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Home My WebLink About20200981.tiffRESOLUTION RE: APPROVE TEMPORARY PERMIT FOR A FERMENTED MALT BEVERAGE OFF - PREMISES (COUNTY) LIQUOR LICENSE FOR 7 -ELEVEN, INC., DBA 7 -ELEVEN STORE 39510H, AND AUTHORIZE CHAIR TO SIGN 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, 7 -Eleven, Inc., dba 7 -Eleven Store 39510H, 3914 State Highway 119, Longmont, Colorado 80504, presented to the Board of County Commissioners of Weld County, Colorado, an application for a Transfer of Ownership of a Fermented Malt Beverage Off -Premises (County) Liquor License, for the sale of fermented malt beverages in sealed containers not for consumption at the place where sold, said License previously held by CARPCO, LLC, and 7 -Eleven, Inc., dba 7 -Eleven Store 39510A, and WHEREAS, C.R.S. §44-3-303, allows for the issuance by the Board of County Commissioners of a temporary permit to the transferee of an existing liquor license to authorize the transferee to conduct business and sell alcoholic beverages at retail in accordance with said license, subject to compliance with certain conditions, and WHEREAS, 7 -Eleven, Inc., dba 7 -Eleven Store 39510H, has complied with all of the conditions set forth in said Section, and WHEREAS, 7 -Eleven, Inc., dba 7 -Eleven Store 39510H, has also submitted the required application fee for said temporary permit of $100.00. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that having examined said application and other qualifications of the applicant for the transfer of the Fermented Malt Beverage Off -Premises (County) Liquor License and having considered said request for a temporary permit, does hereby grant to 7 -Eleven, Inc., dba 7 -Eleven Store 39510H, 3914 State Highway 119, Longmont, Colorado 80504, a Temporary Permit to conduct business and sell fermented malt beverages in sealed containers not for consumption at the place where sold, at retail at said location in accordance with the license previously held by CARPCO, LLC, and 7 -Eleven, Inc., dba 7 -Eleven Store 39510A, subject to all other rules and regulations set forth by the Board of County Commissioners of Weld County, Colorado, for a period of 120 days, or until such time as the application for Transfer of Ownership is approved by the State of Colorado, whichever shall occur first. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said permit. ec:cacEc), SoCm '/rale/ac). Co t_£(), aPPL, c.1-PPL R£.P 03(95fbloaO 2020-0981 LC0052 TEMPORARY PERMIT FOR FERMENTED MALT BEVERAGE OFF -PREMISES (COUNTY) LIQUOR LICENSE - 7 -ELEVEN, INC., DBA 7 -ELEVEN STORE 39510H PAGE 2 The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 25th day of March, A.D., 2020. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: dia, •Jdeo; Weld County Clerk to the Board ounty Attorney Date of signature: QZ/L)S00 �I�1-ems Mike Freeman, Chair Kevin D. Ross 2020-0981 LC0052 PLEASE POST NEAR EXISTING.LICENSE TO WHOM IT MAY CONCERN: On the 19th day of March, 2020, 7 -Eleven, Inc., dba 7 -Eleven Store 39510H, submitted an application for a Transfer of Ownership for a Fermented Malt Beverage Off -Premises (County) Liquor License, with said license previously being held by CARPCO, LLC, and 7 -Eleven, Inc., dba 7 -Eleven Store 39510A, and expiring on June 7, 2020. Until the Transfer of Ownership has been considered by the Board of Commissioners and notification has been received from the State advising whether this Transfer of Ownership request has been approved or disapproved, the Board hereby authorizes the continued sale of fermented malt beverages in sealed containers not for consumption at the place where sold, at this establishment, which is located at 3914 State Highway 119, Longmont, Colorado 80504, under a Temporary Permit, which has been approved by the Board on March 25, 2020. This Temporary Permit allows 7 -Eleven, Inc., dba 7 -Eleven Store 39510H, to conduct business and sell fermented malt beverages in sealed containers not for consumption at the place where sold, at retail at said location in accordance with the license previously held by CARPCO, LLC, and 7 -Eleven, Inc., dba 7 -Eleven Store 39510A, subject to all other rules and regulations set forth by the Board of County Commissioners of Weld County, Colorado, for a period of 120 days, or until such time as the application for Transfer of Ownership is approved by the State of Colorado, whichever shall occur first. If there are any questions concerning this matter, please feel free to contact the Weld County Clerk to the Board's Office at (970) 400-4213, between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday. Sincerely, BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO Mike Freeman, Chair cc: Deputy Clerk to the Board Supervisor, Chloe A. Rempel Assistant County Attorney, Bob Choate Weld County Sheriff's Office Colorado Liquor Enforcement Division 2020-0981 LC0052 DILL DILL VIA FEDERAL EXPRESS Rafaela Martinez, Liquor Clerk Weld County 1150 O Street Greeley, CO 80631 Direct Dial: 303-282-4130 Email: rspencer@dillanddill.com March 13 , 2020 RE: Transfer of Ownership/FMB Off Premises Licenses 7 -Eleven, Inc. dba 7 -Eleven Store 39510H 3914 Colorado Hwy. 119, Longmont, CO 80504 Dear Rafaela: We are the law firm representing 7 -Eleven Inc. with respect to its Colorado liquor licensing matters. Enclosed please find the original and one copy of a transfer of ownership application for the above -referenced establishment, along with the associated county and state fees. Please note that 7 -Eleven, Inc. is master filed with the Colorado Dept. of Revenue. This transfer is part of a 10 -store asset purchase transaction by 7 -Eleven, Inc. from franchisee, Carpco, LLC. On behalf of the applicant, we respectfully request that a temporary permit be issued in this matter, to be effective March 23, 2020. Please notify me of any deficiencies to be addressed for temporary permit issuance. ATTORNEYS AT LAW 3O3.777.3737 3O3.777.3823 455 SHERMAN ST. SUITE 300, DENVER, CO 80203 Thank you for your consideration. Should you have questions, please do not hesitate to call me at 303-282-4130 or email me at rspencer@dillanddill.com. Very truly yours, Rebecca Spencer -Keith, Paralegal RSK Encl./cc: our file 4398.875 DILLANDDILL.COM 2020-0981 DR 8403 (09/25/19) COLORADO DEPARTMENT OF REVENUE Liquor Enforcement Division (303) 205-2300 RECEIVED MAR 19 2020 Colorado Fermented Malt Beverage WELD COUNTY License Application COMMISSIONERS ❑ New License ❑ New -Concurrent !r4 Transfer of Ownership • All answers must be printed in black ink or typewritten • Applicant must check the appropriate box(es) • Local license fee $ 157. 5O • Applicant should obtain a copy of the Colorado Liquor and Beer Code: www.colorado.gov/enforcement/liquor 1. ig ❑ Applicant is applying as a/an Corporation ❑ Partnership (includes Limited Liability and Husband and Wife Partnerships) Individual ❑ Limited Liability Company ❑ Association or Other 2. 7 -Eleven, Applicant(s) If an LLC, name of LLC; if partnership, at least 2 partners' names; if corporation, name of corporation Inc. FEIN 75-1085131 2a. 7 -Eleven Trade Name of Establishment (DBA) Store 39510H State Sales Tax No. 24111110488 Business Telephone 303-774-7668 3. 3914 Address of Premises (specify exact location of premises) Colorado Hwy 119 City Longmont County Weld State CO ZIP Code 80504 4. Attn: Mailing Address (Number and Street) 7 -Eleven Licensing, PO Box 219088 City or Town Dallas State TX ZIP Code 75221 5. connie.soria@7-11.com Email Address 6. If the premises currently has a liquor or beer license, you MUST answer the following questions Present 7 -Eleven Trade Name of Establishment (DBA) Store 39510A Present State License No. 04-00326 Present Class of License FMB Off Premises Present Expiration Date 06/07/2020 Section A Nonrefundable Application Fees Section B Fermented Malt Beverage Beer License Fees ❑ ❑ X Application Fee for New License $1,550.00 Application Fee for New License - w/Concurrent Review $1,650.00 Application Fee for Transfer $1,550.00 ❑ ❑ ❑ ❑ ❑ X ❑ Retail Fermented Malt Beverage On -Premises (City) $96.25 Retail Fermented Malt Beverage On -Premises (County) $117.50 Retail Fermented Malt Beverage Off -Premises (City) $96.25 Retail Fermented Malt Beverage Off -Premises (County) $117.50 Retail Fermented Malt Beverage On/Off-Premises (City) $96.25 Retail Fermented Malt Beverage On/Off-Premises (County) $117.50 Master File Location Fee $25.00 x To ❑ Master File Background $250.00 x Total Questions? Visit www.colorado.gov/enforcement/liquorfor more information Do Not Write In This Space - For Department Of Revenue Use Only Liability Information License Account Number Liability Date: License Issued Through: (Expiration Date) Total $ 1 DR 8403 (09/25/19) Application Documents Checklist and Worksheet Instructions: This check list should be utilized to assist applicants with filing all required documents for licensure. All documents must be properly signed and correspond with the name of the applicant exactly. All documents must be typed or legibly printed. Upon final State approval the license will be mailed to the local licensing authority. Application fees are nonrefundable. Questions? Visit: www.Colorado.gov/enforcement/liquorfor more information. Items Submitted, Please Check all Appropriate Boxes Completed or Documents Submitted I. Applicant Information © A. Applicant/Licensee identified 13 B. State sales tax license number listed or applied for at time of application © C. License type or other transaction identified 13 D. Submit originals to local authority 13 E. Additional information required by the local licensing authority II. Diagram of the Premises 13 A. No larger than 8 1/2" X 11" © B. Dimensions included (does not have to be to scale). Exterior areas should show control (fences, walls, etc.) • C. Separate diagram for each floor (if multiple levels) 13 D. Bold/Outlined licensed premises III. Proof of Property Possession (One Year Needed) • A. Deed in name of the applicant ONLY (or) (matching question #2) date stamped/filed with County Clerk 13 B. Lease in the name of the applicant ONLY (matching question #2) • 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 (DR 8404-I) and Financial Documents © A. Individual History Record(s) (Form DR 8404-I) Complete DR 8404-I for each principal (individuals with more than 10% ownership, officers, directors, partners, members) 13 B. Fingerprints taken and submitted to the appropriate Local Licensing Authority through an approved state vendor. Master File applicants submit results to the State. The Vendors are as follows: IdentoGO — https://uenroll.identogo.com/ Phone: (844) 539-5539 (toll -free) IdentoGO FAQs: https://www.colorado.gov/pacific/cbi/identification-fags Colorado Fingerprinting — http://www.coloradofingerprinting.com Appointment Scheduling Website: http://www.coloradofingerprinting.com/cabs/ Phone: (720) 292-2722 Toll Free: (833) 224-2227 © C. Purchase agreement, stock transfer agreement, and/or authorization to transfer license • D. List of all notes and loans. V. Sole Proprietor/Husband and Wife Partnership (if applicable) • A. Form DR 4679 • B. Copy of State Issued Driver's License or Identification Card for each Applicant VI. Corporate Applicant Information (If Applicable) © A. Certificate of Incorporation 13 B. Certificate of Good Standing 13 C. Certificate of Authorization if foreign corporation (out of state applicants only) VII. Partnership Applicant Information (If Applicable) • A. Partnership Agreement (general or limited). • B. Certificate of Good Standing VIII. Limited Liability Company Applicant Information (If Applicable) • A. Copy of Articles of Organization • B Certificate of Good Standing • C. Copy of Operating Agreement (if applicable) • D. Certificate of Authorization if foreign LLC (out of state applicants only) 2 DR 8403 (09/25/19) 7. Is the applicant (including any of thepartners if a partnership; members or managers if a limited liability company; PP 9 or officers, stockholders or directors if a corporation) or managers under the age of twenty-one years? Yes • No Q 8. Has the applicant (including any of the partners if a partnership; members or managers if a limited liability company; or officers, stockholders or directors if a corporation) or managers ever (in Colorado or any other state): (a) been denied an alcohol beverage license? (b) had an alcohol beverage license suspended or revoked? (c) had interest in another entity that had an alcohol beverage license suspended or revoked? If you answered yes to 8a, b or c, explain in detail on a separate sheet See attached �� J U ■ 9. Has a Fermented Malt Beverage license for the premises to be licensed been denied within the preceding one year? If "yes," explain in detail. • FA 10. Is the proposed Retail Fermented Malt Beverage Off Premises license within 500 feet of any public or parochial school, N/A the principal campus of any college, university, or seminary? NOTE: The distances are to be computed using the methods outlined under C.R.S. 44-3-313(1)(d)(II). Some limited exceptions apply under C.R.S. 44-3-313. Existing Lic. ■ E4 11. Is the proposed Retail Fermented Malt Beverage Off Premises license, or On/Off premises license, within 500 feet of a Retail Liquor Store licensed under section 44-3-409 C.R.S.? Distance should be determined using guidelines outlined in 44-3-301(12)(c) C.R.S. Existing License - N/A • .0 12. Has a liquor or beer license ever been issued to the applicant (including any of the partners, if a partnership; members or manager if a limited liability company; or officers, stockholders or directors if a corporation)? If yes, identify the name of See the business and list any current or former financial interest in said business including any loans to or from a licensee. Att ri • 13. Does the applicant, lease or other arrangement? ■ Ownership as ■ listed on line Lease 2 of this application, have legal possession of the premises by virtue of ownership, I'"4 Other (Explain in Detail) Lease Assignment �, II a. If leased, list name of landlord and tenant, and date of expiration, EXACTLY as they appear on the lease: Landlord J.D. Carpenter Companies, Inc. (Assignor: Carpco LLC) Tenant 7 -Eleven, Inc. Expires 01/31/2027 b. Is a percentage of alcohol sales included as compensation to the landlord? If yes complete question 12. ■ FA c. Attach a diagram or designate the area to be licensed in black bold outline (including dimensions) which shows the bars, brewery, walls, partitions, entrances, exits and what each room shall be utilized for in this business. This diagram should be no larger than 8 1/2" X 11". 14. 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. Last Name None First Name N/A Date of Birth N/A FEIN or SSN N/A Interest Last Name First 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.) will share in the profit or gross proceeds of this establishment, and any agreement relating to the business which is contingent or conditional in any way by volume, profit, sales, giving of advice or consultation. 15. Name of Manager(s) for all on premises applicants. Last Name N/A - Off Premises Applicant First Name N/A Date of N/A Birth 16. 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. N/A • J 17. Tax Information. a. Has the applicant, including its manager, partners, officer, directors, stockholders, members (LLC), managing members (LLC), or any other person with a 10% or greater financial interest in the applicant, been found in final order of a tax agency to be delinquent in the payment of any state or local taxes, penalties, or interest related to a business? b. Has the applicant, including its manager, partners, officer, directors, stockholders, members (LLC), managing members (LLC), or any other person with a 10% or greater financial interest in the applicant failed to pay any fees or surcharges imposed pursuant to section 44-3-503, C.R.S.? Yes • ■ No El FA 3 DR 8403 (09/25/19) 18. If applicant is a corporation, partnership, association or limited liability company, applicant must list all Officers, Directors, General Partners, and Managing Members. In addition, applicant must list any stockholders, partners, or members with ownership of 10% or more in the Applicant. All persons listed below must also attach form DR 8404-I (Individual History Record), and make an appointment to be fingerprinted by an approved State Vendor through the Vendor's website. See application checklist, Section IV, for details. Name 7 -Eleven, Inc.* Home Address, City & State 3200 Hackberry Rd., Irving, TX 75063 Date of Birth N/A Position Franchisor/Owner % Owned 100% Name Home Address, City & State Date of Birth Position % Owned Name *state master filed - see attached Home Address, City & State Date of Birth Position % Owned Name Home Address, City & State Date of Birth Position % Owned ** If applicant is owned 100% by a parent company, please list the designated principal officer on above. **Corporations - the President, Vice -President, Secretary and Treasurer must be accounted for above ** If total ownership percentage disclosed here does not total 100%, applicant must check this box: Applicant affirms that no individual other than these disclosed herein owns 10% or more of the applicant prohibited liquor license pursuant to Article 3 or 5, C.R.S. (Include ownership percentage if applicable) ■ and does not have financial interest in a 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 - th th- . ons of the Colorado Liquor or Beer Code which affect my license. Authorized '• ature Printed Name and Title David Raab, 7 -Eleven Market Manager (with POA) Date /,, S%7d�'Oa6 �-'aprzt anri_4,p0oval of Local Licensing Authority (City/County) Date application filed with local authority Date of local authority hearing — for new license applicants cannot be less than 30 days from date of application 44-3-311(1) C.R.S. Each person That the and aware (Check ■ • local One) • required to file DR 8404-I has been: Fingerprinted Subject to background investigation, including NCIC/CCIC check for outstanding warrants authority has conducted, or intends to conduct, an inspection of the proposed premises to ensure that the applicant is in compliance with of, liquor code provisions affecting their class of license. Date of Inspection or Anticipated Date • • • Upon approval of state licensing authority New Fermented Malt Beverage Off Premises licenses, and On/Off Premises licenses, distance requirements of 44-3-301 C.R.S. are satisfied New Fermented Malt Beverage On/Off premises licenses must meet the qualifications of 44-4-104 C.R.S. The foregoing application has been examined; and the premises, business to be conducted, and character of the applicant are satisfactory. We do report that such license, if granted, will meet the reasonable requirements of the neighborhood and the desires of the adult inhabitants, and will comply with the provisions of Title 44, Article 4 or 3, C.R.S. and Liquor Rules. Therefore, this application is approved. Local Licensing Authority for Telephone Number ❑ • Town, City County Signature Printed Name Title Date Signature (attest) Printed Name Title Date 4 DR 8495 (07/23/19) COLORADO DEPARTMENT OF REVENUE Liquor Enforcement Division Tax Check Authorization, Waiver, and Request to Release Information i, David Raab, Market Manager (with POA) am signing this Tax Check Authorization, Waiver Inc. (the and Request to Release "Applicant/Licensee") release information and for someone other than Waiver on behalf of the and oversees the and documentation liquor license application section 44-3-101. et seq. with certain tax licensing authorities may and payment obligations. resolution or ordinance with state or local state and local licensing whichever is later. with the renewal any other state or local and documentation to duly licensing authorities, and Applicant/Licensee legal representatives, to action regarding the Information (hereinafter "Waiver") on behalf of 7 -Eleven. to permit the Colorado Department of Revenue and any other state or local taxing authority to documentation that may otherwise be confidential, as provided below. If I am signing this Waiver myself, including on behalf of a business entity, I certify that I have the authority to execute this Applicant/Licensee. The Executive Director of the Colorado Department of Revenue is the State Licensing Authority, Colorado Liquor Enforcement Division as his or her agents, clerks, and employees. The information obtained pursuant to this Waiver may be used in connection with the Applicant/Licensee's and ongoing licensure by the state and local licensing authorities. The Colorado Liquor Code, ("Liquor Code"), and the Colorado Liquor Rules, 1 CCR 203-2 ("Liquor Rules"), require compliance obligations, and set forth the investigative, disciplinary and licensure actions the state and local take for violations of the Liquor Code and Liquor Rules, including failure to meet tax reporting The Waiver is made pursuant to section 39-21-113(4), C.R.S., and any other law, regulation, concerning the confidentiality of tax information, or any document, report or return filed in connection taxes. This Waiver shall be valid until the expiration or revocation of a license, or until both the authorities take final action to approve or deny any application(s) for the renewal of the license, Applicant/Licensee agrees to execute a new waiver for each subsequent licensing period in connection of any license, if requested. By signing below, Applicant/Licensee requests that the Colorado Department of Revenue and taxing authority or agency in the possession of tax documents or information, release information the Colorado Liquor Enforcement Division, and is duly authorized employees, to act as the Applicant's/Licensee's authorized representative under section 39-21-113(4), C.R.S., solely to allow the state and local their duly authorized employees, to investigate compliance with the Liquor Code and Liquor Rules. authorizes the state and local licensing authorities, their duly authorized employees, and their use the information and documentation obtained using this Waiver in any administrative or judicial application or license. Name (Individual/Business) 7 -Eleven, Inc. Social Security Number/Tax Identification Number 75-1085131 Address 3914 Colorado Hwy 119 City Longmont State CO Zip 80504 Home Phone Number 972-828-0711 Business/Work Phone Number 303-774-7668 Printed name of person signing on behalf of the Applicant/Li - - - David Raab, Market Manager, 7- • -n, nc. Applicant/Licensee's Signature (Si. . ure a . f' re o . on \nf =I tax information) Date signed Privacy Act Statement Providing your Social Security Number is voluntary and no right, benefit or privilege provided by law will be denied as a result of refusal to disclose it. § 7 of Privacy Act, 5 USCS § 552a (note). 5 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: THAT 7 -Eleven, Inc. ("7 -Eleven"), hereby appoints each of the individuals named below as its attorney -in -fact for the purposes and the period of time hereinafter set forth: 1. Ron Bomkamp 2. David Raab 3. Kevin R. Wolf 4. Cheryl A. Swinford (renewals only) THAT each attorney -in -fact appointed herein is authorized to take all actions necessary and appropriate to obtain and renew all licenses that relate to 7 -Eleven and to the sale of alcoholic beverages at any 7 -Eleven store located in Colorado. Such actions shall include, but not be limited to, the execution of applications or other documents and the designation of individuals who are managers of any 7 -Eleven store from which alcoholic beverages are being sold pursuant to an alcoholic beverage license issued to 7 -Eleven by the State of Colorado or will be sold following the issuance of an alcoholic beverage license to 7 -Eleven by the State of Colorado; and THAT each individual appointed as an attorney -in -fact herein shall remain an attorney -in - fact with the authority granted herein for as long as such individual is employed by 7 -Eleven or until such appointment is otherwise revoked by 7 -Eleven. IN WITNESS WHEREOF, the and rsigned Senior Vice President of 7 -Eleven has executed this document this o 3 day of 1 2019. Attest: Arthur E. Rubinett Assistant Secretary 7 -ELEVEN, INC. By: •�1 Rankin L. Gasaway Senior Vice President, General Counsel and Secretary 113858v11 State of Texas County of Dallas On this , ' day of 1 v , 2019, before me, Karen Pennell, the undersigned notary public, personally appeared Rankin L. Gasaway, who acknowledged himself to be Senior Vice President, General Counsel and Secretary of 7 -Eleven, Inc., and that he, as such Senior Vice President, being authorized to do so, executed the foregoing instrument on behalf of the corporation for the purposes therein contained. In witness whereof, I hereunto set my hand and official seal. i .��•, Karen Pennell l �' I *; Notary P bltc, State of renal ap'' „.° N;. Yt�wr" fi'y Comm. Notary o5 -of •2o21 f ry ID 541D0101 Notary Public 113858v11 WELD COUNTY BOARD OF COUNTY COMMISSIONSERS ENTRY OF APPEARANCE In Re the Matter of: Transfer of Ownership Application Fermented Malt Beverage Off Premises Licenses 7 -Eleven, Inc. d/b/a 7 -Eleven Store 39510H 3914 Colorado Highway 119 Longmont, CO 80504 Mailing Address: Attn: 7 -Eleven Licensing, P.O. Box 219088 Dallas, TX 75221 The law firm of DILL DILL CARR STONBRAKER & HUTCHINGS, P.C., by and through Kevin M. Coates, respectfully enters its appearance on behalf of the Applicant in this matter, 7 -Eleven, Inc. doing business as 7 -Eleven Store 39510H, 3914 Colorado Highway 119, Longmont, Colorado 80504. 1. Applicant further requests that all communication and correspondence regarding this matter should be directed to Kevin M. Coates, liquor licensing attorney for the Applicant, and his liquor licensing paralegals, Rebecca Spencer -Keith, Sherry Basala and Lindsey Sitz. Respectfully submitted this 19`h day of March 2020. DILL DILL CARR STONBRAKER & HUTCHINGS, P.C. Kevin M. Coates, #25995 455 Sherman St., Suite 300 Denver, CO 80203 Telephone: (303) 777-3737 Fax: (303) 777-3823 E -Mail: kcoates@dillanddill.com Attorney for Applicant CERTIFICATE OF DELIVERY I hereby certify that a true and correct copy of the above and foregoing ENTRY OF APPEARANCE was delivered via e-mail only on this 19th' day of March 2020, as follows: Chloe Rempel Deputy Clerk to the Board Supervisor crempel@weldgov.com Rebecca Spencer -Keith ATTACHMENT COLORADO FMB LICENSE APPLICATION 7 -ELEVEN, INC. DBA 7 -ELEVEN STORE 39510H RE: DENIALS, SUSPENSIONS, REVOCATIONS Denials, Suspensions, Revocations: 7 -Eleven, Inc. Please see the attached list regarding denials, suspensions and revocations for 7 -Eleven, Inc. 7 -Eleven, Inc. Suspensions (Last 3 years - Colorado Only) DATE, =jDISCIPLINARYACTiQN 03/24/17 n£ '14 days suspension, 10 days held in abeyance for one year; 4 days served with fine in lieu of suspension ($200). STORE.3 :ICITY[COUNTY ` TYPE ., . 34442A Denver Sale to Minor 27141A Denver Sale to Minor 04/01/17 14 days suspension, 10 days held in abeyance for one year; 4 days served with fine in lieu of suspension ($200). 13169A Brighton Sale to Minor 04/19/17 7 days suspension, 4 days held in abeyance for one year, 3 days served with fine in lieu of suspension ($200). Responsible vendor training required. 13197A Denver Sale to Minor 05/01/17 30 days suspension, 0 days held in abeyance, 30 days served. 27429B Denver Sale to Minor 05/01/17 30 days suspension, 0 days held in abeyance, 30 days served. 34741A Denver Sale to Minor 06/01/17 14 days suspension, 10 days held in abeyance for one year; 4 days served. 18589 Granby Sale to Minor 06/23/17 10 days suspension, 5 days held in abeyance for one year, 5 days served with fine in lieu of suspension ($200). 39834A 37562A Lone Tree Sale to Minor 07/17/17 3 days suspension, 2 days held in abeyance for one year, 1 day served. Responsible Vendor Training required. Broomfield Sale to Minor 09/22/17 10 days suspension, 5 days held in abeyance for one year, 5 days served with fine in lieu of suspension. Proof of training required. 27238A Westminster Sale to Minor 10/01/17 14 days suspension, 12 days held in abeyance for one year, 2 days served. 32809B 35069A 39211A 34442A Westminster Boulder Sale to Minor 10/01/17 57 days suspension, 0 days held in abeyance, 57 days served. Proof of training required. Sale to Minor 11/01/17 16 days suspension, 10 days held in abeyance for one year, 6 days served. Castle Rock Sale to Minor 11/02/17 15 days suspension, 8 days held in abeyance for one year, 7 days served with fine in lieu of suspension ($200). Denver Colorado Springs Sale to Minor 12/22/17 2nd Violation in 1 yr. 20 days held in abeyance for one year, 14 days suspension (4 + 10 for prior violation). 22684B 35534A Sale to Minor 02/01/18 10 days suspension, 5 days held in abeyance for one year, 5 days served with fine in lieu of suspension ($200). Colorado Springs Sale to Minor 02/01/18 10 days suspension, 5 days held in abeyance for one year, 5 days served. 18556A Thornton Sale to Minor 6 days suspension, 5 days held in abeyance for one 02/07/18 year, 1 day served. 35069A I Boulder Sale to Minor 3rd violation (2nd Violation in 1 yr.) 50 days suspension, 30 days held in abeyance for one year, 04/06/18 20 days served 39733A Lone Tree Sale to Minor 3 days suspension, 2 days held in abeyance for one year, 1 day served. Responsible Vendor Training 04/18/18 required. Excel#167539 1 2/24/2020 7 -Eleven, Inc. Suspensions (Last 3 years - Colorado Only) STORE a:, ICITY/COUNTY. I'TYPE. ; °w i` DATE DISCIPLINARY ACTION;; 37562A Broomfield Sale to Minor 08/13/18 15 days suspension, 10 days held in abeyance for one year, 5 days served with fine in lieu of suspension, plus an additional 5 days suspension served from 09/22/17 violation. Proof of training required. 39733A Lone Tree Sale to Minor 10/11/18 15 days suspension, 10 days held in abeyance for one year, 5 days served with fine in lieu of suspension ($200). Responsible Vendor training required. 2 days suspension held in abeyance from prior violation served. 37562A Broomfield Sale to Minor 04/06/19 20 days suspension, 10 days served concurrently with imposed suspension from 08/2018 violation, 10 days served with fine in lieu of suspension. Proof of training required. 35506J Fort Collins Sale to Minor 05/29/19 15 days suspension, 10 days held in abeyance for one year, 5 days served with fine in lieu of active suspension ($200). 27429B Denver Sale to Minor 06/21/19 21 days suspension, 15 days held in abeyance for one year, 6 days served with fine in lieu of active suspension ($200). Completion of transfer of ownership by 1/31/20 required. 18418B Arvada Sale to Minor 07/01/19 10 days suspension, 5 days held in abeyance for one year, 5 days served with fine in lieu of active suspension ($200). 36019A Denver Sale to Minor 07/26/19 14 days suspension, 10 days held in abeyance for one year, 4 days served with fine in lieu of active suspenson 37141B Denver Sale to Minor 08/10/19 10 day suspension, 5 days held in abeyance for one year, 5 days served with fine in lieu of active suspension ($410) - state violation 23172D Denver Sale to Minor 08/23/19 14 days suspension, 10 days held in abeyance for one year, 4 days served with fine in lieu of active suspension ($317.82) 39078B Larimer County Sale to Minor 09/23/19 15 days suspension, 7 days held in abeyance for one year, 9 days served. Quarterly proof of training required. 29420A Denver Sale to Minor 11/01/19 10 days suspension, 5 days held in abeyance for one year, 5 days served with fine in lieu of active suspension ($378). 35880A Fort Collins Sale to Minor 11/01/19 10 days suspension, 5 days held in abeyance for one year, 5 days actively served. 5 days suspension, 5 days held in abeyance for one year, 0 days served 23546B Colorado Springs Sale to Minor 11/01/19 26803C Fort Collins Sale to minor 01/01/20 15 days suspension, 10 days held in abeyance for one year, 5 days served with fine in lieu of active suspension Proof of training required Excel#167539 2 2/24/2020 ATTACHMENT COLORADO FMB LICENSE APPLICATION 7 -ELEVEN, INC. DBA 7 -ELEVEN STORE 39510H RE: INTERESTS Interests 7 -Eleven, Inc. Please see attached for list of Colorado 7 -Eleven beer licensed establishments. 7 -Eleven, Inc. Store List 13058 I312 Mountview Lane Colorado Springs CO 80907 719 1590-7683 13071 5 Widefield Avenue Widefield CO 80911 I 719 390-6873 13079 1011 S. 21st Street Colorado Springs 'CO 80904 719 ' 635-0183 13082 310 W. Uintah Colorado Springs CO 80905 719 635-0253 13087 2555 Delta Drive Colorado Springs 'CO 80910 719 578-0816 13093 1760 Shasta Drive ,Colorado Springs CO 80910 719 635-0446 13111 2727 S. Prairie 'Pueblo CO 81005 719 564-0447 13117 1040 Pueblo Blvd. Pueblo CO 181005 719 564-3325 13128 9101 W. Jewell (Garrison) 'Lakewood CO 80226 303 989-1956 13140 5405 Marshall Street lArvada CO 80003 303 420-6031 13154 7275 E. 72nd Avenue Commerce City CO 80022 303 287-6522 13157 7270 Broadway (Hwy. 36) Denver CO 80221 303 429-0827 13164 2605 Valmont Road Boulder CO 80301 303 443-2286 13167 7540 Pecos Street Denver CO 80221 303 428-4333 13169 1012 Bridge Street Brighton CO 80601 303 654-0296 13171 505 South Shields (Harmony) Fort Collins CO 80521 970 493-3098 13184 841 Ken Pratt Blvd. Longmont CO 80501 303 651-2417 13185 830 16th Greeley CO 80631 ' 970 352-5150 13188 11421 Washington Northglenn CO 80233 303 452-6093 13194 1107 Santa Fe Drive Denver CO 80204 303 825-6360 13195 4040 E. 8th Avenue (Albion) Denver CO 80206 303 322-2237 13196 1277 E. Hampden Englewood CO 80110 303 781-7074 13197 1645 E. 17th Avenue (Gilpin) Denver CO 80210 303 321-7301 13198 607 E. Alameda (Pearl) Denver CO 80209 303 1777-2151 13203 7675 E. Colfax (Syracuse) Denver CO 180220 303 399-5059 13204 10201 Montview Blvd. (Galena) Aurora CO 80010 303 341-6089 13206 3900 S. Broadway (Mansfield 'Englewood 'CO 80110 303 762-0785 13207 7986 S. Depew Littleton CO 80123 303 979-2185 13209 1090 Ogden Denver 'CO 80218 303 837-1391 13213 567 E. Louisiana (Pearl) Denver ICO 80210 303 871-9013 13224 7560 S. University (Dry Creek) Englewood COI 80110 303 796-0890 15041 1311 West Main Sterling CO 80751 970 522-9278 15068 331 South Hancock (Costilla) Colorado Springs 'CO 80903 719 633-8889 15203 703 East Platte Avenue Fort Morgan CO 80701 I 970 867-3726 15403 1605 W. 92nd Avenue Federal Heights CO 180221 303 426-8827 15431 603 West Platte Avenue Fort Morgan ;CO 80701 970 867-3728 15490 1835 Arapahoe (High rise) Denver ;CO 80202 303 296-9107 15754 4770 W. Colfax (Wolf) Denver CO 80204 303 595-8114 15955 620 Edison Brush I CO 80623 970 842-3123 16068 2641 South Estes (Yale) Lakewood CO 80227 303 989-1943 16094 1120 S. Parker Road Denver CO 80231 303 750-9684 16147 2609 Federal Blvd. Denver i CO 80211 303 j 455-5744 16593 2500 West 38th Ave. (Alcott) Denver CO 80211 303 433-1156 16712 1245 E. Eisenhower (Madison) Loveland CO 80537 970 663-1135 17127 '913 W. Northern Pueblo ,CO 81004 719 543-7441 17134 19200 W. Alameda (Garrison) Lakewood CO 80225 303 ! 989-8831 Doc #136256 2/24/2020 7 -Eleven, Inc. Store List ae 17142 2081 W. Eisenhower (Estrella) ;Loveland ICO 1 80537 1 970 663-2693 17211 ;51315 U.S. Highway 6 & 24 Glenwood Springs CO 81601 970 945-6026 17284 741 North Summit Blvd. Frisco CO 80443 970 668-3941 17299 '8390 West 14th Ave. (Carr) Lakewood 'CO 80215 I 303 232-3647 17596 '10722 E. Alameda (Ironton) Aurora 'CO 80012 303 341-0346 17711 ,17881 W. Colfax Golden I CO 80401 303 279-5216 18324 Highway 34 & Main Yuma CO 80759 970 848-5527 18397 ! 10010 E. Girard Denver CO 80231 303 750-9743 18409 16080 E. Colfax (Laredo) Aurora CO 80011 303 739-0906 18415 '4391 Federal Blvd. Denver ;CO 80211 303 433-1661 18418 17355 Ralston Road, Unit R100 Arvada CO 80003 303 422-6681 18449 2790 S. Wadsworth Blvd. (Yale) Denver CO 80227 303 987-2003 18497 5010 Kipling Wheat Ridge CO 80033 303 ' 420-5437 18556 8801 Huron Street Thornton CO 80260 303 427-7474 18576 3901 East 112th Ave. (Colorado) Thornton CO 80229 303 452-6862 18589 511 Agate Avenue Granby CO 80446 970 887-3105 18594 8002 Chase Drive Arvada CO 80003 303 429-7715 18630 7295 East 7th Ave. (Quebec) Denver CO 80220 303 377-7006 18706 27833 Meadow Drive Evergreen CO 80439 303 ; 670-0090 18724 104 East 18th Street Greeley CO 80631 970 356-6053 18730 3177 E. Colfax (Steele) Denver CO 80206 303 1 322-2357 18739 711 Washington Golden CO 80401 303 j 279-8388 18999 3877 Astrozon Blvd. Colorado Springs CO 80916 719 390-8125 19015 4096 S. Federal (Oxford) Sheridan CO 80110 303 789-5306 19088 1011 37th Street Evans I CO 80620 970 339-2456 19136 6490 Ward Road Arvada CO 80003 303 431-0943 19169 926 Lake Avenue Pueblo CO 81004 719 545-6935 19288 7051 Sheridan Blvd. Westminster 'CO 80030 303 i 429-6778 19570 402 West 3rd Wray CO 80758 970 332-4635 19583 1029 Grand Avenue Glenwood Springs CO 81601 970 ! 945-2062 19585 235 W. 7th Avenue Walsenburg ;CO 81089 719 1738-1156 19948 ;1707 17th/Walnut Street Boulder CO 80302 303 443-4329 20104 429 Remington Fort Collins CO 80521 970 493-9263 20182 1499 W. Littleton Blvd. Littleton CO 80120 303 , 795-2753 20308 1283 Highway 105 Monument ICO 80132 719 1481-2497 20332 4401 S. Tamarac Pkwy. (I225) Denver CO 80237 303 ' 796-9685 20343 2407 N. Union Blvd. Colorado Springs CO 80909 719 1635-0180 20638 804 East 4th Street Pueblo CO 81004 719 ! 543-7265 20909 16980 E. Iliff (Buckley) Aurora CO1 80014 303 337-7571 21242 6515 South Dayton (Peakview) Greenwood Village CO 80111 303 1 790-0230 21367 1540 East Highway 50 Salida CO 81201 719 539-3670 21493 15553 E. Mississippi (Chambers) Aurora CO 80012 303 751-5920 21494 3005 South Peoria (Cornell) Aurora CO 80014 303 695-7869 21562 1651 South Buckley (Mexico) Aurora CO 80017 303 671-0142 21899 5195 West Byron Denver CO 80211 303 1433-3293 303 1759-8324 21938 4085 E. Mississippi (Colorado) I Denver 'CO 80222 Doc #136256 2/24/2020 7 -Eleven, Inc. Store List 21967 1475 B Street (Lashelle) ;Colorado Springs ;CO 80906 719 1576-2615 22021 23250 Highway 82 Basalt CO 81621 970 927-3827 22059 525 North Union Blvd. 'Colorado Springs CO 80909 719 1635-1104 22063 11599 W. Colfax Lakewood CO 80215 303 237-8643 22088 1329 Main Street Carbondale CO 81623 970 963-0423 22194 '14490 E. Colfax (Sable) Aurora ' CO ! 80011 I 303 367-1937 22233 1240 E. Fillmore (Hancock) ;Colorado Springs CO 80907 719 625-0219 22358 1438 Arapahoe (Brooks Tower) ;Denver CO 80202 303 _ 825-1345 22533 4601 South Broadway (Tufts) 'Englewood CO 80110 303 761-8046 22537 1690 Pearl ;Denver CO 80203 303 832-1711 22562 1801 S. Nevada Ave. (St. Elmo) !Colorado Springs CO 80906 719 635-0353 22596 841 Lashley 'Longmont CO 80501 303 776-7211 22613 3004 West Colorado Avenue 'Colorado Springs I CO 80904 719 635-0142 22684 1428 West Colorado Ave. (15th) Colorado Springs ICO 80904 719 578-5397 22706 601 South Santa Fe Ave. ,Fountain CO 80817 719 382-5156 23154 13790 E. Quincy (Parker) ;Aurora CO 80013 303 690-6088 23172 '303 North Broadway I Denver CO 80203 303 722-4960 23206 '7211 Pecos (Hwy. 36) 1Westminster 'CO 80221 303 430-1146 23293 1800 Downing Denver CO 80203 303 303 830-2516 1343-3456 23418 10500 E. Colfax (Havana) 'Aurora CO 80010 23519 2324 23rd Avenue Greeley COI 80631 971 j 356-7074 23546 1402 Harrison (Rand) ;Colorado Springs ICO 80906 719 576-4052 23603 1105 Knox Court Denver CO 80219 303 j 936-4356 23664 2396 South Federal (Wesley) Denver CO 80219 303 935-9339 23727 750 South Monaco (Leetsdale) Denver ICO 80224 303 394-3016 23731 328 East Platte (Wahsatch) !Colorado Springs I CO 80909 719 634-4066 23811 327 West 8th Street 'Pueblo 'CO ; 81001 719 542-6271 23829 6302 East 72nd Ave. (Hwy. 2) Commerce City 'CO 80022 303 287-8035 23867 1499 South Federal (Florida) 1Denver CO 80219 303 1937-0667 23888 1702 South 8th (Arcturus) Colorado Springs 'CO 80906 719 635-0303 23899 85 W. Alameda (Bannock) Denver CO 80223 303 698-2285 23905 11000 E. Colfax (Ogden) Denver CO 80218 303 ' 831-0270 23935 :3805 Pikes Peak (Academy) Colorado Springs 'CO 80916 719 597-9986 23963 201 Blue River Parkway ` ISilverthorne CO 80498 970 468-8537 23990 L1795 North Peoria Aurora CO 80010 303 363-7333 24079 18250 West Coal Mine, Unit A Littleton CON 80123 303 I 979-0650 24088 '635 Main Street Longmont ; CO 80501 303 772-3595 24116 ;1585 South Broadway (Iowa) Denver 'CO 80202 303 733-2829 24165 9201 Federal Blvd. Westminster ;CO 80030 303 427-8062 24359 ;2410 South University (Wesley) 'Denver CO 80202 303 733-9823 24398 13306 East Fountain (Chelton) Colorado Springs CO 80910 719 597-8235 24438 ;995 North Circle Drive (Gall) ;Colorado Springs ICO 80909 719 570-6240 24460 .510 S. Security Blvd. (Main) Security : CO 80911 719 390-6007 24627 ' 580 Josephine I Denver CO 80206 303 ; 377-7237 24856 980 E. 88th Avenue Thornton CO 80229 303 287-6021 25028 1490 Perry (Colfax) ;Denver CO 80204 303 572-8243 25052 890 South Federal (Kentucky) ; Denver 1CO 80219 303 936-1412 25069 4708 Washington Street I Denver CO 80216 303 292-6024 Doc #136256 2/24/2020 7 -Eleven, Inc. Store List i !Aurora CO 80010 303 340-8300 25187 595 Havana 25265 201 W. Fillmore St. ;Colorado Springs CO 80907 719 1634-3451 25290 4543 Boardwalk (Harmony) Fort Collins COI80521 j 970 1223-4197 25325 12057 Pecos Street Westminster CO 80234 303 452-9271 25476 1650 Main Street 'Longmont 'CO 80501 ; 303 651-2930 25550 12880 Albrook (Tulsa) I Denver CO 80239 303 373-1785 25581 16400 S. Golden Rd. (Quaker) 'Golden CO ! 80401 303 279-0466 25582 1103 Yosemite Denver CO 80220 303 321-2042 25684 2540 10th Street ;Greeley CO 80631 970 356-2779 25718 2220 South Peoria (Iliff) Aurora 'CO 80014 I 303 671-5940 25740 18883 E. Hampden (Tower) Aurora CO 80013 303 693-9445 25794 1685 Jet Wing Drive (Fountain) Colorado Springs CO 80916 719 597-3338 25823 7201 Lowell Blvd. Westminster CO 80030 303 426-4936 25884 1990 Youpfield Lakewood CO 80215 303 237-2683 25902 1904 West Uintah Colorado Springs CO 80904 719 635-0415 25907 3200 E. 45th Avenue (Steele) Denver CO 80216 303 295-2272 26043 6201 Lehman Drive (Academy) Colorado Springs CO 80918 719 528-5115 26137 95 Sheridan (First) Lakewood CO 80226 303 232-1229 26289 2500 E. 88th (Devonshire) ;Thornton CO 80229 I 303 289-7432 26292 825 N. Nevada (Cache LaPoudre) Colorado Springs CO 80903 719 520-9767 26295 1426 N. Academy (Palmer Park) 'Colorado Springs CO 80909 719 597-6745 26574 13190 E. Mississippi (Uvalda) Aurora CO 80012 303 719 745-5833 26644 1801 E. Platte Avenue (Union) Colorado Springs CO _ 80909 630-1084 26682 14593 E. Mississippi (Sable) Aurora CO 80012 303 695-1280 26683 2025 B Street (Crestridge) Colorado Springs CO 80906 719 540-9372 26692 5805 E. Palmer Park (Powers) Colorado Springs CO 80915 719 550-9684 26693 1 3740 Randall Drive (Woodman) Colorado Springs CO 80918 719 599-0232 26788 ;503 S. Nevada (Cimarron) 'Colorado Springs CO 80903 ; 719 520-1535 26803 '2800 South College (Harvard) Fort Collins CO 80525 970 226-5747 26927 1600 South LeMay (Prospect) Fort Collins CO 80521 970 224-5730 26933 970 W. Horsetooth (Shields) ;Fort Collins CO 80525 970 223-7783 26935 801 Lincoln Denver CO 80203 303 832-6024 27022 650 E. 64th Avenue (Washington) 'Denver CO 180229 303 288-1107 27033 5595 South Broadway (Powers) (Littleton CO� 80120 303 794-5527 27043 820 Simms, Unit B ; Lakewood 'CO 80215 303 232-3639 27067 13990 E. 35th Avenue (Colorado) 'Denver i CO 80205 303 322-0825 27082 450 N. Murray (Platte) Colorado Springs 'CO 80916 719 1574-5454 27094 105 37th Avenue (Hwy. 287) I Loveland CO 80538 970 667-0053 27211 '15501 East 6th Avenue (Helena) 'Aurora CO 80011 303 340-8086 27213 '16601 E. Smoky Hill Rd. (Pheasant) Aurora CO 80015 303 690-8810 27238 :8378 North Sheridan (84th) Westminster 'CO 80030 303 426-6308 27275 ,405 Woodmen (Rockrimmon) 'Colorado Springs CO 80919 719 528-1342 27429 11850 South Sheridan, Unit A Denver ICO 80226 303 936-5391 27492 1670 East 47th Ave. (Brighton) ;Denver CO 80216 303 297-8154 27620 1303 North Santa Fe Denver CO 80223 303 893-2908 29024 ;880 South Buckley (Kentucky) ;Aurora � CO 80012 303 755-8978 29108 14701 Peoria Street (Paris) Denver 'CO 80239 303 371-0933 29151 2299 W. Alameda ,Denver ;CO 80223 303 733-5238 Doc #136256 2/24/2020 7 -Eleven, Inc. Store List 29203 1000 Federal Blvd. Denver CO 80204 303 629-5611 29314 .10410 Melody Drive , Northglenn 'CO 80234 303 252-7505 29420 x1301 West 38th Avenue Denver CO 80211 303 477-8708 29508 3131 S. Broadway (Dartmouth) Englewood 'CO 80209 303 761-4531 32159 '623 Garden of Gods Rd. Colorado Springs CO 80907 719 262-0270 32267 10992 State Hwy 9 (Breckenridge CO! 80424 970 547-4786 32276 6600 S. College Avenue Fort Collins CO 80525 970 206-1704 32386 4710 Centennial Blvd 'Colorado Springs CO 80919 719 266-9623 32646 4605 Austin Bluffs Parkes y Colorado Springs CO 80918 719 573-9759 32673 1446 N. 95th Street Lafayette CO 80026 303 665-4250 32747 6025 Constitution Avenue (Colorado Springs CO 80915 719 638-1290 32809 10128 N Wadsworth i Westminster CO 80021 303 635-2204 32810 4500 Peoria Street 'Denver CO 80239 303 307-1278 32923 16981 Lincoln Ave Parker CO 80134 303 805-377 32990 3522 N Elizabeth St Pueblo CO 81008 719 296-8068 33038 18451 E. Alameda Avenue Aurora CON80017 303 750-1689 33040 8380 S. Colorado Blvd. 'Highlands Ranch CO 80126 303 770-4558 33041 1237 Southgate Place Pueblo CO 81004 719 561-2755 33042 8750 S Yosemite St Lone Tree ICO 80124 720 874-0901 33043 .7725 Fountain Mesa Rd Fountain ICO 80817 719 392-1229 33044 ' 14250 E. Iliff Avenue / Blackhawk Aurora !CO 80014 303 873-0415 33052 ;1595 W. 47th Avenue Denver I CO 80211 303 561-4974 33322 i5590 Power Center Point Colorado Springs CO 80921 719 282-9141 33481 399 N. Washington Avenue Golden CO 80403 303 216-9163 33630 '820 16th St., Suite 100 Denver CO 80202 303 893-1562 33710 ;6040 Barnes Road Colorado Springs 1CO 80922 719 591-1097 34012 5241 72nd Ave. Westminster CO 80030 303 933-2902 34035 19832 E Hilltop Road Parker CO 80134 303 805-9052 34036 6990 Church Ranch Blvd. Westminster CO 80021 303 933-2945 34057 11802 E. Oswego St Englewood CO 80112 303 740-9333 34058 2434 Briargate Pkwy. Colorado Springs CO 80920 303 740-9333 34087 15610 E. 104th Avenue Commerce City CO 80022 303 740-9333 34131 19390 E. Quincy Ave Aurora CO 80015 303 740-9333 34168 3240 Village Vista Drive Erie CO 80516 303 665-1143 34169 12285 South Parker Road Parker CO 80134 303 740-9333 34179 4709 N. Tower Road Denver CO 80249 303 740-9333 34181 21405 E. Quincy Ave Aurora CO 80015 303 740-9333 34209 008 Nottingham Avon CO 81620 303 740-9333 34210 11099 E. I-25 Frontage Rd Firestone CO 80504 303 485-2939 34238 50 Telep Avenue Johnstown CO 80534 303 740-9333 34316 6150 E. Hwy 34 Johnstown CO 80534 303 740-9333 34330 3810 Federal Blvd Denver CO 80211 303 740-9333 34333 3995 N. Lewiston, Ste 106 I Aurora CO 80113 303 740-9333 34342 1975 East Colfax Ave Denver CO 80206 303 740-9333 34357 621 17th St., Unit 100 Denver CO 80293 303 740-9333 34374 2341 E. Colfax Ave. (Josephine) Denver CO 80206 303 740-9333 34441 ;13697 East Iliff Ave Aurora CO 80014 303 740-9333 34442 11726 Champa St. Denver CO 80202 303 740-9333 Doc #136256 2/24/2020 7 -Eleven, Inc. Store List 34486 13099 West Mineral Ave Littleton ;CO 180120 303 740-9333 34504 7451 S. Gartrell Rd. Aurora CO 80016 972 828-0711 34505 ,1107 S. Sheridan Lakewood 'CO 80232 720 431-3865 34534 '6201 E 14th Ave Denver CO 80239 303 740-9333 34570 ;1755 Blake St, #100 Denver 'CO 80202 303 740-9333 34675 ;1910 S Havana St, Unit 2 Aurora CO 80012 303 740-9333 34683 2201 S. Sheridan Blvd. Denver CO 80227 303 740-9333 34705 '2100 S. Holly St. Denver CO 80222 303 756-3032 34726 I2295 S. Chambers Rd., Ste. O Aurora !CO 80014 303 740-9333 34741 i7080 Tower Rd. I Denver CO 80249 303 740-9333 34921 2350 Hancock Expressway Colorado Springs CO 80910 972 828-0711 34924 2803 W. 10th Greeley CO 80631 303 740-9333 35001 '2802 E. Fountain Blvd. Colorado Springs CO 80910 972 828-0711 35053 3992 Havana St. Denver ,CO 80239 303 371-9312 35069 1091 13th St. Boulder ICO 80302 972 828-0711 35336 12802 Lowell Blvd. Broomfield NCO 80020 972 828-0711 35337 2825 Briargate Blvd. Colorado Springs COI 80920 972 828-0711 35338 330 S. Academy Blvd. Colorado Springs CO 80910 972 828-0711 35345 12250 Mountain View Ave :Longmont CO 80501 972 828-0711 35357 '5190 W. 113th Avenue (Westminster CO 80030 972 828-0711 35365 380 E. 17th Ave. I Denver CO 80203 303 740-9333 35503 t 1550 Court Pl. I Denver CO 80202 972 828-0711 35506 3045 W. Prospect Rd. Fort Collins CO O 80526 970 221-8551 35511 4990 E. Hampden Ave. i Denver CO 80222 972 828-0711 35519 4406 Sheridan Blvd. Denver CO 80212 303 422-1263 35534 5280 Astrozon Blvd. (Colorado Springs CO 80916 972 828-0711 35536 450 Federal Blvd. I Denver CO 80204 303 534-1037 35598 3495 S. Federal Blvd. Sheridan CO 80110 303 789-9386 35600 7718 E. Woodmen Rd. Colorado Springs CO 80923 719 495-5703 35604 3391 W. Hampden Ave. Sheridan CO 80110 303 761-3249 35606 5785 Ward Rd. Arvada ,CO 80002 972 828-0711 35610 7692 Barnes Rd. Colorado Springs CO 80922 719 574-1557 35617 3400 N. York St. Denver CO 80205 303 291-6928 35622 6630 S. Yosemite St. Greenwood Village CO 80111 972 828-0711 35668 3445 W. Colfax Ave. Denver 'CO 80204 303 573-3851 35689 11450 S. Santa Fe Dr. Denver CO 80223 972 828-0711 35708 4277 Taft Ave. Loveland ;CO 80538 970 663-9097 35712 1112 W. Magnolia St. Fort Collins 'CO 80524 972 828-0711 35715 '3876 E. Bromley Ln. Brighton CO 80601 303 659-0376 35717 6400 Crossroads Blvd. Windsor CO 80550 972 828-0711 35822 3502 N. Academy Blvd. Colorado Springs CO 80917 719 597-6323 35828 6966 Dahlia St. Commerce City CO 80022 303 287-0846 35864 8991 E. 104th Ave. Henderson CO 80640 970 828-0711 35880 1401 W. Elizabeth St. Fort Collins CO 80521 970 493-0524 35976 8755 E. Montiview Blvd. Denver CO 80238 303 377-1489 35979 2950 W. Evans Ave. Denver CO 80219 303 922-2400 35995 1600 E. Evans Ave. Denver CO 80210 303 722-7208 36013 12060 E. 120th Ave. Henderson CO 80640 303 227-4930 Doc #136256 2/24/2020 i 7 -Eleven, Inc. Store List y�F�F �'' .. i'� 5 3 '✓ �".�.s y" ,i �s2' �. f 'k+.+� r9 t $ i� i H „ i 9 ai't�Y msf�?, �. 4 y� £ '''s� .or �Fe 36017 '4900 E. Bridge St. Brighton CO 80601 ' 972 828-0711 36019 1800 Welton St. Denver CO 80202 972 828-0711 36464 8111 Tower Rd. Commerce City ..CO 80022 972 828-0711 36492 5995 W. 38th Ave. Wheat Ridge CO 80212 972 828-0711 36697 5090 Federal Blvd. Denver CO 80221 303 433-3203 36714 2650 Northgate Blvd. Colorado Springs CO 80921 719 495-0400 36764 ;8090 Meridian Rd. Peyton (Falcon) CO 80831 972 828-0711 36769 I1510 S. Holly St. Denver CO 80222 972 828-0711 36775 5797 Quebec St. Commerce City CO 80022 972 828-0711 36956 18351 E. Colfax Ave. Aurora 1CO 80011 303 343-1909 37010 ;2363 E. Evans Ave. Denver CO 80210 303 722-1222 37016 4922 Willow St. Denver CO 80238 972 828-0711 37120 13200 Chambers Rd. Aurora CO_J 80011 972 828-0711 37141 14855 Pecos St. Denver ;CO 80221 972 1828-0711 972 828-0711 37198 '2093 S. Cathay Way Aurora ! CO 80013 37220 5601 E. 136th Ave. Thornton CO 80602 972 828-0711 37221 23830 E. Smoky Hill Rd. Aurora CO 80016 972 828-0711 37278 990 W. Baptist Rd. Monument 'CO 80132 719 1481-1354 37291 12241 E. 104th Ave. Commerce City CO 80022 972 ' 828-0711 37554 4415 McIntyre St. Golden CO 80403 972 828-0711 37562 8900 Metro Airport Ave. Broomfield CO 80021 972 828-0711 37570 8836 E. 96th Ave. Henderson CO 80640 303 287-4068 37731 6400 Federal Blvd. Denver CO 80221 972 828-0711 38083 7382 Federal Blvd. Westminster CO 80030 972 828-0711 38084 ;3790 Wadsworth Blvd. Wheat Ridge CO 80033 972 828-0711 38093 1175 Aloha St. Castle Rock CO 80108 972 828-0711 38107 229 Gleneage Gate View Colorado Springs CO 80921 i 972 828-0711 38119 I725 Kalamath St. Denver CO 80204 972 828-0711 38130 2880 S. Circle Dr. Colorado Springs CO 80906 ' 972 828-0711 38135 111275 Main St. Broomfield CO 80020 972 828-0711 38170 '5606 E. 56th Ave. Commerce City CO 80022 303 227-4639 38180 1200 W. Alameda Ave. Denver CO 80223 972 828-0711 38226 '8790 Indiana St. Arvada CO 80005 972 828-0711 38234 6385 Promenade Pkwy. Castle Rock CO 80104 972 828-0711 38330 17285 W. 119th Ave. Broomfield CO 80220 972 828-0711 38351 15200 E. 120th Ave. Commerce City CO 80022 972 828-0711 38357 ;4908 N. Havana St. Denver CO 80239 I 972 828-0711 38361 18449 E. 65th Ave. Denver CO 80249 972 828-0711 38364 ,3800 Tower Rd. Aurora CO 80011 I 972 828-0711 38390 '599 S. Airport Blvd. Aurora CO 80017 303 523-6845 38633 ;1120 Newport Rd. Colorado Springs CO 80916 972 1828-0711 38638 13500 Highway 52 Frederick CO 80516 972 828-0711 38887 ;1111 Mountain Ave. Berthoud CO 80513 972 828-071.1 39033 ;120 Blue River Parkway Silverthorne CO 80498 970 468-7505 39034 14601 S. Santa Fe I Englewood CO 80110 303 761-4068 39035 6725 Wadsworth Blvd Arvada CO 80003 303 431-8088 39036 ;3636 - 23rd Ave. Evans NCO 80620 970 330-1400 39062 ;3190 W. 38th Ave. Denver i CO 80211 303 455-2310 Doc #136256 2/24/2020 7 -Eleven, Inc. Store List 39075 !4695 W. 20th St. 39077 ;1401 9th St. 39078 '1100 Broad Street Greeley Greeley Milliken Ft. Collins 'CO CO ' CO 80631 j 970 356-2618 80631 970 356-2618 39079 200 N. Taft Hill Rd. CO 80543 970 1587-2333 80521 970 482-3279 39080 1032 West Mountain Ave 39081 1629 Main Street 39082 1509 E. Eisenhower Blvd 39169 221 South 8th St 39211 810 Wilcox Street Ft. Collins ' CO Windsor CO Loveland ;CO Colorado Springs ;CO Castle Rock 'CO Lakewood Thornton 80521 970 407-7306 80550 970 1686-5159 80537 ! 970 667-1735 80907 303 740-9333 80104 303 814-2359 39274 39296 495 Sheridan Blvd. 8820 N. Colorado Blvd. CO _ CO 80226 720 283-6776 80029 303 287-2272 39317 39339 3520 Town Center Dr., Unit A 1810 Main St. Highlands Ranch Security CO 80129 303 740-9333 CO 80911 303 740-9333 39363 14531 E. Alameda Aurora CO 80021 303 340-3183 39421 9301 S. Parker Rd Parker CO 80134 303 805-7294 39451 ;4301 State HWY 66 39459 1408 Garden of the Gods Rd. 39472 '4325 S. Carefree Cir. 39501 10815 W. Jewell Ave., Unit A 4351 S. Tamarac Pkwy 3914 Colorado Highway 119 7486 Westgate Longmont CO 'Colorado Springs CO Colorado Springs CO Lakewood CO 80232 303 980-8590 80504 970 535-4606 80907 303 80917 303 740-9333 740-9333 39504 39510 39519 39528 16310 E. Quincy 39532 Denver Longmont Windsor ;CO 80528 Aurora CO 80015 720 870-1194 Centennial 'CO CO 80237 CO 80504 303 303 220-1404 774-7668 970 223-5554 15550 E. Broncos Pkway 1901 N. Academy Blvd 9355 E. Dry Creek Rd 15296 E. Hampton Ave 80112 303 799-6811 39543 39591 39622 39662 3060 S. Havana St 39706 1401 16th St. 39729 ;2299 S. Havana St. Colorado Springs Centennial CO CO 80909 80112 719 303 596-4674 221-1622 Aurora CO 80014 303 766-0058 Aurora ;CO 80014 303 752-4440 Denver Aurora CO CO 80202 80012 972 828-0711 303 750-9982 39730 1110 S. Pierce St. 39731 9100 W. Ken Caryl Ave. 39732 713690 E. Alameda Ave. Lakewood 'co 80232 303 901-9179 Littleton CO 80128 303 979-1714 Aurora CO 80012 303 360-8624 39733 9010 Park Meadows Dr. Lone Tree CO 80124 303 649-1862 39767 290 S. Pierce St 39773 ;3083 Brighton Blvd., Ste. 101 39774 9590 Federal Blvd. 39847 9171 S. Arapahoe Rd. 39859 7260 E. 36th Ave. Lakewood CO 80226 972 828-0711 Denver CO 80216 303 308-9006 'Federal Heights ;CO 80260 ! 972 828-0711 Greenwood Village CO 80112 972 828-0711 Denver ,CO 80207 720 880-8314 Doc #136256 2/24/2020 ATTACHMENT COLORADO FMB LICENSE APPLICATION 7 -ELEVEN, INC. DBA 7 -ELEVEN STORE 39510H RE: OWNERSHIP Owners: 7 -Eleven, Inc. Please see the attached list of officers and directors of 7 -Eleven, Inc. on the approved State Master File. 7 -Eleven, Inc. Directors and Officers Directors: Toshifumi Suzuki Chairman of the Board Joseph M. DePinto* Director Ryuichi Isaka Director Jay W. Chai Director Masaaki Kamata Director Nobutake Sato Director *designated director for licensing — U.S. resident State Master File Approved Officers: Joseph M. DePinto President and Chief Executive Officer Rankin L. Gasaway Senior Vice President, General Counsel, Secretary Stanley W. Reynolds Executive Vice President and Chief Financial Officer 7 -Eleven, Inc. Master File Approved Officers: Name Home Address Date of Birth Position % Owned 7 -Eleven, Inc. Joseph DePinto 150 E. Continental Blvd. Southlake, TX 76092 Pres., CEO & Dir. -0- Rankin Gasaway 6619 Dupper Ct. Dallas, TX 75252 Sr. Vice Pres., Sec'y & General Counsel -0- Stanley Reynolds 1308 Fanning St. Southlake, TX 76092 Exec. Vice Pres. & CFO -0- OFFICE OF THE SECRETARY OF STATE OF THE STATE OF COLORADO CERTIFICATE OF FACT OF GOOD STANDING I, Jena Griswold, as the Secretary of State of the State of Colorado, hereby certify that, according to the records of this office, 7 -ELEVEN, INC. is an entity formed or registered under the law of Texas , has complied with all applicable requirements of this office, and is in good standing with this office. This entity has been assigned entity identification number 19871057047 . This certificate reflects facts established or disclosed by documents delivered to this office on paper through 02/20/2020 that have been posted, and by documents delivered to this office electronically through 02/21/2020 @ 11:12:51 . I have affixed hereto the Great Seal of the State of Colorado and duly generated, executed, and issued this official certificate at Denver, Colorado on 02/21/2020 @ 11:12:51 in accordance with applicable law. This certificate is assigned Confirmation Number 12100220 . Secretary of State of the State of Colorado *********************************************End of Certificate******************************************** Notice: A certificate issued electronically from the Colorado Secretary of State's Web site is fully and immediately valid and effective. However, as an option, the issuance and validity of a certificate obtained electronically may be established by visiting the Validate a Certificate page of the Secretary of State's Web site, http.•//www.sos.state.co.us/biz/CertificateSearchCriteria.do entering the certificate's confirmation number displayed on the certificate, and following the instructions displayed. Confirminz the issuance of a certificate is merely optional and is not necessary to the valid and effective issuance of a certificate. For more information, visit our Web site, http://www.sos.state.co.us/ click "Businesses, trademarks, trade names" and select "Frequently Asked Questions." 7 -Eleven, .Inc, Directors and Officers Directors; Tdshifuini Suzuki Chairman of the Board Joseph M. DePinto Director Ryuichi,Tstlka. Director Jay W,,'Chai• _ Director Masaaki•Kamata• Director Nobutake Sato . Director Officers; Toseph M: DePinto _ President and Chief Executive Officer Darren M. Rebelez Executive Vice President and Chief Operating Officer Rankin L. Gasaway Senior Vice President, General Counsel, Secretary -Stanley W. Reynolds Executive Vice President arid Chief Financial Officer Officers and Directors Qualified on State -Approved Master File: Joseph M. DePinto Rankin L. Gasaway Stanley W. Reynolds United States Patent Office 896,654 Registered Aug. 11, 1970 PRINCIPAL REGISTER Service Mark Ser. No. 323,138, Sled Mar. 28, 1969 7 -ELEVEN The Southland Corporation (Texas corporation) 2828 N. Haskell Ave. Dallas, Tex. 75221 For: RETAIL GROCERY STORE SERVICE, in CLASS 101 (INT. CL. 35). First use at least as early as 1944; in commerce at least as early as 1946. Owner of Reg. No. 718,016. CERTIFICATE I, Suzanne Harrison, an Assistant Secretary of 7 -Eleven, Inc., a Texas corporation,. do hereby certify that the attached resolution regarding beer licenses in the State of Colorado was duly passed and adopted by•the Board of Directors of said corporation on July 17, 2012, effective as of August 1,•2012, and that said resolution is now in full force and effect. IN WITNESS WHEREOF, I have signed this Certificate this 2 I day of Ail v uL, ; 2012. Assistant Secretary • . STATE OF TEXAS .. §. COUNTY OF DALLAS BEFORE ME, the undersigned authority, a Notary Public in and for- said county and state, on this day personally appeared Suzanne Harrison known to me to be the person whose name is subscribed to the foregoing instrument, acknowledging to me.that the same was the act of 7 -Eleven, Inc., a Texas corporation, and that (s)he executed the same as the act of such corporation for the purposes therein expressed.and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this c 1 day of )L6 ?.) y; 2012. ' NOTARY PUBLIC ��G` Karen Pennell ,as,,' " 'R : ' i µc1 i'i U -v .5.i i. Of hie? cram C pins. [s /011201a 113 :.Ys �iir r �. Y _.:.yam . :.'r. 1:?•w.--rT...ai_.. WHEREAS, the Company holds, and operates under, a number of 3.2% beer licenses in the State of Colorado, and WHEREAS, the Company has certain ongoing licensing and compliance related obligations pursuant to the State of Colorado Liquor Code as well as regulations. promulgated pursuant thereto, and WHEREAS, the Company had previously designated three officers and one director to be "qualified persons" of the Company with respect•to the 3.2% beer licenses outstanding in -the State of Colorado pursuant to the "Master File" system of the State of Colorado Liquor Enforcement Division; and WHEREAS, one of those officers, David T. Fenton, is retiring from the Company, effective August 1, 2012; and WHEREAS, the Company wishes to have the two remaining officers and, one director, as listed below, continue as "qualified- persons," and Mr. Feriton's successor, Rankin L. Gasaway, to be newly appointed as a "qualified person" with respect to the 3.2% beer licenses in the State - of Colorado;.by doing so, the slate of "qualified persons," effective as of August 1, 2012, will be: ' ° Joseph M. DePinto, Director, President and Chief Executive Officer; Stanley W. Reynolds, Executive Vice President and Chief Financial Officer; 'and Rankin L. Gasaway, Senior Vice President, General Counsel and Secretary. NOW THEREFORE, the following resolutions are hereby adopted:. RESOLVED, that Joseph. M. DePinto is hereby designated as the "responsible director" for the purposes of ongoing compliance and licensing matters related to the Company's 3.2% beer licenses in the State of Colorado; and FURTHER RESOLVED, that the President and Chief Executive Officer, any Vice President (including Executive and Senior Vice Presidents), the • Secretary, the Treasurer'and the Controller are each hereby authorized and • directed; in the name and on behalf of the Company, to do or cause to be done any and all such acts and things and to execute and deliver any and all such documents'and papers as such officer may deem necessary or appropriate to carry into effect the full intent and purpose of the foregoing resolutions, Registry of Shares 7 -Eleven, Inc. (a Texas corporation; IRS Employer Identification No.: 75-1085131) • Shareholder name Address Number of shares owned Date of issuance . SEJ Asset Management & Investment Company • c/o Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, New Castle County, DE 130,313,449 November 9, 2005; January 1, 2010; and November 21, 2010* TOTAL SHARES OUTSTANDING: 130,313,449 CER1'1HED AS TRUE AND CORRECT: Ranlcin L. Gas way, Secret ( o (1 (Zv / 2 -- ate *Of the total shares outstanding, 6,501,685 shares were issued on November 9, 2005; an additional 109,389,381 shares were issued on January 1, 2010, pursuant to the Agreement and Plan of Merger of SEJ Service LLC and SEJ Finance LLC-with and into 7 -Eleven, Inc.;. and 14,422,383 shares were issued on November 21, 2010, pursuant to a Notice of Conversion of certain QUIDS Due 2010 in the aggregate principal amount of $300,000;000. Record and beneficial ownership of all outstanding shares was transferred from Seven -Eleven Japan Co., Ltd. to SEJ Asset Management & Investment Company on October 19, 2012. Page 1 of 1 148317.05 ACTION BY WRll'1bN CONSENT OF THE DIRECTORS IN LIEU OF THE FIRST MEETING OF THE BOARD OF DIRECTORS • OF SEJ ASSET MANAGEMENT & INVESTMENT COMPANY a Delaware corporation October 1 q , 2012 The undersigned, being the directors of SEJ Asset Management & Investment Company, a Delaware corporation (the "Corporation"), acting in accordance with Section 141(f) of the General Corporation Law of the State of Delaware, hereby take the following action and adopt the following resolutions by written consent in lieu of the first meeting of the board of directors (the "Board") of the Corporation: INCORPORATION WHEREAS, the Certificate of Incorporation of the Corporation was filed in the office of the Secretary of State of the State of Delaware on October PI , 2012 (the "Certificate of Incorporation"); and WHEREAS, the Incorporator of the Corporation has elected the initial directors. • NOW, THEREFORE, BE IT RESOLVED, that all actions heretofore taken on behalf of the Corporation by the Incorporator be,'and they hereby are, ratified and affirmed; and RESOLVED FURTHER, that the Certificate of Incorporation in the form previously filed be, and the same hereby is; approved and adopted as the Certificate of Incorporation of the Corporation, and that a certified copy of the Certificate of Incorporation be inserted by the _ Secretary of the Corporation in the Book of Minutes of the Corporation (the "Minute Book"). ADOPTION OF BYLAWS WHEREAS, it is deemed to be in the best interest of the Corporation that bylaws be adopted. NOW, THEREFORE, BE IT RESOLVED, that bylaws in the form attached hereto as Exhibit A be, and they hereby are, adopted as the Bylaws of the Corporation; and RESOLVED FURTHER, that the Secretary of the Corporation be, and hereby is, authorized and directed to execute and deliver a certificate as to the adoption of said Bylaws by - • these resolutions, to- affix such certifieate-imrn ediately following the last page thereof and to ' • cause said Bylaws, together with such certificate, to be placed in the Minute Book. ELECTION OF OiF10ERS RESOLVED, that the following persons be, and they hereby are, nominated and elected to the indicated offices of the Corporation set forth before their names below, to serve until such persons resign or are terminated or replaced by a duly authorized action of the Board: Title President and Chief Executive Officer Vice President Treasurer Secretary Name Ryoji Sakai Kazuo Otsuka Akihiko Shimizu Hisataka No guchi CHAIRMAN RESOLVED, that Toshifunmi Suzuki shall serve as the nonexecutive Chairman of the Board. BANK ACCOUNT WHEREAS, the opening of a bank account for the use of the Corporation is deemed advisable. NOW, THEREFORE, BE IT RESOLVED, that the Corporation be, and it hereby is, authorized to establish bank accounts for use in its business at such times as the officers opening the same shall determine. APPLICATION FOR TAX IDENTIFICATION NUMBER WHEREAS, it is deemed to be in the b.est interests of the Corporation that the Corporation apply for and obtain any necessary Employer Identification Number from the Internal Revenue Service (the "IRS"). NOW, THEREFORE, BE IT RESOLVED, thatthe Authorized Officers hereby are authorized and directed to prepare and file, or cause to be prepared and filed, appropriate applications to obtain -an Employer Identification Number from the IRS. SHARES JNCERTIECATED WHEREAS, it is deemed to be in the best interests of the Corporation that the shares of the Corporation 15a uncer ti fi ated: ' 2 NOW, THEREFORE, BE IT RESOLVED, that the shares of the Corporation shall be uncertif cated. AUTHORIZATION AND ISSUANCE OF SHARES RESOLVED, that upon the obtaining of a tax identification number and the opening of a • bank account for the Corporation, the Corporation (i) shall issue 99,500 shares of Common Stock and 500 share's of..Preferred Stock to Seven -Eleven Japan Co., Ltd. ("Seven -Eleven Japan") in exchange for all of the shares of 7 -Eleven, Inc., a Texas corporation and (ii) thereafter shall issue 1,470 shares of Comtnon Stock to Seven Eleven Japan against a concurrent cash contribution by • Seven Eleven Japan of $124,950,000 USD. The par value of the shares of Common Stock and Preferred Stock so issued (and only the par value thereof) shall be designated as "capital" of the Corporation. GENERAL AUTHORIZATION; RATIFICATION RESOLVED, that any specific resolutions that may be required to have been adopted by the Board in connection with the actions contemplated by the foregoing resolutions be, and the same hereby are, adopted, and the officers and'other authorized representatives of the Corporation hereby are authorized to certify as to the adoption of any and all such resolutions; RESOLVED FURTHER, that any acts of any officer or officers of the Corporation and any person or persons designated and authorized to act by any officer of the Corporation, which acts would have been authorized by the foregoing resolutions except that such acts were taken • prior to the adoption of such resolutions, hereby are severally ratified, confirmed, approved and adopted as the acts of the Corporation; and RESOLVED FURTHER, that the officers, directors and other authorized representatives of the Corporation be, and they hereby are, authorized and directed to execute and deliver all documents and to take all such actions as they may deem necessary, advisable or appropriate in order to carry out the purposes of these resolutions. [The remainder of this page has been intentionally left blank.] 3. IN WITNESS WHEREOF, the undersigned has executed this written consent as of the date first written above. Name: Masaaki Kamata Name: Takashi Hira SIGNATURE PAGE TO SEI ASSET MANAGEMENT & INVESTMENT COMPANY INITIAL ORGANIZATIONAL RESOLUTIONS ' efaware The First State PAGE 1 I, JEFFREY W: BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF INCORPORATION OF "SEJ ASSET MANAGEMENT & INVESTMENT COMPANY", FILED IN THIS OFFICE ON THE SEVENTEENTH DAY OF OCTOBER, A.D. 2012, AT 9:25 O'CLOCK A.M. A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO - THE NEW CASTLE COUNTY RECORDER OF DEEDS. 5228796 81'00 121136653 You may verify this certificate online at Corp.delaware.gov/authver.shtntl Jeffrey W. Bullock, Secretaryof State AUTHENTION: 9921837 DATE: 10-17-12 CERTIFICATE OF INCORPORATION OF SEJ ASSET MANAGEMENT & INVESTMENT COMPANY State of Delaware Secretary of State Division of Corporations Delivered 09:28 AM 10/17/2012 . FILED 09:25 AM 10/17/2012 SRV 121136653 - 5228796 FILE ARTICLE I NAME OF CORPORATION The name of the Corporation (the "Corporation") is: SEJ Asset Management & Investment Company _ . _ __ARTICLE REGISTERED OFFICE The address of the registered office of the Corporation in the State of Delaware is c/o Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, New Castle County, and the name of its registered agent at that address is The Corporation Trust Company, ARTICLE III PURPOSE The purpose of the Corporation is the: A. Maintenance and management of intangible investments (including, but not limited to, stocks, bonds, notes, and other debt obligations, patents, patent applications, trademarks, trade name, and similar types of intangible assets), the collection and distribution of the income from such investments, arid the sale of such investments; and B. . Maintenance and management (including lease) or real and tangible personal•• • property physically located outside the state of Delaware, the collection and distribution of the income from such investments, and the sale of such property. ARTICLE IV AUTHORIZED CAPITAL STOCK A. The total number of shares of all classes of stock which the Corporation shall have the authority to. issue is 101,470, of which 100,970 shall be designated as Common Stock, par value $1.00 per share (the "Common Stock") and 500 shall be designated as Preferred Stock, par value $1.00 per share (the "Preferred Stock"). Subject to the rights, if any, of the holders of any outstanding series of Preferred Stock, the number of authorized shares of any class or classes of stock of the corporation. may be increased or decreased (but not below the number of shares --then outstanding)-byhe affirmative vote of the holders of capital stock of the Corporation representing a majority in voting power represented by all outstanding shares of capital stock of the Corporation entitled to vote generally, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law of the State of Delaware (the "GCL") or any successor provision. B. Each share of Preferred Stock shall, except as required under the GCL, be nonvoting, shall have the right to receive dividends and distributions other than in liquidation on a pad passu basis with each share of Common Stock and, in liquidation, each share of Preferred Stock shall have the right to receive $85,000 prior to any amounts being payable on account of the Common Stock and, after such liquidation preference has been paid, to share on a pan passu basis with each share of Common Stock in any amounts remaining to be distributed in liquidation. ARTICLE V BOARD POWER REGARDING BYLAWS . In furtherance and not in -limitation of the powers conferred by -statute, the Board of " Directors is expressly authorized to make, repeal, alter, amend and rescind the bylaws of the Corporation. ARTICLE VI ELECTION OF DIRECTORS Elections of directors need not be by written ballot unless the bylaws of the Corporation shall so provide. ARTICLE VII LIABILITY • A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of -a director of the Corporation -hereunder in respect of any act- of of iiSsion occurring prior to the time of such amendment, modification or repeal. ARTICLE VIII CORPORATE POWER The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred on stockholders herein are granted subject to this reservation. ARTICLE- IX PERPETUAL EXISTENCE 'The Corporation: is to have perpetual existence. 2 ARTICLE X INCORPORATOR The name and mailing address of the incorporator of the Corporation is: Sasha Friedman c/o Gibson, Dmn & Crutcher 200 Park Avenue, 48th Floor New York, New York 10166 [The remainder of this page has been intentionally left blank.) 3 THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of incorporating and organizing a corporation under the GCL, does make and file this Certificate of Incorporation. Dated: October 17, 2012 By: Is/ Sasha Friedman Name: Sasha Friedman Title: Incorporator [Signature Page to Certificate of Incorporation of SEJ Asset Management & Investment Company] UNANIMOUS CONSENT Of THE BOARD OF DIRECV5Rs OF 7 -ELEVEN, INC. Pursuant to the provisions of -Section 6.201. of the Texas Business Organizations Code, the undersigned,, being all of the members. of the Board of Directors of 7 -Eleven, Inc,, a•Texas corporation (the 'Company" or °SEI"), waiving all call and notice of a meeting of the Board of Directors of the Company, hereby adopt the following resolutions without the holding of a meeting,. such resolutions to have the 'same force and effect as if they had been adopted at a duly called and held meeting of the Board of Directors•of the Company,'and direct that a copy thereof be filed with the' .minutes of the proceedings of the Board of Directbrs of the Company: WHEREAS, the Company holds, and operates under a number of 3.2% beer licenses in the State of Colorado, and. • • WHEREAS, the Company has certain ongoing licensing and compliance related r" obligations pursuant to the State of Colorado' Liquor Code as well as regulations promulgated pursuant thereto; and WHEiREAS•,•the Company had previously designated five officers and directors to be "qualified pal ons" of the Company with respect to the 3.2% beer licenses outstanding. in .tlie state of Colorado pursuant to the °Master File" system of the State of Colorado Liquor Enforcement Division; and" WHEREAS, two of those five officers and directors have resigned from the . • Company: Kazuo Otsuka as of 17ecernber 31, 2007; and Shiro Ozeki as of July 5, 2010; and WHEREAS, the Company wishes to have the other three officers 'and directors, as listed below; 'remain as "qualified persons" of the Company with respect to the 3.2% beer licenses in the State of Colorado: ° Joseph NI. DePinto, Director, President and Chief Executive Officer; Stanley W. Reynolds, Executive Vice President and Chief Financial Officer; and ° David T. Fenton, Senior Vice President, General Counsel and Secretary. NOW THEREFORE, the following resolutions are hereby adopted: RESOLVED, that Joseph M. DePinto is hereby designated as -the "responsible . director" for the purposes of ongoing compliance and licensing matters. related -to -the Company's 3.2% beer. licenses in the State of Colorado; and 174114v1 1 • FURTHER RESOLVED, that Hie President 'and Chief Executive Officer, any Vice President (induding Executive and Senior Vice Presidents), the . se crefary, the Treasurer and the•Controt[er are each hereby authorized and directed, in the name and on behalf of the Company, to do or cause to be done any and elf such arts and things. and to execute and deliver any and all such documents•and papers as such officer may deem necessary or appropriate to carry into effect the full intent and purpose of the foregoing resolutions. IN•WITNESS WHEREOF, the undersigned have executed this Unanimous Consent, and the actions contemplated hereunder, shall be deemed epprdved by the Board as of the 8th day of November, 2010, and effective upon approval by the State of Colorado Liquor Enforcement Uivisfon. 7 Toshifi.imi Suzuki Jay W. Chai Joseph M. DePinto 1741141/1 Nobutake Sato 2 05 2010 8:18PM HP LASERJE.T FRX 2033217092 page 1 FURTHER ti SOLVED,, that t₹te•Ptesident and Chief Exesr: utive•Oiiicar, any Vice Presidealt•(inoluding Exftouti re and SiJot Vice P.re'sid Secre#ary,. the-Treesurer and {he Coat jer are c )` the direcEeci,'iri !�s'tisrne,and ch behalf of the•C • ea h hereby airtliarized and any and 'Ir the gcis and thtt-t arnpany►.,to do or cause tb be done ! •and to execute and deliver any an •ail surd doctnnents and papsrs•as such officer play deem nec8sary or appropriate to carry Into effect thafvlf intent and purpose of the.fetegoing resolutions. IN WITNESS.WNEOF, the undersigned have eXectrted this Unanknoirs Consent:.arxd the at-iiorm dr-rten:plated hereunder, shell be deer ed approved by the Basin:flits of the 6°' day of November, 2010, and effective Upon approval by the State of Colorado Liquor Ehforoetnent Division: Joseph M, DePinto 174114v1 • Nabutake Sato 2• FURTHER REsOLVED, that the President and Chief Executive. Officer, any Vice President .(including Executive and Senior Vice Presidents), the Secretary, the Treasurer and the Controller are each..hereby authorized and directed, in the name and on behalf of the Company, to do or cause -to be done any and all such acts and things and to execute and deliver any and all such documents and 'papers as such officer may deer -necessary or appropriate to carry into effect the full intent and purpose of the•foregoing resolutions. 1N WiTNESS WHEREOF, the undersigned have executed this Unanimous Consent, and the actions contemplated hereunder, shall be deemed approved by the board as of the 8th day of November, 2010, and effective upon approval• by the State of Colorado Liquor Enforcement Divisi9n. • Toshifumi Suzuki Jay W. Chaff - . 57Mf41 - Masaaki Karnata Nobutake Sato 2 UNANIMOUS CONSENT OF'1'.i E BOARD OF DIRECTORS OF 7 -ELEVEN; INC. 'Pursuant to the provisions of Article 9.10(B) of the Texas Business Corporation Act, the undersigned, being all of the members of the Board of Directors of 7 -Eleven, Inc., a Texas corporation ("SET"), waiving all call and notice of a meeting of SEI's Board of Directors, hereby adopt the following resolutions without the holding of a meeting, such resolutions to have the same force and effect as if they had been adopted at a duly called and held meeting of SEI's Board of Directors, and direct that a copy thereof be filed with the minutes of the proceedings of SEI's Board of Directors: Merger of SEJ Service LLC and SEJ T+'inanceLLC with and into SET WHEREAS, it is proposed that, pursuant to that certain Agreement and Plan of Merger by and among SEJ Service LLC, a Delaware limited liability company ("SEJService"), SEJ Finance LLC, a Delaware limited liability company ("SEJ Finance" and together with SET Service, the "Merged Entities"), and SEI, in substantially the form attached hereto as Exhibit A (the "Merger Agreement"), each of • the Merged Entities be merged with and into SET, with SET to be the surviving entity in the merger (the "Merge?'); and WHEREAS, to effect the Merger, it is proposed that SRI and the Merged Entities file Articles of Merger; substantially in the form attached hereto as Exhibit B, with the Secretary of State of the State of Texas (the "Articles of Merger") and a Certificate of Merger, substantially in the form attached hereto as Exhibit C, with the Secretary of State of the State of Delaware (the "Certificate of Merger"); and WHEREAS, the Board believes that the Merger is in the best interest of SET; NOW, THEREFORE, BE IT RESOLVED, that the Merger is hereby approved in a1 respects,. subject• to the terms and conditions set forth in the Merger . Agreement; and FURTHER RESOLVED,, that the form, terms and provisions of. the Merger Agreement, the Articles of Merger and the Certificate of Merger (collectively, the "Merger Documents") are hereby approved in all respects; and - FURTHER RESOLVED, that the Merger Documents be submitted to the shareholders of SRI for approval with the redommendation from the Board that the shareholders of SRI approve the Merger Documents; and FURTHER.RES OLVED, that upon the 'satisfaction of all conditions stated in the Merger -Agreement (except as may be waived in the discretion of the officers of SET) and upon approval of the Merger Documents by the shareholders of SEI, the officers of SEI, acting alone or together, are hereby authorized to execute the Merge Agreement and to execute and file the Articles of Merger and- the Certificate of Merger in accordance with the requirements of law, and to cause the Merger to become effective all without further action by the Board; and FURTHER RESOLVED, that the officers of SEI, acting alone or together,• are hereby authorized, empowered and directed to execute arid deliver, in the name of and on behalf of SRI, any amendments to the Merger Documents and any other documents as are provided' for in the Merger Agreement or otherwise related to the transactions contemplated thereby,as any such officer may approve (such approval to be conclusively evidenced by the execution and delivery of such amendments by such officer); and FURTHER RESOLVED, that the officers of SRI, acting alone or together, are hereby authorized, empowered and directed, in the name and on behalf of SEI, to take such additional actions as any such officer may deem necessary, appropriate or convenient to carry out and put into effect the purposes of the Merger and the transactions contemplated by the Merger Agreement. Ratification and Approval oif Further Action RESOLVED, that all actions of any kind heretofore taken by any officer of SRI in connection with the transactions contemplated by the foregoing resolutions are hereby ratified, confirmed and approved in all respects; and FURTHER RESOLVED, that the officers of SRI, acting alone or together, are hereby authorized and directed to take such further actions and to enter into, execute and deliver such other agreements and instruments as any such officer may deem necessary or advisable in order to effect the intent of the foregoing resolutions. 2. This Unanimous Consent may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same insfrument. 'IN WITNESS WHEREOF, the undersigned have executed this Unanimous Consent as of the 24th day, of November, 2009, and unless otherwise specified herein, any actions contemplated under this Unanimous Consent will be deemed effective as of than date. Toshifumi zu1d Masaaki Kamata Jay W. Chaff Joseph M. DePinto Nobutake Sato r 13 09 09:34p Jay Chai 203-625-5574 p.1 This Unanimous Count Tay be executed in two of more counterparts, each of which shy be deemed an original, but all of which together shall constitute one and the sauce instrument VITIMESS WHEREOF, the undersigned have executed. N4 Unanimous Consent as of the 24th day ofNovember, 2009, and unless Dam -wise specified herein any actions contemplated 'miler this Unanimous Consent will be deerited effective as of that date. lasaalcl. Kamata Nobtitake Sato This Unanimous Consent may be executed in tWo or more counterparts, each of which shall be deemed all original, but all n which. instrument. IN WITNESS WilEREOF, the undersigned have executed this *Unanimous Consent as of the 24th day of November, 2009, and unless otherwise specified herein, any actions contemplated under this Unanimous Consent will be deemed effective as of that date. Toshifumi Suzuki Masaaki Kanaata ray w. Chat Nobutake Sato .3 EIBI' ' A. • Merger Agreement AGREEMENT AND PLAN OF MERGER OF SET SERVICE LLC AND SEJ FINANCE LLC WITH AND INTO 7 -ELEVEN, INC. THIS AGREEMENT AND PLAN OF MERGER -(this "Agreement") dated effective as of November 24, 2009, is entered into by and among SET Service LLC, a Delaware limited liability company ("SKI Service"), SET Finance LLC, a Delaware limited -liability company ("SEJFinance"), and 7 -Eleven, Inc., a Texas corporation ("7 -Eleven" and collectively with SEJ Service and SET Finance, the "Pt ies')_ WHEREAS, it is proposed that both SEJ Service and SEJ Finance merge with and into 7 - Eleven upon the terms and subject to. the conditions set forth herein and in accordance ivith the laws of the State of Delaware and the State of Texas (the "Merger"); and WHEREAS, Seven Eleven Japan Co., Ltd., a Japanese corporation ("SEJ") is the Sole Member of SET Service ("SE! Service Sole Member"); and WHEREAS, SET is the Sole Member of SEJ Finance ("SEJ Finance Sole Member"); and WHEREAS, the SEJ Service Sole Member and the Board of Managers of SEJ Service have approved this Agreement and. the Merger; and • WHEREAS; the SET Finance Sole Member and the Board of Managers of SET Finance have approved this Agreement and the Merger; and WHEREAS, 7 -Eleven's Shareholders and the Board of Directors of have approved this Agreement and the Merger; and WHEREAS, upon execution hereof, this Agreement will be approved by SEJ Service, SET Finance and 7 -Eleven as the plan of merger required by Section.18-209(b) of the Delaware Limited Liability Company:Act ("DLLA") and Article 5.01 of the Texas- Business Corporation Act ("TBCA"); respectively; • _ NOW, THEREFORE, in consideration of the Mutual promises•set.for.th herein, the parties hereto agree as. follows: SECTION I Effect of the Merger; Manner and Bases of Converting and Canceling Interests A. At the Effective Time (as defined below), each of SET Service and SET Finance shall be merged with and into 7 -Eleven, the separate orgari7ational existence of each of SET Service and SET Finance- (except as may be continued by operation of law) shall cease, and 7 -Eleven shall continue as the surviving entity, all with the effects provided by applicable law. 7 -Eleven, in its capacity as the surviving entity of the Merger, is sometimes referred to herein as the "surviving Entity." SET Service and SET Finance, in their respective capacity as the merged entities, are sometimes referred to herein as the "Merged Entities." B. At the Effective Time, by virtue of the Merger and without any further action by (a) the Parties, (b) their repective.Board of Managers or Board of Directors, (c) Members or Shareholders or (d) any other person: (1) The membership interests of SET Service shall be cancelled and converted . into the' right of the SET Service Sole Member to receive 63,696,126 aggregate shares of COMMOL1 Stock, $0,0001 par value, of 7 -Eleven ("7 -Eleven Common Stock"); (2) The membership interests of SET Finance shall be cancelled and converted into the right of the SET Finance Sole Member to receive 45,693,255 aggregate shares of 7 -Eleven Common. Stock; (3) Each share of 7 -Eleven Common Stock owned by each of SET Service and SET Finance shall automatically be canceled, retired and cease- to exist without any conversion thereof and no payment shall be made with respect thereto; and (4) The shares of 7 -Eleven Common Stock issued and outstanding immediately prior to the Effective Time, other than those owned by SET Service or SET Finance, shall remain outstanding and otherwise unaffected. - C. At the Effective Time, the Surviving Entity shall possess, enjoy and succeed to, without other transfer, all the rights, privileges, immunities, powers and franchises of each of the Merged Entities, both of a public and a private nature, and shall be subject to all the restrictions, limitations and duties of each of the Merged Entities. The Surviving Entity shall thereafter be responsible and liable for all liabilities and obligations of each of the Merged Entities and any claim existing or action or proceeding pending by or against each of the Merged Entities may be prosecuted to judgment as if the Merger had not taken place, or the Surviving Entity may be proceeded against or substituted in place of the Merged Entities. Neither the rights of creditors nor any liens or security interests upon the property of the Surviving Entity or either of the Merged Entities shall be impaired by. the Merger. • D. All corporate acts, plans, policies, resolutions, approvals and authorizations of the Managers Members,.officers and agents of the' Merged Entities that were valid aiid effective immediately prior to the Merger shall be taken for all purposes as the acts, plans, policies, resolutions, approvals and authorizations of the Surviving Entity and shall be as effective and binding thereon► as the same were with respect to the Merged Entities. . E. The assets and liabilities of each of the Merged Entities, as of the Effective Time of the Merger, shall be taken upon the books of the Surviving Entity at the amounts at which they are carried at that time on the books of the Merged Entities. The amount of Me capital. surplus and earned surplus accounts of the Surviving Entity after the Merger shall; be determined by the Board of Directors of the Surviving Entity in accordance with generally accepted accounting principles. SECTION II Effective Time A. Provided that this Agreement has not been terminated and. abandoned pursuant to Section IV hereof, the Surviving Entity and the Merged Entities shall cause a Certificate of Merger to be executed, acknowledged and delivered to the Secretary of State of the State of Delaware and Articles of Merger to be executed, acknowledged and delivered' to the Secretary of State of the State of Texas, as.provided by the DLLA and the TB CA, respectively. B. The 'Merger shall become effective as of 11;59 p.m., Eastern Standard Time, on December 31, 2009 (the "Effective Time"). SECTION III Articles of incorporation, Bylaws, Directors and Officers A. The Articles of Incorporation of 7 -Eleven in effect at the Effective Time shall be the Articles of Incorporation of the Surviving Entity. B. The Bylaws of 7 -Eleven as in effect at the Effective Time shall be the Bylaws of the Surviving Entity. C. The members of the Board of Directors and the officers of 7 -Eleven holding office immediately prior to the Effective Time shall be the members of the Board of Directors and the officers of the Surviving Entity following the Merger (holding the same positions as they held with 7 -Eleven immediately prior to the Effective .Time), and shall hold. such positions until the expiration of their current terms, or their prior resignation, removal or death. SECTION IV Aniendrnent or Abandonment A. The Merged Entities and 7 -Eleven, by mutual consent of their respective Board of Managers or Board of Directors, as the case may be, may amend, -modify or supplement this Agreement in any m maser as may agreed upon by them in writing. B. This Agreement may be terminated and the Merger may be abandoned for any reason by a resolution adopted by either of the Merged Entities Board of Managers, or the Board of Directors of 7 -Eleven at any tithe prior to the Effective Time. Tn the event of the termination of this Agreement, this Agreement shall forthwith become void and thereshall be no liability hereunder on the part of any party hereto or its respective officers or agents, except liability for intentional breach or misrepresentation or common law fraud. SECTION V Miscellaneous A. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument. B. This Agreement is not intended to confer upon any person (other than the parties hereto and their respective successors and assigns) any rights or remedies hereunder or by reason hereof. [SIGNATURE PAGE FOLLOWS] 1N WITNESS WHEREOF, the undersigned have each caused this Agreement to be executed by duly authorized officers as of the date first written above. SEJ SERVICE LLC, a Delaware limited liability company By: Is/ Kazuo Otsuka Kazuo Otsuka President and.Board of Managers SEJ FINANCE LLC, a Delaware limited liability company By: /s/ Shiro Ozeki Shiro Ozeki. President and Board of Managers • J 7 -ELEVEN, INC., a Texas corporation By: Is/ Joseph M. DePinto Joseph M. DePinto President and CEO E)wiE 'I` E Articles of Merger CERTIFICATE OF MERGER MERGING SEJ SERVICE LLC (a Delaware limited liability company) . AND SE! FINANCE LLC (a Delaware limited. liability company) "WITH AND INTO 7 -ELEVEN, INC. (a Texas corporation) Pursuant to Title 6, Section 18-209 of the Delaware Limited Liability- Cartipany Act, 7 -Eleven, Inc., a Texas corporation, does hereby certify that: FIRST: The name, type of entity and jurisdiction of formation of each of the constituent entities are as follows: Name • SEJ Service LLC SEJ Finance LLC 7 -Eleven, Inc. Type of Entity Jurisdiction of Formation Limited Liability Company Delaware Limited Liability Company Delaware Corporation Texas SECOND: An Agreement and Plan of Merger ("Merger Agreement") has been approved and executed by each of the constituent entities. THIRD: The name of the surviving corporation of the merger is 7 -Eleven, Inc.,. a Texas. corporation. FOURTH:: The executed Merger Agreement is on file at a place of business of the surviving corporation at One Arts Plaza, 1722 Routh Street, Suite 1000, Dallas, Texas 75201, FIFTH: • A copy of the Merger Agreement will be furnished. by the surviving corporation, on request and without cost, to any shareholder of the surviving corporation or any member of either of the merging limited liability companies. SIXTH: The surviving entity consents to be sued and served with process; notices and demands in the State of Delaware, and irrevocably appoints. the Delaware Secretary of State as its agent to accept service of such process; in any action, suit orproceeding in Delaware for the enforcement of any obligation of either of the merging limited liability companies. A copy of any such process may be mailed to the office of the surviving corporation at. One Arts Plaza, 1722 Routh Street, Suite 1000, Dallas, Texas 75201. SEVENTH: The merger is to become effective at 11:59 pin., Eastern on December 31, 2009 (the "Effective Thee"). IN WITNESS WHEREOF, 7 -Eleven; Inc,, the surviving corporation, Certificate of Merger to be executed by an authorized officer as of November effective as of the Effective Time. • 7 -ELEVEN, INC. By: Is! 7osenh: M. DePinto Joseph M. DePinto President and CEO Standard Time, has caused this 24, 2009, to be ARTICLES OF MERGER OF SES SERVICE LLC (a Delaware limited liability company) AND • SEJNA.NCE LLC (a Delaware limited liability company) WITH AND INTO 7 -ELEVEN, INC. (a Texas corporation) Pursuant to the provisions of the Texas Business Corporation Act ("TBCA!"), the undersigned foreign limited liability companies and domestic corporation do hereby adopt the following Articles of Merger for the purpose of effecting a merger in accordance with Article 5.01 of the TBCA: 1. The names of the constituent business entities are (a) SET Service LLC, a Delaware limited liability company ("SET Service"), (h) SEJ Finance LLC, a Delaware limited liability company ("SET Finance," and collectively with SRI Service, the• "Merging Entities"), and (c) 7 -Eleven, Inc., a Texas corporation (thd "Surviving Corporation"), • 2. An Agreement and Plan of Merger for merging Merging Entities with and into Surviving Corporation (the "Merger Agreement") has been approved by the respective board of managers, boards of directors, members and shareholders, as applicable, of the constituent business entities. • 3. • An executed copy of the Merger Agreement is on file at the principal place of business of the • Surviving Corporation at One Arts Plaza, 1722 Routh Street, Suite 1000, Dallas, Texas 75201, and a copy of the Merger Agreement will be made available to any member or shareholder, as applicable, of the constituent business entities upon written request at no charge. 4. A written consent of all of the shareholders of the Surviving Corporation approving the Merger Agreement was executed in accordance with TBCA Article 9.10(A)(5) and all required written notices. of such action by writteri consent has been given as required by the TBCA and the bylaws of the•Surviving Corporation. • _._• 5. -The' apptdvT Of•th.e Merger Agreement by the•members of the Merging. Entities and the • shareholders of Surviving Corporation was obtained by written consent, in accordance with the Delaware Limited Liability Company Act (the "DLLCA") and the TBCA, respectively, and any written notice required by either the DLLCA or the TBCA or the constituent documents of either of theMerging Entities or the Surviving Corporation has been given or waived by such members or shareholders. Furthermore, approval of the Merger Agreement was duly authorized by all action required by the DLLCA or the TECA, respectively. 6. Surviving Corporation will continue to exist under the legal name "7 -Eleven, Inc," pursuant to its existing Amended and Restated Articles of Incorporation and the provisions of the laws of the State of Texas. No amendments to the Amended and Restated Articles of • Incorporation -of Surviving Corporation are effected hereby. 7. Surviving Corporation will be responsible for.the payment of all fees and' franchise taxes, . . if any, of Merging Entities and will be obligated to pay such,fees and franchise taxes if the same are not timely paid. 8. The Merger herein provided for shall be effective at 11:59 P.M., Eastern Standard Time, onDecenrber31, 2009. IN WITNESS WHEREOF, Merging Entities and Surviving Corporation have caused these Articles of Merger. to be executed by duly authorized officers as of November 24, 2009. sn SERVICE LLC By: /s/ Kazuo Otsuka Kazuo Otsuka President.and Board of Managers SEJ MANCE LLC By: Is/ Shiro Ozeki Shiro Ozeki. President and Board of Managers 7 -ELEVEN, INC. By: /s/ Joseph DePinto - Joseph M. DePinto President and CEO EX: IB1T C Certificate of Merger , Corporations Section P,O.Box 13697 • Austin, Texas 78711-3697 Office of the Secretary of State Roger Williams Secretary of Slate CERTIFICATE OF MERGER The undersigned, as Secretary of State of Texas, hereby certifies that the attached articles of merger of-. IYG HOLDING COMPANY Foreign Business Corporation Delaware, USA [Entity not of Record, Filing Number Not Available] Into 7 -RI EVEN, INC. Domestic Business Corporation [Filing Number: 17909000] have been filed in thi G. office as of the date of this certificate. Accordingly, the undersigned, as Secretary of State, and by the virtue of the authority vested in the secretary by law, hereby issues this certificate of merger. Dated: 11/09/2005 Effective: 11/09/2005 @ 2:00 p.m. Phone: (512) 463-5555 Prepared by: Lisa Jones Roger Williams Secretary of State Come visit us on. the intemet at http://www.sos,state.tx.usi. Fax: (512) 463-5709 TTY: 7-1-1 Document: 108367900002 ARTICLES OF MERGER MERGING. IYG HOLDING COMPANY (a Delaware corporation) WITH AND INTO 7 -ELEVEN) INC, (a Texas corporation) FICLED In Office of the Secretary of State of Texaa I10Y• 0 9 2005 Corporations Sion. In accordance with the provisions of Article 5,16 of the Texas Business Corporation Act (the "TBCA"), IYG Holding Company, a Delaware corporation ("Parent"), hereby adopts the following Articles of Merger for the purpose of effecting the- merger (the "Merger")' of Parent with and into 7 -Eleven, Inc., a Texas corporation at least' 90% owned by Parent (the "Company"), with the Company continuing in existence following the Merger as the surviving. corporation: 1, The name, type of entity and state of organization of each of the constituent entities that are to merge are as follows: Name of Entity IYG Holding Company 7 -Eleven, Inc, Parent/Subsidiary Type of Entity State of Organization Parent Subsidiary Corporation Corporation Delaware • Texas 2. The number of outstanding shares of each class or series of capital stock of the Company and the number of shares in each class owned by Parent are as follows: Number of Outstanding Number of Outstanding Shares Class Shares Owned by Parent 115,891,066 Common Stock, par 104,914,928 ' value $0.0001 per share 3. The shares owned by Parent represent.90.5% of all outstanding shares of Common Stock, which is the only class or series of shares of the Company outstanding, 4, Attached hereto as Exhibit A is a true and correct copy of resolutions of the. Board of Directors of Parent providing for themerger of Parent with and into the Company, with the Company being the sole surviving corporation. Such resolutions were adopted and approved in accordance with the constituent documents of Parent and the laws of the jurisdiction of organization of Parent on November 9; 2005. 5. • The Merger shall become effective on Wednesday, November 9, • 2005 at 2:00 p.m. Central Standard Tune, jyYDOCS021735198,L0 IN WITNESS CI4) tho utickitipal has duly azouicd ttCaa ArticIc of Montt as of t a 9'i y ofl o1iIztr, 2005, , TYGIIOLDDIG COMFMY (a Dal aware s#ion) 24tamoi Nobutako Seta 'Clt1o: Vleo residue a dDlractor EXHIBIT A RESOLUTIONS* OF Tat BOARD OF DIRECTORS OF IYG HOLDING COMPANY RESOLVED, that IYG Holding Company ("IYGH") merge (the "Merger") with and into 7 -Eleven, Inc, (the "Company") in accordance with the Delaware General Corporation Law (the "DGCL") and the Texas Business Corporation Act (the. "TBCA"); RESOLVED, that the Merger shall be consummated by the filing of a Certificate of Ownership and Merger with the Secretary of State of the State of Delaware and Articles of Merger with the Secretary of State of the State of Texas; RESOLVED, that The Merger shall become effective on. Wednesday, November 9, 2005 at 2:00 p.m. Central Standard Time (the "Effective Time")in accordance with the provisions of Section 103 of the DGCL and Article 10,03 of the '17B CA, • RESOLVED, that, at the Effective Time, IYGH will be merged with and into the Company, the separate existence of IYGH will cease, and the Company will be the surviving • corporation (the "Surviving Corporation") and the Surviving Corporation, without farther action, will possess all the rights, privileges, powers and franchises, public and private, of both, the Company and IYGH and will be subject to all the debts, liabilities, obligations; restrictions, disabilities and duties of both the Coinp'any and IYGH; RESOLVED, that the articles of incorporation of the Company in effect . immediately prior to the Effective Time will be the articles of incorporation of the Surviving Corporation as of the Effective Time until amended in accordance with applicable law; RESOLVED, that the bylaws of the Company in effect immediately prior to the Effective Time will be the bylaws of the Surviving Corporation as of the Effective Time until amended in accordance•With applicable law; RESOLVED, that, from and after the Effective Time, until successors are duly elected or appointed and qualified in accordance with applicable law, the directors of IYGH immediately prior to the Effective Time will be the directors of the Surviving Corporation, and the officers of the Company immediately prior to the Effective Time will be the officers of the Surviving Corporation; RESOLVED, that, at the Effective Time, each share of the common stock, par' Value $0,01 per share, of IYGH which is issued and outstanding immediately prior to the Effective Time will be converted into 1,142,331,37 shares of common stocks par value $0,0p01 per share, of the Surviving Corporation; • RESOLVED, that, at the Effective Time, each share of common stock, par value $o,0001 per share, of the Company ("Common Stock")' issued and outstanding immediately prior to the Effective The (other than any share of Common Stock held by the Company as a treasury •- share. held by any wholly -owned subsidiary of the- Company or held by IYGH or S•arven=Elevven Japan Co.; Ltd. ("Parent") immediately prior to the Effective Time) will be retired, cancelled and converted, by virtue of the Merger and without any action on the part ofthe holder thereof, into the right to receive, without inteiest, an amount in cash equal to $37.50 per share (the "Consideration"), and each such holder of a certificate representing any shares of Common Stock immediately prior to the Effective Time (a "Stock Certificate") will thereafter cease to have any rights with respect thereto except the right to receive (i) the Consideration therefor upon the proper surrender of the Stock Certificate or (ii) paymentfrom the Surviving Corporation of.the "fair value" of such shares of Common Stock as determined under Article 5.12 of the TBCA, subject to the conditions set forth therein; RSOLVED, that, at the Effective Time, each share of Common Stock held by the Company as a treasury share or held by WGH shall be cancelled; RESOLVED, that, at the Effective Time, each share of Common Stock held by Parent or any wholly -owned subsidiary of the Company, if any, immediately prior to the • Effective Time shall remain outstanding and shall not be cancelled; RESOLVED, that, as of the Effective Time, each outstanding option to puichase Common Stock granted under the Company's 1995 Stock Incentive Plan and 2005 Stock Incentive Plan (a "Company Stock Option") shall be canceled and extinguished and each holder of any such Company Stock Option shall be paid by -the Company an amount equal to the product of (1) the excess, if any, of $37.50 over the applicable exercise price for such. Company Stock Option and (ii) the number of shares of Common Stock such holder could have purchased (assuming full vesting of such. Company Stock Option) had such holder exercised such Company Stock Option in full immediately prior to the Effective Time, less any applicable withholding requirements; RESOLVED, that, as of the Effective Time, each outstanding performance share unit granted under the Company's 1995 Stock Incentive Plan (a "Performance Share Unit") shall be canceled and extinguished and each holder of any such Performance Share Unit shall be paid by the Company an amount equal to the Consideration, less any applicable withholding requirements; RESOLVED, that, as of the Effective Time, each outstanding share of restricted stock granted under the Company's 1995 Stock Incentive Plan or 2005 StockIncentive Plan (a "Restricted Share") shall' be canceled and extinguished and each holder of any such Restricted Share.shall be paid by the Company an amount equal to the Consideration, less any applicable Withholding requirements; RESOLVED, that, as of the Effective Time, each share of stock granted under the Company's Stock Compensation Plan fox Non -Employee Directors in the custody of the Company (a "Director's Share") shall be canceled and extinguished and each holder of any such Director's Share shall be paid by the Company an amount equal to the Consideration, less any applicable vithholding requirements; RESOLVED, that; if, after the Effective Time, a shareholder who ccrnplies.with all of the provisions of the TBCA concerning the right of a holder of Common Stookto dissent from the Merger and require appraisal of his or her shares withdraws such shareholder's demand for appraisal, or fails to perfect or otherwise loses such shareholder's right to appraisal, in accordance with the TBCA, such shareholder's shares of Common Stock will be deemed to have been converted as of the Effective Time into the right to receive the Consideration; and RESOLVED, the Merger is intended to constitute a "reorganization," and this resolution adopts the "plan of reorganization," in each case, within the meaning of Section 368 of the United States Internal Revenue Code of 1986, as amended, and the Treasury regulations promulgated thereunder. 1 1 5.7% ;Y+' r4:d^ fag MIN. iever � bic dog m r.Y�.aw.. �,ryY q�y�,y/,�//y�Y }ydµ. ..,..,yr/irv�...i.��.�..��—'�kw�•�ltl1':9•Sii.�PpN�Y4:..'i.ir�% LxIFYtr�InY.{Hwwi'.M.�.tl1�M�.�_Yi.rw..—. .t11" MWrr .•rl.,..,..R'.+•�i 1".,.. ,N,. f4 K'ti. `..:'WP i:: uLt.l ,... r: .vl eatigt11J.l:L'L'-7S3'.r•... r- `� +t . -€Y=LITN ' '•':�,. Y '1:,.L• ..1 J Seven -Eleven Japan Co., Ltd: 100% 1YG Holding Co. t 68.1%1 SEI • 'saris cospora'fibri • / j .. • Public • 26.E"l• . I L. • • • 41..i • "_y'w K._ �••••°w w r J. Yp'.^r r.'•w+t...w W.w.Wrn...,W' • «' w Y�r a �n' i•' s yti.4.�.y�yagM. ..� � i1,'.� refit ww•1'�i, rwa`iai`..r£dw ` v CO' n,..u,a.u"v....yw 7 -Eleven, t'nc. • f. c (entity surviving after merger) • • Etr:*�•t,.YSCrt �sf' Scv r1• —f? ri741'F1' ,a•'.'y`2WETA• •pl, i•.+ to . il.' 1,:r' r'..•li'iu;• ' t�.�;.��s.1. i. .iLrJu 7 = R.w f•Iry •i�i•„al �..%4414/.1 4n �J: • 1'v�. �tl'f.'krtti `" r :a..• a L o`jt !'�d13Y� —• . rSf• • ;' :t _ Seven -Eleven Japan Co., Ltd. ..h - .• l.o0%r / '''°Q0% SEJ Service LLC SEJ Finance LLC • si a or d •,:: tiff' Public tia Ir r b.0°fd Eii 7 -Eleven Organization Chart SEVEN & I HOLDINGS CO., LTD. A Japanese Public Company 100% Stock Ownership SEVEN ELEVEN JAPAN CO., LTD. A Japanese Private Company 100% stock ownership SEJ Finance LLC A Delaware LLC . 39.43% stock ownership 100% stock ownership SEJ Service LLC A Delaware LLC 54.96% stock ownership • 7 -ELEVEN, INC. A Texas Private Company Operates or Franchises 7 -Eleven Stores with Licenses 5.61% stock ownership • •S . AMENDED AND RESTATED ARTICLES OF INCOR1'ORATION OF 7-ELEYEN, INC. ARTICLE ONE 7 -Eleven, Inc.,. a Texas corporation (the "Corporation'), pursuant to the provisions, ofArticle 4.07 of the Texas Business Corporation Act (as amended, the "TBCA"), hereby adopts these Amended' and.Restated Articles of Incorporation, which accurately copy the eon-nd Restated Articles of Incorporation of the Corporation and all amendments thereto that are . m effect to date (collectively, the "Second' Restated Articles of Incorporation"), as .toaUxer • amended by these Amended and Restated Articles of Incorporation as hereinafter set forth, and • .contain no other change in any provisions thereof. ' ARTICLE TWO C These Amended. and Restated Articles of Incorporation amend and restate the Second. Restated. Articles oflneorporation. The amendments to the Second Restated Articles of • Incorporation effected by these Amended and Restated Articles of Incorporation. (collectively, the "Amendments") delete the introductory paragraphs numbered 1 through 5 ofthe Second .Restated Articles of Incorporation, andrevise,,add to or delete Articles Three though.Fi-fteen of 'the Second Restated Articles of Incorporation; The full text of each provision revised or added by the Amendments is as set forth in Article V hereof, ARTICLE THREE The Amendments have been effected in conformity with the provisions of the TB CA, and these Amended and Restated Articles of 'Incorporation and the Amendments effected thereby were duly adopted by the shareholders of the Corporation onNovember 9, 2005. ARTTG`LE FOUR On November 9, 2005, there were 115,891,066 shares of common stock, par value $.0001 per share, of the Corporation outstanding, all of which were entitled to vote on these Amended and Restated Articles of Incorporation and the Amendments effected thereby. The shareholders of the Corporation have approved the adoption of these Amended and Restated. Articles of Lamp oration and the Amendments effected thereby by written consent pursuant to Article 9.10 of the TBCA and any written notice required by Article 9.10 of the TBCA has been given. ARTICLE FIVE The Second Restated Articles of Incorporation of the Corporation, 'as filed with the Secretary of State of the State ,of Texas on. March 6, 1991 and as subseq ter try amended to date, are hereby superseded by the following Amended and Restated Articles of Incorporation, which accurately copy the entire text thereof as amended hereby: Is ;•• tr 1,fYDOcsov742356.6 •...- .�4b_&...-.•.emu•••-..u..-al..�iw.. -••••••••,. -•••••,,•••• ••4:.4 I •.• • ••.u..••.- •. AMENDED AND RESTATED ARTICLES OF INCORPORATION OF 7 r,T•FVEli, INC. • ARTICLE ONE Thename of the Corporationis 7 -Eleven, Inc. .ARTICLE TWO The period of duration of this Corpoiatidn shall be perpetual. ARTICLE THREE The purpose for whiohthe Corporation is organized is the transaction of any or all lawful business forwhich corporations maybe incorporated under the Texas Business • Corporation Act ("TBCA").. • ARTICLE FOUR The total number of shares of capital stock that the Corporation shall have authority to issue is one billion five.rnilkion (1,005,000,000) shares, consisting of five million (5,000,000) shares of prefer>ed stock, par value $.01 per share, and one billion. (1,000,000,000) shares of common stock, par value $,0001 per share. The preferred stock may be divided into • and issued by the Corporation from tithe to time in one or more series as may be fixed and determined by the board of directors of the Corporatioia. The relative rights and preferences of • the preferred stock of each series vine such as are stated in. any resolution .or resolutions adopted by the board of directors- setting forth. the designation. of that series and fixing and determining the relative rights and preferences thereof, The board of direc₹ors of the Corporation hereby is authorized to fix and determine the designations, preferences, limitations and relative or other rights (including, without limitation, voting rights, full or limited, preferential rights to receive dividends or assets on liquidation, rights of conversion or exchange • into couunon stock, preferred -stock of any series or other securities, any right of the Corporation to exchange or convert shares into Common stock, preferred stock of any series or other securities, or redemption provisions. or sinking fund provisions) as 'between or among series of preferred stock and as between the preferred• stock or any series thereof and the common stock, and the qualifications, limitations or restrictions thereof, if any, all as shall be stated in one or more resolutions adopted by the board of directors of the Corporation. 7 TYDOCs02(142356.6 2 J F.' 1• • 1. • • • • .... .••• ARTICLE FIVE The street address of the Corporation's registered office is 701 13razos Street, Suite 1050, Austin, Texas 78701, and the name of its registered agent at this address is Corporation Service Company d/b/a CSC— Lawyers Incorporating Service Company. ARTICLE SIX No shareholder of the Corporation, by reason of such person holding shares of any class, shall have atiy preemptive or preferential right to acquire, subscribe for, purchase or receive any..additional, unissued or treasury shares of any class of stock of the Corporation now or hereafter to be authorized, or any notes, debentures, bonds or other securities convertible into • or carrying any right, option or warrant to subscribe for or acquire shares of any class of stock' '•now or hereafter'to be authorized, whether or ndt the issuance of.any such shares, or such notes, debentures, bcind.•s or other securities, would adversarya€fecr the dividends or voting righfs"of such shareholder, and the board of directors may authorize the issuance of shares of any class of .stock of the corporation, or any notes; debentures, bonds or other securities convertible into or carrying lights, options or warrants to subscribe for or acquire shares of any class of stock, vithout offering any such shares, notes, debentures, bonds or other securities either in whole or in part, to the. existing shareholders of any class of stock. Any shareholder of the Corporation haying the right to vote, in person or by proxy, at any meeting of the shareholders shall be entitled to one vote for each share of stock held by such person, provided that no holder of common stock of the Corporation shall be entitled to cumulate his or her votes for.,the election of one or more directors or for any other purpose_ ARTICLE SEVEN (a) The name and address of the persons now serving as the Corporation's • duectots and who shall hold office until their respective successors shallbe elected and qualified :are: ,• . . NYDOCS02-/742356.6 3 ≥ obutake Sato Name Address TosL±th i Suzuki Seven -Eleven Japan Co., Ltd. 8-8-Nibancho, Chiyoda-ku Tokyo 102-8455, japan Masaaki Kamata Seven -Eleven japan Co., Ltd. • 8-8 Nibancho, Chiyoda-ku Tokyo 102-8455, Japan. Seven -Eleven Minn Co., Ltd. 8-8 Nibancho, Chiyoda m. Tokyo 102-8455,1apan (b) The number of directors of the Corporation shall be fixed by, or in the manner provided. in, the bylaws. • ` • ARTICLE EICIdT No director of the Corporation. shall be liable to the Corporation or its shareholders for mdnetary damages for an act or omission in. the direcfot'.s capacity as a director, . except to the extent' otherwise expresslypxovided by a statute of the State of Texas. All directors of the Corporation shall be entitled to indemnification by the corporation to the maximum extent permitted by the TDCA (or such comparable statutoryprovision governing inderi;nifcation by a Texas corporation of its directors as may from time to time be applicable). If the TBCA or the Texas Miscellaneous Corporation Laws 'Act *hereafter is amended. to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the Corporation, in addition to the limitation on personal liability provided herein, shall be eliminated or limited to the fullest extent permitted by the amended statute. Any amendment, • repeal or modification of this Article VII[ shall be prospective only and shall not adversely affect any right or protection of a director of the Corporation existing at •the time of such amendment, repeat or modification. ARTICLE NINE A special meeting of the shareholders of the Corporation may only be called by the board of directors, the Chairman of the board of directors or the President of the Corporation, or the holders of not less than fifty (50%) percent of the shares of capital stock of the Corporation entitled to vote at the proposed meeting. ARTICLE TEN To the fullest extent allowed by Article 9,10 of the TBCA or • any successor statutory provision, as amended. from time to time, any action required by the 'I'BCA•to be taken at any annual or special meeting of shareholders, or any action which maybe taken at any annual • 4' NYDOCS02/7423$6.6 4 • • . •••• ...... . ..........•..4.•..w•...tu2,_• asaJ.••In.. . p ♦ • , . • • ...-«.... . I . 4.......... i or special meeting of shareholders, may be taken without a meeting, without prior notice, and without:a vote, if a consent or consents in writing, setting forth the action so taken, shall -be signed:by the bolder or holders of shares having not less than the minimum number of votes that would be necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and vo ted; • 14YDOCS02/142356,6 , • 5 r • • IN WITNBSS WHEREOF, the undersigned has executed these kneaded and . Restated Articles of Incorporation this 9th day of November, 2005. By; Name: ` ate k mith, r ; Title: E ecu₹ive Vice P esident, General Comase1 and Secretary gh.e First State PAGE 1 2, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE!, DO HEREBY CERTIFY THE ATTACHED IS ,A TRUE AND CORRECT COPY OF VIE CERTIFICATE OF FORMATION OF 'TSEJ' SERVICE LLC'r, FILED IN THIS OFFICE ON. THE SEVENTH DAY OF NOVEMBER, A _ D . 2005 „ AT 11 : 13 O ► CLOCK A.M. 4055425 8100 050906467 Tarr et Smith indsor, S crz i-j of -State • AE TEENTICATION: 4278911 DATE: 11-07-05 . LLC. CERTIFICATE OFFORlYAATION OF SEJ SERVICE LLC State of De ,1Pa- e Secset:ary of State Division of Cor.poratioZLs Delivered 11:24 2isf 11/07/2006 F'ILED•1I:13 .f 11/07/2005 SW 0.50906467 - 40.5.5423 FIB This Certificate of Formation of SEJ Service LLC (the "LLC"); dated. as of November 7, 2005, is being duly executed. and•fsledby Kazuo Otsuka, as an. authorized person, to form a limited liability company under the Delaware Limited Liability Company Act (6 Del. C. g 18-101 et g§g,). . FIRST. The name of the limited liability company formed hereby is SEJ Service SECOND, The address of the registered office of the LLC in the State of • Delaware is Corporation Service Company, 2711. Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. TAD. The name and address of the registered agent for service of process on the LLC in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808, IN WITNESS HEREOF, the undersigned has executed and filed this Certificate of Formation as of the date first written above. By: is/Kazuo Otsuka Kazuo Otsuka LIMITED LIABILITY COMPANY AGREEMENT OF SE•J SERVICE LLC The undersigned member (the "Undersigned Member") hereby forms a limited liability company pursuant to and in accordance with the Delaware Limited Liability Company Act, 6 Del. C. § 18-101, et mg.. (the "Act"), and hereby declares the following to be the Limited Liability Company Agreement (the "Agreement") of such limited liability company: I, Name, The name of the limited liability company formed hereby is SEJ Service LLC (the "LLC"), 2. Purpose and Powers, The LLC is formed for the object and purpose of, and the nature of the business to be conducted and promoted by the LLC is, engaging in any lawful act or activity for which limited liability companies maybe formed under the Act and engaging in any and all activities necessary or incidental to the foregoing, 3, Registered Office. The registered office of the LLC in the State of Delaware is located at Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808, 4, Registered Agent, The name and address of the registered agent of the LLC for service of process on the LLC in the State of Delaware is Corporation Service Company, 2711 'Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. 5. Admission. Simultaneously with the execution and delivery of this Agreement and the filing of the Certificate of Formation with the Office of the Secretary, of State • of the State of Delaware, the Undersigned Member is admitted as the sole Member of the LLC, The name and address. of the Undersigned Member areas follows: Seven -Eleven Japan Co., Ltd, • 8-8; Nibancho, Chiyoda-ku, ' Tokyo 102-8455, Japan 6, Capital Contributions, The Undersigned Member agrees to make the following capital contribution to the LLC (its "Capital Contribution"): 60 shares. of common stock of IYG Holding Company, a Delaware corporation ("IYGH"), representing 60% of the issued and outstanding shares of common stock of IYGH, The Undersigned Member is not required to make any contribution of property or money to the LIrC in. excess of its Capital Contribution, 7. Tax Treatment. The Undersigned Member intends the LLC to be treated as an entity taxable as a corporation for U. S, federal, state and local income tax purposes as of the date • hereof, • The Undersigned Member shall, and shall cause LLC, which is hereby authorized, to file within 75 days of the date hereof, all necessary elections required for the LLC to be treated as. an • • entity-taxableas aeor-pgration far such -purposes a of the date hereof, ncluding, without' • limitation, Internal Revenue Service Form 8832 (or any successor Form), . NYDOCS02/741529.6 8, Distributions, The Board of Managers (as defined below) may cause the LLC to distribute any cash held by it which is neither reasonably necessary for the operation of the LLC nor in violation of Sections 18-607 or 18-804 of the Act to the Undersigned Member (or in the event additional Members are admitted to the LLC, the Members). at any time, 9, Management, (a) Board of Managers. The management of the LLC shall be vested in a Board of Managers (the "Board of Managers") elected by the Undersigned Member, The total number. of members on the Board ofManagers (the "Managers") shall be one unless otherwise fixedat a different number by an. amendment' hereto or a resolution signed by the Undersigned Member, The Undersigned Member hereby elects as the initial Manager of the LL - C Kazuo Otsuka to serve until his successor is elected and qualified, A. Manager shall remain.in office until removed by a written instrument signed.by the Undersigned Member or until such. Manager resigns in a written instrument delivered to the Undersigned Member or such Manager dies or is unable to serve. In the event of any such vacancy, the Undersigned Member may fill the - vacancy, Each Manager shall have one (1) vote, Except as otherwise provided in this • Agreement; the Board of Managers shall act by the affirmative vote of the. sole Manager or, if there is more than one Manager, a majority of the total number of Managers. A Manager shall not be liable under a judgment, -decree or order of court, or in any 'other manner, for a debt, obligation or liability of the LLC, (b) Meetings and Powers of Board of Managers, The Board of Managers shall establish meeting times, .dates and places and requisite notice requirements and adopt rules of procedures consistent with the terms of this Agreement. Any action required to be taken at a meeting of the Board of Managers or any action that may be taken at a meeting of the Board of Managers, may be taken at a meeting held by means of conference telephone or other communications equipment by means of which all persons participating.inthe meeting can hear eaeh other. Participation in such a meeting shall constitute presence in person at such meeting, Notwithstanding anything to the contrary in. this Section 9, the Board of Managers may take without a meeting any action•that may be taken by the Board of Managers under this Agreement if such action is approved by the unanimous written consent of the Managers. Except as otherwise provided in this Agreement, all powers to control and manage the business and affairs of the LLC shall be exclusively vested in the.Board of Managers and the Board of Managers may exercise all powers of the LLC and do all such lawful acts as are not by statute, the Certificate of Formation Or this Agreement directed or required to be exercised, or done by the Undersigned Meniber and in so doing shall have the right and authority to take all actions which the Board of Managers deems necessary, useful or appropriate for the management and conduct of the business of the LLC; provided, however, that the Undersigned Member may amend this Agreement at any time and thereby broaden or limit the Board of Manager's power and' authority. (c) Officers. The LLC may have officers who are appointed by the Board of Managers. The officers 'of the LLC may consist of a President and one or more Vice Presidents, The. initial officer of the LLC shall be: Kazuo Otsuka, President. The powers and duties of each - --officer shall. be -as -follows:. -.. .. ..• NYDOCS02/741529.5 2 (1) The President, The President shall have, subject to the supervision, direction and control of the Board' of Managers, the general powers and duties of supervision, direction and management of the affairs and business of the LLC usually vested in the president of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the LLC, (2) The Vice Presidents, Each•Vice President, if any, shall have such powers and perform such duties as may from time to time be assigned to him or her by the Board of Managers or the President, Each of the officers of the LLC shall be an "authorized person" within the meaning.of the Act for purposes of executing the LLC's Certificate of Formation. .(d) Rights and Powers of the Uiidersianed Member, The Undersigned Member .._ shall not have any right or power to take part in the management or control of the LLC or its business and affairs or to act for or bind the LLC in any way, Notwithstanding the foregoing, The Undersigned Member has all the rights. and powers specifically set forth in this Agreement and, to the extent not inconsistent with this Agreement, in the Act. The Undersigned Member has no voting rights except with respect to those matters specifically set forth in this Agreement and, to the extent not inconsistent herewith, as required in. the Act. Notwithstanding any .other provision of this Agreement, no action may be taken by the LLC (whether by the Board of Managers, or otherwise) in connection with any of the following matters without the written consent of the Undersigned Member; (1) the dissolution or liquidation, in whole or in part, of the LLC, or the institution of proceedings to have the LLC adjudicated bankrupt or insolvent; (2) the filing of a petition seeking or consenting to reorganization or relief under any applicable federal or state bankruptcy law; (3) consentingto the appointment of a receiver, liquidator, assignee, trustee, sequestrattor (or other sire, lax official) of the LLC or a substantial part of its property; (4) the merger of the LLC with any other entity; (S) the sale of all or substantially all of the LLC's assets; or • (6) the amendment of this Agreement. 10. Waiver of•Fiduciary Duties, This Agreement is not intended to, and does not, create or impose any fiduciary duty on the Undersigned Member, the Managers, the officers or any of their respective affiliates. Further, the Undersigned Member and each Manager named herein hereby waives any and all fiduciary duties that, absent such waiver, may be implied by • law, and in_doing SQ, recognizes,_ackr owledges and. agrees that its duties -and. obligations to the" LLC are only as ekpressly set forth in this Agreement. NYDOCS02/741529.6 3 • 11, Indemniflcatibn.by the Company, (a,) The LLC shall indemnify, defend and hold harmless any Member, Manager, officer or other person (and any of their respective officers, directors, managers, employees and agents), who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in.the right of the LLC) by reason of the fact that he, she or it is or was a Member, Manager, officer, director, employee or agent of the LLC, or is or was serving at the request of the LLC as. a director, officer, manager, employee or a.gent•of another corporation, partnership, joint venture, trust or other enterprise, from and against' expenses (including attorneys' fees and expenses), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such claim, action, suit or proceeding if such person acted hi good faith and in a manner such. person reasonably believed to be in, or not opposed to, the best interests of the LLC; and, With respect to any criminal sanction or proceeding, had no reasonable cause to believe that his, her or its conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon aplea of nolo contendere or its equivalent, shall not, of itself, •.create -a presumption that. the person did not act in. good faith and in a manner- which he, she or it - •reasanably believed to be in, or not opposed to, the best interests of the LLC, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his, her or its conduct was unlawful, (b) Expenses incurred in defending a civil or criminal action, suit or proceeding shall be paid by the LLC in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on. behalf of any Member, Manager, officer, director, employee or agent of the LLC, such amount to be repaid if it shall be ultimately determined by a court of competent jurisdiction from which no -further appeal may be taken or the time for appeal has lapsed that such person is not entitled to be indemnified by the LLC pursuant to the terms .and conditions of this Section 11; • (o) The LLC shall maintain insurance on behalf of any person who is or was a Member, Manager, officer, director, employee or agent of the LLC, or is or was serving at the request of the LLC as an officer, director, manager, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against and incurred by such person in any such capacity, or arising out of such person's status as such, whether or not the LLC would have the power to indemnify such person against such liability under this Section 11. (d) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 11 shall continue as to a person who has ceased to be a Member, Manager, officer, director, employee or agent of the LLC and shall inure to the'ben_efit of the heirs, executors, administrators and other legal successors of such person. (e) The indemnification provided by this Section 11 shall not be deemed exclusive of any other rights to indemnification to which those seeking indemnification may be entitled under any agreement, determination of Members or otherwise, . .._ . -(fl. Any.. indemnification hereunder shall -be satisfied only -out of the assets. of the" LLC (including insurance and any agreements pursuant to which the LLC and indemnified NYDOCS02/141529.6 4 persons are entitled to indemnification), and the Members' shall not, in such capacity, be subject to personal liability by reason of these indemnification provisions. (g) ND person shall be denied indemnification in whole or in part underthis Section 11 because such person had an interest in the transaction withrespect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement, 12. Compensation, The Undersigned'Member shall not receive compensation for services rendered to the LLC. 13, Assignments, The Undersigned Member may assign all or any part of its limited liability company interest at any time, and, unless the Undersigned Member otherwise provides, any transferee shall become a substituted Member automatically. In the event there is more than one Member, any Member may assign all or any part of its limited liability company interest: only with the consent of all other Me fibers, and any such transferee may only become a substituted Member with the consent of all other Members,. 14. Additional Membership,. Additional Persons (as defined in the Act)'may be admitted as Members of the LLC, without the sale, assignment, transfer or exchange by the Undersigned Member of all or any part of its limited liability company interest, upon the terms and conditions as the Undersigned Member may provide, from time to time. 15. Dissolution. The LLC shall dissolve, and its affairs shall be wound up, upon the earliest to occur of (a) the decision of the Undersigned Member, (b) if there is more than one Member, the unanimous written consent of all the Members, or (c) an event of dissolution of the LLC under the Act. 16. Distributions upon Dissolution. Upon the occurrence of an event set forth in Section 15 hereof, the Undersigned Member (or, if there be more than. one Member, the Members) shall be entitled to receive, after paying or making reasonable provision for all of the LLC's creditors to the extent required by Section 18-804(a)(1) of the Act, the remaining funds of the LLC (pro rata, if there is more than one Member), 17. Withdrawal. The Undersigned Member may withdraw from the LLC at any time, In the eyent there is more than one Member, any such Member (including the Undersigned Member) may withdraw from the LLC only upon the consent of all other Members, Upon any such permitted withdrawal, the withdrawing Member shall receive such amounts as determined by the Members, 18, Limited Liability, Neither the Undersigned Member nor .any other Member, if any, shall have any liability for the obligations of the LLC except to the extent provided in the Act, if any, 19, Amendment. This Agreement may be amended only in a writing signed by the Undersigned Member' (or if there be more than on.lYlernber, by ail' of the. Miemb.ers).,. . ' NYDOCS02/741529.6 5 20. Governing Law, THIS AGREEMENT SHALL BE GOVERNED BY AND COVTRUEI7 UNDER THE LAWS OF THE STATE OF DELAWARE, EXCLUDING ANY CONFLICTS OF LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GONERNANCB OR CONSTRUCTION OF THIS AGREEMENT TO•THE LAW OF ANOTHER JURISDICTION, 21. Consent to Jurisdiction, The Undersigned Member and any Member admitted as such in accordance with the terms of this Agreement hereby consent to (a) the non-exclusive jurisdiction of the courts of the State of Delaware or any federal district court sitting in. Wilmington, Delaware; and (b) service of process by mail in accordance with Section 23 of this Agreement. 22. Severability, Except as otherwise provided in the succeeding sentence, every term and provision of this Agreement is intended to be severable, and if any term or provision of this Agreement is illegal or invalid for any reason whatsoever, such illegality or invalidity shall_ not affect the legality or validity of the remainder of this Agreement. The preceding sentence shall be of no force or effect if the consequence of enforcing the remainder of this Agreement without such illegal or invalid term or provision would be to cause any party to lose the benefit of its economic bargain, 23. Notices. Any notice, payment, demand or communication required or permitted to be given by any provision of this Agreement shall be in. writing or by facsimile and shall be deemed to have been delivered, given and received for all purposes (a) if delivered personally to the person or to an officer of the person to whom the same is directed, or (b) When the same is actually received, if sent either by a nationally recognized courier or delivery service or registered or certified mail, postage and charges prepaid, or by facsimile, if such facsimile is followed by a hard copy of the facsimiled communication sent by a nationally recognized courier or delivery service, registered or certified mail, postage and charges prepaid, addressed to the recipient party at the address set forth for such party above. NYDOCS02/741529.6 6 IN WITNESS WHEREOF, the undersigned has duly exee_u_ted.,tkits Agreement of' Limited Liability Company as of the 7 .day of NoNeinbcar, 2005, . SEYEN-ELI~1Yl;N JAPAN CO., LTD, By; Name; Toshi Title; President and COO SE) FinsnLLC A r mcnt The First State PAGE 1 2, HARRIET SMITH *WINDSOR, SECRETARY OF STATE OF' THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY Of THE CERTIFICATE OF FORMATION OF 'TSEJ7' FINANCE ,LLC", FILED IN THIS OFFICE ON THE SEVENTH DAY OF NOVEMBER, A. D. 2005 , AT 11:13 O' CLOCK A.M, 4055428 8100 050906463" Harriet Smith Windsor, Secretary of State AUTHENTICATION: 4278910 DATE: 11 XO7-OS CERTIFICATE OF FO•R1VIATION by SEJ FINANCE LLC This Certificate of Formation of SEJ Fbianc'e LLC (the "LI,C"), dated as of November- 7, 2005, is being dilly executed and_f1cdby Shiro Ozeki, as an authorized person, to form a limited liability company under the Delaware Limited Liability Company Act (6 Del, C. § 18-101 et seq,), LLC, State of Delaware Secretary of State Dd.v sio.o of Corporations rel.ivered 11:24 - (11/07/2008 . r 050906 3 4055 11:13 Alf 42a 2aSI, FIRST, The name of the limited liability company formed hereby is SEJ Finance • SECOND. The address of the registered office of the LLC in. the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, W'tlmington,New Castle County, Delaware 19808. • T HJRD.. The name and address of the registered agent fit service of process of - __ the LLC in the state of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808, IN' WITNESS HEREOF, the undersigned has executed'and. filed this Certificate of Formation as of the date first written above. By: 1st Shiro Ozeld Shiro Ozekik' LIMITED LIABILITY COMPANY AGREEMENT Off' SEJ FINANCE LLC • The undersigned 'member (the "Undersigned Member") hereby forms a limited liability company pursuant to and in accordance with the Delaware Limited Liability Company Act, 6 Del. C..§ 18-101, et seg, (the "Act"), and hereby declares the following to be the Limited Liability Company Agreement (the "Agreement") of such limited liability company: 1, Name, The name of the limited liability company formed hereby is SEJ • Finance LLC (the "LLC"): 2. Purpose and Powers. The LLC is formed for the object and purpose of, and the nature of the business to be conducted and promoted by the LLC is, engaging in any.lawful ..act or activityforch limited liability.companies may be formed under the Act and engaging = inany and all activities necessary or incidental to the foregoing. 3. Registered Office; The registered office of the.LLC in the State of Delaware is located "at Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. 4, . Registered Agent. The name and address of the registered agent of the LLC for service of process on the LLC in. the State of Delaware is Corporation Service Company, 2711 Centerville. Road, Suite 400, Wilmington, New Castle County, Delaware 19808, 5, Admission.. Simultaneously with the execution and delivery of this Agreement and the filing of the Certificate of Formation with the Office of the Secretary of State of the State of Delaware, the Undersigned Member is admitted as•the sole Member of the LLC, The name and address of the Undersigned Member are as follows: Seven -Eleven Japan Co., Ltd. 8-8, Nibancho, Chiyoda-ku, Tokyo 102-8455, Japan 6, Capital Contributions. The Undersigned Member agrees to make the following capital contribution to the LLC (its "Capital Contribution"): 40 shares of common stock of IYG Holding Company, a Delaware corporation ("IYGH"),.representing 40% of the issued and outstanding shares of common stock of IYGI-1, The Undersigned Member is not required to make any contribution of property or money to the LLC in excess of its Capital Contribution, 7, Tax Treatment, The Undersigned Member intends the LLC to be treated as an entity taxable as a corporation for U.S. federal, state and local income tax purposes as of the date. hereof. The Undersigned Member shall, and shall cause LLC, which is hereby authorized, to file within 75 days of the date hereof, all necessary elections required for the LLC to be treated as an _entitytaxableas- acorporation for such purposes 'as-ofthe date hereof; irieluding,'Withost _ limitation, Internal Revenue Service Form 8832 (or any successor Form), Z•I D 502/741535,6 8, Distributions, The Board of Managers (as defined below) may cause the LLC ₹o distribute any cash held by it which is neither reasonably necessary for the operation of the LLC-nor in violation of Sections 18-607 or 18-804 of the Act to the Undersigned Member (or in the event additional Members are admitted to the LLC, the Members) at any time. 9, Management, (a) Board of Managers, The management of the LLC shall be vested in a Board of Managers (the `Board of Managers) elected by the Undersigned Member. The total number of members on the Board of Managers (the "Managers") shall be one unless otherwise fixed at a different number by an amendment hereto or a resohition signed by the Undersigned Member. The Undersigned Member hereby, elects.as the initial Manager of the LLC Shiro Ozeki to serge until his successor is elected and qualified. A Manager shall remain in office until removed by a written instrument signed by the Undersigned Member or until such Manager resigns in a written instmnent delivered to the Undersigned:Member or such Manager dies or is linable to -serve.-- In- . . the event of any, sucfi vabancy, the Undersigned Member may fill the vacancy. Each Manager shall have. one (1) vote. Except as otherwise provided in this Agreement, the Board of Managers shall act by the affmnative vote of the sole Manager or, if there is more than one Manager, a majority of the total number of Managers, A Manager shall not be liable under a judgment, decree or order of court, or in any other manner, for a debt, obligation.orliability of the LLC. (b) Meetings and powers of Board of Managers, The Board of Managers shall • establish.meeting times, dates and places and requisite notice requirements and adopt rules or procedures consistent with the terms of this Agreement, Any action required to be taken at a meeting of the Board of Managers or any action that may be taken at a meeting of the Board of Managers, may, be taken at a meeting held by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, Participation in such a meeting shall constitute presence in person at such meeting. Notwithstanding anything to the contrary in this Section 9, the Board of Managers may take without a meeting any action that may be taken by the Board of Managers under this Agreement if such action is approved by the unanimous written.consent of the Managers. Except as otherwise provided in this Agreement, all powers to control and manage the -business and affairs of the LLC shall be exclusively vested in the Board of Managers and the Board of Managers may exercise all powers of the LLC and do all such lawful acts as are not by statute, the Cet tificate of Formation or this Agreement directed or required to be exercised or done by the Undersigned Member and in so doing shall have the right and authority to take all actions which the Board of Managers. deems necessary, useful or appropriate for the management and conduct of the business of the LLC; provided, however, that the Undersigned Member may amend this Agreement at any time and thereby broaden or limit the Board of Manager's power and authority. (c) Officers. TheLLC may have officers who are appointed by the Board. of Managers. The officers of the LLC may consist of aPresident end one or more Vice Presidents, The initial officer of the LLC shall be; Shiro Ozeki, President. The powers and- duties of each officer shall be as follows; PTYDOCS02/741535.6 2 (1) The President, The President shall have, subject to the supervision, direction and control of the Board of Managers, the general powers and duties of supervision, direction and management of the affairs and business of the LLC usually vested in the president of a corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relation chips within the LLC. (2) The Vice Presidents, Each Vice President, if any, shall have. such powers and perform such duties as -may from time to time be assigned to him or her by the Board of Managers or the President, Each of the officers of the LLC shall be an "authorized person" within the meaning of the Act for purposes of executing the LLC's Certificate of Formation. .jd) Rights and Powers of the Undersigned Member, The Undersigned Member --- shall not have any right or power to take part in the management or control of the LLC or its business and affairs or to act for or bind the LLC in any way. Notwithstanding the foregoing, the Undersigned Member has all the rights and powers specifically set forth in this Agreement and, to the. extent not inconsistent with this Agreement, in the Act, The Undersigned Member has no voting rights except with respect to those matters specifically set forth in this Agreement and, to the extent not inconsistent herewith, as required in the Act. Notwithstanding any other provision of this' Agreement, no action may be taken by the LLC (whether by the Board of Managers, op otherwise) in connection with any of the following matters without the written consent of the Undersigned Member: - (1) the dissolution or liquidation, in whole or in part, of the LLC, or the institution of proceedings to have the LLC adjudicated bankrupt or insolvent; (2) the filing of a petition seeking or consenting to reorganization or relief under any applicable federal or state bankruptcy law; (3) consenting to the appointment of areceiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the LLC or a substantial part of its property; (4) the merger of the LLC with any other entity; (5) the sale of all or substantially all of the LLC's assets; or (6) • the amendment of this Agreement, 10. Waiver of Fiduciary Duties, This Agreement is not intended to, and does not, create or impose any fiduciary duty on the Undersigned Member, the Managers, the officers or any of their respective affiliates, Further,.the Undersigned Member and each Manager named herein hereby waives any and all fiduciary duties that, absent such waiver, may be implied by _ law,.and in doing so, recognizes, acknowledges and agrees that its.duties and obligations to the LLC are only as expressly set' forthintnis Agreement • NYDOCs02/741535,6 3 11, Indemnification by the Company, (a) The LLC shall indemnify, defend and hold harmless any Member, Manager, officer or other person (and any oftheir respective officers, directors, managers, employees .and agents), who was or is a party or is threatened to be made a party to. any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the LLC) by reason of the fact that he, she or it is or was a Member, Manager, officer, director, employee or agent of the LLC, or is or was serving at the request of the LLC as a director, officer, manager, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, from and against expenses (including attorneys' fees .and expenses), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in' connection with such claim, action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in, or not opposed to, the best interest of the LLC, and, with respect to any criminal sanction or proceeding, had no reasonable cause to believe that his, her or its conduct was unlawful. The termination of any action, suit or proceeding by judgment, order,. settlement, conviction, or upon .a plea of nolo contendere or its equivalent, shall not, of itself, create• a presumption that the person did not -actin -good faith and in a maniger vahichiie; she or it reasonably believed to be in., or not opposed to., the best interests of the LLC, arid, with respect to any criminal action or proceeding, had reasonable cause to believe that his, her or its conduct was unlawful, • (b) Expenses incurred in defending a civil or criminal action, suit or proceeding shall be paid by the LLC in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of any Member, Manager, officer, director, 'employee or agent of the LLC, such amount to be repaid if it shallbe ultimately determined by a court of competent jurisdiction from which no further appeal may be taken or the time for appeal has lapsed that such person is not entitled to be indemnified by the LLC pursuant to the terms and conditions of this Section 11, . (c) The LLC shall maintain insurance on behalf of any person who is or was a Member, Manager, officer, director, employee or agent of the LLC, or is or was serving at the request of the LLC as an officer, director, manager, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against and incurred by such person in any such capacity, or arising out of such person's status as such, whether or not the LLC would have the power to indemnify such person against such liability under this Section 11, • (d) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 11 shall continue as to a person who has ceased to be a Member, • Manager, officer, director, employee or agent of the LLC and shall inure to the benefit of the heirs, executors, administrators, and other legal successors of' such person. (e) The indemnification provided by this Section 11 shall not be deemed exclusive of any other rights to indemnification to which those seeking indeuuiif-ication may be entitled under any agreement, determination of Members or otherwise, ----- • - .Any. irldeaanuS cation hereunder shal-1 be satisfied only out. of the assets of the • " ' • - • • LLC (including insurance and any agreements pursuant to which the LLC and indemnified NYDOCs02/741535,6 4 persons are entitled to indemnification), and the Members shall not, in such capacity,•be subject to personal liability by reason of these indemnification provisions, (g) No person shall be denied indemnification in whole or in. part under this ,.Section 11 because suchperson had an interest in the transaction with respect to which the . indemnification applies if the transaction was otherwise permitted by the terms of this Agreement, 12. Compensation, The Undersigned Member shall not receive compensation for services rendered to the LLC, 13. Assignments, The Undersigned Member may assign all or any part of its limited liability company interest at any time, and, unless the Undersigned. Member otherwise provides, any transferee.shall become a substituted Member automatically. In the event there is more than one- Member, any Member may assign all or any part of its limited liability company interest only with the consent of-all.other Members; -and -alit' such"transferee may only becomme a substituted Member with the consent of all other Members, • 14. Additional Membership. Additional Persons (as defined in the Act) may be admitted as Members of the,LLC, without the sale, assignment, transfer or exchange by the Undersigned Member of all or any part of its limited liability cornpanyinterest; upon the terms and conditions as the Undersigned Member may provide, from time to time. 15. Dissolution, The LLC shall dissolve, and its affairs shall be wound up, upon the earliest to occur of (a). the decision of the Undersigned Member, (b) if there is more than one Member, the unanimous written consent of all the Members, or (c) an event of dissolution of the LLC under the Act. 16. Distributions upon Dissolution, Upon the occurrence of an event set forth in Section 15 hereof the Undersigned Member (or, if there be more than one Member, the Members) shall be entitled to receive, after paying or making reasonable provision for all of the LLC's creditors to the extent required by Section 18-804(a)(1) of the Act, the remaining funds of the LLC (pro rata, if there is more than one Member), 17, Withdrawal. The Undersigned Member may withdraw from the LLC at any time. In the event there is more than one Member, any such Member (including the Undersigned Member) may withdraw from the LLC only. upon the consent of all other Members, Upon any such permitted withdrawal, the 'Withdrawing Member shall receive such amounts as determined by the Members, 18, Limited Liability, Neither the Undersigned Member nor any other Member, if any, shall have any liability for the obligations of the LLC except to the extent provided in the Act, if any. 19, Amendment, This Agreement may be amended only in a writing signed by the Undersigned Member (or if there be more than one Member, by all of the Members). NYDOCS021741535,6 5 20. Governing Law, THIS AGREEMENT SHALL BE GOVERNED BY AND CONTRUED UNDER THE LAWS OF THE STATE OF DELAWARE; EXCLUDING ANY CONFLICTS OF LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR CONSTRUCTION OP THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION, 21. Consent to Jurisdiction, The Undersigned Member and. any Member admitted . as such in accordance with the terms of this Agreement hereby consent to (a) the non-exclusive jurisdiction of the courts of the State of Delaware or any federal district court sitting in Wilmington, Delaware; and (b) service of process by mail in accordance 'with Section 23 of this Agreement. 22. Severability. Except as otherwise provided in the succeeding sentence, every term and provision of this Agreement is intended to be severable, and if any term or provision of this Agreement is illegal or invalid for any reason whatsoeverLsuch illegality or invalidity.shalI - - not affect the legality or validity of the remainder of this Agreement, The preceding sentence shall be of no force or effect if the consequence of enforcing the remainder of this Agreement without such illegal or invalid term or provision would be to cause any party,to lose the benefit of its economic bargain. 23. Notices, Any notice, payment, demand or communication requited or permitted to be given by any provision of this Agreement shall be -in writing or by facsimile and shall be deemed to have beendelivered, given and receivedfor all purposes (a) if delivered personally to the person or to an officer of the person to whom the same is directed, or (b) when the same is actually received, if sent either by a nationally recognized courier or delivery service or registered or certified mail, postage and charges prepaid, or by facsimile, if such facsimile is followed by a hard copy of the facsimiled communication sent by a nationally recognized courier or delivery service, registered or certified mail; postage and charges prepaid, addressed to the recipient party at the address set forth for such party above, 14YDOCS02/741S35.6 6 IN WITNESS WHEREOF, the undersized has duly executed this Agreement of Limited Liability Company as of the 1 day of November, 2005. SEVEN -ELEVEN JAPAN CO., LTD. Name: Toshiro aguc� Title; President and COO sEJ Sorriv4 LLC F ct t .SECRETAR Y. OF STA TE CERTIFICATE OF AMENDMENT OF • 7 -ELEVEN, MC, FILE NO: 179090-00 The undersigned, as Secretary of State of Texas,. hereby certifies that the attached'Atticles of Amendment for the above named entity have been received in. this office and are foun:d to conform to law. ACCORDINGLY the undersigned, as Secretary of State, and by virtue of the authority vested in the Secretary by law, hereby issues this Certificate of Amendment, Dated: Effective: April 27, 2000 tl2ay 1, 2000 12:01 A.M. Elton Bother Secretary of State CS i=1L>`D `n the ° 7 a. of the ARTICL s O ' ANi N'DIN•fENT Socretary of Slate of TexAs TOTE SECOND RESTATED ARTICLES OFINC ORPOR&TIO?:i cy APR 2 7 2000 7•EL1VEN, Lti'C. Pursuant to the provisions of the Texas Business Corporation Act, 7 -Eleven, inc., a corporation organized tender the laws of the State of Texas, hereby amends its Second Restated Artialcs of Incorporation (the "rticles of lncorporaioit") and for drat purpose, submits the following statement: ARTICL1 ONT The name of the corporation is 7 -Eleven, Inc, ARTTCT.V, TWO Article Four (b) of the Articles of In.corporatioh is hereby deleted in its entir5ty -and rEpIaced with a new paragraph (b), as follows: " ARTICLE FOUR. (b). Upon the fillrlg of these Articles of Amendment to. the Articles of Incorporation with the Texas Secretary of State, each share of the Corporation's conunon stook, par value SO -0001 per share (the'!01d Common Stock"), issued and outstanding immediately prior to the filing hereof shall, without any action orr the pa; t of . the holder thereof, be converted and . reclassified into, and immediately represent one --faith of a validly issued, fully paid and non -- assessable share of Common Stock. No hold_' will be. entitled to receive a. fractional share of Common- Stock and any fraction of a. share of Comtraon Stock that would otherwise be •due a holder as a result of the preceding ser.tence shall automatically bi eliminated and; in lieu thereof, the holder thereof shall be en,itled to receive a cash adjustment in respect of such fraction of a share in. an amount based upon a vaige of the Common Stock equal to the, product of five multiplied by the closing r rice, as reported by The Nasdaq Stock Market, of a. share of the Old Common. Stock on the last trading day immediately preceding the effective date of this amei drnent. • Each.oertiheato which theretofore represented shares of Old Corm -non Stool, shall thereafter represent that number of shares of Cornmort -Stock determined in .tbe previous sentences; p. evaded, however, that each person holding of record a stock certificate or certificates whit i represented a share of Old Common Stock shall receive,upon surrender of such certificate. or certificates, a new certificate or certificates evidencing and representing the number of shares of Common Stock to which such person is cirri tl ed," •ARTZCL T U The amendment to the Articles of Ineorpojation was adopted by a vote of the sharehoidera of the corporation on April 26, 2000. ARTICLE Fong The number of shares of the corporation outstanding and entitled to vote on this arneAdment wa's 410,112,375 share& The designado-cl and number of ibexes of each class or series were as follows: CIsss or Series 1`10 ne or series entitled.to vote thereon as a class 1`fumber of Shares Outstanding and Entitled to Vote ARTICLE FIVE The nutnber of shares voted far such amendment was 340,331,661 and the number of shares Voted against such amendment was 6,843,358, The number of shares of each class or series entitled to vote as a class ors cries voted for or•against such amendment as follows: Class or Series Number of Shares Voted for Against hio ne ARTIcia SIX The effective date of this amendment shall be 12:01 a,m,, central daylight time, May 1, 2000, Dated the' .26th day of April, 2000•. „ (to be tffective 12:01 a.m., • central- daylight time, lvfa.y 1; 2000) By: Name a S3 851 7 -ELEVEN, I NC. • TOTAL P,a3 TOThL;,R3 Please include a typed • setfaddressed envelope MUST RETYPED FILING FEE $25.00 • MUST SUBMIT TW COPIESIV/1010 Mall to; Secretary of State Corporations Section 16p Broadway, Suite 200 Denver, co. 80202 (303) 894-2251 Fax (303) 894-2242' For office use only , 012 • 19991075686 ' ".u. $ 40.00 SECRETARY OF STATE APPLICATION FOR AMENDED AUTHORITY Pursuant to the provisions of the Colorado Business Corporation Act, the undersigned corporation hereby applies for an Amended Authority and states: FIRST: The name of the corporation is: 'PEE SOUTHLAND CORPORATION SECOND: If the corporate name was not available, the assumed name of the corporation is: THIRD: (Check if Applicable) The corporate name of the corporation has become available in Colorado and the corporation desiresto amend• its Authority to reflect the corporate name on the records of the Secretary of State. The corporation has amended the period of duration in its Articles of Incorporation to xo Change The corporation has changed its name to 1 -ELEVEN. INC. The name which it elects to use in Colorado is: (If its corporate name is not available for use in Colorado) The corporation has redomesticated from to FOURTH: This.applieation is accompanied by a Certificate of Fact, duly authenticated by the proper officer in the state or country of incorporation (or redomestication as the case may be) certifying the statem ent(s) made above.. (COL, - 1417 - 11/9/95) a15.14. MAY -18-1999 15:30 '1'$E SOUTHLAND CORPORATION Name of Corporation Signature 0--Q}.-AQ S - Cara S. Hilburn Title Assistant Secretary 214 '754 0921 Revised 7195 ' 98/. P , 02 MAY -18-1999 16:20 Li LuKr MRY-18-1999 15 30 SECRE TAR Y OF STATE IT IS IIEREBY CERTIFIED that 1 -ELEVEN, INC. File No. 179090-00 filed articles of incorporation on NOVEMBER 21, 1961 under its original name of 'lilt. SOIITBLAND CORPORATION OF TEXAS as set forth in that document; and that articles of amendment were filed on the dates indicated below changing the corporate name to the name shown beside the date: THE SOUTHLAND CORPORATION 7 -ELEVEN,' INC. . ' MARCH 18, 1963 FILE DATE: APRIL 2.9, 1999 EFFECTIVE DATE: APRIL 30, 1999 TT IS FURTHER CERTIFIED that the corporation is currently in existence under the last name shown above. IN TESTIMONY WHEREOF, I have hereunto signed• niy name officially and caused to be impressed hereon the Seal of State at my office in the City of Austin, on April 30, 1999: 214 754 0521 Elton Bomer Secretary of State 99% P'. 03 fato tr ex�zs SECRETARY OF STATE CERTIFICATE OF AMENDMENT OF 7 -ELEVEN, INC. FORMERLY TEE SOUTHLAND CORPORATION The undersigned, as Secretary of State of Texas, hereby certifies that the attached Articles of Amendment for the above named entity have been received in this office and are found to conform to law. ACCORDINGLY the undersigned, as Secretary of State, and by virtue of the authority vested in the Secretary by law, hereby issues this Certificate of Amendment. Dated: Effective: April 29, 1999 • April 30, 1999 Elton Borrce-r Secretary of State ARTICLES OF AMENDMENT TO THE SECOND RESTATED ARTICLES OF INCORPORATION OF THE SOUTHLAND CORPORATION ..... r,bb/66. FILED In the Secretary of •e of the 'Stateof Texas APR 2 91999 Corporations Section Pursuant to the provisions of the Texas Business Corporation Act, THE SOUTHLAND CORPORAO corporation organized under the laws of the State of Texas, hereby amends it; Second Restated A TIof corporation (the uArtioles of Incorporation") and for that purpose, submits the following statement;' ARTICLE ONE The name of the corporation Is The Southland Corporation. ARTICLE TWO Article One of the Articles of incorporation is hereby amended and the full text of Article One, mended,•is as follows: 'The name of the Corporation is'7-Eleven, Inc.° •ARTICLETHREE ' The amendment to the Articles of Incorporation. was adopted by a vote of the shareholders of the orporaflon on April 28, 1999. ARTICLE FOUR as The number of shares of the corporation outstanding at the time of such adoption was 09,961,23; and the number of .$hares entitled, to vote thereon was. 409,941,168. The designation and number of shares of each class or series entitled to vote thereon es a data r series were as follows: Class or Series Norte Nurnber of Shares Outstanding and Ensued to Vote ARTICLE FIVE The number of shares voted for such amendment was 34.690,410 and the number of shares oted against such'arnenciment Was 159.879. The number of shares of each class or .series entitled to vote as a class or series voted for or gainst such amendment as follows: • Class or Series None Number of Shams Voted - For Against ARTICLE SIX The effective date of this amendment shall be April 30,1999, )ated the. g_El.t_b, day of porn, 1999, (to be effective April 30,'1999) . _ . THE SOUTHLAND CORPrORA-I-RON By; Nam itii, Jr, - Senior Vice President fate of exaz SECRETARY OF STATE CERTIFICATE OF RESTATED ARTICLES OF INCORPORATION OF TH11 SOUTHLAND' CORP ORATION The undersigned, as Secretary .of State of Texas, hereby certifies that Restated Articles of Incorporation of the above corporation, duly executed pursuant to the provisions of the Texas Business Corporation Act, have been, received iu this Office and are found to conform. to law. ACCORDINGLY the undersigned, as such Secretary of State; and by virtue of the authority vested in the Secretary bylaw, hereby issues this certificate of Restated Articles of Incorporation and 'attaches hereto a copy of the Restated Articles of Incorporation. Dated MARCH 05 ,19 9 . D Secretary of State yd Tram £URcstattd Artde (profit) Certira,zae 08(90 SEC ND RESTATED ARTICLES0FINC0RPORATXON (with amendment) se lr� the fiii�D of °ref the o thee, o 'MAR ts�ats �Teka THE SOUTHLAND CORPORATION Cif © 5 1991 Poratlons Sea ' 1. The Southland Corporation (the "Corporation") t�ah pursuant to the provisions of Article 4.14 of the Texas • Business Corporation Act (the "Act" ), hereby, adopts• these Second Restated Articles of Incorporation which accurately copy the Restated Articles of Incorporation of the .Corporation and all amendments, thereto that are in effect to date and as further amended by these Second Restated Articles of Incorporation as hereinafter set forth and which contain no other change in any provision thereof. 2. The Restated Articles of Incorporation of the Corporation are hereby amended by the Second Restated Articles of Incorporation as follows (a). Current paragraph (a) of Article four is amended to increase from 300,000,0.00 to 1, 000, 000,000 the aggregate number of shares of Common. Stock, which the Corporation is authorized to issue, and to change the par value of such shares of common stock from $(01 par Value er- s_hare. to•.$ -,0-0-0.I Dar value —per share;- 2 (b) Current Article Four is amended to delete current paragraph (b) of Article Four hi its_ entirety and to replace it with a new paragraph . (b) which provides for. the combination of each ten, previously issued shares of Common Stock, *,01 par value 'per share, tato one share of Common Stock, *.0001 par value per share (c) Current Article Four is. amended to delete current section (a) of Article Four relating to Jui o•r Preferred Stock, all of the shares of - which were cancelled pursuant to the Corporation's plan of reorganization under Chapter 11 of the United States Bankruptcy Code (the "Plan"). (d) Current Article Four is amended to add a new Section (0) whieh'changes the par value of the Preferred Stock previously provided for in the deleted paragraph (b) from no par value to : 01 par value per share and authorizes actions that may be taken by the Board of Directors of the. Corporation (the "Board") relating to such ._s_h.ares..: 3 (e) A new Article Five is added to prohibit the issuance by the Corporation of non —voting equity securities. (f) Current Article Five is renumbered as Article Six.. (g) Current Article Six is amended to alter.the the wording so as to conform to the provision's df the Act and is renumbered as Article; Seven. (h) Current Article Seven is amended to. authorize only the Board, the Chairman of the .Board, the president and the holders of not less than 50% of the voting stock to call a. special shareholders meeting and is renumbered as ,Article Eight. (i) Current Article Eight is deleted in its entirety, (j) Current Article Mine is amended to delete the names and addresses of directors currently listed .and. insert the number; names' and - addresses for the directors of the Corporation 4 elected by the shareholders at meeting of shareholders of the on. February 25, 1991, the 1991 *annual Corporation held (k) Current Article Eleven is amended to correct the address of the registered office the corporation. of (1) Current Article Thirteen is deleted 'in its entirety. (m) Current Article Fourteen is• ameiided to alter the warding so as to conform to provisions of the Act and is renumbered as Article Thirteen. (n) Current Article Fifteen is renumbered as Article Fourteen.. (o) A new Article Fifteen is added to allow action by written consent of the shareholders with less than unanimous consent pursuant to. Article 9.10 of the Act, 3. Each such amendment made by these Second '-'Restated• Ar-t'icte•s• e rfcorporation has been effected in conformity with the provisions.of of Article 4 ,14.8 ' of the Act, 5 pursuant to the Order Confirming Southland's Plan of Reorganization (the "Order") entered by the United States . Bankruptcy Court for the Northern District of Texas, Dallas 'Division (the "Court") on February 21, 1991 .in Case No. 390-37119—HCA-11, file name In re. The Southland Corporation, The Court had jurisdiction over the proceedings under Title 28 of the United States Code, Section 1334, • 4. The amendments effected -by these Second Restated Articles of Incorporation effect a reduction in the amount o f stated capital of the Corporation by reflecting the cancellation of the previously outstanding shares of Junior Preferred Stock pursuant to the Plan and combining each ten shares of issued and outstanding Common Stock, par value $,01 per share, into one share of Common Stock, par value $,0001 per share, The amount of stated capital as _changed by such amendments is $2048,08. 5. The Restated Articles of Incorporation of the Corporation and all amendments and supplements thereto are hereby ,superseded by, the following Second Restated Articles of; Incorporation which accurately copy the entire text thereof as further amended as above set forth: 6 ' ARTICLE ONE The name of this Corporation is THE SOUTHLAND ..CORPORATION. ARTICLE TWO .The period of duration of this Corporation shall be perpetual. ARTICLE THREE The purpose for which the Corporation is organized is to engage .in the transaction of any and all lawful business for which corporations may be incorporated under the Texas Business ' Corporation.Act (the "Act"). ART I CLE FOUR (a) The aggregate number of shares of Common Stock .which this Corporation shall have authority to issue is 1,000,000,000 shares of Common Stock, par value one —hundredth of :.a cent ($,OOO1) pet -share; (b) Each ten (10)' shares of previously authorized Comrzton Stock, par value $.01 per share, of the Corporation issued and outstanding immediately prior ' to the time these second Restated Articles. of Incorporation become effective (the "Original Common Stock") shall automatically and without further action on the part of the holders thereof be .combined into one (1) validly issued, fully paid and nonassessable share of common stock, par value $.OO01 Corporation (the "New Common Stock UoR por share, der r bye holder of the certificates representingshares.rofnOri final Common Stock, the Corporation shall issue to such holder a certificate or certificates representing the number of shares of New -Common Stock into whioh the Original Common Stock represented by the certificate so surrendered shall have been combined as aforesaid. The surrender of certificates representing shares of Original Common Stock shall not be necessary to effect the combination contemplated hereby. The Corporation shall not issue fractional shares of New Common 7, Stock with respect to the foregoing described combination, In lieu thereof, the Corporation shall issue a whole share of New Common Stock for any fractional share to which such . holder' otherwise would be entitled; (o) The aggregate'number of shares of Preferred Stock which this corporation shall have authority to issue is .five million '(5,000,0.00) shares, par value one cent ($•,ol) per 'share . Shares of the Preferred Stock may be issued from time to time in one or more series, the shares of each series to. have such designations, preferences,' limitations, and relative rights, including voting rights, as shall be' stated aftd.expressed herein or in a. resolution or resolutions providing for 'the issue of such series adopted by the. Board of Directors of the Corporation (the "Board"), Eadh, such series of Preferred Stock sha.l7, be designated. so asto distinguish the shares thereof from the shares of all other series and classes, The. Board is hereby, expressly authorized, subject to limitations provided contractual restrictions binding'on or its property at the time of the issuance of such Preferred Stock, to establish and designate series .of- the Preferred Stook, to fix the. number of shares constitutin each series, designations. and the g to fix. the rights, including voting f rights, ofIthe,ashares ofdeach a series and -the variations of the relative rights.and such. preferences as between series, and to increase and to • decrease the number of shares oonstituting each series, provided that the Board may not decrease the number ofshares within a series to less than the number•of shares within such series that are then issued, The relative powers, rights, preferences, and' limitations may vary between and among series of Preferred Stock in any and all. respects, The authority, of the Board with respect to each series shall further include, but shall not be limited to, the authority to determine the following; (1) The rate or rates and the times at which dividends on the shares of such series shall be paid, the periods in respect of which dividends arepayable, the conditions upon such dividends, the relationship and preferences, if any, of such dividends td dividends payable on any other class or series of shares, whether or not such dividends shall be cumulative, partially cumulative, or noncumulative, if such dividendsshall be cumulative or partially cumulative, the date or dates from and after which, and the amounts in 'which, they shall' accumulate, whether such dividends shall be share dividends caste o=. _other- dividends ar an thereof, and if such dividends shall includeo share 9 or the conversion price; (7) Whether or not the shares of such series, at the option of either the Corporation, or' the holder or upon the happening of'a specified .event, shall .be exchangeable for securities, indebtedness, or property of ' the Corporation and, if such shares shall be so exchangeable, the terms and conditions of exchange, including, but not limited to, any provision for the adjustment of the exchange rate, or the exchange ptice; and (8) Any other preferences; limitations, and relative: rights as shall not be inconsistent with the provisions of this Article Four, Article Five hereof or the limitations ptovided by law or by contractual• restrictions binding' on the Corporation or its property, .ARTICLE FIVE • The Corporation shall not issue nonvoting .equity securities; provided, however, that any series. of Preferred Stock designated pursuant to paragraph (e) of Article Four as having the right; voting separately as a clas, to elect 'any directors of the Corporation if and when dividends payable on such shares of Preferred Stock shall have been in arrears and, unpaid for a period of time to be specified (such directors • to be in addition to the number of directors constituting the Board immediately prior to the accrual of such right) shall not be'nonvoting equity securities for purposes of this Article Five: ARTICLE SIX Cumulative voting in the election of directors shall be prohibited_ ARTICLE SEVEN No holder of any shares of capital stock of the Corporation shall be entitled, as a matter of right, to subscribe for or purchase any additional, unissued or treasury shares of capital stock of the Corporation, or securities convertible into or carrying a right to subscribe - for or acquire such shares, ' 10 ARTICL8 EIGHT A special meeting of the shareholders of the Corporation may onlybe called by the Board, the Chairman of the .Board or the President. of the Corporation or the holders • of not less than fifty (50%) perdent of the shares of capital stock of the Corporation entitled to vote. at the proposed meeting, ARTICLE NINE' 4 The names' and addresses of the directors of this Corporation now serving and who shall hold.office office until their respective successors shall be elected and qualified and who shall have the_authority to direct the affairs bf the Corporation are: Name Yoshitami Arai Timothy N. Ashida, ,Jay W, Chai Masatoshi Ito Mas aaki Kamat a Clark' J , Matthews , II _.._.....Robert J -McG„ire Address Systems International Ind. Tameike Tokyo Building 1-1-14 Akasaka . Minato—ku, Tokyo 107 Japan A.K.E. Associates.,. Inc P.O, Box 438& Glendale, CA 9102-4388 C. Itoh & Co. (America) Inc, 335 Madison Avenue New York, NY 10 017 Ito-Yokado Co, , Ltd, 1-4, Shibakoen ' 4-chome Minato-ku, Tokyo 105 Japan Seven -Eleven Japan Co, , Ltd, 1-4, Shibakoen '4-chome Minato-ku, Tokyo 105 Japan The Southland Corporation 2711 Ndrth Haskell Avenue Dallas, TX 75204-2906 Kroll associates 900 Third. Avenue New York, NY 10-022 11 Kaiuo Otsuka Asher O, 'Pacholder Walter J. Salmon Nobutake Sato Tashifumi Suzuki Jere W. Thompson 'Joe C, Thompson John P. Thompson Ito-Yokado Co., Ltd. 1-4, Shibakoen 4-chome Minato-ku, Tokyo 105 Japan Paaholder Associates, Inc. 'The Spectrum Ofice ice Tower 1126 Chester Road, Suite 700 Cincinnati, OH 45256 • Harvard University Graduate School of Business • Admi;ni str at i on Soldiers Field Road Boston, MA 02163 Ito-Yok•ado Co.; Ltd. 1-4; Shibakoen 4-chome Minato=ku, Tokyo 105 Japan Ito-Yokado Co., Ltd. 1-:4, Shibakoen 4-chome Minato-ku, Tokyo 1Q5. Japan 100 Crescent Court Suite 1000 . Dallas, TX 75201 10d Crescent 'Court Suite 1000 Dallas, TX 75201 100 Crescent Court Suite .1000 Dallas, TX 75201 Each director designated -by a shareholder which owns, directly or indirectly, a majority of the shares of New Common Stack shall fully comply with any fiduciary or legal duties under applicable. law, ARTICLE TEN This Corporation has heretofore complied with the requirements of law as to .initial minimum capital. without ,�hieh it• could not- COWLnen e business under the Act, 1.2 ARTICLE ELEVEN The registered office of this Corporation is 350 North St, Paul, Suite 2900, Dallas, of its registered agent at such address ais7CT.Corporationname 'System, ARTICLE TWELVE Th'e Corporation shall. indemtit is or. was a director or officer of thisYCorporration oranperson o(ii) while. a director or officer of. this Corporation is or.was serving at the reguest of the. Corporation as a director, officer, partner, venturer proprietor, agent or similar functionary ofanother foreign ormdomestic corporation, partnership, joint venture, sole proprietorship' trust, employee benefit plan, or other enterprise, to the fullest extent that a corporation may or is re.. indemnification to a director under the Act. The herto Corporation. t may indemnify any person to such further Extent haspermitted •• by applicable law, such person to be so indemnified in accordance with the -provisions hereof in.respect of such person's own negligence; ARTICLE THIRTEEN To the fullest extent permitted by applicable no .director of this Corporation shall be liabletothislaw' Corporation or its shareholders for monetary damages for an: act or omission in such director's capacity as this Corporation; rovided, however, that his Article tor of Thirteen does not eliminate or limit the liability of a director of this Corporation to the extent the director is found liable fog: 1, a breach of suchdirector's duty of loyalty to this Corporation or its shareholders; 2, an constitutes Corporation intentional law; act or omission not in good faith that a breach of duty of the director to this or an act or omission that involves misconduct or. a knowing violation of the 3. a transaction from which such director :. xec.eived. an improper . benefit w*nether or not -the 13 benefit resulted from an action taken within the scope of the director's office; or 4. an act or omission for which the liability of such director is expressly provided for by- an applicable statute, shall not eliminate foregoing provisions sthe lof this Article Thirteen any act o�: omission occurring ability of a director for repeal or amendment of this g prior to August 31, 1,9.8.7 � An this..Corporation shall be Article by the shareholders o -f Y adverel affect shall any prospective only, and shall not limitation on the personal liability of -a-director of this Corporation existing repeal or amendment. Ina at circumstances the time. of such which a director .of this Corporation isto enotprally in as set.._farth. in. the .foregoing.proviSions of this Article Thirteen, - Thirteen, a director shall not be liable to the fullest extent permitted by any amendment to the Texas Miscellaneous Corporation Laws Act or the Act hereafter enacted that further limits the liability of a director. ARTICLE FOURTEEN Any action. of the Corporation which, under the provisions of the Act or any other applicable. law, is required to be authorized or approved by specified, i fraction which is n excess of holders one—halfor . any any specified percentage which is in excess of the outstanding shares fifty percent of or series the Corporation shallr notwithst annclass dingany raw, thereof) effectivelyof effectively and properly authorized or a p be if authorized or approved by the vote of the holders ofmoredthan fifty rzed percent of the outstanding shares entitled to vote thereon (or, if the holders of any class or series of the Corporation's shares shall be entitled by r an other applicable law to vote thereon separately, asoa class, by the vote of the holders of more than fifty percent of the outstanding shares of each such class or series). Without limiting the generality of the foregoing, the • this Article Fourteen shall be a' provisions of shareholder authorization or approval to any amendment to these Second Restated Articles -of 'Incorporatio) n; a(b) an' plan of merger, consolidation, or reorganization involving the Corporation; (a) any sale, lease, exchange, or other disposition off all, or substantially all,' the propertyandassets of the Corporation;.and and . (d) any voluntary dissolution 14 of the corporation. Except as otherwise Article Fourteen or as otherwise. re Provided• in this. applicable law, the vote of the holderseofba d the. Act or other Corporation's shares entitled to vote at any majority of the shareholders at which a cram is meeting of such meeting. Nothing contained' inrthistArticleshall -Fourteentis f intended to require shareholder authorization or approval of any action of the Corporation whatsoever is specifically required by the other unless suchapprovalapproval Second Restated Articles of Incorporation`,1thenBylawshofethe Corporation, or by the Act or other applicable law. ARTICLE FIFTEEN Any action which may be taken., or which is required by law or these Second Restated Articles- of Incorporation -or _ _. • tho Bylaws af-the'Corporation to be taken, at any annual or special' meeting of the shareholders meeting, without prior notice mac' be t ote,wi if a a consent• or consents in writing, and without a vote, a taken., shall: be signed by the holder �or holders ng forth hoofashar ssa having not less. than the minimum number of votes that- would : be necessary to take such action at meet at holders of all shares entitled tovote onthe action cwere h e present and voted. In determining the minimum number of votes that would be necessary to take. such action, the provisions'of Article Fourteen of these Second Restated. Articles of Incorporation shall control in those circumstances to which Article Fourteen applies. . IN WITNESS WHEREOF, the undersigned, having been designated by the Court to execute these Second Restated Articles: of Incorporation, has executed same on, behalf of the. Corporation as of the date set forth below. DATED THIS 5TH DAY OF MARCH, 1991. THE SOUTHLAND C0RPORATI Ws Thompson ident WCHI POIIATED E/GER TIE L OS OFTHESTRIE0f7635. 7ELEvEj! 14' THIS CERTIFICATE Is TRAHSFER4BLE IN CHICAGO, ILLINOIS OR NEV./VOW, NEW vow • %/.�-7/ FULLY PAID AND �NON ASSESSABLE SHARES OFTHE COMMON NSTOCK // OF / :41;e9b J7lG:, Aso"( Mali; P0`L 1Ya 494 la; Tt 714v rffeAiA 46 As /la 64x. /L erns oli c0WIN N[ &T0M( $.400t PAR VALUE CUsip 19],7626 20 9 SEEREVEn5SGOR gamu111EFpimovs Pafcd: BY Priesoeur lo CHERPJ; VE0FFl0IEA 00UNTEASI0NED AND 9EGISTEFEOI COI:iPUTERSHAREIIIVESTOR BERVECES, LLC IRMSFER AGENT AIJDAEG11ST84ry, AUTHDRIZED SIGNATURE • .11:1•HaAol rslanysleejGcffheCotporalie>tclnil ` : ' 1,4,ha'd MCA iht C ae•enlilisd, ash matter of li hl,. ' ' �,o • e • " k • mPu?e M lho Corpop lled it aulhorized le raueThe _ The Csrpatelfen lsaulhorized le Inve thi r ol.lwahtse SAY C6 m t lock dr refer,kr l i1C�ae-and ytatonn, jnsePpdo iorrvas Amts sd ape 1 nu'font, p}e(e,ya �latyensand elo :' eaph el Sloekanho OnYeog to in DI beenslthr cteGBleitd once�17 i`aCmond6e furnished �SFn�nY het haltrbr�wei!hp j clhrpaupon �° Shansi ". of authorised el which' on lif0,l ▪ ' - , wain regYest la Iha Cotporolioa h arty on life 1n mg ~ el !Is prineipel place • The following abbievf lions 1�% ee used • " ' r ' owl Rill aCobrdin ' h lIonie insedpti6n.nn the la ~ 0 �pµLtahJe huts brytguletlon�: G! OW 11ils ;unit, shall' be consl ' TEN! Cg1N' rUE▪ d'asltleughihe wort as tenants Ill CO • • Y• kwtiHetr mmlin'' • Tyr ENT`• ` as:ignatJts.6y the entireties UKl��QlF7:iVji)� AG7�, JT Tf:N — as -joint tenant$with right Gust vstadi•an • of survivorship ind not a$ under Uniform Gifts to Minors MINOR tenants in common Act Addllfonal abbrevldliOna may Pleb be aced ihtugh not le the above 11s1. STATE :for iialue receiyed,___heieby sell, asst n -.I .._ 9 and transfer unto • 'IlO:t a ilk erf bnnlal Setorily or AC( idenlirpiog nelDk or of 7ee19Aee PLEASE PAINT Da. rPEwRITE NAME ANn ADDRESS ne ASSIGN▪ EE of the capit;l'stack- rJipresentad by the within Ce'rtificatiA, art Shares irrevocably constitufe:and appoint d do hereby Attloriiey •,to transfer. -the said stock on the •books of the withi Dnrpration with tuff power of substitution in thepremise - n named Dated, • NOTICE, The sigtialurelo th)e at ignrpentmust correspond with the name es written Upon the (ace o! the cerl)nl;tte, In wary particular, without alteration or enlargement, or any change whatever. SI Gi1ATURE.QUARRNTEED: • • ,,, • COLORADO DEPARTMENT OF REVENUE Liquor Enforcement Division 1375 Sherman St, Denver CO 80261 September.2005 AFFIDAVIT OF TRANSFER AND STATEMENT OF COMPLIANCE Pursuant to the requirements of 12-47-303(3)(b), Colorado Revised Statutes, Licensee hereby states that all accounts for alcohol beverages sold to the Applicant are: m Paid in full. There are no outstanding accounts with any Colorado Wholesalers. p Licensee hereby certifies that the following is a complete list of accounts for alcohol beverages that are unpaid: Licensee and Applicant agree that all accounts will be paid for from the proceeds at closing by the: O Licensee DApplicant ❑ Licensee unavailable to certify disposition of accounts for alcohol beverages - Inventory list attached. Transfer by operation of law - Regulation 47-304. o Applicant will assume full responsibility for payment of the outstanding accounts as listed above. ❑ No alcohol beverage inventory transferred or sold. Licensee hereby authorizes the transfer of its Colorado Retail Liquor License to the Applicant, its agent, or a company, corporation, partnership or other business entity to be formed by the Applicant. Dated this 4- day of T"--A?-14' , 20. Seller: Carpco LLC & 7 -Eleven, Inc. State Lic #04-00326 Licensee & License Number Buyer: 7 -Eleven Inc. Applicant 7 -Eleven Store 39510A 7 -Eleven Trade na Signature Manager Position David Carpenter Print Name Tr- . = na Signature Market Mgr (with POA), 7 -Eleven, Inc. Position David Raab Print Name SENDER: COMPLETE THIS SECTION Le mplete items 1, 2, and 3; r Print your name and address on the reverse so that we can returri the card to you. ■ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: HIGH COUNTRY BEVERAGE CORP. ATTN: Credit Dept / Kevin Boyer 4200 RONALD REAGAN BLVD. JOHNSTOWN, CO 80534 II u RIII III liii 111111 JI IJ I II I III 9590 9402 5759 0003 2843 79 COMPLETE THIS SECTION ON DELIVERY re ❑ Agent C. `� n AddYesse B. Received by (Printed Name) C. Date of Delivery D. Is delivery address different from item 1? O Yes if YES, enter delivery address below: O No 2. Article Number (Transfer from service label) !7019 1120 0000 7461 2045 PS Form 3811, July 2015 PSN 7530-02-000-9053 3. Service Type ❑ Adult Signature ❑ Adult Signature Restricted Delivery ❑ Certified Mail® ❑ Certified Mail Restricted Delivery ❑ Collect on Delivery O Collect on Delivery Restricted Delivery ❑ Insured Mail ❑ Insured Mail Restricted Delivery (over $500) ❑ Priority Mail Express® ❑ Registered Mail", ❑ Registered Mail Restricted Delivery ❑ Return Receipt for Merchandise ❑ Signature Confirmation", ,• O Signature Confirmation Restricted Delivery Domestic Return Receipt u i i USPP:T13A KIN # 1ft1liHJ1f1 i 9590 9402 5759 0003 2843 79 United States Postal Service I 11H First -Class Mail Postage & Fees Paid. LISPS _ Permit No. G-10 • Sender: Please print your name, address, and ZIP+4® in this box• DILL DILL STONBRAKER & HUTCHINGS PC ATTN: Becky Spencer-Keith(SEVEE.875) 455 Sherman St, Ste 300 Denver, CO 80203 iliI1ill�III,Iri'iill rill flip iii�fjirilli(ri}IIII1)111111i lir DILL DILL DILL DILL CARR STONBRAKER AND HUTCHINGS P.C. ATTORNEYS AT LAW DILLo DILL DILL DILL CARR STONBRAKER AND HUTCHINGS P.C. ATTORNEYS AT LAW i 1111111 i INEOPOST FIRST-CLASS MAIL 03/04/2020 $006.90° US POSTAGE 7019 1120 0000 7461 2038ktIVE;1 041M11459621 ZIP 80203 AMERICAN EAGLE DISTRIBUTING ATTN: Credit Dept/Nathaniel Janes 3800 CLYDESDALE PARKWAY LOVELAND, CO 80538 CERTIFIED MAIL' 395ro NEOPOST 03/04/2020 US POSTAGE FIRST-CLASS MAIL $006.90° 7019 1120 0000 7461 2045 ZIP 80203 •'ri. u. r 041M11459621 HIGH COUNTRY BEVERAGE CORP. ATTN: Credit Dept / Kevin Boyer 4200 RONALD REAGAN BLVD. JOHNSTOWN, CO 80534 39510 SENDER: COMPLETE THIS SECTION II' Complete Items 1, 2, and'3. • Print your name and address onthe reverse so that we can return the card to you.. • Attach this card to. the back of the mailpiece, 3 or:.on the front if space permits. 1. Article Addressed to: AMERICAN EAGLE DISTRIBUTING ATTN: Credit Dept/Nathaniel Janes 3800 CLYDESDALE PARKWAY LOVELAND, CO 80538 111111111111111111111:1111 I I I L IBIII I III I III 9590:9402 5759 0003 2843 86 2.._A_ rtic1&Numherlaasfeotom service /abeD...:__ ... ._ 7019 1120 0000 7461 2038 PS Form 3811, July2015 PSN 7530-02-000-9053 3NI"I 03_11001V 0101'SS38OOV N80138 3111 d0 111018 3111 01 3d013AN3 20 dOl IV 8930118 30V1d Signature X O Agent ❑ Addressee C. Date of Delivery D. Is delivery address different from Item 1? O Yes If YES, enter delivery address below: ❑ No 3. Service Type ❑. Adult Signature ' ❑ Adult Signature Restricted Delivery O Certified Mall® ❑ Certified Mall Restricted Delivery ▪ Collect on Delivery O Collect on Delivery, Restricted Delivery O Signature ConflrmationTM O Insured, Mail O Signature Confirmation O Insured Mail Restricted Delivery Restricted Delivery (over $500) SENDER: COMPLETE THIS SECTION • Complete: items` 1, 2, and 3. • Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the mailpiece, or on the front If space permits. 1. Article Addressed to: HIGH COUNTRY BEVERAGE CORP. ATTN: Credit Dept / Kevin Boyer 4200 RONALD REAGAN BLVD. JOHNSTOWN, CO 80534 �� i illlll IIII �� 11111111111111 II I�� I ICI 9590 9402 57591 0003 2843 79 2,.Article_Number,(Transfer from service label) 7019 1120 0000 7461 2045 PS Form 3811, July 2015 PSN 7530-02-000-9053 A:'Signature `' X B. Received by (Printed Name) ❑ Priority Mall'Express® ❑ Registered MalITM ❑ Registered Mall Restricted Delivery ❑ Return Receipt for Merchandise: Domestic Return Receipt O Agent O Addressee C. Date of Delivery D. Is delivery address different from item 1? ❑ Yes If YES, enter delivery address below: O No 3. Service Type O Adult Signature O Adult Signature Restricted Delivery O Certified Mali® O Certified Mall Restricted Delivery O Collect on Delivery O Collect on Delivery Restricted Delivery ❑ Insured Mall ❑ Insured Mal6Restricted Delivery (over $500) ❑ Priority, Mall Express® O Registered g�Mali D Registered egis d -Mail Restricted Dlivery O`Retum Recelpt for Merchandise ❑ Signature ConflrmatlonTM ❑ Signature Confirmation Restricted Delivery Domestic Return Receipt 395/0 STATE OF COLORADO AFFIDAVIT COUNTY OF DENVER AFFIDAVIT WITH RESPECT TO SOURCE OF FUNDS TO BE INVESTED WITH THE FOLLOWING APPLICANT: 7 -Eleven, Inc. dba 7 -Eleven Store 39510H 1. THE AMOUNT TO BE INVESTED IN THIS ENTERPRISE IS: $5,120,000 2. THE SOURCE OF SAID FUNDS IS: Existing corporate funds/7-Eleven, Inc. Held at Bank of America David Raab, Market Mgr. (with POA) Subscribed and sworn to me this 2114 day of `)itU Lk , 20 W. Notary Public My Commission Expires:tut/OZ U Property #714 3914 State Hwy. 119 Longmont, Colorado ASSET PURCHASE AGREEMENT 1. PARTIES. This Asset Purchase Agreement (this "Agreement") dated as of January 31, 2020 is by and between Carpco, LLC, an Iowa limited liability company (the "Carpco Entity"), and JKDE, Inc., an Iowa corporation (the "Newco Entity" and, together with the Carpco Entity, the "Seller"), and 7 -Eleven, Inc., a Texas corporation (the "Buyer"). 2. REAL PROPERTY / ASSETS. (a) Seller owns fee simple title or a leasehold interest in the real property and improvements located at 3914 State Hwy. 119, Longmont, Colorado, as more fully described on Exhibit A attached hereto (the "Real Property"). Seller operates a twenty-four (24) hour convenience store (including, without limitation, the sale of beer) and motor fuels dispensing business (collectively, the "Store Business") at the Real Property. In accordance with the terms and conditions contained herein, Seller agrees to sell to Buyer and Buyer hereby agrees to purchase from Seller the Assets (as hereafter defined) used in connection with the Store Business, and Seller agrees to convey to Buyer and Buyer agrees to acquire from Seller good and marketable leasehold interest in the Real Property (the "Leasehold Interest"). (b) In accordance with the terms and conditions contained herein, Seller agrees at the Closing (as hereafter defined) to convey to Buyer, and Buyer agrees to buy and pay for: (i) all fixtures located at the Real Property (the "Fixtures"), (ii) all equipment located on the Real Property (the "Store Equipment"), (iii) underground storage tanks and associated piping, lines, dispensers, leak detectors, pumps and other related equipment located at the Real Property (the "Motor Fuels Equipment"), (iv) the motor fuels inventory located, as of the Closing, in underground storage tanks specifically disclosed to Buyer (the "Motor Fuels Inventory"), (v) the Merchandise Inventory (as hereafter defined), (vi) the Supplies (as hereafter defined), (vii) other personal property relating to the operation of the Store Business at the Real Property (all such items described in this (vii), together with the Motor Fuels Equipment and Store Equipment, are referred to herein as the "Equipment"), (viii) all goodwill related to the Store Business, including, without limitation, all customer lists and all relationships with customers of and vendors to the Store Business (the "Goodwill"), and (ix) all existing permits, licenses, and approvals issued by governmental or other authorities related to the Store Business (the "Existing Permits"), specifically including but not limited to, all licenses and permits pursuant to which beer, wine, liquor, and other alcoholic beverage products are or may be sold at the Real Property. The Leasehold Interest, the Fixtures, the Equipment, the Supplies, the Merchandise Inventory, the Motor Fuels Inventory, the Goodwill, and the Existing Permits are herein collectively referred to as the "Assets". The Assets shall not include those items listed on Exhibit C attached hereto and incorporated herein (the "Excluded Assets"). Buyer shall have the right to inspect and evaluate the Equipment and all other Assets during the Feasibility Period (as hereafter defined). (c) The Real Property is one of nine (9) separate real properties in which Seller holds a fee simple or leasehold interest and at which Seller operates a Store Business (the "Related Real Properties"). The Related Real Properties are set forth on Exhibit B to this Agreement. Concurrently with the execution of this Agreement, Seller and Buyer have entered into an asset purchase agreement for each Related Real Property providing for Buyer to purchase the assets related to the Store Business at, and to acquire a leasehold interest in, such Related Real Property (each such agreement, a "Related Asset Purchase 61491140v.3 Agreement"). The parties agree to complete the Closing of the transactions contemplated by all Related Asset Purchase Agreements concurrently, unless waived in writing by Seller and Buyer, and the parties agree to cooperate reasonably toward completion of such concurrent Closing under all Related Asset Purchase Agreements. (d) Any breach or default by a party under any Related Asset Purchase Agreement shall constitute a default by such party under this Agreement, and any breach or default by a party under this Agreement shall constitute a default by such party under each Related Asset Purchase Agreement. An alleged failure of a party to fulfill an obligation under any Related Asset Purchase Agreement shall not constitute a breach or a default unless the party does not cure the failure within the time periods provided in the Related Asset Purchase Agreement for notice and cure. (e) If a party has the right under any Related Asset Purchase Agreement to terminate such Related Asset Purchase Agreement, the party shall also have the right to terminate all other Related Asset Purchase Agreements, and the termination by a party of any Related Asset Purchase Agreement shall constitute the termination by the party of all Related Asset Purchase Agreements. Notwithstanding the foregoing or anything else set forth in this Agreement or any Related Asset Purchase Agreement, in the event a party's right to terminate this Agreement or a Related Asset Purchase Agreement is pursuant to Section 11 hereof or thereof, the parties may agree in writing to solely terminate the individual Related Asset Purchase Agreement and not to terminate all of the Related Asset Purchase Agreements. 3. ESCROW AGENT. The parties agree that Republic Title of Texas, Inc., or its designated affiliate (herein "Escrow Agent") shall act as escrow agent and shall receive and deliver all documents or instruments and receive and disburse all sums of money according to the terms of this Agreement and the written instructions of the parties. The fee or charge of Escrow Agent and any costs of recording documentation of the Leasehold Interest (including, without limitation, the Memorandum and the SNDA, as hereafter defined) shall be split equally between the parties. Seller shall be solely responsible for the cost recording the release of any existing financial or other encumbrances and any documentation to cure Title Objections. 4. TITLE. (a) At Seller's expense, Seller shall obtain (i) preliminary title documentation and extended coverage leasehold title insurance for the Leasehold Interest from Escrow Agent, including, without limitation, a preliminary title report or binder (herein the "Title Commitment") giving the current condition of title to the Real Property, together with copies of all instruments necessary to fully explain the scope and effect of any matters listed as exceptions in the Title Commitment, whereby Escrow Agent is bound to issue to Buyer an ALTA (2006) extended coverage title insurance policy with liability equal to an amount acceptable to Buyer as determined during the Feasibility Period (the "Title Policy"), and (ii) a current as -built A.L.T.A. survey for the Real Property in a form acceptable to the Escrow Agent and Buyer (the "Survey"). As part of obtaining the Title Policy, a memorandum of the Leasehold Interest (i.e., a memorandum of lease if Seller owns the fee interest in the Real Property at the Closing or a memorandum of assignment of lease if Seller holds a leasehold interest in the Real Property at the Closing) in form approved by the parties during the Feasibility Period (the "Memorandum") shall be executed by the parties and recorded at the Closing and, if there are any mortgages (or similar financial encumbrances) on the Real Property, a subordination, non -disturbance, and attornment agreement in form approved by the parties and the mortgagee during the Feasibility Period (the "SNDA") shall be executed by the parties and the mortgagee and recorded at the Closing. Seller shall pay all charges by Escrow Agent with respect to its issuance of the Title Commitment and Title Policy and all costs in connection with obtaining the Survey. To the extent approved by the Escrow Agent and except to the extent any such items constitute Permitted Encumbrances, the Title Policy shall include deletion of exceptions to coverage of rights of parties in possession not shown by the public records (except for the tenant under the 61491140v.3 Third Party Lease), judgment liens, purchase money liens or mortgages and any related deeds of trust, assignments or similar instruments (except to the extent a mortgage on the Real Property is subject to an SNDA in favor or Buyer), any lis pendens or similar encumbrances, mechanics' and materialmen's liens, and, where allowed by law or regulation, affirmative coverage over matters of record which could limit or prohibit Buyer from using the Real Property as a twenty-four (24) hour convenience store with beer sales and a motor fuels dispensing facility. (b) Following Buyer's receipt and review of the Title Commitment and Survey for the Real Property (including copies of underlying documentation), Buyer may notify Seller, at or prior to the expiration of the Feasibility Period, of Buyer's title and survey objections with respect to the Real Property (such objections shall be collectively referred to herein as the "Title Objections"). Seller shall cure such Title Objections within twenty (20) days of receipt of notice from Buyer and to notify Buyer of the curative matters. Buyer shall have ten (10) days to examine any curative matters. To the extent Seller is unable to satisfactorily cure any Title Objections, Buyer may elect to terminate this Agreement (and the Deposit (as hereafter defined) shall be promptly returned to Buyer) or, at Buyer's option, the parties will negotiate in good faith to agree on an equitable reduction in the Purchase Price or other equitable resolution, failing which Buyer may terminate this Agreement (and the Deposit shall be promptly returned to Buyer). The following shall be "Permitted Encumbrances": (i) the Memorandum, (ii) the SNDA, and (iii) all exceptions to title shown on the Title Policy and not objected to by Buyer, or cured by Seller and waived by Buyer. (c) The Leasehold Interest shall be created and granted to Buyer at the Closing in accordance with the following provisions: (i) Intentionally omitted. (ii) Seller shall assign the subject lease for the Real Property (the "Assigned Lease") to Buyer at the Closing in a form of lease assignment to be agreed by the parties during the Feasibility Period (the "Assigned Lease Assignment"). The Leasehold Interest created by the Assigned Lease Assignment shall include all interest of Seller in any leasehold improvements at the Real Property. Seller shall be responsible to obtain any required consents for assignment of the Assigned Lease to Buyer. (d) The parties acknowledge that the Real Property is subject to certain agreements and obligations related to the motor fuels facility and Motor Fuels Equipment. Prior to the Closing, Seller at its cost shall terminate all such agreements and obligations, expressly including, without limitation, any motor fuel supply agreements, branding and/or incentive agreements, and fuel transportation agreements. (e) The parties acknowledge that the Real Property is subject to a lease agreement with Subway Real Estate, LLC ("Existing Tenant") dated January 24, 2012, pursuant to which the Existing Tenant occupies a portion of the Real Property for the operation of a submarine sandwich business (the "Third Party Lease"). Seller represents and warrants that no consent from the Existing Tenant or any other party is required for the assignment of the Third Party Lease to Buyer. Seller shall assign the Third Party Lease to Buyer at the Closing. 5. CONSIDERATION. The purchase price to be paid to Seller, subject to prorations, set -offs and deductions as provided herein, for the conveyance of the Assets (excluding the Merchandise Inventory and Motor Fuels Inventory) shall be Five Million One Hundred Twenty Thousand and 00/100 Dollars ($5,120,000.00) (herein the "Purchase Price"). The parties acknowledge that the Purchase Price includes Twenty Thousand and 00/100 Dollars ($20,000.00) as consideration for Seller's obligation to obtain and 61491140v.3 pay for the Title Commitment and Title Policy, the Survey, underground storage tank and system tightness testing, a Phase I environmental site assessment, and a site investigation report for the Real Property and Assets (regardless of the actual cost of the foregoing items, except that the cost of the site investigation report is limited as provided in Section 10 below). In addition to the Purchase Price, Buyer will pay to Seller in accordance with the terms of Sections 9 and 15 below the Merchandise Inventory Cost (as hereafter defined) and Motor Fuels Inventory Cost (as hereafter defined). 5A. DEPOSIT. Within five (5) business days after the date of this Agreement, Buyer shall deposit Ten Thousand and 00/100 Dollars ($10,000.00) with the Escrow Agent (the "Deposit"). Notwithstanding the foregoing, the Deposit may, at Buyer's election, be in the form of a letter of credit. The Deposit shall be refundable to Buyer unless Buyer defaults in its obligation to complete the Closing after the satisfaction or waiving of all Contingencies. At the Closing, the Deposit shall be applied as a credit against the Purchase Price (provided Buyer shall promptly deposit funds equal to the Deposit with Escrow Agent for delivery to Seller at Closing in the event the Buyer elects to utilize a letter of credit as the Deposit). If this Agreement is terminated due to an uncured breach by Buyer in its obligation to complete the Closing after the satisfaction or waiver of all Contingencies provided below and if Seller is entitled to receive the Deposit hereunder, Buyer shall promptly deposit funds equal to the Deposit with Escrow Agent for delivery to Seller. In Buyer fails to deposit funds equal to the Deposit as required following written request from Escrow Agent, then Escrow Agent is authorized to draw upon Buyer's letter of credit to pay the Deposit to Seller. 6. SELLER RETAINED LIABILITIES. Buyer shall not assume, pay, perform, discharge or otherwise be responsible for, any debts, liabilities, obligations, contracts, loans, leases, commitments or undertakings of Seller, of any type whatsoever, whether fixed, unliquidated, absolute, contingent, or otherwise, and whether due or to become due, known or unknown ("Retained Liabilities") including, without limitation, the following liabilities or obligations: (i) any liability arising out of or relating to the ownership or operation of the Store Business or the Assets prior to the Closing including, but not limited to, any liability arising out of any contracts or the existence of any Hazardous Materials (as defined herein) on or beneath the Real Property, or the ownership, use, or operation of the Motor Fuels Equipment or the supply of motor fuels to or the sale or storage of motor fuels on the Real Property; (ii) any liability of Seller for any taxes of any kind relating to any period prior to the Closing; (iii) any liability or obligation of Seller owed to any of its affiliates, employees, officers or owners; (iv) any liability of Seller for a violation of, or failure to satisfy, any legal requirement incurred or imposed prior to the Closing, and (v) any liability arising out of or relating to the possession, use or ownership of any of the Excluded Assets. 7. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and warrants to Buyer as set forth below. For purposes of this Section 7, "to the best of Seller's knowledge" and "aware" shall mean the actual knowledge of David Carpenter. (a) The Carpco Entity is a limited liability company validly existing and in good standing under the laws of the state of Iowa, and has all requisite corporate power and authority to execute and deliver this Agreement and to perform its respective obligations hereunder, and the execution, delivery and performance of this Agreement has been duly authorized by all necessary action on the part of all necessary members, officers, directors and shareholders thereof. The Newco Entity is or will be prior to the Closing a corporation validly existing and in good standing under the laws of the state of Iowa, and has or will have prior to the Closing all requisite corporate power and authority to execute and deliver this Agreement and to perform its respective obligations hereunder, and the execution, delivery and performance of this Agreement has been or will be prior to the Closing duly authorized by all necessary action on the part of all necessary members, officers, directors and shareholders thereof. 61491140v.3 (b) Seller's ownership interest, whether fee or leasehold, in the Real Property is free and clear of (i) any mechanics' and materialmens' liens or mortgages given to secure borrowed monies (except as disclosed on Exhibit D), or (ii) except to the extent insured over pursuant to Section 4(a) or waived by Buyer during the Title Objection process set forth in Section 4(b), any restrictive covenants, easements or other encumbrances which could limit or prohibit the use of the Real Property as a twenty-four (24) hour convenience store building operation with a motor fuels dispensing facility. (c) The Assets, including the Leasehold Interest, Fixtures, Equipment (including the Motor Fuels Equipment), Merchandise Inventory, Supplies and Motor Fuels Inventory, are owned, and will be conveyed to Buyer on the Closing, by Seller free and clear of any liens, security interests and encumbrances, except for the Permitted Encumbrances. (d) To the best of Seller's knowledge, the Store Business is in compliance with all applicable federal, state and local laws, regulations, permits and ordinances (herein "Legal Requirements"). Seller has received no written or oral notice of any violation of any Legal Requirements in connection with the Real Property. Seller currently has in place the Existing Permits and, to the best of Seller's knowledge, the Existing Permits include all permits, licenses, and approvals necessary to conduct the Store Business on a twenty-four (24) hour basis, and Seller is in compliance with all licenses and permits (including all licenses and permits pursuant to which beer, wine, liquor, and other alcoholic beverage products are or may be sold at the Real Property, if applicable) pertaining to the operation of the Store Business at the Real Property. Seller shall furnish such Existing Permits to Tenant for its review and approval within five (5) business days after the full execution of this Agreement. (e) The Fixtures and Equipment are in good working condition in all material respects. (f) There are no pending condemnations, expropriations, eminent domain or other similar proceedings affecting the Assets or access to and from the Real Property. All access points are permitted by law or covered by easements over adjoining property which easements are in full force and effect without default or, to the best of Seller's knowledge, allegations of default on the part of any party thereto. (g) All Motor Fuels Equipment, including the underground storage tanks (USTs), piping and dispensers is free of leaks, in compliance with all applicable Legal Requirements, are of the type and age disclosed in Exhibit E, and does not require any maintenance or replacement. Except to the extent disclosed in the Phase I or Phase II environmental assessment reports for the Real Property, to the best of Seller's knowledge, there are (i) no pre-existing environmental conditions on or under the Real Property except as has been (or will be prior to the Closing) disclosed to Buyer in writing, and (ii) no Hazardous Materials are located on or beneath the Real Property or have migrated from the Real Property to adjoining property. No claim or demand has been made or notice received from any governmental agency or third party with respect to Hazardous Materials existing on, or originating from, the Real Property. As used herein, "Hazardous Materials" shall mean (i) any substance, waste or material, including without limitation, those defined as "hazardous", "toxic" or "regulated" in any applicable federal, state or local environmental law, regulation or ordinance and (ii) any other substance which requires special handling or notification of any federal, state or local governmental entity in connection with its collection, storage, transportation, treatment or disposal. (h) Except for the Third Party Lease, all existing contracts (including motor fuels supply contracts, maintenance contracts, merchandise supply contracts, employment contracts or other leases or contracts pertaining to the Real Property or the Store Business) are terminable by their terms on or before the Closing and no liability under such contracts will be assumed by Buyer. 61491140v.3 (i) To the best of Seller's knowledge, there are no pending or proposed municipal betterments for which a lien could be imposed on the Real Property or the Leasehold Interest. (j) Seller has received no notice and is not otherwise aware that all or any part of the Real Property is in violation of(1) any zoning, subdivision, building, health, traffic, environmental, flood control or other applicable rules, regulations, ordinances or statutes of any local, state or federal authorities or any other governmental entity having jurisdiction over the Real Property or (2) any outstanding covenants or any instruments affecting the Real Property. (k) There are no suits, actions, orders, decrees, claims, writs, injunctions or proceedings pending or, to the best of Seller's knowledge, threatened against Seller, or affecting all or any part of the Real Property or the operation thereof before any court or administrative agency or officer which, if adversely determined, would have a material adverse effect upon the operation or condition, financial or otherwise, of all or any part of the Real Property or Assets. (1) All bills and claims for labor performed and materials furnished to or for the benefit of Seller with respect to the Real Property and Assets will either be paid in full by Seller at or before the Closing or shall be bonded over by Seller. (m) To the best of Seller's knowledge, all public utilities, including without limitation, sewer, water, telephone, cable television, broadband internet or DSL service, electricity and gas required for the operation of the Store Business at the Real Property, enter through and in accordance with valid easements. (n) To the best of Seller's knowledge, the Real Property has free and unimpeded access to public highways, and sufficient frontage thereon, and all approvals necessary for access have been and are, as of the Closing, in full force and effect. (o) To the best of Seller's knowledge, all documents, reports, and other materials delivered or made available by Seller for Buyer's review in connection with this Agreement are true, correct, and complete. (p) To the best of Seller's knowledge, there exists no default, or event or condition that with the delivery of notice or the passage of time would become a default, under the Assigned Lease or the Third Party Lease. (q) There are no rights of first refusal, purchase options, or similar rights in any motor fuel supply agreement, branding and/or incentive agreement, or fuel transportation agreement related to the Real Property or the Assets. (r) There are no rights of first refusal, purchase options, or similar rights in the Assigned Lease or the Third Party Lease. The representations and warranties contained in this Section 7 shall survive the Closing for a period of one (1) year except for the representations and warranties set forth in Sections 7(a), 7(c), 7(g) (second and third sentence only), and 7(1), which shall survive the Closing for a period of two (2) years. 7A. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and warrants to Seller the following: 61491140v.3 (a) Buyer is a corporation validly existing and in good standing under the laws of the state of Texas, and has all requisite corporate power and authority to execute and deliver this Agreement and to perform its respective obligations hereunder, and the execution, delivery and performance of this Agreement has been duly authorized by all necessary action on the part of all necessary members, officers, directors and shareholders thereof. (b) This Agreement constitutes a valid and binding obligation of Buyer and is enforceable against Buyer in accordance with its terms. The execution and delivery by Buyer of this Agreement does not, and the consummation of the transactions contemplated hereby, and compliance with the terms hereof, will not conflict with, or result in any violation of or default under, (a) any provision of the organizational documents of Buyer; (b) any court order or Legal Requirements applicable to Buyer, or the property or assets of Buyer; or (c) any contracts to which Buyer is a party, or by which Buyer, or its respective assets may be bound. (c) Buyer has the necessary funding to meet all of its obligations under this Agreement, including, without limitation, the Purchase Price, any adjustments thereto, and all of its fees and expenses to consummate the transactions contemplated by this Agreement. Buyer acknowledges that the obtaining of any financing is not a condition precedent to the obligations of Buyer to consummate the transactions contemplated hereby. (d) If Buyer notifies Seller in writing that all Contingencies have been satisfied and/or waived, then Buyer will have conducted its own independent investigation, inspection, verification, review, and analysis of the Store Business, Assets and Real Property (including the environmental condition thereof), which investigation, inspection, verification, review, and analysis will have been conducted by Buyer or Buyer's representatives, agents or contractors. Buyer acknowledges that, except as set forth in this Agreement (or any certificates or agreements provided by Seller for the Closing or otherwise in connection with this Agreement), none of Seller, Seller's officers, shareholders or employees, or any other person representing Seller has made any representation or warranty, expressed or implied, on which Buyer is relying as to the accuracy or completeness of any information regarding the Store Business, Assets or Real Property furnished or made available to Buyer. The representations and warranties contained in this Section 7A shall survive the Closing for a period of one (1) year except for the representations and warranties set forth in Sections 7A(a) and 7A(b), which shall survive the Closing for a period of two (2) years. 8. INTERIM OBLIGATIONS OF SELLER. (a) From the date of this Agreement until the Closing, Seller shall (i) carry on the Store Business at the Real Property in the ordinary course, (ii) maintain all qualifications and all permits which are required to carry on the Store Business at the Real Property, (iii) except to the extent agreed by Buyer or as necessary to sell through items which will not be purchased by Buyer, maintain its Merchandise Inventory and Motor Fuels Inventory mix and levels in accordance with past practices consistent with the mix and levels existing on the date hereof, (iv) not enter into any contracts which are not terminable without penalty at the Closing, (v) not incur or suffer any liens or encumbrances on any of the Assets except for Permitted Encumbrances, (vi) maintain competitive pricing on the motor fuels in keeping with the applicable trade area, (vii) take such steps as are necessary to assure that Seller's representations and warranties are true on the Closing in all material respects, subject to Section (b) below, and (viii) not amend, modify, or extend the term of any agreements or contracts pertaining to the Real Property or the Store Business without Buyer's consent, including, without limitation, the Assigned Lease and the Third Party Lease, nor grant any consents, approvals, or waiver of any rights or obligations thereunder. 61491140v.3 (b) In the event that, during the Feasibility Period, Seller becomes aware of the occurrence or non-occurrence of any event or the existence of any fact or condition making any of the Seller's representations or warranties contained herein to be inaccurate or untrue, Seller shall promptly notify Buyer in writing thereof and provide an update to any applicable Exhibits. Without limiting any other rights of Buyer under this Agreement (including, without limitation, for a default by Seller if Seller causes any representations or warranties to become inaccurate or untrue), Buyer shall have ten (10) days from receipt of Seller's notice of a representation or warranty becoming inaccurate or untrue in which Buyer may terminate this Agreement by written notice to Seller, and if Buyer so terminates this Agreement, the Deposit shall be promptly returned to Buyer. If Buyer does not so elect to terminate this Agreement, Buyer shall have been deemed to have waived the right to terminate this Agreement with respect to the matters disclosed in the notice to the extent not caused by Seller. (c) For a period beginning on the full execution of this Agreement and ending on the expiration of the Feasibility Period (subject to the extensions set forth in Section 10 below), Buyer and its authorized representatives shall have the right, upon reasonable notice to Seller and provided there is no unreasonable interference with Seller' s operation of the Store Business, to inspect the Real Property and the Assets and the Store Business during normal business hours (i) to confirm the condition of the Real Property, the improvements thereon and the Assets and that the Real Property and the Store Business can continue to be used as a convenience store with motor fuels facility in a manner consistent with a 7 -Eleven operation, and (ii) for the purpose of locating easements and utilities, making inspections, testing, surveying, performing site analyses and engineering studies, and taking core samples for environmental and engineering reports or such other actions as Buyer may reasonably require; provided, however, no invasive testing shall occur without Seller's consent (and, as necessary, the fee owner/lessor's consent) as to the location and extent of such testing, which consent shall not be unreasonably withheld, and Buyer shall promptly restore the affected portion of the surface of the Real Property and shall indemnify, defend and hold Seller (and, as applicable, the fee owner/lessor) harmless for any Damages (as hereinafter defined) (i) resulting from Buyer's failure to restore the affected portion of the surface of the Real Property and (ii) asserted by third parties as a result of Buyer's invasive testing, provided that in no event shall Buyer have any responsibility for any pre-existing conditions. In addition, Buyer and its authorized representatives shall have the right to inspect Seller's books, accounts and records, and all other relevant documents and Seller will make available, and use reasonable efforts to cause its independent accountants to make available, copies of all such documents and information with respect to the Store Business, the Real Property, and the Assets as representatives of Buyer may from time to time reasonably request. (d) If, in connection with the inspections conducted by Buyer prior to the Closing, Buyer identifies maintenance deficiencies regarding the Real Property and improvements or the Assets, excluding the underground storage tank and system and other Motor Fuels Equipment, but including but not limited to HVAC, refrigeration equipment, electric service, plumbing, roofs, parking lots or structural aspects of the Real Property or Assets, or deficiencies with regard to compliance with applicable Legal Requirements (including health code requirements and the Americans With Disabilities Act), and such maintenance or compliance deficiency will have a material adverse effect on Buyer's ability to operate the Store Business from and after Closing, Buyer will obtain an estimate of the cost of repairs. Seller and Buyer will, prior to the Closing, reasonably agree on an estimated amount to repair the items identified (the "Repair Amount"). At the Closing, Buyer shall be entitled to a deduction against the Purchase Price of the Repair Amount to the extent it exceeds Five Thousand and 00/100 Dollars ($5,000.00). Alternatively, Seller may elect to repair any such deficiency to Buyer's reasonable satisfaction and shall have the right to extend the Feasibility Period pursuant to Section 10(b) if necessary for Seller to complete any such repairs. If Seller does not elect to repair any such deficiencies (or fails to repair any such deficiency to Buyer's reasonable satisfaction) and the parties cannot agree on a Repair Amount, Buyer may elect to terminate this Agreement upon written notice to Seller, and the Deposit shall be promptly returned to Buyer. The parties acknowledge and agree that the provisions of this Section 8(d) shall not apply to the underground storage tank and system 61491140v.3 or other Motor Fuels Equipment, which shall be repaired by Seller at its sole cost in accordance with Section 10(a)(vi). 9. MERCHANDISE AND MOTOR FUELS INVENTORY. (a) A physical inventory of (i) fresh, in -code, undamaged and non -obsolete merchandise products offered for resale to customers at the Real Property (the "Merchandise Inventory"), and (ii) certain supplies consisting of items requiring on -site preparation or items not for separate resale including (w) syrups and CO2 canisters, (x) coffee and hot chocolate, (y) cups, nacho bowls and other containers or packaging, and (z) mixes or materials, condiments, packaging and supplies related to the in-store food service, including hotdogs, nachos, or other similar items, and cleaners, brooms, price guns mops and other general supplies (collectively, the "Supplies") shall be taken at the Real Property at the Closing by an inventory service acceptable to Buyer (the "Merchandise Inventory Service"). Seller and Buyer shall each pay one half of the fees owed to such Merchandise Inventory Service. The Merchandise Inventory and Supplies shall not include any items that are expired, damaged, out -of -code, or obsolete, including as may be identified by Buyer prior to the Closing, and such items shall be part of the Excluded Assets removed from the Real Property by Seller prior to the Closing. Any Excluded Assets (including inventory not counted) not removed will be deemed abandoned by Seller, and Buyer may dispose of them in any manner Buyer may elect without accounting to Seller. The Merchandise Inventory shall be purchased at Seller's actual net documented cost, taking into account all discounts and allowances. Seller will provide Buyer with such documented cost information at least five (5) business days prior to the Closing. The total amount to be paid by Buyer for the Merchandise Inventory shall be referred to as the "Merchandise Inventory Cost". Supplies shall be included within the Purchase Price set forth in Section 5 above. (b) At the Closing, Seller shall take, and Buyer (acting through its employees and agents) or, in Buyer's sole discretion, an inventory service acceptable to Buyer (the "Motor Fuels Inventory Service"), shall have the right, in Buyer's sole discretion, to observe Seller's taking of, an inventory of the Motor Fuels Inventory, which shall be performed by taking appropriate readings of all underground storage tanks, which readings shall be adjusted to reflect any water actually contained in such tanks. Seller and Buyer shall each pay one half of the fees owed to any such Motor Fuels Inventory Service. Buyer shall purchase such Motor Fuel Inventory at the price Seller paid its supplier for the last purchase of such grade of motor fuel by Seller prior to the Closing (multiplied by the quantity of each like grade of motor fuel) as determined at the Closing by the Motor Fuels Inventory Service, plus Seller's transport truck rate from Seller's supplier's terminal to the Real Property, less any prompt payment discounts actually received by Seller or to which Seller would be entitled if Seller paid pursuant to prompt payment guidelines (the "Motor Fuels Inventory Cost"). 10. CONTINGENCIES. (a) Seller hereby acknowledges that Buyer is acquiring the Assets for the purpose of operating a twenty-four (24) hour convenience store with a motor fuels dispensing facility on the Real Property. Therefore, the Closing is subject to the satisfaction or waiver of the contingencies and covenants set forth in this Section 10. Buyer may waive any of the conditions, provided such waiver must be in writing and shall not constitute a waiver of any liability of Seller with respect to any condition which is not satisfied due to Seller's breach of warranty or failure to fulfill an obligation under this Agreement. During the sixty (60) day period (subject to extension as provided below, the "Feasibility Period") commencing on the date of the full execution of this Agreement, the parties (as applicable) shall use commercially reasonable efforts to satisfy the following conditions precedent (collectively, the "Contingencies"): (i) Confirming zoning appropriate for Buyer's intended use. 61491140v.3 (ii) Obtaining all permits and approvals from all public or governmental authorities for the intended improvements, use and operations on the Real Property, including the sale of beer. (iii) Buyer's approval of the ingress / egress to and from the Real Property and any offsite development conditions. (iv) Seller shall promptly complete, at Seller's cost, and deliver to Buyer a Phase I environmental assessment report for the Real Property dated not earlier than November 1, 2019 that is satisfactory to Buyer. Such report may be a newly prepared report or an update of an existing report. Seller shall also deliver to Buyer copies of any Phase II environmental site assessments related to the Real Property in Seller's possession or control. If desired by Buyer after reviewing the environmental due diligence materials provided by Seller and considering the applicability of the Colorado Petroleum Storage Tank Fund, Buyer may conduct Phase II Tests (as hereafter defined) at Buyer's cost. (v) Seller shall promptly cause a contractor approved by Buyer to perform site investigation report for the Real Property and deliver such report to Buyer. Seller will be responsible for the cost of such report, except that Seller shall not be obligated to spend more than $3,000 for such report. If such report will cost more than $3,000, Buyer shall be responsible for the costs associated therewith in excess of such amount provided that Seller obtains Buyer's approval on the excess amount prior to proceeding with the report. (vi) Seller shall promptly complete, at Seller's cost, underground storage tank and system tightness testing and other tests of the Motor Fuels Equipment to Buyer's reasonable satisfaction. Seller shall cause any repairs to be completed until all tightness tests pass regulatory requirements and are otherwise satisfactory to Buyer. (vii) Buyer's review and approval of a preliminary title report (including all exceptions) for the Real Property and Leasehold Interest. (viii) Seller shall promptly obtain at its cost and deliver to Buyer the Survey. (ix) Seller and Buyer shall have agreed in writing on the form of the Assigned Lease Assignment, the Memorandum, the SNDA, the Bill of Sale, the Non -Competition Agreement, and any other agreements required or contemplated hereunder. (x) Buyer having reviewed and approved the terms of the Assigned Lease and Seller shall have obtained any required consents for assignment of the Assigned Lease to Buyer, if applicable. Buyer will use good -faith efforts to complete its review of the Assigned Lease promptly after execution of this Agreement. (xi) Buyer having reviewed and approved the terms of the Third Party Lease. (xii) Buyer shall have received all estoppel certificates from third parties requested by Buyer, including with respect to the Assigned Lease and the Third Party Lease. Seller shall use commercially reasonable efforts to obtain such estoppel certificates. 61491140v.3 (xiii) Seller shall terminate all motor fuel supply, branding, and transportation agreements related to the Real Property, at Seller's cost, with the effective date of such termination on or prior to the Closing. (xiv) All guaranties given by Seller or Seller's shareholders, members, officers, directors, affiliates or otherwise with respect to the Assigned Leases shall have been terminated. (b) Buyer may elect to extend the Feasibility Period by thirty (30) days by written notice to Seller. In addition, (i) if Buyer requests from Seller any cure of Title Objections, information from third parties, or any other action and Seller is unable to complete the request or action by the expiration of the Feasibility Period or (ii) if Seller, despite using reasonable efforts, is unable to acquire any third party report or information or complete a third party test including, but not limited to the Title Commitment, Survey, Phase I environmental assessment reports, and the contingencies set forth in Sections 10(a)(iv-vi) or (iii) if any Remedial Measures or maintenance or compliance deficiency repairs pursuant to Section 8(d) are required, Seller may extend the Feasibility Period by the time needed to complete the request, obtain the necessary reports or complete the necessary tests, Remedial Measures or repairs, up to thirty (30) days, by written notice to Buyer. (c) In the event the Contingencies have not been satisfied or waived by Buyer on or before the conclusion of the Feasibility Period (as the same may be extended pursuant to the terms hereof), this Agreement may be terminated, in its entirety, by either party upon written notice to the other, and the Deposit shall be promptly returned to the Buyer. It is understood and agreed that, in the event that the satisfaction of any of the Contingencies set forth in this Section 10 is delayed due to any act or omission of Seller (including, without limitation, Seller's failure to satisfy Seller's obligations under this Agreement), then, at Buyer's option, the Feasibility Period shall be extended by the same number of days that satisfaction of the Contingencies has been delayed due to the act or omission of Seller. (d) Within five (5) business days after the execution of this Agreement, Seller shall deliver or make available to Buyer, at Seller's sole cost and to the extent in Seller's possession, all business, sales, and operating records, preliminary title reports, site plans, environmental reports (expressly including, but not limited to, Phase II environmental site assessment reports and evidence of environmental compliance), geotechnical reports, engineering reports, surveys and copy of applicable fuel contract, copy of all lease agreements affecting the property and any other information that Seller has or is within Seller's control in order to assist Buyer with review and evaluation of the proposed transaction. Seller shall obtain an updated or new Phase I environmental site assessment report promptly as provided above. (e) Seller agrees to cooperate with Buyer, in a timely expeditious manner and at no out-of- pocket cost to Seller, in the event that Buyer should seek any permits, approvals, licenses, consents of permissions in connection with Buyer's intended use of the Real Property and the Assets, and, where necessary and upon prior notice, agrees to permit the use of Seller's name in connection therewith. Seller shall execute such instruments as Buyer may reasonably request with reference to any application by Buyer therefor, whether in name of Buyer or Seller or both, Seller hereby consenting to all such applications, including, without limitation, such reasonable action as is necessary or appropriate to accomplish any and all of the foregoing. (f) In addition to the Contingencies, the following shall be conditions to Buyer's obligation to proceed to the Closing hereunder: (i) Seller having complied with all obligations and covenants required to be performed by Seller hereunder, including, without limitation, having obtained all required 61491140v.3 consents for any assignments contemplated under this Agreement and having completed all Environmental Repairs (as hereafter defined). (ii) All representations and warranties of Seller shall be true and correct at the Closing in all material respects (except to the extent waived by Buyer expressly or pursuant to Section 8(b)), as evidenced by a certificate of Seller to that effect given at the Closing. (iii) All liens or encumbrances (other than the Permitted Encumbrances) affecting the Real Property or Assets shall have been released of record and satisfied in full by Seller and Seller shall have satisfied all requirements of Escrow Agent sufficient to permit the issuance of the Title Policy as provided hereunder. (iv) Seller shall have terminated all agreements and contracts with respect to the Real Property and Assets, including, without limitation, the all motor fuel supply agreements, branding and/or incentive agreements, and fuel transportation agreements, except as Buyer has expressly agreed otherwise in this Agreement. Seller shall have provided Buyer with evidence satisfactory to Buyer of such termination at least five (5) days prior to the Closing. (v) Seller having removed all Excluded Assets in compliance with all applicable laws. (vi) Seller shall have paid in full all Seller's creditors holding claims related to the Store Business or the Real Property (or obtained an SNDA with respect to any mortgage on the Real Property) and shall have provided all notices, if any, required for Seller's creditors to have no claims against Buyer for Seller's obligations, and Seller shall have obtained and delivered to Buyer written documentation from the state department of revenue and any other state or local taxing authorities confirming that all taxes owed by Seller or related to the transaction contemplated by this Agreement have been paid in full. (vii) The Closing under this Agreement will occur concurrently with the Closings under all other Related Asset Purchase Agreements, unless waived in writing by Buyer. (g) Seller's obligation to complete the Closing under this Agreement shall be contingent upon the concurrent Closings under all other Related Asset Purchase Agreements, unless waived in writing by Seller. 11. RISK OF LOSS. (a) All risk of loss or damage to the Real Property or the Assets by fire, windstorm, casualty, or other cause (except for damage caused by Buyer or its agents) shall remain with Seller until Closing. In the event of substantial loss or damage to the Real Property or to the Assets before Closing, Buyer shall have the option of either (i) terminating this Agreement upon written notice to Seller (in which event the Deposit shall be promptly returned to Buyer), or (ii) proceeding to the Closing, in which event Seller shall assign to Buyer all of Seller's rights under any policy or policies of insurance applicable to the Real Property and/or the Assets and in addition pay to Buyer any applicable deductible or self -insured retention. The term "substantial loss or damage to the Real Property or to the Assets" in the preceding sentence shall mean damage which would result in a cost to repair the damage or, if necessary, replace the damage to the Real Property or improvement thereon or the Assets, in excess of One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00) or which results in closure of the Store Business or substantially impairs the 61491140v.3 operation of the Store Business. If the loss or damage is not a "substantial loss" then at Buyer's option, (i) Seller shall promptly undertake repairs prior to the Closing, or (ii) Seller need not undertake such repairs and Buyer shall receive a credit at the Closing against the Purchase Price for the cost to repair. (b) From and after the date hereof, Seller shall give prompt written notice to Buyer of any notice actually received by Seller, or the occurrence of any event actually known to Seller which would, immediately or with notice or the passage of time, prevent Seller from performing its obligations hereunder, or constitute a breach of warranty or representation. Seller shall promptly use its best efforts to correct, cure or eliminate any such item, notice or event which would prevent Seller from performing its obligations hereunder. 12. ENVIRONMENTAL MATTERS. (a) Seller will provide the following certificates, documents, reports, records, studies and information to Buyer within five (5) business days of the execution of this Agreement (to the extent in Seller's possession or control and not done so previously): (i) all environmental reports, records, studies and other documentation (including, but not limited to, soil and groundwater tests and remediation reports), in Seller's or its consultant's possession, pertaining to environmental conditions at the Real Property; (ii) the most current UST registration statements and information showing the type and age of the USTs at the Real Property); (iii) all visual inspection reports and liquid status reports (from the ATG tape taken at the time of the inspection) for the two (2) year period prior to the full execution of this Agreement; (iv) all testing records for the Real Property and Assets (including, without limitation, the Motor Fuels Equipment) for the two (2) year period prior to the full execution of this Agreement; (v) all insurance records (including, without limitation, the Certificate of Financial Responsibility) for the two (2) year period prior to the full execution of this Agreement; and (vi) a preliminary title report, site plans, geotechnical reports, engineering reports, surveys and any other information that Seller has in its possession or is within Seller's control. (b) Upon the full execution of this Agreement, Seller at its cost shall conduct inspections of components of the motor fuels facility and precision and tightness tests of all Motor Fuels Equipment (including sumps) and systems and testing and evaluation of Stage I and Stage II vapor recovery equipment and cathodic protection testing to Buyer's satisfaction (collectively, the "Motor Fuels Equipment Tests"). If the Motor Fuels Equipment Tests disclose any leaks or other tightness or integrity issues in the Motor Fuels Equipment, or any defects, improperly repaired, improperly functioning, damaged or missing components of the Motor Fuels Equipment, Seller shall promptly (but in any event prior to the Closing), at its sole cost, (i) repair, replace or upgrade, as applicable, any such leaks or other defects or inadequacies (including, if required by applicable Legal Requirements, replace individual components of the Motor Fuels Equipment) and cause such repaired or replaced individual components to be re -certified as to tightness or 61491140v.3 compliance with applicable requirements by Buyer's environmental consultants or by others authorized by Buyer, and (ii) restore the surface condition of the affected portion of the Real Property (collectively, the "Environmental Repairs"); provided that Seller agrees to discuss with Buyer any Environmental Repairs to be made prior to making such Environmental Repairs so as to facilitate the installation of any upgrades or other improvements which may be contemplated or desired by Buyer with such upgrades or other improvements installed at Buyer's sole cost to the extent they are not part of any required Environmental Repairs. In the event any component of the Motor Fuels Equipment has not been upgraded, repaired or replaced to comply with applicable Legal Requirements, Seller, in consultation with Buyer as to the manner, type and sufficiency of the upgrade, repair or replacement, shall promptly undertake and complete such upgrade, repair or replacement at its expense prior to the Closing. The costs of upgrade, repair and replacement will be considered part of the Environmental Repairs. (c) Upon full execution of this Agreement, Buyer shall also have the right to engage the services of a contractor ("Environmental Contractor") to perform soil, groundwater and, if applicable, surface water tests and/or inspections of any existing remediation systems (collectively, "Phase II Tests"). The cost of any Phase II Tests shall be Buyer's responsibility. Notwithstanding the foregoing, no Phase II Tests shall occur without Seller's consent (and, as necessary, the fee owner/lessor's consent) as to the location and extent of such Phase Il Testing, which consent shall not be unreasonably withheld, and Buyer shall promptly restore the affected portion of the surface of the Real Property and shall indemnify, defend and hold Seller (and, as applicable, the fee owner/lessor) harmless for any Damages (as hereinafter defined) (i) resulting from Buyer's failure to restore the affected portion of the surface of the Real Property and (ii) asserted by third parties as a result of Buyer's Phase II Tests, provided that in no event shall Buyer have any responsibility for any pre-existing conditions. Buyer may, at its sole discretion, accept the Phase II provided by Seller in lieu of the new Phase II described above. (d) Buyer shall, promptly upon receipt of Seller's written request, provide to Seller the results of any Phase II Tests performed. (e) If the Motor Fuels Equipment Tests, Phase I report and/or Phase II Tests disclose any conditions which are reportable under applicable Legal Requirements, Seller shall timely notify the Department (as defined below) and any other appropriate governmental entities and provide Buyer with copies of all such notifications. (f) If Remedial Measures (as hereafter defined) are required at the Real Property, Seller, in consultation with Buyer shall promptly undertake Remedial Measures. "Remedial Measures" shall consist of those activities which are required to investigate and/or assess and remediate any Hazardous Materials, including, without limitation, petroleum and petroleum hydrocarbon conditions, lead, mold, and asbestos, existing prior to the Closing in, on or beneath, or migrating from, the Real Property or any improvements thereto prior to the Closing in order to comply with all applicable Legal Requirements and all schedules, approvals and requirements of the appropriate governmental entities (the "Department"), which Remedial Measures shall be undertaken in such a manner as to cause the least possible disruption to the Store Business. Seller will use the Environmental Contractor to perform any Remedial Measures required to be performed by Seller hereunder. Seller shall provide to Buyer copies of all reports generated in connection with the Remedial Measures which are provided to the Department. Buyer will not be obligated to perform the Remedial Measures (or take any action regarding environmental conditions for which Seller is responsible hereunder, including, without limitation, any testing, assessment, remediation, or pursuit of funds from the state environmental tank fund, provided Buyer shall reasonably cooperate at no out-of- pocket cost to Buyer with Seller in its pursuit of funds from the state environmental tank fund). However, if Buyer incurs costs in connection with addressing environmental conditions for which Seller is responsible 61491140v.3 hereunder and if Buyer intends to seek reimbursement from Seller for such costs, then Buyer may pursue such reimbursement from Seller only after Buyer has pursued reimbursement of such costs from the applicable state environmental tank fund (or after Buyer has reasonably determined that reimbursement from such fund will not be available). To the extent that Seller is obligated to perform Remedial Measures at the Real Property and Buyer agrees to permit such Remedial Measures to be performed after the Closing, Seller and Buyer will enter into an Access Agreement (the "Access Agreement"), which shall grant to Seller the right to enter upon the Real Property to perform Remedial Measures which shall be undertaken in such a manner so as to minimize interference with Buyer's operations thereon and which shall more specifically govern the performance by Seller of the Remedial Measures at the Real Property. (g) Buyer shall cause the Environmental Contractor to prepare and deliver to Seller and Buyer prior to the Closing an estimate of cost of anticipated (i) Remedial Measures at the Real Property, and (ii) any Environmental Repairs which Buyer agrees, in its sole discretion, need not be completed by the Closing, which amounts will be placed by Seller into escrow at the Closing and distributed to Seller as the work is performed in accordance with an escrow agreement (the "Escrow Agreement") by and among Escrow Agent and the parties. Seller will be responsible for any amounts incurred in completing the Remedial Measures and all Environmental Repairs in excess of the amounts placed in escrow. (h) Remedial Measures for the Real Property shall be deemed completed for purposes of this Agreement upon receipt by Seller (and delivery to Buyer) from the Department or other appropriate governmental authority of "a "No Further Action", "Closure" or similar written statement from the Department ("Closure Letter"). Notwithstanding the foregoing, Remedial Measures shall not be deemed completed if Buyer would be required to restrict the use of the Real Property in any way in order to obtain, or otherwise as a condition of obtaining, such Closure Letter, provided however that Buyer may waive this limitation in writing. Receipt of the Closure Letter will not affect or diminish Seller's indemnification obligations under Section 17 below. (i) Notwithstanding anything in this Section 12 to the contrary, if after receiving the Motor Fuels Equipment Tests, Phase I report and/or Phase II Tests, Buyer concludes, in its sole discretion, that the environmental condition of the Real Property materially impacts the Store Business or exposes or could expose Buyer to material liability arising from such condition, taking into account factors such as the existence or likelihood of offsite migration, the existence or likelihood of impact to groundwater or drinking water sources, the extent of on -site levels of contamination, the cost and business disruption likely to be caused by required Remedial Measures and the time likely required to perform Remedial Measures and reimbursement eligibility from the applicable state environmental tank fund or otherwise, Buyer may, by delivering written notice to Seller, unilaterally terminate this Agreement and thereafter this Agreement shall be null and void (and the Deposit shall be promptly returned to Buyer). (j) If, at any time after Closing, during the performance of the Remedial Measures at the Real Property, Buyer has reason to believe that a post -closing release has occurred, Buyer shall notify Seller immediately and take those steps required, in Buyer's opinion, or as required by the Department, to determine and abate the source of the release. If, upon subsequent investigation by Buyer, hydrocarbon contamination is determined to have occurred subsequent to the Closing, Seller and Buyer shall agree on an allocation of responsibility for tests undertaken by Buyer and for the remediation expenses from that date forward based on the degree to which the post -closing release increased the estimated overall remediation costs, with Buyer and Seller to be responsible for their respective share of the costs and entitled to receive the reimbursement applicable to their respective share. Unless otherwise mandated by the Department, no post -closing release shall affect Seller's status as responsible party with respect to any pre - closing release or affect or diminish Seller's obligations under Section 17 below. 61491140v.3 (k) Following the Closing, the parties acknowledge that governmental bodies and/or regulators may request from time to time additional records, reports, information and other documentation pertaining to the Real Property or Assets which may be in Seller's possession. Seller shall provide Buyer copies of any such records, reports, information and other documentation within ten (10) days after Buyer's demand therefor. The terms and conditions of this Section 12 shall survive the Closing. 13. NO BROKER. Each party represents and warrants to the other that all negotiations and discussions concerning the Assets has taken place without the involvement of a broker. Each party agrees to indemnify, defend and hold harmless the other from and against any claims brought by any brokerage firm or individual alleging that they are entitled to a commission arising from this transaction. 14. CLOSING. (a) The closing of the transaction contemplated hereby shall take place by mail and/or electronically with the Escrow Agent in Dallas, Texas, on or before thirty (30) days after Buyer has notified Seller in writing that all Contingencies have been satisfied and/or waived, unless another time and date is agreed to in writing by the parties. (b) On the date of the actual closing (the "Closing"), the following events shall occur: (i) Seller and Buyer shall execute and deliver a bill of sale and general assignment in a form to be agreed by the parties during the Feasibility Period (the "Bill of Sale"), conveying the Fixtures, Equipment, Merchandise Inventory, Supplies and Motor Fuels Inventory. (ii) Seller and Buyer shall execute and deliver the Assigned Lease Assignment. (iii) No later than the date of Closing, Buyer shall pay the Purchase Price (as adjusted in accordance with this Agreement and less any amounts credited against the Purchase Price pursuant to this Agreement) by wire transfer in immediately available funds to an account or accounts designated by Seller. (iv) Seller shall make available possession of, and Buyer shall accept possession of, the Real Property and the Assets, which Buyer acknowledges will be in an "as is" condition and on a "where is" basis, subject to the representations, warranties, and obligations of this Agreement, except as otherwise expressly represented or warranted or provided in this Agreement. (v) Seller shall instruct Escrow Agent to issue and deliver to Buyer the Title Policy (which shall include the Memorandum being executed by the parties and recorded and shall include the SNDA being executed by the parties and the mortgagee and recorded), and Seller shall pay the Escrow Agent for all premiums associated therewith. Seller and Buyer will each pay one half of the cost of any escrow or other fees assessed by the Escrow Agent in connection with the Closing. (vi) If required by Section 12, Seller and Buyer shall execute and deliver the Access Agreement and the Escrow Agreement. (vii) Seller shall deliver to Buyer evidence of termination of any contract (including any operations agreement or any motor fuels supply contract) affecting the Real Property or the Store Business. 61491140v.3 (viii) To the extent consistent with the provisions of this Agreement, Seller shall execute and deliver at the Closing such other conveyances, certificates of title or bills of sale reasonably requested by Buyer. (ix) Seller shall execute and deliver to Buyer the FIRPTA Affidavit. (x) Each party shall have delivered evidence reasonably satisfactory to other party of the authority of persons executing this Agreement and the other documentation to be executed and delivered hereunder. (xi) Seller shall have delivered such customary affidavits and indemnities as Buyer's title insurance company may reasonably require in order to issue so-called owner's and lender's title insurance policies, if applicable, insuring Buyer's title to the Real Property. (xii) Seller and Buyer shall take a physical inventory of the Merchandise Inventory and Motor Fuels Inventory. (xiii) Seller shall enter into the Non -Competition Agreement (as hereafter defined). (xiv) Seller and Buyer shall enter into a mutual termination of the business conversion program ("BCP") franchise agreement (and related BCP documentation) in place between the parties. (xv) Seller shall assign the Third Party Lease to Buyer. 15. POST CLOSING OBLIGATIONS. (a) On or prior to five (5) business days after the Closing, Seller and Buyer shall agree on the amount of the Merchandise Inventory Cost and Motor Fuels Inventory Cost based on the physical inventory performed pursuant to the terms hereof, and within five (5) business days after the Closing, Buyer shall pay Seller the full amount thereof by wire transfer, check, or other form of immediately available funds. (b) If the Store Business at the Real Property is not currently branded as "7 -Eleven", Buyer shall have the right, at its sole option, to use on a temporary basis after the Closing any trademarks and trade names currently used at the Store Business and on any Supplies. (c) For a period of two (2) years after the Closing, Buyer shall file all applications or other documentation, make all necessary payments and take all other actions to keep the Store Business and Real Property eligible and in good standing with respect to the Colorado Petroleum Storage Tank Fund, to the extent such filings, payments, or other actions pertain to the use of the Real Property after the Closing or the operation of the Store Business after the Closing. 16. TERMINATION. (a) This Agreement may be terminated (i) at any time prior to the Closing by mutual consent of both parties (and the Deposit shall be promptly returned to Buyer); (ii) at any time upon material breach of this Agreement by written notice from the non -breaching party to the breaching party, provided that the breach is not cured within ten (10) days after receipt of such notice (and the Deposit shall be given to the non -breaching party); or (iii) by written notice from either Buyer or Seller to the other if the Closing shall not have occurred within sixty (60) days of the Closing as originally scheduled pursuant to Section 14 above 61491140v.3 (and the Deposit shall be promptly returned to Buyer); provided that neither party can exercise the right of termination described in subpart (iii) if the event giving rise to the termination is due to the failure of such party to perform its covenants or obligations contained herein or due to a breach of warranty given by such party. (b) If this Agreement is terminated pursuant to 16(a)(i) or (iii) above, such termination shall be without liability of or to either party to the other, provided, if, any party (or a person associated therewith) deliberately fails to fulfill a condition to the performance of any other party or to perform a covenant of this Agreement or breaches this Agreement and this Agreement is terminated pursuant to Section 16(a)(ii) or (iii) by the other party, then the rights of the terminating party to pursue all legal remedies will survive such termination, including the right to recover any and all actual damages sustained or incurred by the other party in connection with such failure or breach, provided that neither party shall be liable for lost profits or other consequential damages, and except, however, that notwithstanding anything to the contrary contained in this Agreement, Seller's right to recover damages shall be limited to the (i) Deposit and (ii) reimbursement for all reasonable out-of-pocket expenses incurred by Seller in connection with this Agreement up to the date of termination, including, but not limited to, legal fees, consulting fees, costs of procuring Title Commitments, Surveys, Phase I reports, site investigation reports, tank tightness testing, curing Title Objections, and termination of fuel supply agreements required hereunder to the extent such termination occurs after Buyer has notified Seller in writing that all Contingencies have been satisfied and/or waived. (c) In addition to any other remedies which Buyer may have at law or in equity, Seller hereby agrees that Buyer shall have the right to have all obligations, undertakings, agreements and other provisions of this Agreement specifically performed by Seller and that Buyer shall have the right to obtain an order or decree of such specific performance against Seller in any of the courts of the United States or of any state or other political subdivision thereof having jurisdiction. This paragraph shall survive the Closing. 17. INDEMNIFICATION. (a) From and after the Closing, Seller shall indemnify, defend and hold Buyer harmless from any and all claim, liability, loss, obligation, damage, cost (including attorney's and consultant's fees) or expense (collectively, "Damages") suffered by Buyer, its officers, directors, agents, employees and representatives and their successors and assigns as a result of (i) any inaccuracy of Seller's representations and warranties set forth herein, (ii) any actual or threatened demand, claim, suit, action or proceeding arising out of or resulting from the conduct of the Store Business on or prior to the Closing; (iii) the failure by Seller to perform, pay, defend, discharge or otherwise be responsible for the Retained Liabilities; (iv) the use, generation, manufacture, production, storage, release, threatened release, discharge, disposal, or presence prior to the Closing of a Hazardous Material on, under, or from the Real Property, (v) the installation, operation and maintenance of the Motor Fuels Equipment prior to the Closing, including, but not limited to, compliance with Legal Requirements, or (vi) any obligations under any motor fuel supply agreements, branding and/or incentive agreements, or fuel transportation agreements (except for any post - Closing obligations under any such agreement expressly assumed by Buyer at the Closing). Notwithstanding the foregoing, Seller shall not be responsible under this Section 17 for Damages (y) to the extent caused by the negligence or willful misconduct of Buyer, its officers, directors, agents, employees and representatives, or their successors and assigns, or (z) to the extent coverage is not available or coverage is limited under the Colorado Petroleum Storage Tank Fund as a result of Buyer's failure to comply with Section 15(c) hereof. (b) In the event that Buyer makes a claim for indemnification against Seller under Section 17(a)(iv) or with respect to any other environmental condition existing prior to Closing, Buyer shall provide Seller with reasonable cooperation, at Seller's sole cost and expense, with respect to Seller's pursuit of 61491140v.3 coverage under the Colorado Petroleum Storage Tank Fund with respect to such indemnification claim. In the event that Buyer incurs costs or other Damages in connection with addressing any such environmental conditions for which Seller is responsible hereunder and if Buyer intends to seek reimbursement from Seller for such costs or other Damages, then Buyer may pursue such reimbursement from Seller only after Buyer has pursued reimbursement of such costs from the Colorado Petroleum Storage Tank Fund (or after Buyer has reasonably determined that reimbursement from such fund will not be available for reasons other than Buyer's failure to comply with Section 15(c) hereof). (c) From and after the Closing, Buyer shall indemnify, defend and hold Seller harmless from any and all Damages asserted against Seller by third parties as a result of (i) any inaccuracy of Buyer's representations and warranties set forth herein, (ii) any actual or threatened demand, claim, suit, action or proceeding arising out of or resulting from the conduct of the Store Business after the Closing, including, but not limited to, any liability arising out of any contracts with respect to any employees of Buyer and any taxes resulting from the conduct of the Store Business; (iii) Buyer's use, generation, manufacture, production, storage, release, threatened release, discharge, disposal, or presence after the Closing of a Hazardous Material on, under, or from the Real Property, (iv) the installation, operation and maintenance of the Motor Fuels Equipment after the Closing, including, but not limited to, compliance with Legal Requirements, or (v) any obligations under any motor fuel supply agreements, branding and/or incentive agreements, or fuel transportation agreements expressly assumed by Buyer at the Closing. Notwithstanding the foregoing, Buyer shall have no obligations under this Section 17 for Damages to the extent caused by the negligence or willful misconduct of Seller, its officers, directors, agents, employees and representatives, or their successors and assigns. (d) If a claim for indemnification that is covered by this Agreement is made by a third party against Buyer or Seller (the party benefitting from the indemnification obligation, the "Indemnified Par "), and if the Indemnified Party intends to seek indemnity with respect thereto under this Section, the Indemnified Party shall promptly notify the party required hereunder to indemnify the Indemnified Party (the "Indemnifying Party") of such claim. The Indemnifying Party shall, in a timely manner, undertake, conduct and control, through counsel reasonably acceptable to The Indemnified Party, and at the Indemnifying Party's expense, the settlement or defense thereof', and the Indemnified Party shall reasonably cooperate with the Indemnifying Party in connection therewith (at no out-of-pocket cost to the Indemnified Party); provided that: (I) The Indemnifying Party shall not thereby permit to exist any lien or other adverse charge upon any asset of the Indemnified Party without the Indemnified Party's prior consent; (ii) The Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by the Indemnified Party, provided that the fees and expenses of such counsel shall be borne by the Indemnified Party; (iii) The Indemnifying Party shall not settle any claim (1) unless the terms of such settlement provide for the full and effective release of the Indemnified Party (without (a) the payment of funds by the Indemnified Party, (b) the imposition of any burden or lien on, or criminal or civil penalties, consent orders or decrees or admissions of guilt (or comparable plea) or wrongdoing or negligence required to be entered by or against, the Indemnified Party or with respect to its assets, or (c) any adverse change in the Indemnified Party's method of conducting its business or any permits), and (2) without the Indemnified Party's consent (which consent shall not be unreasonably withheld), except that if consent is withheld solely on the basis of the amount of such proposed settlement, the Indemnifying Party shall 61491140v.3 not be responsible for any damages relating to such claim that exceed the amount of such proposed settlement. (e) If the Indemnifying Party does not notify the Indemnified Party in a timely manner (but in no event later than ten (10) days after receipt of the Indemnified Party's notice of a claim of indemnity hereunder) that the Indemnifying Party elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim in the exercise of its exclusive discretion at the expense of the Indemnifying Party. The Indemnified Party shall, however, notify The Indemnifying Party of any compromise or settlement of any such claim. The Indemnifying Party shall promptly reimburse the Indemnified Party for the damages to which the Indemnified Party is entitled by reason of this Section. (f) The indemnification obligations contained in this Section 17 shall survive the Closing with respect to matters of which the Indemnified Party has given the Indemnifying Party notice within two (2) years after the Closing. The parties hereto agree that the provisions in this Agreement relating to indemnification, and the limits imposed on the Indemnified Party remedies with respect to this Agreement and the transactions contemplated hereby were specifically bargained for between sophisticated parties and were specifically taken into account in the determination of the amounts to be paid hereunder. 18. NOTICES. Any notice hereunder shall be in writing and shall be deemed to have been properly given when sent by (a) courier; (b) United States Certified Mail, Return Receipt Requested, postage prepaid; or (c) a nationally recognized overnight courier, shipping charges prepaid, to the addresses which follow: SELLER: BUYER: ESCROW AGENT: 19. GENERAL. Carpco, LLC JKDE, Inc. 10644 Justin Drive Urbandale, Iowa 50322 Attn: David Carpenter 7 -ELEVEN, INC. Attn: Corporate Real Estate Cypress Waters 3200 Hackberry Road Irving, Texas 75063 Property # REPUBLIC TITLE OF TEXAS, INC. Attn: Sarah Jane Worrell-Bowdoin 2626 Howell Street, 10th Floor Dallas, Texas 75204-4064 (a) This Agreement merges all prior negotiations and understandings between the parties and constitutes their entire agreement regardless of any written or verbal representations of any agent, manager, or other employees of Buyer to the contrary. (b) As a material inducement to Buyer to execute this Agreement, Seller agrees to fully cooperate with Buyer, at no out-of-pocket expense to Seller, in obtaining all necessary permits, licenses or other matters which are necessary to enable Buyer to obtain and use the Assets for the purposes contemplated, and Seller further agrees that this obligation shall survive the Closing. 61491140v.3 (c) The provisions hereof shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, legal representatives, successors, and assigns. Seller agrees that Buyer may assign his interest herein to any person or entity it may designate including a trust, corporation or partnership or designate any person or entity to take title to the Assets. (d) This Agreement shall be performed and enforced in accordance with the laws of the state in which the Real Property is located without regard to principals of conflicts of law. In the event of a dispute regarding this Agreement, the prevailing party shall be entitled to recover from the non -prevailing party attorneys' fees and costs in addition to any other amounts awarded. (e) Modification, waiver, amendment, discharge or changes of or to this Agreement shall not be valid unless the same is in writing and signed by the party against whom the enforcement of such modification, waiver, amendment, discharge, or change is sought. (f) No waiver of any breach of any agreement or provision herein contained shall be deemed a waiver of any preceding or succeeding breach thereof or of any other agreement or provision herein contained. No extension of time for the performance of any obligation or act shall be deemed an extension of time for the performance of any other obligation or act. (g) Seller shall provide all notices and take all other actions required under any bulk sales law or similar law in connection with the transactions contemplated by this Agreement. (h) If more than one person or entity is named as Seller or Buyer in this Agreement, the words "Seller" or "Buyer" wherever used in this Agreement, are intended to refer to all such persons or entities, and the liability of such persons or entities for compliance with the performance of all the terms, covenants and provisions of this Contract shall be joint and several. If the Newco Entity has not been created at the time this Agreement is executed, then Seller and the person signing this Agreement for the Newco Entity below represent and warrant that the Newco Entity will be created prior to the Closing and the person signing this Agreement will be authorized to sign for the Newco Entity, and Seller and such signer agree that, upon the formation of the Newco Entity, the Newco Entity shall be responsible for the obligations of Seller under this Agreement and shall promptly deliver to Buyer a ratification, amendment, or other appropriate documentation of such formation and responsibility. The Carpco Entity may convey business assets (and other non -real estate assets) held by the Carpco Entity to the Newco Entity only after formation of the Newco Entity and delivery to Buyer of documentation confirming the Newco Entity's responsibility for obligations of Seller hereunder (together with the Carpco Entity). The Carpco Entity will be responsible for all obligations of Seller (including any stated as the responsibility of the Newco Entity) until the Newco Entity is formed and obligated under this Agreement or if the Newco Entity is not formed and obligated under this Agreement (but formation of the Newco Entity does not release the Carpco Entity of any obligation or liability under this Agreement). (i) This Agreement shall not be effective unless and until the same has been executed and delivered by all parties hereto. To facilitate the execution of this Agreement, the parties may execute and exchange counterparts of signature pages affixing their signature by means of an electronic signature tool, application, or software (e.g., DocuSign). Each such electronic signature of a party shall be treated as an original as if personally signed by that party 20. PRORATIONS. (a) The following items shall be prorated as of the Closing and paid by Buyer and Seller as applicable: 61491140v.3 (i) Current real estate and personal property taxes and any other water, sewer or other municipal use or improvement tax, charge or other assessment affecting the Real Property or the Assets; (ii) Fuel (excluding the Motor Fuels Inventory) and other supplies (including, without limitation, heating, oil and propane), if any, on hand and paid for, at the then current price therefor; (iii) Rents, deposits, prepaid expenses, and similar items payable or receivable under the Assigned Lease and the Third Party Lease, if applicable; and (iv) Any Franchise fees or other payments owed from Seller to Buyer pursuant to the BCP franchise agreement (and related BCP documentation) in place between the parties. (b) Charges for water, gas, power, light and other utility service shall be the responsibility of Seller with respect to service up to the date of Closing and shall be Buyer's responsibility with respect to service on and after the date of Closing. The parties shall endeavor to obtain meter readings or other evidence of the amounts due for utilities before Closing, but if such readings or evidence cannot be obtained before Closing, the Closing shall be completed without adjustment of the same, and upon obtaining such reading or evidence after Closing Seller shall pay Buyer the charges incurred before the Closing based on such reading. (c) Seller shall pay all state and local taxes imposed in connection with the conveyance of the Leasehold Interest and the Assets to Buyer, including any sales taxes, and all other conveyance or transfer taxes or documentary stamp taxes imposed in connection with the conveyance of the Leasehold Interest and the Assets to Buyer. (d) If the amount of any tax, charge or assessment is undetermined on the Closing, the last determined tax, charge or assessment shall be used for the purpose of the proration described above, with a reapportionment as soon as the new rate is determined. In the event that, after the Closing, any of such taxes, charges or assessments shall be reduced by abatement, the amount of such abatement, less the reasonable cost of obtaining the same, shall be apportioned between the Buyer and Seller, provided that neither Buyer nor Seller shall be obligated to institute or prosecute proceedings for an abatement, unless otherwise provided herein. (e) In the absence of error or omission, all prorations, adjustments and credits made and determined as herein provided shall be final as of the Closing, unless otherwise specified herein. If, subsequent to the Closing but no later than six (6) months after the date thereof, an error or omission in the determination or computation of any of the prorations, adjustments and credits shall be discovered, then, immediately upon discovery thereof, the Buyer and Seller shall make the appropriate adjustments required to correct such error or omission. (1) The provisions of this Section 20 shall survive the Closing. 21. NON -COMPETITION. At the Closing, Seller (and its principals and affiliates) shall enter into a non -competition agreement (using Buyer's standard form, subject to agreement during the Feasibility Period) prohibiting Seller (or its principals and affiliates) from operating a convenience store or motor fuels facility in the state of Colorado for a period of five (5) years after the Closing (the "Non -Competition Agreement"); provided, however, that Seller (or any of its affiliates or principals) shall not be prohibited 61491140v.3 from developing convenience stores or motor fuels facilities in the state of Colorado on Buyer's behalf. Consideration for the Non -Competition Agreement is included in the Purchase Price. <Remainder of page intentionally left blank.> 61491140v.3 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. SELLER CARPCO, LLC, an Iowa limited liability company By: Vaw�, (, wrutf r Name: David Carpenter Its: Sole Manager (seal) JKDE, INC., an Iowa corporation Vavud, (,atvpkr By: Name: David Carpenter Its: President BUYER (seal) ATTEST: 7 -ELEVEN, INC., a Texas corporation g'e`t l ra.tn.4 Vtsft,(, By: By: Robin Bryant Assistant Secretary Exhibit A: Exhibit B: Exhibit C: Exhibit D: Exhibit E: 61491140v.3 Name: Grant Distel Its: Attorney -in -Fact (seal) Legal Description Related Real Properties Excluded Assets Mechanics' Liens, Materialmens' Liens and Mortgages Underground Storage Tanks Exhibit A Legal Description The Real Property referred to herein below is situated in the County of Weld, State of Colorado, and is described as follows: Parcel I: A tract of land situate in the NE 1/4 of the NE1/4 of Section 10, Township 2 North, Range 68 West of the 6th P.M., Weld County, Colorado, described as follows: Beginning at the NE corner of said Section 10, thence South 89°31' West 450 feet along the North line of the NE1/4 of said Section 10, thence South 30 feet to the South right-of-way line of Highway No. 119 (formerly known as Highway No. 25), the True Point of Beginning; thence South 89°31' West 65 feet along said South right-of-way line of said Highway; thence South 45°05' West 234.1 feet along the easterly side of an irrigation ditch; thence South 49°35' East 303.0 feet; thence North 362.7 feet more or less to the True Point of Beginning; EXCEPT that parcel in Rule and Order recorded January 19, 1995 at Reception No. 2423540, County of Weld, State of Colorado; and further EXCEPT that portion conveyed by deed recorded January 15, 1971 at Reception No. 1560570. Parcel II: That tract of land located in the NE1/4 of Section 10, Township 2 North, Range 68 West of the 6th P.M., Weld County, Colorado, being more particularly described as follows: Commencing at the NE corner of said Section 10; thence along the North line of said NE1/4 South 89°31'00" West 450.00 feet whence the North 1/4 corner thereof bears S89°31'00" West 2191.17 feet; thence S00°00'00" East 392.20 feet to the Northeast corner of that tract of land known as Parcel 1 as described by Deed recorded at Reception #01932647 of Weld County Records and the Point of Beginning; thence South 90°00'00" West 195.00 feet; thence North 00°00'00" West 166.02 feet to a point on the northeasterly line of that tract of land known as Parcel 2 as described by Deed recorded at Reception #01932647 of Weld County Records; thence along said northeasterly line South 49°35'20" East 256.10 feet to the Point of Beginning, County of Weld, State of Colorado. 61491140v.3 Exhibit B Related Real Properties Store No. Address Interest at Closing 712 16310 E. Quincy Ave., Aurora, CO Assigned Lease Assignment 714 3914 State Hwy. 119, Longmont, CO Assigned Lease Assignment 715 15296 East Hampden Ave., Aurora, CO Assigned Lease Assignment 716 9355 East Dry Creek Rd., Centennial, CO Fee Property Sublease 717 290 S. Pierce St., Lakewood, CO Assigned Lease Assignment 718 3083 Brighton Blvd., Denver, CO Fee Property Lease 719 9590 Federal Blvd., Federal Heights, CO Fee Property Lease 720 11099 East I-25 Frontage Rd., Firestone, CO Fee Property Lease 722 7260 East 36th Ave., Denver, CO Fee Property Lease 61491140v.3 Exhibit C Excluded Assets 1. Cell phone charging cords. 2. Expired, damaged, out -of -code, or obsolete merchandise, including as may be identified by Buyer prior to the Closing. 3. Any equipment or other property that is already owned by Buyer pursuant to the BCP franchise agreement in place between the parties or otherwise. 61491140v.3 Exhibit D Mechanics' Liens, Materialmens' Liens and Mortgages Leasehold Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing from Carpco, LLC, an Iowa limited liability company, to The Public Trustee for the County of Weld, for the benefit of First National Bank of Omaha, a national association, dated March 6, 2017 and recorded on March 7, 2017 with the records of Weld County, Colorado at Reception No. 4283860. 61491140v.3 Exhibit E Underground Storage Tanks Tank Number 1 2 Capacity 20,000 20,000 (8,000/12,000 split) Substance Stored Gas Gas/ Diesel Installation Date 4/1/2012 4/1/2012 Construction Fiberglass Fiberglass Single or Double Wall Tank Double Double Cathodic Protection No No Electronic Tank Gauge TLS 350 TLS 350 Manufacturer Veeder Root Veeder Root Interstitial Monitor Yes Yes Containment Sump Yes Yes Sump Sensor Yes Yes Alarm or Shut off Yes Yes Overfill Type Auto shutoff Auto shutoff Stage 1 Vapor Recovery Yes Yes Stage 2 Vapor Recovery n/a n/a Stage 2 System Type n/a n/a Submersible Pump unknown unknown Leak Detector Electronic Electronic Product Pipe Flex Flex Double wall Yes Yes 61491140v.3 APPLICATION FOR THE TRANSFER OF A FERMENTED MALT BEVERAGE OFF -PREMISES (COUNTY) LIQUOR LICENSE - 7 -ELEVEN, INC., DBA 7 -ELEVEN STORE 39510H Property Possession Documentation RAFT PREPARED BY AND WHEN RECORDED MAIL TO: 7 -Eleven, Inc. Attn: Legal Depart. 3200 Hackberry Road Irving, Texas 75063 SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY New Store No. Original Store No. 714 3914 State Highway 119 Longmont, Colorado 80504 ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT AND MEMORANDUM OF LEASE This Assignment and Assumption of Lease Agreement and Memorandum of Lease ("Assignment") is made and entered into this day of , 2020 (the "Effective Date"), by and among CARPCO, LLC, an Iowa limited liability company ("Assignor"), and 7 -ELEVEN, INC., a Texas corporation ("Assignee"). WHEREAS, Assignor, as seller, and Assignee, as buyer, are parties to that certain Asset Purchase Agreement, dated January 31, 2020 (as the same may be modified from time to time, the "Contract"), providing, among other things, for the sale by Assignor and the purchase by Assignee of Assignor's leasehold interest in that certain property leased by Assignor and owned in fee by Burger Avenue Investments, LLP, a Colorado registered limited liability partnership ("Landlord"), at 3914 State Highway 119, Longmont, Colorado 80504, as described on Exhibit A attached hereto and made a part hereof (the "Property"), pursuant to (i) that certain Ground Lease dated February 15, 2011 by and between Landlord, as landlord, and J.D. Carpenter Companies, Inc., an Iowa corporation ("Original Tenant"), as tenant; (ii) as modified by that certain Notice of First Extension of Entitlements Period and Amendment to Lease dated August 11, 2011 by and between Landlord and Tenant; (iii) as modified by that certain Notice of Second Extension of Entitlements Period and Second Amendment to Lease dated September 15, 2011 by and between Landlord and Tenant; (iv) as modified by that certain Notice of Third Extension of Entitlements Period dated October 13, 2011 by and between Landlord and Tenant; (v) as amended by that certain Fourth Amendment to Lease dated December 16, 2011 by and between Landlord and Tenant; and (vi) as assigned by that certain Assignment of Ground Lease dated February 24, 2012 from Original Tenant, as assignor, to Landlord, as assignee (collectively, the "Lease"). The Lease is evidenced by the recording of that certain Memorandum of Lease dated January 24, 2012, recorded December 27, 2012 as Document Number 3898902 with the Clerk and Recorder of Weld County, Colorado (the "Memorandum of Lease"); and 1 62405345v.2 WHEREAS, the Contract provides for Assignor to assign to Assignee, and for Assignee to accept assignment from Assignor, of all of Assignor's right, title and interest in and to the Lease and the Memorandum of Lease; and WHEREAS, pursuant to the Contract, Assignor is required to execute and deliver to Assignee this Assignment; and WHEREAS, Assignor represents and warrants that it has the full power and authority to enter into this Assignment. NOW, THEREFORE, in consideration of these premises, the mutual covenants and conditions contained herein, and in the Contract, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Recitals. The foregoing recitals are true and correct in all material respects and are incorporated herein by reference. 2. Capitalized Terms. Any capitalized terms used but not defined in this Assignment shall have the meanings ascribed to such terms in the Contract. 3. Assignment of Lease. Assignor hereby grants, conveys, sells, assigns, transfers, bargains and delivers unto Assignee, and its successors and assigns, all right, title and interest of Assignor as tenant under the Lease TO HAVE AND TO HOLD all right, title and interest of Assignor under the Lease unto Assignee and its successors and assigns forever. 4. Assumption of Lease. Assignee hereby accepts delivery of Assignor's interest in the Lease, and expressly agrees that from and after the Effective Date, Assignee will assume and faithfully perform all obligations and covenants to be performed by tenant under the Lease. Assignor expressly agrees to remain liable for any and all obligations and covenants to be performed by tenant under the Lease prior to the Effective Date. 5. Assignment of Memorandum of Lease. Assignor hereby assigns to Assignee all of its rights and obligations as tenant under the Memorandum of Lease. 6. Effective Date. This Assignment shall be effective on the Effective Date. 7. Governing Law. This Assignment shall be construed, performed and enforced in accordance with the laws of the State of Colorado. 8. Conflict and Inconsistency. To the extent any conflict or inconsistency exists between the provisions of this Assignment and the Contract, the terms of the Contract shall prevail. 9. Counterparts. This Assignment may be executed in one or more counterparts which shall collectively be deemed an original, but all of which shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Assignment effective as of the Effective Date. [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK SIGNATURE PAGES TO FOLLOW/ 2 62405345v.2 [SIGNATURE AND ACKNOWLEDGMENT PAGE OF ASSIGNOR TO ASSIGNMENT] WITNESS the following signatures. CARPCO, LLC, an Iowa limited liability company David Carpenter, Sole Manager ACKNOWLEDGMENT STATE OF COUNTY OF This instrument was acknowledged before me on , 2020, by David Carpenter, as Sole Manager of CARPCO, LLC, an Iowa limited liability company. (seal) NOTARY PUBLIC My Commission expires: 3 62405345v.2 [SIGNATURE AND ACKNOWLEDGMENT PAGE OF ASSIGNEE TO ASSIGNMENT] WITNESS the following signatures. 7 -ELEVEN, INC., a Texas corporation Attest: By: By: Name: Name: Title: Title: ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF DALLAS § BEFORE ME, the undersigned, a Notary Public in and for the aforesaid County and State, on this day personally appeared and , a(an) and a(an) , respectively, of 7 -ELEVEN, INC., a Texas corporation, known to me to be the persons whose names are subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the corporation and that they each executed the same as the act of such corporation for the purposes therein expressed and in the capacities therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of 2020. Signature: _ (seal) Typed or printed name: My commission expires: 4 62405345v.2 Exhibit A Description of Property The real property referred to herein is situated in the County of Weld, State of Colorado, and is described as follows: Parcel I: A tract of land situate in the NE 1/4 of the NE1/4 of Section 10, Township 2 North, Range 68 West of the 6th P.M., Weld County, Colorado, described as follows: Beginning at the NE corner of said Section 10, thence South 89°31' West 450 feet along the North line of the NE1/4 of said Section 10, thence South 30 feet to the South right-of-way line of Highway No. 119 (formerly known as Highway No. 25), the True Point of Beginning; thence South 89°31' West 65 feet along said South right-of-way line of said Highway; thence South 45°05' West 234.1 feet along the easterly side of an irrigation ditch; thence South 49°35' East 303.0 feet; thence North 362.7 feet more or less to the True Point of Beginning; EXCEPT that parcel in Rule and Order recorded January 19, 1995 at Reception No. 2423540, County of Weld, State of Colorado; and further EXCEPT that portion conveyed by deed recorded January 15, 1971 at Reception No. 1560570. Parcel II: That tract of land located in the NE1/4 of Section 10, Township 2 North, Range 68 West of the 6th P.M., Weld County, Colorado, being more particularly described as follows: Commencing at the NE corner of said Section 10; thence along the North line of said NE1/4 South 89°31'00" West 450.00 feet whence the North 1/4 corner thereof bears S89°31'00" West 2191.17 feet; thence S00°00'00" East 392.20 feet to the Northeast corner of that tract of land known as Parcel 1 as described by Deed recorded at Reception #01932647 of Weld County Records and the Point of Beginning; thence South 90°00'00" West 195.00 feet; thence North 00°00'00" West 166.02 feet to a point on the northeasterly line of that tract of land known as Parcel 2 as described by Deed recorded at Reception #01932647 of Weld County Records; thence along said northeasterly line South 49°35'20" East 256.10 feet to the Point of Beginning, County of Weld, State of Colorado. 62405345v.2 ASSIGNMENT OF GROUND LEASE ;IBIS ASSIGNMENT OF GROUND LEASE (this "Assignment"), dated as of the 7"`, day of February, 2012, is made by and between J.D. CARPENTER COMPANIES, INC„ an Iowa corporation ("Assignor"), and CARPCO, L.L.C., an Iowa limited liability company ("Assignee"). Recitals: A. Burger Avenue Investments, LLP, a Colorado registered limited liability partnership, as the "Landlord," and Assignor, as the "Tenant," are parties to a certain Ground Lease dated as of February 15, 201.1, as subsequently amended, demising certain real property located in unincorporated Weld County, Colorado, having an address of 2914 Colorado Highway 119, Longmont, Colorado (the "Lease"). B. . Assignor and Assignee are affiliates of one another, in that they are controlled by common majority ownership interest& Assignor has determined to assign the Lease to Assignee, and Assignee has determined to accept such assignment. NOW, THEREFORE, in consideration of the above premises, and the mutual covenants and agreements set forth herein, the parties agree as follows: 1. Assignor hereby assigns the Lease and all of the Assignor's right, title and interest thereunder to the Assignee, effective as of the commencement date of the term of the Lease, which is January 24, 2012. Assignee hereby accepts the assignment of the Lease and Assignor's right, title and interest thereunder, agrees with and for Assignor and Landlord to be bound by all the terms and provisions of the Lease, and hereby assumes for the benefit of Assignor and Landlord all obligations and duties of the Tenant under the Lease accruing from and after the date of this Assignment. Assignor acknowledges for the benefit of Landlord that Assignor will remain liable for the obligations of the Tenant under the Lease unless and until there is a basis for Assignor's release from liability under the terms of Section 16(a) of the Lease. 2. This Assignment shall be binding upon and inure to the benefit of Assignor and Assignee and their respective successors and assigns. This Assignment shall be governed by and construed in accordance with the laws of the State of Colorado, without reference to its choice of laws principles. [Balance ofpage Intentionally left blank, IN WITNESS WHEREOF, Assignor and Assignee have made this Assignment of Ground Lease effective as of the day, month and year first above written. ASSIGNOR: J.D. CARPENTER COMPANIES, INC., an Iowa corporation 10092103 Bye Dave Carpenter, President ASSIGNEE: CARPCO, L.L.C., an Iowa limited liability company 2 Dave Carpen , President 3898902 Pages: 1 of 5 12/27/2012 11:47 AM R Fee:$31.00 Steve Moreno. Clerk and Recorder. Wald County CO III1 Ki �♦ I'�,E'�',11,�J�F�fr�' h�'1� WiL 4i+�r.N�rii l4+1'.II{� UI II I MEMORANDUM LEASE THIS MEMORANDUM LEASE (this "Memorandum") is made as of the 24th day of January, 2012, by and between BURGER AVENUE INVESTMENTS, LLP, a Colorado registered limited liability partnership ("Landlord"), and CARPCO, L.L.C., an Iowa limited liability company ("Tenant"). RECITALS: A. Pursuant to that certain Ground Lease dated as of February 15, 2011, and made between Landlord and Tenant's predecessor in interest and assignor, J.D. Carpenter Companies, Inc., an Iowa corporation (the "Original Tenant"), as subsequently amended between Landlord and Original Tenant (the "Lease"), Landlord has leased to Tenant and Tenant has leased from Landlord certain real property in the County of Weld, State of Colorado, that is legally described on Exhibit A attached hereto and incorporated herein by this reference (the "Demised Premises"). B. Landlord and Tenant have mutually determined to enter into and record this Memorandum in order to establish record evidence and provide record notice of the Tenant's leasehold interests in the Demised Premises and other rights and interests under the Lease. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in the Lease and in this Memorandum, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Demise. Landlord has demised and leased and hereby demises and leases the Demised Premises to the Tenant, and the Tenant has accepted and does hereby accept such demise and lease, to have and to hold for the Term (as defined below) upon all the terms and conditions set forth in the Lease, which terms and conditions are incorporated herein by this reference and made a part hereof. 2. Term. The term of the Lease and of this Memorandum (the "Term") shall initially be for a period of approximately 15 years, commencing on January 24, 2012 (the "Commencement Date") and expiring on the last day of the 180th full calendar month following the Commencement Date, which is January 31, 2027. 3. Extension Options. Landlord has granted and hereby grants to Tenant options to extend the Term for four (4) successive, consecutive periods of five (5) years each, all in accordance with and subject to the applicable terms of the Lease. Landlord and Tenant shall execute and record in the real property records of Weld County, Colorado, a mutually agreeable form of supplement to this Memorandum with respect to any such extension(s) of the Term; provided, however, any failure to so execute and record any supplement(s) shall not affect the validity of any extension(s) of the Term, and such extension(s) shall be of full force and effect. If Tenant does not exercise an option to extend the Term, Tenant shall execute and deliver to Landlord a statutory form of quit claim deed with respect to the Demised Premises, the Lease and any rights granted or referenced in this Memorandum; provided, however, any failure of NCS- 2617-MPLS(KM) 3898902 Pages: 2 of 5 12/27/2012 11:47 AM R Fee:$31.00 Steve Moreno: Clerk and Recorder. Weld County, CO 1111�,11it+��1,��'1 ��«��J N�F� Iw��lf tfl��l 1I II1 Landlord to record in the real property records of Weld County, Colorado, such quit claim deed shall not affect the validity of any termination of the Lease. 4. Right of First Offer. Landlord has granted and hereby grants to Tenant a right of first offer to purchase the Demised Premises in accordance with and subject to the applicable terms and conditions of the Lease. 5. Other Provisions. In addition to the terms of the Lease referenced herein, the Lease contains numerous other terms, covenants, conditions and provisions which affect the Demised Premises, and notice is hereby given that reference should be made to the Lease directly with respect to the details of such other terms, covenants, conditions and provisions (all of which shall constitute a part of this Memorandum). This Memorandum does not alter, amend, modify or change the terms of the Lease in any respect, and is executed by the parties hereto for the purpose of recordation in the real property records of Weld County, Colorado, in order to give notice of and to confirm the Lease and all of its provisions to the same extent as if all of the provisions of the Lease were fully set forth herein. This Memorandum shall generally be construed as supplemental to and cumulative with the Lease, but in the event of any conflict between the provisions of this Memorandum and those of the Lease, the provisions of the Lease shall control. 6. Successors and Assigns. The terms and provisions of this Memorandum shall be binding upon and inure to the benefit of Landlord and Tenant and their respective successors and assigns. 7. Counterparts. This Memorandum may be executed in any number of counterparts, each of which shall constitute an original, and which together shall constitute one and the same instrument. [Signature blocks follow on next page] 7 3898902 Pages: 3 of 5 12/27/2012 11:47 RP1 R Fee:$31.00 Steve Moreno Clerk and Recorder, Weld County, CO �f IIn 1NI 1KVI:IrYW rail Get IV�r�II�I Niel �I II I IN WITNESS WHEREOF, Landlord and Tenant have executed this Memorandum effective as of the date first set forth above. LANDLORD: BURGER AVENUE INVESTMENTS, LLP, a Colorado registered limited liability partnership orn, Managing Partner STATE OF COLORADO COUNTY OF r The foregoing instrument was acknowledged before me this / / day of freentile/--- 2012, by David L. Osborn, Managing Partner of Burger Avenue Investments, LLP, a Colorado registered limited liability partnership. ) ss. Witness my hand and official seal. My commission expires: /I -llo-Zvi JEANNE T. SANFORD Notary Public State of Colorado My CommliSlon Expire NOvirilibef IL 2013 Tenant's signature block follows on next page] RETURN TO: First American Title Insurance Co. National Commercial Services 801 Nlcollet Malt, Suite 1900 Minneapolis, MN 55402 974155.4 3 3898902 Pages: 4 of 5 12/27/2012 11:47 AM R Fee:$31.00 Steve Moreno, Clerk and Recorder: Weld County, CO ERIK� TENANT: CARPCO, L.L.C., an Iowa limited liability company By: • Dave Carpenter, President STATE OF COLORADO ) ) ss. COUNTY OF P° The foregoing instrument was acknowledged before me this / I C'° day of ,l.)&crrn her-, 2012, by Dave Carpenter, President of Carpco, L.L.C., an Iowa limited liability company. Witness my hand and official seal. My commission expires: Notary /A/74 0/3 679frpe (2' Public ' .Ir:.... _ i .... 3898902 Pages: 5 of 5 12/27/2012 11:47 AM R Fee:$31.00 Steve Moreno: Clerk and Recorder: Weld County: CO t! iPr1Ult.ALIO. MLR *it 11111 EXHIBIT A Demised Premises PARCEL I: A TRACT OF LAND SITUATE IN THE NE 1/4 OF THE NE 1/4 OF SECTION 10, TOWNSHIP 2 NORTH, RANGE 68 WEST OF THE 6TH P.M., WELD COUNTY, COLORADO, DESCRIBED AS FOLLOWS: BEGINNING AT THE NE CORNER OF SAID SECTION 10, THENCE SOUTH 89 DEGREES 31' WEST 450 FEET ALONG THE NORTH LINE OF THE NE 1/4 OF SAID SECTION 10, THENCE SOUTH 30 FEET TO THE SOUTH RIGHT-OF-WAY LINE OF HIGHWAY NO. 119 (FORMERLY KNOWN AS HIGHWAY NO. 25), THE TRUE POINT OF BEGINNING; THENCE SOUTH 89 DEGREES 31' WEST 65 FEET ALONG SAID SOUTH RIGHT-OF-WAY LINE OF SAID HIGHWAY; THENCE SOUTH 45 DEGREES 05' WEST 234.1 FEET ALONG THE EASTERLY SIDE OF AN IRRIGATION DITCH; THENCE SOUTH 49 DEGREES 35' EAST 303.0 FEET; THENCE NORTH 362.7 FEET MORE OR LESS TO THE TRUE POINT OF BEGINNING EXCEPT THAT PARCEL IN RULE AND ORDER RECORDED JANUARY 19, 1995 AT RECEPTION NO. 2423540, COUNTY OF WELD, STATE OF COLORADO. ALSO EXCEPT THAT PORTION CONVEYED BY DEED RECORDED JANUARY 15, 1971. AT RECEPTION NO. 1560570; together with all improvements thereon and appurtenances thereto. PARCEL II: THAT TRACT OF LAND LOCATED IN THE NE 1/4 OF SECTION 10, TOWNSHIP 2 NORTH, RANGE 68 WEST OF THE 6TH P.M., WELD COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NE CORNER OF SAID SECTION 10; THENCE ALONG THE NORTH LINE OF SAID NE 1/4 S 89 DEGREES 31' 00" WEST 450.00 FEET WHENCE THE NORTH 1/4 CORNER THEREOF BEARS S 89 DEGREES 31'00" WEST 2191.17 FEET; THENCE S 00 DEGREES 00' 00" EAST 392.20 FEET TO THE NORTHEAST CORNER OF THAT TRACT OF LAND KNOWN AS PARCEL 1 AS DESCRIBED BY DEED RECORDED AT RECEPTION #01932647 OF WELD COUNTY RECORDS AND THE POINT OF BEGINNING; THENCE S 90 DEGREES 00' 00" WEST 195.00 FEET; THENCE N 00 DEGREES 00' 00" WEST 166.02 FEET TO A POINT ON THE NORTHEASTERLY LINE OF THAT TRACT OF LAND KNOWN AS PARCEL 2 AS DESCRIBED BY DEED RECORDED AT RECEPTION #01932647 OF WELD COUNTY RECORDS; THENCE ALONG SAID NORTHEASTERLY LINE S 49 DEGREES 35' 20" EAST 256.10 FEET TO THE POINT OF BEGINNING, COUNTY OF WELD, STATE OF COLORADO; together with all improvements thereon and appurtenances thereto. 4-1 FOURTH AMENDMENT TO LEASE THIS FOURTH AMENDMENT TO LEASE (this "Amendment") is made as of December 16, 2011, between BURGER AVENUE INVESTMENTS, LLP, a Colorado registered limited liability partnership ("Landlord"), and J.D. CARPENTER COMPANIES, INC., an Iowa corporation ("Tenant"). RECITALS: A, Landlord and Tenant are parties to that certain Ground Lease dated February 15, 2011, for the demise of 3914 Colorado Hwy 119, Longmont, Colorado (the "Original Lease"), as amended by (i) a Notice of First Extension of Entitlements Period and Amendment to Lease made between Landlord and Tenant and dated as of August 11, 2011, (ii) a Notice of Second Extension of Entitlements Period and Second Amendment to Lease made between Landlord and Tenant and dated as of September 15, 2011, and (iii) a Third Amendment to Lease made between Landlord and Tenant and dated November 16, 2011 (collectively the "Lease"). Initially capitalized terms used but not defined in this Amendment shall have the meanings given them under the Original Lease. B. Pursuant to the terms of the Lease, the last day of the Entitlements Period has been extended to the date of this Amendment, or December 16, 2011. Landlord and Tenant have mutually determined to further extend the Entitlements Period pursuant to the terms of this Amendment. NOW, THEREFORE, in consideration ofthe above premises, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant covenant and agree as follows: I. Further Extension of Entitlements Period. The Entitlements Period, as presently expiring on the date of this Amendment, or December 16, 20.11, is hereby further extended for an additional 30 -day period (the "Second Additional Entitlements Extension Period"), running from the date hereof to and including January 17, 2012 (January 15, 2012 being a Sunday, and January .16, 2012 being a national holiday). Iri consideration of this further extension, on or before the date of this Amendment Tenant shall pay Landlord the further sum of $7,500 (the "Second Additional Extension Payment"), which payment will be governed by the provisions of Section 2(d) of the Original Lease that applied to the $7,500 payments for the first three (3) 30 -day extensions of the:Entitlements Period. Notwithstanding the foregoing, however, in the event the Tenant, at any time during the Second Additional Entitlements Extension Period, gives the Landlord notice that the Entitlements Condition has been satisfied or waived, then Tenant will receive credit against Rent for the proportionate share of the Second Additional Extension Payment, allocable on a per diem basis, to the remaining portion of the Second Additional Entitlements Extension Period falling after the date such notice is given. 2. Effect. This Amendment constitutes a modification to the terms of the Lease. Except as expressly modified hereby, the Lease shall remain in full force and effect in accordance with its stated provisions; Landlord and Tenant hereby ratify and reconfirm the terms of the Lease, subject to the terms of this Amendment. 3. Miscellaneous. This Amendment shall be binding upon and inure to the benefit of Landlord and Tenant and their respective successors and permitted assignees, and shall be governed by and construed in accordance with the laws of the State of Colorado. This Amendment may be executed in counterparts, each of which shall constitute an original, and which together shall constitute one and the same instrument. Either party may make legal delivery of its signed counterpart by email or facsimile transmission of a copy thereof. [Balance of page intentionally left blank/ 1007171.1 2 IN WITNESS WHERE, Landlord and Tenant have made this Fourth Amendment to Lease effective as of the date first set forth above. LANDLORD: BURGER AVENUE INVESTMENTS, LLP, a Colorado registered limited liability partnership By: avid L. Osb itlianaging Partner [Tenant's signature blockfollows on next page] IW3434.1 3 TENANT: JD, CARPENTER COMPANIES, INC.; an Iowa corporation B 100]474.1 4 Dave Carpenters President NOTICE OF THIRD EXTENSION OF ENTITLEMENTS PERIOD Landlord, Burger Avenue Investments, LLP, a Colorado registered limited liability partnership, and Tenant, J.D. Carpenter Companies, Inc., entered into a Ground Lease for 3914 Colorado Hwy 119, Longmont, Colorado, dated February 15, 2011 (the "Lease"). Section 2(d) of the Lease provides that if the Development Approvals and Permits are not obtained by 180 days after the execution of the Lease (August 15, 2011, since August 14, 2011, is a Sunday), Tenant shall have the right to extend the Entitlements Period for three (3) successive thirty (30) day periods. The parties executed a Notice of First Extension of Entitlements Period and Amendment to Lease dated as of August 11, 2011 (the "First Amendment"), which implemented the first 30 - day extension of the Entitlements Period, extending it until September 15, 2011. The parties signed a Second. Notice of Extension and Amendment to Lease dated September 15, 2011 (the "Second Amendment") extending the Entitlement Periods to October 17, 2011, Tenant hereby gives Landlord notice that it is extending the Entitlements Period for its third additional thirty (30) days to and including November 16, 2011, Landlord hereby accepts this instrument as such notice. Tenant will pay the third extension fee of $7,500.00 on or before October 17, 2011, Except as modified by the First and Second Amendments, the- Lease shall remain in full force and effect in accordance with its provisions. Initially capitali'ed terms used but not defined herein shall have the meanings given them under the Lease, This instrument may be executed in counterparts, which together shall constitute one and the same instrument. Either party may make legal delivery of its signed counterpart by e-mail or facsimile transmission of a copy thereof. Dated this ► 3 day of October, 2011. LANDLORD, BURGER AVENUE INVESTMENTS, LLP By: di R). -13--q. By: Davin L. Osborn, Date Managing Partner 994131.3 TENANT: J.D. CARPENTER COMPANIE r, JGe+ 77- n4;j, rUr.. 1 /''(f/ 2oi , v e/� of /' , /4, / z 6/1 Date NOTICE OF SECOND EXTENSION OF ENTITLEMENTS PERIOD AND SECOND AMENDMENT TO LEASE Landlord, Burger Avenue Investments, LLP, a Colorado registered limited liability partnership, and Tenant, J.D. Carpenter Companies, Inc., entered into a Ground Lease for 3914 Colorado Hwy 119, Longmont, Colorado, dated February 15, 2011 (the "Lease"). Section 2(d) of the Lease provides that if the Development Approvals and Permits are not obtained by 180 days after the execution of the Lease (August 15, 2011, since August I4, 2011, is a Sunday), Tenant shall have the right to extend the Entitlements Period for three (3) successive thirty (30) day periods, The parties executed a Notice of First Extension of Entitlements Period and Amendment to Lease dated as of August 11, 2011 (the "First Amendment"), which implemented the first 30 -day extension of the Entitlements Period, extending it until September 15, 2011. Tenant hereby gives Landlord notice that it is extending the Entitlements Period for its second additional thirty (30) days to and including October 17, 2011 (October 15, 2011 is a Saturday). Landlord hereby accepts this instrument as such notice. Tenant reserves the right to further extend the Entitlements Period as provided in Section 2(d) of the Lease. Tenant previously deposited with Landlord the sum of $15,000 pursuant to Section 3(i) of the Lease as pre -paid rent. Landlord and Tenant acknowledge that under Section 2(d) of the Lease, the extension fee for this second extension of the Entitlements Period is $7500.00 and is non-refundable subject to the terms of Section 9(a) of the Lease. Landlord and Tenant now further agree that Landlord shall apply $7500.00 of the aforesaid $15,000 payment for this second extension period in satisfaction of the required extension fee, and shall deduct that sum from pre -paid rent, leaving the sum of $0 as pre -paid rent. Should both the Entitlements Condition and Permits Condition be satisfied, within five (5) business days thereafter Tenant will re -deposit the $15,000 prepaid rent, which will be applied to Basic Rent payments next owing. Except as -modified hereby and by the First Amendment, the Lease shall remain in full force and effect in accordance with its provisions. Initially capitalized terms used but not defined herein shall have the meanings given them under the Lease. This agreement may be executed in counterparts, which together shall constitute one and the same instrument. Either party may make legal delivery of its signed counterpart by e-mail or facsimile transmission of a copy thereof. •Dated this 15th day of September, 2011. LANDLORD: BURGER AVENUE INVESTMENTS, LLP J.D. CARPENTER COMPANIE By: David L. Osborn, • Date Managing Partner 997213.2 TENANT: ave Carp President D s // NOTICE OF SECOND EXTENSION OF ENTITLEMENTS PERIOD AND SECOND AMENDMENT TO LEASE Landlord, Burger Avenue Investments, LLP, a Colorado registered limited liability partnership, and Tenant, J.D. Carpenter Companies, Inc., entered into a Ground Lease for 3914 Colorado Hwy 119, Longmont, Colorado, dated February 15, 2011 (the "Lease"). Section 2(d) of the Lease provides that if the Development Approvals and Permits are not obtained by 180 days after the execution of the Lease (August 15, 2011, since August 14, 2011, is a Sunday), Tenant shall have the right to extend the Entitlements Period for three (3) successive thirty (30) day periods. The parties executed a Notice of First Extension of Entitlements Period and Amendment to Lease dated as of August 11, 2011 (the "First Amendment"), which implemented the first 30 -day extension of the Entitlements Period, extending it until September 15, 2011. Tenant hereby gives Landlord notice that it is extending the Entitlements Period for its second additional thirty (30) days to. and including October 17, 2011 (October 15, 2011 is a Saturday). Landlord hereby accepts this instrument as such notice. Tenant reserves the right to further extend the Entitlements Period as provided in Section 2(d) of the Lease. Tenant previously deposited with Landlord the sum of $15,000 pursuant to Section 3(i) of the Lease as pre -paid rent. Landlord and Tenant acknowledge that under Section 2(d) of the Lease, the extension fee for this second extension of the Entitlements Period is $7500.00 and is non-refundable subject to the terms of Section 9(a) of the Lease. Landlord and Tenant now further agree that Landlord shall apply $7500.00 of the aforesaid $15,000 payment for this second 'extension period in satisfaction of the required extension fee, and shall deduct that sum from pre -paid rent, leaving the sum of $0 as pre -paid rent. Should both the Entitlements Condition and Permits Condition be satisfied, within five (5) business days thereafter Tenant will re -deposit the $15,000 prepaid rent, which will be applied to Basic Rent payments next owing. Except as modified hereby and by the First Amendment, the Lease shall remain in full force and effect in accordance with its provisions. Initially capitalized terms used but not defined herein shall have the meanings given them under the Lease. This agreement may be executed in counterparts, which together shall constitute one and the same instrument. Either party may make legal delivery of its signed counterpart by e-mail or facsimile transmission of a copy thereof. Dated this 15th day of September, 2011. LANDLORD: TENANT: BURGER AVENUE INVESTMENTS, LLP J.D. CARPENTER COMPANIES, INC. By: 997215.2 act avid L. Osborn, Managing Partner t By: Date Dave Carpenter, President Date GROUND LEASE FOR 3914 COLORADO HWY 119, LONGMONT, COLORADO THIS GROUND LEASE (this "Lease") is entered into effective as of the k day of February, 2011 (the "Effective Date"), by and between BURGER AVENUE INVESTMENTS, LLP, a Colorado registered limited liability partnership, having an office for the transaction of business at 217 West Olive St., Fort Collins, Colorado 80521 ("Landlord"), and J.D. CARPENTER COMPANIES, INC., an Iowa corporation, having an office for the transaction of business at 4060 NW Urbandale Drive, Urbandale, Iowa 50322 ("Tenant"). WITNESSETH: In consideration of Ten Dollars ($10.00), and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged by Landlord and Tenant, and the mutual covenants contained herein, and intending to be legally bound hereby, Landlord and Tenant hereby agree with each other as follows: Section 1. Demised Premises; Agreement to Lease. Landlord is the owner of certain real property located in unincorporated Weld County, Colorado, having an address of 3914 Colorado Highway 119, Longmont, Colorado, being more and legally described on Exhibit "A" attached hereto and by this reference made a part hereof (the "Demised Premises"). Landlord hereby agrees to lease and demise the Demised Premises to Tenant, and Tenant hereby agrees to lease the Demised Premises from Landlord, in accordance with and subject to the terms and provisions of this Lease. Section 2. Term; Conditions to Commencement. (a) For the period of 60 days after the Effective Date (the "Due Diligence Period"), Tenant will have the right to conduct investigations, testing, inspections and evaluations of any and all matters that may affect the Demised Premises and its development, possession, use and enjoyment, including, without limitation, the environmental condition and other aspects of physical condition. In the event Tenant, in its discretion and at its election, and with or without cause, determines that Tenant is dissatisfied with the Demised Premises or otherwise does not want to proceed with the transaction under this Lease, then Tenant may terminate this Lease on or before the end of the Due Diligence Period (the "Due Diligence Condition") by giving Landlord notice thereof. If such notice is timely given, the parties shall be relieved of all further obligations under this Lease, except for accrued obligations that by their terms survive termination_ (i) Upon the expiration or termination of this Lease, Tenant shall promptly deliver to Landlord (A) all documents and materials relating to the Demised Premises previously delivered to Tenant by Landlord (provided that Tenant at its election may retain its own copies for its files), and (B) copies of all reports and studies originated or received by Tenant during the Due Diligence Period or Entitlements Period (hereinafter defined) concerning the Demised Premises. However, in the event Tenant raises any concerns with Landlord regarding any ostensible environmental conditions affecting the Demised Premises, in connection therewith 964286.7 Tenant shall give Landlord copies of any environmental audits or reports produced on behalf of Tenant that reflect such conditions (and Landlord shall maintain such conditions as confidential without disclosure to other parties, to the fullest extent permitted by law, so long as this Lease remains in effect). (ii) Within five (5) business days after the Effective Date, Landlord shall furnish to Tenant copies of any and all material studies, evaluations, and reports and other materials concerning soils, environmental status, physical condition or other characteristics or matters pertaining to the Demised Premises, and appraisals, plans, specifications or other materials pertaining to the value, development, use and enjoyment of the Demised Premises, to the extent in Landlord's possession. (iii) Tenant shall bear the cost of all of Tenant's inspections, tests, and evaluations of the Demised Premises. Tenant, and Tenant's agents, contractors, and employees, (A) shall not injure or otherwise cause bodily harm to Landlord or Landlord's agents, contractors, or employees, (B) shall promptly pay, when due, the cost of all inspections, tests, and evaluations done with respect to the Demised Premises, (C) in accordance with Section 12 hereof, shall secure the discharge of any liens that attach to the Demised Premises by reason of the exercise of Tenant's rights hereunder, and (D) shall restore the Demised Premises to the condition in which the Demised Premises existed before any such inspections, tests, or evaluations (subject to the effect of the Facilities and Improvements if this Lease proceeds). Tenant shall indemnify and hold Landlord harmless from and against any and all liability, loss, damage, costs, and expenses (including reasonable attorneys' fees, and including payments made by Landlord to release mechanic's liens filed against the Demised Premises) which Landlord may suffer as the result of claims, demands, costs, and/or judgments against Landlord arising out of or in any way in connection with Tenant's inspection activities, unless resulting from Landlord's affirmative actions constituting negligence or other breach of any legal duty, and provided that Tenant will have a first right to defend and satisfy any such claims or demands. Tenant will not, however, be liable for any disturbance of any hazardous materials that may be located on the Demised Premises so long as Tenant exercises reasonable care to avoid such disturbances. Notwithstanding any provision of this Lease to the contrary, no termination of this Lease shall terminate Tenant's obligations pursuant to this Section. The parties hereto expressly acknowledge and agree that while Tenant may elect to terminate this Lease pursuant to this Section 2(a) based on the status of Landlord's title to the Demised Premises (without otherwise limiting the scope of Tenant's termination rights under this Section 2(a)), Landlord's duties and responsibilities with respect to satisfying or curing title defects or Tenant's objections to title are set forth in, and controlled by, Section 26 hereinafter. (b) In addition to the Due Diligence Condition, Tenant shall have the right and condition in its favor during the Entitlements Period (defined below) to obtain all requisite final zoning, subdivision, land use, development, building permit and other approvals from Weld County and any other applicable governmental or quasi -governmental authority (including, without limitation, utility suppliers) for the construction, occupancy, operation, use and enjoyment of the Facilities on the Demised Premises, such approvals to be satisfactory to Tenant (the "Entitlements Condition"). Those requisite approvals ("Development Approvals") will not be regarded as final and having been obtained unless and until any related appeal or referendum rights have expired without any such appeal or referendum having been 964286.7 2 commenced. The Entitlements Period will commence on the Effective Date and expire one hundred eighty (180) days after the Effective Date (unless extended as hereinafter set forth), or any earlier date that all requisite Development Approvals and Permits (hereinafter defined) have been obtained. Tenant, at its election, may terminate this Lease for a failure of the Entitlements Condition by giving Landlord written notice thereof at any time within two (2) business days after the last day of the Entitlements Period. If such notice is timely given, the parties shall be relieved of all further obligations and duties under this Lease arising thereafter, except those accrued obligations and duties that by their terms survive termination. If Tenant in its business judgment determines during the Entitlements Period that the requisite Development Approvals or any Permits will not be obtained, Tenant may give the foregoing termination notice at that time. Provided Landlord does not incur any out-of-pocket expense or liability in connection therewith, Landlord shall be obligated to join in and execute any applications or related documents as required by any applicable authority or as reasonably requested by Tenant in the process of pursuing Development Approvals, provided that in the event such applications irrevocably restrict the Property to Convenience Store Uses, and Tenant then terminates this Lease pursuant to this Section 2(a) or Section 8 below, then Tenant will be obligated at its expense to obtain the vacation or rescission of that restriction. (c) If this Lease is terminated by Tenant for failure of the Entitlements Condition, upon such termination Tenant shall pay Landlord the sum of $3,750.00 for each successive 30 -day period within the Entitlements Period (excluding any extension periods as set forth below) which has passed, in whole or in part, following the end of the Due Diligence Period and prior to the date of the Lease termination. Payments pursuant to this Section 2(c) shall be non-refundable and the property of Landlord (subject, however, to Section 9(a) below). (d) Tenant shall have options to extend the Entitlements Period for three (3) successive 30 -day periods, each of which may be exercised by Tenant giving Landlord notice thereof at any time on or before the last day of the then outstanding Entitlements Period (references herein to the Entitlements Period shall mean the same as it may be so extended). Upon any exercise of the option for each extension, Tenant shall pay Landlord the sum of $7,500.00, which payment will be non-refundable and the property of Landlord regardless of whether the Entitlements Condition is satisfied (subject, however, to Section 9(a) below). Any such Entitlements Period extension payments shall not be credited against Basic Rent. (e) The term of this Lease shall commenceon the fifthbusiness day following the satisfaction of the Entitlements Condition (the "Rent Commencement Date"). (f) The initial term of this Lease shall be for the period that is substantially fifteen (15)years, beginning on the Rent Commencement Date and terminating on the last day of the 18e full calendar month following the Rent Commencement Date, unless sooner terminated or extended as herein provided. So long as Tenant is not in default of any of its obligations under this Lease, Tenant shall have the right, at its option, to extend the term of this Lease for four (4) additional, consecutive periods of five (5) years each, at the Rent (as hereinafter defined) and upon all of the other terms, conditions, covenants and provisions set forth herein; provided, however, that Tenant may only extend the term of this Lease by giving Landlord written notice of each such extension on or prior to a date which is six (6) months before the expiration of the initial term of this Lease or the then outstanding extension period, 964266.7 3 as the case may be. The expression "term of this Lease" or similar references as hereinafter used shall mean and refer to the initial term of this Lease and any extensions thereof that have been exercised by Tenant, as the context may permit or require. The term "lease year" shall mean calendar years within the term of this Lease, with the first lease year to mean the fractional calendar year running from the Rent Commencement Date through December 31 of that year, and the last lease year to mean the fractional calendar year running from January 1 through the last day of the term of this Lease. (g) The Due Diligence Condition and Entitlements Condition shall be cumulative with and not limit the "Permits Condition" established under Section 8 below. Section 3. Rent. (a) Tenant covenants and agrees to pay Landlord for the Demised Premises, without offset or deduction (except as set forth in Section 27(d) below), and without previous demand therefor, Basic Rent at the rates hereinafter set forth from the Rent Commencement Date and thereafter throughout the term of this Lease ("Basic Rent"). All Basic Rent shall be payable by Tenant in equal monthly installments on the first day of each and every calendar month. The Basic Rent payable each month during the term of this Lease (with the initial fractional calendar month to be allocated to Year 1) shall be as follows: Initial Term Years 1-5 Years 6-10 Years 11-15 Extended Term (as applicable) Years 16-20 Years 21-25 Years 26-30 Years 31-35 Monthly Basic Rent $7,500.00 $8,250.00 $9,075.00 Monthly Basic Rent $9,982.00 $10,980.00 $12,078.00 $13,286.00 For purposes of applying the Basic Rent to the "Years" referenced above, the first such Year will commence on the Rent Commencement Date and expire one year after the last day of the calendar month in which the Rent Commencement Date falls, and each succeeding Year will expire one year after the last day of the preceding Year. (b) As used herein, the term "Additional Rent" shall mean -amounts required to be paid by Tenant under the terms of this Lease other than Basic Rent or Percentage Rent (hereinafter defined). The term "Rent" shall be deemed to include the Basic Rent, Percentage Rent and all Additional Rent payable by Tenant to Landlord hereunder. (c) "Retail merchandise sales" is defined as the receipts received by Tenant from sales of Tenant's inventory (physical goods or products held for resale) in the ordinary course 964286.7 4 of Tenant's business conducted on the Demised Premises, whether for cash or credit, but specifically excluding and net of (i) gasoline sales, (ii) revenues from car wash, lottery sales, sales of gift certificates, issuances of money orders, or other services or functions not entailing sales of Tenant's inventory, (iii) revenues of any subtenants, licensees or concessionaires of Tenant, each occupying only a portion of the Demised Premises (provided that any subrents or license or concession charges collected by Tenant from such parties will be included in retail merchandise sales), (iv) merchandise or inventory returned to suppliers or manufacturers, (v) sales or similar taxes that Tenant collects from retail sales for remittance to or for the benefit of any governmental authority, (vi) any refunds on returned merchandise or inventory, and (viii) any sales of fixtures, equipment, supplies or goods in the Demised Premises that do not constitute part of Tenant's inventory. (d) In addition to the Basic Rent, Tenant will pay Landlord "Percentage Rent" equal to 3.5% of the excess, if any, during any lease year of (i) Tenant's retail merchandise sales in the Demised Premises over (ii) the amount of $1,650,000.00, which amount will be subject to 10% compounded increases at the end of every five-year period within the term of this Lease (the "Breakpoint"). For any fractional lease year within the term of this Lease, the applicable Breakpoint amount will be prorated on a per diem basis. (e) Tenant shall keep and maintain full, complete and accurate records of all retail merchandise sales, as defined in this Lease, together with supporting records that are generated by Tenant in the ordinary course of business and as required by law, which may include excise tax reports, state sales tax reports, gross income tax reports, and cash register tapes. The records shall be kept in accordance with Tenant's accounting practices employed in the ordinary course of Tenant's business, and the records for a given lease year shall be preserved by Tenant for a period of three (3) years after the close of the lease year. These records shall be made available to Landlord, or a representative of Landlord, on reasonable notice at the office of Tenant in the State of Colorado, or if Tenant has no office in the State of Colorado, at the Demised Premises. (i) On or before the 20th day after written request from Landlord, Tenant shall deliver to Landlord, at the place then fixed for the payment of Rent, a written statement, signed and certified by Tenant to be accurate, of retail merchandise sales made during the calendar month preceding the giving of the notice and a true copy of any corresponding sales tax report covering that .same. calendar ..month and . filed by . Tenant with . any . governmental . agencies, ..as required by law, prior to Tenant's delivery. (Landlord specifically acknowledges that sales tax reports may vary from the statements and accountings of retail merchandise sales, because of the disparate inclusions in each.) In addition thereto, within ninety (90) days of the close of each lease year during the term of this Lease, Tenant shall deliver to Landlord a statement certified by Tenant, showing retail merchandise sales made during the preceding lease year and a calculation of the amount of Percentage Rent due Landlord (the "Annual Statement"). (ii) Tenant shall pay to Landlord, simultaneously with the delivery of the annual statement, any amount that may be due and payable as Percentage Rent for the prior lease year. Landlord, through a certified public accountant engaged by Landlord, shall have the right on reasonable notice to Tenant to examine all pertinent books and records of Tenant for the purpose of verifying the actual amount of retail merchandise sales as defined in this Lease for the 964286.7 5 pertinent lease year. The results of the examination and audit shall be certified as accurate to Landlord and Tenant by Landlord's certified public accountant. All expenses of examination shall be paid for by Landlord, unless the examination shall disclose an additional unpaid Percentage Rent liability for the pertinent lease year of greater than $1,000.00, in which case Landlord's out-of-pocket costs of the examination shall be paid by Tenant (such additional liability will be subject, however, to verification and confirmation between Landlord and Tenant). (iii) Landlord shall have the right to accept and apply on account any amount tendered by Tenant as payment in full of all or any portion of the Percentage Rent without prejudicing Landlord's right to recover the full correct amount, after reduction by the amount so accepted and applied on account. Tenant waives the right to insist on any condition of any such tender that it be accepted in full, if at all. (iv) If Landlord's audit or examination of the records of Tenant reveals Tenant has not paid the proper amount of Percentage Rent, any increase of Percentage Rent resulting from the audit shall be paid by Tenant within 30 days after Tenant has received a copy of the audit or examination (such increase will be subject, however, to verification and confirmation between Landlord and Tenant). (v) If Tenant fails to prepare and deliver any monthly statement or Annual Statement required by this Section 3(e) within the time specified, Landlord may elect to treat Tenant's failure as a substantial breach of this Lease, and Landlord shall be entitled to exercise its remedies hereunder after Landlord has given to Tenant 30 days' written notice to submit such statement. If Tenant fails to prepare and deliver the statement after receiving the notice from Landlord, Landlord may elect to make an audit of all the books and records of Tenant, including Tenant's bank account, which in any way pertain to or show retail merchandise sales as defined by this Lease, and to prepare the statement or statements that Tenant has failed to prepare and deliver. (vi) Any such audit shall be made and any such statement and statements shall be prepared by a certified public accountant selected by Landlord. The statement or statements so prepared shall be conclusive on Tenant, provided they are prepared in good faith and certified to Tenant by Landlord's certified public accountant, and Tenant shall be required to pay all expenses.. of .any such audit Nevertheless, if Tenant's_ failure to deliver any monthly or annual statement is due to the partial or total destruction of the books or records of Tenant by fire or other cause beyond the control of Tenant, Tenant shall have a reasonable time after destruction to assemble the information necessary to prepare any statement or statements and deliver them to Landlord. (f) In the event that Rent commences hereunder on other than the first day of a calendar month, or if the last day of the term of this Lease is other than the last day of a calendar month, the Rent due hereunder for the first and/or last partial month, as the case may be, shall be prorated on a daily basis. (g) this Lease. No security deposit shall be required to be paid by Tenant in connection with 964286.7 6 (i) On the mutual execution of this Lease, Tenant shall deposit with Landlord $15,000.00 as prepaid rent. If Tenant terminates this Lease pursuant to the Due Diligence Condition, the Entitlements Condition or the Permits Condition, then the $15,000.00, less any obligations due from Tenant to Landlord pursuant to Section 2(c), shall be promptly returned to Tenant. If this Lease is not so terminated, and the term of this Lease commences, the $15,000.00 shall be fully applied to Tenant's Basic Rent obligations hereunder. By his execution of this Lease on behalf of Landlord, David L. Osborn, a practicing attorney and in his individual capacity, agrees that he will be responsible to hold and account for the $15,000 deposit or portions thereof that remain subject to return to Tenant under the foregoing provisions from time to time. Section 4. Place of Payment. All amounts payable under Section 3 of this Lease, as well as all other amounts payable by Tenant to Landlord under the terms of this Lease, shall be paid at the office of Landlord. set forth above, or at 'such other place as Landlord may from time to time designate by at least ten (10) business days' prior written notice to Tenant, in lawful money of the United States which shall be legal tender for the payment of all debts and dues, public and private, at the time of payment. Section 5. Rent to be Net to Landlord. It is the intent of the parties that the Rent provided in this Lease will be a net payment to Landlord and that, except as expressly provided in this Lease, Landlord will not be required to pay any costs or expenses accruing during the term of this Lease or provide any services in connection with the Demised Premises during the term of this Lease, and Tenant will bear all costs and expenses relating to the Demised Premises accruing during the term of this Lease. Accordingly, except for those expenses and obligations which Landlord has expressly agreed to bear pursuant to this Lease, Tenant covenants and agrees to pay, in addition to Basic Rent and the Percentage Rent, as Additional Rent all costs and expenses relating to the Demised Premises which accrue during or are allocable to the term of this Lease, including, without limitation: (a) real and personal property taxes and assessments as hereinafter provided; (b) insurance premiums for coverage required of Tenant hereunder; (c) utility charges; and (d) the costs and expenses of maintaining and repairing the Improvements (as defined in Section 9(e) herein) and ground (landscaping, paving, etc.). In connection with any Additional Rent items accrued from time to time for which a specific due date is not established under the other provisions hereof, such items shall be due and payable by Tenant within ten (10) days after notice of demand from Landlord. All costs, expenses and liabilities associated with the Demised Premises that arise or accrue prior to the commencement of the term of this Lease shall be borne solely by the Landlord, and the Tenant will not have any obligation therefor (the foregoing being subject to and without limitation, however, on Tenant's obligations under Section 2(a)(iii) above). Section 6. Use of Demised Premises. (a) Tenant shall initially develop the Demised Premises as a multi -purpose retail convenience store facility incorporating a retail gasoline sales center and car wash (the "Convenience Store Uses"). The Convenience Store Uses may at Tenant's election further include a "fast food" or other form of restaurant operation and/or other uses associated with convenience store operations from time to time, as determined by Tenant in its ordinary business judgment, and if zoning so allows. The Demised Premises may otherwise be used for 964266.7 7 any other lawful uses or purposes, provided that alternative uses will be subject to the prior approval of Landlord, not to be unreasonably withheld. Tenant covenants and agrees that within thirty (30) days after the issuance of a certificate of occupancy and all requisite Permits (as hereinafter set forth), Tenant will commence its business operations upon the Demised Premises and continue such operations thereafter at all times (subject to the other provisions hereof) pursuant to operating standards that are materially consistent with "best of class" for convenience store retail operators in the Front Range area of Northern Colorado (the "Convenience Store Standard"). If uses other than Convenience Store Uses are permitted under this Section 6(a), such uses shall not be subject to the Convenience Store Standard. (b) Tenant shall, from and after commencement of operations, conduct and carry on Tenant's business in the Demised Premises during the usual business hours of each and every business day as is customary for businesses of like character in the area in which the Demised Premises are located, as determined by Tenant in its ordinary business judgment applied consistently with the Convenience Store Standard (as applicable); provided, however, that this provision shall not apply if the Demised Premises should be closed and the business of Tenant temporarily discontinued therein on account of strikes, lockouts or similar causes beyond the control of Tenant, any casualty or condemnation, alterations of the Improvements pursuant to Section 10 below, Force Majeure (as set forth in Section 45 below), or other causes as otherwise provided herein ("Excused Closures"). Tenant shall keep the Demised Premises adequately stocked with products and/or merchandise, and with sufficient personnel to care for the patronage, and to conduct said business in accordance with sound business practices, as determined by Tenant in its ordinary business judgment applied consistently with the Convenience Store Standard (as applicable). (c) In the event of default by Tenant of any of the conditions contained in Section 6(b), Landlord shall have, in addition to any and all remedies herein provided, the right at its option to collect not only the Rent herein provided, but supplemental rent at the rate of One Percent (1%) of the monthly Basic Rent herein provided for each and every day that Tenant shall fail to conduct its business in accordance with the provisions hereof; such supplemental rent shall be deemed to be liquidated damages for Tenant's failure to conduct its business as herein provided. Tenant agrees that such liquidated damages are a reasonable estimate of damages, enforceable in accordance with the terms of this Section 6(c), and that such do not constitute a penalty. If Tenant ceases business operations for more than thirty (30) consecutive days (other than as a result of Excused Closures), Landlord shall have the right (by providing Tenant with thirty (30) days written notice thereof (the "Recapture Notice")) to "recapture" the Demised Premises. In the event Tenant does not resume its business operations within the 30 -day period after the giving of the Recapture Notice, then this Lease will terminate upon the expiration of that 30 -day period, and thereupon the parties shall be relieved from all further obligations and duties hereunder, with the exception of those that have accrued prior to such termination. (d) Tenant accepts the Demised Premises in their "As Is Where Is" condition. 964286.7 8 Section 7. Tax Expenses. (a) Tenant shall, during the term of this Lease, as Additional Rent, pay and discharge punctually, as and when the same shall become due and payable, all taxes and other governmental impositions and charges of every kind and nature whatsoever, extraordinary as well as ordinary, which accrue from and after the Rent Commencement Date during the term of this Lease and which shall or may be charged, levied, laid, assessed, imposed, become due and payable, or liens upon or for or with respect to the Demised Premises or any part thereof, or any buildings, appurtenances or equipment owned by Tenant thereon or therein or any part thereof, together with all interest and penalties thereon incurred as a result of Tenant's failure to timely pay any bill received by Tenant prior to its due date (if Tenant is responsible therefor), under or by virtue of all present or future laws, ordinances, requirements, orders, directives, rules or regulations of the federal, state and county governments and of all other governmental authorities whatsoever with jurisdiction for the taxation of real property (all of the foregoing being hereinafter referred to as "Taxes"). The annual Colorado ad valorem property taxes allocable to the term shall be those for each lease year, payable the following year. Landlord specifically acknowledges and agrees that the Taxes shall not include, and Tenant shall not be obligated to pay, as Additional Rent or otherwise, any local, state or federal income, franchise, inheritance or estate tax of Landlord or any of its principals, or any tax imposed, levied or assessed with respect to or because of the income, appreciation or other benefit derived by Landlord or any of its principals from or by virtue of the Rent or this Lease or the estate of Landlord under this Lease, whether arising under present or future applicable laws and regulations. However, and notwithstanding anything to the contrary contained herein, in the event any future laws ever impose any "rent" tax on Rents as a gross income or revenue source that is specifically allocated to and binding upon tenants or lessees (a "Tenant Rent Tax"), then such Tenant Rent Tax applicable to the Rent hereunder will be paid by the Tenant. Landlord further acknowledges and agrees that any Taxes, assessments and other governmental impositions or levies of any nature accruing during or attributable to any period prior to the Rent Commencement Date shall be the sole obligation of and paid in full by Landlord. In addition to Tenant's obligation to pay the Taxes, Tenant shall be liable for and shall pay (i) all taxes levied against Tenant's personal property, furnishings, equipment, trade fixtures and all other personal property in the Demised Premises during the term of this Lease, and (ii) all taxes, including, without limitation, sales taxes, worker's compensation, general license, or franchise taxes and Tenant Rent Taxes, if any, which may be required for, or applicable to, the conduct of Tenant's business (provided that Tenant may contest any such taxes in good faith). (b) Tenant shall be deemed to have complied with the covenants of this Section 7 if payment of such Taxes shall have been made within any period allowed either by law or by the governmental authority imposing the same during which payment is permitted without penalty or interest, and Tenant shall produce and exhibit to Landlord satisfactory evidence of such payment, if Landlord shall demand the same in writing. (c) All such Taxes which shall become payable for each of the calendar years in which the term of this Lease commences and terminates shall be apportioned pro -rata between Landlord and Tenant in accordance with the respective portions of such years during which such term shall be in effect. Landlord shall immediately remit to Tenant any bills for Taxes that Landlord receives. In the event any of said Taxes are payable in installments, Tenant may pay 964286.7 9 the same as such installments become due and payable. Any special assessments for public improvements shall be actually paid or deemed, for purposes of this Lease, to be payable in installments over the longest period and otherwise based on the most favorable terms permitted by law, with the Taxes to include the portions thereof accruing during the term; if any special assessments actually become payable on less favorable terms, Landlord shall pay the special assessments directly, and Tenant will then reimburse the special assessments to Landlord based on the deemed payment terms. (d) Tenant or its designees shall have the right to contest or review all such Taxes by legal proceedings, or in such other manner as it may deem suitable (which, if instituted, Tenant or its designees shall conduct promptly at its own cost and expense and free of any out-of- pocket expense to Landlord, and, if necessary, in the name of and with the cooperation of Landlord and Landlord shall execute all documents necessary to accomplish the foregoing). Notwithstanding the foregoing, Tenant shall promptly pay all such Taxes if at any time the Demised Premises or any part thereof shall then be immediately subject to forfeiture, or if Landlord shall be subject to any criminal liability arising out of the non-payment thereof. Tenant will indemnify and hold Landlord harmless from and against any claims, costs, losses and the like arising out of or in connection with any tax contest by Tenant. If Tenant fails to initiate or prosecute such proceedings, Landlord may take such action at Landlord's cost, and subject to the same obligations and requirements as are applicable to Tenant under the foregoing provisions for any such proceedings undertaken by Tenant. Section 8. Conditions to Tenant's Obligations. The obligations of Tenant under this Lease shall also be expressly subject to and conditioned upon the receipt by Tenant of all necessary business licenses and permits or other governmental authorizations (collectively, the "Permits") necessary for the operation of the Convenience Store Uses (the "Permits Condition"). The requisite Permits will include, without limitation, all signage, health, sales tax, alcoholic beverage sales and other licenses, permits and approvals deemed necessary by Tenant in connection with Tenant's intended operation of the Demised Premises for the Convenience Store Uses. Tenant agrees to complete and submit applications for all such Permits within thirty (30) days after receipt of all Development Approvals requisite to commencing construction of the Improvements, or at any later time mandated by Weld County or commonly applicable under business practices prevailing in Weld County, and to thereafter use diligent efforts, by Tenant's exercise of its ordinary business judgment, to obtain such Permits in an expeditious manner. Notwithstanding the foregoing, Tenant at its election may terminate this Lease upon . written notice to Landlord in the event Tenant has not received all of its Permits within the Entitlements Period, as it may be extended under Section 2(d) above; provided, however, Tenant must do so by written notice to Landlord within two (2) business days after the last day of the Entitlements Period or any extension thereof. Upon any such termination of this Lease, any applicable Rents will be apportioned to the date such termination notice is given, and the parties will be released from all further obligations and duties under this Lease thereafter arising. Section 9. Construction of Improvements. (a) Tenant, at its sole expense, shall construct the Facilities and any other Improvements. All Facilities and Improvements shall be constructed by Tenant in compliance 964266.7 10 with all then applicable building codes and ordinances and in material conformity with the final Concept Plans approved pursuant to the following provisions. (i) A schematic site plan and conceptual elevations for the Facilities (the "Concept Plans") shall be subject to Landlord's approval, which approval shall not be unreasonably withheld or conditioned. Landlord's approval will be deemed given unless Landlord gives Tenant written notice disapproving the Concept Plans within the Plan Review Period (defined below). If Landlord disapproves of the Concept Plans, Landlord shall provide Tenant in writing the specific reasons for such disapproval. The parties shall then work together to thereafter agree in writing on the Concept Plans. Any material change to Concept Plans approved by Landlord shall require Landlord's prior written approval, which approval shall not be unreasonably withheld or conditioned. Landlord agrees to respond to any request for approval of material changes in the Concept Plans (with reasons for any disapproval to be specified in writing) within the Plan Review Period, and if Landlord fails to respond to any request by Tenant for such approval within the Plan Review Period, such changes shall be deemed to be approved by Landlord; further provided, however, if such material changes are required by the applicable governmental authority in order for Tenant to receive its Development Approvals or Permits, Landlord's approval of such material changes shall not be required. (ii) In any case where Landlord has validly objected to the Concept Plans, as initially presented or modified, then Tenant may give notice under Section 2(a)(ii) above terminating this Lease for a failure of the Entitlements Condition if Tenant determines that the parties will not be able to reach agreement resolving Landlord's objections. If the Lease is so terminated for a failure of Landlord's required approval of the Concept Plans, then the termination payments under Section 2(c) will not be owing, and any extension payments theretofore made under Section 2(d) will be refunded to Tenant. Prior to the commencement of construction of the initial Facilities, Tenant shall demonstrate to Landlord, by presenting bank statement(s) or other evidence, that Tenant then has cash resources available at least equal to 110% of Tenant's budgeted construction costs for the initial Facilities. The "Plan Review Period" shall mean the period of five (5) business days after Landlord's receipt of the proposed Concept Plans or material changes thereto, as the case may be, provided that if upon receipt, David Osborn (a principal of Landlord) is traveling and temporarily away from his offices for business or personal reasons, then the Plan Review Period shall be ten (10) business days after such receipt by Landlord. (b) Tenant shall diligently work to complete the Facilities within six (6) months after the Rent Commencement Date, subject to delays caused by Force Majeure events. In connection with construction, Force Majeure events will specifically include, without limitation, any failure of governmental authorities to issue any remaining Development Approvals or Permits requisite to construction or completion; the discovery of conditions on or in the Demised Premises that obstruct or impede construction (e.g., adverse soils conditions, environmental contamination, or legally protected species habitat or burial sites); or any failure of performance by any architects, engineers, general contractors, or other contractors, subcontractors, suppliers or materialmen engaged by, through or under Tenant. (c) Tenant shall construct the initial Facilities from its own equity resources. Tenant represents to Landlord that Tenant's financial statements and information heretofore provided 964286.7 11 by Tenant to Landlord are accurate and complete in all material respects and fairly present the financial condition of Tenant as of the dates thereof and for the periods covered thereby, as applicable. (d) Not later than ten (10) days prior to the commencement of construction of the Facilities, Tenant shall provide Landlord with the name of Tenant's general contractor, and allow Landlord to post the Demised Premises for non -liability for mechanic's liens in compliance with Colorado law. During construction, Tenant shall allow Landlord to keep such non -liability notice conspicuously posted. Tenant shall not seek any mortgage fmancing for its Improvements until the initial Facilities are completed or a Certificate of Occupancy has been issued by Weld County. If Landlord ever intends, in good faith, to either sell or mortgage the Demised Premises to or with a third -party purchaser or mortgagee, Tenant agrees, within ten (10) business days after a demand notice from Landlord, to furnish Landlord with such financial statements of Tenant that Landlord may specify in reasonable detail and that have been prepared by or on behalf of Tenant for the two (2) years preceding (provided that Tenant shall not be required to furnish financial statements in any case where the proposed purchaser or mortgagee is a business competitor of Tenant, as reasonably determined by Tenant). Landlord agrees to keep such information confidential, and share it only in relation to the proposed transaction with its accountants, attorneys, banks, and the prospective third party purchaser or mortgagee, as applicable, of the Demised Premises, whom Landlord shall also bind to confidentiality and not suffer them to make further disclosures of such information to any other party. Following completion of the construction of the initial Facilities, Tenant shall furnish Landlord with copies of final mechanics' lien releases that Tenant's general contractor submits to Tenant. (e) The improvements to be initially constructed by Tenant on the Demised Premises will be constituted by a building containing approximately 4,500 square feet, together with gasoline tanks, lines, and dispensers comprising the gasoline retail sales center (the "Gasoline Facilities"), identity and other signage, and site improvements and other facilities serving or associated with the permitted uses for the Demised Premises (the initial improvements and facilities developed by Tenant being sometimes referred to herein as the "Facilities"). The parties specifically acknowledge that there are existing building and site improvements on the Demised Premises, and that in connection with the development of the initial Facilities, Tenant at its election may either (i) preserve, in whole or in part, and alter and remodel those existing improvements, or (ii) demolish those existing improvements (only after first obtaining all Development Approvals) and proceed with the Facilities as a whole new development; Tenant may pursue Development Approvals accordingly depending on the election that Tenant makes. The Facilities and other improvements located from time to time on the Demised Premises are sometimes referred to herein as the "Improvements." Section 10. Repairs and Alterations to Improvements. (a) Tenant shall, at all times during the term of this Lease, and at its own cost and expense, keep and maintain or cause to be kept or maintained all buildings and improvements at any time erected on the Demised Premises in a good condition and repair, ordinary wear and tear excepted, that is materially consistent with the Convenience Store Standard as applicable. Unless expressly provided herein, Landlord shall not be required to furnish any services or 964286.7 12 facilities or to make any improvements, repairs or alterations in or to the Demised Premises during the term of this Lease. (b) Tenant may, at its own cost and expense, at any time and from time to time, alter, add to, change, demolish, remove and replace any of the buildings and improvements on the Demised Premises as Tenant may deem desirable, provided that (i) any such demolition, alterations, changes, additions or replacements shall be in compliance with all applicable building codes and ordinances, (ii) any such alterations, changes or additions that do not require Landlord's approval hereunder shall not materially and substantially reduce the value of the exterior Improvements constructed by Tenant, and (iii) in the event of any such demolition or removal of all or substantially all of the Improvements on the Demised Premises (and not due to a casualty or condemnation), Tenant shall provide Landlord with adequate security (reasonably covering projected replacement costs) for the subsequent replacement prior to demolition of the existing Improvements. The same shall be replaced with improvements of at least equal value to the Improvements so demolished or removed. Any alterations or improvements after Tenant's initial construction of the Demised Premises shall require Landlord's prior written approval (which approval shall not be unreasonably withheld, conditioned or delayed) if such alterations or improvements (x) are to the exterior of Tenant's building and in any one instance entail a cost exceeding $100,000.00, or (y) would affect the structural integrity of Tenant's building (except for structural changes involved in an expansion), or entail the demolition of the building. Any alterations or improvements that do not satisfy the criteria set forth above shall not be subject to Landlord's prior approval. The foregoing threshold amount of $100,000.00 shall be increased as and when the Basic Rent increases hereunder, and on the same basis (i.e., 10% compounded increases every five (5) years). The foregoing provisions of this Section 10(b) shall not, however, apply to or limit any maintenance, repairs, replacements or work in the ordinary course of Tenant's business for purposes of keeping or bringing the Improvements into good condition and repair, or of complying with applicable laws and regulations. Section 11. Ownership of Improvements. (a) Until the expiration or sooner termination of this Lease, title to any building or buildings or improvements situate or erected on or under the Demised Premises, the building equipment, the Gasoline Facilities and equipment and other items installed therein and thereon, and any alteration, change or addition thereto shall remain solely in Tenant; and Tenant alone shall beentitled to deduct all depreciation. on .Tenant'sincome. tax returns .for. anysuch building or buildings, building equipment, Gasoline Facilities and equipment and/or other items, improvements, additions, changes or alterations (and such depreciation and other non -cash expenses shall not constitute any form of Additional Rent payable by Tenant). Upon the expiration or sooner termination of the term of this Lease, title to the Facilities and Improvements, including all buildings, improvements, Gasoline Facilities (except as hereinafter provided), equipment and fixtures (except for Tenant's personal property and trade fixtures as more fully discussed below) situate or erected on or under the Demised Premises shall vest in and become the full and absolute property of Landlord Tenant free and clear of all liens of any leasehold interests and without any compensation to Tenant. (b) Upon the expiration or sooner termination of the term of this Lease, Tenant shall quit and surrender to Landlord the Demised Premises, including the Improvements, Gasoline 964286.7 13 Facilities, and all other buildings, improvements and fixtures then located thereon; provided, however, Tenant shall be permitted to remove Tenant's personal property and trade fixtures (which shall be and remain Tenant's property) within three (3) business days after surrender, and shall repair any damage to the Demised Premises and the Improvements caused by such removal. It is expressly agreed that the gas dispensers incorporated within the Gasoline Facilities constitute part of Tenant's trade fixtures and may at Tenant's election be removed and retained as Tenant's property. Upon Tenant's surrender of the Demised Premises, Tenant shall deliver possession of the Demised Premises in broom clean and safe condition, ordinary wear and tear, and damage caused by Landlord excepted. Tenant shall deliver to Landlord all keys to the Demised Premises within three (3) business days after Tenant's surrender of the Demised Premises. Notwithstanding anything to the contrary contained herein, Landlord shall have the right, in Landlord's sole discretion, to require that Tenant remove all Gasoline Facilities, so long as written notice of such election is given to Tenant not later than sixty (60) days after the expiration or sooner termination of the term of this Lease; provided, however, that if Landlord gives such notice after the expiration or termination of this Lease, Tenant shall not have the removal obligation if the Gasoline Facilities have been operated to any extent by Landlord or any party. This condition prohibiting such operations by Landlord or another party shall not apply, however, to minor testing of the Gasoline Facilities by Landlord to ascertain whether they are operable and in a condition that conforms with applicable laws, so long as (i) Landlord gives Tenant at least five (5) business days' prior notice of the testing so Tenant or its representative(s) may be present, and (ii) Landlord confers reasonably with Tenant on the scope and nature of the testing and implements the testing accordingly. Minor testing conducted in accordance with the foregoing will not impair Landlord's election to require removal of the Gasoline Facilities. If Landlord so elects, Tenant shall remove all Gasoline Facilities in strict compliance with applicable laws upon the expiration or termination of this Lease and provide Landlord with all appropriate documentation in accordance with existing laws and regulations. (c) Tenant shall also, upon expiration or earlier termination of this Lease, and at Tenant's sole expense, comply with all requirements of the appropriate governmental authorities regarding any conditions resulting from Tenant's operation of the Gasoline Facilities, except to the extent such requirements are for removal of the Gasoline Facilities and removal is not required under the foregoing provisions ("Tenant Remedial Measures"). Landlord agrees to permit Tenant, its employees, agents, consultants, and contractors, to enter onto the Demised Premises after expiration or termination of this Lease to the extent necessary to satisfy Tenant's obligations under this Section 11(c) or Section 11(b) above. Upon conclusion of the Tenant Remedial Measures, to the extent affected by the performance of the Tenant Remedial Measures, Tenant shall restore the Demised Premises to the condition substantially similar to that condition existing prior to the performance of the Tenant Remedial Measures, including, but not limited to, the refilling of any excavation performed in the course of the Tenant Remedial Measures. Section 12. Mechanic's and Materialmen's Liens. Tenant shall have no right, authority or power to bind Landlord or any interest of Landlord in the Demised Premises for any claim for labor or for material or for any other charge or expense incurred in constructing any Improvements or performing any alteration, renovation, repair, refurbishment or other work with regard thereto, nor to render Landlord's interest in the Demised Premises liable for any lien or right of lien for any labor, materials or other charge or expense incurred in connection therewith. 969286.7 14 Tenant shall not be considered the agent of Landlord in the construction, erection or operation of any Improvements. If any liens or claims for labor or materials supplied or claimed to have been supplied to the Demised Premises by, through or under Tenant are filed, Tenant shall diligently pursue the release or discharge thereof. Landlord may request that Tenant cause such lien(s) to be released or properly bonded within sixty (60) days after Tenant's receipt of written request therefor. In the event that Tenant has not secured a release of such lien(s) or has not posted an appropriate bond to release such lien(s) within such sixty (60) -day period, then Landlord shall be entitled to post a bond to release such lien(s) and the actual out-of-pocket costs incurred by Landlord in connection therewith shall be deemed as Additional Rent and payable to Landlord upon thirty (30) days' prior written notice. Section 13. Requirements of Public Authority. (a) During the term of this Lease, Tenant shall, at its own cost and expense, promptly observe and comply with all present and future laws, ordinances, requirements, orders, directives, rules and regulations of the federal, state, and county governments and of all other governmental authorities affecting Tenant's use and occupation of the Demised Premises or appurtenances thereto or any part thereof, whether the same are in force at the Rent Commencement Date or may in the future be passed, enacted or directed, and Tenant shall pay all costs, expenses, liabilities, losses, damages, fmes, penalties, claims and demands that may in any manner arise out of or be imposed because of the failure of Tenant to comply with the covenants of this Section 13. (b) Tenant shall have the right to contest by appropriate legal proceedings diligently conducted in good faith, in the name of Tenant or Landlord (as legally required), or both (if legally required), without out-of-pocket cost or expense to Landlord, the validity or application of any law, ordinance, rule, regulation or requirement of the nature referred to in Section 13(a) above, and if compliance therewith may legally be delayed pending the prosecution of any such proceeding, Tenant may delay such compliance therewith until the final determination of such proceeding. (c) In Landlord's reasonable discretion and after Tenant's prior written request, Landlord may agree to execute and deliver any appropriate papers or other instruments which may be necessary or proper to permit Tenant so to contest the validity or application of any such law,.. ordinance, order, directive, rule, regulation or requirementand to fully cooperate. With Tenant in such contest. It is agreed to by the parties hereto that it shall be reasonable for Landlord to refuse to execute and deliver any papers or other instruments necessary to assist Tenant in accordance with this Section 13 if Landlord determines, in its reasonable discretion, that doing so would not be in the best interests of Landlord's rights and interests in the Demised Premises. Section 14. Hazardous Materials. In connection with the Gasoline Facilities, Tenant shall take all measures available to Tenant during the term of this Lease for purposes of being eligible for compensation from the Colorado petroleum storage tank fund established pursuant to C.R.S. § 8-20.5-101, et seq. (the "Tank Fund Statute") in the event of any release of gasoline from the Gasoline Facilities prior to the expiration or termination of' this Lease. (A "release" is defined by the Tank Fund Statute to include any spilling, leaking, emitting, discharging, 964286.7 15 escaping, leaching or disposing of a regulated substance from an underground storage tank, and regulated substances are defined to include petroleum.) With respect to any such release, Tenant agrees, at its expense, to comply with all requirements of the appropriate governmental authorities. Tenant shall indemnify Landlord against any claims, causes of action, liabilities, or damages incurred or suffered by Landlord in connection with any such release from the Gasoline Facilities occurring prior to the expiration or termination of this Lease, or any removal and disposal by Tenant of the Gasoline Facilities in connection with such expiration or termination, together with all costs and expenses, including reasonable attorneys' fees, incurred by Landlord in connection therewith. Notwithstanding any provision of this Lease to the contrary, no termination of this Lease shall terminate Tenant's obligations and responsibilities pursuant to this Section 14 accruing prior to the termination. Conversely, to the extent any Gasoline Facilities are left in place following the expiration or termination of this Lease pursuant to Section 11, then Landlord shall be responsible for any release occurring thereafter with respect to those remaining Gasoline Facilities, and shall defend and indemnify Tenant and save Tenant harmless from and against any claims, causes of action, liabilities or damages, together with related costs and expenses, including reasonable attorneys' fees, that Tenant may suffer or incur in connection with any such release for which Landlord is responsible. In that regard, upon the expiration or termination of this Lease, Landlord shall make such applications and submissions to the State of Colorado as may be necessary or appropriate to have Landlord replace Tenant in all respects as the registered party under Colorado law with respect to the Gasoline Facilities that remain on the Demised Premises, and specifically, without limitation, any underground storage tanks constituting part of the Gasoline Facilities. Tenant may conduct environmental audits during the Due Diligence Period and proximate to the end of the term of this Lease in order to establish a baseline record of existing conditions at each juncture. Tenant shall promptly provide copies of any such environmental audits to Landlord in accordance with Section 2(a)(i) above. Section 15. Access to Demised Premises: (a) Landlord or Landlord's agents and designees shall have the right, but not the obligation, to enter upon the Demised Premises at all reasonable times after reasonable notice to Tenant to examine same and to exhibit the Demised Premises to prospective purchasers and prospective tenants, but in the latter case only during the last three (3) months of the term of this Lease or any extension thereof. Notwithstanding anything contained in the foregoing sentence to the contrary, Landlord shall have the right to market the Demised Premises to prospective purchasers and prospective tenants during any time Tenant is in default under this Lease (subject to Tenant's interests under this Lease so long as they remain in effect). In connection with any such entry, Landlord will not cause or suffer any interference with the conduct of Tenant's business on or use or enjoyment of the Demised Premises. (b) Landlord, Landlord's agents, employees, contractors and designated representatives, and the holders of any mortgages or deeds of trust on the Demised Premises shall have the right to enter the Demised Premises at any time in the case of an emergency. (c) Prior to the Rent Commencement Date, Tenant and its agents, representatives and contractors, and others acting by or through them, shall have the right to enter the Demised Premises to conduct activities associated with the Due Diligence Condition, Entitlements Condition and Permits Condition. 964286.7 16 Section 16. Assignment, Subletting and Subordination. (a) Tenant shall not assign this Lease or sublet more than seventy-five percent (75%) of the interior portion of Improvements located on the Demised Premises to any unaffiliated third party without the prior written consent of Landlord. Landlord may not withhold its consent to such an assignment if (i) Tenant notifies Landlord of any such proposed assignment, (ii) the assignment document is executed by the assignee and provides for the assumption by the assignee of all of Tenant's duties and obligations hereunder accruing after the assignment, including responsibility for payment of such accruing Rent, (iii) a copy of the executed assignment document with the signatures of the assignor and the assignee is furnished to Landlord as a condition subsequent to the consent, and (iv) the assignee or a continuing guarantor of assignee's duties and obligations under the Lease has a net worth of at least $5,000,000.00 (determined either in accordance with generally accepted accounting principles or by reference to then current asset values, as reasonably determined by Landlord's then acting certified public accountant) and at least five (5) years' operating experience in the type of business to be conducted by the assignee. The foregoing $5,000,000.00 net worth requirement shall be increased at the same times and in the same proportions that Basic Rent increases hereunder. In the case of a sublease exceeding the aforesaid 75% threshold, Landlord's consent may be withheld only if the proposed subtenant, or its owners, principals or managerial personnel, do not have sufficient net worth or operating experience to conduct the subtenant's day-to-day business in the Demised Premises, as reasonably determined by Landlord (acknowledging that standards for a permitted sublease will be substantially less rigorous than those for a permitted assignment, in light of Tenant's continuing liability under this Lease in the case of a sublease). Landlord agrees to give reasonable deference to Tenant's evaluation of the wherewithal of any proposed subtenant, provided Tenant furnishes to Landlord copies of all information and documentation on which Tenant based its decision to sublease the Demised Premises to such subtenant. Upon any permitted assignment under the foregoing provisions of this Section (a), Tenant will be released from all further obligations and duties under this Lease arising after the date of the assignment. Without Landlord's written consent, Tenant may also assign the Lease or sublet the entirety of the Demised Premises to any affiliate of Tenant. Upon such an assignment, Tenant shall be released from liability for all further obligations and duties under this Lease arising after the date of the assignment, but only if the affiliate assignee has financial capacity (A) materially commensurate with that of Tenant at the time, or (B) otherwise adequate for the business operations on the Demised Premises, whichever is greater. Landlord shall promptly provide written confirmation of such release upon request For purposes of this Lease, affiliates of Tenant will include any firm, person, corporation, partnership, limited liability company or other entity which by virtue of direct or indirect ownership interests or operating or managerial authority is controlled by, controls or is under common control with Tenant. (b) No Subordination. Landlord shall not be required to subordinate its ownership and Landlord's interests in the Demised Premises to any mortgage/deed of trust financing subsequently obtained by Tenant, and any such financing will encumber only Tenant's leasehold interests in the Demised Premises and Tenant's ownership interest in the Improvements and shall be expressly made subject to the terms of this Lease. 964296.7 17 (c) The provisions of this Section 16 shall not apply to, and Landlord's approval shall not be required for, the transfer of stock in connection with a merger or consolidation of Tenant and another corporation or entity, or an assignment of this Lease in connection with a sale of all or substantially all of Tenant's assets, provided that Tenant's successor or assignee shall, as a result of such reorganization or by assumption, be legally bound to pay rental and all of the charges due hereunder and to perform all of the terms, covenants and provisions to be performed by Tenant arising after such reorganization or assignment. This Section 16 shall also not apply and Landlord's consent shall not be required in the event Tenant offers its shares to the public pursuant to a registered securities offering or private placement or any other transfer of stock which otherwise does not significantly alter the management of Tenant. (d) Notwithstanding any other provision to the contrary set forth in this Lease, a transfer of stock among the current stockholders of Tenant and their immediate families (i.e., spouses, parents, brothers, sisters, nieces, nephews, children, grandchildren or any spouse of any such parent, brother, sister, child or grandchild), any transfer of stock or assignment of this Lease to a family trust or family partnership or otherwise for estate planning purposes (and the related family beneficiaries may be of broader scope than the immediate family members described above), a transfer of stock by will or devise, or a transfer of stock to any employee, officer or director of Tenant, shall not constitute an assignment for the purposes of this Lease and shall not require Landlord's consent so long as at the time David Carpenter owns a majority of the voting ownership interests in Tenant or remains in managerial control of Tenant, or in the case of the death of David Carpenter, provision is made for other adequate management of Tenant. (e) Landlord's consent shall not be required for any subletting at any time of less than twenty-five percent (25%) of the interior portion of Improvements located on the Demised Premises. For sublettings of more than twenty-five percent (25%), Landlord's consent may be withheld only if the proposed subtenant, or its owners, principals or managerial personnel, do not have sufficient net worth or operating experience to conduct the subtenant's day-to-day business in the subject portion of the Demised Premises, as reasonably determined by Landlord (acknowledging that given the partial nature of the subtenant's occupancy, the requisite net worth and operating experience will be significantly less than those requisite to a permitted subletting under Section 16(a) above). Landlord agrees to give reasonable deference to Tenant's evaluation of the wherewithal of any proposed subtenant, provided Tenant furnishes to Landlord copies of all information and documentation on which Tenant based its decision to sublease the Demised Premises to such subtenant. Section 17. Assignment by Landlord. In the event of a sale and conveyance of Landlord's ownership interests in the Demised Premises, and a corresponding assignment by Landlord of its interest in this Lease, to a person or other entity that is solvent at the time of such sale or assignment and expressly assumes Landlord's duties and obligations under this Lease for the express benefit of Tenant, Landlord shall thereby be released from any liability hereunder which thereafter accrues, and Tenant agrees to look solely to and shall have recourse against such successor in interest of Landlord for performance of such subsequently accruing obligations. 964286.7 18 Section 18. Signs. Tenant shall have the right to install, maintain and replace in, on, or over its building, canopies and windows, or in any part thereof, or elsewhere in or on the Demised Premises, such signs and advertising matter as Tenant may determine are necessary for conducting the business of Tenant on the Demised Premises; provided, however, all Tenant's signage and advertising shall strictly comply with the requirements and approvals of the Weld County Building and Sign Codes. In addition, Tenant shall comply with any applicable requirements of governmental authorities having jurisdiction and shall obtain any necessary permits for such purposes. Tenant shall pay all costs of causing its signs to be erected and maintained. Upon expiration or earlier termination of this Lease, Tenant shall remove such signage and repair any damage to the Improvements resulting from the installation or removal of Tenant's signage. Section 19. Indemnity. (a) Tenant shall indemnify and save Landlord harmless from and against any and all claims, suits, actions, proceedings, liability, damages, penalties or judgments arising from injury to person or property, including death, sustained by anyone in and about the Demised Premises resulting from any act or omission of Tenant or Tenant's agents, servants, employees or contractors that constitutes any negligence, willful misconduct or breach of this Lease or other legal duty by Tenant. Tenant shall, at its own cost and expense, defend any and all suits or actions (just or unjust) which may be brought against Landlord or in which Landlord may be impleaded with others upon any such above mentioned matter or claim, except as may result from the acts set forth in Section 19(b) below. (b) Landlord shall indemnify and save Tenant harmless from and against any and all claims, suits, actions, proceedings, liability, damages, penalties or judgments arising from injury to person or property, including death, sustained by anyone in and about the Demised Premises resulting from any gross negligence or breach of this Lease or other legal duty of Landlord or Landlord's agents, servants, employees or contractors. Landlord shall, at its own cost and expense, defend any and all suits or actions (just or unjust) which may be brought against Tenant or in which Tenant may be impleaded with others upon any such above - mentioned matter or claim, except as may result from the acts set forth in Section 19(a) above. Section 20. Insurance. (a) Tenant shall provide at its expense, and keep in force during the term of this Lease, comprehensive commercial general liability insurance, including contractual liability, in a good and solvent insurance company or companies with an A.M. Best rating of at least A-NII or better (or a comparable standard prevailing from time to time in the insurance markets), licensed to do business in the State of Colorado, selected by Tenant, and reasonably satisfactory to the holder of any Leasehold Mortgage (as hereinafter defined) placed by Tenant on the Demised Premises, in the aggregate amount of at least Five Million and 00/100 Dollars ($5,000,000.00) with respect to bodily injury or death to any one person per occurrence and One Million Dollars and 00/100 Dollars ($1,000,000.00) with respect to damage to property, subject to such deductibles and risk retention as Tenant may establish in the ordinary course of business. Landlord shall be named as an additional insured. The aforesaid limits may be met through a combination of Tenant's primary coverage and umbrella and/or excess coverage, or a 964286.7 19 • captive insurance program, and Tenant shall provide at its expense, and keep in force during the term of this Lease, workers compensation insurance as to Tenant's employees in such amounts as is required by law. • (b) During the term of this Lease, Tenant shall keep all buildings and improvements erected by Tenant on the Demised Premises at any time insured for the benefit of Landlord, Tenant and any Leasehold Mortgagee, as their respective interests may appear, against loss or damage by fire and customary extended coverage in a minimum amount equal to one hundred percent (100%) of the replacement value of such buildings and improvements, subject to such deductibles as Tenant may establish in the ordinary course of business. All proceeds payable at any time and from time to time by any insurance company under such policies shall be payable to the Leasehold Mortgagee, if any, or to Tenant, and Landlord shall not be entitled to, and shall have no interest in, such proceeds or any part thereof. Any proceeds paid directly to Tenant shall be held by Tenant for the purpose of paying the expenses of complying with its obligations under this Lease. Landlord shall, at Tenant's cost and expense (with no out-of- pocket cost to Landlord), cooperate in good faith with Tenant in order to obtain the largest possible recovery and execute any and all consents and other instruments and take all other actions necessary or desirable in order to effectuate the same and to cause such proceeds to be paid as provided herein. (c) All insurance policies shall provide that they may not cancel Tenant without thirty (30) days' prior written notice to Landlord, to the extent such provision is available from Tenant's insurance carrier (provided that such provision specifically will not apply to workers compensation insurance). Tenant shall promptly furnish Landlord with copies of the applicable insurance policies in connection with the Rent Commencement Date and the renewal date for each policy, and will not permit any lapses in coverage. Section 21. Waiver of Subrogation. All insurance policies carried by either party covering the Demised Premises, including, but not limited to, contents, fire and casualty insurance, shall expressly waive any right on the part of the insurer against the other party. As to any loss or damage which may occur upon the property of a party hereto and be covered (or required by the terms of this Lease to be covered) under any insurance policy(ies), such party hereby releases the other from any amount of liability for such loss or damage. Such release shall include a release of liability for the full amount of any deductible maintained by a party under its insurance policy. ...... ..... . . Section 22. Destruction. In the event that, at any time during the term of this Lease, the buildings and improvements on the Demised Premises shall be destroyed or damaged in whole or in part by fire or other cause within the extended coverage of the fire insurance policies carried by Tenant in accordance with this Lease, there shall be no abatement of Rent hereunder (except as provided below), unless the damage is caused by Landlord's gross negligence or willful misconduct (in which case Rent shall be abated until Tenant completes restoration and resumes business operations in the Demised Premises). To the extent of the net proceeds received by Tenant plus any deductible maintained by Tenant, Tenant shall cause the same to be repaired, replaced or rebuilt (with such changes in the design, type or character of the building and improvements as Tenant may deem desirable) within nine (9) months after receipt by Tenant of such insurance proceeds, subject to Force Majeure delays. All such repairs and restoration shall 964286.7 20 be performed in a commercially reasonable manner and in accordance with all applicable laws. Notwithstanding the foregoing provisions to the contrary, in the event the buildings and improvements on the Demised Premises are destroyed or damaged at any time during the last two (2) years of the initial term of this Lease or any extension period, then at Tenant's election, (i) this Lease shall terminate as of the occurrence of the casualty upon Tenant giving Landlord notice thereof (such notice to be given no later than thirty (30) days after the occurrence of the casualty), in which event Tenant shall pay to Landlord the insurance proceeds collected in connection with such damage and destruction and which are attributable to the buildings and other improvements on the Demised Premises, less any reasonable amounts expended by Tenant to collect such insurance proceeds and less any reasonable amounts expended by Tenant to place the Demised Premises in a safe condition following such damage (which may include demolition of the Improvements), or (ii) Tenant shall cause the same to be repaired, replaced and rebuilt in accordance with the terms and conditions contained in this Section 22. All Rent obligations of Tenant shall also be apportioned to the date of termination, and upon termination the parties shall be released from all further obligations and duties hereunder arising after termination, except for those accrued obligations and duties which by their terms survive termination. Section 23. Eminent Domain. (a) As used herein, the term "Taking" shall mean and refer to the event of vesting of title in a competent authority vested with the power of eminent domain or condemnation pursuant to any action or proceeding brought by such authority in exercise of such power, including a voluntary sale to such authority (which may occur only with the written consent of Tenant, which shall not be unreasonably delayed or withheld), either under threat of, or in lieu of, condemnation or while a condemnation action or proceeding is pending. If, at any time during the term of this Lease, there shall be a Taking of all of the Demised Premises, or a substantial part of the Demised Premises (including access thereto) such that the portion of the Demised Premises remaining after such Taking would, in Tenant's reasonable business judgment, be impractical for use by Tenant, then Tenant at its election may terminate this Lease by giving Landlord written notice thereof within thirty (30) days after the occurrence of the Taking. Upon such a termination, Tenant shall be relieved of its obligations to pay Rent and to perform its other covenants hereunder from and after the date of such Taking, and Tenant shall surrender the remaining portion of the Demised Premises, if any, to Landlord; provided that such release and surrender shall in no way prejudice or interfere with Tenant's right to an award for its loss or damage as hereinafter provided. The Rent for the last _month of Tenant's possession of the Demised Premises shall be prorated to the date of the surrender, and any Rent paid in advance shall be refunded to Tenant. (b) In the event of a Taking which does not result in a termination of this Lease pursuant to this Section 23, the term of this Lease shall not be reduced or affected in any way, but the Basic Rent payable hereunder shall be reduced by an amount which bears the same ratio to the Basic Rent payable immediately prior to such Taking as the fair market value of the Demised Premises (excluding improvements) after Taking bears to the fair market value of the Demised Premises (excluding improvements) immediately prior to the Taking (such fair market values to be determined pursuant to Section 41 hereof). The award for any partial Taking shall be allocated between Landlord and Tenant as described in Section 23(c) below; provided, however, if Tenant elects to restore, replace or reconstruct any improvements which are the 964286.7 21 subject of or damaged or affected because of any Taking, Landlord shall deliver to Tenant its share of the award attributable to such improvements to the extent Tenant's award attributable to such improvements is not sufficient to pay for the cost of restoration, replacement and reconstruction. (c) In the event of any Taking of all or any portion of the Demised Premises, Landlord shall be entitled to an award based on the Taking of or injury to the fee simple estate in the Demised Premises as encumbered by this Lease and subject to Tenant's interests in the Demised Premises and Improvements, and Tenant shall be entitled to an award based on any loss or reduction of or damage to its leasehold estate, loss of or damage to any building or other improvements constructed or placed on the Demised Premises, loss or interruption of business and the cost of any alterations or restoration resulting from any such Taking. Any single award or settlement shall be allocated between the parties in accordance with the foregoing. Landlord and Tenant shall together make one claim for an award for their combined interests in the Demised Premises; and, to the extent possible, the parties shall cooperate to maximize that award. (d) Landlord and Tenant shall each have the right to make individual claims in the applicable condemnation action (including by supplemental proceedings) in furtherance of their respective interests in any combined award when it is made. However, if the court fails or refuses to grant separate awards to Landlord and Tenant upon a Taking of all or any portion of the Demised Premises, Landlord and Tenant agree that the determination of such allocation shall be made in accordance with the appraisal procedures in Section 41 below, applied to determine the market values of Landlord's and Tenant's respective interests under Section 23(c) above, and with the actual award to be apportioned based on those relative values. Section 24. Utility Easements. Tenant shall have the right to enter into reasonable agreements with utility suppliers creating easements in favor of such suppliers, including, without limitation, suppliers of gas, electricity, telephone, telecommunications, internet and fiber optic services, water and sewer, as are required in order to service the buildings and improvements on the Demised Premises, and any other easements reasonably necessary for the development of the Facilities. To the extent set forth in the standard easement forms of the applicable utility suppliers, any such easements shall require the utility supplier to restore the easement area following any construction or repair work and such easements shall reserve the rightsof the owner of the Demised Premises to relocate suchutility lines from. time to. time, at such owner's expense (provided, however, the foregoing shall not operate to permit Landlord to so relocate any such utility lines during the term of this Lease). Landlord covenants and agrees to consent to such easements and to execute any and all documents, agreements and instruments, and to take all other actions reasonably required in order to effectuate the same, all at Tenant's cost and expense. Section 25. Leasehold Mortgages. (a) Notwithstanding any other provision hereof to the contrary, Tenant shall have the right, following the Rent Commencement Date and after issuance of a final certificate of occupancy from Weld County for the Facilities, to convey or encumber, by mortgage, deed of trust or similar financing instrument, Tenant's leasehold estate in the Demised Premises and 964?86.7 22 ownership interests in the Improvements, or any part thereof (each such leasehold mortgage, deed of trust or other financing instrument being herein referred to as a "Leasehold Mortgagee" and the holder thereof as a "Leasehold Mortgagee"). The execution and delivery of a Leasehold Mortgage shall not, in and of itself, be deemed to constitute an assignment or transfer of this Lease, nor shall the Leasehold Mortgagee, as such, be deemed an assignee or transferee of this Lease so as to require such Leasehold Mortgagee to assume the performance of any of the covenants or agreements on the part of Tenant to be performed hereunder. If Tenant shall enter into any such financing arrangement, it shall deliver to Landlord true and complete copies of the instruments effecting such transaction. Simultaneously with the delivery to Landlord of the aforesaid instruments effecting such transaction, Tenant shall also give Landlord notice of the name and address of the party providing such financing. (b) Tenant agrees that Tenant shall not encumber its leasehold estate with more than one (1) Leasehold Mortgage at one time without the prior written consent of Landlord. With respect to any Leasehold Mortgagee or other person providing financing as to which Landlord shall have been given notice, the following shall apply notwithstanding any other provision of this Lease to the contrary: (i) No voluntary termination by Tenant of this Lease shall be effective unless consented to in writing by such Leasehold Mortgagee; and any material amendment or material modification of this Lease or the exercise by Tenant of any option to terminate this Lease without the written consent of such Leasehold Mortgagee shall be voidable as against such Leasehold Mortgagee at its option. If any Leasehold Mortgagee shall fail to respond to any written consent under this Section 25 within thirty (30) days after the receipt by such Leasehold Mortgagee of such written request (which written request shall make specific reference to this Section 25), the Leasehold Mortgagee shall be deemed to have granted its consent to such request (unless otherwise provided in the Leasehold Mortgage). (ii) Landlord shall give any and all notices given to Tenant hereunder simultaneously to any such Leasehold Mortgagee at the address of such Leasehold Mortgagee provided to Landlord, and no such notice shall be effective as to such Leasehold Mortgagee unless and until a copy thereof has been given to such Leasehold Mortgagee. In the event Landlord sends Tenant a notice of default, from and after the time that such notice has been delivered to such Leasehold Mortgagee, such Leasehold Mortgagee shall have a period equal to the.. period granted to Tenant plus, with respect to monetary. defaults., . an additional ten (10) business days in which to effect a cure, and with respect to non -monetary defaults only, an additional thirty (30) days in which to effect a cure of any default by Tenant under this Lease. Landlord shall accept performance of any and all of Tenant's obligations hereunder, including the obligations to pay Rent, from any such Leasehold Mortgagee, and the performance of such obligation by such Leasehold Mortgagee shall be deemed to have been a cure effected by Tenant (but without the Leasehold Mortgagee being thereby deemed to have assumed Tenant's obligations hereunder). Landlord shall not exercise any remedies for terminating this Lease because of a Tenant default so long as any cure rights of the Leasehold Mortgagee hereunder remain outstanding. Landlord hereby consents to the entry into the Demised Premises by any such Leasehold Mortgagee for the purpose of effecting the cure of any default by Tenant. In the event of a default by Tenant hereunder, any Leasehold Mortgagee may effect the cure of such 964286.7 23 default by foreclosing its Leasehold Mortgage, obtaining possession of the Demised Premises, and performing all of Tenant's obligations hereunder. (iii) If it shall be necessary for any such Leasehold Mortgagee to obtain possession of the Demised Premises to effect any such cure of a default by Tenant under this Lease, then Landlord shall not commence any proceeding or action to terminate the term of this Lease if (A) such Leasehold Mortgagee shall have informed Landlord within the Leasehold Mortgagee's cure period that such Leasehold Mortgagee is proceeding to foreclose its Leasehold Mortgage, (B) the Rent shall be paid and all other provisions and requirements of this Lease which are capable of being observed and performed by the Leasehold Mortgagee without obtaining possession of the Demised Premises are so observed and timely performed within the Leasehold Mortgagee's cure periods while any such foreclosure, other action or other remedy is being prosecuted by any such Leasehold Mortgagee and for so long thereafter as such Leasehold Mortgagee shall have obtained possession of the Demised Premises, and (C) such Leasehold Mortgagee shall be diligently prosecuting such foreclosure and attempting to effect a cure of the default. In addition, any cessation of business operations in the Demised Premises shall not constitute a default or permit Landlord to exercise termination rights hereunder as against the Leasehold Mortgagee (or its designee or foreclosure purchaser) if business operations are resumed within 90 days after the Leasehold Mortgagee (or its designee or foreclosure purchaser) succeeds to Tenant's interests under this Lease, or such cessation otherwise gives rise to a default by Tenant, whichever is later (the "Operations Grace Period"). Nothing herein contained shall be deemed to require the Leasehold Mortgagee to continue with any foreclosure or other proceedings if the default in respect to which Landlord shall have given the notice shall be remedied. (iv) Landlord agrees that in the event of the termination of this Lease by reason of any default by Tenant, or of the rejection of this Lease in any federal bankruptcy case involving Tenant as the debtor, and if Landlord has, prior to such termination or rejection, been given written notice of the name and address of such Leasehold Mortgagee, Landlord will enter into a new lease of the Demised Premises with any Leasehold Mortgagee or its nominee for the remainder (or what would have been the remainder) of the term of this Lease, effective as of the date of such termination or rejection, at the Rent and upon the terms, options, provisions, covenants and agreements as herein contained for such remainder (subject to the Operations Grace Period), provided: (A) Such Leasehold Mortgagee shall make written request upon Landlord for such new lease prior to or within thirty (30) days after the date of notice from Landlord to the Leasehold Mortgagee of the termination or rejection and of the right to make the new lease hereunder, and such written request is accompanied by payment to Landlord of all sums then due to Landlord hereunder, which shall be accounted for in Landlord's notice; (B) Such Leasehold Mortgagee or its nominee shall pay to Landlord at the time of the execution and delivery of said new lease any and all sums which would at that time be due hereunder but for such termination or rejection, together with any expenses, including reasonable attorneys' fees, incurred by Landlord as a result of such termination, as well as in the preparation, execution and delivery of such new lease; 964286.7 24 (C) Any new tenant other than the Leasehold Mortgagee or its foreclosure purchaser shall have operational experience and financial strength that would qualify for a permitted assignment of this Lease under Section 16(a) hereof; and (D) The Leasehold Mortgagee shall establish to the satisfaction of Landlord the Leasehold Mortgagee's interests under a Leasehold Mortgage permitted by this Section 25. (v) No Leasehold Mortgagee shall become liable under the agreements, terms, covenants or conditions of this Lease unless and until it becomes the owner of the leasehold estate, and then only to the extent of obligations accruing thereafter. Any assignment of the entire interest in this Lease by any owner of the leasehold estate whose interest shall have been acquired by, through or under any Leasehold Mortgage or from any holder thereof (including, without limitation, any nominee of the Leasehold Mortgagee) shall be subject to Section 16 of this Lease, and the assignor shall be relieved of any further liability which may accrue hereunder from and after the date of such assignment, provided that the assignee meets the applicable qualifications set forth in Section 16, and shall execute and deliver to Landlord a recordable instrument of assumption wherein such assignee shall assume and agree to perform and observe the covenants and conditions in this Lease contained on Tenant's part to be performed and observed, it being the intention of the parties that once the Leasehold Mortgagee or its nominee or foreclosure purchaser shall succeed to Tenant's interest hereunder, any and all subsequent assignments (whether by such Leasehold Mortgagee, its nominee, or any purchaser at a foreclosure sale or other transferee or assignee from Leasehold Mortgagee or its nominee) shall upon the aforesaid assumption and agreement by the assignee, effect a release of the assignor's liability hereunder. Nothing herein or in Section 16 hereof shall preclude any Leasehold Mortgagee or its nominee or foreclosure purchaser from succeeding to Tenant's interests hereunder by foreclosure or assignment in lieu thereof, or restrict such succession, and notwithstanding any of the provisions hereof indicating to the contrary, any of them as a successor to Tenant will be subject only to termination of this Lease or eviction, and not have any personal liability, in the case of a default. (vi) Nothing herein contained shall require any Leasehold Mortgagee or its nominee or foreclosure purchaser to cure any default by Tenant hereunder. All references in this Section 25 to any termination of this Lease by Landlord shall be deemed to include any dispossession of. Tenant for _a default. (vii) In consideration of Landlord's foregoing agreement with respect to the rights of the Leasehold Mortgagees, all Leasehold Mortgagees shall be deemed to have acknowledged that upon the termination or expiration of this Lease, Landlord becomes the absolute owner of the Improvements installed or constructed on or under the Demised Premises free and clear of the liens or claims of the Leasehold Mortgagee. (viii) If requested by any Leasehold Mortgagee from time to time, Landlord agrees to execute and deliver further confirmations of the Leasehold Mortgagee's rights hereunder, and also supplements or modifications to such rights, provided that any supplements or modifications requested by the Leasehold Mortgagee shall,not have a material adverse effect 964266.7 25 on the Landlord's interests under this Lease or in the Demised Premises, as reasonably determined by the Landlord. (ix) Leasehold Mortgagees shall be third -party beneficiaries of the provisions of this Section 25. Section 26. Quiet Enjoyment; Status of Landlord's Title. (a) Landlord covenants and warrants that Tenant, upon paying the Rent and all other sums and charges to be paid by it as herein provided, and observing and keeping all covenants, warranties, agreements and conditions of this Lease on its part to be kept, all within the cure periods provided herein, shall quietly have and enjoy the Demised Premises during the term of this Lease, without hindrance or molestation by anyone. (b) Landlord represents and warrants to Tenant that Landlord owns fee simple title to the Demised Premises free and clear of any liens, encumbrances and restrictions, except only those matters set forth on Exhibit "B" (the "Title Exceptions") attached hereto and by reference made a part hereof, and that Landlord has the power and authority to execute and deliver this Lease and to carry out and perform all covenants to be performed by Landlord hereunder. (c) Landlord warrants and covenants that the Demised Premises and any interests of Landlord therein are not presently subject to or encumbered by any deed of trust, mortgage or similar lien. In the event Landlord hereafter grants any deed of trust or mortgage encumbering Landlord's interests in the Demised Premises, such deed of trust will be subject to all the rights and interests of Tenant under this Lease, which will have and retain priority over any such mortgage or deed of trust, and Tenant will have no obligation to subordinate its rights and interests hereunder to any such deed of trust or mortgage. In the event of any foreclosure or deed in lieu of foreclosure under any such deed of trust or mortgage hereafter arising, Tenant agrees that Tenant will recognize and attorn to Landlord's successor in interest by virtue thereof as the new "Landlord" under this Lease, subject to such successor's performance and observance of Landlord's obligations hereunder. (d) Landlord acknowledges that, upon the establishment of the Rent Commencement Date of this Lease and the recordation of the Short Form Lease, Tenant intends to obtain a leasehold title insurance policy insuring Tenant's leasehold estate in the Demised Premises. During the 20 -day period after the Effective Date (the "Title Review Period"), Tenant may examine title to the Demised Premises (which may entail, at Tenant's election, Tenant's obtainment of a title insurance commitment and/or current survey) and advise Landlord in writing of any defects or objections affecting the title to the Demised Premises or the use thereof by Tenant disclosed by such title examination, such defects and objections to be determined by Tenant in its discretion. From time to time prior to the Rent Commencement Date, Tenant may update the effective date of such title examination and give notice to Landlord of all defects or objections (again as determined by Tenant in its discretion) and appearing of record or added to the title insurance commitment subsequent to the effective date of its previous title examination and (if applicable) survey, as the case may be (provided Tenant may not object to any matters caused by Tenant). Landlord shall have ten (10) days after receipt of such notice of title defects or objections from Tenant to advise Tenant in writing 964286.7 26 which of such title defects or objections Landlord does not intend to satisfy or cure to Tenant's satisfaction (and Landlord will otherwise be obligated for such satisfaction and cure); provided, however, Landlord hereby agrees that Landlord shall satisfy and secure the release and discharge of any Taxes, mortgages, deeds of trust, mechanic's or materialmen's liens or other such monetary encumbrances ("Monetary Liens"). In addition, from and after the Effective Date, Landlord shall notmake any grants or cause or suffer any further liens, covenants, easements, or other encumbrances against or matters affecting title to the Demised Premises except as otherwise provided in Section 26(c). Subject to the qualification hereinafter provided, Landlord further agrees that Landlord shall, for the issuance of Tenant's leasehold title insurance policy, deliver to the title insurer a customary owner's affidavit (the "Owner's Affidavit") in a form sufficient to delete the so-called "standard exceptions" in an ALTA title insurance policy. If Landlord shall advise Tenant in writing that Landlord does not intend to satisfy or cure any specific non -monetary encumbrances, or otherwise fails to satisfy its obligations under the foregoing provisions, Tenant may elect to (a) terminate this Lease by written notice to Landlord, (b) accept its leasehold estate subject to such specific non -monetary encumbrances or the pertinent failure of Landlord's obligations, or (c) in the case of any failure of Landlord to pay any Landlord Liens or satisfy any other cure obligations undertaken by the Landlord under the foregoing provisions, exercise Tenant's remedies under Section 27(d) hereof. Unless otherwise agreed by Landlord and Tenant, Landlord shall have until the satisfaction of the Entitlements Condition to satisfy or cure all such defects and objections which Landlord agreed (or is deemed to have agreed) to satisfy or cure as provided above. The foregoing shall not be construed, however, to limit Tenant's rights to terminate this Lease pursuant to the Due Diligence Condition for any dissatisfaction with title that Tenant may have. In further clarification, and notwithstanding anything to the contrary contained herein, if, as provided herein, Landlord does not agree to cure all of Tenant's objections to title and Tenant does not terminate this Lease as provided above, then Tenant will be deemed to have waived its objections to any title matters that Landlord did not agree to cure (subject, however, to Tenant's election under clause (c) above). The Owner's Affidavit shall be subject to any title matters that Landlord does not agree to cure to the extent they are relevant to the terms of the Owner's Affidavit. (e) Landlord hereby assigns to Tenant all of Landlord's rights and interests in and to surveys of the Demised Premises held by Landlord, including, without limitation, the land survey plat prepared by TST Inc., Job No. 0039.0004.01, and any improvement survey plats or ALTA surveys ("Landlord's Surveys");- provided, however, that Landlord shall retain non-exclusive rights to use and enjoy Landlord's Surveys for its own purposes in relation to the Demised Premises. This assignment is subject to the condition subsequent that Tenant not terminate this Lease pursuant to the Due Diligence Condition, Entitlements Condition or Permits Condition. On the date of the mutual execution and delivery of this Lease, Landlord will inform the surveyor(s) for the Landlord's Surveys of this assignment and instruct and authorize the surveyor(s) to make adjustments and supplements for the Landlord's Surveys as requested by Tenant. Section 27. Defaults. (a) The following events shall constitute events of default under this Lease (all references in this Lease to any default by Tenant, or similar references, shall mean events of 964286.7 27 default as defined below, after expiration of applicable cure periods without a cure being effected): (i) Tenant's failure to pay any installment of Basic Rent, Percentage Rent or Additional Rent when the same shall be due and payable and the continuance of such failure for a period of five (5) business days after receipt by Tenant of notice in writing from Landlord specifying the nature of such failure; provided, however, Tenant shall be entitled to only two (2) such notices for monetary defaults during any twelve (12) month consecutive period, and if thereafter any Rent is not paid when due within that 12 -month period, then the foregoing cure period will run with respect thereto from such Rents' due date, without any notice from Landlord; (ii) Tenant's failure to perform any of the other covenants, conditions and agreements herein contained on Tenant's part to be kept or performed and the continuance of such failure without the curing of same for a period of thirty (30) days after receipt by Tenant of notice in writing from Landlord specifying the nature of such failure, and provided Tenant shall not cure said failure (and further subject to extension of this cure period under Section 27(b) below); (iii) If Tenant shall (A) file a petition commencing a voluntary case under any applicable federal or state bankruptcy, insolvency or other similar law; (B) make a general assignment for the benefit of its creditors; (C) file anapplication for, or consent to, the appointment of any receiver or a permanent or interim trustee of Tenant or of all or a substantial portion of its property; (D) file a petition seeking a reorganization of its financial affairs or to take advantage of any bankruptcy, insolvency or similar law, or an answer admitting the material allegations of a petition filed against it in any proceeding under any such law; (E) take any action for the purpose of effecting any of the foregoing; or (F) be the subject of a decree or order for relief by a court having jurisdiction in respect of Tenant in any involuntary case under any applicable federal or state bankruptcy, insolvency or similar law; or (iv) If any proceedings brought against Tenant seeking any of the relief mentioned in Section 27(a)(iii) above shall not have been dismissed within ninety (90) days. (b) In the event that Landlord gives notice of a default referred to in Section 27(a)(ii) and said default is of such a nature that it cannot reasonably be cured within such thirty (30) day period, then such default shall not be deemed to occur so long as Tenant, after receiving such notice, promptly proceeds to cure the default and continues to take all steps necessary to complete the same promptly. Notwithstanding anything to the contrary contained in the foregoing sentence, there shall be a default hereunder if Tenant fails to cure such default on or before two (2) months after notice thereof; provided, however, if Tenant's failure to cure in such time period is a result of Force Majeure (as defined in Section 45 below), then such cure period shall be automatically extended for each day of delay due to Force Majeure. (c) In the event of default of Tenant, Landlord, at its option shall have, in addition to, and not to the exclusion of, any and all other rights and remedies hereunder or at law or in equity, but subject to applicable law, (i) the right to declare the term of this Lease ended, re-enter the Demised Premises and take possession thereof, terminating all of the rights of 9642863 28 Tenant under this Lease and in and to the Demised Premises and to collect from Tenant all costs and damages to which Landlord is entitled as a result of such default; or (ii) the rights, without declaring the term of this Lease ended, to re-enter the Demised Premises and to occupy the same, or any portion thereof, or to lease the whole or any portion thereof, for and on account of Tenant as hereinafter provided, applying any monies received first to payment of such expenses, including attorney's fees and real estate commissions paid, assumed or incurred by Landlord in or in connection with the recovery, cleaning, repairing, altering, restoring and reletting of the Demised Premises and then to the fulfillment of the obligations of Tenant hereunder, with any such reletting to be for such a term, at such rent, and on such other conditions as Landlord in its sole discretion deems advisable, and retaining the right to bring action against Tenant for the recovery of damages sustained by Landlord as a result of Tenant's default; or (iii) the right, even though it may relet all or any portion of the Demised Premises as above provided, to thereafter, at any time, terminate this Lease for such previous default on the part of Tenant, retaining the right to bring legal action against Tenant for recovery of damages sustained by Landlord as a result of Tenant's default. (d) If Landlord defaults in any of its obligations under this Lease, and does not cure such default (i) within ten (10) days after notice from Tenant in any case where such default can be cured by the payment of a sum, or (ii) within thirty (30) days after notice from Tenant in the case of any other default, then Tenant shall have the right to perform or discharge the defaulted obligation. Tenant may offset against the Tenant's Rent obligations hereunder any costs and expenses incurred by Tenant in curing or discharging the Landlord's defaulted obligations as aforesaid, including, without limitation, attorneys' fees and settlement or payment amounts incurred to third parties; provided, however, that if the pertinent obligation owing to any third party is not liquidated in amount, any settlement payment to that party may be offset against the Rent only so long as the amount thereof is reasonable (and Tenant and Landlord mutually agree to confer reasonably in this regard). Actions taken by the Tenant may include paying, purchasing, contesting or compromising any valid encumbrance, charge or lien affecting the Demised Premises, or any other title matter affecting the Demised Premises that gives rise to a default of Landlord's obligations under this Lease. This Section 27(d) shall be cumulative with and without limitation on Tenant's rights and remedies available at law or equity for any default by Landlord hereunder. Section 28. Interest and Late Charges. All Rent owed by Tenant to Landlord under this Lease shall bear interest from the fifth (5th) business day after the date due until received by Landlord at eighteen percent (18%) per annum. In addition, if any installment of Basic Rent under this Lease is not received by Landlord on or before the fifth (5th) business day after the due date, a "late charge" of $375.00 may be charged by Landlord, as Additional Rent, for the purpose of defraying Landlord's administrative expenses incident to the handling of such overdue payment. Section 29. Waivers. Failure of Landlord or Tenant to complain of any act or omission on the part of the other party no matter how long the same may continue, shall not be deemed to be a waiver by said party of any of its rights hereunder. No waiver by Landlord or Tenant at any time, express or implied, of any breach of any provision of this Lease shall be deemed a waiver of a breach of any other provision of this Lease or a consent to any subsequent breach of the same or any other provision. 964286.7 29 Section 30. Brokerage Commissions. Each party represents to the other that there are no brokers engaged by, through or under the representing party in connection with this transaction, and that there are no obligations incurred by, through or under the representing party for the payment to any broker of any commission or other compensation in connection with this transaction. Each party agrees to indemnify the other against any claim for any brokerage commission or other compensation which arises out of a breach by the indemnifying party of its representation under the foregoing provisions, and any applicable lien claim arising therefrom, together with any cost or expense, including reasonable attorneys' fees, that the indemnified party may incur in connection with any such claim. Section 31. Representations and Warranties. To induce Tenant to enter into this Lease; Landlord does hereby expressly warrant and represent to Tenant the following: (a) There are no actions, suits or proceedings of any kind or nature whatsoever, legal or equitable, pending or, to the best of Landlord's knowledge, threatened against the Demised Premises or Landlord in any court or before or by any federal, state, county or municipal department, commission, board, bureau or agency or other governmental instrumentality, including, without limitation, any condemnation or eminent domain proceedings. (b) No person, firm, corporation or other legal entity whatsoever (other than Tenant) has any right or option whatsoever to acquire or lease the Demised Premises or any portion or portions thereof or any interest or interests therein. (c) To the best of Landlord's knowledge, the Demised Premises are not and will not be subject to or affected by any special assessments, whether or not presently a lien thereon. (d) To the best of Landlord's knowledge, without independent inquiry, there is no existing violation or breach of any ordinance, code, law, rule, requirement or regulation applicable to the Demised Premises. Section 32. Right of First Offer. (a) If during the term of this Lease Landlord determines that Landlord desires to offer the Demised Premises for sale to a proposed unaffiliated purchaser, or if Landlord receives an offer to purchase the Demised Premises from an unaffiliated third party that Landlord wishes to accept, and Tenant is not in default hereunder, Landlord shall offer Tenant the right to purchase the Demised Premises by sending to Tenant a written notice of all material terms of the offer to sell or purchase necessary to complete the transaction, including the price, payment terms, conditions of title, costs of escrow and other relevant terms, and a complete contract if one has been tendered, such notice to also identify the third -party purchaser. Tenant shall have fifteen (15) days after receipt of such notice to exercise its right to purchase by providing written notice to Landlord. If Tenant exercises the right to purchase as herein provided, such purchase and sale shall be on the terms presented to Tenant, and Landlord will be bound to sell to Tenant on those terms. Tenant shall have the remedy of specific performance to enforce Landlord's obligations to convey the Demised Premises pursuant to any exercise by Tenant of its rights hereunder (for which time shall be of the essence). If Tenant 9642B6.7 30 does not provide notice of exercise within said 15 -day period, then Landlord may proceed to sell the Demised Premises to the applicable third party subject to the terms and conditions provided in Landlord's notice to Tenant, and otherwise on terms that are not materially more favorable to the third party than those presented to Tenant. If Landlord does not complete the sale of the Demised Premises to the subject third party, in accordance with the foregoing provisions, within six (6) months after the end of Tenant's exercise period, and if Landlord determines again that Landlord desires to offer the Demised Premises for sale, Landlord must then again comply with the terms hereof and Tenant shall again have the right of first offer contained herein. However, in the event Tenant ever exercises its right of first offer but then breaches Tenant's required closing performance therefor, then Tenant's right of first offer hereunder will terminate and be of no further force or effect. (b) This Section 32 shall not apply in the event (i) of a sale or transfer of Landlord's interest in the Demised Premises pursuant to the foreclosure of any deed of trust, mortgage or other similar security instrument, whether by judicial or non judicial sale, or any deed in lieu of foreclosure, covering the Demised Premises or Landlord's fee interest therein; (ii) any transfer of the Demised Premises or any direct or indirect interest therein to any form of joint venture of which Landlord is a party; (iii) any sale involving other properties of Landlord as well as the Demised Premises; (iv) any exchange of the Demised Premises for other property in a transaction where the applicable third party actually provides the exchange property (versus merely serving as an exchange accommodator); or (v) any conveyance to any party or entity affiliated with Landlord or any of the principals of Landlord or any of their family members, or otherwise not on an arm's -length basis. Further, this Section 32 shall not apply to any transfer by descent or devise following the death of any party holding an ownership interest in Landlord or to transactions by and among Landlord or any family member of any party holding an ownership interest in Landlord or their affiliates, including, without limitation, trusts, corporations or other entities having a majority interest owned by or inuring to the benefit of Landlord or any family member of any party holding an ownership interest in Landlord or their affiliates. However, the provisions of this Section 32 and Tenant's right of first offer under Section 32(a) shall be and remain binding upon any purchaser or transferee under this Section 32(b) and such purchaser's or transferee's heirs, successors and assigns. Section 33. Notices; Business Days. (a)... Every notice,... approval, consent, orother communication authorized. or required by this Lease shall not be effective unless the same shall be in writing and delivered (i) by hand delivery; (ii) by reputable overnight courier guaranteeing next day delivery, delivery charges prepaid, and addressed to the applicable street address established hereunder; (iii) by e-mail or facsimile sent on a business day during the business hours of 9:00 a.m. until 7:00 p.m., local time where the Demised Premises are situated, pursuant to the applicable e-mail addresses or facsimile numbers set forth below, or such other e-mail addresses or facsimile numbers as either party may designate by notice given from time to time in accordance with this Section 33; or (iv) by United States registered or certified mail, return receipt requested, postage prepaid, directed to the other party at its address set forth below, or such other address as either party may designate by notice given from time to time in accordance with this Section 33. Such notices or other communications shall be effective (A) in the case of hand delivery, on the date of delivery to the party to whom such notice is addressed at its street address established for 964286.7 31 notice purposes, (B) if by overnight courier, one (1) business day after the deposit thereof with all delivery charges prepaid, (C) if by e-mail or facsimile, on the date of transmission, provided that such transmission is sent on a business day, during the hours stated above, and provided that successful transmission of any facsimile notice is confirmed on the facsimile facilities of the noticing party as a regular function thereof, and (D) in the case of registered or certified mail, the earlier of the date receipt is acknowledged on the return receipt for such notice or five (5) business days after the date of posting by the United States Post Office. The Rent payable by Tenant hereunder shall_ be paid to Landlord at the same place where a notice to Landlord is herein required to be directed. Any notice may be given on behalf of a party by its legal counsel. Street/mailing addresses, e-mail addresses, and facsimile numbers for notices shall initially be as follows: For Landlord: Burger Avenue Investments, LLP Attention: David L. Osborn 217 West Olive Street Fort Collins, CO 80521 Facsimile: 970-484-2620 E-mail: dosbornlaw@comcast.net In the case of any notice to Landlord, a copy thereof shall be delivered contemporaneously to: The Osborn Law Firm, LLC Attention: David L. Osborn 217 West Olive Street Fort Collins, CO 80521 Facsimile: 970-484-2620 E-mail: dosbornlaw@comcast.net For Tenant: J.D. Carpenter Companies, Inc. Attention: Dave Carpenter 4060 NW Urbandale Drive Urbandale, IA 50322 Facsimile: 515-334-7390 E-mail: dcarpenter@shortstopstores.com In the case of any notice to Tenant, a copy thereof shall be delivered contemporaneously to: Robert C. Fisher, Jr., Esq. Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 Seventeenth Street, Suite 1600 Denver, Colorado 80202 Facsimile: (303) 825-6525 E-mail: bfisher@ottenjohnson.com 969266.7 32 (b) All references herein to any dates or times shall be applied and determined by reference to local time where the Demised Premises are situated. As used herein, the term "business day" shall mean any day other than a Saturday, Sunday or legal holiday for which U.S. mail service is not provided. Whenever any date or the expiration of any period specified under this Lease, whether for the satisfaction of any condition or the performance or observance of any obligation hereunder (including, without limitation, the payment of any Rent), falls on a day other than a business day, then such date or period shall be deemed extended to the next succeeding business day thereafter. Section 34. Estoppel Certificates. Either party shall, without charge, at any time and from time to time hereafter, within ten (10) business days after written request of the other by notice hereunder, certify by written instrument duly executed and acknowledged to the requesting party, and any designatedmortgagee or purchaser or proposed mortgagee or proposed purchaser, or any other person, firm or entity specified in such request, (i) as to whether this Lease has been supplemented or amended, and, if so, the substance and manner of such supplement or amendment; (ii) as to the validity and force and effect of this Lease, in accordance with its tenor as then constituted; (iii) as to the existence of any default under this Lease, or any circumstances which with the giving or notice or passage of time, or both, would become a default (in each case other than a Tenant default in paying Rent, based on the responding party's knowledge); (iv) as to the existence of any known outstanding offsets, counterclaims or defenses thereto on the part of such other party; (v) as to the commencement and expiration dates of the term of this Lease; (vi) as to the amount of Basic Rent then payable hereunder; and (vii) as to any other matters as may reasonably be so requested. Any such certificate may be relied upon by the party requesting it and any other person, firm or corporation to whom the same may be exhibited or delivered, and the contents of such certificate shall be binding on the party executing same. In the event the responding party fails to furnish its response within the requisite 10 -day business day period, it shall be conclusive upon the responding party that the matters requested for disclosure are in the status most favorable to the requesting party, as determined by the requesting party. Section 35. Governing Law. This Lease and the performance thereof shall be governed, interpreted, construed and regulated by the laws of the State of Colorado. Section 36. Partial Invalidity. If any term, covenant, condition or provision of this Lease or the application thereof to any person or circumstance shall, at any time or toany. extent., be invalid or unenforceable, the remainder of this Lease, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not he affected thereby, and each term, covenant, condition and provision of this Lease shall be valid and be enforced to the fullest extent permitted by law. Section 37. Short Form Lease. Landlord and Tenant shall execute and deliver a Memorandum of Lease in the form attached hereto as Exhibit "C" and made a part hereof by this reference (the "Short Form Lease") upon the establishment of the Rent Commencement Date, which will constitute a short form of this Lease. Any and all recording costs required in connection with the recording of such Short Form Lease shall be paid by Tenant. 964286.7 33 Section 38. Interpretation. Wherever herein the singular number is used, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders, and vice versa, as the context shall require. The section headings used herein are for reference and convenience only, and shall not enter into the interpretation hereof. This Lease may be executed in several counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument. Section 39. Entire Agreement Modification of Lease. This Lease and any other documents or instruments referred to herein constitute the entire agreement between Landlord and Tenant with respect to the subject matter hereof and are intended to be a complete integration of all understandings and agreements between Landlord and Tenant with respect to such subject matter, and any prior or extrinsic understandings or agreements, whether written or verbal, not embodied in this Lease or such other documents are specifically superseded hereby and shall have no force or effect. No provision of this Lease may be amended or modified or canceled in any respect except by writing executed by Landlord and Tenant. Section 40. Parties. Except as herein otherwise expressly provided, the covenants, conditions and agreements contained in this Lease shall bind and inure to the benefit of Landlord and Tenant and their respective heirs, successors, successors in title, administrators and assigns, and references herein to "Landlord" and "Tenant" shall include those parties. Section 41. Determinations of Value. (a) For any determination of the relevant fair market values under Section 23(b) or Section 23(d) above (in either case, the "Market Value Determinations"), Landlord and Tenant shall attempt to reach agreement on the applicable Market Value Determinations within one (1) month after the occurrence of the Taking (in the case of Section 23(b)), or one (1) month after the conclusion of the condemnation proceedings (in the case of Section 23(d)), as applicable. If Landlord and Tenant are unable to agree in writing on the applicable Market Value Determinations prior to the applicable deadline, then the applicable Market Value Determinations shall be made by appraisal as hereinafter set forth. Such appraisal procedure shall be commenced by one party delivering to the other a notice appointing its appraiser. Within fifteen (15) days after receipt of such notice, the other party shall appoint its appraiser and give notice of such appointment to the first party. Any appraiser appointed hereunder shall be a member of the American Institute of Real Estate Appraisers (or successor organization) having at least five (5) years' experience in appraisal of real estate for commercial retail use in the Denver metropolitan area and/or the Front Range area of Northern Colorado. If the party receiving such first written notice shall fail to appoint its appraiser within fifteen (15) days after receipt of the first written notice, the Market Value Determination by the single appraiser appointed by the party giving such first written notice shall be final, binding and conclusive on Landlord and Tenant. Each appraiser as applicable shall prepare a written appraisal with respect to the Market Value Determinations at issue. If within thirty (30) days after appointment of the two appraisers, as described above, the two appraisers are unable to reconcile their appraisals and agree in writing upon the Market Value Determinations, a third independent appraiser shall be chosen within fifteen (15) days thereafter with the mutual consent of such first two appraisers or, if such first two appraisers fail to agree upon the appointment of a third appraiser within such fifteen (15) day period, such appointment shall be 964286.7 34 made by the Judicial Arbiter Group of Denver, or any organization successor thereto. The third appraiser shall be subject to the same qualifications as are set forth above for the first two appraisers, provided that the third appraiser shall also be independent of and unaffiliated with Landlord and Tenant. The third appraiser when appointed shall proceed to determine in writing which of the first two appraisals is the more accurate reflection of the applicable Market Value Determinations, and those Market Value Determinations shall be established on the basis of the appraisal chosen. The fees and expenses of the appraiser appointed by Tenant shall be paid by Tenant; the fees and expenses of the appraiser appointed by Landlord shall be paid by Landlord; and the fees and expenses of the third appraiser shall be divided equally between Tenant and Landlord. Section 42. Counterpart Execution: Effective Date. This Lease shall be executed in multiple counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same agreement. The "Effective Date" of this Lease shall be the date upon which this Lease shall have been fully executed and delivered by both Landlord and Tenant and each of Landlord and Tenant have received a fully executed counterpart hereof. The party last executing this Lease shall deliver a fully executed counterpart (by both parties) to the other party by overnight courier for receipt on the next succeeding business day and shall insert as the Effective Date on all counterparts of this Lease such next succeeding business day. Section 43. Tenant Exclusive. During the term of this Lease, Landlord shall not permit or suffer any uses which are competitive with those permitted for the Demised Premises on any property that lies within a radius of one (1) mile from the Demised Premises and is owned, controlled, or managed by Landlord or any affiliate of Landlord. For purposes of the foregoing, affiliates of Landlord shall include any entity which, by virtue of direct or indirect controlling ownership interests, is controlled by, controls or is under common control with Landlord, or any principals, owners, shareholders, partners, members, officers, directors, managers, employees or agents of Landlord or any such affiliate of Landlord, or any family members of any such parties. Section 44. Confidentiality. Notwithstanding anything contained herein to the contrary, Landlord will hold all financial or other Tenant information contained in this Lease or acquired from Tenant in confidence and will not disclose the same to any other party, except as set forth in Section 9(c), and also except that Landlord may reveal reported sales under Section 3(e) to any prospective mortgagee or purchaser of Landlord's interest in the Demised Premises or this Lease (and Landlordshall cause those parties to preserve confidentiality), ... .. . 964286.7 35 Section 45. Force Majeure. If Landlord or Tenant shall be delayed, hindered or prevented from the performance of any act required hereunder by reason of strikes, lock -outs, labor troubles, inability to procure materials, failure of power, restrictive governmental laws or regulations, riots, terrorist acts, public health concerns not in the control of Tenant that materially interfere with Tenant's operations at the Demised Premises, insurrection, the act, failure to act or default of the other party, war, or any reason beyond their control ("Force Majeure"), then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay; provided, however, the provisions of this Section 45 shall not operate to extend the date Landlord is required to deliver possession of the Demised Premises to Tenant or Landlord's observance of its covenants and representations hereunder concerning title and quiet enjoyment. Lack of funds shall not be a basis for avoidance or delay of any obligation under this Lease. Section 46. Holdover. Tenant shall pay Landlord one hundred fifty percent (150%) of the monthly Basic Rent payable for the month immediately preceding the holding over period for each month or portion thereof that Tenant retains possession of the Demised Premises, or any portion thereof, after the expiration of the term of this Lease (without reduction for any partial month that Tenant retains possession). The provisions of this Section 46 shall not constitute a waiver by Landlord of any re-entry rights of Landlord and Tenant's continued occupancy of the Demised Premises shall be on a month -to -month basis. LANDLORD: BURGER AVENUE INVESTMENTS, LLP, a Colorado registered limited liability partnership By: 964286.7 shorn, Managing Partner [TENANT'S SIGNATURE ON FOLLOWING PAGE] • 36 TENANT: J.D. CARPENTER COMPANIES, INC., an Iowa Corporation BfY`f lave Carpresident 964286.7 37 EXHIBIT A LEGAL DESCRIPTION PARCEL I: A TRACT OF LAND SITUATE IN THE NE 1/4 OF THE NE 1/4 OF SECTION 10, TOWNSHIP 2 NORTH, RANGE 68 WEST OF THE 6TH P.M., WELD COUNTY, COLORADO, DESCRIBED AS FOLLOWS: BEGINNING AT THE NE CORNER OF SAID SECTION 10, THENCE SOUTH 89 DEGREES 31' WEST 450 FEET ALONG THE NORTH LINE OF THE NE 1/4 OF SAID SECTION 10, THENCE SOUTH 30 FEET TO THE SOUTH RIGHT-OF-WAY LINE OF HIGHWAY NO. 119 (FORMERLY KNOWN AS HIGHWAY NO. 25), THE TRUE POINT OF BEGINNING; THENCE SOUTH 89 DEGREES 31' WEST 65 FEET ALONG SAID SOUTH RIGHT-OF-WAY LINE OF SAID HIGHWAY; THENCE SOUTH 45 DEGREES 05' WEST 234.1 FEET ALONG THE EASTERLY SIDE OF AN IRRIGATION DITCH; THENCE SOUTH 49 DEGREES 35' EAST 303.0 FEET; THENCE NORTH 362.7 FEET MORE OR LESS TO THE TRUE POINT OF BEGINNING EXCEPT THAT PARCEL IN RULE AND ORDER RECORDED JANUARY 19, 1995 AT RECEPTION NO. 2423540, COUNTY OF WELD, STATE OF COLORADO. ALSO EXCEPT THAT PORTION CONVEYED BY DEED RECORDED JANUARY 15, 1971 AT RECEPTION NO. 1560570; together with all improvements thereon and appurtenances thereto. PARCEL II: THAT TRACT OF LAND LOCATED IN THE NE 1/4 OF SECTION 10, TOWNSHIP 2 NORTH, RANGE 68 WEST OF THE 6TH P.M., WELD COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NE CORNER OF SAID SECTION 10; THENCE ALONG THE NORTH LINE OF SAID NE 1/4 S 89 DEGREES 31' 00" WEST 450.00 FEET WHENCE THE NORTH 1/4 CORNER THEREOF BEARS S 89 DEGREES 31'00" WEST 2191.17 FEET; THENCE S 00 DEGREES 00' 00" EAST 392.20 FEET TO THE NORTHEAST CORNER OF THAT TRACT OF LAND KNOWN AS PARCEL 1 AS DESCRIBED BY DEED RECORDED AT RECEPTION #01932647 OF WELD COUNTY RECORDS AND THE POINT OF BEGINNING; THENCE S 90 DEGREES 00' 00" WEST 195.00 FEET; THENCE N 00 DEGREES 00' 00" WEST 166.02 FEET TO A POINT ON THE NORTHEASTERLY LINE OF THAT TRACT OF LAND KNOWN AS PARCEL 2 AS DESCRIBED BY DEED RECORDED AT RECEPTION #01932647 OF WELD COUNTY RECORDS; THENCE ALONG SAID NORTHEASTERLY LINE S 49 DEGREES 35' 20" EAST 256.10 FEET TO THE POINT OF BEGINNING, COUNTY OF WELD, STATE OF COLORADO; together with all improvements thereon and appurtenances thereto. 964266.7 EXHIBIT B TITLE EXCEPTIONS 1. RIGHT OF PROPRIETOR OF A VEIN OR LODE TO EXTRACT AND REMOVE HIS ORE THEREFROM SHOULD THE SAME BE FOUND TO PENETRATE OR INTERSECT THE PREMISES AS RESERVED IN UNITED STATES PATENT RECORDED JUNE 25, 1890, IN BOOK 34 AT PAGE 332. 2. ACCESS RIGHTS CONVEYED BY INSTRUMENT RECORDED JANUARY 15, 1971 AT RECEPTION NO. 1560571. 3. EASEMENT GRANTED TO UNION RURAL ELECTRIC ASSOCIATION, INC., FOR ELECTRICAL FACILITIES, AND INCIDENTAL PURPOSES, BY INSTRUMENT RECORDED MAY 05, 1971, UNDER RECEPTION NO. 1578186. 4. EASEMENT GRANTED TO UNION RURAL ELECTRIC ASSOCIATION, INC., FOR ELECTRICAL FACILITIES, AND INCIDENTAL PURPOSES, BY INSTRUMENT RECORDED SEPTEMBER 06, 1972, UNDER RECEPTION NO. 1596958. 5. OIL AND GAS LEASE RECORDED JANUARY 21, 1976 UNDER RECEPTION NO, 1679348 AND ANY AND ALL ASSIGNMENTS THEREOF, OR INTERESTS THEREIN. 6. OIL AND GAS LEASE RECORDED MARCH 14, 1977 UNDER RECEPTION NO. 1713452 AND ANY AND ALL ASSIGNMENTS THEREOF, OR INTERESTS THEREIN. NOTE: EXTENSION OF THE ABOVE LEASE AS CLAIMED BY AFFIDAVIT OF PRODUCTION WAS RECORDED JULY 18, 1977 UNDER RECEPTION NO. 1724771 IN BOOK 803. 7. EASEMENT GRANTED TO THE MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, FOR COMMUNICATION FACILITIES, AND INCIDENTAL PURPOSES, BY INSTRUMENT RECORDED MAY 06, 1981, UNDER RECEPTION NO. 1856984. 8. TERMS, CONDITIONS AND PROVISIONS OF PERMANENT MAINTENANCE EASEMENT RECORDED SEPTEMBER 12, 1985 AT RECEPTION NO. 2024644. 9. EASEMENT GRANTED TO THE UNION RURAL ELECTRIC ASSOCIATION, INC., FOR ELECTRICAL FACILITIES, AND INCIDENTAL PURPOSES, BY INSTRUMENT RECORDED MARCH 26, 1987, UNDER RECEPTION NO. 2093402. 10. EASEMENT GRANTED TO THE UNION RURAL ELECTRIC ASSOCIATION, INC., FOR ELECTRICAL FACILITIES, AND INCIDENTAL PURPOSES, BY INSTRUMENT RECORDED MAY 12, 1988, UNDER RECEPTION NO. 2140931. 964286.7 11. TERMS, CONDITIONS AND PROVISIONS OF TEMPORARY EASEMENT RECORDED SEP 1'EMBER 23, 1993 AT RECEPTION NO. 2351682. 12. RIGHT OF WAY FOR IRRIGATION DITCH AS THE SAME EXISTS AND/OR IS USED. [If any of the foregoing Title Exceptions prove to be inapplicable, Landlord and Tenant will enter into an amendment to this Exhibit B deleting any inapplicable Title Exceptions.] 964286.7 2 EXHIBIT C MEMORANDUM LEASE FORM [To be established by Landlord and Tenant during the Due Diligence Period] 964286.7 NOTICE OF FIRST EXTENSION OF ENTITLEMENTS PERIOD AND AMENDMENT TO LEASE Landlord, Burger Avenue Investments, LLP, a Colorado registered limited liability partnership, and Tenant, J.D. Carpenter Companies, Inc., entered into a Ground Lease for 3914 Colorado Hwy 119, Longmont, Colorado, dated February 15, 2011 (the "Lease"). Section 2(d) of the Lease provides that if the Development Approvals and Permits (as defined in the Lease) are not obtained by 180 days after the execution of the Lease (August 15, 2011, since August 14, 2011, is a Sunday), Tenant shall have the right to extend the Entitlements Period (as defined in the Lease) for three (3) successive thirty (30) day periods. Tenant hereby gives Landlord notice that it is extending the Entitlements Period for its first additional thirty (30) days to and including September 15, 2011. Landlord hereby accepts this instrument as such notice. Tenant reserves the right to further extend the Entitlements Period as provided in Section 2(d) of the Lease. Landlord acknowledges and agrees that Tenant has presented and Landlord has approved the Concept Plans (as defined in and pursuant to the review under Section 9(a) of the Lease). The approved Concept Plans are identified as the Building and Fuel Canopy Elevations dated June 16, 2011, and the Site Plan dated April, 2011, both being prepared by Galloway, Project No. SH0000001. Tenant has previously deposited with Landlord the sum of $15,000 pursuant to Section 3(i) of the Lease as pre -paid rent. Landlord and Tenant acknowledge that under Section 2(d) of the Lease, the extension fee for this first extension of the Entitlements Period is $7500.00 and is non-refundable subject to the terms of Section 9(a) of the Lease. Landlord and Tenant now further agree that Landlord shall apply $7500.00 of the aforesaid $15,000 payment for this first extension period in satisfaction of the required extension fee, and shall deduct that sum from pre -paid rent, leaving the sum of $7500.00 as pre -paid rent. Except as modified hereby,. the Lease shall remain in full force and effect in accordance with its provisions. This agreement may be executed in counterparts, which together shall constitute one and the same instrument. Either party may make legal delivery of its signed counterpart by e-mail or facsimile transmission of a copy thereof. Dated this I \ day of August, 2011. LANDLORD: TENANT; BURGER AVENUE INVESTMENTS, LLP By: David L. Osborn, Managing Partner 994659.3 J.D. CARPENTER COMPANIES, INC. ti -6t -' ; By: f�Gt—'—�— Date Dave Carpenter, President 933 11111111111111111111111111111 111111111111111111 Ilil 1111 3798933 10/14/2011 04:48P Weld County, CO 1 of 3 R 21.00 D 0.00 Steve Moreno Clerk & Recorder SPECIAL WARRANTY DEED [Statutory Form - C.R.S. § 38-30-115] BURGER AVENUE INVESTMENTS, LLP, a Colorado registered limited liability partnership, formerly known as Burger Avenue Investments, Ltd. ("Grantor"), whose street address is 217 West Olive Street, Fort Collins, Colorado, Attention: David L. Osborn, for the consideration of Ten Dollars ($10.00) and other good and valuable consideration, in hand paid, hereby sells and conveys to BURGER AVENUE INVESTMENTS, LLP, a Colorado registered limited liability partnership ("Grantee"), whose street address is 217 West Olive Street, Fort Collins, Colorado, Attention: David L. Osborn, the real property in the County of Weld and State of Colorado that is described on Exhibit A attached hereto and made a part hereof, with all its appurtenances, and warrants the title to the same against all persons claiming under Grantor, subject to the matters set forth on Exhibit B attached hereto and made a part hereof. Signed this $1^. day of C) ' " , 2011. STATE OF COLORADO ) COUNTY OF L-{ U t McAl- ) ss. BURGER AVENUE INVESTMENTS, LLP, a Colorado registered limited liability partnership (executing both as Grantor and Grantee, and, in its capacity as Grantor, formerly known as Burger Avenue Investments, Ltd. David L. Osborn, Managing Partner The foregoing instrument was acknowledged before me this t, l day of , 2011 by David L. Osborn, Managing Partner of Burger Avenue Investments, LLP, a Colorado registered limited liability partnership. Witness my hand and official seal. commission expires: JEANNE T. SANFORD Notary Public State of Colorado fj� R±li.41EJM Ftblres November 16, 2013 ?Fsiz Pu c Notary Convenience deed; consideration less than $500; no documentary fee required 998153.i -t,U1til l U s THE OSBORN LAW FIRM, LLC 217 West Olive P.O. Box 2003 Fort CoUUins, CO R0522 11111 I1111I 11I11111 11111 11111 11111111 1111 1111 3798933 10114/2011 I 1 011 04:48P Weld County, CO 2 of 3 R 21.00 D 0.00 Steve Moreno Clerk & Recorder Exhibit A LEGAL DESCRIPTION PARCEL I: A TRACT OF LAND SITUATE IN THE NE 1/4 OF THE NE 1/4 OF SECTION 10, TOWNSHIP 2 NORTH, RANGE 68 WEST OF THE 6TH P.M., WELD COUNTY, COLORADO, DESCRIBED AS FOLLOWS: BEGINNING AT THE NE CORNER OF SAID SECTION 10, THENCE SOUTH 89 DEGREES 31' WEST 450 FEET ALONG THE NORTH LINE OF THE NE 1/4 OF SAID SECTION 10, THENCE SOUTH 30 FEET TO THE SOUTH RIGHT-OF-WAY LINE OF HIGHWAY NO. 119 (FORMERLY KNOWN AS HIGHWAY NO. 25), THE TRUE POINT OF BEGINNING; THENCE SOUTH 89 DEGREES 31' WEST 65 FEET ALONG SAID SOUTH RIGHT-OF-WAY LINE OF SAID HIGHWAY; THENCE SOUTH 45 DEGREES 05' WEST 234.1 FEET ALONG THE EASTERLY SIDE OF AN IRRIGATION DITCH; THENCE SOUTH 49 DEGREES 35' EAST 303.0 FEET; THENCE NORTH 362.7 FEET MORE OR LESS TO THE TRUE POINT OF BEGINNING; EXCEPT THAT PARCEL IN RULE AND ORDER RECORDED JANUARY 19, 1995 AT RECEPTION NO. 2423540, COUNTY OF WELD, STATE OF COLORADO; AND FURTHER EXCEPT THAT PORTION CONVEYED BY DEED RECORDED JANUARY 15, 1971 AT RECEPTION NO. 1560570. PARCEL II: THAT TRACT OF LAND LOCATED IN THE NE 1/4 OF SECTION 10, TOWNSHIP 2 NORTH, RANGE 68 WEST OF THE 6TH P.M., WELD COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NE CORNER OF SAID SECTION 10; THENCE ALONG THE NORTH LINE OF SAID NE 1/4 S 89 DEGREES 31' 00" WEST 450.00 FEET WHENCE THE NORTH 1/4 CORNER THEREOF BEARS S 89 DEGREES 31'00" WEST 2191.17 FEET; THENCE S 00 DEGREES 00' 00" EAST 392.20 FEET TO THE NORTHEAST CORNER OF THAT TRACT OF LAND KNOWN AS PARCEL 1 AS DESCRIBED BY DEED RECORDED AT RECEPTION #01932647 OF WELD COUNTY RECORDS AND THE POINT OF BEGINNING; THENCE S 90 DEGREES 00' 00" WEST 195.00 FEET; THENCE N 00 DEGREES 00' 00" WEST 166.02 FEET TO A POINT ON THE NORTHEASTERLY LINE OF THAT TRACT OF LAND KNOWN AS PARCEL 2 AS DESCRIBED BY DEED RECORDED AT RECEPTION #01932647 OF WELD COUNTY RECORDS; THENCE ALONG SAID NORTHEASTERLY LINE S 49 DEGREES 35' 20" EAST 256.10 FEET TO THE POINT OF BEGINNING, COUNTY OF WELD, STATE OF COLORADO. Parcels I and II described above constitute contiguous parcels, such contiguity being depicted in that survey recorded in the Weld County, Colorado (the "County") real property records on September 16, 2011, at Reception No. 3792832. Grantor and Grantee, for themselves and their successors in interest, and as a covenant and restriction running with the land for the benefit of the County, agree that Parcels I and II described above (i) shall constitute one unified parcel for purposes of the County's subdivision ordinances and regulations, and (ii) may not be transferred separately from one another unless they are subsequently resubdivided in accordance with the County's subdivision ordinances and regulations. A-1 938153.1 1111111 1III 111111 111111 (fill 111ff 111111111111111111111 3798933 10/14/2011 04:48P Weld County, CO 3 of 3 R 21.00 D 0.00 Steve Moreno Clerk & Recorder Exhibit B TITLE EXCEPTIONS 1. Taxes for the year 2011 and subsequent years, a lien not yet due and payable. 2. All easements, encumbrances and other matters of record. 998153.1 B-1 APPLICATION FOR THE TRANSFER OF A FERMENTED MALT BEVERAGE OFF -PREMISES (COUNTY) LIQUOR LICENSE - 7 -ELEVEN, INC., DBA 7 -ELEVEN STORE 39510H Diagrams of the Premises 65'-0" EXIT EE EXIT STORAGE Q 1 BIER ll STORAGE COOLER 0 0 0 0 2 ROLLER GRILL GRRu b 0 CORP C. J COL 39510 LONGMONT, CO - EQUIPMENT LAYOUT 2 ® OFFICE 0 MEN �I I N® I BACKROOM I I � I I I L J L__ 40. ADJACENT TENANT WOMEN J Io 3914 COLORADO HIGHWAY 119 PAYOUT INFORMATION ROLLER GRILLS SANDWICH CASE VAULT DOORS LOW TEMP DOORS ICE MERCHANDISER NOVELTY CASE BAKERY CASE SLURPEE BARRELS 2 CID 12 2 DR 1 DR 1 DR 2 6 GONDOLA UNITS 27 END CAPS 7 HIGHWALLS 0 TOTAL 34 TOTAL SQ FT = 2,953 SALES FLOOR AREA = 1,669 HFA 11“. 1111 I t' `;cl\1I it', EXPING PRELIMINARYGOH I N THESE ORAWIHOS ARE LASED ON OMWANOS 01D OR INFORMATION PRONGED TO REAM THE OMER ORTHE OWNER'S DULY AVMOROEO REPRESENTATIVE HER KO ROT ROT REND VERIFIED TIE IDOSRIMO SPS'N" CNSISILITV' FOR THE ACCURACY AANO RE COMPLETENESS OF THIS (,FORMATION. F." WELD COUNTY hifigaig ONLINE' N1.AI f INC; 7-EHeven, Inc. cno I I. SPR17-0010 AM SPR-288 n!! R GiS PRODUCTION'FAC:!_R'.'a==_jai i SPR-30cSPR=235 ,''rWc ' rZ-'07=103.i • t �-. r-linlhi 11C Cre IL dillbly t] i t '"!I1st I • A.h SPR-2845PR-1 7,5 • Ur "US..4. 117 ++ w ♦ T titter_ • 1 / J I \ I 1 - t_ - - C;?R-.35st274rAM SPR-203 JUNIPER P t SPR-104 SPR-201 estone 1 U0 Year A ..'\Aar IaII\Oil LIDL_ 2,234.7 0 WGS_1984_Web_Mercator_Auxiliary_Sphere C? Weld County Colorado 1,117.34 2,234.7 Feet This map is a user generated static output from an Internet mapping site and is for reference only. Data layers that appear on this map may or may not be accurate, current, or otherwise reliable. THIS MAP IS NOT TO BE USED FOR NAVIGATION Legend L_J Parcels USR - Uses by Special Revievk SPR - Site Plan Review Floodplain - 500 Year Floodplain - 100 Year Zone A Floodplain - 100 Year Floodwa Floodplain - 100 Year Zone AE Floodplain - 100 Year Zone AI- Floodplain - 100 Year Zone AC Address Label Highway County Boundary Notes 3914 State Highway 119, Longmont, CO 80504 This map is a user generated static output from an Internet mapping site and is for reference only. Data layers that appear on this map may or may not be accurate, current, or otherwise reliable. THIS MAP IS NOT TO BE USED FOR NAVIGATION This map is a user generated static output from an Internet mapping site and is for reference only. Data layers that appear on this map may or may not be accurate, current, or otherwise reliable. THIS MAP IS NOT TO BE USED FOR NAVIGATION 3/24/2020 Property Report Weld County PROPERTY PORTAL Property Information (970) 400-3650 Technical Support (970) 400-4357 Account: R5588586 March 24, 2020 Account Information Account Parcel Space Type Account Tax Year Buildings Actual Value Assessed Value R5588586 131310100012 1 Commercial 2020 1 1.759.720 510.320 Legal 25107C PT NE4 10 2 68 BEG AT PT S89031'W 450' & 30'S OF NE COR S89D31'W 65' S45O05'W 234.1' S49D35'E 303' N362.7' TO BEG EXC PARCEL AWARDED TO HWY DEPT Subdivision Block Lot Land Economic Area -- DEL CAMINO HIGH VIEW Property Address Property City Zip Section Township Range 3914 119 HIGHWAY WELD 10 02 68 Owner(s) Account Owner Name Address l_ R5588586 INVESTMENTS BURGER AVENUE LLP 217 CO W OLIVE 805212714 ST FORT COLLINS. Document History https://propertyreport.co.weld.co.us/?account=R5588586 1/6 3/24/2020 Property Report Reception 1 Rec Date Type Grantor Grantee Doc Fee Sale Date Sale Price 01966823 05-14-1984 WDN 0.00 01-01-1900 0 1706448 12-21-1976 COZ WELD COUNTY ZONING CASE ZONING Z-106* C-3 0.00 0 2067157 08-29-1986 WD SCHRADER OIL CO BURGER AVENUE INVESTMENTS LTD 35.00 08-25-1986 350.000 3798933 10-14-2011 SWDN INVESTMENTS BURGER AVENUE LLP BURGER AVENUE INVESTMENTS LLP 0.00 10-11-2011 0 3853848 06-20-2012 SPR SITE REVIEW PLAN SPR-445 0.00 0 X0012915 05-14-1984 CON UNK INVESTMENTS BURGER AVENUE LTD 17.00 05-14-1984 170.000 Building Information Building 1 AccountNo Building ID Occupancy R5588586 1 Convenience Store ID Type NBHD Occupancy % Complete Bedrooms Baths Rooms 1 Commercial 3919 F Convenience Store 100 0 0 0 ID Exterior .t_ Roof Cover Interior HVAC Perimeter Units Type Unit Make Flat Package Unit 296 0 https://prcpertyreport.co.weld.co.us/?account=R5588586 2/6 3/24/2020 Property Report ID Square Ft Condo SF Total Basement SF Finished Garage SF Carport SF Balcony SF Porch SF Basement SF 1 4.292 1 0 0 0 0 0 0 0 Built As Details for Building 1 ID Built As Square Ft Year Built Stories Length Width 1.00 Convenience Store 4.292 1986 1 0 Additional Details for Building 1 ID Detail Type Description Units 1 Add On Asphalt 17.100 1 Add On Com Canopies Steel Average 3,360 1 Add On Concrete Slab 4.500 Valuation Information Type Yp Code Description p Actual Value Assessed Value Acres Land SqFt q 2212 MERCHANDISING- IMPROVEMENT 1.048.901 304.180 0.000 0 Improvement Improvement 2230 IMPROVEMENTS SPECIAL PURPOSE- 387.950 112,510 0.000 0 Land 2130 SPECIAL PURPOSE -LAND 322,869 93,630 1.037 45,156 Totals - - 1,759,720 510,320 1.037 45,156 Comparable sales for your Residential property may be found using our SALES SEARCH TOOL https://propertyreport.co.weld.co.us/?account=R5588586 3/6 3/24/2020 Property Report Tax Authorities J Tax Area District ID District Name Current Mill Levy 2341 1050 HIGH PLAINS LIBRARY 3 217 2341 0311 LEFT HAND WATER 0 000 2341 1202 LONGMONT CONSERVATION 0 000 2341 0512 MOUNTAIN VIEW FIRE RESCUE DISTRICT 16 247 2341 0301 NOMRTHERN COLORADO WATER 1 000 2341 0213 SCHOOL DIST RE1J-LONGMONT 57 559 2341 0620 ST VRAIN SANITATION 0 484 2341 0100 WELD COUNTY 15 038 Total - - 93 545 Photo https //propertyreport co weld co us/7account=R5588586 4/6 3/24/2020 Property Report Sketch https://propertyreport.co.weld.co.us/?account=R5588586 5/6 3/24/2023 Property Report 20.7' n; rt 23.6' R/R R/R 11.9' 36.5' Storage 55.7' Office Building 1 Page 1 First Floor 4292.4 sf 16` to 18' WH Cooler 37 Copyright © 2020 Weld County, Colorado. All rights reserved. Privacy Policy & Disclaimer J Accessibility Information https://propertyreport.co.weld.co.us/?account=R5588586 6/6 APPLICATION FOR THE TRANSFER OF A FERMENTED MALT BEVERAGE OFF -PREMISES (COUNTY) LIQUOR LICENSE - 7 -ELEVEN, INC., DBA 7 -ELEVEN STORE 39510H Background Investigation STATE OF COLORADO DEPARTMENT OF REVENUE Liquor Enforcement Division Business Location 1881 Pierce Street, Suite 108A Lakewood, Colorado 80214 Phone (303) 205-2300 FAX (303) 205-2341 E-mail: LED@dor.state.co.us Website: www.colorado.00v/revenue/liquor February 07, 2013 7 -Eleven Inc 7 -Eleven PO Box 219088 Dallas TX 75221 John Hickenlooper Governor Barbara J. Brohl Executive Director Don 3urmania Division Director Re: State Master File for 7 -Eleven Inc Account # 24111110000 Dear Sir or Madam: This is to advise you that the Colorado Liquor Enforcement Division ("Division") has, at your request, created a "master file" for the above -listed Licensee. As of the date of this letter our master file includes the following items which you have submitted: 1. Individual History Records (Form DR 8404-I) for the following persons: Joseph M. DePinto Stanley W. Reynolds Rankin L. Gasaway 2. Fingerprint cards bearing the names and birth dates of the persons listed in paragraph 1, above. All the fingerprint cards have been submitted by us to the Colorado Bureau of Investigation. ,The CBI and FBI have checked the prints and reportedly found no record of any criminal history for those listed above. Certificate of Authority or a Certificate of Good Corporate standing from the Colorado Secretary of State which indicates that 7 -Eleven Inc is a corporation authorized to do business in Colorado. 7 -Eleven Inc Page 2 When filing a new application for additional licensed locations, you must check with the local licensing authority to determine what documents they may require to process your application. Please feel free to provide them with this letter, as many local authorities will not require you again to submit fingerprint cards to them if you have already submitted such documents to the Division. This letter will serve to inform the local authorities exactly which documents you have already submitted to the State Enforcement Division. Finally, once the local authority has approved your new license or transfer of ownership application, it must be sent to the Division. The local authority need not send change of corporate structure information previously reported to the Division, as listed in and approved by this letter. The only documents which are needed for a new or transfer of ownership application by the Division are: 1. The approved application signed by the local authority; 2. The appropriate fees; 3. A copy of this letter; 4. Proof of possession of the premises; 5. A diagram of the licensed premises; 6. Completed form DR 8442, and an Individual History Record (DR -8404-I) if manager's registration is required. Sincerely, Don Burmania Division Director 7-ElevenMF.doc �R a4o4-1 (01)06/05) :OLORADO DEPARTMENT OF REVENUE JQUOR ENFOfYOEMENT DIVISION B81 MERGE STREET RM 10aA )ENVER CO 80261 BY DILL DILL CARR STONBRAY.ER & HU T CHINGS. P.C. (303) 777.3737 INDIVIDUAL HISTORY RECORD b be completed by each individual applicant, all general partners of'a partnership, and limited partners owning 10% (or more) of partnership; all officers and directors of a corporation,. and stockholders of a corporation owning 10% (or more) of the stock. of ;uch corporation; all limited liability company MANAGING members, and officers or other limited liability company members vith a 10% (or more) ownership interest in such company and all managers of a Hotel and Restaurant or a Tavern License. NOT10E; This individual history record provides basic information which is necessary for the licensing authority. Investigation. All questions must be answered In their entirety or your application may be.delayed or not processed, EVERY answer you give will be checked for its truthfulness. A deliberate falsehood or omission will jeopardize the application as such falsehood within itself constitutes evidence regarding the character of the applicant 1. Name of Business 7 —Eleven, Inc. 2. Your Full Name (last, first, middle) DePinto, Joseph Michael 4. Mailing address (if different from residence) same as below. a. List any other names you have used. None Home Telephone .(817) 481=3376 5. List all residence addresses below. Include current and previous addresses for the past five years. STREET AND NUMBER CITY, STATE, ZIP Southlake TX '76092 Current 1128 "Me; lot Dr Previous 502 Wtnyan Lane 6. List all current and former employers or businesses engaged In within the last five years (Attach separate sheet if necessary) ADDRESS (sTREET, NUMBER, CITY, STATE, ZIP) POSITION HELD ,5.',. 2711 N. Hascel1 Ave , Dallas TX CEO /Pres? dent 76051 625 Westport Pkwy. Grapevine, `i'X Dr esident • 7 2-04 2711 N. Haskell Ave., Dal las, TX Vide President 5 /2002. NAME OF EMPLOYER 7 —Eleven Inc. G ameStop Cori). 7 —Eleven . Inc . 7. List the name(s) of relatives working in or holding a financial interest in the Colorado alcohol beverage Industry. POSITION HELD Louisville, KY 40223 8/1983 NAME OF RELATIVE RELATIONSHIP TO YOU Present 5/20 02 FROM. 12/05 3./05 a. Have you ever applied for, held, or had an interest in a State of Colorado Liquor or Beer License, or loaned money, furniture or fixtures, equipment nr inventory, to any liquor or beer licensee? If yes, answer in detail. ®Yes O No Mr. Da? into was on previous Master File for 7 -Eleven, Inc, 3-2005 to 3-2005 as corporate officer.' S, Have you ever received aviolation notice suspension or revocation, for a liquor law violation, or have you applied for or been denied a liquor or beer license anywhere In the U.S.? If yes, explain in detail, DYes ® No . Have you ever been convicted of a crime or received a suspended sentence, deferred sentence, or forfeited bait for any offense in criminal or military court do you have any charges pending? Include arrests for DUI and DWAI, (If yes, explain in detail.) Yes allo Are you currently under probation (supervised or unsupervised), parole, or completing the requirements of a deferred sentence? (if yes, explain In detail.) ] Yes [ No • . Have you ever had any STATE issued licenses suspended, revoked, or denied including a drivers license? (If .yes, explain in detail.) ] Yeso • PERSONAL AND FINANCIAL INFORMATION • Unless otherwise provided by law in.24-72.204 C.R.S., informaton provided below will be treated as CONFIDENTIAL, olorado liquor licensing authorities require the following personal Information in order to determine your suitability for licensure pursuantto 12-47-307 C.R.S. a. Date of Birth b. Social Security Number SSN c. Place of Birth d. U,S,.Citizen? , Chicago, IT. Mires If Naturalized, State where N/A Naturalization Certificate Number N/A I. Height 5'10" rn. Weight 2O5 i. Date of Certification N/A n. Hair.Color o. Eye Color Brown Blue p. Sex M f. When N/A j. If an Alien, Give Allen's Registration Card Number N/A . . g. Name of District Court N/A • q. Race ' C k. Permanent Residence Card Number N/A r.• Do,you have a current Driver's License? If so, give number and state EYes Owe Financial Informa₹ion. Total purchase price $ N/A utnership, limited liability company, other $ N/A (if buying an existing business) or.invesiment being made by the applying entity, corporation, List the total amount of your investment in this business including any notes, loans, cash, services or equipment, operating capital, ock purchases and fees paid'$ NIA ' No .personal investment . . Provide details of Investment. You must account for the sources of ALL cash (how acquired). Attach a separate sheet if needed, ype:. Cash, Services or Equipment Source:Name of Bank; Account Type and Number N/A Nf A Amount 1. Loan Information (attach copies of all notes or loans) Narne of Lender and Account Number Address Terrri Security N/A N/A N/A 'N/A • N/A Amount N/A Give name of bankwnere business account will be maintained; Account Name•and.Account Number; and the name or names of persons �+ tfhnrive rl to r{mw thormnn N/A - Oath. of Applicant i declare under penalty of perjury in the second degree that this application and all attachrnenta are true, correct, and complete to the best of my knowledge. Author eqltrtk., T_' {• oderi'ci L'r Date , ATTACHMENT TO INDIVIDUAL HISTORY RECORD JOSEPH MICHAEL DEPINTO DIRECTOR, PRESIDENT & CEO, 7 -ELEVEN, INC. QUESTION #6 Employer Address Position From To Thornton Oil Corp, ' 101 Linn Station Road LOuisville, KY.40223 Sr, VP & COO 9-1995 3-2002 DR 8404-I (01/06/05) COLORADO DEPARTMENT DF REVENUE LIQUOR ENFORCEMENT DIVISION 1861 PIERCE STREET RM leak DENVER CO 80261 BY DILL DILL CARR STc7Ng ra.,� AN 1 (303)777-3737 RAKER & HUTCHINGS, P.C. INDIVIDUAL HISTORY RECORD ro be completed by each individual applicant, all general partners of a partnership, and limited partners owning 10% (or more) of s partnership; all officers and directors of a corporation, and stockholders of a corporation owning 10% (or more) of the. stock of such corporation; all limited liability company MANAGING members, and officers or other limited liability company members /pith a 10% (or more) ownership interest in such company and all managers of a Hotel and Restaurant or a Tavern License, NOTICE; This individual history, record provides basic information which is necessary for the licensing authority investigation, All questions must be answered in their entirety or your application may be delayed'or not processed. EVERY answer you give will be checked for its truthfulness. A deliberate falsehood or omission will jeopardize the application as such falsehood within itself constitutes evidence regarding the character of the applicant. 1. Name of Business 7—Eleve ' 2. Your Full Name (last, first, middle) Reynolds, Stanley Wayne 4. Mailing address (if different from residence) sane as below 3. List any other names you have used. None Home Telephone 972-304-L0211_ ' ' 5. List all residence addresses below. Include current and previous addresses for the past five years. STREET NUMBER AND Current CITY, STATE, ZIP FROM TO . 429 Avalon Lane Coppell, TX 75019 612002 Pres en. Previous 705 Post Oak Drive Coppell, TX 75019 1/1994 6/2OO2 . List all current and former employers or businesses engaged in within the last five years (Attach separate sheet if necessary NAME OF EMPLOYER —F. l P veil . TT1 ADDRESS (STREET, • SVP, GFO (various) . - 2711 N. Haskell Ave, Dallas,. TX75204 11 1997 reses.t NUMBER, CITY, STATE, ZIP) POSITION HELD FROM to 7. List the name(s) of relatives working in or holding'a financial interest In the Colorado alcohol beverage industry, NAME OF RELATIVE RELATIONSHIP TO YOU POSITION HELD NAME OF LICENSEE None N/A N/A N/A B. Have you ever applied for, held, or had an interest in a State of Colorado Liquor or Beer License, or loaned money, furniture or fixtures, equipment or inventory, to any liquor or beer licensee? if yes, answer in detail. ❑Yes xi No S. Have you ever received a violation notice suspension or revocation,for a liquor law violation, or have you applied'tor or been denied a. liquor or bear [� Yes [i] No license anywhere in the U.S.? Ifyes, explain in detail. . Have you ever been convicted of a crime or received a suspended sentence, deferred sentence, or forfeited ball for any offense in criminal or military court do you have any charges pending? Include arrests for DUI and DWAI, (If yes, explain in detail) Yes ( No Are you currently under probation (supervised or unsupervised), parole, or completing the requirements of a. deferred sentence? (if yes, explain in detail.) iYes No , Have you ever had any STATE issued licenses suspended, revoked, or denied including a.drivers license? (if yea, explain in detail) Yes ®.No PERSONAL AND FINANCIAL INFORMATION Unless otherwise provided by law in 24-72-204 C,R,S,, information provldedbelow will be treated as CONFIDENTIAL, )lorado liquor licensing authorities require the following personal Information In order to determine your suitabliityfor lIcensurs pursuant to 12-47.307 C,R.5, a Date of Birth b. Social security Number SSW f Naturalized, State where N/A c, Place of Birth d. U.S, Citizen? Arkadelphia, ,A r 5a.. 5•MYes []No naturalization Certificate Number Helght '11" M. Weight • 180 I. Date of Certification N/A n: Hair Color o. Eye Color Blonde 'Green p. Sex . M f. When g. Name of District Court j. If an Alien, GlveAlieh's Registration Card Number k. Permanent Residence card Number N/A . N/A q, Race • •r.•Do you have a current Driver's License? If so, give numberand state C I ®Yes ❑•No Financial Information. total purchase price $ N/A• (if buying an existing business) or inve'stmentbeing made by the applying entity, corporation, tnership, limited liability company, other $ N/A _1st the total amount of your investment in this business including any notes; loans, cash, services or equipment, operating capital, ck purchases and fees paid$ N/A No personal investment: Provide details of Investment, You must account for the sources of ALL cash (how acquired). Attach a'separate sheet if needed,. pa: Cash, Services or Equipment Source:Name of Bank; Account Type and Number WA • N/A Amount .JA Loan Information (attach copies of all notes or loans lame of Lender and Account Number Address Term Security N/A N/A N/A N/A Amount NIA Grve name of bank where business account will be mafntamect; Account Name and Account Number; and the name or names of persons at itheri-ra l to rlrow thror,n N/A Oath of Applicant Ieclare under penalty of perjury in the second degree that this appiibation and all attachments are true, correct, and complete to the best of y knowledge, P LIQUOR EN FORCEMENT DIVISION i e el Pi ERCE STREET RM io6A D ENVER CO 80261 INDIVIDUAL HISTORY RECORD 1"a be completed by the following persons, es applicable; sole proprietors; general partners regardless of percentage oWhershtp, and limited partners owning 10% or more of the partnership;.all principal officers Of a corporation, all directors of a corporation, and atiy stockholder of a corporation owning 10% or more of the outstanding stock; managing Members or officers of a imited liability company, and members owning 10% or more of the company; and any intended registered manager•of -tote) and Restaurant or Tavern class of retail license, IWbTICE: This individual history record requires information that is.necessary forthe licensing investigation or inquiry, All gUsstiona must be answered in their entirety or the license application may be delayed or denied, If a question is not applicable, please indicate so lay."N/A". Any deliberate misrepresentation or material omission May jeopardize the license application. d, Name of Business 7 -Eleven, Inc. 2. Your Full Name (last, first, middle) Gas away, Rankin Lee 4. Mailing address (if different from residence) 3. List any other names you have used. None . 1.722 Routh St., #1000, Da1Zas,'. TS 75201 S. List' current residence address. Include any previous addresses within the last five years (attach separate she • ETREETAND NUMBER ' CITY, STATE, ZIP FROM Current 6619 DupperCourt Dallas, TX 75252 3/1998 Previous . t • B. List all employment within the last five years, Include•anY se f emolovment. (Arlanh eonwr.I. ;,,,,...x i .: NAME OF EMPLOYER OR BUSINESS ADDRess (STREET, NUMVISER; CITY, STATE, ZIP) POSITION HELD FRol 7 -Steven Inc, 1722 .Routh'St. #1000 Dallas, TX 75201 SVP/GC/SEC . 8_ 1722 Routh St. #1000 • 7 -Eleven, Inc,. Dallas, TX 75201 VP/DEP GC 2- 1722 Routh St. #1000 7 -Eleven, Inc. ' Dallas, TX 75201 SR COUNSEL 12/9• 7 I ;mss Om nnmptc1 of r ,lath, a wnrlcine rn or helrlinrr 41...........i i..4......a :_ .� _ .. _ . Da a NAME OF RELATIVE RELATIONSHIP TO YOU POSITIONHEL_D NAME OFL.IC N/A — None • N/A N/A TO resent To resent 8/12 2/08 ENB�t" 8. Have you ever applied for, held, or had an interest In a Colorado Liquor or Beer License, or loaned money, furniture, fixtures, equiptrtent or Inventory to any licensee? If yes, answer in detail. • ❑Yes Ri No S. Have you in received Stti s7 If Yon es explainattspension , or revocation for a liquor lawviotation, or have you applied for or been denied a lig4otor beer • license anywhere ❑Yes X No „ uu yv...my= a„r uu4,yao Na„un l t VI ICOI axp,e,q,ri eetatl.) Dyes ®No w, a, 1y u„ense ,n criminal or military court OIi. Are you currently under probation (supervised or unsupervised), parole, or completing the requirements ora deferred sentence? (if yes, explain in detail.) yes ®No t2. Have you ever had any professional license suspended, revoked, or denied? (If yes, explain in detail.) Yes ® No i PERSONAL AND FINANCiAL INP0RMATI0N Uhiess otherwise provided by law, the personal. information required in question #13 will be treated as confidential. The personal information required in question #13 Is solely for ideritiflcatlon purposes. b, SoCiai Security Number BSN c, place of Birth • Au • usta, GA . f. When N/A. fah. Date of Birth a. If Naturalized; State where • MIXe' Naturalization CertitIc to Number N/A t: Height 6'O m, Weight 210 n. Hair color BROWN I4. Financial Information. - - a. Total purchase price; 0.00 (if buying an existing business) or investment being made byte applying ehlity, corporation. 3artnership, limited liability company, other $ N/A' — officer change solely 3. List the total arnountofyour investment In this business Including any notes, loans, cash, services or equipment, operating capital, stock purchases orfees paid $ 0.00 — No personal funds b sing invested. 0. Prot/ iidie details of the investment described in (4.6. You must account for all of the sources of this investment Attach a separate•sheet if needed. Type: Gah, Services or Equipment • source Amount: I. Date of Certification a. Eye Color) p. Sec BLUE I M g. Name of District Court N/A • J. If anAlien, Give Alien's Registration Card Number N/A . q. Race W d. U.S. Minn? ©Yes DNo k. Permanent Residence card Number r. Do.you have a current Driver's License? If so, give number and state ®Y es °No 05438717' ( ' N%A d. Loan. Information (attach Copies of all notes or loans Name of Lender Address Term Security None •_ N/A • N/A. N/A —0= Amount —0— Oath of Applicant declare under penalty of perjury that this application and all attachments are true, correct, and complete to the best of my knowiedge, Authorized sl•n-'•re Title• SVP/GC/SEC Date • Dg Chloe Rempel From: Sent: To: Subject: Chloe, Bob Choate Tuesday, March 24, 2020 2:07 PM Chloe Rempel RE: Master File - Establishing the Good Moral Character of Liquor License Applicants I wouldn't call it a "waiver", but rather the County can rely upon the State's determination that the good moral character of the applicant's employee is not at issue, and therefore the IHR and character references for the employee are not necessary. Thanks, Bob Choate Assistant Weld County Attorney (970) 400-4393 From: Chloe Rempel <crempel@weldgov.com> Sent: Tuesday, March 24, 2020 2:04 PM To: Bob Choate <bchoate@weldgov.com> Subject: Master File - Establishing the Good Moral Character of Liquor License Applicants Good afternoon, Because the Colorado Liquor Enforcement Division determined it sufficient for master file licensees to complete Individual History Records (IHR) and submit to criminal background checks, and that the application documents themselves can be signed by an employee of the corporation with power of attorney without having to also submit to an IHR and criminal background check, would the County as the local licensing authority waive the requirement for letters of character reference given that the master file confirmed the good moral character of the applicant already? Thank you, Chloe A. Rempel Deputy Clerk to the Board Supervisor Weld County 1150 0 Street Greeley, CO 80631 tel: 970-400-4213 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the i APPLICATION FOR THE TRANSFER OF A FERMENTED MALT BEVERAGE OFF -PREMISES (COUNTY) LIQUOR LICENSE - 7 -ELEVEN, INC., DBA 7 -ELEVEN STORE 39510H Notices March 24, 2020 CLERK TO THE BOARD PHONE: (970) 400-4225 FAX: (970) 336-7233 1150 O STREET P.O. BOX 758 GREELEY, COLORADO 80632 www.weldgov.com ATTN: KEVIN COATES DILL, DILL, CARR, STONBRAKER & HUTCHINGS, P.C. 455 SHERMAN STREET SUITE 300 DENVER, CO 80203 ATTN: 7 -ELEVEN LICENSING 7 -ELEVEN, INC. DBA 7 -ELEVEN STORE 39510A P.O. BOX 219088 DALLAS, TX 75221 RE: TEMPORARY PERMIT FOR APPLICATION TO TRANSFER LIQUOR LICENSE FROM CARPCO, LLC, AND 7 -ELEVEN, INC., DBA 7 -ELEVEN STORE 39510A, TO 7 -ELEVEN, INC., DBA 7 -ELEVEN STORE 39510H Dear Applicant: This is to advise you that the Weld County Board of Commissioners will hear your request for a Temporary Permit for the Application for the Transfer of a Liquor License at the property described as: 3914 State Highway 119, Longmont, Colorado 80504. The meeting is scheduled for Wednesday, March 25, 2020, at 9:00 a.m., in the Chambers of the Board of County Commissioners of Weld County, Colorado, Weld County Administration Building, 1150 O Street, Assembly Room, Greeley, Colorado 80631. The Weld County Administration Building is currently closed to the public and at this time, a teleconference hearing, has not been mandated. If you have any questions concerning this matter, please do not hesitate to contact me at (970) 400-4213 or crempel@weldgov.com. Sincerely, az244., a. Remtai Chloe A. Rempel Deputy Clerk to the Board Supervisor cc: Weld County Attorney's Office Chloe Rempel From: Sent: To: Cc: Subject Attachments: Good morning, Chloe Rempel Tuesday, March 24, 2020 12:28 PM Rebecca Spencer Kevin Coates Notice of Hearing for Temporary Permit - 7 -Eleven Store 39510H Notice of Hearing for Temporary Permit - 7 -Eleven Store 39510A.pdf Good news — the State is not requiring an IHR and background check, and based on the State's reasoning, our County Attorney's Office is inclined to agree. The hearing to consider your client's Temporary Permit is scheduled for Wednesday, March 25, 2020, at 9:00 a.m. in the Chambers of the Board of County Commissioners (letter attached). At this time, the Weld County Administration Building is closed to the public and the County Attorney's Office is not mandating attendance of you or your clients via teleconference. If approved, I'll email a copy of the Temporary Permit once signed. Sincere regards, Chloe A. Rempel Deputy Clerk to the Board Supervisor Weld County 1150 O Street Greeley, CO 80631 tel: 970-400-4213 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. 1 Chloe Rempel From: Sent: To: Cc: Subject: Attachments: Good morning, Chloe Rempel Tuesday, March 24, 2020 12:29 PM connie.soria@7-11.com Rebecca Spencer Notice of Hearing for Temporary Permit - 7 -Eleven Store 39510H (Formerly 39510A) Notice of Hearing for Temporary Permit - 7 -Eleven Store 39510A.pdf This is to advise you that the Weld County Board of Commissioners will hear your request for a Temporary Permit for the Application for the Transfer of a Liquor License at the property described as: 3914 State Highway 119, Longmont, Colorado 80504. The meeting is scheduled for Wednesday, March 25, 2020, at 9:00 a.m., in the Chambers of the Board of County Commissioners of Weld County, Colorado, Weld County Administration Building, 1150 O Street, Assembly Room, Greeley, Colorado 80631. The Weld County Administration Building is currently closed to the public and at this time, a teleconference hearing, has not been mandated. Please see the attached letter for further information — hard -copies have been mailed to both you and your attorney. Sincere regards, Chloe A. Rempel Deputy Clerk to the Board Supervisor Weld County 1150 O Street Greeley, CO 80631 tel: 970-400-4213 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. 1 WELD COUNTY LIQUOR LICENSE CERTIFICATE OF MAILING FIRST NAME LAST NAME COMPANY ADDRESS 1 CITY STATE POSTAL CODE ATTN: 7 -ELEVEN LICENSING 7 -ELEVEN, INC. DBA 7 -ELEVEN STORE 39510A P.O. BOX 219088 DALLAS TX 75221 connie.soria@7-11.com ATTN: KEVIN COATES DILL, DILL, CARR, STONBRAKER & HUTCHINGS, P.C. 455 SHERMAN STREET SUITE 300 DENVER CO 80203 rspencer@dillanddill.com; kcoates@dillanddill.com I hereby certify that I have sent a notification of hearing date letter in accordance with the notification requirements of Weld County in the United States Mail, postage prepaid First Class Mail by letter as addressed on the attached list this 24th day of March, 2020. Chloe A. Rempel Deputy Clerk to the Board Supervisor APPLICATION FOR THE TRANSFER OF A FERMENTED MALT BEVERAGE OFF -PREMISES (COUNTY) LIQUOR LICENSE - 7 -ELEVEN, INC., DBA 7 -ELEVEN STORE 39510H Receipts ADDRESS 95S Sl va- "5-E r4-)2-4, FOR L]-QR I MOIL as i 3_ Ping 0 Poem; 8cs BY RECEIPT DATE 03/D010•QC) NO. 90934 RECEIVED FROM IJi 1 1. O i t I , Cyr i Stonbra1Ke_r 4- H u+6,;rnS ,1 c ADDRESS (15 5 She r n -et.') r'ee.+, . ?>p0. Otri , GO woQ03 Hunrlrrd F'+ -Sewnr Sahoo $ Sss'1. SO FOR -matR- coon- -irar ec L; Vor Lice -49e. SS1 50 Tempe Q 01 "7 rangy F rn + 3 Prtrn i Vs.8s BY ( 9Laa, RECEIPT DATE p 31 x,01 pZOQ.OD NO. 90935 RECEIVED FROM OA. I Q ; I 1 . C g_r r i CjK.44' d+ +cl,i f1S, Pc ,t u CO $oZO: (C.Gi- LAG 741, 20138 DILL DILL CARR STONBRAKER & HUTCHINGS PC PAY TO THE ORDER OF MEMO 455 SHERMAN STREET, SUITE 300 DENVER, COLORADO 80203 (303) 777-3737 Colorado Department of Revenue *** One Thousand Six Hundred Sixty Seven Colorado Department of Revenue SEVEE.875 Independent Bank 88-1632/1119 ******************************* .ecun Der E28HIELD' Mar 02, 2020 R U fC .n C O U) .co G) CD 1,667.50 cati 50/100 DOLLARS z V UTH•' ZED SIGNATURE V< 8 m ti - - L/x+•11.1'•: ialS1•l 1 ...Malta -WA U-'.: .'J.L7l.tr 14-••• + 11-"+.: tt11 t. +•1RL•J.1'lh'-'IS+ `.^141.1as at,+.Lt•a. DILL DILL CARR STONBRAKER & HUTCHINGS PC PAY TO THE ORDER OF MEMO 455 SHERMAN STREET, SUITE 300 DENVER, COLORADO 80203 (303) 777-3737 Weld County ' Eight Hundred Fifty Seven Weld County SEVEE.875 4 _ Independent Bank 88-1632/1119 *********************************************** C.j r1 r 20137 E ZSHIELo9 Mar 02, 2020 R 857.50 50/100 DOLLARS AUTHORIZED SIGNATURE U a) r " APPLICATION FOR THE TRANSFER OF A FERMENTED MALT BEVERAGE OFF -PREMISES (COUNTY) LIQUOR LICENSE - 7 -ELEVEN, INC., DBA 7 -ELEVEN STORE 39510H Miscellaneous Correspondence Chloe Rempel From: Sent: To: Subject: Attachments: Rebecca Spencer <rspencer@dillanddill.com> Thursday, May 14, 2020 11:43 AM Chloe Rempel RE: Application Form Correction DR8403 - FMB App 10.7.19CG 1.pdf Caution: This email originated from outside of Weld County Government. Do not click links or open attachments unless you recognize the sender and know the content is safe. Whoopsie! Thank you for catching that! Wild typing fingers... Here is the corrected page! Lead Paralegal Dill, Dill, Carr, Stonbraker & Hutchings, P.C. 455 Sherman St., Ste. 300 Denver. CO 80203 Direct Ph: 303-282-4130 Fax: 303-777-3823 Email: rspencer@dillanddill.com From: Chloe Rempel <crempel@weldgov.com> Sent: Thursday, May 14, 2020 11:27 AM To: Rebecca Spencer <rspencer@dillanddill.com> Subject: Application Form Correction Good morning, It looks like you selected 'Retail Fermented Malt Beverage On/Off-Premises (County)' as the license type you are applying for. The license at this location was previously an off -premises license, and pursuant to C.R.S. Section 44-4-104(1)(B)(III), is not eligible to apply for a new on/off-premises license. Can you please update the attached application page to select 'Retail Fermented Malt Beverage Off -Premises (County)'? Thank you, Chloe A. Rempel Deputy Clerk to the Board Supervisor Weld County 1150 0 Street Greeley, CO 80631 tel: 970-400-4213 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately 1 DR 8403 (09/25/19) COLORADO DEPARTMENT OF REVENUE Liquor Enforcement Division (303) 205-2300 RECEIVED MAR 19120 WELD COUNTY COMMISSIONERS Colorado Fermented Malt Beverage License Application ❑ New License ❑ New -Concurrent 5/ Transfer of Ownership • All answers must be printed in black ink or typewritten • Applicant must check the appropriate box(es) • Local license fee $ —(51.50 • Applicant should obtain a copy of the Colorado Liquor and Beer Code: www.colorado.gov/enforcement/liquor 1. rg ❑ Applicant is applying as a/an Corporation ❑ Partnership (includes Limited Liability and Husband and Wife Partnerships) Individual ❑ Limited Liability Company ❑ Association or Other 2. 7 -Eleven, Applicant(s) If an LLC, name of LLC; if partnership, at least 2 partners' names; if corporation, name of corporation Inc. FEIN 75-1085131 2a. 7 -Eleven Trade Name of Establishment (DBA) Store 39510H State Sales Tax No. 24111110488 Business Telephone 303-774-7668 3. 3914 Address of Premises (specify exact location of premises) Colorado Hwy 119 City Longmont County Weld State CO ZIP Code 80504 4. Attn: Mailing Address (Number and Street) 7 -Eleven Licensing, PO Box 219088 City or Town Dallas State TX ZIP Code 75221 5. connie.soria@7-11.com Email Address 6. If the premises currently has a liquor or beer license, you MUST answer the following questions Present 7 -Eleven Trade Name of Establishment (DBA) Store 39510A Present State License No. 04-00326 Present Class of License FMB Off Premises Present Expiration Date 06/07/2020 Section A Nonrefundable Application Fees Section B Fermented Malt Beverage Beer License Fees ❑ ❑ X Application Fee for New License $1,550.00 Application Fee for New License - w/Concurrent Review $1,650.00 Application Fee for Transfer $1,550.00 ❑ ❑ ❑ X ❑ ❑ ❑ Retail Fermented Malt Beverage On -Premises (City) $96.25 Retail Fermented Malt Beverage On -Premises (County) $117.50 Retail Fermented Malt Beverage Off -Premises (City) $96.25 Retail Fermented Malt Beverage Off -Premises (County) $117.50 Retail Fermented Malt Beverage On/Off-Premises (City) $96.25 Retail Fermented Malt Beverage On/Off-Premises (County) $117.50 Master File Location Fee $25.00 x To ❑ Master File Background $250.00 x Total Questions? Visit www.colorado.gov/enforcement/liquorfor more information Do Not Write In This Space - For Department Of Revenue Use Only Liability Information License Account Number Liability Date: License Issued Through: (Expiration Date) Total $ 1 Chloe Rempel From: Sent: To: Subject: Attachments: Rebecca Spencer <rspencer@dillanddill.com> Tuesday, March 31, 2020 8:29 AM Chloe Rempel control plan/7-11 39510H control plan.pdf Caution: This email originated from outside of Weld County Government. Do not click links or open attachments unless you recognize the sender and know the content is safe. Chloe, attached is the control plan from the field consultant for 7 -Eleven Store 39510H. Will there be a hearing to approve the transfer application before you send it to State? Thank you! 1 7 -ELEVEN, INC. March 31, 2020 Chloe Rempel, Deputy Clerk to the Board Weld County 1150 O Street Greeley, CO 80631 RE: Transfer of Ownership/FMB Off Premises Licenses 7 -Eleven, Inc. dba 7 -Eleven Store 39510H 3914 Colorado Highway 119, Longmont, CO Dear Ms. Rempel: With respect to the control of alcohol beverage product at the above -referenced establishment, back stock for alcohol will be stored in the cooler which is inaccessible to guests. Alcohol doors have locks on the doors that remain locked during restricted hours. Only the manager or lead on duty is able to lock and unlock the doors. The store also verifies video and electronic transactions of receipts to verify that no alcohol sales are happening outside of saleable hours. Our register system also prevents scans of alcohol after 12pm and does not allow any sales before 8am. The store also requires ID for all restricted item sales during saleable hours. Should you have any questions, please do not hesitate to call me at 562-458- 8012. Thank you. Sincerely, Maria Figueroa Senior Flagship Area Manager- West Horizon Zone — 7 -Eleven, Inc. (562) 458-8012 Maria.Figueroa(a7-11.com One Arts Plaza / 1722 Routh Street, Suite 1000 / Dallas, TX 75101 • Mailing Address: Box 711 / Dallas, TX 75221-0711 Chloe Rempel From: Sent: To: Subject: Attachments: Rebecca Spencer <rspencer@dillanddill.com> Wednesday, March 25, 2020 10:58 AM Chloe Rempel 7-11 store 39510H closing docs 39510 bill of sale.pdf; 39510H assign & assump of lease.pdf Caution: This email originated from outside of Weld County Government. Do not click links or open attachments unless you recognize the sender and know the content is safe. Hi Chloe! Attached is the executed Assignment & Assumption of Lease and the Bill of Sale for 7-11 39510H. I am still working on getting the information for the control plan from the new area field consultant. Have a good day and stay safe! 1 PREPARED BY AND WHEN RECORDED MAIL TO: 7 -Eleven, Inc. Attn: Legal Depart. 3200 Hackberry Road Irving, Texas 75063 OO2 - 2gLEUW-jC)2 -121fi SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY New Store No. 39510 Original Store No. 714 3914 State Highway 119 Longmont, Colorado 80504 ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT AND MEMORANDUM OF LEASE This Assignment and Assumption of Lease Agreement and Memorandum of Lease ("Assignment") is made and entered into this 23 day of March , 2020 (the "Effective Date"), by and among CARPCO, LLC, an Iowa limited liability company ("Assignor"), and 7 -ELEVEN, INC., a Texas corporation ("Assignee"). WHEREAS, Assignor, as seller, and Assignee, as buyer, are parties to that certain Asset Purchase Agreement, dated January 31, 2020 (as the same may be modified from time to time, the "Contract"), providing, among other things, for the sale by Assignor and the purchase by Assignee of Assignor's leasehold interest in that certain property leased by Assignor and owned in fee by Burger Avenue Investments, LLP, a Colorado registered limited liability partnership ("Landlord"), at 3914 State Highway 119, Longmont, Colorado 80504, as described on Exhibit A attached hereto and made a part hereof (the "Property"), pursuant to (i) that certain Ground Lease dated February 15, 2011 by and between Landlord, as landlord, and J.D. Carpenter Companies, Inc., an Iowa corporation ("Original Tenant"), as tenant; (ii) as modified by that certain Notice of First Extension of Entitlements Period and Amendment to Lease dated August 11, 2011 by and between Landlord and Tenant; (iii) as modified by that certain Notice of Second Extension of Entitlements Period and Second Amendment to Lease dated September 15, 2011 by and between Landlord and Tenant; (iv) as modified by that certain Notice of Third Extension of Entitlements Period dated October 13, 2011 by and between Landlord and Tenant; (v) as amended by that certain Fourth Amendment to Lease dated December 16, 2011 by and between Landlord and Tenant; and (vi) as assigned by that certain Assignment of Ground Lease dated February 24, 2012 from Original Tenant, as assignor, to Landlord, as assignee (collectively, the "Lease"). The Lease is evidenced by the recording of that certain Memorandum of Lease dated January 24, 2012, recorded December 27, 2012 as Document Number 3898902 with the Clerk and Recorder of Weld County, Colorado (the "Memorandum of Lease"); and 1 62405345v.2 WHEREAS, the Contract provides for Assignor to assign to Assignee, and for Assignee to accept assignment from Assignor, of all of Assignor's right, title and interest in and to the Lease and the Memorandum of Lease; and WHEREAS, pursuant to the Contract, Assignor is required to execute and deliver to Assignee this Assignment; and WHEREAS, Assignor represents and warrants that it has the full power and authority to enter into this Assignment. NOW, THEREFORE, in consideration of these premises, the mutual covenants and conditions contained herein, and in the Contract, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Recitals. The foregoing recitals are true and correct in all material respects and are incorporated herein by reference. 2. Capitalized Terms. Any capitalized terms used but not defined in this Assignment shall have the meanings ascribed to such terms in the Contract. 3. Assignment of Lease. Assignor hereby grants, conveys, sells, assigns, transfers, bargains and delivers unto Assignee, and its successors and assigns, all right, title and interest of Assignor as tenant under the Lease TO HAVE AND TO HOLD all right, title and interest of Assignor under the Lease unto Assignee and its successors and assigns forever. 4. Assumption of Lease. Assignee hereby accepts delivery of Assignor's interest in the Lease, and expressly agrees that from and after the Effective Date, Assignee will assume and faithfully perform all obligations and covenants to be performed by tenant under the Lease. Assignor expressly agrees to remain liable for any and all obligations and covenants to be performed by tenant under the Lease prior to the Effective Date. 5. Assignment of Memorandum of Lease. Assignor hereby assigns to Assignee all of its rights and obligations as tenant under the Memorandum of Lease. 6. Effective Date. This Assignment shall be effective on the Effective Date. 7. Governing Law. This Assignment shall be construed, performed and enforced in accordance with the laws of the State of Colorado. 8. Conflict and Inconsistency. To the extent any conflict or inconsistency exists between the provisions of this Assignment and the Contract, the terms of the Contract shall prevail. 9. Counterparts. This Assignment may be executed in one or more counterparts which shall collectively be deemed an original, but all of which shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Assignment effective as of the Effective Date. [THE REMAINDER OF THIS PAGE INTENTIONALLYLEFT BLANK SIGNATURE PAGES TO FOLLOW] 2 62405345v.2 [SIGNATURE AND ACKNOWLEDGMENT PAGE OF ASSIGNOR TO ASSIGNMENT] WITNESS the following signatures. CARPCO, LLC, an Iowa limited liability company J. David Ca +enter III, Sole Man ACKNOWLEDGMENT STATE OF COUNTY OF fV. tk_ This instrument was acknowledged before me on VA0,/4), ci , 2020, by J. David Carpenter III, as Sole Manager of CARPCO, LLC, an Iowa limited liability company, y RICHARD A. MAW • y Commission F�Convnission Number77i5 686 November 26, 2021 (seal) 62405345v.2 62657319v.2 3 NOTARY PUBL My Commission expires: 13c [SIGNATURE AND ACKNOWLEDGMENT PAGE OF ASSIGNEE TO ASSIGNMENT] WITNESS the following signatures. Attest: By: Robin D. Bryant Name: Title: Assistant Secretary 7 -ELEVEN, INC., a Texas corporation Name: Title: Ian C W lllltrrrs Vice President ... ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF DALLAS § BEFORE ME, the undersigned, a Notary Public in and for the aforesaid County and State, on this day personally appeared Ian C. Wiiiliams and Robin D. Bryant , a(an) Vice President and a(an)Assistant Secretary , respectively, of 7 -ELEVEN, INC., a Texas corporation, known to me to be the persons whose names are subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the corporation and that they each executed the same as the act of such corporation for the purposes therein expressed and in the capacities therein stated. A^ GIVEN UNDER MY HAND AND SEAL OF OFFICE this / 7 day of '"`ct 2020. (seal) 4 62405345v.2 Signature: Typed or printed name: Victoria Baar My commission expires: 4-4 Exhibit A Description of Property The real property referred to herein is situated in the County of Weld, State of Colorado, and is described as follows: Parcel I: A tract of land situate in the NE 1/4 of the NE1/4 of Section 10, Township 2 North, Range 68 West of the 6th P.M., Weld County, Colorado, described as follows: Beginning at the NE corner of said Section 10, thence South 89°31' West 450 feet along the North line of the NE1/4 of said Section 10, thence South 30 feet to the South right-of-way line of Highway No. 119 (formerly known as Highway No. 25), the True Point of Beginning; thence South 89°31' West 65 feet along said South right-of-way line of said Highway; thence South 45°05' West 234.1 feet along the easterly side of an irrigation ditch; thence South 49°35' East 303.0 feet; thence North 362.7 feet more or less to the True Point of Beginning; EXCEPT that parcel in Rule and Order recorded January 19, 1995 at Reception No. 2423540, County of Weld, State of Colorado; and further EXCEPT that portion conveyed by deed recorded January 15, 1971 at Reception No. 1560570. Parcel II: That tract of land located in the NE1/4 of Section 10, Township 2 North, Range 68 West of the 6th P.M., Weld County, Colorado, being more particularly described as follows: Commencing at the NE corner of said Section 10; thence along the North line of said NE1/4 South 89°31'00" West 450.00 feet whence the North 1/4 corner thereof bears S89°31'00" West 2191.17 feet; thence S00°00'00" East 392.20 feet to the Northeast corner of that tract of land known as Parcel 1 as described by Deed recorded at Reception #01932647 of Weld County Records and the Point of Beginning; thence South 90°00'00" West 195.00 feet; thence North 00°00'00" West 166.02 feet to a point on the northeasterly line of that tract of land known as Parcel 2 as described by Deed recorded at Reception #01932647 of Weld County Records; thence along said northeasterly line South 49°35'20" East 256.10 feet to the Point of Beginning, County of Weld, State of Colorado. 62405345v.2 Property #714 7 -Eleven Store #39510 3914 State Highway 119 Longmont, CO GENERAL ASSIGNMENT AND BILL OF SALE THIS GENERAL ASSIGNMENT AND BILL OF SALE ("Assignment"), by and between JKDE, INC., a Iowa corporation (the "Assignor"), and 7 -ELEVEN, INC., a Texas corporation ("Assignee"), is made and entered into effective as of 23rd day of March , 2020. Recitals Assignor and Assignee have heretofore entered into an Asset Purchase Agreement dated as of January 31, 2020 (the "Agreement"), providing, among other things, for the sale by Assignor and the purchase by Assignee of certain assets owned and held by Assignor in connection with Assignor's ownership and operation of a convenience store and motor fuels dispensing facility located at 3914 State Highway 119, Longmont, Colorado (the "Premises"). Pursuant to the Agreement, Assignor and Assignee are required to execute and deliver this Assignment in connection with the consummation of the transaction contemplated by the Agreement. Any capitalized term used but not defined in this Assignment shall have the meaning ascribed to such term in the Agreement. NOW, THEREFORE, in consideration of these premises, the mutual covenants and agreements contained herein and in the Agreement, and other good and valuable consideration, the receipt and sufficiency of all of which are hereby acknowledged, Assignor makes the conveyances and assignments, and Assignee makes the assumptions, and Assignor and Assignee covenant and agree as set forth in the following provisions of this Assignment, to -wit: 1. Conveyance and Assignment of Assets. By this Assignment, Assignor has granted, conveyed, sold, assigned, transferred, bargained and delivered, and hereby grants, conveys, sells, assigns, transfers, bargains and delivers, unto Assignee and its successors and assigns, all right, title and interest in and to the Assets, consisting of, without limitation, (i) Store Equipment, (ii) Merchandise Inventory, (iii) Motor Fuels Inventory, (iv) Supplies, (v) Fixtures, (vi) Goodwill, (vii) Existing Permits, (viii) Motor Fuels Equipment (as described on Exhibit A attached hereto), and (ix) other personal property relating to the operation of the Store Business located on the Premises, excluding the Excluded Assets (such assets being transferred, collectively, the "Subject Assets"). TO HAVE AND TO HOLD the Subject Assets granted, conveyed, sold, assigned, transferred, bargained and delivered pursuant to the preceding provisions of this paragraph 1 to Assignee and its successors and assigns forever free and clear of all liens, interests and encumbrances. 2. Governing Law. THIS ASSIGNMENT SHALL BE CONSTRUED, PERFORMED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE WHERE THE PROPERTY IS LOCATED WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. 3. Conflict and Inconsistency. To the extent any conflict or inconsistency exists between the provisions of this Assignment and the Agreement, the provisions of the Agreement shall control. This Assignment shall not alter or diminish either party's obligations under the Agreement, including but not limited to, indemnification obligations. 62689607v.I 4. Counterparts. This Assignment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. EXECUTED as of the day and year first above written. ASSIGNOR: JKDE, INC., an Iowa corporation By: �avu� Czwrun#w' Name: J. David Carpenter III Its: President 2 712/39528 62689607v 1 ASSIGNEE: Attest: 7 -ELEVEN, INC., a Texas corporation By: 1 By: Keneisha M. Miller Name: Ian Williams Assistant Secretary Its: Vice President 3 712/39528 62689607v.I Property #714 7 -Eleven Store #39510 3914 State Highway 119 Longmont, CO EXHIBIT A Motor Fuels Equipment Tank Number 1 2 Capacity 20,000 20,000 (8,000/12,000 split) Substance Stored Gas Gas/ Diesel Installation Date 4/1/2012 4/1/2012 Construction Fiberglass Fiberglass Single or Double Nall Tank Double Double Cathodic Protection No No Electronic Tank Gauge TLS 350 TLS 350 Manufacturer Veeder Root Veeder Root Interstitial Monitor Yes Yes Containment Sump Yes Yes Sump Sensor Yes Yes Alarm or Shut off Yes Yes Overfill Type Auto shutoff Auto shutoff Stage I Vapor Recovery Yes Yes Stage 2 Vapor Recovery n/a n/a Stage 2 System Type n/a n/a Submersible Pump unknown unknown Leak Detector Electronic Electronic Product Pipe Flex Flex Double wall Yes Yes 62689607v.1 Chloe Rempel From: Sent: To: Subject: Rebecca, Chloe Rempel Tuesday, March 24, 2020 1:57 PM Rebecca Spencer Security Plan for Liquor Storage and Access One of the requirements of Weld County alone is a security plan for liquor storage and access. This can be as simple as Word Doc stating where surplus alcohol will be stored and who has access, locks on doors, security system, etc. When you have a moment, can you send something like that through to me? Thank you, Chloe A. Rempel Deputy Clerk to the Board Supervisor Weld County 1150 0 Street Greeley, CO 80631 tel: 970-400-4213 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. 1 Chloe Rempel From: Sent: To: Subject: Chloe Rempel Tuesday, March 24, 2020 1:36 PM Rebecca Spencer Finalized Assignment and Assumption of Lease Agreement and Memorandum of Lease Hello, Can you please send me a scanned copy of the finalized/signed Lease Assignment document from yesterday? Thank you, Chloe A. Rempel Deputy Clerk to the Board Supervisor Weld County 1150 0 Street Greeley, CO 80631 tel.: 970-400-4213 Confidentia►ity Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. 1 Chloe Rempel From: Sent: To: Cc: Subject: Darrow - DOR, Robert <robert.darrow@state.co.us> Tuesday, March 24, 2020 11:34 AM Chloe Rempel dor_liqlicensing@state.co.us Re: Master Files and Transfer Applications Caution: This email originated from outside of Weld County Government. Do not click links or open attachments unless you recognize the sender and know the content is safe. Sure, Only officers, directors, and shareholders above 10 percent have to submit IHR's. A company can designate someone to have signing authority for ease of operations. This way larger companies don't have to have a board member or officer sign every renewal etc... Since the practice is so common, we just require the board meeting minutes, order, etc.. that designates the individual as a signer for the company. Since the person is not an officer, board member, shareholder above 10 percent, we don't require they have an IHR. Your county commissioners could land on a different opinion, but that is how we handle that situation. Thank You, Robert W. Darrow Agent In Charge, Licensing and Complex Investigations Liquor Enforcement Division 1697 Cole Blvd, Suite 200, Lakewood, CO 80401 office: 303-866-2410 I fax: 303-205-2341 email: robert.darrow@state.co.us www.colorado.gov/enforcement/liquor On Tue, Mar 24, 2020 at 11:26 AM Chloe Rempel <crempel@weldgov.com>wrote: Thank you Robert — can you walk me through the reasoning please so I can explain to my Board? Chloe A. Rempel Deputy Clerk to the Board Supervisor 1 Weld County 1150 0 Street Greeley, CO 80631 tel: 970-400-4213 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: Darrow - DOR, Robert <robert.darrow@state.co.us> Sent: Tuesday, March 24, 2020 11:23 AM To: Chloe Rempel <crempelPweldgov.com> Cc: dor liglicensing@state.co.us Subject: Re: Master Files and Transfer Applications Caution: This email originated from outside of Weld County Government. Do not click links or open attachments unless you recognize the sender and know the content is safe. Sorry to jump in now. We just need the documentation the individual has signing authority. No IHR required. Thank You, Robert W. Darrow 2 Agent In Charge, Licensing and Complex Investigations Liquor Enforcement Division 1697 Cole Blvd, Suite 200, Lakewood, CO 80401 office: 303-866-2410 i fax: 303-205-2341 email: robert.darrow®state.co.us www.colorado.gov/enforcement/liouor On Tue, Mar 24, 2020 at 10:43 AM Chloe Rempel <crempel@weldgov.com>wrote: Thank you! Just as a heads up, 7 -Eleven, Inc., is represented by Kevin Coates with Dill, Dill, Carr, Stonbraker & Hutchings, P.C., who has informed me that he will be contacting the Agent -In -Charge to confirm this information because he stated LED has not required this information for previous transfers. I'm going to go ahead and request the IHR and background check, unless (or if) I hear otherwise from you all. Have a great rest of your day! Chloe A. Rempel Deputy Clerk to the Board Supervisor Weld County 1150 O Street Greeley, CO 80631 tel: 970-400-4213 3 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: alexander.miller@state.co.us <alexander.miller@state.co.us> On Behalf Of LIQLICENSING - DOR, DOR_ Sent: Tuesday, March 24, 2020 10:07 AM To: Chloe Rempel <crempel@weldgov.com> Subject: Re: Master Files and Transfer Applications Caution: This email originated from outside of Weld County Government. Do not click links or open attachments unless you recognize the sender and know the content is safe. Hello, The answers to your questions are as follows: 1) A power of attorney or registered agent can sign the documents. 2) The person signing the forms does have to submit an IHR or go through a background check but there should be supporting documents that state that this individual has signing power. Best wishes, Licensing Department Colorado Liquor Enforcement Division 4 1697 Cole Blvd, Suite 200, Lakewood, CO 80401 office: 303-205-2300 I fax: 303-866-2428 email: DOR LIQLicensinq®state.co.us www.colorado.govienforcement/liquor On Tue, Mar 24, 2020 at 9:59 AM Chloe Rempel <crempel@weldgov.com>wrote: Good morning, I know you all are swamped, but I have a hearing scheduled with the Board of County Commissioners tomorrow to consider a temporary permit for the transfer of CARPCO, LLC, and 7 -Eleven, Inc., dba 7 - Eleven Store 39510A, to 7 -Eleven, Inc., dba 7 -Eleven Store 39510H, and I really need some clarification on the below questions: 1. Do you require the person who signs the application documents to be on the master file? If there is a power of attorney, is that sufficient? 2. Would that person still have to do a background check and complete an IDR since they are not on the master file, but they did sign all of the application documents? The applicant's representative said the State has approved hundreds of transfer applications for this purpose and has never required the person who signs the application documents to complete an IDR and submit to a background check, but I've never processed an application where we have not required exactly that. If someone is available to give me some guidance, I would really appreciate it. Thank you! Chloe A. Rempel 5 Deputy Clerk to the Board Supervisor Weld County 1150 0 Street Greeley, CO 80631 tel: 970-400-4213 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: Chloe Rempel <crempel@weldgov.com> Sent: Thursday, March 19, 2020 11:46 AM To: LIQLICENSING - DOR, DOR <dor liglicensing@state.co.us> Cc: Chloe Rempel <crempel@weldgov.com> Subject: Master Files and Transfer Applications Good morning, I have a couple of questions about master file transfer applications: 1. Do you require the person who signs the application documents to be on the master file? If there is a power of attorney, is that sufficient? 2. Would that person still have to do a background check and complete an IDR since they are not on the master file, but they did sign all of the application documents? Thank you, 6 The Weld County Administration Building, 1150 O Street, Greeley, CO 80631, is currently closed to the public. Please contact me for further information about accessing services typically available in -office. Chloe A. Rempel Deputy Clerk to the Board Supervisor Weld County 1150 O Street Greeley, CO 80631 tel: 970-400-4213 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. Chloe Rempel From: Sent: To: Cc: Subject: Bruce Barker Thursday, March 19, 2020 6:50 PM Chloe Rempel Bob Choate Re: Transfer Liquor License for 7 -Eleven Yes. They are just deleting Carpco. Sent from my iPhone On Mar 19, 2020, at 6:46 PM, Chloe Rempel <crempel@weldgov.com>wrote: Good evening, The attorney for the transfer liquor license application and temporary permit request contacted me and asked if 7 -Eleven, Inc., can start selling alcohol before they are issued a temporary permit? The current licensees are Carpco, LLC, and 7 -Eleven, Inc., and they are transferring the license into the name of 7 -Eleven, Inc. only (just removing Carpco, LLC). Thank you, Chloe A. Rempel Deputy Clerk to the Board Supervisor Weld County 1150 O Street Greeley, CO 80631 tel: 970-400-4213 <image001.jpg> Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. 1 Chloe Rempel From: Sent: To: Subject: Attachments: Rebecca Spencer <rspencer@dillanddill.com> Thursday, March 19, 2020 1:57 PM Chloe Rempel Power of Atty & Entry of Appearance/7-11 39510H transfer Entry of Appearance -Weld Cty BOCC.pdf; 2019 Power of Atty 7-11 signers.pdf Importance: High Caution: This email originated from outside of Weld County Government. Do not click links or open attachments unless you recognize the sender and know the content is safe. Howdy Chloe! Attached is the 7-11 Power of Attorney in which Rankin Gasaway, master filed officer for 7 -Eleven, Inc gives power of attorney to sign licensing applications to Market Manager David Raab. I have also attached an entry of appearance for our firm to represent 7 -Eleven Inc on this application. Stay safe and warm! I am about to lose power at my house! 1 SPR-364 Wine. COLORADO Ce Mar lbw Apphcanf. Legai 1)E'Scrrpfion. PL STAFF REPORT RETAINED IN TYLER. REMAINDER RETAINED IN PAPER LIQUOR FILE. ORIGINAL CASE FILE MAINTAINED BY PLANNING_ SITE PLAN RE VIE W Adini►tistrative Review Sic P B;I Rcwe.v 354 Parcel NurnL-er ':{':i K.rn R -err), ;)oa',. f'ro; e.r',, C)-tinn: Parl SE4 rr` S.!C1 or' :i. 7uwrwl �. 1 I\Orl Rire„e '6 'v', r.51 ,if CIC.rrtp C❑ Ir;rttng Canrrrmr(::r C :1 Ex'sHng Ilse �r�•.ri L r,pr. f: ere•. nn s.'e Rasrri..ra't a rr+J 3.r ri c,a's i�+r irlt:r•; rif 'n it 4Ve:d County. 4�?Ue I S.ic Plan Certif.t::ilicn — r Inc.t..rtel ,ii AFtk;1 .dii, 11 ',H,". RraNnlion c ar'ilings rqa:-•r.nr! - - I - -ES -- f-r.ynee.ir; Ue;r'. 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Pr ,'•erty Marrten.r.,,re - s This _cite Plan Review is approved with the attached conditions. - The Site Plan Review Plat s!r;a'I :ae ;lrep;ired per Sector 23-2-1Cr0 W of the Weld Cou'tly Cc ie The app Icanf shall subrn I a paper copy o` fete plat to, prelrniirary aplrrovai 'r, rl e lr:reld Cctiilty Department or Planning Ser'viCEs Upon approv a Er ;IF payer Copy :rte Zppl rAri' '7al srrlsm:'. a My tar pia1 along wr'h all Other docr.filenlatior Ccn.a:lons of Appr'.a: T e r.i} tar plat Shall he reCordE d Cc..nt'y CIN•k ars:: R'corder :,y _ t.arim1rrlr of P:ar n:rg Services' Slafr w tits 30 days nr a;ip•c,..rl n ! i' ien; of e,Pven $' srr CC la s Per sheet {.Depar.'nant ❑f P'lrn nrJ SCrviEes 1 Prior to recording the Site Plan Review plat, the applicant shall) address the following to the Department of Planning Services' satisfaction The applicant shall submit written evidence to the Department of Planning Services, from the Colorado Department of Transportation demonstrating that all issues and requirements pertaining to ingress and egress access onto a State Highway have been resolved to the satisfaction of this referral agency (Department of Planning Services) B The applicant shall submit wntten evidence to the Department of Planning Services, from the Department of Building Inspection ;stating that the proper permits have been obtained for the two free standing signs on the property that were erected without building permits (Department I of Planning Services, Department of Building Inspections) C The applicant shall submit written evidence to the Department of Planning Services, from the Department of Building inspection stating that the proper and appropriate building final inspections and approval have been received for the 939 square foot addition to the apartment adjacent to the 'motel's office has been obtained (Department of Planning Services, Department of Building Inspections) SH 119 is classified as a Colorado State Highway The applicant should contact the Colorado Department of Transportation (COOT) regarding review of this proposed Site Plan Review adjacent to SH 119 CDOT approval will be required regarding existing access onto SH 119 The applicant should provide written proof to Public Works regarding coordination with CDOTI requirements access, rights -of -way, reservations, improvements, and future expansion (Department of Public Works) Section 23-3-250 A 8 addresses Sewage Disposal Uses located in Commercial Zone Distncts shall have adequate sewage disposal facilities The application materials state that St Vram Sanitation District (SVSD) provides sewer service to the motel facility, including Simons Bar SVSD stipulated' two requirements are to be addressed for continued service The applicant'' shall provide wntten evidence from Rob Fleck, District Engineer, to the Department of Planning Services, stating these conditions have been addressed and/ or met to the satisfaction of SVSD (St Vrain Sanitation District) I bola S►+At s The applicant shall attempt to address the requirements (concerns) of the Mountain View Fire Protection District, as stated in the referral response received September 8, 2003 Evidence of such shall be submitted in writing to the Weld County Department of Planning Services (Department of Plianning Services) G The applicant shall submit evidence to the Department of Planning Services that all conditions and requirements as indicated in the Department of Building Inspection letter dated September 12, 2003 have been met (Department' of Planning Services) H The applicant shall submit a plan describing any proposed on -site signs Any proposed sign shall adhere to Sections 23-4-100 and 23-4-110 of the Weld County Code All proposed signs shall apply for and receive a building permit (Department of Planning Services) %Si s • 3 bH en "'at 1zr c, The applicant shall submit calculations for review by the Department of Public Works for the storm water retention basin, The letter will need to be stamped by a licensed engineer from the State of Colorado. (Department of Public Works) J. The applicant shall submit evidence to the Department of Planning Services that all conditions and requirements as indicated in the Department of Public Health and Environment letter dated August 27, 2003 have been met. (Department of Planning Services) 2. The plat shall be amended to delineate the following: A. Section 23-2-250.A.1 Stormwater Management, states "Ali users of land in Commercial Zone Districts shall provide and maintain stormwater retention facilities designed to retain the stormwater runoff in excess of historic flow from the undeveloped site. The stormwater retention facility on a developed site shall be designed for a one -hundred -year storm. The stormwater retention facility shall be designed and operated to release the retained water at a quantity and rate not to exceed the quantity and rate of a five-year storm falling on the undeveloped site." This shall be delineated on the Site Plan Review plat. (Department of Planning Services) B. Section 23-2-250.A.2 Parking, states 'Sufficient screened, off-street, paved parking areas shall be provided in the Commercial Zone Districts to meet the requirements of employees, company vehicles, visitors and customers of the Uses Allowed by Right and accessory uses." Appendix 23-A addresses the parking requirement for a facility of this type. The 71 room motel requires one (1) parking space per unit for a total of 71 parking spaces. The restaurant and bar area requires one space for six or a minimum of twenty (20) spaces. Finally, one parking space per employee, as stated in the application materials, there are 18 employees. Total parking for this facility is 109 spaces of which two parking spaces shall meet the Americans with Disability Act standards. This shall be delineated on the Site Plan Review plat, (Department of Planning Services) The requirements of the American Disability Act (ADA). ADA parking spaces are twenty (20) feet by eight (8) feet with five (5) foot aisles. A minimum of one space must be van accessible with an eight (8) foot aisle. An accessible path shall be required from the building to the public right-of-way (State Highway 119). Grading shall not be greater than 2% for the handicap stalls and access aisles. The two handicapped stalls must be shown on the plans, along with dimensioning. Further, the ramps from the parking area shall identify a landing area for non - ambulatory users of this facility. This shall be delineated on the Site Plan Review plat (Departments of Planning Services, Public Works) D. Parking for this site plan shall meet County standards as specified in Weld County Code 23.4.30.B and Appendix 23-A and Appendix 23-B. Parking stall standard dimensions are: stall width is 9 -feet, stall to curb is 19 -feet, and aisle width is 24 -feet. Ten percent (10%) of the parking spaces may be for small cars. Small car stall dimensions are: stall width is 8 -feet and stall to curb is 16 -feet. The applicant shall comply with these standards for his Site Plan Review. Include stall dimensioning and the number of classification stalls on the plans. Loading/service areas shall be paved, (Department of Planning Services) E. Article IV - Supplementary District Regulations. Division 1 — Off -Street Parking and Loading Requirements are discussed. The parking requirements shall adhere to Sections 23-4-20, 23-4-30, 23-4-40 (Appendix 23-B) and 23-4-50 of the Weld County Code. The applicant shall adhere to these standards for all on - site parking. This shall be delineated on the Site Plan Review plat, (Department of Planning Services) F. All parking spaces for the employees and clients of this facility shall adhere to the dimensions of Section 23-4.30.0, and Appendix 23-A of the Weld County Code. This shall be delineated on the Site Plan Review plat. (Department of Planning Services) The applicant shall delineate the location of ail curb stops in the parking areas per Section 23-4-30.D of the Weld County Code. This shall be delineated on the Site Plan Review plat. (Department of Planning Services) Section 23-3-250.A.3 addresses Street Access Lots in commercial zone districts shall have safe access to an approved public or private street. The design designation of any street or highway as to type shall be in conformance with that shown on the County Thoroughfare Plan and/or the Master Plan of the affected municipality. This facility accesses directly onto State Highway 119. The application materials did not include evidence of an access permit from the Colorado Department of Transportation, (CDOT). The Colorado Department of Transportation (CDvT) has ,,,,isdictian over all ro to state Highways. y , Please contact CDOT to verify the access permit or for any additional requirements that may be needed to obtain or upgrade an access permit to this facility. Further, the applicant shall provide to the Weld County Department of Planning Services a copy of the access permit issued by the Colorado Department of Transportation (CDOT) which grants access to State Highway 119, or written evidence that the applicant has complied with the requirements of the Colorado Department of Transportation (CDOT), The right-of-way for State Highway 119 shall be delineated right-of-way on the plat. The applicant shall contact CDOT to verify the future right-of-way dimension at this location, This shall be delineated on the Site Play. ReviewL plat. (Department of Planning Services) fr-y tUlpI ipo t`+ '154.. The applicant has provided a facsimile of a letter dated July S, 2003 from Tim Mercer, owner of the Longmont Waffle House, the adjacent property to the west of this facility stating that Mr. Mercer does not have any conflicts with allowing the Longmont Travel Lodge customers to utilize the access associated with this property. The applicant shall submit an easement certificate recorded in the Weld County Clerk and Recorders office signed by all parties associated with this agreement. At a minimum, the easement shall include language outlined in Appendix 24-F.2. Further a legal description shall be included in this document specifically addressing the location and type of easement. (Department of Planning Services) J. Section 23-3-250. A.6 addresses Trash receptacles. Areas used for trash collection shall be screened from public rights -of -way and all adjacent properties. These areas shall be designed and used in a manner that will prevent wind- or animal -scattered trash. The application materials delineated a "dumpster" of unknown dimension in the northeast corner of the property adjacent to the rear property line, This trash receptacle shall be screened from all rights -of -way and adjacent properties with an opaque material. Access to the enclosure shall be gated at all times. This shall be delineated on the Site Plan Review plat. (Department of Planning Services) Section 23-3.250.A.9 addresses Outside Storage, Uses in Commercial Zone Districts involving outdoor storage of vehicles, equipment or materials when permitted shall be screened from public rights -of -way and all adjacent properties. The application materials do not address storage of any materials on site. In the future, should there be any outside storage, the area is to be screened with an opaque material on all sides, (Department of Planning Services) Section 23-3-250.B addresses Operation Standards. Uses in Commercial Zone Districts shall demonstrate conformance with the following operation standards to the extent that they are affected by location, layout and design prior to construction and operation. Once operational, the operation of the Uses permitted shall conform to these standards. f. Noise, Uses and structures in Commercial Zone Districts shall be located, designed and operated in accordance with the noise standards as established in Section 25-12-101 C.R.S, 2. Air Quality. Uses in the Commercial Zone Districts shall be located, designed and operated in accordance with the air quality standards established by the Colorado Air Pollution Control Commission. 3. Water Quality. Uses in the Commercial Zone Districts shall be located, designed and operated in accordance with the water quality control standards established by the Colorado Water Quality Control Commission, 4. Radiation and Radioactive Materials, The handling, use, storage and processing of radioactive materials shall be in accordance with the applicable regulations of the State and the United States government. 5. Heat. Uses located within Commercial Zone Districts shall not emit heat in such an amount sufficient to raise the temperature of the air or of materials at or beyond the lot line more than five (5) degrees Fahrenheit. 6. Light. Any lighting, including light from high temperature processes such as welding or combustion, shall be designed, located and operated in such as manner as to meet the following standards: sources of light shall be shielded so that beams or rays of light will not shine directly onto adjacent properties; neither the direct nor reflected light from any light source may create a traffic hazard to operators of motor vehicles on public or private streets, and no colored lights may be used which may be confused with or construed as traffic control devices, (Department of Planning Services) 3. Section 26.2-50 addresses maximum lot coverage. All land use applications in the MUD area shall adhere to the regulations governing the maximum percentage of lot coverage. The maximum lot coverage is defined as 85% for the commercial zone district. Land shall not be deemed covered if it is used for growing grass, shrubs, trees, plants or flowers it is covered by decorative gravels or wood chips, er if it is otherwise suitably landscaped. 4. Section 26-2-70 addresses the Landscape regulations. Section 26-2-70,B addresses the landscape criteria for all property and development within the MUD area. Section 26-2-70.8.1 states landscapes shall utilize the following principles: (a) well -planned and approved planting schemes; (b) appropriate selection of drought -tolerant turf species to minimize water needs and the use of water -hungry species of turf; (c) mulch to reduce evaporation; (d) zone plant groupings according to their microtrlimatic needs and water requirements; (e) improvement of the soil with organic if needed; (f) efficient - _ �-i .. r.....,. organic matter „4cv cu, cu wicn� irrigation design; and (g) proper maintenance and irrigation scheduling. Sections 26-2- 70.8.2 through Section 26-2-70.B.7 specifically address the criteria to be utilized in the preparation of the Landscape plan. A. Section 26-2-70.C addresses the landscape requirements for parking lots. The following criteria shall be met far this application: 1. A minimum of ten percent (10%) of the area of a parking lot must be landscaped if the lot contains ten (10) or more spaces. The requirement may be counted toward the maximum lot coverage requirement of each zone district. At least seventy-five percent (75%) of the required landscape area shall include living plant material, 2. Berming and shrub or tree planting shall be used to screen parking lots from view of the roadway. Berms can vary in height depending on location and proximity of existing trees. Berms shall have smooth transitions from the top of the curb to the setback line so as to not create snow traps, with allowances made for placement of the sidewalk. Grading of berms shall not be lumpy or abrupt. See Appendix 26-H to this Chapter. 3. Landscaping techniques shall be used !n alieviate the harsh visual appearance that accompanies parking to. See Appendix 26-1 to this Chapter. At least seventy-five percent (75°.,) of the length of the frontage of the parking lot must be effectively screened. 4. A minimum of Five percent (5%) of the parking area shall be landscaped exclusive of setback areas. Trees planted in parking areas should be either in bays or planting islands of at least five (5) feet by five (5) feet. Trees should be distributed throughout the parking area, however, they shall be placed so that they do not obstruct visibility for cars and pedestrians. See Appendix 26-J of the Weld County Code. 5. Loading, service or storage areas must be screened with an opaque screen that is an integral part of the building architecture. Chain link fencing with slats or pallets are not an acceptable screening material, Plant material shall be used to soften the appearance of the screen. 0. Section 26-2-70.0 addresses landscape requirements along roadway corridors, with Section 26-2-70.D.2 addressing the design criteria. 1. Plantings along road rights -of -way shall be integrated with the rest of the site, 2. That portion of a lot in any zone district which abuts a public or private road right-of-way shall be landscaped with a minimum two-and-one-half- nch caliper shade tree or six-foot minimum height coniferous tree at a distance of ten (10) feet, measured at a right angle from the lot line towards the interior of the lot, for every forty (40) linear feet of street frontage. Trees may be grouped with a maximum distance of one hundred (100) feet between trees or groupings, with exceptions made at entrance drives. 3. A minimum landscape setback along State Highway 119 shall be fifty (50) feet measured from the existing or planned future right-of-way. 4. Along State Highway 119, tree planting distances shall be clustered or grouped from the roadway to avoid a straight line of trees. The effectiveness of the screening shall be increased by planting trees and shrubs in layered beds (two [2] or more rows of plant material rather than a single row). A mix of coniferous and deciduous trees and shrubs shall be planted in clusters or groupings. 5. Applicants adjacent to State Highway 119 shall construct a berm along State Highway 119 with maximum 5:1 side slopes to a height sufficient to screen ground plane development (parking lots, storage areas or other similar site elements) as far as one hundred eighty (1$U) feet from the right-of-way line (fifty [50] feet of landscape setback plus one hundred thirty [130] feet of site development). The maximum height berm required `hall be Six (5) feet above the existing elevation in the ioeation of the berm. If needed, additional height beyond that which can be achieved with a six -foot -high berm shall be achieved through dense landscape plantings. Plantings on top of berms shall be designed so as to not create snow traps. A berm may not be required if the subject property is elevated above the roadway and if can be demonstrated that views into the site will not be possible for a distance of one hundred eighty (180) feet. Required landscaping and screening within the landscape setback and other portions of the property shall be governed by the landscape standards contained within this Chapter and any other more restrictive requirements contained in Chapters 23 and 24 of this Code. 6 There shall be a minimum twenty -foot -wide landscape setback measured from the existing or planned future right -at -way to any parking lot, fencing, storage area or structure. Required landscaping and screening within the landscape setback and other portions of the property shall be governed by the landscape standards contained within this Chapter and any other more restrictive requirements contained in Chapters 23 and 24 of this Code. 5 The Landscape Plan, shall at a minimum, delineate: A. The applicant shall include in the Landscape Plan in accordance with Section 23- 3-250.A.5, delineating the following information: B. The installation schi Jule that specifies when the landscaping will be installed on site. (Department of Planning Services) C. A Plant Material List specifying the Botanical and Common names of all plant material to be installed, the size of the plant material at installation and whether the plant material is to be containerized or B&B. (Department of Planning Services) D. A landscape maintisnance schedule which specifically states who will perform maintenance and that maintenance is on -going and shall not end upon final acceptance by the Department of Planning Services. (Department of Planning Services) E. The size, type and color of the gravel mulch shall be noted. (Department of Planning Services) F. The size of the metal edging, if applicable, shall be noted. (Department of Planning Services) G The method of nativrs grass planting shall be called out as drilled or broadcast and applied at a rate of how many pounds per acre, and/or pounds per square foot. (Department of Planning Services) H. Section 26-2.90 addresses the Sign regulations, with Section 26-2-90.B defining the sign district regulations. 1, No sign shall be structurally erected, enlarged, constructed, reconstructed. relocated, refaced or otherwise altered in the MUD area without first obtaining a building permit from the Department of Planning Services. 2. No sign shall be erected at or near the intersection of any road or driveway in such a manner as to obstruct free and clear vision of motorists or at any location where, by reason of the position, shape or color, it may interfere with, obstruct the view of or be confused with any authorized traffic sign, signal or device. Signs located at an intersection must be outside of the sight distance triangle. 3. No sign other than traffic control signs shall he erected, constructed or maintained within, over or upon the right-of-way of any road or highway within the MUD area. 4. All signs and components, including supports, braces and anchors, shall be of sound structural quality and shall be kept in a state of good repair with a clean and neat appearance. 5. Section 26-2-90.D.2 addresses attached signs: size, height and design limitations. A. Awning signs shall not be larger than twenty-five (25) square feet nor ten percent (10%) of the awning surface area, whichever is smaller. B. Marquee, canopy, overhead canopy, under -canopy, projecting or wall signs: 1. Minimum height requirements: These signs shall be mounted at least fourteen (14) feet above any driveway and at least nine (9) feet above any walkway over which they are erected. 2. Maximum height requirements. The top line of these signs shall not be higher than the top of the wail, roof eaves or parapet line of the building to which it is attached, C. Section 26-2-90.0.3 addresses detached signs: size, height and design limitations. 1. Detached signs shall not be located in the visual sight triangle. 2. Off -site detached signs shall have a minimum setback of twenty-five (25) feet and a minimum offset of ten (10) feet from the road right-of-way. 3. On -site identification signs shall have a minimum setback of fifteen (15) feet and a minimum offset of ten (10) feet from the road right-of-way. 4. Detached signs shall have surrounding landscaping which extends a minimum of three (3) feet from all sides of the sign base. 5. The total height of any monument or pole sign shall not exceed twenty-five (25) feet above the adjoining ground elevation. 6. Monument signs shall have an enclosed, solid base or structural base with the base at least three -fourths (3/4) the width of the widest part of the sign face. An enclosed or solid sign base shall not be required if the lower edge of the sign face is not higher than one (1) foot above the finished grade. Monument signs shall be on -premises signs, the sign area shall not exceed twenty-five (25) square feet, and the sign shall not exceed five (5) feet in height above the average adjacent grade, if located fifteen (15) feet from the street right-of-way. For each additional two (2) feet of setback from the street right-of-way, one (1) additional foot may be added to the height of the sign to a maximum of eight (8) feet. D. Section 25-2-90.D.4 addresses Development Complex Signs: Definition, Size and Design Limitations, 1. A development complex sign is a detached sign on the premises of the development which primarily identifies or directs attention to the name, symbol or location of the development complex. 2. A development complex is a group of freestanding buildings or buildings constructed in such a way as to give an appearance of being interrelated due to architectural similarity, interconnected drives, parking areas and/or platting of the development. A development complex includes uses which provide a combined sense of place such as office or business parks, shopping centers, industrial parks, apartment complexes and hotels. 3. The minimum spacing between signs shall be six hundred (600) feet. E. Section 23-4-100 addresses signs in the commercial and industrial zone districts. This facility is permitted to have 2 signs per Lot, with each sign face area being 150 square feet or less. All other standards shall comply with Section 26-2-90.D.3 1. Signs attached flush against a supporting wall, but not above the roof line, there are no limitations on a sign solely used for identification purposes. However, Section 23-4-100.D.2 states one nameplate, per public entrance, per business, of not more than two (2) square feet per face which is suspended under a canopy. Subsection D,3 states, the sum of all commercial building identification signs on a given building shall not exceed eight (8) percent of that wall. This facility has numerous signs located on site, including a temporary banner sign that is to be removed within ten (10) days after the event has occurred, The applicant shall provide evidence of compliance with the sign code as addressed herein, Further, the applicant shall bring into compliance the two on -site signs as addressed in a referral received from the Department of Building Inspection dated September 12, 2003. Written evidence of compliance with the requirements of the Department of Building Inspection referral shall be submitted to the Department of Planning Services. 6. The following notes shall be placed on the plat: 1. In accordance with the Weld County Code, no land, building or structure shall be changed in use or type of occupancy, developed, erected, constructed, reconstructed, moved or structurally altered or operated in the Commercial Zone District until a Site Plan Review has been approved by the Department of Planning Services. (Department of Planning Services) 2. The application does not propose any portion of the site to be leased to another party. In the event that a portion of the building is proposed to be leased to another party in the future, the applicant shall submit a copy of the lease agreement and information regarding the proposed use of the leased portion to the Weld County Attorney's office, Weld County Building Inspection Department, Mountain View Fire Protection District and the Department of Planning Services for review. Based upon the proposed use andlor impacts of the leased portion, the Department of Planning Services may require a new Site Plan Review application. (Department of Planning Services) 3. There shall be no parking or staging of trucks allowed State Highway 119. (Department of Planning Services) 4. All liquid and solid wastes (as defined in the Solid Wastes Disposal Sites and Facilities Act, 30-20-100, C.R.S., as amended), shall be stored and removed for final disposal in a manner that protects against surface and groundwater contamination. (Department of Public Health and Environment) 5. No permanent disposal of wastes shall be permitted at this site. This is not meant to include those wastes specifically excluded from the definition of a solid waste in the Solid wastes Disposal Sites and Facilities Act, 30-20.100.5,C.R.S., as amended. (Department of Public Health and Environment) 6. Waste materials shall be handled, stored and disposed of in a manner that controls fugitive dust, blowing debris and other potential nuisance rnnriitinnc (nanortmant of PiiihIilc Health and Environment) rw, 7. The facility shall adhere to the maximum permissible noise levels allowed in the Commercial Zone District, as delineated in 25-12-103, Colorado Revised Statutes, as amended, (Department of Public Health and Environment) B. Fugitive dust shall be controlled on this site. (Department of Public Health and Environment) 9. The facility shalt utilize the St. Vrain Sanitation District for sewage treatment and disposal. (Department of Public Health and Environment) 10. The facility shall obtain water service from the Left Hand Water District. (Department of Public Health and Environment) 11, The facility shall comply with the Colorado Retail Food Establishment Rules and Regulations governing the regulation of food service establishments. (Department of Public Health and Environment) 12. The facility shall contact a commercial waste hauler to remove and dispose waste products. (Department of Public Health and Environment) 13. Landscaping materials as indicated in the approved landscape plan shall be maintained at all times. Dead or diseased plant materials shall be replaced with materials of similar quantity and quality at the earliest possible time. (Department of Planning Services) 14, Ail structures, including signs, on site must obtain the appropriate building permits. (Department of Planning Services) 15. Effective January 1, 2003, Building Permits will be required to adhere to the fee structure of the Weld County Road Impact Program. (Ordinance 2002-11) (Department of Planning Services) 16. The applicant the adhere to the lighting requirements for off-street parking spaces per Section 23-4-30.E of the Weld County Code. (Department of Planning Services) 17. The applicant shall adhere to the lighting standards, in accordance with Secton 23-2-250 and Section 23-3-250.9.6 of the Weld County Code. (Department of Planning Services) 18. Property Maintenance. Property located within Commercial Zone Districts shall be maintained in such a manner that grasses and weeds are not permitted to grow taller than twelve (12) inches. In no event shall the properly owners allow the growth of noxious weeds. (Weld County Codification Ordinance 2000-1) {Department of Planning Services) 6. Prior to Recording the Plat: A. The applicant shall enter into an Improvements Agreement according to policy regarding collateral for improvements and post adequate collateral for parking and landscaping requirements. The agreement and form of collateral shall be reviewed by County Staff and accepted by the Board of County Commissioners prior to recording the plat. (Department of Planning Services) 7. Prior to the release of building permits: A. A Final Site Plan and building construction plans must be submitted to the Mountain View Fire Protection District for review and approval. The applicant shall submit written evidence of approval to the Department of Building Inspection. (Mountain View Fire Protection District) B. Upon approval by the Department of Planning Services, the Site Plan Review shall be prepared per Section 23.2-260.D of the Weld County Code and submitted to the Department of Planning Services to be recorded. (Department of Planning Services) C. The applicant shall submit two complete sets of blueprints to the Weld County Department of Building Inspection. (Building Department) Effective January 1, 2003, Building Permits issued on the proposed lots will be required to adhere to the fee structure of the Weld County Road Impact Program. (Ordinance 2002-11) (Department of Planning Services) D. E. The applicant shall receive approval from the Department of Planning Services for a Geologic Hazard Permit, Permit Number GHDP-2O. Al! requirements as outlined in the GHDP letter shall be addressed to the satisfaction of the Department of Planning Services, (Department of Planning Services) B. Prior to operation A. The facility shall provide evidence to the Department of Planning Services that the restaurant is appropriately licensed and meets all requirements of the Colorado Retail Food Establishment Rules and Regulations. Please review the enclosed materials and then call to schedule an appointment so that I may reserve a sufficient amount of time with you. The purpose of the meeting will be to familiarize you with the requirements identified in the referrals associated with this letter and the procedure for completing the Site Plan Review plat that shall be submitted for recording within 30 days of the date of this letter. In this instance, November 7, 2003 unless other arrangements have been approved by this office, Site Plan Review conditionally approved by: Date: Planner October 3, 2003 M.M0u. OMM MA. MUM I RI 1 SITE PLAN REVIEW 364 TRAVELODGE OF LONGMONT LLLLL ucam.a.soaMiw=.E.. --t zuuJUY cu L./C/N/rr, Msr' III I BREP.M AEVLEwMOMS: Hello