any or all Buyer's members, 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 prior to the Closing Date to interview and offer employment to any or all Employees. 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 8 REALES IPMG-SA- CONOCO SELLER August 4, 1999 Store # 6318 —8170 W. 80" Ave.. Arvada Store #6326 - 3434 W. Alameda. Denver. Store # 5355 - 12354 Weld Co. Rd.. an9nlan Buyer is not willing to accept title to that part of the Property or Properties, together with the award paid or 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; (g) Buyer is unable to obtain acceptable financing under Section 9.01; or (h) Seller defaults in any obligation hereunder; or (i) Buyer terminates based on Buyer's Due Diligence as set forth in Section 1.06; Then, in the event that one or more of the above described conditions listed in any of the subparagraphs 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 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; or (iii) cancel as to only the unacceptable Property or Properties and allocate the Sales Price accordingly and proceed to Closing on acceptable Properties. 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. If Seller defaults hereunder, Seller shall reimburse Buyer for Buyer's reasonable expenses related to this Agreement. SECTION 8 TAXES 8.01 All real, personal, 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 expense 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. 9 REALESTWMG-SA — CONOCO SELLER August 4, 1999 Store # 5318 — 8170 W. 80" Ave.. Arvada Store #6326 - 3434 W. Alameda. Denver. Store # 6355 - 12354 Weld Co. Rd, Brighton 8.04 Any sales or use tax due with respect to the sale of the Equipment or inventories shall be paid by Buyer, provided however, 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. 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. 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, arbitration, 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 unless the parties agree to be bound by arbitration. 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 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. 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. 10 REALEST PMG-SA — CONOCO SELLER August 4, 1999 Store # 6318 — 8170 W. 801i Ave., Arvada Store #6326 - 3434 W. Alameda. Denver. Store # 6355 - 12354 Weld Co. Rd., Brighton LAND DESCRI All and of Lots to 6 EXCEPT the north 17 feet of Lots 1 to ALSO EXQ$PT the east 1.4 feet of Lot 6 AND Lots 49 'EXCEPT the Adams Park" City and Co .Containing SURVEYORS C I,..Theodore Registered on .July 19 best of 'fay shortages i ov'ar1-.:bping :'•,are, vi'ai 6 54 EXCEPT the east 1.4 feet of Lot .49 and ALSO th 92.97 feet of Lot 49 , Block 2 ivision y of•Denver, State of Colorado 749 square -feet or 0.82 acres • ... 'ICATION )8SI 8s�r Eer .. st¢+tha a"arvey xaa �h Etta ,_ bed: ioperty, thatrto the e •are,>n�� raarepanciesi',' con l�tts- ;.hereby: Cpiti,Ey..that. I„aiii-4: lorado mda a+of{ a ,grour ,,,f1 .,isi-Renc �fi"chm �14i Nii tip `on spa Or• fine � 8 Ce• •(E streets a�n -s`rYt . , -F, ..� ;��,,. s • a13C ubl cta3s 90.„ �i.II]dus Ito .e •.ropert yz'f�re fit^ tilities which•will serve the property a e" hown,• ;_. •th >.+cv- >s3L Aat€R'Sa�tc•epras de crbeti ave.;xr4r+^`y4ia r x rc.ts r • nta t, of the coFer ty of tx •/ -3 al ' � I �i �1 T- T 7� 1 . 1 f� a .tl^`rC ,, P. a f) 1 1',kr Y'R� 0" r, +e"t"Tj1 1,[ f 1)i it'll .. ,' � .l'v �.� .. .• �,^, �`.nl d``K Q:4�l.i �tiT r^'1yL r. ar N,. A PARCEL QF.tANDUYH`IW•hE ,$O`O�tE NAIK SECTI�If �1, TOWNSNIR • NORTH,:RANGE •48 WEST OF THE W+•T M k OFIWELD 1'STA1E, OF- COLORAOO, -MORE •PARIICUURLV DESCRIIjED 4O\?• .t '•• ; -.': BEGINNING AT. THE r ,COTtN['R 3 f' ItiASt�.(AAT` HE SOllTli HALF OF SAID SECTION„�114 NG' Of TTIE, RIGHL.OFr}WAY OF,. 8E UNION PACIFIC RAILROAD COr CE'(�E,*ESt I140.4,�'AIANG THESOUTH UNE OF; SAID SECTION 3i :NORTH ,,',0 0 FEET TC('A%PQINT•'ON'THE NORTH RIGHT.,OF WAYrUNE'�FLtt0UNTY ROMi MO _ 'BEJNG' THEYTRIIE POINT OF 'BEGINNING; (THENCE' NORTH %125:0 T c`IHEt1 •.,EST 158.s.FEET MORE OR LESS, TO APOINT' ON THE EMSt.RIGHT`'OI-W/SY:LTHE.tie U.S.?IDOHWAY NO. .. 85:- 'THENCE -SOUTHWESTERLY ALONG' WE ARC 'OF A CURVE TO; THE LEFT A DISTANCE OF 78.4 FEET, THE CHARD'OE WHICH -CURVE" BEARS -SOUTH • 12'33.. WEST.`A DISTANCE- OF.78.4 FEET AND THE RADIUS OF. SAID ARC IS 5805.0 FEET;THENCE SOUTH. 36'09'. EAST A DISTANCE OF -50.. FEET, MORE OR LESS TO A •POINT ONTHENORTH RIGHT OF -WAY: UNE OF SAID COUNTY ROAD; THENCE EAST 140 FEET; MORE OR LESS TO THE TRUE POINT OF BEGINNING. PARCEL CONTAINS (20,386 SQUARE FEET) 0.4680 ACRES. 'U h� .�` .l� �I. AS PROV1OED, wr i'Y: ....• CONDOMINIUM '•- MEADOw5-COMMERCIALCONDOMINIUAtS- ,'Y: ACCORDING. 10,7HE:DECLARATION FOR SUCH CONDOMINIUMS RECORDED . APRIL '.17,-1986 AT RECEPTION NO. 88039319 IN ,THE REAL PROPERTY RECORDS OF JEFFERSON .COUNTY: COLORADO, AND ACCORDING TO:THE CONDOMINIUM MAP FOR SUCH CONDOMINIUMS FILED IN SUCH RECORDS ON • APRIL 17, 1986 AT RECEPTION NO. 86039320.' - SURVEYED PARCEL CONTAINS. (25,588 SQUARE FEET) 03874 ACRES..,,` 6C.' -HrVCZd cc WARRANTY DEED THIS DEED, made this J3 day of /4-L , 1999, between CONOCO INC., a Delaware corporation of the City of Ho OstL on, County of Harris, and State of Texas, grantor, and PYNERGY, LLC, a Colorado limited liability company, whose legal address is 1500 Leyden Street, of the City of Denver, County of Denver, and State of Colorado, grantee: WITNESSETH, that the grantor for and in consideration of the sum of Ten and No/100 Dollars ($10.00), the receipt and sufficiency of which is hereby acknowledged, has granted, bargained, sold and conveyed, and by these presents does grant, bargain, sell, convey and confirm, unto the grantee, his heirs and assigns forever, all the real property together with improvements, if any, situate, lying and being in the County of Weld, and State of Colorado described as follows: See attached Exhibit A as known by street and number as: 12354 Weld Co. Rd., Brighton, Colorado assessor's schedule or parcel number: TOGETHER with all and singular the hereditaments and appurtenances thereto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, claim and demand whatsoever of the grantor, either in law or equity, of, in and to the above bargained premises, with the hereditaments and appurtenances. TO HAVE AND TO HOLD the said premises above bargained and described, with the appurtenances, unto the grantee, his heirs and assigns forever. And the grantor, for himself, his heirs, and personal representatives, does covenant, grant, bargain, and agree to and with the grantee, his heirs and assigns, that at the time of the ensealing and delivery of these presents, he is well seized of the premises above conveyed, has good, sure, perfect, absolute and indefeasible estate of inheritance, in law, in fee simple. and has good right, full power and lawful authority to grant, bargain, sell and convey the same in manner and form as aforesaid, and that the same are free and clear from all former and other grants, bargains, sales, liens, taxes, assessments, encumbrances and restrictions of whatever kind or nature soever, except easements, rights of way, all presently recorded instruments other than liens and conveyances that affect the property. The grantor shall and will WARRANT AND FOREVER DEFEND the above -bargained premises in the quiet and peaceable possession of the grantee, his heirs and assigns, against all and every person or persons lawfully claiming the whole or any part thereof. The singular number shall include the plural, the plural the singular, and the use of any gender shall be applicable to all genders. REALESTPYNERGV DEED- Weld Co Rd- Bnghton 12354 Weld Co. Rd.. Boonton Attest: IN WITNESS WHEREOF, the grantor has executed this deed on the date set forth above. CONOCO INC. By: aa STATE OF TEXAS COUNTY OF HARRIS X11 , Or ub o-\POq-q-•.O'': •c T'•. StAL 1920 NifittimpOw W. R. OVER Title: Attorney -in -Fact ti This instrument was acknowledged before me on the day o i� rAa ,J 1999, by W. R. Gover, Attorney -in -Fact of CONOCO INC., a Delaware cor oration, on behalf of said corporation. AFTER RECORDING. RETURN TO: Pynergy, LLC 1500 Leyden Street Denver, Colorado 80220 REALEST\PYNERGY DEED - We1C Co Rd - Brignton 12354 Weld Co. Rd., Brighton Notary Public, State of Texas l"/e €- '�aauwumn: F�'J� ;o° p1ANF�f', Notary's printed name .•••• o:CAR yQF� 1'. • --�a Notary's commission expri-es:w_ TEXPI' _ (RE s 'o ?S 200 /111ingt 1111O11n PREPARED IN THE LAW OFFICE OF: F. Edward Adams, Ill Conoco Inc. --Legal Department P. O. Box 4783, ML 2068 Houston, Texas 77210 EQUIPMENT BILL OF SALE KNOW ALL MEN BY THESE PRESENTS. that CONOCO INC.. a Delaware corporation. Seller, with a place of business at 600 North Dairy Ashford Road, Houston, Texas 77079 in consideration of Ten Dollars (510.00) payable by PYNERGY. LLC, a Colorado limited liability company, Buyer, with a place of business at 1 500 Leyden Street, Denver, Colorado 80220, receipt of which is hereby acknowledged, does by these presents sell, assign, convey, transfer, and deliver to said Buyer, all of the equipment of whatever nature located at 12354 Weld Co. Rd., Brighton, Colorado, as set forth in the attached Exhibit "A" (the "Equipment"). TO HAVE AND TO HOLD the same unto the said Buyer, and the heirs. executors, administrators, successors, and assigns of said Buyer forever. The said Seller warrants that (i) it owns the Equipment described above free and clear of all liens, claims, and encumbrances, (ii) it has the right to sell the Equipment and (iii) that it warrants title to the Equipment and will defend the same against the lawful claims of all persons whomsoever. Except as stated herein, there are no other warranties express or implied in this Bill of Sale. SELLER EXPRESSLY DISCLAIMS THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN WITNESS WI-I-REOF, Seller and Buyer have caused this instrument to be duly executed this /3 "day ofrt , 1999. CONOCO INC. Seller W. R. GOVER Title: Attorney -in -Fact REALESTPynergy - Eqummenl Bill of Sale W Alameda - Oenver UriG1° A.) Report date. 02/28/1999 Asset Balance - 01 Financial Conpanycod. 1500 Locatloa 1206355 Ass•tc1aaa 1002 Acquisitionyr 1989 Main number SNo. Cap.date Name 100/5891 0 10/01/1989 Land lAcquisitiooyr 1919 Aseetelaas 1002 Land -Marketing •• 10077484 0 09/01/1989 C -Store Equlp,Halk-In Cooler 11 -Door Cr-100 Acquisitionyr 1989 1007741/ 0 10077419 0 10077490 0 10077491 0 /0077492 0 10077493 0 10077494 0 10077497 0 1007744/ 0 10077499 0 10077500 0 10077501 0 10077502 0 10077503 0 10/01/1990 Piping 10/01/1990 Tank 10/01/1990 Tank 10/01/1990 Tank 10/01/1990 Environ Equip 10/01/1990 Tank, Guage System T1s 250 H/3 Probes 10/01/1990 Canopy, Lights 8 10/01/1990 Canopy 10/01/1990 Dispenser,A11230A 10/01/1990 Dispenser,A11210A 10/01/1990 Equip<52500,Security System .,/ _, _:, , D 5 13/1'!'ss, r,, r „4sy r----,—, 10/01/1990 C -Store Equip,Drink Dispenser -8 Head Acquisitionyr 1990• a 10077505 0 10077505 0 05/01/1995 C -Score Equip,Ice Maker BdQ692Ns 05/01/1995 C -Score Equip,Post Mix Acquisitionyr 1995• /0077508 0 10077509 0 /0077510 0 10077511 0 04/01/1998 Canopy,Conoco Red 04/01/1998 C -Store Equip,Conoco Red E-7',''799= r-toc_ Z_3 O9/91f1930 'Equipment eompucsitc,,Radiant 3,I Acquisitionyr 1998 • Assetclass 3302 7&E -Marketing •• 10077481 0 /0077482 0 10077483 0 09/01/1989 Building 09/01/1989 Drive,Concrete s/Island 09/01/1989 Drive,Asphalt s Acquisitionyr 1989• 10077485 0 10077486 0 10077487 0 1007.7495 0 10077496 0 10/01/1990 Drive 10/01/1990 Drive 10/01/1990 Landscaping 10/01/1990 Landscaping 10/01/1990 Building Acquisitionyr 1990 • 10077504 0 10/01/1991 Landscaping (Acquisitionyr 1991• ,•part date, 02/23/1999 Asset Balance - 01 Financial oap.nycod. 1500 Location 4206755 A...tcl... 1002 Acqul.lelonyr 1989 main number Sea. Cap.dace Name 10077507 0 0)/01/1999 Heating/Air Cond, Furnace Acquis&tionyr 1990 , A...tcla•. 7402 Building.-Sry St. .. Location .206755 „ Companycod. 1500 Conoco Inc .... INVENTORY BILL OF SALE KNOW ALL MEN BY THESE PRESENTS, that KAYO OIL COMPANY, a Delaware corporation, Seller, with a place of business at 600 North Dairy Ashford Road, Houston, Texas 77079, in consideration of Ten Dollars (S10.00) payable by PYNERGY, LLC, a Colorado limited liability company, Buyer, with a place of business at 1500 Leyden Street, Denver, Colorado 80220, receipt of which is hereby acknowledged, does by these presents sell, assign, convey, transfer, and deliver to said Buyer, all of the inventory of whatever nature located at 12354 Weld Co. Rd., Brighton, Colorado. TO HAVE AND TO HOLD the same unto the said Buyer, and the heirs, executors, administrators, successors, and assigns of said Buyer forever. The said Seller warrants that (i) it owns the Inventory described above free and clear of all liens, claims, and encumbrances, (ii) it has the right to sell the Inventory, (iii) the Inventory is in merchantable condition and (iv) that it warrants title to the Inventory andwill defend the same against the lawful claims of all persons whomsoever. Except as stated herein, there are no other warranties express or implied in this Bill of Sale. IN WITdESS WH REOF, Seller and Buyer have caused this instrument to be duly executed this fS day of , 1999. KAYO OIL COMPANY Seller W. R. COVER Title: President REALESTPYNERGY Inventory Bill of Sale - Weld Co Rd. Brighton 12354 Weld Co. Rd., Bnghlon, CO a.9oct dae., 02/29/1999 QrIGJ-ro,J Asset Balance - 01 Financial Coapaaycod• 1500 Loo atioa 4206755 A.a.tclaaa Ae=ui.ltioayr 1002 Main number SNo, 10015391 0 Acquisitianyr Assetclaas Cap.date Name 10/01/1989 Land 1989 1989 1002 Land-Xark.t lay 10077484 0 09/01/1989 C -Score Equlp,xalk-In Cooler 11 -Door Cr-100 Acquiaitlooyr 1989 10077488 0 100774/9 0 10077490 0 10077491 0 10077492 0 10077493 0 10077494 0 10077497 0 10077498 0 10077499 0 10077500 0 10077501 0 10077502 0 10077303 0 10/01/1990 Piping 10/01/1990 Tank 10/01/1990 Tank 10/01/1990 Tank 10/01/1990 Environ Equip 10/01/1990 Tank, Guage System Tls 250 W/3 Probes 10/01/1990 Canopy, Lights 8 10/01/1990 Canopy 10/01/1990 Dispenser,AI1230A 10/01/1990 Dispenser,A11230A 10/01/1990 Equip<52500,Security System 1Y/3.1_y71 3:j..,3 6 • .,/n• /e nnQ ,(1n 10/01/1990 C -Store Equip,Drink Dispenser -8 Head Acquiaitionyr 1990 10077505 0 (10077506 0 05/01/1995 C -Store Equip,Ice Maker Bd0692N9 05/01/1995 C -Store Equip.Posc Mix f Acgsisitionyr 1995 10077508 0 /0077509 0 10077510 0 10077511 0 04/01/1998 Canopy,Conoco Red 04/01/1998 C -Stare Equip, Conoco Red Aequisitioayr 1993 Asaetclaas 3302 Pc8-Xark.ting 10077481 0 100774.12 0 10077433 0 09/01/1989 Building 09/01/1989 Drive,Concrete s/Island 09/01/1989 Drive,Asphalt s AcquisItioayr 1989 10077485 0 10077486 0 10077187 0 10077495 0 10077196 0 10/01/1990 Drive 10/01/1990 Drive 10/01/1990 Landscaping 10/01/1990 Landscaping 10/01/1990 Building Acquisitionyr 1990 10077504 0 10/01/1991 Landscaping lAcquiaitioeyr 1991 A.pare aaa.i 02/28/1999 Caap.nyeod. Asaec Balance - 01 Financial 1500 6206]55 1002 rain number SNo.l Cap,date Name Location A...<a L a• ACQui.lclocyr 1989 10077507 0 Acqula it to nyr 03/01/1998 Neating/Air Cond, Furnace 1998 Asa. tot... Location 1602 Bulldlapa_Sry St. 6206155 Ccspaayced. 1500 Conoco Inc PROMISSORY NOTE (Fixed Rate Term Loan) $1,323,000.00 Atlanta, Georgia October 1, 1999 FOR VALUE RECEIVED, PYN.ERGY, LLC, a limited liability company organized in the State of Colorado (the "Borrower"), promises to pay to the order of SUNTRUST BANK, ATLANTA, a Georgia banking corporation (the "Bank"), in the manner set forth below, the principal sum of One Million Three Hundred Twenty -Three Thousand and no/100 Dollars ($1,323,000.00) or as much thereof as shall be advanced by Bank, with interest on the unpaid balance of such amount from the date of the loan ("Loan") evidenced hereby. This Note is subject to the terms and conditions of that certain Loan Agreement (as amended, restated or otherwise modified, the "Loan Agreement") dated as of the date hereof, by and between Borrower and Bank, and is secured by Deed of Trust and Security Agreements (collectively, as amended, restated or otherwise modified, the "Security Deed"), dated as of October 1, 1999, panting certain property more particularly described therein (the "Premises"), and by other security given or to be given to Bank as collateral for the Loan. This Note is repayable in full on the Maturity Date when the entire principal balance of this Note, together with all accrued and unpaid interest, shall mature and be then due and payable, unless sooner accelerated in accordance with the terms hereof In addition to principal, the Borrower agrees to pay interest, and this Note shall bear interest on the unpaid principal balance hereof, on an Actual/360 Day Basis, from the date hereof until payment in full, at the Fixed Rate commencing on the date of signing of this Note and continuing thereafter far the duration of the Loan Term. All determinations of interest made by the Bank shall, in the absence of demonstrable error, be binding and conclusive on the Borrower. For information purposes only, as of the date hereof the Treasury Rate is 5.90% per annum, thus producing an initial Fixed Rate under the Loan Agreement on such date expressed in simple interest terms of 9.54% per annum. In addition to principal and interest, the Borrower also agrees to pay all costs of collection, including, without limitation, actual attorneys' fees and disbursements incurred if the indebtedness evidenced hereby is collected by or through an attorney -at -law. The Borrower further agrees with the Bank as follows: SECTION 1. Definitions. Capitalized terms used in this Note and not otherwise defined herein shall have the meaning ascribed to them in the Loan Agreement: #547971 v - Prom Nam-SunTni3VPynergy (a) "Actual/360 Day Basis" means a method of computing interest on the basis of an assumed year of 360 days for the actual number of days elapsed, meaning that the interest accrued for each day will be computed by multiplying the interest rate applicable on that day by the unpaid principal balance on that day and dividing the result by 360. (b) "Borrower" has the meaning set forth in the first paragraph of the note. (c) "Business Day" means any day other than a Saturday, a Sunday or a day on which the Bank is closed for business. (d) "Closing Date" shall mean October 1, 1999. (e) "Default Rate" shall mean a rate of interest four percent (4.00%) per annum above the Fixed Rate otherwise in effect. (f) "Event of Default" shall have the meaning set forth in Section 6. An Event of Default "exists" if an Event of Default has occurred and is continuing. (g) "Fixed Rate" shall mean the Treasury Rate plus three and one-half percent (3.50%) per annum. (h) "Fixed Rate Determination Date" shall mean, with respect to any determination of the Fixed Rate or the Reinvestment Rate with respect to any calculation of the Prepayment Fee, the date which is three Business Days prior to the relevant Closing Date or prepayment date, as applicable. (1) "Guarantor" collectively, means Darrell Jackson, Kenneth Walker, Adolphus Crenshaw, Frank Fisher, and Glen Dilworth. (j) "Loan Term" shall mean a period of twelve (12) years. (k) "Maturity Date" shall mean the earlier of (a) November 1, 2011 or (b) such date that the Bank shall declare the principal and accrued interest on this Note immediately due and payable as provided for hereinafter. (1) "Note" means this Promissory Note, either as originally executed or as the same may be amended, supplemented or otherwise modified from time to time. (m) "Payment Date" shall have the meaning set forth in Section 2(a). (n) "Payment Period" means (i) the period commencing on the Closing Date and continuing until the first Payment Date, and (ii) thereafter the date commencing on the last day of the preceding Payment Period and continuing through the next Payment Date. -7- x547971 v - Prom Note-SunTnssvPmetgy (o) "Prepayment Fee" shall mean the excess, if any, of (a) the aggregate present value as of the Fined Rate Dete.,LLtnation Date relating to such prepayment, t, of each .dollar of principal being prepaid and the amount of Adjusted Interest that would have been payable in respect of such dollar if such prepayment had not been made, determined by discounting such amounts at a Reinvestment Rate from the respective dates on which such principal and interest would have been payable if such prepayment had not been made, over (b) 100% of the principal amount being prepaid on the Note. As used in this definition, "Adjusted Interest" shall mean the remaining amount of interest payable on the principal amount being prepaid through the Maturity Date, calculated at a rate equal to the Fixed Rate applicable to such Loan minus 3.00%. In no event shall the Prepayment Fee be less than $0. (p) "Reinvestment Rate" shall mean the Treasury Rate, as determined on the Fixed Rate Determination Date, plus one-half percent (0.50%). (q) "Treasury Rate" means, with respect to the Loan hereunder, the rate of interest reasonably determined by the Bank at 9:00 AM (Atlanta, Georgia time) (or as soon thereafter as practicable) on the Fixed Rate Determination Date to be the average (rounded upward to the nearest whole multiple of 1/100 of 1% per annum if such average is not such a multiple) of the consensus bid rate quoted by two major dealers of recognized standing of direct full faith and credit obligations of the United States of America (commonly known as "Treasury Securities") selected by the Bank for such purpose for such direct full faith and credit obligations of the United States of America having a maturity, in the case of the determination of the Fixed Rate, of ten (10) years and, in the case of the determination of the Reinvestment Rate in connection with any prepayment, the average life to maturity of the principal amount prepaid. SECTION 2. Payment Terms. (a) Unless sooner if the Bank declares the principal and accrued interest outstanding on the Loan to be immediately due and payable as provided hereinafter, Borrower agrees to repay the Loan in equal monthly payments of principal and interest totaling S15,460.64 per month. Such monthly payment is based on a twelve (12) year amortization. Payments shall be due on the first day of each calendar month (the "Payment Date"), commencing with the Payment Date which is more than 29 days after the Closing Date of the Loan. (b) The Borrower shall have the right to prepay the Loan in whole on any Payment Date upon at least two (2) Business Days' prior notice to the Bank; provided however that the prepayment shall be accompanied by accrued and unpaid interest on the amount prepaid plus the Prepayment Fee. (c) All payments of principal of, or interest on, the Note and all other sums due under the terms of the Loan shall be made in lawful currency of the United States in either immediately available funds or checks or money orders made payable to the Bank at its principal office in Atlanta, Georgia or such other address as may be provided by the Bank to the Borrower from time to time. Any payment received by the Bank after 11:00 a.m. (Atlanta, Georgia time) on a -3- 047971 v I - Prom Note-SunTrasNPynezgy Business Day (or at any time on a day that is not a Business Day) shall be deemed made by the Borrower and received by the Bank on the following Business Day. (d) All amounts payable by the Borrower to the Bank under this Note for which a payment date is expressly set forth herein or therein shall be payable on the specified due date without notice or demand by the Bank. All amounts payable by the Borrower to the Bank under this Note for which no Payment Date is expressly set forth herein or therein shall be payable ten (10) days after written demand by the Bank to the Borrower. The Bank may, at its option, send written notice or demand to the Borrower of amounts payable on a specified due date pursuant to this Note, but the failure to send such notice shall not affect or excuse the Borrower's obligation to make payment of the amounts due on the specified due date. (e) Payments that are due on a day that is not a Business Day shall be payable on the next succeeding Business Day, and any interest payable thereon shall be payable for such extended time at the specified rate. (f) The Borrower shall pay to the Bank a loan closing fee in the amount of one half of one percent (0.5%) of the Loan on the Closing Date (the "Loan Closing Fee"), provided however, that the Borrower shall not be required to pay the Loan Closing Fee if the Loan hereunder is converted from a loan previously made by the Bank to the Borrower pursuant to a Construction Loan Agreement between the Borrower and the Bank. The Loan Closing Fee shall be deducted from the Loan disbursed on the Closing Date. In addition, the Borrower shall be responsible for reimbursing the Bank for ail reasonable out-of-pocket expenses incurred by Bank in connection with the Loan, including, without limitation, reasonable attorneys' fees and out-of-pocket expenses, recording fees and recording or stamp taxes, and to the extent incurred on or prior to or foreseeable on the Closing Date, such expenses shall be deducted from the Loan disbursed on the Closing Date. SECTION 3. Increased Costs. In the event that any change in any applicable law, treaty or governmental regulation, or in the interpretation or application thereof; or compliance by the Bank with any guideline, request or directive (whether or not having the force of law) from any central bank or other U.S. or foreign financial, monetary or other governmental authority, shall: (a) subject the Bank to any tax of any kind whatsoever with respect to this Note or change the basis of taxation of payments to the Bank of principal, interest, fees or any other amount payable hereunder (except for changes in the rate of tax on the overall net income of the Bank); (b) impose, modify, or hold applicable any reserve, special deposit, assessment or similar requirement against assets held by, or deposits in or for the account of, advances or loans by, or other credit extended by or committed to be extended by any office of the Bank, including, without limitation, pursuant to Regulation D of the Board of Governors of the Federal Reserve System; or (c) impose on the Bank any other condition with respect to this Agreement or the Note; and the result of any of the foregoing is to increase the cost to the Bank of making or committing to make, renewing or maintaining the Loan, THEN, IN ANY CASE, upon demand by the Bank and delivery to the Borrower of a certificate explaining in reasonable detail such -4- #54797! v I - Prom .Note-SunTrustPynergy change in law, treaty, regulation, guideline, request, directive or interpretation thereof, its impact on the Bank and the basis for determining such increased costs, the Borrower shall pay within 30 days to the Bank, from time to time as specified by the Bank, such amounts as shall be sufficient to compensate the Bank for such increased cost. The Banks determination of costs incurred under this Section 3 shall be made in good faith and shall be conclusive absent manifest error provided such determination is communicated to Borrower at the time of demand. SECTION 4. Capital Adequacy. If, after the date of this Note, the Bank shall have determined that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Bank with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, relating generically to loans of the category applicable to the Loan, has or would have the effect of reducing the rate of return on the Bank's capital as a consequence of its obligations hereunder to a level below that which the Bank could have achieved but for such adoption, change or compliance (taking into consideration the Bank's policies with respect to capital adequacy) by an amount deemed by the Bank to be material, then the Bank shall notify the Borrower of such adoption, change or compliance as soon as possible after such change. The Borrower shall pay to the Bank such additional amount or amounts as will compensate the Bank for such increased costs or reduction. A certificate of the Bank claiming compensation under this Section 4 and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder and the method by which such amounts claimed have been allocated to the Loan shall be made in good faith and shall be conclusive absent manifest error; provided, however, such determination shall be communicated to Borrower at the time of demand. SECTION 5. Default Rate. If an Event of Default exists, this Note shall bear interest at the Default Rate, until the earlier of (a) such time as all amounts due hereunder are paid in full or (b) no such Event of Default exists. SECTION 6. Events of Default. The occurrence of any of the following events shall constitute an event of default (each an "Event of Default") under this Note (whatever the reason for such event and whether or not it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree, order, rule or regulation of any governmental authority): (a) any representation or warranty made in this Note shall prove to be false or misleading in any material respect as of the time made; or (b) any report, certificate, financial statement or other instrument furnished in connection with this Note shall prove to be false or misleading in any material respect as of the time furnished; or (c) any default shall be made in the payment when due of any of the obligations evidenced by this Note or any part thereof; or (d) failure of the Borrower to perform any other obligation or covenant to the Bank and such failure shall remain uncured for ten (10) -5- *547971 vt - Prom Voce-SunTrusuPynergy days after written notice thereof; or (e) failure of the Borrower to pay when due any amount owed another creditor under a written agreement calling for the payment of money; or (f) a reasonable belief on the part of the Bank that the Borrower is unable to pay its obligations when due or is otherwise insolvent; or (g) the filing of any petition or the commencement of any proceeding against the Borrower for relief under bankruptcy or insolvency laws, or any law relating to the relief of debtors, readjustment of indebtedness, debtor reorganization, or composition or extension of debt, which petition or proceeding is not dismissed within sixty (60) days of the date of filing thereof; or (h) the suspension of the transaction of the usual business of the Borrower or the dissolution, liquidation or transfer to another party of a significant portion of the assets of the Borrower; or (i) a reasonable belief on the part of the Bank that the Borrower has made a false representation or warranty in connection with any loan by or other transaction with any Bank, lessor or other creditor; or (j) the issuance or filing of any levy, attachment, garnishment, or lien against the Land of the Borrower which is not discharged within fifteen (15) days; or (k) the failure of the Borrower to satisfy immediately any final judgment, penalty or fine imposed by a court or administrative agency of any government; or (1) the failure of the Borrower, within ten (10) days after demand, to furnish financial information; or (m) the failure of the Borrower, after demand, to permit inspection of any books or records; or (n) if Borrower is a corporation or partnership, the persons owning the voting control of Borrower cease to owning such voting control; or (o) the occurrence of an Event of Default by Borrower under the Security Deed, the Loan Agreement, or under any other agreement entered into by Borrower and Bank taking into account any applicable notice and cure provisions, if any; or (p) the retail facility on the Premises which serves as collateral for the performance of this Note ceases to be a Conoco - branded facility for any reason; or (q) Borrower sells or transfers full or partial ownership of the Premises; or (r) any other act or circumstance leading the Bank to deem itself insecure. SECTION 7. Remedies. (a) Upon the occurrence and during the continuation of an Event of Default (other than an Event of Default described in Section 6(g)), the Bank may, in its sole discretion, (i) terminate all obligations of the Bank to the Borrower, including, without limitation, all obligations to make loans under this Note, (ii) declare this Note, including, without limitation, principal, accrued interest and costs of collection (including, without limitation, actual attorneys' fees and disbursements if collected by or through an attorney at law or in bankruptcy, receivership or other judicial proceedings) immediately due and payable, without presentment, demand, protest or any other notice of any kind, all of which are expressly waived. (b) Upon the occurrence of an Event of Default under Section 6(g) all obligations of the Bank to the Borrower, including, without limitation, all obligations to make loans under this Note, shall (i) terminate automatically and (ii) this Note, including, without limitation, principal, accrued interest and costs of collection (including, without limitation, reasonable attorneys' fees if collected by or through an attorney at law or in bankruptcy, receivership or other judicial proceedings) shall become immediately due and payable, without presentment, demand, protest, or any other notice of any kind, all of which are expressly waived. -6- k547971 v - Prom Nate-SunTrust/PynergY (c) Upon the occurrence of an Event of Default and acceleration of this Note as provided in (a) or (b) above, the Bank may pursue any remedy available under this Note or available at law or in equity, all of which shall be cumulative. The order and manner in which the rights and remedies of the Bank under the Note and otherwise may be exercised shall be determined by the Bank in its sole discretion. (d) All payments with respect to this Note received by the Bank after the occurrence of an Event of Default and acceleration of this Note (regardless of how the Bank may treat the payments for the purpose of its own accounting) for the purpose of computing the obligations hereunder, payments shall be applied first, to the costs and expenses (including actual attorneys' fees and disbursements) incurred by the Bank as a result of the Event of Default, as set forth above, second, to the payment of accrued and unpaid fees of the Bank, if any, third, to the payment of accrued and unpaid interest on this Note, to and including the date of such application, fourth, to the payment of the unpaid principal of this Note, and fifth, to the payment of all other amounts then owing to the Bank under the Note. No application of the payments will cure any Event of Default or prevent acceleration, or continued acceleration, of amounts payable under the Note or prevent the exercise, or continued exercise, of rights or remedies of the Bank hereunder or under applicable law. SECTION 8. Certain Waivers and Other Agreements by The Borrower. (a) AS TO THE OBLIGATIONS EVIDENCED BY THIS NOTE, THE BORROWER (i) WAIVES DEMANND, PRESENTMENT FOR PAYMENT, PROTEST, NOTICE OF PROTEST, SUIT AND ALL OTHER REQUIREMENTS NECESSARY TO HOLD THE BORROWER LIABLE; (ii) WAIVES ALL EXEMPTIONS OF PERSONAL LAND SECURED TO THE BORROWER UNDER THE CONSTITUTION AiND LAWS OF THE STATE OF WASHINGTON OR ANY OTHER STATE; AND (iii) AGREES TO PAY ALL COSTS OF COLLECTION, INCLUDING REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS, IN THE EVENT DEFAULT SHOULD BE MADE IN THE PAYMENT OF ANY OF THE OBLIGATIONS EVIDENCED BY THIS NOTE. (b) The Borrower (i) acknowledges that the Bank has not made any representations or entered into any agreements with such Borrower to induce such Borrower to enter into the transactions contemplated by this Note; (ii) agrees upon reasonable request such Borrower will furnish financial statements to the Bank and grant the Bank access to the Borrower's books and records; (iii) agrees that any obligations of the Borrower may, from time to time, in whole or in part, be renewed, extended, modified, accelerated, compromised, discharged or released by the Bank, and any collateral, lien, right of set-off or other security for the obligations evidenced by this Note or any other obligations of the Borrower to the Bank may, from time to time, in whole or in part, be exchanged, sold, released, satisfied, or terminated, all without notice to, or in any way affecting or releasing any of the obligations of the Borrower; and (iv) agrees that the Bank will not be required first to resort to any guaranty or any other security pledged or granted to the Bank, but upon a default under this Note, the Bank may forthwith look to the Borrower for -, 1547971 v - Prom Note-SunTnssUPynergY payment hereunder or may look to and realize upon any other security held by the Bank, in any order the Bank chooses, until the entire debt evidenced by this Note is paid. SECTION 9. Successors and Assigns. Whenever in this Note any party hereto is named or referred to, the heirs, executors, legal representatives, successors, successors -in -title and assigns of such party shall be included, and all covenants and agreements contained in this Note by or on behalf of Borrower or by or on behalf of Bank shall bind and inure to the benefit of their respective heirs, executors, legal representatives, successors, successors -in -title and assigns, whether so expressed or not; provided, however, that nothing contained in this Note shall or shall be deemed to limit or act in derogation of any restriction on transfer or assignment of the Premises impressed upon Borrower in any of the Loan Documents. SECTION 10. Severability Clause. If any provision of this Note shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. SECTION 11. Headings. The headings of the articles, paragraphs and subparagraphs of this Note are for the convenience of reference only, are not to be considered a part hereof, and shall not limit or otherwise affect any of the terms hereof. SECTION 12. Waiver and Election. The exercise by the Bank of any option given under this Note shall not constitute a waiver of the right to exercise any other option. No failure or delay on the part of the Bank in exercising any right, power or remedy under this Note shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. No modification, termination or waiver of any provisions of this Note, nor consent to any departure by the Borrower therefrom, shall be effective unless in writing and signed by an authorized officer of the Bank, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No notice to or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances. -8- #54797t vl . Prom No w.5unTnuVPynergY SECTION 13. Set-off. While any Event of Default exists, the Bank is authorized at any time and from time to time, without notice to the Borrower (any such notice being expressly waived by the Borrower), to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by the Bank to or for the credit or the account of the Borrower against any and all of the obligations evidenced by this Note, irrespective of whether or not the Bank shall have made any demand under this Note and although such obligations may be unmatured. The rights of the Bank under this Section 13 are in addition to all other rights and remedies that the Bank may have. SECTION 14. Usury Laws. If any of the provisions of this Note are susceptible of being construed as binding or obligating the Borrower, under any circumstances or contingencies whatsoever, to pay interest in excess of that authorized by law, it is agreed that such provisions are a mistake in calculation or wording, and notwithstanding the same it is expressly agreed that the Borrower shall not ever be required or obligated under the terms hereof to pay interest in excess of that authorized by law. It is the intention of the parties hereto to conform strictly to the existing usury laws of the United States and of the State of Georgia, or of any state which applies its own usury laws to the exclusion of such usury laws; and any of the aforesaid contracts for interest shall be held to be subject to reduction to the amount allowed under said usury laws. If any excess of interest over the maximum lawful rate is contracted for or charged or collected the excess shall be applied to the outstanding principal due hereunder. SECTION 15. Time of Essence. Time is of the essence of this Note and in the performance of all the covenants and agreements contained herein. SECTION 16. Survival and Reaffirmation of Representations and Warranties. All representations and warranties contained herein or otherwise made by or furnished on behalf of the Borrower in connection herewith shall survive the execution and delivery of this Note. Furthermore, each loan or borrowing by the Borrower shall be deemed to be a reaffirmation by the Borrower that all representations and warranties are true and correct as of such date. -9- 4517971 v I - Pram Note-SunTrusuP;mergy SECTION 17. Governing Law; Submission to Jurisdiction. THIS NOTE HAS BEEN DELIVERED IN GEORGIA AND THE RIGHTS AND OBLIGATIONS OF THE BANK AND BORROWER HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF) OF THE STATE OF GEORGIA AND TO THE EXTENT PERNIITTED BY LAW, THE BORROWER HEREBY WAIVES THE RIGHT TO TRIAL BY JURY. SECTION 18. Relations with Conoco Inc. Borrower understands and aclmowledges that in making the Loan evidenced by this Note to Borrower, the Bank is relying on certain agreements with, and the credit support of Conoco Inc. (the "Sponsor"). Sponsor has entered into certain agreements with Borrower and has induced the Bank to make the Loan in connection therewith. The Bank may release to Sponsor and its affiliates such information about the Borrower and the loan evidenced hereby as the Bank deems necessary or appropriate, including, without limitation, any financial information regarding the Borrower as the Bank may possess. The Bank may also condition its agreement to any waiver, modification or amendment with respect to this Note on obtaining Sponsor's or its affiliates' prior written consent. Upon the occurrence of any Event of Default under the Note or event which with notice or lapse of time or both may become an Event of Default, the Bank may, without incurring any liability to Borrower, notify Sponsor or its affiliates of such Event of Default before notifying the Borrower. The Bank shall not have any liability to Borrower as a result of any action taken or not taken by the Bank with respect to the loan evidenced by this Note on the instructions of Sponsor or its affiliates. The Bank may assigi this Note to Sponsor or any other person, at any time, whether or not there has occurred an Event of Default under this Note. BORROWER: PYNERGY, LLC Address of Borrower: 1500 Leyden Street Denver, Colorado 80220 -10- #547971 41 - Prom Note-SunTrum/Pynergy DR 8404-I (02/94) COLORADO DEPARTMENT OF REVENUE LIQUOR ENFORCEMENT DIVISION 1375 SHERMAN STREET 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 tm_2Gi tr try cif CQ.t (1,..0::>q/7/1 Date Social Security Number(s) `! 2. Your Full Name (last, first, middle) C gt.,t5k/A-f LiO1O1? 61: f EA) 3. Also Known As (maiden name/nickname, etc.) 4 G , 4. Mailing Address (if different from residence) Home Telephone 5. Residence Address (street and number, city, state, ZIP) Li 1 tO Sc; tM o vi c, e_ a P/C..: y li ✓c,2 e..O () ). -? 6. Date of Bin Place of Birth � t4...1notie, L -r 1/1/1 0 7. U.S. Citizen? 8i Yes No II Naturalized, stale where When Name of U.S. District Court Naturalization Certificate Number Date of Certificate If an Alien, Give Alien's Registration Card Number Permanent Residence Card Number 8. Height i' Weight .�,0, ,5 1 Hair Color ,lt c/'L Ie Color 1'�,:'� ,-a., Sex v tA... f t Bace 1l L.J ti- 9. Do You Have a current L. Yes No Driver's License? If yes, give number, & state ',c2 ' € / Name of Present Employer v' ri+>(4‘ w 1M A r1 1 i' r vt4 I r3 -f ✓► 11. Type of Business or Employment /Z S- .4u.2.f1.^� 12. Address of Business Where Employed (street number, city, sta{e, ZIP) _ `'I ) Pc,v, , S ',.� f ru t1 fie_ e 0 t:) ..;1 ,� S Business Telephone * (,)` . - 31 - ( `) 7 13. Present Position Pit' 5 d f'.4 14. Marital Status jj 15. Name of Spouse (include maiden name it applicable) 16. Spouse's Datt of Birth Spouse's Place of Birth 17. Spouse's residence address, if different than yours (street and number, city, state, ZIP) 18. Spouse's Present Employer Occupation 19. Address of Spouse's Present Employer 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 POSITION HELD NAME OF EMPLOYER LOCATION OF EMPLOYER _ 21. Do you now, or have you Licensee? If yes, answer El Yes ❑ t: )1Nv'if, ever held a State of Colorado Liquor or Beer License, or loaned money, furniture, fixtures, equipment or inventory, to any Colorado Liquor or Beer in detail 4 PO No Ci -;,,o5Lt,..� 14 -pit 5 d/i LA cti F/1 A't S S /) o I yG `�A1/454 , ..) Sos — `oicA--2..s-4-r.,a.02.A J CONTINUED ON REVERSE SIDE DR 8404-I (2/94) Page 2 22. Have violations, explain ■ you ever been convicted of a crime, or received a suspended sentence, deferred sentence, or forfeited bail for any offense in criminal or military court? (Do not include traffic unless they resulted in suspension or revocation of your driver's license, or you were convicted of driving under the influence of drugs or alcoholic beverages.) If yes, in detail. Yes Q No 23. Have you ever received a violation notice, suspension or revocation fora liquor law violation, or been denied a liquor or beer license anywhere in the U.S.? If yes, explain in detail. Q Yes ® No 24. Military Service (branch) L/C ,5, to4...t->,Q.C.I From /44 is To fs72 Serial Number Type of Discharge g.for hlL 25. List all addresses where you have lived for the past five years. (Attach separate sheet if necessary) STREET AND NUMBER CITY, STATE, ZIP FROM TO L(( (60 Sr IlVt 0 vtAc o Pkv0 , I, 1,,k;L) tkd eb SO 3-) , ys / PAcss,r 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) POSITION HELD FROM TO • ��JS1.t�w ti�tAvii�y 4vu�..a -G�cl..kj•i:., C- V -� 4(155 ?c,i .5 -. ?�k,J�'�. CO �W.n4,ti t c Pois..., V SoZ S`t 27. What is your relationship to the applicant? (sole owner, partner, corporate officer, director, stockholder, member or manager) ViA. L 1/1/12) toe__ C_c-e 28. If stockholder, number of shares owned beneficially or of record Percent of outstanding stock owned 29. It partner, state whether ❑ General ❑ Limited Percent of Partnership Owned If Limited Liability Company (percent owned) ab 41O 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 $ l �t '�5� • O O 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 $ (0-1, - 5-2.0 C.N. 021<.,f,5fnc..:, f.4vr.4tjEolg.Jf 0,.4-10.0 Ptak s' 16/..ohks e#/r.usdtc, $ $ $ ✓ , ,., t3 .,I '. k .�. , f f o e .W'; ":.i Y , 7`ItYlg4 lC ,�y ". I declare under penalty of perjury i e second degree that this application and all attachments are true, correct, and complete to the best of my know! ge. Authorized to / f ,�� --..) Title ,- c �t Date 9 /5 Imo' Y REFERENCE SIEET PLEASE ANSWER ALL QUESTIONS IN' DET_AU. . IF MORE SPACE IS NEEDED, USE REVERSE SIDE. DATE: I. Name: CeZ,aSLi4.w Last 2. Home Address: ciut First ML y 1 Sts 04: c, ec,pk- / ,\ 1 tit` Address City State Zit) Home Phone Date resided at the above Address: 1 ct r4C �i - ji C '2 U Drivers License Number: (11- from (State): co Has your drivers license ever been suspended or revoked? /V'') . If so, state reason: 5. Have you ever been convicted of a felony or any offense involving moral turpitude?_ A/a. If so, explain in detail. 6. List ail arrests 7. List date. place and the final disposition of the arrests noted in Question 6: °'� ''' r," 3. List all states in which you have resided for the past I0 years:. ( c;,`t-- 9. Starting with current employment, list all positions -held for the past ten years: COMPArv' .ADDRESS POSITION SUPERVISOR iiVe 's L-1755 pM' 5,�. !� iS.ct sr 3c3315165 7 • /c7 - P•fs • -11 ueIL�� t. v�1� ��.,..ts -e�..a4ti� /y Su `�55rj PHONE DATES 10. Have you had prior experience in operating a beer/liquor outlet? t6g5 If yes, give all pertinent information (name of outlet, address, name of supervisor, dates of employment, 7/)phone numbers, etc.) 1��-► c _� f x-ipr •� s 5 � f �: �Y 1 NAY v � �-4 .` c / ;Ipo�' 4- PC. Jf.n51nL...a �' ii4t�� /c5'S -/C- '-')( I;3 /557 11. List three character references. PLEASE ATTACH ONE LETTER OF REFERENCE FROM EACH OF THE THREE PERSONS LISTED BELOW. �' t S4— ;p I. �� Name Home Address City State Years Known Phone Y (day) 11 Name Home Address City State Years Known Phone T (day) Name Home Address City State Years Known Phone _ (day) 12. Do you now hold, or have you ever held a direct or indirect interest in a liquor or beer license, or been employed in a liquor or beer related business outside the State of Colorado? _116 . If yes, give 5 details (name and address of outlet, your role, etc.) f P l,, f c) h 1 Geri t ei 'S G tu. o .•'k-\ T • vutt,: . 1 r 4 4 1-') 5-i•�44.t4 i .:.. co t i[ c-,{ 5/_ d • 13. Have you ever used any alias? /I 0 If so, list names) used, when, where and for what purpose: 14. Have you as an individual or partner in a partnership; member or manager of a limited liability company; or officer, stockholder or director of a corporation, paid a fine in lieu of serving a suspension of a liquor or beer license? Yes No If so, please provide details: STATE OF l 1 t_ l�(--L(. )ss. COUNTY OF / tlll I hereby certify, under penalty of law, that the facts contained within the foregoing Reference Sheet are sue and correct and I understand that any falsification or misrepresentation may result in a rejection of this Application or revocation of said license. I further certify, under penalty of law, that no other person(s) has/have any direct or indirect financial interest in the business to be conducted under the license herein applied for, except those as set forth in the Application Form. I further warrant and certify that I have obtained and have examined copies of the Colorado Liquor Code or Colorado Beer Code and that I am familiar with the requirements thereof and the Rules and Regulations promulgated pursuant thereto, and all current Arvada Ordinances regulating the sale of fermented malt beverages or malt, vinous and spirituous liquors and hereby agree to abide with all the requirements thereof.' I also understand that any information provided herein may be subject to further substantiation.. - �% C-'Siaature Subscribed and sworn to before me this ` 2 aav of f/9 i , 196261 by ACirI!,)hid.7 C-`T3.1HL.(-c r� 6 DIERDRE H CHIN ≥ My commission expires: r -3/ C / -.- _- Comm .0%4,346 �..GTARY PUELIC GALIFORNJ ALAMEDA COUNTY 2 \'i-E� v Comm. Exo July 3, 2001 ; (SEAL) Notary Public (:) .MMccertaic z, September 22, 1999 To Whom It May Concern: I, Geta Asfaw, owner of McDonald's Restaurants in Denver, CO, am personally acquainted with Adolphus G. Crenshaw, 4755 Paris Street Suite 300, Denver, Colorado. Mr. Crenshaw is a person of good moral character. Mr. Crenshaw is a highly respected businessman in the Denver area. I can recommend Mr. Crenshaw without reservation for any enterprise or undertaking he may desire to pursue. L - Very truly yours, /2e `: . Larry R. Shughart Certified Public Accountant September 22, 1999 2120 S. Holly St., Suite 203 Denver, CO 80222 (303) 753-6205 FAX (303) 753-6254 Co Whom It May Concern: I, Larry R. Shughart, a certified public accountant in Denver, Colorado, am personally acquainted with Adolphus G. Crenshaw, 4755 Paris Street, Suite 300, Denver, Colorado. I have known A.C. for many years and know that he is a person of good moral character. Mr. Crenshaw is a respected and successful businessman in the Denver area. I highly recommend Adolphus G. Crenshaw for any enterprise or undertaking he pursues. Si cerell er a - Shugha September 22, 1999 To Whom It May Concern: I, Aaron Holland, owner of McDonald's Restaurants in Boulder, CO, am personally acquainted with Adolphus G. Crenshaw, 4753 Paris Street Suite 300, Denver, Colorado. Mr. Crenshaw is a person of good moral character. Mr. Crenshaw is a highly respected businessman in the Denver area. I can recommend Mr. Crenshaw without reservation for any enterprise or undertaking lie may desire to pursue. DR 8404-I (02/94) COLORADO DEPARTMENT OF REVENUE LIQUOR ENFORCEMENT DIVISION 1375 SHERMAN STREET 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,4 Business I*I tr4C CO -GI, Lt -C Date '/7%T9 Social Security Number(s) 2. You Full Name (last, first, middle) 3. Also Known As (maiden name/nickname, etc.) 4. Mailing Address (if different from residence) Home Telephone r;3 13- 0(0-2- 5. Residence Address (street and number, city, state, ZIP) SO 5Z �,-IAr•( C-(. J1Anil f4 , C0 %Ua-3 Cl 6. Date of Birt7 f Birth )1iJJi�r Co 7. U.S. Citizen? X Yes No If Naturalized, state where When Name of U.S. District Court Naturalization Certificate Number Date of Certificate If an Alien, Give Alien's Registration Card Number Permanent Residence Card Number 8. Hei ht '„ Weight (go Hair Color t}Iik Ex,?. Color 62,4) Sex OA R@ce 60c 9. Do You Have a current Driver's License? If yes, give number state xlYes ❑No 12- Name of Present Employer WZ"Il'K.fc/Z,� ,II.Jov4 L LL.L�. 11. Type of Business or Employm{eeg L ?nSte /1A✓ICE /✓ddkite 12. Address of Business Where Employed (street number, city, state, ZIP) Ioo C.ti.jct i -S-C.'3CAOcA.r t'o St 00 Business Telephone 3c:3-3w-Ui3o 13. PresggQt Position / JJ� PA2 l Qu 14f1 JsSc./24Ar£ Ric kcoe 14. Marital Status 4 y14;^ r✓, O c t 15. Nome of Spouse (include maiden name if applica le) ii £( 0 1f F s 3. i ,` 1,6 o f --f GI 16. Spouse's Date of Birth // // 7 7 c s Spouse' gu i f (in , r, 9C{ kA 4/r4 s- 17. Spouse's residence address, if different than yours (street and number, city,Cltate, ZIP) 18. Spo e's Present Employer Occupation 19. Address of Spouse's Present Employer 20. List the names of all relatives working name(s) gin or having a financial interest in the liquor industry. NAME OF RELATIVE RELATIONSHIP TO YOU POSITION HELD NAME OF EMPLOYER LOCATION OF EMPLOYER 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 Licensee? If yes, answer in detail Yes L3No CONTINUED ON REVERSE SIDE DR 2404-I (2;94) Page 2 22. Have you ever been convicted of a crime, or received a suspended sentence, deferred sentence, or forfeited bail for any offense in criminal or military court? (Do not include traffic violations, unless they resulted in suspension or revocation of your driver's license, or you were convicted of driving under the influence of drugs or alcoholic beverages.) If yes, explain in detail. ❑ Yes N 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.? If yes, explain in detail. ❑ Yes No 24. Military Service (branch) u , 2 S mot./ From 6G5/4ir To Serial Number Typ of Discharge �N,,I.44is 25. List all addresses where you have lived for the past five years. (Attach separate sheet if necessary) STREET AND NUMBER CITY, STATE, ZIP FROM TO r- SDSS (� 4,44 e-4. 4rtu4z. ec� 7V 23 5 G/7G /fir 4..f' 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) POSITION HELD FROM TO W(4.4 - -, L.i"�)O,Li i j06 L4,1d4.3 f GVIu� f t"6 , ,3 �� Qt / 5 rP�,c 4 5cuzzb f� 27. What is your relationship to the applicant? (sole owner, partner, corporate officer, director, stockholder, member or manager) 28. If stockholder, number of shares owned beneficially or of record Percent of outstanding stock owned 29. If partner, state whether ❑ General ❑ Limited Percent of Partnership Owned If Limited Liaifily Company (percent owned) U To 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 $ D. 71 D- 57. L.'D 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, OT nes moun s Sources - Account Numbers can sign on this account $ (9,5S I ctu. 441 i Gik,„ w , j u.:or 4 Li $ /L , c.,t 4 .1,4,1 S / f/ 0 (f,a L- , (")Q / ..4 $DSt 000 IA S ifrvt +L Gi4.,,) 6t1 s Jr Ir.J,r4(-1 $ / r 0 © Lt S Pj1 t k / C1 c,. O , 'J : (t. j --4-L Oath ofAROica 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. Authori Sig ure Title 6 Date 7z7-yf REFERENCE SHEET PLEASE ANSWER ALL QUESTIONS ENT DETAIL. IF MORE SPACE IS NEEDED, USE REVERSE SIDE. DATE: 1Y7 1. Name: j -, u 4 C 15 . U w Last First NE. . Home Address: 5055 I /�.J C*. .,u .-z- ('v ¶5c%?3j (35)373- o' -/Z 2 - Address Ciry State Zip Home Phone 3. Date resided at the above Address: L 4 7 Drivers License Number: - Issued from (State): co Has your drivers license ever been suspended or revoked? i-JO . If so, state reason: �. Have you ever been convicted of a felony or any offense involving moral turpitude? /`_' If so, exp lain in detail. 5. List all arrests: Lc, 44 7. List date, place and the final disposition of the arrests noted in Question 6: S. List all states in which you have resided for the past 10 years: b _ COicCAcAC-_, (l) 9. Starting with current employment, list all positions held for the past ten years: CONC'ANY ADDRESS POSITION SUPERVISOR PHONE DATES (vc,llet� '1\.1wur4U ISf L,w,.i3c3-3z D 30 5 c7o 10. Have you had prior experience in operating a beer/liquor outlet? /f G If yes, zive all pertinent information (name of outlet, address, name of supervisor, dates of employment, phone numbers, etc.) 11. List three character references. PLEASE ATTACH ONE LETTER OF REFERENCE FROM EACH OF THE THREE PERSONS LISTED BELOW. 1 \ 6vtt,J �-3�O C.4_1olt,J eti.,,c6,&,(0 36 30-355 - -35s- Name // Home Address City State Years Known Phone - (day) Lei; ellis,./ir4-.vk...4s ISty 'Ji it--d/4-N %'e-„( fir trGClL.` 3 5 3,:3 -- (...,f4,_ 4::,6c.. Name Home Address City State Years Known Phone .T (day) Pa\.2.4.. 5,.,? �t,�ut.t, e0 G 3- 3l/-2797 ��I (.its l � 3c' f-5 � Name Home Address City 'Stare Years Known Phone' (day) 12. Do you now hold, or have you ever held a direct or indirect interest in a liquor or beer license, or been employed in a liquor or beer related business outside the State of Colorado? /V G. If yes, give all details (name and address of outlet, your role, etc.) 13. Have you ever used any alias? Al o If so, list name(s) used, when, where and for what purpose: 14. Have you as an individual or partner in a partnership; member or manager of a limited liability company; or officer, stockhoider or director of corooration, paid a fine in lieu of serving a suspension of a liquor or beer license? Yes _ No If so, please provide details. STATE OF )ss. COUNTY OF 7I -"tit-'„' ELL I hereby certify, under penalty of law, that the facts contained within the foregoing Reference Sheet are true and correct and I understand that any falsification or misrepresentation may result in a rejection of this Application or revocation of said license. I further certify, under penalty of law, that no other person(s) hasihave any direct or indirect financial interest in the business to be conducted under the license herein applied for, except those as set forth in the Application Form. I further warrant and certify that I have obtained and have examined copies of the Colorado Liquor Code or Colorado Beer Code and that I am familiar with the requirements thereof and the Rules and Regulations promulgated pursuant thereto, and all current Arvada Ordinances regulating the sale of fermented malt beverages or malt, vinous and spirituous liquors and hereby agree to abide with all the requirements thereof. I also understand that any information provided herein may be subject to further substantiation. Signature Subscribed and sworn to before me this 27 day of = .0 ; , 19 1;2, by (SEAL) -62 My commission expires: // �c / � / Notary Public 7-'m -Ceti- it r�/ c_7 j' a (3) Muriel Green 2390 Leyden Street Denver. CO 80207 303-399-7538 September 21, 1999 To Whom It May Concern: If the measure of a person's character can be based on integrity, loyalty, and honesty then you have found these qualities and many more in Glen Dilworth. My late husband, son and I have always valued Glen's unwavering support in life's twists and turns. In crisis or celebration Glen has extended words of encouragement, a helping hand, or a shoulder to cry on. He has and continues to be a source strength for us. Glen's engaging personality leaves an indelible impression on anyone he meets. He is blessed with a sense humor and a sense of people that place him in a category far above others. Meeting Glen for the first time is like knowing him for a lifetime. His obvious love of people translates to bringing laughter and appreciation of life to anyone he meets. Without pretense, honesty and sincerity consistently define Glen's interaction with people. In the thirty-five plus years that I have known him, I have yet to see Glen be anything less than genuine with either friend or stranger. As we beam with pride over his successes as a businessman and community activist, we know that the foundation and reputation that Glen has established over the years are a sweet reward for someone so deserving. On a more private level, we know Glen as a devoted husband, father and doting grandfather. His strength of character and devotion are clearly mirrored in his sons and grandchildren. In a strong and caring manner, Glen reminds us all of a very fundamental lesson of life --- people do matter. Yours sincerely, Muriel Green October 6, 1999 To Whom It May Concern: My acquaintance with Glen Dilworth goes back over 30 years. Our acquaintance began at Manual High School, and we remain steadfast friends today. I know Glen to be a person of honesty and integrity. He has an excellent work ethic. An example of this is the fact that we worked together as apprentice meatcutters at a neighborhood grocery store. While attending high school, we worked after school and on weekends. Glen is willing to take on new challenges and work hard to perfect the effort. I have seen this quality many times as we skied together. We also took pilot lessons for small aircraft and again I can attest to his determination to be successful. Sincerely, Alvin H. Hankins 1514 Belgian Trail Elizabeth, CO 80107 October 6, 1999 To Whom It May Concern: I have known Glen Dilworth for over 30 years. We both attended Manual High School. Glen is a person to is not afraid of a challenge and is always willing to do the hard work to accomplish a goal. He cares about his community and is active as a community activist and volunteer. An example of this is that he is past president of the Five -Points Business Association and his worked with Inroads, Denver. The business Glen has worked to establish in the community is well respected. dependable and has a good reputation. I think this is the best example of the person that Glen is. Sincerely, Pnie- Elmer Tinsley 3015 Krameria St. Denver, CO 80207 OR 8404-I {02/94) COLORADO DEPARTMENT OF REVENUE LIQUOR ENFORCEMENT DIVISION 1375 SHERMAN STREET 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 forthe 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. Narrp Business VI4 vZ.G+/ LLB 2. Your Full Name (last, first, Diddle) (-1 S�f� 4. Maili`nAddress (if different fram residence) 3 9SSA5 ��fr�uc f, �o q.v Z 2 7 5. Residence Address (street and number. c state, ZIP) d s s. ?i p_cc 6. Date of Birth Place of Birth =,2ea ,t)1 (, Date Social Security Numbers) 3. Also Known As ( aiden name/nickname, etc.) rte✓-I.v l‹. Home Telephone ()3- Sys- 577O II Natur "zed, state where Naturalization Certificate Number 8. Height Weight I Hair Color C7 2_ 1 If( 10. Name of Present Employer vvl 0.0 Date of Certificate E e Color t -Sr ,1) Sex VLA 12. Address of Business Where Empl y (street nu ber, city, state. ZIP) 4-v�3c.1 Business Telephone S o ,a✓ 4,\(4 �. (�t� . -� Z ✓->t �,, t�42 3t,3 _ 3-73 - S 9 Z c� 13. Present Position -4 Race When y If an Alien, Give Alien's Registration Card Number 7. U.S. Citizen? ® Yes n No Name of U.S. District Court rJ fru()i x_ Permanent Residence Card Number 9. Do You Have a current Driver's License? If yes, give number, & state I )4t Yes f No 11. Type of Business or Employment (Zi4oi1iSe— Iff s+: 6r"AA"'sl,.• P.pc 14. Marital Status 16. Spouse's Date of Birth 15. Name of Spouse (include maiden name if applicable) Spouse's Place of Birth 17. Spouse's residence address, if different than yours (street and number, city, state, ZIP) 18. Spouse's Present Employer 19. Address of Spouse's Present Employer 20. Occupation List the name(s) of all relatives working in or having a financial interest in the liquor industry. _ NAME OF RELATIVE RELATIONSHIP TO YOU POSITION HELD NAME OF EMPLOYER LOCATION OF EMPLOYER 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 Licensee? If yes, answer in detail O Yes O CONTINUED ON REVERSE SIDE DP 8404-I tugs) ?age 2 22. Have you ever been convicted of a crime, or received a suspended sentence, deferred sentence, or forfeited bail for any offense in criminal or military court? (Do not include traffic violations, unless they resulted in suspension or revocation of your driver's license, or you were convicted of driving under the influence of drugs or alcoholic beverages.) 8 yes, explain in detail. ❑ Yes R 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.? If yes, explain in detail. ❑ Yes No 24. Military Service (branch) LL‹, I/�'Vt From ,/ s To s 7 _ t Serial Number Typ of Discharge N .�6/f 25. List ail addresses where you have lived for the past five years. (Attach separate sheet if necessary) STREET AND NUMBER CITY, STATE, ZIP FROM TO 57v y U1. v4f 4,161 174 /6 1 G#44-4 (.4-;.Q4› 4 e0 qO Z 7-7 51 ,./- (--(3v 1 So ? I ta.c t S-1- li -7- 4 (. ; *I 4 -4O,A) C- U I ,-3 e' A s As --,L- 2s. 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) POSITION HELD FROM TO Ft `1/14.2 e.„1,0,4,4( 55 c5-6 4;4344-04 Si 74 Z,4- C3 c.a,..4ke /af 7 Pfsr-4 Oc( el, 1' ; fir, 2 5 27. What is your relationship to the applicant? (sole owner, partner, corporate officer, director, stockholder, member or manager) 1/1A i 0,1 3 1 t2 L +l E4 r 28. If stockholder, number of shares owned beneficially or of record Percent of outstanding stock owned 29. If partner, state whether ❑ General • Limited Percent of Partnership Owned If Limited Liability Company (percent owned) V (/6 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 $ La7t 25 -7, at) 31. 1 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 $ Sz, (f z.3 (5.4 (3/J -4k �i< 1 ',7-5- 44.4 $ $ �] t _� pica �. .. .� .. t. `•F e,a �'s ie t, vti it - .. 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. Authoriziv e f41 Title ,( / ( 6' t Date 9/2-9// 3. Date resided at the above Address: REFERENCE SKEET PLEASE ANSWER ALL QUESTIONS IN DET II.. IF MORE SPACE IS NEEDED, USE REVERSE SIDE. 1. Name: -A 62_ DATE: Last First MIL 2. Home Address: el -30 S S. ?ate L 7c 177LE%D,J a y12/23 Address City State Zip "KS' 3c1S2 (303) `-4- 5 7 70 Home Phone # Drivers License Number: Issued from (State):616/cAi)c? Has your drivers license ever been suspended or revoked? 440 If so, state reason: 5. Have you ever been convicted of a felony or any offense involving moral turpitude? A/V . If so, explain in detail. 6. List all arrests: - 7. List date, place and the final disposition of the arrests noted in Question 6: S. List all states in which you have resided for the past 10 years: rd /4 /0 (1) 9. Starling with current employment, list all positions heIC for the past ten years: CONUA Y ADDRESS POSITION SUPERVISOR PHONE DATES ifSdee CO. 5 /316411, Sr 2/1 ftiz)c.C, - 50-3)573-K20 "Q4 - }?4c 10. Have you had prior experience in operating a beer/liquor outlet? W12 If yes, give all pertinent information (name of outlet, address, name of supervisor, dates of employment, phone numbers, etc.) 11. List three character references. PLEASE ATTACH ONE LETTER OF REFERENCE FROM EACH OF THE THREE PERSONS LISTED BELOW. Name Home Address City Stare Years Known Phone T (day) Name Home Address City State Years Known Phone # (day) Name Home Address City State Years Known Phone # (day) 12. Do you now hold, or have you ever held a direct or indirect interest in a donor or beer license, or been employed in a liquor or beer related business outside the State of Colorado? WO . If yes, give ail details (name and address of outlet, your role, etc.) 13. Have you ever used any alias? //0 If so, list name(s) used, when, where and for what purpose: 14. Have you as an individual or partner in a parmership; member or manager of a limited liability company; or officer, stocl hoider or director of a corporation, paid a fine in lieu of serving a suspension of a liquor or beer license? Yes No If so, please provide details. STATE OF ) )ss. COUNTY OF ) I hereby certify, under penalty of law, that the facts contained within the foregoing Reference Sheet are true and correct and I understand that any falsification or misrepresentation may result in a rejection of this Application or revocation of said license. I further certify, under penalty of law, that no other person(s) has/have any direct or indirect financial interest in the business to be conducted under the license herein applied for, except those as set forth in the Application Form. I further warrant and certify that I have obtained and have examined copies of the Colorado Liquor Code or Colorado Beer Code and that I am familiar with the requirements thereof and the Rules and Regulations promulgated pursuant thereto, and all current Arvada Ordinances regulating the sale of fermented malt beverages or malt, vinous and spirituous liquors and hereby agree to abide with ail the requirements thereof. I also understand that any information provided herein may be subject to further substantiation. - Signature Subscribed and sworn to before me this 5/5 day of f . - . , 19 q , by /7sJi (SEAL) My commission expires: 4,'t(11.2 -ti ?3 )AI, / (')/1 . Notary Public (3) BALL ENERGY SYSTEMS 14190E Evan Aye. Aurora, CO 10014.1831 (303)173-0315 . FAX (343) 3991929 October 5. 1999 To Whom It May Concern: This letter is a recommendation for Mr. Frank Fisher. I have known and done business with Mr. Fisher since 1988. I first met frank and his company Fisher Co. though my job as buyer and in my position as Minority Business Director for Public Service Co. of Colorado. We were very fortunate to have a supplier of franks caliber. Other buyers as well as myself at Public Service always found frank to be professional in all manner of business. It was continually stated that you could always depend and rely on franks word Since my retirement (1996)1 have had a relationship with fisher co. through my consulting firm. Frank has been able to promote and make sales on a national scale. Over these last thirteen years it has been more than a pleasure to have a relationship with Frank and Fisher Co. If there are any further questions or concerns please feel free to contact me at any time. Sincerely. Nelson Ball. Jr. BALL ENERGY SYSTEM 2O'd O36I-69£-CO£ S.Jf1OONd Wf131ON13d SOS 91:17T 66-9O-4OO ca_T CS =_=i1;51F'h' P.1 ll-ll a wEyr BANK$ I".' October 5, 1999 To Whom It May Concern: Norwest Bank Colorado, N.A. Montbello 4701 Peoria Street, Suite 109 Denver, Colorado 80239.2845 303/863.5566 This letter is in regards to one of our very valued customers Frank Fisher He has had a banking relationship with Norwest Bank since 1992. We are very proud to have such a outstanding client as Mr Fisher. I found Mr. Fisher to be very thorough, professional and very punctual . It has been my pleasure working with him and wish him the best in his endeavors. If you have farther questions or concerns, please don't hesitate to call me (303)863-5508. Sincerely, Nctcy Mel Teller filar October 5, 1999 To whom it may concern: Subject: Letter of Recommendation for Mr. Frank Fisher for a 3.2 liquor license. It is with high regard and esteem that I write this letter of recommendation for Mr. Frank Fisher. I have known Frank for over 8 years. During that time frame. I have developed a business and personal relationship with Frank. He is of the highest character demonstrating a tremendous sense of responsibility and integrity. It is without reservation that I recommend Mr. Fisher. Sincerely. Charles Jackson ?Li DR 8404-1 (02/94) COLORADO DEPARTMENT OF REVENUE LIQUOR ENFORCEMENT DIVISION 1375 SHERMAN STREET 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. IsAte of Business �1tnc�� ,11 1'_L c.. Date 9/7/ s Social Security Number(s) ' 2. Your Full Name(Mt/first, middle) /� I L�rC' fr.11d L- .3fAClcsoa A�eI—j A 3. Also Known As (maiden name/nickname, etc.) 4. Mailing Address (if different from relidence) Home Telephone 30 — 67/- 71'3, 5. Residence Address (street and number, city, state, ZIP) «1 S4,n,,• #4 s,evilf,e � 14c2.3 / 6. Date of Bill Mask of Birth / / /' 1 /5`{ TVf2 U 7. U.S. Citizen? )iC1 Yes ❑ No 1f Naturalized, state where When Name of U.S. District Court Naturalization Certificate Number Date of Certificate It an Alien, Give Alien's Registration Card Number Permanent Residence Card Number 8. Height 's " Weight 21 C.) Hair Color +j C Eye Color t�a .1.) Sex 1'v1 Race f 1/c 9. Do You Have a current L Yes Driver's License? It give number, & state No 9c) - f/ - of Present Employer ,j tn Fk G `�>i� 11. Type of Business or Employment 12 t -I... / Ct- 5-1O a t - Sri S-4.4 z ,-./12. Address of Busines here Employed (street number, city, spatete, ZIP) ccL 4 d 4,) I. 5 40 elfe / C. Co % ?'� i usiness Telephone -776 - -3' -SS?. 3 13. PrsentPosition i ki�rikti ✓i GC vC 14. Marital Status St cec;-4r 15. Name of Spouse (include maiden name if applicable) • C 4.0‘ — i6 Sdvi/ 16. Sp•us 's Date of Birth s6t�s(S7 Spouse' Birth (G.t(S14, 17. Spouse's residence address, if different than yours (street and number, city, state, ZIP) 18. Spouse's Present -Employer ` . . F. . .._._......._ - ._r._ _. ._!L___111n_re_.. t 1 GA,lr,l [� ['� �� 23 1 ✓Mitt, - f.3 f S -E C--.4 t- 19. Address Occupation 5 cr of Spouse's Present Employer Wv ` S U +.. 20. List the name(s) NAME OF RELATIVE of all relatives working in RELATIONSHIP or having a financial interest in the liquor industry. TO YOU POSITION HELD NAME OF EMPLOYER LOCATION OF EMPLOYER 21. Do Licensee? ■ 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 If yes, answer in detail Yes No CONTINUED ON REVERSE SIDE DR 8404-I (2194) Page 2 22. Have you ever been convicted of a crime, or received a suspended sentence, deferred sentence, or forfeited bail for any offense in criminal or military court? (Do not include traffic violations, unless they resulted in suspension or revocation of your driver's license, or you were convicted of driving under the influence of drugs or alcoholic beverages.) If yes, explain in detail. S Yes H No St-sp 4.1)y(.( 5e-,,4 .ue. E - k.:4€ ii S Ct. 5-4 ws . elux6:-rems:,,., Y . Scjtw+frt*Nc,r2 feSsc55%uJ a, ,..,,,4 ..r.,.. 6l.2/S i 23. Have you ever received a violation notice, suspension or revocation fora liquor law violation, or been denied a liquor or beer license anywhere in the U.S.? If yes, explain in detail. ❑ Yes RI No 24. Military Service (branch) From To Serial Number f Type of Discharge 25. List all addresses where you have lived for the past five years. (Attach separate sheet if necessary) STREET AND NUMBER CITY, STATE, ZIP FROM TO 1S7 S. Yc ;;fA wtu Co O23 I ,615q fait- S 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) POSITION HELD FROM TO 61yf LA441 a i,t,,,s4 --Z/4 /(hst ,d/Uov )Uevo 5!2. CiCw(bti.4. 6,,,,,iv.„,..4. /Sri . ZU -Z S1)tc:.l.,4 27. What is your relationship to the applicant? (sole owner, partner, corporate officer, director, stockholder, member or manager) A1n4 'c- 28. If stockholder, number of shares owned beneficially or of record Percent of outstanding stock owned 29. If partner, state whether • General • Limited Percent of Partnership Owned If Limited Liability Company (percent owned) Z0 .k• 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) li Amount $ - ' ! Z. Lib -- 31. Identify the sources of all funds you win invest to Mira uuoulmoa u, 7d... � __ _ _ 0 e your lsi e t or loans lpersons account numbers and the amount derived from such source. or who are part owners of said account. (Attach copies se dantor forth sobus Hess.) Names on accounts or person who can Sources - Account Numbers sign on this account Amounts $ o� i r �S c1 7 u V $ 44,A0, -.4_A, Li'L k., ...)(-6 : 4-r}`.4 (,f(„t,..y( 5-x, "7 -Z..- n /. f I / $ $ Oath of Applicant best I declare under penalty of perjury in the second degree that this application and all attachments are true, correct, and complete knowledge. to the Date of my Au t ized Signature Title // /-1/G ,..tsed ALL .:+; / - .. '_ .. .•_ ... . REFERENCE SHEET PLEASE ANSWER ALL QUESTIONS Lei DETAIL. IF MORE SPACE IS NEEDED, USE REVERSE SIDE. DATE: 1. Name: --)11"CL5--‘,/ NI-Agc / / L --- Last Firs NE. Home Address: 3 I S 1 S. X 4 , 4 0 e1. A v ti C_) e .--11I (j2/- 734: Address City State Zip Home Phene Date resided at the above Address: `5 it cl Drivers License Number: `/- Issued from (State): CC.) Has your drivers license ever been suspended or revoked? /1 C' . If so, state reason: 5. Have you ever been convicted of a felony or any offense involving moral turpitude? �s . If so, explain in detail. rc, SS G•) c." lit" . Ls. A/4 fr.? SGi o. List all a:Tests: .l 5 C u — C I c ,.i O.; -4- c to 4-473 4 7. List date, place and the final disposition of the arrests noted in Queition 6: U C t . r5 CS A. ;CI ry -T E(�i A:,. C � +{: r t; 4 / D //.2 / % S T)i� C! r• el f i � L •wt S. List all states in which you have resided for the past 10 years: C� /�/r JL (1) 9. Staring with current employment, CONTANY ADDRESS Cac 'Ji✓u(Lie_ zt!,/12 list all positions held for the past ten years: / POSITION SUPERVISOR PHONE DATES c. `(. s,.. /E. 5 � ,-- / S/J4C.cr..S4- /11vi441'4 r 10. Have you had prior experience in operadng a beer liquor outlet? %1/4, If yes, sive all perdnent information (name of outlet, address, name of supervisor, dates of employment, phone numbers, etc.) 11. List three character references. PLEASE ATTACH ONE LETTER OF REFERENCE FROM EACH OF THE THREE PERSONS LISTED BELOW. IMvvtuv1 !c14,a Name Home Address 13z`i,1s.l'--,,,r,./-)r, ��, r .0 L(, �� ( 31 %7 - 3).7 7O City State Years Known Phone - (day) vtuck„z« r �,i,I,;&z, Cu. 2 C) -f- a -L0 cO Name Home Address City State Years Known Phone - (day) Asa Name LA)c-- p— ZS CO ee Ptcti Home Address City a '. r £'o /C (% 5 37G o ( State Years Known Phone' (day) 12. Do you now hold, or have you ever held a direct or indirect interest in a liquor or beer license, or been employed in a liquor or beer related business outside the State of Colorado? Al O. If yes, give all details (name and address of outlet, your role, etc.) 13. Have you ever used any alias? ^ If so, list names) used, when, where and for what purpose: 14. Have you as an individual or partner in a partnership; member or manager of a limited liability company; or officer, stockholder or director ocorporation, paid a fine in lieu of serving_ a su$pe'sion of a liquor or beer license? Yes No If so. please provide details. , STATE OF C -' )ss. COUNTY OFD _-/t' I hereby certify, under penalty of law, that the facts contained within the foregoing Reference Sheet are true and correct and I understand that any falsification or misrepresentation may result in a rejection of this Application or revocation of said license. I further certify, under penalty of law, that no other person(s) has/have any direct or indirect financial interest in the business to be conducted under the license herein applied for, except those as set forth in the Application Form. I further warrant and certify that I have obtained and have examined copies of the Colorado Liquor Code or Colorado Beer Code and that I am familiar with the requirements thereof and the Rules and Regulations promulgated pursuant thereto, and all current Arvada Ordinances regulating the sale of fermented malt beverages or malt, vinous and spirituous liquors and hereby agree to abide with all the requirements thereof. I also understand that any information provided herein may be subject to further substantiation. Subscribed and sworn to before me this (SEAL) Siatt)�e i v O ?7 day of-Clf,-_ , 19_%' / My commission expires: // / / / i . Notary Public 1=) /17 ( a� FIVE POINTS I^\ BUSINESS ASSOCIATION September 21, 1999 To Whom It May Concern: The Five Points Business Association is a non-profit 501c-3 organization that deals with economic development. The Association has been a NBR (Neighborhood Revitalization District) for 12 years. NBR's are Business Support Offices of the Mayors Office of Economic Development. In the past twelve years Darrell Jackson has been a liaison between the Association's offices and the MOED offices. Darrell became a wonderful asset to this organization in that time. His enthusiasm and professionalism helped the Association in many ways. I have been the Executive Director at Five Points since 1997. In that time Darrell Jackson and I have formed an excellent working relationship. I find Mr. Jackson to be through, punctual, innovative, and flexible. It has been my pleasure to work with him, and I give my utmost confidence to him in all the endeavors he proceeds with. If there are any concerns or questions, please do not hesitate to contact me at the Five Points Business Association, at 2444 Washington Street STE 300, Denver Co 80205. (303) 832-3770 Sincerely, g1 l ciLLl.l arva Coleman Executive Director Five Points Business Association 2444 Washington St., Suite #300 • Denver, CO 80205 • (303) 832-3770 September 22, 1999 To Whom It May Concern: I have known Darrell Jackson for over the last ten years. Darrell has gone beyond the call of duty in assisting me with several real estate projects in targeted neighborhoods in the City of Denver. Mr. Jackson is a very straight forward individual and will have much success in whatever endeavor he chooses. Sincerely, Kenneth A. Walker September 17, 1999 To Whom It May Concern: I have known Darrell Jackson for over the last twenty-five years on both a personal and business level. Over this period of time, I have found Mr. Jackson to be honest, trustworthy and very hard working. His professionalism and business knowledge has helped me start and grow my business over the past eight years. Sincerely, A cl Michael Smith, Owner Park Avenue West True Value Hardware DR 8404-I (02/94) COLORADO DEPARTMENT OF REVENUE LIQUOR ENFORCEMENT DIVISION 1375 SHERMAN STREET 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 o usiness yr�4stG�l PLC_ Date 517 95 Social Security Number(s) - 2. Your Full Name (last, first, middle) tet.) cfact, ,efor A- Aid £rz 3. Also Known As (maiden name/nickname, etc.) 4. Mailing Address (if different from residence) Home Telephone 5. Residence Address (street and number, city, state, ZIP) .&UG vtiiuvtvECo PLau ��1v�rt, �v 1 CYL07 6. Date f Birth �1 r S✓i-N AO torn.o '(cr fva 5 7. U.S. Citizen? R Yes No If Naturalized, state where r When Name of U.S. District Court Naturalization Certificate Number Date of Certificate Ilan Alien, Give Alien's Registration Card Number Permanent Residence Card Number 8. Height `J It Weight I c<0 Hair Color 31 IL Eye Color ?J rA) Sex (M Race SW( 9. Do k You Have a Yes current S Driver's License? It yes, give number, & state No 9CH3y- OS/5 mof Present Employer // __ "'.uc cc. gift - o r ( 41.) O 7431 11. Type of Business or Employment (0 'S U ✓ .11--61 r c A C“ v. C 12. Address Business Where Employed (street number, city, state, ZIP) i see C 4., ci 4 w S4- St.,ast-1Oc t_ k.riC4-✓ e0 Business Telephone 3v3-31 O- O &O .s1-"r.w,lJr,e, ic, 720 13. Present Position —1-- VA- Suv2-V4-I E ?DC ok f iL 14. Marital Status Cl 1 rC .. 15. Name of Spouse (include maiden name if applicable) 16. Spouse's Dater& Birth Spouse's Place of Birth 17. Spouse's residence address, if different than yours (street and number, city, state, ZIP) 18. Spouse's Present Employer Occupation 19. Address of Spouse's Present Employer 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 POSITION HELD NAME OF EMPLOYER LOCATION OF EMPLOYER 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 Licensee? If yes, answer in detail a Yes No ra.4♦-4.J`5 /Atli -O 4 /`155 P.ci4 r4u€ O ,,,,'1A r .-,,u Sus;-1iss Sc, la 19 cis CONTINUED ON REVERSE SIDE F'; ge 22. Have you ever been convicted of a crime, or received a suspended violations, unless they resulted in suspension or revocation of explain in detail. sentence, deferred sentence, or forfeited bail for any offense in criminal or military court? (Do not include traffic your driver's license, or you were Convicted of driving under the influence of drugs or alcoholic beverages.) If yes, I4 lea 1U I — 4 itelis`J Yes ■ No Lo,(. - 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.? If yes, explain in detail. ❑ Yes I. No 24. Military Service (branch) From To Serial Number Type of Discharge 25. List all addresses where you have lived for the past five years. (Attach separate sheet if necessary) UMBER CITY, STATE, ZIP FROM TO ` Ca L A- tJ'IC ��►�v4�e t eo c6oz()-, /53 nr4st-+ 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) POSITION HELD FROM TO L 11 c ..t - `. 1 j r -4 (s 1 54-)L) c 9 4) Si • 'b -vt c.;c-d" CO r4 .•,.c 5 MO A 1S40-1 c-dZc-) 7 27. What is your relationshito the applicant? (sole owner, partner, corporate officer, director, stockholder, member or manager) IM 4 l/✓1 r5 L tZ_. — C_ C_.. 28. If stockholder, number of shares owned beneficially or of record Percent of outstanding stock owned 29. If partner, state whether ❑ General ❑ Limited Percent of Partnership Owned 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 $ C./71 '1S C) O If Limited Liability Company (percent owned) 64 1O 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, ur who are art wne: ness!)mounis 'Anne: s of said at,t,ourrt. (-A cu. vvpleb of di your Sources - Account Numbers a°tefafni$≥ i ' 8th'44 'M4ncan sign on this account $ 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. Authorized Signature Title 1*A Date 9/74, ;S. REFERENCE SKEET PLEASE ANSWER ALL QUESTIONS IN DETAL. Lc MORE SPACE IS NEEDED, USE REVERSE SIDE. DATE: 7 52 IN I 1. Name: (,� k Ut. s2 t 1 ve O f f L7 Last First NE. ? Home Address: Z13C`b AL,1,a«P& ) <)f„tu re Co '51)2.-C7 (Ste 333- /5c/0 Address City State Zip Home Phone Dare resided at the above Address: /`i 91 Drivers License Number: ,`7 from (State): i O Has your driven license ever been suspended or revoked? ./k/C If so, state reason: Have you ever been convicted of a felony or any offense involving moral turpitude? . If so, explain in detail. 6. List all arrests: - 7. List date, place and the final disposition of the arrests noted in Question 6: S. List all states in which you have resided for the past 10 years: Cc is £,-4 fir, (I) Starting with current employment, list all positions held for the past ten years: C0NEPANY ADDRESS POSITION SUPERVISOR lSoo c.c.)5A cks PHONE DATES 10. Have you had prior experience in operating a beer/liquor outlet? "1O If yes, give all pertinent information (name of outlet, address, name of supervisor, dates of employment, phone numbers, etc.) I I. List three character references. PLEASE ATTACH ONE LETTER OF REFERENCE FROM EACH OF= THREE PERSONS LISTED BELOW. • Name C,vrz.t� Name Home Address City State Years Known Phone T (day) Home Address City State G(;,i1 44.:!..‘::i4 Name 'Sc• 55 l -1-..a,Y (14 �irlk) 4.:2, ( (j Home Address City State Years Known Phone # (day) Jc,ot IC Years Known - 7,`. .y)(- f<N2 Phone (day) -7L L- 12. Do you now hold, or have you ever held a direct or indirect interest in a liquor or beer license, or been employed in a liquor or beer related business outside a State of Colorado? w1. r 5 . If yes, give, all c3c, /ci5'ti /aR€'s" details (name and address of outlet, your role, etc.) 6i �Y 5 % �t-. Lko,4-A , 5,./J 13. Have you ever used any alias? N O If so, list name(s) used, when, where and for what purpose: 1-L. Have you as an individual or partner in a partnership; member or manag.er of a limited liability company; or officer, stockholder or director of a corporation, paid a fine in lieu of serving a suspension of a liquor or beer license? Yes No X If so, please provide de:ails. STATEOF %<<'L'-2 COUNT OF 7),r— )ss. I hereby certify, under penalty of law, that the facts contained within the foregoing Reference Sheet are true and correct and I understand that any falsification or misrepresentation may result in a rejection of this Application or revocation of said license. I further certify, under penalty of law, that no other person(s) hasinave any direct or indirect financial interest in the business to be conducted under the license herein applied for, except those as set forth in the Application Form. I further warrant and certify that I have obtained and have examined copies of the Colorado Liquor Code or Colorado Beer Code and that I am familiar with the requirements thereof and the Rules and Regulations promulgated pursuant thereto, and all current Arvada Ordinances regulating the sale of fermented malt beverages or malt, vinous and spirituous liquors and hereby agee to abide with all the requirements thereof. I also understand that any information provided herein may be subject to further substantiation. l9"% , by Signature Subscribed and sworn to before me this 2 7 day of (; F- <m - (SEAL) , My commission expires: // ,C7/ -77 .7:7 --to / z ✓� si Notary Public / C C c/66 --r y �.. C C C zri (3) October 5, 1999 To Whom It May Concern: Excise and License Bureau 200 W. 14`h Ave. Denver. CO 80215 Re: Kenneth Walker's Application for a liquor license This is letter of recommendation in favor of Kenneth A. Walker that he would be given the honor to own a liquor license. I have known Kenneth for a very long time now, and consider him to be an active, responsible, and dedicated person of his work. He has completed his work with competence, loyalty, and high quality. The decision making of Kenneth Walker is one of high value, and great merit. In conclusion, I sincerely recommend that Kenneth A. Walker be granted a liquor license through your office. If there are any questions or concerns regarding my recommendation of Kenneth Walker, please contact me at (303) 370-0930. Glen W. Dilworth October 5, 1999 Charles Jamison 8685 N. Lamar DR Arvada. CO 80003 Whom It May Concern Excise and License Bureau City and County Building Denver, CO 80215 This is a letter reference on behalf of'v1r. Kenneth Walker that he be granted a Liquor license. I have known Mr. Walker for the last fifteen years. He has represented himself in the highest level of ethics. He has demonstrated an impeccable level of administrative competence. He combines technical competence with dependability and loyalty. In business Mr. Walker uses the most penetrating and objective evaluations to arrive at decisions. It is without reservation that recommend Mr. Walker be granted licensing through your office. ≤.r_--- �f.'1� ies'E. Jain ison `. (303) 368-2L74.Officc (303) 424-1527 Home Arie Parks Taylor 3328 Magnolia Street Denver, Colorado 80207 303-321-0948 4 October 1999 Helen Gonzales, Director Excise and License 200 W. !4th Ave. Denver, Colorado 80204 Re: Kenneth Walker's Application for a liquor license Dear Helen, This is a letter of recommendation on behalf of Kenneth Walker in regard to his application for a liquor license. I have known Ken since his arrival in Denver more than 20 years ago, he has always been active in business and community affairs. He is dedicated to making things better for everyone. In each of Ken's endeavors he has always chosen the high road and that speaks volumes in this world today. He is forthright, honest and unassailable in his integrity. Ken is a upstanding businessman, I count him as a leader in the community. Please do not hesitate to contact me if there are any questions or concerns. Yours truly, Arie P. Taylor STATE�b= 7 RADO \$ DEPARTMENT OF STATE CER111{'1CATE I, VICTORIA BUCKLEY, SECRETARY OF STATE OF THE STATE OF COLORADO HEREBY CERTIFY THAT ACCORDING TO THE RECORDS OF THIS OFFICE PYIERGY, LLC (COLORADO LIMITED LIABILITY COMPANY) FILE # 19971139787 WAS FILED IN THIS OFFICE ON September 03, 1997 AND HAS COMPLIED WITH THE APPLICABLE PROVISIONS OF THE LAWS OF THE STATE OF COLORADO AND ON THIS DATE IS IN GOOD STANDING AND AUTHORIZED AND COMPETENT TO TRANSACT BUSINESS OR TO CONDUCT ITS AFFAIRS WITHIN THIS STATE. Dated: April 05, 1999 SECRETARY OF STATE V ` Please include a typed self-addressed envelope MUST SE TYPED FILING FEE: $25.00 MUST SUBMIT TWO COPIES 0,14"4l:CaE Pursuant to the provisions of the Colorado Limited Liability Company Act, the Articles of Organization shall be amended as set forth herein: Mail to: Secretary of State Corporations Section 1560 Broadway, Suite 200 Denver, CO 80202 (303) 894-2251 Fax (303) 894-2242 ,F Farofii e_-aseor¢I)r, 032 VICTORIA aLc:q ' z ros�^tr nz.. 3•;.a 4f1 r^ JJ AMENDMENT TO THE ARTICLES OF ORGANIZATION FOR A COLORADO LIMITED LIABILITY COMPANY Boulevard North Forty, LLC (The) Exact name of limited liability company 1500 Leyden Street Denver Principal Address Colorado 80,220 City CIRCLE ALL THAT APPLY: State Zip A. There is a change in the name of the limited liability company to: Pynergy, LLC B. There is a change in the dissolution date of the limited liability company to: C. There is a false or erroneous statement or the members desire to change any other statement in the Articles of Organization. (Describe below) D. All of the members have elected to accept the 1994 amendments to the Limited Liability Company Act. Signatu Revised 7195 MUST BE TYPED FILING FEE: $50.00 MUST SUBMIT TWO COPIES Mail to: Secretary of State Corporations Section 1560 Broadway, Suite 200 Denver, CO 80202 (303) 894-2251 Fax (303) 894-2242 Please include a typed ARTICLES OF ORGANIZATION self-addressed envelope For office use only I/We the undersigned natural person(s) of the age of eighteen years or more, acting as organizer(s) of a limited liability company under the Colorado Limited Liability Company Act, adopt the following Articles of Organization for such limited liability company: FIRST: The name of the limited liability company is: The Boulevard North Forty, LLC SECOND: Principal place of business (if known): 1500 Leyden Street, Denver, CO 80220 THIRD: The street address of the initial registered office of the limited liability company is: 1500 Leyden Street Denver, CO 80220 The mailing address (if different from above ) of the initial registered office of the limited liability company is: The name of its proposed registered agent in Colorado at that address is: Kenneth A. Walker FOURTH: X The management is vested in managers (check if appropriate) FIFTH: The names and business addresses of the initial manager or managers or if the management is vested in the members, rather than managers, the names and addresses of the member or members are: NAME ADDRESS (include zip codes) Kenneth A. Walker 1500 Leyden Street, Denver, CO 80220 - Darrell L. Jackson 3157 S. Xenia Street, Denver, CO 80231 SIXTH: The name and address of each organizer is: NAME ADDRESS (include zip code) Kenneth A. Walker 1500 Leyden Street, Denver, CO 80220 Darrell L. Jackson 3157 S. Xenia Street, Denver, CO 80231 / Signed 17, _8.,71,0 r... rryGvc.� Signed Kr, Organizer `organizer OPERATING AGREEMENT of PYNERGY, LLC a Colorado limited liability company 1_,]677.01 TABLE OF CONTENTS Page ARTICLE I DEFINITIONS I ARTICLE II FORMATION Section 2.01. Organization 4 Section 2.02. Name 4 Section 2.03. Effective Date 4 Section 2.04. Term 4 Section 2.05. Registered Agent and Office 4 Section 2.06. Principal Office 4 Section 2.07. Nature of Business 4 Section 2.08. Certificates of Membership Interests 4 ARTICLE III ACCOUNTING AND RECORDS Section 3.01. Records to be Maintained 4 Section 3.02. Reports to Members 5 ARTICLE IV MEMBERS AND CAPITAL Section 4.01. Contributions to Capital 5 Section 4.02. Additional Contributions 5 Section 4.03. Capital Accounts 5 Section 4.04. Limited Liability 5 Section 4.05. Interests 5 ARTICLE V RIGHTS AND DUTIES OF MEMBERS Section 5.01. Admission of New Members 6 Section 5.02. Transactions Between a Member and the Company 6 Section 5.03. Resignations 6 02-43677.01 ARTICLE VI MANAGEMENT BY MEMBERS Section 6.01. Management 6 Section 6.02. Officers 7 Section 6.03. Certain Powers 7 Section 6.04. General Restrictions on Authority 7 Section 6.05. Compensation 8 Section 6.06. Non -Liability of Members and Officers S Section 6.07. Voting Rights 8 Section 6.08. Annual Meeting 8 Section 6.09. Special Meetings 8 Section 6.10. Place of Meeting 8 Section 6.11. Notice of Meetings 9 Section 6.12. Meeting of all Members 9 Section 6.13. Record Date 9 Section 6.14. Quorum 9 Section 6.15. Manner of Acting 9 Section 6.16. Proxies 9 Section 6.17. Action by Members Without a Meeting 9 Section 6.18. Waiver of Notice 10 Section 6.19. Participation by Electronic Communications 10 Section 6.20. Committees 10 Section 6.21. Members and Officers Have No Exclusive Duty to Company 10 Section 6.22. Conflicts of Interest 10 ARTICLE VII CAPITAL ACCOUNTS Section 7.01. Maintenance of Capital Accounts 11 Section 7.02. Distribution of Assets 11 Section 7.03. Sale or Exchange of Interest 11 Section 7.04. Revaluation of Partnership Property 12 Section 7.05. Compliance with Section 704(b) of the Code 12 ARTICLE VIII ALLOCATIONS AND DISTRIBUTIONS Section 8.01. Allocations of Net Profits and Net Losses 12 Section 8.02. Company Minimum Gain Chargeback 12 Section 8.03. Member Minimum Gain Chargeback 13 Section 8.04. Qualified Income Offset 13 Section 8.05. Interim Distributions 13 Section 8.06. Limitations on Distributions 13 02-43677.01 ii Section 13.04. Winding Up and Certificate of Dissolution 19 ARTICLE XIV AMENDMENT Section 14.01. Amendment or Modification of Agreement 19 Section 14.02. Amendments by Officers 19 Section 14.03. Amendments on Admission or Withdrawal of Members 20 ARTICLE XV MISCELLANEOUS PROVISIONS Section 15,01. Indemnification of Members, Officers, Employees and Agents 20 Section 15.02. Entire Agreement 20 Section 15.03. No Partnership Intended for Nontax Purposes 20 Section 15.04. Rights of Creditors and Third Parties under Agreement 20 Section 15.05. Facsimile; Counterparts 21 Section 15.06. Changes in Applicable Law 21 Section 15.07. Arbitration 21 EXHIBIT A I INITIAL CONTRIBUTIONS 02-13677.01 iv Section 13.04. Winding Up and Certificate of Dissolution 19 ARTICLE XIV AMENDMENT Section 14.01. Amendment or Modification of Agreement 19 Section 14.02. Amendments by Officers 19 Section 14.03. Amendments on Admission or Withdrawal of Members 20 ARTICLE XV MISCELLANEOUS PROVISIONS Section 15.01. Indemnification of Members, Officers, Employees and Agents 20 Section 15.02. Entire Agreement 20 Section 15.03. No Partnership Intended for Nontax Purposes 20 Section 15.04. Rights of Creditors and Third Parties under Agreement 20 Section 15.05. Facsimile; Counterparts 21 Section 15.06. Changes in Applicable Law 21 Section 15.07. Arbitration 21 EXHIBIT A 1 INITIAL CONTRIBUTIONS 1 02-43677.01 iv This Operating Agreement ("Agreement") PYNERGY, LLC, a Colorado limited liability company (the "Company"), organized pursuant to the Colorado Limited Liability Company Act and all amendments thereto (the "Act"), is entered into and shall be effective as of the Effective Date set forth in Section 2.04 below, by and among the Company and the Persons executing this Agreement. ARTICLE I DEFINITIONS For purposes of this Agreement, unless the context clearly indicates otherwise, the following terms shall have the following meanings: "Additional Member" means a Member, other than an Initial Member, who has acquired an Interest from the Company. "Articles" means the Articles of Organization of the Company as properly adopted and amended from time to time by the Members and filed with the Colorado Secretary of State. "Bankrupt Member" means a Member who: (a) has become the subject of an Order for Relief under the United States Bankruptcy Code; and/or (b) has initiated, either in an original Proceeding or by way of answer in any state insolvency or receivership proceeding, an action for liquidation arrangement, composition, readjustment, dissolution or similar relief. "Capital Account" means, in the event that there is more than one Member, the account established for each Member as set forth in Section 4.04 hereof "Code" means the Internal Revenue Code of 1986, as amended from time to time, or corresponding provisions of subsequent superseding federal revenue laws. "Commitment" means the obligation of a Member to make a Contribution in the future. "Company Liability" means any enforceable debt or obligation for which the Company is liable or which is secured by any Company Property. "Company Property" means any Property owned by the Company. "Contributing Members" means Members making Contributions as a result of the failure of a Delinquent Member to perform a Commitment as described in Article IV. "Contribution" means any contribution of Property made by or on behalf of a new or existing Member as consideration for an Interest. "Default Interest Rate" means the prime rate as quoted by [insert name of bank] located in , Colorado, or its successors and assigns, on the first day of the month preceding the month in which a Delinquent Member fails to perform his, her or its Commitment as set forth in Section 4.03 below, plus two percent (2%). 03-43677.01 1 "Delinquent Member" means a Member who has failed to meet the Commitment of that Member. "Disposition (Dispose)" means any sale, assignment, transfer, exchange, mortgage, pledge, grant, hypothecation or other transfer, absolute or as security or encumbrance (including dispositions by operation of law). "Dissociation" means any action which causes a Person to cease to be Member as described in Article XI hereof "Dissociated Member" means a Person who has ceased to be Member as a result of Dissociation in Article XI hereof. "Distribution" means a transfer of Property pursuant to Article VIII. "Initial Contribution" means the Contribution agreed to be made by the Initial Members as described in Section 4.01. "Initial Members" means those persons identified on Exhibit A attached hereto and made a part hereof by this reference who have executed this Agreement. "Interest" means the entire ownership interest of a Member in the Company at any date of determination, including the right of such Member to any and all benefits to which a Member be entitled as provided in the Act, the Articles and in this Agreement, together with the obligations of such Member to comply with all the terms and provisions of this Agreement, the Articles and the Act. "Liquidating Distribution" means a Distribution made as consideration for an Interest. "Majority" means Members having voting rights collectively exceeding 50% of the voting rights of all the Members entitled to vote on, consent to, or approve a particular matter. "Member" means an Initial Member or Additional Member. "Net Losses" means the losses and deductions of the Company determined in accordance with accounting principles consistently applied from year to year employed under the method of accounting adopted by the Company and as reported separately or in the aggregate, as appropriate, on the tax return of the Company filed for federal income tax purposes. "Net Profits" means the income and gains of the Company determined in accordance with accounting principles consistently applied from year to year employed under the method of accounting adopted by the Company and as reported separately or in the aggregate, as appropriate, on the tax return of the Company filed for federal income tax purposes. Net Profits includes taxable income, capital gain and income exempt from taxation. "Notice" means a writing as required by this Agreement. Unless otherwise set forth in this Agreement, (a) Notice to the Company shall be considered given when mailed by first-class mail postage prepaid, when personally delivered or when sent by facsimile transmission, 0213677.01 2 addressed to the Secretary of the Company in care of the Company at the address of the Principal Office; and (b) Notice to a Member shall be considered given when mailed by first-class mail postage prepaid, when personally delivered or when sent by facsimile transmission, addressed to the Member at the address reflected in this Agreement unless the Member has given the Company a Notice of a different address. "Organization" means a Person other than a natural person. Organization includes, without limitation, corporations (both nonprofit and other corporations), partnerships (including limited partnerships, general partnerships, limited liability partnerships and limited liability limited partnerships), joint ventures, limited liability companies, trusts, business trusts, cooperatives, unincorporated associations and other business entities, or any foreign trust or foreign business entities, but the term does not include joint tenancies and tenancies by the entirety. "Person" means an individual, trust, estate or Organization permitted to be a member of a limited liability company under Colorado law. "Proceeding" means any judicial or administrative trial, hearing or other activity, civil, criminal or investigative, the result of which may be that a court, arbitrator or governmental agency may enter a judgment, order, decree or other determination which, if not appealed and reversed, would be binding upon the Company, a Member or other Person subject to the jurisdiction of such court, arbitrator or governmental agency. "Property" means any property, real or personal, tangible or intangible (including goodwill), including Money and any legal or equitable interest in such property, but excluding services and promises to perform services in the future. "Regulations" means, except where the context indicates otherwise, the peuuanent, temporary, proposed or proposed and temporary regulations of Department of the Treasury under the Code as such regulations may be lawfully changed from time to time. "Related Person" means a person having a relationship to a Member that is described in Section 1.752-4(b) of the Regulations. "Remaining Members" means in the event of the Dissociation of a Member, all of the Members at the time of such Dissociation other than the Member who has Dissociated. In the event of a Member who has any potential conflict of interest or transaction between the Member and the Company, the term "Remaining Members" means the Members not having the potential conflict of interest or participating in the transaction. "Revaluation" or "Revalue" means the adjustment to the Book Value of Company Property as provided in Article VIII of this Agreement. "Revaluation Date" means the date on which a Revaluation Event occurs. "Revaluation Event" means (a) a Contribution (other than a de minimis amount); (b) a Liquidating Distribution (other than a de minimis amount); or (c) a liquidation of the Company. 02-43677.01 3 "Taxable Year" means the taxable year of the Company as determined pursuant to Section 706 of the Code. "Taxing Jurisdiction" means any state, local, or foreign government that collects tax, interest or penalties, however designated, on any Member's share of the income or gain attributable to the Company. ARTICLE II FORMATION Section 2.01. Organization. The Members hereby organize the Company as a Colorado limited liability company pursuant to the provisions of the Act. Section 2.02. Name. The name of the Company is PYNERGY, LLC, and all business of the Company shall be conducted under that name or under any other name, but in any case, only to the extent permitted by applicable law. Section 2.03. Effective Date. This Agreement shall become effective upon the filing of the Articles with the Colorado Secretary of State. Section 2.04. Term. The Company shall be dissolved and its affairs wound up in accordance with the Act and this Agreement. Section 2.05. Registered Agent and Office. The registered agent for the service of process and the registered office shall be that Person and location reflected in the Articles as filed in the office of the Secretary of State. The Members may, from time to time, change the registered agent or office through appropriate filings with the Secretary of State. Section 2.06. Principal Office. The Principal Office of the Company shall be located at 1500 Leyden Street, Denver, Colorado 80224. Section 2.07. Nature of Business. The Company is organized for all lawful purposes for which limited liability companies may be organized under the laws of the State of Colorado, and engaging in all activities that may further and are consistent with such objectives and purposes. Section 2.08. Certificates of Membership Interests. The Members of the Company may make such rules and regulations as are consistent with this Agreement and as they may deem appropriate concerning the issuance and registration of Interests in the Company. The Members may authorize the issuance of Interests without certificates. ARTICLE III ACCOUNTING AND RECORDS Section 3.01. Records to be Maintained. The Members shall maintain at the Principal Office all records so required by the Act. 02-43677.01 4 Section 3.02. Reports to Members. The Company shall provide reports to the Members at such time and in such manner as the Members may determine reasonable, as well as the information returns required by the Code and the laws of any state. ARTICLE IV MEMBERS AND CAPITAL Section 4.01. Contributions to Capital. The Initial Contributions and Commitments of the Members to the Company are or shall be as set forth on Exhibit A attached hereto. No Member is entitled to the return of all or any part of such Member's Contribution, except as provided in this Agreement, and no Member shall have the right to bring an action for partition against the Company with respect to the Company assets. The Members shall not receive interest on their Contributions subsequent to their admission to the Company. Except as expressly provided in this Agreement, under circumstances requiring a return of any Contribution, no Member shall have the right to receive property other than cash, and no Member shall have priority over any other Member with respect to a return of such Member's Contribution or to Distributions. Each Member shall look solely to the assets of the Company for the return of such Member's Contribution, and if the assets of the Company are insufficient to return such Member's Contribution, such Member shall have no recourse against any other Member or Person for that purpose. Section 4.02. Additional Contributions. In addition to the Initial Contributions and Commitments, a Majority of the Members may determine from time to time that additional contributions are needed to enable the Company to conduct its business. Each Member shall have the opportunity (but not the obligation) to make such additional contributions in accordance with his, her or its Allocation Interest. Except to the extent of a Member's unpaid Commitment, no Member shall be obligated to make any such additional contributions. In the event that any one or more Members do not make their additional contribution, the other Members shall be given the opportunity to make the contribution. Each Additional Member shall make the Contribution to which such Member has agreed, at the time or times and upon the terms to which a Majority of the Members and the Additional Member agree. Section 4.03. Capital Accounts. The Company shall maintain a separate Capital Account for each Member in accordance with the provisions set forth in Article VII of this Agreement. Section 4.04. Limited Liability. No Member shall have any personal liability in such Member's capacity as a Member, whether to the Company, to any of the Members or to the creditors of the Company, for the debts, liabilities, contracts or any other obligations (including any judgments, decrees or orders of a court) of the Company or for any losses of the Company, except as set forth in this Agreement, the Act and other applicable law. Section 4.05. Interests. Each Member's respective Allocation Interest in the Company is set forth on Exhibit A attached hereto. The Members hereby agree as follows with respect to their Interests: 0243677.01 5 (a) Except as expressly provided in this Agreement, each Member shall have voting rights equal to such Member's Interest set forth on Exhibit A hereto, on matters on which each such Member may vote under this Agreement and/or the Act, and the Interest set forth opposite each Member's name on Exhibit A attached hereto shall be sdch Member's Interest in the Company's profits, income, gains, credits and cash flows subject to the provisions of Article VIII. Each Member hereby agrees that such Member's interest in the Company and in such Member's Interest shall for all purposes be deemed a personal interest and shall not be deemed really or any interest in the Company's real or personal property or assets of any kind. (b) Notwithstanding any provision contained herein, in the event of deadlock on matters on which the Members may vote under this Agreement and/or the Act, the President shall cast the deciding vote. ARTICLE V RIGHTS AND DUTIES OF MEMBERS Section 5.01. Admission of New Members. After the filing of the Company's original Articles, a person may be admitted as an Additional Member only upon the written Consent of a Majority of the Members and the satisfaction of any applicable requirements set forth in Article XII. Section 5.02. Transactions Between a Member and the Company. No transaction with the Company shall be voidable solely because a Member has a direct or indirect interest in the transaction if either the transaction is fair to the Company, or a Majority of the Remaining Members knowing the material facts of the transaction and the Member's interest, authorize, approve or ratify the transaction. Section 5.03. Resignations. A Member may not resign from the Company unless: (a) such Member has contributed the full amount of Money or other consideration which constitutes such Member's Contribution as set forth on Exhibit A hereto; (b) following the Member's resignation, there is at least one (1) Remaining Member of the Company; and (c) all Remaining Members have given their Consent to such Member's resignation. The Company may recover damages for breach of this Section if any Member violates this Section and may offset the Company's damages against any amount owed to a resigning Member for Distributions. ARTICLE VI MANAGEMENT BY MEMBERS Section 6.01. Management. The business and affairs of the Company shall be managed by the Members. The Members shall direct, manage and control the business of the Company to the best of their ability. The Members shall have full and complete authority, power and discretion to manage and control the business, affairs and properties of the Company, to make all 02-43677.01 6 decisions regarding those matters and to perform any and all other acts or activities customary or incident to the management of the Company's business and objectives. Section 6.02. Officers. The Members may elect a President, Secretary and Treasurer and such other officers or agents as they deem necessary for the operation and management of the Company, with such powers, rights, duties and responsibilities as may be determined by the Members. Any of the positions, or functions of those positions may be held by the same person. An officer need not be a Member. All officers and agents shall be natural persons. Each officer shall hold office for a term of one (1) year until the annual meeting of Members following his or her election or until his or her successor shall have been elected and qualified. Section 6.03. Certain Powers. (a) Without limiting the generality of Section 6.01 and subject to Section 6.04 the Members or such officers to whom the Members delegate such authority, shall have power and authority to do any or all of the acts set forth in the Act as amended from time to time, including without limitation, such other acts as the Members may determine to be necessary or appropriate to the conduct of the Company's business. (b) Unless authorized to do so by this Agreement or by a Majority of the Members, no attorney -in -fact, employee or other agent of the Company shall have any power or authority to bind the Company in any way, to pledge its credit or to render it liable pecuniarily for any purpose. No Member shall have any power or authority to bind the Company unless the Member has been authorized in writing by the a Majority of the Members to act as an agent of the Company in accordance with the previous sentence. Section 6.04. General Restrictions on Authority. (a) No officer or any Member shall have the authority to do any of the following without the Consent of all of the Members: (i) Cause the Company to take voluntarily any action that would necessarily result in the Company's becoming a debtor in a proceeding under any chapter of the federal Bankruptcy Code, as amended from time to time; (ii) Amend this Operating Agreement or the Articles; (iii) Cause the Company to incur extraordinary indebtedness outside of the ordinary course of business in any single transaction or series of related transactions in excess of $30,000; (iv) Approve the merger, exchange or consolidation of the Company with any Organization that is not an affiliate of the Company; (v) Dissolve or liquidate the Company; (vi) Sell or transfer all or a significant part of the Company's assets; and/or 02-43677.01 7 (vii) Take any other act or function which requires the approval or consent of all of the other members by the terms of this Operating Agreement or by the provisions of the Colorado Limited Liability Company Act. Section 6.05. Compensation. The compensation of the officers shall be fixed from time to time by the Members, and no officer shall be prevented from receiving such compensation by reason of the fact that he, she or it also is a Member of the Company. Section 6.06. Non -Liability of Members and Officers. Each Member and officer shall perform his or her duties as Members and officers in good faith, in a manner he or she reasonably believes to be in the best interests of the Company, and with such care as an ordinarily prudent person in a like position would use under similar circumstances. A Member or officer who so performs his or her duties as a Member or officer shall have no liability by reason of being or having been a Member or officer of the Company. No Member or officer in any way guarantees the return of any Member's Contribution or a profit for any Member from the operations of the Company. No Member or officer shall be liable to the Company or to any Member for any loss or damage sustained by the Company or any Member, unless the loss or damage is the result of fraud, gross negligence, willful misconduct, knowing violation of law, willful breach of this Agreement or a knowing breach of fiduciary duty by the Member or officer. In discharging his or her duties, a Member and officer shall be protected in relying in good faith on the records required to be maintained under Article III and upon such information, opinions, reports or statements by any of the other Members, officer, or agents, or by any other person, as to matters the Member or officer reasonably believes are within such person's professional or expert competence, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits or losses of the Company or any other facts pertinent to whether Distributions to Members may properly be paid. Section 6.07. Voting Rights. Each Member shall be entitled to cast that number of votes equal to his, her or its Allocation Interest set forth on Exhibit A hereto (a) at a meeting, in person or by written proxy; or (b) without a meeting, by a signed writing directing the manner in which such Member desires that such Member's vote be cast, which writing must be received by the Secretary prior to the date upon which the votes of the Members are to be counted. In the event that the Members cannot obtain a Majority, but only in such event, the President shall have the right to cast one vote to decide the contested matter, as set forth in Section 4.06(bl. Section 6.08. Annual Meeting. The annual meeting of the Members shall be held [within thirty (30) days of the end of the first quarter of each year, for at such other time as shall be determined by resolution of the Members, commencing with the year 2000, for the purpose of the transaction of such business as may come before the meeting. Section 6.09. Special Meetings. Special meetings of the Members, for any purpose or purposes, unless otherwise prescribed by statute, may be called by any officer or any Member. Section 6.10. Place of Meeting. The Members may designate any place, either within or outside the State of Colorado, as the place of meeting for any meeting of the Members. If no 02-43677.01 8 designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal place of business of the Company as referenced in Section 2.07 above. Section 6.11. Notice of Meetings. Except as provided in Section 6.13, written Notice stating the place, day and hour of the meeting and the purpose or purposes for which the meeting is called shall be delivered to each Member not less than five (5) days nor more than sixty (60) days before the date of the meeting, by or at the direction of the officer(s) or Member(s) calling the meeting. Section 6.12. Meeting of all Members. If all of the Members shall meet at any time and place, either within or outside of the State of Colorado, and consent to the holding of a meeting at such time and place, such meeting shall be valid without call or Notice, and at such meeting lawful action may be taken. Section 6.13. Record Date. For the purpose of determining Members entitled to Notice of or to vote at any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any Distribution, or in order to make a determination of Members for any other purpose, the date on which Notice of the meeting is mailed, personally delivered or sent via facsimile transmission, or the date on which the resolution declaring such Distribution is adopted, as the case may be, shall be the record date for such determination of Members. When a determination of Members entitled to vote at any meeting of Members has been made as provided in this Section, such determination shall apply to any adjournment thereof. Section 6.14. Quorum. A Majority of the Members, represented in person or by proxy, shall constitute a quorum at any meeting of the Members. In the absence of a quorum at any such meeting, a Majority of the Member Interests so represented may adjourn the meeting from time to time for a period not to exceed sixty (60) days without further Notice. If the adjournment, however, is for more than sixty (60) days, or if after the adjournment a new record date is fixed for the adjourned meeting, Notice of the adjourned meeting shall be given to each Member of record. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. The Members present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal during such meeting of that number of Member Interests whose absence would cause less than a quorum. Section 6.15. Manner of Acting. If a quorum is present, the affirmative vote of a Majority of Members shall be the act of the Members, unless the vote of a greater or lesser proportion or number is otherwise required by this Agreement, the Articles and/or the Act. Section 6.16. Proxies. At all meetings of Members, a Member may vote in person or by proxy executed in writing by the Member or by a duly authorized attorney -in -fact. Such proxy shall be filed with the Secretary of the Company before or at the time of the meeting. No proxy shall be valid after eleven (11) months from the date of its execution, unless otherwise provided in the proxy. Section 6.17. Action by Members Without a Meeting. Action required or permitted to be taken at a meeting of Members may be taken without a meeting pursuant to C.R.S. §7-80-711 0243677.01 9 if the action is evidenced by one or more written Consents describing the action taken, signed by each Member entitled to vote thereon and delivered to the Secretary of the Company for inclusion in the minutes or for filing with the Company records. Action taken under this Section is effective when all Members entitled to vote thereon have signed the Consent, unless the Consent specifies a different effective date. The record date for determining Members entitled to take action without a meeting shall be the date the first Member signs a written Consent. Section 6.18. Waiver of Notice. When any Notice is required to be given to any Member, a waiver thereof in writing signed by the person entitled to such Notice, whether before, at or after the time stated therein, shall be equivalent to the giving of such Notice. Section 6.19. Participation by Electronic Communications. A Member may participate in a Member's meeting by any means of communication through which the Member, other Members so participating, and all Members physically present at the meeting may simultaneously hear each other during the meeting. Members so participating shall be deemed present in person at the meeting. Section 6.20. Committees. The Members may by resolution establish committees having such powers as may be set forth in the resolution, to the extent that the Members may legally delegate such powers. Committees shall be subject at all times to the direction and control of the Members. A committee shall consist of two or more natural persons, who shall be Members, appointed by the Members. Sections 6.06. 6.10. 6.16 and 6.18 through 6.20 hereof shall apply to committees and members of committees to the same extent as those sections apply to the Members, except that, with respect to Section 6.15, a Majority of the committee members shall be necessary to constitute a quorum for the transaction of business, and, with respect to Section 6.16, a committee shall take action as a group by the vote of a Majority of its members. Minutes, if any, of committee meetings shall be made available upon request to members of the committee, to any Member. Section 6.21. Members and Officers Have No Exclusive Duty to Company. Nothing in this Agreement shall, by itself, be construed to require any Member or officer to manage the Company as such Member's or officer's sole and exclusive function and, subject to contrary provisions of any other agreement to which a Member or officer may be a party, a Member or officer may have other business interests and may engage in other activities. Neither the Company nor any Member or officer shall have any right, solely by virtue of this Agreement, to share or participate in such other investments or activities of any Member or officer or to any income or proceeds derived therefrom. Section 6.22. Conflicts of Interest No contract or transaction between the Company and one or more of its Members, or between the Company and any other corporation, partnership, association, or other organization in which one or more of the Company's Members are members, managers, directors or officers or have a financial interest, shall be void or voidable solely for that reason, or solely because the Member is present at or participates in the meeting of the Members or committee thereof which authorizes, approves, or ratifies the contract or transaction, or solely because his, her or their votes are counted for such purpose if a Majority of the Remaining Members, knowing the material facts of the transaction and the Member's interest, authorize, approve or ratify the transaction; a Majority of the Members, knowing the 0243677.01 10 material facts of the transaction and the Member's interest, authorize, approve or ratify the transaction; or the transaction is fair as to the Company as of the time it is authorized, approved, or ratified by the Members. Common or interested Members may be counted in determining the presence of a quorum at a meeting of the Members or of a committee which authorizes, approves, or ratifies the contract or transaction. ARTICLE VII CAPITAL ACCOUNTS Section 7.01. Maintenance of Capital Accounts. The Company shall establish and maintain a Capital Account for each Member. Each Member's Capital Account shall be increased by (a) the amount of any Money actually contributed by the Member to the capital of the Company; (b) the fair market value of any Property (other than Money) contributed, as determined by the Company and the Contributing Member at arm's -length at the time of Contribution (net of liabilities assumed by the Company or subject to which the Company takes such Property, within the meaning of Section 752 of the Code); and (c) the Member's share of Net Profits and of any separately allocated items of income or gain except adjustments of the Code (including income and gain exempt from tax and adjustments to income and gain as a result of a Revaluation or in connection with the Contribution of Property in the manner described in Section 1.704-1(b)(2)(iv)(g) to reflect the difference between the difference between the Book Value and the adjusted basis of Company Property, but excluding allocations of income and gain described in Section 1.704-1(b)(4)(i) of the Regulations under which such difference is reflected for tax purposes). Each Member's Capital Account shall be decreased by (i) the amount of any Money distributed to the Member by the Company; (ii) the fair market value of any Distribution of Property to the Member, as determined by the Company and the Member receiving the Distribution at aim's -length at the time of Distribution (net of liabilities of the Company assumed by the Member or subject to which the Member takes such Property within the meaning of Section 752 of the Code); and (iii) the Member's share of Net Losses and of any separately allocated items of Net Loss (including adjustments for depreciation, depletion, amortization, and loss as a result of a Revaluation or in connection with the Contribution of Property in the manner described in Section 1.704-1(b)(2)(iv)(g) to reflect the difference between the difference between the Book Value and the adjusted basis of Company Property, but excluding allocations of depreciation, depletion, amortization and loss described in Section 1.704-1(b)(4)(i) of the Regulations under which such difference is reflected for tax purposes). Section 7.02. Distribution of Assets. If the Company at any time makes a Distribution of any of the Company Property (other than Money) in -kind to any Member, the Capital Account of each Member shall be adjusted to account for the Member's allocable share (as determined under Article VIII below) of the Net Profits or Net Losses that would have been realized by the Company had it sold the assets that were distributed at their respective fair market values immediately prior to their Distribution. Section 7.03. Sale or Exchange of Interest In the event of a sale or exchange of some or all of an Interest, the Capital Account of the transferring Member shall become the Capital 02-43677.01 11 Account of the Additional Member, to the extent it relates to the portion of the Interest transferred. Section 7.04. Revaluation of Partnership Property. The Capital Accounts of the Members shall be increased or decreased to reflect a Revaluation of Company Property (including intangible assets such as goodwill) on the Company's books in connection with a Revaluation Event. Upon such Revaluation: (a) the Book Value of Company Property shall be adjusted based on the fair market value of Company Property (taking Section 7701(g) of the Code into account) on the Revaluation Date; and (b) the unrealized income, gain, loss, or deduction inherent in such Company Property (that has not been reflected in the Capital Accounts previously) shall be allocated among the Members as if there were a taxable disposition of such Company Property for such fair market value on the Revaluation Date. Section 7.05. Compliance with Section 704(b) of the Code. The provisions of this Article VII as they relate to the maintenance of Capital Accounts are intended, and shall be construed, and, if necessary, modified to cause the allocations of profits, losses, income, gain and credit pursuant to Article VIII to have substantial economic effect under the Regulations promulgated under Section 704(b) of the Code, in light of the Distributions made pursuant to Article VIII and the Contributions made pursuant to this Article. Notwithstanding anything herein to the contrary, this Agreement shall not be construed as creating a deficit restoration obligation or otherwise personally obligating any Member or Additional Member to make a Contribution in excess of the Initial Contribution, Additional Contribution and Commitment of the Member or Additional Member. ARTICLE VIII ALLOCATIONS AND DISTRIBUTIONS Section 8.01.Allocations of Net Profits and Net Losses. Except as may be required by Section 704(c) of the Code, and Sections 8.02. 8.03 and 8.04 of this Article VIII, Net Profits and Net Losses shall be allocated among the Members in proportion to their Allocation Interests. Section 8.02. Company Minimum Gain Chargeback. If there is a net decrease in Company Minimum Gain for a Taxable Year, each Member must be allocated items of income and gain for that Taxable Year equal to that Member's share of the net decrease in Company Minimum Gain. A Member's share of the net decrease in Company Minimum Gain is the amount of the total net decrease multiplied by the Member's percentage share of the Company Minimum Gain at the end of the immediately preceding Taxable Year. A Member's share of any decrease in Company Minimum Gain resulting from a Revaluation of Company Property equals the increase in the Member's Capital Account attributable to the Revaluation to the extent that the reduction in minimum gain is caused by the Revaluation. A Member is not subject to the Company Minimum Gain Chargeback Requirement to the extent that the Member's share of the net decrease in Company Minimum Gain is caused by a guarantee, refinancing or other change in the debt instrument causing it to become partially or wholly a Recourse Liability or a Member Nonrecourse Liability, and the Member bears the economic risk of loss (within the meaning of Section 1.752-2 of the Regulations) for the newly guaranteed, refinanced or otherwise changed liability. 02-43677.01 12 Section 8.03. Member Minimum Gain Chargeback. If during a Taxable Year theie is a net decrease in Member Minimum Gain, any Member with a share of that Member Minimum Gain ("partner minimum gain" as determined under Section 1.704-2(i)(5) of the Regulations) as of the beginning of that Taxable Year must be allocated items of income and gain for that Taxable Year (and, if necessary, for succeeding Taxable Years) equal to that Member's share of the net decrease in the Company Minimum Gain. A Member's share of the net decrease in Member Minimum Gain is determined in a manner consistent with the provisions of Section 1.704-2(g)(2) of the Regulations. A Member is not subject to this Member Minimum Gain Chargeback, however, to the extent that the net decrease in Member Minimum Gain arises because the liability ceases to be Member Nonrecourse Liability due to a conversion, refinancing, or other change in the debt instrument that causes it to become partially or wholly a Company Nonrecourse Liability. The amount that would otherwise be subject to the Member Minimum Gain Chargeback is added to the Member's share of Company Minimum Gain. In addition, rules consistent with those applicable to Company Minimum Gain shall be applied to determine the shares of Member Minimum Gain and Member Minimum Gain Chargeback to the extent provided under the Regulations issued pursuant to Section 704(b) of the Code. Section 8.04. Qualified Income Offset. Notwithstanding any provision of this Agreement to the contrary (other than Sections 8.02 and 8.03 above), in the event that a deficit in a Member's Capital Account is created or increased (taking into account any allocations, adjustments, or distributions described in Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6)) in excess of such Member's share of Company Minimum Gain and Member Minimum Gain, plus any amount that the Member is obligated to restore to the Company, such Member will be allocated items of income and gain (consisting of a pro rata portion of each item of partnership income and gain for such year) in an amount and manner sufficient to offset the same as quickly as possible. Section 8.05. Interim Distributions. From time to time, a Majority of the Members shall determine in their reasonable judgment to what extent, if any, the Company's cash on hand exceeds the current and anticipated needs, including, without limitation, needs for operating expenses, debt service, acquisitions, reserves and mandatory Distributions, if any. To the extent such excess exists, the Company may make Distributions to the Members in accordance with the terms and conditions set forth in Section 8.08 below. Such Distributions shall be in cash or Property (which need not be distributed proportionately) or partly in both, as determined by the Members. All interim distributions which, when made, exceed the recipient Member's basis in that Member's Interest shall be considered advances or drawings against the Member's distributive share of net income. To the extent it is determined at the end of the Taxable Year of the Company that the recipient Member has not been allocated net income that equals or exceeds the total of such advances or drawings for such year, the recipient Member shall be obligated to restore any such advances or drawings to the Company. Notwithstanding the foregoing sentence, the Member will not be required to restore such advances or drawings to the extent that, on the last day of the Taxable Year, the recipient Member's basis in the Member's Interest in the Company has increased from the time of such advance or drawing. Section 8.06. Limitations on Distributions. No Distribution shall be declared and paid unless, after the Distribution is made, the assets of the Company are in excess of all liabilities of the Company, except liabilities to Members on account of their Capital Accounts. 02-43677.01 13 Section 8.07. Modification of Maintenance of Capital Accounts. (a) The foregoing provisions and other provisions of this Agreement relating to maintenance of Capital Accounts are intended to comply with Treasury Regulation Section 1.704-1(b), and shall be interpreted and applied in a manner consistent with such regulation. In the event that the President and the Treasurer of the Company shall determine, upon the advice of the Company's accountants, that it is prudent to modify the manner in which the Capital Accounts or any debits or credits thereto, are computed in order to comply with such regulations, the President and the Treasurer, acting in accordance with Section 14 03 and without the approval of the Members, may amend the Agreement to reflect such modification, provided that it is not likely to have a material effect on the Distribution of amounts to the Members pursuant to Article XIII upon dissolution of the Company. (b) Subject to this Article VIII, the President and Treasurer also shall make any adjustments that are necessary or appropriate to maintain equality between the Capital Accounts of the Members, and the amount of Company capital reflected on the Company's balance sheet, as computed for book purposes, in accordance with Regulations Section 1.704-1(b)(2)(iv)(q). Section 8.08. Priority of Distributions. All Distributions shall be made in the following priority: (a) First, payments to creditors to the extent permitted by law, in satisfaction of Company liabilities; and (b) Second, to the extent that the Company has Net Profits, payments in an amount equal to Net Profits shall be allocated to the Members in accordance with their respective Allocation Interests. ARTICLE IX TAXES Section 9.01. Elections. The President and Treasurer of the Company may make any tax elections for the Company allowed under the Code or the tax laws of any state or other jurisdiction having taxing jurisdiction over the Company. Section 9.02. Taxes of Taxing Jurisdictions. To the extent that the laws of any Taxing Jurisdiction require, each Member and economic interest holder (or such Members as may be required by the Taxing Jurisdiction) will submit an agreement indicating that the Member will make timely income tax payments to the Taxing Jurisdiction and that the Member accepts personal jurisdiction of the Taxing Jurisdiction with regard to the collection of income taxes attributable to the Member's income, and interest and penalties assessed on such income. If the Member fails to provide such agreement, the Company may withhold and pay over to such Taxing Jurisdiction the amount of tax, penalty and interest determined under the laws of the 0243677.01 14 Taxing Jurisdiction with respect to such income. Any such payments with respect to the income of a Member shall be treated as a Distribution for purposes of Article VIII. The President and Treasurer may, where permitted by the rules of any Taxing Jurisdiction, file a composite, combined or aggregate tax return reflecting the income of the Company and pay the tax, interest and penalties of some or all of the Members on such income to the Taxing Jurisdiction, in which case the Company shall inform the Members of the amount of such tax interest and penalties so paid. Section 9.03. Tax Matters Partners. The Treasurer shall serve as the tax matters partners of the Company pursuant to Section 6231(a)(7) of the Code. Section 9.04. Fiscal Year. The fiscal year of the Company for tax purposes shall end on December 31 of each year unless the provisions of Section 706 of the Code require otherwise. ARTICLE X DISPOSITION OF INTERESTS Section 10.01. Disposition. No Member may Dispose of all or a portion of the Member's Interest unless such Disposition is previously approved by a Majority of the Members. No Interest shall be Disposed of: (a) If such Disposition, alone or when combined with other transactions, would result in a termination of the Company within the meaning of Section 708 of the Code; (b) Without an opinion of counsel satisfactory to the President that any assignment is subject to an effective registration under, or exempt from the registration requirements of, the applicable state and federal securities laws; (c) Unless and until the Company receives from the proposed transferee the information and agreements that the President and Treasurer may reasonably require, including but not limited to any taxpayer identification number and any agreement that may be required by any Taxing Jurisdiction; and (d) Unless and until the Company receives from the proposed transferee the information and agreements that the President and Treasurer may require, including but not limited to, the proposed transferee's execution of this Agreement and any amendments thereto. Section 10.02. Payment of Costs. All costs, including reasonable attorneys' fees and accounting fees, incurred in connection with a Disposition of a Member's Interest, shall be paid by the proposed transferee and such payment shall be a condition precedent to any such Disposition. Section 10.03. Dispositions not in Compliance with this Article Void. Any attempted Disposition of a Member's Interest, or any part thereof, not in compliance with this Article X shall be, and is declared to be, null and void ab initio. In the event that any Member Disposes 0243677.0t 15 of his, her or its Interest in violation of this Article X, such Member, without further action by the Company or the Remaining Members, shall lose and forfeit his, her or its Interest in the Company as of the date such alleged Disposition took place and the Company shall owe the Member no consideration, remuneration or any other form of obligation as a result -of the forfeiture of that Member's Interest. The Member's Interest so forfeited shall be allocated among the Remaining Members in accordance with the Allocation Interest of each Remaining Member. Section 10.04. Exceptions. Notwithstanding any other provision of the Agreement, if at any time there is only one Member of the Company or affiliate organization, all or a portion of that Member's Interest may be Disposed of in any manner provided by law, and, upon such Disposition, the transferee shall become a Member without further action on the part of the transferee, the Company or the Member. ARTICLE XI DISSOCIATION OF A MEMBER Section 11.01. Dissociation. A Person shall cease to be a Member upon the happening of any of the following events (which events shall be deemed an "Involuntary Dissociation"): (a) The Member's becoming a Bankrupt Member; (b) In the case of a Member who is acting as a Member by virtue of being a trustee of a trust, the termination of the trust (but not merely the substitution of a new trustee); (c) In the case of a Member that is a separate Organization other than a corporation, the dissolution and commencement of winding up of the separate Organization; or (d) In the case of a Member that is a corporation, the filing of a certificate of dissolution, or its equivalent, for the corporation or the revocation of its charter. Section 11.02. Purchase of Dissociated Member's Interest. (a) Upon a voluntary or Involuntary Dissociation of a Member, the Dissociated Member's Interest shall be purchased by the Company for a purchase price equal to the higher of either the Book Value (defined in Section 11.02(b) or the Agreed Value (defined in Section 11.02(c)). The purchase price of such interest shall be paid by the Company to the Member in cash within sixty (60) days of determination thereof or, at the Company's option, said debt may be evidenced by a promissory note bearing interest equal to the prime rate as announced by [insert name of bank] or its successors and assigns on the day immediately preceding the date of such promissory note, which shall be due and payable upon the earlier of (A) the expiration of three (3) years; or (B) the sale or other disposition of all of the Property. 02-43677.01 16 (b) "Book Value" shall be the value of the net aggregate Member's equity of the Company divided by the total number of Interests of the Company outstanding on the date on which said Book Value is computed and determined (as hereinafter provided); provided, however, that anything contained in this Section 11.02(b) to the contrary, the computation of such Book Value shall be subject to the following provisions: (i) In no event shall the determination of the Book Value include any proceeds collected or collectible by the Company under any policy or policies of life insurance insuring the life of a Member or officer as a result of the death of such Member or officer. (ii) No additional allowance of any kind shall be made for the goodwill, trade names or any other intangible asset or assets (hereinafter referred to as the "Intangible Assets") of the Company other than that aggregate dollar amount for any of such Intangible Assets appearing on the most recent balance sheet of the Company prior to those dates set forth below for determining Book Value. (iii) The Book Value shall be computed and determined as of the end of the last month immediately preceding the month in which the Member becomes a Dissociated Member. (iv) The Book Value shall be determined in accordance with generally accepted accounting principles applied in a consistent manner with prior periods, by the independent accountant at that time examining the books and accounts of the Company or, if there be none, then by the last independent accountant who had performed such services for the Company, and a determination by such independent accountant, for purposes of this Agreement, shall be final, conclusive and binding upon each of the Members hereto; provided, however, that anything contained in this Agreement to the contrary, Book Value shall be calculated for the purposes of this Agreement on an accrual basis even if the Company shall have utilized cash basis accounting principles in any prior period. (c) "Agreed Value" shall be the per Unit dollar amount last agreed upon in writing by all of the Members, which agreement shall be dated and filed with the records of the Company and shall be in the form as set forth in Exhibit B attached hereto and incorporated herein. Section 11.03. Damages. The provisions set forth herein shall not affect any claim for damages that the Company may have against the Dissociated Member if such Dissociation is in violation of this Agreement. The Company shall have the right to offset any payments due under this Article XI by any damages that the Company may incur as a result of a Dissociation of a Member in contravention of this Agreement. Section 11.04. Buy -Sell Agreement. Notwithstanding any provision contained herein, once the Company has more than one Member, the Members agree to negotiate in good faith and to execute a Buy -Sell Agreement which shall control the transfer or Disposition of all or any part 02-43677.01 17 of a Member's Interest in the Company under certain circumstances, including without limitation, the death, disability or Dissociation of a Member, the transfer of a Member's Interest to a third party and the cessation of employment (for any reason whatsoever) of a Member employed by the Company, and the Members agree that such Buy -Sell Agreement shall supersede any provisions contained in this Agreement and shall control any disposition of a Member's Interest in the Company. Section 11.05. Exception for Single Member Company. Notwithstanding any other provision of the Agreement, on the Dissociation of the Member who is the only Member of the Company, the Person succeeding to the Member's Interest as a result of such Dissociation shall become a Member without further action on the part of the transferee, the Company or the Member. ARTICLE XII ADMISSION OF ADDITIONAL MEMBERS Section 12.01. Admission of Additional Members. The approval of a Majority of the Members is required to admit Additional Members, to determine the Contributions of such Members, and to determine the effect, if any, that the admission of such Additional Member will have on the Allocation Interest of the Members. Section 12.02. Exception for Single Member Company. Notwithstanding any other provision of the Agreement, at any time that there is only one Member of the Company, all or a portion of that Member's Interest may be Disposed of in any manner provided by law, and, upon such Disposition, the transferee shall become a Member without further action on the part of the transferee, the Company or the Member. Section 12.03. Allocations. No Additional Member shall be entitled to any retroactive allocation of losses, income or expense deductions incurred by the Company. At the time that an Additional Member is admitted, the President and Treasurer, in their sole discretion, may close the Company's books (as though the Company's tax year had ended) or make pro rata allocations of loss, income and expense deductions to a Additional Member for that portion of the Company's tax year in which or Additional Member was admitted in accordance with the provisions of Section 706(d) of the Code and the Regulations promulgated thereunder. ARTICLE XIII DISSOLUTION AND WINDING UP Section 13.01. Dissolution. The Company shall be dissolved and its affairs wound up, upon the first to occur of the following events: (a) The resignation of all officers, unless all Members give their written Consent to the continuation of the business of the Company and to fill the officer vacancies as provided in this Agreement; (b) The unanimous written Consent of all of the Members; or 02-43677.01 18 partnership under federal or state law or for other tax purposes, may be made by the President and Treasurer without the necessity of a vote of the Members. Section 14.03. Amendments on Admission or Withdrawal of Members. (a) If this Agreement shall be amended to reflect the admission or substitution of a Member, such amendment shall be signed by the Additional Member. (b) No Person shall become a Member unless such Person: (i) Shall have adopted and agreed to all of the terms and conditions of this Agreement; (ii) If such Person is a corporation or other Organization, shall have provided to the President and Treasurer evidence satisfactory to counsel for the Company of such Person's authority to become a Member under the terms and provisions of this Agreement and such entity's charter or governing documents; and (iii) Shall have paid all reasonable expenses and legal fees of the Company in connection with such Person becoming a Member. ARTICLE XV MISCELLANEOUS PROVISIONS Section 15.01. Indemnification of Members, Officers, Employees and Agents. The Company shall indemnify every Member, officer, employee and agent as provided under applicable law, including § 7-80-410, C.R.S., for any act or omission performed or omitted in good faith and in a manner believed by them to be within the scope of the authority granted to them by this Agreement and in the best interests of the Company; provided, however, that such act or omission did not constitute fraud, gross negligence or willful misconduct. Section 15.02. Entire Agreement. This Agreement represents the entire agreement among all of the parties hereto. Section 15.03. No Partnership Intended for Nontax Purposes. The Members have formed the Company under the Act, and, except for federal income tax purposes, expressly do not intend hereby to form a partnership under either the Colorado Uniform Partnership Act nor the Colorado Uniform Limited Partnership Act. The Members do not intend to be partners one to another, or partners as to any third party. To the extent that any Member, by word or action, represents to another person that any other Member is a partner or that the Company is a partnership, the Member making such wrongful representation shall be liable to any other Member who is' incurs personal liability by reason of such wrongful representation. Section 15.04. Rights of Creditors and Third Parties under Agreement. This Agreement is entered into among the Company and the Members for the exclusive benefit of the Company and its Members, and their permitted successors and assignees. This Agreement is 02-43677.01 20 expressly not intended for the benefit of any creditor of the Company or any other Person. Except and only to the extent provided by applicable statute, no such creditor or third party shall have any rights under this Agreement or any agreement between the Company and any Member with respect to any Contribution or otherwise. - Section 15.05. Facsimile; Counterparts. Signatures on this Agreement may be communicated by facsimile transmission and shall be binding upon the parties transmitting the same by facsimile transmission. Counterparts with original signatures shall be provided to the other parties within five (5) calendar days of the applicable facsimile transmission; provided, however, that the failure to provide the original counterpart shall have no effect on the validity or the binding nature of this Agreement. If executed in counterparts, the Agreement shall be effective as if simultaneously executed. Section 15.06. Changes in Applicable Law. In the event that the requirements of applicable federal and state laws and regulations that relate to the ownership and operation of the Company are materially altered, or are reinterpreted by a competent tribunal or regulatory board or agency, so as to have a material adverse impact on the rights or interests of any Member, the Members shall attempt in good faith to renegotiate any affected provisions of this Agreement. Section 15.07. Arbitration. The parties to this Agreement agree that any disputes arising out of, or in connection with, the execution, interpretation, performance or nonperformance of this Agreement (including the validity, scope and enforceability of this arbitration provision) shall be settled by arbitration, which shall be conducted in Denver, Colorado pursuant to the then prevailing rules of the American Arbitration Association ("AAA"). The parties agree to facilitate the arbitration by (a) making available to one another and to the AAA for inspection and extraction all documents, books, records, and personnel under their control or under the control of a person controlling or controlled by such party if determined by the AAA to be relevant to the dispute; (b) conducting arbitration hearings to the greatest extent possible on successive business days; and (c) using their best efforts to observe the time periods established by the rules of the AAA for the submission of evidence and briefs. The decision of the arbitrators shall be final, binding and not subject to further review, and judgment on the award of the arbitrators may be entered in and enforced by any court having jurisdiction over the parties or their assets. Any costs incurred in conducting the arbitration shall be awarded to the prevailing party (as determined by the arbitrators). [Remainder of page intentionally left blank] 02-43677.01 21 IN WITNESS WHEREOF, we have hereunto set out hand and seals on the date set forth beside our names. CRENSHAW MANAGEMENT, Inc. a Colorado Corporation By: Nam Title: Frank Fisher Kenneth Walker 22 EXHIBIT A INITIAL CONTRIBUTIONS Member Crenshaw Management. Inc. 4755 Paris, #300 Denver, CO 80239 Glen Dilworth 1500 Leyden St Denver, CO 80220 Frank Fisher 5580 Havana St. Unit 2A Denver, CO 80239 Darrell Jackson 3157 S. Xenia Denver, CO 80231 Kenneth Walker 1500 Leyden Denver, CO 80220 Initial Contribution Allocation Interest $67,257.00 20% $67,257.00 20% $67,257.00 20% $29,892.00 Plus Services, including due diligence and accounting services 20% $67,257.00 20% 23 Fk ANC1AL QUESTIONNAIRE 6. Cash to be invested - C:c, The applicant hereby agrees that any knowingly false or incomplete answer to the following questions may constitute cause for the denial, suspension, or revocation of the license applied for: Trade Name Business Address \ Business Phone 1. Poi c. .3 Lit f;1 C�G:1�, c / 5 co L4 / ctc,41 J4.�w rig y4 2Z C.) '")'o- �5j Y SS 23 r Zip Code 2. Name of applicant or applicants: Aid c../tot, k S t^,24,'usl-k , •/ �,.� J , ( -S-1-t. SEAc f i.// Jr? C kS. kL 0,44-‘G, Gum 1 IC 4-j 3. If corporation, name of persons purchasing stock: SC f 7t, Z y'' c to (4 id 1. 5 -I. �. 4. If purchased, state purchase price including inventory: 5. If new application, what is the amount to be invested: 't5/ 4000 /.235'( t )t/d A 111 i J Y3l,ov,D too •g6'``"chi Where Obtained (Savings, Checking Account, etc.) Amount By Whom t-2a-frtkl..i r. K° // J,, c 1 J � " I 7,z5-7 wry, 5':1 2 e t y,f (,i bt:)c4..I k 4 1 7. Complete the following information on loans obtained - Name of Lender Address Citizenship Business (1) t.. (.? �. 5 + 8!s,.► PL), NN L./WS'4-0,4.446A 36, 6u 2 f3.,it)k., (2) (3) Amount of Loan Security Term of Obligation (1) 4/, 3.a3, 600 Al..,4/,d :'(.)104,r4•- /-2 •!r5 (2) (3) ELL 84 (Rev. 3/95) 53. Give name of bank where business account will be maintained: name the account will be maintained under; and the name or names of persons authorized to draw thereon. Sigiiat of Notary Public r 5 k vt.,? s LC-C- 1ia'a; t / ( j,4d s - 1 9. Applicant hereby agrees to notify the Director of Excise and Licenses of any changes in the financing of this business should the changes occur during the period for which this license is issued. (The following affidavit to be signed and acknowledged by individuals and each member of partnerships and by Corporation.) /� �! STATE OF COLORADO 1) w f c L. .Or-1So,-✓ , /"' do //oh 4...cC!:-..S U a 1 CS ✓.n4 it, /�v /t,,? / County of z N< -;c_ } SS. 0/4 ..--7 _�,%.J<i1L,,!?/h-.C 1. o, /—'544,e and , being by me first duly sworn, if for himself, deposes and says; that he is the applicant above named; or that he is Title named corporation; that he has read the foregoing application and that he knows the contents thereof, and that all matters and things therein set forth are true of his own knowledge, and he agrees to conform to all rules and regulations promulgated by the State Licensing Authority in connection therewith. 1 is vrr2 fie S of the above Individuals, members of partne hi s, managing members of re: CORPORATE SEAL Subscribed and sworn to before me this Z7 day of 19 Gi Corporate President or Secretary sign here: Corporate Name Attac)i "seal '� / /z . My commission expires // / 4-9/ By President or Secretary SUNTRUST August 13. 1999 Pynergy. LLC 1500 Leyden St. Denver. CO 80220 Ann: Darrell Jackson Re: Proposed Conoco -branded Facility Located in Denver. CO Dear Mr. Jackson: SunTrust Bank. Atlanta (" STBA" or the "Bank") is pleased to advise you of its commitment to make available to Pynergy. LLC (the Borrower"), a credit facility totaling the lesser of 85'1/1) of cost or appraised value. not to exceed S1.323.000 upon the terms and conditions set forth herein and in the attached Summary of Terms and Conditions, which are incorporated herein by reference (collectively referred to as the "Commitment Letter"). Please note. however. that the terms and conditions of this commitment are not limited to those set forth in this Commitment Letter and that any matters not specifically covered or made clear herein shall be subject to mutual agreement between the parties. The commitment evidenced by this Commitment Letter is for the benefit of the Borrower only. may not be assigned by the Borrower and may not be relied upon or enforced by any other person. This Commitment Letter is provided to you with the understanding that it shall not be disclosed to any other person or entity except advisors. officers, counsel, and accountants of the Borrower. who are involved in this transaction or except as such disclosure may be compelled in ajudicial or administrative proceeding or as otherwise required by law. Pynerm, LLC Conoco Loan Program Summary of Terms and Conditions I. DESCRIPTION OF FACILITY Lender: Borrowers: Amount: Description: Use of Proceeds: Loan Maturity: Loan Repayment: SunTrust Bank. Atlanta Pvnergv, LLC The Lesser of 85% of Cost or 85% of Appraised Value, not to exceed 51.323,000 Term Loan Facility Purchase of Conoco outlets. Twelve (12) years from closing Repayment will be made according to a mortgage style amortization. over a 12 year period. Payments will be made monthly via ACH debit. Rate Options: Interest earned will be calculated based on a 360 -day year for the actual number of days elapsed. Collateral: Fixed Rate Loans: Ten-year Treasury Rate 3.50% • First priority Deed Securing Debt or Deed of Trust/Mortgage on land and improvements. • First lien on equipment. • Personal guaranty and/or corporate guaranty from Borrower to Conoco. Collateral filing and legal fees will be paid by the Borrower. No liens or encumbrances on the collateral will be permitted without Lender's prior written consent. Conditions to Closing: Including. but not limited to: • Executed Right of First Refusal from Borrower to Conoco. • Title Insurance, issued by a title company approved by Lender, including deletions of all exceptions requested by Lender. SUNTRUST STRATEGIC CONFIDENTIAL PARTNER PROGRAMS August 13. 1999 Pynerg-y, LLC Conoco Loan Program Make -Whole Payment: • Surveys. shall be three-phase with ALTA certification in favor of Lender and Title Company. • Satisfactory Soils Investigation Report. • Proof of Zoning Compliance. • Storage tanks and lines must meet all EPA. State. and Local requirements. • MAI or SRA appraisal addressed to Lender. • Pollution liability insurance. • Property and liability insurance. • Certificate of Occupancy. • All requirements of Conoco's Preliminary Agreement Letter must be met. • New PMA with Conoco must be executed. Exhibit A of the PMA must list the new units. • Commitment Expiration: October 29. 1999. • Pynergy. LLC must furnish pro forma financials in a form satisfactory to SunTrust and Conoco. • Pynergy. LLC must furnish a Business Plan in a form satisfactory to SunTrust and Conoco. detailing sources of capital and strategy to address lack of experience. • Other conditions as may be required by Lender. • Other conditions as may be required by Conoco. Prepayments of fixed rate loans will contain customary make -whole language for fixed-rate funding breakage costs. Loan Origination Fee: 0.5% of loan amount payable to Lender at closing. Closing Costs: Events of Default: Collateral filing fees and any legal costs associated with loan closing to be paid Borrower. • Failure to pay any amount when due. • Insolvency. petition for bankruptcy. application for receivership, or general assignment for the benefit of creditors. • De -branding from Conoco. • Accounts Payable to Conoco not paid within 90 days of invoice. • Covenant Failure, failure of Representation and Warranties. • Cross Default to other credit agreements. • Sale of premise securing loans originated under this program. SUNTRUST STRATEGIC CONFIDENTIAL PARTNER PROGRAMS August I3. 1999 Pynergv, LLC Conoco Loan Program • Material adverse change. Yield Protection Provisions: Representations and Warranties: Customary provisions with respect to payment of withholding tax gross up amounts. suspension of LIBOR pricing options due to illegality or inability to ascertain funding costs. payment of reserve requirements. increased funding costs. capital adequacy compensation. any payment of breakage and redeployment costs in connection with fundings and repayments of LIBOR advances. As usual and customary in a transaction of this nature and size. including but not limited to the following: corporate organization and qualification, authorization, enforceability of documents. governmental approvals. no conflicts with Articles of Incorporation or other agreements. no material adverse change. disclosure, of material litigation, title to properties. location or principal place of business. tax returns tiled. no default. ERISA obligations, compliance with laws, and no material misstatements. Opinion Letter: Borrower's counsel shall provide at closing an opinion of Counsel in form acceptable to Lender. Evidence of Authorization: Borrower shall provide evidence satisfactory to the Lender that the Borrower (if a corporation or other form of organization) and all guarantors have taken all necessary corporate or other actions necessary to authorize the transactions contemplated herein. Governing Law: State of Georgia. SUNTRUST STRATEGIC CONFIDENTIAL PARTNER PROGRAMS August 13. 1999 P4nera . LLC August 13. 1999 Pace 2 This Commitment Letter supersedes in all respects any other written or oral communications between STBA and the Borrower prior to the date hereof regarding this transaction. If the terms set forth in this Commitment Letter are acceptable to you. please indicate by signing the enclosed duplicate of this Commitment Letter and returning it to the undersigned. The commitment contained in this Commitment Letter will expire October 29. 1999. if the Bank has not received a duly executed duplicate of this Commitment Letter prior thereto. Sincerely. SunTrust Bank. Atlanta By: (A, 'Pt- Y ot1 Te1ifry a lk4%vt2 Name: Anna Baumgardner Tide: Banking Officer Accepted and agreed this day of 19 Pvnergv. LLC Bc:�'; - V Name/Darrell Jackson Title: By: Name: Kenneth WaI er Titl'ra '444 ; 'Name: A.C1 Crenshaw Title: 4.1 dn,G.F B Jarrett Davis e: Director 12 -re -e iy&y 22- Hello